Monday, March 25, 2013

CFATS PSP – Who Gets Screened

This is the second in a series of blog posts about the CFATS Personnel Surety Program that was described in a 60-day information collection request (ICR) notice in Friday’s Federal Register. This post will look at who ISCD expects facilities to screen via the PSP and who is not required to be vetted. The earlier post in the series is listed below.

Regulation Requires Screening

The notice explains that there are two broad groups of individuals that are covered by the Personnel Surety Program vetting requirements:

• Facility personnel who have access, either unescorted or otherwise, to restricted areas or critical assets, and
• Unescorted visitors who have access to restricted areas or critical assets.

In the earlier release of the PSP ICR there were numerous industry objections to the requirement that facility personnel who only have escorted access should be vetted through the PSP. The ISCD response then was that this definition comes straight out of the CFATS regulations {6 CFR 27.230(a)(12)} so the Department’s hands are tied; changing the requirement would entail a rule change which is outside the scope of an ICR.

Contractors and Vendors

The question also came up concerning how facilities should deal with contractors and vendors; are they ‘facility personnel’ or are they visitors?

The ISCD response to the earlier ICR submission was:

“Individual high-risk facilities may classify particular contractors or vendors, or categories of contractors or vendors, either as “facility personnel” or as “visitors.” This determination should be a facility-specific determination, and should be based on facility security, operational requirements, and business practices.”

How facilities deal with contractors and vendors will have to be addressed in the facility site security plan. The more complex the rules set up in the SSP for dealing with this issue the harder it is going to be to justify to ISCD during the SSP authorization and approval process.

Screening Not Required

During the previous ICR review process ISCD had to answer questions about how emergency response personnel and government inspectors would have to be dealt with in the PSP. Instead of waiting for the inevitable questions to arise, this ICR notice specifically addresses the situation. It broadly defines three classes of personnel that the facility will not need to vet through the PSP:

• Federal officials that gain unescorted access to restricted areas or critical assets as part of their official duties;
• State and local law enforcement officials that gain unescorted access to restricted areas or critical assets as part of their official duties; and
• Emergency responders at the state or local level that gain unescorted access to restricted areas or critical assets during emergency situations.

There is a major difference in the way that federal officials and State and local officials are treated in this rule. The wording for federal officials is not limited to law enforcement as are the State and local officials. Thus federal regulatory personnel could be allowed unescorted access while State and local regulatory officials would have to be escorted.

The notice acknowledges that there might be emergency or exigent circumstances that require allowing other classes of people unescorted access to the to secure areas or critical areas of the facility without being able to go through the PSP vetting process. The Department notes that these situations should be addressed in the facility site security plan:

“If high-risk chemical facilities anticipate that any individuals will require access to restricted areas or critical assets without visitor escorts or without the background checks listed in RBPS 12 under exceptional circumstances, facilities may describe such situations and the types of individuals who might require access in those situations in their SSPs or ASPs. The Department will assess the appropriateness of such situations, and any security measures to mitigate the inherent vulnerability in such situations, on a case-by-case basis as it reviews each high-risk chemical facility's SSP or ASP.”

This could be used if there are State or local requirements for unannounced inspections of facilities by regulatory agencies or other State or local government regulations that require inspectors be allowed unaccompanied access to the facilities. Including these requirements in the facility SSP would allow ISCD the opportunity to make the decision as to whether or not their vetting rules pre-empted the State or local laws or regulations.

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