[Federal Register Volume 84, Number 62 (Monday, April 1, 2019)]
[Rules and Regulations]
[Pages 12102-12119]
[FR Doc No: 2019-06272]

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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 105

[Docket No. USCG-2013-1087]
RIN 1625-AC15

Seafarers' Access to Maritime Facilities

AGENCY: Coast Guard, DHS.

ACTION: Final rule.

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SUMMARY: The Coast Guard is issuing a final rule requiring each owner
or operator of a maritime facility regulated by the Coast Guard to
implement a system providing seafarers, pilots, and representatives of
seamen's welfare and labor organizations access between vessels moored
at the facility and the facility gate, in a timely manner and at no
cost to the seafarer or other individuals. These access procedures must
be documented in the Facility Security Plan for each facility, and
approved by the local Captain of the Port. This final rule, which
implements a congressional mandate, ensures that no facility owner or
operator denies or makes it impractical for seafarers or other
individuals to transit through the facility.

DATES: This final rule is effective May 1, 2019.

ADDRESSES: You may view supplemental material identified by docket
number USCG-2013-1087 using the Federal eRulemaking Portal at https://www.regulations.gov.

FOR FURTHER INFORMATION CONTACT: For information about this document,
call or email LCDR Myles J. Greenway, Cargo and Facilities Division
(CG-FAC-2), Coast Guard; telephone<PHONE_NUMBER>, email
[email protected].

SUPPLEMENTARY INFORMATION:

Table of Contents for Preamble

I. Abbreviations
II. Basis and Purpose
III. Regulatory History
IV. Discussion of Comments and Changes
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

ASP Alternate Security Program
ATB Articulated tug barge
BLS U.S. Bureau of Labor Statistics
CBP U.S. Customs and Border Protection
CFR Code of Federal Regulations
CGAA Coast Guard Authorization Act of 2010
COTP Captain of the Port
DHS Department of Homeland Security
DoS Declaration of Security
FR Federal Register
FRFA Final Regulatory Flexibility Analysis
FSO Facility security officer
FSP Facility security plan
ISPS Code International Ship and Port Facility Security Code
ITB Integrated tug barge
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
RA Regulatory analysis
Sec.  Section symbol
SBA Small Business Administration
SCI Seamen's Church Institute
SME Subject matter expert
TWIC Transportation Worker Identification Credential
U.S.C. United States Code

II. Basis and Purpose

    Throughout the maritime sector, vessels arrive at facilities
regulated by the Maritime Transportation Security Act of 2002 (MTSA)
(Pub. L. 107-295, codified at 46 U.S.C. 70101 et seq.) for any number
of commercial and other purposes. These vessels are operated by
seafarers,\1\ who are individuals assigned to work on a vessel and who
may be at sea for days, weeks, or months as part of their employment on
that vessel. Generally, transiting through a MTSA-regulated facility is
the only way for seafarers to access the shore, and the services,
businesses, family members, and friends, among other things, beyond the
vessel and the facility. Additionally, individuals providing services
for seafarers, or having another legitimate purpose for accessing the
vessel, can generally access a vessel moored at an MTSA-regulated
facility only by transiting through the facility.
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    \1\ The terms ``seafarer'' and ``seaman'' are synonymous (as are
their plural forms, ``seafarers'' and ``seamen''), and are used
interchangeably in this final rule.
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    Section 811 of the Coast Guard Authorization Act of 2010 (CGAA)
(Pub. L. 111-281, codified at 46 U.S.C. 70103 note) requires facility
owners and operators to ensure shore access for seafarers and other
individuals. Specifically, section 811 requires each MTSA-regulated
facility to ``provide a system for seamen assigned to a vessel at that
facility, pilots, and representatives of seamen's welfare and labor
organizations to board and depart the vessel through the facility in a
timely manner at no cost to the individual.''
    In addition, MTSA-regulated facilities must implement national
maritime security initiatives, including the provision of security
measures for access control. Coast Guard access-control regulations in
title 33 of the Code of Federal Regulations (CFR), Sec.  105.255,
require MTSA-regulated facilities to control an individual's access to
the facility and designate secure areas within the facility, unless the
individual is either authorized to access that area or is escorted by
someone who is authorized to access that area. Accordingly, facility
owners and operators must consider the security implications of
permitting seafarers and other individuals to transit through their
facilities. Coast Guard regulations at 33 CFR 105.200(b)(9) require
MTSA-regulated facilities to ensure coordination of shore leave for

these persons. Finally, the Coast Guard administers facility security
plans under the authority of 46 U.S.C. 70103(c), which is delegated to
the Coast Guard by DHS delegation number 0170.1 (II)(97)(b).
    This regulatory action is necessary to help ensure that owners and
operators of MTSA-regulated facilities provide seafarers and other
covered individuals with the ability to transit through the facility in
a timely manner, at no cost to the individuals. In addition, this
regulatory action is necessary to help ensure that facility owners and
operators provide the same no-cost access between a vessel and facility
gate to covered individuals with a legitimate purpose for accessing the
vessel. By statute, these individuals include representatives of
seafarers' welfare and labor organizations, and pilots. Access by these
statutorily authorized persons will be in accordance with the Facility
Security Plan (FSP).

III. Regulatory History

    On December 29, 2014, the Coast Guard published a notice of
proposed rulemaking (NPRM) to solicit comments on Seafarers' Access to
Maritime Facilities (79 FR 77981). We proposed requiring each owner or
operator of a MTSA-regulated facility to implement a system allowing
seafarers and other individuals to have access between vessels moored
at the facility and the facility gate. Under the proposal, access
should be in a timely manner and at no cost to the seafarer or other
individual.
    In that NPRM, we also published a notice of public meeting to
solicit additional public comments. The Coast Guard held this public
meeting in Washington, DC, on January 23, 2015.
    The initial comment period on the NPRM closed on February 27, 2015.
On May 27, 2015, we reopened the public comment period for an
additional 60 days (80 FR 30189), based on comments requesting an
extension of the comment period and also to specifically seek input on
our estimate of a 10.3-percent noncompliance rate for facilities with
respect to providing seafarers' access. We stated that we would
consider all public comments on the NPRM received during the reopened
comment period.
    The second comment period closed on July 27, 2015 (80 FR 32512). In
total, the Coast Guard received comments from 163 commenters. The
commenters represented private individuals, port authorities, pilots'
associations, industry groups, professional mariner associations,
seafarers' unions, seafarers' churches and centers, other mariner non-
governmental organizations, the World Shipping Council, and the Company
of Master Mariners of Canada.
    As a result of the public comments received on the NPRM, we made
two changes to this final rule. First, we changed the types of
individuals to which the rule applies, to mirror section 811 of the
CGAA (Pub. L. 111-281, codified at 46 U.S.C. 70103 note), by deleting
the proposed category of ``other authorized individuals''. Second, we
changed the regulations to address concerns raised by commenters about
the need to modify their facility security plans (FSPs) to accommodate
the no-cost mandate of the rule.
    Additionally, we proposed to add Sec.  101.112 on federalism, but a
rule published in 2016 put identical language in place, so we have
removed that amendatory instruction (see 81 FR 57652, 57708, effective
date August 23, 2018).

IV. Discussion of Comments and Changes

    In this section, we organize the public comments we received into
18 categories. In each category, we feature a brief description of the
comments and our responses to those comments.

(1) Transportation Worker Identification Credential Issues

    This section discusses comments received on possible interaction
between Transportation Worker Identification Credential (TWIC)
requirements and the access requirements established by this final
rule. As we explain in our responses that follow, this rule does not
change existing TWIC requirements, and whether escorts are or are not
required under TWIC rules does not affect the obligation to provide no-
cost access to the seafarer. The facility has flexibility to decide how
to comply with its TWIC requirements and the no-cost access
requirements of this rule.
    Several commenters noted that a TWIC should be sufficient
identification for a mariner to have unescorted access to a facility.
    While it may be possible on some facilities to design a system for
unescorted access, the concern for secure areas of the facility remains
paramount. To be granted unescorted access to the secure areas of a
facility, the facility security regulations in 33 CFR 105.255 require a
person to have a TWIC and to be authorized to access to the secure
areas of a facility. A TWIC, by itself, does not satisfy the regulatory
requirement and some facilities may opt for escorts to protect the
secure areas of the facility. Other facilities may develop a system
that does not require escorts. Based upon the variety of scenarios
under which a facility has the flexibility to decide how to comply with
the TWIC and the no cost requirements of this rule, a facility has the
option to use equipment and implement procedures that would allow
unescorted access.
    Congress requires MTSA-regulated facilities to grant access through
the facility to seafarers at no cost to the seafarer. This rule does
not change the requirement to escort or otherwise monitor the access of
a person who is not authorized to have unescorted access to the
facility.
    A few commenters stated that seafarers may be precluded from taking
taxis from the vessel to the facility gate because taxi drivers do not
hold TWICs.
    We recognize that the method of transfer between a vessel in port
and the port facility gate may preclude certain options, such as taxis.
It is also possible that taxi drivers could obtain TWICs and the Coast
Guard is aware of several taxi companies that have drivers who have
already obtained a TWIC. We are providing facility owners with the
flexibility to implement a system to provide access that is tailored to
each facility.
    Other commenters expressed concern that the requirements for the
seafarers' access program will duplicate existing TWIC escort
requirements. They urged the Department of Homeland Security (DHS) to
allow individual facilities under the Alternative Security Program
(ASP) to add a seafarers' access system as an annex to their current
FSP and to submit the annex to the Captain of the Port (COTP) for
review and approval.
    We concur with the comment. In lieu of amending the ASP and
submitting the entire plan to the COTP for approval, the owner or
operator of a facility covered under an ASP may submit an annex for
each facility that explains how the facility will comply with the
requirements of this final rule.
    One commenter noted that the port of Port Everglades, Florida, is a
restricted area inside a restricted area, and should not be accessed by
any individual who does not possess a TWIC without a proper escort.
    This final rule provides no-cost access for seafarers and other
covered individuals to a port facility gate. Security of the facility
or who has access to it should already be addressed by the FSP that was
approved by the COTP for each port. Each port facility should ensure
that its FSP is updated and approved to reflect the mandates of the law
to provide no-cost access for seafarers and other covered individuals.
    One commenter stated that ``other authorized individuals'' are
generally

eligible to receive TWICs, but that this is not the case for non-U.S.
seafarers. These seafarers should not be penalized for their inability
to obtain TWICs, and, according to the commenter, they are treated as
criminals because of their lack of visas. Fair treatment of non-U.S.
mariners who are allowed access would help to ensure fair treatment of
U.S. mariners abroad.
    This comment is beyond the scope of this rulemaking, as this final
rule concerns no-cost access through facilities, not unescorted access
or the inability to obtain a TWIC. This rule does not change the
requirement to escort or otherwise monitor the access of a person who
is not authorized to have unescorted access to the facility.

(2) Seafarer Safety Concerning Access to Port Facility Gates

    Many commenters noted that they have experienced unsafe conditions
while attempting to gain facility access, and believe that safe
transportation and pedestrian walkways must be mandated. Many
commenters also complained that the current methods of allowing
seafarers access are burdensome, expensive, or unsafe. Another
commenter noted that they saw no reason to make special accommodations
for seafarers if facility operators feel that safety and security is
reduced if such seafarers are allowed on the facility.
    Several commenters stated that this rule jeopardizes the ability of
private port facilities to deny access to the docks out of safety
concerns to mariners, and also noted the possibility that the free
movement of mariners about the docks could impose an undue burden on
dock operators and create an unsafe situation for mariners.
    One commenter fully endorsed safe transit for mariners to and from
the facility gate, and believed that such safe passage must be
mandated.
    The purpose of this final rule is to implement the Congressional
requirement of no-cost access for seafarers and certain support
organizations through MTSA-regulated facilities. The Coast Guard
considered mandating specific infrastructure, such as pedestrian
walkways, but determined that this could be unnecessary and costly in
many facilities. Moreover, the no-cost access required by section 811
of the CGAA and this rulemaking does not diminish the requirement for
facilities to comply with other laws and regulations, such as
Occupational Safety and Health Administration (OSHA) requirements under
29 CFR. This final rule provides facility owners and operators with
flexibility to ensure the safe passage of seafarers to and from the
facilities' gates through a variety of methods. It remains the
responsibility of the facility owner or operator to ensure safety in
accordance with the approved FSP on file. If conditions are unsafe or
overly burdensome at certain facilities, mariners are encouraged to
contact the local COTP to report such unsafe or overly burdensome
conditions.

(3) Cost Concerns Associated With the Requirement for ``No Cost''
Access to Port Facility Gates

    Many commenters were concerned with the cost of providing seafarers
with no-cost access to facility gates. Some commenters said that the
vessel owner or operator should bear the financial cost of providing
access to facilities, while others said that the facility should bear
the cost, and one commenter said the cost should not be borne by only
one stakeholder. Several commenters proposed regulatory text placing
the financial burden on one party or the other. Two commenters said the
rule should be amended to clearly state that costs for providing access
to facilities can be charged back to the vessel owner, because
relieving vessel owners or operators from the financial burden of no-
cost access goes beyond the intent of the CGAA.
    The CGAA does not specify who should pay for no-cost access for
seafarers. Ultimately, the Coast Guard determined that it is the
facility's responsibility to provide the no cost service, as Coast
Guard regulations already require each facility to have an approved
FSP, which must now include a system for providing no-cost access to
the facility for certain individuals. However, the Coast Guard declined
to specifically prohibit charges to the vessel, and let parties decide
the allocation of costs between facility and vessel. This rule provides
flexibility to facilities on how to comply with the mandate and how to
provide no-cost access for seafarers, as long as its solution does not
result in a cost to seafarers.
    Some commenters suggested that the rule should allow ``reasonable
fees'' that can be passed on to the vessel owner to pay for seafarers'
access. Many commenters noted that if facility owners are allowed to
charge the vessel for seafarer access, the vessel owner will charge the
mariner for access, and the intent of the law will be frustrated.
    We are advising COTPs, through formal and informal communications
with field units, to be on the lookout for this problem. Facilities
that violate any provision of this rule are subject to enforcement by
the COTP. Under 46 U.S.C. 70119 and 33 CFR 101.415(b), any person who
does not comply with the applicable requirements, including 33 CFR part
105, is liable to the U.S. for a civil penalty of not more than $25,000
for each violation.\2\
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    \2\ The statutory penalty amount is adjusted annually to keep
pace with inflation: The current amount of this penalty is located
in 33 CFR 27.3.
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    Pursuant to the International Convention for Safety of Life at Sea
(SOLAS) Chapter XI-2, the International Ship and Port Facility (ISPS)
Code, the International Maritime Organization's ``Reminder in
Connection with Shore Leave and Access to Ships'' MSC/1/Circ.1342, and
the 2016 Amendments to the Convention on the Facilitation of
International Maritime Traffic (FAL) Annex 1, there is an
internationally recognized obligation to protect the interest of
seafarer's shore leave, including shoreside access. As stated in Annex
1 of the FAL, ``Crew members shall be allowed ashore by the public
authorities while the ship on which they arrive is in port, provided
that the formalities on arrival of the ship have been fulfilled and the
public authorities have no reason to refuse permission to come ashore
for public health, public safety or public order. Shore leave shall be
allowed in a manner which excludes discrimination such as on the
grounds of nationality, race, colour, sex, religion, political opinion,
or social origin and irrespective of the flag State of the ship on
which they employed, engaged or work.'' If private actors thwart or
hinder the ability of the United States to fulfill its international
obligations, such as by imposing fees on crewmembers as a condition to
shoreside access in the United States, any and all legal and diplomatic
responses, to include notification to the vessel's flag-state, may be
taken by the U.S. Government. Should the practice of the vessel owner
charging the seamen for access prove to be an on-going issue for
seamen, we will consider the possibility of amending the regulations,
or even seeking new statutory authority, to deal with the matter.

(4) The Proposed Rule Underestimated the Cost of Compliance for
Facilities

    Several commenters stated that the Coast Guard's regulatory
analysis underestimated the cost of compliance for facilities. One
commenter stated that annual facility costs amount to $75,000 annually
and others stated the $1,121 they reference in their comments is an
underestimation and the actual costs will likely be higher than the
costs we estimated in the proposed rule. One commenter also stated
``the expansion of covered individuals will likely

exceed $1,121 per year''. Another commenter stated the annual expense
could be $50,000 as a result of the proposed rule. Another commenter
presented a third-party cost estimate of $185,000 for intra-terminal
seafarer shuttle services for two of five facilities. Included in some
comments is a reference to family members and who would bear the cost.
    Based on these comments and information provided in these comments,
we revised our regulatory analysis for the final rule by increasing the
number of trips that a security guard may make. As a result, the costs
for facilities that choose method 1 increased from about $64,000
initially in the proposed rule, to about $99,000 in this final rule.
For facilities that choose method 2, costs increased from our estimate
in the proposed rule of about $52,000 initially to about $77,000
initially in the final rule. Additionally, estimated annual recurring
costs for method 1 increased from about $36,000 in the proposed rule to
about $67,583 for the final rule. Annual recurring costs for method 2
increased from about $24,000 in the proposed rule to about $45,000 in
the final rule. Please see the supporting regulatory analysis for more
detailed cost estimates.
    Concerning the $1,121 cost referenced by several commenters,
apparently, commenters divided the estimated annualized cost of about
$2.8 million (with annual costs discounted over a 10-year period at a 7
percent discount rate) by the total number of MTSA-regulated facilities
of 2,469. However, in the NPRM, we estimated the majority, 90% of the
facilities, were already compliant and would not incur any additional
costs as a result of this rule. By dividing the annualized cost by the
total population of MTSA-regulated facilities the commenter has
incorrectly estimated a lower cost per facility than the NPRM actually
reported. The regulatory analysis only estimated the costs that
noncompliant MTSA-regulated facilities would incur.
    Additionally using the average cost per facility does not take into
account the different methods with which a facility can choose to
comply with this rule. The five different methods of compliance
estimated in the regulatory analysis vary significantly in cost.
    For example, in the NPRM, we estimated that 10 percent or 42 out of
420 facilities will choose method 1, which we estimate will cost a
facility on average about $99,143 in the initial year. However, for
method 5 the NPRM estimated the initial year costs to be $180.
Therefore, it is more appropriate to evaluate the estimated costs for
facilities based on the method chosen by a given facility.
    Regarding the cost of ``individuals covered'' and the potential for
security-related problems these individuals may pose. In response to
public comments, the Coast Guard removed the terms ``other authorized
personnel'' and ``other authorized individuals'' from paragraph (b) of
Sec.  105.237 (see section 4 below). We expect the removal of these
terms in the final rule will reduce the number of authorized
individuals who would have access to MTSA regulated facilities and
would potentially result in lower costs to the facilities depending on
which method of compliance the facility chooses.
    Table 1 below provides the final rule's estimated costs by method.

                                        Table 1--Average Annual Cost per Method Over a 10-Year Period of Analysis
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                         Compliance method                               Method 1         Method 2         Method 3         Method 4         Method 5
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Weighted Average Annual Cost per Method............................         $70,795          $48,267           $3,153           $1,576             $191
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    Regarding the cost for allowing family members, we have removed
``family members'' from paragraph (b) of Sec.  105.237 of this rule and
the supporting regulatory analysis does not include costs for these
individuals.

(5) The Proposed Rule Underestimated the Noncompliance Rate

    One commenter noted that the percentage of seafarers denied access
to facilities is actually much higher than the 10 percent noted in the
proposed rule (79 FR 77981). Several commenters also stated that we
underestimated the number of seafarers calling on MTSA-regulated
facilities in the proposed rule and the number of seafarers who would
benefit from the proposed rule estimate is much higher.
    We conducted an initial regulatory flexibility analysis and a
regulatory impact analysis for this rule and offered these analyses for
public comment. After receiving comments regarding the 10.3-percent
noncompliance rate of facilities, and the costs associated with
implementing the rule, we reopened the comment period, specifically
asking for input on these figures. We received no further comments on
these matters. In 2016, the Seamen's Church Institute (SCI) released
its annual survey and based on this survey, discussions with SCI,
public comments, and facility population information, we calculated a
new non-compliance rate of 17 percent (35 known noncompliant MSTA-
regulated facilities in the 2016 SCI survey identified by the Coast
Guard, out of 203 surveyed by SCI in its 2016 survey).
    SCI in its 2015 report compiled data about shore access at
facilities actually visited by port chaplains stating, ``The data does
not reflect the number of seafarers who were detained on ships in the
terminals where chaplains and seafarers were denied access through the
terminals. This report is based on restrictions actually observed by
chaplains in their ship visits; accordingly, the number of seafarers
being denied shore leave by terminal restrictions is probably under-
reported.'' The Coast Guard concedes that there is an
underrepresentation of data based on chaplain access to facilities in
the 2015 report; however, SCI made this statement in its 2015 report
only and not in its subsequent 2016, 2017, and 2018 annual reports.
Most ports visited by chaplains in SCI's 2016, 2017 and 2018 surveys
allow unrestricted access to chaplains as stated in the reports.
Moreover, their public comment indicates the noncompliance rate could
be higher than the rate we extrapolated from their surveys in the NPRM.
    Based on their comment we reached out to SCI and were able to
specifically identify the noncompliant MTSA-regulated facilities in the
2016 SCI survey. This allowed us to narrow the scope of the analysis to
only those facilities that would be affected by this rule and provided
us with the best estimate of noncompliant MTSA-regulated facilities
available. We were unable to separate out the MTSA-regulated facilities
in SCI's 2017 & 2018 report which is why we did not use the more recent
surveys.
    We acknowledge that the noncompliance rate could be different than
our estimated 17 percent noncompliance rate used in this final rule,
which we based on SCI's 2016 survey. However, this is the best data we
were able to obtain. Although several commenters provided information
on specific ports, we were not able to estimate an overall

compliance rate based on the data they provided.
    By using a 17 percent noncompliance rate from known non-compliant
facilities only and applying it to the total number of estimated MTSA-
regulated facilities of 2,469, we obtained the number of about 420
facilities (2,469 facilities x 0.17) that will be modifying operations,
in addition to documenting the changes in their FSPs.
    Regarding the number of seafarers who would benefit from the
proposed rule. In the supporting regulatory analysis for the proposed
rule, we stated that on average from 2006 to 2014, 907 seafarers were
denied access due to terminal restrictions and that the proposed rule
would ensure access to these seafarers. We obtained this figure using
SCI's reports that they published in these years. In the supporting
regulatory analysis for the final rule, we removed this number and
present a noncompliance rate, which we apply to facilities and not to a
quantified number of seafarers calling on MTSA-regulated facilities or
the actual number of seafarers who would benefit from the proposed
rule. In addition, we did not rely on another report, which references
several databases, mentioned by one commenter because we could not use
the data in the report to determine the number of seafarers being
denied access at MTSA-regulated facilities.
    One commenter said that if only 10 percent of facilities are not
providing these services, the Coast Guard should focus solely on those
facilities instead of changing the entire system. In addition, other
commenters complained that this rule places too high a burden on
facilities. For example, one commenter stated that the rule would
result in extreme changes to its FSP.
    The statute directs that ``each'' FSP ``shall provide a system''
for no-cost access to the facility. The Coast Guard does not have
discretion to waive this requirement, or to apply it only to certain
facilities. We expect all MTSA-regulated facilities to provide a system
for no-cost access to the facility and update their FSPs to document
their system of access. As a result, these facilities will incur
operational costs and costs to modify their FSPs.

(6) The Rule Should Explicitly Define the Individuals Who Are Allowed
No-Cost Access for Seafarers to Port Facility Gates

    Several commenters discussed the question of who should be allowed
no-cost access, as 33 CFR 105.237(b) proposed access for (1) the
seafarers assigned to a vessel moored at the facility; (2) the pilots
and other authorized personnel performing work for a vessel moored at
the facility; (3) representatives of seafarers' welfare and labor
organizations; and (4) other authorized individuals in accordance with
the DoS or other arrangement between the vessel and facility. One
commenter believed that proposed Sec.  105.237(b)(2) went beyond the
intent of the CGAA by expanding the list to ``other authorized
personnel.''
    Several commenters asked the Coast Guard to define ``other
authorized individuals'' in Sec.  105.237(b)(4), saying that this
catch-all category (1) was too broad in scope, (2) could jeopardize the
safety and security of the facility, and (3) could become very costly
for facilities to provide no-cost access to such a wide array of
people. On the other hand, some commenters encouraged the Coast Guard
to extend no-cost access to the maximum number of individuals,
including those individuals not already enumerated in the proposed
rule. For example, one commenter stated that the proposed ``other
authorized individuals'' category should include ship service
providers. Another commenter stated that pilots should be their own
category of individuals covered by the seafarer's access requirements
of this rule.
    After consideration of the public comments, we agree that the rule
should explicitly enumerate which persons or groups are provided no-
cost access, and that the list proposed in the NPRM was more extensive
than the requirements in Section 811 of the CGAA. As such, we are
limiting the no-cost access requirement to the people and groups
specifically required by the Act. We removed proposed paragraph (b)(4),
the ``other authorized individuals'' category from the list of
individuals in Sec.  105.237(b), for whom no-cost access will be
provided. We also removed the category of ``other authorized
personnel'' in paragraph (b)(2), following pilots. In striking these
additional categories of personnel, we are not prohibiting these
individuals from accessing a facility or a vessel. That decision is
based on the individual facility's FSP, which is approved by the COTP.
Rather, by deleting these categories of personnel from the no-cost
list, we are removing those types of personnel from the list of
individuals for whom the facility must provide no-cost access. Finally,
as previously stated, we also revised Sec.  105.237(b)(2) of this final
rule to solely reference pilots as an enumerated group to be provided
no-cost assess.

(7) Foreign Ports Manage Seafarers' Access Better Than U.S. Ports

    Several commenters noted that many foreign ports have systems in
place to enable seafarer access to shore resources. One commenter noted
that the rule should ensure fair treatment of U.S. vessels and non-U.S.
vessels, and it should ensure that all U.S. ports treat all vessels
fairly and do not place restrictions on certain vessels.
    We encourage facility owners and COTPs to consider successful
access systems already in use--including those in foreign ports--when
designing their own systems for seafarer access.

(8) The Coast Guard Should Extend the Comment Period

    A few commenters asked that we extend the comment period or hold
one or more public meetings for this rulemaking. One commenter noted
that comments were not being posted in a timely manner, and one
commenter believes that the comment period should be extended for 60
days to allow facilities to realistically study how they will be
impacted.
    The NPRM was published in the Federal Register on December 29,
2014, with a 60-day public comment. The Coast Guard held a public
meeting on January 23, 2015. After requests for more time were
received, we extended the comment period for an additional 60 days (by
a document published in the Federal Register on May 27, 2015). We
believe providing 4 months of public comment and holding a public
meeting allowed ample opportunity for members of the public and
industry to read the NPRM and reply with any comments.
    During both public comment periods and the public meeting, we
received 163 comments. These commenters included private individuals,
port authorities, pilots associations, industry groups, professional
mariner associations, seafarers' unions, seafarers' churches and
centers, other mariner non-governmental organizations, the World
Shipping Council, and the Company of Master Mariners of Canada. We did
not exclude any comment that was submitted to the docket.

(9) The Rule Further Restricts Seafarers Who Are Already Restricted by
Existing Regulations That Do Not Help the Maritime Industry

    Two commenters noted that mariners deal with burdensome security
requirements already, and the Coast Guard should not further restrict
mariners with additional regulations and ``red tape.'' One commenter
argued that the burdensome security

requirements drive people away from the maritime industry.
    The purpose of this rule is to enable seafarers to obtain no-cost
access to port facilities. This rule imposes no increase in the
regulatory burden on the seafarer.

(10) The Proposed Rule Is Burdensome and Lacks Consistency or
Enforcement

    Some commenters remarked that the proposed rule has burdensome
procedures. Other commenters noted that the proposed rule has no means
of consistency or enforcement, and that the Coast Guard has failed to
enforce provisions set forth by the COTP.
    We disagree. The rule provides facilities with a great deal of
flexibility in complying with the statutory mandate to provide no-cost
access for seafarers to the facilities' gates. This flexibility is
manifested in both the method that a facility may employ to provide no-
cost access and in the manner in which a facility can determine whether
the no-cost access is timely. Facilities that violate any provision of
this rule are subject to enforcement by the COTP. Under 46 U.S.C. 70119
and 33 CFR 101.415(b), any person who does not comply with the
applicable requirements, including 33 CFR part 105, is liable to the
U.S. for a civil penalty of not more than $25,000 for each violation.

(11) The Proposed Rule Is Unconstitutional

    One commenter said that the proposed rule is unconstitutional and
directly conflicts with MTSA.
    We disagree. While the commenter did not specifically cite the
Takings Clause, the Coast Guard has interpreted the comment to invoke
this provision of the Constitution (U.S. Constitution, Amendment V).
Section 811 of the CGAA and proposed 33 CFR 105.237 require facilities
to provide access that enables individuals to transit to and from a
vessel moored at the facility and the facility gate, in a timely manner
and at no cost to the seafarer. Through this rulemaking, the Coast
Guard does not mandate the facility take any particular action that
would permanently disrupt the operations at the facility or deny the
facility owner all economic benefit of the property. Rather, individual
facilities would have flexibility to implement these requirements in
the manner best suited for the individual facility when a vessel is
moored at the facility. Notwithstanding the flexibility provided by the
proposed rule for facilities to tailor shore access requirements to the
design and needs of the facility, the commenter did not present the
Coast Guard with any data or other information to support their claim
that the proposed rule would constitute a taking (or regulatory taking)
of the facility's property. In addition, the commenter did not provide
data or other information to support their statement that the proposed
rule directly conflicts with MTSA. As the Coast Guard stated in the
NPRM preamble (79 FR 77981, 77983) and reiterates in this final rule,
the Coast Guard is authorized to issue regulations governing access
requirements to MTSA-regulated facilities.

(12) The Proposed Rule Will Have a Positive Economic Impact on
Communities

    One commenter predicted that this rule will have a positive
economic impact on communities where secure maritime facilities are
located.
    Whether that is true or not, Congress has directed the Coast Guard
to require the FSP to provide a system for seafarers to transit through
the facility in a timely manner, at no cost to the individuals, and we
have done that in this final rule.

(13) The Proposed Rule Should Use the Same Language as the
International Ship and Port Facility Security Code

    Several commenters requested that the rule use the same language as
the International Ship and Port Facility Security Code (ISPS) Code.
Specifically, the commenter recommended that we utilize language from
the ISPS Code in the FSP to ``facilitate'' access to and from a vessel.
    We believe that the final rule conforms to international
conventions, specifically the ISPS Code. We have chosen to use the
words ``implementation of a system'' in Sec.  105.237 as that is a
stronger imperative than ``facilitate'' and requires positive action on
the part of the facility to devise and put in place a system in
accordance with the mandate of Section 811 of the CGAA.

(14) The Coast Guard Should Consider the Impact of the Proposed Rule on
Existing ASPs and FSPs

    One commenter noted that they use the Coast Guard-approved ASP,
``Industry Standard for Passenger Vessels and Small Passenger Vessels
and their Facilities,'' and requested that the proposed rule be amended
so that there will be no need to amend their ASP to conform to the
seafarer access rule until the regularly-scheduled renewal period
occurs.
    Another commenter believed that developing a new access system
would be time-consuming and impossible to complete by the deadline.
This commenter suggested that a 10-month submission window for an
amended FSP would be reasonable, but that the implementation deadline
should be extended to possibly a year after receipt of the updated
plan's approval. Two other commenters also said the implementation date
should be extended. In contrast, another commenter stated that the
compliance deadline should be moved forward to 6 months (instead of 1
year) because people should already be complying.
    Each facility operating under a Coast Guard-approved ASP must
include seafarer access as directed by the ASP itself. This may be in
the form of an annex or appendix explaining how the facility will
comply with this rule. This document must be submitted to and approved
by the cognizant COTP in the location of the facility submitting the
annex.
    The Coast Guard believes there are various means by which a
facility may accomplish this mandate depending on the facility design,
equipment, procedures and location. The Coast Guard has worked with the
Seamen's Church and with individual facilities to discuss many options
for complying with this Congressional mandate and has provided
flexibility within this rule for facility owners and operators to
comply with its TWIC requirements and the no-cost access requirements
of this rule.
    However, in light of the comments on timing we have extended the
date that each facility owner or operator must implement a system to 14
months after publication of this final rule. This additional time
allows more time for the COTP to work with each facility in the event
of deficiencies in the plan.

(15) Coordination Between Seamen's Missions and the Coast Guard

    One commenter questioned whether a partnership between the Coast
Guard and seamen's missions is possible for port control.
    We agree that coordination is possible, and currently exists at
several facilities. Information from seamen's missions facilitates port
control. Since the rule enhances the well-being of seafarers by
providing no-cost access from the vessel moored at the facility to the
facility's gate, we are hopeful that the rule will further our
relationship with seamen's missions.

(16) The Coast Guard Should Publish Guidance That Includes Explanatory
Language Found in the Preamble of the Proposed Rule

    One commenter was concerned that the explanatory language in the
NPRM

will be absent from the actual CFR, perhaps leaving an undesirable
opening in interpretation of the rule. The commenter stated that
explicit language is desirable and necessary in implementing the rule.
Several commenters recommended that the Coast Guard publish a
Navigation and Vessel Inspection Circular to accompany the final rule
to reflect the basic explanatory language as written in the preamble to
the proposed rule.
    While we have not included all the explanatory text from the
preamble in the regulatory text itself, we rely on the broader
explanation in the preamble to provide the support and basis for the
regulatory text. The Coast Guard does not believe a NVIC is necessary
at this time.

(17) The Coast Guard Should Not Invalidate Shore Passes After 29 Days

    One commenter took issue with a regulation that invalidates shore
passes after 29 days. The commenter stated that this regulation makes
it difficult for crewmembers who have been at sea for long periods to
gain access to shore, even if they possess approved U.S. visas. The
commenter said that crewmembers were recently detained on board a
vessel for 2 months; they held valid U.S. visas but expired shore
passes, and U.S. Customs and Border Protection (CBP) in both New
Orleans and Galveston would not help them gain shore access or return
them to their home countries.
    The commenter was in favor of the proposed rule in that it will
assist seafarers transiting between vessels and the terminal gates. The
comment about the invalidation of shore passes after 29 days, however,
does not pertain to a Coast Guard regulation, but to a statutory
requirement imposed by section 252 of the Immigration and Nationality
Act (8 U.S.C. 1282), which is administered by CBP. The Coast Guard's
regulation is concerned with providing no-cost access to facility gates
for seafarers. Customs clearance is beyond the scope of this regulation
and a change to the validity period of shore passes is beyond our legal
authority. Therefore, no changes were made to the final rule in
response to this comment.

(18) Implementing the Rule With Regard to the Use of Taxi Companies,
Hybrid Access Methods, Brown Water Vessels, Tug and Tows, and
Integrated Tug Barge (ITB) and Articulated Tug Barge (ATB) Crews

    One commenter who favored the proposed rule had questions regarding
facility baseline performance evaluations: How will facilities be rated
on use of taxi companies that meet facility requirements? Will
``hybrid'' methods of access be acceptable to COTPs? What is the status
of brown water vessels, tugs and tows, and ITB and ATB crews? The
commenter was also concerned with taxi company availability, the
availability of reasonably priced alternatives to taxis, and the
location near commercial infrastructure and shopping centers.
    This rule requires the COTP to approve the method of seafarer
access that a facility intends to provide. As such, the COTP will
examine the methods of access proposed by a facility in light of that
facility's FSP to determine if they meet the requirements of both this
rule and the FSP.
    We are unclear as to what the commenter means by ``hybrid'' methods
of access. If the commenter is referring to the rule's allowance for a
facility to choose between different methods of seafarer access, all
such methods will be reviewed by the COTP for approval. We are also
unclear as to what the commenter means by the ``status of brown water
vessels, tugs and tows, and ITB and ATB crews.'' If the commenter is
referring to whether or not such vessels, tugs and tows, and ITB and
ATB crews are subject to the requirements of this rule, the rule
applies to covered facilities that may be used by such vessels and
crew. In short, the rule ensures that facilities do not charge
seafarers for access to their gates, irrespective of the type of vessel
and crew docked there.
    Regarding the commenter's concern about taxi availability,
reasonably priced alternatives to taxis, and the location near
commercial infrastructure and shopping centers, these are conditions
that each facility will need to evaluate to determine which modes of
access make financial sense for that facility while meeting the
statutory mandate. The rule provides the flexibility to allow facility
owners and operators to design a system of access that makes sense to
them. Incorporation of the system of access in the approved FSP allows
for the necessary oversight by the local COTP.

(19) Timeliness of Seafarer Access to Port Facility Gates

    Many commenters noted that a seafarer's definition of ``timely
access'' may vary from a facility's definition of ``timely access.''
    We believe that the issue of ``timely access'' is best managed by
the COTP. Because of the many different types of facilities and FSPs,
the local COTP is in the best position to evaluate concerns and address
complaints of facilities providing untimely access.
    One commenter stated that ``timely access'' should be agreed on by
both the facility operator and the COTP.
    This rule states that facility owners and operators are responsible
for implementing a system that provides access for seafarers between
vessels moored at the facility and the facility gate, in a timely
manner and at no-cost to the seafarer. Every facility is different,
which makes ``timely access'' impossible to prescribe. Ultimately, the
COTP will decide whether the proposed timely access is adequate.
    One commenter expressed concern with seafarers having timely access
to port facility gates, especially for seafarers who are in port for
short periods of time.
    We agree. This is an important component in ensuring that port
facilities comply with the mandates of this rule. In Sec.  105.237(c),
we include factors that a facility, subject to review by the COTP, must
consider in allowing seafarers no-cost access to the facility's gate,
in a timely fashion.
    One commenter stated that the length of stay for a vessel is
irrelevant in determining whether or not a seafarer's access to the
facility gate is timely.
    We disagree. While facilities have great flexibility under this
rule in providing timely access between the vessel and the facility
gate, some parameters are necessary to meet the requirements of Section
811 of the CGAA. We use length of time in port as a metric for the COTP
to determine whether or not a wait time to and from the facility gate
is reasonable.
    One commenter stated that the Coast Guard needs to define
``reasonable time'' in the regulatory text more specifically. The
commenter asks if the Government will take into consideration the size
of the group when it comes to ``reasonable time.''
    A second commenter understands that it is impossible to develop a
one-size-fits-all definition of ``timely access,'' and that it is
impractical for facilities to provide for every potential combination
of factors in their security plans. This commenter requested that the
Coast Guard clarify how the COTP will determine ``timely access'' on a
case-by-case basis.
    Another commenter stated that a modest 10-minute delay waiting for
transportation during half their visits equals more than 3,443 hours of
lost time. Additionally, the commenter noted that waiting on
transportation potentially makes a service provider's day dangerously
long, putting them and others at risk. The commenter offered

the following additional factors that a facility must consider when
establishing timely access without unreasonable delay: (1) The expected
number of ship service personnel who will be visiting a ship; (2) the
costs of transportation relative to delay time costs incurred by ship
service providers; and (3) the costs of transportation relative to
safety impacts to service providers.
    One commenter noted that the proposed rule appropriately explains
factors to consider and to document in FSPs to provide timely access
without reasonable delay.
    We appreciate the additional factors supplied by commenters, and
believe that Sec.  105.237(c) already covers most, if not all, of these
factors. We provide the COTP with the authority to review these points
to ensure that the facility is providing timely access to seafarers.
These factors in Sec.  105.237(c) provide a framework for the COTP to
decide, on a case-by-case basis, whether or not the facility is
complying with the mandates of this regulation. Covered individuals may
contact the local COTP or representatives of seafarers' welfare and
labor organizations with any facility access concerns.

(20) The Coast Guard Should Reconsider Where It Intends To Place the
Seafarers' No-Cost Access Requirements in the CFR

    One commenter asked why the new section in 33 CFR part 105 is
placed between Sec. Sec.  105.235 and 105.240. This commenter suggested
that the new section be placed in Sec.  105.257, entitled ``Security
Measures for Newly Hired Employees,'' as Sec.  105.257 does not merit
its own standalone section and has caused confusion among facilities.
    While we appreciate this commenter's suggestions, we are
implementing section 811 of the CGAA, and changes to 33 CFR 105.257 are
outside the scope of this rule. We will consider whether a future
rulemaking should update, change, or improve regulations at 33 CFR
105.257.

(21) The Proposed Rule Should Clarify ``Shore Leave'' and ``Access'' To
Reduce the Risk of Seafarers' Noncompliance With CBP or Union Rules

    One commenter supporting the rule stated that ``shore leave'' and
``access'' should be clarified to reduce the risk of noncompliance with
CBP or union rules.
    We believe these terms do not need defining in this rulemaking, as
the rule specifically defines the kinds of access that is required. In
addition, this rule is concerned with providing no-cost shore access
for certain individuals and does not concern shore leave or other terms
that may raise customs and immigration issues. Irrespective of this
rule's mandates and requirements, seafarers are still required to
comply with all CBP rules when arriving in and departing from the
United States.

V. Regulatory Analyses

    We developed this final rule after considering numerous statutes
and Executive orders related to rulemaking. Below we summarize our
analyses based on these statutes or 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. Because this rule is
not a significant regulatory action, this rule is exempt from the
requirements of Executive Order 13771. See OMB's Memorandum titled
``Guidance Implementing Executive Order 13771, titled `Reducing
Regulation and Controlling Regulatory Costs''' (April 5, 2017).
    Table 2 shows the impacts of the final rule by category. A final
Regulatory Assessment is available in the docket, and a summary
follows.
    We estimate the total cost to industry and the Government to be
about $53.9 million over a 10-year period of analysis using a 7 percent
discount rate. We estimate the annualized cost to be about $7.7 million
using a 7 percent discount rate. See Table 2.

            Table 2--Summary of the Impacts of the Final Rule
------------------------------------------------------------------------
             Category                              Summary
------------------------------------------------------------------------
Applicability.....................  Owners or operators of MTSA
                                     facilities regulated by the Coast
                                     Guard are required to implement a
                                     system that provides seafarers with
                                     access between the shore and
                                     vessels moored at the facility.
Affected population...............  2,469 MTSA-regulated facilities will
                                     update FSPs, an additional 420 MTSA-
                                     regulated facilities will update
                                     FSPs and facility operations.
Total costs to industry and         10-Year: $53.9 million.
 Government (7% discount rate).     Annualized: $7.7 million.
Unquantified benefits.............  Provides seafarers and covered
                                     individuals timely access between a
                                     vessel and a MTSA-regulated-
                                     facility gate.
                                    Enhances the safety, health, and
                                     welfare of seafarers, and the
                                     overall quality of life by allowing
                                     seafarers access to fundamental
                                     human services.
                                    Conforms to the intent of the ISPS
                                     Code and IMO's FAL Convention.
                                    Reduces regulatory uncertainty by
                                     harmonizing the Coast Guard's
                                     regulations with Sec. 811 of Public
                                     Law 111-281.
------------------------------------------------------------------------

Affected Population

    The Marine Information for Safety and Law Enforcement (MISLE)
system is the Coast Guard's internal database that contains MTSA-
regulated facility population data. According to MISLE information
reviewed in January 2017, there were 2,469 MTSA-regulated facilities in
2016. This number is consistent with facility population data for the
previous 5 years as well; the population number remains around

2,500 +/- 40 facilities. We anticipate that all 2,469 facilities will
update their FSPs with the system of seafarer access description within
10 months of publication of the final rule. The total implementation
time is 14 months, with Coast Guard COTPs having 4 months to approve
the plans for implementation. Any changes in the following years of
analysis will be accomplished under existing updates to FSPs;
therefore, we account for no marginal change in opportunity cost beyond
the first year of analysis.
    Additionally, some facilities will need to modify existing
operations to implement a system of seafarer access. In this analysis,
we refer to this group of facilities as the noncompliant facilities. In
the NPRM, we estimated the rate of noncompliant facilities at 10.3
percent (of the 2,469 total facilities). We estimated this rate using
the SCI's Center for Seafarer's Rights annual survey from the year
2011. We received five individual public comments out of 163 commenters
who suggested the non-compliance rate was higher than 10.3 percent;
however, an alternative compliance rate was not supplied in any of the
public comments. We used facility information mentioned in public
comments, specifically SCI's 2016 report, to calculate the new non-
compliance rate of 17 percent (please see the Coast Guard's explanation
of the use of this rate in the comment response section of this
preamble), which we based on known noncompliant MTSA-regulated
facilities divided by the number of MTSA facilities surveyed by SCI
(35/203). Also, SCI's surveys are more comprehensive than any data on
seafarer access the Coast Guard can obtain. As noted in the Regulatory
History section of this preamble, we reopened the public comment period
for an additional 60 days (80 FR 30189), specifically seeking input on
our estimate of a 10.3 percent noncompliance rate for facilities with
respect to providing seafarers' access. We received no new information
as a result of the reopened comment period.
    For the final rule's regulatory impact analysis, we strictly used
data from SCI's 2016 survey. With this survey and through discussion
with the SCI, we calculated a noncompliance rate of 17 percent for the
final rule. At this rate, 420 (0.17 x 2,469, rounded) out of the total
2,469 facilities affected by this rule will need to develop and
implement a system of seafarer access in addition to updating the FSP.
We also calculated operational costs for these 420 facilities.

Costs

    There are two cost components in this final rule--administrative
and operational. Prior to the publication of this rule, all MTSA-
regulated facilities described a system of access in the FSP. These
descriptions, however, may not contain all the necessary details
required by this final rule. Therefore, we calculated these
administrative costs for the entire affected population. The total cost
of this provision includes 6 hours of labor at the executive wage rate,
10 minutes of labor at the administrative assistant wage rate, plus 10
cents for stationery:
    2,469 population x [(6 hours \3\ x $67.59 wage rate \4\) + (0.17
hours x $40.09 wage rate) + $0.10 stationery)] = $1,018,352. The 420
facilities implementing new seafarer access operations will choose from
the six compliance options provided in section 105.237(d), as listed
below:
---------------------------------------------------------------------------

    \3\ In the collection of information (OMB control number 1625-
0077), we estimate that it takes 100 hours to create a new FSP made
up of 18 sections. We estimate that it would take 6 hours (100 hours
/ 18 sections = 5.55 hours) to create a new section in the FSP.
    \4\ See Chapter 3.1 of the standalone RA for information
regarding wages.
---------------------------------------------------------------------------

    (1) Method 1--Regularly scheduled shuttle service;
    (2) Method 2--On-call shuttle service;
    (3) Method 3--Taxi service;
    (4) Method 4--Arrangements with the seafarers' welfare
organizations;
    (5) Method 5--Monitoring of pedestrian routes; or
    (6) Method 6--Any other system approved by the COTP.
    Any facility implementing a third-party operated system of access,
such as Method 4, will need to designate a supplemental method of
access in case the third-party organization is unavailable or fails to
provide access to seafarers at any time. For the purposes of this
analysis, we assume such facilities will partner with taxi services to
provide this supplemental access. We do not include supplemental
methods of access costs for facilities complying with Method 3, which
will also provide access via a third party (taxi drivers), because we
assume (and calculate costs for) a sufficient number of taxis. We also
do not calculate costs for any facilities complying with this rule
through Method 6. We assume facilities would choose the sixth option
only if that option had a lower cost than the first five options.
    Based on information provided by Coast Guard subject matter experts
(SMEs) in the Office of Port and Facility Compliance and on information
from Coast Guard inspectors nationwide, we expect that a small
percentage of facilities are sufficiently large or dangerous enough to
warrant the purchase of a passenger van used solely to provide a
regularly scheduled or on-call gate access service to seafarers.\5\ A
taxi service, alternatively, provides a flexible and relatively cheap
alternative. Some facilities would choose to partner with a seafarers'
welfare organization to provide transit, a presumably cost-free option,
where available, coupled with a taxi service. Based on discussions with
several SMEs with knowledge of port and facility access, most
facilities would choose pedestrian monitoring. Due to current MTSA
regulations most facilities are already equipped with security guards
and monitoring. If facilities choose this method we anticipate an
additional 1 hour of training annually to review security protocol in
the event that a seafarer leaves the designated passageway.
---------------------------------------------------------------------------

    \5\ Our MISLE database does not capture the physical size of
MTSA-regulated facilities.
---------------------------------------------------------------------------

    Table 3 provides the number of affected facilities and the per-
facility costs based on chosen requirement.

                           Table 3--Administrative and Operational Costs per Facility
                                                   [By method]
----------------------------------------------------------------------------------------------------------------
                                                                      Annual
                                                                     recurring        Annual       Total 10-year
                                    Population     Initial cost   cost, years 2-     recurring     undiscounted
                                                                      5, 7-10      cost, year 6
----------------------------------------------------------------------------------------------------------------
Cost Per Facility (FSP                     2,469            $412              $0              $0            $412
 Documentation).................
----------------------------------------------------------------------------------------------------------------

                                          Cost Per Facility Operations
----------------------------------------------------------------------------------------------------------------
Method 1: 24-hour Shuttle                     42          99,143          67,583          68,138         707,945
 Service........................
Method 2: On-call Shuttle                     84          76,615          45,055          45,611         482,666
 Service........................
Method 3: Taxi..................              84           5,897           2,848           2,848          31,529
Method 4: Seafarers' Welfare                  42           2,948           1,424           1,424          15,764
 Organization...................
Method 5: Monitoring of                      168             191             191             191           1,910
 Pedestrian Routes..............
----------------------------------------------------------------------------------------------------------------

    Table 4 provides the key costs for the methods and an explanation
of changes from the NPRM to the final rule.

                                          Table 4--Key Cost Inputs \6\
----------------------------------------------------------------------------------------------------------------
             Input                  Final rule            NPRM         Reason for change          Source
----------------------------------------------------------------------------------------------------------------
MTSA facility noncompliance     17%..............  10.3%............  Updated with        http://
 rate.                                                                 information from    seamenschurch.org/
                                                                       2016 SCI report.    sites/default/files/
                                                                                sci-shore-leave-
                                                                                survey-2016.pdf.
Security guard wage...........  $20.58...........  $19.41...........  Updated to 2016     http://www.bls.gov/oes/
                                                                       wage rates.         2016/may/
                                                                                oes339032.htm.
Cargo and freight agents wage.  $30.63...........  $30.81...........  Updated to 2016     http://www.bls.gov/oes/
                                                                       wage rates.         2016/may/
                                                                                oes435011.htm.
Managers......................  $67.59...........  $63.35...........  Updated to 2016     http://www.bls.gov/oes/
                                                                       wage rates.         2016/may/
                                                                                oes113071.htm.
Administrative assistants.....  $40.09...........  $35.81...........  Updated to 2016     http://www.bls.gov/oes/
                                                                       wage rates.         2016/may/
                                                                                oes436011.htm.
Passenger van.................  $28,995 to         $28,995 to         Updated with        http://
                                 $33,800.           $33,800.           current             www.chevrolet.com/
                                                                       information.        express/passenger-
                                                                                van.
                                                                                https://www.ford.com/trucks/transit-passenger-van-wagon/.
                                                                                https://www.gmfleet.com/chevrolet/express-passenger-van.html.
                                                                                https://www.chrysler.com/pacifica.html#app-compare compare.
                                                                                http://www.nissancommercialvehicles.com/nv-passenger?dcp=psn.58700002307877422&gclid=CPm5ttfug9QCFYFJgQodlkoMmA&gclsrc=ds&dclid=CPOS89fug9QCFcpkwQodGnoAJw GnoAJw.
Cost of gas...................  $2.25............  $4.04............  Updated with        https://www.eia.gov/
                                                                       current             dnav/pet/
                                                                       information.        PET_PRI_GND_DCUS_NUS_
                                                                                A.htm.
Average miles per gallon,       13.4.............  13...............  Updated with        http://
 passenger van.                                                        current             www.fueleconomy.gov/
                                                                       information.        feg/byclass/
                                                                                Vans__Passenger_Type2
                                                                                016.shtml.
Driving speed.................  10 mph to 30 mph.  15 mph to 30 mph.  Updated with        http://www.panynj.gov/
                                                                       current             port/pdf/highway-
                                                                       information.        speed-limits-
                                                                                2008.pdf.
                                                                                http://www.fmtcargo.com/terminal_guides/fmt_guide_burns_harbor.pdf.
                                                                                http://www.fmtcargo.com/terminal_guides/fmt_guide_cleveland.pdf df.
                                                                                http://www.fmtcargo.com/terminal_guides/fmt_guide_port_manatee.pdf.
                                                                                http://www.fmtcargo.com/terminal_guides/fmt_guide_lake_charles.pdf.
                                                                                http://www.fmtcargo.com/terminal_guides/fmt_guide_milwaukee.pdf df.
Driving time, 1 lap...........  0.33 hours.......  0.33 hours.......  No change.........  ......................

TWIC..........................  $277.82 or         $401.00..........  Updated with        https://www.tsa.gov/
                                 $268.04.                              current             for-industry/twic.
                                                                       information;
                                                                       created two TWIC
                                                                       costs: one for
                                                                       security guards
                                                                       and one for taxi
                                                                       drivers,
                                                                       respectively.
Taxi driver Wage..............  $18.55...........  $17.92...........  Updated to 2016     http://www.bls.gov/oes/
                                                                       wage rates.         2016/may/
                                                                                oes533041.htm.
Miles to enrollment center....  100 miles........  100 miles........  No change.........  ......................
Average commute speed, mph....  28.87............  28.87............  No change.........  ......................
----------------------------------------------------------------------------------------------------------------

    Table 5 presents the total discounted costs of the final rule to
industry over a 10-year period of analysis.

                 Table 5--Summary of Costs to Industry 10-year, 7- and 3-Percent Discount Rates
----------------------------------------------------------------------------------------------------------------
                                                                                Discounted costs
                           Year                               Undiscounted   -----------------------------------
                                                                  costs              7%                3%
----------------------------------------------------------------------------------------------------------------
1.........................................................       $12,269,354       $11,466,686       $11,911,994
2.........................................................         6,954,316         6,074,169         6,555,110
3.........................................................         6,954,316         5,676,793         6,364,184
4.........................................................         6,954,316         5,305,414         6,178,820
5.........................................................         6,954,316         4,958,331         5,998,854
6.........................................................         7,024,326         4,680,605         5,882,762
7.........................................................         6,954,316         4,330,798         5,654,495
8.........................................................         6,954,316         4,047,475         5,489,801
9.........................................................         6,954,316         3,782,687         5,329,904
10........................................................         6,954,316         3,535,222         5,174,664
                                                           -----------------------------------------------------
    Total.................................................        74,928,208        53,858,180        64,540,588
----------------------------------------------------------------------------------------------------------------
Annualized..................................................................         7,668,193         7,566,126
----------------------------------------------------------------------------------------------------------------
Note: Totals may not sum due to independent rounding.

    The Government will incur costs as a result of modifications made
to FSPs by MTSA-regulated facilities personnel in Years 1 and 2 because
the Coast Guard must review and approve the modifications to the FSPs.
As a result, MTSA-regulated facilities with FSPs will have 10 months to
submit their plans to the respective Coast Guard sectors for review and
the sectors will have 4 months to approve the plans for implementation.
We then divide the one-time government cost between Years 1 and 2
equally. Based on information from Coast Guard SMEs, we estimated 30
minutes for an E-4, E-5, or E-6 to review the modified FSP. Using the
average hourly wage rate of the three ranks, we calculate the one-time
cost to review all FSPs as follows:

    \6\ We present the mean hourly wage rates as loaded wage rates
in 2016 dollars using 2016 BLS Benefits multiplier: http://www.bls.gov/ncs/ect/sp/ececqrtn.pdf. For more information on wages,
see Chapter 3 of the supporting regulatory analysis in the docket.
---------------------------------------------------------------------------

2,469 FSPs x $51.33 wage rate/hour \7\ x 0.5 hours = $63,367
---------------------------------------------------------------------------

    \7\ From the Commandant Instruction 7310.1Q (https://www.uscg.mil/directives/ci/7000-7999/CI_7310_1Q.pdf) for
reimbursable rates, the hourly rates for E-4s, E-5s, and E-6s are
$44, $52, and $58, respectively. These rates result in an average
$51.33 per hour for reviewing the FSPs.

As explained above, we divided the estimated government cost of $63,367
equally between Years 1 and 2, or $31,683.50 in each year (Table 6
below takes into account rounding). Table 6 presents the total
discounted costs to Government and industry over a 10-year period of
analysis. We estimate an annualized cost of the final rule to industry
and government to be about $7.7 million using a 7 percent discount
rate. See table 6.

                     Table 6--Summary of Costs of the Final Rule to Government and Industry
                                        [7 and 3 percent discount rates]
----------------------------------------------------------------------------------------------------------------
                                                                                Discounted costs
                           Year                               Undiscounted   -----------------------------------
                                                                  costs              7%                3%
----------------------------------------------------------------------------------------------------------------
1.........................................................       $12,301,038       $11,496,297       $11,942,755
2.........................................................         6,986,000         6,101,843         6,584,975
3.........................................................         6,954,316         5,676,793         6,364,184
4.........................................................         6,954,316         5,305,414         6,178,820
5.........................................................         6,954,316         4,958,331         5,998,854
6.........................................................         7,024,326         4,680,605         5,882,762

7.........................................................         6,954,316         4,330,798         5,654,495
8.........................................................         6,954,316         4,047,475         5,489,801
9.........................................................         6,954,316         3,782,687         5,329,904
10........................................................         6,954,316         3,535,222         5,174,664
                                                           -----------------------------------------------------
    Total.................................................        74,991,575        53,915,465        64,601,214
----------------------------------------------------------------------------------------------------------------
Annualized..................................................................         7,676,349         7,573,233
----------------------------------------------------------------------------------------------------------------
Note: Totals may not sum due to independent rounding.

Benefits

    The primary benefit of this final rule is to provide seafarers and
covered individuals timely access between a vessel and a MTSA-regulated
facility gate. Other benefits of this final rule include enhancing the
safety, health, and welfare of seafarers, which in turn improves the
overall quality of life for a seafarer. Lastly, the provisions of this
rule align with international conventions and will reduce regulatory
uncertainty. Table 7 presents a summary of the benefits of this final
rule.

             Table 7--Summary of Benefits of the Final Rule
------------------------------------------------------------------------
           Implications                    Description of benefits
------------------------------------------------------------------------
Seafarers' Access.................  Provides seafarers and covered
                                     individuals timely access between a
                                     vessel and a MTSA-regulated-
                                     facility gate.
                                    Enhances the safety, health, and
                                     welfare of seafarers, and the
                                     overall quality of life by allowing
                                     seafarers access to fundamental
                                     human services.
International Conventions.........  Conforms to the intent of the ISPS
                                     Code and IMO's FAL Convention.
Regulatory Uncertainty............  Reduces regulatory uncertainty by
                                     harmonizing the Coast Guard's
                                     regulations with Sec. 811 of Public
                                     Law 111-281.
------------------------------------------------------------------------

    The primary benefit of this final rule is to provide seafarers and
covered individuals with access between the vessel and the facility
gate, thereby enhancing their quality of life. Although the Coast Guard
does not collect data on the number of seafarers denied access to MTSA-
regulated facilities, the SCI's Center for Seafarers' Rights issued a
report in 2016 and found through a survey that 29 U.S. ports denied
access through a terminal to about 18.4 percent of seafarers or about
200 (SCI mentioned about 81.6 percent did not have valid visas)
seafarers who possibly had valid visas (as we explain in the supporting
regulatory analysis, SCI presents in its report shore leave for
mariners without valid visas and other reasons are given in its survey
for the denial of shore leave; nevertheless, it is reasonable to assume
that the remaining percentage of denials in the report contains some
number of mariners with valid visas who were denied shore leave).
    SCI recently issued reports in 2017 and 2018; the information in
these reports is similar with the 2016 report with 22 and 23 ports
surveyed, respectively. However, these reports, as with the 2015 and
2016 reports, did not specify which facilities were MTSA-regulated or
not, so we assumed the reports included facilities other than the MTSA-
regulated facilities to which the final rule applies (the difference
is, with the 2016 report, we were able to identify, at the time of this
writing, which facilities were MTSA-regulated through correspondence
with SCI in 2016).
    As stated above, the 2016 report cites other reasons for access
denial, such as CBP restrictions and vessel operations, which account
for about 4 percent of denials; again, this also includes facilities
that are not MTSA-regulated. This is important because access denials
to seafarers without valid visas would not be counted as part of the
noncompliance rate and are not part of the affected population. Only
mariners with valid visas who were denied port access to MTSA-regulated
facilities are the affected population of this final rule. Non MTSA-
regulated facilities who denied port access to seafarers are not part
of the applicable population of this final rule. Table ES-4 of the
Final Regulatory Analysis and for this final rule lists the website
where a copy of the 2016 SCI report may be viewed. Combined in one
document, the Final Regulatory Analysis and the Final Regulatory
Flexibility Analysis are available in the docket for review.
    Generally, transiting through a MTSA-regulated facility is the only
way for seafarers to access shore side businesses and amenities, and to
engage in activities such as doctor visits (which includes obtaining
prescriptions for medications), business visits, and family member and
friend visits, among other things such as enjoying basic leisure time,
that go beyond the confines of a vessel. This, in turn, will enhance
seafarers' overall quality of life by allowing access to fundamental
human services instead of being bound to a vessel while moored at a
MTSA-regulated facility. This final rule provides seafarers and covered
individuals access through MTSA-regulated facilities, and enhances the
safety, health, and welfare of seafarers. This final rule also mandates
that the system of access provide access for representatives of
seafarers' welfare and labor organizations. Individuals and
organizations, who generally can only access vessels moored at a MTSA-
regulated facilities by transiting through the facility, will be able
to provide services for seafarers on board a vessel. For example, this
includes labor organizations, port workers organizations, and port
engineers or superintendents. This also will enhance

the welfare and overall quality of life for a seafarer, who otherwise
would not have access to shore side facilities while a vessel is moored
at an MTSA-regulated facility.
    Another benefit of this final rule is that it will conform to
international conventions, which in turn benefits seafarers. The
provisions of this final rule will align with the intent of the
International Ship and Port Facility Security Code (ISPS), an amendment
to the International Convention on the Safety of Life at Sea (SOLAS)
(1974, 1988), Chapter XI-2 (Special Measures to Enhance Maritime
Security), as entered into force under that chapter. An IMO resolution
adopted the ISPS Code in December 2002 and another resolution included
amendments to Chapter XI of SOLAS and added a new chapter, which is
Chapter XI-2. IMO added amendments in 2016, which became effective
January 1, 2018, to the Convention on Facilitation of International
Maritime Traffic, 1965 as amended (FAL), which added a new provision to
strengthen shore leave for seafarers, in Section 3 of the Annex, part
G.
    We believe this is a benefit to seafarers because if the U.S. does
not adhere to these international conventions and denies shore leave to
these individuals, other countries may engage in an act of reciprocity
and deny shore leave to U.S. seafarers abroad. The preamble to ISPS
(paragraph 11), ratified in December 2002, states: ``Recognizing that
the Convention on the Facilitation of Maritime Traffic, 1965, as
amended, provides that foreign crew members shall be allowed ashore by
the public authorities while the ship on which they arrive is in port,
provided that the formalities on arrival of the ship have been
fulfilled and the public authorities have no reason to refuse
permission to come ashore for reasons of public health, public safety
or public order, Contracting Governments when approving ship and port
FSPs should pay due cognizance to the fact that ship's personnel live
and work on the vessel and need shore leave and access to shore based
seafarer welfare facilities, including medical care.''
    This rule will also reduce regulatory uncertainty by harmonizing
regulations with Sec. 811 of Public Law 111-281. The benefit to
seafarers is that they will be knowledgeable of the regulations as they
relate to international conventions thereby reducing confusion and
uncertainty among the population.

Alternatives

    Below, we summarize our chosen compliance option and four discussed
alternatives. Refer to Chapter 5 of the standalone RA, available in the
docket where indicated under the ADDRESSES portion of this preamble,
for more cost and descriptive information on the alternatives analyzed.
     Preferred Alternative
    The preferred alternative is to amend Coast Guard regulations to
require that MTSA-regulated facilities implement a system of seafarers'
access and amend their FSPs to document this system. This alternative
was chosen for this final rule because it provides regulatory
flexibility and the least costly options that would comply with the
intent of the statute.
     Other Alternatives Considered
    Alternative 1--No change to regulations. Instead of amending the
current regulations, COTPs would deny approval of FSPs that do not
adequately address shore leave procedures. While this approach may
address some deficiencies at some facilities, we reject this
alternative because it would not provide clear and consistent
regulatory standards for facilities to implement and COTPs to enforce.
Additionally, the current regulation in 33 CFR 105.200(b)(9) does not
explicitly require facility owners and operators to provide free and
timely access to seafarers. Alternative 1 does not meet the mandate set
in the CGAA, nor would it address the existing access issues. The
benefit of Alternative 1 is that there would be zero incremental cost.
    Alternative 2--Require a section of the DoS between the facility
and the vessel to include the facility's seafarers' access procedures.
We reject this alternative due to the heavy burden it would place on
industry. We do not support this alternative because it would not
specifically target noncompliant facilities, but, instead, would
require many facilities and vessels that would not need a DoS to have
one, increasing the collection of information burden. The benefits of
this alternative are the same as the preferred alternative--the
facility would be required to work out a free and timely access plan
with each arriving vessel and include this plan in the vessel's DoS.
    Alternative 3--Require facilities to implement specific and
prescriptive procedures for seafarers' access and to include these
procedures in their FSPs. This alternative would require facilities to
implement a prescribed space, infrastructure, or other specific
resource as a system of seafarers' access. We reject this alternative
because it would impose a stricter than necessary operational change on
many facilities. For example, this alternative could mandate that all
facilities provide 24-hour shuttle service to seafarers. This would
increase the total cost burden to industry, and many facilities do not
require shuttle service for timely gate access. The benefits of this
alternative are the same as the preferred alternative.
    Alternative 4--Publish guidance to industry clarifying that 33 CFR
105.200(b)(9) affirmatively requires facility owners/operators to
provide shore leave and visitor access. We do not support this
approach. Current regulations in 33 CFR 105.200(b)(9) do not require
facility owners and operators to provide free and timely access to
seafarers. Some facilities deny seafarers access altogether or make
shore access impractical based on misinterpretations of our existing
regulations (i.e., they contend that, since 33 CFR 105.200(b)(9) only
requires coordination of shore leave if there is actual shore leave to
coordinate, if access to shore is denied altogether, there is no shore
leave to coordinate). Further, public comments indicate that, while
some facilities grant seafarers access to and from vessels, they make
it impractical by placing extreme limitations on escort availability or
charging exorbitant fees. Section 811 of the CGAA makes access
mandatory, necessitating an update to our regulations to avoid
regulatory uncertainty.

B. Small Entities

    Under the Regulatory Flexibility Act, 5 U.S.C. 601-612, we have
considered whether this rule would have a significant economic impact
on a substantial number of small entities. The term ``small entities''
comprises small businesses, not-for-profit organizations that are
independently owned and operated and are not dominant in their fields,
and governmental jurisdictions with populations of less than 50,000.
Based on our analysis, we have no information or evidence to determine,
which, or how many MTSA-regulated facilities will need to implement a
system of access. Our estimated costs to small entities vary greatly
depending upon whether a facility will only need to modify its FSP or
whether it will have to modify its operations. We detail this analysis
below:
    A Final Regulatory Flexibility Analysis (FRFA) discussing the
impact of this final rule on small entities is available in the docket
where indicated under the ADDRESSES portion of the preamble. A summary
of the FRFA follows.
    (1) A statement of the need for, and objectives of, the rule:

    Agencies take regulatory action to correct for market failure. This
final rule will ensure that MTSA-regulated facilities do not deny
access or make it impractical for seafarers to obtain shore access. The
rationale given by some facilities for denying such access is based on
a misinterpretation of existing Coast Guard regulations; namely, that
33 CFR 105.200(b)(9) only requires coordination of shore leave if there
is actual shore leave to coordinate, and, if access to shore is denied
altogether, there is no shore leave to coordinate. Some facilities
provide shore access, but make it impractical for seafarers and other
individuals by placing extreme limitations on escort availability or
charging exorbitant fees. Furthermore, possible costs to implement a
system of access should not be borne by those who need access, thereby
providing a disincentive for the facilities to provide such access.
    (2) A statement of the significant issues raised by the public
comments in response to the initial regulatory flexibility analysis, a
statement of the assessment of the agency of such issues, and a
statement of any changes made in the final rule as a result of such
comments:
    We received five public comments regarding the estimated per-
company cost of implementing this rule. The commenters argued that the
$1,121 cost was too low. The Coast Guard addressed this comment in Part
IV of this preamble.
    (3) The response of the agency to any comments filed by the Chief
Counsel for Advocacy of SBA in response to the proposed rule, and a
detailed statement of any change made to the proposed rule in the final
rule as a result of the comments:
    The Coast Guard did not receive any comments from the SBA Office of
Advocacy regarding the impact that this rule would have on small
entities.
    (4) A description and estimate of the number of small entities to
which the rule will apply or an explanation of why no such estimate is
available:
    This rule would affect primarily MTSA-regulated facilities, which
would need to provide seafarers' access if they do not currently
provide this service to seafarers. Based on MISLE data, we estimate
that there are 1,347 owners or operators of 2,469 facilities. Of these
1,347 entities, we estimate that 69 percent of them are small
businesses, as determined by the size standards (or threshold) of the
SBA.\8\ We determined this percentage by researching and compiling the
employee size and revenue data for a random sample of 300 entities, of
which 145 (included in this number are 8 governmental jurisdictions
that we found to be small based on the RFA's definition) were found to
be below the threshold for small entities, and 63 were assumed to be
below the threshold due to lack of available information. In total,
there are 208 (145 + 63) small entities for the purposes of this
analysis).\9\ To estimate the sizes of these entities, we used the
revenue or employee size of these entities from referenceusagov.com and
www.Manta.com for businesses and the most current population
information from the U.S. Census Bureau's website for government
jurisdictions. Based on the information from this analysis, we found
that--
---------------------------------------------------------------------------

    \8\ As indicated by either their revenue or personnel data for
businesses.
    \9\ The sample size of 300 entities provides a confidence level
at 95 percent and a confidence interval of 5.
---------------------------------------------------------------------------

     There are an estimated 1,347 entities that would be
affected by the final rule;
     The sample size consists of 300 entities;
     There were 10 government entities above the threshold for
being small, and 8 below the threshold, we found revenue information on
all 8 governmental jurisdictions by reviewing their respective annual
reports online and U.S. Census Bureau data for one of them;
     There were no nonprofit entities found in the data;
     There were 92 businesses considered above the threshold
for being small, and 145 below the threshold; and
     Size information was not found for the remaining 63
entities, so they were considered small.
    The SBA provides business size standards for all sectors, defined
as the North American Industry Classification System (NAICS). We use
these codes to assess the effect that this final rule will have on
these sectors. Table 8 provides a list of the most prevalent NAICS
codes and their description and size standards.

             Table 8--Breakdown of Industries by NAICS Codes
------------------------------------------------------------------------
                                           SBA size         SBA size
     NAICS              Industry           threshold      standard type
------------------------------------------------------------------------
324110.........  Petroleum Refineries.           1,500  Employees.
488320.........  Marine Cargo Handling           $38.5  Revenue in
                                                         millions.
221122.........  Electric Power                  1,000  Employees.
                  Distribution.
424720.........  Petroleum and                     200  Employees.
                  Petroleum Products
                  Merchant Wholesalers
                  (except Bulk
                  Stations and
                  Terminals).
325998.........  All Other                         500  Employees.
                  Miscellaneous
                  Chemical Product and
                  Preparation
                  Manufacturing.
483212.........  Inland Water                      500  Employees.
                  Passenger
                  Transportation.
336611.........  Ship Building and               1,250  Employees.
                  Repairing.
423990.........  Other Miscellaneous               100  Employees.
                  Durable Goods
                  Merchant Wholesalers.
424690.........  Other Chemical and                150  Employees.
                  Allied Products
                  Merchant Wholesalers.
561510.........  Travel Agencies......           $20.5  Revenue in
                                                         millions.
713930.........  Marinas..............            $7.5  Revenue in
                                                         millions.
------------------------------------------------------------------------

Revenue Impact on Entities

    To estimate how this final rule would affect entities that fall
under the SBA and U.S. Census Bureau for small entities, we calculated
the per-facility cost based on each method of access. Facilities that
only need to modify their FSP would only be affected by the one-time
FSP cost. Those that need to modify operations would be affected by the
FSP cost and the weighted average of the transportation costs. Table 9
provides the range in per-facility costs.

                              Table 9--Per Facility Cost by Mode of Transportation
----------------------------------------------------------------------------------------------------------------
                                                                                Annual          Annual
                                                                                recurring       recurring
                        Cost description                           Initial cost   cost, years 2-   cost, year 6
                                                                                5, 7-10          \10\
----------------------------------------------------------------------------------------------------------------
Cost Per Facility (FSP Documentation)...........................            $412              $0              $0
----------------------------------------------------------------------------------------------------------------
                                          Cost Per Facility, Operations
----------------------------------------------------------------------------------------------------------------
Method 1: Regularly scheduled escort............................          99,143          67,583          68,138
Method 2: On-call escort........................................          76,615          45,055          45,611
Method 3: Taxi..................................................           5,897           2,848           2,848
Method 4: Seafarers' welfare organizations with supplemental               2,948           1,424           1,424
 taxis..........................................................
Method 5: Visual/equipment monitoring...........................             191             191             191
----------------------------------------------------------------------------------------------------------------

    For facilities that will only need to document a system of access
in the FSP, we estimate that this final rule will not have a
significant impact on a substantial number of small entities; i.e., the
cost to modify the FSP, $412, is less than 1 percent of annual revenue
for all sampled small entities that were reviewed. For facilities that
have to modify operations and document the new system of access in
their FSPs, this final rule may have a significant impact on a
substantial number of small entities. Because we have no way to
determine which facilities (and, therefore, which entities) will need
to implement a system of access, we performed two analyses.
---------------------------------------------------------------------------

    \10\ Year 6 has a slightly higher average cost because those
complying with Method 1 and Method 2 will need to renew TWIC cards
for security guards.
---------------------------------------------------------------------------

    We have revenue information for 145 of the estimated 208 small
entities including 8 small governmental jurisdictions (these revenue
data include taxes and other revenues as reported in the jurisdictions'
annual reports, which is publicly available information, in addition to
data from the U.S. Census Bureau for one of them).
    Three NAICS codes represent these 8 governmental jurisdictions with
two governmental jurisdictions having a NAICS code of 921110 (Executive
Offices), three of them having a NAICS code of 921120 (Legislative
Bodies), and the remaining three having a NAICS code of 926120
(Regulation and Administration of Transportation Programs).
    Using this revenue information, we determined that the cost of both
modifying operations and documenting the new system of access in the
FSP is: (1) Less than 1 percent of annual revenue for 66 percent of
affected facilities; (2) between 1 and 3 percent of annual revenue for
14 percent of facilities; (3) between 3 and 5 percent of annual revenue
for 5 percent of facilities; and (4) greater than 5 percent of annual
revenue for 15 percent of facilities. Seven of the 8 governmental
jurisdictions fell into the less than 1 percent impact category and the
eighth jurisdiction fell into the greater than 5 percent impact
category. Table 10 displays this data, as well as the impacts of annual
recurring costs.

                   Table 10--Estimated Revenue Impact of the Final Rule, Weighted Average Cost
----------------------------------------------------------------------------------------------------------------
                                                                                Annual
                                                                      Initial        recurring        Annual
                         Revenue impact                           implementation  costs, years 2-    recurring
                                                                       cost           5, 7-10      costs, year 6
----------------------------------------------------------------------------------------------------------------
                                                  FSP Only Cost
----------------------------------------------------------------------------------------------------------------
Cost to Modify FSP..............................................            $412              $0              $0
----------------------------------------------------------------------------------------------------------------
0% < Impact <= 1%...............................................            100%  ..............  ..............
                                         FSP Plus Access Implementation
----------------------------------------------------------------------------------------------------------------
Per facility cost (weighted average)............................         $27,200         $16,558         $16,724
0% < Impact <= 1%...............................................             66%             73%              73
1% < Impact <= 3%...............................................             14%             11%              11
3% < Impact <= 5%...............................................              5%              6%               6
5% < Impact <= 10%..............................................             10%              7%               7
Above 10%.......................................................              5%              3%               3
----------------------------------------------------------------------------------------------------------------

    Additionally, we calculated the estimated revenue impacts of this
final rule based on the average annual cost per compliance method over
the 10-year period of analysis. Table 11 displays the results of this
analysis. The average annual costs of Methods 3, 4, and 5 are less than
1 percent of annual revenue for 100 percent of the identified small
businesses. Method 1 has the highest average annual cost per facility.
This cost is less than 1 percent of annual revenue for about 50 percent
of the identified small entities, and above 10 percent of annual
revenue for 18 percent of the identified small entities.

                Table 11--Estimated Revenue Impact of Final Rule, Average Annual Cost per Method
----------------------------------------------------------------------------------------------------------------
        Compliance method            Method 1        Method 2        Method 3        Method 4        Method 5
----------------------------------------------------------------------------------------------------------------
Weighted Average Annual Cost....         $70,795         $48,267          $3,153          $1,576            $191
----------------------------------------------------------------------------------------------------------------
                                          Cost Per Facility, Operations
----------------------------------------------------------------------------------------------------------------
0% < Impact <= 1%...............             50%             54%            100%            100%            100%
1% < Impact <= 3%...............             19%             17%              0%              0%               0
3% < Impact <= 5%...............              9%              6%              0%              0%               0
5% < Impact <= 10%..............              5%              7%              0%              0%               0
Above 10%.......................             18%             13%              0%              0%               0
----------------------------------------------------------------------------------------------------------------

    (5) A description of the projected reporting, recordkeeping, and
other compliance requirements of the rule, including an estimate of the
classes of small entities which will be subject to the requirement and
the type of professional skills necessary for preparation of the report
or record:
    This final rule adds information to an existing collection of
information. We anticipate that all MTSA-regulated facilities will need
to add additional security information to their FSPs, for a total cost
of $412 per facility. These FSPs will be updated by the Facility
Security Officer (FSO). The FSO will need to know the security protocol
regarding each facility and describe the information required in this
rule in order to comply with the recordkeeping requirement of this
rule. We anticipate that this recordkeeping requirement will not have a
significant impact on any small entities, i.e., the $412 recordkeeping
cost is less than 1 percent of revenue for all sampled small entities.
    (6) A description of the steps the agency has taken to minimize the
significant economic impact on small entities consistent with the
stated objectives of applicable statues, including a statement of the
factual, policy, and legal reasons for selecting the alternative
adopted in the final rule and why each one of the other significant
alternatives to the rule considered by the agency which affect the
impact on small entities was rejected:
    We considered other alternatives in this final rule. Those
alternatives include no regulatory changes, requiring changes to the
DoS rather than to the FSP, and outlining more prescriptive measures.
We rejected each alternative, because making no regulatory changes
would not fulfill our mandate, changing the DoS would not specifically
target noncompliant facilities, and making more prescriptive measures
would not provide as much regulatory flexibility.
    In addition, public comments suggested that requiring escorting for
a list of individuals would pose security problems and become too
costly to implement. This rule narrows the list of acceptable
individuals to seafarers, pilots, and welfare organizations, reducing
the scope of individuals who will be allowed to be escorted through the
facility to those people and groups specifically required by the Act.
    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.

C. Assistance for Small Entities

    Under section 213(a) of the Small Business Regulatory Enforcement
Fairness Act of 1996, Public Law 104-121, we offer to assist small
entities in understanding this rule so that they can 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, the affected
facilities and vessels are required to update their FSPs to include
provisions for seafarers' access. This requirement would amend an
existing collection of information by increasing the number of
instances requiring information to be collected under OMB control
number 1625-0077.
    Title: Security Plans for Ports, Vessels, Facilities, and Outer
Continental Shelf Facilities and other Security-Related Requirements.
    OMB Control Number: 1625-0077.
    Summary of the Collection of Information: This final rule modifies
an existing collection of information for facility owners and operators
of MTSA-regulated facilities. MTSA-regulated facilities are required to
include a description of a system for seafarer access in their FSPs.
This rule requires a one-time change in previously approved OMB
Collection 1625-0077.
    Final Use of Information: The Coast Guard will use this information
to determine whether a facility is providing adequate seafarer access
and complying with the provisions of the final rule.
    Description of the Respondents: The respondents are owners of MTSA-
regulated facilities regulated by the Coast Guard under 33 CFR chapter
I, subchapter H.
    Number of Respondents: We estimate that 2,469 MTSA-regulated
facilities with FSPs will be required to modify their existing FSP.
    Frequency of Response: There will be a one-time response for all
2,469 respondents. The FSP would need to be updated within 10 months of
the publication of the final rule.
    Burden of Response: The burden resulting from this final rule is 6
hours per respondent in the initial year.
    Estimate of Total Annual Burden: The estimated implementation
period burden for facilities is 6 hours per FSP amendment. Since there
are 2,469 MTSA facilities that are required to

modify their existing FSP, with the inclusion of administrative time of
about 420 hours, the total burden is 15,234 hours [(2,469 facilities x
6 hours) + (2,469 facilities x 0.17 administrative hours)]. The current
burden listed in this collection of information is 1,108,043. The new
burden, as a result of this final rulemaking, is 1,123,277 (1,108,043 +
15,234).
    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 OMB for its
review of the collection of information. You are not required to
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 final 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 Executive Order
13132 and have determined that it is consistent with the fundamental
federalism principles and preemption requirements described in
Executive Order 13132. Our analysis follows.
    This rule would update existing regulations in 33 CFR part 105 by
requiring each owner or operator of a facility regulated by the Coast
Guard to implement a system that provides seafarers and other covered
individuals with access through the facility at no cost to the
seafarer. Additionally, this rule requires facilities to amend facility
security plans in order to ensure compliance.
    It is well-settled that States may not regulate in categories
reserved for regulation by the Coast Guard. (See the decision of the
Supreme Court in the consolidated cases of United States v. Locke and
Intertanko v. Locke, 529 U.S. 89, 120 S.Ct. 1135 (2000)). The Coast
Guard believes the federalism principles articulated in Locke apply to
the regulations promulgated under the authority of the Maritime
Transportation Security Act. States and local governments are
foreclosed from regulating within the fields covered by regulations
found in 33 CFR parts 101, 103, 104, and 106. However, with regard to
regulations found in 33 CFR part 105, State maritime facility
regulations are not preempted so long as these State laws or
regulations are more stringent than what is required by 33 CFR part 105
and no actual conflict or frustration of an overriding need for
national uniformity exists. Therefore, the rule is consistent with the
principles of federalism and preemption requirements in Executive Order
13132.

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. Although 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 would
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 would 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.

L. Technical Standards

    The National Technology Transfer and Advancement Act, codified as a
note to 15 U.S.C. 272, 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 use technical standards. Therefore, we did not
consider the use of voluntary consensus standards.

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 concluded that this
action is one of a category of actions that do not individually or
cumulatively have a significant effect on the human environment. A
final Record of Environmental Consideration (REC) supporting this
determination is available in the docket where indicated in the
ADDRESSES section of this preamble. This final rule involves providing
access for seafarers to maritime facilities. Therefore, this rule is
categorically excluded under paragraph L54 and paragraph L56 of
Appendix A, Table 1 of DHS Instruction Manual 023-01-001-01, Rev. 01.
Paragraph L54 pertains to regulations which are editorial or
procedural. Paragraph L56 pertains to regulations concerning the
training, qualifying, licensing, and disciplining of maritime
personnel.

List of Subjects in 33 CFR Part 105

    Maritime security, Reporting and recordkeeping requirements,
Security measures.

    For the reasons discussed in the preamble, the Coast Guard amends
33 CFR part 105 as follows:

33 CFR--Navigation and Navigable Waters

PART 105--MARITIME SECURITY: FACILITIES

0
1. The authority citation for part 105 is revised to read as follows:

    Authority:  33 U.S.C. 1226, 1231; 46 U.S.C. 70103; 50 U.S.C.
191; Sec. 811, Pub. L. 111-281, 124 Stat. 2905; 33 CFR 1.05-1, 6.04-
11, 6.14, 6.16, and 6.19; Department of Homeland Security Delegation
No. 0170.1.

Sec.  105.200   [Amended]

0
2. Amend Sec.  105.200 as follows:
0
a. In paragraph (b)(1), remove the words ``security organizational
structure'' and add in their place the words ``organizational structure
of the security personnel'' and remove the words ``within that
structure'';
0
b. In paragraph (b)(4), remove the text ``an FSP'' and add in its place
the text ``a Facility Security Plan (FSP)'';
0
c. In paragraph (b)(6) introductory text, remove the acronym ``TWIC''
and add in its place the words ``Transportation Worker Identification
Credential (TWIC)'';
0
d. In paragraph (b)(6)(i), after the words ``FSP are permitted to'' add
the words ``serve as an'';
0
e. In paragraph (b)(6)(ii), remove the word ``should'' and add in its
place the words ``in the event that'';
0
f. In paragraph (b)(6)(iii), remove the word ``what'', and add in its
place the word ``which'' and after the words ``are secure areas and''
add the words ``which are'';
0
g. In paragraph (b)(9), remove the text ``coordination of'' and add in
its place the text ``implementation of a system, in accordance with
Sec.  105.237, coordinating'' and remove the text ``(including
representatives of seafarers' welfare and labor organizations)'' and
add in its place the text ``, as described in Sec.  105.237(b)(3)'';
and
0
h. In paragraph (b)(14), remove the text ``TSA'' and add in its place
the text ``Transportation Security Administration (TSA)''.

0
3. Add Sec.  105.237 to read as follows:

Sec.  105.237   System for seafarers' access.

    (a) Access required. Each facility owner or operator must implement
a system by June 1, 2020 for providing access through the facility that
enables individuals to transit to and from a vessel moored at the
facility and the facility gate in accordance with the requirements in
this section. The system must provide timely access as described in
paragraph (c) of this section and incorporate the access methods
described in paragraph (d) of this section at no cost to the
individuals covered. The system must comply with the Transportation
Worker Identification Credential (TWIC) provisions in this part.
    (b) Individuals covered. The individuals to whom the facility owner
or operator must provide the access described in this section include--
    (1) Seafarers assigned to a vessel at that facility;
    (2) Pilots; and
    (3) Representatives of seafarers' welfare and labor organizations.
    (c) Timely access. The facility owner or operator must provide the
access described in this section without unreasonable delay, subject to
review by the Captain of the Port (COTP). The facility owner or
operator must consider the following when establishing timely access
without unreasonable delay:
    (1) Length of time the vessel is in port.
    (2) Distance of egress/ingress between the vessel and facility
gate.
    (3) The vessel watch schedules.
    (4) The facility's safety and security procedures as required by
law.
    (5) Any other factors specific to the vessel or facility that could
affect access to and from the vessel.
    (d) Access methods. The facility owner or operator must ensure that
the access described in this section is provided through one or more of
the following methods:
    (1) Regularly scheduled escort between the vessel and the facility
gate that conforms to the vessel's watch schedule as agreed upon
between the vessel and facility.
    (2) An on-call escort between the vessel and the facility gate.
    (3) Arrangements with taxi services or other transportation
services, ensuring that any costs for providing the access described in
this section, above the service's standard fees charged to any
customer, are not charged to the individual to whom such access is
provided. If a facility provides arrangements with taxi services or
other transportation services as the only method for providing the
access described in this section, the facility is responsible to pay
any fees for transit within the facility.
    (4) Arrangements with seafarers' welfare organizations to
facilitate the access described in this section.
    (5) Monitored pedestrian access routes between the vessel and
facility gate.
    (6) A method, other than those in paragraphs (d)(1) through (5) of
this section, approved by the COTP.
    (7) If an access method relies on a third party, a back-up access
method that will be used if the third party is unable to or does not
provide the required access in any instance. An owner or operator must
ensure that the access required in paragraph (a) of this section is