[Federal Register Volume 68, Number 126 (Tuesday, July 1, 2003)]
[Rules and Regulations]
[Pages 39284-39292]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-16187]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 103

[USCG-2003-14733]
RIN 1625-AA42


Area Maritime Security

AGENCY: Coast Guard, DHS.

ACTION: Temporary interim rule with request for comments and notice of 
meeting.

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SUMMARY: This interim rule establishes U.S. Coast Guard Captains of the 
Ports as Federal Maritime Security Coordinators, and establishes

[[Page 39285]]

requirements for Area Maritime Security Plans and Area Maritime 
Security Committees. This rule is one of six interim rules in today's 
Federal Register that comprise a new subchapter on the requirements for 
maritime security mandated by the Maritime Transportation Security Act 
of 2002. These six interim rules implement national maritime security 
initiatives concerning general provisions, Area Maritime Security 
(ports), vessels, facilities, Outer Continental Shelf facilities, and 
the Automatic Identification System. Where appropriate, they align 
domestic maritime security requirements with those of the International 
Ship and Port Facility Security Code and recent amendments to the 
International Convention for the Safety of Life at Sea. To best 
understand these interim rules, first read the interim rule titled 
``Implementation of National Maritime Security Initiatives'' (USCG-
2003-14792).

DATES: Effective date. This interim rule is effective from July 1, 2003 
until November 25, 2003.
    Comments. Comments and related material must reach the Docket 
Management Facility on or before July 31, 2003. Comments on collection 
of information sent to the Office of Management and Budget (OMB) must 
reach OMB on or before July 31, 2003.
    Meeting. A public meeting will be held on July 23, 2003, from 9 
a.m. to 5 p.m., in Washington, DC.

ADDRESSES: Comments. To ensure that your comments and related material 
are not entered more than once in the docket, please submit them by 
only one of the following means:
    (1) Electronically to the Docket Management System website at 
http://dms.dot.gov.
    (2) By mail to the Docket Management Facility (USCG-2003-14733), 
U.S. Department of Transportation, room PL-401, 400 Seventh Street, 
SW., Washington, DC 20590-0001.
    (3) By fax to the Docket Management Facility at (202) 493-2251.
    (4) By delivery to room PL-401 on the Plaza level of the Nassif 
Building, 400 Seventh Street SW., Washington, DC between 9 a.m. and 5 
p.m., Monday through Friday, except Federal holidays. The telephone 
number is (202) 366-9329.
    You must also mail comments on collection of information 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.
    Meeting. A public meeting will be held on July 23, 2003 in 
Washington, DC at the Grand Hyatt Washington, D.C., 1000 H Street, NW., 
Washington, DC 20001.

FOR FURTHER INFORMATION CONTACT: If you have questions on this rule, 
call Lieutenant Commander Richard Teubner, U.S. Coast Guard by 
telephone (202) 267-1103, toll-free telephone 1-800-842-8740 ext. 7-
1103, or electronic mail [email protected]. If you have questions 
on viewing or submitting material to the docket, call Ms. Dorothy 
Beard, Chief, Dockets, Department of Transportation, at (202) 366-5149.

SUPPLEMENTARY INFORMATION: Due to the short timeframe given to 
implement these National Maritime Transportation Security initiatives, 
as directed by the Maritime Transportation Security Act (MTSA) of 2002 
(MTSA, Public Law 107-295, 116 STAT. 2064), and to ensure all comments 
are in the public venue for these important rulemakings, we are not 
accepting comments containing protected information for these interim 
rules. We request you submit comments, as explained in the Request for 
Comments section below, and discuss your concerns or support in a 
manner that is not security sensitive. We also request that you not 
submit proprietary information as part of your comment.
    The Docket Management Facility maintains the public docket for this 
rulemaking. Comments and material received from the public, as well as 
documents mentioned in this preamble as being available in the docket, 
will be available for inspection or copying at room PL-401 on the Plaza 
level of the Nassif Building, 400 Seventh Street, SW., Washington, DC, 
between 9 a.m. and 5 p.m., Monday through Friday, except Federal 
holidays. You may also find this docket on the Internet at http://dms.dot.gov.
    Electronic forms of all comments received into any of our dockets 
can be searched by the name of the individual submitting the comment 
(or signing the comment, if submitted on behalf of an association, 
business, labor unit, etc.) and is open to the public without 
restriction. You may also review the Department of Transportation's 
complete Privacy Act Statement published in the Federal Register on 
April 11, 2000 (65 FR 19477-78), or you may visit http://dms.dot.gov/.

Request for Comments

    We encourage you to participate in this rulemaking by submitting 
comments and related material. Your comments will be considered for the 
final rule we plan to issue before November 25, 2003, to replace this 
interim rule. If you choose to comment on this rule, please include 
your name and address, identify the specific docket number for this 
interim rule (USCG-2003-14733), indicate the specific heading of this 
document to which each comment applies, and give the reason for each 
comment. If you have comments on another rule, please submit those 
comments in a separate letter to the docket for that rulemaking. You 
may submit your comments and material by mail, hand delivery, fax, or 
electronic means to the Docket Management Facility at the address under 
ADDRESSES. Please submit your comments and material by only one means. 
If you submit them 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 them 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. We may change this rule in 
view of them.

Public Meeting

    We will hold a public meeting on July 23, 2003, in Washington, DC 
at the Grand Hyatt Hotel, at the address listed under ADDRESSES. The 
meeting will be from 9 a.m. to 5 p.m. to discuss all of the maritime 
security interim rules, and the Automatic Identification System (AIS) 
interim rule, found in today's Federal Register. In addition, you may 
submit a request for other public meetings to the Docket Management 
Facility at the address under ADDRESSES explaining why another one 
would be beneficial. If we determine that other meetings would aid this 
rulemaking, we will hold them at a time and place announced by a later 
notice in the Federal Register.

Regulatory Information

    We did not publish a notice of proposed rulemaking for this 
rulemaking and are making this rule effective upon publication. Section 
102(d)(1) of the MTSA of 2002 (Pub. L. 107-295, 116 STAT. 2064) 
requires the publication of an interim rule as soon as practicable 
without regard to the provisions of chapter 5 of title 5, U.S. Code 
(Administrative Procedure Act). The Coast Guard finds that 
harmonization of U.S. regulations with maritime security measures 
adopted by the International Maritime Organization (IMO) in December 
2002, and the need to institute measures for the protection

[[Page 39286]]

of U.S. maritime security as soon as practicable, furnish good cause 
for this interim rule to take effect immediately under both the 
Administrative Procedure Act and section 808 of the Congressional 
Review Act.

Background and Purpose

    A summary of the Coast Guard's regulatory initiatives for maritime 
security can be found under the Background and Purpose section in the 
preamble to the interim rule titled: ``Implementation of National 
Maritime Security Initiatives'' (USCG-2003-14792), published elsewhere 
in this issue of the Federal Register.

Discussion of Comments Addressing Port Issues in the Notice of Meeting 
Docket

    For a discussion of comments on ports at the public meetings and in 
the docket, see the interim rule titled: ``Implementation of National 
Maritime Security Initiatives'' (USCG-2003-14792), published elsewhere 
in today's issue of the Federal Register.

Discussion of Interim Rule

    This interim rule adds part 103--Area Maritime Security to a new 
Subchapter H of Title 33 of the Code of Federal Regulations. This 
interim rule integrates port security-related requirements in the MTSA 
of 2002 and the International Ship and Port Facility Security (ISPS) 
Code. In the MTSA, the port security-related requirements are contained 
in the elements that address Area Maritime Security Plans and Federal 
Maritime Security Coordinators. In the ISPS Code, the port security-
related requirements are contained in elements that address Port 
Facility Security Plans and Port Facility Security Officers. A detailed 
discussion on the MTSA and the ISPS Code and the need for these 
regulations can be found in the interim rule titled: ``Implementation 
of National Maritime Security Initiatives'' (USCG-2003-14792), 
published elsewhere in today's Federal Register.
    Part 103--Port Security is composed of the following five subparts.

Subpart A--General.

    This subpart applies to all vessels and facilities located in, on, 
under, or adjacent to waters subject to the jurisdiction of the U.S. A 
detailed discussion on applicability can be found in the interim rule 
titled: ``Implementation of National Maritime Security Initiatives'' 
(USCG-2003-14792), published elsewhere in today's Federal Register.
    The MTSA and the International Ship and Port Facility Security 
(ISPS) Code use different terms to define similar, if not identical, 
persons or things. These differing terms sometimes match up with the 
terms used in subchapter H, but sometimes they do not. For a table of 
the terms used in subchapter H and their related terms in the MTSA and 
the ISPS Code, see the Discussion of Interim Rule section in the 
preamble for the interim rule titled ``Implementation of National 
Maritime Security Initiatives'' (USCG-2003-14792), published elsewhere 
in today's Federal Register.
    To provide flexibility and a systems approach to security measures 
for certain areas, we will allow several Area Maritime Security Plans 
to be combined, if appropriate. This strategy is currently being used 
to combine the inland river systems into one Area Maritime Security 
Plan; a similar system-wide concept is being developed for the Great 
Lakes. In addition, Outer Continental Shelf (OCS) facilities in the 
Gulf of Mexico will be covered by a single, district-wide plan 
implemented by the Eighth Coast Guard District. This process includes 
using each Area Maritime Security Assessment to form building blocks 
that will be used to create a system-wide security plan methodology 
that identifies vulnerabilities and consequences to be mitigated using 
regional strategies and resources. The resulting Area Maritime Security 
Plan will be a single document that provides consistent security 
measures throughout multiple Captain of the Port (COTP) zones.

Subpart B--Federal Maritime Security Coordinator (FMSC) Designation and 
Authorities.

    This subpart designates the Coast Guard COTP as the Federal 
Maritime Security Coordinator. This designation, along with a 
description of the COTP's authority as Federal Maritime Security 
Coordinator to establish, convene, and direct the Area Maritime 
Security (AMS) Committee, fulfills the MTSA requirement to designate a 
Coast Guard official as the Federal Maritime Security Coordinator.

Subpart C--Area Maritime Security (AMS) Committee.

    This subpart describes the composition and responsibilities of the 
AMS Committee. The AMS Committee brings appropriately experienced 
representatives from a variety of sources in the port together to 
continually assess security risks to the port and determine appropriate 
risk mitigation strategies, develop, revise, and implement the AMS 
Plan. The AMS Committee may also be the mechanism by which security 
threats and changes in Maritime Security (MARSEC) Levels are 
communicated to port stakeholders. AMS Committee membership 
requirements and terms of office align with the criteria established in 
the MTSA for ``Area Maritime Security Advisory Committees.'' Port 
Security Committees, such as those operating under the guidelines of 
U.S. Coast Guard Navigation and Vessel Inspection Circular (NVIC) 9-02, 
that were established prior to the publication of this rule, are 
considered AMS Committees, provided they conform to the procedures set 
forth in these rules. The AMS Committee members may include, but are 
not limited to, the following stakeholders: U.S. Coast Guard, Federal, 
State, and local law enforcement, emergency response and public safety 
organizations, recreational vessel associations, environmental response 
organizations, labor organizations, port managers, and vessel and 
facility owner/operator security representatives. There must at least 
seven members in the AMS Committee however; there could be as many as 
200 or more representatives.

Subpart D--Area Maritime Security (AMS) Assessment.

    This subpart directs the AMS Committee to ensure development of a 
risk-based AMS Assessment. The AMS Assessment is the important first 
step in developing an AMS Plan. This subpart lists the essential 
elements of an AMS Assessment, and these provisions are consistent with 
the elements of a ``port facility security assessment'' set forth in 
the ISPS Code. The AMS Assessment may be conducted by the AMS Committee 
members themselves or by persons acting on behalf of the AMS Committee. 
This subpart also establishes the skills and knowledge that persons 
conducting an AMS Assessment must possess. This subpart further 
identifies the process of evaluations that must be performed in the 
course of conducting the AMS Assessment: identification of activities 
or operations critical to the port area; a threat assessment; a 
consequence and vulnerability assessment; a categorization of each 
target/scenario combination; and measures that will be implemented at 
all MARSEC Levels. This process is consistent with the Port Security 
Assessment model identified in NVIC 9-02.
    The following is a list of activities, operations, and 
infrastructure that may require assessment in the development of the 
AMS Plan: Highway bridges, railroad bridges, stadiums, tourist 
attractions, significant symbolic structures, commercial attractions,

[[Page 39287]]

marinas, fishing vessels, recreational boats, airports, nuclear 
facilities, power plants, oil and gas pipelines, anchorages, mid-stream 
operations (e.g., bunkering), under-and-over water cables, 
communication networks, utilities providing service to key 
transportation assets, barge-fleeting areas, oil and gas production 
platforms, tunnels, non-regulated vessels, non-regulated facilities, 
Outer Continental Shelf (OCS) facilities, lock and dams, public water 
supplies (e.g., aqueducts), boat ramps, docks, un-inspected commercial 
vessels, passenger terminals, grain and aggregate facilities, ship 
yards, rail yards, tank farms, dikes, levees, sewer and water utility 
facilities, major marine or special events, waterways. Additional 
consideration should be given to the criticality of port operations as 
they relate to vessels and facilities that are directly regulated in 
parts 104 through 106 of Subchapter H.
    The Coast Guard has also funded and contracted Port Security 
Assessments (PSA) in certain port areas throughout the U.S. The Coast 
Guard-sponsored PSA team, when completing the PSA, should review the 
AMS Assessment and AMS Plan for content and consistency. As part of the 
PSA, recommendations will be made to the COTP on strategies to improve 
their AMS Plan in the port area that was covered by the PSA. These 
recommendations will be part of the AMS Plan review process to ensure 
the AMS Committee becomes aware of the PSA results and revises the AMS 
Plan appropriately.

Subpart E--Area Maritime Security (AMS) Plan

    The AMS Plan is primarily a communication and coordination 
document. This subpart establishes the core elements of the AMS Plan 
and its relationship to other plans. Core elements include: Details of 
operational and physical measures that must be in place at all MARSEC 
Levels; expected timeframes for responding to security threats and 
changes of MARSEC Levels; communications procedures; measures to ensure 
the security of vessels, facilities, and operations that are not 
covered by the security requirements in other parts of this subchapter; 
measures to ensure the security of the information in the AMS Plan; 
periodic review, audit, and updating procedures; and procedures for 
reporting security incidents. These requirements are consistent with 
the elements of a ``port facility security plan'' established in the 
ISPS Code.
    This subpart also describes the review and approval process for the 
AMS Plan. The COTP will submit an AMS Plan to the cognizant District 
Commander for review, with the Area Commander, or his/her designee, 
having the authority to approve or disapprove the plan. Approving 
officers may require additional assessment, mitigation strategies, or 
other measures by parties subject to Coast Guard jurisdiction as a 
condition of approving AMS Plans. This review chain has been 
established to promote plan coordination and consistency within and 
among Coast Guard Districts and Areas. AMS Plans will form the basis 
for the National Maritime Transportation Security Plan, established in 
the MTSA, and will be consistent with the National Transportation 
Security Plan. This subpart establishes exercise requirements under the 
AMS Plan. Exercises are an important way to improve system performance 
and ensure the AMS Plan remains current.
    Although the exercise requirements established in this interim rule 
may be satisfied by a tabletop exercise, as our experience with AMS 
Plans matures, it may be desirable to require periodic field training 
exercises for the future. Therefore, public comment is requested on a 
requirement to conduct a maritime security field training exercise in 
each area covered by an AMS Plan at least once every 3 years. A 
maritime security field training exercise would require the deployment 
of personnel and equipment in accordance with the AMS Plan for the 
transportation security incident used for the exercise scenario. The 
purpose of the field training exercise would include: Evaluating the 
adequacy of the AMS Plan, exercising coordination and interoperability 
between responding security forces and exercising coordination and 
interoperability amongst command personnel of responding agencies 
(i.e., Unified Command) as well as their ability to effectively command 
and control the response to the transportation security incident. The 
maritime security field training exercise may be combined with other 
exercises (e.g., National Preparedness for Response Program (PREP) area 
exercises) provided a significant security/terrorist attack aspect is 
included in the scenario.
    Finally, this subpart prescribes AMS Assessment and AMS Plan 
records to be maintained by the COTP for 5 years, and exercise records 
for 2 years.

Regulatory Assessment

    This rule is a ``significant regulatory action'' under section 3(f) 
of Executive Order 12866, Regulatory Planning and Review, and has been 
reviewed by the Office of Management and Budget under that Order. It 
requires an assessment of potential costs and benefits under section 
6(a)(3) of that Order. It is significant under the regulatory policies 
and procedures of the Department of Homeland Security. An Assessment is 
available in the docket as indicated under ADDRESSES. A summary of the 
Assessment follows:

Cost Assessment

    This rule will affect stakeholders in 47 maritime areas containing 
361 ports. The regulatory assessment and analysis documentation (see 
docket) details estimated costs to public and private stakeholders and 
does not include costs to the Coast Guard.
    The total cost estimate of the rule, as it pertains to AMS, is 
present value (PV) $477 million (2003-2012, 7 percent discount rate). 
The initial cost of the startup period (June 2003-December 2003) for 
establishing AMS Committees and creating AMS Plans is estimated to be 
$120 million (non-discounted) for all areas. Following the startup 
period, the first year of implementation (2004), consisting of monthly 
AMS Committee meetings and AMS Plan exercises and drills for all areas, 
is estimated to be $106 million (non-discounted). After the first year 
of implementation, the annual cost of quarterly AMS Committee meetings 
and AMS Plan exercises and drills for all areas is estimated to be $46 
million (non-discounted). The startup period cost associated with 
creating AMS Committees and AMS Plans for each area is the primary cost 
driver of the rule. Both the startup and implementation year period 
(2003-2004) combined is nearly half of the total 10-year PV cost 
estimate, making initial development, planning, and testing the primary 
costs of Area Maritime Security.
    This rule will require all COTPs to establish security committees, 
plans, training drills, and exercises for their areas, with the 
participation of port stakeholders in their areas. The above costs to 
stakeholders will be paperwork, travel, and communication costs 
associated with participation in AMS Plan implementation.
    We estimate 1,203,200 hours of paperwork and other associated 
planning activities during 2003, the initial period of security 
meetings and development. In 2004, the first year of implementation, we 
estimate the value will fall slightly to 1,090,400 hours of paperwork 
and other related information and communication activities related to 
monthly AMS Committee meetings. In subsequent years, we estimate the 
hours will fall to 488,800 hours--annually associated

[[Page 39288]]

with AMS Committee meetings, AMS Plan revisions, and information 
exercises and drills.

Benefit Assessment

    This interim rule is one of six interim rules that implement 
national maritime security initiatives concerning general provisions, 
Area Maritime Security (ports), vessels, facilities, Outer Continental 
Shelf (OCS) facilities, and the Automatic Identification System (AIS). 
The Coast Guard used the National Risk Assessment Tool (N-RAT) to 
assess benefits that would result from increased security for vessels, 
facilities, Outer Continental Shelf (OCS) facilities, and ports. The N-
RAT considers threat, vulnerability, and consequences for several 
maritime entities in various security-related scenarios. For a more 
detailed discussion on the N-RAT and how we employed this tool, refer 
to ``Applicability of National Maritime Security Initiatives'' in the 
interim rule titled ``Implementation of National Maritime Security 
Initiatives'' (USCG-2003-14792) published elsewhere in today's Federal 
Register. For this benefit assessment, the Coast Guard used a team of 
experts to calculate a risk score for each entity and scenario before 
and after the implementation of required security measures. The 
difference in before and after scores indicates the benefit of the 
proposed action.
    We recognized that the interim rules are a ``family'' of rules that 
will reinforce and support one another in their implementation. We must 
ensure, however, that risk reduction that is credited in one rulemaking 
is not also credited in another. For a more detailed discussion on the 
benefit assessment and how we addressed the potential to double-count 
the risk reduced, refer to Benefit Assessment in the interim rule 
titled ``Implementation of National Maritime Security Initiatives'' 
(USCG-2003-14792) published elsewhere in today's Federal Register.
    We determined annual risk points reduced for each of the six 
interim rules using the N-RAT. The benefits are apportioned among the 
Vessel, Facility, OCS Facility, AMS, and AIS requirements. As shown in 
Table 1, the implementation of AMS Plans for the affected population 
reduces 135,202 risk points annually through 2012. The benefits 
attributable for part 101--General Provisions--were not considered 
separately since it is an overarching section for all the parts.

                           Table 1.--Annual Risk Points Reduced by the Interim Rules.
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                                                     Annual risk points reduced by rulemaking
                                 -------------------------------------------------------------------------------
         Maritime entity              Vessel         Facility      OCS facility
                                  security plans  security plans  security plans     AMS plans          AIS
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Vessels.........................         778,633           3,385           3,385           3,385           1,448
Facilities......................           2,025         469,686  ..............           2,025  ..............
OCS Facilities..................              41  ..............           9,903  ..............  ..............
Port Areas......................             587             587  ..............         129,792             105
=================================
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    Once we determined the annual risk points reduced, we discounted 
these estimates to their PV (7 percent discount rate, 2003-2012) so 
that they could be compared to the costs. We presented the cost 
effectiveness, or dollars per risk point reduced, in two ways: First, 
we compared the first-year cost and first-year benefit because the 
first-year cost is the highest in our assessment as companies develop 
security plans and purchase equipment. Second, we compared the 10-year 
PV cost to the 10-year PV benefit. The results of our assessment are 
presented in Table 2.

                    Table 2.--First-Year and 10-Year PV Cost and Benefit of the Interim rules
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                                                                           Interim rule
                                                ----------------------------------------------------------------
                                                                               OCS
                      Item                          Vessel      Facility     facility
                                                   security     security     security    AMS plans      AIS *
                                                    plans        plans        plans
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First-Year Cost (millions).....................         $218       $1,125           $3         $120          $41
First-Year Benefit.............................      781,285      473,659       13,288      135,202        1,553
First-Year Cost Effectiveness ($/Risk Point             $279       $2,375         $205         $890      $26,391
 Reduced)......................................
10-Year PV Cost (millions).....................       $1,368       $5,399          $37         $477          $42
10-Year PV Benefit.............................    5,871,540    3,559,655       99,863    1,016,074       11,671
10-Year PV Cost Effectiveness ($/Risk Point             $233       $1,517         $368         $469      $3,624
 Reduced)......................................
----------------------------------------------------------------------------------------------------------------
* Cost less monetized safety benefit.

Small Entities

    Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have 
considered whether this rule would have a significant economic impact 
on a substantial number of small entities. The term ``small entities'' 
comprises small businesses, not-for-profit organizations that are 
independently owned and operated and are not dominant in their fields, 
and governmental jurisdictions with populations of less than 50,000.
    The stakeholders affected by this rule include a variety of 
businesses and governments. The COTP will designate approximately 200 
stakeholders, per maritime area, to engage in security planning, 
meetings, and drills. Full participation by these stakeholders will be 
voluntary. We estimate the first-year cost, per stakeholder, to be 
$12,800 (non-discounted). In subsequent years, the annual cost, per 
stakeholder (full participation in this rule), falls to $4,940 (non-
discounted).
    The results from our assessment (copy available in the docket) 
suggest that the impact of this rule is not significant for port and 
maritime area authorities,

[[Page 39289]]

owners, or operators because of the low average annual cost per 
stakeholder and the voluntary nature of participating in this rule.
    We estimated the majority of small entities have a less than 3 
percent impact on revenue if they choose to fully participate in this 
rule. We anticipate the few remaining small entities that may have a 
greater than 3 percent impact on annual revenue will either opt out 
(not participate) or partially participate in the rule to the extent 
that the impact on revenue is not a burden.
    There are other stakeholders affected by this rule in addition to 
port authorities, owners, and operators. The stakeholders could be any 
entity that the COTP invites to partially or fully participate. We 
anticipate the impact on other possible small entity stakeholders to be 
minimal because of the low average annual cost per stakeholder and the 
voluntary nature of participating in this rule.
    Therefore, the Coast Guard certifies, under 5 U.S.C. 605(b), that 
this rule will not have a significant economic impact on a substantial 
number of small entities. If you think that your business, 
organization, or governmental jurisdiction qualifies as a small entity 
and that this rule will have a significant economic impact on it, 
please submit a comment to the Docket Management Facility at the 
address under ADDRESSES. In your comment, explain why you think it 
qualifies and how and to what degree this rule would economically 
affect it.

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 rule so that they can better evaluate 
its effects on them and participate in the rulemaking. If the rule 
would affect your small business, organization, or governmental 
jurisdiction, and you have questions concerning its provisions or 
options for compliance, please consult LCDR Richard Teubner, USCG-MPS-2 
by telephone, 202-267-1103, toll-free telephone, 1-800-842-8740 ext. 7-
1103, or electronic mail, [email protected].
    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).

Collection of Information

    This rule calls 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. It modifies an existing OMB-approved collection--1625-0077 
[formerly 2115-0622]. A summary of the revised collection follows.
    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: The Coast Guard requires 
security plans and communication procedures for U.S. ports and maritime 
areas. This rule provides a framework to ensure adequate security 
planning, exercises, drilling, and communication procedures by inviting 
port and maritime area stakeholders (at the discretion of the COTP) to 
participate in security planning events including, but not limited to, 
meetings and information drills as detailed in part 103.
    Need for Information: The primary need for information would be to 
determine if stakeholders are in compliance with security standards.
    Proposed Use of Information: This information can help to determine 
appropriate security measures for the affected population. This 
information also can help determine, in the case of a transportation 
security incident, whether failure to meet these regulations 
contributed to the transportation security incident.
    Description of the Respondents: This rule will affect approximately 
200 stakeholders in 47 maritime areas containing 361 ports. The 
respondents are public and private stakeholders in the affected port 
areas (at the discretion of the COTP).
    Number of Respondents: 9,400 (200 stakeholders in 47 maritime 
areas).
    Frequency of Response: Varies. Initial AMS Plan planning occurs 
throughout the first year on an undefined schedule. AMS Committee 
meetings may occur monthly in the first two years of this rule with 
quarterly AMS Committee meetings in subsequent years. Frequency of AMS 
Committee meetings is established in the AMS Committee Charter. After 
the first year, AMS Plan exercises occur once each calendar year with 
no more than 18 months between exercises.
    Burden of Response: The burden of response is approximately 128 
hours for the first year per stakeholder. The second year burden of 
response is 116 hours per stakeholder. In the subsequent years, the 
annual burden of response is approximately 52 hours per stakeholder.
    Estimate of Total Annual Burden: During the initial year the burden 
will be 1,203,200 hours. Subsequently, the average annual reporting 
burden is 488,800 hours for all stakeholders in all 47 COTP zones. For 
a summary of all revisions to this existing OMB-approved collection, 
refer to Collection of Information in the interim rule titled 
``Implementation of National Maritime Security Initiatives'' (USCG-
2003-14792) published elsewhere in today's Federal Register.
    As required by the Paperwork Reduction Act of 1995 (44 U.S.C. 
3507(d)), we have submitted a copy of this rule to OMB for its review 
of the collection of information. Due to the circumstances surrounding 
this temporary rule, we asked for ``emergency processing'' of our 
request. We received OMB approval for the collection of information on 
June 16, 2003. It is valid until December 31, 2003.
    We ask for public comment on the collection of information to help 
us determine how useful the information is; whether it can help us 
perform our functions better; whether it is readily available 
elsewhere; how accurate our estimate of the burden of collection is; 
how valid our methods for determining burden are; how we can improve 
the quality, usefulness, and clarity of the information; and how we can 
minimize the burden of collection.
    If you submit comments on the collection of information, submit 
them both to OMB and to the Docket Management Facility where indicated 
under ADDRESSES, by the date under DATES.
    You need not respond to a collection of information, unless it 
displays a currently valid control number from OMB. We received OMB 
approval for the collection of information on June 16, 2003. It is 
valid until December 31, 2003.

Federalism

    A rule has implications for federalism under Executive Order 13132, 
Federalism, if it has a substantial direct effect on State or local 
governments and would either preempt State law or impose a substantial 
direct cost of compliance on them. See the Federalism section in the 
preamble to the interim

[[Page 39290]]

rule titled: ``Implementation of National Maritime Security 
Initiatives'' (USCG-2003-14792) published elsewhere in today's Federal 
Register, for a discussion of our analysis under this Executive Order.

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 or more in any 
one year. This rule is exempted from assessing the effect of the 
regulatory action as required by the Act because it is necessary for 
the national security of the U.S. (2 U.S.C. 1503(5)).

Taking of Private Property

    This interim rule will not effect taking of private property or, 
otherwise, have taking implications under Executive Order 12630, 
Governmental Actions and Interference with Constitutionally Protected 
Property Rights.

Civil Justice Reform

    This interim 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.

Protection of Children

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

Indian Tribal Governments

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

Energy Effects

    We have analyzed this interim rule under Executive Order 13211, 
Actions Concerning Regulations That Significantly Affect Energy Supply, 
Distribution, or Use. We have determined that it is not a ``significant 
energy action'' under that order. Although it is a ``significant 
regulatory action'' under Executive Order 12866, it is not likely to 
have a significant adverse effect on the supply, distribution, or use 
of energy. The Administrator of the Office of Information and 
Regulatory Affairs has not designated it as a significant energy 
action. Therefore, it does not require a Statement of Energy Effects 
under Executive Order 13211.
    This interim rule has a positive effect on the supply, 
distribution, and use of energy. The interim rule provides for security 
assessments, plans, procedures, and standards, which will prove 
beneficial for the supply, distribution, and use of energy at increased 
levels of maritime security.

Trade Impact Assessment

    The Trade Agreement Act of 1979 (19 U.S.C. 2501-2582) prohibits 
Federal agencies from engaging in any standards or related activities 
that create unnecessary obstacles to the foreign commerce of the U.S. 
Legitimate domestic objectives, such as safety and security, are not 
considered unnecessary obstacles. The Act also requires consideration 
of international standards and, where appropriate, that they be the 
basis for U.S. standards. We have assessed the potential effect of this 
interim rule and have determined that it would likely create obstacles 
to the foreign commerce of the U.S. However, because these regulations 
are being put in place in order to further a legitimate domestic 
objective, namely to increase the security of the U.S., any obstacles 
created by the regulation are not considered unnecessary obstacles.

Environment

    We have considered the environmental impact of this rule and 
concluded that, under figure 2-1, paragraph (34)(a) and (34)(c) of 
Commandant Instruction M16475.lD, this rule is categorically excluded 
from further environmental documentation. This interim rule concerns 
security assessments and the establishment of security committees and 
coordinators that will contribute to a higher level of marine safety 
and security for U.S. ports. A ``Categorical Exclusion Determination'' 
is available in the docket where indicated under ADDRESSES or 
SUPPLEMENTARY INFORMATION.
    This rulemaking will not significantly impact the coastal zone. 
Further, the rulemaking and the execution of this rule will be done in 
conjunction with appropriate State coastal authorities. The Coast Guard 
will, therefore, comply with the requirements of the Coastal Zone 
Management Act while furthering its intent to protect the coastal zone.

List of Subjects in 33 CFR Part 103

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

0
For the reasons discussed in the preamble, the Coast Guard is adding 
part 103 to subchapter H of chapter I of title 33 in the CFR to read as 
follows:

SUBCHAPTER H--MARITIME SECURITY

PART 103--AREA MARITIME SECURITY

Subpart A--General
Sec.
103.100 Applicability.
103.105 Definitions.
Subpart B--Federal Maritime Security Coordinator (FMSC) Designation and 
Authorities
103.200 Designation of the Federal Maritime Security Coordinator 
(FMSC).
103.205 Authority of the COTP as the Federal Maritime Security 
Coordinator (FMSC).
Subpart C--Area Maritime Security (AMS) Committee
103.300 Area Maritime Security (AMS) Committee.
103.305 Composition of an Area Maritime Security (AMS) Committee.
103.310 Responsibilities of the Area Maritime Security (AMS) 
Committee.
Subpart D--Area Maritime Security (AMS) Assessment
103.400 General.
103.405 Elements of the Area Maritime Security (AMS) Assessment.
103.410 Persons involved in the Area Maritime Security (AMS).
Subpart E--Area Maritime Security (AMS) Plan
103.500 General.
103.505 Elements of the Area Maritime Security (AMS) Plan.
103.510 Area Maritime Security (AMS) Plan review and approval.
103.515 Exercises.
103.520 Recordkeeping.

    Authority: 33 U.S.C. 1226, 1231; 46 U.S.C. 70102, 70103, 70104, 
70112; 50 U.S.C. 191; 33 CFR 1.05-1, 6.04-11, 6.14, 6.16, and 6.19; 
Department of Homeland Security Delegation No. 0170.

Subpart A--General


Sec.  103.100  Applicability.

    This part applies to all vessels and facilities located in, on, 
under, or adjacent to waters subject to the jurisdiction of the U.S.

[[Page 39291]]

Sec.  103.105  Definitions.

    Except as specifically stated in this subpart, the definitions in 
part 101 of this subchapter apply to this part.

Subpart B--Federal Maritime Security Coordinator (FMSC) Designation 
and Authorities


Sec.  103.200  Designation of the Federal Maritime Security Coordinator 
(FMSC).

    The COTPs are the Federal Maritime Security Coordinators for their 
respective COTP zones described in 33 CFR part 3, including all ports 
and areas located therein.


Sec.  103.205  Authority of the COTP as the Federal Maritime Security 
Coordinator (FMSC).

    (a) Without limitation to the authority vested in the COTP by 
statute or regulation, and in addition to authority prescribed 
elsewhere in this part, the COTP as the FMSC is authorized to:
    (1) Establish, convene, and direct the Area Maritime Security (AMS) 
Committee;
    (2) Appoint members to the AMS Committee;
    (3) Develop and maintain, in coordination with the AMS Committee, 
the AMS Plan;
    (4) Implement and exercise the AMS Plan; and
    (5) Maintain the records required by Sec.  103.520 of this part.
    (b) The authorizations in paragraph (a) of this section do not 
limit any other existing authority of the COTP.

Subpart C--Area Maritime Security (AMS) Committee


Sec.  103.300  Area Maritime Security (AMS) Committee.

    (a) The AMS Committee is established under the direction of the 
COTP and shall assist in the development, review, and update of the AMS 
Plan for their area of responsibility. For the purposes of this 
subchapter, Port Security Committees that were established prior to 
July 1, 2003, according to guidance issued by the Coast Guard, may be 
considered AMS Committees, provided they conform to the procedures 
established by this part and satisfy the membership requirements of 
Sec.  103.305 of this part.
    (b) The AMS Committee will operate under terms specified in a 
written charter. At a minimum, the charter must address:
    (1) The AMS Committee's purpose and geographic area of 
responsibility;
    (2) Rules for membership;
    (3) The AMS Committee's organizational structure and procedural 
rules of order;
    (4) Frequency of meetings, to include not less than once in a 
calendar year or when requested by a majority of the AMS Committee 
members;
    (5) Guidelines for public access to AMS Committee meetings and 
records; and
    (6) Rules for handling and protecting classified, sensitive 
security, commercially sensitive, and proprietary information.


Sec.  103.305  Composition of an Area Maritime Security (AMS) 
Committee.

    (a) An AMS Committee must be composed of not less than seven 
members, each having at least 5 years of experience related to maritime 
or port security operations, and who may be selected from:
    (1) The Federal, Territorial, or Tribal government;
    (2) The State government and political subdivisions thereof;
    (3) Local public safety, crisis management and emergency response 
agencies;
    (4) Law enforcement and security organizations;
    (5) Maritime industry;
    (6) Other port stakeholders having a special competence in maritime 
security; and
    (7) Port stakeholders affected by security practices and policies.
    (b) Members appointed under this section serve for a term of not 
more than 5 years. In appointing members, the COTP should consider the 
skills required by Sec.  103.410 of this part. Prior to the appointment 
of an individual to a position on the AMS Committee, the COTP may 
require an appropriate security background examination of the candidate 
member.


Sec.  103.310  Responsibilities of the Area Maritime Security (AMS) 
Committee.

    (a) The AMS Committee shall:
    (1) Identify critical port infrastructure and operations;
    (2) Identify risks (threats, vulnerabilities, and consequences);
    (3) Determine mitigation strategies and implementation methods;
    (4) Develop and describe the process to continually evaluate 
overall port security by considering consequences and vulnerabilities, 
how they may change over time, and what additional mitigation 
strategies can be applied; and
    (5) Provide advice to, and assist the COTP in, developing the AMS 
Plan.
    (b) The AMS Committee shall also serve as a link for communicating 
threats and changes in MARSEC Levels, and disseminating appropriate 
security information to port stakeholders.

Subpart D--Area Maritime Security (AMS) Assessment


Sec.  103.400  General.

    (a) The Area Maritime Security (AMS) Committee will ensure that a 
risk based AMS Assessment, is completed and meets the requirements 
specified in Sec.  103.310 of this part and Sec.  101.510 of this 
subchapter, incorporating the elements specified in Sec.  103.405 of 
this part.
    (b) AMS Assessments can be completed by the COTP, the AMS 
Committee, a Coast Guard Port Security Assessment team, or by another 
third party approved by the AMS Committee.
    (c) Upon completion of each AMS Assessment, a written report, which 
is designated sensitive security information, must be prepared 
consisting of:
    (1) A summary of how the AMS Assessment was conducted;
    (2) A description of each vulnerability and consequences found 
during the AMS Assessment; and
    (3) A description of risk reduction strategies that could be used 
to ensure continued operation at an acceptable risk level.


Sec.  103.405  Elements of the Area Maritime Security (AMS) Assessment.

    (a) The AMS Assessment must include the following elements:
    (1) Identification of the critical Marine Transportation System 
infrastructure and operations in the port;
    (2) Threat assessment that identifies and evaluates each potential 
threat on the basis of various factors, including capability and 
intention;
    (3) Consequence and vulnerability assessment for each target/
scenario combination; and
    (4) A determination of the required security measures for the three 
MARSEC Levels.
    (b) In order to meet the elements listed in paragraph (a) of this 
section, an AMS Assessment should consider each of the following:
    (1) Physical security of infrastructure and operations at the port;
    (2) Structures considered critical for the continued operation of 
the port;
    (3) Existing security systems and equipment available to protect 
maritime personnel;
    (4) Procedural policies;
    (5) Radio and telecommunication systems, including computer systems 
and networks;
    (6) Relevant transportation infrastructure;
    (7) Utilities;
    (8) Security resources and capabilities; and

[[Page 39292]]

    (9) Other areas that may, if damaged, pose a risk to people, 
infrastructure, or operations within the port.
    (c) AMS Assessments are sensitive security information and must be 
protected in accordance with 49 CFR part 1520.


Sec.  103.410  Persons involved in the Area Maritime Security (AMS) 
Assessment.

    The persons carrying out the AMS Assessment must have the 
appropriate skills to evaluate the security of the port in accordance 
with this part. This includes being able to draw upon expert assistance 
in relation to:
    (a) Knowledge of current security threats and patterns;
    (b) Recognition and detection of dangerous substances, and devices;
    (c) Recognition, on a non-discriminatory basis, of characteristics 
and behavioral patterns of persons who are likely to threaten security;
    (d) Techniques used to circumvent security measures;
    (e) Methods used to cause a transportation security incident;
    (f) Effects of dangerous substances and devices on structures and 
port services;
    (g) Port security requirements;
    (h) Port business practices;
    (i) Contingency planning, emergency preparedness, and response;
    (j) Physical security measures;
    (k) Radio and telecommunications systems, including computer 
systems and networks;
    (l) Transportation and civil engineering;
    (m) Vessel and port operations; and
    (n) Knowledge of the impact, including cost impacts of implementing 
security measures on port operations.

Subpart E--Area Maritime Security (AMS) Plan


Sec.  103.500  General.

    (a) The Area Maritime Security (AMS) Plan is developed by the COTP, 
in consultation with the AMS Committee, and is based on an AMS 
Assessment that meets the provisions of subpart D of this part. The AMS 
Plan must be consistent with the National Maritime Transportation 
Security Plan and the National Transportation Security Plan.
    (b) AMS Plans are sensitive security information and must be 
protected in accordance with 49 CFR part 1520.


Sec.  103.505  Elements of the Area Maritime Security (AMS) Plan.

    The AMS Plan should address the following elements, as applicable:
    (a) Details of both operational and physical measures that are in 
place in the port at MARSEC Level 1;
    (b) Details of the additional security measures that enable the 
port to progress, without delay, to MARSEC Level 2 and, when necessary, 
to MARSEC Level 3;
    (c) Details of the security incident command-and-response 
structure;
    (d) Details for regular audit of the AMS Plan, and for its 
amendment in response to experience or changing circumstances;
    (e) Measures to prevent the introduction of dangerous substances 
and devices into designated restricted areas within the port;
    (f) Measures to prevent unauthorized access to designated 
restricted areas within the port;
    (g) Procedures and expected timeframes for responding to security 
threats or breaches of security, including provisions for maintaining 
infrastructure and operations in the port;
    (h) Procedures for responding to any security instructions the 
Coast Guard announces at MARSEC Level 3;
    (i) Procedures for evacuation within the port in case of security 
threats or breaches of security;
    (j) Procedures for periodic plan review, exercise, and updating;
    (k) Procedures for reporting transportation security incidents 
(TSI);
    (l) Identification of, and methods to communicate with, Facility 
Security Officers (FSO), Company Security Officers (CSO), Vessel 
Security Officers (VSO), public safety officers, emergency response 
personnel, and crisis management organization representatives within 
the port, including 24-hour contact details;
    (m) Measures to ensure the security of the information contained in 
the AMS Plan;
    (n) Security measures designed to ensure effective security of 
infrastructure, special events, vessels, passengers, cargo, and cargo 
handling equipment at facilities within the port not otherwise covered 
by a Vessel or Facility Security Plan, approved under part 104, 105, or 
106 of this subchapter;
    (o) Procedures to be taken when a vessel is at a higher security 
level than the facility or port it is visiting;
    (p) Procedures for responding if a vessel security alert system on 
board a vessel within or near the port has been activated;
    (q) Procedures for communicating appropriate security and threat 
information to the public;
    (r) Procedures for handling reports from the public and maritime 
industry regarding suspicious activity;
    (s) Security resources available for incident response and their 
capabilities;
    (t) Procedures for responding to a TSI; and
    (u) Procedures to facilitate the recovery of the Marine 
Transportation System after a TSI.


Sec.  103.510  Area Maritime Security (AMS) Plan review and approval.

    Each AMS Plan will be submitted to the cognizant District Commander 
for review and then forwarded to the Area Commander for approval.


Sec.  103.515  Exercises.

    (a) The COTP shall coordinate with the Area Maritime Security (AMS) 
Committee to conduct an exercise at least once each calendar year, with 
no more than 18 months between exercises, to test the effectiveness of 
the AMS Plan.
    (b) An exercise may consist of any of the following:
    (1) A tabletop exercise to validate the AMS Plan. No equipment or 
personnel deployment is required;
    (2) A field training exercise consisting of personnel deployment 
and use of security equipment; or
    (3) A combination of Sec.  103.515(b)(1) and (b)(2).
    (c) Upon concurrence of the cognizant District Commander, an actual 
increase in MARSEC Level, or implementation of enhanced security 
measures during periods of critical port operations or special marine 
events may satisfy the exercise requirements of this section.


Sec.  103.520  Recordkeeping.

    (a) All records pertaining to the Area Maritime Security (AMS) 
Assessment and AMS Plan will be retained by the COTP for 5 years.
    (b) Exercise documentation will be kept by the COTP for 2 years.

    Dated: June 23, 2003.
Thomas H. Collins,
Admiral, Coast Guard Commandant.
[FR Doc. 03-16187 Filed 6-27-03; 8:45 am]
BILLING CODE 4910-15-P