[Federal Register Volume 83, Number 53 (Monday, March 19, 2018)]
[Rules and Regulations]
[Pages 12086-12104]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-05394]



[[Page 12085]]

Vol. 83

Monday,

No. 53

March 19, 2018

Part II





Department of Homeland Security





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Coast Guard





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33 CFR Parts 101, 104, 105, et al.





Consolidated Cruise Ship Security Regulations; Final Rule

  Federal Register / Vol. 83 , No. 53 / Monday, March 19, 2018 / Rules 
and Regulations  

[[Page 12086]]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Parts 101, 104, 105, 120, and 128

[Docket No. USCG-2006-23846]
RIN 1625-AB30


Consolidated Cruise Ship Security Regulations

AGENCY: Coast Guard, DHS.

ACTION: Final rule.

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SUMMARY: The Coast Guard is issuing a final rule to eliminate outdated 
regulations that imposed unnecessary screening requirements on cruise 
ships and cruise ship terminals. This final rule replaces these 
outdated regulations with simpler, consolidated regulations that 
provide efficient and clear requirements for the screening of baggage, 
personal items, and persons on a cruise ship. This final rule will 
enhance the security of cruise ship terminals and allow terminal 
operators to use effective screening mechanisms with minimal impact to 
business operations.

DATES: This final rule is effective April 18, 2018.

ADDRESSES: Documents mentioned in this preamble are part of docket 
USCG-2006-23846. To view public comments or documents mentioned in this 
preamble as being available in the docket, go to http://www.regulations.gov, type the docket number in the ``SEARCH'' box and 
click ``SEARCH.'' Click on Open Docket Folder on the line associated 
with this rulemaking.

FOR FURTHER INFORMATION CONTACT: If you have questions on this rule, 
call or email Lieutenant Commander Kevin McDonald, Inspections and 
Compliance Directorate, Office of Port and Facility Compliance, Cargo 
and Facilities Division (CG-FAC-2), Coast Guard; telephone 202-372-
1168, email [email protected].

SUPPLEMENTARY INFORMATION: 

Table of Contents

I. Abbreviations
II. Executive Summary
    A. Summary of NPRM and Overview of the Final Rule
    B. Summary of Costs and Benefits
III. Basis and Purpose and Regulatory History
IV. Discussion of Comments and Changes
    A. Requirements for Cruise Ship Terminals vs. Ports of Call
    B. Legal Responsibility for Terminal Screening Program
    C. Screening Procedures and Requirements
    D. Prohibited Items List (PIL)
    E. Regulatory Impact Analysis and Regulatory Flexibility 
Analysis
    F. Other Comments
V. 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. Abbreviations

AAPA American Association of Port Authorities
CFR Code of Federal Regulations
CLIA Cruise Lines International Association
COTP Captain of the Port
DoS Declaration of Security
FSO Facility Security Officer
FSP Facility Security Plan
FR Federal Register
MARSEC Maritime Security
MISLE Marine Information for Safety and Law Enforcement
MTSA Maritime Transportation Security Act of 2002
NAICS North American Industry Classification System
NPRM Notice of proposed rulemaking
OMB Office of Management and Budget
PIL Prohibited Items List
QPL Qualified Product List
Sec.  Section symbol
SSI Sensitive Security Information
TSA Transportation Security Administration
TSI Transportation Security Incident
TSP Terminal Screening Program
TWIC Transportation Worker Identification Credential
U.S.C. United States Code
VSP Vessel Security Plan
VSL Value of Statistical Life

II. Executive Summary

    The Coast Guard is amending its regulations on cruise ship terminal 
security by simplifying and removing outdated regulations located in 33 
CFR parts 120 and 128. These parts prescribe requirements for passenger 
vessels and passenger terminals to develop and implement vessel 
security plans and terminal security plans. However, the enactment of 
the Maritime Transportation Security Act of 2002 (MTSA) largely 
superseded the requirements located in 33 CFR parts 120 and 128 with 
the requirements in 33 CFR Subchapter H, parts 104 and 105. As a 
result, parts 120 and 128 are now used only for their terminal security 
plan implementation requirements.
    The final rule will improve regulatory clarity and efficiency by 
replacing the terminal screening procedures from parts 120 and 128 with 
updated terminal screening procedures laid out in the current MTSA 
regulations located in Subchapter H. The primary purpose of these 
changes is to provide more efficient and clear requirements for the 
screening of all baggage, personal items, and persons--including 
passengers, crew, and visitors--intended for carriage on a cruise ship, 
and enhance the security of cruise ship terminals, while minimizing 
disruptions to business operations. As a result, the changes will allow 
terminals an appropriate degree of clarity that accommodates and is 
consistent with their varying sizes and operations.
    The final rule will also both clarify and simplify requirements to 
ensure all facilities maintain screening measures that meet a minimum 
standard. For example, while the terminal security plan requirements in 
part 128 merely required that owners or operators of a terminal 
facility ``[p]rovide adequate security training to employees of the 
terminal,'' \1\ the new regulations both incorporate the existing MTSA 
training requirements located in section 105.210, as well as enumerate 
several terminal-specific items that clarify what knowledge base is 
needed to adequately ensure security.
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    \1\ 33 CFR 128.300(b)(4).
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    Therefore, the final rule will establish clear, simplified, 
enforceable standards, consolidate the terminal security regulations in 
the Code of Federal Regulations, and ensure a consistent, minimum layer 
of security at cruise ship terminals throughout the United States with 
a minimal impact to business operations.
    We estimate that this rule will affect 137 MTSA-regulated 
facilities, 131 cruise ships, and 23 cruise line companies. This 
rulemaking will have a one-time administrative cost for the development 
of a terminal screening program and for updating the FSP for the 
prohibited items list. We estimate the one-time cost for these updates 
to be about $158,660 (undiscounted).

A. Summary of NPRM

    In the notice of proposed rulemaking (NPRM) (79 FR 73255, December 
10, 2014), the Coast Guard proposed several changes to existing 
regulations on the screening of persons and their baggage at cruise 
ship terminals. The discussion below summarizes the proposed 
requirements. A more detailed discussion of the requirements can be 
found in the NPRM.
    First, we proposed that cruise ship terminals revise their Facility 
Security

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Plans (FSPs) to include a consolidated section on terminal screening, 
called the terminal screening program (TSP). Additionally, we proposed 
several requirements for TSPs, as laid out in proposed subpart E of 33 
CFR 105 (Sec. Sec.  105.500 through 105.550), that would impose clearer 
requirements on how a screening program should operate.
    The proposed specific requirements of the TSP were minimal. Many of 
the requirements in subpart E are already contained in a terminal's 
existing TSP, as mandated by existing 33 CFR part 128, although these 
items are discussed in greater detail in the new subpart E. 
Additionally, the proposed subpart E included some new training and 
qualification requirements for screeners (such as familiarity with 
relevant portions of the TSP and FSP), requirements for screeners to 
participate in drills, and requirements for how screening equipment 
should be used if the screener chose to use it. In our analysis of 
cruise ship TSPs, we estimated that most, if not all, cruise ship 
terminals would already comply with the vast majority of the 
requirements in subpart E, and that the costs of compliance with the 
proposed rule would be largely limited to revising cruise ship terminal 
FSPs to meet the format requirements of subpart E. See the preliminary 
regulatory analysis (available in the docket under ``Supporting 
Documents'' at USCG-2006-23846-0029) for a more detailed discussion of 
the costs of the proposed rule.
    Second, the Coast Guard proposed that cruise ship operators also 
meet certain new requirements in proposed Sec.  104.295. Specifically, 
we proposed that cruise ship owners or operators be required to ensure 
that screening is performed in accordance with the screener 
qualification (new Sec.  105.530), screener training (new Sec.  
105.535), and screening equipment (new Sec.  105.545) provisions of 
Subpart E regardless of whether the screening is performed by a cruise 
ship terminal. Existing Sec.  104.295 makes cruise ship owners and 
operators responsible for ensuring pre-embarkation screening, but does 
not refer to Subpart E. We note that the screening equipment 
regulations proposed in Sec.  105.545 did not require the use of 
additional screening equipment, but only to regulate the way certain 
equipment would be used and maintained if the screener chose to employ 
it.
    Third, the Coast Guard proposed to develop a Prohibited Items List 
(PIL) similar but not identical to that used by the Transportation 
Security Administration (TSA) at airports, which would define certain 
items that could not be brought on board a cruise ship by passengers on 
their persons or in checked luggage. Proposed Sec.  105.515 required 
this PIL be posted at each screening location. In the NPRM, we 
explained that prohibiting the items listed on the PIL was not intended 
to be a new requirement, but an interpretation of the existing 
requirement, located in 33 CFR 104.295(a) and 105.290(a), that cruise 
ship and cruise ship terminal operators ``[s]creen all persons, 
baggage, and personal effects for dangerous substances and devices.'' 
Considering that the definition of ``dangerous substances and devices'' 
in 33 CFR 101.105 means ``any material, substance, or item that 
reasonably has the potential to cause a transportation security 
incident [TSI]'', we proposed to publish the PIL as an interpretive 
document indicating which items the Coast Guard believes are 
``dangerous substances and devices'' at all times, while other items 
may or may not be considered such at the FSO's discretion. We noted 
that cruise ship operators were free to prohibit additional items on 
their vessels if they believed they were dangerous, or for any other 
reason, and noted that most cruise lines already advertised lists of 
prohibited items that are extremely similar to, if not more extensive 
than, the proposed PIL.
    Finally, the Coast Guard proposed to remove 33 CFR parts 120 and 
128 because provisions in those parts requiring security officers and 
security plans or programs for cruise ships and cruise ship terminals 
would be redundant with the provisions in 33 CFR subchapter H. We also 
proposed removing section 120.220, concerning the reporting of unlawful 
acts, as it is obsolete, and existing law enforcement protocols require 
members of the Cruise Lines International Association (CLIA) to report 
incidents involving serious violations of U.S. law to the nearest 
Federal Bureau of Investigation field office as soon as possible.

B. Overview of the Final Rule

    The final rule amends the maritime security regulations, found in 
title 33 of the Code of Federal Regulations (33 CFR) subchapter H 
(parts 101 through 105), relating to TSPs in existing FSPs at cruise 
ship terminals within the United States and its territories. The final 
rule builds upon existing facility security requirements in 33 CFR part 
105, which implements the Maritime Transportation Security Act of 2002 
(MTSA), Public Law 107-295, 116 Stat. 2064 (November 25, 2002), 
codified at 46 U.S.C. Chapter 701.
    We note that this rule only addresses screening procedures for 
persons boarding the vessel and their baggage. This rule does not 
address the screening of vessel stores, bunkers, or cargo. Similarly, 
it does not affect what items may be brought onto a cruise ship by the 
cruise ship operator, including items that passengers may check for 
secure storage with the cruise operator outside of their baggage. 
Requirements for security measures for the delivery of vessel stores, 
bunkers, and cargo exist and are found in 33 CFR 104.275, 104.280, 
105.265, and 105.270.
    This final rule also makes changes to the list of prohibited items 
proposed in the NPRM. The Coast Guard announces in this final rule the 
availability of the revised PIL in the regulatory docket for this 
rulemaking and on the Coast Guard's website at https://homeport.uscg.mil.
    This rule does not include regulations that may be required 
pursuant to the Cruise Vessel Security and Safety Act of 2010 (CVSSA), 
Public Law 111-207 (July 27, 2010) (See RIN 1625-AB91) (CVSSA). 
Although this rule and the CVSSA are both concerned with cruise ship 
security generally, this rule consolidates and updates pre-boarding 
screening requirements while the CVSSA prescribes requirements in other 
areas, such as cruise ship design, providing information to passengers, 
maintaining medications and medical staff on board, crime reporting, 
crew access to passenger staterooms, and crime scene preservation 
training.

C. Summary of Costs and Benefits

    We expect minimal cost impacts to industry and the public from this 
rulemaking since it incorporates current industry practices. We 
estimate that this rule will affect 137 MTSA-regulated facilities, 131 
cruise ships, and 23 cruise line companies. While this rulemaking 
streamlines and clarifies the existing requirements regarding passenger 
screening, there will be a one-time administrative cost for the 
development of a terminal screening program and for updating the FSP 
for the prohibited items list. We estimate the one-time cost for these 
updates to be about $158,660 (undiscounted).

III. Basis and Purpose and Regulatory History

    The Ports and Waterways Safety Act (PWSA) (33 U.S.C. 1221 et seq.), 
authorizes the Secretary of the department in which the Coast Guard is 
operating to take certain actions to advance port, harbor, and coastal 
facility security. The Secretary is authorized under 33 U.S.C. 1231 to

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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)).
    On December 10, 2014, the Coast Guard published a notice of 
proposed rulemaking (NPRM) titled ``Consolidated Cruise Ship Security 
Regulations'' in the Federal Register (79 FR 73255). As described in 
more detail in the section of the NPRM entitled ``Development of 33 CFR 
Subchapter H'', the purpose of this rule was to require cruise ship 
terminal Facility Security Plans (FSPs) to follow an organized format 
that includes more aspects of screening, and to develop a Prohibited 
Items List for use when conducting screening of all persons, baggage, 
and personal effects at the terminal. This list would reduce 
uncertainty in the industry and the public about what is prohibited and 
what is not, and would help cruise ship facilities better implement the 
screening requirement in 33 CFR 105.290(a).
    We provided an initial 3-month comment period for the proposed rule 
that was to close on March 10, 2015. However, on April 1, 2015, we 
published a Notice in the Federal Register (80 FR 17372) because we 
omitted from the docket the accompanying Regulatory Analysis. We 
reopened the comment period for a period of 60 days, until June 1, 2015 
to allow commenters to read and comment on the detailed Regulatory 
Analysis if desired. We received 31 written submissions. Additionally, 
we held a public meeting at the Port Everglades Cruise Terminal in 
Hollywood, Florida on February 9, 2015, where 4 persons made oral 
statements.\2\
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    \2\ This meeting was announced in the Federal Register on 
January 21, 2015 (80 FR 2839).
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IV. Discussion of Comments and Changes

    Comments generally fell into one of five overall categories, with 
the most prominent being questions related to requirements for small 
ports of call and the legal responsibilities of cruise ship terminals. 
We also received numerous comments related to screening requirements in 
the TSP, breaches of security, and the prohibited items list. In 
response to those comments, the Coast Guard has clarified and altered 
the final rule in a way that we believe will be less disruptive to the 
cruise ship experience, while still maintaining strong overall levels 
of security. In the subsections below, we summarize the comments 
received and discuss our specific responses.

A. Requirements for Cruise Ship Terminals vs. Ports of Call

    The Coast Guard received numerous comments regarding the imposition 
of screening requirements on ports of call. As described in the NPRM 
proposed definition, ports of call are interim destinations where 
cruise ship passengers disembark the ship for shore excursions. We note 
that some commenters used the term ``port of call'' to describe any 
interim destination by a cruise ship, while others seemed to limit the 
term to facilities where a cruise ship would be serviced by tenders in 
lieu of docking directly.\3\ Unlike at cruise ship terminals, 
passengers do not generally carry much if any baggage at ports of call, 
leaving most belongings on the cruise ship. As far as security measures 
go, security screening is rarely carried out at ports of call, and 
cruise ships generally check passengers when they return to the cruise 
ship to ensure that they have not brought back prohibited items from 
their shore excursions. The security arrangements made between a cruise 
ship and a port of call are generally implemented through a Declaration 
of Security (DoS), which details the respective security arrangements 
between the parties.
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    \3\ In the NPRM discussion, we stated ``[d]uring visits at 
several cruise ship terminals, cruise ship embarkation ports, and 
ports of call, the Coast Guard witnessed various types of screening 
activities.'' The discrete listings of ``cruise ship terminals'' and 
``ports of call'' indicated that cruise ship terminals and ports of 
call were separate. In the next sentence, however, we stated, 
``[m]ost terminals use metal detectors and x-ray systems. . . and 
other terminals, normally ports of call, screen by hand,'' thus 
seeming to indicate that ports of call are a subset of cruise ship 
terminals (79 FR 73259). This inadvertent inconsistency may have 
contributed to commenters' misunderstanding the definition of ports 
of call.
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    While the NPRM proposals were not specifically targeted at ports of 
call, commenters were concerned that ports of call were included in the 
proposed definition of ``cruise ship terminal[s]'', which was defined 
as ``any portion of a facility that receives a cruise ship or its 
tenders to embark or disembark passengers or crew.'' This definition, 
especially with the inclusion of the phrase ``or its tenders,'' meant 
that the scope of this rule would be vastly expanded beyond what is 
traditionally meant by a cruise ship facility, and would impose 
security screening requirements on owners and operators of ports of 
call that had previous delegated screening responsibilities to cruise 
ship operators.
    The Coast Guard received a large number of comments from the 
operators of ports of call questioning many aspects of the proposed 
regulations. Many of these facility operators were concerned that the 
proposed cruise ship terminal requirements were inappropriate for use 
at ports of call that do not receive cruise ships, and that 
implementing these requirements would have substantial costs far above 
and beyond the modest expenditures presented in the preliminary 
regulatory analysis. Furthermore, operators of these ports of call 
suggested that implementing the cruise ship terminal security 
procedures would be redundant, because passengers are already screened 
when they return to the cruise ship.
    To generally summarize, commenters on this issue believed that the 
Coast Guard was proposing to require that all ports of call conduct 
screening of passengers for prohibited items at the facility before 
passengers could re-board cruise ships. This would run contrary to 
existing arrangements, where screening is done on board the ship by 
cruise vessel security personnel.\4\ Such would also likely entail 
significant costs to many facility operators, who would have to build 
out facilities and hire personnel in order to conduct screening, which 
might be duplicative of screening conducted on the vessel. As an 
overall response, the Coast Guard notes that this interpretation was 
based on a misunderstanding of the proposal. We did not intend to imply 
that terminal screening requirements would be expanded to ports of 
call, and we did not intend that ports of call would have specific 
screening requirements imposed by this rule.
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    \4\ While we note that it would be legal for a screening to be 
conducted at the facility, rather than on the cruise ship, if 
specified in the DoS, we are not aware of any situations in which 
this is done.
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    In response to these comments, the Coast Guard has made several 
changes that we hope improve the clarity of the regulatory text. We 
have updated the definitions of ``cruise ship terminal'' and ``ports of 
call'' to clearly delineate between the two, and have included a new 
section 105.292 to make clear the specific responsibilities on ports of 
call. We have also added a new paragraph (a)(2) to Sec.  104.295 to 
remove confusion about screening requirements at ports of call, and to 
make clear that arrangements where screening is conducted onboard the 
vessel do not need to be duplicated at the facility. We believe that by 
making these changes, we have addressed the concerns raised by 
commenters on this issue.
    Below, we address the specific comments received on this issue, as

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well as the Coast Guard's responses to those issues. Given that many 
comments shared many themes as described above, we do not address each 
individual remark, but we do respond to specific comments and issues as 
they present nuance or unique questions on this topic.
    The proposed rule was intended only to be applied to cruise ship 
terminals and not to ports of call. In the NPRM, we estimated the 
proposed rule would affect 23 cruise line companies, each of which 
maintains an FSP for each terminal that they use. Therefore, we stated 
the following: ``[W]e estimate that the proposed rule would require 
that FSPs at 137 MTSA-regulated facilities be updated. The proposed 
rule would require these facilities to add TSP chapters to their 
existing FSPs. This rule would also require owners and operators of 
cruise ship terminals to add a Prohibited Items List to current FSPs.'' 
79 FR 73266. The Preliminary Regulatory Analysis (available in the 
docket at USCG-2006-23846-0029), which accompanied the NPRM, provided 
an explanation of what facilities would be affected by the rule. As 
stated above, the Coast Guard estimated that 137 facilities would be 
affected by this rule (see the Regulatory Planning and Review section 
below), which was based on the number of MTSA-regulated waterfront 
facilities that receive cruise vessels according to the Coast Guard 
Marine Information for Safety and Law Enforcement (MISLE) database (as 
of February 2009).
    However, based on the responses in comments, it appears that this 
analysis may not have been considered by commenters regarding 
potentially affected facilities due to the proposed definition of 
``cruise ship terminal.'' While the term ``cruise ship terminal'' is 
not explicitly defined under current regulations, if a cruise ship does 
not directly service a facility, but instead passengers are transported 
to and from the facility via small vessels known as tenders, then the 
Coast Guard does not consider the facility to be a ``cruise ship 
terminal.'' \5\ In the proposed rule, commenters noted that this class 
of facilities would be swept into the category of cruise ship 
terminals, thus making them subject to both the existing and proposed 
requirements for cruise ship terminals under this rule.
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    \5\ We note that while there is no current definition of 
``cruise ship terminal,'' the existing definition of ``passenger 
terminal,'' located in 33 CFR 120.110, is ``any structure used for 
the assembling, processing, embarking, or disembarking of passengers 
or baggage for vessels subject to [part 120]. It includes piers, 
wharves, and similar structures to which a vessel may be secured; 
land and water under or in immediate proximity to these structures; 
buildings on or contiguous to these structures; and equipment and 
materials on or in these structures.''
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    A comment from the United States Virgin Islands (USVI) summed up 
this general concern, expressing strong concern that the proposed rule 
would eliminate the category of a ``Port of Call'' and force every 
destination at which a cruise ship calls to be considered a cruise ship 
terminal, ``with requirements for an on-shore screening facility at 
every location where passengers embark or disembark, rather than allow 
the screening to be conducted as passengers board at and by the ship.'' 
\6\ The commenter suggested that the proposed rule would require 
installation and operation of screening facilities on the docks or 
shore, which would be unnecessary due to the existing screening done as 
the passengers board the ship. The commenter also provided several 
descriptions of various small facilities that receive cruise ship 
tenders, describing how they could incur substantial costs if they were 
forced to construct costly screening operation centers. We believe that 
the changes made to the regulatory text address these concerns by 
making clear that these ports of call would not be subject to the 
requirements for cruise ship terminals.
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    \6\ United States Virgin Islands, Office of the Governor, 
comment, USCG-2006-23846-0022, p.2.
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    Many commenters, including many represented by the Passenger Vessel 
Association (PVA), also urged the Coast Guard to reconsider whether 
facilities that only receive cruise ship tenders should be defined as 
``cruise ship terminals'' and be made subject to the associated 
regulations in 33 CFR 105.290. The PVA offered several examples of 
small facilities that receive cruise ship tenders only that would be 
ill-suited to screen passengers for dangerous substances and devices on 
their premises. The PVA instead suggested that ``[a] `port of call' 
facility that simply receives cruise ship tenders, but not the cruise 
ship itself, should not be required to install and operate the 
screening equipment. That responsibility should lie with the cruise 
ship operator, and the rule should permit it to be performed at any 
location prior to boarding the cruise ship, not necessarily on the dock 
or pier.'' \7 8\
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    \7\ Passenger Vessel Association comment, available in the 
docket at USCG-2006-23846-0025, p.3.
    \8\ We note that, contrary to the text of the comment, the 
proposed rule would not have required all cruise ship facilities to 
install and operate screening equipment, see proposed Sec. Sec.  
105.545 and 105.550.
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    Additional commenters raised PVA's concerns in the context of their 
specific situations. One commenter, a small seasonal company 
specializing in whale watch excursions, argued that ``tender ports 
should not be considered `cruise ship terminals','' and that the 
current rules for tender ports provide effective security.\9\ Noting 
that there is usually no building to store x-ray machines and other 
security apparatuses, the commenter states that the facility or ship 
generally provides simply a tent for passengers to stand under while 
checking IDs and bags. The commenter also noted that the cruise ships 
have x-ray machines and metal detectors at the boarding areas on board, 
thus indicating that imposing screening requirements on the facility 
would be both duplicative and expensive. Another commenter, from the 
city of Ketchikan, Alaska, suggested that there is no centralized 
location for screening in a facility that extends over a mile of 
downtown waterfront.\10\
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    \9\ USCG-2006-23846-0016, p.1.
    \10\ USCG-2006-23846-0026.
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    Other commenters raised similar concerns, but did not limit 
themselves only to ports of call that serviced cruise ship tenders 
exclusively. The American Association of Port Authorities simply stated 
that many facilities that handle port of call visits from cruise ships 
have little or no infrastructure in place to conduct screenings, and 
that the rule must be rewritten so as to not impose significant 
economic burdens on those facilities.\11\ The Cruise Line Agencies of 
Alaska stated that while there are only two cruise terminal facilities 
in the State, there are 25 ports of call, which have little or no 
accompanying shore-side terminal buildings.\12\ This commenter noted 
that they currently conduct screening in coordination with the vessel 
moored at the facility in accordance with existing 33 CFR 105.290. The 
commenter argued that to ``construct the type of facilities 
referenced'' would cost between $2 and $3 million per facility, 
although they did not specify exactly what that would entail.\13\ 
Another commenter, a port facility security officer in Alaska, echoed 
similar concerns, stating that at his port of call facility the docks 
are piers without structures on them, and that building such facilities 
would present an economic hardship.\14\
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    \11\ USCG-2006-23846-0013.
    \12\ USCG-2006-23846-0019.
    \13\ USCG-2006-23846-0019, p.2.
    \14\ USCG-2006-23846-0018.
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    As indicated above, we have revised Sec.  104.295 to make clear 
that arrangements where screening is

[[Page 12090]]

conducted onboard the vessel do not need to be duplicated at the 
facility.\15\ We note that with regard to the Alaskan ports of call 
referenced by these commenters, the facilities do not appear to be 
serviced by tenders, but the cruise ship docks at the facility. Thus, 
the mere retraction of the phrase ``or its tenders'' from the proposed 
definition of ``cruise ship terminal'' would not appear to alleviate 
their concerns. Thus, in the final rule text, while we are leaving the 
phrase ``or its tenders'' in the definition of cruise ship terminals, 
we have clarified in 104.295 that cruise ship terminal regulations do 
not apply to ports of call.
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    \15\ Or, in a hypothetical situation in which screening was 
performed at the facility, it would not need to be duplicated on the 
ship.
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    One commenter stated that proposed changes to the screening method 
in Sec.  105.290(a) would impose significant costs on a small 
facility.\16\ We believe that the commenter's focus on the proposed 
language in Sec.  105.290 is misplaced, and that this comment relates 
more appropriately to the proposed change in the definition of ``cruise 
ship terminal.'' Specifically, this commenter may not have been subject 
to any cruise ship terminal requirements previously (as it would have 
been considered a port of call), and had the proposed change been 
finalized, would have become subject to Sec.  105.290--along with other 
cruise ship terminal requirements--as a result of the proposed change 
to the definition.
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    \16\ USCG-2006-23846-0014, p.1-2.
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    The specific change to Sec.  105.290(a) proposed to add the phrase 
``in accordance with the requirements of subpart E of this part'' to 
the existing requirement that facilities ``Screen all persons, baggage, 
and personal effects for dangerous substances and devices.'' The 
commenter stated that at Maritime Security (MARSEC) Level 1, they 
perform random checks on the docks, and that the new rule would require 
that 100% of all passengers and crew would have to be checked before 
entering the docks. The commenter stated that this new requirement 
would be both costly and redundant. The commenter also stated that 
``the new rule stipulates that 100% of all passengers and crew would be 
checked before putting a foot on our docks, before entering our 
facility [sic].''
    We have several concerns with this comment. To begin, we note that 
both the existing and proposed regulatory text required that ``all'' 
persons be screened, so it appears that, if a facility was subject to 
the requirements of 33 CFR 105.290, random screenings would be a 
violation of both existing and proposed regulations. The new 
regulations add no additional language that could be interpreted as 
requiring more passengers to be screened than under the existing 
language. The commenter also states that the rule would dramatically 
increase costs--and cites the cost of screening all of the passengers 
and crew as an increased cost of the proposed regulation. Again, both 
the existing and proposed regulations require that facilities subject 
to Sec.  105.290 require screening of all passengers, so this rule is 
not imposing new costs. Finally, the commenter states that all 
passengers would need to be screened before entering the facility, but 
we note that neither Sec.  105.290 nor the proposed rule would require 
this (no citation was given in the comment).
    Several commenters were concerned about the definition of ``cruise 
ship terminal'' pertaining to screening locations. The commenters 
argued that the NPRM proposed several changes that, combined, could be 
construed to require the physical location of screening to be located 
only at certain points prior to boarding a cruise ship. Specifically, 
in Sec.  104.295(a)(1) (``Additional Requirements--Cruise Ships''), we 
proposed to add the phrase ``at the cruise ship terminal, or in the 
absence of a cruise ship terminal, immediately prior to embarking a 
cruise ship'' to the requirement that the operator of a cruise ship 
ensure the screening of all persons, baggage, and personal effects for 
dangerous substances and devices.
    The preamble discussion of Sec.  104.295 did not discuss any 
requirements for the physical location of screening, and stated that it 
was only adding language requiring cruise ship owners or operators to 
ensure screening is performed in accordance with the updated screening 
requirements. The NPRM preamble also stated that the Coast Guard 
anticipated that they would continue to coordinate screening with the 
cruise ship terminals.
    Notwithstanding the preamble discussion, several commenters 
expressed concern, related to the language in Sec.  104.295(a)(1) and 
to the proposed definition of ``cruise ship terminal,'' that the 
changes in the proposed rule would force changes to the screening 
location that could increase costs, create duplication, and possibly 
harm security. One commenter stated that the requirement that 
passengers be screened at ports of call was duplicative, as they must 
also be screened upon boarding the cruise ship as specified in the 
ship's VSP.\17\ A second commenter noted that the proposed language in 
Sec.  104.295(a)(1), particularly the phrase ``in the absence of a 
terminal,'' conflicts with the new definition of ``cruise ship 
terminal,'' which would include any facility that receives cruise ships 
or their tenders.\18\
---------------------------------------------------------------------------

    \17\ USCG-2006-23846-0014, p.2.
    \18\ USCG-2006-23846-0027, p.1.
---------------------------------------------------------------------------

    We agree with the overall assertion made by the commenters. Reading 
the proposed expansive definition of cruise ship terminal, along with 
the phrasing of Sec.  104.295(a)(1) which, in the proposed text, would 
have required screening ``at the cruise ship terminal, or in the 
absence of a terminal, immediately prior to embarking on a cruise 
ship'', would create duplicative screening requirements. We also agree 
that the proposed definition of ``cruise ship terminal'' would make the 
phrase ``in the absence of a terminal'' (in proposed Sec.  
104.295(a)(1)) a logical impossibility. Both of these items are 
addressed by the changes to the definition of cruise ship terminal and 
the changes to Sec.  104.295(a)(1) in this final rule. As stated at the 
start of this section, the new definition of cruise ship terminal 
limits the definition to facilities to the point where the cruise 
vessel begins or ends its voyage, thus excluding ports of call, where 
security screening is conducted on the vessel (or at a facility, if 
detailed in a DoS) pursuant to the requirements in Sec.  104.265(f)-
(g), as detailed in its VSP. Similarly, the new text in Sec.  
104.295(a)(1) replaces the wording that would have required screening 
``at the cruise ship terminal, or in the absence of a terminal, 
immediately prior to embarking a cruise ship'' with the phrase ``prior 
to entering the sterile (or secure) portion of a cruise ship''. These 
changes allow the existing arrangement, where passengers returning to a 
cruise ship at a port of call, may be screened upon entering the 
vessel, to continue.
    However, we disagree with an assertion by the second commenter that 
``docks'' should not be considered ``facilities.'' This commenter 
stated that some cruise ships routinely use ports that simply have 
docks that are used for port calls, which should not be considered 
''terminals'' or even ``facilities''. The commenter also states that 
these ports do not have the room or infrastructure to support screening 
areas, but that the cruise ships visiting these ports do, and currently 
screen all passengers. We note that we would consider a dock where 
cruise ship passengers embark or disembark to be a ``facility'' based 
upon the definition of

[[Page 12091]]

``facility'' in 33 CFR 101.105.\19\ To be more specific regarding this 
particular dock, the Coast Guard would consider it a ``port of call'' 
based on the fact that cruise ships make a scheduled stop at this 
facility in the course of their voyage.
---------------------------------------------------------------------------

    \19\ Facility means any structure or facility of any kind 
located in, on, under, or adjacent to any waters subject to the 
jurisdiction of the U.S. and used, operated, or maintained by a 
public or private entity, including any contiguous or adjoining 
property under common ownership or operation.
---------------------------------------------------------------------------

    The Cruise Lines International Association (CLIA) expressed concern 
that the proposed rule's requirement in Sec.  104.295(a)(1), relating 
to the required screening location, was inappropriate for smaller 
terminals. CLIA noted that for many terminals, ``screening is conducted 
onboard cruise ships in the absence of appropriate facilities at a 
terminal'', and noted that ``some embarkation/disembarkation ports are 
not equipped to conduct screening prior to a passenger boarding.'' \20\ 
CLIA suggested several additions to the regulations that could increase 
the flexibility for cruise ship facilities in situations like this. One 
suggestion was to amend Sec.  104.295 from ``immediately prior to 
embarking a cruise ship'' to ``immediately prior to entering the 
sterile (or secure) portion of a cruise ship,'' which would allow the 
mandated screening to take place on the vessel.
---------------------------------------------------------------------------

    \20\ Cruise Lines International Association comment, USCG-2006-
23846-0023, p.2.
---------------------------------------------------------------------------

    CLIA made two other suggestions related to part 105. The first was 
to add the phrase ``where screening is performed at the cruise ship 
terminal'' to the proposed requirement in Sec.  105.500(a) 
(``Applicability''),\21\ and the second suggestion was to amend Sec.  
105.550 (``Alternatives'') to allow for alternative screening locations 
in addition to alternative screening equipment. They stated that these 
changes to the regulations would allow cruise ship terminals to locate 
screening facilities where most appropriate, as well as have screening 
performed on the vessel if done in accordance with a DoS. However, we 
note that the requested changes to subpart E are rendered unnecessary 
by the changes to the definition of ``cruise ship terminal'' and the 
revision of the definition for ``port of call,'' along with the new 
text in Sec. Sec.  104.295 and 105.292.
---------------------------------------------------------------------------

    \21\ Thus, Sec.  105.500(a) would read, ``The owner or operator 
of a cruise ship terminal must comply with this subpart when 
receiving a cruise ship or tenders from cruise ships where screening 
is performed at the cruise ship terminal.''
---------------------------------------------------------------------------

    CLIA also expressed concern that the security-related 
familiarization for screeners, in Sec.  105.535, may be a burden 
because the expectation that screeners are aware of historic and 
current threats to the industry may be unrealistic, especially without 
an authoritative source pointing to those threats. In response to this, 
we note that the particular requirements in Sec.  104.295, which would 
require the vessel to screen ``in accordance with the qualification, 
training, and equipment requirements of Sec. Sec.  105.530, 105.535, 
and 105.545,'' would be unlikely to significantly impact training 
operations. The requirements referenced consist of basic training and 
qualification requirements, and Sec.  105.545 only mandates that 
screening equipment, if used, must be used in accordance with general 
maintenance and signage requirements. With regard to familiarization, 
we would interpret it to mean familiarity with what items are 
prohibited, and common means in which they may be hidden on a person. 
We expect that all security screeners are given this training, which is 
why we have not considered it to be an added burden in this final rule.
    Additionally, one commenter stated that the proposed regulations 
would go beyond the International Maritime Organization's International 
Ship and Port Facility Security Code requirements,\22\ and that 
foreign-flagged cruise ships are not required to comply with these 
additional vessel security regulations. The commenter argued that some 
cruise ships, particularly foreign-flagged ships, may not have the room 
or capability to screen at the levels described in the proposed rule. 
Thus, the commenter argued, the liability to perform the necessary 
screening would by default fall on the facility, with ports of call 
being affected far more than cruise ship terminals. We believe that by 
clarifying the particular responsibilities of ports of call in new 
Sec.  105.292, in contrast to the requirements for cruise ship 
terminals, we have made clear that ports of call are free to continue 
screening operations in conjunction with vessels. As a result, these 
foreign-flagged cruise vessels will only be required to meet the 
limited requirements in Sec. Sec.  105.530, 105.535, and 105.545 of 
subpart E, which we believe they already do. The same commenters 
pointed out that several provisions of the proposed rule, particularly 
the definition of ``cruise ship terminal,'' but also proposed 33 CFR 
104.295, had the effect of regulatory changes that were not anticipated 
or desired by the Coast Guard. As stated in our preamble and economic 
analysis, the intent of this rulemaking action is to provide more 
detailed regulatory requirements for cruise ship screening operations 
and the associated TSP than are currently provided in parts 120 and 
128, as well as to include the requirements for a PIL in the 
regulations. We do not believe that commenters took issue with what was 
the original intent of the NPRM, but rather the unintended changes 
based on the wording of the proposed regulatory text.
---------------------------------------------------------------------------

    \22\ USCG-2006-28615-0019, p.2.
---------------------------------------------------------------------------

    In summary, based on the comments received, this final rule 
contains several changes from the proposed rule pertaining to 
requirements for cruise ship terminals and ports of call. The 
paragraphs below describes those changes in detail.
    First, to alleviate the confusion expressed by many commenters, we 
are adding a definition of ``cruise ship terminal'' that reflects the 
common understanding of the difference between a ``terminal'' and a 
``port of call.'' Cruise ship terminals are where passengers embark or 
disembark at the beginning and end of the voyage, while ports of call 
are intermediate stops during the voyage. The requirements of subpart E 
primarily apply to cruise ship terminals, while ports of call are 
simply subject to the existing requirements that the screening and 
other security arrangements be coordinated with the vessels. We are 
also modifying the definition of ``port of call'' by adding the phrase 
``or its tenders'' to the existing definition, and adding a specific 
regulatory requirement (located in new Sec.  105.292) to ensure cruise 
vessels screen all persons, baggage, and personal effects for dangerous 
substances and devices prior to entering the sterile (or secure) 
portion of a cruise ship. The primary change to the regulations with 
regard to ports of call, unchanged from the proposed rule, will be the 
requirement that the PIL be used and displayed during the screening 
process.
    Additionally, we are amending the proposed language in Sec.  
104.295 to remove the screening location requirement from the 
regulations. We agree with commenters that this language would cause 
problems for facilities where screening is performed on a cruise ship, 
and it was not our intent to impose a requirement for a redundant 
screening procedure. Instead, we are incorporating in new Sec.  
104.295(a)(2) a version of the existing language from 33 CFR 120 which 
allowed the vessel owner or operator to work with the owner or operator 
of a port of call to ensure that all passengers were screened. We 
believe that the addition of this language will make clear that the 
existing arrangements

[[Page 12092]]

between ports of call and cruise ships, in which screening is conducted 
upon re-boarding the cruise ship, remains an acceptable means of 
compliance with this part.
    We believe that these changes are responsive to the comments 
received above and better reflect the goals of the Coast Guard in this 
rulemaking. With these regulations in place, we are accomplishing three 
things. First, we are improving and standardizing screening procedures 
at cruise ship terminals, where the bulk of baggage is examined, to 
ensure that items that pose a risk of causing a TSI are prevented from 
being brought onto the vessel at those points. Second, we are 
clarifying through the use of the PIL which items must be prohibited, 
and ensuring that this information is disseminated to passengers and 
crew, not just at terminals, but also at ports of call and on vessels. 
Finally, we are clarifying the requirements for specific aspects of 
screening that Coast Guard believes are vital, including procedures, 
training, and reporting, as opposed to the more general requirements of 
the existing parts 120 and 128, to provide a minimum baseline 
requirement that ensures cruise ships remain a safe and secure 
environment.

B. Legal Responsibility for Terminal Screening Program

    Generally, commenters were concerned that the rule could make 
cruise ship terminal owners responsible for terminal screening 
operations, and therefore liable for civil monetary penalties, even if 
those operations were conducted by an independent cruise ship terminal 
operator or by the cruise ship operator. Commenters stated that in many 
cases responsibilities for passenger screening were delegated from the 
cruise ship terminal to another party, often the cruise ship operator. 
Cruise ship terminal operators argued that the proposed regulations, if 
not clarified, could impose responsibility for security and screening 
on the owner or operator of the cruise ship terminal. One commenter, a 
Port Authority, noted that Sec.  104.295(a)(1) holds the ``owner or 
operator of the vessel'' responsible for ensuring that the screening 
takes place. The commenter suggested that the Coast Guard include 
statements that the current system of assignment of screening 
responsibility is acceptable and may continue, and that the terminal 
owner or operator is not responsible for screening operations unless 
specifically noted in security plans.
    The American Association of Port Authorities (AAPA) made several 
comments that related to the responsibility for ensuring screening 
practices are carried out properly. They stated their concern that the 
proposed regulations, as written, ``do not account for the transfer of 
responsibility for security [from the terminal operator to the cruise 
ship operator] on cruise days,'' and that the language ``would impose 
full responsibility for security and screening on the owner and 
operator of a cruise ship terminal.'' The AAPA requested that the 
regulations be clarified or revised to impose the enhanced security 
obligations on the entity exercising security duties at the cruise ship 
terminal on cruise days, and that imposing obligations on the terminal 
owner who does not control security functions is redundant and would 
impose a significant financial burden.
    Similarly, another commenter stated that the language in Sec.  
105.510, ``Screening responsibilities of the owner or operator,'' is 
not flexible enough. The commenter suggested that enough flexibility 
must be written into the final rule to allow terminal owners to enter 
into agreements with terminal operators that define responsibility for 
compliance with these requirements.
    Several other commenters expressed concern regarding the perceived 
change in responsibility. One commenter argued that there were 
unintended consequences in transferring the responsibility for 
screening of passengers from the cruise lines, which are willing and 
capable, to smaller jurisdictions that are not equipped to do so. 
Another commenter stated that the proposed rule needs clarification on 
the transfer of responsibility for security and screening on cruise 
days, noting that the operator of the terminal may switch control on 
those days. One commenter, who operates a cruise facility in Miami, 
described such a mode of operation. Another operator of a cruise ship 
terminal requested that the regulation language allow terminal 
``owners'' to enter into agreements with terminal ``operators'' that 
define responsibilities for compliance with the screening requirements.
    While we do not believe that the language in the proposed 
regulation would have imposed additional responsibilities on terminal 
owners or operators, the Coast Guard nonetheless would like to respond 
to these concerns and clarify this in the final rule. In the NPRM, the 
Coast Guard did not discuss any intent to redistribute legal 
responsibility. Under both the existing regulations and the proposed 
regulatory text, the cruise ship terminal operator would be responsible 
for ensuring that terminal screening operations are carried out in a 
proper manner. Under the existing regulatory text, one acceptable way 
for the owner or the operator of a cruise ship terminal to accomplish 
this is through coordination with the cruise ship operator and 
delegation of screening operations to that entity. The existing 
language in 33 CFR part 128, ``Security of Passenger Terminals'' (which 
also applies to cruise ship terminals), addresses this matter. Existing 
Sec.  128.200(b) provides that ``you'' must work with the operator of 
each passenger vessel subject to 33 CFR part 120, to provide security 
for the passengers, the terminal, and the vessel. Those terminals need 
not duplicate any provisions fulfilled by the vessel unless directed to 
by the Captain of the Port. Additionally, when a provision is fulfilled 
by a vessel, the applicable section of the Terminal Security Plan must 
refer to that fact.
    We emphasize that ``you'' is defined in Sec.  128.110 as ``the 
owner or operator of a passenger terminal.'' We also note there is a 
reciprocal passage in Sec.  120.200(b) pertaining to the legal 
responsibilities of passenger vessels.
    Thus, the existing regulations place the requirements for the TSP 
on the owner or operator of a passenger terminal, and the proposed 
regulatory text referred to by the commenters (in Sec. Sec.  105.500, 
105.505, and 105.515) uses functionally identical language (``the owner 
or operator of a cruise ship terminal''). Based on the existing 
language in 33 CFR 128.200(b), the owner or operator of a terminal 
could meet its TSP requirements by having certain provisions fulfilled 
by a vessel, assuming the TSP referred to that fact. We believe the 
commenters' concerns resulted from the removal of the sections, in 
parts 120 and 128, which explicitly stated that the responsibilities of 
vessels and terminals could be handled through cooperative means if 
specified in the respective security plans. In response to the comments 
received, we are incorporating that language into the text of parts 104 
and 105 (see Sec. Sec.  104.295(a)(2) and 105.292(a)), to acknowledge 
that the current system remains unchanged.
    One commenter stated that the way the security screening process 
works at his port is that the facility signs a DoS agreement with the 
ship, and the DoS identifies who is responsible for security throughout 
the process. The commenter stated that ``the facility people would 
usually agree to be responsible for the facilities [sic] security and 
the ship crew are responsible for their own ship.'' \23\ We

[[Page 12093]]

acknowledge that such a system is still permissible under the final 
rule, and believe that incorporating the language contained in parts 
120 and 128 into the text of parts 104 and 105 (specifically section 
104.295(a)(2) and section 105.295(a)) clarifies this type of 
arrangement. Another commenter noted that several items from proposed 
subpart E (Sec.  105.505(c)(2) and (c)(6), and Sec.  105.510(c)), 
appear to indicate that specific screening responsibilities can be 
delegated in the DoS, as is currently permitted. We note that this is 
correct.
---------------------------------------------------------------------------

    \23\ USCG-2006-23846-0016, p.3.
---------------------------------------------------------------------------

    The AAPA laid out several scenarios detailing how security 
responsibilities may be shared between the facility and cruise ship at 
different types of ports. We believe that all of them are addressed by 
the changes in this final rule.
    In the first scenario, the cruise line leases the entire terminal 
facility from the port authority. The cruise line will have its own FSP 
for the leased terminal, and will have the legal responsibility to 
screen for dangerous substances and devices for the terminal and the 
vessel.
    In the second scenario, the AAPA states that a port authority may 
operate the cruise ship terminal, and would itself handle the security 
of the facility. Both of these situations would be acceptable means of 
complying with Sec. Sec.  104.295 and 105.290, assuming that the 
division of responsibilities was laid out in a DoS and detailed in the 
relevant security plans. We note that in the first scenario, as the 
facility owner, a terminal operator could be liable if security 
measures were not maintained, and if it was discovered that the 
terminal operator did not properly ensure compliance by working with a 
cruise ship operator as required in Sec.  105.290(a). We note that 
language, adapted from Sec.  128.200(b), has been added to subsection 
105.290(a) to improve clarity.
    In the third scenario, a port authority may outsource the operation 
and security for cruise operations to a third party, who would control 
the FSP. In this case, the AAPA argues that the port authority could be 
exposed to civil penalties under the proposed rule. We agree that in 
this scenario a port authority, as the owner of a cruise ship terminal, 
could be held responsible for inadequate security procedures if they 
did not properly ensure that the third party, given control of the 
terminal by the port authority, conducted screening operations pursuant 
to subpart E. In such a scenario, the third party, as the operator of a 
cruise ship terminal, could also face penalties.\24\ We believe that it 
is proper that both owners and operators be held to these standards to 
ensure that screening procedures are carried out properly.
---------------------------------------------------------------------------

    \24\ In deciding against whom to assess civil monetary penalties 
under MTSA, the Coast Guard attempts to assign the penalties to the 
party whose negligence or malfeasance caused the violation.
---------------------------------------------------------------------------

    In the fourth scenario, cruise ships conduct screening and maintain 
legal liability. Under the regulations specific to ports of call that 
we have added in Sec.  105.292, which include the adapted language from 
existing Sec.  128.200(b), ports of call could continue to rely on 
cruise ships to conduct screening. A port of call could be subject to 
legal liability if it did not complete a DoS and ensure that the cruise 
ship operator was conducting the required screening. We believe this is 
an appropriate incentive to ensure that screening is provided.

C. Screening Procedures and Requirements

    The Coast Guard received a number of comments relating to the 
specific screening requirements laid out in proposed subpart E. These 
comments contained questions related to the training and certification 
of screeners, the use of screening equipment, requirements in cases of 
breaches of security, and other items. In this section, we address the 
specific issues relating to the technical and operational aspects of 
the proposed screening requirements. While many comments addressed both 
technical questions as well as issues relating to the operational 
capacities of small ports of call, we note that the issue with ports of 
call has been addressed extensively in section A above.
    In the NPRM, we laid out the specific proposed screening 
requirements in subpart E of part 105, ``Facility Security: Cruise Ship 
Terminals.'' This subpart contained a requirement to develop a TSP as 
part of the FSP, as well as detailing specific operational, training 
and qualification, and equipment requirements. We received numerous 
comments requesting clarification and amendments of these parts, which 
are addressed below.
    One commenter asked questions relating to Sec.  105.530, 
``Qualifications of Screeners,'' in which the Coast Guard had proposed 
that screeners must have a combination of education and experience 
deemed sufficient by the Facility Security Officer (FSO) in order to 
perform the duties of the position, and that screeners are capable of 
using all methods and equipment needed to perform their duties. The 
commenter took issue with these requirements, and suggested that we 
require proof of certification to operate each type of screening 
equipment. The commenter suggested that such a system could be similar 
to that required in the Private Charter Standard Security Program, 
which is a particular privately-run program for security compliance.
    While we have considered a more specific requirement, such as that 
used by the Private Charter Standard Security Program, we have decided 
to use a more general, and thus more flexible, standard for this rule. 
Because this rule does not impose specific equipment or methodologies 
for screening, writing certification requirements into regulation could 
severely restrict the options used at ports. Given the wide differences 
in the way cruise ship terminals are used, set up, and operated, we 
believe that giving the FSO the discretion and responsibility for 
determining which qualifications are necessary to adequately perform 
the required duties is the best course of action.
    The commenter also questioned whether the training requirements for 
screeners, laid out in proposed Sec.  105.535, would be demonstrated 
through self-certification or from a certified provider. The commenter 
suggested that, much as FSOs must have a certification pursuant to 
section 821 (``Port Security Training and Certification'') of the Coast 
Guard Authorization Act of 2010 (Pub. L. 111-281, October 15, 2010), 
screeners should also be required to be certified by a provider rather 
than self-certify, arguing that self-certification fails to establish a 
minimum level of required training and competency.
    We note that nothing in Sec.  105.210 requires certification, 
either self-certification or third-party certification, and furthermore 
we note that the items in Sec.  105.535 are facility-specific. As to 
whether third-party certification could be a viable alternative to the 
current method, we believe that it would be impractical for a 
certification provider to develop and provide certifications relating 
to facility-specific issues. We continue to believe that the 
familiarization requirements set forth in Sec.  105.535 are best 
documented in the TSP, as set forth in Sec.  105.505(c)(5) (the 
documentation requirement for procedures to comply with Sec.  105.535 
regarding training of screeners).
    Several commenters also raised the issue of the discovery of 
prohibited items during the screening process. In Sec.  105.515(d), we 
proposed the following text: ``Facility personnel must report the 
discovery of a prohibited item

[[Page 12094]]

introduced by violating security measures at a cruise ship terminal as 
a breach of security in accordance with Sec.  101.305(b) of this 
subchapter.'' The commenter argued that the discovery of prohibited 
items during the screening process must not be treated as a breach of 
security, but rather treated in accordance with local law enforcement 
practices, which may include such remedies as confiscation or disposal 
of the prohibited item. Only if the item is discovered in the secure 
area of the cruise ship terminal should it be treated as a breach of 
security pursuant to Sec.  101.305(b). We agree with the commenter, and 
in fact this was our intention. Therefore, we are modifying the text of 
this section to clarify that fact by adding a sentence noting that a 
prohibited item discovered during security screening is not considered 
a breach of security.
    Additionally, one commenter requested clarification that an 
occurrence of a reportable breach of security is not, in itself, a 
basis for a civil or criminal penalty under Sec.  101.415 as a breach 
of security is distinct from a violation of the requirements applicable 
to cruise ship terminal owners and operators. We agree with this 
analysis, although we also note that reporting a breach of security 
does not negate a violation of the cruise ship terminal's security 
requirements, if they were not properly carried out.
    Another commenter also expressed confusion regarding the language 
in Sec.  105.515(d). This commenter noted that some prohibited items, 
such as bleach, may be properly located in the ship's stores, which is 
a secure area. They stated that this may be confusing for facility 
security personnel and Coast Guard officers, ``especially if a facility 
is not designed with space for separate areas.'' \25\ We assume that 
this last phrase means that there is a single space for ship's stores 
and screened passenger baggage. In such a case, we hope that the cruise 
ship operator is able to distinguish between items in the ship's stores 
and items brought on board by passengers. If unable to, such an 
operator may wish to create separation between the two storage areas. 
As noted above, items contained in ship's stores are not subject to the 
restrictions in this section, which only apply to items brought on 
board by passengers. If an item properly brought on board as part of 
the ship's stores is ``discovered'' in a secure area, it would not 
constitute a breach of security. We note the proposed language makes 
this distinction clear, as it reads ``facility personnel must report 
the discovery of a prohibited item introduced by violating security 
measures'' as a breach of security (emphasis added). Items brought on 
board by legal means, such as ship's stores, do not fall under this 
category.
---------------------------------------------------------------------------

    \25\ USCG-2006-23846-0019, p.3.
---------------------------------------------------------------------------

    One commenter requested clarification that the screening processes 
are not required upon entrance to the cruise ship terminal, but rather 
that screening measures should be in place only when passengers attempt 
to gain access to a secure area of the terminal. Another commenter 
suggested that the Coast Guard would require screening processes be in 
place at the time a person or baggage enters the cruise ship terminal. 
The former interpretation is correct, and we believe the regulatory 
text is already clear on this point. Note that the only requirement 
regarding the location of screening is in Sec.  105.525(a)(1), which 
reads, ``each cruise ship terminal must have at least one location to 
screen passengers and carry-on items prior to allowing such passengers 
and carry-on items into the secure areas of the terminal designated for 
screened persons and carry-on items.'' Similarly, the complementary 
requirement in Sec.  104.295(a)(1) only requires that screening take 
place prior to entering the sterile or secure portion of the cruise 
ship.
    One commenter stated that screening equipment that has been 
determined to meet the TSA's Qualified Product List (QPL) would be 
appropriate for use under Sec.  105.545, which sets basic standards for 
screening equipment. The commenter also suggested that products on the 
QPL could be optimized for the cruise ship industry. We agree that 
products on the QPL have undergone significant testing and refinement, 
but we disagree with the suggestion that we refer to the QPL directly 
because in this rule we are attempting to maintain as much flexibility 
as possible. Therefore, we have limited the requirements to compliance 
with 49 CFR 1544.211 (TSA requirements for use of X-ray systems), as 
well as FDA safety requirements.

D. Prohibited Items List (PIL)

    Commenters raised a variety of concerns regarding the PIL, 
including the posting of the PIL, clarification of specific terms on 
the PIL, requests to add or delete items from the PIL, and application 
of the list to persons other than passengers. These concerns are 
addressed below.
    One commenter suggested that there should be an exemption from the 
prohibition on dangerous substances and devices for crew members 
bringing items necessary for the performance of their duties. These 
could include props, such as toy guns, if used in a performance, or 
other such items. We do not believe such an exemption for crew members 
is warranted. We are concerned that a crew member may breach security 
with a prohibited item under the false pretense that an item was needed 
for his or her official duties. We note that if certain items are 
needed on board, such as props for a show, they can be brought in as 
ship's stores.
    One commenter took issue with including the PIL in the FSP, but not 
the VSP. The commenter argued that by not including the PIL as a 
requirement in the VSP, there is inconsistency in the application of 
prohibited items. They also argued that including the PIL in the VSP 
would ensure application at foreign ports of call and allow for 
consistent communication regarding prohibited items. We disagree. Even 
if the cruise ship conducts the screening, they are still required to 
conduct it in accordance with the requirements in Sec.  104.295, which 
prohibit the introduction of ``dangerous substances and devices.'' The 
PIL is a document that helps to clarify what those items are. 
Therefore, because vessel operators must screen for items on the PIL, 
it is not necessary to include the PIL in the VSP.
    One commenter argued that the Coast Guard may not be the correct 
entity to generate the PIL, as the limitations placed on its resources 
make it inadequate to compile a modern list of dangerous substances. We 
disagree and note that the Coast Guard expends considerable resources 
in considering materials, scenarios, and techniques that could be used 
to cause security incidents. Finally, we note that members of the 
public are welcome to contact the Coast Guard at any time with 
suggestions for how the PIL can be improved.
    One commenter requested more specificity for the PIL. Noting that 
the list includes such terms as ``limited quantities'' and ``quantities 
appropriate for personal use,'' the commenter suggested that those 
terms needed additional specificity in order to take the subjectivity 
out of screening for passengers and cruise terminal operators, as well 
as Coast Guard inspectors.
    These terms were used in the PIL in two locations. We stated that 
aerosols are prohibited, but excluded ``items for personal care or 
toiletries in limited quantities.'' Similarly, we stated that lighter 
fluids are prohibited, but provided an exception for ``liquefied gas 
(e.g. Bic[supreg]-type) or absorbed liquid (e.g.

[[Page 12095]]

Zippo[supreg]-type) lighters in quantities appropriate for personal 
use.''
    Upon consideration, and given the nature of the PIL, we believe 
that removing aerosols and lighter fluids from the PIL is appropriate. 
By removing these items from the PIL, we are not saying that lighter 
fluid and aerosols are not ``dangerous substances'' in any amount. 
Rather, we are giving the responsible security officials the discretion 
and responsibility for determining if allowing these items in ``limited 
quantities'' or ``quantities appropriate for personal use'' is the best 
course of action considering the particular nature of the vessel and 
duration of the cruise. If the security officer believes that a 
particular quantity of aerosols or lighter fluid constitutes a 
dangerous amount, then they should prohibit that item as they would any 
other dangerous substance or device in accordance with Sec.  104.295 
and Sec.  105.290.
    For similar reasons involving a lack of specificity, we are 
removing ``realistic replicas'' of guns and firearms. Again, we leave 
it to the judgment of a security officer as to whether a replica is 
realistic enough to constitute a threat.
    One commenter argued that the PIL would not be particularly 
effective, and that ``any current inspector is already looking for 
those items.'' We agree with the idea that an inspector would likely be 
looking for the items listed on the PIL, and would like to use this 
opportunity to explain again the purpose of the PIL. Regulations 
already exist prohibiting ``dangerous substances and devices'' from 
being brought on board cruise ships, and screening procedures are 
already designed to search for them. The PIL is a Coast Guard 
interpretation of certain items that we believe are always ``dangerous 
substances and devices,'' and must be intercepted at screening. 
Publication of this list by the Coast Guard will reduce uncertainty in 
the industry and the public about what is prohibited and what is not, 
especially as many cruise lines maintain varying lists about what is 
prohibited, and will help cruise ship facilities better implement the 
screening requirement in 33 CFR 105.290(a). We fully expect cruise ship 
and terminal operators to use discretion in screening, and to prohibit 
other items that they consider dangerous, either based on the nature of 
the item, the quantity, or other characteristics. For that reason, the 
PIL is not intended to be a comprehensive list of all items prohibited 
on a cruise ship. Furthermore, we note that the PIL does not prohibit 
screening for other items that, while not necessarily dangerous from a 
security standpoint, may be prohibited for other reasons, such as 
electrical appliances or alcoholic beverages.
    The commenter also suggested that the posting of the PIL on docks, 
the incorporation into the FSP, and the use of the PIL in training 
would not be particularly onerous. We agree.
    One commenter suggested that the proposed regulations do not 
address items that can be brought on board at a foreign port of call. 
We disagree, and note that a cruise ship must still comply with the 
regulations in Sec.  104.295 before passengers enter the sterile (or 
secure) portion of a cruise ship. During that screening, which 
incorporates relevant portions of subpart E, items brought on board at 
the port of call will be subject to the requirements of this rule.
    One commenter protested the inclusion of ``self-defense sprays'' on 
the PIL. The commenter made several arguments as to why such items 
should be permitted on vessels. First, the commenter noted that unlike 
an aircraft, on cruise ships there are medical facilities for treatment 
and open air areas on the ship in case of accidental release. In 
response, we note that the rationale for an item being included on the 
PIL is not that they may accidentally injure a passenger, but rather 
that they can be used to effect a TSI. Therefore we do not agree with 
the commenter on this point. Second, the comment suggested that bear 
spray is often used by passengers in Alaska for use on shore 
excursions, and argued that the restricted areas on the ship could 
protect critical operations in the event of a bear spray release. While 
we realize that this is possible, we note that a TSI may not 
necessarily involve breaching critical ship areas like the bridge or 
engine room, but could involve simply the injury or deaths of large 
numbers of passengers trapped in an enclosed area, which is one reason 
that cruise ships are protected more than other areas, such as 
buildings.
    However, we note that there is a solution for the commenter's need 
for passengers to possess items like bear spray. The PIL is a rule that 
relates to screening of passenger items, but does not affect items 
brought on board as vessel stores or provisions. In the bear spray 
example, passengers could relinquish their bear spray to vessel 
employees prior to boarding, who could store the sprays in a secure 
area of the vessel. The sprays could then be returned to the passengers 
prior to their shore excursions. In this way, the fact that the item is 
on the PIL does not fully exclude it from use. Such a system of having 
items stored in a secure area can be used if a passenger wishes to 
transport or use on expeditions other items on the PIL, including 
firearms. We reiterate that this rule is simply designed to prohibit 
dangerous items from being accessible to passengers on the vessel, not 
to limit the activities of person on shore-side excursions.
    Finally, the Coast Guard is modifying the language in Sec.  
105.515(a) so that it is phrased as a requirement on owners and 
operators of cruise ship terminals, rather than simply a policy 
statement that the Coast Guard will issue and maintain the PIL. We note 
that this has no substantive effect, but is simply a stylistic change, 
as owners and operators of cruise ship terminals are required by Sec.  
105.515(c) to display the PIL at screening locations and integrate the 
PIL into the DoS.
    We have included a copy of the revised Prohibited Items List in the 
docket of this rulemaking, and we also note that it is available on the 
Coast Guard's website at https://homeport.uscg.mil. As stated in the 
NPRM, if there are future revisions to the PIL, the Coast Guard will 
publish an interpretive rule in the Federal Register to alert the 
public of any such change. Additionally, the Coast Guard will, as 
stated in the NPRM, endeavor to obtain NMSAC input and afford ship and 
facility owners a reasonable amount of advance notice before making an 
update effective unless an immediate change is necessary for imminent 
public safety and/or national security reasons.

E. Regulatory Impact Analysis and Regulatory Flexibility Analysis

    The Coast Guard received comments from one commenter on the 
Regulatory Analysis. The commenter stated that the cost analyses did 
not reflect the costs that would be incurred by existing facilities 
that receive cruise ship tenders if they would have to assume 
responsibility for screening. The commenter also noted that the 
Regulatory Flexibility Analysis for the NPRM did not include the costs 
for these facilities, which are likely owned by small businesses and 
governments.
    In response to these and other similar comments, for the Final 
Rule, the Coast Guard modified two definitions in Sec.  101.105 and 
amended the proposed language to remove the screening location 
requirement in Sec.  104.295. These changes, discussed in detail in 
section A, above, clarify that existing facilities that receive cruise 
ship tenders may continue the current practice of coordinating 
screening and security arrangements with cruise vessels. The cost 
concerns expressed in the comments on the Regulatory Analysis are 
alleviated by the regulatory language

[[Page 12096]]

changes, the language in the Final Rule clarifies the current industry 
practice.

F. Other Comments

    The Coast Guard received comments on a wide variety of other 
matters, only some of which directly related to the substance of the 
proposed rule. We address these comments briefly in this section.
    Several commenters expressed dissatisfaction with the proposed rule 
in general, and argued that screening for dangerous substances and 
devices would be burdensome and/or ineffective. We note that screening 
of passengers and their baggage is already required, and this rule 
merely adds more detail to those requirements. As made clear in our 
regulatory analysis, we do not believe that the additional detail 
provided in this regulation will substantially alter the time and/or 
burden that this screening requires for either passengers or cruise 
ship terminal operators.
    One commenter requested that there be exceptions to the items 
prohibited, such as a medical condition or special circumstances. We 
have addressed this issue above, and note that otherwise-prohibited 
items can be brought onto a ship via ship's stores, and stored in a 
controlled environment for authorized use. The commenter also suggested 
that the Coast Guard should take into consideration the vast 
differences in size between cruise ships and aircraft, and allow cruise 
ships to formulate their own screening methods. We note that this rule 
relates to screening methods that were developed specifically for 
cruise ships, and is scalable for cruise ships that need to screen 
thousands of passengers in a short time.
    One commenter argued that bringing guns on board a cruise ship 
would improve the personal safety of passengers, if one passenger were 
to be assaulted by another. We note that this rule is focused on the 
risks of a TSI, not personal safety, and the risks to all passengers 
caused by allowing uncontrolled firearms onto cruise ships are 
substantial. We note that the issue of personal safety with regard to 
firearms is outside the scope of this rule.
    One commenter agreed with the Coast Guard that while wholesale 
adoption of TSA standards for X-ray and explosives detective systems 
was not necessary, there were certain advantages to using machinery on 
the TSA's QPL. These advantages included established system maturity, 
mature logistics and maintenance organizations, and certification 
programs. We agree that operators may find items that are certified to 
TSA standards useful, but they are not required. The commenter also 
noted that such machines can be used to scan vessel stores, although we 
note that screening of stores is outside the scope of this rulemaking.
    One commenter recommended that the Coast Guard adopt a ``turnkey 
approach'' to security inspections of all sorts where a single company 
is tasked with providing equipment, personnel, training, and the 
security infrastructure necessary to meet specified requirements. While 
it is certainly within the scope of cruise ship terminal operators and 
cruise ship operators to work with a single company to meet all of the 
applicable requirements, it is by no means required. The security 
requirements finalized in this rule are designed to allow flexibility, 
especially given the varying configurations and operational models for 
cruise ships, terminals, and ports of call.
    The Coast Guard received comments from one commenter on the 
Regulatory Analysis. The commenter stated that the cost analyses did 
not reflect the costs that would be incurred by existing facilities 
that receive cruise ship tenders if they would have to assume 
responsibility for screening. The commenter also noted that the 
Regulatory Flexibility Analysis for the NPRM did not include the costs 
to these facilities, which are likely owned by small businesses and 
governments.
    In response to the comments, for the Final Rule, the Coast Guard 
has modified several definitions and amended the proposed language to 
remove the screening location requirement in Sec.  104.295. These 
changes clarify that existing facilities that receive cruise ship 
tenders may continue the current practice of coordinating screening and 
security arrangements with cruise vessels. The cost concerns expressed 
in the comments on the Regulatory Analysis are alleviated by the 
regulatory language changes. Therefore, we are adopting as final the 
regulatory assessment for the NPRM, with minor administrative edits to 
account for the revised text of the final rule. In addition, a full 
Regulatory Assessment (RA) is available in the docket.

V. Regulatory Analyses

    We developed this final rule after considering numerous statutes 
and executive orders related to rulemaking. Below we summarize our 
analysis based on these statutes and executive orders.

A. Regulatory Planning and Review

    Executive Orders 12866 (``Regulatory Planning and Review'') and 
13563 (``Improving Regulation and Regulatory 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. Executive Order 13771 (``Reducing Regulation and 
Controlling Regulatory Costs''), directs agencies to reduce regulation 
and control regulatory costs and provides that ``for every one new 
regulation issued, at least two prior regulations be identified for 
elimination, and that the cost of planned regulations be prudently 
managed and controlled through a budgeting process.''
    The Office of Management and Budget (OMB) has not designated this 
rule a ``significant regulatory action'' under section 3(f) of 
Executive Order 12866. Accordingly, OMB has not reviewed it. As this 
rule is not a significant regulatory action, this rule is exempt from 
the requirements of Executive Order 13771. See OMB's Memorandum 
``Implementing Executive Order 13771, Titled `Reducing Regulation and 
Controlling Regulatory Costs' '' (April 5, 2017). A regulatory analysis 
(RA) follows.
    The following table summarizes the affected population, costs, and 
benefits of this rule. A summary of costs and benefits by provision is 
provided later in this section.

  Table 1--Summary of Affected Population, Costs in 2016$ and Benefits
------------------------------------------------------------------------
                Category                             Estimate
------------------------------------------------------------------------
Affected population....................  137 MTSA-regulated facilities;
                                         23 cruise line companies.
Development of TSP.....................  $156,397

[[Page 12097]]

 
Updating FSP...........................  $9,775
                                        --------------------------------
    Total Cost *.......................  $166,171
------------------------------------------------------------------------
                          Qualitative Benefits
------------------------------------------------------------------------
Terminal Screening Program.............  Greater clarity and efficiency
                                          due to removal of redundancy
                                          in regulations.
                                         The TSP improves industry
                                          accountability and provides
                                          for a more systematic approach
                                          to monitor facility
                                          procedures.
Prohibited Items List..................  Details those items that are
                                          prohibited from all cruise
                                          terminals and vessels.
                                         Provides a safer environment by
                                          prohibiting potentially
                                          dangerous items in unsecured
                                          areas of the cruise ship
                                          across the entire industry.
------------------------------------------------------------------------
* Value is undiscounted. We expect the costs of this rulemaking are
  borne in the first year of implementation. See discussion below for
  more details.

    As previously discussed, this final rule will amend regulations on 
cruise ship terminal security. The regulations will provide 
requirements for the screening of persons intending to board a cruise 
ship, as well as their baggage and personal effects. In this 
rulemaking, we intend to issue and maintain a Prohibited Items List of 
dangerous substances or devices (e.g., firearms and ammunition, 
flammable liquids and explosives, dangerous chemicals). The PIL is 
based on similar items currently prohibited by industry, and is 
intended to be a minimum requirement; vessel owner and operators would 
be free to prohibit items not listed on it. We anticipate that the PIL 
described in the preamble will be cost neutral to the industry. We also 
intend to eliminate redundancies in the regulations that govern the 
security of cruise ship terminals. Table 2 summarizes changes from the 
NPRM to the Final Rule.

                                Table 2--Changes From the NPRM to the Final Rule
----------------------------------------------------------------------------------------------------------------
               Section                           NPRM                  Final rule                 Costs
----------------------------------------------------------------------------------------------------------------
Cruise ship terminal.................  Referred to as a point   Referred to as a point   Clarification: No cost.
                                        from which passengers    for initial
                                        or crew commence or      embarkation.
                                        terminate a voyage.
104.295(1): Screening................  Required that screening  The requirement for the  Clarification: No Cost.
                                        should be done at the    final rule, now state
                                        cruise ship terminal.    that screen should be
                                                                 done prior to entering
                                                                 the sterile (or
                                                                 secure) portion of a
                                                                 cruise ship.
104.295(2): Screening................  N/A....................  Vessel owner or          Current industry
                                                                 operator may work with   practice: No Cost.
                                                                 cruise ship terminal
                                                                 of port of call to
                                                                 meet the requirement
                                                                 of this section.
105.292: Cruise ship ports of call...  N/A....................  Owner or operator of     Current industry
                                                                 cruise ship port of      practice: No Cost.
                                                                 call must work with
                                                                 the operator of each
                                                                 cruise ship to
                                                                 minimize duplication
                                                                 of any provision
                                                                 fulfilled by the
                                                                 vessel.
105.500(c)(2): General...............  Terminal owners and      Both terminal and        Clarification: No Cost.
                                        operators must comply    cruise ship owners and
                                        with an approved TSP.    operators must comply
                                                                 with an approved TSP.
----------------------------------------------------------------------------------------------------------------

    This final rule will allow owners and operators of cruise ships and 
cruise ship terminals the choice of their own screening methods and 
equipment and establish security measures tailored to their own 
operations. This final rule will incorporate current industry practices 
and performance standards.
    We found several provisions of the rulemaking to have no additional 
impact based on information from Coast Guard and industry security 
experts and site visits to cruise terminals. A summary of key 
provisions with and without additional costs follow.
    Key provisions without additional costs (current industry practice 
under existing MTSA regulations):
     33 CFR part 105 Subpart E Screening equipment standards;
    [cir] Sec.  105.255(a) and Sec.  128.200(a)(1) and Sec.  128(a)(2) 
currently require screening for dangerous substances and devices. In 
accordance with those regulations, industry already screens baggage and 
persons.
     Sec.  105.530 Qualifications of screeners; and
    [cir] Sec.  105.210 details qualifications for facility personnel 
with security duties, which includes operation of security equipment 
and systems, and methods of physical screening of persons, personal 
affects, baggage, cargo and vessel stores.
     Sec.  105.535 Training of screeners.
    [cir] Sec.  105.210 details qualifications for facility personnel 
with security duties, which includes operation of security equipment 
and systems, and methods of physical screening of persons, personal

[[Page 12098]]

affects, baggage, cargo and vessel stores. Records for all training 
under Sec.  105.210 are required to be kept per Sec.  105.225(b)(1).
    The purpose of including these requirements in this regulatory 
action is to consolidate requirements for screeners in one place of the 
CFR and eliminate redundancies in cruise ship security regulations by 
eliminating the requirements in parts 120 and 128. We do not believe 
that these new items will add any additional costs, for the reasons 
described below.
    We note that several of the requirements in Sec.  105.535 are 
already implicitly required by the general security training 
requirements in Sec.  105.210. Specifically, Sec.  105.535(b), (c), and 
(g), requiring that screening personnel be familiar with specific 
portions of the TSP, are already encompassed by the general requirement 
in Sec.  105.210(k), which requires security personnel to be familiar 
with relevant portions of the FSP. Also, Sec.  105.535(f), which 
requires that screeners be familiar with additional screening 
requirements at increased MARSEC levels, is implicitly contained in the 
existing requirement in Sec.  105.210(m).
    Other items in Sec.  105.535 are not expected to increase costs 
because we believe they are already performed by screening personnel. 
We believe that all screening personnel are currently trained in the 
specific screening methods and equipment used at the terminal (item 
(d)), and the terminal-specific response procedures when a dangerous 
item is found (item (e)). Furthermore, we believe it is a reasonable 
assumption that screening personnel are familiar with item (a)--
historic and current threats against the cruise ship industry.
    We estimate the final rule will affect 23 cruise line companies. 
Each cruise line maintains an FSP for each terminal that they utilize. 
Based on information from the Coast Guard MISLE database, we estimate 
that the final rule will require that FSPs at 137 MTSA-regulated 
facilities be updated. The final rule will require these facilities to 
add TSP chapters to their existing FSPs. This rule will also require 
owners and operators of cruise ship terminals to add a Prohibited Items 
List to current FSPs. The following table provides a breakdown of 
additional costs by requirement.

           Table 3--Summary of First-Year Costs by Requirement
------------------------------------------------------------------------
                                      Costs
          Requirement            (undiscounted;        Description
                                     rounded)
------------------------------------------------------------------------
Terminal Screening Program             $156,397  Cost to create and add
 (TSP).                                           the TSP chapter to the
                                                  FSPs.
Update the FSP.................           9,775  Cost to update the
                                                  Prohibited Items List
                                                  in FSPs.
                                ----------------
    Total......................         166,171  First-year undiscounted
                                                  costs.
------------------------------------------------------------------------

    We estimate the cost of this rule to industry to be about $166,171 
in the first year. We expect the total costs of this rulemaking to be 
borne in the first year of implementation. Under MTSA, FSPs are 
required to undergo an annual audit, and it is during that audit that 
any revisions to the PIL will be incorporated into the FSP (33 CFR 
105.415). We do not anticipate any recurring annual cost as a result of 
this rule, as the annual cost to update the FSP is not expected to 
change due to the inclusion of the TSP and PIL.
Benefits
    The benefits of the rulemaking include codification of guidelines 
for qualifications for screeners, more transparent and consistent 
reporting of screening procedures across cruise lines, improved 
industry accountability regarding security procedures, and greater 
clarity and efficiency due to the removal of redundant regulations. We 
do not have data to estimate monetized benefits of this rulemaking. We 
present qualitative benefits and a break even analysis in the 
Regulatory Analysis available in the docket to demonstrate that we 
expect the benefits of the rulemaking to justify its costs.
    There are several qualitative benefits that can be attributed to 
the provisions in this rulemaking. Table 4 provides a brief summary of 
benefits of key provisions.

                   Table 4--Benefits of Key Provisions
------------------------------------------------------------------------
        Key provision                           Benefit
------------------------------------------------------------------------
Terminal Screening Program...   Greater clarity and efficiency
                                due to removal of redundancy in
                                regulations.
                                The TSP improves industry
                                accountability and provides for a more
                                systematic approach to monitor facility
                                procedures.
Prohibited Items List........   Details those items that are
                                prohibited from unsecured areas in all
                                cruise terminals and vessels.
                                Provides a safer environment by
                                prohibiting potentially dangerous items
                                across the entire industry.
------------------------------------------------------------------------

Break Even Analysis
    It is difficult to quantify the effectiveness of the provisions in 
this rulemaking and the related monetized benefits from averting or 
mitigating a transportation security incident (TSI). Damages resulting 
from TSIs are a function of a variety of factors including, but not 
limited to, target type, terrorist attack mode, the number of 
fatalities and injuries, economic and environmental impacts, symbolic 
effects, and national security impacts.
    For regulatory analyses, the Coast Guard uses a value of a 
statistical life (VSL) of $9.6 million. A value of a statistical life 
of $9.6 million is equivalent to a value of $9.60 as a measure of the 
public's willingness to pay to reduce the risk of a fatality by one in 
a million, $0.96 to reduce a one in 10 million risk, and $0.096 to 
reduce a one in 100 million risk.\26\ As 8.9

[[Page 12099]]

million passengers embark onto cruise ships in the U.S. each year,\27\ 
very small reductions in risk can result in a fairly large aggregate 
willingness to pay for that risk reduction. A VSL of $9.6 million 
indicates that 8.9 million cruise ship passengers that embark from the 
U.S. would collectively be willing to pay approximately $8.544 million 
to reduce the risk of a fatality by one in 10 million (8.90 million 
passenger x $0.96). As the 8.9 million passengers estimate only 
includes the initial embarkation of a cruise and passengers often leave 
and return to the vessel during a cruise (passing through screening 
each time), the actual risk reduction to break even per screening may 
be lower. The annualized costs of the final rule are approximately 
$22,111 at 7 percent; thus, the final rule would have to prevent one 
fatality every 434 years for the rule to reach a break-even point where 
costs equal benefits ($9.6 million value of a statistical life/$22,111 
average annual cost of rule = 434).
---------------------------------------------------------------------------

    \26\ ``Guidance on Treatment of the Economic Value of a 
Statistical Life in U.S., Department of Transportation Analysis'' 
https://cms.dot.gov/sites/dot.gov/files/docs/2016%20Revised%20Value%20of%20a%20Statistical%20Life%20Guidance.pdf.
    \27\ Source: Cruise Lines International Association, Inc. 
(CLIA), 2009 U.S. Economic Impact Study, Table ES-2, Number of U.S., 
Embarkations. . https://www.cruising.org/about-the-industry/press-room/press-releases/pr/clia-releases-report-on-industry-s-2009-contributions.
---------------------------------------------------------------------------

    The preliminary Regulatory Analysis in the docket provides 
additional details of the impacts of this rulemaking.

B. Small Entities

    Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have 
considered whether this rule will have a significant economic impact on 
a substantial number of small entities. The term ``small entities'' 
comprises small businesses, not-for-profit organizations that are 
independently owned and operated and are not dominant in their fields, 
and governmental jurisdictions with populations of fewer than 50,000 
people. In the NPRM the Coast Guard certified that this rule will not 
have a significant economic impact on a substantial number of small 
entities. The Coast Guard received no comments related to its 
discussion and analysis of impacts on small entities during the public 
comment period. We have received no additional information or data that 
will alter our determination, discussion and analysis of the NPRM.
    We expect entities affected by the rule will be classified under 
the North American Industry Classification System (NAICS) code 
subsector 483--Water Transportation, which includes the following six-
digit NAICS codes for cruise lines: 483112--Deep Sea Passenger 
transportation and 483114--Coastal and Great Lakes Passenger 
Transportation.
    According to the Small Business Administration's Table of Small 
Business Size Standards,\28\ a U.S. company with these NAICS codes and 
employing equal to or fewer than 500 employees is a small business. 
Additionally, cruise lines may fall under the NAICS code 561510--Travel 
Agencies, which have a small business size standard of equal to or less 
than $20.5 million in annual revenue.
---------------------------------------------------------------------------

    \28\ Source: http://www.sba.gov/size. SBA has established a 
Table of Small Business Size Standards, which is matched to the 
North American Industry Classification System (NAICS) industries. A 
size standard, which is usually stated in number of employees or 
average annual receipts (``revenues''), represents the largest size 
that a business (including its subsidiaries and affiliates) may be 
to remain classified as a small business for SBA and Federal 
contracting programs.
---------------------------------------------------------------------------

    For this rule, we reviewed recent company size and ownership data 
from the Coast Guard MISLE database, and public business revenue and 
size data. We found that of the 23 entities that own or operate cruise 
ship will be affected by this rulemaking, 11 are foreign entities. All 
23 entities exceed the Small Business Administration small business 
standards for small businesses along with the 137 MTSA facilities.
    We did not find any small not-for-profit organizations that are 
independently owned and operated and are not dominant in their fields. 
We did not find any small governmental jurisdictions with populations 
of fewer than 50,000 people. Based on this analysis, we found that this 
rulemaking, if promulgated, will not affect a substantial number of 
small entities.
    Therefore the Coast Guard affirms its certification under 5 U.S.C. 
605(b) that this rule will not have a significant economic impact on a 
substantial number of small entities.

C. Assistance for Small Entities

    Under section 213(a) of the Small Business Regulatory Enforcement 
Fairness Act of 1996 (Pub. L. 104-121), we offered to assist small 
entities in understanding this rule so that they could better evaluate 
its effects on them and participate in the rulemaking. 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 rule calls for a collection of information under the Paperwork 
Reduction Act of 1995 (44 U.S.C. 3501-3520). As defined in 5 CFR 
1320.3(c), ``collection of information'' comprises reporting, 
recordkeeping, monitoring, posting, labeling, and other similar 
actions. The title and description of the information collection, 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 final rule, plan holders will submit 
amended security plans within 180 days of promulgation of the rule and 
update them annually. This requirement will be added to an existing 
collection with OMB control number 1625-0077.
    Title: Security Plans for Ports, Vessels, Facilities, Outer 
Continental Shelf Facilities and Other Security-Related Requirements.
    OMB Control Number: 1625-0077.
    Summary of the Collection of Information: Facilities that receive 
cruise ships will be required to update Facility Security Plans (FSPs) 
to contain additional information regarding the screening process at 
cruise terminals. Also, all cruise ship terminals that currently have a 
FSP, will need to update said plan to include the list of prohibited 
items as detailed in this rule.
    Need for Information: The information is necessary to show evidence 
that cruise lines are consistently providing a minimum acceptable 
screening process when boarding passengers. The information will 
improve existing and future FSPs for cruise terminals, since they 
currently do not separate this important information.
    Proposed Use of Information: The Coast Guard will use this 
information to ensure that facilities are taking the proper security 
precautions when loading cruise ships.
    Description of the Respondents: The respondents are FSP holders 
that receive cruise ships.
    Number of Respondents: The number of respondents is 10,158 for 
vessels, 5,234 for facilities, and 56 for Outer

[[Page 12100]]

Continental Shelf (OCS) facilities. Of these 5,234 facilities, 137 
facilities that receive cruise ships that will be required to modify 
their existing FSPs to account for the TSP chapter.
    Frequency of Response: Cruise lines will only need to write a TSP 
chapter once before inserting it into the associated FSP. This will be 
required during the first 6 months after publication of the final rule.
    Burden of Response: The estimated burden for cruise lines per TSP 
chapter will be approximately 16 hours. The estimated burden to update 
the FSP will be 1 hour.
    Estimate of Total Annual Burden: The estimated first-year burden 
for cruise lines is 16 hours per TSP chapter. Since there are currently 
137 FSPs, the total burden on facilities will be 2,192 hours (137 TSPs 
x 16 hours per TSP) in the first year. For the 137 facilities, the 
total burden will be 137 hours (137 FSPs x 1 hour per FSP). The current 
burden for this collection of information is 1,125,171. The new burden, 
as a result of this rulemaking, is (1,125,171 + 2,192 + 137) or 
1,127,500 hours in the first year only. All subsequent year burdens 
will be considered part of the annual review process for FSPs.
    As required by the Paperwork Reduction Act of 1995 (44 U.S.C. 
3507(d)), we have submitted a copy of this final rule to the OMB for 
its review of the collection of information.
    You need not respond to a collection of information unless it 
displays a currently valid control number from OMB. Before the 
requirements for this collection of information become effective, we 
will publish a notice in the Federal Register of OMB's decision to 
approve, modify, or disapprove the proposed collection.

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 rule under that Order and have 
determined that it has implications for federalism. A summary of the 
impact of federalism in this rule follows.
    This final rule builds on the existing port security requirements 
found in 33 CFR part 105 by establishing detailed requirements for the 
screening of persons, baggage, and personal items intended for boarding 
a cruise ship. It also establishes terminal screening requirements for 
owners and operators of cruise ship terminals, some of which are State 
entities.
    As implemented by the Coast Guard, the MTSA-established federal 
security requirements for regulated maritime facilities, including the 
terminal facilities serving the cruise ship industry, are amended by 
this final rule. These regulations were, in many cases, preemptive of 
State requirements. Where State requirements might conflict with the 
provisions of a federally approved security plan, they had the effect 
of impeding important federal purposes, including achieving uniformity. 
However, the Coast Guard also recognizes that States have an interest 
in these proposals to the extent they impose requirements on State-
operated terminals or individual States may wish to develop stricter 
regulations for the federally regulated maritime facilities in their 
ports, so long as necessary security and the above-described principles 
of federalism are not compromised. Sections 4 and 6 of Executive Order 
13132 require that for any rules with preemptive effect, the Coast 
Guard shall provide elected officials of affected state and local 
governments and their representative national organizations the notice 
and opportunity for appropriate participation in any rulemaking 
proceedings, and to consult with such officials early in the rulemaking 
process. Therefore, we invited affected state and local governments and 
their representative national organizations to indicate their desire 
for participation and consultation in this rulemaking process by 
submitting comments to the NPRM. In accordance with Executive Order 
13132, the Coast Guard is providing a federalism impact statement to 
document: (1) The extent of the Coast Guard's consultation with State 
and local officials that submit comments to this rule, (2) a summary of 
the nature of any concerns raised by state or local governments and the 
Coast Guard's position thereon, and (3) a statement of the extent to 
which the concerns of State and local officials have been met.
    The Coast Guard interacted with State and local governmental 
authorities primarily through the notice and comment procedure. The 
Coast Guard received comments from the following governmental entities: 
The Port Authority of New York and New Jersey, the City of Rockland, 
ME, the Massachusetts Port Authority, the U.S. Virgin Islands, Port 
Miami, and the Broward County Florida Port Everglades Department. The 
commenters addressed a range of issues of significance, which while 
addressed in more detail above in section IV, are summarized below.
    Many port authorities were concerned regarding the issue of 
liability in the event of security breaches or failures to comply with 
applicable terminal screening regulations. Several port authorities 
described contractual relationships with cruise ship operators or third 
parties that assigned screening responsibility to those parties, and 
were concerned that the new regulations could hold them liable as 
terminal owners if the operating party failed to comply with 
regulations. This transfer of liability was not the intent of the rule, 
and the Coast Guard was responsive to these entities' request by adding 
language to sections 104.295 and 105.292 specifying that, if detailed 
in a DoS, terminal owners could meet their regulatory requirements by 
assigning screening responsibility to a cruise ship operator or other 
responsible party. We believe this change fully addresses this concern.
    Other issues raised by local or State authorities concerned 
procedural requirements stemming from the identification of prohibited 
items discovered in secure areas. These issues, which were also raised 
by non-governmental entities, were addressed by including language in 
the text of the regulation at section 105.515(d) that more clearly laid 
out the steps to be taken in the event of a discovery of a prohibited 
item at various stages of the screening process.
    Several governmental entities, most notably the U.S. Virgin 
Islands, were highly concerned about the expansion of the regulation to 
``ports of call.'' In response to these concerns, the Coast Guard 
clarified in section IV.A that the enhanced screening requirements 
applied only to terminals, which are a separate class of facilities. 
This clarifies that the smaller ports of call can continue to conduct 
screening requirements under their current systems.
    Finally, we received a request from one large port authority to add 
more specific training and qualification criteria for cruise ship 
screeners. In the final rule, we declined to adopt this suggestion, 
because we believe that such a ``one size fits all'' approach would be 
impracticable and burdensome considering the wide range of cruise ship 
terminals and ports of call. We note that while not required, larger 
terminals are free to subject their screening personnel to more 
stringent training requirements than required by these regulations.

F. Unfunded Mandates Reform Act

    The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) 
requires

[[Page 12101]]

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 rule will not result in 
such an expenditure, we do discuss the effects of this rule elsewhere 
in this preamble.

G. Taking of Private Property

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

J. Indian Tribal Governments

    This rule does not have tribal implications under Executive Order 
13175, Consultation and Coordination with Indian Tribal Governments, 
because it will 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 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 because it is not a ``significant 
regulatory action'' under Executive Order 12866 and 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.

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 OMB, 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 rule does not add any voluntary consensus standards. Due to 
the nature of cruise ship security operations, performance-based 
standards allow an appropriate degree of flexibility that accommodates 
and is consistent with different terminal sizes and operations. This 
rule will standardize screening activities for all persons, baggage, 
and personal effects at cruise ship terminals to ensure a consistent 
layer of security at terminals throughout the United States. 
Additionally, the Coast Guard consulted with the TSA during the 
development of this rule.

M. Environment

    We have analyzed this 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 (42 U.S.C. 4321-4370f), and have determined that it 
is one of a category of actions that do not individually or 
cumulatively have a significant effect on the human environment. A 
Record of Environmental Consideration (REC) supporting this 
determination is available in the docket where indicated in the 
ADDRESSES section of this preamble. This rule is categorically excluded 
under paragraphs 34(a), regulations which are editorial or procedural; 
34(c), regulations concerning the training, qualifying, licensing, and 
disciplining or maritime personnel; and 34(d), regulations concerning 
the documentation, admeasurement, inspection, and equipment of vessels, 
of the Coast Guard's NEPA Implementing Procedures and Policy for 
Considering Environmental Impacts, COMDTINST M16475.1D, and paragraph 
6(b) of the ``Appendix to National Environmental Policy Act: Coast 
Guard Procedures for Categorical Exclusions'' (67 FR 48243, July 23, 
2002).

List of Subjects

33 CFR Part 101

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

33 CFR Part 104

    Maritime security, Reporting and recordkeeping requirements, 
Security measures, Vessels.

33 CFR Part 105

    Maritime security, Reporting and recordkeeping requirements, 
Security measures.

33 CFR Part 120

    Passenger vessels, Reporting and recordkeeping requirements, 
Security measures, Terrorism.

33 CFR Part 128

    Harbors, Reporting and recordkeeping requirements, Security 
measures, Terrorism.

    For the reasons listed in the preamble, the Coast Guard amends 33 
CFR parts 101, 104, 105, 120, and 128 as follows:

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. In Sec.  101.105, add, in alphabetical order, definitions for the 
terms ``carry-on item'', ``checked baggage'', ``cruise ship terminal'', 
``cruise ship voyage'', ``disembark'', ``embark'', ``explosive 
detection system'', ``high seas'', ``port of call'', ``screener'', and 
``terminal screening program or TSP'' to read as follows:


Sec.  101.105   Definitions.

* * * * *
    Carry-on item means an individual's accessible property, including 
any personal effects that the individual intends to carry onto a vessel 
or facility subject to this subchapter and is therefore subject to 
screening.
* * * * *
    Checked baggage means an individual's personal property tendered by 
or on behalf of a passenger and accepted by a facility or vessel owner 
or operator. This baggage is accessible to the individual after 
boarding the vessel.
* * * * *

[[Page 12102]]

    Cruise ship terminal means any portion of a facility that receives 
a cruise ship or its tenders for initial embarkation or final 
disembarkation.
    Cruise ship voyage means a cruise ship's entire course of travel, 
from the first port at which the vessel embarks passengers until its 
return to that port or another port where the majority of the 
passengers disembark and terminate their voyage. A cruise ship voyage 
may include one or more ports of call.
* * * * *
    Disembark means any time that the crew or passengers leave the 
ship.
* * * * *
    Embark means any time that crew or passengers board the ship, 
including re-boarding at ports of call.
* * * * *
    Explosives detection system means any system, including canines, 
automated device, or combination of devices that have the ability to 
detect explosive material.
* * * * *
    High seas means the waters defined in Sec.  2.32(d) of this 
chapter.
* * * * *
    Port of call means a U.S. port where a cruise ship makes a 
scheduled or unscheduled stop in the course of its voyage and 
passengers are allowed to embark and disembark the vessel or its 
tenders.
* * * * *
    Screener means an individual who is trained and authorized to 
screen or inspect persons, baggage (including carry-on items), personal 
effects, and vehicles for the presence of dangerous substances and 
devices, and other items listed in the vessel security plan (VSP) or 
facility security plan (FSP).
* * * * *
    Terminal screening program or TSP means a written program developed 
for a cruise ship terminal that documents methods used to screen 
persons, baggage, and carry-on items for the presence of dangerous 
substances and devices to ensure compliance with this part.
* * * * *

PART 104--MARITIME SECURITY: VESSELS

0
3. The authority citation for part 104 continues to read as follows:

    Authority: 33 U.S.C. 1226, 1231; 46 U.S.C. Chapter 701; 50 
U.S.C. 191; 33 CFR 1.05-1, 6.04-11, 6.14, 6.16, and 6.19; Department 
of Homeland Security Delegation No. 0170.1.

0
4. In Sec.  104.295, revise paragraphs (a)(1) and (2) to read as 
follows:


Sec.  104.295  Additional requirements -- cruise ships.

    (a) * * *
    (1) Screen all persons, baggage, and personal effects for dangerous 
substances and devices prior to entering the sterile or secure portion 
of a cruise ship in accordance with the qualification, training, and 
equipment requirements of Sec. Sec.  105.530, 105.535, and 105.545 of 
this subchapter.
    (2) The vessel owner or operator may work with the owner or 
operator of each cruise ship terminal or port of call at which that 
vessel embarks or disembarks passengers to meet the requirements of 
this section. The owner or operator of a cruise ship need not duplicate 
any provisions fulfilled by the cruise ship terminal or port of call. 
When a provision is fulfilled by the cruise ship terminal or port of 
call, the applicable section of the Vessel Security Plan must refer to 
that fact.
* * * * *

PART 105--MARITIME SECURITY: FACILITIES

0
5. 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.


0
6. In Sec.  105.225, revise paragraph (b)(1) to read as follows:


Sec.  105.225  Facility recordkeeping requirements.

* * * * *
    (b) * * *
    (1) Training. For training under Sec. Sec.  105.210 and 105.535, 
the date of each session, duration of session, a description of the 
training, and a list of attendees;
* * * * *

0
7. In Sec.  105.290, revise paragraphs (a) and (b) to read as follows:


Sec.  105.290   Additional requirements--cruise ship terminals.

* * * * *
    (a) Screen all persons, baggage, and personal effects for dangerous 
substances and devices in accordance with the requirements in subpart E 
of this part. The owner or operator of a cruise ship terminal need not 
duplicate any provisions fulfilled by the vessel. When a provision is 
fulfilled by a vessel, the applicable section of the terminal security 
program (TSP) must refer to that fact.
    (b) Check the identification of all persons seeking to enter the 
facility in accordance with Sec. Sec.  101.514, 101.515, and 105.255 of 
this subchapter. Persons holding a Transportation Worker Identification 
Credential (TWIC) must be checked as set forth in this part. For 
persons not holding a TWIC, this check includes confirming the 
individual's validity for boarding by examining passenger tickets, 
boarding passes, government identification or visitor badges, or work 
orders;
* * * * *

0
8. Add Sec.  105.292 to read as follows:


Sec.  105.292  Additional requirements--cruise ship ports of call.

    (a) The owner or operator of a cruise ship port of call must work 
with the operator of each cruise ship subject to part 104 of this 
chapter to ensure that passengers are screened for dangerous substances 
and devices in accordance with the qualification, training, and 
equipment requirements of Sec. Sec.  105.530, 105.535, and 105.545. The 
port of call need not duplicate any provisions fulfilled by the vessel. 
When a provision is fulfilled by a vessel, the applicable section of 
the TSP must refer to that fact.
    (b) The owner or operator of a cruise ship port of call must 
display the Prohibited Items List at each screening location.

0
9. In Sec.  105.405, revise paragraphs (a)(17) and (18), reserve 
paragraphs (a)(19) and (20), and add paragraph (a)(21) to read as 
follows:


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

    (a) * * *
    (17) Facility Security Assessment (FSA) report;
    (18) Facility Vulnerability and Security Measures Summary (Form CG-
6025) in Appendix A to part 105; and,
    (19)-(20) [Reserved]
    (21) If applicable, cruise ship TSP in accordance with subpart E of 
this part.
* * * * *

0
10. Add subpart E to part 105 to read as follows:
Subpart E--Facility Security: Cruise Ship Terminals
Sec.
105.500 General.
105.505 Terminal Screening Program (TSP).
105.510 Screening responsibilities of the owner or operator.
105.515 Prohibited Items List (PIL).
105.525 Terminal screening operations.
105.530 Qualifications of screeners.
105.535 Training requirements of screeners.
105.540 Screener participation in drills and exercises.
105.545 Screening equipment.
105.550 Alternative screening.

[[Page 12103]]

Subpart E--Facility Security: Cruise Ship Terminals


Sec.  105.500  General.

    (a) Applicability. The owner or operator of a cruise ship terminal 
must comply with this subpart when receiving a cruise ship or tenders 
from cruise ships.
    (b) Purpose. This subpart establishes cruise ship terminal 
screening programs within the Facility Security Plans to ensure that 
prohibited items are not present within the secure areas that have been 
designated for screened persons, baggage, and personal effects, and are 
not brought onto cruise ships interfacing with the terminal.
    (c) Compliance dates. (1) No later than October 15, 2018, cruise 
ship terminal owners or operators must submit, for each terminal, a 
terminal screening program (TSP) that conforms with the requirements in 
Sec.  105.505 to the cognizant COTP for review and approval.
    (2) No later than April 18, 2019, each cruise ship terminal owner 
or operator must operate in compliance with an approved TSP and this 
subpart.


Sec.  105.505  Terminal Screening Program (TSP).

    (a) General requirements. The owner or operator of a cruise ship 
terminal must ensure a TSP is developed, added to the Facility Security 
Plan (FSP), and implemented. The TSP must--
    (1) Document all procedures that are employed to ensure all 
persons, baggage, and personal effects are screened at the cruise ship 
terminal prior to being allowed into a cruise ship terminal's secure 
areas or onto a cruise ship;
    (2) Be written in English; and
    (3) Be approved by the Coast Guard as part of the FSP in accordance 
with subpart D of this part.
    (b) Availability. Each cruise ship terminal Facility Security 
Officer (FSO) must--
    (1) Maintain the TSP in the same or similar location as the FSP as 
described in Sec.  105.400(d);
    (2) Have an accessible, complete copy of the TSP at the cruise ship 
terminal;
    (3) Have a copy of the TSP available for inspection upon request by 
the Coast Guard;
    (4) Maintain the TSP as sensitive security information (SSI) and 
protect it in accordance with 49 CFR part 1520; and
    (5) Make a copy of the current Prohibited Items List (PIL) publicly 
available. The PIL and copies thereof are not SSI.
    (c) Content. The TSP must include--
    (1) A line diagram of the cruise ship terminal including--
    (i) The physical boundaries of the terminal;
    (ii) The location(s) where all persons intending to board a cruise 
ship, and all personal effects and baggage, are screened; and
    (iii) The point(s) in the terminal beyond which no unscreened 
person may pass.
    (2) The responsibilities of the owner or operator regarding the 
screening of persons, baggage, and personal effects;
    (3) The procedure to obtain and maintain the PIL;
    (4) The procedures used to comply with the requirements of Sec.  
105.530 regarding qualifications of screeners;
    (5) The procedures used to comply with the requirements of Sec.  
105.535 regarding training of screeners;
    (6) The number of screeners needed at each location to ensure 
adequate screening;
    (7) A description of the equipment used to comply with the 
requirements of Sec.  105.525 regarding the screening of individuals, 
their personal effects, and baggage, including screening at increased 
Maritime Security (MARSEC) levels, and the procedures for use of that 
equipment;
    (8) The operation, calibration, and maintenance of any and all 
screening equipment used in accordance with Sec.  105.545;
    (9) The procedures used to comply with the requirements of Sec.  
105.550 regarding the use of alternative screening methods and/or 
equipment, including procedures for passengers and crew with 
disabilities or medical conditions precluding certain screening 
methods; and
    (10) The procedures used when prohibited items are detected.
    (d) As a part of the FSP, the requirements in Sec. Sec.  105.410 
and 105.415 governing submission, approval, amendment, and audit of a 
TSP apply.


Sec.  105.510  Screening responsibilities of the owner or operator.

    In addition to the requirements of Sec.  105.200, the owner or 
operator of a cruise ship terminal must ensure that--
    (a) A TSP is developed in accordance with this subpart, and 
submitted to and approved by the cognizant Captain of the Port (COTP), 
as part of the FSP, in accordance with this part;
    (b) Screening is conducted in accordance with this subpart and an 
approved TSP;
    (c) Specific screening responsibilities are documented in a 
Declaration of Security (DoS) in accordance with Sec. Sec.  104.255 and 
105.245 of this subchapter;
    (d) Procedures are established for reporting and handling 
prohibited items that are detected during the screening process;
    (e) All personal screening is conducted in a uniform, courteous, 
and efficient manner respecting personal rights to the maximum extent 
practicable; and
    (f) When the MARSEC (Maritime Security) level is increased, 
additional screening measures are employed in accordance with an 
approved TSP.


Sec.  105.515  Prohibited Items List (PIL).

    (a) The owner or operator of a cruise ship terminal must obtain 
from the Coast Guard and maintain a Prohibited Items List (PIL) 
consisting of dangerous substances and devices for purposes of Sec.  
105.290(a). The list specifies those items that the Coast Guard 
prohibits all persons from bringing onboard any cruise ship through 
terminal screening operations regulated under 33 CFR part 105.
    (b) Procedures for screening persons, baggage and personal effects 
must include use of the PIL which will be provided to screening 
personnel by the cruise ship terminal owner or operator.
    (c) The list must be present at each screening location during 
screening operations. Additionally, the list must be included as part 
of the DoS.
    (d) Facility personnel must report the discovery of a prohibited 
item introduced by violating security measures at a cruise ship 
terminal as a breach of security in accordance with Sec.  101.305(b) of 
this subchapter. A prohibited item discovered during security screening 
is not considered to be a breach of security, and should be treated in 
accordance with local law enforcement practices.


Sec.  105.525  Terminal screening operations.

    (a) Passengers and personal effects. (1) Each cruise ship terminal 
must have at least one location to screen passengers and carry-on items 
prior to allowing such passengers and carry-on items into secure areas 
of the terminal designated for screened persons and carry-on items.
    (2) Screening locations must be adequately staffed and equipped to 
conduct screening operations in accordance with the approved TSP.
    (3) Facility personnel must check personal identification prior to 
allowing a person to proceed to a screening location, in accordance 
with Sec.  105.290(b), which sets forth additional requirements for 
cruise ship terminals at all MARSEC levels.
    (4) All screened passengers and their carry-on items must remain in 
secure

[[Page 12104]]

areas of the terminal designated for screened persons and personal 
effects until boarding the cruise ship. Persons who leave a secure area 
must be re-screened.
    (b) Persons other than passengers. Crew members, visitors, vendors, 
and other persons who are not passengers, and their personal effects, 
must be screened either at screening locations where passengers are 
screened or at another location that is adequately staffed and equipped 
in accordance with this subpart and is specifically designated in an 
approved TSP.
    (c) Checked baggage. (1) A cruise ship terminal that accepts 
baggage must have at least one location designated for the screening of 
checked baggage.
    (2) Screening personnel may only accept baggage from a person 
with--
    (i) A valid passenger ticket;
    (ii) Joining instructions;
    (iii) Work orders; or
    (iv) Authorization from the terminal or vessel owner or operator to 
handle baggage;
    (3) Screening personnel may only accept baggage in an area 
designated in an approved TSP and manned by terminal screening 
personnel; and
    (4) Screening or security personnel must constantly control the 
checked baggage, in a secure area, from the time it is accepted at the 
terminal until it is onboard the cruise ship.
    (d) Unaccompanied baggage. (1) Facility personnel may accept 
unaccompanied baggage, as defined in Sec.  101.105 of this subchapter, 
only if the Vessel Security Officer (VSO) provides prior written 
approval for the unaccompanied baggage.
    (2) If facility personnel accept unaccompanied baggage at a cruise 
ship terminal, they must handle such baggage in accordance with 
paragraph (c) of this section.


Sec.  105.530  Qualifications of screeners.

    In addition to the requirements for facility personnel with 
security duties contained in Sec.  105.210, screening personnel at 
cruise ship terminals must--
    (a) Have a combination of education and experience that the FSO has 
determined to be sufficient for the individual to perform the duties of 
the position; and
    (b) Be capable of using all screening methods and equipment needed 
to perform the duties of the position.


Sec.  105.535  Training requirements of screeners.

    In addition to the requirements for facility personnel with 
security duties in Sec.  105.210, screening personnel at cruise ship 
terminals must demonstrate knowledge, understanding, and proficiency in 
the following areas as part of their security-related familiarization--
    (a) Historic and current threats against the cruise ship industry;
    (b) Relevant portions of the TSP and FSP;
    (c) The purpose and contents of the cruise ship terminal PIL;
    (d) Specific instruction on screening methods and equipment used at 
the cruise ship terminal;
    (e) Terminal-specific response procedures when a dangerous 
substance or device is detected;
    (f) Additional screening requirements at increased MARSEC levels; 
and,
    (g) Any additional topics specified in the facility's approved TSP.


Sec.  105.540  Screener participation in drills and exercises.

    Screening personnel must participate in drills and exercises 
required under Sec.  105.220.


Sec.  105.545  Screening equipment.

    The following screening equipment may be used, provided it is 
specifically documented in an approved TSP.
    (a) Metal detection devices. (1) The owner or operator of a cruise 
ship terminal may use a metal detection device to screen persons, 
baggage, and personal effects.
    (2) Metal detection devices used at any cruise ship terminal must 
be operated, calibrated, and maintained in accordance with 
manufacturer's instructions.
    (b) X-ray systems. The owner or operator of a cruise ship terminal 
may use an x-ray system for the screening and inspection of personal 
effects and baggage if all of the following requirements are 
satisfied--
    (1) The system meets the standards for cabinet x-ray systems used 
primarily for the inspection of baggage, found in 21 CFR 1020.40;
    (2) Familiarization training for screeners, in accordance with 
Sec.  105.535, includes training in radiation safety and the efficient 
use of x-ray systems;
    (3) The system must meet the imaging requirements found in 49 CFR 
1544.211;
    (4) The system must be operated, calibrated, and maintained in 
accordance with manufacturer's instructions;
    (5) The x-ray system must fully comply with any defect notice or 
modification order issued for that system by the Food and Drug 
Administration (FDA), unless the FDA has advised that a defect or 
failure to comply does not create a significant risk of injury, 
including genetic injury, to any person;
    (6) The owner or operator must ensure that a sign is posted in a 
conspicuous place at the screening location where x-ray systems are 
used to inspect personal effects and where screeners accept baggage. 
These signs must--
    (i) Notify individuals that items are being screened by x-ray and 
advise them to remove all x-ray, scientific, and high-speed film from 
their personal effects and baggage before screening;
    (ii) Advise individuals that they may request screening of their 
photographic equipment and film packages be done without exposure to an 
x-ray system; and
    (iii) Advise individuals to remove all photographic film from their 
personal effects before screening, if the x-ray system exposes any 
personal effects or baggage to more than one milliroentgen during the 
screening.
    (c) Explosives detection systems. The owner or operator of a cruise 
ship terminal may use an explosives detection system to screen baggage 
and personal effects for the presence of explosives if it meets the 
following requirements:
    (1) At locations where x-ray technology is used to inspect baggage 
or personal effects for explosives, the terminal owner or operator must 
post signs in accordance with paragraph (b)(6) of this section.
    (2) All explosives detection equipment used at a cruise ship 
terminal must be operated, calibrated, and maintained in accordance 
with manufacturer's instructions.


Sec.  105.550  Alternative screening.

    If the owner or operator of a U.S. cruise ship terminal chooses to 
screen using equipment or methods other than those described in Sec.  
105.545, the equipment and methods must be described in detail in an 
approved TSP.

PART 120--[REMOVED AND RESERVED]

0
11. Under the authority of 33 U.S.C. 1231, remove and reserve part 120.

PART 128--[REMOVED AND RESERVED]

0
12. Under the authority of 33 U.S.C. 1231, remove and reserve part 128.

    Dated: March 8, 2018.
Jennifer F. Williams,
Captain, U.S. Coast Guard, Director of Inspections and Compliance.
[FR Doc. 2018-05394 Filed 3-16-18; 8:45 am]
 BILLING CODE 9110-04-P