Dec 11 2014

DHS proposes ID and search rules for passengers on ocean-going ships

In a Notice of Proposed Rulemaking (NPRM) published yesterday in the Federal Register, the Coast Guard has proposed that all so-called “cruise ship” ports be required to carry out airport-style searches (“screening) and check identity credentials of all embarking and disembarking passengers and any other visitors entering the port.

Entities responsible for the operations of large passenger vessels and ports are already required to submit “security” plans to the Coast Guard. Because those current plans are filed in secret, it’s not entirely clear how the  proposed requirements differ from current practices.

According to the NPRM, the Coast Guard’s guidelines for complying with the current regulations, in addition to various other supporting documents, were included in the rulemaking docket. We’ve confirmed with the docket office, however, that the Coast Guard never provided any of the supporting documents for posting on or over-the-counter availability at the docket office. Presumably, a corrected notice with a new due date for comments will be published in the Federal Register once these documents are made publicly available.

From the summary in the NPRM, it appears that the main proposed changes are new requirements for port operators to:

(a) Screen all persons, baggage, and personal effects for dangerous substances and devices in accordance with the requirements in subpart E of this part;

(b) Check the identification of all persons seeking to enter the facility in accordance with §§ 101.514, 101.515, and 105.255 of this subchapter….

The difference in “screening” practices contemplated by the proposed rules seems to be that they would be more standardized than at present, more like those at airports, and would be required to enforce a Coast Guard “prohibited items” list.  Although the list of items prohibited from aircraft is designated as “Sensitive Security Information”, the Coast Guard has included a tentative list of items proposed to be prohibited from cruise ship cabin baggage in the proposed rules. At the same time, the proposed rules would provide that:

The Prohibited Items List does not contain all possible items that may be prohibited from being brought on a cruise ship by passengers. The Coast Guard and the cruise ship terminal reserve the right to confiscate (and destroy) any articles that in our discretion are considered dangerous or pose a risk to the safety and security of the ship, or our guests, and no compensation will be provided.

Cruise ship passengers are already required to “present personal identification in order to gian entry to a vessel [or port] facility,”  but it isn’t clear how or by whom this is supposed to be enforced. The propsoed rules would create a new obligation for port operators to check passengers’ ID credentials.

As with the definition of “prohibited items”, the definition of acceptable ID credentials is defined for air travel only in secret (SSI) TSA Security Directives and/or Standard Operating Procedures, but is defined publicly in Federal regulations for cruise ships.

The NPRM would leave the definition of acceptable ID unchanged. In addition to government-issued ID credentials, the regulations specifically provide for the acceptance of ID issued under thre authority of, “The individual’s employer, union, or trade association”, as long as it is laminated, includes a current photo, and baears the name of the issuing authority.

By its plain language, this regulation allows any self-employed person to issue their own self-signed personal ID credentials for access to port facilities.

That’s not inappropriate, since many self-employed contractors need to enter ports for business reasons.

In practice, most cruise lines enforce (with or without legal authority) ID requirements more stringent than those in Federal regulations. But we’d be interested in hearing from anyone who has presented self-signed ID credentials, in accordance with these regulations, for purposes of entry to a port or to board a cruise ship.  Some cruise lines alloow guests onboard while ships are in port, such as friends seeing off passengers. So you might be able to experiment without being a passenger yourself.

The definition of “cruise ship” includes “any vessel over 100 gross register tons, carrying more than 12 passengers for hire which makes voyages lasting more than 24 hours, of which any part is on the high seas.”  So a more accurate description of the category would be “large ocean-going passenger ships”.

There’s a limited exception for “ferries… that transit international waters for only short periods of time on frequent schedules.” It’s not clear if that exception would apply to the Alaska Marine Highway System. But any ship carrying more than 12 passengers for hire between Hawaii and the US mainland would be at sea for more than a “short” period of time and would be covered by these regulations, even if it weren’t called a “cruise”.

Cargo ships that also carry passengers, and ports where they dock, aren’t explicitly excluded from the definition of “cruise ship” in the regulations.  But most cargo ships limit the number of paying passengers to 12, even if they have room to accommodate more, to avoid being subject to these and other regulations.

The Coast Guard answers to two masters as both a military component of the Department of Defense (using the Internet domain, “”) and a civilian component of the Department of Homeland Security.  The proposed cruise ship regulations were issued by the Coast Guard in its DHS capacity.

Since its creation, the DHS has maintained a consistent hypocrisy about ID requirements and other travel controls.

When ID requirements and other travel restrictions have been challenged, the DHS has argued that they only apply to air travel, and that there is no right to travel by any partiouclar mode. If you aren’t alloowed to fly, you could take a taxi from California to Washington,  or a ship to Hawaii.  In one no-fly case, they even tried to introduce evidence about transoceanic cruise ships. But at the same time, the DHS has been explicit everywhere except in court about its desire to apply the same controls to all modes of travel.  We’ve seen that with trains; now we see it with passenger ships.

As usual when Federal agencies issue regulations restricting travel, the Coast Guard NPRM ignores the impact of the proposed rules on travelers, and considers only the impacts on businesses. And the required analysis of impacts on small businesses ignores the largest category of impacted small businesses: self-employed individuals who are impacted as travelers.

Public comments on the proposed rules are due by March 10, 2015 (although that date could, and should, be extended once documents purportedly supporting the proposal are properly docketed).

Leave a Reply

Your email address will not be published. Required fields are marked *