Maritime Transportation Security in the DHS Regulatory Agenda

Several proposed or planned regulations in the recently released “Spring 2011” DHS Semiannual Regulatory Agenda will impact maritime transportation security. Discussed herein are USCG actions regarding: STCW implementation, TWIC Reader requirements, Cruise Ship regulations, Maritime Security updates (MTSA II), Top Screen submissions by certain MTSA facilities, and expanded requirements for NOAD and AIS. Proposed TSA actions concerning disclosure of SSI in Federal Courts, standardized rules for Security Threat Assessments, and protection of SSI are also considered. All but one of the initiatives have been included in previous Agendas and, in most cases, the latest Agenda forecasts additional delay in accomplishing the proposed action.
Various components of the Federal Government, including the Department of Homeland Security, released the “Spring 2011” versions of each of their “Unified Agenda of Federal Regulatory and Deregulatory Action” on July 7th. Technically, what was published in the Federal Register is the “Regulatory Flexibility Agenda,” which covers any rule likely to have a significant economic impact on a substantial number of small entities.’ Of all the DHS forays into regulating maritime security that are within the planning horizon, only the long-awaited updates to the original 2003 regulations implementing the Maritime Transportation Security Act of 2002 were deemed to fall within this requirement. (These updates are known in the trade as the “MTSA II regulations.”) These and the rest of the Department’s Unified Agenda are briefly summarized on the website of the Office of Information and Regulatory Affairs.
Before diving into the maritime-security-related topics on which DHS has designs, it’s worth noting that the “Spring” Regulatory Agenda was out of date at the time of its publication. Apart from July 7th being after the summer solstice, one regulatory action that has yet to occur had been forecast for June. But don’t blame DHS for the delay in publication—its Regulatory Agenda was signed out by the General Counsel’s Office on February 23rd. The Director of the Regulatory Information Service Center did not sign off on the government-wide package until June 1st, after which it took more than a month to make it into print. OK, the estimated dates for actions are SWAGs to begin with. But the delay between their preparation within DHS (those familiar with the Way of the Bureaucracy will appreciate that the Coast Guard had to have its input to the Office of the General Counsel well before February 23rd) and their actual publication suggests the likelihood of supervening events and priorities that render them even less accurate. With that qualification, here is what DHS has in mind that could affect maritime transportation security, more or less in the order they appear in the Regulatory Agenda—Coast Guard items in the “Proposed Rule Stage,” then those in the “Final Rule Stage,” and finally “Long-term Actions,” followed by two Transportation Security Administration proposed rules and a long-term action.
STCW Implementation
One of the most procedurally complex actions involves the Coast Guard’s plans regarding “Implementation of the 1995 Amendments to the International Convention on Standards of Training, Certification, and Watchkeeping (STCW) for Seafarers, 1978″ and its associated Code. Initially the Coast Guard published an NPRM in March 1996 and held several public meetings. Eventually, in order to have something on the books around the time the 1995 Amendments went into force, the Service promulgated and Interim Final Rule in June 1997, with an effective date the following month. In November 2009, the Coast Guard took another crack at the apple, publishing a new NPRM to implement the Amendments while incorporating lessons learned under the interim rule. This was put on hold pending public comment on a Supplemental NPRM on implementing the 2010 Manila Amendments to the STCW Convention and Code, which were adopted last summer. (The 2010 Amendments deal with much more than security—and much of which is controversial within the US maritime industry—but do change the requirements for maritime security training including added requirements for anti-piracy training.) The Fall 2010 Regulatory Agenda had forecast the issuance of the Supplemental NPRM for February 2011. The Spring 2011 Regulatory Agenda moved the forecast issuance to June 2011. A related item on the Coast Guard list of “Long-Term Actions” is “undetermined” next action on its 2008 Interim Final Rule on implementation of STCW requirements for Vessel Security Officer training and certification, at a date “To Be Determined.”
TWIC Reader Requirements
Also listed as being in the Proposed Rule Stage is the Coast Guard’s long-awaited Transportation Worker Identification Credential (TWIC) Card Reader Requirements regulation. The estimated date for publication of an NPRM has again slipped—to December 2011. (The Fall Agenda had said November.) I would not rule out further slippage, as the December estimate was probably based on a Spring delivery of the Transportation Security Administration’s (TSA’s) Report to Congress concerning the TWIC Pilot Study. By this April, TSA was defining “Spring” as including “late Spring, or even early Summer.” Well, Spring has sprung and I’m not sure how long “early Summer” lasts, but we’re fast approaching one-third the way through the entire Summer. The item first appeared independently in the Fall 2008 Regulatory Agenda, after the reader requirements had been bifurcated from the rulemaking regarding issuance of TWICs and their use as “flash passes “Final Action” was forecast for August 2010.
Cruise Ship Rules
The Coast Guard has moved “Consolidated Cruise Ship Regulations” from Long-Term Actions category to the Proposed Rule Stage. Whereas in the Fall Regulatory Agenda the timing of the NPRM’s issuance was “To Be Determined,” it’s now forecast for July 2011. This rulemaking is described as proposing “requirements for the screening of all baggage, personal items, and persons—including passengers, crew and visitors—intended for carriage on a cruise ship. New screening regulations would enhance the Coast Guard’s broad role and responsibility of maritime security. It will implement an important facet of cruise ship security, further enhancing the overall security of passengers.” In this form, this item first appeared in the Spring 2009 Agenda, where the Abstract the proposal as providing “detailed, flexible requirements for the screening of persons, baggage, and personal items intended for boarding a cruise ship.” The Fall 2007 Abstract reworded the entire description, with the major substantive change being the elimination of the words “detailed, flexible.” An earlier incarnation of this proposal, “Consolidation of Cruise Ship Regulations,” appeared in the Fall 2006 Agenda, where it was described as moving existing security regulations for cruise ships and cruise terminals them into the MTSA regulations and establishing “standards” rather than “requirements,” not just for screening, but also for “screening equipment, and qualifications and training for screeners.” In addition, this version would have published “a prohibited items list for cruise ships.” The NPRM was forecast for June 2007. The following Spring’s Abstract reported that the Coast Guard had “withdrawn this rulemaking project in order to review the scope of the project.”
Maritime Security Updates
Next up in the Coast Coast’s Proposed Rule Stage items are the MTSA II Regulations, at this point officially called “Updates to Maritime Security.” These will consist of “certain additions, changes, and amendments to” Title 33 Code of Federal Regulations Parts 101 through 105, the implementing regulations for the Maritime Transportation Security Act of 2002 (MTSA). “The proposed changes would further enhance the security of our Nation’s ports, vessels, facilities, and Outer Continental Shelf facilities and incorporate requirements from legislation implemented since the original publication of these regulations in 2003. This rulemaking has international interest because of the close relationship between subchapter H and the International Ship and Port Security Code (ISPS).” At various conferences, Coast Guard speakers have said that the regulatory updates will incorporate various MTSA and TWIC/MTSA Policy Advisory Council decisions and other lessons learned from experience with the current regulations since their effective date in 2004. The Spring Regulatory Agenda estimates issuance of a NPRM in July 2011, a slippage from last Fall’s forecast of March. This item first appeared as a proposed rule called “Maritime Security (MTSA II),” with a less extensive description, in the Fall 2009 Regulatory Agenda. The original estimate for issuance of an NPRM was March 2010.Top Screen SubmissionsNew to the Spring Regulatory Agenda is a proposal to require ” Top Screen Information Collection from MTSA-Regulated Facilities Handling Chemicals.” Under the Chemical Facility Anti-Terrorism Standards (CFATS), DHS requires non-MTSA-regulated facilities that handle certain “chemicals of interest” to supply “Top Screen” information, which DHS uses to evaluate whether to treat the facility as high-risk. The Coast Guard proposal would require MTSA-regulated facilities to supply the same information without, however, subjecting them to CFATS requirements, even if they fell into the high-risk category. For a fuller explanation of Top Screen and CFATS, browse through P. J. Coyle’s outstanding blog, Chemical Facility Security News, where a post altered me to the publication of this proposal and the entire Spring Regulatory Agenda. The forecast timeframe for a NPRM is December 2011.
Expanded NOAD and AIS Requirements
The last Coast Guard item related to maritime transportation security is a planned Final Rule under the rubric of “Vessel Requirements for Notices of Arrival and Departure, and Automatic Identification System.” This proposal would expand Notice of Arrival and Departure (NOAD) and Automatic Identification System (AIS) requirements. “The NOAD portion of this rulemaking could expand the applicability of the NOAD regulations by changing the minimum size of vessels covered below the current 300 gross tons, require a notice of departure when a vessel is departing for a foreign port or place, and mandate electronic submission of NOAD notices to the National Vessel Movement Center. The AIS portion of this rulemaking proposes to expand current AIS carriage requirements for the population identified in the Marine Transportation Security Act (MTSA) of 2002.” The Coast Guard says the expanded requirements would increase “overall maritime domain awareness” by improving the Service’s ability to “identify and track vessels” through enhanced ability to “correlate vessel AIS data with NOAD data.” The expansion of AIS requirements, as proposed in the December 2008 NRPM proved quite controversial, at least in the small passenger vessel community. The publication of the Final Rule is projected for December 2011. It will be interesting to see how the Coast Guard responds to the concerns of the small passenger vessel operators.
Disclosure of SSI
Disclosure of SSI in Federal CourtsIn addition to these Coast Guard items, the DHS Regulatory Agenda also lists three actions by the Transportation Security Administration (TSA) that could impact maritime transportation security. First is a proposed rule, “Sensitive Security Information: Disclosure in Federal Civil Court Proceedings.” This is in response to section 525(d) of the DHS Appropriations Act of 2007, which allows civil litigants in federal courts access to Sensitive Security Information under certain circumstances. “This proposed rule would establish an administrative process by which a limited number of individuals representing parties in Federal civil court proceedings would apply to TSA for access to SSI for use in the litigation.” I’m not sure what constitutes a “limited number,” but I hope TSA doesn’t intend to set up a closed bar of attorneys authorized to access SSI. The NPRM is forecast for September 2011 (Last Fall, it was going to be issued in June.)Standardized Rules for Security Threat AssessmentsTSA will also propose new regulations on “Standardized Vetting, Adjudication, and Redress Services” in order to “revise and standardize the procedures, adjudication criteria, and fees for most of the Security Threat Assessments (STA) of individuals for which TSA is responsible.” This opens the possibility that rules applicable to persons applying for Transportation Worker Identification Credentials (TWICs), although the description of the scope of the rulemaking could indicate to the contrary, as maritime transportation workers are not specifically mentioned while those from other modes are. The proposed regulations will cover “transportation workers from all modes of transportation who are required to undergo an STA in other regulatory programs, including certain aviation workers and frontline employees for public transportation agencies and railroads.” In addition, “TSA plans to improve efficiencies in processing STAs,” which would be good news for TWIC applicants, if they are included. Issuance of the NPRM is currently forecast September 2011 (it was May 2011 in the Fall Regulatory Agenda).Protection of SSIFinally, TSA retains “Protection of Sensitive Security Information (SSI)” on its list of “Long-Term Actions,” although the nature of the action is “Undetermined.” An Interim Final Rule, codified as 49 CFR Part 1520, was published in May 2004 and we’ve been living under it since its effective date of June 17, 2004. The Abstract of this item indicates that TSA “will issue a rulemaking document responding to comments received on the May 18, 2004, interim final rule (IFR).” Responding to public comments is what federal agencies are supposed to do before promulgating Final Rules, so one has to wonder what TSA has been doing for the last seven years and why the nature of future action is “Undetermined” instead of a Final Rule. Perhaps TSA has an excuse for inaction following the President’s issuance of an Executive Order designed to establish “an open and uniform program for managing information” that is not classified but “requires safeguarding or dissemination controls” and is now to be called Controlled Unclassified Information” or CUI. Actually, President Bush had tried to do this with a Memorandum For The Heads Of Executive Departments And Agencies that he signed in May 2008—so maybe TSA’s “excuse” runs from then. But TSA gave up on the issue much earlier than that. Up through the Fall 2006 Regulatory Agenda, TSA stated the intention to promulgate a Final Rule (then estimated for December 2006) and listed the action as being in the Final Rule Stage. In the Spring 2007 Regulatory Agenda, the item was moved to the Long-Term Actions list and called “Final Action” with the timing “To Be Determined.” That status lasted until the Spring 2009 Regulatory Agenda, when all sense of finality was lost, as the item description became “Next Action Undetermined.” In any event, Initial Implementation Guidance for the Executive Order was issued in mid-June of this year. Although it does not directly address SSI, this guidance does indicate that CUI categories that have a statutory basis, as SSI does, will be retained as categories or subcategories. The only obvious change for SSI in the Interim Guidance is that it is to be marked “Controlled Unclassified Information — Sensitive Security Information,” or maybe “”Controlled Unclassified Information —SSI,” instead of just “Sensitive Security Information.” This is hardly a matter worth delaying issuance of a Final Rule further.
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By Professional Mariner Staff