[Federal Register: March 26, 2009 (Volume 74, Number 57)]
[Rules and Regulations]
[Page 13114-13116]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr26mr09-16]
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DEPARTMENT OF HOMELAND SECURITY
Coast Guard
33 CFR Part 101
[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: Coast Guard, DHS.
ACTION: Final rule.
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SUMMARY: The Department of Homeland Security (DHS) through the United
States Coast Guard (Coast Guard) issues this final rule to amend one
provision of its previously issued final rule. Specifically, the Coast
Guard is amending its definition of secure area to take into account
facilities in American Samoa, whose workers are not required to be
authorized to work in the United States under U.S. immigration law when
working in American Samoa.
DATES: This final rule is effective March 26, 2009.
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
(M-30), 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. You may also find this docket on the Internet by going to
http://www.regulations.gov, selecting the Advanced Docket Search option
on the right side of the screen, inserting TSA-2006-24191 or USCG-2006-
24196 in the Docket ID box, pressing Enter, and then clicking on the
item in the Docket ID column.
FOR FURTHER INFORMATION CONTACT: If you have questions on this rule,
call LCDR Jonathan Maiorine, Coast Guard; telephone 1-877-687-2243. If
you have questions on viewing the docket, call Renee V. Wright, Program
Manager, Docket Operations, telephone 202-366-9826.
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 (72 FR 3492) (hereinafter
referred to as the original TWIC final rule). The preamble to that
final rule contains a discussion of the provisions found in the
original TWIC final rule, which became effective on March 26, 2007.
On September 28, 2007, the Coast Guard and TSA issued a joint final
rule (72 FR 55043) that, among other things, revised the definition for
``secure area'' to account for facilities in the Commonwealth of the
Northern Mariana Islands (the CNMI), as non-citizen workers at those
facilities are not required to have authorization to work in the United
States under U.S. immigration law before being allowed to work.
On May 7, 2008, the Coast Guard and TSA issued a joint final rule
to realign the compliance date for implementation of the original TWIC
final rule (see 73 FR 25562). The date by which mariners need to obtain
a TWIC, and by which owners and operators of vessels and outer
continental shelf facilities must implement access control procedures
using TWIC, is April 15, 2009. Owners and operators of facilities that
must comply with 33 CFR part 105 are subject to earlier, rolling
compliance dates, as set forth in 33 CFR 105.115(e). The Coast Guard
announced these rolling compliance dates via notices published in the
Federal Register. The final compliance date for all COTP Zones is not
later than April 15, 2009.
On September 30, 2008, the Coast Guard announced the compliance
date for COTP Zone Honolulu would be February 12, 2009 (73 FR 56730).
On February 12, 2009, the Coast Guard announced the extension of that
compliance date, for the territory of American Samoa only, to April 14,
2009, due to the fact that a large percentage of the maritime workforce
is not native to the island, and does not need to be authorized to work
in the United States under U.S. immigration law before being allowed to
work in American Samoa. In that notice, the Coast Guard stated that the
extension was being granted in order to allow time
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for the Coast Guard to consult with TSA, DHS, and the Department of
State, to determine whether there is an equivalent visa category that
these workers could use to qualify for a TWIC, or whether the TWIC
requirement for facilities located in American Samoa should be
reconsidered. This final rule is the result of those deliberations.
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 an amendment to the original TWIC
final rule that is necessary to address the fact that non-citizen
workers on the island of American Samoa do not meet the immigration
eligibility standards to obtain a TWIC, but make up approximately 87%
of the maritime workers that would otherwise need a TWIC.
As in the case of the CNMI, while American Samoa is part of the
United States, it is not currently included in the definition of
``United States'' for purposes of the Immigration and Nationality Act
(8 U.S.C. 110(a)(38)) (Title VII of the Consolidated Natural Resources
Act of 2008, Pub. L. 110-229, will change this situation later this
year with respect to the CNMI only by bringing the CNMI within U.S.
immigration law). Therefore, the work authorization of aliens in
American Samoa is a matter of territorial law only, and the U.S.
immigration statuses relevant to TWIC eligibility determinations in
U.S. jurisdictions subject to the Immigration and Nationality Act do
not apply there.
III. Discussion of Change
On September 28, 2007, the Coast Guard and TSA issued a joint final
rule (72 FR 55043) that, among other provisions, revised the definition
for ``secure area'' to account for facilities in the CNMI, as workers
at those facilities are not required to have authorization to work in
the United States under U.S. immigration law before being allowed to
work in the CNMI.
Similar to the CNMI joint final rule, this final rule amends the
definition of ``secure area'' in 33 CFR 101.105, to state that
facilities otherwise subject to 33 CFR part 105 located in the
territory of American Samoa do not have secure areas for the purposes
of the TWIC regulations. This action means that only the facility
security officer and facility personnel whose primary employment
responsibility is security will be required to obtain a TWIC, per 33
CFR 105.205 and 105.210, respectively.
Note that these facilities must continue to implement their
previously approved facility security plans, which include provisions
for maintaining access control. Vessels coming from American Samoa to
any other port in the United States must continue 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 American Samoa would not be eligible for unescorted
access to any other part 105 facility outside of American Samoa, nor
would they be eligible for unescorted access to any part 104 vessel,
unless issued a TWIC.
The rule also takes the opportunity to correct a typographical
error in the definition of ``secure area'' that resulted in an
incorrect name of a U.S. territory, by changing ``the Commonwealth of
Northern Mariana Islands'' to ``the Commonwealth of the Northern
Mariana Islands''.
IV. Regulatory Requirements
The Coast Guard has not published a notice of proposed rulemaking
(NPRM) for this final rule. Under 5 U.S.C. 553(b)(B), the Coast Guard
finds that good cause exists for not publishing an NPRM, because
providing opportunity for public comment would be contrary to the
public interest. The amendment in this final rule eases a requirement,
by removing it completely for an entire class of individuals. This
serves the public interest by ensuring that after April 14, 2009,
maritime businesses in the territory of American Samoa are able to
continue operating without significantly impacting the security risk to
the port area. Without this amendment, these businesses would be forced
to escort the vast majority of their personnel in secure areas, because
87% of the maritime workforce who would require a TWIC (without this
amendment) cannot qualify for one. This would be unduly disruptive to
commerce in American Samoa and is therefore contrary to the public
interest.
For the same reasons, and because this change is required before
the April 14, 2009, TWIC compliance date, under 5 U.S.C. 553(d)(3), the
Coast Guard finds that good cause exists for making this rule effective
less than 30 days after publication in the Federal Register.
V. Regulatory Analyses
We developed this rule after considering numerous statutes and
executive orders related to rulemaking. Below we summarize our analyses
based on 13 of these statutes or executive orders.
A. Regulatory Planning and Review
This rule is not a significant regulatory action under section 3(f)
of Executive Order 12866, Regulatory Planning and Review, and does not
require an assessment of potential costs and benefits under section
6(a)(3) of that Order. The Office of Management and Budget has not
reviewed it under that Order. We expect the economic impact of this
rule to be minimal; therefore a full economic evaluation is
unnecessary.
This final rule effectively removes the TWIC requirement for the
majority of workers at facilities located in the territory of American
Samoa, thus lessening the costs of the regulatory action for the owners
of these facilities, and removing it entirely for those workers who
will no longer be required to purchase a TWIC.
B. 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.
For the reasons stated above, we expect this final rule to reduce
TWIC-related compliance costs, particularly with respect to the costs
of providing escorted access to secure areas, for facilities located in
American Samoa. Therefore, the Coast Guard certifies 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.
C. Assistance for Small Entities
Under section 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 could better evaluate
its effects on them and participate in the rulemaking. The Coast Guard
will not retaliate against small entities that question or complain
about this rule or any policy or action of the Coast Guard.
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
[[Page 13116]]
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).
D. 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).
E. Federalism
A rule has implications for federalism under Executive Order 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.
F. 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.
G. Taking of Private Property
This rule will not effect a taking of private property or otherwise
have taking implications under Executive Order 12630, Governmental
Actions and Interference with Constitutionally Protected Property
Rights.
H. Civil Justice Reform
This rule meets applicable standards in sections 3(a) and 3(b)(2)
of Executive Order 12988, Civil Justice Reform, to minimize litigation,
eliminate ambiguity, and reduce burden.
I. Protection of Children
We have analyzed this rule under Executive Order 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.
J. Indian Tribal Governments
This rule does not have tribal implications under Executive Order
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.
K. Energy Effects
We have analyzed this rule under Executive Order 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 Executive Order 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 Executive Order 13211.
L. 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.
M. Environment
We have analyzed this rule under Department of Homeland Security
Management Directive 0023.1 and Commandant Instruction M16475.lD, which
guide the Coast Guard in complying with the National Environmental
Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and have concluded
that this action is one of a category of actions which do not
individually or cumulatively have a significant effect on the human
environment. This rule is categorically excluded under section 2.B.2,
figure 2-1, paragraph (34)(c) of the Instruction. This rule involves
regulations concerning the training, qualifying, licensing, and
disciplining of maritime personnel. An environmental analysis checklist
and a categorical exclusion determination are available in the docket
where indicated under ADDRESSES.
List of Subjects in 33 CFR Part 101
Harbors, Maritime security, Reporting and recordkeeping
requirements, Security measures, Vessels, Waterways.
0
For the reasons discussed in the preamble, the Coast Guard amends 33
CFR part 101 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.
Sec. 101.105 [Amended]
0
2. In Sec. 101.105, in the definition for ``secure area'', remove the
words ``Commonwealth of Northern Mariana Islands'' and add, in their
place, the words ``Commonwealth of the Northern Mariana Islands and
American Samoa''.
Dated: March 19, 2009.
Brian M. Salerno,
Rear Admiral, U.S. Coast Guard, Assistant Commandant for Marine Safety,
Security, and Stewardship.
[FR Doc. E9-6833 Filed 3-24-09; 11:15 am]
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