Industry Challenges Personnel Surety Program

The U.S. Department of Homeland Security (DHS) has issued a “Personnel Surety Program (PSP)” Information Collection Request as part of the Chemical Facility Anti-Terrorism Standards (CFATS) regulations. The comment period ended on Thursday, May 13. The Agribusiness Security Working Group (ASWG), comprised of the Agricultural Retailers Association (ARA), The Fertilizer Institute (TFI) and CropLife America (CLA), submitted joint comments to DHS raising concerns with the severe unintended consequences and significant burden created by the program without providing additional security benefits or practical utility.

The ASWG has encouraged the industry to provide comments to DHS if their facility is impacted by the CFATS program and the agency’s PSP. The PSP will require all CFATS facilities to submit information about facility personnel and, as appropriate, “unescorted visitors” with access to restricted areas or critical assets at those facilities. As defined by DHS regulations this would likely cause all employees at agricultural retail facilities regulated by CFATS to have their names submitted to DHS for vetting by the Federal Government against the Terrorist Screening Database (TSDB). The TSDB is a consolidated and integrated terrorist watchlist maintained by the Federal Government to identify known or suspected terrorists (i.e. individuals with terrorist ties).

The ASWG has identified the following areas as issues that need to be addressed by DHS:

  • Conflicts with Congressional Intent: When Congress authorized DHS to establish the CFATS program, it explicitly directed the agency to “establish Risk-Based Performance Standards (RBPS) for securing chemical facilities.” Performance standards, rather than prescriptive standards issued by the Federal Government, provide facilities the flexibility to address their own unique security challenges. DHS should not issue prescriptive requirements for how a facility is to achieve personnel surety RBPS #12.
  • Redundant Reporting and Unnecessary Burden: Most if not all Agribusinesses (manufacturers, distributors, retailers) have a significant number of employees (i.e. facility personnel) or contractors that hold a valid Commercial Drivers License Hazmat Endorsement (CDL HME), Transportation Workers Identification Credential (TWIC), or other federally issued credentials to satisfy a CFATS facility’s compliance with the personnel surety requirements as described in RBPS # 12. In the CFATS Interim Final Rule issued in April 2007, it states that “to minimize redundant background checks of workers, DHS agrees that a person who has successfully undergone a security threat assessment conducted by DHS and is in possession of a valid DHS credential such as a TWIC, HME, NEXUS, or FAST, will not need to undergo additional vetting by DHS. We agree with this statement and believe it is an unnecessary use of time and resources for a facility to have to collect and resubmit employee or contractor information for those who already hold valid DHS credentials.
  • Restricted Areas/Critical Assets and Determination of “Unescorted Visitor”: At agricultural retail facilities, agricultural chemicals listed as a chemical of interest (COI), such as anhydrous ammonia, ammonium nitrate and aluminum phosphide are stored and handled on site. All employees at these facilities will be in a restricted area or near a critical asset as part of the regular work day during the busy spring planting or fall harvesting seasons. This will require all facility personnel to hold a valid DHS credential or be vetted by DHS against the TSDB. During these busy times of the year, farmer customers will enter the facility for pick up of farm supplies, which could include a COI. From the DHS PSP proposal it is not clear what is considered to be an “unescorted visitor” and subject to the DHS background check requirement. All “escorted visitors” are not required to have their names submitted to DHS for vetting in the TSDB. We recommend DHS define a farmer customer or transport carrier that is in “line of site” of authorized facility personnel within the restricted area or near a critical asset to be considered as “escorted” and thus not subject to the DHS PSP requirements.

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