Fall 2015 Unified Agenda – DHS

Today the OMB’s Office of Information and Regulatory Affairs published the Fall 2015 Unified Agenda. This is the current listing of the status of significant rulemakings planned or underway. The Long-Term Actions portion of the Unified Agenda was also updated.

Active DHS Rulemaking

Of the DHS rulemakings only ten may be of specific interest to readers of this blog. They include:

Protected Critical Infrastructure Information	1601-AA77
Petitions for Rulemaking, Amendment, or Repeal	1601-AA56
Chemical Facility Anti-Terrorism Standards (CFATS)	1601-AA69
Homeland Security Acquisition Regulation: Safeguarding of Sensitive Information; Information Technology Security and Privacy Training	1601-AA76
Updates to Maritime Security	1625-AB38
2013 Liquid Chemical Categorization Updates	1625-AB94
Transportation Worker Identification Credential (TWIC); Card Reader Requirements	1625-AB21
Revision to Transportation Worker Identification Credential (TWIC) Requirements for Mariners	1625-AB80
Security Training for Surface Mode Employees	1652-AA55
Surface Mode Vulnerability Assessment and Security Plans	1652-AA56

DHS Rulemakings in Fall 2015 Unified Agenda

PCII Rule

Of those ten rulemakings under way only one is new to this issue of the Unified Agenda; Protected Critical Infrastructure Information (1601-AA77); an already existing program under the DHS National Protection and Programs Directorate (NPPD). The abstract for this rulemaking states:

“The Department of Homeland Security (DHS or the Department) invites public comment on the Advance Notice of Proposed Rulemaking (ANPRM) for potential revisions to the Protected Critical Infrastructure Information (PCII) regulations that provide the Department with the authority to establish uniform procedures for the receipt, care, and storage of Critical Infrastructure Information voluntarily submitted to the Department. For the purpose of maturing the program, DHS is initiating this rulemaking process to help it identify how to enhance the PCII regulation more effectively in achieving its regulatory objectives. DHS believes that after nine years of experience implementing the PCII program, DHS has gained first-hand insight on lessons learned, and that the ANPRM process provides expanded opportunities for the Department to hear and consider the views of interested members of the public on their recommendations for program modifications.”

What is not mentioned in the abstract is that this rulemaking for a long standing program is almost certainly driven by the rulemaking process under way from the National Archives and Records Administration (NARA) for Controlled Unclassified Information (CUI). The final rule for that has been submitted to OIRA and should be published this year. That rulemaking distinguishes between document control programs that are established by legislation or regulation and others that are just routine agency programs. Establishing a PCII rule allows DHS more control of marking, classification, destruction and distribution of the information. Without this rulemaking NPPD will have to loosen up many of their existing ‘rules’ about PCII.

Projected Dates

Each of the rulemaking listings in the Unified Agenda have a projected date for the Federal Register publication of the next step in the rule making process. Do not pay much attention to these; in fact, I would go so far as to say don’t pay any attention to these. They mean less than a politician’s election promises.

Some of these rulemaking activities date back to before 2007 (Security Training for Surface Mode Employees). Every six months a new Unified Agenda is published and a new set of dates is inked in. And the new dates continue to get missed; even if Congressional mandates are missed in the process.

Long Term Actions

There is a separate section of the Unified Agenda for ‘Long Term Action’. The rulemakings listed here were at one time or another listed on the main agenda, but even DHS bureaucrats could not stomach pretending that they were going to be allowed to do anything about these rulemakings. There are currently four rulemakings on the Long Term Action list that may be of specific interest to readers of this blog:

Ammonium Nitrate Security Program	1601-AA52
Amendments to Chemical Testing Requirements	1625-AB58
Protection of Sensitive Security Information	1652-AA08
Drivers Licensed by Canada or Mexico Transporting Hazardous Materials to and Within the United States	1652-AA50

DHS Long Term Actions

Rulemaking activities flip back and forth between this list and the main Unified Agenda. For example the Ammonium Nitrate Security Program and the Protection of Sensitive Security Information rulemakings were on the 2015 Spring Unified Agenda. The CFATS and the Updates to Maritime Security Rulemaking were on the 2015 Spring Long Term Actions list.

The one thing that you can probably safely expect (no guarantees here) that a rulemaking on the Long Term Actions list will not be acted upon until at least after the next Unified Agenda is published in the Spring. But, don’t bet your rent money on that; this is all subject to changing political conditions.