Tuesday, December 28, 2010

Reader Comment MTSA-CFATS MOU

Laurie Thomas left a comment on yesterday’s blog post on the Maritime Transportation Security Act (MTSA) regulation update discussed in the recently updated Regulatory Agenda. Laurie questions whether the federal government is agile enough to include the purported ISCD-Coast Guard memorandum of understanding on CFATS-MTSA harmonization in the planned update of the MTSA regulations.

Laurie certainly has a legitimate point. If the Coast Guard were to publish their MTSA update notice of proposed rule making (NPRM) in March as stated in the Regulatory Agenda, it would be very surprising for it to include anything new in the MOU.

There is no inherent reason why such information couldn’t be included in the new draft regulations, but most of us do not expect federal bureaucracies to be able to respond that quickly. Physically writing the appropriate language into the proposal wouldn’t take more than a day or so. Determining the details of how to implement an MOU, determining just what parts of the Code of Federal Regulations (CFR) need to be addressed to implement the MOU and getting political approval for making those changes are what takes so much of the time.

One would like to think that most of that decision making process would have been included in the development of MOU itself. Unfortunately, this is not the case in practical politics. This is because there is a completely different level of political commitment involved in actually changing regulations, which is inherently a public process, and obtaining an internal DHS agreement to change regulations which is not a public at all.

There is, of course, a perverted sort of hope that there still will be a chance that the harmonization issue will be addressed in the update to the MTSA regulations. Since this proposed rule has had its NPRM publication date slip a number of times (according to the 2010 Spring Regulatory Agenda it was supposed to be printed last November and that represented a substantial delay from the 2009 Fall Regulatory Agenda) it will probably slip once again. DHS has had a poor record of living up to its public estimates of how long the regulatory process takes to get something accomplished.

I suspect that these delays are not limited to DHS, but that is the only agency that I track closely. And from what I hear through the grapevine, these delays are not entirely the fault of DHS. It seems that the political approval process at the White House relegates these issues to the bureaucratic back burner while the Administration focuses on its own political priorities. And this is certainly not new to the Obama Administration. I am afraid that this is an inherent part of our political process.

It is just possible that the pressure from the Senate (the last two Senate Appropriation Committee reports on budget bills have included a requirement for DHS to report back to Congress on the progress of the harmonization issue) to get some sort of chemical security harmonization agreement implemented will drive the next revision of the proposed NPRM to include implementation of at least some of the provisions of the as yet unseen memorandum of understanding.

1 comment:

John C. W. Bennett said...


An other example of the Government's regulatory inflexibility is failure of the MTSA Regulations Update write up in the Regulatory Agenda to mention the Coast Guard Authorization Act of 2010 at all. Training is not the only area of the MTSA Regs affected by that Act.

It looks like the write up was prepared and sent up the chain before the Authorization Act was passed. Evidently, the two months and five days between Presidential signature and publication of the Regulatory Agenda was insufficient to allow for modification.

I would hope that the Coast Guard would crank the changes made necessary by the Authorization Act into the MTSA Regs Update NPRM. That would probably cause additional slippage in the publication date, however.

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