On Wednesday the Office of Management and Budget published
the Fall 2013 Unified Agenda. This is a twice yearly exercise undertaken by
each administration to outline the status of current and planned rulemaking
actions. Since I have been watching it in this blog it has been pretty much an
exercise in futility as the projected dates of action on the listed rules is
usually nothing more than a pretty fairy tale.
DHS Rulemakings
As I usually do I initially look at the proposed regulatory
actions listed by DHS. The table below shows the currently planned rulemaking
activities that I think may be of potential interest to readers of this blog.
Please note that there is no mention of any cybersecurity activities in this
list.
OS
|
Petitions for Rulemaking, Amendment, or Repeal
|
|
NPRM 06-14
|
OS
|
Ammonium Nitrate Security Program
|
|
Final Rule 03-14
|
OS
|
Classified National Security Information
|
|
Final Rule 12-13
|
USCG
|
Updates to Maritime Security
|
|
NPRM 09-14
|
USCG
|
Transportation Worker Identification Credential (TWIC);
Card Reader Requirements
|
|
Final Rule 04-14
|
USCG
|
Revision to Transportation Worker Identification
Credential (TWIC) Requirements for Mariners
|
|
Interim Final Rule 03-14
|
TSA
|
General Aviation Security and Other Aircraft Operator
Security
|
|
NPRM 8-14
|
TSA
|
Security Training for Surface Mode Employees
|
|
NPRM 8-14
|
TSA
|
Freight Railroads and Passenger Railroads--Vulnerability
Assessment and Security Plan
|
|
NPRM 9-14
|
TSA
|
Standardized Vetting, Adjudication, and Redress Services
|
|
NPRM 8-14
|
DHS 2013 Unified Agenda Items of Interest
This is pretty much the same list I described last July when
the Spring 2013 Unified Agenda was published. DHS has not changed the status of
any of these rulemakings other than revise the expected dates of action. All of
these dates, with the possible exception of the one for the Classified National
Security Information rulemaking fall under the category of “the check’s in the
mail”. As I noted
earlier
this week the CNSI rulemaking has been forwarded to OMB for review so there
is a remote possibility that the Final Rule may actually get published next
month; January is more likely and it could be February or March depending on
the sensibilities of OMB.
I did add one new item to my list, though it has been on the
DHS Agenda since 2009. That is the first item; Petitions for Rulemaking,
Amendment, or Repeal (
1601-AA56).
Federal law requires that each “agency shall give an interested person the
right to petition for the issuance, amendment, or repeal of a rule” {
5
USC 553(e)}. This rulemaking would set out the procedures for exercising
that right and delineate the process by which DHS would respond. Don’t worry; I
expect that this rulemaking will be completed by the end of the century (pardon
the sarcasm).
Long Term Actions
There is a separate section of the Unified Agenda that
lists. If the actions listed in the active portion of the Unified Agenda are
slow to happen, then I don’t consider the listing of anything on the ‘Long Term
Actions’ list to be anything more than a political wish list. Things move on and
off this list with wild abandon. The current list includes:
TSA
|
Protection of Sensitive Security Information (SSI)
|
|
TSA
|
Drivers Licensed by Canada or Mexico Transporting
Hazardous Materials To and Within the United States
|
|
For the first TSA has been operating off of an interim-final
rule since 2004. This keystone of the critical infrastructure information protection
program certainly needs to be finalized. I’m afraid that the second is kind of
waiting on the completion of a DOT pilot program for allowing Mexican trucking
companies to haul cargos into the United States beyond the border region.
Beyond the safety aspects being addressed by DOT, I think that the main holdup
for this rule is concerns about the background vetting process in Mexico.
There is one item that is missing from the wish list this
time and that is a rule concerning Top Screen Information Collection From
MTSA-Regulated Facilities Handling Chemicals. That little bit of chemical
security harmonization has apparently dropped of the Administrations list of
things to think about doing.
I also admit that I kind of hoped to see a listing on the
Long Term Agenda list for the update of the Risk Based Performance Standards
Guidance document. While not strictly a regulatory document, it is a key part
of the CFATS enforcement process and deserves to be updated with the lessons
learned to date in that program.
Missing Items from
the EO
I am more than a little disappointed that some of the items
mentioned in the President’s Chemical Safety and Security Executive Order (
EO
13650) did not make it into the regulatory agenda or at least the Long Term
Actions List. I’ll look at EPA and OSHA actions in a separate look at their
Unified Agenda’s, but here are some things that probably should have made it
into the DHS list:
The Secretary of Homeland Security
shall assess the
feasibility of sharing Chemical Facility Anti-Terrorism Standards (CFATS) data
with SERCs, TEPCs, and LEPCs on a categorical basis.
The Secretary of Homeland Security,
the Secretary of Labor, and the Secretary of Agriculture
shall develop a
list of potential regulatory and legislative proposals to improve the safe and
secure storage, handling, and sale of ammonium nitrate and identify ways in
which ammonium nitrate safety and security can be enhanced under existing
authorities.
The Secretary of Homeland Security
shall identify a
list of chemicals, including poisons and reactive substances, that should be
considered for addition to the CFATS Chemicals of Interest list.
I will admit that I am not surprised by the lack of the
first two, but the last item has been on the ISCD internal discussion agenda
for a couple of years now with more than a few discussions with industry
representatives. An update of Appendix A should certainly be on the Long Term
Agenda list (even ignoring my pet peeve; the methyl bromide issue).