[Federal Register Volume 83, Number 53 (Monday, March 19, 2018)]
[Rules and Regulations]
[Pages 12086-12104]
[FR Doc No: 2018-05394]

Vol. 83

Monday,

No. 53

March 19, 2018

Part II

Department of Homeland Security

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Coast Guard

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

Consolidated Cruise Ship Security Regulations; Final Rule

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

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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

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

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

Consolidated Cruise Ship Security Regulations

AGENCY: Coast Guard, DHS.

ACTION: Final rule.

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SUMMARY: The Coast Guard is issuing a final rule to eliminate outdated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outdated regulations with simpler, consolidated regulations that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

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

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

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

SUPPLEMENTARY INFORMATION:

Table of Contents

I. Abbreviations
II. Executive Summary
    A. Summary of NPRM and Overview of the Final Rule
    B. Summary of Costs and Benefits
III. Basis and Purpose and Regulatory History
IV. Discussion of Comments and Changes
    A. Requirements for Cruise Ship Terminals vs. Ports of Call
    B. Legal Responsibility for Terminal Screening Program
    C. Screening Procedures and Requirements
    D. Prohibited Items List (PIL)
    E. Regulatory Impact Analysis and Regulatory Flexibility
Analysis
    F. Other Comments
V. Regulatory Analyses
    A. Regulatory Planning and Review
    B. Small Entities
    C. Assistance for Small Entities
    D. Collection of Information
    E. Federalism
    F. Unfunded Mandates Reform Act
    G. Taking of Private Property
    H. Civil Justice Reform
    I. Protection of Children
    J. Indian Tribal Governments
    K. Energy Effects
    L. Technical Standards
    M. Environment

I. Abbreviations

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

II. Executive Summary

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

A. Summary of NPRM

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

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

B. Overview of the Final Rule

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

C. Summary of Costs and Benefits

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

III. Basis and Purpose and Regulatory History

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

promulgate regulations to implement 33 U.S.C. chapter 26, including 33
U.S.C. 1226. The Secretary has delegated this authority to the
Commandant of the Coast Guard (DHS Delegation 0170.1(70) and (71)).
    On December 10, 2014, the Coast Guard published a notice of
proposed rulemaking (NPRM) titled ``Consolidated Cruise Ship Security
Regulations'' in the Federal Register (79 FR 73255). As described in
more detail in the section of the NPRM entitled ``Development of 33 CFR
Subchapter H'', the purpose of this rule was to require cruise ship
terminal Facility Security Plans (FSPs) to follow an organized format
that includes more aspects of screening, and to develop a Prohibited
Items List for use when conducting screening of all persons, baggage,
and personal effects at the terminal. This list would reduce
uncertainty in the industry and the public about what is prohibited and
what is not, and would help cruise ship facilities better implement the
screening requirement in 33 CFR 105.290(a).
    We provided an initial 3-month comment period for the proposed rule
that was to close on March 10, 2015. However, on April 1, 2015, we
published a Notice in the Federal Register (80 FR 17372) because we
omitted from the docket the accompanying Regulatory Analysis. We
reopened the comment period for a period of 60 days, until June 1, 2015
to allow commenters to read and comment on the detailed Regulatory
Analysis if desired. We received 31 written submissions. Additionally,
we held a public meeting at the Port Everglades Cruise Terminal in
Hollywood, Florida on February 9, 2015, where 4 persons made oral
statements.\2\
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    \2\ This meeting was announced in the Federal Register on
January 21, 2015 (80 FR 2839).
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IV. Discussion of Comments and Changes

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

B. Legal Responsibility for Terminal Screening Program

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

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

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

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

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

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

C. Screening Procedures and Requirements

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

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

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

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

D. Prohibited Items List (PIL)

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

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

E. Regulatory Impact Analysis and Regulatory Flexibility Analysis

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

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

F. Other Comments

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

V. Regulatory Analyses

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

A. Regulatory Planning and Review

    Executive Orders 12866 (``Regulatory Planning and Review'') and
13563 (``Improving Regulation and Regulatory Review'') direct agencies
to assess the costs and benefits of available regulatory alternatives
and, if regulation is necessary, to select regulatory approaches that
maximize net benefits (including potential economic, environmental,
public health and safety effects, distributive impacts, and equity).
Executive Order 13563 emphasizes the importance of quantifying both
costs and benefits, of reducing costs, of harmonizing rules, and of
promoting flexibility. Executive Order 13771 (``Reducing Regulation and
Controlling Regulatory Costs''), directs agencies to reduce regulation
and control regulatory costs and provides that ``for every one new
regulation issued, at least two prior regulations be identified for
elimination, and that the cost of planned regulations be prudently
managed and controlled through a budgeting process.''
    The Office of Management and Budget (OMB) has not designated this
rule a ``significant regulatory action'' under section 3(f) of
Executive Order 12866. Accordingly, OMB has not reviewed it. As this
rule is not a significant regulatory action, this rule is exempt from
the requirements of Executive Order 13771. See OMB's Memorandum
``Implementing Executive Order 13771, Titled `Reducing Regulation and
Controlling Regulatory Costs' '' (April 5, 2017). A regulatory analysis
(RA) follows.
    The following table summarizes the affected population, costs, and
benefits of this rule. A summary of costs and benefits by provision is
provided later in this section.

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

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

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

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

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

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

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

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

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

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

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

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

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

B. Small Entities

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

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

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

C. Assistance for Small Entities

    Under section 213(a) of the Small Business Regulatory Enforcement
Fairness Act of 1996 (Pub. L. 104-121), we offered to assist small
entities in understanding this rule so that they could better evaluate
its effects on them and participate in the rulemaking. The Coast Guard
will not retaliate against small entities that question or complain
about this rule or any policy or action of the Coast Guard.
    Small businesses may send comments on the actions of Federal
employees who enforce or otherwise determine compliance with Federal
regulations to the Small Business and Agriculture Regulatory
Enforcement Ombudsman and the Regional Small Business Regulatory
Fairness Boards. The Ombudsman evaluates these actions annually and
rates each agency's responsiveness to small business. If you wish to
comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR
(1-888-734-3247).

D. Collection of Information

    This rule calls for a collection of information under the Paperwork
Reduction Act of 1995 (44 U.S.C. 3501-3520). As defined in 5 CFR
1320.3(c), ``collection of information'' comprises reporting,
recordkeeping, monitoring, posting, labeling, and other similar
actions. The title and description of the information collection, a
description of those who must collect the information, and an estimate
of the total annual burden follow. The estimate covers the time for
reviewing instructions, searching existing sources of data, gathering
and maintaining the data needed, and completing and reviewing the
collection.
    Under the provisions of this final rule, plan holders will submit
amended security plans within 180 days of promulgation of the rule and
update them annually. This requirement will be added to an existing
collection with OMB control number 1625-0077.
    Title: Security Plans for Ports, Vessels, Facilities, Outer
Continental Shelf Facilities and Other Security-Related Requirements.
    OMB Control Number: 1625-0077.
    Summary of the Collection of Information: Facilities that receive
cruise ships will be required to update Facility Security Plans (FSPs)
to contain additional information regarding the screening process at
cruise terminals. Also, all cruise ship terminals that currently have a
FSP, will need to update said plan to include the list of prohibited
items as detailed in this rule.
    Need for Information: The information is necessary to show evidence
that cruise lines are consistently providing a minimum acceptable
screening process when boarding passengers. The information will
improve existing and future FSPs for cruise terminals, since they
currently do not separate this important information.
    Proposed Use of Information: The Coast Guard will use this
information to ensure that facilities are taking the proper security
precautions when loading cruise ships.
    Description of the Respondents: The respondents are FSP holders
that receive cruise ships.
    Number of Respondents: The number of respondents is 10,158 for
vessels, 5,234 for facilities, and 56 for Outer

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

E. Federalism

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

F. Unfunded Mandates Reform Act

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

Federal agencies to assess the effects of their discretionary
regulatory actions. In particular, the Act addresses actions that may
result in the expenditure by a State, local, or tribal government, in
the aggregate, or by the private sector of $100,000,000 (adjusted for
inflation) or more in any one year. Though this rule will not result in
such an expenditure, we do discuss the effects of this rule elsewhere
in this preamble.

G. Taking of Private Property

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

H. Civil Justice Reform

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

I. Protection of Children

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

J. Indian Tribal Governments

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

K. Energy Effects

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

L. Technical Standards

    The National Technology Transfer and Advancement Act (NTTAA) (15
U.S.C. 272 note) directs agencies to use voluntary consensus standards
in their regulatory activities unless the agency provides Congress,
through OMB, with an explanation of why using these standards would be
inconsistent with applicable law or otherwise impractical. Voluntary
consensus standards are technical standards (e.g., specifications of
materials, performance, design, or operation; test methods; sampling
procedures; and related management systems practices) that are
developed or adopted by voluntary consensus standards bodies.
    This rule does not add any voluntary consensus standards. Due to
the nature of cruise ship security operations, performance-based
standards allow an appropriate degree of flexibility that accommodates
and is consistent with different terminal sizes and operations. This
rule will standardize screening activities for all persons, baggage,
and personal effects at cruise ship terminals to ensure a consistent
layer of security at terminals throughout the United States.
Additionally, the Coast Guard consulted with the TSA during the
development of this rule.

M. Environment

    We have analyzed this rule under Department of Homeland Security
Management Directive 023-01 and Commandant Instruction M16475.lD, which
guide the Coast Guard in complying with the National Environmental
Policy Act of 1969 (42 U.S.C. 4321-4370f), and have determined that it
is one of a category of actions that do not individually or
cumulatively have a significant effect on the human environment. A
Record of Environmental Consideration (REC) supporting this
determination is available in the docket where indicated in the
ADDRESSES section of this preamble. This rule is categorically excluded
under paragraphs 34(a), regulations which are editorial or procedural;
34(c), regulations concerning the training, qualifying, licensing, and
disciplining or maritime personnel; and 34(d), regulations concerning
the documentation, admeasurement, inspection, and equipment of vessels,
of the Coast Guard's NEPA Implementing Procedures and Policy for
Considering Environmental Impacts, COMDTINST M16475.1D, and paragraph
6(b) of the ``Appendix to National Environmental Policy Act: Coast
Guard Procedures for Categorical Exclusions'' (67 FR 48243, July 23,
2002).

List of Subjects

33 CFR Part 101

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

33 CFR Part 104

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

33 CFR Part 105

    Maritime security, Reporting and recordkeeping requirements,
Security measures.

33 CFR Part 120

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

33 CFR Part 128

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

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

PART 101--MARITIME SECURITY: GENERAL

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

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

0
2. In Sec.  101.105, add, in alphabetical order, definitions for the
terms ``carry-on item'', ``checked baggage'', ``cruise ship terminal'',
``cruise ship voyage'', ``disembark'', ``embark'', ``explosive
detection system'', ``high seas'', ``port of call'', ``screener'', and
``terminal screening program or TSP'' to read as follows:

Sec.  101.105   Definitions.

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

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

PART 104--MARITIME SECURITY: VESSELS

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

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

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

Sec.  104.295  Additional requirements -- cruise ships.

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

PART 105--MARITIME SECURITY: FACILITIES

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

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

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

Sec.  105.225  Facility recordkeeping requirements.

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

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

Sec.  105.290   Additional requirements--cruise ship terminals.

* * * * *
    (a) Screen all persons, baggage, and personal effects for dangerous
substances and devices in accordance with the requirements in subpart E
of this part. The owner or operator of a cruise ship terminal need not
duplicate any provisions fulfilled by the vessel. When a provision is
fulfilled by a vessel, the applicable section of the terminal security
program (TSP) must refer to that fact.
    (b) Check the identification of all persons seeking to enter the
facility in accordance with Sec. Sec.  101.514, 101.515, and 105.255 of