New Information on Update to Subchapter H

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,

http://www.regulations.gov/#!documentDetail;D=DHS-2011-0015-0068).  

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.

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.

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.”

Notice of NMSAC Meeting, Jan. 18-19

In the Monday, January 9, 2012 Federal Register, the Coast Guard posted a meeting notice for the National Maritime Security Advisory Committee. This notice may be found in its entirety at http://www.gpo.gov/fdsys/pkg/FR-2012-01-09/pdf/2012-105.pdf. The Committee will meet on Wednesday, January 18, 2012 from 9 a.m. to 3 p.m. and Thursday, January 19, 2012 from 9 a.m. to 12 p.m. This meeting will be broadcasted via a web enabled interactive online format and teleconference. To participate via teleconference, dial (866) 717–0091, the pass code to join is 3038389#. Additionally, if you would like to participate in this meeting via the online web format, please log onto https://connect.hsin.gov/r11254182 and follow the online instructions to register for this meeting.

Agenda of Meeting

Day 1

The agenda for the Committee meeting is as follows:

(1) Maritime Domain Awareness and Information Sharing. The Committee will hold a discussion and will be tasked with developing guidelines and recommendations for the Coast Guard in enhancing information sharing between the maritime industry and the Federal Government;

(2) Maritime Transportation Security Act/Chemical Facility Anti-Terrorism Standards Harmonization. The Committee will receive a brief and offer recommendations on the harmonization efforts of the Coast Guard and the Department of Homeland Security for these two regulatory programs;

(3) Transportation Worker Identification Credential. The TWIC working group will provide an update on the implementation of the TWIC program from the industry perspective. The Transportation Security Administration will also provide an update on the development of TWIC readers;

(4) Public comment period.

Day 2

(1) Maritime Transportation Security Act (MTSA). The Committee will be briefed on upcoming regulatory actions associated with updates to MTSA;

(2) Global Supply Chain Security Initiative. Per the SAFE Port Act (Pub.L. 109–347) NMSAC continues to be consulted in regards to the Global Supply Chain Security Initiative. The Committee will receive an update on this initiative;

(3) Requirements for vessel guards while in port. NMSAC will review and provide comment on requirements for vessels to post or contract for guards while in US ports;

(4) Underwater Terrorism Preparedness Program. NMSAC will receive a brief on the Coast Guard Underwater Terrorism Preparedness Program;

(5) Public comment period.

FOR FURTHER INFORMATION CONTACT: Mr. Ryan Owens, ADFO of NMSAC, 2100 2nd Street SW., Stop 7581, Washington, DC 20593–7581; telephone (202) 372–1108 or email ryan.f.owens@uscg.mil. If you have any questions on viewing or submitting material to the docket, call Renee V. Wright, Program Manager, Docket Operations, telephone (202)366–9826.

Upcoming USCG MTSA Policy Releases

An examination of presentations recently given by U. S. Coast Guard personnel have indicated that we can expect the following policy guidance to be released (in the near future?):

• Guidance on handling breaches of security (may already be out in the form of internal USCG document)
• Expanded guidance on seafarer access
• NVIC 03-07 update, possible in the form of a change
• TWIC Canceled Card List enforcement guidance