Thursday, September 24, 2015

DHS Updates CFATS Knowledge Center – Four New FAQs

This afternoon the folks at DHS Infrastructure Security Compliance Division (ISCD) published a notice on the CFATS Knowledge Center announcing that they had added four new frequently asked questions (FAQs) dealing with the temporary Top Screen extension (still in effect) that was announced for agricultural production facilities on December 21st, 2007 and formally published in the Federal Register on January 9th, 2008.

The four new questions are:


On December 21st, 2007, during the middle of the initial Top Screen submission period, ISCD published a letter that many felt was a substantial concession to the agriculture lobby that provided essentially an open-ended extension of the requirement to file a Top Screen for any agricultural production facility that had sufficient quantities of DHS chemicals of interest (COI) on hand that would require them to submit a Top Screen under 6 CFR 27.200(b)(2).

An ‘agricultural production facility’ was defined in the letter as “facilities such as farms (e.g., crop, fruit, nut, and vegetable); ranches and rangeland; poultry, dairy, and equine facilities; turfgrass growers; golf courses; nurseries; floricultural operations; and public and private parks”. Additionally, the letter made clear that the term did not apply to “chemical distribution facilities, or commercial chemical application services”.

The letter also explained that the ‘temporary’ exemption only applied to two types of COI; those used:

“(I)n preparation for the treatment of crops, feed, land, livestock (including poultry) or other areas of an agricultural production facility; or
“(D)uring application to or treatment of crops, feed, land, livestock (including poultry) or other areas of an agricultural production facility.”
The Federal Register notice two weeks later further clarified that the exemption did not apply to fuels stored on those agricultural production facilities.

The letter tried to make it clear that DHS felt that it did not have enough information about operations at agricultural production facilities to make an informed risk assessment on these facilities based solely on the information contained in the Top Screen. In attempt to collect additional information about these types of operations in July 2010 DHS requested 1274 CFATS high-risk covered facilities that may sell, transfer or commercially apply COI-containing products (e.g., pesticides, fertilizers) used in agricultural activities by agricultural production facilities complete an Agriculture Survey about those COI.

FAQ Responses

The responses to all four questions posted today make it clear that the Top Screen exemption only applies to agricultural production facilities. Even for those facilities it only applies to COI and amounts of COI that are actually applied to the defined agricultural fields. COI used in other operations on those facilities would still be required to be reported on a Top Screen to ISCD if they exceeded the screening threshold quantity (STQ) set forth in Appendix A to 6 CFR 27.


It is more than a little disturbing to me that almost eight years after this ‘temporary exemption’ was published that ISCD is now publishing these FAQ. FAQ’s are supposed to represent actual questions that have been asked by people in the private sector either via the CFATS Knowledge Center or directly to the CFATS Help Desk ((866) 323-2957 or via this web form). From the way the questions are presented it would seem that there are some number of facilities to which the Top Screen extension does not apply that have not yet submitted Top Screens because of the presence of the exemption.

We have no way of knowing if these are new facilities that are trying to determine if they fall under the exemption or if they were asked by facilities that should have submitted a Top Screen years ago but are just now being identified through the ISCD’s various outreach programs. I would like to think that it is the former, but I more than suspect that it is more of the latter.

The real question that these four new FAQs pose is why does this ‘temporary’ exemption still exist? The completion of the Top Screen is a relatively simple on-line exercise. For most agricultural production facilities it will take less than an hour; probably 10 or 15 minutes. Furthermore, is extremely unlikely given the physical isolation of most of these facilities that ISCD’s threat assessment process would find that these are high-risk chemical facilities that would then be required to complete a security vulnerability assessment and ultimately develop and implement a site security plan.

Of course, if that is not true; and a significant number of these facilities really are at high-risk of terrorist attack due to the presence of these COI then ISCD has been criminally negligent in allowing this ‘temporary’ exemption to continue for so long. The exemption ought to be closed, post haste, and all of these facilities should be given a reasonable time (90 days?) to complete and submit their Top Screen. Only then will we really know if this exemption provided almost eight years ago really was a reasonable exercise of regulatory discretion.

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