Chemical Sector Security Summit Summary – MTSA and CFATS Initiatives

The 2010 Chemical Sector Security Summit included a panel discussion entitled “Multi-Agency Harmonization on Chemical and HazMat Security Regulations.” As part of that discussion, U.S. Coast Guard representative James Bull presented “Harmonization of MTSA and CFATS Regulations,” noting that the Coast Guard has been working with DHS’s Infrastructure Security Compliance Division (ISCD) since 2007, and has been closely involved with the Maritime Transportation Security Act (MTSA) and Chemical Facility Anti-Terrorism Standards (CFATS) Harmonization Working Group. The Coast Guard supports a coordinated DHS effort to ensure proper security for facilities and institutions handling hazardous materials, and the two agencies are working together toward a successful chemical facility regulatory regime.

The Coast Guard is conducting various site visits for comparative analysis and to distribute chemical facility lists to all Captain of the Port (COTP) zones. In this effort the Coast Guard hopes to expand CFATS awareness and exploit cross training opportunities. Although COTP zones must already adhere to MTSA and International Port Security Program (ISPS) obligations, the Coast Guard recognizes the need to engage with ISCD personnel and chemical inspectors.

US Coast Guard Requests Comments on Cargo Securing Methods

The U.S. Coast Guard (USCG) on Friday published in the Federal Register a Notice of request for comments on methods for securing cargo in transport vehicles and freight containers, in order to determine whether a standardized approval or certification process or improvised performance criteria for flexible strapping securing systems is needed. 75 Fed. Reg. 1070-71.

Currently, no certification or qualification standard exists under Federal law for blocking, bracing, or for the use of strapping systems for securing cargo. Under current federal regulation, cargo, including hazardous materials, transported above-ground (either in vehicles, rail, or on vessels) must be secured to prevent shifting of the cargo or damage to the container during transport. 49 CFR Part 176.76. However, the specific method by which the cargo is secured is unregulated. Oftentimes, flexible strapping is used even though it may not always properly secure cargo in transit. The USCG solicits comments while considering whether to implement a standardized certification or approval process for cargo securing systems.

The USCG is requesting comments on:

• The need for a new approval
  process or certification standard for cargo securing systems;
• Information on currently used standards for the approval and use of cargo securing systems;
• Methods for ensuring or verifying that securing systems adequately secure cargo without damaging the container or cargo;
• Existing test methods for securing systems;
• Materials used for securing cargo within the container (e.g. wood, plastic, bags, web, wire, chain, etc.);
• Allowances for movement of cargo within the container when securing systems are used; and
• Information on cargo securing systems that are currently being used to secure cargo in containers, both domestically and internationally.

Members of the public may submit written comments by March 9, 2010, in one of several ways:

• Online, through the Federal eRulemaking Portal;
• Via fax, at (202) 493-2251; or
• Via mail, to: Docket Management Facility (M–30), U.S. Department of Transportation, West Building Ground Floor, Room W12–140, 1200 New Jersey Avenue, SE., Washington, DC 20590–0001.

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.