On Monday April 1, 2019, the U.S Coast Guard
will issue the Final Rule on Seafarers Access to Maritime Facilities at https://www.govinfo.gov/content/pkg/FR-2019-04-01/pdf/2019-06272.pdf.
The Federal Register section consists of a very enlightening preamble followed
by the actual sections of 33 CFR 105 that will be amended.
Here are some details
on the Final Rule. All quotations are from the Rule.
What? All MTSA facilities must implement a system
providing seafarers, pilots, and representatives of seamen’s welfare and labor
organizations access
Where? Between vessels moored at the facility
and the facility gate
How? In a timely manner and at no cost to
the seafarer or other individuals.
What are the timelines? The Final Rule is effective May 01, 2019. The new Sec. 21 of the Facility Security
Plan (FSP), System for Seafarers Access, needs to be submitted to the Coast
Guard for review by 02/01/2020, for implementation by 06/01/2020. Most
facilities are already in compliance with granting seafarer’s access, but may
not be meeting all the specific requirements of the Rule. Note: please talk to
your petty officer before submitting. Depending on when your FSP needs to be
annually inspected or re-approved, the Coast Guard may want you to submit this
section in alignment with the annual compliance review or reapproval process,
for Coast Guard workload considerations.
The amendments to 33 CFR
105 are included at the end of this post.
Why did this regulatory
action come about? The
Seaman’s Church Institute tracked and documented a troubling pattern of
restrictions on access for seafarers and seafarer welfare providers over a
period of years. Despite actions on the
part of the Coast Guard to ensure resolution of access problems short of
regulation, access continued to be restricted. Congress took notice and Sec.
811 was included in the Coast Guard Authorization Act of 2010 (Pub. L. 111-281)
requiring “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.’’ A Notice of Proposed
Rule Making (NPRM) published in 2014 resulted. The Coast Guard held a public
meeting on the issues in Washington, D.C. in early 2015.The comment period on
the NPRM closed in February 2015 but the Coast Guard reopened and extended the
comment period for an additional 60 days.
More details:
Who is the ‘seafarer” and
who are the people who need to be given
access? Seafarers are seafarers
assigned to a vessel at that facility. Only foreign seafarers who have proper
visa credentialing are affected by this rule. The NPRM considered family
members to be among the persons to be given access. This class of people has been eliminated in
the final rule. The persons to be given access are pilots and representatives
of seamen’s welfare and labor organizations.
How is this access to be
accomplished? By using
one of these 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 or other transportation services, ensuring that any costs for providing the access described
in this section, above the service’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 or other transportation services as the only method for providing the
access described in this section, the facility is responsible to pay any 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 (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.
What is “in a timely
manner”? The Captain of
the Port (COTP) will decide if the manner is timely.
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.
What is “no cost”? There is an excellent discussion of
this issue in the preamble to the Final Rule. “No cost” means two things: “no
cost to the seafarer” and also “no cost that is somehow underhandedly passed
onto the seafarer”, as in the facility bills the vessel for the costs of this
access who takes the cost out of the seafarers’ wages. On p. 12104 of the
Federal Register, there is a very stern notice about what the Coast Guard is
going to do if it finds out that fees as a condition of shoreside access are
being imposed on seafarers.
From the preamble, on costs:
The CGAA
does not specify who should pay for no-cost access for seafarers. Ultimately,
the Coast Guard determined that it is the facility’s responsibility to provide
the no cost service, as Coast Guard regulations already require each facility
to have an approved FSP, which must now include a system for providing no-cost
access to the facility for certain individuals.
However,
the Coast Guard declined to specifically prohibit charges to the vessel, and
let parties decide the allocation of costs between facility and vessel. This
rule provides flexibility to facilities on how to comply with the mandate and
how to provide no-cost access for seafarers, as long as its solution does not
result in a cost to seafarers.
What must my new FSP Section
22, System for seafarers’ access, include?
On or
before February 3, 2020, 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 § 105.410 or § 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).
What about TWIC and
seafarer access?
From
the preamble:
….
this rule does not change existing
TWIC requirements, and whether escorts are or are not required under TWIC rules
does not affect the obligation to provide no-cost access to the seafarer. The
facility has flexibility to decide how to comply with its TWIC requirements
and the no-cost access requirements of this rule… Congress requires MTSA-regulated facilities
to grant access through the facility to seafarers at no cost to the seafarer.
This rule does not change the requirement to escort or otherwise monitor the
access of a person who is not authorized to have unescorted access to the
facility.
What about safety concerns
when granting this access?
From the preamble:
“This final rule provides facility owners and operators
with flexibility to ensure the safe passage of seafarers to and from the
facilities’ gates through a
variety of methods. It remains the responsibility of the facility owner or
operator to ensure safety in accordance with the approved FSP on file. If conditions are unsafe or overly burdensome
at certain facilities, mariners are encouraged to contact the local COTP to
report such unsafe or overly burdensome conditions.”
What about facilities
operating under an Alternate Security Program (ASP)?
From the preamble:
“Each facility operating under a Coast Guard-approved ASP
must include seafarer access as directed by the ASP itself. This may be in the
form of an annex or appendix explaining how the facility will comply with this rule. This document must be
submitted to and approved by the cognizant COTP in the location of the facility
submitting the annex.”
PART 105—MARITIME SECURITY: FACILITIES
■ 1. The authority citation for part 105 is revised to read
as follows:
Authority: 33 U.S.C. 1226, 1231; 46 U.S.C. 70103;
50 U.S.C. 191; Sec. 811, Pub. L. 111–
281, 124 Stat. 2905; 33 CFR 1.05–1, 6.04–11, 6.14, 6.16,
and 6.19; Department of
Homeland Security Delegation No. 0170.1.
§ 105.200 [Amended]
■ 2. Amend § 105.200 as follows:
■ a. In paragraph (b)(1), remove the words ‘‘security
organizational structure’’ and add in their place the words ‘‘organizational
structure of the security personnel’’ and remove the words ‘‘within that
structure’’;
■ b. In paragraph (b)(4), remove the text ‘‘an FSP’’ and
add in its place the text ‘‘a Facility Security Plan (FSP)’’;
■ c. In paragraph (b)(6) introductory text, remove the
acronym ‘‘TWIC’’ and add in its place the words ‘‘Transportation Worker
Identification Credential (TWIC)’’;
■ d. In paragraph (b)(6)(i), after the words ‘‘FSP are
permitted to’’ add the words ‘‘serve as an’’;
■ e. In paragraph (b)(6)(ii), remove the word ‘‘should’’
and add in its place the words ‘‘in the event that’’;
■ f. In paragraph (b)(6)(iii), remove the word ‘‘what’’,
and add in its place the word ‘‘which’’ and after the words ‘‘are secure areas
and’’ add the words ‘‘which are’’;
■ g. In paragraph (b)(9), remove the text ‘‘coordination
of’’ and add in its place the text ‘‘implementation of a system, in accordance
with § 105.237, coordinating’’ and remove the text
‘‘(including representatives of seafarers’ welfare and
labor organizations)’’ and add in its place the text ‘‘, as described in §
105.237(b)(3)’’; and
■ h. In paragraph (b)(14), remove the text ‘‘TSA’’ and add
in its place the text ‘‘Transportation Security Administration (TSA)’’.
■ 3. Add § 105.237 to read as follows:
§ 105.237 System for seafarers’ access.
(a) Access required. Each facility owner or operator
must implement a system by June 1, 2020 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 (TWIC) provisions in this part.
(b) Individuals covered. The individuals to whom the
facility owner or operator must provide the access described in this section
include—
(1) Seafarers assigned to a vessel at that facility;
(2) Pilots; and
(3) Representatives of seafarers’ welfare and labor
organizations.
(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 or other transportation
services, ensuring that any costs for providing the access described in this
section, above the service’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 or
other transportation services as the only method for providing the access described
in this section, the facility is responsible to pay any 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
(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 February 3, 2020, 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 § 105.410 or
§ 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).
■ 4. Amend § 105.405 as follows:
■ a. In paragraph (a)(18), remove the text ‘‘part 105;
and,’’ and add in its place ‘‘this part;’’;
■ b. In paragraph (a)(21), remove the period at the end of
the paragraph and add in its place ‘‘; and’’; and
■ c. Add paragraph (a)(22).
The addition reads as follows:
§ 105.405 Format and content of the Facility
Security Plan (FSP).
(a) * * *
(22) System for seafarers’ access.
* * * * *
Dated: March 27, 2019.
Jennifer F. Williams,
Captain, U. S. Coast Guard, Director of
Inspections and Compliance.
