RE: Comments on Department of Homeland Security's Chemical Facility Anti- Terrorism Standards; DHS

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1 October 17, 2014 U.S. Department of Homeland Security National Protection and Programs Directorate Office of Infrastructure Protection Infrastructure Compliance Division 245 Murray Lane, Mail Stop 0610 Arlington, VA RE: Comments on Department of Homeland Security's Chemical Facility Anti- Terrorism Standards; DHS To Whom It May Concern: The National Grain and Feed Association and North American Export Grain Association (NAEGA) are pleased to submit these comments on the U.S. Department of Homeland Security's (DHS) advanced notice of proposed rulemaking, published in the August 18, 2014 edition of the Federal Register, concerning its review of the Chemical Facility Anti-Terrorism Standards (CFATS). The NGFA, established in 1896, consists of more than 1,050 grain, feed, processing, exporting and other grain-related companies that operate more than 7,000 facilities and handle more than 70 percent of all U.S. grains and oilseeds. Its membership includes grain elevators; feed and feed ingredient manufacturers; biofuels companies; grain and oilseed processors and millers; exporters; livestock and poultry integrators; and associated firms that provide goods and services to the nation s grain, feed and processing industry. The NGFA also consists of 26 affiliated State and Regional Grain and Feed Associations. NAEGA, a not-for-profit trade association established in 1912, consists of private and publicly owned companies and farmer-owned cooperatives that are involved in and provide services to the bulk grain and oilseed exporting industry. NAEGA s membership largely is domiciled in both the United States and Canada. NAEGA s mission is to promote and sustain the development of commercial export of grain and oilseeds and their primary products. Through a reliance on member action and support, NAEGA acts to accomplish its mission from its office in Washington D.C., and in markets throughout the world.

2 2 The NGFA, NAEGA and their memberships take homeland security issues very seriously, and we have repeatedly demonstrated our high level of cooperation with the government in countless activities in the aftermath of the Sept. 11, 2001 tragedies. Specifically, the NGFA was among the first agricultural organizations to prepare and distribute generic industry guidance on facility security in the aftermath of 9/11. That guidance has been updated periodically including as recently as this fall based upon new information and findings. In addition, the NGFA and NAEGA participated actively in the Food and Drug Administration s (FDA) rulemakings under the Bioterrorism Act of 2002, and developed industry guidance and education programs for the facility registration, recordkeeping and prior notification provisions of those regulations. Shortly thereafter, NGFA and NAEGA formed a joint Agroterrorism and Facility Security Committee to bring together top security and food-defense experts from our respective industry memberships to collaborate on industry initiatives and interact with government on these important issues. One of those subsequent efforts involved NAEGA s collaboration with the U.S. Coast Guard to establish an Alternative Security Program for vessel and barge-loading facilities required to comply with the security requirements of federal maritime safety laws. All NAEGA and NGFA member companies are eligible to participate in the program. In addition, the NGFA has been an active participant in the Food and Agriculture Sector Coordinating Council, the presidentially sanctioned partnership consisting of federal, state, tribal, territorial and private sector organizations and entities that are focused on continually assessing and addressing risks of intentional adulteration of the food and feed supply. NGFA s president currently serves as the Sector Coordinating Council co-chair. Recently, the NGFA and NAEGA partnered with FDA to offer a Food Defense Awareness Workshop that was conducted on July 29, 2014 in Kansas City, MO. The fullday workshop provided members of the grain, grain and oilseed processing, feed manufacturing, flour milling, export and other industry sectors with information on food defense, the tools and resources available from FDA (i.e., FDA s Food Defense Plan Builder Tool and industry), and to walk participants through a series of exercises on how to create a food defense plan for their facilities. Significantly, the NGFA also worked previously with FDA to assess and identify mitigation strategies at grain handling facilities and animal feed mills through the Strategic Partnership Program Agroterrorism (SPPA) a public-private cooperative effort between the U.S. Department of Agriculture (USDA), the Federal Bureau of Investigation and Department of Homeland Security, in partnership with state and industry partners. The SPPA vulnerability assessments included: 1) tours of a country grain elevator, export grain elevator and an animal feed mill; 2) an analysis of the processes at typical facilities; and 3) identification of potential risks and risk-mitigation strategies. In short, the NGFA and NAEGA take the importance of agricultural facility security and food/feed defense very seriously, and have endeavored to cooperate with and assist the DHS in accomplishing its mission to protect the homeland.

3 3 Further, we appreciate the DHS accepting several major recommendations made in extensive comments on CFATS submitted jointly to the agency in April 2007 by the NGFA and Grain Elevator and Processing Society that reduced significantly the number of grain, feed and processing facilities potentially regulated under the chemical facility antiterrorism regulations. Time Extension for Certain Agricultural Facilities DHS was authorized by Congress to regulate chemical facilities that present high levels of security risk under the DHS Appropriations Act of Under this authority, DHS in April 2007 promulgated the CFATS regulation. Agricultural facilities that may be required to comply with at least some provisions of the CFATS regulation include grain elevators, feed mills, grain processors (including flour mills), farm supply retailers and other food, agricultural and chemical facilities. To determine if a facility is deemed high-risk and subject to the security provisions of regulation, DHS requires facilities to submit information through a web-based CSAT known as the Top Screen if they possess or plan to possess listed chemicals that meet or exceed specified minimum concentrations and at quantities that meet or exceed screening threshold quantity (STQ) levels. More than 300 such chemicals are defined by DHS as a chemical of interest (COI) and are listed within Appendix A of the regulation, which was issued on Nov. 20, Results of the Top Screen are evaluated by DHS to determine whether a facility is high-risk and required to conduct a security vulnerability assessment and implement additional performance-based security measures. In a subsequent development, DHS on Dec. 21, 2007 issued a letter granting an indefinite time extension (to be in place until further notice ) for certain agricultural facilities to register with the agency and submit information under CFATS. Specifically, DHS in the letter states: 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. 2. 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. 3. This extension does not apply to chemical distribution facilities, or commercial chemical application services.

4 4 In response to questions posed by the NGFA concerning the letter, DHS confirmed that: 1. Grain, feed, and processing facilities that possess a quantity of a COI that meets or exceeds its STQ solely for the purpose of fumigating grain, feed or food are covered under the extension. But facilities that sell fumigants are not covered by the extension. 2. Chemicals of interest that are fuels (such as propane) are not covered by the extension. Therefore, facilities that possess quantities of propane that meet or exceed the propane STQ (60,000 pounds (approximately 14,285 gallons); however facilities do not need to count propane stored in tanks containing less than 10,000 pounds (approximately 2,381 gallons) when determining their STQ level) need to complete and submit a Top Screen. 3. Agricultural retail facilities that sell COIs are not covered by the extension. For most grain, feed and processing facilities, the practical application of the DHS agricultural extension letter is that facilities possessing phosphine for use in fumigation at quantities at or exceeding the STQ for phosphine do not need to register with DHS or submit a Top Screen until the extension is lifted. DHS on May 14-15, 2008 conducted a meeting at Pennsylvania State University with select stakeholder groups from the agricultural community, including the NGFA, to identify distinct aspects and activities of the agricultural sector that should be considered as DHS moved forward in implementing the CFATS program. The primary purpose of the stakeholder meeting was to gather information about the agricultural sector so that the agency could make informed decisions on how to bring agricultural operations under the standards. During the session, DHS stated that it intended in the future to lift the extension and appropriately apply its regulations to agriculture facilities. As of this date, the agricultural extension remains in effect. While we fully support DHS s proactive efforts to protect the homeland, we also believe that the agency needs to take an approach that focuses on real, rather than perceived, risks. We believe that ensnaring tens of thousands of grain elevators, feed mills, grain processing plants, feed ingredient manufacturers, ethanol plants, farms and other agricultural and food facilities in the registration and Top-Screen process under its CFATS rule is neither justified based on risk nor is what Congress intended when adopting the Homeland Security Appropriations Act of 2007 directing DHS to focus its regulatory efforts on high-risk chemical facilities. For these reasons, we urge DHS to make permanent the current extension that precludes certain agricultural facilities from being required to register with the agency and submit information under CFATS.

5 5 Possible Addition of Chemicals to, and/or the Deletion or Modifications of Chemicals of Interest in Appendix A According to the DHS, Appendix A categorizes chemicals based upon three defined security-related criteria: Release: Whether the chemical presents a threat to human life or health, within or beyond the facility, if intentionally released or detonated. The release category has three distinct subcategories: 1) Release-Toxic: chemicals with the potential to create a toxic cloud; 2) Release-Flammables: chemicals with the potential to create a vapor cloud explosion; and 3) Release-Explosives: chemicals with the potential to be detonated. Theft: Whether the chemical presents a threat of being converted into a weapon if stolen or diverted. The theft category also has three subcategories: 1) Theft Chemical Weapons/Chemical Weapons Precursors: chemicals that could be stolen or diverted and used as or easily converted into a chemical weapon; 2) Theft - Weapons of Mass Effect: chemicals that could be stolen or diverted and used directly as such weapons; and 3) Theft - Explosives/Improvised Explosive Device Precursors: chemicals that could be stolen or diverted and used in explosives or improvised explosive devices. Sabotage/Contamination: Whether the chemical, if mixed with other readily available materials, has the potential to be used in sabotage or contamination incidents that pose a threat to human life or health. NGFA and NAEGA strongly urge the DHS to consider all these factors when determining whether to add or remove chemicals from Appendix A, and not base its decision on just a single particular category. As noted previously, grain, feed and processing facilities handle a wide variety of chemicals already covered by Appendix A. The inclusion of additional chemicals that do not meet the aforementioned criteria would impose an undue burden on the industry and undermine countless positive efforts implemented by our and other industry sectors, as well as, potentially undermine DHS s credibility. For these reasons, NGFA and NAEGA recommend that DHS consider other important factors, such as existing handling practices, accident history and potential risk to surrounding communities, when evaluating the addition or deletion of categories of chemicals from Appendix A. Finally, we believe DHS should recognize that since many grain, feed and processing facilities are located in more rural areas with lower populations, they inherently pose an overall lower security risk to all of the surrounding communities.

6 6 Appendix A Screening Threshold Quantity and Concentration and Mixtures NGFA puts its full support behind and incorporates by reference the Corn Refiners Association s extensive comments on the current ANPRM as to the following issues: (1) the Top-Screen submission deadline should be extended from 60 to 120 days so employers have a sufficient amount to conduct a full chemical inventory of potential COIs and complete the substantial and complicated Top-Screen questionnaire, (2) the minimum concentration for hydrogen peroxide (35%) should be increased to 52% to achieve inter-agency harmony with OSHA and EPA, eliminate employer confusion, and reduce an unnecessary burden to employers, and (3) DHS must re-evaluate and apply the CFATS mixture rule (6 C.F.R ) on a chemical-by-chemical basis that considers the unique potential hazards each chemical poses at lower concentrations. Conclusion In closing, the NGFA and NAEGA urge DHS to continue to minimize the number of non-high-risk facilities included in the rule s screening process. In particular, we support making permanent the indefinite exemption for agricultural facilities to register and submit to the CFATS process so that grain-handling, feed and processing facilities are not diverted from their focus on security considerations that represent a much higher priority than the comparatively small quantities of chemicals on-site used for pest management and quality assurance. Further, in evaluating the addition or deletion of a chemical from Appendix A, we encourage DHS to consider not only the release, theft and sabotage/contamination criteria as a whole, but also examine the impacts of existing handling practices, accident history and potential risk to surrounding communities. Thank you in advance for your consideration of our views on this extremely important matter. We would be pleased to respond to any questions you or your colleagues may have. Sincerely, Jess McCluer Director of Safety and Regulatory Affairs National Grain and Feed Association