Coast Guard Maritime Commons Clarifies CDC and TWIC Reader Rule

Laurie Thomas 2015

04-03-2017 By Laurie Thomas, Maritime Security Outlook Contributor

There has been a lot of discussion about facilities who are not in Risk Group A but are concerned that they might be included because they “handle CDC” by truck or railcar away from the MTSA nexus. The TWIC reader final rule seems to indicate that these facilities will be included in the rule (p. 57681), although the rule also states that the facility may  “define its MTSA footprint in such a way as to exclude that area.” It is presumed that this would require a Facility Security Plan (FSP) amendment.

On March 31, 2017, on Coast Guard Maritime Commons, CG-FAC used the blog to push out important information to industry, clarifying the USCG stance on facilities that handle CDC. The blog states that facilities should look to an older Policy Advisory Council decision, 20-04, for guidance on who is and who is not subject to 33 CFR 105.295 and thus included in Risk Group A. I was using Chrome to access Maritime Commons and the link to Homeport was not successful. For other users who also have trouble linking to Homeport, the text of the PAC is included below in its entirety. Scenarios D and E refer directly to facilities who handle their CDC by modes other than maritime.

To get to this PAC on Homeport, go to http://homeport.uscg.mil  then MTSA>MTSA/ISPS Policy Advisory Council FAQs>20-04 Certain Dangerous Cargo Facilities.pdf

MTSA/ISPS POLICY ADVISORY COUNCIL
May 6, 2004
Issue/Discussion/Decision
Certain Dangerous Cargo Facilities
20-04
FINAL
Issue: What is a CDC facility?

Discussion: Certain Dangerous Cargoes (CDC’s) are defined in 33 CFR 160.204, and the
preamble to the Final Rule states that facilities that handle such CDC’s are considered CDC
Facilities. The Final Rule preamble also notes the Coast Guard disagrees “that 105.295 should only apply when CDC is actually present on a facility, because the measures required by the section must be taken in advance so that they can be implemented when CDC is present.” The Final Rule preamble does not define what the word handles means, and the purpose of this paper is to decide how to interpret this term.

Decision: In order for a facility to be classified as a CDC Facility, a vessel-to-facility
interface must occur, or be capable of occurring, and involve the transfer of CDC’s in bulk.
Facilities designated as CDC facilities would need to comply with the regulations contained in 33 CFR 105.295. A facility that is required to complete a Security Plan but that is not designated as a CDC Facility must develop security procedures for the safeguarding of the CDC while it is present on the facility. The following scenarios are examples of how this might be accomplished:

Scenario A: Facilities that receive vessels and engage in vessel-to-facility interfaces that
involves the transfer of bulk Certain Dangerous Cargoes from the vessels that they receive.

Scenario A Decision: Facilities would be designated as Certain Dangerous Cargo (CDC)
Facilities and would be required to comply with 33 CFR 105.295.

Scenario B: Facilities that receive vessels and engage in vessel-to-facility interfaces that
involves the transfer of packaged Certain Dangerous Cargoes from the vessels that they receive.

Scenario B Decision: Facilities would not be required to comply with 33 CFR 105.295. The
Facility Security Plan for these facilities must address the fact that they handle such cargoes and the provisions that the facilities have to secure such cargoes. Scenario C: Facilities that receive vessels that carry CDC’s in bulk but the transfer of CDC’s does not occur between the vessels and the facility.

Scenario C Decision: Facilities would not be required to comply with 33 CFR 105.295. Under 33 CFR 105. 245(b), prior to the arrival of a vessel to the facility, the Facility Security Officer and the Vessel Security Officer, or their designated representatives, would be required to coordinate security needs and agree upon the contents of a DoS. The vessel and facility representatives would then need to sign and implement this DoS. As part of the Security that the two agree upon, provisions should be implemented to safeguard the CDC onboard the vessel.

Scenario D: Facilities, already subject to 33 CFR Part 105, receiving Certain Dangerous
Cargoes from entities other than vessels, such as rail cars and tanker trucks.

Scenario D Decision: Facilities would not be required to comply with 33 CFR 105.295. The
Facility Security Plan for these facilities must address the fact that they handle such cargoes and the provisions that the facilities have to secure such cargoes. At a minimum, these facilities would need to designate the areas where CDC’s are present as restricted areas.

Scenario E: Facilities, already subject to 33 CFR Part 105, through which train cars travel
carrying CDC’s. These CDC’s are not received at the facility, but the train cars might be present for extended periods of time.

Scenario E Decision: Facilities would not be required to comply with 33 CFR 105.295. The
facility should be aware of the movement of such cargoes and have included this in their Facility Security Plans. At a minimum, the facility should incorporate the checking of railcars during security rounds on the facility.