Friday, February 1, 2019

OMB Approves TSA Pipeline Security Assessment ICR Revision

Yesterday the OMB’s Office of Information and Regulatory Affairs (OIRA) announced that it had approved ‘without change’ a recent revision of the TSA’s information collection request for ‘Critical Facility Information of the Top 100 Most Critical Pipelines’ (1652-0050). Unfortunately, it appears that OIRA misprinted the response and burden information in the announcement as the numbers did not reflect the 160 responses and 720 burden hours requested by TSA. Nor did OIRA include the cost burden estimates provided by TSA.

The Change

The TSA requested the change in the ICR because they were reducing the burden estimates. This change was based on the TSA’s proposed reduction in annual site visits from 90 to 80 each year. The TSA did announce this change in collection requirements in their 60-day ICR notice, but they did not give a reason for the change. Neither was the reason explicated in the supporting document [.DOCX download link] provided to OIRA. This may explain the one-year delay in the ORIA approval process.


According to the TSA supporting document each year the TSA sends either a Surface Transportation Security Inspector or a contractor to 80 (it used to be 90) critical facilities of the “nation’s 100 most critical pipeline systems” in accordance with a Congressional mandate {codified in 6 USC 1207(b)}. The inspections required by §1207(b) are intended to be part of a program for “reviewing pipeline operator adoption of recommendations of the September 5, 2002, Department of Transportation Research and Special Programs Administration’s
Pipeline Security Information Circular” {§1207(a)}. That circular has been updated a couple of times; most recently March 2018.

The §1207(b) inspection requirement is a one-time requirement “where such facilities
have not been inspected for security purposes since September 5, 2002”.


The more I look into this inspection requirement, the more confused I become. First off, I fully support an active inspection program even though there are no legally binding security requirements for pipeline operators. The guidance document is just that; not a regulation. Congress did give DHS authority to recommend that DOT establish (and provide inspections and enforcement actions in support of) security regulations for pipelines. No such regulations have been established.

The §1207 security ‘requirements’ are all based upon the 2002 DOT guidance document. The specific naming of that particular version of the document would seem to obviate any ‘need’ for the various updates issued by TSA; there is no legal basis for using those updates in any inspection.

Next the §1207(b) inspections are a one-time inspection requirement. If a facility has been inspected since September 5th, 2002, there is no longer any authority under this paragraph for a return visit.

All of this seems clear to this point.

What is not clear is how many facilities are on the list to be inspected and how many inspections have been conducted to date. Each time that TSA submits an ICR update (and in the original ICR) they provide an ‘estimate’ of the number of inspections they will conduct, but there is no report that I can find that delineates how many inspections are actually conducted.

According to the ICR record, these inspections have been going on since sometime in 2008. One would have to assume that a fairly large number of ‘critical facilities’ have been inspected since then. If the TSA is continuing with the 1-time inspection authorization we should be approaching an end to the inspection process, but I find it hard to believe that is really the case.

Actually, I would hope (having lived and worked near some of the affected pipelines) that this security program is ongoing and repetitive. Unfortunately, I am not sure that Congress agrees with me. The §1207 inspection program included an annual authorization of $7 million per year through 2010 for the program. The program has not been reauthorized since then. The current program is thus being funded out of the general Surface Programs ($129 million in the FY 2018 spending bill) portion of the TSA spending with no specific breakout in any of the Congressional funding documents.

It would be helpful if Congress did some oversight of this program. Some questions that should be asked:

• Why did DHS/DOT decide that regulations were not necessary under §1207(d)?
• How many facility inspections has TSA conducted since 2008?
• How many facilities have been in full compliance with the guidance documents?
How many facilities have implemented all of the recommendations provided by TSA as a result of the inspections?

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