Security Issues

It is highly recommended that agricultural aviation operators look at the Security Vulnerability Assessment tool developed by Asmark and the Agribusiness Security Working Group as a measure to help maintain one’s operation is secure found here. The 109th Congress passed the Homeland Security Act Appropriations legislation in 2006, which opened the doors for DHS to use statutory authority to regulate chemical facilities for security-related purposes. On April 7, 2007, DHS issued an interim final rule regarding these regulations, which was called “Chemical Facility Anti-Terrorism Standards” (CFATS). The CFATS went into effect in November of 2007.

Subsequent congressional reauthorizations continued many of the exemptions for ag chemicals (see below) and contained many provisions favorable to the agriculture and chemical industries such as avoiding a policy favoring inherently safer technologies that may have efficacy concerns, streamlining of site security plan approvals and truck driver ID methods, and providing industry the confidence afforded to a program with a long-term reauthorization.

If it is determined that a facility possesses or plans to possess any of the chemicals listed in Appendix A: DHS Chemicals of Interest (COI) list, at or above the screening threshold quantity (STQ), the facility must register with the DHS and conduct a “Top-Screen” analysis. More than 50,000 facilities have submitted a “Top-Screen” analysis to the DHS. Only “high risk” chemical facilities notified in writing by DHS are required to complete and submit the Chemical Security Assessment Tool’s (CSAT) Security Vulnerability Assessment (SVA) to the department. There are 3,100 of these high-risk facilities nationwide or which have either reduced their chemicals of interest or added security measures. The CFAT SVA instructions can be found here.

NAAA has received communications from members inquiring if a business in possession of a chemical from the COI list above the STQ for less than a day (for example, dropped off in a trailer in the morning above the threshold amount, but applied it in its entirety by the evening) triggers the requirement to complete the “Top-Screen?” NAAA received the following response from the DHS pertaining to this question:

If a facility possesses a chemical of interest in an amount that equals or exceeds a STQ ‘at any point in time,’ they will be required to register and submit a Top-Screen. The facility would count the chemical of interest stored in transportation containers “detached” from the motive power that delivered the container to the facility. The only possible exception is if a contractor brings the chemical on site and uses it ‘immediately.’ If a facility never has possession of the COI (e.g., if a contractor brings the COI onsite and uses it immediately), then the facility does not need to submit a Top-Screen. In any event, there is no “holding time” threshold for possession of a COI.

NAAA has also received inquiries from members pertaining to the different STQs for the same COI and which one should be counted when determining if completion of the Top Screen is required. In regard to this inquiry DHS has provided the following response:

In calculating chemical amounts, facilities should consider the chemicals in their possession within the framework for each of the three separate and distinct security issues categories (release, theft/diversion, and sabotage/contamination). A facility must count each chemical of interest in its possession, using the relevant calculation provisions for each of the categories, and if the facility possesses an amount that meets or exceeds the STQ for any one of the categories (i.e., security issues) the facility must complete and submit a Top-Screen.

Another question NAAA has received from members pertaining to the regulations is if a facility possesses a product that includes multiple ingredients and that product includes ingredients on the COI list, how should the facility determine the STQ of that larger product? NAAA received the following response from the DHS pertaining to this question:

A facility does not count chemicals of interest that are contained in an article. An article has end use functions dependent in whole or in part upon the shape or design during end use, and that it does not release or otherwise result in exposure to a regulated substance under normal conditions of processing and use. Toothpaste and paint may contain COI’s identified in Appendix A. However, once the chemical of interest is contained in an article, such as toothpaste or paint, the security risks associated with the release of that chemical typically are no longer present. The COI has taken a new shape of a gel, paste or dense liquid.

This response indicates that if a COI is an ingredient in a product, a facility is not required to count it in determining if it must complete the Top-Screen. A facility need only count a COI in its concentrated form, unless otherwise mentioned, when determining if it is required to complete the Top-Screen. For example, dimethylamine is listed as a COI. A facility would be required to perform a Top-Screen if it possessed 10,000 pounds of concentrated dimethylamine, but not if it possessed 10,000 pounds of the herbicide Banvel® of which 48.2 percent is dimethylamine, and 51.8 percent consists of “other ingredients.” Some chemicals on the COI list do trigger a facility to complete a Top-Screen when they are contained in an article with other mixtures. Ammonium nitrate is one such example on the COI. To view the final list of regulated chemicals at their threshold amounts go to DHS website. More information on completing a “Top-Screen” may be found here.

On January 26, 2016, the U.S. Chemical Safety and Hazard Investigation Board called on EPA, the Occupational Safety and Health Administration (OSHA), and the Federal Emergency Management Agency (FEMA) to change their emergency management and fertilizer storage rules after finding shortcomings in those policies that could have contributed to the 2013 explosion at the West Fertilizer Company in West, TX. The Board concluded after their three-year investigation that EPA needs to make clear that fertilizer storage facilities are not exempt under emergency management rules and strengthen regulations on fertilizer-grade ammonium nitrate. The Board also called on OSHA to subject ammonium nitrate to stricter storage requirements.

NAAA and a coalition of other ag organizations were successful in urging DHS to remove certain chemicals used in agriculture from the preliminary regulated chemical list and increase the threshold amounts of other chemicals on the list. For example, urea is off the final list, but was on the preliminary list. Propane remains on the list, but at a significantly higher screening threshold quantity. DHS has evaluated the way propane is used and adjusted the STQ to 60,000 lbs. from 7,500 lbs. Propane containers of 10,000 lbs. or less do not have to be counted. Other key products and threshold quantities on the final list include: ammonia (concentration 20 percent or greater) 20,000 lbs.; solid ammonium nitrate (nitrogen concentration of 23 percent or greater) 2,000 lbs.; dimethylamine herbicides (Banvel, Savage, 2,4-DB 200) 10,000 lbs.; isopropylamine herbicides (Stalker, Chopper, Hasten) 10,000 lbs. Chemical site security regulations were intended to apply to the larger chemical manufacturing sites so it is not expected that small sites that take possession of materials for brief periods of time in quantities just at or above the threshold amounts will have to do more than the Top-Screen analysis. Nevertheless, they must do the Top-Screen analysis, so they are following the letter of the law. The current CFATS congressional reauthorization expiration date is July 27, 2023.

The Cybersecurity and Infrastructure Security Agency (CISA) has launched a new voluntary chemical security initiative, ChemLock. ChemLock is a completely voluntary program that provides facilities that possess dangerous chemicals no-cost services and tools to help them better understand the risks they face and improve their chemical security posture in a way that works for their business model. To learn more, visit the ChemLock webpage.

Updated February 2023