Friday, November 29, 2013

OMB Publishes Fall 2013 Regulatory Agenda

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.

Petitions for Rulemaking, Amendment, or Repeal
NPRM 06-14
Ammonium Nitrate Security Program
Final Rule 03-14
Classified National Security Information
Final Rule 12-13
Updates to Maritime Security
NPRM 09-14
Transportation Worker Identification Credential (TWIC); Card Reader Requirements
Final Rule 04-14
Revision to Transportation Worker Identification Credential (TWIC) Requirements for Mariners
Interim Final Rule 03-14
General Aviation Security and Other Aircraft Operator Security
NPRM 8-14
Security Training for Surface Mode Employees
NPRM 8-14
Freight Railroads and Passenger Railroads--Vulnerability Assessment and Security Plan
NPRM 9-14
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:

Protection of Sensitive Security Information (SSI)
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).

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