DHS Publishes Regulatory Agenda Semiannual Update – 3-31-21

Today DHS (along with all other major federal agencies and departments) published their latest semiannual regulatory agenda in the Federal Register (86 FR 16906-16914). According to the document summary this “regulatory agenda is a semiannual summary of projected regulations, existing regulations, and completed actions of the Department of Homeland Security (DHS) and its components.” All of the rulemaking descriptions and forecast activity action dates are based upon entries in the Fall 2020 Unified Agenda published by the Trump Administration in December.

Chemical Security Rulemakings

There are two separate chemical security related rulemakings mentioned in today’s document. Under the ‘Proposed Rule Stage’ for CISA is the “Ammonium Nitrate Security Program” (RIN 1670-AA00); no description verbiage or time frame data is included.

The second is under the CISA ‘Long Term Actions’ heading; “Chemical Facility Anti-Terrorism Standards (CFATS)” (RIN 1670-AA01). This is not the ‘explosives removal ANPRM’ that was published in January; rather it is the EO 13650 mandated rulemaking that was published (as an ANPRM) back in 2014. The ‘Abstract’ printed in today’s Notice comes straight from the RIN entry in the Fall 2020 Unified Agenda. That explains the very dated “Once the comment period closes” phrase in the final sentence. That comment period closed on September 19^th and there were only four comments submitted on that retrospective analysis of the 2007 CFATS interim final rule.

Commentary

At first glance, it seems odd that there is no discussion of the ANSP rulemaking when it is listed as being in the ‘Proposed Rule Stage’. The Trump Administration looked forward to withdrawing the “current” (2011) notice of proposed rulemaking and publishing a new NPRM. Both actions were “expected” to occur in this month. CISA (or rather its predecessor NPPD) concluded (long before Trump came into office) that it was not possible to construct a cost-effective set of security rules under the requirements of 6 USC Part J. Apparently the Trump Administration intended to write a new regulatory scheme without regards to the Congressional requirements of Part J.

I suspect that the Biden Administration will attempt, with its nominal (read ‘mostly ficticious’) control of Congress, to rewrite the requirements of Part J and then propose supporting regulations. I expect that CISA will continue to work with Congressional Democrats (as they have been behind the scenes for the last four years) to change the statute to reflect the regulations that they have been working on. Since, Rep Thompson (D,MS) was the sponsor and vocal supporter of the Part J legislation (HR 1860) and he is (again) the Chair of the House Homeland Security Committee, so he will have to be an important part of revising Part J.

But, since this is a Biden interpretation of the Trump Agenda, this Semiannual Regulatory Agenda is more of a compliance exercise than an aspirational report. Do not hold your breath waiting for anything mentioned in today’s notice to happen.