[Federal Register: October 22, 2003 (Volume 68, Number 204)]
[Rules and Regulations]
[Page 60472-60483]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr22oc03-12]
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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: Final rule.
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SUMMARY: This final rule adopts, with changes, the temporary interim
rule published on July 1, 2003, that establishes U.S. Coast Guard
Captains of the Ports as Federal Maritime Security Coordinators, and
establishes requirements for Area Maritime Security Plans and Area
Maritime Security Committees. This rule is one in a series of final
rules on maritime security published in today's Federal Register. To
best understand this final rule, first read the final rule titled
``Implementation of National Maritime Security Initiatives'' (USCG-
2003-14792), published elsewhere in today's Federal Register.
DATES: This final rule is effective November 21, 2003. On July 1, 2003,
the Director of the Federal Register approved the incorporation by
reference of certain publications listed in this final rule.
ADDRESSES: Comments and material received from the public, as well as
documents mentioned in this preamble as being available in the docket,
are part of docket USCG-2003-14733 and are available for inspection or
copying at the Docket Management Facility, U.S. Department of
Transportation, room PL-401, 400 Seventh Street SW., Washington, DC,
between 9 a.m. and 5 p.m., Monday through Friday, except Federal
holidays. You may also find this
[[Page 60473]]
docket on the Internet at http://dms.dot.gov.
FOR FURTHER INFORMATION CONTACT: If you have questions on this final
rule, call Lieutenant Commander Richard Teubner (G-MPS-2), U.S. Coast
Guard by telephone 202-267-4129 or by electronic mail rteubner@comdt.uscg.mil. If you have questions on viewing the docket,
call Andrea M. Jenkins, Program Manager, Docket Operations, Department
of Transportation, at telephone 202-366-0271.
SUPPLEMENTARY INFORMATION:
Regulatory Information
On July 1, 2003, we published a temporary interim rule with request
for comments and notice of public meeting titled ``Area Maritime
Security'' in the Federal Register (68 FR 39284). This temporary
interim rule was one of a series of temporary interim rules on maritime
security published in the July 1, 2003, issue of the Federal Register.
On July 16, 2003, we published a document correcting typographical
errors and omissions in that rule (68 FR 41914).
We received a total of 438 letters in response to the six temporary
interim rules by July 31, 2003. The majority of these letters contained
multiple comments, some of which applied to the docket to which the
letter was submitted, and some of which applied to a different docket.
For example, we received several letters in the docket for the
temporary interim rule titled ``Implementation of National Maritime
Security Initiatives'' that contained comments in that temporary
interim rule, plus comments on the ``Vessel Security'' temporary
interim rule. We have addressed individual comments in the preamble to
the appropriate final rule. Additionally, we had several commenters
submit the same letter to all six dockets. We counted these duplicate
submissions as only one letter, and we addressed each comment within
that letter in the preamble for the appropriate final rule. Because of
statutorily imposed time constraints for publishing these regulations,
we were unable to consider comments received after the period for
receipt of comments closed on July 31, 2003.
A public meeting was held in Washington, DC, on July 23, 2003, and
approximately 500 people attended. Comments from the public meeting are
also included in the ``Discussion of Comments and Changes'' section of
this preamble.
In order to focus on the changes made to the regulatory text since
the temporary interim rule was published, we have adopted the temporary
interim rule and set out, in this final rule, only the changes made to
the temporary interim rule. To view a copy of the complete regulatory
text with the changes shown in this final rule, see http://www.uscg.mil/hq/g-m/mp/index.htm
.
Background and Purpose
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 final rule titled ``Implementation of National
Maritime Security Initiatives'' (USCG-2003-14792), published elsewhere
in this issue of the Federal Register.
Discussion of Comments and Changes
Comments from each of the temporary interim rules and from the
public meeting held on July 23, 2003, have been grouped by topic and
addressed within the preambles to the applicable final rules. If a
comment applied to more than one of the six rules, we discussed it in
the preamble to each of the final rules that it concerned. For example,
discussions of comments that requested clarification or changes to the
Declaration of Security procedures are duplicated in the preambles to
parts 104, 105, and 106. Several comments were submitted to a docket
that included topics not addressed in that particular rule, but were
addressed in one or more of the other rules. This was especially true
for several comments submitted to the docket of part 101 (USCG-2003-
14792). In such cases, we discussed the comments only in the preamble
to each of the final rules that concerned the topic addressed.
Subpart A--General
This subpart concerns applicability and applies the requirements
for Area Maritime Security to all vessels and facilities located in,
on, under, or adjacent to waters subject to the jurisdiction of the
U.S.
One commenter asked who would be ensuring the integrity of security
training and exercise programs.
Since the events of September 11, 2001, the Coast Guard has
developed a directorate responsible for port, vessel, and facility
security. This directorate oversees implementation and enforcement of
the regulations found in parts 101 through 106. Additionally, owners
and operators of vessels and facilities will be responsible for
recordkeeping regarding training, drills, and exercises, and the Coast
Guard will review these records during periodic inspections.
Two commenters were concerned about the breadth of the regulations.
One commenter asked that the regulations be broadened to allow for
exemptions. One commenter stated that the applicability as described in
Sec. 101.110 is ``much too general,'' stating that it can be
interpreted as including a canoe tied up next to a floating dock in
front of a private home. The commenter concluded that such a broad
definition would generate ``a large amount of confusion and
discontent'' among recreational boaters and waterfront homeowners.
Our applicability for the security regulations in 33 CFR chapter I,
subchapter H, is for all vessels and facilities; however, parts 104,
105, and 106 directly regulate those vessels and facilities we have
determined may be involved in transportation security incidents, which
does not include canoes and private residences. For example, Sec.
104.105(a) applies to commercial vessels; therefore, a recreational
boater is not regulated under part 104. If a waterfront homeowner does
not meet any of the specifications in Sec. 105.105(a), the waterfront
homeowner is not regulated under part 105. It should be noted that all
waterfront areas and boaters are covered by parts 101 through 103 and,
although there are no specific security measures for them in these
parts, the AMS Plan may set forth measures that will be implemented at
the various Maritime Security (MARSEC) Levels that may apply to them.
Security zones and other measures to control vessel movement are some
examples of AMS Plan actions that may affect a homeowner or a
recreational boater. Additionally, the COTP may impose measures, when
necessary, to prevent injury or damage or to address a specific
security concern.
Six commenters stated that the term ``fleeting facility'' in Sec.
105.105(a)(4) is more general than the definition of a ``barge fleeting
facility'' in Sec. 101.105. The commenters pointed out that temporary
staging areas of barges, or those areas for the breaking and making of
tows provided by the U.S. Army Corps of Engineers, are not included in
the definition of ``barge fleeting facility'' because they are not
``commercial fleeting areas.'' The commenters suggested that these
areas be included in AMS Plans.
We agree with the commenters and are amending Sec. 105.105(a)(4)
to make it consistent with the definition stated in Sec. 101.105 for
``barge fleeting facility.'' With regards to barge fleeting areas that
[[Page 60474]]
are provided by the U.S. Army Corps of Engineers, in accordance with
Sec. 105.105(b), those facilities that are not subject to part 105
will be covered by parts 101 through 103 of this subchapter and will be
included in AMS Plans.
We received comments from the Environmental Protection Agency
regarding the effects of our regulations on EPA-regulated oil
facilities. These comments focused primarily on the potential
overlapping provisions of 33 CFR part 105 and 40 CFR part 112. Overlap
exists in four major areas: Notification of security incidents, fencing
and monitoring, evacuation procedures, and security assessments. In
cases of overlapping provisions for oil facilities regulated both in
parts 105 and 112, the requirements in our final rules and EPA
rulemakings do not supplant one another. Additionally, an EPA-regulated
facility need not amend the facility's Spill Prevention Control and
Countermeasure Plan or Facility Response Plan, as we first stated in
the temporary interim rule (68 FR 39251) (part 101). We will be working
further with EPA in the implementation of these final rules to minimize
the burden to the facilities while ensuring that these facilities are
secure. It is our belief that response plans for EPA-regulated oil
facilities will serve as an excellent foundation for security plans
that may be required under our regulations.
EPA asked for clarification for facilities adjacent to the
navigable waters that handle or store cargo that is hazardous or a
pollutant but may not be marine transportation related facilities.
These facilities are covered by parts 101 through 103 of subchapter H
and, although there are no specific security measures for them in these
parts, the AMS Plan may set forth measures that will be implemented at
the various MARSEC Levels that may apply to them. The AMS Assessment
may reveal that these EPA-regulated facilities may be involved in a
transportation security incident and the COTP may direct these
facilities, through orders issued under existing COTP authority, to
implement security measures based on the facilities' operations and the
MARSEC Level. We encourage owners and operators of these EPA-regulated
facilities, as well as representatives from EPA, to participate in AMS
Committee activities.
EPA asked for further clarification on drills and exercises
requirements. As we stated in the temporary interim rule, non-security
drills and exercises may be combined with security drills to minimize
burden. Additionally, EPA-regulated facilities that conduct drills not
related to security are encouraged to communicate with the local COTP
and coordinate their drills at the area level. It is our intention to
give facilities and vessels in the port area as much notice as
practicable prior to an AMS Plan exercise to reduce the burden to those
entities. Again, we encourage owners and operators of these EPA-
regulated facilities, and EPA, to participate in AMS Committee
activities to maximize coordination and minimize burden.
EPA asked us to clarify the role of Area Contingency Plans with the
requirements of our final rules. Our rules are intended to work in
concert with Area Contingency Plans and do not preempt their
requirements. We envision that many members of the Area Committees who
are responsible for implementing Area Contingency Plans will also
become members of the AMS Committee. This participation will help
ensure that implementing an AMS Plan will not conflict with an Area
Contingency Plan.
Finally, EPA asked for clarification on requirements for marine
transportation related facilities that handle petroleum oil, non-
petroleum oil, and edible oil. These facilities are directly regulated
under Sec. 105.105(a)(1) and must meet the requirements of part 105.
Subpart B--Federal Maritime Security Coordinator (FMSC)
This subpart designates the Coast Guard COTP as the Federal
Maritime Security Coordinator and provides a description of the COTP's
authority as Federal Maritime Security Coordinator to establish,
convene, and direct the AMS Committee.
Three commenters recommended developing an International Maritime
Organization (IMO) list of port facilities to help foreign shipowners
identify U.S. facilities not in compliance with subchapter H. In a
related comment, there was a request for the Coast Guard to maintain
and publish a list of non-compliant facilities and ports because a COTP
may impose one or more control and compliance measures on a domestic or
foreign vessel that has called on a facility or port that is not in
compliance.
We do not intend to publish a list of each individual facility that
complies or does not comply with part 105. As discussed in the
temporary interim rule (68 FR 39262) (part 101), our regulations align
with the requirements of the International Ship and Port Facility
Security (ISPS) Code, part A, section 16.5, by using the AMS Plan to
satisfy our international obligations to communicate to IMO, as
required by the International Convention for Safety of Life at Sea,
1974 (SOLAS) Chapter XI-2, regulation 13.3, the locations within the
U.S. that are covered by an approved port facility security plan. Any
U.S. facility that receives vessels subject to SOLAS is required to
comply with part 105.
Subpart C--Area Maritime Security (AMS) Committee
This subpart describes the composition and responsibilities of the
AMS Committee.
One commenter supported the creation of AMS Committees, stating
that through the partnership between industry and the Coast Guard, the
committees will develop a comprehensive plan for the security of the
port.
Two commenters supported the creation of AMS Committees if they
were composed of appropriately experienced representatives from a
variety of sources in the port. One commenter stated that the AMS
Committee allows for ``port specific'' appropriate risk mitigation as
opposed to a blanket risk mitigation policy placed on the entire U.S.
waterway system and will strengthen the AMS Plan with the ``buy in'' of
the maritime community.
We agree with the commenters and believe that the AMS Committee is
a vital link to ensuring the port community is involved in security and
its implementation. The inclusive nature of the AMS Committee and the
active involvement of a variety of port stakeholders, bringing their
experience within the maritime community to the table, will enhance the
success of the AMS Committee in drafting the AMS Plan.
One commenter stated that the AMS Committee should have the
responsibility to identify Federal, State, Indian Tribal, and local
government agencies and law enforcement entities with jurisdiction over
port-related matters.
We believe the responsibilities of Federal, State, Indian Tribal,
and local government agencies and law enforcement entities with
jurisdiction over port security related matters should be addressed in
the AMS Plan and, therefore, have amended Sec. 103.505.
Six commenters requested that the Coast Guard establish, without
delay, an AMS Committee for the Outer Continental Shelf (OCS) portion
of the Gulf of Mexico as an essential step in moving the various
Federal law enforcement agencies and industry toward a mutual
understanding of the response to a transportation security incident on
the Outer Continental Shelf.
We intend to cover OCS facilities in the Gulf of Mexico by a
single, District-
[[Page 60475]]
wide plan. The establishment of an AMS Committee for the OCS facilities
in the Gulf of Mexico was discussed at recent Gulf Safety Committee and
National Offshore Safety Advisory Committee (NOSAC) meetings. We intend
to form an AMS Committee for this area in the near future.
Additionally, owners and operators of OCS facilities are encouraged to
participate on the AMS Committee of the COTP zone that is most relevant
to their operations.
We received nine comments dealing with the protection of
information shared with the AMS Committee. One commenter recommended
that threat and risk assessments be kept at the government level so
that this type of information would not be available to the public.
Five commenters suggested that security plans or proprietary
information regarding facilities or vessels be classified as
confidential and not be shared with the AMS Committee. Four commenters
requested that uniform guidance be provided to the AMS Committee on the
handling of sensitive security information.
Section 103.300 provides that each AMS Committee will operate under
a written charter that, among other items, details the rules for
handling and protecting classified, sensitive security, commercially
sensitive, and proprietary information. Threat and risk assessments
developed by the AMS Committee will be embodied in written reports that
will be designated sensitive security information and hence will not be
available to the public.
Three commenters stated that the regulations do not indicate that
the AMS Committee will function in a manner consistent with the
procedures of Navigation and Vessel Inspection Circular (NVIC) 09-02,
Guidelines for Port Security Committees, and Port Security Plans
Required for U.S. Ports. Two commenters stated that the regulations did
not specify the identity of the ``chartering entity'' for the AMS
Committee.
Section 101.105 states that the port security committee established
under NVIC 09-02 may be the AMS Committee. The requirements for AMS
Committees described in part 103 are consistent with NVIC 09-02.
Therefore, AMS Committees will function in a manner consistent with the
procedures of NVIC 09-02, unless the Committee agrees in its charter to
a different arrangement. The AMS Committee is chartered under the
direction of the COTP.
We received nine comments on AMS Committee participation. Three
commenters urged the Coast Guard to include the recreational boating
community in all decisions that could limit recreational boaters'
access to the water, stating that the future health of the community
depends on reasonable access to the nation's waterways. Two commenters
requested that private industry facility operators be allowed to fully
participate in the AMS Committee. One commenter requested that utility
representatives be allowed to fully participate in the AMS Committee.
One commenter requested that government agencies that have roles in
maritime and cargo security be involved in the AMS Committee. One
commenter requested that representatives from the charterboat industry
be included as AMS Committee members.
We encourage members of all affected communities, including small
businesses, utilities, government officials, charterboats, and
recreational boating, to become involved in maritime security through
their local AMS Committees. Where appropriate, AMS Committees should
include representatives from associations that represent all of these
communities. Additionally, to ensure consistency across modes of
transportation and with other Federal security programs, the Coast
Guard intends to invite officials nominated by other Federal agencies,
including the Transportation Security Administration (TSA), the Bureau
of Customs and Border Protection and the Maritime Administration to
participate in, and to appoint them as members of, the AMS Committees.
Eight commenters suggested that the criteria for AMS Committee
membership or participation in a leadership position be revised.
Currently, Sec. 103.305(a) requires ``at least 5 years of experience
related to maritime or port security operations.'' Four commenters
suggested that membership not be limited only to security-related
experience. One commenter recommended that the seven AMS Committee
members ``must be selected from'' the seven areas listed in Sec.
103.305.
We aligned Sec. 103.305 with the requirements for the AMS
Committee found in the Maritime Transportation Security Act of 2002
(MTSA), which specifically requires a minimum of 7 members with at
least 5 years of practical experience in maritime security operations
and provides that the members ``may be selected'' from the seven areas
listed. We have, however, amended Sec. 103.305 in order to clarify
that, while 7 members of the AMS Committee must have at least 5 years
of experience related to maritime or port security operations, the AMS
Committee may be composed of more than 7 members. We are also adding
labor to the list of areas from which AMS Committee members should be
selected. These changes increase participation in the AMS Committee,
which we believe will be beneficial to the operation of the AMS
Committee.
One commenter recommended that AMS Committees consider information
access ``up the chain of command'' for ``strong and viable seaport
security.''
The COTP is the Federal Maritime Security Coordinator, and will be
involved with the AMS Committee. The COTP is responsible for
disseminating information to the port stakeholders and ``up the chain
of command.'' Additionally, owners or operators of vessels and
facilities subject to parts 104, 105, and 106 are required to report
all suspicious activities and breaches of security to the National
Response Center (NRC); other owners and operators are encouraged to do
so. Finally, non-compliance with security plans and the reporting
requirements in them must be reported to the Coast Guard.
One commenter asked how, in accordance with Sec. 104.240(d), the
COTP will communicate permission to a vessel to enter the port if the
vessel cannot implement its Vessel Security Plan.
The COTP can use a number of means to communicate to a vessel
permission or denial to enter the port, such as issuing a COTP order
denying entry or establishing conditions upon which the vessel may
enter the port. Presently, communications to a vessel occur before port
entry regarding required construction, safety, and equipment
regulations. These communications occur through agents by satellite
phone, fax, email, cellular phone, or radio communications.
One commenter stated that, because vessel and facility owners or
operators may be required under Federal law to obtain the services of
security guards and armed guards, there should be minimum standards
guiding the qualifications, certification, and performance of those
guards. The commenter also suggested that the AMS Committee evaluate
local armed security service providers and develop a list of qualified
providers.
As we stated in the temporary interim rule (68 FR 39255) (part
101), we intend to work with State homeland security representatives to
encourage the review of all standards related to armed personnel. While
we have not required each AMS Committee to develop lists of qualified
security personnel providers, each AMS Committee may undertake this
task.
[[Page 60476]]
Subpart D--Area Maritime Security (AMS) Assessment
This subpart directs the AMS Committee to ensure development of a
risk-based AMS Assessment.
We received four comments regarding the use of third party
companies to conduct security assessments. Two commenters asked if we
will provide a list of acceptable assessment companies because of the
concern that the vulnerability assessment could ``fall into the wrong
hands.'' One commenter requested that the regulations define
``appropriate skills'' that a third party must have in order to aid in
the development of security assessments. One commenter stated that the
person or company conducting the assessment might not be reliable.
We will not be providing a list of acceptable assessment companies,
nor will we define ``appropriate skills.'' It is the responsibility of
the vessel or facility owner or operator to vet companies that assist
them in their security assessments. In the temporary interim rule (68
FR 39254), we stated, ``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 require security assessments to be
protected from unauthorized disclosures and will enforce this
requirement, including using the penalties provision under Sec.
101.415.
One commenter stated that any third party participating in
developing the AMS Assessment should sign non-disclosure or secrecy
agreements regarding any classified, sensitive security, commercially
sensitive, or proprietary information developed, collected, or
otherwise accessed during the preparation of the AMS Assessment.
If the AMS Committee or the Coast Guard chooses to use third
parties in developing the AMS Assessment or the AMS Plan, those third
parties must possess the same level of clearance as the material they
are helping to develop, collect, or otherwise access. As required by
Sec. 103.300(b)(6), the charter under which the AMS Committee operates
will establish rules for handling and protecting classified and
sensitive security information. We intend to address third parties
signing non-disclosure or secrecy agreements to protect classified or
sensitive security information in future guidance.
One commenter supported the development of a risk-based AMS
Assessment but requested the addition of assessment requirements to
specifically include: (1) Consideration of requiring Facility Security
Plans and Vessel Security Plans for vessels that carry fewer than 150
passengers or facilities that serve these smaller operators, and (2)
consideration of the public transit sector. The commenter stated that
adding requirements to assess smaller operations would address a gap
created because the current regulations exempt vessels and facilities
that handle 150 passengers or fewer. Furthermore, the commenter stated
that a critical look at the public transit sector (e.g., ferry vessels)
was needed because implementing certain security measures could
severely hurt this industry and could cause a security inequity with
other public transportation modes. The commenter further suggested that
the public transit sector should be allowed to come forward with
security recommendations to satisfy the AMS Plan.
We agree that both the consideration of small vessel and facility
operations as well as public transit must be included in the AMS
Assessment. Section 103.405 was developed to cover these topics but did
not go into detail. We believe the details of the AMS Assessment are
best embodied in guidance. We intend to provide additional guidance in
a revision to NVIC 9-02 (Guidelines for Port Security Committees, and
Port Security Plans Required for U.S. Ports). We intend to update this
guidance to incorporate several suggestions and address the
consideration of security measures for vessels and facilities that are
not directly regulated under parts 104 or 105 but, due to the specific
nature of their port location or operation, may require additional
security measures or requirements. Public transit issues and parity
with other transportation modes is also a concern. The AMS Assessment
is required to address transportation infrastructure, which includes
all ferry operations, as well as train or other modes affecting the
area maritime community.
One commenter stated that the AMS Assessment should include
consideration of manufacturers and users of hazardous material.
Section 103.405 lists the elements that must be taken into
consideration in developing the AMS Assessment. These elements are
broadly defined and could include manufacturers and users of hazardous
materials if they may be involved in a transportation security
incident.
Four commenters requested that the Company and the Facility
Security Officers be given access to the ``vulnerability assessment''
done by the COTP to facilitate the development of the Facility Security
Plan and ensure that the Facility Security Plan does not conflict with
the AMS Plan.
The AMS Assessments directed by the Coast Guard are broader in
scope than the required Facility Security Assessments. The AMS
Assessment is used in the development of the AMS Plan, and it is a
collaborative effort between Federal, State, Indian Tribal, and local
agencies as well as vessel and facility owners and other interested
stakeholders. The AMS Assessments are sensitive security information.
Access to these assessments, therefore, is limited under 49 CFR part
1520 to those persons with a legitimate need-to-know (e.g., Facility
Security Officers who need to align Facility Security Plans with the
AMS Plan may be deemed to have need to know sensitive security
information). In addition, potential conflicts between security plans
and the AMS Plan will be identified during the Facility Security Plan
approval process.
Subpart E--Area Maritime Security (AMS) Plan
This subpart concerns the elements of the AMS Plan, requirements on
exercising the AMS Plan, and recordkeeping requirements.
One commenter supported the creation of an AMS Plan and believes it
provides details of operational and physical measures that must be in
place at all MARSEC Levels rather than blanket security rules that do
not appropriately apply to the public transit sector (e.g., ferry
vessels).
We believe the AMS Plan is an excellent tool to coordinate and
communicate security measures throughout the port community. The AMS
Plan takes into account unique port operations and their criticality to
the community and tailors security measures to effectively continue
essential port operations as MARSEC Levels increase.
One commenter asked that we ensure the interoperability of the
various plans required in parts 101 through 106, stating that we must
have a coordinated approach to the implementation of national maritime
security requirements.
We agree with the commenter and intend to take the interoperability
of security plans into account as we review and approve security plans
for vessels
[[Page 60477]]
and facilities and as we develop the National and AMS Plans.
One commenter stated that there should be a common template for AMS
Plans for use at all Districts.
The regulations provide uniformity by requiring all AMS Plans to be
submitted for review to the Coast Guard District Commander and for
approval to the Coast Guard Area Commander.
Six commenters stated that part 105 should not apply to marinas
that receive a small number of passenger vessels certificated to carry
more than 150 passengers or to ``mixed-use or special-use facilities
which might accept or provide dock space to a single vessel'' because
the impact on local business in the facility could be substantial. Two
commenters stated that private and public riverbanks should not be
required to comply with part 105 because ``there is no one to complete
a Declaration of Security with, and no way to secure the area, before
the vessel arrives.'' Two commenters stated that facilities that are
``100 percent public access'' should not be required to comply with
part 105 because these types of facilities are ``vitally important to
the local economy, as well as to the host municipalities.'' This
commenter also stated that vessels certificated to carry more than 150
passengers frequently embark guests at private, residential docks and
small private marinas for special events such as weddings and
anniversaries and may visit such a dock only once.
We agree that the applicability of part 105 to facilities that have
minimal infrastructure but are capable of receiving passenger vessels
is unclear. Therefore, in the final rule for part 101, we added a
definition for a ``public access facility'' to mean a facility approved
by the cognizant COTP with public access that is primarily used for
purposes such as recreation or entertainment and not for receiving
vessels subject to part 104. By definition, a public access facility
has minimal infrastructure for servicing vessels subject to part 104
but may receive ferries and passenger vessels other than cruise ships,
ferries certificated to carry vehicles, or passenger vessels subject to
SOLAS. Minimal infrastructure would include, for example, bollards,
docks, and ticket booths but would not include, for example, permanent
structures that contain passenger waiting areas or concessions. We have
not allowed public access facilities to be designated if they receive
vessels such as cargo vessels because such cargo-handling operations
require additional security measures that public access facilities
would not have. We amended part 105 to exclude these public access
facilities, subject to COTP approval, from the requirements of part
105. We believe this construct does not reduce security because the
facility owner or operator or entity with operational control over
these types of public access facilities still has obligations for
security that will be detailed in the AMS Plan, based on the AMS
Assessment. Additionally, the Vessel Security Plan must address
security measures for using the public access facility. This exemption
does not affect existing COTP authority to require the implementation
of additional security measures to deal with specific security
concerns. We have also amended Sec. 103.505, to add public access
facilities to the list of elements that must be addressed within the
AMS Plan.
Two commenters asked if the COTP would allow private port
facilities access to the completed AMS Assessment or Plan, stating that
a port plan could potentially contradict a private Facility Security
Plan. One commenter stated that the AMS Plan should be ``absolutely
unequivocal about the lines of authority for preventative and response
actions as well as law enforcement.''
The development of the AMS Plan is a collaborative effort between
Federal, State, Indian Tribal, and local agencies as well as individual
facility owners and any other interested stakeholders. AMS Plans
contain sensitive security information, and the COTP must ensure it is
protected in accordance with 49 CFR part 1520. The Coast Guard will
resolve potential conflicts between an individual Facility Security
Plan and the AMS Plan during the Facility Security Plan approval
process, which will ensure proper planning for preventative and
response actions. To clarify that the entire AMS Plan is not
necessarily sensitive security information, we are amending Sec.
103.500(b) to allow only those portions of the AMS Plan that contain
sensitive security information to be marked as such. This will allow
certain non-sensitive security information portions of the AMS Plan to
be widely distributed to maximize its communication and coordination
with port stakeholders.
Ten commenters addressed the disclosure of security plan
information. One commenter advocated making security plans public. One
commenter was concerned that plans will be disclosed under the Freedom
of Information Act (FOIA). One commenter requested that mariners and
other employees, whose normal working conditions are altered by a
Vessel or Facility Security Plan, be granted access to sensitive
security information contained in that plan on a need-to-know basis.
One commenter stated that Company Security Officers and Facility
Security Officers should have reasonable access to AMS Plan information
on a need-to-know basis. One commenter stated that the Federal
government must preempt State law in instances of sensitive security
information because some State laws require full disclosure of public
documents. Three commenters supported our conclusion that the MTSA and
our regulations preempt any conflicting State requirements. Another
commenter was particularly pleased to observe the strong position taken
by the Coast Guard in support of Federal preemption of conflicting
State and local security regimes. One commenter supported our decision
to designate security assessments and plans as sensitive security
information.
Portions of security plans are sensitive security information and
must be protected in accordance with 49 CFR part 1520. Only those
persons specified in 49 CFR part 1520 will be given access to security
plans. In accordance with 49 CFR part 1520 and pursuant to 5 U.S.C.
552(b)(3), sensitive security information is generally exempt from
disclosure under FOIA, and TSA has concluded that State disclosure laws
that conflict with 49 CFR part 1520 are preempted by that regulation.
46 U.S.C. 70103(d) also provides that the information developed under
this regulation is not required to be disclosed to the public. However,
Sec. Sec. 104.220, 104.225, 105.210, 105.215, 106.215, and 106.220 of
these rules state that vessel and facility personnel must have
knowledge of relevant provisions of the security plan. Therefore,
vessel and facility owners or operators will determine which provisions
of the security plans are accessible to crewmembers and other
personnel. Additionally, COTPs will determine what portions of the AMS
Plan are accessible to Company or Facility Security Officers.
Information designated as sensitive security information is
generally exempt under FOIA, and TSA has concluded that State
disclosure laws that conflict with 49 CFR part 1520 are preempted by
that regulation. 46 U.S.C. 70103(d) also provides that the information
developed under this regulation is not required to be disclosed to the
public.
Two commenters stated that our regulations suggest that information
designated as sensitive security information is exempt from FOIA. One
commenter suggested that all
[[Page 60478]]
documentation submitted under this rule be done pursuant to the
Homeland Security Act of 2002, to afford a more legally definite
protection against disclosure.
``Sensitive security information'' is a designation mandated by
regulations promulgated by TSA and may be found in 49 CFR part 1520.
These regulations state that information designated as sensitive
security information may not be shared with the general public. FOIA
exempts from its mandatory release provisions those items that other
laws forbid from public release. Thus, security assessments, security
assessment reports, and security plans, which should be designated as
sensitive security information, are all exempt from release under FOIA.
Four commenters urged us to conduct background checks on potential
members of AMS Committees because the information contained in the AMS
Plans might be ``secret.'' Two commenters urged us to designate
security assessments, Vessel Security Plans, Facility Security Plans,
and information contained in the AMS Plans as ``secret,'' and require
secret clearance for AMS Committee members.
We do not believe that a security designation above sensitive
security information is needed for this material. However, Sec.
103.300(b)(6) requires AMS Committee charters to include rules for
handling and processing classified material. Access to the AMS Plan
will be limited to those on the AMS Committee who have agreed to
protect the material in a manner appropriate to its security
sensitivity and have a need to know the material. Guidance on sensitive
security information 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 sensitive security information, the
Coast Guard will screen AMS Committee members for appropriate
clearances and take precautions appropriate to the material's
sensitivity. Individuals and Federal, State, Indian Tribal, and local
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 them. As stated in the
``Vessel Security'' temporary interim rule (68 FR 39297), certain
portions of each Vessel Security Plan and Vessel Security Assessment
must be made accessible to authorities; however, those portions not
required to be disclosed are protected with the sensitive security
information designation and need-to-know criteria. Owners and operators
of vessels and facilities may also request a determination of a higher
designation than sensitive security information 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 safeguarded to the
appropriate designation.
We received 28 comments regarding communication of changes in the
MARSEC Levels. Most commenters were concerned about the Coast Guard's
capability to communicate timely changes in MARSEC Levels to facilities
and vessels. Some stressed the importance of MARSEC Level information
reaching each port area in the COTP's zone and the entire maritime
industry. Some stated that local Broadcast Notice to Mariners and
MARSEC Directives are flawed methods of communication and stated that
the only acceptable ways to communicate changes in MARSEC Levels, from
a timing standpoint, are via email, phone, or fax as established by
each COTP.
MARSEC Level changes are generally issued at the Commandant level
and each Marine Safety Office (MSO) will be able to disseminate them to
vessel or facility owners and operators, or their designees, by various
ways. Communication of MARSEC Levels will be done in the most
expeditious means available, given the characteristics of the port and
its operations. These means will be outlined in the AMS Plan and
exercised to ensure vessel and facility owners and operators, or their
designees, are able to quickly communicate with us and vice-versa.
Because MARSEC Directives will not be as expeditiously communicated as
other COTP Orders and are not meant to communicate changes in MARSEC
Levels, we have amended Sec. 101.300 to remove the reference to MARSEC
Directives.
We received four comments on the subject of AMS Plan exercises. One
commenter agreed with our inclusion of tabletop exercises as a cost-
effective means of exercising the security plan. Two commenters
supported a maritime security field training exercise in each area
covered by an AMS Plan but requested that the frequency be every 3
years rather than annually. These commenters stated that the annual
requirement for an AMS Plan exercise placed an undue burden on the
maritime sector because it is already conducting vessel and facility
exercises. One commenter stated that the Coast Guard must be aware that
the AMS exercise requirements may be overly burdensome to some vessels,
as they could potentially be required to participate in several AMS
exercises per year.
We believe that exercising the AMS Plan annually is essential to
ensure that it can be effectively implemented, stakeholders with
security responsibilities are proficient in their responsibilities, and
any deficiencies in the AMS Plan can be identified and corrected in a
timely manner. In addition, the AMS Plan exercise frequency must also
meet the international requirement for an annual exercise found in the
ISPS Code, part B, regulation 18.6. However, we realize that an AMS
Plan annual exercise requirement is in addition to the annual exercise
requirements for Vessel and Facility Security Plans. We also recognize
that many of the entities affected by Sec. 103.515 are also subject
to, or regularly participate in, other emergency response or crisis
management exercises. We are mindful of the potential burdens imposed
on the regulated community, and other port stakeholders by the number
of safety, security and response exercises required by various
regulations, and believe that the objectives for AMS Plan exercises can
often be met through effective consolidation of exercises. Further, we
acknowledge that several vessels may be offered the opportunity to
participate in several AMS Plan exercises per year. Participation in
these AMS Plan exercises will be subject to the specific details of the
AMS Plan as developed by the AMS Committee on which those vessel owners
or operators may participate. While vessel owners and operators will be
encouraged to participate in AMS Plan exercises and may be requested to
deviate from normal operations to minimize interference with the AMS
Plan exercise, they will not be required to participate. In addition,
we anticipate that COTPs will give ample notice of AMS Plan exercises
to allow vessel owners and operators to plan appropriately and to
minimize the impact on the maritime community.
Section 103.515(c) allows the cognizant District Commander to
authorize AMS Plan exercise credit for actual increases in the MARSEC
Level and implementation of security measures during periods of
critical port operations or special marine events. However, upon
further review, we have decided to revise Sec. 103.515(c) to provide
an additional option to participate in another port exercise that
contains elements of the AMS Plan but is not a stand-alone AMS Plan
exercise. This annual exercise credit is only given if approved by the
Area Commander to
[[Page 60479]]
ensure that the appropriate elements of the AMS Plan are implemented.
We have changed the approval level to the Area Commander, because the
Area Commander is the approval authority for the AMS Plan, not the
District Commander. However, we have kept the initial review at the
District Commander level in order to highlight any regional resource
issues. Once we obtain sufficient experience with AMS Plan
implementation, we will review the annual requirement and, if
warranted, may consider revising the exercise frequency. However, to
remain in compliance with our international obligations, should we deem
a change to this annual frequency to be appropriate in the future, we
must propose the change internationally.
Additional Changes
In addition, the part heading in this part has been amended to
align with all the part headings within this subchapter. We have also
corrected the Table of Contents for the entry for Sec. 103.410, which
was missing the word ``Assessment.''
Regulatory Assessment
This final rule is a ``significant regulatory action'' under
section 3(f) of Executive Order 12866, Regulatory Planning and Review.
The Office of Management and Budget has reviewed it under that Order.
It requires an assessment of potential costs and benefits under section
6(a)(3) of that Order. It is significant under the regulatory policies
and procedures of the Department of Homeland Security. A final
assessment is available in the docket as indicated under ADDRESSES. We
did not receive specific comments on the regulatory assessment for part
103. A discussion of general comments on the regulatory assessment for
subchapter H can be found in the preamble of the final rule for part
101, under ``Regulatory Assessment.''
Cost Assessment
This rule will affect stakeholders in 47 COTP zones containing 361
ports. The regulatory assessment and analysis documentation (see USCG-
2003-14733) details estimated costs to public and private stakeholders
and does not include costs to the Coast Guard. Because the changes in
this final rule do not affect the original cost estimates presented in
the temporary interim rule (68 FR 39287) (part 103), the costs remain
unchanged.
The total cost estimate of the rule, as it pertains to area
maritime security, is present value $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 present value 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 with AMS Committee
meetings, AMS Plan revisions, and information exercises and drills.
Benefit Assessment
This final rule is one of six final rules that implement national
maritime security initiatives concerning general provisions, Area
Maritime Security, 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, OCS
facilities, and areas. 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 temporary interim rule titled
``Implementation of National Maritime Security Initiatives'' (68 FR
39243) (part 101). 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 final 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 rule 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 temporary
interim rule titled ``Implementation of National Maritime Security
Initiatives'' (68 FR 39274) (part 101).
We determined annual risk points reduced for each of the six final
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 security 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 Final Rules
----------------------------------------------------------------------------------------------------------------
Annual risk points reduced by rule
-------------------------------------------------------------------------------
Maritime entity Vessel Facility OCS facility
security security security AMS AIS
----------------------------------------------------------------------------------------------------------------
Vessels......................... 778,633 3,385 3,385 3,385 1,317
[[Page 60480]]
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 1,422
----------------------------------------------------------------------------------------------------------------
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
the first-year cost is the highest in our assessment as companies
develop security plans and purchase equipment. Second, we compared the
10-year present value cost to the 10-year present value benefit. The
results of our assessment are presented in Table 2.
Table 2.--First-Year and 10-Year Present Value Cost and Benefit of the Final Rules.
----------------------------------------------------------------------------------------------------------------
Final rule
-------------------------------------------------------------------------------
Item Vessel Facility OCS facility
security security security AMS AIS *
----------------------------------------------------------------------------------------------------------------
First-Year Cost (millions)...... $218 $1,125 $3 $120 $30
First-Year Benefit.............. 781,285 473,659 13,288 135,202 1,422
First-Year Cost Effectiveness ($/ 279 2,375 205 890 21,224
Risk Point Reduced)............
10-Year Present Value Cost 1,368 5,399 37 477 26
(millions).....................
10-Year Present Value Benefit... 5,871,540 3,559,655 99,863 1,016,074 10,687
10-Year Present Value Cost 233 1,517 368 469 2,427
Effectiveness ($/Risk Point
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, 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.
We did not receive comments regarding small entities. Additional
information on small entity impacts is available in the ``Small
Entities'' section of the preamble for each final rule.
Assistance for Small Entities
Under section 213(a) of the Small Business Regulatory Enforcement
Fairness Act of 1996 (Pub. L. 104-121), we offered to assist small
entities in understanding the rule so that they could better evaluate
its effects on them and participate in the rulemaking. We provided
small entities with a name, phone number, and e-mail address to contact
if they had questions concerning the provisions of the final rules or
options for compliance.
We have placed Small Business Compliance Guides in the dockets for
the Area Maritime, Vessel, and Facility Security and the AIS rules.
These Compliance Guides will explain the applicability of the
regulations, as well as the actions small businesses will be required
to take in order to comply with each respective final rule. We have not
created Compliance Guides for part 101 or for the OCS Facility Security
final rule, as neither will affect a substantial number of small
entities.
Small businesses may send comments on the actions of Federal
employees who enforce, or otherwise determine compliance with, Federal
regulations to
[[Page 60481]]
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 final rule contains no new 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 final rules are covered by two existing OMB-
approved collections--1625-0100 [formerly 2115-0557] and 1625-0077
[formerly 2115-0622].
We did not receive comments regarding collection of information.
You are not required to respond to a collection of information unless
it displays a currently valid OMB control number. 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 the Coast Guard 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, the Coast Guard 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
final rule does have Federalism implications and a substantial direct
effect on the States. This final rule requires those States that own or
operate vessels or facilities that may be involved in a transportation
security incident to conduct security 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 that
conflict with the regulations in this final rule. This is because
owners or operators of facilities and vessels-that are subject to the
requirements for conducting security 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 that 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 enumerated 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
final rule, 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; in other words, it
would either actually conflict or would frustrate an overriding Federal
need for uniformity.
Finally, it is important to note that the regulations implemented
by this final rule 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 SOLAS 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 final rule. For these final rules, we met with the National
Conference of State Legislatures (NCSL) Taskforce on Protecting
Democracy on July 21, 2003, and presented briefings on the temporary
interim rules to the NCSL's Transportation Committee on July 23, 2003.
We also briefed several hundred State legislators at the American
Legislative Exchange Council on August 1, 2003. We held a public
meeting on July 23, 2003, with invitation letters to all State homeland
security representatives. A few State representatives attended this
meeting and submitted comments to a public docket prior to the close of
the comment period. The State comments to the docket focused on a wide
range of concerns including consistency with international requirements
and the protection of sensitive security information.
Other concerns raised by the NCSL at the briefings mentioned above
included questions on how the Coast Guard will enforce security
standards on foreign flag vessels and how multinational crewmember
credentials will be checked.
We are using the same cooperative arrangement that we have used
with success in the safety realm by accepting SOLAS certificates
documenting flag-state approval of foreign SOLAS Vessel Security Plans
that comply with the comprehensive requirements of the ISPS Code. The
consistency of the international and domestic security regimes, to the
extent possible, was always a central part of the negotiations for the
MTSA and the ISPS Code. In the MTSA, Congress explicitly found that
``it is in the best interests of the U.S. to implement new
international instruments that establish'' a maritime security system.
We agree and will exercise Port State Control to ensure that foreign
vessels have approved plans and have implemented adequate security
standards on which these rules are based. If vessels do not meet our
security requirements, the Coast Guard may prevent those vessels from
entering the U.S. or take other necessary measures that may result in
vessel delays or detentions. The Coast Guard will not hesitate to
exercise this authority in appropriate cases. We discuss the ongoing
initiatives of ILO and the requirements under the MTSA to develop
seafarers' identification criteria in the temporary interim rule titled
``Implementation of National maritime Security Initiatives''(68 FR
39264) (part 101). We will continue to
[[Page 60482]]
work with other agencies to coordinate seafarer access and
credentialing issues. These final rules will also ensure that vessel
and facility owners and operators take an active role in deterring
unauthorized access.
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 Indian Tribal
government, in the aggregate, or by the private sector of $100,000,000
or more in any one year. This final 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)). We did not receive comments regarding the Unfunded Mandates
Reform Act.
Taking of Private Property
This final 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. We did not receive comments regarding the taking of
private property.
Civil Justice Reform
This final 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. We did not receive
comments regarding Civil Justice Reform.
Protection of Children
We have analyzed this final rule under Executive Order 13045,
Protection of Children from Environmental Health Risks and Safety
Risks. While this final rule is an economically significant rule, it
does not create an environmental risk to health or risk to safety that
may disproportionately affect children. We did not receive comments
regarding the protection of children.
Indian Tribal Governments
This final 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. We
did not receive comments regarding Indian Tribal Governments.
Energy Effects
We have analyzed this final 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 final rule has a positive effect on the supply, distribution,
and use of energy. The final 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. We did not receive comments regarding energy effects.
Environment
We have considered the environmental impact of this final 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 final 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 final rule will not significantly impact the coastal zone.
Further, the execution of this final 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
Accordingly, the interim rule adding 33 CFR part 103, that was
published at 68 FR 39284 on July 1, 2003, and amended at 68 FR 41914 on
July 16, 2003, is adopted as a final rule with the following changes:
PART 103--MARITIME SECURITY: AREA MARITIME SECURITY
0
1. The authority citation for part 103 continues to read as follows:
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. 0170.1.
0
2. Revise the heading to part 103 to read as shown above.
0
3. In the Table of Contents, revise the entry for Sec. 103.410 to read
as follows:
Sec. 103.410 Persons involved in the Area Maritime Security (AMS)
Assessment.
0
4. In Sec. 103.305--
0
a. Revise paragraph (a) introductory text and paragraph (a)(5), to read
as set out below;
0
b. Redesignate paragraph (b) as paragraph (c); and
0
c. Add new paragraph (b) to read as follows:
Sec. 103.305 Composition of an Area Maritime Security (AMS)
Committee.
(a) An AMS Committee will be composed of not less than seven
members having an interest in the security of the area and who may be
selected from--
* * * * *
(5) Maritime industry, including labor;
* * * * *
(b) At least seven of the members must each have 5 or more years of
experience related to maritime or port security operations.
* * * * *
Sec. 103.500 [Amended]
0
5. In Sec. 103.500(b), remove the words ``AMS Plans are sensitive
security information and must be'' and add, in their place, the words
``Portions of the AMS Plan may contain sensitive security information,
and those portions must be marked as such and''.
0
6. In Sec. 103.505--
0
a. Redesignate paragraphs (s), (t), and (u) as paragraphs (t), (u), and
(v), respectively;
0
b. In newly redesignated paragraph (u), remove the word ``and'';
0
c. In newly redesignated paragraph (v), remove the period and add, in
its place, the word ``; and''; and
0
d. Add new paragraphs (s) and (w) to read as follows:
Sec. 103.505 Elements of the Area Maritime Security (AMS) Plan.
* * * * *
[[Page 60483]]
(s) The jurisdiction of Federal, State, Indian Tribal, and local
government agencies and law enforcement entities over area security
related matters;
* * * * *
(w) Identification of any facility otherwise subject to part 105 of
this subchapter that the COTP has designated as a public access
facility within the area, the security measures that must be
implemented at the various MARSEC Levels, and who is responsible for
implementing those measures.
0
7. In Sec. 103.515--
0
a. In paragraph (a), after the word ``conduct'', add the words ``or
participate in''; and
0
b. Revise paragraph (c) to read as follows:
Sec. 103.515 Exercises.
* * * * *
(c) Upon review by the cognizant District Commander, and approval
by the cognizant Area Commander, the requirements of this section may
be satisfied by--
(1) Participation of the COTP and appropriate AMS Committee members
or other appropriate port stakeholders in an emergency response or
crisis management exercise conducted by another governmental agency or
private sector entity, provided that the exercise addresses components
of the AMS Plan;
(2) An actual increase in MARSEC Level; or
(3) Implementation of enhanced security measures enumerated in the
AMS Plan during periods of critical port operations or special marine
events.
Dated: October 8, 2003.
Thomas H. Collins,
Admiral, Coast Guard, Commandant.
[FR Doc. 03-26346 Filed 10-20-03; 8:45 am]
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