Monday, September 17, 2012

2012 CSSS Presentations – CFATS Personnel Surety Program

This is the another in a series of blog posts about presentations made at the recent 2012 Chemical Sector Security Summit. The first in the series dealt with the problems associated with the presentations in general. The subsequent posts will deal with the information provided in the slide presentations. The published presentations only provide the outline, I’ll try to fill in what information that I can from other sources or my best guesses.

Today I will address the presentation made by Matthew Bettridge of DHS ISCD on the CFATS Personnel Surety Program. The PSP is supposed to address the requirement of §27.230(a)(12)(iv) that requires high-risk chemical facilities to include in their personnel surety programs “measures designed to identify people with terrorist ties”. Currently the only federally acceptable way to identify such people is to compare a person’s identity against the Terrorist Screening Database (TSDB) administered by the Transportation Security Administration.

DHS Does Not Grant/Deny CFATS Access

As currently set forth in RBPS #12 and the CFATS regulations, ISCD does not intend to administer a program like the TSA TWIC or HME. There is no regulatory standard for access to CFATS facilities similar to the ones found in those programs. CFATS facility management will be the one to decide what standards must be met in the general background checks to be conducted by the facility. The only regulatory requirement is that the facility must submit information (what information has yet to be established) to ISCD to allow TSA to conduct a check against the TSDB. There is not even a prohibition against a person who is listed on the TSDB as a suspected terrorist being given unaccompanied access to critical areas of a high-risk chemical facility.

Previous Attempt at PSP

The presentation takes two slides to try to clarify the proposed requirements of the PSP that was recently withdrawn from consideration by the Office of Management and Budget (OMB). The OMB must sign-off on the program because it collects and processes information supplied by the public and the OMB is tasked to ensure that such information collection requests are lawful, necessary, and minimally invasive. How much of that previously proposed PSP will be contained in the new program that has yet to be developed remains to be seen.

The New Proposal

Under Secretary Beers recently told a Congressional Sub-committee that the Department will publish the new proposal within 30 days. Given that short time frame (and reasonably that means that the final draft has to be circulating for review within NPPD), it is kind of surprising that there was so little information in this presentation about what ISCD intended to include in their new proposal.

Actually, there was only one new item floated in this presentation (unless Bettridge talked about others that were not in the slide). That was to allow the use of TWIC readers in lieu of submitting personally identifiable information to ISCD/TSA. If this does come about, ISCD will have a TWIC reader ‘rule’ in place before the Coast Guard (I know TSA and CG have already done the hard work, but it will be ironic in any case).

Use of the TWIC

If this clearly authorized use of the TWIC reader is included in the final CFATS PSP it is going to have its upsides and downsides. Truck drivers with either a TWIC or HME (I think that TWIC readers should recognize HME’s but I’m not positive; anyone want to chime in here?) will have a delivery edge at CFATS facilities, but it will also increase the number of truck drivers that are going to have to try to get a TWIC (and many won’t be able to because of criminal records) as CFATS security managers begin to require drivers to have TWICs to enter their facility. This is going to put driver’s at places away from TWIC Enrollment Centers at even more of a disadvantage.

Facilities wishing to go to the TWIC for their PSP are going to have problems with the same criminal conviction problem that is going to be facing truck drivers. Many owners have been willing to overlook some criminal convictions that TSA will not let slide because they know the worker involved or are willing to take the risk for a variety of reasons. Sliding the whole PSP responsibility to TSA will force a number of people out of the chemical workplace.

Finally, if there is a large-scale move to using TWIC Readers for PSP purposes at CFATS facilities the need for processing a large number of new applications is going to coincide with a large number of renewals of current TWIC users. This could create the same kind of back log in the system that we saw in the early days of the initial issuance of the TWIC.

PSP Approval

Unless ISCD requests emergency approval of their new PSP information collection request (ICR) it is going to take at least six months for the approval process to move forward. Here is what I see as an absolute ‘best case’ approval

• October 11, 2012 – Publish 60-day ICR notice in the Federal Register.

• December 11, 2012 – Close public comment period on 60-day notice .

• January 11, 2013 – Publish 30-day ICR  notice in the Federal Register

• February 11, 2013 – Close public comment period on 30-day notice and submit ICR to OMB

• March 11, 2013 – OMB gives approval of ICR

Actually I think that the ‘best case’ is, as is usual, unobtainable. Unless there is a very dramatic change in the PSP proposal, there will be extensive public comments on both ICR notices and responding to those will delay any subsequent work on the ICR. If Romney wins in November, the change in management at DHS will also slow the approval process. Finally, the screwed up budget process will also weigh down all processes in the Executive Branch.
I will be happily surprised if we have an operational PSP in place by this time next year.

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