[Federal Register Volume 61, Number 139 (Thursday, July 18, 1996)]
[Rules and Regulations]
[Pages 37648-37655]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-18115]
[[Page 37647]]
_______________________________________________________________________
Part IV
Department of Transportation
_______________________________________________________________________
Coast Guard
_______________________________________________________________________
33 CFR Parts 120 and 128
Security for Passenger Vessels and Passenger Terminals; Rule
Federal Register / Vol. 61, No. 139, Thursday, July 18, 1996 / Rules
and Regulations
[[Page 37648]]
DEPARTMENT OF TRANSPORTATION
Coast Guard
33 CFR Parts 120 and 128
[CGD 91-012]
RIN 2115-AD75
Security for Passenger Vessels and Passenger Terminals
AGENCY: Coast Guard, DOT.
ACTION: Interim Rule with request for comments.
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SUMMARY: The Coast Guard is implementing an interim rule for the
security of passenger vessels and passenger terminals. This rule is
intended to deter, or mitigate the results of, terrorism and other
unlawful acts against passenger vessels and passenger terminals. It
should reduce the likelihood of such acts and should reduce the damage
to property and injury to persons, if such acts occur.
DATES: This rule is effective on October 16, 1996. Comments must be
received on or before September 16, 1996. The Director of the Federal
Register approves as of October 16, 1996 the incorporation by reference
of certain publications listed in the rule.
ADDRESSES: Comments may be mailed to the Executive Secretary, Marine
Safety Council (G-LRA, 3406) (CGD 91-012), U.S. Coast Guard
Headquarters, 2100 Second Street SW., Washington, DC 20593-0001, or may
be delivered to room 3406 at the same address between 9:30 a.m. and 2
p.m., Monday through Friday, except Federal holidays. The telephone
number is (202) 267-1477. Comments on collection-of-information
requirements must be mailed also 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 Executive Secretary maintains the public docket for this
rulemaking. Comments will become part of this docket and will be
available for inspection or copying at room 3406, U.S. Coast Guard
Headquarters, between 8 a.m. and 3 p.m., Monday through Friday, except
Federal holidays.
A copy of the material listed in ``Incorporation by Reference'' of
this preamble is available for inspection at room 1312, U.S. Coast
Guard Headquarters.
FOR FURTHER INFORMATION CONTACT:
CDR Dennis J. Haise, Office of Marine Safety, Security, and
Environmental Protection (G-MOS-2), Room 1208, (202) 267-6451, between
7:00 a.m. and 3:30 p.m., Monday through Friday, except Federal
holidays.
SUPPLEMENTARY INFORMATION:
Request for Comments
The Coast Guard encourages interested persons to participate in
this rulemaking by submitting written data, views, or arguments.
Persons submitting comments should include their name and address,
identify this rulemaking (CGD 91-012) and the specific section of this
proposal to which each comment applies, and give the reason for each
comment. Please submit two copies of all comments and attachments in an
unbound format, no larger than 8\1/2\ by 11 inches, suitable for
copying and electronic filing. Persons wanting acknowledgment of
receipt of comments should enclose stamped, self-addressed postcards or
envelopes.
The Coast Guard will consider all comments received during the
comment period. It may change this rule in view of the comments.
The Coast Guard held 3 public meetings after a notice of proposed
rulemaking (NPRM) entitled ``Security for Passenger Vessels and
Passenger Terminals'' was published (See 59 FR 14290; March 25, 1994)
and plans no further public hearing. Persons may request a public
hearing by writing to the Marine Safety Council at the address under
ADDRESSES. The request should include the reasons why a hearing would
be beneficial. If it determines that the opportunity for oral
presentations will aid this rulemaking, the Coast Guard will hold a
public hearing at a time and place announced by a later notice in the
Federal Register.
Regulatory Information
On March 25, 1994, the Coast Guard published (59 FR 14290) a notice
of proposed rulemaking (NPRM) entitled ``Security for Passenger Vessels
and Passenger Terminals''.
Background and Purpose
The vulnerability to terrorism of passenger vessels and associated
passenger terminals has been a major national and international concern
since the death of a U.S. citizen during the hijacking of the ACHILLE
LAURO in 1985. To address this threat, the President signed into law
the Omnibus Diplomatic Security and Antiterrorism Act of 1986 (Pub. L.
99-399; 100 Stat. 889), Title IX of which constitutes the International
Maritime and Port Security Act. That Act amended the Ports and
Waterways Safety Act (33 U.S.C. 1221), and provided the Coast Guard
authority to ``carry out or require measures, including inspections,
port and harbor patrols, the establishment of security and safety
zones, and the development of contingency plans and procedures, to
prevent or respond to acts of terrorism'' (Sec. 906).
The International Maritime Organization (IMO) adopted and published
``Measures to Prevent Unlawful Acts Against Passengers and Crews on
Board Ships'', also in 1986. Those measures, which are guidelines,
apply to passenger ships engaged on international voyages of 24 hours
or more and to the port facilities that serve them. The Coast Guard
published a notice in the Federal Register listing these measures as
``guidelines'' and encouraging voluntary compliance (52 FR 11587; April
9, 1987).
Since that time, the Coast Guard has relied upon voluntary
compliance with the IMO measures, and with its own guidelines based on
the IMO measures, to ensure that passenger vessels and passenger
terminals were prepared to prevent, and respond to, acts of terrorism.
Coast Guard encouragement to implement these measures has brought about
varying degrees of acceptance. Initially, the response was promising as
many passenger vessels and associated passenger terminals operating in
the U.S. began implementing them. However, the degree of implementation
has been inconsistent. Progress toward total implementation has slowed
significantly over the last 3 years. Some passenger vessels and
passenger terminals still do not maintain and administer appropriate
security measures. The Coast Guard has determined that voluntary
compliance has not produced the industry-wide level of security
necessary to ensure that acts of terrorism are deterred, or responded
to, in the best possible manner.
Terrorism has not decreased. In fact, the Coast Guard has seen an
increase in domestic terrorism along with a consistent, if not
increasing, threat of international terrorism. For these reasons, the
Secretary of the Department of Transportation (DOT) has asked all
agencies of the Department to reassess their security procedures and
standards. Consequently, the Coast Guard determined that implementing a
rule to ensure that passenger vessels and passenger terminals are
prepared to handle terrorist threats or actions was necessary.
The decision to move from an NPRM to this interim rule is based on
the fact that domestic terrorism, as well as international terrorism,
seems to be increasing. Passenger vessels and passenger terminals are
vulnerable and,
[[Page 37649]]
therefore, must begin developing plans to reduce the risk of terrorism
against them.
Discussion of Comments and Changes
The Coast Guard received 115 letters of comment and held 3 public
meetings. Thirty-three comments, and several speakers at the public
hearings, expressed their concern that the NPRM was too stringent and
inflexible. Many also felt that the proposed requirements were over and
above those recommended in the IMO measures that the Coast Guard had
encouraged the industry to adopt. As a result of the many comments
received, the Coast Guard has reconsidered its position on the scope of
the rule and has decided to align the rule as closely as possible with
the IMO measures by incorporating the requirements of Circular 443 of
the IMO's Maritime Safety Committee (MSC) into the rule (See
Secs. 120.220 and 120.230; 128.220 and 128.230). The Coast Guard has
determined that Circular 443 contains the basic elements necessary to
develop a sound security program, and will give industry the
flexibility that so many felt were missing from the NPRM.
Another issue consistently raised by the comments was the
perception that the current threat does not merit the degree of
security specified in the NPRM. The Coast Guard agrees with this
general observation; however, it believes that the need for increased
security continues. Although the threat level today may be low, the
possibility remains that it may escalate at any time. National-security
assessments over the past several years attest that terrorism continues
throughout the world. The United States is not exempt from terrorism as
evidenced by the bombing in 1995 at Oklahoma City. There is little
question that the threat of terrorism from both domestic and
international terrorists is, in fact, real.
Vulnerability has also been an important consideration in
determining the need for this rule. In general, the cruise industry
lacks identifiable security standards. Further, this industry is such
that its operations are generally vulnerable to terrorist activities.
The intent of this rule is to require passenger vessels and passenger
terminals to evaluate their vulnerability, develop methods to reduce
it, and establish plans to respond to increased threat. The
promulgation of security standards will increase security, and should
reduce vulnerability and the risk of a terrorist incident.
The Coast Guard understands, however, that the need for maximum
security does not exist at all times and has amended the rule to define
levels of threat for which security plans must be developed. It has
added three definitions to Sec. 120.110, for low, medium, and high
threats. A low threat is one when the possibility of an unlawful act
against a vessel or terminal exists, and indications are that a general
worldwide threat of terrorism exists. This is the threat level for
which security measures must be maintained for an indefinite period of
time; in other words, these are the normal, everyday security measures.
A medium threat is one where the threat of an unlawful act against a
vessel or terminal is possible, and where intelligence indicates that
terrorist activities are likely within a specific area, against a class
of vessel, or against a type of terminal. This threat level indicates
that a particular segment of the industry is in jeopardy but that no
specific target has been identified. A high threat is one where
intelligence indicates that terrorist activities have targeted a
specific vessel or terminal and that the threat of an unlawful act
against a vessel or terminal is probable if not imminent. The Coast
Guard envisions that medium and high threats would not last long and
would focus on only a small portion of the industry at any one time.
Distribution and notification of threat levels will be the
responsibility of the Coast Guard. The Commandant (G-MRO) will be
responsible for ensuring that Captains of the Port (COTPs) advise
passenger vessels and passenger terminals within their areas of
responsibility of a higher or lower threat level. The vessel or
terminal can and should increase its security whenever suspect
activities are noted by their own personnel or other reliable sources
such as the Federal Bureau of Investigations (FBI) or local law-
enforcement authorities. Increases in threat level initiated by the
vessel, terminal, or other sources shall be reported by the affected
vessel or terminal to the local COTP as soon as practicable. With these
amendments, the Coast Guard believes, the rule will allow owners and
operators to continue to operate as they normally do; however, they
will now have plans in place to increase security when advised by the
Coast Guard or other competent authority.
Thirteen comments expressed concerns for the amount of equipment
that would have to be purchased to comply with the proposed rule. With
the incorporation of the MSC Circular 443 requirements into the rule,
equipment is no longer specified or required. Owners or operators must
use the annexes within the Circular to determine how best to protect
their passengers.
Eighteen comments addressed what was felt as the Coast Guard's lack
of consideration for smaller ports, or those ports at which passengers
disembark for only short periods of time. The Coast Guard disagrees. If
a port does not embark or disembark a large number of people with a
substantial amount of baggage, then the degree of security decreases.
In some instances, the only security necessary may be the screening of
carry-on items; this may best be handled by the vessel. The rule
specifically states that the operator of the terminal need not
duplicate any provisions fulfilled by the operator of the vessel, or
vice versa, unless directed by the Commandant. Each terminal will have
to develop a plan addressing normal operations as well as operations
during higher threats. This plan will be based on the amount and type
of activity occurring within that port. It will be examined by the
cognizant COTP, who has a working relationship with the port. The
COTP's evaluation of the plan will depend upon the location of the port
and upon the ability of the owner or operator of the vessel or terminal
to meet the measures required for all three threat levels.
Nine comments expressed concern that the rule would be pointless
unless enforced equally worldwide. The Coast Guard does not have the
authority to issue worldwide regulations and must work through IMO to
help set international standards. The IMO measures for preventing acts
against passenger vessels and passenger terminals were published to
provide an international security standard. However, they are not
mandatory, and, for that reason, the Coast Guard conducts periodic
security assessments of foreign ports to determine compliance with
them. The Coast Guard has the responsibility to request that the
Department of Transportation ask the Department of State to issue an
advisory warning against travel to a particular port if it determines
that adequate security is not being provided.
Nine comments addressed the release of security plans on requests
under the Freedom of Information Act (FOIA) (5 U.S.C. 552). All of the
comments expressed the feeling that releasing these documents would
seriously jeopardize the overall security of the vessel or terminal.
The Coast Guard fully agrees with this feeling and has submitted a
legislative proposal to specifically exempt these plans from requests
under FOIA.
The State of Alaska asked that its ferries be exempt from this
rule. Its basis
[[Page 37650]]
for this request is that these ferries make up part of the Alaska
Marine Highway System, and are a vital link between Alaska and the
lower 48 States. It advises that people often use the system out of
necessity, not choice, and that voyages transit the high seas for only
very short periods of time between the U.S. and Canada. The intent of
the Coast Guard has never been to apply this rule to this type of
vessel. For that reason, Secs. 120.100 and 128.100 of the rule have
been changed to exempt all ferries and terminals when servicing
ferries.
Five comments stated that the applicability of proposed
Secs. 120.100 and 128.100 was not clear and that confusion exists
whether a covered vessel must be on the high seas for 24 hours during a
voyage or whether the entire voyage must be 24 hours with part of that
voyage being on the high seas. The sections apply to those vessels
making voyages of more than 24 hours, any part of which is on the high
seas; they do not dictate that the vessel needs to be on the high seas
for 24 hours. They have been changed to more clearly define the
applicability of the rule relative to voyages on the high seas.
Nine comments addressed the definition of operator in proposed
Sec. 120.110. Some comments stated that the definition was overly broad
and that they were concerned that it could be construed to include port
authorities and general terminal operators. The salient phrase in the
definition was--and still is--``maintains operational control over a
passenger vessel or passenger terminal.'' Providing pier space does
not, in and of itself, constitute operational control. The contract
negotiated between the terminal and the vessel is a key indicator of
operational control. For a terminal, the definition of operator must be
coupled with the definition of passenger terminal, which emphasizes the
use of the terminal for the assembling, processing, embarking, or
disembarking of passengers or baggage. The Coast Guard considers the
definition of operator, as written, clear and not in need of change.
Eight comments addressed restricted areas described in proposed
Sec. 120.210. The comments urged that too many locations were specified
and that extensive installation of equipment would be necessary to
comply with the rule. The incorporation of MSC Circular 443 eliminated
this concern and allows owners or operators to use the guidance in the
annexes of the Circular to determine which areas they intend to
designate as ``restricted.''
Five comments addressed the responsibilities of the security
officer in proposed Secs. 120.220(b) and 128.220(b), and the
requirement for that officer to do all the items mentioned. The Coast
Guard did not intend for that officer to personally do all items
specified: it is perfectly acceptable to use the services of other
security professionals to accomplish these tasks. However, that officer
should have a working knowledge of security procedures to ensure that
the jobs are properly accomplished. To more clearly express this point,
the rule has been reorganized and these requirements have been moved to
Secs. 120.120 and 128.120.
Six comments addressed proposed Secs. 120.240 and 128.240,
coordination with terminal and vessel security, respectively. The major
concern was that the Coast Guard did not designate specific
responsibilities for the vessel and the terminal. The intent of these
sections was to develop a relationship between the owner or operator of
the vessel and the owner or operator of the terminal by requiring
consultations about security between them. Of course each vessel and
each terminal will have differences in capabilities. Coordination
between the two will take these into consideration. Further, the cost
of security may be reduced as duplication of effort will be avoided.
Cooperation and coordination between the vessel and the terminal should
prove beneficial to each. The Coast Guard has removed the specific
sections imposing the requirement of coordination between the vessel
and the terminal; however, the requirement still exists within
Secs. 120.200(b) and 128.200(b) of the interim rule.
Four comments addressed plans and their distribution in proposed
Secs. 120.300 and 128.300. These comments urged that the plans be
available only to those with the operational need to know. The Coast
Guard agrees, and has amended these sections.
Six comments addressed the survey contents required by proposed
Secs. 120.310 and 128.310. The comments focused on the amount of
information required and the potential size of the document. Annex 1 of
MSC Circular 443, which now contains the guidance for security surveys,
is not as stringent or specific as the guidance anticipated by the
NPRM. These surveys are the most critical part of plan development.
Each owner or operator should make them as thorough as possible.
Seven comments addressed the requirements for identification in
proposed Secs. 120.350 and 128.350. These requirements, too, have been
removed by the incorporation of MSC Circular 443; Annex 2 to the
Circular must now be used for guidance concerning identification.
Sixteen comments addressed the screening of baggage, stores, and
cargo under proposed Secs. 120.360 and 128.360. They dealt primarily
with the amount of time it will take to screen all the baggage, stores,
and cargo. The comments stated that all the screening would cause undue
delays in boardings and departures of vessels. Some suggested that the
process itself was a waste of time. Others supported it, and offered
alternatives to help speed it. These sections, too, have been removed
from this interim rule. This now directs owners and operators to use
the guidance in Annex 2 of MSC Circular 443. The amount of screening to
be done should be determined with reference to the three threat levels
defined by this rule.
Nine comments addressed the lighting requirements in proposed
Sec. 120.410. They concerned primarily the impracticability of the
lighting distance specified. This section has been removed. For
guidance on security lighting, owners and operators must now turn to
Annex 2 of MSC Circular 443.
Twenty comments addressed the requirement for barriers in proposed
Sec. 128.435. Most expressed the concern that fences with barbed wire
were not aesthetically pleasing, were impracticable in some areas, and
would detract from the cruising experience. This section has been
removed. For guidance on barriers, owners and operators must now turn
to Annex 2 of MSC Circular 443. Permanent barriers are no longer
required; however, barriers must still achieve the purpose proclaimed
in the Circular.
Beyond those changes made in response to comments on the NPRM, the
Coast Guard also has made the following changes on its own initiative.
Proposed Secs. 120.200 and 128.200 have been amended to more
clearly define requirements for planning based on threat. In
particular, Secs. 120.200 and 128.200 as published today introduce
planning based on three levels of threat.
Proposed Secs. 120.300 and 128.300 have been amended to require
planning for low, medium, and high threats and to restrict distribution
of the plan to only those persons with the operational need to know.
The latter change will help reduce the risk of the plan's falling into
the hands of a terrorist.
Proposed Secs. 120.305 and 128.305 have been retitled and reworded,
removing the requirement of a letter of adequacy of inserting
procedures by which the Coast Guard will examine plans for compliance
with this rule.
[[Page 37651]]
These changes will reduce the amount of time necessary to review plans
for compliance with this rule and will reduce the amount of paperwork
generated by and for the Coast Guard. Sections 120.300(a) and
128.300(a) require that an ``appropriate'' plan be developed and
maintained. In this context, the examining authority, either the NMC or
the COTP, will be reviewing plans to insure that security measures are
commensurate with each threat level. The examining authorities will
evaluate the circumstances unique to the vessel or terminal, and
determine whether adequate security measures for the three threat
levels are addressed. Factors to be considered will include such things
as security guards, screening of baggage and stores, barriers, and
personnel access control.
Proposed Sec. 120.307 has been amended by removing the requirement
for Commandant's approval of amendments to plans and by inserting
procedures under which the Coast Guard will examine the amendments for
compliance with this rule. Again, time for review and paperwork will be
reduced because of this amendment.
Proposed Sec. 128.307 has been amended by removing the requirement
for COTPs' approval of amendments to plans and by inserting procedures
under which the Coast Guard will examine the amendments to ensure
compliance with this rule. This amendment will speed review of
documents by the Coast Guard and will eliminate paperwork.
Proposed Secs. 120.220 and 128.220 have been redesignated as
Secs. 120.210 and 128.210, respectively.
Proposed Sec. 120.250 has been redesignated as Sec. 120.220.
Proposed Sec. 128.250 has been redesignated as Sec. 128.220.
Proposed Secs. 128.210; 120.240 and 128.240; 120.370 and 128.370;
120.420 and 128.420; 120.430 and 128.430; and 120.440 and 128.440 have
given way to the guidance contained in the annexes to MSC Circular 443.
Sections 120.309 and 128.309 have been added to provide the right
to appeal the action or decision of the NMC or the COTP.
Incorporation by Reference
The following material would be incorporated by reference in
Secs. 120.220, 120.300, 128.220 and 128.300: International Maritime
Organization (IMO), MSC Circular 443, ``Measures to Prevent Unlawful
Acts Against Passengers and Crews on Board Ships'' dated September 26,
1986. Copies of the material are available for inspection where
indicated under ADDRESSES. Copies of the material are available from
the source listed in Secs. 120.120 and 128.120.
The Coast Guard has submitted this material to the Director of the
Federal Register for approval of the incorporation by reference.
Assessment
This proposal is a significant regulatory action under section 3(f)
of Executive Order 12866 and has been reviewed by the Office of
Management and Budget under that Order. It requires an assessment of
potential cost and benefits under section 6(a)(3) of that Order. It is
significant under the regulatory policies and procedures of the
Department of Transportation (44 FR 11040; February 26, 1979). An
Assessment has been prepared and is available in the docket for
inspection or copying where indicated under ADDRESSES. A summary of the
Assessment follows.
The Coast Guard anticipates that approximately 120 passenger
vessels and 53 passenger terminals would be affected. Of the vessels,
approximately 117 are cruise vessels, each carrying in excess of 100
passengers and operating out of U.S. ports. Of the terminals, all serve
these cruise vessels. There may be up to 40 more vessels and 20 more
terminals that would be subject to this rule only on occasion. There
are approximately 4 million passengers a year that would be subject to,
and benefit from, the proposed security measures.
The Coast Guard estimates initial implementing costs at $546,368.
It estimates annual operating costs at $28,000. If the number of
passengers remains constant at approximately 4 million per year, the
additional cost to consumers will be negligible.
The potential exists for the loss of many lives and significant
property damage from a single act of terrorism against a passenger
vessel. The principal benefit gained by this action will be a higher
level of preparedness and the ability to better respond to such an act.
Additionally, these measures will act as a deterrent to terrorist
actions. Although it is difficult to calculate the number of deaths and
injuries, and dollar value of property damage, lawsuits, and lost
business that this action will prevent, the Coast Guard asserts that
the benefits will far outweigh the costs of this rule.
Small Entities
Under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.), the
Coast Guard must consider whether this rule will have a significant
economic impact on a substantial number of small entities. ``Small
entities'' include independently owned and operated businesses that are
not dominant in their field and that otherwise qualify as ``small
business concerns'' under Sec. 3 of the Small Business Act (15 U.S.C.
632).
This rule will have a minimal impact on small entities, but most
passenger vessels making voyages on the high seas of 24 hours or more,
and most terminals associated with them, are neither owned nor operated
by small entities. Security requirements for small vessels and
terminals will be less complex and less expensive to implement than for
large vessels and terminals. Therefore, the Coast Guard certifies under
5 U.S.C. 605(b) that this rule will not have a significant economic
impact on a substantial number of small entities. If, however, you
think that your business qualifies as a small entity and that this rule
will have a significant economic impact on your business, please submit
a comment (see ADDRESSES) explaining why you think your business
qualifies and in what way and to what degree this rule will
economically affect your business.
Paperwork Reduction Act of 1995
This interim rule contains information collections which are
subject to review by the Office of Management and Budget (OMB) under
the Paperwork Reduction Act of 1995 (Pub. L. 104-13). The title,
description, and respondent description of the information collections
are shown below and an estimate of the annual recordkeeping and
periodic reporting burden. Included in the estimate is the time for
reviewing instructions, searching existing data sources, gathering and
maintaining the data needed, and completing and reviewing the
collection of information.
Title: Secretary for Passenger Vessels and Passenger Terminals.
Description: This interim rule implements security standards for
passenger vessels and terminals. It requires a comprehensive security
program that includes requirements for a security plan and the
reporting of unlawful acts or related activities. These requirements
are contained in Secs. 120.220, 120.300, 120.307, 128,220, 128.300, and
128.307.
Need for Information: Protect the public from injury, prevent
damage to property, and avoid economic losses.
Proposed use of Information: Regulatory compliance, program
management, and program evaluation.
Description of Respondents: The owner of any covered vessel or
terminal. These include: businesses or other for profit organizations,
Federal, State and Local governments.
[[Page 37652]]
Frequency of Response: Once for each covered vessel and terminal;
then, on occasion of amendment to plan. Reporting of unlawful acts or
related activities is also required when they occur.
Estimated Annual Burden: 1,649 hours. This figure is the total
annual burden hours for the estimated 120 covered vessels and the 53
covered terminals. It includes the hours necessary for initial plan
development and annual maintenance, and the time necessary to develop
reports of unlawful acts, and is amortized over a 25-year period.
As required be section 3507(d) of the Paperwork Reduction Act of
1995, the Coast Guard has submitted a copy of this interim rule to OMB
for its review of these information collection requirements.
In addition, the Coast Guard solicits public comment on the
information collection requirements in order to: (1) evaluate whether
the proposed collection of information is necessary for the proper
performance of the functions of the agency, including whether the
information will have practical utility; (2) evaluate the accuracy of
the agency's estimate of the burden of the proposed information,
including the validity of the methodology and assumptions used, (3)
enhance the quality, utility, and clarity of the information to be
collected; and (4) minimize the burden of the collection of information
on those who are to respond, including through the use of appropriate
automated, electronic, mechanical, or other technological collection
techniques or other forms of information technology, e.g., permitting
electronic submission of responses.
Individuals and organizations may submit comments on the
information collection requirements by September 16, 1996, and should
direct them to the Executive Secretary, Marine Safety Council (address
above) and to the Office of Information and Regulatory Affairs, OMB,
New Executive Office Bldg., rm 10235, 725 17th St. NW., Washington, DC
20503, Attention: Desk Officer for DOT.
Persons are not required to respond to a collection of information
unless it displays a currently valid OMB Control number. The Coast
Guard will publish a notice in the Federal Register prior to the
effective date of this interim rule of OMB's decisions to approve,
modify or disapprove the information collection requirements.
Federalism
The Coast Guard has analyzed this rule under the principles and
criteria contained in Executive Order 12612 and has determined that
this rule does not have sufficient federalism implications to warrant
the preparation of a Federalism Assessment.
Environment
The Coast Guard considered the environmental impact of this
rulemaking and concluded that, under paragraph 2.B.2.e.(34) of
Commandant Instruction M16475.1B, this rule is categorically excluded
from further environmental documentation. This rulemaking implements
statutory authority of the Coast Guard in maritime safety. A
``Categorical Exclusion Determination'' is available in the docket for
inspection or copying where indicated under addresses.
List of Subjects
33 CFR Part 120
Security, Passenger vessels, Incorporation by reference, Reporting
and recordkeeping requirements.
33 CFR Part 128
Security, Waterfront facilities, Incorporation by reference,
Reporting and recordkeeping requirements.
For the reasons set out in the preamble, the Coast Guard proposes
to amend Chapter I of title 33, Code of Federal Regulations, as
follows:
1. Subchapter K, consisting of part 120, is added to read as
follows:
SUBCHAPTER K--SECURITY OF VESSELS
PART 120--SECURITY OF PASSENGER VESSELS
Subpart A--General
Sec.
120.100 Applicability.
120.110 Definitions.
120.120 Incorporation by reference.
Subpart B--Security Program
120.200 General.
120.210 Vessel security officer.
120.220 Reporting of unlawful acts and related activities.
Subpart C--Plans and Procedures for Vessel Security.
120.300 Plan: General.
120.305 Plan: Procedure for examination.
120.307 Plan: Amendment.
120.309 Right of Appeal.
Authority: 33 U.S.C. 1231; 49 CFR 1.46.
Subpart A--General
Sec. 120.100 Applicability.
This part applies to all passenger vessels over 100 gross tons,
carrying more than 12 passengers for hire; making voyages lasting more
than 24 hours, any part of which is on the high seas; and for which
passengers are embarked or disembarked in the United States or its
territories. It does not apply to ferries that hold Coast Guard
Certificates of Inspection endorsed for ``Lakes, Bays, and Sounds'',
and that transit international waters for only short periods of time,
on frequent schedules.
Sec. 120.110 Definitions.
As used in this part:
Captain of the Port (COTP) means the Coast Guard officer designated
by the Commandant to command a Captain of the Port Zone as described in
Part 3 of this chapter, or an authorized representative.
Commandant means the Commandant of the U.S. Coast Guard, or an
authorized representative.
High seas means all waters that are neither territorial seas nor
internal waters of the United States or of any foreign country as
defined in Part 2, Subpart 2.05, of this chapter.
High threat means that the threat of an unlawful act against a
vessel or terminal is probable or imminent and that intelligence
indicates that terrorists have chosen specific targets.
Low threat means that the threat of an unlawful act against a
vessel or terminal is, though possible, not likely.
Medium threat means that the threat of an unlawful act against a
vessel or terminal is possible and that intelligence indicates that
terrorists are likely to be active within a specific area, or against a
type of vessel or terminal.
Operator means the person, company, or governmental agency, or the
representative of a company or governmental agency, that maintains
operational control over a passenger vessel or passenger terminal.
Passenger terminal means any structure used for the assembling,
processing, embarking, or disembarking of passengers or baggage for
vessels subject to this part. It includes piers, wharves, and similar
structures to which a vessel may be secured; land and water under or in
immediate proximity to these structures; buildings on or contiguous to
these structures; and equipment and materials on or in these
structures.
Unlawful act means an act that is a felony under U.S. federal law,
under the laws of the States where the vessel is located, or under the
laws of the country in which the vessel is registered.
Voyage means the passenger vessel's entire course of travel, from
the first port at which the vessel embarks
[[Page 37653]]
passengers until its return to that port or another port where the
majority of the passengers are disembarked and terminate their voyage.
Sec. 120.120 Incorporation by reference.
(a) Certain material is incorporated by reference into this part
with the approval of the Director of the Federal Register in accordance
with 5 U.S.C. 552(a) and 1 CFR Part 51. To enforce any edition other
than that specified in paragraph (b) of this section, the Coast Guard
must publish notice of change in the Federal Register and must make the
material available to the public. All approved material may be
inspected at the Office of the Federal Register, 800 North Capitol
Street NW., Suite 700, Washington, DC, and at the U.S. Coast Guard, (G-
MES), 2100 Second Street SW., Washington, DC. Copies may be obtained
from IMO, 4 Albert Embankment, London SE1 7SR.
(b) The materials approved for incorporation by reference in this
part and the sections affected are:
International Maritime Organization (IMO)
4 Albert Embankment, London SE1 7SR MSC Circular 443, Measures to
Prevent Unlawful Acts Against Passengers and Crews on Board Ships
September 26, 1986--120.220, 120.300
Subpart B--Security Program
Sec. 120.200 General.
(a) Each operator of a vessel to which this part applies shall for
each such of its vessels implement a program that--
(1) Provides for the safety and security of persons and property
traveling aboard the vessel against unlawful acts;
(2) Prevents or deters the carriage aboard the vessel of any
prohibited weapon, incendiary, or explosive, on or about any person or
within his or her personal articles or baggage, and the carriage of any
prohibited weapon, incendiary, or explosive, in stowed baggage, cargo,
or stores;
(3) Prevents or deters unauthorized access to the vessel and to
restricted areas aboard the vessel;
(4) Provides means to meet the requirements for low, medium, and
high threats, through increased security measures to be implemented on
advice by the Commandant or COTP of an increased threat to the vessel
or persons on the vessel;
(5) Designates, by name, a security officer for the vessel;
(6) Ensures that all members of the crew are adequately trained to
perform their duties relative to security; and
(7) Provides for coordination with terminal security while in port.
(b) Each operator of a vessel to which this part applies shall work
with the operator of each terminal at which the vessel embarks or
disembarks passengers, to provide security for the passengers and the
vessel. The vessel, however, need not duplicate any provisions
fulfilled by the terminal unless directed by the Commandant. When a
provision is fulfilled by the terminal, that fact shall be referenced
in the applicable section of the Vessel Security Plan required by
Sec. 120.300.
Sec. 120.210 Vessel security officer.
(a) Each operator of a vessel to which this part applies shall
designate a security officer for the vessel.
(b) This officer shall ensure that--
(1) An initial comprehensive security survey is conducted and
updated;
(2) The plan required by Sec. 120.300 is implemented and
maintained, and that amendments to correct its deficiencies and satisfy
the security requirements for the vessel are proposed;
(3) Adequate training for members of the crew responsible for
security is provided;
(4) Regular security inspections of the vessel are conducted;
(5) Vigilance, as well as general awareness of security aboard the
vessel, is encouraged;
(6) All occurrences or suspected occurrences of unlawful acts and
related activities are reported in accordance with Sec. 120.220; and
(7) Coordination, for implementation of the plant required by
Sec. 120.300, takes place with the terminal security officer at each
terminal at which the vessel embarks or disembarks passengers.
Sec. 120.220 Reporting of unlawful acts and related activities.
(a) Either the operator of the vessel or the vessel security
officer shall report each breach of security, unlawful act, or threat
of an unlawful act against the vessel or persons aboard it that occurs
in a place subject to the jurisdiction of the United States, both to
the COTP and to the local office of the Federal Bureau of Investigation
(FBI). Also, the operator of each U.S.-flag vessel shall report each
such incident that occurs in a place outside the jurisdiction of the
United States to the hotline of the Response Center of the Department
of Transportation at 1-800-424-0201, or, from within metropolitan
Washington D.C., at (202) 267-3675.
(b) Either the operator of the vessel or the vessel security
officer shall file a written report of the incident, using the form
``Report on an Unlawful Act'', contained in IMO MSC Circular 443, which
the operator or the officer shall forward as soon as possible to
Commandant (G-MRO), U.S. Coast Guard Headquarters, 2100 Second Street
SW., Washington, DC 20593-0001. Notification of an incident may be
initially filed by fax. Original copies should be sent by mail in
conjunction with faxing the report to the Commandant (G-MRO), fax
numbers are (202) 267-4085/4065.
Subpart C--Plans and Procedures for Vessel Security
Sec. 120.300 Plan: General.
(a) Each operator of a vessel subject to this part shall for each
such vessel develop and maintain, in writing, an appropriate Vessel
Security Plan that--
(1) Is unique to the vessel;
(2) Articulates the program required by Sec. 120.200; and
(3) Includes an appendix, for each port in which the vessel embarks
or disembarks passengers, that contains port-specific security
information.
(b) The Plan must be developed and maintained in accordance with
the guidance in IMO MSC Circular 443, and must address security for
periods of low, medium, and high threats, to--
(1) Deter unauthorized access to the vessel and its restricted
areas;
(2) Deter the introduction of prohibited weapons, incendiaries, or
explosives aboard the vessel;
(3) Encourage vigilance, as well as general awareness of security,
aboard the vessel;
(4) Provide adequate training to members of the crew for security
aboard the vessel;
(5) Coordinate responsibilities for security with the operator of
each terminal at which the vessel embarks or disembarks passengers; and
(6) Provide information to members of the crew and to law-
enforcement personnel, in case of an incident affecting security.
(c) The operator shall amend the Plan to address any known
deficiencies.
(d) The operator shall restrict the distribution, disclosure, and
availability of information contained in the plan to those persons with
an operational need to know.
Sec. 120.305 Plan: Procedure for examination.
(a) Each operator of a passenger vessel subject to this part shall
submit two copies of the Vessel Security Plan required by Sec. 120.300
to the Director, National Maritime Center (NMC), 4200 Wilson Blvd.,
Suite 510, Arlington, VA 22203, for examination before October 16,
1996, or at least 60 days before
[[Page 37654]]
embarking passengers on a voyage described in Sec. 120.100, whichever
is later.
(b) If the Director of the NMC finds that the Vessel Security Plan
meets the requirements of Sec. 120.300, the Director shall return a
copy to the owner or operator marked ``Examined by the Coast Guard''.
(c) If the Director of the NMC finds that the Plan does not meet
the requirements of Sec. 120.300, the Director shall return the plan
with an explanation of why it does not meet the requirements.
(d) No vessel subject to this part may embark or disembark
passengers in the United States after November 16, 1996, unless it
holds either a Vessel Security Plan that has been examined by the Coast
Guard or a letter from the Director of the NMC stating that the Plan is
currently under review by the Coast Guard and that normal operations
may continue until the Coast Guard has determined whether the Plan
meets the requirements of Sec. 120.300.
Sec. 120.307 Plan: Amendment.
(a) The operator of a passenger vessel subject to this part may
initiate amendments to the Vessel Security Plan on its own as well as
when directed by the Director of the NMC.
(b) Each proposed amendment to the Plan, initiated by the operator,
including changes to the appendices required by Sec. 120.300(a)(3),
must be submitted to the Director of the NMC for review at least 30
days before the proposed amendment is to take effect, unless a shorter
period is allowed by the Director. The Director will examine the
amendment and respond according to Sec. 120.305.
(c) The Director of the NMC may direct the operator of a vessel
subject to this part to amend its Plan if the Director determines that
implementation of the Plan is not providing effective security. Except
in an emergency, the Director will issue to the operator a written
notice of matters to address and will allow the operator at least 60
days to submit proposed amendments.
(d) If there is an emergency or other circumstance that makes the
procedures in paragraph (c) of this section impracticable, the COTP may
give to the operator of a vessel subject to this part an order to
implement increased security measures immediately. The order will
incorporate a statement of the reasons for it.
Sec. 120.309 Right of appeal.
Any person directly affected by a decision or action taken by the
Director of the NMC under this part, may appeal that action or decision
to the Chief, Marine Safety and Environmental Protection Directorate
(Commandant (G-M)) according to the procedures in 46 CFR 1.03-15.
2. Part 128 is added to subchapter L to read as follows:
PART 128--SECURITY OF PASSENGER TERMINALS
Subpart A--General
Sec.
128.100 Applicability.
128.110 Definitions.
128.120 Incorporation by reference.
Subpart B--Security Program
Sec.
128.200 General.
128.210 Terminal security officer.
128.220 Reporting of unlawful acts and related activities.
Subpart C--Plans and Procedures for Terminal Security
Sec.
128.300 Plan: General.
128.305 Plan: Procedure for examination.
128.307 Plan: Amendment.
128.309 Right to Appeal.
Authority: 33 U.S.C. 1231; 49 CFR 1.46.
Subpart A--General
Sec. 128.100 Applicability.
This part applies to all passenger terminals in the United States
or its territories when being used for the assembling, processing,
embarking, or disembarking of passengers or baggage for passenger
vessels over 100 gross tons, carrying more than 12 passengers for hire;
making a voyage lasting more than 24 hours, any part of which is on the
high seas. It does not apply to terminals when serving ferries that
hold Coast Guard Certificates of Inspection endorsed for ``Lakes, Bays,
and Sounds'', and that transit international waters for only short
periods of time, on frequent schedules.
Sec. 128.110 Definitions.
The definitions in part 120 of this chapter apply to this part.
Sec. 128.120 Incorporation by reference.
(a) Certain material is incorporated by reference into this part
with the approval of the Director of the Federal Register in accordance
with 5 U.S.C. 552(a) and 1 CFR Part 51. To enforce any edition other
than that specified in paragraph (b) of this section, the Coast Guard
must publish notice of change in the Federal Register and must make the
material available to the public. All approved material may be
inspected at the Office of the Federal Register, 800 North Capitol
Street NW., Suite 700, Washington, DC, and at the U.S. Coast Guard, (G-
MES), 2100 Second Street SW., Washington, DC. Copies may be obtain from
IMO, 4 Albert Embankment, London SE1 7 SR.
(b) The materials approved for incorporation by reference in this
part and the sections affected are:
International Maritime Organization (IMO)
4 Albert Embankment, London SE1 7SR
MSC Circular 443, Measures to Prevent Unlawful Acts Against Passengers
and Crews on Board Ships September 26, 1986--128.220, 128.300
Subpart B--Security Program
Sec. 128.200 General.
(a) Each operator of a passenger terminal to which this part
applies shall implement for each such terminal of which it is the
operator a security program that--
(1) Provides for the safety and security of persons and property in
the terminal and aboard each passenger vessel subject to Part 120 of
this chapter moored at the terminal, against unlawful acts;
(2) Prevents or deters the carriage aboard any such vessel moored
at the terminal of any prohibited weapon, incendiary, or explosive on
or about any person or within his or her personal articles or baggage,
and the carriage of any prohibited weapon, incendiary, or explosive in
stowed baggage, or cargo, or stores;
(3) Prevents or deters unauthorized access to any such vessel and
to restricted areas in the terminal;
(4) provides means to meet the requirements for low, medium, and
high threats, through increased security measures to be implemented on
advice by the Commandant or Captain of the Port (COTP) of an increased
threat to the terminal, the vessel, or persons on the terminal or
vessel;
(5) Designates, by name, a security officer for the terminal;
(6) Provides for the evaluation of all security personnel of the
terminal, before hiring, to determine suitability for employment; and
(7) Provides for coordination with vessel security while any
passenger vessel subject to Part 120 of this chapter is moored at the
terminal.
(b) Each operator of a passenger terminal shall work with the
operator of each passenger vessel subject to part 120 of this chapter,
to provide security for the passengers, the terminal, and the vessel.
The terminal, however, need not duplicate any provisions fulfilled by
the vessel. When a provision is fulfilled by
[[Page 37655]]
a vessel, that fact shall be referenced in the applicable section of
the Terminal Security Plan required by Sec. 128.300.
Sec. 128.210 Terminal security officer.
(a) Each operator of a passenger terminal shall designate a
security officer for the terminal.
(b) This officer shall ensure that--
(1) An initial comprehensive security survey is conducted and
updated;
(2) The plan required by Sec. 128.300 is implemented and
maintained, and that amendments to correct its deficiencies and satisfy
the security requirements of the terminal are proposed;
(3) Adequate training for personnel responsible for security is
provided;
(4) Regular inspections of the terminal are conducted;
(5) Vigilance, as well as general awareness of security at the
terminal, is encouraged;
(6) All occurrences or suspected occurrences of unlawful acts and
related activities are reported in accordance with Sec. 128.220 and
that records of the incident are maintained; and
(7) Coordination, for implementation of the plan required by
Sec. 128.300, takes place with the vessel security officer of each
vessel that embarks or disembarks passengers at the terminal.
Sec. 128.220 Reporting of unlawful acts and related activities.
(a) Either the operator of the terminal or the operator's
representative shall report each unlawful act, breach of security, or
threat of an unlawful act against the terminal, a passenger vessel
subject to Part 120 of this chapter destined for or moored at that
terminal, or persons on the terminal or vessel, to the COTP, to the
local office of the Federal Bureau of Investigation (FBI), and to the
local police agency having jurisdiction over the terminal.
(b) Either the operator of the terminal or the operator's
representative shall file a written report of the incident using the
form ``Report on an Unlawful Act'', contained in IMO MSC Circular 443,
as soon as possible to the local COTP.
Subpart C--Plans and Procedures for Terminal Security
Sec. 128.300 Plan: General.
(a) Each operator of a passenger terminal subject to this part
shall develop and maintain, in writing, for each such terminal of which
it is the operator, an appropriate Terminal Security Plan that
articulates the program required by Sec. 128.200.
(b) The Plan must be developed and maintained in accordance with
the guidance in IMO MSC Circular 443 and must address the security of
passengers, of members of crews of passenger vessels subject to Part
120 of this chapter, and of employees of the terminal, by establishing
procedures, for periods of low, medium, and high threats, to--
(1) Deter unauthorized access to the terminal and its restricted
areas and to any passenger vessel moored at the terminal;
(2) Deter the introduction of prohibited weapons, incendiaries, and
explosives into the terminal and its restricted areas and onto any
passenger vessel moored at the terminal;
(3) Encourage vigilance, as well as general awareness of security,
at the terminal;
(4) Provide adequate training to employees of the terminal for
security at the terminal;
(5) Coordinate responsibilities for security with the operator of
each vessel that embarks or disembarks passengers at the terminal; and
(6) Provide information to employees of the terminal and to law-
enforcement personnel, in case of an incident affecting security.
(c) The operator shall amend the Plan to address any known
deficiencies.
(d) The operator shall restrict the distribution, disclosure, and
availability of information contained in the Plan to those persons with
an operational need to know.
Sec. 128.305 Plan: Procedure for examination.
(a) Each operator of a passenger terminal subject to this part
shall submit two copies of the Terminal Security Plan required by
Sec. 128.300 to the COTP for examination before October 16, 1996, or at
least 60 days before transferring passengers to or from a vessel
subject to Part 120 of this chapter, whichever is later.
(b) If the COTP finds that the Plan meets the requirements of
Sec. 128.300, the COTP shall return a copy to the owner or operator
marked ``Examined by the Coast Guard.''
(c) If the COTP finds that the Plan does not meet the requirements
of Sec. 128.300, the COTP shall return the Plan with an explanation of
why it does not meet the requirements.
(d) No terminal subject to this part shall transfer passengers to
or from a passenger vessel subject to Part 120 of this chapter after
November 16, 1996, unless it holds either a Terminal Security Plan that
has been examined by the Coast Guard or a letter from the COTP stating
that the Plan is currently under review by the Coast Guard and that
normal operations may continue until the COTP has determined whether
the Plan meets the requirements of Sec. 128.300.
Sec. 128.307 Plan: Amendment.
(a) The operator of a passenger terminal subject to this part may
initiate amendments to the Terminal Security Plan on its own as well as
when directed by the COTP.
(b) Each proposed amendment to the Plan initiated by the operator
of a passenger terminal, including changes to the enclosures required
by Sec. 128.300(a), must be submitted to the COTP for review at least
30 days before the amendment is to take effect, unless a shorter period
is allowed by the COTP. The COTP will examine the amendment and respond
according to Sec. 120.305.
(c) The COTP may direct the operator of a terminal subject to this
part to amend its Plan if the COTP determines that implementation of
the Plan is not providing effective security. Except in an emergency,
the COTP will issue to the operator a written notice of matters to
address and will allow the operator at least 60 days to submit proposed
amendments.
(d) If there is an emergency or other circumstance that makes the
procedures in paragraph (c) of this section impracticable, the COTP may
give to the operator of a terminal subject to this part an order to
implement increased security measures immediately. The order will
incorporate a statement of the reasons for it.
Sec. 128.309 Right of Appeal.
Any person directly affected by a decision or action taken by the
COTP under this part, may appeal that action or decision to the
cognizant District Commander according to the procedures in 46 CFR
1.03-15; the District Commander's decision on appeal may be further
appealed to the Commandant according to the procedures in 46 CFR 1.03-
25.
Dated: July 10, 1996.
Robert E. Kramek,
Admiral, U.S. Coast Guard Commandant.
[FR Doc. 96-18115 Filed 7-17-96; 8:45 am]
BILLING CODE 4910-14-M
