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.

Information on Problems with CFATS Program, Care of Chemical Facility Security News

My good friend and fellow blogger Patrick Coyle has been reporting on the problems with the CFATS program in his blog Chemical Facility Security News, http://www.chemicalfacilitysecuritynews.blogspot.com. As always, his reporting is very objective and thorough. This morning (Feb. 3, 2012) he posted information concerning hearings about CFATS that are being conducted by the House Energy and Commerce Committee. This post included a link to a Committee Staff Background Memo that contained a summary of the problems that the CFATS program has experienced. The memo can be found at:

http://republicans.energycommerce.house.gov/Media/file/Hearings/Environment/020312/HMTG-112-IF18-20120203-SD001.pdf, and parts are reproduced below. This information will be of interest to the many MTSA facilities who will be required to submit a Top-Screen and who will be affected by the CFATS-MTSA harmonization.

“On March 31, 2011, DHS Undersecretary of NPPD, Rand Beers, testified before the Subcommittee on Environment and the Economy that CFATS covered 4,744 high-risk facilities nationwide and that 4,126 facilities had received final high-risk determinations. In addition, Mr. Beers stated that while more than 4,100 facilities have submitted Site Security Plans (or Alternative Security Programs) to date -- and DHS was in the process of reviewing these submissions, DHS was still issuing final tier notifications to facilities across all four risk tiers.

In addition, Mr. Beers testified that more than 39,000 facilities had registered with DHS and completed the top-screen process. Of these facilities, DHS considered more than 8,064 as high risk and required them to submit a site vulnerability assessment. To determine if a facility is to be regulated as high risk and, if so, which tier it falls into, DHS uses a computer system that assesses risk based upon potential worst-case scenarios for a particular facility. On July 21, 2011, DHS officials informed Committee staff that in May 2010, CFATS program officials realized they had used improper inputs and modeling in the computer assessments for the formal tiering process, resulting in improper tiering of 600 facilities between the end of 2009 and spring 2010. In addition, DHS officials made clear that CFATS officials at that time consciously chose to not tell anyone about it. After personnel changes for the CFATS program, an internal investigation in Summer 2011 led to notifications of those facilities that had received a corrected CFATS risk tier as a result of a June 27, 2011, re-tiering process. Specifically, 148 facilities were tiered at a lower risk tier, 99 facilities were found not to need a tier and no longer became subject to CFATS regulation, 41 facilities have either data errors that still need correction or have their redetermination under review, and 175 facilities remain in the same level but will have the risk levels for their chemicals of interest decrease.

Following the “mis-tiering” episode, the new Director of Infrastructure Security Compliance Division, Penny J. Anderson, and her Deputy Director, David M. Wulf, conducted an internal review of the entire CFATS and Ammonium Nitrate programs at DHS, summarizing their findings in a November 10, 2011, memorandum to Undersecretary Rand Beers and Assistant Secretary David Keil. Fox News ran a print story about the contents of the report on December 21, 2011.1

The report identifies five (5) main programmatic challenges for the CFATS program: inadequate training capability, an overreliance on hired consultants for expertise, inappropriate transitions for new hires, uncertainty from extremely short program authorizations, and issues regarding job descriptions and the presence of an employee union. It also lists nine (9) staffing challenges for the CFATS program, including inexperienced managers, personnel placed in jobs for which they are not qualified, inadequate internal staff control, and lack of regulatory compliance expertise. Following the internal memorandum, the Department prepared a list of recommendations for correcting the troubles plaguing the program. It identifies the highest program priorities: speeding up the SSP review process, preparing for compliance inspections, and development and implementation of a personnel surety program for CFATS. The only legislative recommendation made in the report was a long-term extension of the existing program.”

Reduction in TWIC fee effective 03/19/2012

I check the TSA TWIC website (http://www.tsa.gov/what_we_do/layers/twic/index.shtm) on a regular basis. Sometime in the last several days, the following was posted:

Effective March 19, 2012, the fee charged by the Federal Bureau of Investigation (FBI) for electronically processing fingerprint-based criminal history records information (CHRI) will decrease from $17.25 to $14.50 - a reduction of $2.75. As a result, the enrollment fee for the TWIC program will reduce from $132.50 to $129.75 (effective March 19, 2012). Additional information is provided in the related Federal Register Notice, dated December 20, 2011, located at: www.gpo.gov/fdsys/pkg/FR-2011-12-20/pdf/2011-32544.pdf. Click here to read questions and answers related to this issue.

Rev. 6 of MARSEC Directive 104, Counter-Piracy Guidance for 104 Vessels

In the Monday, January 30, 2012, Federal Register, the Coast Guard announces the release of Maritime Security (MARSEC) Directive 104–6 (Rev 6). This Directive only applies to U.S.-flagged vessels subject to the Maritime Transportation Security Act (MTSA) on international voyages through or in designated high risk waters, and provides additional counter-piracy guidance and mandatory measures for these vessels operating in these areas where acts of piracy and armed robbery against ships are prevalent. MARSEC Directive 104–6 (Rev 6) also includes an annex that provides specific direction for vessels operating around the Horn of Africa.

MARSEC Directive 104–6 (Rev 6), the Directive that is the subject of this notice of availability, provides a revised and updated list of designated high risk waters and areas. MARSEC Directive 104–6 (Rev 5) is no longer valid with the issuance of (Rev 6).

Owners and operators of U.S.-flagged vessels that travel on international voyages must contact their local COTP, cognizant District Commander or the Office of Vessel Activities to acquire a copy of MARSEC Directive 104–6 (Rev 6).

John Bennett's MPS Blog Post About NMSAC Meeting Jan. 18, 2012

My good friend and fellow blogger, John Bennett, was present via phone at the meeting of the National Maritime Security Advisory Committee held in Washington DC Jan. 18-19, 2012. He has an excellent report of the meeting on his blog at Maritime Protective Services, at http://mpsint.com/2012/01/20/results-of-the-january-2012-nmsac-meeting-%E2%80%93-part-i/. Members of the MTSA community should check this blog on a regular basis and particularly read all posts by John on the NMSAC meeting. Below is the portion concerning MTSA 2, which I am reproducing below. This update from the Coast Guard contains the same ominous language regarding screening and NVIC 06-04 that I have noted in earlier posts.

“Updating the MTSA Regulations

The NMSAC Executive Director was then asked to address to long-gestating “MTSA II” regulatory update of the original regulations promulgated to implement the Maritime Transportation Security Act of 2002. He started with the premise that the Administrative Procedure Act, which lays out the hoops through which the Government has to jump to produce regulations, limits the detail in which regulatory proposals can be disclosed outside formal rulemaking channels. The plan is to incorporate into the existing regulations lessons learned through experience with the current regulations, including numerous Policy Advisory Council decisions and screening standards from Navigation and Vessel Inspection Circular (NVIC) 06-04, as well as new provisions implementing the additional requirements of the SAFE Port Act. This would not be a complete rewrite of the existing regulations.

The Coast Guard had hoped to have the NPRM out last summer, but this was not to be. The proposal needs internal DHS scrutiny and then OMB review before it can be published. The Coast Guard will have several public meetings on the proposal once it’s published. As a constantly moving target, these are hard to budget for. Asked about the impact of pending SAFE Port Act legislation, he replied that, as currently drafted, it had little impact on the Coast Guard. Later, during the public comment period, my good friend and fellow blogger, Laurie Thomas asked if MTSA II would reconcile earlier MARAD-approved Facility Security Officer training with the requirements contained in the Coast Guard Authorization Act of 2010 [in Section 821]. Captain Kiefer replied that this would be addressed in a separate rulemaking, probably in 2013, although the Coast Guard might put out an interim policy sooner. If so, that would be run by NMSAC first. Laurie also noted that NVIC 06-04 set a very high standard for screening. She asked if the Coast Guard had conducted anysurvey of industry screening practices and suggested, based on experience gained while training Facility Security Officers, that there would be substantial industry push back if the Coast Guard attempted to make the voluntary standards of the NVIC compulsory. Captain Kiefer thanked her for providing that information about the industry. A NMSAC member proposed that the Committee come up with suggestions for inclusion in the rulemaking, rather than waiting for USCG taskings on specific issues.”