On November 13, 2023, the U.S. Coast Guard published Policy Letter 23-05 which provides the first actual guidance for vessel owners and operators on the expectations for the surveillance equipment that they are required to install and maintain under the Safer Seas Act, which became law in December 2022 as part of the James M. Inhofe National Defense Authorization Act (NDAA) for Fiscal Year 2023. The requirement for surveillance equipment is codified in 46, U.S.C. § 4901. This new guidance from the USCG provides much needed answers to some of the questions that have kept vessel owners from taking action to comply with the surveillance requirements of the Safer Seas Act for fear of installing equipment that would later be considered non-compliant.
The following vessels must install video and audio surveillance in all passageways “into which doors from staterooms open.”
- Documented vessels with overnight accommodations for at least 10 individuals on board that are
- on a voyage of at least 600 miles and crosses seaward of the Boundary Line; OR
- at least 24 meters (79 feet) in overall length and required to have a load line under 46 U.S.C. Chapter 51 – Load Lines;
- Documented vessels of at least 500 gross tons as measured under 46 U.S.C. § 14502, or an alternate tonnage measured under 46 U.S.C. § 14302 as prescribed by the Secretary under 46 U.S.C. § 14104 on an international voyage;
- Vessels with overnight accommodations for at least 10 individuals on board that are operating for no less than 72 hours on waters superjacent to the outer Continental Shelf (as defined in section 2(a) of the Outer Continental Shelf Lands Act (43 U.S.C. 1331(a))).
The new guidance on equipment in Policy Letter 23-05 includes the following:
- Recordings must be continuous and uninterrupted – significantly this means no motion-activated cameras.
- Video capturing equipment should be of sufficient resolution, frame rate, and sensor and lens quality to identify persons and their actions under all ambient lighting conditions.
- Video cameras should also be installed so that no area requiring coverage is obstructed from view.
- Where obstructions exist, additional cameras should be installed to ensure comprehensive coverage, meaning there must be sufficient cameras to continually monitor every stateroom door onboard.
- Audio recording equipment should be of sufficient sample rate, bit depth, and microphone quality to ensure reasonable discernment of conversations and words spoken in all foreseeable ambient noise conditions and from anywhere within the areas requiring coverage.
- Where needed, owners should consider noise-canceling microphone technology.
Policy Letter 23-05 states that the “focus on quality and clarity of both video and audio surveillance is integral to effective implementation and compliance … to promote incident prevention and improved incident response measures.”
The video and audio surveillance recordings must be retained for at least one year if no incident is reported and for five years if an incident is reported. Additional requirements in Policy Letter 23-05 include that the recordings must have accurate time synchronization, timestamping, and metadata to ensure all retained information can be accurately associated with the date, time, and location of a particular recording. Recordings may be kept physically onboard or in the owner’s office or may be stored in a cloud-based service if the metadata is maintained.
Crew members must be trained in retention of the surveillance recordings and “on applicable Federal, State, Tribal, and local laws and regulations regarding sexual assault and sexual harassment investigations and reporting requirements.” Policy Letter 23-05 clearly states that the USCG requires detailed records of such training, including the date, location, topics covered, and personnel in attendance. “In instances where a vessel is mandated, or voluntarily chooses to maintain a Safety Management System (SMS), the company and vessel policies and procedures for conducting and documenting training must be included in the SMS.”
Surveillance equipment is required to be installed no later than December 23, 2024, or during the next scheduled drydock, whichever date is later. USCG Marine Inspectors will be checking for compliance with the surveillance equipment requirements and other provisions of the Safer Seas Act when boarding vessels and deficiencies in satisfying the requirements of the Safer Seas Act will be documented.
If you have further questions, contact Liskow attorneys Jessie Shifalo, Kindall James, or Lance Bullock.
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