Maritime
Action Item: Owners, operators, and other interested parties related to the operation of marine terminals should review and comment on a Coast Guard Notice of Proposed Rulemaking (“NPRM”) addressing new requirements to implement a system that provides seafarers and other individuals with access between moored vessels and the facility gate in a timely manner and at no-cost.
New Development
The U.S. Coast Guard published an NPRM on December 29, 2014, proposing to require owners and operators of facilities subject to the Maritime Transportation Security Act of 2002 (“MTSA”) to provide seafarers and other individuals access between vessels moored at the facilities and the facilities’ gate. The NPRM is available at http://www.gpo.gov/fdsys/pkg/FR-2014-12-29/pdf/2014-30013.pdf. A public meeting is scheduled for January 23, 2015, and seat reservations are required by January 16, 2015. Comments are due by February 27, 2015.
Background
MTSA, which implements the International Ship and Port Facility Security Code, was enacted in the wake of 9/11 to enhance the security of U.S. ports, facilities, waterways, and vessels. MTSA requires vessels and port facilities to conduct vulnerability assessments and develop Facility Security Plans (“FSPs”) covering specific security measures, including access control.
The Coast Guard has long encouraged facility operators and owners to provide means to facilitate shore leave access for mariners and visits to vessels by seafarer welfare organizations. Current regulations implementing MTSA require facilities to “ensure coordination of shore leave for vessel personnel or crew change-out, as well as access through the facility for visitors of the vessel.” Although the majority of facilities were complying with shore leave requirements, there are still examples of seafarer access through facilities being denied, restricted, or subject to onerous limitations. Sometimes, seafarers have been prevented from leaving their vessels due to financial requirements put in place by facilities as a condition for providing access across the facility.
As a result of these ongoing access challenges, Section 811 of the Coast Guard Authorization Act of 2010 addressed the ongoing access issue by requiring FSPs to document and provide a system for mariners, pilots, and persons with mariner welfare-related business to access vessels through facilities at no cost to the individuals. The purpose of the NPRM is to implement Section 811.
Analysis
The NPRM applies to owners and operators of MTSA regulated facilities. Such facilities are required by MTSA to implement national maritime security initiatives, including the control of access to the facilities. The NPRM requires MTSA regulated facilities to implement a system for providing seafarers and other individuals with a legitimate purpose for accessing the vessel with access to/from the vessel to/from the facility gate. Individuals for which access would be required includes seafarers assigned to a vessel moored at the facility, vessel pilots and other authorized personnel performing work for a vessel moored at the facility, representatives of seafarers’ welfare and labor organizations, and other authorized individuals in accordance with the Declaration of Security or other arrangement between the vessel and facility. However, the requirement to provide access applies only after the seafarers and other individuals have been inspected, processed, and admitted to the United States by U.S. Customs and Border Protection (“CBP”), if necessary.
Access must be provided in a timely manner and at no cost to the individual. With regard to timeliness, the NPRM requires access “without unreasonable delay.” The amount of time that will be considered “reasonable” for an individual to wait depends on a number of factors, including length of time the vessel is scheduled to remain in port, distance between the vessel and facility gate, the vessel’s watch schedule, facility safety and security procedures required by law, and other factors specific to the facility or vessel that affect access.
Further, the method of access must either be one of the methods listed in the NPRM or approved the Coast Guard Captain of the Port. The NPRM access methods include on-call or regularly scheduled escorts, taxi services, use of seafarers’ welfare organizations to facilitate, or monitored pedestrian routes. Where third-parties are relied upon, such as seafarers’ welfare organizations and taxi services, a back-up method must be provided to ensure timely access.
Facilities must implement an access system within one year of the publication of the final rule and the system must be included in the FSP. Specifically, the FSP must include the location of transit areas, duties of all facility personnel associated with providing access, the method of escorting or monitoring individuals transiting the facility, agreements with third-parties to provide access, and the maximum length of time an individual will have to wait for access. The FSP must be submitted for approval 60 days before implementation. Thus, FSPs would be required to be submitted 10 months after publication of the final rule.
The Coast Guard is currently accepting comments on the NPRM and is particularly interested in comments addressing the implementation schedule, list of individuals covered, “timely access” factors, methods of access, non-compliance estimates, and cost estimates.
Conclusion
The NPRM may require operational changes and increased costs for facilities not already in compliance with access requirements. FSP amendments will also be required. Owners and operators of MTSA-regulated facilities and other stakeholders should review the NPRM and consider attending the public meeting on January 23, 2015, and submitting comments by February 27, 2015.
