Congressional Hearings Week of 4-12-10

Congress is returning from their two-week Easter Recess this week. There is only one hearing currently scheduled that looks like it may be of concern to the chemical security community. Surprisingly this will not be the hearing on the progress of CFATS inspections that was promised by Rep. Jackson-Lee (D, TX); that would still take some time to set-up. No the hearing that might be of interest will be before the Homeland Security Sub-Committee of the House Appropriations Committee on the 15th at 11:00 am EDT. The hearing will look at “DHS Cyber Security Programs – What progress has been made and what still needs to be improved?” Undersecretary Rand Beers (NPPD) and Assistant Secretary Greg Schaffer (Cyber Security and Communications), are scheduled to testify. There is a remote possibility that industrial control system security will be mentioned (briefly if at all) at this hearing.

DHS Open Government Plan

Yesterday Secretary Napolitano announced the publication of the Department’s Draft Open Government Plan (DOGP), in both a press release and in a post on the DHS blog. Both can be found on the DHS web site. Reader’s of this blog will know that I have been pretty complimentary of how the Office of Infrastructure Protection runs the various web sites that impact on chemical security matters. Having said that (on numerous occasions) I am more than a little disappointed in how much that office has apparently been ignored in the DOGP. First I understand why there may not be ‘Data Sets’ (para 2.4) available from this office; too much of the information collected here is classified or restricted access. I would like to see some generic tabulated data on CFATS participation; things like number of initial Top Screens, SVA and SSPs. Data could be made available on the types of industries reporting and things of that sort without compromising any SSI or CVI information. I was very surprised not to see an NPPD or IP Reading Room (para 3.1.4) discussed in the DOGP nor can I find one on the net. If there were one constructed I would like to see it contain copies of unclassified reports from DHS to Congress on the status of rules and regulations required by legislation. I was also upset to see a complete lack of information about this DOGP on the Open Homeland Security Share Your Ideas web page. This was where we commented last month on what we (the public) wanted to see included in the DOGP. In fact that site still says “Check here on April 7 to comment on the draft plan”. It now seems that comments will not be accepted until April 30th through May 10th (para 3.2.1). Unfortunately, there is nothing on the Share Your Ideas page that reflects that; very confusing. All is not negative; I like the plan going forward for increasing the reply rate and reduce the reply time for Freedom of Information Act requests (para 3.1.6). If the 10% annual reduction in outstanding requests is achieved it will be a significant step forward in providing additional transparency in the Department’s operations. Editing Problem With so many comments about Web 2.0 and utilizing the internet to communicate with the public, I was very disturbed to see the DHS Open Government Plan utilize a web link convention (blue print and underlined) when referring to other parts of the document, but not providing actual links. This is a turn-off to serious netizens and must be more than a little confusing to the general public.

Oh well, enough of these comments for now, I’ll save the rest for April 30th and the start of the official comment period. Everyone interested in homeland security issues should read the DOGP. It is a good first effort.

Indiana Anhydrous Ammonia Leak

I haven’t commented on the continuing story of a methamphetamine related anhydrous ammonia leak last week; I figure I’ve probably beat that drum enough. A recent story on 14WFIE.com on the story does bring up another aspect of the problem that deserves some discussion, the Top Screen exclusion for farmers. On January 9, 2008 DHS published a notice in the Federal Register granting farmers and other agricultural users an indefinite extension on their requirements to submit a Top Screen if they had any of the COI listed in Appendix A to 6 CFR Part 27 at or above the screening threshold quantity (STQ) listed in that document. Part of the reason that this was done was because of the pressure applied by the Farm Lobby to grant a full CFATS exemption. This ‘indefinite extension’ (still in effect) effectively removed CFATS compliance responsibility from these facilities while DHS worked out a method to identify the high-risk Ag facilities without bothering the low-risk facilities.

Part of the justification for allowing this exemption to be put into place was that farms and such were removed from the urban centers that would be high priority terrorist targets. Thus any attacks on these facilities would have little practical effect on the nation; making them poor terror targets. Unfortunately this reasoning ignores a problem that urban and suburban planners have been dealing with for decades now, the boundaries of suburbia and urban areas are pushing further and further out into the hinterland. In the transition zones around most urban centers there is a patchwork of active agricultural land surrounded by suburban housing and strip malls. The Channel 14 news story reports that this farm anhydrous ammonia tank leak “triggered the evacuation of hundreds of people from their homes”. Now, the evacuation area was probably over-done as a matter of precaution in this instance; that is always the right thing to do on any chemical release. And, I’m not sure that, even if ‘hundreds of people’ were really at risk for a catastrophic leak at this site (which this wasn’t, it was a leaky valve), this would have raised this farm to the level of a high-risk facility if a Top Screen had been submitted. What the story certainly does show, however, is that agricultural facilities are found near population centers and thus may become ‘legitimate’ terror targets. I understand that DHS has been trying to work with the Ag Community to come up with a better way of identifying the truly high-risk Ag facilities without burdening the vast majority of the farm community with unnecessary paperwork. My late father, who owned a small ranch in California, would certainly have appreciated that effort. But, tens of thousands of other businesses were able to complete ‘needless’ Top Screens without going bankrupt. And we do need to identify any farms that are high-risk facilities to ensure that they are required to take appropriate action to prevent terror attacks on their facilities from having tragic off-site consequences. It is time to repeal the agricultural facility exemption for filing Top Screens. Only then will we be able to determine the true scope of the potential problem.

Reader Comment 04-03-10 CG Inspectors II

Last Saturday Anonymous left a response to a blog post written back in February about Coast Guard Inspectors. Based upon the lengthy observations about CG Inspectors, it is clear that Anonymous has some experience at MTSA facilities. I certainly appreciate those observations since I have little personal experience with these types of facilities, so I depend on Reader input. For CFATS facilities the final comment by Anonymous is most important; Anonymous wrote:

“Bottom line: Whether the industry is looking forward to new CFATS regs and the inspectors which come with them or not, it will be refreshing to have a cadre of inspectors who have undergone fairly extensive (and specific) training in the regulations, have ‘real-world’ experience (hopefully), and who are empowered to 'change gears’ based on what they are seeing in front of them during the inspection (ie. type of facility, location of facility, etc).”

Actually, the Infrastructure Security Compliance Division (ISCD) of DHS has gone even further than this; they don’t allow Chemical Facility Inspectors to ‘change gears’, they require it. Each facility will be inspected according to its compliance with its submitted and approved Site Security Plan (SSP). Inspectors might have an informal checklist of what to check at the facility, but it will be based upon that facility’s SSP, not some national standard. Some people at DHS have described the approved SSP as a ‘security contract’ with the individual facility. The negotiations of the provisions of that facility unique document is one of the reasons that DHS is having problems getting their inspection program moving forward as fast as some would like to see it move. Inspectors cannot go out and inspect a facility until there is an agreed upon SSP to inspect.

NRP Comments

Yesterday I tried to post a copy of my previous National Rail Plan (NRP) blog as a comment at the www.Regulations.gov web site for the NRP (Docket Number FRA-2010-0020). There was a problem with the system there; the docket existed, but it was not accepting comments. I left a ‘complaint’ with the Help Desk and they have fixed the problem. My comment is now posted as FRA-2010-0020-0002.1.

If you tried to post a comment to this docket yesterday, re-try soon. The system is now working the way it should.

Make your views known. Anyone associated with the shipment of rail security-sensitive materials {49 CFR §1580.100(b)} that is concerned that the Federal Railroad Administration (FRA) is ignoring the security of the rail shipment of those materials during the development of their NRP should share that concern with the FRA. Anyone that has concerns about these hazardous materials traversing their communities and the fact that the FRA is ignoring the security of those shipments during the development of their NRP should post a comment to this docket. Finally, anyone that has concerns about the Federal government developing a plan dealing with improving the rail transportation system in this country while ignoring the associated security risks should post a comment to this docket.

After all, the FRA did ask for our input.

Article on CFATS Inspection Delays

A bit of a controversy has brewed up after Monica Hatcher of the Houston Chronicle reported this last weekend on the delays in the CFATS inspection process. Ms Hatcher reported that only 12 facilities have been inspected to date. While this should not be news to readers of this blog, it apparently caught Rep. Gene Green (D, TX), a member of the House Homeland Security Committee, completely by surprise; so much so that he is now reconsidering his previous support for the House passed HR 2868. Sue Armstrong, the acting deputy assistant secretary for infrastructure protection at DHS, explained the inspection situation to the Senate Homeland Security and Governmental Operations Committee at its CFATS status hearing back on March 3rd. A large part of the problem is due to the fact that DHS must negotiate changes in each facility’s Site Security Plan (SSP) submission to get it up to where the Infrastructure Security Compliance Division (ISCD) believes that it meets the requirements of the Risk-Based Performance Standards (RBPS). The negotiations are necessary since Congress prohibited DHS from requiring any specific security measures as a pre-requisite for SSP approval. According to a subsequent article by Ms Hatcher, Rep. Shirley Jackson-Lee (D, TX), is planning on holding hearings in the Sub-Committee she chairs, the Subcommittee on Transportation Security and Infrastructure Protection, on the reasons for the delay. As a co-sponsor of HR 2868, she is concerned that these delays will further justify delays in considering and ultimately passing HR 2868 in the Senate. Inspection Delay’s Were Inevitable Actually, these delays could easily have been foreseen by anyone that has done any sort of compliance inspections. The complexity of the RBPS, the wide variety of the facilities that are covered under CFATS, and the restrictions that have been placed upon DHS by the Congress (including late funding of inspection personnel in the early part of the program) have all worked to make this a much more complex process than most people apparently expected. At this point the only thing that is going to make this go any faster will be a drastic scaling up of the number of facility inspectors. With 6,000 facilities to inspect, 50 weeks per year available for inspections, that means that there will have to be 120 inspections per week to get to every facility within a year. If you have a three person team conducting each inspection (a small number for the largest facilities, but probably too many for the smallest facilities) you would need at least 360 trained inspectors. That is assuming that they were able to complete one inspection per week Given the need to preview the negotiated SSP in detail before the inspection, and to compile and prepare the post inspection report; a week is probably too little time. Add to this the need for re-inspections, compliance assistance visits, and the inevitable other requirements that crop up in a government organization; and you probably really need 500 trained inspectors along with a substantial support staff. Oh, by-the-way, Ms Armstrong has mentioned a number of times the difficulties that the Department has been having getting qualified personnel through the lengthy and bureaucratic Federal hiring process. Oh yes, did I mention that each inspector must go through a 14 week training program since there is no pool of chemical facility security inspectors to hire from? In short, everyone is just going to have to accept that the facility inspection process is going to take at least two years to complete. And DHS intends to re-inspect Tier 1 facilities every year and Tier 2 facilities every two years. Secretary Napolitano needs to go back to Congress for more head count. ISCD is going to need it. Or, you could have DHS opperate like OSHA and EPA, do an inspection only after there is a terrorist attack. Then you can fine the facility while you’re counting the dead bodies.

White House Homeland Security Page Updated

The White House made a change to their Homeland Security page, adding a link to the recently released “Surface Transportation Security Priority Assessment”. This report was prepared by the Transportation Sub-IPC, a sub-committee of the National Security Staff’s Transborder Security Interagency Policy Committee (IPC). According to the Executive Summary: “The study identified a set of 10 issue areas to examine, obtained input from surface transportation sector stakeholders, and analyzed the responses to reach a consensus set of priorities and recommendations.” As with most high-level policy guidance documents, this assessment is long on generalities and short on specifics. It looks at 10 issue areas and produced 20 recommendations. The level of generality is probably exemplified by the 8th Recommendation:

“Reemphasize National Infrastructure Protection Plan (NIPP) framework priorities with the Sector-Specific Agencies (SSA); surface transportation owners/operators; and State, local, tribal, and territorial (SLTT) partners in order to focus development and implementation of a relevant and representative model that enhances security of the Transportation Systems Sector partners.”

While much of the program outlined in this document can be implemented by the Obama Administration without additional Congressional input, there will have to be some legislative work done to provide the necessary authority and funding to execute the general proposals outlined in this document. Unfortunately, the methodology outlined in the document for producing these proposals did not seem to include any legislative input. It will be interesting to see if there is any concrete action taken by the Administration to make any progress on implementing these recommendations.