Security for Passenger Vessels and Passenger Terminals

Federal RegisterJul 18, 1996

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SUMMARY: The Coast Guard is implementing an interim rule for the

security of passenger vessels and passenger terminals. This rule is

intended to deter, or mitigate the results of, terrorism and other

unlawful acts against passenger vessels and passenger terminals. It

should reduce the likelihood of such acts and should reduce the damage

to property and injury to persons, if such acts occur.

DATES: This rule is effective on October 16, 1996. Comments must be

received on or before September 16, 1996. The Director of the Federal

of certain publications listed in the rule.

ADDRESSES: Comments may be mailed to the Executive Secretary, Marine

Safety Council (G-LRA, 3406) (CGD 91-012), U.S. Coast Guard

Headquarters, 2100 Second Street SW., Washington, DC 20593-0001, or may

be delivered to room 3406 at the same address between 9:30 a.m. and 2

p.m., Monday through Friday, except Federal holidays. The telephone

number is (202) 267-1477. Comments on collection-of-information

requirements must be mailed also to the Office of Information and

Regulatory Affairs, Office of Management and Budget, 725 17th Street

NW., Washington, DC 20503, Attn: Desk Officer, U.S. Coast Guard.

The Executive Secretary maintains the public docket for this

rulemaking. Comments will become part of this docket and will be

available for inspection or copying at room 3406, U.S. Coast Guard

Headquarters, between 8 a.m. and 3 p.m., Monday through Friday, except

Federal holidays.

A copy of the material listed in ``Incorporation by Reference'' of

this preamble is available for inspection at room 1312, U.S. Coast

Guard Headquarters.

FOR FURTHER INFORMATION CONTACT:

CDR Dennis J. Haise, Office of Marine Safety, Security, and

Environmental Protection (G-MOS-2), Room 1208, (202) 267-6451, between

7:00 a.m. and 3:30 p.m., Monday through Friday, except Federal

holidays.

SUPPLEMENTARY INFORMATION:

Request for Comments

The Coast Guard encourages interested persons to participate in

this rulemaking by submitting written data, views, or arguments.

Persons submitting comments should include their name and address,

identify this rulemaking (CGD 91-012) and the specific section of this

proposal to which each comment applies, and give the reason for each

comment. Please submit two copies of all comments and attachments in an

unbound format, no larger than 8\1/2\ by 11 inches, suitable for

copying and electronic filing. Persons wanting acknowledgment of

receipt of comments should enclose stamped, self-addressed postcards or

envelopes.

The Coast Guard will consider all comments received during the

comment period. It may change this rule in view of the comments.

The Coast Guard held 3 public meetings after a notice of proposed

rulemaking (NPRM) entitled ``Security for Passenger Vessels and

Passenger Terminals'' was published (See 59 FR 14290; March 25, 1994)

and plans no further public hearing. Persons may request a public

hearing by writing to the Marine Safety Council at the address under

ADDRESSES. The request should include the reasons why a hearing would

be beneficial. If it determines that the opportunity for oral

presentations will aid this rulemaking, the Coast Guard will hold a

public hearing at a time and place announced by a later notice in the

Federal Register.

Regulatory Information

On March 25, 1994, the Coast Guard published (59 FR 14290) a notice

of proposed rulemaking (NPRM) entitled ``Security for Passenger Vessels

and Passenger Terminals''.

Background and Purpose

The vulnerability to terrorism of passenger vessels and associated

passenger terminals has been a major national and international concern

since the death of a U.S. citizen during the hijacking of the ACHILLE

LAURO in 1985. To address this threat, the President signed into law

the Omnibus Diplomatic Security and Antiterrorism Act of 1986 (Pub. L.

99-399; 100 Stat. 889), Title IX of which constitutes the International

Maritime and Port Security Act. That Act amended the Ports and

Waterways Safety Act (33 U.S.C. 1221), and provided the Coast Guard

authority to ``carry out or require measures, including inspections,

port and harbor patrols, the establishment of security and safety

zones, and the development of contingency plans and procedures, to

prevent or respond to acts of terrorism'' (Sec. 906).

The International Maritime Organization (IMO) adopted and published

``Measures to Prevent Unlawful Acts Against Passengers and Crews on

Board Ships'', also in 1986. Those measures, which are guidelines,

apply to passenger ships engaged on international voyages of 24 hours

or more and to the port facilities that serve them. The Coast Guard

published a notice in the Federal Register listing these measures as

``guidelines'' and encouraging voluntary compliance (52 FR 11587; April

9, 1987).

Since that time, the Coast Guard has relied upon voluntary

compliance with the IMO measures, and with its own guidelines based on

the IMO measures, to ensure that passenger vessels and passenger

terminals were prepared to prevent, and respond to, acts of terrorism.

Coast Guard encouragement to implement these measures has brought about

varying degrees of acceptance. Initially, the response was promising as

many passenger vessels and associated passenger terminals operating in

the U.S. began implementing them. However, the degree of implementation

has been inconsistent. Progress toward total implementation has slowed

significantly over the last 3 years. Some passenger vessels and

passenger terminals still do not maintain and administer appropriate

security measures. The Coast Guard has determined that voluntary

compliance has not produced the industry-wide level of security

necessary to ensure that acts of terrorism are deterred, or responded

to, in the best possible manner.

Terrorism has not decreased. In fact, the Coast Guard has seen an

increase in domestic terrorism along with a consistent, if not

increasing, threat of international terrorism. For these reasons, the

Secretary of the Department of Transportation (DOT) has asked all

agencies of the Department to reassess their security procedures and

standards. Consequently, the Coast Guard determined that implementing a

rule to ensure that passenger vessels and passenger terminals are

prepared to handle terrorist threats or actions was necessary.

The decision to move from an NPRM to this interim rule is based on

the fact that domestic terrorism, as well as international terrorism,

seems to be increasing. Passenger vessels and passenger terminals are

vulnerable and,

[[Page 37649]]

therefore, must begin developing plans to reduce the risk of terrorism

against them.

Discussion of Comments and Changes

The Coast Guard received 115 letters of comment and held 3 public

meetings. Thirty-three comments, and several speakers at the public

hearings, expressed their concern that the NPRM was too stringent and

inflexible. Many also felt that the proposed requirements were over and

above those recommended in the IMO measures that the Coast Guard had

encouraged the industry to adopt. As a result of the many comments

received, the Coast Guard has reconsidered its position on the scope of

the rule and has decided to align the rule as closely as possible with

the IMO measures by incorporating the requirements of Circular 443 of

the IMO's Maritime Safety Committee (MSC) into the rule (See

Secs. 120.220 and 120.230; 128.220 and 128.230). The Coast Guard has

determined that Circular 443 contains the basic elements necessary to

develop a sound security program, and will give industry the

flexibility that so many felt were missing from the NPRM.

Another issue consistently raised by the comments was the

perception that the current threat does not merit the degree of

security specified in the NPRM. The Coast Guard agrees with this

general observation; however, it believes that the need for increased

security continues. Although the threat level today may be low, the

possibility remains that it may escalate at any time. National-security

assessments over the past several years attest that terrorism continues

throughout the world. The United States is not exempt from terrorism as

evidenced by the bombing in 1995 at Oklahoma City. There is little

question that the threat of terrorism from both domestic and

international terrorists is, in fact, real.

Vulnerability has also been an important consideration in

determining the need for this rule. In general, the cruise industry

lacks identifiable security standards. Further, this industry is such

that its operations are generally vulnerable to terrorist activities.

The intent of this rule is to require passenger vessels and passenger

terminals to evaluate their vulnerability, develop methods to reduce

it, and establish plans to respond to increased threat. The

promulgation of security standards will increase security, and should

reduce vulnerability and the risk of a terrorist incident.

The Coast Guard understands, however, that the need for maximum

security does not exist at all times and has amended the rule to define

levels of threat for which security plans must be developed. It has

added three definitions to Sec. 120.110, for low, medium, and high

threats. A low threat is one when the possibility of an unlawful act

against a vessel or terminal exists, and indications are that a general

worldwide threat of terrorism exists. This is the threat level for

which security measures must be maintained for an indefinite period of

time; in other words, these are the normal, everyday security measures.

A medium threat is one where the threat of an unlawful act against a

vessel or terminal is possible, and where intelligence indicates that

terrorist activities are likely within a specific area, against a class

of vessel, or against a type of terminal. This threat level indicates

that a particular segment of the industry is in jeopardy but that no

specific target has been identified. A high threat is one where

intelligence indicates that terrorist activities have targeted a

specific vessel or terminal and that the threat of an unlawful act

against a vessel or terminal is probable if not imminent. The Coast

Guard envisions that medium and high threats would not last long and

would focus on only a small portion of the industry at any one time.

Distribution and notification of threat levels will be the

responsibility of the Coast Guard. The Commandant (G-MRO) will be

responsible for ensuring that Captains of the Port (COTPs) advise

passenger vessels and passenger terminals within their areas of

responsibility of a higher or lower threat level. The vessel or

terminal can and should increase its security whenever suspect

activities are noted by their own personnel or other reliable sources

such as the Federal Bureau of Investigations (FBI) or local law-

enforcement authorities. Increases in threat level initiated by the

vessel, terminal, or other sources shall be reported by the affected

vessel or terminal to the local COTP as soon as practicable. With these

amendments, the Coast Guard believes, the rule will allow owners and

operators to continue to operate as they normally do; however, they

will now have plans in place to increase security when advised by the

Coast Guard or other competent authority.

Thirteen comments expressed concerns for the amount of equipment

that would have to be purchased to comply with the proposed rule. With

the incorporation of the MSC Circular 443 requirements into the rule,

equipment is no longer specified or required. Owners or operators must

use the annexes within the Circular to determine how best to protect

their passengers.

Eighteen comments addressed what was felt as the Coast Guard's lack

of consideration for smaller ports, or those ports at which passengers

disembark for only short periods of time. The Coast Guard disagrees. If

a port does not embark or disembark a large number of people with a

substantial amount of baggage, then the degree of security decreases.

In some instances, the only security necessary may be the screening of

carry-on items; this may best be handled by the vessel. The rule

specifically states that the operator of the terminal need not

duplicate any provisions fulfilled by the operator of the vessel, or

vice versa, unless directed by the Commandant. Each terminal will have

to develop a plan addressing normal operations as well as operations

during higher threats. This plan will be based on the amount and type

of activity occurring within that port. It will be examined by the

cognizant COTP, who has a working relationship with the port. The

COTP's evaluation of the plan will depend upon the location of the port

and upon the ability of the owner or operator of the vessel or terminal

to meet the measures required for all three threat levels.

Nine comments expressed concern that the rule would be pointless

unless enforced equally worldwide. The Coast Guard does not have the

authority to issue worldwide regulations and must work through IMO to

help set international standards. The IMO measures for preventing acts

against passenger vessels and passenger terminals were published to

provide an international security standard. However, they are not

mandatory, and, for that reason, the Coast Guard conducts periodic

security assessments of foreign ports to determine compliance with

them. The Coast Guard has the responsibility to request that the

Department of Transportation ask the Department of State to issue an

advisory warning against travel to a particular port if it determines

that adequate security is not being provided.

Nine comments addressed the release of security plans on requests

under the Freedom of Information Act (FOIA) (5 U.S.C. 552). All of the

comments expressed the feeling that releasing these documents would

seriously jeopardize the overall security of the vessel or terminal.

The Coast Guard fully agrees with this feeling and has submitted a

legislative proposal to specifically exempt these plans from requests

under FOIA.

The State of Alaska asked that its ferries be exempt from this

rule. Its basis

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for this request is that these ferries make up part of the Alaska

Marine Highway System, and are a vital link between Alaska and the

lower 48 States. It advises that people often use the system out of

necessity, not choice, and that voyages transit the high seas for only

very short periods of time between the U.S. and Canada. The intent of

the Coast Guard has never been to apply this rule to this type of

vessel. For that reason, Secs. 120.100 and 128.100 of the rule have

been changed to exempt all ferries and terminals when servicing

ferries.

Five comments stated that the applicability of proposed

Secs. 120.100 and 128.100 was not clear and that confusion exists

whether a covered vessel must be on the high seas for 24 hours during a

voyage or whether the entire voyage must be 24 hours with part of that

voyage being on the high seas. The sections apply to those vessels

making voyages of more than 24 hours, any part of which is on the high

seas; they do not dictate that the vessel needs to be on the high seas

for 24 hours. They have been changed to more clearly define the

applicability of the rule relative to voyages on the high seas.

Nine comments addressed the definition of operator in proposed

Sec. 120.110. Some comments stated that the definition was overly broad

and that they were concerned that it could be construed to include port

authorities and general terminal operators. The salient phrase in the

definition was--and still is--``maintains operational control over a

passenger vessel or passenger terminal.'' Providing pier space does

not, in and of itself, constitute operational control. The contract

negotiated between the terminal and the vessel is a key indicator of

operational control. For a terminal, the definition of operator must be

coupled with the definition of passenger terminal, which emphasizes the

use of the terminal for the assembling, processing, embarking, or

disembarking of passengers or baggage. The Coast Guard considers the

definition of operator, as written, clear and not in need of change.

Eight comments addressed restricted areas described in proposed

Sec. 120.210. The comments urged that too many locations were specified

and that extensive installation of equipment would be necessary to

comply with the rule. The incorporation of MSC Circular 443 eliminated

this concern and allows owners or operators to use the guidance in the

annexes of the Circular to determine which areas they intend to

designate as ``restricted.''

Five comments addressed the responsibilities of the security

officer in proposed Secs. 120.220(b) and 128.220(b), and the

requirement for that officer to do all the items mentioned. The Coast

Guard did not intend for that officer to personally do all items

specified: it is perfectly acceptable to use the services of other

security professionals to accomplish these tasks. However, that officer

should have a working knowledge of security procedures to ensure that

the jobs are properly accomplished. To more clearly express this point,

the rule has been reorganized and these requirements have been moved to

Secs. 120.120 and 128.120.

Six comments addressed proposed Secs. 120.240 and 128.240,

coordination with terminal and vessel security, respectively. The major

concern was that the Coast Guard did not designate specific

responsibilities for the vessel and the terminal. The intent of these

sections was to develop a relationship between the owner or operator of

the vessel and the owner or operator of the terminal by requiring

consultations about security between them. Of course each vessel and

each terminal will have differences in capabilities. Coordination

between the two will take these into consideration. Further, the cost

of security may be reduced as duplication of effort will be avoided.

Cooperation and coordination between the vessel and the terminal should

prove beneficial to each. The Coast Guard has removed the specific

sections imposing the requirement of coordination between the vessel

and the terminal; however, the requirement still exists within

Secs. 120.200(b) and 128.200(b) of the interim rule.

Four comments addressed plans and their distribution in proposed

Secs. 120.300 and 128.300. These comments urged that the plans be

available only to those with the operational need to know. The Coast

Guard agrees, and has amended these sections.

Six comments addressed the survey contents required by proposed

Secs. 120.310 and 128.310. The comments focused on the amount of

information required and the potential size of the document. Annex 1 of

MSC Circular 443, which now contains the guidance for security surveys,

is not as stringent or specific as the guidance anticipated by the

NPRM. These surveys are the most critical part of plan development.

Each owner or operator should make them as thorough as possible.

Seven comments addressed the requirements for identification in

proposed Secs. 120.350 and 128.350. These requirements, too, have been

removed by the incorporation of MSC Circular 443; Annex 2 to the

Circular must now be used for guidance concerning identification.

Sixteen comments addressed the screening of baggage, stores, and

cargo under proposed Secs. 120.360 and 128.360. They dealt primarily

with the amount of time it will take to screen all the baggage, stores,

and cargo. The comments stated that all the screening would cause undue

delays in boardings and departures of vessels. Some suggested that the

process itself was a waste of time. Others supported it, and offered

alternatives to help speed it. These sections, too, have been removed

from this interim rule. This now directs owners and operators to use

the guidance in Annex 2 of MSC Circular 443. The amount of screening to

be done should be determined with reference to the three threat levels

defined by this rule.

Nine comments addressed the lighting requirements in proposed

Sec. 120.410. They concerned primarily the impracticability of the

lighting distance specified. This section has been removed. For

guidance on security lighting, owners and operators must now turn to

Annex 2 of MSC Circular 443.

Twenty comments addressed the requirement for barriers in proposed

Sec. 128.435. Most expressed the concern that fences with barbed wire

were not aesthetically pleasing, were impracticable in some areas, and

would detract from the cruising experience. This section has been

removed. For guidance on barriers, owners and operators must now turn

to Annex 2 of MSC Circular 443. Permanent barriers are no longer

required; however, barriers must still achieve the purpose proclaimed

in the Circular.

Beyond those changes made in response to comments on the NPRM, the

Coast Guard also has made the following changes on its own initiative.

Proposed Secs. 120.200 and 128.200 have been amended to more

clearly define requirements for planning based on threat. In

particular, Secs. 120.200 and 128.200 as published today introduce

planning based on three levels of threat.

Proposed Secs. 120.300 and 128.300 have been amended to require

planning for low, medium, and high threats and to restrict distribution

of the plan to only those persons with the operational need to know.

The latter change will help reduce the risk of the plan's falling into

the hands of a terrorist.

Proposed Secs. 120.305 and 128.305 have been retitled and reworded,

removing the requirement of a letter of adequacy of inserting

procedures by which the Coast Guard will examine plans for compliance

with this rule.

[[Page 37651]]

These changes will reduce the amount of time necessary to review plans

for compliance with this rule and will reduce the amount of paperwork

generated by and for the Coast Guard. Sections 120.300(a) and

128.300(a) require that an ``appropriate'' plan be developed and

maintained. In this context, the examining authority, either the NMC or

the COTP, will be reviewing plans to insure that security measures are

commensurate with each threat level. The examining authorities will

evaluate the circumstances unique to the vessel or terminal, and

determine whether adequate security measures for the three threat

levels are addressed. Factors to be considered will include such things

as security guards, screening of baggage and stores, barriers, and

personnel access control.

Proposed Sec. 120.307 has been amended by removing the requirement

for Commandant's approval of amendments to plans and by inserting

procedures under which the Coast Guard will examine the amendments for

compliance with this rule. Again, time for review and paperwork will be

reduced because of this amendment.

Proposed Sec. 128.307 has been amended by removing the requirement

for COTPs' approval of amendments to plans and by inserting procedures

under which the Coast Guard will examine the amendments to ensure

compliance with this rule. This amendment will speed review of

documents by the Coast Guard and will eliminate paperwork.

Proposed Secs. 120.220 and 128.220 have been redesignated as

Secs. 120.210 and 128.210, respectively.

Proposed Sec. 120.250 has been redesignated as Sec. 120.220.

Proposed Sec. 128.250 has been redesignated as Sec. 128.220.

Proposed Secs. 128.210; 120.240 and 128.240; 120.370 and 128.370;

120.420 and 128.420; 120.430 and 128.430; and 120.440 and 128.440 have

given way to the guidance contained in the annexes to MSC Circular 443.

Sections 120.309 and 128.309 have been added to provide the right

to appeal the action or decision of the NMC or the COTP.

Incorporation by Reference

The following material would be incorporated by reference in

Secs. 120.220, 120.300, 128.220 and 128.300: International Maritime

Organization (IMO), MSC Circular 443, ``Measures to Prevent Unlawful

Acts Against Passengers and Crews on Board Ships'' dated September 26,

1986. Copies of the material are available for inspection where

indicated under ADDRESSES. Copies of the material are available from

the source listed in Secs. 120.120 and 128.120.

The Coast Guard has submitted this material to the Director of the

Federal Register for approval of the incorporation by reference.

Assessment

This proposal is a significant regulatory action under section 3(f)

of Executive Order 12866 and has been reviewed by the Office of

Management and Budget under that Order. It requires an assessment of

potential cost and benefits under section 6(a)(3) of that Order. It is

significant under the regulatory policies and procedures of the

Department of Transportation (44 FR 11040; February 26, 1979). An

Assessment has been prepared and is available in the docket for

inspection or copying where indicated under ADDRESSES. A summary of the

Assessment follows.

The Coast Guard anticipates that approximately 120 passenger

vessels and 53 passenger terminals would be affected. Of the vessels,

approximately 117 are cruise vessels, each carrying in excess of 100

passengers and operating out of U.S. ports. Of the terminals, all serve

these cruise vessels. There may be up to 40 more vessels and 20 more

terminals that would be subject to this rule only on occasion. There

are approximately 4 million passengers a year that would be subject to,

and benefit from, the proposed security measures.

The Coast Guard estimates initial implementing costs at $546,368.

It estimates annual operating costs at $28,000. If the number of

passengers remains constant at approximately 4 million per year, the

additional cost to consumers will be negligible.

The potential exists for the loss of many lives and significant

property damage from a single act of terrorism against a passenger

vessel. The principal benefit gained by this action will be a higher

level of preparedness and the ability to better respond to such an act.

Additionally, these measures will act as a deterrent to terrorist

actions. Although it is difficult to calculate the number of deaths and

injuries, and dollar value of property damage, lawsuits, and lost

business that this action will prevent, the Coast Guard asserts that

the benefits will far outweigh the costs of this rule.

Small Entities

Under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.), the

Coast Guard must consider whether this rule will have a significant

economic impact on a substantial number of small entities. ``Small

entities'' include independently owned and operated businesses that are

not dominant in their field and that otherwise qualify as ``small

business concerns'' under Sec. 3 of the Small Business Act (15 U.S.C.

632).

This rule will have a minimal impact on small entities, but most

passenger vessels making voyages on the high seas of 24 hours or more,

and most terminals associated with them, are neither owned nor operated

by small entities. Security requirements for small vessels and

terminals will be less complex and less expensive to implement than for

large vessels and terminals. Therefore, the Coast Guard certifies under

5 U.S.C. 605(b) that this rule will not have a significant economic

impact on a substantial number of small entities. If, however, you

think that your business qualifies as a small entity and that this rule

will have a significant economic impact on your business, please submit

a comment (see ADDRESSES) explaining why you think your business

qualifies and in what way and to what degree this rule will

economically affect your business.

Paperwork Reduction Act of 1995

This interim rule contains information collections which are

subject to review by the Office of Management and Budget (OMB) under

the Paperwork Reduction Act of 1995 (Pub. L. 104-13). The title,

description, and respondent description of the information collections

are shown below and an estimate of the annual recordkeeping and

periodic reporting burden. Included in the estimate is the time for

reviewing instructions, searching existing data sources, gathering and

maintaining the data needed, and completing and reviewing the

collection of information.

Title: Secretary for Passenger Vessels and Passenger Terminals.

Description: This interim rule implements security standards for

passenger vessels and terminals. It requires a comprehensive security

program that includes requirements for a security plan and the

reporting of unlawful acts or related activities. These requirements

are contained in Secs. 120.220, 120.300, 120.307, 128,220, 128.300, and

128.307.

Need for Information: Protect the public from injury, prevent

damage to property, and avoid economic losses.

Proposed use of Information: Regulatory compliance, program

management, and program evaluation.

Description of Respondents: The owner of any covered vessel or

terminal. These include: businesses or other for profit organizations,

Federal, State and Local governments.

[[Page 37652]]

Frequency of Response: Once for each covered vessel and terminal;

then, on occasion of amendment to plan. Reporting of unlawful acts or

related activities is also required when they occur.

Estimated Annual Burden: 1,649 hours. This figure is the total

annual burden hours for the estimated 120 covered vessels and the 53

covered terminals. It includes the hours necessary for initial plan

development and annual maintenance, and the time necessary to develop

reports of unlawful acts, and is amortized over a 25-year period.

As required be section 3507(d) of the Paperwork Reduction Act of

1995, the Coast Guard has submitted a copy of this interim rule to OMB

for its review of these information collection requirements.

In addition, the Coast Guard solicits public comment on the

information collection requirements in order to: (1) evaluate whether

the proposed collection of information is necessary for the proper

performance of the functions of the agency, including whether the

information will have practical utility; (2) evaluate the accuracy of

the agency's estimate of the burden of the proposed information,

including the validity of the methodology and assumptions used, (3)

enhance the quality, utility, and clarity of the information to be

collected; and (4) minimize the burden of the collection of information

on those who are to respond, including through the use of appropriate

automated, electronic, mechanical, or other technological collection

techniques or other forms of information technology, e.g., permitting

electronic submission of responses.

Individuals and organizations may submit comments on the

information collection requirements by September 16, 1996, and should

direct them to the Executive Secretary, Marine Safety Council (address

above) and to the Office of Information and Regulatory Affairs, OMB,

New Executive Office Bldg., rm 10235, 725 17th St. NW., Washington, DC

20503, Attention: Desk Officer for DOT.

Persons are not required to respond to a collection of information

unless it displays a currently valid OMB Control number. The Coast

Guard will publish a notice in the Federal Register prior to the

effective date of this interim rule of OMB's decisions to approve,

modify or disapprove the information collection requirements.

Federalism

The Coast Guard has analyzed this rule under the principles and

criteria contained in Executive Order 12612 and has determined that

this rule does not have sufficient federalism implications to warrant

the preparation of a Federalism Assessment.

Environment

The Coast Guard considered the environmental impact of this

rulemaking and concluded that, under paragraph 2.B.2.e.(34) of

Commandant Instruction M16475.1B, this rule is categorically excluded

from further environmental documentation. This rulemaking implements

statutory authority of the Coast Guard in maritime safety. A

``Categorical Exclusion Determination'' is available in the docket for

inspection or copying where indicated under addresses.

List of Subjects

33 CFR Part 120

Security, Passenger vessels, Incorporation by reference, Reporting

and recordkeeping requirements.

33 CFR Part 128

Security, Waterfront facilities, Incorporation by reference,

Reporting and recordkeeping requirements.

For the reasons set out in the preamble, the Coast Guard proposes

to amend Chapter I of title 33, Code of Federal Regulations, as

follows:

1. Subchapter K, consisting of part 120, is added to read as

follows:

SUBCHAPTER K--SECURITY OF VESSELS

PART 120--SECURITY OF PASSENGER VESSELS

Subpart A--General

Sec.

120.100 Applicability.

120.110 Definitions.

120.120 Incorporation by reference.

Subpart B--Security Program

120.200 General.

120.210 Vessel security officer.

120.220 Reporting of unlawful acts and related activities.

Subpart C--Plans and Procedures for Vessel Security.

120.300 Plan: General.

120.305 Plan: Procedure for examination.

120.307 Plan: Amendment.

120.309 Right of Appeal.

Authority: 33 U.S.C. 1231; 49 CFR 1.46.

Subpart A--General

Sec. 120.100 Applicability.

This part applies to all passenger vessels over 100 gross tons,

carrying more than 12 passengers for hire; making voyages lasting more

than 24 hours, any part of which is on the high seas; and for which

passengers are embarked or disembarked in the United States or its

territories. It does not apply to ferries that hold Coast Guard

Certificates of Inspection endorsed for ``Lakes, Bays, and Sounds'',

and that transit international waters for only short periods of time,

on frequent schedules.

Sec. 120.110 Definitions.

As used in this part:

Captain of the Port (COTP) means the Coast Guard officer designated

by the Commandant to command a Captain of the Port Zone as described in

Part 3 of this chapter, or an authorized representative.

Commandant means the Commandant of the U.S. Coast Guard, or an

authorized representative.

High seas means all waters that are neither territorial seas nor

internal waters of the United States or of any foreign country as

defined in Part 2, Subpart 2.05, of this chapter.

High threat means that the threat of an unlawful act against a

vessel or terminal is probable or imminent and that intelligence

indicates that terrorists have chosen specific targets.

Low threat means that the threat of an unlawful act against a

vessel or terminal is, though possible, not likely.

Medium threat means that the threat of an unlawful act against a

vessel or terminal is possible and that intelligence indicates that

terrorists are likely to be active within a specific area, or against a

type of vessel or terminal.

Operator means the person, company, or governmental agency, or the

representative of a company or governmental agency, that maintains

operational control over a passenger vessel or passenger terminal.

Passenger terminal means any structure used for the assembling,

processing, embarking, or disembarking of passengers or baggage for

vessels subject to this part. It includes piers, wharves, and similar

structures to which a vessel may be secured; land and water under or in

immediate proximity to these structures; buildings on or contiguous to

these structures; and equipment and materials on or in these

structures.

Unlawful act means an act that is a felony under U.S. federal law,

under the laws of the States where the vessel is located, or under the

laws of the country in which the vessel is registered.

Voyage means the passenger vessel's entire course of travel, from

the first port at which the vessel embarks

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passengers until its return to that port or another port where the

majority of the passengers are disembarked and terminate their voyage.

Sec. 120.120 Incorporation by reference.

(a) Certain material is incorporated by reference into this part

with the approval of the Director of the Federal Register in accordance

with 5 U.S.C. 552(a) and 1 CFR Part 51. To enforce any edition other

than that specified in paragraph (b) of this section, the Coast Guard

must publish notice of change in the Federal Register and must make the

material available to the public. All approved material may be

inspected at the Office of the Federal Register, 800 North Capitol

Street NW., Suite 700, Washington, DC, and at the U.S. Coast Guard, (G-

MES), 2100 Second Street SW., Washington, DC. Copies may be obtained

from IMO, 4 Albert Embankment, London SE1 7SR.

(b) The materials approved for incorporation by reference in this

part and the sections affected are:

International Maritime Organization (IMO)

4 Albert Embankment, London SE1 7SR MSC Circular 443, Measures to

Prevent Unlawful Acts Against Passengers and Crews on Board Ships

September 26, 1986--120.220, 120.300

Subpart B--Security Program

Sec. 120.200 General.

(a) Each operator of a vessel to which this part applies shall for

each such of its vessels implement a program that--

(1) Provides for the safety and security of persons and property

traveling aboard the vessel against unlawful acts;

(2) Prevents or deters the carriage aboard the vessel of any

prohibited weapon, incendiary, or explosive, on or about any person or

within his or her personal articles or baggage, and the carriage of any

prohibited weapon, incendiary, or explosive, in stowed baggage, cargo,

or stores;

(3) Prevents or deters unauthorized access to the vessel and to

restricted areas aboard the vessel;

(4) Provides means to meet the requirements for low, medium, and

high threats, through increased security measures to be implemented on

advice by the Commandant or COTP of an increased threat to the vessel

or persons on the vessel;

(5) Designates, by name, a security officer for the vessel;

(6) Ensures that all members of the crew are adequately trained to

perform their duties relative to security; and

(7) Provides for coordination with terminal security while in port.

(b) Each operator of a vessel to which this part applies shall work

with the operator of each terminal at which the vessel embarks or

disembarks passengers, to provide security for the passengers and the

vessel. The vessel, however, need not duplicate any provisions

fulfilled by the terminal unless directed by the Commandant. When a

provision is fulfilled by the terminal, that fact shall be referenced

in the applicable section of the Vessel Security Plan required by

Sec. 120.300.

Sec. 120.210 Vessel security officer.

(a) Each operator of a vessel to which this part applies shall

designate a security officer for the vessel.

(b) This officer shall ensure that--

(1) An initial comprehensive security survey is conducted and

updated;

(2) The plan required by Sec. 120.300 is implemented and

maintained, and that amendments to correct its deficiencies and satisfy

the security requirements for the vessel are proposed;

(3) Adequate training for members of the crew responsible for

security is provided;

(4) Regular security inspections of the vessel are conducted;

(5) Vigilance, as well as general awareness of security aboard the

vessel, is encouraged;

(6) All occurrences or suspected occurrences of unlawful acts and

related activities are reported in accordance with Sec. 120.220; and

(7) Coordination, for implementation of the plant required by

Sec. 120.300, takes place with the terminal security officer at each

terminal at which the vessel embarks or disembarks passengers.

Sec. 120.220 Reporting of unlawful acts and related activities.

(a) Either the operator of the vessel or the vessel security

officer shall report each breach of security, unlawful act, or threat

of an unlawful act against the vessel or persons aboard it that occurs

in a place subject to the jurisdiction of the United States, both to

the COTP and to the local office of the Federal Bureau of Investigation

(FBI). Also, the operator of each U.S.-flag vessel shall report each

such incident that occurs in a place outside the jurisdiction of the

United States to the hotline of the Response Center of the Department

of Transportation at 1-800-424-0201, or, from within metropolitan

Washington D.C., at (202) 267-3675.

(b) Either the operator of the vessel or the vessel security

officer shall file a written report of the incident, using the form

``Report on an Unlawful Act'', contained in IMO MSC Circular 443, which

the operator or the officer shall forward as soon as possible to

Commandant (G-MRO), U.S. Coast Guard Headquarters, 2100 Second Street

SW., Washington, DC 20593-0001. Notification of an incident may be

initially filed by fax. Original copies should be sent by mail in

conjunction with faxing the report to the Commandant (G-MRO), fax

numbers are (202) 267-4085/4065.

Subpart C--Plans and Procedures for Vessel Security

Sec. 120.300 Plan: General.

(a) Each operator of a vessel subject to this part shall for each

such vessel develop and maintain, in writing, an appropriate Vessel

Security Plan that--

(1) Is unique to the vessel;

(2) Articulates the program required by Sec. 120.200; and

(3) Includes an appendix, for each port in which the vessel embarks

or disembarks passengers, that contains port-specific security

information.

(b) The Plan must be developed and maintained in accordance with

the guidance in IMO MSC Circular 443, and must address security for

periods of low, medium, and high threats, to--

(1) Deter unauthorized access to the vessel and its restricted

areas;

(2) Deter the introduction of prohibited weapons, incendiaries, or

explosives aboard the vessel;

(3) Encourage vigilance, as well as general awareness of security,

aboard the vessel;

(4) Provide adequate training to members of the crew for security

aboard the vessel;

(5) Coordinate responsibilities for security with the operator of

each terminal at which the vessel embarks or disembarks passengers; and

(6) Provide information to members of the crew and to law-

enforcement personnel, in case of an incident affecting security.

deficiencies.

(d) The operator shall restrict the distribution, disclosure, and

availability of information contained in the plan to those persons with

an operational need to know.

Sec. 120.305 Plan: Procedure for examination.

(a) Each operator of a passenger vessel subject to this part shall

submit two copies of the Vessel Security Plan required by Sec. 120.300

to the Director, National Maritime Center (NMC), 4200 Wilson Blvd.,

Suite 510, Arlington, VA 22203, for examination before October 16,

1996, or at least 60 days before

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embarking passengers on a voyage described in Sec. 120.100, whichever

is later.

(b) If the Director of the NMC finds that the Vessel Security Plan

meets the requirements of Sec. 120.300, the Director shall return a

copy to the owner or operator marked ``Examined by the Coast Guard''.

the requirements of Sec. 120.300, the Director shall return the plan

with an explanation of why it does not meet the requirements.

(d) No vessel subject to this part may embark or disembark

passengers in the United States after November 16, 1996, unless it

holds either a Vessel Security Plan that has been examined by the Coast

Guard or a letter from the Director of the NMC stating that the Plan is

currently under review by the Coast Guard and that normal operations

may continue until the Coast Guard has determined whether the Plan

meets the requirements of Sec. 120.300.

Sec. 120.307 Plan: Amendment.

(a) The operator of a passenger vessel subject to this part may

initiate amendments to the Vessel Security Plan on its own as well as

when directed by the Director of the NMC.

(b) Each proposed amendment to the Plan, initiated by the operator,

including changes to the appendices required by Sec. 120.300(a)(3),

must be submitted to the Director of the NMC for review at least 30

days before the proposed amendment is to take effect, unless a shorter

period is allowed by the Director. The Director will examine the

amendment and respond according to Sec. 120.305.

subject to this part to amend its Plan if the Director determines that

implementation of the Plan is not providing effective security. Except

in an emergency, the Director will issue to the operator a written

notice of matters to address and will allow the operator at least 60

days to submit proposed amendments.

(d) If there is an emergency or other circumstance that makes the

procedures in paragraph (c) of this section impracticable, the COTP may

give to the operator of a vessel subject to this part an order to

implement increased security measures immediately. The order will

incorporate a statement of the reasons for it.

Sec. 120.309 Right of appeal.

Any person directly affected by a decision or action taken by the

Director of the NMC under this part, may appeal that action or decision

to the Chief, Marine Safety and Environmental Protection Directorate

(Commandant (G-M)) according to the procedures in 46 CFR 1.03-15.

2. Part 128 is added to subchapter L to read as follows:

PART 128--SECURITY OF PASSENGER TERMINALS

Subpart A--General

Sec.

128.100 Applicability.

128.110 Definitions.

128.120 Incorporation by reference.

Subpart B--Security Program

Sec.

128.200 General.

128.210 Terminal security officer.

128.220 Reporting of unlawful acts and related activities.

Subpart C--Plans and Procedures for Terminal Security

Sec.

128.300 Plan: General.

128.305 Plan: Procedure for examination.

128.307 Plan: Amendment.

128.309 Right to Appeal.

Authority: 33 U.S.C. 1231; 49 CFR 1.46.

Subpart A--General

Sec. 128.100 Applicability.

This part applies to all passenger terminals in the United States

or its territories when being used for the assembling, processing,

embarking, or disembarking of passengers or baggage for passenger

vessels over 100 gross tons, carrying more than 12 passengers for hire;

making a voyage lasting more than 24 hours, any part of which is on the

high seas. It does not apply to terminals when serving ferries that

hold Coast Guard Certificates of Inspection endorsed for ``Lakes, Bays,

and Sounds'', and that transit international waters for only short

periods of time, on frequent schedules.

Sec. 128.110 Definitions.

The definitions in part 120 of this chapter apply to this part.

Sec. 128.120 Incorporation by reference.