The Office of Port and Facility Compliance (FAC) added FAQ 13 and FAQ 14 to the Seafarers’ Access to Maritime Facilities: Frequently Asked Questions, which were originally published June 13, 2019. The latest additions are listed below, and the full set of FAQs immediately follow for the convenience of our readers.
Q13. Does the Seafarers’ Access to Maritime Facilities regulation apply to all seafarers or just foreign seafarers on foreign flagged or SOLAS applicable vessels?
Seafarers shore access rule (33 CFR 105.237) applies to all seafarers, including U.S. mariners on domestic voyages, who must be allowed access through MTSA-regulated facilities for the purpose of shore leave or crew changes, free of charge to the seafarer. The facility security plan (FSP) needs to address access for mariners that are not already included or covered under the plan such as facility or company employees. Foreign seafarers’ that do not have proper paperwork/credentials may be denied access to shore leave by Customs and Border Protection (CBP).
Q14. Do facilities or terminals, based on their Facility Security Plan (FSP) or Alternative Security Program (ASP), that have already addressed access or utilize Public Access Areas (33 CFR 105.106) need a separate “system” to address seafarers’ shore access?
Security Plans need to address a system for mariner access but if a plan already has a no-cost means for mariner access such as Public Access Areas (33 CFR 105.106); or the facility receives only its own mariners or employees covered by their plan such as small passenger vessel crews; a separate system need not be re-documented in the plan and plan amendments do not need to be re-submitted to the cognizant COTP.
A defined public access area within a facility is open to all persons and provides a public pathway through the facility from public thoroughfares to the vessel. U.S. mariners with or without a TWIC may transit the facility through the public access area without escort. This process does not apply to cruise ship terminals or any facility interfacing with foreign flagged vessels.
As a reminder, important dates associated with the regulation:
- The facility owner and operator has 14 months after publication of the final rule to implement a system, which is June 1, 2020.
- Seafarers’ Access to Maritime Facilities regulation went into effect May 1, 2019;
- The system must be documented in the Facility Security Plan (FSP) on or before February 3, 2020.
Q1. Does the Seafarer’s Access to Maritime Facilities regulation provide representatives of seafarers welfare and labor organizations access to every facility within the area? Does the regulation alter the facilities’ ability to deny access to a vessel at the facility, or the facility itself?
The purpose of the Seafarers’ Access to Maritime Facilities regulation is to require facilities to provide persons such as “representatives of seafarers’ welfare and labor organizations” a system to board and depart a vessel at the facility. The regulation is not intended to provide unlimited access to all areas on the facility. Additionally, the regulation does not alter the facility owners/operators’ ability to deny access to the facility, if representatives of seafarers’ welfare or labor organizations, or others, do not have a legitimate purpose for accessing the facility or vessel at the facility.
Q2. If a vessel Master denies access to their vessel, what would be the best way for a facility to document this incident so not to be accused of denying access from the facility gate to the vessel?
The Seafarers’ Access to Maritime Facilities regulation does not require documentation of access denial by the facility or vessel. However, vessel master(s) and facilities are encouraged to document this situation in accordance with their company policy, if applicable.
Q3. Does the Seafarers’ Access to Maritime Facilities regulation permit anyone from an organization that categorizes themselves as a seafarers’ welfare organization to gain access to a facility or vessel at any time?
Individuals covered under this rule must have a legitimate purpose for accessing the vessel at the facility. The regulation does not alter the ability to deny access to a facility or vessel, it only requires the regulated facility to provide a system for seafarers assigned to a vessel at that facility, pilots, and representatives of seafarers’ welfare and labor organizations to board and depart the vessel through the facility in a timely manner and at no cost to the individual.
Q4. What qualifies as a seafarer welfare organization?
The Seafarers’ Access to Maritime Facilities regulation does not define what qualifies as a seafarers’ welfare organization. The Office of Port and Facility Compliance and local Captains of the Port work hand-in-hand with a network of recognized international and domestic groups that are seafarers’ welfare and assistance organizations. The local Captains of the Port and their representatives are familiar with the seafarers’ welfare and assistance organizations within their port(s) and are in the best position to assist.
Q5. Will the Office of Port and Facility Compliance (CG-FAC) provide guidance in regards to the expectations for “timely access” without unreasonable delay?
The Office of Port and Facility Compliance does not anticipate providing additional guidance at this time. The facility owner or operator must consider the conditions listed at 33 CFR 105.237(c) (1) – (5) when establishing timely access, which is subject to review by the Captain of the Port. The COTP and his or her representatives are in a better position to make “timely access” determinations since they are familiar with individual facility operations and port conditions.
Q6. Do barge fleeting facilities, including ones with no shore side access, need to amend their facility security plans based on the Seafarers’ Access to Maritime Facilities regulation and implement 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 Seafarers’ Access to Maritime Facilities regulation is applicable to those facilities provided in 33 CFR 105.105, which includes barge fleeting facilities that receive barges carrying, in bulk, cargoes regulated by 46 CFR Chapter I, Subchapters D or O, or Certain Dangerous Cargoes. As such, these barge fleeting facilities must amend their facility security plan to implement, as appropriate, a system for seafarer access between vessels moored at the facility and the facility front gate on or before February 3, 2020.
Q7. Can barge fleeting facilities apply for a waiver in accordance with 33 CFR 105.130?
Yes, under 33 CFR 105.130, which is applicable to regulated facilities, including barge fleeting facilities, any facility owner or operator may apply for a waiver of any requirement of 33 CFR Part 105 if the owner or operator considers it unnecessary in light of the nature or operating conditions of the facility.
Q8. Is 33 CFR §105.237(d) (5), “Monitoring pedestrian access routes between the vessel and facility gate” only an option for those portions of such pedestrian routes that are not designated “restricted areas”?
The Seafarers’ Access to Maritime Facilities regulation concerns no-cost access through facilities for seamen assigned to a vessel at that facility, pilots, and representatives of seafarers’ welfare and labor organizations, not unescorted access. 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. The facility has flexibility to decide how to comply with its security requirements and the no-cost access requirements of this rule. The local Captain of the Port and his or her representatives will examine the methods of access proposed by the facility to determine if the methods meet the requirements of the Seafarers’ Access to Maritime Facilities regulation.
Q9. Does an offshore mooring facility that provides launch services ashore for their own vessels but charges visiting vessels for the same launch service have to amend their facility security plan based on the Seafarers’ Access to Maritime Facilities regulation?
Each facility subject to the requirements in 33 CFR Part 105, must ensure the facility operates in compliance with the requirements of subsections 105.200 and 105.327, which requires amending the facility security plan to document a system of access.
Section 811 of the Coast Guard Authorization Act of 2010 does not specify who should pay for no-cost access for seafarers and the Coast Guard does not mandate specific infrastructure or method to be used for such access. Additionally, the Coast Guard declined to specifically prohibit charges to the vessel, and instead let parties decide the allocation of costs between facility and vessel.
Q10. Does the Seafarers’ Access to Maritime Facilities regulation apply to offshore mooring facilities? If so, if an operator declines to pay for launch services for their vessel, would the terminal be in violation?
If 33 CFR Part 105 applies to the offshore mooring facility based on 33 CFR 105.105, then the facility security plan must address a system for no-cost seafarers’ access on or before February 3, 2020 and the system must be implemented by June 1, 2020.
Ultimately, it is the facility’s responsibility to provide the no-cost service. However, because the Coast Guard declined to specifically prohibit charges to the vessel, the parties may decide the allocation of costs between the facility and vessel.
Q11. While the actual compliance date of June 1, 2020, is clear, is there more than one interpretation regarding the date a facility may submit its facility security plan amendment?
The Federal Register states as follows:
On or before February 3, 2020, 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 § 105.410 or § 105.415.
The Coast Guard provided facilities effective notice of the new requirements on the publishing date of the final rule, which was April 1, 2019. Additionally, by making the effective date of the rule May 1, 2019, facilities have over 60 days to comply with the new requirements to submit an amendment by February 3, 2020. Each Captain of the Port has the ability to manage submissions and provide direct notice to facilities in their area as needed to prevent the COTP from being overwhelmed with a mass of submission of facility security plans to review.
Q12. With the publication of the Seafarers’ Access to Maritime Facilities regulation it appears that some facilities are providing the same access as before but have simply changed the billing process. In some cases they are billing the vessels for a vague charge, or, are providing access but requiring it be done by water with a for-hire ferry operator.
Coast Guard regulations already required each facility to have an approved facility security plan, and ensure coordination of shore leave and crew change out for vessel personnel, as well as access for visitors to the vessel. The Seafarers’ Access regulation now requires the facility security plan include the system for providing this access to the facility at no-cost for certain individuals. Section 811 of the Coast Guard Authorization Act of 2010 does not specify who should pay for no-cost access for seafarers and the Coast Guard does not mandate specific infrastructure or method to be used for such access. Additionally, the Coast Guard declined to specifically prohibit charges to the vessel, and instead 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.
Any questions on Seafarers’ Access to Maritime Facilities regulations and changes to a facility security plan to meet these requirements should first be addressed to the local U.S. Coast Guard Captain of the Port. A complete listing of Coast Guard contacts can be found on Coast Guard HOMEPORT at https://homeport.uscg.mil/ under Port Directory.
This blog is not a replacement or substitute for the formal posting of regulations and updates or existing processes for receiving formal feedback of the same. Links provided on this blog will direct the reader to official source documents, such as the Federal Register, Homeport and the Code of Federal Regulations. These documents remain the official source for regulatory information published by the Coast Guard.
Categories: Ports and Facilities