Friday, May 25, 2012

Here are some thoughts I would like to share in the wake of the spreading rumors that the Office of Management and Budget has killed the update of Subchapter H, commonly called MTSA 2.

The U. S. Coast Guard does not promulgate regulations just to give headquarters personnel something to occupy their time.  This update to vital maritime security regulations fulfilled several important roles, including incorporating best practices and lessons learned since 2004, clarifying sections in the regulations that over the years have proved to need that clarification, and giving more guidance on resource-intensive activities such as screening and training.

Some of these roles that would have been filled by the new regulations will have to be filled by some other method. I submit that that Coast Guard will probably use the medium of Policy Advisory Council documents, or PAC’s. 

Persons who generally rejoice when any new proposed regulations die need to take a closer look at this situation. The MTSA Policy Advisory Council is made up of senior Coast Guard officials.  My default position is to assume that all PAC’s are well-researched and have the support of field personnel; at least that was my position until PAC 02-11 came out.  This PAC showed us that flawed documents can be issued by this group.

Another concern is the fact that there is no mechanism in place for input or appeal of a PAC, outside of the appeal mechanism contained in 33 CFR 101.420.  Input/comment by affected stakeholders is an important part of the regulatory process, it’s built into the process. PAC’s are fiats. The names of the “senior Coast Guard officials” who make up this Council are not even readily available, and that makes me nervous.

On May 22, 2012, the Senate Committee on Appropriations issued Report Number 112-169.  This is the report accompanying Senate Bill 3216, the FY2013 appropriations bill for the Department of Homeland Security.  Among many other provisions, the Report states on p.16:

The Committee is concerned that the Department has not yet implemented section 821 of the Coast Guard Authorization Act of 2010 (Public Law 111–281) to enhance and upgrade Federal waterfront facility security officer [FSO] training and lead to the Federal certification of FSOs. Implementation will help harmonize security training at marine terminals. The Committee directs DHS and the Coast Guard to move forward with all deliberate speed to issue these new national training requirements.