Saturday, March 8, 2014

Public Comments on CFATS PSP 30-day ICR Notice

The public comment period closed this week on the 30-day ICR notice for the CFATS personnel surety program. Only 8 public comments were posted on the docket on the web site. Those were almost certainly not all of the comments submitted as the notice provided instructions for direct submission to OMB’s Office of Information and Regulatory Affairs (OIRA). Comments submitted I that manner would be available via a Freedom Of Information Act request, but not generally in any other manner.

Comments were received from:

Comment Analysis

NOTE: The numbers in parentheses indicates how many commenters addressed that particular issue.

Not surprisingly there are continued industry opposition (4) to the requirement to submit personally identifiable information (PII) on personnel with existing TSDB vetted credentials. No comments addressed how industry expected to ensure that an individual has shown up on the TSDB since being vetted for the alternate credential.

There were also comments (1) about the PSP being introduced through an information collection request process rather than a rule making. The objection being that the ICR notice sets forth detailed procedures and requirements for the PSP. This ignores the fact that all of the on-line tools for CFATS were accompanied by manuals that outlined detailed procedures and requirements and did not go even through the ICR process since they did not collect PII.

Industry continues to object (2) to the lack of an absolute commitment by DHS to notify facilities when a submitted individuals PII turns up a positive match on the TSDB. They continue to either ignore or not be swayed by the argument that a criminal investigation of the individual may prevent, by law, DHS from notifying facilities of such a match.

Objections were also raised (2) about the requirement to notify ISCD when an individual no longer had access to the covered facility. Commentors ignored the ISCD explanation that it needed to know when to stop the recurrent vetting of individuals against the TSDB.

An industry proposal for DHS to establish a method of allowing personnel to directly submit their own PII to DHS was mentioned (3). Such a system would place the onus of ensuring that the individual submitting the information was who they claimed to be on DHS when facilities already have that responsibility in their other RBSP #12 mandates. Additionally, no one has explained how the individual would be able to prove their PII submission to a facility.

There is an interesting discussion about 3rd party PSP services in Industrial Safety Training Council submission. It is a bit of an advertisement, but an interesting discussion if you read past that.

An interesting comment is provided by the AAR about the cost benefit calculation. The extenisvie calculation provided in the ICR does not address the costs associated with outside agencies, like the railroads, having to vet their personnel against the PSP. Technically, DHS does not have to consider that since the railroads are specifically not regulated under CFATS and it is the covered facility’s responsibility to ensure that all personnel given unescorted access to the facility are properly vetted. In practice, however, many non-chemical facility organizations will end up being affected by this rule.

Yeah or Nay?

Final Tally: 3 for; 5 against. Two of the three commenters supporting the ICR are providers of 3rd party background checks; such support is certainly in their best business interest. The third supporter is the American Chemistry Council. They support the proposed PSP with some suggested changes, but it is support from an influential chemical organization.

Normally, I would suggest that the lack of comments from some previously vociferous detractors would be a positive sign. With the ability to submit comments directly to OIRA, however, the lack of objection does not necessarily signify grudging support or even inactive opposition.

Moving Forward

The Personnel Surety Program ICR is now in the hands of OIRA. There is no telling how quickly (okay not very quickly is mostly expected) OIRA will take to provide their approval or disapproval of the ICR. They never did approve/disapprove the first PSP submission made in 2010; it was finally withdrawn by ISCD in 2012.

Given the President’s Executive Order on Improving Chemical Facility Safety and Security, one would like to think that the consideration of this ICR would be expedited, but this is an inherently political decision and this Administration has repeatedly shown how slow it is to make a decision with political ramifications.

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