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 over broad 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.
Craig A. Tristao is a Partner in the litigation and transactions departments of the firm’s Fresno office. He provides representation to clients in litigation matters involving agricultural law, environmental law, construction law, land use and natural resource law, water law, probate and estates, and eminent domain matters that involve the California High Speed Rail Authority. Craig also assists clients with regulatory compliance issues concerning the Clean Water Act (CWA), the Porter-Cologne Act, and the Clean Air Act (CAA). In addition to litigation, Craig also represents clients before the Regional Water Quality Control Boards and the State Water Resources Control Board, air districts, and the Contractors State License Board (CSLB). He has also been named a Super Lawyers “Rising Star” for 2015-2018 (2.5% of lawyers practicing under 10 years). You can contact Craig at (559) 248-4820 or firstname.lastname@example.org.