CFATS FY 2019 Outreach Plan

Today the DHS Cybersecurity and Infrastructure Security Agency (CISA) published their FY 2019 Chemical Facility Anti-Terrorism Standards (CFATS) Outreach Implementation Plan. This annual report was required by the 2014. This document provides a summary of activities undertaken in 2018 and planned for 2019 to implement the CFATS outreach requirements set forth in 6 USC 622(e)(1) and 6 USC 629. This is a follow-up to the FY 2018 report published earlier this year.

Outreach Program

Very little information in this 48-page pamphlet will be of direct interest to covered CFATS facilities; they are not really the target of this outreach effort. This effort is targeted at potential chemical facilities of interest (P-CFOI, facilities that may hold DHS chemicals of interest) to ensure that those facilities are knowledgeable of the CFATS reporting requirements for facilities that hold COI at or above the screening threshold quantity outlined in Appendix A to 6 CFR 27.

A quick read of the document does provide some interesting factoids.

As part of the roll-out of CSAT 2.0 in the fall of 2016, 3,013 facilities submitted first-time Top Screens, and of those, 335 have been added to the CFATS program as being high-risk facilities; a conversion rate of 11.1%.

In FY 2018, presumably as a result of the on-going outreach program, and additional 1,269 facilities submitted first-time Top Screens with 184 of those being added to the CFATS program; a 14.5% conversion rate.

As part of the FY 2019 outreach program, CISA will be targeting a slightly different set of industries that it believes may be under-represented in Top Screen submissions. This year the shorter list includes (pg 13):

• Glass and glass products manufacturing;

• Propane distribution;

• Plastics manufacturing;

• Grain and oilseed milling;

• Frozen food manufacturing;

• Dairy product manufacturing;

• Animal slaughtering and processing;

• Agriculture co-ops; and

• Soap, cleaning compound, and cosmetics manufacturing

LEPC Outreach

One interesting new addition to this outreach program document this year is found in Appendix B, Local Emergency Planning Committee (LEPC) Focused Outreach. This part of the outreach program is not directed at identifying new P-CFOI. Rather it is an attempt to answer a recommendation of the latest Government Accountability Office (GAO) report on the CFATS program about increased sharing of information with Local Emergency Planning Committees (LEPCs) and emergency response personnel.

Appendix B lists the 95 LEPCs receiving specific outreach efforts from the Infrastructure Security Compliance Division (ISCD) of CISA. It notes that these 95 LEPCs in 45 counties represent 870 existing CFATS facilities. Three counties account for the bulk of these LEPCs;

Middlesex County, MA (13), Middlesex County, NJ (25), and Harris County, TX (13).

With the concentration of chemical manufacturing and shipping in Harris County, TX it is heartening to see the substantial number of LEPCs in that country. In contrast, Los Angeles County, CA, with a much higher population and more diverse chemical manufacturing environment has only a single LEPC. This will make ISCD’s outreach effort simpler, but it makes me wonder how effective that LEPC can be.

ISCD Publishes Propane Fact Sheet

Today the DHS Infrastructure Security Compliance Division (ISCD) published a fact sheet about how propane is treated under the Chemical Facility Anti-Terrorism Standards (CFATS) program. It would appear that this fact sheet is yet another effort in the CFATS outreach program.

This is a one-page fact sheet (as opposed to the two-page sheets that address industry groups) so the amount of information that is provided is somewhat limited. Fortunately for DHS, the internet provides a way to pack a great deal of information into that one page via links to various information sources.

Propane Concentration

There is one link to an often over looked piece of information related to propane, the Federal Register notice outlining the special status of propane when looking at the mixture rule. Appendix A clearly states that the ‘Minimum Concentration’ for propane is 1%, the same as all other flammable release DHS chemical of interest (COI). But, the Federal Register Notice from March 21, 2008 clearly states that:

“Since DHS intends the COI propane to refer to products containing at least 87.5 percent of propane, as well as other release-flammable COI, it follows that the release-flammable mixtures rule does not apply to such products. In fact, it would not make sense to apply the release-flammable mixtures rule to the combination of chemicals that constitute the COI propane because that would largely negate the intended effect of the 60,000 pound STQ and the special STQ counting rule for the COI propane.[6] By contrast, the release- flammable mixtures rule does apply to products that are a combination of less than 87.5 percent propane and other release-flammable COI, since such mixtures are not themselves the COI propane.”

This oddity means that if you have 60,000 lbs of a commercial product that is only 87.4% propane and 13.6% butane, then the standard 1% mixture rule would be in effect and both propane and butane would have to be reported on a Top Screen at 60,000 lbs. If the product were stored at less than 60,000 lbs but more than 10,000 lbs (the STQ for butane), then only butane would have to be reported on the Top Screen as the total amount stored. But, again with ‘standard commercial propane’, only the propane has to be reported on the Top Screen.

Another Propane Oddity

There is one odd piece of information that is not directly referenced in the fact sheet, the odd way that propane STQ is calculated. For any other flammable release DHS chemical of interest, the STQ is calculated by adding up the total amount of the COI that is stored on the facility or used in processes at the facility. For propane, in another move to appease the agricultural community, only propane that is stored in tanks containing more than 10,000-lbs needs to be counted towards the 60,000-lb STQ.

CFATS Outreach

One thing that is not clear from the publication of these outreach fact sheets on the CFATS Knowledge Center is how ISCD expects these fact sheets to get to the facilities that are not presently covered under the CFATS program but probably would be if they submitted a Top Screen. This is, after all, the whole purpose of the outreach program; get the word out to facilities that are required to submit a Top Screen.

For the industry fact sheets, I would suspect that ISCD is counting on (and has almost certainly asked) the various professional organizations that support the covered industries to forward the fact sheet to their members. While the same technique may be used here I would guess that ISCD is going to request that covered CFATS facilities that ship propane forward this fact sheet to their customers that hold inventories over 60,000-lbs in 10,000-lb or greater tanks.

There is an easier way to conduct this outreach effort, ISCD could always require facilities that ship COI in greater than STQ quantities to provide ISCD with a list of those customers. Then ISCD could directly contact the facilities that have not yet submitted Top Screens and require them to do so under 6 CFR 27.200(b). The authority to request a list of customers is already provided in 27.200(a):

“… the Secretary may, at any time, request information from chemical facilities that may reflect potential consequences of or vulnerabilities to a terrorist attack or incident, including questions specifically related to the nature of the business and activities conducted at the facility; information concerning the names, nature, conditions of storage, quantities, volumes, properties, customers, major uses, and other pertinent information about specific chemicals or chemicals meeting a specific criterion….” [emphasis added]

The fact that ISCD has, as of yet, not decided to take this rather drastic step is probably a matter of consideration of the business needs of the current CFATS facilities. It is, however, just a matter of time if we continue to see chemical release incidents at facilities that were, in retrospect, obviously required to submit Top Screens. Congress can politically withstand only so many West Fertilizer type incidents with ISCD saying; “Nope, never heard of them.”