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Industrial Safety Training Council and Safety Council Security Consortium August 29, 2007. Robert R. Belair Oldaker, Biden & Belair Washington, DC (202) 496-3445 BBelair@obblaw or bobbelair@aol.com. Regulating Security at Chemical Facilities.

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industrial safety training council and safety council security consortium august 29 2007

Industrial Safety Training Council and Safety Council Security ConsortiumAugust 29, 2007

Robert R. Belair

Oldaker, Biden & Belair

Washington, DC

(202) 496-3445

BBelair@obblaw or bobbelair@aol.com

regulating security at chemical facilities
Regulating Security at Chemical Facilities
  • 2002: The President signs into law the Maritime Transportation Security Act, requiring personnel surety at the nation’s ports.
  • 2006: The President signs into law the Department of Homeland Security (DHS) Appropriations Act of 2007
    • Requires DHS to issue regulations on chemical facility security standards
  • 2006: The President signs into law the Security and Accountability for Every Port Act (SAFE Port Act)
    • The SAFE Port Act implements the security provisions of the Maritime Transportation Security Act of 2002
    • Requires TSA and the Coast Guard to issue regulations implementing the Transportation Worker Identification Credential (TWIC)

Robert R. Belair

tsa coast guard twic implementation
TSA / Coast Guard TWIC Implementation
  • March 26, 2007:TSA / Coast Guard issues a Final Rule on TWIC implementation
    • Covers unescorted access to secure areas at maritime facilities
    • Coast Guard Captains of the Port will determine which facilities must comply with TWIC within each of their respective zones
    • Facilities which are not required to implement TWIC cannot choose to voluntarily implement TWIC
    • States are not preempted from instituting their own personnel surety requirements but these requirements must be in addition to, not instead of, TWIC

Robert R. Belair

tsa coast guard twic implementation4
TSA / Coast Guard TWIC Implementation
  • TWIC Program Requirements:
    • Facility owners have the discretion to designate all or part of their facility as a “secure area” requiring a TWIC (subject to Coast Guard approval)
    • All individuals must have a TWIC or be escorted by someone who has a TWIC within the designated secure areas of a facility
    • Owners may obtain a TWIC for direct hires
    • Uncertainty remains as to the TWIC eligibility of contractor employees, temporary employees, and others who require access but are not direct hires

Robert R. Belair

tsa coast guard twic implementation5
TSA / Coast Guard TWIC Implementation
  • To Obtain a TWIC:
    • Application
    • Fees
    • Security Threat Assessment:
      • Criminal history screening (reliant on HAZMAT standards)
      • Immigration / Residency status
      • Terrorist screening
      • Biometric-based identification
    • Renewal every 5 years

Robert R. Belair

tsa coast guard twic implementation6
TSA / Coast Guard TWIC Implementation
  • The Plan:
    • July 1, 2007 was the deadline for the initial rollout of TWIC at the 10 top priority ports
    • January 1, 2008 is the deadline for the second phase of TWIC implementation at the next 40 top priority ports
    • September 25, 2008 is the deadline for all U.S. ports to be in compliance with TWIC
  • The Reality:
    • The Port of Delaware is the only port expected to implement TWIC during 2007

Robert R. Belair

dhs chemical regulations
DHS Chemical Regulations
  • April 2, 2007:DHS issued Interim Final Regulations on Chemical Facility Anti-Terrorism Standards (DHS Chemical Regulations)
    • Establishes risk-based performance standards for personnel surety
    • Implementation will proceed in phases to address the highest security risk facilities first

Robert R. Belair

dhs chemical regulations8
DHS Chemical Regulations
  • Personnel Surety Requirements:
    • The level of screening for employees and contractors will be commensurate with the risk status of the facility and with the level of access provided
    • Facilities may continue current background checking procedures if the process satisfies performance standards with regards to:
      • Verification and validation of identity
      • Criminal history
      • Legal authority to work in the U.S.
      • Screening for terrorist ties

Robert R. Belair

dhs chemical regulations9
DHS Chemical Regulations
  • Alternative Security Programs (ASPs):
    • DHS may allow a facility to retain or to implement its own program if it provides an equivalent level of security as imposed by the DHS Chemical Regulations
    • DHS has expressed a commitment to capitalizing on the investment made by facilities to develop their own security plans

Robert R. Belair

dhs chemical regulations10
DHS Chemical Regulations
  • Implementation:
    • DHS has yet to publish a final Appendix A, containing a list of chemicals, the possession of which will trigger compliance requirements under the DHS Chemical Regulations
    • Once the final list is released (or DHS publishes an independent timeline), a facility will have:
      • 60 days to complete a Top Screen
      • 90 days to perform a Security Vulnerability Assessment
      • 120 days to submit a Site Security Plan

Robert R. Belair

istc scsc petition to dhs
ISTC/SCSC Petition to DHS
  • May 4, 2007:ISTC/SCSC submitted a petition to DHS seeking a determination that:
    • The ISTC/SCSC may submit applications on behalf of member chemical facilities for approval of the ISTC/SCSC background checking process as an ASP under the DHS Chemical Regulations
    • The ISTC/SCSC background checking process should be the preferred approach over TWIC at chemical facilities regardless of whether or not the facility has a pier

Robert R. Belair

weighing personnel surety options
Weighing Personnel Surety Options

ISTC/SCSC ProcessTWIC

Robust Limited

Nuanced Pass-fail only

Timely Slow response times

Privacy-sensitive National ID card?

Inexpensive Costly

Robert R. Belair

the political environment
The Political Environment

Recent congressional hearings have been highly critical of TWIC implementation

  • On April 26th:The House Homeland Security Subcommittee on Border, Maritime, and Global Counter-terrorism held a hearing to review the SAFE Port Act
  • On July 12th: The House Transportation and Infrastructure Subcommittee on Coast Guard and Maritime Transportation held a hearing to review TWIC

Robert R. Belair

congressional support
Congressional Support
  • Representative Ted Poe (R-TX)
    • The Congressman sent a letter to DHS Secretary Michael Chertoff seeking a determination that the ISTC process should be recognized as an ASP under the DHS Chemical Regulations
  • Senator Kay Bailey Hutchison (R-TX)
    • The Senator supports the letter from Congressman Poe and is pursuing alternative avenues to further clarify the regulatory requirements that will apply to chemical and refining facilities in Texas

Robert R. Belair

next steps
Next Steps
  • Continuing DHS outreach
  • TSA / Coast Guard outreach
  • Congressional outreach
    • Coast Guard Reauthorization
    • DHS Appropriations
    • House Homeland Security Committee chemical security legislation

Robert R. Belair