DHS recently updated the Chemical Security portion of its ‘Laws and Regulations’ web page. The new change adds a link to the Consolidated Appropriations Act of 2008. Section 534 of that bill modified the authorizing legislation (Section 550 of the 2007 Homeland Security Appropriations Act) for the CFATS regulations. That bill was passed last December so this update is right on-time.
As I noted in a blog posted after that bill was signed (see: “DHS and the Omnibus Spending Bill”) there were two chemical security related provisions included in that bill. One of those was included in Section 534 and it dealt with changes to the rules for federal preemption in the CFATS regulations. The other section (Section 889) dealt with adding rules for the control of Ammonium Nitrate.
Federal Preemption Rules for CFATS
The Section 550 revision included in the 2008 authorization bill added a sub-paragraph to the CFATS authorizing language. That sub-paragraph reads:
- “(h) This section shall not preclude or deny any right of any State or political subdivision thereof to adopt or enforce any regulation, requirement, or standard of performance with respect to chemical facility security that is more stringent than a regulation, requirement, or standard of performance issued under this section, or otherwise impair any right or jurisdiction of any State with respect to chemical facilities within that State, unless there is anactual conflict between this section and the law of that State.”
To date we have not seen an NPRM (Notice of Proposed Rule Making) that would implement this requirement. Of course there is no actual requirement for such change as long as DHS enforces the pre-emption provisions of 6 CFR part 27 in accordance with the law that authorizes those rules. It could, however, cause some confusion as we get further removed from the passage of such law and people forget that it exists.
Secure Handling of Ammonium Nitrate
The Section 889 provisions, on the other hand, do provide timetables for the implementation of regulations to control the sale and transfer of ammonium nitrate. There are three specific time limits in that bill:
- Establish (within 90 days, March 25, 2008) a threshold concentration of ammonium nitrate in a mixture,
- Prepare (within 6 months, June 26, 2008) a proposed rule regulating the sale and transfer of ammonium nitrate,
- Within 1 year (December 26, 2008) issue a final rule implementing the requirements of this section.
The first two have passed without apparent action. It could be argued that the concentrations established in Appendix A to 6 CFR part 27 (published before this bill was passed) meets the first requirement. We’ll let that one slide.
The second requirement has not been met and it is almost two months overdue. Of course the requirements that Congress set down for that legislation were fairly detailed and complex. I thought that the six month requirement for draft regulations was kind of tight, especially since Congress prohibited DHS from preempting any existing federal rules dealing with ammonia nitrate. The research and coordination requirements to keep that requirement intact could take six months.
When I asked my contact at DHS about the status of this draft regulation I was curtly informed that the work was progressing. Well, no one likes to be reminded that they are missing deadlines (even unrealistic ones). And, of course, the implementation of Top-Screens and SVA’s has not interfered with work on these rules. In any case, DHS hopes to publish this draft regulation in the near future.
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