Indiana House Passes Workplace Firearm Possession Bill Exempting CFATS and MTSA Facilities

The Indiana House of Representatives on Tuesday passed a bill that would make it illegal to restrict or prohibit the possession, transportation, or storage of firearms (including in locked employee vehicles) at the workplace. H.R. 1065, which was introduced and referred to the House Committee on Natural Resources earlier this month, would amend Title 10, Article 14, Chapter 3 of the Indiana Code to disallow the restriction of firearm storage in employee vehicles parked on company property. Senate Bill 25, providing for similar measures, was passed by the state Senate on Monday; the two will have to be reconciled before becoming law.

As passed by the House, however, several exemptions apply. Most notably, the law would not apply to facilities regulated by the Chemical Facility Anti-Terrorism Standards (CFATS) or the Maritime Transportation Security Act (MTSA). That is, it would not authorize the possession, transportation, storage, or use of firearms at CFATS- or MTSA-regulated facilities, even in locked employee vehicles. The Senate version lacks this explicit exemption.

DHS Secretary Napolitano Attends Meeting to Discuss International Aviation Security Standards

Department of Homeland Security (DHS) Secretary Janet Napolitano this week met with members of the International Air Transport Association (IATA) as well as leaders from twenty international airlines to discuss improvements in international aviation security. Secretary Napolitano outlined four general areas in which international public-private collaboration would help improve efforts to secure aviation systems: improving information collection and analysis; increasing information sharing and collaboration in passenger vetting; enhancing international aviation security standards; and deploying new airport screening technologies.

This week's meetings are the first in a series of planned global meetings to discuss a collaborative effort to implement new international aviation security standards and procedures. While the U.S. Transportation Security Administration (TSA) must, by law, screen passengers and baggage entering air vessels originating from within the United States, it does not screen passengers or baggage originating abroad. All last point of departure flights to the United States must meet minimum standards set by the International Civil Aviation Organization (ICAO), as well as recently enhanced security standards set by TSA. The recent global meetings are an effort to streamline international aviation security standards for all international and domestic flights.

Senator Rockefeller to Markup Cybersecurity Bill

Sen. John D. Rockefeller (D-WV) announced last week that he plans on marking up comprehensive cybersecurity legislation introduced last April and redrafted over the summer in order to revive legislation aimed at securing the nation's cyber networks. Rockefeller, who serves as Chairman of the Senate Committee on Commerce, Science, and Transportation, originally introduced S.773 into the Senate last year, in response to post-9/11 complaints that both the private and public sectors were inadequately securing their cyber infrastructures.

If passed, the bill would create a National Cybersecurity Adviser within the Executive Office who would serve as the head national official for all matters relating to cybersecurity and report directly to the president. In addition, the proposed legislation would call for streamlining of cyber-related government functions, as well as a public-private cybersecurity partnership. The president would have the authority to declare a "cyber security emergency" and direct a national response to such an event.

Cybersecurity has become a key issue of concern in recent months for members of Congress as well as the intelligence community. Last month, the Senate Select Committee on Intelligence announced the formation of a cybersecurity task force to evaluate cyber threats against the U.S. In November, the House Committee on Science and Technology passed H.R. 4061, the Cyersecurity Enhancement Act of 2009, which would streamline federal investments in cybersecurity research and development as well as improve cybersecurity and technical standards in the workforce and encourage cybersecurity partnerships between the public and private sectors. Late last year, President Obama named Howard Schmidt as the new White House Cybersecurity Coordinator.

DHS To Hold CFATS Webinar

The Department of Homeland Security's Office of Infrastructure Protection (IP) on Friday announced that it will hold a webinar on February 22, 2010, from 2pm EST to 3pm EST, providing an update on the status of the Chemical Facility Anti-Terrorism Standards (CFATS). Sue Armstrong, Acting IP Deputy Assistant Secretary, will provide a CFATS activity and implementation update regarding tools and compliance assistance being developed by DHS. Click here to register for the webinar.

DHS Issues 60-Day Comment Request for CFATS Applicability to Gasoline Terminals

The Department of Homeland Security's (DHS's) National Protection and Programs Directorate published a 60-day Request for Comments regarding the applicability of the Chemical Facility Anti-Terrorism Standards (CFATS) to gasoline terminals. DHS initially published the request on Tuesday, January 12, but republished it on Friday, January 15, due to footnote omissions. Broadly speaking, DHS seeks comments on the applicability of CFATS to gasoline terminals as a result of technical and procedural issues raised by industry, including the issues raised in the petition [petition exhibits] filed by the International Liquid Terminals Association (ILTA) in May 2009.

Request for Comments

DHS is requesting comments on three issues:

• Comments on the inclusion of 6 CFR 27.203(b)(1)(v) (counting of Release-COI in gasoline, diesel, kerosene, or jet fuel in aboveground storage tanks) and 6 CFR 27.204(a)(2) (the flammable mixtures rule), as they apply to gasoline terminals;
• Comments on the applicability of the modified VCE model to gasoline terminals, including: whether the reduction of the vapor yield for gasoline from ten percent (as in EPA’s VCE model) to one percent reasonably reflects the potential consequences for a vapor cloud explosion from gasoline (as compared to other liquid flammable chemicals); and whether a different yield factor adjustment might better reflect the potential consequences for a vapor cloud explosion from gasoline; and
• Comments on whether a reasonable model exists or should be developed for future use that would allow DHS to estimate the plausible worst-case consequences of an uncontained pool fire resulting from a successful attack on gasoline terminals.

Interested parties may submit written comments by March 15, 2010, in one of two ways:

• Online, through the Federal eRulemaking Portal; or
• Via mail, to: U.S. Department of Homeland Security, National Protection and Programs Directorate, Office of Infrastructure Protection, Infrastructure Security Compliance Division, Mail Stop 8100, Washington, DC 20528.

PHMSA Proposes Lithium Battery Transport Rule

The Department of Transportation's Pipeline and Hazardous Materials Safety Administration (PHMSA) on Monday issued a notice of proposed rulemaking (NPRM) that would amend the Hazardous Materials Regulations (HMR) [found at 49 CFR Parts 100-185] by increasing the safety of lithium batteries in transport. The proposed rule would implement requirements that all lithium batteries be packaged for transport in order to prevent damage leading to a catastrophic incident, or to minimize the effects of an incident. For all modes of transportation (including air), lithium cells and batteries would have to be packaged in such a way that protects the cell or battery from short-circuits. For air transport, the cells or batteries would be required to be transported in a container approved by the Federal Aviation Administration (FAA), or be stowed in crew-accessible cargo locations or a location equipped with an FAA-approved fire suppression system.

In addition, the rule would require lithium batteries be accompanied by hazard communication ensuring appropriate handling by air carrier personnel while in transport. This would include communicating to transport workers and emergency response personnel what to do in an emergency. Manufacturers of lithium cells or batteries would be required to mark each battery and cell to indicate satisfactory completion of United Nations (UN) design type tests, and to keep records of such tests.

Members of the public may submit written comments by March 12, 2010, in one of several ways:

• Online, through the Federal eRulemaking Portal;
• Via fax, at (202) 493-2251; or
• Via mail, to: Docket Management System; U.S. Department of Transportation, Dockets Operations, M–30, Ground Floor, Room W12–140, 1200 New Jersey Avenue, SE., Washington, DC 20590–0001.

US Coast Guard Requests Comments on Cargo Securing Methods

The U.S. Coast Guard (USCG) on Friday published in the Federal Register a Notice of request for comments on methods for securing cargo in transport vehicles and freight containers, in order to determine whether a standardized approval or certification process or improvised performance criteria for flexible strapping securing systems is needed. 75 Fed. Reg. 1070-71.

Currently, no certification or qualification standard exists under Federal law for blocking, bracing, or for the use of strapping systems for securing cargo. Under current federal regulation, cargo, including hazardous materials, transported above-ground (either in vehicles, rail, or on vessels) must be secured to prevent shifting of the cargo or damage to the container during transport. 49 CFR Part 176.76. However, the specific method by which the cargo is secured is unregulated. Oftentimes, flexible strapping is used even though it may not always properly secure cargo in transit. The USCG solicits comments while considering whether to implement a standardized certification or approval process for cargo securing systems.

The USCG is requesting comments on:

• The need for a new approval
  process or certification standard for cargo securing systems;
• Information on currently used standards for the approval and use of cargo securing systems;
• Methods for ensuring or verifying that securing systems adequately secure cargo without damaging the container or cargo;
• Existing test methods for securing systems;
• Materials used for securing cargo within the container (e.g. wood, plastic, bags, web, wire, chain, etc.);
• Allowances for movement of cargo within the container when securing systems are used; and
• Information on cargo securing systems that are currently being used to secure cargo in containers, both domestically and internationally.

Members of the public may submit written comments by March 9, 2010, in one of several ways:

• Online, through the Federal eRulemaking Portal;
• Via fax, at (202) 493-2251; or
• Via mail, to: Docket Management Facility (M–30), U.S. Department of Transportation, West Building Ground Floor, Room W12–140, 1200 New Jersey Avenue, SE., Washington, DC 20590–0001.

Georgia Announces CSX Rail Security Partnership

Georgia Governor Sonny Perdue announced Friday that the State of Georgia has entered into a rail security partnership with CSX Transportation. The public-private partnership, called "SecureNOW, allows the Georgia Emergency Management Agency-Office of Homeland Security (GEMA-OHS) to share critical security information, resources, and strategies with CSX, in order to enhance response capabilities to rail security events. GEMA-OHS will now have access to the rail company's secure online system, allowing state and local law enforcement officials to independently monitor, in real-time, the location of CSX railcars, as well as the contents of those railcars. The partnership also allows CSX to collaborate with local officials to jointly develop rail security training and preparedness exercises. CSX will begin providing 24/7 access to rail security professionals.

CSX has long promoted public-private partnerships. CSX promoted its SecureNOW program last year; SecureNOW pilot programs exist in Ohio, Indiana, Kentucky, Maryland, New Jersey and New York.

PHMSA Issues Correction to 2009 Final Rule Amending HMR

The Department of Transportation's Pipeline and Hazardous Materials Safety Administration (PHMSA) on Monday published in the Federal Register corrections to a Final Rule issued last January, in response to two appeals filed last year. Because Monday's amendments impose no new requirements, notice and public comment procedures are unnecessary, making effective date of the Final Rule January 4, 2010.

Last year's Final Rule, published in the Federal Register on January 14, 2009, revised the Hazardous Materials Regulations (HMR) [at 49 CFR Parts 100-185] in several ways, most notably by amending regulations relating to the transportation of batteries and battery-powered devices. Appeals were subsequently filed by Dangerous Goods Transport Consulting, Inc., and HMT Associates, Inc., both dealing with the shipment of fuel cell cartridges, as regulated by the 2009 Final Rule. Monday's corrections included a number of editorial changes and clarifying amendments to those sections of the HMR modified by the 2009 Rule.

Limited Quantity Exception
The appeal filed by Dangerous Goods Transport Consulting dealt with changes to 49 CFR §172.230(g) that prohibited the ‘limited quantities’ classification of fuel cell fuel cartridges when transported by air, but did allow identical materials to be called a ‘consumer commodity’ and be re-classified as 'other regulated materials-domestic' (ORM-D) in air transport. Additionally, similar quantities of the actual fuel can be shipped as ‘limited quantities’ when not contained in a fuel cell cartridge.

PHMSA acknowledges the inconsistency raised in the appeal, but noted that the harmonization of the HMR with international rules “promotes safety and facilitates international trade by minimizing the costs and other burdens of complying with multiple or inconsistent safety requirements. Thus, the benefits of a harmonized domestic and international transportation regime outweigh the costs that may be incurred.” 75 Fed. Reg. 64.

In yesterday's corrections, PHMSA also noted that the “ICAO Dangerous Goods Panel is currently considering adoption of limited quantity exceptions, based in part on a proposal from the U.S. Fuel Cell Council (FCC)”. 75 Fed. Reg. 64. If such a change is adopted as expected, PHMSA said that they would reconsider the ‘limited quantity’ exception in future rulemakings.

Multi-Modal Packing Requirements
The appeal filed by HMT Associates concerned the provision in 49 CFR 173.230(e) requiring intermediate packaging for fuel cell cartridges packed with equipment for all modes of transportation. HMT contended that this was inconsistent with international recommendations for shipping modes, other than for air. HMT further noted that the language in the 2009 rule's original notice of proposed rulemaking (NPRM) published on July 31st, 2008, did not contain the language applying the intermediate container restrictions to non-aviation transportation modes.

In yesterday's corrections notice, PHMSA agreed that the language objected to in HMT's appeal was consistent with neither the original NPRM language nor with international guidelines. PHMSA noted that they had intended the requirement for intermediate packaging of fuel cell cartridges packed with equipment be limited to packaging prepared for air transport consistent with the International Civil Aviation Organization’s Technical Instructions for the Safe Transport of Dangerous Goods by Air (ICAO TI).

As a result, PHMSA has granted HMT's appeal. They are changing §173.230(e)(2)(i) and §172.230(f)(4) to fully align the fuel cell cartridges packaging requirements with the multimodal packing requirements prescribed in ICAO TI Packing Instructions 217 and UN Recommendations Packing Instruction P004. Additional clarifying changes are being made to §173.230, such as correcting the terminology in (f)(2) from ‘fuel cells’ to read ‘fuel cell cartridges.’

Critical Infrastructure Webinar To Be Held January 6

The Department of Homeland Security (DHS) will be holding a Webinar on January 6, 2010, from 3:00-4:00PM EST, called Critical Infrastructure Resilience: The Next Frontier in Homeland Security, to discuss the Infrastructure Protection mission. Under Secretary for DHS's National Protection and Programs Directorate (NIPP) Rand Beers will address the interdependencies and important steps DHS is taking to protect the country's critical infrastructure. The Webinar was originally scheduled for Monday, December 21, but was postponed due to weather. Click here to register.

Homeland Security Presidential Directive 7 (HSPD-7), released December 17, 2003, identified seventeen CIKR sectors: Agriculture and Food; Banking and Finance; Chemical; Commercial Facilities; Communications; Dams; Defense Industrial Base; Emergency Services; Energy; Government Facilities; Healthcare and Public Health; Information Technology; National Monuments and Icons; Nuclear Reactors, Materials and Waste; Postal and Shipping; Transportation Systems (including mass transit); and Water. An eighteenth CIKR, Critical Manufacturing, was formally established in 2008 by former DHS Secretary Michael Chertoff. The majority of the eighteen CIKRs are owned and operated by the private sector, creating a need for close collaboration between industry and DHS. NIPP streamlines methods to protect all eighteen CIKRs into a single program.