Thursday, December 22, 2011

More Problems at ISCD

There is an interesting article over at about an internal report on some management and personnel problems at the DHS Infrastructure Security Compliance Division (ISCD), the people that manage the Chemical Facility Anti-Terrorism Standards (CFATS) program. Many of the areas addressed in the article will not be news to long-time readers of this blog; I started reporting on some of these issues almost a year ago.

I’m glad to hear that Rand Beers, the undersecretary for DHS’ National Protection and Programs Directorate (the home of ISCD), initiated this internal investigation of the issues and problems facing the program. More importantly it appears, from this article at least, that he is attempting to do something about solving those problems.

It would be nice, however if the report were made public, so that we all could see the extent of the problems and the proposed solutions. I’m sure that members of the regulated community would have some valuable input.

Don’t Forget the Accomplishments

While negative reports like this attract lots of public attention and press scrutiny, it is good to remember the good things that have been accomplished by the hard working folks at ISCD. They include:

• Starting a regulatory program from scratch with little guidance from Congress;

• Writing, publishing for public comment and revising the CFATS regulations within the deadline given to the Department to publish an Interim Final Rule without the comment process;

• Developing and beta testing a set of innovative on-line tools for registering potentially affected facilities, collecting chemical inventory and facility data to winnow the facilities that were not at high-risk of terrorist attack;

• Established a training program for a unique security inspection program; and

• Developing, publishing for public comment and revising a Risk-Based Performance Standard (RBPS) guidance document to help facilities to understand the security requirements of the program.

More importantly all of the above were accomplished while maintaining a strong working relationship with the regulated community even while the program was costing facilities large amounts of money to implement the requirements of the program.

Congress Should Share the Blame

When Congress added the §550 authorization for the CFATS program to the DHS Appropriations Act FY 2007, they saddled the folks at ISCD with a lot of unnecessary baggage that may have contributed to the problems the program now faces. Two major problems resulted from that authorization process, regulatory uncertainty and unenforceable standards.

With the program clearly being a stopgap measure because of the political inability to reach a consensus on program goals (conventional security measures vs inherently safer technology being the major sticking point), both industry and the environmentalists have been completely amazed at their inability to convince the other side to acquiesce to their minimal program demands and there has been little effort to find a reasonable middle ground.

Industry finds this particularly galling as they are spending or programming for spending large amounts of money on non-productive projects that could become a complete waste of time and money if long-term authorization of the program is based upon the environmentalist agenda.

The unenforceable standards problem more directly relates to the current delays in the site security plan approval and subsequent inspection programs. With Congress forbidding the Secretary from requiring the implementation of any specific security process or tool, the ISCD program managers cannot tell a facility how to upgrade their programs to meet the requirements of the RBPS. They can only explain the deficiencies in the facility’s plans to meet the loosely defined standards and then hope that the facility will subsequently identify a suitable remedy.

Moving Forward

I would certainly extend my support to the comment by Beers at the end of the Fox article; I too “am presuming that this is a program that the American people and the Congress of the United States want, and that we will continue to improve our ability to (implement it)". I would also like to remind people that if a successful terrorist attack on a high-risk chemical facility occurs during this implementation interregnum, political and corporate heads will roll.

Congress needs to make it a high priority to review this DHS report in detail when they return from the end of year holidays and to resolve who is responsible for the oversight of this program and then conduct some real oversight hearings focusing on program accomplishments and shortfalls.

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