[Federal Register Volume 85, Number 55 (Friday, March 20, 2020)]
[Notices]
[Pages 16108-16115]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-05823]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

[Docket No. USCG-2016-1084]
RIN 1625-ZA39


Navigation and Vessel Inspection Circular (NVIC) 01-20; 
Guidelines for Addressing Cyber Risks at Maritime Transportation 
Security Act (MTSA) Regulated Facilities

AGENCY: Coast Guard, DHS.

ACTION: Notice of availability.

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SUMMARY: The Coast Guard announces the availability of Navigation and 
Vessel Inspection Circular (NVIC) 01-20, titled Guidelines for 
Addressing Cyber Risks at Maritime Transportation Security Act (MTSA) 
Regulated Facilities. This NVIC clarifies the existing MTSA 
requirements related to computer system and network vulnerabilities of 
MTSA-regulated facilities. It also provides owners and operators of the 
facilities with guidance on how to analyze these vulnerabilities in 
their required Facility Security Assessment (FSA) and address them in 
the Facility Security Plan (FSP).

FOR FURTHER INFORMATION CONTACT: If you have questions on this notice, 
call or email, CDR Brandon Link, U.S. Coast Guard; telephone 202-372-
1107, email Brandon.M.Link@uscg.mil.

SUPPLEMENTARY INFORMATION:

Discussion

    As discussed in the United States Coast Guard Cyber Security 
Strategy, released in June 2015,\1\ and the draft NVIC,\2\ published 
for public comment on July 12, 2017 (82 FR 32189), cyber security is 
one of the most serious economic and national security challenges for 
the maritime industry and our nation. Maritime facility safety and 
security systems, such as security monitoring, fire detection, and 
general alarm installations increasingly rely on computer systems and 
networks. While these computer systems and networks create benefits, 
they are inherently vulnerable and introduce new vulnerabilities.
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    \1\ https://www.uscg.mil/Portals/0/Strategy/Cyber%20Strategy.pdf.
    \2\ The Coast Guard assigns NVICs based on the year and order in 
which they are issued in the final form. The draft version of this 
NVIC was assigned NVIC number 05-17. However, since the final 
version of the NVIC will be issued in the year 2020, we have 
assigned it a new number 01-20.
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    There are many resources, technical standards, and recommended 
practices available to the maritime industry that can help with 
identifying vulnerabilities to facility computer systems and networks 
and subsequently incorporating those vulnerabilities into FSPs. 
However, recent Coast Guard experience suggests the maritime industry 
may not be aware of or utilizing these resources. Therefore, this NVIC 
recommends how MTSA-regulated facilities can address and mitigate cyber 
security risks while ensuring the continued operational capability of 
the nation's Marine Transportation System (MTS).
    The Maritime Transportation Security Act of 2002 (MTSA) (Pub. L. 
107-295, November 25, 2002, as codified in 46 U.S.C. Chapter 701) 
addresses the security of the MTS and authorizes the Coast Guard to 
prescribe regulations. Under the authority of MTSA, the Coast Guard 
promulgated regulations in subchapter H of Title 33 of the Code of 
Federal Regulations (CFR). These

[[Page 16109]]

regulations established general requirements for facility security and 
provided facility owners and operators discretion to determine the 
details of how they will comply with those requirements.
    This NVIC provides recommended practices for MTSA-regulated 
facilities to address computer system and network vulnerabilities, more 
commonly referred to as cyber security vulnerabilities.\3\ Based on 
industry comments, the Coast Guard has revised the NVIC and its 
Enclosures. We revised the NVIC to clarify its advisory nature and 
applicability. The Coast Guard also changed the title of the draft NVIC 
Enclosure (1) from Cyber Security and MTSA: 33 CFR parts 105 and 106 to 
Cyber Security and MTSA. The Coast Guard made this change because the 
revised Enclosure (1) consists of two separate sections: The first 
section advises on the nature and purpose of the MTSA regulations and 
the second section discusses specific provisions of 33 CFR parts 105 
and 106 that may apply to a Facility Security Plan (FSP) if a Facility 
Security Assessment (FSA) identifies any computer system and network 
vulnerabilities. In addition, the revised Enclosure (1) clarifies that 
MTSA regulations in 33 CFR parts 105 and 106 include a facility's 
obligation to assess cyber security vulnerabilities while retaining the 
discretion over the ways to address and mitigate them. We note in the 
Enclosure that MTSA-regulated facilities must comply with MTSA 
regulations, but it is up to each facility to determine how to 
identify, assess, and address the vulnerabilities of their computer 
systems and networks. We added a line about discussing backup means of 
communication, which are required by 33 CFR 105.235(d) and 106.240(c) 
and are part of the information considered when developing the FSA. We 
also corrected two typos on page 1-4. In the paragraph titled Security 
measures for access control, we corrected the citation from ``33 CFR 
105.260'' to ``33 CFR 106.260'' and in the paragraph titled Security 
measures for restricted areas, we corrected the citation from ``33 CFR 
105.265'' to ``33 CFR 106.265''.
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    \3\ The existing regulatory requirement for assessing and 
addressing vulnerabilities to ``computer systems and networks'' is 
written broadly enough to encompass the more common term ``cyber 
security'' and to account for advances in technology. Under current 
regulations, facility owners must regularly update their FSAs and 
FSPs (see, e.g., 33 CFR 105.310, 105.410, and 105.415) to address 
new or previously unidentified security vulnerabilities.
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    The draft NVIC contained an Enclosure (2) titled Cyber Governance 
and Cyber Risk Management Program Implementation Guidance. This 
Enclosure provided recommended practices, including the National 
Institute of Standards and Technology (NIST) Cyber Security Framework 
(CSF) and NIST Special Publication 800-82. For the reasons described 
below, we have removed Enclosure (2) from the NVIC.
    The Coast Guard sought public comments on the draft NVIC's 
necessity, robustness, and its costs. Specifically, we sought comments 
on the feasibility of the implementation of the NVIC's guidance, its 
flexibility and usefulness in addressing the broad scope of 
vulnerabilities and risk facing regulated facilities, and its ability 
to remain valid when technology and industry's use of technology 
changes. In addition, the Coast Guard sought comments on whether this 
guidance aligned with activities that industry has already implemented. 
After the 90-day public comment period closed on October 11, 2017,\4\ 
the Coast Guard reviewed and analyzed the comments contained in 25 
letters received. Below we summarize and respond to the public 
comments.
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    \4\ The Coast Guard extended the initial comment period end date 
from September 11, 2017, to October 11, 2017 (82 FR 42560).
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Comments Received

1. Comments on NVIC's Enclosure (2)

    Many of the comments described concerns with Enclosure (2). 
Enclosure (2) described best practices and expectations for all MTSA 
regulated entities, and cited to the National Institute of Standards 
and Technology's Cyber Security Framework (NIST CSF) to promote 
effective self-governance. Some commenters perceived Enclosure (2) as 
overly detailed and not suitable for application by small owners and 
operators. Other commenters suggested that the Coast Guard simply 
direct all owners and operators to use the NIST framework. Based on 
these comments, we have concluded that Enclosure (2) created more 
confusion than benefit for the owners and operators of MTSA-regulated 
facilities. For example, some commenters mistook the described examples 
and the framework for recommended parts of an FSA. Others expressed an 
expectation for more specific recommendations on various technical 
specifications. Therefore, the Coast Guard has removed Enclosure (2) 
from the NVIC. However, in response to several comments supporting the 
NIST CSF, which was discussed in Enclosure (2), we added a sentence to 
paragraph (2) of the NVIC encouraging the use of the NIST CSF as a 
means to improve a facility's cyber posture above what is outlined in 
the NVIC.

2. Comments on Flexibility and Adaptability

    Many commenters stated cyber security guidance should be flexible 
and should allow each facility to create solutions that fit its 
specific needs and changing risks. The Coast Guard agrees. This NVIC 
does not include a checklist or otherwise prescribe cyber security 
solutions. This NVIC emphasizes that existing regulations require MTSA-
regulated facilities to assess and address vulnerabilities in computer 
systems and networks and provides guidance on how to mitigate those 
cyber security vulnerabilities identified in the facility's FSA.

3. Comments on the Implementation of the NVIC

    A. The draft NVIC stated that once it was finalized, facility 
owners and operators could demonstrate their compliance with MTSA 
regulations by including cyber security risks and a general description 
of cyber security measures in their FSPs.
    In response to that statement, many commenters expressed concerns 
regarding potential delays in re-inspections and re-approvals of new 
FSPs, and economic burdens for ports and facilities (including small 
ports and facilities with a limited number of employees), that might 
have to perform new FSAs and re-write existing FSPs immediately after 
the NVIC's issuance. Similarly, one other commenter suggested that a 
separate cyber section be added to FSAs and FSPs instead of using all 
other sections for cyber information. One of the commenters also 
suggested that smaller facilities with a limited number of employees 
should have more general roles when it comes to cyber security.
    The Coast Guard emphasizes this NVIC applies to MTSA-regulated 
facilities only and does not apply to ports. However, those ports that 
manage MTSA-regulated facilities are required to ensure that the 
facilities comply with MTSA requirements.
    This NVIC does not impose any new burdens or requirements on MTSA-
regulated facilities. As discussed above, current Coast Guard 
regulatory authority in 33 CFR parts 105 and 106 already requires MTSA-
regulated facilities to evaluate their computer system and network 
vulnerabilities in their FSAs and address them in the FSPs. Thus, all 
owners or operators of MTSA-regulated facilities, regardless of size, 
have to comply with MTSA regulations. As the draft NVIC indicated, the 
owners and

[[Page 16110]]

operators could comply with the MTSA regulations by either revising 
current FSPs or attaching a cyber-annex to the FSP. If the owner or 
operator elects to create a cyber-annex, it would be the only part of 
the FSP subject to re-inspection and re-approval. Likewise, if the 
owner or operator chooses to incorporate cyber security vulnerabilities 
into the FSP, then only those new parts would be subject to re-
inspection and re-approval. The MTSA regulations governing FSP 
amendments can be found in 33 CFR 105.415 and 106.415.
    As to the general roles of employees at small MTSA-regulated 
facilities, this NVIC does not prescribe individual roles within a 
facility's organization. It is the facility's responsibility to 
determine the individual roles of its employees and how they can 
address cyber security risks identified by the FSA.
    Based on comments received, we have revised the final text of the 
NVIC and Enclosure (1) to clarify the NVIC's advisory nature and a 
facility's obligations under the MTSA regulations. We also added a 
sentence to Enclosure (1) stating that the Coast Guard would only 
review the newly added cyber-annex or FSP parts related to cyber 
security.
    B. The draft NVIC recommended facility owners and operators 
describe the roles and responsibilities of facility cyber security 
personnel, and provide facility cyber security information to Coast 
Guard personnel conducting FSP reviews or approvals.
    Based on those recommendations, some commenters expressed concerns 
about the new methods of evaluation and approval of their FSAs and 
FSPs; the role and level of cyber security knowledge and training of 
Coast Guard personnel in reviewing FSAs and FSPs; and the level of 
knowledge, required qualifications, and duties of a Facility Security 
Officer (FSO). Some of the commenters also asked the Coast Guard to 
provide training and conduct exercises for inspectors and port 
personnel. In addition, the commenters asked if a facility's IT 
department should become a part of the facility personnel with security 
duties; if the IT data stored offsite would be subject to the MTSA 
requirements; and if an FSA would be expected to extend to the building 
where critical cyber systems are housed.
    This NVIC does not alter the process the Coast Guard uses to 
conduct FSA and FSP evaluations and approvals. This NVIC provides 
guidance to facility owners and operators in complying with current 
statutory and regulatory requirements to assess, document, and address 
computer system and network vulnerabilities. Therefore, facility owners 
and operators whose FSAs and FSPs do not currently address cyber 
security vulnerabilities should revise them in compliance with MTSA 
regulations, which require the FSAs and FSPs to be re-evaluated and re-
approved. Facility owners and operators are encouraged to work with the 
local Captain of the Port to determine a suitable timeframe for MTSA-
regulated facilities to update their FSAs with computer system and 
network security vulnerabilities.
    Some comments suggested that the Coast Guard personnel lacked cyber 
security knowledge and training necessary to assess cyber security 
vulnerabilities. The Coast Guard will assess its needs and may address 
this issue in the future through internal policy or guidance to Coast 
Guard personnel. However, it remains the legal obligation of the 
facility owner or operator to assess and address computer system and 
network vulnerabilities in the FSA and FSP. In our discussion of FSAs 
in the 2003 final rule, we explained that a facility's security depends 
in large part on how well the owner or operator assess vulnerabilities 
that only he or she would know about.\5\ The rule requires that those 
involved in a FSA be able to draw upon expert assistance in variety of 
areas including current security threats, techniques used to circumvent 
security measures, and radio and telecommunications systems including 
computer systems and networks.\6\ The Coast Guard believes this 
includes the expertise needed to self-assess risk and establish 
security measures to counter the risks involved with a MTSA-regulated 
facility's computer systems and networks.
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    \5\ 68 FR 60533. In the same paragraph we added that the 
facility owner or operator must assume that threats will increase 
against the vulnerable part of the facility and develop 
progressively increasing security measures, as appropriate.
    \6\ 33 CFR 105.300(d) and 106.300(d).
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    The level of cyber security knowledge and training of facility 
personnel is the responsibility of a facility's owner or operator, as 
performed through their FSO. The FSO's responsibilities are provided in 
MTSA regulations, 33 CFR 105.205 and 106.210. They include the 
responsibility to ensure the completion of an FSA and completeness of 
an FSP, which should capture all items identified by the FSA, including 
existing computer system and network vulnerabilities. At this time, the 
Coast Guard is not planning to provide specific cyber training nor lead 
cyber exercises for MTSA-regulated facilities or their personnel. 
However, in May 2018 the Coast Guard, in coordination with the American 
Bureau of Shipping (ABS) group, created a ``Marine Transportation 
System Cyber Awareness'' webinar. The webinar provides basic cyber 
awareness with a focus on maritime facility and vessel operations and 
provides personnel at all levels of an organization with an 
understanding of cyber terms and issues that may be encountered in the 
MTS. A recording of the webinar is available online.\7\ Maritime 
industry personnel are encouraged to reach out to their local Area 
Maritime Security Committee (AMSC) Executive Secretaries for additional 
information on this webinar.
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    \7\ http://mariners.coastguard.dodlive.mil/2018/06/08/6-8-2018-marine-transportation-system-cyber-awareness-webinar-recording-available-online/.
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    In response to the question regarding a facility IT department's 
inclusion into facility personnel with cyber security duties, the Coast 
Guard notes this NVIC is not intended to dictate the structure of a 
facility organization. Each individual facility should determine its 
appropriate organizational structure and determine whether making a 
facility's IT department a part of the security personnel would help 
the facility address its cyber security risks.
    In response to the question about offsite storage of IT data, the 
Coast Guard agrees with the commenter that the Coast Guard's MTSA 
jurisdiction ends at the facility's fence-line in the physical domain. 
The Coast Guard notes that the regulations found in 33 CFR part 105 or 
106 are not drafted to exert regulatory control over computer systems 
physically located outside the regulated facility's footprint (for 
example, in a building outside the facility footprint where the 
critical cyber system is housed). However, if an FSA identifies 
vulnerabilities to the facility, including to the onsite computer 
systems, originating from or via computer systems and networks outside 
of the MTSA-regulated facility's footprint, then the owner or operator 
needs to address how they will mitigate those vulnerabilities.
    Based on the comments received, the Coast Guard added text on pages 
1-1 and 1-2 of the NVIC's Enclosure (1) to give the facility owners and 
operators an example of what they should consider within their broad 
discretion in addressing their facility cyber security vulnerabilities, 
including the facility's structure, and its personnel training, roles 
and responsibilities.
    C. Several commenters stated that the NVIC should be revised to use 
only common cyber security language, and

[[Page 16111]]

reference specific standards (for example, the International 
Association of Drilling Contactors (IADC) Guidelines for Assessing and 
Managing Cyber Security Risks at Drilling Assets, and IADC Guidelines 
for Network Segmentation) to assist owners and operators in addressing 
computer system and network vulnerabilities.
    The Coast Guard recognizes the draft NVIC interchangeably used 
various terms such as, ``cyber systems,'' ``cyber risks,'' ``cyber/
computer system security,'' and ``cyber security.'' We agree that the 
NVIC should use common cyber security language. Based on these 
comments, the Coast Guard revised the NVIC and its Enclosure (1) to 
clarify the meaning of provisions of 33 CFR parts 105 and 106. These 
MTSA regulations require facilities to evaluate their radio and 
telecommunication equipment, including computer systems and networks, 
for vulnerabilities. These provisions require facility owners and 
operators of MTSA-regulated facilities to analyze cyber security 
vulnerabilities within their facilities.
    In regard to the use of specific cyber security references and 
standards, the Coast Guard encourages facilities to use the NIST CSF, 
but does not prescribe any particular references or standards at this 
time. This is to avoid limiting facility owners and operators in the 
ways they may address computer system and network vulnerabilities at a 
specific facility. The Coast Guard did not make any edits to the text 
of the final NVIC in regards to specific references or standards. 
However, in response to several public comments supporting the NIST 
CSF, we added a sentence to paragraph (2) of the NVIC encouraging the 
use of the NIST CSF as a means to improve a facility's cyber posture.
    D. The draft NVIC's Enclosure (1) recommended facility owners and 
operators establish security measures to control access to the 
facility.
    Based on that recommendation, some industry commenters expressed 
concerns about the NVIC's focus on physical security rather than cyber 
security. At the same time, other commenters indicated that MTSA was 
meant to address only physical security of computer systems and 
networks and did not apply to cyber security.
    MTSA requires that security plans address both physical security 
and communications systems, to deter to the maximum extent practicable 
a transportation security incident.\8\ MTSA regulations in 33 CFR parts 
105 and 106 require MTSA-regulated facilities to analyze their ``radio 
and telecommunications equipment, including computer systems and 
networks.'' \9\ As such, the FSAs must identify vulnerabilities to the 
facility computer systems and networks, and, if any exist, the FSP must 
address mitigation for those identified vulnerabilities. Moreover, in 
the time since the Coast Guard solicited public comment on the draft 
NVIC, Congress has amended MTSA to explicitly state that FSAs and FSPs 
must cover cyber security risks.\10\ We disagree with assertions that 
the existing requirement to assess vulnerabilities to computer systems 
and networks refers only to physical security. In addition to the plain 
language of ``computer systems and networks'' used in the 2003 rule, 
the preamble to the rule specifically discussed camera monitoring as an 
alternative to human patrols, showing that the Coast Guard had 
contemplated electronic systems as part of the facility security 
systems covered by the rule.\11\ The existing regulatory text 
contemplates a regularly updated plan for responding to existing and 
developing threats the facility owner or operator identifies. When 
developing an FSA the facility security officer is expected to either 
be able to, or draw upon third parties that have expertise to, identify 
security vulnerabilities, including vulnerabilities to computer systems 
and networks.\12\ This requirement has been in place since 2003. It is 
not limited to physical threats, and the preamble said that the 
facility owner or operator must assume that threats will increase, and 
must develop progressively increasing security measures as 
appropriate.\13\ While initial FSAs and FSPs did focus primarily on 
physical security issues because those were readily identifiable, the 
Coast Guard has continually raised cyber security as an emerging issue 
for over a decade \14\ and the NVIC issued today is another form of 
outreach to industry about this threat to facilities. We think it is 
clear, therefore, that the existing requirement to assess and mitigate 
vulnerabilities to computer systems and networks encompasses cyber 
security.
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    \8\ 46 U.S.C. 70103(c)(3). We note that Congress was aware of 
cyber security issues as early as the 1980s, and specifically 
addressed viruses and Trojan horses the year after passing MTSA. 
See, e.g., the Computer Fraud and Abuse Act of 1986, 18 U.S.C. 1030 
(1986) (addressing malicious code and hacking, and under which 
successful prosecution was brought in the early 1990s for damage 
caused by internet-based worms); and the CAN-SPAM Act of 2003, 15 
U.S.C. 7701, 7703(c)(1) (2003) (aiming to curb spam email containing 
viruses, spyware, and other malicious code).
    \9\ See 33 CFR 105.305(c)(1)(v), 105.400(a)(3), and 
105.405(a)(17) for Facilities and 33 CFR 106.305(c)(1)(v), 
106.400(a)(3), and 106.405(a)(16) for Outer Continental Shelf 
Facilities.
    \10\ Maritime Security Improvement Act of 2018, sec. 1801 et 
seq., Public Law 115-254, 132 Stat. 3186 (2018) (the Act is Division 
J of the FAA Reauthorization Act of 2018). The Coast Guard views 
this as a reaffirmation and an indication of congressional emphasis, 
rather than a new authority--a view supported by the House Report 
accompanying an earlier version of the Act, which said the language 
is clarifying and ``removes ambiguity'' as to the Coast Guard's 
authority under MTSA (H. Rep. No. 115-356 (2018)).
    \11\ 68 FR 60531.
    \12\ 33 CFR 105.305(c) and (d). In the preamble to the 2003 
rule, while discussing current security threats and patterns the 
Coast Guard stated that ``Expertise in assessing risk is crucial for 
establishing security measures to accurately counter the risk'' (68 
FR 60515).
    \13\ 68 FR 60533.
    \14\ See, e.g., Maritime Transportation System Security 
Recommendations (October 2005) available at https://www.dhs.gov/sites/default/files/publications/HSPD_MTSSPlan_0.pdf (``Use industry 
outreach to help commercial operators understand what private 
information could be exploited by terrorists and what cybersecurity 
controls are appropriate for protecting the information.'').
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    Moreover, to the extent facility owners and operators have 
automated physical security measures--for example by controlling access 
gates with card readers and cameras instead of guards--MTSA's physical 
security provisions encompass those electronic or virtual tools. The 
regulations specifically enumerate requirements to consider 
vulnerabilities to access, identification systems, utilities, and 
similar functions that, if automated, may be vulnerable to cyber 
security threats. At some facilities, operations and security are so 
reliant on networks to operate, that cyber security and physical 
security may be inextricably linked. We recognize that this is not true 
of all facilities; some facilities may have no computer systems or 
networks at all. The focus of this NVIC, therefore, is to highlight 
each facility's responsibility to determine the existence of computer 
and network vulnerabilities and address them in their FSAs and FSPs.
    In response to these and other similar comments, the Coast Guard 
made clarifying changes to both the NVIC and its Enclosure (1). We 
added a sentence linking computer systems and networks to the term 
``cyber security.'' We indicated that vulnerabilities in computer 
systems and networks, as referenced in 33 CFR parts 105 and 106, mean 
cyber security vulnerabilities. We also noted that it was up to each 
facility to identify, assess, and address the vulnerabilities of their 
computer systems and networks.
    E. Three commenters asked the Coast Guard to recommend specific 
cyber security technology (including state-of-

[[Page 16112]]

the art market cyber security solutions) that a facility would need to 
have, and steps it would need to take, to implement the guidance 
described in the NVIC. At the same time, some commenters noted that 
mandating specific cyber risk management tools would not benefit MTSA-
regulated facilities as those tools would not be tailored to each 
individual site.
    This NVIC is not intended to inform facilities which cyber security 
technology they need to use. Rather, it is intended to offer awareness 
of MTSA regulatory requirements while allowing each facility the 
discretion to determine the best way to assess and address any computer 
system and network vulnerabilities. The NVIC does not mandate that 
facilities use specific cyber security technology or take specific 
actions to mitigate a computer system or network vulnerabilities. It 
simply reminds facility owners and operators of existing MTSA 
regulations that require the assessment of computer system and network 
vulnerabilities in their FSAs and incorporation, where applicable, in 
their FSPs. Therefore, for an owner and operator of an MTSA-regulated 
facility to comply with the MTSA regulations referenced in the NVIC, 
they would need to ensure the FSA assesses and FSP addresses computer 
system and network vulnerabilities of their facility. Based on these 
comments, the Coast Guard added clarifying language in the final NVIC 
and its Enclosure (1). We stated that it is up to each facility to 
identify, assess, and address the vulnerabilities of their computer 
systems and networks.
    F. The draft NVIC's Enclosure (1) recommended that facility owners 
and operators describe additional cyber-related measures to be taken 
during changes in MARSEC levels.
    In response to that recommendation, several commenters stated that 
requiring enhanced cyber security measures as a result of a MARSEC 
level increase would be impractical, and asked the Coast Guard to 
eliminate this expectation of the facilities. One of the commenters 
also asked the Coast Guard to inform the industry on the level of cyber 
security and any necessary response, as it does for physical security, 
including changes in MARSEC levels.
    Although both 33 CFR 105.230 and 33 CFR 106.235 require facility 
owners and operators to implement additional security measures in the 
event of a MARSEC level change, the Coast Guard agrees that it may not 
always be practical to do the same with cyber security. Some changes in 
MARSEC level could involve cyber security threats but others may not, 
and a change in cyber security posture may not always be appropriate. 
In response to public comments, the Coast Guard revised the NVIC's 
Enclosure (1) to remove the language related to changes in MARSEC 
levels and references to 33 CFR 105.230 and 106.235. Under existing 
regulations including those at 33 CFR 105.405 and 106.405, however, the 
FSP must indicate how the facility will respond to a changing MARSEC 
level.
    G. The draft NVIC's Enclosure (1) indicated that if any cyber 
security vulnerabilities were identified in an FSA, owners and 
operators could choose to provide that information in a variety of 
formats, such as a stand-alone cyber annex to an FSP, or by 
incorporating the vulnerabilities into the existing FSP. In response to 
this statement, some commenters expressed confusion regarding multiple 
formats in which the Coast Guard will require an incident report. The 
Coast Guard notes that an FSA, a stand-alone cyber annex, or an 
amendment to an approved FSP addressing computer system or network 
vulnerabilities, are documents completely separate from a cyber-
incident report. This NVIC addresses MTSA cyber security requirements 
related to FSAs and FSPs. For more information on reporting a cyber 
security incident, please consult the CG-5P Policy Letter 08-16 titled 
``Reporting Suspicious Activity and Breaches of Security,'' available 
at https://homeport.uscg.mil. The Coast Guard did not revise the NVIC 
in response to these comments because this NVIC does not impose any new 
reporting requirements on owners and operators of MTSA-regulated 
facilities.
    H. The draft NVIC's Enclosure (1) stated that security patches 
should be installed as they become available.
    One commenter had a question as to the intervals with which 
security patches should be installed at their facility.
    The draft NVIC's Enclosure (1) indicated that it was best to 
install security patches as they became available. The Coast Guard 
notes that facilities can choose the intervals with which to install 
security patches. However, waiting for scheduled intervals to install 
security patches and other updates instead of performing such actions 
immediately provides opportunities for system exploitation. However, we 
have modified the paragraph titled Security systems and equipment 
maintenance in the NVIC's Enclosure (1) to clarify that cyber-related 
procedures for managing software updates and patch installations should 
be described in the FSP.
    I. One commenter asked about reporting a cyber security incident to 
a police department as an alternative to the established reporting 
requirements.
    Contacting a local police department does not meet the reporting 
requirements described in the MTSA regulations at 33 CFR 101.305 
(``Reporting''). As noted above, the requirements for reporting 
suspicious cyber related activity or breaches of security for MTSA-
regulated entities are outlined in CG-5P Policy Letter 08-16 titled 
``Reporting Suspicious Activity and Breaches of Security,'' available 
at https://homeport.uscg.mil.
    J. Because the draft NVIC referred to various responsibilities of 
facility employees, two commenters expressed concerns about access 
facility employees may have to sensitive information and requested more 
clarity on the access process for such employees. One of the commenters 
also expressed concerns over making a company's cyber security program 
more vulnerable to attack by including it into an FSP. Two other 
commenters specifically asked about the interplay between this NVIC and 
the Coast Guard's TWIC regulations. Another commenter was concerned 
about the Coast Guard interfering with facility business models, which 
reflect facility operations.
    MTSA regulations require the inclusion of computer system and 
network vulnerabilities into an FSA and an FSP (See 33 CFR 
105.305(c)(1)(v) and 105.405(a)(17) for Facilities and 33 CFR 
106.305(c)(1)(v) and 33 CFR 106.405(a)(16) for OCS Facilities). This 
NVIC simply reminds owners and operators of the existence of MTSA 
regulations related to computer system and network vulnerabilities. 
These requirements are intended to reduce security risks, not create 
them. Although the process of granting access to facility employees was 
not meant to be addressed in this NVIC or prescribed by the Coast 
Guard, we note that it should be determined by each facility depending 
on its specific cyber security risks. This NVIC does not change any 
legal requirements including the existing requirements to operate in 
accordance with TWIC requirements (see, e.g., 33 CFR 105.115(c)).
    As to the comment regarding the inclusion of a facility's cyber 
security risks into an FSP, the Coast Guard notes that FSPs are 
considered Sensitive Security Information under 49 CFR 1520.5(b), which 
can only be accessed by a covered person with a need to know. The risk 
of adding cyber

[[Page 16113]]

mitigation measures to an FSP is not higher than the risk currently 
posed for FSPs that address physical security mitigation measures. FSPs 
are not released to the public by the Coast Guard,\15\ nor should they 
be released by the facilities.
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    \15\ See 33 CFR 105.400(c) and (d) and 33 CFR 106.400(c) and 
(d).
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    In regard to the comment about the interplay between TWIC 
regulations and this NVIC, the Coast Guard notes that this NVIC has no 
direct impact on the TWIC regulations. MTSA-regulated facilities should 
continue to follow current TWIC regulations as written.
    We also note that this NVIC is not intended to interfere with 
facility business models, but reminds facility owners and operators of 
their responsibilities under the MTSA regulations, which are meant to 
help keep their facilities safe from transportation security incidents, 
including Transportation Security Incidents (TSI) caused by cyber 
security vulnerabilities.
    We made no changes to the final NVIC in response to these comments.
    K. Two commenters asked to see a national and port vulnerability 
assessment for better understanding of the Coast Guard's expectations 
for individual operators.
    The Coast Guard does not believe that a national or port 
vulnerability assessment is necessary for an individual facility to 
assess its own cyber security vulnerabilities to comply with MTSA 
regulations. However, local AMSCs led by Coast Guard Captains of the 
Port, acting in their capacity as Federal Maritime Security 
Coordinators, address, discuss, and share maritime security information 
with the industry. The Coast Guard highly encourages personnel with 
security duties at MTSA-regulated facilities to participate and 
collaborate with local AMSCs to gain more insight into port level 
security issues.
    The Coast Guard made no changes to the final NVIC in response to 
these comments.

4. Comments on the Enforcement of the NVIC

    The draft NVIC's Enclosure (1) noted that the italicized text of 
the enclosure provided general guidance on MTSA regulations that may 
apply to an FSP, if an FSA identifies any computer system and network 
vulnerabilities
    Based on that statement, many commenters believed the NVIC 
contained mandatory language. Some of those commenters also asked to 
clarify the purpose of the italicized text, and how the Coast Guard 
intended to enforce the NVIC and allocate its resources for this 
purpose.
    The Coast Guard clarifies that the NVIC itself is an advisory 
document and is not subject to enforcement as a regulation. MTSA 
regulations, however, are enforceable. Although the Coast Guard will 
not change the enforcement process as a result of the NVIC, we will 
verify that facility FSAs and FSPs address cyber security 
vulnerabilities as required by 33 CFR 105.305(c)(1)(v), 33 CFR 
105.400(a)(3), 33 CFR 105.405(a)(17), 33 CFR 106.305(c)(1)(v), 33 CFR 
105.40(a)(3), and 33 CFR 106.405(a)(16).
    The purpose of the bold text in Enclosure (1) is to provide the 
industry with a list of regulatory citations that may apply to a 
facility's FSP. The Coast Guard's recommendation on each regulatory 
citation, for both FSA and FSP, is contained in italics under each 
citation.
    Based on these comments, the Coast Guard has revised the NVIC and 
its Enclosure (1) to clarify that although the MTSA regulations in 33 
CFR parts 105 and 106 are mandatory, it is up to each facility to 
identify, assess, and address the vulnerabilities of their computer 
systems and networks. We also added a sentence to the introduction of 
Enclosure (1) to explain the purpose of the italicized text.

5. Comments Suggesting New Provisions or Clarifying Language

    A. Several commenters asked the Coast Guard to add cyber security 
recommendations on monitoring activity. In response to these comments, 
the Coast Guard added the paragraph titled Security measures for 
monitoring to Enclosure (1) of the NVIC.
    B. The draft NVIC's Enclosure (1) stated that facility owners and 
operators may utilize a security plan under the Alternative Security 
Program (ASP).
    In response to that statement, one commenter stated that requiring 
a focused cyber security plan to go through the ASP program would 
require facilities to design their own access control, restricted area, 
cargo handling, and other measures that are not directly related to 
cyber security. One other commenter suggested that the Coast Guard 
should allow amendments to the FSP to be submitted under an ASP at the 
time of the next scheduled revision of the ASP. One of the commenters 
also asked to clarify if a facility could reference their existing 
cyber security plan documents as an alternative to the Coast Guard's 
review.
    The ASP does not require a detailed cyber security plan. Nor does 
it impose any new or different requirements. The ASP is an option that 
owners and operators may use to comply with the MTSA regulations. In 
response to the comment about referencing an existing cyber security 
plan, we note that a facility owner or operator may reference other 
documents in the ASP, but they would need to be reviewed and considered 
in the Coast Guard's approval of the ASP.
    We revised the NVIC's Enclosure (1) to clarify that the information 
contained in the NVIC also applies to the ASP, per 33 CFR 101.120(b), 
which means that the Coast Guard will accept documentation showing 
equivalent levels of security required by MTSA regulations.
    C. Some commenters asked us to use different wording in various 
parts of the NVIC and its Enclosure (1), and we discuss those changes 
here.
    1. ``[P]revent unauthorized loading/unloading cargo'' instead of 
``prevent cargo that is not meant for carriage from being accepted''; 
we made that change.
    2. ``FSPs are in place and are considered to be appropriate and 
effective'' instead of ``FSPs are in place and are believed to be 
appropriate and effective''; we made that change.
    3. ``Describe how those systems are protected and an alternative 
means of communication as well as the communication responsibility 
should the system be compromised or degraded'' instead of ``describe 
how those systems are protected and an alternative means of 
communication should the system be compromised or degraded.'' We made 
this change with some modifications.
    4. ``Describe cyber-related procedures for interfacing with vessels 
to include any network interaction, portable media exchange, or 
wireless access sharing or remote vendor servicing'' instead of 
``Describe cyber-related procedures for interfacing with vessels to 
include any network interaction, portable media exchange, or wireless 
access sharing.'' Similarly, another commenter suggested that we add 
the term ``remote access'' before the words ``portable media exchange'' 
in the original sentence. We added the term ``remote access'' and 
believe it captures the intent of both commenters.
    5. ``Describe cyber-related procedures for managing software 
updates and patch installations of systems used to perform or support 
functions identified in the FSP (e.g., identification of needed 
security updates, planning and testing of patch installations)'' 
instead of ``Cyber systems used to perform or support functions 
identified in the FSP should be maintained, tested, calibrated,

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and in good working order (e.g., conduct regular software updates and 
install security patches as they become available).'' We made this 
change.
    6. ``Describe how cyber security is included as part of personnel 
training, policies and procedures and how the cyber security training 
material will be kept current and monitored for effectiveness'' instead 
of ``Describe how cyber security is included as part of personnel 
training, policies and procedures.'' We added language about keeping 
training material current.
    7. Another commenter asked the Coast Guard to add the following 
sentence to the paragraph titled ``Communications'' in Enclosure (1): 
``During crew or shift changes, handover notes should include cyber 
security related information and updates.'' The Coast Guard agrees that 
this recommendation may be useful to other facilities. We have added 
this recommendation as an example under the paragraph titled 
``Communications'' in Enclosure (1).
    8. One of these commenters also asked us to add the following 
sentence ``In case gaps are identified, corrective actions should be 
taken in order for the provisions in the FSP to be satisfied.'' to the 
end of ``The audit should include the name, position, and qualification 
of the person conducting the audit.'' We did not incorporate the new 
audit sentence into the NVIC because it is expected that the FSPs 
should account for gaps in security.
    D. One commenter requested that we add guidelines applicable to 
MTSA-regulated vessels.
    The Coast Guard notes this NVIC was not meant to address vessels. 
It addresses MTSA-regulated facilities only. We will consider 
addressing cyber security vulnerabilities for vessels in the future.
    Based on this comment, we have revised the text of the final NVIC 
to clarify its applicability to MTSA-regulated facilities only.
    E. Another commenter asked us to clarify where the abbreviation 
``N/A'' was supposed to be placed as asked in the following sentence of 
Enclosure (1): ``If the area or function has no cyber nexus, indicate 
``N/A.''
    We have added the clarification as requested and added the 
following to the end of the sentence: ```N/A'' in the FSA and FSP.''
    F. The Coast Guard was also asked to re-number the draft NVIC's 
Enclosure (1) to preserve traditional NVIC formatting, which we have 
done.
    G. Five commenters asked us to clarify the definition of the term 
``general documentation'' in the paragraph titled MTSA regulations in 
33 CFR parts 105 and 106 in the NVIC's Enclosure (1).
    The Coast Guard used the term ``general documentation'' to indicate 
that owners and operators would not have to use any specific forms or 
indicate the use of any specific technology when demonstrating 
compliance with the MTSA regulations. In addition, the Coast Guard's 
intent was to highlight that facility owners and operators could use an 
ASP to submit documentation showing equivalent levels of security 
required by MTSA.
    Based on these comments, we deleted the word ``general'' from 
Enclosure (1) and added a footnote stating ``[i]n addition, facility 
owners and operators may rely on the Coast Guard Alternative Security 
Program to submit documentation showing equivalent levels of security 
required by MTSA.''
    H. Three other commenters requested a clarification of security 
requirements for ports, transportation sector facilities, seaport 
systems, offshore facilities, and individual operators, based on their 
operating environment.
    We note that this NVIC was not intended to address security 
requirements for ports, transportation sector facilities, or seaport 
systems. This NVIC applies to MTSA-regulated facilities, including 
offshore facilities, and individual operators subject to MTSA. The 
NVIC's Enclosure (1) references MTSA regulations that may apply to 
MTSA-regulated facilities, depending on a facility's operating 
environment and structure. It is each facility's responsibility to 
determine what computer system and network vulnerabilities may be 
created by their operating environment and address those 
vulnerabilities in their FSAs and FSPs.
    Based on these comments, we have revised the final text of the NVIC 
and its Enclosure (1) to clarify the NVIC's applicability.
    I. Two industry commenters asked the Coast Guard to provide 
additional language on Global Positioning Systems (GPS) and Internet of 
Things (IoT) devices. Specifically, one of the commenters asked the 
Coast Guard to include into the NVIC the following language: ``A 
powerful but little recognized method of cyberattack, GPS disruption 
can disable end-use devices, interfere with communications links, and 
provide hazardously misleading information to users and databases. 
Because GPS signals undergird nearly every technology, DHS officials 
have called GPS a single point of failure for critical 
infrastructure.''
    If GPS systems or IoT devices present a vulnerability to a MTSA-
regulated facility's computer or network system, they fall within the 
existing regulations at 33 CFR parts 105 and 106, and should be 
addressed in the FSP. However, these concerns are broad and, in the 
case of IoT, still developing, and so we don't think it is appropriate 
to devote a section of the NVIC to them at this time.
    Therefore, the Coast Guard did not make edits to the text of the 
final NVIC based on these two comments
    J. One other industry commenter asked for the NVIC to address the 
risks of third party contractor access to critical cyber systems and 
networks.
    These concerns are valid. However, it is up to the owner or 
operator of a particular facility to determine if a third party having 
access to the facility's computer systems and networks presents a risk 
that should be mentioned in the facility's FSA and FSP.
    We made no changes to the final NVIC in response to this comment.
    K. Three commenters suggested that we classify MTSA facilities as 
``critical control systems/controls'' and require them to be air-gapped 
from business network systems. Two other commenters requested more 
clarity on mitigation of cyber security risks.
    This NVIC is not meant to impose requirements on the owners and 
operators of MTSA-regulated facilities or suggest specific ways cyber 
risks should be mitigated. This NVIC is meant to make facility owners 
and operators aware of the existence of the MTSA regulations, which are 
meant to assist them in protecting their facilities. It is up to each 
facility to determine if computer system and network vulnerabilities 
existing at the facility require air-gapping to mitigate 
vulnerabilities.
    We made no changes to the final NVIC in response to this comment.

6. Other Comments About the NVIC

    A. The draft NVIC stated: ``[u]ntil specific cyber risk management 
regulations are promulgated, facility operators may use this document 
as guidance to develop and implement measures and activities for 
effective self-governance of cyber vulnerabilities.''
    Based on these statements, two commenters expressed concerns as to 
the Coast Guard's regulatory authority to control how companies execute 
their cyber risk management and its authority to issue this NVIC 
without a notice of proposed rulemaking (NPRM). Another commenter asked 
the Coast Guard to perform a risk assessment and cost benefit analysis 
as a next step in the NVIC's development.

[[Page 16115]]

    The Coast Guard acknowledges the comments and notes that this NVIC 
is not a rule. As explained in detail earlier in this notice, the Coast 
Guard is also not using its regulatory authority to issue this NVIC or 
control how companies execute their cyber risk management decisions. To 
the contrary, this NVIC constitutes advisory guidance meant to assist 
facility owners and operators in complying with existing MTSA 
regulations. The NVIC emphasizes that a facility is already obligated 
by existing MTSA regulations to assess and address vulnerabilities in 
computer systems and networks, but it has discretion to determine how 
it will comply with the regulations and address its own cyber security 
risks.
    Based on these comments, we have revised the text of the NVIC and 
its Enclosure (1) to clarify the advisory nature of the NVIC.
    B. The U.S. Chamber of Commerce asked us to keep the NVIC in the 
draft form and to have an ongoing dialog facilitating input from 
industry stakeholders. The Chamber suggested that the Coast Guard 
present the NVIC as a voluntary risk management tool, which might 
become a beacon around which cyber security efforts could orient.
    The Coast Guard acknowledges this comment and agrees that the NVIC 
is a voluntary risk management tool, in that it informs owners and 
operators about their existing regulatory obligations, and provides 
suggestions for fulfilling those obligations. However, the Coast Guard 
believes that finalizing the NVIC will provide owners and operators 
with needed guidance on how to comply with the MTSA regulations 
relating to computer and network security. Dialogue about cyber risk 
management will continue to occur in a variety of forms, and the NVIC 
provides contact information should the regulated public wish to 
contact the Coast Guard with questions or concerns.
    Based on this comment, we did not make any revisions to the final 
NVIC.
    C. The draft NVIC stated the Coast Guard had the regulatory 
authority to instruct MTSA-regulated facilities to analyze computer 
systems and networks for potential vulnerabilities within their 
required FSA and, if necessary, address those vulnerabilities in their 
FSP.
    In response to that statement, three commenters suggested the Coast 
Guard state that the facilities, to comply with MTSA, could limit their 
cyber security measures to those information technology systems and 
networks that have a direct maritime nexus. One of the commenters also 
asked the Coast Guard to develop clear guidelines on cyber TSIs and 
connections to MTSA facilities.
    The Coast Guard is vested with authority to verify that MTSA-
regulated facilities comply with MTSA regulations, including the ones 
relating to computer systems and networks regardless of whether that 
system or network has a direct maritime nexus. In regards to a TSI and 
connections to MTSA facilities, the Coast Guard notes that this NVIC 
was not intended to discuss TSIs. However, we note that a TSI, as 
defined in 33 CFR 101.105, is not limited to incidents with a specific 
maritime cause. A TSI may result from a physical or cyber security 
incident which originates from outside of the maritime environment. For 
example, plausible TSIs caused by cyber threats could include: 
Deliberate disabling of a facility's fire detection equipment, security 
cameras, or security locks; a hack or ransomware that leaves such 
systems inaccessible; damage to computer-controlled ventilation or 
temperature control features at chemical facilities; or tampering with 
or disabling the automated supply chain in a way that causes 
significant economic disruption.
    For the reasons stated, we did not make any changes to the text of 
the final NVIC.
    D. The draft NVIC's Enclosure (1) recommended that owners and 
operators address cyber security vulnerabilities in their FSPs.
    In response to that recommendation, some commenters expressed 
general concerns about regulating fast-paced cyber security demands of 
the commercial industry, the NVIC's focus on cyber vulnerabilities 
rather than cyber risk management, and provided a suggestion for the 
government to protect private companies from cyber-attacks.
    These comments are general in nature and do not raise any specific 
issues within the NVIC. The Coast Guard acknowledges these comments and 
will consider them as part of the general on-going dialog on how to 
improve cyber security at maritime facilities. We did not make any 
changes to the final NVIC based on these comments.
    The Coast Guard appreciates all the comments received. We will 
continue to study this issue in light of the comments received before 
issuing other notices or policy letters on this matter.

    Dated: February 26, 2020.
Karl L. Schultz,
Admiral, U.S. Coast Guard, Commandant.
[FR Doc. 2020-05823 Filed 3-19-20; 8:45 am]
 BILLING CODE 9110-04-P


