Thursday, October 6, 2016

ISCD Publishes CFATS Advisory Page

Today the DHS Infrastructure Security Compliance Division (ISCD) added a new page to their Chemical Facility Anti-Terrorism Standards (CFATS) program web site. The new CFATS Advisory page was announced on the CFATS Knowledge Center web page. As of this evening the new page is not listed on the CFATS landing page; I expect that that will change tomorrow.

Like most regulatory agencies, ISCD has been asked to clarify certain aspects of how the agency interprets the regulations that they enforce. Starting today ISCD is publicly publishing those interpretations that they believe would be of interest to other members of the regulated community. They are starting with three advisories published yesterday:

CFATS ADVISORY OPINION 2016-001 - RBPS-12 Background Check Requirements for Legacy Employees;  
CFATS ADVISORY OPINION 2016-002 - “A Commercial Grade” Interpretation; and
CFATS ADVISORY OPINION 2016-003 - “Transportation Packaging” Interpretation 

Background Check Requirements

The first opinion actually dates back to May of this year, when ISCD sent the letter attached to the opinion to a CFATS covered facility. It addresses the issue of whether or not long-term legacy personnel are required to be vetted under the background check requirements of 6 CFR §27.230(a)(12). The opinion clearly states:

“The Department of Homeland Security’s longstanding position and interpretation of 6 C.F.R. § 27.230(a)(12) is that background checks are required to be conducted for all facility personnel with access to restricted areas or critical assets at high-risk chemical facilities, regardless of their length of service, as described in more detail in the attachment.”

While the opinion does not separate out any of the specific background checks required under subparagraph (12), the attached letter makes it clear that it specifically does apply to the background checks conducted by the facility under (12)(i), (12)(ii) and (12)(iii) since the facility is not currently covered under the Terrorist Screening Database (TSDB) vetting conducted by DHS under the DHS personnel surety program (PSP).

A Commercial Grade

The list of DHS chemicals of interest (COI) that triggers the reporting requirement for the CFATS Top Screen includes a column that lists the minimum concentration of the COI that must be included in determining if the facility has a screening threshold quantity (STQ) that would require reporting to DHS. For most chemicals that concentration, but for many it is listed as ACG – ‘a commercial grade’. This second opinion explains that ISCD uses two criteria for determining if a chemical meets the ACG standard:

(1) any concentration of a COI that is available in trade or commerce under the name of that COI; or
(2) any mixture of a COI that poses the same or similar security risks for which the COI is listed in Appendix A

This is based upon the words ‘quality’ and ‘concentration’ used in the definition of ‘a commercial grade’ in §27.105.

Transportation Packaging

Facilities are only required to count inventories of theft/diversion COI that are in ‘transportation packaging’. That term is not specifically defined in §27.105. This opinion quotes the preamble to the CFATS Appendix A final rule (72 FR 65395-65435), explaining that ISCD is using the DOT definition of ‘packaging’ found in 49 CFR §171.8 and the minimum requirements for that packaging found in §173.24(b).

The opinion notes that there is one important difference between the DOT regulations and the DHS interpretation of those regulations as it applies to the term ‘transportation packaging’. A DOT packaging that has been modified so that it no longer meets the standards of §173.24(b) if that modification could easily be reversed. The example provided in the opinion is removing a lid from the packaging, but it would almost certainly include adding a hose connection to process equipment when acting as a temporary storage tank for the process.


I am glad to see ISCD making these advisory opinions publicly available. I am quite sure that they have been providing this type of information in response specific questions from regulated facilities since the program began in 2007. Making the information publicly available will help ensure that the entire regulated community has a better understanding of how ISCD is overseeing the implementation of the CFATS program.

I am glad to see that ISCD is providing more details outlining their reasoning in establishing these opinions than they do in their responses to their frequently asked question found on the CFATS Knowledge Center. The discussions in these opinions are more like the ‘articles’ that are also listed in the FAQ section.

Needless to say, I will be watching this page for additional opinions and will report on them as they are published.

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