HR 2825 Amended and Approved in Committee

Last week the House Homeland Security Committee held a markup hearing on HR 2825, the DHS Authorization Act of 2018 [corrected date 6-19-17 0710 EDT]. The Committee adopted a large number of amendments, including substitute language.

Substitute Language

The original bill was extremely light in its coverage and was obviously missing some titles. The substitute language offered by Rep. McCaul (R,TX) substantially enlarged and expanded the coverage of the bill. New sections in the substitute language that may be of specific interest to readers of this blog include:

§403. Cyber at ports.

§409. Repeal of interagency operational centers for port security and secure systems of transportation.

§572. Surface transportation security assessment and implementation of

risk-based strategy.

§577. Surface transportation security advisory committee.

§583. Study on surface transportation inspectors.

§584. Security awareness program.

§585. Voluntary use of credentialing.

§586. Background records checks for issuance of hazmat licenses.

§587. Recurrent vetting for surface transportation credential-holders.

§588. Pipeline security study.

§589. Repeal of limitation relating to motor carrier security-sensitive material

tracking technology.

§620. Cyber preparedness.

§642. Medical Countermeasures Program.

The provisions I discussed in my post about the original bill remain essentially unchanged.

Maritime Security

Title IV of the substitute language addresses maritime security issues. Most of the provisions found in this title were included in HR 2831, the Maritime Security Coordination Improvement Act that I reviewed yesterday. That bill includes provisions not seen in this bill, so it is likely to continue forward. I suspect that the duplicate provisions in this bill are those that McCaul considers the most important.

The cybersecurity provisions that I discussed in HR 2831 are included in this bill (§403) essentially unchanged.

Surface Transportation Security Studies

The substitute language contains a new Title V, Subtitle G (sections 571 thru 589) that addresses a number of surface transportation security issues. Many of them deal with various study and report requirements. There are two studies outlined in this subtitle that may be of specific interest to owners and operators of surface transportation organizations and activities.

Section 583 would require the Government Accountability Office (GAO) to conduct a study looking at potential duplications or redundancies between TSA and DOT “relating to surface transportation security inspections or over sight” {§583(1)}. While TSA has been given the responsibility for overseeing all transportation security issues, its main (some would say almost exclusive) focus has been on passenger air transportation security. As a result, the DOT modal agencies have continued to oversee the pre-TSA security requirements that were initiated by the modal agencies. There exists a very real potential that this study could lead to the disbanding of the TSA surface transportation security program as duplicative and ineffective.

Section 588 requires a separate GAO study of the TSA/DOT oversight conflict in the pipeline security arena. Of particular interest to readers of this blog is the specific inclusion of cybersecurity issues in the study parameters. The GAO is tasked with looking at how the current memorandum of understanding between DHS and DOT adequately delineates the responsibility for {§588(a)(1)}:

• Protecting against intentional pipeline breaches and cyber-attacks;

• Responding to intentional pipeline breaches and cyber-attacks; and

• Planning to recover from the impact of intentional pipeline breaches and cyber-attacks.

The big problem here is that most of the activities that are used to respond to a pipeline breach are the same for both intentional and accidental breaches. Given the fact that accidental breaches are much more common than intentional breaches, the DOT pipeline safety folks will have much more practical experience in this field.

The one area that is not specifically identified in the §588 requirements is having the GAO study identify if either PHMSA or TSA have enough people with the requisite skill and background in control system security to deal with cyber-attacks.

Other Amendments

An amendment offered by Rep. Thompson (D,MS) amended the new requirement for surface security awareness training outlined in §584. The Thompson amendment would reiterate that this new requirement would not “replace or affect in any way the security training program requirements” specified in 6 USC sections 1137, 1167, and 1184. Readers of this blog will remember that TSA finally published a notice of proposed rulemaking (NPRM) on those requirement last December. This amendment was adopted by voice vote.

An amendment offered by Rep. Langevin (D,RI) would add a new section to the bill that would require the FEMA Administrator to conduct a study on the use of grant funds awarded pursuant to 6 USC §604 (Urban Area Security Initiative) and §605 (State Homeland Security Grant Program) to support efforts to prepare for and respond to cybersecurity risks and incidents (as such terms are defined in 6 USC 148. Readers should see my discussion on HR 2831 on why the reference to 6 USC 148 ignores control system security issues. This amendment was adopted by voice vote.

Moving Forward

The amended substitute language on this bill passed by a voice vote. Even with the Democrats losing party line votes on six amendments, there is still substantial bipartisan support within the Committee for the amended bill. If McCaul can get buy in from the House leadership (including the chairs of a number of other potentially interested committees) to bring this bill to the floor, it is almost certain to pass. Convincing the Senate leadership to bring the bill to the floor in that body will be another intra-party, political issue.

Coast Guard Announces NMSAC Meeting

Today the Coast Guard published a meeting notice in the Federal Register (82 FR 16407-16408) concerning an upcoming meeting of the National Maritime Security Advisory Committee (NMSAC). The two-day meeting will be held on Aprils 25^th, 2017 in Norfolk, VA.

The agenda items of potential interest to readers of this blog includes:

• Unmanned aerial vehicles;

• Extremely hazardous cargo strategy; and

• Cybersecurity strategy

Congressional Hearing – Week of 6-19-16

Both the House and Senate will be in Washington again this week. There is less than a month left now before the summer recess; we will have to wait and see how successful Congress is in getting the spending bills completed. There will be two markup hearings (including the DHS spending bill) and hearings on military cyber operations.

DHS Spending

On Wednesday the House Appropriations Committee will be holding their markup of the FY 2017 DHS spending bill. This hearing was originally scheduled for last week.

Military Cyber Operations

On Wednesday the House Armed Services Committee will be holding a hearing on Military Cyber Operations. The witness list includes:

• Thomas Atkin, Office of the Secretary of Defense

• LTG Kevin McLaughlin, U.S. Cyber Command

• BG Charles Moore, Joint Staff, J-39

Maritime Security Markup

On Thursday the House Committee on Transportation and Infrastructure will hold a markup hearing on three bills, including the as of yet unintroduced “Miscellaneous Maritime Transportation Amendments Act of 2016”. I am guessing that there will be some maritime security provisions.

On the Floor

On Tuesday the House will take up two bills of interest to readers of this blog under the suspension of rules provision. This means limited debate, no amendments and a 2/3 vote for passage. This generally means that the leadership considers the bill non-controversial. The two bills of specific interest are:

• HR 5388, the Support for Rapid Innovation Act of 2016 (Sponsored by Rep. John Ratcliffe / Homeland Security Committee); and

• HR 5389, the Leveraging Emerging Technologies Act of 2016.

HR 3586 Introduced – Maritime Security

Last week Rep. Miller (R,MI) introduced HR 3568 the Border and Maritime Coordination Improvement Act. The bill would add a number of new sections to the Homeland Security Act of 2002 dealing with maritime security issues. Only a few of those provisions will be of specific interest to readers of this blog.

Joint Task Forces

The bill adds a new §420A to the Homeland Security Act that establishes a number of new border security joint task forces to “conduct joint operations using Department component and office personnel and capabilities to secure the international borders of the United States” {new §420A(a)}.

It provides for three specific task forces (East, West, and Investigation). The bill also provides authority for the Secretary to establish a number of other task forces, including one specifically to deal with cybersecurity {new §420A(i)(4)}. There are no details provided on what the purpose of a cybersecurity joint task force or how it might be constituted.

New TWIC Requirements

A new §420D is added to address concerns about Transportation Workers Identification Credentials (TWIC) being issued to non-US citizen applicants. The purpose of the new procedures outlined in this section are to ensure that “an individual who is not lawfully present in the United States cannot obtain or continue to use a Transportation Worker Identification Credential” {new §420D(a)}.

The language would require the Secretary to publish a list of documents that would provide acceptable proof that an applicant’s identity and legal presence in the United States. Additionally, a training program would have to be established to ensure that personnel processing TWIC applications from non-US citizens could detect fraudulent documents.

Finally the expiration of TWICs issued to non-US citizens would be changed so that they would expire on “the date of its expiration, or on the date on which the individual to whom such a TWIC is issued is no longer lawfully present in the United States, whichever is earlier” {new §420D(c)}.

Moving Forward

Miller is the Chair of the Border and Maritime Security Subcommittee of the House Homeland Security Committee and the Committee Chair, Rep. McCaul (R,TX) is a co-sponsor of this bill. This bill will certainly move through the committee process. In fact, it is one of the bills scheduled to be marked up by the full Committee on Wednesday.

There is supposed to be substitute language for this bill offered by Miller, but that language has not yet been published. I suspect that this will be the only amendment offered to this bill and it will almost certainly be approved by a voice vote. If that is the case this bill will most likely move to the floor of the House by the end of the year under suspension of the rules.

Commentary

The adding of cybersecurity to the list of task forces that could be formed by the Secretary is kind of odd. The only other proposed or suggested task force that is not specifically designed to look at border control issues is suggested to be established in response to a major terrorist incident.

I suppose that since this bill established the bureaucratic guidelines for the establishment of joint agency task forces within the Department, it does make a certain amount of sense, but burying the provision in the US Customs Services portion of the statute still raises more questions then it answers. It will be interesting to see how/if this is specifically addressed in the Committee Report on this bill.

The TWIC provisions in this bill fall under the heading of ‘what has taken so long?’ I can see this providing some problems for people who are working here under renewable immigration documents. It is going to be costly for them to renew their TWIC more frequently than US citizens, but I don’t suspect that that was really part of the consideration for this measure.

I was kind of disappointed that this opportunity wasn’t taken to specifically include authorization for TWICs to be issued to employees of CFATS covered facilities. That would be a significant expansion in the number of TWICs to be issued, but I suspect that we are going to be seeing this happen in any course as the CFATS personnel surety program starts to ramp up. Specifically authorizing this would allow for a coordinated expansion of the program rather than a reactive expansion of capability in response to an ‘unexpected’ increase in the number of applications.

Update on Coast Guard Mission Hearing

As I mentioned yesterday the Coast Guard and Maritime Transportation Subcommittee of the House Transportation and Infrastructure Committee will be holding a hearing on “How is the Coast Guard Meeting Its Mission Goals?” The Subcommittee web site has some additional information available, including a witness list and a staff background memo.

The current witness list shows just one person; Vice Admiral John P. Currier, Vice Commandant, United States Coast Guard. I’m more than a little surprised that there is not a representative from the DHS OIG’s office since their report on the Coast Guard’s FY 2012 Mission Performance forms a major part of the background memo for this hearing.

I had mentioned in my earlier post that I didn’t expect that the maritime security mission of the Coast Guard would form a major portion of the hearing investigation. Looking at the Staff Memo and the OIG’s report, I am not so sure. The Memo notes that the CG had not met 12 of its 23 mission objectives for FY 2012 (up from 9 unmet objectives in FY 2011). Five of those failed objectives came from the Ports, Waterways and Coastal Security Mission of the CG. The table below shows the six mission objectives covered in that Security Mission.

Measure	FY 12 Met	FY 12 Not Met	FY 11 Met	FY 11 Not Met
Percent Reduction of All Maritime Security Risk Subject to USCG Influence		X	X
Percent Reduction of Maritime Security Risk Resulting from USCG Consequence Management		X	X
Percent Reduction of Maritime Security Risk Resulting From USCG Efforts To Prevent a Terrorist From Entering the United States		X		X
Percent Reduction of Maritime Security Risk Resulting From USCG Efforts to Prevent a Weapon of Mass Destruction From Entering the United States Via Maritime Means		X		X
Annual MTSA Facility Compliance Rate With Transportation Worker Identification Credential Regulations	X		X
Security Compliance Rate for High Risk Maritime Facilities		X		X

The ‘Met’ vs ‘Not Met’ metric is frequently misleading as it tends to gloss over the details. For instance, the OIG report notes that the goal for the first measure was a 44% reduction in risk and the Coast Guard ‘only’ achieved a 36% reduction. The OIG’s report noted (pg 25) that: “The deviation from the target was slight and did not affect overall program performance.”

The question for this hearing will be whether or not the congresscritters look at the simple metrics or the details. Without an OIG representative available to explain the details it is likely that Admiral Currier will get castigated more than he will be allowed to explain what the numbers actually mean.

CG to Fill Maritime Security Committee Vacancies

The Coast Guard published a notice (78 FR 11670-11671) in Monday’s Federal Register (available on-line today) soliciting applications for membership in the Eastern Great Lakes Area Maritime Security Committee (AMSC) and its subcommittees.

The notice states that the AMSC “shall assist the Captain of the Port in the development, review, update, and exercising of the Area Maritime Security (AMS) Plan for their area of responsibility”. Additionally, according to 46 USC 70112(2)(a)(1)(B)(i), the AMSCs are to “advise, consult with, report to, and make recommendations to the [DHS] Secretary on matters relating to maritime security.

A total of six openings are listed in the notice. They include:

• Northeast Ohio Region (3 members);

• Western New York Region (1 member); and

• St. Lawrence Region (2 members).

One of the openings in the Northwest Ohio Region is specifically reserved for a representative of an MTSA regulated facility, while one of the other openings may be filled by such a representative. Both openings in the St. Lawrence region may be filled by MTSA facility representatives.

Applications need to be submitted to the Captain of the Port, Buffalo by March 21^st, 2013. They should be sent to:

Captain of the Port Buffalo

Attention Regional Executive Coordinator

1 Fuhrmann Boulevard

Buffalo, NY 14203-3189

CG Moving Security Zone Temp Final Rule

Today the Coast Guard published a temporary final rule in the Federal Register (78 FR 261-263) concerning the establishment of moving security zones around certain types of vessels navigating a specific 18 mile stretch of the lower Mississippi River from January 1^st (oops that was two days ago) thru March 31^st, 2013. Now, ‘moving security zones’ are not unusual; they are a very common way for establishing a security ‘perimeter’ around a high-risk vessel, but this rule seems to be a little bit odd.

Escorted Vessels

According to the summary the moving security zones would be required to protect vessels “deemed to be in need of escort protection by the COTP New Orleans for security reasons” (78 FR 261). Later in the temporary rule it explains that the vessels potentially included are:

• High capacity passenger vessels;

• Vessels carrying certain dangerous cargoes;

• Tank vessels constructed to carry oil or hazardous materials in bulk; and

• Vessels carrying liquefied hazardous gas.

It further explains that the moving security zones would help the Coast Guard to protect these vessels and the public from “destruction, loss, or injury from sabotage or other subversive

acts, accidents, or other causes of similar nature”. All of this holds together nicely, they are potentially high-threat vessels that would need additional protection in a high-threat environment.

Threat Assessment

Temporary rules of this sort are not unusual for certain types of high-profile event near navigable waterways. There was a similar temporary rule established last summer for the Republican National Convention in Tampa. That rule clearly spelled out the event that necessitated the restrictions and limited the time to the duration of the event. That has not been done here.

We are only told that “a risk evaluation conducted on December 4, 2012” necessitated this three month long increase in security along an 18 mile stretch of the Mississippi. With the Coast Guard not explaining what event necessitated the risk evaluation we can only assume that it is classified. What kind of classified three month long event that would affect an 18 mile stretch of one of the most heavily traveled rivers in the United States that one can’t even mention the existence of is beyond me.

Protest Activities

To make things even odder there is an interesting paragraph in the discussion of the regulatory analysis conducted by the Coast Guard entitled “Protest Activities” (78 FR 262). It says:

“The Coast Guard respects the First Amendment rights of protesters. Protesters are asked to contact the person listed in the “FOR FURTHER INTFORMATION CONTACT” section to coordinate protest activities so that your message can be received without jeopardizing the safety or security of people, places or vessels.”

Now there was a similar paragraph in the Tampa Bay temporary rule as well. In fact, from reading the news accounts at the time, it seemed like the Coast Guard was most concerned with stopping the protestors from causing problems at the Convention. That was probably a slight exaggeration, but it was certainly a potential concern.

So what we have here is a possibly classified, three-month long event along an 18 mile stretch of the Mississippi that the Coast Guard suspects will draw protest activities. This keeps getting more interesting.

Public Comments

Like most of these temporary final rules, there is no time between to publication notice  and the effective date of the rule, in this case a negative two days, to allow for a comment and response action. Comments may still be submitted thru the Federal eRulemaking Portal (www.Regulations.gov; Docket # USCG-2012-1078). Anyone with questions about the rule may call ((504) 365-2392) or email (Kenneth.E.Blair@uscg.mil) Lieutenant Commander (LCDR) Kenneth Blair, Sector New Orleans, U.S. Coast Guard.

Closer Look at 2012 DHS Rules List

As I mentioned in my earlier blog post the OMB’s Office of Information and Regulatory Affairs (OIRA) recently update their Unified Agenda and the associated agency rule lists. Today I would like to take a closer look at the rulemaking actions on the DHS Rule List that would be of potential interest to readers of this blog.

Classified Information

The one new rulemaking listing in this List deals with the DHS regulation of Classified National Security Information (RIN 1601-AA68). According to the Abstract:

“The Department of Homeland Security (DHS) is revising its procedures for managing classified national security information. DHS is updating its regulations to incorporate new and revised procedures pursuant to Executive Order 13526, ‘Classified National Security Information.’ Further, DHS is delegating to the Chief Security Officer of DHS the responsibility of serving as the ‘Senior Agency Official’ pursuant to Executive Order 13526.”

Apparently the folks at DHS are intending to go directly to issuing a Final Rule in May, 2013 without the intermediate step of issuing a notice of proposed rulemaking. This methodology is allowed if the rule only affects internal actions in the Department and has no significant impact on State, local or tribal governments of private citizens. We will just have to wait and see what the Final Rule actually says.

Maritime Shipping Safety

We have two rulemakings from the Coast Guard dealing with maritime shipping safety that remain on the DHS Rule List. They are:

• Cargo Securing on Vessels Operating in U.S. Waters (RIN 1625-AA25)

• Bulk Packaging To Allow for Transfer of Hazardous Liquid Cargoes (RIN 1625-AB63)

Neither of these has a statutory mandate for date of issue. The Coast Guard intends to issue a supplemental Cargo Securing NPRM in April and a final rule for the Bulk Packaging rule in January.

Maritime Security

There are two Coast Guard rulemakings on the List that deal with MTSA issues. They are:

• TWIC Card Reader Requirements (RIN 1625-AB21)

• Updates to Maritime Security (RIN 1625-AB38)

The Card Reader rule has been long delayed, partly due to problems the TSA had with their field trials of various card readers. The final rule was required to be published in August of 2010 and the Coast Guard is now estimating that the notice of proposed rulemaking will be published in February. As I noted in an earlier blog posting this rule has already been sent to the OMB for review so this date may not be too far out of line, but that still leaves us at least a year before the final rule is published.

According to the Abstract for the Updates to Maritime Security rulemaking this would be the first major update to Subchapter H of 33 CFR since the MTSA regulations were adopted. The Abstract explains that:

“The proposed changes would further the goals of domestic compliance and international cooperation by incorporating requirements from legislation implemented since the original publication of these regulations, such as the SAFE Port Act, and including international standards such as STCW security training. This rulemaking has international interest because of the close relationship between subchapter H and the International Ship and Port Security Code (ISPS).”

The Coast Guard is planning on issuing the NPRM for this rulemaking in April of 2013.

General Aviation Security

TSA is still struggling to overcome resistance to rules governing the security of general aviation aircraft. Their NPRM that was published in 2008 met so much opposition from the public and Congress that TSA will be issuing a ‘supplemental’ NPRM that will almost certainly be a total re-write of their General Aviation Security and Other Aircraft Operator Security rulemaking (RIN 1652-AA53). They expect to issue their supplemental in August of 2013.

Surface Transportation Security Training

A while back TSA rolled three congressionally mandate rulemaking requirements into a single rulemaking, Security Training for Surface Mode Employees (RIN 1652-AA55). The thee mandated publication dates were in 2007 and 2008 and TSA has yet to produce their first public version of the rule that would “propose general requirements for the owner/operators of a freight railroad, public transportation system, passenger railroad, and an over-the-road bus operation determined by TSA to be high-risk to develop and implement a security training program to prepare security-sensitive employees, including frontline employees identified in sections 1402 and 1501 of the Act [the Implementing Recommendations of the 9/11 Commission Act of 2007], for potential security threats and conditions”.

While that certainly seems to be a fairly comprehensive program TSA also intends to extend the “security coordinator and reporting security incident requirements applicable to rail operators under current 49 CFR part 1580” to other portions of the surface transportation industry.

TSA expects to have the NPRM finally go to publication in July of 2013.

Railroad Security Planning

Another long overdue requirement from the Implementing Recommendations of the 9/11 Commission Act of 2007 is the Freight Railroads and Passenger Railroads--Vulnerability Assessment and Security Plan rulemaking (RIN 1652-AA56). According to the Abstract:

“This rulemaking will propose thresholds for which a risk determination can be made to determine whether a freight railroad and passenger railroad should be considered "high risk." The rulemaking will also propose requirements for vulnerability assessments and security plans for owner/operators of those railroads. The proposed requirements include procedures for TSA's review and approval of these assessments and plans, and recordkeeping requirements. The regulation will take into consideration any current security assessment and planning requirements or best practices.”

This rule could easily become the TSA’s version of the CFATS regulations in scope and impact, potentially requiring a significant expansion of the number of Surface Transportation Security Inspectors, something never authorized by Congress; coming up with an effective rule that can overcome that funding obstacle is a real challenge. TSA expects to have the NPRM published by July of 2013.

TSA Security Threat Assessments

The TSA does the security threat assessments for a number of travel related security programs including the Hazardous Materials Endorsement for CDLs and the TWIC as well as future programs such as the CFATS personnel surety program. Each of these programs is currently governed by a slightly different set of rules. With this Standardized Vetting, Adjudication, and Redress Services rulemaking (RIN 1652-AA61) the TSA “intends to propose new regulations to revise and standardize the procedures, adjudication criteria, and fees for most of the security threat assessments (STA) of individuals for which TSA is responsible”. According to the Abstract:

“In accordance with the Implementing Recommendations of the 9/11 Commission Act of 2007 (9/11 Act), the scope of the rulemaking will include transportation workers from all modes of transportation who are required to undergo an STA in other regulatory programs, including certain aviation workers and frontline employees for public transportation agencies and railroads. In addition, TSA will propose fees to cover the cost of the STAs and credentials for some personnel. TSA plans to improve efficiencies in processing STAs and streamline existing regulations by simplifying language and removing redundancies.”

TSA intends to issue their notice of proposed rulemaking for this rule in July of 2013.

Actual Dates for Rulemaking

The dates that I have been reporting for the intended date that DHS components would act on these rulemakings were provided in the DHS Rule List. There is no statutory requirement about the accuracy of these estimates and, even if there were, DHS is more than notorious for missing congressionally mandated deadlines. The only one of the above listed dates that I would have any sort of confidence in is the one for the TWIC Reader Rule and that is because it has already been submitted to OMB for approval, but even that could be delayed for months in the OMB approval process and there is no guarantee that OMB will approve the submitted NPRM.

2012 Unified Agenda Finally Published

Today the OMB’s Office of Information and Regulatory Affairs (OIRA) finally got around to publishing the 2012 Unified Agenda. It broke with the previous process of publishing Spring and Fall versions of the UA, apparently because it was so far behind in keeping up with that process. The last UA published was the Fall 2011 UA; published in January of this year.

Current DHS Rule List

Readers of this blog are going to be primarily interested in the DHS Rule list. This lists the currently active and planned rule making processes being pursued by the Department. I’ve extracted the ones of most interest to readers of this blog and posted it in Table 1 below.

Agency	Stage	Title	RIN #
OS	Final Rule	Classified National Security Information	1601-AA68
USCG	Proposed Rule	Cargo Securing on Vessels Operating in U.S. Waters	1625-AA25
USCG	Proposed Rule	Transportation Worker Identification Credential (TWIC); Card Reader Requirements	1625-AB21
USCG	Proposed Rule	Updates to Maritime Security	1625-AB38
USCG	Final Rule	Bulk Packaging To Allow for Transfer of Hazardous Liquid Cargoes	1625-AB63
TSA	Proposed Rule	General Aviation Security and Other Aircraft Operator Security	1652-AA53
TSA	Proposed Rule	Security Training for Surface Mode Employees	1652-AA55
TSA	Proposed Rule	Freight Railroads and Passenger Railroads--Vulnerability Assessment and Security Plan	1652-AA56
TSA	Proposed Rule	Standardized Vetting, Adjudication, and Redress Services	1652-AA61

Table 1: Current Items on DHS Agency Rule List

I’ll discuss these proposed rulemakings in some more detail in future posts.

Rulemaking Missing from List

To paraphrase Sherlock Holmes, what is interesting is what is not on the list. Comparing the 2012 UA to the Fall 2011 UA there are three rules of interest that are missing from the current list. Rulemaking has not been completed on these three so they were either removed from the list by the Obama Administration or were overlooked somehow. Those three rulemakings are listed in Table 2.

Agency	Stage	Title	RIN #
OS	Proposed Rule	Secure Handling of Ammonium Nitrate Program	1601-AA52
USCG	Proposed Rule	Top Screen Information Collection from MTSA-Regulated Facilities Handling Chemicals	1625-AB64
TSA	Proposed Rule	Sensitive Security Information: Disclosure in Federal Civil Court Proceedings	1652-AA54

Table 2: Rulemakings missing from DHS Rule list

Surely the Ammonium Nitrate Security Program (ANSP) was an oversight since this is a Congressionally mandated (and much overdue) rulemaking. The NPRM had been published in August of last year with the comment period closing on December 1^st, 2011. We have been waiting patiently for the final rule to be published. I expect that Rep. Thompson (D,MS) will be one of the first to question why this isn’t on the current UA.

The MTSA Top Screen rule was initiated as part of the process of harmonizing the chemical security rules between CFATS and MTSA. This was going to be essentially a data collection and analysis rule since there were no specific intentions (and no Congressional authority) to require MTSA covered facilities to comply with the CFATS rule. I suspect that this rulemaking was specifically removed from the UA.

The SSI Disclosure rule has been on the Agenda as long as I have been looking at it. The intent has been to establish rules for vetting a limited number of people involved in a Federal civil case to be authorized to view data that has been labeled Sensitive Security Information. This may have been removed because of conflicts between the SSI rules being developed under the President’s Executive Order on Controlled Unclassified Information. Actions on that EO have been delayed.

Next Step

With the long delayed publication of the UA we can now patiently wait for the President’s flexibility agenda to be published in the Federal Register. This will provide more details on how the above actions will be prioritized by the Administration. Earlier this year there was almost a month delay between the publication of the UA and the posting of the flexibility agenda.

CG Announces CTAC Meeting

The Coast Guard published a notice in this Monday’s Federal Register (77 FR 70453-70454; available on-line today) that the Chemical Transportation Advisory Committee (click through the HomePort link for more information) would be holding a 2-day meeting on December 12^th in Washington, DC. The Committee will address issues related to the maritime transportation of bulk-hazardous chemicals. This Committee was re-established last year after having been idle since their 2008 meeting.

Agenda

The Committee will receive presentations from the Coast Guard on:

• Hazardous Substances Response Plans;

• Vapor control systems and mobile vapor control systems;

• Classification of Biofuels and Biofuel blends;

• Shipments and use as fuel of Liquefied Natural Gas and Compressed Natural Gas;

• Air emissions;

• Tank Barge best practices;

• Certification of 3rd party witnesses for the International Convention for the Prevention of Pollution from Ships prewash;

• Material Safety Data Sheets requirement for oils carried as cargo and fuel;

• Pending International Maritime Organization issues;

• Security, Transportations Worker Identification Credential, etc;

• USCG Centers of Excellence; and

• Food grade product safety.

In addition the Committee will establish their initial prioritization of issues and establish the agenda and meeting schedules for Subcommittees and Working Groups to address the topics listed above.

It is possible (but not real likely) that there might be additional information provided on the TWIC Reader Rule recently submitted to the OMB.

Public Comments

The Coast Guard is soliciting public comments on the agenda topics listed above. Written comments and requests to make oral comments at the meeting need to be submitted by November 29^th. Written comments can be submitted via the Federal eRulemaking Portal (www.Regulations.gov; Docket # USCG-2012-1030). Personnel wishing to make oral comments (limited to 3 minutes each) before the Committee should contact Lieutenant Sean Peterson, ADFO (ph – 202-372-1403; fax – 202-372-1926).

Update on MTSA Hearing

The House Transport Committee has provided some additional information on their web site concerning tomorrow’s hearing on the status of the Maritime Transportation Security Act (MTSA). They have added a witness list and a briefing memo to their hearing page since I did my Congressional Hearing blog post on Saturday.

The currently scheduled witnesses are:

• Rear Admiral Joseph Servidio, Assistant Commandant for Preparedness, United States Coast Guard
• Mr. Stephen Caldwell, Director, Homeland Security and Justice Issues, Government Accountability Office
• Ms. Beth Rooney, Manager of Port Security, Port Authority of New York & New Jersey, testifying on behalf of American Association of Port Authorities
• Mr. Chris Koch, President & CEO, World Shipping Council

The web site also contains a link to the Staff Briefing Memo for this hearing. That memo summarizes the current state of the Coast Guards implementation of the MTSA legislation and supporting regulations. In addition it provides a brief summary of areas of that implementation that are currently incomplete or unsatisfactory based upon previous GAO reports. These areas include:

• TWIC;

• Foreign seafarer identification; and

• Foreign port assessments.

A new GAO report will almost certainly form the basis for the testimony of Stephen Caldwell.

Coast Guard Announces NMSAC Meeting Agenda

The Coast Guard is publishing in Monday’s Federal Register (available online today) a notice (77 FR 51817-51818) announcing the upcoming two-day meeting of the National Maritime Security Advisory Committee on September 11^th and 12^th in Washington, D.C.. This meeting will cover chemical security and cybersecurity topics along with the typical maritime topics.

Topics of specific interest to the chemical and cybersecurity communities include:

• Maritime domain awareness and information sharing;

• Cyber-security;

• Utilization of the marine highway for the protection of metropolitan areas from hazardous cargo;

• Integration of facility security plans and systems; and

• Port security grant program priorities.

Cybersecurity

The information provided on the cybersecurity topic of the agenda is more than a little vague. It states that:

“The Committee will discuss the parameters of a new tasking from the Coast Guard to provide guidance/recommendations on cyber-security initiatives within the maritime sector.” (77 FR 51817)

This wording would seem to indicate that there is a potential to include control system security issues in the discussion as there are a wide variety of water-side and shore-side control systems used in the ‘maritime sector’. It would be particularly interesting to see if the discussion included the cyber-security of various security systems.

Information Sharing

The Coast Guard probably has a better history of information sharing about security matters than any other organization in DHS. This makes it particularly interesting to see how the NMSAC uses the community feedback that it has obtained to suggest further improvements in that information sharing process.

Integration of Security Plans and Systems

Section 822 of the Coast Guard Authorization Act of 2010 required that the owner/operator of an MTSA covered facility (Congress did not include ‘vessels’ in this requirement) to “integrate, to the maximum extent practical, any security system for the facility with compatible systems operated or maintained by the appropriate State, law enforcement agencies, and the Coast Guard” {46 USC §70102(c)(2)}.The Coast Guard is asking the NMSAC to help develop guidance for implementing this rather vague requirement.

One would like to think that ‘integrating facility security systems’ would include such things as linking alarm notifications (both intrusion and chemical release) to local law enforcement and emergency response dispatch centers, ensuring that first responders are familiar with local facility procedures, and that emergency response plans are fully coordinated and exercised with local authorities.

Public Participation

As we have come to expect with the NMSAC, there are multiple modes available for public participation in this two-day meeting. First written comments on the topics may be submitted via the Federal eRulemaking Portal (www.Regulations.gov; Docket # USCG-2012-0797). People may attend the meeting in person (limited seating available, contact Mr. Ryan Owens, ryan.f.owens@uscg.mil), via teleconference {(866) 810-4853; the pass code to join is 9760138#.}, or webcast (http://connect.hsin.gov/nmsac91112/). There will be a public comment period at the end of each day’s session.