Comments on USCG NPRM on Facility Access

Jan 15, 2015

COMMENTS
on Seafarers’ Access to Maritime Facilities
A Proposed Rule by the Coast Guard on 12/29/2014

15 January 2015

The Seamen’s Church Institute of NY & NJ welcomes the proposed regulations to implement section 811 of the Coast Guard Authorization Act of 2010 that 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.”

The proposed regulations contain requirements that most facilities have already adopted voluntarily. However, without a clear and consistent regulatory mandate, terminals could change how they interpret or implement current regulations to the detriment of seafarers and others who need access between vessels and facility gates. The proposed regulations are necessary to provide regulatory certainty ensuring that seafarers and other specified individuals have timely, no cost access through all MTSA regulated facilities.

The number of seafarers who will benefit from the proposed regulations is much higher than the 907 indicated in the cost benefit analysis. The Coast Guard used our shore leave surveys to estimate the number of seafarers who were denied shore leave because of terminal restrictions. Our shore leave surveys compiled data on seafarers’ shore leave restrictions on ships actually visited by port chaplains in various ports around the United States. However, the data does not reflect the number of seafarers detained on vessels in the facilities that port chaplains could not visit because of restrictions imposed by those terminals. For example, one of the terminals mentioned in our 2014 report requires all persons to be escorted through the terminal by their security service at a charge of $400 each way. This expensive fee effectively prohibits chaplains visiting ships in that terminal and seafarers transiting the terminal to go on shore leave. Our shore leave survey, therefore, does not record restrictions by this terminal and other terminals that restricted chaplains’ access.

For the purposes of the proposed regulations, we believe all seafarers on all ships calling at all MTSA regulated facilities, not just those denied shore leave by the terminals, will benefit from the proposed rule, and the cost benefit analysis should reflect those numbers. Similarly, seafarers on vessels in MTSA regulated facilities will benefit from services provided by representatives of seafarers’ welfare organizations whose visits will be facilitated by the proposed regulations.

It is difficult to determine the number of seafarers on ships calling at all MTSA regulated facilities each year, but that number is much higher than 907. The Government Accounting Office June 2011 report, GAO-11-195, contains data that can help estimate the number of seafarers on ships calling at MTSA regulated facilities. In the report, Customs and Border Protection (CBP) estimated that almost 5 million alien seafarers arrived at U.S. ports in 2007. CBP further estimated that in 2009, over 85% of the seafarer arrivals were aliens and that 80% of the arrivals were on passenger vessels and 20% on cargo vessels.

Most of the 2,498 MTSA regulated facilities handle cargo vessels. Using the GAO report data, approximately 1.18 million seafarers on cargo vessels were inspected by CBP at U.S ports of entry each year. The CBP statistics relate to the number of entries, not the number of seafarers. It is not unusual for seafarers to leave and return to the U.S. more than once a year. In those cases, seafarers will be counted multiple times in the CBP annual statistics. After making their initial entry in the U.S. where they receive an immigration inspection, many of these cargo vessels also call at other ports and facilities while in U.S. waters. Therefore, the number of seafarer visits to regulated facilities will be higher than the CBP numbers of initial entries. Furthermore, the CBP data does not include seafarers on vessels in U.S. domestic trade that call at MTSA regulated facilities.

Although it is very difficult to ascertain how many individual seafarers will benefit from the proposed regulations, conservatively, well over a million seafarer visits to MTSA regulated cargo facilities will benefit from the proposed regulations each year.

The background and discussion of the proposed rule provide useful information and guidance on what MTSA regulated facilities should include in their security plans. Because this guidance is not included in the proposed regulations, we recommend that a NVIC or other USCG directive be promulgated to provide guidance to facilities and COTPs.

The NPRM requested comments on seven questions. The questions and our comments to them follow:

  1. We request comments on whether 1 year is an appropriate timeframe to implement the system that would be required under this proposed rule.

As proposed in 33 CFR 105.237 (a), one year should be the maximum timeframe allowed for a facility to implement its system, but earlier implementation should be encouraged. Improvements in seafarers’ and other authorized individuals’ access should be implemented while approval of the FSP is pending.

  1. In formulating the proposed 33 CFR 105.237(b) “Individuals covered”, we sought to include the individuals to whom facility owners or operators should be required to provide timely, no-cost access through their facilities based on the language of section 811 and the existing seafarers' access requirements in 33 CFR 105.200(b)(9). We request comments on whether this proposal 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.

Representatives of seafarers’ welfare organizations are explicitly specified by section 811 of the 2010 Coast Guard Authorization Act as individuals required to be provided timely, no-cost access through facilities, and they are appropriately included in the 33 CFR 105.237 (b) list. Although section 105.237 (b)(4) provides flexibility within the Declaration of Security or other arrangement with the vessel to designate other authorized individuals, it would be helpful to specify “seafarers’ guests” among those authorized individuals. The term “seafarers’ guests” should be used instead of “seafarers’ family members” to avoid excluding individuals who might not fit within a terminal’s definition of “family”.

  1. As stated above in this preamble, instead of proposing a single regulatory definition of “timely access” that would apply to all facilities, we propose factors for facility owners and operators to consider (and document in the FSP) so that they provide “timely access” without unreasonable delay. We request comments on whether this approach provides the necessary flexibility for a diverse regulated population, while also providing COTP oversight to ensure that “timely access” is reasonable in each case.

We understand that some flexibility may be needed to accommodate the various conditions at 2,498 MTSA regulated facilities. The proposed regulations contain several factors that COTPs and facilities must consider when determining the timeliness of access. The factors, however, relate only to facilities and vessels in the facilities. Facility operators should also consider the necessity for representatives of seafarers’ welfare organizations to have timely access to vessels. Representatives of seafarers’ welfare organizations may need to provide vital welfare services to any number of vessels in that facility and others in the port. A delay in gaining access, which in some exceptional circumstances might be reasonable for seafarers’ access, could be unreasonable for representatives of seafarers’ welfare organizations attempting to provide necessary services to seafarers, especially to those seafarers who are unable to go ashore. For example, representatives of seafarers’ welfare organizations often provide vital communication capabilities enabling seafarers unable to go ashore the opportunity to communicate with their families and loved ones. The timely access considerations should also include factors related to representatives of seafarers’ welfare organizations need to provide vital services to seafarers aboard ships.

Section 811 of the 2010 Coast Guard Authorization Act specifies the individuals who must be provided access through a facility, including representatives of seafarers’ welfare organizations. Some facilities allow representatives of seafarers’ welfare organizations access only after their being placed on their gate list by a ship’s agent. Some ships’ agents require seafarers’ welfare organizations to request authority to visit individual ships 24 to 48 hours in advance. In some cases, a seafarers’ welfare organization will not have sufficient advance notice of a vessel’s arrival and departure to comply with the agent’s notice requirements to allow a visit. Facility security plans that require agents to act as “gate-keepers” for visitors specified in Section 811 cause unreasonable delays to their “timely access” to facilities. Facilities should not require individuals authorized by Section 811 to be authorized access by ships’ agents. Facilities should have a procedure for providing timely access to specified individuals without inserting ship’s agents in the process. Facilities should also consider granting blanket access to known authorized individuals who routinely visit ships in their terminals.

Similarly, some terminals impose other cumbersome security procedures for representatives of seafarer welfare organizations that unreasonably delay their access to ships in the terminals. Facility security plans should provide for expedited access to individuals specified in Section 811.

Poorly trained or uninformed facility security personnel in some terminals have denied chaplains' access or prohibited them from escorting seafarers through the terminals because of their unfamiliarity with established rules or procedures. Facilities should ensure that their security personnel and gate guards receive proper training about the seafarers’ and other individuals’ access contained in the facility security plans.

The transit routes between gates and vessels in some terminals are much longer and more time consuming than other apparent routes. The facility security plans should review transit routes to ensure that they provide timely access.

  1. We request comments on whether the proposed 33 CFR 105.237(d) provides an appropriately inclusive list of methods for providing seafarers' access, or whether there any other methods that should be on the list.

The proposed regulations place the onus on facilities to ensure that timely access is provided to seafarers (and others) at no cost to the individual. The intent of the statute and proposed regulations could be thwarted by shipowners that require seafarers to reimburse them for the escorting or transporting fees charged by terminals. The regulations should contain enforcement mechanisms that would deter shipowners from collecting terminal fees from seafarers. Terminals could be prohibited from itemizing fees for escorting or transporting seafarers in any terminal charges or fees to ships. Terminals may also wish to include the costs of maintaining its transit system in their dockage fees. Such fees should be charged to ships whether or not they use the service, thus discouraging them from denying shore leave or recouping the charges from their crews.

Facility Security Plans for those facilities that rely on arrangements with seafarers’ welfare organizations to facilitate access should include information on how the facility ensures that the seafarer welfare organizations are adequately funded to fulfill the facility’s access obligations. Seafarer welfare organizations rely on a number of methods to support their activities, including charitable donations, fund-raising events, and levies on ships. Facility security plans should contain information on the assistance they provide to the seafarer welfare organizations that they use to fulfill their access obligations.

Facilities that rely on taxi or private escort services should have procedures in place to monitor compliance with FSP requirements. For example, if a terminal relies on a taxi or private escort service, the terminal must monitor the service to make sure that it does not charge seafarers or other authorized individuals for transiting the terminal.

  1. We request comments on our estimate, discussed below under Section VI. Regulatory Analyses, that there is a 10.3 percent non-compliance rate of MTSA-regulated facilities with respect to providing seafarers' access.

In Section VI, the USCG estimated that 10.3% of the facilities would need to update their existing systems of access to conform to the standards of the rulemaking. The estimate was based on our shore leave surveys. Our surveys compiled chaplains’ reports of terminals whose procedures caused obstacles to seafarers’ shore leave and chaplains’ access to vessels. Approximately 10.3% of the 141 terminals surveyed effectively impeded seafarers’ or port chaplains’ transit through the terminals by either imposing significant obstacles or by failing to accommodate transit. This figure does not, however, indicate the percentage of terminals that will need to update their existing systems of access to conform to the standards of the rulemaking. For example, the proposed rules will correctly require terminals to provide a “back-up” method of access if the terminal relies on a third party, such as a welfare agency or taxi service. Our survey did not collect data on those terminals that were adequately providing access to seafarers through third parties (at the time of the survey) but did not have a “back-up” procedure in place. Even though such terminals did not restrict seafarers’ access, they will need to update their procedures to provide for back-ups. Although we do not have data on the number of terminals that will need to update their existing systems of access to conform to the proposed rules, we believe that the percentage will be higher than the 10.3% of the terminals in the survey that restricted access.

  1. We request comments on our cost estimates, discussed below under Section VI. Regulatory Analyses, for FSP amendments and changes to facility operations to implement the proposed rule's provisions.

In Table 3 – Per Facility Administrative and Operational Costs, the NPRM estimates 26 Seafarers’ Welfare Organizations would provide access services for terminals with an initial cost of $3,208 and an annual cost of $1,203. There are more than fifty seafarers’ welfare organizations that serve seafarers in U.S. ports. Typically, they are voluntary non-profit organizations that are funded by charitable contributions. Some, but not all of them, transport seafarers between their vessels and seafarer centers and other locations. SCI’s budget for shipvisiting and transporting seafarers includes all its expenses for visiting ships and transporting seafarers. The budget is not broken down to only transporting seafarers and chaplains within MTSA regulated facilities.

  1. We request comments on the regulatory alternatives to implementing section 811 discussed below under Section VI. Regulatory Analyses.

We support the alternative proposed. Facilities need clear and consistent national regulatory standards for implementing Section 811 of the Coast Guard Authorization Act of 2010, and COTPs need clear authority to enforce them. The proposed rule mandates reasonable requirements on facilities that will adequately implement Section 811, and it provides flexibility for facilities to collaborate with seafarers’ welfare agencies to assist them. The regulations are required. We recommend that the Coast Guard also promulgate a NVIC or other directive to provide amplifying guidance to facilities and COTPs on implementing the proposed regulations.