Review – ChemLock and Tiering

This is part of a series of blog posts looking at the potential for the authorization of CISA’s existing ChemLock program and using it as a voluntary replacement for the now defunct Chemical Facility Anti-Terrorism Standards (CFATS) program. Other posts in this series include:

• CFATS is Dead,

• Making ChemLock Safety Act Compliant – ChemLock Program Background

NOTE: Previous articles in this series have been removed from the CFSN Detailed Analysis paywall.

Risk Assessment

One of the things that made the CFATS program so successful over the years was the realization that there were different levels of risk associated with different chemical facilities and that meant that different levels of security were needed to mitigate that threat. DHS developed, and CISA upgraded, a sophisticated tool to complete the risk assessment process that was based upon data provided by each chemical facility called the Top Screen tool. Facility security managers completed a secure, online questionnaire about their facility and CISA used that information to determine if facilities were at a high enough risk to be covered under the CFATS program and if they were to assign the facility to one of four Tiers. That Tier level served as the basis for the much of what the facility was subsequently required to do under the program.

A similar risk assessment process will be required for the ChemLock program if it is going to be used as a basis for providing facilities with Safety Act (6 USC 441 et seq) protections as an incentive to actively participate in the ChemLock program. Obviously, some changes need to be made, but the existing (and currently mothballed) Top Screen process would serve as an excellent basis for such assessments.

Moving Forward

Congress would not need to directly address changes to the Top Screen process nor the Chemicals of Interest list in their rulemaking authorizing the ChemLock process and tying it into the Safety Act process. It could simply authorize CISA to update the existing Top Screen process and adapt it to a voluntary ChemLock reporting process. It would, however, need to require CISA to adopt a screening process that would allow for the establishment of risk-based security measures needed to qualify facilities for Safety Act protections.

 

For a more detailed discussion about revisions to the Top Screen process and COI list, see my article at CFSN Detailed Analysis - https://patrickcoyle.substack.com/p/chemlock-and-tiering - subscription required.

ISCD Updates 2 FAQ Responses – 9-9-20

Today 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. Most of the changes are non-substantive editorial changes, but there is a new link to a relatively new CSAT web page.

Updated FAQ

The following FAQ responses were revised today:

FAQ # 387 What if my facility will be adding a chemical of interest (COI) in the future?

FAQ #1143 What is required of co-located facilities regarding the Chemical Facility Anti-Terrorism Standards (CFATS)? Do both companies need to submit a Top-Screen and Security Vulnerability Assessment (SVA)/Site Security Plan (SSP)? Is it possible for the embedded facility to share the Top-Screen and SVA/SSP with the host company? If this is possible, what would be required by both companies to accomplish this and be compliant under 6 CFR Part 27?

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 FAQs:

#387 Adds link to new CSAT Top Screen Submissions Tips page,

#1143 Changed URLS to document links

Top Screen Submission Tips Page

According to the date on the web page it was originally published this last May, but this is the first time I have seen the page. The CFATS web site is huge and ISCD does not do a good job of communicating changes to the site.

This page begins with a brief overview of the purpose of the Top Screen. It then goes on to look at five major topics:

• Resubmissions for material modifications,

• Business operations: predictive top-screen filing,

• Business planning: hypothetical top-screen filing,

• Regular resubmissions, and

• Facility closures

I followed all of the links on the page and found that the following two pages had been updated since this new page was published:

Chemical Security Assessment Tool (CSAT) Top-Screen,

CFATS Covered Facilities and Inspections

I do not see any major changes to those pages.

LNG and CFATS

According to Google, I have been getting a number of hits on this blog from people looking for information on liquified natural gas (LNG) and the Chemical Facility Anti-Terrorism Standards (CFATS) program. The question seems to be: are LNG facilities covered under the CFATS program? As with all things CFATS, the answer is a complicated ‘yes, but…’.

LNG and Appendix A

Liquified Natural Gas is listed as a DHS chemical of interest (COI) in Appendix A to 6 CFR 27 as ‘methane’. It has a release flammables security risk; a screening threshold quantity of 10,000-lbs; and a minimum concentration of 1%. There is no specific listing for the cryogenic form, but Appendix A does not distinguish between the physical states of the listed chemicals.

The term ‘LNG’ is found in the preamble to the final rule for Appendix A in two places. First in the list of abbreviations used in the publication. The more definitive use is found in the discussion of ‘peak shaving facilities. The preamble makes it clear that those facilities are covered under the CFATS program.

Clearly, facilities that have an on-site inventory of 10,000-lbs of LNG have a responsibility to complete a Top Screen report to DHS. Except, here is where it gets complicated, for facilities that are covered under the Maritime Transportation Security Act (MTSA) program. Facilities that are covered under that program are exempted from coverage under the CFATS program. Historically, most large LNG liquefaction facilities have been associated with shipping LNG overseas and have been located at dedicated port facilities. The security at those facilities is regulated by the Coast Guard under the MTSA program.

LNG and Top Screens

It used to be that LNG facilities submitting a Top Screen had to complete a number of Top Screen questions that dealt with topics peculiar to LNG facilities; topics like ‘thermal radiation zones’ and ‘exclusion zones’. With the advent of CSAT 2.0 those questions have disappeared. This was part of change in the way that the CFATS program dealt with risk assessment. Instead of having individual facilities do many of the calculations that went into the risk assessment process, ISCD now internalizes those calculations.

This change in the Top Screen was reflected in the removal of six frequently asked questions (FAQs) related to LNG topics on the CFATS Knowledge Center. The following FAQs were removed before the CSAT 2.0 Top Screen went live in 2016:

• FAQ 184 August 23, 2007; UPDATED November 18, 2013 Question: What is a thermal radiation zone?

• FAQ 340 August 23, 2007; UPDATED January 13, 2014 Question: Where can I find guidance for LNG storage facility questions?

• FAQ 1331 January 8, 2008; UPDATED January 13, 2014 Question: How do I enter the LNG Storage Capacity?

• FAQ 1337 January 8, 2008; UPDATED January 13, 2014 Question: How do I enter the LNG Exclusion Details?

• FAQ 1444 June 11, 2010 Question: What information do I have to fill out?

• FAQ 1571 July 1, 2009 Question: What is an Exclusion Zone?

There is no mention of the term ‘LNG’ in any of the current FAQs.

Associated Chemicals

Liquefaction facilities may also have other chemicals on site that they would be required to report under the CFATS program if the facility is not covered under the MTSA program. If the facility treats ‘sour gas’ (natural gas containing H₂S), the amines used in the separation process may be COI listed in Appendix A and H₂S is certainly a listed COI. Some of the ‘heavy hydrocarbons’ removed from the natural gas stream (and stored on site) may also be listed. As long as the inventory of these COI is above the screening threshold amount for that chemical listed in Appendix A, those chemicals will also be required to be reported on the facility Top Screen.

Conclusion

Facilities that are not covered by the MTSA program that store 10,000 or more pounds of LNG on site are required to complete a Top Screen submission to DHS reporting that inventory amount and the amount of any other DHS COI stored on site above the screening threshold quantity. The DHS Infrastructure Security Compliance Division will then conduct a risk assessment of the facility and determine whether or not the facility will be listed as a high-risk facility covered under the CFATS program. Covered facilities will be required to complete a security vulnerability assessment and submit a site security plan to ISCD for approval.

ISCD Publishes New FAQ and Updates a FAQ Response

Today the folks at the DHS Infrastructure Security Compliance Division (ISCD) updated a response to a frequently asked question (FAQ) and published a new FAQ on their Chemical Facility Anti-Terrorism Standards (CFATS) Knowledge Center. Both FAQ’s deal with the submission of Top Screen reports.

Actually, what ISCD did was to separate the response to the original FAQ #641 into two cases. The first case deals with initial Top Screen submissions; that remained in #641. The requirements for facilities already in the CFATS program to resubmit a Top Screen were put into the new FAQ #1793.

Interestingly, there is one Top Screen submission situation that has not been addressed in any of the FAQ’s to date. If a facility submits a Top Screen and is notified by DHS that it is not a covered facility, does the facility have to submit another Top Screen when it acquires a new DHS chemical of interest (COI) in quantities above the Screening Threshold Quantity, or the originally reported COI at a higher inventory level?

ISCD Publishes New Anhydrous Ammonia FAQ

On Friday the DHS Infrastructure Security Compliance Division (ISCD) published a new frequently asked question (FAQ) on the Chemical Facility Anti-Terrorism Standards (CFATS) Knowledge Center. The question, FAQ# 1786, addresses the effect of change of state in anhydrous ammonia in a refrigeration system on the reporting requirements for the CFATS Top Screen.

The response to the question reads:

“The total mass quantity within the system and the physical state, temperature, and pressure of the ammonia as it exists in the vessel(s) downstream of the condenser(s) should be reported.”

The ‘mass quantity’ portion of that response refers to the information that would need to be provided to question ‘Q1.70.010 Total Onsite Quantity’ on the Top Screen. The remainder of the response addresses the requirements to answer ‘Q1.70.030 Circle 1 Details’ for the largest quantity location for anhydrous ammonia.

Top Screen 2.0 – What’s Missing

This is the second in a series of blog posts about the new Top Screen manual recently published by the DHS Infrastructure Security Compliance Division (ISCD). This manual supports changes being made to the Chemical Security Assessment Tool (CSAT). These revisions are being called CSAT 2.0 by ISCD. Earlier blog posts in the series include:

ISCD Publishes New Top Screen Instructions

Missing Items

While there are any number of changes being made in the new Top Screen manual one of the most obvious set of changes from the previous Top Screen Questions manual (besides the type set and organization) are the elements that are missing from the new manual. They include:

• CVI Authorizing Statements;

• Paperwork Burden Notice;

• Submission Statement;

• EPA RMP Facility Identifier;

• All refinery specific questions;

• All liquefied natural gas questions;

• All gasoline storage questions;

• All mission critical chemical questions; and

• All economically critical chemical questions.

The first three items are administrative in nature and the first and last of these may actually still be on the screen in the on-line Top Screen tool; they did not really need to be mentioned in this manual. The missing Chemical-terrorism Vulnerability Information (CVI) Authorizing Statement will be discussed more completely below.

The removal of the RMP question is interesting in light of recent concerns about the lack of information sharing between DHS, EPA and OSHA on issues of chemical safety and security (see EO 13650). This question never did seem to be of much use in assessing the terrorism risk level of a facility, but its inclusion could have been useful in setting up a formal information sharing process with the EPA.

The refinery questions in the original Top Screen were related to economic considerations (capacity, market share, end-users, etc). These were included as DHS intended to include economic risk considerations in their risk analysis. They never actually got around to doing this (due to the complexity of that analysis) and it would seem that they now have little intention of doing so. This would also explain the removal of the mission critical and economically critical chemical questions which were originally intended to be used for the same purpose.

The missing liquefied natural gas and gasoline storage questions are related to more complex issues that will be dealt with in a later posting in this series. While the gasoline storage questions from the earlier version of the Top Screen were removed, ISCD did include a few new question that will be dealt with in a later discussion of Release-Flammable COI section of the Top Screen.

CVI Issues

The CVI program is a part of the CFAT program that limits the release of sensitive but unclassified information about the security of facilities covered in the CFATS program. To access CVI information individuals have to complete a CVI training program and have a legitimate need to know, or access to, the information.

Since the individual bits of information that the facility uses to complete the Top Screen are not covered under the CVI program DHS has not required individuals filling out, reviewing, or submitting the Top Screen to have completed CVI training. It is only the completed Top Screen submission or the letter from DHS subsequent to the submission of the Top Screen that is considered to be CVI protected information.

The original intent of the CVI Authorizing Statement on the Top Screen was to serve as a non-disclosure agreement between the submitting facility and ISCD. It also provided information about how to get the required CVI training to be able to access CVI protected information in the future.

Either the DHS lawyers determined that this was not an effective non-disclosure agreement, or that one was not needed. It is also possible that this CVI information is being moved to the new CSAT registration tool manual that we are expecting to see in the next couple of weeks. We will just have to wait and see.

ISCD Publishes New Top Screen Instructions

Today the DHS Infrastructure Security Compliance Division (ISCD) updated the Top Screen web page for the Chemical Facility Anti-Terrorism (CFATS) program. That new web page includes a link to the new Top Screen Instruction Manual.

The old web site contained links to two different Top Screen manuals; a Questions Guide and a User Guide. A brief look at the new manual published today makes it look like ISCD has combined the two manuals. Links to the old manuals have been removed from the CFATS Knowledge Center documentation list and the link to the new manual has been added. Links to the old Top Screen Question and Top Screen User Guide are still working as of 9:00 pm EDT, 9-1-16.

COI Calculations

The new manual has been completely reformatted and is much easier to read and follow. In addition to a brief description of how to answer each of the questions that could appear on the Top Screen, the new manual includes three appendices that are supposed to provide information on how to calculate:

• The amounts of each chemical of interest (COI) that should be excluded from screening threshold quantity (STQ) calculations;

• The amounts of each COI that should be included in STQ calculations; and

• The minimum concentrations to be included in STQ calculations.

Those instructions are actually quotes from the CFATS regulations describing those calculations. No additional explanations or clarifications have been provided.

Moving Forward

The web site changes today do not include any indications that the new Top Screen tool is live. The new Top Screen page still includes the note that the Top Screen submission requirements have been suspended. I expect that we will see a formal, Federal Register notice when the Top Screen requirement is re-instated. It is possible, however, that individual facilities may receive direct notification from DHS that they need to submit a new Top Screen before the notice is published in the Federal Register.

There will be additional blog posts concerning specific questions and required responses that are included in the new Top Screen.

DHS Publishes CSAT 2.0 Notice

Today the DHS Infrastructure Security Compliance Division (ISCD) published a notice in the Federal Register (81 FR 47001-47004) outlining the plan for the implementation of their new risk assessment protocol and the revisions to the Chemical Security Assessment Tool that are being called CSAT 2.0. This includes the temporary suspension of requirements to submit Top Screens (TS) and Security Vulnerability Assessments (SVA) effective today.

Three-Step Process

Today’s notice outlines a three-step process that ISCD will be undertaking to implement the new risk assessment protocol and CSAT 2.0. Those steps are:

Temporarily suspend, effective July 20, 2016, the requirement for CFATS chemical facilities of interest to submit a Top-Screen and SVA;

Replace the current CSAT Top-Screen, SVA, and SSP applications with CSAT 2.0 (i.e., the revised CSAT Top-Screen, SVA, and SSP applications) in September 2016; and

Reinstate the Top-Screen and SVA submission requirements in 6 CFR 27.210(a) on October 1, 2016.

The Top Screen and SVA submission suspension affects all chemical facilities that may be required to submit either initial or resubmission Top Screens and SVAs.

Presumably the implementation of CSAT 2.0 will include the publication of new CSAT manuals during the month of September.

Facilities Not Affected

The notice makes clear that four specific classes of facilities will not be affected by the changes included in the implementation of CSAT 2.0. They include:

• Agricultural production facilities and miscellaneous extensions;

• Chemical facilities of interest with reportable COI that are only present in a gasoline mixture;

• Statutorily excluded facilities; and

• Untiered facilities that previously notified the department they had no reportable COI.

TS Submission Notifications

Once CSAT 2.0 is up and running ISCD will begin notifying ‘chemical facilities of interest’ of their need to submit a Top Screen. The notice makes it clear that the term ‘chemical facilities of interest’ was used deliberately instead of ‘covered facilities’ because it includes facilities that may have already submitted a Top Screen that indicated that they possessed DHS chemicals of interest (COI) inventories at or above the Screening Threshold Quantity (STQ).

The notification letters will be sent out in a phased manner over a number of months, presumably in a manner reflecting ISCD’s potential risk assessment of the previous information provided. There is no specific language in the notice that would indicate that all facilities that have provided Top Screens to ISCD will be notified to re-submit Top Screens at this time.

Facilities that do not have current COI inventories at or above the STQ will not be required to submit Top Screens to ISCD, even if they are notified by letter to submit a Top Screen. Those facilities may either submit a zero COI Top Screen or otherwise notify ISCD that they have no COI at or above the STQ and will not be submitting a Top Screen.

The notice does state that currently covered facilities that believe that the new risk assessment methodology will result in a lower tiering may submit a Top Screen before being notified by ISCD to do so. This certainly implies that ISCD will be sharing more information about the new risk assessment methodology and that tracks with what I have heard from ISCD privately. I do not expect that they will be sharing their actual model publicly, but they will be sharing more information about how the risk assessment methodology works.

Existing SVAs and SSPs

The notices makes it clear that only completed and submitted SVAs and Site Security Plans (SSPs) will be retained in CSAT 2.0. Partially completed SVAs and SSPs will be lost when CSAT 2.0 is implemented. This is of particular importance to remember this because ISCD will continue to accept new or revised SSP/ASP up until the date of the CSAT 2.0 switch over.

New SVA/SSP Timetable

For the most part, since ISCD expects to make a tiering decision based upon the new Top Screen, there will be no need to delay the SSP submission until after the receipt of the SVA. This notice, therefore, the new SVA and SSP tools in CSAT 2.0 have been designed to have facilities submit both documents concurrently. While more details are expected when the new manuals are published in September, it would seem that there will be more direct sharing of information between the two tools that should make the submission of both documents easier.

This means that ISCD is changing the submission deadline for the SVA from the current 90 days in §27.210(a)(2) to 120 days. It is interesting to note that the current regulation specifically allows ISCD to change that deadline with a Federal Register notice rather than requiring a rulemaking. The notice also makes it clear that the same notification of high-risk and tiering that now initiates the SVA submission requirement also is being used to initiate the SSP requirement. That certainly means that ISCD will be modifying the current notification letters.

Since the SVA and SSP tools will be so closely linked, facilities that revise their SSP will now also be required to revise their SVA at the same time.

Regular Top Screen Submissions

The notice indicates that regular Top Screen submissions for facilities reporting new inventories of COI at or above the STQ will resume on October 1^st, 2016. Facilities that acquire such inventories between now and then will have 60-days from October 1^st to submit their Top Screen.

CSSS Update

I am sure that there will be more information available at today’s session at the Chemical Sector Security Summit presentation on “Infrastructure Security Compliance Division (ISCD) Regulatory Update”. That session will be web cast at 10:00 am EDT.

Top Screen Freeze

I have been receiving questions from folks in the field about the ‘Top Screen Freeze’ that is in effect at the DHS Infrastructure Security Compliance Division (ISCD). While I have written about the new Top Screen rollout, the recent questions have been about Top Screens being submitted now.

ISCD ‘Freeze’ Guidance

I have gone back to my contacts at ISCD and obtained a copy of the memorandum that DHS sent to CFATS facilities back on June 21^st, 2016. There is nothing in that memorandum that contradicts what I said in my last post on this topic. It does, however, provide some additional information:

“In anticipation of publication of the Federal Register notice [see more below], and to minimize duplication for facilities, DHS is planning to slow down and in some cases suspend the review of some Top-Screens and SVAs [Security Vulnerability Assessments]. DHS will automatically extend due dates for facilities that have Top-Screens and SVAs due in the coming weeks. These extensions will release facilities from the requirement to submit a Top-Screen or SVA until the Federal Register notice is published announcing the formal suspension [emphasis added]. Facilities should contact their Chemical Security Inspector [CSI] or Compliance Case Manager [CCM] with any questions or for clarifications on next steps.”

This certainly makes sense, both for ISCD and covered facilities. No one is well served by duplicative work. Facility specific questions should be addressed to the facility CSI or CCM. Facilities without contact information for these individuals should contact the CFATS Help Desk {(866) 323-2957}.

Federal Register Notice

Before ISCD can proceed with the changes to the CSAT tool (now being referred to as CSAT 2.0) it must wait on the OMB’s Office of Information and Regulatory Affairs’ (OIRA) approval of the CSAT information collection request (ICR) revision that I talked about in the Top Screen Rollout blog post. There is no telling when that ICR approval will be given; the personnel surety program ICR took more than a year to get approved. The CSAT 2.0 ICR is certainly less controversial and everyone at ISCD expects the approval process to be much quicker.

Once OIRA approves the ICR revision ISCD will be publishing a notice in the Federal Register outlining the details of how CSAT 2.0 will be rolled out. As mentioned above, part of that notice will be an official suspension of the Top Screen and SVA submission requirements pending the actual start dates of the new CSAT tools. It is possible that ISCD will publish their Federal Register notice before the OIRA CSAT 2.0 ICR approval, but there are potential problems with such a move if OIRA drags out the ICR approval process.

2016 CSSS

This is a topic that will certainly be discussed at the upcoming 2016 Chemical Sector Security Summit CSSS. The Agenda shows that there will be two workshops on July 19^th demonstrating the CSAT tools; presumably these will be the CSAT 2.0 tools. Unfortunately, none of the workshops are currently planned to be web cast. I certainly hope that ISCD reconsiders this, especially given the number of questions from the field about these new tools.

On the 20^th there will be a session on “Infrastructure Security Compliance Division Regulatory Update”. I expect that Director Wulf will be discussing the CSAT 2.0 implementation in some detail during this hour long presentation. This will be web cast.

If you have not yet registered to attend the CSSS in person or via the web cast there is still time to register.

Top Screen Roll Out Information

I have been hearing comments from a couple of readers about the new Top Screen being developed by the DHS Infrastructure Security Compliance Division (ISCD). There appears to be some confusion about the roll out of the new Top Screen. I have not seen any official documents from ISCD about the roll out timing, but some recent submissions (April) to the OMB’s Office of Information and Regulatory Affairs (OIRA), plus some private conversations that I have had may help clarify some of the issues being discussed.

The New Top Screen

Back in February ISCD announced that they would be changing the Top Screen and Security Vulnerability Assessment (SVA) tools in the on-line Chemical Security Assessment Tool (CSAT). DHS subsequently made it known that the changes in the two tools were being done to reflect the new risk analysis and tiering methodology that ISCD has been working on for a couple of years now. ISCD intends to implement the new risk analysis methodology sometime this fall and that implementation will include the new Top Screen and SVA.

I reported on the webinar where ISCD demonstrated the new Top Screen. The version that was demonstrated was more streamlined and it did include some questions that are currently in the SVA tool. The earlier presentation of these questions is necessitated by the new risk analysis model.

I understand that ISCD plans to demonstrate both the new Top Screen and SVA tools at the Chemical Sector Security Summit next month. I am hoping that they will be included in the presentations that will be web cast. We should be seeing a final listing of the web cast presentations in the next couple of weeks. DHS will be sending that out to people who have registered for the web cast.

Rulemaking

DHS does have a rulemaking in progress for changes in the Chemical Facility Anti-Terrorism Standards (CFATS) program and according to the latest Unified Agenda a notice of proposed rulemaking (NPRM) is scheduled to be published in September. The change in risk analysis protocol and subsequent changes in the Top Screen and SVA tools will not require rulemaking to effect since there will be no changes to the regulations required.

Because the Top Screen and SVA are information collections, ISCD is required to update their information collection request (ICR) with the OMB’s Office of Information and Regulatory Affairs (OIRA). A revised ICR for the Chemical Security Assessment Tool (CSAT) was submitted to OIRA on April 29^th, 2016. OIRA’s published acceptance of the ICR will be required before ISCD can implement the changes to the Top Screen or SVA. There is no way to know when OIRA will approve the ICR.

Implementation

Based upon past actions by the ISCD, once OIRA publishes their approval of the changes to the ICR we can expect to see a notice published in the Federal Register outlining how DHS will implement the new Top Screen and SVA. This notice will not require any formal OMB approval since they will have already approved that implementation plan as part of the ICR.

There is a rumor going around that DSH is going to require all currently regulated facilities to submit a new Top Screen. Additionally, the rumor goes, all facilities that have (or have had in the last 60 days) an inventory of any of the 300+ DHS chemicals of interest (COI) at or above the screening threshold quantity (STQ) for the COI, regardless of whether or not they have already been notified by ISCD that they are not considered to be a high risk facility.

Section 27.200(a) of 6 CFR provides the DHS Secretary the authority to, “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”. Thus, the authority does exist for the wholesale ‘re-do’ of the Top Screen as outlined in the rumors that I have been hearing.

On the other hand, on page 15 of the ICR support document [.DOC download] submitted to OIRA, DHS is expecting only 1,000 facilities to submit Top Screens each year and on average half of those facilities will submit 2 Top Screens in a year, reflecting changes in their COI inventory. This hardly sounds like a wholesale requirement to re-do Top Screens.

I would expect ICSD to have a pretty good idea as to whether the changes in the risk tiering methodology will result in any changes in the Tiering level of existing facilities. I would not be surprised if ISCD were to notify such facilities to submit a new Top Screen. The notification of facilities that had previously been notified that they were not at high-risk of terrorist attack would be more problematic because of the numbers involved (about 45,000 facilities), but it would be possible on a case-by-case basis.

It must be remembered that existing CFATS facilities are already on a regulatory schedule {§27.210(b)} to re-submit Top Screens (in addition to the requirement to submit a new Top Screen when there is a material change in COI or processes involving those COI). So all CFATS facilities will have to submit the new Top Screen at some point in their future.

In Short

In short, ISCD is planning on rolling out their Congressionally mandated, revised and vetted risk assessment methodology later this year, probably in the Fall. This methodology will be used to determine which facilities are at high-risk of terrorist attack and thus covered by the CFATS program. It is also used to establish the Tier level (relative degree of high risk) that determines the relative level of coverage of the security measures included in the Site Security Plan based upon the Risk Based Performance Standards guidance.

The revised methodology can be expected to require changes in the information submitted in Top Screen and Security Vulnerability Assessment tools in the CSAT process. The new information could result in changes in the CFATS status of a chemical facility or the Tier rankings of covered facilities. All CFATS facilities will eventually have to submit data about their facility under the new Top Screen. All chemical facilities that have new COI added to their chemical inventories at or above the SQT or have an increase in inventories already reported to ISCD will also have to complete the new Top Screen.

More information is expected to be released at the Chemical Sector Security Summit next month.

Crude Oil and CFATS Top Screen

A little over a week ago I wrote a post about the webinar that the folks at DHS Infrastructure Security Compliance Division (ISCD) held about the new Top Screen tool that they plan on rolling out this fall. One of the questions that came up in that webinar was about reporting crude oil storage on the Top Screen when that crude oil contained more than one percent of any of the 300+ chemicals currently listed on the DHS chemicals of interest (COI) list. Many of the webinar participants (myself included) came away from the response thinking that such reporting was/will be required. It seems we were mistaken.

I received an email today from Josiah J. Hortega, the main ISCD presenter at that webinar. He clarified that:

“Lastly, during the webinar crude oil was discussion and I was not able to speak to that fully at the time.  I know you have posted some blogs on that discussion and wanted to share with you that Chemicals of Interest in crude oil is not covered by CFATS see 27.203 (a)(8).”

He is, of course referring to the Chemical Facility Anti-Terrorism Standards (CFATS) regulations at 6 CFR Part 27. Paragraph 27.203(a) provides a listing of items that a facility need not include in the Top Screen if they contain, among other things, “in naturally occurring hydrocarbon mixtures prior to entry of the mixture into a natural gas processing plant or a petroleum refining process unit. Naturally occurring hydrocarbon mixtures include condensate, crude oil, field gas, and produced water as defined in 40 CFR 68.3 [link added]” {§27.203(a)(8)}.

I would assume that crude oil that has undergone a degassing procedure, as is frequently done in the Bakken fields to reduce the flammability of the crude) remains within the DHS definition of crude oil, since it is less hazardous than before the degassing operation. Having said that, the §63.3 for crude oil is “any naturally occurring, unrefined petroleum liquid”. Lawyers could argue whether or not that degassing is a refining process, but I don’t think that ISCD has any dog in that hunt.

The gasses that have been removed from that high-volatility crude may be another story completely. The gas removed from the crude oil is essentially natural gas, or more appropriately field gas under §63.3; “gas extracted from a production well before the gas enters a natural gas processing plant”. Again a good lawyer could argue either side of the argument about if this gas was ‘extracted from a production well’.

Since these gas extraction units are typically in isolated areas of the country, I don’t think that ISCD would classify these operations as chemical facilities at high-risk of terrorist attack. Given that, I doubt that ISCD would want to get involved in a technical legal argument about these facilities being covered under {§27.203(a)(8)}. As always, that situation would almost certainly change if there were a high-profile terrorist attack on one of these facilities.

ISCD Top Screen Webinar

Yesterday the DHS Infrastructure Security Compliance Division (ISCD) held a meeting and webinar to preview their new Top Screen tool that will be coming out later this year. The new Top Screen tool is part of the ISCD effort to upgrade the tools used by facilities under the Chemical Facility Anti-Terrorism Standards (CFATS) program.

Top Screen Demonstration

The webinar included a very detailed review of how the revised tool will work. Attendees were taken step-by-step through the Top Screen preparation process with a variety of chemicals of interest to allow us to see how it will be used in actual practice. It would be very helpful if ISCD included links to a demonstration like this on their Top Screen web-page when the new version of the Top Screen goes live.

The new version streamlines the data entry by ensuring that the questions that the submitter sees are the ones most likely to require responses for that facility. This is tied directly to the list of DHS chemicals of interest (COI) that form the core of the Top Screen submission requirement. When a COI is selected the tool populates a navigation menu on the left side of the screen with that COI and the security issues (release, theft diversion, sabotage, economic) of concern for that particular COI.

Clicking on a security issue for a particular COI will take you directly to the basic questions that would have to be answered for that issue and COI. Additional questions may be added to the list depending on the answers provided to the basic questions. When all of the questions for a COI/security issue are answered that will be reflected in the navigation menu.

The new tool makes use of a visual rendering of the facility based on satellite photography keyed to the latitude and longitude provided during facility registration. This is used to provide ISCD with the location of the areas of the facility with the largest concentrations of each of the listed COI. The tool allows the placement of the 170-ft circle described in the current version of the Top Screen so that it encompasses the storage locations.

RMP*Comp

I noted in an earlier post that recent changes to the EPA’s RMP*Comp tool may have been part of the reason for the development of the new Top Screen tool. That does not seem to be a major driving force, but the folks at ISCD did address the issue of past and future changes in the RMP*Comp tool by removing the requirement for facilities to use the tool to calculate the distance of concern for release toxic COI. The Top Screen tool will collect all of the information needed to make the calculation and ISCD will calculate that distance internally.

This change should directly address the concerns noted in last year’s GAO report on the discrepancies noted in the distance of concern information submitted by some facilities.

New Risk Assessment Model

As I noted in last Sunday’s post about this webinar, ISCD has completed work on the congressionally mandated updating of its risk analysis process. The new Top Screen tool reflects those changes, even if DHS is not yet ready to talk publicly about the details of the new model. They did move some questions from the Security Vulnerability Assessment forward to the Top Screen to make it easier to determine if a facility is to be considered at high-risk of terrorist attack and thus be covered under the CFATS program.

Gasoline Coverage in Top Screen

Last Sunday I also noted that the International Liquid Terminal Association (ITLA) had petitioned for gasoline storage facilities to be specifically exempted from the Top Screen submission requirement. This has not been done, but there have been some changes to the Top Screen questions related to flammable release COI that might alleviate some of the concerns expressed in that petition.

There seems to be more emphasis on the NFPA flammability rating of blends containing flammable release COI. Gasoline was never specifically listed as a COI, but many of the components of gasoline (Butane, pentane, etc) are listed and are found in concentrations above the 1% minimum. We won’t be able to tell for sure if the new Top Screen adequately (from the ITLA perspective) deals with the issue until Top Screens are submitted by fuel storage facilities and the results of the ISCD’s resulting risk determination are forwarded to these facilities.

Agriculture Exemption

The other Top Screen related issue that I mentioned on Sunday was the current exemption from Top Screen filing provided to agricultural production facilities. That does not appear to have been addressed in the revised Top Screen tool previewed yesterday.

Crude Oil Coverage

An interesting question was raised during the public question phase of the webinar yesterday. It came after a couple of questions about the mixture rule as it pertained to fuels. Someone (I did not catch the name) mentioned that the same things that make gasoline fall under the Top Screen (butane and pentane were specifically mentioned) could also apply to crude oil. And this is absolutely true.

It raises an interesting question about whether or not crude oil storage facilities have been completing Top Screens for their inventories of flammable gasses contained in the crude oil mixture. Now most crude oil would have a lower NFPA fire rating so that the blends would not typically be considered high risk under most risk analysis procedures. The large rail shipping facilities in the Bakken fields are typically isolated enough from surrounding communities that they would not likely be considered high-risk of terrorist attack by ISCD.

Having said that, the high gas content of some of the Bakken crudes that makes them more hazardous in shipment could also likely raise the NFPA rating of the mixture to an extent that would make them higher risk. That combined with the location of these large rail shipping yards next to main intercontinental rail lines may raise their risk of being a terrorist target to a high enough level that ISCD would cover them under the CFATS program.

Another crude oil related area of potential concern is the increasing number of facilities that separate out the flammable gasses from crude oil as a precursor to their shipment by rail. The storage of these flammable gasses as part of their separation process should result in a significant number of facilities have to have submitted Top Screens. It would be interesting to see how many of them have.

It is unlikely that most of these storage facilities have submitted Top Screens. This is just one more area that ISCD should look to reaching out to so that at the very least the appropriate data could be collected in order to make a real risk determination. Because of the impending changes in the risk determination model, ISCD may want to hold off until the new Top Screen tool is in place before requiring these facilities to complete Top Screens.

New CFATS Top Screen Coming

Late Friday afternoon I received notification from DHS Infrastructure Security Compliance Division (ISCD) that they were holding a meeting on Tuesday, February 9^th, 2016, at 1:00 pm EST. The meeting is entitled: “Chemical Security Assessment Tool (CSAT) Top-Screen Industry Demonstration”. It is too late to register for physically attending the meeting but it will be web cast on HSIN.

HSIN Registration

The registration for the web cast is done here. Now HSIN has a number of different levels of access. Fully public webinars usually allow signing in as ‘Guest’; that is not the case here. You have to have (or register for) an HSIN log on. I have one from a number of years ago and I can’t remember if it required DHS sponsorship (approval) or not.

Now I am pretty sure that registered CSAT users have received the same notification that I did; certainly facility security officers and submitters were notified.

Why Top Screen

There is nothing in the notification that I received that provides any specific information about what changes have been made or why. I do know that ISCD, at congressional behest, has been working on updating their risk assessment process by which they determine which facilities that submit a Top Screen are to be covered by the CFATS program. I would expect that changes to the Top Screen would be necessary to support that new risk analysis process.

There are a couple of other possible program changes that might be in the works that could also result in changes in the Top Screen. I don’t know if any of these are actually going to be put into place and certainly don’t know if they are included in this upgrade. These are just things that have been under discussion.

First, from an industry perspective, is the petition from the International Liquid Terminal Association (ITLA) that was filed back in 2009 (and re-submitted with the Appendix A RFI). The ITLA wanted above ground gasoline storage tanks exempted from Top Screen submissions. They have repeatedly made the point that the risk of off-site consequences from a fuel tank fire is too low to make them a real terrorist target. I have seen nothing that indicates that ISCD has changed their stance on this topic, but it is possible.

Another possibility is that ISCD could, in some way, incorporate the temporary agriculture exemption to Top Screen submission that was published in December 2007. Since agricultural producers are typically in relatively isolated locations, off-site consequences of releases of agricultural chemicals on the DHS chemicals of interest (COI) list are going to be relatively low. Theft-Diversion chemicals are not typically stored for any length of time on these facilities so their risk would also be relatively low. Again, there has been no specific indication that this change would be made, but it could be possible.

Recently there were changes in the EPA’s RMP*Comp program that were apparently driven (at least in part) by changes in chlorine gas dispersion modeling. I am not sure if these require any changes to the CFATS Top Screen, but there is a possibility.

Moving Forward

I am trying to find out more information about the Top Screen changes that may be included, but I’m pretty sure that I won’t be told (or maybe be allowed to share) any information until the webinar. I will probably try to TWEET® comments about the webinar (using #TopScreen hashtag). I certainly expect to have at least one tweet about the meeting and probably more on the Top Screen change details in subsequent posts (depending on the complexity of the change).

If anyone has additional information that they can share feel free to post as a comment to this post or contact me directly.

New GAO Report on CFATS Program

Last Friday the Government Accountability Office (GAO) published their latest report on the Chemical Facility Anti-Terrorism Standards (CFATS) program. While the report did identify some areas where the DHS Infrastructure Security Compliance Division (ISCD) needed to improve the CFATS program it generally noted that significant improvements had been made and previously identified problems had generally been corrected.

The GAO Report identifies four areas of concern:

∙ DHS has not taken steps to mitigate errors in some facility-reported data;

∙ DHS does not have reasonable assurance that it has identified all of the nation’s highest-risk chemical facilities;

∙ DHS cannot ensure consistency in how it addresses noncompliance in the CFATS program because it does not have documented processes and procedures; and

∙ DHS’s CFATS performance measure does not reflect security measures that facilities have implemented and that ISCD has verified.

Top Screen Data Reporting

The GAO identifies a problem with the reporting of Distance of Concern DOC for the release of toxic chemicals in the Top Screen. The CFATS Top Screen requires the facility to calculate the down wind distance that a worse case discharge of a toxic release chemical of interest (COI) will cause a significant problem. The tool that facilities are required to use is the EPA’s RMP*Comp.

The user inputs the maximum amount of a Toxic COI that they have on site, enters some other basic information (see pages 42 and 43 of the Top Screen User’s Manual) and the tool calculates DOC which is then reported in the Top Screen. DHS then uses this information as part of its determination of whether or not a facility may be covered under the CFATS program as a facility at high-risk of terrorist attack.

The GAO used available Top Screen data to verify the DOC reported for a ‘a generalizable sample of facilities’. Using that data the GAO report indicates that 44% of the facilities (2,700 facilities) had errors in the reported DOC and about 43% under-reported the DOC. It goes on to note that a common potential reason for the under-reporting may be due to one difference in the way the tool is used to calculate EPA and CFATS DOC information, the CFATS program does not allow facilities to take credit for passive mitigation measures such as dikes around tank farms.

The Report provides an example of a facility with more than 200,000 lbs of anhydrous ammonia  (AA) reported in its Top Screen that reported a DOC of 0.9 miles and GAO found a minimum possible distance of 2.4 miles when they calculated the DOC using R*Comp. I have replicated that work and found that there was no way to come up with a DOC of 0.9 miles regardless of whether or not mitigation measures were used. I suspect that the facility used their largest storage tank data (as they would for EPA reporting) instead of the total amount of AA on site as required by DHS. It is remotely possible that GAO’s figure of 0.9 miles came from the DOC value reported for the Area of Highest Quantity (AHQ) instead of the total COI.

The GAO report notes that ISCD has all of the information in its Top Screen Database necessary to verify the DOC data, but does not choose to do so. The first part is not necessarily true. The RMP*Comp tool, when calculating the DOC for materials that are gasses at 25°C, asks if the material is liquefied, and if liquefied whether it is liquefied by refrigeration or by pressure. That information is not included in the Top Screen and makes a big difference in the DOC. This is not important for most toxic release COI, but it is for AA. Using the Report’s example with AA you could get DOC’s of 2.4 miles (unliquified) 6.5 miles (liquefied under refrigeration) vs 8.0 miles for liquefied by pressure (all in an urban setting).

The thing that the GAO failed to take into account in pointing out this deficiency is that ISCD does not verify any of the information provided in the Top Screen. It is true that they could generally check the DOC value (using the ‘unliquified’ data from RMP*Comp), but that might not give a true picture for all COI. But given the fact that ISCD is accepting all other reported information, it would be unusual for them to pick out this one item that could be partially verified in a portion of the instances where it is reported.

Given the fact that the Report notes that only 43% of the discrepancies that it noted were under-reports, it seems to me that their data would tend to indicate that there were systemic problems with the use of the RMP*Comp tool. As ISCD moves forward with implementing the results of the outside evaluation of their risk ranking methodology, they should consider taking this calculation out of the hands of the facility and do the calculations in-house.

The GAO has two recommendations for this area:

∙ Provide milestone dates and a timeline for implementation of the new Top-Screen and ensure that changes to this Top-Screen mitigate errors in the Distance of Concern submitted by facilities, and

∙ In the interim, identify potentially miscategorized facilities with the potential to cause the greatest harm and verify the Distance of Concern these facilities report is accurate.

Facility Identification

The report outlines the measures that DHS has taken to identify facilities that have not submitted Top Screens, but should have done so. While they had conducted earlier out-reach activities, the effort was expanded after the West Fertilizer incident and the issuance of the President’s Executive Order on Increasing Chemical Facility Safety and Security. As a result of these latest efforts just over 3,000 potentially non-compliant facilities were identified and contacted by DHS.

More than 1500 had already submitted Top Screens; the ‘new’ identification was apparently based on differing naming or location information. Over three hundred were exempted from CFATS regulations. Of the remaining just over 1,000 have now submitted Top Screens and just 24 of those have been designated as high-risk facilities covered under the CFATS program with 44 still pending. ISCD is continuing to investigate other means of identifying potentially non-compliant facilities.

The report indicates an interesting problem. ISCD has asked States for information on the chemical facilities that they regulate as part of this program. California recently complied, identifying over 46,000 facilities (ISCD has only processed 50,000 Top Screens since the program started) which ISCD is now going through. Only 13 other States have supplied similar lists.

The GPO did not provide any recommendations for DHS on this issue.

Compliance Inspection Issues

The Report starts of the discussion of this issue with a review of actions that ISCD has taken to increase their rate of site security plan approvals and notes that ISCD has made substantial improvements in that approval rate. Interestingly, even though the GAO calculated that ISCD would have the approval backlog eliminated next year, they did not mention that the EAP process will almost certainly further accelerate the SSP approval process.

The Report then notes that ISCD has completed 83 compliance inspections of facilities with approved site security plans. There is no discussion of how well that reflects the requirement for ISCD to inspect facilities within one year of their site security plan being approved. The number seems low, but it will almost certainly increase as ISCD has fewer authorization inspections to complete.

The GAO reports that nearly half of the facilities inspected have not completely implemented all of the security measures outlined in their site security plans, which of course means that the facilities are out of compliance. The Report notes that ISCD is working with the facilities to get them into compliance.

The GAO notes that none of the non-compliance sanctions available to the Department (including Compliance Orders, Civil fines and even Cease Operations Orders) have been used by the Department to-date. While ISCD is ‘working with’ the facilities, the GAO reports that they do not have any written processes or procedures in place to document the progress that is being made at those facilities. Nor, apparently, does ISCD have any written processes or procedures in place on how they determine whether or not a facility is in compliance.

The GAO had one recommendation for this area:

∙ Develop documented processes and procedures to track noncompliant facilities and ensure they implement planned measures as outlined in their approved site security plans.

CFATS Performance

The last area of concern identified in the Report concerns the program reporting done by ISCD to DHS. This annual reporting requirement is used by DHS and the GAO to assess program performance and efficacy. One of the pieces of information included in that report is the number of security measures implemented by facilities. The GAO notes that ISCD does not distinguish between those measures implemented before the facility site security plans were approved, which measures have been reported as planned, or which of the planned measures have been implemented. Thus, the GAO reports that the numbers do not reflect changes brought about by the CFATS program and ISCD actions in support of that program.

The GAO had one recommendation for this area:

∙ Improve the measurement and reporting of the CFATS program performance by developing a performance measure that includes only planned measures that have been implemented and verified.

Moving Forward

DHS has acknowledged the four recommendations in the GAO report and has reported their intended actions to be taken in response to those recommendations. GAO confirms that if those actions are taken as reported, the recommendations would be considered as completed.

ISCD Adds New FAQ to CFATS Knowledge Center

Today the DHS Infrastructure Security Compliance Division (ISCD) published a new Frequently Asked Question (FAQ) on the CFATS Knowledge Center. The question addresses the need to submit a Top Screen for a temporary holding of a DHS chemical of interest (COI). FAQ # 1754 asks:

Does a facility have to report temporary holdings of Chemicals of Interest (COI) at or above the Screening Threshold Quantity (STQ)?

The short answer, is yes 6 CFR 27.210(a)(1)(i) requires that a Top Screen be submitted “within 60 calendar days for facilities that come into possession of any of the chemicals listed in appendix A at or above the STQ for any applicable Security Issue”. The response goes on to note that ISCD will work with facilities if they have “if the facility has fluctuating COI or has known future COI holdings”.

The response probably should have included a comment about contacting the CFATS Help Desk {(866) 323-2957} for details on how let ISCD know about the temporary nature of their COI holdings.

What Constitutes “Possesses”?

I had an interesting theoretical CFATS question thrown at me this week by a reader, a question that for fairly obvious reasons was not going to be offered to the folks at the DHS Infrastructure Security Compliance Division (ISCD), the people who administer the CFATS program. As I have to periodically remind people, I am not a lawyer, so I cannot offer legal advice and I certainly don’t work for ISCD, so my regulatory advice is somewhat suspect. Having said that; I always like looking at odd things from different perspectives. So let’s look at this question.

The Situation

A facility routinely uses aqueous ammonia and receives the material in bulk in quantities in excess of 20,000 lbs. The concentration of the aqueous ammonia ordered and used in the facility is 19%. This puts the product outside of the description for ammonia found in Appendix A, 6 CFR Part 27 since that document describes the DHS Chemical of Interest as “Ammonia (conc. 20% or greater)”. So the facility has no responsibility for reporting their use of aqueous ammonia to ISCD even though the amount of the material on-hand routinely exceeds that screening threshold quantity (STQ) for the defined ammonia (20,000 lbs).

A mistake on the vendor’s part results in a load of 28.4% ammonia being sent to the facility to fulfill an order for 19% ammonia. The paperwork accompanying the shipment (including both the bill-of-lading and the certificate of analysis) indicates that the material received is 19% ammonia as requested, so it is accepted and unloaded by the facility. Subsequent use of the material indicates that it is more concentrated than it should be and subsequent on-site testing confirms that a mistake has been made.

The vendor acknowledges the mistake, apologizes vociferously, and expeditiously removes the unused portion of the material from the facility and makes a complete refund for the full amount delivered (including the portion consumed).

The question is, does the facility have to report the 40,000 lbs of 28.4% ammonia received to DHS ISCD on a Top Screen submission?

On the One Hand

The CFATS regulations clearly state {§27.200(b)(2)}:

“A facility must complete and submit a Top-Screen in accordance with the schedule provided in § 27.210, the calculation provisions in § 27.203, and the minimum concentration provisions in § 27.204 if it possesses [emphasis added] any of the chemicals listed in appendix A to this part at or above the STQ for any applicable Security Issue.”

The 40,000 lbs of 28.4% ammonia delivered to the facility is clearly a chemical listed in Appendix A above the STQ. This means that compliance with the CFATS regulations requires that the facility register with CFATS for the purpose of establishing a Chemical Security Assessment Tool (CSAT) account so that a Top Screen can be submitted within 60 days of the time that the 28.4% ammonia was delivered to the facility.

On the Other Hand

The offending ammonia was removed from the site before there would have even been a chance for DHS to provide log-in credentials for the facility personnel to begin to work on the Top Screen submission. The toxic gas release hazard was gone with the off-spec ammonia. There was no intent by the facility to purchase, obtain or use ammonia in any concentration higher than 19%.

While the Top Screen submission is relatively un-intrusive as chemical regulations go, it does take time and administrative efforts to complete the registration and Top Screen submission process. For a facility to have to make even those relatively minor efforts for a mistake made and corrected by someone else, does not seem to make a lot of sense.

The purpose of the CFATS regulations is to ensure that chemical facilities that make, store or use chemicals that could be used by terrorists in effecting a chemical attack, either by causing a hazardous release of toxic, flammable or toxic chemicals or by using stolen or diverted chemicals to make improvised chemical weapons or explosives that would be used in a subsequent attack. In this particular case, that purpose would not be served by requiring the facility to complete the registration/Top Screen processes for chemicals that are no longer and never again should be on hand at the facility.

Letter or Intent of the Rule

This comes down to the old dilemma, which is more important, the letter of the law or the intent of the law. I personally tend to come down on the side of the spirit of the law. While the law should be blind and impartial so that it treats everyone the same, it also must be practical. Blind adherence to the letter of the law is frequently discriminatory in application. A small company being required to meet the §27.200 requirements in this case would be more burdened by that requirement than a large company in the same situation.

Since the purpose of the regulation in this case would not be measurably served by a strict adherence to the letter of the law, the application of the burden would be discriminatory against the small company and (again in my opinion) should be avoided.

CFATS Knowledge Center Update 01-13-14

Yesterday the folks at DHS ISCD updated their CFATS Knowledge Center page by revising their responses to four of the frequently asked questions (FAQ) listed on that page. Three of the changes were noted in the note in the ‘Latest News’ section of the page the other was not.

Liquefied Natural Gas FAQ

The three questions referenced in the ‘Latest News’ blurb all dealt with FAQ concerning liquefied natural gas topics related to the Top Screen, Those questions were:

#340 - Where can I find information about how to answer liquefied natural gas (LNG) storage facility questions in the Top-Screen Survey?

#1331 - Where can I find information about how to enter liquefied natural gas (LNG) storage capacity in a Top-Screen Survey?

#1337 - Where can I find information about how to answer liquefied natural gas (LNG) storage facility questions in the Top-Screen Survey?

All of the changes were related to the way the response referred to locations within the CSAT Top-Screen Survey Application User Guide. The previous versions of these responses (dating from 2007 and 2008) referred to pages within an older version of the guide and were no longer correct. Yesterday’s version of the responses refer to section numbers within the Guide and, presumably, will be less likely to change when the Guide is updated in the future.

ISCD apparently only goes back and reviews these FAQ for inconsistencies when someone points out problems in the current responses. There are an awful lot of FAQ after all. In this case I went back and looked at some of the other FAQ responses around #1331 and found that the same sort of issues could be found in the responses to FAQ # 1314, 1318, 1319, 1323, and 1324. I stopped looking then.

Keeping this stuff up to date is a tedious job. Maybe ISCD can get a summer intern to do it.

Waste Water Treatment Facility FAQ

The FAQ response that was not listed in the ‘Latest News’ notice was the response to FAQ 1732:

#1732: How can I determine if my facility’s wastewater treatment operation meets the Chemical Facility Anti-Terrorism Standards (CFATS) exemption under 6 CFR 27.110(b) for the Federal Water Pollution Control Act?

The change to this response is even simpler. It corrects a simple typographic error changing “facilityÂs” to “facility’s”. This is even less of a substantive change than those noted above, which is the reason that ISCD did not report the change.

NOTE: Sorry about the lack of links to these FAQ's. The way the CFATS Knowledge Center is set up, there are no permanent links to any of the FAQ's; you have to use the search tools on the page to find them.

CFATS Fact Sheet Updates

While we are looking at the CFATS Knowledge Center, I would like to point out something that hasn’t changed, but probably should have. ISCD had been providing links on this page to each of the monthly versions of the CFATS Fact Sheet updates. Unfortunately, they stopped doing so; the latest version listed is the August 2013 version. It was handy to have the links to these historical documents.

For consistency’s sake, they should probably all be listed here, or none of them should. There is no requirement for ISCD to publicly maintain this historical record; they are almost certainly officially enshrined elsewhere.

CG Announces NMSAC Meeting – 9-24-25-13

The Coast Guard published a meeting notice in Monday’s Federal Register (78 FR 44089-55091; available on line today) for the next meeting of the National Maritime Security Advisory Committee in Washington, DC on September 24^th and 25^th, 2013.

Some of the agenda items for this meeting are a little out of the ordinary, but that probably makes them more important than normal. The agenda includes discussions about:

• Cybersecurity Executive Order (EO 13636);

• Presidential Policy Directive-21;

• Chemical Facility Safety and Security Executive Order;

• TWIC Reader Rule;

• Fall Regulatory Agenda;

• Boston Marathon lessons learned;

• Hurricane Sandy lessons learned;

• FSO training initiative; and

• Future security issues.

Actually the notice states that the first two items are continuations of discussions that were started at the April 2013 NMSAC Meeting. There is also a repeat of the comment from the April meeting notice that: “NMSAC will meet to review the Executive Order and begin initial work in developing a framework for the maritime community.” As I mentioned earlier the NIST Preliminary Cybersecurity Framework will apply to the maritime community as well as all other critical infrastructure communities. It will be interesting to see what comes of this NMSAC effort.

The Coast Guard has been working with the Infrastructure Security Compliance Division (ISCD) of NPPD to work out a memorandum of understanding about how the two organizations will coordinate their chemical facility security efforts in MTSA and non-MTSA facilities. Interestingly, I have heard that the Coast Guard is intending to scrap its proposal to implement a Top Screen reporting rule (1625-AB64) for MTSA covered facilities (which are exempt from CFATS coverage). This will probably be addressed in the discussion of the Fall Regulatory Agenda.

Consequences of CFATS Authorization Renewals

I had an interesting communication yesterday with a reader who has a personal connection to the CFATS program (and thus needs to remain anonymous). After reading my post about the draft DHS spending bill that was marked up yesterday this connected reader was struck by the program consequences of this annual (well, ‘randomly periodic’ might be better terminology than ‘annual’) reauthorization. This connected reader had a question and an observation that I think are worth sharing; first the observation and then the question.

Top Screen Submission Failures

Connected notes that “one reason there has been so many places reluctant to submit a top screen (sic) is due to this temporary authorization process through the history of the program”. I think that this may be a classic case of assuming facts not in evidence. We do have a recent history of a very public facility that had not filed a Top Screen, but I have not seen or heard any definitive statement as to why that Top Screen was not filed.

Having said that, I do think that it is safe to assume that there are a number of facilities that have not completed a required Top Screen submission. How many is anyone’s guess, but I would suspect that a realistic range would be somewhere between 1% and 10% of the facilities that are required to submit a Top Screen. I would be surprised (but not amazed) if it were over 10%. I would almost bet money that it was not less than 1%.

The reasons why such a large number of facilities (as many as 4,000 at the upper end) will be as varied as the types of facilities involved. I would bet, however, that the major categories of reasons would include (in no particular order):

• General mistrust of the Federal Government;

• Lack of knowledge of the CFATS program;

• Misunderstanding of the term chemical facility;

• Avoidance of the cost of compliance; and

• Fear of getting involved in a costly compliance regime that is doomed to be canceled.

While we don’t have any firm numbers for any of these categories, I think everyone can agree with Connected that at least some portion of non-compliant facilities wants to avoid getting caught-up in an expensive security program that will inevitably fail to be reauthorized in the not too distant future.

Why the Periodic Reauthorization

Connected asks an interesting question; have any of the other existing chemical safety/security programs “such as MSHA, OSHA, MTSA, or EPA had to endure a litany of successive temporary authorizations before getting their permanent authorizations”? The short answer is ‘No’, but that doesn’t provide any useful information unless we also examine the corollary question; why does CFATS have to undergo this periodic renewal? Again a short answer is ‘Politics; and it requires some explication.

There are two general strains of political thought in the United States that have been with us essentially since the beginning. The first is the belief that government is inherently coercive and thus something to be avoided assiduously. This inherently anarchic belief in the United States is moderated by a grudging admission that there are some things that only a government can do and a less than enthusiastic willingness to accept government regulations in those areas.

The other strain of political thought that has been prevalent throughout our history is based upon the belief that people want and need order imposed upon their lives. This leads to the inevitable conclusion that the government is the only organization that can fulfill that need.

What is probably unique about this country is that a large portion of the population is able to accept both of these concepts as controlling factors in different parts of their personal political lives. This helps to explain, for example, the social conservatives both decrying regulatory involvement in personal lives and the desire for strong laws prohibiting abortion.

This dichotomy is clearly evident in governmental relations with the chemical industry in general and chemical security regulations specifically. Neither side in this debate really believes that there is a terrorist threat against chemical facilities. One side, generally embodied by the Democrats, mistrusts the chemical industry because of a long history of mishandling hazardous chemicals and wants to regulate the industry at every turn. The other side, generally Republicans, believes that bureaucrats are intellectually incapable of understanding chemical processes and thus have no business being involved in the regulation of chemical facilities.

Thus neither side is really willing to listen to the political overtures of the other in this debate, particularly since neither side really believes in the terrorist threat. As long as neither side sees a realistic threat, they will not be able to come together to pass a ‘permanent’ chemical facility security bill; their mistrust of each other’s intentions will continue to prevent them from working together.

I’m afraid that the only thing that would allow the two sides to get together and work out a consensus set of chemical security regulations would be a successful terrorist attack on a chemical facility; and that is something no one wants to see happen.

So, it looks like for at least the near term, one-year reauthorizations in the DHS spending bill is what we have to look forward to.