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.

Beirut and Changes to the AN Security Program

As I noted last week, the catastrophic explosion in Beirut, which may have been the result of a fire in an ammonium nitrate storage facility, has resulted in Rep Thompson (D,MS), Chair of the House Homeland Security Committee, calling for DHS to complete the rulemaking on the Ammonium Nitrate Security Program, required by 6 USC Part J – Secure Handling of Ammonium Nitrate.

As I have explained before, that rulemaking is stalled because the cost-benefit analysis provided in the notice of proposed rulemaking makes it clear that the rulemaking is cost effective. In large part this is due to the requirement in §488a to register everyone that would buy ammonium nitrate, or act as an agent of someone buying ammonium nitrate from registered ammonium nitrate facilities. These requirements are not something that DHS or CISA (the action agency for the Ammonium Nitrate Security Program (ANSP) can change. Thompson, however, is in an excellent position to address the deficiencies in the legislative requirements for the program.

With that in mind, I would like to suggest some changes that could be made to Part J that would correct this and other problems noted in the comments received in the rulemaking process.

Definitions

Section 488 provides the definitions used in this Part and there are three changes to definitions in this section. First, the definition of ‘ammonium nitrate should be revised to provide clarity that it does not include any materials that are already regulated as ‘explosives. This can be accomplished by adding at the end of §488(1) a new subparagraph (C):

(C) “does not include any mixture regulated under §27 CFR Part 555.”

The second definitional change that should be made would be to resolve the issue where an individual could be both ‘an ammonium nitrate facility’ and ‘an ammonium nitrate purchaser’ depending on which side of a transaction they are in a given moment. This could be done by making the following modification to the definition of ‘ammonium nitrate purchaser’:

(3) Ammonium nitrate purchaser

The term ‘‘ammonium nitrate purchaser’’ means any person who purchases ammonium

nitrate from an ammonium nitrate facility that is not registered per this Part as an ammonium nitrate facility.

Finally, there was some concern from a number of commenters about the use of the term ‘unexplained loss of ammonium nitrate’ in §488d. Depending on the packaging mode a 50-lb could reasonably be determined to be an ‘inventory error’ not missing material. In instances where bulk shipments by barge are being discussed, it is apparently routine to have thousands of pounds being blown of the barges by the wind. Thus, ‘unexplained loss’ needs to be tied to the packaging/transport mode of the material. With that in mind, we could add the following definition of that term in this section:

(4) Unexplained Loss of Ammonium Nitrate

The term ‘unexplained loss of ammonium nitrate’ means a negative change in inventory of ammonium nitrate in an amount set for each type of packaging (bags, bulk bags, and bulk) by the Secretary, after notice and an opportunity for comment, that does not have a readily apparent cause.

Regulation of the sale and transfer of ammonium nitrate

Section §488a is where the bulk of the proposed changes are going to be required. The first item that needs to be addressed is the issue of what ammonium nitrate mixtures (other than registered explosives that were addressed above) would be covered by the ANSP. The original language required DHS to establish what percentage of ammonium nitrate in a mixture would be covered but did not address what the de minimis amount would be. With that in mind I would suggest the following change to §488a(b):

(b) Ammonium nitrate mixtures­­­­­­­­­

Not later than 90 days after December 26, 2007,

the   The Secretary, in consultation with the heads of appropriate Federal departments and agencies (including the Secretary of Agriculture), shall, after notice and an opportunity for comment, establish a threshold percentage for ammonium nitrate in a substance and the minimum amount of ammonium nitrate mixture that shall be regulated under this Part.

This is the section of Part J that deals with the requirement to register purchasers of ammonium nitrate that I am proposing to remove. To delete this requirement, paragraph (d) would have to be deleted as would all references to “(d)” in the remainder of the section. Additionally, the renumbered paragraph (d), Records, would require a change to subparagraph (2)(B):

(A) record the name, address, and telephone number, and registration number issued under subsection (c) or (d) of each person that purchases ammonium nitrate, in a manner prescribed by the Secretary;

While the earlier change to the ammonium nitrate definition would exempt regulated explosive mixtures from coverage of Part J, it would not specifically exempt explosive manufacturers from coverage under this part. This could be accomplished by modifying paragraph (f), Exemption for explosive purposes, to read:

(f) Exemption for explosive purposes

The Secretary may will exempt from this part a person producing, or selling, or purchasing ammonium nitrate exclusively for use in the production of an explosive under a license or permit issued under chapter 40 of title 18.

This change will retain the reporting requirement for covered facilities selling ammonium nitrate to regulated explosives manufacturers, but that should have no practical effect on those regulated manufacturers.

The final change deals with another issue that was raised during the rulemaking comment process, that of the requirements dealing with vetting people against the terrorist screening data base. In the same manner that we saw with the CFATS personnel security vetting, a number of commenters wanted DHS to acknowledge the fact that many of the people involved in the regulated universe would already have been vetted by one or more DHS programs. To deal with that I would suggest changing the current wording of paragraph (i)(2)(A) to read:

(A) Check required

(i)The Secretary shall conduct a check of appropriate identifying information of any person seeking to register with the Department under subsection (c) or (d) against identifying information that appears in the terrorist screening database of the Department,

(ii) The Secretary will accept information about current status of other programs administered by the Department where identification is vetted against the terrorist screening database of the Department, in lieu of requiring new information being submitted on those individuals.

Other Matters

When Thompson pushed through the language that is now Part J, he included provisions requiring the regulations to be developed within 90-days, while still requiring the normal publish and comment rulemaking process for the regulations. This established a standard that could not be met and set the stage for the slow rulemaking process that resulted.

I would assume that Thompson still wants quick action on the revised rulemaking. With that in mind I would suggest that the legislation include wording to require DHS to publish a revised NPRM within six months of the rulemaking being adopted, with the final rule being published a year later. This would still be a tight schedule, but CISA has already done much of the hard work on the rulemaking; most of the remaining work is trimming language and recalculating costs.

Keep in mind that this Part is still a security program not a safety program. There is nothing in the original language or my proposed changes that would stop a catastrophic explosion at an ammonium nitrate storage facility like the world saw in Beirut or the nation saw at West Fertilizer. Those were apparently safety issues, not security problems. Those issues would have to be dealt with separately. This revision of Part J would just make it easier to stop people from legitimately acquiring ammonium nitrate for nefarious purposes.

Tannerite and the ANSP

I had an interesting discussion last week with a reader who must remain anonymous (for professional reasons) about the technically still pending Ammonium Nitrate Security Program (ANSP) and explosive targets sold under the brand name Tannerite®. Anon was concerned that the sale of these binary explosives was not covered under the ‘proposed’ ANSP (all but dead) nor in the recently released Sandia Labs report on ammonium nitrate.

Anon is correct that the commercial sale of these targets would probably not be covered by the proposed ANSP. There is a 25-lb minimum on the amount of ammonium nitrate (AN) being sold to require buyer registration under that program. With the largest single packaging currently being sold on the Tannerite web site containing only eight ‘one-pound targets’ (containing presumably substantially less than 1-lb of AN), the company could very reasonably restrict sales enough to keep their customers from having to register).

Anon’s question is why would an ‘explosive target’ not be included in a security program designed to block the use of ammonium nitrate in improvised explosive devices (IED)? The answer to that question addresses the problem that DHS continues to have with their congressional requirement to regulate ammonium nitrate security to prevent its use in IED’s; money. And, unfortunately, we are not talking about the money lobbyists are spending to stop regulations; we are talking about the cost of regulations.

ANSP Costs

DHS estimated that the cost of their proposed Ammonium Nitrate Security Program would range somewhere between $300 million to $1.041 billion over 10 years with the actual expected cost closer to about $670.6 million. The largest variable in that overall cost estimate (and the largest part of the estimated cost) is the cost of the point-of-sale regulations.

Congress requires that potential regulators look at the cost benefit of their proposed regulations, and DHS did so with their ANSP notice of proposed rulemaking (NPRM). Using the Murrah Building attack (the only large scale AN based terrorist attack in the United States as their prevention standard, DHS calculated a payback period of 14.1 years for the ANSP. Or in plain-speak, if the ANSP prevented a Murrah scale attack every 14.1 years, the program would pay for itself. Since it has already been 24 years since that bombing, and a similar attack has not taken place, and the ANSP has not been in place, it seems like the price of the program is too large. That is, in fact, why DHS has not finalized the ANSP, it is not justified on a cost/benefit basis.

Smaller Scale Attacks

It would take a huge number of explosive targets (or medical cold-packs, another small-scale product that uses ammonium nitrate) to make up a Murrah Building scale bomb. The buyers of that type of quantity would stand out even without the ANSP and some law enforcement agency would be investigating. A huge number of small-scale purchases would not attract attention but would be logistically very difficult to accomplish.

No, binary targets and cold-packs would only be used in small-scale devices like the IEDs used in the September 2016 attacks in New York City. The one device that detonated did not kill anyone, but it did injure 29 people. The ANSP would not have prevented that attack. A federal program that would prevent that scale of IED attack by limiting the purchase of small amounts of ammonium nitrate would be significantly more expensive. It would have to prevent more than one such attack a year to be ‘cost effective’ based upon the $95 million cost per-year estimate for the ANSP program. The higher cost of the expanded program would probably require preventing an attack every couple of months to be effective.

Of course, it should be remembered that for small-scale IED’s ammonium nitrate-based weapons are fairly complicated and requires some small level of expertise to employ. There are a number of lesser skilled options available to the casual IED maker, black-powder or gunpowder pipe bombs being the most common examples in the US. And I will not even discuss the much less dangerous ‘mail-box bombs’.

This is one of the reasons that DHS has reached out to stakeholders about looking at the broader improvised explosive device issue. It is much too early to talk about this effort as being a rulemaking (especially since Congress has not specifically provided authority for an expanded rule making), but folks seem to be looking at establishing some sort of voluntary retail identification check program for some sort of list of chemicals that could be used to make IEDs (almost certainly not including mail-box bombs).

Houston Explosive Precursor Meeting – 06-04-19

The DHS (CISA) Infrastructure Security Compliance Division (ISCD) held the third of their Explosive Precursor Chemical Stakeholder Engagement Meetings yesterday in Houston. Two more to go in Indianapolis and Chicago.

I have not been (and unfortunately will not be) able to attend any of the meetings and they are not being web cast. But a long time reader, Cathi Cross, was able to attend today and was able to share some observations about the meeting. Here is what she saw {NOTE: Comments in brackets are my additions; they are not Cathi’s fault (grin)}:

In addition to DHS personnel, the 16 attendees were a mix of industry representatives, trade association representatives, academia, and the general public.

DHS clarified the series of scheduled meeting’s intended purpose is to focus on point of sale risk mitigation for certain precursors identified in the 2017 National Academy of Sciences Study [link to my blog post added], conducted for this purpose. DHS is seeking public comments on the report [link to NAS report web site added] .

DHS clarified that the discussion would intentionally deviate from CFATS regulation or the facilities regulated under its jurisdiction - and focus on mitigating risk at the point of sale [NOTE: ‘point of sale’ potentially includes all venues where precursor chemicals are sold] within the supply chain.

DHS began by reviewing the NAS report, at a high level. Key points: select precursor chemicals used to manufacture homemade explosives (and the prioritization method used by NAS), domestic chemical supply chains, and international regulations, possible control strategies, and the report’s six recommendations.

The Office of Bombing Prevention representative reminded participants of the available resources from their Bomb Making Materials Awareness Program (BMAP). Some of which have been made available on the website for the Center for Domestic Preparedness.

Next, DHS facilitated open discussion on explosive precursor chemicals, the supply chain, and point-of-sale. Topics included chemical prioritization, potential voluntary programs (including industry stewardship programs), potential regulatory programs, additional as of yet-unidentified high-risk points in the supply chain, concerns regarding commerce encumbrances, citizen awareness & worker training ideas, and brainstorming mitigation strategies.

Three specific concerns/ideas raised during the open discussion seemed to resonate with the attendees:

1. Initiator chemicals were removed from the scope of the NAS report. Reconsidering initiator chemicals and limiting the scope of this initiative to only those - may optimize administrative controls to a much smaller footprint while achieving significant risk reduction.

2. All point-of-sale transactions involve a financial transaction. Consult the financial sector for ways to identify, and eventually screen purchases through the financial transactions at point of sale.

3. The recommendation was made that the agency review comments previously submitted for the ANPRM on AN (October 29, 2008) because many of the comments may prove very valuable beyond the scope of that rulemaking, in development of a broader precursor program. [I did a series of blog posts on those comments here, here, here, here, here, here, and here]

Commentary

Back to my voice again.

As Cathi noted any precursor chemical security program is not going to be part of the Chemical Facility Anti-Terrorism Standards (CFATS) program. I have heard this emphatically from folks in and around the program. David Wulf is heading up this effort at CISA because the Ammonium Nitrate Security Program rulemaking was put under ISCD purview and this is an outgrowth of the ANSP.

Again, to be absolutely clear; this is not yet a rulemaking proposal. Congress has provided a mandate for establishing an ANSP, NOT an explosive precursor program. Before ISCD can even begin to start the rulemaking process, Congress is going to have to provide a new/revised authorization. DHS knows that there is a problem with tracking the sale of precursor chemicals, but they are not yet prepared to ask Congress for new/revised authorization to establish such a program. The whole point of these meeting is to gather as much input from the affected (potentially regulated) communities about what might and might not work.

There are two more meetings in the coming weeks;

• Indianapolis, IN                     June 11th, 2019

• Chicago, IL                            June 13th, 2019

Personnel wishing more information about attending the meetings should contact ISCD (CFATS@hq.dhs.gov) [AGAIN this does not mean that this is being added to the CFATS program, it is just a readily available email address that is already being staffed and worked]. If you are working with and/or more importantly selling one of the precursor chemicals identified in the NAS report, you really might want to consider attending one of these two meetings. You might be able to help educate one of your potential regulators.

DHS Publishes Redacted Ammonium Nitrate Report

Yesterday DHS published a notice in the Federal Register (84 FR 25495-25496) announcing the availability of a redacted copy of a report [.PDF download link, 28 mega bites] by Sandia Laboratories on their technical research, testing, and findings related to the feasibility of weaponizing commercially available products containing ammonium nitrate. This report is being made available as part of the DHS rulemaking on ‘Secure Handling of Ammonium Nitrate Program’.

Public Comments

The Department is seeking two types of comments from the public in regards to this publication as part of the ammonium nitrate security program rulemaking. First it is seeking information about the processes that Sandia Labs used to evaluate the explosive nature of compounds made with ammonium nitrate. Specifically, DHS is looking for evaluative comments on:

• The scientific methodology and test plans SNL employed;

• The technical data generated by SNL; and

• The test results, and factors affecting detonability thresholds.

Next the Department is seeking comments on the applicability of the information provided in the report to the definition of ammonium nitrate in the notice of proposed rulemaking. Specifically, DHS is looking for comments on:

• Whether the report supports changes to the proposed mixture and weight thresholds, and

• The potential economic impacts of any changes to the proposed definition

Public comments should be submitted to DHS by September 3^rd, 2019. Comments may be submitted via the Federal eRulemaking Portal (www.Regulations.gov; Docket # DHS-2008-0076).

Comments

It is always fun reading redacted documents. The inquisitive mind tried to figure out what data was beneath the black bars. DHS has further engaged the inquisitive mind by adding hints as to what data has been occluded.

The report is interesting in that it would seem to indicate that a much smaller quantity of ammonium nitrate is needed to make an explosive device than was considered by the NPRM. The NPRM definition limit was 25-lbs, but Sandia was able to successfully detonate devices using as little as 3-lbs and the report suggests that DHS might need to consider using a 1-lb limit.

A change of this sort (even the 3-lb limit) would greatly increase the cost of the ANSP as more AN containing-products were brought into the regulatory schema, perhaps even pharmacies and medical supply stores that sold AN based cold-packs.

It would seem that DHS is making this document public with the intent to get itself taken out of the business of regulating ammonium nitrate. The proposed regulation is already more expensive than could be justified by the cost avoidance of a Murrah Building type attack (see my discussion here). Unfortunately, this document will be used to excoriate DHS if a successful AN-based improvised explosive is used to kill a large number of people; and I am sure that the folks at DHS understood that. With that in mind, I want to congratulate DHS on the political fortitude exemplified in publishing this document. It is a valuable set of information in the debate on regulating improvised explosive precursors that could have nasty political consequences down the road.

Semiannual Regulatory Agenda Published

Yesterday the various departments of the Executive Branch published their Semiannual Regulatory Agenda’s in the Federal Register. This agenda includes their Regulatory Plan (a listing “of the most important significant regulatory actions that the agency reasonably expects to issue in proposed or final form in that fiscal year”) and the regulatory flexibility agenda (a listing of the rules that are “likely to have a significant economic impact on a substantial number of small entities”). The DHS portion of the Semiannual Regulatory Agenda can be found at 77 FR 7960-7965.

Unified Agenda Listings

As I noted in an earlier blog post the Unified Agenda  (a listing of all “current and projected rulemakings, as well as actions completed since the publication of the last regulatory agenda”) was published sometime earlier this year at www.reginfo.com. Before I discuss the Agenda published yesterday it may be helpful to look at the Unified Agenda items of principal concern to the chemical security community. The two tables below (Proposed Rule Stage and Final Rule Stage) list all of the current rule making efforts and the date of their next expected action.

Proposed Rule Stage

Agency	Next Action	Title	RIN #
DHS/OS	Final Rule – No date	Secure Handling of Ammonium Nitrate Program	1601-AA52
DHS/OS	NPRM – 06-12	Petitions for Rulemaking, Amendment, or Repeal	1601-AA56
DHS/USCG	NPRM – 07-12	Transportation Worker Identification Credential (TWIC); Card Reader Requirements	1625-AB21
DHS/USCG	NPRM – 09-12	Updates to Maritime Security	1625-AB38
DHS/USCG	NPRM – 06-12	Top Screen Information Collection from MTSA-Regulated Facilities Handling Chemicals	1625-AB64
DHS/USCG	Final Rule – No date	Reconsideration of Letters of Recommendation for Waterfront Facilities Handling LNG and LHG	1625-AB67
DHS/TSA	NPRM – 06-12	Sensitive Security Information: Disclosure in Federal Civil Court Proceedings	1652-AA54
DHS/TSA	NPRM – 05-12	Freight Railroads, Public Transportation and Passenger Railroads, and Over-the-Road Buses--Security Training of Employees	1652-AA55
DHS/TSA	NPRM – 09-12	Freight Railroads and Passenger Railroads--Vulnerability Assessment and Security Plan	1652-AA56
DHS/TSA	NPRM – 08-12	Standardized Vetting, Adjudication, and Redress Services	1652-AA61

Final Rule Stage

Agency	Next Action	Title	RIN #
DHS/USCG	Final Rule – 04-12	Revision to Transportation Worker Identification Credential (TWIC) Requirements for Mariners	1625-AB80
DHS/TSA	Notice – 06-12	Air Cargo Screening	1652-AA64

The only significant changes from the previous Unified Agenda are that DHS has issued the NPRMs for the Ammonium Nitrate Security Program and the LNG Letter of Recommendation Program. Oh, and of course the dates of the next expected action have slipped again as DHS continues to miss its regulatory mandates. One should be surprised if any of the dates listed above are actually met; really surprised.

Regulatory Plan

Only two of the rulemaking efforts listed in the tables above made it to the DHS Regulatory Plan; the Ammonium Nitrate Security Program (ANSP) and the Update to Maritime Security (MTSA II). One might expect from the listing in yesterday’s Federal Register that these would be the two rulemaking efforts most likely to be completed in the next six months or so before the next Regulatory Plan is issued, but I doubt it.

The MTSA revision is most likely to be published since it is fairly well along the regulatory process, but this has not yet been submitted to the OMB for approval. With the international implications of expected provisions of this rule the OMB approval process could be quite lengthy.

Since the public comment period on the Ammonium Nitrate Security Program NPRM was just closed in December I expect that it will be some time yet before we see a final rule published. This is especially true since this rule will have a significant impact on the agricultural community and they have the most powerful lobbying team in Washington.

I really expect that we might see some other rules from the above lists make it into the Federal Register before the AMNSP (certainly) or the MTSA II (likely) rules are published. I would think that since the Coast Guard has informally implemented some of their revisions to the TWIC requirements that the Final Rule for the TWIC Requirements for Mariners would have a high chance of getting published.

I also expect that the TSA will finally get around to publishing their very long overdue rules on security training. The only impediment to this is the fact that they have combined what used to be three separate rule making efforts (freight rail, passenger rail, and bus operators) into one rule. Even so, this should not be difficult to get published.

Additional ANSP Public Meeting Announced - Florida

Today the folks at DHS ISCD published a brief note in the ‘Latest News’ section of the CSAT Knowledge Center web page noting that they were adding another public listening session to collect public comments and concerns about their proposed rule establishing the Ammonium Nitrate Security Program (ANSP). The meeting will be held in St. Petersburg, FL on Thursday, November 19^th. It isn’t specifically stated here, but all of the procedures that apply to the earlier listening sessions almost certainly apply to this one.

UPDATED 18:21 EDT: DHS also updated the Ammonium Nitrate Security Program web site to add this 'listening session' to their list.

House HS Committee Marks-up HR 3116 – DHS Authorization

Last week in two days of hearings the House Homeland Security Committee marked-up HR 3116, the Department of Homeland Security Authorization Act for Fiscal Year 2012. The lengthy hearing was necessary because of the more than 70 offered to Chairman King’s substitute language to the bill. While the adopted amendments came from members of both parties, the final vote on passage was a very partisan vote of 20 to 12.

As I mentioned in my earlier posting about this bill there is very little that directly addresses chemical or cyber security matters; much the same can be said about the amendments that were considered. Only four of the adopted and one of the rejected amendments dealt with chemical security matters (very broadly speaking) and only two of the rejected amendments dealt with cybersecurity matters.

Ammonium Nitrate Security Program

There is only one amendment that directly addresses chemical security issues and it was introduced by Ranking Member Thompson (D,MS). The amendment would add a new section modifying the underlying authorization authority for the Ammonium Nitrate Security Program. It addresses some technical issues with the definitions of ‘ownership’ and ‘possession’ that will have to be addressed in the interminably pending DHS regulations.

More importantly it would require DHS to exempt “persons engaged in transportation activities” from coverage under this rule. This is another attempt to ensure that people already vetted under the TWIC program do not have to be re-vetted under another program. Unfortunately, the broad wording of this amendment will cause problems for the regulation drafters (who already have enough problems with the Ag folks) in that it would not technically allow for even checking of the TWIC.

Chem and Bio Testing Equipment

The issue of evaluating chemical detection equipment was addressed by an amendment introduced by Rep. Turner (R,OH). This would require DHS to establish a “test and evaluation program for commercially available chemical and biological detection equipment” {Amendment (e)(1)}. Unfortunately the copy of this amendment available on the Committee web site so it isn’t clear how Turner expects DHS S&T to pay for this program.

TWIC

Two of the five chemical related amendments dealt with the Transportation Workers Identification Credential (TWIC); one adopted and one rejected. Both amendments closely paralleled separate bills addressing the same issues.

Rep. Richmond’s (D,LA) Amendment #1VV addressed TWIC application and renewal processing. This amendment very closely mimics HR 3173, co-sponsored by Richmond. That bill and this amendment would only allow the TSA to require an applicant or renewant (okay I made up that word) to make one visit to a “a designated enrollment center except in cases in which there are extenuating circumstances” {Amendment(b)} for purposes of enrollment, activation, issuance or renewal of a TWIC. The way the amendment is actually worded a renewant would not have to physically appear having already made at least one trip to the enrollment center.

In passing this amendment the Committee is ignoring the recommendations of the GAO, TSA and the requirements of Federal Information Processing Standards (FIPS) Publication 201-1 (addressed in an earlier blog post). They are bowing to political pressure from both unions and many TWIC related companies (so support from political bases of both parties). Once again politics trumps security.

The rejected TWIC amendment was introduced by Ranking Member Thompson and would have extended the expiration dates of current TWICs until December 31, 2014 or whenever DHS implements their final TWIC Reader regulations, whichever comes first. This was nearly identical to HR 1105 introduced by Thompson. Thompson wanted to avoid possible problems that might arise if the TWIC Reader regulations require some changes in the physical TWIC.

Maritime SAR Immunity

Rep. Rigell (R,VA) introduced an amendment that would have added specific language to the suspicious activity reporting (SAR) immunity provisions of this bill that would include maritime SAR reports. The language is much different than was included in Rigell’s HR 2846 but it accomplishes the same thing.

NOTE: I must admit that I have not included any mention of a number of failed amendments that Democrats introduced that would have attempted to address their concerns with the potential profiling issues they see involved in the SARs immunity issue. We will undoubtedly see these re-introduced and rejected if and when this bill gets to the floor of the House.

Cybersecurity

Both cybersecurity related amendments were rejected on party line votes and were introduced by Rep. Clarke (D,NY). The first would have changed NPPD to the Directorate of Infrastructure Protection and Cybersecurity and establish the National Cybersecurity Division within that Directorate. There was nothing really substantive about cybersecurity issues in that amendment.

The second amendment would have required DHS to train State and local law enforcement personnel on “cybersecurity standards, procedures and best practices” {Amendment (b)(1)}. Actually this would only be a pilot training program. This appears to be primarily directed at protecting law enforcement networks rather than any other information systems. It certainly would not address control system security.

ANSP Public Presentation Now Available

Yesterday the folks at ISCD fulfilled their earlier promise of making available a copy of the public presentation being made around the country about the Ammonium Nitrate Security Program (ANSP). The link to the .PDF document can be found on the Ammonium Nitrate Security Program web site (and here of course).

As I expected this is just a copy of the 23-slides used in the presentation. ISCD has been slow to adopt video technology in support of their programs and fail to realize that slides alone are not the full measure of the information that was provided at these meetings. Or at least we hope that the presenter was more professional than just reading the slides to the audience.

Ammonium Nitrate Security Program NPRM – Record Keeping

On August 3^rd DHS published their Ammonium Nitrate Security Program (ANSP) notice of proposed rulemaking (NPRM). This blog post is part of a continuing series that looks at provisions of that NPRM. This post looks at the requirements for reporting loss and/or theft of ammonium nitrate. Previous posts in this series included:

Ammonium Nitrate Rule Announced

Ammonium Nitrate Security Program NPRM - Introduction

Ammonium Nitrate Security Program NPRM - Registration

Ammonium Nitrate Security Program NPRM – Purchaser Verification

ANSP Commentary – Importation Not Covered

Ammonium Nitrate Security Program NPRM – Record Keeping

Who Reports

Subtitle J provides the legal requirement that any AN Facility Representative or Designated AN Facility POC with knowledge of a theft or unexplained loss must report that loss to Federal law enforcement authorities within 24 hours. Since it is unlikely that these individuals will have total first-hand knowledge of everything that goes on at the AN Facility, the facility management is required to have procedures in place to ensure that internal reports of theft or loss are forwarded to the AN Facility Representative or POC in a timely manner.

Subtitle J did not provide a requirement for AN Purchasers or agents acting on their behalf to report theft or loss of AN so DHS cannot require them to do so in this regulation. DHS does, however, take the opportunity in the preamble to encourage “them to do so using the same procedures that AN Facility personnel would use” (76 FR 46933).

Reporting to ATF

Since ISCD, which will administer the ANSP, does not have criminal investigative personnel on staff, it wouldn’t make much sense to have AN theft or loss reports go directly to them. This regulation would require the report to be made to the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF). This reporting would follow standard ATF procedures; requiring an initial telephonic notification with follow-up reporting to be conducted by submitting a completed form via FAX or US Mail.

While the underlying law does not require AN Facilities to report the theft or loss of ammonium nitrate to local authorities in addition to the required Federal notification, DHS does encourage facilities to make the local report as well. From a practical perspective, in most cases local law enforcement personnel will be able to respond to the crime scene quicker and may be able to intercept the perpetrators before the ATF personnel are even able to respond to the scene.

How Much to Report

In determining the quantity threshold that requires reporting, DHS looks at two different situations. The first situation is where there is a clearly defined theft of AN; any amount stolen would have to be reported. The second situation, where there is a known or suspected loss of AN due to an unidentified cause, the situation becomes more complicated.

That complication arises because AN is frequently shipped in bulk. Bulk shipping losses are a well-known problem in the industry and the amount that is routinely lost during these shipments varies on the type transportation used, the length of the transport, the weather and a number of other issues. So DHS will require loss reporting when “those losses deviate from the amount of loss that typically occurs during routine production, storage, transportation, or use of ammonium nitrate” (76 FR 46934).

Commentary

I understand the Department’s reasoning in selecting the ATF as the designated agency to handle the investigation of ammonium nitrate thefts and losses. They are typically the lead agency in matters relating to explosives. I do think, however, that DHS has missed an important intelligence gathering opportunity by the way they handle the reporting process.

The initial telephonic report to ATF is probably the way to go with that portion of the process. The follow-up written report would probably be better off submitted through the secure ANSP web site. The site will already be established and the AN Facility personnel will already be familiar with it. If the reporting format were established as tool on that web site (akin to the tools in the CSAT website used by the CFATS program) the information could be electronically sent directly to ATF. At the same time it could be sent to the intelligence folks at DHS for further analysis. Of course I would prefer to see it sent to a yet to be established Chemical Security Fusion Center, but that is fodder for another blog post.

A more fundamental problem exists with the loss reporting requirements. I fully understand the problem with ‘normal losses’ incident to transportation and handling. The problem is that without defining ‘normal losses’ DHS is setting up a situation where they will, in effect, be encouraging facilities to use the widest possible definition of that terminology to avoid the headaches associated with loss reporting.

The only way that I see around this problem is to add a requirement for a routine, periodic report on ‘normal losses’ at the facility. Again, a reporting tool on the ANSP secure web site would help to make this requirement as painless as possible. This would ensure that each facility was keeping the records necessary to be able to define what was a ‘normal loss’ that did not require reporting to the ATF.

Chemical Security Webpages Updated for ANSP

Yesterday the DHS Industrial Security Compliance Division folks updated their Critical Infrastructure: Chemical Security web page with information about the recently published Ammonium Nitrate Security Program (ANSP) notice of proposed rulemaking (NPRM). The update includes a one-sentence summary of the ANSP and a link to the DHS Ammonium Nitrate Security Program web page.

That page and its associated Notice of Proposed Rulemaking page provide a broad overview of the ANSP and the NPRM. There is no real new information that hasn’t already been discussed here or on other blogs, but it does provide a web presence for the new program that could see future development as the rulemaking progresses.

Page Dating Complaint: Once again I am seeing what appears to be misleading ‘last reviewed/modified’ dates on the bottom of the two new web pages. The date on the ‘Chemical Security’ page properly reflects yesterday’s publication. The 8-3-11 page date on the NPRM page does reflect the publication date of the NPRM and the page may have been published on that date but yesterday was the first date there was a public link to the page. The 7-28-11 date on the ANSP page pre-dates the publication of the NPRM that is referred to in the past tense on the page. That page may have been approved on that date, but that date is a week earlier than the final version of the NPRM had even been submitted to the Federal Register people for publication. I would prefer to see these dates reflect their actual publication dates for the initial posting of the web page.

Ammonium Nitrate Security Program NPRM – Record Keeping

On August 3^rd DHS published their Ammonium Nitrate Security Program (ANSP) notice of proposed rulemaking (NPRM). This blog post is part of a continuing series that looks at provisions of that NPRM. This post looks at the various record keeping requirements outlined in the NPRM. Previous posts in this series included:

Ammonium Nitrate Rule Announced

Ammonium Nitrate Security Program NPRM - Introduction

Ammonium Nitrate Security Program NPRM - Registration

Ammonium Nitrate Security Program NPRM – Purchaser Verification

ANSP Commentary – Importation Not Covered

The NPRM proposes requiring the maintenance of three different types of records; records of sales/transfers, records of purchaser verifications, and ANSP compliance records. The records keeping provisions apply to AN Facilities not AN Purchasers with the designated AN Facility Representative(s) responsible for compliance with those requirements.

Records of Sales/Transfers

Section 31.315 of the proposed rule would require that a record of each sale/transfer of ammonium nitrate would be maintained for a period of two years. The information required for each sale would include (76 FR 46953):

• Date of sale/transfer;

• Form and amount of payment;

• Quantity of ammonium nitrate sold/transferred;

• Type of packaging;

• Delivery location;

• The name, address, telephone number, AN Registered User Number, and photo identification document information of the AN Purchaser to whom it was sold/transferred; and,

• If the AN Purchaser uses an agent at the point of sale, the name, address, telephone number, and photo identification document information of the agent acting on behalf of the AN Purchaser.

DHS is considering requiring the inclusion of photo copies of any photo identification documents in the sales documentation record.

Records of Verification

There are two different types of verifications that facilities may have to perform for each AN sale/transfer. First, if the physical transfer is made to an Agent instead of the Purchaser, a record of how the facility confirmed that the person was authorized to act as an AN Agent in accordance with §31.310(b) (see Purchaser Verification blog post).

For all sales/transfers, DHS will require AN Facilities to maintain records of the Purchaser verification process including verifying the currency and authenticity of the Purchasers AN Registered User Number and the identity of the Purchaser and Agent. The Department is considering including in this requirement the maintenance of copies of printouts from the Department’s electronic verification process.

ANSP Compliance Records

In addition to the sale/transfer transaction records discussed above the AN Facility would be required to maintain copies of:

• AN Registered User Number certificates for each of the AN Facility Representatives, the AN Facility POC and any other AN Seller at the facility;

• Reports of theft or loss of AN;

• Reports showing reconciliation of sales/transfer and inventory; and

• Any correspondence or orders from DHS concerning the Ammonium Nitrate Security Program (ANSP).

Each AN Facility would be required to take ‘reasonable actions’ to protect the above records and to make them available for inspection by DHS. In the discussion of reasonable actions DHS describes typical actions including “storage in locked file cabinets for paper recordkeeping or password-protecting files for electronic recordkeeping” (76 FR 46933). During prior notice inspections facilities would be expected to have the records available on site and must be produced within four hours of the start of an unannounced inspection.

Ammonium Nitrate Security Program NPRM – Purchaser Verification

On August 3^rd DHS published their Ammonium Nitrate Security Program (ANSP) notice of proposed rulemaking (NPRM). This blog post is part of a continuing series that looks at provisions of that NPRM. Previous posts in this series included:

Ammonium Nitrate Rule Announced

Ammonium Nitrate Security Program NPRM - Introduction

Ammonium Nitrate Security Program NPRM - Registration

The whole point of the Ammonium Nitrate Security Program is to ensure that AN is not transferred to someone with known or suspected ties to terrorism. The registration program starts this process, but the real success of the program depends upon the verification of the registration status of all purchasers of covered amounts of AN. This entails checking both that the registration is current and valid as well as checking the identity of the purchaser or agent of the purchaser.

Definition of ‘Transfer’

Generally speaking a transfer occurs when the physical possession or ownership of AN changes hands. This may be as a result of a sale or other business transaction, but that is not a requirement. Movements within a single AN facility are not covered; so material handlers within a facility are not required to be registered. Transfers between AN Facilities, regardless of ownership, would be regulated.

Application of AN to the soil does not constitute a transfer under this proposed rule. Thus, an applications service provider does not need to verify the registration status of the owner of the property where the AN is being applied. The preamble makes it clear that DHS does not “believe that ammonium nitrate fertilizer is likely to be misused in acts of terrorism after it has been applied to agricultural property” (76 FR 46925).

The NPRM proposes rules that would deal only with transfers within the United States. A facility that exports AN does not need to verify the registration of a person outside of the country. Similarly, verification would not be required for the importation of AN, but the transfer from the importer to another person or entity would require the verification process would be completed.

The physical transfer of AN typically requires the service of a transport operator. If that transport operator works for the originating facility they need to be registered as an AN Seller (see yesterday’s blog on Registration). A transport operator that works for a registered AN Purchaser is an AN Agent and does not need to be registered with and vetted by DHS. The AN Seller loading the AN Agents vehicle would need to verify that the operator is an agent of the purchaser and verify the operators identity. An independent transportation operator “would be regulated as both AN Purchasers and AN Sellers under the Department's proposed rule” (76 FR 46927)

Identity Verification

The AN Seller would be required to verify the identity of each AN Purchaser or AN Agent involved in the transfer. If the AN Purchaser does not use an agent to take possession, the AN Seller would be required to verify the identity by physically checking the photo ID of the AN Purchaser. The NPRM explains that the photo ID requirements would be similar to those required by 49 CFR 1560.3 for the Secure Flight Program. An AN Agent’s identity would be verified in the same manner. DHS will not be providing a photo ID as part of the AN registration process.

If a purchaser used an AN Agent to take physical possession of the AN, the AN Seller would be required to verify the AN Purchaser’s identify through DHS. Verification would be done via the electronic Purchaser Verification Portal or by phone via the Purchaser Verification Call Center. In either case the Purchaser would have to provide their name (as registered), photo ID number (as registered) and their AN Registered User Number. This obviously would require a purchaser to update their registration when their identity document (driver’s license for example) is changed/updated.

When an AN Agent takes possession of AN on behalf of an AN Purchaser, the AN Seller also has to verify that the person is acting as an AN Agent. An AN Purchaser can either verify this orally to the AN Seller prior to each transfer or register the name of the AN Agent with DHS as part of the Purchaser’s registration process. In the second case the Seller would have to confirm the AN Agent’s status via either of the two verification methods discussed above.  

Registration Verification

Every transfer would have to be proceeded by a verification of the AN Purchaser’s registration. The AN Seller would be responsible for ensuring that the purchaser is registered, and the registration is current. The AN Purchaser would provide their AN Registered User Number to the seller. That number would then be entered into the on-line DHS Purchaser Verification Portal or verified by phone through the Purchaser Verification Call Center. Confirmation via either of these two methods would meet the registration verification requirements of this proposed rule.