Coast Guard Issues Final Rule on Seafarers' Access to Maritime Facilities

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.

Sen John Thune (R-S.D.) introduces S.763, the Surface Transportation and Maritime Security Act.

On March 30, 2017, Sen John Thune (R-S.D.) introduced S.763, the Surface Transportation and Maritime Security Act.  Sen. Thune is Chairman of the Senate Committee on Commerce, Science, and Transportation. He’s been in the Senate since 2005 and has served in powerful positions within that body. From Sen. Thune’s website, at https://www.thune.senate.gov/public/index.cfm/press-releases?ID=065CC562-BCB2-49FD-82EA-6CE3285E7947:

U.S. Sen. John Thune (R-S.D.), chairman of the Senate Committee on Science, Commerce, and Transportation, joined Sens. Bill Nelson (D-Fla.), Deb Fischer (R-Neb.), and Cory Booker (D-N.J.) in reintroducing S. 763, the Surface Transportation and Maritime Security Act. The legislation, which is substantially similar to the bill introduced late last Congress, would address deficiencies in the Transportation Security Administration’s (TSA) efforts to protect rail, transit, highway, and maritime passenger and freight transportation.

“To keep Americans safe, Congress must continually focus attention on areas of neglect and potential weakness to keep them from becoming targets for terrorism,” said Thune. “The Commerce Committee will soon vote on these important reforms for the TSA.”

The legislation would address concerns, raised by independent government watchdog agencies, that TSA is not adequately positioned to identify security risks across different modes of transportation or effectively support federal, state, local and private providers of transportation security. TSA has previously said in testimony to Congress that it uses only three percent of its budget on surface transportation security.

Highlights of the Surface Transportation and Maritime Security Act:

Enhances Risk-Based Security Planning

• Requires the TSA administrator to conduct a risk analysis and implement a risk-based security model for surface transportation facilities.
• Mandates risk-based budgeting for surface transportation security focusing resources on current threats with annual reviews of program effectiveness.

Canine Explosive Detection Teams for Surface Transportation

• Authorizes as many as 70 additional canine teams to work in surface transportation security as soon as possible.
• Requires a review of the number, location, and utilization of canine teams in surface transportation security to ensure effective use.
• Following this review and the implementation of recommendations, TSA may then raise the total number of canine teams to 200 or higher as identified in TSA’s risk-based analysis. 

Increases Transparency

• Mirroring the advisory committee for aviation established by the Aviation Security Stakeholder Participation Act of 2014, establishes a Surface Transportation Advisory Committee to provide stakeholders and the public with the opportunity to coordinate with the agency and comment on policy and pending regulations. 
• Requires that TSA budget submissions clearly indicate which resources will be used for surface transportation security and which will be dedicated to aviation.
• Directs TSA to regularly update Congress on the status of long overdue surface transportation rulemakings.

Enhances Passenger Rail Security

• Authorizes the use of computerized vetting systems for passenger rail at the request of Amtrak police and the Amtrak Board of Directors.
• Allows grant funding to be used to enhance passenger manifest data so that rail passengers can be identified in case of emergency.

From a quick read of the text of the bill, link from the Senator's website:

The vulnerability assessment off surface transportation modes required of the bill must evaluate  the vetting and security training of employees in maritime transportation and other individuals with access to sensitive or secure areas of transportation networks.

The  Commandant of  the  Coast Guard shall  coordinate  with  the Administrator (of the TSA) to  provide  input  and  other  information regarding  the vulnerabilities of  and  risks  to maritime facilities.  

RISK-BASED SECURITY STRATEGY-

(1)   In GENERAL - Not   later   than   180 days after  the  date  the  security  assessment  from subsection (a)  is  complete, the  Administrator  shall  use the  results  of  the assessment-

(A)  to develop  and  implement  a cross-cutting, risk-based  security strategy that      includes

(i) all surface transportation modes;

(ii)  to the  extent  the Transportation Security  Administration   provides support in maritime transportation security efforts, maritime  transportation;

(B)  coordinate with  the  Commandant   of the  Coast Guard-

(i)         to evaluate existing maritime transportation  security  programs, policies, and initiatives   for  consistency with  the risk-based  security strategy and, to the extent practicable, avoid any unnecessary duplication   of effort;

(ii)  to   ensure   there  are   no security gaps between  jurisdictional  authorities that a threat can exploit to  cause  harm;

(iii)  to determine  the  extent  to which    stakeholder   security programs, policies, and   initiatives  address  the  vulnerabilities and  risks to  maritime transportation systems, identified in subsection (a); and

(iv)  subject  to clauses  (ii)  and (iii), to mitigate each  vulnerability and       risk   to maritime transportation systems identified in subsection (a).

180 days after the date that the security assessment is completed, TSA shall submit to the appropriate Congressional committees a report that includes, among other items, any   recommended   changes  to the National  Infrastructure Protection  Plan, the  modal   annexes  to the NIPP, or  relevant surface  or  maritime transportation security  programs,   policies, or initiatives.

BUDGET TRANSPARENCY - ln submitting the annual  budget  of  the  United  States  Government under Section 1105  of title 81,  United States Code,  the President  shall clearly distinguish  the  resources requested for surface and maritime transportation  security from  the  resources requested for aviation security.

SURFACE TRANSPORTATION SECURITY ADVISORY COMMITTEE   - The   TSA Administrator shall establish  within  the TSA the Surface Transportation  Security Advisory  Committee.  Voting members to serve in a volunteer, non-paid  basis and consist of representatives from associations  representing the  modes of surface transportation;  labor organizations  representing the modes; groups representing  the  users of the modes, including asset manufacturers,  as appropriate;  relevant  law enforcement, first  responders, and security experts; and other   groups   as   the Administrator considers appropriate.

Big Changes Coming Soon to Coast Guard's Homeport Website

On November 27, 2015, the Coast Guard made an announcement concerning its Homeport website via Maritime Commons (http://mariners.coastguard.dodlive.mil/2015/11/27/11272015-homeport-2-0-news-and-information/ ). The information is also posted on the Homeport website, http://homeport.uscg.mil .

We have been hearing for quite a while about upcoming changes to Homeport – these changes are happening and happening soon. Below is the text of the announcement from the Homeport/CG-FAC website:

“The United States Coast Guard (USCG) Homeport Internet Portal (HIP) was established in 2005 to facilitate compliance with the requirements set forth in the Maritime Transportation Security Act (MTSA) of 2002, by providing secure information dissemination, advanced collaboration, electronic submission and approval for vessel and facility security plans, and complex electronic and telecommunication notification capabilities.

Since its inception, HIP has been expanded to provide additional support such as Transportation Worker Identification Card New Hire; Electronic Vessel Response Plan; Marine Event Permit Process; Port Status Indicator; Merchant Mariner Licensing and Documentation; Marine Training and Assessment Data (training documentation); Merchant Mariner Certificate; Sea Service Calculator; Merchant Mariner Verification of Certificates; and Merchant Mariner Credential Survey

The Coast Guard will launch Homeport 2.0 Jan. 29, 2016 in order to provide a better user experience and improve the security of user information. Upgrades will include fewer site navigation menus and more efficient and secure search functions.

Although most features will be available as soon as the new site launches, user access to a few conveniences may be interrupted. Review the Homeport 2.0 Deployment Schedule for details. Functions that are essential to maintaining port security or that are critical to continuing the flow of commerce will remain available during the transition period.

Alternative solutions are available for most features taken offline during the transition. Anyone who needs access to a service normally obtained through HIP should contact the appropriate subject matter expert listed in the Homeport 2.0 Deployment Schedule.

From the Deployment Schedule:

Uninterrupted services:

 · TWIC new hire procedures

· Port status query

 · Merchant Mariner Application Status

· VRP Express

· Vessels & facilities search

· Merchant Mariner Credential Verification

· Merchant Mariner Sea Service Calculator

· Most core CG accessible-only functions

Services unavailable Jan. 29 - March 31, 2016

· Mariner Training & Assessment Database

 · Security Plans Temporary

· Merchant Mariner Credential Survey

 Services unavailable Jan. 29 - April 30, 2016

 · Merchant Mariner Certificate

· Marine Event Application Temporary

The FAQ document (http://www.uscg.mil/hq/cg5/cg544/docs/Homeport_2%200_FAQs_AllUsers1%201.pdf) lists work-arounds for most unavailable services in a Deployment Schedule (http://www.uscg.mil/hq/cg5/cg544/docs/Homeport%20Application%20Deployment%20Schedule.pdf ). There is a separate FAQ document (http://www.uscg.mil/hq/cg5/cg544/docs/Homeport_2%200_FAQs_CommunityOwners1%201.pdf ) for community owners, who need to pay careful attention to deadlines. The deadline for migrating community content is January 29, 2016.  This is a hard deadline. “Legacy Homeport will be taken offline as of Jan. 29, 2016, and community owners should make all efforts to meet this deadline. Any content that is not transferred will be auto-archived and will not be easily accessible.”

TSA Posts Notice Regarding Resolution of Delays in Processing TWIC Cards, with Caveat

On June 12, 2015, the Transportation Security Administration posted the following notice at http://www.tsa.gov/stakeholders/transportation-worker-identification-credential-twic:

1) UPDATED! TWIC Processing Delays: The previously announced delay in processing some TWIC applications has been resolved.  Most applicants will receive a TWIC within a month of enrolling, and often in about two weeks.  However, despite progress in reducing processing delays for the small number of applicants whose criminal or immigration records indicate that they may not be eligible for a TWIC, those applicants may still experience a two-and-a-half month wait before receiving a TWIC or notification from TSA.

To ensure all eligible applicants receive a new or renewal TWIC before it is needed for work we continue to strongly encourage all applicants to apply for their TWIC at least 10 to 12 weeks prior to when the card will be required to avoid inconvenience or interruption in access to maritime facilities.

_______________________________________________________

Takeaways from this notice: applicants with anything in their background that might result in a application refusal on criminal history or immigration grounds may still experience a lengthy delay.  It remains to be seen if persons with clean backgrounds continue to experience lengthy delays.  Employers would be well-served to take TSA’s advice and assume that the application process will take 10 – 12 weeks.

The only way to find out if anything new has been posted on the TSA TWIC website is to check it daily.  At the bottom of the site is a revision date.  If this date has changed, new material has been added.  Do not rely on the NEW!  verbiage on notices because TSA does not remove this on a timely basis.

MTSA Training Course Update from Maritime Commons

Maritime transportation security act training course update -

On May 28, 2015, the following was posted on the Coast Guard’s Maritime Commons blog, at http://mariners.coastguard.dodlive.mil/2015/05/28/5282015-maritime-transportation-security-act-training-course-update/:

“The Coast Guard is pleased to see the large number of maritime industry employees who choose to take part in the voluntary Maritime Transportation Security Act Training Course Program, choosing to attend courses reviewed and approved via a Coast Guard accepted Quality Standard System, or QSS.

The Coast Guard was informed that one of the accepted QSSs, Det Norske Veritas – Germanischer Lloyd, has withdrawn from certifying FSO, CSO, MSLEP and FPSSD courses. The American Bureau of Shipping is a QSS organization accepted by the Coast Guard and continues to participate in the certification process of these courses.

Additional information can be found on the Coast Guard’s facilities webpage.

Effective security training for maritime industry professionals is critical to the success of the nation’s security efforts. As the Coast Guard continues to develop regulations to establish comprehensive FSO training requirements, maritime industry employees with security duties are strongly encouraged to take approved courses.”

Here are some take-aways from this post:

1.  At this point, ABS is the sole course certifier for FSO, CSO, MSLEP and FPSSD.

2.  The Coast Guard continues to “strongly encourage” maritime industry employees with security duties to take approved courses. Because the new regulation mandating training is not yet in effect, strongly encourage is all they can do, but a word to the wise ought to be sufficient.

Persons who are hoping  that the Coast Guard may grandfather any FSO currently serving or who has received any sort of FSO training (4 hours? 2 hours?), and only require new FSOs to become certified under the new regulations, should probably take a look at the communications that have come out from CG-FAC supporting approved courses.

TSA Notice Concerning Reporting Non-Receipt of Mailed TWICs

Today the Transportation Security Administration posted a notice concerning persons who have enrolled for a TWIC card, received notification that the card has been mailed, and then fail to receive the card through the mail. The notice is at http://www.tsa.gov/stakeholders/transportation-worker-identification-credential-twic. This is the "down side" of the TSA one-visit program. It remains to be seen how many of the cards will fail to reach the end receiver.  Persons who have received the card through the mail tell me that the envelope is clearly marked "Transportation Security Administration".

The notice is printed in its entirety below.

NEW! Reporting Non-Receipt of Mailed TWICs: TWIC applicants who request to receive their TWIC card by mail will receive a phone or email notification that the card has been mailed.  After notification that the card has been mailed, applicants have 60 days to report non-receipt of the card by contacting the Universal Enrollment Services (UES) Call Center at: (855) 347-8371. Failure to report non-receipt of the card within 60 days will result in a $60 fee to replace the lost card.

More Detailed Analysis of NPRM on Seafarer Access

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