Comments on Draft RBPS Guidance – 12-05-08

The holiday weekend must have held up a number the comments from getting through to Regulations.Gov. A full week after the end of the comment period and new comments were still being posted to the site. As of last Friday there were twenty new comments submitted. This is too many comments to review in a single blog. The list below shows the commenters that will be reviewed in this blog. The remainder will be reviewed later this week. Marathon Oil Corporation Air Liquide BP Edison Electric Institute and USWAG GB Biosciences Corporation The Aluminum Association Payne Fence Products DCP Midstream LLC The Fertilizer Institute Tectonic Engineering Lubrizol Corporation Marathon Oil Corporation Comments Marathon complains that the Guidance implies that facilities should include provisions for chemicals in the SSP other than those listed in the initial notification letter received after Top Screen submission. Marathon believes that the Guidance should explain how inspectors will use the Guidance to evaluate SSPs. Marathon believes that the wording in Metric 4.5 implies that armed security forces will be required and believes that arming security forces would be unsafe at many chemical facilities. Marathon believes that the redress procedures described for RBPS #12 cannot be applied to DHS disqualifications based on the Terrorist Screening Database managed by DHS. Air Liquide Comments Air Liquide believes that DHS should be more specific in explaining that security measures may be limited to areas in which high-risk materials are stored or handled. Air Liquide believes that DHS should remove specific numeric bench marks found in Metrics 3.4 and 13.2. Air Liquide believes that DHS should include specific time frame bench marks in the discussions for RBPS #4. Air Liquide believes that DHS does not consider other security implications of the strict vehicle parking restrictions found in Metric 3.3. BP Comments BP believes that DHS should clarify the Guidance with respect to the choice between Asset-Specific and Facility-Wide security measures. BP believes that DHS should describe the records that should be maintained as part of RBPS #18. BP believes that the suggestion in the Guidance to co-locate safety and security control systems in a command center is not always feasible. Edison Electric Institute and USWAG The Edison Electric Institute and the Utility Solid Waste Activities Group commend DHS on the development of a useful tool to help guide the development of appropriate security measures at a diverse set of facilities. GB Biosciences Corporation Comments GB Biosciences believes that the Guidance should include a discussion of the coordination with TSA for facilities that might also be hazmat shippers or receivers covered under the new Rail Transportation Security Regulations. GB Biosciences believes that it is not necessary to provide continuous escorts to personnel as implied in Metric 3.2. GB Biosciences believes that the discussion in Metric 4.5 requires the use of armed security personnel, which may be unsafe at many chemical facilities. GB Biosciences believes that the Guidance should discuss how current personnel surety procedures would interface with the requirements of RBPS #12. GB Biosciences would like DHS to clarify the role of Site Security Officer and explain if a safety professional can hold that position. The Aluminum Association Comments The Aluminum Association that the 4 Tier level associated with CFATS provides for too little differentiation between security levels required for facilities. The Aluminum Association recommends that the Guidance be submitted to an outside review by security experts. Payne Fence Products Comments Payne Fence Products believes that the discussion of perimeter barriers should be more robust and include discussion of fencing products other than chain link fences which are relatively easy to penetrate. Payne Fence Products believes that the discussion should include bullet-resistant barriers and anti-tunneling measures. Payne Fence Products believes that reliance on State Department K ratings for vehicle barriers is dated and should be replaced by references to ASTM F2656-07. Payne Fence Products objects to the inclusion of commercial sources of information and recommends that DHS use the American Fence Association web site instead. DCP Midstream LLC Comments DCP Midstream believes that DHS should explain how the department might utilize RBPS #19. DCP Midstream believes that Metric 4.5 requires the use of armed security personnel and DCP Midstream questions the safety of allowing firearms on facility property. The Fertilizer Institute Comments The Fertilizer Institute supports the provision of a Guidance document that does not establish legally enforceable requirements. Tectonic Engineering Comments Tectonic recommends that DHS include a discussion in the Guidance documents on how facilities can resolve disagreements about Site Security Plan provisions with DHS since DHS cannot prescribe solutions. Tectonic also recommends that the Guidance provides a list of acceptable Alternative Security Plans. Lubrizol Corporation Comments Lubrizol appreciates the efforts DHS made in crafting a Guidance document that assists facilities in crafting an acceptable Site Security Plan without specifying legally enforceable requirements. My Comments on Comments It amazes me the number of commenters that noted that some of the requirements were either too prescriptive or not prescriptive enough. With the number qualifiers, explanations and disclaimers that DHS has included in this document, there should be no doubt that DHS has no intention or even legal basis for requiring anyone to comply with anything in this document. That Air Liquide could argue both sides of the prescription argument in the same document is especially intriquing. The most consistent comment in these eleven submissions is the concern expressed about the apparent requirement for armed guards embodied in Metric 4.5. Ignoring for the moment my previous comment about the lack of legal specificity, these comments provide an important point for discussion; do some facilities need to reconsider their stand on armed guards. I have dealt with the issue of arming security guards in some detail in a series of blogs that I wrote back in June of this year. In particular I addressed weapons limitations and the potential for overcoming those limitations by using unconventional weapons. I urge anyone interested in this issue to read those blogs. Here I’ll just discuss the need for armed guards. First off, armed guards are not required in this RBPS Guidance document; nothing can be required by law. Even Metric 4.5, which concerns so many of the commenters, specifically mentions that either armed or unarmed guards may be used to fulfill the ‘requirements’ of this metric. So facilities can rest assured that DHS does not require armed guards. Now, having fulfilled the section 550 requirement, lets discuss reality. First off, not all facilities even need to consider armed guards. Facilities that only have theft/diversion COI only need to delay attackers long enough for local police to apprehend them before they get too far from the facility gate with their stolen chemicals. Armed guards are not required; just good communications and a police response plan. The highest risk facilities, those Tier 1, and possibly Tier 2, facilities, are going to have to take a good hard look at using armed security personnel. There is no other way that they are going to have any significant chance of stopping any half-way organized terrorist attack on their facility. There is no barrier system that cannot be overcome in minutes with a small explosive device. There is no other way to stop a team determined to enter the facility. The only other realistic alternative is to get rid of the Toxic (and possibly flammable) COI that makes the facility Tier 1. Remember, if you get a terrorist attack delayed and rely on the local police for your response force, they are going to arrived armed and trigger happy. They are not going to know the areas of the facility where the simple act of discharging a service revolver may ignite a firestorm. They are not going to pay attention to what is down range of their weapons on the other side of their terrorist target and will certainly puncture the worst possible storage tank with their stray bullets. At least with a trained security force under facility control there is a chance of avoiding the collateral damage; not a good chance, but a chance none the less. Finally, ask yourself if your facility were located in the Niger Delta, would you have armed guards patrolling the facility? If you doubt that your answer would be yes, then ask the security managers from Exxon or Shell facilities that have been attacked in those areas. They certainly have armed security forces protecting their facilities.