1 July 2003
Source:
http://www.access.gpo.gov/su_docs/aces/fr-cont.html
Six rules and notice on martime security published today:
1. General provisions
2. Area maritime security
3. Vessel security
4. Facility security
5. Outer Continental
Shelf facility security
6. Automatic Identification System;
vessel carriage requirements
7. Automatic Identification
System; carriage requirements expansion for U.S. waters
[Federal Register: July 1, 2003 (Volume 68, Number 126)]
[Rules and Regulations]
[Page 39239-39284]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr01jy03-14]
[[Page 39239]]
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Part II
Department of Homeland Security
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Coast Guard
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33 CFR Parts 101, 102, 103, et al.
46 CFR Parts 2, 31, 71, et al.
National Maritime Security Initiatives; Area Maritime, Vessel,
Facility, and Outer Continental Shelf Security; Automatic
Identification System, Vessel Carriage Requirement; Temporary Interim
Rules Automatic Identification System, Expansion of Carriage
Requirements for U.S. Waters; Notice
[[Page 39240]]
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DEPARTMENT OF HOMELAND SECURITY
Coast Guard
33 CFR Parts 101 and 102
[USCG-2003-14792]
RIN 1625-AA69
Implementation of National Maritime Security Initiatives
AGENCY: Coast Guard, DHS.
ACTION: Temporary interim rule with request for comments and notice of
meeting.
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SUMMARY: The Coast Guard has published a series of six interim rules in
today's Federal Register to promulgate maritime security requirements
mandated by the Maritime Transportation Security Act of 2002. The six
interim rules consist of: Implementation of National Maritime Security
Initiatives; Area Maritime Security; Vessel Security; Facility
Security; Outer Continental Shelf Facility Security; and Automatic
Identification System. In addition to the Automatic Identification
System interim rule, we have issued a separate request for comments for
further expanding the implementation of the Automatic Identification
System. The series of interim rules addresses security assessments and
plans, as well as other security standards, measures, and provisions
that, with the exception of Automatic Identification System, will be
codified in the new subchapter H of Title 33 of the Code of Federal
Regulations.
This interim rule, the Implementation of National Maritime Security
Initiatives, establishes the general regulations for subchapter H. It
does so by providing a comprehensive discussion of industry-related
maritime security requirements and a summary of the cost and benefit
assessments of the entire suite of interim rules. The alignment of
domestic maritime security requirements with the International Ship and
Port Facility Security Code and recent amendments to the International
Convention for the Safety of Life at Sea is also addressed here.
The discussions provided within each of the other five interim
rules are limited to the specific requirements they contain.
DATES: Effective date. This interim rule is effective from July 1, 2003
until November 25, 2003. On July 1, 2003, the Director of the Federal
Register approved the incorporation by reference of certain
publications listed in this rule.
Comments. Comments and related material must reach the Docket
Management Facility on or before July 31, 2003. Comments on collection
of information sent to the Office of Management and Budget (OMB) must
reach OMB on or before July 31, 2003.
Meeting. A public meeting will be held on July 23, 2003, from 9
a.m. to 5 p.m., in Washington, DC.
ADDRESSES: Comments. To ensure that your comments and related material
are not entered more than once in the docket, please submit them by
only one of the following means:
(1) Electronically to the Docket Management System at http://dms.dot.gov
.
(2) By mail to the Docket Management Facility (USCG-2003-14792) at
the U.S. Department of Transportation, room PL-401, 400 Seventh Street
SW., Washington, DC 20590-0001.
(3) By fax to the Docket Management Facility at 202-493-2251.
(4) By delivery to room PL-401 on the Plaza level of the Nassif
Building, 400 Seventh Street SW., Washington, DC, between 9 a.m. and 5
p.m., Monday through Friday, except Federal holidays. The telephone
number is 202-366-9329.
You must also mail comments on collection of information to the
Office of Information and Regulatory Affairs, Office of Management and
Budget, 725 17th Street NW., Washington, DC 20503, Attn: Desk Officer,
U.S. Coast Guard.
Meeting. A public meeting will be held on July 23, 2003 in
Washington, DC at the Grand Hyatt Washington, DC, 1000 H Street, NW.,
Washington, DC 20001.
Availability. You may inspect the material incorporated by
reference at room 2110, U.S. Coast Guard Headquarters, 2100 Second
Street SW., Washington, DC 20593-0001 between 8 a.m. and 4 p.m., Monday
through Friday, except Federal holidays. The telephone number is 202-
267-0257. 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 rule,
call Commander Suzanne Englebert (G-M-1), U.S. Coast Guard by telephone
202-267-1103, toll-free telephone 1-800-842-8740 ext. 7-1103, or by
electronic mail msregs@comdt.uscg.mil. If you have questions on viewing
or submitting material to the docket, call Dorothy Beard, Chief,
Dockets, Department of Transportation, telephone 202-366-5149.
SUPPLEMENTARY INFORMATION: Due to the short timeframe given to
implement these National Maritime Transportation Security initiatives,
as directed by the Maritime Transportation Security Act (MTSA) of 2002
(MTSA, Public Law 107-295, 116 Stat. 2064), and to ensure all comments
are in the public venue for these important rulemakings, we are not
accepting comments containing protected information for these interim
rules. We request you submit comments, as explained in the Request for
Comments section below, and discuss your concerns or support in a
manner that is not security sensitive. We also request that you not
submit proprietary information as part of your comment.
The Docket Management Facility maintains the public docket for this
rulemaking. Comments and material received from the public, as well as
documents mentioned in this preamble as being available in the docket,
will be available for inspection or copying at room PL-401 on the Plaza
level of the Nassif Building, 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
.
Electronic forms of all comments received into any of our dockets
can be searched by the name of the individual submitting the comment
(or signing the comment, if submitted on behalf of an association,
business, labor unit, etc.) and is open to the public without
restriction. You may also review the Department of Transportation's
complete Privacy Act Statement published in the Federal Register on
April 11, 2000 (65 FR 19477-78), or you may visit http://dms.dot.gov/.
Request for Comments
We encourage you to participate in this rulemaking by submitting
comments and related material. Your comments will be considered for the
final rule we plan to issue before November 25, 2003, to replace this
interim rule. If you choose to comment on this rule, please include
your name and address, identify the specific docket number for this
interim rule (USCG-2003-14792), indicate the specific heading of this
document to which each comment applies, and give the reason for each
comment. If you have comments on another rule please submit those
comments in a separate letter to the docket for that rulemaking.
You may submit your public comments and material electronically, by
fax, by delivery, or by mail to the Docket Management Facility at the
address under ADDRESSES. Please submit
[[Page 39241]]
your public comments and material by only one means. If you submit them
by mail or delivery, submit them in an unbound format, no larger than
8\1/2\ by 11 inches, suitable for copying and electronic filing. If you
submit them by mail and would like to know that they reached the
Facility, please enclose a stamped, self-addressed postcard or
envelope. We will consider all comments and material received during
the comment period.
Public Meetings
We will hold a public meeting on July 23, 2003, in Washington, DC
at the Grand Hyatt Hotel, at the address listed under ADDRESSES. The
meeting will be from 9 a.m. to 5 p.m. to discuss all of the maritime
security interim rules, and the Automatic Identification System (AIS)
interim rule, found in today's Federal Register. In addition, you may
submit a request for other public meetings to the Docket Management
Facility at the address under ADDRESSES explaining why another one
would be beneficial. If we determine that other meetings would aid this
rulemaking, we will hold them at a time and place announced by a later
notice in the Federal Register.
Regulatory Information
We did not publish a notice of proposed rulemaking (NPRM) for this
rulemaking and are making this rule effective upon publication. Section
102(d)(1) of the MTSA requires the publication of an interim rule as
soon as practicable without regard to the provisions of chapter 5 of
title 5, U.S. Code (Administrative Procedure Act). The MTSA also states
that any interim rule issued to implement its provisions shall expire
on November 25, 2003, unless it has been superseded by a final
regulation. The Coast Guard finds that harmonization of U.S.
regulations with maritime security measures adopted by the
International Maritime Organization (IMO) in December 2002, and the
need to institute measures for the protection of U.S. maritime security
as soon as practicable, furnish good cause for this interim rule to
take effect immediately under both the Administrative Procedure Act and
section 808 of the Congressional Review Act.
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, and local agencies; owners and operators of vessels and
marine facilities; and others with interests in our nation's Marine
Transportation System--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
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
International Convention for Safety of Life at Sea, 1974, (SOLAS) and
the new 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.
Prior to each intersessional meeting, the Coast Guard held public
meetings as well as 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 having security responsibilities.
In January 2002, the Coast Guard also held a 2-day 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 threat levels with a means to communicate threats to
the Marine Transportation System.
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 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) whose implementation 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 previously developed regulations
for security of large passenger vessels that are contained in 33 CFR
parts 120 and 128. Complementary guidance can be found in 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,
needed to assess the current state of port and vessel security and
their vulnerabilities. As mentioned previously, to accomplish this, the
Coast Guard conducted a public workshop January 28-30, 2002, to assess
existing Marine Transportation System 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), 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.
On November 25, 2002, President George W. Bush signed into effect
Public Law 107-295, MTSA, 2002, which had been proposed to Congress the
year before as the Port and Maritime Security Act (S. 1214). The MTSA
requires the Secretary to issue an interim rule, as soon as
practicable, as a temporary regulation to implement the Port Security
section of the Act. The MTSA expressly waives the requirements of the
Administrative Procedure Act, including notice and comment, for this
purpose.
Nevertheless, the Coast Guard, in coordination with other agencies
of the Department of Homeland Security
[[Page 39242]]
(DHS) (e.g., the Transportation Security Administration (TSA)) and the
Department of Transportation (e.g., the Maritime Administration
(MARAD)), held seven public meetings in areas of high maritime interest
to engage the public in discussions about the impact of its maritime
security requirements. Prior to issuing this interim rule, the Coast
Guard wanted to receive preliminary comments that helped to structure
the rulemakings published today. The seven public meetings were
announced in a ``notice of meeting; request for comment'' document that
was published in the Federal Register on December 20, 2002 (67 FR
78742). The comprehensive notice of meeting requested comments
addressing 40 issues as well as comments on the concepts presented in
the ISPS Code and the MTSA. Comments made during the public meetings
and those submitted to the public docket are available in the public
docket (USCG-2002-14069) for review at the locations under ADDRESSES. A
discussion of these comments is contained in this preamble under the
Discussion of Comments to Maritime Security Public Meetings. The Coast
Guard plans to publish a final rule by November 2003. This date is
critical to meeting the timeline set in the MTSA for finalizing these
security requirements. It is just as critical in order to uniformly
implement the ISPS Code and SOLAS amendments.
To comply with the mandates of the MTSA, the Coast Guard is
implementing portions of section 102 of the MTSA (46 U.S.C. sections
70102, 70103b through 70103d, 70104, 70114, and 70117) through this and
a series of five other interim rules published elsewhere in today's
Federal Register. Within this common preamble, we will generally
discuss each of the six interim rules. This common preamble will also
discuss the National Maritime Transportation Security Plan, found in 46
U.S.C. 70103a, transportation security cards, found in 46 U.S.C. 70105,
and foreign port assessments, found in 46 U.S.C. 70108, as they relate
to the requirements established in the six interim rules.
Organization
As already stated, we have segmented the maritime security
regulations into six separate interim rules. The entire series of
rulemakings establishes a new subchapter H, containing six new parts,
in Title 33 of the Code of Federal Regulations. For the ease of reading
and comprehension, the rulemakings were written to highlight each
segment of the maritime community and structured based on the
organization of the regulations rather than in one single interim rule.
A brief description of each of the six interim rules follows:
1. Implementation of National Maritime Security Initiatives. This
general discussion includes the introduction of the new subchapter H
into Title 33 of the Code of Federal Regulations. It also discusses the
General Provisions within part 101 of that subchapter, and reserves
part 102 for the National Maritime Security plan and Advisory Committee
requirements. This discussion covers the overall methodology we used to
determine the appropriate application of security measures in
accordance with the MTSA. A summary of the costs and benefits
associated with implementing security requirements used for subchapter
H are presented as well as a discussion of the security-related benefit
for AIS. The requirements set out in this interim rule include the
definitions for the entire subchapter and the provisions that pertain
to all parts. It is strongly recommended that this interim rule be read
prior to consulting one or more of the other specific parts or the AIS
interim rule, which are published elsewhere in today's Federal
Register, to ensure terms and applicability issues are understood.
Additionally, the preamble to this interim rule includes a discussion
of the comments made during the public meetings held on Maritime
Security in January and February of 2003 and the comments submitted to
the docket [USCG-2002-14069] that were received by February 28, 2003.
All comments received after February 28, 2003, will be considered prior
to the issuance of the final rules.
2. Area Maritime Security (AMS). The discussion in the preamble of
the ``Area Maritime Security'' (USCG-2003-14733) interim rule found
elsewhere in today's Federal Register relates to the provisions within
part 103 of subchapter H. Discussions about cost and benefit assessment
for the Area Maritime Security regulations are also found in the Area
Maritime Security preamble.
3. Vessel Security. The discussion in the preamble of the ``Vessel
Security'' (USCG-2003-14749) interim rule found elsewhere in today's
Federal Register relates to the provisions within part 104, titled
Vessel Security, of subchapter H. It also includes a discussion of the
additional parts of 33 CFR and 46 CFR amended or revised by the Vessel
Security interim rule. Discussions about cost and benefit assessments
for the vessel security regulations are found in the preamble of the
interim rule ``Vessel Security.''. Consistent with customary
international law, the requirements in part 104 do not apply to vessels
engaged in innocent passage through the territorial sea of the U.S. or
in transit passage through the navigable waters of the U.S. that form
part of an international strait.
4. Facility Security. The discussion in the preamble of the
``Facility Security'' (USCG-2003-14732) interim rule found elsewhere in
today's Federal Register relates to the provisions within part 105,
titled Facility Security, of subchapter H. Discussions about cost and
benefit assessments for the facility security regulations are found in
the preamble of the interim rule ``Facility Security.''
5. Outer Continental Shelf (OCS) Facility Security. The discussion
in the preamble of the ``Outer Continental Shelf Facility Security''
(USCG-2003-14759) interim rule found elsewhere in today's Federal
Register relates to the provisions within part 106, titled ``Outer
Continental Shelf Facility Security,'' of subchapter H. Discussions
about cost and benefit assessments for the OCS facility security
regulations are found in the preamble of the interim rule ``Outer
Continental Shelf Facility Security.''
6. Automatic Identification Systems (AIS). The discussion in the
preamble of the ``Automatic Identification System; Vessel Carriage
Requirement'' (USCG-2003-14757) interim rule found elsewhere in today's
Federal Register relates to the provisions within 33 CFR parts 26, 161,
164, and 165. These requirements relate to the fitting of AIS on
certain vessels as mandated in 46 U.S.C. 70114 and MTSA section 102(e).
Discussions about cost and benefit assessments for the AIS regulations
with respect to both safety and security are found in the preamble of
the interim rule ``Automatic Identification System; Vessel Carriage
Requirement.''
Coordination With the SOLAS Requirements
For each interim rule, the requirements of the MTSA Section 102
align, where appropriate, with the security requirements embodied in
the SOLAS amendments and the ISPS Code; however, the MTSA has broader
application that includes domestic vessels and facilities. Thus, where
appropriate, the Coast Guard intends to implement the MTSA through the
requirements in the SOLAS amendments and the ISPS Code, parts A and B,
for all vessels and facilities that are currently required to meet
SOLAS, as well as those vessels on international voyages that fall
below the mandated 500 gross tonnage, ITC (International Convention on
Tonnage Measurement of Ships, 1969 (ITC)) threshold and facilities that
are at risk of being
[[Page 39243]]
involved in a transportation security incident. Further discussion on
this risk and how we developed and assessed it for the maritime
community is presented in the Applicability of National Maritime
Security Initiatives discussion in this preamble.
In aligning the MTSA Section 102 requirements with the SOLAS
amendments and the ISPS Code security requirements, we consider that
the implementation of these requirements is best done through mandating
compliance with the SOLAS amendments and the ISPS Code. The Coast Guard
considers ISPS Code, part B, an essential element to ensure full and
effective compliance with the intent of the MTSA. Foreign flag vessels
entering the U.S. will be expected to carry valid International Ship
Security Certificates (ISSC) and have the security plans fully
implemented. The relevant provisions in ISPS Code, part B, will be
taken into account by Port State Control Officers to assess if the
security plan is fully implemented as required by the interim rules
found elsewhere in today's Federal Register. The flag administration
may also choose to provide a document or endorsement to the ISSC to
verify that the security plan was based upon full compliance with the
relevant provisions of ISPS Code, part B, to assist Coast Guard Port
State Control Officers. We intend to implement strong Port State
Control measures to aggressively enforce these regulations that will
include tracking the performance of all owners, operators, flag
administrations, recognized security organizations, charterers, and
port facilities. Noncompliance will subject the vessel to a range of
control and compliance measures, which could include denial of entry
into port or significant delay. We will strictly enforce compliance
with SOLAS and the ISPS Code for foreign SOLAS vessels, including
assessing the risks posed by such vessels and any control measures that
may be required when they call on foreign port facilities that do not
comply with SOLAS and the ISPS Code, and we will similarly ensure that
other vessels or port facilities covered by these regulations meet the
requirements of this subchapter. A vessel's or port facility's history
of compliance, or lack thereof, or security incidents involving a
vessel or port facility, will be important factors in determining what
actions are deemed appropriate by Coast Guard Port State Control
Officers to ensure that maritime security is preserved. As mentioned,
the performance of the owner, operator, flag administration, recognized
security organization, charterer, or port facility related to maritime
security will also be some of the other factors that will be considered
for the enforcement of maritime security in the U.S.
In addition to tracking performance, the Coast Guard's Port State
Control program will also closely scrutinize an Administration's
designation of recognized security organizations to ensure that those
organizations fully meet the competencies and qualifications in the
ISPS Code. Vessels with International Ship Security Certificates issued
by recognized security organizations that are not properly designated,
or that do not meet the required competencies and qualifications, will
be subject to strict control measures, including possible expulsion
from port and denial of entry into the United States. Therefore, it is
imperative that Administrations carefully evaluate an organization
through a rational process, adhering to the stringent criteria in the
ISPS Code and any future standards that are developed by IMO, before
designating the organization as a recognized security organization and
delegating certain security functions to it.
The requirements for the AIS interim rule found elsewhere in
today's Federal Register align with the recent amendments to SOLAS
Chapter V, Regulation 19 that were adopted during the IMO Diplomatic
Conference in December 2002 and the MTSA (specifically, MTSA sec.
102(e) and 46 U.S.C. 70114).
Impact on Existing Domestic Requirements
Many current requirements for security exist that are impacted by
the interim rules published in today's Federal Register. 33 CFR part
120, Security of Vessels, and 33 CFR part 128, Security of Passenger
Terminals, currently exist but apply only to certain cruise ships. We
do not intend to revise 33 CFR parts 120 or 128 in the Vessel Security
interim rule found elsewhere in today's Federal Register. However, in
the future, this part may be revised or entirely deleted. This will
consolidate the security requirements for all vessels in subchapter H.
If this change to 33 CFR part 120 is made, foreign vessels that are
required to comply with part 120 will be required to meet the
requirements of part 104 including Sec. 104.295 Additional
requirements--Cruise Ships and passenger terminals that are required to
comply with part 128 will be required to meet part 105.
The requirements in the interim rules also refer to and amend
certain parts of 46 CFR and 49 CFR to ensure certificate of inspection
requirements and other sections pertaining to facilities will include
the new subchapter H requirements.
Notice of arrival requirements found in 33 CFR 160 have also been
amended in the Vessel Security interim rule found elsewhere in today's
Federal Register to ensure security-related information is provided to
appropriate authorities prior to a vessel's entry into port.
Additionally, the Captain of the Port (COTP) authorities within 33 CFR
have been revised to ensure security-related elements and authorities
are clearly highlighted.
Applicability of National Maritime Security Initiatives
As required in section 102 of the MTSA (46 U.S.C. section 70102a),
the Coast Guard conducted an assessment of vessel types and U.S.
facilities on or adjacent to the waters subject to the jurisdiction of
the U.S. to identify those vessel types and U.S. facilities that pose a
high risk of being involved in a transportation security incident. The
MTSA defines a transportation security incident as a security incident
resulting in a significant loss of life, environmental damage, a
disruption to the transportation system, or economic disruption in a
particular area.
Method of Assessment
In October 2001, the U.S. Coast Guard urgently needed to prioritize
vessels and facilities based on the vulnerabilities to potential
security threats and the consequences of potential incidents. We used a
systematic, scenario-based process known as Risk-Based Decision Making
(RBDM) to meet those needs. RBDM ensured a comprehensive evaluation by
considering the relative risks of various target and attack mode
combinations or scenarios. This provided a more realistic estimation of
risk (and more efficient risk management activities) than a simple
``worst-case outcome'' assessment where only the worst possible
consequences were considered.
In addition, the RBDM approach was based on the recommendations
from the U.S. General Accounting Office (GAO). Managing risk is one of
the best tools to complete a security assessment and to determine
appropriate security measures (GAO-01-822). The GAO recommended a
comprehensive security threat and risk assessment process (GAO-01-
1158T).
Another GAO report, Homeland Security: A Risk Management Approach
Can Guide Preparedness Efforts, illustrated a scenario-based, risk
[[Page 39244]]
management approach as used within the private sector. This GAO report
explained how a company successfully created a security plan using a
risk-based approach. Like the company described in the GAO report, the
Coast Guard's approach to commercial maritime security featured the
systematic development and consideration of potential scenarios of
concern. The generation of scenarios ensured completeness of the risk-
based method (GAO/NSIAD-98-74).
Principles of Risk Management
Risk management principles acknowledge that while risk generally
cannot be eliminated, it can be reduced. Risk reduction is done by
adjusting operations to reduce consequences, threats, or vulnerability
of a security threat (consequences, threats and vulnerability will be
discussed later in this document). Generally, it is easier to reduce
vulnerabilities by adding security measures than to reduce consequences
or threats (although reductions in all three are possible).
Risk assessments provide visibility into those elements of the risk
equation that exert the greatest influence on risk. Those elements
become the priorities in the risk management approach. The goal for
maritime security is to ensure that if the level of threat increases,
either the consequences or vulnerabilities decrease enough to offset
that increase.
Process of Developing Maritime Security Risk Assessments
First, to look at risk from the port level, local experts in the
area of commercial maritime safety and security met with a team of
professional risk consultants. Together we developed the Port Security
Risk Assessment Tool (PS-RAT). The PS-RAT was provided to local
authorities to evaluate vessels, facilities and infrastructure within
their areas of responsibility for a variety of threat scenarios. The
approach used for the PS-RAT was as previously described and advocated
by GAO, where risk was assessed in terms of threat, vulnerability and
consequence. The PS-RAT was initially implemented Coast Guard wide on
16 November 2001 and the individual COTPs completed baseline risk
assessments on vessels, facilities, and infrastructure within their
area of responsibility. Nationwide, the local assessors evaluated
nearly 5200 scenarios on more than 2000 unique assets and
infrastructure elements.
Second, at the area level, regional Coast Guard and other maritime
experts in the area of commercial maritime safety and security compiled
and analyzed the local level PS-RAT results to gain a better
understanding of the security risks affecting their Coast Guard
Districts and Areas. This assessment identified some recurring
scenarios and common issues that needed to be addressed beyond the
local level. It also helped clarify the need for another tool with a
wider perspective that would be capable of evaluating risks at the
national level.
Because of the local, relative nature of these assessments the PS-
RAT did not support the national comparisons that were necessary for
strategic planning. To accomplish strategic planning at the national
level, a third team of Coast Guard subject matter and risk experts
produced the National Maritime Homeland Security Risk Assessment Tool.
Referred to in maritime circles as the National Risk Assessment Tool
(N-RAT), the N-RAT provided a foundation for risk-based prioritization
and subsequent regulatory assessment closely aligned with the guidance
on conducting security risk assessments recommended by the GAO (GAO/
NSIAD-98-74, GAO-02-150T, GAO-03-616T). The results of the N-RAT
provided a national evaluation of the relative security risk facing the
Marine Transportation System of the U.S. The experts compared the
results from the national assessment with the previously performed
local assessments (PS-RAT) to ensure that consistent assumptions were
made and that comparable measures of risk were produced.
What Was Assessed
The Coast Guard used the N-RAT to determine risks associated with
specific threat scenarios against various classes of targets within the
Marine Transportation System. The targets considered included vessels,
facilities, waterways, and marine-related transportation systems. This
allowed the Coast Guard to systematically consider all segments of the
commercial maritime community to evaluate their potential for being
involved in a transportation security incident.
Maritime Security Incident Scenarios
The scenarios considered each element within the maritime community
with respect to three general exposures: Susceptibility as a target;
Use as a means of transferring or enabling the transfer of terrorists
or terrorism-related materials; and Use of vessel or facility as a
weapon.
The three above-mentioned general threat scenarios integrate
multiple circumstances considered as specific attack modes. That is,
there are subordinate scenarios under each general scenario. For
example in the basic threat scenario of ``susceptibility as a target'',
a ``boat loaded with explosives exploding alongside a docked tank
vessel'' is one attack mode while ``tank vessel being commandeered and
intentionally damaged'' is another.
The N-RAT included over 50 target classes and 12 specific attack
modes. This resulted in a matrix consisting of over 600 possible
target/attack scenarios. Next, the 600 scenarios were screened for
credibility by the expert panel. The credibility of a threat was based
on the plausibility of an enemy actually carrying out the attack mode.
For example, the ``use as a means of transferring or enabling the
transfer of terrorists or terrorism-related materials;'' scenarios were
screened out as ``not credible attack modes'' for military targets due
to the inherent security measures in place. However, external attacks
on these same targets were considered to be credible and were evaluated
by the team. To balance comprehensiveness with efficiency, all
scenarios were considered but only those scenarios deemed credible by
the expert panel were further evaluated for risk.
Each credible threat scenario was evaluated by the panel of experts
to determine the risk associated with a given attack against a specific
target. The evaluation is based on a model showing the possible
outcomes from any potential transfer or attack mode. Using previously
cited GAO guidance in this area; the N-RAT risk was modeled as a
function of the threat, vulnerability and consequences associated with
each target/attack scenario. Each element is explained in the following
sections. We realize that the terms used to identify each element may
have recognized meanings in other contexts. In order to reduce
confusion, we have included, as the first sentence in each element's
discussion, the meaning associated with these terms for the purposes of
the N-RAT.
Threat
The term ``threat'' is a measure of the likelihood of an attack. It
represents the perceived probability of an attack based on maritime
domain awareness and the existence of intelligence.
Within the N-RAT, five threat levels were identified. The threat
magnitude was described, and scoring benchmarks were provided for each
level. Each benchmark of threat intensity was assigned a probability of
occurrence for use in risk calculations. For each scenario, the experts
estimated the threat associated with an attack after considering the
intent of hostile groups, prior security incidents, the capability
[[Page 39245]]
to carry out the attack mode and any intelligence that indicated an
organization was planning an attack. Lacking specific, credible
intelligence that would allow an increase or reduction in the threat
score for a specific attack mode, this was fixed at a constant value
consistent with the Maritime Security (MARSEC) Levels previously
established by the Coast Guard. The baseline assumption was that
terrorist cells were operating with unknown targets and methods of
attack. Changes in MARSEC Levels or specific, credible intelligence
would trigger an appropriate modification in threat.
Vulnerability
The term ``vulnerability'' measures the conditional probability of
success given that a threat scenario occurs. It evaluates the adequacy
and effectiveness of safeguards (both existing and proposed).
For the N-RAT, an attack was estimated as likely to succeed only
if: the target was available, the target was physically accessible to
be attacked, organic security associated with the target would not
detect and defeat the intended attack, and the mode of attack would be
capable of producing the intended consequences by overcoming the
inherent safeguards designed into the system.
If all of the above mentioned barriers fail to halt the intended
attack, then the attack would result in one or more outcomes. Outcomes
ranged from relatively minor to catastrophic levels. The above
mentioned four elements described the targets' overall vulnerability
and were scored by the expert team.
The availability of a target measured its presence and
predictability as it relates to an enemy's ability to plan and conduct
an attack. The accessibility of a target, evaluated its physical
deterrence (i.e., location, perimeter fencing, etc.) against different
attack modes. It related to physical and geographic barriers that deter
the threat without organic security. Organic security of a target
assessed the ability of the target's security measures to deter the
attack. It included security plans, communication capabilities, guard
forces, intrusion detection systems, and ability of outside law
enforcement to prevent the attack. Target hardness was a measure of the
ability of a target to withstand attack. It is based on the complexity
of target design and material construction characteristics.
Each vulnerability type was scored over five levels of magnitude
(1-5--lowest to highest). Again, scoring benchmarks were used to help
ensure consistency. Each level of magnitude in every vulnerability
category was assigned a probability of allowing an attack mode to
proceed. The probability for each vulnerability category was factored,
along with the threat probability, in risk calculations to determine
the probability term of the risk equation. The individual probabilities
were then multiplied together to derive the overall probability
assessment for the target/attack scenario under consideration.
Consequence
The term ``consequence'' is the estimation of adverse effect from
the target/attack scenario and is an important consideration in risk
evaluation and security planning. Six categories of effects were
considered in evaluating the consequence of an attack: death/injury,
economic, environmental, national defense, symbolic effect, and
secondary (follow-on) national security threat. Inherent in this
consideration was the criticality of the target. For each effect
category, five levels of severity were described, and scoring
benchmarks are provided. Unlike vulnerability, each severity level was
assigned a common consequence value for use in risk calculations. For
example, the most severe economic impact consequences were considered
equivalent to the most severe death/injury and symbolic effect
consequences. The selected level for each factor was then converted to
a representative value of potential loss for the consequence factor.
These consequence scores were then summed across all appropriate
categories to develop the consequence values for the target/attack
scenario combination.
The estimated probability and consequence values were multiplied to
calculate the overall risk for each target/attack scenario. This is
essentially an estimate of the expected losses should a specific
target/attack scenario occur.
Assessment Results
The following graph is a demonstration of the type of the relative-
risk results the N-RAT gave. Specific results, including scores, have
been designated as sensitive security information (SSI). This graph
simply displays the relationship between some types/classes of vessels
and facilities or port infrastructure based on their relative risk. In
each line, the parenthetical (I) and (D) stands for ``international''
or ``domestic,'' respectively.
BILLING CODE 4910-15-U
[[Page 39246]]
[GRAPHIC] [TIFF OMITTED] TR01JY03.000
BILLING CODE 4910-15-C
Below is a summary of the application requirements for these
interim rules based on the N-RAT results:
Applicability Evaluation for Ports
The N-RAT results focused on individual vessel types and facilities
subject to the authority of the Coast Guard. Scenarios were also
developed that involved port transportation infrastructure that is
vital to the port communities such as bridges, channel openings, and
tunnels. This evaluation led to the conclusion that many structures
within a port are also at risk of a transportation security incident
and therefore should be covered by security measures. Therefore, we
determined it would be appropriate to include specific guidance in part
103 to have the Area Maritime Security (AMS) Plan address these types
of transportation infrastructure as well as those smaller vessels or
facilities that fall below the transportation security incident
threshold. This application for the AMS ensures all maritime concerns
are assessed and security is systematically evaluated nationwide.
Applicability Evaluation for Vessels
The N-RAT results indicate the following vessel types are at a high
risk of a transportation security incident and therefore are required
to meet specific security measures as laid out in part 104 of
subchapter H:
[sbull] All ships, both cargo and passenger, that are subject to
SOLAS;
[sbull] All vessels greater than 100 gross register tons that are
subject to 46 CFR subchapter I (this includes vessels on the Great
Lakes);
[sbull] All barges subject to 46 CFR subchapter I engaged on an
international voyage;
[sbull] All domestic passenger vessels subject to 46 CFR
subchapters H and K;
[sbull] All barges, regardless of route, which are subject to 46
CFR subchapter D and O;
[sbull] All tank ships, regardless of route, which are subject to
46 CFR subchapters D and O;
[sbull] All Mobile Offshore Drilling Units (MODUs) subject to 46
CFR subchapter I-A;
[sbull] All vessels subject to 46 CFR subchapter L;
[sbull] All towing vessels greater than 8 meters in registered
length that are engaged in towing barges which are subject to 46 CFR
subchapter D & O; and
[sbull] All towing vessels greater than 8 meters in registered
length that are
[[Page 39247]]
engaged in towing barges that are subject to 46 CFR subchapter I on an
international voyage.
The N-RAT results indicate that the following vessel types are at a
lower risk of a transportation security incident and are therefore
subject to parts 101 through 103 of subchapter H:
[sbull] Uninspected vessels, unless otherwise noted;
[sbull] Domestic small passenger vessels certificated under 46 CFR
subchapter T;
[sbull] Barges subject to 46 CFR subchapter I engaged exclusively
on domestic voyages;
[sbull] Towing vessels engaged in towing 46 CFR subchapter I barges
not on international voyages;
[sbull] Vessels certificated under 46 CFR subchapter I engaged
exclusively on domestic voyages;
[sbull] Fleeting tugs or harbor tugs; and
[sbull] Other vessels not specifically addressed in part 104 (as an
example, recreational vessels).
The inclusion of towing vessels (traditionally included with other
uninspected vessels) was done because these vessels interface with and
are responsible for the movement of barges that carry higher
consequence cargoes, such as Certain Dangerous Cargoes (CDCs). When
scored on the N-RAT, the high consequence of the barge cargoes
significantly adds to the risk of a transportation security incident
for the towing vessel.
The N-RAT was not able to provide the sensitivity needed to assess
certain elements of the definition of a transportation security
incident. For example, the transportation security incident calls for a
determination of what the term ``significant loss of life'' should be
or where the threshold for an ``economic disruption in a particular
area'' should be placed. In order to determine these elements of a
transportation security incident, the Coast Guard used the N-RAT model
itself as a guide along with a comparison with other transportation
modes. We also used the preliminary intermodal comparison work of the
other agencies of the DHS (e.g., TSA).
First, using the N-RAT, we assessed what consequences or
combination of consequences would result given a vessel, facility, or
port structure that had a high baseline vulnerability. Recalling from
the previous N-RAT explanation that the consequence assessment portion
of the N-RAT evaluation was based on six categories and five levels (as
shown in Table 2), we looked at the numerical results of a scenario
when given some vulnerability benefits assumed for implemented AMS
Plans, and other general security measures in place for a port.
Table 2.--Consequence
--------------------------------------------------------------------------------------------------------------------------------------------------------
Economic Environmental National Symbolic Follow-on HLS
Consequence category--Level Death/injury impact impact defense effect threat
--------------------------------------------------------------------------------------------------------------------------------------------------------
Catastrophic
---------------------------------------------------------
High
---------------------------------------------------------
Medium
---------------------------------------------------------
Moderate
---------------------------------------------------------
Low
--------------------------------------------------------------------------------------------------------------------------------------------------------
The results showed that a score of at least one consequence factor
at the ``Catastrophic'' level or a combination of two ``High'' scores
could not be offset by the vulnerability reduction achieved by the AMS
Plan or general port security efforts. The risk to these types of
vessels, facilities, or port structures would need further
vulnerability reduction to get out of the potentially ``Catastrophic''
or ``High'' consequence arena. This then, is the threshold that the
Coast Guard determined could be considered a transportation security
incident.
To further determine the thresholds of a transportation security
incident with respect to the ``loss for life'' category, the Coast
Guard compared the potential loss of life between various
transportation modes and various operations. To look at the ``economic
disruption'' category of transportation security incident as well as
its other elements, we looked at damage and casualty data to determine
if comparisons between modes could be used to formulate thresholds
based on vessel size.
Passenger Vessel Threshold Determination
To compare potential loss of life between transportation modes, we
examined probable fatalities given an accident to the air, rail, or
maritime mode. The first step in this process included a comparison of
the current regulatory and operational thresholds that currently exist
in each industry.
In aviation, regulations cover aircraft carrying 20 or more
passengers as a commuter airline (14 CFR part 125). Most commercial
aircraft are larger than this smaller commuter, with 69 percent of the
U.S. market dominated by an aircraft with a capacity of 189 passengers.
In rail, we considered transit service (light, heavy, or commuter)
and long-haul rail travel. Light rail can carry up to 150 passengers in
each car of the train. Heavy rail cars typically carry 100 passengers,
though they can carry twice that many during periods of peak traffic.
Commuter rail cars carry an average of 125 passengers, with peak
capacities of over 200 passengers per car for certain seating
configurations. Inter-city rail passenger coaches typically carry about
80 passengers per car depending on the configuration. The average train
length is reported to be 6 to 8 cars.
In the maritime passenger trade, we have small passenger vessels,
commuter ferries of all sizes, large passenger vessels, and cruise
ships. The average passenger capacity on small passenger vessels is 49.
The average capacity for commuter ferries is 587 and for large
passenger vessels the average capacity is 1154 passengers.
Looking at casualty statistics for these three modes and different
passenger operations, we estimated the probable fatalities given a
successful transportation security incident occurred. We assume that,
in general, a transportation security incident would have a higher
fatality rate than that of an accident because of the hostile
motivation behind perpetrators' actions deliberately produce more
severe consequences. For aircraft, the more severe airline crashes were
used to estimate the transportation security incident fatality rate.
The hostile intent
[[Page 39248]]
may also render certain safety measures less effective in a
transportation security incident compared to their demonstrated
performance in an accident. We also considered average occupancy rates
for each mode into the calculations to estimate a relative potential
loss of life comparison. The table below compares the average estimated
fatality rates across modes for various passenger-carrying operations.
Table 3.--Comparison of Estimated Fatalities by Mode and Type of Incident
--------------------------------------------------------------------------------------------------------------------------------------------------------
Representative Estimated Estimated Fatality average rate \1\ (in Estimated average fatalities
passenger average average percent) -------------------------------
Mode capacity occupancy occupancy --------------------------------
(potential (percent of (number of Accident TSI
fatalities) capacity) passengers) Accident TSI
--------------------------------------------------------------------------------------------------------------------------------------------------------
Air (14 CFR 135) Commuter Plane......... 80 78 62 74 80 46 50
Air (14 CFR 121) Large Pass. Plane...... 189 75 142 74 80 105 113
Rail (single commuter car).............. 180 66 119 5 25 6 30
Rail (6 car commuter Train)............. 1080 66 713 5 25 36 178
Rail (8 car long-haul Pass. Train)...... 640 66 422 5 25 21 106
Maritime \2\............................
(Subchapter H) Large Pass. Vessels (100 GT).........................
Maritime \2\ (Ferries--Sub. H & K)...... 587 72 423 32 46 135 194
Maritime \2\ (Subchapter T) Small Pass. 49 72 35 32 46 11 16
Vessels (<150 pax.)....................
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ Accident data from the National Transportation Safety Board and USCG.
\2\ Typical passenger capacity for USCG Documented vessels.
Table 3 shows that per plane/rail-car/vessel, the estimated loss of
life from a transportation security incident is estimated to range from
a low of 16 per a typical small passenger vessel to a high of 382 for
large passenger vessels. The Coast Guard determined that based on the
above comparison and the results of the N-RAT vulnerability scores for
vessels that result in two ``High'' consequence scores, that a
threshold of 150 passengers is appropriate. We also looked at the N-RAT
vulnerability condition for a ``Catastrophic'' consequence score and
determined that added measures were appropriate for vessels carrying
2,000 or more passengers. These additional security measure
requirements for larger passenger vessels and the terminals that serve
them are justified to offset their elevated risk from a transportation
security incident.
Gross Tonnage Threshold Determination
The N-RAT was also limited in its sensitivity to identify the
vessel gross tonnage that sufficiently pointed to a determination of
the terms ``economic disruption in a particular area, transportation
system disruption, or environmental damage'' which are required
elements of the transportation security incident definition.
Small, dry-cargo vessels (gross tonnage less than 500) were
identified by the N-RAT results as vessels of concern. These vessels,
regulated under 46 CFR subchapter I and in the gross tonnage range of
15 to 500, are not required to comply with SOLAS and thus are exempt
from ISPS Code requirements. We believe this creates a significant
security vulnerability that must be considered and addressed at an
appropriate level. To establish the appropriate threshold, we evaluated
the risk for a transportation security incident posed by smaller
vessels (gross tonnage <500) to determine where a reasonable threshold
should be drawn.
The N-RAT results showed a significantly greater risk for vessels
of gross tonnage above 100 being involved in a transportation security
incident than for smaller vessels. Based on the N-RAT assessment, the
smaller vessels (gross tonnage <100) are unlikely to be involved in a
transportation security incident because of the limited consequences
they are expected to produce due to their limited size and speed. A
review of the domestic freight vessels that are documented with gross
tonnage under 100 reveals that less than 2 percent of these vessels are
capable of causing significant consequences to facilities or other
vessels, and that some of these vessels are already regulated under
this rule due to the nature of the cargo carried. However, because of
their greater dimensions and the trades in which they operate, vessels
with gross tonnage above the 100 threshold do present the potential of
being involved in a transportation security incident. A limited
analysis of potential collision effects leads us to the conclusion that
these vessels may not be able to cause catastrophic personnel
casualties or environmental damage. However, based on our knowledge of
port operations, navigable waterways, and vessel design, construction,
and operations, we believe that a significant risk of a transportation
security incident (one ``Catastrophic'' or two or more ``High''
consequence ratings) exists for vessels with gross tonnage above 100.
This is primarily driven by potential impact on the economy, national
defense, or secondary national security threat from certain scenarios.
Examples of these potential effects exist in Coast Guard accident
reports where incidents documenting the blockage of channels in various
rivers and ports occurred due to vessel casualties. These blockages
resulted in substantial economic impacts as the mobility and commerce
within the port was seriously affected.
As for the difference in the Convention Measurement tonnage and the
Regulatory Measurement tonnage within this analysis, we used the
Regulatory Measurement where
[[Page 39249]]
assigned. There was also an impelling reason to use the Regulatory
Measurement for implementing maritime security measures because there
is a significant body of existing regulations that are constructed
around this measurement system. Therefore, for application, the
Regulatory Measurement tonnage (gross register tons) was primarily used
unless a certain maritime security requirement was solely meant to
reduce risk on vessels that engage in international voyages.
Based on the above, we believe that 100 gross register tons (and
not 15 gross register tons) is a reasonable lower end for applicability
for dry-cargo vessels. We are also regulating those vessels in the
range of 100-500 gross register tons that are not covered by SOLAS and
are therefore exempt from ISPS Code requirements.
AIS Threshold Determination
The applicability thresholds used for the implementation of AIS on
certain vessels is a separate issue, for which we did not use the N-
RAT. The MTSA clearly mandates AIS applicability in 46 U.S.C. 70114 and
the installation dates are included in MTSA sec. 102(e). The thresholds
for vessels: a self-propelled commercial vessel of at least 65 feet in
overall length; or a passenger vessel, carrying more than a number of
passengers for hire determined by the Secretary; or a towing vessel of
more than 26 feet in overall length and 600 horsepower; as well as any
other vessel for which the Secretary decides that an AIS is necessary
for the safe navigation of the vessel, are related to both safety and
security. Thus the thresholds are somewhat lower than those discussed
above for vessels at a high risk of a transportation security incident.
Applicability Evaluation for Facilities
The N-RAT results indicate that the following facilities are at a
high risk of a transportation security incident and therefore are
required to meet specific security measures as laid out in part 105 of
subchapter H:
[sbull] Facilities that handle cargo subject to 33 CFR parts 126,
127, or 154;
[sbull] Facilities that receive vessels certified to carry more
than 150 passengers;
[sbull] Facilities that receive commercial vessels greater than 100
gross register tons on international voyages, including vessels solely
navigating the Great Lakes; and
[sbull] Fleeting facilities/areas for barges carrying cargoes in
bulk, regulated by 46 CFR subchapter D or O or carrying certain
dangerous cargoes.
The N-RAT results indicate that the following facility types are at
a lower risk of a transportation security incident and are therefore
subject to parts 101 through 103 of subchapter H:
[sbull] Facilities adjacent to the navigable water that handle/
store cargo that is hazardous or a pollutant;
[sbull] Facilities that receive only domestic bulk non-hazardous
cargo;
[sbull] Facilities that service a vessel that carries fewer than
150 passengers;
[sbull] Fleeting facilities/areas that service barges subject only
to 46 CFR subchapter I or barges that are certified to be gas-free that
are certificated under subchapter D and O; and
[sbull] Oil and natural gas production, exploration, or development
facilities regulated by 33 CFR part 154 that engage solely in the
exploration, development, or production of oil and natural gas; and do
not meet or exceed the operating conditions in Sec. 106.105 of the
Outer Continental Shelf (OCS) Facilities rulemaking published elsewhere
in today's Federal Register;
[sbull] Facilities supporting the production, exploration, or
development of oil and natural gas regulated by 33 CFR parts 126 or 154
that engage solely in the support of exploration, development, or
production of oil and natural gas; and transport or store quantities of
hazardous materials that do not meet and exceed those specified in 49
CFR 172.800(b)(1)-(6); or stores less than 42,000 gallons of cargo
regulated by 33 CFR part 154;
[sbull] Mobile facilities regulated by 33 CFR part 154;
[sbull] Isolated facilities that receive materials regulated by 33
CFR parts 126 or 154 by vessels due to the lack of road access to the
facilities and do not distribute the material through secondary marine
transfers; and
[sbull] Other facilities not specifically addressed in part 105.
As mentioned in the above Applicability for Vessels discussion, the
150-passenger threshold will be reviewed for the maritime community
when other agencies of DHS (e.g., TSA) have completed their assessment
of the national transportation system as a whole and has provided
guidance on intermodal thresholds that may refine the ``significant
loss of life'' determination for the implementation of the MTSA. We are
concerned about the gap that may be created by requiring only
facilities that service larger passenger vessels to have plans, when
some other facilities that service only smaller vessels may, at any
point in time, have an aggregation of more than 150 passengers on a
facility or pier (such as commuters at small passenger vessel
terminals). In addition, small passenger vessels that are not required
by subchapter H to have vessel security plans may share the same
facility as a larger passenger vessel for which a plan is required.
This distinction may put the facility at a higher risk from the small
passenger vessel and therefore is a potential ``weak link'' in the
security system. Even though the Vessel Security interim rule found
elsewhere in today's Federal Register does not directly regulate these
types of small passenger vessels, the facility security plan must
nevertheless address the risks presented by accommodating multiple
vessel types, even if some of those vessels may not have individual
security plans. Additionally, the AMS assessment may indicate that the
COTP should impose security requirements on small passenger vessels
through the use of orders or security zones to complement those
measures being implemented by the facility. The AMS Plan will reflect
what additional necessary measures may be imposed by the COTP on
vessels and facilities not subject to parts 104 to 106 of subchapter H,
and other activities within the port area, at the three Maritime
Security (MARSEC) Levels.
It is important to note the N-RAT focused on the potential for
certain vessels and facilities to be involved in a marine-related
incident, and its results reflect that relative risk. The Coast Guard
took this approach because of our longstanding familiarity with vessel
and waterfront facilities, because it was a logical follow-on to the
PS-RAT efforts of the COTPs, and because it allowed us to meet the
initial mandates of the MTSA to promulgate these interim rules as soon
as practicable. However, the MTSA is broader and permits direct
regulation of any vessel and facility that may be involved in a
transportation security incident, as that term is broadly defined. This
could include those facilities and infrastructure not traditionally
regulated by the Coast Guard, such as facilities that do not have
accommodations for vessels but are nonetheless on or adjacent to waters
subject to the jurisdiction of the U.S. The Coast Guard is currently
working with other agencies of DHS (e.g., TSA) and other federal
agencies to assess the security requirements of these other vessels and
facilities located on or adjacent to waters subject to the jurisdiction
of the U.S. Therefore, the interim rules published today, especially
the applicability sections of parts 104, 105, and 106, do not exhaust
the types of vessels and facilities that may be regulated under the
MTSA. We
[[Page 39250]]
may be involved in follow-on regulations to address these adjacent
facilities in the future. In the interim, the AMS Plan will address
these types of facilities and COTPs may require specific facilities
storing dangerous or pollutant cargoes to add security measures
appropriate to their operations and the MARSEC Level.
Applicability Evaluation for Outer Continental Shelf (OCS) Facilities
The N-RAT results indicate that the following OCS facilities are at
a high risk of a transportation security incident and are therefore
subject to part 106 of subchapter H:
[sbull] OCS facilities that produce 100 thousand barrels of oil or
200 million cubic feet of natural gas per day or regularly host more
than 150 personnel on a daily basis (may exceed this number for periods
of time not in excess of 90 days).
The N-RAT results indicate that the following OCS facilities are at
a lower risk of a transportation security incident and are therefore
subject to parts 101 through 103 of subchapter H:
[sbull] Unmanned platforms and lower production level platforms.
The N-RAT was also not able to provide sensitivity to the OCS
facility size or production level that sufficiently pointed to a
determination of the terms ``significant loss of life, economic
disruption in a particular area, transportation system disruption, or
environmental damage'' which are required elements of the
transportation security incident definition. To develop this threshold,
we worked in conjunction with the Minerals Management Service (MMS) to
compare OCS facility production rates and operations throughout the
industry. The 150-person threshold was also used to remain consistent
with the vessel and facility thresholds. Those OCS facilities that do
not fall within the rather narrow parameters of this threshold should
consider security measures. We will continue to work with the MMS to
validate this threshold as the results of the other agencies of DHS
(e.g., TSA) intermodal comparisons are completed. In the interim, the
AMS Plan will address these types of OCS facilities and COTPs may
require specific offshore facilities with unique or higher-risk
operations to add security measures appropriate to their operations and
the MARSEC Level.
Assessment Limitations
While the N-RAT is a very useful tool and offers an excellent way
to collect and organize expert judgments about security risk issues, it
is not perfect. One limitation is that the quality of the results
depends directly on the knowledge and expertise of the expert
assessors. Inexperienced personnel with limited perspectives will
produce results with limited value. It is essential that seasoned
evaluators with a broad experience base be used to ensure full
consideration of multiple aspects of the issues. The Coast Guard
assessment teams included mid-career and senior professionals with
experience in ship design, construction and operation, hazardous
materials and facility inspections as well as waterways management and
port operations.
Another limitation of the N-RAT is that it looks at risk in a
relative way. The N-RAT is considered a ``relative risk-indexing''
tool, meaning that it is only useful in comparing scenarios evaluated
with the tool. The N-RAT does not provide a measure of absolute risk
that can be compared to other situations not evaluated in this tool.
A third limitation is that the N-RAT is unable to measure all of
the benefits attributable to intelligence or information gathering
initiatives, which are commonly called ``Maritime Domain Awareness
(MDA) initiatives.'' Measures such as AIS increase awareness and may
provide earlier detection or even serve as a deterrent to a
transportation security incident, but the assessment tool is unable to
capture this effect based on the factors evaluated and the sensitivity
of the rating scales. Increased awareness by itself does not decrease
the threat or vulnerability at a measurable level subject to the
sensitivities of the model. Therefore, the expert panel was unable to
account for all of the benefits we believe should be derived from
specific MDA initiatives.
Since the N-RAT results highlight the worst-credible case
scenarios, a fourth limitation is that the listed results are not
sensitive to all scenarios, such as a high profile historically-based
incident. We know that small boats loaded with explosives were used as
weapons to attack the USS COLE and the tank ship LIMBURG. We cannot
discount the possibility of this type of incident in the U.S. or
against U.S. vessels outside of the U.S. It is our belief that the best
means of deterring such an incident, to the maximum extent practical,
is to require certain facilities used in maritime commerce to conduct
an assessment of their vulnerability to being used as a staging area
for terrorist activities. These facilities would then construct a
detailed plan to control access to the facility, permitting the
movement or entrance of only authorized persons and cargoes onto and
through the facility. This plan will enable the facility to have
increased vigilance, awareness and control over those vessels and
persons that are served by the facility. We also believe the
possibility of a ``COLE-like'' incident can be reduced by requiring
vessels that would likely be the target of such an attack to likewise
assess their vulnerability to such an incident and similarly develop a
security plan. This plan would include procedures for security
monitoring and increased security vigilance, including security with
respect to vessel-to-vessel activities. In addition, vessel and
facility plans should include how they would address recreational
vessels approaching that they reasonably suspect may pose a threat to
them. These facility and vessel security requirements will be
complemented by the development of an AMS Plan involving port
stakeholders. This plan will address the security measures to be
implemented for all port activities at different security levels. The
control and movement of vessels, such as small vessels that could be
used as a weapon, will be considered and addressed in the AMS Plan.
These controls would include such measures as the possible restriction
of all small vessel movements, the implementation and through
enforcement of security zones and the coordination of all security
patrols in the port.
Lastly, the threat, vulnerability, and consequence scores each have
discrete values associated with them. Because there were only 5 scores
(1 through 5) for each input variable, the level of resolution (or
``granularity'') of the risk calculations was limited. This was
especially true when assessing the impact of risk reduction initiatives
or actions. In many cases, a new initiative or action may have a
distinct improvement, but not enough to change a score assignment
(e.g., changing the accessibility score from a score of 4 to a score of
3).
Discussion of Comments to Maritime Security Public Meetings
As mentioned, the notice of meeting published on December 30, 2002,
requested comments on requirements that align domestic maritime
security requirements with the ISPS Code and recent SOLAS amendments,
to comply with section 102 (Port Security) of the MTSA, 2002.
General Comments for all public meetings. Several comments and
issues were discussed at all seven public meetings that reflect
general, overarching concerns of the maritime community for
implementing National Maritime Security requirements. These
[[Page 39251]]
common issues are included in the following discussion.
Commenters voiced the desire to ensure we align the maritime
security requirements with other agencies and States that have already
tightened security. We have been working with all federal agencies that
have security or response related functions and in multiple venues to
facilitate the various security initiatives related to homeland
security. The joint team that worked on the interim rules found in
today's Federal Register is just one example of this type of
coordination. Other joint efforts include the ongoing work to implement
the Presidential Decision Directive PDD-63 on critical infrastructure
protection and The National Strategy for The Physical Protection of
Critical Infrastructures and Key Assets. The Department of Homeland
Security (e.g., Information Analysis and Infrastructure Protection) is
leading this critical infrastructure program. We have also worked with
State officials that have implemented maritime security requirements
and have broadened this discussion to include all State level homeland
security representatives to raise the awareness of maritime security
and the importance of the marine elements of the national
transportation system throughout our nation. Further interagency
coordination on maritime security issues will also be established when
the National Maritime Transportation Advisory Committee is in place. We
anticipate that this Committee will assist in ensuring the continued
coordination of all involved in maritime security on a national scope.
On a related issue, commenters requested to know how other cargo-
handling requirements or proposals by other agencies would affect the
maritime industry. Cargo security measures are addressed in 46 U.S.C.
70116, Secure Systems of Transportation, and Section 111, Performance
Standards, of the MTSA. Section 111 has an implementation date of
January 1, 2004. Other agencies of DHS (e.g., TSA and the Bureau of
Customs and Border Protection) are responsible for these sections of
the MTSA and will work with the Coast Guard in implementing them. The
other agencies of DHS (e.g., TSA and the Bureau of Customs and Border
Protection) are actively working toward developing the cargo security
measures called for in these sections. They have assembled an
interagency team to evaluate the proposals for supply chain security
submitted for Operation Safe Commerce (OSC) and hope to have
cooperative agreements signed by summer 2003 to analyze supply chain
security and to prototype procedural and technological solutions to
supply chain security.
The information gleaned from the OSC effort, as well as information
gleaned from other cargo security and productivity initiatives and from
experience in other cargo security programs, will form the foundation
of forthcoming cargo security regulations. We recognize that, although
cargo security will be a component in vessel and facility security
plans, facilities and vessels will not want to create and install cargo
security technologies in advance of these cargo security requirements,
out of a concern that the technologies they create or install will not
meet the requirements. Guidelines will be developed and provided for
acceptable cargo security measures that can be used until the cargo
security requirements are promulgated. These guidelines will address
procedural measures.
Again, related to interagency coordination, some commenters
stressed the need to harmonize any requirements with the Research and
Special Program Administration (RSPA). RSPA published a final rule
amending 49 CFR part 172 in the Federal Register on Tuesday, March 25,
2003, (68 FR 14510). The final rule established new requirements to
enhance the security of hazardous materials transported in commerce.
Like the maritime security interim rules discussed in this rulemaking,
shippers and carriers of certain highly hazardous materials must
develop and implement security plans that address three issues:
personnel security; unauthorized access; and enroute security. In
addition, all shippers and carriers of hazardous materials must assure
that their employee training includes security awareness training and,
for shippers or carriers of certain highly hazardous materials, in
depth employee training for each hazardous material employee. While
RSPA's final rule allows training that is conducted and security plans
that are prepared to meet regulations, standards, protocols, or
guidelines issued by other entities, the final rule comes into effect
before the interim rules for maritime security. Shippers and carriers
must be in compliance with the RSPA final rule by September 26, 2003.
Shippers and carriers that are required to meet the interim rules for
maritime security discussed in this rulemaking will have to submit
security plans no later than December 2003. As a result, shippers and
carriers that must comply with both the RSPA requirements and the
maritime security requirements will need to ensure the September date
is met. In order to minimize duplicative efforts, we recommend those
shippers and carriers develop and implement the training and security
plan components of the maritime security interim rules that also meet
the standards of the revised 49 CFR 172.800 by September 26, 2003 in
order to comply with the RSPA requirements. Because the RSPA
regulations do not require plan review, by completing and implementing
those portions of the maritime security interim rules that fulfill the
RSPA regulations, a shipper or carrier will comply with the RSPA
regulations. In other words, if a Vessel or Facility Security Plan is
completed and implemented but not yet approved by the Coast Guard, if
it contains the elements mandated by the RSPA regulations the shipper
or carrier will comply with RSPA. Once the Vessel or Facility Security
Plan is approved, both requirements will be met.
Finally, the Environmental Protection Agency (EPA) also has
existing regulations for non-transportation-related onshore facilities
and certain offshore facilities to prevent the discharge of oil and to
prepare plans for responding to discharges of oil or substantial
threats of discharges of oil. The Coast Guard and the EPA will continue
to explore the impacts of these maritime security interim rules on
facilities under EPA jurisdiction and will clarify the impacts of the
maritime security regulations, if any, before publishing a final rule.
These maritime security interim rules are not intended to require the
owner or operator of a facility under EPA jurisdiction to amend the
Facility Response Plan (FRP) or Spill Prevention Control and
Countermeasure (SPCC) Plan. We do not intend to require the National
Schedule Coordination Committee to modify the existing schedule for
exercise. Additionally, we do not intend to require the owner or
operator of a facility under EPA jurisdiction to amend the facility's
EPA-approved training program, exercises, or drills or record keeping
of such training, exercises, or drills. The maritime security
regulations for training, exercises, drills, and record keeping in
these interim rules are strictly within the purview of the new
legislative mandate for security and may be combined with existing
training, exercises, or drills, where appropriate.
Commenters requested that we recognize industry-developed standards
that achieve an equivalent level of security to the SOLAS and ISPS Code
requirements. We have been working on
[[Page 39252]]
security-related issues and have discussed or required security
measures on vessels and facilities (including offshore facilities)
since well before the development of the ISPS Code or the MTSA. In this
work, we have reviewed and assisted in the development of many industry
standards for security that implement high security standards and are
effective in preventing security-related incidents. In addition, we
have worked with many States that have successfully developed crime
prevention standards for the maritime community that are substantial
and effective. Recognizing the substantial body of work in various
maritime industry sectors on security, we anticipate recognized
industry-developed standards to provide the backbone for implementing
many of the security measures contained in the maritime security
interim rules found in today's Federal Register. Key to this
recognition will be a comprehensive review of the industry-developed
standard to determine whether it is equivalent to the security
requirements being met by those using the standards found in the
maritime security interim rules in today's Federal Register. It is
imperative that the industry-developed standards be deemed equivalent
in order to ensure that those vessels and facilities that use the
industry-developed standards and have a high likelihood of experiencing
a transportation security incident have adequately reduced their risk
to the benefit of the entire U.S. Marine Transportation System (MTS).
Commenters requested that the requirements be flexible enough to
tailor measures to different industries and be performance based rather
than prescriptive. Fundamental to the requirements for security has
been the concept of a security assessment. This assessment is
specifically linked to security plans and is focused on a vessel,
facility, or port as a unique operation. Thus, the assessment results
drive the security measures implemented to set or increase each
security level and, thus, make each plan unique as well as performance-
based. The enforcement of security measures is always difficult when
dealing with a purely performance-based system, as opposed to a
prescriptive one; however, in this case, it will be clear whether
access control, for example, exists or does not. The requirements
contained in the maritime security interim rules found in today's
Federal Register include clear measures to conduct standard security
assessments and draft standard security plans throughout the maritime
community. This approach will result in security plans which
incorporate specific measures, unique to the operation, but in overall
alignment with the objectives of all plans, to detect and deter a
transportation security incident.
Commenters requested that the requirements be consistent among
ports. We recognized the need for industry to have requirements
tailored to their specific and diverse operations yet be afforded the
consistency of the larger port-wide security measures. This said, no
port has the same critical operations or geographic constraints, which
make mandating the same security measures ineffective. However, we
believe the framework of assessments and plans as laid out in the
maritime security interim rules found in today's Federal Register,
provides the consistency between ports and will be effective. This
approach should ensure industry concerns are addressed within each
COTP's area of responsibility. Each AMS Plan will also be reviewed and
approved at both the District and Area level to assess consistency
across the maritime community and to emphasize coordination across all
borders. Additionally, we have included some flexibility in the AMS
Plan requirements so that some geographic areas can be treated as
systems, such as the Western Rivers, the Great Lakes, or the OCS. This
geographic coordination of security measures to encompass an entire
system will promote effective as well as efficient maritime security
for all.
Commenters raised concern on the restrictions to mariner shore
leave, detention aboard their vessels, and service provider access to
mariners, such as port chaplains, union representatives, etc. This is a
very important issue and it is addressed in the Vessel and Facility
Security interim rules found elsewhere in today's Federal Register. The
interim rules encourage both the vessel and the facility operators to
coordinate shore leave for mariners, as well as procedures for access
through the facility by visitors, including port chaplains and union
representatives.
Commenters raised concern over the high cost of requirements and
disparity between federal funds for the maritime versus the aviation
sectors. We understand that many believe the cost of security is
overwhelming. The requirements in this set of interim rules focus on
those on those vessels and facilities that are at a higher risk of
having a transportation security incident. We have developed flexible
measures to meet the security requirements. The disparity between
funding available between transportation modes is outside the scope of
this rulemaking. There are, however, programs, such as the Maritime
Security Grant Program, which is funded through the Transportation
Security Administration and jointly administered by the Maritime
Administration, Coast Guard and the Transportation Security
Administration. This grant program can provide some funding for owners
and operators regulated under subchapter H. An excellent reference for
this program can be found at https://www.portsecuritygrants.dot.tsa.net
.
Commenters voiced a desire to have the Transportation Security Card
requirements promulgated quickly. As discussed under issue number 37 in
the Specific Comments on the 40 issues listed in the public notice
section below, there are many credentialing efforts in development. 46
U.S.C. 70105, Transportation Security Cards, addresses unescorted
personnel access to secure areas of facilities and vessels. Other
agencies of DHS (e.g., TSA) are responsible for implementing this
section of the MTSA. Other agencies of DHS (e.g., TSA) are developing
the Transportation Worker Identification Credential (TWIC) that will be
a transportation system-wide common credential, used across all modes,
for all U.S. transportation workers requiring unescorted physical and
logical access to secure areas of our transportation system. The goal
is to have one standardized credential that is universally recognized
and accepted across our transportation system and can be used locally
within the current facility infrastructure. We recognize that personnel
access control will be a component in vessel and facility security
plans, and understanding that facilities and vessels will not want to
create and install personnel access control systems in advance of the
TWIC infrastructure. In order to address these competing concerns,
guidelines will be developed jointly by other agencies of DHS (e.g.,
TSA) and the modal administrations, and will provide for acceptable
personnel access control measures that can be used until the TWIC is
available. These guidelines will address procedural measures.
Commenters requested that we provide guidelines on training
requirements for vessel and facility security. The ISPS Code specifies
the designation of a Company Security Officer, Ship Security Officer
and a Port Facility Security Officer and details their required
competencies, duties, and responsibilities. To supplement these
[[Page 39253]]
requirements, the IMO is developing model courses that identify the key
competencies for each of the three security officer positions. The U.S.
and India have been asked by the IMO to develop these model courses by
September 2003.
In addition to the ongoing international training initiatives,
section 109 of the MTSA requires the Secretary of Transportation to
develop standards and curricula to allow for the education, training,
and certification of maritime security personnel. This task has been
delegated to MARAD, which has charged a group of experts at the U.S.
Merchant Marine Academy (USMMA) with developing the training
requirements for the three security officer positions as well as the
requirements for any other personnel with security duties. The USMMA
working group has developed a base-level curriculum for maritime
security education. This curriculum was refined through public outreach
that included an international conference hosted by MARAD at the USMMA
on March 20, 2003.
The ``Conference on Maritime Security Standards and Curricula''
drew 136 delegates from the U.S. and numerous other countries. The
meeting focused on the framework for seven model courses that had been
provided to attendees prior to the conference. The seven model course
frameworks discussed were:
1. ``Vessel Security Officer;''
2. ``Company Security Officer;''
3. ``Facility Security Officer;''
4. ``Maritime Security for Vessel Personnel with Specific Security
Duties;''
5. ``Maritime Security for Facility Personnel with Specific
Security Duties;''
6. ``Maritime Security for Military, Security and Law Enforcement
Personnel;'' and
7. ``Maritime Security Awareness.''
The discussions also included issues related to certification of
personnel and quality control of training courses. A panel consisting
of the USMMA working group members and representatives from the Coast
Guard, TSA and MARAD also responded to questions and comments from
participants as part of the conference forum.
Ongoing interagency collaboration and efforts to harmonize
international and U.S. requirements have led to the expansion of this
project to include the development of three model maritime security
courses for the IMO. In cooperation with the government of India, the
working group prepared and submitted draft model courses for the Ship
Security Officer, the Company Security Officer, and the Port Facility
Security Officer to the IMO by May 30, 2003. Following review by an IMO
validation panel, the finalized courses will be forwarded to the IMO
not later than September 8, 2003.
Therefore, the requirements in the vessel security and facility
security interim rules found elsewhere in today's Federal Register
require the Vessel Security Officer, Company Security Officer and
Facility Security Officer positions to have designated personnel and
company-certified qualifications until other training provisions are
complete. For company-certified qualifications, we anticipate that
owners and operators will use the model courses as guidance. Further
work on training requirements and implementation of the security
measures may indicate a need to require formal training for these
positions, which could be promulgated under a separate rulemaking.
Commenters requested that the process used to determine the
applicability of security requirements and their value be explained. We
have discussed the initial assessment and subsequent application of
these interim rules in the Applicability of National Maritime Security
Initiatives discussion above. Additionally we have discussed the value
of implementing security measures throughout the maritime community in
the Benefit Assessment section of this rule.
Some commenters were concerned about the idea of applying
international standards to domestic trade. In the public notice of
meeting, we included an appendix that had the ISPS Code and the new
security-related SOLAS amendments. We took this approach to provide the
public with an opportunity to comment on a body of work that
substantially represented the international security requirements and
current best practices for maritime security. As stated previously, we
had been working on security-related issues and discussed or required
security measures on vessels and facilities since well before the
development of the ISPS Code or the MTSA. We took these requirements
and discussions further by proposing comprehensive measures for
security in our submission to the MSC76 IMO meeting in May 2002. These
proposals were developed with respect to security as a system, because
fundamental security must be universal--terrorists attack foreign and
domestic targets without bias. The flexibility to tailor security plans
and measures based on a security assessment is a key to ensuring that a
vessel, on either a domestic or non-domestic route, has operational
security sufficient to deter, to the maximum extent practical, a
transportation security incident. The fact that domestic transportation
links are as viable as international avenues for a terrorist attack
makes this systems approach even more important, i.e., foreign and
domestic vessels must have security measures in place on the same
timeframe, making it more difficult to transfer the threat of a
transportation security incident to a ``softer'' target. Finally, the
application of ISPS, part B, to all vessels ensures a consistency of
security measures implemented while in U.S. ports.
Specific Comments on the 40 Issues Listed in the Public Notice
In the notice, we specifically requested response to 40 issues,
helping to shape the regulations published in all six interim rules. A
discussion of the responses to each of the issues raised in the notice
follows.
1. Obligations of Contracting Government with Respect to Security.
The SOLAS amendments (Regulation 3) and ISPS Code (part A, section 4,
and part B, paragraph 4) lay out a series of requirements for
Contracting Governments and Administrations to mandate security levels
that are appropriate for their vessels and ports. In the notice, we
explained our intention to implement these requirements in coordination
with the Homeland Security Advisory System (HSAS) and asked for
comments on how to relay information to the maritime community on
changes in security levels, as well as methods to provide the public a
forum to report suspicious acts.
Many commenters viewed as imperative that the threat and security
level information be provided quickly and by all means available,
including secure Web sites or e-mail. They also felt that the
information should be provided to all components of the maritime
community, including recreational boaters and shore-side personnel,
should be formalized, and should be provided proactively. In this
interim rule, the process for this communication is formalized through
the AMS Plan, which will include all forms of communication available
to the COTP in coordination with the private sector, State, local, and
Federal agencies. Therefore, a standard communication method will be
established across the nation, complemented with regional methods to
ensure wide dissemination of threat information and security
requirements.
[[Page 39254]]
As discussed in the Notice for Meeting, the Coast Pilot and Broadcast
Notice to mariners will remain key communication tools for vessels
underway or coming to the U.S. from foreign ports.
Other commenters suggested that the MARSEC Level should be directly
linked to the HSAS at all levels. This contrasts with the comments of
many others who voiced a concern about changing levels due to the HSAS
system, based on threat information not specifically related to the
maritime community nor a specific region. Therefore, they suggested
adopting a separate security level mechanism or incorporating some
flexibility into the alignment of HSAS to the MARSEC Level. We stated
in our notice of meeting that we were considering a link with the HSAS
levels and were implementing the MARSEC Level system to ensure both
flexibility for the maritime community, as well as to align with the 3-
level international security level system. This remains our intent and
we have coordinated these alignments with DHS. The regulations lay out
further discussion of the MARSEC Levels and their alignment with HSAS
Threat Conditions (see Table 101.205).
Some commenters stressed that coordination with other agencies was
needed, and that two-way communications was important to the security
of the waterfront and its operations, as is the ability to report
incidents that are out of the ordinary. Concern was also noted by some
that the communications procedures should directly inform the Facility
Security Officers, the Company Security Officers, and the Vessel
Security Officers while underway, in lay up, or after hours, since
toll-free numbers do not always work from overseas locations or are
sometimes reported as busy. We have included other means for
communication at the local and national levels in this interim rule to
provide alternative means for providing information on suspicious
activity. We are working to develop advanced information technologies
to interconnect agencies, organizations, vessels, and personnel. The
advanced information technologies will facilitate the rapid
transmission of critical safety and security information both
vertically and horizontally. Additionally, we expect to build a strong
communication process with Company Security Officers, Vessel Security
Officers, and Facility Security Officers at both the national and area
levels once these Officers are designated and the owner or operator
provides their contact information to us.
2. Procedures for Authorizing a Recognized Security Organization
(RSO). The ISPS Code (part A, section 4, and part B, paragraph 4)
allows Contracting Governments to delegate certain security related
duties to a RSO. In order to ensure proper initial implementation of
the MTSA and SOLAS, particularly with the accelerated implementation
timelines, the Coast Guard discussed in the Notice of Meeting its
intent not to delegate authority to an RSO and requested comments on
RSO authorities, qualifications, and competencies (other than those
listed in the ISPS Code, part B, paragraph 4.5).
Some comments indicated that class societies, while possibly
suitable for RSO delegation, should not be considered because of the
aggressive timeline to review assessments and plans. Similarly, others
indicated their strong support for the Coast Guard to retain all
approval authorities, citing that delegation would defeat the purpose
and intent of the MTSA. In contrast, some commenters disagreed, stating
that the Coast Guard did not have adequate resources. They requested
that the Coast Guard delegate its authority to an RSO, establish a
timeline for when we would begin consideration of RSOs, and provide
instructions on how RSOs should request consideration. We have retained
in this regulation the intent to keep the approval of assessments,
plans, and other security measures as a Coast Guard function. While it
is understandable that organizations within the maritime community
would seek to have their security expertise recognized, the Coast Guard
believes it is imperative to maritime and homeland security to ensure
consistent application of the requirements found in the interim rules
and will conduct the required reviews and approvals without delegation,
at this time. A timeline and further delegation discussions may be
provided, once a stable, nationwide foundation for maritime security
has been established.
As for the adequacy of the list of RSO competencies provided in the
ISPS Code, part B, some commenters considered it an adequate list,
while others indicated that there should be additional qualifications,
such as a familiarity with national and local security plans. We
believe this list encompasses the essential qualifications and
competencies of organizations that wish to assist the maritime industry
in the development of their security assessments and plans. The comment
on knowledge of local security plans has merit and should be considered
in addition to the ISPS Code, part B, competencies by those hiring
security personnel.
3. Consideration of Other Organizations Competent in Maritime
Security. In our Notice of Meeting, we discussed the potential need
within the maritime community for assistance with the development of
security assessments and plans from organizations advertising maritime
security competency. We asked for comments on whether we should
establish a standard for these organizations or companies and vet them
against a benchmark, such as the one in the ISPS Code, part B,
paragraph 4.5.
Several commenters requested that we develop standards or at least
an outline of what they should expect from a company that professes
maritime security competency and many also stated that the ISPS Code,
part B, list was sufficient. Some commenters went further to suggest
that we put this standard into guidance rather than regulations or
leave it to the trade organizations to develop, because of concern over
rigid requirements favoring larger companies and, therefore, limiting
the flexibility of owners and operators. Many commenters did not
believe the Coast Guard needed to vet these maritime security
organizations, however, many suggested that examples of acceptable
plans would be helpful to smaller operators. In contrast, other
commenters stated that a list of organizations which meet industry or
trade organization standards should be provided, and some went further
to recommend the Coast Guard certify organizations, thus creating the
basis for a new industry. Finally, some commenters requested that we
develop and mandate industry standards for waterborne security and
armed guards.
In these interim rules, we reference ISPS Code, part B, paragraph
4.5, as a list of competencies all owners and operators should use to
guide their decision on hiring a company to assist with meeting the
regulations. We may provide further guidance on competencies for
maritime security organizations, as necessary, but do not intend to
list organizations, provide standards within the regulations, or
certify organizations. We consider standards and requirements for
waterborne security and armed guards a subset of the above discussion.
While these security measures may be appropriate for some vessels or
facilities at a particular MARSEC Level, they are not necessary for all
situations. Thus,
[[Page 39255]]
we have indicated, in only the vessel and facility security interim
rules found elsewhere in today's Federal Register, that they are among
the additional measures that owners or operators may consider
implementing, specifically at heightened security levels, and COTPs may
impose, when deemed necessary to ensure maritime security in certain
situations. The standards for private armed security guards are a
matter of State and local law, as are the legal parameters for use of
force. There are also differing standards that apply to armed private
waterborne security in some States and local jurisdictions. Even though
the interim rules do not address standards for private security guards
in subchapter H, considering this a matter of State and local law and
private contract between the owners and operators of vessels and
facilities and the security company, we intend to work with State
homeland security representatives to encourage the review of all
standards related to armed personnel and the services that they provide
to the maritime community.
4. Procedures for Accepting Alternatives and Equivalencies. The
Notice of Meeting discussed that the SOLAS amendments to Chapter XI-2,
Regulation 11 and 12 along with ISPS Code, part B, paragraphs 4.26 and
4.27, allow us to permit alternatives and equivalencies to the security
requirements for U.S. flag vessels if they are at least as effective as
the mandates and are reported to IMO. This provision is relevant to
those vessels operating on international voyages and certificated by
the U.S. The issue of industry standards was raised to cover domestic
requirements, and is separate from the alternative and equivalencies
provisions in SOLAS. The Coast Guard indicated its intent in the Notice
of Meeting to make alternative and equivalency determinations at the
national level and requested comment on the provisions of alternatives
and equivalencies, as well as the process to submit a proposal to us
for consideration (suggesting a process similar to 46 CFR 30.15 or
70.15).
Many commenters suggested that alternatives and equivalency
determinations were needed to ensure compliance, yet allow for the
unique international operations within some regions or in specific
industries. Many commenters also supported the idea of a ``master
plan'' for their vessel fleet or facilities that would eliminate some
work and still effectively capture the security measures for the
individual vessels or facilities covered. Some also asked if an appeals
process would be included so a higher authority could reconsider
equivalency and alternative determinations. A few commenters requested
that this provision be delegated to the local level rather than be done
at Coast Guard Headquarters to account for unique regional operations.
Many commenters also stated that the submission process, as it exists
for safety (46 CFR 70.15) or subchapter W, is adequate as long as it is
timely.
We have included the alternatives and equivalency provisions in
this interim rule to provide vessel and facility owners and operators
the flexibility to request them. However, they will only be approved if
they are determined to be equivalent to the security requirements in
subchapter H and 33 CFR parts 120 and 128, if applicable. The
provisions of submission and the appeal process are also included in
the regulations presented in this interim rule. Because the equivalency
and alternative determinations are obligations under SOLAS and the ISPS
Code, the Coast Guard is placing the decision to accept equivalents and
alternatives at the Commandant level, at this time. This will ensure
consistency and retain control over the U.S. flag administration
obligation. As always, State, local and regional expertise will be used
when reviewing alternatives and equivalencies, as appropriate for the
proposals.
5. Procedures for Accepting Industry Standards. In addition to the
equivalencies and alternative provisions discussed above, we discussed
in the Notice of Meeting that, for those vessels that are currently not
required to meet SOLAS, industry standards could be accepted as an
equivalent or alternative. We sought comment on the concept of
accepting industry standards and asked whether an independent audit
could also be used in conjunction with this system. We also requested
comment on the intent to review these standards at the national level
and provide a submission process similar to that found at 46 CFR 50.20-
30.
An overwhelming number of commenters strongly supported this
proposal and voiced endorsements for various industry standards, both
for vessels and facilities, which are either published and in use or
currently under development. Some commenters recommended that industry
standards for assessments already exist that could be determined
equivalent to the assessment requirements proposed in the Notice of
Meeting and should be considered. Many commenters indicated they intend
to submit their standards for approval and will also seek approval for
plans or assessments already conducted to meet State requirements.
Several commenters also stated that an independent audit should not be
required if the vessel is already inspected by the Coast Guard. Many
commenters also requested that the industry standards or alternatives
be approved at the local or regional level rather than at the
Commandant level. Additionally, some commenters expressed the desire to
have the industry standards reflect lower security measures
requirements that would not be equivalent to those discussed in the
Notice of Meeting.
We have considered the acceptance of industry standards to be a key
element of implementing the requirements of the MTSA. The public
meeting response to our questions on this issue indicates that the
industry is willing to tailor security standards to their industries'
needs and work with us to implement them. The issue of equivalency is
fundamental to implementing an effective system of maritime security.
Therefore, equivalency is a requirement for the acceptance of industry
standards in the regulations presented in this interim rule. When a
security assessment is conducted on a vessel or facility operation, the
resultant security measures that can logically mitigate and meet the
security risks are tailored to the situation. Thus, an industry
standard for the small passenger industry will be different from the
industry standard for chemical ships, simply based on the difference in
their respective vulnerabilities and the associated consequence of a
transportation security incident. To accommodate this wide diversity of
industry standards and substantiate their equivalency to the
requirements in subchapter H, the review and approval of industry
standards will remain at the Commandant level. However, we intend to
coordinate review of industry proposals with the local and regional
levels, if appropriate. In addition, standards already developed to
meet State requirements or other industry concerns may be submitted for
an equivalency review and subsequently approved under the requirements
of this section, if found appropriate. In the requirements of this
interim rule, we have titled this industry standard concept,
``Alternative Security Programs,'' because it is a broader term that
implies a program or system that is more inclusive, i.e., an industry
association or a company could submit these requests for consideration.
6. Declaration of Security (DoS). The ISPS Code (part A, section 5)
requires Contracting Governments to determine when a DoS is required
for vessels and facilities conducting vessel-to-port or
[[Page 39256]]
vessel-to-vessel activities. A DoS is a document that establishes an
agreement between a vessel and a facility, or between vessels, on their
security arrangements to ensure their coordination and communication is
clearly set out.
In the notice of meeting, we requested comments addressing
recommendations for those operations or security levels when the DoS
would be appropriate to facilitate coordination of security measures
between a vessel and facility. As requested, we received comments
addressing our question. Comments supported the intent of the
requirements but expressed confusion at when it was needed. In
particular, ferry operators questioned if they would be required to
submit a DoS for every transit. Other commenters suggested that the DoS
only be required at higher MARSEC Levels (2 and 3) for specific
operations and are not appropriate for domestic vessels. Additionally,
commenters suggested that transfers that are brief or involve barges
should not have DoS requirements.
We believe a DoS is a valuable security communication tool for
vessels, facilities and for COTPs. While a DoS is generally a MARSEC
Levels 2 or 3 tool, there are certain operations that benefit from
added coordination between the facility and the vessel. In the AMS
requirements found elsewhere in today's Federal Register, each AMS Plan
will be required to address DoS requirements for certain operations
within the ports, especially related to MARSEC Levels 2 and 3. In
addition, the AMS Plan will be required to include the procedures for
what actions to take when vessels are at a higher MARSEC Level than the
Port and request a DoS or other security measures in order to enter the
Port. A DoS will not be required for all vessels and all facilities in
all operations. In addition to the requirements found in the AMS Plan,
both the Vessel Security and the Facility Security interim rules found
elsewhere in today's Federal Register discuss when and for what
operations a DoS will be required. We have determined that some
operations always require a DoS and therefore vessels engaged in those
operations may need to complete a DoS on a regular basis, due to their
high-risk operations or locations. However, we believe a standing
procedure or agreement can be used to meet this requirement. The COTP
may determine, based on the localized repetitive nature of an
operation, that a standing agreement which lays out the information in
a DoS, can replace the daily use of the DoS.
We also requested comments in our public notice on how long a DoS
should be kept on file (we suggested 2 years) and asked how the format
of a DoS should be promulgated (guidance or regulation). In addition,
the ISPS Code allows flag administrations to give guidance on when
their ships should request a DoS during a port call or when interacting
with other vessels. Many commenters suggested that a 2-year time frame
for record retention was much too long. Many commenters also noted that
they preferred guidance rather than regulation on the format for a DoS.
Based on comments we received and to further align with the ISPS Code
requirements, the Vessel Security requirements found elsewhere in
today's Federal Register include requirements to keep DoS's on file for
the vessel's last 10 port calls. The Facility Security requirements
found elsewhere in today's Federal Register include requirements to
keep DoS's on file for at least 90 days. As for DoS format, the interim
rules mentioned above specify required elements for a DoS to ensure
facility and vessel forms are acceptable for COTP reviews. For U.S.
flag vessels, we intend to provide guidance to Company Security
Officers on when to request a DoS based on vessel operations and world
threat conditions.
7. Security of Information Contained in Port, Vessel and Facility
Security Assessments and Plans. The ISPS Code, part A, sections 9 and
16, and the MTSA (46 U.S.C. section 70101(d)) require documents related
to security, especially security assessments and plans, to be kept in a
manner that is protected from unauthorized access or disclosure. In our
notice of meeting, we asked for comments on whether a classification
for sensitive security material would be useful in the implementation
of National Maritime Security initiatives.
The majority of commenters supported a designation for all
security-related materials to ensure this information is not available
to the general public and some requested a higher security designation
such as what the Defense Department is using. Some other commenters did
not want a security-related designation because they wished to ensure
the Freedom of Information Act remained primary to all information.
Other commenters suggested that individuals should have clearances to
see this material or that the Coast Guard be the only agency allowed to
review the material. In contrast, some State and local government
representatives stated their wish to have access to the material and
wanted us to include provisions for this access. Additionally, some
commenters stated that a federal preemption clause was needed for this
designation to ensure that if material was protected from disclosure at
the federal level, a loophole at the State or regional level did not
compromise its security.
Security-related information has traditionally not been in the
public forum since it inherently puts at risk the very system that is
being protected. Understanding the imperative need to safeguard
maritime security material to ensure its dissemination does not make
the vessel, facility, or port vulnerable to a transportation security
incident, we have included provisions in this interim rule noting this
type of material is to be designated as SSI in accordance with 49 CFR
part 1520. Information designated as SSI is generally exempt under
FOIA, and we believe that State disclosure laws that conflict with 49
CFR part 1520 are preempted by that regulation.
We did not believe that a security designation above SSI was needed
for this material however, we did include provisions in this interim
rule for a COTP to designate a higher level of security if there are
provisions in the AMS Plan that indicate a higher level is appropriate.
Access to the AMS Plan will be limited to those on the Area Maritime
Security (AMS) Committee that have agreed to protect the material in a
manner appropriate to its security sensitivity and have a need to know
the material. Guidance on SSI and its use will be issued to assist AMS
Committee members, consistent with 49 CFR part 1520. For material that
is designated at a level higher than SSI, the COTP will screen AMS
Committee members for appropriate clearances and take precautions
appropriate to the material's sensitivity. Individuals and Federal
agencies outside those with transportation oversight authority will not
be allowed to view plans or assessments of vessels and facilities
unless circumstances provide a need to view it. As stated in the Vessel
Security interim rule found elsewhere in today's Federal Register,
certain portions of each vessel security plan and assessment must be
made accessible to authorities; however, those portions not required to
be disclosed are protected with the SSI designation and need-to-know
criteria. Owners and operators of vessels and facilities may also
request a determination of a higher designation than SSI for their
plans. The Commandant or the COTP, whoever is responsible for reviewing
the security plan, will retain the designation authority. In all cases,
the material, if retained by a Federal agency, must be
[[Page 39257]]
safeguarded to the appropriate designation.
Port Security Provisions
8. Port Security Plans and Committees. The requirements for port
plans stem from the development of the new SOLAS amendments and the
ISPS Code as well as the MTSA (46 U.S.C. sections 70103, 70104 and
70112). The definition of port facilities is broad and covers all
aspects of the interface between a ship and a facility, including
anchorages and other areas typically considered by the U.S. as public
waterways, as well as other structures located under, in, on, or
adjacent to U.S. navigable waters. Thus, in the public meeting notice,
we discussed our intention to invoke the alternative provided in ISPS
Code, part A, section 16.4, and combine facility plans with a port plan
to encompass all waters subject to the jurisdiction of the U.S. The
majority of the SOLAS amendments and ISPS Code requirements would be
applied to U.S. facilities to ensure a seamless ship-to-facility
security interface. However, the port security requirements will be the
overarching instrument for implementing security communications and
ensuring compliance. These port requirements will be developed through
a port area plan (AMS Plan) and the port security committee (AMS
Committee). In our notice, we asked for comments on who should be on
the port committee and how we could ensure participation.
The comments we received on the committee's membership included a
very broad range of suggestions. Some commenters suggested that only
law enforcement entities and relevant government agencies participate.
In contrast, many commenters requested that the committee's membership
be truly inclusive--representing the smallest of recreational boater,
to the largest facility; all types of shore-side service providers,
labor representatives, and the myriad government agencies on all
levels. Many comments stated the COTP should head the committee and a
few comments stated that the COTP and the Port Authority should co-
chair the committee.
Commenters suggested that COTPs could ensure participation in the
committees by widely disseminating notices about committee meetings,
have general public meetings, and hold working meetings to develop
security plans. Some commenters recommended a small executive decision-
making group with a large inclusive group for input. Some commenters
felt there should be Port Security Committees in coastal ports only and
voluntary participation with public meetings. Others added that Port
Security Committees should be limited to port users and those with
security expertise.
Because the AMS Plan is pivotal to the U.S. implementation of the
international security requirements and is also key to our MTSA
mandates, we have included provisions prescribing the development of
AMS Plans, committees, and other port-level security measures in the
``Area Maritime Security'' (USCG-2003-14733) interim rule found
elsewhere in today's Federal Register. This part establishes the AMS
Committee, under the direction of the COTP, and indicates that
membership to the committee is meant for those with certain skills,
port operational knowledge, and should represent all aspects of the
maritime community.
9. Port Security Assessments Requirement. In our notice, we also
discussed Port Security Assessments (PSAs), as discussed in ISPS Code
(part A, section 15, and part B paragraphs 15.1 through 15.16) as well
as the MTSA (46 U.S.C. section 70102). Many assessments of this type
have already been performed in ports and should be a good foundation
for this requirement. Since the assessment will be integral in the
development of the AMS Plan, we requested comments on if the committees
would be able to provide the experience and expertise needed to do a
security assessment and if assessments had already been conducted.
Several commenters stated that they felt that, with the assistance
of the local Coast Guard, there would be adequate expertise within the
port area to conduct a port wide assessment. In contrast a few
commenters stated that the Coast Guard or a third party should conduct
the assessments because the knowledge level within the port is not
sufficient. Other commenters stated they did not think certain ports
even needed to do an assessment because of the port's location. Several
commenters also noted that the Coast Guard, both nationally and
locally, has already conducted port security assessments.
Our COTPs have been working with Port Security Committees and
Harbor Safety Committees successfully for some time. From this positive
and participatory interaction, we strongly believe that the knowledge
and expertise to successfully accomplish an AMS assessment currently
resides in each port, notably within the membership of the current Port
Security Committee. We believe that every port needs to conduct a port
security assessment regardless of its location. It is important to
remember that the current regulations and the international code are
intended to strengthen marine elements of the national transportation
system as well as lay out a baseline for each section of the system to
attain. It is not our intent for ports that have already undertaken
security assessments to have to reinvent the wheel, rather we encourage
AMS Committees to take any assessment that has previously been
conducted and use it as a reference document.
10. Port Security Control of Vessels, Facilities, and Operations.
The requirements for control of vessels are outlined in the SOLAS
amendments, Regulation XI-2/9, and the ISPS Code, part B, paragraphs
4.29 through 4.46. In the notice, we discussed our intention to
implement control measures as detailed in the SOLAS amendments and ISPS
Code requirements. However, these measures are not exhaustive and,
where appropriate, COTPs will exercise authority under 50 U.S.C. 191,
as implemented at 33 CFR part 6, 33 U.S.C. 1226, 33 CFR parts 160 and
165, and other measures consistent with international law, to ensure
maritime security. In addition, we outlined our intent to ask the Port
Security Committee (AMS Committee) to review areas within the port,
such as fleeting areas, regulated navigation areas, anchorages, and
areas near facilities, to assess whether these areas should have
security zones or patrol requirements established at certain security
levels. We asked for comments on the concept of a set of security zones
or requirements set out in this pre-designated fashion with a specific
procedure for triggering its implementation through a broadcast notice
to mariners or security level communication to the maritime community.
We asked if such a pre-designation would assist mariners and if other
possible control measures would be recommended.
Many commenters supported the concept of a pre-designated system of
waterway and facility restrictions and stated it would be advantageous
for planning and preparation. They continued by suggesting that at
times of heightened security, we should use existing maritime
communications procedures as well as any other means to ensure vessels
are advised to hold, or move to designated anchorage outside of port.
Other commenters wanted to ensure that the barge and towing industry
was consulted on any decisions to restrict the waterway. Some
commenters stressed that communication methods of these pre-
designations should include the entire maritime community such as
recreational boaters and shore-side
[[Page 39258]]
interests. A few commenters also suggested that other control measures
would include setting barriers and booms to deter seaward access.
As stated previously, the AMS Plan and the supporting committee is
an integral part of the port security initiative. Measures that
mitigate security risks to the port for each security level will be a
main element of the AMS Plan as discussed in the ``Area Maritime
Security'' (USCG-2003-14733) interim rule found elsewhere in today's
Federal Register. We have outlined in these requirements a broad range
of communication methods intended to include all sections of the port
community and requirements for the AMS Committee to evaluate all
options available to restrict or control activities in each port at
each MARSEC Level. However, the COTP may independently exercise his or
her broad statutory and regulatory authority to implement any measures
deemed necessary to ensure maritime security.
11. Port Security Training and Exercises. In the notice, we
explained that ISPS Code (part A, section 18 and part B, paragraphs
18.1 through 18.6) detail training, drills, and exercise requirements
for port facilities. We requested comments on whether the maritime
community would participate in port-level security exercises and what
type of exercise is most desirable. We also asked for comments on
existing port security training programs. Most commenters stated that
while they would participate in port-level security exercises, a 12 to
18 months frequency was preferred. They also suggested that the COTP
should vary drill schedules to reflect local conditions/threats.
Commenters also suggested that only small portions of the Security Plan
be exercised at a time and recommended that communications be tested
more frequently than other sections of the plan. Some commenters
stressed that combining security exercises with port pollution/disaster
exercise is preferable, and that tabletop exercises or seminars should
be considered in lieu of a full exercise. A few commenters stated that
industry already trains security personnel and others commented that
there should be no requirements for training. Other commenters
recommended self-certified security training at the port-level and some
believed Coast Guard auxiliaries need security training.
We believe that exercises and training are imperative to keeping
security measures and plan requirements current. To ensure that the
entire port community participates, we want to establish exercise
programs that are inclusive and training that is exportable. In the
``Area Maritime Security'' (USCG-2003-14733) interim rule found
elsewhere in today's Federal Register, requirements for exercises and
drills are included. To add flexibility, provisions have been made to
credit tabletop exercises as well as full deployment exercises. We
anticipate that security will be a part of all port-level exercises
such as pollution response or rescue drills. In addition, due to the
nature of most ports, high-profile public events such as marine parades
or festivals will likely mean an actual exercise of the ATMS plan that
meets the intent of the exercise requirements. While these high-profile
public events would require a marine event permit, we will not require
that marine event permits be obtained for port-level training
exercises. Training requirements for port personnel have not been
included in the interim rule. It should be noted however, that the
MARAD is developing education and training guidelines for maritime
security professionals, some of which are intended for port security
personnel. We intend to evaluate these guidelines when developed, and
determine at that time whether further requirements are needed to
ensure the competency of security personnel at the port-level.
Vessel Security Provisions
12. Incorporation by Reference. In the notice of public meeting, we
discussed the concept of accepting national, State, and industry
security standards to meet certain security requirement(s), such as a
vessel security plan that incorporates the use of motion detection
equipment that meets an accepted national standard. We requested that
commenters share known national, State, or industry standards that
could be used as an equivalent to our requirements in the marine
environment and we asked them if they would use such standards, if
available.
Many commenters supported our concept noting the flexibility of
using existing standards, such as the ones prepared by the intrusion
detection and surveillance industries. A few commenters stated that
while they supported using existing standards, they were concerned
about conflicts and incompatibility between current security equipment
and equipment used for shipboard operations, while several others
approved of the flexibility of using equivalent standards and stated
that as long as we approved the use of the standard they would submit
it as an equivalent standard to the requirements. Other commenters
stated that they were against the use of industry standards and feared
the Coast Guard would micro-manage vessel security operations.
Traditionally we incorporate by reference equipment standards we
feel are appropriate to use in the maritime environment to enable
vessel and facility owners and operators the flexibility to use
standards they are familiar with as well as ones that are appropriate
to meet the requirements. In the maritime security regulations for
subchapter H found in today's Federal Register, there are no national,
State, or industry equipment standards incorporated by reference
because specific standards were not identified. However, a section in
this interim rule (part 101) has been reserved for listing equipment
standards for incorporation, if found appropriate in the future.
13. Obligations of the Company. In the public notice we discussed
the concepts in SOLAS amendments (Regulation 4 and 5) and the ISPS Code
(part A, section 6, and part B, paragraphs 6.1 through 6.8) that
obligate the company for certain requirements. We requested comments on
these obligations and whether they were sufficient to address maritime
security. We also asked for comments on how to treat the special
relationship between towing companies and barges.
Many commenters felt that this provision would clarify the
companies' responsibility to the vessel and address any potential
manning issues, while a few comments stated that the requirements for a
company were ``excessive'' or that the ISPS Code did not address the
requirements needed. Many comments stated that an independent audit of
the Vessel Security Plan would be valuable in determining if the
company's obligations and responsibilities were addressed and properly
implemented.
In regards to the relationship between tows and barges, a large
number of comments stated that the towing vessel should be responsible
for the security of the barge while it is under their control. Several
other comments recommended that security at fleeting areas be
regulated.
We support holding the company to security-related obligations that
will ensure companies and the vessels communicate on issues related to
security, and help to ensure that any problems are resolved in an
efficient manner. We believe proper implementation cannot work without
the company and the vessel fulfilling their obligations as stated in
the ISPS code. The company is essential to ensuring that the right
people with the right skills are in the Company Security
[[Page 39259]]
Officer, and Vessel Security Officer positions. A company will not need
to establish new internal guidance to satisfy the requirements if it
already has guidance in another document that meets the requirements of
the ISPS Code.
We reviewed the concept of an independent audit and have addressed
it in the Vessel Security interim rule found in today's Federal
Register. The unique relationship between a towing vessel and its tow
has been considered and requirements for both are included in the
vessel security requirements found elsewhere in today's Federal
Register. Fleeting areas are also addressed in the Facility Security
interim rule found in today's Federal Register.
14. Vessel Security Requirements. In the public notice we discussed
that the SOLAS amendments (Regulation 4) and the ISPS Code, part A,
section 7, require vessels act upon security levels set by Contracting
Governments through appropriate protective measures by carrying out
certain specified activities (ISPS Code, part A, section 7.2). We also
asked whether the security measures should apply to other vessels that
were not listed in the notice and whether these activities and
protective measures adequately address the security of a vessel.
A very large number of commenters addressed the issue of which
vessels the regulations should be applicable to. This issue has been
discussed in the General Information section above, under the
subheading Applicability of National Maritime Security Initiatives.
Several commenters noted possible alternative measures to be used
in meeting the requirements, which are not specifically listed in the
ISPS Code. The requirements in this general interim rule give
provisions for both vessels and facilities to use Alternative Security
Programs to meet the requirements. We will continue to provide feedback
to industry, via Internet Web page and public notice, on all
Alternative Security Programs that are approved by the Coast Guard (G-
MP) as alternatives.
15. Vessel Security Assessments (VSA) Requirement. In the notice we
discussed the requirements for a Vessel Security Assessment contained
in the ISPS Code and the MTSA. We also discussed our desire to have a
Vessel Security Assessment for each vessel that has to develop a
security plan. In the notice of public meeting we asked for
recommendations on how to conduct a Vessel Security Assessment for a
vessel on a domestic voyage, and whether we should consider any
existing alternatives to a Vessel Security Assessment.
Commenters recommended that we allow industry produced assessment
tools, or require all assessments to be conducted by an objective third
party, while others requested that we develop a template to be used in
a self-assessment process. A few commenters claimed that a security
assessment had already been done by the Coast Guard and requested that
it be used in place of the required Vessel Security Assessment to avoid
duplication of effort.
We strongly support the use of third-party assessments and audits
to ensure quality as well as consistency. However, we are not including
this provision as a mandatory requirement in the Vessel Security
interim rule found elsewhere in today's Federal Register because the
assessment is one part of the vessel security plan that we will be
closely reviewing prior to the plan approval. We are assisting in the
development of several assessment tools and templates. We recommend
that vessel owners and operators seek tools from appropriate industry
sectors that support or represent them to aid in completing the
security assessments. To reduce the duplication of effort, we also
strongly encourage vessel owners and operators to use any information
that was previously collected during a security assessment as reference
material for completion of the applicable areas of the new assessment.
16. Vessel Security Plan Requirement. In the public notice we
discussed the development of a Vessel Security Plan that takes into
consideration a Vessel Security Assessment, and makes provisions for
actions at each of the three MARSEC Levels. In the notice we referenced
the vessel security plan requirements in the ISPS Code and asked for
suggestions about additional items or best practices to be addressed by
the Vessel Security Plan. We also inquired whether an outline would aid
you in developing a vessel security plan.
We did not receive comments suggesting additional items be
addressed in the Vessel Security Plan, but we did receive multiple
industry and organization submissions of their standards for
consideration as a vessel security plan best practice. Many commenters
stated that allowing an existing industry standard to be used would
greatly streamline the review process. A number of others asked if we
could provide a ``model plan'' for them to use. Many commenters also
requested the acceptance of fleet-wide plans. Several owners also asked
if a vessel and a facility, which have an exclusive docking arrangement
(one in which no other vessels dock at the facility and the vessel only
docks at the facility pier), could submit a uniform vessel/facility
security plan.
The strong response and industry standards submitted as examples of
best practices lead us to believe that the maritime industry is
implementing security measures in many sectors. Many of these industry
standards did have ``model plans'' incorporated into them as a
development aid. As discussed previously, we will allow organizations
to submit their security programs for consideration as an alternative
to the requirements in the vessel security interim rule found elsewhere
in today's Federal Register. The concept of accepting fleet-wide plans
or plans that discuss exclusive docking arrangements or a single plan
to cover both a terminal and a vessel, could also be considered
Alternative Security Programs and be accepted if they meet the
specified requirements.
17. Submission of Vessel Security Plans for Approval. The public
notice discussed the need for a vessel to carry on board an approved
Vessel Security Plan. In the notice of meeting, we requested
suggestions on how vessel security plan approvals could be streamlined.
We also asked if the format we proposed was appropriate or if an
alternative process existed that we should consider.
Several commenters questioned the consistency of Vessel Security
Plans approved by varying COTPs and asked what safeguards would be in
place to ensure consistent enforcement for vessels that operate across
COTP boundaries. In contrast, many other commenters felt the approval
at the local COTP level would ease the process and allow for someone
familiar with the vessel's operations to review the Vessel Security
Plan. Finally, some commenters were also curious about the procedure
for reviewing foreign vessel security plans.
To ensure a consistent approval process, we have decided that the
Marine Safety Center (MSC) will review and approve all vessel security
plans. This requirement is included in the Vessel Security interim
rule, found in today's Federal Register. For those Vessel Security
Plans with specific local or regional considerations, we will ensure
that the local COTP or District personnel will be able to interject any
industry or geographic specific information into the approval process.
It is not our intent to individually approve vessel security plans
for foreign SOLAS vessels coming to the U.S. Consistent with our
international
[[Page 39260]]
obligations under SOLAS and the ISPS Code, we will deem flag
administration approval of a ship security plan to constitute approval
under 46 U.S.C. 70103, provided the ship security plan complies with
SOLAS and ISPS Code, part A, having fully applied the relevant
provisions of ISPS Code, part B. Compliance by foreign SOLAS vessels
will be addressed under the Port State Control program, with plans
being reviewed by the vessel's flag administration as required by SOLAS
and the ISPS Code.
However, in certain cases, foreign vessel operators may be required
to submit the vessel security plan to the U.S. for approval, as
required in the Vessel Security interim rule found elsewhere in today's
Federal Register. These foreign vessels are an exception because they
fall outside of the tonnage or route thresholds for SOLAS obligations,
yet trade with us and, for security consistency, should meet the same
security requirements as those vessels covered under domestic law.
18. Existing Security Measures for Certain Vessels. As mentioned in
the notice of meeting, we are evaluating the need for retaining
existing security requirements that are contained in 33 CFR part 120,
for certain vessels (e.g., large passenger vessels) that could be
involved in a transportation security incident. More specifically, the
notice asked whether additional security requirements are needed for
certain vessel types.
Many commenters noted that the standards of the ISPS Code provided
more than adequate security measures and could be considered equivalent
to the existing 33 CFR part 120 requirements.
Because we are still evaluating the equivalency of 33 CFR 120 to
the requirements in the Vessel Security interim rule found elsewhere in
today's Federal Register, we do not intend to revise 33 CFR part 120 at
this time. However, in the future, this part may be revised or entirely
deleted. This will consolidate the security requirements for all
vessels in subchapter H.
19. Vessel Security Recordkeeping. In the notice of meeting, we
requested suggestions or best practices related to recordkeeping. We
also asked whether we should prescribe a format for these records.
Numerous commenters asked that industry standards be accepted for
recordkeeping and that companies and vessels be allowed to decide where
to keep records. Several commenters questioned the need to keep records
for two years, while others stated that there was no need to keep
records. Several commenters asked that a format not be specified but
that the Coast Guard provide clear guidance on what type of information
should be kept.
We believe that industries have developed suitable internal
guidance for keeping records. These records are essential to ensuring
compliance and for this reason we are requiring security records be
maintained for 2 years. Specific guidance on what type of information
must be kept is included in the Vessel Security interim rule found in
today's Federal Register, with flexibility to choose their format and
where the records are kept.
20. Company Security Officer Designation. In the notice of public
meeting, we asked whether Company Security Officers should be required
to attend training and if company certification is appropriate to
verify the Company Security Officer's qualifications. We also
acknowledged that many companies already have training programs in
place.
Several commenters stated that it was reasonable for the company to
train and certificate the Company Security Officer, while other
commenters believed it was a conflict of interest. Others commented on
whether records should even be kept; some stated that no records should
be kept and some recommended that the records should be kept for a
period of 1 to 3 years.
We recognize there are no approved courses for the Company Security
Officer at this time. In the absence of approved formal training, we
intend to allow companies to certify that personnel holding the Company
Security Officer position have received appropriate training or possess
the job experience required to fulfill their Company Security Officer
duties, based on the requirements in the Vessel Security interim rule
found in today's Federal Register.
We believe that the Company Security Officer's participation in
exercises is critical to improving security. In order to ensure the
Company Security Officer has participated in appropriate port-level
exercises, we are requiring records, including a list of participants,
to be kept for 2 years.
In addition to the questions we asked in the notice of meeting, we
received several comments outside of those questions regarding the
Company Security Officer. Several commenters expressed confusion about
the requirements for a Company Security Officer. To clarify, a company
with a large fleet may decide to group its vessels and assign a Company
Security Officer to each group. This company would then have several
Company Security Officers, one Company Security Officer per vessel
group. While the Company Security Officers are responsible for the
security of the vessels in their group, they may not act as Vessel
Security Officer, except as exempted by the requirements in Vessel
Security interim rule found in today's Federal Register.
21. Vessel Security Officer Designation. In the notice of public
meeting, we asked whether Vessel Security Officers should be required
to attend training and if company certification is appropriate to
verify the Vessel Security Officer's qualifications. We also
acknowledged that many companies already have training programs in
place.
Numerous commenters supported allowing company certification and
felt formalized training was a good system to certificate personnel. A
small group of commenters saw no need for any formalized training or
company certification. We did not receive any comments to our request
for suggestions for certain classes of vessels being allowed an
alternative to a Vessel Security Officer.
We recognize that Vessel Security Officer security training is not
currently formalized, however, it would be beneficial as previously
discussed in the Discussion of Comments to Maritime Security Public
Meetings section of this preamble. In the absence of approved formal
training, we intend to allow companies to certify that personnel
holding the Vessel Security Officer position have received appropriate
training or possess the job experience required to fulfill their Vessel
Security Officer duties, based on the requirements in the Vessel
Security interim rule found in today's Federal Register. Although we
did not receive any suggestions on alternatives to a Vessel Security
Officer, provisions within the Vessel Security requirements found
elsewhere in today's Federal Register, do not preclude a Company
Security Officer from also acting as a Vessel Security Officer.
22. Security Training and Drill Requirements for Vessel Personnel.
In the notice of public meeting we requested comments on whether we
should require vessel security personnel to attend formal training. We
discussed the concept of allowing the company, and its Company Security
Officer, Vessel Security Officer, Facility Security Officer, or Vessel
Master to certificate security officers and train the vessel personnel
in accordance with the requirements. We also asked if prescribing the
format for training records would assist the companies.
[[Page 39261]]
Several commenters agreed that the company and its Company Security
Officer, Vessel Security Officer, Facility Security Officer or Vessel
Master should certificate security officers and train the vessel
personnel, while a few commenters saw no need for formalized training.
A few commenters also stated that the drill and exercise requirements
were excessive. Several commenters recommended we provide specific
requirements on the type of information that should be recorded, but
not require a specific format for record keeping.
As previously stated, there are no approved courses for vessel
personnel. In the absence of approved formal training, we intend to
allow companies, Vessel Masters, Vessel Security Officers, Facility
Security Officers, or Company Security Officers to certify that
personnel holding a security position have received the training
required to fulfill their security duties.
When training is developed, we will reassess the training and
certification requirements in the Vessel Security interim rule found in
today's Federal Register. We will then propose alternatives or
additional requirements in a separate rulemaking, as appropriate.
We have included the specific requirements in the Vessel Security
interim rule, found in today's Federal Register, on what type of
information must be kept, with the vessel owner or operator deciding
what format and where the records will be kept.
We believe it is imperative that exercises and drills be conducted
to ensure the plans are current and that the personnel are familiar
with their responsibilities. Therefore, we have included exercise and
drill requirements in the Vessel Security interim rule found in today's
Federal Register. Security drills and exercises can be incorporated
into existing response exercises and drills and we believe that by
combining exercises, when possible, the exercises and drilling
requirements can be made more efficient.
23. Certification for Vessels. In the notice of public meeting we
discussed the certification requirements for an ISSC and requested
suggestions for how best to verify and certificate compliance.
Many commenters suggested that amending a vessel's Certificate of
Inspection or a letter stating compliance with security requirements
would be adequate. Other commenters recommended allowing third-party
certification rather than Coast Guard certification.
We believe certification and verification can be accomplished
during a regular Coast Guard Inspection and the vessel's certificate
can adequately reflect compliance. In addition, for those uninspected
vessels requiring security measures, other provisions for documentation
are provided in the Vessel Security interim rule, found elsewhere in
today's Federal Register. We have not included provisions for third-
party certification, however we have included provisions for
Alternative Security Programs that could streamline the certification
process.
Facility Security Provisions
24. Incorporation by Reference. In the notice of public meeting, we
stated we were considering accepting national, State, and industry
security standards to meet certain security requirement(s), such as a
facility security plan that incorporates lighting or fencing equipment
that meet an accepted national standard. We requested that commenters
share known national, State, or industry standards that could be used
as an equivalent to our requirements in the marine environment and we
asked them if they would use such standards, if available.
Many commenters supported our position of including a provision for
accepting national, State, and industry security standards as an
equivalent to meet certain security requirements. Several commenters
confirmed that those within the security industry, such as the fence
and lighting industries, should be allowed to continue providing their
own security standards and that in general, companies would meet marine
industry-wide standards once the Coast Guard approved them. Finally,
many commenters expressed concern that if the Coast Guard prescribed
measures to be used as industry standards that the measures would be in
excess of what is needed.
Traditionally, we incorporate by reference equipment standards we
feel are appropriate to use in the maritime environment to enable
vessel and facility owners and operators the flexibility to use
standards they are familiar with as well as ones that are appropriate
to meet the requirements. In the maritime security regulations for
subchapter H found in today's Federal Register, there is no national,
State, or industry equipment standards incorporated by reference
because specific standards were not identified. However, a section in
this interim rule (part 101) has been reserved for listing equipment
standards for incorporation, if found appropriate in the future.
25. Facility Security Requirement. In the public notice, we
discussed that the SOLAS amendments (chapter XI-2, regulation 10) and
the Code (part A and part B, section 14) require facilities to act upon
security levels set by Contracting Governments through appropriate
protective measures by carrying out certain specified activities (ISPS
Code, part A, section 14.2). We also asked whether the security
measures should apply to other facilities that were not listed in the
notice and whether current activities and protective measures
adequately address the security of a facility.
A large number of commenters addressed the issue of which
facilities the regulations should be applicable to. This issue has been
discussed in the Applicability of National Maritime Security
Initiatives section above.
We did not receive any comments specifically addressing the request
for suggestions on additional requirements that could be used.
Several commenters stated that barge fleeting areas should be
covered under the new requirements. To address fleeting areas and the
security of the barges that use them we have included fleeting areas in
the Facility Security interim rule found in today's Federal Register.
26. Facility Security Assessments Requirement. In the notice, we
discussed the requirements for a facility security assessment contained
in the ISPS code and the MTSA. We also discussed our desire to have a
facility security assessment for each facility that has to develop a
facility security plan. In addition, we asked if there were any
recommendations on how to conduct a facility security assessment and if
any appropriate alternatives to a facility security assessment already
existed that we should consider.
Several commenters stated that they have used NVIC 11-02 titled,
``Security Guidelines for Facilities'' or similar approaches in
developing a company assessment plan and found them easy to follow.
Other commenters offered alternatives, such as a Coast Guard facility
inspection or a Navy facility security assessment.
We have included requirements for facility assessments in the
Facility Security interim rule found elsewhere in today's Federal
Register. In addition we have been assisting in the development of
several industry and Federal assessment tools and templates. We are
aware that other agencies of DHS (e.g., TSA) are developing a self-
assessment tool. We understand that they intend to mandate use of this
tool in the future. We recommend that facility owners and operators
seek tools from appropriate industry sectors that support or represent
them to aid in completing the security assessments. To
[[Page 39262]]
reduce the duplication of effort, we also strongly encourage facility
owners and operators to use any information that was previously
collected during a security assessment as reference material for
completion of the applicable areas within the new assessment. There are
also provisions in this interim rule for the use of alternative
assessment tools however; tools such as the Department of Defense
assessment have not been specified because we have focused on the
specific needs required for transportation-related assessments.
27. Facility Security Plans Requirements. In the public notice, we
discussed the ISPS Code (part A and part B, section 16) as well as the
MTSA (46 U.S.C. sections 70103 and 70104) that takes into consideration
a facility security assessment, and makes provisions for actions at
each of the three MARSEC Levels. We also asked for suggestions about
additional items or best practices to be addressed within the facility
security plan requirements.
We did not receive any comments specifically addressing additional
items that the facility security plan should cover, however, many
commenters did state that an outline would be a useful tool for
development. Several of these commenters went on to say that a ``model
plan'' would prove to be a better guide because it would clearly show
our expectations of a plan. Several commenters noted that there are
companies that own many facilities and vessels, and asked if one
combined security plan could be submitted to avoid redundancies in
submissions.
The strong response and industry standards submitted as examples of
best practices lead us to believe that the maritime community is
implementing security measures in many sectors. Many of these industry
standards did have ``model plans'' incorporated into them as a
development aid. As discussed previously, we will allow organizations
to submit their security programs for consideration as an alternative
to the requirements in Facility Security interim rule found elsewhere
in today's Federal Register. The concept of accepting fleet-wide plans
or plans that discuss exclusive docking arrangements, or a single plan
to cover both a terminal and a vessel, could also be considered
Alternative Security Programs and be accepted if they meet the
specified requirements.
28. Submission of Facility Security Plans for Approval. In the
public notice we discussed the ISPS Code, part A, section 16, requiring
facilities to develop and maintain a facility security plan that is
approved by the Contracting Government in whose territory the facility
is located. We asked for suggestions on how facility security plan
approvals could be streamlined. We also asked if the format we proposed
was appropriate or if an alternative process existed that we should
consider.
There was large support for the local COTP to approve facility
security plans. Some commenters asked how the Coast Guard would ensure
consistency across COTP zones. Several commenters approved of the
format Coast Guard presented, but did not want a mandated format.
As stated in the notice of meeting, we intend for the COTP to
approve facility security plans and we will also work to ensure there
is consistency between COTP zones. The Facility Security interim rule
found elsewhere in today's Federal Register contains an outline to be
followed when constructing a facility security plan. This outline
format provides facilities with leeway during the development process
of their facility security plan. Contracting Governments to SOLAS will
approve the security plans for port facilities within their territory.
These Contracting Governments are also responsible for notifying the
IMO regarding which port facilities within their territory have
approved security plans. As discussed previously, a vessel calling on a
foreign port facility that does not comply with SOLAS and the ISPS Code
or at a port that does not maintain effective anti-terrorism measures,
will be subject to scrutiny under our Port State Control Program to
ensure that the security intended to be achieved by this subchapter
will not be compromised.
29. Facility Security Recordkeeping. In the notice of meeting, we
requested suggestions or best practices related to recordkeeping. We
also asked whether we should prescribe a format for these records.
Many commenters supported our position on keeping records for 2
years, while others questioned it and some opposed the concept of
maintaining these records at all. Numerous commenters asked that
industry standards be accepted or that companies and facilities be
allowed to decide where to keep records. Several commenters requested
specific guidance on the type of information that should be kept, but
did want the format not be specified. Some commenters proposed that
third parties be required for record keeping.
We believe that industries have developed suitable internal
guidance for keeping records. These records essential to ensuring
compliance and for this reason we are requiring security records be
maintained for 2 years. Specific guidance on what type of information
must be kept is included in the Facility Security interim rule found in
today's Federal Register, with flexibility to choose their format and
where the records are kept. Finally, we feel requiring a third party to
keep all records would cause undue burden to the facilities.
30. Facility Security Officer. In the notice of public meeting, we
asked whether Facility Security Officers should be required to attend
training and if company certification is appropriate to verify the
Facility Security Officer's qualifications. We acknowledged that many
companies already have training programs in place. We also asked if
Facility Security Officers might be performing their duties for more
than one facility.
The majority of the commenters stated that companies should be
allowed to verify qualifications and certificate Facility Security
Officers. A few commenters felt it was a conflict of interest for the
company to certificate a Facility Security Officer as meeting the
knowledge level. We also received many comments about required formal
training; some of the comments were in favor and some felt it was not
necessary. Several commenters submitted examples of cases where the
Facility Security Officer could be responsible for more than one
facility. Finally, many commenters stated that the record keeping
requirements were reasonable and could be easily instituted, while
others stated this task would be too time consuming.
We recognize that Facility Security Officer security training is
not currently formalized, however, it would be beneficial as previously
discussed in the Discussion of Comments to Maritime Security Public
Meetings section of this preamble. In the absence of approved formal
training, we intend to allow companies to certify that personnel
holding the Facility Security Officer position have received
appropriate training or possess the job experience required to fulfill
their Facility Security Officer duties, based on the requirements in
the Facility Security interim rule found in today's Federal Register.
We do not see this authority as a conflict of interest.
We agree that a Facility Security Officer could oversee the
security operations at more than one facility, where facility security
plans are very similar because of similar operations and in close
proximity of each other. This decision will be left to the local COTP
when plans are being approved.
[[Page 39263]]
31. Security Training, Drills and Exercises for Facility Personnel.
In the notice of public meeting we requested comments on whether we
should require facility security personnel to attend formal training.
We discussed the concept of allowing the Facility Security Officer to
certificate security officers and train the facility personnel in
accordance with the requirements. We also asked if prescribing the
format for training records would assist the companies.
Several commenters recommended that we provide specific guidance on
the type of information that should be recorded, but not require a
specific format for the recordkeeping. Other commenters stated that the
drill and exercise requirements were excessive.
As previously stated, there are no approved courses for facility
personnel. In the absence of approved formal training, we intend to
allow Facility Security Officers to certify that personnel holding a
security position have received the training required to fulfill their
security duties.
When training is developed, we will reassess the training and
certification requirements in the Facility Security interim rule found
in today's Federal Register. We will then propose alternatives or
additional requirements in a separate rulemaking, as appropriate.
We have included the specific requirements in the Facility Security
interim rule, found in today's Federal Register, on what type of
information must be kept, with the facility owner or operator deciding
what format and where the records will be kept.
We believe it is imperative that exercises and drills be conducted
to ensure security plans are current and that the personnel are
familiar with their responsibilities. We also believe that the Facility
Security Officer's participation in exercises is critical to improving
security. Therefore, we have included exercise and drill requirements
in the Facility Security interim rule found in today's Federal
Register. Security drills and exercises can be incorporated into
existing response exercises and drills and we believe that by combining
exercises, when possible, the exercises and drilling requirements can
be made more efficient.
32. Certification for Facilities. In the notice of meeting, we
requested suggestions for verification and certification that
facilities do comply with the security regulations. We also asked
whether we should allow companies to certify their facilities.
A large number of commenters stated that self-certification which
reflects a current industry standard and has an independent audit would
be appropriate. Other commenters supported the role of the Coast Guard
in oversight during the certification process.
We intend to approve all facility security plans and compliance
with the requirements in the Facility Security Interim rule found in
today's Federal Register. We believe certification and verification can
be accomplished during a Coast Guard Inspection and the facility's plan
approval letter sufficiently documents compliance when viewed in
conjunction with other security-related records. We have not included
provisions for third-party certification in the Facility Security
interim rule, found in today's Federal Register however we have
included provisions for Alternative Security Programs that could
streamline the certification process.
Other Security Provisions
33. Permanent Hull Marking Requirement. In our notice of meeting,
we discussed the SOLAS amendments creating a new regulation in Chapter
XI-1 (Regulation 3) that requires vessels to have their identification
number permanently marked on their hull and in an easily accessible
place on the transverse bulkhead of the machinery space or on another
suitable interior location, as specified. We discussed our intention
not to extend the application of this requirement to vessels limited to
domestic voyages and requested comments on this SOLAS provision and its
application to the domestic trade.
An extremely large number of comments were received on this issue.
Almost every comment strongly supported our concept to not require the
hull markings for vessels that only engage in domestic voyages,
including all international voyages not subject to SOLAS. Several
commenters asked for exemptions for certain vessel types such as
historically significant vessels. We believe that the requirement
should not be extended to domestic vessels and, in the Vessel Security
requirements found elsewhere in today's Federal Register, we have only
applied the requirement to those vessels obligated to meet the SOLAS
requirement. In accordance with SOLAS, a passenger vessel of 100 gross
tonnage, ITC and upwards, and cargo vessels of 300 gross tonnage, ITC
and upwards, on an international SOLAS voyage should be marked in
accordance with its guidance.
34. Continuous Synopsis Record Requirement. In our notice of
meeting, we discussed the SOLAS amendments that created a new
regulation in Chapter XI-1 (regulation 5) that requires vessels to
maintain and update a Continuous Synopsis Record, to be kept on board,
that contains information such as the name of the flag administration,
the date of the vessel's registry, the vessel's identification number,
etc. We discussed our intention not to extend the application of this
requirement to vessels limited to domestic voyages and requested
comments on this SOLAS provision and its application to the domestic
trade.
An extremely large number of comments were received on this issue.
Almost every comment strongly supported the Coast Guard position of not
requiring the Continuous Synopsis Record for vessels that only engage
in domestic voyages. Many of the comments stated that the information
was already on board the vessel and readily available. A few comments
were in favor of requiring the information for domestic vessels stating
that if the information were in one place it would be useful. While we
believe that having the information in one document would be helpful in
certain instances, we feel that the value added by requiring another
document to be carried on a domestic vessel is not sufficient to do so.
The information on the Continuous Synopsis Record is currently
maintained on the Certificate of Inspection and the Certificate of
Documentation, both of which are required to be on a vessel when it is
operating. Therefore, we believe that the requirement should not be
extended to domestic vessels and, in the Vessel Security requirements
found elsewhere in today's Federal Register, we have only applied the
requirement to those vessels obligated to meet the SOLAS requirement.
35. Security Alert System Requirement. In our notice of meeting, we
discussed the SOLAS amendments that created a new regulation in Chapter
XI-2 (regulation 6) that requires vessels to have a security alert
system. The Coast Guard is considering applying the requirement to
vessels limited to domestic voyages that are engaged in the transport
of certain dangerous cargos. We discussed our intention to extend the
application of this requirement to vessels on international voyages and
also requested comment on whether this type of system could be useful
on certain domestic voyages such as those involving the transportation
of certain dangerous cargos or large passenger vessels.
Many commenters supported extending the requirement to other
cargoes and noted the need for alerting us if there were any problems
in a quick
[[Page 39264]]
and efficient manner. In contrast, many other commenters strongly
opposed the extension of this system to the domestic fleet and
questioned the functionality of it; asking what would be the resulting
action once an alert was sent, especially from a remote location.
Additionally, some commenters stated a desire to voluntarily install
the equipment and use the system once it has been proven effective on a
large scale.
While we believe an alert system is a valuable way to communicate
to law enforcement if a vessel operator perceives a threat or a
security incident is imminent, alternatives can also be used that may
also prove effective (such as code words in a routine radio call or a
pre-designated call word). Until vessel plans and AMS Plans are
established and exercised to evaluate communications and identify gaps,
we do not intend to extend this requirement to domestic vessels.
However, if future communication exercises prove that alert systems
already within the maritime community do not adequately address the
appropriate vessels, we may require them in a separate rulemaking.
Therefore, in the Vessel Security requirements found elsewhere in
today's Federal Register, we have only applied the requirement to those
vessels obligated to meet the SOLAS requirement.
36. Fixed and Floating Platforms Requirements. The International
Maritime Organization issued a resolution titled, ``Establishment of
Appropriate Measures to Enhance the Security of Ships, Port Facilities,
MODUs on Location and Fixed and Floating Platforms not covered by
Chapter XI-2 of the 1974 SOLAS Convention'' which was adopted by the
Conference on Maritime Security as Resolution 7 on December 12, 2002.
This resolution encourages Contracting Governments to consider security
requirements for these maritime operators and platforms. In the notice,
we discussed these international efforts and requested comments on
whether security requirements should be placed on the offshore fixed
and floating platforms.
Many comments were received which emphasized that fixed and
floating platforms should be addressed within the port security plan.
However, some commenters disagreed stating that even if included in a
port security plan, the degree of security would be very different
among platforms due to the potential for different enforcement
procedures. Other commenters supported the position that while security
measures are appropriate for MODUs and fixed and floating platforms,
but believed that any regulations should be carefully tailored to the
unique operating environment of the offshore oil and natural gas
exploration industry. These commenters also noted that, in their
opinion, only a minimal amount of offshore platforms actually pose a
viable security risk.
In accordance with the MTSA, we conducted an initial assessment on
vessels and U.S. facilities as discussed in the Applicability of
National Maritime Security Initiatives section above. Working with the
Mineral Management Service (MMS) we identified certain operational
quantities and personnel thresholds that are at a higher risk of a
transportation security incident. Therefore, in the OCS Facility
Security requirements found elsewhere in today's Federal Register, we
have only applied requirements to those offshore platforms. However, we
are also concerned about the consistency of security measures
throughout the offshore community and have worked extensively with
industry to develop standards that substantially improve security for
this industry. The American Petroleum Institute (API) recommended
practice titled, ``API RP70 Security for Offshore Oil and Natural Gas
Operations, 1st Edition'' is available and its use is strongly
encouraged for all owners and operators in this industry. Other
platforms not included in the narrow operational category discussed
above will be covered as part of the AMS Plan requirements in the
``Area Maritime Security'' (USCG-2003-14733) interim rule found
elsewhere in today's Federal Register. However, in the future, we
intend to review the need for further security requirements related to
the offshore industry and may require compliance with industry
standards such as API RP70 under a separate rulemaking.
37. Seafarers' Identification Criteria Requirements. In our notice
of meeting, we noted the MTSA (46 U.S.C. 70111) requires the Secretary
to establish enhanced crewmember identification. In addition, section
103 of the MTSA encourages the Secretary to negotiate an agreement for
an international system of identification for seafarers. The Coast
Guard has been working with other agencies of DHS (e.g., TSA and
Immigration and Naturalization Service), the Department of State, the
Maritime Administration, and others to support the work of the
International Labour Organization (ILO). In the notice, we stated our
intent to await the outcome of the June 2003 ILO conference prior to
developing further seafarer identification domestic policy. Because
this interim rule has been published in a timeframe that did not allow
us to incorporate the results of the ILO conference into it, we will
issue any further requirements pertaining to seafarer identification
under a separate rulemaking, if appropriate.
In addition to the above, the U.S. Government is mandated through
the MTSA (46 U.S.C. 70105) to develop and implement a Transportation
Security Card to control access to secure areas on a vessel or
facility. Other agencies of DHS (e.g., TSA) have been developing the
TWIC to satisfy the MTSA requirement. Pilot testing of the TWIC is
scheduled for two ports, each in communication with a Transportation
Security Administration central control point. This pilot project
allows the other agencies of the DHS (e.g., TSA) to leverage key
regional stakeholders and analyze life cycle and cost benefits, as well
as the performance of various forms of identification technologies.
Recognizing that the implementation of the TWIC and the ILO efforts
on seafarers identification involve substantial negotiation and
development, we requested comments on our existing clarification of
regulations notice titled ``Maritime Identification Credentials''
published in the Federal Register on April 7, 2002 (67 FR 51082). This
document can be viewed on the DOT Document Management System at http://dms.dot.gov
under Docket USCG-2002-12917. We requested
comments in the notice of whether changes to this clarification were
needed or if other forms of identification should be recognized in the
interim.
Many commenters suggested that we accept merchant mariner documents
(MMD) and facility-issued ID cards as a form of identification. Some
commenters stated that the existing requirements the Coast Guard set
out in its clarification notice are sufficient until the TWIC project
is complete. The majority of commenters submitted specific
recommendations or suggestions with regard to the TWIC.
Under the current clarification notice, identification such as an
MMD or a facility-issued card meeting the requirements set out in the
notice are acceptable. Based on the lack of comments requesting
amendments to the clarification, we will not amend the requirements at
this time. We have incorporated them into this interim rule in order to
ensure personal identification is addressed in subchapter H. We will
also continue furthering the identification efforts at ILO and through
the TWIC project. Comments received on this docket that relate to the
TWIC project have been
[[Page 39265]]
forwarded to the Transportation Security Administration's docket on
that subject for consideration under that rulemaking, as appropriate.
38. Advanced Notice of Arrival (ANOA) Requirements. In our notice
of meeting, we discussed that the Coast Guard had a notice of proposed
rule titled ``Notification of Arrival in U.S. Ports'' published in the
Federal Register on June 19, 2002 (67 FR 41659). In the meeting notice,
we discussed our intent to review the notification requirements based
on the additional provisions contained in the SOLAS amendments and the
ISPS Code and asked for comments relating to these provisions
(specifically SOLAS Chapter XI-2 Regulation 9). Additionally, we
requested comments on how foreign flag vessel owners or operators could
provide us advance notification on their compliance with the ISPS Code,
part B. Finally, we asked if any notification requirements for the
upper Mississippi River (above mile marker 235) should be considered
for security purposes.
Several commenters suggested that it would be difficult for the
vessel to provide the proper information mentioned in the SOLAS
amendments or the ISPS Code. Several other commenters stated that the
ANOA would be the proper place for a vessel to affirm that it is in
compliance with the ISPS Code. Several comments were submitted with
respect to the NOA rulemaking published in the Federal Register on June
19, 2002 (67 FR 41659). Several commenters expressed reservation at the
value of requiring ANOA above mile marker 235 on the Mississippi River
or any other remote locations and suggested it not be required.
We have reviewed the issue and currently believe that an
alternative process being developed locally could be more effective. We
are incorporating notice of arrival requirements in the Vessel Security
interim rule found elsewhere in today's Federal Register to capture the
information needed to assess a vessel's compliance with the security
requirements of SOLAS Chapter XI-2 and the ISPS Code. The reporting
requirements are similar to those required when the International
Safety Management Code was implemented and will allow us to have the
basic information needed for the evaluation of vessel's security
compliance prior to the vessel entering port. Since the publication of
the notice of meeting, the Coast Guard published its final rulemaking
titled ``Notification of Arrival in U.S. Ports'' published in the
Federal Register on February 28. 2003 (68 FR 9537). Comments submitted
to the public meeting notice that related to the proposed Notification
of Arrival (NOA) rulemaking docket were not considered, because the
proposed rulemaking comment period for the NOA rulemaking closed prior
to the end of the public meeting notice comment period. As for the
Mississippi River above mile marker 235 and other remote location
reporting requirements, the interim rule does not add any further
requirements to the notice of arrival requirements. We will continue
reviewing notice of arrival information and the reporting requirements
in the future to determine if further requirements are needed to ensure
the security provisions are covered. Any additional requirements would
be proposed in a future rulemaking.
39. Foreign Port Assessments. In our notice of meeting, we
discussed Section 102 of the MTSA (46 U.S.C. 70108) which requires the
Secretary to assess the effectiveness of antiterrorism measures
maintained at a foreign port that serves vessels departing on a voyage
to the U.S. In the notice, we discussed the concept of accepting a
foreign government's approval of the respective port facility security
plans, thereby attesting to their compliance with SOLAS and the ISPS
Code, to provide the initial assessment of that foreign port's
antiterrorism security. We also suggested that we were considering any
other relevant information or the possibility of conducting audits in
foreign ports and requested comments on these ideas.
Several commenters stated that accepting the foreign government's
approval of a port facility security plan supports the international
provisions and places the responsibility in the proper place. Many
commenters did ask how the U.S. would keep track of those not meeting
their obligations internationally with respect to the port facility
requirements in SOLAS Chapter XI-2 and the ISPS Code. Many commenters
also stated that the level of compliance of a facility would be
directly related to the importance the Contracting Government places
upon their obligations to meet the ISPS Code requirements.
It is each Contracting Government's responsibility to ensure
compliance; however, it remains our intent to verify the compliance of
foreign port facilities in the future and we will work with relevant
Contacting Governments to facilitate these evaluations. In the ``Area
Maritime Security'' (USCG-2003-14733) interim final rule found
elsewhere in today's Federal Register, recognition of another
Contracting Government's port facility security plan is discussed.
However, as mentioned, those vessels calling on foreign port facilities
that do not meet the requirements of SOLAS and the ISPS Code may be
subject to control and compliance measures, even if the vessel itself
has a valid ISSC and an approved security plan.
40. Automatic Identification System (AIS) Requirements. In our
notice of meeting, we discussed regulation V/19 of SOLAS, which sets
forth the international requirements for the carriage of AIS, including
an implementation schedule that was recently accelerated by the newly
adopted amendments to SOLAS. Domestically, section 102 of the MTSA (46
U.S.C. 70114) gives the Secretary additional broad discretion to
require AIS on any vessel operating on the navigable waters of the U.S.
if necessary for the safety of navigation. In the notice, we discussed
our consideration of AIS for security purposes as an essential element
in ensuring the safety of navigation. We also noted that the Department
of Transportation's Fall 2002 Unified Agenda (67 FR 74853, December 9,
2002), reflected a separate AIS notice of proposed rulemaking (NPRM)
which we anticipated publishing during the early months of 2003.
However, since the SOLAS amendments made in December 2002 and the MTSA
enactment directly impacted this intended notice of proposed
rulemaking, which had not taken into account the provisions of the
MTSA, we withdrew the NPRM from consideration to assess the impact of
both and evaluate options for further development. We did ask for
comments in the notice of public meetings on whether certain vessel
types currently listed in the MTSA AIS requirements should be
considered candidates for exemption or if the MTSA AIS application was
too limited and should be expanded. We also requested comments on
whether there are navigable waters of the U.S. where the AIS carriage
requirement should be waived because no security benefit would be
derived from the requirement.
Several commenters stated that they believed small passenger
vessels should not be required to carry AIS due to the equipment
expense. Several other commenters asked that certain vessel types such
as fleeting tugs, commercial assistance tugs, barges, and vessels of
gross tonnage less than 300 on domestic voyages be exempted from the
regulations. In contrast, a few commenters suggested that all vessels
be required to carry AIS. Several other commenters provided specific
areas and types of operations where the system
[[Page 39266]]
would be beneficial. A series of commenters asked what the policy would
be if the SOLAS dates and the MTSA dates were in conflict. Several
comments also suggested that vessels operating on remote waterways not
be required to carry the system because it was not of any value to the
safe navigation of the vessel.
We believe that the MTSA AIS application is consistent with SOLAS
and the domestic application is appropriate for the safety and security
of navigation within our ports and waterways. Therefore, we have
included this application in the AIS interim rule and notice for
comment found elsewhere in today's Federal Register. We have also
included a process for vessel owners and operators to request to waive
or exempt the AIS requirements.
Several comments were submitted that did not reflect the questions
asked; however, a few are germane to the general subject of security. A
few commenters asked how the Coast Guard intends to receive the AIS
signal. A few commenters questioned the security of AIS and stated that
they believed it could be used against a vessel or a port by
terrorists; these comments went on to suggest that AIS had no benefit
from a security aspect and was not applicable. Several commenters also
proposed alternatives to AIS at different MARSEC Levels. Finally, a few
commenters strongly suggested that we not require AIS in an interim
rule but rather issue a notice of proposed rulemaking to ensure
adequate notice and comment for this equipment requirement.
We believe that there are quantifiable security and safety benefits
from AIS. We are currently upgrading the Vessel Traffic Service (VTS)
systems within the ports to be able to receive and process AIS
information. As for the security of AIS, the signal is not secure
however; we believe that the benefit of being able to quickly identify
and warn mariners about threats directly related to their vessels out
weighs the potential security gap presented by AIS's open broadcast
nature. We are not considering alternates to AIS for those vessels that
are not included in the MTSA requirements but have requested comments
on the AIS equipment standards and requirements as well as nationwide
implementation in the notice for comments on AIS that is found
elsewhere in today's Federal Register. In the future, we may explore
other long range tracking alternates and we will continue work in
expanding AIS functionality (e.g., long range communication
interfacing) and progeny (e.g., AIS Class A derivatives, AIS Class B),
in pursuit of other options for those vessels not required to have AIS
though could benefit from the safety and security aspects of this
technology.
We thoroughly considered the option of issuing a notice of proposed
rule for AIS prior to issuing the interim rule found elsewhere in
today's Federal Register. Based on the strong language of section
102(d) of the MTSA, which includes ``The Secretary shall issue an
interim final rule as a temporary regulation implementing this section
* * * as soon as practicable after the date of enactment of this
section, without the regard to the provisions of chapter 5 of title 5,
* * *'', we determined that AIS, as part 102, needed the same
accelerated treatment as the other security requirements presented in
the interim rules issued by the Coast Guard and found elsewhere in
today's Federal Register. We have provisions for comments to this
interim rule and will consider your input prior to the final
rulemaking. Additionally, we have included a separate notice of comment
found elsewhere in today's Federal Register to ensure that vessel
owners and operators are afforded ample opportunity to comment on this
equipment carriage requirement in the broad nationwide application that
MTSA suggests.
Discussion of Interim Rule
This Interim rule establishes parts 101 and 102 in new subchapter H
to title 33 of the Code of Federal Regulations. It provides the General
Provisions for all of subchapter H, and is broken down into five
subparts, which we will now discuss in order.
Part 101--Subpart A--General
Subpart A, section 101.100 explains the purpose behind all of the
Regulations found in subchapter H. That purpose is to increase the
level of maritime security found in our nation's ports, while at the
same time aligning our domestic maritime security regulations with
international standards, wherever such alignment is appropriate. These
regulations should dissuade those persons or groups that would seek to
disrupt the maritime elements of the national transportation system by
ensuring that security arrangements are as compatible as possible for
vessels trading internationally.
Subpart A, section 101.105 goes on to define the terms that are
used in subchapter H. Definitions found in this section of part 101,
subpart A are applicable to the entire subchapter. We have included all
definitions in part 101 in order to give the reader a common place for
reference, a ``one stop shopping'' of sorts.
Many of the definitions are self-explanatory, so we have not gone
into detail about them here. For brevity, we are limiting this
discussion to those definitions that we think may be confusing or
novel. For instance, the MTSA and the ISPS Code use different terms to
define similar, if not identical, persons or things. These differing
terms sometimes match up with the terms used in subchapter H, but
sometimes they do not. Thus, in some definitions you will find
references to other terms, used in the MTSA or the ISPS Code. We are
including a table of these terms here, for easy reference.
Table 4.--Equivalent Terms
----------------------------------------------------------------------------------------------------------------
Subchapter H terms USCG terms MTSA terms ISPS code terms
----------------------------------------------------------------------------------------------------------------
Plans
----------------------------------------------------------------------------------------------------------------
Area Maritime Security (AMS) Plan.... Port Security Plan..... Area Maritime Security Port Facility Security
Transportation Plan. Plan.
Vessel Security Plan................. Vessel Security Plan... Vessel Security Plan... Ship Security Plan.
Facility Security Plan............... Facility Security Plan. Facility Security Plan. None.
--------------------------------------
Assessments
----------------------------------------------------------------------------------------------------------------
Area Maritime Security (AMS) Port Security None................... Port Facility Security
Assessment. Assessment. Assessment.
Vessel Security Assessment........... Vessel Security Vessel Security Ship Security
Assessment. Assessment. Assessment.
[[Page 39267]]
Facility Security Assessment......... Facility Security Facility Security None.
Assessment. Assessment.
--------------------------------------
People
----------------------------------------------------------------------------------------------------------------
Captain of the Port (COTP)........... Captain of the Port Federal Maritime Port Facility Security
(COTP). Security Coordinator Officer (PFSO).
(FMSC).
Company Security Officer............. Company Security Company Security Company Security
Officer. Officer. Officer.
Vessel Security Officer.............. Vessel Security Officer Qualified Individual... Ship Security Officer.
Facility Security Officer............ Facility Security Qualified Individual... None.
Officer.
Area Maritime Security (AMS) Port Security Committee Area Maritime Security None.
Committee. Advisory Committee.
----------------------------------------------------------------------------------------------------------------
We defined ``company'' broadly in order to ensure that we captured
all persons and/or legal entities that may in fact own or operate a
vessel or facility under this subchapter. We did not list out specific
legal entities, in order to avoid unintentionally omitting one, making
enforcement more difficult as new legal entities are created. We
interpret our definition to include the following legal entities:
Corporations, partnerships, business trusts, associations, joint
ventures, sole proprietorships, and unincorporated organizations.
We chose the term ``dangerous substances and devices'' for specific
reasons. The ISPS Code uses the phrase ``weapons, dangerous substances
or devices'' when identifying the intent of certain security measures.
We use dangerous substances and devices because these interim rules do
not prohibit weapons that are carried in accordance with the applicable
local, State, or federal laws. However, vessel or facility owners or
operators, in their own proprietary capacity, may prohibit lawfully
possessed weapons as a condition of carriage/entrance. They may also
develop and implement procedures whereby weapons and ammunition are
temporarily relinquished to the vessel or facility owner or operator
and placed in a secure location for the duration of the voyage or stay
at the facility. The Coast Guard will retain the authority to impose
restrictions on owners or operators when necessary to ensure safety or
security, or to secure the observance of rights or obligations of the
U.S., especially at heightened threat conditions. The Coast Guard is
working with DHS (e.g., TSA) to develop an intermodal policy regarding
items that passengers may be prohibited from carrying. The policy is
still being developed but may affect the carriage of certain weapons
onboard certain passenger vessels.
We defined ``international voyage'' to include those vessels that
solely navigate the Great Lakes and the St. Lawrence River as far east
as a straight line drawn from Cap des Rosiers to West Point, Antiocosti
Island and, on the north side of Anticosti Island, the 63rd meridian.
We chose to apply length thresholds using the definition of
``registered length'' instead of overall length, under the authority of
46 U.S.C. 70114(2). This was done to facilitate enforcement and
minimize confusion for vessel owners. Registered lengths are assigned
for all documented vessels of the U.S. and appear in Coast Guard
databases and on Certificates of Documentation. Conversely, overall
lengths can vary as a function of voyage type, and are not assigned for
all documented vessels of the U.S. In many cases the two definitions
coincide, and where they do not coincide, the registered length is
slightly less than overall length.
We have expressed gross tonnage thresholds in one of two ways. If
the threshold must be applied using the vessel's gross tonnage
measurement under 46 U.S.C. Chapter 143, Convention Measurement, the
threshold is expressed in terms of ``gross tonnage, ITC.'' If the
threshold must be applied using the vessel's gross tonnage measurement
under 46 U.S.C. Chapter 145, Regulatory Measurement, the threshold is
expressed in terms of ``gross register tons.'' For those vessels that
only have a gross tonnage, ITC measurement, yet the requirement calls
for a gross register tons threshold, then the gross tonnage, ITC
measurement must be used.
We have included a definition of the phrase ``Maritime Security
(MARSEC) Level,'' as well as definitions for each individual MARSEC
Level. MARSEC Level, in general, refers to the prevailing threat
environment to the maritime elements of the national transportation
system. As the threat of a transportation security incident increases,
the individual MARSEC Level moves higher, from one to three. Additional
discussion on the concept of MARSEC Levels and how they interplay with
DHS's HSAS is included below in the discussion for subpart B.
We have also defined a new document, called a Maritime Security
(MARSEC) Directive. All MARSEC Directives will qualify as SSI under 49
CFR 1520.7 of the Transportation Security Administration interim rule
on SSI, that will be published in the near future. Once published, we
will post a copy of this interim rule to the docket. The Coast Guard
MARSEC Directives will be consistent with the National Transportation
System Security Plan (NTSSP) and in accordance with Transportation
Security Directives, as established by the Transportation Security
Administration. Additional discussion on what a MARSEC Directive is,
how MARSEC Directives will be issued and the proper response to a
MARSEC Directive is included below in the discussion for subpart D.
We have adopted the MTSA definition for ``transportation security
incident.'' We also adopted the ISPS Code definitions for ``Company
Security Officer'' and ``Vessel Security Officer.'' Using these two
definitions as our basis, we were able to also define ``Facility
Security Officer.''
We have also defined the phrase ``waters subject to the
jurisdiction of the U.S.'' to include the navigable waters of the U.S.,
the Exclusive Economic Zone (EEZ), the seabed and subsoil of the OCS of
the U.S. and the resources thereof and the waters adjacent thereto.
Subpart A section 101.110 sets the applicability for all of
subchapter H. As stated, it is very broad, covering all vessels,
structures, and facilities of any kind, located in, on, or adjacent to
waters subject to the jurisdiction of the U.S. This broad application
is necessary to cover all entities affected by at least one part of new
subchapter H. Each individual part contains a separate applicability
section, which is more
[[Page 39268]]
narrow than that contained in the General Provisions of part 101.
In section 101.115 we have incorporated by reference the ISPS Code,
2003 Edition. Specifically, we are incorporating the amendments adopted
on 12 December 2002 to the Annex to The International Convention for
SOLAS, 1974 and the ISPS Code, parts A and B, also adopted on 12
December 2002. The material is incorporated for all of subchapter H.
Sections 101.120 and 101.125 of subpart A reflect the flexibility
that the Coast Guard has tried to build into these regulations. Section
101.120(a) reflects one of the SOLAS amendments, and allows the U.S. to
agree upon alternative security arrangements with other SOLAS
contracting governments, but only to cover short, international voyages
on fixed routes between facilities subject to the jurisdiction of the
U.S. and facilities subject to the jurisdiction of the other
contracting government. Any vessel covered by one of the agreements is
prohibited from engaging in any vessel-to-vessel activity, unless it
would be conducting the vessel-to-vessel activity with another vessel
covered by the same agreement.
Section 101.120(b)-(c) allows applications for approval of
Alternative Security Programs. As noted in the discussion of comments
section above, we received many comments supporting the idea of
allowing vessels or facilities to submit security plans or programs
that meet, as an example, an industry standard, instead of requiring
them to follow the plan requirements included in this subchapter,
SOLAS, or ISPS Code, parts A and B. We have, accordingly, built this
flexibility into the regulation. Once an Alternative Security Program
is approved, it will be added to Section 101.125. An up-to-date list
will also be kept by G-MP, and will be accessible on the Internet.
Section 101.120(c) details the information that must be included in
an application for approval. Part of that application includes an
assessment of what vessels or facilities may use the proposed
Alternative Security Program. This is important because not all
Alternative Security Program will be appropriate for all vessels or
facilities. For example, not all approved Alternative Security Programs
for facilities will fit the security planning requirements necessary
for a CDC facility. As part of the approval process, the Commandant
will indicate, in his approval letter, those types of vessels or
facilities that may use the approved Alternative Security Programs.
Section 101.130 allows the Commandant to accept equivalent security
measures, so long as they are at least as effective as those that are
mandated in subchapter H, SOLAS, or ISPS Code, parts A and B. This
allowance is made for both vessels and facilities required to have
security programs under parts 104, 105, or 106. Equivalent security
measures differ from Alternative Security Programs. Once an Alternative
Security Program is approved, any vessel or facility that meets the
approval qualifications may meet the provisions of the Alternative
Security Program in lieu of meeting the security plan requirements of
the applicable part of this subchapter. Equivalent security measures,
once approved, are only approved for the particular vessel or facility
making the application.
Equivalent security measures are those distinct security measures,
such as fences or alarm systems, which may be required within a
security plan. Requests for approval of equivalent security measures
should be made at the time that a vessel or facility is submitting
their security plan for approval, and they should be made to the
appropriate plan approval authority under part 104, 105, or 106.
Part 101--Subpart B--Maritime Security Levels
The SOLAS Amendments and ISPS Code lay out a series of requirements
for Contracting Governments and Administrations to mandate security
levels that are appropriate for their vessels and ports. The Coast
Guard is implementing these requirements in coordination with the HSAS.
Homeland Security Presidential Directive (HSPD)-3 defines a five-tiered
system for setting threat levels. We are implementing MARSEC Levels,
which directly correspond to the security levels as discussed in the
SOLAS amendments and the ISPS Code. The MARSEC Levels will be linked to
the HSAS as shown in the table below. This table is also included in
the regulation itself.
Table 5.--Relation Between HSAS, MARSEC Levels and SOLAS-Required Security Levels
----------------------------------------------------------------------------------------------------------------
Homeland security advisory Equivalent maritime security (MARSEC) Equivalent SOLAS-required security
system (HSAS) threat condition level level
----------------------------------------------------------------------------------------------------------------
Low: Green..................... Maritime Security Level 1.............. Security Level 1.
Elevated: Blue.................
Guarded: Yellow................
----------------------------------------------------------------------------------------------------------------
High: Orange................... Maritime Security Level 2.............. Security Level 2.
----------------------------------------------------------------------------------------------------------------
Severe: Red.................... Maritime Security Level 3.............. Security Level 3.
----------------------------------------------------------------------------------------------------------------
At all times, the Commandant retains the discretion to adjust the
MARSEC Level when necessary to address any particular concerns or
circumstances related to the maritime elements of the national
transportation system. Additionally, the COTP retains the authority to
temporarily raise the MARSEC Level for his/her AOR, or a specific
segment thereof, when necessary to address exigent circumstances
immediately affecting the security of the maritime elements of the
national transportation system within his/her AOR.
Part 101--Subpart C--Communication
Subpart C, section 101.300 details the methods the COTP will use to
communicate changes in the MARSEC Level. Note that individual ATMS
Plans may outline additional communication methods that are particular
to the Plan's covered area. It also details the threat information that
the COTP will, when appropriate, communicate to the port stakeholders,
vessels, and facilities located within his or her AOR. Finally, this
section requires vessel and facility security plan holders to confirm
that they have implemented the measures and/or actions in their
security plans that correspond to the MARSEC Level.
Subpart C, section 101.305 describes the reporting requirements
placed on vessel and facility security plan holders. First, it requires
that they report suspicious activities that may result in a
transportation security incident. These reports are to be made to the
National Response Center (NRC), and the
[[Page 39269]]
regulation lists several methods of contacting the NRC. We also require
that security plan holders call the NRC to report breaches of security.
This captures a broader range of activities that, while not severe
enough to pose a threat of a transportation security incident, are
still considered serious. Examples of breaches of security include
attempts to smuggle dangerous substances or devices onto a facility or
vessel, attempts to break into the facility or vessel, or attempts to
tamper with, alter, or mix cargos. They would not, however, include
acts of vandalism.
It is advised, although not required, that vessel and facility
security plan holders familiarize themselves with the type of
information that will be asked of them when placing a call to the NRC.
They may do this by visiting the NRC's Web site at http://www.nrc.uscg.mil
, clicking on ``Services,'' then clicking on ``Online
Reporting.'' This will call up a menu of several different types of
incidents, such as vessel, pipeline, and aircraft. Clicking on any of
these types will open the reporting form.
This section also encourages other persons or entities to call the
NRC to report suspicious activities that may result in a security
incident.
Vessel and facility security plan holders are also required to
report the onset of an actual transportation security incident to their
local COTP or, if a facility regulated by part 106 of this subchapter,
their District Commander. They must also immediately begin implementing
the provisions of their security plan, including contacting any other
individuals or entities (such as the NRC or local authorities) listed
within their security plan.
Section 101.310 of subpart C lists two methods of communication,
alert systems and AIS, which may be used to augment the communications
methods listed in a vessel's security plan. Alert systems are discussed
in more detail in part 104 of this subchapter; AIS is covered in 33 CFR
parts 26, 161, 164 and 165.
Part 101--Subpart D--Control Measures for Security
This section also explicitly states that the provisions of
subchapter H do not limit the powers conferred by any other law or
regulation upon any Coast Guard commissioned, warrant, or petty
officer.
Subpart D, section 101.405 describes when the Coast Guard will
issue a Maritime Security (MARSEC) Directive. MARSEC Directives will
set mandatory measures that all defined entities must meet in a
specified time. These entities will also be required to verbally
confirm, to the local COTP or District Commander (as appropriate),
receipt of the MARSEC Directive, as well as specify the method by which
the mandatory measures have been (or will be) met. This section also
builds in some flexibility by allowing the MARSEC Directive recipient
to submit proposed equivalent security measures to the local COTP or
District Commander (as appropriate), if the MARSEC Directive recipient
is unable to implement the measures mandated in the MARSEC Directive.
However, the entity will only be able to propose such alternatives for
the length of time specified in the MARSEC Directive, and he/she will
be required to implement any alternative measure that the COTP does
approve.
The Coast Guard plans to use MARSEC Directives to mandate
additional security measures that are SSI. They may be applicable to
all maritime elements of the national transportation system, or they
may impose additional security measures on specific maritime elements
of the national transportation system. As stated, only the Commandant
or his/her delegate will issue these MARSEC Directives at the national
level. All MARSEC Directives will be designated and disseminated as
SSI, in accordance with 49 CFR part 1520 (to be amended by the
Transportation Security Administration). As a result, the MARSEC
Directives will only be issued to those persons who can demonstrate
that they are a covered person and that they have a need to know, as
those terms are defined in the SSI regulation. Company, Vessel, and
Facility Security Officers should familiarize themselves with the SSI
regulation.
When a new MARSEC Directive is issued, the Coast Guard plans to
publish, in the Federal Register and through other means (local notices
to mariners, press releases, etc.), that it has issued a new MARSEC
Directive. The MARSEC Directives will be individually numbered, and
will be assigned to a series that corresponds with the part of this
subchapter to which the MARSEC Directive refers. For example, the first
MARSEC Directive addressing a new requirement for vessels regulated
under part 104 of this subchapter would be identified as MARSEC
Directive 104-01.
Upon receiving notice that a new MARSEC Directive has been issued,
affected entities would contact or be contacted by their local COTP
(or, if appropriate, their District Commander) to receive a copy of the
MARSEC Directive. The COTP or District Commander will confirm, prior to
distributing the MARSEC Directive, that the requesting entity is a
covered person with a need to know, and that the requesting entity will
safeguard the MARSEC Directive as SSI. Thus, continuing with the
example from the previous paragraph, upon receiving notice that a
MARSEC Directive in the 104 series has been issued, owners and
operators of vessels covered by part 104 of this subchapter would need
to contact their local COTP to obtain a copy of the MARSEC Directive.
They would then be required to comply with the MARSEC Directive, or
follow the procedures set out in the MARSEC Directive for gaining
approval of an equivalent security measure. COTPs may also use the AMS
Committee as a mechanism for disseminating the MARSEC Directive to
those with a need to know.
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 safety of waterfront facilities 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 exercising the Coast
Guard's authorities in 46 U.S.C. Chapter 701, to ensure that that
Chapter's security requirements are met.
The MARSEC Directives will provide specific instruction to the
regulated maritime community to achieve the performance standards
required by this subchapter and 46 U.S.C. Chapter 701. For example, the
plans required by 46 U.S.C. 70103 are not subject to public disclosure,
in accordance with 46 U.S.C. 70103(d), and contain SSI that, if
disclosed, could be used to subvert or exploit the security program for
vessels, facilities, OCS facilities, or ports. This could include
passenger screening levels, means of monitoring restricted areas, and
other requirements that may be necessary to ensure that the security
plans remain viable. Like civil aviation security, these specific
requirements cannot be placed in a public regulation and are better
suited for issuance through a MARSEC Directive that is itself not
subject to public disclosure.
Since MARSEC Directives would be issued when necessary to protect
national security and to preserve the rights and obligations of the
U.S. with
[[Page 39270]]
regarding maritime security, the Coast Guard has determined that the
issuance of MARSEC Directives do not fall within the requirements of
the Administrative Procedure Act by virtue of the military and foreign
affairs exemption (5 U.S.C. 553(a)(1)). Furthermore, the basis for the
MARSEC Directive would also constitute ``good cause'' within the
meaning of the Administrative Procedure Act (5 U.S.C. 553(b)(3)(B) and
(d)(3)) regarding notice and comment rulemaking and effective dates
since it would be contrary to the public interest and impracticable to
provide SSI relating to maritime security and methods of detection,
deterrence, and response in a public forum.
Subpart D, section 101.410 lists examples of the types of control
and compliance measures that a COTP may take on vessels and/or
facilities within his/her AOR that are not in compliance with
subchapter H. The lists of measures are not meant to be exhaustive.
This section also notes that the COTP may impose one or more of these
control and compliance measures on a vessel that is in compliance with
subchapter H, if that vessel has called on a facility that is not in
compliance, or if it has called on a port that does not maintain
adequate security measures to ensure that the level of security
achieved by subchapter H has not been compromised.
Section 101.415 outlines the penalty provisions that may be taken
against persons for violating the provisions of this subchapter. Civil
and criminal penalties may be imposed under 33 U.S.C. 1232 or 50 U.S.C.
192, as appropriate, for violations of control and compliance measures,
including COTP orders and security zones. This simply restates the
current law applicable under the Magnuson Act, 590 U.S.C. 191,
implemented at 33 CFR part 6, and the Ports and Waterways Safety Act,
33 U.S.C. 1221 et seq., implemented in part at 33 CFR parts 160 and
165. Pursuant to 46 U.S.C. 70117, civil penalties may also be assessed
for non-compliance with any other requirement in this subchapter,
including those imposed by a MARSEC Directive.
Finally, section 101.420 outlines the appeal rights available to
persons directly affected by a decision or action taken by the COTP or
the Commanding Officer of the Marine Safety Center.
Part 101--Subpart E--Other Provisions
Subpart E sets out the remaining regulations that apply to all of
subchapter H that do not fit in any of the subparts discussed above. We
have reserved the first section in this subpart for procedures for
authorizing a Recognized Security Organization (RSO). As noted above in
the discussion of comments, the Coast Guard is authorized, under SOLAS,
to delegate its assessment and plan approval authority to an RSO. The
Coast Guard has decided to retain this authority for the time being. We
may, however, delegate some (or all) of this authority to RSOs in the
future. As a result, we are reserving this section for outlining the
procedures an organization will need to follow in order to qualify as
an RSO in the future.
Section 101.505 describes the purpose behind a Declaration of
Security (DoS). A DoS is intended to clarify the specific security
responsibilities of a vessel and a facility (or another vessel) with
which it will be conducting some activity. It will be used to eliminate
situations where confusion leads the vessel to believe that the
facility (or other vessel) will take care of certain security measures,
while the facility (or other vessel) believes that the vessel will take
care of the same security measure. Parts 104 through 106 of subchapter
H describe in detail the who, what, where, when and how of completing a
DoS for their respective regulated entities. Additionally, to ensure
that vessels and facilities coordinate security during special marine
events such as festivals that draw large numbers of people to the
waterfront or vessels that wish to enter port with a higher MARSEC
Level than what has been set for the port, we have included a provision
to ensure the COTP's ability to mandate a DoS.
Section 101.510 of subpart E lists the various assessment tools
that may be used to meet the risk assessment requirements in parts 103
through 106 of this subchapter. This list is provided to ensure that
security assessments done to meet these requirements are consistent
with other modal assessments and are sufficient enough to enable the
development of security plans. We have been working with other agencies
to develop assessment tools that are sensitive to a diversity of
transportation modes to ensure equity of security throughout the entire
National transportation system. We anticipate that eventually one
security assessment tool will be mandated for all transportation modes.
In the interim, the list provided in Section 101.510 enables the
maritime security provisions to advance until the national
transportation security assessment mandate is complete. Even when a
national transportation security assessment is in place, we intend to
provide a ``grandfather clause'' to those security assessments done to
meet the maritime security requirements found elsewhere in today's
Federal Register.
The Transportation Security Administration intends to publish a
Notice of Proposed rulemaking with request for comment that promulgates
rules in 49 CFR part 1574 to manage the access to and use of a user-
friendly risk-based vulnerability assessment tool. This tool will be
the result of inter-agency work, under the leadership of TSA thus far
to establish a national transportation security assessment. It will be
designed as a self-assessment tool for the owner or operator, and is
one of the tools an owner or operator may use to meet the risk
assessment requirements in parts 103, 104, 105 and 106 of subchapter H.
Section 101.515 of subpart E prescribes the minimum requirements
for personal identification credentials for purposes of access control
under this subchapter. As discussed in the Discussion of Comments to
Maritime Security Public Meetings section above, these requirements are
consistent with the Coast Guard's previous policy notice on maritime
credentials acceptable under 33 CFR part 125.
Part 102--National Maritime Transportation Security Plan
Part 102 in subchapter H has been reserved for the National
Maritime Transportation Security (NMTS) Plan that is required under 46
U.S.C. 70103a. At this time we are coordinating the implementation of
the National Maritime Security Advisory Committee (NMSAC) as required
in the MTSA (46 U.S.C. 70112a). While the development of this
overarching plan and the establishment of the National Advisory
Committee are key sustaining National Maritime Security initiatives, we
do not feel their development is necessary prior to the implementation
of these interim rule requirements. We believe the concepts found in
the interim rules published in today's Federal Register represent the
foundation of National Maritime Transportation Security and intend to
incorporate them in the development of the NMTS plan. We will
promulgate the NMTS plan and Advisory Committee charter and membership
requirements under a separate notice and rulemaking in the future.
Additionally, the Aviation and Transportation Security Act (ATSA)
assigns responsibility for managing the security of the nation's
transportation modes to the Transportation Security Administration. In
its role as the National Transportation System Security Manager,
Transportation Security Administration intends to
[[Page 39271]]
develop a National Transportation System Security Plan (NTSSP) to
define national strategy and provide tools to help manage risk across
the nation's multi-modal transportation system.
The NTSSP will provide a comprehensive and systematic approach to
the national transportation system's risk management. It will set the
framework and establish goals for National Security Plans for each of
the transportation modes.
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. You may inspect this material at U.S. Coast Guard
Headquarters where indicated under ADDRESSES. Copies of the material
are available from the sources listed in Sec. 101.115.
This interim rule incorporates by reference the International Ship
and Port Facility Security (ISPS) Code, 2003 Edition. Specifically, we
are incorporating the amendments adopted on 12 December 2002 to the
Annex to The International Convention for the Safety of Life at Sea
(SOLAS), 1974 and The International Code For the Security of Ships and
of Port Facilities, also adopted on 12 December 2002. The material is
incorporated for all of subchapter H. The interim rule titled
``Automatic Identification System; Vessel Carriage Requirement'' (USCG-
2003-14757), found elsewhere in today's Federal Register, also
incorporates material by reference.
Regulatory Assessment
This interim rule is a ``significant regulatory action'' under
section 3(f) of Executive Order 12866, Regulatory Planning and Review,
and has been reviewed by the Office of Management and Budget (OMB)
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 DHS. A draft assessment is
available in the docket as indicated under ADDRESSES.
Summary of Changes in the Cost Assessment From the Meeting Notice
In a December 30, 2002, meeting notice [67 FR 79742], the Coast
Guard presented a preliminary cost assessment estimating the cost to
the regulated public of implementing MTSA, the ISPS code, and complying
with applicable security NVICs. We asked for comments on our estimates
and have changed portions of our cost assessments for the interim rules
based on those comments.
We received a wide range of comments on the preliminary assessment.
In some areas, commenters believed we were overestimating costs, in
other areas they believed we were understating costs, and in many
instances commenters believed we had accurately accounted for costs. As
a result of the comments, our cost estimates for vessels and facilities
increased, while our estimates for ports remained about the same.
Additionally, the summary of costs we present below includes estimates
for the OCS interim rule and the AIS interim rule, which were not part
of our original assessment for the meeting notice.
For vessels, we decreased the population of U.S. flag SOLAS fishing
vessels from 39 to 1. We also removed domestic MODUs and domestic
freight barges regulated under 46 CFR subchapter I from our assessment,
as the Coast Guard is not regulating these vessels in these interim
rules. We added 70 foreign vessels that make port calls in the United
States but are not subject to SOLAS. We increased the cost for hand-
held radios and portable vapor detectors based on information received
in the comments.
In our preliminary assessment, we assumed that equipment would be
replaced every 10 years. Several commenters believed that this
underestimated the replacement costs for several of the pieces of
equipment that we considered. Specifically, several commenters stated
some equipment would be broken, lost, or stolen before the 10-year
replacement. We agreed that we should increase equipment costs to
account for these situations. Because the replacement cycle of
equipment will vary considerably among types of equipment and its uses,
we increased the annual operations and maintenance (O&M) costs to more
accurately capture increased replacement and repair. In the preliminary
cost estimates, we assumed that annual O&M costs would be 5 percent of
the initial capital purchase cost. In the Cost Assessment for this
rulemaking, we increased annual O&M to 10 percent of the initial
purchase cost. We also changed the annual cost for Vessel Security
Officers to more accurately reflect the annual costs of the mariners
that will perform security duties aboard their vessels. The net effect
of these changes was to increase initial and annual costs for vessels.
Based on comments, we found there was some confusion about labor
costs. Labor costs presented in our assessment are not the hourly wage
paid to the employee; rather, they are the fully loaded cost to the
company of carrying the position and providing employee benefits.
Additionally, there was some confusion about our estimates for Vessel
Security Assessments and Vessel Security Plans. We believe that most
companies will choose to develop one overarching assessment or plan,
and then take that overarching document and add documentation specific
to each vessel in their fleets. The ``incremental'' costs that we
presented for each vessel type in the preliminary assessment
represented the cost to add the vessel to the overarching company
assessment or plan. Thus, in our preliminary cost assessment it may
have seemed that it cost only a few dollars to develop a Vessel
Security Assessment or Vessel Security Plan for a particular vessel. In
fact, we believe that Vessel Security Assessments and Vessel Security
Plans will represent a substantial initial cost, but adding vessels to
an overarching plan will be a smaller, incremental cost. For annual
updates to Vessel Security Assessments and Vessel Security Plans, we
have increased the time required to amend these documents from 1 minute
per vessel (0.02 hours) to 15 minutes per vessel (0.25 hours). The net
effect of this change was to increase our annual costs slightly.
For facilities, we added certain fleeting areas to our population
based on our assessment of the risk these areas pose. We also increased
equipment costs for most items for Group A facilities in response to
several comments. (We recognize that not all facilities will incur the
same cost for personnel salaries, hire the same number of security
guards, or spend the same amount of time drafting Facility Security
Assessments and Facility Security Plans. For the purpose of this
assessment, we have divided the facility population in two groups. One
group is composed of one third of all facilities and will have more
security duties, hire more guards, and spend more time drafting
Facility Security Assessments and Facility Security Plans than the
other group that is composed of the remaining two-thirds of the total
population. Facilities in the first group are addressed in this
assessment as ``A'' and facilities in the second group as ``B.'') As in
our vessel assessment, we increased annual O&M costs from 5 percent of
purchase cost to 10 percent of purchase cost to more accurately capture
annual repair and replacement. We received several comments on the cost
estimated for security guards. Commenters stated the $40,000 annual
cost presented was either too low, too high, or accurate. We believe
these diverging opinions could be explained by the cost of living and
the
[[Page 39272]]
corresponding wage variation among different regions of the country.
The costs presented in the assessment are national averages, and we
fully expect different regions of the country to pay different wage
rates. However, we do believe that the $40,000 per year estimated per
security guard may be lower than what could be expected. Consequently,
we have revised our estimate from $40,000 per year to $50,000 per year
per security guard. Finally, we included the cost of making Declaration
of Security (DoS) annual. The net effect of these changes was to
increase initial and annual costs for facilities.
A detailed summary of the changes made from the December 2002
meeting notice and the Cost Assessment for the interim rules for
security is presented in Table 6.
Table 6.--Summary of Changes Made to Cost Assessment
----------------------------------------------------------------------------------------------------------------
December 2002 meeting
Item notice Cost assessment for IR Comment
----------------------------------------------------------------------------------------------------------------
Population of fishing vessels........ 39 vessels............. 1 vessel............... Revised based on new
information from
commenter.
Population of domestic MODUs......... 159 vessels............ 0 vessels.............. IR will not be
applicable to domestic
MODUs.
Population of domestic freight barges 262 vessels............ 0 vessels.............. IR will not be
applicable to domestic
freight barges
regulated under
Subchapter I.
Population of foreign non-SOLAS 0 vessels.............. 70 vessels............. IR will be applicable
vessels. to these vessels
regulated under
Subchapter I.
Hand-held radio (vessels)............ $200 per item.......... $500 per item.......... Revised based on
comment.
Portable vapor detector (vessels).... $8,000 per item........ $15,000 per item....... Revised based on
comment.
O&M costs for equipment (vessels).... 5% of purchase cost.... 10% of purchase cost... Revised based on
comment.
Annual incremental costs to amend $0.02 per vessel per $25 per vessel per year Revised based on
VSAs and VSPs. year. comment.
Vessel Security Officers............. $5,000 per vessel per $8,500 per non-towing Revised based on
year, non-towing vessel per year; comment.
vessels only. $4,250 per towing
vessel per year.
Fleeting areas....................... 0 areas................ 600 areas.............. Population added to IR.
Communications system (group A $300,000 per facility.. $400,000 per facility.. Revised based on
facilities). comment.
Gates (group A facilities)........... $100,000 per facility.. $200,000 per facility.. Revised based on
comment.
CCTVs (group A facilities)........... $130,000 per facility.. $260,000 per facility.. Revised based on
comment.
Lights (group A facilities).......... $200,000 per facility.. $400,000 per facility.. Revised based on
comment.
Fencing (group A facilities)......... $500,000 per facility.. $750,000 per facility.. Revised based on
comment.
Hand-held radio (group A and B $200 per item.......... $500 per item.......... Revised based on
facilities). comment.
O&M costs for equipment (facilities). 5% of purchase cost.... 10% of purchase cost... Revised based on
comment.
Security guard....................... $40,000 per year....... $50,000 per year....... Revised based on
comment.
Declaration of Security.............. No cost estimated...... Cost estimated......... Added requirement to
IR.
----------------------------------------------------------------------------------------------------------------
Cost Assessment Summary
The following summary presents the estimated costs of complying
with the interim rules on Vessel Security, Facility Security, OCS
Facility Security, Area Maritime Security, and AIS, which are published
elsewhere in today's Federal Register.
For the purposes of good business practice, or to comply with
regulations promulgated by other Federal and State agencies, many
companies already have spent a substantial amount of money and
resources to upgrade and improve security. The costs shown in this
summary do not include the security measures these companies have
already taken to enhance security.
We realize that every company engaged in maritime commerce would
not implement the interim rules exactly as presented in this
assessment. Depending on each company's choices, some companies could
spend much less than what is estimated herein, while others could spend
significantly more. In general, we assume that each company would
implement the interim rules based on the type of vessels or facilities
it owns or operates, whether it engages in international or domestic
trade, and the ports where it operates.
This assessment presents the estimated cost if vessels, facilities,
OCS facilities, and ports are operating at MARSEC Level 1, the current
level of operations since the events of September 11, 2001. We also
estimate the costs for operating for a brief period at MARSEC Level 2,
an elevated level of security. We also discuss the potential effects of
operating at MARSEC Level 3, the highest level of maritime security.
We do not anticipate that implementing the interim rules will
require additional manning aboard vessels or OCS facilities; existing
personnel can assume the duties envisioned. For facilities, we
anticipate additional personnel in the form of security guards that can
be hired through contracting with a private firm specializing in
security.
Based on our assessment, the first-year cost of implementing the
interim rules is approximately $1.507 billion. Following initial
implementation, the annual cost is approximately $884 million, with
costs of present value (PV) $7.348 billion over the next 10 years
(2003-2012, 7 percent discount rate). Estimated costs are as follows.
Vessel Security
Implementing the interim rule will affect about 10,300 U.S. flag
SOLAS, domestic (non-SOLAS), and foreign non-SOLAS vessels. The first-
year cost of purchasing and installing equipment, hiring security
officers, and preparing paperwork is approximately $218 million.
Following initial implementation, the annual cost is approximately $176
million. Over the
[[Page 39273]]
next 10 years, the cost would be PV $1.368 billion.
Facility Security
Implementing the interim rule will affect about 5,000 facilities.
The first-year cost of purchasing and installing equipment, hiring
security officers, and preparing paperwork is an estimated $1.125
billion. Following initial implementation, the annual cost is
approximately $656 million. Over the next 10 years, the cost would be
PV $5.399 billion.
OCS Facility Security
Implementing the interim rule will affect about 40 OCS facilities
under U.S. jurisdiction. The first-year cost of purchasing equipment
and preparing paperwork is an estimated $3 million. Following initial
implementation, the annual cost is approximately $5 million. Over the
next 10 years, the cost would be PV $37 million.
Port Security
Implementing the interim rule will affect about 47 maritime areas
containing 361 ports. The initial cost of the startup period (June
2003-December 2003) is estimated to be $120 million. Following the
startup period, the first year of implementation (2004) is estimated to
be $106 million. After the first year of implementation, the annual
cost is approximately $46 million. Over the next 10 years, the cost
would be PV $477 million.
Automatic Identification System (AIS)
Implementing the interim rule will affect about 4,600 U.S. flag
SOLAS and domestic (non-SOLAS) vessels in VTS areas. The first-year
cost of purchasing equipment and training for U.S. vessels (SOLAS and
domestic) is approximately $40 million. Following initial
implementation, the annual cost for U.S. vessels is approximately $1
million. Over the next 10 years, the cost for these vessels would be PV
$66 million (with replacement of the units occurring 8 years after
installation).
An additional 70 foreign flag, non-SOLAS vessels will also be
affected. The first-year cost of purchasing and installing equipment
and training personnel for these vessels is approximately $0.6 million.
Following initial implementation, the annual cost is less than $0.1
million. Over the next 10 years, the cost for these vessels would be PV
$1 million.
Maritime Security Levels 2 and 3
MARSEC Level 2 is a heightened threat of a security incident, and
intelligence indicates that terrorists are likely to be active within a
specific target or class of targets. MARSEC Level 3 is a probable or
imminent threat of a security incident. MARSEC Levels 2 and 3 costs are
not included in the above summaries because of the uncertainty that
arises from the unknown frequency of elevation of the MARSEC Level and
the unknown duration of the elevation.
The costs to implement MARSEC Levels 2 and 3 security measures in
response to these increased threats do not include the costs of
security measures and resources needed to meet MARSEC Level 1
(summarized above) and will vary depending on the type of security
measures required to counter the specific nature of higher levels of
threat. Such measures could include additional personnel or assigning
additional responsibilities to current personnel for a limited period
of time.
We did not consider capital improvements, such as building a fence,
to be true MARSEC Levels 2 or 3 costs. The nature of the response to
MARSEC Levels 2 and 3 is intended to be a quick surge of resources to
counter an increased threat level. Capital improvements generally take
time to plan and implement and could not be in place rapidly. Capital
improvement costs are estimated under MARSEC Level 1 costs.
We did not calculate MARSEC Level 2 cost for the AMS because this
will be primarily a cost to the Coast Guard for administering the
heightened MARSEC Level in port and maritime areas.
In order to estimate a cost for MARSEC Level 2, we made assumptions
about the length of time the nation's ports can be expected to operate
at the heightened security level. For the purpose of this assessment
only, we estimate costs to the nation's ports elevating to MARSEC Level
2 twice a year, for 3 weeks each time, for a total period of 6 weeks at
MARSEC Level 2. Again, this estimate of 6 weeks annually at MARSEC
Level 2 is for the purposes of illustrating the order of magnitude of
cost we can expect. Our estimate should not be interpreted as the Coast
Guard's official position on how often the nation's ports will operate
at MARSEC Level 2.
We estimate that there are Vessel Security Officers aboard all U.S.
flag SOLAS vessels and most domestic vessels. We estimate that there
will also be key crewmembers that can assist with security duties
during MARSEC Level 2 aboard these vessels. We assume that both Vessel
Security Officers and key crewmembers will work 12 hours a day (8 hours
of regular time, 4 hours of overtime) during the 42 days that the ports
are at MARSEC Level 2. We then estimate daily and overtime rates for
Vessel Security Officers and key crewmembers. Given these assumptions,
we estimate that elevating the security level to MARSEC Level 2 twice a
year each for 21 days will cost vessel owners and operators
approximately $235 million annually.
We estimate that every regulated facility will have a Facility
Security Officer assigned to it. We also estimate that there will also
be a key person that can assist with security duties during MARSEC
Level 2 at each facility. We assume that both Facility Security
Officers and key personnel will work 12 hours a day (8 hours of regular
time, 4 hours of overtime). For facilities that have to acquire
security personnel for MARSEC Level 1, we assumed that during MARSEC
Level 2 the number security guards would double for this limited time.
For the facilities for which we did not assume any additional guards at
MARSEC Level 1, we assumed that during MARSEC Level 2 these would have
to acquire a minimal number of security guards. Given these
assumptions, we estimate that elevating the security level to MARSEC
Level 2 twice a year each for 21 days will cost facility owners and
operators approximately $424 million annually.
We estimate that elevating the security level to MARSEC Level 2
twice a year each for 21 days will cost the regulated OCS facility
owners and operators approximately $4 million annually. This cost is
primarily due to increased cost for OCS Facility Security Officers and
available key security personnel.
Other costs that we did not attempt to quantify include possible
operational restrictions such as limiting cargo operations to daylight
hours or greatly limiting access to facilities or vessels.
MARSEC Level 3 will involve significant restriction of maritime
operations that could result in the temporary closure of individual
facilities, ports, and waterways either in a region of the U.S. or the
entire nation. Depending on the nature of the specific threat, this
highest level of maritime security may have a considerable impact on
the stakeholders in the affected ports or maritime areas. The ability
to estimate the costs to business and government for even a short
period at MARSEC Level 3 is virtually impossible with any level of
accuracy or analytical confidence due to the infinite range of threats
and scenarios that could trigger MARSEC Level 3.
The length and the duration of the increased security level to
MARSEC Level 3 will be entirely dependent on the intelligence received
and the scope
[[Page 39274]]
of transportation security incidents or disasters that have already
occurred or are imminent. 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 sustained port
closures would greatly outweigh the direct costs to individual
businesses.
The U.S. Marine Transportation System
The cost of MARSEC Level 3 can best be appreciated by the benefits
of the U.S. MTS to the economy. Maritime commerce is the lifeblood of
the modern U.S. trade-based economy, touching virtually every sector of
our daily business and personal activities.
Annually, the U.S. MTS contributes significant benefits to the
economy. More than 95 percent of all overseas trade that enters or
exits this country moves by ship, including 9 million barrels of oil a
day that heats homes and businesses and fuels our automobiles.\1\ In
addition, over $738 billion of goods are transported annually through
U.S. ports and waterways.\2\
---------------------------------------------------------------------------
\1\ See MTS Fact Sheet available at www.dot.gov/mts/fact_sheet.htm
.
\2\ See 2000 Exports and Imports by U.S. Customs District and
Port available at www.marad.dot.gov/statististcs/usfwts/.
---------------------------------------------------------------------------
Other benefits include the water transportation and shipping
industry that generates over $24 billion in revenue and provides nearly
$3 billion of payrolls.\3\ The annual economic impact of cruise lines,
passengers, and their suppliers is more than $11.6 billion in revenue
and 176,000 in jobs for the U.S. economy.\4\ Our national defense is
also dependent on the MTS. Approximately 90 percent of all equipment
and supplies for Desert Storm were shipped from strategic ports via our
inland and coastal waterways.\5\
---------------------------------------------------------------------------
\3\ U.S. Census Bureau, 1997 Economic Census, Transportation and
Warehousing-Subject Series.
\4\ See footnote 1.
\5\ See footnote 1.
---------------------------------------------------------------------------
The Ripple Effect of Port Closures on the U.S. Economy
We could expect not just the immediate effects of port and waterway
closures on waterborne commerce as described above, but also serious
``ripple effects'' for the entire U.S. economy that could last for
months or more, including delayed commerce, decreased productivity,
price increases, increased unemployment, unstable financial markets
worldwide, and economic recession.
To appreciate the impact, we can examine one sector of the economy:
agriculture. Many farm exports are just-in-time commodities, such as
cotton shipped to Japan, South Korea, Indonesia, and Taiwan. Asian
textile mills receive cotton on a just-in-time basis because these
mills do not have warehousing capabilities. A port shutdown may cause
U.S. cotton wholesalers to lose markets, as textile producers find
suppliers from other nations. U.S. wholesalers would lose sales until
shipping is restored.
Another example is the auto industry. A recent shutdown of West
Coast ports due to a labor dispute caused an automobile manufacturer to
delay production because it was not receiving parts to make its cars.
We can see that a port shutdown can create a domino effect, from
stalling the distribution of materials to causing stoppages and delays
in production to triggering job losses, higher consumer prices, and
limited selection.
The macroeconomic effects of the recent shutdown of West Coast
ports, while not in response to a security threat, are a good example
of the economic costs that we could experience when a threat would
necessitate broad-based port closures. The cost estimates of this 11-
day interruption in cargo flow and closure of 29 West Coast ports have
ranged between $140 million to $2 billion a day, but are obviously high
enough to cause significant losses to the U.S. economy.\6\
---------------------------------------------------------------------------
\6\ See Lost Earnings Due to West Coast Port Shutdown--
Preliminary Estimate, Patrick Anderson, October 7, 2002, available
at http://www.AndersonEconomicGroup.com; An Assessment of the Impact
of West Coast Container Operations and the Potential Impacts of an
Interruption of Port Operations, 2000, Martin Associates, October
23, 2001, available from the Pacific Maritime Association. These two
studies were widely quoted by most U.S. news services including Sam
Zuckerman, San Francisco Chronicle, October 2002.
---------------------------------------------------------------------------
Another proxy for the estimated costs to society of nationwide port
closures and the consequential impact on the U.S. supply chain can be
seen by a recent war game played by businesses and government
agencies.\7\ In that recent war game, a terrorist threat caused 2 major
ports to close for 3 days, and then caused a nationwide port closure
for an additional 9 days. This closure spanned only 12 days, but
resulted in a delay of approximately 3 months to clear the resulting
containerized cargo backlog. The economic costs of the closings
attributable to manufacturing slowdowns and halts in production, lost
sales, and spoilage was estimated at approximately 58 billion. The
simulation gauged how participants would respond to an attack and the
ensuing economic consequences. Furthermore, a well-coordinated direct
attack of multiple U.S. ports could shutdown the world economy by
effectively halting international trade flows to and from the U.S.
market--the largest market for goods and services in the world.
---------------------------------------------------------------------------
\7\ The war game simulation was designed and sponsored by Booz
Allen Hamilton and The Conference Board, details available at http://www.boozallen.com/
.
---------------------------------------------------------------------------
We believe that the cost to the national economy of a port shutdown
due to extreme security threats, while not insignificant, would be
relatively small if it only persisted for a few days and involved very
few ports. However, if the interruption in cargo flows would persist
much longer than the 11-day shutdown recently experienced on the West
Coast, the economic loss is estimated to geometrically increase
(double) every additional 10 days the ports were closed.\8\ At a
certain point, companies would start declaring bankruptcies, people
would be laid off indefinitely, and the prices of goods would increase.
This effect would continue and intensify until alternate economic
activities took place, such as the unemployed finding less desirable
jobs or companies finding secondary lines of operations and suppliers.
Regardless, the economic hardship suffered by industry, labor, and the
loss of public welfare due to a sustained nationwide port shutdown may
have as significant an effect on the U.S. as the act of terror itself.
---------------------------------------------------------------------------
\8\ See Anderson footnote 6.
---------------------------------------------------------------------------
Benefit Assessment
Why We Measured Benefits Using the N-RAT
A team of experts considered the benefits of various security
measures that will be implemented and used the N-RAT to estimate the
reduction in risk associated with these security measures. Before the
results of this assessment are discussed, it is helpful to understand
why the Coast Guard chose this methodology to measure regulatory
benefits.
Traditionally, the Coast Guard's regulations intended to decrease
marine-related casualties, which in turn reduced number of injuries,
fatalities, and pollution (primarily oil) spilled into the marine
environment. These sorts of safety and environmental benefits could be
estimated with some degree of accuracy; the well-documented and
detailed history of maritime incidents provides a solid foundation to
estimate the ``costs to society'' that could be
[[Page 39275]]
avoided through enhanced requirements. By reviewing incident trends
over time and the costs to society imposed by these incidents, the
Coast Guard could determine if changes to the status quo were
justified.
Consequently, our environmental protection and marine safety
regulations were generally accompanied by estimates of reduced
injuries, fatalities, and pollution attributable to a specific
regulation. For example, the recently promulgated Final Rule titled
Tank Level or Pressure Monitoring Devices (published September 17,
2002) [67 FR 58515] estimated a benefit to society of approximately 900
barrels of oil not spilled into the environment over the period of
assessment, though the regulation was not expected to prevent injuries
or fatalities.
Estimating the benefits of new security requirements, however, is
more challenging. Incident causation probabilities, based on historic
trends and analysis, can be estimated in a manner that terrorist
activities cannot. Currently, we believe it is virtually impossible to
estimate benefits for security regulations in the way benefits are
estimated for non-security regulations. We do not believe we can state
with any degree of certainty that a specific security regulation would
save a number or a range of fatalities, as no viable baseline exists
from which to project these benefits. We realize though, that the
burden on the regulated public of bearing the costs of new security
regulations will be high, and we must balance the benefits of these
regulations with their associated costs. We must also consider the
consequences of taking no action.
We do not assume the benefits of the interim rules automatically
offset their costs simply because these rules are security related. By
using RBDM, however, we have measured the relative risk reduction
resulting from these security measures, permitting us to estimate the
``value'' these regulations will have. In considering the applicability
of the interim rules, we have strived to apply requirements to those
maritime entities that pose the greatest risk, and the N-RAT was an
important and powerful tool in our Risk-Based Decision Making process.
We believe that through better-informed judgments that came, in part,
from the results of the N-RAT, we are appropriately balancing the
benefits of the interim rules with their costs.
Results of the N-RAT Based Assessment
The expert review and scoring process was complex and challenging.
The fundamental principles of the N-RAT, however, are relatively simple
to understand. For each applicable entity in the interim rules, we
assigned an annual ``baseline'' risk score. We then considered the
requirements of the six interim rules described herein and assigned an
annual post-regulation risk score. The benefits attributable to part
101--General Provisions--were not considered separately because it is
an overarching section for all the subparts. The benefits for part 101
are represented in each of the remaining security subparts. The
difference between the baseline risk score and the post-regulation risk
score is the quantified benefit of the remaining five interim rules.
Besides the complex procedure to assign risk scores to the
applicable maritime entities, we were faced with the further
complication that rules will have multiple benefits; thus, we have the
potential to double-count the risk reduced. For example, if the owner
or operator of a petroleum tanker enhances his vessel's security, this
will also benefit the receiving facility where this vessel transfers
its cargo. The reverse is also true: If the owner or operator of the
facility enhances his facility's security, this will benefit the
vessels that arrive there. We recognize that the interim rules are a
``family'' of rulemakings that will reinforce and support one another
in their implementation. We must ensure, however, that risk reduction
that is credited in one rulemaking is not also credited in another.
To avoid double-counting risk reduced, we first determined the
``universe'' of total benefits of all security measures recently
implemented, about to be implemented, or planned for future
rulemakings. Examples of other rules that were considered in the
``universal'' risk points are the Coast Guard's Notice of Arrival (96-
Hour Rule), Custom's rulemaking regarding cargo manifests (24-Hour
Rule), and a future rulemaking for transportation security cards. We
then apportioned the total benefits to specific regulations. By
approaching the benefits assessment in this manner, we were able to
address the limitations of the N-RAT. The threat, vulnerability, and
consequence scores are whole numbers between 1 and 5. The N-RAT did not
allow us to score a relatively minor security initiative only 0.1 or
0.5 of a risk point, even though the initiative contributes to risk
reduction. When we considered the rules as a group, however, security
initiatives that could not be scored individually due to the limited
granularity of the N-RAT can be scored when considered with the rest of
the rules because of their cumulative risk reduction benefits.
Once we determined the total risk reduction benefits of the all the
applicable rules, we ``apportioned'' the total risk points back to each
individual regulation. We avoided double-counting benefits among the
rulemakings as each risk point was counted only once. While there was
subjectivity in this apportionment of risk points back to the
individual rulemakings, we believe this methodology's strength of
allowing a systematic quantification of risk reduction for each
regulation outweighs its subjectivity.
Results of the N-RAT
We determined annual risk points reduced for each of the six
interim rules using the N-RAT. Table 7 presents the annual risk points
reduced by the rules. As shown, the interim rule for vessel security
plans reduces the most risk points annually. The interim rule for AIS
reduces the least.
Table 7.--Annual Risk Points Reduced by the Interim Rules
----------------------------------------------------------------------------------------------------------------
Annual risk points reduced by rulemaking
-------------------------------------------------------------------------------
Maritime entity Vessel Facility OCS facility
security plans security plans security plans AMS plans AIS
----------------------------------------------------------------------------------------------------------------
Vessels......................... 778,633 3,385 3,385 3,385 1,448
Facilities...................... 2,025 469,686 .............. 2,025 ..............
OCS Facilities.................. 41 .............. 9,903 .............. ..............
Port Areas...................... 587 587 .............. 129,792 105
-----------------
Total....................... 781,285 473,659 13,288 135,202 1,553
----------------------------------------------------------------------------------------------------------------
[[Page 39276]]
Once we determined the annual risk points reduced, we discounted
these estimates to their PV (7 percent discount rate, 2003-2012) so
that they could be compared to the costs. We presented the cost
effectiveness, or dollars per risk point reduced, in two ways: First,
we compared first-year cost to first-year benefit, because first-year
cost is the highest in our assessment as companies develop security
plans and purchase equipment. Second, we compared the 10-year PV cost
to the 10-year PV benefit. The results of our assessment are presented
in Table 8.
Table 8.--First-Year and 10-Year PV Cost and Benefit of the Interim Rules
----------------------------------------------------------------------------------------------------------------
Interim rule
-------------------------------------------------------------------------------
Item Vessel Facility OCS facility
security plans security plans security plans AMS plans AIS \1\
----------------------------------------------------------------------------------------------------------------
First-Year Cost (millions)...... $218 $1,125 $3 $120 $41
First-Year Benefit.............. 781,285 473,659 13,288 135,202 1,553
First-Year Cost Effectiveness ($/ $279 $2,375 $205 $890 $26,391
Risk Point Reduced)............
10-Year PV Cost (millions)...... $1,368 $5,399 $37 $477 $42
10-Year PV Benefit.............. 5,871,540 3,559,655 99,863 1,016,074 11,671
10-Year PV Cost Effectiveness ($/ $233 $1,517 $368 $469 $3,624
Risk Point Reduced)............
----------------------------------------------------------------------------------------------------------------
\1\ Cost less monetized safety benefit.
As shown, the rulemaking for vessel security plans is the most cost
effective. This is due to the nature of the security measures we expect
vessels will have to take to ensure compliance as well as the level of
risk that is reduced by those measures. Facility security plans are
less cost effective because they incur higher costs for capital
purchases (such as gates and fences) and require more labor (such as
security guards) to ensure security. OCS Facility and AMS Plans are
almost equally cost effective; the entities these rules cover do not
incur the highest expenses for capital equipment, but on this relative
scale, they do not receive higher risk reduction in the N-RAT, either.
The AIS rulemaking is the least cost effective, though it is important
to remember that AIS provides increased maritime domain awareness and
navigation safety, which is not robustly captured using the N-RAT.
Small Entities
Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have
considered whether these interim rules would have a significant
economic impact on a substantial number of small entities. The term
``small entities'' comprises small businesses, not-for-profit
organizations that are independently owned and operated and are not
dominant in their fields, and governmental jurisdictions with
populations of less than 50,000. These interim rules do not require a
general notice of proposed rulemaking and, therefore, are exempt from
the requirements of the Regulatory Flexibility Act.
Although these interim rules are exempt, we have reviewed each rule
for potential economic impacts on small entities. We found that the
facilities, vessels, and AIS rules may have a significant impact on a
substantial number of small entities. However, we did certify no
significant economic impact on a substantial number of small entities
for the Area Maritime Security and OCS facility security rules.
Additional information on small entity impacts is available in the
Regulatory Assessment or Cost Assessment for each interim rule in their
associated docket, where indicated in the ADDRESSES section for each
interim rule.
Assistance for Small Entities
Under section 213(a) of the Small Business Regulatory Enforcement
Fairness Act of 1996 (Public Law 104-121), we want to assist small
entities in understanding these rules so that they can better evaluate
the effects on them and participate in the rulemaking. If these rules
affect your small business, organization, or governmental jurisdiction
and you have questions concerning their provisions or options for
compliance, please consult CDR Suzanne Englebert, G-M-1 by telephone
202-267-1103, toll-free telephone 1-800-842-8740 ext. 7-1103, or by
electronic mail msregs@comdt.uscg.mil. Small businesses may send comments on the actions of Federal
employees who enforce, or otherwise determine compliance with, Federal
regulations to the Small Business and Agriculture Regulatory
Enforcement Ombudsman and the Regional Small Business Regulatory
Fairness Boards. The Ombudsman evaluates these actions annually and
rates each agency's responsiveness to small business. If you wish to
comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR
(1-888-734-3247).
Collection of Information
The interim rules published in today's Federal Register contain
collection of information requirements under the Paperwork Reduction
Act of 1995 (44 U.S.C. 3501-3520). As defined in 5 CFR 1320.3(c),
``collection of information'' comprises reporting, recordkeeping,
monitoring, posting, labeling, and other, similar actions. The rules
modify two existing OMB-approved collections--1625-0100 [formerly 2115-
0557] and 1625-0077 [formerly 2115-0622]. Details of the revision to
1625-0100 can be found in the ``Vessel Security'' [USCG-2003-14749]
interim rule published elsewhere in today's Federal Register. A summary
of the revised collection 1625-0077 follows.
TITLE: Security Plans for Ports, Vessels, Facilities, and Outer
Continental Shelf Facilities and Other Security-Related Requirements.
OMB Control Number: 1625-0077.
Summary of the Collection of Information: The Coast Guard requires
security plans and communication procedures for U.S. ports and maritime
areas as detailed in the interim rules. These rules provide a framework
to ensure adequate security planning, drilling, and communication
procedures for Ports, Vessels, Facilities, and OCS Facilities.
Need for Information: The primary need for information would be to
determine if stakeholders are in compliance with security standards.
Proposed Use of Information: This information can help to determine
appropriate security measures for the affected population. This
information also can help determine, in the case of a transportation
security incident, whether failure to meet these regulations
contributed to the transportation security incident.
[[Page 39277]]
Description of the Respondents: This rule will affect owners,
operators, and personnel operating in the U.S. Marine Transportation
System. The respondents are regulated public and private stakeholders
as detailed in the interim rules.
Number of Respondents: 16,607 total respondents for the interim
rules.
Frequency of Response: Varies as specified in each interim rule.
Security assessments and security plans are submitted for approval
initially, and reviewed annually. After the first year, drills
generally occur at various schedules. All frequencies are at the
discretion of the COTP. Depending on the port or maritime area, there
may be additional requirements and reporting frequencies.
Burden of Response: Varies per each type of regulated population in
the interim rules.
Estimate of Total Annual Burden: The existing OMB-approved
collection total annual burden is 1,811 hours. These interim rules are
a program change that will increase the total annual burden. The new
estimated total collection burden is indicated in the table below.
Table 9.--Summary of Initial and Annual Burden Hours and Costs
------------------------------------------------------------------------
Burden (hours)
-------------------------
Initial Annual
------------------------------------------------------------------------
Port Security (AMS)........................... 1,203,200 488,800
Vessel Security............................... 135,269 11,700
Facility Security............................. 528,240 608,187
OCS Facility Security......................... 3,200 160
--------------
Subtotal.................................. 1,869,909 1,108,847
Pre 9/11 Security............................. * 3,549 3,549
--------------
Total..................................... 1,873,458 1,112,396
------------------------------------------------------------------------
* As pre-9/11/01 security requirements are existing regulations, they
are included in both initial and annual burden calculations. (Note
burden revised from year 2000 Estimate).
As required by the Paperwork Reduction Act of 1995 (44 U.S.C.
3507(d)), we have submitted a copy of the interim rules to the OMB for
its review of the collection of information. Due to the circumstances
surrounding this temporary rule, we asked for ``emergency processing''
of our request. We received OMB approval for these collections of
information on June 16, 2003. They are valid until December 31, 2003.
We ask for public comment on the collection of information to help
us determine how useful the information is; whether it can help us
perform our functions better; whether it is readily available
elsewhere; how accurate our estimate of the burden of collection is;
how valid our methods for determining burden are; how we can improve
the quality, usefulness, and clarity of the information; and how we can
minimize the burden of collection.
If you submit comments on the collection of information, submit
them both to OMB and to the Docket Management Facility where indicated
under ADDRESSES, by the date under DATES.
You need not respond to a collection of information unless it
displays a currently valid control number from OMB. We received OMB
approval for these collections of information on June 16, 2003. They
are valid until December 31, 2003.
Federalism
Executive Order 13132 requires USCG to develop an accountable
process to ensure ``meaningful and timely input by State and local
officials in the development of regulatory policies that have
federalism implications.'' ``Policies that have federalism
implications'' is defined in the Executive Order to include regulations
that have ``substantial direct effects on the States, on the
relationship between the national government and the States, or on the
distribution of power and responsibilities among the various levels of
government.'' Under the Executive Order, USCG may construe a Federal
statute to preempt State law only where, among other things, the
exercise of State authority conflicts with the exercise of Federal
authority under the Federal statute.
This action has been analyzed in accordance with the principles and
criteria in the Executive Order, and it has been determined that this
interim rule does have Federalism implications or a substantial direct
effect on the States. This rulemaking requires those States which own
or operate vessels or facilities that may be involved in a
transportation security incident to conduct vulnerability assessments
of their vessels and facilities and to develop security plans for their
protection. These plans must contain measures that will be implemented
at each of the three MARSEC Levels, and must be reviewed and approved
by the Coast Guard.
Additionally, the Coast Guard has reviewed the MTSA with a view to
whether we may construe it as non-preemptive of State authority over
the same subject matter. We have determined that it would be
inconsistent with the federalism principles stated in the Executive
Order to construe the MTSA as not preempting State regulations which
conflict with the regulations in this rulemaking. This is because
owners or operators of facilities and vessels that are subject to the
requirements for conducting vulnerability assessments, planning to
secure their facilities and vessels against threats revealed by those
assessments and complying with the standards, both performance and
specific construction, design, equipment and operating requirements,
must have one uniform, national standard which they must meet. Vessels
and shipping companies, particularly, would be confronted with an
unreasonable burden if they had to comply with varying requirements as
they moved from State to State. Therefore, we believe that the
federalism principles enunciated by the Supreme Court in U.S. v. Locke,
529 U.S. 89 (2000) regarding field preemption of certain State vessel
safety, equipment and operating requirements extends equally to this
rulemaking, especially regarding the longstanding history of
significant Coast Guard maritime security regulation and control of
vessels for security purposes. But, the same considerations apply to
facilities, at least insofar as a State law or regulation applicable to
the same subject for the purpose of protecting the security of the
facility would conflict with a federal regulation, i.e. it would either
actually conflict or would frustrate an over-riding federal need for
uniformity.
Finally, it is important to note that the regulations implemented
by this rulemaking bear on national and international commerce where
there is no constitutional presumption of concurrent State regulation.
Many aspects of these regulations are based on the U.S. international
treaty obligations regarding vessel and port facility security
contained in the International Convention for the SOLAS, 1974 and the
complementary ISPS Code. These international obligations reinforce the
need for uniformity regarding maritime commerce.
Notwithstanding the foregoing preemption determinations and
findings, the Coast Guard has consulted extensively with appropriate
State officials, as well as private stakeholders during the development
of this rule. Specifically, we have held seven public meetings across
the country with invitation letters to all State homeland security
representatives. Many State representatives attended these meetings and
submitted comments to the public notice docket that we have considered
for these interim rules. The State
[[Page 39278]]
comments ranged from State Boating Law Administrators concerns about
recreational boating impacts and security for smaller marinas to State
security representatives voicing concern about alignment with their
State maritime security requirements. We also presented the SOLAS
Amendments and ISPS Code, parts A and B, in the public notice and
requested comments from the State homeland security advisors at a
National Governors Association meeting on March 14, 2003. We encourage
States to send in comments specifically on this Federalism analysis.
Unfunded Mandates Reform Act
The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538)
requires Federal agencies to assess the effects of their discretionary
regulatory actions. In particular, the Act addresses actions that may
result in the expenditure by a State, local, or tribal government, in
the aggregate, or by the private sector of $100,000,000 or more in any
one year. This rule is exempted from assessing the effects of the
regulatory action as required by the Act because it is necessary for
the national security of the U.S. (2 U.S.C. 1503(5)).
Taking of Private Property
This rule will not effect a taking of private property or otherwise
have taking implications under Executive Order 12630, Governmental
Actions and Interference with Constitutionally Protected Property
Rights.
Civil Justice Reform
This rule meets applicable standards in sections 3(a) and 3(b)(2)
of Executive Order 12988, Civil Justice Reform, to minimize litigation,
eliminate ambiguity, and reduce burden.
Protection of Children
We have analyzed this rule under Executive Order 13045, Protection
of Children from Environmental Health Risks and Safety Risks. While
this rule is an economically significant rule, it does not create an
environmental risk to health or risk to safety that may
disproportionately affect children.
Indian Tribal Governments
This rule does not have tribal implications under Executive Order
13175, Consultation and Coordination with Indian Tribal Governments,
because it does not have a substantial disproportionate effect on one
or more Indian tribes, on the relationship between the Federal
Government and Indian tribes, or on the distribution of power and
responsibilities between the Federal Government and Indian tribes. We
would appreciate any comments, however, if you disagree with this
conclusion.
Energy Effects
We have analyzed this rule under Executive Order 13211, Actions
Concerning Regulations That Significantly Affect Energy Supply,
Distribution, or Use. We have determined that it is not a ``significant
energy action'' under that order. Although it is a ``significant
regulatory action'' under Executive Order 12866, it is not likely to
have a significant adverse effect on the supply, distribution, or use
of energy. Additionally, the Administrator of the Office of Information
and Regulatory Affairs has not designated it as a significant energy
action. Therefore, it does not require a Statement of Energy Effects
under Executive Order 13211.
This rule has a positive effect on the supply, distribution, and
use of energy. The rule provides for security assessments, plans,
procedures, and standards, which will prove beneficial for the supply,
distribution, and use of energy at increased levels of maritime
security.
Environment
We have considered the environmental impact of this rule and
concluded that under figure 2-1, paragraph (34)(a), (34)(c), (34)(d),
and (34)(e) of Commandant Instruction M16475.lD, this rule is
categorically excluded from further environmental documentation. A
``Categorical Exclusion Determination'' is available in the docket
where indicated under ADDRESSES or SUPPLEMENTARY INFORMATION.
This final rule concerns security assessments, plans, training,
security positions, and organizations along with vessel equipment
requirements that will contribute to a higher level of marine safety
and security for U.S. ports. A ``Categorical Exclusion Determination''
is available in the docket where indicated under ADDRESSES or
SUPPLEMENTARY INFORMATION.
This rulemaking will not significantly impact the coastal zone.
Further, the rulemaking and the execution of this rule will be done in
conjunction with appropriate State coastal authorities. The Coast Guard
will, therefore, comply with the requirements of the Coastal Zone
Management Act while furthering its intent to protect the coastal zone.
Trade Impact Assessment
The Trade Agreement Act of 1979 prohibits federal agencies from
engaging in any standards or related activities that create unnecessary
obstacles to the foreign commerce of the U.S. Legitimate domestic
objectives, such as safety and security, are not considered unnecessary
obstacles. The Act also requires consideration of international
standards and, where appropriate, that they be the basis for U.S.
standards. We have assessed the potential effect of this regulation,
and have determined that it would likely create obstacles to the
foreign commerce of the U.S.. However, because these regulations are
being put in place in order to further a legitimate domestic objective,
namely to increase the security of the U.S., any obstacles created by
the regulation are not considered unnecessary obstacles.
List of Subjects
33 CFR Part 101
Facilities, Harbors, Incorporation by reference, Maritime security,
Ports, Security assessments, Security plans, Reporting and
recordkeeping requirements, Vessels, Waterways.
33 CFR Part 102
Maritime security.
0
For the reasons discussed in the preamble, the Coast Guard is adding
subchapter H consisting of part 101 and reserved part 102 to 33 CFR
chapter I to read as follows:
SUBCHAPTER H--MARITIME SECURITY
PART 101--GENERAL PROVISIONS
Subpart A--General
Sec.
101.100 Purpose.
101.105 Definitions.
101.110 Applicability.
101.115 Incorporation by reference.
101.120 Alternatives.
101.125 Approved Alternative Security Programs. [Reserved]
101.130 Equivalent security measures.
Subpart B--Maritime Security (MARSEC) Levels
101.200 MARSEC Levels.
101.205 Department of Homeland Security alignment.
Subpart C--Communication (Port-Facility-Vessel)
101.300 Preparedness communications.
101.305 Reporting.
101.310 Additional communication devices.
Subpart D--Control Measures for Security
101.400 Enforcement.
101.405 Maritime Security (MARSEC) Directives.
101.410 Control and Compliance Measures.
101.415 Penalties.
101.420 Right to appeal.
[[Page 39279]]
Subpart E--Other Provisions
101.500 Procedures for authorizing a Recognized Security
Organization (RSO). [RESERVED]
101.505 Declaration of Security (DoS).
101.510 Assessment Tools.
101.515 Personal Identification.
Authority: 33 U.S.C. 1231, 1226; 46 U.S.C. Chapter 701; 50
U.S.C. 191, 192; E.O. 12656, 3 CFR 1988 Comp. p. 585; 33 CFR 1.05-1,
6.04-11, 6.14, 6.16, and 6.19; Department of Homeland Security
Delegation No. 0170.
PART 101--GENERAL PROVISIONS
Subpart A--General
Sec. 101.100 Purpose.
(a) The purpose of this part is:
(1) To implement portions of the maritime security regime required
by the Maritime Transportation Security Act of 2002, as codified in 46
U.S.C. Chapter 701;
(2) To align, where appropriate, the requirements of domestic
maritime security regulations with the international maritime security
standards in the International Convention for the Safety of Life at
Sea, 1974 (SOLAS Chapter XI-2) and the International Code for the
Security of Ships and of Port Facilities, parts A and B, adopted on 12
December 2002; and
(3) To ensure security arrangements are as compatible as possible
for vessels trading internationally.
(b) For those maritime elements of the national transportation
system where international standards do not directly apply, the
requirements in this subchapter emphasize cooperation and coordination
with local port community stakeholders, and are based on existing
domestic standards, as well as established industry security practices.
Sec. 101.105 Definitions.
Unless otherwise specified, as used in this subchapter:
Alternative Security Program means a third-party or industry
organization developed standard that the Commandant has determined
provides an equivalent level of security to that established by this
subchapter.
Area Commander means the U.S. Coast Guard officer designated by the
Commandant to command a Coast Guard Area as described in 33 CFR part 3.
Area Maritime Security (AMS) Assessment means an analysis that
examines and evaluates the infrastructure and operations of a port
taking into account possible threats, vulnerabilities, and existing
protective measures, procedures and operations.
Area Maritime Security (AMS) Committee means the committee
established pursuant to 46 U.S.C. 70112(a)(2)(A). This committee can be
the Port Security Committee established pursuant to Navigation and
Vessel Inspection Circular (NVIC) 09-02, available from the cognizant
Captain of the Port (COTP) or at http://www.uscg.mil/hq/g-m/nvic.
Area Maritime Security (AMS) Plan means the plan developed pursuant
to 46 U.S.C. 70103(b). This plan may be the Port Security plan
developed pursuant to NVIC 09-02 provided it meets the requirements of
part 103 of this subchapter.
Area of Responsibility (AOR) means a Coast Guard area, district,
marine inspection zone or COTP zone described in 33 CFR part 3.
Audit means an evaluation of a security assessment or security plan
performed by an owner or operator, the owner or operator's designee, or
an approved third-party, intended to identify deficiencies, non-
conformities and/or inadequacies that would render the assessment or
plan insufficient.
Barge means a non-self-propelled vessel (46 CFR 24.10-1).
Barge fleeting facility means a commercial area, permitted by the
Army Corps of Engineers, as provided in 33 CFR part 322, the purpose of
which is for the making up, breaking down, or staging of barge tows.
Bulk or in bulk means a commodity that is loaded or carried on
board a vessel without containers or labels, and that is received and
handled without mark or count.
Bunkers means a vessel's fuel supply.
Captain of the Port (COTP) means the local officer exercising
authority for the COTP zones described in 33 CFR part 3. The COTP is
the Federal Maritime Security Coordinator described in 46 U.S.C.
70103(a)(2)(G) and also the Port Facility Security Officer as described
in the ISPS Code, part A.
Cargo means any goods, wares, or merchandise carried, or to be
carried, for consideration, whether directly or indirectly flowing to
the owner, charterer, operator, agent, or any other person interested
in the vessel, facility, or OCS facility.
Certain Dangerous Cargo (CDC) means the same as defined in 33 CFR
160.203.
Commandant means the Commandant of the U.S. Coast Guard.
Company means any person or entity that owns any facility, vessel,
or OCS facility subject to the requirements of this subchapter, or has
assumed the responsibility for operation of any facility, vessel, or
OCS facility subject to the requirements of this subchapter, including
the duties and responsibilities imposed by this subchapter.
Company Security Officer (CSO) means the person designated by the
Company as responsible for the security of the vessel or OSC facility,
including implementation and maintenance of the vessel or OSC facility
security plan, and for liaison with their respective vessel or facility
security officer and the COTP.
Contracting Government means any government of a nation that is a
signatory to SOLAS, other than the U.S.
Cruise ship means any vessel over 100 gross register tons, carrying
more than 12 passengers for hire which makes voyages lasting more than
24 hours, of which any part is on the high seas. Passengers from cruise
ships are embarked or disembarked in the U.S. or its territories.
Cruise ships do not include ferries that hold Coast Guard Certificates
of Inspection endorsed for ``Lakes, Bays, and Sounds'', that transit
international waters for only short periods of time on frequent
schedules.
Dangerous substances or devices means any material, substance, or
item that may cause damage or injury to any person, vessel, facility,
harbor, port, or waters subject to the jurisdiction of the U.S. and
that:
(1) Is unlawful to possess under applicable Federal, State, or
local law;
(2) That has not been approved for entry onto the vessel, facility,
or OCS facility by the owner or operator of the vessel, facility, or
OCS facility; or
(3) Has not been approved for entry onto a public area or property
in a port by the government or property management official with
jurisdictional responsibility of that area.
Declaration of Security (DoS) means an agreement executed between
the responsible Vessel and Facility Security Officer, or between Vessel
Security Officers in the case of a vessel-to-vessel interface, that
provides a means for ensuring that all shared security concerns are
properly addressed and security will remain in place throughout the
time a vessel is moored to the facility or for the duration of the
vessel-to-vessel interface, respectively.
District Commander means the U.S. Coast Guard officer designated by
the Commandant to command a Coast Guard District described in 33 CFR
part 3.
Drill means a training event that tests at least one component of
the AMS, vessel, or facility security plan and is used to maintain a
high level of security readiness.
Exercise means a comprehensive training event that involves several
of the functional elements of the AMS, vessel, or facility security
plan and tests
[[Page 39280]]
communications, coordination, resource availability, and response.
Facility means any structure or facility of any kind located in,
on, under, or adjacent to any waters subject to the jurisdiction of the
U.S. and used, operated, or maintained by a public or private entity,
including any contiguous or adjoining property under common ownership
or operation.
Facility Security Assessment (FSA) means an analysis that examines
and evaluates the infrastructure and operations of the facility taking
into account possible threats, vulnerabilities, consequences, and
existing protective measures, procedures and operations.
Facility Security Officer (FSO) means the person designated as
responsible for the development, implementation, revision and
maintenance of the facility security plan and for liaison with the COTP
and Company and Vessel Security Officers.
Facility Security Plan (FSP) means the plan developed to ensure the
application of security measures designed to protect the facility and
its servicing vessels or those vessels interfacing with the facility,
their cargoes, and persons on board at the respective MARSEC Levels.
Ferry means a vessel which is limited in its use to the carriage of
deck passengers or vehicles or both, operates on a short run on a
frequent schedule between two or more points over the most direct water
route, other than in ocean or coastwise service.
Foreign vessel means a vessel of foreign registry or a vessel
operated under the authority of a country, except the U.S., that is
engaged in commerce.
Gross register tons (GRT) means the gross ton measurement of the
vessel under 46 U.S.C. chapter 145, Regulatory Measurement. For a
vessel measured under only 46 U.S.C. chapter 143, Convention
Measurement, the vessel's gross tonnage, ITC is used to apply all
thresholds expressed in terms of gross register tons.
Gross tonnage, ITC (GT ITC) means the gross tonnage measurement of
the vessel under 46 U.S.C. chapter 143, Convention Measurement. Under
international conventions, this parameter may be referred to as ``gross
tonnage (GT).''
Hazardous materials means hazardous materials subject to regulation
under 46 CFR parts 148, 150, 151, 153, or 154, or 49 CFR parts 171
through 180.
Infrastructure means facilities, structures, systems, assets, or
services so vital to the port and its economy that their disruption,
incapacity, or destruction would have a debilitating impact on defense,
security, the environment, long-term economic prosperity, public health
or safety of the port.
International voyage means a voyage between a country to which
SOLAS applies and a port outside that country. A country, as used in
this definition, includes every territory for the internal relations of
which a contracting government to the convention is responsible or for
which the United Nations is the administering authority. For the U.S.,
the term ``territory'' includes the Commonwealth of Puerto Rico, all
possessions of the United States, and all lands held by the U.S. under
a protectorate or mandate. For the purposes of this subchapter, vessels
are considered as being on an ``international voyage'' when solely
navigating the Great Lakes and the St. Lawrence River as far east as a
straight line drawn from Cap des Rosiers to West Point, Anticosti
Island and, on the north side of Anticosti Island, the 63rd meridian.
ISPS Code means the International Ship and Port Facility Security
Code, as incorporated into SOLAS.
Maritime Security (MARSEC) Directive means an instruction issued by
the Commandant, or his/her delegee, mandating specific security
measures for vessels and facilities that may be involved in a
transportation security incident.
Maritime Security (MARSEC) Level means the level set to reflect the
prevailing threat environment to the marine elements of the national
transportation system, including ports, vessels, facilities, and
critical assets and infrastructure located on or adjacent to waters
subject to the jurisdiction of the U.S.
MARSEC Level 1 means the level for which minimum appropriate
protective security measures shall be maintained at all times.
MARSEC Level 2 means the level for which appropriate additional
protective security measures shall be maintained for a period of time
as a result of heightened risk of a transportation security incident.
MARSEC Level 3 means the level for which further specific
protective security measures shall be maintained for a limited period
of time when a transportation security incident is probable or
imminent, although it may not be possible to identify the specific
target.
Master means the holder of a valid license that authorizes the
individual to serve as a Master, operator, or person in charge of the
rated vessel. For the purposes of this subchapter, Master also includes
the Person in Charge of a MODU, and the operator of an uninspected
towing vessel.
OCS Facility means any artificial island, installation, or other
complex of one or more structures permanently or temporarily attached
to the subsoil or seabed of the OCS, erected for the purpose of
exploring for, developing or producing oil, natural gas or mineral
resources. This definition includes all mobile offshore drilling units
(MODUs) not covered under part 104 of this subchapter, when attached to
the subsoil or seabed of offshore locations, but does not include
deepwater ports, as defined by 33 U.S.C. 1502, or pipelines.
Operator, Uninspected Towing Vessel means an individual who holds a
license described in 46 CFR 15.805(a)(5) or 46 CFR 15.810(d).
Owner or operator means any person or entity that maintains
operational control over any facility, vessel, or OCS facility subject
to the requirements of this subchapter.
Passenger vessel means--
(1) On an international voyage, a vessel carrying more than 12
passengers; and
(2) On other than an international voyage:
(i) A vessel of at least 100 gross register tons carrying more than
12 passengers, including at least one passenger-for-hire;
(ii) A vessel of less than 100 gross register tons carrying more
than 6 passengers, including at least one passenger-for-hire;
(iii) A vessel that is chartered and carrying more than 12
passengers;
(iv) A submersible vessel that is carrying at least one passenger-
for-hire; or
(v) A wing-in-ground craft, regardless of tonnage, that is carrying
at least one passenger-for-hire.
Passenger-for-hire means a passenger for whom consideration is
contributed as a condition of carriage on the vessel, whether directly
or indirectly flowing to the owner, charterer, operator, agent, or any
other person having an interest in the vessel.
Registered length means the registered length as defined in 46 CFR
part 69.
Restricted areas mean the infrastructures or locations identified
in an area, vessel, or facility security assessment or by the operator
that require limited access and a higher degree of security protection.
The entire facility may be designated the restricted area, as long as
the entire facility is provided the appropriate level of security.
Review and approval means the process whereby Coast Guard officials
evaluate a plan or proposal to determine
[[Page 39281]]
if it complies with this subchapter and/or provides an equivalent level
of security.
Screening means a reasonable examination of persons, cargo,
vehicles, or baggage for the protection of the vessel, its passengers
and crew. The purpose of the screening is to secure the vital
government interest of protecting vessels, harbors, and waterfront
facilities from destruction, loss, or injury from sabotage or other
causes of similar nature. Such screening is intended to ensure that
dangerous substances and devices, or other items that pose a real
danger of violence or a threat to security are not present.
Security sweep means a walkthrough to visually inspect unrestricted
areas to identify unattended packages, briefcases, or luggage and
determine that all restricted areas are secure.
Security system means a device or multiple devices designed,
installed and operated to monitor, detect, observe or communicate about
activity that may pose a security threat in a location or locations on
a vessel or facility.
Sensitive security information (SSI) means information within the
scope of 49 CFR part 1520.
SOLAS means the International Convention for the Safety of Life at
Sea Convention, 1974, as amended.
Survey means an on-scene examination and evaluation of the physical
characteristics of a vessel or facility, and its security systems,
processes, procedures, and personnel.
Transportation security incident (TSI) means a security incident
resulting in a significant loss of life, environmental damage,
transportation system disruption, or economic disruption in a
particular area.
Unaccompanied baggage means any baggage, including personal
effects, which are not with the passenger, crewmember or any other
person at the point of inspection or screening prior to boarding the
vessel.
Vessel-to-facility interface means the interaction that occurs when
a vessel is directly and immediately affected by actions involving the
movement of persons, goods or the provisions of facility services to or
from the vessel.
Vessel-to-port interface means the interaction that occurs when a
vessel is directly and immediately affected by actions involving the
movement of persons, goods or the provisions of port services to or
from the vessel.
Vessel Security Assessment (VSA) means an analysis that examines
and evaluates the vessel and its operations taking into account
possible threats, vulnerabilities, consequences, and existing
protective measures, procedures and operations.
Vessel Security Plan (VSP) means the plan developed to ensure the
application of security measures designed to protect the vessel and the
facility that the vessel is servicing or interacting with, the vessel's
cargoes, and persons on board at the respective MARSEC Levels.
Vessel Security Officer (VSO) means the person onboard the vessel,
accountable to the Master, designated by the Company as responsible for
security of the vessel, including implementation and maintenance of the
Vessel Security Plan, and for liaison with the Facility Security
Officer and the vessel's Company Security Officer.
Vessel stores means--
(1) Materials that are on board a vessel for the upkeep,
maintenance, safety, operation or navigation of the vessel; and
(2) Materials for the safety or comfort of the vessel's passengers
or crew, including any provisions for the vessel's passengers or crew.
Vessel-to-vessel activity means any activity not related to a
facility or port that involves the transfer of goods or persons from
one vessel to another.
Waters subject to the jurisdiction of the U.S., for purposes of
this subchapter, means the navigable waters of the U.S., as defined in
46 U.S.C. 2101(17a); the Exclusive Economic Zone in respect to the
living and non-living resources therein; and in respect to facilities
located on the Outer Continental Shelf of the U.S., the waters
superadjacent thereto.
Sec. 101.110 Applicability.
Unless otherwise specified, this subchapter applies to vessels,
structures, and facilities of any kind, located under, in, on, or
adjacent to waters subject to the jurisdiction of the U.S.
Sec. 101.115 Incorporation by reference.
(a) Certain material is incorporated by reference into this
subchapter with the approval of the Director of the Federal Register
under 5 U.S.C. 552(a) and 1 CFR part 51. To enforce any edition other
than that specified in paragraph (b) of this section, the Coast Guard
must publish notice of change in the Federal Register and the material
must be available to the public. All approved material is on file at
the Office of the Federal Register, 800 North Capitol Street, NW.,
Suite 700, Washington, DC, and at the Office of the Coast Guard Port
Security Directorate (G-MP), Coast Guard Headquarters, 2100 Second
Street, SW., Washington, DC 20593-0001, and is available from the
sources indicated in paragraph (b) of this section.
(b) The materials approved for incorporation by reference in this
subchapter are as follows:
International Maritime Organization (IMO)
Publication Section, 4 Albert Embankment, London SE1 7SR, United
Kingdom.
Conference resolution 1, Adoption of 101.120; 101.310; 101.410;
amendments to the Annex to the 101.505; 104.105; 104.115;
International Convention for the Safety 104.120; 104.297; 104.400.
of Life at Sea, 1974, and amendments to
Chapter XI of SOLAS 1974, adopted
December 12, 2002, (SOLAS Chapter XI-1 or
SOLAS Chapter XI-2).
Conference resolution 2, Adoption of the 101.410; 101.505; 104.105;
International Code for the Security of 104.115; 104.120; 104.297;
Ships and of Port Facilities, parts A and 104.400.
B, adopted on December 12, 2002 (ISPS
Code).
Sec. 101.120 Alternatives.
(a) Alternative Security Agreements. (1) The U.S. may conclude in
writing, as provided in SOLAS Chapter XI-2, Regulation 11 (Incorporated
by reference, see Sec. 101.115), a bilateral or multilateral
agreements with other Contracting Governments to SOLAS on Alternative
Security Arrangements covering short international voyages on fixed
routes between facilities subject to the jurisdiction of the U.S. and
facilities in the territories of those Contracting Governments.
(2) As further provided in SOLAS Chapter XI-2, Regulation 11, a
vessel covered by such an agreement shall not conduct any vessel-to-
vessel activity with any vessel not covered by the agreement.
(b) Alternative Security Programs. (1) Owners and operators of
vessels and facilities required to have security plans under part 104,
105, or 106 of this subchapter, other than vessels that engage on
international voyages and facilities that serve only vessels on
international voyages, may meet an Alternative Security Program that
has been reviewed and approved by the Commandant (G-MP) as meeting the
requirements of part 104, 105, or 106, as applicable.
[[Page 39282]]
(2) Owners or operators must implement an approved Alternative
Security Program in its entirety to be deemed in compliance with either
part 104, 105, or 106.
(3) Owners or operators who have implemented an Alternative
Security Program must send a letter to the appropriate plan approval
authority under part 104, 105, or 106 of this subchapter identifying
which Alternative Security Program they have implemented, identifying
those vessels or facilities that will implement the Alternative
Security Program, and attesting that they are in full compliance
therewith. A copy of this letter shall be retained on board the vessel
or kept at the facility to which it pertains along with a copy of the
Alternative Security Program.
(c) Approval of Alternative Security Programs. You must submit to
the Commandant (G-MP) for review and approval the Alternative Security
Program and the following information to assess the adequacy of the
proposed Alternative Security Program:
(1) A list of the vessel and facility type that the Alternative
Security Program is intended to apply;
(2) A security assessment for the vessel or facility type;
(3) Explanation of how the Alternative Security Program addresses
the requirements of parts 104, 105, or 106, as applicable; and
(4) Explanation of how owners and operators must implement the
Alternative Security Program in its entirety, including performing an
operational and vessel or facility specific assessment and verification
of implementation.
(d) The Commandant (G-MP) will examine each submission for
compliance with this part, and either:
(1) Approve it and specify any conditions of approval, returning to
the submitter a letter stating its acceptance and any conditions, or
(2) Disapprove it, returning a copy to the submitter with a brief
statement of the reasons for disapproval.
Sec. 101.125 Approved Alternative Security Programs. [Reserved]
Sec. 101.130 Equivalent security measures.
(a) For any measure required by part 104, 105, or 106 of this
subchapter, the owner or operator may substitute an equivalent security
measure that has been approved by the Commandant (G-MP) as meeting or
exceeding the effectiveness of the required measure. The Commandant (G-
MP) may require that the owner or operator provide data for use in
assessing the effectiveness of the proposed equivalent security
measure.
(b) Requests for approval of equivalent security measures should be
made to the appropriate plan approval authority under parts 104, 105 or
106 of this subchapter.
Subpart B--Maritime Security (MARSEC) Levels
Sec. 101.200 MARSEC Levels.
(a) MARSEC Levels advise the maritime community and the public of
the level of risk to the maritime elements of the national
transportation system. Ports, under direction of the local COTP, will
respond to changes in the MARSEC Level by implementing the measures
specified in the AMS Plan. Similarly, vessels and facilities required
to have security plans under part 104, 105, or 106 of this subchapter
shall implement the measures specified in their security plans for the
applicable MARSEC Level.
(b) Unless otherwise directed, each port, vessel, and facility
shall operate at MARSEC Level 1.
(c) The Commandant will set the MARSEC Level consistent with the
equivalent Homeland Security Advisory System (HSAS) Threat Condition
and that Threat Condition's scope of application. Notwithstanding the
HSAS, the Commandant retains discretion to adjust the MARSEC Level when
necessary to address any particular security concerns or circumstances
related to the maritime elements of the national transportation system.
(d) The COTP may temporarily raise the MARSEC Level for the port, a
specific marine operation within the port, or a specific industry
within the port, when necessary to address an exigent circumstance
immediately affecting the security of the maritime elements of the
transportation system in his/her area of responsibility.
Sec. 101.205 Department of Homeland Security alignment.
The MARSEC Levels are aligned with the Department of Homeland
Security's Homeland Security Advisory System (HSAS), established by
Homeland Security Presidential Directive 3. Table 101.205, titled
``Relation between HSAS and MARSEC Levels'' in this section, shows this
alignment.
Table 101.205.--Relation Between HSAS and MARSEC Levels
------------------------------------------------------------------------
Homeland security advisory system Equivalent maritime security
(HSAS) threat condition (MARSEC) level
------------------------------------------------------------------------
Low: Green........................... MARSEC Level 1.
Elevated: Blue.......................
Guarded: Yellow......................
------------------------------------------------------------------------
High: Orange......................... MARSEC Level 2.
------------------------------------------------------------------------
Severe: Red.......................... MARSEC Level 3.
------------------------------------------------------------------------
Subpart C--Communication (Port--Facility--Vessel)
Sec. 101.300 Preparedness communications.
(a) Notification of MARSEC Level change. The COTP will communicate
any changes in the MARSEC Levels through a local Broadcast Notice to
Mariners, a Maritime Security Directive issued under section 101.405 of
this part, or as detailed in the AMS Plan.
(b) Communication of threats. When the COTP is made aware of a
threat that may cause a transportation security incident, the COTP
will, when appropriate, communicate to the port stakeholders, vessels,
and facilities in his or her AOR the following details:
(1) Geographic area potentially impacted by the probable threat;
(2) Any appropriate information identifying potential targets;
(3) Onset and expected duration of probable threat;
(4) Type of probable threat; and
(5) Required actions to minimize risk.
(c) Attainment. (1) Each owner or operator of a vessel or facility
required to have a security plan under parts 104 or 105 of this
subchapter affected by a change in the MARSEC Level must confirm to
their local COTP the attainment of measures or actions described in
their security plan and any other requirements imposed by the COTP that
correspond with the MARSEC Level being imposed by the change.
(2) Each owner or operator of a facility required to have a
security plan under part 106 of this subchapter affected by a change in
the MARSEC Level must confirm to their cognizant District Commander the
attainment of measures or actions described in their security plan and
any other requirements imposed by the District Commander or COTP that
correspond with the MARSEC Level being imposed by the change.
Sec. 101.305 Reporting.
(a) Notification of suspicious activities. An owner or operator
required to have a security plan under
[[Page 39283]]
part 104, 105, or 106 of this subchapter shall, without delay, report
activities that may result in a transportation security incident to the
National Response Center at the following toll free telephone: 1-800-
424-8802, direct telephone: 202-267-2675, fax: 202-267-2165, TDD: 202-
267-4477, or Email: lst-nrcinfo@comdt.uscg.mil. Any other person or entity is also encouraged to report activities
that may result in a transportation security incident to the National
Response Center.
(b) Notification of breaches of security. An owner or operator
required to have a security plan under parts 104, 105, or 106 of this
subchapter shall, without delay, report breaches of security to the
National Response Center via one of the means listed in paragraph (a)
of this section.
(c) Notification of transportation security incident (TSI). (1) Any
owner or operator required to have a security plan under part 104 or
105 of this subchapter shall, without delay, report a TSI to their
local COTP and immediately thereafter begin following the procedures
set out in their security plan, which may include contacting the
National Response Center via one of the means listed in paragraph (a)
of this section.
(2) Any owner or operator required to have a security plan under
part 106 of this subchapter shall, without delay, report a TSI to their
cognizant District Commander and immediately thereafter begin following
the procedures set out in their security plan, which may include
contacting the National Response Center via one of the means listed in
paragraph (a) of this section.
(d) Callers to the National Response Center should be prepared to
provide as much of the following information as possible:
(1) Their own name and contact information;
(2) The name and contact information of the suspicious or
responsible party;
(3) The location of the incident, as specifically as possible; and
(4) The description of the incident or activity involved.
Sec. 101.310 Additional communication devices.
(a) Alert Systems. Alert systems, such as the ship security alert
system required in SOLAS Chapter XI-2, Regulation 6 (Incorporated by
reference, see Sec. 101.115), may be used to augment communication and
may be one of the communication methods listed in a vessel or facility
security plan under part 104, 105, or 106 of this subchapter.
(b) Automated Identification Systems (AIS). AIS may be used to
augment communication, and may be one of the communication methods
listed in a vessel security plan under part 104 of this subchapter. See
33 CFR part 164 for additional information on AIS device requirements.
Subpart D--Control Measures for Security
Sec. 101.400 Enforcement.
(a) The rules and regulations in this subchapter are enforced by
the COTP under the supervision and general direction of the District
Commander, Area Commander, and the Commandant. All authority and power
vested in the COTP by the rules and regulations in this subchapter is
also vested in, and may be exercised by, the District Commander, Area
Commander, and the Commandant.
(b) The COTP, District Commander, Area Commander, or Commandant may
assign the enforcement authority described in paragraph (a) of this
section to any other officer or petty officer of the Coast Guard or
other designees authorized by the Commandant.
(c) The provisions in this subchapter do not limit the powers
conferred upon Coast Guard commissioned, warrant, or petty officers by
any other law or regulation, including but not limited to 33 CFR parts
6, 160, and 165.
Sec. 101.405 Maritime Security (MARSEC) Directives.
(a)(1) When the Coast Guard determines that additional security
measures are necessary to respond to a threat assessment or to a
specific threat against the maritime elements of the national
transportation system, the Coast Guard may issue a MARSEC Directive
setting forth mandatory measures. Only the Commandant or his/her
delegee may issue MARSEC Directives under this section. Prior to
issuing a MARSEC Directive, the Commandant or his/her delegee will
consult with those Federal agencies having an interest in the subject
matter of that MARSEC Directive. All MARSEC Directives issued under
this section shall be marked as sensitive security information (SSI) in
accordance with 49 CFR part 1520.
(2) When a MARSEC Directive is issued, the Coast Guard will
immediately publish a notice in the Federal Register, and affected
owners and operators will need to go to their local COTP or cognizant
District Commander to acquire a copy of the MARSEC Directive. COTPs and
District Commanders will require the owner or operator to prove that
they have a ``need to know'' the information in the MARSEC Directive
and that they are a ``covered person,'' as those terms are defined in
49 CFR part 1520.
(b) Each owner or operator of a vessel or facility to whom a MARSEC
Directive applies is required to comply with the relevant instructions
contained in a MARSEC Directive issued under this section within the
time prescribed by that MARSEC Directive.
(c) Each owner or operator of a vessel or facility required to have
a security plan under parts 104, 105 or 106 of this subchapter that
receives a MARSEC Directive must:
(1) Within the time prescribed in the MARSEC Directive, acknowledge
receipt of the MARSEC Directive to their local COTP or, if a facility
regulated under part 106 of this subchapter, to their cognizant
District Commander; and
(2) Within the time prescribed in the MARSEC Directive, specify the
method by which the measures in the MARSEC Directive have been
implemented (or will be implemented, if the MARSEC Directive is not yet
effective).
(d) In the event that the owner or operator of a vessel or facility
required to have a security plan under part 104, 105, or 106 of this
subchapter is unable to implement the measures in the MARSEC Directive,
the owner or operator must submit proposed equivalent security measures
and the basis for submitting the equivalent security measures to the
COTP or, if a facility regulated under part 106 of this subchapter, to
their cognizant District Commander, for approval.
(e) The owner or operator must submit the proposed equivalent
security measures within the time prescribed in the MARSEC Directive.
The owner or operator must implement any equivalent security measures
approved by the COTP, or, if a facility regulated under part 106 of
this subchapter, by their cognizant District Commander.
Sec. 101.410 Control and Compliance Measures.
(a) The COTP may exercise authority pursuant to 33 CFR parts 6, 160
and 165, as appropriate, to rectify non-compliance with this
subchapter. COTPs or their designees are the officers duly authorized
to exercise control and compliance measures under SOLAS Chapter XI-2,
Regulation 9, and the ISPS Code (Incorporated by reference, see Sec.
101.115).
(b) Control and compliance measures for vessels not in compliance
with this
[[Page 39284]]
subchapter may include, but are not limited to, one or more of the
following:
(1) Inspection of the vessel;
(2) Delay of the vessel;
(3) Detention of the vessel;
(4) Restriction of vessel operations;
(5) Denial of port entry;
(6) Expulsion from port;
(7) Lesser administrative and corrective measures; or
(8) For U.S. vessels, suspension or revocation of security plan
approval, thereby making that vessel ineligible to operate in, on, or
under waters subject to the jurisdiction of the U.S. in accordance with
46 U.S.C. 70103(c)(5).
(c) Control and compliance measures for facilities not in
compliance with this subchapter may include, but are not limited to,
one or more of the following:
(1) Restrictions on facility access;
(2) Conditions on facility operations;
(3) Suspension of facility operations;
(4) Lesser administrative and corrective measures; or
(5) Suspension or revocation of security plan approval, thereby
making that facility ineligible to operate in, on, under or adjacent to
waters subject to the jurisdiction of the U.S. in accordance with 46
U.S.C. 70103(c)(5).
(d) Control and compliance measures under this section may be
imposed on a vessel when it has called on a facility or at a port that
does not maintain adequate security measures to ensure that the level
of security to be achieved by this subchapter has not been compromised.
Sec. 101.415 Penalties.
(a) Civil and criminal penalty. Violation of any order or other
requirement imposed under section 101.405 of this part is punishable by
the civil and criminal penalties prescribed in 33 U.S.C. 1232 or 50
U.S.C. 192, as appropriate.
(b) Civil penalty. As provided in 46 U.S.C. 70117, any person who
does not comply with any other applicable requirement under this
subchapter, including a Maritime Security Directive, shall be liable to
the U.S. for a civil penalty of not more than $ 25,000 for each
violation. Enforcement and administration of this provision will be in
accordance with 33 CFR 1.07.
Sec. 101.420 Right to appeal.
(a) Any person directly affected by a decision or action taken by a
COTP under this subchapter, may appeal that action or decision to the
cognizant District Commander according to the procedures in 46 CFR
1.03-15.
(b) Any person directly affected by a decision or action taken by a
District Commander, whether made under this subchapter generally or
pursuant to paragraph (a) of this section, may be appealed to the
Commandant (G-MP), according to the procedures in 46 CFR 1.03-15.
(c) Any person directly affected by a decision or action taken by
the Commanding Officer, Marine Safety Center, under this subchapter,
may appeal that action or decision to the Commandant (G-MP) according
to the procedures in 46 CFR 1.03-15.
(d) Decisions made by Commandant (G-MP), whether made under this
subchapter generally or pursuant to the appeal provisions of this
section, are considered final agency action.
Subpart E--Other Provisions
Sec. 101.500 Procedures for authorizing a Recognized Security
Organization (RSO). [Reserved]
Sec. 101.505 Declaration of Security (DoS).
(a) The purpose of a DoS, as described in SOLAS Chapter XI-2,
Regulation 10, and the ISPS Code (Incorporated by reference, see Sec.
101.115), is to state the agreement reached between a vessel and a
facility, or between vessels in the case of a vessel-to-vessel
activity, as to the respective security measures each must undertake
during a specific vessel-to-facility interface, during a series of
interfaces between the vessel and the facility, or during a vessel-to-
vessel activity.
(b) Details as to who must complete a DoS, when a DoS must be
completed, and how long a DoS must be retained are included in parts
104 through 106 of this subchapter.
(c) All vessels and facilities required to comply with parts 104,
105, and 106 of this subchapter must, at a minimum, comply with the DoS
requirements of the MARSEC Level set for the port.
(d) The COTP may also require a DoS be completed for vessels and
facilities during periods of critical port operations, special marine
events, or when vessels give notification of a higher MARSEC Level than
that set in the COTP's Area of Responsibility (AOR).
Sec. 101.510 Assessment tools.
Ports, vessels, and facilities required to conduct risk assessments
by part 103, 104, 105, or 106 of this subchapter may use any assessment
tool that meets the standards set out in part 103, 104, 105, or 106, as
applicable. These tools include:
(a) DHS/TSA's vulnerability self-assessment tool located at http://www.tsa.gov/risk
; and
(b) USCG assessment tools, available from the cognizant COTP or at
http://www.uscg.mil/hq/g-m/nvic, as set out in the following:
(1) Navigation and Vessel Inspection Circular titled, ``Guidelines
for Port Security Committees, and Port Security Plans Required for U.S.
Ports'' (NVIC 9-02);
(2) Navigation and Vessel Inspection Circular titled, ``Security
Guidelines for Vessels'', (NVIC 10-02); and
(3) Navigation and Vessel Inspection Circular titled, ``Security
Guidelines for Facilities'', (NVIC 11-02).
Sec. 101.515 Personal identification.
(a) Any personal identification credential accepted under the
access control provisions of this subchapter must, at a minimum, meet
the following requirements:
(1) Be laminated or otherwise secure against tampering;
(2) Contain the individual's full name (full first and last names,
middle initial is acceptable);
(3) Contain a photo that accurately depicts that individual's
current facial appearance; and
(4) Bear the name of the issuing authority.
(b) The issuing authority in paragraph (a)(4) of this section must
be:
(1) A government authority, or an organization authorized to act on
behalf of a government authority; or
(2) The individual's employer, union, or trade association.
PART 102--NATIONAL MARITIME TRANSPORTATION SECURITY [RESERVED]
Dated: June 23, 2003.
Thomas H. Collins,
Admiral, Coast Guard Commandant.
[FR Doc. 03-16186 Filed 6-27-03; 8:45 am]
BILLING CODE 4910-15-U
[Federal Register: July 1, 2003 (Volume 68, Number 126)]
[Rules and Regulations]
[Page 39284-39292]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr01jy03-15]
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DEPARTMENT OF HOMELAND SECURITY
Coast Guard
33 CFR Part 103
[USCG-2003-14733]
RIN 1625-AA42
Area Maritime Security
AGENCY: Coast Guard, DHS.
ACTION: Temporary interim rule with request for comments and notice of
meeting.
-----------------------------------------------------------------------
SUMMARY: This interim rule establishes U.S. Coast Guard Captains of the
Ports as Federal Maritime Security Coordinators, and establishes
[[Page 39285]]
requirements for Area Maritime Security Plans and Area Maritime
Security Committees. This rule is one of six interim rules in today's
Federal Register that comprise a new subchapter on the requirements for
maritime security mandated by the Maritime Transportation Security Act
of 2002. These six interim rules implement national maritime security
initiatives concerning general provisions, Area Maritime Security
(ports), vessels, facilities, Outer Continental Shelf facilities, and
the Automatic Identification System. Where appropriate, they align
domestic maritime security requirements with those of the International
Ship and Port Facility Security Code and recent amendments to the
International Convention for the Safety of Life at Sea. To best
understand these interim rules, first read the interim rule titled
``Implementation of National Maritime Security Initiatives'' (USCG-
2003-14792).
DATES: Effective date. This interim rule is effective from July 1, 2003
until November 25, 2003.
Comments. Comments and related material must reach the Docket
Management Facility on or before July 31, 2003. Comments on collection
of information sent to the Office of Management and Budget (OMB) must
reach OMB on or before July 31, 2003.
Meeting. A public meeting will be held on July 23, 2003, from 9
a.m. to 5 p.m., in Washington, DC.
ADDRESSES: Comments. To ensure that your comments and related material
are not entered more than once in the docket, please submit them by
only one of the following means:
(1) Electronically to the Docket Management System website at
http://dms.dot.gov.
(2) By mail to the Docket Management Facility (USCG-2003-14733),
U.S. Department of Transportation, room PL-401, 400 Seventh Street,
SW., Washington, DC 20590-0001.
(3) By fax to the Docket Management Facility at (202) 493-2251.
(4) By delivery to room PL-401 on the Plaza level of the Nassif
Building, 400 Seventh Street SW., Washington, DC between 9 a.m. and 5
p.m., Monday through Friday, except Federal holidays. The telephone
number is (202) 366-9329.
You must also mail comments on collection of information to the
Office of Information and Regulatory Affairs, Office of Management and
Budget, 725 17th Street NW., Washington, DC 20503, ATTN: Desk Officer,
U.S. Coast Guard.
Meeting. A public meeting will be held on July 23, 2003 in
Washington, DC at the Grand Hyatt Washington, D.C., 1000 H Street, NW.,
Washington, DC 20001.
FOR FURTHER INFORMATION CONTACT: If you have questions on this rule,
call Lieutenant Commander Richard Teubner, U.S. Coast Guard by
telephone (202) 267-1103, toll-free telephone 1-800-842-8740 ext. 7-
1103, or electronic mail msregs@comdt.uscg.mil. If you have questions
on viewing or submitting material to the docket, call Ms. Dorothy
Beard, Chief, Dockets, Department of Transportation, at (202) 366-5149.
SUPPLEMENTARY INFORMATION: Due to the short timeframe given to
implement these National Maritime Transportation Security initiatives,
as directed by the Maritime Transportation Security Act (MTSA) of 2002
(MTSA, Public Law 107-295, 116 STAT. 2064), and to ensure all comments
are in the public venue for these important rulemakings, we are not
accepting comments containing protected information for these interim
rules. We request you submit comments, as explained in the Request for
Comments section below, and discuss your concerns or support in a
manner that is not security sensitive. We also request that you not
submit proprietary information as part of your comment.
The Docket Management Facility maintains the public docket for this
rulemaking. Comments and material received from the public, as well as
documents mentioned in this preamble as being available in the docket,
will be available for inspection or copying at room PL-401 on the Plaza
level of the Nassif Building, 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
.
Electronic forms of all comments received into any of our dockets
can be searched by the name of the individual submitting the comment
(or signing the comment, if submitted on behalf of an association,
business, labor unit, etc.) and is open to the public without
restriction. You may also review the Department of Transportation's
complete Privacy Act Statement published in the Federal Register on
April 11, 2000 (65 FR 19477-78), or you may visit http://dms.dot.gov/.
Request for Comments
We encourage you to participate in this rulemaking by submitting
comments and related material. Your comments will be considered for the
final rule we plan to issue before November 25, 2003, to replace this
interim rule. If you choose to comment on this rule, please include
your name and address, identify the specific docket number for this
interim rule (USCG-2003-14733), indicate the specific heading of this
document to which each comment applies, and give the reason for each
comment. If you have comments on another rule, please submit those
comments in a separate letter to the docket for that rulemaking. You
may submit your comments and material by mail, hand delivery, fax, or
electronic means to the Docket Management Facility at the address under
ADDRESSES. Please submit your comments and material by only one means.
If you submit them by mail or hand delivery, submit them in an unbound
format, no larger than 8\1/2\ by 11 inches, suitable for copying and
electronic filing. If you submit them by mail and would like to know
that they reached the Facility, please enclose a stamped, self-
addressed postcard or envelope. We will consider all comments and
material received during the comment period. We may change this rule in
view of them.
Public Meeting
We will hold a public meeting on July 23, 2003, in Washington, DC
at the Grand Hyatt Hotel, at the address listed under ADDRESSES. The
meeting will be from 9 a.m. to 5 p.m. to discuss all of the maritime
security interim rules, and the Automatic Identification System (AIS)
interim rule, found in today's Federal Register. In addition, you may
submit a request for other public meetings to the Docket Management
Facility at the address under ADDRESSES explaining why another one
would be beneficial. If we determine that other meetings would aid this
rulemaking, we will hold them at a time and place announced by a later
notice in the Federal Register.
Regulatory Information
We did not publish a notice of proposed rulemaking for this
rulemaking and are making this rule effective upon publication. Section
102(d)(1) of the MTSA of 2002 (Pub. L. 107-295, 116 STAT. 2064)
requires the publication of an interim rule as soon as practicable
without regard to the provisions of chapter 5 of title 5, U.S. Code
(Administrative Procedure Act). The Coast Guard finds that
harmonization of U.S. regulations with maritime security measures
adopted by the International Maritime Organization (IMO) in December
2002, and the need to institute measures for the protection
[[Page 39286]]
of U.S. maritime security as soon as practicable, furnish good cause
for this interim rule to take effect immediately under both the
Administrative Procedure Act and section 808 of the Congressional
Review Act.
Background and Purpose
A summary of the Coast Guard's regulatory initiatives for maritime
security can be found under the Background and Purpose section in the
preamble to the interim rule titled: ``Implementation of National
Maritime Security Initiatives'' (USCG-2003-14792), published elsewhere
in this issue of the Federal Register.
Discussion of Comments Addressing Port Issues in the Notice of Meeting
Docket
For a discussion of comments on ports at the public meetings and in
the docket, see the interim rule titled: ``Implementation of National
Maritime Security Initiatives'' (USCG-2003-14792), published elsewhere
in today's issue of the Federal Register.
Discussion of Interim Rule
This interim rule adds part 103--Area Maritime Security to a new
Subchapter H of Title 33 of the Code of Federal Regulations. This
interim rule integrates port security-related requirements in the MTSA
of 2002 and the International Ship and Port Facility Security (ISPS)
Code. In the MTSA, the port security-related requirements are contained
in the elements that address Area Maritime Security Plans and Federal
Maritime Security Coordinators. In the ISPS Code, the port security-
related requirements are contained in elements that address Port
Facility Security Plans and Port Facility Security Officers. A detailed
discussion on the MTSA and the ISPS Code and the need for these
regulations can be found in the interim rule titled: ``Implementation
of National Maritime Security Initiatives'' (USCG-2003-14792),
published elsewhere in today's Federal Register.
Part 103--Port Security is composed of the following five subparts.
Subpart A--General.
This subpart applies to all vessels and facilities located in, on,
under, or adjacent to waters subject to the jurisdiction of the U.S. A
detailed discussion on applicability can be found in the interim rule
titled: ``Implementation of National Maritime Security Initiatives''
(USCG-2003-14792), published elsewhere in today's Federal Register.
The MTSA and the International Ship and Port Facility Security
(ISPS) Code use different terms to define similar, if not identical,
persons or things. These differing terms sometimes match up with the
terms used in subchapter H, but sometimes they do not. For a table of
the terms used in subchapter H and their related terms in the MTSA and
the ISPS Code, see the Discussion of Interim Rule section in the
preamble for the interim rule titled ``Implementation of National
Maritime Security Initiatives'' (USCG-2003-14792), published elsewhere
in today's Federal Register.
To provide flexibility and a systems approach to security measures
for certain areas, we will allow several Area Maritime Security Plans
to be combined, if appropriate. This strategy is currently being used
to combine the inland river systems into one Area Maritime Security
Plan; a similar system-wide concept is being developed for the Great
Lakes. In addition, Outer Continental Shelf (OCS) facilities in the
Gulf of Mexico will be covered by a single, district-wide plan
implemented by the Eighth Coast Guard District. This process includes
using each Area Maritime Security Assessment to form building blocks
that will be used to create a system-wide security plan methodology
that identifies vulnerabilities and consequences to be mitigated using
regional strategies and resources. The resulting Area Maritime Security
Plan will be a single document that provides consistent security
measures throughout multiple Captain of the Port (COTP) zones.
Subpart B--Federal Maritime Security Coordinator (FMSC) Designation and
Authorities.
This subpart designates the Coast Guard COTP as the Federal
Maritime Security Coordinator. This designation, along with a
description of the COTP's authority as Federal Maritime Security
Coordinator to establish, convene, and direct the Area Maritime
Security (AMS) Committee, fulfills the MTSA requirement to designate a
Coast Guard official as the Federal Maritime Security Coordinator.
Subpart C--Area Maritime Security (AMS) Committee.
This subpart describes the composition and responsibilities of the
AMS Committee. The AMS Committee brings appropriately experienced
representatives from a variety of sources in the port together to
continually assess security risks to the port and determine appropriate
risk mitigation strategies, develop, revise, and implement the AMS
Plan. The AMS Committee may also be the mechanism by which security
threats and changes in Maritime Security (MARSEC) Levels are
communicated to port stakeholders. AMS Committee membership
requirements and terms of office align with the criteria established in
the MTSA for ``Area Maritime Security Advisory Committees.'' Port
Security Committees, such as those operating under the guidelines of
U.S. Coast Guard Navigation and Vessel Inspection Circular (NVIC) 9-02,
that were established prior to the publication of this rule, are
considered AMS Committees, provided they conform to the procedures set
forth in these rules. The AMS Committee members may include, but are
not limited to, the following stakeholders: U.S. Coast Guard, Federal,
State, and local law enforcement, emergency response and public safety
organizations, recreational vessel associations, environmental response
organizations, labor organizations, port managers, and vessel and
facility owner/operator security representatives. There must at least
seven members in the AMS Committee however; there could be as many as
200 or more representatives.
Subpart D--Area Maritime Security (AMS) Assessment.
This subpart directs the AMS Committee to ensure development of a
risk-based AMS Assessment. The AMS Assessment is the important first
step in developing an AMS Plan. This subpart lists the essential
elements of an AMS Assessment, and these provisions are consistent with
the elements of a ``port facility security assessment'' set forth in
the ISPS Code. The AMS Assessment may be conducted by the AMS Committee
members themselves or by persons acting on behalf of the AMS Committee.
This subpart also establishes the skills and knowledge that persons
conducting an AMS Assessment must possess. This subpart further
identifies the process of evaluations that must be performed in the
course of conducting the AMS Assessment: identification of activities
or operations critical to the port area; a threat assessment; a
consequence and vulnerability assessment; a categorization of each
target/scenario combination; and measures that will be implemented at
all MARSEC Levels. This process is consistent with the Port Security
Assessment model identified in NVIC 9-02.
The following is a list of activities, operations, and
infrastructure that may require assessment in the development of the
AMS Plan: Highway bridges, railroad bridges, stadiums, tourist
attractions, significant symbolic structures, commercial attractions,
[[Page 39287]]
marinas, fishing vessels, recreational boats, airports, nuclear
facilities, power plants, oil and gas pipelines, anchorages, mid-stream
operations (e.g., bunkering), under-and-over water cables,
communication networks, utilities providing service to key
transportation assets, barge-fleeting areas, oil and gas production
platforms, tunnels, non-regulated vessels, non-regulated facilities,
Outer Continental Shelf (OCS) facilities, lock and dams, public water
supplies (e.g., aqueducts), boat ramps, docks, un-inspected commercial
vessels, passenger terminals, grain and aggregate facilities, ship
yards, rail yards, tank farms, dikes, levees, sewer and water utility
facilities, major marine or special events, waterways. Additional
consideration should be given to the criticality of port operations as
they relate to vessels and facilities that are directly regulated in
parts 104 through 106 of Subchapter H.
The Coast Guard has also funded and contracted Port Security
Assessments (PSA) in certain port areas throughout the U.S. The Coast
Guard-sponsored PSA team, when completing the PSA, should review the
AMS Assessment and AMS Plan for content and consistency. As part of the
PSA, recommendations will be made to the COTP on strategies to improve
their AMS Plan in the port area that was covered by the PSA. These
recommendations will be part of the AMS Plan review process to ensure
the AMS Committee becomes aware of the PSA results and revises the AMS
Plan appropriately.
Subpart E--Area Maritime Security (AMS) Plan
The AMS Plan is primarily a communication and coordination
document. This subpart establishes the core elements of the AMS Plan
and its relationship to other plans. Core elements include: Details of
operational and physical measures that must be in place at all MARSEC
Levels; expected timeframes for responding to security threats and
changes of MARSEC Levels; communications procedures; measures to ensure
the security of vessels, facilities, and operations that are not
covered by the security requirements in other parts of this subchapter;
measures to ensure the security of the information in the AMS Plan;
periodic review, audit, and updating procedures; and procedures for
reporting security incidents. These requirements are consistent with
the elements of a ``port facility security plan'' established in the
ISPS Code.
This subpart also describes the review and approval process for the
AMS Plan. The COTP will submit an AMS Plan to the cognizant District
Commander for review, with the Area Commander, or his/her designee,
having the authority to approve or disapprove the plan. Approving
officers may require additional assessment, mitigation strategies, or
other measures by parties subject to Coast Guard jurisdiction as a
condition of approving AMS Plans. This review chain has been
established to promote plan coordination and consistency within and
among Coast Guard Districts and Areas. AMS Plans will form the basis
for the National Maritime Transportation Security Plan, established in
the MTSA, and will be consistent with the National Transportation
Security Plan. This subpart establishes exercise requirements under the
AMS Plan. Exercises are an important way to improve system performance
and ensure the AMS Plan remains current.
Although the exercise requirements established in this interim rule
may be satisfied by a tabletop exercise, as our experience with AMS
Plans matures, it may be desirable to require periodic field training
exercises for the future. Therefore, public comment is requested on a
requirement to conduct a maritime security field training exercise in
each area covered by an AMS Plan at least once every 3 years. A
maritime security field training exercise would require the deployment
of personnel and equipment in accordance with the AMS Plan for the
transportation security incident used for the exercise scenario. The
purpose of the field training exercise would include: Evaluating the
adequacy of the AMS Plan, exercising coordination and interoperability
between responding security forces and exercising coordination and
interoperability amongst command personnel of responding agencies
(i.e., Unified Command) as well as their ability to effectively command
and control the response to the transportation security incident. The
maritime security field training exercise may be combined with other
exercises (e.g., National Preparedness for Response Program (PREP) area
exercises) provided a significant security/terrorist attack aspect is
included in the scenario.
Finally, this subpart prescribes AMS Assessment and AMS Plan
records to be maintained by the COTP for 5 years, and exercise records
for 2 years.
Regulatory Assessment
This rule is a ``significant regulatory action'' under section 3(f)
of Executive Order 12866, Regulatory Planning and Review, and has been
reviewed by the Office of Management and Budget 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. An Assessment is
available in the docket as indicated under ADDRESSES. A summary of the
Assessment follows:
Cost Assessment
This rule will affect stakeholders in 47 maritime areas containing
361 ports. The regulatory assessment and analysis documentation (see
docket) details estimated costs to public and private stakeholders and
does not include costs to the Coast Guard.
The total cost estimate of the rule, as it pertains to AMS, is
present value (PV) $477 million (2003-2012, 7 percent discount rate).
The initial cost of the startup period (June 2003-December 2003) for
establishing AMS Committees and creating AMS Plans is estimated to be
$120 million (non-discounted) for all areas. Following the startup
period, the first year of implementation (2004), consisting of monthly
AMS Committee meetings and AMS Plan exercises and drills for all areas,
is estimated to be $106 million (non-discounted). After the first year
of implementation, the annual cost of quarterly AMS Committee meetings
and AMS Plan exercises and drills for all areas is estimated to be $46
million (non-discounted). The startup period cost associated with
creating AMS Committees and AMS Plans for each area is the primary cost
driver of the rule. Both the startup and implementation year period
(2003-2004) combined is nearly half of the total 10-year PV cost
estimate, making initial development, planning, and testing the primary
costs of Area Maritime Security.
This rule will require all COTPs to establish security committees,
plans, training drills, and exercises for their areas, with the
participation of port stakeholders in their areas. The above costs to
stakeholders will be paperwork, travel, and communication costs
associated with participation in AMS Plan implementation.
We estimate 1,203,200 hours of paperwork and other associated
planning activities during 2003, the initial period of security
meetings and development. In 2004, the first year of implementation, we
estimate the value will fall slightly to 1,090,400 hours of paperwork
and other related information and communication activities related to
monthly AMS Committee meetings. In subsequent years, we estimate the
hours will fall to 488,800 hours--annually associated
[[Page 39288]]
with AMS Committee meetings, AMS Plan revisions, and information
exercises and drills.
Benefit Assessment
This interim rule is one of six interim rules that implement
national maritime security initiatives concerning general provisions,
Area Maritime Security (ports), vessels, facilities, Outer Continental
Shelf (OCS) facilities, and the Automatic Identification System (AIS).
The Coast Guard used the National Risk Assessment Tool (N-RAT) to
assess benefits that would result from increased security for vessels,
facilities, Outer Continental Shelf (OCS) facilities, and ports. The N-
RAT considers threat, vulnerability, and consequences for several
maritime entities in various security-related scenarios. For a more
detailed discussion on the N-RAT and how we employed this tool, refer
to ``Applicability of National Maritime Security Initiatives'' in the
interim rule titled ``Implementation of National Maritime Security
Initiatives'' (USCG-2003-14792) published elsewhere in today's Federal
Register. For this benefit assessment, the Coast Guard used a team of
experts to calculate a risk score for each entity and scenario before
and after the implementation of required security measures. The
difference in before and after scores indicates the benefit of the
proposed action.
We recognized that the interim rules are a ``family'' of rules that
will reinforce and support one another in their implementation. We must
ensure, however, that risk reduction that is credited in one rulemaking
is not also credited in another. For a more detailed discussion on the
benefit assessment and how we addressed the potential to double-count
the risk reduced, refer to Benefit Assessment in the interim rule
titled ``Implementation of National Maritime Security Initiatives''
(USCG-2003-14792) published elsewhere in today's Federal Register.
We determined annual risk points reduced for each of the six
interim rules using the N-RAT. The benefits are apportioned among the
Vessel, Facility, OCS Facility, AMS, and AIS requirements. As shown in
Table 1, the implementation of AMS Plans for the affected population
reduces 135,202 risk points annually through 2012. The benefits
attributable for part 101--General Provisions--were not considered
separately since it is an overarching section for all the parts.
Table 1.--Annual Risk Points Reduced by the Interim Rules.
----------------------------------------------------------------------------------------------------------------
Annual risk points reduced by rulemaking
-------------------------------------------------------------------------------
Maritime entity Vessel Facility OCS facility
security plans security plans security plans AMS plans AIS
----------------------------------------------------------------------------------------------------------------
Vessels......................... 778,633 3,385 3,385 3,385 1,448
Facilities...................... 2,025 469,686 .............. 2,025 ..............
OCS Facilities.................. 41 .............. 9,903 .............. ..............
Port Areas...................... 587 587 .............. 129,792 105
=================================
----------------------------------------------------------------------------------------------------------------
Once we determined the annual risk points reduced, we discounted
these estimates to their PV (7 percent discount rate, 2003-2012) so
that they could be compared to the costs. We presented the cost
effectiveness, or dollars per risk point reduced, in two ways: First,
we compared the first-year cost and first-year benefit because the
first-year cost is the highest in our assessment as companies develop
security plans and purchase equipment. Second, we compared the 10-year
PV cost to the 10-year PV benefit. The results of our assessment are
presented in Table 2.
Table 2.--First-Year and 10-Year PV Cost and Benefit of the Interim rules
----------------------------------------------------------------------------------------------------------------
Interim rule
----------------------------------------------------------------
OCS
Item Vessel Facility facility
security security security AMS plans AIS *
plans plans plans
----------------------------------------------------------------------------------------------------------------
First-Year Cost (millions)..................... $218 $1,125 $3 $120 $41
First-Year Benefit............................. 781,285 473,659 13,288 135,202 1,553
First-Year Cost Effectiveness ($/Risk Point $279 $2,375 $205 $890 $26,391
Reduced)......................................
10-Year PV Cost (millions)..................... $1,368 $5,399 $37 $477 $42
10-Year PV Benefit............................. 5,871,540 3,559,655 99,863 1,016,074 11,671
10-Year PV Cost Effectiveness ($/Risk Point $233 $1,517 $368 $469 $3,624
Reduced)......................................
----------------------------------------------------------------------------------------------------------------
* Cost less monetized safety benefit.
Small Entities
Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have
considered whether this rule would have a significant economic impact
on a substantial number of small entities. The term ``small entities''
comprises small businesses, not-for-profit organizations that are
independently owned and operated and are not dominant in their fields,
and governmental jurisdictions with populations of less than 50,000.
The stakeholders affected by this rule include a variety of
businesses and governments. The COTP will designate approximately 200
stakeholders, per maritime area, to engage in security planning,
meetings, and drills. Full participation by these stakeholders will be
voluntary. We estimate the first-year cost, per stakeholder, to be
$12,800 (non-discounted). In subsequent years, the annual cost, per
stakeholder (full participation in this rule), falls to $4,940 (non-
discounted).
The results from our assessment (copy available in the docket)
suggest that the impact of this rule is not significant for port and
maritime area authorities,
[[Page 39289]]
owners, or operators because of the low average annual cost per
stakeholder and the voluntary nature of participating in this rule.
We estimated the majority of small entities have a less than 3
percent impact on revenue if they choose to fully participate in this
rule. We anticipate the few remaining small entities that may have a
greater than 3 percent impact on annual revenue will either opt out
(not participate) or partially participate in the rule to the extent
that the impact on revenue is not a burden.
There are other stakeholders affected by this rule in addition to
port authorities, owners, and operators. The stakeholders could be any
entity that the COTP invites to partially or fully participate. We
anticipate the impact on other possible small entity stakeholders to be
minimal because of the low average annual cost per stakeholder and the
voluntary nature of participating in this rule.
Therefore, the Coast Guard certifies, under 5 U.S.C. 605(b), that
this rule will not have a significant economic impact on a substantial
number of small entities. If you think that your business,
organization, or governmental jurisdiction qualifies as a small entity
and that this rule will have a significant economic impact on it,
please submit a comment to the Docket Management Facility at the
address under ADDRESSES. In your comment, explain why you think it
qualifies and how and to what degree this rule would economically
affect it.
Assistance for Small Entities
Under section 213(a) of the Small Business Regulatory Enforcement
Fairness Act of 1996 (Pub. L. 104-121), we want to assist small
entities in understanding this rule so that they can better evaluate
its effects on them and participate in the rulemaking. If the rule
would affect your small business, organization, or governmental
jurisdiction, and you have questions concerning its provisions or
options for compliance, please consult LCDR Richard Teubner, USCG-MPS-2
by telephone, 202-267-1103, toll-free telephone, 1-800-842-8740 ext. 7-
1103, or electronic mail, msregs@comdt.uscg.mil. Small businesses may send comments on the actions of Federal
employees who enforce, or, otherwise determine compliance with, Federal
regulations to the Small Business and Agriculture Regulatory
Enforcement Ombudsman and the Regional Small Business Regulatory
Fairness Boards. The Ombudsman evaluates these actions annually and
rates each agency's responsiveness to small business. If you wish to
comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR
(1-888-734-3247).
Collection of Information
This rule calls for a collection of information under the Paperwork
Reduction Act of 1995 (44 U.S.C. 3501-3520). As defined in 5 CFR
1320.3(c), ``collection of information'' comprises reporting,
recordkeeping, monitoring, posting, labeling, and other, similar
actions. It modifies an existing OMB-approved collection--1625-0077
[formerly 2115-0622]. A summary of the revised collection follows.
Title: Security Plans for Ports, Vessels, Facilities, and Outer
Continental Shelf Facilities and Other Security-Related Requirements.
OMB Control Number: 1625-0077
Summary of the Collection of Information: The Coast Guard requires
security plans and communication procedures for U.S. ports and maritime
areas. This rule provides a framework to ensure adequate security
planning, exercises, drilling, and communication procedures by inviting
port and maritime area stakeholders (at the discretion of the COTP) to
participate in security planning events including, but not limited to,
meetings and information drills as detailed in part 103.
Need for Information: The primary need for information would be to
determine if stakeholders are in compliance with security standards.
Proposed Use of Information: This information can help to determine
appropriate security measures for the affected population. This
information also can help determine, in the case of a transportation
security incident, whether failure to meet these regulations
contributed to the transportation security incident.
Description of the Respondents: This rule will affect approximately
200 stakeholders in 47 maritime areas containing 361 ports. The
respondents are public and private stakeholders in the affected port
areas (at the discretion of the COTP).
Number of Respondents: 9,400 (200 stakeholders in 47 maritime
areas).
Frequency of Response: Varies. Initial AMS Plan planning occurs
throughout the first year on an undefined schedule. AMS Committee
meetings may occur monthly in the first two years of this rule with
quarterly AMS Committee meetings in subsequent years. Frequency of AMS
Committee meetings is established in the AMS Committee Charter. After
the first year, AMS Plan exercises occur once each calendar year with
no more than 18 months between exercises.
Burden of Response: The burden of response is approximately 128
hours for the first year per stakeholder. The second year burden of
response is 116 hours per stakeholder. In the subsequent years, the
annual burden of response is approximately 52 hours per stakeholder.
Estimate of Total Annual Burden: During the initial year the burden
will be 1,203,200 hours. Subsequently, the average annual reporting
burden is 488,800 hours for all stakeholders in all 47 COTP zones. For
a summary of all revisions to this existing OMB-approved collection,
refer to Collection of Information in the interim rule titled
``Implementation of National Maritime Security Initiatives'' (USCG-
2003-14792) published elsewhere in today's Federal Register.
As required by the Paperwork Reduction Act of 1995 (44 U.S.C.
3507(d)), we have submitted a copy of this rule to OMB for its review
of the collection of information. Due to the circumstances surrounding
this temporary rule, we asked for ``emergency processing'' of our
request. We received OMB approval for the collection of information on
June 16, 2003. It is valid until December 31, 2003.
We ask for public comment on the collection of information to help
us determine how useful the information is; whether it can help us
perform our functions better; whether it is readily available
elsewhere; how accurate our estimate of the burden of collection is;
how valid our methods for determining burden are; how we can improve
the quality, usefulness, and clarity of the information; and how we can
minimize the burden of collection.
If you submit comments on the collection of information, submit
them both to OMB and to the Docket Management Facility where indicated
under ADDRESSES, by the date under DATES.
You need not respond to a collection of information, unless it
displays a currently valid control number from OMB. We received OMB
approval for the collection of information on June 16, 2003. It is
valid until December 31, 2003.
Federalism
A rule has implications for federalism under Executive Order 13132,
Federalism, if it has a substantial direct effect on State or local
governments and would either preempt State law or impose a substantial
direct cost of compliance on them. See the Federalism section in the
preamble to the interim
[[Page 39290]]
rule titled: ``Implementation of National Maritime Security
Initiatives'' (USCG-2003-14792) published elsewhere in today's Federal
Register, for a discussion of our analysis under this Executive Order.
Unfunded Mandates Reform Act
The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538)
requires Federal agencies to assess the effects of their discretionary
regulatory actions. In particular, the Act addresses actions that may
result in the expenditure by a State, local, or tribal government, in
the aggregate, or by the private sector of $100,000,000 or more in any
one year. This rule is exempted from assessing the effect of the
regulatory action as required by the Act because it is necessary for
the national security of the U.S. (2 U.S.C. 1503(5)).
Taking of Private Property
This interim rule will not effect taking of private property or,
otherwise, have taking implications under Executive Order 12630,
Governmental Actions and Interference with Constitutionally Protected
Property Rights.
Civil Justice Reform
This interim rule meets applicable standards in sections 3(a) and
3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize
litigation, eliminate ambiguity, and reduce burden.
Protection of Children
We have analyzed this interim rule under Executive Order 13045,
Protection of Children from Environmental Health Risks and Safety
Risks. While this rule is an economically significant rule, it does not
create an environmental risk to health or risk to safety that may
disproportionately affect children.
Indian Tribal Governments
This interim rule does not have tribal implications under Executive
Order 13175, Consultation and Coordination with Indian Tribal
Governments, because it does not have a substantial direct effect on
one or more Indian tribes, on the relationship between the Federal
Government and Indian tribes, or on the distribution of power and
responsibilities between the Federal Government and Indian tribes.
Energy Effects
We have analyzed this interim rule under Executive Order 13211,
Actions Concerning Regulations That Significantly Affect Energy Supply,
Distribution, or Use. We have determined that it is not a ``significant
energy action'' under that order. Although it is a ``significant
regulatory action'' under Executive Order 12866, it is not likely to
have a significant adverse effect on the supply, distribution, or use
of energy. The Administrator of the Office of Information and
Regulatory Affairs has not designated it as a significant energy
action. Therefore, it does not require a Statement of Energy Effects
under Executive Order 13211.
This interim rule has a positive effect on the supply,
distribution, and use of energy. The interim rule provides for security
assessments, plans, procedures, and standards, which will prove
beneficial for the supply, distribution, and use of energy at increased
levels of maritime security.
Trade Impact Assessment
The Trade Agreement Act of 1979 (19 U.S.C. 2501-2582) prohibits
Federal agencies from engaging in any standards or related activities
that create unnecessary obstacles to the foreign commerce of the U.S.
Legitimate domestic objectives, such as safety and security, are not
considered unnecessary obstacles. The Act also requires consideration
of international standards and, where appropriate, that they be the
basis for U.S. standards. We have assessed the potential effect of this
interim rule and have determined that it would likely create obstacles
to the foreign commerce of the U.S. However, because these regulations
are being put in place in order to further a legitimate domestic
objective, namely to increase the security of the U.S., any obstacles
created by the regulation are not considered unnecessary obstacles.
Environment
We have considered the environmental impact of this rule and
concluded that, under figure 2-1, paragraph (34)(a) and (34)(c) of
Commandant Instruction M16475.lD, this rule is categorically excluded
from further environmental documentation. This interim rule concerns
security assessments and the establishment of security committees and
coordinators that will contribute to a higher level of marine safety
and security for U.S. ports. A ``Categorical Exclusion Determination''
is available in the docket where indicated under ADDRESSES or
SUPPLEMENTARY INFORMATION.
This rulemaking will not significantly impact the coastal zone.
Further, the rulemaking and the execution of this rule will be done in
conjunction with appropriate State coastal authorities. The Coast Guard
will, therefore, comply with the requirements of the Coastal Zone
Management Act while furthering its intent to protect the coastal zone.
List of Subjects in 33 CFR Part 103
Facilities, Harbors, Maritime security, Ports, Reporting and
recordkeeping requirements, Security measures, Vessels, Waterways.
0
For the reasons discussed in the preamble, the Coast Guard is adding
part 103 to subchapter H of chapter I of title 33 in the CFR to read as
follows:
SUBCHAPTER H--MARITIME SECURITY
PART 103--AREA MARITIME SECURITY
Subpart A--General
Sec.
103.100 Applicability.
103.105 Definitions.
Subpart B--Federal Maritime Security Coordinator (FMSC) Designation and
Authorities
103.200 Designation of the Federal Maritime Security Coordinator
(FMSC).
103.205 Authority of the COTP as the Federal Maritime Security
Coordinator (FMSC).
Subpart C--Area Maritime Security (AMS) Committee
103.300 Area Maritime Security (AMS) Committee.
103.305 Composition of an Area Maritime Security (AMS) Committee.
103.310 Responsibilities of the Area Maritime Security (AMS)
Committee.
Subpart D--Area Maritime Security (AMS) Assessment
103.400 General.
103.405 Elements of the Area Maritime Security (AMS) Assessment.
103.410 Persons involved in the Area Maritime Security (AMS).
Subpart E--Area Maritime Security (AMS) Plan
103.500 General.
103.505 Elements of the Area Maritime Security (AMS) Plan.
103.510 Area Maritime Security (AMS) Plan review and approval.
103.515 Exercises.
103.520 Recordkeeping.
Authority: 33 U.S.C. 1226, 1231; 46 U.S.C. 70102, 70103, 70104,
70112; 50 U.S.C. 191; 33 CFR 1.05-1, 6.04-11, 6.14, 6.16, and 6.19;
Department of Homeland Security Delegation No. 0170.
Subpart A--General
Sec. 103.100 Applicability.
This part applies to all vessels and facilities located in, on,
under, or adjacent to waters subject to the jurisdiction of the U.S.
[[Page 39291]]
Sec. 103.105 Definitions.
Except as specifically stated in this subpart, the definitions in
part 101 of this subchapter apply to this part.
Subpart B--Federal Maritime Security Coordinator (FMSC) Designation
and Authorities
Sec. 103.200 Designation of the Federal Maritime Security Coordinator
(FMSC).
The COTPs are the Federal Maritime Security Coordinators for their
respective COTP zones described in 33 CFR part 3, including all ports
and areas located therein.
Sec. 103.205 Authority of the COTP as the Federal Maritime Security
Coordinator (FMSC).
(a) Without limitation to the authority vested in the COTP by
statute or regulation, and in addition to authority prescribed
elsewhere in this part, the COTP as the FMSC is authorized to:
(1) Establish, convene, and direct the Area Maritime Security (AMS)
Committee;
(2) Appoint members to the AMS Committee;
(3) Develop and maintain, in coordination with the AMS Committee,
the AMS Plan;
(4) Implement and exercise the AMS Plan; and
(5) Maintain the records required by Sec. 103.520 of this part.
(b) The authorizations in paragraph (a) of this section do not
limit any other existing authority of the COTP.
Subpart C--Area Maritime Security (AMS) Committee
Sec. 103.300 Area Maritime Security (AMS) Committee.
(a) The AMS Committee is established under the direction of the
COTP and shall assist in the development, review, and update of the AMS
Plan for their area of responsibility. For the purposes of this
subchapter, Port Security Committees that were established prior to
July 1, 2003, according to guidance issued by the Coast Guard, may be
considered AMS Committees, provided they conform to the procedures
established by this part and satisfy the membership requirements of
Sec. 103.305 of this part.
(b) The AMS Committee will operate under terms specified in a
written charter. At a minimum, the charter must address:
(1) The AMS Committee's purpose and geographic area of
responsibility;
(2) Rules for membership;
(3) The AMS Committee's organizational structure and procedural
rules of order;
(4) Frequency of meetings, to include not less than once in a
calendar year or when requested by a majority of the AMS Committee
members;
(5) Guidelines for public access to AMS Committee meetings and
records; and
(6) Rules for handling and protecting classified, sensitive
security, commercially sensitive, and proprietary information.
Sec. 103.305 Composition of an Area Maritime Security (AMS)
Committee.
(a) An AMS Committee must be composed of not less than seven
members, each having at least 5 years of experience related to maritime
or port security operations, and who may be selected from:
(1) The Federal, Territorial, or Tribal government;
(2) The State government and political subdivisions thereof;
(3) Local public safety, crisis management and emergency response
agencies;
(4) Law enforcement and security organizations;
(5) Maritime industry;
(6) Other port stakeholders having a special competence in maritime
security; and
(7) Port stakeholders affected by security practices and policies.
(b) Members appointed under this section serve for a term of not
more than 5 years. In appointing members, the COTP should consider the
skills required by Sec. 103.410 of this part. Prior to the appointment
of an individual to a position on the AMS Committee, the COTP may
require an appropriate security background examination of the candidate
member.
Sec. 103.310 Responsibilities of the Area Maritime Security (AMS)
Committee.
(a) The AMS Committee shall:
(1) Identify critical port infrastructure and operations;
(2) Identify risks (threats, vulnerabilities, and consequences);
(3) Determine mitigation strategies and implementation methods;
(4) Develop and describe the process to continually evaluate
overall port security by considering consequences and vulnerabilities,
how they may change over time, and what additional mitigation
strategies can be applied; and
(5) Provide advice to, and assist the COTP in, developing the AMS
Plan.
(b) The AMS Committee shall also serve as a link for communicating
threats and changes in MARSEC Levels, and disseminating appropriate
security information to port stakeholders.
Subpart D--Area Maritime Security (AMS) Assessment
Sec. 103.400 General.
(a) The Area Maritime Security (AMS) Committee will ensure that a
risk based AMS Assessment, is completed and meets the requirements
specified in Sec. 103.310 of this part and Sec. 101.510 of this
subchapter, incorporating the elements specified in Sec. 103.405 of
this part.
(b) AMS Assessments can be completed by the COTP, the AMS
Committee, a Coast Guard Port Security Assessment team, or by another
third party approved by the AMS Committee.
(c) Upon completion of each AMS Assessment, a written report, which
is designated sensitive security information, must be prepared
consisting of:
(1) A summary of how the AMS Assessment was conducted;
(2) A description of each vulnerability and consequences found
during the AMS Assessment; and
(3) A description of risk reduction strategies that could be used
to ensure continued operation at an acceptable risk level.
Sec. 103.405 Elements of the Area Maritime Security (AMS) Assessment.
(a) The AMS Assessment must include the following elements:
(1) Identification of the critical Marine Transportation System
infrastructure and operations in the port;
(2) Threat assessment that identifies and evaluates each potential
threat on the basis of various factors, including capability and
intention;
(3) Consequence and vulnerability assessment for each target/
scenario combination; and
(4) A determination of the required security measures for the three
MARSEC Levels.
(b) In order to meet the elements listed in paragraph (a) of this
section, an AMS Assessment should consider each of the following:
(1) Physical security of infrastructure and operations at the port;
(2) Structures considered critical for the continued operation of
the port;
(3) Existing security systems and equipment available to protect
maritime personnel;
(4) Procedural policies;
(5) Radio and telecommunication systems, including computer systems
and networks;
(6) Relevant transportation infrastructure;
(7) Utilities;
(8) Security resources and capabilities; and
[[Page 39292]]
(9) Other areas that may, if damaged, pose a risk to people,
infrastructure, or operations within the port.
(c) AMS Assessments are sensitive security information and must be
protected in accordance with 49 CFR part 1520.
Sec. 103.410 Persons involved in the Area Maritime Security (AMS)
Assessment.
The persons carrying out the AMS Assessment must have the
appropriate skills to evaluate the security of the port in accordance
with this part. This includes being able to draw upon expert assistance
in relation to:
(a) Knowledge of current security threats and patterns;
(b) Recognition and detection of dangerous substances, and devices;
(c) Recognition, on a non-discriminatory basis, of characteristics
and behavioral patterns of persons who are likely to threaten security;
(d) Techniques used to circumvent security measures;
(e) Methods used to cause a transportation security incident;
(f) Effects of dangerous substances and devices on structures and
port services;
(g) Port security requirements;
(h) Port business practices;
(i) Contingency planning, emergency preparedness, and response;
(j) Physical security measures;
(k) Radio and telecommunications systems, including computer
systems and networks;
(l) Transportation and civil engineering;
(m) Vessel and port operations; and
(n) Knowledge of the impact, including cost impacts of implementing
security measures on port operations.
Subpart E--Area Maritime Security (AMS) Plan
Sec. 103.500 General.
(a) The Area Maritime Security (AMS) Plan is developed by the COTP,
in consultation with the AMS Committee, and is based on an AMS
Assessment that meets the provisions of subpart D of this part. The AMS
Plan must be consistent with the National Maritime Transportation
Security Plan and the National Transportation Security Plan.
(b) AMS Plans are sensitive security information and must be
protected in accordance with 49 CFR part 1520.
Sec. 103.505 Elements of the Area Maritime Security (AMS) Plan.
The AMS Plan should address the following elements, as applicable:
(a) Details of both operational and physical measures that are in
place in the port at MARSEC Level 1;
(b) Details of the additional security measures that enable the
port to progress, without delay, to MARSEC Level 2 and, when necessary,
to MARSEC Level 3;
(c) Details of the security incident command-and-response
structure;
(d) Details for regular audit of the AMS Plan, and for its
amendment in response to experience or changing circumstances;
(e) Measures to prevent the introduction of dangerous substances
and devices into designated restricted areas within the port;
(f) Measures to prevent unauthorized access to designated
restricted areas within the port;
(g) Procedures and expected timeframes for responding to security
threats or breaches of security, including provisions for maintaining
infrastructure and operations in the port;
(h) Procedures for responding to any security instructions the
Coast Guard announces at MARSEC Level 3;
(i) Procedures for evacuation within the port in case of security
threats or breaches of security;
(j) Procedures for periodic plan review, exercise, and updating;
(k) Procedures for reporting transportation security incidents
(TSI);
(l) Identification of, and methods to communicate with, Facility
Security Officers (FSO), Company Security Officers (CSO), Vessel
Security Officers (VSO), public safety officers, emergency response
personnel, and crisis management organization representatives within
the port, including 24-hour contact details;
(m) Measures to ensure the security of the information contained in
the AMS Plan;
(n) Security measures designed to ensure effective security of
infrastructure, special events, vessels, passengers, cargo, and cargo
handling equipment at facilities within the port not otherwise covered
by a Vessel or Facility Security Plan, approved under part 104, 105, or
106 of this subchapter;
(o) Procedures to be taken when a vessel is at a higher security
level than the facility or port it is visiting;
(p) Procedures for responding if a vessel security alert system on
board a vessel within or near the port has been activated;
(q) Procedures for communicating appropriate security and threat
information to the public;
(r) Procedures for handling reports from the public and maritime
industry regarding suspicious activity;
(s) Security resources available for incident response and their
capabilities;
(t) Procedures for responding to a TSI; and
(u) Procedures to facilitate the recovery of the Marine
Transportation System after a TSI.
Sec. 103.510 Area Maritime Security (AMS) Plan review and approval.
Each AMS Plan will be submitted to the cognizant District Commander
for review and then forwarded to the Area Commander for approval.
Sec. 103.515 Exercises.
(a) The COTP shall coordinate with the Area Maritime Security (AMS)
Committee to conduct an exercise at least once each calendar year, with
no more than 18 months between exercises, to test the effectiveness of
the AMS Plan.
(b) An exercise may consist of any of the following:
(1) A tabletop exercise to validate the AMS Plan. No equipment or
personnel deployment is required;
(2) A field training exercise consisting of personnel deployment
and use of security equipment; or
(3) A combination of Sec. 103.515(b)(1) and (b)(2).
(c) Upon concurrence of the cognizant District Commander, an actual
increase in MARSEC Level, or implementation of enhanced security
measures during periods of critical port operations or special marine
events may satisfy the exercise requirements of this section.
Sec. 103.520 Recordkeeping.
(a) All records pertaining to the Area Maritime Security (AMS)
Assessment and AMS Plan will be retained by the COTP for 5 years.
(b) Exercise documentation will be kept by the COTP for 2 years.
Dated: June 23, 2003.
Thomas H. Collins,
Admiral, Coast Guard Commandant.
[FR Doc. 03-16187 Filed 6-27-03; 8:45 am]
BILLING CODE 4910-15-P
[Federal Register: July 1, 2003 (Volume 68, Number 126)]
[Rules and Regulations]
[Page 39292-39315]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr01jy03-16]
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DEPARTMENT OF HOMELAND SECURITY
Coast Guard
33 CFR Parts 104, 160, and 165
46 CFR Parts 2, 31, 71, 91, 115, 126, and 176
[USCG-2003-14749]
RIN 1625-AA46
Vessel Security
AGENCY: Coast Guard, DHS.
[[Page 39293]]
ACTION: Temporary interim rule with request for comments and notice of
meeting.
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SUMMARY: This interim rule provides security measures for certain
vessels calling on U.S. ports. It requires the owners or operators of
vessels to designate security officers for vessels, develop security
plans based on security assessments, implement security measures
specific to the vessel's operation, and comply with Maritime Security
Levels. This interim rule is one of six interim rules in today's
Federal Register that comprise a new subchapter on the requirements for
maritime security mandated by the Maritime Transportation Security Act
of 2002. These six interim rules implement national maritime security
initiatives concerning general provisions, Area Maritime Security
(ports), vessels, facilities, Outer Continental Shelf facilities, and
the Automatic Identification System. Where appropriate, they align
these domestic maritime security requirements with those of the
International Ship and Port Facility Security Code and recent
amendments to the International Convention for the Safety of Life at
Sea. To best understand these interim rules, first read the interim
rule titled ``Implementation of National Maritime Security
Initiatives'' (USCG-2003-14792).
DATES: Effective date. This interim rule is effective from July 1, 2003
until November 25, 2003, with the exception of amendatory instructions
2, 5, 6, 8, 9, 10, 12, 14, 15, 16, 18, and 19 which are effective July
1, 2003. The Coast Guard intends to finalize these amendments by
November 25, 2003. On July 31, 2003, the Director of the Federal
Register approved the incorporation by reference of certain
publications listed in this rule.
Comments. Comments and related material must reach the Docket
Management Facility on or before. Comments on collection of information
sent to the Office of Management and Budget (OMB) must reach OMB on or
before July 31, 2003.
Meeting. A public meeting will be held on July 23, 2003, from 9
a.m. to 5 p.m., in Washington, DC.
ADDRESSES: Comments. To ensure that your comments and related material
are not entered more than once in the docket, please submit them by
only one of the following means:
(1) Electronically to the Docket Management System Web site at
http://dms.dot.gov.
(2) By mail to the Docket Management Facility (USCG-2003-14749),
U.S. Department of Transportation, room PL-401, 400 Seventh Street,
SW., Washington, DC 20590-0001.
(3) By fax to the Docket Management Facility at 202-493-2251.
(4) By delivery to room PL-401 on the Plaza level of the Nassif
Building, 400 Seventh Street SW., Washington, DC, between 9 a.m. and 5
p.m., Monday through Friday, except Federal holidays. The telephone
number is 202-366-9329.
You must also mail comments on collection of information to the
Office of Information and Regulatory Affairs, Office of Management and
Budget, 725 17th Street NW., Washington, DC 20503, ATTN: Desk Officer,
U.S. Coast Guard.
Meeting. A public meeting will be held on July 23, 2003 in
Washington, DC at the Grand Hyatt Washington, DC, 1000 H Street, NW.,
Washington, DC 20001.
Availability. Electronic forms of all comments received into any of
our dockets can be searched by the name of the individual submitting
the comment (or signing the comment, if submitted on behalf of an
association, business, labor unit, etc.) and is open to the public
without restriction. You may also review the Department of
Transportation's complete Privacy Act Statement in the Federal Register
published on April 11, 2000 (65 FR 19477-78), or you may visit http://dms.dot.gov/
.
FOR FURTHER INFORMATION CONTACT: If you have questions on this rule,
call Lieutenant Kevin Oditt (G-MP), U.S. Coast Guard by telephone 202-
267-1103, toll-free telephone 1-800-842-8740 ext. 7-1103, or electronic
mail msregs@comdt.uscg.mil. If you have questions on viewing or submitting material to the
docket, call Ms. Dorothy Beard, Chief, Dockets, Department of
Transportation, and telephone 202-366-5149.
SUPPLEMENTARY INFORMATION: Due to the short timeframe given to
implement these National Maritime Transportation Security initiatives,
as directed by the Maritime Transportation Security Act (MTSA), and to
ensure all comments are in the public venue for these important
rulemakings, we are not accepting comments containing protected
information for these interim rules. We request you submit comments, as
explained in the Request for Comments section below, and discuss your
concerns or support in a manner that is not security sensitive. We also
request that you not submit proprietary information as part of your
comment.
The Docket Management Facility maintains the public docket for this
rulemaking. Comments and material received from the public, as well as
documents mentioned in this preamble as being available in the docket,
will become part of this docket and will be available for inspection or
copying at room PL-401 on the Plaza level of the Nassif Building, 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.
Request for Comments
We encourage you to participate in this rulemaking by submitting
comments and related material. Your comments will be considered for the
final rule we plan to issue before November 25, 2003, to replace this
interim rule. If you choose to comment on this rule, please include
your name and address, identify the specific docket number for this
interim rule (USCG-2003-14749), indicate the specific heading of this
document to which each comment applies, and give the reason for each
comment. If you have comments on another rule, please submit those
comments in a separate letter to the docket for that rulemaking. You
may submit your comments and material by mail, hand delivery, fax, or
electronic means to the Docket Management Facility at the address under
ADDRESSES. Please submit your comments and material by only one means.
If you submit them by mail or hand delivery, submit them in an unbound
format, no larger than 8\1/2\ by 11 inches, suitable for copying and
electronic filing. If you submit them by mail and would like to know
that they reached the facility, please enclose a stamped, self-
addressed postcard or envelope. We will consider all comments and
material received during the comment period. We may change this rule in
view of them.
Public Meetings
We will hold a public meeting on July 23, 2003, in Washington, DC
at the Grand Hyatt Hotel, at the address listed under ADDRESSES. The
meeting will be from 9 a.m. to 5 p.m. to discuss all of the maritime
security interim rules, and the Automatic Identification System (AIS)
interim rule, found in today's Federal Register. In addition, you may
submit a request for other public meetings to the Docket Management
Facility at the address under ADDRESSES explaining why another one
would be beneficial. If we determine that other meetings would aid this
rulemaking, we will hold them at a time and place
[[Page 39294]]
announced by a later notice in the Federal Register.
Regulatory Information
We did not publish a notice of proposed rulemaking for this
rulemaking and are making this rule effective upon publication. Section
102(d)(1) of the Maritime Transportation Security Act of 2002 (MTSA,
Pub. L. 107-295, 116 STAT. 2064) requires the publication of an interim
rule as soon as practicable without regard to the provisions of chapter
5 of title 5, U.S. Code (Administrative Procedure Act). The Coast Guard
finds that harmonization of U.S. regulations with maritime security
measures adopted by the International Maritime Organization (IMO) in
December 2002, and the need to institute measures for the protection of
U.S. maritime security as soon as practicable, furnish good cause for
this interim rule to take effect immediately under both the
Administrative Procedure Act and section 808 of the Congressional
Review Act.
Background and Purpose
A summary of the Coast Guard's regulatory initiatives for maritime
security can be found under the Background and Purpose section in the
preamble to the interim rule titled ``Implementation of National
Maritime Security Initiatives'' (USCG-2003-14792) published elsewhere
in today's Federal Register.
Discussion of Comments Addressing Vessel Issues in the Notice of
Meeting
For a discussion of comments on vessels at the public meetings and
in the docket, see the interim rule titled ``Implementation of National
Maritime Security Initiatives'' (USCG-2003-14792) published elsewhere
in today's Federal Register.
Discussion of Interim Rule
This interim rule regulates the owners or operators of certain
classes of vessels, in order to provide greater security to these
vessels and to other vessels or ports with which a vessel interfaces.
The interim rule adds part 104, Vessel Security, to the new subchapter
H, Maritime Security of Title 33 of the Code of Federal Regulation. A
general description of the process used in developing subchapter H and
its component parts appears in the interim rule titled ``Implementation
of National Maritime Security Initiatives'' (USCG-2003-14792).
The MTSA and the International Ship and Port Facility Security
(ISPS) Code use different terms to define similar, if not identical,
persons or things. These differing terms sometimes match up with the
terms used in subchapter H, but sometimes they do not. For a table of
the terms used in subchapter H and their related terms in the MTSA and
the ISPS Code, see the Discussion of Interim Rule section in the
preamble for the interim rule titled ``Implementation of National
Maritime Security Initiatives'' (USCG-2003-14792), published elsewhere
in today's Federal Register.
The purpose of this rulemaking is to require certain vessels to
perform security assessments, develop security plans, and implement
security measures and procedures in order to reduce the risk of and to
mitigate the results of an act that threatens the security of the crew,
the vessel, or the public. This rulemaking combines international
requirements and existing domestic policy and is published as a part of
a new subchapter on maritime security. The MTSA mandates vessels that
are required to conduct security assessments and develop security plans
to submit their vessel security plan within 6 months of the publication
of this interim rule. It also mandates that the vessels shall be in
compliance with their approved security plan within 12 months of the
publication of this interim rule. However, consistent with customary
international law, the requirements in part 104 do not apply to vessels
engaged in innocent passage through the territorial sea of the U.S. or
in transit passage through the navigable waters of the U.S. that form
part of an international strait.
Part 104 consists of four Subparts: Subpart A (General), subpart B
(Vessel Security Requirements), subpart C (Vessel Security Assessment),
and subpart D (Vessel Security Plan). Where appropriate, the
requirements discussed in part 104 are consistent with requirements in
the ISPS Code, and include the requirements discussed below.
Compliance
U.S. flag vessel compliance with this part will be verified during
inspections by the Coast Guard as provided in 46 CFR part 2. 46 CFR
subchapters D, H, I, K, L, and T will be amended to require that a
certificate of inspection be based on the condition that the vessel
meets the requirements of 33 CFR subchapter H and specifically this
part.
Foreign vessels that have on board a valid International Ship
Security Certificate that attests to the vessel's compliance with
International Convention for Safety of Life at Sea, 1974, (SOLAS) and
the ISPS Code, part A, and the relevant provisions in the ISPS Code,
part B, of will be deemed in compliance with this part, except for
those sections otherwise specified. Foreign vessel compliance will be
verified during Port State Control verification exams.
The interim rule also affects the Notice of Arrival rule in part
160 of title 33, U.S. Code. These changes provide the Coast Guard with
additional information essential to our exercise of Port State Control
functions and to our imposition of control and compliance measures on
foreign vessels bound for a port or place in the U.S., consistent with
MTSA and with SOLAS regulation XI-2/9. A foreign vessel already covered
by the Notice of Arrival rule will have to provide information about
its International Ship Security Certificate and its implementation of
an approved security plan.
As required by SOLAS Chapter XI-2 Regulation 3 and the ISPS Code,
part A, section 5, the Coast Guard has published additional
requirements for vessels calling in the U.S. in Sec. Sec. 104.240 and
104.255 of 33 CFR 104. These sections provide the U.S. requirements for
setting and communicating changes in Maritime Security Level,
completing Declarations of Security, and additional instructions for
all vessels when Maritime Security Level 3 is set.
Waivers
The waiver section details procedures for requesting a waiver for
the benefit of vessel owners or operators who find specific
requirements of the rulemaking to be unnecessary.
Equivalents
The equivalents section details procedures for requesting an
equivalency for specific requirements of the rulemaking. Equivalents
are intended to allow vessel owners or operators to provide an
alternative provision or arrangement that provides the same level of
security as a specific requirement contained within this part.
Alternative Security Program
This part makes provision to allow owners or operators of vessels
on domestic voyages only to implement an Alternative Security Program
that has been reviewed and accepted by the Commandant (G-MP), to meet
the requirements of this part. Alternative Security Programs must be
comprehensive and based on a security assessment to demonstrate it
meets the intent of each section of this part. Owners or operators are
required to implement an appropriate Alternative Security Program in
its entirety to be deemed in compliance with this part.
[[Page 39295]]
We also strongly encourage industry groups to develop and submit
``model programs,'' which would include a model Vessel Security Plan
and assessment of their own. A model program is one that, once
submitted and reviewed and approved by Commandant (G-MP), may be used
as a template for other vessels in the fleet. However, a Vessel
Security Plan constructed using a model plan would still require
submission for approval by the Coast Guard.
The process of the review and acceptance of model programs will be
the same as the process used for the Alternative Security Program. The
submission of a model program will need to include a general assessment
for the applicable segment of the industry for which the model program
is intended. The submission must also include how owners or operators
will implement the model program including performing an operational
and vessel-specific assessment and verification of implementation. Once
these model programs are accepted, the programs could be used by
industry to develop vessel-specific plans and assessments for Coast
Guard approval.
Evaluating Submissions of Waivers, Equivalents, and Alternative
Security Programs
In our evaluation of waivers, equivalencies, and Alternative
Security Programs, the Coast Guard will accept a self-assessment or
demonstration using any risk management tools acceptable to the Coast
Guard. This demonstration may be requested to show that the proposed
waiver, equivalency or Alternative Security Program is at least as
effective as that intended by this interim rule.
Owner or Operator Responsibilities
The owner or operator of a vessel is generally responsible for all
requirements imposed by this part. These requirements include ensuring
the following: The performance of all vessel security duties; defining
the security organizational structure for each vessel; providing each
person(s) exercising security duties or responsibilities within that
structure with the support needed to fulfill those obligations; that
personnel receive training, drills, and exercises enabling them to
perform their assigned security duties; and that adequate coordination
of security issues between vessels and facilities take place.
Company Security Officer (CSO)
This interim rule requires that each vessel owner or operator
appoint a Company Security Officer, designated in writing, for their
fleet of vessels or for each individual vessel that is owned or
operated by the company. The Company Security Officer may be a full
time or collateral position. A Company Security Officer may perform
other duties within the owner's or operator's organization provided he
or she is able to perform the duties and responsibilities required of
the Company Security Officer. The Company Security Officer may also be
the Vessel Security Officer, provided he or she is also able to perform
the duties and responsibilities required of the Company Security
Officer. Generally, this provision is for vessels operating on
restricted routes in a single COTP zone and for unmanned vessels.
The Company Security Officer must have a general knowledge in a
range of issues, such as company security organization, relevant
international laws, domestic regulations, current security threats and
patterns, risk assessment methodology, and in conducting audits,
inspections, and control procedures.
The CSO may delegate the duties imposed on the Company Security
Officer by this part, but remains responsible for the performance of
those duties. The most important duties of the Company Security Officer
include ensuring that: A Vessel Security Assessment is conducted; a
Vessel Security Plan is developed, approved, maintained, and
implemented; the Vessel Security Plan is modified when necessary;
vessel security activities are audited as appropriate; problems
identified by audits or inspections are addressed in a timely fashion;
adequate security training; and communication and cooperation between
the vessel and facilities.
Vessel Security Officer (VSO)
This interim rule requires that a Vessel Security Officer is
designated in writing for each vessel. The Vessel Security Officer must
have a general knowledge in a range of issues, such as security
administration, relevant international laws, domestic regulations,
current security threats and patterns, risk assessment methodology, and
in conducting audits, inspections, and control procedures. The most
important duties that must be performed by the Vessel Security Officer
includes implementing a Vessel Security Plan; ensuring that adequate
training is provided to vessel personnel; ensuring the vessel is
operating in accordance with the plan and in continuous compliance with
part 104; and periodically auditing and updating the Vessel Security
Assessment and Vessel Security Plan. The Vessel Security Officer may
assign security duties to other vessel personnel; however, the Vessel
Security Officer remains responsible for security duties.
Training
Required training for vessel personnel must be specified in the
Vessel Security Plan. Specific security training courses for the Vessel
Security Officer and vessel personnel will not be required by the Coast
Guard. While formal training may be necessary, we will not mandate
specifics. Vessel owners or operators must certify that security
personnel are, in fact, properly trained to perform their duties. The
types of training required must also be consistent with the training
requirements described in this subpart. The Vessel Security Officer is
also required to ensure that vessel security persons possess necessary
training to maintain the overall security of the facility.
Drills and Exercises Requirements
Exercises are required to ensure the adequacy of the Facility
Security Plans and are required to be conducted at least once each
calendar year, with not more than 18 months between exercises. Drills,
which are smaller in scope than exercises, must be conducted at least
every 3 months.
Exercises may be vessel specific, or as part of a cooperative
exercise program with applicable Facility and Vessel Security Plans or
Port exercises. Exercises for security may be combined with other
required exercises, as appropriate.
Security Systems and Equipment Maintenance
Procedures and/or policies must be developed and implemented to
ensure security systems and equipment are tested and operated in
accordance with the instructions of the manufacturer and ready for use.
Security Measures
Security measures for specific activities must be scalable in order
to provide increasing levels of security at increasing Maritime
Security (MARSEC) Levels. An effective security program relies on
detailed procedures that clearly indicate the preparation and
prevention activities that will occur at each threat level and the
organizations, or personnel, who are responsible for carrying out those
activities. Security Measures must be developed for the following
activities:
[sbull] Security measures for access control;
[[Page 39296]]
[sbull] Security measures for restricted areas;
[sbull] Security measures for handling cargo;
[sbull] Security measures for delivery of vessel stores and
bunkers; and
[sbull] Security measures for monitoring.
Security Incident Procedures
Each vessel owner or operator must develop security incident
procedures for responding to transportation security incidents. The
security incident procedures must explain the vessel's reaction to an
emergency, including the notification and coordination with local,
State, and federal authorities and Under Secretary of Emergency
Preparedness and Response. The security incident procedures must also
explain actions for securing the vessel and evacuating passengers and
crew.
Declaration of Security (DoS)
A Declaration of Security provides a means for ensuring that
critical security concerns are properly addressed prior to and during a
vessel-to-facility interface. The Declaration of Security addresses
security by delineating responsibilities for security arrangements and
procedures between a vessel and a facility. This requirement is similar
to the existing U.S. practice for vessel-to-facility oil transfer
proceedings.
Only certain passenger vessels and vessels carrying Certain
Dangerous Cargoes will complete a Declaration of Security for every
evolution regardless of the Maritime Security Level. At Maritime
Security Levels 2 and 3, all vessels and facilities would need to
complete the Declaration of Security.
Vessels that frequently call on the same facility may execute a
continuing Declaration of Security--a single Declaration of Security
for multiple visits.
All Declarations of Security must state the security activities for
which the facility and vessel are responsible during vessel-to-vessel
or vessel-to-facility interfaces. Declarations of Security must be kept
as part of the vessel's recordkeeping.
Vessels that are operating at a higher Security Level than the port
that the vessel is calling at may request a Declaration of Security
with the facility, and the facility must complete a Declaration of
Security with the vessel. Additionally, a facility may request that a
vessel complete a Declaration of Security with the facility as
appropriate for that facility's Security Plan or direction of the COTP.
If the facility owner or operator requires a Declaration of Security,
the vessel must comply. The conditions under which a vessel may request
a Declaration of Security from the facility must be included in the
Vessel Security Plan.
Vessel Security Assessment (VSA)
This interim rule requires all vessels covered by part 104 to
conduct a Vessel Security Assessment, which is an essential and
integral part of the process for developing and updating the required
Vessel Security Plan. The Vessel Security Assessment is based in part
on an on-scene security survey, which details the overall assessment of
the vessel including any existing security measures, and includes a
written report documenting the vulnerabilities and mitigation
strategies of the vessel. As discussed in the interim rule
``Implementation of National Maritime Security Initiatives'' (USCG-
2003-14792), 33 CFR 101.510 lists the various assessment tools that may
be used to meet the risk assessment requirements in parts 104 through
106 of this subchapter. The assessment tools listed are sufficient to
enable the development of the Vessel Security Program. This list is
also provided to ensure that the Vessel Security Assessment is
consistent with other modal assessments. We are working with other
agencies to develop assessment tools that are sensitive to the
diversity of the National Marine Transportation System to ensure
consistent levels of security throughout the entire System. The
designated Company Security Officer must conduct the on-scene survey by
examining and evaluating existing vessel protective measures,
procedures, and operations. Using the information obtained in the on-
scene survey, the Company Security Officer must ensure the completion
ot the Vessel Security Assessment. The Vessel Security Assessment
identifies and evaluates, in writing, existing security measures; key
vessel operations; the likelihood of possible threats to key vessel
operations; and weaknesses, including human factors in the
infrastructure, policies, and procedures of the vessel.
It also includes a written summary of how the assessment was
conducted; each vulnerability found during the assessment; and
countermeasures that could be used to address each vulnerability. The
Vessel Security Assessment must be reviewed and updated each time the
Vessel Security Plan is revised and when the Vessel Security Plan is
submitted for re-approval every 5 years.
Vessel Security Plan (VSP)
This interim rule requires each vessel owner or operator to develop
an effective Vessel Security Plan that incorporates detailed
preparedness, prevention, and response activities for each Maritime
Security Level, along with the organizations or personnel responsible
for carrying out those activities. The requirements discussed in this
part are consistent with requirements in the ISPS Code.
The Vessel Security Plan is a document, written in English, that is
prepared in response to the Vessel Security Assessment and approved by
the Coast Guard. A single Vessel Security Plan can apply to more than
one vessel to the extent that they share physical characteristics and
operations.
In addition to other things, the Vessel Security Plan must: respond
specifically to any recommendations made by the Vessel Security
Assessment; describe how, at each Maritime Security Level, the vessel
will apply the security measures required in these regulations; state
the Master's authority; must detail the organizational structure of
security for the vessel; detail the duties and responsibilities of all
vessel and company personnel with a security role; detail the vessel's
relationship with the Company, facilities, other vessels, and relevant
authorities with security responsibility; provide regular audit of the
Vessel Security Plan and its amendment in response to experience or
changing circumstances; and establish the procedures needed to assess
the continuing effectiveness of security procedures and all security
related equipment and systems, including procedures for identifying and
responding to equipment or systems failure or malfunction.
The responsibility for barge security lies not only with the barge
owner or operator but also with the towing vessel, fleeting facility,
and facility where the barge is moored. Hence, security plans for
vessels and facilities that interface with unmanned vessels (e.g.
unmanned barges) must include additional provisions to address the risk
of the unmanned vessels that they will receive or handle. Given the
simple design of a typical barge and the wide range of products that
may be transported within a single tow or moored within a single
fleeting area, the security assessments of facilities and towing
vessels should include the barge sizes and cargos that would result in
a worst-case scenario (i.e. greatest potential consequence due to cargo
volatility, toxicity, or environmental damage), and the most probable
vulnerability scenarios.
Vessel and facility security plans must address how the vessel or
facility will apply the necessary security measures when engaged with a
barge.
[[Page 39297]]
Therefore, the security plans need to include procedures and security
measures to protect the towing vessel or the facility that controls the
barge(s). In addition, the security plans need to include procedures
for interfacing with other vessels and facilities, including how it
will transfer custody of the barge to the next facility or towing
vessel.
Facilities and towing vessels are not required to have a copy of
the security plan for each barge it handles if the facility or towing
vessel security plan includes appropriate procedures and security
measures to ensure the security of all barges in its care. It is the
responsibility of all Security Officers (barge's Vessel Security
Officer, the towing vessel's Vessel Security Officer, the Company
Security Officer, and the Facility Security Officer) to coordinate
plans and ensure, possibly through a written contract or other
agreement, that each party that receives the barge understands and is
capable of implementing specific security measures for it. This may
entail providing a copy of the applicable sections of a barge's Vessel
Security Plan to the parties involved.
As a result, a barge's Vessel Security Plan may be minimal in
content, containing personnel contact information and an assessment of
the worst-case damage it might produce. The security plan must explain
how security will be coordinated with each towing vessel, fleeting
facility, and facility that handles the barge. Existing plans and
procedures, such as vessel response plans, may be used or referenced as
part of the Vessel Security Plan.
Like other Vessel Security Plans, the barge's Vessel Security Plan
must also include specific security incident procedures to mitigate the
consequences of damage and/or a release of the barge's cargo.
Foreign vessels required to comply with SOLAS are not required to
submit their Vessel Security Plans to the Coast Guard for approval.
Pursuant to SOLAS and the ISPS Code, these plans are required to be
approved by the flag administration or Recognized Security Organization
(RSO). Approval can only be granted by the flag administration or the
RSO after verification that the Vessel Security Plan meets the
requirements of SOLAS and the ISPS Code, part A, taking into account
the ISPS Code, part B. Even so, the Coast Guard will verify that
foreign SOLAS vessels have an approved Vessel Security Plan that fully
complies with SOLAS and the ISPS Code, and thereby meets the
requirements of this part, through an aggressive Port State Control
program. Noncompliance will subject the vessel to a range of control
and compliance measures, which could include denial of entry into port.
If, during an expanded examination, those sections of the Vessel
Security Plan the port state is allowed to review are not written in
English, a vessel may be delayed while translator services are
acquired. To properly reflect the full range of legal authorities to
control vessel movement in such cases, and without affecting other
legal authorities, this rule amends the authority provision in 33 CFR
part 165 to cite the anti-terrorism authorities in 33 U.S.C. 1226 as an
additional basis for taking action under 33 CFR part 165.
However, in certain cases foreign vessel owners or operators will
be required to submit the Vessel Security Plan to the U.S. for
approval. Generally, these vessels fall into three categories: (1) A
commercial vessel meeting the applicability standards of these
regulations from a nation not signatory to SOLAS; (2) Canadian
commercial vessels operating solely on the Great Lakes that (a) are
greater than 100 gross register tons or (b) carry more than 12
passengers; and (3) other foreign commercial vessels meeting the
applicability standards of this part, but below 500 gross tonnage, ITC
and above 100 gross register tons.
Submission and Approval of Security Plan
The Vessel Security Plan, including the Vessel Security Assessment
report, must be submitted to and reviewed by the Commanding Officer,
Marine Safety Center (MSC). Once the MSC finds that the plan meets the
security requirements in part 104, the submitter will receive an
approval letter that may contain conditions of the approval.
If the MSC requires more time than is indicated in the requirements
of the interim rule to review a submitted Vessel Security Plan, the MSC
may return to the submitter a written acknowledgement stating that the
Coast Guard is currently reviewing the Vessel Security Plan submitted
for approval, and that the vessel may continue to operate so long as
the vessel remains in compliance with the submitted Vessel Security
Plan.
If the MSC finds that the Vessel Security Plan does not meet the
security requirements, the plans would be returned to the vessel with a
disapproval letter with an explanation of why the plan does not meet
the part 104 requirements.
The Coast Guard must review Vessel Security Plans every time:
[sbull] The Vessel Security Assessment is altered;
[sbull] Failures are identified during an exercise of the Vessel
Security Plan; and
[sbull] There is a change in ownership or operational control of
the vessel or there are amendments to the Vessel Security Plan.
Existing Regulations
33 CFR part 120, Security of Vessels, currently exists but applies
only to cruise ships. Until July 2004, 33 CFR part 120 will remain in
effect. Vessels that were required to comply with part 120 will now
also be required to meet the requirements of this part including Sec.
104.295, titled Additional requirements--Cruise Ships. The requirements
in Sec. 104.295 generally capture the existing requirements in part
120 that are specific for cruise ships and captures additional detail
to the requirements of SOLAS Chapter XI-2 and the ISPS Code.
The Coast Guard Notice of Arrival regulation, 33 CFR part 160, is
being amended by this interim rule to require the advance submission of
additional security related information. This information is essential
to assist Coast Guard officials in exercising Port State Control
functions, including what control and compliance measures, if any,
should be imposed on vessels bound for a port or place in the U.S.,
consistent with 46 U.S.C. 70103 and 70110 or SOLAS regulation XI-2/9.
The Notice of Arrival amendments also provide an initial indication
to the U.S. that owners and operators are taking responsibility for
fully complying with the requirements in this part. For example,
vessels will be required to provide a statement that the vessel is in
compliance with the ISPS Code prior to entry into ports in the U.S. by
informing the National Vessel Movement Center of the type and status of
its International Ship Security Certificate. Those vessels required to
have on board an approved Vessel Security Plan will also have to
declare in the Notice of Arrival submission that they are implementing
their Vessel Security Plan. Furthermore, because it is not the intent
of the ISPS Code to allow consecutive Interim International Ship
Security Certificates, the owner or operator of a vessel holding a
consecutive Interim International Ship Security Certificate will also
be required to provide an explanation as to why the vessel holds a
consecutive Interim International Ship Security Certificate prior to
entry.
The information we are requiring in this Notice of Arrival
amendment contains elements similar to those we mandate to verify
compliance with the International Management Code for the Safe
Operation of Ships and for
[[Page 39298]]
Pollution Prevention. Most of this information will be required only
after the new SOLAS amendments and ISPS Code go into effect, in July
2004. However, after January 1, 2004, if a foreign vessel already
possesses an International Ship Security Certificate and an approved
Vessel Security Plan, we will require it to provide some basic
information about the International Ship Security Certificate and
declare if it is implementing the Vessel Security Plan. The purpose of
collecting this data in the first half of 2004 is to help us gauge
international progress toward meeting the July 1, 2004, entry into
force date.
Regulatory Assessment
This interim rule is a ``significant regulatory action'' under
section 3(f) of Executive Order 12866, Regulatory Planning and Review,
and has been reviewed by the Office of Management and Budget 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 Cost
Assessment is available in the docket as indicated under ADDRESSES.
Cost Assessment
For the purposes of good business practice or regulations
promulgated by other Federal and State agencies, many companies already
have spent a substantial amount of money and resources to upgrade and
improve security. The costs shown in this assessment do not include the
security measures these companies have already taken to enhance
security.
We realize that every company engaged in maritime commerce would
not implement the interim rule exactly as presented in this assessment.
Depending on each company's choices, some companies could spend much
less than what is estimated herein while others could spend
significantly more. In general, we assume that each company would
implement the interim rule based on the type of vessels or facilities
it owns or operates and whether it engages in international or domestic
trade.
This assessment presents the estimated cost if vessels are
operating at Maritime Security Level 1, the current level of operations
since the events of September 11, 2001. We also estimated the costs for
operating for a brief period at Maritime Security Level 2, an elevated
level of security.
We do not anticipate that implementing the interim rule will
require additional manning aboard vessels; existing personnel can
assume the duties envisioned.
The interim rule will affect about 10,300 U.S. flag SOLAS, domestic
(non-SOLAS), and about 70 foreign non-SOLAS vessels.
The estimated cost of complying with the interim rule is Present
Value (PV) $1.368 billion (2003-2012, 7 percent discount rate).
Approximately PV $248 million of this total is attributable to U.S.
flag SOLAS vessels. Approximately PV $1.110 billion is attributable to
domestic vessels (non-SOLAS), and PV $10 million is attributable to
foreign non-SOLAS vessels. In the first year of compliance, the cost of
purchasing equipment, hiring security officers, and preparing paperwork
is an estimated $218 million (non-discounted, $42 million for the U.S.
flag SOLAS fleet, $175 million for the domestic fleet, $1 million for
the foreign non-SOLAS fleet). Following initial implementation, the
annual cost of compliance is an estimated $176 million (non-discounted,
$32 million for the U.S. flag SOLAS fleet, $143 million for the
domestic fleet, $1 million for the foreign non-SOLAS fleet).
For the U.S. flag SOLAS fleet, approximately 52 percent of the
initial cost is for hiring Company Security Officers and training
personnel, 29 percent is for vessel equipment, 12 percent is for
assigning Vessel Security Officers to vessels, and 7 percent is
associated with paperwork (Vessel Security Assessment and Vessel
Security Plan). Following the first year, approximately 72 percent of
the cost is for Company Security Officers and personnel training, 3
percent is for vessel equipment, 10 percent is for drilling, 15 percent
is for Vessel Security Officers, and less than 1 percent is associated
with paperwork. Company Security Officers and training are the primary
cost drivers for U.S. flag SOLAS vessels.
For the domestic fleet, approximately 51 percent of the initial
cost is for hiring Company Security Officers and training personnel, 29
percent is for vessel equipment, 14 percent is for assigning Vessel
Security Officers to vessels, and 6 percent is associated with
paperwork (Vessel Security Assessments and Vessel Security Plans).
Following the first year, approximately 61 percent of the cost is for
Company Security Officers and training, 6 percent is for vessel
equipment, 11 percent is for drilling, 22 percent is for VSOs, and less
than 1 percent is associated with paperwork. As with SOLAS vessels,
Company Security Officers are the primary cost driver for the domestic
fleet.
We estimated approximately 135,000 burden hours for paperwork
during the first year of compliance (33,000 hours for U.S.-flag SOLAS,
101,000 hours for the domestic fleet, 1,000 hours for the foreign non-
SOLAS fleet). We estimated approximately 12,000 burden hours annually
following full implementation of the interim rule (2,000 hours for
U.S.-flag SOLAS, 10,000 hours for the domestic fleet, less than 1,000
hours for the foreign non-SOLAS fleet).
We also estimated the annual cost for going to an elevated security
level, Maritime Security Level 2, in response to increased threats. The
duration of the increased security level will be entirely dependent on
intelligence received. For this assessment, we estimated costs for
Maritime Security Level 2 using the following assumptions: all ports
will go to Maritime Security Level 2 at once, each elevation will last
21 days, and the elevation will occur twice a year. The estimated cost
associated with these conditions is $235 million annually.
Benefit Assessment
This interim rule is one of six interim rules that implement
national maritime security initiatives concerning general provisions,
Area Maritime Security (ports), vessels, facilities, Outer Continental
Shelf (OCS) facilities, and AIS. The Coast Guard used the National Risk
Assessment Tool (N-RAT) to assess benefits that would result from
increased security for vessels, facilities, OCS facilities, and ports.
The N-RAT considers threat, vulnerability, and consequences for several
maritime entities in various security-related scenarios. For a more
detailed discussion on the N-RAT and how we employed this tool, refer
to Applicability of National Maritime Security Initiatives in the
interim rule titled ``Implementation of National Maritime Security
Initiatives'' (USCG-2003-14792), published elsewhere in today's Federal
Register. For this benefit assessment, the Coast Guard used a team to
calculate a risk score for each entity and scenario before and after
the implementation of required security measures. The difference in
before and after scores indicated the benefit of the proposed action.
We recognized that the interim rules are a ``family'' of rules that
will reinforce and support one another in their implementation. We have
ensured, however, that risk reduction that is credited in one
rulemaking is not also credited in another. For a more detailed
discussion on the benefit assessment and how we addressed the potential
to double-count the risk reduced, refer to Benefit Assessment in the
interim rule
[[Page 39299]]
titled ``Implementation of National Maritime Security Initiatives''
(USCG-2003-14792) published elsewhere in today's Federal Register.
We determined annual risk points reduced for each of the six
interim rules using the N-RAT. The benefits are apportioned among the
Vessel, Facility, OCS Facility, AMS, and AIS requirements. As shown in
Table 1, the implementation of Vessel Security Plans for the affected
population reduces 781,285 risk points annually through 2012. The
benefits attributable for part 101--General Provisions--were not
considered separately since it is an overarching section for all the
parts.
Table 1.--Annual Risk Points Reduced by the Interim Rules
----------------------------------------------------------------------------------------------------------------
Annual risk points reduced by rulemaking
----------------------------------------------------------------
OCS
Maritime entity Vessel Facility facility
security security security AMS plans AIS
plans plans plans
----------------------------------------------------------------------------------------------------------------
Vessels........................................ 778,633 3,385 3,385 3,385 1,448
Facilities..................................... 2,025 469,686 ........... 2,025 ...........
OCS Facilities................................. 41 ........... 9,903 ........... ...........
Port Areas..................................... 587 587 ........... 129,792 105
--------------
Total...................................... 781,285 473,659 13,288 135,202 1,553
----------------------------------------------------------------------------------------------------------------
Once we determined the annual risk points reduced, we discounted
these estimates to their present value (7 percent discount rate, 2003-
2012) so that they could be compared to the costs. We presented the
cost effectiveness, or dollars per risk point reduced, in two ways:
first, we compared the first-year cost and first-year benefit because
first-year cost is the highest in our assessment as companies develop
security plans and purchase equipment. Second, we compared the 10-year
PV cost and the 10-year PV benefit. The results of our assessment are
presented in Table 2.
Table 2.--First-Year and 10-Year PV Cost and Benefit of the Interim Rules
----------------------------------------------------------------------------------------------------------------
Interim rule
-------------------------------------------------------------------------------
Item Vessel Facility OCS facility
security plans security plans security plans AMS Plans AIS *
----------------------------------------------------------------------------------------------------------------
First-Year Cost (millions)...... $218 $1,125 $3 $120 $41
First-Year Benefit.............. 781,285 473,659 13,288 135,202 1,553
First-Year Cost Effectiveness ($/ $279 $2,375 $205 $890 $26,391
Risk Point Reduced)............
10-Year PV Cost (millions)...... $1,368 $5,399 $37 $477 $42
10-Year PV Benefit.............. 5,871,540 3,559,655 99,863 1,016,074 11,671
10-Year PV Cost Effectiveness ($/ $233 $1,517 $368 $469 $3,624
Risk Point Reduced)............
----------------------------------------------------------------------------------------------------------------
* Cost less monetized safety benefit.
Small Entities
Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we
considered whether this interim rule would have a significant economic
impact on a substantial number of small entities. The term ``small
entities'' comprises small businesses, not-for-profit organizations
that are independently owned and operated and are not dominant in their
fields, and governmental jurisdictions with populations of less than
50,000. This interim rule does not require a general notice of proposed
rulemaking and, therefore, is exempt from the requirements of the
Regulatory Flexibility Act. Although this interim rule is exempt, we
have reviewed it for potential economic impacts on small entities. An
Initial Regulatory Flexibility Analysis discussing the impact of this
interim rule on small entities is available in the docket where
indicated under ADDRESSES.
U.S. Flag SOLAS Vessels
We estimated that 88 companies that own U.S. flag SOLAS vessels
will be affected by the interim rule. We researched these companies and
found revenue data for 32 of them (36 percent). The revenue impacts for
these vessels are presented in Table 3. In this analysis, we considered
the impacts to small businesses during the first year of
implementation, when companies will be conducting assessments,
developing security plans, and purchasing equipment. We also considered
annual revenue impacts following the first year, when companies will
have the assessments and plans complete, but will need to conduct
quarterly drilling.
Table 3.--Estimated Revenue Impacts for Small Businesses That Own U.S. Flag SOLAS Vessels
----------------------------------------------------------------------------------------------------------------
Initial Annual
-----------------------------------------------------------------------
Number of small Percent of small Number of small Percent of small
Percent impact on annual revenue entities with entities with entities with entities with
known revenue known revenue known revenue known revenue
data data data data
----------------------------------------------------------------------------------------------------------------
0-3..................................... 8 25 8 25
3-5..................................... 3 9 3 9
[[Page 39300]]
5-10.................................... 1 3 4 13
10-20................................... 6 19 4 13
20-30................................... 4 13 3 9
30-40................................... 1 3 2 6
40-50................................... 3 9 2 6
50........................... 6 19 6 19
-------------------
Total................................. 32 100 32 100
----------------------------------------------------------------------------------------------------------------
We assume that the remaining 56 entities that did not have revenue
data are very small businesses. We assume that the interim rule may
have a significant economic impact on these businesses.
Domestic Vessels
We estimated that 1,683 companies that own domestic vessels will be
affected by the interim rule. We researched these companies and found
revenue data for 822 of them (49 percent). The revenue impacts for
these vessels are presented in Table 4. As with U.S. flag SOLAS
vessels, we considered the impacts to small businesses during the first
year of implementation, when companies will be conducting assessments,
developing security plans, and purchasing equipment. We also considered
annual revenue impacts following the first year, when companies will
have the assessments and plans complete, but will need to conduct
quarterly drilling.
Table 4.--Estimated Revenue Impacts for Small Businesses That Own Domestic Vessels
----------------------------------------------------------------------------------------------------------------
Initial Annual
-----------------------------------------------------------------------
Number of small Percent of small Number of small Percent of small
Percent impact on annual revenue entities with entities with entities with entities with
known revenue known revenue known revenue known revenue
data data data data
----------------------------------------------------------------------------------------------------------------
0-3..................................... 366 45 393 48
3-5..................................... 86 10 87 11
5-10.................................... 171 21 170 21
10-20................................... 85 10 64 8
20-30................................... 34 4 37 5
30-40................................... 19 2 16 2
40-50................................... 9 1 16 2
50........................... 52 6 39 5
-------------------
Total................................. 822 100 822 100
----------------------------------------------------------------------------------------------------------------
We assumed that the remaining 861 entities that did not have
revenue data are very small businesses. We assumed that the interim
rule may have a significant economic impact on these businesses.
Assistance for Small Entities
Under section 213(a) of the Small Business Regulatory Enforcement
Fairness Act of 1996 (Pub. L. 104-121), we want to assist small
entities in understanding this interim rule so that they can better
evaluate its effects on them and participate in the rulemaking. If the
interim rule would affect your small business, organization, or
governmental jurisdiction and you have questions concerning its
provisions or options for compliance, please consult Lieutenant Kevin
Oditt (G-MP), U.S. Coast Guard by telephone 202-267-1103, toll-free
telephone 1-800-842-8740 ext. 7-1103, or electronic mail
msregs@comdt.uscg.mil. Small businesses may send comments on the actions of Federal
employees who enforce, or otherwise determine compliance with, Federal
regulations to the Small Business and Agriculture Regulatory
Enforcement Ombudsman and the Regional Small Business Regulatory
Fairness Boards. The Ombudsman evaluates these actions annually and
rates each agency's responsiveness to small business. If you wish to
comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR
(1-888-734-3247).
Collection of Information
This interim rule calls for a collection of information under the
Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520). As defined in 5
CFR 1320.3(c), ``collection of information'' comprises reporting,
recordkeeping, monitoring, posting, labeling, and other, similar
actions. The title and description of the information collections, a
description of those who must collect the information, and an estimate
of the total annual burden follow. The estimate covers the time for
reviewing instructions, searching existing sources of data, gathering
and maintaining the data needed, and completing and reviewing the
collection.
This interim rule modifies two existing OMB-approved collections--
1625-0077 [formerly 2115-0622] and
[[Page 39301]]
1625-0100 [formerly 2115-0557]. Summaries of the revised collections
follow.
Title: Security Plans for Ports, Vessels, Facilities, and Outer
Continental Shelf Facilities and Other Security-Related Requirements.
OMB Control Number: 1625-0077
Summary of the Collection of Information: The Coast Guard requires
security assessments and plans for vessels. This interim rule provides
a framework to ensure adequate security planning, drilling, and
communication procedures by requiring vessels to develop and submit for
approval Vessel Security Assessments and Vessel Security Plans.
Need for Information: The primary need for information is to
identify the adequate security mitigating measures that will be
implemented when needed.
Proposed Use of Information: The information will be used to
identify and communicate the security mitigating measures to the Coast
Guard and necessary personnel.
Description of the Respondents: The Company Security Officer for
owners and operators of the affected vessels or another designated
person is responsible for developing the Vessel Security Assessment and
the Vessel Security Plan.
Number of Respondents: 2,202 Company Security Officers at the
affected companies.
Frequency of Response: Vessel Security Assessments and Vessel
Security Plans are to be submitted for approval initially, and will be
reviewed annually.
Burden of Response: Development burden for the Vessel Security
Assessments and Vessel Security Plans is estimated to be approximately
eight to 80 hours depending on the size of the company and the number
and types of vessels the company owns. Updating the assessments and
plans is estimated to be approximately one to four hours depending on
the size of the company and the number and types of vessels the company
owns.
Estimate of Total Annual Burden: Vessel Security Assessments and
Vessel Security Plans will have a total burden in the initial year of
135,269 hours. Annually, the total burden of the assessments and the
plans is 11,700 hours. For a summary of all revisions to this existing
OMB-approved collection, refer to Collection of Information in the
interim rule titled ``Implementation of National Maritime Security
Initiatives'' (USCG-2003-14792) published elsewhere in today's Federal
Register.
Title: Advance Notice of Arrival.
OMB Control Number: 1625-0100.
Summary of the Collection of Information: The Coast Guard requires
pre-arrival messages from any vessel entering a port or place in the
United States. This interim rule adds the requirement to communicate
security-related information about the vessel to the Coast Guard.
Need for Information: The primary need for information is to
identify the adequate security mitigating measures that will be
implemented when needed.
Proposed Use of Information: The information will be used to
identify and communicate the security mitigating measures to the Coast
Guard and necessary personnel.
Description of the Respondents: Respondents are owners and
operators of vessels that arrive at or depart from a port or place in
the United States after departing from foreign ports.
Number of Respondents: The existing OMB-approved collection number
of respondents is 10,367. This rule will not increase the number of
respondents.
Frequency of Response: The existing OMB-approved collection number
of responses is 68,289. This rule will not increase the number of
responses.
Burden of Response: The existing OMB-approved collection burden of
response is approximately 2.5 hours. Because the already approved Cargo
Declaration requirement (Table 160.206(a)(8), per Final Rule of May 22,
2003; USCG-2002-11865; 68 FR 27908) has been suspended, this rule will
not have a net increase in the burden.
Estimate of Total Annual Burden: The existing OMB-approved total
annual burden is 174,179 hours. This rule will not increase the burden.
However, due to an adjustment in the way the Coast Guard calculates the
burden, we estimate the total annual burden to be 173,904.
As required by the Paperwork Reduction Act of 1995 (44 U.S.C.
3507(d)), we have submitted a copy of this interim rule to the Office
of Management and Budget (OMB) for its review of the collection of
information. Due to the circumstances surrounding this temporary rule,
we asked for ``emergency processing'' of our request. We received OMB
approval for these collections of information on June 16, 2003. They
are valid until December 31, 2003.
We ask for public comment on the collection of information to help
us determine how useful the information is; whether it can help us
perform our functions better; whether it is readily available
elsewhere; how accurate our estimate of the burden of collection is;
how valid our methods for determining burden are; how we can improve
the quality, usefulness, and clarity of the information; and how we can
minimize the burden of collection.
If you submit comments on the collection of information, submit
them both to OMB and to the Docket Management Facility where indicated
under ADDRESSES, by the date under DATES.
You need not respond to a collection of information unless it
displays a currently valid control number from OMB. We received OMB
approval for these collections of information on June 16, 2003. They
are valid until December 31, 2003.
Federalism
An interim rule has implications for federalism under Executive
Order 13132, Federalism, if it has a substantial direct effect on State
or local governments and would either preempt State law or impose a
substantial direct cost of compliance on them. See the Federalism
section in the interim rule preamble titled ``Implementation of
National Maritime Security Initiatives'' (USCG-2003-14792) published
elsewhere in today's Federal Register for a discussion of our analysis
under this Executive Order.
Unfunded Mandates Reform Act
The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538)
requires Federal agencies to assess the effects of their discretionary
regulatory actions. In particular, the Act addresses actions that may
result in the expenditure by a State, local, or tribal government, in
the aggregate, or by the private sector of $100,000,000 or more in any
one year. This interim rule is exempted from assessing the effects of
the regulatory action as required by the Act because it is necessary
for the national security of the U.S. (2 U.S.C. 1503(5)).
Taking of Private Property
This interim rule will not effect a taking of private property or
otherwise have taking implications under Executive Order 12630,
Governmental Actions and Interference with Constitutionally Protected
Property Rights.
Civil Justice Reform
This interim rule meets applicable standards in sections 3(a) and
3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize
litigation, eliminate ambiguity, and reduce burden.
Protection of Children
We have analyzed this interim rule under Executive Order 13045,
[[Page 39302]]
Protection of Children from Environmental Health Risks and Safety
Risks. While this interim rule is an economically significant rule, it
does not create an environmental risk to health or risk to safety that
may disproportionately affect children.
Indian Tribal Governments
This interim rule does not have tribal implications under Executive
Order 13175, Consultation and Coordination with Indian Tribal
Governments, because it does not have a substantial direct effect on
one or more Indian tribes, on the relationship between the Federal
Government and Indian tribes, or on the distribution of power and
responsibilities between the Federal Government and Indian tribes.
Energy Effects
We have analyzed this interim rule under Executive Order 13211,
Actions Concerning Regulations That Significantly Affect Energy Supply,
Distribution, or Use. We have determined that it is not a ``significant
energy action'' under that order. Although it is a ``significant
regulatory action'' under Executive Order 12866, it is not likely to
have a significant adverse effect on the supply, distribution, or use
of energy. The Administrator of the Office of Information and
Regulatory Affairs has not designated it as a significant energy
action. Therefore, it does not require a Statement of Energy Effects
under Executive Order 13211.
This interim rule has a positive effect on the supply,
distribution, and use of energy. The interim rule provides for security
assessments, plans, procedures, and standards, which will prove
beneficial for the supply, distribution, and use of energy at increased
levels of maritime security.
Trade Impact Assessment
The Trade Agreement Act of 1979 (19 U.S.C. 2501-2582) prohibits
Federal agencies from engaging in any standards or related activities
that create unnecessary obstacles to the foreign commerce of the U.S.
Legitimate domestic objectives, such as safety and security, are not
considered unnecessary obstacles. The Act also requires consideration
of international standards and, where appropriate, that they be the
basis for U.S. standards. We have assessed the potential effect of this
interim rule and have determined that it would likely create obstacles
to the foreign commerce of the U.S. However, because these regulations
are being put in place in order to further a legitimate domestic
objective, namely to increase the security of the U.S., any obstacles
created by the regulation are not considered unnecessary obstacles.
Environment
We have considered the environmental impact of this interim rule
and concluded that under figure 2-1, paragraph (34)(a), (34)(c) and
(34)(d), of Commandant Instruction M16475.lD, this interim rule is
categorically excluded from further environmental documentation. This
interim rule concerns security assessments, plans, training, and the
establishment of security positions that will contribute to a higher
level of marine safety and security for vessels and U.S. ports. A
``Categorical Exclusion Determination'' is available in the docket
where indicated under ADDRESSES or SUPPLEMENTARY INFORMATION.
This rulemaking will not significantly impact the coastal zone.
Further, the rulemaking and the execution of this interim rule will be
done in conjunction with appropriate state coastal authorities. The
Coast Guard will, therefore, comply with the requirements of the
Coastal Zone Management Act while furthering its intent to protect the
coastal zone.
List of Subjects
33 CFR Part 104
Incorporation by reference, Maritime security, Reporting and
recordkeeping requirements, Security measures, Vessels.
33 CFR Part 160
Administrative practice and procedure, Harbors, Hazardous material
transportation, Marine safety, Navigation (water), Reporting and
recordkeeping requirement, Vessels, Waterways.
46 CFR Part 2
Marine safety, Maritime security, Reporting and recordkeeping
requirements, Vessels.
46 CFR Part 31
Cargo vessels, Inspection and certification, Maritime security.
46 CFR Part 71
Inspection and certification, Maritime security, Passenger vessels.
46 CFR Part 91
Cargo vessels, Inspection and Certification, Maritime security.
46 CFR Part 115
Fire prevention, Inspection and certification, Marine safety,
Maritime security, Reporting and recordkeeping requirements, Vessels.
46 CFR Part 126
Cargo vessels, Inspection and certification, Marine safety,
Maritime security, Reporting and recordkeeping requirements.
46 CFR Part 176
Fire prevention, Inspection, Marine safety, Maritime security,
Reporting and recordkeeping requirements, Vessels.
0
For the reasons discussed in the preamble, the Coast Guard adds 33 CFR
part 104 and amends 33 CFR part 160 and part 165, and 46 CFR parts 2,
31, 71, 91, 115, 126, and 176 as follows:
0
1. Add part 104 to subchapter H of chapter I title 33 of the CFR to
read as follows:
PART 104--VESSEL SECURITY
Subpart A--General
Sec.
104.100 Definitions.
104.105 Applicability.
104.110 Exemptions.
104.115 Compliance dates.
104.120 Compliance documentation.
104.125 Noncompliance.
104.130 Waivers.
104.135 Equivalents.
104.140 Alternative Security Programs.
104.145 Maritime Security (MARSEC) Directive.
104.150 Right to appeal.
Subpart B--Vessel Security Requirements
104.200 Owner or operator.
104.205 Master.
104.210 Company Security Officer (CSO).
104.215 Vessel Security Officer (VSO).
104.220 Company or vessel personnel with security duties.
104.225 Security training for all other vessel personnel.
104.230 Drill and exercise requirements.
104.235 Vessel recordkeeping requirements.
104.240 Maritime Security (MARSEC) Level coordination and
implementation.
104.245 Communications.
104.250 Procedures for interfacing with facilities and other
vessels.
104.255 Declaration of Security (DoS).
104.260 Security systems and equipment maintenance.
104.265 Security measures for access control.
104.270 Security measures for restricted areas.
104.275 Security measures for handling cargo.
104.280 Security measures for delivery of vessel stores and bunkers.
104.285 Security measures for monitoring.
104.290 Security incident procedures.
104.292 Additional requirements--passenger vessels and ferries.
104.295 Additional requirements--cruise ships.
104.297 Additional requirements--vessels on international voyages.
[[Page 39303]]
Subpart C--Vessel Security Assessment (VSA)
104.300 General.
104.305 Vessel Security Assessment (VSA) requirements.
104.310 Submission requirements.
Subpart D--Vessel Security Plan (VSP)
104.400 General.
104.405 Format of the Vessel Security Plan (VSP).
104.410 Submission and approval.
104.415 Amendment and audit.
Authority: 33 U.S.C. 1226, 1231; 46 U.S.C. Chapter 701; 50
U.S.C. 191; 33 CFR 1.05-1, 6.04-11, 6.14, 6.16, and 6.19; Department
of Homeland Security Delegation No. 0170.
Subpart A--General
Sec. 104.100 Definitions.
Except as specifically stated in this subpart, the definitions in
part 101 of this subchapter apply to this part.
Sec. 104.105 Applicability.
(a) This part applies to the owner or operator of any:
(1) Mobile Offshore Drilling Unit (MODU), cargo, or passenger
vessel subject to the International Convention for Safety of Life at
Sea, 1974, (SOLAS);
(2) Foreign commercial vessel greater than 100 gross register tons
not subject to SOLAS;
(3) Commercial vessel greater than 100 gross register tons subject
to 46 CFR subchapter I, except commercial fishing vessels inspected
under 46 CFR part 105;
(4) Vessel subject to 46 CFR subchapter L;
(5) Passenger vessel subject to 46 CFR subchapters H or K;
(6) Other passenger vessel carrying more than 12 passengers that is
engaged on an international voyage;
(7) Barge subject to 46 CFR subchapters D or O;
(8) Barge subject to 46 CFR subchapter I that carries Certain
Dangerous Cargoes in bulk, or that is engaged on an international
voyage;
(9) Tankship subject to 46 CFR subchapters D or O; and
(10) Towing vessel greater than 8 meters in registered length that
is engaged in towing a barge or barges subject to this part.
(b) An owner or operator of any vessel not covered in paragraph (a)
of this section is subject to parts 101 through 103 of this subchapter.
(c) Foreign vessels that have on board a valid International Ship
Security Certificate (ISSC) that attests to the vessel's compliance
with SOLAS Chapter XI-2 and the ISPS Code, part A (Incorporated by
reference, see Sec. 101.115 of this chapter), and having taken into
account the relevant provisions in the ISPS Code, part B, will be
deemed to be in compliance with this part, except for Sec. Sec.
104.240, 104.255, 104.292, and 104.295 as appropriate.
(d) Except pursuant to international treaty, convention, or
agreement to which the U.S. is a party, this part does not apply to any
foreign vessel that is not destined for, or departing from, a port or
place subject to the jurisdiction of the U.S. and that is in:
(1) Innocent passage through the territorial sea of the U.S.; or
(2) Transit through the navigable waters of the U.S. that form a
part of an international strait.
Sec. 104.110 Exemptions.
This part does not apply to warships, naval auxiliaries or other
vessels owned or operated by a government and used only on government
non-commercial service.
Sec. 104.115 Compliance dates.
(a) On or before December 29, 2003, each vessel owner or operator
must submit to the Commanding Officer, Marine Safety Center for each
vessel the Vessel Security Plan described in subpart D of this part for
review and approval.
(b) On or before June 30, 2004, each vessel must be operating in
compliance with this part.
(c) On or before July 1, 2004, foreign vessels must carry on board
a valid International Ship Security Certificate that certifies that the
verifications required by Section 19.1 of part A of the ISPS Code
(Incorporated by reference, see Sec. 101.115 of this chapter) have
been completed, that the vessel meets the applicable requirements of
SOLAS Chapter XI-2 (Incorporated by reference, see Sec. 101.115 of
this chapter) and the ISPS Code, part A, and that the vessel is
provided with an approved security plan.
Sec. 104.120 Compliance documentation.
(a) Each vessel owner or operator subject to this part must ensure,
no later than 1 July 2004, that copies of the following documents are
carried on board the vessel and are made available to the Coast Guard
upon request:
(1) The approved Vessel Security Plan (VSP) and any approved
revisions or amendments thereto, and a letter of approval from the
Commanding Officer, Marine Safety Center (MSC);
(2) The VSP submitted for approval and a current acknowledgement
letter from the Commanding Officer, MSC, stating that the Coast Guard
is currently reviewing the VSP submitted for approval, and that the
vessel may continue to operate so long as the vessel remains in
compliance with the submitted plan;
(3) For vessels operating under a Coast Guard-approved Alternative
Security Program as provided in Sec. 104.140, a copy of the
Alternative Security Program the vessel is using and a letter signed by
the vessel owner or operator, stating which Alternative Security
Program the vessel is using and certifying that the vessel is in full
compliance with that program; or
(4) For foreign vessels, a valid International Ship Security
Certificate that attests to the vessel's compliance with SOLAS Chapter
XI-2 and the ISPS Code, part A (Incorporated by reference, see Sec.
101.115 of this subchapter), and having taken into account the relevant
provisions in the ISPS Code, part B.
(b) Each owner or operator of an unmanned vessel subject to this
part must maintain the documentation described in paragraphs (a)(1),
(2), or (3) of this section. The letter required by each of those
paragraphs must be carried on board the vessel. The plan or program
required by each of those paragraphs must not be carried on board the
vessel, but must be maintained in a secure location. During scheduled
inspections, the plan or program must be made available to the Coast
Guard upon request.
Sec. 104.125 Noncompliance.
When a vessel is not in compliance with the requirements of this
part, the vessel owner or operator must notify the cognizant COTP and
request a waiver to continue operations.
Sec. 104.130 Waivers.
Any vessel owner or operator may apply for a waiver of any
requirement of this part that the owner or operator considers
unnecessary in light of the nature or operating conditions of the
vessel. A request for a waiver must be submitted in writing with
justification to the Commandant (G-MP) at 2100 Second St., SW.,
Washington, DC 20593. The Commandant (G-MP) may require the vessel
owner or operator to provide additional data for determining the
validity of the requested waiver. The Commandant (G-MP) may grant, in
writing, a waiver with or without conditions only if the waiver will
not reduce the overall security of the vessel, its passengers, its
crew, or its cargo, or facilities or ports that the vessel may visit.
Sec. 104.135 Equivalents.
For any measure required by this part, the vessel owner or operator
may
[[Page 39304]]
propose an equivalent as provided in Sec. 101.130 of this subchapter.
Sec. 104.140 Alternative Security Programs.
A vessel owner or operator may use an Alternative Security Program
as approved under Sec. 101.120 of this subchapter if:
(a) The Alternative Security Program is appropriate to that class
of vessel;
(b) The vessel does not engage on international voyages; and
(c) The Alternative Security Program is implemented in its
entirety.
Sec. 104.145 Maritime Security (MARSEC) Directive.
Each vessel owner or operator subject to this part must comply with
any instructions contained in a MARSEC Directive issued under Sec.
101.405 of this subchapter.
Sec. 104.150 Right to appeal.
Any person directly affected by a decision or action taken under
this part, by or on behalf of the Coast Guard, may appeal as described
in Sec. 101.420 of this subchapter.
Subpart B--Vessel Security Requirements
Sec. 104.200 Owner or operator.
(a) Each vessel owner or operator must ensure that the vessel
operates in compliance with the requirements of this part.
(b) For each vessel, the vessel owner or operator must:
(1) Define the security organizational structure for each vessel
and provide all personnel exercising security duties or
responsibilities within that structure with the support needed to
fulfill security obligations;
(2) Designate, in writing, by name or title, a Company Security
Officer (CSO), a Vessel Security Officer (VSO) for each vessel, and
identify how those officers can be contacted at any time;
(3) Ensure personnel receive training, drills, and exercises
enabling them to perform their assigned security duties;
(4) Ensure vessel security records are kept;
(5) Ensure that adequate coordination of security issues takes
place between vessels and facilities; this includes the execution of a
Declaration of Security (DoS);
(6) Ensure coordination of shore leave for vessel personnel or crew
change-out, as well as access through the facility of visitors to the
vessel (including representatives of seafarers' welfare and labor
organizations), with facility operators in advance of a vessel's
arrival;
(7) Ensure security communication is readily available;
(8) Ensure coordination with and implementation of changes in
Maritime Security (MARSEC) Level;
(9) Ensure that security systems and equipment are installed and
maintained;
(10) Ensure that vessel access, including the embarkation of
persons and their effects, are controlled;
(11) Ensure that restricted areas are controlled;
(12) Ensure that cargo and vessel stores and bunkers are handled in
compliance with this part;
(13) Ensure restricted areas, deck areas, and areas surrounding the
vessel are monitored;
(14) Provide the Master, or for vessels on domestic routes only,
the CSO, with the following information:
(i) Parties responsible for appointing vessel personnel, such as
vessel management companies, manning agents, contractor,
concessionaires (for example, retail sales outlets, casinos, etc.);
(ii) Parties responsible for deciding the employment of the vessel,
including time or bareboat charters or any other entity acting in such
capacity; and
(iii) In cases when the vessel is employed under the terms of a
charter party, the contract details of those documents, including time
or voyage charters; and
(15) Give particular consideration to the convenience, comfort, and
personal privacy of vessel personnel and their ability to maintain
their effectiveness over long periods.
Sec. 104.205 Master.
(a) Nothing in this part is intended to permit the Master to be
constrained by the Company, the vessel owner or operator, or any other
person, from taking or executing any decision which, in the
professional judgment of the Master, is necessary to maintain the
safety and security of the vessel. This includes denial of access to
persons--except those identified as duly authorized by the cognizant
government authority--or their effects, and refusal to load cargo,
including containers or other closed cargo transport units.
(b) If, in the professional judgment of the Master, a conflict
between any safety and security requirements applicable to the vessel
arises during its operations, the Master may give precedence to
measures intended to maintain the safety of the vessel, and take such
temporary security measures as seem best under all circumstances. In
such cases:
(1) The Master must, as soon as practicable, inform the nearest
COTP. If the vessel is on a foreign voyage, the Master must promptly
inform the Coast Guard at 1-800-424-8802, direct telephone at 202-267-
2675, fax at 202-267-2165, TDD at 202-267-4477, or E-mail at 1st-
nrcinfo@comdt.uscg.mil and if subject to the jurisdiction of a foreign
government, the relevant maritime authority of that foreign government;
(2) The temporary security measures must, to the highest possible
degree, be commensurate with the prevailing Maritime Security (MARSEC)
Level; and
(3) The owner or operator must ensure that such conflicts are
resolved to the satisfaction of the cognizant COTP, or for vessels on
international voyages, the Commandant (G-MP), and that the possibility
of recurrence is minimized.
Sec. 104.210 Company Security Officer (CSO).
(a) General. (1) Each vessel owner or operator must designate in
writing a CSO.
(2) A vessel owner or operator may designate a single CSO for all
its vessels to which this part applies, or may designate more than one
CSO, in which case the owner or operator must clearly identify the
vessels for which each CSO is responsible.
(3) A CSO may perform other duties within the owner or operator's
organization, provided he or she is able to perform the duties and
responsibilities required of a CSO.
(4) The CSO may delegate duties required by this part, but remains
responsible for the performance of those duties.
(b) Qualifications. (1) The CSO must have general knowledge,
through training or equivalent job experience, in the following:
(i) Security administration and organization of the company's
vessel(s);
(ii) Vessel, facility, and port operations relevant to that
industry;
(iii) Vessel and facility security measures, including the meaning
and the consequential requirements of the different Maritime Security
(MARSEC) Levels;
(iv) Emergency preparedness and response and contingency planning;
(v) Security equipment and systems and their operational
limitations;
(vi) Methods of conducting audits, inspection and control and
monitoring techniques; and
(vii) Techniques for security training and education, including
security measures and procedures.
(2) In addition to knowledge and training in paragraph (b)(1) of
this section, the CSO must have general knowledge through training or
equivalent job experience in the following, as appropriate:
(i) Relevant international conventions, codes, and recommendations;
[[Page 39305]]
(ii) Relevant government legislation and regulations;
(iii) Responsibilities and functions of other security
organizations;
(iv) Methodology of Vessel Security Assessment;
(v) Methods of vessel security surveys and inspections;
(vi) Instruction techniques for security training and education,
including security measures and procedures;
(vii) Handling sensitive security information and security related
communications;
(viii) Knowledge of current security threats and patterns;
(ix) Recognition and detection of dangerous substances and devices;
(x) Recognition of characteristics and behavioral patterns of
persons who are likely to threaten security;
(xi) Techniques used to circumvent security measures;
(xii) Methods of physical screening and non-intrusive inspections;
(xiii) Security drills and exercises, including drills and
exercises with facilities; and
(xiv) Assessment of security drills and exercises.
(c) Responsibilities. In addition to those responsibilities and
duties specified elsewhere in this part, the CSO must, for each vessel
for which he or she has been designated:
(1) Keep the vessel apprised of potential threats or other
information relevant to its security;
(2) Ensure a Vessel Security Assessment (VSA) is carried out;
(3) Ensure a Vessel Security Plan (VSP) is developed, approved, and
maintained;
(4) Ensure the VSP is modified when necessary;
(5) Ensure vessel security activities are audited;
(6) Arrange for Coast Guard inspections under 46 CFR part 2;
(7) Ensure the timely or prompt correction of problems identified
by audits or inspections;
(8) Enhance security awareness and vigilance within the owner's or
operator's organization;
(9) Ensure relevant personnel receive adequate security training;
(10) Ensure communication and cooperation between the vessel and
the port and facilities with which the vessel interfaces;
(11) Ensure consistency between security requirements and safety
requirements;
(12) Ensure that when sister-vessel or fleet security plans are
used, the plan for each vessel reflects the vessel-specific information
accurately;
(13) Ensure compliance with an Alternative Security Program or
equivalents approved under this subchapter, if appropriate; and
(14) Ensure security measures give particular consideration to the
convenience, comfort, and personal privacy of vessel personnel and
their ability to maintain their effectiveness over long periods.
Sec. 104.215 Vessel Security Officer (VSO).
(a) General. (1) A VSO may perform other duties within the owner's
or operator's organization, provided he or she is able to perform the
duties and responsibilities required of the VSO for each such vessel.
(2) For manned vessels, the VSO must be a member of the crew.
(3) For unmanned vessels, the same person may serve as the VSO for
more one than one unmanned vessel. If a person serves as the VSO for
more than one unmanned vessel, the name of each unmanned vessel for
which he or she is the VSO must be listed in the Vessel Security Plan
(VSP).
(4) The VSO of any unmanned barge and the VSO of any towing vessel
interfacing with the barge must coordinate and ensure the
implementation of security measures applicable to both vessels during
the period of their interface.
(5) The VSO may assign security duties to other vessel personnel;
however, the VSO remains responsible for these duties.
(b) Qualifications. The VSO must have general knowledge, through
training or equivalent job experience, in the following:
(1) Those items listed in Sec. 104.210 (b)(1) and (b)(2) of this
part;
(2) Vessel layout;
(3) The VSP and related procedures, including scenario-based
response training;
(4) Crowd management and control techniques;
(5) Operations of security equipment and systems; and
(6) Testing and calibration of security equipment and systems, and
their maintenance while at sea.
(c) Responsibilities. In addition to those responsibilities and
duties specified elsewhere in this part, the VSO must, for each vessel
for which he or she has been designated:
(1) Regularly inspect the vessel to ensure that security measures
are maintained;
(2) Ensure maintenance and supervision of the implementation of the
VSP, and any amendments to the VSP;
(3) Ensure the coordination and handling of cargo and vessel stores
and bunkers in compliance with this part;
(4) Propose modifications to the VSP to the Company Security
Officer (CSO);
(5) Ensure that any problems identified during audits or
inspections are reported to the CSO, and promptly implement any
corrective actions;
(6) Ensure security awareness and vigilance on board the vessel;
(7) Ensure adequate security training for vessel personnel;
(8) Ensure the reporting and recording of all security incidents;
(9) Ensure the coordinated implementation of the VSP with the CSO
and the relevant Facility Security Officer, when applicable;
(10) Ensure security equipment is properly operated, tested,
calibrated and maintained; and
(11) Ensure consistency between security requirements and the
proper treatment of vessel personnel affected by those requirements.
Sec. 104.220 Company or vessel personnel with security duties.
Company and vessel personnel responsible for security duties must
have knowledge, through training or equivalent job experience, in the
following, as appropriate:
(a) Knowledge of current security threats and patterns;
(b) Recognition and detection of dangerous substances and devices;
(c) Recognition of characteristics and behavioral patterns of
persons who are likely to threaten security;
(d) Techniques used to circumvent security measures;
(e) Crowd management and control techniques;
(f) Security related communications;
(g) Knowledge of emergency procedures and contingency plans;
(h) Operation of security equipment and systems;
(i) Testing and calibration of security equipment and systems, and
their maintenance while at sea;
(j) Inspection, control, and monitoring techniques;
(k) Relevant provisions of the Vessel Security Plan (VSP);
(l) Methods of physical screening of persons, personal effects,
baggage, cargo, and vessel stores; and
(m) The meaning and the consequential requirements of the different
Maritime Security (MARSEC) Levels.
Sec. 104.225 Security training for all other vessel personnel.
All other vessel personnel, including contractors, whether part-
time, full-time, temporary, or permanent, must have knowledge of,
through training or equivalent job experience in the following:
[[Page 39306]]
(a) Relevant provisions of the Vessel Security Plan (VSP);
(b) The meaning and the consequential requirements of the different
Maritime Security (MARSEC) Levels, including emergency procedures and
contingency plans;
(c) Recognition and detection of dangerous substances and devices;
(d) Recognition of characteristics and behavioral patterns of
persons who are likely to threaten security; and
(e) Techniques used to circumvent security measures.
Sec. 104.230 Drill and exercise requirements.
(a) General. Drills and exercises must test the proficiency of
vessel personnel in assigned security duties at all Maritime Security
(MARSEC) Levels and the effective implementation of the Vessel Security
Plan (VSP). They must enable the Vessel Security Officer (VSO) to
identify any related security deficiencies that need to be addressed.
(b) Drills. (1) The VSO must ensure that at least one security
drill is conducted at least every 3 months, except when a vessel is out
of service due to repairs or seasonal suspension of operation provided
that in such cases a drill must be conducted within one week of the
vessel's reactivation. Security drills may be held in conjunction with
non-security drills where appropriate.
(2) Drills must test individual elements of the VSP, including
response to security threats and incidents. Drills should take into
account the types of operations of the vessel, vessel personnel
changes, and other relevant circumstances. Examples of drills include
unauthorized entry to a restricted area, response to alarms, and
notification of law enforcement authorities.
(3) If the vessel is moored at a facility on the date the facility
has planned to conduct any drills, the vessel may, but is not required
to, participate in the facility's scheduled drill.
(4) Drills must be conducted within one week whenever the
percentage of vessel personnel with no prior participation in a vessel
security drill on that vessel exceeds 25 percent.
(c) Exercises. (1) Exercises must be conducted at least once each
calendar year, with no more than 18 months between exercises.
(2) Exercises may be:
(i) Full scale or live;
(ii) Tabletop simulation or seminar;
(iii) Combined with other appropriate exercises; or
(iv) A combination of the elements in paragraphs (c)(2)(i) through
(iii) of this section.
(3) Exercises may be vessel-specific or part of a cooperative
exercise program to exercise applicable facility and vessel security
plans or comprehensive port exercises.
(4) Each exercise must test communication and notification
procedures, and elements of coordination, resource availability, and
response.
(5) Exercises are a full test of the security program and must
include the substantial and active participation of relevant company
and vessel security personnel, and may include facility security
personnel and government authorities depending on the scope and the
nature of the exercises.
Sec. 104.235 Vessel recordkeeping requirements.
(a) Unless otherwise specified in this section, the Vessel Security
Officer must keep records of the activities as set out in paragraph (b)
of this section for at least 2 years and make them available to the
Coast Guard upon request.
(b) Records required by this section may be kept in electronic
format. If kept in an electronic format, they must be protected against
unauthorized deletion, destruction, or amendment. The following records
must be kept:
(1) Training. For each security training session, the date of each
session, duration of session, a description of the training, and a list
of attendees;
(2) Drills and exercises. For each drill or exercise, the date
held, description of drill or exercise, list of participants; and any
best practices or lessons learned which may improve the Vessel Security
Plan (VSP);
(3) Incidents and breaches of security. Date and time of
occurrence, location within the port, location within the vessel,
description of incident or breaches, to whom it was reported, and
description of the response;
(4) Changes in Maritime Security (MARSEC) Levels. Date and time of
notification received, and time of compliance with additional
requirements;
(5) Maintenance, calibration, and testing of security equipment.
For each occurrence of maintenance, calibration, and testing, the date
and time, and the specific security equipment involved;
(6) Security threats. Date and time of occurrence, how the threat
was communicated, who received or identified the threat, description of
threat, to whom it was reported, and description of the response;
(7) Declaration of Security (DoS). Manned vessels must keep on
board a copy of the last 10 DoSs and a copy of each continuing DoS for
at least 90 days after the end of its effective period; and
(8) Annual audit of the VSP. For each annual audit, a letter
certified by the VSO stating the date the audit was completed.
(c) Any records required by this part must be protected from
unauthorized access or disclosure.
Sec. 104.240 Maritime Security (MARSEC) Level coordination and
implementation.
(a) The vessel owner or operator must ensure that, prior to
entering a port, all measures are taken that are specified in the
Vessel Security Plan (VSP) for compliance with the MARSEC Level in
effect for the port.
(b) When notified of an increase in the MARSEC Level, the vessel
owner or operator must ensure:
(1) If a higher MARSEC Level is set for the port in which the
vessel is located or is about to enter, the vessel complies, without
undue delay, with all measures specified in the VSP for compliance with
that higher MARSEC Level;
(2) The COTP is notified as required by Sec. 101.300(c) when
compliance with the higher MARSEC Level has been implemented; and
(3) For vessels in port, that compliance with the higher MARSEC
Level has taken place within 12 hours of the notification.
(c) For MARSEC Levels 2 and 3, the Vessel Security Officer must
brief all vessel personnel of identified threats, emphasize reporting
procedures, and stress the need for increased vigilance.
(d) An owner or operator whose vessel is not in compliance with the
requirements of this section must inform the COTP and obtain approval
prior to entering any port, prior to interfacing with another vessel or
with a facility or to continuing operations.
(e) For MARSEC Level 3, in addition to the requirements in this
part, a vessel owner or operator may be required to implement
additional measures, pursuant to 33 CFR part 6, 160 or 165, as
appropriate, which may include but are not limited to:
(1) Arrangements to ensure that the vessel can be towed or moved if
deemed necessary by the Coast Guard;
(2) Use of waterborne security patrol;
(3) Use of armed security personnel to control access to the vessel
and to deter, to the maximum extent practical, a TSI; or
(4) Screening the vessel for the presence of dangerous substances
and devices underwater or other threats.
Sec. 104.245 Communications.
(a) The Vessel Security Officer must have a means to effectively
notify vessel
[[Page 39307]]
personnel of changes in security conditions on board the vessel.
(b) Communications systems and procedures must allow effective and
continuous communication between the vessel security personnel,
facilities interfacing with the vessel, vessels interfacing with the
vessel, and national or local authorities with security
responsibilities.
(c) Communication systems and procedures must enable vessel
personnel to notify, in a timely manner, shore side authorities or
other vessels of a security threat or incident on board.
Sec. 104.250 Procedures for interfacing with facilities and other
vessels.
(a) The vessel owner or operator must ensure that there are
measures for interfacing with facilities and other vessels at all
MARSEC Levels.
(b) For each U.S. flag vessel that calls on foreign ports or
facilities, the vessel owner or operator must ensure procedures for
interfacing with those ports and facilities are established.
Sec. 104.255 Declaration of Security (DoS).
(a) Each vessel owner or operator must ensure procedures are
established for requesting a DoS and for handling DoS requests from a
facility or other vessel.
(b) At MARSEC Level 1, the Master or Vessel Security Officer (VSO),
or their designated representative, of any cruise ship or manned vessel
carrying Certain Dangerous Cargoes, in bulk, must complete and sign a
DoS with the VSO or Facility Security Officer (FSO), or their
designated representative, of any vessel or facility with which it
interfaces.
(1) For a vessel-to-facility interface, prior to arrival of a
vessel to a facility, the FSO and Master, VSO, or their designated
representatives must coordinate security needs and procedures, and
agree upon the contents of the DoS for the period of time the vessel is
at the facility. Upon a vessel's arrival to a facility and prior to any
passenger embarkation or disembarkation or cargo transfer operation,
the FSO or Master, VSO, or designated representatives must sign the
written DoS.
(2) For a vessel engaging in a vessel-to-vessel interface, prior to
the interface, the respective Masters, VSOs, or their designated
representatives must coordinate security needs and procedures, and
agree upon the contents of the DoS for the period of time the vessel is
at the facility. Upon the vessel-to-vessel interface and prior to any
passenger embarkation or disembarkation or cargo transfer operation,
the respective Masters, VSOs, or designated representatives must sign
the written DoS.
(c) At MARSEC Levels 2 and 3, the Master, VSO, or designated
representative of any vessel required to comply with this part must
sign and implement a DoS prior to any vessel-to-vessel interface.
(d) At MARSEC Levels 2 and 3, the Master, VSO, or designated
representative of any vessel required to comply with this part must
sign and implement a DoS with the FSO of any facility on which it calls
prior to any cargo transfer operation or passenger embarkation or
disembarkation.
(e) At MARSEC Levels 1 and 2, VSOs of vessels that frequently
interface with the same facility may implement a continuing DoS for
multiple visits, provided that:
(1) The DoS is valid for the specific MARSEC Level;
(2) The effective period at MARSEC Level 1 does not exceed 90 days;
and
(3) The effective period at MARSEC Level 2 does not exceed 30 days.
(f) When the MARSEC Level increases beyond the level contained in
the DoS, the continuing DoS becomes void and a new DoS must be signed
and implemented in accordance with this section.
(g) The COTP may require at any time, at any MARSEC Level, any
manned vessel subject to this part to implement a DoS with the VSO or
FSO prior to any vessel-to-vessel or vessel-to-facility interface when
he or she deems it necessary.
Sec. 104.260 Security systems and equipment maintenance.
(a) Security systems and equipment must be in good working order
and inspected, tested, calibrated and maintained according to the
manufacturer's recommendation.
(b) The results of testing completed under paragraph (a) of this
section shall be recorded in accordance with Sec. 104.235. Any
deficiencies shall be promptly corrected.
(c) The Vessel Security Plan (VSP) must include procedures for
identifying and responding to security system and equipment failures or
malfunctions.
Sec. 104.265 Security measures for access control.
(a) General. The vessel owner or operator must ensure the
implementation of security measures to:
(1) Deter the unauthorized introduction of dangerous substances and
devices, including any device intended to damage or destroy persons,
vessels, facilities, or ports;
(2) Secure dangerous substances and devices that are authorized by
the owner or operator to be on board; and
(3) Control access to the vessel.
(b) The vessel owner or operator must ensure that:
(1) The locations providing means of access to the vessel where
access restrictions or prohibitions are applied for each Maritime
Security (MARSEC) Level to prevent unauthorized access. ``Means of
access'' include, but are not limited, to all:
(i) Access ladders;
(ii) Access gangways;
(iii) Access ramps;
(iv) Access doors, side scuttles, windows, and ports;
(v) Mooring lines and anchor chains; and
(vi) Cranes and hoisting gear;
(2) The identification of the types of restriction or prohibition
to be applied and the means of enforcing them; and
(3) The means of identification required to allow individuals to
access the vessel and remain on the vessel without challenge are
established.
(c) The vessel owner or operator must ensure that an identification
system is established for checking the identification of vessel
personnel or other persons seeking access to the vessel that:
(1) Allows identification of authorized and unauthorized persons at
any MARSEC Level;
(2) Is coordinated, when practicable, with identification systems
at facilities used by the vessel;
(3) Is updated regularly;
(4) Uses disciplinary measures to discourage abuse;
(5) Allows temporary or continuing access for vessel personnel and
visitors, including seafarer's chaplains and union representatives,
through the use of a badge or other system to verify their identity;
and
(6) Allow certain long-term, frequent vendor representatives to be
treated more as employees than as visitors.
(d) The vessel owner or operator must establish in the approved
Vessel Security Plan (VSP) the frequency of application of any security
measures for access control, particularly if these security measures
are applied on a random or occasional basis.
(e) MARSEC Level 1. The vessel owner or operator must ensure
security measures in this paragraph are implemented to:
(1) Screen persons, baggage (including carry-on items), personal
effects, and vehicles for dangerous substances and devices at the rate
specified in the approved Vessels Security Plan (VSP);
[[Page 39308]]
(2) Conspicuously post signs that describe security measures
currently in effect and clearly state that:
(i) Boarding the vessel is deemed valid consent to screening or
inspection; and
(ii) Failure to consent or submit to screening or inspection will
result in denial or revocation of authorization to board;
(3) Check the identification of any person seeking to board the
vessel, including vessel passengers and crew, facility employees,
vendors, personnel duly authorized by the cognizant government
authorities, and visitors. This check includes confirming the reason
for boarding by examining at least one of the following:
(i) Joining instructions;
(ii) Passenger tickets;
(iii) Boarding passes;
(iv) Work orders, pilot orders, or surveyor orders;
(v) Government identification; or
(vi) Visitor badges issued in accordance with an identification
system required in paragraph (c) of this section;
(4) Deny or revoke a person's authorization to be on board if the
person is unable or unwilling, upon the request of vessel personnel, to
establish his or her identity or to account for his or her presence on
board. Any such incident must be reported in compliance with this part;
(5) Deter unauthorized access to the vessel;
(6) Identify access points that must be secured or attended to
deter unauthorized access;
(7) Lock or otherwise prevent access to unattended spaces that
adjoin areas to which passengers and visitors have access;
(8) Provide a designated secure area on board or in liaison with a
facility, for conducting inspections and screening of people, baggage
(including carry-on items), personal effects, vehicles and the
vehicle's contents;
(9) Ensure vessel personnel are not required to engage in or be
subjected to screening, of the person or of personal effects, by other
vessel personnel, unless security clearly requires it. Any such
screening must be conducted in a way that takes into full account
individual human rights and preserves the individual's basic human
dignity;
(10) Ensure the screening of all unaccompanied baggage;
(11) Ensure checked persons and their personal effects are
segregated from unchecked persons and their personal effects;
(12) Ensure embarking passengers are segregated from disembarking
passengers;
(13) Ensure, in liaison with the facility, a defined percentage of
vehicles to be loaded aboard passenger vessels are screened prior to
loading at the rate specified in the approved VSP;
(14) Ensure, in liaison with the facility, all unaccompanied
vehicles to be loaded on passenger vessels are screened prior to
loading; and
(15) Respond to the presence of unauthorized persons on board,
including repelling unauthorized boarders.
(f) MARSEC Level 2. In addition to the security measures required
for MARSEC Level 1 in this section, at MARSEC Level 2, the vessel owner
or operator must also ensure the implementation of additional security
measures, as specified for MARSEC Level 2 in the approved VSP. These
additional security measures may include:
(1) Increasing the frequency and detail of screening of people,
personal effects, and vehicles being embarked or loaded onto the vessel
as specified for MARSEC Level 2 in the approved VSP;
(2) X-ray screening of all unaccompanied baggage;
(3) Assigning additional personnel to patrol deck areas during
periods of reduced vessel operations to deter unauthorized access;
(4) Limiting the number of access points to the vessel by closing
and securing some access points;
(5) Denying access to visitors who do not have a verified
destination;
(6) Deterring waterside access to the vessel, which may include, in
liaison with the facility, providing boat patrols; and
(7) Establishing a restricted area on the shoreside of the vessel,
in close cooperation with the facility.
(g) MARSEC Level 3. In addition to the security measures required
for MARSEC Level 1 and MARSEC Level 2, the vessel owner or operator
must ensure the implementation of additional security measures, as
specified for MARSEC Level 3 in the approved VSP. The additional
security measures may include:
(1) Screening all persons, baggage, and personal effects for
dangerous substances and devices;
(2) Performing one or more of the following on unaccompanied
baggage:
(i) Screen unaccompanied baggage more extensively, for example, x-
raying from two or more angles;
(ii) Prepare to restrict or suspend handling unaccompanied baggage;
or
(iii) Refuse to accept unaccompanied baggage on board;
(3) Being prepared to cooperate with responders and facilities;
(4) Limiting access to the vessel to a single, controlled access
point;
(5) Granting access to only those responding to the security
incident or threat thereof;
(6) Suspending embarkation and/or disembarkation of personnel;
(7) Suspending cargo operations;
(8) Evacuating the vessel;
(9) Moving the vessel; and
(10) Preparing for a full or partial search of the vessel.
Sec. 104.270 Security measures for restricted areas.
(a) General. The vessel owner or operator must ensure the
designation of restricted areas in order to:
(1) Prevent or deter unauthorized access;
(2) Protect persons authorized to be on board;
(3) Protect the vessel;
(4) Protect sensitive security areas within the vessel;
(5) Protect security and surveillance equipment and systems; and
(6) Protect cargo and vessel stores from tampering.
(b) Designation of Restricted Areas. The vessel owner or operator
must ensure restricted areas are designated on board the vessel, as
specified in the approved plan. Restricted areas must include, as
appropriate:
(1) Navigation bridge, machinery spaces and other control stations;
(2) Spaces containing security and surveillance equipment and
systems and their controls and lighting system controls;
(3) Ventilation and air-conditioning systems and other similar
spaces;
(4) Spaces with access to potable water tanks, pumps, or manifolds;
(5) Spaces containing dangerous goods or hazardous substances;
(6) Spaces containing cargo pumps and their controls;
(7) Cargo spaces and spaces containing vessel stores;
(8) Crew accommodations; and
(9) Any other spaces or areas vital to the security of the vessel.
(c) The vessel owner or operator must ensure that security measures
and policies are established to:
(1) Identify which vessel personnel are authorized to have access;
(2) Determine which persons other than vessel personnel are
authorized to have access;
(3) Determine the conditions under which that access may take
place;
(4) Define the extent of any restricted area;
(5) Define the times when access restrictions apply; and
(6) Clearly mark all restricted areas and indicate that access to
the area is restricted and that unauthorized
[[Page 39309]]
presence within the area constitutes a breach of security.
(d) Maritime Security (MARSEC) Level 1. The vessel owner or
operator must ensure the implementation of security measures to prevent
unauthorized access or activities within the area. These security
measures may include:
(1) Locking or securing access points;
(2) Monitoring and using surveillance equipment;
(3) Using guards or patrols; and
(4) Using automatic intrusion detection devices, which if used must
activate an audible and/or visual alarm at a location that is
continuously attended or monitored, to alert vessel personnel to
unauthorized access.
(e) MARSEC Level 2. In addition to the security measures required
for MARSEC Level 1 in this section, at MARSEC Level 2, the vessel owner
or operator must also ensure the implementation of additional security
measures, as specified for MARSEC Level 2 in the approved VSP. These
additional security measures may include:
(1) Increasing the frequency and intensity of monitoring and access
controls on existing restricted access areas;
(2) Restricting access to areas adjacent to access points;
(3) Providing continuous monitoring of each area, using
surveillance equipment; and
(4) Dedicating additional personnel to guard or patrol each area.
(f) MARSEC Level 3. In addition to the security measures required
for MARSEC Level 1 and MARSEC Level 2, at MARSEC Level 3, the vessel
owner or operator must ensure the implementation of additional security
measures, as specified for MARSEC Level 3 in the approved VSP. These
additional security measures may include:
(1) Restricting access to additional areas; and
(2) Searching restricted areas as part of a security sweep of the
vessel.
Sec. 104.275 Security measures for handling cargo.
(a) General. The vessel owner or operator must ensure that security
measures relating to cargo handling, some of which may have to be
applied in liaison with the facility, are specified in order to:
(1) Deter tampering;
(2) Prevent cargo that is not meant for carriage from being
accepted and stored on board the vessel;
(3) Identify cargo that is approved for loading onto the vessel;
(4) Include inventory control procedures at access points to the
vessel;
(5) Coordinate security measures with the shipper or other
responsible party in accordance with an established agreement and
procedures; and
(6) Be able to check cargo for dangerous substances and devices at
the rate specified in the approved Vessel Security Plan. Means to check
cargo include:
(i) Visual examination;
(ii) Physical examination;
(iii) Detection devices such as scanners; or
(iv) Canines.
(b) Maritime Security (MARSEC) Level 1. At MARSEC Level 1, the
vessel owner or operator must ensure the implementation of measures to:
(1) Routinely check cargo and cargo spaces prior to and during
cargo handling;
(2) Check that cargo to be loaded matches the cargo documentation,
or that cargo markings or container numbers match the information
provided with shipping documents;
(3) Ensure, in liaison with the facility, that vehicles to be
loaded on board car carriers, RO-RO, and passenger ships are subjected
to screening prior to loading, in accordance with the frequency
required in the VSP; and
(4) Check, in liaison with the facility, seals or other methods
used to prevent tampering.
(c) MARSEC Level 2. In addition to the security measures required
for MARSEC Level 1 in this section, at MARSEC Level 2, the vessel owner
or operator must also ensure the implementation of additional security
measures, as specified for MARSEC Level 2 in the approved Vessel
Security Plan (VSP). These additional security measures may include:
(1) Increasing the frequency and detail of checking cargo and cargo
spaces;
(2) Intensifying checks to ensure that only the intended cargo,
container, or other cargo transport units are loaded;
(3) Intensifying screening of vehicles to be loaded on car-
carriers, RO-RO, and passenger vessels;
(4) In liaison with the facility, increasing frequency and detail
in checking seals or other methods used to prevent tampering;
(5) Increasing the frequency of the use of scanning/detection
equipment, mechanical devices, or canines; or
(6) Coordinating enhanced security measures with the shipper or
other responsible party in accordance with an established agreement and
procedures.
(d) MARSEC Level 3. In addition to the security measures for MARSEC
Level 1 and MARSEC Level 2, at MARSEC Level 3, the vessel owner or
operator must ensure the implementation of additional security
measures, as specified for MARSEC Level 3 in the approved VSP. These
additional security measures may include:
(1) Suspending loading or unloading of cargo;
(2) Being prepared to cooperate with responders and facilities; or
(3) Verifying the inventory and location of any hazardous materials
carried on board.
Sec. 104.280 Security measures for delivery of vessel stores and
bunkers.
(a) General. The vessel owner or operator must ensure that security
measures relating to the delivery of vessel stores and bunkers are
implemented to:
(1) Check vessel stores for package integrity;
(2) Prevent vessel stores from being accepted without inspection;
(3) Deter tampering; and
(4) Prevent vessel stores and bunkers from being accepted unless
ordered. For vessels that routinely use a facility, a vessel owner or
operator may establish and implement standing arrangements between the
vessel, its suppliers, and a facility regarding notification and the
timing of deliveries and their documentation.
(b) Maritime Security (MARSEC) Level 1. At MARSEC Level 1, the
vessel owner or operator must ensure the implementation of measures to:
(1) Check vessel stores before being accepted;
(2) Check that vessel stores and bunkers match the order prior to
being brought on board or being bunkered; and
(3) Ensure that vessel stores are controlled or immediately and
securely stowed following delivery.
(c) MARSEC Level 2. In addition to the security measures required
for MARSEC Level 1 in this section, at MARSEC Level 2, the vessel owner
or operator must also ensure the implementation of additional security
measures, as specified for MARSEC Level 2 in the approved Vessel
Security Plan (VSP). These additional security measures may include:
(1) Intensifying inspection of the vessel stores during delivery;
or
(2) Checking vessel stores prior to receiving them on board.
(d) MARSEC Level 3. In addition to the security measures for MARSEC
Level 1 and MARSEC Level 2, at MARSEC Level 3, the vessel owner or
operator must ensure the implementation of additional security
measures, as specified for MARSEC Level 3 in the approved VSP. These
[[Page 39310]]
additional security measures may include:
(1) Checking all vessel stores more extensively;
(2) Restricting or suspending delivery of vessel stores and
bunkers; or
(3) Refusing to accept vessel stores on board.
Sec. 104.285 Security measures for monitoring.
(a) General. (1) The vessel owner or operator must ensure the
implementation of security measures and have the capability to
continuously monitor, through a combination of lighting, watchkeepers,
security guards, deck watches, waterborne patrols and automatic
intrusion-detection devices, or surveillance equipment, as specified in
their approved Vessel Security Plan (VSP), the--
(i) Vessel;
(ii) Restricted areas on board the vessel; and
(iii) Area surrounding the vessel.
(2) The following must be considered when establishing the
appropriate level and location of lighting:
(i) Vessel personnel should be able to detect activities on and
around the vessel, on both the shore side and the waterside;
(ii) Coverage should facilitate personnel identification at access
points;
(iii) Coverage may be provided through coordination with the port
or facility; and
(iv) Lighting effects, such as glare, and its impact on safety,
navigation, and other security activities.
(b) Maritime Security (MARSEC) Level 1. At MARSEC Level 1, the
vessel owner or operator must ensure the implementation of security
measures, which may be done in coordination with a facility, to:
(1) Monitor the vessel, particularly vessel access points and
restricted areas;
(2) Be able to conduct emergency searches of the vessel;
(3) Ensure that equipment or system failures or malfunctions are
identified and corrected;
(4) Ensure that any automatic intrusion detection device sets off
an audible or visual alarm, or both, at a location that is continually
attended or monitored;
(5) Light deck and vessel access points during the period between
sunset and sunrise and periods of limited visibility sufficiently to
allow visual identification of persons seeking access to the vessel;
and
(6) Use maximum available lighting while underway, during the
period between sunset and sunrise, consistent with safety and
international regulations.
(c) MARSEC Level 2. In addition to the security measures required
for MARSEC Level 1 in this section, at MARSEC Level 2, the vessel owner
or operator must also ensure the implementation of additional security
measures, as specified for MARSEC Level 2 in the approved VSP. These
additional security measures may include:
(1) Increasing the frequency and detail of security patrols;
(2) Increasing the coverage and intensity of lighting, alone or in
coordination with the facility;
(3) Using or increasing the use of security and surveillance
equipment;
(4) Assigning additional personnel as security lookouts;
(5) Coordinating with boat patrols, when provided; or
(6) Coordinating with shoreside foot or vehicle patrols, when
provided.
(d) MARSEC Level 3. In addition to the security measures for MARSEC
Level 1 and MARSEC Level 2, at MARSEC Level 3, the vessel owner or
operator must ensure the implementation of additional security
measures, as specified for MARSEC Level 3 in the approved VSP. These
additional security measures may include:
(1) Cooperating with responders and facilities;
(2) Switching on all lights;
(3) Illuminating the vicinity of the vessel;
(4) Switching on all surveillance equipment capable of recording
activities on, or in the vicinity of, the vessel;
(5) Maximizing the length of time such surveillance equipment can
continue to record;
(6) Preparing for underwater inspection of the hull; and
(7) Initiating measures, including the slow revolution of the
vessel's propellers, if practicable, to deter underwater access to the
hull of the vessel.
Sec. 104.290 Security incident procedures.
For each Maritime Security (MARSEC) Level, the vessel owner or
operator must ensure the Vessel Security Officer (VSO) and vessel
security personnel are able to:
(a) Respond to security threats or breaches of security and
maintain critical vessel and vessel-to-facility interface operations,
to include:
(1) Prohibiting entry into affected area;
(2) Denying access to the vessel, except to those responding to the
emergency;
(3) Implementing MARSEC Level 3 security measures throughout the
vessel;
(4) Stopping cargo-handling operations; and
(5) Notifying shoreside authorities or other vessels of the
emergency;
(b) Evacuating the vessel in case of security threats or breaches
of security;
(c) Reporting security incidents as required in Sec. 101.305;
(d) Briefing all vessel personnel on possible threats and the need
for vigilance, soliciting their assistance in reporting suspicious
persons, objects, or activities; and
(e) Securing non-critical operations in order to focus response on
critical operations.
Sec. 104.292 Additional requirements--passenger vessels and ferries.
(a) At all Maritime Security (MARSEC) Levels, the vessel owner or
operator must ensure security sweeps are performed, prior to getting
underway, after any period the vessel was unattended.
(b) As an alternative to the identification checks and passenger
screening requirements in Sec. 104.265 (e)(1), (e)(3), and (e)(8), the
owner or operator of a passenger vessel or ferry may ensure security
measures are implemented that include:
(1) Searching selected areas prior to embarking passengers and
prior to sailing; and
(2) Implementing one or more of the following:
(i) Performing routine security patrols;
(ii) Providing additional closed-circuit television to monitor
passenger areas; or
(iii) Securing all non-passenger areas.
(c) Passenger vessels certificated to carry more than 2000
passengers, working in coordination with the terminal, may be subject
to additional vehicle screening requirements in accordance with a
MARSEC Directive or other orders issued by the Coast Guard.
(d) At MARSEC Level 2, a vessel owner or operator must ensure, in
addition to MARSEC Level 1 measures, the implementation of the
following:
(1) Search selected areas prior to embarking passengers and prior
to sailing;
(2) Passenger vessels certificated to carry less than 2000
passengers, working in coordination with the terminal, may be subject
to additional vehicle screening requirements in accordance with a
MARSEC Directive or other orders issued by the Coast Guard; and
(3) As an alternative to the identification and screening
requirements in Sec. 104.265(e)(3), intensify patrols, security sweeps
and
[[Page 39311]]
monitoring identified in paragraph (b) of this section.
(e) At MARSEC Level 3, a vessel owner or operator may, in addition
to MARSEC Levels 1 and 2 measures, as an alternative to the
identification checks and passenger screening requirements in Sec.
104.265(e)(3), ensure that random armed security patrols are conducted,
which need not consist of vessel personnel.
Sec. 104.295 Additional requirements--cruise ships.
(a) At all MARSEC Levels, the owner or operator of a cruise ship
must ensure the following:
(1) Screen all persons, baggage, and personal effects for dangerous
substances and devices;
(2) Check the identification of all persons seeking to board the
vessel; this check includes confirming the reason for boarding by
examining joining instructions, passenger tickets, boarding passes,
government identification or visitor badges, or work orders;
(3) Perform security patrols; and
(4) Search selected areas prior to embarking passengers and prior
to sailing.
(b) At MARSEC Level 3, the owner or operator of a cruise ship must
ensure that security briefs to passengers about the specific threat are
provided.
Sec. 104.297 Additional requirements--vessels on international
voyages.
(a) An owner or operator of a U.S. flag vessel, which is subject to
the International Convention for Safety of Life at Sea, 1974, (SOLAS),
must be in compliance with the applicable requirements of SOLAS Chapter
XI-1, SOLAS Chapter XI-2 and the ISPS Code, part A (Incorporated by
reference, see Sec. 101.115 of this subchapter).
(b) Owners or operators of U.S. flag vessels that are required to
comply with SOLAS, must ensure an International Ship Security
Certificate (ISSC) as provided in 46 CFR Sec. 2.01-25 is obtained for
the vessel. This certificate must be issued by the Coast Guard.
(c) Owners or operators of vessels that require an ISSC in
paragraph (b) of this section must request an inspection in writing, at
least 30 days prior to the desired inspection date to the Officer in
Charge, Marine Inspection for the Marine Inspection Office or Marine
Safety Office of the port where the vessel will be inspected to verify
compliance with this part and applicable SOLAS requirements. The
inspection must be completed and the initial ISSC must be issued prior
to July 1, 2004.
Subpart C--Vessel Security Assessment (VSA)
Sec. 104.300 General.
(a) The Vessel Security Assessment (VSA) is a written document that
is based on the collection of background information and the completion
and analysis of an on-scene survey.
(b) A single VSA may be performed and applied to more than one
vessel to the extent that they share physical characteristics and
operations.
(c) Third parties may be used in any aspect of the VSA if they have
the appropriate skills and if the Company Security Officer (CSO)
reviews and accepts their work.
(d) Those involved in a VSA should be able to draw upon expert
assistance in the following areas:
(1) Knowledge of current security threats and patterns;
(2) Recognition and detection of dangerous substances and devices;
(3) Recognition of characteristics and behavioral patterns of
persons who are likely to threaten security;
(4) Techniques used to circumvent security measures;
(5) Methods used to cause a security incident;
(6) Effects of dangerous substances and devices on vessel
structures and equipment;
(7) Vessel security requirements;
(8) Vessel-to-vessel and vessel-to-facility interface business
practices;
(9) Contingency planning, emergency preparedness and response;
(10) Physical security requirements;
(11) Radio and telecommunications systems, including computer
systems and networks;
(12) Marine engineering; and
(13) Vessel and port operations.
Sec. 104.305 Vessel Security Assessment (VSA) requirements.
(a) Background. The vessel owner or operator must ensure that the
following background information is provided to the person or persons
who will conduct the on-scene survey and assessment:
(1) General layout of the vessel, including the location of:
(i) Each actual or potential point of access to the vessel and its
function;
(ii) Spaces that should have restricted access;
(iii) Essential maintenance equipment;
(iv) Cargo spaces and storage;
(v) Storage of unaccompanied baggage; and
(vi) Vessel stores;
(2) Threat assessments, including the purpose and methodology of
the assessment, for the area or areas in which the vessel operates or
at which passengers embark or disembark;
(3) The previous VSA, if any;
(4) Emergency and stand-by equipment available to maintain
essential services;
(5) Number of vessel personnel and any existing security duties to
which they are assigned;
(6) Existing personnel training requirement practices of the
vessel;
(7) Existing security and safety equipment for the protection of
personnel, visitors, passengers, and vessels personnel;
(8) Escape and evacuation routes and assembly stations that have to
be maintained to ensure the orderly and safe emergency evacuation of
the vessel;
(9) Existing agreements with private security companies providing
waterside or vessel security services; and
(10) Existing security measures and procedures, including:
(i) Inspection and control procedures;
(ii) Identification systems;
(iii) Surveillance and monitoring equipment;
(iv) Personnel identification documents;
(v) Communication systems;
(vi) Alarms;
(vii) Lighting;
(viii) Access control systems; and
(ix) Other security systems.
(b) On-scene survey. The vessel owner or operator must ensure that
an on-scene survey of each vessel is conducted. The on-scene survey is
to verify or collect information required in paragraph (a) of this
section. It consists of an actual survey that examines and evaluates
existing vessel protective measures, procedures, and operations for:
(1) Ensuring performance of all security duties;
(2) Controlling access to the vessel, through the use of
identification systems or otherwise;
(3) Controlling the embarkation of vessel personnel and other
persons and their effects, including personal effects and baggage
whether accompanied or unaccompanied;
(4) Supervising the handling of cargo and the delivery of vessel
stores;
(5) Monitoring restricted areas to ensure that only authorized
persons have access;
(6) Monitoring deck areas and areas surrounding the vessel; and
(7) The ready availability of security communications, information,
and equipment.
(c) Analysis and recommendations. In conducting the VSA, the
Company Security Officer (CSO) must analyze the vessel background
information and the
[[Page 39312]]
on-scene survey, and while considering the requirements of this part,
provide recommendations for the security measures the vessel should
include in the Vessel Security Plan (VSP). This includes but is not
limited to the following:
(1) Restricted areas;
(2) Response procedures for fire or other emergency conditions;
(3) Security supervision of vessel personnel, passengers, visitors,
vendors, repair technicians, dock workers, etc.;
(4) Frequency and effectiveness of security patrols;
(5) Access control systems, including identification systems;
(6) Security communication systems and procedures;
(7) Security doors, barriers, and lighting;
(8) Any security and surveillance equipment and systems;
(9) Possible security threats, including but not limited to:
(i) Damage to or destruction of the vessel or an interfacing
facility or vessel by dangerous substances and devices, arson,
sabotage, or vandalism;
(ii) Hijacking or seizure of the vessel or of persons on board;
(iii) Tampering with cargo, essential vessel equipment or systems,
or vessel stores;
(iv) Unauthorized access or use, including presence of stowaways;
(v) Smuggling dangerous substances and devices;
(vi) Use of the vessel to carry those intending to cause a security
incident and/or their equipment;
(vii) Use of the vessel itself as a weapon or as a means to cause
damage or destruction;
(viii) Attacks from seaward while at berth or at anchor; and
(ix) Attacks while at sea; and
(10) Evaluating the potential of each identified point of access,
including open weather decks, for use by individuals who might seek to
breach security, whether or not those individuals legitimately have
access to the vessel.
(d) VSA report. (1) The vessel owner or operator must ensure that a
written VSA report is prepared and included as part of the VSP. The VSA
report must contain:
(i) A summary of how the on-scene survey was conducted;
(ii) Existing security measures, procedures, and operations;
(iii) A description of each vulnerability found during the
assessment;
(iv) A description of security countermeasures that could be used
to address each vulnerability;
(v) A list of the key vessel operations that are important to
protect;
(vi) The likelihood of possible threats to key vessel operations;
and
(vii) A list of identified weaknesses, including human factors, in
the infrastructure, policies, and procedures of the vessel.
(2) The VSA report must address the following elements on board or
within the vessel:
(i) Physical security;
(ii) Structural integrity;
(iii) Personnel protection systems;
(iv) Procedural policies;
(v) Radio and telecommunication systems, including computer systems
and networks; and
(vi) Other areas that may, if damaged or used illicitly, pose a
risk to people, property, or operations on board the vessel or within a
facility.
(3) The VSA must list the persons, activities, services, and
operations that are important to protect, in each of the following
categories:
(i) Vessel personnel;
(ii) Passengers, visitors, vendors, repair technicians, facility
personnel, etc.;
(iii) Capacity to maintain safe navigation and emergency response;
(iv) Cargo, particularly dangerous goods or hazardous substances;
(v) Vessel stores;
(vi) Any vessel security communication and surveillance systems;
and
(vii) Any other vessel security systems, if any.
(4) The VSA must account for any vulnerabilities in the following
areas:
(i) Conflicts between safety and security measures;
(ii) Conflicts between vessel duties and security assignments;
(iii) The impact of watch-keeping duties and risk of fatigue on
vessel personnel alertness and performance;
(iv) Security training deficiencies; and
(v) Security equipment and systems, including communication
systems.
(5) The VSA must discuss and evaluate key vessel measures and
operations, including:
(i) Ensuring performance of all security duties;
(ii) Controlling access to the vessel, through the use of
identification systems or otherwise;
(iii) Controlling the embarkation of vessel personnel and other
persons and their effects (including personal effects and baggage
whether accompanied or unaccompanied);
(iv) Supervising the handling of cargo and the delivery of vessel
stores;
(v) Monitoring restricted areas to ensure that only authorized
persons have access;
(vi) Monitoring deck areas and areas surrounding the vessel; and
(vii) The ready availability of security communications,
information, and equipment.
(6) The VSA must be documented and the VSA report retained by the
vessel owner or operator with the VSP. The VSA and VSP must be
protected from unauthorized access or disclosure.
Sec. Sec. 104.310 Submission requirements.
(a) A completed Vessel Security Assessment (VSA) report must be
submitted with the Vessel Security Plan (VSP) required in Sec. 104.410
of this part.
(b) A vessel owner or operator may generate and submit a report
that contains the VSA for more than one vessel subject to this part, to
the extent that they share similarities in physical characteristics and
operations.
Subpart D--Vessel Security Plan (VSP)
Sec. 104.400 General.
(a) The Company Security Officer (CSO) must ensure a Vessel
Security Plan (VSP) is developed and implemented for each vessel. The
VSP:
(1) Must identify the CSO and VSO by name or position and provide
24-hour contact information;
(2) Must be written in English;
(3) Must address each vulnerability identified in the Vessel
Security Assessment (VSA);
(4) Must describe security measures for each MARSEC Level;
(5) Must state the Master's authority as described in Sec.
104.205; and
(6) May cover more than one vessel to the extent that they share
similarities in physical characteristics and operations, if authorized
and approved by the Commanding Officer, Marine Safety Center.
(b) Except for foreign vessels that have on board a valid
International Ship Security Certificate (ISSC) that attests to the
vessel's compliance with SOLAS Chapter XI-2 and the ISPS Code, part A
(Incorporated by reference, see Sec. 101.115 of this subchapter), and
having taken into account the relevant provisions in the ISPS Code,
part B, the VSP must be submitted for approval to the Commanding
Officer, Marine Safety Center (MSC), 400 Seventh Street, SW., Room
6302, Nassif Building, Washington, DC 20590-0001, in a written or
electronic format. Format for submitting the VSP electronically can be
found at http://www.uscg.mil/HQ/MSC.
(c) The VSP is sensitive security information and must be protected
in accordance with 49 CFR part 1520.
(d) If the VSP is kept in an electronic format, procedures must be
in place to
[[Page 39313]]
prevent its unauthorized deletion, destruction, or amendment.
Sec. 104.405 Format of the Vessel Security Plan (VSP).
(a) A vessel owner or operator must ensure that the VSP consists of
the individual sections listed in this paragraph (a). If the VSP does
not follow the order as it appears in the list, the vessel owner or
operator must ensure that the VSP contains an index identifying the
location of each of the following sections:
(1) Security organization of the vessel;
(2) Personnel training;
(3) Drills and exercises;
(4) Records and documentation;
(5) Response to change in MARSEC Level;
(6) Procedures for interfacing with facilities and other vessels;
(7) Declarations of Security (DoS);
(8) Communications;
(9) Security systems and equipment maintenance;
(10) Security measures for access control;
(11) Security measures for restricted areas;
(12) Security measures for handling cargo;
(13) Security measures for delivery of vessel stores and bunkers;
(14) Security measures for monitoring;
(15) Security incident procedures;
(16) Audits and Vessel Security Plan (VSP) amendments; and
(17) Vessel Security Assessment (VSA) Report.
(b) The VSP must describe in detail how the requirements of subpart
B of this part will be met.
Sec. 104.410 Submission and approval.
(a) On or before December 29, 2003, each vessel owner or operator
must either:
(1) Submit one copy of their Vessel Security Plan (VSP) for review
and approval to the Commanding Officer, Marine Safety Center (MSC) and
a letter certifying that the VSP meets applicable requirements of this
part; or
(2) If implementing a Coast Guard approved Alternative Security
Program, meet the requirements in Sec. 101.120(b) of this subchapter.
(b) Vessels built on or after July 1, 2004, must comply with the
requirements in paragraph (a) of this section 60 days prior to
beginning operations.
(c) The Commanding Officer, Marine Safety Center (MSC), will
examine each submission for compliance with this part, and either:
(1) Approve it and specify any conditions of approval, returning to
the submitter a letter stating its acceptance and any conditions, or
(2) Disapprove it, returning a copy to the submitter with a brief
statement of the reasons for disapproval.
(d) A VSP may be submitted and approved to cover more than one
vessel where the vessel design and operations are similar.
(e) Each company or vessel, owner or operator, that submits one VSP
to cover two or more vessels of similar design and operation must
address vessel-specific information that includes the physical and
operational characteristics of each vessel.
(f) A plan that is approved by the MSC is valid for 5 years from
the date of its approval.
Sec. 104.415 Amendment and audit.
(a) Amendments. (1) Amendments to a Vessel Security Plan that are
approved by the MSC may be initiated by:
(i) The vessel owner or operator; or
(ii) The Coast Guard upon a determination that an amendment is
needed to maintain the vessel's security. The Coast Guard will give the
vessel owner or operator written notice and request that the vessel
owner or operator propose amendments addressing any matters specified
in the notice. The company owner or operator will have at least 60 days
to submit its proposed amendments. Until amendments are approved, the
company owner or operator shall ensure temporary security measures are
implemented to the satisfaction of the Coast Guard.
(2) Proposed amendments must be sent to the marine safety center at
the address shown in Sec. 104.400(b) of this part. If initiated by the
company or vessel, owner or operator, the proposed amendment must be
submitted at least 30 days before the amendment is to take effect
unless the Marine Safety Center (MSC) allows a shorter period. The MSC
will approve or disapprove the proposed amendment in accordance with
Sec. 104.410 of this part.
(3) If the owner or operator has changed, the Vessel Security
Officer (VSO) must amend the Vessel Security Plan (VSP) to include the
name and contact information of the new vessel owner or operator and
submit the affected portion of the VSP for review and approval in
accordance with Sec. 104.410 of this part.
(b) Audits. (1) The CSO or VSO must ensure an audit of the VSP is
performed annually, beginning no later than one year from the initial
date of approval and attach a letter to the VSP certifying that the VSP
meets the applicable requirements of this part.
(2) The VSP must be audited if there is a change in the company's
or vessel's ownership or operator, or if there have been modifications
to the vessel, including but not limited to physical structure,
emergency response procedures, security measures, or operations.
(3) Auditing the VSP as a result of modifications to the vessel may
be limited to those sections of the VSP affected by the vessel
modifications.
(4) Unless impracticable due to the size and nature of the company
or the vessel, personnel conducting internal audits of the security
measures specified in the VSP or evaluating its implementation must:
(i) Have knowledge of methods of conducting audits and inspections,
and control and monitoring techniques;
(ii) Not have regularly assigned security duties; and
(iii) Be independent of any security measures being audited.
(5) If the results of an audit require amendment of either the VSA
or VSP, the VSO or CSO must submit, in accordance with Sec. 104.410 of
this part, the amendments to the MSC for review and approval no later
than 30 days after completion of the audit and a letter certifying that
the amended VSP meets the applicable requirements of this part.
PART 160--PORTS AND WATERWAY SAFETY--GENERAL
0
2. Revise the authority citation for part 160 to read as follows:
Authority: 33 U.S.C. 1223, 1231; 46 U.S.C. Chapter 701;
Department of Homeland Security Delegation 0170. Subpart D is also
issued under the authority of 33 U.S.C. 125 and 46 U.S.C. 3715.
0
3. In Sec. 160.203, add paragraph (f) to read as follows:
Sec. 160.203 Exemptions.
* * * * *
(f) U.S. vessels need not submit the International Ship and Port
Facility Code (ISPS) Notice information (Entry (9) to Table 160.206).
0
4. In Sec. 160.206, in the table in paragraph (a), add paragraph (9)
to read as follows:
Sec. 160.206 Information required in an NOA.
* * * * *
[[Page 39314]]
Table 160.206.--NOA Information Items
----------------------------------------------------------------------------------------------------------------
Vessels carrying CDC
-----------------------------------
Vessels not Towing vessels
Required information carrying CDC controlling
Vessels vessels carrying
CDC
----------------------------------------------------------------------------------------------------------------
* * * * * * *
(9) International Ship and Port Facility Code (ISPS)
Notice *:
(i) The date of issuance for the vessel's X X X
International Ship Security Certificate (ISSC), if
any;.................................................
(ii) Whether the ISSC, if any, is an initial Interim X X X
ISSC, subsequent and consecutive Interim ISSC, or
final ISSC;..........................................
(iii) Declaration that the approved ship security X X X
plan, if any, is being implemented;..................
(iv) If a subsequent and consecutive Interim ISSC, the X X X
reasons therefor;....................................
(v) The name and 24-hour contact information for the X X X
Company Security Officer; and........................
(vi) The name of the Flag Administration, or the X X X
recognized security organization(s) representing the
vessel flag Administration that issued the ISSC......
----------------------------------------------------------------------------------------------------------------
* The information required by items 9(i)-(iii) need not be submitted before January 1, 2004. All other
information required by item 9 need not be submitted before July 1, 2004.
* * * * *
PART 165--REGULATED NAVIGATION AREAS AND LIMITED ACCESS AREAS
0
5. Revise the authority citation for part 165 to read as follows:
Authority: 33 U.S.C. 1226, 1231; 46 U.S.C. Chapter 701; 50
U.S.C. 191, 195; 33 CFR 1.05-1(g), 6.04-1, 6.04-6 and 160.5; Pub. L.
107-295, 116 Stat. 2064; Department of Homeland Security Delegation
No. 0170.
* * * * *
PART 2--VESSEL INSPECTIONS
0
6. Revise the authority citation for part 2 to read as follows:
Authority: 33 U.S.C. 1903; 43 U.S.C. 1333; 46 U.S.C. 3103, 3205,
3306, 3307, 3703; 46 U.S.C. Chapter 701; Executive Order 12234, 45
FR 58801, 3 CFR, 1980 Comp., p. 277; Department of Homeland Security
Delegation 0170; subpart 2.45 also issued under the authority of Act
Dec. 27, 1950, Ch. 1155, secs. 1, 2, 64 Stat. 1120 (see 46 U.S.C.
App. Note prec. 1).
0
7. In Sec. 2.01-25, add new paragraph (a)(1)(viii) to read as follows:
Sec. 2.01-25 International Convention for Safety of Life at Sea
(SOLAS), 1974.
(a) * * *
(1) * * *
(viii) International Ship Security Certificate.
* * * * *
PART 31--INSPECTION AND CERTIFICATION
0
8. Revise the authority citation for part 31 to read as follows:
Authority: 33 U.S.C. 1321(j); 43 U.S.C. 2103, 3205, 3306, 3307,
3703; 46 U.S.C. Chapter 701; 49 U.S.C. 5103, 5106; Executive Order
12234, 45 FR 58801, 3 CFR, 1980 Comp., p. 277; Executive Order
12777, 56 FR 54757, 3 CFR, 1991 Comp., p. 351; Department of
Homeland Security Delegation 0170; Section 31.10-021 also issued
under the authority Sec. 4109, Public Law 101-380, 104 Stat. 515.
0
9. Revise Sec. 31.05-1(a) to read as follows:
Sec. 31.05-1 Issuance of certificate of inspection--TB/ALL.
(a) When a tank vessel is found to comply with all applicable
regulations, including the applicable provisions of subchapters E, F,
J, O, Q, S, and W of this chapter and of 33 CFR parts 104, 155, and
157, the Officer in Charge, Marine Inspection will issue a certificate
of inspection to the vessel or to its owners.
* * * * *
PART 71--INSPECTION AND CERTIFICATION
0
10. Revise the authority citation for part 71 to read as follows:
Authority: 33 U.S.C. 1321(j); 46 U.S.C. 2113, 3205, 3306, 3307;
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; Department of Homeland Security Delegation 0170.
0
11. Add new Sec. 71.25-47 to read as follows:
Sec. 71.25-47 Vessel security.
At each inspection for certification and periodic inspection, the
inspector shall examine the vessel to determine that it meets vessel
security requirements in 33 CFR part 104.
PART 91--INSPECTION AND CERTIFICATION
0
12. Revise the authority citation for part 91 to read as follows:
Authority: 33 U.S.C. 1321(j); 46 U.S.C. 3205, 3306, 3307; 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; Department of Homeland Security Delegation 0170.
0
13. Add new Sec. 91.25-47 to read as follows:
Sec. 91.25-47 Vessel security.
At each inspection for certification and periodic inspection, the
inspector shall examine the vessel to determine that it meets vessel
security requirements in 33 CFR part 104.
PART 115--INSPECTION AND CERTIFICATION
0
14. Revise the authority citation for part 115 to read as follows:
Authority: 33 U.S.C. 1321(j); 46 U.S.C. 2103, 3205, 3306, 3307;
46 U.S.C. Chapter 701; 49 U.S.C. App. 1804; Executive Order 11735,
38 FR 21243, 3 CFR, 1971-1975 Comp., p. 743; Executive Order 12234,
45 FR 58801, 3 CFR, 1980 Comp., p. 277; Department of Homeland
Security Delegation 0170.
0
15. Revise Sec. 115.404(a) to read as follows:
Sec. 115.404 Subsequent inspections for certification.
(a) An inspection for renewal of a Certificate of Inspection is
conducted to determine if the vessel is in satisfactory condition, fit
for the service intended, and complies with all applicable regulations.
It normally includes inspection and testing of the structure,
[[Page 39315]]
machinery, equipment, and on a sailing vessel, rigging and sails. The
owner or operator must conduct all tests as required by the OCMI, and
make the vessel available for all specific inspections and drills
required by subpart H of this part. In addition, the OCMI may require
the vessel to get underway.
* * * * *
PART 126--INSPECTION AND CERTIFICATION
0
16. Revise the authority citation for part 126 to read as follows:
Authority: 33 U.S.C. 1321(j); 46 U.S.C. 3205, 3306, 3307; 46
U.S.C. Chapter 701; Executive Order 111735, 38 FR 21243, 3 CFR 1971-
1975 Comp., p. 793; Department of Homeland Security Delegation 0170.
0
17. Add new Sec. 126.490 to read as follows:
Sec. 126.490 Vessel security.
At each inspection for certification and periodic inspection, the
inspector shall examine the vessel to determine that it meets vessel
security requirements in 33 CFR part 104.
PART 176--INSPECTION AND CERTIFICATION
0
18. Revise the authority citation for part 176 to read as follows:
Authority: 33 U.S.C. 1321(j); 46 U.S.C. 2103, 3205, 3306, 3307;
46 U.S.C. Chapter 701; 49 U.S.C. App. 1804; Executive Order 11735,
38 FR 21243, 3 CFR, 1971-1975 Comp., p. 277; Department of Homeland
Security Delegation 0170.
0
19. Revise Sec. 176.404(a) to read as follows:
Sec. 176.404 Subsequent inspections for certification.
(a) An inspection for renewal of a Certificate of Inspection is
conducted to determine if the vessel is in satisfactory condition, fit
for the service intended, and complies with all applicable regulations.
It normally includes inspection and testing of the structure,
machinery, equipment, and on a sailing vessel, rigging and sails. The
owner or operator must conduct all tests as required by the OCMI, and
make the vessel available for all specific inspections and drills
required by subpart H of this part. In addition, the OCMI may require
the vessel to get underway.
* * * * *
Dated: June 23, 2003.
Thomas H. Collins,
Admiral, Coast Guard Commandant.
[FR Doc. 03-16188 Filed 6-27-03; 8:45 am]
BILLING CODE 4910-15-P
[Federal Register: July 1, 2003 (Volume 68, Number 126)]
[Rules and Regulations]
[Page 39315-39338]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr01jy03-17]
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DEPARTMENT OF HOMELAND SECURITY
Coast Guard
33 CFR Part 105
[USCG-2003-14732]
RIN 1625-AA43
Facility Security
AGENCY: Coast Guard, DHS.
ACTION: Temporary interim rule with request for comments and notice of
meeting.
-----------------------------------------------------------------------
SUMMARY: This interim rule provides security measures for certain
facilities in U.S. ports. It requires owners or operators of facilities
to designate security officers for facilities, develop security plans
based on security assessments and surveys, implement security measures
specific to the facilities' operations, and comply with Maritime
Security Levels. This interim rule is one of six interim rules in
today's Federal Register that comprise a new subchapter on the
requirements for maritime security mandated by the Maritime
Transportation Security Act of 2002. These six interim rules implement
national maritime security initiatives concerning general provisions,
Area Maritime Security (ports), vessels, facilities, Outer Continental
Shelf facilities, and the Automatic Identification System. Where
appropriate, they align these domestic maritime security requirements
with those of the International Ship and Port Facility Security Code
and recent amendments to the International Convention for Safety of
Life at Sea, 1974. To best understand these interim rules, first read
the one titled ``Implementation of National Maritime Security
Initiatives'' (USCG-2003-14792), published elsewhere in today's Federal
Register.
DATES: Effective date. This interim rule is effective from July 1, 2003
until November 25, 2003.
Comments. Comments and related material must reach the Docket
Management Facility on or before July 31, 2003. Comments on collection
of information sent to the Office of Management and Budget (OMB) must
reach OMB on or before July 31, 2003.
Meeting. A public meeting will be held on July 23, 2003, from 9
a.m. to 5 p.m., in Washington, DC.
ADDRESSES: Comments. To ensure that your comments and related material
are not entered more than once in the docket, please submit them by
only one of the following means:
(1) Electronically to the Docket Management System Web site at
http://dms.dot.gov.
(2) By mail to the Docket Management Facility (USCG-2003-14732),
U.S. Department of Transportation, room PL-401, 400 Seventh Street SW.,
Washington, DC 20590-0001.
(3) By fax to the Docket Management Facility at 202-493-2251.
(4) By delivery to room PL-401 on the Plaza level of the Nassif
Building, 400 Seventh Street SW., Washington, DC, between 9 a.m. and 5
p.m., Monday through Friday, except Federal holidays. The telephone
number is 202-366-9329.
You must mail comments on collection of information to the Office
of Information and Regulatory Affairs, Office of Management and Budget,
725 17th Street NW., Washington, DC 20503, ATTN: Desk Officer, U.S.
Coast Guard. Meeting. A public meeting will be held on July 23, 2003 in
Washington, DC at the Grand Hyatt Washington, DC, 1000 H Street, NW.,
Washington, DC 20001.
FOR FURTHER INFORMATION CONTACT: If you have questions on this interim
rule, call Lieutenant Gregory Purvis, U.S. Coast Guard by telephone,
202-267-1103, toll-free telephone, 1-800-842-8740 ext. 7-1103, or
electronic mail msregs@comdt.uscg.mil. If you have questions on viewing
or submitting material to the docket, call Ms. Dorothy Beard, Chief,
Dockets, Department of Transportation, at 202-366-5149.
SUPPLEMENTARY INFORMATION: Due to the short timeframe given to
implement these National Maritime Transportation Security initiatives,
as directed by the Maritime Transportation Security Act of 2002 (MTSA,
Public Law 107-295, 116 STAT. 2064), and to ensure all comments are in
the public venue for these important rulemakings, we are not accepting
comments containing protected information for these interim rules. We
request you submit comments, as explained in the Request for Comments
section below, and discuss your concerns or support in a manner that is
not security sensitive. We also request that you not submit proprietary
information as part of your comment.
The Docket Management Facility maintains the public docket for this
rulemaking. Comments and material received from the public, as well as
[[Page 39316]]
documents mentioned in this preamble as being available in the docket,
will become part of this docket and will be available for inspection or
copying at room PL-401 on the Plaza level of the Nassif Building, 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.
Electronic forms of all comments received into any of our dockets
can be searched by the name of the individual submitting the comment
(or signing the comment, if submitted on behalf of an association,
business, labor unit, etc.) and is open to the public without
restriction. You may also review the Department of Transportation's
complete Privacy Act Statement in the Federal Register published on
April 11, 2000 (65 FR 19477-78), or you may visit http://dms.dot.gov/.
Request for Comments
We encourage you to participate in this rulemaking by submitting
comments and related material. Your comments will be considered for the
final rule we plan to issue before November 25, 2003, to replace this
interim rule. If you choose to comment on this rule, please include
your name and address, identify the specific docket number for this
interim rule (USCG-2003-14732), indicate the specific heading of this
document to which each comment applies, and give the reason for each
comment. If you have comments on another rule, please indicate in a
separate letter to the docket for that rulemaking. You may submit your
comments and material by mail, hand delivery, fax, or electronic means
to the Docket Management Facility at the address under ADDRESSES.
Please submit your comments and material by only one means. If you
submit them by mail or hand delivery, submit them in an unbound format,
no larger than 8\1/2\ by 11 inches, suitable for copying and electronic
filing. If you submit them by mail and would like to know that they
reached the Facility, please enclose a stamped, self-addressed postcard
or envelope. We will consider all comments and material received during
the comment period. We may change this interim rule in view of them.
Public Meeting
We will hold a public meeting on July 23, 2003, in Washington, DC
at the Grand Hyatt Hotel, at the address listed under ADDRESSES. The
meeting will be from 9 a.m. to 5 p.m. to discuss all of the maritime
security interim rules, and the Automatic Identification System (AIS)
interim rule, found in today's Federal Register. In addition, you may
submit a request for other public meetings to the Docket Management
Facility at the address under ADDRESSES explaining why another one
would be beneficial. If we determine that other meetings would aid this
rulemaking, we will hold them at a time and place announced by a later
notice in the Federal Register.
Regulatory Information
We did not publish a notice of proposed rulemaking for this
rulemaking and are making this interim rule effective upon publication.
Section 102(d)(1) of the MTSA requires the publication of an interim
rule as soon as practicable without regard to the provisions of chapter
5 of title 5, U.S. Code (Administrative Procedure Act). The Coast Guard
finds that harmonization of U.S. regulations with maritime security
measures adopted by the International Maritime Organization (IMO) in
December 2002, and the need to institute measures for the protection of
U.S. maritime security as soon as practicable, furnish good cause for
this interim rule to take effect immediately under both the
Administrative Procedure Act and section 808 of the Congressional
Review Act.
Background and Purpose
A summary of the Coast Guard's regulatory initiatives for maritime
security can be found under the ``Background and Purpose'' section in
the preamble to the interim rule titled ``Implementation of National
Maritime Security Initiatives'' (USCG-2003-14792) published elsewhere
in today's Federal Register.
Discussion of Comments Addressing Facility Issues in the Notice of
Meeting
For a discussion of comments on facilities at the public meetings
and in the docket, see the interim rule titled ``Implementation of
National Maritime Security Initiatives'' (USCG-2003-14792) published
elsewhere in today's Federal Register.
Discussion of Interim Rule
The purpose of this rulemaking is to require security measures for
facilities in order to reduce the risk of and to mitigate the results
of an act that threatens the security of personnel, the facility, and
the public. This rulemaking combines international requirements and
existing domestic policy, and adds part 105, Facility Security, to the
new subchapter H, Maritime Security, of Title 33 of the Code of Federal
Regulation. A general description of the process used in developing
subchapter H and its component parts appears in the interim rule titled
``Implementation of National Maritime Security Initiatives'' (USCG-
2003-14792) published elsewhere in today's Federal Register.
This rulemaking applies to facilities subject to 33 CFR parts 126,
127, and 154; facilities that receive vessels certified to carry more
than 150 passengers; and facilities that receive vessels on
international voyages, including vessels solely navigating the Great
Lakes.
The MTSA and the International Ship and Port Facility Security
(ISPS) Code use different terms to define similar, if not identical,
persons or things. These differing terms sometimes match up with the
terms used in subchapter H, but sometimes they do not. For a table of
the terms used in subchapter H and their related terms in the MTSA and
the ISPS Code, see the Discussion of Interim Rule section in the
preamble for the interim rule titled ``Implementation of National
Maritime Security Initiatives'' (USCG-2003-14792), published elsewhere
in today's Federal Register.
This rulemaking does not apply to Outer Continental Shelf (OCS)
platforms and deepwater ports. Those structures are covered by the
rulemaking ``Outer Continental Shelf Facility Security'' (USCG-2003-
14759), published elsewhere in today's Federal Register.
This preamble describes the facilities regulated by part 105 and
the requirements for conducting Facility Security Assessments,
developing Facility Security Plans, and implementing security measures
and procedures. The requirements in part 105 are consistent with
requirements in the ISPS Code. Facility security includes the
requirements discussed below:
Compliance
The Coast Guard, as provided in 33 CFR part 126, 127, and 154, will
verify facility compliance with this part during inspections.
As required by Regulation 3 of Chapter XI-2 of the International
Convention for Safety of Life at Sea, 1974 (SOLAS) and the ISPS Code,
part A, section 5, the Coast Guard has published additional
requirements that provide the U.S. (as a contracting government) with
requirements for setting and communicating changes in Maritime Security
(MARSEC) Level, completing Declarations of Security, and additional
instructions for all facilities when MARSEC Level 3 is set.
[[Page 39317]]
Waivers
The waiver section details procedures for requesting a waiver for
the benefit of facility owners or operators who find specific
requirements of the rulemaking to be unnecessary.
Equivalents
The equivalents section details procedures for requesting an
equivalency for specific requirements of the rulemaking. Equivalents
are intended to allow facility owners or operators to provide an
alternative provision or arrangement that provides the same level of
security as a specific requirement contained within this part.
Alternative Security Program
This part makes provision to allow owners or operators of
facilities to implement an Alternative Security Program that has been
reviewed and accepted by the Commandant (G-MP), to meet the
requirements of this part. Alternative Security Programs must be
comprehensive and based on a security assessment to demonstrate it
meets the intent of each section of this part. Owners or operators who
choose to implement an appropriate Alternative Security Program will be
required to implement it in its entirety to be deemed in compliance
with this part.
Evaluating Submissions of Waivers, Equivalents, and Alternative
Security Programs
In our evaluation of waivers, equivalencies, and Alternative
Security Programs, the Coast Guard will accept a self-assessment or
demonstration using any risk management tools acceptable to the Coast
Guard. This demonstration may be requested to show that the proposed
waiver, equivalency or Alternative Security Program is at least as
effective as that intended by this interim rule.
Facility Owner or Operator Responsibilities
This rule requires each facility owner or operator to develop an
effective security plan that incorporates detailed preparation,
prevention, and response activities for each MARSEC Level, and detail
the organizations, or personnel responsible for carrying out those
activities. The requirements discussed in this subpart are also
consistent with requirements in the ISPS Code. Facility owner or
operator responsibilities include:
[sbull] Designating a Facility Security Officer.
[sbull] Ensuring a Facility Security Assessment is conducted.
[sbull] Developing and submitting for approval a Facility Security
Plan.
[sbull] Operating the facility in accordance with the approved
Facility Security Plan.
[sbull] Implementing additional security measures required by
changes in MARSEC Level.
[sbull] Reporting all breaches of security and security incidents.
[sbull] Coordinating shore leave for vessel personnel or crew
change-out, as well as access through the facility of visitors to the
vessel, including representatives of seafarers' welfare and labor
organizations, in advance of a vessel's arrival. (In the past, some
facilities may have denied access to seafarers and seafarer welfare
organizations where there was not an articulable security basis for
doing so. The Coast Guard is including their provision in this interim
rule to encourage facilities to allow such access when appropriate.)
Facility Security Officer (FSO)
This rule requires that a facility owner or operator designate in
writing a Facility Security Officer for each facility. The Facility
Security Officer may be a full-time or collateral-duty position. The
Facility Security Officer must have general knowledge on a range of
issues such as security administration, relevant international laws,
domestic regulations, current security threats and patterns, risk
assessment methodology, inspections, control procedures and conducting
audits. The most important duties that must be performed by the
Facility Security Officer would include implementing a Facility
Security Plan; periodically auditing and updating the Facility Security
Assessment and Facility Security Plan; ensuring that adequate training
is provided to facility personnel; and ensuring the facility is
operating in accordance with the plan and in continuous compliance with
part 105. The Facility Security Officer may assign security duties to
other facility personnel; however, the Facility Security Officer
remains responsible for these duties.
Training
Required training for facility personnel must be specified in the
Facility Security Plan. Specific security training courses for the
Facility Security Officer and facility personnel will not be required
by the Coast Guard. While formal training may be appropriate, we are
not mandating specifics. Facility owners or operators must certify that
security personnel are, in fact, properly trained to perform their
duties. The types of training required must also be consistent with the
training requirements described in this subpart. The Facility Security
Officer is also required to ensure that facility security persons
possess necessary training to maintain the overall security of the
facility.
Drill and Exercise Requirements
Exercises are required to ensure the adequacy of the Facility
Security Plans and are required to be conducted at least once each
calendar year, with no more than 18 months between exercises. Drills,
which are smaller in scope than exercises, must be conducted at least
every 3 months. Exercises may be facility specific, or as part of a
cooperative exercise program with applicable Facility and Vessel
Security Plans or Port exercises. Exercises for security may be
combined with other required exercises, as appropriate.
Security Systems and Equipment Maintenance
Procedures and/or policies must be developed and implemented to
ensure security systems and equipment are tested and operated in
accordance with the instructions of the manufacturer and ready for use.
Security Measures
Security measures for specific activities must be scalable in order
to provide increasing levels of security at increasing MARSEC Levels.
An effective security program relies on detailed procedures that
clearly indicate the preparation and prevention activities that will
occur at each threat level and the organizations, or personnel, who are
responsible for carrying out those activities. Security Measures must
be developed for the following activities:
[sbull] Security measures for access control;
[sbull] Security measures for restricted areas;
[sbull] Security measures for handling cargo;
[sbull] Security measures for delivery of vessel stores and
bunkers; and
[sbull] Security measures for monitoring.
Security Incident Procedures
Each facility owner or operator must develop security incident
procedures for responding to transportation security incidents. The
security incident procedures must explain the facility's reaction to an
emergency, including the notification and coordination with local,
State, and federal authorities and Under Secretary of Emergency
Preparedness and Response. The security incident procedures must also
explain actions for securing the facility and evacuating
[[Page 39318]]
personnel, as well as actions for securing vessels moored to the
facility and evacuating passengers and crew.
Declaration of Security (DoS)
A Declaration of Security is a written agreement between the
facility and a vessel that provides a means for ensuring that critical
security concerns are properly addressed prior to and during a vessel-
to-facility interface. The Declaration of Security addresses security
by delineating responsibilities for security arrangements and
procedures between a vessel and facility. This requirement is similar
to the existing U.S. practice for vessel-to-facility oil transfer
proceedings.
Only certain passenger vessels and vessels carrying Certain
Dangerous Cargoes, in bulk, will complete a Declaration of Security for
every evolution regardless of the MARSEC Level. At MARSEC Levels 2 and
3, all vessels and facilities would need to complete the Declaration of
Security.
Facilities that frequently receive the same vessel may execute a
continuing Declaration of Security--a single Declaration of Security
for multiple visits.
All Declarations of Security must state the security activities for
which the facility and vessel are responsible during vessel-to-facility
interfaces. Declarations of Security must be kept as part of the
facility's recordkeeping.
Facility Security Assessment (FSA)
This rule requires all regulated facilities to complete a Facility
Security Assessment, which is an essential and integral part of the
process of developing and updating the required Facility Security Plan.
The Facility Security Plan is based on the results of the Facility
Security Assessment. The Facility Security Officer must examine and
evaluate existing facility protective measures, procedures, and
operations.
The Facility Security Officer must also examine each identified
point of access, including rail access, roads, waterside, and gates,
and evaluate its potential for use by individuals who might engage in
unlawful acts, including individuals with legitimate access, as well as
those seeking unauthorized entry.
Each facility owner or operator is required to document and retain
its Facility Security Assessment for a period of five years. Prior to
conducting a Facility Security Assessment, the Facility Security
Officer is responsible for researching and using available information
on the assessment of threat for the port at which the facility is
located, as well as vessels that would call on the facility. The first
step in the facility security process is to conduct an on-scene survey.
The on-scene survey is used to examine and evaluate existing facility
protective measures, procedures and operations. In conducting the
Facility Security Assessment, the facility owner or operator must
ensure that the Facility Security Officer analyzes the facility
background information and the results of the on scene survey, and
considering the requirements of this interim rule, provide
recommendation to establish and prioritize the security measures that
should be included in the Facility Security Plan. The facility owner or
operator them must ensure that a written Facility Security Assessment
report is prepared and included in the Facility Security Plan. The
Facility Security Assessment must be reviewed and updated each time the
Facility Security Plan is revised and when the Facility Security Plan
is submitted for re-approval every five years. The facility owner or
operator then must ensure that a written Facility Security Assessment
report is prepared and included as an appendix to the Facility Security
Plan.
The Facility Security Officer is also responsible for ensuring that
the Facility Security Assessment is periodically reviewed and updated,
taking into account changes in the facility and its operations. Before
a plan could be renewed or revised, a new Facility Security Assessment
would need to be conducted.
The Facility Security Officer is responsible for obtaining and
recording any specific information required to conduct the Facility
Security Assessment.
Facility Security Plan (FSP)
This subpart contains requirements for Facility Security Plans. The
requirements discussed in this subpart are consistent with requirements
in the ISPS Code.
Facility Security Plans must incorporate the results of the
required Facility Security Assessment and consider the recommended
measures appropriate to each facility.
Facility Security Plans can be combined with or complement existing
safety management systems. The plans may be kept in an electronic
format, protected by means to prevent it from being deleted, destroyed
or overwritten. The plans must also be protected from unauthorized
access or disclosure.
Facility Security Plans required under this rulemaking must
contain:
[sbull] A list of measures and equipment needed to prevent or deter
dangerous substances and devices which could be used against people,
vessels or ports and the carriage of which is not authorized from being
introduced by any means on to the facility;
[sbull] Requirements for the prevention of unauthorized access to
the facility and to restricted areas of the facility;
[sbull] Documented procedures for responding to security threats or
breaches of security, including provisions for maintaining critical
operations of the facility or the vessel-to-port interface;
[sbull] Documented procedures for evacuation in case of security
threats or breaches of security;
[sbull] Procedures for training, exercises, and drills associated
with the plan;
[sbull] Documented procedures for interfacing with port and vessel
security activities;
[sbull] Documented procedures for the periodic review of the
Facility Security Plan and for updating it;
[sbull] Documented procedures for reporting security incidents;
[sbull] Written designation of the Facility Security Officer;
[sbull] A list of the duties and responsibilities of all facility
personnel with a security role;
[sbull] A list of measures to ensure the security of information
contained in the plan;
[sbull] A maintenance system to maintain operational readiness of
all required equipment using manufacturers' recommended maintenance
instructions and periodic inspection;
[sbull] A list of measures needed to ensure effective security of
cargo, cargo processing, and the cargo-handling equipment at the
facility; and
[sbull] A completed Facility Vulnerability and Security Measures
Summary (Form CG-6025) for each facility covered by the Plan.
Submission and Approval of Security Plan
The Facility Security Plan, including the Facility Security
Assessment report and the Facility Vulnerability and Security Measures
Summary (Form CG-6025), must be submitted to and reviewed by the
cognizant COTP. Once the COTP finds that the plan meets the security
requirements in part 105, the submitter will receive an approval letter
that may contain conditions of the approval.
If the cognizant COTP requires more time than is indicated in the
requirements of the interim rule to review a submitted Facility
Security Plan, the cognizant COTP may return to the submitter a written
acknowledgement stating that the Coast Guard is currently reviewing the
[[Page 39319]]
Facility Security Plan submitted for approval, and that the facility
may continue to operate so long as the facility remains in compliance
with the submitted Facility Security Plan.
If the COTP finds that the Facility Security Plan does not meet the
security requirements, the plans would be returned to the facility with
a disapproval letter with an explanation of why the plan does not meet
the part 105 requirements.
Security plans must be reviewed by the Coast Guard every time:
[sbull] The Facility Security Assessment is altered;
[sbull] Failures are identified during an exercise of the Facility
Security Plan; and
[sbull] There is a change in ownership or operational control of
the facility or there are amendments to the Facility Security Plan.
Regulatory Assessment
This interim rule is a ``significant regulatory action'' under
section 3(f) of Executive Order 12866, Regulatory Planning and Review,
and has been reviewed by the Office of Management and Budget 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 Cost
Assessment is available in the docket as indicated under ADDRESSES. A
summary of the Assessment follows:
Cost Assessment
For the purposes of good business practice or regulations
promulgated by other Federal and State agencies, many companies already
have spent a substantial amount of money and resources to upgrade and
improve security. The costs shown in this assessment do not include the
security measures these companies have already taken to enhance
security.
We realize that every company engaged in maritime commerce will not
implement this interim rule exactly as presented in the assessment.
Depending on each company's choices, some companies could spend much
less than what is estimated herein while others could spend
significantly more. In general, we assume that each company will
implement this interim rule differently based on the type of facilities
it owns or operates and whether it engages in international or domestic
trade.
The population affected by this interim rule is approximately 5,000
facilities, and the estimated Present Value (PV) cost to these
facilities is approximately PV $5.399 billion (2003 to 2012, 7 percent
discount rate). Approximately PV $2.718 billion of this total is
attributed to facilities engaged in the transfer of hazardous bulk
liquids (petroleum, edible oils, and liquefied gases). The remaining PV
$2.681 billion is attributable to facilities that receive vessels on
international voyages or carry more than 150 passengers, or fleet
barges carrying certain dangerous cargoes. During the initial year of
compliance, the cost is attributable to purchasing and installing
equipment, hiring security officers, and preparing paperwork. The
initial cost is an estimated $1.125 billion (non-discounted, $498
million for the facilities with hazardous bulk liquids, $627 million
for the other facilities). Following initial implementation, the annual
cost is an estimated $656 million (non-discounted, $341 million for the
facilities with hazardous bulk liquids, $315 million for the other
facilities).
Approximately 51 percent of the initial cost is for installing or
upgrading equipment, 30 percent for hiring and training Facility
Security Officers, 14 percent for hiring additional security guards,
and 5 percent for paperwork (Facility Security Assessments and Facility
Security Plans). Following the first year, approximately 52 percent of
the annual cost is for Facility Security Officers (cost and training),
24 percent for security guards, 9 percent for paperwork (updating
Facility Security Assessments and Facility Security Plans), 9 percent
for operations and maintenance for equipment, and approximately 6
percent for drills. The cost of facility security consists primarily of
installing or upgrading equipment and designating Facility Security
Officers.
Benefit Assessment
This rule is one of six interim rules that implement national
maritime security initiatives concerning general provisions, Area
Maritime Security (ports), vessels, facilities, Outer Continental Shelf
facilities, and AIS. The Coast Guard used the National Risk Assessment
Tool (N-RAT) to assess benefits that would result from increased
security for vessels, facilities, Outer Continental Shelf facilities,
and ports. The N-RAT considers threat, vulnerability, and consequences
for several maritime entities in various security-related scenarios.
For a more detailed discussion on the N-RAT and how we employed this
tool, refer to ``Applicability of National Maritime Security
Initiatives'' in the interim rule titled ``Implementation of National
Maritime Security Initiatives'' (USGC-2003-14792) published elsewhere
in today's Federal Register. For this benefit assessment, the Coast
Guard used a team of experts to calculate a risk score for each entity
and scenario before and after the implementation of required security
measures. The difference in before and after scores indicates the
benefit of the proposed action.
We recognized that the interim rules are a ``family'' of rules that
will reinforce and support one another in their implementation. We must
ensure, however, that risk reduction that is credited in one rulemaking
is not also credited in another. For a more detailed discussion on the
benefit assessment and how we addressed the potential to double-count
the risk reduced, refer to ``Benefit Assessment'' in the interim rule
titled ``Implementation of National Maritime Security Initiatives''
(USCG-2003-14792) published elsewhere in today's Federal Register.
We determined annual risk points reduced for each of the six
interim rules using the N-RAT. The benefits are apportioned among the
Vessel, Facility, OCS Facility, AMS, and AIS requirements. As shown in
Table 1, the implementation of Facility Security Plans for the affected
population reduces 473,659 risk points annually through 2012. The
benefits attributable for part 101--General Provisions--were not
considered separately since it is an overarching section for all the
parts.
Table 1.--Annual Risk Points Reduced by the Interim Rules
----------------------------------------------------------------------------------------------------------------
Annual risk points reduced by rulemaking
-------------------------------------------------------------------------------
Maritime entity Vessel Facility OCS facility
security plans security plans security plans AMS plans AIS
----------------------------------------------------------------------------------------------------------------
Vessels......................... 778,633 3,385 3,385 3,385 1,448
Facilities...................... 2,025 469,686 .............. 2,025 ..............
[[Page 39320]]
OCS Facilities.................. 41 .............. 9,903 .............. ..............
Port Areas...................... 587 587 .............. 129,792 105
Total....................... 781,285 473,659 13,288 135,202 1,553
-----------------
----------------------------------------------------------------------------------------------------------------
Once we determined the annual risk points reduced, we discounted
these estimates to their present value (seven percent discount rate,
2003-2012) so that they could be compared to the costs. We presented
the cost effectiveness, or dollars per risk point reduced, in two ways:
First, we compared the first-year cost and first-year benefit because
first-year cost is the highest in our assessment as companies develop
security plans and purchase equipment. Second, we compared the 10-year
PV cost and the 10-year PV benefit. The results of our assessment are
presented in Table 2.
Table 2.--First-Year and 10-Year PV Cost and Benefit of the Interim Rules
----------------------------------------------------------------------------------------------------------------
Interim rule
-------------------------------------------------------------------------------
Item Vessel Facility OCS facility
security plans security plans security plans AMS plans AIS \1\
----------------------------------------------------------------------------------------------------------------
First-Year Cost (millions)...... $218 $1,125 $3 $120 $41
First-Year Benefit.............. 781,285 473,659 13,288 135,202 1,553
First-Year Cost Effectiveness ($/ $279 $2,375 $205 $890 $26,391
Risk Point Reduced)............
10-Year PV Cost (millions)...... $1,368 $5,399 $37 $477 $42
10-Year PV Benefit.............. 5,871,540 3,559,655 99,863 1,016,074 11,671
10-Year PV Cost Effectiveness ($/ $233 $1,517 $368 $469 $3,624
Risk Point Reduced)............
----------------------------------------------------------------------------------------------------------------
\1\ Cost less monetized safety benefit.
Small Entities
Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have
considered whether this interim rule would have a significant economic
impact on a substantial number of small entities. The term ``small
entities'' comprises small businesses, not-for-profit organizations
that are independently owned and operated and are not dominant in their
fields, and governmental jurisdictions with populations of less than
50,000. This interim rule does not require a general notice of proposed
rulemaking and, therefore, is exempt from the requirements of the
Regulatory Flexibility Act. Although this interim rule is exempt, we
have reviewed it for potential economic impacts on small entities. An
Initial Regulatory Flexibility Analysis discussing the impact of this
interim rule on small entities is available in the docket where
indicated under ADDRESSES.
Our assessment (copy available in the docket) concludes that
implementing this interim rule may have a significant economic impact
on a substantial number of small entities.
There are approximately 1,200 companies that own facilities that
will be affected by the interim rule. We researched these companies,
and found revenue and business size data for 581 of them (48 percent).
Of the 581, we determined that 296 are small entities according to
Small Business Administration standards.
The cost of the interim rule to each facility is dependent on the
security measures already in place at each facility and on the relevant
risk to a maritime transportation security incident. The interim rule
calls for specific security measures to be in place at each affected
facility. We realize, however, that most facilities already have
implemented security measures that may satisfy the requirements of this
rule. For example, we note that every facility will develop a Facility
Security Assessment and a Facility Security Plan, but not all of them
may need to install or upgrade fences or lighting equipment.
For this reason, we analyzed the small entities under two
scenarios, a higher cost and lower cost scenarios. The higher cost
scenario uses an estimated initial cost of $1,942,500 and its
corresponding annual cost of $742,700. The higher cost scenario assumes
extensive capital improvements will be undertaken by the facilities in
addition to the cost of complying with the minimum requirements
(assigning Facility Security Officers, drafting Facility Security
Assessments, drafting Facility Security Plans, conducting Training,
performing Drills, and completing Declarations of Security). The lower
cost scenario used an initial cost of $133,500 and annual cost of
$156,800 for complying with the minimum requirements in the interim
rule.
In the higher cost scenario, we estimate that the annual revenues
of 94 percent of the small entities may be impacted initially by more
than 5 percent, while the annual revenues of 80 percent of the small
entities may be impacted annually by more than 5 percent. In the lower
cost scenario, we found that the annual revenues of 57 percent of the
small entities may be impacted initially and annually by more than 5
percent.
Assistance for Small Entities
Under section 213(a) of the Small Business Regulatory Enforcement
Fairness Act of 1996 (Pub. L. 104-121), we want to assist small
entities in understanding this interim rule so that they can better
evaluate its effects on them and participate in the rulemaking. If the
rule would affect your small business, organization, or governmental
jurisdiction and you have questions concerning its provisions or
options for compliance, please consult LT Gregory Purvis by telephone
202-267-1103, toll-free telephone 1-800-842-8740 ext. 7-
[[Page 39321]]
1103, or electronic mail msregs@comdt.uscg.mil. Small businesses may send comments on the actions of Federal
employees who enforce, or otherwise determine compliance with, Federal
regulations to the Small Business and Agriculture Regulatory
Enforcement Ombudsman and the Regional Small Business Regulatory
Fairness Boards. The Ombudsman evaluates these actions annually and
rates each agency's responsiveness to small business. If you wish to
comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR
(1-888-734-3247).
Collection of Information
This interim rule calls for a collection of information under the
Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520). As defined in 5
CFR 1320.3(c), ``collection of information'' comprises reporting,
recordkeeping, monitoring, posting, labeling, and other similar
actions. The title and description of the information collections, a
description of those who must collect the information, and an estimate
of the total annual burden follow. The estimate covers the time for
reviewing instructions, searching existing sources of data, gathering
and maintaining the data needed, and completing and reviewing the
collection.
This interim rule modifies an existing OMB-approved collection--
1625-0077 [formerly 2115-0557]. A summary of the revised collection
follows.
Title: Security Plans for Ports, Vessels, Facilities, and Outer
Continental Shelf Facilities and Other Security-Related Requirements.
OMB Control Number: 1625-0077.
Summary of the Collection of Information: The Coast Guard requires
facilities to draft and maintain Facility Security Assessments and
Facility Security Plans. It also requires that, under certain
circumstances, documentation and letters be provided to the Coast Guard
to ensure compliance with the security requirements. Finally, the Coast
Guard requires that a Declaration of Security be completed between
facilities and vessels handling certain types of cargo.
Need for Information: The primary need for information is to
identify the adequate security mitigating measures that will be
implemented when needed. Additionally, the Coast Guard intends to
collect a summary of the vulnerabilities and selected security measures
from the facilities regulated under this rule. The data will be
submitted on form CG-6025, Facility Vulnerability and Security Measures
Summary. Electronic submission when available will be accepted and
encouraged. The form must be included in the Facility Security Plan as
an annex to assist COTPs in the development of the Area Maritime
Security Plan.
Proposed Use of Information: The information will be used to
identify and communicate the security mitigating measures to the Coast
Guard and necessary personnel. Declarations of Security will be used by
some facilities and vessels to identify and delineate the security
responsibilities between a vessel and a facility.
Description of the Respondents: The Facility Security Officer or
another designated person is responsible for developing the Facility
Security Assessment and the Facility Security Plan. For some
facilities, the Facility Security Officer will also complete a
Declaration of Security.
Number of Respondents: 4,965 Facility Security Officers.
Frequency of Response: Facility Security Assessments and Facility
Security Plans are to be submitted for approval initially, and will be
reviewed annually. Declarations of Security are to be completed
whenever certain vessels are being serviced by a facility.
Burden of Response: The burden of developing each Facility Security
Assessment and each Facility Security Plan is estimated to take 80
hours for some facilities and 40 hours for others. Updating each
assessment or plan is estimated to take 4 hours for some facilities and
2 hours for others. Each Declaration of Security is expected to be 15
minutes.
Estimate of Total Annual Burden: Facility Security Assessments and
Facility Security Plans will have a total burden in the initial year of
528,240 hours (264,120 for the assessments and 264,120 for the plans).
Annually, the total burden of the assessments and the plans is 26,412
hours (13,206 for the assessments and 13,206 for the plans).
Declarations of Security will have an annual burden of 581,775 hours.
The total burden hours for this interim rule are 528,240 hours in the
initial year, and 608,187 hours in subsequent years. For a summary of
all revisions to this existing OMB-approved collection, refer to
Collection of Information in the interim rule titled ``Implementation
of National Maritime Security Initiatives'' (USCG-2003-14792) published
elsewhere in today's Federal Register.
As required by the Paperwork Reduction Act of 1995 (44 U.S.C.
3507(d)), we have submitted a copy of this interim rule to the Office
of Management and Budget (OMB) for its review of the collection of
information. Due to the circumstances surrounding this temporary rule,
we asked for ``emergency processing'' of our request. We received OMB
approval for the collection of information on June 16, 2003. It is
valid until December 31, 2003.
We ask for public comment on the collection of information to help
us determine how useful the information is; whether it can help us
perform our functions better; whether it is readily available
elsewhere; how accurate our estimate of the burden of collection is;
how valid our methods for determining burden are; how we can improve
the quality, usefulness, and clarity of the information; and how we can
minimize the burden of collection.
If you submit comments on the collection of information, submit
them both to OMB and to the Docket Management Facility where indicated
under ADDRESSES, by the date under DATES.
You need not respond to a collection of information unless it
displays a currently valid control number from OMB. We received OMB
approval for the collection of information on June 16, 2003. It is
valid until December 31, 2003.
Federalism
A rule has implications for federalism under Executive Order 13132,
Federalism, if it has a substantial direct effect on State or local
governments and would either preempt State law or impose a substantial
direct cost of compliance on them. See the ``Federalism'' section in
the interim rule preamble titled ``Implementation of National Maritime
Security Initiatives'' (USCG-2003-14792), published elsewhere in
today's Federal Register, for a detailed of the analysis under this
Executive Order.
Unfunded Mandates Reform Act
The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538)
requires Federal agencies to assess the effects of their discretionary
regulatory actions. In particular, the Act addresses actions that may
result in the expenditure by a State, local, or tribal government, in
the aggregate, or by the private sector of $100,000,000 or more in any
one year. This rule is exempted from assessing the effects of the
regulatory action as required by the Act because it is necessary for
the national security of the U.S.
Taking of Private Property
This interim rule will not effect a taking of private property or
otherwise have taking implications under Executive Order 12630,
Governmental
[[Page 39322]]
Actions and Interference with Constitutionally Protected Property
Rights.
Civil Justice Reform
This interim rule meets applicable standards in sections 3(a) and
3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize
litigation, eliminate ambiguity, and reduce burden.
Protection of Children
We have analyzed this interim rule under Executive Order 13045,
Protection of Children from Environmental Health Risks and Safety
Risks. While this interim rule is an economically significant rule, it
does not create an environmental risk to health or risk to safety that
may disproportionately affect children.
Indian Tribal Governments
This interim rule does not have tribal implications under Executive
Order 13175, Consultation and Coordination with Indian Tribal
Governments, because it does not have a substantial direct effect on
one or more Indian tribes, on the relationship between the Federal
Government and Indian tribes, or on the distribution of power and
responsibilities between the Federal Government and Indian tribes.
Energy Effects
We have analyzed this interim rule under Executive Order 13211,
Actions Concerning Regulations That Significantly Affect Energy Supply,
Distribution, or Use. We have determined that it is not a ``significant
energy action'' under that order. Although it is a ``significant
regulatory action'' under Executive Order 12866, it is not likely to
have a significant adverse effect on the supply, distribution, or use
of energy. The Administrator of the Office of Information and
Regulatory Affairs has not designated it as a significant energy
action. Therefore, it does not require a Statement of Energy Effects
under Executive Order 13211.
This interim rule has a positive effect on the supply,
distribution, and use of energy. The interim rule provides for security
assessments, plans, procedures, and standards, which will prove
beneficial for the supply, distribution, and use of energy at increased
levels of maritime security.
Trade Impact Assessment
The Trade Agreement Act of 1979 (19 U.S.C. 2501-2582) prohibits
Federal agencies from engaging in any standards or related activities
that create unnecessary obstacles to the foreign commerce of the U.S.
Legitimate domestic objectives, such as safety and security, are not
considered unnecessary obstacles. The Act also requires consideration
of international standards and, where appropriate, that they be the
basis for U.S. standards. We have assessed the potential effect of this
interim rule and have determined that it would likely create obstacles
to the foreign commerce of the U.S. However, because these regulations
are being put in place in order to further a legitimate domestic
objective, namely to increase the security of the U.S., any obstacles
created by the regulation are not considered unnecessary obstacles.
Environment
We have considered the environmental impact of this rule and
concluded that under figure 2-1, paragraph (34)(a) and (34)(c), of
Commandant Instruction M16475.lD, this rule is categorically excluded
from further environmental documentation. This interim rule concerns
security assessments, plans, training, and the establishment of
security positions that will contribute to a higher level of marine
safety and security for U.S. ports. A ``Categorical Exclusion
Determination'' is available in the docket where indicated under
ADDRESSES or SUPPLEMENTARY INFORMATION.
This rulemaking will not significantly impact the coastal zone.
Further, the rulemaking and the execution of this rule will be done in
conjunction with appropriate State coastal authorities. The Coast Guard
will, therefore, comply with the requirements of the Coastal Zone
Management Act while furthering its intent to protect the coastal zone.
List of Subjects in 33 CFR Part 105
Facilities, Maritime security, Reporting and recordkeeping
requirements, Security measures.
Dated: June 23, 2003.
Thomas H. Collins,
Admiral, U.S. Coast Guard, Commandant.
0
For the reasons discussed in the preamble, the Coast Guard adds part
105 to subchapter H of chapter I of title 33 in the CFR to read as
follows:
PART 105-FACILITY SECURITY
Subpart A-General
Sec.
105.100 Definitions.
105.105 Applicability.
105.106 Public access areas.
105.110 Exemptions.
105.115 Compliance dates.
105.120 Compliance documentation.
105.125 Noncompliance.
105.130 Waivers.
105.135 Equivalents.
105.140 Alternative Security Program.
105.145 Maritime Security (MARSEC) Directive.
105.150 Right to appeal.
Subpart B--Facility Security Requirements
105.200 Owner or operator.
105.205 Facility Security Officer (FSO).
105.210 Facility personnel with security duties.
105.215 Security training for all other facility personnel.
105.220 Drill and exercise requirements.
105.225 Facility recordkeeping requirements.
105.230 Maritime Security (MARSEC) Level coordination and
implementation.
105.235 Communications.
105.240 Procedures for interfacing with vessels.
105.245 Declaration of Security (DoS).
105.250 Security systems and equipment maintenance.
105.255 Security measures for access control.
105.260 Security measures for restricted areas.
105.265 Security measures for handling cargo.
105.270 Security measures for delivery of vessel stores and bunkers.
105.275 Security measures for monitoring.
105.280 Security incident procedures.
105.285 Additional requirements--passenger and ferry facilities.
105.290 Additional requirements--cruise ship terminals.
105.295 Additional requirements--Certain Dangerous Cargo (CDC)
facilities.
105.296 Additional requirements--barge fleeting facilities.
Subpart C--Facility Security Assessment (FSA)
105.300 General.
105.305 Facility Security Assessment (FSA) requirements.
105.310 Submission requirements.
Subpart D--Facility Security Plan (FSP)
105.400 General.
105.405 Format and content of the Facility Security Plan (FSP).
105.410 Submission and approval.
105.415 Amendment and audit.
Appendix A to part 105--Facility Vulnerability and Security Measure
Summary (CG-6025).
Authority: 33 U.S.C. 1226, 1231; 46 U.S.C. 70103; 50 U.S.C. 191;
33 CFR 1.05-1,6.04-11, 6.14, 6.16, and 6.19; Department of Homeland
Security Delegation No. 0170.
Subpart A--General
Sec. 105.100 Definitions.
Except as specifically stated in this subpart, the definitions in
part 101 of this subchapter apply to this part.
[[Page 39323]]
Sec. 105.105 Applicability.
(a) The requirements in this part apply to the owner or operator of
any U.S.:
(1) Facility subject to 33 CFR parts 126, 127, or 154;
(2) Facility that receives vessels certificated to carry more than
150 passengers;
(3) Facility that receives vessels subject to the International
Convention for Safety of Life at Sea, 1974, or that are commercial
vessels subject to subchapter I of title 46, Code of Federal
Regulations, greater than 100 gross register tons on international
voyages, including vessels solely navigating the Great Lakes; or
(4) Fleeting facility that receives barges carrying, in bulk,
cargoes regulated by subchapters D and O of chapter I, title 46, Code
of Federal Regulations or Certain Dangerous Cargoes.
(b) An owner or operator of any facility not covered in paragraph
(a) of this section is subject to parts 101 through 103 of this
subchapter.
(c) This part does not apply to the owner or operator of the
following U.S. facilities:
(1) A facility owned and operated by the U.S. that is used
primarily for military purposes.
(2) An oil and natural gas production, exploration, or development
facility regulated by 33 CFR parts 126 or 154 if:
(i) The facility is engaged solely in the exploration, development,
or production of oil and natural gas; and
(ii) The facility does not meet or exceed the operating conditions
in Sec. 106.105 of this subchapter;
(3) A facility that supports the production, exploration, or
development of oil and natural gas regulated by 33 CFR parts 126 or 154
if:
(i) The facility is engaged solely in the support of exploration,
development, or production of oil and natural gas; and
(ii) The facility transports or stores quantities of hazardous
materials that do not meet and exceed those specified in 49 CFR
172.800(b)(1) through (6); or
(iii) The facility stores less than 42,000 gallons of cargo
regulated by 33 CFR part 154;
(4) A mobile facility regulated by 33 CFR part 154; or
(5) An isolated facility that receives materials regulated by 33
CFR parts 126 or 154 by vessel due to the lack of road access to the
facility and does not distribute the material through secondary marine
transfers.
Sec. 105.106 Public access areas.
(a) A facility serving ferries and passenger vessels certificated
to carry more than 150 passengers, other than cruise vessels, may
designate an area within the facility as a public access area.
(b) A public access area is a defined space within a facility that
is open to all persons and provides access through the facility from
public thoroughfares to the vessel.
Sec. 105.110 Exemptions.
(a) An owner or operator of any barge fleeting facility subject to
this part is exempt from complying with Sec. 105.265, Security
measures for handling cargo; and Sec. 105.270, Security measures for
delivery of vessel stores and bunkers.
(b) A public access area designated under Sec. 105.106 is exempt
from the requirements for screening and identification of persons in
Sec. 105.255(c), (e)(1), and (e)(3).
Sec. 105.115 Compliance dates.
(a) On or before December 29, 2003, each facility owner or operator
must submit to the cognizant COTP for each facility a Facility Security
Plan (FSP) described in subpart D of this part for review and approval.
(b) On or before June 30, 2004, each facility owner or operator
must be operating in compliance with this part.
Sec. 105.120 Compliance documentation.
Each facility owner or operator subject to this part must ensure,
no later than July 1, 2004, that copies of the following documentation
are available at the facility and are made available to the Coast Guard
upon request:
(a) The approved Facility Security Plan (FSP), as well as any
approved revisions or amendments thereto, and a letter of approval from
the COTP dated within the last 5 years;
(b) The FSP submitted for approval and an acknowledgement letter
from the COTP stating that the Coast Guard is currently reviewing the
FSP submitted for approval, and that the facility may continue to
operate so long as the facility remains in compliance with the
submitted FSP; or
(c) For facilities operating under a Coast Guard-approved
Alternative Security Program as provided in Sec. 105.140, a copy of
the Alternative Security Program the facility is using and a letter
signed by the facility owner or operator, stating which Alternative
Security Program the facility is using and certifying that the facility
is in full compliance with that program.
Sec. 105.125 Noncompliance.
When a facility is not in compliance with the requirements of this
part, the facility owner or operator must notify the cognizant COTP and
request a waiver to continue operations.
Sec. 105.130 Waivers.
Any facility owner or operator may apply for a waiver of any
requirement of this part that the facility owner or operator considers
unnecessary in light of the nature or operating conditions of the
facility, prior to operating. A request for a waiver must be submitted
in writing with justification to the Commandant (G-MP) at 2100 Second
St., SW., Washington, DC 20593. The Commandant (G-MP) may require the
facility owner or operator to provide data for use in determining the
validity of the requested waiver. The Commandant (G-MP) may grant, in
writing, a waiver with or without conditions only if the waiver will
not reduce the overall security of the facility, its employees,
visiting vessels, or ports. The Commandant (G-MP) may grant a waiver
with or without written conditions only if the waiver will not reduce
the overall security of the facility, its employees, visiting vessels,
or port.
Sec. 105.135 Equivalents.
For any measure required by this part, the facility owner or
operator may propose an equivalent as provided in Sec. 101.130 of this
subchapter.
Sec. 105.140 Alternative Security Program.
(a) A facility owner or operator may use an Alternative Security
Program approved under Sec. 101.120 of this subchapter if:
(1) The Alternative Security Program is appropriate to that
facility;
(2) The Alternative Security Program is implemented in its
entirety.
(b) A facility owner or operator using an Alternative Security
Program approved under Sec. 101.120 of this subchapter must complete
and submit to the cognizant COTP a Facility Vulnerability and Security
Measures Summary (Form CG-6025) in appendix A to part 105--Facility
Vulnerability and Security (CG-6025).
Sec. 105.145 Maritime Security (MARSEC) Directive.
Each facility owner or operator subject to this part must comply
with any instructions contained in a MARSEC Directive issued under
Sec. 101.405 of this subchapter.
Sec. 105.150 Right to appeal.
Any person directly affected by a decision or action taken under
this part, by or on behalf of the Coast Guard, may appeal as described
in Sec. 101.420 of this subchapter.
[[Page 39324]]
Subpart B--Facility Security Requirements
Sec. 105.200 Owner or operator.
(a) Each facility owner or operator must ensure that the facility
operates in compliance with the requirements of this part.
(b) For each facility, the facility owner or operator must:
(1) Define the security organizational structure and provide each
person exercising security duties and responsibilities within that
structure the support needed to fulfill those obligations;
(2) Designate, in writing, by name or by title, a Facility Security
Officer (FSO) and identify how the officer can be contacted at any
time;
(3) Ensure that a Facility Security Assessment (FSA) is conducted;
(4) Ensure the development and submission for approval of a
Facility Security Plan (FSP);
(5) Ensure that the facility operates in compliance with the
approved FSP;
(6) Ensure that adequate coordination of security issues takes
place between the facility and vessels that call on it, including the
execution of a Declaration of Security (DoS) as required by this part;
(7) Ensure coordination of shore leave for vessel personnel or crew
change-out, as well as access through the facility for visitors to the
vessel (including representatives of seafarers' welfare and labor
organizations), with vessel operators in advance of a vessel's arrival;
(8) Ensure, within 12 hours of notification of an increase in
MARSEC Level, implementation of the additional security measures
required for the new MARSEC Level; and
(9) Ensure the report of all breaches of security and security
incidents to the National Response Center in accordance with part 101
of this subchapter.
Sec. 105.205 Facility Security Officer (FSO).
(a) General. (1) The FSO may perform other duties within the
owner's or operator's organization, provided he or she is able to
perform the duties and responsibilities required of the FSO.
(2) The same person may serve as the FSO for more than one
facility, provided the facilities are in the same COTP zone and are not
more than 50 miles apart. If a person serves as the FSO for more than
one facility, the name of each facility for which he or she is the FSO
must be listed in the Facility Security Plan (FSP) of each facility for
which or she is the FSO.
(3) The FSO may assign security duties to other facility personnel;
however, the FSO retains the responsibility for these duties.
(b) Qualifications. (1) The FSO must have general knowledge,
through training or equivalent job experience, in the following:
(i) Security organization of the facility;
(ii) General vessel and facility operations and conditions;
(iii) Vessel and facility security measures, including the meaning
and the requirements of the different MARSEC Levels;
(iv) Emergency preparedness, response, and contingency planning;
(v) Security equipment and systems, and their operational
limitations; and
(vi) Methods of conducting audits, inspections, control, and
monitoring techniques.
(2) In addition to knowledge and training required in paragraph
(b)(1) of this section, the FSO must have knowledge of and receive
training in the following, as appropriate:
(i) Relevant international laws and codes, and recommendations;
(ii) Relevant government legislation and regulations;
(iii) Responsibilities and functions of local, State, and Federal
law enforcement agencies;
(iv) Risk assessment methodology;
(v) Methods of facility security surveys and inspections;
(vi) Instruction techniques for security training and education,
including security measures and procedures;
(vii) Handling sensitive security information and security related
communications;
(viii) Current security threats and patterns;
(ix) Recognizing and detecting dangerous substances and devices;
(x) Recognizing characteristics and behavioral patterns of persons
who are likely to threaten security;
(xi) Techniques used to circumvent security measures;
(xii) Conducting physical searches and non-intrusive inspections;
(xiii) Conducting security drills and exercises, including
exercises with vessels; and
(xiv) Assessing security drills and exercises.
(c) Responsibilities. In addition to those responsibilities and
duties specified elsewhere in this part, the FSO must, for each
facility for which he or she has been designated:
(1) Ensure that the Facility Security Assessment (FSA) is
conducted;
(2) Ensure the development and implementation of a FSP;
(3) Ensure that an annual audit is conducted, and if necessary if
the FSA and FSP are updated;
(4) Ensure the FSP is exercised per Sec. 105.220 of this part;
(5) Ensure that regular security inspections of the facility are
conducted;
(6) Ensure the security awareness and vigilance of the facility
personnel;
(7) Ensure adequate training to personnel performing facility
security duties;
(8) Ensure that occurrences that threaten the security of the
facility are recorded and reported to the owner or operator;
(9) Ensure the maintenance of records required by this part;
(10) Ensure the preparation and the submission of any reports as
required by this part;
(11) Ensure the execution of any required Declarations of Security
with Vessel Security Officers;
(12) Ensure the coordination of security services in accordance
with the approved FSP;
(13) Ensure that security equipment is properly operated, tested,
calibrated, and maintained;
(14) Ensure the recording and reporting of attainment changes in
MARSEC Levels to the owner or operator and the cognizant COTP;
(15) When requested, ensure that the Vessel Security Officers
receive assistance in confirming the identity of visitors and service
providers seeking to board the vessel through the facility;
(16) Ensure notification, as soon as possible, to law enforcement
personnel and other emergency responders to permit a timely response to
any transportation security incident;
(17) Ensure that the FSP is submitted to the cognizant COTP for
approval, as well as any plans to change the facility or facility
infrastructure prior to amending the FSP; and
(18) Ensure that all facility personnel are briefed of changes in
security conditions at the facility.
Sec. 105.210 Facility personnel with security duties.
Facility personnel responsible for security duties must have
knowledge, through training or equivalent job experience, in the
following, as appropriate:
(a) Knowledge of current security threats and patterns;
(b) Recognition and detection of dangerous substances and devices;
(c) Recognition of characteristics and behavioral patterns of
persons who are likely to threaten security;
(d) Techniques used to circumvent security measures;
(e) Crowd management and control techniques;
[[Page 39325]]
(f) Security related communications;
(g) Knowledge of emergency procedures and contingency plans;
(h) Operation of security equipment and systems;
(i) Testing, calibration, and maintenance of security equipment and
systems;
(j) Inspection, control, and monitoring techniques;
(k) Relevant provisions of the Facility Security Plan (FSP);
(l) Methods of physical screening of persons, personal effects,
baggage, cargo, and vessel stores; and
(m) The meaning and the consequential requirements of the different
MARSEC Levels.
Sec. 105.215 Security training for all other facility personnel.
All other facility personnel, including contractors, whether part-
time, full-time, temporary, or permanent, must have knowledge of,
through training or equivalent job experience, in the following:
(a) Relevant provisions of the Facility Security Plan (FSP);
(b) The meaning and the consequential requirements of the different
MARSEC Levels as they apply to them, including emergency procedures and
contingency plans;
(c) Recognition and detection of dangerous substances and devices;
(d) Recognition of characteristics and behavioral patterns of
persons who are likely to threaten security; and
(e) Techniques used to circumvent security measures.
Sec. 105.220 Drill and exercise requirements.
(a) General. Drills and exercises must test the proficiency of
facility personnel in assigned security duties at all MARSEC Levels and
the effective implementation of the Facility Security Plan (FSP). They
must enable the Facility Security Officer (FSO) to identify any related
security deficiencies that need to be addressed.
(b) Drills.--(1) The FSO must ensure that at least one security
drill is conducted every 3 months. Security drills may be held in
conjunction with non-security drills, where appropriate.
(2) Drills must test individual elements of the FSP, including
response to security threats and incidents. Drills should take into
account the types of operations of the facility, facility personnel
changes, the type of vessel the facility is serving, and other relevant
circumstances. Examples of drills include unauthorized entry to a
restricted area, response to alarms, and notification of law
enforcement authorities.
(3) If a vessel is moored at the facility on the date the facility
has planned to conduct any drills, the facility cannot require the
vessel or vessel personnel to be a part of or participate in the
facility's scheduled drill.
(c) Exercises.--(1) Exercises must be conducted at least once each
calendar year, with no more than 18 months between exercises.
(2) Exercises may be:
(i) Full scale or live;
(ii) Tabletop simulation or seminar;
(iii) Combined with other appropriate exercises; or
(iv) A combination of the elements in paragraphs (c)(2)(i) through
(iii) of this section.
(3) Exercises may be facility-specific or part of a cooperative
exercise program with applicable facility and vessel security plans or
comprehensive port exercises.
(4) Each exercise must test communication and notification
procedures, and elements of coordination, resource availability, and
response.
(5) Exercises are a full test of the security program and must
include substantial and active participation of FSOs, and may include
government authorities and vessels visiting the facility. Requests for
participation of Company and Vessel Security Officers in joint
exercises should consider the security and work implications for the
vessel.
Sec. 105.225 Facility recordkeeping requirements.
(a) Unless otherwise specified in this section, the Facility
Security Officer (FSO) must keep records of the activities as set out
in paragraph (b) of this section for at least 2 years and make them
available to the Coast Guard upon request.
(b) Records required by this section may be kept in electronic
format. If kept in an electronic format, they must be protected against
unauthorized deletion, destruction, or amendment. The following records
must be kept:
(1) Training. For each security training session, the date of each
session, duration of session, a description of the training, and a list
of attendees;
(2) Drills and exercises. For each drill or exercise, the date
held, description of drill or exercise, list of participants, and any
best practices or lessons learned which may improve the Facility
Security Plan (FSP);
(3) Incidents and breaches of security. For each incident or breach
of security, the date and time of occurrence, location within the
facility, description of incident or breaches, to whom it was reported,
and description of the response;
(4) Changes in MARSEC Levels. For each change in MARSEC Level, the
date and time of notification received, and time of compliance with
additional requirements;
(5) Maintenance, calibration, and testing of security equipment.
For each occurrence of maintenance, calibration, and testing, record
the date and time, and the specific security equipment involved;
(6) Security threats. For each security threat, the date and time
of occurrence, how the threat was communicated, who received or
identified the threat, description of threat, to whom it was reported,
and description of the response;
(7) Declaration of Security (DoS) A copy of each single-visit DoS
and a copy of each continuing DoS for at least 90 days after the end of
its effective period; and
(8) Annual audit of the FSP. For each annual audit, a letter
certified by the FSO stating the date the audit was completed.
(c) Any record required by this part must be protected from
unauthorized access or disclosure.
Sec. 105.230 Maritime Security (MARSEC) Level coordination and
implementation.
(a) The facility owner or operator must ensure the facility
operates in compliance with the security requirements in this part for
the MARSEC Level in effect for the port.
(b) When notified of an increase in the MARSEC Level, the facility
owner and operator must ensure:
(1) Vessels moored to the facility and vessels scheduled to arrive
at the facility within 96 hours of the MARSEC Level change are notified
of the new MARSEC Level and the Declaration of Security is revised as
necessary;
(2) The facility complies with the required additional security
measures within 12 hours; and
(3) The facility reports compliance or noncompliance to the COTP.
(c) For MARSEC Levels 2 and 3, the Facility Security Officer must
inform all facility personnel about identified threats, and emphasize
reporting procedures and stress the need for increased vigilance.
(d) An owner or operator whose facility is not in compliance with
the requirements of this section, must inform the COTP and obtain
approval prior to interfacing with a vessel or continuing operations.
(e) At MARSEC Level 3, in addition to the requirements in this
part, a
[[Page 39326]]
facility owner or operator may be required to implement additional
measures, pursuant to 33 CFR part 6, 160, or 165, as appropriate, which
may include but are not limited to:
(1) Use of waterborne security patrol;
(2) Use of armed security personnel to control access to the
facility and to deter, to the maximum extent practical, a
transportation security incident; and
(3) Examination of piers, wharves, and similar structures at the
facility for the presence of dangerous substances or devices underwater
or other threats.
Sec. 105.235 Communications.
(a) The Facility Security Officer must have a means to effectively
notify facility personnel of changes in security conditions at the
facility.
(b) Communication systems and procedures must allow effective and
continuous communications between the facility security personnel,
vessels interfacing with the facility, the cognizant COTP, and national
and local authorities with security responsibilities.
(c) At each active facility access point, provide a means of
contacting police, security control, or an emergency operations center,
by telephones, cellular phones, and/or portable radios, or other
equivalent means.
(d) Facility communications systems must have a backup means for
both internal and external communications.
Sec. 105.240 Procedures for interfacing with vessels.
The facility owner or operator must ensure that there are measures
for interfacing with vessels at all MARSEC Levels.
Sec. 105.245 Declaration of Security (DoS).
(a) Each facility owner or operator must ensure procedures are
established for requesting a DoS and for handling DoS requests from a
vessel.
(b) At MARSEC Level 1, a facility receiving a cruise ship or a
manned vessel carrying Certain Dangerous Cargo, in bulk, must comply
with the following:
(1) Prior to the arrival of a vessel to the facility, the Facility
Security Officer (FSO) and Master, Vessel Security Officer (VSO), or
their designated representatives must coordinate security needs and
procedures, and agree upon the contents of the DoS for the period of
time the vessel is at the facility; and
(2) Upon the arrival of the vessel at the facility, the FSO and
Master, VSO, or their designated representative, must sign the written
DoS.
(c) Neither the facility nor the vessel may embark or disembark
passengers, nor transfer cargo or vessel stores until the DoS has been
signed and implemented.
(d) At MARSEC Levels 2 and 3, the FSOs of facilities interfacing
with manned vessels subject to part 104 of this subchapter must sign
and implement DoSs.
(e) At MARSEC Levels 1 and 2, FSOs of facilities that frequently
interface with the same vessel may implement a continuing DoS for
multiple visits, provided that:
(1) The DoS is valid for a specific MARSEC Level;
(2) The effective period at MARSEC Level 1 does not exceed 90 days;
and
(3) The effective period at MARSEC Level 2 does not exceed 30 days.
(f) When the MARSEC Level increases beyond that contained in the
DoS, the continuing DoS is void and a new DoS must be executed in
accordance with this section.
(g) A copy of all currently valid continuing DoSs must be kept with
the Facility Security Plan.
(h) The COTP may require, at any time, at any MARSEC Level, any
facility subject to this part to implement a DoS with the VSO prior to
any vessel-to-facility interface when he or she deems it necessary.
Sec. 105.250 Security systems and equipment maintenance.
(a) Security systems and equipment must be in good working order
and inspected, tested, calibrated, and maintained according to
manufacturers' recommendations.
(b) Security systems must be regularly tested in accordance with
the manufacturers' recommendations; noted deficiencies corrected
promptly; and the results recorded as required in Sec. 105.225 of this
subpart.
(c) The FSP must include procedures for identifying and responding
to security system and equipment failures or malfunctions.
Sec. 105.255 Security measures for access control.
(a) General. The facility owner or operator must ensure the
implementation of security measures to:
(1) Deter the unauthorized introduction of dangerous substances and
devices, including any device intended to damage or destroy persons,
vessels, facilities, or ports;
(2) Secure dangerous substances and devices that are authorized by
the owner or operator to be on the facility; and
(3) Control access to the facility.
(b) The facility owner or operator must ensure that:
(1) The locations where restrictions or prohibitions that prevent
unauthorized access are applied for each MARSEC Level. Each location
allowing means of access to the facility must be addressed;
(2) The identification of the type of restriction or prohibition to
be applied and the means of enforcing them;
(3) The means of identification required to allow access to the
facility and for individuals and vehicles to remain on the facility
without challenge are established; and
(4) The identification of the locations where persons, personal
effects and vehicle screenings are to be conducted. The designated
screening areas should be covered to provide for continuous operations
regardless of the weather conditions.
(c) The facility owner or operator must ensure that an
identification system is established for checking the identification of
facility personnel or other persons seeking access to the facility
that:
(1) Allows identification of authorized and unauthorized persons at
any MARSEC Level;
(2) Is coordinated, when practicable, with identification systems
of vessels that use the facility;
(3) Is updated regularly;
(4) Uses disciplinary measures to discourage abuse;
(5) Allows temporary or continuing access for facility personnel
and visitors, including seafarers' chaplains and union representatives,
through the use of a badge or other system to verify their identity;
and
(6) Allows certain long-term, frequent vendor representatives to be
treated more as employees than as visitors.
(d) The facility owner or operator must establish in the approved
Facility Security Plan (FSP) the frequency of application of any access
controls, particularly if they are to be applied on a random or
occasional basis.
(e) MARSEC Level 1. The facility owner or operator must ensure the
following security measures are implemented at the facility:
(1) Screen persons, baggage (including carry-on items), personal
effects, and vehicles, including delivery vehicles for dangerous
substances and devices at the rate specified in the approved FSP;
(2) Conspicuously post signs that describe security measures
currently in effect and clearly state that:
(i) Entering the facility is deemed valid consent to screening or
inspection; and
(ii) Failure to consent or submit to screening or inspection will
result in denial or revocation of authorization to enter;
(3) Check the identification of any person seeking to enter the
facility,
[[Page 39327]]
including vessel passengers and crew, facility employees, vendors,
personnel duly authorized by the cognizant authority, and visitors.
This check includes confirming the reason for entry by examining at
least one of the following:
(i) Joining instructions;
(ii) Passenger tickets;
(iii) Boarding passes;
(iv) Work orders, pilot orders, or surveyor orders;
(v) Government identification; or
(vi) Visitor badges issued in accordance with an identification
system required in paragraph (c) of this section;
(4) Deny or revoke a person's authorization to be on the facility
if the person is unable or unwilling, upon the request of facility
personnel, to establish his or her identity or to account for his or
her presence. Any such incident must be reported in compliance with
this part;
(5) Designate restricted areas and provide appropriate access
controls for these areas;
(6) Identify access points that must be secured or attended to
deter unauthorized access;
(7) Deter unauthorized access to the facility and to designated
restricted areas within the facility;
(8) Screen by hand or device, such as x-ray, all unaccompanied
baggage prior to loading onto a vessel; and
(9) Secure unaccompanied baggage after screening in a designated
restricted area and maintain security control during transfers between
the facility and a vessel.
(f) MARSEC Level 2. In addition to the security measures required
for MARSEC Level 1 in this section, at MARSEC Level 2, the facility
owner or operator must also ensure the implementation of additional
security measures, as specified for MARSEC Level 2 in their approved
FSP. These additional security measures may include:
(1) Increasing the frequency and detail of the screening of
persons, baggage, and personal effects for dangerous substances and
devices entering the facility;
(2) X-ray screening of all unaccompanied baggage;
(3) Assigning additional personnel to guard access points and
patrol the perimeter of the facility to deter unauthorized access;
(4) Limiting the number of access points to the facility by closing
and securing some access points and providing physical barriers to
impede movement through the remaining access points;
(5) Denying access to visitors who do not have a verified
destination;
(6) Deterring waterside access to the facility, which may include,
using waterborne patrols to enhance security around the facility; or
(7) Screening vehicles and their contents for dangerous substances
and devices at the rate specified for MARSEC Level 2 in the approved
FSP.
(g) MARSEC Level 3. In addition to the security measures required
for MARSEC Level 1 and MARSEC Level 2, the facility owner or operator
must ensure the implementation of additional security measures, as
specified for MARSEC Level 3 in their approved FSP. These additional
security measures may include:
(1) Screening all persons, baggage, and personal effects for
dangerous substances and devices;
(2) Performing one or more of the following on unaccompanied
baggage:
(i) Screen unaccompanied baggage more extensively; for example, x-
raying from two or more angles;
(ii) Prepare to restrict or suspend handling unaccompanied baggage;
or
(iii) Refuse to accept unaccompanied baggage;
(3) Being prepared to cooperate with responders and facilities;
(4) Granting access to only those responding to the security
incident or threat thereof;
(5) Suspending access to the facility;
(6) Suspending cargo operations;
(7) Evacuating the facility;
(8) Restricting pedestrian or vehicular movement on the grounds of
the facility; or
(9) Increasing security patrols within the facility.
Sec. 105.260 Security measures for restricted areas.
(a) General. The facility owner or operator must ensure the
designation of restricted areas in order to:
(1) Prevent or deter unauthorized access;
(2) Protect persons authorized to be in the facility;
(3) Protect the facility;
(4) Protect vessels using and serving the facility;
(5) Protect sensitive security areas within the facility;
(6) Protect security and surveillance equipment and systems; and
(7) Protect cargo and vessel stores from tampering.
(b) Designation of Restricted Areas. The facility owner or operator
must ensure restricted areas are designated within the facility. They
must also ensure that all restricted areas are clearly marked and
indicate that access to the area is restricted and that unauthorized
presence within the area constitutes a breach of security. The facility
owner or operator may also designate the entire facility as a
restricted area. Restricted areas must include, as appropriate:
(1) Shore areas immediately adjacent to each vessel moored at the
facility;
(2) Areas containing sensitive security information, including
cargo documentation;
(3) Areas containing security and surveillance equipment and
systems and their controls, and lighting system controls; and
(4) Areas containing critical facility infrastructure, including:
(i) Water supplies;
(ii) Telecommunications;
(iii) Electrical system; and
(iv) Access points for ventilation and air-conditioning systems;
(5) Manufacturing or processing areas and control rooms;
(6) Locations in the facility where access by vehicles and
personnel should be restricted;
(7) Areas designated for loading, unloading or storage of cargo and
stores; and
(8) Areas containing cargo consisting of dangerous goods or
hazardous substances, including certain dangerous cargoes.
(c) The owner or operator must ensure that all restricted areas
have clearly established security measures to:
(1) Identify which facility personnel are authorized to have
access;
(2) Determine which persons other than facility personnel are
authorized to have access;
(3) Determine the conditions under which that access may take
place;
(4) Define the extent of any restricted area;
(5) Define the times when access restrictions apply;
(6) Clearly mark all restricted areas and indicate that access to
the area is restricted and that unauthorized presence within the area
constitutes a breach of security;
(7) Control the entry, parking, loading and unloading of vehicles;
(8) Control the movement and storage of cargo and vessel stores;
and
(9) Control unaccompanied baggage or personal effects.
(d) MARSEC Level 1. At MARSEC Level 1, the facility owner or
operator must ensure the implementation of security measures to prevent
unauthorized access or activities within the area. These security
measures may include:
(1) Restricting access to only authorized personnel;
(2) Securing all access points not actively used and providing
physical
[[Page 39328]]
barriers to impede movement through the remaining access points;
(3) Assigning personnel to control access to restricted areas;
(4) Verifying the identification and authorization of all persons
and all vehicles seeking entry;
(5) Patrolling or monitoring the perimeter of restricted areas;
(6) Using security personnel, automatic intrusion detection
devices, surveillance equipment, or surveillance systems to detect
unauthorized entry or movement within restricted areas;
(7) Directing the parking, loading, and unloading of vehicles
within a restricted area;
(8) Controlling unaccompanied baggage and or personal effects after
screening;
(9) Designating restricted areas for performing inspections of
cargo and vessel stores while awaiting loading; and
(10) Designating temporary restricted areas to accommodate facility
operations. If temporary restricted areas are designated, the FSP must
include a requirement to conduct a security sweep of the designated
temporary restricted area both before and after the area has been
established.
(e) MARSEC Level 2. In addition to the security measures required
for MARSEC Level 1 in this section, at MARSEC Level 2, the facility
owner or operator must also ensure the implementation of additional
security measures, as specified for MARSEC Level 2 in their approved
FSP. These additional security measures may include:
(1) Increasing the intensity and frequency of monitoring and access
controls on existing restricted access areas;
(2) Enhancing the effectiveness of the barriers or fencing
surrounding restricted areas, by the use of patrols or automatic
intrusion detection devices;
(3) Reducing the number of access points to restricted areas, and
enhancing the controls applied at the remaining accesses;
(4) Restricting parking adjacent to vessels;
(5) Further restricting access to the restricted areas and
movements and storage within them;
(6) Using continuously monitored and recorded surveillance
equipment;
(7) Enhancing the number and frequency of patrols, including
waterborne patrols undertaken on the boundaries of the restricted areas
and within the areas; or
(8) Establishing and restricting access to areas adjacent to the
restricted areas.
(f) MARSEC Level 3. In addition to the security measures required
for MARSEC Level 1 and MARSEC Level 2, at MARSEC Level 3, the facility
owner or operator must ensure the implementation of additional security
measures, as specified for MARSEC Level 3 in their approved FSP. These
additional security measures may include:
(1) Restricting access to additional areas;
(2) Prohibiting access to restricted areas, or
(3) Searching restricted areas as part of a security sweep of all
or part of the facility.
Sec. 105.265 Security measures for handling cargo.
(a) General. The facility owner or operator must ensure that
security measures relating to cargo handling, some of which may have to
be applied in liaison with the vessel, are implemented in order to:
(1) Deter tampering;
(2) Prevent cargo that is not meant for carriage from being
accepted and stored at the facility;
(3) Identify cargo that is approved for loading onto vessels
interfacing with the facility;
(4) Include cargo control procedures at access points to the
facility;
(5) Identify cargo that is accepted for temporary storage in a
restricted area while awaiting loading or pick up;
(6) Restrict the entry of cargo to the facility that does not have
a confirmed date for loading, as appropriate;
(7) Ensure the release of cargo only to the carrier specified in
the cargo documentation;
(8) Coordinate security measures with the shipper or other
responsible party in accordance with an established agreement and
procedures;
(9) Create, update, and maintain a continuous inventory, including
location, of all dangerous goods or hazardous substances from receipt
to delivery within the facility, giving the location of those dangerous
goods or hazardous substances; and
(10) Be able to check cargo entering the facility for dangerous
substances and devices at the rate specified in the approved Facility
Security Plan (FSP). Means to check cargo include:
(i) Visual examination;
(ii) Physical examination;
(iii) Detection devices, such as scanners; or
(iv) Canines.
(b) MARSEC Level 1. At MARSEC Level 1, the facility owner or
operator must ensure the implementation of measures to:
(1) Routinely check cargo, cargo transport units, and cargo storage
areas within the facility prior to, and during, cargo handling
operations to deter tampering;
(2) Check that cargo, containers, or other cargo transport units
entering the facility match the delivery note or equivalent cargo
documentation;
(3) Screen vehicles; and
(4) Check seals and other methods used to prevent tampering upon
entering the facility and upon storage within the facility.
(c) MARSEC Level 2. In addition to the security measures required
for MARSEC Level 1 in this section, at MARSEC Level 2, the facility
owner or operator must also ensure the implementation of additional
security measures, as specified for MARSEC Level 2 in the approved FSP.
These additional security measures may include:
(1) Conducting check of cargo, containers or other cargo transport
units, and cargo storage areas within the port facility for dangerous
substances and devices to the facility and vessel;
(2) Intensifying checks, as appropriate, to ensure that only the
documented cargo enters the facility, is temporarily stored there, and
then loaded onto the vessel;
(3) Intensifying the screening of vehicles;
(4) Increasing frequency and detail in checking of seals and other
methods used to prevent tampering;
(5) Segregating inbound cargo, outbound cargo, and vessel stores;
(6) Increasing the frequency and intensity of visual and physical
inspections; or
(7) Limiting the number of locations where dangerous goods and
hazardous substances, including certain dangerous cargoes, can be
stored.
(d) MARSEC Level 3. In addition to the security measures required
for MARSEC Level 1 and MARSEC Level 2, at MARSEC Level 3, the facility
owner or operator must ensure the implementation of additional security
measures, as specified for MARSEC Level 3 in the approved FSP. These
additional security measures may include:
(1) Restricting or suspending cargo movements or operations within
all or part of the facility or specific vessels;
(2) Being prepared to cooperate with responders and vessels; or
(3) Verifying the inventory and location of any dangerous goods and
hazardous substances, including certain dangerous cargoes, held within
the facility and their location.
Sec. 105.270 Security measures for delivery of vessel stores and
bunkers.
(a) General. The facility owner or operator must ensure that
security
[[Page 39329]]
measures relating to the delivery of vessel stores and bunkers are
implemented to:
(1) Check vessel stores for package integrity;
(2) Prevent vessel stores from being accepted without inspection;
(3) Deter tampering;
(4) For vessels that routinely use a facility, establish and
execute standing arrangements between the vessel, its suppliers, and a
facility regarding notification and the timing of deliveries and their
documentation; and
(5) Check vessel stores by the following means:
(i) Visual examination;
(ii) Physical examination;
(iii) Detection devices, such as scanners; or
(iv) Canines.
(b) MARSEC Level 1. At MARSEC Level 1, the facility owner or
operator must ensure the implementation of measures to:
(1) Screen vessel stores at the rate specified in the approved
Facility Security Plan (FSP);
(2) Require advance notification of vessel stores or bunkers
delivery, including a list of stores, delivery vehicle driver
information, and vehicle registration information;
(3) Screen delivery vehicles at the frequencies specified in the
approved FSP; and
(4) Escort delivery vehicles within the facility at the rate
specified by the approved FSP.
(c) MARSEC Level 2. In addition to the security measures required
for MARSEC Level 1 in this section, at MARSEC Level 2, the facility
owner or operator must also ensure the implementation of additional
security measures, as specified for MARSEC Level 2 in the approved FSP.
These additional security measures may include:
(1) Detailed screening of vessel stores;
(2) Detailed screening of all delivery vehicles;
(3) Coordinating with vessel personnel to check the order against
the delivery note prior to entry to the facility;
(4) Ensuring delivery vehicles are escorted within the facility; or
(5) Restricting or prohibiting the entry of vessel stores that will
not leave the facility within a specified period.
(d) MARSEC Level 3. In addition to the security measures for MARSEC
Level 1 and MARSEC Level 2, at MARSEC Level 3, the facility owner and
operator must ensure implementation of additional security measures, as
specified for MARSEC Level 3 in the approved FSP. Examples of these
additional security measures may include:
(1) Checking all vessel stores more extensively;
(2) Restricting or suspending delivery of vessel stores; or
(3) Refusing to accept vessel stores on the facility.
Sec. 105.275 Security measures for monitoring.
(a) General. The facility owner or operator must ensure the
implementation of security measures in this section and have the
capability to continuously monitor, through a combination of lighting,
security guards, waterborne patrols, and automatic intrusion-detection
devices, or surveillance equipment, as specified in the approved
Facility Security Plan (FSP), the:
(1) Facility and its approaches, on land and water;
(2) Restricted areas within the facility; and
(3) Vessels at the facility and areas surrounding the vessels.
(b) MARSEC Level 1. At MARSEC Level 1, the facility owner or
operator must ensure the security measures in this section are
implemented at all times, including the period from sunset to sunrise
and periods of limited visibility. For each facility, ensure monitoring
capability that:
(1) When automatic intrusion-detection devices are used, activates
an audible or visual alarm, or both, at a location that is continuously
attended or monitored;
(2) Is able to function continually, including consideration of the
possible effects of weather or of a power disruption;
(3) Monitors the facility area, including shore and waterside
access to it;
(4) Monitors access points, barriers and restricted areas;
(5) Monitors access and movements adjacent to vessels using the
facility, including augmentation of lighting provided by the vessel
itself; and
(6) Limits lighting effects, such as glare, and their impact on
safety, navigation, and other security activities.
(c) MARSEC Level 2. In addition to the security measures for MARSEC
Level 1 in this section, at MARSEC Level 2, the facility owner or
operator must also ensure the implementation of additional security
measures, as specified for MARSEC Level 2 in the approved FSP. These
additional measures may include:
(1) Increasing the coverage and intensity of surveillance
equipment, including the provision of additional surveillance coverage;
(2) Increasing the frequency of foot, vehicle or waterborne
patrols;
(3) Assigning additional security personnel to monitor and patrol;
or
(4) Increasing the coverage and intensity of lighting, including
the provision of additional lighting and coverage.
(d) MARSEC Level 3. In addition to the security measures for MARSEC
Level 1 and MARSEC Level 2, at MARSEC Level 3, the facility owner or
operator must also ensure implementation of additional security
measures, as specified for MARSEC Level 3 in the approved FSP. These
additional security measures may include:
(1) Switching on all lighting within, or illuminating the vicinity
of, the facility;
(2) Switching on all surveillance equipment capable of recording
activities within or adjacent to the facility;
(3) Maximizing the length of time such surveillance equipment can
continue to record; or
(4) Complying with the instructions issued by those responding to
the security incident.
Sec. 105.280 Security incident procedures.
For each MARSEC Level, the facility owner or operator must ensure
the Facility Security Officer and facility security personnel are able
to:
(a) Respond to security threats or breaches of security and
maintain critical facility and vessel-to-facility interface operations;
(b) Evacuate the facility in case of security threats or breaches
of security;
(c) Report security incidents as required in Sec. 101.305 of this
subchapter;
(d) Brief all facility personnel on possible threats and the need
for vigilance, soliciting their assistance in reporting suspicious
persons, objects, or activities; and
(e) Secure non-critical operations in order to focus response on
critical operations.
Sec. 105.285 Additional requirements-passenger and ferry facilities.
(a) At MARSEC Level 1, the owner or operator of a passenger or
ferry facility must ensure, in coordination with a vessel moored at the
facility, that the following security measures are implemented in
addition to the requirements of this part:
(1) In a facility with no public access area designated under Sec.
105.106, establish separate areas to segregate unchecked persons and
personal effects from checked persons and personal effects;
(2) Ensure that a defined percentage of vehicles to be loaded
aboard are
[[Page 39330]]
screened prior to loading, in accordance with a MARSEC Directive or
other orders issued by the Coast Guard;
(3) Ensure that all unaccompanied vehicles to be loaded on
passenger vessels are screened prior to loading;
(4) Deny passenger access to restricted areas unless supervised by
facility security personnel; and
(5) In a facility with a public access area designated under Sec.
105.106, provide sufficient security personnel to monitor all persons
within the area and conduct screening of persons and personal effects,
as needed.
(b) At MARSEC Level 2, in addition to the requirements for MARSEC
Level 1, the owner or operator of a passenger or ferry facility with no
public access area designated under Sec. 105.106 must ensure screening
of additional passengers, baggage, and vehicles prior to boarding the
vessel as specified in the approved FSP and Declaration of Security.
(c) At MARSEC Level 3, in addition to the requirements for MARSEC
Level 1 and MARSEC Level 2 and in coordination with the vessel moored
at the facility, the owner or operator of a passenger or ferry facility
with no public access area designated under Sec. 105.106 must ensure
the following security measures:
(1) Screen and identify all persons;
(2) Screen all baggage; and
(3) Assign additional security personnel and patrols.
Sec. 105.290 Additional requirements-cruise ship terminals.
At all MARSEC Levels, in coordination with a vessel moored at the
facility, the facility owner or operator must ensure the following
security measures:
(a) Screen all persons, baggage, and personal effects for dangerous
substances and devices;
(b) Check the identification of all persons seeking to board the
vessel. This includes confirming the reason for boarding by examining
joining instructions, passenger tickets, boarding passes, government
identification or visitor badges, or work orders;
(c) Designate holding, waiting, or embarkation areas to segregate
screened persons and their personal effects awaiting embarkation from
unscreened persons and their personal effects;
(d) Provide additional security personnel to designated holding,
waiting, or embarkation areas; and
(e) Deny passenger access to restricted areas unless supervised by
facility security personnel.
Sec. 105.295 Additional requirements-Certain Dangerous Cargo (CDC)
facilities.
(a) At all MARSEC Levels, owners or operators of CDC facilities
must ensure the implementation of the following security measures in
addition to the requirements of this part:
(1) Escort all visitors, contractors, vendors, and other non-
facility employees at all times while on the facility, if access
identification is not provided. Escort provisions do not apply to
prearranged cargo deliveries;
(2) Control the parking, loading, and unloading of vehicles within
a facility;
(3) Require security personnel to record or report their presence
at key points during their patrols;
(4) Search unmanned or unmonitored waterfront areas for dangerous
substances and devices prior to a vessel's arrival at the facility; and
(5) Provide an alternate or independent power source for security
and communications systems.
(b) At MARSEC Level 2, in addition to the requirements for MARSEC
Level 1, owners or operators of CDC facilities must ensure the
implementation of the following security measures:
(1) Release cargo only in the presence of the Facility Security
Officer (FSO) or a designated representative of the FSO; and
(2) Continuously guard or patrol restricted areas.
(c) At MARSEC Level 3, in addition to the requirements for MARSEC
Level 1 and MARSEC Level 2, owners or operators of CDC facilities must
ensure the facilities are continuously guarded and restricted areas are
patrolled.
Sec. 105.296 Additional requirements-barge fleeting facilities.
(a) At MARSEC Level 1, in addition to the requirements of this
part, an owner or operator of a barge fleeting facility must ensure the
implementation of the following security measures:
(1) Designate an area within the fleeting facility to segregate
those barges carrying Certain Dangerous Cargoes and cargoes listed in
46 CFR, subchapters D and O of chapter I, title 46, Code of Federal
Regulations or Certain Dangerous Cargoes from all other barges in the
fleeting facility;
(2) Maintain a current list of vessels and cargoes in the
designated restricted area; and
(3) Ensure that at least one towing vessel is available to service
the fleeting facility for every 100 barges within the facility.
(b) At MARSEC Level 2, in addition to the requirements of this part
and MARSEC Level 1 requirements, an owner or operator of a barge
fleeting facility must ensure security personnel are assigned to
monitor or patrol the designated restricted area within the barge
fleeting facility.
(c) At MARSEC Level 3, in addition to the requirements of this part
and MARSEC Level 2 requirements, an owner or operator of a barge
fleeting facility must ensure that both land and waterside perimeters
of the designated restricted area within the barge fleeting facility
are continuously monitored or patrolled.
Subpart C--Facility Security Assessment (FSA)
Sec. 105.300 General.
(a) The Facility Security Assessment (FSA) is a written document
that is based on the collection of background information, the
completion of an on-scene survey and an analysis of that information.
(b) A common FSA may be conducted for more than one similar
facility provided the FSA reflects any facility-specific
characteristics that are unique.
(c) Third parties may be used in any aspect of the FSA if they have
the appropriate skills and if the Facility Security Officer (FSO)
reviews and accepts their work.
(d) Those involved in a FSA must be able to draw upon expert
assistance in the following areas, as appropriate:
(1) Knowledge of current security threats and patterns;
(2) Recognition and detection of dangerous substances and devices;
(3) Recognition of characteristics and behavioral patterns of
persons who are likely to threaten security;
(4) Techniques used to circumvent security measures;
(5) Methods used to cause a security incident;
(6) Effects of dangerous substances and devices on structures and
facility services;
(7) Facility security requirements;
(8) Facility and vessel interface business practices;
(9) Contingency planning, emergency preparedness, and response;
(10) Physical security requirements;
(11) Radio and telecommunications systems, including computer
systems and networks;
(12) Marine or civil engineering; and
(13) Facility and vessel operations.
Sec. 105.305 Facility Security Assessment (FSA) requirements.
(a) Background. The facility owner or operator must ensure that the
following background information, if applicable, is provided to the
person or persons who will conduct the assessment:
[[Page 39331]]
(1) The general layout of the facility, including:
(i) The location of each active and inactive access point to the
facility;
(ii) The number, reliability, and security duties of facility
personnel;
(iii) Security doors, barriers, and lighting;
(iv) The location of restricted areas;
(v) The emergency and stand-by equipment available to maintain
essential services;
(vi) The maintenance equipment, cargo spaces, storage areas, and
unaccompanied baggage storage;
(vii) Location of escape and evacuation routes and assembly
stations; and
(viii) Existing security and safety equipment for protection of
personnel and visitors;
(2) Response procedures for fire or other emergency conditions;
(3) Procedures for monitoring facility and vessel personnel,
vendors, repair technicians, and dock workers;
(4) Existing contracts with private security companies and existing
agreements with local or municipal agencies;
(5) Procedures for controlling keys and other access prevention
systems;
(6) Procedures for cargo and vessel stores operations;
(7) Response capability to security incidents;
(8) Threat assessments, including the purpose and methodology of
the assessment, for the port in which the facility is located or at
which passengers embark or disembark;
(9) Previous reports on security needs; and
(10) Any other existing security procedures and systems, equipment,
communications, and facility personnel.
(b) On-scene survey. The facility owner or operator must ensure
that an on-scene survey of each facility is conducted. The on-scene
survey examines and evaluates existing facility protective measures,
procedures, and operations to verify or collect the information
required in paragraph (a) of this section.
(c) Analysis and recommendations. In conducting the FSA, the
facility owner or operator must ensure that the FSO analyzes the
facility background information and the on-scene survey, and
considering the requirements of this part, provides recommendations to
establish and prioritize the security measures that should be included
in the FSP. The analysis must consider:
(1) Each vulnerability found during the on-scene survey including
but not limited to:
(i) Waterside and shore-side access to the facility and vessel
berthing at the facility;
(ii) Structural integrity of the piers, facilities, and associated
structures;
(iii) Existing security measures and procedures, including
identification systems;
(iv) Existing security measures and procedures relating to services
and utilities;
(v) Measures to protect radio and telecommunication equipment,
including computer systems and networks;
(vi) Adjacent areas that may be exploited during or for an attack;
(vii) Areas that may, if damaged or used for illicit observation,
pose a risk to people, property, or operations within the facility;
(viii) Existing agreements with private security companies
providing waterside and shore-side security services;
(ix) Any conflicting policies between safety and security measures
and procedures;
(x) Any conflicting facility operations and security duty
assignments;
(xi) Any enforcement and personnel constraints;
(xii) Any deficiencies identified during daily operations or
training and drills; and
(xiii) Any deficiencies identified following security incidents or
alerts, the report of security concerns, the exercise of control
measures, or audits;
(2) Possible security threats, including but not limited to:
(i) Damage to or destruction of the facility or of a vessel moored
at the facility;
(ii) Hijacking or seizure of a vessel moored at the facility or of
persons on board;
(iii) Tampering with cargo, essential equipment or systems, or
stores of a vessel moored at the facility;
(iv) Unauthorized access or use including the presence of
stowaways;
(v) Smuggling dangerous substances and devices to the facility;
(vi) Use of a vessel moored at the facility to carry those
intending to cause a security incident and their equipment;
(vii) Use of a vessel moored at the facility as a weapon or as a
means to cause damage or destruction;
(viii) Blockage of entrances, locks, and approaches; and
(ix) Nuclear, biological, radiological, explosive, and chemical
attack;
(3) Threat assessments by Government agencies;
(4) Vulnerabilities, including human factors, in the facility's
infrastructure, policies and procedures;
(5) Any particular aspects of the facility, including the vessels
using the facility, which make it likely to be the target of an attack;
(6) Likely consequences in terms of loss of life, damage to
property, and economic disruption, including disruption to
transportation systems, of an attack on or at the facility; and
(7) Locations where access restrictions or prohibitions will be
applied for each MARSEC Level.
(d) FSA report. (1) The facility owner or operator must ensure that
a written FSA report is prepared and included as part of the FSP. The
report must contain:
(i) A summary of how the on-scene survey was conducted;
(ii) A description of existing security measures, including
inspection, control and monitoring equipment, personnel identification
documents and communication, alarm, lighting, access control, and
similar systems;
(iii) A description of each vulnerability found during the on-scene
survey;
(iv) A description of security measures that could be used to
address each vulnerability;
(v) A list of the key facility operations that are important to
protect; and
(vi) A list of identified weaknesses, including human factors, in
the infrastructure, policies, and procedures of the facility.
(2) A FSA report must describe the following elements within the
facility:
(i) Physical security;
(ii) Structural integrity;
(iii) Personnel protection systems;
(iv) Procedural policies;
(v) Radio and telecommunication systems, including computer systems
and networks;
(vi) Relevant transportation infrastructure; and
(vii) Utilities.
Sec. 105.310 Submission requirements.
(a) A completed FSA report must be submitted with the Facility
Security Plan required in Sec. 105.415 of this part.
(b) A facility owner or operator may generate and submit a report
that contains the Facility Security Assessment for more than one
facility subject to this part, to the extent that they share
similarities in design and operations, if authorized and approved by
the cognizant COTP.
Subpart D--Facility Security Plan (FSP)
Sec. 5.400 General.
(a) The Facility Security Officer (FSO) must ensure a Facility
Security Plan (FSP) is developed and implemented for each facility for
which he or she is designated as FSO. The FSP:
[[Page 39332]]
(1) Must identify the FSO by name and position, and provide 24-hour
contact information;
(2) Must be written in English;
(3) Must address each vulnerability identified in the Facility
Security Assessment (FSA);
(4) Must describe security measures for each MARSEC Level; and
(5) May cover more than one facility to the extent that they share
similarities in design and operations, if authorized and approved by
the cognizant COTP.
(b) The FSP must be submitted for approval to the cognizant COTP in
a written or electronic format. Format for submitting the FSP
electronically can be found at http://www.uscg.mil/HQ/MSC.
(c) The FSP is sensitive security information and must be protected
in accordance with 49 CFR part 1520.
(d) If the FSP is kept in an electronic format, procedures must be
in place to prevent its unauthorized deletion, destruction, or
amendment.
Sec. 105.405 Format and content of the Facility Security Plan (FSP).
(a) A facility owner or operator must ensure that the FSP consists
of the individual sections listed in this paragraph (a). If the FSP
does not follow the order as it appears in the list, the facility owner
or operator must ensure that the FSP contains an index identifying the
location of each of the following sections:
(1) Security administration and organization of the facility;
(2) Personnel training;
(3) Drills and exercises;
(4) Records and documentation;
(5) Response to change in MARSEC Level;
(6) Procedures for interfacing with vessels;
(7) Declaration of Security (DoS);
(8) Communications;
(9) Security systems and equipment maintenance;
(10) Security measures for access control, including designated
public access areas;
(11) Security measures for restricted areas;
(12) Security measures for handling cargo;
(13) Security measures for delivery of vessel stores and bunkers;
(14) Security measures for monitoring;
(15) Security incident procedures;
(16) Audits and security plan amendments;
(17) Facility Security Assessment (FSA) report; and
(18) Facility Vulnerability and Security Measures Summary (Form CG-
6025) in appendix A to part 105-Facility Vulnerability and Security
Measures Summary (CG-6025).
(b) The facility owner or operator must ensure that the FSP
describes in detail how each of the individual requirements of subpart
B of this part will be met.
(c) The Facility Vulnerability and Security Measures Summary (Form
CG-6025) must be completed using information in the FSA concerning
identified vulnerabilities and information in the FSP concerning
security measures in mitigation of these vulnerabilities.
Sec. 105.410 Submission and approval.
(a) On or before December 29, 2003, each facility owner or operator
must either:
(1) Submit one copy of their Facility Security Plan (FSP) for
review and approval to the cognizant COTP; or
(2) If implementing a Coast Guard approved Alternative Security
Program, meet the requirements in Sec. 101.120(b) of this subchapter.
(b) Facilities constructed on or after July 1, 2004, must comply
with the requirements in paragraph (a) of this section 60 days prior to
beginning operations.
(c) The cognizant COTP will examine each submission for compliance
with this part and either:
(1) Approve it and specify any conditions of approval, returning to
the submitter a letter stating its acceptance and any conditions, or
(2) Disapprove it, returning a copy to the submitter with a brief
statement of the reasons for disapproval.
(d) An FSP may be submitted and approved to cover more than one
facility where they share similarities in design and operations, if
authorized and approved by the cognizant COTP.
(e) Each facility owner or operator that submits one FSP to cover
two or more facilities of similar design and operation must address
facility-specific information that includes the design and operational
characteristics of each facility and must complete a separate Facility
Vulnerability and Security Measures Summary (Form CG-6025), in appendix
A to part 105--Facility Vulnerability and Security Measures Summary
(CG-6025), for each facility covered by the plan.
(f) A FSP that is approved by the cognizant COTP is valid for five
years from the date of its approval.
Sec. 105.415 Amendment and audit.
(a) Amendments. (1) Amendments to a FSP that is approved by the
cognizant COTP may be initiated by:
(i) The facility owner or operator; or
(ii) The cognizant COTP upon a determination that an amendment is
needed to maintain the facility's security. The cognizant COTP, who
will give the facility owner or operator written notice and request
that the facility owner or operator propose amendments addressing any
matters specified in the notice. The facility owner or operator will
have at least 60 days to submit its proposed amendments. Until
amendments are approved, the facility owner or operator shall ensure
temporary security measures are implemented to the satisfaction of the
COTP.
(2) Proposed amendments must be submitted to the cognizant COTP. If
initiated by the facility owner or operator, the proposed amendment
must be submitted at least 30 days before the amendment is to take
effect unless the cognizant COTP allows a shorter period. The cognizant
COTP will approve or disapprove the proposed amendment in accordance
with Sec. 105.415 of this subpart.
(3) If there is a change in the owner or operator, the Facility
Security Officer (FSO) must amend the Facility Security Plan (FSP) to
include the name and contact information of the new facility owner or
operator and submit the affected portion of the FSP for review and
approval in accordance with Sec. 105.415 if this subpart.
(b) Audits. (1) The FSO must ensure an audit of the FSP is
performed annually, beginning no later than one year from the initial
date of approval, and attach a letter to the FSP certifying that the
FSP meets the applicable requirements of this part.
(2) The FSP must be audited if there is a change in the facility's
ownership or operator, or if there have been modifications to the
facility, including but not limited to physical structure, emergency
response procedures, security measures, or operations.
(3) Auditing the FSP as a result of modifications to the facility
may be limited to those sections of the FSP affected by the facility
modifications.
(4) Unless impracticable due to the size and nature of the company
or the facility, personnel conducting internal audits of the security
measures specified in the FSP or evaluating its implementation must:
(i) Have knowledge of methods for conducting audits and
inspections, and security, control, and monitoring techniques;
(ii) Not have regularly assigned security duties; and
(iii) Be independent of any security measures being audited.
(5) If the results of an audit require amendment of either the FSA
or FSP, the FSO must submit, in accordance
[[Page 39333]]
with Sec. 105.415 of this subpart, the amendments to the cognizant
COTP for review and approval no later than 30 days after completion of
the audit and a letter certifying that the amended FSP meets the
applicable requirements of this part.
Appendix A to Part 105--Facility Vulnerability and Security Measures
Summary (Form CG-6025)
BILLING CODE 4910-15-P
[[Page 39334]]
![[Image]](uscg001.jpg)
[[Page 39335]]
![[Image]](uscg002.jpg)
[[Page 39336]]
![[Image]](uscg003.jpg)
[[Page 39337]]
![[Image]](uscg004.jpg)
[[Page 39338]]
[FR Doc. 03-16189 Filed 6-27-03; 8:45 am]
BILLING CODE 4910-15-C
[Federal Register: July 1, 2003 (Volume 68, Number 126)]
[Rules and Regulations]
[Page 39338-39353]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr01jy03-18]
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DEPARTMENT OF HOMELAND SECURITY
Coast Guard
33 CFR Part 106
[USCG-2003-14759]
RIN 1625-AA68
Outer Continental Shelf Facility Security
AGENCY: Coast Guard, DHS.
ACTION: Temporary interim rule with request for comments and notice of
meeting.
-----------------------------------------------------------------------
SUMMARY: This interim rule provides security measures for mobile
offshore drilling units (MODUs) not subject to the International
Convention for the Safety of Life at Sea, 1974, (SOLAS) and certain
fixed and floating facilities on the Outer Continental Shelf (OCS)
other than deepwater ports. For the purpose of this part, non-SOLAS
MODUs and certain fixed and floating facilities on the OCS are
collectively referred to as OCS facilities. This rule requires the
owners or operators of OCS facilities to designate security officers,
develop security plans based on security assessments, implement
security measures specific to the OCS facility's operation and comply
with Maritime Security Levels. This interim rule is one of six interim
rules in today's Federal Register that comprise a new subchapter on the
requirements for maritime security mandated by the Maritime
Transportation Security Act of 2002. These six interim rules implement
national maritime security initiatives concerning General Provisions,
Area Maritime Security (ports), Vessels, Facilities, OCS Facilities,
and the Automatic Identification System. Where appropriate, they align
these domestic maritime security requirements with those of the
International Ship and Port Facility Security (ISPS) Code and recent
amendments to SOLAS. This interim rule will benefit persons and
property by requiring security plans and procedures to prevent, deter,
detect, and respond to incidents that threaten the security of OCS
facilities. To best understand these rules, first read the one titled
``Implementation of National Maritime Security Initiatives'' (USCG-
2003-14792).
DATES: Effective date. This interim rule is effective from July 1, 2003
until November 25, 2003.
Comments. Comments and related material must reach the Docket
Management Facility on or before July 31, 2003. Comments on collection
of information sent to the Office of Management and Budget (OMB) must
reach OMB on or before July 31, 2003.
Meeting. A public meeting will be held on July 23, 2003, from 9
a.m. to 5 p.m., in Washington, DC.
ADDRESSES: Comments. To make sure that your comments and related
material are not entered more than once in the docket, please submit
them by only one of the following means:
(1) Electronically to the Docket Management System Web site at
http://dms.dot.gov;
(2) By mail to the Docket Management Facility (USCG-2003-14759),
U.S. Department of Transportation, room PL-401, 400 Seventh Street SW.,
Washington, DC 20590-0001;
(3) By fax to the Docket Management Facility at 202-493-2251; or
(4) By delivery to room PL-401 on the Plaza level of the Nassif
Building, 400 Seventh Street SW., Washington, DC, between 9 a.m. and 5
p.m., Monday through Friday, except Federal holidays. The telephone
number is 202-366-9329.
You must also mail comments on collection of information to the
Office of Information and Regulatory Affairs, Office of Management and
Budget, 725 17th Street NW., Washington, DC 20503, ATTN: Desk Officer,
U.S. Coast Guard.
Meeting. A public meeting will be held on July 23, 2003, in
Washington, DC, at the Grand Hyatt Washington, DC 1000 H Street, NW.,
Washington, DC 20001.
Availability. Electronic forms of all comments received into any of
our dockets can be searched by the name of the individual submitting
the comment (or signing the comment, if submitted on behalf of an
association, business, labor unit, etc.) and is open to the public
without restriction. You may also review the Department of
Transportation's complete Privacy Act Statement published in the
Federal Register on April 11, 2000 (65 FR 19477-78), or you may visit
http://dms.dot.gov/.
FOR FURTHER INFORMATION CONTACT: If you have questions on this rule,
call Lieutenant Greg Versaw by telephone 202-267-1103, toll-free
telephone 1-800-842-8740 ext. 7-1103, or electronic mail
msregs@comdt.uscg.mil. If you have questions on viewing or submitting
material to the docket, call Ms. Dorothy Beard, Chief, Dockets,
Department of Transportation, telephone 202-366-5149.
SUPPLEMENTARY INFORMATION: Due to the short timeframe given to
implement these National Maritime Transportation Security initiatives,
as directed by the Maritime Transportation Security Act (MTSA) of 2002
(MTSA, Pub. L. 107-295, 116 STAT. 2064), and to ensure all comments are
in the public venue for these important rulemakings, we are not
accepting comments containing protected information for these interim
rules. We request you submit comments, as explained in the Request for
Comments section below, and discuss your concerns or support in a
manner that is not security sensitive. We also request that you not
submit proprietary information as part of your comment.
The Docket Management Facility maintains the public docket for this
rulemaking. Comments and material received from the public, as well as
documents mentioned in this preamble as being available in the docket,
will be available for inspection or copying at room PL-401 on the Plaza
level of the Nassif Building, 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
.
Request for Comments
We encourage you to participate in this rulemaking by submitting
comments and related material. Your comments will be considered for the
final rule we plan to issue before November 25, 2003, to replace this
interim rule. If you choose to comment on this rule, please include
your name and address, identify the specific docket number for this
interim rule (USCG-2003-14759), indicate the specific heading of this
document to which each comment applies, and give the reason for each
comment. You may submit your comments and material by mail, hand
delivery, fax, or electronic means to the Docket Management Facility at
the address under ADDRESSES. Please submit your comments and material
by only one means. If you submit them by mail or hand delivery, submit
them in an unbound format, no larger than 8\1/2\ by 11 inches, suitable
for copying and electronic filing. If you submit them by mail and would
like to know that they reached the Facility, please enclose a stamped,
self-addressed postcard or envelope. We will consider all comments and
material received during the comment period. We may change this interim
rule in view of them.
Public Meeting
We will hold a public meeting on July 23, 2003, in Washington, DC
at the
[[Page 39339]]
Grand Hyatt Hotel, at the address listed under ADDRESSES. The meeting
will be from 9 a.m. to 5 p.m. to discuss all of the maritime security
interim rules, and the Automatic Identification System (AIS) interim
rule found in today's Federal Register. In addition, you may submit a
request for other public meetings to the Docket Management Facility at
the address under ADDRESSES explaining why another one would be
beneficial. If we determine that other meetings would aid this
rulemaking, we will hold them at a time and place announced by a later
notice in the Federal Register.
Regulatory Information
We did not publish a notice of proposed rulemaking (NPRM) for this
rulemaking and are making this interim rule effective upon publication.
Section 102(d)(1) of the MTSA requires the publication of an interim
rule as soon as practicable without regard to the provisions of chapter
5 of title 5, U.S. Code (Administrative Procedure Act). The Coast Guard
finds that harmonization of U.S. regulations with maritime security
measures adopted by the International Maritime Organization (IMO) in
December 2002, and the need to institute measures for the protection of
U.S. maritime security as soon as practicable, furnish good cause for
this interim rule to take effect immediately under both the
Administrative Procedure Act and section 808 of the Congressional
Review Act.
Background and Purpose
A summary of the Coast Guard's regulatory initiatives for maritime
security can be found under the Background and Purpose section in the
preamble to the interim rule titled ``Implementation of National
Maritime Security Initiatives'' (USCG-2003-14792) published elsewhere
in today's Federal Register.
Discussion of Comments Addressing OCS Facility Issues in the Notice of
Meeting
For a discussion of comments on OCS facilities at the public
meetings and in the docket, see the interim rule titled
``Implementation of National Maritime Security Initiatives'' (USCG-
2003-14792) published elsewhere in today's Federal Register.
Discussion of Interim Rule
This interim rule regulates the owners and operators of OCS
facilities to provide security to these OCS facilities and to other
vessels with which an OCS facility interfaces. The interim rule adds
new 33 CFR part 106, OCS Facility Security, as part of 33 CFR, Chapter
I, subchapter H, Maritime Security. A general description of the
process used in developing subchapter H and its component parts appears
in the interim rule titled ``Implementation of National Maritime
Security Initiatives'' (USCG-2003-14792).
This interim rule applies to Certificated Mobile Offshore Drilling
Units (MODUs) that are not subject to International Convention for
Safety of Life at Sea, 1974, (SOLAS) and fixed or floating platforms
operating on the Outer Continental Shelf that host more than 150
persons for 12 hours or more during each 24-hour period continuously
for 30 days or more, or produce more than 100,000 barrels of oil per
day, and/or produce more than 200 million cubic feet of natural gas per
day. OCS facilities that do not meet these characteristics may still be
required to conduct a Facility Security Assessment, develop a Facility
Security Plan, and implement certain security measures if the cognizant
Coast Guard District Commander makes that determination. That
determination is made on a case-by-case basis, based upon unique local
conditions, specific intelligence information, or other identifiable
and articulable risk factors that confirm such actions are necessary
and appropriate to ensure an adequate level of security. This
requirement would be issued in a Maritime Security Directive. This
interim rule does not apply to deepwater ports.
The MTSA and the International Ship and Port Facility Security
(ISPS) Code use different terms to define similar, if not identical,
persons or things. These differing terms sometimes match up with the
terms used in subchapter H, but sometimes they do not. For a table of
the terms used in subchapter H and their related terms in the MTSA and
the ISPS Code, see the Discussion of Interim Rule section in the
preamble for the interim rule titled ``Implementation of National
Maritime Security Initiatives'' (USCG-2003-14792), published elsewhere
in today's Federal Register.
The purpose of this rulemaking is to require certain OCS facilities
to perform security assessments, develop security plans, and implement
security measures and procedures to reduce the risk of and to mitigate
the results of an act that threatens the security of the OCS facility,
the crew, or the public. This rulemaking combines international
requirements and existing domestic policy, and is published as a part
of a new subchapter on maritime security. The MTSA mandates that OCS
facilities conduct security assessments and develop security plans,
submit these plans within 6 months of publication of this interim rule.
It also mandates that each OCS facility shall be in compliance with its
approved security plans within 12 months of the publication of this
interim rule.
Part 106 consists of four subparts: subpart A (General), subpart B
(Security Requirements), subpart C (OCS Facility Security Assessment),
and subpart D (OCS Facility Security Plan). The requirements discussed
in part 106 are consistent with similar requirements in parts 104 and
105 of this subchapter. These interim rules include requirements
discussed below.
Waivers
The waiver section of this interim rule establishes procedures for
OCS facility owners or operators who wish to be relieved of complying
with specific requirements of the interim rule on the grounds that
those requirements are unreasonable or unnecessary.
Equivalents
The equivalents section of this interim rule establishes procedures
for requesting an equivalency to the requirements of this interim rule.
Equivalencies are intended to allow an OCS facility owner or operator
to provide an alternative provision or arrangement that provides the
same level of security as a specific requirement contained within this
part.
Alternatives
The alternatives section of this interim rule allows OCS facility
owners or operators to implement an Alternative Security Program that
has been reviewed and accepted by the Commandant (G-MP) to meet the
requirements of this part. An Alternative Security Program must be
comprehensive and must be demonstrated to meet the intent of each
section of this part. Owners or operators are required to implement an
Alternative Security Program in its entirety to be deemed in compliance
with this part.
Appeals
The appeals section of this interim rule establishes the procedures
for OCS facility owners or operators who are aggrieved by, and wish to
contest, a Coast Guard decision regarding a matter covered by this
interim rule.
Owner or Operator Responsibilities
The owner or operator of a facility is generally responsible for
all requirements imposed by this part. The owner or operator must:
[[Page 39340]]
[sbull] Ensure the performance of all OCS facility security duties;
[sbull] Define the security organizational structure for each OCS
facility and provide each person exercising security duties or
responsibilities within that structure with the support needed to
fulfill those obligations;
[sbull] Designate, by name or title, a Company Security Officer and
a Facility Security Officer for each OCS facility;
[sbull] Ensure that a Facility Security Assessment is conducted;
[sbull] Ensure the development and submission for approval of a
Facility Security Plan.
[sbull] Ensure that the OCS facility operates in compliance with
the approved Facility Security Plan;
[sbull] Ensure that adequate coordination of security issues takes
place between the OCS facility and vessels, including the execution of
a Declaration of Security;
[sbull] Ensure that security communication is readily available;
[sbull] Ensure coordination with and implementation of changes in
MARSEC Level; and
[sbull] Ensure all breaches of security and security incidents are
reported.
Company Security Officer (CSO)
This interim rule requires that each OCS facility owner or operator
appoint a Company Security Officer, designated in writing, for each OCS
facility. The Company Security Officer may be a full-time or collateral
position. A Company Security Officer may perform other duties within
the owner or operator's organization provided he or she is able to
perform the duties and responsibilities required of the Company
Security Officer.
The Company Security Officer must have a general knowledge in
matters of a range of issues, such as company security administration
and organization, relevant laws and regulations, current security
threats and patterns, risk assessment methodology, and conducting
audits, inspections, and control procedures. The Company Security
Officer may delegate his or her duties, but remains responsible for the
performance of those duties. The duties of the Company Security Officer
include:
[sbull] Ensuring that a Facility Security Assessment is carried
out;
[sbull] Ensuring that a Facility Security Plan is developed,
approved, maintained, and implemented;
[sbull] Ensuring that the Facility Security Plan is modified when
necessary;
[sbull] Ensuring that OCS facility security activities are audited
and reviewed;
[sbull] Ensuring the timely correction of problems identified by
audits, reviews, or inspections;
[sbull] Ensuring adequate security training; and
[sbull] Ensuring communication and cooperation between the OCS
facility and vessels.
Facility Security Officer (FSO)
This interim rule requires that the owner or operator of OCS
facilities appoint, and designate in writing, a Facility Security
Officer. The Facility Security Officer may be a full-time or collateral
position. The Facility Security Officer must have a general knowledge
in a range of issues such as security administration and organization,
relevant laws and regulations, current security threats and patterns,
risk assessment methodology, and conducting audits, inspections, and
control procedures. The most important duties a Facility Security
Officer must perform include implementing a Facility Security Plan,
ensuring that adequate training is provided to OCS facility personnel;
ensuring that the OCS facility operates in accordance with the plan and
in continuous compliance with part 106; and periodically auditing and
updating the Facility Security Assessment and Facility Security Plan.
The Facility Security Officer may assign security duties to other OCS
facility personnel; however, the Facility Security Officer remains
responsible for these duties.
Training
Required training for OCS facility personnel must be specified in
the Facility Security Plan. The Coast Guard will not require specific
security training courses for the Facility Security Officer and OCS
facility personnel. While formal training may be appropriate, we are
not mandating specifics. OCS facility owners or operators must certify
that security personnel are, in fact, properly trained to perform their
duties. The types of training required must also be consistent with the
training requirements described in this part. The Facility Security
Officer is also required to ensure that OCS facility security persons
possess necessary training to maintain the overall security of the OCS
facility.
Drill and Exercise Requirements
Exercises are required to ensure the adequacy of the Facility
Security Plan and are required to be conducted at least once each
calendar year, with no more than 18 months between exercises. Drills,
which are smaller in scope than exercises, must be conducted at least
every 3 months. Exercises may be OCS facility specific, or as part of a
cooperative exercise program. Exercises for security may be combined
with other required exercises, as appropriate.
Security Systems and Equipment Maintenance
Procedures and/or policies must be developed and implemented to
ensure security systems and equipment are tested and operated in
accordance with the instructions of the manufacturer and ready for use.
Security Measures
Security measures for specific activities must be scalable in order
to provide increasing levels of security at increasing MARSEC levels.
An effective security program relies on detailed procedures that
clearly indicate the preparation and prevention activities that will
occur at each threat level and the organizations, or personnel, who are
responsible for carrying out those activities. Security Measures must
be developed for the following activities:
[sbull] Security measures for access control;
[sbull] Security measures for restricted areas;
[sbull] Security measures for delivery of stores and industrial
supplies; and
[sbull] Security measures for monitoring.
Declaration of Security (DoS)
This interim rule requires the execution of a Declaration of
Security under certain security conditions. A Declaration of Security
provides a means for ensuring that critical security concerns are
properly addressed prior to a vessel-to-facility interface. Security
must be properly addressed by delineating responsibilities for security
arrangements and procedures between a vessel and the OCS facility. This
obligation is similar to the existing U.S. practice for vessel-to-
facility oil transfer procedures.
Only certain vessels carrying Certain Dangerous Cargoes, in bulk,
will complete a Declaration of Security for every evolution regardless
of the MARSEC Level. At MARSEC Levels 2 and 3, all vessels and OCS
facilities would need to complete the Declaration of Security.
OCS facilities that frequently receive the same vessel may execute
a continuing Declaration of Security--a single Declaration of Security
for multiple visits.
Each Declaration of Security must state the security activities for
which the OCS facility and vessel are responsible during the vessel-to-
facility interface.
[[Page 39341]]
Declarations of Security must be kept as part of the OCS facility's
recordkeeping.
Security Incident Procedures
Each OCS facility must develop security incident procedures for
responding to security incidents. The security incident procedures must
explain the OCS facility's reaction to an emergency, including the
notification and coordination with local, State, and federal
authorities. The security incident procedures must also explain actions
for securing the OCS facility as well as actions for evacuating
passengers and crew.
Facility Security Assessment (FSA)
This interim rule requires all appropriate OCS facilities to
complete a Facility Security Assessment, which is an essential part of
the process of developing and updating the required Facility Security
Plan. The Facility Security Assessment is based in part on an on-scene
security survey, which details the overall assessment of the OCS
facility including any existing security measures, and includes a
written report documenting the vulnerabilities and mitigation
strategies of the OCS facility. As discussed in the interim rule
``Implementation of National Maritime Security Initiatives'' (USCG-
2003-14792), 33 CFR 101.510, lists the various assessment tools that
may be used to meet the risk assessment requirements in the parts 104
through 106 of this subchapter. The assessment tools listed are
sufficient to enable the development of the Facility Security Plan.
This list is also provided to ensure that the Facility Security
Assessment is consistent with other modal assessments. We are working
with other agencies to develop assessment tools that are sensitive to
the diversity of the national Marine Transportation System to ensure
consistent levels of security throughout the entire system. The
designated Company Security Officer must conduct the on-scene survey by
examining and evaluating existing OCS facility protective measures,
procedures, and operations. Using the information obtained in the on-
scene survey, the Company Security Officer must ensure the completion
of the Facility Security Assessment. The Facility Security Assessment
identifies and evaluates, in writing, existing security measures; key
OCS facility operations; the likelihood of possible threats to key OCS
facility operations; and weaknesses, including human factors in the
infrastructure, policies, and procedures of the OCS facility.
The Facility Security Assessment includes, among other things, a
written summary of how the assessment was conducted, each vulnerability
found during the assessment, and countermeasures that could be used to
address each vulnerability. The Facility Security Assessment must be
reviewed and updated each time the Facility Security Plan is revised
and when the Facility Security Plan is submitted for re-approval every
five years
Facility Security Plan
This interim rule requires each OCS facility owner or operator to
develop an effective security plan that incorporates detailed
preparedness, prevention, and response activities for each MARSEC
Level, along with the organizations or personnel responsible for
carrying out those activities. The requirements discussed in this part
are consistent with the requirements covered in parts 104 and 105 of
this subchapter.
The Facility Security Plan is a document, written in English that
is prepared in response to the Facility Security Assessment and
approved by the Coast Guard. A single Facility Security Plan may cover
more than one OCS facility to the extent that they share physical
characteristics and operations, if authorized and approved by the
cognizant District Commander.
In addition to other things, the Facility Security Plan must
respond specifically to any recommendations made by the Facility
Security Assessment; must describe, for each MARSEC Level, how the OCS
facility will apply the security measures required in these
regulations; must detail the organizational structure of security for
the OCS facility; must detail the responsibilities of all OCS facility
personnel with a security duty; must detail the OCS facility's
relationships with the Company, vessels that conduct operations with
the OCS facility, and relevant authorities with a security
responsibility; must provide for regular audit of the FSP and for its
amendment in response to experience or changing circumstances; and must
establish the procedures needed to assess the continuing effectiveness
of security procedures and all security-related equipment and systems,
including procedures for identifying and responding to equipment or
systems failure or malfunction.
Submission and Approval of Security Plan
The Facility Security Plan, including the Facility Security
Assessment report must, be submitted to and reviewed by the cognizant
District Commander. Once the cognizant District Commander finds that
the plan meets the security requirements in part 106, the submitter
will receive confirmation via an approval letter.
If the cognizant District Commander requires more time than is
indicated in the requirements of the interim rule to review a submitted
Facility Security Plan, the cognizant District Commander may return to
the submitter a written acknowledgement stating that the Coast Guard is
currently reviewing the Facility Security Plan submitted for approval,
and that the OCS facility may continue to operate so long as the OCS
facility remains in compliance with the submitted Facility Security
Plan.
If the cognizant District Commander finds that the FSP does not
meet the security requirements, the plan would be returned to the OCS
facility with either an approval letter stating conditions of the
approval, or a disapproval letter along with an explanation of why the
plan does not meet the part 106 requirements.
Security plans must be reviewed by the Coast Guard every time:
[sbull] The Facility Security Assessment is altered;
[sbull] Failures are identified during an exercise of the Facility
Security Plan; and
[sbull] There is a change in ownership or operational control of
the OCS facility or there are amendments to the Facility Security Plan.
Regulatory Assessment
This interim rule is a ``significant regulatory action'' under
section 3(f) of Executive Order 12866, Regulatory Planning and Review,
and has been reviewed by the Office of Management and Budget 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
Regulatory Assessment is available in the docket as indicated under
ADDRESSES. A summary of the Assessment follows:
Cost Assessment
For the purposes of good business practice or regulations
promulgated by other Federal and State agencies, many companies already
have spent a substantial amount of money and resources to upgrade and
improve security. The costs shown in this assessment do not include
security measures these companies have already taken to enhance
security.
The Coast Guard realizes that every company engaged in maritime
commerce will not implement this interim rule exactly as presented in
the
[[Page 39342]]
assessment. Depending on each company's choices, some companies could
spend much less than what is estimated herein while others could spend
significantly more. In general, the Coast Guard assume that each
company will implement this interim rule differently based on the types
of OCS facilities it owns or operates and whether it engages in
international or domestic trade.
This interim rule will affect about 40 OCS facilities under U.S.
jurisdiction, (current and future facilities). These OCS facilities
engage in exploring for, developing, or producing oil, natural gas, or
mineral resources. To determine the number of OCS facilities, we used
data that the Mineral Management Service (MMS) has identified as
nationally critical OCS oil and gas infrastructure. These OCS
facilities meet or exceed any of the following operational threshold
characteristics:
(1) OCS facility hosts more than 150 persons for 12 hours or more
in each 24-hour period continuously for 30 days or more;
(2) Production greater than 100,000 (one hundred thousand) barrels
of oil per day; or
(3) Production greater than 200,000,000 (two hundred million) cubic
feet of natural gas per day.
The estimated cost of complying with the interim rule is Present
Value (PV) $37 million (2003-2012, 7 percent discount rate). In the
first year of compliance, the cost of security assessments and plans,
training, personnel, and paperwork is an estimated $3 million (non-
discounted). Following initial implementation, the annual cost of
compliance is an estimated $5 million (non-discounted).
Approximately 80 percent of the initial cost of the interim rule is
for assigning and establishing Company Security Officers and Facility
Security Officers, 12 percent is associated with paperwork creating
Facility Security Assessments and Facility Security Plans, and 8
percent of the cost is associated with initial training (not including
quarterly drills). Following the first year, approximately 58 percent
of the cost is training (including quarterly drills), 42 percent is for
Company Security Officers and Facility Security Officers, and less than
1 percent is associated with paperwork. Annual training (including
quarterly drills) is the primary cost driver of OCS facility security.
We estimated approximately 3,200 burden hours for paperwork during
the first year of compliance (40 hours for each Facility Security
Assessment and each Facility Security Plan). We estimated approximately
160 burden hours annually following full implementation of the interim
rule to update Facility Security Assessments and Facility Security
Plans.
We estimated the cost of this interim rule to be minimal in
comparison to vessel and non-OCS facility security implementation. This
interim rule includes only personnel, training, and paperwork costs for
the affected OCS facility population. We assume the industry is
adequately prepared with equipment suited to be used for security
purposes (lights, radios, communications), therefore no security
equipment installation, upgrades, or maintenance will be required for
this interim rule.
Benefit Assessment
This interim rule is one of six interim rules that implement
national maritime security initiatives concerning General Provisions,
Area Maritime Security (ports), Vessels, Facilities, OCS Facilities,
and AIS. The Coast Guard used the National Risk Assessment Tool (N-RAT)
to assess benefits that would result from increased security for
vessels, facilities, OCS facilities, and ports. The N-RAT considers
threat, vulnerability, and consequences for several maritime entities
in various security-related scenarios. For a more detailed discussion
on the N-RAT and how we employed this tool, refer to Applicability of
National Maritime Security Initiatives in the interim rule titled
``Implementation of National Maritime Security Initiatives'' (USCG-
2003-14792) published elsewhere in today's Federal Register. For this
benefit assessment, the Coast Guard used a team of experts to calculate
a risk score for each entity and scenario before and after the
implementation of required security measures. The difference in before
and after scores indicates the benefit of the proposed action.
The Coast Guard recognized that the interim rules are a ``family''
of rules that will reinforce and support one another in their
implementation. The Coast Guard has ensured, however, that risk
reduction that is credited in one rulemaking is not also credited in
another. For a more detailed discussion on the benefit assessment and
how the Coast Guard addressed the potential to double-count the risk
reduced, refer to Benefit Assessment in the interim rule titled
``Implementation of National Maritime Security Initiatives'' (USCG-
2003-14792) published elsewhere in today's Federal Register.
The Coast Guard determined annual risk points reduced for each of
the six interim rules using the N-RAT. The benefits are apportioned
among the Vessel, Facility, OCS Facility, AMS, and AIS requirements. As
shown in Table 1, the implementation of OCS Facility Security Plans for
the affected population reduces 13,288 risk points annually through
2012. The benefits attributable for part 101, General Provisions, were
not considered separately since it is an overarching section for all
the parts.
Table 1.--Annual Risk Points Reduced by the Interim Rules
----------------------------------------------------------------------------------------------------------------
Annual risk points reduced by rulemaking
-------------------------------------------------------------------------------
Maritime entity Vessel Facility OCS facility
security plans security plans security plans AMS plans AIS
----------------------------------------------------------------------------------------------------------------
Vessels......................... 778,633 3,385 3,385 3,385 1,448
Facilities...................... 2,025 469,686 .............. 2,025 ..............
OCS Facilities.................. 41 .............. 9,903 .............. ..............
Port Areas...................... 587 587 .............. 129,792 105
-----------------
Total....................... 781,285 473,659 13,288 135,202 1,553
----------------------------------------------------------------------------------------------------------------
Once we determined the annual risk points reduced, we discounted
these estimates to their present value (7 percent discount rate, 2003-
2012) so that they could be compared to the costs. We presented the
cost effectiveness, or dollars per risk point reduced, in two ways:
First, we compared the first-year cost and first-
[[Page 39343]]
year benefit because first-year cost is the highest in our assessment
as companies develop security plans and purchase equipment. Second, we
compared the 10-year PV cost and the 10-year PV benefit. The results of
our assessment are presented in Table 2.
Table 2.--First-Year and 10-Year PV Cost and Benefit of the Interim Rules
----------------------------------------------------------------------------------------------------------------
Interim rule
-------------------------------------------------------------------------------
Item Vessel Facility OCS facility
security plans security plans security plans AMS plans AIS \1\
----------------------------------------------------------------------------------------------------------------
First-Year Cost (millions)...... $218 $1,125 $3 $120 $41
First-Year Benefit.............. 781,285 473,659 13,288 135,202 1,553
First-Year Cost Effectiveness ($/ $279 $2,375 $205 $890 $26,391
Risk Point Reduced)............
10-Year PV Cost (millions)...... $1,368 $5,399 $37 $477 $42
10-Year PV Benefit.............. 5,871,540 3,559,655 99,863 1,016,074 11,671
10-Year PV Cost Effectiveness ($/ $233 $1,517 $368 $469 $3,624
Risk Point Reduced)............
----------------------------------------------------------------------------------------------------------------
\1\ Cost less monetized safety benefit.
Small Entities
Under the Regulatory Flexibility Act (5 U.S.C. 601-612), the Coast
Guard has considered whether this interim rule would have a significant
economic impact on a substantial number of small entities. The term
``small entities'' comprises small businesses, not-for-profit
organizations that are independently owned and operated and are not
dominant in their fields, and governmental jurisdictions with
populations of less than 50,000. This interim rule does not require a
general notice of proposed rulemaking and, therefore, is exempt from
the requirements of the Regulatory Flexibility Act. Although this
interim rule is exempt, the Coast Guard has reviewed it for potential
economic impacts on small entities. An Initial Regulatory Flexibility
Analysis discussing the impact of this interim rule on small entities
is available in the docket where indicated under ADDRESSES.
There are approximately 40 total current and future OCS facilities
owned by 5 large companies that will be affected by this interim rule.
Depending on how the corporate headquarters' operation is classified
and whether it is oil or gas specific, these companies are generally
classified under the North American Industry Classification System
(NAICS) code 211111 or 221210. According to the Small Business
Administration guidelines for these industries, a company with less
than 500 total corporate employees is considered a small entity. The
entities affected by this interim rule do not qualify as small entities
because all of them have more than 500 employees.
Therefore, the Coast Guard certifies under 5 U.S.C. 605(b) that
this interim rule will not have a significant economic impact on a
substantial number of small entities. If you think that your business,
organization, or governmental jurisdiction qualifies as a small entity
and that this interim rule will have a significant economic impact on
it, please submit a comment to the Docket Management Facility at the
address under ADDRESSES. In your comment, explain why you think it
qualifies and how and to what degree this interim rule would
economically affect it.
Assistance for Small Entities
Under section 213(a) of the Small Business Regulatory Enforcement
Fairness Act of 1996 (Pub. L. 104-121), we want to assist small
entities in understanding this interim rule so that they can better
evaluate its effects on them and participate in the rulemaking. If the
interim rule would affect your small business, organization, or
governmental jurisdiction and you have questions concerning its
provisions or options for compliance, please consult Lieutenant Greg
Versaw, Coast Guard by telephone 202-267-1103, toll-free telephone 1-
800-842-8740 ext. 7-1103, or electronic mail msregs@comdt.uscg.mil.
Small businesses may send comments on the actions of Federal employees
who enforce, or otherwise determine compliance with, Federal
regulations to the Small Business and Agriculture Regulatory
Enforcement Ombudsman and the Regional Small Business Regulatory
Fairness Boards. The Ombudsman evaluates these actions annually and
rates each agency's responsiveness to small business. If you wish to
comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR
(1-888-734-3247).
Collection of Information
This interim rule calls for a collection of information under the
Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520). As defined in 5
CFR 1320.3(c), ``collection of information'' comprises reporting,
recordkeeping, monitoring, posting, labeling, and other, similar
actions. The title and description of the information collections, a
description of those who must collect the information, and an estimate
of the total annual burden follow. The estimate covers the time for
reviewing instructions, searching existing sources of data, gathering
and maintaining the data needed, and completing and reviewing the
collection. This interim rule modifies an existing OMB-approved
collection--1625-0077 (formerly 2115-0551). A summary of the revised
collection follows.
Title: Security Plans for Ports, Vessels, Facilities, and Outer
Continental Shelf Facilities and Other Security-Related Requirements.
OMB Control Number: 1625-0077.
Summary of the Collection of Information: The Coast Guard requires
security standards for certain non-SOLAS Certificated MODUs and fixed
and floating OCS platforms engaged in the exploration, production and
development of oil and mineral resources on the OCS. This interim rule
provides a framework to ensure adequate security planning, drilling,
and communication procedures by requiring OCS facilities to develop and
submit for approval Facility Security Assessments and Facility Security
Plans. It also requires the use of a Declaration of Security between
OCS facilities and certain vessels.
Need for Information: The primary need for information is to
identify the adequate security mitigating measures that will be
implemented when needed.
Proposed Use of Information: The information will be used to
identify and communicate the security mitigating measures to the Coast
Guard and necessary personnel. Declarations of Security will be used to
identify and
[[Page 39344]]
delineate the security responsibilities between an OCS facility and a
vessel.
Description of the Respondents: OCS facilities that produce 100,000
(one hundred thousand) barrels of oil per day or 200,000,000 (two
hundred million) cubic feet of natural gas per day or host more than
150 persons for 12 hours or more during a 24-hour period continuously
for 30 days or more.
Number of Respondents: 40.
Frequency of Response: Varies.
Initial OCS Facility Security Assessments and OCS Facility Security
Plans occur the first year the OCS facility is online with updates
during each following year.
Depending on the OCS facility there may be additional requirements
and reporting frequencies.
Burden of Response: Development burden for the Facility Security
Assessments and Facility Security Plans are estimated to be 80 hours
for each OCS facility. Updating the assessments and plans is estimated
to be 4 hours for some facilities and 2 hours for others. The
Declaration of Security is expected to be 15 minutes each.
Estimate of Total Annual Burden: During the initial year the burden
will be 3,200 hours. The average annual reporting burden to industry is
160 hours. For a summary of all revisions to this existing OMB-approved
collection, refer to Collection of Information in the interim rule
titled ``Implementation of National Maritime Security Initiatives''
(USCG-2003-14792) published elsewhere in today's Federal Register.
As required by the Paperwork Reduction Act of 1995 (44 U.S.C.
3507(d)), we have submitted a copy of this interim rule to the Office
of Management and Budget (OMB) for its review of the collection of
information. Due to the circumstances surrounding this temporary rule,
we asked for ``emergency processing'' of our request. We received OMB
approval for the collection of information on June 16, 2003. It is
valid until December 31, 2003.
We ask for public comment on the collection of information to help
us determine how useful the information is; whether it can help us
perform our functions better; whether it is readily available
elsewhere; how accurate our estimate of the burden of collection is;
how valid our methods for determining burden are; how we can improve
the quality, usefulness, and clarity of the information; and how we can
minimize the burden of collection.
If you submit comments on the collection of information, submit
them both to OMB and to the Docket Management Facility where indicated
under ADDRESSES, by the date under DATES.
You need not respond to a collection of information unless it
displays a currently valid control number from OMB. We received OMB
approval for the collection of information on June 16, 2003. It is
valid until December 31, 2003.
Federalism
An interim rule has implications for federalism under Executive
Order 13132, Federalism, if it has a substantial direct effect on State
or local governments and would either preempt State law or impose a
substantial direct cost of compliance on them. This part applies to
facilities that are on the OCS, outside the jurisdiction of State
waters or submerged lands. Nothing in this part will have a substantial
direct effect on State or local governments, nor will a substantial
direct cost of compliance be imposed on them. We have analyzed this
interim rule under Executive Order 13132 and have determined that it
therefore does not have implications for federalism.
Unfunded Mandates Reform Act
The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538)
requires Federal agencies to assess the effects of their discretionary
regulatory actions. In particular, the Act addresses actions that may
result in the expenditure by a State, local, or tribal government, in
the aggregate, or by the private sector of $100,000,000 or more in any
one year. This interim rule is exempted from assessing the effects of
the regulatory action as required by the Act because it is necessary
for the national security of the United States (2 U.S.C. 1503(5)).
Taking of Private Property
This interim rule will not effect a taking of private property or
otherwise have taking implications under Executive Order 12630,
Governmental Actions and Interference with Constitutionally Protected
Property Rights.
Civil Justice Reform
This interim rule meets applicable standards in sections 3(a) and
3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize
litigation, eliminate ambiguity, and reduce burden.
Protection of Children
We have analyzed this interim rule under Executive Order 13045,
Protection of Children from Environmental Health Risks and Safety
Risks. While this interim rule is an economically significant rule, it
does not create an environmental risk to health or risk to safety that
may disproportionately affect children.
Indian Tribal Governments
This interim rule does not have tribal implications under Executive
Order 13175, Consultation and Coordination with Indian Tribal
Governments, because it does not have a substantial direct effect on
one or more Indian tribes, on the relationship between the Federal
Government and Indian tribes, or on the distribution of power and
responsibilities between the Federal Government and Indian tribes.
Energy Effects
We have analyzed this interim rule under Executive Order 13211,
Actions Concerning Regulations That Significantly Affect Energy Supply,
Distribution, or Use. We have determined that it is not a ``significant
energy action'' under that order. Although it is a ``significant
regulatory action'' under Executive Order 12866, it is not likely to
have a significant adverse effect on the supply, distribution, or use
of energy. The Administrator of the Office of Information and
Regulatory Affairs has not designated it as a significant energy
action. Therefore, it does not require a Statement of Energy Effects
under Executive Order 13211.
This interim rule has a positive effect on the supply,
distribution, and use of energy. The interim rule provides for security
assessments, plans, procedures, and standards, which will prove
beneficial for the supply, distribution, and use of energy at increased
levels of maritime security.
Trade Impact Assessment
The Trade Agreement Act of 1979 (19 U.S.C. 2501-2582) prohibits
Federal agencies from engaging in any standards or related activities
that create unnecessary obstacles to the foreign commerce of the United
States. Legitimate domestic objectives, such as safety and security,
are not considered unnecessary obstacles. The Act also requires
consideration of international standards and, where appropriate, that
they be the basis for U.S. standards. We have assessed the potential
effect of this interim rule and have determined that it would likely
create obstacles to the foreign commerce of the United States. However,
because these regulations are being put in place in order to further a
legitimate domestic objective, to increase the security of the United
States, any obstacles created by the
[[Page 39345]]
regulation are not considered unnecessary obstacles.
Environment
We have considered the environmental impact of this interim rule
and concluded that under figure 2-1, paragraph (34)(a) and (34)(c), of
Commandant Instruction M16475.lD, this interim rule is categorically
excluded from further environmental documentation. This interim rule
concerns security assessments, plans, training for personnel, and the
establishment of security positions that will contribute to a higher
level of marine safety and security for OCS facilities extracting oil
or gas. A ``Categorical Exclusion Determination'' is available in the
docket where indicated under ADDRESSES or SUPPLEMENTARY INFORMATION.
This rulemaking will not significantly impact the coastal zone.
Further, the rulemaking and the execution of this interim rule will be
done in conjunction with appropriate State coastal authorities. The
Coast Guard will therefore, comply with the requirements of the Coastal
Zone Management Act while furthering its intent to protect the coastal
zone.
List of Subjects in 33 CFR Part 106
Facilities, Maritime security, Outer Continental Shelf, Reporting
and recordkeeping requirements, Security measures.
0
For the reasons discussed in the preamble, the Coast Guard is adding
part 106 to subchapter H of chapter I of title 33 of the CFR.
PART 106--OUTER CONTINENTAL SHELF (OCS) FACILITY SECURITY
Subpart A--General
Sec.
106.100 Definitions.
106.105 Applicability.
106.110 Compliance dates.
106.115 Compliance documentation.
106.120 Noncompliance.
106.125 Waivers.
106.130 Equivalents.
106.135 Alternative Security Program.
106.140 Maritime Security (MARSEC) Directive.
106.145 Right to appeal.
Subpart B--Outer Continental Shelf (OCS) Facility Security Requirements
106.200 Owner or operator.
106.205 Company Security Officer (CSO).
106.210 Facility Security Officer (FSO).
106.215 Company or OCS facility personnel with security duties.
106.220 Security training for all other OCS facility personnel.
106.225 Drill and exercise requirements.
106.230 OCS facility recordkeeping requirements.
106.235 Maritime Security (MARSEC) Level coordination and
implementation.
106.240 Communications.
106.245 Procedures for interfacing with vessels.
106.250 Declaration of Security (DoS).
106.255 Security systems and equipment maintenance.
106.260 Security measures for access control.
106.265 Security measures for restricted areas.
106.270 Security measures for delivery of stores and industrial
supplies.
106.275 Security measures for monitoring.
106.280 Security incident procedures.
Subpart C--Outer Continental Shelf (OCS) Facility Security Assessment
(FSA)
106.300 General.
106.305 Facility Security Assessment (FSA) requirements.
106.310 Submission requirements.
Subpart D--Outer Continental Shelf (OCS) Facility Security Plan (FSP)
106.400 General.
106.405 Format and Content of the Facility Security Plan (FSP).
106.410 Submission and approval.
106.415 Amendment and audit.
Authority: 33 U.S.C. 1226, 1231; 46 U.S.C. Chapter 701; 50
U.S.C. 191; 33 CFR 1.05-1, 6.04-11, 6.14, 6.16, and 6.19; Department
of Homeland Security Delegation No. 0170.
Subpart A--General
Sec. 106.100 Definitions.
Except as specifically stated in this subpart, the definitions in
part 101 of this subchapter apply to this part.
Sec. 106.105 Applicability.
The requirements in this part apply to owners and operators of any
fixed or floating facility, including MODUs not subject to part 104 of
this subchapter, operating on the Outer Continental Shelf (OCS) of the
United States for the purposes of engaging in the exploration,
development, or production of oil, natural gas, or mineral resources
that are regulated by 33 CFR subchapter N, that meet the following
operating conditions:
(a) Hosts more than 150 persons for 12 hours or more in each 24-
hour period continuously for 30 days or more;
(b) Produces greater than 100,000 barrels of oil per day; or
(c) Produces greater than 200 million cubic feet of natural gas per
day.
Sec. 106.110 Compliance dates.
(a) On or before December 29, 2003, each Outer Continental Shelf
(OCS) facility owner or operator must submit for each OCS facility a
Facility Security Plan (FSP) described in subpart D of this part for
review and approval to the cognizant District Commander.
(b) On or before June 25, 2004, each OCS facility owner or operator
must be operating in compliance with this part.
(c) OCS facilities built on or after July 1, 2004, must submit for
approval an FSP 60 days prior to beginning operations.
Sec. 106.115 Compliance documentation.
Each OCS facility owner or operator subject to this part must
ensure that no later than July 1, 2004, that copies of the following
documentation are available at the OCS facility and are made available
to the Coast Guard upon request:
(a) The approved Facility Security Plan (FSP) and any approved
revisions or amendments thereto, and a letter of approval from the
cognizant District Commander dated within the last 5 years;
(b) The FSP submitted for approval and current written
acknowledgment from the cognizant District Commander, stating that the
Coast Guard is currently reviewing the FSP submitted for approval and
that the OCS facility may continue to operate so long as the OCS
facility remains in compliance with the submitted FSP; or
(c) For OCS facilities operating under a Coast Guard-approved
Alternative Security Program as provided in Sec. 106.135, a copy of
the Alternative Security Program the OCS facility is using and a letter
signed by the OCS facility owner or operator, stating which Alternative
Security Program the OCS facility is using and certifying that the OCS
facility is in full compliance with that program.
Sec. 106.120 Noncompliance.
When an OCS facility is not in compliance with the requirements of
this part, the OCS facility owner or operator must notify the cognizant
District Commander and request a waiver to continue operations.
Sec. 106.125 Waivers.
Any OCS facility owner or operator may apply for a waiver of any
requirement of this part that the OCS facility owner or operator
considers unnecessary in light of the nature or operating conditions of
the OCS facility. A request for a waiver must be submitted in writing
with justification to the cognizant District Commander. The cognizant
District Commander may require the OCS facility owner or operator to
provide additional data for use in determining the validity of the
requested waiver. The cognizant District Commander may grant a waiver,
in writing, with or without conditions only if the waiver will not
reduce the overall
[[Page 39346]]
security of the OCS facility, its personnel, or visiting vessels.
Sec. 106.130 Equivalents.
For any measure required by this part, the OCS facility owner or
operator may propose an equivalent, as provided in Sec. 101.130 of
this subchapter.
Sec. 106.135 Alternative Security Program.
An OCS facility owner or operator may use an Alternative Security
Program approved under Sec. 101.120 of this subchapter if:
(a) The Alternative Security Program is appropriate to that OCS
facility;
(b) The OCS facility does not serve vessels on international
voyages; and
(c) The Alternative Security Program is implemented in its
entirety.
Sec. 106.140 Maritime Security (MARSEC) Directive.
All OCS facility owners or operators subject to this part must
comply with any instructions contained in a MARSEC Directive issued
under Sec. 101.405 of this subchapter.
Sec. 106.145 Right to appeal.
Any person directly affected by a decision or action taken under
this part, by or on behalf of the Coast Guard, may appeal as described
in Sec. 101.420 of this subchapter.
Subpart B--Outer Continental Shelf (OCS) Facility Security
Requirements
Sec. 106.200 Owner or operator.
(a) Each OCS facility owner or operator must ensure that the OCS
facility operates in compliance with the requirements of this part.
(b) For each OCS facility, the OCS facility owner or operator must:
(1) Define the security organizational structure for each OCS
Facility and provide each person exercising security duties or
responsibilities within that structure the support needed to fulfill
those obligations;
(2) Designate in writing, by name or title, a Company Security
Officer (CSO) and a Facility Security Officer (FSO) for each OCS
Facility and identify how those officers can be contacted at any time;
(3) Ensure that a Facility Security Assessment (FSA) is conducted;
(4) Ensure the development and submission for approval of a
Facility Security Plan (FSP);
(5) Ensure that the OCS facility operates in compliance with the
approved FSP;
(6) Ensure that adequate coordination of security issues takes
place between OCS facilities and vessels, including the execution of a
Declaration of Security (DoS) as required by this part;
(7) Ensure, within 12 hours of notification of an increase in
MARSEC Level, implementation of the additional security measures
required by the FSP for the new MARSEC Level; and
(8) Ensure all breaches of security and security incidents are
reported in accordance with part 101 of this subchapter.
Sec. 106.205 Company Security Officer (CSO).
(a) General. (1) An OCS facility owner or operator may designate a
single CSO for all its OCS facilities to which this part applies, or
may designate more than one CSO, in which case the owner or operator
must clearly identify the OCS facilities for which each CSO is
responsible.
(2) A CSO may perform other duties within the owner's or operator's
organization, provided he or she is able to perform the duties and
responsibilities required of the CSO.
(3) The CSO may delegate duties required by this part, but remains
responsible for the performance of those duties.
(b) Qualifications. The CSO must have general knowledge, through
training or equivalent job experience, in the following:
(1) Security administration and organization of the OCS facility;
(2) OCS facility and vessel operations and conditions;
(3) OCS facility and vessel security measures including the meaning
and consequential requirements of the different MARSEC Levels;
(4) Emergency preparedness and response and contingency planning;
(5) Security equipment and systems and their operational
limitations;
(6) Methods of conducting audits, inspection, control, and
monitoring; and
(7) Techniques for security training and education, including
security measures and procedures.
(c) In addition to the knowledge and training in paragraph (b) of
this section, the CSO must have general knowledge, through training or
equivalent job experience, in the following, as appropriate:
(1) Relevant international conventions, codes, and recommendations;
(2) Relevant government legislation and regulations;
(3) Responsibilities and functions of other security organizations;
(4) Methodology of Facility Assessment;
(5) Methods of OCS facility security surveys and inspections.
(6) Handling sensitive security information (SSI) and security
related communications;
(7) Knowledge of current security threats and patterns;
(8) Recognition and detection of dangerous substances and devices;
(9) Recognition of characteristics and behavioral patterns of
persons who are likely to threaten security;
(10) Techniques used to circumvent security measures;
(11) Methods of physical screening and non-intrusive inspections;
and
(12) Conducting and assessing security drills and exercises.
(d) Responsibilities. In addition to any other duties required by
this part, for each OCS facility for which the CSO is responsible, the
CSO must:
(1) Keep the OCS facility apprised of potential threats or other
information relevant to its security;
(2) Ensure that a Facility Security Assessment (FSA) is carried out
in compliance with this part;
(3) Ensure that a Facility Security Plan (FSP) is developed,
approved, maintained, and implemented in compliance with this part;
(4) Ensure that the FSP is modified when necessary to comply with
this part;
(5) Ensure that OCS facility security activities are audited in
compliance with this part;
(6) Ensure the timely correction of problems identified by audits
or inspections;
(7) Enhance security awareness and vigilance within the owner's or
operator's organization;
(8) Ensure relevant personnel receive adequate security training in
compliance with this part;
(9) Ensure communication and cooperation between the OCS facility
and vessels that interface with it, in compliance with this part;
(10) Ensure consistency between security requirements and safety
requirements in compliance with this part;
(11) Ensure that if a common FSP is prepared for more than one
similar OCS facility, the FSP reflects any OCS facility specific
characteristics; and
(12) Ensure compliance with an Alternative Security Program or
equivalents approved under this subchapter, if appropriate.
Sec. 106.210 OCS Facility Security Officer (FSO).
(a) General. (1) The FSO may perform other duties within the
owner's or operator's organization, provided he or she is able to
perform the duties and responsibilities required of the FSO of each
such OCS facility.
(2) The same person may serve as the FSO for more than one OCS
facility,
[[Page 39347]]
provided the facilities are within a reasonable proximity to each
other. If a person serves as the FSO for more than one OCS facility,
the name of each OCS facility for which he or she is the FSO must be
listed in the Facility Security Plan (FSP) of each OCS facility for
which he or she is the FSO.
(3) The FSO may assign security duties to other OCS facility
personnel; however, the FSO remains responsible for these duties.
(b) Qualifications. The FSO must have general knowledge, through
training or equivalent job experience, in the following:
(1) Those items listed in Sec. 106.205(b), and as appropriate
Sec. 106.205(c), of this part;
(2) OCS facility layout;
(3) The FSP and related procedures; and
(4) Operation, testing and maintenance of security equipment and
systems.
(c) Responsibilities. In addition to any other responsibilities
specified elsewhere in this part, the FSO must, for each OCS facility
for which he or she has been designated:
(1) Regularly inspect the OCS facility to ensure that security
measures are maintained in compliance with this part;
(2) Ensure the maintenance of and supervision of the implementation
of the FSP, and any amendments to the FSP, in compliance with this
part;
(3) Ensure the coordination and handling of stores and industrial
supplies in compliance with this part;
(4) Where applicable, propose modifications to the FSP to the
Company Security Officer (CSO);
(5) Ensure that any problems identified during audits or
inspections are reported to the CSO, and promptly implement any
corrective actions;
(6) Ensure security awareness and vigilance on board the OCS
facility;
(7) Ensure adequate security training for OCS facility personnel in
compliance with this part;
(8) Ensure the reporting and recording of all security incidents in
compliance with this part;
(9) Ensure the coordinated implementation of the FSP with the CSO;
(10) Ensure that security equipment is properly operated, tested,
calibrated and maintained in compliance with this part;
(11) Ensure consistency between security requirements and the
proper treatment of OCS facility personnel affected by those
requirements;
(12) Ensure that occurrences that threaten the security of the OCS
facility are recorded and reported to the CSO;
(13) Ensure that when changes in the MARSEC Level are attained they
are recorded and reported to the CSO, OCS facility owner or operator,
and the cognizant District Commander; and
(14) Have prompt access to a copy of the FSA, along with an
approved copy of the FSP.
Sec. 106.215 Company or OCS facility personnel with security duties.
Company or OCS facility personnel responsible for security duties
must have knowledge, through training or equivalent job experience, in
the following, as appropriate:
(a) Knowledge of current security threats and patterns;
(b) Recognition and detection of dangerous substances and devices;
(c) Recognition of characteristics and behavioral patterns of
persons who are likely to threaten security;
(d) Recognition of techniques used to circumvent security measures;
(e) Security related communications;
(f) Knowledge of emergency procedures and contingency plans;
(g) Operation of security equipment and systems;
(h) Testing, calibration, and maintenance of security equipment and
systems;
(i) Inspection, control, and monitoring techniques;
(j) Methods of physical screenings of persons, personal effects,
stores and industrial supplies;
(k) Relevant provisions of the Facility Security Plan (FSP); and
(l) The meaning and the consequential requirements of the different
MARSEC Levels.
Sec. 106.220 Security training for all other OCS facility personnel.
All other OCS facility personnel, including contractors, whether
part-time, full-time, temporary, or permanent, must have knowledge,
through training or equivalent job experience, of the following:
(a) Relevant provisions of the Facility Security Plan (FSP);
(b) The meaning and the consequential requirements of the different
MARSEC Levels including emergency procedures and contingency plans;
(c) Recognition and detection of dangerous substances and devices;
(d) Recognition of characteristics and behavioral patterns of
persons who are likely to threaten security; and
(e) Recognition of techniques used to circumvent security measures.
Sec. 106.225 Drill and exercise requirements.
(a) General. Drills and exercises must test the proficiency of OCS
facility personnel in assigned security duties at all MARSEC Levels and
the effective implementation of the Facility Security Plan (FSP). They
must enable the Facility Security Officer (FSO) to identify any related
security deficiencies that need to be addressed.
(b) Drills. (1) From the date of the FSP approval, the FSO must
ensure that at least one security drill is conducted every 3 months.
Security drills may be held in conjunction with non-security drills,
where appropriate.
(2) Drills must test individual elements of the FSP, including
response to security threats and incidents. Drills should take into
account the types of operations of the OCS facility, OCS facility
personnel changes, the types of vessels calling at the OCS facility,
and other relevant circumstances. Examples of drills include
unauthorized entry to a restricted area, response to alarms, and
notification of appropriate authorities.
(3) If a vessel is conducting operations with the OCS facility on
the date the OCS facility has planned to conduct any drills, the OCS
facility may include, but cannot require, the vessel or vessel
personnel to participate in the OCS facility's scheduled drill.
(c) Exercises. (1) From the date of the FSP approval, exercises
must be conducted at least once each calendar year, with no more than
18 months between exercises.
(2) Exercises may be:
(i) Full scale or live;
(ii) Tabletop simulation;
(iii) Combined with other appropriate exercises held; or
(iv) A combination of the elements in paragraphs (c)(2)(i) through
(iii) of this section.
(3) Exercises may be facility-specific or part of a cooperative
exercise program.
(4) Each exercise must test communication and notification
procedures, and elements of coordination, resource availability, and
response.
(5) Exercises are a full test of the Facility Security Plan and
must include substantial and active participation of relevant company
and OCS facility personnel, and may include governmental authorities
and vessels depending on the scope and the nature of the exercise.
Sec. 106.230 OCS facility recordkeeping requirements.
(a) Unless otherwise specified in this section, the Facility
Security Officer (FSO) must keep records of the activities as set out
in paragraph (b) of this section for at least 2 years and make them
available to the Coast Guard upon request.
[[Page 39348]]
(b) Records required by this section may be kept in electronic
format. If kept in an electronic format, they must be protected against
unauthorized access, deletion, destruction, amendment, and disclosure.
The following records must be kept:
(1) Training. For each security training session, the date of each
session, duration of session, a description of the training, and a list
of attendees;
(2) Drills and exercises. For each drill or exercise, the date
held, a description of the drill or exercise, a list of participants,
and any best practices or lessons learned which may improve the FSP;
(3) Incidents and breaches of security. Date and time of
occurrence, location within the OCS facility, a description of the
incident or breach, the identity of the individual to whom it was
reported, and a description of the response;
(4) Changes in MARSEC Levels. Date and time of the notification
received, and the time of compliance with additional requirements;
(5) Maintenance, calibration, and testing of security equipment.
For each occurrence of maintenance, calibration, and testing, record
the date and time, and the specific security equipment involved;
(6) Security threats. Date and time of occurrence, how the threat
was communicated, who received or identified the threat, a description
of the threat, to whom it was reported, and a description of the
response;
(7) Declaration of Security (DoS). A copy of each DoS for at least
90 days after the end of its effective period; and
(8) Annual audit of the Facility Security Plan (FSP). For each
annual audit, a letter certified by the FSO stating the date the audit
was conducted.
Sec. 106.235 Maritime Security (MARSEC) Level coordination and
implementation.
(a) The OCS facility owner or operator must ensure the OCS facility
operates in compliance with the security requirements in this part for
the MARSEC Level in effect for the OCS facility.
(b) When notified of an increase in the MARSEC Level, the OCS
facility owner and operator must ensure:
(1) Vessels conducting operations with the OCS facility and vessels
scheduled to arrive at the OCS facility within 96 hours of the MARSEC
Level change are notified of the new MARSEC Level and the Declaration
of Security (DoS), if applicable, is revised as necessary;
(2) The OCS facility complies with the required additional security
measures within 12 hours; and
(3) The OCS facility reports compliance or noncompliance to the
cognizant District Commander.
(c) For MARSEC Levels 2 and 3, the Facility Security Officer (FSO)
must inform all OCS facility personnel about identified threats,
emphasize reporting procedures, and stress the need for increased
vigilance.
(d) An OCS facility owner or operator whose facility is not in
compliance with the requirements of this section must so inform the
cognizant District Commander and obtain approval prior to interfacing
with another vessel or prior to continuing operations.
Sec. 106.240 Communications.
(a) The Facility Security Officer (FSO) must have a means to
effectively notify OCS facility personnel of changes in security
conditions at the OCS facility.
(b) Communication systems and procedures must allow effective and
continuous communications between the OCS facility security personnel,
vessels interfacing with the OCS facility, with the cognizant District
Commander, and national and local authorities with security
responsibilities.
(c) Facility communications systems must have a backup means for
both internal and external communications.
Sec. 106.245 Procedures for interfacing with vessels.
The OCS facility owner or operator must ensure that there are
measures for interfacing with vessels at all MARSEC Levels.
Sec. 106.250 Declaration of Security (DoS).
(a) Each OCS facility owner or operator must ensure procedures are
established for requesting a DoS and for handling DoS requests from
vessels.
(b) At MARSEC Level 1, owners or operators of OCS facilities
interfacing with a manned vessel carrying Certain Dangerous Cargoes, in
bulk, must:
(1) Prior to the arrival of a vessel to the OCS facility, ensure
the Facility Security Officer (FSO) and Master, Vessel Security Officer
(VSO), or their designated representatives coordinate security needs
and procedures, and agree upon the contents of a DoS for the period of
time the vessel is at the OCS facility; and
(2) Upon the arrival of the vessel at the OCS facility, the FSO and
Master, VSO, or their designated representatives, must sign the written
DoS.
(c) Neither the OCS facility nor the vessel may embark or disembark
personnel, or transfer stores or industrial supplies until the DoS has
been signed.
(d) At MARSEC Levels 2 and 3, the FSOs of OCS facilities
interfacing with manned vessels subject to part 104 must sign and
implement DOSs.
(e) At MARSEC Levels 1 and 2, FSOs of OCS facilities that
frequently interface with the same vessel may implement a continuing
DoS for multiple visits, provided that:
(1) The DoS is valid for a specific MARSEC Level;
(2) The effective period at MARSEC Level 1 does not exceed 90 days;
and
(3) The effective period at MARSEC Level 2 does not exceed 30 days.
(f) When the MARSEC Level increases beyond that contained in the
DoS, the continuing DoS is void and a new DoS must be executed in
accordance with this section.
Sec. 106.255 Security systems and equipment maintenance.
(a) Security systems and equipment must be in good working order
and inspected, tested, calibrated, and maintained according to
manufacturers' recommendations.
(b) Security systems must be regularly tested in accordance with
the manufacturers' recommendations; noted deficiencies corrected
promptly; and the results recorded as required in Sec. 106.230(b)(5)
of this part.
(c) The Facility Security Plan (FSP) must include procedures for
identifying and responding to security system and equipment failures or
malfunctions.
Sec. 106.260 Security measures for access control.
(a) General. The OCS facility owner or operator must ensure the
implementation of security measures to:
(1) Deter the unauthorized introduction or dangerous substances and
devices, including any device intended to damage or destroy persons,
vessels, or the OCS facility;
(2) Secure dangerous substances and devices that are authorized by
the OCS facility owner or operator to be on board; and
(3) Control access to the OCS facility.
(b) The OCS facility owner or operator must ensure that:
(1) All locations providing means of access to the OCS facility
where access restrictions or prohibitions are applied for each security
level to prevent unauthorized access;
(2) The identification of the types of restriction or prohibition
to be applied and the means of enforcing them; and
(3) The means of identification required to allow individuals to
access
[[Page 39349]]
the OCS facility and remain on the OCS facility without challenge are
established.
(c) The OCS facility owner or operator must ensure that an
identification system is established for checking the identification of
OCS facility personnel or other persons seeking access to the OCS
facility that:
(1) Provides for identification of authorized and unauthorized
persons at any MARSEC Level;
(2) Is coordinated, when practicable, with identification systems
used by vessels conducting operations with the OCS facility;
(3) Is updated regularly; and
(4) Allows temporary or continuing access for OCS facility
personnel and visitors through the use of a badge or other system to
verify their identity.
(d) The OCS facility owner or operator must establish in the
approved Facility Security Plan (FSP) the frequency of application of
any access controls, particularly if they are to be applied on a random
or occasional basis.
(e) MARSEC Level 1. The OCS facility owner or operator must ensure
the following security measures are implemented at the facility:
(1) Screen persons and personal effects going aboard the OCS
facility for dangerous substances and devices at the rate specified in
the approved FSP;
(2) Conspicuously post signs that describe security measures
currently in effect and clearly stating that:
(i) Boarding an OCS facility is deemed valid consent to screening
or inspection; and
(ii) Failure to consent or submit to screening or inspection will
result in denial or revocation of authorization to be on board;
(3) Check the identification of any person seeking to board the OCS
facility, including OCS facility employees, passengers and crews of
vessels interfacing with the OCS facility, vendors, and visitors;
(4) Deny or revoke a person's authorization to be on board if the
person is unable or unwilling, upon the request of OCS facility
personnel, to establish his or her identity or to account for his or
her presence on board. Any such incident must be reported in compliance
with this part;
(5) Deter unauthorized access to the OCS facility;
(6) Identify access points that must be secured or attended to
deter unauthorized access;
(7) Lock or otherwise prevent access to unattended spaces that
adjoin areas to which passengers and visitors have access;
(8) Ensure OCS facility personnel are not required to engage in or
be subjected to screening, of the person or of personal effects, by
other OCS facility personnel, unless security clearly requires it;
(9) Provide a designated secure area on board, or in liaison with a
vessel interfacing with the OCS facility, for conducting inspections
and screening of people and their personal effects; and
(10) Respond to the presence of unauthorized persons on board.
(f) MARSEC Level 2. In addition to the security measures required
for MARSEC Level 1 in this section, at MARSEC Level 2, the OCS facility
owner or operator must also ensure the implementation of additional
security measures, as specified for MARSEC Level 2 in the approved FSP.
These additional security measures may include:
(1) Increasing the frequency and detail of screening of people and
personal effects embarking onto the OCS facility as specified for
MARSEC Level 2 in the approved FSP;
(2) Assigning additional personnel to patrol deck areas during
periods of reduced OCS facility operations to deter unauthorized
access;
(3) Limiting the number of access points to the OCS facility by
closing and securing some access points; or
(4) Deterring waterside access to the OCS facility, which may
include, providing boat patrols.
(g) MARSEC Level 3. In addition to the security measures required
for MARSEC Level 1 and MARSEC Level 2, the OCS facility owner or
operator must ensure the implementation of additional security
measures, as specified for MARSEC Level 3 in the approved FSP. The
additional security measures may include:
(1) Screening all persons and personal effects for dangerous
substances and devices;
(2) Being prepared to cooperate with responders;
(3) Limiting access to the OCS facility to a single, controlled
access point;
(4) Granting access to only those responding to the security
incident or threat thereof;
(5) Suspending embarkation and/or disembarkation of personnel;
(6) Suspending the onloading of stores or industrial supplies;
(7) Evacuating the OCS facility; or
(8) Preparing for a full or partial search of the OCS facility.
Sec. 106.265 Security measures for restricted areas.
(a) General. The OCS facility owner or operator must ensure the
designation of restricted areas in order to:
(1) Prevent or deter unauthorized access;
(2) Protect persons authorized to be in the OCS facility;
(3) Protect the OCS facility;
(4) Protect vessels using and serving the OCS facility;
(5) Protect sensitive security areas within the OCS facility;
(6) Protect security and surveillance equipment and systems; and
(7) Protect stores and industrial supplies from tampering.
(b) Designation of restricted areas. The OCS facility owner or
operator must ensure restricted areas are designated within the OCS
facility. They must also ensure that all restricted areas are clearly
marked and indicate that access to the area is restricted and that
unauthorized presence within the area constitutes a breach of security.
The OCS facility owner or operator may designate the entire OCS
facility as a restricted area. Restricted areas must include, as
appropriate:
(1) Areas containing sensitive security information;
(2) Areas containing security and surveillance equipment and
systems and their controls, and lighting system controls; and
(3) Areas containing critical OCS facility infrastructure
equipment, including:
(i) Water supplies;
(ii) Telecommunications;
(iii) Power distribution system;
(iv) Access points for ventilation and air-conditioning systems;
(v) Manufacturing areas and control rooms;
(vi) Areas designated for loading, unloading or storage of stores
and industrial supplies; and
(vii) Areas containing hazardous materials.
(c) The OCS facility owner or operator must ensure that the
Facility Security Plan (FSP) should include measures for restricted
areas to:
(1) Identify which OCS facility personnel are authorized to have
access;
(2) Determine which persons other than OCS facility personnel are
authorized to have access;
(3) Determine the conditions under which that access may take
place;
(4) Define the extent of any restricted area; and
(5) Define the times when access restrictions apply.
(d) MARSEC Level 1. At MARSEC Level 1, the OCS facility owner or
operator must ensure the implementation of security measures to prevent
unauthorized access or activities within the area. These security
measures may include:
(1) Restricting access to only authorized personnel;
[[Page 39350]]
(2) Securing all access points not actively used and providing
physical barriers to impede movement through the remaining access
points;
(3) Verifying the identification and authorization of all persons
seeking entry;
(4) Using security personnel, automatic intrusion detection
devices, surveillance equipment, or surveillance systems to detect
unauthorized entry to or movement within restricted areas; or
(5) Designating temporary restricted areas to accommodate OCS
facility operations. If temporary restricted areas are designated, the
FSP must include security requirements to conduct a security sweep of
the designated temporary restricted areas both before and after the
area has been established.
(e) MARSEC Level 2. In addition to the security measures required
for MARSEC Level 1 in this section, at MARSEC Level 2, the OCS facility
owner or operator must also ensure the implementation of additional
security measures, as specified for MARSEC Level 2 in their approved
FSP. These additional security measures may include:
(1) Enhancing the effectiveness of the barriers surrounding
restricted areas, for example, by the use of patrols or automatic
intrusion detection devices;
(2) Reducing the number of access points to restricted areas, and
enhancing the controls applied at the remaining accesses;
(3) Further restricting access to the restricted areas and
movements and storage within them;
(4) Using continuously monitored and recorded surveillance
equipment;
(5) Increasing the number and frequency of patrols, including the
use of waterborne patrols; or
(6) Restricting access to areas adjacent to the restricted areas.
(f) MARSEC Level 3. In addition to the security measures required
for MARSEC Level 1 and MARSEC Level 2, at MARSEC Level 3, the OCS
facility owner or operator must ensure the implementation of additional
security measures, as specified for MARSEC Level 3 in their approved
FSP. These additional security measures may include:
(1) Restricting access to additional areas;
(2) Prohibiting access to restricted areas; or
(3) Searching restricted areas as part of a security sweep of all
or part of the OCS facility.
Sec. 106.270 Security measures for delivery of stores and industrial
supplies.
(a) General. The OCS facility owner or operator must ensure that
security measures relating to the delivery of stores or industrial
supplies to the OCS facility are implemented to:
(1) Check stores or industrial supplies for package integrity;
(2) Prevent stores or industrial supplies from being accepted
without inspection;
(3) Deter tampering; and
(4) Prevent stores and industrial supplies from being accepted
unless ordered. For any vessels that routinely use an OCS facility, an
OCS facility owner or operator may establish and implement standing
arrangements between the OCS facility, its suppliers, and any vessel
delivering stores or industrial supplies regarding notification and the
timing of deliveries and their documentation.
(b) MARSEC Level 1. At MARSEC Level 1, the OCS facility owner or
operator must ensure the implementation of measures to:
(1) Inspect stores or industrial supplies before being accepted;
and
(2) Check that stores or industrial supplies match the order prior
to being brought on board.
(c) MARSEC Level 2. In addition to the security measures required
for MARSEC Level 1 in this section, at MARSEC Level 2, the OCS facility
owner or operator must also ensure the implementation of additional
security measures, as specified for MARSEC Level 2 in the approved
Facility Security Plan (FSP). These additional security measures may
include:
(1) Intensifying inspection of the stores or industrial supplies
during delivery; or
(2) Checking stores or industrial supplies prior to receiving them
on board.
(d) MARSEC Level 3. In addition to the security measures for MARSEC
Level 1 and MARSEC Level 2, at MARSEC Level 3, the OCS facility owner
or operator must ensure the implementation of additional security
measures, as specified for MARSEC Level 3 in the approved FSP. These
additional security measures may include:
(1) Checking all OCS facility stores or industrial supplies more
extensively;
(2) Restricting or suspending delivery of stores or industrial
supplies; or
(3) Refusing to accept stores or industrial supplies on board.
Sec. 106.275 Security measures for monitoring.
(a) General. (1) The OCS facility owner or operator must ensure the
implementation of security measures in this section and have the
capability to continuously monitor, through a combination of lighting,
watchkeepers, security guards, deck watches, waterborne patrols and
automatic intrusion-detection devices, or surveillance equipment as
specified in their approved Facility Security Plan (FSP), the:
(i) OCS facility;
(ii) Restricted areas on board the OCS facility; and
(iii) The area surrounding the OCS facility.
(2) The following must be considered when establishing the
appropriate level and location of lighting:
(i) OCS facility personnel should be able to detect activities on
and around OCS facility;
(ii) Coverage should facilitate personnel identification at access
points; and
(iii) Lighting effects, such as glare, and their impact on safety,
navigation, and other security activities.
(b) MARSEC Level 1. At MARSEC Level 1, the OCS facility owner or
operator must ensure the implementation of security measures, which may
be implemented in coordination with a vessel interfacing with the OCS
facility, to:
(1) Monitor the OCS facility, particularly OCS facility access
points and restricted areas;
(2) Be able to conduct emergency searches of the OCS facility;
(3) Ensure that equipment or system failures or malfunctions are
identified and corrected;
(4) Ensure that any automatic intrusion detection device, sets off
an audible or visual alarm, or both, at a location that is continually
attended or monitored; and
(5) Light deck and OCS facility access points during the period
between sunset and sunrise and periods of limited visibility
sufficiently to allow visual identification of persons seeking access
to the OCS facility.
(c) MARSEC Level 2. In addition to the security measures required
for MARSEC Level 1 in this section, at MARSEC Level 2, the OCS facility
owner or operator must also ensure the implementation of additional
security measures, as specified for MARSEC Level 2 in the approved FSP.
These additional security measures may include:
(1) Increasing the frequency and detail of security patrols;
(2) Using (if not already in use) or increasing the use of security
and surveillance equipment;
(3) Assigning additional personnel as security lookouts; or
(4) Coordinating with boat patrols, when provided.
[[Page 39351]]
(d) MARSEC Level 3. In addition to the security measures for MARSEC
Level 1 and MARSEC Level 2, at MARSEC Level 3, the OCS facility owner
or operator must ensure the implementation of additional security
measures, as specified for MARSEC Level 3 in the approved FSP. These
additional security measures may include:
(1) Cooperating with responders;
(2) Switching on all lights;
(3) Switching on all surveillance equipment capable of recording
activities on, or in the vicinity of, the OCS facility;
(4) Maximizing the length of time such surveillance equipment (if
not already in use) can continue to record; or
(5) Preparing for underwater inspection of the OCS facility.
Sec. 106.280 Security incident procedures.
For each MARSEC Level, the OCS facility owner or operator must
ensure the Facility Security Officer (FSO) and OCS facility security
personnel are able to:
(a) Respond to security threats or breaches of security and
maintain critical OCS facility and OCS facility-to-vessel interface
operations;
(b) Deny access to the OCS facility, except to those responding to
an emergency;
(c) Evacuate the OCS facility in case of security threats or
breaches of security; and
(d) Report security incidents as required in Sec. 101.305 of this
subchapter;
(e) Brief all OSC facility personnel on possible threats and the
need for vigilance, soliciting their assistance in reporting suspicious
persons, objects, or activities; and
(f) Secure non-critical operations in order to focus response on
critical operations.
Subpart C--Outer Continental Shelf (OCS) Facility Security
Assessment (FSA)
Sec. 106.300 General.
(a) The Facility Security Assessment (FSA) is a written document
that is based on the collection of background information, the
completion of an on-scene survey and an analysis of that information.
(b) A single FSA may be performed and applied to more than one OCS
facility to the extent they share physical characteristics, location,
and operations.
(c) Third parties may be used in any aspect of the FSA if they have
the appropriate skills and if the Company Security Officer (CSO)
reviews and accepts their work.
(d) Those involved in a FSA must be able to draw upon expert
assistance in the following areas, as appropriate:
(1) Knowledge of current and anticipated security threats and
patterns;
(2) Recognition and detection of dangerous substances and devices;
(3) Recognition of characteristics and behavioral patterns of
persons who are likely to threaten security;
(4) Recognition of techniques used to circumvent security measures;
(5) Methods used to cause a security incident;
(6) Effects of dangerous substances and devices on structures and
essential services;
(7) OCS facility security requirements;
(8) OCS facility and vessel interface business practices;
(9) Contingency planning, emergency preparedness and response;
(10) Physical security requirements;
(11) Radio and telecommunications systems, including computer
systems and networks;
(12) Marine or civil engineering; and
(13) OCS facility and vessel operations.
Sec. 106.305 Facility Security Assessment (FSA) requirements.
(a) Background. The OCS facility owner or operator must ensure that
the following background information, if applicable, is provided to the
person or persons who will conduct the assessment:
(1) The general layout of the OCS facility, including:
(i) The location of each access point to the OCS facility;
(ii) The number, reliability, and security duties of OCS facility
personnel;
(iii) Security doors, barriers, and lighting;
(iv) The location of restricted areas;
(v) The emergency and stand-by equipment available to maintain
essential services;
(vi) The essential maintenance equipment and storage areas;
(vii) Location of escape and evacuation routes and assembly
stations; and
(viii) Existing security and safety equipment for protection of
personnel;
(2) Response procedures for fire or other emergency conditions;
(3) Procedures for monitoring OCS facility and vessel personnel;
(4) Procedures for controlling keys and other access prevention
systems;
(5) Response capability for security incidents;
(6) Threat assessments, including the purpose and methodology of
the assessment, for the OCS facility's location;
(7) Previous reports on security needs; and
(8) Any other existing security procedures and systems, equipment,
communications, and OCS facility personnel.
(b) On-scene survey. The OCS facility owner or operator must ensure
that an on-scene survey of each OCS facility is conducted. The on-scene
survey examines and evaluates existing OCS facility protective
measures, procedures, and operations to verify or collect the
information required in paragraph (a) of this section.
(c) Analysis and recommendations. In conducting the FSA, the OCS
owner or operator must ensure that the Company Security Officer (CSO)
analyzes the OCS facility background information and the on-scene
survey, and considering the requirements of this part, provides
recommendations to establish and prioritize the security measures that
should be included in the FSP. The analysis must consider:
(1) Each vulnerability found during the on-scene survey, including
but not limited to:
(i) Access to the OCS facility;
(ii) Structural integrity of the OCS facility;
(iii) Existing security measures and procedures, including
identification systems;
(iv) Existing security measures and procedures relating to
essential services;
(v) Measures to protect radio and telecommunication equipment,
including computer systems and networks;
(vi) Existing agreements with private security companies;
(vii) Any conflicting policies between safety and security measures
and procedures;
(viii) Any conflicting OCS facility operations and security duty
assignments;
(ix) Any deficiencies identified during daily operations or
training and drills; and
(x) Any deficiencies identified following security incidents or
alerts, the report of security concerns, the exercise of control
measures, or audits.
(2) Possible security threats, including but not limited to:
(i) Damage to or destruction of the OCS facility or of a vessel
adjacent to the OCS facility;
(ii) Smuggling dangerous substances and devices;
(iii) Use of a vessel interfacing with the OCS facility to carry
those intending to cause a security incident and their equipment;
[[Page 39352]]
(iv) Use of a vessel interfacing with the OCS facility as a weapon
or as a means to cause damage or destruction; and
(v) Nuclear, radiological, explosive, biological, and chemical
attack;
(3) Threat assessments by Government agencies;
(4) Vulnerabilities, including human factors, in the OCS facility's
infrastructure, policies and procedures;
(5) Any particular aspects of the OCS facility, including the
vessels that interface with the OCS facility, which make it likely to
be the target of an attack;
(6) Likely consequences, in terms of loss of life, damage to
property, or economic disruption, of an attack on or at the OCS
facility; and
(7) Locations where access restrictions or prohibitions will be
applied for each MARSEC Level.
(d) FSA Report. (1) The OCS facility owner or operator must ensure
that a written FSA report is prepared and included as a part of the
FSP. The report must contain:
(i) A summary of how the on-scene survey was conducted;
(ii) A description of existing security measures, including
inspection, control and monitoring equipment, personnel identification
documents and communication, alarm, lighting, access control, and
similar systems;
(iii) A description of each vulnerability found during the on-scene
survey;
(iv) A description of security measures that could be used to
address each vulnerability.
(v) A list of the key OCS facility operations that are important to
protect; and
(vi) A list of identified weaknesses, including human factors, in
the infrastructure, policies, and procedures of the OCS facility.
(2) A FSA report must describe the following elements within the
OCS facility:
(i) Physical security;
(ii) Structural integrity;
(iii) Personnel protection systems;
(iv) Procedural policies;
(v) Radio and telecommunication systems, including computer systems
and networks; and
(vi) Essential services.
Sec. 106.310 Submission requirements.
(a) A completed FSA report must be submitted with the Facility
Security Plan (FSP) required in Sec. 106.405 of this part.
(b) An OCS facility owner or operator may generate and submit a
report that contains the FSA for more than one OCS facility subject to
this part, to the extent that they share similarities in physical
characteristics, location and operations.
Subpart D--Outer Continental Shelf (OCS) Facility Security Plan
(FSP)
Sec. 106.400 General.
(a) The OCS facility owner or operator must ensure the FSO develops
and implements a Facility Security Plan (FSP) for each OCS facility for
which he or she is designated as FSO. The FSP:
(1) Must identify the FSO by name or position and provide 24-hour
contact information;
(2) Must be written in English;
(3) Must address each vulnerability identified in the Facility
Security Assessment (FSA);
(4) Must describe security measures for each MARSEC Level; and
(5) May cover more than one OCS facility to the extent that they
share similarities in physical characteristics and operations, if
authorized and approved by the cognizant District Commander.
(b) The FSP must be submitted for approval to the cognizant
District Commander in a written or electronic format in a manner
prescribed by the cognizant District Commander.
(c) The FSP is sensitive security information and must be protected
in accordance with 49 CFR part 1520.
(d) If the FSP is kept in an electronic format, procedures must be
in place to prevent its unauthorized deletion, destruction, or
amendment.
Sec. 106.405 Format and content of the Facility Security Plan (FSP).
(a) An OCS facility owner or operator must ensure that the FSP
consists of the individual sections listed in this paragraph (a). If
the FSP does not follow the order as it appears in the list, the OCS
facility owner or operator must ensure that the FSP contains an index
identifying the location of each of the following sections:
(1) Security organization of the OC facility;
(2) Personnel training;
(3) Drills and exercises;
(4) Records and documentation;
(5) Response to change in MARSEC Level;
(6) Procedures for interfacing with vessels;
(7) Declaration of Security (DoS);
(8) Communications;
(9) Security systems and equipment maintenance;
(10) Security measures for access control;
(11) Security measures for restricted areas;
(12) Security measures for delivery of stores and industrial
supplies;
(13) Security measures for monitoring;
(14) Security incident procedures;
(15) Audits and FSP amendments; and
(16) Facility Security Assessment (FSA) report.
(b) The OCS facility owner or operator must ensure that the FSP
describes in detail how each of the requirements of subpart B of this
part will be met.
Sec. 106.410 Submission and approval.
(a) On or before December 29, 2003, each OCS facility owner or
operator must either:
(1) Submit one copy of the Facility Security Plan (FSP) for review
and approval to the cognizant District Commander and a letter
certifying that the FSP meets the applicable requirements of this part;
or
(2) If implementing a Coast Guard approved Alternative Security
Program, meet the requirements in Sec. 101.120(b) of this subchapter.
(b) OCS facilities built on or after July 1, 2004, must comply with
the requirements in paragraph (a) of this section 60 days prior to
beginning operations.
(c) The cognizant District Commander will examine each submission
for compliance with this part, and return to the submitter either:
(1) A letter of approval, stating acceptance of the FSP and
specifying any conditions of approval;
(2) An acknowledgement letter stating that the Coast Guard is
currently reviewing the FSP submitted for approval, and that the OCS
facility may continue to operate so long as the OCS facility remains in
compliance with the submitted FSP; or
(3) A disapproval letter specifying the reasons for disapproval and
the submitted FSP.
(d) An FSP may be submitted and approved to cover more than one OCS
facility where they share similarities in physical characteristics,
location, and operations.
(e) Each OCS facility owner or operator that submits one FSP to
cover two or more OCS facilities of similar design, location, and
operation must address OCS facility-specific information that includes
the physical and operational characteristics of each OCS facility.
(f) An FSP that is approved by the cognizant District Commander is
valid for 5 years from the date of its approval. The cognizant District
Commander will issue an approval letter, as indicated in Sec. 106.115
of this part.
[[Page 39353]]
Sec. 106.415 Amendment and audit.
(a) Amendments. (1) Amendments to a Facility Security Plan (FSP)
that are approved by the cognizant District Commander may be initiated
by:
(i) The OCS facility owner or operator; or
(ii) The cognizant District Commander, upon a determination that an
amendment is needed to maintain the OCS facility's security. The
cognizant District Commander will give the OCS facility owner or
operator written notice and request that the OCS facility owner or
operator propose amendments addressing any matters specified in the
notice. The OCS facility owner or operator will have at least 60 days
to submit its proposed amendments. Until amendments are approved, the
OCS facility owner or operator shall ensure temporary security measures
are implemented to the satisfaction of the cognizant District
Commander.
(2) Proposed amendments must be sent to the cognizant District
Commander. If initiated by the OCS facility owner or operator, the
proposed amendment must be submitted at least 30 days before the
amendment is to take effect unless the cognizant District Commander
allows a shorter period. The cognizant District Commander will approve
or disapprove the proposed amendment in accordance with Sec. 106.410
of this subpart.
(3) If the owner or operator has changed, the Facility Security
Officer (FSO) must amend the Facility Security Plan (FSP) to include
the name and contact information of the new OCS facility owner(s) or
operator(s) and submit the affected portion of the FSP for review and
approval in accordance with Sec. 106.410 of this subpart.
(b) Audits. (1) The FSO must ensure an audit of the FSP is
performed annually, beginning no later than one year from the initial
date of approval and attach a letter to the FSP certifying that the FSP
meets the applicable requirements of this part.
(2) If there is a change in ownership or operations of the OCS
facility, or if there have been modifications to the OCS facility, the
FSP must be audited including but not limited to physical structure,
emergency response procedures, security measures, or operations.
(3) Auditing the FSP as a result of modifications to the OCS
facility may be limited to those sections of the FSP affected by the
OCS facility modifications.
(4) Unless impracticable due to the size and nature of the company
or the OCS facility, personnel conducting internal audits of the
security measures specified in the FSP or evaluating its implementation
must:
(i) Have knowledge of methods of conducting audits and inspections,
and control and monitoring techniques;
(ii) Not have regularly assigned security duties; and
(iii) Be independent of any security measures being audited.
(5) If the results of an audit require an amendment of either the
Facility Security Assessment (FSA) or FSP, the FSO must submit, in
accordance with Sec. 106.410 of this subpart, the amendments to the
cognizant District Commander for review and approval no later than 30
days after completion of the audit and a letter certifying that the
amended FSP meets the applicable requirements of this part.
Dated: June 23, 2003.
Thomas H. Collins,
Admiral, Coast Guard Commandant.
[FR Doc. 03-16190 Filed 6-27-03; 8:45 am]
BILLING CODE 4910-15-P
[Federal Register: July 1, 2003 (Volume 68, Number 126)]
[Rules and Regulations]
[Page 39353-39368]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr01jy03-19]
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DEPARTMENT OF HOMELAND SECURITY
Coast Guard
33 CFR Parts 26, 161, 164, and 165
[USCG-2003-14757]
RIN 1625-AA67
Automatic Identification System; Vessel Carriage Requirement
AGENCY: Coast Guard, DHS.
ACTION: Temporary interim rule with request for comments and notice of
meeting.
-----------------------------------------------------------------------
SUMMARY: The Coast Guard is amending port and waterway regulations to
reflect vessel carriage requirements and establish technical and
performance standards for an Automatic Identification System (AIS).
This interim rule will implement the AIS carriage requirements of the
Maritime Transportation Security Act of 2002 (MTSA) and the
International Maritime Organization requirements adopted under
International Convention for the Safety of Life at Sea, 1974, (SOLAS)
as amended. The changes will require AIS on all vessels subject to
SOLAS, Vessel Traffic Service Users and certain other commercial
vessels. The rule will facilitate vessel-to-vessel and vessel-to-shore
communications; it will enhance good order and predictability on the
waterways, promote safe navigation; and contribute to maritime domain
awareness to protect the security of our nation's ports and waterways.
This rule is one of six interim rules in today's Federal Register
addressing the requirements for maritime security mandated by the MTSA.
These six interim rules implement national maritime security
initiatives concerning general provisions, Area Maritime Security
(ports), vessels, facilities, Outer Continental Shelf facilities, and
the Automatic Identification System. They align domestic maritime
security requirements with those of the International Ship and Port
Facility Security Code and recent amendments to SOLAS. This rule will
benefit persons and property by requiring that certain vessels carry
AIS to increase maritime domain awareness and help detect, and respond
to unlawful acts that threaten vessels. To best understand these
interim rules, first read the one titled ``Implementation of National
Maritime Security Initiatives.'' (See USCG-2003-14792).
In view of the benefit-cost ratio presented herein, the Coast Guard
will share with Congress any significant information provided by the
public that addresses the reasonableness of implementing the statute.
DATES: Effective date. This interim rule is effective July 1, 2003. The
Coast Guard intends to finalize this rule by November 25, 2003.
Material incorporated by reference was approved by the Director of the
Federal Register as of July 1, 2003.
Comments. Comments and related material must reach the Docket
Management Facility on or before July 31, 2003.
Meeting. A public meeting will be held on July 23, 2003 from 9 a.m.
to 5 p.m., in Washington, DC.
ADDRESSES: Comments. To ensure your comments and related material are
not entered more than once in the docket, please submit them by only
one of the following means:
(1) Electronically to the Docket Management System at http://dms.dot.gov
.
(2) By mail to the Docket Management Facility (USCG-2003-14757) at
the U.S. Department of Transportation, room PL-401, 400 Seventh Street
SW., Washington, DC 20590-0001.
(3) By fax to the Docket Management Facility at 202-493-2251.
(4) By delivery to room PL-401 on the Plaza level of the Nassif
Building, 400 Seventh Street SW., Washington, DC between 9 a.m. and 5
p.m., Monday through Friday, except Federal holidays. The telephone
number is 202-366-9329.
[[Page 39354]]
Meeting. A public meeting will be held on July 23, 2003 in
Washington, DC at the Grand Hyatt Washington, DC, 1000 H Street, NW.,
Washington, DC 20001.
Availability. 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 interim
rule, contact Mr. Jorge Arroyo, Office of Vessel Traffic Management (G-
MWV), Coast Guard by telephone 202-267-1103, toll-free telephone 1-800-
842-8740 ext. 7-1103, or electronic mail msregs@comdt.uscg.mil. For
questions on viewing or submitting material to the docket, call Ms.
Dorothy Beard, Chief, Dockets, Department of Transportation, at 202-
366-5149.
SUPPLEMENTARY INFORMATION: Due to the short timeframe given to
implement these National Maritime Transportation Security initiatives,
as directed by the Maritime Transportation Security Act (MTSA) of 2002
(MTSA, Pub. L. 107-295, 116 STAT. 2064), and to ensure all comments are
in the public venue for these important rulemakings, we are not
accepting comments containing protected information for these interim
rules. We request you submit comments, as explained in the Request for
Comments section below, and discuss your concerns or support in a
manner that is not security sensitive. We also request that you not
submit proprietary information as part of your comment.
The Docket Management Facility maintains the public docket for this
rulemaking. Comments and material received from the public, as well as
documents mentioned in this preamble as being available in the docket,
will be available for inspection or copying at room PL-401 on the Plaza
level of the Nassif Building, 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
.
Electronic forms of all comments received into any of our dockets
can be searched by the name of the individual submitting the comment
(or signing the comment, if submitted on behalf of an association,
business, labor unit, etc.) and is open to the public without
restriction. You may also review the Department of Transportation's
complete Privacy Act Statement published in the Federal Register on
April 11, 2000 (65 FR 19477-78), or you may visit http://dms.dot.gov/.
Request for Comments
We encourage you to participate in this rulemaking by submitting
comments and related material. Your comments will be considered for the
final rule we plan to issue before November 25, 2003, to replace this
interim rule. If you choose to comment on this rulemaking, please
include your name and address, identify the specific docket number for
this interim rule (USCG-2003-14757), indicate the specific heading of
this document to which each comment applies, and give the reason for
each comment. If you have comments on another rule please submit those
comments in a separate letter to the docket for that rulemaking. You
may submit your comments and material by mail, hand delivery, fax, or
electronic means to the Docket Management Facility at the address under
ADDRESSES; but please submit your comments and material by only one
means. If you submit them by mail or hand delivery, submit them in an
unbound format, no larger than 8\1/2\ by 11 inches, suitable for
copying and electronic filing. If you submit them by mail and would
like to know that they reached the Facility, please enclose a stamped,
self-addressed postcard or envelope. We will consider all comments and
material received during the comment period, and we may amend this rule
and the final rule that replaces it in view of them.
Note, matters pertaining to AIS licensing, equipment certification,
and frequencies are subject to Federal Communications Commission
regulations and are not addressed in this rule, see FCC Public Notice
DA 02-1362 in the docket for further information.
Public Meeting
We will hold a public meeting on July 23, 2003, in Washington, DC
at the Grand Hyatt Hotel, at the address listed under ADDRESSES. The
meeting will be from 9 a.m. to 5 p.m. to discuss this Automatic
Identification System (AIS) rulemaking in addition to the other five
maritime security rulemakings, found elsewhere in today's Federal
Register. In addition, you may submit a request for other public
meetings to the Docket Management Facility at the address under
ADDRESSES explaining why another one would be beneficial. If we
determine that other meetings would aid this rulemaking, we will hold
them at a time and place announced by a later notice in the Federal
Register.
Regulatory Information
We did not publish a notice of proposed rulemaking for this
rulemaking and are making this interim rule effective upon publication.
Section 102(d)(1) of the Maritime Transportation Security Act of 2002
(MTSA, Public Law 107-295, 116 Stat. 2064) requires the publication of
an interim rule as soon as practicable without regard to the provisions
of chapter 5 of title 5, U.S. Code (Administrative Procedure Act). The
Coast Guard finds that harmonization of U.S. regulations with maritime
security measures adopted by the International Maritime Organization
(IMO) in December 2002, and the need to institute measures for the
protection of U.S. maritime security as soon as practicable, furnish
good cause for this interim rule to take effect immediately under both
the Administrative Procedure Act and section 808 of the Congressional
Review Act.
Recently Enacted Legislation
The provisions set forth in this rulemaking and the associated
regulatory assessment take into account: (1) The recently enacted MTSA,
which requires an AIS on most commercial vessels on all navigable
waters, and (2) the International Convention for the Safety of Life at
Sea, 1974, (SOLAS) amendments from the December 2002 International
Maritime Organization (IMO) Diplomatic Conference. This rule will amend
AIS standards to those adopted by the IMO and SOLAS and defined in the
International Telecommunication Union Radiocommunication Bureau (ITU-R)
Recommendation ITU-R M.1371-1 and International Electrotechnical
Commission (IEC) IEC 61993-2.
The recent SOLAS AIS amendments accelerate the implementation
schedule, as discussed below under ``Background and Purpose-
Acceleration of SOLAS AIS Implementation.'' Copies of the MTSA and the
SOLAS AIS amendments are available in the docket as indicated under
ADDRESSES.
Public Meetings for Rulemakings Related to Vessel Traffic Service
The Coast Guard held a public meeting on October 28, 1998, in New
Orleans, Louisiana. The meeting was announced in a notice published in
the Federal Register on September 18, 1998 (63 FR 49939). This meeting
gave the Coast Guard the opportunity to discuss the Vessel Traffic
Service (VTS) concept on the Lower Mississippi River and the envisioned
use of automatic
[[Page 39355]]
identification system technology in the VTS. At this 1998 meeting, we
reported the preliminary results of tests conducted on the Lower
Mississippi River using precursor AIS. The proposed VTS on the Lower
Mississippi River is not discussed in this rulemaking because it is the
subject of a separate rulemaking titled ``Vessel Traffic Service Lower
Mississippi River'' (65 FR 24616, April 26, 2000; docket [USCG-1998-
4399]). We copied those comments regarding the AIS that were submitted
to the VTS Lower Mississippi River docket and have placed those copies
in the docket for this interim rule. However, most of those comments
are not addressed herein either because they are no longer applicable
or because they address a previous version of AIS and not the version
required by this interim rule. We encourage all those who commented
previously on this rulemaking to comment on the new provisions set
forth in this rule. We will address those comments along with all other
comments submitted in direct response to this interim rule in the final
rule.
Over the past few years, the Coast Guard has made AIS presentations
at various public forums including Federal advisory committee meetings
(Towing Safety Advisory Committee, National Offshore Safety Advisory
Committee, Houston-Galveston Navigation Safety Advisory Committee and
Navigation Safety Advisory Council). Moreover, the AIS-based Ports and
Waterways Safety System project being installed at the VTS Lower
Mississippi River is regularly discussed at the Lower Mississippi River
Waterway Safety Advisory Committee meetings.
The Houston-Galveston Navigation Safety Advisory Committee and
Lower Mississippi River Waterway Safety Advisory Committee are
Federally chartered advisory committees charged with making
recommendations to the Coast Guard on matters relating to the safe and
efficient transit of vessels on their respective waterways. These open
forums have afforded the public, particularly those in the Gulf of
Mexico and Mississippi River areas, the opportunity to comment on both
VTS Lower Mississippi River and AIS issues. The public's input will be
taken into account throughout this rulemaking. Elsewhere in today's
Federal Register, we have published a notice requesting comments on AIS
carriage for vessels outside VTS and Vessel Movement Reporting System
(VMRS) areas that are not on an international voyage (See USCG-2003-
14878).
Background and Purpose
Section 5004 of the Oil Pollution Act of 1990, as codified in 33
U.S.C. 2734, directed the Coast Guard to operate additional equipment,
as necessary, to provide surveillance of tank vessels transiting Prince
William Sound, Alaska. We have done so since 1994 through a system then
known as ``Automated Dependent Surveillance.'' Advances have taken
place with this technology, now referred to as the AIS. Section 102 of
the MTSA mandates that AIS be installed and operating on most
commercial and passenger vessels on all navigable waters of the United
States.
The version of AIS required by this interim rule automatically
broadcasts vessel and voyage-related information that is received by
other AIS-equipped ships and shore stations. In the ship-to-shore mode,
AIS enhances maritime domain awareness and allows for the efficient
exchange of vessel traffic information that previously was only
available via voice communications with a VTS. In ship-to-ship mode, an
AIS provides essential information to other vessels, such as name,
position, course, and speed that is not otherwise readily available
onboard vessels. In either mode, an AIS enhances the mariner's
situational awareness, makes possible the accurate exchange of
navigational information, mitigates collision through reliable passing
arrangements, and facilitates vessel traffic management, while
simultaneously reducing very high frequency voice transmissions.
AISs have achieved acceptance through worldwide adoption of
performance and technical standards developed to ensure commonality,
universality, and inter-operability. These recommendations have now
been established and adopted as standards by the following diverse
international bodies: the IMO, the International Telecommunications
Union (ITU), and the International Electrotechnical Commission (IEC).
Further, installation of such equipment is required on vessels subject
to SOLAS, as amended.
Applicability and Compliance Dates
This interim rule requires the following vessels to install and
operate AIS:
[sbull] Vessels on international voyages subject to SOLAS under the
schedule set forth in SOLAS chapter V, regulation 19.2.4;
[sbull] Vessels of 65 feet or more in length, not subject to SOLAS
or transiting a VTS area, in commercial service on international
voyages by December 31, 2004; and
[sbull] The following VTS or VMRS users:
[sbull] Self-propelled vessels of 65 feet or more in length, in
commercial service;
[sbull] Towing vessel 26 feet or more in length and more than 600
horsepower;
[sbull] Vessels of 100 gross tons or more carrying one or more
passengers for hire; and
[sbull] Passenger vessels certificated to carry 50 or more
passengers for hire.
The VTS and VMRS users must comply by: December 31, 2003, within
VTS St. Marys River; by July 1, 2004, within VTS Berwick Bay, VMRS Los
Angeles/Long Beach, VTS Lower Mississippi River, VTS Port Arthur and
VTS Prince William Sound; by December 31, 2004, within VTS Houston-
Galveston, VTS New York, VTS Puget Sound, and VTS San Francisco.
Note that the compliance dates set forth in SOLAS differ from those
enacted in the MTSA. In this rule, where the dates differ, we have
sided with the internationally agreed upon dates of SOLAS, particularly
regarding tankers built before July 1, 2002, where the compliance date
is the first survey of these vessels for safety equipment on or after
July 1, 2003, which could extend compliance to July 1, 2004 (one year
later than the MTSA).
However, we accelerated AIS implementation from the revised SOLAS
schedule to meet other international obligations. As of March 25, 2003,
the Saint Lawrence Seaway Development Corporation, under an
international agreement with the St. Lawrence Seaway Management
Corporation of Canada, has required AIS on vessels transiting St.
Lawrence Seaway waters from St. Lambert, Quebec to Long Point, in mid-
Lake Erie. (68 FR 9549, February 28, 2003). We anticipate VTS St. Marys
River will be AIS-capable by December 31, 2003, and at that time we
will require all VTS users, including SOLAS vessels, transiting the
Seaway and the VTS to continue AIS operation through their entire
transit.
This acceleration also follows our plan to require AIS use in areas
where we will have an infrastructure to fully monitor and manage the
AIS data link and ensure accurate maritime domain awareness. That is
why we have, initially, decided to implement AIS predominately in VTS
and VMRS areas as they become equipped with AIS capability.
The MTSA calls for AIS use in all navigable waters, but allows this
requirement to be waived if the Secretary finds that an AIS is not
needed for safe navigation on specified navigable waters. The Coast
Guard
[[Page 39356]]
intends to carry out this mandate completely; however, at this early
stage of AIS deployment, the Coast Guard deems it important to fully
require an AIS, particularly in congested waters, where it has the
capability to manage the AIS VHF data link. An AIS permits shore-side
base stations to perform various functions to manage the AIS data link,
such as changing operating frequencies, power outputs, and reporting
rates, should the network require it. This action may be necessary to
ensure safe navigation. The Coast Guard anticipates having these
facilities in most of our major waterways; however, until then it
intends to proceed on a rollout plan by waterway. In a notice and
request for comments published elsewhere in today's Federal Register,
the Coast Guard is seeking comments on expansion of AIS implementation
to vessels not on international voyages outside VTS and VMRS areas.
Acceleration of SOLAS AIS Implementation
The December 2000 Amendments to SOLAS provided for a phased-in AIS
carriage schedule under chapter V, regulation 19.2.4 that started July
1, 2002, and extended to July 1, 2008, depending on ship type and
tonnage. After September 11, 2001, and in an effort to improve safety,
security and maritime domain awareness worldwide, the United States
initiated action through IMO to accelerate this implementation
schedule.
In November 2001, the IMO Assembly, on the recommendation of the
United States and numerous other nations, adopted resolution A.924(22)
with the goals of enhancing maritime security. This resolution
instructed the Organization to develop appropriate measures to improve
maritime security. Based upon a recommendation by the United States,
the Assembly also agreed to convene an international conference in
December 2002 to formally adopt whatever measures were developed.
In February 2002, an Intersessional Working Group of the IMO
Maritime Safety Committee (MSC) met and recommended that the AIS
carriage timeline be accelerated, in addition to several other
security-related initiatives, which are discussed in separate interim
rules published elsewhere in today's Federal Register.
In May 2002, the Maritime Safety Committee met and accepted
amendments to SOLAS related to the accelerated AIS implementation
(including several phase-in options), for consideration at a December
2002 Diplomatic Conference. The Diplomatic Conference convened in
December 2002 and adopted the phased-in AIS carriage schedule as
described in Table 1 below.
Table 1.--SOLAS AIS Schedule (Chapter V, Regulation 19.2.4) for Vessels on International Voyages
----------------------------------------------------------------------------------------------------------------
Constructed Type of vessel Implementation date
----------------------------------------------------------------------------------------------------------------
On or after July 1, 2002..................... All............................. July 1, 2002.
Before July 1, 2002.......................... Passenger ships (carrying 12 or July 1, 2003.
more passengers).
Tankers......................... First survey for safety
equipment on or after July 1,
2003
Ships, other than passenger July 1, 2004.
ships and tankers, greater than
or equal to 50,000 gross
tonnage.
Ships, other than passenger First safety equipment survey
ships and tankers, greater than after July 1, 2004, or by
or equal to 300, but less than December 31, 2004, whichever
50,000 gross tonnage. occurs earlier.
----------------------------------------------------------------------------------------------------------------
This interim rule implements this revised SOLAS schedule, as it
concerns vessels on international voyage, and through a separate notice
titled ``Automatic Identification System; Expansion of Carriage
Requirements for U.S. Waters'' [USCG-2003-14878], published elsewhere
in today's Federal Register, we seek comments regarding vessels solely
engaged in domestic voyages and not transiting a VMRS.
The Coast Guard received some unfavorable comments regarding AIS
carriage (see USCG-1998-4399-3 at http://dms.dot.gov) in the VTS Lower
Mississippi River rulemaking docket (USCG-1998-4399). There were also
AIS comments made during the Public Meetings on Maritime Security,
discussed in the preamble to the interim rule titled ``Implementation
of National Maritime Security Initiatives,'' published elsewhere in
today's Federal Register. The Coast Guard is of the strong opinion that
an AIS should be installed not only on SOLAS vessels, but also on most
commercial vessels as soon as possible, particularly in vessel traffic
monitoring areas, such as VTS and VMRS areas. Thus, the Coast Guard is
requiring AIS carriage for non-SOLAS vessels while navigating these
areas. There is a general discussion of comments on AIS carriage
included in the preamble for the interim rule titled ``Implementation
of National Maritime Security Initiatives,'' published elsewhere in
today's Federal Register.
Automatic Identification System (AIS)
The AIS integrates a number of technologies to enhance the safe and
efficient navigation of ships, protection of the environment, operation
of VTS, and maritime domain awareness. AIS does this by providing ship-
to-ship information for collision avoidance, and ship-to-shore
information about a ship and its cargo for traffic management and
increased maritime awareness. Included in these technologies are Global
Navigation Satellite System, frequency agile digital very high
frequency transceivers, self-organizing communications protocols, and
an architecture that allows input from and output to other shipborne
navigational equipment (for example, input from rate of turn indicator
and heading sensor; output to radar or electronic chart display
systems). Data from these technologies can be tailored to the mariner's
needs and desires. The automated operation of the AIS and the reduction
of voice interactions should enhance mariners' ability to navigate.
More than 5 million voice reports a year will be eliminated in existing
VTS areas alone by using AIS.
The AIS transmits and receives vessel information in near real-time
from other ships and rebroadcasts from shore stations, such as--
(1) Static Information--Vessel call sign, name, IMO identification
number, dimensions, type;
(2) Voyage-Related Information--Draft, cargo type, destination, and
estimated time of arrival; and
(3) Dynamic Information--Time in Universal Time Coordinated,
latitude/longitude position, course over ground, speed over ground,
heading, rate of turn, navigational status.
The AIS provides mariners with accurate navigation information. In
addition, shore stations will be able to
[[Page 39357]]
relay pertinent navigational data from other sources, such as the
National Oceanic and Atmospheric Administration's Physical
Oceanographic Real Time System. An AIS enhances the mariner's
situational awareness, permits more effective and reliable passing
arrangements as intended by the Vessel Bridge-to-Bridge Radiotelephone
Act (33 U.S.C. 1201-1208) and the Inland Navigational Rules (33 U.S.C.
2001-2038), and provides the Coast Guard with a comprehensive and
informative traffic image not possible with radar or video
surveillance.
AIS Testing
AIS tests and trials have been conducted by national maritime
safety administrations in a number of locations around the world
including Germany, Sweden, Finland, Singapore, South Korea, British
Columbia, the Panama Canal, the St. Lawrence Seaway, the Baltic Sea,
South Africa, and the Rhine River. The Coast Guard has conducted
numerous tests and simulations to identify various technical and
operational issues, such as the shoreside communications infrastructure
required to support full duplex operations; unit reliability,
development of operational procedures appropriate to an AIS-based VTS;
and identification of user requirements for graphical display
functionality.
In August 1998, the Coast Guard leased 50 early-generation (Digital
Selective Calling (DSC) ITU-R M.825-3 version) transponders that were
evaluated aboard a variety of platforms. The principal purpose of this
testing was to evaluate the performance of a DSC-based system and
identify any operational and technical problems that would have to be
resolved before implementation of the latest AIS technology (ITU-R M.
1371-1 version).
Existing AIS-Like Systems
This is not the first experience with AISs for the Coast Guard and
the maritime industry. Since July 1994, tankers operating in the Prince
William Sound area have carried DSC transponders that report to the
VTS.
The DSC transponder system used in Prince William Sound is a one-
way system of limited capability, flexibility and potential. The VTS at
Prince William Sound remains dependent on radar and very high frequency
voice radio communications and is, in essence, a traditional VTS
augmented by a DSC system. Despite the reduced capability of this type
of transponder, it has proven valuable and has demonstrated its
potential as the foremost VTS surveillance sensor.
The key difference between the DSC-based identification system used
in VTS Prince William Sound and the one required by this interim rule
is that the former only provides ship-to-shore (VTS) transmissions of
position data. The AIS technology being required ensures two-way
communication, radio frequency agility, greater capacity, non-
proprietary display interface standards, and a host of display
possibilities, including Electronic Chart Display Information System,
Automatic Radar Plotting Aid (ARPA), non-ARPA radar, Electronic Chart
System, Integrated Navigation System, or other proprietary graphical
user interfaces. See Technical Comparison Table 2.
Table 2.--Technical Comparison of ITU-R M.825 Versus ITU-R M.1371-1
Based AIS.
------------------------------------------------------------------------
Digital selective Broadcast automatic
System characteristics calling radio identification
transponder system
------------------------------------------------------------------------
Technical Standards......... ITU-R M.825-3/IEC ITU-R M.1371-1/IEC
61993-1. 61993-2.
Intended Use................ Ship-to-shore....... Ship-to-ship; ship-
to-shore; shore-to-
ship.
Message Schedule............ Shore synchronized.. Coordinated and
Synchronized. Self-
organizing timeslot
procedure.
Frequency Agility........... Full very high DSC reception locked
frequency spectrum to very high
availability. frequency Ch. 70
only. DSC
broadcasts and TDMA
reception and
broadcasts have
full very high
frequency spectrum
availability.
Radio Channels.............. One DSC (Simplex or One DSC (Simplex).
Duplex). Two TDMA (Simplex
or Duplex).
Permissive Channel Usage No more than 15% on No more than 7.5% on
(loading). Channel 70. Up to Channel 70. In
100% on dedicated excess of 100% on
channel. two dedicated
channels (AIS1/
AIS2).
Effective Data Rate......... 600 bits/second..... Reception: 19,200
bits/second.
Broadcast: 9,600
bits/second.
System Capacity............. 9 polled messages/ TDMA: 4500 messages/
minute Ch. 70-60 minute plus. DSC: 4
polled message/ to 9 polled
minute not Ch 70- messages/minute.
240 with special
shore station
control and
synchronization
using duplex
repeater.
------------------------------------------------------------------------
The Need for Standardization
As evidenced by the number of navigation systems currently in use,
there is great interest in using technology to improve navigational
safety and maritime domain awareness. However, to correctly add
beneficial traffic information while also meeting the user demand to
avoid a multiplicity of incompatible systems, standardization was
needed. Without standardization, an AIS could not operate effectively
or achieve its maximum potential.
Failure to adopt international standards would create a
proliferation of disparate units, with no guarantee that devices
offered by various manufacturers would be interoperable. In fact, the
DSC installation discussed in the Existing AIS-Like Systems section was
based on a standard communication protocol. However, it relies upon
proprietary software for data management and display. The Coast Guard
has been a leader in the drafting or adoption of technical standards
through its participation at IMO, ITU, and other international working
groups, including groups within the IEC; our goal being the universal
inter-operability of AIS.
The key differences between previous technologies and AISs are that
the latter allows for reliable Self-Organizing Time-Division Multiple
Access, two-way communication, radio frequency agility, greater
capacity, and a host of display possibilities. For these reasons,
implementing international standards for AIS was a high priority for
the Coast Guard.
[[Page 39358]]
Ports and Waterways Safety System
Recognizing the need to take advantage of this technology, the
Coast Guard has embarked in a major capitalization effort to upgrade
all existing and future VTSs with AIS capability.
The Ports and Waterways Safety System is an effort to establish a
national transportation system that collects, processes, and
disseminates information on the marine operating environment and
maritime vessel traffic in major U.S. ports and waterways.
The VTS mission is to monitor and assess vessel movements, exchange
information regarding vessel movements with other vessels and shore-
based personnel, and provide advisories to vessel Masters. The AIS
coverage capability and precision compared to other surveillance
technology (i.e., radar and closed circuit television (CCTV)), makes it
the sensor of choice for all future VTS operations.
A major goal of the Ports and Waterways Safety System is to apply
AIS and other technologies that enable information gathering and
dissemination in ways that do not create an additional operational
burden for the mariner. An AIS-based VTS will augment the mariner's
navigational capability through automatic and effortless broadcast of
vessel traffic data, navigational advisories, and safety alerts.
Through AIS-based VTS technology and this rulemaking, we can maximize
the benefits of our vessel traffic management mission, provide the same
or more services, and enhance navigation.
Each VTS has a Vessel Traffic Center (VTC) that will receive vessel
movement data from an AIS in addition to radar and CCTV, if so
equipped. An AIS-based VTS reduces the need for voice interactions,
expands situational awareness, and augments the VTS role to assist
mariners in the performance of their duties, thus mitigating the risk
of collisions.
We have started this upgrade process and expect to complete it for
the following VTS ports by 2005: Berwick Bay, LA; Houston-Galveston,
TX; Port Arthur, TX; New Orleans, LA; New York, NY; San Francisco, CA;
Prince William Sound, AK; Puget Sound, WA; and St. Marys River, MI. As
these VTSs become AIS-capable, per the schedule established today in 33
CFR 164.46, the Coast Guard will eliminate VTS Users voice position
reports and rely upon AIS broadcasting. We will require all VTS Users
within a VTS to use an AIS.
Given the reduced infrastructure needs of an AIS and associated
cost and operational efficiency, the Coast Guard intends to expand AIS
surveillance to other VMRS areas, such as the approaches to Los Angeles
and Long Beach Harbors, which is jointly operated by the Coast Guard
and the Southern California Marine Exchange (under the California Code
of Regulations, 14 CCR 852.20 through 852.30). Other VMRS areas are
envisioned and would be the subject of future rulemakings. However, the
Coast Guard in this interim rule defines VMRS centers, areas, and users
to distinguish them from VTS centers, areas, and users. This will allow
the Coast Guard to have monitoring capabilities in areas that may not
warrant the full interactivity of a VTS (that is, informational,
navigation assistance and active traffic organization services), but
that do warrant the Captain of the Port's (COTP's) vigilance and
greater situational awareness. It would also provide the COTPs a more
effective means to carry out their duties and communicate with vessels
reporting from within a vessel monitoring system area, and thus enhance
their maritime domain awareness.
Involvement of the Maritime Community
We have long recognized that use of AIS on the nation's navigable
waters is a valuable asset to all mariners. In the past, many in the
maritime community have noted that to have a successful VTS, the Coast
Guard must strive to meet the needs of the users while imposing minimal
burden, especially in terms of voice communications.
In 1997, the Coast Guard benefited from a national dialog conducted
by the Marine Board of the National Academies and its Committee on
Maritime Advanced Information Systems and ad hoc VTS committee formed
under the auspices of the Lower Mississippi River Waterway Safety
Advisory Committee. This ad hoc committee, which was made up of
representatives from the maritime community, port community,
government, and the public, was asked to define user requirements for
VTS that would accomplish the joint overall goals of safety and
efficiency. The result of this effort was a conceptual baseline VTS
plan. (See USCG-1998-4399-3 at http://dms.dot.gov). One key finding of
that plan was the need to implement AIS technology, and to incorporate
AIS as a key component of future VTS implementation. The Coast Guard
views AIS implementation not only as a key component of VTS, but also
as a valuable awareness tool that should be made available and required
in all the nation's seas and waterways.
The Coast Guard also recognizes that wider implementation of a
surveillance capability is imperative to maritime domain awareness and
homeland security. Thus, it is moving forward with AIS capability as a
component of our nation's marine distress system network-Rescue 21.
Therefore, the Coast Guard wishes to avail itself of this opportunity
to seek comments, via the Notice accompanying this interim rule
published elsewhere in today's Federal Register, regarding expanding
AIS carriage requirements beyond those vessels and areas required in
this interim rule.
Discussion of Interim Rule
This interim rule amends Vessel Bridge-to-Bridge Radiotelephone
Regulations in 33 CFR part 26, Vessel Traffic Management regulations in
part 161, Navigation Safety Regulations, in part 164, and the Prince
William Sound, Alaska regulated navigation area regulations in 33 CFR
165.1704. We are making the following changes to existing regulations.
Amendments to Part 26
We are deleting Table 26.03(f) and directing the reader to newly
designated Table 161.12(c) for the same information.
Amendments to Part 161
We are adding two definitions in Sec. 161.2--''navigable waters''
and ``Vessel Movement Center''; and revising definitions for ``Vessel
Movement Reporting System''; and ``Vessel Movement Reporting System
User'' to distinguish them from ``Vessel Traffic Service'', ``Vessel
Traffic Centers'', and ``Vessel Traffic Service Users''. Vessels within
a VTS receive a host of services (e.g., weather and navigation
advisories, reports of aids to navigation outages, and projected
traffic encounters) that will not necessarily be available from a VMRS
whose primary mission is to enhance Coast Guard maritime domain
awareness and homeland security.
We are amending the Table 161.12(b), and redesignating it as Table
161.12(c) to reflect existing VTS and VMRS areas and their call signs,
designated frequencies, and clarifying Notes.
We are revising Sec. 161.21 to establish a mandatory reporting and
broadcast requirement via AIS in denoted VMRS areas. The current
regulation has a voice reporting exemption for those vessels carrying
AISSE in VTS areas capable of receiving such reports, such as VTS
Prince William Sound (where the AISSE
[[Page 39359]]
requirement will remain in effect until July 1, 2004).
We are deleting the Sailing Plan Deviation Report in Sec. 161.21,
but we are still requiring this information in the general reporting
requirements in Sec. 161.18.
Throughout subpart B, we are adding ``VMRS'' after ``VTS'' to show
that the provisions of this subpart can apply to either a VTS and or a
VMRS.
Amendments to Part 164
We are adding a paragraph to Sec. 164.01 to note that Sec. 164.46
applies to some vessels less than 1600 gross tons, and we are revising
Sec. 164.01(c) to add Sec. 164.46 to the list of sections not
applicable to U.S. public vessels.
We are revising Sec. 164.02 to reflect that the AIS requirement in
part 164 applies to vessels subject to SOLAS Chapter V, Regulation
19.2.4.
We are amending Sec. 164.03, the ``Incorporation by Reference''
section, by adding the IMO's MSC AIS performance standard (MSC.74(69)),
the ITU AIS technical standard (ITU-R M.1371-1), the IMO AIS shipborne
installation guidelines (SN/Circ.277), the SOLAS 2000 Amendments and
SOLAS 2002 Amendments (Conference resolution 1), and the IEC AIS
certification and testing standard (IEC 61993-2).
We are renaming Sec. 164.43 as ``Automatic Identification System
Shipborne Equipment--Prince William Sound,'' and embedded an expiration
date. We are adding new Sec. 164.46 ``Automatic Identification System
(AIS)'' to address applicability, operation, placement, and use of AIS
units. In addition, we are extending AIS applicability to all vessels
subject to SOLAS; to commercial vessels 65 feet or more in length not
subject to SOLAS on an international voyage; and to other commercial
vessels required to participate in a VTS or VMRS (these vessels are all
passenger vessels certificated to have 50 or more passengers on board
and every vessel subject to Vessel Bridge-to-Bridge Radiotelephone
Act).
Given the similarities between vessel bridge-to-bridge
radiotelephone and AIS, the usage, maintenance, and language
requirements in 33 CFR 26.04(a) and (c), 26.05, 26.06, and 26.07 for
Vessel Bridge-to-Bridge Radiotelephones, will also apply to AIS. We are
also clarifying that proper maintenance includes accurate and timely,
data entry and transmission. For vessels over 1600 gross tons, we are
requiring the AIS Pilot Plug be readily available, placed at the
conning position, and near an AC power outlet.
The use of portable AIS units on vessels will be permissible only
if such use does not interfere with other installed navigation and
communications systems, and, such that only one unit be in operation at
a time.
Amendments to Part 165
In Sec. 165.1704, we are amending the AISSE carriage requirement
for tankers in Prince William Sound, so that it expires, and thus
reverts to the AIS requirement, on July 1, 2004.
Incorporation by Reference
The Director of the Federal Register has approved the material in
Sec. 164.03 for incorporation by reference under 5 U.S.C. 552 and 1
CFR part 51. You may inspect this material at U.S. Coast Guard
Headquarters where indicated under ADDRESSES. Copies of the material
are available from the sources listed in Sec. 164.03.
Regulatory Assessment
This interim rule is not economically significant, however, it is a
``significant regulatory action'' under Executive Order 12866, and has
been reviewed by the Office of Management and Budget (OMB). It is also
significant under the regulatory policies and procedures of the
Department of Homeland Security due to significant public interest. A
more detailed Regulatory Assessment is available in the docket as
indicated under ADDRESSES. A summary of the assessment follows.
Cost Assessment
The interim rule is requiring the carriage of an AIS on all U.S.
flag SOLAS vessels, certain domestic vessels in VTS areas, and foreign
flag vessels less than 300 gross tonnage that make ports of call in the
United States. We estimate that 438 U.S. flag SOLAS vessels, 4,121 non-
SOLAS domestic vessels, and 70 non-SOLAS foreign vessels will be
affected by the interim rule. These include the following:
(1) Vessels subject to SOLAS;
(2) All commercial, self-powered vessels of 65 feet or more in
length in VTS areas, including fishing vessels;
(3) Most passenger vessels in VTS areas;
(4) All dredges and floating plants engaged in operations in VTS
areas;
(5) Certain commercial towing vessels of 26 feet or more in length
in VTS areas; and
(6) Non-SOLAS foreign flag vessels that are 65 feet or more in
length that make port calls at any U.S. port.
The estimated cost of complying with the interim rule for domestic
vessels is Present Value (PV) $66 million (2003-2012, 7 percent
discount rate). Approximately PV $5 million of this total is
attributable to U.S. flag SOLAS vessels. The remaining PV $61 million
is attributable to domestic vessels (non-SOLAS) that are affected. In
the first year of compliance, the cost of purchasing and installing
equipment and training personnel is an estimated $40 million (non-
discounted, $2 million for the U.S. flag SOLAS fleet, $38 million for
the domestic fleet). Following initial implementation, the annual cost
of compliance is an estimated $1 million (non-discounted, $0.1 million
for the U.S. flag SOLAS fleet, $0.9 million for the domestic fleet).
Non-SOLAS foreign flag vessel costs attributed to this rule are not
included in the domestic cost calculations but are still considered
here. The PV cost for these vessels to comply with the interim rule is
estimated at $1 million over the 10-year period. The initial cost of
purchasing and installing equipment and training personnel is an
estimated $0.6 million (non-discounted). Following the initial
implementation, the annual cost of compliance is less than $0.1 million
(non-discounted).
Safety Benefits
The Coast Guard expects both quantifiable and non-quantifiable
benefits as a result of the interim rule. Quantified benefits include
avoided property damage, injuries, fatalities, and pollution events as
a result of having an AIS. Other benefits include better situational
awareness, better information, and better communications. The interim
rule will also enhance Coast Guard missions such as marine safety and
security, aids to navigation, and maritime mobility.
In order to quantify the benefits of AIS implementation, the Coast
Guard reviewed thousands of Marine Casualty Incident Reports (MCIRs)
from 1993-1999 that involved the vessel populations affected by this
interim rule. These incidents were used to develop a historical rate of
marine casualties in VTS areas to determine the effectiveness of AIS as
a mitigating factor. The estimated safety benefit of the interim rule
is PV $25 million (2003-2012, 7 percent discount rate). Approximately
PV $13 million is attributable to U.S. flag SOLAS vessels. The
remaining PV $12 million is attributable to domestic vessels (non-
SOLAS). The estimated average annual benefit is $5 million (non-
discounted).
The costs of this interim rule are presented for a 10-year period.
The Regulatory Assessment available in the public docket for this
rulemaking
[[Page 39360]]
extends the assessment to a 15-year period.
Security Benefits
This interim rule is one of six interim rules that implement
national maritime security initiatives concerning general provisions,
Area Maritime Security (ports), vessels, facilities, Outer Continental
Shelf (OCS) facilities, and AIS. The Coast Guard used the National Risk
Assessment Tool (N-RAT) to assess benefits that would result from
increased security for vessels, facilities, OCS facilities, and ports.
The N-RAT considers threat, vulnerability, and consequences for a host
of maritime entities in various security-related scenarios. For a more
detailed discussion on the N-RAT and how we employed this tool, refer
to ``Applicability of National Maritime Security Initiatives'' in the
interim rule titled ``Implementation of National Maritime Security
Initiatives'' (USCG-2003-14792) published elsewhere in today's Federal
Register. For this benefit assessment, the Coast Guard used a team of
experts to calculate a risk score for each entity and scenario before
and after the implementation of required security measures. The
difference in before and after scores indicates the benefit of the
proposed action.
We recognize that the interim rules are a ``family'' of rules that
will reinforce and support one another in their implementation. We have
ensured, however, that risk reduction that is credited in one
rulemaking is not also credited in another. For a more detailed
discussion on the benefit assessment and how we addressed the potential
to double-count the risk reduced, refer to ``Benefit Assessment'' in
the interim rule titled ``Implementation of National Maritime Security
Initiatives'' (USCG-2003-14792) published elsewhere in today's Federal
Register.
We determined annual risk points reduced for each of the six
interim rules using the N-RAT. The benefits are apportioned among the
Vessel, Facility, OCS Facility, AMS, and AIS requirements. As shown in
Table 3, the implementation of AIS for the affected population reduces
1,553 risk points annually through 2012. The benefits attributable for
part 101--General Provisions--were not considered separately since it
is an overarching section for all the parts.
Table 3.--Annual Risk Points Reduced by the Interim Rules
----------------------------------------------------------------------------------------------------------------
Annual Risk Points Reduced by Rulemaking
-------------------------------------------------------------------------------
Maritime entity Vessel Facility OCS facility
security plans security plans security plans AMS plans AIS
----------------------------------------------------------------------------------------------------------------
Vessels......................... 778,633 3,385 3,385 3,385 1,448
Facilities...................... 2,025 469,686 .............. 2,025 ..............
OCS Facilities.................. 41 .............. 9,903 .............. ..............
Port Areas...................... 587 587 .............. 129,792 105
-----------------
Total....................... 781,285 473,659 13,288 135,202 1,553
----------------------------------------------------------------------------------------------------------------
Once we determined the annual risk points reduced, we discounted
these estimates to their present value (7 percent discount rate, 2003-
2012) so that they could be compared to the costs. We presented cost
effectiveness, or dollars per risk point reduced, in two ways: first,
we compared the first-year cost and first-year benefit because first-
year cost is the highest in our assessment as companies develop
security plans and purchase equipment. Second, we compared the 10-year
PV cost and the 10-year PV benefit. The results of our assessment are
presented in Table 4.
Table 4. First-Year and 10-Year PV Cost and Benefit of the Interim Rules.
----------------------------------------------------------------------------------------------------------------
Interim Rule
-------------------------------------------------------------------------------
Item Vessel Facility OCS facility
security plans security plans security plans AMS plans AIS\1\
----------------------------------------------------------------------------------------------------------------
First-year cost (millions)...... $218 $1,125 $3 $120 $41
First-year benefit.............. 781,285 473,659 13,288 135,202 1,553
First-year cost effectiveness ($/ 279 2,375 205 890 26,391
risk point reduced)............
10-year PV cost (millions)...... 1,368 5,399 37 477 42
10-year PV benefit.............. 5,871,540 3,559,655 99,863 1,016,074 11,671
10-year PV cost effectiveness ($/ 233 1,517 368 469 3,624
risk point reduced)............
----------------------------------------------------------------------------------------------------------------
\1\ Cost less monetized safety benefit.
Although we have quantified these security benefits relative to
AIS, the N-RAT is limited in its ability to measure benefits
attributable to intelligence or information gathering. These
limitations are discussed in the Assessment Limitations section in the
preamble of the interim rule titled ``Implementation of National
Maritime Security Initiatives'' (USCG-2003-14792) published elsewhere
in today's Federal Register.
Congress mandated an AIS carriage requirement on domestic (non-
SOLAS) vessels in 46 U.S.C. 70114, and provided an explicit phase-in
schedule for AIS in section 102(e) of the MTSA. Strictly upon
consideration of monetized safety benefits, as measured through
decreased collisions and the resulting decrease in injuries,
mortalities, and pollution incidents, the cost of AIS installation for
the domestic fleet far outweighs the benefit over a 15-year period
(0.26 benefit-cost ratio). This ratio results from the high costs of
purchasing and installing the unit (an estimated $9,330 per vessel),
and the types of marine casualties that AIS is expected to mitigate,
where damage is not usually severe nor is there significant loss of
life. In view of the
[[Page 39361]]
benefit-cost ratio presented above, the Coast Guard will share with the
Congress any significant information provided by the public that
addresses the reasonableness of implementing the statute.
Because there is not yet a mass market for AIS, the cost per unit
in the next few years, when the domestic fleet is required to purchase
AIS, is likely to be higher than when it is replaced (around 2012).
Because the AIS market is in its infancy, we cannot estimate how much
the unit cost will decrease over the next decade. If many manufactures
enter the market, costs are likely to drop through competition. Because
manufacturers have a potential world market and a significant U.S.
market, many may attempt to capture a segment. Conversely, if only a
few players emerge worldwide, AIS costs could remain high. Because
manufacturers must engage in a rigorous approval process and cannot be
assured that they will recoup research and development costs through
unit sales, there is the potential that only a few dominant players
will emerge in the AIS market. Because we cannot determine the trend of
the AIS market, and we did not want to understate the cost for AIS, we
assumed that the cost for units in 2012 would again be approximately
$9,000 per unit. It is possible that an AIS unit will not be this
expensive to replace.
In terms of security, we estimated that we will not experience a
significant benefit from a decrease in risk, as measured in risk points
reduced in the N-RAT, as a result of AIS installation. There are two
primary reasons for this estimate. First, the N-RAT was an internal
Coast Guard tool that was modified to estimate the national benefits
attributable to the suite of security rulemakings mandated by the MTSA.
The tool was not designed to measure the security benefits of AIS
specifically. The N-RAT does not, therefore, robustly capture the risk
mitigation potential of AIS. Secondly, the Coast Guard strongly
believes that AIS is critical to maritime domain awareness. We are
unable to quantify or monetize the benefits of this Coast Guard mission
or the individual contribution of AIS.
While the monetized benefit of the rule does not exceed its cost,
the Coast Guard believes that AIS has the potential to mitigate a
Transportation Security Incident (TSI) as described in the MTSA. The
Coast Guard recognizes that a single sensor, such as AIS, will not
likely prevent a TSI alone--but if AIS can have a mitigating effect on
just a single TSI, the security benefit could be significant. The Coast
Guard must consider AIS in its suite of security rulemakings and has
developed an interim rulemaking that considers the mandates of the MTSA
in light of the high initial costs of purchasing the unit, by requiring
AIS in VTS areas only for the domestic fleet. We are concentrating our
efforts in VTS areas, since this is where we can begin accruing the
most benefit--for industry, the public, and the Coast Guard--in the
shortest period of time. Through our interim rulemaking, we are
attempting to maximize the return to our investment as quickly as
practical.
Small Entities
Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have
considered whether this rule would have a significant economic impact
on a substantial number of small entities. The term ``small entities''
comprises small businesses, not-for-profit organizations that are
independently owned and operated and are not dominant in their fields,
and governmental jurisdictions with populations of less than 50,000.
This rule does not require a general notice of proposed rulemaking and,
therefore, is exempt from the requirements of the Regulatory
Flexibility Act. Although this rule is exempt, we have reviewed it for
potential economic impacts on small entities. An Initial Regulatory
Flexibility Analysis discussing the impact of this rule on small
entities is available in the docket where indicated under ADDRESSES.
Number and Types of Small Entities Affected
U.S. Flag SOLAS Vessels
Of the affected population, we estimate that 205 U.S. flag SOLAS
vessels, of 438 total, are owned by 122 small businesses. Approximately
40 large companies own the remaining 233 U.S. flag SOLAS vessels.
We estimate the cost of an AIS per vessel in the first year will be
$9,330. Of this, $7,000 is for the AIS unit, $2,000 is for
installation, and $330 is for mariner training. We estimate that
following installation, each AIS will require $250 in annual
maintenance to replace such items as the antenna, keyboard, and display
screen. The entire unit will be replaced after 8 years.
We found that annual maintenance costs will have a less-than-1-
percent impact on annual revenue for all small businesses with U.S.
flag SOLAS vessels. First-year impacts to small businesses, therefore,
are the focus of this assessment. To estimate the revenue impact on
small businesses in the first year, the cost per vessel for an AIS,
$9,330, is multiplied by the number of vessels owned by each company,
then divided by the average annual revenue for each company, as
reported in the online databases noted above. Of the 122 small
businesses that own U.S. flag SOLAS vessels, we found revenue for 59 of
them (48 percent). If we could not find revenue data for a business, we
assumed the business was small. For the remaining 63 small entities
without revenue data, we expanded the revenue impacts from the known 59
companies. For example, if 73 percent of 59 small entities (43
entities) had a 0-3 percent impact on their average annual revenues,
then 73 percent of 63 small entities (47 entities) had a 0-3 percent
impact, for a total of 90 small entities with an annual revenue impact
of 0-3 percent. Table 5 presents the revenue impact for the 59 entities
with known average annual revenue and the expanded results for the 63
entities without revenue information.
Table 5.--Effect of First-Year Cost on Average Annual Revenue for Small Entities Owning U.S. Flag SOLAS Vessels
----------------------------------------------------------------------------------------------------------------
Expanded
Number of Percent of number of Total small
Percent of annual revenue that is first-year AIS entities with entities with entities with entities per
cost known annual known annual unknown annual impact
revenues revenues revenues category
----------------------------------------------------------------------------------------------------------------
0-3%............................................ 43 73 47 90
3-5%................................ 5 8 5 10
5-10%............................... 4 7 4 8
10-20%.............................. 6 10 6 12
20-30%.............................. 0 0 0 0
[[Page 39362]]
30%................................. 1 2 1 2
-----------------
Total....................................... 59 100 63 122
----------------------------------------------------------------------------------------------------------------
Detail may not calculate to total due to independent rounding.
Number and Types of Small Entities Affected: Non-SOLAS Fleet in VTS
Areas
We estimate that there are 1,491 small businesses that will be
affected by the interim rule that own non-SOLAS vessels that transit
VTS areas. These 1,491 companies own 2,360 vessels, representing 57
percent of the 4,121 non-SOLAS vessels affected by the rule. An
estimated 1,456 vessels (35 percent) are owned by 150 large businesses,
and 55 vessels (1 percent) are owned by State and local governments. We
have 248 vessels that transit VTS areas (7 percent of the non-SOLAS
fleet) that have no company associated with the vessel whatsoever, due
to missing company information in our data. We cannot be certain if
these vessels belong to small, large, or government entities and do not
apportion these 248 vessels to one type of entity or another.
As with the U.S. flag SOLAS fleet, annual cost following
installation of an AIS will have little impact on annual revenues--a
less-than-1-percent impact on annual revenue for most small businesses.
The first-year cost of the interim rule, therefore, will again have the
greatest impact on average annual revenue. To estimate the revenue
impact on small businesses in the first year, the cost per vessel for
an AIS, $9,330, multiplied by the number of vessels owned by each
company, then divided by the average annual revenue for each company.
Of the 1,491 small businesses that own non-SOLAS vessels in VTS areas,
we found revenue for 453 of them (30 percent). As with the assessment
for the U.S. flag SOLAS fleet, if we could not find revenue data for a
business, we assumed the business was small. For the remaining 1,038
small entities without revenue data, we expanded the revenue impacts
for the known 453 companies. The results of the assessment for the non-
SOLAS fleet in VTS areas are presented in Table 6.
Table 6.--Effect of First-Year Cost on Average Annual Revenue for Small Entities Owning Non-SOLAS Vessels in VTS
Areas
----------------------------------------------------------------------------------------------------------------
Expanded
Number of Percent of number of Total small
Percent of annual revenue that is first-year AIS entities with entities with entities with entities per
cost known annual known annual unknown annual impact
revenues revenues revenues category
----------------------------------------------------------------------------------------------------------------
0-3%............................................ 334 74 767 1,101
3-5%................................ 47 10 104 151
5-10%............................... 34 8 83 117
10-20%.............................. 20 4 42 62
20-30%.............................. 11 2 21 32
30%................................. 7 2 21 28
-----------------
Total....................................... 453 100 1,038 1,491
----------------------------------------------------------------------------------------------------------------
Detail may not calculate to total due to independent rounding.
As shown, the interim rule will have a less-than-3-percent impact
on 74 percent of small businesses in the first year it is in effect.
Approximately 92 percent have a less-than-10-percent impact. We
conclude, therefore, that the interim rule may have a significant
economic impact on a substantial number of small entities.
Assistance for Small Entities
Under section 213(a) of the Small Business Regulatory Enforcement
Fairness Act of 1996 (Public Law 104-121), we want to assist small
entities in understanding this rule so that they can better evaluate
its effects on them and participate in the rulemaking. If the rule
would affect your small business, organization, or governmental
jurisdiction and you have questions concerning its provisions or
options for compliance, please consult Mr. Jorge Arroyo (G-MWV) by
telephone 202-267-1103, toll-free telephone 1-800-842-8740 ext. 7-1103,
or electronic mail msregs@comdt.uscg.mil. Small businesses may send comments on the actions of Federal
employees who enforce, or otherwise determine compliance with, Federal
regulations to the Small Business and Agriculture Regulatory
Enforcement Ombudsman and the Regional Small Business Regulatory
Fairness Boards. The Ombudsman evaluates these actions annually and
rates each agency's responsiveness to small business. If you wish to
comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR
(1-888-734-3247).
Collection of Information
This rule calls for no new collection of information under the
Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520). The reports
required by this rule are considered to be operational communications,
transitory in nature, and, therefore, do not constitute the collection
of information under the Paperwork Reduction Act.
[[Page 39363]]
Federalism
A rule has implications for federalism under Executive Order 13132,
Federalism, if it has a substantial direct effect on State or local
governments and would either preempt State law or impose a substantial
direct cost of compliance on them. It is well settled that States may
not regulate in categories reserved for regulation by the Coast Guard.
It is also well settled, now, that all of the categories covered in 46
U.S.C. 3306, 3703, 7101, and 8101 (design, construction, alteration,
repair, maintenance, operation, equipping, personnel qualification, and
manning of vessels), as well as the reporting of casualties and any
other category in which Congress intended the Coast Guard to be the
sole source of a vessel's obligations, are within the field foreclosed
from regulation by the States. In addition, under the authority of
Title I of the Ports and Waterways Safety Act, 33 U.S.C. 1221-1232
(specifically 33 U.S.C. 1223) and the MTSA our regulation will preempt
any State action on the subject of automatic identification system
carriage requirements. (See the decision of the Supreme Court in the
consolidated cases of United States v. Locke and Intertanko v. Locke,
529 U.S. 89, 120 S.Ct. 1135 (March 6, 2000).) Our AIS carriage
requirement rule falls into the category of equipping of vessels.
Because the States may not regulate within this category, preemption
under Executive Order 13132 is not an issue.
Unfunded Mandates Reform Act
The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538)
requires Federal agencies to assess the effects of their regulatory
actions not specifically required by law. In particular, the Act
addresses actions that may result in the expenditure by a State, local,
or tribal government, in the aggregate, or by the private sector of
$100 million or more in any one year. We do discuss the effects of this
interim rule elsewhere in this preamble. However, this interim rule is
exempted from assessing the effects of the regulatory action as
required by the Act because it is necessary for the national security
of the United States (2 U.S.C. 1503(5)).
Taking of Private Property
This interim rule will not effect a taking of private property or
otherwise have taking implications under Executive Order 12630,
Governmental Actions and Interference with Constitutionally Protected
Property Rights.
Civil Justice Reform
This interim rule meets applicable standards in sections 3(a) and
3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize
litigation, eliminate ambiguity, and reduce burden.
Protection of Children
The Coast Guard has analyzed this interim rule under Executive
Order 13045, Protection of Children from Environmental Health Risks and
Safety Risks. This interim rule is not an economically significant
rule, and does not concern an environmental risk to health or risk to
safety that may disproportionately affect children.
Indian Tribal Governments
This interim rule does not have tribal implications under Executive
Order 13175, Consultation and Coordination with Indian Tribal
Governments, because it would not have a substantial direct effect on
one or more Indian tribes, on the relationship between the Federal
Government and Indian tribes, or on the distribution of power and
responsibilities between the Federal Government and Indian tribes. We
invite your comments, however, on how this interim rule might impact
tribal governments, even if that impact may not constitute a ``tribal
implication'' under the Order.
Energy Effects
We have analyzed this interim rule under Executive Order 13211,
Actions Concerning Regulations That Significantly Affect Energy Supply,
Distribution, or Use. We have determined that it is not a ``significant
energy action'' under that order because it is not an economically
significant regulatory action and is therefore not likely to have a
significant adverse effect on the supply, distribution, or use of
energy even though it is a ``significant regulatory action'' under
Executive Order 12866. It has not been designated by the Administrator
of the Office of Information and Regulatory Affairs as a significant
energy action. Therefore, it does not require a Statement of Energy
Effects under Executive Order 13211.
Trade Impact Assessment
The Trade Agreement Act of 1979 (19 U.S.C. 2501-2582) prohibits
Federal agencies from engaging in any standards or related activities
that create unnecessary obstacles to the foreign commerce of the United
States. Legitimate domestic objectives, such as safety and security,
are not considered unnecessary obstacles. The Act also requires
consideration of international standards and, where appropriate, that
they be the basis for U.S. standards. We have assessed the potential
effect of this interim rule and have determined that it is not likely
to create substantial obstacles to the foreign commerce of the United
States because we are implementing an international standards (IEC/IMO/
ITU). In addition, because these regulations are being put in place in
order to further a legitimate domestic objective, namely to increase
the safety of vessels and the security of the United States, any
obstacles created by the regulation are not considered unnecessary
obstacles.
Environment
We have considered the environmental impact of this rule and
concluded that under figure 2-1, paragraphs (34)(d), (34)(e), and
(34)(i) of Commandant Instruction M16475.lD, this rule is categorically
excluded from further environmental documentation. This interim rule
concerns vessel equipment requirements that will contribute to higher
levels of marine safety and maritime domain awareness for U.S. ports
and waterways. A ``Categorical Exclusion Determination'' is available
in the docket where indicated under ADDRESSES or SUPPLEMENTARY
INFORMATION.
This rulemaking will not significantly impact the coastal zone.
Further, the rulemaking and the execution of this rule will be done in
conjunction with appropriate State coastal authorities. The Coast Guard
will, therefore, comply with the requirements of the Coastal Zone
Management Act while furthering its intent to protect the coastal zone.
List of Subjects
33 CFR Part 26
Communications equipment, Marine safety, Radiotelephone, Vessels.
33 CFR Part 161
Harbors, Navigation (water), Reporting and recordkeeping
requirements, Vessels, Waterways.
33 CFR Part 164
Incorporation by reference, Marine safety, Navigation (water),
Reporting and recordkeeping requirements, Waterways.
33 CFR Part 165
Harbors, Marine safety, Navigation (water), Reporting and
recordkeeping requirements, Security measures, Waterways.
0
For the reasons discussed in the preamble, the Coast Guard amends 33
CFR parts 26, 161, 164, and 165 as follows:
[[Page 39364]]
PART 26--VESSEL BRIDGE-TO-BRIDGE RADIOTELEPHONE REGULATIONS
0
1. Revise the authority for part 26 to read as follows:
Authority: 14 U.S.C. 2; 33 U.S.C. 1201-1208; Pub. L. 107-295,
116 Stat. 2064; Department of Homeland Security Delegation No. 0170;
Rule 1, International Regulations for the Prevention of Collisions
at Sea.
0
2. In Sec. 26.03, in paragraph (f), remove the words, ``Table 26.03(f)
(VTS Call Signs, Designated Frequencies, and Monitoring Areas).'', and
add, in their place, the words ``Table 161.12(c) (VTS and VMRS Centers,
Call Signs/MMSI, Designated Frequencies, and Monitoring Areas).'', and
delete Table 26.03(f).
PART 161--VESSEL TRAFFIC MANAGEMENT
0
3. Revise the authority for part 161 to read as follows:
Authority: 33 U.S.C. 1223, 1231; 46 U.S.C. 70114, 70117; Pub. L.
107-295, 116 Stat. 2064; Department of Homeland Security Delegation
No. 0170.
0
4. In Sec. 161.2--
0
a. Revise the definitions for ``Vessel Movement Reporting System
(VMRS)'', ``Vessel Movement Reporting System (VMRS) User''; and
0
b. Add the definitions for ``navigable waters'' and ``Vessel Movement
Center (VMC)'', in alphabetical order, to read as follows:
Sec. 161.2 Definitions.
* * * * *
Navigable waters means all navigable waters of the United States
including the territorial sea of the United States, extending to 12
nautical miles from United States baselines, as described in
Presidential Proclamation No. 5928 of December 27, 1988.
* * * * *
Vessel Movement Center (VMC) means the shore-based facility that
operates the vessel tracking system for a Vessel Movement Reporting
System (VMRS) area or sector within such an area. The VMC does not
necessarily have the capability or qualified personnel to interact with
marine traffic, nor does it necessarily respond to traffic situations
developing in the area, as does a Vessel Traffic Service (VTS).
Vessel Movement Reporting System (VMRS) means a mandatory reporting
system used to monitor and track vessel movements. This is accomplished
by a vessel providing information under established procedures as set
forth in this part in the areas defined in Table 161.12(c) (VTS and
VMRS Centers, Call Signs/MMSI, Designated Frequencies, and Monitoring
Areas).
Vessel Movement Reporting System (VMRS) User means a vessel, or an
owner, operator, charterer, Master, or person directing the movement of
a vessel that is required to participate in a VMRS.
* * * * *
0
5. In Sec. 161.12--
0
a. Redesignate paragraphs (a)(1), (b), Table 161.12(b), and paragraph
(c) as (b), (c), Table 161.12(c), and (d), respectively;
0
b. Revise newly designated paragraph (c) and newly designated Table
161.12(c) to read as follows:
Sec. 161.12 Vessel operating requirements.
* * * * *
(c) When not exchanging voice communications, a VTS User must
maintain a listening watch as required by Sec. 26.04(e) of this
chapter on the VTS frequency designated in Table 161.12(c) (VTS and
VMRS Centers, Call Signs/MMSI, Designated Frequencies, and Monitoring
Areas). In addition, the VTS User must respond promptly when hailed and
communicate in the English language.
Note to Sec. 161.12(c): As stated in 47 CFR 80.148(b), a very
high frequency watch on Channel 16 (156.800 MHz) is not required on
vessels subject to the Vessel Bridge-to-Bridge Radiotelephone Act
and participating in a Vessel Traffic Service (VTS) system when the
watch is maintained on both the vessel bridge-to-bridge frequency
and a designated VTS frequency.
Table 161.12(c).--VTS and VMRS Centers, Call Signs/MMSI, Designated Frequencies, and Monitoring Areas
----------------------------------------------------------------------------------------------------------------
Designated frequency (Channel
Center MMSI 1 Call Sign designation)--purpose 2 Monitoring area 3 4
----------------------------------------------------------------------------------------------------------------
Berwick Bay 003669950--
Berwick Traffic.......................... 156.550 MHz (Ch. 11).............. The waters south of 29[deg]45'
N., west of 91[deg]10' W., north
of 29[deg]37' N., and east of
91[deg]18' W.
Houston-Galveston--003669954............. .................................. The navigable waters north of
29[deg] N., west of 94[deg]20'
W., south of 29[deg]49' N., and
east of 95[deg]20' W.
Houston Traffic.......................... 156.550 MHz (Ch. 11).............. The navigable waters north of a
156.250 Mhz (Ch. 5A).............. line extending due west from the
--For Sailing Plans only.......... southern most end of Exxon Dock
1 (20[deg]43.37' N.,
95[deg]01.27' W.).
Houston Traffic.......................... 156.600 MHz (Ch. 12).............. The navigable waters south of a
156.250 Mhz (Ch. 5A).............. line extending due west from the
--For Sailing Plans only.......... southern most end of Exxon Dock
1 (29[deg]43.37' N.,
95[deg]01.27' W.)
Los Angeles/Long Beach: MMSI/To be .................................
determined
San Pedro Traffic........................ 156.700 MHz (Ch.14)............... Vessel Movement Reporting System
Area: The navigable waters
within a 25 nautical mile radius
of Point Fermin Light
(33[deg]42.3' N., 118[deg]17.6'
W.).
Louisville: Not applicable
Louisville Traffic....................... 156.650 MHz (Ch. 13) The waters of the Ohio River
between McAlpine Locks (Mile
606) and Twelve Mile Island
(Mile 593), only when the
McAlpine upper pool gauge is at
approximately 13.0 feet or
above.
Lower Mississippi River 5--0036699952 .................................
New Orleans Traffic...................... 156.700 MHz (Ch.14)............... The navigable waters of the Lower
Mississippi River below
30[deg]38.7' N., 91[deg]17.5' W.
(Port Hudson Light at 255 miles
Above Head of Passes (AHP)), the
Southwest Pass, and, within a 12
nautical miles radius around
28[deg]54.3' N., 89[deg]25.7' W.
(Southwest Pass Entrance Light
at 19.9 miles Below Head of
Passes).
[[Page 39365]]
New Orleans Traffic...................... 156.600 MHz (Ch.12)............... New Orleans Sector. The navigable
waters of the Lower Mississippi
River bounded on the north by a
line drawn perpendicularly at
29[deg]56.4' N., 90[deg]08.36'
W. and on the south by a line
drawn perpendicularly at
29[deg]56.24' N., 89[deg]59.86'
W. (88 and 106 miles AHP).
New York--003669951
New York Traffic......................... 156.550 MHz (Ch. 11).............. The area consists of the
--For Sailing Plans only.......... navigable waters of the Lower
156.600 MHz (Ch. 12).............. New York Bay bounded on the east
--For vessels at anchor........... by a line drawn from Norton
Point to Breezy Point; on the
south by a line connecting the
entrance buoys at the Ambrose
Channel, Swash Channel, and
Sandy Hook Channel to Sandy Hook
Point; and on the southeast
including the waters of Sandy
Hook Bay south to a line drawn
at latitude 40 25' N; then west
in the Raritan Bay to the
Raritan River Railroad Bridge,
then north into waters of the
Arthur Kill and Newark Bay to
the Lehigh Valley Draw Bridge at
latitude 40 41.9N; and then east
including the waters of the Kill
Van Kull and the Upper New York
Bay north to a line drawn east-
west from the Holland Tunnel
ventilator shaft at latitude 40
43.7' N, longitude 74 01.6' W,
in the Hudson River; and then
continuing east including the
waters of the East River to the
Throgs Neck Bridge, excluding
the Harlem River.
New York Traffic......................... 156.700 MHz (Ch. 14).............. The navigable waters of the Lower
New York Bay west of a line
drawn from Norton Point to
Breezy Point; and north of a
line connecting the entrance
buoys of Ambrose Channel, Swash
Channel, and Sandy Hook Channel,
to Sandy Hook Point; on the
southeast including the waters
of the Sandy Hook Bay south to a
line drawn at latitude 40 25' N;
then west into the waters of
Raritan Bay East Reach to a line
drawn from Great Kills Light
south through Raritan Bay East
Reach LGB 14 to Comfort
PT, NJ; then north including the
waters of the Upper New York Bay
south of 40 42.40' N (Brooklyn
Bridge) and 40 43.70' N (Holland
Tunnel Ventilator Shaft); west
through the KVK into the Arthur
Kill north of 40 38.25' N
(Arthur Kill Railroad Bridge);
then north into the waters of
the Newark Bay, south of 40
41.95' N (Lehigh Valley Draw
Bridge).
New York Traffic......................... 156.600 MHz (Ch. 12).............. The navigable waters of the
Raritan Bay south to a line
drawn at latitude 40 26' N; then
west of a line drawn from Great
Kills Light south through the
Raritan Bay East Reach LGB
14 to Point Comfort,
NJ; then west to the Raritan
River Railroad Bridge; and north
including the waters of the
Arthur Kill to 40 28.25' N
(Arthur Kill Railroad Bridge);
including the waters of the East
River north of 40 42.40' N
(Brooklyn Bridge) to the Throgs
Neck Bridge, excluding the
Harlem River.
Port Arthur 5--003669955 .................................. .................................
Sabine Traffic........................... To be determined.................. The navigable waters south of
30[deg]10' N., east of
94[deg]20' W., west of
93[deg]22' W, and, north of
29[deg] 10' N.
Prince William Sound--003669958 .................................. .................................
Valdez Traffic........................... 156.650 MHz (Ch. 13).............. The navigable waters south of
61[deg]05' N., east of
147[deg]20' W., north of 60[deg]
N., and west of 146[deg]30' W.;
and, all navigable waters in
Port Valdez.
Puget Sound 6 .................................. .................................
Seattle Traffic--003669957............... 156.700 MHz (Ch. 14).............. The waters of Puget Sound, Hood
Canal and adjacent waters south
of a line connecting Marrowstone
Point and Lagoon Point in
Admiralty Inlet and south of a
line drawn due east from the
southernmost tip of Possession
Point on Whidbey Island to the
shoreline.
Seattle Traffic--003669957............... 156.250 MHz (Ch. 5A).............. The waters of the Strait of Juan
de Fuca east of 124[deg]40' W.
excluding the waters in the
central portion of the Strait of
Juan de Fuca north and east of
Race Rocks; the navigable waters
of the Strait of Georgia east of
122[deg]52' W.; the San Juan
Island Archipelago, Rosario
Strait, Bellingham Bay;
Admiralty Inlet north of a line
connecting Marrowstone Point and
Lagoon Point and all waters east
of Whidbey Island North of a
line drawn due east from the
southernmost tip of Possession
Point on Whidbey Island to the
shoreline.
Tofino Traffic--003160012................ 156.725 MHz (Ch. 74).............. The waters west of 124[deg]40' W.
within 50 nautical miles of the
coast of Vancouver Island
including the waters north of
48[deg] N., and east of 127[deg]
W.
Victoria Traffi--003160010............... 156.550 MHz (Ch. 11).............. The waters of the Strait of
Georgia west of 122[deg] 52' W.,
the navigable waters of the
central Strait of Juan de Fuca
north and east of Race Rocks,
including the Gulf Island
Archipelago, Boundary Pass and
Haro Strait.
[[Page 39366]]
San Francisco--003669956 .................................
San Francisco Traffic.................... 156.700 MHz (Ch. 14).............. The navigable waters of the San
Francisco Offshore Precautionary
Area, the navigable waters
shoreward of the San Francisco
Offshore Precautionary Area east
of 122[deg]42.0' W. and north of
37[deg]40.0' N. extending
eastward through the Golden
Gate, and the navigable waters
of San Francisco Bay and as far
east as the port of Stockton on
the San Joaquin River, as far
north as the port of Sacramento
on the Sacramento River.
San Francisco Traffic.................... 156.600 MHz (Ch. 12).............. The navigable waters within a 38
nautical mile radius of Mount
Tamalpais (37[deg]55.8' N.,
122[deg]34.6' W.) west of
122[deg]42.0' W. and south of
37[deg]40.0' N and excluding the
San Francisco Offshore
Precautionary Area.
St. Marys River--003669953
Soo Traffic.............................. 156.600 MHz (Ch. 12).............. The waters of the St. Marys River
between 45[deg]57' N. (De Tour
Reef Light) and 46[deg]38.7' N.
(lle Parisienne Light), except
the St. Marys Falls Canal and
those navigable waters east of a
line from 46[deg]04.16' N. and
46[deg]01.57' N. (La Pointe to
Sims Point in Potagannissing Bay
and Worsley Bay).
----------------------------------------------------------------------------------------------------------------
Notes:
1 Maritime Mobile Service Identifier (MMSI) is a unique nine-digit number assigned that identifies ship
stations, ship earth stations, coast stations, coast earth stations, and group calls for use by a digital
selective calling (DSC) radio, an INMARSAT ship earth station or AIS. AIS requirements are set forth in Sec.
Sec. 161.21 and 164.46 of this subchapter.
2 In the event of a communication failure, difficulties or other safety factors, the Center may direct or permit
a user to monitor and report on any other designated monitoring frequency or the bridge-to-bridge navigational
frequency, 156.650 MHz (Channel 13) or 156.375 MHz (Ch. 67), to the extent that doing so provides a level of
safety beyond that provided by other means. The bridge-to-bridge navigational frequency, 156.650 MHz (Ch. 13),
is used in certain monitoring areas where the level of reporting does not warrant a designated frequency.
3 All geographic coordinates (latitude and longitude) are expressed in North American Datum of 1983 (NAD 83).
4 Some monitoring areas extend beyond navigable waters. Although not required, users are strongly encouraged to
maintain a listening watch on the designated monitoring frequency in these areas. Otherwise, they are required
to maintain watch as stated in 47 CFR 80.148.
5 Until rules regarding VTS Lower Mississippi River and VTS Port Arthur are published, vessels are exempted of
all VTS and VMRS requirements set forth in 33 CFR part 161, except those set forth in Sec. Sec. 161.21 and
164.46 of this subchapter.
6 A Cooperative Vessel Traffic Service was established by the United States and Canada within adjoining waters.
The appropriate Center administers the rules issued by both nations; however, enforces only its own set of
rules within its jurisdiction. Note, the bridge-to-bridge navigational frequency, 156.650 MHz (Ch. 13), is not
so designated in Canadian waters, therefore users are encouraged and permitted to make passing arrangements on
the designated monitoring frequencies.
* * * * *
Sec. 161.15 [Amended]
0
6. In Sec. 161.15--
0
a. In paragraph (a), remove the word ``manage'' and add, in its place,
the word ``monitor'';
0
b. In paragraph (a), following the words ``within a VTS'', add the
words ``or VMRS'';
0
c. In paragraph (a) following the words ``directed by the'', remove the
word ``VTS'' and add, in its place, the word ``Center'';
0
d. In paragraph (b), remove the word ``four'' and add, in its place,
the word ``three''; and
0
e. In paragraph (b), following the word ``position'', remove the words
``sailing plan deviation''.
0
7. In Sec. 161.16, revise the introductory text to read as follows:
Sec. 161.16 Applicability.
Unless otherwise stated, the provisions of this subpart apply to
the following vessels and VMRS Users:
* * * * *
0
8. Revise Sec. 161.17 to read as follows:
Sec. 161.17 Definitions.
As used in this subpart:
Center means a Vessel Traffic Center or Vessel Movement Center.
Published means available in a widely-distributed and publicly
available medium (e.g., VTS User's Manual, ferry schedule, Notice to
Mariners).
Sec. 161.18 [Amended]
0
9. In Sec. 161.18--
0
a. In paragraph (a), remove the word ``VTS'' and add, in its place
``Center'';
0
b. In paragraphs (b) and (c), remove the words ``Table 161.12(b) (VTS
Call Signs, Designated Frequencies, and Monitoring Areas)'' and add, in
their place ``Table 161.12(c) (VTS and VMRS Centers, Call Signs/MMSI,
Designated Frequencies, and Monitoring Areas)'';
0
c. Redesignate paragraph (d) as paragraph (e); and
0
d. Add new paragraph (d) to read as follows:
Sec. 161.18 Reporting requirements.
* * * * *
(d) A vessel must report:
(1) Any significant deviation from its Sailing Plan, as defined in
Sec. 161.19, or from previously reported information; or
(2) Any intention to deviate from a VTS issued measure or vessel
traffic routing system.
* * * * *
Sec. 161.20 [Amended]
0
10. In Sec. 161.20--
0
a. In paragraph (a), remove the word ``VTS'' and add, in its place, the
word ``VMRS'';
0
b. In paragraph (c), remove the word ``VTC'' and add, in its place, the
word ``Center''; and
0
c. Remove the note at the end of the section.
0
11. Revise Sec. 161.21 to read as follows:
Sec. 161.21 Automated reporting.
(a) Unless otherwise directed, vessels equipped with an Automatic
Identification System (AIS) are required to make continuous, all
stations, AIS broadcasts, in lieu of voice Position Reports, to those
Centers denoted in Table 161.12(c) of this part.
(b) Should an AIS become non-operational, while or prior to
navigating a VMRS area, it should be restored to
[[Page 39367]]
operating condition as soon as possible, and, until restored a vessel
must:
(1) Notify the Center;
(2) Make voice radio Position Reports at designated reporting
points as required by Sec. 161.20(b) of this part; and
(3) Make any other reports as directed by the Center.
Sec. 161.23 [Amended]
0
12. In Sec. 161.23, in paragraph (b)(1), remove the word ``VTS'' and,
in its place, add the word ``VMRS''; remove paragraph (c); and remove
the note at the end of the section.
Subpart C-Vessel Traffic Service and Vessel Movement Reporting
System Areas and Reporting Points
0
13. Revise the heading for subpart C to read as set forth immediately
above.
PART 164--NAVIGATION SAFETY REGULATIONS
0
14. Revise the authority citation for part 164 to read as follows:
Authority: 33 U.S.C. 1223, 1231; 46 U.S.C. 2103, 3703, 70114,
70117; Pub. L. 107-295, 116 Stat. 2064; Department of Homeland
Security Delegation No. 0170. Sec. 164.13 also issued under 46
U.S.C. 8502. Sec. 164.61 also issued under 46 U.S.C. 6101.
0
15. In Sec. 164.01--
0
a. In paragraph (a) following the words ``except as provided in'',
remove the words ``paragraph (c)'' and, in their place, add the words
``paragraphs (c) and (d)'';
0
b. In paragraph (c) remove the words ``and 164.33'', and, in their
place, add the words ``164.33, and 164.46''; and
0
c. Add a new paragraph (d) to read as follows:
Sec. 164.01 Applicability.
* * * * *
(d) Provisions of Sec. 164.46 apply to some self-propelled vessels
of less than 1600 gross tonnage.
Sec. 164.02 [Amended]
0
16. In Sec. 164.02, at the beginning of paragraph (a), remove the
words ``This part'', and, add in their place, the words ``Except as
provided in Sec. 164.46(a)(2) of this part''.
0
17. In Sec. 164.03(b), add the entry for ``International
Electrotechnical Commission''; under the entry for ``International
Maritime Organization (IMO),'' add entries for Resolution MSC.74(69),
SN/Circ.277, SOLAS 2000 Amendments, Conference resolution 1; and under
the entry for ``International Telecommunications Union
Radiocommunication Bureau (ITU-R)'', add an entry for ITU-R
Recommendation M.1371-1 to read as follows:
Sec. 164.03 Incorporation of reference.
* * * * *
(b) * * *
International Electrotechnical Commission (IEC)
3, rue de Varemb, Geneva, Switzerland.
IEC 61993-2, Maritime navigation and radiocommunication 164.46
equipment and systems--Automatic identification systems
(AIS)--part 2: Class A shipborne equipment of the universal
automatic identification system (AIS)--Operational and
performance requirements, methods of test and required test
results First edition, 2001-12..............................
International Maritime Organization (IMO)
Publication Section, 4 Albert Embankment, London SE1 7SR, United
Kingdom.
Resolution MSC.74(69), Annex 3, Recommendation on Performance 164.46
Standards for a Universal Shipborne Automatic Identification
System (AIS), adopted May 12, 1998..........................
SN/Circ.277, Guidelines for the Installation of a Shipborne 164.46
Automatic Identification System (AIS), dated January 6, 2003
SOLAS, International Convention for Safety of Life at Sea, 164.46
1974, and 1988 Protocol relating thereto, 2000 Amendments,
effective January and July 2002, (SOLAS 2000 Amendments)....
Conference resolution 1, Adoption of amendments to the Annex 164.46
to the International Convention for the Safety of Life at
Sea, 1974, and amendments to Chapter V of SOLAS 1974,
adopted December 12, 2002...................................
International Telecommunication Union Radiocommunication Bureau (ITU-R)
Place de Nations, CH-1211 Geneva 20 Switzerland.
ITU-R Recommendation M.1371-1, Technical characteristics for 164.46
a universal shipborne automatic identification system using
time division multiple access in the VHF maritime mobile
band, 1998-2001.............................................
Sec. 164.43 [Amended]
0
18. In Sec. 164.43--
0
a. Revise the section heading to read ``Automatic Identification System
Shipborne Equipment--Prince William Sound'' ; and
0
b. In paragraph (a), remove the word ``Each'', and add, in its place,
the words ``Until July 1, 2004, each''; and add the words ``under Sec.
165.1704 of this subchapter'' immediately after the words ``Vessel
Traffic Service (VTS)''.
0
19. Add new Sec. 164.46 to read as follows:
Sec. 164.46 Automatic Identification System (AIS).
(a) The following vessels must have an installed, operational AIS
that complies with the IMO Resolution MSC.74(69), ITU-R Recommendation
M.1371-1, and IEC 61993-2, and that is installed using IMO SN/Circ.277
(Incorporated by reference, see Sec. 164.03) as of the date specified.
``Length'' refers to ``registered length'' as defined in 46 CFR, part
69.
(1) Self-propelled vessels of 65 feet or more in length engaged in
commercial service and on an international voyage, not later than
December 31, 2004.
(2) Notwithstanding paragraph (a)(1) of this section, the following
vessels subject to the International Convention for Safety at Life at
Sea, 1974, (SOLAS) as amended, that are on an international voyage must
also comply with SOLAS, chapter V, as amended by SOLAS 2000 Amendments
and Conference resolution 1 (Incorporated by reference, see Sec.
164.03):
(i) Passenger vessels, of 150 gross tonnage or more, not later than
July 1, 2003;
(ii) Tankers, regardless of tonnage, not later than the first
safety survey for safety equipment on or after July 1, 2003;
(iii) Vessels, other than passenger vessels or tankers, of 50,000
gross tonnage or more, not later than July 1, 2004; and
(iv) Vessels, other than passenger vessels or tankers, of 300 gross
tonnage or more but less than 50,000 gross tonnage, not later than the
first safety survey for safety equipment on or after July 1, 2004, but
no later than December 31, 2004.
(b) Notwithstanding paragraphs (a)(1) and (a)(2) of this section,
the following vessels, transiting an area listed in table 161.12(c) of
Sec. 161.12 of this part.
(1) Each self-propelled vessel of 65 feet or more in length,
engaged in commercial service;
(2) Each towing vessel of 26 feet or more in length and more than
600 horsepower;
(3) Each vessel of 100 gross tons or more carrying one or more
passengers for hire; and
(4) Each passenger vessel certificated to carry 50 or more
passengers for hire.
[[Page 39368]]
(c) The vessels listed in paragraph (b) of this section must comply
according to the following schedule:
(1) For VTS St. Marys River, not later than December 31, 2003;
(2) For VTS Berwick Bay, VMRS Los Angeles/Long Beach, VTS Lower
Mississippi River, VTS Port Arthur and VTS Prince William Sound, not
later than July 1, 2004; and
(3) For VTS Houston-Galveston, VTS New York, VTS Puget Sound, and
VTS San Francisco, not later than December 31, 2004.
(d) The requirements for Vessel Bridge-to-Bridge radiotelephones in
Sec. Sec. 26.04(a) and (c), 26.05, 26.06 and 26.07 of this chapter,
also apply to AIS. The term ``effective operating condition'' used in
Sec. 26.06 includes accurate input and upkeep of all AIS data fields,
including estimated time of arrival, destination, and number of people
on board.
(e) The use of a portable AIS is permissible, only to the extent
that electromagnetic interference does not affect the proper function
of existing navigation and communication equipment on board, and such
that only one AIS unit may be in operation at any one time.
(f) The AIS Pilot Plug, on each vessel over 1,600 gross tons, on
international voyage, shall be available for pilot use, easily
accessible from the primary conning position of the vessel, and near an
AC power receptacle.
PART 165--REGULATED NAVIGATION AREAS AND LIMITED ACCESS AREAS
0
20. Revise the authority citation for part 165 to read as follows:
Authority: 33 U.S.C. 1226, 1231; 46 U.S.C. Chapter 701; 50
U.S.C. 191, 195; 33 CFR 1.05-1(g), 6.04-1, 6.04-6, and 160.5; Pub.
L. 107-295, 116 Stat. 2064; Department of Homeland Security
Delegation No. 0170.
Sec. 165.1704 [Amended]
0
21. In Sec. 165.1704, at the beginning of paragraph (c)(6) remove the
words ``Not later than July 1, 1994,'', and, add in their place, the
words ``Until July 1, 2004,''.
Dated: June 23, 2003.
Thomas H. Collins,
Admiral, Coast Guard, Commandant.
[FR Doc. 03-16191 Filed 6-27-03; 8:45 am]
BILLING CODE 4910-15-P
[Federal Register: July 1, 2003 (Volume 68, Number 126)]
[Notices]
[Page 39369-39371]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr01jy03-129]
[[Page 39369]]
-----------------------------------------------------------------------
DEPARTMENT OF HOMELAND SECURITY
Coast Guard
[USCG-2003-14878]
Automatic Identification System; Expansion of Carriage
Requirements for U.S. Waters
AGENCY: Coast Guard, DHS.
ACTION: Notice; request for comments.
-----------------------------------------------------------------------
SUMMARY: The Maritime Transportation Security Act of 2002 requires
certain vessels to carry an Automatic Identification System. In an
interim rule published elsewhere in today's Federal Register, the Coast
Guard is requiring Automatic Identification System carriage as agreed
to by the international community in amendments to the International
Convention for the Safety of Life at Sea, 1974, and as directed by the
Maritime Transportation Security Act. That rulemaking, however, covers
only vessels on international voyages and certain vessels on specified
waterways of the United States. This notice solicits comment on how
best to address implementation on the remaining navigable waters of the
U.S. for vessels not on international voyages.
DATES: Comments and related material must reach the Docket Management
Facility on or before September 29, 2003.
ADDRESSES: To make sure that your comments and related material are not
entered more than once in the docket, please submit them by only one of
the following means:
(1) By mail to the Docket Management Facility (USCG-2003-14878),
U.S. Department of Transportation, room PL-401, 400 Seventh Street SW.,
Washington, DC 20590-0001.
(2) By delivery to room PL-401 on the Plaza level of the Nassif
Building, 400 Seventh Street SW., Washington, DC, between 9 a.m. and 5
p.m., Monday through Friday, except Federal holidays. The telephone
number is 202-366-9329.
(3) By fax to the Docket Management Facility at 202-493-2251.
(4) Electronically through the Web Site for the Docket Management
System at http://dms.dot.gov.
The Docket Management Facility maintains the public docket for this
notice. Comments and material received from the public will become part
of this docket and will be available for inspection or copying at room
PL-401 on the Plaza level of the Nassif Building, 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.
FOR FURTHER INFORMATION CONTACT: If you have questions on this notice,
contact Mr. Jorge Arroyo, Office of Vessel Traffic Management (G-MWV-
1), U.S. Coast Guard Headquarters, telephone: 202-267-6277, fax: 202-
267-4826 or e-mail: jarroyo@comdt.uscg.mil. If you have questions on
viewing or submitting material to the docket, call Ms. Dorothy Beard,
Chief, Dockets, Department of Transportation, telephone: 202-366-5149.
SUPPLEMENTARY INFORMATION:
Request for Comments
We encourage you to participate by submitting comments and related
material. If you do so, please include your name and address, identify
the docket number [USCG-2003-14878], indicate the specific question of
this document to which each comment applies, and give the reason for
each comment. You may submit your comments and material by mail, hand
delivery, fax, or electronic means to the Docket Management Facility at
the address under ADDRESSES; but please submit your comments and
material by only one means. If you submit them by mail or hand
delivery, submit them in an unbound format, no larger than 8\1/2\ by 11
inches, suitable for copying and electronic filing. If you submit them
by mail and would like to know they reached the Facility, please
enclose a stamped, self-addressed postcard or envelope. We will
consider all comments and material received during the comment period.
Your comments and any other matters you bring to our attention during
the comment period will be taken into account in Coast Guard actions
regarding the issues raised in the Questions section below.
Note, matters pertaining to AIS licensing, equipment certification,
and frequencies are subject to Federal Communications Commission
regulations and are not addressed in this notice, see FCC Public Notice
DA 02-1362 in the docket for further information.
Background and Purpose
The Maritime Transportation Security Act of 2002 (MTSA), Public Law
107-295, was enacted November 25, 2002, and requires that four specific
categories of vessels be equipped with and operate an Automatic
Identification System (AIS). These categories are--
1. Self-propelled commercial vessels 65 feet or more in length;
2. Vessels carrying more than a number of passengers for hire
determined by the Secretary of the agency in which the Coast Guard is
operating;
3. Towing vessels of more than 26 feet in length and 600
horsepower; and
4. Other vessels for which the Secretary determines AIS is
necessary for safe navigation of the vessel. (46 U.S.C. 70114(a)(1)(A)-
(D)).
Under the MTSA, vessels that must be equipped with AIS must use it
in all navigable waters of the United States, unless the Secretary
finds that AIS is not needed for safe navigation on specified navigable
waters. If such a finding is made, the Secretary may waive the AIS
requirements in those waters (46 U.S.C. 70114(a)(2)(B)). The MTSA also
allows the Secretary to exempt a vessel from the AIS requirement if the
Secretary finds that AIS is not necessary for the safe navigation of
the vessel on the waters on which the vessel operates (46 U.S.C.
70114(a)(2)(A)).
In an interim rule published elsewhere in today's Federal Register,
titled ``Automatic Identification System; Vessel Carriage Requirement''
(Docket USCG-2003-14757, RIN 1625-AA67), the Coast Guard will require
the following vessels to install and operate AIS:
(1) Vessels subject to the International Convention for the Safety
of Life at Sea, 1974, (SOLAS) and on international voyage, under the
schedule set forth in SOLAS chapter V, regulation 19.2.4;
(2) Vessels not subject to SOLAS that are 65 feet or more in
length, in commercial service and on an international voyage, by
December 31, 2004; and
(3) The following Vessel Traffic Service (VTS) and Vessel Movement
Reporting System (VMRS) users:
(i) Self-propelled vessels of 65 feet or more in length, in
commercial service;
(ii) Towing vessels 26 feet or more in length and more than 600
horsepower;
(iii) Vessels of 100 gross tons or more carrying one or more
passengers for hire; and
(iv) Passenger vessels certificated to carry 50 or more passengers
for hire.
These vessels must comply: by December 31, 2003, within VTS St.
Marys River; by July 1, 2004, within VTS Berwick Bay, VMRS Los Angeles/
Long Beach, VTS Lower Mississippi River, VTS Port Arthur and VTS Prince
William Sound; by December 31, 2004, within VTS Houston-Galveston, VTS
New York, VTS Puget Sound, and VTS San Francisco.
The Coast Guard recognizes the benefits of AIS and has been a
leading
[[Page 39370]]
proponent of AIS technology since its inception. AIS is an effective
navigation and communications tool for reducing collisions, enhancing
situational awareness, and playing a part in U.S. maritime domain
awareness. Its corollary function, as a surveillance tool, has taken on
greater import in these times of heightened vigilance and proactive
homeland security. Achieving accurate, real-time maritime domain
awareness is of vital interest to the Coast Guard and the Nation.
Congress passed the MTSA and the international community, upon the
initiative of the Unites States and through the actions of the
International Maritime Organization (IMO), amended SOLAS to accelerate
the implementation of AIS.
Our AIS interim rule (USCG-2003-14757), published elsewhere in
today's Federal Register, is the first step in that process. That
interim rule will implement AIS in accordance with the schedule agreed
to at the IMO Diplomatic Conference held in December 2002 on vessels on
international voyages (see table below), and it also imposes an AIS
requirement on all commercial VTS and VMRS users.
Table--SOLAS AIS Schedule (Chapter V, Regulation 19.2.4) for Vessels on International Voyages
----------------------------------------------------------------------------------------------------------------
Constructed Type of vessel Implementation date
----------------------------------------------------------------------------------------------------------------
On or after July 1, 2002................... All.............................. July 1, 2002.
Before July 1, 2002........................ Passenger ships (carrying 12 or July 1, 2003.
more passengers).
Tankers.......................... First survey for safety
equipment on or after July 1,
2003.
Ships, other than passenger ships July 1, 2004
and tankers, greater than or
equal to 50,000 gross tonnage.
Ships, other than passenger ships First safety equipment survey
and tankers, greater than or after July 1, 2004, or by
equal to 300, but less than December 31, 2004, whichever
50,000 gross tonnage. occurs earlier.
----------------------------------------------------------------------------------------------------------------
The process of deploying this technology into all existing and
future VTS areas is well underway. The Coast Guard intends to expand
the safety and security benefits of AIS by extending the shore-tracking
surveillance capability throughout our Nation's waterways as a major
element of maritime domain awareness and homeland security.
Design and installation of the expanded capability is underway but
not yet fully operational. Therefore, we want to take this opportunity
to ask some questions of the public to (1) assist us in developing an
overall AIS strategy, and (2) address expanded carriage of AIS beyond
SOLAS vessels, VTS and VMRS areas, and certain other commercial and
non-commercial vessels that are omitted from the AIS interim rule
(USCG-2003-14757) published elsewhere in today's Federal Register.
Questions
We need the public's assistance in answering the following
questions, and any additional information provided on this topic is
welcome. In responding to each question, please explain your reasons
for each answer as specifically as possible so that we can carefully
weigh the consequences and impacts of any future actions we may take.
In preparing your response to these questions, please indicate your
position in the maritime industry as well as the type of vessel, cargo,
and charter agreement specific to your situation, if applicable.
(1) Recognizing that AIS may ultimately be required on all
navigable waters, what particular waterways or ports should be
implemented before others?
(2) Are there particular waterways where the AIS requirements
should be waived? Why?
(3) AIS is not specifically mandated (by the MTSA) on all vessels.
The MTSA, however, does allow the Secretary to require AIS on any
vessel if deemed necessary for safe navigation. Should other vessels
(e.g., commercial vessels under 65 feet in length, towing vessels under
26 feet and 600 horsepower, dredges and floating plants, recreational
vessels, offshore facilities, or Mobile Offshore Drilling Units) be
required to have AIS?
(4) SOLAS expects nations to implement their AIS carriage on their
domestic fleet (vessels over 500 gross tonnage and passenger vessels
not on international voyage) not later than July 1, 2008. However, the
MTSA requires AIS by December 31, 2004. Knowing this, should certain
vessels be granted temporary exemptions regarding the compliance dates
in MTSA?
(5) Under what circumstances, if any, should a vessel be exempted
from the AIS requirements per the MTSA exemption?
(6) SOLAS defines a passenger vessel as carrying 12 or more
passengers. VTS regulations define VTS users as passenger vessels over
100 gross tons carrying 1 or more passengers or those certificated to
carry 50 or more passenger. The MTSA allows the Secretary to determine
the threshold number of passengers when determining which passenger
vessels are required to have AIS. Should we expand AIS carriage beyond
what is already defined in SOLAS and our rule?
(7) Should the Coast Guard encourage or require the use of systems
such as electronic chart display and information system (ECDIS) and
electronic chart system (ECS) to display AIS information to enhance
navigation safety? Are there other systems that could be used for this
purpose?
(8) Would you be more likely to install an ECDIS or ECS on your
vessel, to display AIS information, if the system could be used to
comply with an existing requirement to carry nautical charts?
As noted previously, comments regarding these questions, and any
other pertinent matters brought to our attention during the comment
period, will be taken into account in our future actions regarding the
issues raised by these questions.
Public Meeting
The Coast Guard is considering having two public meetings on this
topic, in addition to the public meeting announced in the AIS interim
rule, published elsewhere in today's Federal Register. We would like
your comments on the questions and particular issues that should be
addressed at these meetings, as well as where the meetings should be
held. Send your comments requesting a public meeting to the Docket
Management Facility at the address under ADDRESSES. We will announce a
time and place for each meeting by a later notice in the Federal
Register.
[[Page 39371]]
Dated: June 23, 2003.
Thomas H. Collins,
Admiral, U.S. Coast Guard Commandant.
[FR Doc. 03-16192 Filed 6-27-03; 8:45 am]
BILLING CODE 4910-15-P