Coast Guard Publishes TWIC Reader Delay NPRM

Yesterday the Coast Guard published a notice of proposed rulemaking (NPRM) in the Federal Register (83 FR 29067-29081) proposing to delay for a set of specific facilities and vessels the implementation date of the TWIC Reader Rule. The reason for this rule is an industry petition [.PDF download] that questions the inclusion of these facilities and vessels in Risk Group A. The three-year delay in the implementation date for just these facilities and vessels will allow the Coast Guard to review the Risk Group A assessment standards and initiate a new rulemaking if required.

The Petition

The industry petition stated (pg 2):

“Specifically, the petition requests the Coast Guard to promptly initiate a rulemaking that would amend the final rule to conform its coverage of “facilities that handle Certain Dangerous Cargoes (CDC) [Definition link added] in bulk” to those portions of facilities where the transfer to or from a vessel of CDCs in bulk occurs or is capable of occurring. This revised scope would be consistent with long-standing Coast Guard policy regarding CDC facilities and the requirement of a maritime nexus.”

The concern is that there are some facilities that have handle CDC in bulk (via truck or railroad) but those handling facilities have nothing to do with the maritime activities at the facility. Since the risk that the Coast Guard is responsible for mitigating is the risk of a maritime transportation security incident and these CDC activities have no maritime nexus, the TWIC Reader Rule should not apply to these facilities.

The Response

The Coast Guard is not currently judging the merits of the petition. It does acknowledge, however, that additional study is needed. The Coast Guard needs to determine if a more limited definition of CDC handling facilities needs to be included in the regulations or if specific guidance needs to be established to allow for a consistent waiver process to identify facilities without a maritime nexus for a transportation security incident that could be exempted from the TWIC Reader Rule requirement.

The three-year extension of the TWIC Reader Rule for CDC handling facilities that do not transfer CDC cargos to or from a vessel will allow the Coast Guard to further study the matter and initiate a new rulemaking if required.

The NPRM would modify the sub-paragraphs of 33 CFR 105.253(a) to change the description of the affected parties to the TWIC Reader Rule by adding verbiage to identify the status of a facility with respect to its transfer of CDC to or from a vessel. It would be changed to read:

“(1) Beginning August 23, 2018: Facilities that receive vessels certificated to carry more than 1,000 passengers.

“(2) Beginning August 23, 2018: Facilities that handle Certain Dangerous Cargoes (CDC) in bulk and transfer such cargoes from or to a vessel.

“(3) Beginning August 23, 2021: Facilities that handle CDC in bulk, but do not transfer it from or to a vessel.

“(4) Beginning August 23, 2021: Facilities that receive vessels carrying CDC in bulk but, during the vessel-to-facility interface, do not transfer it from or to the vessel.”

Public Comments

The Coast Guard is soliciting public comments on this proposed rulemaking. Comments may be submitted via the Federal eRulemaking Portal (www.Regulations.gov; Docket # USCG-2017-0711). Because of the short time frame until the TWIC Reader Rule goes into effect on August 23^rd, 2018, comments must be submitted by July 23^rd, 2018.

Commentary

The petition that prompted this NPRM inadvertently raises again the issue of the exemption from the Chemical Facility Anti-Terrorism Standards (CFATS) program for facilities covered by the Maritime Transportation Security Act (MTSA). The crafters of the CFATS authority (both the initial authorization in the 2006 DHS spending bill and the subsequent re-authorization in 2014) recognized that there was no need for the CFATS program to regulate facilities that were already covered under the MTSA.

The Coast Guard has long allowed facilities a certain amount of leeway to define the perimeter of the MTSA covered facility. While the waterfront facing portion of the facility is certainly covered by the MTSA rules, facilities have been encouraged to include the remaining portions of the facility in their security plans as part of an unofficial defense-in-depth approach to preventing attacks on the clearly maritime portion of the facility.

It would appear from this petition and the Coast Guard’s response in the form of this NPRM that there has been an expectation in the industry that the Coast Guard would be more lenient in their security requirements for portions of the facility more removed from the maritime transportation nexus of the facility. Never having worked at an MTSA covered facility I cannot personally testify to the accuracy of this expectation, but it would appear to me to be a reasonable approach by the Coast Guard.

Unfortunately, this would mean that significant portions of many larger MTSA facilities would not be under the same sort of security regime that either the maritime facing portion of the facility or facilities regulated under the CFATS program. This would be especially true for portions of the facility that did not contain CDC but did store, produce, or handle chemicals that are identified as theft/diversion chemicals of interest under the CFATS program.

During the reauthorization of the CFATS program that needs to take place this year, Congress needs to specifically re-look at the blanket exemption MTSA covered facilities are give to the CFATS program. I certainly do not advocate a wholesale voiding of that exception. The Coast Guard is the obvious agency to regulate security at the strictly maritime facing portions of the facility and has a legitimate interest in the security at the remaining portions of connected facilities since that has a direct impact on the security of the waterfront.

What the Congress needs to do is to craft a closer working relationship between the Coast Guard and the CFATS’ Infrastructure Security Compliance Division to ensure that there are adequate security measures at these MTSA facilities for theft/diversion security threat chemicals that are precursors for improvised chemical munitions and/or explosives.

A relatively simple way to do that would be to require MTSA covered facilities to submit Top Screen’s to ISCD to allow ISCD to do a full chemical-terrorist threat assessment for the facility. Then instead of notifying the facility that it was a covered facility under CFATS where it would normally be appropriate to do so, it would notify both the MTSA covered facility and the local Captain of the Port that the facility’s security plan should address the security measures necessary to protect the identified DHS chemicals of interest at the facility. The Coast Guard would then be responsible for regulating the security for those chemicals as part of its oversight of the existing MTSA mandate.