MTSA Training Course Update from Maritime Commons

Maritime transportation security act training course update -

On May 28, 2015, the following was posted on the Coast Guard’s Maritime Commons blog, at http://mariners.coastguard.dodlive.mil/2015/05/28/5282015-maritime-transportation-security-act-training-course-update/:

“The Coast Guard is pleased to see the large number of maritime industry employees who choose to take part in the voluntary Maritime Transportation Security Act Training Course Program, choosing to attend courses reviewed and approved via a Coast Guard accepted Quality Standard System, or QSS.

The Coast Guard was informed that one of the accepted QSSs, Det Norske Veritas – Germanischer Lloyd, has withdrawn from certifying FSO, CSO, MSLEP and FPSSD courses. The American Bureau of Shipping is a QSS organization accepted by the Coast Guard and continues to participate in the certification process of these courses.

Additional information can be found on the Coast Guard’s facilities webpage.

Effective security training for maritime industry professionals is critical to the success of the nation’s security efforts. As the Coast Guard continues to develop regulations to establish comprehensive FSO training requirements, maritime industry employees with security duties are strongly encouraged to take approved courses.”

Here are some take-aways from this post:

1.  At this point, ABS is the sole course certifier for FSO, CSO, MSLEP and FPSSD.

2.  The Coast Guard continues to “strongly encourage” maritime industry employees with security duties to take approved courses. Because the new regulation mandating training is not yet in effect, strongly encourage is all they can do, but a word to the wise ought to be sufficient.

Persons who are hoping  that the Coast Guard may grandfather any FSO currently serving or who has received any sort of FSO training (4 hours? 2 hours?), and only require new FSOs to become certified under the new regulations, should probably take a look at the communications that have come out from CG-FAC supporting approved courses.

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.

DTOS 59-11-R-00307 Presolicitation Notice, Maritime Security Training

On March 11, MARAD posted a presolicitation notice for contractor services to assess maritime security training courses. The notice is posted in its entirety below.

The Maritime Security training course assessor (hereinafter "Contactor") shall act on behalf of MARAD and the USCG hereinafter (Government) to evaluate maritime security training courses proposed by training providers to ensure conformity with applicable Government requirements. The Contractor shall issue documents of compliance to training providers whose curricula, instructors, facilities, materials and method of instructions conform with applicable requirements. The Contractor shall maintain records that describe the scope of all evaluations performed and track the documents issued. The processes and procedures by which the Contractor performs these services shall be governed by a recognized Quality Standards System (QSS) that will be subject to periodic review by Government Officials. All responses SHALL BE COAST GUARD QSS CERTIFIED.

Responses are to be submitted to MARAD by April 15, 2011.

Some points to be noted include:

1. The contractor will be reviewing both MARAD and USCG security training courses.

2. The contractor needs to be QSS certified, which really narrows the scope. According to the USCG website(3/8/2010) at http://www.uscg.mil/nmc/faq/vso_rule_making.asp, the Coast Guard-approved QSS organizations are as follow: American Bureau of Shipping (ABS), Det Norske Veritas (DNV) and American Council of Education (ACE).

3. Who may be disqualified from responding? NVIC 97-9, Guidance on STCW Quality Standards Systems (QSS) for Merchant Mariner Courses or Training Programs, states, (5)(k), “Coast Guard-accepted QSS organizations must be completely independent of any organizations offering training. Coast Guard-accepted QSS organizations may not exercise direct or indirect managerial or financial control through contract or understanding over any training organization. Likewise, training organizations may not exercise direct or indirect managerial or financial control through contract or understanding over any Coast Guard-accepted QSS organization.”

(Thanks to John Bennett for calling this to my attention and resulting excellent discussion and Steven Sawhill of DNV for excellent discussion.)

Small Vessel Security course

The University of Findlay has submitted a proposal to FEMA to develop a small vessel security course through the Rural Domestic Preparedness Consortium (RDPC.) In recognizing the need for consistent, quality training which addresses the challenges facing the rural response and planning community, Congress and the Department of Homeland Security established the Rural Domestic Preparedness Consortium to develop and deliver relevant all-hazards training in support of rural homeland security requirements. All training developed under RDPC is DHS-certified and delivered free to the end user. For the RDPC, the University developed AWR 144 Port and Vessel Security for Public Safety and Maritime Personnel, which has been presented in 40 locations across the U.S. Among the topics covered in this course are the security responsibilities of marine terminals under 33 CFR 105.

In support of course development, the small vessel security stakeholder community will be given an opportunity to participate in an on-line survey concerning course topics and structure. The link to the survey is http://surveys.jsc.eku.edu/SmallVesselSecurity.html. We will also have an exhibit at the Small Vessel Security Threat Conference in Miami, FL, February 8 - 9, 2011, where we will be glad to network with the small vessel security stakeholder community about this course and other maritime security initiatives offered by RDPC.

DHS Semiannual Regulatory Agenda - Update to Subchapter H

On December 20, 2010, DHS published its semiannual regulatory agenda. An item of particular interest to the MTSA community is found on pages 79538 and 79554 of that day’s Federal Register. These pages address the Notice of Proposed Rulemaking (NPRM) that contains the updates to Subchapter H, 33 CFR 101 to 106.

The NPRM will incorporate clarifications to MTSA, SAFE Port, and the Coast Guard and Maritime Transportation Act of 2006. It will also incorporate feedback received from industry stakeholders, USCG field personnel, and the general public. It will consolidate into regulations policy guidance transmitted through Policy Advisory Council (PAC) decisions, NVIC’s, and MTSA Help Desk responses.

The NPRM will also:

· address screening standards for port facilities and vessels;

· establish security training standards that will be modeled after the courses developed by MARAD and the training standards (mandatory and non-mandatory) and courses developed by the International Maritime Organization (IMO)

· update existing regulations regarding the areas of maritime security plans, facility and vessel security plans, and facility exercise requirements found in SAFE Port.

The NPRM will incorporate recommendations from MERPAC. Homeport contains an excellent MERPAC reference site at Missions > Ports and Waterways > Safety Advisory Committees > MERPAC

The priority of this NPRM is described as “economically significant.” “Based on preliminary analysis, the Coast Guard determined that 55 percent of operators affected by this rulemaking are small entities. This rulemaking would require operators to incur additional costs for training and exercise provisions.” (Note that screening provisions are not mentioned as a factor that will drive up costs.) In a discussion of anticipated costs and benefits, DHS states, “The Coast Guard is currently estimating the costs associated with this rulemaking. Industry would incur additional costs as a result of provisions for standardized training requirements, updates to security plans and other documentation, and full-scale exercises requirements for high-risk facilities.”

The NPRM will incorporate “various U.S. Maritime Administration and International Maritime Organization voluntary consensus standards related to maritime security training,” a change from “voluntary” to “mandatory” that MARAD has been warning industry about for years.

The action date for the issuance for the NPRM is March 2011.

What all this may mean for the MTSA community:

Screening standards: In speaking of the NPRM, USCG senior personnel described the new standards as “airport-type.” Standards of this type will have a problem surviving the comment process. The USCG admits that 55% of regulated operators are small entities.

Security training standards: There are several training protocols to consider: the MARAD voluntary standards; SAFE Port Act Section 113, and the training standards in Public Law 111–281, the Coast Guard Authorization Act of 2010 (which repealed SAFE Port Section 113.) In the very bare information given in the 12/20 notice, it appears that the detailed training requirements in SAFE Port and Pub. L. 111-281 may be sidelined in favor of the codification of MARAD’s voluntary course approval process.

Maritime Security Plans: Plans are addressed in Sec. 102 of the SAFE Port Act. Specifically, plans must be resubmitted for approval if there is a change of ownership in a facility that may substantially affect the security of the facility. FSO’s (or “the qualified individual having full authority to implement security actions for a facility”) shall be a citizen of the United States. This requirement can be waived if the individual undergoes a complete background check and a check of all terrorist watch lists. The effectiveness of these plans is supposed to be verified by not one but two annual inspections, one of which is to be unannounced. The USCG is presently substituting spot-checks for the second (unannounced) annual inspection.

Exercises – Exercises are addressed in Sec. 115 of SAFE Port. Each “high risk” facility (MSRAM score, presumably) must conduct a live or full-scale exercise every second year.

The Regulations.gov docket number for comment on this rulemaking is USCG-2007-0009. Members of the MTSA community who have an opinion about the NPRM - “for” as well as “against” - should submit comments when it comes out, hopefully in March 2011.