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Coast Guard, DHS

Pt. 107

(ii) The cognizant District Commander, upon a determination that an
amendment is needed to maintain the
OCS facility’s security. The cognizant
District Commander will give the OCS
facility owner or operator written notice and request that the OCS facility
owner or operator propose amendments
addressing any matters specified in the
notice. The OCS facility owner or operator will have at least 60 days to submit its proposed amendments. Until
amendments are approved, the OCS facility owner or operator shall ensure
temporary security measures are implemented to the satisfaction of the
cognizant District Commander.
(2) Proposed amendments must be
sent to the cognizant District Commander. If initiated by the OCS facility
owner or operator, the proposed
amendment must be submitted at least
30 days before the amendment is to
take effect unless the cognizant District Commander allows a shorter period. The cognizant District Commander will approve or disapprove the
proposed amendment in accordance
with § 106.410 of this subpart.
(3) Nothing in this section should be
construed as limiting the OCS facility
owner or operator from the timely implementation of such additional security measures not enumerated in the
approved FSP as necessary to address
exigent security situations. In such
cases, the owner or operator must notify the cognizant District Commander
by the most rapid means practicable as
to the nature of the additional measures, the circumstances that prompted
these additional measures, and the period of time these additional measures
are expected to be in place.
(4) If the owner or operator has
changed, the Facility Security Officer
(FSO) must amend the Facility Security Plan (FSP) to include the name
and contact information of the new
OCS facility owner(s) or operator(s)
and submit the affected portion of the
FSP for review and approval in accordance with § 106.410 of this subpart.
(b) Audits. (1) The FSO must ensure
an audit of the FSP is performed annually, beginning no later than one year
from the initial date of approval and
attach a letter to the FSP certifying

that the FSP meets the applicable requirements of this part.
(2) If there is a change in ownership
or operations of the OCS facility, or if
there have been modifications to the
OCS facility, the FSP must be audited
including but not limited to physical
structure, emergency response procedures, security measures, or operations.
(3) Auditing the FSP as a result of
modifications to the OCS facility may
be limited to those sections of the FSP
affected by the OCS facility modifications.
(4) Unless impracticable due to the
size and nature of the company or the
OCS facility, personnel conducting internal audits of the security measures
specified in the FSP or evaluating its
implementation must:
(i) Have knowledge of methods of
conducting audits and inspections, and
control and monitoring techniques;
(ii) Not have regularly assigned security duties; and
(iii) Be independent of any security
measures being audited.
(5) If the results of an audit require
an amendment of either the Facility
Security Assessment (FSA) or FSP, the
FSO must submit, in accordance with
§ 106.410 of this subpart, the amendments to the cognizant District Commander for review and approval no
later than 30 days after completion of
the audit and a letter certifying that
the amended FSP meets the applicable
requirements of this part.
[USCG–2003–14759, 68 FR 39345, July 1, 2003, as
amended at 68 FR 60559, Oct. 22, 2003]

PART 107—NATIONAL VESSEL AND
FACILITY CONTROL MEASURES
AND LIMITED ACCESS AREAS
Subpart A [Reserved]
Subpart B—Unauthorized Entry Into Cuban
Territorial Waters
Sec.
107.200
107.205
107.210
107.215
107.220
107.225
107.230
107.240

Definitions.
Purpose and delegation.
Applicability.
Regulations.
Permits.
Appeals.
Enforcement.
Continuation.

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§ 107.200

33 CFR Ch. I (7–1–10 Edition)

AUTHORITY: 50 U.S.C. 191, 192, 194, 195; 14
U.S.C. 141; Presidential Proclamation 6867, 61
FR 8843, 3 CFR, 1996 Comp., p. 8; Presidential
Proclamation 7757, 69 FR 9515 (March 1, 2004);
Secretary of Homeland Security Order 2004–
001; Department of Homeland Security Delegation No. 0170.1; and 33 CFR 1.05–1.
SOURCE: Order 2004–001, 69 FR 41372, July 8,
2004, unless otherwise noted.

Subpart A [Reserved]

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Subpart B—Unauthorized Entry Into
Cuban Territorial Waters
§ 107.200 Definitions.
Unless otherwise specified, as used in
this subpart:
Auxiliary vessel includes every description of watercraft or other artificial contrivance used, or capable of
being used, as a means of transportation on water attached to, or embarked in, another vessel to which this
subpart applies.
Cuban territorial waters means the territorial sea and internal waters of Cuba
determined in accordance with international law.
Owner, agent, master, officer, or person
in charge means the persons or entities
that maintain operational control over
any vessel subject to the requirements
of this subpart.
U.S. territorial waters has the same
meaning as provided in 50 U.S.C. 195.
Vessel includes every description of
watercraft or other artificial contrivance used, or capable of being used, as
a means of transportation on water, including auxiliary vessels.
Vessel of the United States means—
(1) A vessel documented under chapter 121 of title 46 or a vessel numbered
as provided in chapter 123 of that title;
(2) A vessel owned in whole or part
by—
(i) The United States or a territory,
commonwealth, or possession of the
United States;
(ii) A State or political subdivision
thereof;
(iii) a citizen or national of the
United States; or
(iv) A corporation, partnership, association, trust, joint venture, limited liability company, limited liability partnership, or any other legal entity, created and authorized to own vessels

under the laws of the United States or
any State, the District of Columbia, or
any territory, commonwealth, or possession of the United States; unless the
vessel has been granted the nationality
of a foreign nation in accordance with
article 5 of the 1958 Convention on the
High Seas and a claim of nationality or
registry for the vessel is made by the
master or individual in charge at the
time of the enforcement action by an
officer or employee of the United
States authorized to enforce applicable
provisions of United States law;
(3) A vessel that was once documented under the laws of the United
States and, in violation of the laws of
the United States, was either sold to a
person not a citizen of the United
States or placed under foreign registry
or a foreign flag, whether or not the
vessel has been granted the nationality
of a foreign nation;
(4) A vessel without nationality as
defined in 46 U.S.C. Appendix 1903(c)(2)–
(3); or
(5) A vessel assimilated to a vessel
without nationality, in accordance
with paragraph (2) of article 6 of the
1958 Convention on the High Seas.
§ 107.205 Purpose and delegation.
The purpose of this subpart is to implement Presidential Proclamation
7757, and Secretary of Homeland Security Order 2004–001. All powers and authorities granted to officers of the
Coast Guard by this subpart may be
delegated to other officers and agents
of the Coast Guard unless otherwise
prohibited by law.
§ 107.210 Applicability.
(a) This subpart applies to:
(1) Vessels of the United States less
than 100 meters (328 feet) in length (and
all associated auxiliary vessels) and
the owners, agents, masters, officers,
persons in charge, and members of the
crew of such vessels, that depart U.S.
territorial waters and thereafter enter
Cuban territorial waters, regardless of
whether such entry is made after an intervening entry into, passage through,
or departure from any other foreign
territory or territorial waters;
(2) Vessels of the United States less
than 100 meters (328 feet) in length (and
all associated auxiliary vessels) and

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Coast Guard, DHS

§ 107.220

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the owners, agents, masters, officers,
persons in charge, and members of the
crew of such vessels that are located at
or get underway from a berth, pier,
mooring, or anchorage in U.S. territorial waters, or depart U.S. territorial
waters with the intent to enter Cuban
territorial waters; and
(3) Any person who knowingly fails
to comply with this subpart or order
given under this subpart, or knowingly
obstructs or interferes with the exercise of any power conferred by this subpart.
(b) This subpart does not apply to:
Foreign vessels, as defined by 46 U.S.C.
2101(12), public vessels, as defined by 46
U.S.C. 2101(24) operated for non-commercial purposes, or vessels of the
United States entering Cuban territorial waters under force majeure.
§ 107.215 Regulations.
(a) Each person or vessel to which
this subpart applies may not get underway or depart from U.S. territorial waters without a written permit from the
Commander, Seventh Coast Guard District, or the District Commander’s designee. Permits may be obtained pursuant to the process established in
§ 107.220. The owner, agent, master, or
person in charge of the vessel must
maintain the written permit for the
vessel on board the vessel.
(b) Each person or vessel to which
this subpart applies must obey any oral
or written order issued by a Coast
Guard Area or District Commander, or
their designees, who may issue oral or
written orders to control the anchorage or movement of such vessels and
persons. Designees include Captains of
the Port, and commissioned, warrant
and petty officers of the Coast Guard.
(c) No person or vessel to which this
subpart applies may obstruct or interfere with the exercise of any power
conferred by this subpart.
(d) Coast Guard commissioned, warrant and petty officers may go or remain on board a vessel subject to this
subpart, may place guards on the subject vessel, may remove all persons not
specifically authorized by the Coast
Guard to go or remain on board the
subject vessel, and may take full or
partial possession or control of any
such vessel or part thereof, or person

on board. Such actions to be taken are
in the discretion of the Coast Guard
Area or District Commander, or their
designees, as deemed necessary to ensure compliance with this subpart and
any order given pursuant thereto.
(e) Where there is a reasonable,
articulable basis to believe a vessel to
which this subpart applies intends to
enter Cuban territorial waters, any
Coast Guard commissioned, warrant, or
petty officer may require the owners,
agents, masters, officers, or persons in
charge, or any member of the crew of
any such vessel to provide verbal assurance that the vessel will not enter
Cuban territorial waters as a condition
for a vessel to get underway from a
berth, pier, mooring, or anchorage in
U.S. territorial waters, or to depart
from U.S. territorial waters. A Coast
Guard commissioned, warrant, or petty
officer may require the owners, agents,
masters, officers, or persons in charge
of the vessel to identify all persons on
board the vessel and provide verbal assurances that all persons on board have
received actual notice of these regulations. The failure of an owner, agent,
master, officer, or person in charge, or
any member of the crew of any vessel
(including all auxiliary vessels) to
which this subpart applies to provide
requested verbal assurances shall not
be used as the sole basis for seizing the
vessel for forfeiture under this subpart.
(f) The provisions of this subpart are
in addition to any powers conferred by
law upon Coast Guard commissioned,
warrant, or petty officers, and not in
limitation of any powers conferred by
law or regulation upon such officers, or
any other officers of the United States.
§ 107.220

Permits.

(a) Applications for a permit may be
obtained by writing or calling the Chief
of Operations at Commander, Seventh
Coast Guard District (o), 909 SE First
Avenue, Miami, FL 33131, telephone
(305) 415–6920, or by such other means
as the District Commander may make
available to the public. The completed
application may be returned via regular mail or facsimile to the Chief of
Operations at Commander, Seventh
Coast Guard District (o), 909 SE First
Avenue, Miami, FL 33131, facsimile

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§ 107.225

33 CFR Ch. I (7–1–10 Edition)

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(305) 415–6925, or by other means prescribed by the District Commander for
the convenience of the applicant.
(b) All applications must be written
in English and legible.
(c) The information and documentation in this paragraph must be provided with the application in order for
it to be complete and considered by the
Coast Guard:
(1) The name, address, and telephone
number of the applicant;
(2) A copy of the valid vessel registration;
(3) A copy of a valid and applicable license issued to the applicant by the
U.S. Department of Commerce, Bureau
of Industry and Security, pursuant to
the Export Administration Regulations, 15 CFR chapter VII, subchapter
C, parts 730–774 for the export of the
vessel to Cuba; and
(4) A copy of a valid and applicable
specific license issued by the U.S. Department of the Treasury, Office of
Foreign Assets Control (OFAC), pursuant to the Cuban Assets Control Regulations, 31 CFR part 515, authorizing
the applicant’s travel-related transactions in Cuba. Applicants who do not
require such an OFAC specific license
shall make a written certification to
that effect identifying which OFAC
general license applies or explaining
why no OFAC license is required.
(d) Such applications must provide
the
documentation
required
by
§ 107.220(c) for each person to which this
subpart applies on board the particular
vessel.
(e) Upon receiving an application for
a permit, the Seventh Coast Guard District Commander (o) has ten (10) calendar days from the receipt of the application to decide whether the application is complete and, if so, whether a
permit will be issued or denied. Applicants will be notified in writing of the
decision to issue or deny a permit. Incomplete applications will be returned
to the applicant, along with the reasons why such application was deemed
incomplete.
§ 107.225 Appeals.
(a) Upon written notification by the
Coast Guard that an application has
been denied, the applicant may request
the Seventh Coast Guard District Com-

mander to reconsider. The request to
reconsider must be in writing, must be
made within five (5) business days from
the date of receipt of the initial denial,
and must contain complete supporting
documentation and evidence which the
applicant wishes to have considered.
Requests for reconsideration must be
mailed to Commander, Seventh Coast
Guard District (d), 909 SE First Avenue, Miami, FL 33131.
(b) Upon receipt of the request to reconsider, the Seventh Coast Guard District Commander may direct a representative to gather and submit documentation or other evidence, which, in
the judgment of the Seventh District
Commander, would be necessary or
helpful to a resolution of the request. If
gathered and submitted, a copy of this
documentation and evidence shall be
made available to the applicant. The
applicant shall be afforded five (5) business days from the date of receipt of
documentation and evidence gathered
by the Seventh Coast Guard District
Commander’s representative to submit
rebuttal materials. On or before the fifteenth (15th) calendar day following
submission of all materials, the Seventh Coast Guard District Commander
shall issue a ruling, in writing, on the
request to reconsider. The ruling may
reverse the initial denial, or, if the denial is upheld, must contain the specific basis for denial of the application
upon reconsideration.
(c) The Seventh Coast Guard District
Commander’s denial of a request for reconsideration taken under paragraph
(b) of this section constitutes final
agency action.
§ 107.230 Enforcement.
(a) Unauthorized departure or entry, or
both. (1) Vessels and persons to whom
this subpart applies, as described in
§ 107.210(a)(1), that do not comply with
§ 107.215(a), or any order issued pursuant to this subpart may be subject to a
civil penalty of not more than $25,000
for each day of violation.
(2) Vessels and persons to whom
§ 107.230(a)(1) applies shall be held to a
standard of strict liability for any
entry into Cuban territorial waters
without a permit or for failure to
maintain the permit for the vessel on
board the vessel as required under this

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Coast Guard, DHS

§ 107.240

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subpart, except that strict liability
will not be imposed if the failure to obtain or carry a permit results primarily from an act of war, force
majeure, or the negligence of the
United States.
(b) Knowing failure to comply. Any
person to whom this subpart applies as
described in §§ 107.210(a)(2) or (a)(3) who
knowingly fails to comply with this
subpart or order given under this subpart, or knowingly obstructs or interferes with the exercise of any power
conferred by this subpart may be subject to:
(1) Imprisonment for not more than
10 years;
(2) A monetary penalty of not more
than $10,000;
(3) Seizure and forfeiture of the vessel; and
(4) A civil penalty of not more than
$25,000 for each day of violation.

(c) False Statements. Violation of 18
U.S.C. 1001 may result in imprisonment
for not more than five years or a fine,
or both.
(d) Other enforcement. The civil penalties provided for in this subpart are
separate from and in addition to any
enforcement action that any other
agency may seek for violations of the
statutes and regulations administered
by such agencies.
§ 107.240

Continuation.

This subpart will continue to be enforced so long as the national emergency with respect to Cuba, and the
emergency authority relating to the
regulation of the anchorage and movement of vessels declared in Proclamation 6867, and expanded in scope by
Proclamation 7757, continues.

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