Tuesday, November 14, 2017

CFATS Reauthorization – Agricultural Production Facilities

This is the second in a continuing series of blog posts on my proposed changes to the CFATS authorization. The current authorization for the program ends on December 18th, 2018. These posts address some of the language that I would like to see in any re-authorization bill. The initial post was:

The Current Exemption

In January of 2008, shortly after the initial Top Screen submission requirements were established, DHS caved to the agriculture lobby and published a notice in the Federal Register explaining that “until further notice or unless specifically notified in writing” agricultural production facilities were not required to submit Top Screens for DHS chemicals of interest (COI) (except propane or fuel) held in quantities in excess of the screening threshold quantity (STQ) if those COI were used:

• In preparation for the treatment of crops, feed, land, livestock (including poultry) or other areas of an agricultural production facility; or
• During application to or treatment of crops, feed, land, livestock (including poultry) or other areas of an agricultural production facility.

While this is technically an extension of the time requirement for the submission of a Top Screen (by regulation 90 days from the publication of the original Top Screen requirement in December 2007 or within 60 days of holding a COI at or above the STQ), because of the length of time that has elapsed since this notice was published, this has, in reality, become the 5th type of facility exempted from the reporting requirements of the CFATS regulations.

The Basis for the Exemption

The agriculture lobby has argued since the inception of the CFATS program that agricultural production facilities should not be considered chemical facilities under this program because they were hardly targets of terrorist attack based upon the presence of COI, generally due to their relatively isolated locations. This is certainly true for release consequence chemicals like anhydrous ammonia or propane; an ammonia cloud or propane fire on a farm is going to have very limited effect on the neighboring community.

The one potential large-scale chemical threat was the theft of the improvised explosive precursor, ammonium nitrate. When this notice was published, Congress had just enacted legislation specifically requiring DHS to set up a separate chemical security program to address the security of ammonium nitrate, so it appeared that the threat of the theft of this chemical would be adequate addressed under that program, so CFATS coverage would not be that important.

The agriculture community was convinced that DHS would take their remote locations into account when analyzing the data submitted in the Top Screen to determine whether or not their facilities presented a risk of terrorist attack. DHS was not willing to talk about any of the details of their risk assessment process, nor were they willing to delay its implementation to allow for an outside review of that process.

In light of these concerns, given the isolated locations of most of these facilities, and not wishing to undertake a political or court fight with the well-funded agriculture lobby that might end up undermining the whole CFATS program, DHS implemented the ‘Top Screen extension’.

Option 1

The easiest way to deal with this situation would be to make the ‘extension’ legally permanent. This would be done in two steps. First the following definition of ‘agricultural production facility’ would be added to 6 USC 621:

The term “agricultural production facility” means:

(A) a facility operated for the commercial production of products by the means of cultivating soil; planting, raising, and harvesting crops; or rearing, feeding, and managing animals; and
(B) it specifically includes 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.

Then the definition of ‘excluded facility’ in §621(4) would be amended by adding:

(f) Agricultural production facility as that term is defined in this section; unless that facility possesses propane, fuel, or fumigant chemicals included in the list of DHS chemicals of interest as defined in Appendix A, 6 CFR 27.

I did add ‘fumigant chemicals’ to the list in (f) because the DHS Infrastructure Security Compliance Division (ISCD) recently ‘clarified’ that the current extension does not apply to fumigants.

Option 2

The problem with both Option 1 and the current ‘extension’ is that it fails to take into account the presence of theft-diversion chemicals such as ammonium nitrate. The second option takes a more nuanced approach to the exemption. It would start with adding the definition of an ‘agricultural production facility’ described above. It would then add a new §630:

Sec. 630 – Agricultural Production Facilities

(a) General – The Secretary will take into account the general geographic isolation of agricultural production facilities as that term is defined in the addition to §621 provided in this Act in implementing the CFATS program.

(b) The Secretary will ensure that the current risk assessment processes and protocols used by the Department take into account the following considerations:

(1) the geographically isolated nature of agricultural production facilities;
(2) the ease with which outsiders are generally recognized in communities surrounding agricultural production facilities;
(3) and the difficulties an outsider would have in obtaining information about the presence, storage locations and security measures in place at an agricultural production facility.

(c) For any agricultural production facility that is more than 1 mile distant from any public or private school, place of worship, or other similar place of regular or routine public assembly, the Secretary will:

(1) Exempt such facilities from the reporting requirements of §622(a)(2)(b) for any release security risk chemicals of interest listed in Appendix A, 6 CFR 27; and

(2) Exempt such facilities from the reporting requirements of §622(a)(2)(b) for any release sabotage and contamination risk chemicals of interest listed in Appendix A, 6 CFR 27.

(d) Will work with the Secretary of Agriculture to develop an addendum to the Risk Based Performance Standards guidance document that will:

(1) Identify the specific risk based performance standards that specifically apply to those facilities that only have theft-diversion security risk chemicals;

(2) Provide performance standards specific to agricultural production facilities taking into account the considerations outlined in (b)

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