Ammonium Nitrate Public Meetings Notice

This week the Department of Homeland Security (DHS) announced a series of public meetings to consult with the public regarding its recently published Ammonium Nitrate Notice of Proposed Rulemaking (NPRM). DHS is seeking input on the issues raised in the NPRM and in this notice. Each meeting is open to the public and is expected to last approximately four hours.

A transcript of each of these public meetings will be provided in the electronic docket for the Ammonium Nitrate Security Program rulemaking (docket number DHS–2008–0076) available at http://www.regulations.gov.

4th Annual Homeland Security Regulatory Update for the Chemical & Petrochemical Industry

The Roberts Law Group is pleased to announce its 4th Annual Homeland Security Regulatory Update for the Chemical & Petrochemical Industry. The event will be held on November 1, 2011 in Houston, Texas, and will address the latest security compliance issues and challenges. Speakers include regulatory experts, industry leaders, and government officials. Click Here for More Information or Click Here to Register.

MTSA Update

In July 2011, the Transportation Security Administration began using a new version of the Transportation Worker Identification Credential (TWIC). Other than a change in version number and date on the back of the card, there are no visible differences between the new card and the previous version. However, facility and vessel security personnel should be aware of this change in order to assist in the recognition of authentic TWICs and in the detection of fraudulent TWICs.

The MTSA Policy Advisory Council (PAC), which issues period bulletins designed to assist MTSA-regulated facilities and vessels with the implementation of the MTSA program, published two new PAC decisions in July 2011: (1) PAC 02-11: Waiving Facilities that Transfer Certain Low Risk Commodities; and (2) PAC 05-03 Change 1: Applying MTSA Regulations to Facilities Having Periods of Variable Risk. Both are available on the Coast Guard’s Homeport website.

Protected Critical Infrastructure Information (PCII) Stakeholder Survey New ICR

The Department of Homeland Security (DHS) is soliciting comments concerning the Protected Critical Infrastructure Information (PCII) Stakeholder Survey. The PCII Program was created by Congress in 2002 to encourage voluntary information sharing by owners and operators of critical infrastructure and protected systems. This survey is designed to gather information from PCII Officers that can be used to improve these relationships and to maximize the value that the PCII Program is offering to its federal, state, and local government users.

DHS previously published this Information Collection Request (ICR) in the Federal Register on March 31, 2011, for a 60-day public comment period. The purpose of this notice is to allow an additional 30 days for public comments. Comments will be accepted until September 14, 2011.

DHS Issues Ammonium Nitrate NPRM

This week, the Department of Homeland Security (DHS) published a Notice of Proposed Rulemaking (NPRM) that would regulate the sale and transfer of ammonium nitrate.

Under the NPRM, certain ammonium nitrate sellers and prospective ammonium nitrate purchasers must apply for ammonium nitrate registration numbers from DHS in order to sell, transfer, and/or purchase the chemical. DHS will use the Terrorist Screening Database to vet each applicant, and must generally issue an ammonium nitrate registration number or deny the applicant’s registration within 72 hours of receipt. At the point of sale, ammonium nitrate sellers will be required to verify each potential ammonium nitrate purchaser’s identity and registration before completing the sale.

Ammonium nitrate facilities will be required to keep records of sales or transfers of ammonium nitrate for at least two years after each transaction. The NPRM defines an ammonium nitrate facility as “[a]ny person or entity that produces, sells, or otherwise transfers ownership of, or provides applications services for, ammonium nitrate.” The NPRM will also require ammonium nitrate sellers to report the theft or loss of ammonium nitrate to Federal authorities within one calendar day of discovery of the theft or loss.

In order to ensure compliance, DHS will conduct on-site and remote regulatory compliance inspections and audits of ammonium nitrate facilities’ records. DHS may assess a civil penalty of up to $50,000 per violation for non-compliance with the rule.

DHS Issues Report Warning of Insider Threats to Utilities

This week, the U.S. Department of Homeland Security (DHS) issued a report warning major utilities such as chemical plants and oil refineries that “violent extremists” have obtained insider positions and might use those positions to conduct physical and cyber attacks on behalf of Al Qaeda.

Though DHS has said that it does not have any specific threats against U.S. utilities, the report indicates that violent extremists have already been able to obtain insider positions at chemical and oil refineries, and have tried to "solicit" employees in the utility sector. The report cites an attempted insider sabotage (not linked to Al Qaeda) at a water treatment plant in Arizona as evidence of American infrastructure vulnerabilities. DHS has said that it plans to work with its partners in the utility sector and at the state and local levels to protect utility facilities.

TSA Publishes Pipeline Security ICR Renewal Notice

Last week the Transportation Security Administration (TSA) published a 60-day notice in the Federal Register (76 FR 35229-35230) of its intention to request OMB approval for the renewal and expansion of its Information Collection Request (ICR) for continued authority to collect “critical facility” information on the top 100 “most critical” pipelines.

Comments may be submitted by email to TSAPRA@dhs.gov by August 15, 2011.

This week the Department of Homeland Security (DHS) published three notices in the Federal Register describing the requirements for the Chemical Facility Anti-Terrorism Standards (CFATS) Personnel Surety Program (PSP).

• Reply to Comments From the 30-day CFATS Personal Surety Program Information Collection Request (ICR) (76 FR 34720-34732; ICR Notice)

• Notice of the Establishment of a Privacy Act System of Records Supporting the CFATS Personal Surety Program (76 FR 34732-34736; Privacy Act Notice)

• Notice of Proposed Rule Making (NPRM) Proposing a Privacy Act Exemption for the CFATS Personal Surety Program System of Records (76 FR 34616-34618; Privacy Act NPRM)

These notices follow the 60-day ICR notice published on June 10th, 2009 (74 FR 27555) and the 30-day ICR notice published on April 13th, 2010 (75 FR 18850).

GAO Issues Report on the Transportation Worker Identification Credential (TWIC) Program

This month, the Government Accountability Office (GAO) released a report identifying “[i]nternal control weaknesses governing the enrollment, background checking, and use of TWIC…” that it found may “…potentially limit the program’s ability to provide reasonable assurance that access to secure areas of Maritime Transportation Security Act (MTSA)-regulated facilities is restricted to qualified individuals.”

Specifically, the GAO indicated that internal controls in the enrollment and background checking processes are not designed to provide reasonable assurance that:

(1) Only qualified individuals can acquire TWICs;
(2) Adjudicators follow a process with clear criteria for applying discretionary authority when applicants are found to have extensive criminal convictions; or
(3) Once issued a TWIC, TWIC-holders have maintained their eligibility.

In making this finding, GAO investigators conducted covert tests at several selected ports and were successful in gaining access “…using counterfeit TWICs, authentic TWICs acquired through fraudulent means, and false business cases (i.e., reason for requesting access)."

The report suggests that the Department of Homeland Security conduct a control assessment of the TWIC program’s processes to address these existing weaknesses and better achieve the program’s objectives.

Subcommittee on Environment and the Economy Passes H.R. 908

On May 4, 2011, the House Energy and Commerce Committee’s Subcommittee on Environment and the Economy passed H.R. 908, the Full Implementation of the Chemical Facility Anti-Terrorism Standards Act of 2011, by a voice vote.

The legislation would extend the Chemical Facility Anti-Terrorism Standards, in its current form, through September 30, 2017. The bill now moves to the full Committee for consideration.