Monday, June 7, 2010

Retailers and Personnel Surety

There is an interesting audio report on the site about how the proposed DHS personnel surety program (PSP) will affect the agricultural community. While the report mistakenly says that DHS has actually introduced the new PSP (a final version has not yet been published), it does point out potential problems that agricultural retail facilities may have with almost any PSP for chemical security issues. High-Risk Retail Facilities As far as I know, the only retail facilities in this country that routinely sell DHS chemicals of interest (COI listed in Appendix A of 6 CFR Part 27) in quantities of interest to DHS would be agricultural supply facilities. Many of these facilities would have large enough quantities of anhydrous ammonia, ammonium nitrate, and/or propane on site to be required to file a Top Screen with DHS Infrastructure Security Compliance Division. Certainly some of these facilities will be in close enough proximity to people, places or things of enough interest to DHS that they will be declared a high-risk facility under the CFATS regulations. Now in my limited experience with ag-supply facilities (I have picked up a couple of pick-up truck loads of feed and fertilizer), it seems that a significant number of truckloads of the previously mentioned COI leaving the facility were not commercial trucks, but rather privately owned trucks from customer ‘production’ facilities (farms and ranches). I would assume that each ag-supply facility would have slightly different rules of operation, but the two that I have seen had substantial amounts of truck loading done by customers or loading done with customer assistance. Restricted Areas The CFATS regulation {6 CFR §27.230(12)} requires each high-risk facility to conduct “appropriate background checks on and ensure appropriate credentials for facility personnel, and as appropriate, for unescorted visitors with access to restricted areas or critical assets [emphasis added]”. Now, DHS does not have (is not allowed to have) hard and fast rules about what constitutes a restricted area or a critical asset. Having said that, I think everyone would agree that a bulk storage area for a release COI (flammable, toxic, and explosive) should be considered a restricted area. And areas where shipping quantities of theft/diversion COI are stored would also be a restricted area. Because customers are going to be frequently picking-up (or having their employees pick-up) many of these COI, customers will fairly routinely be found in or near these restricted areas. As long as they are ‘escorted’ by facility employees or security personnel, such customers will not fall under the CFATS requirement for background checks. Unescorted customers will, however, fall under the requirements of §27.230(12), and the facility will have to have procedures in place to conduct the appropriate background checks on these personnel. Escorting Commercial Visitors Once again, DHS does not have any specific rule about what constitutes acceptable escorting of visitors. Part of the reason for this is that escorting requirements are going to vary according to what part of the facility the visitors are accessing. The escorting requirements for the facility security control room would be substantially different from those for the bulk loading area for ammonium nitrate. The controlling factor would be the type of potential action that an unescorted visitor would need to perform to harm the facility. For a bulk storage tank of a release COI, one would have to have tools or explosives to damage the tank. For a theft-diversion COI one would have to be able to load-out containers of that COI. DHS has not established any standards (again because they are prohibited from doing so by the authorizing legislation) for what type of escorting is appropriate. A good argument could be made that active video surveillance of the bulk storage tank would provide adequate escort if, for example, the customers were given even a cursory search for explosive devices before the entered the restricted area. For theft-diversion COI an area video surveillance could be sufficient escort as long as all vehicles were searched upon entry and exit from the shipping area. Negotiating Security Requirements The way that DHS currently has the CFATS Site Security Plan evaluation set up, a facility has a great deal of leeway on how they will execute any number of the provisions. Even if DHS initially disapproves a proposed SSP, they will certainly entertain discussions about the ‘inadequate’ provisions, and are subject to engaging in negotiations in many instances. If you have reasonable justification for an escort provision, explaining that justification to DHS might result in them accepting the method for your facility. The whole point of the way the CFATS process was established is to ensure that each facility will be allowed to establish security procedures tailored to the reality of the situation on the ground at that facility.

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