Below is a more detailed analysis of the Notice of Proposed Rulemaking that
will be published in Monday Dec. 29 2014’s Federal Register, at www.gpo.gov/fdsys/pkg/FR-2014-12-29/pdf/2014-30013.pdf.
For the record, my comments are based on 10 years’ work with MTSA facilities. Some of that experience was obtained while
employed in the job capacity of Facility Security Officer. My opinions are also
informed by experience working for and with federal, state, and local public
safety and security agencies beginning in 1976 and continuing until 2003. The
comments are my own and do not reflect the opinions of the University of
Findlay.
The proposed rule will “require each owner or operator of a
MTSA-regulated facility to implement a system for providing seafarers and other
individuals with access between vessels moored at the facility and the facility
gate. Each owner or operator would be required to implement a system, within 1
year after publication of the final rule, that incorporates specific methods of
providing access in a timely manner, at no cost to the individual, and in
accordance with existing access control provisions in 33 CFR part 105. We also
propose to require each owner or operator to ensure that the FSP includes a
section describing the system for seafarers’ access.
This rule would not affect the authority of the U.S. Customs and Border
Protection (CBP) to inspect and process individuals seeking entry to the U.S.
For those seafarers and other individuals subject to CBP’s authority, this rule
would apply to facility owners and operators only after such seafarers and
other individuals have been inspected, processed, and admitted to the U.S. by
CBP.”
What does the NPRM contain?
Section 811 of the Coast Guard Authorization Act of 2010 (Pub. L. 111–281)
(CGAA 2010), requires facility owners and operators to ensure shore access for
seafarers and other individuals. Specifically, section 811 requires each
MTSA-regulated facility to ‘‘provide a system for seamen assigned to a vessel at that facility, pilots, and representatives of seamen’s
welfare and labor organizations to board and depart the vessel through the
facility in a timely manner at no cost to the individual.’’ This new rule
implements that section. The shore leave initiative is largely the work of the Seamen’s
Church Institute. SCI has been conducting annual surveys of seafarers’ shore
leave detentions and restrictions on seafarers’ and chaplains’ access through
terminals in United States ports since 2002. For more information, see http://seamenschurch.org/primary-category/shore-leave.
This regulation requires owner/operators to provide timely access
without unreasonable delay through the facility at no cost to the individual to
seafarers and other individuals. Certain factors are specified to be used in
determining whether the access is timely. Certain methods are to be used in
granting access. A new FSP section on seafarer access is created, and the
contents of the section are detailed.
Specifically, the proposed new rule:
Inserts a new federalism section into 33 CFR 101, 101.112, stating that
33 CFR 105 preempts State or local regulations if there is a conflict between
33 CFR 105 and State and local regulations.
Amends 105.200. Clarifies acronyms, clarifies wording. Major changes:
CHANGES (b)(1) (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;
TO (b)(1)(1) Define the organizational structure of the security
personnel and provide each person exercising security duties and
responsibilities the support needed to fulfill those obligations;
CHANGES 105.200, (b)(9) ,
“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. In coordinating such leave,
facility owners or operators may refer to treaties of friendship, commerce, and
navigation between the U.S. and other nations;”
TO “Ensure implementation of a system, in accordance with § 105.237 of
this subpart, coordinating shore leave for vessel personnel or crew change-out,
as well as access through the facility for visitors to the vessel, as described
in § 105.237(b)(4) of this subpart, with vessel operators in advance of a
vessel's arrival. In coordinating such leave, facility owners or operators may
refer to treaties of friendship, commerce, and navigation between the U.S. and
other nations;”
Inserts new section 105.237, System for seafarers access. This section
has 6 subsections. (a) sets out the requirement that the facility must provide
seafarers timely access at no cost to the individual, complying with the
requirements of the TWIC program. Access
must be by a method specified in this section. (b) gives a list of the types of
individuals who needs to be given this access. It is an expansion of the list
given in the current version of 105.200 (b)(9), and includes a “catch-all”
“other authorized individuals classification. (c) gives a list of factors that
the owner/operator must consider when deciding the issue of “timeliness”.
Owner/operators must provide the access in a timely manner without unreasonable
delay, subject to review by the Coast Guard. The Coast Guard will review each
FSP to ensure that the facility owner/operator has “appropriately considered”
the factors listed in (c). (d) is a list of the 6 methods that may be used to
perform the access. Methods allowed include types of escorting, use of third
parties, monitoring, or some other arrangement with the permission of the Coast
Guard. The method(s) included in the FSP will be subject to Coast Guard review
and approval. The Coast Guard states that “We assume that most facilities would
choose monitoring (Method 5) since the majority of them are small enough that
existing security guards and/or monitoring equipment in place would be
sufficient. However, if facilities choose this method, we anticipate 1 hour of
training annually to review security protocol in the event that a seafarer
leaves the designated passageway.” If a third party is used, a back-up method
must be specified in case the third party is unable to or does not provide the
required access. (e) sets out the requirement for “at no cost to the
individual.” (f) describes the content of the new FSP section This is the new
Section 9, System for seafarer access, which is the documentation of the
facility’s system for providing the access as described in 105.237.
Complete text of this new section 105.237:
(a) Access Required. Each facility owner or operator must implement a
system by (365 DAYS AFTER DATE OF PUBLICATION OF FINAL RULE) for providing
access through the facility that enables individuals to transit to and from a
vessel moored at the facility and the facility gate in accordance with the
requirements in this section. The system must provide timely access as
described in paragraph (c) of this section and incorporate the access methods
described in paragraph (d) of this section at no cost to the individuals
covered. The system must comply with the Transportation Worker Identification
Credential provisions of this part.
(b) Individuals Covered. The individuals to whom the facility owner or
operator must provide the access described in this section include—
(1) The seafarers assigned to a vessel moored at the facility;
(2) The pilots and other authorized personnel performing work for a
vessel moored at the facility;
(3) Representatives of seafarers’ welfare and labor organizations; and
(4) Other authorized individuals in accordance with the Declaration of
Security (DoS) or other arrangement between the vessel and facility.
(c) Timely Access. The facility owner or operator must provide the
access described in this section without unreasonable delay, subject to review
by the Captain of the Port (COTP). The facility owner or operator must consider
the following when establishing timely access without unreasonable delay:
(1) Length of time the vessel is in port.
(2) Distance of egress/ingress between the vessel and facility gate.
(3) The vessel watch schedules.
(4) The facility’s safety and security procedures as required by law.
(5) Any other factors specific to the vessel or facility that could
affect access to and from the vessel.
(d) Access Methods. The facility owner or operator must ensure that the
access described in this section is provided through one or more of the
following methods:
(1) Regularly scheduled escort between the vessel and the facility gate
that conforms to the vessel’s watch schedule as agreed upon between the vessel
and facility.
(2) An on-call escort between the vessel and the facility gate.
(3) Arrangements with taxi services, ensuring that any costs for
providing the access described in this section, above the taxi’s standard fees
charged to any customer, are not charged to the individual to whom such access
is provided. If a facility provides arrangements with taxi services as the only
method for providing the access described in this section, the facility is
responsible to pay the taxi fees for
transit within the facility.
(4) Arrangements with seafarers’ welfare organizations to facilitate
the access described in this section.
(5) Monitored pedestrian access routes between the vessel and facility
gate.
(6) A method, other than those in paragraphs (d)(1) through (d)(5) of
this section, approved by the COTP.
(7) If an access method relies on a third party, a back-up access
method that will be used if the third-party is unable to or does not provide
the required access in any instance. An owner or operator must ensure that the
access required in paragraph (a) of this section is actually provided in all
instances.
(e) No cost to individuals. The facility owner or operator must provide
the access described in this section at no cost to the individual to whom such
access is provided.
(f) Described in the Facility Security Plan (FSP). On or before [INSERT
DATE 10 MONTHS AFTER PUBLICATION OF THE FINAL RULE], the facility owner or
operator must document the facility’s system for providing the access described
in this section in the approved FSP in accordance with 33
CFR 105.410 or 33 CFR 105.415. The description of the facility’s system
must include.
(1) Location of transit area(s) used for providing the access described
in this section;
(2) Duties and number of facility personnel assigned to each duty
associated with providing the access described in this section;
(3) Methods of escorting and/or monitoring individuals transiting
through the facility;
(4) Agreements or arrangements between the facility and private
parties, nonprofit organizations, or other parties, to facilitate the access
described in this section; and
(5) Maximum length of time an individual would wait for the access
described in this section, based on the provided access method(s).
CHANGES 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).
TO: 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. 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) System for seafarers access;
(10) Security systems and equipment maintenance;
(11) Security measures for access control, including designated public
access areas;
(12) Security measures for restricted areas;
(13) Security measures for handling cargo;
(14) Security measures for delivery of vessel stores and bunkers;
(15) Security measures for monitoring;
(16) Security incident procedures;
(17) Audits and security plan amendments;
(18) The Facility Security Assessment (FSA) report; and
(19) The Facility Vulnerability and Security Measures Summary (Form
CG-6025) in appendix A to part 105-Facility Vulnerability and Security Measures
Summary (CG-6025).
Who will be affected by the NPRM?
The individuals granted access and the 2,498 facilities subject to
MTSA.
Why does the USCG consider that a regulation is necessary?
Section 811 of the Coast Guard Authorization Act of 2010 (Pub. L. 111–281)
(CGAA 2010) “requires facility owners and operators to ensure shore access for
seafarers and other individuals. Specifically, section 11 requires each
MTSA-regulated facility to ‘‘provide a system for seamen assigned to a vessel
at that facility, pilots, and representatives of seamen’s welfare and labor
organizations to board and depart the vessel through the facility in a timely
manner at no cost to the individual.’’ The Coast Guard has decided that the
provisions of this NPRM satisfy the requirements of the CGAA 2010 through a
regulatory flexibility that offers the least costly of any alternative.
What are the costs of this proposed regulation?
There is a detailed cost break-down in the introductory material in the
Federal Register notice. Some factors that I noticed when looking at the Coast
Guard’s estimates of who will be affected by regulation, which will affect cost. The Coast Guard states that in January 2010,
62% of all FSPs had been reviewed and only 4% lacked adequate seafarers access
provisions, while stating elsewhere that 33 CFR does not require seafarer
access measures that are “adequate” for the purposes of the CGAA 2010. There is a huge difference between placing a
sentence in an FSP to the effect, “The facility has procedures in place to
ensure timely access of seafarers at no cost to the individual” and actually
having a program in effect that meets the standards of the CGAA2010 and can be described
out to that standard. I have looked at many FSPs and I don’t see what the Coast
Guard is apparently seeing. It is not in the current plans because aside from
the brief mention in the list of owner/operator responsibilities, shore leave or
seafarers access is not covered in 33 CFR 105. I think the figure of facilities
whose plans and programs will be affected is much higher than 10% and the
corresponding cost of this regulation will be much higher.
What are the benefits of this proposed regulation?
The regulation will grant access to around 907 seafarers annually. It will put into action a section of law
passed in 2010. It will align us more closely with the Intent of the
International Ship and Port Facility Security Code.
What timelines are involved?
The Coast Guard intends to hold a public meeting on this regulation in
Washington, DC January 23, 2015 from 9:00 a.m. to 12:00 p.m. The deadline to reserve
a seat is January 16, 2015. Comments need to be submitted by February 27, 2015.
FSPs would need to be updated within 10
months after publication of the final rule.
What will the average MTSA facility need to do to comply with this new
regulation, if the final rule closely resembles this NPRM?
1. Codify the existing shore leave procedures if they have not been
captured in policy or post orders. The vessel agents who service your dock are
always a good source of information and advice. For example, if your policy
states that the vessel needs to contact the security detail via cell phone to
arrange for the on-call escort, the vessel agent will know or be able to find
out the availability of cell phones on the vessels.
2. Decide which of the 6 methods
of providing access is right for your operation. If a third-party escort
service will be utilized, be sure to provide a back-up method. If you have a
method that is not mentioned in the new rule that you wish the Coast Guard to
consider, you should get the Coast Guard approval for this method in advance of
FSP submission. Contact your petty officer to see how he/she wants you to
handle this issue.
3. Absent any further policy on
the subject, use the format in 105.237 (f) for the FSP Section. You can add
anything you like to this section but these 5 elements (or however many survive
in the final rule) must be included in the section.
3. Don’t wait til the very end of the 10-month period to submit your amended
FSP! Depending on your location, the inspection corps may have a heavy lift at
this time.
What does the Notice say about submitting comments?
The Notice gives the procedure for submitting comments. The docket number is USCG–2013–1087. In the
Notice, on pp.77987-77988, the Coast Guard has a list of topics on which they
specifically request comments. From past presentations on the comment process, the
Coast Guard has advised:
1. Don’t include comments about unrelated topics
2. Form letters aren’t particularly effective
3. Suggest solutions to identified
problems or criticisms
