Fall 2020 Unified Agenda Published – DHS

Yesterday the Trump Administration published the Fall 2020 Unified Agenda, laying out the plans for the various Federal agencies for rulemakings for the coming year. Technically, this agenda is non-partisan, but the incoming Biden Administration is sure to make some changes as they take over the reins of the federal government starting in late January. There have been some interesting changes to the DHS portions of the Agenda that I follow here.

Current Agenda

The table below shows the rulemakings from the current agenda that I will be following here from various agencies within DHS.

TSA	Proposed Rule	Vetting of Certain Surface Transportation Employees	1652-AA69
TSA	Final Rule	Protection of Sensitive Security Information	1652-AA08
CISA	Prerule	Removal of Certain Explosive Chemicals From the Chemical Facility Anti-Terrorism Standards (CFATS)	1670-AA03
CISA	Proposed Rule	Ammonium Nitrate Security Program	1670-AA00

Current DHS Agenda Items

The first two items were carried over from the current agenda on the Spring 2020 Unified Agenda with no significant changes. The third item is a completely new agenda item that I will briefly discuss below. Finally, the last item was moved from the long-term agenda to the current agenda and modified. Again, I will discuss that in more detail below.

Long-Term Agenda

The table below shows the rulemakings from the long-term agenda that I will be following here from various agencies within DHS.

OS	Homeland Security Acquisition Regulation: Safeguarding of Controlled Unclassified Sensitive Information (HSAR Case 2015-001)	1601-AA76
OS	Homeland Security Acquisition Regulation: Information Technology Security Awareness Training (HSAR Case 2015-002)	1601-AA78
USCG	Identifying Barriers to Autonomous Vessels	1625-AC54
TSA	Surface Transportation Vulnerability Assessments and Security Plans	1652-AA56
CISA	Chemical Facility Anti-Terrorism Standards (CFATS)	1670-AA01
CISA	Updates to Protected Critical Infrastructure Information (PCII) Program	1670-AA02

Long-Term DHS Agenda

There were only two changes here. The first was the move from the long-term agenda to the current agenda that I mentioned above. The second was the move of the Coast Guard item from the Spring 2020 current agenda here. There were no new rulemakings added.

COI Removal

The new CFATS rulemaking added to the current agenda is one that has been long sought by the explosives industry since they are already regulated for security matters by the Bureau of Alcohol, Tobacco, Firearms and Explosives. According to the abstract:

“The Cybersecurity and Infrastructure Security Agency (CISA) is considering removing all 49 Division 1.1 explosive chemicals of interest from Appendix A of the Chemical Facility Anti-Terrorism Standards regulations. CISA intends to solicit comment through an Advance Notice of Proposed Rulemaking (ANPRM) on the advisability of removing Division 1.1 explosives from Appendix A to the Chemical Facility Anti-Terrorism Standards (CFATS) regulations located at 6 CFR part 27. Currently, both CISA and the Bureau of Alcohol, Tobacco, Firearms and Explosives regulate facilities possessing these chemicals for security concerns.”

It seems odd to me that the Trump Administration did not try to start this rulemaking process earlier since it was, at least initially, so interested in removing duplicative regulations. It will be interesting to see how this rulemaking develops under the Biden Administration. Even if this moves forward it is unlikely to complete the regulatory development process very quickly. This could be still in-process when the program comes up for congressional reauthorization in 2023.

Ammonium Nitrate Security Program

This rulemaking has been around for quite some time now. It was originally mandated by Congress to be in place by 2008. The advanced notice of proposed rulemaking was published in October of 2008 and the subsequent notice of proposed rulemaking (NPRM) was posted in August of 2011. DHS had problems moving forward with the regulation as it could not justify the cost of the program required by Congress. In June of 2019 DHS published a redacted copy of the Sandia Labs report on ammonium nitrate which actually expanded the case for regulating the sale of AN.

It looks like CISA is ready to try again. According to this rulemaking document they intend to withdraw the ‘current’ NPRM and then publish a new one. According to the abstract:

“A Federal regulation governing the sale and transfer of ammonium nitrate is statutorily mandated. Given that: (1) Terrorists can easily acquire significant amounts of ammonium nitrate through many small purchases, and (2) 6 U.S.C. 488 et seq. focuses on only one of many IEDPs available to terrorists, CISA believes that a comprehensive regulatory regime cannot be constructed under 6 U.S.C. 488 et seq. in a manner that produces societal benefits larger than burdens. Therefore, CISA's new proposed rule will seek to minimize burdens while satisfying statutory requirements.”

This should be an interesting exercise given the congressional requirements for registration and regulation of the transfer of ammonium nitrate at the point of sale.