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


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Parts 101 and 105

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


Seafarers' Access to Maritime Facilities

AGENCY: Coast Guard, DHS.

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

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

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

ADDRESSES: You may submit comments identified by docket number USCG-
2013-1087 using any one of the following methods:
    (1) Federal eRulemaking Portal: http://www.regulations.gov.
    (2) Fax: 202-493-2251.
    (3) Mail: Docket Management Facility (M-30), U.S. Department of 
Transportation, West Building Ground Floor, Room W12-140, 1200 New 
Jersey

[[Page 77982]]

Avenue SE., Washington, DC 20590-0001.
    (4) Hand delivery: Same as mail address above, between 9 a.m. and 5 
p.m., Monday through Friday, except Federal holidays. The telephone 
number is 202-366-9329.
    To avoid duplication, please use only one of these four methods. 
See the ``Public Participation and Request for Comments'' portion of 
the SUPPLEMENTARY INFORMATION section below for instructions on 
submitting comments.
    Collection of Information Comments: If you have comments on the 
collection of information discussed in section VI.D. of this notice of 
proposed rulemaking (NPRM), you must also send comments to the Office 
of Information and Regulatory Affairs (OIRA), Office of Management and 
Budget. To ensure that your comments to OIRA are received on time, the 
preferred methods are by email to [email protected] (include 
the docket number and ``Attention: Desk Officer for Coast Guard, DHS'' 
in the subject line of the email) or fax at 202-395-6566. An alternate, 
though slower, method is by U.S. mail to the Office of Information and 
Regulatory Affairs, Office of Management and Budget, 725 17th Street 
NW., Washington, DC 20503, ATTN: Desk Officer, U.S. Coast Guard.
    The public meeting will be held at the Department of Transportation 
Headquarters, Oklahoma Room, 1200 New Jersey Avenue SE., Washington, DC 
20590; the building telephone number is 202-366-1035. The meeting is 
open to the public. Seating is limited, so please reserve a seat as 
soon as possible, but no later than January 16, 2015. To reserve a 
seat, please email [email protected] with the participant's first 
and last name for all U.S. Citizens, and additionally official title, 
date of birth, country of citizenship, and passport number with 
expiration date for non-U.S. Citizens. To gain entrance to the 
Department of Transportation Headquarters building, all meeting 
participants must present government-issued photo identification (i.e., 
state issued driver's license). If a visitor does not have a photo ID, 
that person will not be permitted to enter the facility. All visitors 
and any items brought into the facility will be required to go through 
security screening each time they enter the building. For information 
on facilities or services for individuals with disabilities or to 
request special assistance at the public meeting, contact LT Mason 
Wilcox at the telephone number or email address indicated under the FOR 
FURTHER INFORMATION CONTACT section of this notice.
    A live video feed of the meeting will be available upon request to 
LT Mason Wilcox at [email protected].

FOR FURTHER INFORMATION CONTACT: If you have questions on this proposed 
rule, call or email LT Mason Wilcox, Cargo and Facilities Division (CG-
FAC-2), Coast Guard; telephone 202-372-1123, email 
[email protected]. If you have questions on viewing or submitting 
material to the docket, call Ms. Cheryl Collins, Program Manager, 
Docket Operations, telephone 202-366-9826.

SUPPLEMENTARY INFORMATION:

Table of Contents

I. Public Participation and Request for Comments
    A. Submitting comments
    B. Viewing comments and documents
    C. Privacy Act
    D. Public meeting
II. Abbreviations
III. Executive Summary
    A. Purpose of the Regulatory Action
    1. Need for the Regulatory Action
    2. Legal Authority for the Regulatory Action
    B. Summary of the Major Provisions of the Regulatory Action
    C. Summary of Costs and Benefits
IV. Background
V. Discussion of Proposed Rule
    A. 33 CFR 105.200(b)(9)
    B. 33 CFR 105.237
    C. 33 CFR 105.405
    D. 33 CFR 101.112 (Federalism)
    E. Public Comments
VI. Regulatory Analyses
    A. Regulatory Planning and Review
    B. Small Entities
    C. Assistance for Small Entities
    D. Collection of Information
    E. Federalism
    F. Unfunded Mandates Reform Act
    G. Taking of Private Property
    H. Civil Justice Reform
    I. Protection of Children
    J. Indian Tribal Governments
    K. Energy Effects
    L. Technical Standards
    M. Environment

I. Public Participation and Request for Comments

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

A. Submitting Comments

    If you submit a comment, please include the docket number for this 
rulemaking (USCG-2013-1087), indicate the specific section of this 
document to which each comment applies, and provide a reason for each 
suggestion or recommendation. You may submit your comments and material 
online or by fax, mail, or hand delivery, but please use only one of 
these means. We recommend that you include your name and a mailing 
address, an email address, or a phone number in the body of your 
document so that we can contact you if we have questions regarding your 
submission.
    To submit your comment online, go to http://www.regulations.gov and 
insert ``USCG-2013-1087'' in the ``Search'' box. Click on ``Submit a 
Comment in the ``Actions'' column. If you submit your comments by mail 
or hand delivery, submit them in an unbound format, no larger than 8\1/
2\ by 11 inches, suitable for copying and electronic filing. If you 
submit comments by mail and would like to know that they reached the 
Facility, please enclose a stamped, self-addressed postcard or 
envelope.
    We will consider all comments and material received during the 
comment period and may change this proposed rule based on your 
comments.

B. Viewing Comments and Documents

    To view comments, as well as documents mentioned in this preamble 
as being available in the docket, go to http://www.regulations.gov and 
insert ``USCG-2013-1087'' in the ``Search'' box. Click ``Search.'' 
Click the ``Open Docket Folder'' in the ``Actions'' column. If you do 
not have access to the Internet, you may view the docket online by 
visiting the Docket Management Facility in Room W12-140 on the ground 
floor of the Department of Transportation West Building, 1200 New 
Jersey Avenue SE., Washington, DC 20590, between 9 a.m. and 5 p.m., 
Monday through Friday, except Federal holidays. We have an agreement 
with the Department of Transportation to use the Docket Management 
Facility.

C. Privacy Act

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

D. Public Meeting

    We plan to hold a public meeting regarding the proposals in this 
NPRM. The meeting will be held on January 23, 2015 from 9:00 a.m. to 
12:00 p.m. The meeting will be held at the location

[[Page 77983]]

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

II. Abbreviations

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

III. Executive Summary

A. Purpose of the Regulatory Action

    Throughout the maritime sector, vessels arrive at Maritime 
Transportation Security Act of 2002 (MTSA)-regulated facilities for any 
number of commercial and other purposes.\1\ Vessels are operated by 
seafarers, who are individuals assigned to work on a vessel and who may 
be at sea for days, weeks, or months as part of their employment on 
that vessel. Generally, transiting through a MTSA-regulated facility is 
the only way for seafarers to access the shore, and services, 
businesses, family members and friends, among other things, beyond the 
vessel and facility. Additionally, individuals providing services for 
seafarers or having another legitimate purpose for accessing the 
vessel, generally can only access a vessel moored at a MTSA-regulated 
facility by transiting through the facility.
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    \1\ For purposes of this rule, ``MTSA-regulated facility'' is 
described in 33 CFR 105.105, and is detailed more fully below in the 
Background section.
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1. Need for the Regulatory Action
    This regulatory action is necessary to implement section 811 of the 
Coast Guard Authorization Act of 2010 (Pub. L. 111-281, codified at 46 
U.S.C. 70103 note) (CGAA 2010), which requires facility owners and 
operators to ensure shore access for seafarers and other individuals. 
Specifically, section 811 requires each MTSA-regulated facility to 
``provide a system for seamen assigned to a vessel at that facility, 
pilots, and representatives of seamen's welfare and labor organizations 
to board and depart the vessel through the facility in a timely manner 
at no cost to the individual.''
    This regulatory action is necessary to help ensure that owners and 
operators of facilities regulated by the Coast Guard, under MTSA (Pub. 
L. 107-295, codified at 46 U.S.C. 70101 et seq.), provide seafarers 
assigned to vessels moored at the facility with the ability to board 
and depart vessels to access the shore through the facility in a timely 
manner and at no cost to the seafarer.
    Additionally, this regulatory action is necessary to help ensure 
that facility owners and operators provide the same no-cost access 
between a vessel and facility gate to other individuals with a 
legitimate purpose for accessing the vessel. These individuals include: 
representatives of seafarers' welfare and labor organizations; port 
workers organizations; port engineers or superintendents; 
classification society surveyors; ship's agents; pilots; and other 
authorized personnel performing work for a vessel moored at the 
facility, in accordance with the Declaration of Security (DoS)or other 
arrangement between the vessel and facility.
    This regulatory action applies to owners and operators of MTSA-
regulated facilities, which are facilities required by MTSA to 
implement national maritime security initiatives. One of the required 
security features is the provision of security measures for access 
control. Coast Guard access-control regulations at 33 CFR 105.255 
require MTSA-regulated facilities to control an individual's access to 
the facility and designated secure areas within the facility unless 
that individual is either authorized to access that area or is escorted 
by someone who is authorized to access the area. Accordingly, facility 
owners and operators must consider the security implications of 
permitting seafarers and other individuals to transit through their 
facilities. Nonetheless, other Coast Guard regulations addressing MTSA-
regulated facility security requirements at 33 CFR 105.200(b)(9) 
require such facilities to ensure coordination of shore leave for these 
persons.
2. Legal Authority for the Regulatory Action
    Section 811 of the CGAA 2010 requires each MTSA-regulated facility, 
in its Facility Security Plan (FSP), to ``provide a system for seamen 
assigned to a vessel at that facility, pilots, and representatives of 
seamen's welfare and labor organizations to board and depart the vessel 
through the facility in a timely manner at no cost to the individual.'' 
The Secretary of Homeland Security (Secretary) is authorized under 46 
U.S.C. 70124 to issue regulations necessary to implement 46 U.S.C. 
70103. The Secretary delegated to the Commandant of the Coast Guard the 
authority to carry out the functions and exercise the authorities in 46 
U.S.C. 70103 (DHS Delegation 0170.1(97)).
    Additionally, the Secretary is authorized under 33 U.S.C. 1226 to 
take certain actions to advance port, harbor, and coastal facility 
security. The Secretary is authorized under 33 U.S.C. 1231 to 
promulgate regulations to implement 33 U.S.C. chapter 26, including 33 
U.S.C. 1226. The Secretary has delegated this authority to the 
Commandant of the Coast Guard (DHS Delegation 0170.1(70) and (71)).

B. Summary of the Major Provisions of the Regulatory Action

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

C. Summary of Costs and Benefits

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

[[Page 77984]]

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

IV. Background

    Under MTSA, the Coast Guard is authorized to regulate maritime 
facilities. For purposes of MTSA, the term ``facility'' means ``any 
structure or facility of any kind located in, on, under, or adjacent to 
any waters subject to the jurisdiction of the United States.'' 46 
U.S.C. 70101(a)(2).
    Existing Coast Guard regulations at 33 CFR part 105 implementing 
MTSA apply to certain facilities including: waterfront facilities 
handling dangerous cargoes; \2\ waterfront facilities handling 
liquefied natural gas \3\ and liquefied hazardous gas; \4\ facilities 
transferring oil or hazardous materials \5\ in bulk; facilities that 
receive vessels certificated to carry more than 150 passengers; 
facilities that receive vessels subject to the International Convention 
for the Safety of Life at Sea, 1974 (SOLAS), Chapter XI; facilities 
that receive foreign cargo vessels greater than 100 gross register 
tons; generally, facilities that receive U.S. cargo and miscellaneous 
vessels greater than 100 gross register tons; and barge fleeting 
facilities that receive barges carrying, in bulk, cargoes regulated 
under the Coast Guard's regulations regarding tank vessels or certain 
dangerous cargoes (CDCs).\6\ This rulemaking applies to the above-
described facilities regulated by the Coast Guard pursuant to the 
authority granted in MTSA.
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    \2\ ``Dangerous cargoes'' are defined at 33 CFR 126.3.
    \3\ ``Liquefied natural gas'' is defined at 33 CFR 127.005.
    \4\ ``Liquefied hazardous gas'' is defined at 33 CFR 127.005.
    \5\ ``Hazardous materials'' are defined at 33 CFR 154.105.
    \6\ ``CDCs'' are defined at 33 CFR 160.204.
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    MTSA provides the Coast Guard with statutory authorities and 
mandates to advance the Coast Guard's maritime security mission to 
detect, deter, disrupt, and respond to attacks and other disasters that 
might affect the United States, its territory, population, vessels, 
facilities, and critical maritime infrastructure. On July 1, 2003, the 
Coast Guard published a series of six temporary interim rules to 
promulgate maritime security requirements mandated by MTSA. (See 
Implementation of National Maritime Security Initiatives, 68 FR 39240 
(July 1, 2003).) One of the six interim rules specifically addressed 
security measures at maritime facilities. (See Facility Security, 68 FR 
39315 (July 1, 2003)). The interim rule added part 105 ``Maritime 
Security: Facilities'' to subchapter H of Title 33 of the CFR. The 
interim rule required facility owners, operators, and security 
personnel to implement measures for controlling access to maritime 
facilities. In crafting the interim rule, we recognized both the need 
for facility access control measures, and the competing need for 
seafarers and other individuals to have the ability to board and depart 
vessels through the facilities. Thus, the interim rule included a 
requirement that each facility owner or operator ``[e]nsure 
coordination of shore leave for vessel personnel or crew change-out, as 
well as access through the facility for visitors of the vessel 
(including representatives of seafarers' welfare and labor 
organizations), with vessel operators in advance of a vessel's 
arrival[.]'' (See 68 FR 39317).
    On October 22, 2003, the Coast Guard published a final rule 
adopting, with changes, the July 1, 2003, interim rule on security 
measures at maritime facilities. (See Facility Security, 68 FR 60515 
(Oct. 22, 2003)). Specifically, the final rule adopted the provision 
regarding coordination of shore leave, and also included an additional 
provision that permits facility owners or operators to ``. . . refer to 
treaties of friendship, commerce, and navigation between the U.S. and 
other nations [when coordinating shore leave].'' This new provision was 
added in response to public comments regarding the difficulty that some 
foreign seafarers have experienced when seeking shore leave. (See 68 FR 
60520).
    The regulatory text adopted in the October 22, 2003, final rule 
remains unchanged today, although it has been relocated to 33 CFR 
105.200(b)(9). Section 105.200(b)(9) provides, in part, that each 
facility owner or operator is currently required to ``[e]nsure 
coordination of shore leave for vessel personnel or crew change-out, as 
well as access through the facility for visitors of the vessel 
(including representatives of seafarers' welfare and labor 
organizations), with vessel operators in advance of a vessel's 
arrival.''
    This current regulatory requirement for shore leave is bolstered by 
international agreement. The United States is a signatory to the ISPS 
Code, which sets forth international ship and port security measures. 
Like the Coast Guard's implementation of MTSA that requires both secure 
facilities and shore leave, ISPS Code furthers facility security, but 
not at the expense of the seafarer. The preamble to ISPS Code 
(paragraph 11), ratified in December 2002, states: ``Contracting 
Governments when approving ship and port FSPs should pay due cognizance 
to the fact that ship's personnel live and work on the vessel and need 
shore leave and access to shore-based seafarer welfare facilities, 
including medical care.'' In light of this international agreement, if 
the U.S. is known internationally for having facilities that do not 
provide shore leave access, other countries may consider denying shore 
leave access to U.S. seafarers while they are abroad.
    The Coast Guard understands that, currently, approximately 90 
percent of MTSA-regulated facility owners and operators comply with the 
current shore leave requirements in 33 CFR 105.200(b)(9) and provide 
seafarers and other individuals access between the vessel and the 
facility gate.\7\ However, we have received complaints that some 
facility owners and operators are still denying seafarers and other 
individuals any access between the vessel and facility gate despite 33 
CFR 105.200(b)(9) because of how some facility owners and operators 
implement or interpret that requirement. The apparent rationale for 
denying such access is that 33 CFR 105.200(b)(9) only requires 
coordination of shore leave if there is actual shore leave to 
coordinate, and there is no shore leave to coordinate if access to 
shore is denied altogether. We have received other complaints that some 
facilities comply with 33 CFR 105.200(b)(9) by permitting access to and 
from vessels, but make shore access impractical for seafarers and other 
individuals by placing extreme limitations on escort availability or by 
charging exorbitant fees. For example, we have received complaints of 
wait-times up to 3-hours for TWIC-holding facility personnel or taxi 
drivers to arrive and escort seafarers through a facility. The 
seafarers seeking access are often TWIC-holders themselves, and there 
is only a short distance between the vessel and the facility gate, the 
span of which is visible to security guards at the gate. Nonetheless, 
some facilities have prohibited TWIC-holding seafarers from walking 
between the vessel and facility gate. We have received other complaints 
of facilities charging $400-$500 (in addition to requiring the vessel 
agent to independently hire its own

[[Page 77985]]

TWIC-holding escorts) before allowing seafarers ashore. We have also 
received complaints of facilities completely denying seafarers the 
ability to disembark a vessel to go ashore.
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    \7\ Based on the Seamen's Church Institute's (SCI) Center for 
Seafarers' Rights surveys from 2006 to 2014.
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    To address these complaints, the Coast Guard issued guidance in 
October 2008 (ALCOAST 529/08) and October 2009 (ALCOAST 575/09), 
advising Coast Guard Captains of the Port (COTPs) to encourage facility 
owners and operators to remedy inadequate access issues. Subsequent to 
those efforts, we also conducted a joint evaluation of seafarers' 
access issues with CBP, culminating in additional Coast Guard guidance 
instructing COTPs to compile lists of facilities identified as 
deficient with respect to seafarers' access. In January 2010, the COTPs 
had reviewed 62 percent of all FSPs and reported that 4 percent lacked 
adequate seafarers' access provisions.
    While the Coast Guard was addressing these complaints, Congress 
mandated seafarers' access in section 811 of the CGAA 2010. This 
mandate requires each FSP to ``provide a system for seamen assigned to 
a vessel at that facility, pilots, and representatives of seamen's 
welfare and labor organizations to board and depart the vessel through 
the facility in a timely manner at no cost to the individual.'' The 
National Maritime Security Advisory Committee (NMSAC) also considered 
section 811 in a working group that met on March 22 and May 3, 2011, 
resulting in a resolution containing recommended definitions for the 
statutory terms ``system,'' ``timely,'' and ``no cost to the 
individual.'' The NMSAC resolution provided the Coast Guard with useful 
conceptual information. Although the Coast Guard did not adopt the 
exact text of the NMSAC definitions in this NPRM, the proposals in this 
NPRM are consistent with the NMSAC recommendations. The NMSAC 
resolution is available for viewing in the public docket for this 
rulemaking.
    This proposed rule would implement section 811 by amending current 
regulations to comply with statutory requirements for each facility 
owner or operator to provide seafarers associated with a vessel moored 
at the facility, and other individuals, access between the vessel and 
facility gate in a timely manner and at no cost to the seafarer or 
other individual.
    This rule would not affect the authority of CBP to inspect and 
process individuals seeking entry to the U.S. For those seafarers and 
other individuals subject to CBP's authority, this rule would apply to 
facility owners and operators only after such seafarers and other 
individuals have been inspected, processed, and admitted to the U.S. by 
CBP.

V. Discussion of Proposed Rule

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

A. 33 CFR 105.200(b)(9)

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

B. 33 CFR 105.237

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

33 CFR 105.237(a)

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

33 CFR 105.237(b)

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

[[Page 77986]]

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

33 CFR 105.237(c)

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

33 CFR 105.237(d)

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

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

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

[[Page 77987]]

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

33 CFR 105.237(e)

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

33 CFR 105.237(f)

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

C. 33 CFR 105.405

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

D. 33 CFR 101.112 (Federalism)

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

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

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

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

E. Public Comments

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

[[Page 77988]]

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

VI. Regulatory Analyses

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

A. Regulatory Planning and Review

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

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

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

[[Page 77989]]

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

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

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

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

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

                                              Table 2--Cost Matrix
----------------------------------------------------------------------------------------------------------------
 
----------------------------------------------------------------------------------------------------------------
                  Section(s) and Descriptions                          Population           Costs and Benefits
----------------------------------------------------------------------------------------------------------------
Sec.   101.112.......................  Adds Federalism          All facilities.........  No cost because it
                                        language.                                         deals with the
                                                                                          interaction between
                                                                                          the federal government
                                                                                          and states.
Sec.   105.200(b)(1)-(6).............  Rewords language to      All facilities.........  No cost because it
                                        clarify by adding the                             clarifies parameter of
                                        word ``personnel'' and                            security personnel
                                        removing the words                               It clarifies the
                                        ``within that                                     acronyms
                                        structure``..                                    It is a grammatical
                                       Spells out acronyms....                            change only.
                                       Rewords language to
                                        clarify.
Sec.   105.200(b)(9).................  Replaces the word,       All facilities.........  Cost to implement a
                                        ``coordination'' with   All seafarers and         system of access for
                                        ``implementation of a    covered individuals      seafarers and covered
                                        system, in accordance    that would receive       individuals going
                                        with Sec.   105.237 of   access under this rule.  through a facility.
                                        this subpart,
                                        coordinating``. Refers
                                        to Sec.
                                        105.237(b)(4).
Sec.   105.200(b)(14)................  Adds reference to Sec.   All facilities.........  No cost. Narrows
                                         105.255(c).            All seafarers and         reference from entire
                                                                 covered individuals      section to paragraph
                                                                 that would receive       (c).
                                                                 access under this rule.
Sec.   105.237(a)-(d)................  (a) Facilities must      Non-conforming           Cost for non-conforming
                                        have procedures in       facilities.              facilities to
                                        place to allow access   All seafarers and         implement a system of
                                        through the facility.    covered individuals      access for seafarers
                                       (b) Provides list of      that would receive       and covered
                                        seafarers and covered    access under this rule.  individuals going
                                        individuals.                                      through a facility.
                                       (c) Timing of access is
                                        dependent on COTP.
                                       (d) Outlines methods of
                                        access.
                                       (d)(3) Individual cost
                                        is limited to local
                                        taxi fare.
Sec.   105.237(e)....................  Stipulates no cost to    All facilities.........  Cost may be passed onto
                                        the individual.         All seafarers and         the vessel.
                                                                 covered individuals
                                                                 that would receive
                                                                 access under this rule.
Sec.   105.237(f)....................  Stipulates that a        All facilities.........  Paperwork cost to add
                                        system of access must                             description in the
                                        be documented in the                              FSP.
                                        FSP.
Sec.   105.405(a)(9).................  Specifies the location   All facilities.........  Paperwork cost to add
                                        in the FSP where                                  description in the
                                        facilities must                                   FSP.
                                        outline escorting
                                        procedures.
----------------------------------------------------------------------------------------------------------------

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


[[Page 77990]]


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

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

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

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

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

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

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

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

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

[[Page 77991]]

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

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

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

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

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

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

[[Page 77992]]

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

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

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

B. Small Entities

    Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have 
considered whether this proposed rule would have a significant economic 
impact on a substantial number of small entities. The term ``small 
entities'' comprises small businesses, not-for-profit organizations 
that are independently

[[Page 77993]]

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

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

C. Assistance for Small Entities

    Under section 213(a) of the Small Business Regulatory Enforcement 
Fairness Act of 1996 (Pub. L. 104-121), we want to assist small 
entities in understanding this proposed rule so that they can better 
evaluate its effects on them and participate in the rulemaking. If the 
proposed rule would affect your small business, organization, or 
governmental jurisdiction and you have questions concerning its 
provisions or options for compliance, please consult LT Mason Wilcox, 
Cargo and Facilities Division (CG-FAC-2), Coast Guard; telephone 202-
372-1123, email [email protected]. The Coast Guard will not 
retaliate against small entities that question or complain about this 
rule or any policy or action of the Coast Guard.
    Small businesses may send comments on the actions of Federal 
employees who enforce, or otherwise determine compliance with, Federal 
regulations to the Small Business and Agriculture Regulatory 
Enforcement Ombudsman and the Regional Small Business Regulatory 
Fairness Boards. The Ombudsman evaluates these actions annually and 
rates each agency's responsiveness to small business. If you wish to 
comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR 
(1-888-734-3247).

D. Collection of Information

    This proposed rule would call for a collection of information under 
the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520). As defined 
in 5 CFR 1320.3(c), ``collection of information'' comprises reporting, 
recordkeeping, monitoring, posting, labeling, and other, similar 
actions. The title and description of the information collections, a 
description of those who must collect the information, and an estimate 
of the total annual burden follow. The estimate covers the time for 
reviewing instructions, searching existing sources of data, gathering 
and maintaining the data needed, and completing and reviewing the 
collection.
    Under the provisions of this proposed rule, the affected facilities 
and vessels would be required to update their FSPs to include 
provisions of seafarers' access. This requirement would be added to an 
existing approved collection covered by Office of Management and Budget 
(OMB) control number 1625-0077.
    Title: Security Plans for Ports, Vessels, Facilities, and Outer 
Continental Shelf Facilities and other Security-Related Requirements
    OMB Control Number: 1625-0077.
    Summary of the Collection of Information: This proposed rule would 
modify an existing collection of information, in proposed Sec. Sec.  
105.200 through 105.405, for owners and operators of certain MTSA-
regulated facilities. MTSA-regulated facilities would need to include a 
description of seafarers' access in their FSPs. These requirements 
would require a one-time change in previously approved OMB Collection 
1625-0077.
    Proposed Use of Information: The Coast Guard would use this 
information to determine whether a facility is providing adequate 
seafarers' access provisions between the vessel and the facility gate.
    Description of the Respondents: The respondents are owners and 
operators of

[[Page 77994]]

MTSA-regulated facilities regulated by the Coast Guard under 33 CFR 
Chapter I, subchapter H.
    Number of Respondents: The adjusted number of respondents is 10,158 
for vessels, 5,234 for facilities, and 56 for Outer Continental Shelf 
facilities. Of these 5,234 facilities, 2,498 would be required to 
modify their existing FSPs.
    Frequency of Response: There will be a one-time response for all 
2,498 respondents. The FSP would need to be updated within 10 months 
after publication of the final rule.
    Burden of Response: This includes a one-time, 14,988-hour burden. 
The burden resulting from this NPRM is 6 hours per respondent.
    Estimate of Total Annual Burden: The estimated implementation 
period burden for facilities is 6 hours per FSP amendment. Since 2,498 
facilities would be required to modify their existing FSPs, the total 
burden would be 14,988 hours = (2,498 facilities * 6 hours).
    The current burden listed in this collection of information is 
1,108,043 hours. The new burden, as a result of this proposed 
rulemaking, would be 1,123,031 hours (1,108,043 + 14,988).
    As required by the Paperwork Reduction Act of 1995 (44 U.S.C. 
3507(d)), we will submit a copy of this proposed rule to the OMB for 
review of the collection of information.
    We ask for public comment on the proposed collection of information 
to help us determine how useful the information is; whether it can help 
us perform our functions better; whether it is readily available 
elsewhere; how accurate our estimate of the burden of collection is; 
how valid our methods for determining burden are; how we can improve 
the quality, usefulness, and clarity of the information; and how we can 
minimize the burden of collection.
    If you submit comments on the collection of information, submit 
them both to OIRA and to the Docket Management Facility where indicated 
under ADDRESSES, by the date under DATES.
    You need not respond to a collection of information unless it 
displays a currently valid control number from OMB. Before the Coast 
Guard could enforce the collection of information requirements in this 
proposed rule, OMB would need to approve the Coast Guard's request to 
collect this information.

E. Federalism

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

F. Unfunded Mandates Reform Act

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

G. Taking of Private Property

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

H. Civil Justice Reform

    This proposed rule meets applicable standards in sections 3(a) and 
3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize 
litigation, eliminate ambiguity, and reduce burden.

I. Protection of Children

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

J. Indian Tribal Governments

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

K. Energy Effects

    We have analyzed this proposed rule under Executive Order 13211, 
Actions Concerning Regulations That Significantly Affect Energy Supply, 
Distribution, or Use. We have determined that it is not a ``significant 
energy action'' under that order. Though it is a ``significant 
regulatory action'' under Executive Order 12866, it is not likely to 
have a significant adverse effect on the supply, distribution, or use 
of energy. The Administrator of the Office of Information and 
Regulatory Affairs has not designated it as a significant energy 
action. Therefore, it does not require a Statement of Energy Effects 
under Executive Order 13211.

[[Page 77995]]

L. Technical Standards

    The National Technology Transfer and Advancement Act (NTTAA) (15 
U.S.C. 272 note) directs agencies to use voluntary consensus standards 
in their regulatory activities unless the agency provides Congress, 
through the Office of Management and Budget, with an explanation of why 
using these standards would be inconsistent with applicable law or 
otherwise impractical. Voluntary consensus standards are technical 
standards (e.g., specifications of materials, performance, design, or 
operation; test methods; sampling procedures; and related management 
systems practices) that are developed or adopted by voluntary consensus 
standards bodies.
    This proposed rule does not use technical standards. Therefore, we 
did not consider the use of voluntary consensus standards.

M. Environment

    We have analyzed this proposed rule under Department of Homeland 
Security Management Directive 023-01 and Commandant Instruction 
M16475.lD, which guide the Coast Guard in complying with the National 
Environmental Policy Act of 1969 (NEPA)(42 U.S.C. 4321-4370f), and have 
made a preliminary determination that this action is one of a category 
of actions that do not individually or cumulatively have a significant 
effect on the human environment. A preliminary environmental analysis 
checklist supporting this determination is available in the docket 
where indicated under the ``Public Participation and Request for 
Comments'' section of this preamble. This rule is likely to be 
categorically excluded under section 2.B.2, figure 2-1, paragraph 
(34)(a) and (c) of the Instruction and 6(a) of the final agency policy 
published at 67 FR 48243 on July 23, 2002. This rule involves 
regulations which are editorial or procedural, regulations concerning 
training, qualifying, licensing, and disciplining of maritime personnel 
and regulations concerning vessel operation safety standards. We seek 
any comments or information that may lead to the discovery of a 
significant environmental impact from this proposed rule.

List of Subjects

33 CFR Part 101

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

33 CFR Part 105

    Maritime security, Reporting and recordkeeping requirements, 
Security measures.

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

33 CFR--Navigation and Navigable Waters

PART 101--MARITIME SECURITY: GENERAL

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

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

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


Sec.  101.112  Federalism.

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

PART 105--MARITIME SECURITY: FACILITIES

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

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


Sec.  105.200  [Amended]

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


Sec.  105.237  System for seafarers' access.

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

[[Page 77996]]

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


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

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

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