Attorneys at Coleman & Horowitt recently
assisted a client in discussions with the Department of Homeland Security (DHS)
regarding compliance with the Chemical
Facility Anti-Terrorism Standards (CFATS) program. Specifically, they
assisted the client in explaining how certain chemicals, including chemicals of
interest (COI), were being used to grow crops and therefore subject to the extension
from CFATS for agricultural activities (Ag Extension). The practical aspect of
this outcome is that the client will not be subject to potentially cost
prohibitive security measures for fertilizers used in crop production. Please
continue reading for a brief discussion of CFATS and the Ag Extension. If you
have received correspondence from an analyst or investigator with DHS regarding
CFATS, Lee N. Smith and Craig A. Tristao of our office are experienced in
discussions and can help you navigate compliance.
The
CFATS Program.
To protect the
nation from the exploitation of hazardous chemicals, Congress authorized the
Department of Homeland Security (DHS) to create the Chemical Facility
Anti-Terrorism Standards (CFATS) program (6 CFR Part 27) in order to identify
and regulate high-risk chemical facilities to ensure they have security
measures in place to reduce the risk of a terrorist attack associated with
certain chemicals of interest (COI) that can be used to create explosive
devices or otherwise cause us harm.
The CFATS
regulation lists more than 300 COIs, which if held in specified quantities or
concentrations known as standard threshold quantities (STQ), trigger reporting
requirements to DHS via an online questionnaire called a Top-Screen. Facilities
are required to report their chemical holdings within 60 days of coming into
possession of a COI. However, DHS has given certain agricultural facilities a
time extension for that reporting requirement.
The Ag Extension.
In January 2008,
the Department published in the Federal Register a December 2007 letter
granting a time extension for certain farmers and other agricultural users who
are otherwise required to report their COI holdings and submit a Top-Screen
survey under CFATS (see 73 Fed. Reg. 1640 January 9, 2008).
The Ag Extension
provides in pertinent part:
(1) Until further notice, or
unless otherwise specifically notified in writing by DHS, the Top-Screens will
not be required for any facility that is required to submit a Top- Screen
solely because it possesses any Chemical of Interest, at or above the
applicable screening threshold quantity, for use—
(a) in preparation for the treatment of crops, feed, land, livestock
(including poultry) or other areas of an agricultural production facility; or
(b) during application to or treatment of crops, feed, land, livestock
(including poultry) or other areas of an agricultural production facility; This
extension applies to 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.
(2) This extension does not
apply to chemical distribution facilities, or commercial chemical application
services.
(3) This extension does not
apply to chemical distribution facilities, or commercial chemical application
services.
DHS
Fact Sheet on the Ag Extension that Potentially Misinterprets the Extension.
Although the Ag
Extension appears straightforward, agricultural businesses that utilize COIs may
receive inquiries about how the COI’s are being utilized. This is because of a
lack of understanding by DHS staff as to how COI’s are used in agricultural
operations, and a DHS Fact Sheet which purports to exclude storage from the
extension.
In November 2017,
DHS issued a “Fact Sheet” on the Ag Extension. The Fact Sheet purports to
identify situations when the Ag Extension does not apply. It provides:
“When the Extension Does Not Apply.
The extension does not apply to agricultural production facilities
that use a COI at or above the
applicable STQ for purposes other than those listed above. For example…●
If an
agricultural facility stores and/or distributes a COI…...
These facilities must submit a Top-Screen within 60 days of coming into possession of a COI.”
The intention of DHS is logical, they want to
know what security measures are in place at an agricultural facility that
possesses a COI. However, you maybe contacted because DHS’ Fact Sheet is
overbroad with regard to storage of chemicals, and in addition it may not be
obvious that the chemicals at issue are being used to grow crops, as staff are
likely not be as familiar with agricultural operations as they are with
industrial operations.
Notwithstanding
the language in the Fact Sheet, the Ag Extension, by its terms, applies to
“farms…; ranches…” Moreover, it appears
the intent of the letter was only to exclude “chemical distribution facilities,
or commercial chemical application services” from the Ag Extension and to not exclude
the Ag Extension to locations used by farming operations as part of their crop
production activities – see the Ag Extensions reference in (1)(a) “in
preparation for the treatment of crops…”.
Further,
although the language “store” is not used in the Ag Extension, the word
“possess” is used frequently (see, i.e., section (1)”…will not be required for
any facility that is required to submit a Top- Screen solely because it possesses
any Chemical of Interest...”) and certainly implies that “storage” at least for
an interim basis, is included.
Additionally,
in reviewing whether storage or possession is actually allowed under the Ag
Extension letter, it is useful to compare the Ag Extension letter, which
identifies operations subject to the letter as CFAT facilities, to the actual
CFATs regulations. The definition of a
facility under the regulations also contains the language “possess.”
Chemical Facility or facility shall mean any
establishment that possesses or plans to possess, at any relevant point in
time, a quantity of a chemical substance determined by the Secretary to be
potentially dangerous or that meets other risk-related criteria identified by
the Department. As used herein, the term chemical facility or facility shall
also refer to the owner or operator of the chemical facility. Where multiple
owners and/or operators function within a common infrastructure or within a
single fenced area, the Assistant Secretary may determine that such owners
and/or operators constitute a single chemical facility or multiple chemical
facilities depending on the circumstances.
6 CFR Chapter I, Part 27.
As such, the Fact Sheets’ use of “store” is
overbroad if it is applied to facilities that hold a COI as part of crop
production activities– the exception would swallow the exemption, and your farm
should not be required to provide a “Top-Screen” for the COI.
What to do When You Receive
an Inquiry?
If you receive an inquiry from DHS, you
should contact counsel to discuss how to best respond. Counsel can assist you
in communications with the agency, analyze whether any extensions apply to your
use of a COI, and help you comply with the CFATS program if necessary.
