[Federal Register: May 7, 2008 (Volume 73, Number 89)]
[Rules and Regulations]               
[Page 25562-25566]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr07my08-18]                         

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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Parts 101, 104, 105, and 106

46 CFR Parts 10, 12, and 15

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: United States Coast Guard, Transportation Security 
Administration; DHS.

ACTION: Final rule; extension of compliance date.

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SUMMARY: The Department of Homeland Security (DHS), through the United 
States Coast Guard (Coast Guard) and the Transportation Security 
Administration (TSA), issues this final rule to realign the compliance 
date set forth in the Transportation Worker Identification Credential 
(TWIC) final rule. Under the new final compliance date mariners must 
obtain a TWIC no later than April 15, 2009. This final rule also 
extends to April 15, 2009, the final date by which owners and operators 
of vessels, facilities, and outer continental shelf facilities, who 
have not otherwise been required to implement access control procedures 
utilizing TWIC on an earlier date, must implement those procedures.

DATES: This final rule is effective May 7, 2008.

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. You 
may also find this docket on the Internet at http://
www.regulations.gov.

FOR FURTHER INFORMATION CONTACT: If you have questions on the TSA 
portions

[[Page 25563]]

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. Background and 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 (NPRM) 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) (hereinafter referred to as the ``TWIC 
NPRM''). The TWIC NPRM proposed requirements related to the TWIC 
program, including compliance dates for mariners to obtain and possess 
a TWIC, and for vessels, facilities and outer continental shelf 
facilities to operate in accordance with TWIC provisions. Specifically, 
DHS proposed that vessels and facilities would be required to be in 
compliance with the requirements of a TWIC final rule between twelve 
(12) and eighteen (18) months following the publication date of the 
final rule, depending on whether enrollment for the port in which the 
vessel or facility is operating had been completed. 71 FR at 29409, 
29412.
    On January 25, 2007, after a 45-day comment period and four public 
meetings, the Coast Guard and TSA published a joint final rule under 
the same title (72 FR 3492) (hereinafter referred to as the ``TWIC 
joint final rule''). The TWIC joint final rule discussed the comments 
received on the proposed rule, including a discussion of all comments 
related to the proposed TWIC implementation timeline and the 
requirements for mariners, vessels, facilities and outer continental 
shelf facilities to comply with TWIC procedures. It also made changes 
to the rule text in response to those comments. The TWIC joint final 
rule, at 33 CFR 104.115, revised the compliance dates for vessel owners 
and operators to provide vessel owners or operators 20 months from the 
publication date of the final rule, up to and including September 25, 
2008, to implement the TWIC access control provisions. 72 FR 3492, 
3499. The rule tied the compliance date for facilities and outer 
continental shelf facilities to completion of the initial enrollment in 
the Captain of the Port (COTP) zone where the facility is located. See 
33 CFR 105.115 and 106.110. This date would vary for each COTP zone as 
announced by the Coast Guard through publication of a notice in the 
Federal Register. Under the final rule, the Coast Guard would publish 
these notices at least 90 days in advance of the compliance date, but 
the final compliance date for all COTPs would not be later than 
September 25, 2008. Finally, the latest date by which mariners would be 
expected to obtain and possess a TWIC, as set forth in 33 CFR 101.514, 
would also be September 25, 2008. 72 FR at 3499.

II. Discussion of Change

    With this final rule, DHS is realigning the deadline for final 
compliance with the requirements of the TWIC final rule to provide 18 
months from the date the initial enrollment centers became operational 
for regulated entities to come into compliance with the requirements of 
the TWIC final rule. As discussed above, when DHS set the final 
compliance date by the final rule published in January of 2007, the 
Coast Guard and TSA estimated that all TWIC enrollment centers would be 
operational within 18 months of the beginning of the enrollment 
rollout. See 72 FR at 3539. Accordingly, the Coast Guard and TSA set 
the final compliance date for vessels for 20 months after the 
publication date of the final rule to allow TSA two months to finalize 
a contract with the entity that would operate the enrollment centers, 
as well as to ensure that the underlying TWIC system could operate as 
intended. This schedule was intended to allow mariners and other 
regulated entities up to 18 months to enroll before the September 25, 
2008 compliance date.
    TSA contracted with Lockheed Martin to operate TWIC enrollment 
centers on January 29, 2007. The first TWIC enrollment center opened in 
Wilmington, Delaware on October 16, 2007. See 72 FR 57342 (Oct. 9, 
2007). Since that time, TSA has opened over 100 TWIC enrollment 
centers. TSA currently estimates that the final enrollment centers will 
be opened and operational in September of 2008. Because TSA did not 
open the initial enrollment centers until approximately six months 
after the initial estimated start date, TSA and Coast Guard have 
provided the additional time to allow for the full 18 months of 
enrollment intended under the TWIC final rule.
    Accordingly, to ensure that every individual who requires a TWIC 
will have the opportunity to enroll for one, and to ensure that TSA 
will have time to complete the security threat assessments on all 
applicants, DHS is extending the compliance date from September 25, 
2008 to April 15, 2009, to realign the final compliance date with the 
original intent of the TWIC final rule. Under this final rule, by no 
later than April 15, 2009, mariners must obtain a TWIC, and owners and 
operators of vessels, facilities, and outer continental shelf 
facilities, who have not otherwise been required to implement access 
control procedures utilizing TWIC, must implement those procedures. 
Owners and operators of facilities that must comply with 33 CFR part 
105 will still be subject to earlier, rolling compliance dates, as laid 
out in 33 CFR 105.115(e). As provided in that regulation, the Coast 
Guard will announce those dates at least 90 days in advance via notices 
published in the Federal Register. The final compliance date will not 
be later than April 15, 2009. In a separate notice published in today's 
edition of the Federal Register, we provide this notice for the first 
three COTP Zones: Boston, Northern New England, and Southeastern New 
England.
    The TWIC final rule also did not require that mariners obtain or 
possess a TWIC for access to secure areas of vessels, facilities, and 
OSC facilities until September 25, 2008. With this amendment, mariners 
holding a Merchant Mariner's License (License), Merchant Mariner's 
Document (MMD), Certificate of Registry, or an International Convention 
on Standards of Training, Certification and Watchkeeping for Seafarers 
(STCW) Endorsement, will not need to have a TWIC until April 15, 2009. 
Until that date, they may continue to use their mariner credentials, 
along with a photo ID, to gain unescorted access to facilities and 
vessels, per 33 CFR 101.514. Amendments in 46 CFR 10.113, 12.01-11, and 
15.415 will also reflect the date change to April 15, 2009. 
Additionally, owners and operators of vessels and outer continental 
shelf facilities regulated by 33 CFR parts 104 and 106, respectively, 
will not need to incorporate TWIC into their security measures for 
access control until April 15, 2009.
    Finally, the applicable dates for mariners wishing to purchase a 
reduced fee TWIC, by relying upon the security threat assessment done 
by the Coast Guard when they applied for their License or their MMD 
have been realigned to cover those mariners who obtain or renew their 
credential between September 25, 2008 and April 15, 2009.

[[Page 25564]]

    These amendments may be found at 33 CFR 101.514, 104.115, 105.115, 
106.110; 46 CR 10.113, 12.01-11, and 15.415; and 49 CFR 1572.19.

III. Regulatory Requirements

A. Administrative Procedure Act

    DHS is issuing this final rule, for immediate implementation, 
without providing the public prior notice and the opportunity for 
comment. Sections 553(b) and (d) of the Administrative Procedure Act 
(APA) (5 U.S.C. 553) authorize agencies to dispense with certain notice 
procedures for rules when they find good cause to do so. Under section 
553(b), the requirements of notice and opportunity for comment do not 
apply when the agency for good cause finds that those procedures are 
``impracticable, unnecessary, or contrary to the public interest.'' 
Section 553(d) allows an agency, upon finding good cause, to make a 
rule effective immediately upon publication in the Federal Register.
    Providing an opportunity for prior notice and public comment on the 
extensions of the compliance dates in the TWIC final rule would be 
unnecessary and contrary to the public interest. As discussed above, 
without the change in the full compliance date, it would not be 
possible for all regulated parties to comply with the TWIC regulations. 
Even if it were possible for all persons to enroll by the current 
compliance date (which, as noted above, is not realistically possible), 
it would not be possible for TSA to complete full security threat 
assessments on all of those individuals in advance of the September 25, 
2008 date.
    Further, because this final rule relieves a restriction by 
providing regulated entities more time to comply with the regulatory 
requirements, DHS finds that this rule shall become effective 
immediately upon publication of this final rule in the Federal 
Register. 5 U.S.C. 553(d).

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. This rule, therefore, is not 
subject to review by the Office of Management and Budget. We expect the 
economic impact of this rule to be minimal and a full regulatory 
analysis unnecessary.
    This rule realigns the final compliance date for implementing TWIC. 
To the extent that deadlines have changed, affected parties may incur 
some TWIC-related costs later rather than sooner.
    We anticipate that these changes will not substantially increase 
TWIC-related compliance costs to the affected entities and in most 
cases will provide advantages through deadline extensions.

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, as it realigns a deadline. 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 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 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).

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 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.

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 Executive Order 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 Executive Order 12988, Civil Justice Reform, to minimize litigation, 
eliminate ambiguity, and reduce burden.

J. 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.

K. 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.

L. 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

[[Page 25565]]

require a Statement of Energy Effects under Executive Order 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 Executive Orders and requirements. The changes being made by 
this final rule have no effect on the 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 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 categorical exclusions (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 104

    Incorporation by reference, Maritime security, Reporting and 
recordkeeping requirements, Security measures, Vessels.

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.

46 CFR Part 10

    Penalties, Reporting and recordkeeping requirements, Schools, 
Seamen.

46 CFR Part 12

    Penalties, Reporting and recordkeeping requirements, Seamen.

46 CFR Part 15

    Reporting and recordkeeping requirements, Seamen, Vessels.

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.

0
For the reasons discussed in the preamble, the Coast Guard amends 33 
CFR parts 101, 104, 105, and 106, and 46 CFR parts 10, 12, and 15 and 
the Transportation Security Administration amends 49 CFR part 1572 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.  101.514  [Revised]

0
2. Revise Sec.  101.514(e) by removing the date ``September 25, 2008'' 
and adding in its place the date ``April 15, 2009''.

PART 104--MARITIME SECURITY: VESSELS

0
3. The authority citation for part 104 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.


Sec.  104.115  [Revised]

0
4. Revise Sec.  104.115(d) by removing the date ``September 25, 2008'' 
and adding in its place the date ``April 15, 2009''.

PART 105--MARITIME SECURITY: FACILITIES

0
5. 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.


Sec.  105.115  [Revised]

0
6. Revise Sec.  105.115(e) by removing the date ``September 25, 2008'' 
and adding in its place the date ``April 15, 2009''.

PART 106--MARITIME SECURITY: OUTER CONTINENTAL SHELF (OCS) 
FACILITIES

0
7. 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.


Sec.  106.110  [Revised]

0
8. Revise Sec.  106.110(e) by removing the date ``September 25, 2008'' 
and adding in its place the date ``April 15, 2009''.

Title 46--Shipping

CHAPTER I--COAST GUARD

Subchapter B--Merchant Marine Officers and Seamen

PART 10--LICENSING OF MARITIME PERSONNEL

0
9. The authority citation for part 10 continues to read as follows:

    Authority: 14 U.S.C. 633; 31 U.S.C. 9701; 46 U.S.C. 2101, 2103, 
and 2110; 46 U.S.C. chapter 71; 46 U.S.C. 7502, 7505, 7701, and 
8906; Executive Order 10173; Department of Homeland Security 
Delegation No. 0170.1. Section 10.107 is also issued under the 
authority of 44 U.S.C. 3507.

[[Page 25566]]

Sec.  10.113  [Revised]

0
10. Revise Sec.  10.113 by removing the date ``September 25, 2008'' and 
adding in its place the date ``April 15, 2009''.

PART 12--CERTIFICATION OF SEAMEN

0
11. The authority citation for part 12 continues to read as follows:

    Authority: 31 U.S.C. 9701; 46 U.S.C. 2101, 2103, 2110, 7301, 
7302, 7503, 7505, 7701, and 70105; Department of Homeland Security 
Delegation No. 0170.1.


Sec.  12.01-11  [Revised]

0
12. Revise Sec.  12.01-11 by removing the date ``September 25, 2008'' 
and adding in its place the date ``April 15, 2009''.

PART 15--MANNING REQUIREMENTS

0
13. The authority citation for part 15 continues to read as follows:

    Authority: 46 U.S.C. 2101, 2103, 3306, 3703, 8101, 8102, 8104, 
8105, 8301, 8304, 8502, 8503, 8701, 8702, 8901, 8902, 8903, 8904, 
8905(b), 8906, 9102, and 8103; and Department of Homeland Security 
Delegation No. 0170.1.


Sec.  15.415  [Revised]

0
14. Revise Sec.  15.415 by removing the date ``September 25, 2008'' and 
adding in its place the date ``April 15, 2009''.

Title 49--Transportation

CHAPTER XII--TRANSPORTATION SECURITY ADMINISTRATION

Subchapter D--Maritime and Land Transportation Security

PART 1572--CREDENTIALING AND SECURITY THREAT ASSESSMENTS

0
15. 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.


Sec.  1572.19  [Revised]

0
16. Revise Sec.  1572.19(b) by removing the date ``September 25, 2008'' 
in the two places where it appears, and adding in each place the date 
``April 15, 2009''.

    Dated: May 2, 2008.
Brian M. Salerno,
Rear Admiral, U.S. Coast Guard, Assistant Commandant for Marine Safety, 
Security & Stewardship.
Gale Rossides,
Deputy Administrator, Transportation Security Administration.
 [FR Doc. E8-10232 Filed 5-6-08; 8:45 am]

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