Seafarers' Access to Maritime Facilities, 77981-77996 [2014-30013]

Download as PDF asabaliauskas on DSK5VPTVN1PROD with PROPOSALS Federal Register / Vol. 79, No. 248 / Monday, December 29, 2014 / Proposed Rules Description: This rule requires every transfer agent to establish and implement written procedures for the cancellation, storage, transportation, destruction, or other disposition of securities certificates. The rule requires transfer agents to mark each cancelled securities certificate with the word ‘‘cancelled’’; maintain a secure storage area for cancelled certificates; maintain a retrievable database of all cancelled, destroyed, or otherwise disposed of certificates; and have specific procedures for the destruction of cancelled certificates. Additionally, the Commission amended its lost and stolen securities rule and its transfer agent safekeeping rule to make it clear that these rules apply to unissued and cancelled certificates. Prior Commission Determination Under 5 U.S.C. 610: A Final Regulatory Flexibility Analysis was prepared in accordance with Section 604 of the Regulatory Flexibility Act in conjunction with the adoption of Release No. 34–48931 (December 16, 2003). The Commission solicited comment on the Initial Regulatory Flexibility Analysis prepared in the proposing release, Release No. 34–43401 (October 2, 2000), but received no comment on that analysis. The Commission did receive comments related to small business, and considered those comments in the adopting release. * * * * * Title: Compliance Programs of Investment Companies and Investment Advisers Citation: 17 CFR 270.38a–1; 17 CFR 275.204–2; 17 CFR 275.206(4)–7 Authority: 15 U.S.C. 80a–1 et seq., 80a–34(d), 80a–37, 80a–39, 80b–1 et seq., 80b–2(a)(11)(F), 80b–2(a)(17), 80b– 3, 80b–4, 80b–6(4), 80b–6a, 80b–11 Description: The rules require each investment company and investment adviser registered with the Commission and each business development company to (i) adopt and implement written compliance policies and procedures, (ii) review those policies and procedures annually, and (iii) appoint a compliance officer to be responsible for administering the policies and procedures. The rules also impose a new recordkeeping requirement. Prior Commission Determination Under 5 U.S.C. 601: A Final Regulatory Flexibility Analysis was prepared in accordance with Section 604 of the Regulatory Flexibility Act regarding rule 38a–1 under the Investment Company Act of 1940, new rule 206(4)–7 under the Investment Advisers Act, and VerDate Sep<11>2014 18:49 Dec 24, 2014 Jkt 235001 amendments to rule 204–2 under the Investment Advisers Act, and to Part 1, Schedule A, Item 2(a) of Form ADV in conjunction with the Commission’s adoption of Release No. IA–2204 (December 17, 2003). The Commission considered comments on the proposing release and on the Initial Regulatory Flexibility Analysis prepared in Release No. IC–25925 (Feb. 5, 2003) at that time. * * * * * Title: Recordkeeping Requirements for Registered Transfer Agents Citation: 17 CFR 240. 240.17Ad–7 Authority: 15 U.S.C. 77c, 77d, 77g, 77j, 77s, 77z–2, 77z–3, 77eee, 77ggg, 77nnn, 77sss, 77ttt, 78c, 78d, 78e, 78f, 78g, 78i, 78j, 78j–1, 78k, 78k–1, 78l, 78m, 78n, 78o, 78p, 78q, 78s, 78u–5, 78w, 78x, 78ll, 78mm, 79q, 79t, 80a–20, 80a–23, 80a–29, 80a–37, 80b–3, 80b–4, 80b–11, 7202, 7241, 7262, and 7263, and 18 U.S.C. 1350. Description: The Commission amended its rule concerning recordkeeping requirements for registered transfer agents. The amendments made it clear that registered transfer agents may use electronic, microfilm, and microfiche media as a substitute for hard copy records, including cancelled stock certificates, for purposes of complying with the Commission’s transfer agent recordkeeping rules and that a third party on behalf of a registered transfer agent may place into escrow the required software information. Prior Commission Determination Under 5 U.S.C. 610: A Final Regulatory Flexibility Analysis was prepared in accordance with Section 604 of the Regulatory Flexibility Act in conjunction with Release No. 34–48949 (December 18, 2003). The Commission received comment letters in response to the Initial Regulatory Flexibility Analysis in the proposing release, Release No. 34–48036 (June 16, 2003), that did not address the issues presented in the proposing release. By the Commission. Dated: December 19, 2014. Brent J. Fields, Secretary. [FR Doc. 2014–30265 Filed 12–24–14; 8:45 am] BILLING CODE 8011–01–P PO 00000 Frm 00027 Fmt 4702 Sfmt 4702 77981 DEPARTMENT OF HOMELAND SECURITY Coast Guard 33 CFR Parts 101 and 105 [Docket No. USCG–2013–1087] RIN 1625–AC15 Seafarers’ Access to Maritime Facilities Coast Guard, DHS. Notice of proposed rulemaking, notice of public meeting. AGENCY: ACTION: The Coast Guard proposes to require each owner or operator of a facility regulated by the Coast Guard to implement a system that provides seafarers and other individuals with access between vessels moored at the facility and the facility gate, in a timely manner and at no cost to the seafarer or other individual. Generally, transiting through a facility is the only way that a seafarer or other individual can egress to shore beyond the facility to access basic shoreside businesses and services, and meet with family members and other personnel that do not hold a Transportation Worker Identification Credential. This proposed rule would help to ensure that no facility owner or operator denies or makes it impractical for seafarers or other individuals to transit through the facility, and would require them to document their access procedures in their Facility Security Plans. This proposed rule would implement section 811 of the Coast Guard Authorization Act of 2010. DATES: Comments and related material must either be submitted to our online docket via https://www.regulations.gov on or before February 27, 2015 or reach the Docket Management Facility by that date. Comments sent to the Office of Management and Budget (OMB) on collection of information must reach OMB on or before February 27, 2015. The Coast Guard will hold a public meeting in Washington, DC to solicit comments on the proposals in this notice on January 23, 2015 from 9:00 a.m. to 12:00 p.m. The deadline to reserve a seat is January 16, 2015. ADDRESSES: You may submit comments identified by docket number USCG– 2013–1087 using any one of the following methods: (1) Federal eRulemaking Portal: https://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 SUMMARY: E:\FR\FM\29DEP1.SGM 29DEP1 asabaliauskas on DSK5VPTVN1PROD with PROPOSALS 77982 Federal Register / Vol. 79, No. 248 / Monday, December 29, 2014 / Proposed Rules 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), Office of Management and Budget. 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. The public meeting will be held at the Department of Transportation Headquarters, Oklahoma Room, 1200 New Jersey Avenue SE., Washington, DC 20590; the building telephone number is 202–366–1035. The meeting is open to the public. Seating is limited, so please reserve a seat as soon as possible, but no later than January 16, 2015. To reserve a seat, please email Mason.C.Wilcox@uscg.mil with the participant’s first and last name for all U.S. Citizens, and additionally official title, date of birth, country of citizenship, and passport number with expiration date for non-U.S. Citizens. To gain entrance to the Department of Transportation Headquarters building, all meeting participants must present government-issued photo identification (i.e., state issued driver’s license). If a visitor does not have a photo ID, that person will not be permitted to enter the facility. All visitors and any items brought into the facility will be required to go through security screening each time they enter the building. For information on facilities or services for individuals with disabilities or to request special assistance at the public meeting, contact LT Mason Wilcox at the telephone number or email address indicated under the FOR FURTHER VerDate Sep<11>2014 18:49 Dec 24, 2014 Jkt 235001 section of this notice. A live video feed of the meeting will be available upon request to LT Mason Wilcox at Mason.C.Wilcox@uscg.mil. FOR FURTHER INFORMATION CONTACT: If you have questions on this proposed rule, call or email LT Mason Wilcox, Cargo and Facilities Division (CG–FAC– 2), Coast Guard; telephone 202–372– 1123, email Mason.C.Wilcox@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: INFORMATION CONTACT 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. Executive Summary A. Purpose of the Regulatory Action 1. Need for the Regulatory Action 2. Legal Authority for the Regulatory Action B. Summary of the Major Provisions of the Regulatory Action C. Summary of Costs and Benefits IV. Background V. Discussion of Proposed Rule A. 33 CFR 105.200(b)(9) B. 33 CFR 105.237 C. 33 CFR 105.405 D. 33 CFR 101.112 (Federalism) E. Public Comments 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 https:// 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 (USCG–2013–1087), indicate the specific section of this PO 00000 Frm 00028 Fmt 4702 Sfmt 4702 document to which each comment applies, and provide a reason for each suggestion or recommendation. You may submit your comments and material online or by fax, mail, or hand delivery, but please use only one of these means. We recommend that you include your name and a mailing address, an email address, or a phone 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 https://www.regulations.gov and insert ‘‘USCG–2013–1087’’ in the ‘‘Search’’ box. Click on ‘‘Submit a Comment in the ‘‘Actions’’ column. 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, selfaddressed postcard or envelope. We will consider all comments and material received during the comment period and may change this proposed 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 https://www.regulations.gov and insert ‘‘USCG–2013–1087’’ in the ‘‘Search’’ box. Click ‘‘Search.’’ Click the ‘‘Open Docket Folder’’ in the ‘‘Actions’’ column. If you do not have access to the Internet, you may view the docket online by visiting 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. We have an agreement with the Department of Transportation to use the Docket Management Facility. C. Privacy Act Anyone can search the electronic form of comments received into any 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 plan to hold a public meeting regarding the proposals in this NPRM. The meeting will be held on January 23, 2015 from 9:00 a.m. to 12:00 p.m. The meeting will be held at the location E:\FR\FM\29DEP1.SGM 29DEP1 Federal Register / Vol. 79, No. 248 / Monday, December 29, 2014 / Proposed Rules indicated under the ADDRESSES section above. The deadline to reserve a seat is January 16, 2015. Information on reserving a seat for the meeting is provided under the ADDRESSES section above. II. Abbreviations CBP United States Customs and Border Protection CDC Certain Dangerous Cargoes CGAA 2010 Coast Guard Authorization Act of 2010 CFR Code of Federal Regulations COTP Captain of the Port DoS Declaration of Security DHS Department of Homeland Security FR Federal Register FSP Facility Security Plan ISPS Code International Ship and Port Facility Security Code MTSA Maritime Transportation Security Act of 2002 NMSAC National Maritime Security Advisory Committee NPRM Notice of Proposed Rulemaking RA Regulatory Analysis SCI Seamen’s Church Institute’s Center for Seafarers’ Rights SME Subject Matter Expert § Section symbol TWIC Transportation Worker Identification Credential U.S.C. United States Code III. Executive Summary asabaliauskas on DSK5VPTVN1PROD with PROPOSALS A. Purpose of the Regulatory Action Throughout the maritime sector, vessels arrive at Maritime Transportation Security Act of 2002 (MTSA)-regulated facilities for any number of commercial and other purposes.1 Vessels are operated by seafarers, who are individuals assigned to work on a vessel and who may be at sea for days, weeks, or months as part of their employment on that vessel. Generally, transiting through a MTSAregulated facility is the only way for seafarers to access the shore, and services, businesses, family members and friends, among other things, beyond the vessel and facility. Additionally, individuals providing services for seafarers or having another legitimate purpose for accessing the vessel, generally can only access a vessel moored at a MTSA-regulated facility by transiting through the facility. 1. Need for the Regulatory Action This regulatory action is necessary to implement section 811 of the Coast Guard Authorization Act of 2010 (Pub. L. 111–281, codified at 46 U.S.C. 70103 note) (CGAA 2010), which requires facility owners and operators to ensure 1 For purposes of this rule, ‘‘MTSA-regulated facility’’ is described in 33 CFR 105.105, and is detailed more fully below in the Background section. VerDate Sep<11>2014 18:49 Dec 24, 2014 Jkt 235001 shore access for seafarers and other individuals. Specifically, section 811 requires each MTSA-regulated facility to ‘‘provide a system for seamen assigned to a vessel at that facility, pilots, and representatives of seamen’s welfare and labor organizations to board and depart the vessel through the facility in a timely manner at no cost to the individual.’’ This regulatory action is necessary to help ensure that owners and operators of facilities regulated by the Coast Guard, under MTSA (Pub. L. 107–295, codified at 46 U.S.C. 70101 et seq.), provide seafarers assigned to vessels moored at the facility with the ability to board and depart vessels to access the shore through the facility in a timely manner and at no cost to the seafarer. Additionally, this regulatory action is necessary to help ensure that facility owners and operators provide the same no-cost access between a vessel and facility gate to other individuals with a legitimate purpose for accessing the vessel. These individuals include: representatives of seafarers’ welfare and labor organizations; port workers organizations; port engineers or superintendents; classification society surveyors; ship’s agents; pilots; and other authorized personnel performing work for a vessel moored at the facility, in accordance with the Declaration of Security (DoS)or other arrangement between the vessel and facility. This regulatory action applies to owners and operators of MTSAregulated facilities, which are facilities required by MTSA to implement national maritime security initiatives. One of the required security features is the provision of security measures for access control. Coast Guard accesscontrol regulations at 33 CFR 105.255 require MTSA-regulated facilities to control an individual’s access to the facility and designated secure areas within the facility unless that individual is either authorized to access that area or is escorted by someone who is authorized to access the area. Accordingly, facility owners and operators must consider the security implications of permitting seafarers and other individuals to transit through their facilities. Nonetheless, other Coast Guard regulations addressing MTSAregulated facility security requirements at 33 CFR 105.200(b)(9) require such facilities to ensure coordination of shore leave for these persons. 2. Legal Authority for the Regulatory Action Section 811 of the CGAA 2010 requires each MTSA-regulated facility, in its Facility Security Plan (FSP), to PO 00000 Frm 00029 Fmt 4702 Sfmt 4702 77983 ‘‘provide a system for seamen assigned to a vessel at that facility, pilots, and representatives of seamen’s welfare and labor organizations to board and depart the vessel through the facility in a timely manner at no cost to the individual.’’ The Secretary of Homeland Security (Secretary) is authorized under 46 U.S.C. 70124 to issue regulations necessary to implement 46 U.S.C. 70103. The Secretary delegated to the Commandant of the Coast Guard the authority to carry out the functions and exercise the authorities in 46 U.S.C. 70103 (DHS Delegation 0170.1(97)). Additionally, the Secretary is authorized under 33 U.S.C. 1226 to take certain actions to advance port, harbor, and coastal facility security. The Secretary is authorized under 33 U.S.C. 1231 to promulgate regulations to implement 33 U.S.C. chapter 26, including 33 U.S.C. 1226. The Secretary has delegated this authority to the Commandant of the Coast Guard (DHS Delegation 0170.1(70) and (71)). B. Summary of the Major Provisions of the Regulatory Action We propose to require each owner or operator of a MTSA-regulated facility to implement a system for providing seafarers and other individuals with access between vessels moored at the facility and the facility gate. Each owner or operator would be required to implement a system, within 1 year after publication of the final rule, that incorporates specific methods of providing access in a timely manner, at no cost to the individual, and in accordance with existing access control provisions in 33 CFR part 105. We also propose to require each owner or operator to ensure that the FSP includes a section describing the system for seafarers’ access. This rule would not affect the authority of the U.S. Customs and Border Protection (CBP) to inspect and process individuals seeking entry to the U.S. For those seafarers and other individuals subject to CBP’s authority, this rule would apply to facility owners and operators only after such seafarers and other individuals have been inspected, processed, and admitted to the U.S. by CBP. C. Summary of Costs and Benefits This rule would affect approximately 2,498 MTSA-regulated facilities. We estimate that the annualized cost at 7 percent would be $2.8 million and the total 10-year cost would be $19.9 million—also discounted at 7 percent. This rule would provide benefits to industry by ensuring that an annual average of 907 seafarers would be able E:\FR\FM\29DEP1.SGM 29DEP1 77984 Federal Register / Vol. 79, No. 248 / Monday, December 29, 2014 / Proposed Rules asabaliauskas on DSK5VPTVN1PROD with PROPOSALS to obtain shore leave access through the facilities, reducing regulatory uncertainty, conforming to the intent of the International Ship and Port Facility Security Code (ISPS Code), ensuring the safety, health, and welfare of seafarers, and providing regulatory flexibility to accommodate facility sizes and functions. Facilities have options as to which method of access they would prefer to use. IV. Background Under MTSA, the Coast Guard is authorized to regulate maritime facilities. For purposes of MTSA, the term ‘‘facility’’ means ‘‘any structure or facility of any kind located in, on, under, or adjacent to any waters subject to the jurisdiction of the United States.’’ 46 U.S.C. 70101(a)(2). Existing Coast Guard regulations at 33 CFR part 105 implementing MTSA apply to certain facilities including: waterfront facilities handling dangerous cargoes; 2 waterfront facilities handling liquefied natural gas 3 and liquefied hazardous gas; 4 facilities transferring oil or hazardous materials 5 in bulk; facilities that receive vessels certificated to carry more than 150 passengers; facilities that receive vessels subject to the International Convention for the Safety of Life at Sea, 1974 (SOLAS), Chapter XI; facilities that receive foreign cargo vessels greater than 100 gross register tons; generally, facilities that receive U.S. cargo and miscellaneous vessels greater than 100 gross register tons; and barge fleeting facilities that receive barges carrying, in bulk, cargoes regulated under the Coast Guard’s regulations regarding tank vessels or certain dangerous cargoes (CDCs).6 This rulemaking applies to the abovedescribed facilities regulated by the Coast Guard pursuant to the authority granted in MTSA. MTSA provides the Coast Guard with statutory authorities and mandates to advance the Coast Guard’s maritime security mission to detect, deter, disrupt, and respond to attacks and other disasters that might affect the United States, its territory, population, vessels, facilities, and critical maritime infrastructure. On July 1, 2003, the Coast Guard published a series of six temporary interim rules to promulgate maritime security requirements 2 ‘‘Dangerous cargoes’’ are defined at 33 CFR 126.3. 3 ‘‘Liquefied natural gas’’ is defined at 33 CFR 127.005. 4 ‘‘Liquefied hazardous gas’’ is defined at 33 CFR 127.005. 5 ‘‘Hazardous materials’’ are defined at 33 CFR 154.105. 6 ‘‘CDCs’’ are defined at 33 CFR 160.204. VerDate Sep<11>2014 18:49 Dec 24, 2014 Jkt 235001 mandated by MTSA. (See Implementation of National Maritime Security Initiatives, 68 FR 39240 (July 1, 2003).) One of the six interim rules specifically addressed security measures at maritime facilities. (See Facility Security, 68 FR 39315 (July 1, 2003)). The interim rule added part 105 ‘‘Maritime Security: Facilities’’ to subchapter H of Title 33 of the CFR. The interim rule required facility owners, operators, and security personnel to implement measures for controlling access to maritime facilities. In crafting the interim rule, we recognized both the need for facility access control measures, and the competing need for seafarers and other individuals to have the ability to board and depart vessels through the facilities. Thus, the interim rule included a requirement that each facility owner or operator ‘‘[e]nsure coordination of shore leave for vessel personnel or crew change-out, as well as access through the facility for visitors of the vessel (including representatives of seafarers’ welfare and labor organizations), with vessel operators in advance of a vessel’s arrival[.]’’ (See 68 FR 39317). On October 22, 2003, the Coast Guard published a final rule adopting, with changes, the July 1, 2003, interim rule on security measures at maritime facilities. (See Facility Security, 68 FR 60515 (Oct. 22, 2003)). Specifically, the final rule adopted the provision regarding coordination of shore leave, and also included an additional provision that permits facility owners or operators to ‘‘. . . refer to treaties of friendship, commerce, and navigation between the U.S. and other nations [when coordinating shore leave].’’ This new provision was added in response to public comments regarding the difficulty that some foreign seafarers have experienced when seeking shore leave. (See 68 FR 60520). The regulatory text adopted in the October 22, 2003, final rule remains unchanged today, although it has been relocated to 33 CFR 105.200(b)(9). Section 105.200(b)(9) provides, in part, that each facility owner or operator is currently required to ‘‘[e]nsure coordination of shore leave for vessel personnel or crew change-out, as well as access through the facility for visitors of the vessel (including representatives of seafarers’ welfare and labor organizations), with vessel operators in advance of a vessel’s arrival.’’ This current regulatory requirement for shore leave is bolstered by international agreement. The United States is a signatory to the ISPS Code, which sets forth international ship and port security measures. Like the Coast PO 00000 Frm 00030 Fmt 4702 Sfmt 4702 Guard’s implementation of MTSA that requires both secure facilities and shore leave, ISPS Code furthers facility security, but not at the expense of the seafarer. The preamble to ISPS Code (paragraph 11), ratified in December 2002, states: ‘‘Contracting Governments when approving ship and port FSPs should pay due cognizance to the fact that ship’s personnel live and work on the vessel and need shore leave and access to shore-based seafarer welfare facilities, including medical care.’’ In light of this international agreement, if the U.S. is known internationally for having facilities that do not provide shore leave access, other countries may consider denying shore leave access to U.S. seafarers while they are abroad. The Coast Guard understands that, currently, approximately 90 percent of MTSA-regulated facility owners and operators comply with the current shore leave requirements in 33 CFR 105.200(b)(9) and provide seafarers and other individuals access between the vessel and the facility gate.7 However, we have received complaints that some facility owners and operators are still denying seafarers and other individuals any access between the vessel and facility gate despite 33 CFR 105.200(b)(9) because of how some facility owners and operators implement or interpret that requirement. The apparent rationale for denying such access is that 33 CFR 105.200(b)(9) only requires coordination of shore leave if there is actual shore leave to coordinate, and there is no shore leave to coordinate if access to shore is denied altogether. We have received other complaints that some facilities comply with 33 CFR 105.200(b)(9) by permitting access to and from vessels, but make shore access impractical for seafarers and other individuals by placing extreme limitations on escort availability or by charging exorbitant fees. For example, we have received complaints of waittimes up to 3-hours for TWIC-holding facility personnel or taxi drivers to arrive and escort seafarers through a facility. The seafarers seeking access are often TWIC-holders themselves, and there is only a short distance between the vessel and the facility gate, the span of which is visible to security guards at the gate. Nonetheless, some facilities have prohibited TWIC-holding seafarers from walking between the vessel and facility gate. We have received other complaints of facilities charging $400– $500 (in addition to requiring the vessel agent to independently hire its own 7 Based on the Seamen’s Church Institute’s (SCI) Center for Seafarers’ Rights surveys from 2006 to 2014. E:\FR\FM\29DEP1.SGM 29DEP1 asabaliauskas on DSK5VPTVN1PROD with PROPOSALS Federal Register / Vol. 79, No. 248 / Monday, December 29, 2014 / Proposed Rules TWIC-holding escorts) before allowing seafarers ashore. We have also received complaints of facilities completely denying seafarers the ability to disembark a vessel to go ashore. To address these complaints, the Coast Guard issued guidance in October 2008 (ALCOAST 529/08) and October 2009 (ALCOAST 575/09), advising Coast Guard Captains of the Port (COTPs) to encourage facility owners and operators to remedy inadequate access issues. Subsequent to those efforts, we also conducted a joint evaluation of seafarers’ access issues with CBP, culminating in additional Coast Guard guidance instructing COTPs to compile lists of facilities identified as deficient with respect to seafarers’ access. In January 2010, the COTPs had reviewed 62 percent of all FSPs and reported that 4 percent lacked adequate seafarers’ access provisions. While the Coast Guard was addressing these complaints, Congress mandated seafarers’ access in section 811 of the CGAA 2010. This mandate requires each FSP to ‘‘provide a system for seamen assigned to a vessel at that facility, pilots, and representatives of seamen’s welfare and labor organizations to board and depart the vessel through the facility in a timely manner at no cost to the individual.’’ The National Maritime Security Advisory Committee (NMSAC) also considered section 811 in a working group that met on March 22 and May 3, 2011, resulting in a resolution containing recommended definitions for the statutory terms ‘‘system,’’ ‘‘timely,’’ and ‘‘no cost to the individual.’’ The NMSAC resolution provided the Coast Guard with useful conceptual information. Although the Coast Guard did not adopt the exact text of the NMSAC definitions in this NPRM, the proposals in this NPRM are consistent with the NMSAC recommendations. The NMSAC resolution is available for viewing in the public docket for this rulemaking. This proposed rule would implement section 811 by amending current regulations to comply with statutory requirements for each facility owner or operator to provide seafarers associated with a vessel moored at the facility, and other individuals, access between the vessel and facility gate in a timely manner and at no cost to the seafarer or other individual. This rule would not affect the authority of CBP to inspect and process individuals seeking entry to the U.S. For those seafarers and other individuals subject to CBP’s authority, this rule would apply to facility owners and operators only after such seafarers and other individuals have been inspected, VerDate Sep<11>2014 18:49 Dec 24, 2014 Jkt 235001 processed, and admitted to the U.S. by CBP. V. Discussion of Proposed Rule The following discussion explains the proposed changes to 33 CFR part 105 that would implement section 811. In addition to the proposed changes discussed below, we propose several minor technical amendments to 33 CFR 105.200 that would clarify acronyms and improve readability, but are not intended to make any substantive changes. Finally, we propose a provision on the Federalism issues associated with the Coast Guard’s maritime security regulations in 33 CFR part 105. A. 33 CFR 105.200(b)(9) We propose to amend 33 CFR 105.200(b)(9), which contains the existing seafarers’ access requirements. This amendment would require each facility owner or operator to coordinate shore leave in accordance with new specific requirements implementing section 811 set forth in 33 CFR 105.237. This cross-reference to the proposed specific requirements for seafarers’ access would remove any possible ambiguity in, or opportunity for misinterpretation of, the existing seafarers’ access requirements in 33 CFR 105.200(b)(9). We also propose to replace the current parenthetical explanation of the term ‘‘visitors’’ in § 105.200(b)(9) with a reference to the proposed list of ‘‘individuals covered’’ in proposed § 105.237. Currently, paragraph (b)(9) requires access through a facility for shore leave for vessel personnel, crew change-out, and ‘‘visitors to the vessel (including representatives of seafarers’ welfare and labor organizations).’’ Because section 811 also specifies individuals that must be provided access through a facility, we propose to incorporate in 33 CFR 105.237(b) the individuals covered under the existing seafarers’ access requirement in current 33 CFR 105.200(b)(9) with the new proposed list of individuals covered under section 811. B. 33 CFR 105.237 We propose to add this new section, implementing section 811, which would require each facility owner or operator to implement a system for providing access to and from vessels moored at the facility and the facility gate. 33 CFR 105.237(a) Proposed paragraph (a) would set forth the general requirements for a system of seafarers’ access, which incorporates the language of section PO 00000 Frm 00031 Fmt 4702 Sfmt 4702 77985 811. Each owner or operator would be required to implement a system that incorporates specific methods of providing access in a timely manner, at no cost to the individual, and in accordance with the provisions in 33 CFR part 105. Part 105 sets forth facility security requirements, and facility owners and operators would have to provide seafarers’ access within these facility security requirement parameters. The proposed rule would provide facility owners and operators flexibility to implement a system to provide seafarers’ access that is tailored to each facility. We propose to require implementation of the system within 1 year after publication of the final rule to provide facility owners and operators time to tailor a system specific to the facility. 33 CFR 105.237(b) Section 811 lists the individuals to whom Congress intended facility owners and operators provide access through their facilities. Specifically, section 811 requires ‘‘[e]ach Facility Security Plan . . . to provide a system for seamen assigned to a vessel at that facility, pilots, and representatives of seamen’s welfare and labor organizations to board and depart the vessel through the facility. . . .’’ Additionally, current 33 CFR 105.200(b)(9) requires access through a facility for shore leave for vessel personnel, crew change-out, and ‘‘visitors to the vessel (including representatives of seafarers’ welfare and labor organizations).’’ Because these two lists overlap, and both identify the individuals to whom facility owners or operators must provide access to and from vessels, we propose to provide one list of individuals covered by seafarers’ access requirements. Proposed paragraph (b), ‘‘Individuals covered’’, would list individuals covered by seafarers’ access requirements. The proposed paragraph (b) lists: • Seafarers assigned to a vessel moored at the facility; • vessel pilots and other authorized personnel performing work for a vessel moored at a facility (to cover individuals that are not considered seafarers or pilots); • representatives of seafarers’ welfare and labor organizations; and • other authorized individuals, in accordance with a DoS or other arrangement between the vessel and facility, to cover visitors to a vessel other than representatives of seafarers’ welfare and labor organizations. E:\FR\FM\29DEP1.SGM 29DEP1 77986 Federal Register / Vol. 79, No. 248 / Monday, December 29, 2014 / Proposed Rules The categories of ‘‘other authorized personnel’’ and ‘‘other authorized individuals’’ would be broad categories to cover individuals such as port workers organizations, port engineers and superintendents, technicians, port agents, new crew (not yet technically assigned to the vessel), marine insurance writers, cargo surveyors, and family members of the seafarers and other vessel personnel. We propose the provision covering any other authorized individuals in order to provide flexibility that would enable the vessel and facility owners and operators to work directly with each other regarding individuals authorized to transit between the vessel and facility gate. asabaliauskas on DSK5VPTVN1PROD with PROPOSALS 33 CFR 105.237(c) Section 811 requires facility owners or operators to provide seafarers’ access in a ‘‘timely’’ manner. Due to the wide variety of facility types, sizes, and the nature of their operations, this rulemaking does not propose a single regulatory definition of ‘‘timely’’ access that would apply to all facilities. Instead, we propose under paragraph (c) to require each facility owner or operator to provide access without unreasonable delay, subject to review by the COTP. Proposed paragraph (c) also lists factors the facility owners or operators would have to consider when determining what ‘‘timely access without unreasonable delay’’ means for each vessel moored at its facility. The COTP would review each FSP to ensure that the facility owner or operator has appropriately considered the enumerated factors. The enumerated factors in proposed paragraph (c) relate to the amount of time that is reasonable for individuals to wait for access through the facility and the methods that the facility owner or operator would use for providing such access. The factors are: • The length of time a vessel is scheduled to remain in port. For example, if a ship is in port for 6 hours, the COTP could determine that a 2-hour wait for access each way would be unreasonable. If the ship is in port for 2 weeks, the COTP could determine that a 2-hour wait for access is reasonable. • The distance of egress/ingress between the vessel and facility gate. This distance can influence the appropriate method(s) of providing timely access between vessel and facility gate (e.g., van, taxi, pedestrian walkway, escort, etc.). For example, if the distance between the vessel and facility gate is less than the average city block, the COTP could determine that it is unreasonable to require individuals to VerDate Sep<11>2014 18:49 Dec 24, 2014 Jkt 235001 wait for a taxi instead of using a pedestrian walkway. • The vessel’s watch schedules. A vessel’s watch schedule is relevant to providing timely access because a vessel crew’s operations are based on various watch-hour rotations to ensure the safety and security of the vessel. The facility owner or operator would be required to take the vessel’s watch schedule into account in development of an access plan that ensures vessel crews have access to shore leave during the time they are not on watch. • A facility’s safety and security procedures required by law. These are relevant to providing timely access because they can determine the appropriate method(s) of providing timely access between a vessel and facility gate. For example, a pedestrian walkway might not be appropriate at a large container facility with extensive heavy equipment operations if the walkway would put pedestrians in the pathway of those operations, causing safety concerns for both pedestrians and operations. Similarly, the security footprint of a facility that handles CDCs might also preclude the use of pedestrian walkways as a method for providing access between a vessel and the facility gate due to the hazardous nature of the environment for pedestrians and any security concerns for the cargo. • Any other factors specific to the vessel or facility that could affect access to and from the vessel. There may be other factors specific to the vessel or facility that could be relevant to providing timely access, such as bunkering and stores operations that may limit movement throughout the facility for safety. The COTP would review these other factors included in the FSP and how the facility considers them in determining how to provide shore access in a timely manner. Defining timely access without unreasonable delay through the application of factors would provide flexibility to account for a diverse regulated population of maritime facilities. This approach would also provide appropriate COTP oversight to verify that ‘‘timeliness’’ is reasonable in each case. 33 CFR 105.237(d) Proposed paragraph (d) of 33 CFR 105.237 would require each facility owner or operator to provide seafarers’ access using one or more specific methods. The owner or operator would be required to either choose one of the listed methods or combine multiple methods to create an appropriate system for that facility. Whichever method they PO 00000 Frm 00032 Fmt 4702 Sfmt 4702 choose, facility owners or operators would ultimately be responsible for ensuring that all individuals covered by the regulations are provided timely access between the vessel and the facility gate. In order to provide timely access, facility owners and operators would choose their own method of providing that access. They could choose a method listed in proposed paragraph (d) or they could choose any other method, provided that the COTP approves it. The methods listed in proposed paragraph (d) are: • On-call or regularly scheduled escorts.8 On-call escorting would require the facility to provide a means of communication, such as a phone number or other means of communication that seafarers could call to arrange access, and the facility would dispatch one or more escorts upon request. Regularly scheduled escorts could operate on a set schedule or at specific times pre-arranged between facility and vessel personnel based on the vessel’s crew watch changes. Facility owners and operators would be permitted to choose the option(s) most suitable to their specific business operations so long as they are sufficiently timely. • Taxi services to provide escorted access through the facility. If a facility chose to permit access between the vessel and the facility gate only via taxi, regardless of whether the seafarer required a taxi beyond the facility gate, then that taxi fare would be considered a cost that the owner or operator imposes on the seafarer as a surcharge or tax on shore access. The owner or operator would be required to either pay that cost or provide an alternative method of timely, no-cost access through the facility for seafarers and other individuals. When the seafarer uses the taxi for travel to destinations beyond the facility boundaries (i.e., not solely for transit between the vessel and the facility gate), the seafarer would be responsible for paying the standard, local taxi fare to their destination, including the portion of transit between the vessel and facility gate, provided that there is no additional surcharge for transiting the facility. • Seafarers’ welfare organizations to facilitate the access, such as acting as escorts. The Coast Guard understands some seafarers’ welfare organizations currently provide this service at facilities, and we do not want to disrupt 8 If access is provided through secure areas of the facility, the Transportation Worker Identification Credential (TWIC) requirements in 33 CFR 101.514 would apply. E:\FR\FM\29DEP1.SGM 29DEP1 Federal Register / Vol. 79, No. 248 / Monday, December 29, 2014 / Proposed Rules asabaliauskas on DSK5VPTVN1PROD with PROPOSALS existing arrangements successfully providing shore access. • Monitored pedestrian routes between the vessel and facility gate. Monitored pedestrian routes could include side-by-side escorting or other monitoring sufficient to observe whether the escorted individual is engaged in activities other than those for which escorted access has been granted. (See 33 CFR 101.105 ‘‘Escorting’’). The Coast Guard notes that NVIC 03–07 provides guidance on monitoring protocols. Section 811 places the requirement to provide access on the facility owner or operator. Accordingly, facility owners and operators would not be permitted to rely solely on third parties, such as taxi services or seafarers’ welfare organizations, to provide access between the vessel and facility gate. Taxi services may not always be available to provide timely access to all of the seafarers at a given facility. Similarly, the seafarers’ welfare organizations are philanthropic organizations that voluntarily provide important services to seafarers, and may or may not have the resources to provide timely access to all of the seafarers at a facility. Owners and operators relying on one or more third parties as their primary method of providing the required access would also be required to include a back-up method of providing timely, no-cost access provisions in their FSPs. Facility owners and operators could also choose to develop their own method(s) for providing access between the vessel and facility gate, apart from the listed methods. In all cases, the method(s) included in the FSP would be subject to COTP review and approval. 33 CFR 105.237(e) Section 811 specifically requires facility owners or operators to provide seafarers’ access at no cost to the individual. We propose to codify that requirement in 33 CFR 105.237(e). The Coast Guard has received complaints indicating that some facility owners and operators currently provide access through their facilities, but only do so by allowing taxis to shuttle seafarers between the vessel and the facility gates for a specific fee. Such an arrangement would not meet the requirement in Section 811 or in proposed § 105.237(e) to provide access at no cost. 33 CFR 105.237(f) Section 811 specifically requires that approved FSPs must provide a system for seafarers’ access. We propose to require facility owners or operators to describe the seafarers’ access systems in VerDate Sep<11>2014 18:49 Dec 24, 2014 Jkt 235001 their FSPs. In the FSP, owners or operators would be required to document the: (1) Location of transit areas used for providing seafarers’ access; (2) duties, and number of facility personnel assigned to each duty, associated with providing seafarers’ access; (3) methods of escorting and/or monitoring individuals transiting through the facility; (4) agreements or arrangements between the facility and private parties, nonprofit organizations, or other parties to facilitate seafarers’ access; and (5) maximum length of time an individual would wait for seafarers’ access. Documenting this information in the FSP would ensure that the facility’s system for seafarers’ access is described in sufficient detail for facility personnel to implement and for Coast Guard personnel, specifically COTPs, to confirm regulatory compliance. In accordance with 33 CFR 105.410 (for facilities submitting an initial FSP) or 33 CFR 105.415 (for facilities amending an existing approved FSP), which already require that all FSP updates be submitted for COTP approval at least 60 days before any operational change, we propose requiring facilities to update their FSPs and submit them for COTP review a minimum of 60 days before implementing any operational changes that would be necessitated by this rule. Because we propose requiring implementation of the system within 1 year after publication of the final rule under proposed § 105.237(a), all FSP updates would need to be submitted no later than 10 months after the publication of the final rule. C. 33 CFR 105.405 We propose updating 33 CFR 105.405, which dictates the format and content of the FSP, to add the proposed requirement that an FSP include a section on the facility’s system for seafarers’ access. D. 33 CFR 101.112 (Federalism) A Presidential Memorandum, dated May 20, 2009, entitled ‘‘Preemption,’’ 9 requires an agency to codify a preemption provision in its regulations if the agency intends to preempt State law. We propose to add a new section 33 CFR 101.112, which would provide a statement regarding the preemption principles that apply to 33 CFR part 105. We believe the field-preemption Federalism principles articulated in United States v. Locke and Intertanko v. Locke 10 apply to 33 CFR part 105, at 9 74 FR 24693. U.S. 89, 120 S.Ct. 1135 (March 6, 2000). 10 529 PO 00000 Frm 00033 Fmt 4702 Sfmt 4702 77987 least insofar as a State or local law or regulation applicable to MTSAregulated facilities for the purpose of their protection would conflict with a Federal regulation (i.e., it would either actually conflict or would frustrate an overriding Federal need for uniformity). E. Public Comments We invite the public to comment on any part of this proposed rule and the assumptions and estimates used in the ‘‘Preliminary Regulatory Analysis (RA) and Initial Regulatory Flexibility Analysis,’’ which is available in the public docket for this rulemaking. Specifically, we request comments on the following: 1. We request comments on whether 1 year is an appropriate timeframe to implement the system that would be required under this proposed rule. 2. In formulating the proposed 33 CFR 105.237(b) ‘‘Individuals covered’’, we sought to include the individuals to whom facility owners or operators should be required to provide timely, no-cost access through their facilities based on the language of section 811 and the existing seafarers’ access requirements in 33 CFR 105.200(b)(9). We request comments on whether this proposal provides an appropriately inclusive list of individuals who should be allowed to access a vessel, or whether the list is too broad or too narrow. 3. As stated above in this preamble, instead of proposing a single regulatory definition of ‘‘timely access’’ that would apply to all facilities, we propose factors for facility owners and operators to consider (and document in the FSP) so that they provide ‘‘timely access’’ without unreasonable delay. We request comments on whether this approach provides the necessary flexibility for a diverse regulated population, while also providing COTP oversight to ensure that ‘‘timely access’’ is reasonable in each case. 4. We request comments on whether the proposed 33 CFR 105.237(d) provides an appropriately inclusive list of methods for providing seafarers’ access, or whether there any other methods that should be on the list. 5. We request comments on our estimate, discussed below under Section VI. Regulatory Analyses, that there is a 10.3 percent non-compliance rate of MTSA-regulated facilities with respect to providing seafarers’ access. 6. We request comments on our cost estimates, discussed below under Section VI. Regulatory Analyses, for FSP amendments and changes to facility operations to implement the proposed rule’s provisions. E:\FR\FM\29DEP1.SGM 29DEP1 77988 Federal Register / Vol. 79, No. 248 / Monday, December 29, 2014 / Proposed Rules 7. We request comments on the regulatory alternatives to implementing section 811 discussed below under Section VI. Regulatory Analyses. VI. Regulatory Analyses We developed this proposed rule after considering numerous statutes and executive orders related to rulemaking. Below we summarize our analyses based on these statutes or executive orders. Details regarding the regulatory analyses are located in the preliminary Regulatory Analysis (RA), which can be found by following the directions in paragraph I.B. above. A. Regulatory Planning and Review Executive Orders 13563 (‘‘Improving Regulation and Regulatory Review’’) and 12866 (‘‘Regulatory Planning and 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. The economic impact of this rulemaking is not economically significant (i.e., the rulemaking has an annual effect on the economy of $100 million or more a year). This proposed rule is not a ‘‘significant regulatory action’’ under section 3(f) of Executive Order 12866, and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Order. The rule has not been reviewed by the Office of Management and Budget. Nonetheless, we developed an analysis of the costs and benefits of the proposed rule to ascertain its probably impacts on industry. We consider all estimates and analysis in this RA to be preliminary and subject to change in consideration of public comments. Section 811 of the CGAA 2010 requires each MTSA-regulated facility, in its FSP, to ‘‘provide a system for seamen assigned to a vessel at that facility, pilots, and representatives of seamen’s welfare and labor organizations to board and depart the vessel through the facility in a timely manner at no cost to the individual.’’ The CGAA 2010 builds on the requirements set forth under 33 CFR 105.200(b)(9), which stipulates that each facility owner or operator is currently required to ‘‘[e]nsure coordination of shore leave. . . .’’ We propose to require each owner or operator of a MTSAregulated facility to implement a system for providing seafarers and other individuals with access between vessels moored at the facility and the facility gate. Each owner or operator would be required to implement a system within 1 year after publication of the final rule that incorporates specific methods of providing access in a timely manner, at no cost to the individual, and in accordance with existing access control provisions in 33 CFR part 105. We also propose to require each owner or operator to ensure that the FSP includes a section describing the system for seafarers’ access. This proposed rule proposes six methods of providing access as acceptable means of implementing a system of access. They are as follows: (1) Regularly scheduled escort between the vessel and the facility gate that conforms to the vessel’s watch schedule as agreed upon between the vessel and facility; (2) An on-call escort between the vessel and the facility gate; (3) Arrangements with taxi services; (4) Arrangements with seafarers’ welfare organizations to facilitate the access; (5) Monitored pedestrian access routes between the vessel and facility gate; or (6) A method, other than those described above, approved by the COTP. If a MTSA-regulated facility provides a method of access via third party (e.g., taxi service, seafarers’ welfare organization, etc.), they would need to have a ‘‘back-up’’ method so as to ensure access is provided in a timely manner, provided it is approved by the COTP. Table 1 provides a summary of the affected population, costs, and benefits to this proposed rule. TABLE 1—SUMMARY OF AFFECTED POPULATION, COSTS, AND BENEFITS Category Notice of proposed rulemaking Applicability ......................................................... Owners or operators of a facility regulated by the Coast Guard are required to implement a system that provides seafarers and other individuals with access between the shore and vessels moored at the facility. 2,498 MTSA-regulated Facilities. Seafarers and other covered individuals that would receive access under the proposed rule. 10-year: $19.9 million. Annualized: $2.8 million. Provides access through facilities for an average of 907 seafarers and other covered individuals that were otherwise denied access annually. Reduces regulatory uncertainty by harmonizing regulations with Sec. 811 of Pub. L. 111–281. Conforms with the intent of the ISPS Code. Ensures the safety, health, and welfare of seafarers. Affected population ............................................. Total Cost to Industry and Government * (7% discount rate). Benefits ............................................................... asabaliauskas on DSK5VPTVN1PROD with PROPOSALS * Please refer to the preliminary RA in the docket for details. A summary of the RA follows: Affected Population The effect of the proposed rule would be to require facilities regulated by MTSA to implement a system of access for seafarers and other individuals, and to document that system in their FSPs. Many facilities already have a system that would likely satisfy this proposed VerDate Sep<11>2014 18:49 Dec 24, 2014 Jkt 235001 rule, but they would still need to update their FSPs to document that system. Other facilities would have to both implement a system and update their FSPs to document it. Based on information about MTSAregulated facilities captured in the Coast Guard’s internal database, the Marine Inspection, Safety and Law Enforcement (MISLE), there are 2,498 facilities PO 00000 Frm 00034 Fmt 4702 Sfmt 4702 affected by this rulemaking. We anticipate that all (2,498 facilities) would need to modify their FSPs within 10 months 11 of publication of the final 11 As explained above in the discussion of proposed § 105.237(f), the deadline to implement operational changes resulting from this rule would be one year after the final rule is published. Since Coast Guard regulations already require FSP amendments to be submitted for Coast Guard approval no later than 60 days before implementing E:\FR\FM\29DEP1.SGM 29DEP1 Federal Register / Vol. 79, No. 248 / Monday, December 29, 2014 / Proposed Rules rule to document their system of providing access for seafarers and other individuals. Any needed changes in subsequent years would be accomplished under existing updates to FSPs or occurs as facilities changes ownership.12 In addition to documenting a system of access in their FSPs, some facilities may need to modify operations to implement that system. Based on a 2011 survey conducted by the Seamen’s Church Institute’s (SCI) Center for Seafarers’ Rights and discussions with the SCI, we estimate that 10.3 percent of the facilities would need to update their existing systems of access to conform to the standards of this rulemaking.13 We used the 10.3 percent as our estimated non-compliance rate. At this rate, 257 out of the total 2,498 facilities affected by this rulemaking would need to develop and implement a system of 77989 access through the facility for seafarers and other individuals and document it in their FSPs. Costs There are two main types of costs: administrative and operational. Table 2 provides the outline of the proposed regulations and the effects that these changes will have on the affected population. TABLE 2—COST MATRIX Section(s) and Descriptions Population Costs and Benefits § 101.112 ............................................................. Adds Federalism language ... All facilities ............................. § 105.200(b)(1)–(6) .............................................. Rewords language to clarify by adding the word ‘‘personnel’’ and removing the words ‘‘within that structure‘‘.. Spells out acronyms. ............. Rewords language to clarify .. Replaces the word, ‘‘coordination’’ with ‘‘implementation of a system, in accordance with § 105.237 of this subpart, coordinating‘‘. Refers to § 105.237(b)(4). Adds reference to § 105.255(c). All facilities ............................. No cost because it deals with the interaction between the federal government and states. No cost because it clarifies parameter of security personnel It clarifies the acronyms It is a grammatical change only. All facilities ............................. All seafarers and covered individuals that would receive access under this rule. Cost to implement a system of access for seafarers and covered individuals going through a facility. All facilities ............................. All seafarers and covered individuals that would receive access under this rule. Non-conforming facilities ....... All seafarers and covered individuals that would receive access under this rule. No cost. Narrows reference from entire section to paragraph (c). All facilities ............................. All seafarers and covered individuals that would receive access under this rule. All facilities ............................. Cost may be passed onto the vessel. § 105.200(b)(9) .................................................... § 105.200(b)(14) .................................................. § 105.237(a)–(d) .................................................. § 105.237(e) ......................................................... § 105.237(f) .......................................................... asabaliauskas on DSK5VPTVN1PROD with PROPOSALS § 105.405(a)(9) .................................................... (a) Facilities must have procedures in place to allow access through the facility. (b) Provides list of seafarers and covered individuals. (c) Timing of access is dependent on COTP. (d) Outlines methods of access. (d)(3) Individual cost is limited to local taxi fare. Stipulates no cost to the individual. Stipulates that a system of access must be documented in the FSP. Specifies the location in the FSP where facilities must outline escorting procedures. All facilities ............................. Cost for non-conforming facilities to implement a system of access for seafarers and covered individuals going through a facility. Paperwork cost to add description in the FSP. Paperwork cost to add description in the FSP. All MTSA-regulated facilities are expected to incur administrative costs and would need to update their FSPs to document their system of access. While all MTSA-regulated facilities describe a system of access, the description may not contain all of the proposed elements. Thus, we determined that all facilities’ FSPs would undergo modification to incorporate a description of seafarers’ access. operational changes, the deadline for submitting FSP amendments resulting from this rule would be 10 months after publication of the final rule. 12 The number of FSPs have been decreasing from 2004 to 2014. Therefore, we did not cost out changes to ownership. 13 Based on the 2011 SCI report 26 ports were surveyed. From those 26 ports, 17 terminals would not conform to the requirement of this proposed rule (pg. 3–4). Upon further investigation by USCG, the Seamen’s Church Institute stated that in 2011, they reviewed 165 terminals. The non-compliance rate is 17 terminals out compliance ÷ 165 terminals surveyed = 10.3 percent non-compliance rate. VerDate Sep<11>2014 18:49 Dec 24, 2014 Jkt 235001 PO 00000 Frm 00035 Fmt 4702 Sfmt 4702 E:\FR\FM\29DEP1.SGM 29DEP1 77990 Federal Register / Vol. 79, No. 248 / Monday, December 29, 2014 / Proposed Rules have a ‘‘back-up’’ system in place if using the seafarers’ welfare organization. We did not assume a backup method for the other since methods 1, 2, or 5 does not deal with third parties, and because we assume that facilities would have a sufficient number of taxis available for method 3. For the purposes of this RA, we focus on the first five methods as primary methods of access, because facilities would choose the sixth option only if it had higher value (e.g., lower costs) than one of the first five. Based on information from Coast Guard internal subject matter experts (SMEs) and the costs associated with implementing the various methods, we expect that a small percentage of facilities are large enough, or carry out dangerous or hazardous operations, to warrant the purchase of a van. Some facilities would opt to use taxi service, as it provides flexibility to the facility as a relatively cheaper alternative. Some 2,498 Population * (($63.40 wage 14 * 6 hours 15) + $6.07 stationery 16) = $965,402 We estimate that 257 facilities (10.3 percent of 2,498 facilities) would be expected to incur operational costs and would also need to modify their systems of access to conform to their modified FSPs. The proposed rule provides six methods for providing access: (1) Regularly scheduled shuttle service, (2) on-call service, (3) taxi service, (4) arrangements with the seafarers’ welfare organizations, (5) monitoring of pedestrian routes, or (6) any other system, provided that the method is approved by the COTP. This proposed rule would require a ‘‘back-up’’ method of access if a facility chooses a method that relies on a third party. The back-up method would be how the facility ensures access if the third party fails to provide access. For the purposes of this RA, we assume that facilities would would choose to use a seafarers’ welfare organization (Method 4) to provide transit, but due to these organizations’ limited resources, facilities would not be able to solely depend on a seafarers’ welfare organization to provide escort. We assume that most facilities would choose monitoring (Method 5) since the majority of them are small 17 enough that existing security guards and/or monitoring equipment in place would be sufficient. However, if facilities choose this method, we anticipate 1 hour of training annually to review security protocol in the event that a seafarer leaves the designated passageway. Table 3 provides the number of affected facilities and the per-facility cost to modify operations to include a system of access and to document it in their FSPs. Costs are broken down into initial cost to affected populations and then annually recurring costs.18 TABLE 3—PER-FACILITY ADMINISTRATIVE AND OPERATIONAL COSTS [By method] Cost description Population Cost Per Facility (FSP Documentation) ...................................................................................... Cost Per Facility Operations: Method 1: Regularly Scheduled Shuttle ............................................................................... Method 2: On-call Service .................................................................................................... Method 3: Taxi ...................................................................................................................... Methods 4: Seafarers’ Welfare Organization ....................................................................... Method 5: Monitoring of Pedestrian Routes ........................................................................ Method 6: Alternate means of access, approved by the COTP .......................................... Table 4 provides the key unit costs for the methods. Please refer to the Initial cost Annual recurring cost 2,498 386 0 26 51 51 26 103 N/A 63,759 52,154 7,619 3,208 181 N/A 35,655 24,050 3,208 1,203 181 N/A standalone RA for the calculations of the costs by method. TABLE 4—KEY INPUTS FOR METHODS 1–5 Cost Security guard wage ............ Cargo and Freight Agents Wage. Managers ............................. Secretaries ........................... Van ....................................... $19.41 ................................ $30.18 ................................ https://www.bls.gov/oes/2012/may/oes339032.htm. https://www.bls.gov/oes/2012/may/oes435011.htm. $63.35 ................................ $35.81 ................................ ranges from $25,060 to $35,620. Cost of Gas .......................... asabaliauskas on DSK5VPTVN1PROD with PROPOSALS Key input $4.04 .................................. Average Miles per Gallon .... Driving Speed ...................... 13 ....................................... ranges from 15 mph to 30 mph. https://www.bls.gov/oes/2012/may/oes113071.htm. https://www.bls.gov/oes/2012/may/oes436011.htm. https://www.ford.com/commercial-trucks/e-serieswagon/models/. https://www.toyota.com/sienna/trims-prices.html. https://www.gm.com/vehicles/browseByType.html#/?price=120000&brand=all&type= van&appState=list. https://fuelgaugereport.aaa.com/?redirectto=https://fuelgaugereport.opisnet.com/ index.asp. https://www.fueleconomy.gov/feg/byclass/Vans__Passenger_Type2012.shtml. https://www.panynj.gov/port/pdf/highway-speed-limits-2008.pdf. https://www.massport.com/port-of-boston/Conley%20Terminal/TerminalProcess.aspx. https://www.fmtcargo.com/terminal_guides/fmt_guide_burns_harbor.pdf. https://www.fmtcargo.com/terminal_guides/fmt_guide_cleveland.pdf. 14 See Chapter 3.1 of the standalone RA for information regarding wages. 15 In COI 1627–007, we estimate that it takes 100 hours to create a new FSP made up of 18 sections. We estimate that it would take 6 hours (100 hours VerDate Sep<11>2014 18:49 Dec 24, 2014 Jkt 235001 Source ÷ 18 sections = 5.55 hours) to create a new section in the FSP. 16 Executive Administrative Assistant hourly wage $34.81 * 0.1667 hours + $0.10 paper = $6.07. See chapter 3.1 of the standalone RA for information regarding wages. PO 00000 Frm 00036 Fmt 4702 Sfmt 4702 17 Based on information from Coast Guard facility inspectors nationwide due to the fact that MISLE and other Coast Guard databases do not capture the physical sizes of these facilities. 18 Please refer to table 5 for 10-year breakdown in total cost. E:\FR\FM\29DEP1.SGM 29DEP1 77991 Federal Register / Vol. 79, No. 248 / Monday, December 29, 2014 / Proposed Rules TABLE 4—KEY INPUTS FOR METHODS 1–5—Continued Key input Cost Driving Time ......................... TWIC .................................... Taxi Driver Wage ................. Miles to an enrollment Center. Average Commute Speed ... Mileage Reimbursement Rate. Source 0.33 hours .......................... $401.00 .............................. $17.92 ................................ 100 miles ............................ https://www.fmtcargo.com/terminal_guides/fmt_guide_port_manatee.pdf. https://www.fmtcargo.com/terminal_guides/fmt_guide_lake_charles.pdf. https://www.fmtcargo.com/terminal_guides/fmt_guide_milwaukee.pdf. SME. https://www.tsa.gov/what_we_do/layers/twic/twic_faqs.shtm#twic_process. https://www.bls.gov/oes/2012/may/oes533041.htm. STCW. 28.87 .................................. $0.56 .................................. https://nhts.ornl.gov/2009/pub/stt.pdf. https://www.gsa.gov/portal/content/100715. Table 5 provides the total costs over 10 years, to include the initial cost and annually recurring costs. TABLE 5—SUMMARY OF INDUSTRY COSTS 10-YEAR, 7 AND 3 PERCENT DISCOUNT RATES Undiscounted cost Year Year Year Year Year Year Year Year Year Year Annualized 7% discount cost Annualized 3% discount cost 1 .............................................................................................................................. 2 .............................................................................................................................. 3 .............................................................................................................................. 4 .............................................................................................................................. 5 .............................................................................................................................. 6 .............................................................................................................................. 7 .............................................................................................................................. 8 .............................................................................................................................. 9 .............................................................................................................................. 10 ............................................................................................................................ $5,773,631 2,367,130 2,367,130 2,367,130 2,367,130 2,367,130 2,367,130 2,367,130 2,367,130 2,367,130 $5,395,917 2,067,543 1,932,283 1,805,872 1,687,731 1,577,319 1,474,130 1,377,691 1,287,562 1,203,329 $5,605,467 2,231,247 2,166,259 2,103,164 2,041,907 1,982,434 1,924,693 1,868,634 1,814,208 1,761,367 Total .......................................................................................................................... 27,077,801 19,809,376 23,499,382 Annualized ....................................................................................................................... ............................ 2,820,410 2,754,844 Based on information from the SMEs, we estimate that it would take between 15 and 30 minutes for an E–4, E–5, or E–6 to review the updated FSP. We calculate the one-time cost to review all FSPs to be as follows: 2,498 FSPs * $48.33 wage rate/hour * 0.5 hours = $60,364 Table 6 provides the 10-year cost to both the government and industry. TABLE 6—SUMMARY OF INDUSTRY AND GOVERNMENT COSTS 10-YEAR, 7 AND 3 PERCENT DISCOUNT RATES Undiscounted cost asabaliauskas on DSK5VPTVN1PROD with PROPOSALS Year Year Year Year Year Year Year Year Year Year Annualized 7% discount cost Annualized 3% discount cost 1 .............................................................................................................................. 2 .............................................................................................................................. 3 .............................................................................................................................. 4 .............................................................................................................................. 5 .............................................................................................................................. 6 .............................................................................................................................. 7 .............................................................................................................................. 8 .............................................................................................................................. 9 .............................................................................................................................. 10 ............................................................................................................................ $5,833,995 2,367,130 2,367,130 2,367,130 2,367,130 2,367,130 2,367,130 2,367,130 2,367,130 2,367,130 $5,452,332 2,067,543 1,932,283 1,805,872 1,687,731 1,577,319 1,474,130 1,377,691 1,287,562 1,203,329 $5,664,073 2,231,247 2,166,259 2,103,164 2,041,907 1,982,434 1,924,693 1,868,634 1,814,208 1,761,367 Total .......................................................................................................................... 27,138,165 19,865,791 23,557,987 Annualized ....................................................................................................................... ............................ 2,828,442 2,761,715 For more details, please refer to the cost chapter of the preliminary RA in the docket. VerDate Sep<11>2014 18:49 Dec 24, 2014 Jkt 235001 Benefits The primary benefit to this rule is to provide individuals, with a legitimate purpose, access to or egress from the PO 00000 Frm 00037 Fmt 4702 Sfmt 4702 vessel to the facility gate. The Center for Seafarers’ Rights organization, reports on the number of seafarers that are denied access through the terminal. Based on the SCI’s surveys from 2006 to E:\FR\FM\29DEP1.SGM 29DEP1 77992 Federal Register / Vol. 79, No. 248 / Monday, December 29, 2014 / Proposed Rules seafarers. Generally, transiting through a MTSA-facility is the only way for seafarers to access the shore, visit doctors, obtain prescriptions, visit businesses, visit family members and friends, among other things, beyond the facility. Another benefit to this rule is that it conforms to international conventions, specifically the International Ship and Port Facility Security Code. In light of this international agreement, if the U.S. is known internationally for having facilities that do not provide shore leave access, other countries may consider denying shore leave access to U.S. seafarers while they are abroad. 2014, there was an average of 907 seafarers that were denied shore leave access due to terminal restrictions. While it was reported that there were denials of access to other individuals with a legitimate purpose, we do not have the numbers of facilities that do not provide access nor do we have the numbers of other individuals denied access. The benefit to this rule is that seafarers and other authorized individuals that would otherwise be denied access due to terminal restrictions would be able to obtain shore leave access. Providing seafarers’ access ensures the safety, health, and welfare of Additionally, individuals providing services for seafarers or having another legitimate purpose for accessing the vessel, such as representatives of seafarers’ welfare and labor organizations, port workers organizations, port engineers or superintendents, generally can only access vessels moored at MTSAregulated facilities by transiting through the facility. Finally, this rule reduces regulatory uncertainty by harmonizing the Coast Guard’s regulations with section 811 of the CGAA (Pub. L. 111–281). The benefits to this rulemaking are described in Table 7. TABLE 7—SUMMARY OF BENEFITS Implications Definitions Seafarers’ Access ............................................... From 2006 to 2014, there were an average 907 reported seafarers that were denied access due to terminal restrictions. This ensures that these seafarers would be allowed access. Ensures the safety, health, and welfare of seafarers. Conforms with the intent of the ISPS Code. Reduces regulatory uncertainty by harmonizing the Coast Guard’s regulations with Sec. 811 of Pub. L. 111–281. asabaliauskas on DSK5VPTVN1PROD with PROPOSALS International Conventions ................................... Regulatory Uncertainty ....................................... Alternatives We propose several ways to ensure seafarers’ access: the proposed alternative (which is the chosen alternative), and four other alternatives. Proposed Alternative: The proposed alternative is to amend Coast Guard regulations to require MTSA-regulated facilities to implement a system of seafarers’ access and to amend their FSPs to document that system. This alternative was chosen because it provides regulatory flexibility at the least cost option that would comply with the intent of the statute. Other Considered Alternatives: Alternative 1—No change to regulations. Instead of amending the current regulations, COTPs would deny approval of FSPs that do not adequately address shore leave procedures in their security plans. While this approach may address some deficiencies at some facilities, we reject this alternative because it would not provide clear and consistent regulatory standards for facilities to implement and COTPs to enforce. Additionally, the current regulation in 33 CFR 105.200(b)(9) does not explicitly require facility owners and operators to provide timely, no cost access to seafarers, or to include seafarers’ access provisions in their security plans. Section 811 makes these issues mandatory, necessitating an update to our regulations. Alternative 2—Require a section of the Declaration of Security (DoS) between the facility and the vessel to VerDate Sep<11>2014 18:49 Dec 24, 2014 Jkt 235001 include the facility’s seafarers’ access procedures. We rejected this alternative due to the heavy burden it would place on the industry (see Chapters 1.3 and 5.2 of the preliminary RA for more details on the cost of this alternative). Additionally, this alternative would not specifically target facilities with existing seafarers’ access issues, and would require a DoS between many facilities and vessels that would not otherwise be required to have one. Alternative 3—Require facilities to implement specific and prescriptive procedures for seafarers’ access and to include these procedures in their FSPs. This alternative would not allow facilities any flexibility or choice in the method of access appropriate for their facility and operations. One example of a prescriptive measure would be to require that all facilities provide shuttle service for all seafarers, 24-hours a day. Although this would solve the issues associated with seafarers’ access, we do not support this alternative due to the heavy burden it would place on industry, resulting from prescribed major procedural and operational changes required for all facilities and higher costs associated with implementing such prescriptive regulations. Alternative 4—Publish guidance to industry clarifying that 33 CFR 105.200(b)(9) affirmatively requires facility owners/operators to provide shore leave and visitor access. We do not support this approach, because this PO 00000 Frm 00038 Fmt 4702 Sfmt 4702 approach has already been implemented, but has not completely solved the problems with seafarers’ access at some facilities. Some remaining facilities still deny seafarers’ access altogether or make shore access impractical based on a misinterpretation of our existing regulations (i.e., they contend that since 33 CFR 105.200(b)(9) only requires coordination of shore leave if there is actual shore leave to coordinate, and there is no shore leave to coordinate if access to shore is denied altogether). Though this alternative has been implemented, we have continued to receive complaints that some facilities grant seafarers’ access to and from vessels, but make it impractical by placing extreme limitations on escort availability or charging exorbitant fees. Additionally, the current regulation in 33 CFR 105.200(b)(9) does not require facility owners and operators to provide timely, no cost access to seafarers, or to include seafarers’ access provisions in their FSPs. Section 811 makes these issues mandatory, necessitating an update to our regulations to avoid regulatory uncertainty. 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 E:\FR\FM\29DEP1.SGM 29DEP1 Federal Register / Vol. 79, No. 248 / Monday, December 29, 2014 / Proposed Rules owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of fewer than 50,000 people. An Initial Regulatory Flexibility Analysis discussing the impact of this proposed rule on small entities is available in the docket where indicated under the ‘‘Public Participation and Request for Comments’’ section of this preamble. Based on available data, we identified 1,393 owners of the 2,498 facilities affected by this proposed rule. Of the 1,393 owners, we researched a sample of 304 owners to determine the size and revenue characteristics of the population. Based on the sample population of 304 owners, we estimate that approximately 77 percent are small entities, as defined by the Small Business Administration (SBA) or other applicable size standards. Facility owners are entities that could be businesses, non-profit organizations, or government agencies. For more details, please refer to the Initial Regulatory Flexibility Analysis chapter in the preliminary RA, available in the docket. Because we have no way to determine which facilities (and, therefore, which entities) would need to implement a system of access, we performed two analyses. The first assesses the impact on small entities for the FSP documentation only. The second 77993 estimates the impact from a combined FSP documentation and implementation. Assuming all small entities only have to document a system of access in their FSP, this proposed rule would have an impact on small entities of less than 1 percent of revenues for all small entities. For facilities that have to modify operations and document the new system of access in their FSP, 68 percent would have an impact of 1 percent or less, 26 percent would have an impacts of greater than 1 percent to 10 percent, and 6 percent would have a revenue impact of greater than 10 percent. Table 8 provides the breakdown of impacts. TABLE 8—REVENUE IMPACT ON SMALL ENTITIES Initial implementation cost Revenue impact Annual recurring costs FSP Only Cost Cost to Modify FSP ..................................................................................................................................... 0% < Impact <= 1% ..................................................................................................................................... $386 100% .............................. .............................. $18,724 66% 23% 1% 4% 6% $9,210 82% 8% 4% 3% 3% FSP Plus Access Implementation Per facility cost (weighted average) ............................................................................................................ 0% < Impact <= 1% ..................................................................................................................................... 1% < Impact <= 3% ..................................................................................................................................... 3% < Impact <= 5% ..................................................................................................................................... 5% < Impact <= 10% ................................................................................................................................... Above 10% .................................................................................................................................................. asabaliauskas on DSK5VPTVN1PROD with PROPOSALS 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 consult LT Mason Wilcox, Cargo and Facilities Division (CG–FAC–2), Coast Guard; telephone 202–372–1123, email Mason.C.Wilcox@uscg.mil. 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 VerDate Sep<11>2014 18:49 Dec 24, 2014 Jkt 235001 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 collections, 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 this proposed rule, the affected facilities and vessels would be required to update their FSPs to include provisions of seafarers’ PO 00000 Frm 00039 Fmt 4702 Sfmt 4702 access. This requirement would be added to an existing approved collection covered by Office of Management and Budget (OMB) control number 1625–0077. Title: Security Plans for Ports, Vessels, Facilities, and Outer Continental Shelf Facilities and other Security-Related Requirements OMB Control Number: 1625–0077. Summary of the Collection of Information: This proposed rule would modify an existing collection of information, in proposed §§ 105.200 through 105.405, for owners and operators of certain MTSA-regulated facilities. MTSA-regulated facilities would need to include a description of seafarers’ access in their FSPs. These requirements would require a one-time change in previously approved OMB Collection 1625–0077. Proposed Use of Information: The Coast Guard would use this information to determine whether a facility is providing adequate seafarers’ access provisions between the vessel and the facility gate. Description of the Respondents: The respondents are owners and operators of E:\FR\FM\29DEP1.SGM 29DEP1 asabaliauskas on DSK5VPTVN1PROD with PROPOSALS 77994 Federal Register / Vol. 79, No. 248 / Monday, December 29, 2014 / Proposed Rules MTSA-regulated facilities regulated by the Coast Guard under 33 CFR Chapter I, subchapter H. Number of Respondents: The adjusted number of respondents is 10,158 for vessels, 5,234 for facilities, and 56 for Outer Continental Shelf facilities. Of these 5,234 facilities, 2,498 would be required to modify their existing FSPs. Frequency of Response: There will be a one-time response for all 2,498 respondents. The FSP would need to be updated within 10 months after publication of the final rule. Burden of Response: This includes a one-time, 14,988-hour burden. The burden resulting from this NPRM is 6 hours per respondent. Estimate of Total Annual Burden: The estimated implementation period burden for facilities is 6 hours per FSP amendment. Since 2,498 facilities would be required to modify their existing FSPs, the total burden would be 14,988 hours = (2,498 facilities * 6 hours). The current burden listed in this collection of information is 1,108,043 hours. The new burden, as a result of this proposed rulemaking, would be 1,123,031 hours (1,108,043 + 14,988). As required by the Paperwork Reduction Act of 1995 (44 U.S.C. 3507(d)), we will submit a copy of this proposed rule to the OMB for 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 OIRA 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 Coast Guard could enforce the collection of information requirements in this proposed rule, OMB would need to approve the Coast Guard’s request to collect this information. 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 VerDate Sep<11>2014 18:49 Dec 24, 2014 Jkt 235001 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 and have determined that it is consistent with the fundamental Federalism principles and preemption requirements described in Executive Order 13132. This proposed rule would update existing regulations in 33 CFR part 105 by requiring each owner or operator of a facility regulated by the Coast Guard to implement a system that provides seafarers and other individuals with access through the facility. Additionally, this proposed rule would add requirements to amend security plans in order to ensure compliance. It is well-settled that States may not regulate in categories reserved for regulation by the Coast Guard. (See the decision of the Supreme Court in the consolidated cases of United States v. Locke and Intertanko v. Locke, 529 U.S. 89, 120 S. Ct. 1135 (March 6, 2000)). The Coast Guard believes the Federalism principles articulated in Locke apply to the regulations promulgated under the authority of MTSA. States and local governments are foreclosed from regulating within the fields covered by regulations found in 33 CFR parts 101, 103, 104, and 106. However, with regard to regulations found in 33 CFR part 105, State maritime facility regulations are not preempted so long as these State laws or regulations are more stringent than what is required by 33 CFR part 105 and no actual conflict or frustration of an overriding need for national uniformity exists. While it is well settled that State law or regulations will be preempted where Congress intended Coast Guard regulations to have preemptive effect, the Coast Guard recognizes the key role that State and local governments may have in making regulatory determinations. Additionally, for rules with federalism implications and preemptive effect, Executive Order 13132 specifically directs agencies to consult with State and local governments during the rulemaking process. If you believe this rule has implications for federalism under Executive Order 13132, please contact the person listed in the FOR FURTHER INFORMATION section of this preamble. 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 PO 00000 Frm 00040 Fmt 4702 Sfmt 4702 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 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. E:\FR\FM\29DEP1.SGM 29DEP1 Federal Register / Vol. 79, No. 248 / Monday, December 29, 2014 / Proposed Rules 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 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 use technical standards. Therefore, we did not consider the use of voluntary consensus standards. asabaliauskas on DSK5VPTVN1PROD with PROPOSALS 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 is likely to be categorically excluded under section 2.B.2, figure 2–1, paragraph (34)(a) and (c) of the Instruction and 6(a) of the final agency policy published at 67 FR 48243 on July 23, 2002. This rule involves regulations which are editorial or procedural, regulations concerning training, qualifying, licensing, and disciplining of maritime personnel and regulations concerning vessel operation safety standards. 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, Incorporation by reference, Maritime security, Reporting and recordkeeping requirements, Security measures, Vessels, Waterways. VerDate Sep<11>2014 18:49 Dec 24, 2014 Jkt 235001 33 CFR Part 105 Maritime security, Reporting and recordkeeping requirements, Security measures. For the reasons discussed in the preamble, the Coast Guard proposes to amend 33 CFR parts 101 and 105 as follows: 33 CFR—Navigation and Navigable Waters 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. ■ 2. Add § 101.112 to read as follows: § 101.112 Federalism. (a) [RESERVED] (b) The regulations in 33 CFR part 105 have preemptive effect over State or local regulations insofar as a State or local law or regulation applicable to the facilities covered by part 105 would conflict with the regulations in part 105, either by actually conflicting or frustrating an overriding Federal need for uniformity. PART 105—MARITIME SECURITY: FACILITIES 3. 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. § 105.200 [Amended] 4. Amend § 105.200 as follows: a. In paragraph (b)(1), after the words ‘‘Define the’’, remove the words ‘‘security organizational structure’’ and add, in their place, the words ‘‘organizational structure of the security personnel’’; and after the word ‘‘responsibilities’’, remove the words ‘‘within that structure’’; ■ b. In paragraph (b)(4), remove the words ‘‘an FSP’’ and add, in their place, the words ‘‘a Facility Security Plan (FSP)’’; ■ c. In paragraph (b)(6), remove the acronym ‘‘TWIC’’ and add, in its place, the words ‘‘Transportation Worker Identification Credential (TWIC)’’; ■ d. In paragraph (b)(6)(i), after the words ‘‘FSP are permitted to’’, add the words ‘‘serve as an’’, and at the end of the sentence, remove the symbol ‘‘;’’, and add, in its place, the symbol ‘‘.’’; ■ ■ PO 00000 Frm 00041 Fmt 4702 Sfmt 4702 77995 e. In paragraph (b)(6)(ii), after the words ‘‘or other authorized individual,’’, remove the word ‘‘should’’ and add, in its place, the words ‘‘in the event that’’, and at the end of the sentence, remove the symbol and word ‘‘; and’’, and add, in its place, the symbol ‘‘.’’; ■ f. In paragraph (b)(6)(iii), after the word ‘‘employees’’, remove the symbol ‘‘,’’; remove the word ‘‘what’’, and add, in its place, the word ‘‘which’’; and after the words ‘‘are secure areas and’’, add the words ‘‘which are’’; ■ g. In paragraph (b)(8), after the abbreviation ‘‘(DoS)’’, add the symbol ‘‘,’’; ■ h. In paragraph (b)(9), after the word ‘‘Ensure’’, remove the words ‘‘coordination of’’, and add, in their place, the words ‘‘implementation of a system, in accordance with § 105.237 of this subpart, coordinating’’; and after the words ‘‘for visitors to the vessel’’, remove the words ‘‘(including representatives of seafarers’ welfare and labor organizations)’’ and add, in their place, the words ‘‘, as described in § 105.237(b)(4) of this subpart’’ ■ i. In paragraph (b)(14), after the words ‘‘and of their obligation to inform’’, remove the acronym ‘‘TSA’’ and add, in its place, the words ‘‘Transportation Security Administration (TSA)’’; and ■ j. In paragraph (b)(15), after the words ‘‘protocols consistent with’’, remove the words ‘‘section 105.255(c)’’ and add, in their place, the words ‘‘paragraph (c) of § 105.255’’. ■ 5. Add § 105.237 to read as follows: ■ § 105.237 System for seafarers’ access. (a) Access Required. Each facility owner or operator must implement a system by (365 DAYS AFTER DATE OF PUBLICATION OF FINAL RULE) for providing access through the facility that enables individuals to transit to and from a vessel moored at the facility and the facility gate in accordance with the requirements in this section. The system must provide timely access as described in paragraph (c) of this section and incorporate the access methods described in paragraph (d) of this section at no cost to the individuals covered. The system must comply with the Transportation Worker Identification Credential (TWIC) provisions in this part. (b) Individuals Covered. The individuals to whom the facility owner or operator must provide the access described in this section include— (1) The seafarers assigned to a vessel moored at the facility; (2) The pilots and other authorized personnel performing work for a vessel moored at the facility; E:\FR\FM\29DEP1.SGM 29DEP1 asabaliauskas on DSK5VPTVN1PROD with PROPOSALS 77996 Federal Register / Vol. 79, No. 248 / Monday, December 29, 2014 / Proposed Rules (3) Representatives of seafarers’ welfare and labor organizations; and (4) Other authorized individuals in accordance with the Declaration of Security (DoS) or other arrangement between the vessel and facility. (c) Timely Access. The facility owner or operator must provide the access described in this section without unreasonable delay, subject to review by the Captain of the Port (COTP). The facility owner or operator must consider the following when establishing timely access without unreasonable delay: (1) Length of time the vessel is in port. (2) Distance of egress/ingress between the vessel and facility gate. (3) The vessel watch schedules. (4) The facility’s safety and security procedures as required by law. (5) Any other factors specific to the vessel or facility that could affect access to and from the vessel. (d) Access Methods. The facility owner or operator must ensure that the access described in this section is provided through one or more of the following methods: (1) Regularly scheduled escort between the vessel and the facility gate that conforms to the vessel’s watch schedule as agreed upon between the vessel and facility. (2) An on-call escort between the vessel and the facility gate. (3) Arrangements with taxi services, ensuring that any costs for providing the access described in this section, above the taxi’s standard fees charged to any customer, are not charged to the individual to whom such access is provided. If a facility provides arrangements with taxi services as the only method for providing the access described in this section, the facility is responsible to pay the taxi fees for transit within the facility. (4) Arrangements with seafarers’ welfare organizations to facilitate the access described in this section. (5) Monitored pedestrian access routes between the vessel and facility gate. (6) A method, other than those in paragraphs (d)(1) through (d)(5) of this section, approved by the COTP. (7) If an access method relies on a third party, a back-up access method that will be used if the third-party is unable to or does not provide the required access in any instance. An owner or operator must ensure that the access required in paragraph (a) of this section is actually provided in all instances. (e) No cost to individuals. The facility owner or operator must provide the access described in this section at no cost to the individual to whom such access is provided. VerDate Sep<11>2014 18:49 Dec 24, 2014 Jkt 235001 (f) Described in the Facility Security Plan (FSP). On or before [INSERT DATE 10 MONTHS AFTER PUBLICATION OF THE FINAL RULE], the facility owner or operator must document the facility’s system for providing the access described in this section in the approved FSP in accordance with 33 CFR 105.410 or 33 CFR 105.415. The description of the facility’s system must include— (1) Location of transit area(s) used for providing the access described in this section; (2) Duties and number of facility personnel assigned to each duty associated with providing the access described in this section; (3) Methods of escorting and/or monitoring individuals transiting through the facility; (4) Agreements or arrangements between the facility and private parties, nonprofit organizations, or other parties, to facilitate the access described in this section; and (5) Maximum length of time an individual would wait for the access described in this section, based on the provided access method(s). ■ 6. Amend § 105.405 as follows: ■ a. In paragraph (a), at the end of the first sentence, remove the text ‘‘(a)’’; ■ b. Redesignate paragraphs (a)(9) through (a)(18) as (a)(10) through (a)(19); ■ c. In newly designated paragraphs (a)(18) and (a)(19), at the beginning of the paragraphs, add the word ‘‘The’’ before the word ‘‘Facility’’; and ■ d. Add new paragraph (a)(9) as follows: § 105.405 Format and content of the Facility Security Plan (FSP). (a) * * * (9) System for seafarers’ access; * * * * * Dated: December 17, 2014. J.C. Burton, Captain, U.S. Coast Guard, Director of Inspections & Compliance. [FR Doc. 2014–30013 Filed 12–24–14; 8:45 am] BILLING CODE 9110–04–P ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA–R07–OAR–2014–0399; FRL–9920–67– Region 7] Approval and Promulgation of Implementation Plans; State of Missouri; St. Louis Inspection and Maintenance Program AGENCY: Environmental Protection Agency. PO 00000 Frm 00042 Fmt 4702 Sfmt 4702 ACTION: Proposed rule. The Environmental Protection Agency (EPA) proposes to approve State Implementation Plan (SIP) revisions submitted by the State of Missouri relating to the Inspection and Maintenance (I/M) Program. On August 16, 2007, and December 7, 2007, the Missouri Department of Natural Resources (MDNR) requested to amend the SIP to replace the St. Louis centralized transient I/M240 vehicle test program Gateway Clean Air Program (GCAP) and associated state rule with a de-centralized, OBD only vehicle I/M program called, the Gateway Vehicle Inspection Program (GVIP), and a new I/ M rule reflecting these changes. In this action, EPA is also proposing approval of three additional SIP revisions submitted by Missouri related to the state’s I/M program including minor clarification edits to the new I/M rule, exemptions for specially constructed vehicles or ‘‘kit-cars,’’ exemptions for Plugin Hybrid Electric Vehicles (PHEV), and rescission of Missouri State Highway Patrol rules from the Missouri SIP. These revisions to Missouri’s SIP do not have an adverse effect on air quality as demonstrated in the technical support document which is a part of this docket. EPA’s approval of these SIP revisions is being done in accordance with the requirements of the Clean Air Act (CAA). DATES: Comments must be received on or before January 28, 2015. ADDRESSES: Submit your comments, identified by Docket ID No. EPA–R07– OAR–2014–0399, by one of the following methods: 1. www.regulations.gov: Follow the on-line instructions for submitting comments. 2. Email: brown.steven@epa.gov 3. Mail or Hand Delivery or Courier: Steven Brown, Environmental Protection Agency, Air Planning and Development Branch, 11201 Renner Boulevard, Lenexa, Kansas 66219. Instructions: Direct your comments to Docket ID No. EPA–R07–OAR–2014– 0399. EPA’s policy is that all comments received 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 information claimed to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Do not submit information that you consider to be CBI or otherwise protected through www.regulations.gov or email. The www.regulations.gov Web SUMMARY: E:\FR\FM\29DEP1.SGM 29DEP1

Agencies

[Federal Register Volume 79, Number 248 (Monday, December 29, 2014)]
[Proposed Rules]
[Pages 77981-77996]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2014-30013]

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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Parts 101 and 105

[Docket No. USCG-2013-1087]
RIN 1625-AC15

Seafarers' Access to Maritime Facilities

AGENCY: Coast Guard, DHS.

ACTION: Notice of proposed rulemaking, notice of public meeting.

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SUMMARY: The Coast Guard proposes to require each owner or operator of
a facility regulated by the Coast Guard to implement a system that
provides seafarers and other individuals with access between vessels
moored at the facility and the facility gate, in a timely manner and at
no cost to the seafarer or other individual. Generally, transiting
through a facility is the only way that a seafarer or other individual
can egress to shore beyond the facility to access basic shoreside
businesses and services, and meet with family members and other
personnel that do not hold a Transportation Worker Identification
Credential. This proposed rule would help to ensure that no facility
owner or operator denies or makes it impractical for seafarers or other
individuals to transit through the facility, and would require them to
document their access procedures in their Facility Security Plans. This
proposed rule would implement section 811 of the Coast Guard
Authorization Act of 2010.

DATES: Comments and related material must either be submitted to our
online docket via https://www.regulations.gov on or before February 27,
2015 or reach the Docket Management Facility by that date. Comments
sent to the Office of Management and Budget (OMB) on collection of
information must reach OMB on or before February 27, 2015.
The Coast Guard will hold a public meeting in Washington, DC to
solicit comments on the proposals in this notice on January 23, 2015
from 9:00 a.m. to 12:00 p.m. The deadline to reserve a seat is January
16, 2015.

ADDRESSES: You may submit comments identified by docket number USCG-
2013-1087 using any one of the following methods:
(1) Federal eRulemaking Portal: https://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

[[Page 77982]]

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), Office of Management and
Budget. 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.
The public meeting will be held at the Department of Transportation
Headquarters, Oklahoma Room, 1200 New Jersey Avenue SE., Washington, DC
20590; the building telephone number is 202-366-1035. The meeting is
open to the public. Seating is limited, so please reserve a seat as
soon as possible, but no later than January 16, 2015. To reserve a
seat, please email Mason.C.Wilcox@uscg.mil with the participant's first
and last name for all U.S. Citizens, and additionally official title,
date of birth, country of citizenship, and passport number with
expiration date for non-U.S. Citizens. To gain entrance to the
Department of Transportation Headquarters building, all meeting
participants must present government-issued photo identification (i.e.,
state issued driver's license). If a visitor does not have a photo ID,
that person will not be permitted to enter the facility. All visitors
and any items brought into the facility will be required to go through
security screening each time they enter the building. For information
on facilities or services for individuals with disabilities or to
request special assistance at the public meeting, contact LT Mason
Wilcox at the telephone number or email address indicated under the FOR
FURTHER INFORMATION CONTACT section of this notice.
A live video feed of the meeting will be available upon request to
LT Mason Wilcox at Mason.C.Wilcox@uscg.mil.

FOR FURTHER INFORMATION CONTACT: If you have questions on this proposed
rule, call or email LT Mason Wilcox, Cargo and Facilities Division (CG-
FAC-2), Coast Guard; telephone 202-372-1123, email
Mason.C.Wilcox@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. Executive Summary
A. Purpose of the Regulatory Action
1. Need for the Regulatory Action
2. Legal Authority for the Regulatory Action
B. Summary of the Major Provisions of the Regulatory Action
C. Summary of Costs and Benefits
IV. Background
V. Discussion of Proposed Rule
A. 33 CFR 105.200(b)(9)
B. 33 CFR 105.237
C. 33 CFR 105.405
D. 33 CFR 101.112 (Federalism)
E. Public Comments
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 https://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 (USCG-2013-1087), 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 or by fax, mail, or hand delivery, but please use only one of
these means. We recommend that you include your name and a mailing
address, an email address, or a phone 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 https://www.regulations.gov and
insert ``USCG-2013-1087'' in the ``Search'' box. Click on ``Submit a
Comment in the ``Actions'' column. 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 this proposed 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 https://www.regulations.gov and
insert ``USCG-2013-1087'' in the ``Search'' box. Click ``Search.''
Click the ``Open Docket Folder'' in the ``Actions'' column. If you do
not have access to the Internet, you may view the docket online by
visiting 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. We have an agreement
with the Department of Transportation to use the Docket Management
Facility.

C. Privacy Act

Anyone can search the electronic form of comments received into any
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 plan to hold a public meeting regarding the proposals in this
NPRM. The meeting will be held on January 23, 2015 from 9:00 a.m. to
12:00 p.m. The meeting will be held at the location

[[Page 77983]]

indicated under the ADDRESSES section above. The deadline to reserve a
seat is January 16, 2015. Information on reserving a seat for the
meeting is provided under the ADDRESSES section above.

II. Abbreviations

CBP United States Customs and Border Protection
CDC Certain Dangerous Cargoes
CGAA 2010 Coast Guard Authorization Act of 2010
CFR Code of Federal Regulations
COTP Captain of the Port
DoS Declaration of Security
DHS Department of Homeland Security
FR Federal Register
FSP Facility Security Plan
ISPS Code International Ship and Port Facility Security Code
MTSA Maritime Transportation Security Act of 2002
NMSAC National Maritime Security Advisory Committee
NPRM Notice of Proposed Rulemaking
RA Regulatory Analysis
SCI Seamen's Church Institute's Center for Seafarers' Rights
SME Subject Matter Expert
Sec. Section symbol
TWIC Transportation Worker Identification Credential
U.S.C. United States Code

III. Executive Summary

A. Purpose of the Regulatory Action

Throughout the maritime sector, vessels arrive at Maritime
Transportation Security Act of 2002 (MTSA)-regulated facilities for any
number of commercial and other purposes.\1\ Vessels are operated by
seafarers, who are individuals assigned to work on a vessel and who may
be at sea for days, weeks, or months as part of their employment on
that vessel. Generally, transiting through a MTSA-regulated facility is
the only way for seafarers to access the shore, and services,
businesses, family members and friends, among other things, beyond the
vessel and facility. Additionally, individuals providing services for
seafarers or having another legitimate purpose for accessing the
vessel, generally can only access a vessel moored at a MTSA-regulated
facility by transiting through the facility.
---------------------------------------------------------------------------

\1\ For purposes of this rule, ``MTSA-regulated facility'' is
described in 33 CFR 105.105, and is detailed more fully below in the
Background section.
---------------------------------------------------------------------------

1. Need for the Regulatory Action
This regulatory action is necessary to implement section 811 of the
Coast Guard Authorization Act of 2010 (Pub. L. 111-281, codified at 46
U.S.C. 70103 note) (CGAA 2010), which requires facility owners and
operators to ensure shore access for seafarers and other individuals.
Specifically, section 811 requires each MTSA-regulated facility to
``provide a system for seamen assigned to a vessel at that facility,
pilots, and representatives of seamen's welfare and labor organizations
to board and depart the vessel through the facility in a timely manner
at no cost to the individual.''
This regulatory action is necessary to help ensure that owners and
operators of facilities regulated by the Coast Guard, under MTSA (Pub.
L. 107-295, codified at 46 U.S.C. 70101 et seq.), provide seafarers
assigned to vessels moored at the facility with the ability to board
and depart vessels to access the shore through the facility in a timely
manner and at no cost to the seafarer.
Additionally, this regulatory action is necessary to help ensure
that facility owners and operators provide the same no-cost access
between a vessel and facility gate to other individuals with a
legitimate purpose for accessing the vessel. These individuals include:
representatives of seafarers' welfare and labor organizations; port
workers organizations; port engineers or superintendents;
classification society surveyors; ship's agents; pilots; and other
authorized personnel performing work for a vessel moored at the
facility, in accordance with the Declaration of Security (DoS)or other
arrangement between the vessel and facility.
This regulatory action applies to owners and operators of MTSA-
regulated facilities, which are facilities required by MTSA to
implement national maritime security initiatives. One of the required
security features is the provision of security measures for access
control. Coast Guard access-control regulations at 33 CFR 105.255
require MTSA-regulated facilities to control an individual's access to
the facility and designated secure areas within the facility unless
that individual is either authorized to access that area or is escorted
by someone who is authorized to access the area. Accordingly, facility
owners and operators must consider the security implications of
permitting seafarers and other individuals to transit through their
facilities. Nonetheless, other Coast Guard regulations addressing MTSA-
regulated facility security requirements at 33 CFR 105.200(b)(9)
require such facilities to ensure coordination of shore leave for these
persons.
2. Legal Authority for the Regulatory Action
Section 811 of the CGAA 2010 requires each MTSA-regulated facility,
in its Facility Security Plan (FSP), to ``provide a system for seamen
assigned to a vessel at that facility, pilots, and representatives of
seamen's welfare and labor organizations to board and depart the vessel
through the facility in a timely manner at no cost to the individual.''
The Secretary of Homeland Security (Secretary) is authorized under 46
U.S.C. 70124 to issue regulations necessary to implement 46 U.S.C.
70103. The Secretary delegated to the Commandant of the Coast Guard the
authority to carry out the functions and exercise the authorities in 46
U.S.C. 70103 (DHS Delegation 0170.1(97)).
Additionally, the Secretary is authorized under 33 U.S.C. 1226 to
take certain actions to advance port, harbor, and coastal facility
security. The Secretary is authorized under 33 U.S.C. 1231 to
promulgate regulations to implement 33 U.S.C. chapter 26, including 33
U.S.C. 1226. The Secretary has delegated this authority to the
Commandant of the Coast Guard (DHS Delegation 0170.1(70) and (71)).

B. Summary of the Major Provisions of the Regulatory Action

We propose to require each owner or operator of a MTSA-regulated
facility to implement a system for providing seafarers and other
individuals with access between vessels moored at the facility and the
facility gate. Each owner or operator would be required to implement a
system, within 1 year after publication of the final rule, that
incorporates specific methods of providing access in a timely manner,
at no cost to the individual, and in accordance with existing access
control provisions in 33 CFR part 105. We also propose to require each
owner or operator to ensure that the FSP includes a section describing
the system for seafarers' access.
This rule would not affect the authority of the U.S. Customs and
Border Protection (CBP) to inspect and process individuals seeking
entry to the U.S. For those seafarers and other individuals subject to
CBP's authority, this rule would apply to facility owners and operators
only after such seafarers and other individuals have been inspected,
processed, and admitted to the U.S. by CBP.

C. Summary of Costs and Benefits

This rule would affect approximately 2,498 MTSA-regulated
facilities. We estimate that the annualized cost at 7 percent would be
$2.8 million and the total 10-year cost would be $19.9 million--also
discounted at 7 percent. This rule would provide benefits to industry
by ensuring that an annual average of 907 seafarers would be able

[[Page 77984]]

to obtain shore leave access through the facilities, reducing
regulatory uncertainty, conforming to the intent of the International
Ship and Port Facility Security Code (ISPS Code), ensuring the safety,
health, and welfare of seafarers, and providing regulatory flexibility
to accommodate facility sizes and functions. Facilities have options as
to which method of access they would prefer to use.

IV. Background

Under MTSA, the Coast Guard is authorized to regulate maritime
facilities. For purposes of MTSA, the term ``facility'' means ``any
structure or facility of any kind located in, on, under, or adjacent to
any waters subject to the jurisdiction of the United States.'' 46
U.S.C. 70101(a)(2).
Existing Coast Guard regulations at 33 CFR part 105 implementing
MTSA apply to certain facilities including: waterfront facilities
handling dangerous cargoes; \2\ waterfront facilities handling
liquefied natural gas \3\ and liquefied hazardous gas; \4\ facilities
transferring oil or hazardous materials \5\ in bulk; facilities that
receive vessels certificated to carry more than 150 passengers;
facilities that receive vessels subject to the International Convention
for the Safety of Life at Sea, 1974 (SOLAS), Chapter XI; facilities
that receive foreign cargo vessels greater than 100 gross register
tons; generally, facilities that receive U.S. cargo and miscellaneous
vessels greater than 100 gross register tons; and barge fleeting
facilities that receive barges carrying, in bulk, cargoes regulated
under the Coast Guard's regulations regarding tank vessels or certain
dangerous cargoes (CDCs).\6\ This rulemaking applies to the above-
described facilities regulated by the Coast Guard pursuant to the
authority granted in MTSA.
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\2\ ``Dangerous cargoes'' are defined at 33 CFR 126.3.
\3\ ``Liquefied natural gas'' is defined at 33 CFR 127.005.
\4\ ``Liquefied hazardous gas'' is defined at 33 CFR 127.005.
\5\ ``Hazardous materials'' are defined at 33 CFR 154.105.
\6\ ``CDCs'' are defined at 33 CFR 160.204.
---------------------------------------------------------------------------

MTSA provides the Coast Guard with statutory authorities and
mandates to advance the Coast Guard's maritime security mission to
detect, deter, disrupt, and respond to attacks and other disasters that
might affect the United States, its territory, population, vessels,
facilities, and critical maritime infrastructure. On July 1, 2003, the
Coast Guard published a series of six temporary interim rules to
promulgate maritime security requirements mandated by MTSA. (See
Implementation of National Maritime Security Initiatives, 68 FR 39240
(July 1, 2003).) One of the six interim rules specifically addressed
security measures at maritime facilities. (See Facility Security, 68 FR
39315 (July 1, 2003)). The interim rule added part 105 ``Maritime
Security: Facilities'' to subchapter H of Title 33 of the CFR. The
interim rule required facility owners, operators, and security
personnel to implement measures for controlling access to maritime
facilities. In crafting the interim rule, we recognized both the need
for facility access control measures, and the competing need for
seafarers and other individuals to have the ability to board and depart
vessels through the facilities. Thus, the interim rule included a
requirement that each facility owner or operator ``[e]nsure
coordination of shore leave for vessel personnel or crew change-out, as
well as access through the facility for visitors of the vessel
(including representatives of seafarers' welfare and labor
organizations), with vessel operators in advance of a vessel's
arrival[.]'' (See 68 FR 39317).
On October 22, 2003, the Coast Guard published a final rule
adopting, with changes, the July 1, 2003, interim rule on security
measures at maritime facilities. (See Facility Security, 68 FR 60515
(Oct. 22, 2003)). Specifically, the final rule adopted the provision
regarding coordination of shore leave, and also included an additional
provision that permits facility owners or operators to ``. . . refer to
treaties of friendship, commerce, and navigation between the U.S. and
other nations [when coordinating shore leave].'' This new provision was
added in response to public comments regarding the difficulty that some
foreign seafarers have experienced when seeking shore leave. (See 68 FR
60520).
The regulatory text adopted in the October 22, 2003, final rule
remains unchanged today, although it has been relocated to 33 CFR
105.200(b)(9). Section 105.200(b)(9) provides, in part, that each
facility owner or operator is currently required to ``[e]nsure
coordination of shore leave for vessel personnel or crew change-out, as
well as access through the facility for visitors of the vessel
(including representatives of seafarers' welfare and labor
organizations), with vessel operators in advance of a vessel's
arrival.''
This current regulatory requirement for shore leave is bolstered by
international agreement. The United States is a signatory to the ISPS
Code, which sets forth international ship and port security measures.
Like the Coast Guard's implementation of MTSA that requires both secure
facilities and shore leave, ISPS Code furthers facility security, but
not at the expense of the seafarer. The preamble to ISPS Code
(paragraph 11), ratified in December 2002, states: ``Contracting
Governments when approving ship and port FSPs should pay due cognizance
to the fact that ship's personnel live and work on the vessel and need
shore leave and access to shore-based seafarer welfare facilities,
including medical care.'' In light of this international agreement, if
the U.S. is known internationally for having facilities that do not
provide shore leave access, other countries may consider denying shore
leave access to U.S. seafarers while they are abroad.
The Coast Guard understands that, currently, approximately 90
percent of MTSA-regulated facility owners and operators comply with the
current shore leave requirements in 33 CFR 105.200(b)(9) and provide
seafarers and other individuals access between the vessel and the
facility gate.\7\ However, we have received complaints that some
facility owners and operators are still denying seafarers and other
individuals any access between the vessel and facility gate despite 33
CFR 105.200(b)(9) because of how some facility owners and operators
implement or interpret that requirement. The apparent rationale for
denying such access is that 33 CFR 105.200(b)(9) only requires
coordination of shore leave if there is actual shore leave to
coordinate, and there is no shore leave to coordinate if access to
shore is denied altogether. We have received other complaints that some
facilities comply with 33 CFR 105.200(b)(9) by permitting access to and
from vessels, but make shore access impractical for seafarers and other
individuals by placing extreme limitations on escort availability or by
charging exorbitant fees. For example, we have received complaints of
wait-times up to 3-hours for TWIC-holding facility personnel or taxi
drivers to arrive and escort seafarers through a facility. The
seafarers seeking access are often TWIC-holders themselves, and there
is only a short distance between the vessel and the facility gate, the
span of which is visible to security guards at the gate. Nonetheless,
some facilities have prohibited TWIC-holding seafarers from walking
between the vessel and facility gate. We have received other complaints
of facilities charging $400-$500 (in addition to requiring the vessel
agent to independently hire its own

[[Page 77985]]

TWIC-holding escorts) before allowing seafarers ashore. We have also
received complaints of facilities completely denying seafarers the
ability to disembark a vessel to go ashore.
---------------------------------------------------------------------------

\7\ Based on the Seamen's Church Institute's (SCI) Center for
Seafarers' Rights surveys from 2006 to 2014.
---------------------------------------------------------------------------

To address these complaints, the Coast Guard issued guidance in
October 2008 (ALCOAST 529/08) and October 2009 (ALCOAST 575/09),
advising Coast Guard Captains of the Port (COTPs) to encourage facility
owners and operators to remedy inadequate access issues. Subsequent to
those efforts, we also conducted a joint evaluation of seafarers'
access issues with CBP, culminating in additional Coast Guard guidance
instructing COTPs to compile lists of facilities identified as
deficient with respect to seafarers' access. In January 2010, the COTPs
had reviewed 62 percent of all FSPs and reported that 4 percent lacked
adequate seafarers' access provisions.
While the Coast Guard was addressing these complaints, Congress
mandated seafarers' access in section 811 of the CGAA 2010. This
mandate requires each FSP to ``provide a system for seamen assigned to
a vessel at that facility, pilots, and representatives of seamen's
welfare and labor organizations to board and depart the vessel through
the facility in a timely manner at no cost to the individual.'' The
National Maritime Security Advisory Committee (NMSAC) also considered
section 811 in a working group that met on March 22 and May 3, 2011,
resulting in a resolution containing recommended definitions for the
statutory terms ``system,'' ``timely,'' and ``no cost to the
individual.'' The NMSAC resolution provided the Coast Guard with useful
conceptual information. Although the Coast Guard did not adopt the
exact text of the NMSAC definitions in this NPRM, the proposals in this
NPRM are consistent with the NMSAC recommendations. The NMSAC
resolution is available for viewing in the public docket for this
rulemaking.
This proposed rule would implement section 811 by amending current
regulations to comply with statutory requirements for each facility
owner or operator to provide seafarers associated with a vessel moored
at the facility, and other individuals, access between the vessel and
facility gate in a timely manner and at no cost to the seafarer or
other individual.
This rule would not affect the authority of CBP to inspect and
process individuals seeking entry to the U.S. For those seafarers and
other individuals subject to CBP's authority, this rule would apply to
facility owners and operators only after such seafarers and other
individuals have been inspected, processed, and admitted to the U.S. by
CBP.

V. Discussion of Proposed Rule

The following discussion explains the proposed changes to 33 CFR
part 105 that would implement section 811. In addition to the proposed
changes discussed below, we propose several minor technical amendments
to 33 CFR 105.200 that would clarify acronyms and improve readability,
but are not intended to make any substantive changes. Finally, we
propose a provision on the Federalism issues associated with the Coast
Guard's maritime security regulations in 33 CFR part 105.

A. 33 CFR 105.200(b)(9)

We propose to amend 33 CFR 105.200(b)(9), which contains the
existing seafarers' access requirements. This amendment would require
each facility owner or operator to coordinate shore leave in accordance
with new specific requirements implementing section 811 set forth in 33
CFR 105.237. This cross-reference to the proposed specific requirements
for seafarers' access would remove any possible ambiguity in, or
opportunity for misinterpretation of, the existing seafarers' access
requirements in 33 CFR 105.200(b)(9).
We also propose to replace the current parenthetical explanation of
the term ``visitors'' in Sec. 105.200(b)(9) with a reference to the
proposed list of ``individuals covered'' in proposed Sec. 105.237.
Currently, paragraph (b)(9) requires access through a facility for
shore leave for vessel personnel, crew change-out, and ``visitors to
the vessel (including representatives of seafarers' welfare and labor
organizations).'' Because section 811 also specifies individuals that
must be provided access through a facility, we propose to incorporate
in 33 CFR 105.237(b) the individuals covered under the existing
seafarers' access requirement in current 33 CFR 105.200(b)(9) with the
new proposed list of individuals covered under section 811.

B. 33 CFR 105.237

We propose to add this new section, implementing section 811, which
would require each facility owner or operator to implement a system for
providing access to and from vessels moored at the facility and the
facility gate.

33 CFR 105.237(a)

Proposed paragraph (a) would set forth the general requirements for
a system of seafarers' access, which incorporates the language of
section 811. Each owner or operator would be required to implement a
system that incorporates specific methods of providing access in a
timely manner, at no cost to the individual, and in accordance with the
provisions in 33 CFR part 105.
Part 105 sets forth facility security requirements, and facility
owners and operators would have to provide seafarers' access within
these facility security requirement parameters. The proposed rule would
provide facility owners and operators flexibility to implement a system
to provide seafarers' access that is tailored to each facility. We
propose to require implementation of the system within 1 year after
publication of the final rule to provide facility owners and operators
time to tailor a system specific to the facility.

33 CFR 105.237(b)

Section 811 lists the individuals to whom Congress intended
facility owners and operators provide access through their facilities.
Specifically, section 811 requires ``[e]ach Facility Security Plan . .
. to provide a system for seamen assigned to a vessel at that facility,
pilots, and representatives of seamen's welfare and labor organizations
to board and depart the vessel through the facility. . . .''
Additionally, current 33 CFR 105.200(b)(9) requires access through a
facility for shore leave for vessel personnel, crew change-out, and
``visitors to the vessel (including representatives of seafarers'
welfare and labor organizations).'' Because these two lists overlap,
and both identify the individuals to whom facility owners or operators
must provide access to and from vessels, we propose to provide one list
of individuals covered by seafarers' access requirements.
Proposed paragraph (b), ``Individuals covered'', would list
individuals covered by seafarers' access requirements. The proposed
paragraph (b) lists:
Seafarers assigned to a vessel moored at the facility;
vessel pilots and other authorized personnel performing
work for a vessel moored at a facility (to cover individuals that are
not considered seafarers or pilots);
representatives of seafarers' welfare and labor
organizations; and
other authorized individuals, in accordance with a DoS or
other arrangement between the vessel and facility, to cover visitors to
a vessel other than representatives of seafarers' welfare and labor
organizations.

[[Page 77986]]

The categories of ``other authorized personnel'' and ``other
authorized individuals'' would be broad categories to cover individuals
such as port workers organizations, port engineers and superintendents,
technicians, port agents, new crew (not yet technically assigned to the
vessel), marine insurance writers, cargo surveyors, and family members
of the seafarers and other vessel personnel. We propose the provision
covering any other authorized individuals in order to provide
flexibility that would enable the vessel and facility owners and
operators to work directly with each other regarding individuals
authorized to transit between the vessel and facility gate.

33 CFR 105.237(c)

Section 811 requires facility owners or operators to provide
seafarers' access in a ``timely'' manner. Due to the wide variety of
facility types, sizes, and the nature of their operations, this
rulemaking does not propose a single regulatory definition of
``timely'' access that would apply to all facilities. Instead, we
propose under paragraph (c) to require each facility owner or operator
to provide access without unreasonable delay, subject to review by the
COTP. Proposed paragraph (c) also lists factors the facility owners or
operators would have to consider when determining what ``timely access
without unreasonable delay'' means for each vessel moored at its
facility. The COTP would review each FSP to ensure that the facility
owner or operator has appropriately considered the enumerated factors.
The enumerated factors in proposed paragraph (c) relate to the amount
of time that is reasonable for individuals to wait for access through
the facility and the methods that the facility owner or operator would
use for providing such access. The factors are:
The length of time a vessel is scheduled to remain in
port. For example, if a ship is in port for 6 hours, the COTP could
determine that a 2-hour wait for access each way would be unreasonable.
If the ship is in port for 2 weeks, the COTP could determine that a 2-
hour wait for access is reasonable.
The distance of egress/ingress between the vessel and
facility gate. This distance can influence the appropriate method(s) of
providing timely access between vessel and facility gate (e.g., van,
taxi, pedestrian walkway, escort, etc.). For example, if the distance
between the vessel and facility gate is less than the average city
block, the COTP could determine that it is unreasonable to require
individuals to wait for a taxi instead of using a pedestrian walkway.
The vessel's watch schedules. A vessel's watch schedule is
relevant to providing timely access because a vessel crew's operations
are based on various watch-hour rotations to ensure the safety and
security of the vessel. The facility owner or operator would be
required to take the vessel's watch schedule into account in
development of an access plan that ensures vessel crews have access to
shore leave during the time they are not on watch.
A facility's safety and security procedures required by
law. These are relevant to providing timely access because they can
determine the appropriate method(s) of providing timely access between
a vessel and facility gate. For example, a pedestrian walkway might not
be appropriate at a large container facility with extensive heavy
equipment operations if the walkway would put pedestrians in the
pathway of those operations, causing safety concerns for both
pedestrians and operations. Similarly, the security footprint of a
facility that handles CDCs might also preclude the use of pedestrian
walkways as a method for providing access between a vessel and the
facility gate due to the hazardous nature of the environment for
pedestrians and any security concerns for the cargo.
Any other factors specific to the vessel or facility that
could affect access to and from the vessel. There may be other factors
specific to the vessel or facility that could be relevant to providing
timely access, such as bunkering and stores operations that may limit
movement throughout the facility for safety. The COTP would review
these other factors included in the FSP and how the facility considers
them in determining how to provide shore access in a timely manner.
Defining timely access without unreasonable delay through the
application of factors would provide flexibility to account for a
diverse regulated population of maritime facilities. This approach
would also provide appropriate COTP oversight to verify that
``timeliness'' is reasonable in each case.

33 CFR 105.237(d)

Proposed paragraph (d) of 33 CFR 105.237 would require each
facility owner or operator to provide seafarers' access using one or
more specific methods. The owner or operator would be required to
either choose one of the listed methods or combine multiple methods to
create an appropriate system for that facility. Whichever method they
choose, facility owners or operators would ultimately be responsible
for ensuring that all individuals covered by the regulations are
provided timely access between the vessel and the facility gate.
In order to provide timely access, facility owners and operators
would choose their own method of providing that access. They could
choose a method listed in proposed paragraph (d) or they could choose
any other method, provided that the COTP approves it. The methods
listed in proposed paragraph (d) are:
On-call or regularly scheduled escorts.\8\ On-call
escorting would require the facility to provide a means of
communication, such as a phone number or other means of communication
that seafarers could call to arrange access, and the facility would
dispatch one or more escorts upon request. Regularly scheduled escorts
could operate on a set schedule or at specific times pre-arranged
between facility and vessel personnel based on the vessel's crew watch
changes. Facility owners and operators would be permitted to choose the
option(s) most suitable to their specific business operations so long
as they are sufficiently timely.
---------------------------------------------------------------------------

\8\ If access is provided through secure areas of the facility,
the Transportation Worker Identification Credential (TWIC)
requirements in 33 CFR 101.514 would apply.
---------------------------------------------------------------------------

Taxi services to provide escorted access through the
facility. If a facility chose to permit access between the vessel and
the facility gate only via taxi, regardless of whether the seafarer
required a taxi beyond the facility gate, then that taxi fare would be
considered a cost that the owner or operator imposes on the seafarer as
a surcharge or tax on shore access. The owner or operator would be
required to either pay that cost or provide an alternative method of
timely, no-cost access through the facility for seafarers and other
individuals. When the seafarer uses the taxi for travel to destinations
beyond the facility boundaries (i.e., not solely for transit between
the vessel and the facility gate), the seafarer would be responsible
for paying the standard, local taxi fare to their destination,
including the portion of transit between the vessel and facility gate,
provided that there is no additional surcharge for transiting the
facility.
Seafarers' welfare organizations to facilitate the access,
such as acting as escorts. The Coast Guard understands some seafarers'
welfare organizations currently provide this service at facilities, and
we do not want to disrupt

[[Page 77987]]

existing arrangements successfully providing shore access.
Monitored pedestrian routes between the vessel and
facility gate. Monitored pedestrian routes could include side-by-side
escorting or other monitoring sufficient to observe whether the
escorted individual is engaged in activities other than those for which
escorted access has been granted. (See 33 CFR 101.105 ``Escorting'').
The Coast Guard notes that NVIC 03-07 provides guidance on monitoring
protocols.
Section 811 places the requirement to provide access on the
facility owner or operator. Accordingly, facility owners and operators
would not be permitted to rely solely on third parties, such as taxi
services or seafarers' welfare organizations, to provide access between
the vessel and facility gate. Taxi services may not always be available
to provide timely access to all of the seafarers at a given facility.
Similarly, the seafarers' welfare organizations are philanthropic
organizations that voluntarily provide important services to seafarers,
and may or may not have the resources to provide timely access to all
of the seafarers at a facility. Owners and operators relying on one or
more third parties as their primary method of providing the required
access would also be required to include a back-up method of providing
timely, no-cost access provisions in their FSPs.
Facility owners and operators could also choose to develop their
own method(s) for providing access between the vessel and facility
gate, apart from the listed methods. In all cases, the method(s)
included in the FSP would be subject to COTP review and approval.

33 CFR 105.237(e)

Section 811 specifically requires facility owners or operators to
provide seafarers' access at no cost to the individual. We propose to
codify that requirement in 33 CFR 105.237(e). The Coast Guard has
received complaints indicating that some facility owners and operators
currently provide access through their facilities, but only do so by
allowing taxis to shuttle seafarers between the vessel and the facility
gates for a specific fee. Such an arrangement would not meet the
requirement in Section 811 or in proposed Sec. 105.237(e) to provide
access at no cost.

33 CFR 105.237(f)

Section 811 specifically requires that approved FSPs must provide a
system for seafarers' access. We propose to require facility owners or
operators to describe the seafarers' access systems in their FSPs. In
the FSP, owners or operators would be required to document the: (1)
Location of transit areas used for providing seafarers' access; (2)
duties, and number of facility personnel assigned to each duty,
associated with providing seafarers' access; (3) methods of escorting
and/or monitoring individuals transiting through the facility; (4)
agreements or arrangements between the facility and private parties,
nonprofit organizations, or other parties to facilitate seafarers'
access; and (5) maximum length of time an individual would wait for
seafarers' access.
Documenting this information in the FSP would ensure that the
facility's system for seafarers' access is described in sufficient
detail for facility personnel to implement and for Coast Guard
personnel, specifically COTPs, to confirm regulatory compliance. In
accordance with 33 CFR 105.410 (for facilities submitting an initial
FSP) or 33 CFR 105.415 (for facilities amending an existing approved
FSP), which already require that all FSP updates be submitted for COTP
approval at least 60 days before any operational change, we propose
requiring facilities to update their FSPs and submit them for COTP
review a minimum of 60 days before implementing any operational changes
that would be necessitated by this rule. Because we propose requiring
implementation of the system within 1 year after publication of the
final rule under proposed Sec. 105.237(a), all FSP updates would need
to be submitted no later than 10 months after the publication of the
final rule.

C. 33 CFR 105.405

We propose updating 33 CFR 105.405, which dictates the format and
content of the FSP, to add the proposed requirement that an FSP include
a section on the facility's system for seafarers' access.

D. 33 CFR 101.112 (Federalism)

A Presidential Memorandum, dated May 20, 2009, entitled
``Preemption,'' \9\ requires an agency to codify a preemption provision
in its regulations if the agency intends to preempt State law. We
propose to add a new section 33 CFR 101.112, which would provide a
statement regarding the preemption principles that apply to 33 CFR part
105.
---------------------------------------------------------------------------

\9\ 74 FR 24693.
---------------------------------------------------------------------------

We believe the field-preemption Federalism principles articulated
in United States v. Locke and Intertanko v. Locke \10\ apply to 33 CFR
part 105, at least insofar as a State or local law or regulation
applicable to MTSA-regulated facilities for the purpose of their
protection would conflict with a Federal regulation (i.e., it would
either actually conflict or would frustrate an overriding Federal need
for uniformity).
---------------------------------------------------------------------------

\10\ 529 U.S. 89, 120 S.Ct. 1135 (March 6, 2000).
---------------------------------------------------------------------------

E. Public Comments

We invite the public to comment on any part of this proposed rule
and the assumptions and estimates used in the ``Preliminary Regulatory
Analysis (RA) and Initial Regulatory Flexibility Analysis,'' which is
available in the public docket for this rulemaking. Specifically, we
request comments on the following:
1. We request comments on whether 1 year is an appropriate
timeframe to implement the system that would be required under this
proposed rule.
2. In formulating the proposed 33 CFR 105.237(b) ``Individuals
covered'', we sought to include the individuals to whom facility owners
or operators should be required to provide timely, no-cost access
through their facilities based on the language of section 811 and the
existing seafarers' access requirements in 33 CFR 105.200(b)(9). We
request comments on whether this proposal provides an appropriately
inclusive list of individuals who should be allowed to access a vessel,
or whether the list is too broad or too narrow.
3. As stated above in this preamble, instead of proposing a single
regulatory definition of ``timely access'' that would apply to all
facilities, we propose factors for facility owners and operators to
consider (and document in the FSP) so that they provide ``timely
access'' without unreasonable delay. We request comments on whether
this approach provides the necessary flexibility for a diverse
regulated population, while also providing COTP oversight to ensure
that ``timely access'' is reasonable in each case.
4. We request comments on whether the proposed 33 CFR 105.237(d)
provides an appropriately inclusive list of methods for providing
seafarers' access, or whether there any other methods that should be on
the list.
5. We request comments on our estimate, discussed below under
Section VI. Regulatory Analyses, that there is a 10.3 percent non-
compliance rate of MTSA-regulated facilities with respect to providing
seafarers' access.
6. We request comments on our cost estimates, discussed below under
Section VI. Regulatory Analyses, for FSP amendments and changes to
facility operations to implement the proposed rule's provisions.

[[Page 77988]]

7. We request comments on the regulatory alternatives to
implementing section 811 discussed below under Section VI. Regulatory
Analyses.

VI. Regulatory Analyses

We developed this proposed rule after considering numerous statutes
and executive orders related to rulemaking. Below we summarize our
analyses based on these statutes or executive orders. Details regarding
the regulatory analyses are located in the preliminary Regulatory
Analysis (RA), which can be found by following the directions in
paragraph I.B. above.

A. Regulatory Planning and Review

Executive Orders 13563 (``Improving Regulation and Regulatory
Review'') and 12866 (``Regulatory Planning and 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. The economic impact of this
rulemaking is not economically significant (i.e., the rulemaking has an
annual effect on the economy of $100 million or more a year).
This proposed rule is not a ``significant regulatory action'' under
section 3(f) of Executive Order 12866, and does not require an
assessment of potential costs and benefits under section 6(a)(3) of
that Order. The rule has not been reviewed by the Office of Management
and Budget. Nonetheless, we developed an analysis of the costs and
benefits of the proposed rule to ascertain its probably impacts on
industry. We consider all estimates and analysis in this RA to be
preliminary and subject to change in consideration of public comments.
Section 811 of the CGAA 2010 requires each MTSA-regulated facility,
in its FSP, to ``provide a system for seamen assigned to a vessel at
that facility, pilots, and representatives of seamen's welfare and
labor organizations to board and depart the vessel through the facility
in a timely manner at no cost to the individual.'' The CGAA 2010 builds
on the requirements set forth under 33 CFR 105.200(b)(9), which
stipulates that each facility owner or operator is currently required
to ``[e]nsure coordination of shore leave. . . .'' We propose to
require each owner or operator of a MTSA-regulated facility to
implement a system for providing seafarers and other individuals with
access between vessels moored at the facility and the facility gate.
Each owner or operator would be required to implement a system within 1
year after publication of the final rule that incorporates specific
methods of providing access in a timely manner, at no cost to the
individual, and in accordance with existing access control provisions
in 33 CFR part 105. We also propose to require each owner or operator
to ensure that the FSP includes a section describing the system for
seafarers' access. This proposed rule proposes six methods of providing
access as acceptable means of implementing a system of access. They are
as follows:
(1) Regularly scheduled escort between the vessel and the facility
gate that conforms to the vessel's watch schedule as agreed upon
between the vessel and facility;
(2) An on-call escort between the vessel and the facility gate;
(3) Arrangements with taxi services;
(4) Arrangements with seafarers' welfare organizations to
facilitate the access;
(5) Monitored pedestrian access routes between the vessel and
facility gate; or
(6) A method, other than those described above, approved by the
COTP.
If a MTSA-regulated facility provides a method of access via third
party (e.g., taxi service, seafarers' welfare organization, etc.), they
would need to have a ``back-up'' method so as to ensure access is
provided in a timely manner, provided it is approved by the COTP.
Table 1 provides a summary of the affected population, costs, and
benefits to this proposed rule.

Table 1--Summary of Affected Population, Costs, and Benefits
------------------------------------------------------------------------
Category Notice of proposed rulemaking
------------------------------------------------------------------------
Applicability................ Owners or operators of a facility
regulated by the Coast Guard are
required to implement a system that
provides seafarers and other individuals
with access between the shore and
vessels moored at the facility.
Affected population.......... 2,498 MTSA-regulated Facilities.
Seafarers and other covered individuals
that would receive access under the
proposed rule.
Total Cost to Industry and 10-year: $19.9 million.
Government * (7% discount Annualized: $2.8 million.
rate).
Benefits..................... Provides access through facilities for an
average of 907 seafarers and other
covered individuals that were otherwise
denied access annually. Reduces
regulatory uncertainty by harmonizing
regulations with Sec. 811 of Pub. L. 111-
281.
Conforms with the intent of the ISPS
Code.
Ensures the safety, health, and welfare
of seafarers.
------------------------------------------------------------------------
* Please refer to the preliminary RA in the docket for details.

A summary of the RA follows:
Affected Population
The effect of the proposed rule would be to require facilities
regulated by MTSA to implement a system of access for seafarers and
other individuals, and to document that system in their FSPs. Many
facilities already have a system that would likely satisfy this
proposed rule, but they would still need to update their FSPs to
document that system. Other facilities would have to both implement a
system and update their FSPs to document it.
Based on information about MTSA-regulated facilities captured in
the Coast Guard's internal database, the Marine Inspection, Safety and
Law Enforcement (MISLE), there are 2,498 facilities affected by this
rulemaking. We anticipate that all (2,498 facilities) would need to
modify their FSPs within 10 months \11\ of publication of the final

[[Page 77989]]

rule to document their system of providing access for seafarers and
other individuals. Any needed changes in subsequent years would be
accomplished under existing updates to FSPs or occurs as facilities
changes ownership.\12\
---------------------------------------------------------------------------

\11\ As explained above in the discussion of proposed Sec.
105.237(f), the deadline to implement operational changes resulting
from this rule would be one year after the final rule is published.
Since Coast Guard regulations already require FSP amendments to be
submitted for Coast Guard approval no later than 60 days before
implementing operational changes, the deadline for submitting FSP
amendments resulting from this rule would be 10 months after
publication of the final rule.
\12\ The number of FSPs have been decreasing from 2004 to 2014.
Therefore, we did not cost out changes to ownership.
---------------------------------------------------------------------------

In addition to documenting a system of access in their FSPs, some
facilities may need to modify operations to implement that system.
Based on a 2011 survey conducted by the Seamen's Church Institute's
(SCI) Center for Seafarers' Rights and discussions with the SCI, we
estimate that 10.3 percent of the facilities would need to update their
existing systems of access to conform to the standards of this
rulemaking.\13\ We used the 10.3 percent as our estimated non-
compliance rate. At this rate, 257 out of the total 2,498 facilities
affected by this rulemaking would need to develop and implement a
system of access through the facility for seafarers and other
individuals and document it in their FSPs.
---------------------------------------------------------------------------

\13\ Based on the 2011 SCI report 26 ports were surveyed. From
those 26 ports, 17 terminals would not conform to the requirement of
this proposed rule (pg. 3-4). Upon further investigation by USCG,
the Seamen's Church Institute stated that in 2011, they reviewed 165
terminals. The non-compliance rate is 17 terminals out compliance /
165 terminals surveyed = 10.3 percent non-compliance rate.
---------------------------------------------------------------------------

Costs
There are two main types of costs: administrative and operational.
Table 2 provides the outline of the proposed regulations and the
effects that these changes will have on the affected population.

Table 2--Cost Matrix
----------------------------------------------------------------------------------------------------------------

----------------------------------------------------------------------------------------------------------------
Section(s) and Descriptions Population Costs and Benefits
----------------------------------------------------------------------------------------------------------------
Sec. 101.112....................... Adds Federalism All facilities......... No cost because it
language. deals with the
interaction between
the federal government
and states.
Sec. 105.200(b)(1)-(6)............. Rewords language to All facilities......... No cost because it
clarify by adding the clarifies parameter of
word ``personnel'' and security personnel
removing the words It clarifies the
``within that acronyms
structure``.. It is a grammatical
Spells out acronyms.... change only.
Rewords language to
clarify.
Sec. 105.200(b)(9)................. Replaces the word, All facilities......... Cost to implement a
``coordination'' with All seafarers and system of access for
``implementation of a covered individuals seafarers and covered
system, in accordance that would receive individuals going
with Sec. 105.237 of access under this rule. through a facility.
this subpart,
coordinating``. Refers
to Sec.
105.237(b)(4).
Sec. 105.200(b)(14)................ Adds reference to Sec. All facilities......... No cost. Narrows
105.255(c). All seafarers and reference from entire
covered individuals section to paragraph
that would receive (c).
access under this rule.
Sec. 105.237(a)-(d)................ (a) Facilities must Non-conforming Cost for non-conforming
have procedures in facilities. facilities to
place to allow access All seafarers and implement a system of
through the facility. covered individuals access for seafarers
(b) Provides list of that would receive and covered
seafarers and covered access under this rule. individuals going
individuals. through a facility.
(c) Timing of access is
dependent on COTP.
(d) Outlines methods of
access.
(d)(3) Individual cost
is limited to local
taxi fare.
Sec. 105.237(e).................... Stipulates no cost to All facilities......... Cost may be passed onto
the individual. All seafarers and the vessel.
covered individuals
that would receive
access under this rule.
Sec. 105.237(f).................... Stipulates that a All facilities......... Paperwork cost to add
system of access must description in the
be documented in the FSP.
FSP.
Sec. 105.405(a)(9)................. Specifies the location All facilities......... Paperwork cost to add
in the FSP where description in the
facilities must FSP.
outline escorting
procedures.
----------------------------------------------------------------------------------------------------------------

All MTSA-regulated facilities are expected to incur administrative
costs and would need to update their FSPs to document their system of
access. While all MTSA-regulated facilities describe a system of
access, the description may not contain all of the proposed elements.
Thus, we determined that all facilities' FSPs would undergo
modification to incorporate a description of seafarers' access.

[[Page 77990]]

2,498 Population * (($63.40 wage \14\ * 6 hours \15\) + $6.07
stationery \16\) = $965,402
---------------------------------------------------------------------------

\14\ See Chapter 3.1 of the standalone RA for information
regarding wages.
\15\ In COI 1627-007, we estimate that it takes 100 hours to
create a new FSP made up of 18 sections. We estimate that it would
take 6 hours (100 hours / 18 sections = 5.55 hours) to create a new
section in the FSP.
\16\ Executive Administrative Assistant hourly wage $34.81 *
0.1667 hours + $0.10 paper = $6.07. See chapter 3.1 of the
standalone RA for information regarding wages.

We estimate that 257 facilities (10.3 percent of 2,498 facilities)
would be expected to incur operational costs and would also need to
modify their systems of access to conform to their modified FSPs. The
proposed rule provides six methods for providing access: (1) Regularly
scheduled shuttle service, (2) on-call service, (3) taxi service, (4)
arrangements with the seafarers' welfare organizations, (5) monitoring
of pedestrian routes, or (6) any other system, provided that the method
is approved by the COTP. This proposed rule would require a ``back-up''
method of access if a facility chooses a method that relies on a third
party. The back-up method would be how the facility ensures access if
the third party fails to provide access. For the purposes of this RA,
we assume that facilities would have a ``back-up'' system in place if
using the seafarers' welfare organization. We did not assume a back-up
method for the other since methods 1, 2, or 5 does not deal with third
parties, and because we assume that facilities would have a sufficient
number of taxis available for method 3. For the purposes of this RA, we
focus on the first five methods as primary methods of access, because
facilities would choose the sixth option only if it had higher value
(e.g., lower costs) than one of the first five.
Based on information from Coast Guard internal subject matter
experts (SMEs) and the costs associated with implementing the various
methods, we expect that a small percentage of facilities are large
enough, or carry out dangerous or hazardous operations, to warrant the
purchase of a van. Some facilities would opt to use taxi service, as it
provides flexibility to the facility as a relatively cheaper
alternative. Some would choose to use a seafarers' welfare organization
(Method 4) to provide transit, but due to these organizations' limited
resources, facilities would not be able to solely depend on a
seafarers' welfare organization to provide escort. We assume that most
facilities would choose monitoring (Method 5) since the majority of
them are small \17\ enough that existing security guards and/or
monitoring equipment in place would be sufficient. However, if
facilities choose this method, we anticipate 1 hour of training
annually to review security protocol in the event that a seafarer
leaves the designated passageway.
---------------------------------------------------------------------------

\17\ Based on information from Coast Guard facility inspectors
nationwide due to the fact that MISLE and other Coast Guard
databases do not capture the physical sizes of these facilities.
---------------------------------------------------------------------------

Table 3 provides the number of affected facilities and the per-
facility cost to modify operations to include a system of access and to
document it in their FSPs. Costs are broken down into initial cost to
affected populations and then annually recurring costs.\18\
---------------------------------------------------------------------------

\18\ Please refer to table 5 for 10-year breakdown in total
cost.

Table 3--Per-Facility Administrative and Operational Costs
[By method]
----------------------------------------------------------------------------------------------------------------
Annual
Cost description Population Initial cost recurring cost
----------------------------------------------------------------------------------------------------------------
Cost Per Facility (FSP Documentation)........................... 2,498 386 0
Cost Per Facility Operations:
Method 1: Regularly Scheduled Shuttle....................... 26 63,759 35,655
Method 2: On-call Service................................... 51 52,154 24,050
Method 3: Taxi.............................................. 51 7,619 3,208
Methods 4: Seafarers' Welfare Organization.................. 26 3,208 1,203
Method 5: Monitoring of Pedestrian Routes................... 103 181 181
Method 6: Alternate means of access, approved by the COTP... N/A N/A N/A
----------------------------------------------------------------------------------------------------------------

Table 4 provides the key unit costs for the methods. Please refer
to the standalone RA for the calculations of the costs by method.

Table 4--Key Inputs for Methods 1-5
----------------------------------------------------------------------------------------------------------------
Key input Cost Source
----------------------------------------------------------------------------------------------------------------
Security guard wage..................... $19.41..................... https://www.bls.gov/oes/2012/may/oes339032.htm.
Cargo and Freight Agents Wage........... $30.18..................... https://www.bls.gov/oes/2012/may/oes435011.htm.
Managers................................ $63.35..................... https://www.bls.gov/oes/2012/may/oes113071.htm.
Secretaries............................. $35.81..................... https://www.bls.gov/oes/2012/may/oes436011.htm.
Van..................................... ranges from $25,060 to https://www.ford.com/commercial-trucks/e-
$35,620. serieswagon/models/.
https://www.toyota.com/sienna/trims-prices.html.
https://www.gm.com/vehicles/browseByType.html#/?price=120000&brand=all&type=van&appState=list e=list.
Cost of Gas............................. $4.04...................... https://fuelgaugereport.aaa.com/?redirectto=https://fuelgaugereport.opisnet.com/index.asp.
Average Miles per Gallon................ 13......................... https://www.fueleconomy.gov/feg/byclass/Vans__Passenger_Type2012.shtml.
Driving Speed........................... ranges from 15 mph to 30 https://www.panynj.gov/port/pdf/highway-
mph. speed-limits-2008.pdf.
https://www.massport.com/port-of-boston/Conley%20Terminal/TerminalProcess.aspx.
https://www.fmtcargo.com/terminal_guides/fmt_guide_burns_harbor.pdf.
https://www.fmtcargo.com/terminal_guides/fmt_guide_cleveland.pdf.

[[Page 77991]]

https://www.fmtcargo.com/terminal_guides/fmt_guide_port_manatee.pdf.
https://www.fmtcargo.com/terminal_guides/fmt_guide_lake_charles.pdf.
https://www.fmtcargo.com/terminal_guides/fmt_guide_milwaukee.pdf.
Driving Time............................ 0.33 hours................. SME.
TWIC.................................... $401.00.................... https://www.tsa.gov/what_we_do/layers/twic/twic_faqs.shtm#twic_process.
Taxi Driver Wage........................ $17.92..................... https://www.bls.gov/oes/2012/may/oes533041.htm.
Miles to an enrollment Center........... 100 miles.................. STCW.
Average Commute Speed................... 28.87...................... https://nhts.ornl.gov/2009/pub/stt.pdf.
Mileage Reimbursement Rate.............. $0.56...................... https://www.gsa.gov/portal/content/100715.
----------------------------------------------------------------------------------------------------------------

Table 5 provides the total costs over 10 years, to include the
initial cost and annually recurring costs.

Table 5--Summary of Industry Costs 10-Year, 7 and 3 Percent Discount Rates
----------------------------------------------------------------------------------------------------------------
Undiscounted Annualized 7% Annualized 3%
cost discount cost discount cost
----------------------------------------------------------------------------------------------------------------
Year 1.................................................... $5,773,631 $5,395,917 $5,605,467
Year 2.................................................... 2,367,130 2,067,543 2,231,247
Year 3.................................................... 2,367,130 1,932,283 2,166,259
Year 4.................................................... 2,367,130 1,805,872 2,103,164
Year 5.................................................... 2,367,130 1,687,731 2,041,907
Year 6.................................................... 2,367,130 1,577,319 1,982,434
Year 7.................................................... 2,367,130 1,474,130 1,924,693
Year 8.................................................... 2,367,130 1,377,691 1,868,634
Year 9.................................................... 2,367,130 1,287,562 1,814,208
Year 10................................................... 2,367,130 1,203,329 1,761,367
-----------------------------------------------------
Total................................................. 27,077,801 19,809,376 23,499,382
----------------------------------------------------------------------------------------------------------------
Annualized................................................ ................ 2,820,410 2,754,844
----------------------------------------------------------------------------------------------------------------

Based on information from the SMEs, we estimate that it would take
between 15 and 30 minutes for an E-4, E-5, or E-6 to review the updated
FSP. We calculate the one-time cost to review all FSPs to be as
follows: 2,498 FSPs * $48.33 wage rate/hour * 0.5 hours = $60,364
Table 6 provides the 10-year cost to both the government and
industry.

Table 6--Summary of Industry and Government Costs 10-Year, 7 and 3 Percent Discount Rates
----------------------------------------------------------------------------------------------------------------
Undiscounted Annualized 7% Annualized 3%
cost discount cost discount cost
----------------------------------------------------------------------------------------------------------------
Year 1.................................................... $5,833,995 $5,452,332 $5,664,073
Year 2.................................................... 2,367,130 2,067,543 2,231,247
Year 3.................................................... 2,367,130 1,932,283 2,166,259
Year 4.................................................... 2,367,130 1,805,872 2,103,164
Year 5.................................................... 2,367,130 1,687,731 2,041,907
Year 6.................................................... 2,367,130 1,577,319 1,982,434
Year 7.................................................... 2,367,130 1,474,130 1,924,693
Year 8.................................................... 2,367,130 1,377,691 1,868,634
Year 9.................................................... 2,367,130 1,287,562 1,814,208
Year 10................................................... 2,367,130 1,203,329 1,761,367
-----------------------------------------------------
Total................................................. 27,138,165 19,865,791 23,557,987
----------------------------------------------------------------------------------------------------------------
Annualized................................................ ................ 2,828,442 2,761,715
----------------------------------------------------------------------------------------------------------------

For more details, please refer to the cost chapter of the
preliminary RA in the docket.
Benefits
The primary benefit to this rule is to provide individuals, with a
legitimate purpose, access to or egress from the vessel to the facility
gate. The Center for Seafarers' Rights organization, reports on the
number of seafarers that are denied access through the terminal. Based
on the SCI's surveys from 2006 to

[[Page 77992]]

2014, there was an average of 907 seafarers that were denied shore
leave access due to terminal restrictions. While it was reported that
there were denials of access to other individuals with a legitimate
purpose, we do not have the numbers of facilities that do not provide
access nor do we have the numbers of other individuals denied access.
The benefit to this rule is that seafarers and other authorized
individuals that would otherwise be denied access due to terminal
restrictions would be able to obtain shore leave access.
Providing seafarers' access ensures the safety, health, and welfare
of seafarers. Generally, transiting through a MTSA-facility is the only
way for seafarers to access the shore, visit doctors, obtain
prescriptions, visit businesses, visit family members and friends,
among other things, beyond the facility.
Another benefit to this rule is that it conforms to international
conventions, specifically the International Ship and Port Facility
Security Code. In light of this international agreement, if the U.S. is
known internationally for having facilities that do not provide shore
leave access, other countries may consider denying shore leave access
to U.S. seafarers while they are abroad.
Additionally, individuals providing services for seafarers or
having another legitimate purpose for accessing the vessel, such as
representatives of seafarers' welfare and labor organizations, port
workers organizations, port engineers or superintendents, generally can
only access vessels moored at MTSA-regulated facilities by transiting
through the facility.
Finally, this rule reduces regulatory uncertainty by harmonizing
the Coast Guard's regulations with section 811 of the CGAA (Pub. L.
111-281).
The benefits to this rulemaking are described in Table 7.

Table 7--Summary of Benefits
------------------------------------------------------------------------
Implications Definitions
------------------------------------------------------------------------
Seafarers' Access............ From 2006 to 2014, there were an average
907 reported seafarers that were denied
access due to terminal restrictions.
This ensures that these seafarers would
be allowed access.
Ensures the safety, health, and welfare
of seafarers.
International Conventions.... Conforms with the intent of the ISPS
Code.
Regulatory Uncertainty....... Reduces regulatory uncertainty by
harmonizing the Coast Guard's
regulations with Sec. 811 of Pub. L. 111-
281.
------------------------------------------------------------------------

Alternatives
We propose several ways to ensure seafarers' access: the proposed
alternative (which is the chosen alternative), and four other
alternatives.
Proposed Alternative:
The proposed alternative is to amend Coast Guard regulations to
require MTSA-regulated facilities to implement a system of seafarers'
access and to amend their FSPs to document that system. This
alternative was chosen because it provides regulatory flexibility at
the least cost option that would comply with the intent of the statute.
Other Considered Alternatives:
Alternative 1--No change to regulations. Instead of amending the
current regulations, COTPs would deny approval of FSPs that do not
adequately address shore leave procedures in their security plans.
While this approach may address some deficiencies at some facilities,
we reject this alternative because it would not provide clear and
consistent regulatory standards for facilities to implement and COTPs
to enforce. Additionally, the current regulation in 33 CFR
105.200(b)(9) does not explicitly require facility owners and operators
to provide timely, no cost access to seafarers, or to include
seafarers' access provisions in their security plans. Section 811 makes
these issues mandatory, necessitating an update to our regulations.
Alternative 2--Require a section of the Declaration of Security
(DoS) between the facility and the vessel to include the facility's
seafarers' access procedures. We rejected this alternative due to the
heavy burden it would place on the industry (see Chapters 1.3 and 5.2
of the preliminary RA for more details on the cost of this
alternative). Additionally, this alternative would not specifically
target facilities with existing seafarers' access issues, and would
require a DoS between many facilities and vessels that would not
otherwise be required to have one.
Alternative 3--Require facilities to implement specific and
prescriptive procedures for seafarers' access and to include these
procedures in their FSPs. This alternative would not allow facilities
any flexibility or choice in the method of access appropriate for their
facility and operations. One example of a prescriptive measure would be
to require that all facilities provide shuttle service for all
seafarers, 24-hours a day. Although this would solve the issues
associated with seafarers' access, we do not support this alternative
due to the heavy burden it would place on industry, resulting from
prescribed major procedural and operational changes required for all
facilities and higher costs associated with implementing such
prescriptive regulations.
Alternative 4--Publish guidance to industry clarifying that 33 CFR
105.200(b)(9) affirmatively requires facility owners/operators to
provide shore leave and visitor access. We do not support this
approach, because this approach has already been implemented, but has
not completely solved the problems with seafarers' access at some
facilities. Some remaining facilities still deny seafarers' access
altogether or make shore access impractical based on a
misinterpretation of our existing regulations (i.e., they contend that
since 33 CFR 105.200(b)(9) only requires coordination of shore leave if
there is actual shore leave to coordinate, and there is no shore leave
to coordinate if access to shore is denied altogether). Though this
alternative has been implemented, we have continued to receive
complaints that some facilities grant seafarers' access to and from
vessels, but make it impractical by placing extreme limitations on
escort availability or charging exorbitant fees.
Additionally, the current regulation in 33 CFR 105.200(b)(9) does
not require facility owners and operators to provide timely, no cost
access to seafarers, or to include seafarers' access provisions in
their FSPs. Section 811 makes these issues mandatory, necessitating an
update to our regulations to avoid regulatory uncertainty.

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

[[Page 77993]]

owned and operated and are not dominant in their fields, and
governmental jurisdictions with populations of fewer than 50,000
people.
An Initial Regulatory Flexibility Analysis discussing the impact of
this proposed rule on small entities is available in the docket where
indicated under the ``Public Participation and Request for Comments''
section of this preamble.
Based on available data, we identified 1,393 owners of the 2,498
facilities affected by this proposed rule. Of the 1,393 owners, we
researched a sample of 304 owners to determine the size and revenue
characteristics of the population. Based on the sample population of
304 owners, we estimate that approximately 77 percent are small
entities, as defined by the Small Business Administration (SBA) or
other applicable size standards. Facility owners are entities that
could be businesses, non-profit organizations, or government agencies.
For more details, please refer to the Initial Regulatory Flexibility
Analysis chapter in the preliminary RA, available in the docket.
Because we have no way to determine which facilities (and, therefore,
which entities) would need to implement a system of access, we
performed two analyses. The first assesses the impact on small entities
for the FSP documentation only. The second estimates the impact from a
combined FSP documentation and implementation.
Assuming all small entities only have to document a system of
access in their FSP, this proposed rule would have an impact on small
entities of less than 1 percent of revenues for all small entities.
For facilities that have to modify operations and document the new
system of access in their FSP, 68 percent would have an impact of 1
percent or less, 26 percent would have an impacts of greater than 1
percent to 10 percent, and 6 percent would have a revenue impact of
greater than 10 percent. Table 8 provides the breakdown of impacts.

Table 8--Revenue Impact on Small Entities
------------------------------------------------------------------------
Initial
Revenue impact implementation Annual recurring
cost costs
------------------------------------------------------------------------
FSP Only Cost
------------------------------------------------------------------------
Cost to Modify FSP................ $386 .................
0% < Impact <= 1%................. 100% .................
------------------------------------------------------------------------
FSP Plus Access Implementation
------------------------------------------------------------------------
Per facility cost (weighted $18,724 $9,210
average).........................
0% < Impact <= 1%................. 66% 82%
1% < Impact <= 3%................. 23% 8%
3% < Impact <= 5%................. 1% 4%
5% < Impact <= 10%................ 4% 3%
Above 10%......................... 6% 3%
------------------------------------------------------------------------

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 consult LT Mason Wilcox,
Cargo and Facilities Division (CG-FAC-2), Coast Guard; telephone 202-
372-1123, email Mason.C.Wilcox@uscg.mil. 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 collections, 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 this proposed rule, the affected facilities
and vessels would be required to update their FSPs to include
provisions of seafarers' access. This requirement would be added to an
existing approved collection covered by Office of Management and Budget
(OMB) control number 1625-0077.
Title: Security Plans for Ports, Vessels, Facilities, and Outer
Continental Shelf Facilities and other Security-Related Requirements
OMB Control Number: 1625-0077.
Summary of the Collection of Information: This proposed rule would
modify an existing collection of information, in proposed Sec. Sec.
105.200 through 105.405, for owners and operators of certain MTSA-
regulated facilities. MTSA-regulated facilities would need to include a
description of seafarers' access in their FSPs. These requirements
would require a one-time change in previously approved OMB Collection
1625-0077.
Proposed Use of Information: The Coast Guard would use this
information to determine whether a facility is providing adequate
seafarers' access provisions between the vessel and the facility gate.
Description of the Respondents: The respondents are owners and
operators of

[[Page 77994]]

MTSA-regulated facilities regulated by the Coast Guard under 33 CFR
Chapter I, subchapter H.
Number of Respondents: The adjusted number of respondents is 10,158
for vessels, 5,234 for facilities, and 56 for Outer Continental Shelf
facilities. Of these 5,234 facilities, 2,498 would be required to
modify their existing FSPs.
Frequency of Response: There will be a one-time response for all
2,498 respondents. The FSP would need to be updated within 10 months
after publication of the final rule.
Burden of Response: This includes a one-time, 14,988-hour burden.
The burden resulting from this NPRM is 6 hours per respondent.
Estimate of Total Annual Burden: The estimated implementation
period burden for facilities is 6 hours per FSP amendment. Since 2,498
facilities would be required to modify their existing FSPs, the total
burden would be 14,988 hours = (2,498 facilities * 6 hours).
The current burden listed in this collection of information is
1,108,043 hours. The new burden, as a result of this proposed
rulemaking, would be 1,123,031 hours (1,108,043 + 14,988).
As required by the Paperwork Reduction Act of 1995 (44 U.S.C.
3507(d)), we will submit a copy of this proposed rule to the OMB for
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 OIRA 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 Coast
Guard could enforce the collection of information requirements in this
proposed rule, OMB would need to approve the Coast Guard's request to
collect this information.

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 and have determined
that it is consistent with the fundamental Federalism principles and
preemption requirements described in Executive Order 13132.
This proposed rule would update existing regulations in 33 CFR part
105 by requiring each owner or operator of a facility regulated by the
Coast Guard to implement a system that provides seafarers and other
individuals with access through the facility. Additionally, this
proposed rule would add requirements to amend security plans in order
to ensure compliance.
It is well-settled that States may not regulate in categories
reserved for regulation by the Coast Guard. (See the decision of the
Supreme Court in the consolidated cases of United States v. Locke and
Intertanko v. Locke, 529 U.S. 89, 120 S. Ct. 1135 (March 6, 2000)). The
Coast Guard believes the Federalism principles articulated in Locke
apply to the regulations promulgated under the authority of MTSA.
States and local governments are foreclosed from regulating within the
fields covered by regulations found in 33 CFR parts 101, 103, 104, and
106. However, with regard to regulations found in 33 CFR part 105,
State maritime facility regulations are not preempted so long as these
State laws or regulations are more stringent than what is required by
33 CFR part 105 and no actual conflict or frustration of an overriding
need for national uniformity exists.
While it is well settled that State law or regulations will be
preempted where Congress intended Coast Guard regulations to have
preemptive effect, the Coast Guard recognizes the key role that State
and local governments may have in making regulatory determinations.
Additionally, for rules with federalism implications and preemptive
effect, Executive Order 13132 specifically directs agencies to consult
with State and local governments during the rulemaking process. If you
believe this rule has implications for federalism under Executive Order
13132, please contact the person listed in the FOR FURTHER INFORMATION
section of this preamble.

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 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.

[[Page 77995]]

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 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 use technical standards. Therefore, we
did not consider the use of voluntary consensus standards.

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 is likely to be
categorically excluded under section 2.B.2, figure 2-1, paragraph
(34)(a) and (c) of the Instruction and 6(a) of the final agency policy
published at 67 FR 48243 on July 23, 2002. This rule involves
regulations which are editorial or procedural, regulations concerning
training, qualifying, licensing, and disciplining of maritime personnel
and regulations concerning vessel operation safety standards. 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, Incorporation by reference, Maritime security, Reporting
and recordkeeping requirements, Security measures, Vessels, Waterways.

33 CFR Part 105

Maritime security, Reporting and recordkeeping requirements,
Security measures.

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

33 CFR--Navigation and Navigable Waters

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.

0
2. Add Sec. 101.112 to read as follows:

Sec. 101.112 Federalism.

(a) [RESERVED]
(b) The regulations in 33 CFR part 105 have preemptive effect over
State or local regulations insofar as a State or local law or
regulation applicable to the facilities covered by part 105 would
conflict with the regulations in part 105, either by actually
conflicting or frustrating an overriding Federal need for uniformity.

PART 105--MARITIME SECURITY: FACILITIES

0
3. 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.

Sec. 105.200 [Amended]

0
4. Amend Sec. 105.200 as follows:
0
a. In paragraph (b)(1), after the words ``Define the'', remove the
words ``security organizational structure'' and add, in their place,
the words ``organizational structure of the security personnel''; and
after the word ``responsibilities'', remove the words ``within that
structure'';
0
b. In paragraph (b)(4), remove the words ``an FSP'' and add, in their
place, the words ``a Facility Security Plan (FSP)'';
0
c. In paragraph (b)(6), remove the acronym ``TWIC'' and add, in its
place, the words ``Transportation Worker Identification Credential
(TWIC)'';
0
d. In paragraph (b)(6)(i), after the words ``FSP are permitted to'',
add the words ``serve as an'', and at the end of the sentence, remove
the symbol ``;'', and add, in its place, the symbol ``.'';
0
e. In paragraph (b)(6)(ii), after the words ``or other authorized
individual,'', remove the word ``should'' and add, in its place, the
words ``in the event that'', and at the end of the sentence, remove the
symbol and word ``; and'', and add, in its place, the symbol ``.'';
0
f. In paragraph (b)(6)(iii), after the word ``employees'', remove the
symbol ``,''; remove the word ``what'', and add, in its place, the word
``which''; and after the words ``are secure areas and'', add the words
``which are'';
0
g. In paragraph (b)(8), after the abbreviation ``(DoS)'', add the
symbol ``,'';
0
h. In paragraph (b)(9), after the word ``Ensure'', remove the words
``coordination of'', and add, in their place, the words
``implementation of a system, in accordance with Sec. 105.237 of this
subpart, coordinating''; and after the words ``for visitors to the
vessel'', remove the words ``(including representatives of seafarers'
welfare and labor organizations)'' and add, in their place, the words
``, as described in Sec. 105.237(b)(4) of this subpart''
0
i. In paragraph (b)(14), after the words ``and of their obligation to
inform'', remove the acronym ``TSA'' and add, in its place, the words
``Transportation Security Administration (TSA)''; and
0
j. In paragraph (b)(15), after the words ``protocols consistent with'',
remove the words ``section 105.255(c)'' and add, in their place, the
words ``paragraph (c) of Sec. 105.255''.
0
5. Add Sec. 105.237 to read as follows:

Sec. 105.237 System for seafarers' access.

(a) Access Required. Each facility owner or operator must implement
a system by (365 DAYS AFTER DATE OF PUBLICATION OF FINAL RULE) for
providing access through the facility that enables individuals to
transit to and from a vessel moored at the facility and the facility
gate in accordance with the requirements in this section. The system
must provide timely access as described in paragraph (c) of this
section and incorporate the access methods described in paragraph (d)
of this section at no cost to the individuals covered. The system must
comply with the Transportation Worker Identification Credential (TWIC)
provisions in this part.
(b) Individuals Covered. The individuals to whom the facility owner
or operator must provide the access described in this section include--
(1) The seafarers assigned to a vessel moored at the facility;
(2) The pilots and other authorized personnel performing work for a
vessel moored at the facility;

[[Page 77996]]

(3) Representatives of seafarers' welfare and labor organizations;
and
(4) Other authorized individuals in accordance with the Declaration
of Security (DoS) or other arrangement between the vessel and facility.
(c) Timely Access. The facility owner or operator must provide the
access described in this section without unreasonable delay, subject to
review by the Captain of the Port (COTP). The facility owner or
operator must consider the following when establishing timely access
without unreasonable delay:
(1) Length of time the vessel is in port.
(2) Distance of egress/ingress between the vessel and facility
gate.
(3) The vessel watch schedules.
(4) The facility's safety and security procedures as required by
law.
(5) Any other factors specific to the vessel or facility that could
affect access to and from the vessel.
(d) Access Methods. The facility owner or operator must ensure that
the access described in this section is provided through one or more of
the following methods:
(1) Regularly scheduled escort between the vessel and the facility
gate that conforms to the vessel's watch schedule as agreed upon
between the vessel and facility.
(2) An on-call escort between the vessel and the facility gate.
(3) Arrangements with taxi services, ensuring that any costs for
providing the access described in this section, above the taxi's
standard fees charged to any customer, are not charged to the
individual to whom such access is provided. If a facility provides
arrangements with taxi services as the only method for providing the
access described in this section, the facility is responsible to pay
the taxi fees for transit within the facility.
(4) Arrangements with seafarers' welfare organizations to
facilitate the access described in this section.
(5) Monitored pedestrian access routes between the vessel and
facility gate.
(6) A method, other than those in paragraphs (d)(1) through (d)(5)
of this section, approved by the COTP.
(7) If an access method relies on a third party, a back-up access
method that will be used if the third-party is unable to or does not
provide the required access in any instance. An owner or operator must
ensure that the access required in paragraph (a) of this section is
actually provided in all instances.
(e) No cost to individuals. The facility owner or operator must
provide the access described in this section at no cost to the
individual to whom such access is provided.
(f) Described in the Facility Security Plan (FSP). On or before
[INSERT DATE 10 MONTHS AFTER PUBLICATION OF THE FINAL RULE], the
facility owner or operator must document the facility's system for
providing the access described in this section in the approved FSP in
accordance with 33 CFR 105.410 or 33 CFR 105.415. The description of
the facility's system must include--
(1) Location of transit area(s) used for providing the access
described in this section;
(2) Duties and number of facility personnel assigned to each duty
associated with providing the access described in this section;
(3) Methods of escorting and/or monitoring individuals transiting
through the facility;
(4) Agreements or arrangements between the facility and private
parties, nonprofit organizations, or other parties, to facilitate the
access described in this section; and
(5) Maximum length of time an individual would wait for the access
described in this section, based on the provided access method(s).
0
6. Amend Sec. 105.405 as follows:
0
a. In paragraph (a), at the end of the first sentence, remove the text
``(a)'';
0
b. Redesignate paragraphs (a)(9) through (a)(18) as (a)(10) through
(a)(19);
0
c. In newly designated paragraphs (a)(18) and (a)(19), at the beginning
of the paragraphs, add the word ``The'' before the word ``Facility'';
and
0
d. Add new paragraph (a)(9) as follows:

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

(a) * * *
(9) System for seafarers' access;
* * * * *

Dated: December 17, 2014.
J.C. Burton,
Captain, U.S. Coast Guard, Director of Inspections & Compliance.
[FR Doc. 2014-30013 Filed 12-24-14; 8:45 am]
BILLING CODE 9110-04-P

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