DHS Publishes Regulatory Agenda

Today DHS published their section of the Administration’s Semiannual Regulatory Agenda in the Federal Register (82 FR 40290-40299). This provides some additional information on some of the regulatory activities planned by the Administration that were listed in the Unified Agenda last month.

Items that may be of specific interest to readers of this blog include:

• Chemical Facility Anti-Terrorism Standards (CFATS);

• Ammonium Nitrate Security Program;

• Updates to Maritime Security; and

• Security Training for Surface Transportation Employees

There really is not much in the way of new information here. DHS has provided ‘expected dates’ for the next rulemaking action for the CFATS update (10-17) and the TSA security training rule (09-18). Since these ‘expected dates’ have little or no relationship to actual future actions these dates cannot really be classified as ‘new information’.

The only really new information here is that the Coast Guard’s Updates to Maritime Security has been officially removed from the regulatory agenda. This rulemaking activity has never really gone anywhere, bouncing back-and-forth between the Current Agenda and the Long-Term Agenda on the Unified Agenda. Even the abstract that was listed in the last Obama Administration Unified Agenda was short on specifics of what the rulemaking would have included.

EO 13650 Update Webinar

As I mentioned last week the Chemical Safety and Security Working Group held a webinar earlier today to update the progress that has been made by EPA, DHS, OSHA and ATF on implementing the plan that they presented to the President last year at the conclusion of their initial work on EO 13650 Improving Chemical Facility Safety and Security.

I have the same minor complaint about this webinar as I had about the one they held last November; the four presenters basically read the information that I have already pointed out on the OSHA web site. The Working Group did not make available a copy of the slides used for the presentation, but there wasn’t much on them in any case. I would like to thank the folks over at the TaoCompliance web site for making a set of the slides available.

OSHA-EPA Questions

The question and answer portion of the webinar provided some interesting conversations between the regulators and the regulated community and a couple of environmental activists. There were some interesting points made about the changes being made to the PSM (OSHA) and RMP (EPA) regulations that will be coming about because of the EO. What was missing from that conversation, however, was any details about the two subjects of most interest; inherently safer technology and REGAGEP. The most commitment we heard on those topics came from Mathy Stanislaus was that the EPA expected to have a formal guidance document on IST available in the fall of 2016.

The biggest disappointment came when Lisa Long (for OSHA) reminded folks that it normally takes OSHA 6 to 8 years to field a new standard. This was in response to a direct question about when OSHA expected to have their new PSM NPRM published. To be fair she did not say that the PSM update would take 6 to 8 years; she was using those figures to call for patience.

CFATS Questions

I did get a chance to ask David Wulf (Director of Infrastructure Security Compliance Division at DHS) about two chemical security issues; the final rule on ammonium nitrate security (carefully not mentioned on the OSHA update web site) and the CFATS personnel surety program (PSP). David gave the same answer that we have heard for the last two or three years; the final rule is being reviewed within the Department. In the past that has been clarified to mean outside of ISCD. So essentially the politicians and lawyers are playing with it.

The most surprising answer came with respect to my question about the PSP. David said that he expected OMB (meaning their Office of Information and Regulatory Affairs - OIRA) to approve the ICR in the near future. What escaped notice of most people on the webinar is that he could have only been referring to the controversial information collection request that was submitted to OIRA in February of last year.

I was pretty sure that the personnel surety program requirements in HR 4007 would have pre-empted that ICR. I’m absolutely certain that the authors of HR 4007 intended it to pre-empt that ICR. I am going to have to go back this weekend and make a detailed comparison between the two to see how Wulf intends to pull this off.

One thing that he did promise, and again many in Congress and industry will not be happy with this, was that once the ICR was approved ISCD would publish a notice in the Federal Register about how facilities would be implementing the PSP in accordance with that ICR (and presumably the new CFATS statute). Many in industry have been expecting this to be a rule making activity requiring the publish and comment process. Wulf (and most people at DHS) have always expected the current language of 6 CFR 27.230(a)(12) to cover the PSP requirements so that no change to the regulation is needed.

And Wulf did mention in his prepared comments that the CFATS regulation update process that was started last year with the publication of the ANPRM. He noted that ISCD is still reviewing those comments, the comments at the poorly attended public meetings, and is moving forward with preparing the NPRM. No word on when to expect it and I would have been very surprised if there had been any commitment on even a rough date.

NOTE: The audio for this webinar is now available at  https://share.dhs.gov/p7c2wwd99se/. The slides were not worth much so this audio file should pretty much duplicate the webinar except for the ability to ask questions. Updated 6-26-15 9:45 CDT

DHS Publishes Semiannual Regulatory Agenda

Today DHS (along with the other major Executive Branch organizations) published their Fall 2012 Regulatory Agenda in the Federal Register (78 FR 1586-1593). This is supposed to include a brief explanation of those items on the Department’s Unified Agenda which is likely to have a significant economic impact on a substantial number of small entities.

Ammonium Nitrate Rule

As I expected the Ammonium Nitrate Security Program does make the Department’s list of significant rulemakings (RIN 1601–AA52), under the “Long Term Actions” category. The only new information here is that DHS does not expect to publish a final rule for this program until December of 2013. That would be just about two years after the close of the comment period on the NPRM for this rulemaking; if that date is actually met. There is (as expected) no explanation why this rulemaking was left off the 2012 Unified Agenda.

Coast Guard Rules

Only one of the four Coast Guard rules that I had identified as being of specific interest to readers of this blog made it to the DHS list of significant rulemakings, the Updates to Maritime Security (RIN 1625-AB38) rulemaking. As I noted in an earlier blog post , the Coast Guard expects (hold your breath on this timing) to publish their NPRM on this rule in April of this year. This NPRM was first ‘expected to be published’ in March of 2010.

TSA Rules

The General Aviation Security rulemaking (RIN 1652-AA53) is the only TSA rule to make it to the significant rulemakings list that might be of specific interest to the chemical security or cybersecurity communities. Actually including that here is a bit of a stretch, but I did need to have something to show for the TSA. So it was either this or the Aircraft repair station security rulemaking.

Significance – None

The whole publication of this Unified Agenda and its associated regulatory plans is really an exercise in bureaucratic back scratching. Rules are routinely proposed and implemented without making it to the Agenda. The publication dates from the Agenda are almost never met. And rules disappear from the Agenda without notice or reason. But, it is the closest thing to a regulatory plan that the Executive Branch actually has.

Ammonium Nitrate Rule Announced

Today DHS officially announced the publication of their Ammonium Nitrate Security Program. Unfortunately, the publication won’t take place until tomorrow. For those interested an unofficial copy of the notice of proposed rulemaking (NPRM) can be found at the Electronic Public Inspection Desk site of the Federal Register web site.

Needless to say it will take a little while to fully review this NPRM. Stay tuned…

Ammonium Nitrate Rule Sent to OMB

The RegInfo.gov web site announced that DHS had submitted the notice of proposed rulemaking (NPRM) for the long overdue ammonium nitrate security regulations to the Office of Management and Budget for approval. No telling how long it will take for the OMB to finish this review (weeks to months), but at least we have public acknowledgement that the rulemaking process is actually moving forward.