FISCAL NOTE
Date Requested: January 30, 2023
Time Requested: 01:01 PM |
| Agency: |
Fusion Center, WV Intelligence |
|---|
| CBD Number: |
Version: |
Bill Number: |
Resolution Number: |
| 2264 |
Introduced |
HB3157 |
|
|---|
| CBD Subject: |
Public Safety |
|---|
|
FUND(S):
General Rev
Sources of Revenue:
General Fund
Legislation creates:
Fiscal Note Summary
Effect this measure will have on costs and revenues of state government.
See below information
Fiscal Note Detail
| Effect of Proposal |
Fiscal Year |
2023
Increase/Decrease
(use"-") |
2024
Increase/Decrease
(use"-") |
Fiscal Year
(Upon Full
Implementation) |
| 1. Estmated Total Cost |
0 |
0 |
0 |
| Personal Services |
0 |
0 |
0 |
| Current Expenses |
0 |
0 |
0 |
| Repairs and Alterations |
0 |
0 |
0 |
| Assets |
0 |
0 |
0 |
| Other |
0 |
0 |
0 |
| 2. Estimated Total Revenues |
0 |
0 |
0 |
Explanation of above estimates (including long-range effect):
See information below
Memorandum
The 80 Fusion Centers across the United States represent a shared commitment and resources between multiple public safety agencies. Individually and collectively, the system is vital to the criminal justice and homeland security network established locally and nationally. They serve to integrate information from a multitude of public safety sources to prevent threats to citizen safety.
There are elements of HB 3157 that require the Fusion Center to violate state and federal law in some instances including 28 CFR Part 23, US. Code 18 1510, and WV State Code 61-5-17. For example, §15A-12-1b pertaining to reporting requirements for election related matters. Additionally, §15A-12-3 could require the closure of the Fusion Center for an inability to meet the requirements of the bill. The Fusion Center does not have the ability to “grant” security clearances for anybody. Security Clearances managed by the WVFC fall under a process tightly controlled by the US Department of Homeland Security Office of Intelligence and Analysis (DHS I&A). The West Virginia Fusion Center only has the ability to nominate individuals for national security clearances. If the nomination is accepted and the individual is found to support the DHS I&A mission, then they must undergo an extensive background investigation and that must be successfully adjudicated. This investigation and adjudication process can take up to 18 months or more to finalize for each clearance. Providing access to classified materials without the appropriate authorization and a valid right and need to know would potentially place the Fusion Center in violation of federal statutes including but not limited to 18 U.S. Code 798 & 1924, Presidential Executive Orders 12958 & 13526 would jeopardize the Fusion Center’s ability to operate.
Below are a few examples, however not an inclusive list, of areas of concern in HB3157:
15-A12-1 lines 11–15 require that the WVFC “exercise due diligence is ascertaining the motives of any federal agency,” the WVFC currently exercises due diligence by requiring the agency name, criminal investigative case number, and the agencies ORI number prior to collaborating or providing any collaboration related to criminal investigative support. Clarification and the defining of “due diligence” is needed.
15-A12-1 lines 17-18 “shall not allow a federal agency or contractor for a federal agency to work inside the Fusion Center or to remotely access Fusion Center assets or infrastructure absent a valid warrant from the U.S. District Court for the Southern District of West Virginia”. As written HB 3157 would not allow the Fusion Center to accept valid warrants from the U.S. District Court for the Northern District of West Virginia or any valid warrant from any U.S. District Court in the United States. This language also appears to contradict lines 3-6 of 15-A12-1 in establishing collaboration “among federal, state, and local agencies, as well as private sector persons, organizations, entities, or agencies, including, but not limited to, those with the primary purposes of homeland security, counter-terrorism, public safety, public protection.” This language also prohibits the Fusion Center from sending or allowing the attendance of any of our analysts to any analyst and other specialized training provided by DHS and other federal agencies. This will result in our analysts being insufficiently trained and not meeting the national standard as related to current trends in criminal activity and homeland security. The lack of this up to date knowledge will not allow the Fusion Center to fulfill its mission in protecting the citizens and the assets of the State of West Virginia as well as national security.
15-A-12-1 lines 21-22 the “Fusion Center is subject at all times and in all operations to the Joint Oversight Committee as set forth in §15A-12-3 of this code.” If the intent is that all operations at all times are subject to JOC oversight this will severely impact response times to critical incidents related to criminal and terrorist activity, public safety and, school safety. This would need additional clarification as to what threshold the WVFC would require to respond to a critical or public safety incident.
15-A12-1 lines 31 and the definition of “terrorism”. The striking of 6 U.S.C 485 and reference to 18 U.S. Code 2331. 18 US Code 2331 definition of terrorism has an international focus related to people and assets of the United States. The WVFC primary mission is the safety and security of the citizens of WV and the United States. Use of this code as the definition of the WVFC approach to the term "terrorism" will impede the FC response to a terrorist or public safety incident if there is not an international nexus. If the intent is to maintain this as the definition of terrorism the FC will operate under then it should also include WV Code 61-6-24 regarding terroristic threats and incidents.
15-A12-1 lines 48-50 related to the reporting of election fraud. This would potentially be in violation for state and federal code for interfering with an investigation. The JOC is a non LE entity and does not have a right to know as required under 28 CFR Part 23. Reporting directly to the WV Attorney General may be in violation of State Code Chapter 3-8-8i as it bypasses and prevents deconfliction of the constitutional elected office of the WV Secretary of State that has authority over elections.
15-A12-1 59-68 The referenced system "homeland secure information systems and networks" does not exist. Access to classified information is subject to the proper security clearance as well as a valid right and need to know. Information is classified at the federal level and subject to federal statutes. There is no state level classified information. We would be in violation of section 15A-12-2 lines 12-17 stating that we must be in accordance with all state and federal laws and statutes.
Given the Fusion Center’s centric role in the robust network of criminal justice and homeland security partners in providing a statewide public safety system, ceasing operations for violation of the requirements of this bill would cripple public safety. A highly trained and skilled workforce of 22 employees would lose employment and the impact would have a paralyzing effect on ongoing investigative assistance, prosecutions officer safety and a multitude of public safety initiatives, including illegal drugs and human trafficking, putting State and National Security interests at risk.
Information sharing is at the center of state and national security and serves to ensure agencies have all the necessary information to enhance public safety. The impact on restricting or limiting information sharing among authorized partnering agencies serves to create gaps in public safety and officer safety creating a significantly heightened risk for the public and only serves to diminish public safety.
Since March 17, 2008, the State of West Virginia has committed to significant investments in growing and developing the operations of the Fusion Center in order to help ensure residents and visitors have reasonable expectations of a safe place to visit, live and raise a family. Certain elements of this bill only serve to weaken that well-established structure and jeopardize the robust public safety system the state has developed.
Person submitting Fiscal Note: Bryan Arthur
Email Address: Bryan.D.Arthur@wv.gov