BIS Publishes Marine Toxins Final Rule

The DOC’s Bureau of Industry and Security published a final rule in Tuesday’s (available on line today) Federal Register (88 FR 2507-2517) for “Implementation of Australia Group Decisions From 2021 and 2022 Virtual Meetings: Controls on Marine Toxins, Plant Pathogens and Biological Equipment”. The rule makes a number of technical changes to the DOC’s Export Control Lists including adding four naturally occurring, dual-use marine toxins (specifically, brevetoxins, gonyautoxins, nodularins and palytoxin) and removing cholera toxin, thus the ‘Marine toxins’ of the title.

I have been following this rulemaking to see if it makes significant definitional changes in the biotoxins rules to reflect the fact (from rulemaking abstract) that they “are now capable of being more easily isolated and purified due to novel synthesis methods and equipment”. This would make these biotoxins more like chemical weapons and thus potentially coverable under the Chemical Facility Anti-Terrorism Standards (CFATS) program. This final rule does not do that.

It does, however, make a minor change to the DOC regulations dealing with chemical weapon precursors. It makes a change to Technical Note 3 to ECCN (Export Classification Control Number) 1C350 (pg 960), changing the first sentence to read:

“Precursor chemicals in ECCN 1C350 are listed by name, Chemical Abstract Service (CAS) number and CWC Schedule (where applicable). Precursor chemicals of the same structural formula (e.g., hydrates, isotopically-labeled forms or all possible stereoisomers [added language]) are controlled by ECCN 1C350, regardless of name or CAS number.”

This does not technically change the various Chemical Weapons Convention lists of chemical weapon precursors that DHS used as a basis for some listings in the DHS chemicals of interest list (COI). This export control list change is almost certainly not sufficient to suggest a similar change in the COI list.

DHS IED Precursor Meetings

Yesterday I saw a brief post by David Wulf, Director of the DHS Infrastructure Security Compliance Division (ISCD), on LinkedIn. In it he announced a series of ‘stakeholder engagement meetings’ in the coming months that the Cybersecurity and Infrastructure Security Agency will be holding on ‘explosive precursors’. There is not a lot of information in the post beyond the dates and locations for the meetings (listed below).

Los Angeles, CA                      May 23^rd, 2019

Orlando, FL                             May 30^th, 2019

Houston, TX                            June 4^th, 2019

Indianapolis, IN                        June 11^th, 2019

Chicago, IL                              June 13^th, 2019

Unfortunately, the post on LinkedIn shows a photographic copy of the flyer about the meetings and what I would expect to be links on the flyer are not ‘active’ in the photo. Wulf does provide an email address for those wishing ore information; CFATS@hq.dhs.gov.

Background

This is part of the continuing saga of the Congressional mandate for DHS to regulate the commercial sale of ammonium nitrate. ISCD published an advanced notice of proposed rulemaking (ANPM) in 2008. Subsequently, ISCD published a notice of proposed rulemaking (NPRM) in 2011.

The big problem with the proposed ammonium nitrate security regulations is that they were going to involve a large number of people and would be very costly. DHS estimated that the ten-year cost for the program would be between “$364.2 million to $1.3 billion with a primary (mean) estimate of $814 million”. Balancing this against a cost of a Murrah Building attack estimated by DHS to be $1.35 billion. This would mean that the regulation cost would break even if the regulations prevented one Murrah scale attack every 14 years. Since there has not been such an attack in the 24 years since the Murrah attack, the cost of the program is not outweighed by the attack prevention. This calls into question whether or not ammonium nitrate regulation is cost effective, especially since ammonium nitrate no longer seems to be a favored precursor for terrorist explosive devices.

In 2016, in consultation with Congress, ISCD decided to look at the issue of regulating a wider range of chemicals as explosive precursors that could be expected to be used in preparing terrorist explosive devices. In August of 2016 DHS commissioned a study by the National Academies of Sciences, Engineering, and Medicine on the subject that would lead to a report being published in November of 2016; “Reducing the Threat of Improvised Explosive Device Attacks by Restricting Access to Chemical Explosive Precursors”.

This meeting announcement would seem to indicate that ISCD is considering moving forward with new rulemaking process. It is not currently clear whether or not the new process would be included in the current Chemical Facility Anti-Terrorism Standards (CFATS) program or if it would be a new standalone program also being operated out of ISCD. If this program is targeted at manufacturers and wholesale distribution, I suspect that it would be included in CFATS program. If it is focused at the retail level, it would be harder to fit it into the existing chemical security program.

The Meetings

David notes the reason for the meetings: “As we work with Congress to enhance the security of IED precursor chemicals, we want to hear from you!” What is important, however, is that these are being billed as ‘stakeholder engagement meetings’ rather than ‘public listening sessions’. Remembering back to the Obama era Chemical Safety and Security EO, those listening sessions were designed to provide a wide range of public input into those EO processes. This is apparently something different, however.

The stakeholders in this process would appear to be those portions of the chemical industry that are involved in the manufacture, distribution and potentially the commercial sale of chemicals that have been identified as key precursors to the manufacture of improvised explosives. There is a remote possibility that it could also include the transportation of those chemicals, but I suspect that it would take congressional action to include that sector.

Possibilities

This is very early in the potential rulemaking process; we have not yet even seen an advanced notice of proposed rulemaking. At this point I do not think that ISCD has got a firm grip on what they want to do. The ammonium nitrate security program is effectively dead, but what could we be looking at down the road? ISCD is tight lipped on this, so I am speculating here, but I see a variety of options available.

First ISCD could seek changes to the DHS chemicals of interest (COI) list addressing the list of precursor chemicals identified in the Report (pg 28). This could include adding some new chemicals and potentially changes to the screening threshold quantities for some existing chemicals. This would certainly require a formal rulemaking and would add a substantial number of facilities to the CFATS program. This would necessitate addition funding from Congress for more chemical security inspectors.

ISCD could also modify their existing CFATS risk assessment process to increase the risk assumptions associated with existing COI that are included in the Report’s list of precursor chemicals. This could almost certainly be done without a rulemaking. We would see a process similar to that used when ISCD implemented CSAT 2.0. A modification of the current CSAT information collection request would be necessary and that would provide industry (and the public) with a chance to comment on the proposed changes. Again, this would result in more facilities in the CFATS program and the need for more money.

If the decision is made to keep the precursor chemical security program within CFATS. I would really expect to see it include a combination of these two processes. I might expect to see some additional changes including a requirement for covered facilities to provide ISCD with a list of customers to which precursor COI are shipped.

The most comprehensive solution would be to stand up an entirely new program within ISCD. If this route is taken, I suspect it would include some sort of voluntary program for commercial retailers and large-scale users of these precursor chemicals. The thing that effectively killed the ammonium nitrate security program was the costs associated with setting up and administering a registration program for retailers and users of ammonium nitrate. These costs would quickly escalate if a similar registration program were instituted for all of the listed chemicals.

Moving Forward

As I said, earlier this is very early in the regulatory process, but stakeholders need to get involved early in the process if they want to effectively impact how the new procedures are implemented.

IED Precursor Chemical Study Published

Today the DHS Chemical Facility Anti-Terrorism Security (CFATS) web site was updated to include links to a pre-publication copy of the report of the National Academies report on possible modes of regulating improvised explosive device (IED) precursor chemicals. This study was commissioned by DHS in August 2016 as part of their efforts to craft effective regulations for the prevention of the use of ammonium nitrate in IEDs.

A quick review of the 191-page document would indicate that the study committee has taken a very nuanced look at the issue of controlling precursor chemicals to prevent their use in the construction and use of IEDs by terrorists. There is no quick fix proposed by the study. Instead they have produced six broad recommendations:

Federal, state, local, and private sector entities attempting to reduce the threat of IED attacks by restricting access to precursor chemicals should focus on both person-borne and vehicle-borne IEDs.

Federal, state, local, and private sector entities attempting to reduce the threats from person-borne and vehicle-borne IEDs should consider multi-chemical, rather than single-chemical, strategies.

Federal, state, local, and private-sector entities attempting to reduce the threats from person-borne and vehicle-borne IEDs should focus on retail-level transactions of precursor chemicals, especially e-commerce.

Federal, state, local, and private-sector entities should explore strategies for harmonizing oversight of the sale and use of commercially available kits that contain precursor chemicals that are specifically designed to be combined to produce homemade explosives.

US DHS should engage in a more comprehensive, detailed, and rigorous analysis of specific provisions for proposed mandatory and voluntary policy mechanisms to restrict access to precursor chemicals by malicious actors.

The federal government should provide additional support for voluntary measures, activities, and programs that can contribute to restricting access by malicious actorsto precursor chemicals used to manufacture IEDs.

I will be taking more detailed reviews of various portions of the study in future blog posts.