ISCD Updates 2 FAQ Responses – 10-13-20

Yesterday the CISA Infrastructure Security Compliance Division (ISCD) updated the responses to two frequently asked questions (FAQs) on the Chemical Facility Anti-Terrorism Standards (CFATS) Knowledge Center web page.

The following FAQ responses were revised:

FAQ #1770 How will the Cybersecurity and Infrastructure Security Agency (CISA) protect the data it collects? Can Chemical-terrorism Vulnerability Information (CVI) be released under the Freedom of Information Act (FOIA)?

FAQ #1784 Does a facility have to count theft/diversion chemicals of interest (COI) in transportation packaging towards the screening threshold quantity (STQ) if the COI is on or attached to motive power, to include an overnight stay?

NOTE: The links provided for the FAQs in this post were copied from the CFATS Knowledge Center but may not work when followed from your machine. This is an artifact of that web site. If the links do not take you to the referenced FAQ you will have to use the ‘Advanced Search’ function on the page to link to the FAQ or download the ‘All FAQs’ document at the bottom of the ‘Advanced Search’ page.

The following changes were made in the referenced responses:

#1770 Complete rewrite of FAQ and response, but no change in policy or procedure.

#1784 Provides links to regulation and Federal Register cites.

For reference purposes, here is what the language of FAQ 1770 and its response read before yesterday’s changes:

Question: Can Chemical-terrorism Vulnerability Information (CVI) be released under the Freedom of Information Act (FOIA)? 

Answer: No. Notwithstanding the Freedom of Information Act or FOIA (5 U.S.C. 552), the Privacy Act (5 U.S.C.552a), and other laws, in accordance with the Homeland Security Act as amended by the Protecting and Securing Chemical Facilities from Terrorist Attacks Act of 2014, Public Law 113-254, and 6 C.F.R. § 27.400(g), records containing CVI are not available for public inspection or copying, and the Department does not release such records to persons without a need to know.

Further, as provided in 6 C.F.R. § 27.405, no law, regulation, or administrative action of a State or political subdivision thereof shall have any effect if such law or regulation conflicts with the Chemical Facility Anti-Terrorism Standards (CFATS). Requests for CVI under State or local FOIA or open records laws should be referred to the DHS National Protection and Programs Directorate (NPPD) Information Management and Disclosure Office, NPPD.FOIA@hq.dhs.gov.

If a record contains both information that may not be disclosed under Public Law 113-254 and information that may be disclosed, the latter information may be provided in response to a FOIA request, provided that the record is not otherwise exempt from disclosure under FOIA and that it is practical to redact the protected CVI from the requested record.

Note: Please refer to the “Safeguarding Information Designated as Chemical-terrorism Vulnerability Information (CVI) Handbook” for more information. The Handbook is available at https://www.dhs.gov/publication/safeguardinginformation-cvi-manual.