Sunday, December 26, 2010

DHS Semiannual Regulatory Agenda - Update to Subchapter H

On December 20, 2010, DHS published its semiannual regulatory agenda. An item of particular interest to the MTSA community is found on pages 79538 and 79554 of that day’s Federal Register. These pages address the Notice of Proposed Rulemaking (NPRM) that contains the updates to Subchapter H, 33 CFR 101 to 106.

The NPRM will incorporate clarifications to MTSA, SAFE Port, and the Coast Guard and Maritime Transportation Act of 2006. It will also incorporate feedback received from industry stakeholders, USCG field personnel, and the general public. It will consolidate into regulations policy guidance transmitted through Policy Advisory Council (PAC) decisions, NVIC’s, and MTSA Help Desk responses.

The NPRM will also:

· address screening standards for port facilities and vessels;

· establish security training standards that will be modeled after the courses developed by MARAD and the training standards (mandatory and non-mandatory) and courses developed by the International Maritime Organization (IMO)

· update existing regulations regarding the areas of maritime security plans, facility and vessel security plans, and facility exercise requirements found in SAFE Port.

The NPRM will incorporate recommendations from MERPAC. Homeport contains an excellent MERPAC reference site at Missions > Ports and Waterways > Safety Advisory Committees > MERPAC

The priority of this NPRM is described as “economically significant.” “Based on preliminary analysis, the Coast Guard determined that 55 percent of operators affected by this rulemaking are small entities. This rulemaking would require operators to incur additional costs for training and exercise provisions.” (Note that screening provisions are not mentioned as a factor that will drive up costs.) In a discussion of anticipated costs and benefits, DHS states, “The Coast Guard is currently estimating the costs associated with this rulemaking. Industry would incur additional costs as a result of provisions for standardized training requirements, updates to security plans and other documentation, and full-scale exercises requirements for high-risk facilities.”

The NPRM will incorporate “various U.S. Maritime Administration and International Maritime Organization voluntary consensus standards related to maritime security training,” a change from “voluntary” to “mandatory” that MARAD has been warning industry about for years.

The action date for the issuance for the NPRM is March 2011.

What all this may mean for the MTSA community:

Screening standards: In speaking of the NPRM, USCG senior personnel described the new standards as “airport-type.” Standards of this type will have a problem surviving the comment process. The USCG admits that 55% of regulated operators are small entities.

Security training standards: There are several training protocols to consider: the MARAD voluntary standards; SAFE Port Act Section 113, and the training standards in Public Law 111–281, the Coast Guard Authorization Act of 2010 (which repealed SAFE Port Section 113.) In the very bare information given in the 12/20 notice, it appears that the detailed training requirements in SAFE Port and Pub. L. 111-281 may be sidelined in favor of the codification of MARAD’s voluntary course approval process.

Maritime Security Plans: Plans are addressed in Sec. 102 of the SAFE Port Act. Specifically, plans must be resubmitted for approval if there is a change of ownership in a facility that may substantially affect the security of the facility. FSO’s (or “the qualified individual having full authority to implement security actions for a facility”) shall be a citizen of the United States. This requirement can be waived if the individual undergoes a complete background check and a check of all terrorist watch lists. The effectiveness of these plans is supposed to be verified by not one but two annual inspections, one of which is to be unannounced. The USCG is presently substituting spot-checks for the second (unannounced) annual inspection.

Exercises – Exercises are addressed in Sec. 115 of SAFE Port. Each “high risk” facility (MSRAM score, presumably) must conduct a live or full-scale exercise every second year.

The docket number for comment on this rulemaking is USCG-2007-0009. Members of the MTSA community who have an opinion about the NPRM - “for” as well as “against” - should submit comments when it comes out, hopefully in March 2011.

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