DHS Chemical Security Agenda

As I noted in Monday’s blog, there wasn’t anything in the DHS Fall Regulatory Agenda printed in the Federal Register that dealt with chemical security issues and the OMB list published on Monday only included two items. That list expands significantly if you go to the www.RegInfo.gov web site and visit the Current Regulatory Plan page. There you can look at all ten pages worth of the rules currently under consideration at DHS. Parsing through that list you’ll find six rules that will be of interest to the chemical security community. Those rules are:

Secure Handling of Ammonium Nitrate Program, RIN 1601-AA52; Transportation Worker Identification Credential (TWIC), Card Reader Requirements, RIN 1625-AB21; Freight Railroads--Security Training of Employees, RIN 1652-AA57; Protection of Sensitive Security Information (SSI), RIN 1652-AA08; Freight Railroads--Vulnerability Assessment and Security Plan, RIN 1652-AA58; and Reporting of Security Issues, RIN 1652-AA66.

All of these rules, except the last one, were addressed in the previous Regulatory Agenda; all with projected action dates before 12-01-09. Only the final rule has had any concrete action taken on it since the previous agenda was published in May. Interestingly the railroad vulnerability assessment and security plan rule was previously included in the Administration’s Regulatory Plan; it has now apparently been removed from that plan. Added Review Requirements For those rules that are part of the Regulatory Plan (of these six rules, only the ammonium nitrate and security training rules are included) the Obama Administration has added some administrative requirements for internal documentation supporting the proposed rules. The responsible agencies had to supply the information for the following new fields in the RIN listings for the Current Regulatory Plan:

Overall Description of Deadline; Statement of Need; Summary of the Legal Basis; Anticipated Costs and Benefits; Alternatives; and Risks.

Two of these fields, description of deadline and legal basis, are really just restatements of already existing fields in the RIN file. But they were added by the Obama Administration as part of their effort to make regulatory jargon understandable to the general public. For example the legal authority for the security training rule (49 USC 114; PL 110-53, sec 1517) becomes “49 U.S.C. 114; section 1517 of Public Law 110-53, Implementing Recommendations of the 9/11 Commission Act of 2007 (Aug. 3, 2007; 121 Stat. 266)”. The remaining four fields are an attempt to document the needs that are being addressed, the cost benefit analysis supporting the regulatory scheme, the alternative methodologies that were examined during the development process and the risks that were addressed or avoided in the regulatory process. One would like to thing that these areas were being addressed all along, but now there will be some documentation supporting that assumption. There is an interesting disparity in the thoroughness with which these two agencies (NPPD and TSA) within DHS are addressing this documentation requirement. While neither agency has yet apparently completed an economic analysis, the two agencies take completely different tacks when addressing the ‘Anticipated Costs and Benefits’ documentation. TSA simply notes that an ‘economic analysis is under development’. NPPD, on the other hand, defines what classes of people will likely bear the costs, what categories of costs might be expected to be incurred and even note that the benefits will be hard to quantify because it will be “difficult to identify the particular risk reduction associated with the implementation of this rule”. More Regulatory Delays With the exception of the reporting security issues rule, all of these rules have been delayed since the publication of the May agenda. The new expected action dates for the rules are:

Secure Handling of Ammonium Nitrate Program, NPRM, 04/2010; Transportation Worker Identification Credential (TWIC), Card Reader Requirements, NPRM, TBD; Freight Railroads--Security Training of Employees, NPRM, 04/2010; Protection of Sensitive Security Information (SSI), next action TBD; Freight Railroads--Vulnerability Assessment and Security Plan, NPRM, TBD; and Reporting of Security Issues, to be determined.

Neither the DHS Fall Regulatory Agenda nor the OMB Fall Regulatory Agenda provides any explanation of the newly extended action dates; so much for regulatory transparency. Industry does pay attention to the progress of these rules because they will have an impact on the operations of covered industries. Failure to keep industry appraised of the reasons for delays in the regulatory process makes it harder for potentially affected industries to plan their future operations. On the ammonium nitrate regulation I understand that DHS originally intended to have the final rule in place by next year’s fertilizer application season. That is obviously not going to happen. I hope that the Department has been proactive in communicating this delay to the agricultural sector. Some fertilizer distributors have been concerned about ordering ammonium nitrate for next season without knowing what regulations might be put into place. They fear that the regulations described in the ANPRM will adversely affect their ammonium nitrate sales and don’t want to be stuck with un-sellable inventory. With the exception of the TSA security reporting rule, these potential regulations have been hanging over the heads of a wide range of industries for a number of years. Congressionally mandated deadlines have been routinely ignored. This can no longer be blamed on a Republican administration dragging its heels putting into place rules mandated by a Democratic Congress. One final comment on delays, I find it hard to explain why TSA is unable to set a date for the publication of the final rule for reporting security issues. The NPRM was fairly simple, requiring very little action on the part of industry. The comment period did just close on October 26th, but there were only two fairly brief comments posted to the www.Regulations.gov web site. I can see little justification for not having a final rule in place before May.