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Department of Homeland Security Stays Implementation of New Rule for Certain Agricultural Operations  

On October 4, 2006, President Bush signed into law the Department of Homeland Security Appropriations Act of 2007 (Act). Pub. L. 109-295, section 550. This law provides the Department of Homeland Security (DHS) with the authority to regulate the security of high-risk chemical facilities, including certain agricultural operations.

On April 7, 2007, DHS issued an interim final rule, as required by section 550 of the Act, which established the Chemical Facility Anti-Terrorism Standards (CFATS) at 6 CFR 27. The CFATS became effective on June 8, 2007, with the exception of a tentative list of Chemicals of Interest (COIs) found within Appendix A. After receiving comments on the tentative list of COIs, DHS issued a final rule on November 20, 2007, revising the list of COIs within Appendix A.

In short, the CFATS require certain chemical facilities, including agricultural operations, to determine whether they possess one or more COIs in an amount that is equal to or greater than its respective Screening Threshold Quantity (STQ) for one or more applicable security issues (e.g., release, theft, or sabotage). If this is the case, then the chemical facility is required to perform and submit to DHS a Top-Screen Analysis.

Due to concerns over the applicability of the Top-Screen Analysis to agricultural operations, DHS issued a letter on December 21, 2007, published in the January 9, 2008, Federal Register (73 FR 1640), extending (indefinitely) the deadline for agricultural operations to submit Top-Screen Analyses to DHS.

It should be noted that DHS is not extending this notice to agricultural operations that are required to submit a Top-Screen Analysis to DHS because such operations possess a COI (e.g., propane) at or above the applicable STQ for use as a fuel (e.g., for heating) at such locations.

The pertinent part of the DHS letter is as follows:

"This letter grants a time extension, as specified, to farmers and other agricultural users of COI for submitting Top-Screens to DHS."

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"... given the nature of these agricultural operations and the circumstances described above, [DHS is] exercising [its] authority under 6 CFR 27.210(c) to extend the deadline for submitting Top-Screens under the following conditions:

(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 -

• in preparation for the treatment of crops, feed, land, livestock (including poultry) or other areas of an agricultural production facility; or
• 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."

For more information about the new DHS rule and this particular time extension for agricultural operations, please contact Matthew T. Klein at mklein@boselaw.com or (317) 684-5475.