Fall 2014 Unified Agenda – DHS

Last Friday the OMB’s Office of Information and Regulatory Affairs (OIRA) published the 2015 Fall Unified Agenda, what is supposed to be a comprehensive listing of regulations that the Executive Branch is working on.

DHS Unified Agenda

Last May I reported that there were there were 11 rulemaking actions being undertaken by the Department of Homeland Security that might be of specific interest to readers of this blog. This update only lists six of those rulemakings; one rulemaking (the ANSP) was moved up from the Long-Term Agenda. Those rulemakings include:

OS	Final Rule	Ammonium Nitrate Security Program	1601-AA52
OS	Proposed Rule	Petitions for Rulemaking, Amendment, or Repeal	1601-AA56
USCG	Proposed Rule	Updates to Maritime Security	1625-AB38
USCG	Final Rule Stage	Transportation Worker Identification Credential (TWIC); Card Reader Requirements	1625-AB21
TSA	Proposed Rule	Security Training for Surface Mode Employees	1652-AA55
TSA	Proposed Rule	Standardized Vetting, Adjudication, and Redress Services	1652-AA61

Current DHS Rulemakings of Interest

Long-Term Agenda

Three of the items from the 2014 Spring Agenda were moved to the Long Term Agenda. Typically this list is for those items that have been required to be completed either by Congress or the Courts, but that the Administration (in most cases successive administrations) have no intention to work on because of the complexity of the issues, the impossibility of reaching a consensus on how the regulations should work, or it just does not fit within the current political agenda. Those three rulemakings are:

OS	Chemical Facility Anti-Terrorism Standards (CFATS)	1601-AA69
USCG	Revision to Transportation Worker Identification Credential (TWIC) Requirements for Mariners	1625-AB80
TSA	Protection of Sensitive Security Information	1652-AA08

Long-Term DHS Rulemakings of Interest

It is unusual to see the CFATS update move off the Unified Agenda. DHS just finished taking public comments on the advanced notice of proposed rulemaking last month and this was the first of the rulemakings initiated under the President’s Improving Chemical Safety and Security Executive Order. This may reflect a decision that any further rulemaking at this time is counterproductive since we may likely to see a comprehensive chemical security bill pass either next month (remotely possible) or early in the next Congress. Any such legislation would require an entirely different rulemaking process.

Three items slipped completely off the agenda:

TSA	General Aviation Security and Other Aircraft Operator Security	1652-AA53
TSA	Freight Railroads and Passenger Railroads--Vulnerability Assessment and Security Plan	1652-AA56
OS	Classified National Security Information	1601-AA68

The first two have certainly disappeared because, while they were required by Congress, there is little appetite to take on the potentially regulated community. Since there is little indication that anyone currently sees general aviation of rail transportation as being actively threatened by terrorists and any effective security measures would be quite expensive, I think that the Administration is hoping to let these rulemaking activities die a quiet, unnoticed death.

Allowing the last one to pass quietly into that good night is more than a little odd. This rulemaking was based upon requirements set forth in the President’s Classified National Security Information Executive Order, so you would have expected this to be taken to completion by the Administration. It looks like this is following the same rule fate as the similar regulations governing sensitive but unclassified information. Just another case of an Administration’s being unable to follow through on their regulatory agenda.