DHS IED Precursor Meetings

Yesterday I saw a brief post by David Wulf, Director of the DHS Infrastructure Security Compliance Division (ISCD), on LinkedIn. In it he announced a series of ‘stakeholder engagement meetings’ in the coming months that the Cybersecurity and Infrastructure Security Agency will be holding on ‘explosive precursors’. There is not a lot of information in the post beyond the dates and locations for the meetings (listed below).

Los Angeles, CA                      May 23^rd, 2019

Orlando, FL                             May 30^th, 2019

Houston, TX                            June 4^th, 2019

Indianapolis, IN                        June 11^th, 2019

Chicago, IL                              June 13^th, 2019

Unfortunately, the post on LinkedIn shows a photographic copy of the flyer about the meetings and what I would expect to be links on the flyer are not ‘active’ in the photo. Wulf does provide an email address for those wishing ore information; CFATS@hq.dhs.gov.

Background

This is part of the continuing saga of the Congressional mandate for DHS to regulate the commercial sale of ammonium nitrate. ISCD published an advanced notice of proposed rulemaking (ANPM) in 2008. Subsequently, ISCD published a notice of proposed rulemaking (NPRM) in 2011.

The big problem with the proposed ammonium nitrate security regulations is that they were going to involve a large number of people and would be very costly. DHS estimated that the ten-year cost for the program would be between “$364.2 million to $1.3 billion with a primary (mean) estimate of $814 million”. Balancing this against a cost of a Murrah Building attack estimated by DHS to be $1.35 billion. This would mean that the regulation cost would break even if the regulations prevented one Murrah scale attack every 14 years. Since there has not been such an attack in the 24 years since the Murrah attack, the cost of the program is not outweighed by the attack prevention. This calls into question whether or not ammonium nitrate regulation is cost effective, especially since ammonium nitrate no longer seems to be a favored precursor for terrorist explosive devices.

In 2016, in consultation with Congress, ISCD decided to look at the issue of regulating a wider range of chemicals as explosive precursors that could be expected to be used in preparing terrorist explosive devices. In August of 2016 DHS commissioned a study by the National Academies of Sciences, Engineering, and Medicine on the subject that would lead to a report being published in November of 2016; “Reducing the Threat of Improvised Explosive Device Attacks by Restricting Access to Chemical Explosive Precursors”.

This meeting announcement would seem to indicate that ISCD is considering moving forward with new rulemaking process. It is not currently clear whether or not the new process would be included in the current Chemical Facility Anti-Terrorism Standards (CFATS) program or if it would be a new standalone program also being operated out of ISCD. If this program is targeted at manufacturers and wholesale distribution, I suspect that it would be included in CFATS program. If it is focused at the retail level, it would be harder to fit it into the existing chemical security program.

The Meetings

David notes the reason for the meetings: “As we work with Congress to enhance the security of IED precursor chemicals, we want to hear from you!” What is important, however, is that these are being billed as ‘stakeholder engagement meetings’ rather than ‘public listening sessions’. Remembering back to the Obama era Chemical Safety and Security EO, those listening sessions were designed to provide a wide range of public input into those EO processes. This is apparently something different, however.

The stakeholders in this process would appear to be those portions of the chemical industry that are involved in the manufacture, distribution and potentially the commercial sale of chemicals that have been identified as key precursors to the manufacture of improvised explosives. There is a remote possibility that it could also include the transportation of those chemicals, but I suspect that it would take congressional action to include that sector.

Possibilities

This is very early in the potential rulemaking process; we have not yet even seen an advanced notice of proposed rulemaking. At this point I do not think that ISCD has got a firm grip on what they want to do. The ammonium nitrate security program is effectively dead, but what could we be looking at down the road? ISCD is tight lipped on this, so I am speculating here, but I see a variety of options available.

First ISCD could seek changes to the DHS chemicals of interest (COI) list addressing the list of precursor chemicals identified in the Report (pg 28). This could include adding some new chemicals and potentially changes to the screening threshold quantities for some existing chemicals. This would certainly require a formal rulemaking and would add a substantial number of facilities to the CFATS program. This would necessitate addition funding from Congress for more chemical security inspectors.

ISCD could also modify their existing CFATS risk assessment process to increase the risk assumptions associated with existing COI that are included in the Report’s list of precursor chemicals. This could almost certainly be done without a rulemaking. We would see a process similar to that used when ISCD implemented CSAT 2.0. A modification of the current CSAT information collection request would be necessary and that would provide industry (and the public) with a chance to comment on the proposed changes. Again, this would result in more facilities in the CFATS program and the need for more money.

If the decision is made to keep the precursor chemical security program within CFATS. I would really expect to see it include a combination of these two processes. I might expect to see some additional changes including a requirement for covered facilities to provide ISCD with a list of customers to which precursor COI are shipped.

The most comprehensive solution would be to stand up an entirely new program within ISCD. If this route is taken, I suspect it would include some sort of voluntary program for commercial retailers and large-scale users of these precursor chemicals. The thing that effectively killed the ammonium nitrate security program was the costs associated with setting up and administering a registration program for retailers and users of ammonium nitrate. These costs would quickly escalate if a similar registration program were instituted for all of the listed chemicals.

Moving Forward

As I said, earlier this is very early in the regulatory process, but stakeholders need to get involved early in the process if they want to effectively impact how the new procedures are implemented.