DHS Semiannual Regulatory Agenda: MTSA 2

In the Monday February 13 2012 Federal Register, found at http://www.gpo.gov/fdsys/pkg/FR-2012-02-13/pdf/2012-1648.pdf, DHS will post the semiannual regulatory agenda. Of interest to MTSA facilities is the mention of MTSA 2, titled 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).”

The Notice gives an action date for a Notice of Proposed Rulemaking of September 2012.

In a search of Regulations.gov under the above docket number, one interesting item surfaces. In one of the files under this rulemaking, the Retrospective Review of Existing Regulations – Progress Report 1-20-2012, the following text appears under a discussion of Updates to Maritime Security Regulations: “The Coast Guard regulations implementing the Maritime Transportation Security Act of 2002 (MTSA) provide security measures for vessel and port facility operations in U.S. ports. 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.” Under Anticipated Savings in Costs and/or Information Collection Burdens, together with any Anticipated Changes in Benefits (please quantify, to the extent feasible, & also specify baseline, time horizon, & affected groups) appears the following:

• “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.”
  

It is difficult to interpret this statement in the light of the minimal savings figure given (did the Coast Guard forget some zeroes?) Perhaps MTSA 2 will enshrine PAC 57-05, Exceptions to Part 105 Applicability for Oil and Natural Gas Facilities and PAC 09-09, Exempting Facilities That Transfer and Store Asphalt, in the applicability section of 33 CFR 105. Most facilities that are going to get out of MTSA under these PAC’s are probably already out. It is difficult to envision wider exemptions in the new suite of regs (PAC 02-11) in the light of the small savings figure.

PAC 09-09 Certain asphalt facilities opting out of MTSA

Asphalt facilities seeking to waive the requirements of MTSA need to direct the letter to the COTP, not the Commandant (CG-54), as the document seems to indicate. In speaking with Coast Guard personnel across Districts, there is a possibility that there may be some variety of interpretation of the qualifying conditions, which are:

1. The facility stores less than 42,000 aggregate gallons of any other 33 CFR 154
cargoes.
2. The facility receives no vessels subject to SOLAS.
3. The facility receives no foreign flagged vessels.
4. The facility receives no passenger vessels.
5. The facility is not regulated under another applicability factor.

One approach in writing the request for waiver is to ensure that each of these five qualifying conditions is listed and underneath each, briefly describe how the facility meets the condition. Even if all the qualifying conditions are not met at the facility (example, receives foreign-flagged vessels; has a storage of more than 42,000 gallons of another substance regulated under 154), the facility may still request a waiver.

The Policy Advisory Council document describes the reasoning behind allowing the facilities to opt out of MTSA, based largely on the properties of the cargo. The risk introduced into the situation by the presence of the vessel is not similarly addressed.