Saturday, July 22, 2017

Trump Administration Updates Unified Agenda – DHS

This week the Trump Administration’s Office of Information and Regulatory Affairs (OIRA) published an Update to the Unified Agenda. This provides a look at the results of the review of on-going regulatory actions previously addressed by the Obama Administration and new regulatory initiatives started by the new administration. The last Obama update of the Unified Agenda (Fall 2016 Unified Agenda) took place in November, 2016.

Trump’s OIRA described the current Unified Agenda this way:

“The Agenda represents ongoing progress toward the goals of more effective and less burdensome regulation and includes the following developments:
“Agencies withdrew 469 actions proposed in the Fall 2016 Agenda;
“Agencies reconsidered 391 active actions by reclassifying them as long-term (282) and inactive (109), allowing for further careful review;
“Economically significant regulations fell to 58, or about 50 percent less than Fall 2016;
“For the first time, agencies will post and make public their list of "inactive" rules-providing notice to the public of regulations still being reviewed or considered.”

DHS Active Rulemaking


As usual, I have gone through the list of active DHS rulemaking activities and came up with a list that may be of specific interest to readers of this blog. Table 1 lists those rulemaking activities.

OS
Proposed Rule
Chemical Facility Anti-Terrorism Standards (CFATS)
USCG
Proposed Rule
Revision to Transportation Worker Identification Credential (TWIC) Requirements for Mariners
TSA
Proposed Rule
Surface Transportation Vulnerability Assessments and Security Plans
Table 1: Items on Current Unified Agenda

This is down from eight that were on the Fall 2016 Agenda. One (1601-AA56) action has been completed with the final rule being published last December. Four items (1601-AA76, 1625-AB94, 1652-AA55, and 1652-AA69) have been moved to the long-range portion of the Agenda (see below).

The pages for each of the rulemakings have been substantially changed in this update. This version does not include a regulatory history (listing of when various stages of the rulemaking process have been completed including a link to the Federal Register for each publication noted). The update also does not provide an expected date for the publication of the next stage in the rulemaking process. In the past those have proven to be grossly inadequate guesses, so there is really not much lost by not including that information.

Long-Term Actions


The long-term action section of the Unified Agenda contains the listing of on-going rulemaking efforts that the Administration does not expect to see reach the next publication stage for at least 12 months. The long-term action section for DHS is quite lengthy. The list includes the rulemakings shown in Table 2 that may be of specific interest to readers of this blog.


OS
Ammonium Nitrate Security Program
OS
Homeland Security Acquisition Regulation: Safeguarding of Controlled Unclassified Sensitive Information (HSAR Case 2015-001)
OS
Updates to Protected Critical Infrastructure Information
USCG
Amendments to Chemical Testing Requirements
USCG
2013 Liquid Chemical Categorization Updates
Maritime Security--Vessel Personnel Security Training
TSA
Protection of Sensitive Security Information
TSA
Security Training for Surface Transportation Employees
TSA
Vetting of Certain Surface Transportation Employees
Table 2: Long-Term Actions for DHS

This list is longer than the one found in the Fall 2016 Unified Agenda. I have already noted that three items were moved here from the active agenda. Additionally, the Trump Administration added a new rulemaking (1625-AC36) that has been placed on the long-term action list. Finally, OIRA removed a rulemaking (1625-AB21) that had actually been completed (final rule published) well prior to the publication of the Fall 2016 Unified Agenda. The Obama OIRA apparently kept it on the list because the effective date was not until 2018.

Inactive Items


It is interesting to see the Trump Administration introduce the concept of the ‘Inactive Items’ list; rulemakings that have dropped off the Unified Agenda, but are still in the working files of the agency involved and action could possibly be expected at some future date. This list is also odd in that it is a .PDF document rather than an HTML table.

There are four rulemakings on the DHS portion of the list that may be of specific interest to readers of this blog. I have included in the list below a link to the last time that the rulemaking showed up in the Unified Agenda. It is very clear that the administration officials took their mandate to identify such latent rulemakings very seriously.

• 1625-AA12 – USCG – Marine Transportation--Related Facility Response Plans for
Hazardous Substances (Fall 2013);
• 1625-AA13 – USCG – Tank Vessel Response Plans for Hazardous Substances (Fall 2013);
• 1652-AA16 – TSA – Transportation of Explosives from Canada to the United States Via Commercial Motor Vehicle and Railroad Carrier (Fall 2011)
• 1652-AA50 – TSA – Drivers Licensed by Canada or Mexico Transporting Hazardous Materials to and Within the United States (Fall 2015)

Commentary


While Trump vociferously campaigned on a stand against new regulations, this publication of the Unified Agenda update makes it clear that we can still expect to see regulatory actions being taken by this administration. In fact, with respect to those types of regulations that would be of specific interest here, there has been absolutely no indication of a reduction in the change in the number of regulatory actions being undertaken.


It is not entirely clear at this point that the one new rulemaking added to the Unified Agenda Long-Term Agenda in this update (1625-AC36) is really a new regulatory action initiated by the Trump Administration. This has been an on-going issue since the 2010 amendments to the Standards of Training, Certificate, and Watchkeeping Convention and Code, but this is the first time that it has been officially noted in the Unified Agenda.

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