Thursday, July 22, 2010

CSSS Presentations – Personnel Surety

During the Chemical Sector Security Summit earlier this month Matt Bettridge from DHS provided an update on the status of the proposed Personnel Surety program being developed to provide high-risk chemical facilities a tool to allow them to submit information to have employees and visitors checked against the Terrorism Screening Database for ‘terrorist ties’. This check will provide covered facilities a method for meeting their obligations under §27.230(12)(iv). This proposed program has generated a great deal of controversy since it was first introduced via a 30-day information collection request (ICR) notice in the Federal Register last summer and modified by a 60-day ICR notice earlier this year. The slides for this presentation do not directly address many of the concerns raised by industry, but the tone and the details of the steps going forward should ease some of those concerns. Covered Personnel The presentation outlined the general procedures and addressed the issue of which facility personnel would be affected by the submission requirements. The slide specifically states that the program “[d]oes not affect facility personnel that do not have access to facilities’ restricted areas or critical assets” (slide 2). This apparently indicates a change in the intention of DHS to require screening all facility personnel (as understood by most commentors to the DHS 60-day notice). Rule Making Process A number of commentors on the ICR notices expressed concerns that the proposed personnel surety program should be covered by a formal rule making process rather than the less formal ICR process. The presentation partially addressed this issue by explaining that DHS would submit an notice of proposed rule making (NPRM) under the Privacy Act System of Records Notice (SORN) requirements. That NPRM would be published in the Federal Register at the same time that DHS publishes their response to the public comments received for the 60-day ICR notice. Timeline According to the presentation the “[i]nitial implementation of CFATS Personnel Surety is on pace for late fall 2010” (slide 7). DHS intends to use the same technique that they have used for the introduction of most new CSAT tools; the initial implementation will take place with a small group of select facilities. In this case they plan on using facilities that have already completed the SSP process and have approved plans. Lessons learned from that live testing will be used to perfect the tool before its general release. Unresolved Controversies There were a number of items in the presentation that do not appear to have changed since the 60-day ICR was published, even though they drew a number of adverse comments from industry. DHS still does not intend to ‘routinely notify’ the facility or the individual of a positive match in the TSDB search. I would hope that Mr. Bettridge took the opportunity to explain the reasoning for that during the presentation, but it doesn’t show on the slide presentation. The slides also indicate that DHS still intends to require facilities to “[n]otify DHS when an affected individual no longer has access to the restricted area and/or critical asset”. A number of commentors complained about the administrative burden that such a requirement would place on facilities, especially facilities that would be required to list off-site corporate personnel as having unaccompanied access. The wording on the slide seems to parallel the ICR wording that seemed to require including to which restricted area or critical asset that each submitted individual would have access. A number of commentors complained that this went far beyond the scope of requirement to check individuals against a list of known/suspected terrorists. There wasn’t any legal requirement for DHS to address these issues at this venue, but it certainly would have provided a good forum for explaining the reasoning or easing concerns of the regulated community. Now Mr. Bettridge may have actually availed himself of that opportunity, but it isn’t reflected in the slides. This is just another reason why I think that it would have been much better if DHS had provided video or even audio copies of the actual presentations on the CSSS Presentations page.

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