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[Federal Register: October 22, 2003 (Volume 68, Number 204)]
[Rules and Regulations]
[Page 60447-60472]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr22oc03-11]
[[Page 60447]]
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Part II
Department of Homeland Security
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Coast Guard
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33 CFR Parts 2, 101, et al.
46 CFR Parts 2, 31, et al.
National Maritime Security Initiatives; Area Maritime Vessel, Facility,
and Outer Continental Shelf Security; Automatic Indentification System,
Vessel C
[[Page 60448]]
arriage Requirement; Final Rules
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DEPARTMENT OF HOMELAND SECURITY
Coast Guard
33 CFR Parts 2, 101 and 102
[USCG-2003-14792]
RIN 1625-AA69
Implementation of National Maritime Security Initiatives
AGENCY: Coast Guard, DHS.
ACTION: Final rule.
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SUMMARY: The Coast Guard has published a series of final rules in
today's Federal Register that adopt, with changes, the series of
temporary interim rules published July 1, 2003, which promulgate
maritime security requirements mandated by the Maritime Transportation
Security Act of 2002.
This final rule establishes the general regulations for maritime
security and provides the summary of the cost and benefit assessments
for the entire suite of final rules published today. The discussions
provided within each of the other final rules are limited to the
specific requirements they contain.
DATES: This final rule is effective November 21, 2003. On July 1, 2003,
the Director of the Federal Register approved the incorporation by
reference of certain publications listed in this final rule.
ADDRESSES: Comments and material received from the public, as well as
documents mentioned in this preamble as being available in the docket,
are part of docket USCG-2003-14792 and are available for inspection or
copying at the Docket Management Facility, U.S. Department of
Transportation, room PL-401, 400 Seventh Street SW., Washington, DC,
between 9 a.m. and 5 p.m., Monday through Friday, except Federal
holidays. You may also find this docket on the Internet at http://dms.dot.gov
.
You may inspect the material incorporated by reference at room
1409, U.S. Coast Guard Headquarters, 2100 Second Street SW.,
Washington, DC 20593-0001 between 8:30 a.m. and 3:30 p.m., Monday
through Friday, except Federal holidays. The telephone number is 202-
267-6277. Copies of the material are available as indicated in the
``Incorporation by Reference'' section of this preamble.
FOR FURTHER INFORMATION CONTACT: If you have questions on this final
rule, call Captain Kevin Dale (G-MPS), U.S. Coast Guard by telephone 202-267-6193 or by electronic mail at kdale@comdt.uscg.mil. If you have
questions on viewing the docket, call Andrea M. Jenkins, Program
Manager, Docket Operations, Department of Transportation, at telephone
202-366-0271.
SUPPLEMENTARY INFORMATION:
Regulatory Information
On July 1, 2003, we published a temporary interim rule with request
for comments and notice of public meeting titled ``Implementation of
National Maritime Security Initiatives'' in the Federal Register (68 FR
39240). This temporary interim rule was one of six temporary interim
rules published in the July 1, 2003, issue of the Federal Register,
each addressing maritime security. On July 16, 2003, we published a
document correcting typographical errors and omissions in that rule (68
FR 41914).
We received a total of 438 letters in response to the six temporary
interim rules by July 31, 2003. The majority of these letters contained
multiple comments, some of which applied to the docket to which the
letter was submitted, and some of which applied to a different docket.
For example, we received several letters in the docket for the
temporary interim rule titled ``Implementation of National Maritime
Security Initiatives'' that contained comments in that temporary
interim rule, plus comments on the ``Vessel Security'' temporary
interim rule. We have addressed individual comments in the preamble to
the appropriate final rule. Additionally, we had several commenters
submit the same comment to all six dockets. We counted these duplicate
submissions as only one letter, and we addressed each comment within
that letter in the preamble for the appropriate final rule. Because of
statutorily imposed time constraints for publishing these regulations,
we were unable to consider comments received after the period for
receipt of comments closed on July 31, 2003.
A public meeting was held in Washington, DC, on July 23, 2003, and
approximately 500 people attended. Comments from the public meeting are
also included in the ``Discussion of Comments and Changes'' section.
In order to focus on the changes made to the regulatory text since
the temporary interim rule was published, we have adopted the temporary
interim rule and set out, in this final rule, only the changes made to
the temporary interim rule. To view a copy of the complete regulatory
text with the changes shown in this final rule, see http://www.uscg.mil/hq/g-m/mp/index.htm
.
Background and Purpose
In the aftermath of September 11, 2001, the Commandant of the Coast
Guard reaffirmed the Coast Guard's Maritime Homeland Security mission
and its lead role-in coordination with the Department of Defense;
Federal, State, Indian Tribal, and local agencies; owners and operators
of vessels and marine facilities; and others with interests in our
nation's Marine Transportation System (MTS)--to detect, deter, disrupt,
and respond to attacks against U.S. territory, population, vessels,
facilities, and critical maritime infrastructure by terrorist
organizations.
In November 2001, the Commandant of the Coast Guard addressed the
International Maritime Organization (IMO) General Assembly, urging that
body to consider an international scheme for port and shipping
security. Recommendations and proposals for comprehensive security
requirements, including amendments to the International Convention for
Safety of Life at Sea, 1974, (SOLAS) and the new International Ship and
Port Facility Security Code (ISPS Code), were developed at a series of
intersessional maritime security work group meetings held at the
direction of the IMO's Maritime Safety Committee.
The Coast Guard submitted comprehensive security proposals in
January 2002 to the intersessional maritime security work group
meetings based on work we had been coordinating since October 2001.
Before each intersessional meeting, the Coast Guard held public
meetings and coordinated several outreach meetings with representatives
from major U.S. and foreign associations for shipping, labor, and
ports. We also discussed maritime security at each of our Federal
Advisory Committee meetings and held meetings with other Federal
agencies with security responsibilities.
On January 28-30, 2002, the Coast Guard held a public workshop in
Washington, DC, attended by more than 300 individuals, including
members of the public and private sectors, and representatives of the
national and international marine community (66 FR 65020, December 17,
2001; docket number USCG-2001-11138). Their comments indicated the need
for specific threat identification, analysis of threats, and methods
for developing performance standards to plan for response to maritime
threats. Additionally, the public comments stressed the importance of
uniformity in the application and enforcement of requirements and the
need to establish
[[Page 60449]]
threat levels with a means to communicate threats to the MTS.
At the Marine Safety Committee's 76th session and subsequent
discussions internationally, we considered and advanced U.S. proposals
for maritime security that took into account this public and agency
input. The Coast Guard considers both the SOLAS amendments and the ISPS
Code, as adopted by the IMO Diplomatic Conference in December 2002, to
reflect current industry, public, and agency concerns. The entry into
force date of both the ISPS Code and related SOLAS amendments is July
1, 2004, with the exception of the Automatic Identification System
(AIS). The AIS implementation date for vessels on international voyages
was accelerated to no later than December 31, 2004, depending on the
particular class of SOLAS vessel.
Domestically, the Coast Guard had existing regulations for the
security of large passenger vessels, found in 33 CFR parts 120 and 128.
The Coast Guard issued complementary guidance in the Navigation and
Vessel Inspection Circular (NVIC) 3-96, Change 1, Security for
Passenger Vessels and Passenger Terminals. Prior to development of
additional regulations, the Coast Guard, with input from the public,
assessed the current state of port and vessel security and their
vulnerabilities. To accomplish this, the Coast Guard conducted the
previously mentioned January 2002 public workshop to assess existing
MTS security standards and measures and to gather ideas on possible
improvements. Based on the comments received at the workshop, the Coast
Guard cancelled NVIC 3-96 (Security for Passenger Vessels and Passenger
Terminals) and issued a new NVIC 4-02 (Security for Passenger Vessels
and Passenger Terminals), which was developed in conjunction with the
International Council of Cruise Lines, that incorporated guidelines
consistent with international initiatives (the ISPS Code and SOLAS).
Additional NVICs were also published to further guide maritime security
efforts, including NVIC 9-02 (Guidelines for Port Security Committees,
and Port Security Plans Required for U.S. Ports), NVIC 10-02 (Security
Guidelines for Vessels), and NVIC 11-02 (Security Guidelines for
Facilities). The documents are available in the public docket (USCG-
2002-14069) for review at the locations under ADDRESSES.
Organization
We have kept the maritime security regulations segmented in six
separate final rules. For ease of reading and comprehension, the final
rules carry the same organization as the temporary interim rules. Five
of the final rules complete the new subchapter H, which was added by
the temporary interim rules, in chapter I of title 33 of the Code of
Federal Regulations (subchapter H). The final rule ``Automatic
Identification System; Vessel Carriage Requirement'' (USCG-2003-14757),
published elsewhere in today's Federal Register, finalizes the changes
made to parts 26, 161, 164, and 165 in Title 33 of the Code of Federal
Regulations regarding AIS. A brief description of each of the six final
rules follows:
1. Implementation of National Maritime Security Initiatives. In the
preamble to this final rule (USCG-2003-14792), we discuss the
background and purpose for all of the final rules. We discuss the
comments and changes made to parts 101 and 102 of the new subchapter H.
We also include a summary of the costs and benefits associated with
implementing the requirements of subchapter H, as well as the AIS final
rule.
2. Area Maritime Security (AMS). In the preamble of the ``Area
Maritime Security'' final rule (USCG-2003-14733), found elsewhere in
today's Federal Register, we discuss the comments and changes made to
part 103 of subchapter H and discuss the cost and benefit assessment
specific to that part.
3. Vessel Security. In the preamble of the ``Vessel Security''
final rule (USCG-2003-14749), found elsewhere in today's Federal
Register, we discuss the comments and changes made to part 104 of
subchapter H, to 33 CFR part 160, and to 46 CFR parts 2, 31, 71, 91,
115, 126, and 176. We also discuss the cost and benefit assessments
specific to those parts.
4. Facility Security. In the preamble of the ``Facility Security''
final rule (USCG-2003-14732), found elsewhere in today's Federal
Register, we discuss the comments and changes made to part 105 of
subchapter H and discuss the cost and benefit assessments specific to
that part.
5. Outer Continental Shelf (OCS) Facility Security. In the preamble
of the ``Outer Continental Shelf Facility Security'' final rule (USCG-
2003-14759), found elsewhere in today's Federal Register, we discuss
the comments and changes to part 106 of subchapter H and discuss the
cost and benefit assessments specific to that part.
6. Automatic Identification Systems (AIS). In the preamble of the
``Automatic Identification System; Vessel Carriage Requirement'' final
rule (USCG-2003-14757), found elsewhere in today's Federal Register, we
discuss the comments and changes made to 33 CFR parts 26, 161, 164, and
165 and discuss the cost and benefit assessments specific to those
parts.
Coordination With SOLAS Requirements
For each of the final rules, the requirements of the Maritime
Transportation Security Act (MTSA), section 102, align, where
appropriate, with the security requirements in the SOLAS amendments and
the ISPS Code. However, the MTSA has a broader application that
includes domestic vessels and facilities. Thus, where appropriate, we
have implemented the MTSA through the requirements in the SOLAS
amendments and the ISPS Code, parts A and B. Further discussion on this
coordination can be found in the preamble of the temporary interim rule
titled ``Implementation of National Maritime Security Initiatives''
(USCG-2003-14792), under ``Coordination with SOLAS Requirements.''
Discussion of Comments and Changes
Comments from each of the temporary interim rules and from the
public meeting held on July 23, 2003, have been grouped by topic and
addressed within the preambles to the applicable final rules. If a
comment applied to more than one of the six rules, we discussed it in
the preamble to each of the final rules that it concerned. For example,
discussions of comments that requested clarification or changes to the
Declaration of Security procedures are duplicated in the preambles to
parts 104, 105, and 106. Several comments were submitted to a docket
that included topics not addressed in that particular rule, but were
addressed in one or more of the other rules. This was especially true
for several comments submitted to the docket of part 101 (USCG-2003-
14792). In such cases, we discussed the comments only in the preamble
to each of the final rules that concerned the topic addressed.
Subpart A--General
This subpart concerns definitions, applicability, equivalents, and
other subjects of a general nature applicable to all of subchapter H.
Two commenters requested that the authority citation for 46 CFR
part 107 include the following citations: 46 U.S.C. Chapter 701;
Executive Order 12234; 45 FR 58801; 3 CFR, 1980 Comp., p. 277;
Executive Order 12777, 56 FR 54757, 3 CFR, 1991 Comp., p. 351; and
Department of Homeland Security Delegation No. 0170.1.
[[Page 60450]]
We are not amending the authority citation because the regulations
in 46 CFR part 107 are not issued under the citations that the
commenters propose to add. Additionally, these changes are beyond the
scope of this final rule.
We received five comments regarding our implementation of the
regulations. Three commenters strongly supported the implementation of
the rules, stating that maritime entities should be regulated by a
single law. One commenter supported the Coast Guard's implementation of
the regulations as written, because of a security breach that occurred
on a ferry within the past year. One commenter acknowledged and
commended the Coast Guard for the positive way it responded to
previously submitted comments.
Two commenters commended the Coast Guard for ensuring that the
interim rules resembled, in large part, the requirements adopted in the
SOLAS amendments and the ISPS Code.
We received 10 comments on the Coast Guard's interaction with other
Federal agencies. Seven commenters pointed out the need for consistency
and integration throughout the Department of Homeland Security (DHS)
and other Federal agencies in matters affecting maritime security.
Another commenter asked us to work with the Nuclear Regulatory
Commission to develop consistent and compatible regulations. One
commenter stated that the Coast Guard should develop a memorandum of
understanding with the Bureau of Customs and Border Protection (BCBP)
to clarify the roles of the two agencies.
We agree with the commenters regarding the need for consistency and
integration throughout DHS and other Federal agencies. In developing
our regulations, we worked closely with many other agencies of DHS
(e.g., the Transportation Security Administration (TSA), BCBP), the
Department of Transportation (DOT) (e.g., the Maritime Administration
(MARAD), the Research and Special Programs Administration (RSPA)), the
Environmental Protection Agency (EPA), the Department of Energy (DOE),
and the Minerals Management Service (MMS), among others. These
regulations reflect input from all the Federal agencies that have a
responsibility in the development and implementation of homeland
security regulations covering all modes of transportation. We intend to
continue these close working relationships as additional issues come to
light, and we will continue to define each of our roles to ensure
coordination and avoid duplication. Coordination with State and local
agencies will be addressed in the plan developed by each AMS Committee,
which is established by the cognizant COTP.
We received comments from EPA regarding the effects of our
regulations on EPA-regulated oil facilities. These comments focused
primarily on the potential overlapping provisions of 33 CFR part 105
and 40 CFR part 112. Overlap exists in four major areas: Notification
of security incidents, fencing and monitoring, evacuation procedures,
and security assessments. In cases of overlapping provisions for oil
facilities regulated both in parts 105 and 112, the requirements in our
final rules and EPA rulemakings do not supplant one another.
Additionally, an EPA-regulated facility need not amend the facility's
Spill Prevention Control and Countermeasure Plan or Facility Response
Plan, as we first stated in the temporary interim rule (68 FR 39251)
(part 101). We will be working further with EPA in the implementation
of these final rules to minimize the burden to the facilities while
ensuring that these facilities are secure. It is our belief that
response plans for EPA-regulated oil facilities will serve as an
excellent foundation for security plans that may be required under our
regulations.
EPA asked for clarification for facilities adjacent to the
navigable waters that handle or store cargo that is hazardous or a
pollutant but may not be marine transportation related facilities.
These facilities are covered by parts 101 through 103 of subchapter H
and, although there are no specific security measures for them in these
parts, the AMS Plan may set forth measures that will be implemented at
the various Maritime Security (MARSEC) Levels that may apply to them.
The AMS Assessment may reveal that these EPA-regulated facilities may
be involved in a transportation security incident and the COTP may
direct these facilities, through orders issued under existing COTP
authority, to implement security measures based on the facilities'
operations and the MARSEC Level. We encourage owners and operators of
these EPA-regulated facilities, as well as representatives from EPA, to
participate in AMS Committee activities.
EPA asked for further clarification on drills and exercises
requirements. As we stated in the temporary interim rule, non-security
drills and exercises may be combined with security drills to minimize
burden. Additionally, EPA-regulated facilities that conduct drills not
related to security are encouraged to communicate with the local COTP
and coordinate their drills at the area level. It is our intention to
give facilities and vessels in the port area as much notice as
practicable prior to an AMS Plan exercise to reduce the burden to those
entities. Again, we encourage owners and operators of these EPA-
regulated facilities, and EPA, to participate in AMS Committee
activities to maximize coordination and minimize burden.
EPA asked us to clarify the role of Area Contingency Plans with the
requirements of our final rules. Our rules are intended to work in
concert with Area Contingency Plans and do not preempt their
requirements. We envision that many members of the Area Committees who
are responsible for implementing Area Contingency Plans will also
become members of the AMS Committee. This participation will help
ensure that implementing an AMS Plan will not conflict with an Area
Contingency Plan.
Finally, EPA asked for clarification on requirements for marine
transportation related facilities that handle petroleum oil, non-
petroleum oil, and edible oil. These facilities are directly regulated
under Sec. 105.105(a)(1) and must meet the requirements of part 105.
One commenter emphasized the importance of working with State
homeland security representatives to resolve any State and local issues
or barriers that might interfere with providing appropriate security
for the maritime industry.
We stated in the temporary interim rule (68 FR 39255) (part 101)
that we consider standards for private security guards a matter of
private contract and of State and local law. We believe that it is
important to encourage the review of these standards, and therefore
intend to work with State homeland security representatives to resolve
any issues or barriers with regard to these State and local standards.
Two commenters requested that we add to Sec. 101.100 a new
paragraph that would read: ``maritime security plans developed under
these regulations and approved by the Coast Guard prepare vessel owners
and operators, vessel crews, facility owners and operators, and
facility personnel to deter to the maximum extent practicable maritime
security incidents. The security measures identified in the plans
provide deterrence and are not performance standards. The plans are
approved on a set of assumptions regarding the security vulnerabilities
recognized at the time of approval that may not be valid in an actual
maritime security incident.'' The commenters stated that this paragraph
would mirror the language of OPA 90 and clarify the intent of the
subchapter.
We agree, in part, with the commenters and have amended
[[Page 60451]]
Sec. 101.100. However, to remain broad and consistent with the tone of
the subchapter, we have rephrased the concept. In addition, we have
made an editorial correction to Sec. 101.100(a) to clarify that the
``purpose'' section applies to the entire subchapter.
The following discussion on Sec. 101.105, Definitions, is detailed
alphabetically to align, as much as possible, with the order of the
terms listed in the section.
Two commenters recommended deleting the language in the definition
of Sec. 101.105 that explains that an AMS Committee can be a Port
Security Committee established pursuant to NVIC 09-02, noting that this
additional language is adequately covered by the regulations in part
103.
We agree that the additional language in the definition of AMS
Committee is adequately explained in part 103, but we prefer to include
this language for absolute clarity.
After reviewing the applicability of this subchapter to barge
fleeting facilities, we determined that our reference to the Army Corps
of Engineers permitting regulations in 33 CFR part 322 was not a
complete representation of inland river permitting practices.
Therefore, we have amended the definition of ``barge fleeting
facility'' to clarify that these regulations apply to any barge
fleeting facility permitted by the Army Corp of Engineers, whether
under an individual permit, or a national or regional general permit.
We believe that any barge fleeting area constitutes an obstacle under
the definition of ``structure'' found in the Army Corps of Engineers
regulations at 33 CFR 322.2.
One commenter asked us to define ``breach of security'' to clarify
the intent of the regulations.
We agree with the commenter, and have added a definition for
``breach of security'' to Sec. 101.105.
After reviewing the applicability of this subchapter to certain
industrial vessels, we determined that vessels operating solely with
dredge spoils may not be involved in a transportation security
incident. Therefore, we amended the definition of ``cargo'' to clarify
that dredge spoils are not considered cargo for purposes of part 104 of
this chapter. This has the effect of removing certain dredges from
coverage under part 104.
Eleven commenters requested that the Coast Guard clarify ``Certain
Dangerous Cargo'' (CDC), stating that the rules should have one
definition.
There is one definition for CDC that applies to all of the security
regulations in subchapter H. Section 101.105 defines CDC as meaning
``the same as defined in 33 CFR 160.203.'' These comments revealed the
need to correct the citation; the correct reference should be Sec.
160.204, rather than Sec. 160.203. We have amended Sec. 101.105
accordingly. It should be noted that this change ensures consistency in
Title 33. We are constantly reviewing and, when necessary, revising the
CDC list based on additional threat and technological information.
Changes to Sec. 160.204 would affect the regulations in 33 CFR
subchapter H because any changes to the CDC list would also affect the
applicability of subchapter H. Any such changes would be the subject of
a future rulemaking.
One commenter requested that the Company Security Officer be
allowed to liaise with the Coast Guard at the District, Area, or
Headquarters level rather than the local COTP.
We agree that effective communication may be established between
the Company Security Officer and one or more COTPs and that for some
companies, effective communications with the Coast Guard may be at the
District, Area, or Headquarters level; therefore, we are amending the
definition of ``Company Security Officer'' in Sec. 101.105 to remove
the specific reference to the COTP.
After further review of the regulations, we are adding the
definition of ``dangerous goods and/or hazardous substances'' to
clarify the use of that term within the regulations.
Three commenters asked for clarification on dangerous substances
and devices. Two commenters stated that the definition of ``Dangerous
substances and devices'' is too broad and could be construed to include
illegal drugs, plants, ``and even Cuban cigars.'' The commenter noted,
``normal screening methods (x-ray and explosive-sniffing canines or
wands) will not detect 'substances' nor are they necessarily an item
that will cause `damage or injury.' '' The commenter recommended
amending the definition of ``Dangerous substances and devices'' to: (1)
Specify that such substances and devices included only those that have
``the potential to cause a transportation security incident''; (2) add
weapons, incendiaries, and explosives; and (3) specify that such
substances and devices do not include drugs, alcohol, or ``other
chemical or biological items not normally associated with
transportation security screening.'' One commenter asked how to handle
legal dangerous substances, such as fertilizer and gasoline.
We agree that the definition of dangerous substances and devices
could be subject to differing interpretations. We therefore revised and
simplified this definition by relating it to the potential of the
dangerous substance or device to cause a transportation security
incident similar to the commenter's recommendation. However, we
disagree that we need to expressly exclude the items suggested because
a transportation security incident is defined as a security incident
resulting in a ``significant'' loss of life, environmental damage,
transportation system disruption, or economic disruption in a
particular area. We believe the definition of a transportation security
incident is such that alcoholic beverages and drugs could not be
interpreted as dangerous substances and devices as the term has been
redefined. Such dangerous substances and devices would include, but not
be limited to, explosives, incendiaries, and assault weapons.
One commenter asked to clarify the difference between ``vessel-to-
vessel activity,'' as defined in Sec. 101.105, and ``vessel-to-vessel
interface,'' as used in part 104.
We find that the terms ``vessel-to-vessel activity'' and ``vessel-
to-vessel interface'' are comparable and have chosen to use the term
``vessel-to-vessel activity'' to align these regulations with the ISPS
Code. We have amended the definition of ``Declaration of Security'' in
Sec. 101.105 as well as Sec. Sec. 104.105 and 104.255 to use the term
``vessel-to-vessel activity'' in place of ``vessel-to-vessel
interface,'' for consistency.
We received 26 comments dealing with the definition of
``facility.'' One commenter asked whether a facility that is inside a
port that handles cargo or containers, but does not have direct water
access, is covered under the definition of facility. Another commenter
recommended that the definition specify that facilities without water
access and that do not receive vessels be exempt from the requirements.
One commenter asked whether small facilities, located inland on a
river, would be subject to part 105 if they receive vessels greater
than 100 gross registered tons on international voyages. One commenter
asked whether a company that receives refined products via pipeline
from a dock facility that the company does not own qualifies as a
regulated facility. One commenter asked whether part 105 applies to
facilities at which vessels do not originate or terminate voyages. Two
commenters stated that the word ``adjacent'' in the definition should
be changed to read ``immediately adjacent'' to the ``navigable
waters.'' One commenter suggested that, in the definition, the word
``adjacent'' be
[[Page 60452]]
defined in terms of a physical distance from the shore and the terms
``on, in or under'' and ``waters subject to the jurisdiction of the
U.S.'' be clarified. Two commenters understand the definition of
``facility'' to possibly including overhead power cables, underwater
pipe crossings, conveyors, communications conduits crossing under or
over the water, or a riverbank. One commenter asked for a blanket
exemption for electric and gas utilities. One commenter suggested
rewriting the applicability of ``facilities'' in plain language or,
alternatively, providing an accompanying guidance document to help
owner and operators determine whether their facilities are subject to
these regulations. One commenter asked us to clarify which facilities
might ``qualify'' for future regulation and asked us to undertake a
comprehensive review of security program gaps and overlaps, in
coordination with DHS. One commenter stated that a facility that
receives only vessels in ``lay up'' or for repairs should not be
required to comply with part 105.
We recognize that the definition of ``facility'' in Sec. 101.105
is broad, and we purposefully used this definition to be consistent
with existing U.S. statutes regarding maritime security. A facility
within an area that is a marine transportation related terminal or that
receives vessels over 100 gross tons on international voyages is
regulated under Sec. 105.105. All other facilities in an area not
directly regulated under Sec. 105.105, such as some adjacent
facilities and utility companies, are covered under parts 101 through
103. If the COTP determines that a facility with no direct water access
may pose a risk to the area, the facility owner or operator may be
required to implement security measures under existing COTP authority.
With regard to facilities that receive only vessels in ``lay up'' or
for repairs, we amended the regulations to define, using the definition
of a general shipyard facility from 46 CFR 298.2, and exempt general
shipyard facilities from the requirements of part 105 unless the
facility is subject to 33 CFR parts 126, 127, or 154 or provides any
other service beyond those services defined in Sec. 101.105 to any
vessel subject to part 104. In a similar manner, in part 105, we are
also exempting facilities that receive vessels certificated to carry
more than 150 passengers if those vessels do not carry passengers while
at the facility nor embark or disembark passengers from the facility.
We exempted facilities that receive vessels for lay-up, dismantling, or
placing out of commission to be consistent with the other changes we
have discussed above. The facilities listed in the amended Sec. Sec.
105.105 and 105.110 will be covered by the AMS Plan, and we intend to
issue further guidance on addressing these facilities in the AMS Plan.
Finally, while not in ``plain language'' format, we have attempted to
make these regulations as clear as possible. We have created Small
Business Compliance Guides, which should help facility owners and
operators determine if their facilities are subject to these
regulations. These Guides are available where listed in the
``Assistance for Small Entities'' section of this final rule.
Five commenters recommended changes to the definitions of
``facility'' and ``OCS facility'' in Sec. 101.105 in order to clarify
the applicability of parts 104, 105, and 106 to Mobile Offshore
Drilling Units (MODUs). Two commenters suggested adding language to the
facility definition to specifically include MODUs that are not
regulated under part 104, consistent with the definition of OCS
facility. Another commenter stated that if we change the definition to
include MODUs not regulated under part 104, then we also should add an
explicit exemption for these MODUs from part 105. Three commenters
suggested deleting the words ``fixed or floating'' and the words
``including MODUs not subject to part 104 of this subchapter'' in Sec.
106.105 and adding a paragraph to read ``the requirements of this part
do not apply to a vessel subject to part 104 of this subchapter.''
With regard to the definition of ``facility'' and the suggested
additional language regarding MODUs, the definition clearly
incorporates MODUs that are not covered under part 104 and MODUs are
sufficiently covered under parts 101 through 103 and 106. Therefore, we
are not amending our definition of facility nor incorporating the
suggested explicit exemption from part 105 because these MODUs are
excluded. We have, however, amended the applicability section of part
104 (Sec. 104.105) so that foreign flag, non-self propelled MODUs that
meet the threshold characteristics set for OCS facilities are regulated
by 33 CFR part 106, rather than 33 CFR part 104. We have done so
because MODUs act and function more like OCS facilities, have limited
interface activities with foreign and U.S. ports, and their personnel
undergo a higher level of scrutiny to obtain visas to work on the Outer
Continental Shelf. These amendments to Sec. 104.105 required us to add
a definition for ``cargo vessel'' in Sec. 101.105. With these changes,
we believe the existing definitions of ``facility'' and ``OCS
facility'' in Sec. 101.105 are sufficient to conclusively identify
those entities that are subject to parts 104, 105, and 106. In
addition, the definition of ``OCS facility,'' as written, ensures that
these entities will be subject to relevant elements of an OCS Area
Maritime Security Plan. We believe the language in Sec. 106.105, read
in concert with the amended Sec. 104.105(a)(1), and the existing
definitions in part 101, is sufficient to preclude MODUs that are in
compliance with part 104 from being subject to part 106.
Two commenters stated that our definition of ``international
voyage'' includes voyages made by vessels that solely navigate the
Great Lakes and St. Lawrence River. The commenter contended that SOLAS
specifically exempts vessels that navigate in this area from all the
requirements of SOLAS.
We are aware that vessels on the Great Lakes and St. Lawrence
Seaway, which are otherwise exempted from SOLAS, are required to comply
with our regulations. We have amended the definition of ``international
voyage'' in Sec. 101.105 to make this clear. We do not believe that we
can require lesser security measures for certain geographic areas, such
as the Great Lakes and the St. Lawrence Seaway, and still maintain
comparable levels of security throughout the maritime domain. In
addition, while SOLAS does not typically apply to the Great Lakes and
St. Lawrence Seaway, it allows contracting governments to determine
appropriate applicability for their national security. For the U.S.,
the MTSA does not exempt geographic areas from maritime security
requirements. If vessel owners or operators believe that any vessel
security requirements are unnecessary due to their operating
environment, they may apply for a waiver under the procedures allowed
in Sec. 104.130. Additionally, vessel owners or operators may submit
for approval an Alternative Security Program to apply to vessels that
operate solely on the Great Lakes and St. Lawrence Seaway.
Two commenters proposed language to clarify the definition of ``OCS
facility'' to make clear that the term includes MODUs when attached to
the subsoil or seabed for the exploration, development, or production
of oil or natural gas. One commenter suggested that this additional
language would ``provide clarification regarding the applicability of''
part 106.
The purpose of the broad definition of ``OCS facility'' in Sec.
101.105 is to incorporate all such facilities so that the OCS
facilities that are not regulated under part 106 will be regulated
under
[[Page 60453]]
parts 101 through 103. The proposed additional language would not add
clarity to part 106 because the applicability in Sec. 106.105 states
that the section applies only to those MODUs that are operating for the
purposes of engaging in the exploration, development, or production of
oil, natural gas, or mineral resources.
Two commenters asked the Coast Guard to change the language in
Sec. 104.400(a) to delineate the responsibilities of towing vessels
and facilities when dealing with unmanned vessels.
We are amending the definition of ``owner or operator'' in Sec.
101.105 to clarify when ``operational control'' of unmanned vessels
passes between vessels and facilities. No change was made to Sec.
104.400(a) because the change to the definition of ``owner or
operator'' addresses this concern.
Two commenters suggested amending the definition of ``owner or
operator'' so that the definition includes, for OCS facilities: ``the
lessee or the operator designated to act on behalf of the lessee in
accordance with 30 CFR part 250.'' One commenter sought clarification
of the terms ``owner or operator'' and suggested adding ``operational
control is the ability to influence or control the physical or
commercial activities pertaining to that facility for any period of
time.''
We disagree with adding the suggested language of the first
commenter because we have concluded that the owner and the person with
operational control are in the best position to implement these
regulations and, therefore, should be responsible for implementation.
The language proposed would include a lessee regardless of whether or
not that lessee maintains such operational control. We also disagree
with adding the suggested language of the second comment because it
does not provide for security activities in addition to the physical or
commercial activities.
After further review of the definition for passenger vessel, we
determined that a clarification was needed with respect to vessels on
international voyages. In the temporary interim rule we unintentionally
included all vessels carrying more than 12 passengers because we did
not specify that a vessel on an international voyage would be deemed a
passenger vessel only if it carried a passenger-for-hire. We have
amended the definition to clarify that when a vessel is on an
international voyage carrying more than 12 passengers, a vessel is
considered a passenger vessel only if one of those passengers is a
passenger-for-hire. We have made a conforming amendment to Sec.
104.105.
Three commenters requested that the Coast Guard clarify the term
``persons'' to exclude crewmembers.
We do not provide a specific definition for the term ``persons'' in
these rules. It was our intent for the word ``persons'' to include
crewmembers.
We received five comments regarding the use of the word ``port'' in
the regulations. Four commenters requested that we amend many sections
of parts 101 and 103 to remove the word ``port'' from the regulatory
text, stating that parts 101 and 103 are not necessarily applicable to
just ports, but to an area as a whole. One commenter recommended that
we include definitions for ``Seaport,'' ``Port Authority,'' ``Port
Director,'' and ``Seaport Security Assessment/Plan,'' stating that a
seaport can act as its own legal entity and enforce its own laws and
regulations.
As described in the temporary interim rule in part 101, Table 4 (68
FR 39266-39267), ``area maritime,'' ``port,'' and ``port facility'' are
comparable, and we do not believe the recommended editorial changes add
significant value or clarity. In addition, adding definitions
incorporating ``seaport,'' as suggested, is less inclusive than what is
addressed in the MTSA. Furthermore, this concept does not align with
the ISPS Code. We are not, therefore, amending parts 101 or 103.
Six commenters stated that part 105 should not apply to marinas
that receive a small number of passenger vessels certificated to carry
more than 150 passengers or to ``mixed-use or special-use facilities
which might accept or provide dock space to a single vessel'' because
the impact on local business in the facility could be substantial. Two
commenters stated that private and public riverbanks should not be
required to comply with part 105 because ``there is no one to complete
a Declaration of Security with, and no way to secure the area, before
the vessel arrives.'' Two commenters stated that facilities that are
``100 percent public access'' should not be required to comply with
part 105 because these types of facilities are ``vitally important to
the local economy, as well as to the host municipalities.'' This
commenter also stated that vessels certificated to carry more than 150
passengers frequently embark guests at private, residential docks and
small private marinas for special events such as weddings and
anniversaries and may visit such a dock only once.
We agree that the applicability of part 105 to facilities that have
minimal infrastructure, but are capable of receiving passenger vessels,
is unclear. Therefore, we added a definition in part 101 for a ``public
access facility'' to mean a facility approved by the cognizant COTP
with public access that is primarily used for purposes such as
recreation or entertainment and not for receiving vessels subject to
part 104. By definition, a public access facility has minimal
infrastructure for servicing vessels subject to part 104 but may
receive ferries and passenger vessels other than cruise ships, ferries
certificated to carry vehicles, or passenger vessels subject to SOLAS.
Minimal infrastructure would include, for example, bollards, docks, and
ticket booths, but would not include, for example, permanent structures
that contain passenger waiting areas or concessions. We have not
allowed public access facilities to be designated if they receive
vessels such as cargo vessels because such cargo-handling operations
require additional security measures that public access facilities
would not have. We amended part 105 to exclude these public access
facilities, subject to COTP approval, from the requirements of part
105. We believe this construct does not reduce security because the
facility owner or operator or entity with operational control over
these types of public access facilities still has obligations for
security that will be detailed in the AMS Plan, based on the AMS
Assessment. Additionally, Vessel Security Plans must address security
measures for using the public access facility. This exemption does not
affect existing COTP authority to require the implementation of
additional security measures to deal with specific security concerns.
We have also amended Sec. 103.505, to add public access facilities to
the list of elements that must be addressed within the AMS Plan.
One commenter noted that in the definition of ``transportation
security incident,'' there should be a clear definition of the specific
event or events the Coast Guard is trying to avoid or prevent, stating
that for some of these events, industry already has good mitigation
strategies in place that might avoid the need to add additional
security measures.
The event that the Coast Guard is trying to avoid or prevent is a
transportation security incident, which is a security incident
resulting in a significant loss of life, environmental damage,
transportation system disruption, or economic disruption in a
particular area. As indicated in the
[[Page 60454]]
temporary interim rule (68 FR 39272) (part 101), we acknowledged that
``many companies already have spent a substantial amount of money and
resources to improve and upgrade security.'' These improvements will be
taken into account in their Vessel or Facility Security Assessments and
subsequent security plan development.
One commenter suggested that the definition of ``unaccompanied
baggage'' be revised to include baggage for which there is no
accompanying passenger or crewmember. The commenter also noted that, if
read literally, the definition in Sec. 101.105 would include all
passenger baggage already ``checked,'' and therefore separated from its
owner. The suggested definition was the following: ``baggage that was
to be carried on board the ship when no passenger or crewmember was
traveling on the same voyage or portion of that voyage.''
We agree that ``unaccompanied baggage'' should include baggage for
which there is not an accompanying passenger or crewmember. With regard
to ``checked'' baggage, our definition aligns with the ISPS Code, part
B. ``Checked'' baggage at the point of inspection or screening should
be with a crewmember or other person and therefore remains accompanied.
After inspection or screening, the baggage will be controlled until it
is loaded on the vessel. We have amended the definition of
``unaccompanied baggage'' to reflect the above and clarified the
reference to an ``other person.''
One commenter asked us not to change the definition of ``vessel
stores'' as published in the temporary interim rule.
The definition of ``vessel stores'' remains the same as published
in the temporary interim rule (68 FR 39281) (part 101).
We received 11 comments relating to the use of the terms ``vessel-
to-facility interface,'' ``vessel-to-port interface,'' and ``vessel-to-
vessel activity.'' Seven commenters requested that the Coast Guard be
consistent in its use of ``vessel-to-vessel interface'' in Sec.
101.105 and use the word ``cargo'' instead of the phrase ``goods or
provisions.'' One commenter asked us to modify the definition of a
``vessel-to-vessel activity'' to include the transfer of a container to
or from a manned or unmanned vessel. One commenter noted that it should
be made clear that the term ``vessel-to-facility interface'' refers to
when the vessel is at the facility or arriving at the facility.
We agree with the commenters. We have amended the definitions for
``vessel-to-facility interface,'' ``vessel-to-port interface,'' and
``vessel-to-vessel activity'' in Sec. 101.105 to use the words
``cargo'' and ``vessel stores'' instead of the word ``goods'' to be
clearer for the intended activities. The term ``vessel-to-facility
interface'' clearly states that the vessel is either at, or arriving
at, the facility, and therefore, we did not amend the definition
further.
Five commenters requested that we amend the definition of ``waters
subject to the jurisdiction of the United States'' to simply refer to
the definition of that term in 33 CFR 2.38, stating that doing so would
be less confusing. Four commenters asked us to clarify the term
``superadjacent'' used in the same definition.
The definition suggested by the commenter would exclude application
of these regulations to the Exclusive Economic Zone (EEZ) and waters
superjacent to the OCS. We believe that including the EEZ and the
waters superjacent to the OCS is crucial to implementing the
comprehensive security regime intended by the MTSA. It is also
consistent with the Coast Guard's anti-terrorism authorities in 33
U.S.C. 1226. However, we agree the definition is somewhat confusing and
needs clarification. In the temporary interim rules, we defined
``waters subject to the jurisdiction of the United States'' to include,
in addition to the EEZ and the waters superjacent to the Outer
Continental Shelf, the ``navigable waters'' as defined in 46 U.S.C.
2101(17a). Navigable waters in this context, by reference to
Presidential Proclamation No. 5928, extend to the full breadth of the
territorial sea that is 12 nautical miles wide, adjacent to the coast
of the United States, and seaward of the territorial sea baseline. We
believe the better approach is to amend our recent recodification of
jurisdictional terms in 33 CFR part 2 to reflect that, consistent with
the temporary interim rules, the 12 nautical mile territorial sea
applies not only to statutes under subtitle II of title 46 but also
statutes under subtitle VI of title 46 (section 102 of the MTSA). Doing
so simplifies the definition of ``waters subject to the jurisdiction of
the United States'' for purposes of the regulations by permitting
reference, in part, to an existing regulatory definition. The amended
definition of ``waters subject to the jurisdiction of the United
States'' reflects this change.
Five commenters disagree with applying the same regulations to all
segments of the maritime industry, stating that it is not practical.
One of these commenters suggested that the regulations exempt entities,
such as nuclear facilities covered under 10 CFR part 73 and 49 CFR part
172, because they are already regulated.
We developed these regulations to be tailored to diverse industries
within the maritime community through various provisions, such as the
Alternative Security Program. If a nuclear facility is involved in the
activities regulated under part 105, then the facility must comply with
that part. However, we have made multiple provisions within the
regulations so entities that are already covered by other requirements
for security should be able to coordinate their compliance with these
rules and others they already have implemented.
Two commenters were concerned about the breadth of the regulations.
One commenter asked that the regulations be broadened to allow for
exemptions. One commenter stated that the applicability as described in
Sec. 101.110 is ``much too general,'' stating that it can be
interpreted as including a canoe tied up next to a floating dock in
front of a private home. The commenter concluded that such a broad
definition would generate ``a large amount of confusion and
discontent'' among recreational boaters and waterfront homeowners.
Our applicability for the security regulations in 33 CFR chapter I,
subchapter H, is for all vessels and facilities; however, parts 104,
105, and 106 directly regulate those vessels and facilities we have
determined may be involved in transportation security incidents, which
does not include canoes and private residences. For example, Sec.
104.105(a) applies to commercial vessels; therefore, a recreational
boater is not regulated under part 104. If a waterfront homeowner does
not meet any of the specifications in Sec. 105.105(a), the waterfront
homeowner is not regulated under part 105. It should be noted that all
waterfront areas and boaters are covered by parts 101 through 103 and,
although there are no specific security measures for them in these
parts, the AMS Plan may set forth measures that will be implemented at
the various MARSEC Levels that may apply to them. Security zones and
other measures to control vessel movement are some examples of AMS Plan
actions that may affect a homeowner or a recreational boater.
Additionally, the COTP may impose measures, when necessary, to prevent
injury or damage or to address specific security concerns.
Five commenters addressed the applicability of the regulations with
respect to facilities and the boundaries of the Coast Guard
jurisdiction relative to that of other Federal agencies. Four
commenters advocated a ``firm line of
[[Page 60455]]
demarcation'' limiting the Coast Guard authority to the ``dock,''
because as the rule is now written, a facility may still be left to
wonder which Federal agency or department might have jurisdiction over
it when it comes to facility security. One commenter suggested that the
Coast Guard jurisdiction should not extend beyond ``the first
continuous access control boundary shore side of the designated
waterfront facility.''
Section 102 of the MTSA requires the Secretary of the Department in
which the Coast Guard is operating to prescribe certain security
requirements for facilities. The Secretary has delegated that authority
to the Coast Guard. Therefore, the Coast Guard is not only authorized,
but also required under the MTSA, to regulate beyond the ``dock.''
Two commenters requested clarification on our reference to SOLAS
and facility applicability. One commenter stated that because the
applicability of the various chapters of SOLAS is not consistent, it is
necessary to specify particular chapters in SOLAS to define the
applicability of this regulation to U.S. flag vessels. The commenter
requested that we limit the reference to SOLAS in Sec. 105.105(a)(3)
to ``SOLAS Chapter XI-2.'' Another commenter stated that it is not
clear whether the words ``greater than 100 gross registered tons''
applied to SOLAS vessels as well as to vessels that are subject to 33
CFR Chapter I, subchapter I.
We agree that the general reference to SOLAS is broad and could
encompass more vessels than necessary. We have amended the
applicability reference to read ``SOLAS Chapter XI'' because subchapter
H addresses those requirements in SOLAS Chapter XI. Also, we have
amended Sec. 105.105(a) to apply the term ``greater than 100 gross
registered tons'' to facilities that receive vessels subject only to
subchapter I. We did not include references to foreign or U.S.
ownership in the applicability paragraphs because it is duplicative to
the existing language.
Thirty commenters commended the Coast Guard for providing an option
for an Alternative Security Program as described in Sec. 101.120(b)
and urged the Coast Guard to approve these programs as soon as
possible.
We believe the provisions in Sec. 101.120(b) will provide greater
flexibility and will help owners and operators meet the requirements of
these final rules. We will review Alternative Security Program
submissions in a timely manner to determine if they comply with the
security regulations for their particular industry segment. The Coast
Guard has already received and begun reviewing Alternative Security
Programs, and we have been able to approve three such programs. We have
amended Sec. 101.125 to list those approved Alternative Security
Programs. We will announce new approvals of Alternative Security
Programs through the Federal Register, and intend to update Sec.
101.125 on an annual basis.
Twenty commenters requested clarification on the Alternative
Security Program. Three commenters requested that the Coast Guard work
with their industry association to come up with their own security
program. Two commenters asked for guidance on how to implement an
Alternative Security Program. One commenter stated that the Coast Guard
should recognize its existing security programs. One commenter
suggested that we allow owners or operators to use industry security
standards, recommended practices, and guidelines as Alternative
Security Programs. Four commenters requested that Alternative Security
Programs be available to certain owners and operators of foreign flag
vessels that are not subject to SOLAS. Three commenters asked for
clarification as to which facilities are eligible to participate in an
Alternative Security Program. One commenter recommended that the
Alternative Security Program be available to vessels subject to SOLAS.
We encourage industries to develop Alternative Security Programs
that address those aspects of security unique to their industry.
Section 101.120 allows industry associations to submit Alternative
Security Programs to the Coast Guard for approval. As part of the
review process, we will work with industry representatives to assure
that Alternative Security Programs meet the requirements of the rules
and ensure maritime security. We agree that the Alternative Security
Program should be available to certain owners and operators of foreign
flag vessels that are not subject to SOLAS and to facilities that serve
vessels on international voyages. Because the AMS Plan will be the
approved port facility security plan as described in the ISPS Code,
part A, we have amended Sec. 101.120 to allow certain facilities that
serve vessels subject to SOLAS Chapter XI the option of using an
Alternative Security Program that has been reviewed and approved by the
Coast Guard. We do not intend to allow vessels subject to SOLAS to use
an Alternative Security Program. Two commenters stated that Sec.
101.120 does not allow an industry association to submit an Alternative
Security Program for approval. One commenter asked that the regulations
for Alternative Security Programs be clarified to allow participants to
carry a copy of the Coast Guard approved Alterative Security Program on
board vessels or at facilities.
Section 101.120(c) does not preclude an industry association from
submitting an Alternative Security Program for approval. In addition,
the regulations requiring the availability of the security plans on
board the vessels or at the facility do not preclude the owner or
operator of the vessel or facility from keeping a Coast Guard approved
Alternative Security Program on board the vessel or at the facility.
Furthermore, we have amended Sec. 101.120(b)(3) and added a new
provision, Sec. 101.120(b)(4), to clarify that owners or operators
implementing an Alternative Security Program must provide information
to the Coast Guard when requested. This clarification was needed, among
other things, to ensure that the Coast Guard has access to relevant
information to assist our compliance and verification responsibilities.
The information may also be needed to help the Coast Guard assess
vulnerabilities, conduct an AMS Assessment, or develop an AMS or
National Security Plan. Finally, after further review of parts 101 and
104 through 106, we have amended Sec. Sec. 101.120(b)(3),
104.120(a)(3), 105.120(c), and 106.115(c) to clarify that a vessel or
facility that is participating in the Alternative Security Program must
complete a vessel or facility specific security assessment report in
accordance with the Alternative Security Plan, and it must be readily
available.
Three commenters stated that the cognizant COTP should be
responsible for reviewing the submissions for the Alternative Security
Program when the company operates exclusively in one COTP zone. The
commenters noted that COTPs have the best knowledge of the vessels and
facilities operating in their zone.
We require that requests to implement an Alternative Security
Program be submitted for approval to the Commandant (G-MP) because we
want to ensure uniformity across all COTP zones in the implementation
of this program. The Commandant (G-MP) will coordinate and consult with
local COTPs, Districts, and Areas, as needed, on these submissions.
After further review of Sec. 101.120, we are amending the section
to provide a procedure for amending an Alternative Security Program,
and to align the effective period of an Alternative Security Program
with the 5-year period provided for other security plans. Additionally,
after review of the
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``Submission and approval'' requirements in Sec. Sec. 101.120,
104.410, 105.410, and 106.410, we have amended the requirements to
clarify that security plan submissions can be returned for revision
during the approval process.
We received seven comments regarding waivers, equivalencies, and
alternatives. Three commenters appreciated the flexibility of the Coast
Guard in extending the opportunity to apply for a waiver or propose an
equivalent security measure to satisfy a specific requirement. Four
commenters requested detailed information regarding the factors the
Coast Guard will focus on when evaluating applications for waivers,
equivalencies, and alternatives.
The Coast Guard believes that equivalencies and waivers provide
flexibility for vessel owners and operators with unique operations.
Sections 104.130, 105.130, and 106.125 state that vessel or facility
owners or operators requesting waivers for any requirement of part 104,
105, or 106 must include justification for why the specific requirement
is unnecessary for that particular owner's or operator's vessel or
facility or its operating conditions. Section 101.120 addresses
Alternative Security Programs and Sec. 101.130 provides for
equivalents to security measures. We intend to issue guidance that will
provide more detailed information about the application procedures and
requirements for waivers, equivalencies, and the Alternative Security
Program.
One commenter requested that we allow a group of facilities that
combine to act as an identified unit to be considered as an equivalency
or add a definition of either ``port'' or ``port authority.'' The
commenter also stated that part 105 should allow port security plans,
developed by local government port authorities and approved by State
authorities, to serve as equivalent security measures.
We do not agree with adding a definition of ``port'' to recognize a
group of facilities that combine to act as an identified unit. However,
groups of facilities may work together to enhance their collective
security and achieve the performance standards in the regulations.
Locally developed port security plans may serve as an excellent
starting point for those facilities located within the jurisdiction of
a port authority. We believe that the provisions of Sec. Sec.
105.300(b), 105.310(b), and 105.400(a) permit the COTP to approve a
Facility Security Plan that covers multiple facilities, such as a co-
located group of facilities that share security arrangements, provided
that the particular aspects and operations of each subordinate facility
are addressed in the common assessment and security plan. A single
Facility Security Officer for the port or cooperative should be
designated to facilitate this common arrangement. Finally, local
security programs developed by entities such as a port authority or a
port cooperative may be submitted to the Coast Guard for consideration
as Alternative Security Programs in accordance with Sec. 101.120(c).
Six commenters asked that terms and definitions in the regulations
match those in the ISPS Code, and not the terms and definitions in the
MTSA, to minimize confusion among international companies. Two
commenters stated that inclusion of the ISPS Code terms ``port facility
security plan'' and ``port facility security officer'' in the
definitions of AMS Plan and Federal Maritime Security Coordinator,
respectively, in these regulations will cause confusion and is contrary
to the intent of the ISPS Code.
We recognize that it can be confusing for foreign flag vessels to
operate under different definitions than those present in the ISPS
Code. The ISPS Code, however, gives contracting governments latitude in
implementing its provisions. At the same time, the MTSA imposes its own
requirements. Our regulations align the requirements of both the ISPS
Code and the MTSA, and the definitions used within the regulations
reflect this alignment.
We received several comments that were beyond the scope of this
final rule. One commenter supported making foreign flag vessel owners,
operators, and vessel managers financially accountable for the direct
and indirect economic impacts resulting from a terrorist activity
stemming from one of their company's managed commercial vessels. One
commenter asked that their product be included as part of these final
rules.
Imposing these suggested financial obligations is beyond the scope
of this final rule. There are, however, new provisions such as the
continuous synopsis record (SOLAS Chapter XI-1, regulation 5) that
effectively address ownership and identify those that may be
responsible for the operation of the vessel. Product solicitations are
also beyond the scope of this final rule and are not addressed.
Three commenters questioned the foreign port assessment program.
One commenter stated the U.S. assessment of foreign ports could create
``too many layers'' of inspection, stating that the European Commission
will assess the security of their own ports, and the U.S. assessment
process is, therefore, duplicative. Two commenters recommended that the
U.S. accept assessments of foreign ports by reputable maritime
administrations in accordance with IMO requirements. One commenter
expressed concerns regarding the Coast Guard's intention to conduct
foreign port audits, and expressed hope that the U.S. would accept the
International Labor Organization's (ILO) work on seafarer
credentialing.
The Coast Guard, in cooperation with TSA, BCBP, and MARAD, is still
developing the foreign port assessment program to implement 46 U.S.C.
70108. We intend to work cooperatively with officials in foreign ports
and other organizations, such as the European Commission and ILO, to
reduce unnecessary duplication in assessing the effectiveness of
antiterrorism measures maintained at foreign ports and the
credentialing of seafarers.
Subpart B--Maritime Security (MARSEC) Levels
This subpart concerns the setting of MARSEC Levels.
We received 15 comments regarding MARSEC Level alignment. One
commenter agreed with the alignment. One commenter stated that
Sec. Sec. 101.200 and 101.205 are inconsistent with one another. Six
commenters stated that problems are likely to arise because MARSEC
Levels do not match other Federal threat levels, such as the Homeland
Security Advisory System (HSAS).
We disagree with the dissenting commenters. Section 101.200(d)
states that COTPs may temporarily raise the MARSEC Level for their
specific areas of responsibility when necessary to address an exigent
circumstance immediately affecting the security of the maritime
elements of their areas of responsibility. This is a narrow set of
circumstances; we expect national MARSEC Levels to be established at
the level of the Commandant, as stated in Sec. 101.205. Additionally,
as stated in Sec. 101.205, MARSEC Levels have been aligned with DHS's
HSAS.
In reviewing Table 101.205, we noted that the reference to the Blue
HSAS threat condition should be ``guarded'' and reference to the Yellow
HSAS threat condition should be ``elevated.'' We have amended Table
101.205 to reflect this clarification.
Subpart C--Communication (Port-Facility-Vessel)
This subpart concerns the communication of MARSEC Levels, threats,
confirmations of attainment,
[[Page 60457]]
suspicious activities, breaches of security, and transportation
security incidents.
We received 28 comments regarding communication of changes in the
MARSEC Levels. Most commenters were concerned about the Coast Guard's
capability to communicate timely changes in MARSEC Levels to facilities
and vessels. Some stressed the importance of MARSEC Level information
reaching each port area in the COTP's zone and the entire maritime
industry. Some stated that local Broadcast Notice to Mariners and
MARSEC Directives are flawed methods of communication and stated that
the only acceptable means to communicate changes in MARSEC Levels, from
a timing standpoint, are via email, phone, or fax as established by
each COTP.
MARSEC Level changes are generally issued at the Commandant level
and each Marine Safety Office (MSO) will be able to disseminate them to
vessel and facility owners or operators, or their designees, by various
means. Communication of MARSEC Levels will be done in the most
expeditious means available, given the characteristics of the port and
its operations. These means will be outlined in the AMS Plan and
exercised to ensure vessel and facility owners and operators, or their
designees, are able to quickly communicate with us and vice-versa.
Because MARSEC Directives will not be as expeditiously communicated as
other COTP Orders and are not meant to communicate changes in MARSEC
Levels, we have amended Sec. 101.300 to remove the reference to MARSEC
Directives. We have added a reference to electronic means.
One commenter suggested that major commodity groups, including the
chemical, hazardous material, utility, rail, truck, and air
transportation industries receive information regarding potential
threats from the local COTP.
As stated in Sec. 101.300(b), the COTP will, when appropriate,
communicate to port stakeholders certain information regarding known
threats that may cause a transportation security incident.
We received 15 comments on the facility owner's or operator's
responsibility to communicate changes in MARSEC Levels to vessels bound
for the facility. Nine commenters noted that it would be difficult and
impractical for facilities to notify vessels 96 hours prior to arrival
of changes in MARSEC Levels, because some vessels and facilities do not
have a means to provide secure communications. Three commenters stated
that facilities should not be responsible for notifying vessels that
have not arrived at the facility of MARSEC Level changes. In contrast,
one commenter suggested that the Coast Guard amend Sec. 101.300(a) to
include a provision for facilities to notify vessels of MARSEC Level
changes within 96 hours, much like that which is currently found in
Sec. 105.230(b)(1).
The intent of the regulations is to give vessel owners or operators
the maximum amount of time possible to ensure the higher MARSEC Level
is implemented on the vessel prior to interfacing with a facility. This
ensures that the facility's security at the higher MARSEC Level is not
compromised when the vessel arrives. Therefore, while it may be
difficult to contact a vessel in advance of its arrival, it is
imperative for the security of the facility and the vessel.
Additionally, communications between the facility and the vessel do not
need to be secure, as MARSEC Levels are not classified information. We
have not amended Sec. 101.300(a) because this section is intended to
regulate communication at the port level, whereas Sec. 105.230(b)(1)
is intended to regulate communication at the individual facilities
within the port.
One commenter asked whether the COTP's communication of required
actions to minimize risk, under Sec. 101.300(b)(5), refers only to
measures that have been detailed in the Vessel Security Plan or the
Facility Security Plan.
At any MARSEC Level, the COTP, consistent with the authority in 33
U.S.C. chapter 1221 and 50 U.S.C. chapter 191, may require owners and
operators to take measures to counter security threats that are beyond
those detailed in their security plans when necessary to prevent injury
or damage or to secure the rights and obligations of the U.S. This is
consistent with requirements specified in the ISPS Code.
We received 19 comments on the requirements that owners and
operators of vessels and facilities confirm attainment of increased
MARSEC Level security measures. Some requested that the Master, not the
owner or operator, be responsible for reporting to the local COTP the
attainment of the change in MARSEC Level. Several commenters sought
clarification as to which COTP they need to report their attainment of
security measures. Others questioned the ability of the COTP to receive
potentially hundreds of calls confirming attainment of security
measures in their security plan or requirements imposed by the COTP.
Finally, some questioned the benefit of reporting compliance with the
MARSEC Level change.
We agree with the comment to allow owners and operators to
designate the Master or another appropriate person to be responsible
for reporting the attainment of the MARSEC Level and are amending Sec.
101.300 to allow this. Our intent is to have one company representative
contact the local COTP to minimize the number of calls to the local
COTP during a change in MARSEC Level. Consistent with the ISPS Code,
part A, attainment measures should be reported to the COTP that issued
the notice of the change in MARSEC Levels to that vessel, so as to
ensure compliance.
Two commenters suggested that the Coast Guard should be responsible
for facilitating communications between vessels and facilities.
We believe that it is the Coast Guard's role to ensure that vessels
and facilities have the proper procedures and equipment for
communicating with each other. The Coast Guard does have communication
responsibilities, as found in Sec. 101.300. It is imperative, however,
that vessels and facilities effectively communicate with each other to
effectively coordinate the implementation of security measures. Thus,
we have placed this requirement on the owner or operator, not the Coast
Guard. The Coast Guard will be inspecting facilities and vessels to
ensure this communication is accomplished.
Twelve commenters requested that the Coast Guard issue specific
communications guidelines to affected facilities and vessels bound for
and operating in U.S. ports. One commenter stated that, in guidance, we
should define a means by which changes in MARSEC Levels will be
communicated to U.S. flag vessels that are not in the coastal waters.
We recognize that further guidance should be provided to ensure
communication expectations are clearly outlined. We intend to update
the guidance in NVIC 9-02 (Guidelines for Port Security Committees, and
Port Security Plans Required for U.S. Ports) to address communications
with facilities and vessels bound for and operating in U.S. ports. We
will also address communication of MARSEC Levels with U.S. flag vessels
operating internationally in this guidance and intend to coordinate
these types of communications with MARAD.
Two commenters suggested web-based information sharing methods. One
commenter recommended a proprietary, secure, web-based information
portal for vessels, port facilities, and other transportation/supply
chain participants to report and record required security information,
security documents, and security checks in complying with Coast
[[Page 60458]]
Guard and IMO requirements. One commenter suggested that the Coast
Guard include information to coordinate and provide access to
regulatory compliance tools on a website. The commenter also suggested
that the preamble accompanying the final rules should have well-named
headings to assist the regulated community in locating information,
including language explaining the applicability of SOLAS and including
a list of contracting governments.
We intend to be flexible in the implementation of communication
reporting methods to be used by vessel and facility owners or
operators, and we are working on a website to provide security
information to the regulated community. We encourage owners or
operators to implement a system that best allows them to meet the
reporting and recordkeeping requirements of their approved security
plan. Additionally, the Coast Guard has provided headings throughout
this preamble, based on the subparts of these security rules, to assist
the public in locating information. SOLAS applicability is clearly
defined in SOLAS and IMO maintains a list of contracting governments,
which can be found on IMO's website (http://www.imo.org).
Twenty commenters made suggestions regarding reporting to the
National Response Center (NRC) under Sec. 101.305. Five commenters did
not support notification to the NRC for all breaches of security. Two
commenters stated that because the scope of the term ``transportation
security incident'' and the meaning of the terms ``may result'' and
``breach of security'' are not clear, the regulated community is at
risk of both over-reporting and under-reporting suspicious activity.
Three commenters also suggested that the Coast Guard make a distinction
between suspicious activities and an actual transportation security
incident. Four commenters stated that it is not clear what the NRC
would do with the information about suspicious incidents or how such a
notification would sufficiently improve facility security in concert
with other reporting processes for suspicious activity or security
incidents. Eight commenters suggested that notifying the NRC ``without
delay'' will not provide for the quickest response and suggested that
owners or operators be allowed to: (1) Activate the security plan; (2)
notify local law enforcement; (3) notify the local COTP; (4) use VHF
channel 16 to notify the local area; or (5) notify the NRC ``as soon as
practical.''
The Coast Guard provided a distinction between suspicious
activities and a transportation security incident in part 101. A
``transportation security incident'' is defined in Sec. 101.105, as
``a security incident resulting in a significant loss of life,
environmental damage, transportation system disruption, or economic
disruption in a particular area.'' As stated in Sec. 101.305(a), a
``suspicious activity'' is an activity that may result in a
transportation security incident. The purpose of requiring vessel and
facility owners or operators to report suspicious activities or
breaches of security ``without delay'' to the NRC is to enable the
Coast Guard to identify patterns of this type of activity on a national
scale and consult with other Federal agencies to confirm if the
activity is a coordinated threat to our nation. The NRC will also relay
to the COTP, and as appropriate port stakeholders, vessels, and
facilities, reports of suspicious activities, breaches of security, and
information concerning security-related patterns and trends. Because it
is imperative to identify nationwide threat patterns, we did not amend
the reporting requirements for suspicious activities or breaches of
security. In the case of a transportation security incident, the
notification goes, without delay, to the COTP or cognizant District
Commander for OCS facilities, because of the need to assess impacts to
the port area and to implement the AMS Plan, as appropriate.
Subpart D--Control Measures for Security
This subpart concerns control and compliance measures, including
enforcement, MARSEC Directives, and penalties.
Seventeen commenters urged the Coast Guard to fully recognize the
need for consistency in the application and enforcement of security-
related regulations and in the plan approval process across several
COTP zones.
We do recognize the need for consistency in the application and
enforcement of the regulations. Therefore, the Coast Guard will
continue to develop guidance for COTPs to consistently implement and
enforce the security regulations.
Two commenters stated that the ``entire issue of the authority to
issue a MARSEC Directive'' needed clarification. In addition, the
commenters noted that in Sec. 101.405(a)(1), the Commandant may
delegate the authority to issue MARSEC Directives and indicated that
this authority should remain with the Commandant.
MARSEC Directives are necessary as a mechanism to provide specific
instruction to achieve the performance standards required by these
regulations and 46 U.S.C. Chapter 701 but that should not be open to
the general public. As such, the MARSEC Directives will be labeled as
sensitive security information because they will contain information
that, if disclosed, could be used to exploit security systems and
measures. MARSEC Directives will be issued under an extension of the
Coast Guard's existing COTP authorities regarding maritime security,
found in 33 U.S.C. 1226 and 50 U.S.C. 191. In part, the implementing
regulations for 50 U.S.C. 191, found at 33 CFR 6.14-1 and promulgated
by Executive Order 10277, contemplate action by the Commandant that is
national in scope. Specifically, these regulations authorize the
Commandant to prescribe such conditions and restrictions deemed
necessary under existing circumstances for the security of certain
facilities or public and commercial structures and vessels.
Additionally, 43 U.S.C. 1333(d) authorizes the Coast Guard to establish
certain requirements for OCS facilities. Moreover, MARSEC Directives
are a necessary and integral part of carrying out the Coast Guard's
authorities in 46 U.S.C. Chapter 701. The Commandant, at this time,
intends to retain the authority to issue all MARSEC Directives.
Forty-three commenters requested clarification on issuance and
receipt of MARSEC Directives. Several suggested that the Coast Guard:
allow companies to submit a national ``security sensitive information
form,'' rather than notifying each COTP that companies have a ``need to
know'' the security sensitive information contained in MARSEC
Directives; have MSOs make Directives from all other MSOs available,
which will allow them to have ``1-stop shop'' service; and, develop a
secure website where individuals with sensitive security information
authorization could access directives from all COTP zones. Many stated
that owners and operators should not be required to comply with MARSEC
Directives if they cannot or are not allowed to access the information
in the Directive when that information is sensitive security
information. Some were concerned that owners and operators would not
know if they had a ``need to know'' the information in a MARSEC
Directive under Sec. 101.405(a)(2). Several comments asked for
clarification of who will be granted access to applicable MARSEC
Directives. One commenter requested a standardized process for applying
for ``need to know'' status. One commenter argued that proof of a
``need to know'' undermines the purpose of
[[Page 60459]]
communicating MARSEC Directives. One commenter said there should be one
U.S. agency responsible for disseminating non-classified security
information to shippers who do not have security clearances. Some
commenters asked if vessel agents would be able to obtain copies of a
MARSEC Directive on behalf of the vessel owner or operator. Most stated
that the current process for communicating MARSEC Directives is
cumbersome and suggested the best practice to inform foreign vessels
entering waters under the jurisdiction of the U.S. would be to notify
each at the time they file their 96-hour Notice of Arrival.
We recognize that the MARSEC Directive provision in Sec. 101.405
establishes a challenging process for distributing directives to the
regulated community. To ensure nationwide consistency, MARSEC
Directives are issued at the Commandant level and, therefore, will
allow each MSO to serve as a ``1-stop shop'' for MARSEC Directives.
When owners, operators, or appointed agents of an owner or operator are
notified of a MARSEC Directive, information will be included indicating
those that have a ``need to know.'' To verify that an owner or operator
has the ``need to know'' the content of a MARSEC Directive, MSOs have
several tools available to them, including a database of vessels and
facilities and their owner and operator information. In addition, an
MSO can determine if a Company Security Officer, Vessel Security
Officer, or Facility Security Officer has a ``need to know'' if an
approved Vessel Security Plan or Facility Security Plan is presented to
them. Once a person has provided enough information for the MSO to
verify that person's ``need to know'' and status as a regulated entity,
the MSO will provide the MARSEC Directive. The ``need to know''
designation is required to protect sensitive security information from
being exploited. We also recognize that further guidance should be
provided to ensure communication expectations are clearly outlined and
intend to update the guidance in NVIC 9-02 (Guidelines for Port
Security Committees, and Port Security Plans Required for U.S. Ports)
to address distribution of MARSEC Directives.
One commenter asserted that there needs to be a means for industry
and stakeholders to provide input or feedback both before and after the
MARSEC Directive becomes effective, considering their knowledge of what
will or will not work in an effective shipboard security program.
The regulations, in Sec. 101.405, currently limit the authority to
issue MARSEC Directives to the Commandant or his/her designee; however,
we intend to consult other Federal agencies having an interest in the
subject matter prior to issuing MARSEC Directives. When appropriate and
as time permits, we intend to further consult with the affected
industry. Section 101.405(d) also provides for an owner or operator to
propose equivalent security measures in the event that they are unable
to comply with MARSEC Directives.
Two commenters anticipated that MARSEC Directives would be
prescriptive and that the Coast Guard should grant alternatives and
equivalencies under these Directives. One commenter asked whether a
recipient of a MARSEC Directive can maintain equivalent security
measures for the duration of the directive, which could be open-ended,
or if the recipient would have a certain amount of time to specifically
comply with the MARSEC Directive.
We agree that there should be opportunities for owners and
operators to implement alternatives or equivalent security measures to
those prescribed in a MARSEC Directive. We provided these opportunities
in Sec. 101.405, which governs Sec. 104.145 (MARSEC Directives), to
allow equivalent security measures to be submitted to the Coast Guard
in lieu of the specific measures required in a MARSEC Directive.
Equivalencies approved by the Coast Guard under a specific MARSEC
Directive will be in effect for the duration of that Directive.
Two commenters stated that our regulations suggest that information
designated as sensitive security information is exempt from the Freedom
of Information Act (FOIA). One commenter suggested that all
documentation submitted under this rule be done pursuant to the
Homeland Security Act of 2002, to afford a more legally definite
protection against disclosure.
``Sensitive security information'' is a designation mandated by
regulations promulgated by TSA and may be found in 49 CFR part 1520.
These regulations state that information designated as sensitive
security information may not be shared with the general public. FOIA
exempts from its mandatory release provisions those items that other
laws forbid from public release. Thus, security assessments, security
assessment reports, and security plans, which should be designated as
sensitive security information, are all exempt from release under FOIA.
Three commenters stated that Sec. 101.405(a)(2) refers to a
``covered person'' as a term defined in 49 CFR 1520 related to
sensitive security information. However, upon review of those
regulations, they did not find a definition of ``covered person'' in
those regulations.
We agree that the terminology in Sec. 101.405(a)(2) is confusing.
Therefore, we are clarifying Sec. 101.405(a)(2) by amending the phrase
``require owners or operators to prove that they have a `need to know'
the information in the MARSEC Directive and that they are a `covered
person' '' to read ``require the owner or operator to prove that they
are a person required by 49 CFR 1520.5(a) to restrict disclosure of and
access to sensitive security information, and that under 49 CFR
1520.5(b), they have a need to know sensitive security information.''
One commenter suggested that we amend Sec. 101.405 and change the
words ``may'' and ``should'' to read ``will'' and ``shall.''
We do not believe the recommended editorial changes add significant
value or clarity.
We received three comments on Recognized Security Organizations
(RSO). One commenter believed that any question of ``underperformance''
on the part of an RSO should be taken up with the flag state that has
made the designation and should not, in the first instance, be
sufficient justification for the application of control measures on a
vessel that has been certified by the RSO in question. Another
commenter recommended that the Coast Guard maximize national
consistency and transparency with regard to the factors that are
evaluated in the targeting matrix. One commenter supported the Coast
Guard's plan to use Port State Control to ensure that Vessel Security
Assessments, Plans, and International Ship Security Certificates
(ISSCs) approved by designated RSOs comply with the requirements of
SOLAS and the ISPS Code.
In conducting Port State Control, the Coast Guard will consider the
``underperformance'' of an RSO. However, a vessel's or foreign port
facility's history of compliance will also be important factors in
determining what actions are deemed appropriate by the Coast Guard to
ensure that maritime security is preserved.
Two commenters stated that in its control and compliance measures,
the Coast Guard should clarify its legal authority to establish a
security zone beyond its territorial sea.
One basis for the Coast Guard to establish security zones in the
EEZ is pursuant to the Ports and Waterways Safety Act, 33 U.S.C. 1221
et seq. For
[[Page 60460]]
example, consistent with customary international law, 33 U.S.C. 1226
provides the Coast Guard with authority to carry out or require
measures, including the establishment of safety and security zones, to
prevent or respond to an act of terrorism against a vessel or public or
commercial structure that is located within the marine environment. 33
U.S.C. 1222 defines ``marine environment'' broadly to include the
waters and fishery resources of any area over which the U.S. asserts
exclusive fishery management authority. The U.S. asserts exclusive
fishery management authority in the EEZ.
Ten commenters were concerned that the control and compliance
measures section did not address the liability implications of
implementing the provisions required by these regulations and complying
with the directives associated with the MARSEC Levels established by
the Coast Guard. Two commenters were concerned with the liability for
oil spills resulting from a transportation security incident. Two
commenters recommended that the strict liability scheme under OPA 90
not be used for such circumstances. Two commenters believed there is a
need to address liability for undue delay during application of control
measures. One commenter believed there is a need to address Coast Guard
liability in the context of owners or operators acting as government
agents when conducting screenings. One commenter questioned whether the
ship agent, whose bond is often used for Customs clearance for a
vessel, would be liable if a vessel violates control and compliance
issues.
An approved security plan under these security regulations
satisfies the requirements of 46 U.S.C 70103(c)(3)(D). The fact that a
transportation security incident is not deterred does not alone
constitute a failure to comply with these security regulations. Failure
to follow the approved plan, however, is a violation of these
regulations. While we appreciate the points raised concerning potential
liability for terrorist acts and when owners or operators are
conducting screenings, the issue of liability is beyond the scope of
this final rule. No provision of the MTSA addressed liability, either
to expressly limit liability or to address immunity from liability.
Additionally, the MTSA did not address liability within the context of
undue delay. Among other things, determinations of liability require a
fact-laden inquiry on a case-by-case basis and typically require
complex analyses regarding matters such as choice of law, contracts,
and international conventions. Undue delay is a term used in
international conventions and likewise requires fact-laden analysis
that we leave for the courts. We note that OPA 90 provides three
defenses to its liability regime (act of God, act of war, or act or
omission of a third party, as set forth 33 U.S.C. 2703). Whether one of
these defenses will apply to a transportation security incident will
depend on the facts of each case. Concerning the comment regarding
compensation for undue delay of vessels, we note that this is a
principle commonly found in IMO instruments, including other parts of
SOLAS and the International Convention for the Prevention of Pollution
from Ships, 1973, as modified by the Protocol of 1978 relating thereto
(MARPOL 73/78). Therefore, we anticipate that claims for undue delay
under SOLAS Chapter XI-2, regulation 9, will be resolved similar to the
resolution found in these other instruments.
One commenter said that penalties should be applied equally to both
U.S. flag vessels and foreign flag vessels.
We believe that the commenter misunderstood the nature of
authorities granted to port and flag states. The assertion that
penalties are applied unequally to U.S. and foreign flag vessels is
incorrect. Civil penalties authorized by 46 U.S.C. 70117 apply equally
to both U.S. and foreign vessels that do not meet the requirements of
the regulations. Because we can revoke, at any point, ISSCs for Vessel
Security Plans that we approve, we have full discretion in enforcing
the rules on those vessels. For foreign flag vessels whose ISSCs are
issued by its flag administration, we can enforce the regulations by
not allowing the vessel to call at our ports, or we can work with the
country issuing the vessel's ISSC to revoke it. We will enforce the
regulations equally; however, the comment brought to light the need to
clarify Sec. 101.410(b)(8) to include the right of the U.S. to revoke
any security plan we approve, and we have amended the section to
clarify this requirement.
After reviewing Sec. 101.420, we amended paragraph (b) to clarify
that appeals of certain decisions and actions of the District Commander
should be made to the Commandant (G-MOC).
Subpart E--Other Provisions
This subpart concerns Declarations of Security, security assessment
tools, and credentials for personal identification.
Three commenters stated that the Coast Guard should delegate its
authority for reviewing and approving security plans to an RSO, stating
that if the Coast Guard reviews and approves all plans, this will
interfere with other critical Coast Guard missions.
We believe that it is imperative to maritime homeland security to
ensure consistent application of the requirements of parts 101 through
106 and will conduct the reviews and approvals of certain security
plans. We do not intend to delegate authority to an RSO at this time.
Reconsideration and further delegation of plan approvals may be
provided once a stable nationwide foundation for maritime security has
been established. Although the Coast Guard is not delegating plan
approval authority, we have ensured plan review resources will be
sufficient for implementing these regulations while not negatively
affecting Coast Guard missions.
Three commenters asked when the Coast Guard would communicate
standards for U.S. flag vessels and facilities as to the timing and
format of a Declaration of Security. One commenter requested
information about how Declaration of Security requirements will be
communicated to and coordinated with vessels that do not regularly call
U.S. ports and specific facilities.
As specified in Sec. 101.505, the format of a Declaration of
Security is described in SOLAS Chapter XI-2, Regulation 10, and the
ISPS Code. The timing requirements for the Declaration of Security are
specified in Sec. Sec. 104.255 and 105.245. The format for a
Declaration of Security can be found as an appendix to the ISPS Code.
We agree that the format requirement was not clearly included in Sec.
101.505(a) when we called out the incorporation by reference.
Therefore, we have explicitly included a reference to the format in
Sec. 101.505(b).
One commenter asked whether the Declaration of Security requirement
applies to vessel-to-vessel or vessel-to-facility interfaces beyond the
12-mile limit but still in the U.S. EEZ.
Vessel-to-vessel activity in the EEZ is not included in these
regulations, except if one of the vessels is intending to enter a U.S.
port. The regulations do apply to vessels interfacing with OCS
facilities.
We received 15 comments regarding security assessment tools. Eleven
commenters would like the Coast Guard to formally approve a separate
security assessment methodology as one that may be used by a refiner or
petrochemical manufacturer, and also to incorporate it by reference.
The commenters believe that it is a sophisticated and effective
methodology for conducting Facility Security Assessments. One commenter
asked whether an owner or operator who has
[[Page 60461]]
already completed a risk assessment using a risk assessment tool other
than those listed in Sec. 101.510 must conduct a new assessment using
one of those tools. Three commenters asked that the Coast Guard provide
a list of security assessment tools that would satisfy all DHS and
Coast Guard requirements.
The Coast Guard does not intend to approve security assessment
tools or incorporate such tools by reference because we prefer to allow
flexibility for industry to develop their own tools to meet their
specific needs. We have provided a list of examples of security
assessment tools in Sec. 101.510; however, this list is not
exhaustive. We do not require owners or operators to conduct security
assessments using these tools as long as the assessments meet the
requirements of these regulations. To clarify that the list in Sec.
101.510 represents some, but not all, assessment tools available for
facilitating security assessments, we have amended it to include the
word ``may.''
It should be noted that the list in Sec. 101.510 includes a no-
cost, user-friendly, web-based, vulnerability-self-assessment tool
designed by TSA. This tool was developed by TSA in coordination with
other Federal agencies and members of academia and industry as a means
to assist vessel and facility owners and operators in completing the
security assessments mandated by these maritime security regulations.
Any information entered into the tool will not be accessible by TSA or
any other Federal agencies unless the owner or operator formally
submits this information to TSA. TSA, in coordination with the Coast
Guard, is developing guidance that will assist users of the TSA tool.
At this time, TSA does not intend to publish a Notice of Proposed
Rulemaking requiring the use of this tool.
One commenter asked for clarification of the terms ``self
assessments,'' ``security assessments,'' ``risk/threat assessments,''
and ``on-scene surveys.''
Risk/threat assessments and self assessments are not specifically
defined in the regulations, but refer to the general practices of
assessing where a vessel or facility is at risk. The assessments
required in parts 104 through 106 must take into account threats,
consequences, and vulnerabilities; therefore, they are most
appropriately titled ``security assessments.'' This title also aligns
with the ISPS Code. To clarify that Sec. Sec. 101.510 and 105.205
address security assessments required by subchapter H, we have amended
these sections to change the term ``risk'' to the more accurate term
``security.'' ``On-scene surveys'' are explained in the security
assessment requirements of parts 104, 105, and 106. As explained in
Sec. 104.305(b), for example, the purpose of an on-scene survey is to
``verify or collect information'' required to compile background
information and ``consists of an actual survey that examines and
evaluates existing vessel protective measures, procedures, and
operations.'' An on-scene survey is part of a security assessment.
One commenter stated that the temporary interim rule requirement to
institute a photo identification card system for crewmembers is
unreasonable because it will cost over $2,000 and will be obsolete when
the Transportation Worker Identification Credential (TWIC) requirement
is enacted. One commenter stated that some ports are already
establishing credentialing programs of varying complexity and scope and
emphasized the need for the national TWIC program to be implemented as
soon as possible.
The temporary interim rule does not require vessel or facility
owners or operators to have a photo identification card system that is
vessel or facility specific. The personal identification requirements
of Sec. 101.515 are well within the scope of the majority of current
identification systems such as driver's licenses and union cards.
Vessel and facility owners or operators can use any personal
identification that meets the requirements of Sec. 101.515; they do
not have to develop their own card systems. Section 101.515 was meant
to provide a temporary solution to the criteria for personal
identification to facilitate access control until the TWIC criteria
could be implemented. TSA is working closely with other agencies of DHS
(e.g., the Coast Guard), agencies of DOT (e.g., MARAD), and other
government agencies to develop the TWIC and its use to ensure that it
can be a practical personal identification system for the
transportation community.
Two commenters stated that our regulations will require employers
to reissue identification cards when individuals grow beards or
mustaches because the photo will not ``accurately depict the
individual's current facial appearance.''
Facial hair may not necessarily alter the depiction of an
individual on picture identification so much that the individual is no
longer identifiable. If the individual depicted on the identification
has changed his or her appearance to the extent that the individual is
no longer accurately depicted, then a new identification card would be
required.
One commenter suggested that commuter ticket books or badges could
serve as a form of required identification for passengers on board
ferries.
Personal identification remains a requirement in these regulations,
as described in Sec. 101.515, to ensure, if needed, the identification
of any passenger. A ticket book or badge that meets the requirements of
Sec. 101.515 could serve as personal identification. To ease
congestion for ferry passengers, we have included alternatives to
checking personal identification as described in Sec. 104.292. These
alternatives, if used, can expedite access to the ferry while
maintaining adequate security.
After further review, and based on comments from several other
agencies and Coast Guard field units, we have amended Sec. 101.515 by
adding a new provision to clarify that the identification and access
control requirements of this subchapter must not be used to delay or
obstruct authorized law enforcement officials from being granted access
to the vessel, facility, or OCS facility. Authorized law enforcement
officials are those individuals who have the legal authority to go on
the vessel, facility, or OCS facility for purposes of enforcing or
assisting in enforcing any applicable laws. This authority is evident
by the presentation of identification and credentials that meet the
requirements of Sec. 101.515, as well as other factors such as the
uniforms and markings on law enforcement vehicles and vessels. Delaying
or obstructing access to authorized law enforcement officials by
requiring independent verification or validation of their
identification, credential, or purposes for gaining access could
undermine compliance and inspection efforts, be contrary to enhancing
security in some instances, and be contrary to law. Failure or refusal
to permit an authorized law enforcement official presenting proper
identification to enter or board a vessel, facility, or OCS facility
will subject the operator or owner of the vessel, facility, or OCS
facility to the penalties provided in law. In addition, an owner or
operator of a vessel (including the Master), facility, or OCS facility
that reasonably suspects individuals of using false law enforcement
identification or impersonating a law enforcement official to gain
unauthorized access, should report such concerns immediately to the
COTP.
Two commenters stated concerns regarding standards for seafarers'
identification cards and other identifying documents. One commenter
stated that the Coast Guard must ensure
[[Page 60462]]
that foreign and U.S. requirements for seafarers' identification are
consistent. The commenter also stated that the Coast Guard must ensure
consistency among U.S. facilities. One commenter urged the Coast Guard
to provide a comprehensive and clear explanation of whether the U.S.
will be using the new ILO seafarers' identity documents.
We appreciate the commenters' concern regarding standards for
seafarers' identification cards and the intentions of the U.S. with
regard to international seafarers' identity documents, but these
comments are beyond the scope of these rules. We have provided minimum
requirements for determining whether an identification credential may
be accepted in Sec. 101.515. We also discussed, in detail, our
intentions regarding seafarers' identification criteria in the preamble
to the ``Implementation of National Maritime Security Initiatives''
temporary interim rule (68 FR 39264).
One commenter supported making foreign-flag shipowners, operators,
and ship managers responsible for establishing a vetting program of
their newly hired officers and crew, requiring background checks of
their seafarers, and having the Coast Guard audit those firms to ensure
the vetting is done. The commenter stated that having a system for
vetting would eliminate a ``loophole'' that could result in loss of
American lives and property.
We will continue a vigorous Port State Control program that will
now include verifying compliance with SOLAS and the ISPS Code for
foreign-flag SOLAS vessels. We have been working aggressively, both
internationally and nationally, to develop seafarer's identification
requirements that include the vetting of newly hired officers and crew
and that also address background check requirements. Since the
implementation of the International Safety Management Code (ISM Code),
audits and other quality verifications are now standard in the
international maritime community. Therefore, once a seafarer's
identification requirement is established, we expect it will be audited
under the ISM Code, and foreign flag vessels will not require specific
Coast Guard oversight.
One commenter stated that part 102 provisions in the temporary
interim rule should make the seafarers' identification documents that
comply with ILO-185 acceptable as a substitute for or waiver of a visa
for shore leave.
Part 102 has been reserved for the National Maritime Transportation
Security Plan, not seafarers' identification. Section 101.515 addresses
identification. The requirements in Sec. 101.515 are not waivers for a
visa. Visas are a matter of immigration law and are beyond the scope of
these final rules.
Part 102--National Maritime Transportation Security
This part is reserved and concerns the development of the
overarching National Maritime Transportation Security Plan for
sustaining National Maritime Security initiatives.
Procedural
Fourteen commenters addressed the public comment period. One
commenter stated that another comment period will be necessary once
plans are approved. Six commenters said the 30-day comment period was
inadequate and should be lengthened. Five commenters requested a longer
comment period specifically for the AIS temporary interim rule.
We did not extend the comment period due to the need to follow the
MTSA's statutory deadline for issuance of regulations. We acknowledge
that these regulations are being implemented in a short period of time.
In this final rule, we require security measures, assessments, and
plans for those vessels and facilities we have determined may be
involved in a transportation security incident. It is not clear how
further comments will benefit security after plan submission is
complete. We continually review guidance we issue to implement
regulations and welcome feedback on guidance we have developed for
these regulations. Regarding AIS specifically, we will be reopening the
comment period on our previously published notice titled ``Automatic
Identification System; Expansion of Carriage Requirements for U.S.
Waters'' (USCG 2003-14878; July 1, 2003; 68 FR 39369).
Three commenters addressed the public meeting held on July 23,
2003. One commenter asked the Coast Guard to hold an additional public
meeting in the Houston, Texas, area and proposed several dates in July
2003. Two commenters stated that many came to the public meeting
believing that it would be not just a listening session, but also an
opportunity to discuss and clarify the proposed regulations, in
preparation for submitting written comments before the end of the
comment period.
We acknowledge that these regulations are being implemented in a
short period of time. Due to the time constraints of the MTSA, however,
we held only one public meeting on July 23, 2003. Previous public
meetings in January 2002 and in January and February 2003 provided the
public several opportunities to discuss various maritime security
issues with Coast Guard representatives. Because the opportunity to
hear public comments is so important, we set an agenda for the July
2003 meeting that allowed us to hear public comments rather than to
debate the issues further. Additionally, the preambles to the temporary
interim rules clearly stated our position on maritime security, which
did not need further elucidation in a public setting at the expense of
receiving stakeholders' comments.
Additional Changes
After further review of this part, we made several non-substantive
editorial changes, such as adding plurals and fixing noun, verb, and
subject agreements. In addition, the part heading in this part has been
amended to align it with all the part headings within this subchapter.
Incorporation by Reference
The Director of the Federal Register has approved the material in
Sec. 101.115 for incorporation by reference under 5 U.S.C. 552 and 1
CFR part 51. Copies of the material are available from the sources
listed in Sec. 101.115.
This final rule incorporates by reference SOLAS Chapters XI-1 and
XI-2 and the ISPS Code. Specifically, we are incorporating the
amendments adopted on December 12, 2002, to the Annex to SOLAS and the
ISPS Code, also adopted on December 12, 2002. The material is
incorporated for all of subchapter H. The final rule titled ``Automatic
Identification System; Vessel Carriage Requirement'' (USCG-2003-24757),
found elsewhere in today's Federal Register, has its own incorporation
by reference section in 33 CFR 164.03.
Regulatory Assessment
This final rule is a ``significant regulatory action'' under
section 3(f) of Executive Order 12866, Regulatory Planning and Review.
The Office of Management and Budget has reviewed it under that Order.
It requires an assessment of potential costs and benefits under section
6(a)(3) of that Order. It is significant under the regulatory policies
and procedures of the Department of Homeland Security. A summary of
comments on the assessments, our responses, and a summary of the
assessments follow.
We received 11 comments relating to the cost of implementing these
regulations. Nine commenters asked if DHS plans to offer annual grants
to
[[Page 60463]]
assist in covering the costs incurred by the operators to satisfy the
requirements of the rules. Two commenters stated that compliance with
all security requirements should be extended to 2008, or until
sufficient monies are allocated by the Congress to cover cost. One
commenter stated that the regulations should grant enough flexibility
to COTPs to consider a facility's limited resources and cost-
effectiveness ratio of implementation when they review the security
plan for approval. Three commenters asked how these rules recognize and
assist very small ports and small businesses.
We appreciate that the cost of implementing these regulations could
have significant impacts on annual revenues for some vessel or facility
owners and operators. Pursuant to Section 102 of the MTSA, DOT is
required to develop a grant program. DHS is working with DOT on the
grant program. At this point, we do not know if Congress will
appropriate funds to continue this program and allow for grants on a
continuing annual basis. We cannot alter the compliance dates of these
regulations because they are mandated by the MTSA and aligned to meet
the entry into force date of SOLAS Chapter XI and the ISPS Code. We
recognize the difficulty small facilities may have in meeting our
security requirements and, therefore, we have developed flexible
measures and performance-based standards to allow owners or operators
to implement cost-effective security measures. We have made the
requirements as flexible as possible and have analyzed the risk to
ensure that applicability is focused on those vessels and facilities
that may be involved in a transportation security incident.
Two commenters addressed the burdens involved in moving from MARSEC
Level 1 to MARSEC Level 2. One commenter strongly urged the Coast Guard
to be cautious whenever contemplating raising the MARSEC Level because
the commenter claimed that we estimated the cost to the maritime
industry of increasing the MARSEC Level from 1 to 2 will be $31 million
per day. The other commenter expressed doubt that a facility's security
would be substantially increased by hiring local security personnel
``as required'' at MARSEC Level 2.
We agree that each MARSEC Level elevation may have serious economic
impacts on the maritime industry. We make MARSEC Level changes in
conjunction with DHS to ensure the maritime sector has deterrent
measures in place commensurate with the nature of the threat to it and
our nation. The financial burden to the maritime sector is one of many
factors that we consider when balancing security measure requirements
with economic impacts. Furthermore, we disagree with the first
commenter's statement of our cost assessment to the maritime industry
for an increase in MARSEC Level 1 to MARSEC Level 2. In the Cost
Assessment and Initial Regulatory Flexibility Act analyses for the
temporary interim rules, we estimated that the daily cost of elevating
the MARSEC Level from 1 to 2 is $16 million. We also disagree with the
second commenter's inference that hiring local security personnel to
guard a facility is required at MARSEC Level 2. Section 105.255 lists
``assigning additional personnel to guard access points'' as one of the
enhanced security measures that a facility may take at MARSEC Level 2,
but this can be done by reassigning the facility's own staff rather
than by hiring local security personnel; however, it is only one of
several MARSEC Level 2 security enhancements listed in Sec.
105.255(f), which is not an exclusive list.
Three commenters stated that security measures required under
MARSEC Level 3 would pose an unfair economic burden upon an owner or
operator and could create an ``industry'' for additional security
measures.
The security measures required under MARSEC Level 3 are designed to
address the increased threat of a probable or imminent transportation
security incident. At this highest level of threat, the maritime
industry is vulnerable to a transportation security incident and can be
exposed to significant economic losses. Were a maritime transportation
security incident to occur, the nation could experience devastating
losses, including significant loss of life, serious environmental
damage, and severe economic shocks. While we can reasonably expect
MARSEC Level 3 to increase the direct costs to businesses attributable
to increased personnel or modified operations, we believe the indirect
costs to society of the ``ripple effects'' associated with a
transportation security incident would greatly outweigh the direct
costs to the maritime industry. Additionally, we expect this highest
level of threat to occur infrequently.
Five commenters stated that our cost estimates understate the cost
for international ships calling on U.S. ports. Three commenters noted
that the same parameters used to develop the costs for the U.S. SOLAS
vessels should be extrapolated and applied to international ships,
adjusted for the time these ships spend in waters subject to the
jurisdiction of the U.S. One commenter asked us to explain why only 70
foreign flag vessels were included in our analysis of the cost of the
temporary interim rule.
We disagree with the commenters' assertion that our estimate
understates the cost for international ships calling on U.S. ports. We
developed our estimate assuming that foreign flag vessels subject to
SOLAS would be required by their flag state, as signatories to SOLAS,
to implement SOLAS and the ISPS Code. The flag administrations of
foreign flag SOLAS vessels will account, therefore, for the costs of
complying with SOLAS and the ISPS Code. Our analysis accounts for the
costs of the final rule to U.S. flag vessels subject to SOLAS.
Additionally, we estimate costs for the approximately 70 foreign flag
vessels that are not subject to SOLAS that would not need to comply
with either SOLAS or the ISPS Code. These vessels must comply with the
requirements in 33 CFR part 104 if they wish to continue operating in
U.S. ports after July 1, 2004, and we therefore estimate the costs to
these vessels.
One commenter suggested taking into greater account the risk
factors of the facility and vessel as a whole, rather than simply
relying on one factor such as the capacity of a vessel as well as the
cost-benefit of facility security to all of the business entities that
make up a facility.
The Coast Guard considered an extensive list of risk factors when
developing these regulations including, but not limited to, vessel and
facility type, the nature of the commerce in which the entity is
engaged, potential trade routes, accessibility of facilities, gross
tonnage, and passenger capacity. Our Cost Assessments and Regulatory
Flexibility Act Analyses are available in the dockets for both the
temporary interim rules and the final rules, and they account for
companies as whole business entities, not individual vessels or
facilities.
One commenter was concerned that the entire list of ships that are
directly regulated under part 104 have been designated as ``high risk''
for a transportation security incident. The commenter noted that no
account appears to have been taken of the different types of vessels or
specific threats and warnings.
We explained in detail in the temporary interim rule (68 FR 39244-
6) (part 101) how we used the National Risk Assessment Tool (N-RAT) to
determine risks associated with specific
[[Page 60464]]
threat scenarios against various classes of targets within the MTS.
Two commenters questioned the accuracy of the estimated average
fatalities from a transportation security incident for a large
passenger vessel. One commenter reasoned that the ``outstanding''
safety record of the industry in recent history does not substantiate
the estimated average fatalities for an accident and, therefore, puts
into question our estimated average fatality for a transportation
security incident. One commenter urged caution in interpreting figures
between safety and security to determine what is a transportation
security incident.
Our initial estimated number of fatalities on large passenger ships
was based on major maritime accidents over the past century. We noted
that historically, the worst maritime accidents (e.g., Titanic,
Lusitania, Empress of Ireland) produced fatality rates over 50 percent.
However, the commenter is correct in asserting that portions of the
large passenger vessel industry have experienced a significant period
of time with few accident-related fatalities which can be attributed,
in part, to innovations in safety and advances in accident
survivability. Therefore, since the dataset used to compile the
estimated number of fatalities per accident lacked recent events, we
used the lower estimate of 32 percent, which is based on the actual
fatality rate of accidents involving small passenger vessels. We
acknowledge that small passenger vessels would likely use different
safety and survivability measures than large passenger vessels.
However, we disagree that that using the 32 percent for the estimated
average accident-related fatality rate for large passenger vessels is
incorrect--it illustrates a catastrophic failure. The estimated average
fatality rate for a transportation security incident is higher than for
a safety-related accident because a transportation security incident is
perpetrated with the intent to inflict a high casualty rate. Safety
measures, therefore, will have some, but not an equivalent level of
effectiveness during a transportation security incident. We believe
that the average transportation security incident-related fatality
rate, in general for those directly regulated under subchapter H, and
in particular for large passenger vessels, will result in a
``significant loss of life'' and, therefore, be a transportation
security incident.
One commenter asked for clarification on whether the N-RAT results
indicated a lower risk for facilities that do not receive vessels on
international voyages, even if those voyages are by vessels exceeding
100 gross tons and transiting international waters. The commenter also
asked whether Guam and the Northern Marianas Islands are part of the
U.S. and whether a domestic voyage may cross international waters.
The N-RAT indicated that vessels on international voyages may be
involved in a transportation security incident. In Sec. 101.105, the
term ``territory'' includes the Commonwealth o |
