Speeches/Testimony

Comments by the National Petrochemical & Refiners Association
on U.S. Department of Homeland Security
Coast Guard Notice on Facility Security
Docket USCG-2003-14732
July 31, 2003

The National Petrochemical & Refiners Association (NPRA) appreciates the opportunity to comment on the Department of Homeland Security/Coast Guard Temporary Interim Rule on Facility Security, [USCG-2003-14732] RIN 1625-AA43, which adds part 105 to subchapter H of chapter I of title 33 of the Code of Federal Regulations.

NPRA's member companies include virtually all petroleum refiners and petrochemical manufacturers in the United States. The Association and its members are absolutely committed to keeping all of our facilities as secure as possible from threats of violence or terrorism. Contrary to what a few press articles would have us believe, industry is not standing idly by, waiting for either Congress or the Executive Department to act before we conduct our own comprehensive security vulnerability assessments and implement strong facility security measures. Refiners and petrochemical manufacturers are heavily engaged - and were even before September 11 - in maintaining and enhancing facility security.

We especially appreciate the excellent working relationship so many of our members enjoy in working with the U.S. Coast Guard. NPRA and its members strongly believe that federal security efforts must be conducted by experienced organizations such as yours, and not delegated to branches of government which lack the law enforcement and intelligence capabilities, and security resources at your disposal.

In this regard, we would urge the federal government to recognize fully the need for consistency in the development and implementation of security related rules and regulations. This is important, of course, as the Department of Homeland Security interacts with other federal departments and agencies. But it is just as critical within DHS itself. Sometimes our members get the impression that there may be those who forget that the Coast Guard and the Transportation Security Administration are both components of the same Department, and that there should not be any inconsistency in the security programs and policies within DHS. We refer here specifically to unofficial reports that TSA may be developing security assessment requirements of its own. We again urge DHS to make sure any such efforts are coordinated with the Coast Guard and the DHS Information Analysis & Infrastructure Protection Directorate.

We would hope to see, as well, consistency in the application and enforcement of the MTSA rule among the several Captain Of The Port zones.

With respect to the Temporary Interim Rule generally, the regulations are basically very good and should contribute substantially to national facility security.

Unfortunately, the Rule does still leave questions as to applicability. As the document is now written, a facility may still be left to wonder as to which federal agency or department might have jurisdiction over it when it comes to facility security.

For example, 33 CFR Section 105.105 ("Applicability") in paragraph (a) says "The requirements in this part apply to the owner or operator of any U.S. [f]acility subject to 33 CFR [part] 154; and Section 154.100 ("Applicability"), paragraph (a), says "This part applies to each facility that is capable of transferring oil or hazardous materials, in bulk, to or from a vessel, where the vessel has a total capacity [of 250 barrels or more]." Thus, it would appear that, even if a refinery is adjacent to a body of water subject to the jurisdiction of the United States, it might still not be subject to the rule if it is not capable of transferring oil to or from a vessel.

There needs to be further discussion of a physical delineation of jurisdiction to prevent conflicts with other regulatory agencies such as Department of Transportation's Research and Special Programs Administration. If the existing uncertainty of jurisdiction or regulatory demarcation remains in the final rule, the portion of facilities shore side of the 33 CFR 126,127, and 154 boundary are at risk of inconsistent security assessment or are potentially subject to overlapping or conflicting regulation by other federal agencies.

The last thing a company striving to enhance security needs is more confusion as a result of overlapping jurisdictions. A significant majority of NPRA's members would prefer to see a firm line of demarcation limiting Coast Guard authority to the dock.

There also should be a clear definition of the specific event or events we are trying to avoid or prevent. What is the Coast Guard's understanding of what it is we are trying to mitigate by these regulations? Is it economic impact? If so, to what level? Personal injuries? If so, how many? A closing of the port? For how long? For some of these events industry already has good mitigation strategies in place that might avoid the need to add additional security measures.

There is at least one specific action the Coast Guard might take to reduce uncertainty: Over the past several months, NPRA, the American Petroleum Institute, the Argonne National Laboratory, and representatives of the DHS Information Analysis & Infrastructure Protection Directorate, have developed a sophisticated and effective methodology for conducting facility security assessments. It is the product of many minds, and it has been successfully field tested in large and medium-sized facilities.

NPRA would like the Coast Guard to formally approve this security vulnerability assessment methodology as one that may be used by a refiner or petrochemical manufacturer in complying with the requirements for a Facility Security Assessment (33 CFR Part 105, Subpart C) and Facility Security Plan, §105.405(a)(17).

The rule at §101.120 provides for the Commandant's approval of Alternative Security Programs. The preamble to the rule (at page 39255 of the July 1, 2003, Federal Register, under the heading "Procedures for Accepting Industry Standards,") says that "an industry association or a company could submit these requests for consideration"; the rule itself, however, does not make provision for an association to make the submission.

Nevertheless, relying on the assurance of the Preamble, NPRA at the public hearing on July 23, 2003, formally submitted a copy of the "API/NPRA Security Vulnerability Assessment Methodology for the Petroleum and Petrochemical Industries" dated May 2003 for review and approval by the Commandant as one meeting the Facility Security Assessment requirements of §105.305 of the Temporary Interim Rule, and we ask that it be incorporated by reference as such when the rule is finalized.

With respect to Facility Security Assessments, NPRA urges the Coast Guard to delete §105.405(a)(17), i.e., the requirement that the Facility Security Assessment be included in the submission of the Facility Security Plan. We greatly appreciate the clear intent of the Coast Guard that information of this type will be protected from unauthorized access or disclosure. The information in the FSA, however, is of such a sensitive nature that, unless it is protected with a "Secret" designation, the risk of disclosure - and the damage that could result thereby - is simply too great. NPRA believes the submission of form CG-6025, "Facility Vulnerability and Security Measures Summary," as required in §105.405(a)(18) should be sufficient for the needs of the Captain Of The Port and would promote facility security. The COTP or his designee could review specifics of the FSA kept on file with the owner or operator at any time.

NPRA also asks the Coast Guard to take a closer look at the restrictions put on the Facility Security Officer (FSO). Section 105.205(a)(2) limits the responsibilities of the company-appointed FSO to facilities "in the same COTP zone," and says that the facilities for which the FSO has responsibility must be no more than 50 miles apart. Companies with multiple facilities should be able to exercise these management decisions by themselves, especially since subparagraph (3) allows the FSO to delegate security duties to other personnel, so long as he retains final responsibility for these duties.

And with regard to facility personnel, NPRA would ask you to reconsider paragraph (e) of §105.215, which would require all facility personnel, including contractors, whether part-time, temporary, or permanent, to know how to circumvent the facility's security measures. Surely this is a mistake in the rule.

Finally, with respect to §105.230(e)(1), "MARSEC Coordination and Implementation," a facility owner or operator should not be required to conduct waterborne patrol during MARSEC III; this is not the responsibility of a facility, but rather that of the Coast Guard or other law enforcement agencies working in conjunction with the Coast Guard. To require a private facility to patrol a public waterway is analogous to requiring a facility to have vehicles patrol the public streets near the facility's entrance. This is clearly a matter for authorized law enforcement agencies.

NPRA commends the Coast Guard for producing what is overall a very fine Temporary Interim Rule, and encourages it to make adjustments where warranted.