DHS Spring Regulatory Agenda

This week DHS, along with the rest of the Executive Branch, published their Spring 2010 Regulatory Agenda. The Flexibility Agenda was published in Monday’s Federal Register and the complete agenda was published on the RegInfo.gov web site. The Flexibility Agenda is required to include those items “which (are) likely to have a significant economic impact on a substantial number of small entities” (75 FR 21806). Interestingly, nothing on that 'flexible' agenda is of specific interest to the chemical security community. BTW, the full explanation of the Spring Regulatory Agenda can be found under the Regulatory Information Service Center listing in the Federal Register. Chemical Security Agenda I have identified seven items on the DHS Spring Regulatory Agenda that are of likely interest to the chemical security community. Those items are: Secure Handling of Ammonium Nitrate Program Maritime Security (MTSA II) Revision of LNG and LHG Waterfront Facility General Requirements Transportation Worker Identification Credential (TWIC); Card Reader Requirements Freight Railroads--Security Training of Employees Freight Railroads--Vulnerability Assessment and Security Plan Reporting of Security Issues I discussed six of these items last December when the Fall Agenda was published. The new item is the second item, the MTSA II entry. According to the summary for that agenda item this rule addresses proposed updates to the TSA regulations:

“The Coast Guard proposes certain additions, changes, and amendments to 33 CFR, subchapter H. The proposed changes would enhance the security of our nation's ports, vessels, facilities, and Outer Continental Shelf facilities and incorporate requirements from legislation implemented since the original publication of these regulations in 2003. “

One item missing from my current list that was included in my December blog is the Protection of Sensitive Security Information (SSI), RIN 1652-AA08. This item was implemented as an ‘interim final rule’ back in June of 2004. The last Fall Agenda carried its final action as ‘To Be Determined’. That is still the listed final action so there is no real reason for me to continue to track it. Regulatory Timing Slips Once again, DHS has let the projected time for the completion of the next step in the regulatory process slip for four of the seven rules. It would probably have been seven for seven except that one of the rules listed is new and the other two never did have projected dates that could slip, they were just TBD. The dates that were provided are listed below. Of those in the list all but two are significantly past the date that Congress mandated in the authorizing legislation to have the regulations in place. Neither the MTSA II rule nor the LNG rule have been mandated by Congress.

Ammonium Nitrate Program – NPRM 07-2010 Maritime Security (MTSA II) – NPRM 11-2010 LNG and LHG Waterfront Requirements – Final Rule 08-2010 TWIC; Card Reader Requirements – NPRM 08-2011 Freight Railroads--Security Training – NPRM 11-2010

DHS has provided no public explanation for any of these delays. I’m pretty sure that the Coast Guard is being held up on the TWIC rule by the pending results of the various field trials of the TWIC Readers. I have no idea why ISCD has yet to complete their overdue work on the Ammonium Nitrate rules; for almost two years now they have been ‘just months’ away from completion. TSA has an even harder rule to explain; at least the other two are complex, but what can be holding up the railroad security training rule? Open Government Actually, there must be a pretty decent explanation for each of these rules being delayed; the yelling and screaming from Congress is very muted. Chairman Thompson makes the occasional pro-forma complaints about the ammonium nitrate rule. Chairman Rockefeller only made passing references to the training issue during last weeks hearing on rail security. Apparently DHS is keeping the Chairmen in the loop. What’s missing, of course, is the communication with the public. But, what the heck, this is the Federal government. The public doesn’t really need to know. That’s why they send Senators and Representatives to Washington; to keep track of the important stuff. The public doesn’t need to be bothered. But wait, didn’t the Obama administration just make a big deal about this whole ‘Open Government’ thing? Do you think that they might have included explaining to people why the government can’t obey its own laws? Apparently not….