More Comments on Draft RBPS Guidance – 01-09-09

I’m not sure why I went back and re-checked the RBPS Guidance comment site on Regulations.gov, but I’m glad that I did. There were four comments posted to that site in the last month; well after the comment period was closed. Additionally there was a comment that I had some how missed earlier The five comments were received from: Synthetic Organic Chemical Manufacturers Association US Chamber of Commerce American Chemistry Council Shell Oil Company EnergyAPI 

Synthetic Organic Chemical Manufacturers Association Comments 

SOCMA appreciates that DHS has clearly delineated that the document is a guidance not a requirement. SOCMA would expect that facilities that followed the guidance could expect that their site security plan would be approved. SOCMA questions why Appendix B was ‘intentionally’ omitted from the draft. SOCMA complains that the lack of specificity in the personnel surety section could lead unions to object to any personnel surety action against employees was not required by DHS. SOCMA would like to see more discussion about what types of security forces DHS believes would be most effective in different circumstances. 

US Chamber of Commerce Comments 

The Chamber would like to see DHS clarify that auditors checking SSP compliance will not use an RBPS based checklist, but rather verify implementation of the site plan. The Chamber would like to see DHS confirm that security measures approved under other regulations would be acceptable to meet the requirements of CFATS. The Chamber would like to see DHS address the overlap of various DHS security regulations. The Chamber would like to see more segregation of emergency response and security response functions. The Chamber notes that personnel actions based on personnel surety requirements will be made at the company level not facility level and should not be addressed in the facility security plan. The Chamber complains that the record keeping requirements are not specific enough. 

American Chemistry Council Comments 

 The ACC wants the Guidance to more completely address the wide variety of facilities that are affected by CFATS. The ACC wants DHS to clarify that the guidance will not be used as an enforcement tool or basis for an inspection checklist once site security plans are approved. The ACC wants DHS to more clearly delineate the difference between security response and emergency response. The ACC notes a number of specific instances where the guidance is apparently too prescriptive. 

Shell Oil Company Comments 

Shell would like to see clarification in the RBPS document that it is not intended to be used as a basis for inspections of approved site security plan compliance. Shell would like to see DHS more clearly define terms like ‘critical area’, ‘secure area’, and ‘restricted area’, and suggests the use of MTSA definitions. Shell believes that the use of phrases like ‘dangerous chemicals such as COI’ imply that the security plan should address chemicals other than those specified in the Appendix A. Shell objects to the inclusion of specific percentages in the vehicle screening requirements in Metric 3.4. Shell objects to the requirement that facilities be able to interdict an armed attack on the facility. Shell would like to see the requirement for a ‘know your customer program’ removed from Metric 5.2. Shell objects to a wide variety of requirements in RBPS #12, personnel surety. 

EnergyAPI Comments 

API believes that many of the RBPS do not address the unique nature of gasoline storage and loading facilities; noting that these facilities fall under CFATS due to the benzene content of gasoline. Noting that many of these facilities are unmanned, they object to the identification and inspection requirements of RBPS #3. They also object to the security guard/CCTV requirement under RBPS #4 as unnecessary at these low-risk facilities. 

My Comments on Comments 

From the dates on the individual comments it appears that they were mailed to DHS within the time frame required for comment submissions. I’m not sure where the delays were in getting them posted to the Regulations.gov website. I don’t suppose that it is really relevant since it is their consideration by DHS that is really important. It continues to amaze me that so many commentors praise DHS for providing guidance and not binding requirements and then criticize the document for not providing enough or providing too much detail in the guidance. And I am completely flabbergasted that they can make both of those complaints in the same document. 

 Then API comes along and completely blows me away. Claiming that putting ‘a guard or CCTV’ system at a gasoline storage facility is excessive due to the low risk takes first prize for completely misunderstanding CFATS. If DHS has determined that a large gasoline storage facility is a high-risk facility (and if they are a Tier 4 facility they are, by definition in CFATS, at high-risk for terrorist attack). A gate-guard or CCTV system is going to be the cheapest part of the security that will eventually be put in place at these facilities before their site security plan has any hopes of being approved by DHS. 

 The other area that constantly comes up in the corporate comments to the Draft RBPS Guidance document is the personnel surety issue. DHS has always been adamant that unescorted access to critical or high-risk areas must require background checks. This is a cornerstone of any security program. Industry commentors rightly point out that in most multi-facility companies, the personnel actions are centrally controlled, not facility controlled. What they apparently fail to recognize is that under CFATS the security of high-risk facilities is considered a corporate responsibility, not a facility management responsibility. This is reflected in the requirement for a corporate officer to be the Authorizer in CSAT. If the corporate Human Resources has to be involved in establishing and managing the personnel surety system for the high risk chemical facilities, so be it.