Wednesday, November 11, 2009

MTSA Provisions in H.R. 2868

When the House of Representatives passed H.R. 2868 last week, one of the objectives was to correct the perceived deficiencies in the current Chemical Facility Anti-Terrorism Standards (CFATS), published at 6 CFR Part 27. One specific shortcoming addressed in H.R. 2868 was the removal of the CFATS exemption for facilities covered under the Maritime Transportation Security Act (MTSA). H.R. 2868, as passed in the House, would specifically cover chemical facilities required to submit an MTSA facility security plan, pursuant to Section 70103(c) of Title 46 of the U.S. Code.

Congress was concerned that, while MTSA does require general security measures for all covered maritime facilities, the specific security risks associated with high-risk chemical facilities are not adequately addressed in MTSA. Congress did recognize that significant security actions have been taken by such MTSA-regulated facilities; thus, special provisions were included in H.R. 2868 to address the coordination of CFATS and MTSA.

Regulation of Maritime Facilities

Section 2103(f)(1) of Title 1 of H.R. 2868 would give the DHS Secretary authorization to add coverage of maritime chemical facilities to the current CFATS regulations. The Secretary would be required to revise CFATS to provide for:

  • Requiring MTSA chemical facilities to submit information to the Secretary to allow for determination of whether the facility is a covered, high-risk chemical facility and determination of the appropriate tier ranking for such covered facilities (§2103(f)(1)(A));

  • Requiring covered facilities to update vulnerability assessments and facility security plans approved under MTSA regulations to “to ensure an equivalent level of security for substances of concern” (§2103(f)(1)(B));

  • Providing that the fulfillment of the personnel surety requirements set forth in the MTSA regulations will satisfy the §2115 requirements of HR 2868 for MTSA covered facilities (§2103(f)(1)(C)); and

  • Requiring covered facilities regulated under MTSA to “apply the information sharing and protection requirements in section 2110” (§2103(f)(1)(D)).

Coordination of Regulations

The House recognized that having two different security regulations affecting the same facility could cause some requirement conflicts and overlap. In order to avoid duplication and conflicts in security regulations, H.R. 2868 would require DHS's Office of Infrastructure Protection (the agency responsible for CFATS regulations) and the Coast Guard to “enter into a formal agreement detailing their respective roles and responsibilities” in the enforcement of the two regulations. See H.R. 2868 §2103(f)(1)(F)(i).

H.R. 2868 specifically requires that this agreement would specify which agency would be responsible for CFATS enforcement at MTSA-covered facilities. See H.R. 2868 §2103(f)(1)(F)(ii). This would include ensuring that vulnerability assessments and facility security plans are in compliance with CFATS standards as well as enforcing the information sharing and protection requirements of H.R. 2868 §2110.

Senate Action Required

H.R. 2868 has come farther than any other legislation in establishing comprehensive chemical security requirements, but it is not yet law. The Senate has yet to conduct any chemical facility security hearings in the current session; nor are there any companion bills that have been making their way through the legislative process. H.R. 2868 has been assigned to the Senate Committee on Homeland Security and Governmental Affairs for action.

There has not yet been any indication of how the Senate will deal with H.R. 2868's MTSA requirements. MTSA-covered facilities should continue to monitor the progress of this H.R. 2868 as it makes its way through the Senate.

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