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.

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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.

Certain MTSA Facilities Dealing in Low Risk Cargoes May Now Obtain a Waiver from 105

On July 26, 2011 the U. S. Coast Guard posted on their HOMEPORT site MTSA Policy Advisory Council decision (PAC) 02-11, Waiving Facilities that Transfer Certain Low Risk Commodities. The PAC states that “the Coast Guard has taken a closer look at some of the regulated cargoes and their physical properties and has concluded that handling them would likely not contribute to a TSI.” This PAC relieves facilities only of requirements under 33 CFR 105 and does not relieve the vessel of any requirements. Included in this list of cargoes are aggregate, cement, coal, grain, vegetable oils, and pet coke. The following conditions must apply:

1. The facility is not regulated under any other applicability factor;

2. The facility has storage capacity of no more than 42,000 gallons of any other regulated substance;

3. The facility receives no vessels subject to SOLAS;

4. The facility receives no foreign flagged vessels;

5. The facility receives no passenger vessels certificated to carry more than 150 passengers.

Facilities that meet all of the criteria listed above may send a letter to the COTP in their area, requesting that their Facility Security Plan (FSP) be withdrawn. Facilities that meet some, but not all of the criteria may forward a request for a waiver under 33 CFR 105.130 to Commandant (CG-54) requesting permission to waive the requirements of 33 CFR 105 at their facility.