Consolidated Cruise Ship Security Regulations, 73255-73272 [2014-28845]

Download as PDF Federal Register / Vol. 79, No. 237 / Wednesday, December 10, 2014 / Proposed Rules DEPARTMENT OF HOMELAND SECURITY Coast Guard 33 CFR Parts 101, 104, 105, 120, and 128 [Docket No. USCG–2006–23846] RIN 1625–AB30 Consolidated Cruise Ship Security Regulations Coast Guard, DHS. Notice of proposed rulemaking. AGENCY: ACTION: The Coast Guard proposes to amend its regulations on cruise ship terminal security. The proposed regulations would provide detailed, flexible requirements for the screening of all baggage, personal items, and persons—including passengers, crew, and visitors—intended for carriage on a cruise ship. The proposed regulations would standardize security of cruise ship terminals and eliminate redundancies in the regulations that govern the security of cruise ship terminals. SUMMARY: Comments and related material must be received by the Coast Guard on or before March 10, 2015. Requests for public meetings must be received by the Coast Guard on or before January 9, 2015. Comments sent to the Office of Management and Budget (OMB) on collection of information must reach OMB on or before March 10, 2015. ADDRESSES: You may submit comments identified by docket number USCG– 2006–23846 using any one of the following methods: (1) Federal eRulemaking Portal: http://www.regulations.gov. (2) Fax: 202–493–2251. (3) Mail: Docket Management Facility (M–30), U.S. Department of Transportation, West Building Ground Floor, Room W12–140, 1200 New Jersey Avenue SE., Washington, DC 20590– 0001. (4) Hand delivery: Same as mail address above, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The telephone number is 202–366–9329. To avoid duplication, please use only one of these four methods. See the ‘‘Public Participation and Request for Comments’’ portion of the SUPPLEMENTARY INFORMATION section below for instructions on submitting comments. Collection of Information Comments: If you have comments on the collection of information discussed in section VI.D. of this Notice of Proposed mstockstill on DSK4VPTVN1PROD with PROPOSALS DATES: VerDate Sep<11>2014 16:37 Dec 09, 2014 Jkt 235001 Rulemaking (NPRM), you must also send comments to the Office of Information and Regulatory Affairs (OIRA), OMB. To ensure that your comments to OIRA are received on time, the preferred methods are by email to oira_submission@omb.eop.gov (include the docket number and ‘‘Attention: Desk Officer for Coast Guard, DHS’’ in the subject line of the email) or fax at 202– 395–6566. An alternate, though slower, method is by U.S. mail to the Office of Information and Regulatory Affairs, Office of Management and Budget, 725 17th Street NW., Washington, DC 20503, ATTN: Desk Officer, U.S. Coast Guard. If you have questions on this proposed rule, call or email Lieutenant Commander Kevin McDonald, Inspections and Compliance Directorate, Office of Port and Facility Compliance, Cargo and Facilities Division (CG–FAC– 2), Coast Guard; telephone 202–372– 1168, email Kevin.J.McDonald2@ uscg.mil. If you have questions on viewing or submitting material to the docket, call Ms. Cheryl Collins, Program Manager, Docket Operations, telephone 202–366–9826. FOR FURTHER INFORMATION CONTACT: SUPPLEMENTARY INFORMATION: Table of Contents I. Public Participation and Request for Comments A. Submitting Comments B. Viewing Comments and Documents C. Privacy Act D. Public Meeting II. Abbreviations III. Basis and Purpose IV. Background V. Discussion of Proposed Rule VI. Regulatory Analyses A. Regulatory Planning and Review B. Small Entities C. Assistance for Small Entities D. Collection of Information E. Federalism F. Unfunded Mandates Reform Act G. Taking of Private Property H. Civil Justice Reform I. Protection of Children J. Indian Tribal Governments K. Energy Effects L. Technical Standards M. Environment I. Public Participation and Request for Comments We encourage you to participate in this rulemaking by submitting comments and related materials. All comments received will be posted, without change, to http:// www.regulations.gov and will include any personal information you have provided. PO 00000 Frm 00017 Fmt 4702 Sfmt 4702 73255 A. Submitting Comments If you submit a comment, please include the docket number for this rulemaking, indicate the specific section of this document to which each comment applies, and provide a reason for each suggestion or recommendation. You may submit your comments and material online at http:// www.regulations.gov, or by fax, mail, or hand delivery, but please use only one of these means. If you submit a comment online, it will be considered received by the Coast Guard when you successfully transmit the comment. If you fax, hand deliver, or mail your comment, it will be considered as having been received by the Coast Guard when it is received at the Docket Management Facility. We recommend that you include your name and a mailing address, an email address, or a telephone number in the body of your document so that we can contact you if we have questions regarding your submission. To submit your comment online, go to http://www.regulations.gov, type the docket number USCG–2006–23846 in the ‘‘SEARCH’’ box and click ‘‘SEARCH.’’ Click on ‘‘Submit a Comment’’ on the line associated with this rulemaking. If you submit your comments by mail or hand delivery, submit them in an unbound format, no larger than 81⁄2 by 11 inches, suitable for copying and electronic filing. If you submit comments by mail and would like to know that they reached the Facility, please enclose a stamped, self-addressed postcard or envelope. We will consider all comments and material received during the comment period and may change the rule based on your comments. B. Viewing Comments and Documents To view comments, as well as documents mentioned in this preamble as being available in the docket, go to http://www.regulations.gov, type the docket number USCG–2006–23846 in the ‘‘SEARCH’’ box and click ‘‘SEARCH.’’ Click on Open Docket Folder on the line associated with this rulemaking. You may also visit the Docket Management Facility in Room W12–140 on the ground floor of the Department of Transportation West Building, 1200 New Jersey Avenue SE., Washington, DC 20590, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. C. Privacy Act Anyone can search the electronic form of all comments received into any E:\FR\FM\10DEP1.SGM 10DEP1 73256 Federal Register / Vol. 79, No. 237 / Wednesday, December 10, 2014 / Proposed Rules of our dockets by the name of the individual submitting the comment (or signing the comment, if submitted on behalf of an association, business, labor union, etc.). You may review a Privacy Act notice regarding our public dockets in the January 17, 2008, issue of the Federal Register (73 FR 3316). D. Public Meeting We do not plan to hold a public meeting at this time. But you may submit a request for one to the docket using one of the methods specified under ADDRESSES. In your request, explain why you believe a public meeting would be beneficial. If we determine that one would aid this rulemaking, we will hold one at a time and place announced by a later notice in the Federal Register. mstockstill on DSK4VPTVN1PROD with PROPOSALS II. Abbreviations APA Administrative Procedure Act CFR Code of Federal Regulations CLIA Cruise Lines International Association COTP Captain of the Port CVSSA Cruise Vessel Security and Safety Act of 2010 DHS Department of Homeland Security DoS Declaration of Security EDS Explosive Detection System E.O. Executive Order FSO Facility Security Officer FSP Facility Security Plan FR Federal Register IMO International Maritime Organization ISPS International Ship and Port Facility Security ISSC International Ship Security Certificate MARSEC Maritime Security MISLE Marine Information for Safety and Law Enforcement MSC/Circ. Maritime Safety Committee Circular MTSA Maritime Transportation Security Act NAICS North American Industry Classification System NMSAC National Maritime Security Advisory Committee NPRM Notice of Proposed Rulemaking NVIC Navigation and Vessel Inspection Circular OCS Outer Continental Shelf OMB Office of Management and Budget OIRA Office of Information and Regulatory Affairs PAC Policy Advisory Council PWSA Port and Waterways Safety Act § Section symbol SSI Sensitive Security Information TSA Transportation Security Administration TSI Transportation Security Incident TSP Terminal Screening Program TWIC Transportation Worker Identification Credential U.S.C. United States Code VSP Vessel Security Plan III. Basis and Purpose The Coast Guard proposes to amend the maritime security regulations, found VerDate Sep<11>2014 16:37 Dec 09, 2014 Jkt 235001 in title 33 of the Code of Federal Regulations (33 CFR) subchapter H (parts 101 through 105), to require terminal screening programs (TSPs) in existing facility security plans (FSP) at cruise ship terminals within the United States and its territories. This proposed rule would standardize screening activities for all persons, baggage, and personal effects at cruise ship terminals while also allowing an appropriate degree of flexibility that accommodates and is consistent with different terminal sizes and operations. This flexible standardization ensures a consistent layer of security at terminals throughout the United States. This proposed rule builds upon existing facility security requirements in 33 CFR part 105, which implements the Maritime Transportation Security Act (MTSA), Pub. L. 107–295, 116 Stat. 2064 (November 25, 2002), codified at 46 U.S.C. Chapter 701. The Coast Guard consulted with the Transportation Security Administration (TSA) during the development of this proposed rule. The Coast Guard also proposes to remove 33 CFR parts 120 and 128 because provisions in those parts requiring security officers and security plans or programs for cruise ships and cruise ship terminals would be redundant with the provisions in 33 CFR subchapter H. Section 120.220, concerning the reporting of unlawful acts, would also be removed because it is obsolete and existing law enforcement protocols require members of the Cruise Lines International Association (CLIA) to report incidents involving serious violations of U.S. law to the nearest Federal Bureau of Investigation field office as soon as possible. The Coast Guard will consider issuing additional regulations on this subject in a separate rulemaking pursuant to the Cruise Vessel Security and Safety Act of 2010 (CVSSA), Pub. L. 111–207 (July 27, 2010) (See RIN 1625–AB91). This proposed rule does not address the screening of vessel stores, bunkers, or cargo. Similarly, it does not affect what items may be brought onto a cruise ship by the cruise ship operator, including items that passengers may check for secure storage with the cruise operator outside of their baggage or carry-ons. Requirements for security measures for the delivery of vessel stores, bunkers, and cargo exist and may be found in 33 CFR 104.275, 104.280, 105.265, and 105.270. This proposed rule also does not include regulations that may be required pursuant to the CVSSA. Although this rule and the CVSSA are both concerned with cruise ship security generally, this rule consolidates and updates pre- PO 00000 Frm 00018 Fmt 4702 Sfmt 4702 boarding screening requirements while the CVSSA prescribes requirements in other areas, such as cruise ship design, providing information to passengers, maintaining medications and medical staff on board, crime reporting, crew access to passenger staterooms, and crime scene preservation training. Delaying promulgation of this proposed rule while the regulations required by the CVSSA are developed, for the sole purpose of publishing all of these regulations together, would unnecessarily deprive the public of the benefit of improved cruise ship screening regulations during that period. IV. Background A. Development of 33 CFR Parts 120 and 128 Following the terrorist attack on the cruise ship ACHILLE LAURO, the International Maritime Organization (IMO) published Maritime Safety Committee Circular (MSC/Circ.) 443 on September 26, 1986, which directed contracting governments to develop measures to ensure the security of passengers and crews aboard cruise ships and at cruise ship terminals. MSC/ Circ. 443 also strongly recommended that governments ensure the development, implementation, and maintenance of ship security plans and facility security plans. MSC/Circ. 443 is available in the docket of this rulemaking, and can be obtained by following the instructions in the ‘‘Viewing comments and documents’’ section of this preamble. In recognition of IMO’s guidance on the security of cruise ships and cruise ship terminals, the Coast Guard published regulations in 1996 for the security of large passenger vessels (i.e., cruise ships) in 33 CFR part 120, and the security of passenger terminals (i.e., cruise ship terminals) in 33 CFR part 128 (61 FR 37647, July 18, 1996). These regulations include requirements for large passenger vessels and passenger terminals to submit vessel security plans and terminal security plans, respectively. Navigation and Vessel Inspection Circular (NVIC) 4–02 provides guidance for complying with these regulations. The Coast Guard has posted NVIC 4–02 in the docket of this rulemaking; see the ‘‘Viewing comments and documents’’ section of this preamble for more information. B. Development of 33 CFR Subchapter H In response to the terrorist attacks on September 11, 2001, Congress enacted MTSA to increase maritime security. In Section 101 of MTSA, Congress found E:\FR\FM\10DEP1.SGM 10DEP1 mstockstill on DSK4VPTVN1PROD with PROPOSALS Federal Register / Vol. 79, No. 237 / Wednesday, December 10, 2014 / Proposed Rules that ‘‘[c]ruise ships visiting foreign destinations embark from at least 16 [U.S.] ports,’’ and that ‘‘the cruise industry poses a special risk from a security perspective.’’ 1 In 2003, the Coast Guard implemented Section 102 of MTSA through a series of regulations for maritime security, located in 33 CFR subchapter H. These regulations require owners or operators of vessels, facilities, and Outer Continental Shelf (OCS) facilities to conduct security assessments of their respective vessels and facilities, create security plans specific to their needs, and submit the plans for Coast Guard approval by December 29, 2003. These plans must be updated at least every 5 years. The Coast Guard has required all affected vessels, facilities, and OCS facilities to operate in accordance with their plans since July 1, 2004. Included in 33 CFR subchapter H are specific security requirements for owners or operators of cruise ships and cruise ship terminals in 33 CFR 104.295 and 105.290. The Coast Guard developed these requirements to further mitigate the elevated risk of cruise ship and cruise ship terminal involvement in a transportation security incident (TSI). Among the requirements in §§ 104.295 and 105.290, owners or operators of cruise ships and cruise ship terminals must ensure that all persons, baggage, and personal effects are screened for dangerous substances and devices. The FSPs for the cruise ship terminals, approved under 33 CFR part 105, currently document the screening requirements in §§ 105.215, 105.255, and 105.290, such as qualifications and training of screening personnel, screening equipment, and the recognition of dangerous substances and devices. However, these FSPs do not include a separate section specifically addressing these screening requirements; rather FSPs address them throughout the document and in a general fashion. This rulemaking would require cruise ship terminal FSPs to follow an organized format that includes more specific aspects of screening. In particular, the Coast Guard proposes to require owners and operators of U.S. cruise ship terminals to utilize a Prohibited Items List when conducting screening of all persons, baggage, and personal effects at the terminal. This list would reduce uncertainty in the industry and the public about what is prohibited and what is not, and would help cruise ship facilities better 1 46 U.S.C.A. 70101, note, secs. 101(5) and (9). VerDate Sep<11>2014 16:37 Dec 09, 2014 Jkt 235001 implement the screening requirement in 33 CFR 105.290(a). The level of risk mitigated by the establishment of a Prohibited Items List for cruise ship terminals should align with the level of risk reduction required in MTSA. MTSA states that vessel security plans must ‘‘identify, and ensure . . . the availability of security measures necessary to deter to the maximum extent practicable a transportation security incident or a substantial threat of such a security incident.’’ Consequently, the goal of the Prohibited Items List is not to completely eliminate all possible risks, as complete risk reduction is not the risk standard set forth in MTSA. MTSA is clear that maritime transportation security plans must be written to prevent TSIs (such as the loss of the vessel or other mass casualty scenarios). While we recognize that cruise ship operators are also required to ensure screening for dangerous substances and devices under 33 CFR 104.295(a), the Coast Guard is not proposing to require them to modify VSPs in a manner similar to cruise ship terminal FSPs, for reasons of cost-effectiveness and redundancy as described below. However, we do believe that the publication of the Prohibited Items List will provide helpful guidance to cruise ship operators in complying with 33 CFR 104.295(a). Current Status of 33 CFR Parts 120 and 128 The implementation of MTSA and 33 CFR subchapter H was one step in a larger effort to revise the requirements in 33 CFR parts 120 and 128. On January 8, 2004, the Coast Guard MTSA/ International Ship and Port Facility Security (ISPS) Policy Advisory Council (PAC), whose members are all Coast Guard personnel, issued PAC Decision 04–03 to provide guidance on 33 CFR subchapter H. PAC Decision 04–03 states that ‘‘33 CFR parts 120 and 128 and NVIC 4–02 will remain in effect until July 1, 2004.’’ Since that date, cruise ships and cruise ship terminals have operated in accordance with 33 CFR subchapter H, not 33 CFR part 120 or 128. This decision is available in the docket of this rulemaking, which can be accessed by following the instructions in the ‘‘Viewing comments and documents’’ section of this preamble, and on the Coast Guard Homeport Web site at http://homeport.uscg.mil. Development of Regulations by the Transportation Security Administration In 2002, the TSA promulgated 49 CFR subchapter C, regarding the security of civil aviation after the September 11, PO 00000 Frm 00019 Fmt 4702 Sfmt 4702 73257 2001, terrorist attacks. Screening persons and property at airports is an integral element within these aviation security regulations. The TSA screening requirements for persons and property intending to board commercial aircraft include rigorous standards for screening personnel training and qualifications, screening equipment, staffing of screening stations, and screening operations at airports. The TSA enforces a Prohibited Items List and the Permitted Items List nationwide, regardless of the airline used or airport visited within the United States. To complement 49 CFR subchapter C, the TSA published and updates the Prohibited Items and Permitted Items Lists for air travel. The first version of the lists issued to implement 49 CFR 1540.111 appeared in the Federal Register on February 14, 2003 (68 FR 7444). The lists, and several subsequent updates, interpreted the meaning of the terms ‘‘weapons, explosives, and incendiaries’’ for purposes of 49 CFR 1540.111(a), and were published under authority in 5 U.S.C. 553(b) as interpretive rules without notice and comment. We drafted this proposed rule after reviewing TSA’s aircraft screening requirements. The Coast Guard’s proposed Prohibited Items List is closely aligned with TSA’s Prohibited Items List for aviation. The two lists are not exactly the same due to the distinctly different risk profiles of cruise ships and aircraft: (1) Aircraft can be used as a missile. A cruise ship, however, cannot be used as a missile and, at worst, can be grounded. (2) There are inherent limits on vulnerability reduction of prohibiting items that may already be on board the cruise ship (e.g., items such as steak knives or ice axes could be used to create a Transportation Security Incident, but they are readily available to cruise ship passengers for recreational and other purposes and thus it would be ineffective to prohibit them upon boarding). There are additional differences between cruise ships and aircraft which support the differences between the two Prohibited Items Lists: (1) The increased robustness of cruise ship design to resist an attack as compared to an aircraft and (2) The larger presence of security personnel on board cruise ships trained to combat a potential TSI. Advisory Committee Participation In addition to using the current TSA regulations as guidelines when drafting this proposal, we also drew upon the expertise of the National Maritime Security Advisory Committee (NMSAC). This committee is composed of E:\FR\FM\10DEP1.SGM 10DEP1 73258 Federal Register / Vol. 79, No. 237 / Wednesday, December 10, 2014 / Proposed Rules representatives from a cross-section of maritime industries and port and waterway stakeholders including, but not limited to, shippers, carriers, port authorities, and facility operators. The NMSAC advises, consults with, and makes recommendations to the Secretary of Homeland Security via the Commandant of the Coast Guard on matters affecting maritime security. We presented the NMSAC with the following questions relating to cruise ship and cruise ship terminal security screening measures, and asked for comments and recommendations. The NMSAC answered with industryspecific comments and recommendations, and addressed other pertinent issues as well, including screener training and reporting unlawful acts at sea. We summarized their comments and provide our responses below. The task statement and the full NMSAC recommendations may be found in the docket for this rulemaking, which can be accessed by following the instructions in the ‘‘Viewing comments and documents’’ section of this preamble. Prohibited Items List mstockstill on DSK4VPTVN1PROD with PROPOSALS 1. Would a national standardized Prohibited Items List be useful? Comment: NMSAC believes that publishing a list of Federally Prohibited Items will be beneficial to cruise ship operators and will serve to give guidance to passengers and potential passengers as to the items that may not be brought on board a cruise ship, as well as the items that may be brought aboard under controlled circumstances. Response: We agree that an important use for a Federally Prohibited Items List is to advise passengers of items they cannot bring into a cruise ship terminal or onto a cruise ship. Comment: NMSAC states that it must also be recognized by the Federal Government and all parties concerned that cruise ships differ from other types of passenger vessels, passenger vessel operations, and other transportation industries, especially air travel. This difference is a result of the size and robust construction of the ship, crewing, and the presence of trained security crew onboard. Response: We have adopted some screening measures from the airline industry because screening processes and technology have commonalities in both industries. However, the Coast Guard recognizes the difference between cruise ships and other transportation industries. We recognize that other types of passenger vehicles, such as aircraft, are primarily used for VerDate Sep<11>2014 16:37 Dec 09, 2014 Jkt 235001 transportation from one point to another, and that passengers are usually on board for a relatively short duration. Cruise ships, on the other hand, may carry thousands of passengers for up to several weeks. Additionally, cruise ships have a very different set of vulnerabilities than aircraft due to their heavier nature and significant numbers of trained security personnel, which makes certain items that present a threat to aircraft low or no risk in the context of a cruise ship concerning the potential for a TSI. Therefore, we propose tailoring our screening regulations and establishing a Prohibited Items List for use by the cruise ship industry. 2. What entity is the most appropriate generator of such a list? Comment: NMSAC believes and recommends that the Coast Guard is the correct agency to lead in the development and publication of this listing; however, TSA should be consulted due to their expertise in screening systems. Response: We agree with NMSAC that the Coast Guard should develop and maintain a dangerous substances and devices list. We have and will continue to work with TSA throughout this rulemaking and in the future to ensure the list is current and updated to address evolving threats as necessary. 3. What items should be on the list? Comment: NMSAC recommends that a Federally Prohibited Items List should recognize multiple categories, including— • Prohibited items; • Items permitted with special controls; and • Items permitted for medical use only. Response: We anticipate publishing a list of dangerous substances and devices for screening persons, baggage, and personal items at cruise ship terminals in the United States and its territories. We would retain the ability to add to or modify the list as needed. However, we recognize the need to distinguish between items prohibited at all times from items that would be permitted under specified conditions onboard a particular vessel and as documented in the Vessel Security Plan, and thus would not propose to include in regulation specific instructions relating to items allowed conditionally. Instead, control of such items that are dangerous in some situations or quantities would be left to the discretion of the cruise ship operators. Comment: NMSAC states that cruise ship passengers as well as crew have access to their baggage and are regularly PO 00000 Frm 00020 Fmt 4702 Sfmt 4702 involved in activities and events associated with a lengthy vacation or special celebration. In contrast, passengers and crew aboard an aircraft do not have access to checked baggage. Because of the difference in access, some items, such as guns, are permitted to be carried in checked baggage onboard an aircraft, but such items would not be permitted onboard a cruise ship at all. Response: We agree that a list of items prohibited on a cruise ship may be different from those prohibited on aircraft. The most obvious difference is that there will be no distinction between checked baggage or carry-on items, since passengers and crew will have access to their personal items once they are onboard. Comment: Some items, such as a steak knife, which would be prohibited onboard a passenger aircraft, are not only available onboard a cruise ship but will also be delivered to a person’s room with a meal. Other such items such as aerosols sold in the ships stores, and fire axes as part of the ships safety equipment, are also normally available onboard ship. Other items which are commonly permitted onboard a cruise ship may include: A diver’s spear gun or knife; a chef’s personal cutlery; SCUBA tanks; firearm replicas and indoor pyrotechnics used for stage productions; compressed gas cylinders for personal use or ship repair; and tools needed for specialized ship repair or maintenance. All these are part of the everyday activities or life on board a ship that may be away from port for days at a time. This listing is certainly not exhaustive. Each of these items is important to the cruise experience and must be permitted onboard with proper controls over access and use. Response: We agree that it would be unproductive to prohibit an item that can be purchased in a ship store or that is available from room service (e.g. a steak knife). However, cruise lines may choose to prohibit passengers from carrying knives or axes onboard without prior approval and under controlled procedures. We also agree that when determining the items that will and will not be allowed onboard a cruise ship or into a cruise ship terminal, consideration must be given to those items that passengers would reasonably be expected to need in order to enjoy the cruise. Items including, but not limited to, dive knives, spear guns, and SCUBA tanks may fit into this category and, as suggested by NMSAC, may be acceptable if controlled by ship security personnel until the passengers need them. E:\FR\FM\10DEP1.SGM 10DEP1 mstockstill on DSK4VPTVN1PROD with PROPOSALS Federal Register / Vol. 79, No. 237 / Wednesday, December 10, 2014 / Proposed Rules Comment: Generally NMSAC believes that screening, and any list of prohibited and controlled items, should only apply to personal baggage and carry-on items, not to ship stores. Items that are part of ship stores and for the ship’s operations and guest programs should not be considered to be subject to this listing. For example, gasoline may be carried as part of the ship’s stores for use in ship carried jet skis. Response: We agree with NMSAC’s recommendations that, for the purposes of this rulemaking, the dangerous substances and devices list should not apply to ship stores. Ship stores are outside the scope of this rulemaking. Comment: In the event a listed item is discovered on board, NMSAC recommends that the response be measured and based upon the nature of the item discovered and the actual threat that the item presents. Nor should it be considered as a listing of items which would automatically constitute a violation or breach of security if one of the items is discovered onboard. NMSAC additionally recommends that a clear statement be included to the effect that the response to a nondetectable or controlled item discovered on board should be based upon the nature of the item and the actual threat presented and that discovery of such an item would not necessarily constitute a violation or breach of security. Response: We agree that the appropriate response to the discovery of a prohibited item onboard should be measured, and based upon the nature of the item and the actual threat it presents. However, a listed prohibited item that has passed through security screening and is discovered onboard would constitute a breach of security as defined in 33 CFR 101.105, since a security measure has been circumvented, eluded, or violated. Although a breach of security is a violation, the Coast Guard would not necessarily have to take enforcement action. The Coast Guard would examine each event based on the circumstances and details of the breach, the actual threat posed by the item or items, and remedial action taken after the breach is detected. The ultimate goal of the regulation is to provide security to cruise ship passengers, crews, the cruise ship, and the cruise ship terminal. Screening Equipment 1. What is the possibility of standardizing screening methods, similar to the methods employed by TSA at airports? Comment: NMSAC notes that the task statement from the Coast Guard states: VerDate Sep<11>2014 16:37 Dec 09, 2014 Jkt 235001 ‘‘Some cruise ship terminals use metal detectors, x-ray systems, explosive detection systems, and/or canines for screening and that their use and operation is not uniform across the U.S.’’ NMSAC questions the Coast Guard’s statement that only some cruise ship terminals contain appropriate detection equipment, and that the use of this equipment is not uniform across the United States. The Coast Guard regulatory requirements contained in 33 CFR parts 120 and 128 require both cruise ships and cruise ship passenger terminals to have in place effective security plans for three levels of security, which include requirements for screening of baggage, ship stores, carry-on items, and persons. These regulations and accompanying guidance implemented by approved plans would be expected to provide for this unity of purpose and application of performance standards contained in the regulations. Response: During visits at several cruise ship terminals, cruise ship embarkation ports, and ports of call, the Coast Guard witnessed various types of screening activities. Most terminals use metal detectors and x-ray systems. Some terminals use canines and other terminals, normally ports of call, screen by hand. Cruise ships and cruise ship terminals have been subject to 33 CFR parts 120 and 128, and after July 1, 2004, to the International Ship and Port Facility Security Code and 33 CFR subchapter H. To minimize potential risk associated with cruise ships and cruise ship terminals, we propose implementing more detailed regulations. We would retain the spirit of the performancebased standards in 33 CFR subchapter H. 2. Should standards be developed for the screening equipment used at U.S. cruise ship terminals and ports of call? Comment: In seeking to ensure consistency throughout the United States regarding screening activities at cruise ship terminals, NMSAC notes that flexibility is an absolute necessity in the cruise ship industry. NMSAC agrees with performance standards for training or certification, and for minimum consistency of equipment. However, what equipment is employed and how it fits into an effective system for assuring security should remain flexible. Response: We agree that flexibility is necessary, and note that consistency of screening equipment would mean consistency in the performance standards of equipment. Comment: NMSAC recommends that specificity of performance standards or PO 00000 Frm 00021 Fmt 4702 Sfmt 4702 73259 goals could be developed for detection equipment; to specify exactly which equipment should be used would be counterproductive to development of new technology. Standardization of application would also prevent the flexibility to meet varying operational requirements, varying threats that may be encountered by different size ships at different ports. Standardization would also prevent the flexibility to meet varying operational requirements, and varying threats that may be encountered. Response: We agree. The equipment would need to be adequate to meet specific performance standards. The Coast Guard intends to allow each owner or operator of a cruise ship facility to specify the type of screening equipment used to detect prohibited items. Comment: NMSAC notes that the Department of Homeland Security (DHS) has established a Transportation Screening Capability Working Group. The focus of the group is to identify screening capabilities and needs. As such, the work of this group appears to be of interest to NMSAC particularly in regard to this current tasking and interface between the Working Group and NMSAC is recommended. At a minimum, DHS representatives should be invited to brief NMSAC with regards to the work, conclusions, and recommendations of the Working Group. Response: We agree that it may be necessary to invite DHS representatives to discuss current screening initiatives. Comment: NMSAC recommends that performance standards for detection equipment be developed in conjunction with the above mentioned Working Group, and that a listing of items to be detected by these screening systems be developed. Response: We will continue to work with TSA and DHS representatives regarding equipment performance standards. Comment: NMSAC also states that, while an item may be prohibited, this does not mean that technology exists for detecting such items during the screening process. Screening should not be expected for items that cannot be detected. NMSAC notes that a prohibited items listing should not be indiscriminately mistaken to be the exact listing of items that must be detected by current screening technology or screening personnel. They state that it is a well-known and established fact that 100 percent screening does not equate to 100 percent detection and a number of the items potentially listed are not detectable by E:\FR\FM\10DEP1.SGM 10DEP1 mstockstill on DSK4VPTVN1PROD with PROPOSALS 73260 Federal Register / Vol. 79, No. 237 / Wednesday, December 10, 2014 / Proposed Rules current screening technology or processes. Response: We recognize that requiring screening of all persons, baggage, and personal items does not realistically equate to 100 percent detection of prohibited items. Screening should ensure that there are no dangerous substances or devices present on cruise ships or in terminals. The Coast Guard would place items on a dangerous substances and devices list that we determine to pose a real danger to security. Detection measures should be employed to ensure, to the greatest practicable extent, that such dangers are not present. If a listed item is found onboard, the owners or operators of cruise ships or terminals should examine their screening processes to determine the reason they did not detect the item during the screening process. As part of this examination, owners or operators of cruise ships and terminals should review security measures, such as qualification and training of screening personnel as well as the technology they use. It is not the intent of the proposed rule to expect or demand more than is possible or achievable given available technology. The goal should be continuous process improvement. Comment: NMSAC is aware that current screening capabilities do not readily detect or identify certain items that may currently be prohibited onboard either an aircraft in carry-on baggage or otherwise or onboard ships. Accordingly, electronic screening should not include items that cannot be detected by current capabilities and other screening should not be required for these items unless the threat of introduction is so high (Maritime Security Level III) that alternate means of screening is necessary. Response: We agree that the technology required to screen for certain prohibited items, especially nuclear, biological, and chemical agents, either does not exist or may be excessively expensive. We expect screening to be conducted at cruise ships and cruise ship terminals using several methods and technologies already employed for screening at airports, such as metal detectors and x-ray machines. Although a dangerous substances and devices list may include items for which screening technology does not exist, we expect the cruise ships’ or terminals’ screening personnel to attempt to detect these materials using screening methods other than electronic equipment. For example, during an escalated Maritime Security (MARSEC) Level 2 or 3, we would require alternate means of screening that may include random hand searches or VerDate Sep<11>2014 16:37 Dec 09, 2014 Jkt 235001 other methods appropriate to the threat. MARSEC Levels advise the maritime community and the public of the level of risk to the maritime elements of the national transportation system. There are only three MARSEC levels. MARSEC Level 1 is the level for which minimum appropriate security measures shall be maintained at all times. Under 33 CFR 101.200(b), unless otherwise directed, each port, vessel, and facility must operate at MARSEC Level 1. 3. What standards should apply if canines were to be used to screen for the presence of explosives at U.S. cruise ship terminals? Comment: NMSAC recommends that any need for and use of canines for screening should be clearly written into the security plan that is required by 33 CFR part 105. Because each terminal operation, passenger ship, threat information, and security operation is different, a ‘‘one size fits all’’ regulation to meet the ‘‘when’’ and ‘‘how’’ of canine use will not work. Instead, this can be broken into three issues: a. When should canines be utilized for screening? b. How should canines be used for screening? c. What should be the training and certification requirements for the canine and the handler? With regards to item c. above, NMSAC acknowledges that cruise ship industry canine security representatives have been meeting with USCG and DHS officials to discuss appropriate regulatory requirements for the certification of both dog and handlers. NMSAC does not possess the expertise to overtake these discussions and therefore declines to offer recommendations in this regard. As the end users of canine screening or search capabilities, NMSAC members would be interested in receiving a briefing of this regulatory development project. Response: We agree, and do not propose mandating the use of canines for normal screening operations. We do recognize the need to address required standards in the event that terminals or cruise ships voluntarily use canines to screen for explosives. The Coast Guard is engaged in separate, ongoing projects to address the use of canines at maritime facilities, including cruise ship and other passenger facilities. C. Miscellaneous 1. Training of Screening Personnel Comment: NMSAC believes that the development of national standards for training screening personnel is PO 00000 Frm 00022 Fmt 4702 Sfmt 4702 appropriate. NMSAC recommends that such standards should be developed in cooperation with the maritime industry and appropriate professional stake holders, and should address the basic knowledge, understanding, and proficiency to be demonstrated by candidates to receive certification. Given the difference in cruise ship operations, as well as the cruise ships themselves and the ports they visit, consideration should be given to different levels of certification. Response: We agree that a need exists for national standards for training screening personnel, and that these standards should be developed in cooperation with the maritime industry and appropriate professional stake holders. The Coast Guard proposes adding a new § 105.535 to set forth training requirements of screeners, who must demonstrate knowledge, understanding, and proficiency in various security related areas as part of their security-related familiarization. 2. Unlawful Acts Reporting Requirement (33 CFR 120.220) Comment: NMSAC recommends that the consolidation of 33 CFR 120 & 128 into 33 CFR Subchapter H be clarified so that unlawful acts involving felonies or other serious crime are promptly reported to the agency that has the proper jurisdiction for investigation and prosecution. A variety of governmental entities, both foreign and domestic, exercise law enforcement authority over each ship, depending upon where it is located, where it has come from and where it may be going to. Alleged criminal acts involving U.S. citizens are already reported to the appropriate law enforcement agencies. Response: Existing law enforcement protocols contain standards for the types of crimes that owners or operators of cruise ships must report as well as the form and the timeliness of that reporting. Under those protocols, members of the Cruise Lines International Association (CLIA) are already obligated to report incidents involving serious violations of U.S. law, which include but are not limited to homicide, suspicious death, assault with serious bodily injury, and sexual assaults to the nearest Federal Bureau of Investigation field office as soon as possible. The Coast Guard will consider issuing additional regulations on this subject in a separate rulemaking pursuant to the Cruise Vessel Security and Safety Act of 2010 (CVSSA.), Pub. L. 111–207 (July 27, 2010). E:\FR\FM\10DEP1.SGM 10DEP1 Federal Register / Vol. 79, No. 237 / Wednesday, December 10, 2014 / Proposed Rules 3. Definition of Cruise Ship Comment: NMSAC stated that they have not defined ‘‘cruise ship’’. Response: We will use the definition for cruise ship currently in 33 CFR 101.105. V. Discussion of Proposed Rule In the paragraphs below, we explain the origins and rationale for the proposed changes in this NPRM. We organized the discussion according to the section number in which each change would appear. mstockstill on DSK4VPTVN1PROD with PROPOSALS § 101.105 Definitions The Coast Guard proposes amending § 101.105 by adding new definitions for carry-on item, checked baggage, cruise ship terminal, cruise ship voyage, disembark, embark, explosive detection system (EDS), high seas, port of call, screener, and TSP. § 104.295 Additional Requirements— Cruise Ships Currently, the Coast Guard requires cruise ship owners or operators to ensure that screening is performed for all persons, baggage, and personal effects. This requirement is usually fulfilled in coordination with the U.S. cruise ship terminals, with which the cruise ships interface. We propose to add language in this section requiring cruise ship owners or operators to ensure screening is performed in accordance with proposed subpart E of part 105. Cruise ship owners or operators would continue to ensure that screening is performed, and we anticipate that they would continue to coordinate screening with the cruise ship terminals. While cruise ship terminals would be required to incorporate the Prohibited Items List into their FSPs, we are not proposing to require cruise ship operators to include the list in their VSPs. We believe that such a proposal would be redundant on two levels. First, passengers and screeners would be aware of the Prohibited Items List because it is already required to be available at all screening locations under 33 CFR 105.515(c). Second, nearly all cruise ships operate under an International Ship Security Certificate (ISSC), which details procedures for screening dangerous substances and devices. Additionally, 33 CFR 104.295(a) would require that when passengers embark at a point that is not at a terminal, cruise ship screeners must meet the training requirements of 33 CFR 105.535, which requires that they are familiar with the contents of the Prohibited Items List. For these reasons, we believe that the additional VerDate Sep<11>2014 16:37 Dec 09, 2014 Jkt 235001 paperwork burden requiring the incorporation of the Prohibited Items List into the cruise ships’ VSP would be unnecessary. § 105.225 Facility Record-Keeping Requirements Within this section, we propose to add language referencing proposed § 105.535 for the safekeeping of screener training records. Currently, the Facility Security Officer (FSO) is responsible for recordkeeping. As proposed, the FSO’s recordkeeping responsibilities would be extended to include screener training records. See the discussion of § 105.535 in this preamble for additional information on changes to that section. § 105.290 Additional Requirements— Cruise Ship Terminals We propose to amend § 105.290 by revising paragraph (b) and adding language to paragraph (a) referencing proposed subpart E. The Coast Guard would require owners or operators of cruise ship terminals to conduct screening in accordance with subpart E, and identification requirements would be clarified. § 105.405 Format and Content of the Facility Security Plan (FSP) The Coast Guard proposes amending § 105.405 by adding new paragraph (a)(21). This new paragraph would require that owners or operators of cruise ship terminals ensure that the FSPs include a TSP that is submitted to the Coast Guard for approval. See the discussion of § 105.505 in this preamble for additional information on the TSP. The Coast Guard is also reserving paragraphs (a)(19) and (a)(20) as it is considering proposing additional amendments to § 105.405 in separate rulemakings. Subpart E—Facility Security: Cruise Ship Terminals The Coast Guard proposes to add a new subpart to part 105 specifically related to the screening of all persons, baggage, and carry-on items performed at cruise ship terminals. This new subpart would be titled Facility Security: Cruise Ship Terminals. Below, we discuss the proposed sections to be included in this subpart. § 105.500 General This proposed section encompasses the applicability, purpose, and compliance dates for subpart E. First, subpart E would apply to cruise ship terminals only. For this NPRM, we consider any U.S. facility that receives cruise ships as they are defined in 33 CFR 101.105, or tenders from cruise PO 00000 Frm 00023 Fmt 4702 Sfmt 4702 73261 ships, to embark or disembark passengers or crew as being cruise ship terminals. These include facilities where the majority of passengers embark with checked baggage, as well as facilities where passengers may visit for a limited time and then re-board the cruise ship. As described previously in the discussion of proposed changes in § 104.295 of this preamble, the Coast Guard would require cruise ship owners or operators to coordinate screening operations with the terminal owners or operators. The purpose of subpart E is, as stated above, to ensure security at cruise ship terminals. Specifically, subpart E is included in this proposed rule to give terminal owners or operators more detailed requirements to assist development of their screening regimes. However, based on our analysis of current cruise ship terminal screening procedures, we do not believe that these requirements would necessitate operational changes at any existing cruise ship terminal at this time. Instead, the existence of the regulation would set a screening ‘‘floor,’’ as well as provide certainty as to the minimum requirements. Finally, the Coast Guard proposes to require cruise ship terminal owners or operators to submit their TSPs to the Coast Guard for approval no later than 180 days after publication of the final rule. Subsequently, the terminal owners or operators would have to operate in accordance with their TSPs 1 year after publication of the final rule. § 105.505 Terminal Screening Program (TSP) This section would detail the requirements of the TSP. The Coast Guard would require the TSP to be included as part of the FSP, and to document the screening process for all persons, baggage, and personal items from the time that the person or baggage first enters the cruise ship terminal until the person or baggage arrives aboard a cruise ship moored at the facility. We acknowledge that FSPs currently approved by the Coast Guard address screening procedures within the section for access control. However, the TSP, as part of the FSP, would provide a more detailed description of the screening process at cruise ship terminals. Also, as part of the FSP, audits and amendments to the TSP would fall under current requirements in § 105.415. A list of specific topics the TSP would address is included in § 105.505(c). These topics include qualifications and training of persons conducting screening, screening methods and equipment used at the terminal, and procedures employed E:\FR\FM\10DEP1.SGM 10DEP1 73262 Federal Register / Vol. 79, No. 237 / Wednesday, December 10, 2014 / Proposed Rules when a dangerous substance or device is detected during screening operations. In developing the requirements for TSPs, we drew upon the current requirements for FSPs and the requirements contained in 49 CFR 1544.103 for security programs developed by air carriers and commercial operators that conduct screening at airports. TSA regulations in 49 CFR 1544.103 were useful in the development of this NPRM because those regulations apply to commercial, non-governmental entities conducting screening. Nevertheless, we understand that wholesale adoption of the TSA regulations would not be appropriate for cruise ship terminals because of differences between the operations of the airline and cruise ship industries. § 105.510 Responsibilities of the Owner or Operator The Coast Guard proposes adding a new § 105.510, detailing the cruise ship terminal owners’ or operators’ responsibilities regarding screening of all persons, baggage, and personal items at the terminal. The requirements in this section are in addition to the responsibilities described in 33 CFR 105.200. This proposed section would ensure that cruise ship terminal owners or operators develop and perform several aspects of the screening process, such as the following— • Developing and implementing the TSP; • Documenting screening responsibilities in the Declaration of Security (DoS); • Enforcing the Prohibited Items List; and • Establishing procedures for reporting, handling, and controlling prohibited items.2 The owner or operator ultimately retains responsibility for the security of the cruise ship terminal. By ensuring that screening is performed according to these proposed regulations, the owner or operator would ensure an essential component of overall security is in place for both the cruise ship and the terminal. mstockstill on DSK4VPTVN1PROD with PROPOSALS § 105.515 Prohibited Items List The Coast Guard proposes to require owners and operators of U.S. cruise ship terminals to utilize a Prohibited Items List when conducting screening of all persons, baggage, and personal effects at the terminal. The Coast Guard would also require cruise ship owners or operators of cruise ship terminals to 2 We believe all terminal operators would currently meet the proposed standards. VerDate Sep<11>2014 16:37 Dec 09, 2014 Jkt 235001 include a list of dangerous substances and devices in every DoS. During development of proposed § 105.515, the Coast Guard reviewed the TSA list of prohibited and allowed items for aircraft travel, as discussed in the Background section of this preamble. We also took into account current industry practices, including collaboration between cruise ship and terminal owners or operators to develop the List. Finally, we considered the input received from NMSAC, which is also discussed in the Background section of this preamble. The Coast Guard recognizes that owners or operators of cruise ships and cruise ship terminals have a vested interest in prohibiting dangerous substances and devices on their property. In order to reduce uncertainty in the cruise line industry and the public about what is prohibited and what is not, and to better implement the screening requirements in 33 CFR 104.295(a) and 105.290(a), the Coast Guard proposes to issue and maintain a list of prohibited items that are always considered to be dangerous substances and devices, as defined in 33 CFR 101.105. The Coast Guard would prohibit these dangerous substances and devices for security reasons. Accordingly, passengers and crew would be prohibited from bringing onboard a cruise ship items on the Prohibited Items List at any time through a cruise ship terminal regulated under 33 CFR part 105. If an item from the Coast Guard’s Prohibited Items List is discovered after passing through the screening location at the cruise ship or terminal, the owner or operator would be required to report a breach of security. The Coast Guard also recognizes that some items on the list are necessary to accommodate normal cruise ship operations. For this reason, the prohibited items list would not apply to cargo and vessel stores. We also note that the Prohibited Items List does not necessarily encompass all ‘‘dangerous substances and devices,’’ and that cruise ship and terminal operators can prohibit passengers from bringing on board any other items or substances they deem a threat to safety. Interpretative Rules Under 5 U.S.C. 553(b)(A), the notice and comment rulemaking requirements of the Administrative Procedure Act (APA) do not apply to interpretative rules. The preamble to this proposed rule contains a proposed version of the Prohibited Items List. Although the Coast Guard does not waive its claim that this list is exempt from APA notice and comment requirements, we are PO 00000 Frm 00024 Fmt 4702 Sfmt 4702 soliciting comments at this time on the content of the proposed list because the Coast Guard is aware of the unique challenges inherent to security screening in the cruise industry context. Whereas airline screening can be conducted with the understanding that airline travel is undertaken for only a relatively short period of time and with a focused mission, cruise travel can be for much longer periods of time and with travelers participating in varying activities. Additionally, there is no distinction in cruise travel between checked baggage or carry-on items, since passengers and crew will have access to their personal items once they are onboard. Interpretive rules are ‘‘issued by an agency to advise the public of the agency’s construction of the statutes and the rules which it administers.’’ Attorney General’s Manual on the Administrative Procedure Act at 30 n.3. In other words, an interpretive rule describes, clarifies, and reminds the public of a statutory standard or preexisting rule. Courts have upheld a general standard to determine if a rule is interpretative. American Mining Congress v. Mine Safety and Health Admin., 995 F.2d 1106 (D.C. Cir. 1993). The Prohibited Items List meets this standard. To determine if a rule is interpretive, as opposed to legislative, the rule must meet four criteria. Id. at 1112. First, in the absence of the interpretive rule there must be adequate legislative or regulatory basis for enforcement action. Second, an interpretative rule must not be published in the Code of Federal Regulations. Third, the agency cannot evoke its general grant of authority when promulgating an interpretative rule. Fourth, the interpretive rule must not effectively amend a prior legislative rule. The development of the Prohibited Items List meets the four-part American Mining standard for an interpretive rule. First, the Coast Guard has existing regulatory authority to require screening for dangerous substances or devices under 33 CFR 104.295 and 105.290, which mandate that the owner or operator of a cruise ship and facility ensure that all passengers and baggage are screened for such material. The existing definition of ‘‘dangerous substances and devices,’’ which means ‘‘any material, substance, or item that reasonably has the potential to cause a transportation security incident,’’ already provides an adequate basis for enforcement action on its own, without further explication (these regulations were promulgated as a legislative rule under authority of the Ports and E:\FR\FM\10DEP1.SGM 10DEP1 mstockstill on DSK4VPTVN1PROD with PROPOSALS Federal Register / Vol. 79, No. 237 / Wednesday, December 10, 2014 / Proposed Rules Waterways Safety Act (PWSA) and the Maritime Transportation Safety Act (MTSA) (see 33 U.S.C. 1221 and 46 U.S.C. 1221)). Second, the final list will not be incorporated into the Code of Federal Regulations. While we are publishing a draft version of the list in the Federal Register as part of the preamble to this proposed regulation to allow for comment because of the unique challenges faced when screening cruise line passengers, the list is not part of the proposed regulatory text will not appear in the Code of Federal Regulations upon publication of the Final Rule. Third, the Coast Guard has not invoked its general legislative authority when promulgating the list. The authority for this interpretive rule is the authority for the Coast Guard to interpret its own regulations in 33 CFR 101.105, 104.295, and 105.290. Fourth, the rule does not effectively amend a prior legislative rule. Instead, the prohibited items list is only a partial explication of the phrase ‘‘dangerous substances and devices,’’ as defined in 33 CFR 101.105. What the Prohibited Items List adds is a list of substances and items that the Coast Guard believes, under all circumstances, have the potential to cause a TSI. The Prohibited Items List would not be a substitute for the regulatory definition in section 101.105, as other substances and devices could have the potential to cause a TSI under specific circumstances, and would be addressed in the TSPs of the specific vessels or facilities at issue. Due to rapidly-developing threat analysis and security considerations, the Coast Guard requires the flexibility to revise the Prohibited Items List quickly to protect the public from security threats that can change rapidly. In order to keep the list current without the delays often associated with notice and comment rulemakings, the Coast Guard proposes to publish the list separately as an interpretive rule in the Federal Register, and to issue updates in the same manner. In proposing this approach, the Coast Guard took note of TSA’s use of interpretive rules to promulgate and update its list of prohibited items (67 FR 8340, February 22, 2002; 68 FR 7444, February 14, 2003; 70 FR 9877, March 1, 2005; 70 FR 51679, August 31, 2005; and, 70 FR 72930, December 8, 2005). Additionally, the Coast Guard would endeavor to obtain NMSAC input and afford ship and facility owners a reasonable amount of advance notice before making an update effective unless an immediate change is necessary for imminent public safety and/or national security reasons. VerDate Sep<11>2014 16:37 Dec 09, 2014 Jkt 235001 73263 Finally, we reiterate that the Prohibited Items List would only prohibit passengers from carrying items in baggage or on their persons; it does not prohibit these items from being brought onboard by cruise ship operators on their behalf. The Coast Guard is soliciting public comments on the content of the proposed Prohibited Items List shown below due to the unique challenges inherent to security screening in the cruise industry context. Additionally, we invite public comments on the use of interpretive rules to issue and update the list. • Liquid bleach • Tear gas and other self defense sprays The Prohibited Items List does not contain all possible items that may be prohibited from being brought on a cruise ship by passengers. The Coast Guard and the cruise ship terminal reserve the right to confiscate (and destroy) any articles that in our discretion are considered dangerous or pose a risk to the safety and security of the ship, or our guests, and no compensation will be provided. Proposed Prohibited Items List for Cruise Ship Terminals Section 105.525 would specify how cruise ship terminal owners or operators must screen persons, personal effects, and baggage and where the screening must take place. Additionally, this new section would provide staffing requirements for screening operations. During development of this proposed section, the Coast Guard identified several components of existing screening process requirements that should be preserved throughout all U.S. cruise ship terminals. The proposed regulations are primarily performancebased, but specific procedures must take place to ensure the security of persons, their personal effects, and baggage. Section 105.525 specifies requirements for screening passengers, persons other than passengers, checked baggage, and unaccompanied baggage. As proposed, the screening of passengers and persons other than passengers (such as crew members, vendors, or contractors) may take place at the same screening location, or at separate screening locations, which is current industry practice. The Coast Guard would require application of the same standards for screening locations, regardless of who is being screened. Adequate staffing, checking personal identification, and re-screening are all addressed in this subparagraph. If a cruise ship terminal checks baggage, screening or security personnel would be required to control the baggage throughout the screening process. If a terminal accepts unaccompanied baggage, then the cruise ship’s Vessel Security Officer would need to provide written consent. Screening or security personnel would then treat the unaccompanied baggage as checked baggage. The Coast Guard would require terminal owners or operators to document additional screening methods in an approved TSP. Further, the Captain of the Port (COTP) may direct additional screening methods that are appropriate for each terminal. Passengers and persons other than passengers are prohibited from bringing the following items onboard cruise ships through terminal screening operations regulated under 33 CFR part 105. Weapons, Including • Hand Guns (including BB guns, pellet guns, compressed air guns and starter pistols, as well as ammunition and gunpowder) • Rifles/shotguns (including BB guns, pellet guns, compressed air guns and starter pistols, as well as ammunition and gunpowder) • Stun guns or other shocking devices (e.g. Taser®, cattle prod) • Realistic replicas and/or parts of guns and firearms Explosives, Including • • • • • • • • Blasting caps Dynamite Fireworks or pyrotechnics Flares in any form Hand grenades Plastic explosives Explosive devices Realistic replicas of explosives Incendiaries, Including • Aerosols (including spray paint but excluding items for personal care or toiletries in limited quantities) • Gasoline or other such fuels or accelerants • Gas torches • Lighter fluids (except in liquefied gas (e.g. Bic®-type) or absorbed liquid (e.g. Zippo®-type) lighters in quantities appropriate for personal use) • Turpentine • Paint thinner • Realistic replicas of incendiaries Disabling Chemicals and Other Dangerous Items, Including • Chlorine PO 00000 Frm 00025 Fmt 4702 Sfmt 4702 § 105.525 Terminal Screening Operations E:\FR\FM\10DEP1.SGM 10DEP1 73264 § 105.530 Federal Register / Vol. 79, No. 237 / Wednesday, December 10, 2014 / Proposed Rules Qualifications of Screeners The Coast Guard proposes adding § 105.530 to address basic qualifications for cruise ship terminal screeners. While the Coast Guard researched TSA’s regulations during the development of this section, specifically 49 CFR 1544.405, which describes qualifications for new screeners when commercial carriers and aircraft operators provide screening, we are proposing screening requirements that are less rigorous than those for airline screeners, for the reasons described below. As mentioned in the discussion of § 105.505 in this preamble, TSA’s aviation regulations provide a solid foundation for screening standards, but they are not wholly appropriate for cruise ship terminals. For example, while the Aviation Transportation Security Act (ATSA) requires a high school diploma, MTSA contains no such requirement. The Coast Guard would require the screener to have, as a prerequisite, a combination of education and experience that the Facility Security Officer deems appropriate for the position. Additionally, the screener must be able to use all the screening equipment and methods appropriate for the position. Taken together with the requirements in 33 CFR 105.210, these qualifications would help to ensure that screeners have the ability to perform their duties. mstockstill on DSK4VPTVN1PROD with PROPOSALS § 105.535 Training Requirements of Screeners Screeners at cruise ship terminals currently receive training in accordance with § 105.210, as well as facilityspecific familiarization. The Coast Guard proposes to add requirements for certain topics to be covered during the facility-specific familiarization. This training would ensure that the screeners are instructed in the screening process used at the cruise ship terminal where they would be working. These topics would include— • Historic and current threats against the cruise ship industry; • Relevant portions of the approved TSP and FSP; • The purpose and content of the approved Prohibited Items List; • Specific instruction on the screening equipment and methods used at the terminal; • Specific response procedures when a dangerous substance or device is detected at the terminal; • Additional screening methods performed at increased MARSEC Levels; and VerDate Sep<11>2014 16:37 Dec 09, 2014 Jkt 235001 • Any additional topics specified in the terminal’s approved TSP. § 105.540 Screener Participation in Drills and Exercises Section 105.220 currently requires security drills and exercises. In proposed § 105.540, the Coast Guard would require screening personnel to participate in drills and exercises performed at the cruise ship terminal. The drills and exercises would be excellent opportunities not only for testing the terminal’s FSP, including the TSP, but also would refresh the screeners’ training. § 105.545 Screening Equipment This section would address operation and maintenance of x-ray, explosives detection, and metal detection equipment used to screen all persons, baggage, and personal effects at U.S. cruise ship terminals. Again, the Coast Guard researched TSA’s standards for screening performed by air carriers and commercial operators in 49 CFR part 1544. Specifically, TSA’s regulations address the use of metal detectors, x-ray systems, and explosives detection systems in 49 CFR 1544.209, 1544.211, and 1544.213. Most cruise ship terminals use these systems already. Therefore, we used 49 CFR part 1544 as a guide for the proposed regulation, with the understanding that the maritime environment of a cruise ship terminal is inherently different from the environment of an airport. The proposed requirements are performance-based. The Coast Guard would not require the use of specific equipment or screening methods. However, if metal detection, explosive detection, or x-ray equipment is used at a cruise ship terminal, then safety and performance standards similar to the standards for equipment at airports would be required. Further, such screening equipment would be documented in the terminal’s TSP. Of particular note is the proposed signage requirement if x-ray equipment is used at the terminal. Similar to airports, people bring film and photographic equipment to cruise ship terminals on a regular basis. Since x-ray systems may have an effect on film and photographic equipment, we propose to add this signage requirement to ensure that persons being screened receive adequate notice. § 105.550 Alternative Screening The Coast Guard proposes to add a section concerning alternative screening methods including procedures for passengers and crew with disabilities or medical conditions precluding certain PO 00000 Frm 00026 Fmt 4702 Sfmt 4702 screening methods. If a cruise ship terminal owner or operator chooses to employ screening methods other than xray, metal detection, or explosives detection equipment, then each method must be described in detail within the TSP. The Coast Guard intends this proposed section to allow cruise ship terminal owners or operators flexibility in their screening methods. We believe this would be helpful as new technologies develop. It would allow flexibility at terminals with space constraints, or if terminal owners or operators use a contingency screening method when a piece of equipment fails. Alternative screening methods may take many forms. For example, terminal owners or operators may use canine explosives detection or manually search baggage and personal effects. 33 CFR Parts 120 and 128 In July 2004, when vessels and facilities subject to 33 CFR parts 120 and 128 became subject to 33 CFR parts 101, 103, 104 and 105, the Coast Guard placed specific requirements pertaining to cruise ships and cruise ship terminals in 33 CFR 104.295 and 105.290, respectively. While parts 120 and 128 use slightly different terms than parts 104 and 105, the concept of ensuring that maritime entities have security plans is the same. Therefore, this NPRM proposes removing regulations in parts 120 and 128 that require security officers and security plans similar to those required in parts 104 and 105. Additionally, the procedures in § 120.200 for reporting unlawful acts have been superseded by recent amendments to title 46, United States Code, chapter 35. For these reasons, the Coast Guard proposes to remove all of 33 CFR part 120. Finally, the Coast Guard also proposes to remove 33 CFR part 128 in its entirety. Not only would the sections requiring security plans and security officers be removed, we would also remove § 128.220, which requires the reporting of unlawful acts. We believe that the removal of this requirement will not diminish security at cruise ship terminals because other laws and regulations sufficiently cover the requirement in § 128.220. VI. Regulatory Analyses We developed this proposed rule after considering numerous statutes and executive orders related to rulemaking. Below we summarized our analysis based on 13 of these statutes or executive orders. E:\FR\FM\10DEP1.SGM 10DEP1 Federal Register / Vol. 79, No. 237 / Wednesday, December 10, 2014 / Proposed Rules A. Regulatory Planning and Review Executive Orders 12866 (‘‘Regulatory Planning and Review’’) and 13563 (‘‘Improving Regulation and Regulatory Review’’) direct agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This NPRM has been designated a ‘‘significant regulatory action,’’ although not economically significant, under section 3(f) of Executive Order 12866. Accordingly, the NPRM has been reviewed by the Office of Management 73265 and Budget. A full Regulatory Analysis (RA) is available in the docket where indicated under the ‘‘Public Participation and Request for Comments’’ section of this preamble. A summary of the RA follows: The following table summarizes the affected population, costs, and benefits of this proposed rule. A summary of costs and benefits by provision are provided later in this section. TABLE 1—SUMMARY OF AFFECTED POPULATION, COSTS AND BENEFITS Category Estimate Affected population ................................... Development of TSP ................................. 137 MTSA-regulated facilities; 23 cruise line companies. $145,471. Updating FSP ............................................ $9,092. Total Cost * ........................................ $154,563. Qualitative Benefits Terminal Screening Program .................... Prohibited Items List ................................. Greater clarity and efficiency due to removal of redundancy in regulations. The TSP improves industry accountability and provide for a more systematic approach to monitor facility procedures. Details those items that are prohibited from all cruise terminals and vessels. Provides a safer environment by prohibiting potentially dangerous items across the entire industry. mstockstill on DSK4VPTVN1PROD with PROPOSALS * Value is undiscounted. We expect the costs of this rulemaking are borne in the first year of implementation. See discussion below for more details. As previously discussed, this proposed rule would amend regulations on cruise ship terminal security. The proposed regulations would provide flexible requirements for the screening of persons intending to board a cruise ship, as well as their baggage and personal effects. In this rulemaking, we propose to issue and maintain a minimum requirement of Prohibited Items List of dangerous substances or devices (i.e. firearms & ammunition, flammable liquids and explosives, dangerous chemicals etc. . .), which are based on similar items currently prohibited by industry. We anticipate that the prohibited item list described in the preamble would be cost neutral to the industry. However, the Coast Guard is requesting public comment on this issue if anyone believes that this requirement would create a new economic burden to industry. We also propose to eliminate redundancies in the regulations that govern the security of cruise ship terminals. The proposed rule would allow owners and operators of cruise ships and cruise ship terminals the flexibility of choosing their own screening methods and equipment and establish security measures tailored to their own operations. This proposed rule would VerDate Sep<11>2014 16:37 Dec 09, 2014 Jkt 235001 incorporate current industry practices and performance standards. We found several provisions of the rulemaking to have no additional impact based on information from Coast Guard and industry security experts and site visits to cruise terminals. A summary of key provisions with and without additional costs follow. Key provisions without additional costs (current industry practice under existing MTSA regulations): • § 105 Subpart E Screening equipment standards; Æ 33 CFR 105.255 (a) and § 128.200 (a)(1) and § 128 (a)(2) currently require screening for dangerous substances or devices. As such, industry already screens baggage and persons. • § 105.530 Qualifications of screeners; and, Æ 33 CFR 105.210 details qualifications for facility personnel with security duties, which includes operation of security equipment and systems, and methods of physical screening of persons, personal affects, baggage, cargo and vessel stores. • § 105.535 Training of screeners. Æ 33 CFR 105.210 details qualifications for facility personnel with security duties, which includes operation of security equipment and systems, and methods of physical screening of persons, personal affects, baggage, cargo and vessel stores. PO 00000 Frm 00027 Fmt 4702 Sfmt 4702 Records for all training under § 105.210 are required to be kept per § 105.225 (b)(1). The purpose of including these requirements in the proposed regulatory action is to consolidate requirements for screeners in one place of the CFR and eliminate redundancies in cruise ship security regulations by eliminating the requirements in parts 120 and 128. We do not believe that these new items would add any additional costs, for the reasons described below. We note that several of the requirements in § 105.535 are already implicitly required by the general security training requirements in § 105.210. Specifically, §§ 105.535(b), (c), and (g), requiring that screening personnel be familiar with specific portions of the TSP, are already encompassed by the general requirement in 105.210(k), which requires security personnel to be familiar with relevant portions of the FSP). Also, § 105.535(f), which requires that screeners be familiar with additional screening requirements at increased MARSEC levels, is implicitly contained in the existing requirement in § 105.210(m). Other items in § 105.535 are not expected to increase costs because we believe they are already performed by screening personnel. We believe that all E:\FR\FM\10DEP1.SGM 10DEP1 73266 Federal Register / Vol. 79, No. 237 / Wednesday, December 10, 2014 / Proposed Rules whether cruise ship personnel are familiar with this latter matter, and whether cruise ship operators or terminal operators would incur any additional costs as a result of these proposed requirements. We estimate the proposed rule would affect 23 cruise line companies. Each cruise line maintains an FSP for each terminal that they utilize. Based on information from the Coast Guard Marine Information for Safety and Law screening personnel are currently trained in the specific screening methods and equipment used at the terminal (item (d)), and the terminalspecific response procedures when a dangerous item is found (item (e)). Furthermore, we believe it is a reasonable assumption that terminal screening personnel are familiar with item (a)—historic and current threats against the cruise ship industry. However, we do request comments on Enforcement (MISLE) database, we estimate that the proposed rule would require that FSPs at 137 MTSAregulated facilities be updated. The proposed rule would require these facilities to add TSP chapters to their existing FSPs. This rule would also require owners and operators of cruise ship terminals to add a Prohibited Items List to current FSPs. The following table provides a breakdown of additional costs by requirement. TABLE 2—SUMMARY OF FIRST-YEAR COSTS BY REQUIREMENT Costs (undiscounted; rounded) Requirement Terminal Screening Program (TSP) ................................... Update the FSP .................................................................. $145,471 9,092 Total ............................................................................. 154,563 We estimate the cost of this rule to industry to be about $154,563 in the first year. We expect the total costs of this rulemaking to be borne in the first year of implementation. Under MTSA, FSPs are required to undergo an annual audit, and it is during that audit that any revisions to the Prohibited Items List would be incorporated into the FSP.3 As such, we do not anticipate any recurring annual cost as a result of this proposal, as the annual cost to update Description Cost to create and add the TSP chapter to the FSPs. Cost to update the Prohibited Items List in FSPs. First-year undiscounted costs. the FSP is not expected to change due to the inclusion of the TSP and Prohibited Items List. Benefits The benefits of the rulemaking include codification of guidelines for qualifications for screeners, more transparent and consistent reporting of screening procedures across cruise lines, improved industry accountability regarding security procedures, and greater clarity and efficiency due to the removal of redundant regulations. We do not have data to estimate monetized benefits of this rulemaking. We present qualitative benefits and a break even analysis in the Regulatory Analysis available in the docket to demonstrate that we expect the benefits of the rulemaking to justify its costs. There are several qualitative benefits that can be attributed to the provisions in this proposal. Table 3 provides a brief summary of benefits of key provisions. TABLE 3—BENEFITS OF KEY PROVISIONS Key provision Benefit Terminal Screening Program .......... • Greater clarity and efficiency due to removal of redundancy in regulations. • The TSP improves industry accountability and provide for a more systematic approach to monitor facility procedures. • Details those items that are prohibited from all cruise terminals and vessels. • Provides a safer environment by prohibiting potentially dangerous items across the entire industry. Prohibited Items List ....................... mstockstill on DSK4VPTVN1PROD with PROPOSALS Break Even Analysis It is difficult to quantify the effectiveness of the provisions in this rulemaking and the related monetized benefits from averting or mitigating a TSI. Damages resulting from TSIs are a function of a variety of factors including, but not limited to, target type, terrorist attack mode, the number of fatalities and injuries, economic and environmental impacts, symbolic effects, and national security impacts. For regulatory analyses, the Coast Guard uses a value of a statistical life (VSL) of $9.1 million. A value of a statistical life of $9.1 million is 3 33 CFR 105.415 for FSP. on Treatment of the Economic Value of a Statistical Life in U.S., Department of 4 ‘‘Guidance VerDate Sep<11>2014 16:37 Dec 09, 2014 Jkt 235001 equivalent to a value of $9.10 as a measure of the public’s willingness to pay to reduce the risk of a fatality by one in a million, $0.91 to reduce a one in 10 million risk, and $0.091 to reduce a one in 100 million risk.4 As 8.9 million passengers embark onto cruise ships in the U.S. each year 5, very small reductions in risk can result in a fairly large aggregate willingness to pay for that risk reduction. A VSL of $9.1 million indicates that 8.9 million cruise ship passengers that embark from the U.S. would collectively be willing to pay approximately $8.1 million to reduce the risk of a fatality by one in 10 million (8.90 million passenger X $0.91). As the 8.9 million passengers estimate only includes the initial embarkation of a cruise and passengers often leave and return to the vessel during a cruise (passing through screening each time), the actual risk reduction to break even per screening may be lower. The annualized costs of the proposed rule are approximately $20,000 at 7 percent; thus, the proposed rule would have to prevent one fatality every 405 years for the rule to reach a break-even point where costs equal benefits ($9.1 million value of a Transportation Analysis’’ see http://www.dot.gov/ regulations/economic-value-used-in-analysis. 5 Source: Cruise Lines International Association, Inc. (CLIA), 2009 U.S. Economic Impact Study, Table ES–2, Number of U.S, Embarkations. http:// www.cruising.org/sites/default/files/pressroom/ 2009EconomicStudies/EconStudy_Exec_ Summary2009.pdf. PO 00000 Frm 00028 Fmt 4702 Sfmt 4702 E:\FR\FM\10DEP1.SGM 10DEP1 Federal Register / Vol. 79, No. 237 / Wednesday, December 10, 2014 / Proposed Rules statistical life/$20,000 average annual cost of rule = 405). The preliminary Regulatory Analysis in the docket provides additional details of the impacts of this rulemaking. B. Small Entities mstockstill on DSK4VPTVN1PROD with PROPOSALS Under the Regulatory Flexibility Act (5 U.S.C. 601–612), we have considered whether this proposed 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 fewer than 50,000 people. We expect entities affected by the rule would be classified under the North American Industry Classification System (NAICS) code subsector 483Water Transportation, which includes the following six-digit NAICS codes for cruise lines: 483112-Deep Sea Passenger transportation and 483114-Coastal and Great Lakes Passenger Transportation. According to the Small Business Administration’s (SBA) Table of Small Business Size Standards 6, a U.S. company with these NAICS codes and employing equal to or fewer than 500 employees is a small business. Additionally, cruise lines may fall under the NAICS code 561510-Travel Agencies, which have a small business size standard of equal to or less than $3,500,000 in annual revenue. For this proposed rule, we reviewed recent company size and ownership data from the Coast Guard MISLE database, and public business revenue and size data. We found that of the 23 entities that own or operate cruise ship terminals and would be affected by this proposed rulemaking, 11 are foreign entities. The remaining 12 entities exceed the SBA small business standards for small businesses. We did not find any small not-forprofit organizations that are independently owned and operated and are not dominant in their fields. We did not find any small governmental jurisdictions with populations of fewer than 50,000 people. Based on this analysis, we found that this rulemaking, 6 Source: http://www.sba.gov/size. SBA has established a Table of Small Business Size Standards, which is matched to the North American Industry Classification System (NAICS) industries. A size standard, which is usually stated in number of employees or average annual receipts (‘‘revenues’’), represents the largest size that a business (including its subsidiaries and affiliates) may be to remain classified as a small business for SBA and Federal contracting programs. VerDate Sep<11>2014 16:37 Dec 09, 2014 Jkt 235001 if promulgated, will not affect a substantial number of small entities. Therefore, the Coast Guard certifies under 5 U.S.C. 605(b) that this proposed rule, if promulgated, will not have a significant economic impact on a substantial number of U.S. small entities. If you think that a business, organization, or governmental jurisdiction qualifies as a small entity and that this proposed rule will have a significant economic impact on it, please submit a comment to the Docket Management Facility at the address under ADDRESSES. In your comment, explain why you think it qualifies as a small entity and how and to what degree this proposed rule will economically affect it. C. Assistance for Small Entities Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104–121), we want to assist small entities in understanding this proposed rule so that they can better evaluate its effects on them and participate in the rulemaking. If the proposed rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact LCDR Kevin McDonald at the telephone number or email address indicated under the FOR FURTHER INFORMATION CONTACT section of this notice. The Coast Guard will not retaliate against small entities that question or complain about this rule or any policy or action of the Coast Guard. Small businesses may send comments on the actions of Federal employees who enforce or otherwise determine compliance with Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency’s responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1– 888–REG–FAIR (1–888–734–3247). D. Collection of Information This proposed rule would call for a collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501–3520). As defined in 5 CFR 1320.3(c), ‘‘collection of information’’ comprises reporting, recordkeeping, monitoring, posting, labeling, and other similar actions. The title and description of the information collection, a description of those who must collect the information, and an estimate of the total annual burden PO 00000 Frm 00029 Fmt 4702 Sfmt 4702 73267 follow. The estimate covers the time for reviewing instructions, searching existing sources of data, gathering and maintaining the data needed, and completing and reviewing the collection. Under the provisions of the proposed rule, plan holders would submit amended security plans within 180 days of promulgation of the rule and update them annually. This requirement would be added to an existing collection with OMB control number 1625–0077. Title: Security Plans for Ports, Vessels, Facilities, Outer Continental Shelf Facilities and Other Security-Related Requirements. OMB Control Number: 1625–0077. Summary of The Collection of Information: Facilities that receive cruise ships would be required to update Facility Security Plans (FSPs) to contain additional information regarding the screening process at cruise terminals. Also, all cruise ship terminals that currently have a Facility Security Plan (FSP), would need to update said plan to include the list of prohibited items as detailed in this proposed rule. Need for Information: The information is necessary to show evidence that cruise lines are consistently providing a minimum acceptable screening process when boarding passengers. The information would improve existing and future FSPs for cruise terminals, since they currently do not separate this important information. Proposed Use of Information: The Coast Guard would use this information to ensure that facilities are taking the proper security precautions when loading cruise ships. Description of the Respondents: The respondents are FSP holders that receive cruise ships. Number of Respondents: The adjusted number of respondents is 13,825 for vessels, 3,270 for facilities, and 56 for Outer Continental Shelf (OCS) facilities. Of these 3,270 facilities, 137 that receive cruise ships would be required to modify their existing FSPs to account for the TSP chapter. Frequency of Response: Cruise lines would only need to write a TSP chapter once before inserting it into the associated FSP. This would be required during the first 6 months after publication of the final rule. Burden of Response: The estimated burden for cruise lines per TSP chapter would be approximately 16 hours. The estimated burden to update the FSP would be 1 hour. Estimate of Total Annual Burden: The estimated first-year burden for cruise lines is 16 hours per TSP chapter. Since E:\FR\FM\10DEP1.SGM 10DEP1 73268 Federal Register / Vol. 79, No. 237 / Wednesday, December 10, 2014 / Proposed Rules mstockstill on DSK4VPTVN1PROD with PROPOSALS there are currently 137 FSPs, the total burden on facilities would be 2,192 hours (137 TSPs × 16 hours per TSP) in the first year. For the 137 facilities, the total burden would be 137 hours (137 FSPs × 1 hour per VSP). The current burden listed in this collection of information is 1,108,043. The new burden, as a result of this proposed rulemaking, is 1,110,392 (1,108,043 + 2,192 + 137) in the first year only. All subsequent year burdens will be considered part of the annual review process for FSPs. As required by the Paperwork Reduction Act of 1995 (44 U.S.C. 3507(d)), we have submitted a copy of this proposed rule to the OMB for its review of the collection of information. We ask for public comment on the proposed collection of information to help us determine how useful the information is; whether it can help us perform our functions better; whether it is readily available elsewhere; how accurate our estimate of the burden of collection is; how valid our methods for determining burden are; how we can improve the quality, usefulness, and clarity of the information; and how we can minimize the burden of collection. If you submit comments on the collection of information, submit them both to OMB and to the Docket Management Facility where indicated under ADDRESSES, by the date under DATES. You need not respond to a collection of information unless it displays a currently valid control number from OMB. Before the requirements for this collection of information become effective, we will publish a notice in the Federal Register of OMB’s decision to approve, modify, or disapprove the proposed collection. E. Federalism A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect 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. We have analyzed this proposed rule under that Order and have determined that it has implications for federalism. A summary of the impact of federalism in this rule follows. This NPRM builds on the existing port security requirements found in 33 CFR part 105 by establishing detailed, flexible requirements for the screening of persons, baggage, and personal items intended for boarding a cruise ship. It also establishes terminal screening requirements for owners and operators VerDate Sep<11>2014 16:37 Dec 09, 2014 Jkt 235001 of cruise ship terminals, some of which are State entities. As implemented by the Coast Guard, the MTSA-established federal security requirements for regulated maritime facilities, including the terminal facilities serving the cruise ship industry, which are proposed for amendment by this Notice. These regulations were, in many cases, preemptive of State requirements. Where State requirements might conflict with the provisions of a federally approved security plan, they had the effect of impeding important federal purposes, including achieving uniformity. However, the Coast Guard also recognizes that States have an interest in these proposals to the extent they impose requirements on Stateoperated terminals or individual States may wish to develop stricter regulations for the federally regulated maritime facilities in their ports, so long as necessary security and the abovedescribed principles of federalism are not compromised. Sections 4 and 6 of Executive Order 13132 require that for any rules with preemptive effect, the Coast Guard shall provide elected officials of affected state and local governments and their representative national organizations the notice and opportunity for appropriate participation in any rulemaking proceedings, and to consult with such officials early in the rulemaking process. Therefore, we invite affected state and local governments and their representative national organizations to indicate their desire for participation and consultation in this rulemaking process by submitting comments to this notice. In accordance with Executive Order 13132, the Coast Guard will provide a federalism impact statement to document (1) the extent of the Coast Guard’s consultation with State and local officials that submit comments to this proposed rule, (2) a summary of the nature of any concerns raised by state or local governments and the Coast Guard’s position thereon, and (3) a statement of the extent to which the concerns of State and local officials have been met. F. Unfunded Mandates Reform Act The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531–1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 (adjusted for inflation) or more in any one year. Though this proposed rule would not result in such PO 00000 Frm 00030 Fmt 4702 Sfmt 4702 an expenditure, we do discuss the effects of this proposed rule elsewhere in this preamble. G. Taking of Private Property This proposed rule would not cause a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights. H. Civil Justice Reform This proposed 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. I. Protection of Children We have analyzed this proposed rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and would not create an environmental risk to health or risk to safety that might disproportionately affect children. J. Indian Tribal Governments This proposed rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it would not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes. K. Energy Effects We have analyzed this proposed 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. Though 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. L. Technical Standards The National Technology Transfer and Advancement Act (NTTAA) (15 U.S.C. 272 note) directs agencies to use voluntary consensus standards in their E:\FR\FM\10DEP1.SGM 10DEP1 Federal Register / Vol. 79, No. 237 / Wednesday, December 10, 2014 / Proposed Rules mstockstill on DSK4VPTVN1PROD with PROPOSALS regulatory activities unless the agency provides Congress, through the Office of Management and Budget, with an explanation of why using these standards would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (e.g., specifications of materials, performance, design, or operation; test methods; sampling procedures; and related management systems practices) that are developed or adopted by voluntary consensus standards bodies. This proposed rule does not add any voluntary consensus standards. Due to the nature of cruise ship security operations, performance-based standards allow an appropriate degree of flexibility that accommodates and is consistent with different terminal sizes and operations. This proposed rule would standardize screening activities for all persons, baggage, and personal effects at cruise ship terminals to ensure a consistent layer of security at terminals throughout the United States. Additionally, the Coast Guard consulted with the Transportation Security Administration (TSA) during the development of this proposed rule. We propose to use performance-based requirements in this rule. The Coast Guard reserves the right to require voluntary consensus standards at a later date, via a notice of availability or in conjunction with a subsequent rulemaking published in the Federal Register. If you disagree, please send a comment to the docket using one of the methods under ADDRESSES. In your comment, explain why you disagree with our analysis and/or identify voluntary consensus standards that might apply. M. Environment We have analyzed this proposed rule under Department of Homeland Security Management Directive 023–01 and Commandant Instruction M16475.lD, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321–4370f), and have made a preliminary determination that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. A preliminary environmental analysis checklist supporting this determination is available in the docket where indicated under the ‘‘Public Participation and Request for Comments’’ section of this preamble. This rule involves requirements for the screening of persons, baggage, and personal items intended for boarding a cruise ship and VerDate Sep<11>2014 16:37 Dec 09, 2014 Jkt 235001 falls under paragraphs 34(a), regulations which are editorial or procedural; 34(c), regulations concerning the training, qualifying, licensing, and disciplining or maritime personnel; and 34(d), regulations concerning the documentation, admeasurement, inspection, and equipment of vessels, of the Coast Guard’s NEPA Implementing Procedures and Policy for Considering Environmental Impacts, COMDTINST M16475.1D, and paragraph 6(b) of the Appendix to National Environmental Policy Act: Coast Guard Procedures for Categorical Exclusions (67 FR 48243, July 23, 2002). We seek any comments or information that may lead to the discovery of a significant environmental impact from this proposed rule. List of Subjects 33 CFR Part 101 Harbors, Maritime security, Reporting and recordkeeping requirements, Security measures, Vessels, Waterways. 33 CFR Part 104 Maritime security, Reporting and recordkeeping requirements, Security measures, Vessels. 33 CFR Part 105 Maritime security, Reporting and recordkeeping requirements, Security measures. 33 CFR Part 120 Passenger vessels, Reporting and recordkeeping requirements, Security measures, Terrorism. 33 CFR Part 128 Harbors, Reporting and recordkeeping requirements, Security measures, Terrorism. For the reasons listed in the preamble, the Coast Guard proposes to amend 33 CFR parts 101, 104, 105, 120, and 128 as follows: PART 101—MARITIME SECURITY: GENERAL 1. The authority citation for part 101 continues to read as follows: ■ Authority: 33 U.S.C. 1226, 1231; 46 U.S.C. Chapter 701; 50 U.S.C. 191, 192; Executive Order 12656, 3 CFR 1988 Comp., p. 585; 33 CFR 1.05–1, 6.04–11, 6.14, 6.16, and 6.19; Department of Homeland Security Delegation No. 0170.1. § 101.105 [Amended] 2. In § 101.105— b. Add, in alphabetical order, definitions for the terms ‘‘Carry-on item’’, ‘‘Checked baggage’’, ‘‘Cruise ship terminal’’, ‘‘Cruise ship voyage’’, ‘‘Disembark’’, ‘‘Embark’’, ‘‘Explosive ■ ■ PO 00000 Frm 00031 Fmt 4702 Sfmt 4702 73269 detection system (EDS)’’, ‘‘High seas’’, ‘‘Port of call’’, ‘‘Screener’’, and ‘‘Terminal screening program (TSP)’’ to read as follows: § 101.105 Definitions. * * * * * Carry-on item means an individual’s accessible property, including any personal effects that the individual intends to carry onto a vessel or facility subject to this subchapter and is therefore subject to screening. * * * * * Checked baggage means an individual’s personal property tendered by or on behalf of a passenger and accepted by a facility or vessel owner or operator. This baggage is accessible to the individual after boarding the vessel. * * * * * Cruise ship terminal means any portion of a facility that receives a cruise ship or its tenders to embark or disembark passengers or crew. Cruise ship voyage means a cruise ship’s entire course of travel, from the first port at which the vessel embarks passengers until its return to that port or another port where the majority of the passengers disembark and terminate their voyage. A cruise ship voyage may include one or more ports of call. * * * * * Disembark means any time that the crew or passengers leave the ship. * * * * * Embark means any time that crew or passengers board the ship, including reboarding at ports of call. * * * * * Explosives Detection System (EDS) means any system, including canines, automated device, or combination of devices that have the ability to detect explosive material. * * * * * High seas means the waters defined in § 2.32(d) of this chapter. * * * * * Port of call means a U.S. port where a cruise ship makes a scheduled or unscheduled stop in the course of its voyage and passengers are allowed to embark and disembark the vessel. * * * * * Screener means an individual who is trained and authorized to screen or inspect persons, baggage (including carry-on items), personal effects, and vehicles for the presence of dangerous substances and devices, and other items listed in the vessel or facility security plan. * * * * * Terminal Screening Program (TSP) means a written program developed for E:\FR\FM\10DEP1.SGM 10DEP1 73270 Federal Register / Vol. 79, No. 237 / Wednesday, December 10, 2014 / Proposed Rules a cruise ship terminal that documents methods used to screen persons, baggage, and carry-on items for the presence of dangerous substances and devices to ensure compliance with this part. * * * * * PART 104—MARITIME SECURITY: VESSELS 3. The authority citation for part 104 continues to read as follows: ■ Authority: 33 U.S.C. 1226, 1231; 46 U.S.C. Chapter 701; 50 U.S.C. 191; 33 CFR 1.05–1, 6.04–11, 6.14, 6.16, and 6.19; Department of Homeland Security Delegation No. 0170.1. 4. In § 104.295, revise paragraph (a)(1) to read as follows: ■ § 104.295 ships. Additional requirements—cruise (a) * * * (1) Screen all persons, baggage, and personal effects for dangerous substances and devices at the cruise ship terminal or, in the absence of a terminal, immediately prior to embarking a cruise ship, in accordance with the qualification, training, and equipment requirements of §§ 105.530, 105.535, and 105.545 of this chapter. * * * * * PART 105—MARITIME SECURITY: FACILITIES 5. The authority citation for part 105 continues to read as follows: ■ Authority: 33 U.S.C. 1226, 1231; 46 U.S.C. 70103; 50 U.S.C. 191; 33 CFR 1.05–1, 6.04– 11, 6.14, 6.16, and 6.19; Department of Homeland Security Delegation No. 0170.1. 6. In § 105.225, revise paragraph (b)(1) to read as follows: ■ § 105.225 Facility recordkeeping requirements. * * * * * (b) * * * (1) Training. For training under §§ 105.210 and 105.535, the date of each session, duration of session, a description of the training, and a list of attendees; * * * * * ■ 7. In § 105.290, revise paragraphs (a) and (b) to read as follows: mstockstill on DSK4VPTVN1PROD with PROPOSALS § 105.290 Additional requirements—cruise ship terminals. * * * * * (a) Screen all persons, baggage, and personal effects for dangerous substances and devices in accordance with the requirements in subpart E of this part; (b) Check the identification of all persons seeking to enter the facility in accordance with §§ 101.514, 101.515, VerDate Sep<11>2014 16:37 Dec 09, 2014 Jkt 235001 and 105.255 of this subchapter. Persons holding a Transportation Worker Identification Credential (TWIC) must be checked as set forth in this part. For persons not holding a TWIC, this check includes confirming the individual’s validity for boarding by examining passenger tickets, boarding passes, government identification or visitor badges, or work orders; * * * * * ■ 8. In § 105.405, revise paragraph (a)(17) and (a)(18), reserve paragraphs (a)(19) and (a)(20), and add paragraph (a)(21) to read as follows: § 105.405 Format and content of the Facility Security Plan (FSP). (a) * * * (17) Facility Security Assessment (FSA) report; (18) Facility Vulnerability and Security Measures Summary (Form CG– 6025) in Appendix A to part 105; and, (19) Reserved (20) Reserved (21) If applicable, cruise ship Terminal Screening Program (TSP) in accordance with subpart E of this part. ■ 9. Add new subpart E to part 105 to read as follows: Subpart E—Facility Security: Cruise Ship Terminals Sec. 105.500 General. 105.505 Terminal Screening Program (TSP). 105.510 Screening responsibilities of the owner or operator. 105.515 Prohibited Items List. 105.525 Terminal screening operations. 105.530 Qualifications of screeners. 105.535 Training requirements of screeners. 105.540 Screener participation in drills and exercises. 105.545 Screening equipment. 105.550 Alternate screening. Subpart E—Facility Security: Cruise Ship Terminals § 105.500 General. (a) Applicability. The owner or operator of a cruise ship terminal must comply with this subpart when receiving a cruise ship or tenders from cruise ships. (b) Purpose. This subpart establishes cruise ship terminal screening programs within the Facility Security Plans (FSPs) to ensure that prohibited items are not present within the secure areas that have been designated for screened persons, baggage, and personal effects, and are not brought onto cruise ships interfacing with the terminal. (c) Compliance dates. (1) No later than 180 days after the effective date of the final rule, cruise ship terminal owners or operators must submit, for each terminal, a Terminal Screening PO 00000 Frm 00032 Fmt 4702 Sfmt 4702 Program (TSP) that conforms with the requirements in § 105.505 of this subpart to the cognizant COTP for review and approval. (2) No later than 1 year after the effective date of the final rule, each cruise ship terminal owner or operator must operate in compliance with an approved TSP and this subpart. § 105.505 (TSP). Terminal Screening Program (a) General requirements. The owner or operator of a cruise ship terminal must ensure a Terminal Screening Program (TSP) is developed, added to the Facility Security Plan (FSP), and implemented. The TSP must: (1) Document all procedures that are employed to ensure all persons, baggage, and personal effects are screened at the cruise ship terminal prior to being allowed into a cruise ship terminal’s secure areas or onto a cruise ship; (2) Be written in English; and, (3) Be approved by the Coast Guard as part of the FSP in accordance with subpart D of this part. (b) Availability. Each cruise ship terminal Facility Security Officer must: (1) Maintain the TSP in the same or similar location as the FSP as described in § 105.400(d) of this part; (2) Have an accessible, complete copy of the TSP at the cruise ship terminal; (3) Have a copy of the TSP available for inspection upon request by the Coast Guard; (4) Maintain the TSP as sensitive security information (SSI) and protect it in accordance with 49 CFR part 1520; and (5) Make a copy of the current Prohibited Items List publicly available. The List and copies thereof are not SSI. (c) Content. The TSP must include the following: (1) A line diagram of the cruise ship terminal including: (i) The physical boundaries of the terminal; (ii) The location(s) where all persons intending to board a cruise ship, and all personal effects and baggage are screened; and, (iii) The point(s) in the terminal beyond which no unscreened person may pass; (2) The responsibilities of the owner or operator regarding the screening of persons, baggage, and personal effects; (3) The procedure to obtain and maintain the Prohibited Items List; (4) The procedures used to comply with the requirements of § 105.530 of this part regarding qualifications of screeners; E:\FR\FM\10DEP1.SGM 10DEP1 Federal Register / Vol. 79, No. 237 / Wednesday, December 10, 2014 / Proposed Rules (5) The procedures used to comply with the requirements of § 105.535 of this part regarding training of screeners; (6) The number of screeners needed at each location to ensure adequate screening; (7) A description of the equipment used to comply with the requirements of § 105.525 of this part regarding the screening of individuals, their personal effects, and baggage, including screening at increased MARSEC Levels, and the procedures for use of that equipment; (8) The operation, calibration, and maintenance of any and all screening equipment used in accordance with § 105.545 of this part; (9) The procedures used to comply with the requirements of § 105.550 of this part regarding the use of alternative screening methods and/or equipment, including procedures for passengers and crew with disabilities or medical conditions precluding certain screening methods; and (10) The procedures used when prohibited items are detected. (d) As a part of the FSP, the requirements in §§ 105.410 and 105.415 of this part governing submission, approval, amendment, and audit of a TSP apply. mstockstill on DSK4VPTVN1PROD with PROPOSALS § 105.510 Screening responsibilities of the owner or operator. In addition to the requirements of § 105.200 of this part, the owner or operator of a cruise ship terminal must ensure that: (a) A Terminal Screening Program (TSP) is developed in accordance with this subpart, and submitted to and approved by the cognizant Captain of the Port (COTP), as part of the Facility Security Plan (FSP), in accordance with this part; (b) Screening is conducted in accordance with this subpart and an approved TSP; (c) Specific screening responsibilities are documented in a Declaration of Security (DoS) in accordance with §§ 104.255 and 105.245 of this subchapter; (d) Procedures are established for reporting and handling prohibited items that are detected during the screening process; (e) All personal screening is conducted in a uniform, courteous, and efficient manner respecting personal rights to the maximum extent practicable; and (f) When the MARSEC Level is increased, additional screening measures are employed in accordance with an approved TSP. VerDate Sep<11>2014 16:37 Dec 09, 2014 Jkt 235001 § 105.515 Prohibited Items List. (a) The Coast Guard will issue and maintain a Prohibited Items List consisting of dangerous substances and devices for purposes of §§ 105.290(a) of this chapter. The list specifies those items that the Coast Guard prohibits all persons from bringing onboard any cruise ship through terminal screening operations regulated under 33 CFR part 105. (b) Procedures for screening persons, baggage and personal effects must include use of the Prohibited Items List which will be provided to screening personnel by the cruise ship terminal owner or operator. (c) The list must be present at each screening location during screening operations. Additionally, the list must be included as part of the Declaration of Security. (d) Facility personnel must report the discovery of a prohibited item introduced by violating security measures at a cruise ship terminal as a breach of security in accordance with § 101.305(b) of this subchapter. § 105.525 Terminal screening operations. (a) Passengers and personal effects. (1) Each cruise ship terminal must have at least one location to screen passengers and carry-on items prior to allowing such passengers and carry-on items into secure areas of the terminal designated for screened persons and carry-on items. (2) Screening locations must be adequately staffed and equipped to conduct screening operations in accordance with the approved Terminal Screening Program (TSP). (3) Facility personnel must check personal identification prior to allowing a person to proceed to a screening location, in accordance with § 105.290(b) of this part, which sets forth additional requirements for cruise ship terminals at all Maritime Security levels. (4) All screened passengers and their carry-on items must remain in secure areas of the terminal designated for screened persons and personal effects until boarding the cruise ship. Persons who leave a secure area must be rescreened. (b) Persons other than passengers. Crew members, visitors, vendors, and other persons who are not passengers, and their personal effects, must be screened either at screening locations where passengers are screened or at another location that is adequately staffed and equipped in accordance with this subpart and is specifically designated in an approved TSP. PO 00000 Frm 00033 Fmt 4702 Sfmt 4702 73271 (c) Checked baggage. (1) A cruise ship terminal that accepts baggage must have at least one location designated for the screening of checked baggage. (2) Screening personnel may only accept baggage from a person with— (i) A valid passenger ticket; (ii) Joining instructions; (iii) Work orders; or (iv) Authorization from the terminal or vessel owner or operator to handle baggage; (3) Screening personnel may only accept baggage in an area designated in an approved TSP and manned by terminal screening personnel; and, (4) Screening or security personnel must constantly control the checked baggage, in a secure area, from the time it is accepted at the terminal until it is onboard the cruise ship. (d) Unaccompanied baggage. (1) Facility personnel may accept unaccompanied baggage, as defined in § 101.105 of this subchapter, only if the Vessel Security Officer provides prior written approval for the unaccompanied baggage. (2) If facility personnel accept unaccompanied baggage at a cruise ship terminal, they must handle such baggage in accordance with paragraph (c) of this section. § 105.530 Qualifications of screeners. In addition to the requirements for facility personnel with security duties contained in § 105.210 of this part, screening personnel at cruise ship terminals must— (a) Have a combination of education and experience that the Facility Security Officer (FSO) has determined to be sufficient for the individual to perform the duties of the position; and (b) Be capable of using all screening methods and equipment needed to perform the duties of the position. § 105.535 Training requirements of screeners. In addition to the requirements for facility personnel with security duties in § 105.210 of this part, screening personnel at cruise ship terminals must demonstrate knowledge, understanding, and proficiency in the following areas as part of their security-related familiarization— (a) Historic and current threats against the cruise ship industry; (b) Relevant portions of the Terminal Screening Program (TSP) and Facility Security Plan; (c) The purpose and contents of the cruise ship terminal Prohibited Items List; (d) Specific instruction on screening methods and equipment used at the cruise ship terminal; E:\FR\FM\10DEP1.SGM 10DEP1 73272 Federal Register / Vol. 79, No. 237 / Wednesday, December 10, 2014 / Proposed Rules (e) Terminal-specific response procedures when a dangerous substance or device is detected; (f) Additional screening requirements at increased Maritime Security Levels; and, (g) Any additional topics specified in the facility’s approved TSP. § 105.540 Screener participation in drills and exercises. Screening personnel must participate in drills and exercises required under § 105.220 of this part. mstockstill on DSK4VPTVN1PROD with PROPOSALS § 105.545 Screening equipment. The following screening equipment may be used, provided it is specifically documented in an approved Terminal Screening Program (TSP). (a) Metal detection devices. (1) The owner or operator of a cruise ship terminal may use a metal detection device to screen persons, baggage, and personal effects. (2) Metal detection devices used at any cruise ship terminal must be operated, calibrated, and maintained in accordance with manufacturer’s instructions. (b) X-ray systems. The owner or operator of a cruise ship terminal may use an x-ray system for the screening and inspection of personal effects and baggage if all of the following requirements are satisfied— (1) The system meets the standards for cabinet x-ray systems used primarily for the inspection of baggage, found in 21 CFR 1020.40; (2) Familiarization training for screeners, in accordance with § 105.535 of this subpart, includes training in radiation safety and the efficient use of x-ray systems; (3) The system must meet the imaging requirements found in 49 CFR 1544.211; (4) The system must be operated, calibrated, and maintained in accordance with manufacturer’s instructions; (5) The x-ray system must fully comply with any defect notice or modification order issued for that system by the Food and Drug Administration (FDA), unless the FDA has advised that a defect or failure to comply does not create a significant risk of injury, including genetic injury, to any person; (6) The owner or operator must ensure that a sign is posted in a conspicuous place at the screening location where xray systems are used to inspect personal effects and where screeners accept baggage. These signs must— (i) Notify individuals that items are being screened by x-ray and advise them to remove all x-ray, scientific, and high- VerDate Sep<11>2014 16:37 Dec 09, 2014 Jkt 235001 speed film from their personal effects and baggage before screening; (ii) Advise individuals that they may request screening of their photographic equipment and film packages be done without exposure to an x-ray system; and (iii) Advise individuals to remove all photographic film from their personal effects before screening, if the x-ray system exposes any personal effects or baggage to more than one milliroentgen during the screening. (c) Explosives detection systems. The owner or operator of a cruise ship terminal may use an explosives detection system to screen baggage and personal effects for the presence of explosives if it meets the following requirements: (1) At locations where x-ray technology is used to inspect baggage or personal effects for explosives, the terminal owner or operator must post signs in accordance with paragraph (b)(6) of this section; and, (2) All explosives detection equipment used at a cruise ship terminal must be operated, calibrated, and maintained in accordance with manufacturer’s instructions. § 105.550 Alternative screening. If the owner or operator of a U.S. cruise ship terminal chooses to screen using equipment or methods other than those described in § 105.545 of this subpart, the equipment and methods must be described in detail in an approved Terminal Screening Program. PART 120—SECURITY OF PASSENGERS [REMOVED AND RESERVED] 10. Under the authority of 33 U.S.C. 1231, remove and reserve part 120. ■ PART 128—SECURITY OF PASSENGER TERMINALS [REMOVED AND RESERVED] 11. Under the authority of 33 U.S.C. 1231, remove and reserve part 128. ■ Dated: November 24, 2014. Paul F. Zukunft, Admiral, U.S. Coast Guard Commandant. [FR Doc. 2014–28845 Filed 12–9–14; 8:45 am] BILLING CODE 9110–04–P PO 00000 Frm 00034 Fmt 4702 Sfmt 4702 ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA–R09–OAR–2014–0480; FRL–9919–75– Region 9] Revisions to the California State Implementation Plan, Antelope Valley Air Quality Management District and South Coast Air Quality Management District Environmental Protection Agency (EPA). ACTION: Proposed rule. AGENCY: The Environmental Protection Agency (EPA) is proposing to approve revisions to the Antelope Valley Air Quality Management District (AVAQMD) and South Coast Air Quality Management District (SCAQMD) portions of the California State Implementation Plan (SIP). These revisions concern particulate matter (PM) emissions from fugitive dust and abrasive blasting. We are proposing to approve local rules to regulate these emission sources under the Clean Air Act (CAA or the Act). DATES: Any comments on this proposal must arrive by January 9, 2015. ADDRESSES: Submit comments, identified by docket number EPA–R09– OAR–2014–0480, by one of the following methods: 1. Federal eRulemaking Portal: www.regulations.gov. Follow the on-line instructions. 2. Email: steckel.andrew@epa.gov. 3. Mail or deliver: Andrew Steckel (Air-4), U.S. Environmental Protection Agency Region IX, 75 Hawthorne Street, San Francisco, CA 94105–3901. Instructions: All comments will be included in the public docket without change and may be made available online at www.regulations.gov, including any personal information provided, unless the comment includes Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Information that you consider CBI or otherwise protected should be clearly identified as such and should not be submitted through www.regulations.gov or email. www.regulations.gov is an ‘‘anonymous access’’ system, and EPA will not know your identity or contact information unless you provide it in the body of your comment. If you send email directly to EPA, your email address will be automatically captured and included as part of the public comment. If EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, EPA may not be SUMMARY: E:\FR\FM\10DEP1.SGM 10DEP1

Agencies

[Federal Register Volume 79, Number 237 (Wednesday, December 10, 2014)]
[Proposed Rules]
[Pages 73255-73272]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2014-28845]



[[Page 73255]]

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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Parts 101, 104, 105, 120, and 128

[Docket No. USCG-2006-23846]
RIN 1625-AB30


Consolidated Cruise Ship Security Regulations

AGENCY: Coast Guard, DHS.

ACTION: Notice of proposed rulemaking.

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SUMMARY: The Coast Guard proposes to amend its regulations on cruise 
ship terminal security. The proposed regulations would provide 
detailed, flexible requirements for the screening of all baggage, 
personal items, and persons--including passengers, crew, and visitors--
intended for carriage on a cruise ship. The proposed regulations would 
standardize security of cruise ship terminals and eliminate 
redundancies in the regulations that govern the security of cruise ship 
terminals.

DATES: Comments and related material must be received by the Coast 
Guard on or before March 10, 2015. Requests for public meetings must be 
received by the Coast Guard on or before January 9, 2015. Comments sent 
to the Office of Management and Budget (OMB) on collection of 
information must reach OMB on or before March 10, 2015.

ADDRESSES: You may submit comments identified by docket number USCG-
2006-23846 using any one of the following methods:
    (1) Federal eRulemaking Portal: http://www.regulations.gov.
    (2) Fax: 202-493-2251.
    (3) Mail: Docket Management Facility (M-30), U.S. Department of 
Transportation, West Building Ground Floor, Room W12-140, 1200 New 
Jersey Avenue SE., Washington, DC 20590-0001.
    (4) Hand delivery: Same as mail address above, between 9 a.m. and 5 
p.m., Monday through Friday, except Federal holidays. The telephone 
number is 202-366-9329.
    To avoid duplication, please use only one of these four methods. 
See the ``Public Participation and Request for Comments'' portion of 
the SUPPLEMENTARY INFORMATION section below for instructions on 
submitting comments.
    Collection of Information Comments: If you have comments on the 
collection of information discussed in section VI.D. of this Notice of 
Proposed Rulemaking (NPRM), you must also send comments to the Office 
of Information and Regulatory Affairs (OIRA), OMB. To ensure that your 
comments to OIRA are received on time, the preferred methods are by 
email to oira_submission@omb.eop.gov (include the docket number and 
``Attention: Desk Officer for Coast Guard, DHS'' in the subject line of 
the email) or fax at 202-395-6566. An alternate, though slower, method 
is by U.S. mail to the Office of Information and Regulatory Affairs, 
Office of Management and Budget, 725 17th Street NW., Washington, DC 
20503, ATTN: Desk Officer, U.S. Coast Guard.

FOR FURTHER INFORMATION CONTACT: If you have questions on this proposed 
rule, call or email Lieutenant Commander Kevin McDonald, Inspections 
and Compliance Directorate, Office of Port and Facility Compliance, 
Cargo and Facilities Division (CG-FAC-2), Coast Guard; telephone 202-
372-1168, email Kevin.J.McDonald2@uscg.mil. If you have questions on 
viewing or submitting material to the docket, call Ms. Cheryl Collins, 
Program Manager, Docket Operations, telephone 202-366-9826.

SUPPLEMENTARY INFORMATION:

Table of Contents

I. Public Participation and Request for Comments
    A. Submitting Comments
    B. Viewing Comments and Documents
    C. Privacy Act
    D. Public Meeting
II. Abbreviations
III. Basis and Purpose
IV. Background
V. Discussion of Proposed Rule
VI. Regulatory Analyses
    A. Regulatory Planning and Review
    B. Small Entities
    C. Assistance for Small Entities
    D. Collection of Information
    E. Federalism
    F. Unfunded Mandates Reform Act
    G. Taking of Private Property
    H. Civil Justice Reform
    I. Protection of Children
    J. Indian Tribal Governments
    K. Energy Effects
    L. Technical Standards
    M. Environment

I. Public Participation and Request for Comments

    We encourage you to participate in this rulemaking by submitting 
comments and related materials. All comments received will be posted, 
without change, to http://www.regulations.gov and will include any 
personal information you have provided.

A. Submitting Comments

    If you submit a comment, please include the docket number for this 
rulemaking, indicate the specific section of this document to which 
each comment applies, and provide a reason for each suggestion or 
recommendation. You may submit your comments and material online at 
http://www.regulations.gov, or by fax, mail, or hand delivery, but 
please use only one of these means. If you submit a comment online, it 
will be considered received by the Coast Guard when you successfully 
transmit the comment. If you fax, hand deliver, or mail your comment, 
it will be considered as having been received by the Coast Guard when 
it is received at the Docket Management Facility. We recommend that you 
include your name and a mailing address, an email address, or a 
telephone number in the body of your document so that we can contact 
you if we have questions regarding your submission.
    To submit your comment online, go to http://www.regulations.gov, 
type the docket number USCG-2006-23846 in the ``SEARCH'' box and click 
``SEARCH.'' Click on ``Submit a Comment'' on the line associated with 
this rulemaking.
    If you submit your comments by mail or hand delivery, submit them 
in an unbound format, no larger than 8\1/2\ by 11 inches, suitable for 
copying and electronic filing. If you submit comments by mail and would 
like to know that they reached the Facility, please enclose a stamped, 
self-addressed postcard or envelope. We will consider all comments and 
material received during the comment period and may change the rule 
based on your comments.

B. Viewing Comments and Documents

    To view comments, as well as documents mentioned in this preamble 
as being available in the docket, go to http://www.regulations.gov, 
type the docket number USCG-2006-23846 in the ``SEARCH'' box and click 
``SEARCH.'' Click on Open Docket Folder on the line associated with 
this rulemaking. You may also visit the Docket Management Facility in 
Room W12-140 on the ground floor of the Department of Transportation 
West Building, 1200 New Jersey Avenue SE., Washington, DC 20590, 
between 9 a.m. and 5 p.m., Monday through Friday, except Federal 
holidays.

C. Privacy Act

    Anyone can search the electronic form of all comments received into 
any

[[Page 73256]]

of our dockets by the name of the individual submitting the comment (or 
signing the comment, if submitted on behalf of an association, 
business, labor union, etc.). You may review a Privacy Act notice 
regarding our public dockets in the January 17, 2008, issue of the 
Federal Register (73 FR 3316).

D. Public Meeting

    We do not plan to hold a public meeting at this time. But you may 
submit a request for one to the docket using one of the methods 
specified under ADDRESSES. In your request, explain why you believe a 
public meeting would be beneficial. If we determine that one would aid 
this rulemaking, we will hold one at a time and place announced by a 
later notice in the Federal Register.

II. Abbreviations

APA Administrative Procedure Act
CFR Code of Federal Regulations
CLIA Cruise Lines International Association
COTP Captain of the Port
CVSSA Cruise Vessel Security and Safety Act of 2010
DHS Department of Homeland Security
DoS Declaration of Security
EDS Explosive Detection System
E.O. Executive Order
FSO Facility Security Officer
FSP Facility Security Plan
FR Federal Register
IMO International Maritime Organization
ISPS International Ship and Port Facility Security
ISSC International Ship Security Certificate
MARSEC Maritime Security
MISLE Marine Information for Safety and Law Enforcement
MSC/Circ. Maritime Safety Committee Circular
MTSA Maritime Transportation Security Act
NAICS North American Industry Classification System
NMSAC National Maritime Security Advisory Committee
NPRM Notice of Proposed Rulemaking
NVIC Navigation and Vessel Inspection Circular
OCS Outer Continental Shelf
OMB Office of Management and Budget
OIRA Office of Information and Regulatory Affairs
PAC Policy Advisory Council
PWSA Port and Waterways Safety Act
Sec.  Section symbol
SSI Sensitive Security Information
TSA Transportation Security Administration
TSI Transportation Security Incident
TSP Terminal Screening Program
TWIC Transportation Worker Identification Credential
U.S.C. United States Code
VSP Vessel Security Plan

III. Basis and Purpose

    The Coast Guard proposes to amend the maritime security 
regulations, found in title 33 of the Code of Federal Regulations (33 
CFR) subchapter H (parts 101 through 105), to require terminal 
screening programs (TSPs) in existing facility security plans (FSP) at 
cruise ship terminals within the United States and its territories. 
This proposed rule would standardize screening activities for all 
persons, baggage, and personal effects at cruise ship terminals while 
also allowing an appropriate degree of flexibility that accommodates 
and is consistent with different terminal sizes and operations. This 
flexible standardization ensures a consistent layer of security at 
terminals throughout the United States. This proposed rule builds upon 
existing facility security requirements in 33 CFR part 105, which 
implements the Maritime Transportation Security Act (MTSA), Pub. L. 
107-295, 116 Stat. 2064 (November 25, 2002), codified at 46 U.S.C. 
Chapter 701. The Coast Guard consulted with the Transportation Security 
Administration (TSA) during the development of this proposed rule.
    The Coast Guard also proposes to remove 33 CFR parts 120 and 128 
because provisions in those parts requiring security officers and 
security plans or programs for cruise ships and cruise ship terminals 
would be redundant with the provisions in 33 CFR subchapter H. Section 
120.220, concerning the reporting of unlawful acts, would also be 
removed because it is obsolete and existing law enforcement protocols 
require members of the Cruise Lines International Association (CLIA) to 
report incidents involving serious violations of U.S. law to the 
nearest Federal Bureau of Investigation field office as soon as 
possible. The Coast Guard will consider issuing additional regulations 
on this subject in a separate rulemaking pursuant to the Cruise Vessel 
Security and Safety Act of 2010 (CVSSA), Pub. L. 111-207 (July 27, 
2010) (See RIN 1625-AB91).
    This proposed rule does not address the screening of vessel stores, 
bunkers, or cargo. Similarly, it does not affect what items may be 
brought onto a cruise ship by the cruise ship operator, including items 
that passengers may check for secure storage with the cruise operator 
outside of their baggage or carry-ons. Requirements for security 
measures for the delivery of vessel stores, bunkers, and cargo exist 
and may be found in 33 CFR 104.275, 104.280, 105.265, and 105.270.
    This proposed rule also does not include regulations that may be 
required pursuant to the CVSSA. Although this rule and the CVSSA are 
both concerned with cruise ship security generally, this rule 
consolidates and updates pre-boarding screening requirements while the 
CVSSA prescribes requirements in other areas, such as cruise ship 
design, providing information to passengers, maintaining medications 
and medical staff on board, crime reporting, crew access to passenger 
staterooms, and crime scene preservation training. Delaying 
promulgation of this proposed rule while the regulations required by 
the CVSSA are developed, for the sole purpose of publishing all of 
these regulations together, would unnecessarily deprive the public of 
the benefit of improved cruise ship screening regulations during that 
period.

IV. Background

A. Development of 33 CFR Parts 120 and 128

    Following the terrorist attack on the cruise ship ACHILLE LAURO, 
the International Maritime Organization (IMO) published Maritime Safety 
Committee Circular (MSC/Circ.) 443 on September 26, 1986, which 
directed contracting governments to develop measures to ensure the 
security of passengers and crews aboard cruise ships and at cruise ship 
terminals. MSC/Circ. 443 also strongly recommended that governments 
ensure the development, implementation, and maintenance of ship 
security plans and facility security plans. MSC/Circ. 443 is available 
in the docket of this rulemaking, and can be obtained by following the 
instructions in the ``Viewing comments and documents'' section of this 
preamble.
    In recognition of IMO's guidance on the security of cruise ships 
and cruise ship terminals, the Coast Guard published regulations in 
1996 for the security of large passenger vessels (i.e., cruise ships) 
in 33 CFR part 120, and the security of passenger terminals (i.e., 
cruise ship terminals) in 33 CFR part 128 (61 FR 37647, July 18, 1996). 
These regulations include requirements for large passenger vessels and 
passenger terminals to submit vessel security plans and terminal 
security plans, respectively. Navigation and Vessel Inspection Circular 
(NVIC) 4-02 provides guidance for complying with these regulations. The 
Coast Guard has posted NVIC 4-02 in the docket of this rulemaking; see 
the ``Viewing comments and documents'' section of this preamble for 
more information.

B. Development of 33 CFR Subchapter H

    In response to the terrorist attacks on September 11, 2001, 
Congress enacted MTSA to increase maritime security. In Section 101 of 
MTSA, Congress found

[[Page 73257]]

that ``[c]ruise ships visiting foreign destinations embark from at 
least 16 [U.S.] ports,'' and that ``the cruise industry poses a special 
risk from a security perspective.'' \1\
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    \1\ 46 U.S.C.A. 70101, note, secs. 101(5) and (9).
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    In 2003, the Coast Guard implemented Section 102 of MTSA through a 
series of regulations for maritime security, located in 33 CFR 
subchapter H. These regulations require owners or operators of vessels, 
facilities, and Outer Continental Shelf (OCS) facilities to conduct 
security assessments of their respective vessels and facilities, create 
security plans specific to their needs, and submit the plans for Coast 
Guard approval by December 29, 2003. These plans must be updated at 
least every 5 years. The Coast Guard has required all affected vessels, 
facilities, and OCS facilities to operate in accordance with their 
plans since July 1, 2004.
    Included in 33 CFR subchapter H are specific security requirements 
for owners or operators of cruise ships and cruise ship terminals in 33 
CFR 104.295 and 105.290. The Coast Guard developed these requirements 
to further mitigate the elevated risk of cruise ship and cruise ship 
terminal involvement in a transportation security incident (TSI).
    Among the requirements in Sec. Sec.  104.295 and 105.290, owners or 
operators of cruise ships and cruise ship terminals must ensure that 
all persons, baggage, and personal effects are screened for dangerous 
substances and devices. The FSPs for the cruise ship terminals, 
approved under 33 CFR part 105, currently document the screening 
requirements in Sec. Sec.  105.215, 105.255, and 105.290, such as 
qualifications and training of screening personnel, screening 
equipment, and the recognition of dangerous substances and devices. 
However, these FSPs do not include a separate section specifically 
addressing these screening requirements; rather FSPs address them 
throughout the document and in a general fashion.
    This rulemaking would require cruise ship terminal FSPs to follow 
an organized format that includes more specific aspects of screening. 
In particular, the Coast Guard proposes to require owners and operators 
of U.S. cruise ship terminals to utilize a Prohibited Items List when 
conducting screening of all persons, baggage, and personal effects at 
the terminal. This list would reduce uncertainty in the industry and 
the public about what is prohibited and what is not, and would help 
cruise ship facilities better implement the screening requirement in 33 
CFR 105.290(a).
    The level of risk mitigated by the establishment of a Prohibited 
Items List for cruise ship terminals should align with the level of 
risk reduction required in MTSA. MTSA states that vessel security plans 
must ``identify, and ensure . . . the availability of security measures 
necessary to deter to the maximum extent practicable a transportation 
security incident or a substantial threat of such a security 
incident.'' Consequently, the goal of the Prohibited Items List is not 
to completely eliminate all possible risks, as complete risk reduction 
is not the risk standard set forth in MTSA. MTSA is clear that maritime 
transportation security plans must be written to prevent TSIs (such as 
the loss of the vessel or other mass casualty scenarios).
    While we recognize that cruise ship operators are also required to 
ensure screening for dangerous substances and devices under 33 CFR 
104.295(a), the Coast Guard is not proposing to require them to modify 
VSPs in a manner similar to cruise ship terminal FSPs, for reasons of 
cost-effectiveness and redundancy as described below. However, we do 
believe that the publication of the Prohibited Items List will provide 
helpful guidance to cruise ship operators in complying with 33 CFR 
104.295(a).
Current Status of 33 CFR Parts 120 and 128
    The implementation of MTSA and 33 CFR subchapter H was one step in 
a larger effort to revise the requirements in 33 CFR parts 120 and 128. 
On January 8, 2004, the Coast Guard MTSA/International Ship and Port 
Facility Security (ISPS) Policy Advisory Council (PAC), whose members 
are all Coast Guard personnel, issued PAC Decision 04-03 to provide 
guidance on 33 CFR subchapter H. PAC Decision 04-03 states that ``33 
CFR parts 120 and 128 and NVIC 4-02 will remain in effect until July 1, 
2004.'' Since that date, cruise ships and cruise ship terminals have 
operated in accordance with 33 CFR subchapter H, not 33 CFR part 120 or 
128. This decision is available in the docket of this rulemaking, which 
can be accessed by following the instructions in the ``Viewing comments 
and documents'' section of this preamble, and on the Coast Guard 
Homeport Web site at http://homeport.uscg.mil.
Development of Regulations by the Transportation Security 
Administration
    In 2002, the TSA promulgated 49 CFR subchapter C, regarding the 
security of civil aviation after the September 11, 2001, terrorist 
attacks. Screening persons and property at airports is an integral 
element within these aviation security regulations. The TSA screening 
requirements for persons and property intending to board commercial 
aircraft include rigorous standards for screening personnel training 
and qualifications, screening equipment, staffing of screening 
stations, and screening operations at airports. The TSA enforces a 
Prohibited Items List and the Permitted Items List nationwide, 
regardless of the airline used or airport visited within the United 
States.
    To complement 49 CFR subchapter C, the TSA published and updates 
the Prohibited Items and Permitted Items Lists for air travel. The 
first version of the lists issued to implement 49 CFR 1540.111 appeared 
in the Federal Register on February 14, 2003 (68 FR 7444). The lists, 
and several subsequent updates, interpreted the meaning of the terms 
``weapons, explosives, and incendiaries'' for purposes of 49 CFR 
1540.111(a), and were published under authority in 5 U.S.C. 553(b) as 
interpretive rules without notice and comment. We drafted this proposed 
rule after reviewing TSA's aircraft screening requirements.
    The Coast Guard's proposed Prohibited Items List is closely aligned 
with TSA's Prohibited Items List for aviation. The two lists are not 
exactly the same due to the distinctly different risk profiles of 
cruise ships and aircraft: (1) Aircraft can be used as a missile. A 
cruise ship, however, cannot be used as a missile and, at worst, can be 
grounded. (2) There are inherent limits on vulnerability reduction of 
prohibiting items that may already be on board the cruise ship (e.g., 
items such as steak knives or ice axes could be used to create a 
Transportation Security Incident, but they are readily available to 
cruise ship passengers for recreational and other purposes and thus it 
would be ineffective to prohibit them upon boarding).
    There are additional differences between cruise ships and aircraft 
which support the differences between the two Prohibited Items Lists: 
(1) The increased robustness of cruise ship design to resist an attack 
as compared to an aircraft and (2) The larger presence of security 
personnel on board cruise ships trained to combat a potential TSI.
Advisory Committee Participation
    In addition to using the current TSA regulations as guidelines when 
drafting this proposal, we also drew upon the expertise of the National 
Maritime Security Advisory Committee (NMSAC). This committee is 
composed of

[[Page 73258]]

representatives from a cross-section of maritime industries and port 
and waterway stakeholders including, but not limited to, shippers, 
carriers, port authorities, and facility operators. The NMSAC advises, 
consults with, and makes recommendations to the Secretary of Homeland 
Security via the Commandant of the Coast Guard on matters affecting 
maritime security.
    We presented the NMSAC with the following questions relating to 
cruise ship and cruise ship terminal security screening measures, and 
asked for comments and recommendations. The NMSAC answered with 
industry-specific comments and recommendations, and addressed other 
pertinent issues as well, including screener training and reporting 
unlawful acts at sea. We summarized their comments and provide our 
responses below. The task statement and the full NMSAC recommendations 
may be found in the docket for this rulemaking, which can be accessed 
by following the instructions in the ``Viewing comments and documents'' 
section of this preamble.
Prohibited Items List
1. Would a national standardized Prohibited Items List be useful?
    Comment: NMSAC believes that publishing a list of Federally 
Prohibited Items will be beneficial to cruise ship operators and will 
serve to give guidance to passengers and potential passengers as to the 
items that may not be brought on board a cruise ship, as well as the 
items that may be brought aboard under controlled circumstances.
    Response: We agree that an important use for a Federally Prohibited 
Items List is to advise passengers of items they cannot bring into a 
cruise ship terminal or onto a cruise ship.
    Comment: NMSAC states that it must also be recognized by the 
Federal Government and all parties concerned that cruise ships differ 
from other types of passenger vessels, passenger vessel operations, and 
other transportation industries, especially air travel. This difference 
is a result of the size and robust construction of the ship, crewing, 
and the presence of trained security crew onboard.
    Response: We have adopted some screening measures from the airline 
industry because screening processes and technology have commonalities 
in both industries. However, the Coast Guard recognizes the difference 
between cruise ships and other transportation industries. We recognize 
that other types of passenger vehicles, such as aircraft, are primarily 
used for transportation from one point to another, and that passengers 
are usually on board for a relatively short duration. Cruise ships, on 
the other hand, may carry thousands of passengers for up to several 
weeks. Additionally, cruise ships have a very different set of 
vulnerabilities than aircraft due to their heavier nature and 
significant numbers of trained security personnel, which makes certain 
items that present a threat to aircraft low or no risk in the context 
of a cruise ship concerning the potential for a TSI. Therefore, we 
propose tailoring our screening regulations and establishing a 
Prohibited Items List for use by the cruise ship industry.
2. What entity is the most appropriate generator of such a list?
    Comment: NMSAC believes and recommends that the Coast Guard is the 
correct agency to lead in the development and publication of this 
listing; however, TSA should be consulted due to their expertise in 
screening systems.
    Response: We agree with NMSAC that the Coast Guard should develop 
and maintain a dangerous substances and devices list. We have and will 
continue to work with TSA throughout this rulemaking and in the future 
to ensure the list is current and updated to address evolving threats 
as necessary.
3. What items should be on the list?
    Comment: NMSAC recommends that a Federally Prohibited Items List 
should recognize multiple categories, including--
     Prohibited items;
     Items permitted with special controls; and
     Items permitted for medical use only.
    Response: We anticipate publishing a list of dangerous substances 
and devices for screening persons, baggage, and personal items at 
cruise ship terminals in the United States and its territories. We 
would retain the ability to add to or modify the list as needed. 
However, we recognize the need to distinguish between items prohibited 
at all times from items that would be permitted under specified 
conditions onboard a particular vessel and as documented in the Vessel 
Security Plan, and thus would not propose to include in regulation 
specific instructions relating to items allowed conditionally. Instead, 
control of such items that are dangerous in some situations or 
quantities would be left to the discretion of the cruise ship 
operators.
    Comment: NMSAC states that cruise ship passengers as well as crew 
have access to their baggage and are regularly involved in activities 
and events associated with a lengthy vacation or special celebration. 
In contrast, passengers and crew aboard an aircraft do not have access 
to checked baggage. Because of the difference in access, some items, 
such as guns, are permitted to be carried in checked baggage onboard an 
aircraft, but such items would not be permitted onboard a cruise ship 
at all.
    Response: We agree that a list of items prohibited on a cruise ship 
may be different from those prohibited on aircraft. The most obvious 
difference is that there will be no distinction between checked baggage 
or carry-on items, since passengers and crew will have access to their 
personal items once they are onboard.
    Comment: Some items, such as a steak knife, which would be 
prohibited onboard a passenger aircraft, are not only available onboard 
a cruise ship but will also be delivered to a person's room with a 
meal. Other such items such as aerosols sold in the ships stores, and 
fire axes as part of the ships safety equipment, are also normally 
available onboard ship. Other items which are commonly permitted 
onboard a cruise ship may include: A diver's spear gun or knife; a 
chef's personal cutlery; SCUBA tanks; firearm replicas and indoor 
pyrotechnics used for stage productions; compressed gas cylinders for 
personal use or ship repair; and tools needed for specialized ship 
repair or maintenance. All these are part of the everyday activities or 
life on board a ship that may be away from port for days at a time. 
This listing is certainly not exhaustive. Each of these items is 
important to the cruise experience and must be permitted onboard with 
proper controls over access and use.
    Response: We agree that it would be unproductive to prohibit an 
item that can be purchased in a ship store or that is available from 
room service (e.g. a steak knife). However, cruise lines may choose to 
prohibit passengers from carrying knives or axes onboard without prior 
approval and under controlled procedures.
    We also agree that when determining the items that will and will 
not be allowed onboard a cruise ship or into a cruise ship terminal, 
consideration must be given to those items that passengers would 
reasonably be expected to need in order to enjoy the cruise. Items 
including, but not limited to, dive knives, spear guns, and SCUBA tanks 
may fit into this category and, as suggested by NMSAC, may be 
acceptable if controlled by ship security personnel until the 
passengers need them.

[[Page 73259]]

    Comment: Generally NMSAC believes that screening, and any list of 
prohibited and controlled items, should only apply to personal baggage 
and carry-on items, not to ship stores. Items that are part of ship 
stores and for the ship's operations and guest programs should not be 
considered to be subject to this listing. For example, gasoline may be 
carried as part of the ship's stores for use in ship carried jet skis.
    Response: We agree with NMSAC's recommendations that, for the 
purposes of this rulemaking, the dangerous substances and devices list 
should not apply to ship stores. Ship stores are outside the scope of 
this rulemaking.
    Comment: In the event a listed item is discovered on board, NMSAC 
recommends that the response be measured and based upon the nature of 
the item discovered and the actual threat that the item presents. Nor 
should it be considered as a listing of items which would automatically 
constitute a violation or breach of security if one of the items is 
discovered onboard.
    NMSAC additionally recommends that a clear statement be included to 
the effect that the response to a non-detectable or controlled item 
discovered on board should be based upon the nature of the item and the 
actual threat presented and that discovery of such an item would not 
necessarily constitute a violation or breach of security.
    Response: We agree that the appropriate response to the discovery 
of a prohibited item onboard should be measured, and based upon the 
nature of the item and the actual threat it presents. However, a listed 
prohibited item that has passed through security screening and is 
discovered onboard would constitute a breach of security as defined in 
33 CFR 101.105, since a security measure has been circumvented, eluded, 
or violated.
    Although a breach of security is a violation, the Coast Guard would 
not necessarily have to take enforcement action. The Coast Guard would 
examine each event based on the circumstances and details of the 
breach, the actual threat posed by the item or items, and remedial 
action taken after the breach is detected. The ultimate goal of the 
regulation is to provide security to cruise ship passengers, crews, the 
cruise ship, and the cruise ship terminal.
Screening Equipment
1. What is the possibility of standardizing screening methods, similar 
to the methods employed by TSA at airports?
    Comment: NMSAC notes that the task statement from the Coast Guard 
states: ``Some cruise ship terminals use metal detectors, x-ray 
systems, explosive detection systems, and/or canines for screening and 
that their use and operation is not uniform across the U.S.'' NMSAC 
questions the Coast Guard's statement that only some cruise ship 
terminals contain appropriate detection equipment, and that the use of 
this equipment is not uniform across the United States. The Coast Guard 
regulatory requirements contained in 33 CFR parts 120 and 128 require 
both cruise ships and cruise ship passenger terminals to have in place 
effective security plans for three levels of security, which include 
requirements for screening of baggage, ship stores, carry-on items, and 
persons. These regulations and accompanying guidance implemented by 
approved plans would be expected to provide for this unity of purpose 
and application of performance standards contained in the regulations.
    Response: During visits at several cruise ship terminals, cruise 
ship embarkation ports, and ports of call, the Coast Guard witnessed 
various types of screening activities. Most terminals use metal 
detectors and x-ray systems. Some terminals use canines and other 
terminals, normally ports of call, screen by hand.
    Cruise ships and cruise ship terminals have been subject to 33 CFR 
parts 120 and 128, and after July 1, 2004, to the International Ship 
and Port Facility Security Code and 33 CFR subchapter H. To minimize 
potential risk associated with cruise ships and cruise ship terminals, 
we propose implementing more detailed regulations. We would retain the 
spirit of the performance-based standards in 33 CFR subchapter H.
2. Should standards be developed for the screening equipment used at 
U.S. cruise ship terminals and ports of call?
    Comment: In seeking to ensure consistency throughout the United 
States regarding screening activities at cruise ship terminals, NMSAC 
notes that flexibility is an absolute necessity in the cruise ship 
industry. NMSAC agrees with performance standards for training or 
certification, and for minimum consistency of equipment. However, what 
equipment is employed and how it fits into an effective system for 
assuring security should remain flexible.
    Response: We agree that flexibility is necessary, and note that 
consistency of screening equipment would mean consistency in the 
performance standards of equipment.
    Comment: NMSAC recommends that specificity of performance standards 
or goals could be developed for detection equipment; to specify exactly 
which equipment should be used would be counterproductive to 
development of new technology. Standardization of application would 
also prevent the flexibility to meet varying operational requirements, 
varying threats that may be encountered by different size ships at 
different ports. Standardization would also prevent the flexibility to 
meet varying operational requirements, and varying threats that may be 
encountered.
    Response: We agree. The equipment would need to be adequate to meet 
specific performance standards. The Coast Guard intends to allow each 
owner or operator of a cruise ship facility to specify the type of 
screening equipment used to detect prohibited items.
    Comment: NMSAC notes that the Department of Homeland Security (DHS) 
has established a Transportation Screening Capability Working Group. 
The focus of the group is to identify screening capabilities and needs. 
As such, the work of this group appears to be of interest to NMSAC 
particularly in regard to this current tasking and interface between 
the Working Group and NMSAC is recommended. At a minimum, DHS 
representatives should be invited to brief NMSAC with regards to the 
work, conclusions, and recommendations of the Working Group.
    Response: We agree that it may be necessary to invite DHS 
representatives to discuss current screening initiatives.
    Comment: NMSAC recommends that performance standards for detection 
equipment be developed in conjunction with the above mentioned Working 
Group, and that a listing of items to be detected by these screening 
systems be developed.
    Response: We will continue to work with TSA and DHS representatives 
regarding equipment performance standards.
    Comment: NMSAC also states that, while an item may be prohibited, 
this does not mean that technology exists for detecting such items 
during the screening process. Screening should not be expected for 
items that cannot be detected. NMSAC notes that a prohibited items 
listing should not be indiscriminately mistaken to be the exact listing 
of items that must be detected by current screening technology or 
screening personnel. They state that it is a well-known and established 
fact that 100 percent screening does not equate to 100 percent 
detection and a number of the items potentially listed are not 
detectable by

[[Page 73260]]

current screening technology or processes.
    Response: We recognize that requiring screening of all persons, 
baggage, and personal items does not realistically equate to 100 
percent detection of prohibited items. Screening should ensure that 
there are no dangerous substances or devices present on cruise ships or 
in terminals. The Coast Guard would place items on a dangerous 
substances and devices list that we determine to pose a real danger to 
security. Detection measures should be employed to ensure, to the 
greatest practicable extent, that such dangers are not present. If a 
listed item is found onboard, the owners or operators of cruise ships 
or terminals should examine their screening processes to determine the 
reason they did not detect the item during the screening process. As 
part of this examination, owners or operators of cruise ships and 
terminals should review security measures, such as qualification and 
training of screening personnel as well as the technology they use. It 
is not the intent of the proposed rule to expect or demand more than is 
possible or achievable given available technology. The goal should be 
continuous process improvement.
    Comment: NMSAC is aware that current screening capabilities do not 
readily detect or identify certain items that may currently be 
prohibited onboard either an aircraft in carry-on baggage or otherwise 
or onboard ships. Accordingly, electronic screening should not include 
items that cannot be detected by current capabilities and other 
screening should not be required for these items unless the threat of 
introduction is so high (Maritime Security Level III) that alternate 
means of screening is necessary.
    Response: We agree that the technology required to screen for 
certain prohibited items, especially nuclear, biological, and chemical 
agents, either does not exist or may be excessively expensive. We 
expect screening to be conducted at cruise ships and cruise ship 
terminals using several methods and technologies already employed for 
screening at airports, such as metal detectors and x-ray machines. 
Although a dangerous substances and devices list may include items for 
which screening technology does not exist, we expect the cruise ships' 
or terminals' screening personnel to attempt to detect these materials 
using screening methods other than electronic equipment. For example, 
during an escalated Maritime Security (MARSEC) Level 2 or 3, we would 
require alternate means of screening that may include random hand 
searches or other methods appropriate to the threat. MARSEC Levels 
advise the maritime community and the public of the level of risk to 
the maritime elements of the national transportation system. There are 
only three MARSEC levels. MARSEC Level 1 is the level for which minimum 
appropriate security measures shall be maintained at all times. Under 
33 CFR 101.200(b), unless otherwise directed, each port, vessel, and 
facility must operate at MARSEC Level 1.
3. What standards should apply if canines were to be used to screen for 
the presence of explosives at U.S. cruise ship terminals?
    Comment: NMSAC recommends that any need for and use of canines for 
screening should be clearly written into the security plan that is 
required by 33 CFR part 105. Because each terminal operation, passenger 
ship, threat information, and security operation is different, a ``one 
size fits all'' regulation to meet the ``when'' and ``how'' of canine 
use will not work. Instead, this can be broken into three issues:
    a. When should canines be utilized for screening?
    b. How should canines be used for screening?
c. What should be the training and certification requirements for the 
canine and the handler?
    With regards to item c. above, NMSAC acknowledges that cruise ship 
industry canine security representatives have been meeting with USCG 
and DHS officials to discuss appropriate regulatory requirements for 
the certification of both dog and handlers. NMSAC does not possess the 
expertise to overtake these discussions and therefore declines to offer 
recommendations in this regard. As the end users of canine screening or 
search capabilities, NMSAC members would be interested in receiving a 
briefing of this regulatory development project.
    Response: We agree, and do not propose mandating the use of canines 
for normal screening operations. We do recognize the need to address 
required standards in the event that terminals or cruise ships 
voluntarily use canines to screen for explosives. The Coast Guard is 
engaged in separate, ongoing projects to address the use of canines at 
maritime facilities, including cruise ship and other passenger 
facilities.

C. Miscellaneous

1. Training of Screening Personnel
    Comment: NMSAC believes that the development of national standards 
for training screening personnel is appropriate. NMSAC recommends that 
such standards should be developed in cooperation with the maritime 
industry and appropriate professional stake holders, and should address 
the basic knowledge, understanding, and proficiency to be demonstrated 
by candidates to receive certification. Given the difference in cruise 
ship operations, as well as the cruise ships themselves and the ports 
they visit, consideration should be given to different levels of 
certification.
    Response: We agree that a need exists for national standards for 
training screening personnel, and that these standards should be 
developed in cooperation with the maritime industry and appropriate 
professional stake holders. The Coast Guard proposes adding a new Sec.  
105.535 to set forth training requirements of screeners, who must 
demonstrate knowledge, understanding, and proficiency in various 
security related areas as part of their security-related 
familiarization.
2. Unlawful Acts Reporting Requirement (33 CFR 120.220)
    Comment: NMSAC recommends that the consolidation of 33 CFR 120 & 
128 into 33 CFR Subchapter H be clarified so that unlawful acts 
involving felonies or other serious crime are promptly reported to the 
agency that has the proper jurisdiction for investigation and 
prosecution. A variety of governmental entities, both foreign and 
domestic, exercise law enforcement authority over each ship, depending 
upon where it is located, where it has come from and where it may be 
going to. Alleged criminal acts involving U.S. citizens are already 
reported to the appropriate law enforcement agencies.
    Response: Existing law enforcement protocols contain standards for 
the types of crimes that owners or operators of cruise ships must 
report as well as the form and the timeliness of that reporting. Under 
those protocols, members of the Cruise Lines International Association 
(CLIA) are already obligated to report incidents involving serious 
violations of U.S. law, which include but are not limited to homicide, 
suspicious death, assault with serious bodily injury, and sexual 
assaults to the nearest Federal Bureau of Investigation field office as 
soon as possible. The Coast Guard will consider issuing additional 
regulations on this subject in a separate rulemaking pursuant to the 
Cruise Vessel Security and Safety Act of 2010 (CVSSA.), Pub. L. 111-207 
(July 27, 2010).

[[Page 73261]]

3. Definition of Cruise Ship
    Comment: NMSAC stated that they have not defined ``cruise ship''.
    Response: We will use the definition for cruise ship currently in 
33 CFR 101.105.

V. Discussion of Proposed Rule

    In the paragraphs below, we explain the origins and rationale for 
the proposed changes in this NPRM. We organized the discussion 
according to the section number in which each change would appear.

Sec.  101.105 Definitions

    The Coast Guard proposes amending Sec.  101.105 by adding new 
definitions for carry-on item, checked baggage, cruise ship terminal, 
cruise ship voyage, disembark, embark, explosive detection system 
(EDS), high seas, port of call, screener, and TSP.

Sec.  104.295 Additional Requirements--Cruise Ships

    Currently, the Coast Guard requires cruise ship owners or operators 
to ensure that screening is performed for all persons, baggage, and 
personal effects. This requirement is usually fulfilled in coordination 
with the U.S. cruise ship terminals, with which the cruise ships 
interface. We propose to add language in this section requiring cruise 
ship owners or operators to ensure screening is performed in accordance 
with proposed subpart E of part 105. Cruise ship owners or operators 
would continue to ensure that screening is performed, and we anticipate 
that they would continue to coordinate screening with the cruise ship 
terminals.
    While cruise ship terminals would be required to incorporate the 
Prohibited Items List into their FSPs, we are not proposing to require 
cruise ship operators to include the list in their VSPs. We believe 
that such a proposal would be redundant on two levels. First, 
passengers and screeners would be aware of the Prohibited Items List 
because it is already required to be available at all screening 
locations under 33 CFR 105.515(c). Second, nearly all cruise ships 
operate under an International Ship Security Certificate (ISSC), which 
details procedures for screening dangerous substances and devices. 
Additionally, 33 CFR 104.295(a) would require that when passengers 
embark at a point that is not at a terminal, cruise ship screeners must 
meet the training requirements of 33 CFR 105.535, which requires that 
they are familiar with the contents of the Prohibited Items List. For 
these reasons, we believe that the additional paperwork burden 
requiring the incorporation of the Prohibited Items List into the 
cruise ships' VSP would be unnecessary.

Sec.  105.225 Facility Record-Keeping Requirements

    Within this section, we propose to add language referencing 
proposed Sec.  105.535 for the safekeeping of screener training 
records. Currently, the Facility Security Officer (FSO) is responsible 
for recordkeeping. As proposed, the FSO's recordkeeping 
responsibilities would be extended to include screener training 
records. See the discussion of Sec.  105.535 in this preamble for 
additional information on changes to that section.

Sec.  105.290 Additional Requirements--Cruise Ship Terminals

    We propose to amend Sec.  105.290 by revising paragraph (b) and 
adding language to paragraph (a) referencing proposed subpart E. The 
Coast Guard would require owners or operators of cruise ship terminals 
to conduct screening in accordance with subpart E, and identification 
requirements would be clarified.

Sec.  105.405 Format and Content of the Facility Security Plan (FSP)

    The Coast Guard proposes amending Sec.  105.405 by adding new 
paragraph (a)(21). This new paragraph would require that owners or 
operators of cruise ship terminals ensure that the FSPs include a TSP 
that is submitted to the Coast Guard for approval. See the discussion 
of Sec.  105.505 in this preamble for additional information on the 
TSP. The Coast Guard is also reserving paragraphs (a)(19) and (a)(20) 
as it is considering proposing additional amendments to Sec.  105.405 
in separate rulemakings.

Subpart E--Facility Security: Cruise Ship Terminals

    The Coast Guard proposes to add a new subpart to part 105 
specifically related to the screening of all persons, baggage, and 
carry-on items performed at cruise ship terminals. This new subpart 
would be titled Facility Security: Cruise Ship Terminals. Below, we 
discuss the proposed sections to be included in this subpart.

Sec.  105.500 General

    This proposed section encompasses the applicability, purpose, and 
compliance dates for subpart E. First, subpart E would apply to cruise 
ship terminals only. For this NPRM, we consider any U.S. facility that 
receives cruise ships as they are defined in 33 CFR 101.105, or tenders 
from cruise ships, to embark or disembark passengers or crew as being 
cruise ship terminals. These include facilities where the majority of 
passengers embark with checked baggage, as well as facilities where 
passengers may visit for a limited time and then re-board the cruise 
ship. As described previously in the discussion of proposed changes in 
Sec.  104.295 of this preamble, the Coast Guard would require cruise 
ship owners or operators to coordinate screening operations with the 
terminal owners or operators.
    The purpose of subpart E is, as stated above, to ensure security at 
cruise ship terminals. Specifically, subpart E is included in this 
proposed rule to give terminal owners or operators more detailed 
requirements to assist development of their screening regimes. However, 
based on our analysis of current cruise ship terminal screening 
procedures, we do not believe that these requirements would necessitate 
operational changes at any existing cruise ship terminal at this time. 
Instead, the existence of the regulation would set a screening 
``floor,'' as well as provide certainty as to the minimum requirements.
    Finally, the Coast Guard proposes to require cruise ship terminal 
owners or operators to submit their TSPs to the Coast Guard for 
approval no later than 180 days after publication of the final rule. 
Subsequently, the terminal owners or operators would have to operate in 
accordance with their TSPs 1 year after publication of the final rule.

Sec.  105.505 Terminal Screening Program (TSP)

    This section would detail the requirements of the TSP. The Coast 
Guard would require the TSP to be included as part of the FSP, and to 
document the screening process for all persons, baggage, and personal 
items from the time that the person or baggage first enters the cruise 
ship terminal until the person or baggage arrives aboard a cruise ship 
moored at the facility.
    We acknowledge that FSPs currently approved by the Coast Guard 
address screening procedures within the section for access control. 
However, the TSP, as part of the FSP, would provide a more detailed 
description of the screening process at cruise ship terminals. Also, as 
part of the FSP, audits and amendments to the TSP would fall under 
current requirements in Sec.  105.415. A list of specific topics the 
TSP would address is included in Sec.  105.505(c). These topics include 
qualifications and training of persons conducting screening, screening 
methods and equipment used at the terminal, and procedures employed

[[Page 73262]]

when a dangerous substance or device is detected during screening 
operations.
    In developing the requirements for TSPs, we drew upon the current 
requirements for FSPs and the requirements contained in 49 CFR 1544.103 
for security programs developed by air carriers and commercial 
operators that conduct screening at airports. TSA regulations in 49 CFR 
1544.103 were useful in the development of this NPRM because those 
regulations apply to commercial, non-governmental entities conducting 
screening. Nevertheless, we understand that wholesale adoption of the 
TSA regulations would not be appropriate for cruise ship terminals 
because of differences between the operations of the airline and cruise 
ship industries.

Sec.  105.510 Responsibilities of the Owner or Operator

    The Coast Guard proposes adding a new Sec.  105.510, detailing the 
cruise ship terminal owners' or operators' responsibilities regarding 
screening of all persons, baggage, and personal items at the terminal. 
The requirements in this section are in addition to the 
responsibilities described in 33 CFR 105.200. This proposed section 
would ensure that cruise ship terminal owners or operators develop and 
perform several aspects of the screening process, such as the 
following--
     Developing and implementing the TSP;
     Documenting screening responsibilities in the Declaration 
of Security (DoS);
     Enforcing the Prohibited Items List; and
     Establishing procedures for reporting, handling, and 
controlling prohibited items.\2\
---------------------------------------------------------------------------

    \2\ We believe all terminal operators would currently meet the 
proposed standards.
---------------------------------------------------------------------------

    The owner or operator ultimately retains responsibility for the 
security of the cruise ship terminal. By ensuring that screening is 
performed according to these proposed regulations, the owner or 
operator would ensure an essential component of overall security is in 
place for both the cruise ship and the terminal.

Sec.  105.515 Prohibited Items List

    The Coast Guard proposes to require owners and operators of U.S. 
cruise ship terminals to utilize a Prohibited Items List when 
conducting screening of all persons, baggage, and personal effects at 
the terminal. The Coast Guard would also require cruise ship owners or 
operators of cruise ship terminals to include a list of dangerous 
substances and devices in every DoS.
    During development of proposed Sec.  105.515, the Coast Guard 
reviewed the TSA list of prohibited and allowed items for aircraft 
travel, as discussed in the Background section of this preamble. We 
also took into account current industry practices, including 
collaboration between cruise ship and terminal owners or operators to 
develop the List. Finally, we considered the input received from NMSAC, 
which is also discussed in the Background section of this preamble.
    The Coast Guard recognizes that owners or operators of cruise ships 
and cruise ship terminals have a vested interest in prohibiting 
dangerous substances and devices on their property. In order to reduce 
uncertainty in the cruise line industry and the public about what is 
prohibited and what is not, and to better implement the screening 
requirements in 33 CFR 104.295(a) and 105.290(a), the Coast Guard 
proposes to issue and maintain a list of prohibited items that are 
always considered to be dangerous substances and devices, as defined in 
33 CFR 101.105. The Coast Guard would prohibit these dangerous 
substances and devices for security reasons. Accordingly, passengers 
and crew would be prohibited from bringing onboard a cruise ship items 
on the Prohibited Items List at any time through a cruise ship terminal 
regulated under 33 CFR part 105. If an item from the Coast Guard's 
Prohibited Items List is discovered after passing through the screening 
location at the cruise ship or terminal, the owner or operator would be 
required to report a breach of security. The Coast Guard also 
recognizes that some items on the list are necessary to accommodate 
normal cruise ship operations. For this reason, the prohibited items 
list would not apply to cargo and vessel stores. We also note that the 
Prohibited Items List does not necessarily encompass all ``dangerous 
substances and devices,'' and that cruise ship and terminal operators 
can prohibit passengers from bringing on board any other items or 
substances they deem a threat to safety.

Interpretative Rules

    Under 5 U.S.C. 553(b)(A), the notice and comment rulemaking 
requirements of the Administrative Procedure Act (APA) do not apply to 
interpretative rules. The preamble to this proposed rule contains a 
proposed version of the Prohibited Items List. Although the Coast Guard 
does not waive its claim that this list is exempt from APA notice and 
comment requirements, we are soliciting comments at this time on the 
content of the proposed list because the Coast Guard is aware of the 
unique challenges inherent to security screening in the cruise industry 
context. Whereas airline screening can be conducted with the 
understanding that airline travel is undertaken for only a relatively 
short period of time and with a focused mission, cruise travel can be 
for much longer periods of time and with travelers participating in 
varying activities. Additionally, there is no distinction in cruise 
travel between checked baggage or carry-on items, since passengers and 
crew will have access to their personal items once they are onboard.
    Interpretive rules are ``issued by an agency to advise the public 
of the agency's construction of the statutes and the rules which it 
administers.'' Attorney General's Manual on the Administrative 
Procedure Act at 30 n.3. In other words, an interpretive rule 
describes, clarifies, and reminds the public of a statutory standard or 
pre-existing rule. Courts have upheld a general standard to determine 
if a rule is interpretative. American Mining Congress v. Mine Safety 
and Health Admin., 995 F.2d 1106 (D.C. Cir. 1993). The Prohibited Items 
List meets this standard.
    To determine if a rule is interpretive, as opposed to legislative, 
the rule must meet four criteria. Id. at 1112. First, in the absence of 
the interpretive rule there must be adequate legislative or regulatory 
basis for enforcement action. Second, an interpretative rule must not 
be published in the Code of Federal Regulations. Third, the agency 
cannot evoke its general grant of authority when promulgating an 
interpretative rule. Fourth, the interpretive rule must not effectively 
amend a prior legislative rule.
    The development of the Prohibited Items List meets the four-part 
American Mining standard for an interpretive rule. First, the Coast 
Guard has existing regulatory authority to require screening for 
dangerous substances or devices under 33 CFR 104.295 and 105.290, which 
mandate that the owner or operator of a cruise ship and facility ensure 
that all passengers and baggage are screened for such material. The 
existing definition of ``dangerous substances and devices,'' which 
means ``any material, substance, or item that reasonably has the 
potential to cause a transportation security incident,'' already 
provides an adequate basis for enforcement action on its own, without 
further explication (these regulations were promulgated as a 
legislative rule under authority of the Ports and

[[Page 73263]]

Waterways Safety Act (PWSA) and the Maritime Transportation Safety Act 
(MTSA) (see 33 U.S.C. 1221 and 46 U.S.C. 1221)). Second, the final list 
will not be incorporated into the Code of Federal Regulations. While we 
are publishing a draft version of the list in the Federal Register as 
part of the preamble to this proposed regulation to allow for comment 
because of the unique challenges faced when screening cruise line 
passengers, the list is not part of the proposed regulatory text will 
not appear in the Code of Federal Regulations upon publication of the 
Final Rule. Third, the Coast Guard has not invoked its general 
legislative authority when promulgating the list. The authority for 
this interpretive rule is the authority for the Coast Guard to 
interpret its own regulations in 33 CFR 101.105, 104.295, and 105.290. 
Fourth, the rule does not effectively amend a prior legislative rule. 
Instead, the prohibited items list is only a partial explication of the 
phrase ``dangerous substances and devices,'' as defined in 33 CFR 
101.105. What the Prohibited Items List adds is a list of substances 
and items that the Coast Guard believes, under all circumstances, have 
the potential to cause a TSI. The Prohibited Items List would not be a 
substitute for the regulatory definition in section 101.105, as other 
substances and devices could have the potential to cause a TSI under 
specific circumstances, and would be addressed in the TSPs of the 
specific vessels or facilities at issue.
    Due to rapidly-developing threat analysis and security 
considerations, the Coast Guard requires the flexibility to revise the 
Prohibited Items List quickly to protect the public from security 
threats that can change rapidly. In order to keep the list current 
without the delays often associated with notice and comment 
rulemakings, the Coast Guard proposes to publish the list separately as 
an interpretive rule in the Federal Register, and to issue updates in 
the same manner. In proposing this approach, the Coast Guard took note 
of TSA's use of interpretive rules to promulgate and update its list of 
prohibited items (67 FR 8340, February 22, 2002; 68 FR 7444, February 
14, 2003; 70 FR 9877, March 1, 2005; 70 FR 51679, August 31, 2005; and, 
70 FR 72930, December 8, 2005). Additionally, the Coast Guard would 
endeavor to obtain NMSAC input and afford ship and facility owners a 
reasonable amount of advance notice before making an update effective 
unless an immediate change is necessary for imminent public safety and/
or national security reasons. Finally, we reiterate that the Prohibited 
Items List would only prohibit passengers from carrying items in 
baggage or on their persons; it does not prohibit these items from 
being brought onboard by cruise ship operators on their behalf.
    The Coast Guard is soliciting public comments on the content of the 
proposed Prohibited Items List shown below due to the unique challenges 
inherent to security screening in the cruise industry context. 
Additionally, we invite public comments on the use of interpretive 
rules to issue and update the list.

Proposed Prohibited Items List for Cruise Ship Terminals

    Passengers and persons other than passengers are prohibited from 
bringing the following items onboard cruise ships through terminal 
screening operations regulated under 33 CFR part 105.

Weapons, Including

 Hand Guns (including BB guns, pellet guns, compressed air guns 
and starter pistols, as well as ammunition and gunpowder)
 Rifles/shotguns (including BB guns, pellet guns, compressed 
air guns and starter pistols, as well as ammunition and gunpowder)
 Stun guns or other shocking devices (e.g. Taser[supreg], 
cattle prod)
 Realistic replicas and/or parts of guns and firearms

Explosives, Including

 Blasting caps
 Dynamite
 Fireworks or pyrotechnics
 Flares in any form
 Hand grenades
 Plastic explosives
 Explosive devices
 Realistic replicas of explosives

Incendiaries, Including

 Aerosols (including spray paint but excluding items for 
personal care or toiletries in limited quantities)
 Gasoline or other such fuels or accelerants
 Gas torches
 Lighter fluids (except in liquefied gas (e.g. Bic[supreg]-
type) or absorbed liquid (e.g. Zippo[supreg]-type) lighters in 
quantities appropriate for personal use)
 Turpentine
 Paint thinner
 Realistic replicas of incendiaries

Disabling Chemicals and Other Dangerous Items, Including

 Chlorine
 Liquid bleach
 Tear gas and other self defense sprays

The Prohibited Items List does not contain all possible items that may 
be prohibited from being brought on a cruise ship by passengers. The 
Coast Guard and the cruise ship terminal reserve the right to 
confiscate (and destroy) any articles that in our discretion are 
considered dangerous or pose a risk to the safety and security of the 
ship, or our guests, and no compensation will be provided.

Sec.  105.525 Terminal Screening Operations

    Section 105.525 would specify how cruise ship terminal owners or 
operators must screen persons, personal effects, and baggage and where 
the screening must take place. Additionally, this new section would 
provide staffing requirements for screening operations. During 
development of this proposed section, the Coast Guard identified 
several components of existing screening process requirements that 
should be preserved throughout all U.S. cruise ship terminals. The 
proposed regulations are primarily performance-based, but specific 
procedures must take place to ensure the security of persons, their 
personal effects, and baggage.
    Section 105.525 specifies requirements for screening passengers, 
persons other than passengers, checked baggage, and unaccompanied 
baggage. As proposed, the screening of passengers and persons other 
than passengers (such as crew members, vendors, or contractors) may 
take place at the same screening location, or at separate screening 
locations, which is current industry practice. The Coast Guard would 
require application of the same standards for screening locations, 
regardless of who is being screened. Adequate staffing, checking 
personal identification, and re-screening are all addressed in this 
subparagraph.
    If a cruise ship terminal checks baggage, screening or security 
personnel would be required to control the baggage throughout the 
screening process. If a terminal accepts unaccompanied baggage, then 
the cruise ship's Vessel Security Officer would need to provide written 
consent. Screening or security personnel would then treat the 
unaccompanied baggage as checked baggage.
    The Coast Guard would require terminal owners or operators to 
document additional screening methods in an approved TSP. Further, the 
Captain of the Port (COTP) may direct additional screening methods that 
are appropriate for each terminal.

[[Page 73264]]

Sec.  105.530 Qualifications of Screeners

    The Coast Guard proposes adding Sec.  105.530 to address basic 
qualifications for cruise ship terminal screeners. While the Coast 
Guard researched TSA's regulations during the development of this 
section, specifically 49 CFR 1544.405, which describes qualifications 
for new screeners when commercial carriers and aircraft operators 
provide screening, we are proposing screening requirements that are 
less rigorous than those for airline screeners, for the reasons 
described below.
    As mentioned in the discussion of Sec.  105.505 in this preamble, 
TSA's aviation regulations provide a solid foundation for screening 
standards, but they are not wholly appropriate for cruise ship 
terminals. For example, while the Aviation Transportation Security Act 
(ATSA) requires a high school diploma, MTSA contains no such 
requirement.
    The Coast Guard would require the screener to have, as a 
prerequisite, a combination of education and experience that the 
Facility Security Officer deems appropriate for the position. 
Additionally, the screener must be able to use all the screening 
equipment and methods appropriate for the position. Taken together with 
the requirements in 33 CFR 105.210, these qualifications would help to 
ensure that screeners have the ability to perform their duties.

Sec.  105.535 Training Requirements of Screeners

    Screeners at cruise ship terminals currently receive training in 
accordance with Sec.  105.210, as well as facility-specific 
familiarization. The Coast Guard proposes to add requirements for 
certain topics to be covered during the facility-specific 
familiarization. This training would ensure that the screeners are 
instructed in the screening process used at the cruise ship terminal 
where they would be working. These topics would include--
     Historic and current threats against the cruise ship 
industry;
     Relevant portions of the approved TSP and FSP;
     The purpose and content of the approved Prohibited Items 
List;
     Specific instruction on the screening equipment and 
methods used at the terminal;
     Specific response procedures when a dangerous substance or 
device is detected at the terminal;
     Additional screening methods performed at increased MARSEC 
Levels; and
     Any additional topics specified in the terminal's approved 
TSP.

Sec.  105.540 Screener Participation in Drills and Exercises

    Section 105.220 currently requires security drills and exercises. 
In proposed Sec.  105.540, the Coast Guard would require screening 
personnel to participate in drills and exercises performed at the 
cruise ship terminal. The drills and exercises would be excellent 
opportunities not only for testing the terminal's FSP, including the 
TSP, but also would refresh the screeners' training.

Sec.  105.545 Screening Equipment

    This section would address operation and maintenance of x-ray, 
explosives detection, and metal detection equipment used to screen all 
persons, baggage, and personal effects at U.S. cruise ship terminals. 
Again, the Coast Guard researched TSA's standards for screening 
performed by air carriers and commercial operators in 49 CFR part 1544. 
Specifically, TSA's regulations address the use of metal detectors, x-
ray systems, and explosives detection systems in 49 CFR 1544.209, 
1544.211, and 1544.213. Most cruise ship terminals use these systems 
already. Therefore, we used 49 CFR part 1544 as a guide for the 
proposed regulation, with the understanding that the maritime 
environment of a cruise ship terminal is inherently different from the 
environment of an airport.
    The proposed requirements are performance-based. The Coast Guard 
would not require the use of specific equipment or screening methods. 
However, if metal detection, explosive detection, or x-ray equipment is 
used at a cruise ship terminal, then safety and performance standards 
similar to the standards for equipment at airports would be required. 
Further, such screening equipment would be documented in the terminal's 
TSP.
    Of particular note is the proposed signage requirement if x-ray 
equipment is used at the terminal. Similar to airports, people bring 
film and photographic equipment to cruise ship terminals on a regular 
basis. Since x-ray systems may have an effect on film and photographic 
equipment, we propose to add this signage requirement to ensure that 
persons being screened receive adequate notice.

Sec.  105.550 Alternative Screening

    The Coast Guard proposes to add a section concerning alternative 
screening methods including procedures for passengers and crew with 
disabilities or medical conditions precluding certain screening 
methods. If a cruise ship terminal owner or operator chooses to employ 
screening methods other than x-ray, metal detection, or explosives 
detection equipment, then each method must be described in detail 
within the TSP. The Coast Guard intends this proposed section to allow 
cruise ship terminal owners or operators flexibility in their screening 
methods. We believe this would be helpful as new technologies develop. 
It would allow flexibility at terminals with space constraints, or if 
terminal owners or operators use a contingency screening method when a 
piece of equipment fails. Alternative screening methods may take many 
forms. For example, terminal owners or operators may use canine 
explosives detection or manually search baggage and personal effects.

33 CFR Parts 120 and 128

    In July 2004, when vessels and facilities subject to 33 CFR parts 
120 and 128 became subject to 33 CFR parts 101, 103, 104 and 105, the 
Coast Guard placed specific requirements pertaining to cruise ships and 
cruise ship terminals in 33 CFR 104.295 and 105.290, respectively. 
While parts 120 and 128 use slightly different terms than parts 104 and 
105, the concept of ensuring that maritime entities have security plans 
is the same. Therefore, this NPRM proposes removing regulations in 
parts 120 and 128 that require security officers and security plans 
similar to those required in parts 104 and 105. Additionally, the 
procedures in Sec.  120.200 for reporting unlawful acts have been 
superseded by recent amendments to title 46, United States Code, 
chapter 35. For these reasons, the Coast Guard proposes to remove all 
of 33 CFR part 120.
    Finally, the Coast Guard also proposes to remove 33 CFR part 128 in 
its entirety. Not only would the sections requiring security plans and 
security officers be removed, we would also remove Sec.  128.220, which 
requires the reporting of unlawful acts. We believe that the removal of 
this requirement will not diminish security at cruise ship terminals 
because other laws and regulations sufficiently cover the requirement 
in Sec.  128.220.

VI. Regulatory Analyses

    We developed this proposed rule after considering numerous statutes 
and executive orders related to rulemaking. Below we summarized our 
analysis based on 13 of these statutes or executive orders.

[[Page 73265]]

A. Regulatory Planning and Review

    Executive Orders 12866 (``Regulatory Planning and Review'') and 
13563 (``Improving Regulation and Regulatory Review'') direct agencies 
to assess the costs and benefits of available regulatory alternatives 
and, if regulation is necessary, to select regulatory approaches that 
maximize net benefits (including potential economic, environmental, 
public health and safety effects, distributive impacts, and equity). 
Executive Order 13563 emphasizes the importance of quantifying both 
costs and benefits, of reducing costs, of harmonizing rules, and of 
promoting flexibility. This NPRM has been designated a ``significant 
regulatory action,'' although not economically significant, under 
section 3(f) of Executive Order 12866. Accordingly, the NPRM has been 
reviewed by the Office of Management and Budget. A full Regulatory 
Analysis (RA) is available in the docket where indicated under the 
``Public Participation and Request for Comments'' section of this 
preamble. A summary of the RA follows:
    The following table summarizes the affected population, costs, and 
benefits of this proposed rule. A summary of costs and benefits by 
provision are provided later in this section.

       Table 1--Summary of Affected Population, Costs and Benefits
------------------------------------------------------------------------
                     Category                             Estimate
------------------------------------------------------------------------
Affected population...............................  137 MTSA-regulated
                                                     facilities; 23
                                                     cruise line
                                                     companies.
Development of TSP................................  $145,471.
------------------------------------------------------------------------
Updating FSP......................................  $9,092.
                                                   ---------------------
    Total Cost *..................................  $154,563.
------------------------------------------------------------------------
                          Qualitative Benefits
------------------------------------------------------------------------
Terminal Screening Program........................  Greater clarity and
                                                     efficiency due to
                                                     removal of
                                                     redundancy in
                                                     regulations.
                                                    The TSP improves
                                                     industry
                                                     accountability and
                                                     provide for a more
                                                     systematic approach
                                                     to monitor facility
                                                     procedures.
Prohibited Items List.............................  Details those items
                                                     that are prohibited
                                                     from all cruise
                                                     terminals and
                                                     vessels.
                                                    Provides a safer
                                                     environment by
                                                     prohibiting
                                                     potentially
                                                     dangerous items
                                                     across the entire
                                                     industry.
------------------------------------------------------------------------
* Value is undiscounted. We expect the costs of this rulemaking are
  borne in the first year of implementation. See discussion below for
  more details.

    As previously discussed, this proposed rule would amend regulations 
on cruise ship terminal security. The proposed regulations would 
provide flexible requirements for the screening of persons intending to 
board a cruise ship, as well as their baggage and personal effects. In 
this rulemaking, we propose to issue and maintain a minimum requirement 
of Prohibited Items List of dangerous substances or devices (i.e. 
firearms & ammunition, flammable liquids and explosives, dangerous 
chemicals etc. . .), which are based on similar items currently 
prohibited by industry. We anticipate that the prohibited item list 
described in the preamble would be cost neutral to the industry. 
However, the Coast Guard is requesting public comment on this issue if 
anyone believes that this requirement would create a new economic 
burden to industry.
    We also propose to eliminate redundancies in the regulations that 
govern the security of cruise ship terminals.
    The proposed rule would allow owners and operators of cruise ships 
and cruise ship terminals the flexibility of choosing their own 
screening methods and equipment and establish security measures 
tailored to their own operations. This proposed rule would incorporate 
current industry practices and performance standards.
    We found several provisions of the rulemaking to have no additional 
impact based on information from Coast Guard and industry security 
experts and site visits to cruise terminals. A summary of key 
provisions with and without additional costs follow.
    Key provisions without additional costs (current industry practice 
under existing MTSA regulations):
     Sec.  105 Subpart E Screening equipment standards;
    [cir] 33 CFR 105.255 (a) and Sec.  128.200 (a)(1) and Sec.  128 
(a)(2) currently require screening for dangerous substances or devices. 
As such, industry already screens baggage and persons.
     Sec.  105.530 Qualifications of screeners; and,
    [cir] 33 CFR 105.210 details qualifications for facility personnel 
with security duties, which includes operation of security equipment 
and systems, and methods of physical screening of persons, personal 
affects, baggage, cargo and vessel stores.
     Sec.  105.535 Training of screeners.
    [cir] 33 CFR 105.210 details qualifications for facility personnel 
with security duties, which includes operation of security equipment 
and systems, and methods of physical screening of persons, personal 
affects, baggage, cargo and vessel stores. Records for all training 
under Sec.  105.210 are required to be kept per Sec.  105.225 (b)(1).
    The purpose of including these requirements in the proposed 
regulatory action is to consolidate requirements for screeners in one 
place of the CFR and eliminate redundancies in cruise ship security 
regulations by eliminating the requirements in parts 120 and 128. We do 
not believe that these new items would add any additional costs, for 
the reasons described below.
    We note that several of the requirements in Sec.  105.535 are 
already implicitly required by the general security training 
requirements in Sec.  105.210. Specifically, Sec. Sec.  105.535(b), 
(c), and (g), requiring that screening personnel be familiar with 
specific portions of the TSP, are already encompassed by the general 
requirement in 105.210(k), which requires security personnel to be 
familiar with relevant portions of the FSP). Also, Sec.  105.535(f), 
which requires that screeners be familiar with additional screening 
requirements at increased MARSEC levels, is implicitly contained in the 
existing requirement in Sec.  105.210(m).
    Other items in Sec.  105.535 are not expected to increase costs 
because we believe they are already performed by screening personnel. 
We believe that all

[[Page 73266]]

screening personnel are currently trained in the specific screening 
methods and equipment used at the terminal (item (d)), and the 
terminal-specific response procedures when a dangerous item is found 
(item (e)). Furthermore, we believe it is a reasonable assumption that 
terminal screening personnel are familiar with item (a)--historic and 
current threats against the cruise ship industry. However, we do 
request comments on whether cruise ship personnel are familiar with 
this latter matter, and whether cruise ship operators or terminal 
operators would incur any additional costs as a result of these 
proposed requirements.
    We estimate the proposed rule would affect 23 cruise line 
companies. Each cruise line maintains an FSP for each terminal that 
they utilize. Based on information from the Coast Guard Marine 
Information for Safety and Law Enforcement (MISLE) database, we 
estimate that the proposed rule would require that FSPs at 137 MTSA-
regulated facilities be updated. The proposed rule would require these 
facilities to add TSP chapters to their existing FSPs. This rule would 
also require owners and operators of cruise ship terminals to add a 
Prohibited Items List to current FSPs. The following table provides a 
breakdown of additional costs by requirement.

           Table 2--Summary of First-Year Costs by Requirement
------------------------------------------------------------------------
                                 Costs (undiscounted;
         Requirement                   rounded)            Description
------------------------------------------------------------------------
Terminal Screening Program                    $145,471  Cost to create
 (TSP).                                                  and add the TSP
                                                         chapter to the
                                                         FSPs.
Update the FSP...............                    9,092  Cost to update
                                                         the Prohibited
                                                         Items List in
                                                         FSPs.
                              -------------------------
    Total....................                  154,563  First-year
                                                         undiscounted
                                                         costs.
------------------------------------------------------------------------

    We estimate the cost of this rule to industry to be about $154,563 
in the first year. We expect the total costs of this rulemaking to be 
borne in the first year of implementation. Under MTSA, FSPs are 
required to undergo an annual audit, and it is during that audit that 
any revisions to the Prohibited Items List would be incorporated into 
the FSP.\3\ As such, we do not anticipate any recurring annual cost as 
a result of this proposal, as the annual cost to update the FSP is not 
expected to change due to the inclusion of the TSP and Prohibited Items 
List.
---------------------------------------------------------------------------

    \3\ 33 CFR 105.415 for FSP.
---------------------------------------------------------------------------

Benefits

    The benefits of the rulemaking include codification of guidelines 
for qualifications for screeners, more transparent and consistent 
reporting of screening procedures across cruise lines, improved 
industry accountability regarding security procedures, and greater 
clarity and efficiency due to the removal of redundant regulations. We 
do not have data to estimate monetized benefits of this rulemaking. We 
present qualitative benefits and a break even analysis in the 
Regulatory Analysis available in the docket to demonstrate that we 
expect the benefits of the rulemaking to justify its costs.
    There are several qualitative benefits that can be attributed to 
the provisions in this proposal. Table 3 provides a brief summary of 
benefits of key provisions.

                   Table 3--Benefits of Key Provisions
------------------------------------------------------------------------
           Key provision                           Benefit
------------------------------------------------------------------------
Terminal Screening Program........   Greater clarity and
                                     efficiency due to removal of
                                     redundancy in regulations.
                                     The TSP improves industry
                                     accountability and provide for a
                                     more systematic approach to monitor
                                     facility procedures.
                                     Details those items that
                                     are prohibited from all cruise
                                     terminals and vessels.
Prohibited Items List.............   Provides a safer
                                     environment by prohibiting
                                     potentially dangerous items across
                                     the entire industry.
------------------------------------------------------------------------

Break Even Analysis

    It is difficult to quantify the effectiveness of the provisions in 
this rulemaking and the related monetized benefits from averting or 
mitigating a TSI. Damages resulting from TSIs are a function of a 
variety of factors including, but not limited to, target type, 
terrorist attack mode, the number of fatalities and injuries, economic 
and environmental impacts, symbolic effects, and national security 
impacts.
    For regulatory analyses, the Coast Guard uses a value of a 
statistical life (VSL) of $9.1 million. A value of a statistical life 
of $9.1 million is equivalent to a value of $9.10 as a measure of the 
public's willingness to pay to reduce the risk of a fatality by one in 
a million, $0.91 to reduce a one in 10 million risk, and $0.091 to 
reduce a one in 100 million risk.\4\ As 8.9 million passengers embark 
onto cruise ships in the U.S. each year \5\, very small reductions in 
risk can result in a fairly large aggregate willingness to pay for that 
risk reduction. A VSL of $9.1 million indicates that 8.9 million cruise 
ship passengers that embark from the U.S. would collectively be willing 
to pay approximately $8.1 million to reduce the risk of a fatality by 
one in 10 million (8.90 million passenger X $0.91). As the 8.9 million 
passengers estimate only includes the initial embarkation of a cruise 
and passengers often leave and return to the vessel during a cruise 
(passing through screening each time), the actual risk reduction to 
break even per screening may be lower. The annualized costs of the 
proposed rule are approximately $20,000 at 7 percent; thus, the 
proposed rule would have to prevent one fatality every 405 years for 
the rule to reach a break-even point where costs equal benefits ($9.1 
million value of a

[[Page 73267]]

statistical life/$20,000 average annual cost of rule = 405).
---------------------------------------------------------------------------

    \4\ ``Guidance on Treatment of the Economic Value of a 
Statistical Life in U.S., Department of Transportation Analysis'' 
see http://www.dot.gov/regulations/economic-value-used-in-analysis.
    \5\ Source: Cruise Lines International Association, Inc. (CLIA), 
2009 U.S. Economic Impact Study, Table ES-2, Number of U.S, 
Embarkations. http://www.cruising.org/sites/default/files/pressroom/2009EconomicStudies/EconStudy_Exec_Summary2009.pdf.
---------------------------------------------------------------------------

    The preliminary Regulatory Analysis in the docket provides 
additional details of the impacts of this rulemaking.

B. Small Entities

    Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have 
considered whether this proposed 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 fewer than 
50,000 people.
    We expect entities affected by the rule would be classified under 
the North American Industry Classification System (NAICS) code 
subsector 483-Water Transportation, which includes the following six-
digit NAICS codes for cruise lines: 483112-Deep Sea Passenger 
transportation and 483114-Coastal and Great Lakes Passenger 
Transportation.
    According to the Small Business Administration's (SBA) Table of 
Small Business Size Standards \6\, a U.S. company with these NAICS 
codes and employing equal to or fewer than 500 employees is a small 
business. Additionally, cruise lines may fall under the NAICS code 
561510-Travel Agencies, which have a small business size standard of 
equal to or less than $3,500,000 in annual revenue.
---------------------------------------------------------------------------

    \6\ Source: http://www.sba.gov/size. SBA has established a Table 
of Small Business Size Standards, which is matched to the North 
American Industry Classification System (NAICS) industries. A size 
standard, which is usually stated in number of employees or average 
annual receipts (``revenues''), represents the largest size that a 
business (including its subsidiaries and affiliates) may be to 
remain classified as a small business for SBA and Federal 
contracting programs.
---------------------------------------------------------------------------

    For this proposed rule, we reviewed recent company size and 
ownership data from the Coast Guard MISLE database, and public business 
revenue and size data. We found that of the 23 entities that own or 
operate cruise ship terminals and would be affected by this proposed 
rulemaking, 11 are foreign entities. The remaining 12 entities exceed 
the SBA small business standards for small businesses.
    We did not find any small not-for-profit organizations that are 
independently owned and operated and are not dominant in their fields. 
We did not find any small governmental jurisdictions with populations 
of fewer than 50,000 people. Based on this analysis, we found that this 
rulemaking, if promulgated, will not affect a substantial number of 
small entities.
    Therefore, the Coast Guard certifies under 5 U.S.C. 605(b) that 
this proposed rule, if promulgated, will not have a significant 
economic impact on a substantial number of U.S. small entities. If you 
think that a business, organization, or governmental jurisdiction 
qualifies as a small entity and that this proposed rule will have a 
significant economic impact on it, please submit a comment to the 
Docket Management Facility at the address under ADDRESSES. In your 
comment, explain why you think it qualifies as a small entity and how 
and to what degree this proposed rule will economically affect it.

C. Assistance for Small Entities

    Under section 213(a) of the Small Business Regulatory Enforcement 
Fairness Act of 1996 (Pub. L. 104-121), we want to assist small 
entities in understanding this proposed rule so that they can better 
evaluate its effects on them and participate in the rulemaking. If the 
proposed rule would affect your small business, organization, or 
governmental jurisdiction and you have questions concerning its 
provisions or options for compliance, please contact LCDR Kevin 
McDonald at the telephone number or email address indicated under the 
FOR FURTHER INFORMATION CONTACT section of this notice. The Coast Guard 
will not retaliate against small entities that question or complain 
about this rule or any policy or action of the Coast Guard.
    Small businesses may send comments on the actions of Federal 
employees who enforce or otherwise determine compliance with Federal 
regulations to the Small Business and Agriculture Regulatory 
Enforcement Ombudsman and the Regional Small Business Regulatory 
Fairness Boards. The Ombudsman evaluates these actions annually and 
rates each agency's responsiveness to small business. If you wish to 
comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR 
(1-888-734-3247).

D. Collection of Information

    This proposed rule would call for a collection of information under 
the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520). As defined 
in 5 CFR 1320.3(c), ``collection of information'' comprises reporting, 
recordkeeping, monitoring, posting, labeling, and other similar 
actions. The title and description of the information collection, a 
description of those who must collect the information, and an estimate 
of the total annual burden follow. The estimate covers the time for 
reviewing instructions, searching existing sources of data, gathering 
and maintaining the data needed, and completing and reviewing the 
collection.
    Under the provisions of the proposed rule, plan holders would 
submit amended security plans within 180 days of promulgation of the 
rule and update them annually. This requirement would be added to an 
existing collection with OMB control number 1625-0077.
    Title: Security Plans for Ports, Vessels, Facilities, Outer 
Continental Shelf Facilities and Other Security-Related Requirements.
    OMB Control Number: 1625-0077.
    Summary of The Collection of Information: Facilities that receive 
cruise ships would be required to update Facility Security Plans (FSPs) 
to contain additional information regarding the screening process at 
cruise terminals. Also, all cruise ship terminals that currently have a 
Facility Security Plan (FSP), would need to update said plan to include 
the list of prohibited items as detailed in this proposed rule.
    Need for Information: The information is necessary to show evidence 
that cruise lines are consistently providing a minimum acceptable 
screening process when boarding passengers. The information would 
improve existing and future FSPs for cruise terminals, since they 
currently do not separate this important information.
    Proposed Use of Information: The Coast Guard would use this 
information to ensure that facilities are taking the proper security 
precautions when loading cruise ships.
    Description of the Respondents: The respondents are FSP holders 
that receive cruise ships.
    Number of Respondents: The adjusted number of respondents is 13,825 
for vessels, 3,270 for facilities, and 56 for Outer Continental Shelf 
(OCS) facilities. Of these 3,270 facilities, 137 that receive cruise 
ships would be required to modify their existing FSPs to account for 
the TSP chapter.
    Frequency of Response: Cruise lines would only need to write a TSP 
chapter once before inserting it into the associated FSP. This would be 
required during the first 6 months after publication of the final rule.
    Burden of Response: The estimated burden for cruise lines per TSP 
chapter would be approximately 16 hours. The estimated burden to update 
the FSP would be 1 hour.
    Estimate of Total Annual Burden: The estimated first-year burden 
for cruise lines is 16 hours per TSP chapter. Since

[[Page 73268]]

there are currently 137 FSPs, the total burden on facilities would be 
2,192 hours (137 TSPs x 16 hours per TSP) in the first year. For the 
137 facilities, the total burden would be 137 hours (137 FSPs x 1 hour 
per VSP). The current burden listed in this collection of information 
is 1,108,043. The new burden, as a result of this proposed rulemaking, 
is 1,110,392 (1,108,043 + 2,192 + 137) in the first year only. All 
subsequent year burdens will be considered part of the annual review 
process for FSPs.
    As required by the Paperwork Reduction Act of 1995 (44 U.S.C. 
3507(d)), we have submitted a copy of this proposed rule to the OMB for 
its review of the collection of information.
    We ask for public comment on the proposed collection of information 
to help us determine how useful the information is; whether it can help 
us perform our functions better; whether it is readily available 
elsewhere; how accurate our estimate of the burden of collection is; 
how valid our methods for determining burden are; how we can improve 
the quality, usefulness, and clarity of the information; and how we can 
minimize the burden of collection.
    If you submit comments on the collection of information, submit 
them both to OMB and to the Docket Management Facility where indicated 
under ADDRESSES, by the date under DATES.
    You need not respond to a collection of information unless it 
displays a currently valid control number from OMB. Before the 
requirements for this collection of information become effective, we 
will publish a notice in the Federal Register of OMB's decision to 
approve, modify, or disapprove the proposed collection.

E. Federalism

    A rule has implications for federalism under Executive Order 13132, 
Federalism, if it has a substantial direct effect 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. We have analyzed this proposed rule under that Order and 
have determined that it has implications for federalism. A summary of 
the impact of federalism in this rule follows.
    This NPRM builds on the existing port security requirements found 
in 33 CFR part 105 by establishing detailed, flexible requirements for 
the screening of persons, baggage, and personal items intended for 
boarding a cruise ship. It also establishes terminal screening 
requirements for owners and operators of cruise ship terminals, some of 
which are State entities.
    As implemented by the Coast Guard, the MTSA-established federal 
security requirements for regulated maritime facilities, including the 
terminal facilities serving the cruise ship industry, which are 
proposed for amendment by this Notice. These regulations were, in many 
cases, preemptive of State requirements. Where State requirements might 
conflict with the provisions of a federally approved security plan, 
they had the effect of impeding important federal purposes, including 
achieving uniformity. However, the Coast Guard also recognizes that 
States have an interest in these proposals to the extent they impose 
requirements on State-operated terminals or individual States may wish 
to develop stricter regulations for the federally regulated maritime 
facilities in their ports, so long as necessary security and the above-
described principles of federalism are not compromised. Sections 4 and 
6 of Executive Order 13132 require that for any rules with preemptive 
effect, the Coast Guard shall provide elected officials of affected 
state and local governments and their representative national 
organizations the notice and opportunity for appropriate participation 
in any rulemaking proceedings, and to consult with such officials early 
in the rulemaking process. Therefore, we invite affected state and 
local governments and their representative national organizations to 
indicate their desire for participation and consultation in this 
rulemaking process by submitting comments to this notice. In accordance 
with Executive Order 13132, the Coast Guard will provide a federalism 
impact statement to document (1) the extent of the Coast Guard's 
consultation with State and local officials that submit comments to 
this proposed rule, (2) a summary of the nature of any concerns raised 
by state or local governments and the Coast Guard's position thereon, 
and (3) a statement of the extent to which the concerns of State and 
local officials have been met.

F. Unfunded Mandates Reform Act

    The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) 
requires Federal agencies to assess the effects of their discretionary 
regulatory actions. In particular, the Act addresses actions that may 
result in the expenditure by a State, local, or tribal government, in 
the aggregate, or by the private sector of $100,000,000 (adjusted for 
inflation) or more in any one year. Though this proposed rule would not 
result in such an expenditure, we do discuss the effects of this 
proposed rule elsewhere in this preamble.

G. Taking of Private Property

    This proposed rule would not cause a taking of private property or 
otherwise have taking implications under Executive Order 12630, 
Governmental Actions and Interference with Constitutionally Protected 
Property Rights.

H. Civil Justice Reform

    This proposed 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.

I. Protection of Children

    We have analyzed this proposed rule under Executive Order 13045, 
Protection of Children from Environmental Health Risks and Safety 
Risks. This rule is not an economically significant rule and would not 
create an environmental risk to health or risk to safety that might 
disproportionately affect children.

J. Indian Tribal Governments

    This proposed rule does not have tribal implications under 
Executive Order 13175, Consultation and Coordination with Indian Tribal 
Governments, because it would not have a substantial direct effect on 
one or more Indian tribes, on the relationship between the Federal 
Government and Indian tribes, or on the distribution of power and 
responsibilities between the Federal Government and Indian tribes.

K. Energy Effects

    We have analyzed this proposed 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. Though 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.

L. Technical Standards

    The National Technology Transfer and Advancement Act (NTTAA) (15 
U.S.C. 272 note) directs agencies to use voluntary consensus standards 
in their

[[Page 73269]]

regulatory activities unless the agency provides Congress, through the 
Office of Management and Budget, with an explanation of why using these 
standards would be inconsistent with applicable law or otherwise 
impractical. Voluntary consensus standards are technical standards 
(e.g., specifications of materials, performance, design, or operation; 
test methods; sampling procedures; and related management systems 
practices) that are developed or adopted by voluntary consensus 
standards bodies.
    This proposed rule does not add any voluntary consensus standards. 
Due to the nature of cruise ship security operations, performance-based 
standards allow an appropriate degree of flexibility that accommodates 
and is consistent with different terminal sizes and operations. This 
proposed rule would standardize screening activities for all persons, 
baggage, and personal effects at cruise ship terminals to ensure a 
consistent layer of security at terminals throughout the United States. 
Additionally, the Coast Guard consulted with the Transportation 
Security Administration (TSA) during the development of this proposed 
rule.
    We propose to use performance-based requirements in this rule. The 
Coast Guard reserves the right to require voluntary consensus standards 
at a later date, via a notice of availability or in conjunction with a 
subsequent rulemaking published in the Federal Register. If you 
disagree, please send a comment to the docket using one of the methods 
under ADDRESSES. In your comment, explain why you disagree with our 
analysis and/or identify voluntary consensus standards that might 
apply.

M. Environment

    We have analyzed this proposed rule under Department of Homeland 
Security Management Directive 023-01 and Commandant Instruction 
M16475.lD, which guide the Coast Guard in complying with the National 
Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and 
have made a preliminary determination that this action is one of a 
category of actions that do not individually or cumulatively have a 
significant effect on the human environment. A preliminary 
environmental analysis checklist supporting this determination is 
available in the docket where indicated under the ``Public 
Participation and Request for Comments'' section of this preamble. This 
rule involves requirements for the screening of persons, baggage, and 
personal items intended for boarding a cruise ship and falls under 
paragraphs 34(a), regulations which are editorial or procedural; 34(c), 
regulations concerning the training, qualifying, licensing, and 
disciplining or maritime personnel; and 34(d), regulations concerning 
the documentation, admeasurement, inspection, and equipment of vessels, 
of the Coast Guard's NEPA Implementing Procedures and Policy for 
Considering Environmental Impacts, COMDTINST M16475.1D, and paragraph 
6(b) of the Appendix to National Environmental Policy Act: Coast Guard 
Procedures for Categorical Exclusions (67 FR 48243, July 23, 2002). We 
seek any comments or information that may lead to the discovery of a 
significant environmental impact from this proposed rule.

List of Subjects

33 CFR Part 101

    Harbors, Maritime security, Reporting and recordkeeping 
requirements, Security measures, Vessels, Waterways.

33 CFR Part 104

    Maritime security, Reporting and recordkeeping requirements, 
Security measures, Vessels.

33 CFR Part 105

    Maritime security, Reporting and recordkeeping requirements, 
Security measures.

33 CFR Part 120

    Passenger vessels, Reporting and recordkeeping requirements, 
Security measures, Terrorism.

33 CFR Part 128

    Harbors, Reporting and recordkeeping requirements, Security 
measures, Terrorism.

    For the reasons listed in the preamble, the Coast Guard proposes to 
amend 33 CFR parts 101, 104, 105, 120, and 128 as follows:

PART 101--MARITIME SECURITY: GENERAL

0
1. The authority citation for part 101 continues to read as follows:

    Authority: 33 U.S.C. 1226, 1231; 46 U.S.C. Chapter 701; 50 
U.S.C. 191, 192; Executive Order 12656, 3 CFR 1988 Comp., p. 585; 33 
CFR 1.05-1, 6.04-11, 6.14, 6.16, and 6.19; Department of Homeland 
Security Delegation No. 0170.1.


Sec.  101.105  [Amended]

0
2. In Sec.  101.105--
0
b. Add, in alphabetical order, definitions for the terms ``Carry-on 
item'', ``Checked baggage'', ``Cruise ship terminal'', ``Cruise ship 
voyage'', ``Disembark'', ``Embark'', ``Explosive detection system 
(EDS)'', ``High seas'', ``Port of call'', ``Screener'', and ``Terminal 
screening program (TSP)'' to read as follows:


Sec.  101.105  Definitions.

* * * * *
    Carry-on item means an individual's accessible property, including 
any personal effects that the individual intends to carry onto a vessel 
or facility subject to this subchapter and is therefore subject to 
screening.
* * * * *
    Checked baggage means an individual's personal property tendered by 
or on behalf of a passenger and accepted by a facility or vessel owner 
or operator. This baggage is accessible to the individual after 
boarding the vessel.
* * * * *
    Cruise ship terminal means any portion of a facility that receives 
a cruise ship or its tenders to embark or disembark passengers or crew.
    Cruise ship voyage means a cruise ship's entire course of travel, 
from the first port at which the vessel embarks passengers until its 
return to that port or another port where the majority of the 
passengers disembark and terminate their voyage. A cruise ship voyage 
may include one or more ports of call.
* * * * *
    Disembark means any time that the crew or passengers leave the 
ship.
* * * * *
    Embark means any time that crew or passengers board the ship, 
including re-boarding at ports of call.
* * * * *
    Explosives Detection System (EDS) means any system, including 
canines, automated device, or combination of devices that have the 
ability to detect explosive material.
* * * * *
    High seas means the waters defined in Sec.  2.32(d) of this 
chapter.
* * * * *
    Port of call means a U.S. port where a cruise ship makes a 
scheduled or unscheduled stop in the course of its voyage and 
passengers are allowed to embark and disembark the vessel.
* * * * *
    Screener means an individual who is trained and authorized to 
screen or inspect persons, baggage (including carry-on items), personal 
effects, and vehicles for the presence of dangerous substances and 
devices, and other items listed in the vessel or facility security 
plan.
* * * * *
    Terminal Screening Program (TSP) means a written program developed 
for

[[Page 73270]]

a cruise ship terminal that documents methods used to screen persons, 
baggage, and carry-on items for the presence of dangerous substances 
and devices to ensure compliance with this part.
* * * * *

PART 104--MARITIME SECURITY: VESSELS

0
3. The authority citation for part 104 continues to read as follows:

    Authority: 33 U.S.C. 1226, 1231; 46 U.S.C. Chapter 701; 50 
U.S.C. 191; 33 CFR 1.05-1, 6.04-11, 6.14, 6.16, and 6.19; Department 
of Homeland Security Delegation No. 0170.1.

0
4. In Sec.  104.295, revise paragraph (a)(1) to read as follows:


Sec.  104.295  Additional requirements--cruise ships.

    (a) * * *
    (1) Screen all persons, baggage, and personal effects for dangerous 
substances and devices at the cruise ship terminal or, in the absence 
of a terminal, immediately prior to embarking a cruise ship, in 
accordance with the qualification, training, and equipment requirements 
of Sec. Sec.  105.530, 105.535, and 105.545 of this chapter.
* * * * *

PART 105--MARITIME SECURITY: FACILITIES

0
5. The authority citation for part 105 continues to read as follows:

    Authority: 33 U.S.C. 1226, 1231; 46 U.S.C. 70103; 50 U.S.C. 191; 
33 CFR 1.05-1, 6.04-11, 6.14, 6.16, and 6.19; Department of Homeland 
Security Delegation No. 0170.1.

0
6. In Sec.  105.225, revise paragraph (b)(1) to read as follows:


Sec.  105.225  Facility recordkeeping requirements.

* * * * *
    (b) * * *
    (1) Training. For training under Sec. Sec.  105.210 and 105.535, 
the date of each session, duration of session, a description of the 
training, and a list of attendees;
* * * * *
0
7. In Sec.  105.290, revise paragraphs (a) and (b) to read as follows:


Sec.  105.290  Additional requirements--cruise ship terminals.

* * * * *
    (a) Screen all persons, baggage, and personal effects for dangerous 
substances and devices in accordance with the requirements in subpart E 
of this part;
    (b) Check the identification of all persons seeking to enter the 
facility in accordance with Sec. Sec.  101.514, 101.515, and 105.255 of 
this subchapter. Persons holding a Transportation Worker Identification 
Credential (TWIC) must be checked as set forth in this part. For 
persons not holding a TWIC, this check includes confirming the 
individual's validity for boarding by examining passenger tickets, 
boarding passes, government identification or visitor badges, or work 
orders;
* * * * *
0
8. In Sec.  105.405, revise paragraph (a)(17) and (a)(18), reserve 
paragraphs (a)(19) and (a)(20), and add paragraph (a)(21) to read as 
follows:


Sec.  105.405  Format and content of the Facility Security Plan (FSP).

    (a) * * *
    (17) Facility Security Assessment (FSA) report;
    (18) Facility Vulnerability and Security Measures Summary (Form CG-
6025) in Appendix A to part 105; and,
    (19) Reserved
    (20) Reserved
    (21) If applicable, cruise ship Terminal Screening Program (TSP) in 
accordance with subpart E of this part.
0
9. Add new subpart E to part 105 to read as follows:
Subpart E--Facility Security: Cruise Ship Terminals
Sec.
105.500 General.
105.505 Terminal Screening Program (TSP).
105.510 Screening responsibilities of the owner or operator.
105.515 Prohibited Items List.
105.525 Terminal screening operations.
105.530 Qualifications of screeners.
105.535 Training requirements of screeners.
105.540 Screener participation in drills and exercises.
105.545 Screening equipment.
105.550 Alternate screening.

Subpart E--Facility Security: Cruise Ship Terminals


Sec.  105.500  General.

    (a) Applicability. The owner or operator of a cruise ship terminal 
must comply with this subpart when receiving a cruise ship or tenders 
from cruise ships.
    (b) Purpose. This subpart establishes cruise ship terminal 
screening programs within the Facility Security Plans (FSPs) to ensure 
that prohibited items are not present within the secure areas that have 
been designated for screened persons, baggage, and personal effects, 
and are not brought onto cruise ships interfacing with the terminal.
    (c) Compliance dates. (1) No later than 180 days after the 
effective date of the final rule, cruise ship terminal owners or 
operators must submit, for each terminal, a Terminal Screening Program 
(TSP) that conforms with the requirements in Sec.  105.505 of this 
subpart to the cognizant COTP for review and approval.
    (2) No later than 1 year after the effective date of the final 
rule, each cruise ship terminal owner or operator must operate in 
compliance with an approved TSP and this subpart.


Sec.  105.505  Terminal Screening Program (TSP).

    (a) General requirements. The owner or operator of a cruise ship 
terminal must ensure a Terminal Screening Program (TSP) is developed, 
added to the Facility Security Plan (FSP), and implemented. The TSP 
must:
    (1) Document all procedures that are employed to ensure all 
persons, baggage, and personal effects are screened at the cruise ship 
terminal prior to being allowed into a cruise ship terminal's secure 
areas or onto a cruise ship;
    (2) Be written in English; and,
    (3) Be approved by the Coast Guard as part of the FSP in accordance 
with subpart D of this part.
    (b) Availability. Each cruise ship terminal Facility Security 
Officer must:
    (1) Maintain the TSP in the same or similar location as the FSP as 
described in Sec.  105.400(d) of this part;
    (2) Have an accessible, complete copy of the TSP at the cruise ship 
terminal;
    (3) Have a copy of the TSP available for inspection upon request by 
the Coast Guard;
    (4) Maintain the TSP as sensitive security information (SSI) and 
protect it in accordance with 49 CFR part 1520; and
    (5) Make a copy of the current Prohibited Items List publicly 
available. The List and copies thereof are not SSI.
    (c) Content. The TSP must include the following:
    (1) A line diagram of the cruise ship terminal including:
    (i) The physical boundaries of the terminal;
    (ii) The location(s) where all persons intending to board a cruise 
ship, and all personal effects and baggage are screened; and,
    (iii) The point(s) in the terminal beyond which no unscreened 
person may pass;
    (2) The responsibilities of the owner or operator regarding the 
screening of persons, baggage, and personal effects;
    (3) The procedure to obtain and maintain the Prohibited Items List;
    (4) The procedures used to comply with the requirements of Sec.  
105.530 of this part regarding qualifications of screeners;

[[Page 73271]]

    (5) The procedures used to comply with the requirements of Sec.  
105.535 of this part regarding training of screeners;
    (6) The number of screeners needed at each location to ensure 
adequate screening;
    (7) A description of the equipment used to comply with the 
requirements of Sec.  105.525 of this part regarding the screening of 
individuals, their personal effects, and baggage, including screening 
at increased MARSEC Levels, and the procedures for use of that 
equipment;
    (8) The operation, calibration, and maintenance of any and all 
screening equipment used in accordance with Sec.  105.545 of this part;
    (9) The procedures used to comply with the requirements of Sec.  
105.550 of this part regarding the use of alternative screening methods 
and/or equipment, including procedures for passengers and crew with 
disabilities or medical conditions precluding certain screening 
methods; and
    (10) The procedures used when prohibited items are detected.
    (d) As a part of the FSP, the requirements in Sec. Sec.  105.410 
and 105.415 of this part governing submission, approval, amendment, and 
audit of a TSP apply.


Sec.  105.510  Screening responsibilities of the owner or operator.

    In addition to the requirements of Sec.  105.200 of this part, the 
owner or operator of a cruise ship terminal must ensure that:
    (a) A Terminal Screening Program (TSP) is developed in accordance 
with this subpart, and submitted to and approved by the cognizant 
Captain of the Port (COTP), as part of the Facility Security Plan 
(FSP), in accordance with this part;
    (b) Screening is conducted in accordance with this subpart and an 
approved TSP;
    (c) Specific screening responsibilities are documented in a 
Declaration of Security (DoS) in accordance with Sec. Sec.  104.255 and 
105.245 of this subchapter;
    (d) Procedures are established for reporting and handling 
prohibited items that are detected during the screening process;
    (e) All personal screening is conducted in a uniform, courteous, 
and efficient manner respecting personal rights to the maximum extent 
practicable; and
    (f) When the MARSEC Level is increased, additional screening 
measures are employed in accordance with an approved TSP.


Sec.  105.515  Prohibited Items List.

    (a) The Coast Guard will issue and maintain a Prohibited Items List 
consisting of dangerous substances and devices for purposes of 
Sec. Sec.  105.290(a) of this chapter. The list specifies those items 
that the Coast Guard prohibits all persons from bringing onboard any 
cruise ship through terminal screening operations regulated under 33 
CFR part 105.
    (b) Procedures for screening persons, baggage and personal effects 
must include use of the Prohibited Items List which will be provided to 
screening personnel by the cruise ship terminal owner or operator.
    (c) The list must be present at each screening location during 
screening operations. Additionally, the list must be included as part 
of the Declaration of Security.
    (d) Facility personnel must report the discovery of a prohibited 
item introduced by violating security measures at a cruise ship 
terminal as a breach of security in accordance with Sec.  101.305(b) of 
this subchapter.


Sec.  105.525  Terminal screening operations.

    (a) Passengers and personal effects. (1) Each cruise ship terminal 
must have at least one location to screen passengers and carry-on items 
prior to allowing such passengers and carry-on items into secure areas 
of the terminal designated for screened persons and carry-on items.
    (2) Screening locations must be adequately staffed and equipped to 
conduct screening operations in accordance with the approved Terminal 
Screening Program (TSP).
    (3) Facility personnel must check personal identification prior to 
allowing a person to proceed to a screening location, in accordance 
with Sec.  105.290(b) of this part, which sets forth additional 
requirements for cruise ship terminals at all Maritime Security levels.
    (4) All screened passengers and their carry-on items must remain in 
secure areas of the terminal designated for screened persons and 
personal effects until boarding the cruise ship. Persons who leave a 
secure area must be re-screened.
    (b) Persons other than passengers. Crew members, visitors, vendors, 
and other persons who are not passengers, and their personal effects, 
must be screened either at screening locations where passengers are 
screened or at another location that is adequately staffed and equipped 
in accordance with this subpart and is specifically designated in an 
approved TSP.
    (c) Checked baggage. (1) A cruise ship terminal that accepts 
baggage must have at least one location designated for the screening of 
checked baggage.
    (2) Screening personnel may only accept baggage from a person 
with--
    (i) A valid passenger ticket;
    (ii) Joining instructions;
    (iii) Work orders; or
    (iv) Authorization from the terminal or vessel owner or operator to 
handle baggage;
    (3) Screening personnel may only accept baggage in an area 
designated in an approved TSP and manned by terminal screening 
personnel; and,
    (4) Screening or security personnel must constantly control the 
checked baggage, in a secure area, from the time it is accepted at the 
terminal until it is onboard the cruise ship.
    (d) Unaccompanied baggage. (1) Facility personnel may accept 
unaccompanied baggage, as defined in Sec.  101.105 of this subchapter, 
only if the Vessel Security Officer provides prior written approval for 
the unaccompanied baggage.
    (2) If facility personnel accept unaccompanied baggage at a cruise 
ship terminal, they must handle such baggage in accordance with 
paragraph (c) of this section.


Sec.  105.530  Qualifications of screeners.

    In addition to the requirements for facility personnel with 
security duties contained in Sec.  105.210 of this part, screening 
personnel at cruise ship terminals must--
    (a) Have a combination of education and experience that the 
Facility Security Officer (FSO) has determined to be sufficient for the 
individual to perform the duties of the position; and
    (b) Be capable of using all screening methods and equipment needed 
to perform the duties of the position.


Sec.  105.535  Training requirements of screeners.

    In addition to the requirements for facility personnel with 
security duties in Sec.  105.210 of this part, screening personnel at 
cruise ship terminals must demonstrate knowledge, understanding, and 
proficiency in the following areas as part of their security-related 
familiarization--
    (a) Historic and current threats against the cruise ship industry;
    (b) Relevant portions of the Terminal Screening Program (TSP) and 
Facility Security Plan;
    (c) The purpose and contents of the cruise ship terminal Prohibited 
Items List;
    (d) Specific instruction on screening methods and equipment used at 
the cruise ship terminal;

[[Page 73272]]

    (e) Terminal-specific response procedures when a dangerous 
substance or device is detected;
    (f) Additional screening requirements at increased Maritime 
Security Levels; and,
    (g) Any additional topics specified in the facility's approved TSP.


Sec.  105.540  Screener participation in drills and exercises.

    Screening personnel must participate in drills and exercises 
required under Sec.  105.220 of this part.


Sec.  105.545  Screening equipment.

    The following screening equipment may be used, provided it is 
specifically documented in an approved Terminal Screening Program 
(TSP).
    (a) Metal detection devices. (1) The owner or operator of a cruise 
ship terminal may use a metal detection device to screen persons, 
baggage, and personal effects.
    (2) Metal detection devices used at any cruise ship terminal must 
be operated, calibrated, and maintained in accordance with 
manufacturer's instructions.
    (b) X-ray systems. The owner or operator of a cruise ship terminal 
may use an x-ray system for the screening and inspection of personal 
effects and baggage if all of the following requirements are 
satisfied--
    (1) The system meets the standards for cabinet x-ray systems used 
primarily for the inspection of baggage, found in 21 CFR 1020.40;
    (2) Familiarization training for screeners, in accordance with 
Sec.  105.535 of this subpart, includes training in radiation safety 
and the efficient use of x-ray systems;
    (3) The system must meet the imaging requirements found in 49 CFR 
1544.211;
    (4) The system must be operated, calibrated, and maintained in 
accordance with manufacturer's instructions;
    (5) The x-ray system must fully comply with any defect notice or 
modification order issued for that system by the Food and Drug 
Administration (FDA), unless the FDA has advised that a defect or 
failure to comply does not create a significant risk of injury, 
including genetic injury, to any person;
    (6) The owner or operator must ensure that a sign is posted in a 
conspicuous place at the screening location where x-ray systems are 
used to inspect personal effects and where screeners accept baggage. 
These signs must--
    (i) Notify individuals that items are being screened by x-ray and 
advise them to remove all x-ray, scientific, and high-speed film from 
their personal effects and baggage before screening;
    (ii) Advise individuals that they may request screening of their 
photographic equipment and film packages be done without exposure to an 
x-ray system; and
    (iii) Advise individuals to remove all photographic film from their 
personal effects before screening, if the x-ray system exposes any 
personal effects or baggage to more than one milliroentgen during the 
screening.
    (c) Explosives detection systems. The owner or operator of a cruise 
ship terminal may use an explosives detection system to screen baggage 
and personal effects for the presence of explosives if it meets the 
following requirements:
    (1) At locations where x-ray technology is used to inspect baggage 
or personal effects for explosives, the terminal owner or operator must 
post signs in accordance with paragraph (b)(6) of this section; and,
    (2) All explosives detection equipment used at a cruise ship 
terminal must be operated, calibrated, and maintained in accordance 
with manufacturer's instructions.


Sec.  105.550  Alternative screening.

    If the owner or operator of a U.S. cruise ship terminal chooses to 
screen using equipment or methods other than those described in Sec.  
105.545 of this subpart, the equipment and methods must be described in 
detail in an approved Terminal Screening Program.

PART 120--SECURITY OF PASSENGERS [REMOVED AND RESERVED]

0
10. Under the authority of 33 U.S.C. 1231, remove and reserve part 120.

PART 128--SECURITY OF PASSENGER TERMINALS [REMOVED AND RESERVED]

0
11. Under the authority of 33 U.S.C. 1231, remove and reserve part 128.

    Dated: November 24, 2014.
Paul F. Zukunft,
Admiral, U.S. Coast Guard Commandant.
[FR Doc. 2014-28845 Filed 12-9-14; 8:45 am]
BILLING CODE 9110-04-P