Monday, June 16, 2008

Vulnerability Assessments are Underway

As I noted in Saturday’s blog (see: "House Subcommittee Hearing on HR 5533 and HR 5577") Assistant Secretary Robert Stephan announced at a Congressional hearing on Thursday that the Phase I high-risk facilities had been notified in March that they had to complete their Security Vulnerability Assessments (SVA). He noted that their 90-day time limits to complete those assessments would be up in just a few weeks.

Phase I Facilities

These Phase I facilities were selected early last summer when the CFATS regulations went into effect. No one has explained the selection process other than to say that these were facilities that DHS had ‘reason to believe’ would be classified as high-risk facilities. With that in mind we can assume that these are all high-profile chemical manufacturing and chemical storage facilities near large population concentrations that would be affected by a terrorist attack on these facilities; some of the obvious Tier I facilities.

If I had been involved in the selection process I would have argued for the widest possible selection of chemicals of interest, company sizes, and geographical locations. The 90 or so facilities selected would not be all of the supposed Tier 1 facilities in the country, but would represent the widest possible cross section of those facilities. These facilities would be the statistical equivalent of a sample poll.

There was a two-fold reason for selecting these Phase I facilities

    • The first was political. These facilities enabled DHS to rightfully claim that they were moving forward quickly with implementing CFATS at the highest risk facilities. Anyone seeing the immense task that DHS had been given and the woefully inadequate manpower they had available would have to assume that the overall implementation task would be painfully slow (as it has been). The use of the Phase I facilities gave the department some political cover.
    • The second was bureaucratic genius. Knowing that the implementation of any wide ranging, new regulation would be fraught with potholes, dead ends, and other varied obstacles, DHS decided to practice that implementation on a small scale. This allowed them to do much more handholding and guidance-giving then they would in a full-scale implementation. And, it gave them a way to work out many of the bugs in the system out of the public eye.

Appendix A Delays

DHS had originally planned on start the Top Screens for the Phase II (those facilities having Appendix A Chemicals of Interest (COI) at or above the Screening Threshold Quantities (STQ)) facilities late last summer. They had not taken into account the political firestorm that was ignited by the publication of the Proposed Rule for Appendix A. I am sure that they expected some complaints from some traditional chemical companies about the STQ of some of the chemicals listed, but no one was prepared for the vehement political onslaught that came from the agricultural lobby.

The aggressive letter writing campaign conducted by the propane industry caught DHS by surprise. The department never envisioned the CFATS regulations having much of an impact on rural America beyond perhaps some Top Screen filings. Their relatively isolated location would not make them attractive terrorist targets. Now the agriculture community was claiming potential paralysis would result from implementing expensive security procedures.

Several Senators climbed on the political bandwagon and threatened to withhold funding for CFATS (and actually tried to write that into the 2007 Farm Bill). This caused DHS to pull back and do a careful re-evaluation of Appendix A. The process significantly delayed the publication of the final version of the COI list until November; a date by which DHS had hoped to start the Phase I SVA work.

Still More Delays

As 30,000 and more chemical facilities started to take a hard look at the requirements for completing a Top Screen, the inevitable questions started to arise. DHS did a yeoman’s job of dealing with these. Special note needs to be taken of the IT support at the Help Desk that compiled an extensive list of Frequently Asked Questions on the DHS web site along with a fairly efficient search tool to navigate the extensive list.

Most of the questions were simple procedural matters that required nothing more than simple explanations of how to do things. As with any new program, however, a number of questions brought up issues that had simply never been considered in the design phase. DHS spent a lot of time and their limited manpower to deal with these. The extent of their work can be seen in the two revisions of the large instructional manuals for the Top Screen during the 60-day filing period.

On top of this implementation scramble, Congress (as part of the Omnibus Spending Bill) dumped a load of new regulatory work on DHS when they mandated the development of new chemical security regulations for the sale of ammonium nitrate. Because ammonium nitrate was included in the CFATS regulations, the CFATS team was going to be required to provide extensive input and coordination with the team developing the ammonium nitrate rule (due to be published this month).

One good thing came out of the new workload. The ammonium nitrate rules gave DHS a legitimate sounding excuse to exclude their most vocal opponents from the Top Screen Process. The issuance of the Agricultural Exemption Letter stole a lot of the political steam from the propane industry. Written very broadly, the letter exempted almost all-agricultural production facilities from the Top Screen requirement, whether or not the facility had ever considered using ammonium nitrate. The problem was temporarily resolved for an indefinite period of time.

More recently the propane study required by the Farm Bill and its associated out reach program to agriculture have added to the workload at DHS. Again, the same few people that are supposed to be implementing CFATS are being forced to work with their most vocal opponents on a problem that was essentially solved by the Agricultural Exemption Letter.

Vulnerability Assessments Finally Started

The Phase I SVA announcement last week marks the start of the next phase of the CFATS implementation. Again, DHS will have been providing direct assistance and guidance to the Phase I High-Risk Facilities in completing their filings. This again demonstrates that DHS is moving forward with increasing the security at the highest risk facilities and helps DHS to work out the inevitable bugs in another new system.

There will certainly be bugs in the SVA system. The data required is not going to be as easy to develop or format as the data required in the Top Screen system. The wide variety of facilities involved ensures that situations will arise that DHS did not, could not have foreseen. The use of these Phase I Facilities will point out a number of those situations, allowing DHS to correct some of the problems before the Phase II SVA process begins.

Unnecessary Secrecy

I am disappointed that there is not more information available about the SVA process. DHS has maintained that they need to keep the details of the system closely held to protect the security of the system. Unfortunately, I am going to have toside with the opponents of government secrecy on this issue. DHS needs to keep the process as open and visible as possible, for political reasons if no other.

Much of the anti-government rhetoric heard at congressional hearings about CFATS reauthorization over the last six months has been directed at the ‘unnecessary secrecy’ involved in CFATS. While I certainly do not endorse the often-heard call for more openness in the provisions of security plans and vulnerability assessment data, I can understand a lot of the frustration that leads to those calls.

Many portions of the chemical industry over the last half-century have had a poor record in sharing information about the risks of chemicals in the environment and the work place. On the whole, the chemical industry has been cleaning up its public relations act, but there is still a lot of old, bad blood between chemical plants and some of their neighbors.

DHS can save itself and the chemical industry a lot of political grief by keeping the process as open and transparent as possible. Keeping actual vulnerabilities and security details from public scrutiny is clearly justifiable, but the process to be used for reporting that information needs to be publicly available and understood in order to convince people that security (and thus their safety) is being actively improved, not just white-washed.

It would also be advantageous to DHS for purely practical reasons. The wide variety of types, sizes, and locations of facilities involved in SVA development means that DHS will not have been able see all of the potential complications and questions that will arise. Publicizing the process in advance will allow for a large number of new sets of eyes to look at the process and find potential flaws and problems. This would allow DHS to get a head start on solving some of these problems.

The Way Forward

The interesting part of the CFATS implementation is just now starting. The Top Screen was fairly straightforward; you had the material, you reported how much you had. Very little decision making or analysis went into that submission. The SVA is going to require chemical facilities to formally look at their operations from a perspective that is completely new for many of the people involved.

Properly done, the vulnerability analysis will open eyes and make management look at their facilities in a completely new light. Many facilities are going to just go through themotions. Most of this will be due to the lack of an adequate knowledge base and training. Some will be because of the obstructionist nature people involved. DHS has the challenge of sorting out those two types of facilities; educating the first into compliance and bludgeoning the second. It is going to be an interesting 90-day period when the Phase II notices go out.

And then there will be site security plans….

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