In the News
- TSA says Secure Flight Will be Operational in 2009
DHS recently announced it will assume the responsibility of matching airline passengers against terrorist watch lists. Currently, airlines check passenger names against the lists. Kip Hawley, head of the Transportation Security Administration, told the House Homeland Security Transportation Security Subcommittee that the new “Secure Flight” airline passenger screening program will be ready in January 2009.
Secure Flight had been delayed by Congress until certain privacy and technical conditions were met. Hawley said TSA had made significant progress toward meeting those conditions. The program does not yet have a Final Rule governing its use, but Hawley said he expect a rule to be finalized by November.
- Virtual Fence for Mexico Border To Be Delayed
The U.S. Customs and Border Protection is delaying plans for a virtual fence to be built by Boeing Co. along the Mexico border. CBP will focus on building a physical fence instead. Both the virtual and physical fences are part of the Secure Border Initiative, launched in 2005.
Reports indicate that Boeing has struggled to overcome technical problems on its virtual fence, part of a contract called SBInet that also includes physical fences. The virtual-fence system was first tested on a 28-mile stretch that was originally planned to be ready more than a year ago; it isn't operational.
- DHS and DOE Team To Reduce Dirty-Bomb Risk
Under a new program funded by DHS’s Domestic Nuclear Detection Office and the Department of Energy’s National Nuclear Safety Administration, 1,300 machines in hospitals and other medical facilities will be fitted with security measures to make theft of cesium chloride more difficult.
The cesium contained in just one blood irradiation machine would be enough for a terrorist to make a radioactive bomb, according to DHS.
- DHS to Scan Some Incoming Air Cargo for Nuclear Material
DHS will put all incoming air cargo through radiation detectors at some of the nation's busiest airports to prevent terrorists from smuggling radioactive bombs into the U.S. The air cargo will be driven through Radiation Portal Monitors at Dulles International Airport and four other major airports by the end of the year, according to DHS. DHS currently plans to have detectors at the nation’s 30 busiest airports.
The new initiative aims to close what the 9/11 Commission's final report called a major security vulnerability.
- House Committee: DHS Behind in Providing 'Open Source' Intelligence to State and Locals
The House Committee on Homeland Security recently released a report criticizing DHS's open source – or publicly available -- intelligence efforts. The Homeland Security Act of 2002 requires DHS, whenever possible, to make available unclassified reports and analyses to law enforcement partners across the country. To reinforce that requirement, the House in July passed the Homeland Security Open Source Information Enhancement Act, requiring the Secretary of Homeland Security to establish an open source program. Despite this, "DHS' efforts have lagged behind the rest of the Federal government," according to the report.
- Two Senate Bills Proposed to Boost Cybersecurity
Sen. Tom Carper (D-Del.) has introduced the Federal Information Security Management Act of 2008, which would require agencies to prove they can properly secure sensitive information and people’s personal data. The bill would extend to DHS the authority to test other agencies’ cybersecurity systems.
Also, Sen. Norm Coleman (R-Minn.) has introduced the State Cyber Security Protection Act. The bill would establish a pilot program within DHS to provide money to strengthen cybersecurity within state governments. The bill would authorize $25 million a year for two years.
- US Eliminates Visa Requirements for 7 Countries
Latvia, Lithuania, Estonia, Hungary, the Czech Republic, Slovakia and South Korea will be added to the U.S. visa waiver program before the end of the year. President Bush said all of the countries added to the list agreed to take specific steps, such as instituting tamper-proof, biometric passports that are difficult to forge. President Bush indicated support for efforts by Bulgaria, Cyprus, Greece, Malta, Poland and Romania to join the program.
The Visa Waiver Program now includes 34 countries. E-Verify Extended to March 2009
- DHS Issues First “U” Visas
U.S. Citizenship and Immigration Services (CIS) recently issued the first “U” visas for immigrant victims of crime and domestic violence. Congress passed legislation authorizing the issuance of such visas almost 8 years ago, but no written regulations existed on how to apply for the visa existed until recently. CIS had been granting “interim relief” for hundred of immigrants in the form of pending U visa applications.
Congress passed the legislation to encourage immigrant victims of crime and domestic violence to report crimes without worrying about their immigration status.
- Department of Justice Proposes Inclusion of Terrorism Info in Nation’s Criminal Intelligence Systems
According to a proposed DOJ rule, state and local police forces would for the first time be required to gather and include terrorism-related information in their federally funded criminal intelligence data systems. Currently, criminal intelligence systems store and share investigative data about individuals or organizations that authorities reasonably suspect participate in criminal activity. The proposed rule amendments would define terrorism and its material support as criminal activities about which state and local law enforcement should gather and maintain intelligence.
The rule also would extend the length of time that the systems contain information without review from five to ten years. Justice said the proposed change is necessary because new data mining technologies have the potential to reveal useful intelligence from the data.
- Group of Ex-Officials Says WMD Threat Remains Real
The bipartisan Partnership for a Secure America has said in a new report that the U.S. government has made little progress in working to prevent catastrophic nuclear, biological or chemical attacks on U.S. soil. The group urged the next president to appoint a cabinet-level coordinator with the authority to direct counterproliferation plans, programs and funding. The panel was co-chaired by Lee H. Hamilton (D), former congressman and vice chairman of the 9/11 Commission, and Warren Rudman (R), former senator and co-chairman of a 2001 blue-ribbon commission on terrorism.
- Cargo Screening Deadline Nears for Passenger Aircraft
U.S. companies have six months to meet a Congressional mandate to screen half of all cargo loaded on passenger aircraft. The mandate is part of the 9/11 Commission Act of 2007. Southwest Airlines, for example, is spending several million dollars for detection equipment to screen cargo destined for the carrier's Boeing 737s. Other airlines are upgrading screening equipment as well. The mandate also affects shippers and freight forwarders, and TSA is working with such companies on a prescreening program to prevent a log jam of unscreened cargo at airports. DHS has not yet made clear whether the law applies to inbound cargo and to non-U.S. carriers that operate across the U.S. border.
- GSA Opposes Post-9/11 Safety Requirements for Skyscrapers
The Government Services Administration has joined members of the real estate and building industries in trying to repeal stronger building and safety requirements for newly-built skyscrapers. The requirements were added to the U.S.’s most widely used building code last year. The new provisions, which include requiring tall office buildings to have more robust fireproofing and an extra emergency stairwell, were enacted following a federal study into the collapse of the twin towers at the World Trade Center. Opponents say the new requirements will be too expensive to meet. Industry officials estimate the fireproofing and stairwell requirements alone could cost real estate developers $13 million for a 42-story office building, as well as perhaps $600,000 a year in lost rent because of decreased floor space.
- DHS Pilots Program to Send Hurricane Alerts via Myspace
DHS has partnered with the online social network Myspace to spread news on hurricanes. As Hurricane Gustav approached the Gulf Coast, DHS officials worked with Myspace to build a disaster alert system for users of the popular social networking site. Soon a software application that automatically feeds hurricane information from federal disaster agencies to MySpace users was launched. MySpace users can download an application that links to federal information including finding dislocated victims, help in affected areas, and online tracking of coming storms.
- Federal Contractors Now Required to Use E-Verify
Executive Order 12989 was recently amended to require federal government contractors to use electronic employment verification. The new executive order reads in part, “Executive departments and agencies that enter into contracts shall require, as a condition of each contract, that the contractor agree to use an electronic employment eligibility verification system designated by the Secretary of Homeland Security to verify the employment eligibility of: (i) all persons hired during the contract term by the contractor to perform employment duties within the United States; and (ii) all persons assigned by the contractor to perform work within the United States on the Federal contract.”
The executive order states that because of the enforcement policy of the United States, contractors that employ illegal aliens cannot rely on the continuing availability and service of those illegal workers, and such contractors inevitably will have a less stable and less dependable workforce than contractors that do not employ such persons.
- 7,000 U.S. Businesses Instructed by DHS to Secure Chemical Facilities
DHS is in the process of notifying approximately 7,000 businesses that the Department considers them high-risk terrorist targets because they possess large amounts of certain chemicals. The sites include major chemical plants, universities, manufacturing facilities, food processing centers and hospitals. Such high-priority sites are required by DHS to complete vulnerability assessments and site security plans that DHS will in turn evaluate as part of its regulatory authority.
DHS inspectors are expected to visit the highest risk chemical facilities every year to measure their compliance with requisite enhanced security measures. If the facilities fail to comply, the sites face large fines and may be shut down until they meet federal security standards.
Earlier this year, 32,000 businesses possessing specified amounts of chemicals were required to complete an online screening survey that DHS used to determine which facilities should be among those subject to DHS’ security requirements. That list was pared down to 7,000. These businesses must now prepare detailed security vulnerability assessments, and DHS will place them into four security categories, based on the identified risk threat .
- Continued Threat of Terror Attack Driving Homeland Security Market
According to the research service Frost and Sullivan, the threat of terror attacks is the most potent driver for the homeland security market. The DHS budget has continued its steady growth year after year, tripling in recent years. Overall, the total DHS budget for 2008 reached over $47 billion and is likely to exceed $56 billion by 2011, according to Frost and Sullivan. Organizations such as the Homeland Security Advanced Research Projects Agency (HSARPA) are receiving increased funding from the federal government, as many currently available technologies are seen as not meeting changing demands.
The research service also has found that DHS demand for integrated solutions has reached an all-time high. Government agencies and private sector security firms are increasingly opting for comprehensive and integrated systems over stand-alone products. DHS is demanding integrated capabilities in many current programs, and products that are proprietary or have nonstandard data formats are losing the ability to compete with those that can easily integrate into larger solutions. According to Frost and Sullivan, while integration is expected to further the growth of the market, vendors with products that are difficult to integrate into nonstandard formats are likely to lose out.
- DHS Researches Anti-missile Project for Flight Zones
U.S. researchers are exploring the use of laser or infrared systems to protect whole flight zones from attack by shoulder-launched missiles, according to Dr. Starnes Walker, Director of Research at the U.S. Department of Homeland Security's Science and Technology Directorate. The official said tests have shown that high-altitude platforms could detect the launch of such missiles. Still, there are huge scientific challenges in diverting them off-target.
Dr. Walker said that while there are no imminent solutions, benefits could be huge because current technology to protect individual planes against the missiles is hugely expensive.
- New CFIUS Regulations Issued
The U.S. Treasury Department issued proposed regulations that implement the Foreign Investment and National Security Act of 2007 (FINSA). The proposed regulations provide an update to regulations issued in 1991 that govern the Committee on Foreign Investment in the United States (CFIUS) and its process for conducting national security review of certain foreign investments in U.S. businesses. They reflect reforms made to the CFIUS process by FINSA and the CFIUS executive order issued by President Bush on January 23 of this year.
Most notably, the new regulations (i) provide for enhanced scrutiny of any acquisition involving a foreign government or an entity controlled by a foreign government, and (ii) substantially increase the scope of “covered transactions” that are subject to CFUIS review. In addition to defense and certain technology companies, any business operating in a sector that is important to the U.S. economy or infrastructure (transportation, energy, aerospace, financial, and telecommunications companies for example) may now be deemed critical to national security and be subject to the CFIUS process. The U.S. Department of Homeland Security will play a leadership role within the CFIUS review process with respect to transactions impacting U.S. critical infrastructure.
- Final Rule Announced for Western Hemisphere Travel Initiative
The U.S. Department of Homeland Security (DHS) and the U.S. State Department announced the release of a final rule that requires travelers to present a passport or other secure document confirming citizenship and identity for all land and sea travel into the United States. The Western Hemisphere Travel Initiative (WHTI) rule establishes new document requirements for travelers entering the United States who were previously exempt, including citizens of the U.S., Canada and Bermuda. These document requirements will be effective June 1, 2009.
At the same time, DHS designated the Washington State Enhanced Driver ’s License (EDL) as WHTI-compliant document. Many cross-border travelers already have WHTI-compliant documents such as a Passport or a Trusted Traveler Card (NEXUS, SENTRI, and FAST), or a Washington State EDL. The U.S. State Department is currently accepting applications for the new Passport Cards, and additional U.S. states and Canadian provinces are expected to issue EDLs in the next several months.
- Hazmat Rail Safety Rule Issued
A new U.S. Department of Transportation rule requires freight railroad to use the “safest and most secure routes” when hauling toxic chemicals and other hazardous materials. The regulation aims to reduce the risk of derailments and terrorist attacks near populated areas. Railroads must determine whether it would be safer to send trains to alternative routes around the nation's largest cities. Beginning on June 1, 2008, the rule requires railroads to conduct a safety and security risk analysis of its primary route and any alternative routes over which it has authority to operate. The analysis must consider and a minimum of 27 risk factors including trip length, volume and type of hazmat being moved, existing safety measures along the route, and population density. Routing decisions must take effect no later than September 2009.
- President Bush requests $50.5 billion for DHS 2009 budget, a 6.8% increase over FY 08
President Bush’s fiscal year 2009 budget request for the Department of Homeland Security calls for $50.5 billion in funding, which is an increase of 6.8% over the 2008 fiscal year level and a 62% increase since the department’s creation nearly five years ago.
Highlights of the President’s FY 09 budget request for DHS include:
- An increase of $442.4 million to hire and train 2,200 new Border Patrol Agents.
- $100 million for E-Verify, the USCIS automated system that allows employers to verify employment eligibility of citizen and non-citizen new hires.
- $1.3 billion for Department-wide efforts to counter IED threats, including $1.1 billion in funding for TSA explosives detection technology at airports.
- $334.2 million for Domestic Nuclear Detection Office R&D programs furthering development of the nuclear detection architecture.
- An increase of $13 million for National Protection and Programs Directorate’s chemical security compliance program.
- $293.5 million for the National Cyber Security Division to deploy the EINSTEIN system on Federal networks to protect against cyber threats.
- An increase of $43 million to support Science & Technology laboratory facilities to include initial operations of the National Bio-defense Analysis and Countermeasures Center.
- Federal Court Denies Challenge to New DHS Chemical Security Regulations
On January 20, 2008, the United States District Court for the District of Columbia dismissed the first legal challenge to the new U.S. Department of Homeland Security chemical security regulations (see attached opinion). DHS’s recently issued Chemical Facility Anti-Terrorism Standards (“CFATS”) final rules establish risk-based performance standards for chemical facilities and require, among other things, vulnerability assessments and site security plans for chemical facilities. The rules also make clear that DHS has the authority to levy civil penalties for non compliance, as well as mandate that certain violators cease plant operations. In National Propane Gas Association v. DHS, the propane gas industry sought an injunction preventing implementation and enforcement of the CFATS rules on the grounds that they were “arbitrary, capricious and unlawful.” Judge Roberts dismissed the challenge and found that the propane industry, in this instance, “failed to show how audits and inspections, or orders to cease operations, could qualify as irreparable harm.”
- DHS Announces Release of Application Guidance for Over $3 Billion in Grant Programs
DHS recently released application guidance for 14 federal grant programs whose collective purpose is to strengthen prevention, protection, response and recovery capabilities at all levels of government. The National Response Framework FY 2008 grant programs provide $376.3 million more than last year to enhance the nation’s ability to prevent, protect against, respond to and recover from terrorist attacks, major disasters and other emergencies. Secretary Chertoff called on applicants to prioritize preparedness planning and programs to counter IED threats.
The grant program allocations for 2008 are as follows:
- Homeland Security Grant Program (HSGP) - $1.69 billion.
- Infrastructure Protection Program (IPP) - $852.4 million.
- Emergency Management Performance Grants (EMPG) – $291.4 million to support state and local emergency management programs.
- Operation Stonegarden Grants (OPSG) - $60 million to land border states to enhance law enforcement border security operations.
- Regional Catastrophic Preparedness Grant Program (RCPGP) – $60 million to bolster catastrophic incident preparedness in designated UASI jurisdictions.
- REAL ID Systems Integration and Data Verification Grant Program – $48.5 million to states for cooperative efforts to enhance integrity of driver’s licenses.
- UASI Nonprofit Security Grant Program (NSGP) - $15 million to support target-hardening activities by nonprofit organizations at high risk of terrorist attack.
IPP applications are due to the department no later than March 17, 2008, and HSGP applications are due May 1, 2008.
- Klitenic Robertson Principals Moderated Third Annual ABA Homeland Security Program, January 17-18 2008
Jason Klitenic and Mark Robertson served as moderators for the American Bar Association’s Third Annual Homeland Security Law Institute. The program, which took place January 17 and 18, 2008 in Washington, D.C., featured a number of current and former government officials, and key industry representatives, who addressed a variety of regulatory, enforcement and public policy issues integral to today’s homeland security arena. Keynote speakers included former Homeland Security Secretary Tom Ridge and former United States Attorney General John Ashcroft.
- Former DHS Honors Attorney Jeffrey Kaliel Joins Klitenic Robertson PLLC
Jeffrey Kaliel has joined Klitenic Robertson PLLC as an Associate. Jeff most recently served as an Attorney-Advisor in the U.S. Department of Homeland Security’s Office of the General Counsel and was a member of the Honors Program there. While at DHS, he handled an array of regulatory, litigation and policy matters, including those regarding the SAFETY Act, immigration, national security, information sharing and data privacy. In addition to his tenure at DHS, Jeff has also served as a Special Assistant United States Attorney in the Southern District of California, where he prosecuted federal drug and human trafficking crimes. Aside from his civilian experience, Jeff is a former U.S. Army Psychological Operations soldier, having previously served in Iraq. His military training includes Airborne, Mountain Warfare and SERE certification. Jeff received his J.D. from Yale Law School and B.A. summa cum laude from Amherst College.
- Mark Robertson Discusses DHS Chemical Security Regulations in Marsh Inc. Sponsored Webcast
At the invitation of Marsh Inc., a leading insurance broker and risk advisor, Mark Robertson recently discussed the DHS chemical security regulations in a Webcast entitled "Chemical Industry Security Risks." The Marsh Webcast aired November 6, 2007 and was designed for businesses in the chemical and pharmaceutical industries, laboratories, hospitals, universities, and companies that store certain DHS-identified "Chemicals of Interest." Other Webcast panelists included Fabrice Lebourgeois, leader of Marsh's Chemicals Practice; Neal Drawas, managing director with Marsh's Health Safety & Environment Practice; Larry Stanton, acting director of the DHS Chemical Security Program; Thomas Jenks, managing director with Kroll's Security Group; and Scott Weber, a partner with Patton Boggs. An archived replay of the Marsh Webcast may be accessed by clicking here.
