Thursday, November 12, 2009
Coordination of Security Programs
I was reading the Roberts Law Group blog yesterday about the MTSA provisions of HR 2868 and it struck me that the committee staff over at the House Homeland Security Committee missed a couple of other security regulations that could affect facilities covered under this legislation that might also require coordination between the regulation writers at the Office of Infrastructure Protection and other Federal agencies. If the legislation needs to require formal coordination between the Coast Guard and IP then it should also require similar coordination with these other Federal Agencies. For example the Transportation Security Administration (TSA) regulates (49 CFR 1580) facilities that ship and receive rail security-sensitive materials (including poison inhalation hazard chemicals like chlorine and anhydrous ammonia). There are overlaps between those regulations and the requirements of HR 2868 in all three titles. To avoid conflicts in those overlapping requirements there will need to be coordination between TSA and IP. Duplication of training requirements should also be addressed. There are security training requirements in the previously mentioned TSA regulations, but the PHMSA also has security training requirements in their hazmat shipping regulations (49 CFR 172.704). These overlapping training requirements should also be addressed with appropriate interagency coordination mandates. PHMSA also requires (49 CFR 172.800) facilities that ship specified hazardous materials by truck must develop security plans that address personnel surety and security of materials being prepared for shipment. Both areas overlap requirements of Title 1 of HR 2868. Again, coordination should probably be required. NOTE: The PHMSA regulations do allow that ‘other’ security requirements “may be used to satisfy the requirements” of their regulations “provided such security plans address the requirements specified” (49 CFR 172.804 for example), but that does not necessarily ensure lack of conflict. Only specific coordination of requirements will limit those legal conflicts. There are likely other regulations that include security provisions that overlap with the provisions of HR 2868. While there are no requirements that Congress write laws that do not conflict with existing regulations, it certainly makes it easier for the regulating agencies if Congress addresses these conflicts in the legislative process so the agencies don’t have to worry about it in the regulatory process.