HR 2410 Introduced – Grow America Act

Last month Rep. DeFazio (D,OR) introduced HR 2410, the GROW AMERICA Act. This is the Democrat’s proposal for the surface transportation authorization bill that needs to be passed by the end of July. The printed version of this 629 page bill just became available this week.

There are a number of provisions of this complex bill that will be of specific interest to readers of this blog. They include:

∙ Emergency order provisions;

∙ User fees for special permits;

∙ Inspection of non-domestic entities;

∙ Increase civil penalties;

∙ General duty clause; and

∙ Intelligent transportation systems

Emergency Order Provisions

There are three separate provisions of the bill that provide authority for the Secretary of Transportation to issue emergency orders concerning the transport of hazardous materials. These provisions address:

∙ Emergency operational controls;

∙ National emergency and disaster response; and

∙ Hazard abatement authority.

Section 6002 would amend Chapter 51, Transporting Hazardous Materials, of 49 USC by adding a new §5129 dealing with emergency operational controls. This provides authority to the Secretary to issue emergency orders when the determination is made that “unsafe condition or practice, or a combination of unsafe conditions and practices, or an activity” {new §5129 (a)(1)} “causes an emergency situation involving a hazard of death, personal injury, or significant harm to property or the environment”. The order may address “operational controls, restrictions, and prohibitions, without prior notice or an opportunity for a hearing, as may be necessary to abate the situation”.

If such an order is issued and a petition for review is received under the provisions of 5 USC 554 the order will continue in force for 30 days or the review is complete unless the Secretary makes a determination “in writing that the emergency situation still exists” {new §5129(b)}.

Section 6005 would amend 49 USC 5101 and 49 USC 5103 to allow the Secretary to “prescribe standards to facilitate the movement of hazardous materials into, from and within federally declared disaster and emergency areas” {new §5103(c)}. The bill does not specify how those standards are to be prescribed.

Section 6008 would add a new 49 USC 5130 to authorize the Secretary to order the removal, remediation or disposal of hazardous materials in commerce if he determines that the material causes an unreasonable risk of death, personal injury or significant harm to the environment. The order may remain “in effect for as long as the emergency situation exists” {new §5130(c)}.

If a person subject to such an order fails to remove, remediate or dispose of the materials in accordance with that order, “the Secretary may take such action to arrange for the removal, remediation, or disposal of such hazardous materials as necessary to abate the unreasonable risk” {new §5130(d)}. The person subject to the order would, in that case, “be liable for all costs incurred by the United States Government in removing, remediating, or disposing of such hazardous materials” {new §5130(e)}.

User Fees for Special Permits

Section 6004 amends 49 USC 5117 by adding a new paragraph (g). It establishes a new “Hazardous Materials Approvals and Permits Fund for the administration of special permits and approvals” {new §5117(g)(1)}. It authorizes the Secretary to collect a reasonable fee “for the administration of special permits and approvals, which shall be deposited in the fund” {new §5117(g)(2)}. The Secretary is required to issue regulations, after providing notice and allowing for public comments, to implement the provisions of §5117(g) and set the annual fee.

Inspection of Non-Domestic Entities

Section 6009 would amend 49 USC 5121(c) by adding a new paragraph (4) that would authorize the Secretary to allow a person outside of the United States to “manufacture, requalify, or inspect a DOT specification packaging or special permit cylinders or certify compliance” with 49 CFR. The person requesting such authorization would have to allow the inspection of the applicant’s processes and procedures and “must bear the cost of the initial and subsequent inspections”.

Increase Civil Penalties

Section 6011 would amend 49 USC 5123(a). The maximum penalties for a knowing violation of 49 USC Chapter 51 would be increased from $75,000 to $250,000. When such a violation results in in death, serious illness, or severe injury to any person or substantial destruction of property the maximum penalty would be increased from $175,000 to $500,000. The penalty for violations of training requirements was not changed.

General Duty Clause

Section 6012 would amend 49 USC 5103 by adding a new paragraph (d). It formally establishes the requirement for person subject to 49 USC Chapter 51 to “take all reasonable measures and precautions to properly classify, describe, package, mark and label, and ensure proper condition for transportation of a hazardous material” {new §6012(d)(1)} in addition to the standard requirement to comply with “this chapter, or a regulation prescribed, or an order, special permit or approval issued under this chapter” {new §6012(d)(2)}.

Intelligent Transportation Systems

There are five sequential sections in the bill that deal with the development of intelligent transportation systems, starting with §8105. This section revises the existing ITS goals and purposes set out in 23 USC 514 by rewriting the current (a)(5) and adding two new sub-paragraphs, (a)(6) and (a)(7):

∙ Improvement of the ability of the United States to respond to security related or other manmade emergencies and natural disasters;

∙ Enhancement of the Nation’s freight system and support to freight policy goals by conducting heavy duty vehicle demonstration activities, and accelerating adoption of ITS applications in freight operations; and

∙ Enabling and accelerating the development and deployment of automated vehicles in all modes of surface transportation.

The remaining four ITS related sections of the bill would make other minor adjustments to the ITS language already found in Chapter 5 of 23 USC. The areas affected include:

∙ ITS general authorities and requirements;

∙ ITS national architecture and standards;

∙ Vehicle-to-vehicle and vehicle-to-infrastructure communications systems deployment; and

∙ Infrastructure development.

Moving Forward

As controversial as the surface transportation program support has become, with severe ideological disagreements on the amount and modes of spending, it is very unlikely that this bill being offered by the Democrats will be considered in the House. On the other hand, many of the provisions described above may make their way into the Republican bill as a method of offering compromises, or they may be offered as floor amendments when the Republican bill does finally get to the floor next month.

HR 2200 Reported in House – CBRN Intel

Last week the House Homeland Security Committee report on HR 2200, the CBRN Intelligence and Information Sharing Act of 2015, was published. The amended version of the bill was also published.

The only ‘new’ information in the Committee Report is a mention about concerns about terrorist access to “CBRN materials, such as highly enriched liquid uranium” (pg 7). This does appear to slightly expand the non-biological concerns covered in the bill. There is still no mention of the potential threat posed by weaponization of readily available industrial chemicals.

Moving Forward

This bill is currently scheduled to be considered by the House on Tuesday. It will be considered under suspension of the rules, so there will be no possibility of the bill being amended on the floor. This also means that the Leadership considers that this bill will receive substantial bipartisan support.

HR 2786 Introduced – Cross Border Rail Security

Last week Rep. Vela (D,TX) introduced HR 2786, Cross-Border Rail Security Act of 2015. The bill would require a report to Congress on efforts to inspect high-risk cross  border rail shipments.

The bill would require the Commissioner of U.S. Customs and Border Protection (CBP) to submit a report to Congress. The report would include {§2(a)}:

∙ The number of shipments entering the United States by rail annually that are determined to be high-risk by the Commissioner;

∙ Specific details on the status of radiation detection units, by type, at each rail crossing on the northern and southern land borders as of such date of enactment;

∙ An assessment of whether additional radiation detection equipment is necessary to ensure that all such high-risk cross-border rail shipments are examined with appropriate equipment; and

∙ A plan for ensuring that all relevant CBP personnel receive adequate training and guidance on the proper use of CBP’s Automated Targeting System for such high-risk cross-border rail shipments.

The bill would also require periodic audits by the GAO of CBP “operations at rail crossings on the northern and southern international borders to ensure rail shipments are targeted, examined, and the results of such examinations properly documented” {§2(b)}.

Moving Forward

Vela is the Ranking Member of the Border and Maritime Security Subcommittee of the House Homeland Security Committee and his co-sponsor on this bill, Rep. Miller (R,MI) is the Chair. This bill obviously has high-profile, bipartisan support and will be considered by the Homeland Security Committee. Since the bill requires nothing but another report to Congress there will be no active opposition to the bill. If and when it comes to the floor of the House it will almost certainly be considered under suspension of the rules and will pass with a solid bipartisan vote.

Commentary

This bill continues to reflect the congressional obsession with the potential for smuggling of nuclear weapons or radiological materials into the United States for use in a terrorist attack. While it is clear that a nuclear weapon would produce catastrophic results, the chances of a terrorist group getting their hands on such a weapon are relatively low. Not low enough to ignore, but low enough for that not to be the main focus on cross border rail shipment inspections.

A much higher probability attack mode would be weaponizing one of the many cross border rail shipments of toxic inhalation hazard (TIH) chemicals. Routine shipments of chlorine, for example, cross both the Canadian and Mexican border. Current TSA regulations  pertaining to these shipments do not require security inspections {49 CFR 1580.107} of these railcars until the first time that they are interchanged in the US or until they are delivered.

I would like to suggest that this bill would be improved by including a requirement for reporting on the number of rail security-sensitive material shipments {§1580.100(b)} coming into the US and the number of those railcar that there is documentation available that equivalent inspections of the railcars as required in the US {§1580.107(a)(1)} have been conducted.

S 1619 Introduced, FY 2016 DHS Spending Bill

As I mentioned yesterday Sen. Hoeven (R,SD) introduced S 1619, the Senate version of the FY 2016 DHS spending bill; the House version has not yet been completed. There are no specific mentions of either cybersecurity or chemical security in the bill. Actually, this is the first DHS spending bill since 2009 that has not included language extending the CFATS; that program was finally authorized in a stand-alone bill last December.

As has become quite common in DHS spending bills there are some very interesting discussions of topics of specific interest to readers of this blog in the Senate Appropriations Committee report accompanying the bill.

MTSA Security

There is a brief mention in the discussion about Coast Guard spending mentioning the Coast Guards impending regulation on facility security officer training. This is one of many DHS bills that is behind on meeting congressionally mandated deadlines. In this report the Committee makes their displeasure known and directs the Coast Guard “to move expeditiously on this effort and the Committee expects the NPRM will be published during calendar year 2015” (Pg 77).

Cybersecurity Spending

Cybersecurity programs in DHS are not a large enough to show up as line items in the actual bill. The Committee Report does provide a breakout of cybersecurity programs in the National Protection and Programs Directorate.

	FY 2015	Budget Request	S 1619
Cybersecurity Coordination	4,311	4,318	4,275
US-CERT	98,573	98,642	97,515
Federal Network Security	171,000	131,202	130,594
Network Security Deployment	377,00	479,760	478,035
Global Cybersecurity Management	25,873	20,321	27,276
CI Cyber Protection and Awareness	70,919	77,584	75,621
Business Operations	5,524	6,516	6,439
Total Cybersecurity	753,200	818,343	819,755

NPPD Cybersecurity Spending in Thousands of Dollars

With the exception of the first two programs in the table the Committee has provided more funds for cybersecurity programs than found in this year’s spending, but not as much as the President requested. There is one program where the Committee exceeded the President’s request the Global Cybersecurity Management program. This includes the DHS Software Assurance Program that the Administration proposed to eliminate (and the Committee continues funding) and the cybersecurity education program for the government. The report makes the following comment about the training program (pg 99):

“For the second consecutive year, the administration’s proposal to reduce funding for cybersecurity education is denied. The cybersecurity education programs are critical to establishing a robust workforce for the future. Should NPPD wish to discontinue or relocate these programs within the Department, such changes should be addressed in a comprehensive manner through the budget process and the Committee should be briefed accordingly so the proposal can be adequately assessed.”

S&T Cybersecurity

There is additional information about cybersecurity issues in the S&T section of the Committee Report. Of special interest to the industrial control system community are the opening comments of that discussion (pg 130):

“The Committee continues to recognize the cyber threats to the Nation’s electric grid and the other control systems vital to our security and economy. In order to address this challenge, the Committee expects that S&T will continue to invest in control systems test beds and associated cyber education.”

The discussion also includes Committee encouragement to DHS S&T to:

∙ Expand the simulation based cyber-war gaming tool for the financial sector into additional critical infrastructure sectors;

∙ Continued development of cybersecurity tools and platforms that facilitate information sharing, threat monitoring, and response initiation at the State and local level;

∙ Consider competitively establishing one or more academic centers of excellence that focus on cybersecurity research and education; and

∙ Consider the use of cyber accelerators to help transition innovative cybersecurity technologies into commercial use.

Finally the S&T discussion closes with mention of the Safety Act application to cybersecurity operations. It states (pg 132):

“The Committee supports efforts to more thoroughly define certain aspects of the SAFETY Act, including those that relate to qualifying cyber-attacks and cyber-incidents and extending SAFETY Act protections to cybersecurity technologies. This support should not be construed to expand the scope of the SAFETY Act protections, but rather clarify the authority of the Secretary in designating events which trigger SAFETY Act protections. The Department shall report to the Committee regarding whether legislative changes are required to achieve such a change.”

Chemical Security

The Committee Report notes (pg 95) that the spending for DHS Infrastructure Security Compliance Division (ISCD, agency responsible for the CFATS program) is higher than the FY 2015 spending but less than what the administration requested. The $89.982 Million provided in the bill for ISCD includes $13 Million for the Ammonium Nitrate Security Program. The requested money for that program was reduced because ISCD has still not completed the final rule establishing that program.

The negative comments about the CFATS program that have been common in the last couple of years in Committee Reports from both Houses have been significantly reduced. This is mainly due to the passage of HR 4007 last year and the changes that that bill required in the program. Those changes are just now starting to take effect. Thus most of the Committee comments on CFATS have been continuing requirements to report to Congress on the status of the program.

Chemical Defense Program

There is a brief discussion about the Chemical Defense Program being run out of the DHS Office of Health Affairs. I briefly mentioned this program in 2013. The Committee Reports describes it this way:

“OHA has selected four cities across the United States for demonstration projects aimed at developing a comprehensive chemical defense framework and best practices to share how the Public Health community engages in large-scale events.”

The Senate bill would continue funding for that program at current levels. It also requires OHA to provide the Appropriations Committee a report on the completion of the projects in 2016.

Crude Oil Trains

There is an interesting heading in the Committee Report discussion of FEMA projects; “Ensuring Rail Security”. It has nothing to do with TSA or security, it actually refers to spending in support of emergency response to crude oil train derailments. While most of the government’s attention have been on actions taken by DOT’s Federal Railroad Administration and the Pipeline and Hazardous Material Safety Administration, the Committee also acknowledges that DHS has an important role to play in increasing crude oil train safety.

The Committee directs DHS to “to provide a briefing to the Committee within 60 days of the date of enactment of this act to outline how NPPD and FEMA programs are addressing the issue of crude oil movement, those actions being taken to address gaps in capabilities at the State and local levels, and any unfulfilled needs in coordinating with other departments and agencies” (pg 108). It also notes:

“When awarding grants and providing training, the Committee expects FEMA to consider the unique needs of first responders in meeting the issues related to crude oil shipping by rail.”

Moving Forward

The discussions, mandates and suggestions found in the Committee Reports form an interesting grey area in the legislation. In as much as they describe the intention of lawmakers in crafting these bills, they have been used by Courts in trying to interpret legislation. In the spending bills, while the numbers may be changed by amendments in subsequent legislative processes, there is very seldom any attempt to amend the Committee instructions. To the extent that executive agencies have to come back to Congress every year for funding, these mandates and suggestions do carry at least some weight with the affected agencies.

Since the House must originate any spending or taxing bills according to the Constitution, S 1619 will never be passed into law. What typically happens is that the Senate will take up this bill and pass it. Then when the House bill arrives the wording from the passed version of the Senate bill is substituted for the House language and the bill is returned to the House. The House then either accepts or rejects the Senate version. If it is rejected the two versions are sent to a Conference Committee to work out the differences.

We are, however, continuing to see the politicization of the spending bill process that has become so common. Unless something changes, neither this bill nor the probable House version will actually make it to the floor of the Senate for consideration. Even though the process in the House will certainly be completed for all twelve spending bills before the summer recess, it is unlikely than any of them will make it to the floor of the Senate because of objections from the Democrats in that body. We will probably see the continuing resolution process again be employed this year, though there is always the possibility that there will be another short term government shutdown until one of the two parties blink.

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

Bills Introduced – 06-18-15

There were 73 bills introduced in the House and Senate yesterday. Of those four may be of specific interest to readers of this blog:

S 1608 A bill to protect the safety of the national airspace system from the hazardous operation of consumer drones, and for other purposes. Sen. Feinstein, Dianne [D-CA]

S 1611 A bill to authorize appropriations for the Coast Guard for fiscal years 2016 and 2017, and for other purposes. Sen. Thune, John [R-SD]

S 1619 An original bill making appropriations for the Department of Homeland Security for the fiscal year ending September 30, 2016, and for other purposes. Sen. Hoeven, John [R-ND]

S 1634 A bill to amend the Federal antitrust laws to provide expanded coverage and to eliminate exemptions from such laws that are contrary to the public interest with respect to railroads. Sen. Klobuchar, Amy [D-MN]

Unless Feinstein’s drone bill specifically addresses critical infrastructure this will probably be the last mention of this bill.

The House version of S 1611 did not contain any references to chemical transportation safety or security and neither will this version (likely). We will see.

The DHS spending bill and its report from the Senate Appropriations Committee has already been printed by the GPO. I’ll probably have a review prepared later today.

Klobuchar’s railroad antitrust bill may be of specific interest to chemical shippers but I won’t cover the bill unless there are specific mentions of chemical shipping provisions.

EAP Intention Notification

As I have mentioned a couple of times this week, the CFATS Expedited Approval Program (EAP) started functioning on June 16^th. Tier 3 and Tier 4 facilities wishing to complete their site security plans (SSP) are required to notify the DHS Infrastructure Security Compliance Division (ISCD) 30 of their intention to participate in the EAP process at least 30-days prior to submitting the EAP SSP. The ability to initiate that notification became available on the 16^th.

Yesterday I sought clarification on how a facility was supposed to submit that notification by completing a request to the CFATS Help Desk via their web form. I received my reply back this morning:

“A facility can provide 30 day notice via CSAT or letter to DHS. The notification button became available in CSAT this week for Tier 3 and 4 facilities. Letters can be faxed to 866-731-2728 or emailed to csat@hq.dhs.gov.”

Since I am not a registered CSAT user (you have to be designated access by a covered CFATS facility) I have not been able to see this ‘notification button’, but it is apparently available on the site. I have heard that ISCD has been directly notifying ‘affected facilities’ of the notification procedure.

The other new piece of information in the CFATS Help Desk email is that you can fax or email the notification letter to ISCD. This was not mentioned in the EAP Fact Sheet or on the EAP web site.

There is no specific guidance as to the content of the letter. I would suspect that at the very least the letter would need to contain the facility name and CFATS ID number and a statement to the effect that the facility intends to submit an EAP site security plan. I would suspect that the designated facility Submitter could sign the letter, but the Authorizer signature would probably be the safest bet.