Kirkpatrick & Lockhart LLP
Homeland Security Bulletin
SEPTEMBER 2003
Homeland Security Spurs New Regulatory Requirements for
Over 5000 Businesses with Facilities Near Ports, Rivers, Lakes,
Streams and Wetlands1
In an effort to improve homeland security, on
November 25, 2002, President Bush signed the
Maritime Transportation Security Act of 2002
(“MTSA”). Pub. L. 107-295 (November 25, 2002).
The purpose of MTSA is to provide for efficient,
coordinated, and effective action to deter and
minimize damage associated with marine
transportation security incidents2 —terrorist attacks—
in the nation’s ports and waterways. See 46 U.S.C. §
70103(a)(2). The Coast Guard promulgated MTSA’s
implementing regulations through an interim final
rule on July 1, 2003. Implementation of National
Maritime Security Initiatives, 68 Fed. Reg. 39,240
(2003). 3
MTSA subjects owners and operators of certain
facilities and vessels to an additional layer of
regulations, additional inspections, and possible
penalties. MTSA requires owners and operators of
certain facilities to, among other things, perform
security assessments, implement or amend security
plans, and conduct regular training and drills at the
facility. Further, facilities may be subject to a number
of unknown area-specific requirements under this new
law. This Bulletin provides a brief overview of the core
requirements of MTSA and its regulations.
The reach of MTSA appears broad, reaching any
facility that is near a “water” of the United States,
regardless of its relationship to ships and other vessels.
Although the security requirements are by regulation
limited to facilities that interface with vessels, the area
maritime security plan may impose obligations with a
broader effect.
BACKGROUND
In December 2002, a month following the enactment of
MTSA, the International Maritime Organization
(“IMO”), which includes the United States, adopted new
security amendments to the Convention for the Safety of
Life at Sea (“SOLAS”) and a new International Ship and
Port Facility Security (“ISPS”) Code. See 67 Fed. Reg.
79,742 (2002). The requirements of MTSA parallel the
1
This is the fourth in a series of articles discussing new federal environmental regulatory requirements arising in connection with Homeland
Security. Background information can be found in the Homeland Security page of kl.com
2
A “transportation security incident” is a “security incident resulting in a significant loss of life, environmental damage, transportation system
disruption, or economic disruption in a particular area.” 46 U.S.C. § 70101(6).
3
MTSA required the Coast Guard to issue an interim final rule as a temporary implementing regulation and expressly waived the requirements
of the Administrative Procedure Act (“APA”). See 46 U.S.C. § 70117(d). The Coast Guard plans on issuing the final rule in on or about
October 25, 2003. MTSA mandates that the final rule be issued within one year of its passage. Regardless of congressional limits on APA
review, the rules are subject to challenge to the extent they exceed the statutory authority granted the agency. Leedom v. Kyne, 358 U.S. 184
(1953); Aid Ass’n for Lutherans v. United States Postal Service, 321 F.3d 1166 (D.C. Cir. 2003).
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Homeland Security Bulletin
security requirements set forth in the SOLAS
amendments and the ISPS Code, but MTSA goes one
step further—it applies to domestic vessels and
facilities. Id.
public or private entity, including any contiguous or
adjoining property under common ownership or
operation.” 68 Fed. Reg. at 39,280 (to be codified at
33 C.F.R. § 101.105).
The Coast Guard, which is now part of the
Department of Homeland Security, is responsible
for implementing and enforcing MTSA. On
December 30, 2002, the Coast Guard issued a
notice in the Federal Register seeking comments in
connection with its effort to establish requirements
for security assessments, plans, and specific
security measures for ports, vessels, and facilities
as required by MTSA. See 67 Fed. Reg. 79,742.
Following that comment period, on July 1, 2003,
the Department of Homeland Security adopted an
interim final rule, which became effective
immediately. See 68 Fed. Reg. 39,240.
With this definition, it appears that the Coast Guard
is seeking to interpret MTSA expansively, just as
other agencies have attempted to do when defining
“waters of the United States” under legislation such
as the Clean Water Act.4 This application also is
consistent with the Coast Guard’s expanded
jurisdiction under the Ports and Waterways Safety
Act. See 33 U.S.C. § 1221 et seq. (where Congress
defined “marine environment” as “navigable
waters.”). Accordingly, it appears that the Coast
Guard is asserting jurisdiction over any facility
adjacent to any body of water that affects
interstate commerce or body of water that is
hydrologically connected to water that affects
interstate commerce. This would include the Great
Lakes and many rivers within the United States. A
recent guidance document issued by the Coast Guard
is consistent with this broad approach:
MTSA’S BROAD REACH
Unlike the SOLAS amendments and the ISPS Code,
which apply only to port or waterfront facilities,
MTSA applies to all “facilities.” See 46 U.S.C. §
70101 et seq.
Congress defines “facility” as “any structure or
facility of any kind located in, on, under or adjacent
to any waters subject to the jurisdiction of the United
States.” 46 U.S.C. § 70101(2) (emphasis added).
Notably, this definition does not limit application to
ports, wharves, docks, piers, and the like. Within the
interim final rule, the Coast Guard attempted to
clarify the definition by stating that facilities include
those that are “used, operated, or maintained by a
4
[Congress] indicates the clear intent that the Coast
Guard maritime security regulations should be
aligned with our broader authority under the Ports
and Waterways Security Act (33 U.S.C. § 1221 et
seq.) related to any public or commercial
structure located on or adjacent to the marine
environment, rather than our traditional approach
of focusing on installations and terminals that
have accommodations for vessels.
The United States has asserted Clean Water Act jurisdiction over isolated wetlands and other areas not apparently connected to
interstate waters, such as rivers. This extensive jurisdictional reach was recently limited by the United States in Solid Waste Agency of
Northern Cook County v. U.S. Army Corps of Engineers, 531 U.S. 159 (2001).
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KIRKPATRICK & LOCKHART LLP HOMELAND SECURITY BULLETIN
See Navigation and Vessel Inspection Circular
(“NVIC”) entitled “Recommended Security
Guidelines for Facilities,” NVIC No. 11-02
(Jan. 13, 2002) at p. 2 (www.uscg.mil/hq/g-m/nvic/
11-02.pdf).
APPLICABILITY
The Department of Homeland Security has estimated
that MTSA’s facility security requirements will
affect the method by which over 5,000 facilities
conduct business in the United States. See U.S.
Department of Homeland Security Press Secretary
Fact Sheet (July 2003). Under the interim final rule,
and effective immediately, the Facility Security
requirements apply to:
1. Facilities that interface with vessels and that
handle: (i) Class 1 (explosive) materials or other
dangerous cargoes regulated under 33 C.F.R. §
126; (ii) liquefied natural gas and liquefied
hazardous gas regulated under 33 C.F.R. § 127;
and (iii) oil and hazardous materials in bulk
regulated under 33 C.F.R. § 154; 5
2. Facilities that receive vessels that are certified to
carry more than 150 passengers;
3. Facilities that receive vessels subject to SOLAS,
or certain commercial vessels subject to 46 C.F.R.
§ 90 (cargo and miscellaneous vessels), that are
greater than 100 tons on international voyages,
including vessels solely navigating the Great
Lakes; or
4. Fleeting facilities that receive barges carrying, in
bulk, cargoes regulated by 46 C.F.R. § 30 (tank
vessels) and 46 C.F.R. § 150 (certain bulk
5
dangerous cargoes), or Certain Dangerous
Cargoes as defined by 33 C.F.R. § 160.230
(certain explosive, oxidizing, radioactive, or
hazardous materials).
See 33 C.F.R. §105.105. As discussed below, these
regulated facilities must prepare Facility Security
Plans (“FSPs”) and submit the plans to the Coast
Guard for review and approval.
The Facility Security regulations do not apply to:
1. Certain facilities that are owned and operated by
the United States;
2. Any oil and natural gas production, exploration,
or development facility regulated by 33 C.F.R. §
126 or 154 if the facility is engaged solely in the
exploration, development, or production of oil or
natural gas and if it does not meet or exceed the
following operating conditions: (i) hosts more
than 150 persons for 12 hours or more in each 24hour period continuously for 30 days or more; (ii)
produces greater than 100,000 barrels of oil per
day; or (iii) produces greater than 200 million
cubic feet of natural gas per day;
3. Any facility that supports the production,
exploration or development of oil and natural gas
regulated by 33 C.F.R. § 126 or 154 if the facility
is engaged solely in the exploration, development,
or production of oil or natural gas and (i) the
facility transports or stores quantities of
hazardous materials that do not meet or exceed
those specified in 49 C.F.R. § 172.800(b)(1)-(6)
or (ii) the facility stores less than 42,000 gallons
of cargo regulated by 33 C.F.R. § 154;
This is a clear deviation from the Coast Guard’s plans several months ago when it was considering a much more broad implementation
of its regulatory powers and application of MTSA regulatory requirements. See 67 Fed. Reg. 79742 (2002) and NVIC No. 11-02,
supra, at p. 2.
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Homeland Security Bulletin
4. Mobile facilities regulated by 33 C.F.R. § 154; or
5. Isolated facilities that receive materials regulated
by 33 C.F.R. § 126 or 154 by vessel due to lack
of road access to the facility and do not distribute
the material through secondary marine transfers.
See 33 C.F.R. §105.105.
“Non-regulated” facilities – i.e., facilities not
specifically subject to the Facility Security
regulations – are not exempt from MTSA’s reach.
Non-regulated facilities must comply with Area
Maritime Security requirements, as well as the
general provisions of the MTSA regulations. See id.
Further, as discussed below, a non-regulated facility
may be subjected to requirements outlined in the
Area Maritime Security Plan if the Area Maritime
Security Committee identifies the facility as a “risk”
and the Captain of the Port (“COTP”) issues an
order to take certain security actions to ensure port
security. Area Maritime Security, 68 Fed. Reg.
39,284, 39,291 (2003) (to be codified at 33 C.F.R. §
103.310).6
MTSA REQUIREMENTS
MTSA sets forth numerous requirements of owners
and operators of facilities. To provide some context
to the new facility security requirements, we will
first provide a brief review of the national and area
maritime security requirements.
National Maritime Security
The Coast Guard is required to develop a National
Maritime Transportation Security Plan (“National
Plan”) for deterring and responding to a
transportation security incident. The plan will
identify areas that will be covered by each COTP
acting as the Federal Maritime Security Coordinator
for each area. Notably, the National Plan must
include “a system of surveillance and notice
designed to safeguard against as well as ensure the
earliest possible notice of a transportation security
incident and imminent threats of such a security
incident to the appropriate State and Federal
agencies.” 46 U.S.C. § 70103(a)(2)(E).7
Additionally, the National Plan will identify areas
for which Area Maritime Security Plans must be
prepared. See 46 U.S.C. § 70103(a)(2)(G).
The Coast Guard has declined to publish rules in
connection with the National Plan at this time,
claiming that it is not necessary to implement the
facility security rule requirements. See 68 Fed. Reg.
39,240, 39,270 (2003).
Area Maritime Security
Area Plan
The COTP of each area assumes ultimate
responsibility for creating and implementing the
Area Maritime Transportation Security Plan (“Area
Plan”) within his or her designated area for each of
the 361 ports in the United States. See 33 C.F.R. §
6
The general and area maritime security provisions do not define “risk”; although, parenthetically, the Coast Guard indicates that
the Area Maritime Security Committee should focus on “threats, vulnerabilities, and consequences” when developing an Area
Security Plan. 33 C.F.R. §103.310(a)(2). The preamble to the general provisions defines “threat” as “a measure of the likelihood
of an attack,” “vulnerability” as “the conditional probability of success given that a threat scenario occurs,” and “consequence”
as “the estimation of adverse effect from the target/attack scenario.” 68 Fed. Reg. 39,244 (2003).
7
To the extent information collected by the Coast Guard implicates other statutes, there appears to be nothing to preclude the
Coast Guard from sharing such information with agencies charged with administering these other statutes.
4
KIRKPATRICK & LOCKHART LLP HOMELAND SECURITY BULLETIN
103.300; see also U.S. Department of Homeland
Security Press Secretary Fact Sheet (July 2003).
Area Plans must describe the area and infrastructure
covered by the Area Plan, and how it meshes with
other Area Plans, and vessel and facility plans. See
46 U.S.C. § 70103(b)(2). The Area Plan must be
adequate to deter a transportation security incident in
or near the area to the maximum extent practicable,
and be updated every 5 years. See id.
The AMS Plan is primarily a communication and
coordination document that includes:
1. Details of operational and physical measures that
must be in place at all MARSEC8 levels;
2. Communications procedures;
3. Measures to ensure the security of non-regulated
vessels, facilities, and operations;
4. Periodic review, audit and updating procedures;
5. Measures to ensure the security of AMS Plan
information; and
performed by the AMS Committee or its designee.
See 33 C.F.R. §§ 103.300–103.400.
Responsibilities of the AMS Committee include:
1. Identifying critical port infrastructure and
operations;
2. Identifying risks;
3. Determining mitigation strategies and
implementation methods;
4. Developing and describing the process to
continually evaluate overall port security; and
5. Advising and assisting the COTP in developing
the Area Plan.
See 33 C.F.R. § 103.310(a).
During preparation of the AMS Assessment, the
AMS Committee must consider any areas that “may,
if damaged, pose a risk to people, infrastructure or
operations within the port,” including:
6. Procedures for reporting security incidents.
1. Physical security of the infrastructure and
operations at the port;
See 33 C.F.R. § 103.505.
2. Structures considered critical for the continued
operation of the port;
Area Maritime Security Committee
and Assessments
The COTP works closely with the local Area
Maritime Security (“AMS”) Committee9 to prepare
the Area Plan. The first step in developing an AMS
Plan involves an AMS Assessment, which is
3. Existing security systems and equipment
available to protect maritime personnel;
4. Procedural policies;
8
The Coast Guard will communicate heightened levels of alert using MARSEC levels 1, 2, and 3 that align with the now all-toofamiliar graduated color-coded threat condition levels defined by the Homeland Security Advisory System (“HSAS”). MARSEC
is the maritime sector’s tool for communicating risk and in most cases will be linked to the HSAS. See 68 Fed. Reg. 39,240
(2003).
9
Each AMS Committee must have at least 7 members, each having at least 5 years of experience related to port or maritime
security operations. See 33 C.F.R. §103.305. Members may be selected from Federal, State, or local government and
stakeholders. See id.
SEPTEMBER 2003
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5. Radio and telecommunication systems, including
computer systems and networks;
6. Relevant transportation infrastructure;
7. Utilities; and
8. Security resources and capabilities.
See 33 C.F.R. § 103.405(b).
AMS Assessments may be performed by a third
party approved by the AMS Committee. See 33
C.F.R. § 103.400(b). The information gathered
during the AMS Assessment will be used by the
COTP to develop the AMS Plan. See 33 C.F.R. §
103.500(a).
The AMS Committee must prepare a written report of
its findings upon completion of the Assessment. The
report must detail (1) how the AMS Assessment was
conducted, (2) all vulnerabilities and consequences
found during the AMS Assessment, and 3) riskreducing strategies that could be used to ensure
continued operation at an acceptable risk level. See
33 C.F.R. § 103.400(c).
Exercises and Recordkeeping
The COTP and AMS Committee will conduct
periodic exercises to test the effectiveness of the
Area Plan. See 33 C.F.R. § 103.515. Exercise
documentation will be kept for 2 years. All records
relating to the AMS Assessment or Area Plan will be
kept for 5 years. See 33 C.F.R. § 103.520.
Penalties
No specific civil and criminal penalties are identified
in the interim rule in connection with noncompliance with the AMS Plan, although the Coast
Guard may have the authority to order the
performance of a specific action required by an AMS
Plan to ensure port, harbor and coastal facility
security. See generally the Magnuson Act, 50 U.S.C.
§ 191 et seq.; the Ports and Waterways Safety Act,
33 U.S.C. § 1221 et seq.10 Should the Coast Guard
attempt to use the Ports and Waterways Safety Act
for enforcement, violations may result in civil
penalties of up to $25,000 per violation and criminal
penalties. See 33 U.S.C. § 1232. In light of this
possibility, it would behoove non-regulated facilities,
such as port stakeholders, to participate actively in
AMS Committee activities.
Facility Security
Facility Security Plan
Before December 30, 2003, owners or operators of
regulated facilities must complete and submit FSPs
to the Coast Guard for review and approval. See
Facility Security, 68 Fed. Reg. 39,315, 39,323
(2003) (to be codified at 33 C.F.R. § 105.115). The
FSP is the “plan developed to ensure the application
of security measures designed to protect the facility
and its servicing vessels or those vessels interfacing
with the facility, their cargoes, and persons on board
at the respective MARSEC levels.” 33 C.F.R. §
101.105.
10 Port and Waterways Safety Act regulations state that the Coast Guard, to prevent damage or destruction of “any bridge or other
structure on or in the navigable waters of the United States, or any land structure or shore area immediately adjacent to such waters, and
to protect the navigable waters and the resources therein from harm resulting from vessel or structural damage, destruction, or loss,”
may “[d]irect the handling, loading, unloading, storage, and movement (including the emergency removal, control and disposition) of
explosives or other dangerous articles or substances, including oil or hazardous material as those terms are defined in 46 U.S.C. 2101
on any structure or shore area immediately adjacent to those waters . . . .” 33 C.F.R. § 160.109.
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KIRKPATRICK & LOCKHART LLP HOMELAND SECURITY BULLETIN
FSPs must be consistent with the requirements of the
National and Area Maritime Transportation Security
Plans. See 46 U.S.C. § 70103(c)(3)(A). FSPs may be
submitted and approved to cover more than one
facility where “they share similarities in design and
operations,” and if authorized by the COTP. 33 C.F.R.
§ 105.410. FSPs should align security measures with
a national system of threat or MARSEC levels. 33
C.F.R. § 101.200. Generally, FSPs must also:
1. Identify the qualified individuals charged with the
responsibility of implementing the FSP;
2. Include provisions for (i) establishing and
maintaining physical security, passenger cargo
security, and personnel security, (ii) establishing
and controlling access to secure areas of the
vessel facility, (iii) procedural security policies,
and (iv) communications and other systems;
3. Identify, and ensure by other means approved by
the Coast Guard, the availability of security
measures necessary to deter, to the maximum
extent practicable, a transportation security
incident or a substantial threat of such a security
incident;
4. Describe training, periodic unannounced drills, and
security actions to be effectuated under the FSP;
5. Be resubmitted for approval for each change to
the vessel or facility that may “substantially”
affect the security of the vessel or facility; and
6. Be updated at least every 5 years.
46 U.S.C. § 70103(c)(3).
Approved FSPs are valid for 5 years from the date of
approval. See id. FSPs must be amended: (1) upon
request by the COTP, (2) when changes in operations
or procedures at the facility necessitate an
SEPTEMBER 2003
amendment, or (3) upon a change in owner or
operator. See 33 C.F.R. § 105.415.
FSPs must be audited annually by the anniversary of
approval, and when there has been a change in
ownership or operations or modifications to the
facility involving emergency response procedures,
physical structure changes, security measures or
operations. See id. Audits completed as a result of
modifications to the facility need only be limited to
affected sections. See id. If an audit results in a
conclusion that an amendment is necessary, the FSO
must submit to the COTP appropriate amendments for
review and approval with a certification that the
amendments satisfy the facility security rules. See id.
Facility Security Officer (“FSO”)
One of the first steps owners and operators must do
to achieve compliance with MTSA is to designate an
FSO. See 33 C.F.R. § 105.200. The FSO is the
“person designated as responsible for the
development, implementation, revision and
maintenance of the facility security plan and for
liaison with the COTP” and other security officers.
33 C.F.R. § 101.105. Facility owner or operators
must designate, in writing, an FSO for each facility
to assume compliance responsibility. See 33 C.F.R.
§ 105.200.
FSOs must have general knowledge, through
training or equivalent job experience, on a range of
issues such as security administration, relevant
international laws, domestic regulations, current
security threats and patterns, risk assessment
methodology, inspections, control procedures and
conducting audits. See 33 C.F.R. §105.205. The
FSO is responsible for implementing the FSP,
periodically auditing and updating the FSA and FSP,
ensuring that adequate training is provided to facility
personnel, and ensuring that the facility is operating
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Homeland Security Bulletin
in accordance with the FSP and in continuous
compliance with MTSA and its regulations. See id.
The FSO may perform other duties within the
organization, provided he or she is able to perform the
function of an FSO. See 33 C.F.R. § 105.205. FSOs
may also serve more than one facility. However, the
facilities must be in the same COTP zone and not
more than 50 miles apart. See id.
All other employees responsible for security duties
must possess the requisite knowledge, through
training or equivalent job experience, as appropriate,
to implement the FSP. See 33 C.F.R. § 105.210.
Facility Security Assessment
Production of an FSP begins with a Facility Security
Assessment (“FSA”). The FSA is a written
document that is based on the collection of
background information, the completion of an onsite survey and analysis of that information. See 33
C.F.R. § 105.300. Owners and operators of facilities
are required to complete FSAs, but third-party
assistance is acceptable with the FSO’s blessing. See
id. A common FSA may be conducted for more than
one similar facility provided the FSA reflects any
facility-specific requirements that are unique. See id.
An “on-scene” survey must be conducted during the
FSA process. See id. The FSA must consider and
evaluate all “vulnerabilities” of the facility, such as
access, existing facility procedures and policies,
structural integrity of the facility, deficiencies,
possible security threats, likely consequences of an
attack, and access-restricted areas based on each
MARSEC level. See id. A written report must be
prepared upon completion of an FSA and must be
made part of the written FSP.11 See id.
Facility Personnel Training
All non-security employees or contractors—
including part-time, full-time, temporary, or
permanent—must have knowledge, through training
or equivalent job experience, of the relevant
provisions of the facility’s FSP, MARSEC level
requirements, recognition and detection of
dangerous substances and devices, recognition of
characteristics and behavioral patterns of persons
who are likely to threaten security, and techniques
used to circumvent security measures. See 33 C.F.R.
§ 105.215.
Exercises and Drills
Regulated facilities are required to conduct training
exercises at least once per calendar year, with no
more than 18 months between exercises. See 33
C.F.R. § 105.220. Exercises are a full test of the
security program and must involve “substantial and
active” participation by FSOs. Id. Exercises may
include government authorities and vessels, and may
be facility-specific, or part of a cooperative exercise
program with applicable FSPs. See id. Drills, which
are similar in scope to exercises, must be conducted
at least every three months and test individual
elements of the FSP. See id.
11 MTSA requires that documents related to security, especially security assessments and plans, be kept in a manner that is
protected from unauthorized access or disclosure. See 46 U.S.C. § 70103(d). The Coast Guard has designated security-related
material in this interim rule as Sensitive Security Information (“SSI”) in accordance with 49 C.F.R. § 1520. See 68 Fed. Reg. at
392,81. Information designated as SSI is generally exempt under the Freedom of Information Act. See 49 C.F.R. § 1520.
Although the statute does not expressly preempt State disclosure laws in direct conflict with 49 C.F.R. § 1520, the Coast Guard
believes that any such laws are preempted by 49 C.F.R. § 1520. See 68 Fed. Reg. at 39,256.
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KIRKPATRICK & LOCKHART LLP HOMELAND SECURITY BULLETIN
Waivers, Equivalents, and
Alternative Security Programs
Facility owners and operators may request the Coast
Guard, in writing, for a “waiver” of any facility
security requirement that is considered unnecessary
“in light of the nature or operating conditions of the
facility, prior to operating.” 33 C.F.R. § 105.130. In
addition, when seeking approval of its FSP, facility
owners and operators may seek approval of an
“equivalent” security measure to substitute for any
specific facility security requirement. See 33 C.F.R.
§ 105.135. Finally, an approved Alternative Security
Program (“ASP”) may be used if the ASP is
appropriate for the facility, implemented in its
entirety, and a Facility Vulnerability and Security
Measures Summary form is completed and
submitted to the Coast Guard. See 33 C.F.R. §
105.140. If an ASP is used, it “must be
comprehensive and based on a security assessment
to demonstrate that it meets the intent of [the rule].”
68 Fed. Reg. 39,315, 39,317 (2003). The denial of a
waiver is likely to constitute final agency action that
is reviewable in federal district court, once all
administrative appeals through the Coast Guard are
exhausted.
The Coast Guard will accept self-assessments or
demonstration using any acceptable risk
management tool to evaluate waivers, equivalents,
and ASPs to show that the alternative is at least as
effective as the rule. See id.
that are required to prepare and submit FSPs are
prohibited from operating after one year from
issuance of the interim final regulations unless: (1)
its FSP has been approved by the Coast Guard, and
(2) the facility is operating in compliance with its
FSP. 46 U.S.C. § 70103(c)(5). Plans that are
deemed insufficient will be required to be amended.
By July 1, 2004, facility owner and operators must
produce one of the following to the Coast Guard
upon request:
1. The approved FSP, including any revisions or
amendments and a letter from the COTP
approving the FSP dated within the past 5 years;
2. The FSP submitted for approval and an
acknowledgement letter from the COTP stating
that the Coast Guard is currently reviewing the
FSP for approval, and that the facility may
continue to operate so long as the facility remains
in compliance with the submitted FSP; or
3. A copy of a Coast Guard-approved ASP and a
letter signed by the facility owner or operator
certifying that the ASP is in full compliance with
its ASP.
See 33 C.F.R. § 105.120.
In addition to the above, the facility must keep
records in connection with the following for 2 years:
1. Training;
Compliance and Recordkeeping
As mentioned, owners or operators of regulated
facilities must complete and submit their FSPs to the
Coast Guard for review and approval on or before
December 30, 2003. See 33 C.F.R. § 105.115. By
July 1, 2004, each facility owner or operator must be
operating in compliance with MTSA’s implementing
regulations. See id. According to MTSA, facilities
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2. Drills and exercises;
3. Incidents and breaches of security;
4. Changes in MARSEC levels;
5. Maintenance, calibration, and testing of security
equipment;
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Homeland Security Bulletin
6. Security threats;
7. Declarations of Security12 ; and
8. The annual audit of the FSP.
See 33 C.F.R. § 105.225. The rule does not specify
format and storage requirements for such records.
Penalties
Facilities that do not comply with MTSA may be
subject to criminal penalties and civil penalties up to
$25,000 per violation. Civil and criminal penalties
for violations of control and compliance measures,
including COTP orders and security zones, may be
punishable under the Ports and Waterways Safety
Act and the Magnuson Act. See 33 C.F.R. §
101.415(a).13 Civil penalties of up to $25,000 may
also be assessed for non-compliance with any other
requirement of MTSA, including those contained in
MARSEC Directives. See 33 C.F.R. § 101.415(b).14
Finally, non-compliance may also result in :
1. Restrictions on facility access;
2. Conditions on facility operations;
Compliance Inspections
The Coast Guard will verify facility compliance
through established inspection procedures already
associated with: (1) Class 1 (explosive) materials or
other dangerous cargoes regulated under 33 C.F.R. §
126, (2) liquefied natural gas and liquefied
hazardous gas regulated under 33 C.F.R. § 127, and
3) oil and hazardous materials in bulk regulated
under 33 C.F.R. § 154. See 68 Fed. Reg. 39315,
39316 (2003).
Right to Appeal
Any facility owner or operator directly affected by a
decision or action taken by the Coast Guard pursuant
to MTSA may appeal. See 33 C.F.R. § 101.420.
Decisions made by the COTP may be appealed to the
District Commander. See id. Decisions made by the
District Commander or the Commanding Officer of
the Marine Safety Center may be appealed to the
Commandant (G-MP). See id. Decisions made by
the Commandant (G-MP) are considered final
agency action.15 See id. Final agency action by the
Commandant is subject to review by a U.S. district
court.
3. Suspension of facility operations;
4. Lesser administrative or corrective measures; or
5. Suspension or revocation of security plan
approval.
In light of the apparent broad scope of this new law,
and the additional regulatory requirements and
potential penalties associated with non-compliance,
it is advisable for companies that are “in, on, under
or adjacent to any waters subject to the jurisdiction
See 33 C.F.R. § 101.410(c).
12 A Declaration of Security (“DoS”) is an agreement executed between a responsible vessel and FSO that provides a means for
ensuring that all shared security concerns are properly addressed and security will remain in place during the time the vessel is
moored to the facility. See 33 C.F.R. § 101.105. Only certain passenger vessels and vessels carrying certain dangerous cargoes,
in bulk, will complete a DoS for every evolution regardless of the MARSEC level. See 33 C.F.R. § 105.245. At MARSEC
Levels 2 and 3, all vessels and facilities would need to complete a DoS. See id.
13 Criminal penalties require knowledge that one is violating the order, etc. See 33 U.S.C. § 1232(b).
14 MTSA is silent on whether civil penalty assessments require knowledge of the violation. See 46 U.S.C. § 70117. It is likely that
the Coast Guard will assert that strict liability applies.
15 Arguably, a third party may challenge the issuance of a waiver, equivalent or approval of an alternative security plan as a final
agency action, if it has standing to do so.
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KIRKPATRICK & LOCKHART LLP HOMELAND SECURITY BULLETIN
of the United States” to review the forthcoming rule
and, if necessary, take the appropriate steps to
achieve full compliance with its requirements.
K&L’s Homeland Security Practice includes
attorneys with the experience and resources to assist
clients in understanding and complying with this
developing body of regulatory requirements. We
presently represent a number of clients in the
chemical, academic, water utilities, research
institutions, and oil and natural gas transportation
industries and are sensitive to the potential impacts
of these new requirements on our clients’ activities.
We can assist clients in commenting on proposed
rules, counsel them on compliance with new
regulations, and represent them before the agencies
and in court when necessary to ensure that their
views are heard or their interests are defended. For
more information, please visit the Homeland
Security Practice, Environmental and Natural
Resources, and White Collar Criminal Defense areas
on our website at www.kl.com.
BARRY M. HARTMAN
202.778.9338
bhartman@kl.com
CRAIG P. WILSON
717.231.4509
cwilson@kl.com
JOHN A. ORLOWSKI
973.848.4037
jorlowski@kl.com
For further information regarding this Homeland Security Bulletin,
or our law firm’s Homeland Security practice, please contact:
Boston
Jeffrey S. King
617.261.3179
jking@kl.com
Dallas
Julie E. Lennon
214.939.4920
jlennon@kl.com
Harrisburg
Craig P. Wilson
717.231.4509
cwilson@kl.com
Los Angeles
David P. Schack
310.552.5061
dschack@kl.com
Miami
Daniel A. Casey
305.539.3324
dcasey@kl.com
Troy J. Rillo
305.539.3355
trillo@kl.com
Newark
William H. Hyatt
973.848.4045
whyatt@kl.com
Brian S. Montag
973.848.4044
bmontag@kl.com
New York
Eva M. Ciko
212.536.3905
eciko@kl.com
Pittsburgh
Thomas J. Smith
412.355.6758
tsmith@kl.com
Mark A. Rush
412.355.8333
mrush@kl.com
San Francisco Robert J. Sherry
415.249.1032
rsherry@kl.com
Washington
Barry M. Hartman
202.778.9338
bhartman@kl.com
Dick Thornburgh
202.778.9080
dthornburgh@kl.com
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DALLAS
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HARRISBURG
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LOS ANGELES
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MIAMI
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NEWARK
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WASHINGTON
.........................................................................................................................................................
This bulletin is for informational purposes and does not contain or convey legal advice. The information herein
should not be used or relied upon in regard to any particular facts or circumstances without first consulting a lawyer.
SEPTEMBER 2003
LLP. ALL RIGHTS RESERVED.
© 2003 KIRKPATRICK & LOCKHARTKirkpatrick
& Lockhart LLP
Homeland Security Bulletin
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KIRKPATRICK & LOCKHART LLP HOMELAND SECURITY BULLETIN