[Federal Register Volume 68, Number 204 (Wednesday, October 22, 2003)]
[Rules and Regulations]
[Pages 60472-60483]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-26346]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 103

[USCG-2003-14733]
RIN 1625-AA42


Area Maritime Security

AGENCY: Coast Guard, DHS.

ACTION: Final rule.

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SUMMARY: This final rule adopts, with changes, the temporary interim 
rule published on July 1, 2003, that establishes U.S. Coast Guard 
Captains of the Ports as Federal Maritime Security Coordinators, and 
establishes requirements for Area Maritime Security Plans and Area 
Maritime Security Committees. This rule is one in a series of final 
rules on maritime security published in today's Federal Register. To 
best understand this final rule, first read the final rule titled 
``Implementation of National Maritime Security Initiatives'' (USCG-
2003-14792), published elsewhere in today's Federal Register.

DATES: This final rule is effective November 21, 2003. On July 1, 2003, 
the Director of the Federal Register approved the incorporation by 
reference of certain publications listed in this final rule.

ADDRESSES: Comments and material received from the public, as well as 
documents mentioned in this preamble as being available in the docket, 
are part of docket USCG-2003-14733 and are available for inspection or 
copying at the Docket Management Facility, U.S. Department of 
Transportation, room PL-401, 400 Seventh Street SW., Washington, DC, 
between 9 a.m. and 5 p.m., Monday through Friday, except Federal 
holidays. You may also find this

[[Page 60473]]

docket on the Internet at http://dms.dot.gov.

FOR FURTHER INFORMATION CONTACT: If you have questions on this final 
rule, call Lieutenant Commander Richard Teubner (G-MPS-2), U.S. Coast 
Guard by telephone 202-267-4129 or by electronic mail 
[email protected]. If you have questions on viewing the docket, 
call Andrea M. Jenkins, Program Manager, Docket Operations, Department 
of Transportation, at telephone 202-366-0271.

SUPPLEMENTARY INFORMATION:

Regulatory Information

    On July 1, 2003, we published a temporary interim rule with request 
for comments and notice of public meeting titled ``Area Maritime 
Security'' in the Federal Register (68 FR 39284). This temporary 
interim rule was one of a series of temporary interim rules on maritime 
security published in the July 1, 2003, issue of the Federal Register. 
On July 16, 2003, we published a document correcting typographical 
errors and omissions in that rule (68 FR 41914).
    We received a total of 438 letters in response to the six temporary 
interim rules by July 31, 2003. The majority of these letters contained 
multiple comments, some of which applied to the docket to which the 
letter was submitted, and some of which applied to a different docket. 
For example, we received several letters in the docket for the 
temporary interim rule titled ``Implementation of National Maritime 
Security Initiatives'' that contained comments in that temporary 
interim rule, plus comments on the ``Vessel Security'' temporary 
interim rule. We have addressed individual comments in the preamble to 
the appropriate final rule. Additionally, we had several commenters 
submit the same letter to all six dockets. We counted these duplicate 
submissions as only one letter, and we addressed each comment within 
that letter in the preamble for the appropriate final rule. Because of 
statutorily imposed time constraints for publishing these regulations, 
we were unable to consider comments received after the period for 
receipt of comments closed on July 31, 2003.
    A public meeting was held in Washington, DC, on July 23, 2003, and 
approximately 500 people attended. Comments from the public meeting are 
also included in the ``Discussion of Comments and Changes'' section of 
this preamble.
    In order to focus on the changes made to the regulatory text since 
the temporary interim rule was published, we have adopted the temporary 
interim rule and set out, in this final rule, only the changes made to 
the temporary interim rule. To view a copy of the complete regulatory 
text with the changes shown in this final rule, see http://www.uscg.mil/hq/g-m/mp/index.htm.

Background and Purpose

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

Discussion of Comments and Changes

    Comments from each of the temporary interim rules and from the 
public meeting held on July 23, 2003, have been grouped by topic and 
addressed within the preambles to the applicable final rules. If a 
comment applied to more than one of the six rules, we discussed it in 
the preamble to each of the final rules that it concerned. For example, 
discussions of comments that requested clarification or changes to the 
Declaration of Security procedures are duplicated in the preambles to 
parts 104, 105, and 106. Several comments were submitted to a docket 
that included topics not addressed in that particular rule, but were 
addressed in one or more of the other rules. This was especially true 
for several comments submitted to the docket of part 101 (USCG-2003-
14792). In such cases, we discussed the comments only in the preamble 
to each of the final rules that concerned the topic addressed.

Subpart A--General

    This subpart concerns applicability and applies the requirements 
for Area Maritime Security to all vessels and facilities located in, 
on, under, or adjacent to waters subject to the jurisdiction of the 
U.S.
    One commenter asked who would be ensuring the integrity of security 
training and exercise programs.
    Since the events of September 11, 2001, the Coast Guard has 
developed a directorate responsible for port, vessel, and facility 
security. This directorate oversees implementation and enforcement of 
the regulations found in parts 101 through 106. Additionally, owners 
and operators of vessels and facilities will be responsible for 
recordkeeping regarding training, drills, and exercises, and the Coast 
Guard will review these records during periodic inspections.
    Two commenters were concerned about the breadth of the regulations. 
One commenter asked that the regulations be broadened to allow for 
exemptions. One commenter stated that the applicability as described in 
Sec.  101.110 is ``much too general,'' stating that it can be 
interpreted as including a canoe tied up next to a floating dock in 
front of a private home. The commenter concluded that such a broad 
definition would generate ``a large amount of confusion and 
discontent'' among recreational boaters and waterfront homeowners.
    Our applicability for the security regulations in 33 CFR chapter I, 
subchapter H, is for all vessels and facilities; however, parts 104, 
105, and 106 directly regulate those vessels and facilities we have 
determined may be involved in transportation security incidents, which 
does not include canoes and private residences. For example, Sec.  
104.105(a) applies to commercial vessels; therefore, a recreational 
boater is not regulated under part 104. If a waterfront homeowner does 
not meet any of the specifications in Sec.  105.105(a), the waterfront 
homeowner is not regulated under part 105. It should be noted that all 
waterfront areas and boaters are covered by parts 101 through 103 and, 
although there are no specific security measures for them in these 
parts, the AMS Plan may set forth measures that will be implemented at 
the various Maritime Security (MARSEC) Levels that may apply to them. 
Security zones and other measures to control vessel movement are some 
examples of AMS Plan actions that may affect a homeowner or a 
recreational boater. Additionally, the COTP may impose measures, when 
necessary, to prevent injury or damage or to address a specific 
security concern.
    Six commenters stated that the term ``fleeting facility'' in Sec.  
105.105(a)(4) is more general than the definition of a ``barge fleeting 
facility'' in Sec.  101.105. The commenters pointed out that temporary 
staging areas of barges, or those areas for the breaking and making of 
tows provided by the U.S. Army Corps of Engineers, are not included in 
the definition of ``barge fleeting facility'' because they are not 
``commercial fleeting areas.'' The commenters suggested that these 
areas be included in AMS Plans.
    We agree with the commenters and are amending Sec.  105.105(a)(4) 
to make it consistent with the definition stated in Sec.  101.105 for 
``barge fleeting facility.'' With regards to barge fleeting areas that

[[Page 60474]]

are provided by the U.S. Army Corps of Engineers, in accordance with 
Sec.  105.105(b), those facilities that are not subject to part 105 
will be covered by parts 101 through 103 of this subchapter and will be 
included in AMS Plans.
    We received comments from the Environmental Protection Agency 
regarding the effects of our regulations on EPA-regulated oil 
facilities. These comments focused primarily on the potential 
overlapping provisions of 33 CFR part 105 and 40 CFR part 112. Overlap 
exists in four major areas: Notification of security incidents, fencing 
and monitoring, evacuation procedures, and security assessments. In 
cases of overlapping provisions for oil facilities regulated both in 
parts 105 and 112, the requirements in our final rules and EPA 
rulemakings do not supplant one another. Additionally, an EPA-regulated 
facility need not amend the facility's Spill Prevention Control and 
Countermeasure Plan or Facility Response Plan, as we first stated in 
the temporary interim rule (68 FR 39251) (part 101). We will be working 
further with EPA in the implementation of these final rules to minimize 
the burden to the facilities while ensuring that these facilities are 
secure. It is our belief that response plans for EPA-regulated oil 
facilities will serve as an excellent foundation for security plans 
that may be required under our regulations.
    EPA asked for clarification for facilities adjacent to the 
navigable waters that handle or store cargo that is hazardous or a 
pollutant but may not be marine transportation related facilities. 
These facilities are covered by parts 101 through 103 of subchapter H 
and, although there are no specific security measures for them in these 
parts, the AMS Plan may set forth measures that will be implemented at 
the various MARSEC Levels that may apply to them. The AMS Assessment 
may reveal that these EPA-regulated facilities may be involved in a 
transportation security incident and the COTP may direct these 
facilities, through orders issued under existing COTP authority, to 
implement security measures based on the facilities' operations and the 
MARSEC Level. We encourage owners and operators of these EPA-regulated 
facilities, as well as representatives from EPA, to participate in AMS 
Committee activities.
    EPA asked for further clarification on drills and exercises 
requirements. As we stated in the temporary interim rule, non-security 
drills and exercises may be combined with security drills to minimize 
burden. Additionally, EPA-regulated facilities that conduct drills not 
related to security are encouraged to communicate with the local COTP 
and coordinate their drills at the area level. It is our intention to 
give facilities and vessels in the port area as much notice as 
practicable prior to an AMS Plan exercise to reduce the burden to those 
entities. Again, we encourage owners and operators of these EPA-
regulated facilities, and EPA, to participate in AMS Committee 
activities to maximize coordination and minimize burden.
    EPA asked us to clarify the role of Area Contingency Plans with the 
requirements of our final rules. Our rules are intended to work in 
concert with Area Contingency Plans and do not preempt their 
requirements. We envision that many members of the Area Committees who 
are responsible for implementing Area Contingency Plans will also 
become members of the AMS Committee. This participation will help 
ensure that implementing an AMS Plan will not conflict with an Area 
Contingency Plan.
    Finally, EPA asked for clarification on requirements for marine 
transportation related facilities that handle petroleum oil, non-
petroleum oil, and edible oil. These facilities are directly regulated 
under Sec.  105.105(a)(1) and must meet the requirements of part 105.

Subpart B--Federal Maritime Security Coordinator (FMSC)

    This subpart designates the Coast Guard COTP as the Federal 
Maritime Security Coordinator and provides a description of the COTP's 
authority as Federal Maritime Security Coordinator to establish, 
convene, and direct the AMS Committee.
    Three commenters recommended developing an International Maritime 
Organization (IMO) list of port facilities to help foreign shipowners 
identify U.S. facilities not in compliance with subchapter H. In a 
related comment, there was a request for the Coast Guard to maintain 
and publish a list of non-compliant facilities and ports because a COTP 
may impose one or more control and compliance measures on a domestic or 
foreign vessel that has called on a facility or port that is not in 
compliance.
    We do not intend to publish a list of each individual facility that 
complies or does not comply with part 105. As discussed in the 
temporary interim rule (68 FR 39262) (part 101), our regulations align 
with the requirements of the International Ship and Port Facility 
Security (ISPS) Code, part A, section 16.5, by using the AMS Plan to 
satisfy our international obligations to communicate to IMO, as 
required by the International Convention for Safety of Life at Sea, 
1974 (SOLAS) Chapter XI-2, regulation 13.3, the locations within the 
U.S. that are covered by an approved port facility security plan. Any 
U.S. facility that receives vessels subject to SOLAS is required to 
comply with part 105.

Subpart C--Area Maritime Security (AMS) Committee

    This subpart describes the composition and responsibilities of the 
AMS Committee.
    One commenter supported the creation of AMS Committees, stating 
that through the partnership between industry and the Coast Guard, the 
committees will develop a comprehensive plan for the security of the 
port.
    Two commenters supported the creation of AMS Committees if they 
were composed of appropriately experienced representatives from a 
variety of sources in the port. One commenter stated that the AMS 
Committee allows for ``port specific'' appropriate risk mitigation as 
opposed to a blanket risk mitigation policy placed on the entire U.S. 
waterway system and will strengthen the AMS Plan with the ``buy in'' of 
the maritime community.
    We agree with the commenters and believe that the AMS Committee is 
a vital link to ensuring the port community is involved in security and 
its implementation. The inclusive nature of the AMS Committee and the 
active involvement of a variety of port stakeholders, bringing their 
experience within the maritime community to the table, will enhance the 
success of the AMS Committee in drafting the AMS Plan.
    One commenter stated that the AMS Committee should have the 
responsibility to identify Federal, State, Indian Tribal, and local 
government agencies and law enforcement entities with jurisdiction over 
port-related matters.
    We believe the responsibilities of Federal, State, Indian Tribal, 
and local government agencies and law enforcement entities with 
jurisdiction over port security related matters should be addressed in 
the AMS Plan and, therefore, have amended Sec.  103.505.
    Six commenters requested that the Coast Guard establish, without 
delay, an AMS Committee for the Outer Continental Shelf (OCS) portion 
of the Gulf of Mexico as an essential step in moving the various 
Federal law enforcement agencies and industry toward a mutual 
understanding of the response to a transportation security incident on 
the Outer Continental Shelf.
    We intend to cover OCS facilities in the Gulf of Mexico by a 
single, District-

[[Page 60475]]

wide plan. The establishment of an AMS Committee for the OCS facilities 
in the Gulf of Mexico was discussed at recent Gulf Safety Committee and 
National Offshore Safety Advisory Committee (NOSAC) meetings. We intend 
to form an AMS Committee for this area in the near future. 
Additionally, owners and operators of OCS facilities are encouraged to 
participate on the AMS Committee of the COTP zone that is most relevant 
to their operations.
    We received nine comments dealing with the protection of 
information shared with the AMS Committee. One commenter recommended 
that threat and risk assessments be kept at the government level so 
that this type of information would not be available to the public. 
Five commenters suggested that security plans or proprietary 
information regarding facilities or vessels be classified as 
confidential and not be shared with the AMS Committee. Four commenters 
requested that uniform guidance be provided to the AMS Committee on the 
handling of sensitive security information.
    Section 103.300 provides that each AMS Committee will operate under 
a written charter that, among other items, details the rules for 
handling and protecting classified, sensitive security, commercially 
sensitive, and proprietary information. Threat and risk assessments 
developed by the AMS Committee will be embodied in written reports that 
will be designated sensitive security information and hence will not be 
available to the public.
    Three commenters stated that the regulations do not indicate that 
the AMS Committee will function in a manner consistent with the 
procedures of Navigation and Vessel Inspection Circular (NVIC) 09-02, 
Guidelines for Port Security Committees, and Port Security Plans 
Required for U.S. Ports. Two commenters stated that the regulations did 
not specify the identity of the ``chartering entity'' for the AMS 
Committee.
    Section 101.105 states that the port security committee established 
under NVIC 09-02 may be the AMS Committee. The requirements for AMS 
Committees described in part 103 are consistent with NVIC 09-02. 
Therefore, AMS Committees will function in a manner consistent with the 
procedures of NVIC 09-02, unless the Committee agrees in its charter to 
a different arrangement. The AMS Committee is chartered under the 
direction of the COTP.
    We received nine comments on AMS Committee participation. Three 
commenters urged the Coast Guard to include the recreational boating 
community in all decisions that could limit recreational boaters' 
access to the water, stating that the future health of the community 
depends on reasonable access to the nation's waterways. Two commenters 
requested that private industry facility operators be allowed to fully 
participate in the AMS Committee. One commenter requested that utility 
representatives be allowed to fully participate in the AMS Committee. 
One commenter requested that government agencies that have roles in 
maritime and cargo security be involved in the AMS Committee. One 
commenter requested that representatives from the charterboat industry 
be included as AMS Committee members.
    We encourage members of all affected communities, including small 
businesses, utilities, government officials, charterboats, and 
recreational boating, to become involved in maritime security through 
their local AMS Committees. Where appropriate, AMS Committees should 
include representatives from associations that represent all of these 
communities. Additionally, to ensure consistency across modes of 
transportation and with other Federal security programs, the Coast 
Guard intends to invite officials nominated by other Federal agencies, 
including the Transportation Security Administration (TSA), the Bureau 
of Customs and Border Protection and the Maritime Administration to 
participate in, and to appoint them as members of, the AMS Committees.
    Eight commenters suggested that the criteria for AMS Committee 
membership or participation in a leadership position be revised. 
Currently, Sec.  103.305(a) requires ``at least 5 years of experience 
related to maritime or port security operations.'' Four commenters 
suggested that membership not be limited only to security-related 
experience. One commenter recommended that the seven AMS Committee 
members ``must be selected from'' the seven areas listed in Sec.  
103.305.
    We aligned Sec.  103.305 with the requirements for the AMS 
Committee found in the Maritime Transportation Security Act of 2002 
(MTSA), which specifically requires a minimum of 7 members with at 
least 5 years of practical experience in maritime security operations 
and provides that the members ``may be selected'' from the seven areas 
listed. We have, however, amended Sec.  103.305 in order to clarify 
that, while 7 members of the AMS Committee must have at least 5 years 
of experience related to maritime or port security operations, the AMS 
Committee may be composed of more than 7 members. We are also adding 
labor to the list of areas from which AMS Committee members should be 
selected. These changes increase participation in the AMS Committee, 
which we believe will be beneficial to the operation of the AMS 
Committee.
    One commenter recommended that AMS Committees consider information 
access ``up the chain of command'' for ``strong and viable seaport 
security.''
    The COTP is the Federal Maritime Security Coordinator, and will be 
involved with the AMS Committee. The COTP is responsible for 
disseminating information to the port stakeholders and ``up the chain 
of command.'' Additionally, owners or operators of vessels and 
facilities subject to parts 104, 105, and 106 are required to report 
all suspicious activities and breaches of security to the National 
Response Center (NRC); other owners and operators are encouraged to do 
so. Finally, non-compliance with security plans and the reporting 
requirements in them must be reported to the Coast Guard.
    One commenter asked how, in accordance with Sec.  104.240(d), the 
COTP will communicate permission to a vessel to enter the port if the 
vessel cannot implement its Vessel Security Plan.
    The COTP can use a number of means to communicate to a vessel 
permission or denial to enter the port, such as issuing a COTP order 
denying entry or establishing conditions upon which the vessel may 
enter the port. Presently, communications to a vessel occur before port 
entry regarding required construction, safety, and equipment 
regulations. These communications occur through agents by satellite 
phone, fax, email, cellular phone, or radio communications.
    One commenter stated that, because vessel and facility owners or 
operators may be required under Federal law to obtain the services of 
security guards and armed guards, there should be minimum standards 
guiding the qualifications, certification, and performance of those 
guards. The commenter also suggested that the AMS Committee evaluate 
local armed security service providers and develop a list of qualified 
providers.
    As we stated in the temporary interim rule (68 FR 39255) (part 
101), we intend to work with State homeland security representatives to 
encourage the review of all standards related to armed personnel. While 
we have not required each AMS Committee to develop lists of qualified 
security personnel providers, each AMS Committee may undertake this 
task.

[[Page 60476]]

Subpart D--Area Maritime Security (AMS) Assessment

    This subpart directs the AMS Committee to ensure development of a 
risk-based AMS Assessment.
    We received four comments regarding the use of third party 
companies to conduct security assessments. Two commenters asked if we 
will provide a list of acceptable assessment companies because of the 
concern that the vulnerability assessment could ``fall into the wrong 
hands.'' One commenter requested that the regulations define 
``appropriate skills'' that a third party must have in order to aid in 
the development of security assessments. One commenter stated that the 
person or company conducting the assessment might not be reliable.
    We will not be providing a list of acceptable assessment companies, 
nor will we define ``appropriate skills.'' It is the responsibility of 
the vessel or facility owner or operator to vet companies that assist 
them in their security assessments. In the temporary interim rule (68 
FR 39254), we stated, ``we reference ISPS Code, part B, paragraph 4.5, 
as a list of competencies all owners and operators should use to guide 
their decision on hiring a company to assist with meeting the 
regulations. We may provide further guidance on competencies for 
maritime security organizations, as necessary, but do not intend to 
list organizations, provide standards within the regulations, or 
certify organizations.'' We require security assessments to be 
protected from unauthorized disclosures and will enforce this 
requirement, including using the penalties provision under Sec.  
101.415.
    One commenter stated that any third party participating in 
developing the AMS Assessment should sign non-disclosure or secrecy 
agreements regarding any classified, sensitive security, commercially 
sensitive, or proprietary information developed, collected, or 
otherwise accessed during the preparation of the AMS Assessment.
    If the AMS Committee or the Coast Guard chooses to use third 
parties in developing the AMS Assessment or the AMS Plan, those third 
parties must possess the same level of clearance as the material they 
are helping to develop, collect, or otherwise access. As required by 
Sec.  103.300(b)(6), the charter under which the AMS Committee operates 
will establish rules for handling and protecting classified and 
sensitive security information. We intend to address third parties 
signing non-disclosure or secrecy agreements to protect classified or 
sensitive security information in future guidance.
    One commenter supported the development of a risk-based AMS 
Assessment but requested the addition of assessment requirements to 
specifically include: (1) Consideration of requiring Facility Security 
Plans and Vessel Security Plans for vessels that carry fewer than 150 
passengers or facilities that serve these smaller operators, and (2) 
consideration of the public transit sector. The commenter stated that 
adding requirements to assess smaller operations would address a gap 
created because the current regulations exempt vessels and facilities 
that handle 150 passengers or fewer. Furthermore, the commenter stated 
that a critical look at the public transit sector (e.g., ferry vessels) 
was needed because implementing certain security measures could 
severely hurt this industry and could cause a security inequity with 
other public transportation modes. The commenter further suggested that 
the public transit sector should be allowed to come forward with 
security recommendations to satisfy the AMS Plan.
    We agree that both the consideration of small vessel and facility 
operations as well as public transit must be included in the AMS 
Assessment. Section 103.405 was developed to cover these topics but did 
not go into detail. We believe the details of the AMS Assessment are 
best embodied in guidance. We intend to provide additional guidance in 
a revision to NVIC 9-02 (Guidelines for Port Security Committees, and 
Port Security Plans Required for U.S. Ports). We intend to update this 
guidance to incorporate several suggestions and address the 
consideration of security measures for vessels and facilities that are 
not directly regulated under parts 104 or 105 but, due to the specific 
nature of their port location or operation, may require additional 
security measures or requirements. Public transit issues and parity 
with other transportation modes is also a concern. The AMS Assessment 
is required to address transportation infrastructure, which includes 
all ferry operations, as well as train or other modes affecting the 
area maritime community.
    One commenter stated that the AMS Assessment should include 
consideration of manufacturers and users of hazardous material.
    Section 103.405 lists the elements that must be taken into 
consideration in developing the AMS Assessment. These elements are 
broadly defined and could include manufacturers and users of hazardous 
materials if they may be involved in a transportation security 
incident.
    Four commenters requested that the Company and the Facility 
Security Officers be given access to the ``vulnerability assessment'' 
done by the COTP to facilitate the development of the Facility Security 
Plan and ensure that the Facility Security Plan does not conflict with 
the AMS Plan.
    The AMS Assessments directed by the Coast Guard are broader in 
scope than the required Facility Security Assessments. The AMS 
Assessment is used in the development of the AMS Plan, and it is a 
collaborative effort between Federal, State, Indian Tribal, and local 
agencies as well as vessel and facility owners and other interested 
stakeholders. The AMS Assessments are sensitive security information. 
Access to these assessments, therefore, is limited under 49 CFR part 
1520 to those persons with a legitimate need-to-know (e.g., Facility 
Security Officers who need to align Facility Security Plans with the 
AMS Plan may be deemed to have need to know sensitive security 
information). In addition, potential conflicts between security plans 
and the AMS Plan will be identified during the Facility Security Plan 
approval process.

Subpart E--Area Maritime Security (AMS) Plan

    This subpart concerns the elements of the AMS Plan, requirements on 
exercising the AMS Plan, and recordkeeping requirements.
    One commenter supported the creation of an AMS Plan and believes it 
provides details of operational and physical measures that must be in 
place at all MARSEC Levels rather than blanket security rules that do 
not appropriately apply to the public transit sector (e.g., ferry 
vessels).
    We believe the AMS Plan is an excellent tool to coordinate and 
communicate security measures throughout the port community. The AMS 
Plan takes into account unique port operations and their criticality to 
the community and tailors security measures to effectively continue 
essential port operations as MARSEC Levels increase.
    One commenter asked that we ensure the interoperability of the 
various plans required in parts 101 through 106, stating that we must 
have a coordinated approach to the implementation of national maritime 
security requirements.
    We agree with the commenter and intend to take the interoperability 
of security plans into account as we review and approve security plans 
for vessels

[[Page 60477]]

and facilities and as we develop the National and AMS Plans.
    One commenter stated that there should be a common template for AMS 
Plans for use at all Districts.
    The regulations provide uniformity by requiring all AMS Plans to be 
submitted for review to the Coast Guard District Commander and for 
approval to the Coast Guard Area Commander.
    Six commenters stated that part 105 should not apply to marinas 
that receive a small number of passenger vessels certificated to carry 
more than 150 passengers or to ``mixed-use or special-use facilities 
which might accept or provide dock space to a single vessel'' because 
the impact on local business in the facility could be substantial. Two 
commenters stated that private and public riverbanks should not be 
required to comply with part 105 because ``there is no one to complete 
a Declaration of Security with, and no way to secure the area, before 
the vessel arrives.'' Two commenters stated that facilities that are 
``100 percent public access'' should not be required to comply with 
part 105 because these types of facilities are ``vitally important to 
the local economy, as well as to the host municipalities.'' This 
commenter also stated that vessels certificated to carry more than 150 
passengers frequently embark guests at private, residential docks and 
small private marinas for special events such as weddings and 
anniversaries and may visit such a dock only once.
    We agree that the applicability of part 105 to facilities that have 
minimal infrastructure but are capable of receiving passenger vessels 
is unclear. Therefore, in the final rule for part 101, we added a 
definition for a ``public access facility'' to mean a facility approved 
by the cognizant COTP with public access that is primarily used for 
purposes such as recreation or entertainment and not for receiving 
vessels subject to part 104. By definition, a public access facility 
has minimal infrastructure for servicing vessels subject to part 104 
but may receive ferries and passenger vessels other than cruise ships, 
ferries certificated to carry vehicles, or passenger vessels subject to 
SOLAS. Minimal infrastructure would include, for example, bollards, 
docks, and ticket booths but would not include, for example, permanent 
structures that contain passenger waiting areas or concessions. We have 
not allowed public access facilities to be designated if they receive 
vessels such as cargo vessels because such cargo-handling operations 
require additional security measures that public access facilities 
would not have. We amended part 105 to exclude these public access 
facilities, subject to COTP approval, from the requirements of part 
105. We believe this construct does not reduce security because the 
facility owner or operator or entity with operational control over 
these types of public access facilities still has obligations for 
security that will be detailed in the AMS Plan, based on the AMS 
Assessment. Additionally, the Vessel Security Plan must address 
security measures for using the public access facility. This exemption 
does not affect existing COTP authority to require the implementation 
of additional security measures to deal with specific security 
concerns. We have also amended Sec.  103.505, to add public access 
facilities to the list of elements that must be addressed within the 
AMS Plan.
    Two commenters asked if the COTP would allow private port 
facilities access to the completed AMS Assessment or Plan, stating that 
a port plan could potentially contradict a private Facility Security 
Plan. One commenter stated that the AMS Plan should be ``absolutely 
unequivocal about the lines of authority for preventative and response 
actions as well as law enforcement.''
    The development of the AMS Plan is a collaborative effort between 
Federal, State, Indian Tribal, and local agencies as well as individual 
facility owners and any other interested stakeholders. AMS Plans 
contain sensitive security information, and the COTP must ensure it is 
protected in accordance with 49 CFR part 1520. The Coast Guard will 
resolve potential conflicts between an individual Facility Security 
Plan and the AMS Plan during the Facility Security Plan approval 
process, which will ensure proper planning for preventative and 
response actions. To clarify that the entire AMS Plan is not 
necessarily sensitive security information, we are amending Sec.  
103.500(b) to allow only those portions of the AMS Plan that contain 
sensitive security information to be marked as such. This will allow 
certain non-sensitive security information portions of the AMS Plan to 
be widely distributed to maximize its communication and coordination 
with port stakeholders.
    Ten commenters addressed the disclosure of security plan 
information. One commenter advocated making security plans public. One 
commenter was concerned that plans will be disclosed under the Freedom 
of Information Act (FOIA). One commenter requested that mariners and 
other employees, whose normal working conditions are altered by a 
Vessel or Facility Security Plan, be granted access to sensitive 
security information contained in that plan on a need-to-know basis. 
One commenter stated that Company Security Officers and Facility 
Security Officers should have reasonable access to AMS Plan information 
on a need-to-know basis. One commenter stated that the Federal 
government must preempt State law in instances of sensitive security 
information because some State laws require full disclosure of public 
documents. Three commenters supported our conclusion that the MTSA and 
our regulations preempt any conflicting State requirements. Another 
commenter was particularly pleased to observe the strong position taken 
by the Coast Guard in support of Federal preemption of conflicting 
State and local security regimes. One commenter supported our decision 
to designate security assessments and plans as sensitive security 
information.
    Portions of security plans are sensitive security information and 
must be protected in accordance with 49 CFR part 1520. Only those 
persons specified in 49 CFR part 1520 will be given access to security 
plans. In accordance with 49 CFR part 1520 and pursuant to 5 U.S.C. 
552(b)(3), sensitive security information is generally exempt from 
disclosure under FOIA, and TSA has concluded that State disclosure laws 
that conflict with 49 CFR part 1520 are preempted by that regulation. 
46 U.S.C. 70103(d) also provides that the information developed under 
this regulation is not required to be disclosed to the public. However, 
Sec. Sec.  104.220, 104.225, 105.210, 105.215, 106.215, and 106.220 of 
these rules state that vessel and facility personnel must have 
knowledge of relevant provisions of the security plan. Therefore, 
vessel and facility owners or operators will determine which provisions 
of the security plans are accessible to crewmembers and other 
personnel. Additionally, COTPs will determine what portions of the AMS 
Plan are accessible to Company or Facility Security Officers.
    Information designated as sensitive security information is 
generally exempt under FOIA, and TSA has concluded that State 
disclosure laws that conflict with 49 CFR part 1520 are preempted by 
that regulation. 46 U.S.C. 70103(d) also provides that the information 
developed under this regulation is not required to be disclosed to the 
public.
    Two commenters stated that our regulations suggest that information 
designated as sensitive security information is exempt from FOIA. One 
commenter suggested that all

[[Page 60478]]

documentation submitted under this rule be done pursuant to the 
Homeland Security Act of 2002, to afford a more legally definite 
protection against disclosure.
    ``Sensitive security information'' is a designation mandated by 
regulations promulgated by TSA and may be found in 49 CFR part 1520. 
These regulations state that information designated as sensitive 
security information may not be shared with the general public. FOIA 
exempts from its mandatory release provisions those items that other 
laws forbid from public release. Thus, security assessments, security 
assessment reports, and security plans, which should be designated as 
sensitive security information, are all exempt from release under FOIA.
    Four commenters urged us to conduct background checks on potential 
members of AMS Committees because the information contained in the AMS 
Plans might be ``secret.'' Two commenters urged us to designate 
security assessments, Vessel Security Plans, Facility Security Plans, 
and information contained in the AMS Plans as ``secret,'' and require 
secret clearance for AMS Committee members.
    We do not believe that a security designation above sensitive 
security information is needed for this material. However, Sec.  
103.300(b)(6) requires AMS Committee charters to include rules for 
handling and processing classified material. Access to the AMS Plan 
will be limited to those on the AMS Committee who have agreed to 
protect the material in a manner appropriate to its security 
sensitivity and have a need to know the material. Guidance on sensitive 
security information and its use will be issued to assist AMS Committee 
members, consistent with 49 CFR part 1520. For material that is 
designated at a level higher than sensitive security information, the 
Coast Guard will screen AMS Committee members for appropriate 
clearances and take precautions appropriate to the material's 
sensitivity. Individuals and Federal, State, Indian Tribal, and local 
agencies outside those with transportation oversight authority will not 
be allowed to view plans or assessments of vessels and facilities 
unless circumstances provide a need to view them. As stated in the 
``Vessel Security'' temporary interim rule (68 FR 39297), certain 
portions of each Vessel Security Plan and Vessel Security Assessment 
must be made accessible to authorities; however, those portions not 
required to be disclosed are protected with the sensitive security 
information designation and need-to-know criteria. Owners and operators 
of vessels and facilities may also request a determination of a higher 
designation than sensitive security information for their plans. The 
Commandant or the COTP, whoever is responsible for reviewing the 
security plan, will retain the designation authority. In all cases, the 
material, if retained by a Federal agency, must be safeguarded to the 
appropriate designation.
    We received 28 comments regarding communication of changes in the 
MARSEC Levels. Most commenters were concerned about the Coast Guard's 
capability to communicate timely changes in MARSEC Levels to facilities 
and vessels. Some stressed the importance of MARSEC Level information 
reaching each port area in the COTP's zone and the entire maritime 
industry. Some stated that local Broadcast Notice to Mariners and 
MARSEC Directives are flawed methods of communication and stated that 
the only acceptable ways to communicate changes in MARSEC Levels, from 
a timing standpoint, are via email, phone, or fax as established by 
each COTP.
    MARSEC Level changes are generally issued at the Commandant level 
and each Marine Safety Office (MSO) will be able to disseminate them to 
vessel or facility owners and operators, or their designees, by various 
ways. Communication of MARSEC Levels will be done in the most 
expeditious means available, given the characteristics of the port and 
its operations. These means will be outlined in the AMS Plan and 
exercised to ensure vessel and facility owners and operators, or their 
designees, are able to quickly communicate with us and vice-versa. 
Because MARSEC Directives will not be as expeditiously communicated as 
other COTP Orders and are not meant to communicate changes in MARSEC 
Levels, we have amended Sec.  101.300 to remove the reference to MARSEC 
Directives.
    We received four comments on the subject of AMS Plan exercises. One 
commenter agreed with our inclusion of tabletop exercises as a cost-
effective means of exercising the security plan. Two commenters 
supported a maritime security field training exercise in each area 
covered by an AMS Plan but requested that the frequency be every 3 
years rather than annually. These commenters stated that the annual 
requirement for an AMS Plan exercise placed an undue burden on the 
maritime sector because it is already conducting vessel and facility 
exercises. One commenter stated that the Coast Guard must be aware that 
the AMS exercise requirements may be overly burdensome to some vessels, 
as they could potentially be required to participate in several AMS 
exercises per year.
    We believe that exercising the AMS Plan annually is essential to 
ensure that it can be effectively implemented, stakeholders with 
security responsibilities are proficient in their responsibilities, and 
any deficiencies in the AMS Plan can be identified and corrected in a 
timely manner. In addition, the AMS Plan exercise frequency must also 
meet the international requirement for an annual exercise found in the 
ISPS Code, part B, regulation 18.6. However, we realize that an AMS 
Plan annual exercise requirement is in addition to the annual exercise 
requirements for Vessel and Facility Security Plans. We also recognize 
that many of the entities affected by Sec.  103.515 are also subject 
to, or regularly participate in, other emergency response or crisis 
management exercises. We are mindful of the potential burdens imposed 
on the regulated community, and other port stakeholders by the number 
of safety, security and response exercises required by various 
regulations, and believe that the objectives for AMS Plan exercises can 
often be met through effective consolidation of exercises. Further, we 
acknowledge that several vessels may be offered the opportunity to 
participate in several AMS Plan exercises per year. Participation in 
these AMS Plan exercises will be subject to the specific details of the 
AMS Plan as developed by the AMS Committee on which those vessel owners 
or operators may participate. While vessel owners and operators will be 
encouraged to participate in AMS Plan exercises and may be requested to 
deviate from normal operations to minimize interference with the AMS 
Plan exercise, they will not be required to participate. In addition, 
we anticipate that COTPs will give ample notice of AMS Plan exercises 
to allow vessel owners and operators to plan appropriately and to 
minimize the impact on the maritime community.
    Section 103.515(c) allows the cognizant District Commander to 
authorize AMS Plan exercise credit for actual increases in the MARSEC 
Level and implementation of security measures during periods of 
critical port operations or special marine events. However, upon 
further review, we have decided to revise Sec.  103.515(c) to provide 
an additional option to participate in another port exercise that 
contains elements of the AMS Plan but is not a stand-alone AMS Plan 
exercise. This annual exercise credit is only given if approved by the 
Area Commander to

[[Page 60479]]

ensure that the appropriate elements of the AMS Plan are implemented. 
We have changed the approval level to the Area Commander, because the 
Area Commander is the approval authority for the AMS Plan, not the 
District Commander. However, we have kept the initial review at the 
District Commander level in order to highlight any regional resource 
issues. Once we obtain sufficient experience with AMS Plan 
implementation, we will review the annual requirement and, if 
warranted, may consider revising the exercise frequency. However, to 
remain in compliance with our international obligations, should we deem 
a change to this annual frequency to be appropriate in the future, we 
must propose the change internationally.

Additional Changes

    In addition, the part heading in this part has been amended to 
align with all the part headings within this subchapter. We have also 
corrected the Table of Contents for the entry for Sec.  103.410, which 
was missing the word ``Assessment.''

Regulatory Assessment

    This final rule is a ``significant regulatory action'' under 
section 3(f) of Executive Order 12866, Regulatory Planning and Review. 
The Office of Management and Budget has reviewed it under that Order. 
It requires an assessment of potential costs and benefits under section 
6(a)(3) of that Order. It is significant under the regulatory policies 
and procedures of the Department of Homeland Security. A final 
assessment is available in the docket as indicated under ADDRESSES. We 
did not receive specific comments on the regulatory assessment for part 
103. A discussion of general comments on the regulatory assessment for 
subchapter H can be found in the preamble of the final rule for part 
101, under ``Regulatory Assessment.''

Cost Assessment

    This rule will affect stakeholders in 47 COTP zones containing 361 
ports. The regulatory assessment and analysis documentation (see USCG-
2003-14733) details estimated costs to public and private stakeholders 
and does not include costs to the Coast Guard. Because the changes in 
this final rule do not affect the original cost estimates presented in 
the temporary interim rule (68 FR 39287) (part 103), the costs remain 
unchanged.
    The total cost estimate of the rule, as it pertains to area 
maritime security, is present value $477 million (2003-2012, 7 percent 
discount rate). The initial cost of the startup period (June 2003-
December 2003) for establishing AMS Committees and creating AMS Plans 
is estimated to be $120 million (non-discounted) for all areas. 
Following the startup period, the first year of implementation (2004), 
consisting of monthly AMS Committee meetings and AMS Plan exercises and 
drills for all areas, is estimated to be $106 million (non-discounted). 
After the first year of implementation, the annual cost of quarterly 
AMS Committee meetings and AMS Plan exercises and drills for all areas 
is estimated to be $46 million (non-discounted). The startup period 
cost associated with creating AMS Committees and AMS Plans for each 
area is the primary cost driver of the rule. Both the startup and 
implementation year period (2003-2004) combined is nearly half of the 
total 10-year present value cost estimate, making initial development, 
planning, and testing the primary costs of Area Maritime Security.
    This rule will require all COTPs to establish security committees, 
plans, training drills, and exercises for their areas, with the 
participation of port stakeholders in their areas. The above costs to 
stakeholders will be paperwork, travel, and communication costs 
associated with participation in AMS Plan implementation.
    We estimate 1,203,200 hours of paperwork and other associated 
planning activities during 2003, the initial period of security 
meetings and development. In 2004, the first year of implementation, we 
estimate the value will fall slightly to 1,090,400 hours of paperwork 
and other related information and communication activities related to 
monthly AMS Committee meetings. In subsequent years, we estimate the 
hours will fall to 488,800 hours annually associated with AMS Committee 
meetings, AMS Plan revisions, and information exercises and drills.

Benefit Assessment

    This final rule is one of six final rules that implement national 
maritime security initiatives concerning general provisions, Area 
Maritime Security, vessels, facilities, Outer Continental Shelf (OCS) 
facilities, and the Automatic Identification System (AIS). The Coast 
Guard used the National Risk Assessment Tool (N-RAT) to assess benefits 
that would result from increased security for vessels, facilities, OCS 
facilities, and areas. The N-RAT considers threat, vulnerability, and 
consequences for several maritime entities in various security-related 
scenarios. For a more detailed discussion on the N-RAT and how we 
employed this tool, refer to ``Applicability of National Maritime 
Security Initiatives'' in the temporary interim rule titled 
``Implementation of National Maritime Security Initiatives'' (68 FR 
39243) (part 101). For this benefit assessment, the Coast Guard used a 
team to calculate a risk score for each entity and scenario before and 
after the implementation of required security measures. The difference 
in before and after scores indicated the benefit of the proposed 
action.
    We recognized that the final rules are a ``family'' of rules that 
will reinforce and support one another in their implementation. We have 
ensured, however, that risk reduction that is credited in one rule is 
not also credited in another. For a more detailed discussion on the 
benefit assessment and how we addressed the potential to double-count 
the risk reduced, refer to ``Benefit Assessment'' in the temporary 
interim rule titled ``Implementation of National Maritime Security 
Initiatives'' (68 FR 39274) (part 101).
    We determined annual risk points reduced for each of the six final 
rules using the N-RAT. The benefits are apportioned among the Vessel, 
Facility, OCS Facility, AMS, and AIS requirements. As shown in Table 1, 
the implementation of AMS security for the affected population reduces 
135,202 risk points annually through 2012. The benefits attributable 
for part 101, General Provisions, were not considered separately since 
it is an overarching section for all the parts.

                             Table 1.--Annual Risk Points Reduced by the Final Rules
----------------------------------------------------------------------------------------------------------------
                                                        Annual risk points reduced by rule
                                 -------------------------------------------------------------------------------
         Maritime entity              Vessel         Facility      OCS facility
                                     security        security        security           AMS             AIS
----------------------------------------------------------------------------------------------------------------
Vessels.........................         778,633           3,385           3,385           3,385           1,317

[[Page 60480]]

 
Facilities......................           2,025         469,686  ..............           2,025  ..............
OCS facilities..................              41  ..............           9,903  ..............  ..............
                                                 -----------------
Port Areas......................             587             587  ..............         129,792             105
    Total.......................         781,285         473,659          13,288         135,202           1,422
----------------------------------------------------------------------------------------------------------------

    Once we determined the annual risk points reduced, we discounted 
these estimates to their present value (7 percent discount rate, 2003-
2012) so that they could be compared to the costs. We presented the 
cost effectiveness, or dollars per risk point reduced, in two ways: 
First, we compared the first-year cost and first-year benefit because 
the first-year cost is the highest in our assessment as companies 
develop security plans and purchase equipment. Second, we compared the 
10-year present value cost to the 10-year present value benefit. The 
results of our assessment are presented in Table 2.

               Table 2.--First-Year and 10-Year Present Value Cost and Benefit of the Final Rules.
----------------------------------------------------------------------------------------------------------------
                                                                    Final rule
                                 -------------------------------------------------------------------------------
              Item                    Vessel         Facility      OCS facility
                                     security        security        security           AMS            AIS *
----------------------------------------------------------------------------------------------------------------
First-Year Cost (millions)......            $218          $1,125              $3            $120             $30
First-Year Benefit..............         781,285         473,659          13,288         135,202           1,422
First-Year Cost Effectiveness ($/            279           2,375             205             890          21,224
 Risk Point Reduced)............
10-Year Present Value Cost                 1,368           5,399              37             477              26
 (millions).....................
10-Year Present Value Benefit...       5,871,540       3,559,655          99,863       1,016,074          10,687
10-Year Present Value Cost                   233           1,517             368             469          2,427
 Effectiveness ($/Risk Point
 Reduced).......................
----------------------------------------------------------------------------------------------------------------
* Cost less monetized safety benefit.

Small Entities

    Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have 
considered whether this rule would have a significant economic impact 
on a substantial number of small entities. The term ``small entities'' 
comprises small businesses, not-for-profit organizations that are 
independently owned and operated and are not dominant in their fields, 
and governmental jurisdictions with populations of less than 50,000.
    The stakeholders affected by this rule include a variety of 
businesses and governments. The COTP will designate approximately 200 
stakeholders, per maritime area, to engage in security planning, 
meetings, and drills. Full participation by these stakeholders will be 
voluntary. We estimate the first-year cost, per stakeholder, to be 
$12,800 (non-discounted). In subsequent years, the annual cost, per 
stakeholder (full participation in this rule), falls to $4,940 (non-
discounted).
    The results from our assessment (copy available in the docket) 
suggest that the impact of this rule is not significant for port and 
maritime area authorities, owners, or operators because of the low 
average annual cost per stakeholder and the voluntary nature of 
participating in this rule.
    We estimated the majority of small entities have a less than 3 
percent impact on revenue if they choose to fully participate in this 
rule. We anticipate the few remaining small entities that may have a 
greater than 3 percent impact on annual revenue will either opt out 
(not participate) or partially participate in the rule to the extent 
that the impact on revenue is not a burden.
    There are other stakeholders affected by this rule in addition to 
port authorities, owners, and operators. The stakeholders could be any 
entity that the COTP invites to partially or fully participate. We 
anticipate the impact on other possible small entity stakeholders to be 
minimal because of the low average annual cost per stakeholder and the 
voluntary nature of participating in this rule.
    Therefore, the Coast Guard certifies, under 5 U.S.C. 605(b), that 
this rule will not have a significant economic impact on a substantial 
number of small entities.
    We did not receive comments regarding small entities. Additional 
information on small entity impacts is available in the ``Small 
Entities'' section of the preamble for each final rule.

Assistance for Small Entities

    Under section 213(a) of the Small Business Regulatory Enforcement 
Fairness Act of 1996 (Pub. L. 104-121), we offered to assist small 
entities in understanding the rule so that they could better evaluate 
its effects on them and participate in the rulemaking. We provided 
small entities with a name, phone number, and e-mail address to contact 
if they had questions concerning the provisions of the final rules or 
options for compliance.
    We have placed Small Business Compliance Guides in the dockets for 
the Area Maritime, Vessel, and Facility Security and the AIS rules. 
These Compliance Guides will explain the applicability of the 
regulations, as well as the actions small businesses will be required 
to take in order to comply with each respective final rule. We have not 
created Compliance Guides for part 101 or for the OCS Facility Security 
final rule, as neither will affect a substantial number of small 
entities.
    Small businesses may send comments on the actions of Federal 
employees who enforce, or otherwise determine compliance with, Federal 
regulations to

[[Page 60481]]

the Small Business and Agriculture Regulatory Enforcement Ombudsman and 
the Regional Small Business Regulatory Fairness Boards. The Ombudsman 
evaluates these actions annually and rates each agency's responsiveness 
to small business. If you wish to comment on actions by employees of 
the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247).

Collection of Information

    This final rule contains no new collection of information 
requirements under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-
3520). As defined in 5 CFR 1320.3(c), ``collection of information'' 
comprises reporting, recordkeeping, monitoring, posting, labeling, and 
other similar actions. The final rules are covered by two existing OMB-
approved collections--1625-0100 [formerly 2115-0557] and 1625-0077 
[formerly 2115-0622].
    We did not receive comments regarding collection of information. 
You are not required to respond to a collection of information unless 
it displays a currently valid OMB control number. We received OMB 
approval for these collections of information on June 16, 2003. They 
are valid until December 31, 2003.

Federalism

    Executive Order 13132 requires the Coast Guard to develop an 
accountable process to ensure ``meaningful and timely input by State 
and local officials in the development of regulatory policies that have 
federalism implications.'' ``Policies that have federalism 
implications'' is defined in the Executive Order to include regulations 
that have ``substantial direct effects on the States, on the 
relationship between the national government and the States, or on the 
distribution of power and responsibilities among the various levels of 
government.'' Under the Executive Order, the Coast Guard may construe a 
Federal statute to preempt State law only where, among other things, 
the exercise of State authority conflicts with the exercise of Federal 
authority under the Federal statute.
    This action has been analyzed in accordance with the principles and 
criteria in the Executive Order, and it has been determined that this 
final rule does have Federalism implications and a substantial direct 
effect on the States. This final rule requires those States that own or 
operate vessels or facilities that may be involved in a transportation 
security incident to conduct security assessments of their vessels and 
facilities and to develop security plans for their protection. These 
plans must contain measures that will be implemented at each of the 
three MARSEC Levels and must be reviewed and approved by the Coast 
Guard.
    Additionally, the Coast Guard has reviewed the MTSA with a view to 
whether we may construe it as non-preemptive of State authority over 
the same subject matter. We have determined that it would be 
inconsistent with the federalism principles stated in the Executive 
Order to construe the MTSA as not preempting State regulations that 
conflict with the regulations in this final rule. This is because 
owners or operators of facilities and vessels-that are subject to the 
requirements for conducting security assessments, planning to secure 
their facilities and vessels against threats revealed by those 
assessments, and complying with the standards, both performance and 
specific construction, design, equipment, and operating requirements--
must have one uniform, national standard that they must meet. Vessels 
and shipping companies, particularly, would be confronted with an 
unreasonable burden if they had to comply with varying requirements as 
they moved from State to State. Therefore, we believe that the 
federalism principles enumerated by the Supreme Court in U.S. v. Locke, 
529 U.S. 89 (2000) regarding field preemption of certain State vessel 
safety, equipment, and operating requirements extends equally to this 
final rule, especially regarding the longstanding history of 
significant Coast Guard maritime security regulation and control of 
vessels for security purposes. But, the same considerations apply to 
facilities, at least insofar as a State law or regulation applicable to 
the same subject for the purpose of protecting the security of the 
facility would conflict with a Federal regulation; in other words, it 
would either actually conflict or would frustrate an overriding Federal 
need for uniformity.
    Finally, it is important to note that the regulations implemented 
by this final rule bear on national and international commerce where 
there is no constitutional presumption of concurrent State regulation. 
Many aspects of these regulations are based on the U.S. international 
treaty obligations regarding vessel and port facility security 
contained in SOLAS and the complementary ISPS Code. These international 
obligations reinforce the need for uniformity regarding maritime 
commerce.
    Notwithstanding the foregoing preemption determinations and 
findings, the Coast Guard has consulted extensively with appropriate 
State officials, as well as private stakeholders during the development 
of this final rule. For these final rules, we met with the National 
Conference of State Legislatures (NCSL) Taskforce on Protecting 
Democracy on July 21, 2003, and presented briefings on the temporary 
interim rules to the NCSL's Transportation Committee on July 23, 2003. 
We also briefed several hundred State legislators at the American 
Legislative Exchange Council on August 1, 2003. We held a public 
meeting on July 23, 2003, with invitation letters to all State homeland 
security representatives. A few State representatives attended this 
meeting and submitted comments to a public docket prior to the close of 
the comment period. The State comments to the docket focused on a wide 
range of concerns including consistency with international requirements 
and the protection of sensitive security information.
    Other concerns raised by the NCSL at the briefings mentioned above 
included questions on how the Coast Guard will enforce security 
standards on foreign flag vessels and how multinational crewmember 
credentials will be checked.
    We are using the same cooperative arrangement that we have used 
with success in the safety realm by accepting SOLAS certificates 
documenting flag-state approval of foreign SOLAS Vessel Security Plans 
that comply with the comprehensive requirements of the ISPS Code. The 
consistency of the international and domestic security regimes, to the 
extent possible, was always a central part of the negotiations for the 
MTSA and the ISPS Code. In the MTSA, Congress explicitly found that 
``it is in the best interests of the U.S. to implement new 
international instruments that establish'' a maritime security system. 
We agree and will exercise Port State Control to ensure that foreign 
vessels have approved plans and have implemented adequate security 
standards on which these rules are based. If vessels do not meet our 
security requirements, the Coast Guard may prevent those vessels from 
entering the U.S. or take other necessary measures that may result in 
vessel delays or detentions. The Coast Guard will not hesitate to 
exercise this authority in appropriate cases. We discuss the ongoing 
initiatives of ILO and the requirements under the MTSA to develop 
seafarers' identification criteria in the temporary interim rule titled 
``Implementation of National maritime Security Initiatives''(68 FR 
39264) (part 101). We will continue to

[[Page 60482]]

work with other agencies to coordinate seafarer access and 
credentialing issues. These final rules will also ensure that vessel 
and facility owners and operators take an active role in deterring 
unauthorized access.

Unfunded Mandates Reform Act

    The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) 
requires Federal agencies to assess the effects of their discretionary 
regulatory actions. In particular, the Act addresses actions that may 
result in the expenditure by a State, local, or Indian Tribal 
government, in the aggregate, or by the private sector of $100,000,000 
or more in any one year. This final rule is exempted from assessing the 
effects of the regulatory action as required by the Act because it is 
necessary for the national security of the United States (2 U.S.C. 
1503(5)). We did not receive comments regarding the Unfunded Mandates 
Reform Act.

Taking of Private Property

    This final rule will not effect a taking of private property or 
otherwise have taking implications under Executive Order 12630, 
Governmental Actions and Interference with Constitutionally Protected 
Property Rights. We did not receive comments regarding the taking of 
private property.

Civil Justice Reform

    This final rule meets applicable standards in sections 3(a) and 
3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize 
litigation, eliminate ambiguity, and reduce burden. We did not receive 
comments regarding Civil Justice Reform.

Protection of Children

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

Indian Tribal Governments

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

Energy Effects

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

Environment

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

List of Subjects in 33 CFR Part 103

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

0
Accordingly, the interim rule adding 33 CFR part 103, that was 
published at 68 FR 39284 on July 1, 2003, and amended at 68 FR 41914 on 
July 16, 2003, is adopted as a final rule with the following changes:

PART 103--MARITIME SECURITY: AREA MARITIME SECURITY

0
1. The authority citation for part 103 continues to read as follows:

    Authority: 33 U.S.C. 1226, 1231; 46 U.S.C. 70102, 70103, 70104, 
70112; 50 U.S.C. 191; 33 CFR 1.05-1, 6.04-11, 6.14, 6.16, and 6.19; 
Department of Homeland Security Delegation No. 0170.1.

0
2. Revise the heading to part 103 to read as shown above.

0
3. In the Table of Contents, revise the entry for Sec.  103.410 to read 
as follows:


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

0
4. In Sec.  103.305--
0
a. Revise paragraph (a) introductory text and paragraph (a)(5), to read 
as set out below;
0
b. Redesignate paragraph (b) as paragraph (c); and
0
c. Add new paragraph (b) to read as follows:


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

    (a) An AMS Committee will be composed of not less than seven 
members having an interest in the security of the area and who may be 
selected from--
* * * * *
    (5) Maritime industry, including labor;
* * * * *
    (b) At least seven of the members must each have 5 or more years of 
experience related to maritime or port security operations.
* * * * *


Sec.  103.500  [Amended]

0
5. In Sec.  103.500(b), remove the words ``AMS Plans are sensitive 
security information and must be'' and add, in their place, the words 
``Portions of the AMS Plan may contain sensitive security information, 
and those portions must be marked as such and''.

0
6. In Sec.  103.505--
0
a. Redesignate paragraphs (s), (t), and (u) as paragraphs (t), (u), and 
(v), respectively;
0
b. In newly redesignated paragraph (u), remove the word ``and'';
0
c. In newly redesignated paragraph (v), remove the period and add, in 
its place, the word ``; and''; and
0
d. Add new paragraphs (s) and (w) to read as follows:


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

* * * * *

[[Page 60483]]

    (s) The jurisdiction of Federal, State, Indian Tribal, and local 
government agencies and law enforcement entities over area security 
related matters;
* * * * *
    (w) Identification of any facility otherwise subject to part 105 of 
this subchapter that the COTP has designated as a public access 
facility within the area, the security measures that must be 
implemented at the various MARSEC Levels, and who is responsible for 
implementing those measures.

0
7. In Sec.  103.515--
0
a. In paragraph (a), after the word ``conduct'', add the words ``or 
participate in''; and
0
b. Revise paragraph (c) to read as follows:


Sec.  103.515  Exercises.

* * * * *
    (c) Upon review by the cognizant District Commander, and approval 
by the cognizant Area Commander, the requirements of this section may 
be satisfied by--
    (1) Participation of the COTP and appropriate AMS Committee members 
or other appropriate port stakeholders in an emergency response or 
crisis management exercise conducted by another governmental agency or 
private sector entity, provided that the exercise addresses components 
of the AMS Plan;
    (2) An actual increase in MARSEC Level; or
    (3) Implementation of enhanced security measures enumerated in the 
AMS Plan during periods of critical port operations or special marine 
events.

    Dated: October 8, 2003.
Thomas H. Collins,
Admiral, Coast Guard, Commandant.
[FR Doc. 03-26346 Filed 10-20-03; 8:45 am]
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