Once again I
need to thank Patrick Coyle and his excellent blog Chemical Facility Security
News (http://chemical-facility-security-news.blogspot.com) for drawing
attention to the fact that DHS has published the Fall 2012 Regulatory Plan and
Unified Agenda at http://www.regulations.gov/#!docketDetail;D=DHS-2012-0079. The
documents on this site are dated 12/24/2012. Among many items of interest is
the information below about the update to Subchapter H. The Coast Guard is
proposing to publish the NPRM during April 2013.
Title: Updates to Maritime Security
Abstract: The Coast Guard proposes certain
additions, changes, and amendments to 33 CFR, subchapter H. Subchapter H is comprised
of parts 101 through 106. Subchapter H implements the major provisions of the
Maritime Transportation Security Act of 2002. This rulemaking is the first
major revision to subchapter H. 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).
Priority: Economically Significant
Agenda Stage of
Rulemaking: Proposed Rule
Major: Undetermined
Unfunded Mandates: No
Regulatory Plan:
Statement of Need: This rulemaking is needed
to incorporate Coast Guard Policy Advisory Council (PAC) decisions on the interpretation
of regulations, guidance provided in response to questions to the Maritime
Transportation Security Act of 2002 (MTSA) hotline, and to implement various requirements
found in the Security and Accountability for Every Port Act of 2006, the Coast
Guard and Maritime Transportation Act of 2006, and the Coast Guard
Authorization Act of 2010. In addition, this rulemaking is needed to incorporate recommendations
from the Merchant Marine Personnel Advisory Committee. It also incorporates
various U.S. Maritime Administration and International Maritime Organization
voluntary consensus standards related to maritime security training.
Legal Basis: The fundamental legal basis for
subchapter H remains the Maritime Transportation Security Act of 2002 as amended
by the Security and Accountability for Every Port Act of 2006, the Coast Guard
and Maritime Transportation Act of 2006, and the Coast Guard Authorization Act of 2010.
Alternatives: The Coast Guard is currently
evaluating a number of alternatives based on applicability and risk (threat, vulnerability,
and consequence). However, an overall update to make necessary changes to
subchapter H and address improvements resulting from our experience since 2003
is prudent.
Costs and Benefits: The Coast Guard is
currently estimating the costs associated with this rulemaking. The benefit
from these provisions is compliance with mandates and harmonization with
international standards. This rulemaking expands and improves competencies associated with Maritime Domain
Awareness (MDA). MDA is the effective understanding of anything associated with
the global maritime domain that could impact the United States' security,
safety, economy, or environment. The proposed rule would improve MDA through training,
exercise, and security plan enhancements.
Risks: With this rulemaking, the Coast Guard
seeks to maintain the risk reduction goals established with the promulgation of
the original MTSA regulations by incorporating provisions related to more
recent legislation and warranted by our experience with subchapter H since 2003.
Timetable:
Action Date, NPRM 04/00/2013
International Impacts: This regulatory action
will be likely to have international trade and investment effects, or otherwise
be of international interest.
_____________________________________________________________________
What may have changed from the last time the USCG
described this NPRM? In January 2012, the USCG used this wording in describing this
NPRM: “Among other things, these regulations require owners or operators of
vessels and port facilities to develop security plans. Since promulgation of
the MTSA regulations, the Coast Guard has granted exemptions from MTSA
provisions on an ad hoc, individual basis. Through this rule, the Coast Guard would
formalize several categories of exemptions, which, in turn, will reduce the
burden associated with the current ad hoc waiver process.” The NPRM would “ clarify MTSA requirements in
response to requests for interpretation and guidance; formalize exemptions
from certain MTSA provisions, which would provide an annual savings of $125,000
to society.” ( DHS’ Retrospective
Review of Existing Regulations –Progress Report,
It is
not clear to me what the Coast Guard envisioned by “categories of exemptions,” or if these categories will be addressed
through adoption of policy guidance from PAC’s and NVIC’s. Is this a
substantive change between two drafts, or just another way of describing the
same thing? I hope to see language about exemptions in the NPRM. Those of us who
have spent considerable time drafting security measures at MARSEC 1, 2, and 3
to defend piles of commodities that “are not now and have never been regulated”
will be glad to see system-wide consistency.
And the
Coast Guard has advised the MTSA community in another forum that the current
FSO training initiative will be addressed in a separate NPRM that will probably
not be issued until fall 2013. It is unclear what incorporation of “voluntary
consensus standards” could mean, apart from changing “voluntary” to “mandatory.” This could generate some very interesting
scenarios as related to 33 CFR 105.215 and .210 training.
