Transcript Industrial Safety Training Council and Safety Council

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 [email protected]
Regulating Security at Chemical Facilities
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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

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 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 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 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

April 2, 2007: DHS issued Interim Final
Regulations on Chemical Facility AntiTerrorism 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 Regulations
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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 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 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
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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
ISTC/SCSC Process
TWIC
Robust
Limited
Nuanced
Pass-fail only
Timely
Slow response times
Privacy-sensitive
National ID card?
Inexpensive
Costly
Robert R. Belair
The Political Environment
Recent congressional hearings have been
highly critical of TWIC implementation
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
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

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
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Continuing DHS outreach
TSA / Coast Guard outreach
Congressional outreach
– Coast Guard Reauthorization
– DHS Appropriations
– House Homeland Security Committee chemical
security legislation
Robert R. Belair