Monday, December 24, 2012

Closer Look at 2012 DHS Rules List

As I mentioned in my earlier blog post the OMB’s Office of Information and Regulatory Affairs (OIRA) recently update their Unified Agenda and the associated agency rule lists. Today I would like to take a closer look at the rulemaking actions on the DHS Rule List that would be of potential interest to readers of this blog.

Classified Information

The one new rulemaking listing in this List deals with the DHS regulation of Classified National Security Information (RIN 1601-AA68). According to the Abstract:

“The Department of Homeland Security (DHS) is revising its procedures for managing classified national security information. DHS is updating its regulations to incorporate new and revised procedures pursuant to Executive Order 13526, ‘Classified National Security Information.’ Further, DHS is delegating to the Chief Security Officer of DHS the responsibility of serving as the ‘Senior Agency Official’ pursuant to Executive Order 13526.”

Apparently the folks at DHS are intending to go directly to issuing a Final Rule in May, 2013 without the intermediate step of issuing a notice of proposed rulemaking. This methodology is allowed if the rule only affects internal actions in the Department and has no significant impact on State, local or tribal governments of private citizens. We will just have to wait and see what the Final Rule actually says.

Maritime Shipping Safety

We have two rulemakings from the Coast Guard dealing with maritime shipping safety that remain on the DHS Rule List. They are:

• Cargo Securing on Vessels Operating in U.S. Waters (RIN 1625-AA25)

• Bulk Packaging To Allow for Transfer of Hazardous Liquid Cargoes (RIN 1625-AB63)

Neither of these has a statutory mandate for date of issue. The Coast Guard intends to issue a supplemental Cargo Securing NPRM in April and a final rule for the Bulk Packaging rule in January.

Maritime Security

There are two Coast Guard rulemakings on the List that deal with MTSA issues. They are:

• TWIC Card Reader Requirements (RIN 1625-AB21)

• Updates to Maritime Security (RIN 1625-AB38)

The Card Reader rule has been long delayed, partly due to problems the TSA had with their field trials of various card readers. The final rule was required to be published in August of 2010 and the Coast Guard is now estimating that the notice of proposed rulemaking will be published in February. As I noted in an earlier blog posting this rule has already been sent to the OMB for review so this date may not be too far out of line, but that still leaves us at least a year before the final rule is published.

According to the Abstract for the Updates to Maritime Security rulemaking this would be the first major update to Subchapter H of 33 CFR since the MTSA regulations were adopted. The Abstract explains that:

“The proposed changes would further the goals of domestic compliance and international cooperation by incorporating requirements from legislation implemented since the original publication of these regulations, such as the SAFE Port Act, and including international standards such as STCW security training. This rulemaking has international interest because of the close relationship between subchapter H and the International Ship and Port Security Code (ISPS).”

The Coast Guard is planning on issuing the NPRM for this rulemaking in April of 2013.

General Aviation Security

TSA is still struggling to overcome resistance to rules governing the security of general aviation aircraft. Their NPRM that was published in 2008 met so much opposition from the public and Congress that TSA will be issuing a ‘supplemental’ NPRM that will almost certainly be a total re-write of their General Aviation Security and Other Aircraft Operator Security rulemaking (RIN 1652-AA53). They expect to issue their supplemental in August of 2013.

Surface Transportation Security Training

A while back TSA rolled three congressionally mandate rulemaking requirements into a single rulemaking, Security Training for Surface Mode Employees (RIN 1652-AA55). The thee mandated publication dates were in 2007 and 2008 and TSA has yet to produce their first public version of the rule that would “propose general requirements for the owner/operators of a freight railroad, public transportation system, passenger railroad, and an over-the-road bus operation determined by TSA to be high-risk to develop and implement a security training program to prepare security-sensitive employees, including frontline employees identified in sections 1402 and 1501 of the Act [the Implementing Recommendations of the 9/11 Commission Act of 2007], for potential security threats and conditions”.

While that certainly seems to be a fairly comprehensive program TSA also intends to extend the “security coordinator and reporting security incident requirements applicable to rail operators under current 49 CFR part 1580” to other portions of the surface transportation industry.

TSA expects to have the NPRM finally go to publication in July of 2013.

Railroad Security Planning

Another long overdue requirement from the Implementing Recommendations of the 9/11 Commission Act of 2007 is the Freight Railroads and Passenger Railroads--Vulnerability Assessment and Security Plan rulemaking (RIN 1652-AA56). According to the Abstract:

“This rulemaking will propose thresholds for which a risk determination can be made to determine whether a freight railroad and passenger railroad should be considered "high risk." The rulemaking will also propose requirements for vulnerability assessments and security plans for owner/operators of those railroads. The proposed requirements include procedures for TSA's review and approval of these assessments and plans, and recordkeeping requirements. The regulation will take into consideration any current security assessment and planning requirements or best practices.”

This rule could easily become the TSA’s version of the CFATS regulations in scope and impact, potentially requiring a significant expansion of the number of Surface Transportation Security Inspectors, something never authorized by Congress; coming up with an effective rule that can overcome that funding obstacle is a real challenge. TSA expects to have the NPRM published by July of 2013.

TSA Security Threat Assessments

The TSA does the security threat assessments for a number of travel related security programs including the Hazardous Materials Endorsement for CDLs and the TWIC as well as future programs such as the CFATS personnel surety program. Each of these programs is currently governed by a slightly different set of rules. With this Standardized Vetting, Adjudication, and Redress Services rulemaking (RIN 1652-AA61) the TSA “intends to propose new regulations to revise and standardize the procedures, adjudication criteria, and fees for most of the security threat assessments (STA) of individuals for which TSA is responsible”. According to the Abstract:

“In accordance with the Implementing Recommendations of the 9/11 Commission Act of 2007 (9/11 Act), the scope of the rulemaking will include transportation workers from all modes of transportation who are required to undergo an STA in other regulatory programs, including certain aviation workers and frontline employees for public transportation agencies and railroads. In addition, TSA will propose fees to cover the cost of the STAs and credentials for some personnel. TSA plans to improve efficiencies in processing STAs and streamline existing regulations by simplifying language and removing redundancies.”

TSA intends to issue their notice of proposed rulemaking for this rule in July of 2013.

Actual Dates for Rulemaking

The dates that I have been reporting for the intended date that DHS components would act on these rulemakings were provided in the DHS Rule List. There is no statutory requirement about the accuracy of these estimates and, even if there were, DHS is more than notorious for missing congressionally mandated deadlines. The only one of the above listed dates that I would have any sort of confidence in is the one for the TWIC Reader Rule and that is because it has already been submitted to OMB for approval, but even that could be delayed for months in the OMB approval process and there is no guarantee that OMB will approve the submitted NPRM.

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