[Federal Register: September 28, 2007 (Volume 72, Number 188)]
[Rules and Regulations]
[Page 55043-55049]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr28se07-7]
[[Page 55043]]
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DEPARTMENT OF HOMELAND SECURITY
Coast Guard
33 CFR Parts 101, 105 and 106
Transportation Security Administration
49 CFR Part 1572
[Docket Nos. TSA-2006-24191; USCG-2006-24196]
RIN 1652-AA41
Transportation Worker Identification Credential (TWIC)
Implementation in the Maritime Sector; Hazardous Materials Endorsement
for a Commercial Driver's License
AGENCY: Transportation Security Administration (TSA), United States
Coast Guard, Department of Homeland Security (DHS).
ACTION: Final rule.
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SUMMARY: The Department of Homeland Security (DHS), through the
Transportation Security Administration (TSA) and the United States
Coast Guard (Coast Guard), issues this final rule to amend provisions
of its previously issued final rule, to allow for greater participation
in the TWIC program and codify final fees to obtain a TWIC. This final
rule continues to further secure our Nation's ports and modes of
transportation, and also implements the Maritime Transportation
Security Act of 2002 (MTSA) and the Security and Accountability for
Every Port Act of 2006 (SAFE Port Act). Those statutes require
credentialed merchant mariners and individuals with unescorted access
to secure areas of vessels and facilities to undergo a security threat
assessment and receive a biometric credential, known as a
Transportation Worker Identification Credential (TWIC).
With this final rule, the Coast Guard amends its regulations on
vessel and facility security, requiring the use of the TWIC as an
access control measure. Specifically, the Coast Guard is amending its
definition of secure areas, to take into account facilities in the
Commonwealth of the Northern Mariana Islands, whose workers are not
required to obtain work visas from the United States before being
allowed to work.
With this final rule, TSA amends its regulations on TWIC to allow
additional non-resident aliens to apply for a TWIC if they are working
in a job that requires them to have unescorted access to a maritime
facility regulated under 33 CFR parts 105 or 106. TSA also amends the
scope provision of the rule to include additional non-resident aliens
that may apply for TWIC. TSA amends its regulations to clarify those
credentialed merchant mariners who may receive a TWIC at a reduced fee.
TSA amends the fee portion of the regulation, increasing the
replacement credential fee from $36 to $60 and codifying the other fees
that were announced in the Federal Register on March 20, 2007. Finally,
TSA announces a reduction in the fee charged by the Federal Bureau of
Investigation (FBI) to conduct fingerprint-based criminal history
record checks (CHRCs) that are submitted to the FBI electronically.
Therefore, the standard fee for a TWIC is $132.50 and the reduced TWIC
fee for applicants who have completed a comparable threat assessment is
$105.25.
DATES: This final rule is effective September 28, 2007.
ADDRESSES: Comments and material received from the public, as well as
documents mentioned in this preamble as being available in the docket,
are part of dockets TSA-2006-24191 and USCG-2006-24196, and are
available for inspection or copying at the Docket Management Facility,
U.S. Department of Transportation, West Building Ground Floor, Room
W12-140, 1200 New Jersey Avenue SE., Washington, DC 20590, between 9
a.m. and 5 p.m., Monday through Friday, except Federal holidays. Until
September 27, 2007, you may also find and submit electronic comments to
this docket on the Internet at http://dms.dot.gov. You may submit
documents by fax, by courier or in person until September 28 at noon.
On October 1, the Federal Docket Management System (FDMS) will replace
the current system and you will be able to find and submit related
documents at http://www.regulations.gov. The mailing address and fax numbers
will remain the same.
FOR FURTHER INFORMATION CONTACT: If you have questions on the TSA
portions of this rule, call Christine Beyer, telephone (571) 227-2657.
If you have questions on the Coast Guard portions of this rule, call
LCDR Jonathan Maiorine, telephone 1-877-687-2243. If you have questions
on viewing the docket, call Renee V. Wright, Program Manager, Docket
Operations, telephone (202) 493-0402.
SUPPLEMENTARY INFORMATION:
I. Regulatory History
On May 22, 2006, The Department of Homeland Security (DHS) through
the United States Coast Guard (Coast Guard) and the Transportation
Security Administration (TSA) published a joint notice of proposed
rulemaking entitled ``Transportation Worker Identification Credential
(TWIC) Implementation in the Maritime Sector; Hazardous Materials
Endorsement for a Commercial Driver's License'' in the Federal
Register. 71 FR 29396. This was followed by a 45-day comment period and
four public meetings. The Coast Guard and TSA issued a joint final
rule, under the same title, on January 25, 2007 (hereinafter referred
to as the original TWIC final rule). 72 FR 3492. The preamble to the
original TWIC final rule contains a discussion of all the comments
received on the NPRM, as well as a discussion of the provisions found
in that final rule, which became effective on March 26, 2007.
On July 13, 2007, the Coast Guard issued another final rule,
extending the deadline for facilities wishing to redefine their secure
areas, under 33 CFR 105.115. 72 FR 38486. This delay allowed facility
owners and operators to take guidance, issued by the Coast Guard in
Navigation and Vessel Inspection Circular 03-07 on July 6, 2007, into
consideration before being required to submit new security plans.
II. Background and Purpose
A complete discussion of the background and purpose of the original
TWIC final rule may be found beginning at 72 FR 3494. This final rule
is being issued in order to make amendments to the original TWIC final
rule that have become necessary due to delays in the implementation of
the original TWIC final rule, or that are necessary in order to allow
for a more effective implementation of the original TWIC final rule.
III. Discussion of Changes
A. Secure Areas
With this final rule, the Coast Guard amends its regulations on
vessel and facility security, requiring the use of the TWIC as an
access control measure. Specifically, the Coast Guard is amending its
definition of secure area to take into account facilities in the
Commonwealth of Northern Mariana Islands (CNMI) where non-resident
alien workers are not required to obtain work visas from the United
States before being allowed to work. Under the existing rule, these
workers are ineligible to obtain TWICs. There are currently 12
facilities regulated by part 105 located in the CNMI. Non-resident
alien workers at these facilities are not required to obtain visas from
the U.S. Department of State (State Department)
[[Page 55044]]
before being allowed to work at facilities in CNMI. Without this
amendment, these workers would be unable to obtain TWICs, and the
facilities in CNMI would lose approximately 50 percent of their present
workforce. Note that these facilities must continue to implement their
previously approved facility security plans, which include provisions
for maintaining access control. Vessels coming from the CNMI to any
other port in the United States will still need to go through the same
port state control screening required of a vessel coming from a foreign
country. Additionally, workers provided unescorted access to facilities
in the CNMI would not be eligible for unescorted access to any other
part 105 facility, nor would they be eligible for unescorted access to
any part 104 vessel, unless the were issued a TWIC. This amendment may
be found at 33 CFR 101.105.
B. Areas Adjacent to Vessels
The Coast Guard is also adding a provision into parts 105 and 106
to mirror a provision added into part 104 in the original TWIC final
rule. These provisions allow mariners serving aboard vessels to have
access to those spaces immediately adjacent to their vessel when they
are working in those spaces in the conduct of vessel activity, even if
they do not have a TWIC. This provision was discussed in the preamble
to the original TWIC final rule on 72 FR 3521, but the corresponding
amendments were not made in parts 105 and 106. This final rule corrects
that oversight. These amendments can be found in 105.105 and 106.105.
C. TWIC Eligibility
In the original TWIC final rule, TSA listed the categories of non-
resident aliens who work in the maritime sector and would be eligible
to apply for TWICs. TSA's intention was to allow lawful non-immigrants
with legitimate employment authorization and lawful presence to obtain
TWICs. Shortly after publication of the original TWIC final rule, Coast
Guard received comments from industry questioning why B1/OCS (Outer
Continental Shelf) and H2B visas were not included in the list of
acceptable visas under 49 CFR 1572.105. This led TSA to re-examine the
list of categories of individuals who should be able to apply for a
TWIC and to make the changes described below to allow additional non-
resident aliens to apply for a TWIC.
After further research, we determined that B1/OCS visas are
currently in use in the maritime industry to allow specialized workers
to fill open positions where U.S. employees are not available.
Approximately 4,000 B1/OCS visas are issued annually to seamen who work
at OCS operations. If these workers are not eligible to apply for a
TWIC, they will likely not be employable in OCS operations. Further,
owners/operators who currently rely on holders of B1/OCS visas will be
adversely impacted if they cannot hire workers in sufficient numbers to
keep the OCS facilities operating. For these reasons and in keeping
with the criteria we established in the original TWIC final rule to
determine which lawful non-immigrants should be eligible to apply for a
TWIC, we are adding the B1/OCS visa to the list of permissible visa
categories in 49 CFR 1572.105. (See 72 FR 3492, 3502-3505 for a full
discussion of the immigration eligibility criteria.) Holders of the B1/
OCS visa have restricted authorization to work and the restriction is
intrinsically related to the maritime industry. Individuals who hold
the visa typically will require a TWIC in order to complete their
employment duties and the employers will be required to obtain the TWIC
once the employment for which the visa was issued is completed.
At this time we are not adding the H2B visa to the list of
permissible visas in section 1572.105. We believe approximately 78,000
H2B visas are issued annually, an indeterminate number of which are
issued to maritime workers. The H2B visa is issued to temporary
unskilled or skilled workers for up to one year, without regard to
whether they work in the maritime industry. Workers who hold this visa
are not restricted to work in the maritime industry and therefore, a
maritime employer typically would have little control over when the
employment for which the visa was issued is completed and the visa
expires. This fact would make it difficult for the employer to retrieve
the TWIC if the employee ceased working at that location.
Even though TSA is not adding the H2B visas explicitly to the list
of permissible visa categories at this time, we may consider permitting
H2B visa holders to apply for a TWIC under a new provision of the rule.
We are adding new subparagraph 1572.105(a)(7)(x) to the immigration
standards to permit TSA to determine whether additional categories of
lawful non-immigrants not explicitly listed in 49 CFR 1572.105(a)(7)
may apply for a TWIC. We believe this provision is necessary to avoid
the chance that we will inadvertently exclude aliens who possess lawful
U.S. presence and are prevalent in or important to the maritime
industry. Also, given the national interest in immigration reform
legislation, there may be new visa categories created in the future
that should be eligible for TWIC. Under this new provision, TSA may
permit individuals to apply for TWIC if they possess an authorization
that confers legal status, and the legal status is comparable to those
listed in paragraphs (a)(7)(i)-(ix) of this section.
TSA will evaluate whether to add new categories of lawful non-
immigrants using the same criteria by which we created the list of
permissible categories in the original TWIC final rule. (See 72 FR
3492, 3502-3505 for a full discussion of the immigration eligibility
criteria.) The critical issues we examined and on which we rely to
determine whether an alien should be permitted to apply for a TWIC or
hazardous materials endorsement (HME) are: (1) The statutory language
regarding immigration status; (2) the degree to which TSA can complete
a thorough threat assessment both initially and perpetually on the
applicant; (3) the duration of the applicant's legal status as of the
date he or she enrolls and the degree to which we can control
possession of a TWIC once legal status ends; (4) the restrictions, if
any, that apply to the applicant's immigration status; (5) particular
maritime professions that commenters stated often involve aliens; and
(6) the checks done by the State Department or other federal agency
relevant to granting alien status.
TSA would make such determinations after careful evaluation and in
consultation with the Coast Guard, the State Department, and other
pertinent agencies within DHS. TSA would notify affected populations
and provide the appropriate training to TWIC enrollment personnel to
ensure that only the appropriate applicants are permitted to enroll.
With respect to H2B visas, commenters have informed Coast Guard and
TSA that there may be particular operations or locations, such as large
construction projects at port facilities, that rely heavily on H2B visa
holders for completion. Although we are not amending the immigration
standards to permit all H2B visa holders to apply for TWIC, we may
consider permitting workers at these locations to apply for a TWIC to
prevent adverse economic or security impacts on maritime operations.
Employers in these kinds of operations should notify their respective
Captain of the Port to discuss potential solutions to immigration
eligibility problems. There may be methods to have the H2B visas
holders complete the
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work without requiring a TWIC. See, for example, Navigation and
Inspection Circular 03-07, issued by the Coast Guard on July 2, 2007,
enclosure (3) at 3.3 c.(6). If that is not possible, TSA may consider
permitting the workers to apply for a TWIC, ensuring that the employer
is in a position to retrieve all credentials TSA issues when the
project is complete.
In addition to amending 49 CFR 1572.105(a)(7), TSA amends the scope
provision to include other individuals that TSA may consider eligible
to apply for a TWIC, such as holders of a visa not specifically listed
in 49 CFR 1572.105(a)(7) that TSA has determined should be permitted to
hold a TWIC. As discussed in the paragraph above, there may be other or
new visas or similar authorizations that we have not anticipated that
serve as legitimate grounds for lawful presence in the United States
and justification for holding a TWIC. By adding this language to the
scope provision of the rule, we remove unnecessary restrictions on
broadening the applicant pool, if the need arises in the future due to
the discovery of other visa holders or with the passage of new
legislation. Also, in the future TSA may wish to expand the TWIC
program to non-maritime modes of transportation and this new scope
provision facilitates extending coverage to other populations. For
instance, there may be situations in which a transportation worker who
seeks access to a secure or otherwise prohibited area would wish to
voluntarily undergo the threat assessment described in part 1572 to
gain the benefit of access. The expanded scope provision would
facilitate this. TSA also may wish to make the threat assessment
mandatory, not voluntary, for a new population. If so, we would provide
notice to the public and an opportunity to comment before implementing
an expansion of the requirement to a new population.
TSA also amends the scope provision of part 1572 to include
commercial drivers licensed in Canada or Mexico who apply for a TWIC so
that they may transport hazardous materials in the United States in
accordance with 49 CFR 1572.201. This population is permitted to apply
for a TWIC under the original final rule, but was inadvertently omitted
from the scope provision.
TSA is also amending its regulations to clarify which credentialed
merchant mariners who may receive a TWIC at a reduced fee. The original
TWIC final rule contained a separate implementation schedule for
mariners, which allowed a mariner who had already undergone a security
threat assessment by the Coast Guard to apply for their TWIC but forego
an additional security threat assessment by TSA. This would allow
mariners to obtain their TWIC at a reduced fee, but would also mean
that their TWIC would be given the same expiration date as the
credential for which the Coast Guard conducted their security
assessment. This provision, found at 49 CFR 1572.19(b), incorrectly
limited those mariners who may take advantage of this provision by
including an end date of March 26, 2007 (i.e., the effective date of
the original TWIC final rule). That date should have been the September
25, 2008 date, calculated to mark the compliance date for mariners, to
allow all mariners who receive their Coast Guard security assessment
before they are required to obtain a TWIC the opportunity to receive a
reduced fee and not have to undergo an additional security threat
assessment. We are amending 49 CFR 1572.19(b) to reflect the September
25, 2008 compliance date.
D. TWIC Fees
TSA is amending the TWIC Card Replacement Fee, codifying the exact
fee amounts for the Standard and Reduced TWIC Fees, and codifying a
change the FBI is making to its fees for electronic submission of
fingerprint-based criminal history record checks (CHRC).
1. Card Replacement Fee
TSA is increasing the Card Replacement Fee for lost, damaged, or
stolen TWICs to $60.00 and is amending Sec. 1572.501(d) to include the
revised amount. In the original TWIC final rule, TSA established the
Card Replacement Fee at $36.00 as was proposed in the TWIC NPRM.
However, TSA stated that a re-evaluation of the costs associated with
card replacement revealed that the actual cost should be $60.00. For a
detailed discussion of the increased Card Replacement Fee, see the
preamble of the original TWIC final rule at 72 FR 3505-3508.
In summary, the per-person cost for the Card Replacement Fee is
derived from four of the cost components that make up the total TWIC
fee: Enrollment/Issuance,\1\ the TWIC information data management
system (IDMS), Card Production, and Program Support. The Enrollment/
Issuance cost component increased by approximately one percent to
account for the contractor fee of $5 associated with replacing a
credential. The IDMS cost component increased by $19 per credential
produced due to: (1) The need to increase the hardware and software
required to obtain a Security Certification & Accreditation, and to
support the full volume of TWIC applicants; (2) system changes required
to address security vulnerabilities; and (3) increases in contractor
support necessary for systems operations and maintenance.
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\1\ Although the majority of the Enrollment/Issuance
requirements have already been satisfied by the applicant through
initial enrollment, there are still some enrollment/issuance
functions associated with card replacements, such as overhead.
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The Card Production cost increased by approximately 39 percent
based on the need to add a third work shift at the production facility
to produce cards more rapidly during the initial enrollment phase. This
increase was necessary to address concerns from stakeholders that cards
must be produced very quickly to minimize adverse impacts on commerce.
Also, this increase was necessary to cover technology and product
improvements for the TWIC system, credentials, and readers in the
future. Including the cost of technology and system improvements is a
common practice for programs that rely heavily on software and hardware
to collect and transmit large amounts of information.
Finally, the Program Support cost decreased by approximately 17
percent based on reduced program staff levels and the cost of
interagency communications. This resulted in a $2 per card decrease.
We invited comment on raising the Card Replacement fee from $36 to
$60 and received comments from four entities. One entity stated that
replacement cards should cost no more than the actual card stock and
personalization, which it asserts is $14, shipping and handling at $10,
and a reasonable contractor issuance fee of $5--a total of $29.
We developed the fees by spreading all of the program costs
(enrollment/issuance, IDMS, threat assessment, card production, and
program support) over 5 years and according to whether a particular
cost component is related to the corresponding fee. If we failed to
calculate the fees in this way, there would be an unfair distribution
of the costs among the population and over the time period, and the
regular applicant fee during initial enrollment would be significantly
higher. Thus, the card replacement fee includes a portion of the
program costs that relates to issuing a replacement card, including the
IDMS and program support costs. Therefore, we are not accepting the
recommended change--we must take into account the cost of the IDMS,
enrollment/issuance, card production, and program support
[[Page 55046]]
because producing a replacement card involves all of these program
components. As stated in the original final TWIC rule, the IDMS cost
increased by 135 percent from the NPRM due to the need for more
hardware and software, and additional security features. In addition,
card production costs increased by 39 percent due to the need to add a
third worker shift to cover card production during initial enrollment.
These increased the Card Replacement Fee.
Another entity stated that increasing the Card Replacement Fee
based on the need for three shifts rather than two at the card
production facility during the initial enrollment phase should not
apply to replacement cards at all, because most replacement cards will
be issued after the initial enrollment phase. This argument is similar
to the one immediately above. We disagree. We calculated the fees by
spreading the costs of the program over 5 years to prevent the unfair
result of having people who enroll in TWIC in the first year pay a much
higher fee than those who apply in the third year.
An entity stated that using three shifts rather than two in the
card production process should decrease, not increase, TSA's card
production costs because the fixed costs would remain and the cost per
card would be lower. We disagree. Even assuming the fixed costs remain
constant with the addition of a third shift, which would not
necessarily be the case, there are increased labor costs associated
with adding a third shift that increase TSA's costs.
An entity suggested that TSA should conduct a cost-comparison
between the federally-managed card production facility and an
established commercial card production facility, such as a credit card
facility, where high-volume services around the clock are typical. We
agree. Under the terms of the enrollment provider contract, we permit
our contractor to seek out and use other card production facilities
that offer high quality products that meet the TWIC specifications at
lower cost.
An entity commented that if a TWIC card malfunctions as a result of
normal wear, TSA should replace it free of charge. TSA is purchasing
card stock that is designed to remain operable under normal conditions
for 5 years. If TSA determines that the card stock does not perform
satisfactorily under normal handling conditions or fails to meet the
design warranty, TSA will replace the cards at no charge to applicants.
Finally, an entity claimed that technology improvements should
decrease, not increase, costs associated with the TWIC system,
credentials and card production. We agree that technology improvements
that occur in the future will improve efficiency and are likely to
reduce some costs. However, equipment and software changes will be
necessary to take advantage of the improved technology, and therefore,
those costs must be accounted for in the TWIC fee. If TSA's overall
costs decrease, TSA will reduce the TWIC fees accordingly.
2. FBI Fee
The Criminal Justice Information Services (CJIS) Division of the
FBI recently notified government agencies and other entities of revised
interim fees for fingerprint-based CHRCs, effective October 1, 2007.
The revised interim fees will remain in effect until the FBI announces
final fees through a Notice in the Federal Register. However, the FBI
does not anticipate significant changes to the interim fee structure.
The FBI is reducing its fee for electronically submitted CHRCs from
$22.00 to $17.25. The existing rule text in Sec. 1572.501(b)(3) states
that if the FBI changes its fee for CHRCs, TSA will collect the amended
FBI fee. Therefore, it is not necessary to change the rule text to
authorize TSA to collect $17.25 from applicants rather than $22.00.
Nonetheless, to avoid confusion, TSA is amending the rule text by
removing the old fee amount--``$22''-- from Sec. 1572.501(b)(3). We
are retaining the language stating that if the FBI amends its fees in
the future, TSA will collect the amended FBI fee.
3. Standard and Reduced TWIC Fees
In this final rule, TSA also codifies the exact Standard TWIC and
Reduced TWIC Fee amounts. When the original TWIC final rule was
published, we provided ranges for these fees in the preamble as
follows: the Standard TWIC Fee would be $139-$159, and the Reduced TWIC
Fee would be $107-$127. TSA could not provide exact figures at that
time because the contract for enrollment services was not yet finalized
and thus some of the costs could not be determined with specificity. We
noted that we would publish a notice in the Federal Register announcing
the exact fee amounts as soon as possible.
On March 20, 2007, TSA announced the exact fee amounts. 72 FR
13026. For the Standard TWIC Fee, the Enrollment Segment Fee would be
$43.25, the Full Card Production/Security Threat Assessment Segment Fee
would be $72, and the FBI Fee would be $22. We announced the Standard
TWIC Fee total as $137.25 ($43.25 + $72 + $22) to obtain a TWIC. In
this final rule, we are codifying the Enrollment Segment Fee ($43.25)
and the Full Card Production/Security Threat Assessment Segment Fee
($72). However, since the FBI is changing its fee as of October 1,
2007, as discussed in detail above, the new Standard TWIC Fee total for
a TWIC is $132.50. We are codifying these fees in Sec. 1572.501(b).
In March, TSA also announced that the Reduced TWIC Fee for
applicants who have completed a comparable threat assessment and can
forego a new FBI criminal check would total $105.25. This includes the
Enrollment Segment Fee of $43.25 and the Reduced Card Production/
Security Threat Assessment Segment Fee of $62. We are codifying these
fee amounts in Sec. 1572.501(c).
IV. Regulatory Requirements
A. Administrative Procedure Act
TSA and the Coast Guard provided the public an opportunity to
comment on the bases for the TWIC fee calculations. However, we did not
publish a notice of proposed rulemaking (NPRM) regarding other
amendments in this final rule. Under 5 U.S.C. 553(b)(B), the Coast
Guard and TSA find that good cause exists for not publishing an NPRM
with respect to these amendments, because providing opportunity for
public comment is unnecessary and would be contrary to the public
interest. Each of the provisions being amended by this final rule
without prior notice and comment ease a restriction on the public, in
some cases by removing regulatory requirements completely, or by
expanding the pool of persons allowed to apply for a TWIC in a manner
that meets the rule's original intent. These immediate revisions are in
the public interest because they expand the pool of workers who are
lawfully present in the United States and will perform needed services.
For the same reasons, under 5 U.S.C. 553(d)(3), the Coast Guard and TSA
also find that good cause exists for making this rule effective less
than 30 days after publication in the Federal Register.
We note that the fee provisions of this final rule were subject to
notice and comment, and therefore we need not claim good cause for the
amendments to 49 CFR 1572.501.
B. Executive Order 12866 (Regulatory Planning and Review)
This final rule is not a significant regulatory action under
section 3(f) of Executive Order 12866. The Office of Management and
Budget has not reviewed it under that Order. We expect the economic
impact of this rule to be
[[Page 55047]]
minimal and a full Regulatory Evaluation is unnecessary.
This rule provides technical clarifications and additional
flexibility for some mariners and vessel and facility owners and
operators to comply with TWIC requirements. The rule better clarifies
the definition of secure areas and corrects for omissions from the
original TWIC final rule. The rule extends the end date for mariners
who may receive a TWIC at a reduced fee. To the extent that deadlines
have changed, affected parties may incur some TWIC-related costs later
rather than sooner.
With this final rule, TSA is amending provisions to allow TSA to
evaluate and decide if individuals holding other visa types are
eligible for a TWIC on a case-by-case basis. TSA is also formally
publishing final fee changes after considering public comments and
assessing final impacts in the original TWIC final rule.
We anticipate that these changes will not substantially increase
TWIC-related compliance costs to the affected entities and in most
cases will provide them advantages through deadline extensions,
technical clarifications, and flexibility.
C. Small Entities
Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have
considered whether this rule would have a significant economic impact
on a substantial number of small entities. The term ``small entities''
comprises small businesses, not-for-profit organizations that are
independently owned and operated and are not dominant in their fields,
and governmental jurisdictions with populations of less than 50,000.
We do not expect this rule to substantially increase TWIC-related
compliance costs. This rule provides technical clarification and adds
flexibility for some mariners and vessel and facility owners and
operators affected by the TWIC requirements. The Coast Guard and TSA
certify under 5 U.S.C. 605(b) that this final rule will not have a
significant economic impact on a substantial number of small entities.
D. Assistance for Small Entities
Under sec. 213(a) of the Small Business Regulatory Enforcement
Fairness Act of 1996 (Pub. L. 104-121), we want to assist small
entities in understanding the rule so that they can better evaluate its
effects on them and participate in the rulemaking. Small businesses may
send comments on the actions of Federal employees who enforce, or
otherwise determine compliance with, Federal regulations to the Small
Business and Agriculture Regulatory Enforcement Ombudsman and the
Regional Small Business Regulatory Fairness Boards. The Ombudsman
evaluates these actions annually and rates each agency's responsiveness
to small business. If you wish to comment on actions by employees of
the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247). The Coast Guard
and TSA will not retaliate against small entities that question or
complain about the rule or any policy of the Coast Guard or TSA.
E. Collection of Information
This rule calls for no new collection of information under the
Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).
F. Federalism
A rule has implications for federalism under E.O. 13132,
Federalism, if it has a substantial direct effect on State or local
governments and would either preempt State law or impose a substantial
direct cost of compliance on them. We have analyzed this rule under
that Order and have determined that it does not have implications for
federalism.
G. Unfunded Mandates Reform Act
The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538)
requires Federal agencies to assess the effects of their discretionary
regulatory actions. In particular, the Act addresses actions that may
result in the expenditure by a State, local, or tribal government, in
the aggregate, or by the private sector of $100,000,000 or more in any
one year. Though this rule will not result in such an expenditure, we
do discuss the effects of this rule elsewhere in this preamble.
H. Taking of Private Property
This rule will not effect a taking of private property or otherwise
have taking implications under E.O. 12630, Governmental Actions and
Interference with Constitutionally Protected Property Rights.
I. Civil Justice Reform
This rule meets applicable standards in sections 3(a) and 3(b)(2)
of E.O. 12988, Civil Justice Reform, to minimize litigation, eliminate
ambiguity, and reduce burden.
J. Protection of Children
We have analyzed this rule under E.O. 13045, Protection of Children
from Environmental Health Risks and Safety Risks. This rule is not an
economically significant rule and does not create an environmental risk
to health or risk to safety that may disproportionately affect
children.
K. Indian Tribal Governments
This rule does not have tribal implications under E.O. 13175,
Consultation and Coordination with Indian Tribal Governments, because
it does not have a substantial direct effect on one or more Indian
tribes, on the relationship between the Federal Government and Indian
tribes, or on the distribution of power and responsibilities between
the Federal Government and Indian tribes.
L. Energy Effects
We have analyzed this rule under E.O. 13211, Actions Concerning
Regulations That Significantly Affect Energy Supply, Distribution, or
Use. We have determined that it is not a ``significant energy action''
under that order because it is not a ``significant regulatory action''
under E.O. 12866 and is not likely to have a significant adverse effect
on the supply, distribution, or use of energy. The Administrator of the
Office of Information and Regulatory Affairs has not designated it as a
significant energy action. Therefore, it does not require a Statement
of Energy Effects under E.O. 13211.
M. Technical Standards
The National Technology Transfer and Advancement Act (NTTAA) (15
U.S.C. 272 note) directs agencies to use voluntary consensus standards
in their regulatory activities unless the agency provides Congress,
through the Office of Management and Budget, with an explanation of why
using these standards would be inconsistent with applicable law or
otherwise impractical. Voluntary consensus standards are technical
standards (e.g., specifications of materials, performance, design, or
operation; test methods; sampling procedures; and related management
systems practices) that are developed or adopted by voluntary consensus
standards bodies.
This rule does not use technical standards. Therefore, we did not
consider the use of voluntary consensus standards.
N. Environment
The provisions of this rule have been analyzed under the Department
of Homeland Security (DHS) Management Directive (MD) 5100.1,
Environmental Planning Program, which is the DHS policy and procedures
for implementing the National Environmental Policy Act (NEPA), and
related E.O.s and requirements. The changes being made by this final
rule have no effect on the
[[Page 55048]]
environmental analysis that accompanied the promulgation of the
original TWIC final rule. That analysis can be found at 72 FR 3576-
3577.
Accordingly, there are no extraordinary circumstances presented by
this rule that would limit the use of a categorical exclusion (CATEX)
under MD 5100.1, Appendix A, paragraph 3.2. The implementation of this
rule, like the implementation of the original TWIC final rule, is
categorically excluded under the following CATEX listed in MD 5100.1,
Appendix A, Table 1: CATEX A1 (personnel, fiscal, management and
administrative activities); CATEX A3 (promulgation of rules, issuance
of rulings or interpretations); and CATEX A4 (information gathering,
data analysis and processing, information dissemination, review,
interpretation and development of documents). CATEX B3 (proposed
activities and operations to be conducted in an existing structure that
would be compatible with and similar in scope to ongoing functional
uses) and CATEX B 11 (routine monitoring and surveillance activities
that support law enforcement or homeland security and defense
operations) would also be applicable.
List of Subjects
33 CFR Part 101
Harbors, Maritime security, Reporting and recordkeeping
requirements, Security measures, Vessels, Waterways.
33 CFR Part 105
Facilities, Maritime security, Reporting and recordkeeping
requirements, Security measures.
33 CFR Part 106
Facilities, Maritime security, Outer Continental Shelf, Reporting
and recordkeeping requirements, Security measures.
49 CFR Part 1572
Appeals, Commercial drivers license, Criminal history background
checks, Explosives, Facilities, Hazardous materials, Incorporation by
reference, Maritime security, Motor carriers, Motor vehicle carriers,
Ports, Seamen, Security measures, Security threat assessment, Vessels,
Waivers.
The Final Rule
0
For the reasons set forth in the preamble, the Coast Guard amends
Chapter I of Title 33, Code of Federal Regulations, parts 101, 105, and
106 and the Transportation Security Administration amends Chapter XII,
Title 49, Code of Federal Regulations, part 1572 to read as follows:
Title 33--Navigation and Navigable Waters
CHAPTER I--COAST GUARD
PART 101--MARITIME SECURITY: GENERAL
0
1. The authority citation for part 101 continues to read as follows:
Authority: 33 U.S.C. 1226, 1231; 46 U.S.C. Chapter 701; 50
U.S.C. 191, 192; Executive Order 12656, 3 CFR 1988 Comp., p. 585; 33
CFR 1.05-1, 6.04-11, 6.14, 6.16, and 6.19; Department of Homeland
Security Delegation No. 0170.1.
0
2. In Sec. 101.105, revise the definition of ``secure area'' to read
as follows:
Sec. 101.105 Definitions.
* * * * *
Secure area means the area on board a vessel or at a facility or
outer continental shelf facility over which the owner/operator has
implemented security measures for access control in accordance with a
Coast Guard approved security plan. It does not include passenger
access areas, employee access areas, or public access areas, as those
terms are defined in Sec. Sec. 104.106, 104.107, and 105.106,
respectively, of this subchapter. Vessels operating under the waivers
provided for at 46 U.S.C. 8103(b)(3)(A) or (B) have no secure areas.
Facilities subject to part 105 of this subchapter located in the
Commonwealth of Northern Mariana Islands have no secure areas.
Facilities subject to part 105 of this subchapter may, with approval of
the Coast Guard, designate only those portions of their facility that
are directly connected to maritime transportation or are at risk of
being involved in a transportation security incident as their secure
areas.
* * * * *
PART 105--MARITIME SECURITY: FACILITIES
0
3. The authority citation for part 105 continues to read as follows:
Authority: 33 U.S.C. 1226, 1231; 46 U.S.C. 70103; 50 U.S.C. 191;
33 CFR 1.05-1, 6.04-11, 6.14, 6.16, and 6.19; Department of Homeland
Security Delegation No. 0170.1.
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4. Amend Sec. 105.105 by adding paragraph (d) to read as follows:
Sec. 105.105 Applicability.
* * * * *
(d) The TWIC requirements found in this part do not apply to
mariners employed aboard vessels moored at U.S. facilities only when
they are working immediately adjacent to their vessels in the conduct
of vessel activities.
PART 106--MARITIME SECURITY: OUTER CONTINENTAL SHELF (OCS)
FACILITIES
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5. The authority citation for part 106 continues to read as follows:
Authority: 33 U.S.C. 1226, 1231; 46 U.S.C. Chapter 701; 50
U.S.C. 191; 33 CFR 1.05-1, 6.04-11, 6.14, 6.16, and 6.19; Department
of Homeland Security Delegation No. 0170.1.
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6. Amend Sec. 106.105 by re-designating the introductory paragraph and
paragraphs (a), (b), and (c) as (a), (1), (2), and (3), respectively,
and adding paragraph (b) to read as follows:
Sec. 106.105 Applicability.
* * * * *
(b) The TWIC requirements found in this part do not apply to
mariners employed aboard vessels moored at U.S. OCS facilities only
when they are working immediately adjacent to their vessels in the
conduct of vessel activities.
Title 49--Transportation
Chapter XII--Transportation Security Administration
PART 1572--CREDENTIALING AND SECURITY THREAT ASSESSMENTS
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7. The authority citation for part 1572 continues to read as follows:
Authority: 46 U.S.C. 70105; 49 U.S.C. 114, 5103a, 40113, and
46105; 18 U.S.C. 842, 845; 6 U.S.C. 469.
Subpart A--Procedures and General Standards
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8. Revise Sec. 1572.3(b)(2) to read as follows:
Sec. 1572.3 Scope.
* * * * *
(b) * * *
(2) Is applying to obtain or renew a TWIC in accordance with 33 CFR
parts 104 through 106 or 46 CFR part 10; is a commercial driver
licensed in Canada or Mexico and is applying for a TWIC to transport
hazardous materials in accordance with 49 CFR 1572.201; or other
individuals approved by TSA.
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9. Revise Sec. 1572.19(b) to read as follows:
Sec. 1572.19 Applicant responsibilities for a TWIC security threat
assessment.
* * * * *
(b) Implementation schedule for certain mariners. An applicant, who
holds a Merchant Mariner Document (MMD) issued after February 3, 2003,
and before September 25, 2008, or a Merchant Marine License (License)
issued after January 13, 2006, and before
[[Page 55049]]
September 25, 2008, must submit the information required in this
section, but is not required to undergo the security threat assessment
described in this part.
* * * * *
Subpart B--Qualification Standards for Security Threat Assessments
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10. Revise Sec. 1572.105(a)(7) to read as follows:
Sec. 1572.105 Immigration status.
(a) * * *
(7) An alien in the following lawful nonimmigrant status who has
restricted authorization to work in the United States--
(i) B1/OCS Business Visitor/Outer Continental Shelf;
(ii) C-1/D Crewman Visa;
(iii) H-1B Special Occupations;
(iv) H-1B1 Free Trade Agreement;
(v) E-1 Treaty Trader;
(vi) E-3 Australian in Specialty Occupation;
(vii) L-1 Intracompany Executive Transfer;
(viii) O-1 Extraordinary Ability;
(ix) TN North American Free Trade Agreement; or
(x) Another authorization that confers legal status, when TSA
determines that the legal status is comparable to the legal status set
out in paragraphs (a)(7)(i)-(viii) of this section.
* * * * *
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11. Amend Sec. 1572.501 by revising paragraphs (b), (c), and (d) to
read as follows:
Sec. 1572.501 Fee collection.
* * * * *
(b) Standard TWIC Fee. The fee to obtain or renew a TWIC, except as
provided in paragraphs (c) and (d) of this section, is made up of the
total of the following segments:
(1) The Enrollment Segment covers the cost for TSA or its agent to
enroll applicants. The Enrollment Segment fee is $43.25.
(2) The Full Card Production/Security Threat Assessment Segment
covers the costs for TSA conduct security threat assessment and card
production. The Full Card Production/Security Threat Assessment Segment
fee is $72.
(3) The FBI Segment covers the cost for the FBI to process
fingerprint identification records. The FBI Segment fee is the amount
collected by the FBI under Pub. L. 101-515. If the FBI amends this fee,
TSA or its agent will collect the amended fee.
(c) Reduced TWIC Fee. The fee to obtain a TWIC when the applicant
has undergone a comparable threat assessment in connection with an HME,
FAST card, other threat assessment deemed to be comparable under 49 CFR
1572.5(e) or holds a Merchant Mariner Document or Merchant Mariner
License is made up of the total of the following segments:
(1) The Enrollment Segment covers the cost for TSA or its agent to
enroll applicants. The Enrollment Segment fee is $43.25.
(2) The Reduced Card Production/Security Threat Assessment Segment
covers the cost for TSA to conduct a portion of the security threat
assessment and card production. The Reduced Card Production/Security
Threat Assessment Segment fee is $62.
(d) Card Replacement Fee. The fee to replace a TWIC that has been
lost, stolen, or damaged is $60.00.
* * * * *
Issued in Arlington, Virginia, on September 21, 2007.
Kip Hawley,
Assistant Secretary, Transportation Security Administration.
F.J. Sturm,
Captain, U.S. Coast Guard, Acting Director, Inspections and Compliance.
[FR Doc. 07-4750 Filed 9-27-07; 8:45 am]
BILLING CODE 4910-15-P