Posted: December 30, 2014
U.S. Coast Guard publishes proposed rulemaking on Seafarers' Access to Maritime Facilities, requests comments
On December 29, the U.S. Coast Guard published its proposed regulations in the Federal Register to require each owner or operator of 2,498 maritime facilities regulated by the Coast Guard to implement a system that provides seafarers and other individuals with access between vessels moored at the facility and the facility gate in a timely manner and at no cost to the seafarer or other individual. This proposed regulation seeks to ensure that no facility owner or operator denies or makes it impractical for seafarers or other individuals to transit through the facility, and would require them to document their access procedures in their Facility Security Plans (FSPs). It implements an Act of Congress requiring terminals to provide access to seafarers in a timely manner at no cost to the seafarer.
Denial of access through maritime facilities has been a long-standing problem for seafarers and other individuals needing access to ships and the USCG rulemaking is a major step forward in addressing the problem. The proposed rule places the requirement to provide access directly on the terminal facility owner or operator. Accordingly, facility owners and operators would not be permitted to rely solely on third parties, such as taxi services or seafarers' welfare organizations, to provide access between the vessel and facility gate. If they rely on one or more third parties as their primary method of providing the required access they would also be required to include a back-up method of providing timely, no-cost access provisions in their FSPs.
The USCG is requesting written comments from the public on the new regulations in addition to holding a public meeting in Washington, DC to obtain input on the proposed regulations on January 23, 2015. It is expected that there will be substantial push back from terminals owners or operators to avoid responsibility for providing access. It is important that seafarers and others affected by lack of timely access provide comments to the USCG docket supporting the proposed regulations.
American Maritime Officers will be submitting comments for the record; however, individual comments on the proposed rulemaking from affected mariners will be extremely important. The deadline for submitting comments is February 27, 2015, and guidelines for submitting comments are included at the end of this article.
The text of the proposed regulation follows:
§ 105.237 System for seafarers' access
(a) Access Required. Each facility owner or operator must implement a system by (365 days after date of publication of final rule) 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) 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 Declaration of Security (DoS) or other arrangement between the vessel and facility.
(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, ensuring that any costs for providing the access described in this section, above the taxi'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 as the only method for providing the access described in this section, the facility is responsible to pay the taxi 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 (d)(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 actually provided in all instances.
(e) No cost to individuals. The facility owner or operator must provide the access described in this section at no cost to the individual to whom such access is provided.
(f) Described in the Facility Security Plan (FSP). On or before (insert date 10 months after publication of the final rule), the facility owner or operator must document the facility's system for providing the access described in this section in the approved FSP in accordance with 33 CFR 105.410 or 33 CFR 105.415. The description of the facility's system must include -
(1) Location of transit area(s) used for providing the access described in this section;
(2) Duties and number of facility personnel assigned to each duty associated with providing the access described in this section;
(3) Methods of escorting and/or monitoring individuals transiting through the facility;
(4) Agreements or arrangements between the facility and private parties, nonprofit organizations, or other parties, to facilitate the access described in this section; and
(5) Maximum length of time an individual would wait for the access described in this section, based on the provided access method(s).
The U.S. Coast Guard will consider all comments and material received during the comment period and may change the proposed rule based on the comments received. So, it is important that seafarers provide input from their perspective on the need for timely access.
The U.S. Coast Guard specifically requests comments on the following:
1. Whether one (1) year is an appropriate timeframe to implement the system that would be required under the proposed rule.
2. Whether the proposed rule provides an appropriately inclusive list of individuals who should be allowed to access a vessel, or whether the list is too broad or too narrow.
3. Instead of proposing a single regulatory definition of "timely access" that would apply to all facilities, the proposal lists factors for facility owners and operators to consider (and document in the FSP) so that they provide "timely access" without unreasonable delay. Comments are requested on whether this approach is reasonable and provides the flexibility needed to cover the diverse circumstances of different facilities and ships with COTP oversight to ensure that "timely access" is reasonable in each case.
4. Whether the proposed "Access Methods" (33 CFR 105.237(d) above) provide an appropriately inclusive list of methods for providing seafarers' access, or whether there are any other methods that should be on the list.
5. The U.S. Coast Guard estimates that there is a 10.3 percent non-compliance rate of MTSA-regulated facilities with respect to providing seafarers access. Comments are requested as to whether this is a reasonable estimate based on the experience of seafarers and other individuals.
The complete text of the Federal Register Notice containing background information and discussion of the issues can be found on the AMO Currents website or at the Federal eRulemaking Portal under docket number USCG-2013-1087.
Comments must be submitted on or before February 27, 2015 or reach the docket management facility by that date.
ADDRESSES: You may submit comments identified by docket number USCG-2013-1087 using any one of the following methods:
(1) Federal eRulemaking Portal: www.regulations.gov
(2) Fax: 202-493-2251
(3) Mail: Docket Management Facility (M-30), U.S. Department of Transportation, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue SE., Washington, DC 20590-0001
If you have comments on the accuracy of the background data discussed in the notice you must also send comments to the Office of Information and Regulatory Affairs (OIRA), Office of Management and Budget (include the docket number and "Attention: Desk Officer for Coast Guard, DHS" in the subject line of the e-mail) or fax at 202-395-6566.