Sunday, May 16, 2010

CFATS Background Check ICR Comments – 05-14-10

Last week the 30-day comment period ended on the DHS information collection request (ICR) supporting the proposed CFATS Background Check Tool. These ICR filing seldom garner any comments, but, as was expected, there were a relatively large number of comments, 20 comments, on this ICR. There are a number of important issues raised in these comments, but I would like to address just a couple in this blog post. ICR or Rule On issue that made a reappearance on these latest comments on the proposed information collection request (ICR) was the use of the ICR process versus going through the rule making process to establish this Background Check Tool. These commentors felt for a variety of reasons that the ICR was not an appropriate vehicle for establishing the personnel surety tool. For example the commentor from Shell noted that; “We believe that implementation of a PSP program is of such a impact and significance that using the ICR approach is not adequate for the task at hand, and we see it as a most disturbing precedence.” (pg 2) From a detailed reading of these comments it is pretty clear that these commentors do not object to the actual Background Check Tool so much as the requirements for whom and when the checks will be required. The NPRA commentor noted that: “The processes and procedures outlined in this ICR do not reflect a simple information collection under an existing rule; rather, the prescriptions in this ICR establish new requirements and burdens on industry.” Since these concerns were included in comments made last summer for the 60-day ICR notice, it would seem to me that the folks at ISCD disagree with these commentors assessment of the legal requirements involved. Unfortunately, these types of substantial legal disagreements inevitably end up in court and, in this case, end up slowing the implementation of a necessary security tool. Section 550 Limitation A couple of commentors pointed out that the way the ICR is worded makes it clear that the Background Check Tool (BCT) would be the only way that facilities would be able to fulfill the RBPS 12 requirement to check personnel against the TSDB. This would run afoul of the Section 550 prohibition against DHS mandating any specific security procedure as a pre-requisite for approval of the facility SSP. If ISCD made clear in its documentation for the BCT that personnel with TWICs or other TSDB based clearances would not have to be run through the BCT, the legitimacy of this claim against the §550 prohibition would be greatly lessened. Though the fact that few facilities could legitimately require all of their covered personnel to acquire a TWIC would have the practical effect of mandating the use of the BCT. Background Check Required Coverage A number of commentors were apparently caught by surprise by the number of facility personnel that would be subject to the TSDB check requirement. Section 27.230(a)(12) states that all facility personnel “with access to restricted areas or critical assets” would be subject to the personnel surety program checks. The ‘unescorted’ modifier clearly only applies to ‘visitors’, so all employees have access of one sort or another under this section. The one thing that could cause some problems is how contractors will be treated since many facilities use contractor employees to actually run many, if not all, of the physical processes at the facility. Other Issues There are a number of other issues that were raised by commentors that will have to be addressed by DHS when it refers this ICR to the Office of Management and Budget (OMB). If DHS continues to treat this as a ‘simple’ ICR rather than going to the rule making process, we may never know how DHS responded to each specific comment; there would be no further postings in the Federal Register unless OMB fails to approve the final ICR. Unfortunately, I expect that this ICR will not get submitted to OMB. It will fall behind the other controversial items (ammonium nitrate rule and the ‘temporary’ agricultural exemption for example) in the DHS regulatory black hole, bouncing back-and-forth between the approval and re-write requirements of the political appointees, never again to see the light of day. Until, of course, an attack on a chemical facility blasts it free of the political event horizon.

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