Thursday, April 13, 2017

ISCD Publishes Three FAQ Updates

Today the DHS Infrastructure Security Compliance Division (ISCD) published three revised frequently asked question (FAQ) responses on its Chemical Facility Anti-Terrorism Standards (CFATS) Knowledge Center. While many recent changes have been made to add regulatory links, the three FAQ responses published today had some significant word changes.

The three FAQ responses that were updated today were:

FAQ #1291

The basic change to this FAQ response was the addition of links to the CFATS regulation and to the CFATS Advisory Opinion web site where there is a link to Opinion 2016-02 that addresses the ‘A Commercial Grade’ (ACG) issue in some detail. The greater detail found that opinion apparently provides a reasonable justification to remove some of the explanatory wordage in the original FAQ response.

FAQ #1383

The new FAQ #1383 response if very much shorter than the original response. It removes the explanation of why ANFO is not treated as an explosive by the CFATS program. While the new answer does specifically answer the question posed, I think that the information provided in the earlier version should have been retained for clarities sake. For the record, here is the old response with the deleted language highlighted:

No. As stated in the preamble to the final Appendix A to the Chemical Facility Anti-terrorism Standards (CFATS), the only explosive Chemicals of Interest (COI) listed in Appendix A (i.e., release explosives and theft/diversion explosives) are those listed by the Department of Transportation (DOT) as Class 1, Division 1 explosives. See 72 Fed. Reg. 65402-65403, [Link Added] 65405 & n. 37 (Nov. 20, 2007). Although ANFO is an explosive, it is not listed by DOT as a Division 1.1 explosive, and thus it is not covered by Appendix A. However, a facility that manufactures ANFO and possesses any chemical of interest (e.g. ammonium nitrate) in a quantity at or above the applicable STQ would be required to submit a Top-Screen.

FAQ #1437

The response to FAQ 1437 is a complete re-write of the original FAQ response; removing any mention of ACG which was never really pertinent to the question. Unfortunately, the new language is a little bit confusing until one actually looks at the Appendix A table.

The new response states:

“As provided in 6 CFR §27.203(d),, a facility shall count toward the STQ the total quantity of any placarded amount of a sabotage/contamination chemical that the facility ships.”

The actual wording of §27.203(d) reads:

“A facility meets the STQ for a sabotage/contamination chemical of interest if it ships the chemical and is required to placard the shipment of that chemical pursuant to the provisions of subpart F of 49 CFR part 172 [Link Added].”

The way the regulation reads, if a facility ships one shipment of a sabotage/contamination chemical of interest that DOT required to be placarded (either on the container or the vehicle carrying the material) then the facility would have met the STQ requirements for that COI, regardless of the size of the shipment. The FAQ response would seem to indicate that you could have some number of placarded shipments of a sabotage/contamination COI, but not yet reach the COI level.

Looking at the COI table in Appendix A, however, quickly clears up the matter. The STQ for all sabotage/contamination COI is listed as ‘APC’ or ‘a placarded amount’; confirming that a single placarded shipment of the COI would meet the STQ for that sabotage/contamination COI.

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