[Federal Register: October 22, 2003 (Volume 68, Number 204)]
[Rules and Regulations]
[Page 60545-60559]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr22oc03-15]
[[Page 60545]]
-----------------------------------------------------------------------
DEPARTMENT OF HOMELAND SECURITY
Coast Guard
33 CFR Part 106
[USCG-2003-14759]
RIN 1625-AA68
Outer Continental Shelf Facility Security
AGENCY: Coast Guard, DHS.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: This final rule adopts, with changes, the temporary interim
rule published on July 1, 2003, that provides security measures for
mobile offshore drilling units (MODUs) not subject to the International
Convention for the Safety of Life at Sea, 1974, and certain fixed and
floating facilities on the Outer Continental Shelf (OCS) other than
deepwater ports. This rule also requires the owners or operators of OCS
facilities to designate security officers for OCS facilities, develop
security plans based on security assessments and surveys, implement
security measures specific to the OCS facility's operation, and comply
with Maritime Security Levels. This rule is one in a series of final
rules on maritime security in today's Federal Register. To best
understand this rule, first read the final rule titled ``Implementation
of National Maritime Security Initiatives'' (USCG-2003-14792),
published elsewhere in today's Federal Register.
DATES: This final rule is effective November 21, 2003. On July 1, 2003,
the Director of the Federal Register approved the incorporation by
reference of certain publications listed in this final rule.
ADDRESSES: Comments and material received from the public, as well as
documents mentioned in this preamble as being available in the docket,
are part of docket USCG-2003-14759 and are available for inspection or
copying at the Docket Management Facility, U.S. Department of
Transportation, room PL-401, 400 Seventh Street SW., Washington, DC,
between 9 a.m. and 5 p.m., Monday through Friday, except Federal
holidays. You may also find this docket on the Internet at http://dms.dot.gov
.
FOR FURTHER INFORMATION CONTACT: If you have questions on this final
rule, call Lieutenant Greg Versaw (G-MPS-2), U.S. Coast Guard by telephone 202-267-4144 or by electronic mail gversaw@comdt.uscg.mil. If
you have questions on viewing the docket, call Andrea M. Jenkins,
Program Manager, Docket Operations, Department of Transportation, at
telephone 202-366-0271.
SUPPLEMENTARY INFORMATION:
Regulatory Information
On July 1, 2003, we published a temporary interim rule with request
for comments and notice of public meeting titled ``Outer Continental
Shelf Facility Security'' in the Federal Register (68 FR 39338). This
temporary interim rule was one of a series of temporary interim rules
on maritime security published in the July 1, 2003, issue of the
Federal Register. On July 16, 2003, we published a document correcting
typographical errors and omissions in that rule (68 FR 41916).
We received a total of 438 letters in response to the six temporary
interim rules by July 31, 2003. The majority of these letters contained
multiple comments, some of which applied to the docket to which the
letter was submitted, and some of which applied to a different docket.
For example, we received several letters in the docket for the
temporary interim rule titled ``Implementation of National Maritime
Security Initiatives'' that contained comments in that temporary
interim rule, plus comments on the ``Outer Continental Shelf Facility
Security'' temporary interim rule. We have addressed individual
comments in the preamble to the appropriate final rule. Additionally,
we had several commenters submit the same letter to all six dockets. We
counted these duplicate submissions as only one letter, and we
addressed each comment within that letter in the preamble for the
appropriate final rule. Because of statutorily imposed time constraints
for publishing these regulations, we were unable to consider comments
received after the period for receipt of comments closed on July 31,
2003.
A public meeting was held in Washington, DC, on July 23, 2003, and
approximately 500 people attended. Comments from the public meeting are
also included in the ``Discussion of Comments and Changes'' section of
this preamble.
In order to focus on the changes made to the regulatory text since
the temporary interim rule was published, we have adopted the temporary
interim rule and set out, in this final rule, only the changes made to
the temporary interim rule. To view a copy of the complete regulatory
text with the changes shown in this final rule, see http://www.uscg.mil/hq/g-m/mp/index.htm
.
Background and Purpose
A summary of the Coast Guard's regulatory initiatives for maritime
security can be found under the ``Background and Purpose'' section in
the preamble to the final rule titled ``Implementation of National
Maritime Security Initiatives'' (USCG-2003-14792), published elsewhere
in this issue of the Federal Register.
Discussion of Comments and Changes
Comments from each of the temporary interim rules and from the
public meeting held on July 23, 2003, have been grouped by topic and
addressed within the preambles to the applicable final rules. If a
comment applied to more than one of the six rules, we discussed it in
the preamble to each of the final rules that it concerned. For example,
discussions of comments that requested clarification or changes to the
Declaration of Security procedures are duplicated in the preambles to
parts 104, 105, and 106. Several comments were submitted to a docket
that included topics not addressed in that particular rule, but were
addressed in one or more of the other rules. This was especially true
for several comments submitted to the docket of part 101 (USCG-2003-
14792). In such cases, we discussed the comments only in the preamble
to each of the final rules that concerned the topic addressed.
Subpart A--General
This subpart contains provisions concerning applicability, waivers,
and other subjects of a general nature applicable to part 106.
Two commenters proposed language to clarify the definition of ``OCS
facility'' to make clear that the term includes Mobile Offshore
Drilling Units (MODUs) when attached to the subsoil or seabed for the
exploration, development, or production of oil or natural gas. One
commenter suggested that this additional language would ``provide
clarification regarding the applicability of'' part 106.
The purpose of the broad definition of ``OCS facility'' in Sec.
101.105 is to ensure that OCS facilities that are not regulated under
part 106 will be covered by parts 101 through 103. The proposed
additional language would not add clarity to part 106 because the
applicability in Sec. 106.105 states that the section applies only to
those MODUs that are operating for the purposes of engaging in the
exploration, development, or production of oil, natural gas, or mineral
resources.
Two commenters suggested amending the definition of ``owner or
operator'' so
[[Page 60546]]
that the definition includes, for OCS facilities: ``the lessee or the
operator designated to act on behalf of the lessee in accordance with
30 CFR part 250.'' One commenter sought clarification of the terms
``owner or operator'' and suggested adding ``operational control is the
ability to influence or control the physical or commercial activities
pertaining to that facility for any period of time.''
We disagree with adding the suggested language of the first
commenter because we have concluded that the person with operational
control is the best person to implement these regulations and,
therefore, should be responsible for implementation. The language
proposed would include a lessee regardless of whether or not that
lessee maintains such operational control. We also disagree with adding
the suggested language of the second comment because it would be
unnecessarily limiting.
Five commenters recommended changes to the definitions of
``facility'' and ``OCS facility'' in Sec. 101.105 in order to clarify
the applicability of parts 104, 105, and 106 to MODUs. Two commenters
suggested adding language to the facility definition to specifically
include MODUs that are not regulated under part 104, consistent with
the definition of OCS facility. Another commenter stated that if we
change the definition to include MODUs not regulated under part 104,
then we also should add an explicit exemption for these MODUs from part
105. Three commenters suggested deleting the words ``fixed or
floating'' and the words ``including MODUs not subject to part 104 of
this subchapter'' in Sec. 106.105 and adding a paragraph to read,
``the requirements of this part do not apply to a vessel subject to
part 104 of this subchapter.''
With regard to the definition of ``facility'' and the suggested
additional language regarding MODUs, the definition clearly
incorporates MODUs that are not covered under part 104 and MODUs that
are sufficiently covered under parts 101 through 103 and 106.
Therefore, we are not amending our definition of facility nor
incorporating the suggested explicit exemption from part 105 because
these MODUs are excluded. We have, however, amended the applicability
section of part 104 (Sec. 104.105) so that foreign flag, non-self
propelled MODUs that meet the threshold characteristics set for OCS
facilities are regulated by 33 CFR part 106, rather than 33 CFR part
104. We have done so because MODUs act and function more like OCS
facilities, have limited interface activities with foreign and U.S.
ports, and their personnel undergo a higher level of scrutiny to obtain
visas to work on the Outer Continental Shelf. These amendments to Sec.
104.105 required us to add a definition for ``cargo vessel'' in Sec.
101.105. With these changes, we believe the existing definitions of
``facility'' and ``OCS facility'' in Sec. 101.105 are sufficient to
conclusively identify those entities that are subject to parts 104,
105, and 106. In addition, the definition of ``OCS facility,'' as
written, ensures that these entities will be subject to relevant
elements of an OCS Area Maritime Security (AMS) Plan. We believe the
language in Sec. 106.105, read in concert with the amended Sec.
104.105(a)(1), and the existing definitions in part 101, is sufficient
to preclude MODUs that are in compliance with part 104 from being
subject to part 106.
We received four comments on the applicability of part 106 to
certain OCS facilities. Three commenters stated that the operating
conditions referenced in Sec. 106.105 should remain as written. A
fourth commenter stated that the size criteria used in Sec. 106.105
contains no support; that the regulations are a duplication of existing
informal security measures; that the regulations do not define
``adequate level of security'' and offer no support that scrutiny of
personnel and cargo will, or has in the past, prevented terrorist
attacks; that the rule imposes a huge paperwork and formal reporting
burden; that training of employees to detect dangerous situations and
devices on facilities located more than 100 miles from shore is
unreasonable; that the security provided by the Declaration of Security
is minimal; that there is no need for the OCS Facility Security
Assessment; and that the OCS Facility Security Plan will offer no
security from exterior threats.
As discussed in the temporary interim rule titled ``Implementation
of National Maritime Security Initiatives'' (68 FR 39250), we
determined the applicability of part 106 for those facilities that may
be involved in a transportation security incident. In developing part
106 and the security measures in it, we deliberately reviewed and
incorporated much of the pre-existing informal security measures to
ensure standardization and minimize the burden to those in industry
that have already voluntarily adopted standards. We have determined
that the security measures in part 106 will reduce the likelihood of a
transportation security incident by increasing the awareness of
security threats to the OCS facility. We believe that the best means of
deterring incidents is to reduce the vulnerabilities of the OCS
facility to a security threat by ensuring that the owner or operator of
that OCS facility increases their vigilance, awareness, and control
over the vessels and persons that interact with the OCS facility. The
OCS Facility Security Assessment and Plan are not envisioned to be the
sole means of deterrence against security incidents. All of the
security plans of the National Maritime Security Initiatives work in
conjunction to reduce the vulnerability of the Marine Transportation
System from various types of attacks originating from air, land, and
sea. We recognize that we impose a requirement for the submission of
assessments and plans to ensure compliance. To reduce the overall
paperwork burden, we allow a single plan to cover multiple OCS
facilities.
After further review of Sec. 106.105 and discussion with the
Minerals Management Service (MMS), we have determined that there may be
OCS facilities acting as ``hubs'' for oil transportation that do not
meet the production characteristics that are regulated under this part.
However, due to unique local conditions, specific intelligence
information, or other identifiable and articulable risk factors, these
``hub'' facilities may be involved in a transportation security
incident. Therefore, on a case-by-case basis, these ``hub'' facility
operations will be reviewed and, if appropriate, a MARSEC Directive
will be issued to address these circumstances.
One commenter asked how OCS facilities not directly regulated under
part 106 would be regulated.
As indicated in Sec. 103.100, all facilities located in waters
subject to the jurisdiction of the U.S. are covered by part 103 and
must comply with the requirements in the AMS Plan, as developed by the
AMS Committee.
Six commenters requested that the Coast Guard establish, without
delay, an AMS Committee for the OCS portion of the Gulf of Mexico as an
essential step in moving the various Federal law enforcement agencies
and industry toward a mutual understanding of the response to a
transportation security incident on the OCS.
We intend to cover the OCS facilities in the Gulf of Mexico by a
single, District-wide AMS Plan. The establishment of an AMS Committee
for the OCS facilities in the Gulf of Mexico was discussed at recent
Gulf Safety Committee and National Offshore Safety Advisory Committee
(NOSAC) meetings. We intend to form an AMS Committee for this area in
the near future. Additionally, owners and operators of OCS facilities
are encouraged to participate on the AMS
[[Page 60547]]
Committee of the COTP zone that is most relevant to their operations.
Twelve commenters questioned our compliance dates. One commenter
stated that because the June 2004 compliance date might not be easily
achieved, the Coast Guard should consider a ``phased in approach'' to
implementation. Four commenters asked us to verify our compliance date
expectations and asked if a facility can ``gain relief'' from these
deadlines for good reasons.
The Maritime Transportation Security Act of 2002 (MTSA) requires
full compliance with these regulations 1 year after the publication of
the temporary interim rules, which were published on July 1, 2003.
Therefore, a ``phased in approach'' will not be allowed. While
compliance dates are mandatory, a vessel or facility owner or operator
could ``gain relief'' from making physical improvements, such as
installing equipment or fencing, by addressing the intended
improvements in the Vessel or Facility Security Plan and explaining the
equivalent security measures that will be put into place until
improvements have been made.
We are amending the dates of compliance in Sec. 106.110(a) and
(b), Sec. 106.115, and Sec. 106.410(a) to align with the MTSA and the
International Ship and Port Facility Security Code (ISPS Code)
compliance dates.
One commenter requested that we clarify Sec. 105.125,
Noncompliance, to ``focus on only those areas of noncompliance that are
the core building blocks of the facility security program'' stating
that the section requires a ``self-report of every minor glitch in
implementation.''
We did not intend for Sec. 105.125 to not require self-reporting
for minor deviations from these regulations if they are corrected
immediately. We have clarified Sec. Sec. 104.125, 105.125, and 106.120
to make it clear that owners or operators are required to request
permission from the Coast Guard to continue operations when temporarily
unable to comply with the regulations.
Two commenters stated that in its control and compliance measures,
the Coast Guard should clarify its legal authority to establish a
security zone beyond its territorial sea.
One basis for the Coast Guard to establish security zones in the
Exclusive Economic Zone (EEZ) is pursuant to the Ports and Waterways
Safety Act, 33 U.S.C. 1221 et seq. For example, consistent with
customary international law, 33 U.S.C. 1226 provides the Coast Guard
with authority to carry out or require measures, including the
establishment of safety and security zones, to prevent or respond to an
act of terrorism against a vessel or public or commercial structure
that is located within the marine environment. 33 U.S.C. 1222 defines
``marine environment'' broadly to include the waters and fishery
resources of any area over which the United States asserts exclusive
fishery management authority. The United States asserts exclusive
fishery management authority in the EEZ.
We received seven comments regarding waivers, equivalencies, and
alternatives. Three commenters appreciated the flexibility of the Coast
Guard in extending the opportunity to apply for a waiver or propose an
equivalent security measure to satisfy a specific requirement. Four
commenters requested detailed information regarding the factors the
Coast Guard will focus on when evaluating applications for waivers,
equivalencies, and alternatives.
The Coast Guard believes that equivalencies and waivers provide
flexibility for vessel and facility owners and operators with unique
operations. Sections 104.130, 105.130, and 106.125 state that vessel or
facility owners or operators requesting waivers for any requirement of
part 104, 105, or 106 must include justification for why the specific
requirement is unnecessary for that particular owner's or operator's
vessel or facility or its operating conditions. Section 101.120
addresses Alternative Security Programs and Sec. 101.130 provides for
equivalencies to security measures. We intend to issue guidance that
will provide more detailed information about the application procedures
and requirements for waivers, equivalencies, and the Alternative
Security Program.
After further review of parts 101 and 104 through 106, we have
amended Sec. Sec. 101.120(b)(3), 104.120(a)(3), 105.120(c), and
106.115(c) to clarify that a vessel or facility that is participating
in the Alternative Security Program must complete a vessel or facility
specific security assessment report in accordance with the Alternative
Security Program, and it must be readily available.
Subpart B--Outer Continental Shelf (OCS) Facility Security Requirements
This subpart describes the responsibilities of the facility owner
or operator and personnel relative to OCS facility security. It
includes requirements for training, drills, recordkeeping, and
Declarations of Security. It identifies specific security measures,
such as those for access control, restricted areas, and monitoring.
Two commenters suggested that the Coast Guard should not regulate
security measures but should establish security guidelines based on
facility type, in essence creating a matrix with ``risk-levels'' and
suggested measures for facility security.
We cannot establish only guidelines because the MTSA and the
International Convention for Safety of Life at Sea, 1974 (SOLAS)
require us to issue regulations. We have provided performance-based,
rather than prescriptive, requirements in these regulations to give
owners or operators flexibility in developing security plans tailored
to vessels' or facilities' unique operations.
One commenter asked who would be ensuring the integrity of security
training and exercise programs.
Since the events of September 11, 2001, the Coast Guard has
developed a directorate responsible for port, vessel, and facility
security. This directorate oversees implementation and enforcement of
the regulations found in parts 101 through 106. Additionally, owners
and operators of vessels and facilities will be responsible for
recordkeeping regarding training, drills, and exercises, and the Coast
Guard will review these records during periodic inspections.
Five commenters supported the Coast Guard in not specifically
defining training methods. Another commenter agrees with the Coast
Guard's position that the owner or operator may certify that the
personnel with security responsibilities are capable of performing the
required functions based upon the competencies listed in the
regulations. Two commenters stated that formal security training for
Facility Security Officers and personnel with security related duties
become mandatory as soon as possible. One commenter stated that they
were concerned with the lack of formal training for Facility Security
Officers.
As we explained in the temporary interim rule (68 FR 39263) (part
101), there are no approved courses for facility personnel and
therefore, we intend to allow Facility Security Officers to certify
that personnel holding a security position have received the training
required to fulfill their security duties. Section 109 of the MTSA
required the Secretary of Transportation to develop standards and
curricula for the education, training, and certification of maritime
security personnel, including Facility Security Officers. The Secretary
delegated that authority to the Maritime
[[Page 60548]]
Administration (MARAD). MARAD has developed model training standards
and curricula for maritime security personnel, including the Facility
Security Officer. In addition, MARAD intends to develop course approval
and certification requirements in the near future.
In the final rule for ``Vessel Security'' published elsewhere in
today's Federal Register we made amendments to the responsibilities of
the Company Security Officer. In this final rule, we are making
conforming amendments to Sec. 106.205(a)(2) to clarify that the
Company Security Officer may also perform the duties of a Facility
Security Officer.
Nine commenters requested formal alternatives to Facility Security
Officers, Company Security Officers, and Vessel Security Officers much
like the requirements of the Oil Pollution Act of 1990, that allow for
alternate qualified individuals.
Parts 104, 105, and 106 provide flexibility for a Company, Vessel,
or Facility Security Officer to assign security duties to other vessel
or facility personnel under Sec. Sec. 104.210(a)(4), 104.215(a)(5),
105.205(a)(3), and 106.210(a)(3). An owner or operator is also allowed
to designate more than one Company, Vessel, or Facility Security
Officer. Because Company, Vessel, or Facility Security Officer
responsibilities are key to security implementation, vessel and
facility owners and operators are encouraged to assign an alternate
Company, Vessel, or Facility Security Officer to coordinate vessel or
facility security in the absence of the primary Company, Vessel, or
Facility Security Officer.
One commenter stated that allowing the Vessel Security Officer and
Facility Security Officer to perform collateral non-security duties is
not an adequate response to risk.
Security responsibilities for the Company, Vessel, and Facility
Security Officers in parts 104, 105, and 106 may be assigned to a
dedicated individual if the owners or operators believe that the
responsibilities and duties are best served by a person with no other
duties.
Forty-one commenters requested that Sec. Sec. 104.225, 105.215,
and 106.220 be either reworded or eliminated because the requirement to
provide detailed security training to all contractors who work in a
vessel or facility or to facility employees, even those with no
security responsibilities such as a secretary or clerk, is impractical,
if not impossible. The commenters stated that, unless a contractor has
specific security duties, a contractor should only need to know how,
when, and to whom to report anything unusual as well as how to react
during an emergency. One commenter suggested adding a new section that
listed specific training requirements for contractors and venders.
The requirements in Sec. Sec. 104.225, 105.215, and 106.220 are
meant to be basic security and emergency procedure training
requirements for all personnel working in a vessel or facility. In most
cases, the requirement is similar to the basic safety training given to
visitors to ensure they do not enter areas that could be harmful. To
reduce the burden of these general training requirements, we allowed
vessel and facility owners and operators to recognize equivalent job
experience in meeting this requirement. However, we believe contractors
need basic security training as much as any other personnel working on
the vessel or facility. Depending on the vessel or facility, providing
basic security training (e.g., how and when to report information, to
whom to report unusual behaviors, how to react during a facility
emergency) could be sufficient. To emphasize this, we have amended
Sec. Sec. 104.225, 105.215, and 106.220 to clarify that the owners or
operators of vessels and facilities must determine what basic security
training requirements are appropriate for their operations.
One commenter agreed with our inclusion of tabletop exercises as a
cost-effective means of exercising the security plan.
Nine commenters stated that companies should be able to take credit
toward fulfilling the drill and exercise requirements for actual
incidents or threats, as under Sec. 103.515.
We agree that, during an increased MARSEC Level, vessel and
facility owners and operators may be able to take credit for
implementing the higher security measures in their security plans.
However, there are cases where a vessel or facility implementing a
Vessel or Facility Security Plan may not attain the higher MARSEC Level
or otherwise not be required to implement sufficient provisions of the
plan to qualify as an exercise. Therefore, we have amended parts 104,
105, and 106 to allow an actual increase in MARSEC Level to be credited
as a drill or an exercise if the increase in MARSEC Level meets certain
parameters. In the case of OCS facilities, this type of credit must be
approved by the Coast Guard in a manner similar to the provision found
in Sec. 103.515 for the AMS Plan requirements.
Two commenters recommended that a sentence be added to the end of
Sec. 105.225(b)(1) that reads: ``Short domain awareness and other
orientation type training that may be given to contractor and other
personnel temporarily at the facility and not involved in security
functions need not be recorded.'' The commenters stated that this
change would eliminate the unnecessary recordkeeping for this general
``domain awareness'' training.
We agree that the recordkeeping requirements in Sec. 105.225 for
training are broad and may capture training that, while necessary, does
not need to be formally recorded. Therefore, we have amended the
requirements in Sec. 105.225(b)(1) to only record training held to
meet Sec. 105.210. We have also made corresponding changes to Sec.
104.235(b)(1) and 106.230(b)(1).
We received 28 comments regarding communication of changes in the
MARSEC Levels. Most commenters were concerned about the Coast Guard's
capability to communicate timely changes in MARSEC Levels to facilities
and vessels. Some stressed the importance of MARSEC Level information
reaching each port area in the COTP's zone and the entire maritime
industry. Some stated that local Broadcast Notice to Mariners and
MARSEC Directives are flawed methods of communication and stated that
the only acceptable means to communicate changes in MARSEC Levels, from
a timing standpoint, are via email, phone, or fax as established by
each COTP.
MARSEC Level changes are generally issued at the Commandant level
and each Marine Safety Office (MSO) will be able to disseminate them to
vessel and facility owners or operators, or their designees, by various
means. Communication of MARSEC Levels will be done in the most
expeditious means available, given the characteristics of the port and
its operations. These means will be outlined in the AMS Plan and
exercised to ensure vessel and facility owners and operators, or their
designees, are able to quickly communicate with us and vice-versa.
Because MARSEC Directives will not be as expeditiously communicated as
other COTP Orders and are not meant to communicate changes in MARSEC
Levels, we have amended Sec. 101.300 to remove the reference to MARSEC
Directives.
Two commenters requested that Sec. 104.240(a) and (b)(1) be
amended to specify that vessels must implement appropriate security
measures before interfacing with facilities that are not located in a
port. We agree that the vessel owner or operator, once notified of a
change in MARSEC Level, must implement appropriate security measures
before interfacing with a
[[Page 60549]]
facility that is not located in a port area. Facilities covered under
part 105 will be within a port; facilities located on the Outer
Continental Shelf, however, may not be included in a port. These OCS
facilities should have similar security provisions to ensure their
security. Therefore, we are amending Sec. 104.240 to ensure that the
vessel owner or operator is required to implement appropriate security
measures in accordance with its Vessel Security Plan before interfacing
with an OCS facility.
We received 14 comments about the length of the effective period of
a continuing Declaration of Security for each MARSEC Level. Five
commenters stated that there is little need to renew a Declaration of
Security every 90 days and that it should instead be part of an annual
review of the Vessel Security Plan. Three commenters stated that the
effective period of MARSEC Level 1 should not exceed 180 days while the
effective period for MARSEC Level 2 should not exceed 90 days. One
commenter noted that a vessel may execute a continuing Declaration of
Security and assumed that this means that a Declaration of Security for
a regular operating public transit system that operates regularly is
good for the duration of the service route. Three commenters
recommended that the effective period for a Declaration of Security be
either 90 days or the term for which a vessel's service to an OCS
facility is contracted, whichever is greater. Two commenters
recommended allowing ferry service operators and facility operators to
enact pre-executed MARSEC Level 2 condition agreements rather than
initiating a new Declaration of Security at every MARSEC Level change.
We disagree with these comments and believe that continuing
Declaration of Security agreements between vessel and facility owners
and operators should be periodically reviewed to respond to the
frequent changes in operations, personnel, and other conditions. We
believe that the Declaration of Security ensures essential security-
related coordination and communication among vessels and facilities.
Renewing a continuing Declaration of Security agreement requires only a
brief interaction between vessel and facility owners and operators to
review the essential elements of the agreement. Additionally, at a
heightened MARSEC Level, that threat must be assessed and a new
Declaration of Security completed. Less frequent review, such as during
an annual or biannual review of the Vessel Security Plan, does not
provide adequate oversight of the Declaration of Security agreement to
ensure all parties are aware of their security responsibilities.
Five commenters requested that Sec. 104.255(c) and (d) be amended
so that a Declaration of Security need not be exchanged when conditions
(e.g., adverse weather) would preclude the exchange of the Declaration
of Security.
We are not amending Sec. 104.255(c) and (d) because as stated in
Sec. 104.205(b), if, in the professional judgment of the Master, a
conflict between any safety and security requirements applicable to the
vessel arises during its operations, the Master may give precedence to
measures intended to maintain the safety of the vessel and take such
temporary security measures as deemed best under all circumstances.
Therefore, if the Declaration of Security between a vessel and facility
could not be safely exchanged, the Master would not need to exchange
the Declaration of Security before the interface. However, under Sec.
104.205(b)(1), (b)(2), and (b)(3), the Master would have to inform the
nearest COTP of the delay in exchanging the Declaration of Security,
meet alternative security measures considered commensurate with the
prevailing MARSEC Level, and ensure that the COTP was satisfied with
the ultimate resolution. In reviewing this provision, we realized that
a similar provision to balance safety and security was not included in
parts 105 or 106. We have amended these parts to give the owners or
operators of facilities the responsibility of resolving conflicts
between safety and security.
Five commenters asked whether a company could have an agreement
with a facility that outlines the responsibilities of all the company's
vessels instead of a separate Declaration of Security for each vessel.
The commenters stated that this would make the Declaration of Security
more manageable for companies, vessels, and facilities that frequently
interface with each other. One commenter raised a similar concern
regarding barges and tugs conducting bunkering operations. One
commenter suggested that Declarations of Security not be required when
the vessels and ``their docking facilities'' share a common owner.
As stated in Sec. Sec. 104.255(e), 105.245(e), and 106.250(e), at
MARSEC Levels 1 and 2, owners or operators may establish continuing
Declaration of Security procedures for vessels and facilities that
frequently interface with each other. These sections do not preclude
owners and operators from developing Declaration of Security procedures
that could apply to vessels and facilities that frequently interface.
However, as stated in Sec. Sec. 104.255(c) and (d) and 106.250(d), at
MARSEC Level 3, all vessels and facilities required to comply with
parts 104, 105, and 106 must enact a Declaration of Security agreement
each time they interface. We believe that, even when under common
ownership, vessels and facilities must coordinate security measures at
higher MARSEC Levels and therefore should execute Declarations of
Security. For MARSEC Level 1, only cruise ships and vessels carrying
Certain Dangerous Cargoes (CDC) in bulk, and facilities that receive
them, even when under common ownership, are required to complete a
Declaration of Security each time they interface.
Two commenters did not support the restriction on the Facility
Security Officer being able to delegate authority to other security
personnel in periods of MARSEC Levels 2 and 3. The commenters suggested
that the Coast Guard use the same language in Sec. 105.245(b), which
allows the Facility Security Officer to delegate authority to a
designated representative to sign and implement a Declaration of
Security at MARSEC Levels 2 and 3.
Section 105.205 allows the Facility Security Officer to delegate
security duties to other facility personnel. This delegation applies to
the authority of the Facility Security Officer to sign and implement a
Declaration of Security at MARSEC Levels 2 and 3. In order to clarify
the regulations, however, we will amend Sec. 105.245(d) to include the
language found in Sec. 105.245(b), allowing the Facility Security
Officer to delegate this authority. We have also made the same change
in Sec. 106.250(d).
Eight commenters stated that there is significant confusion
regarding the requirements to complete Declarations of Security,
especially when dealing with unmanned barges. One commenter asked if a
Declaration of Security is required when an unmanned barge is ``being
dropped'' at a facility or when ``changing tows.''
We agree with the commenter and are amending Sec. Sec. 104.255(c)
and (d), and 106.250(d) to clarify that unmanned barges are not
required to complete a Declaration of Security at any MARSEC Level.
This aligns these requirements with those of Sec. 105.245(d). At
MARSEC Levels 2 and 3, a Declaration of Security must be completed
whenever a manned vessel that must comply with this part is moored to a
facility or for the duration of any vessel-to-vessel activity.
One commenter wanted to know who will become the arbiter in the
event of a disagreement between a vessel and a facility, or between two
vessels, in regards to the Declaration of Security.
[[Page 60550]]
We do not anticipate this will be a frequent problem. The
regulations do not provide for or specify an arbiter in the event that
an agreement cannot be reached for a Declaration of Security. It is
important to note that failure to resolve any such disagreement prior
to the vessel-to-facility interface may result in civil penalties or
other sanctions.
Five commenters suggested that we add language to the requirements
for security systems and equipment maintenance in Sec. Sec. 105.250
and 106.255 to allow facility and OCS facility owners or operators to
develop and follow other procedures which the owner or operator has
found to be more appropriate through experience or other means.
The intent of the security systems and equipment maintenance
requirement is to require the use of the manufacturer's approved
procedures for maintenance. If owners or operators have found other
methods to be more appropriate, they may apply for equivalents
following the procedures in Sec. Sec. 105.135 or 106.130.
Five commenters urged us to exempt OSVs and the facilities or OCS
facilities they interact with from the Declaration of Security
requirements because they do not pose a higher risk to persons,
property, or the environment.
We disagree with the commenters, and we believe that the regulated
vessels and the facilities that they interface with may be involved in
a transportation security incident. In addition, Declarations of
Security ensure essential security-related coordination and
communication among vessels and facilities.
Two commenters asked us to amend Sec. 106.250(f) to clarify that
an expired Declaration of Security (Sec. 106.250(e)(2) or (e)(3)) must
be replaced by a new Declaration of Security, in order for there to be
a valid Declaration of Security.
Although we agree that an expired Declaration of Security must be
replaced by a new Declaration of Security, in order for there to be a
valid Declaration of Security, we believe that Sec. 106.250 needs no
further clarification. We do not preclude an OCS facility from
executing a new Declaration of Security in accordance with Sec.
106.250.
Seven commenters suggested that, instead of requiring disciplinary
measures to discourage abuse of identification systems, the Coast Guard
should merely require companies to develop policies and procedures that
discourage abuse. One commenter opposed provisions of these rules
relating to identification checks of passengers and workers. The
commenter stated that these provisions threaten constitutional rights
to privacy, travel, and association, and are too broad for their
purpose. The commenter argued that identification methods are
inaccurate or unproven and can be abused, and that the costs of
requiring identification checks outweigh the proven benefit.
We recognize the seriousness of the commenters' concerns, but
disagree that provisions for checking passenger and worker
identification should be withdrawn. Identification checks, by
themselves, may not ensure effective access control, but they can be
critically important in attaining access control. Our rules implement
the MTSA and the ISPS Code by requiring vessel and facility owners and
operators to include access control measures in their security plans.
However, instead of mandating uniform national measures, we leave
owners and operators free to choose their own access control measures.
In addition, our rules contain several provisions that work in favor of
privacy. Identification systems must use disciplinary measures to
discourage abuse. Owners and operators can take advantage of rules
allowing for the use of alternatives, equivalents, and waivers.
Passenger and ferry vessel owners or operators are specifically
authorized to develop alternatives to passenger identification checks
and screening. Signage requirements ensure that passengers and workers
will have advance notice of their liability for screening or
inspection. Vessel owners and operators are required to give particular
consideration to the convenience, comfort, and personal privacy of
vessel personnel. Taken as a whole, these rules strike the proper
balance between implementing the MTSA's provisions for deterring
transportation security incidents and preserving constitutional rights
to privacy, travel, and association.
Four commenters asked for amendments to Sec. Sec. 105.255(c)(2)
and 106.260(c)(2) to include coordination with aircraft identification
systems, when practicable, in addition to coordination with vessel
identification systems as a required access control measure.
We agree with the commenters, and have amended Sec. Sec.
105.255(c)(2) and 106.260(c)(2) to reflect this clarification. Most
facilities, including OCS facilities, are accessible by multiple forms
of transportation; therefore, coordination with identification systems
used by those forms of transportation should enhance security.
One commenter asked if the Coast Guard would issue guidelines on
screening.
The Coast Guard intends to coordinate with the Transportation
Security Administration (TSA) and the Bureau of Customs and Border
Protection (BCBP) in publishing guidance on screening to ensure that
such guidance is consistent with intermodal policies and standards of
TSA, and the standards and programs of BCBP for the screening of
international passengers and cargo. Additionally, TSA is developing a
list of items prohibited from being carried on board passenger vessels.
One commenter asked if there is a difference between the terms
``screening'' and ``inspection'' as used in Sec. 104.265(e)(2),
requiring conspicuously posted signs.
In 33 CFR subchapter H, the terms ``screening'' and ``inspection''
fully reflect the types of examinations that may be conducted under
Sec. Sec. 104.265, 105.255, and 106.260. Therefore, both terms are
included to maximize clarity.
Eight commenters suggested that access control on board OCS
facilities only be required when an unscheduled vessel is forced to
discharge passengers for emergency reasons, and that the provisions of
Sec. 105.255 and Sec. 106.260 be the responsibility of the shoreside
facility and the vessel owner. The commenter stated that the need to
duplicate the process at the facility is wasteful. The commenters asked
for amendments to Sec. 105.255 and Sec. 106.260 in order to make
clear that security controls should be established shoreside.
The Coast Guard believes that access control must be established to
ensure that the people on board any vessel or facility are identified
and permitted to be there. We recognize that access control and
personal identification checks at both the shoreside and OCS facility
could be duplicative, and did not intend to require this duplication,
unless needed. Our regulations provide the flexibility to integrate
shoreside screening into OCS facility security measures. We note,
however, that the OCS facility owner or operator retains ultimate
responsibility for ensuring that access control measures are
implemented. This means that where integrated shoreside screening is
implemented, the OCS facility owner or operator should have a means to
verify that the shoreside screening is being done in accordance with
the Facility Security Plan and these regulations. Even if integrated
shoreside screening is arranged, the OCS Facility Security Plan must
also contain access control provisions for vessels or other types of
transportation conveyances that do not regularly call on the OCS
facility or
[[Page 60551]]
might not use the designated shoreside screening process.
We are amending Sec. 104.265(b) to include a verb in the sentence
for clarity. We are also mirroring this clarification in Sec. Sec.
105.255(b) and 106.260(b).
We are amending Sec. 106.265(c) to clarify the requirement by
removing an extraneous word.
Nine commenters were concerned about the designation of restricted
areas. Six commenters requested that the Coast Guard clarify the
wording in Sec. Sec. 104.270(b) and 105.260(b) which states
``Restricted areas must include, as appropriate:'' because it is
contradictory to impose a requirement with the word ``must,'' while
offering the flexibility by stating ``as appropriate.'' One commenter
stated that the provision that allows owners or operators to designate
their entire facility as a restricted area could result in areas being
designated as restricted without any legitimate security reason.
We believe that the current wording of Sec. Sec. 104.270(b),
105.260(b), and 106.265(b) is acceptable. While the word ``must''
requires owners or operators to designate restricted areas, the word
``appropriate'' allows flexibility for owners or operators to restrict
areas that are significant to their operations. The regulations provide
for the entire facility to be designated as a restricted area, whereby
a facility owner or operator would then be required to provide
appropriate security measures to prevent unauthorized access into the
entire facility.
We received ten comments questioning our use of the words
``continuous'' or ``continuously'' in the regulations. Four commenters
requested that we amend language in Sec. 104.245(b) by replacing the
word ``continuous'' with the word ``continual,'' stating that
``continuous'' implies that there must be constant and uninterrupted
communications. One commenter requested that we amend language in Sec.
104.285(a)(1) by replacing the word ``continuously'' with the word
``continually,'' stating that ``continuously'' implies that there must
be constant and uninterrupted application of the security measure. One
commenter requested that we amend language in Sec. 106.275 to replace
the word ``continuously'' with the word ``frequently.'' One commenter
recommended that instead of using the word ``continuously'' in Sec.
105.275, the Coast Guard revise the definition of monitor to mean a
``systematic process for providing surveillance for a facility.'' One
commenter stated that the continuous monitoring requirements in Sec.
106.275 place a significant burden on the owners and operators of OCS
facilities because increased staff levels would be necessary to keep
watch not only in the facility, but also in the surrounding area.
We did not amend the language in Sec. Sec. 104.245(b), 105.235(b),
or 106.240(b) because the sections require that communications systems
and procedures must allow for ``effective and continuous
communications.'' This means that vessel owners or operators must
always be able to communicate, not that they must always be
communicating. Similarly, Sec. Sec. 104.285, 105.275, and 106.275, as
a general requirement, require vessel and facility owners or operators
to have the capability to ``continuously monitor.'' This means that
vessel and facility owners or operators must always be able to monitor.
We have amended Sec. Sec. 104.285(b)(4) and 106.275(b)(4) to use the
word ``continuously'' instead of ``continually'' to be consistent with
Sec. 105.275(b)(1). This general requirement is further refined in
Sec. Sec. 104.285, 105.275, and 106.275, in that the Vessel and
Facility Security Plans must detail the measures sufficient to meet the
monitoring requirements at the three MARSEC Levels.
One commenter stated that the provision to mandate restricted areas
on board OCS facilities should be removed from the rule, arguing that
limiting access during an emergency should not be tolerated.
If the security assessment and plan for the OCS facility does not
take into account access to restricted areas during an emergency
situation, it may hinder effective response. Therefore, we have
included several provisions to ensure that the security assessment and
plan for the OCS facility address this issue, such as in Sec. Sec.
106.205(d)(10), 106.280(b), and 106.305(c)(1)(vii).
One commenter suggested that this regulation contain provisions to
allow vessels to continue fishing in or around OCS facilities. The
commenter was concerned that any effort to prevent access to areas
around these facilities would cause severe economic hardship to a large
number of charterboat businesses.
The security regulations do not contain any provisions that
specifically restrict fishing around OCS facilities. The OCS facility
owner or operator may, however, restrict some areas as part of the
facility's security measures. We do not believe that part 106 will
cause a hardship for vessels that fish around OCS facilities because
part 106 regulates only approximately 1 percent of all those facilities
and because such restricted areas will likely be designated only during
periods of heightened security.
Two commenters encouraged the formal training of Coast Guard Port
State Control officers in enforcing these regulations to include the
details of security systems and procedures, security equipment, and the
elements of knowledge required of the Vessel Security Officer and
Facility Security Officer.
The Coast Guard conducts comprehensive training of its personnel
involved in ensuring the safety and security of facilities and
commercial vessels. We continually update our curriculum to encompass
new requirements, such as the Port State Control provisions of the ISPS
Code. This training, however, is beyond the scope of this final rule.
Subpart C--Outer Continental Shelf (OCS) Facility Security Assessment
(FSA)
This subpart describes the content and procedures for Facility
Security Assessments.
We received 22 comments pertaining to sensitive security
information and its disclosure. Twelve commenters requested that the
Coast Guard delete the requirements that the Facility Security
Assessment or Vessel Security Assessment be included in the submission
of the Facility Security Plan or Vessel Security Plan respectively,
stating that the security assessments are of such a sensitive nature
that risk of disclosure is too great. Four commenters stated that the
form CG-6025 ``Facility Vulnerability and Security Measures Summary''
should be sufficient for the needs of the Coast Guard and would promote
facility security. Two commenters stated that there are too many ways
for the general public to gain access to sensitive security
information. One commenter stated that it was not clear how the Coast
Guard would safeguard sensitive security information. One commenter
stated that training for personnel in parts of the Facility Security
Plan should not require access to the Facility Security Assessment.
Sections 104.405, 105.405, and 106.405 require that the security
assessment report be submitted with the respective security plans. We
believe that the security assessment report must be submitted as part
of the security plan approval process because it is used to determine
if the security plan adequately addresses the security requirements of
the regulations. The information provided in form CG-6025 will be used
to assist in the
[[Page 60552]]
development of AMS Plans. The security assessments are not required to
be submitted. To clarify that the report, not the assessment, is what
must be submitted with the Vessel or Facility Security Plan, we are
amending Sec. 104.305 to add the word ``report'' where appropriate. We
have also amended Sec. Sec. 105.305 and 106.305 for facilities and OCS
facilities, respectively. Additionally we have amended these sections
so that the Facility Security Assessment report requirements mirror the
Vessel Security Assessment report requirements. All of these
requirements were included in our original submission to OMB for
``Collection of Information'' approval, and there is no associated
increase in burden in our collection of information summary. We also
acknowledge that security assessments and security assessment reports
have sensitive security information within them, and that they should
be protected under Sec. Sec. 104.400(c), 105.400(c), and 106.400(c).
We are also amending Sec. Sec. 104.305, 105.305, and 106.305 to
clarify that all security assessments, security assessment reports, and
security plans need to be protected from unauthorized disclosure. The
Coast Guard has already instituted measures to protect sensitive
security information, such as security assessment reports and security
plans, from disclosure.
Ten commenters addressed the disclosure of security plan
information. One commenter seemed to advocate making security plans
public. One commenter was concerned that plans will be disclosed under
the Freedom of Information Act (FOIA). One commenter requested that
mariners and other employees whose normal working conditions are
altered by a Vessel or Facility Security Plan be granted access to
sensitive security information contained in that plan on a need-to-know
basis. One commenter stated that Company Security Officers and Facility
Security Officers should have reasonable access to AMS Plan information
on a need-to-know basis. One commenter stated that the Federal
government must preempt State law in instances of sensitive security
information because of past experience with State laws that require
full disclosure of public documents. Three commenters supported our
conclusion that the MTSA and our regulations preempt any conflicting
State requirements. Another commenter is particularly pleased to
observe the strong position taken by the Coast Guard in support of
Federal preemption of possible State and local security regimes. One
commenter supported our decision to designate security assessments and
plans as sensitive security information.
Portions of security plans are sensitive security information and
must be protected in accordance with 49 CFR part 1520. Only those
persons specified in 49 CFR part 1520 will be given access to sensitive
security information portions of the security plans. In accordance with
49 CFR part 1520 and pursuant to 5 U.S.C. 552(b)(3), sensitive security
information is exempt from disclosure under FOIA. However, Sec. Sec.
104.220, 104.225, 105.210, 105.215, 106.215, and 106.220 of these rules
state that vessel and facility personnel must have knowledge of
relevant provisions of the security plan. Therefore, vessel and
facility owners or operators will determine which provisions of the
security plans are accessible to crewmembers and other personnel.
Additionally, COTPs will determine what portions of the AMS Plan are
accessible to Company or Facility Security Officers.
Information designated as sensitive security information is
generally exempt under FOIA, and TSA has concluded that State
disclosure laws that conflict with 49 CFR part 1520 are preempted by
that regulation. 46 U.S.C. 70103(d) also provides that the information
developed under this regulation is not required to be disclosed to the
public.
Two commenters stated that our regulations suggest that information
designated as sensitive security information is exempt from FOIA. One
commenter suggested that all documentation submitted under this rule be
done pursuant to the Homeland Security Act of 2002, to afford a more
legally definite protection against disclosure.
``Sensitive security information'' is a designation mandated by
regulations promulgated by TSA and may be found in 49 CFR part 1520.
These regulations state that information designated as sensitive
security information may not be shared with the general public. FOIA
exempts from its mandatory release provisions those items that other
laws forbid from public release. Thus, security assessments, security
assessment reports, and security plans, which should be designated as
sensitive security information, are all exempt from release under FOIA.
Four commenters requested that the Company and the Facility
Security Officers be given access to the ``vulnerability assessment''
done by the COTP to facilitate the development of the Facility Security
Plan and ensure that the Facility Security Plan does not conflict with
the AMS Plan.
The AMS Assessments directed by the Coast Guard are broader in
scope than the required Facility Security Assessments. The AMS
Assessment is used in the development of the AMS Plan, and it is a
collaborative effort between Federal, State, Indian Tribal and local
agencies as well as vessel and facility owners and other interested
stakeholders. The AMS Assessments are sensitive security information.
Access to these assessments, therefore, is limited under 49 CFR part
1520 to those persons with a legitimate need-to-know (e.g., Facility
Security Officers who need to align Facility Security Plans with the
AMS Plan, may be deemed to have need to know sensitive security
information). In addition, the potential conflicts between security
plans and the AMS Plan will be identified during the Facility Security
Plan approval process.
Six commenters suggested that a template for security assessments
and plans be provided for affected entities. One commenter specifically
asked for guidance templates for barge fleeting facilities.
We intend to develop guidelines for the development of security
assessments and plans. Additionally, the regulations allow owners and
operators of facilities and vessels to implement Alternative Security
Programs. This would allow owners and operators to participate in a
development process with other industry groups, associations, or
organizations. We anticipate that one such Alternative Security Program
will include a template for barge fleeting facilities.
One commenter asked for clarification of the terms ``self
assessments,'' ``security assessments,'' ``risk/threat assessments,''
and ``on-scene surveys.''
Risk/threat assessments and self assessments are not specifically
defined in the regulations, but refer to the general practices of
assessing where a vessel or facility is at risk. The assessments
required in parts 104 through 106 must take into account threats,
consequences, and vulnerabilities; therefore, they are most
appropriately titled ``security assessments.'' This title also aligns
with the ISPS Code. To clarify that Sec. Sec. 101.510 and 105.205
address security assessments required by subchapter H, we have amended
these sections to change the term ``risk'' to the more accurate term
``security.'' ``On-scene surveys'' are explained in the security
assessment requirements of parts 104, 105, and 106. As explained in
Sec. 104.305(b), for example, the purpose of an on-scene survey is to
``verify or
[[Page 60553]]
collect information'' required to compile background information and
``consists of an actual survey that examines and evaluates existing
vessel protective measures, procedures, and operations.'' An on-scene
survey is part of a security assessment.
One commenter stated that if a Facility Security Assessment
determines a threat that is outside the scope of what is appropriate to
include in the Facility Security Plan, the threat should be included as
part of the AMS Plan.
We agree with the commenter. The AMS Plan is more general in nature
and takes into account those threats that may affect the entire port,
or a segment of the port. As such, the AMS Plan should be designed to
take into account those threats that are larger in scope than those
threats that should be considered for individual facilities. To focus
the Facility Security Assessments on their port interface rather than
the broader requirement, we have amended Sec. Sec.
105.305(c)(2)(viii), (ix) and 106.305 (c)(2)(v) to reflect that the
assessment of the facility should take into consideration the use of
the facility as a transfer point for a weapon of mass destruction and
the impact of a vessel blocking the entrance to or area surrounding a
facility.
We received four comments regarding the use of third party
companies to conduct security assessments. Two commenters asked if we
will provide a list of acceptable assessment companies because of the
concern that the vulnerability assessment could ``fall into the wrong
hands.'' One commenter requested that the regulations define
``appropriate skills'' that a third party must have in order to aid in
the development of security assessments. One commenter stated that the
person or company conducting the assessment might not be reliable.
We will not be providing a list of acceptable assessment companies,
nor will we define ``appropriate skills.'' It is the responsibility of
the vessel or facility owner or operator to vet companies that assist
them in their security assessments. In the temporary interim rule (68
FR 39254) (part 101), we stated, ``we reference ISPS Code, part B,
paragraph 4.5, as a list of competencies all owners and operators
should use to guide their decision on hiring a company to assist with
meeting the regulations. We may provide further guidance on
competencies for maritime security organizations, as necessary, but do
not intend to list organizations, provide standards within the
regulations, or certify organizations.'' We require security
assessments to be protected from unauthorized disclosures and will
enforce this requirement, including through the penalties provision
under Sec. 101.415.
After further review of subpart C of parts 104, 105, and 106, we
are amending Sec. Sec. 104.310, 105.310, and 106.310 to state that the
security assessment must be reviewed and updated each time the security
plan is revised and when the security plan is submitted for reapproval.
Two commenters asked for clarification regarding the reference to
Sec. 105.415, ``Amendment and audit,'' found in Sec. 105.310(a).
We reviewed Sec. 105.310(a) and have corrected the reference to
read ``Sec. 105.410.'' We meant for the Facility Security Assessment
report to be included with the Facility Security Plan when that plan is
submitted to the Coast Guard for approval under Sec. 105.410. We are
also amending Sec. Sec. 105.415 and 106.310 to make similar
corrections to references.
Subpart D--Outer Continental Shelf (OCS) Facility Security Plan (FSP)
This subpart describes the content, format, and processing for
Facility Security Plans.
One commenter recommended that the interval for audits of the OCS
Facility Security Plan be changed to biennial to be consistent with the
audit requirements for emergency response plans.
The annual audit certifies that the OCS Facility Security Plan
continues to meet the applicable requirements of part 106. We believe
that annual audits are necessary because the OCS Facility Security
Plan, as a living document, should be continuously updated to
incorporate changes or lessons learned from drills and exercises.
Three commenters recommended that this rule be amended to close
``the gap'' in the plan-approval process to address the period of time
between December 29, 2003, and July 1, 2004. Another commenter
suggested submitting the Facility Security Plan for review and approval
for a new facility ``within six months of the facility owner or
operator's intent of operating it.''
We agree that the regulations do not specify plan-submission lead
time for vessels, facilities, and OCS facilities that come into
operation after December 29, 2003, and before July 1, 2004. The owners
or operators of such vessels, facilities, and OCS facilities are
responsible for ensuring they have the necessary security plans
submitted and approved by July 1, 2004, if they intend to operate. We
have amended Sec. Sec. 104.410, 105.410, and 106.410 to clarify the
plan-submission requirements for the various dates before July 1, 2004,
and after this date.
Thirty commenters commended the Coast Guard for providing an option
for an Alternative Security Program as described in Sec. 101.120(b)
and urged the Coast Guard to approve these programs as soon as
possible.
We believe the provisions in Sec. 101.120(b) will provide greater
flexibility and will help owners and operators meet the requirements of
these rules. We will review Alternative Security Program submissions in
a timely manner to determine if they comply with the security
regulations for their particular segment. Additionally, we have amended
Sec. Sec. 104.410(a)(2), 105.115(a), 105.410(a)(2), 106.110(a), and
106.410(a)(2), to clarify the submission requirements for the
Alternative Security Program.
After further review of the ``Submission and approval''
requirements in Sec. Sec. 101.120, 104.410, 105.410, and 106.410, we
have amended the requirements to clarify that security plan submissions
can be returned for revision during the approval process.
We received 15 comments about the process of amending and updating
the security plans. Five commenters requested that they be exempted
from auditing whenever they make minimal changes to the security plans.
Two commenters stated that it should not be necessary to conduct both
an amendment review and a full audit of security plans upon a change in
ownership or operational control. Three commenters requested a de
minimis exemption to the requirement that security plans be audited
whenever there are modifications to the vessel or facility. Seven
commenters stated that the rule should be revised to allow the
immediate implementation of security measures without having to propose
an amendment to the security plans at least 30 days before the change
is to become effective. The commenters stated that there is something
``conceptually wrong'' with an owner or operator having to submit
proposed amendments to security plans for approval when the amendments
are deemed necessary to protect vessels or facilities.
The regulations require that upon a change in ownership of a vessel
or facility, the security plan must be audited and include the name and
contact information of the new owner or operator. This will enable the
Coast Guard to have the most current contact information. Auditing the
security plan is required to ensure that any changes in personnel or
operations made by the new owner or operator do not conflict with the
approved security plan. The
[[Page 60554]]
regulations state that the security plan must be audited if there have
been significant modifications to the vessel or facility, including,
but not limited to, their physical structure, emergency response
procedures, security measures, or operations. These all represent
significant modifications. Therefore, we are not going to create an
exception in the regulation. We recognize that the regulations
requiring that proposed amendments to security plans be submitted for
approval 30 days before implementation could be construed as an
impediment to taking necessary security measures in a timely manner.
The intent of this requirement is to ensure that amendments to the
security plans are reviewed to ensure they are consistent with and
supportable by the security assessments. It is not intended to be, nor
should it be, interpreted as precluding the owner or operator from the
timely implementation of additional security measures above and beyond
those enumerated in the approved security plan to address exigent
security situations. Accordingly we have amended Sec. Sec. 104.415,
105.415, and 106.415 to add a clause that allows for the immediate
implementation of additional security measures to address exigent
security situations.
Additional Changes
During our review of this part, we noted that a section required a
non-substantive editorial change, such as accurately completing a list.
The section is Sec. 106.275(a)(1). In addition, the part heading in
this part has been amended to align with all the part headings within
this subchapter.
Regulatory Assessment
This final rule is a ``significant regulatory action'' under
section 3(f) of Executive Order 12866, Regulatory Planning and Review.
The Office of Management and Budget has reviewed it under that Order.
It requires an assessment of potential costs and benefits under section
6(a)(3) of that Order. It is significant under the regulatory policies
and procedures of the Department of Homeland Security. A final
assessment is available in the docket as indicated under ADDRESSES. A
summary of the comments on the assessment, our responses, and a summary
of the assessment follow.
One commenter suggested taking into greater account the risk
factors of the facility and vessel as a whole, rather than simply
relying on one factor, such as the capacity of a vessel as well as the
cost-benefit of facility security to all of the business entities that
make up a facility.
The Coast Guard considered an extensive list of risk factors when
developing these regulations including, but not limited to, vessel and
facility type, the nature of the commerce in which the entity is
engaged, potential trade routes, accessibility of facilities, gross
tonnage, and passenger capacity. Our Cost Assessments and Regulatory
Flexibility Act Analyses for both the temporary interim rules and the
final rules are available in the docket, and they account for companies
as whole business entities, not individual vessels or facilities.
Cost Assessment
For the purposes of good business practice or pursuant to
regulations promulgated by other Federal and State agencies, many
companies already have spent a substantial amount of money and
resources to upgrade and improve security. The costs shown in this
assessment do not include security measures these companies have
already taken to enhance security. Because the changes in this final
rule do not affect the original cost estimates presented in the
temporary interim rule (68 FR 39341) (part 106), the costs remain
unchanged.
The Coast Guard realizes that every company engaged in maritime
commerce will not implement this final rule exactly as presented in the
assessment. Depending on each company's choices, some companies could
spend much less than what is estimated herein while others could spend
significantly more. In general, the Coast Guard assumes that each
company will implement this final rule differently based on the types
of OCS facilities it owns or operates and whether it engages in
international or domestic trade.
This final rule will affect about 40 OCS facilities under U.S.
jurisdiction, (current and future OCS facilities). These OCS facilities
engage in exploring for, developing, or producing oil, natural gas, or
mineral resources. To determine the number of OCS facilities, we used
data that the Mineral Management Service (MMS) has identified as
nationally critical OCS oil and gas infrastructure. These OCS
facilities meet or exceed any of the following operational threshold
characteristics:
(1) OCS facility hosts more than 150 persons for 12 hours or more
in each 24-hour period continuously for 30 days or more;
(2) Production greater than 100,000 (one hundred thousand) barrels
of oil per day; or
(3) Production greater than 200,000,000 (two hundred million) cubic
feet of natural gas per day.
The estimated cost of complying with the final rule is present
value $37 million (2003-2012, 7 percent discount rate). In the first
year of compliance, the cost of security assessments and plans,
training, personnel, and paperwork is an estimated $3 million (non-
discounted). Following initial implementation, the annual cost of
compliance is an estimated $5 million (non-discounted).
Approximately 80 percent of the initial cost of the final rule is
for assigning and establishing Company Security Officers and Facility
Security Officers, 12 percent is associated with paperwork creating
Facility Security Assessments and Facility Security Plans, and 8
percent of the cost is associated with initial training (not including
quarterly drills). Following the first year, approximately 58 percent
of the cost is training (including quarterly drills), 42 percent is for
Company Security Officers and Facility Security Officers, and less than
1 percent is associated with paperwork. Annual training (including
quarterly drills) is the primary cost driver of OCS facility security.
We estimated approximately 3,200 burden hours for paperwork during
the first year of compliance (40 hours for each Facility Security
Assessment and each Facility Security Plan). We estimated approximately
160 burden hours annually following full implementation of the final
rule to update Facility Security Assessments and Facility Security
Plans.
We estimated the cost of this final rule to be minimal in
comparison to vessel and non-OCS facility security implementation. This
final rule includes only personnel, training, and paperwork costs for
the affected OCS facility population. We assume the industry is
adequately prepared with equipment suited to be used for security
purposes (lights, radios, communications), therefore no security
equipment installation, upgrades, or maintenance will be required for
this final rule.
Benefit Assessment
This final rule is one of six final rules that implement national
maritime security initiatives concerning General Provisions, Area
Maritime Security, Vessels, Facilities, OCS Facilities, and AIS. The
Coast Guard used the National Risk Assessment Tool (N-RAT) to assess
benefits that would result from increased security for vessels,
facilities, OCS facilities, and areas. The N-RAT considers threat,
vulnerability, and consequences for several maritime
[[Page 60555]]
entities in various security-related scenarios. For a more detailed
discussion on the N-RAT and how we employed this tool, refer to
``Applicability of National Maritime Security Initiatives'' in the
temporary interim rule titled ``Implementation of National Maritime
Security Initiatives'' (68 FR 39243) (part 101). For this benefit
assessment, the Coast Guard used a team to calculate a risk score for
each entity and scenario before and after the implementation of
required security measures. The difference in before and after scores
indicated the benefit of the proposed action.
We recognized that the final rules are a ``family'' of rules that
will reinforce and support one another in their implementation. We have
ensured, however, that risk reduction that is credited in one rule is
not also credited in another. For a more detailed discussion on the
benefit assessment and how we addressed the potential to double-count
the risk reduced, refer to ``Benefit Assessment'' in the temporary
interim rule titled ``Implementation of National Maritime Security
Initiatives'' (68 FR 39274) (part 101).
The Coast Guard determined annual risk points reduced for each of
the final rules using the N-RAT. The benefits are apportioned among the
Vessel, Facility, OCS Facility, AMS, and AIS requirements. As shown in
Table 1, the implementation of OCS facility security for the affected
population reduces 13,288 risk points annually through 2012. The
benefits attributable for part 101, General Provisions, were not
considered separately because it is an overarching section for all the
parts.
Table 1.--Annual Risk Points Reduced by the Final Rules
----------------------------------------------------------------------------------------------------------------
Annual risk points reduced by final rule
-------------------------------------------------------------------------------
Maritime entity Vessel Facility OCS facility
security security security AMS AIS
----------------------------------------------------------------------------------------------------------------
Vessels......................... 778,633 3,385 3,385 3,385 1,317
Facilities...................... 2,025 469,686 .............. 2,025 ..............
OCS Facilities.................. 41 .............. 9,903 .............. ..............
Port Areas...................... 587 587 .............. 129,792 105
-----------------
Total....................... 781,285 473,659 13,288 135,202 1,422
----------------------------------------------------------------------------------------------------------------
Once we determined the annual risk points reduced, we discounted
these estimates to their present value (7 percent discount rate, 2003-
2012) so that they could be compared to the costs. We presented the
cost effectiveness, or dollars per risk point reduced, in two ways:
First, we compared the first-year cost and first-year benefit because
first-year cost is the highest in our assessment as companies develop
security plans and purchase equipment. Second, we compared the 10-year
present value cost and the 10-year present value benefit. The results
of our assessment are presented in Table 2.
Table 2.--First-Year and 10-Year Present Value Cost and Benefit of the Final Rules
----------------------------------------------------------------------------------------------------------------
Final rule
-------------------------------------------------------------------------------
Item Vessel Facility OCS facility
security security security AMS AIS\*\
----------------------------------------------------------------------------------------------------------------
First-year cost (millions)...... $218 $1,125 $3 $120 $30
First-year benefit.............. 781,285 473,659 13,288 135,202 1,422
First-year cost effectiveness ($/ 279 2,375 205 890 21,224
risk point reduced)............
10-Year present value cost 1,368 5,399 37 477 26
(millions).....................
10-Year present value benefit... 5,871,540 3,559,655 99,863 1,016,074 10,687
10-Year present value cost 233 1,517 368 469 2,427
effectiveness ($/risk point
reduced).......................
----------------------------------------------------------------------------------------------------------------
\*\Cost less monetized safety benefit.
Small Entities
Under the Regulatory Flexibility Act (5 U.S.C. 601-612), the Coast
Guard has considered whether this final rule would have a significant
economic impact on a substantial number of small entities. The term
``small entities'' comprises small businesses, not-for-profit
organizations that are independently owned and operated and are not
dominant in their fields, and governmental jurisdictions with
populations of less than 50,000. The Coast Guard has reviewed this
final rule for potential economic impacts on small entities. A Final
Regulatory Flexibility Analysis discussing the impact of this final
rule on small entities is available in the docket where indicated under
ADDRESSES.
There are approximately 40 total current and future OCS facilities
owned by five large companies that will be affected by this final rule.
Depending on how the corporate headquarters' operation is classified
and whether it is oil or gas specific, these companies are generally
classified under the North American Industry Classification System
(NAICS) code 211111 or 221210. According to the Small Business
Administration guidelines for these industries, a company with less
than 500 total corporate employees is considered a small entity. The
entities affected by this final rule do not qualify as small entities
because all of them have more than 500 employees.
Therefore, the Coast Guard certifies under 5 U.S.C. 605(b) that
this final rule will not have a significant economic impact on a
substantial number of small entities.
Assistance for Small Entities
Under section 213(a) of the Small Business Regulatory Enforcement
Fairness Act of 1996 (Pub. L. 104-121),
[[Page 60556]]
we offered to assist small entities in understanding the rule so that
they could better evaluate its effects on them and participate in the
rulemaking. We provided small entities with a name, phone number, and
e-mail address to contact if they had questions concerning the
provisions of the final rules or options for compliance.
We have placed Small Business Compliance Guides in the dockets for
the Area Maritime, Vessel, and Facility Security and the AIS rules.
These Compliance Guides will explain the applicability of the
regulations, as well as the actions small businesses will be required
to take in order to comply with each respective final rule. We have not
created Compliance Guides for part 101 or for the OCS Facility Security
final rule, as neither will affect a substantial number of small
entities.
Small businesses may send comments on the actions of Federal
employees who enforce, or otherwise determine compliance with, Federal
regulations to the Small Business and Agriculture Regulatory
Enforcement Ombudsman and the Regional Small Business Regulatory
Fairness Boards. The Ombudsman evaluates these actions annually and
rates each agency's responsiveness to small business. If you wish to
comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR
(1-888-734-3247).
Collection of Information
This final rule contains no new collection of information
requirements under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-
3520). As defined in 5 CFR 1320.3(c), ``collection of information''
comprises reporting, recordkeeping, monitoring, posting, labeling, and
other similar actions. The final rules are covered by two existing OMB-
approved collections--1625-0100 [formerly 2115-0557] and 1625-0077
[formerly 2115-0622].
We received comments regarding collection of information; these
comments are discussed within the ``Discussion of Comments and
Changes'' section of this preamble. You are not required to respond to
a collection of information unless it displays a currently valid OMB
control number. We received OMB approval for these collections of
information on June 16, 2003. They are valid until December 31, 2003.
Federalism
Executive Order 13132 requires the Coast Guard to develop an
accountable process to ensure ``meaningful and timely input by State
and local officials in the development of regulatory policies that have
federalism implications.'' ``Policies that have federalism
implications'' is defined in the Executive Order to include regulations
that have ``substantial direct effects on the States, on the
relationship between the national government and the States, or on the
distribution of power and responsibilities among the various levels of
government.'' Under the Executive Order, the Coast Guard may construe a
Federal statute to preempt State law only where, among other things,
the exercise of State authority conflicts with the exercise of Federal
authority under the Federal statute.
This action has been analyzed in accordance with the principles and
criteria in the Executive Order, and it has been determined that this
final rule does have Federalism implications and a substantial direct
effect on the States. This final rule requires those States that own or
operate vessels or facilities that may be involved in a transportation
security incident to conduct security assessments of their vessels and
facilities and to develop security plans for their protection. These
plans must contain measures that will be implemented at each of the
three MARSEC Levels and must be reviewed and approved by the Coast
Guard.
Additionally, the Coast Guard has reviewed the MTSA with a view to
whether we may construe it as non-preemptive of State authority over
the same subject matter. We have determined that it would be
inconsistent with the federalism principles stated in the Executive
Order to construe the MTSA as not preempting State regulations that
conflict with the regulations in this final rule. This is because
owners or operators of facilities and vessels-that are subject to the
requirements for conducting security assessments, planning to secure
their facilities and vessels against threats revealed by those
assessments, and complying with the standards, both performance and
specific construction, design, equipment, and operating requirements--
must have one uniform, national standard that they must meet. Vessels
and shipping companies, particularly, would be confronted with an
unreasonable burden if they had to comply with varying requirements as
they moved from State to State. Therefore, we believe that the
federalism principles enumerated by the Supreme Court in U.S. v. Locke,
529 U.S. 89 (2000) regarding field preemption of certain State vessel
safety, equipment, and operating requirements extends equally to this
final rule, especially regarding the longstanding history of
significant Coast Guard maritime security regulation and control of
vessels for security purposes. But, the same considerations apply to
facilities, at least insofar as a State law or regulation applicable to
the same subject for the purpose of protecting the security of the
facility would conflict with a Federal regulation; in other words, it
would either actually conflict or would frustrate an overriding Federal
need for uniformity.
Finally, it is important to note that the regulations implemented
by this final rule bear on national and international commerce where
there is no constitutional presumption of concurrent State regulation.
Many aspects of these regulations are based on the U.S. international
treaty obligations regarding vessel and port facility security
contained in SOLAS and the complementary ISPS Code. These international
obligations reinforce the need for uniformity regarding maritime
commerce.
Notwithstanding the foregoing preemption determinations and
findings, the Coast Guard has consulted extensively with appropriate
State officials, as well as private stakeholders during the development
of this final rule. For these final rules, we met with the National
Conference of State Legislatures (NCSL) Taskforce on Protecting
Democracy on July 21, 2003, and presented briefings on the temporary
interim rules to the NCSL's Transportation Committee on July 23, 2003.
We also briefed several hundred State legislators at the American
Legislative Exchange Council on August 1, 2003. We held a public
meeting on July 23, 2003, with invitation letters to all State homeland
security representatives. A few State representatives attended this
meeting and submitted comments to a public docket prior to the close of
the comment period. The State comments to the docket focused on a wide
range of concerns including consistency with international requirements
and the protection of sensitive security information.
Other concerns raised by the NCSL at the briefings mentioned above
included questions on how the Coast Guard will enforce security
standards on foreign flag vessels and how multinational crewmember
credentials will be checked.
We are using the same cooperative arrangement that we have used
with success in the safety realm by accepting SOLAS certificates
documenting flag-state approval of foreign SOLAS Vessel Security Plans
that comply with the comprehensive requirements of the ISPS
[[Page 60557]]
Code. The consistency of the international and domestic security
regimes, to the extent possible, was always a central part of the
negotiations for the MTSA and the ISPS Code. In the MTSA, Congress
explicitly found that ``it is in the best interests of the U.S. to
implement new international instruments that establish'' a maritime
security system. We agree and will exercise Port State Control to
ensure that foreign vessels have approved plans and have implemented
adequate security standards on which these rules are based. If vessels
do not meet our security requirements, the Coast Guard may prevent
those vessels from entering the U.S. or take other necessary measures
that may result in vessel delays or detentions. The Coast Guard will
not hesitate to exercise this authority in appropriate cases. We
discuss the ongoing initiatives of ILO and the requirements under the
MTSA to develop seafarers' identification criteria in the temporary
interim rule titled ``Implementation of National Maritime Security
Initiatives'' (68 FR 39264) (part 101). We will continue to work with
other agencies to coordinate seafarer access and credentialing issues.
These final rules will also ensure that vessel and facility owners and
operators take an active role in deterring unauthorized access.
Unfunded Mandates Reform Act
The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538)
requires Federal agencies to assess the effects of their discretionary
regulatory actions. In particular, the Act addresses actions that may
result in the expenditure by a State, local, or Indian Tribal
government, in the aggregate, or by the private sector of $100,000,000
or more in any one year. This final rule is exempted from assessing the
effects of the regulatory action as required by the Act because it is
necessary for the national security of the United States (2 U.S.C.
1503(5)).
We did not receive comments regarding the Unfunded Mandates Reform
Act.
Taking of Private Property
This final rule will not effect a taking of private property or
otherwise have taking implications under Executive Order 12630,
Governmental Actions and Interference with Constitutionally Protected
Property Rights. We did not receive comments regarding the taking of
private property.
Civil Justice Reform
This final rule meets applicable standards in sections 3(a) and
3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize
litigation, eliminate ambiguity, and reduce burden. We did not receive
comments regarding Civil Justice Reform.
Protection of Children
We have analyzed this final rule under Executive Order 13045,
Protection of Children from Environmental Health Risks and Safety
Risks. While this final rule is an economically significant rule, it
does not create an environmental risk to health or risk to safety that
may disproportionately affect children. We did not receive comments
regarding the protection of children.
Indian Tribal Governments
This final rule does not have tribal implications under Executive
Order 13175, Consultation and Coordination with Indian Tribal
Governments, because it does not have a substantial direct effect on
one or more Indian tribes, on the relationship between the Federal
Government and Indian tribes, or on the distribution of power and
responsibilities between the Federal Government and Indian tribes. We
did not receive comments regarding Indian Tribal Governments.
Energy Effects
We have analyzed this final rule under Executive Order 13211,
Actions Concerning Regulations That Significantly Affect Energy Supply,
Distribution, or Use. We have determined that it is not a ``significant
energy action'' under that order. Although it is a ``significant
regulatory action'' under Executive Order 12866, it is not likely to
have a significant adverse effect on the supply, distribution, or use
of energy. The Administrator of the Office of Information and
Regulatory Affairs has not designated it as a significant energy
action. Therefore, it does not require a Statement of Energy Effects
under Executive Order 13211.
This final rule has a positive effect on the supply, distribution,
and use of energy. The final rule provides for security assessments,
plans, procedures, and standards, which will prove beneficial for the
supply, distribution, and use of energy at increased levels of maritime
security.
We did not receive comments regarding energy effects.
Environment
We have considered the environmental impact of this final rule and
concluded that under figure 2-1, paragraph (34)(a) and (34)(c), of
Commandant Instruction M16475.lD, this final rule is categorically
excluded from further environmental documentation. This final rule
concerns security assessments, plans, training for personnel, and the
establishment of security positions that will contribute to a higher
level of marine safety and security for OCS facilities extracting oil
or gas. A ``Categorical Exclusion Determination'' is available in the
docket where indicated under ADDRESSES or SUPPLEMENTARY INFORMATION.
This final rule will not significantly impact the coastal zone.
Further, the execution of this final rule will be done in conjunction
with appropriate State coastal authorities. The Coast Guard will,
therefore, comply with the requirements of the Coastal Zone Management
Act while furthering its intent to protect the coastal zone.
List of Subjects in 33 CFR Part 106
Facilities, Maritime security, Outer Continental Shelf, Reporting
and recordkeeping requirements, Security measures.
0
Accordingly, the interim rule adding 33 CFR part 106, that was
published at 68 FR 39338 on July 1, 2003, and amended at 68 FR 41916 on
July 16, 2003, is adopted as a final rule with the following changes:
PART 106--MARITIME SECURITY: OUTER CONTINENTAL SHELF (OCS)
FACILITIES
0
1. The authority citation for part 106 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
2. Revise the heading to part 106 to read as shown above.
0
3. In Sec. 106.110--
0
a. Revise paragraph (a) to read as set out below; and
0
b. In paragraph (b), remove the date ``June 25, 2004'' and add, in its
place, the date ``July 1, 2004'':
Sec. 106.110 Compliance dates.
(a) On or before December 31, 2003, OCS facility owners or
operators must submit to the cognizant District Commander for each OCS
facility--
(1) The Facility Security Plan described in subpart D of this part
for review and approval; or
(2) If intending to operate under an approved Alternative Security
Program, a letter signed by the OCS facility owner or operator stating
which approved
[[Page 60558]]
Alternative Security Program the owner or operator intends to use.
* * * * *
Sec. 106.115 [Amended]
0
4. In Sec. 106.115--
0
a. In the introductory text, remove the words ``that no later than''
and add, in their place, the word ``before''; and
0
b. In paragraph (c), after the words ``a copy of the Alternative
Security Program the OCS facility is using'', add the words ``,
including a facility specific security assessment report generated
under the Alternative Security Program, as specified in Sec.
101.120(b)(3) of this subchapter,''.
0
5. Revise Sec. 106.120 to read as follows:
Sec. 106.120 Noncompliance.
When an OCS facility must temporarily deviate from the requirements
of this part, the OCS facility owner or operator must notify the
cognizant District Commander, and either suspend operations or request
and receive permission from the District Commander to continue
operating.
0
6. In Sec. 106.200--
0
a. In paragraph (b)(7), remove the word ``and'';
0
b. In paragraph (b)(8), remove the period and add, in its place, the
words ``; and''; and
0
c. Add paragraph (b)(9) to read as follows:
Sec. 106.200 Owner or operator.
* * * * *
(b) * * *
(9) Ensure consistency between security requirements and safety
requirements.
Sec. 106.205 [Amended]
0
7. In Sec. 106.205(a)(2), after the word ``organization'', add the
words ``, including the duties of a Facility Security Officer''.
Sec. 106.220 [Amended]
0
8. In Sec. 106.220, in the introductory paragraph, after the words
``of the following'', add the words ``, as appropriate''.
0
9. Revise Sec. 106.225(a) to read as follows:
Sec. 106.225 Drill and exercise requirements.
(a) General. (1) Drills and exercises must test the proficiency of
facility personnel in assigned security duties at all MARSEC Levels and
the effective implementation of the Facility Security Plan (FSP). They
must enable the Facility Security Officer (FSO) to identify any related
security deficiencies that need to be addressed.
(2) A drill or exercise required by this section may be satisfied
with the implementation of security measures required by the FSP as the
result of an increase in the MARSEC Level, provided the FSO reports
attainment to the cognizant District Commander.
* * * * *
Sec. 106.230 [Amended]
0
10. In Sec. 106.230(b)(1), remove the words ``each security training
session'' and add, in their place, the words ``training under Sec.
106.215''.
Sec. 106.250 [Amended]
0
11. In Sec. 106.250, in paragraph (d)--
0
a. After the words ``part 104'', add the words ``of this chapter, or
their designated representatives,''; and
0
b. After the word ``DoSs'', add the words ``as required in paragraphs
(b)(1) and (b)(2) of this section''.
Sec. 106.260 [Amended]
0
12. In Sec. 106.260--
0
a. In paragraph (b) introductory text, after the words ``ensure that'',
add the words ``the following are specified'';
0
b. In paragraph (b)(3), remove the words ``are established''; and
0
c. In paragraph (c)(2), after the word ``vessels'', add the words ``or
other transportation conveyances''.
Sec. 106.265 [Amended]
0
13. In Sec. 106.265(c), remove the words ``should include'' and add,
in their place, the word ``includes''.
Sec. 106.275 [Amended]
0
14. In Sec. 106.275--
0
a. In paragraph (a)(1), after the word ``patrols'', remove the word
``and'' and add, in its place, a comma; and
0
b. In paragraph (b)(4), remove the word ``continually'' and add, in its
place, the word ``continuously''.
0
15. In Sec. 106.305--
0
a. Revise paragraph (c)(2)(v) to read as set out below; and
0
b. Add paragraphs (d)(3), (d)(4), (d)(5), and (e) to read as follows:
Sec. 106.305 Facility Security Assessment (FSA) requirements.
* * * * *
(c) * * *
(2) * * *
(v) Effects of a nuclear, biological, radiological, explosive, or
chemical attack to the OCS facility's shoreside support system;
* * * * *
(d) * * *
(3) The FSA report must list the persons, activities, services, and
operations that are important to protect, in each of the following
categories:
(i) OCS facility personnel;
(ii) Visitors, vendors, repair technicians, vessel personnel, etc.;
(iii) OCS facility stores;
(iv) Any security communication and surveillance systems; and
(v) Any other security systems, if any.
(4) The FSA report must account for any vulnerabilities in the
following areas:
(i) Conflicts between safety and security measures;
(ii) Conflicts between personnel duties and security assignments;
(iii) The impact of watch-keeping duties and risk of fatigue on
personnel alertness and performance;
(iv) Security training deficiencies; and
(v) Security equipment and systems, including communication
systems.
(5) The FSA report must discuss and evaluate key OCS facility
measures and operations, including--
(i) Ensuring performance of all security duties;
(ii) Controlling access to the OCS facility through the use of
identification systems or otherwise;
(iii) Controlling the embarkation of OCS facility personnel and
other persons and their effects (including personal effects and
baggage, whether accompanied or unaccompanied);
(iv) Supervising the delivery of stores and industrial supplies;
(v) Monitoring restricted areas to ensure that only authorized
persons have access;
(vi) Monitoring deck areas and areas surrounding the OCS facility;
and
(vii) The ready availability of security communications,
information, and equipment.
(e) The FSA, FSA report, and FSP must be protected from
unauthorized access or disclosure.
0
16. In Sec. 106.310--
0
a. In paragraph (a), remove the words ``Sec. 106.405 of this part''
and add, in their place, the words ``Sec. 106.410 of this part''; and
0
b. Add paragraph (c) to read as follows:
Sec. 106.310 Submission requirements.
* * * * *
(c) The FSA must be reviewed and validated, and the FSA report must
be updated each time the FSP is submitted for reapproval or revisions.
0
17. In Sec. 106.410, revise paragraph (a), introductory text, and
paragraphs (a)(2), (b), and (c) to read as follows:
Sec. 106.410 Submission and approval.
(a) On or before December 31, 2003, the owner or operator of each
OCS facility currently in operation must either:
* * * * *
(2) If intending to operate under an Approved Security Program,
submit a
[[Page 60559]]
letter signed by the OCS facility owner or operator stating which
approved Alternative Security Program the owner or operator intends to
use.
(b) Owners or operators of OCS facilities not in service on or
before December 31, 2003, must comply with the requirements in
paragraph (a) of this section 60 days prior to beginning operations or
by December 31, 2003, whichever is later.
(c) The cognizant District Commander will examine each submission
for compliance with this part and either:
(1) Approve it and specify any conditions of approval, returning to
the submitter a letter stating its acceptance and any conditions;
(2) Return it for revision, returning a copy to the submitter with
brief descriptions of the required revisions; or
(3) Disapprove it, returning a copy to the submitter with a brief
statement of the reasons for disapproval.
* * * * *
0
18. In Sec. 106.415, redesignate paragraph (a)(3) as paragraph (a)(4)
and add new paragraph (a)(3) to read as follows:
Sec. 106.415 Amendment and audit.
(a) * * *
(3) Nothing in this section should be construed as limiting the OCS
facility owner or operator from the timely implementation of such
additional security measures not enumerated in the approved FSP as
necessary to address exigent security situations. In such cases, the
owner or operator must notify the cognizant District Commander by the
most rapid means practicable as to the nature of the additional
measures, the circumstances that prompted these additional measures,
and the period of time these additional measures are expected to be in
place.
* * * * *
Dated: October 8, 2003.
Thomas H. Collins,
Admiral, Coast Guard, Commandant.
[FR Doc. 03-26349 Filed 10-20-03; 8:45 am]
BILLING CODE 4910-15-U