CFATS-MTSA Harmonization

Since I have been unable to get any information out of ISCD on their efforts to work with the Coast Guard on the issue of harmonizing the rules for protecting potentially high-risk chemical facilities covered under the MTSA regulations, I am going to have to rely on another blogger, John C.W. Bennett at the Maritime Transportation Security News and Views blog, for a look at the issue from the Coast Guard perspective.

He wrote yesterday in a post on the recent National Maritime Security Advisory Committee (NMSAC)[format edited for readability]:

Fresh from his star turn on TWIC issues yesterday, Commander David Murk returned to brief the Committee on efforts to harmonize requirements of the Chemical Facility Anti-Terrorism Standards (CFATS) and the Maritime Transportation Security Act (MTSA) and its regulations. Currently, all facilities regulated under MTSA are exempt from CFATS. All other facilities that meet thresholds for “chemicals of interest” are subject to CFATS, resulting in similar facilities dealing with the same chemicals being regulated differently.

A working group is examining the overlaps and differences. The group’s charge includes examining:

(1) Whether there are differences significant enough to cause an undue risk at facilities covered by the lower requirements or to create an unbalanced playing field from a business perspective;
(2) whether there are security implications in having two different approaches to risk assessment;
(3) how can intelligence and regulatory information sharing be improved; and
(4) where is there a need for joint direction.

Thus far, the group has produced an Action Memo with a regulatory comparison identifying gaps and differences and a Recommendation to consider creation of regional structures for CFATS similar to MTSA’s Area Maritime Security Committees. At present, there have been no decisions on regulatory changes, merely identification of items that need to be looked at. The goal is to have similar facilities not treated differently in terms of either risk or protection.

As what the end result of the working group’s labors would be, CDR Murk replied that it would depend on this issue—either a legislative or a regulatory change might be necessary. One issue that had come up was the CFATS “Top Screen” requirement, a sort of on-line questionnaire completed by chemical facilities. These facilities are then classified into tiers, on the basis their Top Screen input, according to which chemicals they deal with and in what amounts. The Department of Homeland Security (DHS) wants a centralized data base on chemicals.

Agreement has been reached within DHS to go forward with a rulemaking to require applicable MTSA-regulated facilities to submit Top Screen inputs. The MTSA regulations would use the list identifying affected facilities that is in a CFATS appendix. MTSA-regulated facilities classified as CFATS Tier IV (not required to have a CFATS security plan) would still be required to have a MTSA Facility Security Plan.

A NMSAC member expressed concern that harmonization with CFATS would detract from MTSA’s maritime focus—MTSA met the international requirement to comply with the ISPS Code, but CFATS came from a different impetus. CDR Murk responded that the Coast Guard had opposed legislation that would exempt maritime CFATS facilities from regulation under MTSA.

My Analysis

John’s analysis of the harmonization issue is spot on with a couple of minor discrepancies on the CFATS information. I’ll address those to get them out of the way.

• First (and my anal retentive nature is showing here) the CFATS tier level are numbered 1-4 not I-IV.

• Finally, Tier 4 CFATS facilities are required to have a site security plan, but they may submit the information on that plan using an alternative format rather than answering all of the questions in the SSP tool in CSAT; an administrative rather than security difference.

I find it interesting that there is a plan to move forward with requiring MTSA covered chemical facilities to submit Top Screens. To make any sense the Top Screen rankings into tiers (actually the CFATS uses it to make just a preliminary tier ranking, to be later refined by a review of the security vulnerability assessment reported to ISCD) would have to result in increased security measures being required for higher rated facilities.

I am kind of concerned with John’s comment that: “The Department of Homeland Security (DHS) wants a centralized data base on chemicals.” If that was the comment that the Coast Guard briefer made, it would be expected to concern many manufacturers. If that is the sole justification for requiring the Top Screen submissions there will be a major push back to that regulation.

I understand the Department’s interest in knowing where chemicals of special security significance reside, but that information is generally available from other government agencies. While the Top Screen is the least burdensome component of the CSAT tools, it is still time consuming and requires resources to collect the required information. The certification of the information also places an additional legal liability on the organization submitting the Top Screen.

This also brings up another interesting question. Over 30,000 facilities completed Top Screen submissions in the initial run of Top Screens and a significant number of facilities have been removed from the CFATS program because of subsequent Top Screen submissions. With only about 5,000 facilities remaining in the CFATS program, what is DHS-ISCD doing with the Top Screen information provided by the ‘unregulated’ facilities? Are they maintaining a database of where the 300+ chemicals of interest can be found to aid in subsequent terrorist investigations (a DB which one hopes will never need to be used)?

I don’t know the answer and I’m not even sure that I know which way that I would want the question to be answered. While I can certainly make a number of arguments justifying the maintenance of such a COI database, I don’t think that was what Congress had in mind when they wrote §550. This might be an interesting oversight question for Congress in this session.