Department of Homeland Security by chenmeixiu

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                                                                                                                              January 25, 2007

                                                                                                                              Part II

                                                                                                                              Department of
                                                                                                                              Homeland Security
                                                                                                                              Coast Guard

                                                                                                                              33 CFR Parts 1, 20 et al. and 46 CFR
                                                                                                                              Parts 1, 4 et al.

                                                                                                                              Transportation Security Administration

                                                                                                                              49 CFR Parts 10, 12, and 15
                                                                                                                              Transportation Worker Identification
                                                                                                                              Credential (TWIC) Implementation in the
                                                                                                                              Maritime Sector; Final Rule
                                                                                                                              Consolidation of Merchant Mariner
                                                                                                                              Qualification Credentials; Proposed Rule
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                                        3492             Federal Register / Vol. 72, No. 16 / Thursday, January 25, 2007 / Rules and Regulations

                                        DEPARTMENT OF HOMELAND                                  Coast Guard also amends its merchant                   Technology (NIST), is tasked with
                                        SECURITY                                                mariner regulations to incorporate the                 recommending the contactless biometric
                                                                                                requirement to obtain a TWIC. This final               software specification for TWIC cards.
                                        Coast Guard                                             rule does not include the card reader                     TSA will publish a notice detailing
                                                                                                requirements for owners and operators                  the draft contactless biometric software
                                        33 CFR Parts 101, 103, 104, 105, 106,                   set forth in the Notice of Proposed                    specification for TWIC cards no later
                                        125 and 46 CFR Parts 10, 12, 15                         Rulemaking (NPRM) issued in this                       than the date by which it publishes the
                                        Transportation Security Administration                  matter on May 22, 2006. Such                           final TWIC fee as required by this Rule.
                                        49 CFR Parts 1515, 1540, 1570, 1572                     requirements will be addressed in a                    Currently those notices are expected to
                                        [Docket Nos. TSA–2006–24191; Coast                      future rulemaking. Although the card                   be published in February 2007. TSA
                                        Guard–2006–24196; TSA Amendment                         reader requirements are not being                      will subsequently publish a final
                                        Nos. 1515–(New), 1540–8, 1570–2,                        implemented at this time, the Coast                    specification for TWIC contactless
                                        1572–7]                                                 Guard will institute periodic                          biometric software functionality and the
                                        RIN 1652–AA41                                           unannounced checks to confirm the                      associated specifications for TWIC card
                                                                                                identity of the holder of the TWIC.                    readers. TSA plans also to write
                                        Transportation Worker Identification                       With this final rule, TSA applies its               electronically the contactless biometric
                                        Credential (TWIC) Implementation in                     security threat assessment standards                   software application to all issued TWIC
                                        the Maritime Sector; Hazardous                          that currently apply to commercial                     cards after publication of this
                                        Materials Endorsement for a                             drivers authorized to transport                        specification. After initial field testing,
                                        Commercial Driver’s License                             hazardous materials in commerce to                     this additional contactless biometric
                                                                                                merchant mariners and workers who                      function will be included with all TWIC
                                        AGENCY:  Transportation Security                        require unescorted access to secure                    cards produced after publication of the
                                        Administration; United States Coast                     areas on vessels and at maritime                       contactless biometric software
                                        Guard, DHS.                                             facilities. This final rule amends TSA                 specification.
                                        ACTION: Final rule; request for                         regulations in a number of ways. To
                                                                                                                                                          Although this rule goes into effect on
                                        comments.                                               minimize redundant background checks
                                                                                                                                                       March 26, 2007, the requirements to
                                                                                                of workers, TSA amends the threat
                                        SUMMARY: The Department of Homeland                                                                            hold a TWIC, and to restrict access to
                                                                                                assessment standards to include a
                                        Security (DHS), through the                                                                                    secure areas of a facility or OCS facility,
                                                                                                process by which TSA determines if a
                                        Transportation Security Administration                                                                         will be effective only after the regulated
                                                                                                security threat assessment conducted by
                                        (TSA) and the United States Coast                                                                              party is notified by DHS. These
                                                                                                another governmental agency or by TSA
                                        Guard (Coast Guard), issues this final                                                                         notifications will be published in the
                                                                                                for another program is comparable to
                                        rule to further secure our Nation’s ports                                                                      Federal Register and will require
                                                                                                the standards in this rule. TSA amends
                                        and modes of transportation. This rule                  the qualification standards by changing                compliance on a COTP by COTP basis.
                                        implements the Maritime                                 the list of crimes that disqualify an                  Those seeking unescorted access to
                                        Transportation Security Act of 2002 and                 individual from holding a TWIC or a                    secure areas aboard affected vessels, and
                                        the Security and Accountability for                     hazardous materials endorsement.                       all Coast Guard credentialed merchant
                                        Every Port Act of 2006. Those statutes                     TSA expands the appeal and waiver                   mariners must possess a TWIC by
                                        establish requirements regarding the                    provisions to apply to TWIC applicants                 September 25, 2008.
                                        promulgation of regulations that require                and air cargo employees who undergo a                  DATES: Effective Date: This rule is
                                        credentialed merchant mariners and                      security threat assessment. These                      effective March 26, 2007.
                                        workers with unescorted access to                       modifications include a process for the                   Comment Date: Comments with
                                        secure areas of vessels and facilities to               review of adverse waiver decisions and                 respect to the Card Replacement Fee
                                        undergo a security threat assessment                    certain disqualification cases by an                   must be submitted by February 26,
                                        and receive a biometric credential,                     administrative law judge (ALJ). TSA                    2007.
                                        known as a Transportation Worker                        also extends the time period in which
                                        Identification Credential (TWIC). After                 applicants may apply for an appeal or                  ADDRESSES:   Comments and material
                                        DHS publishes a notice announcing the                   waiver.                                                received from the public, as well as
                                        compliance date for each Captain of the                    Finally, this rule establishes the user             documents mentioned in this preamble
                                        Port (COTP) zone, persons without                       fee for the TWIC and invites comment                   as being available in the docket, are part
                                        TWICs will not be granted unescorted                    on one component of the fee, the card                  of dockets TSA–2006–24191 and Coast
                                        access to secure areas at affected                      replacement fee.                                       Guard–2006–24196 and are available for
                                        maritime facilities. Those seeking                         Under this rule, TSA will begin                     inspection or copying at the Docket
                                        unescorted access to secure areas aboard                issuing first generation TWIC cards at                 Management Facility, U.S. Department
                                        affected vessels, and all Coast Guard                   initial port deployment locations. These               of Transportation, room PL–401, 400
                                        credentialed merchant mariners must                     TWIC cards will not initially support                  Seventh Street SW., Washington, DC,
                                        possess a TWIC by September 25, 2008.                   contactless biometric operations, but the              between 9 a.m. and 5 p.m., Monday
                                        This final rule will enhance the security               TWIC cards will be functional with                     through Friday, except Federal holidays.
                                        of ports by requiring such security                     certain existing access control systems                You may also find this docket on the
                                        threat assessments of persons in secure                 in use at ports today.                                 Internet at
                                        areas and by improving access control                      TSA and the Coast Guard have                          You may submit comments identified
                                        measures to prevent those who may                       established a working group, comprised                 by docket number TSA–2006–24191 to
                                        pose a security threat from gaining                     of members of the maritime and                         the Docket Management Facility at the
                                        unescorted access to secure areas of                    technology industries, through the                     U.S. Department of Transportation. To
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                                        ports.                                                  National Maritime Security Advisory                    avoid duplication, please use only one
                                           With this final rule, the Coast Guard                Committee (NMSAC), a federal advisory                  of the following methods:
                                        amends its regulations on vessel and                    committee to the Coast Guard. This                       (1) Web Site:
                                        facility security to require the use of the             working group, in consultation with the                  (2) Mail: Docket Management Facility,
                                        TWIC as an access control measure. The                  National Institute for Standards and                   U.S. Department of Transportation, 400

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                                                         Federal Register / Vol. 72, No. 16 / Thursday, January 25, 2007 / Rules and Regulations                                            3493

                                        Seventh Street SW., Room PL–401,                        include with your comments a self-                      19477), or you may visit http://
                                        Washington, DC 20590–0001.                              addressed, stamped postcard on which          
                                          (3) Fax: 202–493–2251.                                the docket number appears. We will                         You may review the comments in the
                                          (4) Delivery: Room PL–401 on the                      stamp the date on the postcard and mail                 public docket by visiting the Dockets
                                        Plaza level of the Nassif Building, 400                 it to you.                                              Office between 9 a.m. and 5 p.m.,
                                        Seventh Street SW., Washington, DC,                        TSA will file in the public docket all               Monday through Friday, except Federal
                                        between 9 a.m. and 5 p.m., Monday                       comments received by TSA, except for                    holidays. The Dockets Office is located
                                        through Friday, except Federal holidays.                comments containing confidential                        on the plaza level of the Nassif Building
                                        The telephone number is 202–366–                        information and sensitive security                      at the Department of Transportation
                                        9329.                                                   information (SSI)1, TSA will consider                   address, previously provided under
                                          (5) Federal eRulemaking Portal:                       all comments received on or before the                  ADDRESSES. Also, you may review
                                                           closing date for comments and will                      public dockets on the Internet at http://
                                          See SUPPLEMENTARY INFORMATION for                     consider comments filed late to the           
                                        format and other information about                      extent practicable. The docket is
                                                                                                                                                        Availability of Rulemaking Document
                                        comment submissions.                                    available for public inspection before
                                        FOR FURTHER INFORMATION CONTACT: For                    and after the comment closing date.                        You can get an electronic copy of this
                                        questions related to TSA’s standards:                                                                           document as well as other documents
                                                                                                Handling of Confidential or Proprietary                 associated with this rulemaking on the
                                        Greg Fisher, Transportation Security                    Information and Sensitive Security
                                        Administration, TSA–19, 601 South                                                                               Internet by—
                                                                                                Information (SSI) Submitted in Public                      (1) Searching the Department of
                                        12th Street, Arlington, VA 22202–4220,                  Comments
                                        TWIC Program, (571) 227–4545; e-mail:                                                                           Transportation’s electronic Docket
                                                                   Do not submit comments that include                  Management System (DMS) web page
                                          For legal questions: Christine Beyer,                 trade secrets, confidential commercial                  (;
                                        TSA–2, Transportation Security                          or financial information, or SSI to the                    (2) Accessing the Government
                                        Administration, 601 South 12th Street,                  public regulatory docket. Please submit                 Printing Office’s web page at http://
                                        Arlington, VA 22202–4220; telephone                     such comments separately from other           ; or
                                        (571) 227–2657; facsimile (571) 227–                    comments on the rulemaking.                                (3) Visiting TSA’s Security
                                        1380; e-mail                   Comments containing this type of                        Regulations web page at http://
                                          For questions concerning the Coast                    information should be appropriately            and accessing the link for
                                        Guard provisions of the TWIC rule:                      marked as containing such information                   ‘‘Research Center’’ at the top of the page.
                                        LCDR Jonathan Maiorine, Commandant                      and submitted by mail to the address
                                                                                                                                                        Abbreviations and Terms Used in This
                                        (G–PCP–2), United States Coast Guard,                   listed in the FOR FURTHER INFORMATION
                                        2100 Second Street, SW., Washington,                    CONTACT section. Upon receipt of such
                                        DC 20593; telephone 1–877–687–2243.                     comments, TSA will not place the                        ALJ—Administrative Law Judge
                                                                                                comments in the public docket and will                  AMS—Area Maritime Security
                                          For questions concerning viewing or
                                                                                                handle them in accordance with                          ASP—Alternative Security Program
                                        submitting material to the docket: Renee
                                                                                                applicable safeguards and restrictions                  CBP—Bureau of Customs and Border
                                        V. Wright, Program Manager, Docket
                                                                                                on access. TSA will hold them in a                        Protection
                                        Management System, U.S. Department
                                                                                                separate file to which the public does                  CDC—Certain Dangerous Cargo
                                        of Transportation, Room Plaza 401, 400
                                                                                                not have access, and place a note in the                CDL—Commercial drivers license
                                        Seventh Street, SW., Washington, DC                                                                             CDLIS—Commercial drivers license
                                        20590–0001; telephone (202) 493–0402.                   public docket that TSA has received
                                                                                                such materials from the commenter. If                     information system
                                        SUPPLEMENTARY INFORMATION:                                                                                      CHRC—Criminal history records check
                                                                                                TSA receives a request to examine or
                                        Comments Invited                                        copy this information, TSA will treat it                CJIS—Criminal Justice Information
                                                                                                as any other request under the Freedom                    Services Division
                                          TSA invites comment on one                                                                                    COR—Certificate of Registry
                                        provision of the rule, the Card                         of Information Act (FOIA) (5 U.S.C. 552)
                                                                                                and the Department of Homeland                          COTP—Captain of the Port
                                        Replacement Fee, as discussed in                                                                                DHS—Department of Homeland
                                        section I under Fees and section VI of                  Security’s (DHS’s) FOIA regulation
                                                                                                found in 6 CFR part 5.                                    Security
                                        this preamble. See ADDRESSES above for                                                                          DOJ—Department of Justice
                                        information on where to submit                          Reviewing Comments in the Docket                        DOT—Department of Transportation
                                        comments. With each comment, please                       Please be aware that anyone is able to                FBI—Federal Bureau of Investigation
                                        include your name and address, identify                 search the electronic form of all                       FMCSA—Federal Motor Carrier Safety
                                        the docket number at the beginning of                   comments received into any of our                         Administration
                                        your comments, and give the reason for                  dockets by the name of the individual                   FMSC—Federal Maritime Security
                                        each comment. Please explain the                        submitting the comment (or signing the                    Coordinator
                                        reason for any recommended change                       comment, if submitted on behalf of an                   FSP—Facility Security Plan
                                        and include supporting data. You may                    association, business, labor union, etc.).              HME—Hazardous materials
                                        submit comments and material                            You may review the applicable Privacy                     endorsement
                                        electronically, in person, by mail, or fax              Act Statement published in the Federal                  HSA—Homeland Security Act
                                        as provided under ADDRESSES, but                        Register on April 11, 2000 (65 FR                       HSPD 12—Homeland Security
                                        please submit your comments and                                                                                   Presidential Directive 12
                                        material by only one means. If you                         1 ‘‘Sensitive Security Information’’ or ‘‘SSI’’ is   MARSEC—Maritime Security
                                        submit comments by mail or delivery,                    information obtained or developed in the conduct        MMD—Merchant Mariner’s Document
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                                        submit them in an unbound format, no                    of security activities, the disclsoure of which would   MSC—Marine Safety Center
                                        larger than 8.5 by 11 inches, suitable for              constitute an unwarranted invasion of privacy,          MTSA—Maritime Transportation
                                                                                                reveal trade secrets or privileged or confidential
                                        copying and electronic filing.                          information, or be detrimental to the security of
                                                                                                                                                          Security Act
                                          If you want TSA to acknowledge                        transportation. The protection of SSI is governed by    NIST—National Institute of Standards
                                        receipt of comments submitted by mail,                  49 CFR part 1520.                                         and Technology

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                                        3494             Federal Register / Vol. 72, No. 16 / Thursday, January 25, 2007 / Rules and Regulations

                                        NPRM—Notice of Proposed Rulemaking                        B. Small Entities                                    intends for these combined changes to
                                        NVIC—Navigation and Vessel                                C. Assistance for Small Entities                     increase port security by requiring all
                                          Inspection Circular                                     D. Collection of Information                         credentialed mariners and all persons
                                        OCS—Outer Continental Shelf                               E. Federalism (Executive Order 13132)
                                                                                                                                                       who require unescorted access to a
                                        REC—Regional Examination Center                           F. Unfunded Mandates Reform Act
                                                                                                  G. Taking of Private Property                        regulated facility or vessel to have
                                        SAFETEA–LU—Safe, Accountable,                                                                                  undergone a security threat assessment
                                                                                                  H. Civil Justice Reform
                                          Flexible, Efficient Transportation                      I. Protection of Children                            by TSA and obtain a TWIC.2 The
                                          Equity Act—A Legacy for Users                           J. Indian Tribal Governments                         proposed security threat assessment
                                        STCW—International Convention on                          K. Energy Effects                                    included a review of criminal,
                                          Standards of Training, Certification,                   L. Technical Standards                               immigration, and pertinent intelligence
                                          and Watchkeeping for Seafarers, 1978,                   M. Environment                                       records. TSA also proposed a process
                                          as amended                                            VI. Solicitation of Comments
                                                                                                                                                       for individuals denied TWICs to appeal
                                        TSA—Transportation Security                             I. Background                                          adverse determinations or apply for
                                          Administration                                                                                               waivers of the standards.
                                        TPS—Temporary Protected Status                             The Department of Homeland
                                                                                                                                                          Prior to the publication of the TWIC
                                        TWIC—Transportation Worker                              Security (DHS), through the United
                                                                                                                                                       NPRM, the Coast Guard published a
                                          Identification Credential                             States Coast Guard (Coast Guard) and
                                                                                                                                                       Notice in the Federal Register informing
                                        VSP—Vessel Security Plan                                the Transportation Security
                                                                                                                                                       the public that the Commandant of the
                                        Table of Contents                                       Administration (TSA), issues this final
                                                                                                                                                       Coast Guard, pursuant to his authority
                                                                                                rule pursuant to the Maritime
                                        I. Background                                                                                                  under 50 U.S.C. 191 and 33 CFR part
                                                                                                Transportation Security Act (MTSA),
                                        II. Final Rule                                                                                                 125, was exercising his authority to
                                           A. Coast Guard Provisions                            Pub. L. 107–295, 116 Stat. 2064
                                                                                                                                                       require identification credentials for
                                           B. TSA Provisions                                    (November 25, 2002), and the Security
                                                                                                                                                       persons seeking access to waterfront
                                           C. Changes From NPRM                                 and Accountability for Every Port Act of
                                                                                                                                                       facilities and to port and harbor areas,
                                           D. Anticipated Future Notices and                    2006 (SAFE Port Act), Pub. L. 109–347
                                              Rulemaking                                                                                               including vessels and harbor craft in
                                                                                                (October 13, 2006). Section 102 of
                                           E. Summary of TWIC Process under the                                                                        such areas. 71 FR 25066 (April 28,
                                                                                                MTSA (46 U.S.C. 70105) requires DHS
                                              Final Rule                                                                                               2006). This action has served as an
                                                                                                to issue regulations to prevent
                                           F. SAFE Port Act of 2006                                                                                    interim measure to improve security at
                                                                                                individuals from entering secure areas
                                        III. Discussion of Comments                                                                                    our nation’s ports by verifying maritime
                                           A. Requests for Extension of Comment                 of vessels or MTSA-regulated port
                                                                                                                                                       workers’ identities, validating their
                                              Period and Additional Public Meetings             facilities unless such individuals hold
                                                                                                                                                       background information, and
                                           B. Coast Guard Provisions                            transportation security cards issued
                                                                                                                                                       accounting for access for authorized
                                           1. Definitions                                       under section 102 and are authorized to
                                                                                                                                                       personnel to transportation facilities,
                                           2. General Comments on Applicability                 be in the secure areas. An individual
                                           3. Coast Guard Roles                                                                                        vessels and activities. Id.
                                                                                                who does not hold the required                            The May 22, 2006 TWIC NPRM
                                           4. Owner/operator Requirements                       transportation security card, but who is
                                           5. Requirements for Security Officers and                                                                   provided the draft regulatory text for
                                                                                                otherwise authorized to be in the secure               review and solicited public comments
                                           6. Recordkeeping/Tracking Persons on                 area in accordance with the facility’s                 for 45 days. TSA and the Coast Guard
                                              Vessels/Security Incident Procedures              security plan, must be accompanied by                  also held four public meetings
                                           7. Reader Requirements/Biometric                     another individual who holds a                         throughout the country to solicit public
                                              Verification/TWIC Validation Procedures           transportation security card. MTSA also                comments. Those meetings were held
                                           8. Access Control Issues                             requires all credentialed merchant                     on May 31, 2006 in Newark, New Jersey;
                                           9. TWIC Addendum                                     mariners to hold these transportation
                                           10. Compliance Dates                                                                                        on June 1, 2006 in Tampa, Florida; on
                                                                                                security cards, and requires DHS to                    June 6, 2006 in St. Louis, Missouri; and
                                           11. General Compliance Issues                        establish a waiver and appeals process
                                           12. Additional Requirements—Cruise                                                                          on June 7, 2006 in Long Beach,
                                                                                                for persons found to be ineligible for the             California. Approximately 1200 people
                                           13. Additional Requirements—Cruise Ship              required transportation security card.                 attended these meetings. The public can
                                              Terminals                                         The SAFE Port Act contained                            view transcripts of the four public
                                           14. Additional Requirements—CDC                      amendments to the basic MTSA                           meetings on the public docket for this
                                              Facilities                                        requirements for credentialing                         rulemaking action at
                                           15. Additional Requirements—Barge                    (concurrent processing, fees, card
                                              Fleeting Facilities                                                                             DHS also received
                                                                                                readers, program roll out, testing and                 approximately 1770 written comments
                                           16. Miscellaneous                                    timelines) as well as added new
                                           C. TSA Provisions                                                                                           on the TWIC NPRM. Those comments
                                                                                                requirements (disqualifying crimes, new                also can be accessed through the public
                                           1. Technology Concerns
                                           2. Enrollment Issues
                                                                                                hire provisions and discretion as to who               docket for this action. TSA and the
                                           3. Appeal and Waiver Issues                          may obtain a TWIC). The substance of                   Coast Guard respond to the comments
                                           4. TSA Inspection                                    the SAFE Port Act is discussed in                      received in the ‘‘Discussion of
                                           5. Security Threat Assessment                        greater detail later in this document.                 Comments’’ section, below.
                                           6. Immigration Status                                   On May 22, 2006, TSA and the Coast                     Many commenters requested an
                                           7. Mental Incapacity                                 Guard issued a joint notice of proposed                extension of the comment period and
                                           8. TWIC Expiration and Renewal Periods               rulemaking (71 FR 29396), setting forth
                                           9. Fees for TWIC                                                                                            additional public meetings. As
                                                                                                the proposed requirements and                          explained more fully in the ‘‘Discussion
                                           10. Implementing TWIC in Other Modes                 processes required under sec. 102 of
                                           D. Comments Relating to Economic Issues                                                                     of Comments’’ section below, DHS has
                                                                                                MTSA (TWIC NPRM) for                                   decided not to delay implementation of
                                           E. Comments Beyond the Scope of the Rule
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                                        IV. Advisory Committee Recommendations
                                                                                                implementation of the TWIC program in                  the TWIC program by extending the
                                              and Responses                                     the maritime sector. The NPRM
                                        V. Rulemaking Analyses and Notices                      proposed changes to three titles of TSA                  2 Additional information on the statutory and
                                           A. Regulatory Planning and Review                    and Coast Guard regulations (33 CFR, 46                regulatory history of this rule can be found in the
                                              (Executive Order 12866)                           CFR, and 49 CFR). The Department                       NPRM at 71 FR 29396 (May 22, 2006).

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                                                              Federal Register / Vol. 72, No. 16 / Thursday, January 25, 2007 / Rules and Regulations                                                           3495

                                        comment period or providing additional                             Guard to receive comments on the MMC                           TWIC and pay a fee of $107–$159 to
                                        public meetings because it is imperative                           NPRM. In a separate rulemaking action                          cover all costs associated with the TWIC
                                        to begin implementation of the TWIC                                published elsewhere in this edition of                         program. A TWIC applicant must
                                        requirements, and accompanying                                     the Federal Register, the Coast Guard                          complete a TSA security threat
                                        security threat assessments, as soon as                            has provided a Supplemental Notice of                          assessment and will be disqualified
                                        possible to improve the security of our                            Proposed Rulemaking (SNPRM) also                               from obtaining a TWIC if he or she has
                                        Nation’s vessels and port facilities. TSA                          entitled ‘‘Consolidation of Merchant                           been convicted or incarcerated for
                                        and Coast Guard, however, have not                                 Mariner Qualification Credentials.’’ The                       certain crimes within prescribed time
                                        promulgated in this final rule the                                 purpose of the SNPRM is to address                             periods, lacks legal presence and/or
                                        proposed requirements on owners and                                comments received from the public on                           authorization to work in the United
                                        operators relating to biometric readers.                           the MMC NPRM, revise the proposed                              States, has a connection to terrorist
                                        The Department will address those                                  rule based on those comments, and
                                        proposed requirements, which                                                                                                      activity, or has been determined to lack
                                                                                                           provide the public with an additional
                                        generated the majority of the comments                                                                                            mental capacity.
                                                                                                           opportunity to comment on the revised
                                        received on the NPRM, in a separate                                rulemaking. If it becomes final, the                              All applicants have the opportunity to
                                        rulemaking action. Interested parties                              MMC rulemaking is not expected to go                           appeal a disqualification, and may
                                        will have the opportunity to comment                               into effect until the initial TWIC roll out                    apply to TSA for a waiver if disqualified
                                        on those provisions during that                                    is complete. This time lapse will not                          for certain crimes or mental incapacity,
                                        rulemaking action. Although the card                               cause a detrimental effect on security, as                     or are aliens in Temporary Protected
                                        reader requirements are not being                                  all credentialed mariners will still need                      Status (TPS). Applicants who seek a
                                        implemented under this final rule, Coast                           to comply with the TWIC requirements                           waiver and are denied may seek review
                                        Guard personnel will periodically, and                             and compliance deadlines set forth in                          by an administrative law judge (ALJ). In
                                        without advance notice, use handheld                               this final rule.                                               addition, applicants who are
                                        readers to check the biometric                                                                                                    disqualified under § 1572.107 may seek
                                        information contained in the card to                               II. Final Rule
                                                                                                                                                                          ALJ review of the disqualification.
                                        confirm the identity of the holder of the                             Under this final rule, DHS, through
                                        TWIC.                                                              the Coast Guard and TSA, requires all                             A security threat assessment is valid
                                           On May 22, 2006, the Coast Guard                                credentialed merchant mariners and                             for five years. Therefore, in most cases,
                                        also published a related proposed rule,                            individuals with unescorted access to                          a TWIC is valid for five years unless a
                                        ‘‘Consolidation of Merchant Mariner                                secure areas of a regulated facility or                        disqualifying event occurs. If an
                                        Qualification Credentials,’’ at 71 FR                              vessel to obtain a Transportation Worker                       applicant obtains a TWIC based on a
                                        29462 (MMC NPRM), proposing the                                    Identification Credential (TWIC).                              comparable threat assessment under
                                        consolidation of Coast Guard-issued                                                                                               § 1572.5(e), the TWIC will expire five
                                        merchant mariner’s document (MMD),                                 A. Coast Guard Provisions
                                                                                                                                                                          years from the date on the credential
                                        merchant mariner’s license (license),                                Owners/operators of MTSA-regulated                           associated with the comparable threat
                                        certificate of registry (COR) and                                  vessels, facilities, and Outer Continental                     assessment. To renew a TWIC, the
                                        International Convention on Standards                              Shelf (OCS) facilities will need to                            renewal applicant must provide new
                                        of Training, Certification, and                                    change their existing access control                           biographic and biometric information,
                                        Watchkeeping for Seafarers (STCW)                                  procedures to ensure that merchant                             complete a new threat assessment, and
                                        certificate into a single credential called                        mariners and any other individual                              pay the fee to renew the credential.
                                        the merchant mariner credential (MMC).                             seeking unescorted access to a secure
                                        The MMC NPRM proposed to                                           area of their vessel or facility has a                         C. Changes From NPRM
                                        streamline the application process, and                            TWIC.
                                        reduce the administrative burden for the                                                                                            Each of the changes made from the
                                        public and the Federal Government. The                             B. TSA Provisions                                              NPRM to the final rule is summarized
                                        public meetings held on the TWIC                                     Workers must provide biographic and                          in Table 1 and discussed in detail
                                        NPRM also included time for the Coast                              biometric information to apply for a                           following the table.

                                                       TABLE 1.—SUMMARY OF SIGNIFICANT CHANGES BETWEEN MAY 22, 2006 NPRM AND THIS FINAL RULE
                                                             Topic                                              NPRM                                                              Final rule

                                        Access control .................................     Visual identity badge and reader                    Visual identity badge; Coast Guard will conduct periodic checks of bi-
                                                                                               (with biometric verification and                    ometric and validity (second rule for reader requirements).
                                                                                               validity check at facility/vessel
                                                                                               based on MARSEC level).
                                        Escorted access ..............................       Definition only ................................    Definition modified to clarify that in restricted areas (33 CFR
                                                                                                                                                   101.105), ‘‘escort’’ means a side-by-side escort; outside restricted
                                                                                                                                                   areas, ‘‘escort’’ may consist of monitoring.
                                        New hires ........................................   Not granted unescorted access to                    Permitted to have limited access for 30 consecutive days if accom-
                                                                                               secure areas until successful                       panied by TWIC-holder and additional requirements are met.
                                                                                               completion of security threat as-
                                                                                               sessment and card issuance.
                                        Passenger access area ...................            Defined only for certain vessels Passenger access area remains and employee access area for cer-
                                                                                               (passenger, ferries, cruise ships).                tain vessels added (employee access areas do not apply to cruise
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                                        TWIC Addendum and record-                            Included ......................................... Excluded.
                                          keeping requirements.
                                        Secure area .....................................    Definition only ................................    Clarified definition’s meaning in preamble, and revised part 105 to
                                                                                                                                                   allow part 105 facilities to submit FSP amendment to change ac-
                                                                                                                                                   cess control area.

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                                             TABLE 1.—SUMMARY OF SIGNIFICANT CHANGES BETWEEN MAY 22, 2006 NPRM AND THIS FINAL RULE—Continued
                                                              Topic                                                  NPRM                                                                Final rule

                                        Lost/Stolen/Damaged cards ............                   Access procedures defined in                           Specific requirements included in regulation.
                                                                                                   TWIC Addendum.
                                        AMS Committee members ..............                     Need TWIC ....................................         Need name-based check or a TWIC.
                                        Vessels in foreign waters ................               No special provisions ....................             Changed secure area definition to state that at certain specified
                                                                                                                                                          times, U.S. vessels may not have any secure areas.
                                        Emergency responders ...................                 Not specifically addressed ............                Not required to obtain a TWIC for emergency response.
                                        Voluntary compliance ......................              Offered ...........................................    Not offered.
                                        Compliance dates ............................            12–18 months after final rule ........                 Phased for facilities by each COTP zone. All mariners and vessels
                                                                                                                                                          20 months after the publication date of this final rule.
                                        Disqualifying crimes ........................            Same as those used for HME .......                     Amended; new list will apply for both TWIC and HME.
                                        Administrative law judge (ALJ) re-                       Not included ..................................        May be used for waiver denials and disqualifications under
                                          view.                                                                                                           § 1572.107.
                                        Immigration standards .....................              Limited ability for non-U.S. citizens                  Expanded to cover foreign maritime students, and certain profes-
                                                                                                   to obtain TWICs.                                       sionals and specialists on restricted visas; permitting aliens in TPS
                                                                                                                                                          to apply for a waiver.
                                        Mental incapacity .............................          Could only be waived by showing                        Waiver broadened to allow for ‘‘case-by-case’’ determinations.
                                                                                                   court order or letter from institu-
                                        Fee ..................................................   $95–$149; card replacement fee                         $107–$159; card replacement fee $36, but requesting comment on
                                                                                                   $36.                                                   increasing this fee to $60.

                                        1. Changes From Coast Guard’s                                           (a). Reader Requirements                                         (b). ‘‘Escorting’’/’’Unescorted Access’’
                                        Proposed Rule                                                                                                                               We have amended the definition of
                                                                                                                   After reviewing the comments (which
                                           Coast Guard is changing several                                      are summarized below), we determined                             escorted access to clarify our intent.
                                        sections of the proposed rule as a result                                                                                                Namely, that the distinction between
                                                                                                                that implementing the reader
                                        of comments received and additional                                                                                                      escort and unescorted access are to
                                        analysis. These changes include: (1)                                    requirements as envisioned in the                                serve as performance standards, rather
                                        Changing the access control procedures                                  NPRM would not be prudent at this                                than strict definitions. We expect that,
                                        to be used with TWICs by removing the                                   time. As such, we have removed the                               when in an area defined as a restricted
                                        reader requirements; (2) revising and                                   reader requirements from the final rule,                         area in a vessel or facility security plan,
                                        clarifying the definition of the term                                   and will be issuing a subsequent NPRM                            escorting will mean a live, physical
                                        ‘‘escorting;’’ (3) adding provisions                                    to address these requirements. That                              side-by-side escort. Whether it must be
                                        allowing for access for individuals who                                 NPRM will address many of the                                    a one-to-one escort, or whether there
                                        are new hires and who have applied for,                                 comments and concerns regarding                                  can be one escort for multiple persons,
                                        but not yet received, a TWIC; (4) adding                                technology that were raised in the                               will depend on the specifics of each
                                        a provision to allow for limited,                                       below-summarized comments. We will,                              vessel and/or facility. We will provide
                                        continued unescorted access for those                                   however, continue to require the use of                          additional guidance on what these
                                        individuals who report their TWIC as                                    the TWIC. As stated in the NPRM, there                           specifics might be in a Navigation and
                                        lost, damaged, or stolen; (5) adding a                                  are considerable security benefits to be                         Vessel Inspection Circular (NVIC).
                                        provision to create ‘‘employee access                                   gained from a TWIC, even in the                                  Outside of restricted areas, however,
                                        areas’’ aboard passenger vessels and                                    absence of reader usage. The TWIC                                side-by-side escorting is not required, so
                                        ferries; (6) removing the proposed                                      provides greater reliability than existing                       long as the method of surveillance or
                                        requirement to submit a TWIC                                            visual identity badge systems because it                         monitoring is sufficient to allow for a
                                        Addendum and keep additional records                                    presents a uniform appearance with                               quick response should an individual
                                        regarding who has been granted access                                                                                                    ‘‘under escort’’ be found in an area
                                                                                                                embedded features on the face of the
                                        privileges; (7) adding a provision to                                                                                                    where he or she has not been authorized
                                                                                                                credential that make it difficult to forge
                                        allow certain facilities to designate                                                                                                    to go or is engaging in activities other
                                        smaller portions of their property as                                   or alter. When presented with a TWIC,
                                                                                                                security personnel familiar with its                             than those for which escorted access
                                        their secure area via an amendment to                                                                                                    was granted. Again, we will provide
                                        their facility security plan; (8) removing                              security features are immediately able to
                                                                                                                                                                                 additional guidance with more specifics
                                        the proposed requirement for all AMS                                    notice any absence or destruction of
                                                                                                                                                                                 in a NVIC.
                                        Committee members to hold a TWIC; (9)                                   these features, making it less likely that
                                        changing the definition of secure area to                               an individual will be able to gain                               (c). New Hires
                                        state that, at certain times, U.S. vessels                              unescorted access to secure areas using                             We have added a new section within
                                        may not have any secure areas; (10)                                     a forged or altered TWIC. Additionally,                          parts 104, 105, and 106 to provide
                                        adding a provision to allow emergency                                   the Coast Guard will conduct                                     owners/operators with the ability to put
                                        responders to have unescorted access                                    unannounced checks of the cards while                            new hires to work once new hires have
                                        without a TWIC during emergency                                         visiting facilities and vessels. The Coast                       applied for their TWIC and an initial
                                        situations; (11) removing the provision                                 Guard will use handheld readers to                               name-based check is completed. In
                                        allowing for voluntary compliance for                                   check the biometrics on the card against                         order to ensure adequate security for the
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                                        those vessels and facilities not                                        the person presenting the card. These                            vessel and facility during this period,
                                        otherwise required to implement the                                     unannounced checks are an important                              these provisions allow new hires to
                                        TWIC requirements; and (12) revising                                    component of the security efforts at the                         have access to secure areas for up to 30
                                        the compliance dates for owners/                                        ports.                                                           consecutive days, so long as they pass
                                        operators of vessels and facilities.                                                                                                     a TSA name based check and are

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                                        accompanied by another employee with                    Officer (FSO) must not have been                       enrollment, payment, and that the new
                                        a TWIC. If TSA does not act upon a                      informed by the cognizant COTP that                    hire is not involved in an appeal or
                                        TWIC application within 30 days, the                    the individual poses a security threat.                waiver application. The owner/operator
                                        Coast Guard may further extend access                      This provision only applies to direct               must retain this statement until the new
                                        to secure areas for another 30 days.                    hires of the owner/operator; it cannot be              hire receives a TWIC. The statement
                                        Additional guidance on the manner in                    used to allow temporary unescorted                     must be produced if the Coast Guard
                                        which new hires may be accompanied                      access to contractors, vendors,                        requests it during an inspection or
                                        will be issued by the Coast Guard. The                  longshoremen, truck drivers (unless                    investigation. The new hire must also
                                        guidance will be in the form of a NVIC                  they are direct employees of the owner/                present to the owner or operator a form
                                        that considers vessel or facility size,                 operator), or any other visitor. This                  of identification that meets the standard
                                        crew or staff size, vessel or facility                  provision does not apply if the new hire               set in 33 CFR 101.515.
                                        configuration, the number of TWIC                       is a Company, Vessel, or Facility
                                                                                                                                                          It is also important to note here that
                                        holders, and other appropriate factors,                 Security Officer, or is otherwise tasked
                                                                                                                                                       a new hire may be initially cleared to
                                        or by making a determination on a case-                 with security duties as a primary
                                                                                                                                                       work in the secure area under the
                                        by-case basis. For example, in some                     assignment.
                                                                                                   In order for the Coast Guard and TSA                provisions of this section, but be
                                        instances, where the operating                                                                                 disqualified from receiving a TWIC
                                        environment of the vessel is such that                  to verify that a new hire who is awaiting
                                                                                                TWIC issuance passes an initial security               when the full threat assessment is
                                        there is a small crew, and there is a 24-                                                                      complete. The results of the criminal
                                        hour live watchstand while underway,                    review, this provision includes a
                                                                                                requirement for the owner, operator,                   history records check (CHRC) generally
                                        we expect to view the new hires as                                                                             will not be fully adjudicated within
                                        accompanied when the vessel owner/                      Vessel Security Officer (VSO) or FSO to
                                                                                                enter new hire identifying information                 three days, and if the adjudication
                                        operator ensures that the security                                                                             reveals a disqualifying criminal history,
                                        measures for monitoring and access                      into the Coast Guard’s Homeport web
                                                                                                page. The Homeport web page is a                       the new hire will not be cleared to
                                        control included within their Coast                                                                            receive a TWIC.
                                        Guard-approved security plans are                       secure location capable of
                                        implemented. As the operating                           communicating sensitive security                          The owner/operator of regulated
                                        environment increases or becomes more                   information such as Vessel Security                    vessels or facilities is required to
                                        complex, such as might be the case                      Plans (VSP) and Facility Security Plans                accompany new hires in secure areas,
                                        when Certain Dangerous Cargoes (CDCs)                   (FSP) between industry and the Coast                   which includes monitoring new hires
                                        are present, we expect to require                       Guard. The Homeport web page address                   while they are in restricted areas of the
                                        additional security measures to ensure                  is Homeport                  vessel or facility. Monitoring has the
                                                                                                will then interface with the TSA system,               same meaning here as found in
                                        that the new hires are, in fact,
                                                                                                and if a match to an enrollment record                 §§ 104.285, 105.275, and 106.275 of 33
                                        accompanied by an individual with a
                                                                                                can be made, the TSA system will pass                  CFR chapter I, subchapter H.
                                        TWIC. Similar guidance will also be in
                                                                                                back to Homeport the result of the                        We are also requiring owners/
                                        place for larger vessels, as well as for
                                                                                                initial name-based check. If the result is             operators of regulated vessels and
                                        facilities and OCS facilities. The NVIC
                                                                                                that the new hire has been cleared, the                facilities to determine that their new
                                        will be released in the near future.
                                          In order to take advantage of this new                owner/operator/security officer can put                hires need access to secure areas
                                        hire provision, the following procedures                the new hire to work under the                         immediately in order to prevent adverse
                                                                                                provisions of this section and any                     impact to the operation of the vessel or
                                        must be followed:
                                          (1) The new hire will need to have                    guidance provided by the Coast Guard                   facility. Owners and operators must
                                        applied for a TWIC in accordance with                   in a forthcoming NVIC.                                 identify that a hardship exists to their
                                                                                                   TSA will begin the security threat
                                        49 CFR part 1572 by completing the full                                                                        operations if their new hires are not
                                                                                                assessment process as soon as the
                                        enrollment process and paying the user                                                                         allowed access. This adverse impact is
                                                                                                enrollment record is complete.
                                        fee. He or she cannot be engaged in a                                                                          not the impact of simply providing
                                                                                                Generally, TSA can complete an initial
                                        waiver or appeal process. The owner or                                                                         escorts for new hires, but must be
                                                                                                security review within 48–72 hours
                                        operator must have the new hire sign a                                                                         adverse impacts to the business itself
                                                                                                based on all of the information provided
                                        statement affirming this.                                                                                      from not being able to employ new hires
                                                                                                during enrollment. Thus, in some cases
                                          (2) The owner or operator or the                                                                             immediately in secure areas without
                                                                                                (where the new hire information is
                                        security officer must enter the following                                                                      escort.
                                                                                                entered into Homeport three or more
                                        information on the new hire into the                                                                              Owners and operators of regulated
                                                                                                days following enrollment), the owner/
                                        Coast Guard’s Homeport Web site                                                                                vessels and facilities must be assured
                                                                                                operator/security officer will not have to
                                        (                                                                                    that there are no other circumstances
                                          (i) Full legal name, including middle                 wait long before finding out if an
                                                                                                individual has cleared the initial name                that would cause reasonable suspicion
                                        name if one exists;
                                          (ii) Date of birth;                                   check. We expect that Homeport will be                 regarding the new hire’s ability to obtain
                                          (iii) Social security number (optional);              able to notify owners/operators/security               a TWIC. This information can come
                                          (iv) Employer name and 24 hour                        officers, via e-mail, when it has received             through the normal hiring process,
                                        contact information; and                                an update on any of the new hires                      reference checks, or interviews. Also, if
                                          (v) Date of TWIC enrollment;                          entered by that owner/operator/security                the Coast Guard, through its Captain of
                                          (3) The new hire must present an                      officer, which will alleviate any need for             the Port (COTP), has informed the
                                        identification credential that meets the                them to continuously check in with                     owner/operator that the new hire poses
                                        requirements of § 101.515 of this                       Homeport.                                              a security threat, the new hire may not
                                        subchapter; and                                            The new hire must have applied for                  have unescorted access to secure areas
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                                          (4) There must be no other                            a TWIC in accordance with 49 CFR part                  of the vessel or facility. Only
                                        circumstances that would cause                          1572 by completing the full enrollment                 individuals who pass a threat
                                        reasonable suspicion regarding the new                  process and paying the user fee. The                   assessment and are issued a TWIC may
                                        hire’s ability to obtain a TWIC, and the                owner/operator must have the new hire                  have unescorted access to secure areas
                                        owner or operator or Facility Security                  sign a statement affirming the                         of the vessel or facility.

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                                        (d). Access for Individuals With Lost/                  defined as restricted areas in the vessel              areas. We ultimately abandoned this
                                        Stolen TWICs                                            security plan (VSP). Note, however, that               option, however, when we realized that
                                           Under the NPRM, we proposed                          any employee that needs to have                        equating the restricted area to the secure
                                        requiring owners/operators to include                   unescorted access to areas of the vessel               area would have required that the
                                        alternative security procedures in the                  outside of the passenger or employee                   readers and biometric verification be
                                        TWIC Addenda. These alternative                         access areas will need to obtain a TWIC.               used at the entry points of each
                                        procedures were to be used in various                   (f) TWIC Addendum and Recordkeeping                    restricted area. Because some facilities
                                        situations, such as when individuals                    Requirements                                           and vessels have multiple restricted
                                        needed unescorted access to secure                                                                             areas that are not always contiguous,
                                                                                                   We removed the TWIC Addendum                        this would have likely meant that many
                                        areas but had lost their TWIC, had it                   requirement from the final rule when
                                        stolen, or simply forgotten it that day.                                                                       owners/operators would have needed
                                                                                                we determined that the reader                          more than one reader, increasing their
                                        As discussed below, we removed the                      requirements would be delayed until a
                                        TWIC Addendum requirement from the                                                                             compliance costs. Additionally, the
                                                                                                subsequent rulemaking. The purpose of                  process of repeated biometric
                                        final rule, but we wanted to include a                  the TWIC Addendum was to allow the
                                        provision to allow TWIC holders to                                                                             identification could have interfered
                                                                                                owner/operator to explain how the                      with the operations of facilities and
                                        continue, for a short period, to have                   readers would be incorporated into their
                                        unescorted access to secure areas after                                                                        vessels. Finally, we determined that
                                                                                                overall access control structure, within               there are areas within some facilities
                                        reporting their TWICs as lost, damaged,                 the standards provided in the NPRM.
                                        or stolen. As a result, this final rule                                                                        that are not required to be restricted
                                                                                                With the removal of the reader                         areas that should be deemed secure
                                        includes specific procedures for                        requirements from this final rule, we
                                        owners/operators to use in the case of                                                                         areas, such as truck staging areas, empty
                                                                                                feel it is appropriate to also remove the              container storage areas, and roads
                                        lost, damaged, or stolen TWICs. This                    TWIC Addendum requirement.
                                        procedure includes having the                                                                                  leading between the facility gates and
                                                                                                Additionally, because we envision the                  the pier. Allowing persons who have
                                        individual report his/her card as lost,                 TWIC Addendum to be a part of the
                                        damaged, or stolen to the TWIC Call                                                                            not been through the security threat
                                                                                                subsequent rulemaking on reader                        assessment or are not escorted to have
                                        Center and checking another form of                     requirements, we felt it would be overly
                                        identification that meets 33 CFR                                                                               access to these areas could provide them
                                                                                                burdensome to also require a TWIC                      with the opportunity to access the non-
                                        101.515, provided there are no other                    Addendum at this point in time.
                                        suspicious circumstances that would                                                                            restricted areas of the facility to
                                                                                                   The recordkeeping requirements
                                        cause an owner/operator to question the                                                                        perpetrate a transportation security
                                                                                                related to TWIC implementation have
                                        veracity of the individual. In order to                                                                        incident (TSI). Pushing the secure area
                                                                                                also been removed from the final rule.
                                        prevent this procedure from becoming a                                                                         out beyond the restricted area makes the
                                                                                                We had proposed the requirements
                                        significant loophole in the TWIC                                                                               event of an intentional TSI less likely.
                                                                                                because we believed they could be
                                        regulation, we require that the                                                                                As a result, we decided to define the
                                                                                                satisfied by using the TWIC readers,
                                        individual be known to have had a valid                                                                        secure area as the ‘‘access control area,’’
                                                                                                which were also proposed. Due to our
                                        TWIC and to have previously been                                                                               thus limiting the number of readers
                                                                                                decision to remove the reader
                                        granted unescorted access, and have                                                                            required, as well as the number of times
                                                                                                requirements from this final rule, it
                                        limited the use of the procedure to                                                                            biometric verification would need to
                                                                                                makes sense to also remove the
                                        seven (7) consecutive calendar days.                                                                           take place, and providing for the
                                                                                                recordkeeping requirements that were
                                        This should provide enough time for the                                                                        necessary level of security outside of
                                                                                                intrinsically tied to those readers.
                                        replacement card to be produced and                                                                            restricted areas. We note, however, that
                                        shipped to the nearest enrollment enter,                (g). Secure Area                                       facility owners/operators have the
                                        and for the individual to travel to that                   We did not intend for the terms                     discretion to designate their entire
                                        center to pick up the replacement card.                 ‘‘secure area’’ and ‘‘restricted area’’ to be          facility as a restricted area. In this
                                                                                                read as meaning the same thing.                        situation, the restricted area and secure
                                        (e). ‘‘Employee Access Areas’’                          Restricted areas are defined already in                area would be one and the same.
                                           We intended for the term ‘‘passenger                 the MTSA regulations as ‘‘the                             We recognize that many facilities may
                                        access area’’ to capture those employees                infrastructure or locations identified in              have areas within their access control
                                        whose jobs are necessary solely for the                 an area, vessel, or facility security                  area that are not related to maritime
                                        entertainment of the passengers of the                  assessment or by the operator that                     transportation, such as areas devoted to
                                        vessel, such as musicians, wait staff, or               require limited access and a higher                    manufacturing or refining operations,
                                        casino employees on a passenger vessel.                 degree of security protection.’’ (33 CFR               and were only included within the FSP
                                        Upon reviewing comments, however,                       101.105) Additionally, those regulations               because the owner/operator did not
                                        we realized that there are a variety of                 spell out certain areas within vessels                 want to have to install additional access
                                        employees who may need to enter non-                    and facilities that must be included as                control measures to separate the non-
                                        passenger spaces, such as the galley,                   restricted areas (see 33 CFR 104.270,                  maritime transportation related portions
                                        who would be included under TWIC’s                      105.260, and 106.265). This final rule                 of their facility from the maritime
                                        applicability merely because of their                   defines ‘‘secure area’’ as meaning the                 transportation related portions. Given
                                        need to enter these areas. As such, we                  area over which an owner/operator has                  the new obligations of this TWIC final
                                        are adding a definition for ‘‘employee                  implemented security measures for                      rule, however, these owners/operators
                                        access areas,’’ for use only by passenger               access control. In other words, the                    may wish to revisit this decision. As
                                        vessels and ferries. An employee access                 secure area would be anything inside                   such, we are giving facility owners/
                                        area is a defined space within the access               the outer-most access control point of a               operators the option of amending their
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                                        control area of a ferry or passenger                    facility, and it would encompass the                   FSP to redefine their secure area, to
                                        vessel that is open to employees but not                entirety of a vessel or OCS facility.                  include only those portions of their
                                        passengers. It is not a secure area and                    We adopted this definition after much               facility that are directly connected to
                                        does not require a TWIC for unescorted                  consideration, including consideration                 maritime transportation or are at risk of
                                        access. It may not include any areas                    of making only restricted areas secure                 being involved in a transportation

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                                        security incident. These amendments                     Committees, who would opt out of                       announced for each COTP zone at least
                                        must be submitted to the cognizant                      sitting on the Committee rather than                   90 days in advance by a Notice
                                        COTP by July 25, 2007.                                  assume the cost of obtaining a TWIC.                   published in the Federal Register. The
                                          We realize that there may be some                     Therefore, we have changed the final                   latest date by which facilities can expect
                                        owners and operators of vessels that                    rule to allow AMSC members to serve                    to be required to comply will be
                                        would like the same option. However,                    on the AMSC after the completion of a                  September 25, 2008. Additionally,
                                        vessels present a unique security threat                name-based terrorist check from TSA. If                mariners will not need to hold a TWIC
                                        over facilities in that they may not only               an AMSC member requires unescorted                     until September 25, 2008. Mariners may
                                        be targets in and of themselves, but may                access to secure areas of vessels or                   rely upon their Coast Guard-issued
                                        also be used as a weapon. Due to this                   facilities they will be required to obtain             credential and a photo ID to gain
                                        fact, we will continue to define the                    a TWIC. If, however, they do not require               unescorted access to secure areas to any
                                        entire vessel as a ‘‘secure area,’’ making              unescorted access, but do need access to               facility that has a compliance date
                                        exception only for those special                        SSI, they must first pass a TSA name                   earlier than September 25, 2008.
                                        passenger and employee access areas                     based check at no cost to the AMSC
                                        which are discussed above. Vessel                                                                              2. Changes From TSA’s Proposed Rule
                                                                                                member. The Federal Maritime Security
                                        owners/operators need not submit an                     Coordinator for the member’s particular                   TSA is changing several sections of
                                        amendment to the VSP in order to                        AMSC (i.e. COTPs) will forward the                     the proposed rule as a result of
                                        implement these special areas, however                  names of these individuals to TSA or                   comments received, new legislation,
                                        they may do so, following the                           Coast Guard Headquarters for clearance                 and additional analysis. The changes
                                        procedures described in part 104.                       prior to sharing SSI with these                        include: (1) Establishing procedures for
                                                                                                members.                                               review of waiver denials by an ALJ; (2)
                                        (h). U.S. Vessels in Foreign Waters                                                                            applying the hazmat and TWIC appeal
                                           Due in part to the unique operating                  (j). Emergency Responders                              procedures to air cargo personnel; (3)
                                        requirements imposed on U.S. Offshore                      We added a provision within 33 CFR                  amending the list of disqualifying
                                        Supply Vessels (OSVs) and Mobile                        101.514 to allow State and local                       criminal offenses; (4) expanding the
                                        Offshore Drilling Units (MODUs) when                    emergency responders to gain access to                 group of aliens who meet the
                                        operating in support of OCS facilities in               secure areas without a TWIC during an                  immigration standards; (5) amending
                                        foreign waters, we determined that we                   emergency situation. Not all emergency                 the waiver standards for applicants
                                        must change some language from the                      responders will fall into the category of              disqualified due to mental incapacity;
                                        proposed rule. As such, we are adding                   State or local officials. We feel it is                (6) amending the fees for TWIC; (7)
                                        a provision to the definition of secure                 imperative that these individuals be                   revising the standard for drivers
                                        area in § 101.105 that states that U.S.                 allowed unescorted access to secure                    licensed in Mexico and Canada who
                                        vessels operating under the waiver                      areas in an emergency situation.                       transport hazardous materials into and
                                        provision in 46 U.S.C. 8103(b)(3)(A) or                 Emergency responders who are not State                 within the United States; and (8)
                                        (B) have no secure areas. These waiver                  or local officials are encouraged to apply             modifying the prohibitions on
                                        provisions allow U.S. vessels to employ                 for a TWIC. Under the existing access                  fraudulent use or manufacture of TWIC
                                        foreigners as crew in certain                           control requirements of 33 CFR 105.255,                or access control procedures.
                                        circumstances. The effect of this change                the owner or operator has documented
                                        is to exempt these vessels from the                                                                            (a). Review by Administrative Law
                                                                                                procedures for checking credentials                    Judge
                                        TWIC requirement while they are                         prior to allowing access and will
                                        operating under the referenced waivers.                 maintain responsibility for all those                     We noted in the NPRM that if
                                        As soon as the vessel ceases operating                  granted access to a vessel or facility,                legislation was enacted after publication
                                        under these waiver provisions, it will be               even in an emergency situation.                        of the final rule to require review by an
                                        deemed to have secure areas as                                                                                 Administrative Law Judge of the denial
                                        otherwise defined, and TWIC provisions                  (k). Voluntary Compliance                              of waiver requests by TSA, we would
                                        will apply.                                                The provisions that would have                      include such a statutory mandate in the
                                                                                                allowed vessel and facility owners/                    final rule. See 71 FR at 29421. The Coast
                                        (i). Area Maritime Security (AMS)                                                                              Guard and Maritime Transportation Act
                                                                                                operators to implement voluntary TWIC
                                        Committee Members                                                                                              of 2006, Pub. L. 109–241, was enacted
                                                                                                programs have been removed. These
                                           The NPRM proposed requiring all                      provisions have been eliminated due to                 on July 11, 2006. Section 309 of this Act
                                        members of AMS Committees to have a                     the fact that neither TSA nor the Coast                requires the Secretary of Homeland
                                        TWIC. We recognize that large numbers                   Guard can, at this time, envision being                Security to establish an ALJ review
                                        of the members will either (1) already                  in a position to approve voluntary                     process for individuals denied a waiver
                                        have a TWIC, due to their role within                   compliance before the full TWIC                        by TSA. Accordingly, we are including
                                        the security organization of a facility, or             program, (i.e., reader requirements) is in             the ALJ review procedures in new
                                        (2) already have undergone some type of                 place. We will keep it in mind,                        § 1515.11.
                                        comparable background screening due                     however, as we develop our NPRM to                        The ALJ review process set forth
                                        to their position as a Federal, State, or               repropose reader requirements.                         under § 1515.11 does not alter the
                                        local law enforcement official. After                                                                          substantive criteria under which TSA
                                        further consideration, we believe that                  (l). Compliance Dates                                  will grant or deny a waiver. Therefore,
                                        anyone not falling into one of these                       We have also revised the compliance                 this provision constitutes a rule of
                                        categories could be discouraged from                    dates slightly. Vessels will now have 20               agency procedure and may be
                                        volunteering to sit on an AMS                           months from the publication date of this               implemented without prior notice and
                                        Committee, due to the cost of obtaining                 final rule to implement the new TWIC                   comment under the Administrative
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                                        a TWIC. This could have a detrimental                   access control provisions. Facilities will             Procedure Act, 5 U.S.C. 553(b)(A). See
                                        effect on the AMS Committee, as there                   still have their compliance date tied to               Hurson Assoc. Inc., v. Glickman, 229
                                        may be individuals who are experts in                   the completion of initial enrollment in                F.3d 277 (D.C. Cir. 2000) (rule
                                        security who would be (and in some                      the COTP zone where the facility is                    eliminating face-to-face process in
                                        cases already are) valuable parts of AMS                located. This date will vary, and will be              agency review of requests for approval

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                                        3500             Federal Register / Vol. 72, No. 16 / Thursday, January 25, 2007 / Rules and Regulations

                                        was procedural and not subject to                       procedures in § 1515.7. If a waiver is not             The TSA Final Decision Maker may
                                        notice-and-comment rulemaking).                         granted, the applicant may seek review                 issue an unclassified opinion to the
                                           The new legislation requires ALJ                     by an ALJ under § 1515.11.                             parties and a classified opinion to TSA.
                                        review to be available for denials of                      For consistency, we are providing the               The decision of the TSA Final Decision
                                        waivers. Under the rules waivers are not                same review processes for hazardous                    Maker is a final agency order.
                                        available for determinations under                      materials endorsement (HME)                               Paragraph 1515.11(h) states that an
                                        § 1572.107 that an applicant poses a                    applicants that we are providing for                   applicant may seek judicial review of a
                                        security threat, which usually is based                 TWIC applicants.                                       final order of the TSA Final Decision
                                        on an intelligence-related check                           Paragraph 1515.11(a) of this new                    Maker in accordance with 49 U.S.C.
                                        involving classified information.                       section specifies that the new process                 46110, which provides for review in the
                                        However, we have considered that there                  applies to applicants who are seeking                  United States Court of Appeals. Under
                                        appears to be an intent that we provide                 review of an initial decision by TSA                   sec. 46110 a party has 60 days after the
                                        for an ALJ review of such                               denying a request for a waiver under                   date of service of the final order to
                                        determinations, considering, for                        § 1515.7 or who are seeking review of a                petition for review.
                                        example, that the statute provides for                  Final Determination of Threat
                                                                                                Assessment issued under § 1515.9.                      (b). Appeal Procedures for Air Cargo
                                        ALJ review of classified information,
                                                                                                   Section 1515.11(b) allows the                       Personnel
                                        which rarely is relevant to waivers
                                        under the current rules. We have also                   applicant 30 calendar days from the                       In the final rule we are adding the
                                        considered that the decision to                         date of service of the determination to                appeal procedures that currently apply
                                        determine whether an applicant poses a                  request a review. The review will be                   to air cargo workers codified at 49 CFR
                                        threat under § 1572.107 is largely a                    conducted by an ALJ who possesses the                  parts 1540 to 1515. In the NPRM TSA
                                        subjective judgment based on many                       appropriate security clearances to                     stated that it may use the procedures in
                                        facts and circumstances. The same is                    review classified information. The rule                part 1515 for other security threat
                                        true for the decision to grant or deny a                sets forth the information that the                    assessments, such as for air cargo
                                        waiver of the standards in §§ 1572.103                  applicant must submit. This section                    personnel. See 71 FR at 29418. At that
                                        (criminal offenses), aliens who are in                  clarifies that the ALJ may only consider               time the air cargo proposed rule had
                                        TPS under 1572.105, or 1572.109                         evidence that was presented to TSA at                  been published but was not yet final,
                                        (mental capacity). Accordingly, we are                  the time of application in the request for             and it proposed to use appeal
                                        providing for ALJ review of both a                      a waiver or the appeal. If the applicant               procedures that were essentially the
                                        determination that the applicant does                   has new evidence or information to                     same as for HME applicants. The air
                                        not meet the standards in § 1572.107,                   support a request for waiver, the                      cargo rule has now been made final. See
                                        and a denial of a waiver of certain                     applicant must file a new request for a                71 FR 30478 (May 26, 2006). Because
                                        standards in §§ 1572.103, 1572.105, and                 waiver under § 1515.7 or a new appeal                  part 1515 was not yet final in the air
                                        1572.109.                                               under § 1515.9 and the pending request                 cargo rule, we placed the appeal
                                           An applicant who has received an                     for review will be dismissed. Section                  procedures for the air cargo security
                                        Initial Determination of Threat                         1515.11 provides detailed requirements                 threat assessment into part 1540 subpart
                                        Assessment based on § 1572.107 may                      for the conduct of the review, such as                 C, along with other procedures that
                                        first appeal that determination using the               requests for extension of time and duties              apply to air cargo threat assessments. In
                                        procedures in new § 1515.9. If after that               of the ALJ.                                            a further effort to harmonize security
                                        appeal TSA continues its determination                     In accordance with the Coast Guard                  threat assessments, we are now moving
                                        that the applicant is not qualified, the                and Maritime Transportation Act, this                  the appeal procedures for air cargo
                                        applicant may seek ALJ review under                     section provides for ALJ review of                     personnel to part 1515. For consistency
                                        § 1515.11.                                              classified information on an ex parte, in              with the TWIC and HME processes we
                                           On the other hand, the determination                 camera basis and consideration of such                 are providing for review by an ALJ as
                                        that an applicant does or does not have                 information in rendering a decision if                 described above.
                                        a disqualifying criminal offense listed in              the information appears to be material                    We are also revising part 1540 subpart
                                        § 1572.103, immigration status in                       and relevant.                                          C to harmonize more with part 1572.
                                        § 1572.105, or mental capacity described                   Paragraph 1515.11(f) provides that                  Thus, we are replacing ‘‘individual’’
                                        in § 1572.109, largely involves an                      within 30 calendar days after the                      with ‘‘applicant’’ to refer to the person
                                        analysis of the legal events that have                  conclusion of the hearing, the ALJ will                who is applying for a security threat
                                        occurred. Such analyses depend mainly                   issue an unclassified decision to the                  assessment. We are also revising
                                        on review of legal documents. We have                   parties. The ALJ may issue a classified                § 1540.205 to read essentially the same
                                        retained in § 1515.5 the paper hearing                  decision to TSA. The ALJ may decide                    as § 1572.21 for TWIC, because it serves
                                        process for the appeal of an Initial                    that the decision was supported by                     the same function. Note that while the
                                        Determination that an applicant is not                  substantial evidence on the record or                  procedures for TWIC refer to CHRCs and
                                        qualified under those sections. At the                  that the decision was not supported by                 other checks, the procedures for air
                                        end of that appeal, if TSA issues a Final               substantial evidence on the record. If                 cargo personnel refer only to
                                        Determination that the applicant is not                 neither party requests a review of the                 intelligence-related checks, because
                                        qualified under one of those sections,                  ALJ’s decision, TSA will issue a final                 they are not subject to the other checks
                                        the applicant may seek review in the                    order either granting or denying the                   conducted on TWIC applicants.
                                        Court of Appeals. At any time, however,                 waiver or the appeal.
                                        the applicant may seek a waiver of                         Paragraph 1515.11(g) describes the                  (c). Disqualifying Criminal Offenses.
                                        certain standards in those sections on                  process by which a party may petition                     In this final rule, the list of criminal
                                        the basis that, notwithstanding a lack of               for review of the ALJ’s decision to the                acts that disqualify an applicant from
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                                        qualification, the applicant asserts that               TSA Final Decision Maker. The TSA                      holding an HME under 49 CFR 1572.103
                                        he or she does not pose a security threat               Final Decision Maker will issue a                      now applies to TWIC applicants. We
                                        and thus seeks to waive the subject                     written decision within 30 calendar                    believe equal treatment for
                                        standards. The applicant initiates the                  days after receipt of the petition or                  transportation workers is appropriate
                                        request for a waiver using the                          receipt of the other party’s response.                 and consistent with the pertinent

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                                                         Federal Register / Vol. 72, No. 16 / Thursday, January 25, 2007 / Rules and Regulations                                           3501

                                        statutory requirements. The standards                   crime of terrorism as defined in 18                    conviction under State law. TSA also
                                        for the HME rule were mandated by the                   U.S.C. 2332b(g)’’ or conspiracy to                     modified the wording found in section
                                        Uniting and Strengthening America by                    commit such crime, or comparable State                 844(e) to include threats of use of lethal
                                        Providing Appropriate Tools Required                    law. Section 2332b(g) is a definitional                weapons in addition to fire and
                                        to Intercept and Obstruct Terrorism Act                 list that is broader and more explicit                 explosives, such as biological, chemical,
                                        (USA Patriot Act) Pub. L. 107–56, 115                   than the crimes punished directly in                   or radiological weapons. Threats to use
                                        Stat.272 (October 25, 2001). It provides                Chapter 113B. We are making this                       these weapons are prohibited by other
                                        that TSA conduct a security threat                      change to more accurately capture all                  sections of the federal criminal code.
                                        assessment on applicants to determine if                pertinent terrorism-related crimes.                    See, e.g., 18 U.S.C 175 (Biological
                                        they pose a ‘‘security risk.’’ The USA                  Although we intended to be as inclusive                weapons); 18 U.S.C. 229 (Chemical
                                        Patriot Act was enacted shortly after and               as possible with the previous language,                Weapons); and 18 U.S.C. 2332h.
                                        in response to the terrorist attacks on                 experts at the Department of Justice                      TSA has revised the language of
                                        the United States on September 11. As                   advise that the new language more                      paragraph (b) to clarify that the crimes
                                        a result, we interpreted the language                   accurately captures the relevant                       listed are disqualifying if either of the
                                        ‘‘security risk’’ to mean a risk of                     criminal acts. TSA is adding felony                    following are true: (1) The applicant’s
                                        terrorism or terrorist activity. Nothing in             bomb threat in paragraph (a)(9) as a                   date of conviction is within seven years
                                        the statute or the legislative history of               permanent disqualifier including                       of the date of application; or (2) the
                                        the USA Patriot Act contradicts this                    maliciously conveying false information                applicant was incarcerated for that
                                        reading of the language. MTSA, enacted                  concerning the deliverance, placement,                 crime and was released from
                                        a year later, requires a security threat                or detonation of an explosive or other                 incarceration within five years of the
                                        assessment to determine whether an                      lethal device against a state or                       date of application.
                                        applicant poses a ‘‘terrorism security                  government facility, public                               TSA is adding the offense of
                                        threat.’’ We believe the security threat                transportation system or an                            fraudulent entry into seaport secure
                                        assessment required under MTSA is the                   infrastructure facility. TSA is including              areas to the list of interim disqualifiers.
                                        same threat assessment required under                   this crime because it is, in essence, a                This is a new provision in 18 U.S.C.
                                        the USA Patriot Act, even though the                    threat to commit an act of terrorism. We               1036 that we believe is particularly
                                        actual language differs slightly.                       note that we have disqualified an                      relevant to this rulemaking and any
                                           In addition, TSA is making                           applicant with such crime under the                    TWIC applicant.
                                        administrative and substantive changes                                                                            TSA is also clarifying in paragraph
                                                                                                authority of current paragraph (b)(6)
                                        to this section. In the NPRM, TSA                                                                              (b)(2)(iii) that money laundering is an
                                                                                                dishonesty, misrepresentation, or fraud.
                                        indicated that it was considering                                                                              interim disqualifier because it is
                                                                                                To be clear that this crime is a
                                        changing the list of disqualifying crimes                                                                      encompassed under the crimes of
                                                                                                permanent disqualifier, we are adding it
                                        and asked for comment on the list. TSA                                                                         dishonesty and fraud and can be a
                                                                                                as an independent offense in
                                        received significant comments from                                                                             means of funding terrorism. It is known
                                                                                                § 1572.103(a)(9). This offense includes                that criminals obtain money from the
                                        Congress and others suggesting that the                 making any threat, or maliciously
                                        list of disqualifying crimes is overly                                                                         illegal sale of drugs, firearms and other
                                                                                                conveying false information knowing                    contraband, launder the money to hide
                                        broad, and that some crimes had more                    the same to be false, concerning the
                                        of a nexus to terrorism than others. 152                                                                       its origin and then funnel this money to
                                                                                                deliverance, placement, or detonation of               terrorist groups. The money laundering
                                        Cong. Rec. 2120 (2006). See also                        an explosive or other lethal device in or
                                        Comments of House Committee on                                                                                 disqualifier is limited to convictions
                                                                                                against a place of public use, a state or              where the laundering was for proceeds
                                        Homeland Security on TSA and Coast
                                                                                                government facility, a public                          of other disqualifying criminal activities
                                        Guard’s Rule to Implement TWIC, July
                                                                                                transportation system, or an                           such as drugs or weapon sales.
                                        6, 2006. TSA has evaluated the list of
                                                                                                infrastructure facility.                                  TSA is also clarifying that welfare
                                        disqualifying crimes and decided to fine
                                        tune the list to better reflect crimes that                Paragraph 1572.103(a)(9) is based in                fraud and passing bad checks will not
                                        are more likely to result in a terrorism                part on conduct prohibited by several                  be considered crimes of dishonesty,
                                        security risk or a transportation security              federal crimes. The first is 18 U.S.C.                 fraud, or misrepresentation for purposes
                                        incident, and thus should disqualify an                 844(e), which is found in chapter 40                   of paragraph (b)(2)(iii). In some states,
                                        applicant from receiving a TWIC.                        (Explosive Materials) of the federal                   conviction for passing a bad check of
                                           TSA is making a substantive change                   criminal code. Section 844(e)                          $100 is a felony and so would be
                                        to this section concerning the crimes of                criminalizes the use of the mail,                      disqualifying for an HME or TWIC
                                        treason, sedition, espionage, and                       telephone, or other instrument of                      applicant. Similarly, a conviction for
                                        terrorism listed in § 1572.103(a), which                interstate or foreign commerce to                      welfare fraud can be a felony under state
                                        are permanently disqualifying.                          willfully make any threat or maliciously               law, depending on the circumstances of
                                        Applicants convicted of these crimes are                convey false information knowing the                   the case. TSA believes that these crimes
                                        not eligible for a waiver. As we                        same to be false, concerning an attempt                generally do not have a nexus to
                                        proposed to do in the NPRM, TSA is                      to kill, injure, or intimidate any                     terrorism and therefore should not be
                                        adding conspiracy to commit these                       individual or unlawfully damage or                     disqualifying under MTSA.
                                        crimes to the list of crimes that are not               destroy any building, vehicle, or other                   TSA is moving the definitions of
                                        subject to a waiver request. TSA has                    real or personal property by means of an               ‘‘explosive,’’ ‘‘firearm,’’ and
                                        determined that a conviction of                         explosive. This crime is already                       ‘‘transportation security incident’’ from
                                        conspiracy to commit espionage,                         disqualifying under paragraph (a)(7).                  § 1572.3 to § 1572.103, where the terms
                                        treason, sedition, or terrorism is                      For inclusion in the list of disqualifying             are used. This should help to eliminate
                                        indicative of a serious, ongoing,                       crimes, TSA modified this description                  uncertainty about the crimes that are
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                                        unacceptable risk to security and should                to broaden it beyond a threat made                     disqualifying. In addition, TSA is
                                        not be waived under any circumstances.                  through an instrument of interstate or                 adopting clarifying language concerning
                                           TSA is changing the language in (a)(4)               foreign commerce. This change provides                 the kind of activity that constitutes a
                                        from ‘‘a crime listed in 18 U.S.C.                      a disqualification for purely intrastate               ‘‘transportation security incident.’’ As
                                        Chapter 113B—Terrorism’’ to ‘‘a federal                 conduct that results in a felony                       required in § 7105 of SAFETEA–LU,

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                                        3502             Federal Register / Vol. 72, No. 16 / Thursday, January 25, 2007 / Rules and Regulations

                                        codified at 47 U.S.C. 5103a(g)(3), the                  possession of a TWIC once legal status                 status. Where we can achieve a level of
                                        definition now makes clear that                         ends; (4) the restrictions, if any, that               certainty that the applicant will not
                                        nonviolent labor-management activity is                 apply to the applicant’s immigration                   possess a TWIC longer than his or her
                                        not considered a disqualifying offense.                 status; (5) particular maritime                        lawful presence and commenters have
                                          The list of disqualifying crimes in                   professions that commenters stated                     indicated there is a need for certain
                                        § 1572.103 applies equally to TWIC and                  often involve aliens; and (6) the checks               short-term aliens to hold a TWIC, we
                                        HME applicants, thus the amendments                     done by the U.S. Department of State                   will consider issuing them a credential.
                                        apply to both.                                          (State Department) or other federal                       Many aliens in lawful nonimmigrant
                                        (d). Immigration standards                              agency relevant to granting alien status.              status are not eligible to work in the
                                                                                                   With respect to non-U.S. citizens,                  United States or their employment
                                           The NPRM was drafted to permit non-                  MTSA provides that an individual may                   authorization is restricted in some way,
                                        resident aliens in the U.S. with                        not be denied a TWIC unless he or she                  usually to the particular sponsoring
                                        unrestricted authorization to work here                 may be denied admission to or removed                  employer or entity. With the exception
                                        to apply for and obtain a TWIC. As a                    from the United States under the                       of students in valid M–1 nonimmigrant
                                        result of comments and the relatively                   Immigration and Nationality Act (8                     status who are enrolled in the U.S.
                                        common employment of foreign                            U.S.C. 1101, et seq.), or ‘‘otherwise                  Merchant Marine Academy or a
                                        specialists in certain maritime job                     poses a terrorism security risk to the                 comparable State school and must
                                        categories who do not have                              United States3.’’ 46 U.S.C. 70105(c).                  complete vocational training, we do not
                                        ‘‘unrestricted’’ work authorization, we                 Under this final rule, all applicants for              believe it would be consistent with
                                        are expanding the group of aliens who                   TWICs must be lawfully present in the                  MTSA to permit lawful nonimmigrants
                                        can apply to include certain restricted                 country. Each of the permissible classes               that are ineligible to work or conduct
                                        work authorization categories.                          listed in § 1572.105 has, as a basis,
                                           For purposes of this discussion, it is                                                                      business in the United States to apply
                                                                                                lawful presence in the United States.                  for a TWIC. Also, if the employment
                                        helpful to explain that there are two                   Additionally, if the duration of an
                                        categories of U.S. visas: immigrant and                                                                        restriction placed on the nonimmigrant
                                                                                                applicant’s legal status as of the date of             generally prevents the individual from
                                        nonimmigrant. As provided in the                        enrollment does not meet or exceed the
                                        immigration laws, an immigrant is a                                                                            working in a maritime facility or vessel,
                                                                                                period of validity of the credential, five             we do not believe a TWIC should be
                                        foreign national who has been approved                  years, we have concerns about
                                        for lawful permanent residence in the                                                                          granted. The final rule now lists the
                                                                                                permitting the applicant to receive a                  nonimmigrant classifications with
                                        United States. Immigrants enjoy                         TWIC4. Given the statutory language—
                                        unrestricted eligibility for employment                                                                        restricted employment authorization
                                                                                                that we may deny a TWIC to an
                                        authorization. Nonimmigrants, on the                                                                           that have a nexus to the maritime
                                                                                                applicant who ‘‘may be denied
                                        other hand, are foreign nationals who                                                                          industry. Aliens in these nonimmigrant
                                                                                                admission to the United States or
                                        have permanent residence outside the                                                                           categories with restricted employment
                                                                                                removed from the United States under
                                        United States and who are admitted to                                                                          authorization may apply for a TWIC
                                                                                                the Immigration and Nationality Act’’—
                                        the United States on a temporary basis.                                                                        notwithstanding the fact that their
                                                                                                we believe it is not advisable and may
                                        Thus, immigrant visas are issued to                                                                            immigration status may expire in less
                                                                                                be inconsistent with MTSA to issue a
                                        qualified persons who intend to live                                                                           than five years, because we are requiring
                                                                                                five-year credential to an individual
                                        permanently in the United States.                                                                              additional measures to ensure that the
                                                                                                whose known lawful status as of the
                                        Nonimmigrant visas are issued to                        date of enrollment is a much shorter                   TWIC expires after the employment that
                                        qualified persons with permanent                        time period. The statutory language                    requires unescorted access to secure
                                        residence outside the United States, but                reflects the evolving nature of                        areas ends.
                                        who are authorized to be in the United                  immigration status and we believe it is                   The final rule now requires employers
                                        States on a temporary basis, usually for                a significant distinction that warrants                of TWIC holders who are lawful
                                        tourism, business, study, or short-or                   particular treatment.                                  nonimmigrants with restricted
                                        long-term work. Certain categories of                      Changes to alien status occur                       authorization to work to retrieve the
                                        lawful nonimmigrant visas or status                     frequently and are difficult to track                  applicant’s TWIC when the job for
                                        allow for restricted employment                         accurately in real time and perpetually,               which the nonimmigrant status was
                                        authorization during the validity period                both of which are necessary to ensure                  granted is complete. The employer in
                                        of the visa or status.                                  that a TWIC holder remains in legal                    this situation should be well aware that
                                           TSA has carefully reconsidered the                                                                          the employment status has ended
                                        immigration standards we proposed in                       3 The governing statute for immigration standards   because the visa was issued to facilitate
                                        the NPRM in light of the comments we                    for an HME (49 U.S.C. 5103a) requires TSA to           a specific job or employment with the
                                        received relating to immigration status                 ‘‘review relevant databases to determine the status    employer. However, if an employer
                                                                                                of an alien under U.S. immigration law,’’ which
                                        and our own ongoing analysis. As a                      provides TSA more discretion to determine whether      terminates the employment relationship
                                        result, we are amending the immigration                 an alien in a particular immigration class should      with the alien working on a restricted
                                        standards for TWIC and HME                              hold an HME. In order to maintain consistent           visa, or that alien quits working for the
                                        applicants. The critical issues we                      standards among transportation workers where           employer, the employer is required to
                                                                                                possible, the immigration standards we are
                                        examined and on which we rely to                        establishing in this final rule for TWIC applicants    notify TSA within 5 days and provide
                                        determine whether an alien should be                    will also apply to HME applicants. However, as a       the TWIC to TSA if possible.
                                        permitted to apply for a TWIC or HME                    threshold matter, HME applicants must first meet       Additionally, all applicants must return
                                        are: (1) The statutory language regarding               the standards to hold a commercial driver’s license    their TWIC to TSA when they are no
                                                                                                promulgated by the U.S. Department of
                                        immigration status; (2) the degree to                   Transportation, which may include immigration          longer qualified for it, and a visa
                                        which TSA can complete a thorough                       status.                                                applicant’s TWIC expires when either
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                                        threat assessment both initially and                       4 The TSA system is not currently programmed to     the employment ends or the visa
                                        perpetually on the applicant; (3) the                   issue credentials with varying expiration dates; all   expires. These requirements should
                                                                                                TWICs will expire five years from the date on
                                        duration of the applicant’s legal status                which they were issued. We plan to explore
                                                                                                                                                       minimize the likelihood that an alien
                                        as of the date he or she enrolls and the                modifying aspects of the TSA system as the             will continue to possess a TWIC and
                                        degree to which we can control                          program matures.                                       have unescorted access to secure areas

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                                                         Federal Register / Vol. 72, No. 16 / Thursday, January 25, 2007 / Rules and Regulations                                                    3503

                                        of the maritime industry after his or her               we achieve some level of control over                  individuals from applying for a TWIC
                                        legal status to do so expires.                          the actual credential through the                      would adversely impact a significant
                                           The requirement to return a TWIC to                  applicant’s employer to minimize the                   number of applicants or the maritime
                                        TSA when the pertinent employment                       likelihood that an alien who has lost                  industry is virtually nonexistent.
                                        ends does not apply to employers of                     lawful status keeps the credential.                    Finally, the S–5 and S–6 status requires
                                        lawful nonimmigrants with unrestricted                     A significant component of a                        frequent contact with U.S. law
                                        authorization to work or employers of                   comprehensive security threat                          enforcement personnel for
                                        unrestricted lawful nonimmigrants.                      assessment is a fingerprint-based                      approximately three years, after which
                                        Under the immigration laws, the status                  criminal history records check for                     time the applicant may be
                                        assigned to an alien carries with it the                arrests, indictments, wants, warrants,                 recommended for lawful permanent
                                        determination that the individual may                   and serious felony convictions. If we are              resident status. After these individuals
                                        work in the United States with or                       unable to complete such a check                        satisfy the conditions of their status and
                                        without restriction. Where the alien                    because we cannot access the criminal                  become lawful permanent residents, the
                                        status includes employer sponsorship as                 records of the country in which an                     risk they initially present would
                                        a condition of legal presence, we believe               applicant has lived for many years, we                 effectively be mitigated and they would
                                        it is appropriate to require the employer               have concerns that we cannot make an                   be permitted to apply for a TWIC.
                                        to return the credential to TSA once that               accurate assessment of the individual.                    We do not believe it is advisable to
                                        relationship ends. However, in the cases                Many U.S. workers commented on this                    permit lawful nonimmigrants in K–1 or
                                        of alien status that do not carry                       fact, in some cases asserting that U.S.                K–2 status to apply for a TWIC. These
                                        employment restrictions, we do not                      citizens are held to a higher standard                                                 ´
                                                                                                                                                       individuals include the fiances and
                                        believe it is advisable at this time to                 than workers born abroad because of the                                          ´
                                                                                                                                                       minor children of fiances of U.S.
                                        require any employer action. The lawful                 inability to do a complete criminal                    citizens. Their lawful status expires in
                                        nonimmigrant who is not under                           records check on foreign-born                          just four months. We believe these
                                        employment restriction may cease                        applicants. We do not believe that this                individuals can be escorted under the
                                        working for an employer and maintain                    situation alone constitutes justification              final rule until they obtain permanent or
                                        legal status. Retrieving the TWIC at this               to deny non-citizens a TWIC,                           other lawful status.
                                        point would not be appropriate. If the                  particularly since U.S. citizens may be                   Aside from holders of the S–5 and S–
                                        applicant loses lawful status, under the                born abroad, or spend substantial time                 6 and K–1 and K–2 statuses all lawful
                                        rule, he or she must report any                         abroad. However, it does give rise to a                nonimmigrants with unrestricted
                                        disqualifying offense to TSA and                        legitimate security concern.                           authorization to work in the United
                                        surrender the TWIC. In addition, the                    Consequently, we must make every                       States may apply for a TWIC.
                                        enrollment record for each applicant                    effort to minimize the likelihood that                    Second, we are revising the rule to
                                        contains contact information for                        someone with malicious intent can                      treat U.S. nationals, that is, principally
                                        employers, and if TSA determines that                   enter the United States legally or                     American Samoans, as we treat U.S.
                                        an applicant has lost legal status, we                  illegally, hide significant prior criminal             citizens.5 We accomplished this change
                                        would generally have the information                    or terrorist activity, and obtain                      by adding a definition to the rule for
                                        necessary to contact the employer and                   unescorted access to secure areas of the               ‘‘National of the United States,’’ which
                                        the TWIC holder.                                        maritime industry.                                     means a citizen of the United States or
                                           To satisfy the second prong of                          To reduce the likelihood that TWICs                 an individual who owes permanent
                                        MTSA’s immigration status                               will be issued to someone with                         allegiance to the United States. This
                                        requirement, that a TWIC holder does                    malicious intent, we are changing the                  change is consistent with longstanding
                                        not pose a terrorism security threat to                 immigration standards in a variety of                  principles of immigration law and we
                                        the United States, TSA considers a                      ways to reduce those eligible for TWICs                believe would not introduce a security
                                        variety of factors. TSA must be able to                 to only those individuals on whom the                  threat. Similarly, the final rule permits
                                        conduct a comprehensive threat                          Department of State and/or DHS can                     citizens of the Federated States of
                                        assessment of the applicant. As in all of               perform an adequate security review.                   Micronesia, the Republic of the
                                        TSA’s security threat assessment                        First, we are not permitting certain                   Marshall Islands, and Palau who have
                                        programs, we will conduct a                             aliens in lawful nonimmigrant status                   been admitted as nonimmigrants under
                                        comprehensive threat assessment of                      with unrestricted employment                           the Compacts of Free Association
                                        each applicant upon enrollment, and                     authorization to apply for a TWIC. We                  between the United States and those
                                        then will vet the applicants perpetually                are not permitting aliens in valid S–5 or              countries to apply for a TWIC. The
                                        using appropriate databases throughout                  S–6 lawful nonimmigrant status with                    United States has entered into treaties
                                        the five-year term of the TWIC. We                      unrestricted authorization to work in                  with these countries that afford their
                                        consider the initial and perpetual                      the United States to apply for a TWIC.                 citizens preferred treatment. For
                                        vetting to be equally important in                      Individuals who are in S–5 and S–6                     instance, citizens of these countries may
                                        maintaining a high level of confidence                  lawful nonimmigrant status are                         reside indefinitely and work in the
                                        in the TWIC population. To the extent                   informants providing information                       United States without restriction.
                                        that a full threat assessment cannot be                 relating to criminal or terrorist                      Therefore, we believe it is appropriate to
                                        completed on an applicant initially or                  organizations. Typically, individuals                  permit these individuals to apply for a
                                        perpetually, TSA has concerns about                     who are able to provide this kind of                   TWIC.
                                        granting that applicant unescorted                      information to law enforcement                            Third, in response to many comments
                                        access to secure areas of maritime                      personnel in the United States have                    about the use of foreign professionals in
                                        facilities and vessels.                                 been engaged in criminal or terrorist                  the maritime industry for specialty
                                           Many immigration statuses change                     activity themselves. For this reason, we               work, we are permitting certain lawful
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                                        over time, and TSA generally is not in                  believe they pose a security risk and
                                                                                                                                                         5 Note that Swains Island has been incorporated
                                        a position to perpetually vet the                       should not be granted a TWIC.
                                                                                                                                                       into American Samoa and thus does not need a
                                        immigration status of an applicant. We                  Additionally, this status is granted to no             separate reference. (48 USC 1662) In addition, this
                                        are reluctant to provide a five-year                    more than 250 individuals per year, and                includes nationals of the Commonwealth of the
                                        TWIC under these circumstances unless                   so the likelihood that preventing these                Northern Mariana Islands.

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                                        3504                Federal Register / Vol. 72, No. 16 / Thursday, January 25, 2007 / Rules and Regulations

                                        nonimmigrants with restricted                               hold a TWIC to carry out their religious             extensions, terminations and other
                                        authorization to work in the United                         or spiritual functions, they may apply               documents regarding TPS are published
                                        States to apply for a TWIC. There is a                      and will be issued TWICs if they meet                in the Federal Register. Currently,
                                        longstanding practice of employing non-                     the eligibility requirements.                        nationals of Somalia, Sudan, Burundi,
                                        U.S. citizens to complete specialized                          Fourth, we are permitting students of             Honduras, Nicaragua, and El Salvador
                                        maritime tasks, such as maintaining                         the United States Maritime Academy                   have TPS status in the United States.
                                        vessel engines and motors. In addition,                     and comparable State maritime colleges                  In many cases, TPS status for a
                                        many international maritime companies                       in valid M–1 lawful nonimmigrant                     particular country will remain in place
                                        transfer staff from abroad into the                         status to apply for a TWIC. These                    for several years. Thus, nationals of
                                        United States for short or long-term                        individuals clearly have a need for                  these countries may be in the United
                                        periods, and many of these individuals                      unescorted access to maritime facilities             States for a decade or more and
                                        must work at maritime facilities or on                      and vessels as they complete their                   establish a record that TSA can
                                        vessels. Denying this segment of the                        vocational training in the United States.            effectively review for a security threat
                                        industry the opportunity to apply for a                        Fifth, we are adding individuals who              assessment. Based on this and the
                                        TWIC could adversely impact maritime                        are in TPS to the group of applicants                unrestricted work authorization, we
                                        operations and economic vitality.                           who may apply for a waiver. Temporary                have determined that under certain
                                        However, to mitigate our concerns about                     Protected Status is a temporary                      circumstances, TPS recipients should be
                                        the inability to complete a thorough                        immigration status granted to eligible               permitted to hold a TWIC. Our ability to
                                        initial and perpetual threat assessment                     nationals of designated countries. The               complete a thorough threat assessment
                                        on individuals who have not lived in                        Secretary may designate a country for                and the record that is disclosed during
                                        the United States for any significant                       TPS when it is determined that (1) there             the threat assessment will be critical
                                        period of time and who are authorized                       is an ongoing armed conflict in the state            factors in determining if a waiver
                                        to remain in the United States for less                     and, due to that conflict, return of                 should be granted to a TPS recipient. In
                                        than five years, we are adding                              nationals to that state would pose a                 addition, letters of reference from
                                        requirements for employers and affected                     serious threat to their personal safety;             employers, teachers, and religious or
                                        workers to return the TWIC to TSA                           (2) the state has suffered an                        spiritual personnel are also important to
                                        when the job is completed or the worker                     environmental disaster resulting in a                reach a determination on a waiver. Part
                                        otherwise ceases employment with the                        substantial, temporary disruption of                 1515 lists the information TSA reviews
                                        company.                                                    living conditions, the state is                      in making waiver determinations, which
                                           We received a comment concerning                         temporarily unable to handle adequately              now also apply to TPS recipients.
                                        aliens who are religious personnel in                       the return of its nationals, and the state              Finally, on October 17, 2006 Congress
                                        valid R–1 lawful nonimmigrant status                        has requested TPS designation; or (3)                passed the John Warner National
                                        with restricted employment                                  there exist other extraordinary and                  Defense Authorization Act for Fiscal
                                        authorization. The commenter noted                          temporary conditions in the state that               Year 2007 (P.L. 109–364). In that Act,
                                        that vessel crew members may request                        prevent nationals from returning in                  Congress amended 46 U.S.C. 8103 to
                                        spiritual guidance or religious services                    safety.                                              permit an alien allowed to be employed
                                        when their vessel docks at a port in the                       TPS beneficiaries are not required to             in the U.S. under the Immigration and
                                        United States, and religious workers in                     leave the United States and may obtain               Nationality Act who meets additional
                                        valid R–1 status should be permitted to                     work authorization for the initial TPS               requirements for service as a steward
                                        apply for a TWIC to board the vessel.                       period and for any extensions of the                 aboard large passenger vessels to obtain
                                        Seafarer Welfare Advocates are eligible                     designation. TPS does not automatically              an MMD. Since all MMD holders must
                                        for TWICs as long as they meet the                          lead to permanent resident status. A                 obtain a TWIC, we have extended this
                                        TWIC rulemaking eligibility                                 TPS designation may be effective for a               statutory requirement to TWIC as well.
                                        requirements; however, there are no                         minimum of 6 months and a maximum                    Individuals who would satisfy the
                                        exemptions for aliens holding R–1 visas.                    of 18 months. Before the end of the TPS              statutory requirements would most
                                        We believe that individuals with R–1                        designation period, the conditions that              likely, if not always, possess a C–1/D
                                        visas can be escorted because any                           gave rise to the TPS designation are                 Crewman Visa. The C–1/D visa has been
                                        individual providing religious services                     reviewed. Unless a determination is                  added to the list of acceptable restricted
                                        to crew members on a vessel would be                        made that those conditions are no                    nonimmigrant visas.
                                        on board the vessel for relatively short                    longer met, the TPS designation will be                 Table 2 indicates the types of visas
                                        periods of time and would most likely                       extended for 6, 12, or 18 months. If the             that a lawful nonimmigrant with a
                                        be in the company of TWIC holders                           conditions that led to the TPS                       restricted visa must hold in order to
                                        during that time. While we do not                           designation are no longer met, the TPS               demonstrate eligibility to apply for a
                                        believe that these individuals need to                      designation is terminated. Designations,             TWIC.

                                                               TABLE 2.—TYPES OF VISAS THAT A NONIMMIGRANT WITH A RESTRICTED VISA MUST HOLD
                                             Visa            Nonimmigrant classifications                                                   Description/information

                                        C–1/D ........     Combined Transit and Crew-               For alien crewmen serving in good faith in a capacity required for normal operation and service
                                                             man Visa.                                on board a vessel who intends to land temporarily and solely in pursuit of his calling as a
                                                           8 CFR 214.2(c)(D) ....................     vessel crewman.
                                        E–1 ............   Treaty Trader (see 8 CFR                 For nationals of a country with which the United States maintains a treaty of commerce and
                                                             214.2(e)(1)).                            navigation who is coming to the United States to carry on substantial trade, including trade in
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                                                                                                      services or technology, principally between the United States and the treaty country, or to de-
                                                                                                      velop and direct the operations of an enterprise in which the national has invested. The em-
                                                                                                      ployee must intend to depart the United States upon the expiration or termination of E–1 sta-

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                                                            Federal Register / Vol. 72, No. 16 / Thursday, January 25, 2007 / Rules and Regulations                                             3505

                                                      TABLE 2.—TYPES OF VISAS THAT A NONIMMIGRANT WITH A RESTRICTED VISA MUST HOLD—Continued
                                             Visa            Nonimmigrant classifications                                                    Description/information

                                        E–2 ............   Treaty Investor (see 8 CFR                An alien employee of a treaty investor, if otherwise admissible, may be classified as E–2 if the
                                                             214.2(e)(2)).                             employee is in or is coming to the United States to engage in duties of an executive or super-
                                                                                                       visory character, or, if employed in a lesser capacity, the employee has special qualifications
                                                                                                       that make the alien’s services essential to the efficient operation of the enterprise. The em-
                                                                                                       ployee must have the same nationality as the principal alien employer. In addition, the em-
                                                                                                       ployee must intend to depart the United States upon the expiration or termination of E–2 sta-
                                        E–3 ............   Australian in Specialty Occupa-           The E–3 is a new visa category only for Australians coming to the U.S. to work temporarily in a
                                                             tion.                                     specialty occupation.
                                        H–1B .........     Specialty Occupations (see 8              Persons who will perform services in a specialty occupation which requires theoretical and prac-
                                                             CFR 214.2(h)(4)).                         tical application of a body of highly specialized knowledge and attainment of a baccalaureate
                                                                                                       or higher degree or its equivalent (in the specialty) as a minimum requirement for entry into
                                                                                                       the occupation in the US.
                                        H–1B1 .......      Free Trade Agreement (FTA)                Foreign nationals of countries which have Free Trade Agreements with the United States and
                                                             Professional Visa (H–1B1).                are engaged in a specialty occupation are eligible for the H–1B1 FTA Professional Visa [Free
                                                                                                       Trade Agreement (FTA) Professional Visa]. A U.S. employer must furnish a job letter speci-
                                                                                                       fying the details of the temporary position (including job responsibilities, salary and benefits,
                                                                                                       duration, description of the employing company, qualifications of the applicant) and confirming
                                                                                                       the employment offer.
                                        L–1 ............   Executive, managerial ...............     An alien who within the preceding three years has been employed abroad for one continuous
                                                                                                       year by a qualifying organization may be admitted temporarily to the United States to be em-
                                                                                                       ployed by a parent, branch, affiliate, or subsidiary of that employer in a managerial or execu-
                                                                                                       tive capacity, or in a position requiring specialized knowledge.
                                        O–1 ...........    Extraordinary Ability or Achieve-         An alien who has extraordinary ability in the sciences, arts, education, or athletics, which has
                                                             ment.                                     been demonstrated by sustained national or international achievement.
                                        TN .............   North American Free Trade                 The nonimmigrant NAFTA Professional (TN) visa allows citizens of Canada and Mexico, as
                                                             Agreement (NAFTA) visas for               NAFTA professionals, to work in the United States.
                                                             Canadians and Mexicans.
                                        M–1 ...........    Vocational student ....................   This visa category is for a fixed time needed to complete the course of study and training. For
                                                                                                       purposes of the final rule, only students who are attending the U.S. Merchant Marine Acad-
                                                                                                       emy or comparable State maritime school and hold this visa are permitted to apply for a

                                           We are making an additional change                        require Canadian citizenship or in some              completed rehabilitation successfully
                                        to the application information required                      cases, lawful presence, when issuing a               would be critical to TSA’s
                                        of TWIC applicants who are not U.S.                          drivers license. Therefore, we do not                determination on the waiver request.
                                        nationals. In 49 CFR 1572.17, we are                         believe it is advisable to issue a TWIC              The individual may no longer use illegal
                                        requiring all aliens to bring to                             based solely on a Canadian driver’s                  drugs or drink alcohol, but technically
                                        enrollment the documents that verify                         license. We are not requiring this of                they may still have an addiction.
                                        the immigration status they are in as of                     Mexican-licensed drivers who apply for               Therefore, we believe TSA should
                                        the date of enrollment. We will examine                      a TWIC because they must obtain border               decide these waiver requests on a case-
                                        the documents to ensure that the                             crossing documents to enter the United               by-case basis. The documentation
                                        applicant is eligible to apply for a TWIC                    States, which are issued after the                   submitted to TSA in support of the
                                        under the immigration standards and                          Mexican government has completed a                   waiver request will be very important in
                                        then scan the documents into the TSA                         review of the individual and determined              making the waiver determination.
                                        system so that they become part of the                       they are Mexican citizens or are                     Applicants and/or their representatives
                                        enrollment record.                                           lawfully present in Mexico.                          should carefully consider and include
                                           In addition, we are requiring drivers                                                                          all available information TSA can use to
                                        with commercial licenses from Canada                         (e). Mental Incapacity                               determine if the applicant poses a
                                        to provide a Canadian passport at                               TSA is changing the waiver process to             security threat.
                                        enrollment, if they do not hold a Free                       permit applicants who in the past have
                                        and Secure Trade (FAST) card 6. We                                                                                (f). Fees
                                                                                                     been involuntarily committed to a
                                        know that Canadian TWIC applicants                           mental health facility or declared                      Section 520 of the 2004 DHS
                                        who hold a FAST card have completed                          mentally incapable of handling their                 Appropriations Act, Pub. L. 108–90,
                                        a thorough background check by the                           affairs to apply for a waiver without                requires TSA to collect reasonable fees
                                        Canadian government. However,                                always having to provide                             for providing credentialing and
                                        Canadian provinces do not always                             documentation showing that the                       background investigations in the field of
                                                                                                     disqualifying condition is no longer                 transportation. Fees may be collected to
                                          6 The FAST program is a cooperative effort
                                                                                                     present, as we have previously. For                  pay for the costs of: (1) Conducting or
                                        between the Bureau of Customs and Border Patrol
                                        (CBP) and the governments of Canada and Mexico
                                                                                                     example, there may be cases in which                 obtaining a CHRC; (2) reviewing
                                        to coordinate processes for the clearance of                 an individual has an addiction to drugs              available law enforcement databases,
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                                        commercial shipments at the U.S.-Canada and U.S.-            or alcohol and is involuntarily                      commercial databases, and records of
                                        Mexico borders. Participants in the FAST program,            committed to a mental health facility to             other governmental and international
                                        which requires successful completion of a
                                        background records check, may receive expedited
                                                                                                     complete rehabilitation. If the                      agencies; (3) reviewing and adjudicating
                                        entrance privileges at the northern and southern             individual wishes to apply for a waiver,             requests for waivers and appeals of TSA
                                        borders.                                                     documents showing that applicant                     decisions; and (4) other costs related to

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                                        3506                    Federal Register / Vol. 72, No. 16 / Thursday, January 25, 2007 / Rules and Regulations

                                        performing the security threat                                                • Full Card Production/Security                             $22. TSA proposed that the Reduced
                                        assessment or the background records                                       Threat Assessment (STA) Segment                                TWIC Fee be set at $95–115, including
                                        check, or providing the credential.                                        (referred to as the ‘‘Threat Assessment/                       the Enrollment Segment of $45–65 and
                                        Section 520 requires that any fee                                          Credential Production Fee’’ in the                             the Reduced Card Production/STA
                                        collected must be available only to pay                                    NPRM), and                                                     Segment of $50.7 TSA proposed that the
                                        for the costs incurred in providing                                           • FBI Segment (referred to as the ‘‘FBI                     Card Replacement Fee, composed of the
                                        services in connection with performing                                     Fee’’ in the NPRM).                                            Card Replacement Segment, be set at
                                        the security threat assessment, or the                                        The Reduced TWIC Fee is the fee an                          $36. See 71 FR at 29405, 29428–29431.
                                        background records check, or providing                                     applicant would pay to obtain a TWIC                              In this final rule, TSA establishes the
                                        the credential. The funds generated by                                     when the applicant has undergone a                             Standard TWIC Fee at $139–159,
                                        the fee do not have a limited period of                                    comparable threat assessment in                                including the Enrollment Segment of
                                        time in which they must be used. They                                      connection with an HME, a FAST card,                           $45–65, the Full Card Production/STA
                                        can be used until they are fully spent.                                    or other threat assessment, as provided                        Segment of $72, and the FBI Segment of
                                        TSA has also established the fees in this                                  in § 1572.5(e), or holds an MMD or                             $22.8 The total Reduced TWIC Fee is set
                                        final rule pursuant to the requirements                                    License as provided in § 1572.19(b). The                       at $107–127, including the Enrollment
                                        of the General User Fee Statute (31                                        Reduced TWIC fee is made up of the                             Segment of $45–53 and the Reduced
                                        U.S.C. 9701), which requires fees to be                                    following segments:                                            Card Production/STA Segment of $62.
                                        fair and based on: (1) Costs to the                                           • Enrollment Segment, and                                      In this final rule, TSA establishes the
                                        government; (2) the value of the service                                      • Reduced Card Production/STA                               Replacement Card Fee of $36, as was in
                                        or thing to the recipient; (3) public                                      Segment (referred to as the ‘‘reduced fee                      the NPRM. TSA’s analysis shows that
                                        policy or interest served; and (4) other                                   for the Security Threat Assessment/                            this fee is costed out at $60, but is not
                                        relevant facts.                                                            Credential Production Fee’’ in the                             including that amount in the final rule
                                                                                                                   NPRM).                                                         due to the large difference in amount
                                           In this final rule, TSA uses slightly                                      The Card Replacement Fee is the fee                         from the NPRM. TSA proposes in this
                                        different terminology to describe the                                      that an applicant would pay to replace                         final rule to change the Replacement
                                        three types of fees and their segments                                     a credential that has been lost, stolen, or                    Card Fee to $60 based on the
                                        than was used in the NPRM. The                                             damaged and is made up of the Card                             reevaluation of costs elements discussed
                                        Standard TWIC Fee is the fee that an                                       Replacement Segment.                                           below, and requests comments only on
                                        applicant would pay to obtain or renew                                        In the TWIC NPRM, TSA proposed to                           this fee. See Request for Comments in
                                        a TWIC. The Standard TWIC Fee                                              set the Standard TWIC Fee at $129–149,                         Section VI.
                                        contains the following segments:                                           including the Enrollment Segment of                               Table 3 compares the NPRM per
                                           • Enrollment Segment (referred to as                                    $45–65, the Full Card Production/                              person fee and segments amounts to the
                                        the ‘‘Information Collection/Credential                                    Security Threat Assessment (STA)                               final rule per person fee and segments
                                        Issuance Fee’’ in the NPRM),                                               Segment of $62, and the FBI Segment of                         amounts:

                                                                                    TABLE 3.—TWIC PER PERSON FEE SEGMENTS—NPRM VS. FINAL RULE
                                                                                                                                                                    NPRM          Final rule        $ Increase        % Increase

                                                                          Standard TWIC Fee
                                        Enrollment Segment ........................................................................................                  $45–$65         $45–$65
                                        Full Card Production/STA Segment (for Individuals requiring a full STA) ......                                                    62              72                  $10
                                        FBI Segment: ...................................................................................................                  22              22

                                            Total ..........................................................................................................         129–149         139–159                   10          7.86–6.7
                                                                               Reduced TWIC Fee
                                        Enrollment Segment ........................................................................................                    45–65              45–65
                                        Reduced Card Production/STA Segment (for Individuals not requiring a full
                                          STA): ............................................................................................................               50                  62              12

                                            Total ..........................................................................................................          95–115         107–127                   12         12.6–10.4
                                                                            Card Replacement Fee
                                        Card Replacement Segment ...........................................................................                               36              60 9                24               66.7

                                           No applicant will be required to pay                                    components that were used to calculate                         Table 4 lists the cost components of the
                                        a fee until after TSA publishes this                                       the final fees. However, the fees                              TWIC Program as estimated for the
                                        notice in the Federal Register.                                            themselves have changed for the reasons                        NPRM and compares them to the costs
                                        Cost Components                                                            described in this section. Since                               estimated for the final rule. These cost
                                                                                                                   publication of the NPRM, the TWIC                              components are used to derive the
                                          The NPRM identified the cost                                             program has reevaluated the cost                               TWIC fees that must be collected to
                                        components from which the proposed                                         estimates that drive the TWIC fees.                            fully recover program costs.
                                        fees were calculated. These are the same
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                                          7 While the proposed rule text at § 1572.503(2)                          fee at $50. The total for this fee was correctly stated          9 While this rule sets a Card Replacement Fee of

                                        indicated that the Reduced TWIC Fee included both                          in the preamble as $95. See 98 FR at 29045.                    $36, TSA is proposing that the Card Replacement
                                        the Enrollment Segment and the Reduced Card                                  8 If the FBI changes its fee in the future, TSA will         Fee be increased to $60 and is seeking comment
                                        Production/STA Segment, it erroneously listed the                          collect the amended fee.                                       only on the Card Replacement Fee. See Request for
                                                                                                                                                                                  Comments Section VI.

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                                                               Federal Register / Vol. 72, No. 16 / Thursday, January 25, 2007 / Rules and Regulations                                                              3507

                                                                             TABLE 4.—5-YEAR TOTAL TWIC COST COMPONENTS—NPRM VS. FINAL RULE
                                                                                                                                                 Percent           Standard           Reduced          Card replace-
                                                       Cost components                                 NPRM                 Final rule           change            TWIC fee           TWIC fee           ment fee

                                        Enrollment/Issuance .............................             $65,212,285           $65,980,199                    1           X                  X                     X10
                                        Threat Assessments 11 ........................                 42,463,118            32,120,927                  ¥24           X                 X 12          ........................
                                        IDMS ....................................................      18,783,000            44,190,882                  135           X                  X                       X
                                        Card Production ...................................            20,427,000            28,346,657                   39           X                  X                       X
                                        Program Support ..................................             22,641,000            18,810,786                  ¥17           X                  X                       X

                                              Total ..............................................    169,526,403           189,449,451                    12

                                           As shown by Table 4, some of the cost                          enrollment, additional shifts were                       Assessments,13 IDMS, Card Production,
                                        components decreased from the NPRM                                required at the card production facility.                and Program Support. Note that the
                                        costs estimates, while some increased.                            This decision was made in order to                       IDMS, Card Production, Program
                                        The Enrollment/Issuance cost                                      address comments to the NPRM that                        Support cost components makeup the
                                        component increased by approximately                              cards needed to be produced as quickly                   Card Production/STA and FBI segments
                                        1 percent due to further analysis that                            as possible. Second, TSA and Coast                       of the Standard and Reduced TWIC
                                        indicated a need to account for the                               Guard received comments to the NPRM                      Fees. The net increase in the total for
                                        contractor fee associated with replacing                          on the need to support contactless                       the Standard TWIC Fee is based
                                        a lost, stolen, or damaged card. This                             biometric authentication based on the                    primarily on the increase of the IDMS
                                        contractor fee is estimated at $5. This                           harsh conditions of the maritime                         and Card Production cost components,
                                        card re-issuance cost within the Card                             environment and operational                              as described above in the analysis of the
                                        Replacement Fee was not included as                               efficiencies. In order to address these                  TWIC cost components.
                                        part of the NPRM estimate.                                        comments TSA and the Coast Guard                            The per person cost segments for the
                                           The Threat Assessments cost                                    have established a NMSAC working                         Reduced TWIC Fee are also derived
                                        component decreased overall by                                    group to recommend a contactless TWIC                    from five of the cost components in the
                                        approximately 24 percent. While the                               technology specification. Second, we                     Total TWIC Cost Components Table 4—
                                        costs associated with adjudication by                             have added a fee to cover future                         Enrollment/Issuance, Threat
                                        ALJs have been added, cost reductions                             technology-related product                               Assessments,14 IDMS, Card Production,
                                        for perpetual vetting and threat                                  improvements to the TWIC system and                      and Program Support. The net increase
                                        assessment gateway account for the                                credential. Technology improvements                      in the Reduced TWIC Fee is based on
                                        overall reduction.                                                occur rapidly and in order to take                       the reevaluation of the cost components,
                                           The IDMS cost component increased                              advantage of the efficiency these                        as described in the analysis of the TWIC
                                        based on a re-evaluation of the overall                           improvements provide, we must plan                       cost components above. It should be
                                        IDMS costs. The program office                                    for that cost. Building in the cost of                   noted that the reduced fee does not
                                        identified: (1) The need to increase the                          technology and system improvements is                    include the entire Threat Assessments
                                        hardware and software required to                                 a common practice for programs that                      cost component. Because the Reduced
                                        obtain a Security Certification &                                 rely so heavily on software and                          TWIC Fee does not include this entire
                                        Accreditation, and to support the full                            hardware to collect and transmit large                   cost component, this fee does not
                                        volume of TWIC applicants; (2) system                             amounts of information.                                  entirely benefit from the reduction in
                                        changes required to address security                                 The Program Support cost decreased                    the Threat Assessments cost component,
                                        vulnerabilities; and (3) increases in                             by approximately 17 percent because                      and therefore, increased at a greater
                                        contractor support necessary for systems                          the program office reevaluated and                       percentage than the Standard TWIC Fee.
                                        operations and maintenance. The total                             decreased program staffing levels                           The per person cost for the Card
                                        increase is estimated at $19 per                                  required to support the maritime                         Replacement Fee is derived from four of
                                        credential produced.                                              population after the initial maritime                    the cost components in the Total TWIC
                                           The Card Production cost increased                                                                                      Cost Components Table 4—Enrollment/
                                                                                                          enrollment period. Additionally,
                                        by approximately 39 percent based on                                                                                       Issuance,15 IDMS, Card Production, and
                                                                                                          Program Support costs related to
                                        two factors. First, in order to produce                                                                                    Program Support. The net increase in
                                                                                                          interagency communication
                                        cards more rapidly during the initial                                                                                      the Card Replacement Fee of $24 is
                                                                                                          requirements also decreased. These cost
                                                                                                          reductions resulted in approximately a                   based on the reevaluation of the cost
                                          10 While the majority of the Enrollment/Issuance
                                                                                                          $2 per card decrease.                                    components, as described in the
                                        requirements have already been satisfied by the
                                        applicant through initial enrollment, there are still                The discussion below describes the                    analysis of TWIC cost components
                                        some enrollment/issuance functions associated                     cost components associated with each
                                        with these card replacements, such as overhead.                                                                               13 The Threat Assessment cost component

                                        Therefore, these applicants will not be burdened
                                                                                                          type of fee, Standard, Reduced and Card                  includes the FBI Segment of the Standard TWIC
                                        with the normal enrollment/issuance cost                          Replacement. Although the overall                        Fee.
                                        component.                                                        program costs increased by                                  14 As stated in footnote 11, although the majority
                                          11 The Threat Assessments, IDMS, Card
                                                                                                          approximately 12 percent, the three                      of the Threat Assessment requirements have already
                                        Production and Program Support Components                         types of TWIC fees did not increase by                   been satisfied by the applicant through
                                        makeup the Card Production/STA and the FBI                                                                                 participation in a previous security fee, there are
                                        Segments.                                                         12 percent as each fee is composed of                    still some threat assessement functions associated
                                          12 While the majority of the Threat Assessment                  different cost components.                               with these applicants.
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                                        requirements have already been satisfied by the                      The per person cost segments for the                     15 As stated in footnote 10, although the majority

                                        applicant through participation in a previous                     Standard TWIC Fee are derived from all                   of the Enrollment/Issuance requirements have
                                        security fee, there are still some threat assessment                                                                       alread been satisfied by the applicant through
                                        functions associated with these applicants, such as
                                                                                                          five of the cost components in the Total                 initial enrollment, there are still some enrollment/
                                        CSOC activities. Therefore, these applicants will                 TWIC Cost Components table above—                        issuance functions associated with these card
                                        pay the Reduced Card Productions/STA Segment.                     Enrollment/Issuance, Threat                              replacements, such as overhead.

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                                        3508                Federal Register / Vol. 72, No. 16 / Thursday, January 25, 2007 / Rules and Regulations

                                        above. It should be noted that this fee                   background check that is similar to that               D. Anticipated Future Notices and
                                        does not include the entire Enrollment/                   of a U.S. hazmat driver.                               Rulemaking
                                        Issuance cost component or any of the                        In this final rule, for administrative
                                                                                                  purposes, we are reprinting the entire                 1. Notices
                                        Threat Assessments cost component.
                                        Because this fee does not include the                     part 1572. We are making only a couple                   We will publish several notices in the
                                        Threat Assessments cost component,                        of changes to § 1572.203, however. We                  Federal Register to facilitate
                                        this fee does not benefit from the                        are changing its title to more clearly                 implementation of the TWIC program.
                                        reduction in the Threat Assessments                       reflect its scope, to ‘‘Transportation of              Specifically, a notice will be published:
                                        cost component. Thus, the Card                            explosives from Canada to the United                     (a) establishing the fees for the TWIC,
                                        Replacement Fee has increased at a                        States via railroad carrier.’’ In                      as stated above in C.2(f);
                                        greater percentage than the Standard                      § 1572.203(b) we are changing the                        (b) for each COTP zone, prior to
                                        and Reduced TWIC Fees. Because this                       definition of ‘‘Customs Service’’ to                   beginning the enrollment period; and
                                        fee is substantially higher than that in                  ‘‘Customs and Border Protection (CBP)’’                  (c) for each COTP zone, 90-days prior
                                        the NPRM, TSA is establishing $36 as                      to reflect the reorganization of the U.S.              to requiring compliance with these
                                        the fee in this rule but is proposing to                  Customs Service under the Homeland                     regulations.
                                        increase the fee to $60 and is providing                  Security Act of 2002.
                                        the public an opportunity to submit                                                                              2. Rulemaking
                                                                                                  (h). Compliance and Enforcement
                                        additional comments on the card                                                                                    In the future we will issue another
                                        replacement fee. See Request for                                                                                 NPRM to propose card reader
                                        Comments in Section VI.                                      We are adding a new section. (49 CFR                requirements for MTSA-regulated
                                                                                                  1570.7) to make it clear that it is a                  vessels and facilities. It will be issued
                                        An Additional Notice on Fees                              violation of this rule, and other                      with a comment period that is long
                                          As Table 3 indicates, the Enrollment                    applicable federal laws, to circumvent                 enough for all interested persons to
                                        Segment is a range of $45–$65 for both                    or tamper with the access control                      reasonably be able to provide comment,
                                        the NPRM and the final rule. TSA is                       procedures. This section also clarifies                and it will announce public meetings in
                                        unable to finalize the fee because we do                  that it is a violation for any person to               a variety of places. We cannot, at this
                                        not yet have a final contract with an                     use or attempt to use a credential that                time, make any definitive statement on
                                        enrollment provider. When a final                         was issued to, or a security threat                    where those places will be, but we will
                                        contract is executed, TSA will publish                    assessment conducted for, another                      consider the locations suggested by
                                        a Notice in the Federal Register that                     person. In addition, no person may                     commenters and inform the public of
                                        will specify the amount for that segment                  make, cause to be made, use, or cause                  upcoming meeting information in
                                        and all of the fees. Therefore, the rule                  to use, a false or fraudulently-created                advance in the Federal Register.
                                        text does not contain TSA’s exact fee                     TWIC or security threat assessment
                                        numbers, but it does include the FBI fee.                 issued or conducted under this                         E. Summary of TWIC Process Under the
                                        No applicant will be required to pay a                    subchapter. Finally, it is a violation of              Final Rule
                                        fee until after TSA publishes this notice                 this rule, and other applicable federal                   The TWIC program was developed to
                                        in the Federal Register.                                  laws, for any person to cause or attempt               improve identity management and
                                                                                                  to cause another person to violate these               credentialing shortcomings that exist in
                                        (g). Drivers Licensed in Mexico and
                                                                                                  procedures. Violations of any provision                segments of the transportation industry.
                                        Canada Transporting Hazardous
                                                                                                  of this rule may be subject to such civil,             TSA evaluated a variety of technologies,
                                                                                                  criminal or administrative actions as are              used field testing, and to the extent
                                           In accordance with sec. 7105 of                        authorized under federal law.                          possible, incorporated the basic tenets
                                        SAFETEA–LU, commercial motor                                 Note that the acts identified in                    of Homeland Security Presidential
                                        vehicle drivers licensed in Canada or                     § 1570.7 may also be violations of                     Directive 12 (HSPD–12) 17 to arrive at
                                        Mexico may not transport hazardous                        Federal criminal law, such as 18 U.S.C.                the credential and enrollment process
                                        materials into or within the United                       701 (Official badges, identification                   implemented in this program. The
                                        States unless they undergo a                              cards, other insignia), 18 U.S.C. 1001                 standards for the program are to ensure
                                        background check that is similar to that                  (Statements or entries generally), 18                  that the credentialing processes: (1) Are
                                        undergone by U.S.-licensed drivers.16                     U.S.C. 1028 (Fraud and related activity                administered by accredited providers;
                                        TSA has determined that a card issued                     in connection with identification                      (2) are based on sound criteria for
                                        by the Bureau of Customs and Border                       documents and information), 18 U.S.C.                  verifying an individual’s identity; (3)
                                        Protection (CBP) under the FAST                           1029 (Fraud and related activity in                    include a credential that is resistant to
                                        program provides a similar background                     connection with access devices). In                    fraud, tampering, counterfeiting and
                                        check. See 71 FR 44874 (August 7,                         appropriate cases, TSA will refer to the               terrorist exploitation; and (4) ensure that
                                        2006). The security threat assessment                     Department of Justice (DOJ) matters for                the credential can be quickly and
                                        that is required under this final rule for                criminal investigation and, if                         electronically authenticated.
                                        issuance of a TWIC is the same                            appropriate, criminal prosecution.                        The purpose of the TWIC program is
                                        background check currently required for                      Section 1570.9 is being added to make               to ensure that only authorized personnel
                                        U.S.-licensed drivers with HMEs.                          clear that a person must allow his or her              who have successfully completed a
                                        Therefore, we are amending 49 CFR                         TWIC to be inspected upon request of                   security threat assessment have
                                        1572.201 to allow possession of a TWIC                    an appropriate official. For clarification             unescorted access to secure areas of
                                        card by a driver licensed in Mexico or                    purposes, Coast Guard has provided a                   maritime facilities and vessels. The
                                        Canada to satisfy the SAFETEA–LU                          similar requirement in 33 CFR                          credential will include a reference
                                        requirement. Thus, drivers licensed in                    101.515(d) adopting the same language                  biometric that securely links the
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                                        Canada or Mexico may obtain either a                      as § 1570.9.                                           credential holder to the issued
                                        FAST card or a TWIC to meet the                              As discussed in section C.4. of this
                                        requirement that they have a                              preamble, § 1570.11, Compliance,                         17 HSPD–12 requires Federal agencies and their
                                                                                                  inspection, and enforcement, was                       contractors to adopt an identity management and
                                          16 49   U.S.C. 5103a(h).                                proposed in the NPRM as § 1572.41.                     credentialing system that uses biometrics.

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                                                         Federal Register / Vol. 72, No. 16 / Thursday, January 25, 2007 / Rules and Regulations                                            3509

                                        credential. At any time, TWIC holders                   information is revealed, however, TSA                      At the enrollment center, applicants
                                        may be asked to confirm that they are                   cannot guarantee that such information                  who pre-enroll must provide documents
                                        the rightful owner of the credential by                 will be favorably resolved and a threat                 to verify their identity, confirm that the
                                        matching their biometric to the one                     assessment completed in less than 30                    information provided during pre-
                                        stored on the credential. An individual’s               days.                                                   enrollment is correct, submit biometrics
                                        credential is revoked by TSA if                           Applicants are encouraged to ‘‘pre-                   identifiers, and sign the enrollment
                                        disqualifying information is discovered                 enroll’’ online to reduce the time                      documents. At the enrollment center, all
                                        or the credential is lost, damaged or                   needed to complete the entire                           applicants will receive a privacy notice
                                        stolen. When a credential is revoked,                   enrollment process at an enrollment                     and consent form, by which they agree
                                        TSA lists it on the list of revoked cards,              center. The convenience of pre-                         to provide personal information for the
                                        or ‘hotlist’ by the unique serial number                enrollment is a significant benefit for                 security threat assessment and
                                        assigned to the credential. Therefore, a                applicants and reduces strain on the                    credential. (For applicants who pre-
                                        revoked credential that is compared                     enrollment centers. The pre-enrollment                  enroll, the privacy notice is provided
                                        against the hotlist will be flagged and                 process allows applicants to provide                    with the application on-line, but the
                                        access would not be granted.                            much of the biographic information                      applicant must acknowledge receipt of
                                          TSA has designed the TWIC process                                                                             the notice in writing at the enrollment
                                                                                                required for enrollment and to select an
                                        to maintain strict privacy controls so                                                                          center.) If an applicant fails to sign the
                                                                                                enrollment center where they wish to
                                        that a holder’s biographic and biometric                                                                        consent form or does not have the
                                                                                                complete enrollment. While pre-
                                        information cannot be compromised.                                                                              required documents to authenticate
                                                                                                enrolling, applicants may schedule an
                                        The TWIC process implemented in this                                                                            identity, enrollment will not proceed.
                                                                                                appointment to complete enrollment at
                                        rule is described below from the                                                                                   All information collected at the
                                                                                                an enrollment center, although
                                        perspective of an applicant.                                                                                    enrollment center or during the pre-
                                                                                                appointments are not required at
                                                                                                                                                        enrollment process, including the
                                        1. Pre-Enrollment and Enrollment                        enrollment centers. For pre-enrollment,
                                                                                                                                                        signed privacy consent form and
                                           TWIC enrollment will be conducted                    applicants may use a personal computer                  identity documents, is scanned into the
                                        by TSA or TSA’s agent operating under                   with access to the internet or they may                 TSA system for storage. All information
                                        TSA’s direction. These personnel are                    use TWIC kiosks. The TWIC kiosks will                   is encrypted or stored using methods
                                        known as Trusted Agents. All Trusted                    be set up by the TSA agent when                         that protect the information from
                                        Agents must successfully complete a                     enrollment begins at locations                          unauthorized retrieval or use. If an
                                        TSA security threat assessment and                      convenient to the affected population,                  enrollment center temporarily loses its
                                        receive extensive training before they                  including enrollment centers, and are                   internet connection, the enrollment data
                                        are authorized to access documents,                     similar to an ATM machine.                              is encrypted and stored on the
                                        systems, or secure areas.                                 The Web address for pre-enrollment                    enrollment workstation, but only until
                                           DHS will publish a notice in the                     and all additional information relating                 an internet connection is restored.
                                        Federal Register indicating when                        to the TWIC program is                        Applicants will provide fingerprints
                                        enrollment at a specific location will                  twic. The TWIC Web site also will list                  from each hand and sit for a digital
                                        begin and when it is expected to                        the documents the applicant must bring                  photograph. We will collect a print from
                                        terminate. Once DHS has published that                  to the enrollment center to verify                      all 10 fingers unless the applicant has
                                        notice, facility and vessel owners/                     identity so that all applicants can be                  lost or seriously injured his or her
                                        operators (owners/operators) must                       properly prepared. Mariners who must                    fingers. TSA will provide alternative
                                        notify workers of their responsibility to               prove U.S. citizenship or immigration                   procedures for enrollment centers to use
                                        enroll into the TWIC program during the                 status to obtain an MMD, license, COR,                  if an applicant cannot provide any
                                        enrollment period. Regarding the                        STCW endorsement or MMC must                            fingerprints. The fingerprints and
                                        compliance date for facilities, DHS will                provide the documents required by the                   photograph will be electronically
                                        also publish this information in the                    Coast Guard at 46 CFR chapter I,                        captured at the enrollment center and
                                        Federal Register for each COTP zone at                  subchapter B at the time of                             made part of the applicant’s TWIC
                                        least 90-days in advance. Owners and                    enrollment.18 TSA will scan these                       enrollment record. The fingerprint
                                        operators are required to inform their                  documents into the enrollment record,                   images collected from each applicant
                                        employees of this date as well. (The                    which will be forwarded to the Coast                    will be submitted to the FBI for the
                                        implementation plan for enrollment is                   Guard. In addition, applicants who are                  CHRC.
                                        discussed in greater detail below.) TSA                 not U.S. citizens or nationals must bring                  The TWIC fee, which covers the cost
                                        and the Coast Guard will work with                      their immigration documents, including                  of enrollment, threat assessment, and
                                        owners/operators to ensure that they                    visas and naturalization paperwork, to                  credential production and delivery, will
                                        can provide applicants sufficient time to               enrollment so that the documents which                  be collected from the applicant at the
                                        enroll, complete the security threat                    prove legal presence in the United                      enrollment center. Payment can be
                                        assessment and any necessary appeal or                  States can be scanned into the                          made by cashier’s check, money order,
                                        waiver process, and obtain the                          enrollment record.                                      or credit card. The TWIC enrollment fee
                                        credential before the applicant is                                                                              is non-refundable, even if the threat
                                        required to present the credential for                    18 In order to allow the Coast Guard to remove the    assessment results in denying a TWIC to
                                        access to a facility or vessel. As TWIC                 requirement that all mariners apply for their           the applicant.
                                        is implemented, owners/operators must                   credentials in person at a Regional Examination            The entire enrollment record
                                        give individuals at least 60 days notice                Center (REC), it is necessary for TSA to document       (including all fingerprints collected)
                                                                                                proof of citizenship, as the citizenship requirements
                                        to begin the enrollment process.                        for certain Coast Guard-issued mariner credentials
                                                                                                                                                        will be transmitted to the TSA system,
                                        Generally, TSA completes a threat                       are stricter than the overall TWIC citizenship          encrypted, and segmented to prevent
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                                        assessment in approximately 10 days                     requirements. For more information on mariner           unauthorized use. The TSA system
                                        when there is no indication that the                    credentials and the Coast Guard’s plan to remove        acknowledges receipt of the enrollment
                                                                                                the physical appearance at an REC requirement, see
                                        applicant may not meet the TWIC                         the Coast Guard SNPRM titled ‘‘Consolidation of
                                                                                                                                                        record, at which time all enrollment
                                        enrollment criteria. If criminal activity               Merchant Mariner Qualification Credentials’’            data is automatically deleted from the
                                        or other potentially disqualifying                      published elsewhere in today’s Federal Register.        enrollment workstation. At this point,

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                                        3510             Federal Register / Vol. 72, No. 16 / Thursday, January 25, 2007 / Rules and Regulations

                                        enrollment data is stored only in the                   Security Threat via U.S. mail, and the                 damaged, he must report this fact by
                                        TSA system, and is stored there as                      TSA system notifies the applicant when                 calling the TWIC Call Center which will
                                        encrypted data. The TSA system                          the credential is ready to be retrieved                be open 24 hours per day, 7 days a
                                        contains many feedback mechanisms to                    from the enrollment center.                            week. TSA will post the Call Center
                                        validate the transmission and receipt of                Notifications from the TSA system that                 number on the TWIC web site as soon
                                        data at key points in the process. The                  a credential is ready for pick-up will be              as it is available, and it will be posted
                                        status of each transmission is recorded                 through e-mail or voice mail, depending                at all enrollment centers and kiosks. The
                                        within the system.                                      on the preference the applicant                        Center follows a standard process to
                                           As discussed in the TWIC NPRM (71                    expresses on the application.                          revoke the credential, and order printing
                                        FR 29402), during TSA’s Prototype                          If TSA determines that the applicant                and transmission of a replacement. TSA
                                        testing phase of the program, the                       is not qualified, TSA sends an Initial                 adds the lost, damaged or stolen
                                        average time needed for an applicant                    Determination of Threat Assessment to                  credential to the ‘hotlist,’ which
                                        who pre-enrolled to complete                            the applicant via U.S. mail, with                      includes the Smart Card number of all
                                        enrollment was 10 minutes, 21 seconds.                  information concerning the nature of the
                                                                                                                                                       credentials that TSA has revoked.
                                        TSA expects that it will take                           disqualification, and how the applicant
                                                                                                                                                       Applicants must pay a fee of $3619 to
                                        approximately fifteen minutes to                        may appeal the determination or apply
                                                                                                                                                       cover the cost of invalidating the
                                        complete enrollment of applicants who                   for a waiver of the standards. If the
                                        do not pre-enroll.                                                                                             previous credential, production of a
                                                                                                applicant proceeds with an appeal or
                                           TSA and Coast Guard plan to use a                                                                           replacement credential, shipping, and
                                                                                                application for waiver that is successful,
                                        phased enrollment approach based on                     TSA will notify the applicant                          other appropriate program costs. The
                                        risk assessment and cost/benefit                        accordingly and the credential                         reissued TWIC will have the same
                                        analysis to implement the program                       production process begins. (The appeal                 expiration date as the lost/damaged/
                                        nationwide. Locations that are                          and waiver processes are discussed in                  stolen TWIC.
                                        considered critical and provide the                     greater detail below in the discussion of              6. Renewal
                                        greatest number of individual applicants                49 CFR part 1515.)
                                        will be among the earliest enrollment                                                                             TWICs issued under this rule remain
                                        sites. As stated above, TSA will publish                3. Credential Production and Delivery
                                                                                                                                                       valid for a period of five years, unless
                                        a notice in the Federal Register                           If the applicant is deemed by TSA to                renewed before the five-year term ends.
                                        indicating when enrollment at a specific                be qualified to receive a TWIC, the TSA                Upon renewal, an applicant receives a
                                        location will begin and when it is                      system generates an order to produce a                 new credential and the old credential is
                                        expected to terminate. In addition, DHS                 credential. The TWIC is produced at a                  invalidated in the TSA System. TSA
                                        will publish a notice in the Federal                    government credential production                       does not plan to notify TWIC holders
                                        Register indicating the compliance date                 facility. The face of the TWIC credential              when their credential is about to expire
                                        for each COTP zone. This notice will be                 contains the applicant’s photograph,                   because the expiration date will be
                                        published at least 90 days prior to the                 name, TWIC expiration date, and a                      displayed on the face of the credential.
                                        compliance date. There are                              unique credential number. In addition,                 To renew a TWIC, the holder must
                                        approximately 130 locations where TSA                   the credential will store a reference                  appear at any enrollment center, at least
                                        plans to enroll applicants. TSA and                     biometric, a personal identification                   30 days before expiration, to initiate the
                                        Coast Guard will work closely with the                  number (PIN) selected by the applicant,                renewal process. This will provide
                                        maritime industry to ensure that                        a digital facial image, an expiration date,            sufficient time for TSA to conduct the
                                        owners/operators and workers are given                  and a Federal Agency Smart Credential
                                        as much notice as possible of the                                                                              security threat assessment and the Coast
                                                                                                number. The PIN can subsequently be                    Guard to complete any review necessary
                                        commencement of enrollment at their                     used as an additional security factor in
                                        location. (See the discussion of                                                                               to renew any required mariner
                                                                                                authenticating identity and authorizing
                                        § 1572.19 below for additional                                                                                 documents. During renewal, applicants
                                                                                                use of the credential; or it can be used
                                        information on the timing of                                                                                   must provide the same biographic and
                                                                                                as the primary verification tool if the
                                        enrollment.) TSA will use a                                                                                    biometric information and identity
                                                                                                biometric is inoperative for some
                                        combination of fixed and mobile                                                                                verification documents required in the
                                        enrollment stations to make the                                                                                initial enrollment and pay the
                                        enrollment process as efficient as                      4. Receiving the Credential                            associated fees. Note that the TWIC web
                                        possible for applicants and owners/                        The TSA system will notify the                      site will maintain a list of documents
                                        operators.                                              applicant when the credential is ready,                that may be used to verify identity,
                                                                                                and what if any additional steps the                   which may change over time. A new
                                        2. Adjudication of Security Threat                                                                             credential is issued upon renewal using
                                                                                                applicant must take to receive the
                                        Assessment                                                                                                     the same issuance process as used in the
                                                                                                credential. Once the enrollment and
                                           Following enrollment, the TSA                        issuance process is completed, the                     initial TWIC issuance and the expired
                                        system sends pertinent parts of the                     credential is activated and is ready to be             credential will be invalidated. The
                                        record to various sources so that                       presented at a facility or vessel for use              newly issued credential will have an
                                        appropriate terrorist threat, criminal                  as an access control tool. The TWIC                    expiration date five years from the date
                                        history, and immigration checks can be                  security threat assessment and                         of issuance of the new credential.
                                        performed. When the checks are                          credential are valid for five years, unless            Although renewal only occurs every five
                                        completed, TSA makes a determination                    information is discovered that causes                  years, TSA conducts recurring checks
                                        whether to issue a TWIC to the                          TSA to revoke the credential.                          on individuals throughout the five year
                                        applicant and notifies the applicant of                                                                        period, so that newly-discovered
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                                        that decision. If the applicant is deemed               5. Lost, Damaged, or Stolen TWICs                      information informs the access rights of
                                        to be qualified, the TSA system notifies                   Replacement TWICs are available if a                individuals.
                                        the credential production portion of the                credential is lost, stolen, or damaged. As
                                        system to create a credential. TSA sends                soon as a TWIC holder becomes aware                      19 We request comments on changes to the card

                                        the applicant a Determination of No                     that his credential is missing or                      replacement fee in Section VI below.

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                                        7. Call Center                                          already hold an HME or MMD for an                      workers to start working immediately.
                                          Toll-free TWIC Call Center (Help                      additional threat assessment under                     This final rule is in compliance with
                                        Desk) support will provide around-the-                  TWIC. Rather, TSA will charge a                        this requirement. As explained in detail
                                        clock service for transportation workers,               reduced fee.                                           elsewhere in this preamble, owners or
                                                                                                   New sec. 70105(i) provides                          operators wishing to put their newly
                                        facility operators, and others who
                                                                                                requirements for implementing TWIC                     hired direct employees to work
                                        require assistance. Assistance includes
                                                                                                across the nation by prioritizing the                  immediately, prior to issuance of the
                                        help for pre-enrollment; enrollment; and
                                                                                                ports based on risk, and requires that                 new hire’s TWIC, may do so provided
                                        lost, stolen, or damaged card reporting                 the TWIC program is to be implemented                  that the new hire is successfully
                                        and replacement. Help will also be                      according to the following schedule: (1)               checked against various terrorist
                                        available for scheduling enrollment                     top ten priority ports by July 1, 2007; (2)            databases. The procedure for running
                                        appointments, locating the closest                      the next forty priority ports by January               the new hire’s information through
                                        enrollment facility to an applicant,                    1, 2008; and (3) all other ports by                    these checks can be found in 33 CFR
                                        guiding applicants through the Web-                     January 1, 2009. Under new sec.                        104.267, 105.257, and 106.262.
                                        based pre-enrollment process, and for                   70105(j) each application for a TWIC                      SAFE Port Act sec. 106 states that
                                        checking on the status of a TWIC                        made by someone holding an MMD as                      applicants convicted of treason,
                                        application.                                            of the date of enactment of this bill must             espionage, sedition, and crimes listed in
                                        F. SAFE Port Act of 2006                                be processed by January 1, 2009. We are                chapter 113B of title 18, U.S.C., or
                                                                                                now planning how to meet these                         comparable State laws must be
                                           On October 13, 2006, the Security and                requirements and will establish the                    disqualified from holding a TWIC. The
                                        Accountability for Every Port Act of                    implementation schedule accordingly.                   list of disqualifying crimes in 49 CFR
                                        2006 (SAFE Port Act) (Pub. L. 109–347)                     New sec. 70105(k) requires DHS to                   1572.103 complies with this
                                        was enacted. The portions of the Act                    conduct a pilot program on card readers                requirement by including these crimes
                                        which relate to the TWIC program are                    as set out in that section. DHS is                     as disqualifying.
                                        discussed below.                                        currently analyzing how best to meet
                                           Section 104(a) of the SAFE Port Act                  these requirements, and will begin the                 III. Discussion of Comments
                                        contains a number of amendments to                      pilot program as soon as practicable.                     TSA and the Coast Guard received
                                        the basic requirement in MTSA for                          Under new sec. 70105(m) DHS may                     approximately 1770 comments on the
                                        credentialing codified in 46 U.S.C.                     not require card readers to be placed                  TWIC NPRM during the 45-day
                                        70105. New sec. 70105(g) mandates                       aboard a ship unless the crew’s number                 comment period. In addition, an
                                        concurrent processing by TSA and the                    is in excess of the number determined                  estimated 1200 people attended the four
                                        Coast Guard of an individual’s                          to require a reader or if the Secretary                public meetings that were held between
                                        application for an MMD 20 and a TWIC.                   determines that the vessel is at risk of               May 31 and June 7, 2006. Copies of the
                                        This final rule is in compliance with                   a severe transportation security                       written comments received, as well as
                                        this requirement. TSA will share with                   incident. When DHS drafts the rule that                transcripts of the public meetings, are
                                        the Coast Guard the individual’s CHRC,                  will require use of card readers by                    available to the public on
                                        fingerprints, photograph and proofs of                  vessel owners and operators, it will do       at the public
                                        citizenship and identity, which will                    so in compliance with this requirement.                docket for this rulemaking action.
                                        allow the Coast Guard to begin                             SAFE Port Act sec. 104(b) has                          Numerous commenters supported the
                                        evaluating whether the individual is                    additional amendments to MTSA. It                      concept and purpose of the TWIC
                                        qualified to obtain an MMD while TSA                    revises 46 U.S.C. 70105(b) by adding a                 program as a method of protecting
                                        completes its security threat assessment.               paragraph making clear the Secretary                   national maritime security. Some
                                        TSA will also share the results of their                has the discretion to add to the list of               expressed their support unequivocally.
                                        security threat assessment with the                     those individuals who otherwise may be                 One commenter requested that its port
                                        Coast Guard to ensure that MMDs are                     required to obtain a TWIC. The                         be selected for the first phase of the
                                        only issued to individuals who pass the                 Secretary may apply TWIC requirements                  enrollment and implementation process.
                                        security threat assessment and are                      to individuals including those ‘‘not                   Several commenters who generally
                                        issued a TWIC. Thus, such applicants                    otherwise covered by this subsection’’.                agreed with the idea of the TWIC, also
                                        will only submit one set of fingerprints                TSA has exercised this discretion by                   criticized certain details of the proposal,
                                        and other information relating to                       allowing Canadian and Mexican                          expressed qualifications of various
                                        citizenship, alien status, and criminal                 commercial drivers who transport                       kinds, or said the proposal needed to be
                                        history, which will be used by both TSA                 hazardous materials to obtain TWICs,                   more efficient, workable, and fair. Some
                                        and the Coast Guard.                                    which will allow them to transport                     terminal operators and marine engineers
                                           New sec. 70105(h) requires that                      hazardous materials in the United                      who supported TWIC said that although
                                        applicants who have passed a security                   States. Further, SAFE Port Act sec.                    it would achieve greater maritime
                                        threat assessment for an HME or MMD                     104(b) clarifies in sec. 70105(c) that                 security, they were concerned about its
                                        pay only for the costs associated with                  DHS must establish a waiver and appeal                 burden on industry or noted that
                                        the issuance, production, and                           process for applicants denied a TWIC                   security needed to be balanced against
                                        management of the TWIC and are not                      under sec. 70105(c)(1)(A) or (B)                       fairness for maritime workers. One
                                        charged for the cost of another threat                  (criminal history) or (D) (otherwise                   commenter who generally supported the
                                        assessment. This final rule is in                       poses a security threat). TSA’s new                    implementation of TWIC was concerned
                                        compliance with this requirement in                     process in 49 CFR part 1515 complies                   about the impact of the proposed rules
                                        that TSA will not charge those who                      with this requirement.                                 on the efficiency of port facility
                                                                                                   Under SAFE Port Act sec. 104(c), the                operations, and suggested a more
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                                          20 Although the SAFE Port Act only created this       deadline for final TWIC regulations                    phased and flexible approach. Another
                                        requirement for MMDs, TSA and the Coast Guard           remains January 1, 2007. Further, the                  commenter asked for more of a risk-
                                        have also applied concurrent processing, a longer
                                        time period to apply for an initial TWIC, and
                                                                                                regulation must include a provision for                management approach with a
                                        reduced fees to licenses, CORs, STCW                    an interim check against terrorist                     performance-based set of guidelines and
                                        endorsements, and the MMC.                              watchlist databases so as to enable new                a reevaluated technology. An

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                                        association of maritime operators                       with the TWIC rule, and the rule                       can also verify, on a random basis, the
                                        supported security and background                       schedule should be extended to allow                   validity of the TWICs being used to gain
                                        checks and digital fingerprint and                      time for the collection of more                        entry to vessels and facilities.
                                        photographs, but was concerned about                    information, with public meetings in                      As we began reviewing the comments
                                        the short timeline for implementation,                  more sections of the country, such as                  we received at the public meetings and
                                        the absence of facilities to provide the                the Gulf Coast and Great Lakes ports.                  on the docket, we realized that there
                                        necessary services, and the social and                  One commenter said the rule was                        were some portions of the NPRM that
                                        economic burden imposed on                              skewed toward the issues involving                     were not ready to be implemented. Most
                                        individuals. Another commenter who                      large ports. A U.S. Senator argued that                important among these pieces were the
                                        supported TWIC thought that the                         more information should have been                      card reader and biometric verification
                                        requirements for who must possess a                     collected on the impact of the rule on                 requirements. As a result, we have
                                        TWIC was over inclusive and that                        both the inland barge industry and the                 removed those requirements from the
                                        waivers or exemption processes should                   for-hire passenger excursion boat                      final rule. What remains is the
                                        be added to lower the overall number of                 industry, and an association argued that               requirement to apply for and hold a
                                        people who would require a TWIC. A                      there was little appreciation of the                   TWIC, the threat assessment standards
                                        commenter noted that although                           operational realities of the tugboat,                  to be used when processing TWIC
                                        employers were responsible for                          towboat, and barge industry. Another                   applications, and the reduced access
                                        notifying employees of the TWIC                         commenter saw little reference to the                  control requirements, where the TWIC
                                        requirement, employer sponsorship of                    domestic passenger fleet. Commenters                   is used as a visual identity badge at
                                        the TWIC program was not desirable.                     listed the following organizations that                MTSA-regulated vessels and facilities.
                                           In contrast, many commenters                         they thought should have been                          The Coast Guard intends to integrate the
                                        expressed strong general opposition to                  consulted: the Passenger Vessel                        TWIC requirements into its already
                                        TWIC without providing explicit                         Association, American Waterways                        existing facility and vessel annual
                                        reasons. Some said it was unnecessary                   Operators Association, the Towing                      MTSA compliance exams, as well as
                                        and unjustified, and would not improve                  Safety Advisory Committee, the                         through unannounced security spot
                                        maritime security. Some argued that the                 Merchant Personnel Advisory                            checks to confirm the identity of the
                                        rule would be harmful. These                            Committee, American Petroleum                          TWIC holder using hand-held card
                                        commenters cited concerns that TWIC                     Institute (API), Offshore Mariner Safety               readers.
                                        was not the most effective and economic                 Association (OMSA), and other                             We will initiate a new rulemaking
                                        approach, it would adversely affect                     maritime organizations.                                action after pilot testing TWIC readers
                                        staffing of vessels and port facilities,                                                                       in the maritime environment. Through
                                        and it would cause economic hardship                       We have carefully considered the                    that rulemaking action we will propose,
                                        on the industry and individuals.                        comments submitted and nonetheless                     seek comment on, and finalize the
                                        Commenters also stated that TWIC was                    determined that it is not advisable to                 requirements for card readers. We will
                                        inappropriate for the inland marine                     extend the comment period, nor did we                  also hold public meetings during that
                                        industry, it would harm stevedore/                      hold additional public meetings. We                    rulemaking action, and will consider
                                        terminal operators, and it was an                       considered delaying implementation of                  holding these meetings in any location
                                        unnecessary cost and duplication of                     this entire project but determined that                suggested by commenters. Thus, while
                                        effort where seaport access credentials                 the security risk associated with such a               we determined that it was not in the
                                        are currently in use. One commenter                     delay is not acceptable. While the                     public interest to delay implementation
                                        stated that although the current system                 ‘‘name checks’’ being completed by TSA                 of the TWIC program to allow for an
                                        of licensing and documenting maritime                   under the Notice published by the Coast                extended comment period or additional
                                        personnel is failing or broken, the                     Guard on April 28, 2006 (71 FR 25066)                  public meetings, we will be providing
                                        addition of TWIC will only add                          do provide some security to the ports,                 an additional opportunity for public
                                        additional delays and burden. One                       we need the added layer of security that               participation before owners/operators of
                                        commenter argued that the largest threat                issuing TWICs provides. First, the                     vessels and facilities will have to
                                        existed from foreign vessels, and they                  current name check regime established                  implement the card reader
                                        should not be excluded. Another                         through the Coast Guard Notice checks                  requirements.
                                        commenter found the rule ‘‘large-port-                  names against the terrorist watch lists
                                                                                                and immigration databases. With TWIC,                  B. Coast Guard Provisions
                                        centric’’ and disapproved of this ‘‘one-
                                        size-fits-all’’ approach.                               we will also check an individual’s                     1. Definitions
                                           TSA’s and Coast Guard’s responses to                 criminal history and conduct an
                                                                                                enhanced immigration check. Second,                    (a) Requests To Add Additional
                                        the comments are discussed below.
                                                                                                the interim vetting regime only applies                Definitions
                                        A. Requests for Extension of Comment                    to permanent employees and long-term                      One commenter felt that using the
                                        Period and Additional Public Meetings                   contractors of facilities and                          word ‘‘ensure’’ in the regulations
                                          We received numerous requests to                      longshoremen, whereas the TWIC                         establishes an unreasonable standard of
                                        extend the comment period past the 45                   program provides the benefit of                        care that would require facilities to
                                        days provided in the NPRM. We also                      performing checks on all individuals                   guarantee safety, and expose facilities to
                                        received a significant number of                        with unescorted access to both facilities              strict liability in the case of a terrorist
                                        comments requesting that we hold                        and vessels. Finally, the TWIC program                 incident. The commenter recommended
                                        additional public meetings. These                       will provide the owners/operators with                 that the final rule amend all uses of the
                                        requests included a large number of                     the piece that the interim vetting regime              word ‘‘ensure’’ in 33 CFR, chapter I,
                                        supporting reasons.                                     is missing—namely, a universal                         subchapter H.
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                                          Several commenters said that TSA                      credential to verify whether an                           We disagree. The word ensure, as
                                        and the Coast Guard had not done                        individual requesting access to a vessel               used in current regulations as well as
                                        enough to obtain information about the                  or facility has been screened and                      the TWIC NPRM, was used throughout
                                        concerns of affected maritime workers                   determined not to be a security threat.                subchapter H purposely, to designate
                                        and industries before going forward                     With the Coast Guard spot checks, we                   where the ultimate responsibility for

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                                        various security functions would be                     with access to crew areas. This would                    They further recommended that
                                        found for enforcement purposes. We did                  allow operators to maintain the security               facilities owners and operators be
                                        not propose changing it in the TWIC                     of control stations, equipment rooms                   provided flexibility similar to that of
                                        NPRM and we have not changed it in                      and voids, without disruption of access                passengers in designating public access
                                        the final rule.                                         to other employee only areas of the                    areas, and recommended that the
                                           One commenter recommended that                       vessel or a facility, which do not need                following definition be added to part
                                        the final rule better define the term                   to be restricted areas.                                105:
                                        ‘‘Federal Official’’ in 33 CFR 101.514, so                 We agree with this comment. As                        ‘‘§ Public access area.
                                        that active duty and reserve military                   discussed above in the section                           (a) Any facility may designate areas within
                                        personnel, all Federal Civil Service                    discussing changes to the Coast Guard                  the facility as public access areas. Any such
                                        employees, and people who hold                          provisions, we are adding a definition                 areas must be specified in the FSP.
                                        Department of Defense (DOD) Common                      for ‘‘employee access areas,’’ for use                   (b) Public access areas are those defined
                                        Access Card (CAC) cards are not                         only by passenger vessels and ferries.                 spaces within a facility that do not require
                                        required to obtain or possess a TWIC.                   An employee access area is a defined                   escorted access for persons not in possession
                                                                                                                                                       of a TWIC.’’
                                        We disagree with the suggested change,                  space within the access control area of
                                        as the term Federal official is clear                   a ferry or passenger vessel that is open                 They also recommended that OCS
                                        enough on its face, meaning individuals                 to employees but not passengers. It is                 facilities owners and operators be
                                        who are working for the Federal                         not a secure area and does not require                 provided flexibility similar to that of
                                        government. Section 101.514 allows                      a TWIC for unescorted access. It may                   passenger vessels in designating public
                                        these individuals to gain unescorted                    not include any areas defined as                       access areas, and recommended that the
                                        access to a vessel or facility using their              restricted areas in the VSP. Note,                     following definition be added to part
                                        agency-issued, HSPD–12 compliant                        however, that any employee that needs                  106:
                                        identification card. Until an HSPD–12                   to have unescorted access to areas of the                ‘‘§ Public access area.
                                        card is available, these officials may use              vessel outside of the passenger or                       (a) Any OCS facility may designate areas
                                        their agency’s official credential—when                 employee access areas will need to                     within the facility as public access areas. Any
                                        representing that agency on offical                     obtain a TWIC.                                         such areas must be specified in the FSP.
                                        duty—if that is the DOD CAC card, then                                                                           (b) Public access areas are those defined
                                                                                                (b). TWIC                                              spaces within an OCS facility that do not
                                        the CAC card may be used.
                                           One commenter noted that a                              Two commenters recommended that                     require escorted access for persons not in
                                                                                                all references to a ‘‘valid TWIC’’ be                  possession of a TWIC.’’
                                        definition for the term ‘‘official’’ is not
                                        provided in the proposed rule, and                      changed to ‘‘TWIC’’ since the definition                  We disagree with these comments.
                                        recommended that Federal, State, and                    of TWIC requires that it be valid and                  The concept of a ‘‘passenger access
                                        local ‘‘officials’’ not requiring a TWIC                non-revoked. We agree and have made                    area’’ has been included in the final rule
                                        for unescorted access should be limited                 the suggested changes within 33 CFR                    to cover passenger vessels, ferries, and
                                        to law enforcement, fire, rescue, and                   parts 101 through 106. We have left the                cruise ships, i.e., those vessels that
                                        government employees that have been                     language in 46 CFR parts 10, 12, and 15,               routinely, as part of their normal
                                        subjected to a background screening                     however, because in those places, the                  operating procedures, carry passengers.
                                        equivalent to the one conducted for                     term TWIC is not tied to the definition                While we recognize that some cargo
                                        issuance of a TWIC. We believe that the                 in § 101.105.                                          vessels may also, at times, carry
                                        term ‘‘official’’ is clear enough in                                                                           passengers, we do not feel it is
                                                                                                (c). Public Access Area/Passenger                      appropriate to expand this provision to
                                        context, and as such we have not added
                                                                                                Access Area                                            other categories of vessels at this time.
                                        a definition as suggested by the
                                        commenter. We recognize, however,                          One commenter recommended that                      We feel that appropriate flexibility is
                                        that emergency responders may not fit                   the definition of ‘‘public access area’’ for           given in the interpretation of ‘‘escort’’ to
                                        into the ‘‘officials’’ category, and so we              cargo vessels be the same as that for                  address these situations, while
                                        have added a new paragraph to                           passenger vessels to allow similar                     maintaining security. Additionally,
                                        § 101.514 to cover emergency                            flexibility. Alternatively, the commenter              facilities are already able to designate
                                        responders during emergency situations.                 provided a separate definition of                      certain portions of their facility as
                                           One commenter recommended that                       ‘‘public access area’’ that allows                     ‘‘public access areas,’’ therefore we do
                                        the rule be amended to exclude persons                  facilities to designate any area as such,              not feel it necessary to expand the
                                        working on vessels whose sole purpose                   provided the area is specified in the                  ‘‘passenger access area’’ concept to
                                        is entertainment, such as musicians on                  FSP.                                                   facilities at this time.
                                        passenger vessels. If this exclusion was                   One association noted that vessels                     Several commenters recommended
                                        not made, the commenter recommended                     other than ‘‘passenger vessels’’ are                   that the definition of ‘‘passenger access
                                        that where a vessel engaged solely in                   permitted to carry passengers, industrial              areas’’ be clarified in the final rule to
                                        entertainment has been inadvertently                    personnel, or persons in addition to the               state that no person, including
                                        grouped with vessels of other classes,                  crew. The association recommended                      employees, workers, and vendors,
                                        that the designation of various spaces                  that the final rule provide flexibility                would need a TWIC to have unescorted
                                        aboard the vessels, and within those                    similar to passenger vessels for other                 access to a passenger access area on a
                                        vessels’ facilities, be more clearly                    types of vessels by providing the                      vessel.
                                        defined in the final rule, including: (1)               following definition of public access                     We have not amended the language as
                                        For passenger vessels, exclude the                      areas in 33 CFR part 101: ‘‘Public access              suggested, but agree with the
                                        employees, whose workstation is                         areas means those defined spaces within                commenters’ concept. The proposed,
                                        limited to areas accessible by                          a vessel, facility or OCS facility that do             and now final, definition of ‘‘passenger
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                                        passengers, based on the fact that they                 not require a TWIC for unescorted                      access area’’ states that these areas are
                                        are occupying the same areas as the                     access. Any vessel, facility or OCS                    not part of the secure area of the vessel.
                                        passengers who are not subject to the                   facility may designate areas as public                 Thus, anyone requiring unescorted
                                        requirement; and (2) apply the TWIC                     access areas provided they are specified               access to the passenger access area
                                        ruling only to the crew areas or persons                in the security plan.’’                                ONLY does not need to have a TWIC,

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                                        as he or she does not need unescorted                      Commenters also stated that the                     escorting is not required, so long as the
                                        access to a secure area. This covers                    escorting and recordkeeping                            method of surveillance or monitoring is
                                        passengers, employees, other workers,                   requirement would be too burdensome                    sufficient to allow for a quick response
                                        and vendors.                                            in terms of manpower, cost, and                        should an individual ‘‘under escort’’ be
                                                                                                recordkeeping. Many of these                           found in an area where he or she has not
                                        (d). Monitoring
                                                                                                commenters interpreted the definition                  been authorized to go or is engaging in
                                           One commenter felt that the                          to require the physical presence of one                activities other than those for which
                                        definition of ‘‘monitoring’’ as used in                 escort for each individual without a                   escorted access was granted. Again, we
                                        current regulations and the TWIC                        TWIC at all times while in a restricted                will provide additional guidance with
                                        NPRM, was ambiguous, confusing, and                     area. Some of these commenters                         more specifics in a NVIC.
                                        should be deleted. We disagree. The                     provided examples of situations where                     Additionally, as discussed above, the
                                        NPRM did not propose to change the                      the requirement would be too                           reporting and recordkeeping
                                        definition of monitoring, and as such we                burdensome. One port authority stated                  requirements proposed in the NPRM
                                        are not making any changes in the final                 that it typically has over 100 temporary               have been removed from this final rule.
                                        rule. For an explanation of what was                    workers on site that would require                     We will take the comments on these
                                        meant by that term, see the final rule                  escorts. Another commenter was                         requirements into consideration when
                                        titled ‘‘Implementation of National                     concerned that the rule may prevent                    we begin a new rulemaking on reader
                                        Maritime Security Initiatives,’’ issued                 shore leave for European Union workers                 requirements.
                                        on October 22, 2003 (68 FR 60448).                      not holding a TWIC, particularly where                    One commenter felt that the
                                                                                                an escort was unavailable or the                       definitions of ‘‘escorting’’ and
                                        (e). Breach of Security
                                                                                                regulations were interpreted                           ‘‘unescorted access’’ are in conflict, and
                                           One trade association recommended                    inconsistently at different ports. One                 recommended that the definition of
                                        that the definition for ‘‘breach of                     trade association felt that the                        ‘‘unescorted access’’ be broadened to
                                        security’’ as used in current regulations               requirement for escorting would be too                 include either an escort or monitoring
                                        and the TWIC NPRM be clarified to                       burdensome for facilities without the                  sufficient to identify whether the
                                        allow certain individuals without a                     manpower to escort individuals without                 escorted individual is engaged in
                                        TWIC in secure areas, such as escorted                  TWIC, particularly in emergency                        activities other than those for which
                                        persons and foreign seafarers                           situations when the workforce has been                 escorted access was granted.
                                        conducting authorized ship’s business.                  displaced. One commenter felt that the                    One commenter felt that the
                                        The commenter also recommended that                     escort provisions should be unnecessary                definition of escorting was in conflict
                                        the guidance in parts 104 through 106                   for foreign maritime facilities complying              with the requirement in § 105.290(d) to
                                        be amended to clarify this.                             with the International Ship and Port                   provide additional security to monitor
                                           Neither the NPRM nor the final rule                  Facilities Security Code (ISPS Code).                  holding, waiting, or embarkation areas,
                                        amend the definition for ‘‘breach of                       Several commenters were concerned                   because passengers that do not hold
                                        security.’’ As stated in the NPRM,                      about the need to escort repairmen,                    TWICs may be in those areas. The
                                        ‘‘[c]ircumstances that trigger the                      maintenance crews, truck drivers,                      commenter expressed concern that this
                                        reporting requirement[s] in § 101.305                   delivery men, crews doing dockside                     conflict could result in inconsistent
                                        are highly fact-specific and difficult to               checks of their vessel, musicians,                     requirements, with some government
                                        define comprehensively.’’ (71 FR                        caterers, and other workers, and the                   officials requiring each passenger to be
                                        29417). Generally speaking, finding                     need for escorting during weekends and                 accompanied one-on-one by security
                                        properly escorted persons within a                      non-business hours when escorts might                  personnel.
                                        secure area would not, in and of itself,                not be available. One commenter stated                    ‘‘Escorting’’ means ‘‘ensuring that the
                                        constitute a breach of security. One                    that it would have to provide escorts for              escorted individual is continuously
                                        situation that would, with certainty,                   technical representatives of foreign                   accompanied while within a secure area
                                        however, is finding someone unescorted                  equipment manufacturers to work on its                 in a manner sufficient to identify
                                        within a secure area without a TWIC.                    foreign-built (but U.S.-flagged) vessels.              whether the escorted individual is
                                        This would constitute a breach of                       The company also said the rule would                   engaged in activities other than those for
                                        security. We will be issuing new                        be ‘‘problematic’’ because it would                    which escorted access was granted.’’ As
                                        guidance for parts 104 through 106, in                  require a constant escort for foreign                  stated above, we did not intend for the
                                        the form of a NVIC, and will be sure to                 owners of U.S.-flagged vessels who visit               term escorting to always mean a one-to-
                                        include provisions on what could                        the vessels. They also stated the rule                 one side-by-side escort, and we have
                                        constitute breaches of security or                      might disadvantage U.S. ship                           added to the definition to clarify that
                                        suspicious activity in the context of                   management companies that operate                      outside of restricted areas, monitoring
                                        TWIC.                                                   U.S.-flagged vessels for foreign owners.               will meet the definition of escorting. We
                                                                                                   As noted above in the section                       believe that the requirements in
                                        (f). Escorted/Unescorted Access                         discussing changes to the Coast Guard                  § 105.290(d) are sufficient to meet the
                                           Several comments requested                           provisions, we have amended the                        definition of ‘‘escorting’’ when
                                        clarification and additional guidance on                definition of escorted access to clarify               passengers are in holding, waiting, or
                                        the definition of ‘‘escorting.’’ Several                that when in an area defined as a                      embarkation areas so long as the
                                        commenters requested additional                         restricted area in a vessel or facility                monitoring provisions of the facility’s
                                        clarification about the level of                        security plan, escorting will mean a live,             approved security plan are in place.
                                        surveillance for personnel without a                    side-by-side escort. Whether it must be                   One commenter recommended that
                                        TWIC, and supported the use of                          a one-to-one escort, or whether there                  the definition be clarified to state that
                                        surveillance and monitoring technology                  can be one escort for multiple persons,                the escort must hold a TWIC. This
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                                        instead of physical escorting, or the use               will depend on the specifics of each                   would prevent two individuals without
                                        of one escort to monitor multiple                       vessel and/or facility. We will provide                TWICs from escorting each other.
                                        individuals. The commenters said that                   additional guidance on what these                         We have included the requirement
                                        constant, one-on-one supervision would                  specifics might be in a NVIC. Outside of               that all escorts be TWIC-holders in the
                                        be unduly burdensome.                                   restricted areas, however, such physical               actual access control provisions of parts

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                                        104, 105, and 106. We have added                        side escorting is not necessary, so long               on where card readers need to be
                                        language to the definition to specifically              as the method of surveillance or                       located for secured and restricted areas.
                                        state that individuals without TWICs                    monitoring is sufficient to allow for a                When the NPRM on reader requirements
                                        may not enter restricted areas without                  quick response should an individual                    is published, we will include
                                        being escorted by an individual who                     ‘‘under escort’’ be found in an area                   clarification on this subject, where
                                        holds a TWIC, with certain exceptions                   where he or she has not been authorized                appropriate.
                                        for new hires.                                          to go. As stated above, we will provide                   Many commenters felt that the use of
                                           One port authority recommended that                  additional guidance with more specifics                the terms ‘‘secure area’’ and ‘‘restricted
                                        the escorts be limited to a subset of                   in a NVIC.                                             area’’ was confusing, and that additional
                                        TWIC holders, as is done in the aviation                                                                       clarification or changes to the
                                        sector, and that a limit on the number                  (g). Recurring Unescorted Access
                                                                                                                                                       definitions or use of these terms be
                                        of individuals a single person can escort                  Many commenters supported the                       made. Several commenters believed that
                                        be established. We have no limits on                    provision allowing the holder of a TWIC                these terms meant the same thing, and
                                        who can serve as an escort, other than                  who regularly enters and departs a                     recommended using either ‘‘secure
                                        the requirement that all escorts hold a                 secure area on a vessel on a continual                 area’’ or ‘‘restricted area’’, but not both.
                                        TWIC. Owners/operators are free to                      basis to do so without verifying the                   Several commenters felt that ‘‘secure
                                        establish more stringent requirements                   TWIC for each such event. The                          area’’ should not be defined as
                                        for their escorts if they so desire. As                 commenters felt that screening                         ‘‘restricted area’’ at low consequence
                                        stated above, we will be issuing a NVIC                 employees that access secure areas                     facilities. One commenter recommended
                                        that will provide more detail on how                    frequently would be burdensome. One
                                                                                                                                                       that any facility be given the flexibility
                                        many individuals each escort can                        commenter stated that this provision is
                                                                                                                                                       to designate its existing restricted areas
                                        accompany at one time.                                  needed by operations with few
                                                                                                                                                       as its secure areas in its TWIC
                                           One commenter requested                              employees. Some of these commenters
                                                                                                                                                       Addendum. The commenter
                                        clarification on who was qualified to be                supported expanding this provision to
                                                                                                                                                       recommended that specific provisions
                                        an escort and was concerned that they                   include facilities. One commenter
                                                                                                                                                       in the proposed regulations that could
                                        would need to use an outside security                   recommended that facilities allow
                                                                                                                                                       be interpreted as preventing this, such
                                        service to serve as escorts. It is not our              recurring unescorted access without
                                                                                                                                                       as the requirement that ‘‘appropriate
                                        intention to require outside security                   TWIC verification, when the validity of
                                                                                                                                                       personnel know who is on the facility
                                        services in order for an owner/operator                 an individual’s TWIC has been
                                                                                                                                                       at all times’’ (33 CFR 105.200(b)(18))
                                        to be able to provide escorts. We will                  confirmed within the prior thirty days
                                                                                                                                                       and the record keeping requirements (33
                                        provide more guidance on what is                        during Maritime Security (MARSEC)
                                                                                                                                                       CFR 105.225(b)(9)) should be revised to
                                        expected of escorts in our NVIC, but                    Level 1, but that at MARSEC Level 2
                                        generally we expect that any escort be                                                                         make it clear that they only apply
                                                                                                TWIC verification be conducted each
                                        able to respond quickly should any of                                                                          within the secure areas designated in
                                                                                                time the individual accesses the area.
                                        the individuals that he or she is                          One commenter recommended the                       the TWIC Addendum. One commenter
                                        escorting enter (or attempt to enter) an                definition be revised to ‘‘* * *                       recommended that only the term
                                        area they are not authorized to be in or                authorization to enter a vessel or facility            ‘‘secure area’’ be used, while other
                                        engage in activities other than those for               on a continual basis after an initial                  commenters recommended that only the
                                        which escorted access was granted.                      personal identity and credential                       term ‘‘restricted area’’ should be used.
                                           One commenter felt that the                          verification, as outlined in the vessel or             Many commenters recommended that
                                        definitions of ‘‘escorting’’ and                        facility security plan.’’ The commenter                the definition of ‘‘secure area’’ should
                                        ‘‘unescorted access’’ are in conflict, and              stated that this modification will                     be aligned with, or made the same as,
                                        recommended that the definition of                      provide significant relief for facilities              the existing definition of ‘‘restricted
                                        ‘‘Unescorted Access’’ be broadened to                   during MARSEC Level 1.                                 area’’ used in existing security plans.
                                        include either an escort or monitoring                     We reviewed these comments and                      The commenters felt that this would be
                                        sufficient to identify whether the                      recognize that recurring unescorted                    more consistent with existing
                                        escorted individual is engaged in                       access might be a valuable and sensible                regulations and security plans and
                                        activities other than those for which                   tool for both vessels and facilities.                  would allow flexibility without
                                        escorted access was granted.                            However, because the requirements for                  reducing security. These commenters
                                           The definition of ‘‘unescorted access’’              readers and owner/operator TWIC                        argued that having different definitions
                                        in the final rule provides flexibility,                 verification have been removed from the                would result in unnecessarily increasing
                                        allowing owners/operators to designate                  access control provisions of this final                access restrictions in areas that are
                                        which individuals need unescorted                       rule, the term is no longer used within                restricted to employees only but are not
                                        access, which need to be escorted, and                  the access control provisions of                       essential for security, such as galleys
                                        which need to be banned from all access                 subchapter H. Despite this fact, we have               and storage areas. Some commenters
                                        based on their individual                               retained the definition, and expect that               recommended that the final rule include
                                        circumstances. The Federal government                   it will be used in a future rulemaking to              a definition of ‘‘employee only area’’ or
                                        will take appropriate action against                    impose reader requirements. Any NPRM                   ‘‘owner-controlled area’’ for such areas,
                                        known or suspected terrorists or illegal                on that issue will include consideration               and that TWIC not be required for them.
                                        aliens, preventing them from gaining                    of expanding the concept to any vessel                    Two commenters recommended that
                                        even escorted access to secure areas.                   or facility with a small enough                        the term ‘‘secure area’’ be defined more
                                        However those persons who represent                     contingent of regular employees that                   narrowly than ‘‘restricted area.’’ One of
                                        ‘‘security threats’’ due to past criminal               allowing such access would not present                 these commenters was concerned that
                                        activity may not constitute a risk when                 a significant security risk.                           defining the terms ‘‘secure area’’ and
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                                        escorted.                                                                                                      ‘‘restricted area’’ to be the same would
                                           As we noted above, we did not intend                 (h). Secure Area                                       be costly for facilities and vessels that
                                        for the term escorting to always mean a                   There were numerous comments on                      have designated in their security plan
                                        one-to-one side-by-side escort. In fact,                the proposed definition of secure area.                their entire facilities and vessels as a
                                        outside of restricted areas, such side-by-              One commenter requested clarification                  ‘‘restricted area.’’

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                                        3516             Federal Register / Vol. 72, No. 16 / Thursday, January 25, 2007 / Rules and Regulations

                                           Several commenters recommended                       and that the Coast Guard readily                       require a higher degree of security
                                        that if ‘‘secure area’’ and ‘‘restricted                approve such designations. These                       protection. Coast Guard will review and
                                        area’’ are defined as coextensive,                      commenters felt that this was necessary                approve these changes to the FSP so
                                        facilities should have flexibility in                   to minimize the costs and disruptions                  long as the facility demonstrates that (i)
                                        determining which ‘‘secure areas’’                      from the rule.                                         it can maintain existing security at the
                                        require TWIC. Another commenter                            One commenter recommended that                      balance of the facility, and (ii) restricted
                                        recommended that if ‘‘secure area’’ and                 the proposed rule be amended to                        access controls (including TWIC access
                                        ‘‘restricted area’’ be defined as                       include a process for limiting the                     controls) have been provided for the
                                        coextensive, the agency create a                        portions of sites to be covered by the                 area that will have heightened security.’’
                                        definition for ‘‘security sensitive areas’’             rule based on security vulnerability                      We agree with the substance of this
                                        requiring TWIC that would be a subset                   criteria, which would certainly include                comment. While the exact
                                        of ‘‘secure areas.’’ Multiple commenters                barge unloading facilities and possibly                recommended verbiage has not been
                                        requested that if these terms do have                   other areas designated as ‘‘restricted’’ in            incorporated into the final rule, we
                                        different meanings, the final rule should               the site’s FSP developed under MTSA.                   believe the intent and proposed
                                        explain the difference, and identify the                   As noted above in the discussion of                 flexibility has. Facility owners and
                                        difference in access restrictions required              changes to the Coast Guard provision of                operators will continue to be
                                        for them.                                               this rule, we did not intend for the                   responsible for drafting and submitting
                                           One commenter was concerned that                     terms ‘‘secure area’’ and ‘‘restricted                 their unique security plans for Coast
                                        the Coast Guard would not accept the                    area’’ to be read as meaning the same                  Guard approval. As noted above, greater
                                        ‘‘restricted areas’’ established in existing            thing.                                                 flexibility has been afforded to facility
                                        security plans as ‘‘secure areas.’’ This                   As also noted above, we recognize                   plan submitters, allowing them to
                                        commenter felt that vessels and                         that many facilities may have areas                    redefine their secure area to include
                                        facilities should have the flexibility to               within their access control area that are              only those portions of their facility that
                                        define existing areas designated as                     not related to maritime transportation,                are directly connected to maritime
                                        ‘‘restricted areas’’ as ‘‘secure areas’’ to             such as areas devoted to manufacturing                 transportation or are at risk of being
                                        avoid expending resources on areas that                 or refining operations. The individuals                involved in a transportation security
                                        are not important to security.                          working in these non-maritime                          incident.
                                           Multiple commenters were concerned                   transportation areas may rarely, if ever,                 We realize that there may be some
                                        that the definitions of ‘‘secure area’’ or              have a need to access the maritime                     owners and operators of vessels that
                                        ‘‘restricted area’’ would result in                     transportation portions of the facility.               would like the same option. However,
                                        inconsistent application by regulators at               As such, we are giving facility owners                 vessels present a unique security threat
                                        different facilities. One commenter was                 or operators the option of amending                    over facilities in that they may not only
                                        concerned that their entire facility has                their FSP to redefine their secure area to             be targets in and of themselves, but may
                                        been determined to be a secure area, and                include only those portions of their                   also be used as a weapon. Due to this
                                        thus all of their employees would                       facility that are directly related to                  fact, we will continue to define the
                                        require a TWIC. Some commenters                         maritime transportation or are at risk of              entire vessel as a ‘‘secure area,’’ making
                                        recommended that small facilities be                    being involved in a transportation                     exception only for those special
                                        allowed to define areas as being ‘‘secure               security incident. Redefining the secure               passenger and employee access areas
                                        areas’’ only when a vessel is present.                  area does not necessarily reduce the                   which are discussed below. Vessel
                                           Several commenters were concerned                    original facility footprint covered by the             owners/operators need not submit an
                                        that the definition of ‘‘secure area’’ was              FSP where security measures are                        amendment to the VSP in order to
                                        too broad, and would require TWIC for                   already in place. That can only be                     implement these special areas, however
                                        any area with any access restriction,                   achieved by a reevaluation of the facility             they may do so, following the
                                        such as a fence. Commenters were                        as a whole. Instead, the amendment will                procedures described in part 104.
                                        concerned that this would result in their               only effect where TWIC program                            Commenters also requested
                                        entire vessel or facility being designated              requirements will be implemented.                      clarification on whether the term
                                        as a ‘‘secure area.’’ Many of these                     Additionally, any secure areas must                    ‘‘secure area’’ is intended to include
                                        commenters felt that they could not                     have an access control perimeter which                 passenger access areas as defined under
                                        meet such a requirement, or that such a                 ensures only authorized individuals                    33 CFR 105.106. These commenters
                                        requirement would be unnecessary for                    with valid TWICs have unescorted                       recommended that the passenger access
                                        security. One commenter expressed                       access. These amendments must be                       areas not be defined as ‘‘secure areas.’’
                                        concern that this might result in                       submitted to the cognizant COTP by                        ‘‘Passenger access areas’’ are, by their
                                        numerous Transportation Security                        July 25, 2007.                                         definition, not secure areas. They will,
                                        Incidents.                                                 One commenter expressed a desire for                however, exist solely within the secure
                                           One commenter recommended that                       Coast Guard to support allowing a                      area of the vessels on which they are
                                        the first sentence of the proposed rule                 facility owner/operator to modify their                implemented. As such, they will operate
                                        be rewritten to read, ‘‘Secure area means               FSPs by maintaining a significant level                as ‘‘pockets’’ within the secure area.
                                        the area on board a vessel or at a facility             of security for the entire facility, while                One commenter stated that small
                                        or outer continental shelf facility which               enhancing security for narrower area of                passenger vessels and facilities where
                                        the owner/operator has designated as                    the site. This commenter proposed the                  they moor would be at a small risk of
                                        requiring a transportation worker                       following language for the final rule                  a terrorist attack. The commenter
                                        identification credential (TWIC) for a                  preamble: ‘‘Facility owner/operators are               recommended that the final rule state
                                        person obtaining unescorted access, as                  encouraged to review, and revise as                    that such vessels and facilities do not
                                        defined by a Coast Guard approved                       necessary, their Facility Security Plans               have any ‘‘secure areas.’’
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                                        security plan.’’                                        to apply TWIC requirements to those                       We do not agree with this comment.
                                           Multiple commenters recommended                      portions of the site that (i) trigger MTSA             During the MTSA rulemaking process,
                                        that the final rule clarify that facility               regulation, (ii) can be reasonably                     the Coast Guard evaluated all vessels
                                        owners and operators have broad                         separated through access controls from                 and facilities to determine which of
                                        flexibility in designating ‘‘secure areas,’’            other parts of the facility; and (iii)                 those are at a high enough risk of a

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                                                         Federal Register / Vol. 72, No. 16 / Thursday, January 25, 2007 / Rules and Regulations                                           3517

                                        Transportation Security Incident (TSI)                  subchapter H, therefore it is not                      exempt any facility from the TWIC
                                        to warrant imposing the security plan                   necessary to constantly refer back to                  requirements that had a FSP already in
                                        requirement. Small passenger vessels                    part 101 when, in parts 103 through                    place. Another commenter noted that in
                                        and the facilities that they use were                   106, we use a term defined in part 101.                the absence of security incidents at any
                                        determined to pose a high enough risk                                                                          scrap yards relating to maritime
                                                                                                2. General Comments on Applicability
                                        to warrant imposition of the security                                                                          transportation and small port facilities
                                        plan requirement. We do not believe                        Many commenters had questions and/                  that receive bulk aggregate materials, the
                                        that circumstances have changed to                      or concerns for TSA and Coast Guard                    FSP should be sufficient for addressing
                                        warrant a change to those requirements.                 related to the applicability of the                    risks at such facilities.
                                        We have, however, provided some relief                  proposed rule. One asked what the                         MTSA was clear and unambiguous,
                                        to small passenger vessels in this                      TWIC requirements would be for a CDC                   leaving little if any room for agency
                                        rulemaking by allowing them to carve                    facility that is in a separate location on             interpretation. Essentially, all
                                        out passenger and employee access                       port property, since it is not a secure                individuals must hold a TWIC in order
                                        areas (explained elsewhere in this final                maritime facility and thus does not fall               to be eligible for unescorted access to
                                        rule), which will help minimize the                     under the security regulations of 33 CFR               secure areas of MTSA regulated
                                        ‘‘secure area’’ on board.                               part 105.                                              facilities or vessels. In addition, the
                                           One commenter was concerned that                        Another commenter posed several                     statute was very clear that all
                                        since secure areas are defined in the                   questions for TSA and Coast Guard:                     credentialed Merchant Mariners will be
                                        owner or operator’s threat assessment                   Will the unlicensed crew members on                    issued a biometric identification card,
                                        (which is approved by the Coast Guard,                  small passenger vessels certificated for               which will be the TWIC. Where needed
                                        but is not publicly available), a business              less than 150 passengers under                         and allowable under the statute, certain
                                        operating at the port, vessel, or facility              ‘‘Subchapter K’’ need to hold a TWIC?                  arrangements or exemptions were
                                        for the first time would not know what                  Will unlicensed crew members on                        proposed and modified as the result of
                                        areas are designated as ‘‘secure’’ and                  passenger vessels carrying more than 12                the public comments to identify special
                                        whether they need a maritime TWIC.                      passengers, including at least one                     cases where individuals without a TWIC
                                           The threat assessment approved by                    passenger-for-hire, on an international                or who are unable to obtain a TWIC can
                                        the Coast Guard addressed restricted                    voyage, which can include large charter                continue to work aboard MTSA
                                        areas, not secure areas. We have defined                yachts of up to 500 Gross Register                     regulated facilities or vessels, subject to
                                        secure areas as the access control areas                Tonnage (GRT), be required to carry a                  additional security provisions.
                                        of vessels and facilities, which should                 TWIC? Will deckhands on barges                            As a result of the public comments
                                        provide enough guidance to new                          subject to ‘‘Subchapters D or O’’ be                   and concern regarding the potential
                                        businesses, as the area over which a                    required to obtain a TWIC? Will                        negative impact on industry resulting
                                        vessel or facility exerts access control                deckhands on towing vessels greater                    from the requirements to implement a
                                        should be readily visible to anyone                     than 26 feet in length be required to                  TWIC system, greater flexibility has
                                        approaching that vessel or facility for                 obtain a TWIC?                                         been afforded to facility owners/
                                        access.                                                    One commenter noted that every                      operators by allowing them the option,
                                           One commenter also requested                         terminal under MTSA is unique, which                   in revised § 105.115, to redefine their
                                        clarification on whether ‘‘secure areas’’               is why they are required to have FSPs                  ‘‘secure area’’ as only that portion of
                                        corresponds to existing security                        and suggested that 33 CFR part 105 be                  their access control area that is directly
                                        classification existing under the ISPS                  used as a baseline and to allow                        related to maritime transportation.
                                        Code.                                                   terminals to write their specific plans to             Other definitions, such as ‘‘passenger
                                           The comment is unclear. The ISPS                     ensure security and ease of commerce                   access area’’ and ‘‘employee access
                                        Code uses the term restricted area, and                 thus allowing the terminal operators to                area,’’ will also provide greater
                                        as discussed above, we do not intend for                determine if individuals without the                   flexibility in assisting regulated entities
                                        the secure area to mean the same thing                  TWIC may have unescorted access to                     with enhancing security while meeting
                                        as restricted area. In that regard, this                the terminal. One commenter shared                     the new regulations. Additionally,
                                        final rule does not correspond with the                 their experience implementing                          provisions have been included, as
                                        ISPS Code. However, we note that the                    legislation similar to the TWIC via                    discussed more specifically below, to
                                        definition we have provided will not                    Florida Statute 311.12. The commenter                  allow limited access to new hires under
                                        interfere with a vessel or facility                     suggested adding a grandfather                         specific conditions, and to persons who
                                        meeting the requirements of the ISPS                    component to the proposed rule to                      have reported their TWIC as lost,
                                        Code.                                                   allow current personnel working in the                 damaged or stolen and are awaiting
                                           One commenter noted that safety                      maritime industry certain                              replacement cards.
                                        issues surrounding needed access to                     considerations. The commenter went on                     One commenter recommended utility
                                        ‘‘secure areas’’ in an emergency are not                to note that if they had not implemented               fuel-handling facilities be the only
                                        addressed. Another commenter stated                     a grandfather component to Florida                     facilities subject to the TWIC program.
                                        that access to secure areas cannot be                   Statute 311.12, the smooth operation of                The commenter also recommended that
                                        restricted in an emergency. We                          commerce would have come to a halt.                    the TWIC be required for such facilities
                                        recognize this issue and have added a                      Many commenters, including                          only when the facility is being used for
                                        paragraph to § 101.514 that clarifies                   individuals, marine services companies,                off-loading.
                                        emergency personnel need not have                       barge lines, cruise lines, towing                         As stated earlier, the MTSA of 2002
                                        TWICs to obtain unescorted access to                    companies, and marine maintenance                      clearly and unambiguously ruled out
                                        secure areas during emergencies.                        companies, argued that they already had                blanket waivers for specific industry
                                           Two commenters recommended that                      adequate security plans, restrictions,                 segments or specific job descriptions.
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                                        the term ‘‘secure area’’ be revised to                  testing procedures, personnel                          With very limited exceptions, all
                                        read ‘‘Secure area is used as defined in                procedures, and other safeguards in                    individuals must hold a TWIC in order
                                        33 CFR 101.’’                                           place, some of which were approved by                  to be eligible for unescorted access to
                                           We disagree. The definitions found in                the Coast Guard. One local government                  secure areas of MTSA regulated
                                        33 CFR part 101 apply to all of                         commenter said that TSA should                         facilities or vessels.

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                                        3518             Federal Register / Vol. 72, No. 16 / Thursday, January 25, 2007 / Rules and Regulations

                                        (a). Applicability—Requests for                         or in small ports. They stated that                    104.295) and all foreign vessels are
                                        Exemptions                                              identifying someone who does not                       exempt from TWIC requirements under
                                           Numerous commenters requested                        belong is not difficult on these small                 33 CFR 104.105(d). The commenter
                                        exemptions from the TWIC                                vessels and in these small ports, and can              asked for confirmation that this
                                        requirements for the following                          be accomplished visually. They claimed                 understanding of the proposed rule is
                                        industries, vessels, and facilities:                    that the proposed rule would only add                  correct. In addition, they requested
                                           • U.S.-flagged passenger vessels;                    cost to these industries with little to no             confirmation that a MODU that is not
                                           • U.S.-flagged mobile offshore                       benefit to maritime security. For                      regulated under part 104, and therefore
                                        drilling units (MODUs) and offshore                     example, many commenters noted that                    not required to implement TWIC
                                        supply vessels (OSVs) operating outside                 the crews on inland towing vessels are                 provisions, but is working next to or
                                        the geographic boundaries of U.S.                       predominantly U.S. nationals who                       over an OCS facility that is regulated by
                                                                                                already comply with the security                       part 106, and therefore is required to
                                        jurisdiction, employing non-citizen
                                                                                                regulations in 33 CFR parts 104 and 105,               implement TWIC provisions, would be
                                                                                                so requiring TWICs for this industry                   exempt from the TWIC requirements.
                                           • Other U.S. flagged vessels
                                                                                                would be costly and would result in few                   In addition to requests for exemptions
                                        employing non-citizen crewmembers
                                                                                                improvements in maritime security. In                  for industries, vessels, and facilities,
                                        under the provisions of 46 U.S.C.
                                                                                                addition, several commenters from the                  many commenters requested
                                        8103(b)(3) or (e);
                                                                                                small passenger vessel industry                        exemptions for the following types of
                                           • Inland tugboat, towboat, and barge
                                                                                                requested that subchapter K and T                      workers:
                                           • Small and/or isolated low
                                                                                                vessels operating in restricted waters                    • Employees who work at small ports,
                                                                                                and routes be exempt from the proposed                 facilities, or vessels;
                                        consequence ports, facilities, or vessels;
                                           • Facilities with security
                                                                                                rule.                                                     • Merchant seamen who are U.S.
                                                                                                   More specifically, some commenters                  citizens and hold current U.S. Coast
                                        requirements that are equivalent or                     noted that vessels under a specific
                                        more stringent than the TWIC (e.g.,                                                                            Guard licenses, Merchant Mariner
                                                                                                tonnage should be exempt from the                      Documents (MMD), certificates of
                                        shipyards that currently meet existing                  TWIC requirements. One commenter
                                        DOD credentialing and security plan                                                                            registry, and STCW documents;
                                                                                                asked that vessels of less than 500                       • Employees on vessels under 100
                                        requirements);                                          regulatory tons GRT and 6,000                          gross tons;
                                           • Facilities and vessels participating               International Tonnage Convention (ITC)                    • Contract security guards who have
                                        in aggregate stockpile and loadout                      tons be exempt from the requirements.                  already undergone a DOJ background
                                        activities;                                             Another commenter asked that vessels                   investigation;
                                           • Tall ships operating under the U.S.                less than 100 gross tons with                             • Crewmembers, service technicians,
                                        flag and educational sailing programs                   undocumented workers be exempt from                    or repair persons performing vessel
                                        for school children;                                    the proposed rule.                                     maintenance and repairs;
                                           • Bunkering and gas support                             Many commenters argued that U.S.-                      • Hotel staff and passenger vessel
                                        facilities; and                                         flagged MODUs and offshore supply                      staff;
                                           • U.S. vessels undergoing repairs at a               vessels (OSVs) operating outside the                      • Seasonal or short term workers
                                        foreign port or facility.                               geographic boundaries of U.S.                          which access needs of less than 90 days;
                                           The commenters presented various                     jurisdiction, employing non-citizen                       • Cadets from U.S. maritime
                                        arguments to support their requests for                 workers should not be required to                      academies;
                                        exemption. Some commenters noted                        obtain a TWIC. One commenter argued                       • Emergency response personnel;
                                        that exemption criteria should be added                 that in some countries the law requires                   • 15.702(b) crew and other authorized
                                        to the proposed rule indicating that                    these vessels operating on the                         foreign nationals boarding U.S. vessels
                                        vessels and facilities that were deemed                 continental shelf to hire local                        overseas;
                                        low risk during a risk assessment should                crewmembers, so requiring escorts for                     • Employees who must continuously
                                        not fall under the TWIC requirement,                    all of these crewmembers would place                   enter and exit secure areas (e.g., baggage
                                        because TWIC places an unwarranted                      a large burden on these vessels and                    handlers at a cruise ship terminal);
                                        burden on these vessels and facilities                  cause them to be unable to work                           • Port chaplains or other religious
                                        with little added security benefit. For                 overseas. In addition, the commenters                  personnel;
                                        example, one commenter requested that                   argued that there is little threat posed by               • Workers who are not involved in
                                        oil and gas support facilities and                      these vessels that are located thousands               the transportation industry; and
                                        bunkering facilities be exempted from                   of miles from the U.S. coast. More than                   • Vessel agents.
                                        the TWIC requirements. Another                          one commenter stated that the ISPS                        The reasons presented by the
                                        commenter asked for an exemption                        Code and its implementing regulations                  commenters for granting the workers’ an
                                        since their activities and their location               in SOLAS recognize the need for                        exemption were varied. Some
                                        are low risk, predominately carrying                    MODUs and OSVs to employ non-U.S.                      commenters argued that passenger
                                        bulk and break bulk products within the                 citizens in their crew and apply shelf-                vessel staff who work within the same
                                        Great Lakes.                                            State standards instead of flag-state                  areas as the passengers who are not
                                           Similarly, other commenters argued                   standards. The TWIC program should                     subject to the requirement should not be
                                        that small vessels (e.g., inland towing                 recognize the need for these vessels to                required to obtain a TWIC.
                                        vessels, small passenger vessels) or                    employ non-U.S. citizens as well.                         Commenters argued that
                                        small ports should be exempt from the                      One commenter stated that it is their               crewmembers, service technicians, or
                                        TWIC requirements because the workers                   understanding that foreign-flagged                     repair persons performing vessel
                                        know each other and unknown visitors                    MODUs (OCS facilities) that are on                     maintenance and repairs should not be
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                                        are infrequent. These commenters                        location on the OCS would be excluded                  required to obtain a TWIC because they
                                        argued that the intent of the TWIC                      from the requirements, since foreign                   do not present a security risk and
                                        system, to identify those people who                    vessels with valid ISPS Code certificates              additionally because there are not
                                        pose a threat, would not be served by                   are in compliance with 33 CFR part 104                 enough vessel and facility staff to escort
                                        installing card readers on small vessels                (except 104.240, 104.255, 104.292, and                 these workers.

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                                                         Federal Register / Vol. 72, No. 16 / Thursday, January 25, 2007 / Rules and Regulations                                          3519

                                           One commenter asked that the                         TWICs for unescorted access to secure                  etc., are held to and comply with
                                        proposed provision exempting foreign                    areas.                                                 equivalent standards.
                                        vessels be expanded to also exempt                         As a result of numerous comments                       Another commenter urged that an
                                        ‘‘foreign nationals employed on U.S.                    and concerns regarding reader usage                    accurate cost-benefit analysis must
                                        vessels under the provisions of 46 CFR                  and installation aboard facilities and                 factor in the cost of vessel operating
                                        15.720(b) or who are authorized visitors                vessels in addition to emerging                        companies that are forced out of
                                        aboard a U.S.-flagged vessel operating                  technology, this final rule addresses use              business because they cannot compete
                                        from or in foreign ports.’’                             of the TWIC as a visual identity badge                 with foreign competitors in the Gulf of
                                           Many commenters requested                            and does not require use of readers. We                Mexico who have been exempted from
                                        exemptions for emergency response                       will consider those comments                           these requirements.
                                        personnel and law enforcement officers.                 requesting that the risk among all MTSA                   Other commenters argued that the
                                           More generally, commenters                           regulated vessels and facilities be                    proposed regulations overlook the area
                                        suggested that workers should be                        reevaluated when we propose reader                     of greatest interest to national security,
                                        exempt from the TWIC requirements                       standards in a subsequent rulemaking.                  namely the traffic of foreign vessels and
                                        until they go to work for a company that                   Understanding the unique situations                 foreign seafarers at U.S. ports and
                                        needs to conduct business in a secure                   where successful commerce and support                  maritime facilities, while imposing
                                        area. In addition, commenters requested                 of the maritime industry is dependent                  additional regulation on American
                                        that workers without access to restricted               upon legal employment or boarding of                   mariners who already undergo thorough
                                        areas of vessels or terminals not be                    foreign mariners or crew while                         vetting, and U.S. vessels that already
                                        required to obtain a TWIC.                              operating outside of U.S. waters, we                   operate under a vessel security plan
                                           MTSA was clear and unambiguous                       determined that we must change some                    compliant with the MTSA. One
                                        and ruled out blanket waivers for the                   language from the proposed rule. As                    commenter claimed that a security
                                        requested industry segments or specific                 such, we are adding a provision to the                 threat posed by individuals on a foreign-
                                        job descriptions. Essentially, all                      definition of secure area in § 101.105                 flagged vessel moored at a U.S. port is
                                        individuals must hold a TWIC in order                   that states that U.S. vessels operating                no less of a security threat than persons
                                        to be eligible for unescorted access to                 under the waiver provisions found in 46                aboard a U.S. vessel, and objected that
                                        secure areas of MTSA-regulated                          U.S.C. 8103 (b)(3)(A) or (B) have no                   TSA has decided to forgo security
                                        facilities or vessels. Where needed and                 secure areas. These waiver provisions                  requirements for foreign-flagged vessels.
                                        allowed by statute, certain arrangements                allow U.S. vessels to employ foreigners                One commenter expressed that DHS has
                                        or exemptions were proposed and                         as crew in certain circumstances. As                   not conducted any analysis as to
                                        modified as the result of the public                    soon as the vessel ceases operating                    whether foreign mariners who do not
                                        comments to identify special cases                      under these waiver provisions, it will be              participate in SOLAS or ISPS pose
                                        where individuals without a TWIC or                     deemed to have secure areas as                         homeland security threats. One
                                        who are unable to obtain a TWIC can                     otherwise defined, and TWIC provisions                 commenter stated that the Coast Guard
                                        continue to work aboard MTSA-                           will apply.                                            has not fully considered the impact of
                                        regulated facilities or vessels subject to                 Additionally, facility owners/                      its requirement to grant access to foreign
                                        additional security provisions.                         operators can affect the population of                 nationals who have not been vetted by
                                           These special cases include the                      those who will need to obtain a TWIC                   TSA.
                                        foreign vessel exemption, a new                         by taking advantage of the option given                   One comment stated that because
                                        provision within the definition of secure               to them in revised § 105.115 and                       foreign mariners are not required to
                                        area stating that in certain                            redefining their ‘‘secure area’’ as only               hold a TWIC under the proposed rule,
                                        circumstances, U.S. vessels operating in                that portion of their access control area              if the entire terminal is classified as a
                                        foreign waters do not have secure areas,                that is directly related to maritime                   ‘‘secure area,’’ crewmen that have
                                        the passenger and employee access                       transportation. The Coast Guard must                   docked at berth and have been cleared
                                        areas, and the provision allowing part                  approve such modifications.                            by CBP must be escorted every time
                                        105 facilities to amend their security                                                                         they leave the ‘‘restricted area’’ of the
                                        plans to limit their secure area to only                (b). Applicability—Foreign Vessels
                                                                                                                                                       pier. The commenter notes that if they
                                        those portions of their facility that are                 One commenter supported the                          are already in the restricted area they do
                                        related to maritime transportation.                     proposed exemption for foreign flag                    not have to be escorted, but if they enter
                                           When issuing the regulations found in                vessels calling on U.S. ports. The                     that part of the secure area that is not
                                        33 CFR chapter I, subchapter H (known                   commenter stated that this would                       restricted, they must have an escort. The
                                        as the Coast Guard MTSA regulations),                   include not requiring a valid TWIC to                  commenter asked that, since CBP has
                                        which establish who must submit a                       access vessel-designated restricted areas              already made a determination whether
                                        security plan, the Coast Guard utilized                 and the need for TWIC readers aboard                   these mariners pose a risk to our
                                        a risk based approach to identify and                   foreign flag vessels. However, many                    country, why then does a low
                                        separate those particular facilities and                commenters disagreed with this                         consequence terminal have to make sure
                                        vessels which pose a higher risk from                   provision for various reasons. Some                    they are escorted if they pose no risk?
                                        those which pose a lower risk. While we                 commenters stated that there is a need                    One comment said the proposed rule
                                        agree with the argument that one                        for application of international                       does not clearly indicate whether a
                                        MTSA-regulated facility or vessel can                   standards to all ships, U.S. and foreign,              foreign vessel must obtain, deploy, and
                                        pose a lower risk than another MTSA                     to maintain a level playing field and                  operate TWIC readers at its access
                                        regulated facility or vessel, the fact                  prevent economic discrimination                        points on the vessel. However, the
                                        remains that all have already been                      against U.S. ships. For example, one                   commenter said that the proposed rule
                                        determined to present a high enough                     commenter stated that security within                  appears to exempt foreign vessels from
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                                        risk of a TSI to warrant their inclusion                the Gulf of Mexico will not be ensured                 using TWIC readers.
                                        in the MTSA regulations. The statute                    until the foreign vessels that routinely                  Foreign vessels carrying valid ISPS
                                        requires all MTSA regulated vessels and                 operate in support of the offshore oil                 Certificates do not fall within the TWIC
                                        facilities to comply with the access                    and gas industry, and call on Gulf ports               applicability of the MTSA, as they are
                                        control requirements by requiring                       such as Fourchon, Galveston, Mobile,                   not carrying security plans approved by

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                                        3520             Federal Register / Vol. 72, No. 16 / Thursday, January 25, 2007 / Rules and Regulations

                                        the Secretary under 33 U.S.C. 70103.                    will be required to have escorted access                  Some commenters also stated that
                                        MTSA requires compliance with TWIC                      through secure areas of the facility.                  ensuring the security of freight moving
                                        requirements for vessels or facilities                     One commenter urged that a further                  in from foreign ports was a more
                                        whose plans include an area designated                  provision be added at new § 104.105(e)                 important issue than TWIC.
                                        as a secure area by the Secretary for                   to read as follows: ‘‘(e) Foreign nationals               One commenter noted that under the
                                        purposes of a security plan approved                    employed on U.S. vessels in accordance                 proposed rule many commercial fishing
                                        under sec. 70103. The vast majority of                  with the provisions of 46 CFR 15.720 or                vessels will not be required to obtain a
                                        foreign vessels do not submit their plans               who are authorized visitors aboard U.S.                TWIC. The commenter argued that the
                                        to the Secretary, and therefore are not                 flag vessels operating from or in foreign              TWIC program should include all
                                        ‘‘secure areas’’ even when the foreign                  ports are not subject to the TWIC                      commercial vessels, since commercial
                                        vessel is docked at a U.S. port. However,               requirements found in this part.’’                     fishing vessels could easily be used as
                                        when docked at a U.S. port, individuals                    As noted above, we are adding a                     a terrorist target.
                                        on the foreign vessels are subject to the               provision to the definition of secure area                We do not agree with these
                                        facility’s security plan—including TWIC                 in § 101.105 that states that U.S. vessels             comments. As discussed above, the vast
                                        and escorted access requirements—if                     operating under the waiver provisions                  majority of foreign vessels are not
                                        they wish to leave the foreign vessel.                  found in 46 U.S.C. 8103 (b)(3)(A) or (B)               required to have a security plan under
                                           We do not agree that sec. 102 of the                 have no secure areas. These waiver                     MTSA and thus do not constitute secure
                                        MTSA applies to foreign seafarers                       provisions allow U.S. vessels to employ                areas for purpose of the TWIC program.
                                        arriving on foreign vessels. The TWIC                   foreigners as crew in certain                          In regard to the security concerns cited
                                        process cannot practically or                           circumstances. The effect of this change               by the commenters, however,
                                        meaningfully be applied to foreign                      is to exempt these vessels from the                    individuals from foreign vessels who
                                        mariners, who would not likely have the                 TWIC requirement while they are                        wish to leave the vessel while docked at
                                        means to get to enrollment centers or to                operating under the referenced waivers.                a U.S. port are required to be escorted
                                        return to claim and activate their                      As soon as the vessel ceases operating                 through secure areas on MTSA-
                                        credentials, nor would any be able to                   under these waiver provisions, it will be              regulated facilities. Further, each and
                                        present the appropriate identity                        deemed to have secure areas as                         every foreign mariner wishing to step off
                                        documents, or meet the requirement for                  otherwise defined, and TWIC provisions                 of a vessel onto U.S. soil must be issued
                                        lawful presence. Requiring foreign                      will apply.                                            a visa from the Department of State, and
                                        seafarers to present a TWIC would mean                     Many commenters stated that not                     be admitted by CBP into the United
                                        that before being allowed off of a foreign              requiring foreign vessels and foreign                  States.
                                        vessel, each foreign seafarer would need                crews to obtain a TWIC would be                           In addition, the Federal government
                                        to come to the United States to enroll in               detrimental to U.S. maritime security.                 has a variety of programs in place to
                                        the TWIC program, and then again to                     One commenter noted that this policy                   identify potential security risks from
                                        pick up their TWIC. It is also not clear                would put U.S. offshore oil and gas                    foreign vessels and crew members
                                        that such a provision would provide any                 supplies at risk. One commenter                        entering U.S. ports. For example, the
                                        security benefit, as the criminal                       pointed out that currently a large                     Coast Guard’s Notice of Arrival
                                        background checks that are done as part                 portion of the ships transporting oil and              requirements (33 CFR part 160, subpart
                                        of the TWIC security threat assessment                  hazardous materials are foreign vessels                C), U.S. Coast Guard Port State Control
                                        would have very little meaning, since it                with foreign crews.                                    Examinations, vessel escorts, and crew
                                        is unlikely that a foreign seafarer will                   Another commenter noted that 95                     list, cargo and last port of call screening,
                                        have a criminal record in the United                    percent of the vessels sailing from                    foreign port inspections and similar
                                        States, and the additional background                   international waters into U.S. ports are               programs have been in place for several
                                        checks are done during the visa                         crewed by foreign mariners, so although                years to reduce the risk posed by certain
                                        application and CBP screening                           vetting these foreign mariners would be                foreign-flagged vessels transiting or
                                        processes (see below). Finally, placing                 very difficult it is necessary to enhance              calling U.S. ports.
                                        such requirements on foreign seafarers                  U.S. port security. The commenter                         Additionally, under CBP’s Advance
                                        would certainly affect the treatment U.S.               pointed out that U.S. mariners are                     Passenger Information System (APIS)
                                        mariners receive in other countries.                    already subject to background checks                   (19 CFR 4.7), vessels (both foreign and
                                           We also disagree that the TWIC                       during the licensing procedure, so                     U.S.-flagged), must provide manifest
                                        subjects U.S. maritime workers and                      including U.S. mariners, while                         information on all passengers and crew
                                        mariners to stricter processes than                     exempting foreign mariners from the                    no later than 24 hours and up to 96
                                        foreign seafarers. Currently, foreign                   TWIC program will not enhance U.S.                     hours prior to the vessel’s entry at a U.S.
                                        seafarers arriving on foreign vessels are               port security.                                         port. The data that must be provided by
                                        required to have a U.S. visa, issued by                    Numerous commenters expressed                       the vessel to CBP includes: the country
                                        the Department of State subsequent to at                concern about uncredentialed foreign                   that issued the passport or alien
                                        least one face-to-face interview and a                  mariners. One argued that if licensed                  registration number; the passenger’s or
                                        vetting process that is similar to TWIC                 and documented American mariners                       crew member’s full name, date of birth,
                                        vetting. Upon arrival in the U.S., foreign              must hold a TWIC, foreign workers on                   passport or alien registration number,
                                        mariners are not allowed to leave the                   American flag vessels should also be                   country of residence, visa number,
                                        vessel until and unless they are allowed                required to hold proper security                       originating foreign port and final port of
                                        entry after inspection by a CBP Officer.                credentials. Many commenters argued                    destination. Id. The manifest
                                        Those seafarers that arrive without a                   the necessity of covering foreign                      information is compared against
                                        visa or a CBP issued waiver are                         nationals working as drivers in domestic               terrorist watchlist information by CBP.
                                        restricted to the vessel. Seafarers that                facilities such as ports and foreign                      Commercial fishing vessels are not
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                                        are allowed to leave the vessel are                     crewmen on foreign vessels, such as                    subject to 33 CFR subchapter H and
                                        subject to the security provisions of the               Liquified Natural Gas (LNG) tankers.                   therefore are not included in the
                                        facilities where their vessel is moored,                Comments came from a wide variety of                   congressional mandate for TWIC. As
                                        including the conditions by which they                  maritime and trucking industry                         noted in the interim final rule published
                                        are allowed to traverse the facility, and               associations, and individuals.                         on July 1, 2003, titled ‘‘Implementation

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                                                         Federal Register / Vol. 72, No. 16 / Thursday, January 25, 2007 / Rules and Regulations                                           3521

                                        of National Maritime Security                              Under this rule, every mariner,                     regardless of whether they are licensed
                                        Initiatives,’’ commercial fishing vessels               whether holding a credential from the                  or unlicensed. (See 46 U.S.C.
                                        were determined to be at a low risk of                  Coast Guard or not, who requires                       70105(b)(2)(A)). We disagree with the
                                        a TSI during the initial risk assessment                unescorted access to a secure area of a                commenters who felt that the TWIC
                                        and therefore were not included in the                  MTSA-regulated vessel or facility will                 requirement was ‘‘not mandatory.’’
                                        applicability for 33 CFR subchapter H                   need to have a TWIC.                                   Mariners will not be able to renew their
                                        (see 68 FR 39246–7).                                       Another commenter, an owner of                      credentials without a TWIC, and vessel
                                           One commenter stated that there are                  vessels and facilities, noted that they                and facility owners/operators have an
                                        many reasons for foreign seafarers to be                currently are not required to have VSPs                enforceable responsibility to ensure that
                                        allowed to traverse the facility (i.e.,                 or FSPs, however, the proposed rule                    only persons holding TWICs be granted
                                        reading draft marks, completing a                       indicates that their licensed employees                unescorted access to secure areas. If an
                                        Declaration of Security (DoS), required                 will now need to obtain a TWIC. The                    individual shows up for work without a
                                        training, making phone calls, medical                   commenter stated that making a                         TWIC, and his or her employment
                                        and humanitarian needs). The                            licensed employee obtain a TWIC when                   would call for unescorted access within
                                        commenter argued that to only mention                   the workplace is non-secure does not                   a secure area, it is the duty of the
                                        crew changes and shore leave does not                   make sense. In addition, the commenter                 owner/operator to either turn that
                                        advise facility operators and Federal                   noted that only requiring licensed                     individual away or provide an escort,
                                        officials that there are other legitimate               crewmembers to obtain a TWIC, but                      but there is nothing stating that the
                                        reasons for seafarers to be granted access              exempting unlicensed crewmembers,                      owner/operator must allow the
                                        to portions of a facility.                              does not make sense. One commenter                     individual access of any kind. We have
                                           We agree that there are legitimate                   suggested that this could become very                  provided for limited exceptions to this,
                                        reasons for foreign seafarers to require                burdensome for the vessels and                         to cover newly-hired individuals who
                                        limited access to facilities. Recognizing,              facilities, since individuals may choose               have applied for their TWIC but have
                                        in particular, that seafarers, whether                  not to obtain a TWIC and thus will have                not yet received it, and to cover those
                                        foreign or U.S., will require access to                 to be escorted while in secure areas. The              individuals who have reported their
                                        facility areas to conduct vessel                        commenter recommended that TSA and                     card as lost, damaged, or stolen. These
                                        operations, such as reading drafts,                     Coast Guard make the TWIC mandatory.                   provisions can be found in the access
                                        adjusting mooring lines, securing shore                    Many individual commenters and                      control sections of parts 104, 105, and
                                        ties, completing a declaration of security              commenters from mariners’ associations                 106.
                                        (DoS), and loading stores, we have                      argued that domestic merchant seamen
                                        included a provision to allow mariners                  are already required to obtain                         (d). TWIC Eligibility—Foreign Workers
                                        limited access immediately adjacent to                  documentation, and that an additional                     Many commenters argued that foreign
                                        their vessels to conduct these                          burden should not be placed on them.                   workers who have already obtained
                                        operations. Limiting the access in this                 Several said that domestic professional                work visas and have been cleared by
                                        manner takes operational realities into                 mariners should be considered partners                 CBP should be allowed to obtain a
                                        account without adversely impacting                     in security, because they have a vested                TWIC, even though they are not resident
                                        security. Also recognizing this need                    interest in a secure workplace.                        aliens. For example, some commenters
                                        applies to U.S. vessels not covered by 33               Commenters stressed that the rule                      pointed out that trained foreign experts
                                        CFR part 104 when moored at a part                      should recognize the difference between                with work visas are often used on U.S.-
                                        105-regulated facility, this provision is               ‘‘bluewater’’ international operations                 flagged industrial vessels to assist with
                                        also granted to U.S. mariners on vessels                and ‘‘brownwater’’ domestic operations                 specialized work. The commenters
                                        not covered by part 104 who would not                   on inland waterways, because the latter                argued that requiring an escort for these
                                        otherwise be required to possess a                      do not pose the same threat to national                workers who have already been cleared
                                        TWIC.                                                   security. Several commenters also                      by the CBP and obtained the appropriate
                                                                                                argued that the economic effect of the                 work visas, would be burdensome and
                                        (c). Applicability—Mariners
                                                                                                proposed rule would be to place                        unnecessary. These commenters pointed
                                           One commenter requested                              domestic maritime workers, such as                     out that just as the NPRM states that
                                        clarification about whether every                       those in the offshore oil and gas                      Mexican and Canadian truckers need to
                                        uncredentialed mariner (e.g.,                                                              `
                                                                                                industry, at a disadvantage vis-a-vis                  have access to facilities, offshore vessels
                                        crewmember) requiring unescorted                        foreign competitors.                                   need to allow specialized foreign
                                        access to secure areas of vessels and                      The final rule applies to all licensed              workers on their vessels. Other
                                        facilities will require a TWIC. Many                    mariners, regardless of where they work,               commenters stated that the proposed
                                        crewmembers who have unescorted                         and workers needing unescorted access                  rule is more stringent than what is
                                        access to secure areas of vessels and                   to secure areas of vessels, facilities, and            required by law.
                                        facilities are not required to have                     OCS facilities currently regulated by                     Several commenters noted that as a
                                        credentials (e.g., up to 17,000                         parts 104, 105, and 106. Licensed                      multinational corporation they have
                                        crewmembers on inland and river                         mariners, regardless of their employer or              foreign employees and foreign business
                                        towing vessels up to 1,600 GRT;                         working location, must obtain TWICs                    partners at their U.S. facilities, so if
                                        crewmembers on small passenger                          due to sec. 102 of MTSA (46 U.S.C.                     these employees and business partners
                                        vessels up to 100 GRT; and offshore                     70105(b)(2)(B)), which states that the                 cannot obtain a TWIC it will create a
                                        towing vessels up to 100 GRT), noted                    TWIC requirement applies to ‘‘an                       large burden for their corporations. The
                                        one commenter. Therefore, the                           individual issued a license, certificate of            multinational corporations will face a
                                        commenter argued that the proposed                      registry, or merchant mariners                         burden not only from having to provide
                                        rule needs to make it clear that every                  document under part E of subtitle II of                escorts for their foreign employees and
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                                        uncredentialed mariner requiring                        this title.’’ Additionally, the statute                foreign business partners, but also from
                                        unescorted access to secure areas of the                requires that any individual requiring                 lost business due to foreign business
                                        vessels (especially small passenger                     unescorted access to secure areas of a                 partners choosing not to work with U.S.
                                        vessels, offshore supply vessels or                     vessel or facility regulated by 33 CFR                 multinational corporations due to the
                                        facilities) will need a TWIC.                           part 104, 105, or 106 obtain a TWIC,                   extra hassles.

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                                        3522               Federal Register / Vol. 72, No. 16 / Thursday, January 25, 2007 / Rules and Regulations

                                           We recognize that this population of                     the Coast Guard provisions of the final              answer, and we expect that in the
                                        workers is essential to the maritime                        rule. The final rule allows individuals to           majority of these cases, the owner/
                                        transportation industry and that there                      serve on an AMS Committee after the                  operator will get a TWIC due to his/her
                                        would be significant impacts to facilities                  completion of a name-based terrorist                 need to have unescorted access to the
                                        if they were not able to obtain                             check from TSA. FMSCs (i.e. COTPs)                   vessel or facility. However, larger,
                                        unescorted access to carry out their                        will forward the names of these                      multi-national, publicly traded
                                        work. As a result, we have amended the                      individuals to TSA or Coast Guard                    companies pose a much bigger problem.
                                        final rule to allow additional foreigners,                  Headquarters for clearance prior to                  It would be impractical for TSA to run
                                        holding certain work visas, to apply for                    sharing SSI with these members.                      background checks and issue TWICs to
                                        a TWIC. These provisions are discussed                                                                           anyone holding stock in a company that
                                                                                                    (f). Applicability—Owners/Operators
                                        in more detail in the TSA section below.                                                                         may own a facility or vessel regulated
                                           We do not believe, however, that                            The proposed rule requested                       under MTSA. Additionally, these
                                        TWICs should be issued to anyone who                        comment on whether owners/operators                  companies may be structured in such a
                                        has been granted a work visa and                            of vessels, facilities, and OCS facilities           manner that a bank or several large
                                        cleared by CBP. While foreign                               should be required to obtain a TWIC,                 holding companies are actually the
                                        workers—either immigrant or                                 based on their access to SSI. Some                   owners, but they have little to no input
                                        nonimmigrant—may be subject to                              commenters argued that requiring those               on the day to day operations at the
                                        certain screening to obtain a visa or to                    who have already been screened for                   facility or vessel. We reiterate, however,
                                        enter the country. However, these                           their access to SSI to obtain a TWIC                 that any individual, including owners
                                        individuals do not undergo the                              based solely on their access to SSI                  and operators, who wishes to have
                                        comprehensive security threat                               would be an unnecessary waste of                     unescorted access to secure areas must
                                        assessment necessary to allow a person                      money and resources. These                           have a TWIC.
                                        unescorted access to a secure facility.                     commenters noted that not all SSI is                    As such, we have not included the
                                                                                                    sensitive enough to require the kind of              TWIC requirement for owners/operators
                                        (e). Applicability—Area Maritime                            background check that will be a part of              in this rule. We will, however, continue
                                        Security (AMS) Committee Members                            TWIC. A few commenters noted that the                to examine the issue, and may propose
                                           The NPRM proposed requiring that all                     owner/operator should determine who                  adding this requirement in the future.
                                        AMS Committee members obtain a                              in their corporation needs to obtain a
                                        TWIC. Several commenters stated that                        TWIC and who needs access to SSI. One                (g). Applicability—Federal/State/Local
                                        they agreed with this provision of the                      commenter noted that this question                   Officials
                                        proposed rule. For example, one                             pertains to 49 CFR part 1520, which was                 The proposed rule states that Federal
                                        commenter noted that if the rule is not                     not defined as being within the scope of             officials are not required to obtain a
                                        applied equally to all parties it will have                 this rulemaking, although it defines SSI             TWIC, but must have an HSPD–12
                                        little value. Other commenters stated                       and provides standards for access to and             compliant identification. Several
                                        that they did not agree with this                           control of SSI. Therefore, although 46               commenters agreed with this provision
                                        provision and felt that AMS Committee                       U.S.C. 70105(b)(2)(E) permits the                    because to obtain the HSPD–12
                                        members should not have to obtain a                         Secretary to determine that individuals              compliant identification cards, the
                                        TWIC. Some of these commenters                              with access to SSI must have a TWIC,                 applicant is subject to the same or more
                                        argued that the TWIC is not a tool to                       this issue should be the subject of a                rigorous level of threat assessment that
                                        clear individuals for access to SSI 21, but                 separate rulemaking addressing the                   will be required for the TWIC (e.g.,
                                        is a tool to assist facility and vessel                     provisions of 49 CFR part 1520. One                  background investigations, fingerprints).
                                        owners in implementing access control.                      commenter argued that owners and                     Other commenters noted technological
                                        The commenters argued that since some                       operators should be subject to the TWIC              issues that will need to be resolved if
                                        of the AMS Committee members do not                         requirements, since they have access to              Federal officials are allowed to use
                                        need access to secure maritime areas                        SSI. Another commenter argued that                   HSPD–12 compliant credentials in place
                                        and all of the AMS Committee members                        owners and operators should be                       of the TWIC. Several commenters
                                        have already undergone the screening                        required to obtain a TWIC. They argued               emphasized that it is necessary for the
                                        for access to SSI, the AMS Committee                        that owners’ and operators’ open access              TWIC equipment to be able to read the
                                        members should not have to obtain a                         to secure areas and SSI by virtue of their           HSPD–12 compliant credentials or
                                        TWIC. In addition, commenters noted                         position, warrants their need for the                validate the cards’ continued validity.
                                        that requiring the AMS Committee                            TWIC. This commenter went on to argue                Another commenter requested that
                                        members to obtain a TWIC would                              that not requiring owners and operators              § 101.514(b) be clarified, so it is clear
                                        increase the costs associated with                          to obtain the TWIC would amount to                   that Federal officials are still subject to
                                        membership and thus discourage                              rank discrimination. They sited the                  the facility’s access control
                                        membership.                                                 Dubai Ports World controversy as                     requirements and presenting their
                                           After reviewing these comments, we                       further evidence of the need for owners/             credentials does not grant them
                                        have decided to refine the TWIC                             operators to obtain a TWIC.                          unescorted access to the facility. In
                                        requirement in regard to AMS                                   The final rule does not include a                 addition, several commenters noted that
                                        Committee members, as explained                             requirement that all owners/operators                the proposed rule must include a
                                        above in the discussion of changes to                       obtain a TWIC. We reviewed all of the                requirement that Federal officials obtain
                                                                                                    comments received and agree with the                 an HSPD–12 compliant ID on the same
                                           21 ‘‘SSI’’ is unclassified information that is subject
                                                                                                    idea that an owner/operator, due to                  schedule as the merchant mariners will
                                        to disclosure limitations under statute and TSA
                                        regulations. See 49 U.S.C. 114(s); 49 CFR part 1520.
                                                                                                    access to SSI access and ability to                  be required to obtain TWICs and MMCs.
                                        Under 49 U.S.C. 114(s), the Assistant Secretary of          control the company, should probably                    The final rule will require Federal,
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                                        TSA may designate categories of information as SSI          go through a background check.                       State and local officials, in the course of
                                        if release of the information would be detrimental          However, our difficulty comes in                     their official duties, to present their
                                        to the security of transportation. SSI may only be
                                        disclosed to persons with a need to know, such as
                                                                                                    determining who exactly the owner/                   current agency credentials for visual
                                        those required to carry out regulatory security             operator to be checked is. For small or              inspection to gain unescorted access to
                                        duties.                                                     closely-held companies, this is an easy              secure areas. We recognize the

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                                                         Federal Register / Vol. 72, No. 16 / Thursday, January 25, 2007 / Rules and Regulations                                            3523

                                        technological difficulties presently                       Federal agencies are already required               anyone would opt-in when it carries a
                                        facing the evolution of the biometric                   to implement HSPD–12, therefore there                  mandatory follow-up.
                                        readers. However, in the future, we                     is no need for either the Coast Guard or                 One commenter wants the Coast
                                        anticipate a separate rulemaking to                     TSA to do more than require that those                 Guard to insert language into the rule
                                        require an HSPD–12 compliant                            credentials be used. We believe State                  regarding voluntary application of the
                                        credential to be read by a biometric                    and local agencies may issue similar                   security plan as opposed to voluntary
                                        reader for gaining unescorted access. We                cards as the Federal government                        application of the TWIC program.
                                        must stress that Federal, State and local               completes implementing HSPD–12.                          As noted above in the discussion to
                                        officials will only use their authority to              Therefore, we are not requiring State                  changes to the Coast Guard provisions,
                                        gain unescorted access in the course of                 and local officials to obtain TWICs at                 this final rule no longer contains
                                        their official duties. Such officials must              this time. We may revisit this decision                provisions allowing for voluntary TWIC
                                        abide by a facility’s or vessel’s access                in the future. While all State and local               programs, therefore it is not necessary to
                                        control requirements unless extenuating                 officials may not be required to undergo               respond to these comments at this time.
                                        circumstances require otherwise.                        a security threat assessment comparable                These provisions have been eliminated
                                           Under the proposed rule, compliance                  to the TWIC, they will continue to                     due to the fact that neither TSA nor the
                                        would be voluntary for State and local                  utilize their existing authority to board              Coast Guard can, at this time, envision
                                        officials because the majority of these                 regulated vessels and enter regulated                  being in a position to approve voluntary
                                        individuals undergo a security threat                   facilities as needed for official business             compliance before the full TWIC
                                        assessment prior to beginning their job.                and should continue to be afforded                     program (i.e., reader requirements) is in
                                        However, several commenters argued                      access in accordance with existing                     place. We will keep it in mind,
                                        that this could be detrimental to                       approved security plans. However, we                   however, as we develop our NPRM to
                                        maritime security and is problematic for                encourage local and State officials to                 re-propose reader requirements.
                                        several reasons. First, not all State and               obtain TWICs to facilitate access to                   3. Coast Guard Roles
                                        local officials undergo a security threat               facilities and vessels when such access
                                        assessment. Second, it would be hard                    is a regular part of their duties.                        Several commenters expressed
                                        for crew members to determine if the                       Regarding the status of ‘‘port police’’             concern that the challenge to operators
                                        State or local official’s credential meets              who receive the same training and                      who service multiple ports increases as
                                        TWIC standards. Third, under this                       certification as local or State law                    each COTP is given broad authority to
                                        provision State and local officials would               enforcement officers being exempt from                 establish and enforce different
                                        not be subject to the background check                  the requirement to obtain a TWIC, we                   standards.
                                        every five years like other holders of the              disagree with the commenter. These                        We agree that consistency among
                                        TWIC. Another commenter noted that                      individuals can be exempt only if they                 different COTP zones is important and
                                        there have been instances in the past                   are actual State or local officials due to             that different COTP interpretations of a
                                        where local and State agencies have                     their employment status and statutory                  final rule, such as TWIC, can create a
                                        conducted their background checks                       law enforcement authority.                             challenge especially for those operators
                                        independently of their employee                            Other commenters requested                          who service multiple ports. We also
                                        application process. In addition, another               clarification of the applicability of the              agree that some degree of discretion and
                                        commenter noted that the threat of                      requirements of this final rule to                     flexibility is critical to the successful
                                        terrorists posing as armed local or State               emergency first responders other than                  implementation and enforcement of all
                                        enforcement officers is great, so there                 law enforcement, such as firefighters                  Coast Guard regulations throughout a
                                        needs to be a more thorough evaluation                  and emergency paramedics. We                           COTP Area of Responsibility. To
                                        of these individuals’ identity then just                recognize that emergency responders are                enhance nationwide consistency of the
                                        showing their ID. Several commenters                    an important part of any port. We have                 TWIC regulations, the Coast Guard will
                                        noted that those with the main                          extended the option to obtain a TWIC to                continue to create and distribute robust
                                        responsibility for port security (e.g., port            them, but the final rule has also been                 field guidance for use by all COTPs. In
                                        authority police who fall under the State               changed to state that emergency                        most cases, Coast Guard field guidance
                                        and local system) should be required to                 responders will not be required to show                is available to the public and industry
                                        get a TWIC, rather than make it                         a TWIC to gain unescorted access to                    for their own use in preparing for
                                        optional. One commenter specified that                  secure areas during emergency                          inspections and examinations. Should
                                        all armed law enforcement officials                     situations, such as natural disasters or               an operator feel that different
                                        should be required to obtain a TWIC.                    transportation security incidents. We do               interpretations of a particular regulation
                                           One commenter noted that under                       recommend that they obtain a TWIC if                   by two or more COTP are negatively
                                        § 101.514(c) State and local law                        they require unescorted access during                  impacting their operation, they are
                                        enforcement officials would not have to                 non-emergency situations.                              welcomed and encouraged to contact
                                        possess a TWIC to gain unescorted                                                                              the appropriate Coast Guard District
                                        access to secure areas. At the same time,               (h). Applicability—Voluntary
                                                                                                                                                       Commander for resolution.
                                        § 105.210 would require facility                        compliance                                                A commenter asked who would
                                        personnel responsible for security                         Two commenters wanted § 101.514(d)                  enforce the escort requirement and the
                                        duties to maintain a valid TWIC. The                    clarified regarding voluntary                          other TWIC requirements. The Coast
                                        commenter said that some ports have a                   implementation of a TWIC program.                      Guard will continue to be the primary
                                        police force comprised of certified                     They stated that the definition of a                   enforcement authority for all MTSA
                                        police officers who are required to                     TWIC program is confusing, and asked                   regulations.
                                        obtain the exact training as State and                  ‘‘[c]an a voluntary TWIC program be                       One commenter expressed concern
                                        local law enforcement personnel. The                    used for badging purposes only, but the                that the Coast Guard has been unable to
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                                        commenter recommended that either                       vessel or facility owner must still obtain             ascertain and report on the number and
                                        § 101.514(c) or § 105.210 be rewritten to               approval of a security plan in order to                types of valid merchant mariner licenses
                                        recognize these port police and remove                  use the card?’’ One commenter wants                    or merchant mariner documents in
                                        the requirement for them to obtain a                    the agencies to explain the opt-in                     existence at any time, and that this
                                        TWIC.                                                   reference from the NPRM, asking why                    suggests a limitation in its ability to call

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                                        3524             Federal Register / Vol. 72, No. 16 / Thursday, January 25, 2007 / Rules and Regulations

                                        on merchant mariners in response to a                   were to occur, mariners would be                       hours and days of operation are planned
                                        national emergency. This comment is                     required to apply for their MMC only at                to incorporate local industry input.
                                        addressing the Coast Guard Merchant                     the time they applied for their TWIC. As
                                                                                                                                                       4. Owner/Operator Requirements
                                        Mariner Credential (MMC) rulemaking,                    currently proposed, the MMC and TWIC
                                        and so we have not addressed it there.                  expiration dates need not align. This                     The proposed rule would have
                                           One commenter requested that the                     allows an individual who works at a                    required owners/operators of vessels,
                                        Coast Guard articulate its intentions                   port to decide later that he or she wants              facilities, and OCS facilities to ensure
                                        with regard to production of an                         to become a merchant mariner. In                       that security systems and equipment
                                        identification document complying with                  addition, for those mariners who                       were installed and maintained,
                                        the International Labour Organization                   already hold a MMD, License or                         including at least one TWIC reader that
                                        (ILO) standards for U.S. seafarers.                     Certificate of Registry (COR), they need               would meet the standard incorporated
                                           As the United States is not signatory                not renew their credential upon the                    by TSA in 49 CFR 1572.23. The
                                        to the International Labour Organization                initial issuance of their TWIC, because                proposed rule would have also required
                                        Seafarers’ Identity Document                            the effective period of their current                  that owners and operators ensure that
                                        Convention (Revised), 2003 (ILO–185),                   credential is not affected by this                     computer and access control systems
                                        no plans have been made at this time to                 proposed regulation. If we were to                     and hardware are secure.
                                        produce an identification document                      require only one background check by                      Several commenters argued that
                                        complying with that particular standard.                TSA for all mariners, the mariner                      MTSA only mandates TWICs
                                           Several commenters suggested that                    credential would have to come into line                themselves and does not require TWIC
                                        the background checks for TWIC be                       with the expiration date of the TWIC.                  readers and their associated equipment.
                                        combined with those required for MMC.                   Requiring mariners who already hold                    Other commenters were confused as to
                                        Two commenters suggested that TSA                       credentials to renew so that their                     whether the proposed rule would allow
                                        perform the security threat assessments                 credential’s expiration date matches                   one TWIC reader for an entire vessel
                                        for Merchant Mariner Documents                          their TWIC expiration date is currently                and facility or would require a TWIC
                                        (MMDs) as well as TWICs and that the                    impossible from a legal standpoint due                 reader at all access points to secure
                                        Coast Guard use the results of such                     to the statutory requirement that                      areas.
                                        assessments in its processing of MMD                    Licenses and MMDs must have a 5 year                      Many commenters said that the
                                        applications. Others suggested that the                 validity period under 46 U.S.C. 7106                   requirement to place at least one TWIC
                                        consolidated review process should be                   and 46 U.S.C. 7302. Such a requirement                 reader on every vessel would be costly
                                        carried out by Coast Guard.                             would inherently shorten that 5 year                   and would not improve security,
                                           At this time, the option of having TSA               duration. Finally, requiring only one                  particularly on small vessels such as
                                        or Coast Guard conduct all the required                 security/safety/suitability criminal                   towboats. Some commenters argued that
                                        background checks for individuals who                   record review by TSA at the time of                    their vessel crews are small and that the
                                        require both the MMCs and the TWIC is                   application would affect individuals                   presence of any unauthorized
                                        not feasible. TSA has established a                     who would like to seek raises in grade                 individuals would be readily apparent.
                                        system and process for ensuring                         or new endorsements on their MMC                       Several of these commenters requested
                                        individuals applying for the TWIC                       during the 5 year validity period.                     that the final rule waive the requirement
                                        undergo a consistent security threat                       One commenter expressed concern                     for TWIC readers for passenger vessels.
                                        assessment and the Coast Guard already                  about unanticipated impediments to                        One commenter stated that TWIC
                                        has the authority and process in place                  international transportation resulting                 readers should not be required in a
                                        for conducting the required safety and                  from TWIC, particularly regarding rail                 ship’s interior unless required by the
                                        suitability checks for mariners prior to                transportation. This commenter urged                   vessel’s security plan, because existing
                                        issuance of credentials. To create a                    Coast Guard and TSA to be prepared to                  vessel security plans already adequately
                                        unique system of background checks for                  respond quickly to interpret the new                   address such security concerns. The
                                        approximately one fifth of the expected                 regulations and address other                          commenter argued that the locations of
                                        initial TWIC population would create                    unanticipated issues.                                  TWIC readers should be dictated by the
                                        the need for additional infrastructure                     We agree that both TSA and Coast                    risk assessment performed for the
                                        within one agency and raise costs for                   Guard should be prepared to make                       vessel’s security plan.
                                        the government and the entire TWIC                      modifications to the TWIC program if                      One commenter requested that the
                                        population. In addition, the Coast Guard                needed; any amendments will follow                     final rule allow one TWIC reader for a
                                        has more expertise and authority over                   existing requirements for changes to                   facility and the vessels that operate from
                                        the merchant marine than TSA and is in                  published regulations.                                 that facility, as long as the facility’s
                                        a much better position to determine                        One commenter expressed a desire for                security plan incorporates the vessel
                                        whether an applicant is safe and                        standardization of the application                     operations or the facility and vessels
                                        suitable to serve in the merchant marine                process for TWIC or MMD across all                     have separate approved security plans.
                                        at the rate or rating sought. At this time,             regions of the country.                                Another commenter said that the use of
                                        the most efficient and cost effective                      We agree that a standard application                card readers should be optional for
                                        method available for issuing TWICs to                   process for TWIC and MMD (to be                        facilities and vessels until experience is
                                        credentialed mariners is to have TSA                    replaced by the MMC) is desirable and                  gained and best practices are developed
                                        conduct the security threat assessment                  a reasonable goal. It is our expectation               within the industry.
                                        and issue the identity document (TWIC)                  that all forms, instructions and data                     One commenter requested that the
                                        while the Coast Guard continues to                      collection and processing procedures                   final rule require that facility operators
                                        issue the mariner’s qualification                       will be standardized, but not combined,                ensure that all readers deployed are
                                        document (MMD/License/MMC).                             for the TWIC and MMC. As stated                        fully functional and operational to
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                                           In addition, requiring only one                      earlier, some degree of flexibility will be            ensure that all gates are accessible for
                                        criminal record review for both security                necessary for local TSA and Coast                      truck drivers and other affected
                                        and safety-related crimes by one agency                 Guard authorities to best serve the local              personnel to use.
                                        would negatively impact mariner                         operators and customers. For example,                     Because the use of readers is not
                                        flexibility. If only one background check               TWIC enrollment center locations,                      required by this final rule, concerns

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                                                         Federal Register / Vol. 72, No. 16 / Thursday, January 25, 2007 / Rules and Regulations                                         3525

                                        related to the value or drawbacks related               backup processes into their plans. The                    Foreign-flagged vessels, including
                                        to requiring readers have been deferred.                commenter said that TSA and Coast                      cruise ships, and their crews are exempt
                                        A more complete discussion of why                       Guard should provide some                              from the TWIC provisions, as set forth
                                        recordkeeping requirements are no                       recommended alternatives. Another                      in 33 CFR part 104. If the CSO is not a
                                        longer included may be found below in                   commenter expressed an interest in                     U.S. national or legally authorized to
                                        the section discussing recordkeeping                    having consistency in the backup                       work in the United States, he/she may
                                        requirements.                                           processes used by ports and urged TSA                  be eligible for a TWIC depending on
                                           One commenter said that                              and Coast Guard to be more prescriptive                whether he/she has applied for and
                                        § 105.200(b)(8) requirements for                        on this matter.                                        received certain types of U.S. visas. We
                                        adequate coordination of security issues                  One commenter noted the NPRM                         have expanded the eligibility for
                                        between the facility and vessels that call              stated that if the TWIC reader breaks,                 persons working under valid work visas
                                        on it are problematic for both passenger                security personnel should know how to                  to open TWIC eligibility to as many of
                                        facilities and vessels. The commenter                   compare the picture on the TWIC with                   these individuals as possible.
                                        asked that the subparagraph be modified                 the person’s face or have someone                         One commenter said that the
                                        to reference only those that access                     vouch for that individual. The                         proposed rule should be amended to
                                        secure or restricted areas, not the entire              commenter then asked if matching a                     provide the CSO with the authority to
                                        facility.                                               person’s face to his or her picture is an              implement acceptable alternative
                                           The referenced paragraph, while                      acceptable approach to screening, why                  screening measures for unescorted
                                        redesignated, was unmodified by the                     that method of screening is not an                     access to a vessel when the use of
                                        NPRM or this final rule and, therefore,                 acceptable alternative to the readers                  TWICs is impractical, unreasonable, and
                                        no changes to the provision were                        more generally. Two commenters said                    vessel security is not compromised. In
                                        considered.                                             that they supported the inclusion of                   particular, the commenter requested
                                           One commenter said that the                          language that allows operators to                      that the CSO be empowered with the
                                        proposed rule does not adequately                       include protocols for responding to                    discretionary authority to modify or
                                        address a facility’s responsibility to log              TWIC holders who cannot electronically                 exempt TWIC-controlled unescorted
                                        seafarers off the ship and onto the                     verify a match between themselves and                  access and use the currently accepted
                                        facility for routine ship operations. The               the information stored in the cards.                   procedure of a positive photo-
                                        association asserted that the ship and its                Because the reader requirement has                   identification along with verification
                                        crew, by virtue of its clearance by                     been removed from this final rule, we                  from the worker’s company.
                                        Federal officials to enter port and begin               believe that further discussion of what                   Alternative Security Programs (ASPs),
                                        cargo or passenger operations, should be                would constitute acceptable alternate                  proposed and implemented pursuant to
                                        considered a part of the facility and                   security procedures should the TWIC                    the existing regulations, will be
                                        logging off the ship should not be                      system fail would be better addressed                  available to owners/operators. The ASP
                                        necessary for either normal ship                        during a subsequent rulemaking that                    must be approved pursuant to 33 CFR
                                        operations or access for shore leave.                   implements a reader requirement.                       101.120. We do not agree, however,
                                           Because the recordkeeping                                                                                   with the proposal to allow CSOs the
                                        requirements have been removed from                     5. Requirements for Security Officers                  authority to accept alternative measures
                                        this rule, there are no specific TWIC                   and Personnel                                          to TWIC without first obtaining
                                        logging off requirements. Removal of the                   One commenter said that he would                    approval for such an alternative from
                                        TWIC recordkeeping requirements is                      not have the time to attend any required               the Coast Guard. Provisions for seeking
                                        discussed below.                                        training to become familiar with the                   waivers or equivalents remain
                                           One commenter stated that the rule                   TWIC program.                                          unchanged, and are listed in §§ 104.130
                                        must clarify that the owner/operator                       It is the responsibility of each                    and 104.135, respectively.
                                        cannot be held responsible for events                   individual to ensure that he or she                       One commenter noted that page
                                        rendering employees ineligible for a                    receives all the training necessary to                 29403 of the NPRM refers to the ‘‘access
                                        TWIC of which the owner/operator has                    successfully perform his or her assigned               control administrator of the vessel or
                                        no direct knowledge.                                    duties. However, we will work closely                  facility.’’ The commenter said that it
                                           Section 105.200(b)(14) establishes a                 with industry and other appropriate                    already has a CSO, FSOs, and VSOs. It
                                        responsibility on the part of the owner/                stakeholders to ensure that the                        asked whether the NPRM would require
                                        operator to inform TSA of any                           knowledge requirements can be satisfied                companies to create a new position or
                                        information that he/she becomes aware                   by all affected personnel.                             assign a new set of duties to a company
                                        of in the normal course of its operations                  One commenter stated that changes to                employee.
                                        or simply by chance. Whether the                        §§ 105.205, 105.210, and 105.215 seem                     The term ‘‘access control
                                        information is known ‘‘directly’’ or                    unnecessary because the proposed rule                  administrator’’ was not intended to, nor
                                        ‘‘indirectly,’’ the intent is to ensure that            requires possession of a TWIC for                      does it, create a new position. It was
                                        facts, which would affect an                            unescorted access to a secure area.                    used to describe a position that may or
                                        individual’s eligibility to possess a                      We disagree; the provisions provide                 may not already exist at a vessel or
                                        TWIC, are made available to TSA. The                    clarity and avoid any question as to the               facility. Additional duties to CSO, FSO
                                        section does not impose a responsibility                responsibility of Company Security                     and VSO are expressly set out in the
                                        for an owner/operator to actively seek                  Officers (CSOs) and other security                     Rule, and are not intended to
                                        information on employees or other                       personnel to have and maintain a valid                 overburden any of those positions.
                                        workers; merely to provide it to TSA                    TWIC.                                                     One commenter asked how much
                                        should the owner/operator become                           One commenter asked whether the                     knowledge of and training on the
                                        aware of such information.                              citizenship of a CSO would affect his or               relevant aspects of the TWIC Program
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                                           One commenter asserted that there is                 her ability to receive a TWIC. The                     VSOs and other personnel of foreign-
                                        no discussion in the NPRM regarding                     commenter also asked whether the CSO                   flagged vessels would be required to
                                        how owners/operators should deal with                   and other security personnel of a                      have.
                                        a failure in the TWIC system other than                 foreign-flagged vessel would need to                      Foreign-flagged vessels and their
                                        to state that they must incorporate                     obtain a TWIC.                                         crews are exempt from the TWIC

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                                        3526             Federal Register / Vol. 72, No. 16 / Thursday, January 25, 2007 / Rules and Regulations

                                        provisions, as set forth in 33 CFR part                 facility. Numerous commenters,                         paperwork, suggesting instead that
                                        104. VSOs on U.S.-flagged vessels will                  including the SBA Office of Advocacy                   crewmembers be logged into the system
                                        need to know of those aspects of the                    stated that, in general, the requirement               upon entry to the vessel and logged off
                                        vessel’s TWIC Program that are relevant                 is overly burdensome and would have                    upon final exit from the vessel without
                                        to his/her job. For example, if the VSO                 no resulting security benefit. Several                 registering every entry and exit in-
                                        will be responsible for visually                        commenters requested a clear                           between.
                                        inspecting TWICs, he/she must be                        understanding of what this information                    Two commenters wanted vendor/
                                        familiar with the security features of the              will be used for and justification for the             contractor personnel to be entered into
                                        TWIC, the alternative procedures to be                  creation and maintenance of each of                    the database upon initial boarding and
                                        followed when an individual tries to                    these records. A few commenters stated                 then entered again after his final
                                        enter after reporting a TWIC as lost,                   that this requirement is overly                        departure. The commenters also stated
                                        damaged, or stolen, the procedures to be                burdensome on cruise operators because                 that there is no need to record every trip
                                        followed when a fraudulent (altered)                    of the volume of people coming and                     made to and from delivery vehicles or
                                        TWIC is discovered, and the procedures                  going. One commenter said that this                    shoreside offices/workshops.
                                        to be followed when an individual                       requirement is especially burdensome                      Several commenters complained
                                        without a TWIC tries to enter a secure                  on operators of small passenger vessels                about the lack of personnel to maintain
                                        area without escort.                                    like water taxis but did not state why.                these records. They asserted that
                                           One commenter noted that the NPRM                    Some commenters specifically asked                     facilities will be required to manually
                                        proposed requiring that all individuals                 that the requirement be deleted from the               enter information on visitors who are
                                        with security duties and those who may                  rule. Many commenters stated that two                  exempt from the TWIC requirement.
                                        be examining TWICs at access control                    years is too long to maintain such                     Some commenters felt this was not
                                        points have some familiarity with the                   records. In contrast, one commenter                    practical. Two commenters wanted
                                        security features of the TWIC. The                      supported the two-year timeframe.                      provisions added to the regulation to
                                        company said that TSA or Coast Guard                       Many commenters noted that                          allow modified procedures for large
                                        should provide an online course about                   businesses that maintain security                      work gangs, such as longshore gangs
                                        the security features of the TWIC that                  videotapes typically keep them for only                vetted by the port, to board the vessel
                                        can be completed prior to going to the                  a brief period. These commenters said                  to work cargo without each individual
                                        enrollment center, at a kiosk, or at the                that if no security incident has occurred              longshoreman being screened by the
                                        enrollment center. Successful                           relating to a particular entry to a secure             vessel prior to and at the conclusion of
                                        completion of that course would be                      area, there is no need to keep a record                the workday.
                                        required prior to the TWIC application                  of the person involved. Should the
                                                                                                                                                          Commenters balked at the amount of
                                        being accepted. Another commenter                       Federal government need to ‘‘track’’ the
                                                                                                                                                       records that will need to be kept. Two
                                        suggested that the Federal government                   presence of employees on vessels, it can
                                                                                                                                                       commenters suggested that, to alleviate
                                        should provide more extensive outreach                  obtain and rely on payroll records and
                                                                                                                                                       burden, the records should be
                                        and direction to operators and Security                 other employee files typically kept in
                                                                                                                                                       automated through the TWIC system,
                                        Officers prior to finalizing the rule. The              the course of business rather than
                                                                                                                                                       which could keep track of all persons
                                        purpose of the outreach would be to                     imposing a mammoth new
                                        receive input and to more fully discuss                 recordkeeping requirement?                             granted access to secure areas. This
                                        expectations of those who will be given                    Two commenters said that the                        could be done through an additional
                                        new responsibilities by the rule.                       recordkeeping requirement would                        access card. One commenter
                                           We agree that further guidance on                    further delay the processing of                        complained that the cost of readers is an
                                        how to fulfill the training requirements                individuals in and out of port facilities,             unnecessary expense and does not need
                                        contained in this final rule is necessary.              which would affect the flow of freight                 to be incurred for one-vessel or two-
                                        The use of online courses may be                        through the facilities. Five commenters                vessel operations, but that without the
                                        implemented at a future date. In the                    said that the need to keep and access                  reader, the paperwork requirements
                                        interim, further guidance will be                       records would greatly increase operating               become even more daunting. One
                                        forthcoming through publication of an                   costs.                                                 commenter wanted the rule to specify
                                        NVIC.                                                      One association noted that the                      exactly what information should be
                                           One commenter suggested that the                     requirement would force facilities and                 maintained and suggested: Name, ID
                                        CSO be provided with the option of                      vessels to install both an entrance and                number, and home address.
                                        activating TWICs on behalf of the                       an exit system and said that there have                   As noted above in the discussion of
                                        enrollment centers. We are not                          been technological problems with exit                  changes to the Coast Guard provisions,
                                        considering this option currently,                      systems. It said that exit system                      the recordkeeping requirements related
                                        because it may introduce privacy and                    technology should be tested before a                   to TWIC implementation have been
                                        security issues with the security goals of              requirement to use them is promulgated.                removed from the final rule. We had
                                        the TWIC program. However, as the                          Two commenters said it is not clear                 proposed the requirements because we
                                        program develops, we will continue to                   by whom and where the access records                   believed they could be satisfied by using
                                        consider ways to allow for greater                      would need to be kept for two years.                   the TWIC readers, which were also
                                        flexibility in all levels of the program                One commenter suggested that the                       proposed. Due to our decision to remove
                                        whenever appropriate.                                   recordkeeping requirement would make                   the reader requirements from this final
                                                                                                more sense if it applied only to                       rule, it makes sense to also remove the
                                        6. Recordkeeping/Tracking Persons on                    individuals picking up hazardous                       recordkeeping requirements that were
                                        Vessels/Security Incident Procedures                    materials from their facility. A few                   intrinsically tied to those readers. We
                                           Sections 104.235, 105.225, and                       commenters suggested that the rule be                  will keep these comments in mind as
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                                        106.230 of the NPRM proposed                            amended to allow video recording to                    we consider whether to re-propose new
                                        requiring Security Officers to maintain                 meet the recordkeeping requirement.                    recordkeeping requirements.
                                        records for two years of all individuals                Additional commenters wanted                              Several commenters wrote in
                                        who are granted access to the secure                    crewmembers to be exempted from                        opposition to the requirement that
                                        areas of a vessel, facility, or OCS                     these general provisions to save on                    vessel or facility owners ensure that

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                                                         Federal Register / Vol. 72, No. 16 / Thursday, January 25, 2007 / Rules and Regulations                                          3527

                                        appropriate personnel know who is on                    that this requirement be drafted or                    system has to be shown capable of
                                        the facility at all times.                              explained in a way that could                          processing 700,000 TWICs
                                           One commenter said that the                          ‘‘reasonably’’ be applied to passenger                 instantaneously. Commenters also noted
                                        requirement would place a tremendous                    vessel operations.                                     that the system does not appear to have
                                        strain on many ports and would provide                     Another commenter recommended                       been tested with passenger vessels.
                                        little value if individuals are properly                that owners or operators be required to                   Many commenters stated that cards
                                        screened during the entry process.                      know the whereabouts of contractors                    that had to be inserted into a reader
                                        According to the commenter, even if                     and visitors, but not facility employees.              would not work in the marine
                                        card readers are installed at each entry                The commenter stated that it would be                  environment. These commenters stated
                                        and exit point and all TWIC holders                     extraordinarily difficult to know who is               that TSA had failed to demonstrate the
                                        were to utilize them, provisions would                  present at a large facility with thousands             contact readers would work reliably in
                                        still have to be made to capture data                   of employees, because many people                      the marine environment and had not
                                        from visitors, vessel crew members, and                 ‘‘badge in,’’ but not out. The commenter               accounted for the cost of frequent
                                        passengers in freight trucks. The                       said that the requirement as proposed                  maintenance and replacement or the
                                        commenter noted that current Coast                      could require new equipment at                         costs imposed by failures that delayed
                                        Guard regulations require ports to grant                multiple access points with little                     workers and cargo. One commenter
                                        access to crew members of vessels,                      enhancement of security.                               noted that when it tested readers
                                        including foreign nationals. Because                       Because the use of readers is not                   outdoors the device did not last five
                                        foreign nationals would not be eligible                 required by this final rule, these record              days. Many commenters recommended
                                        to obtain a TWIC, the port authority said               keeping requirements and the                           a contactless reader system as an
                                        it would have to hire additional security               requirement to know who is on a vessel                 alternative. They noted that this type of
                                        guards to escort crew members while                     or facility at all times have also been                card was used in prototype.
                                        they transit port property. The                         removed. Comments and concerns on                      Commenters suggested that readers and
                                        commenter added that the NPRM had                       these issues, however, will be                         cards should have mean time between
                                        not explained or justified the benefits of              considered in any subsequent rule                      failure of 10,000 hours and at least 6
                                        knowing precisely who is on a vessel or                 which imposes a reader requirement.                    months between maintenance.
                                        at a facility at all times or in requiring                 One commenter requested that                           Commenters stated that they needed
                                        individuals to use a TWIC to exit.                      § 104.290(a)(1) and 105.280(f) be                      to know what types of readers would be
                                           Another commenter said the                           modified to conform to § 104.235 and                   required before they could be
                                        requirement would require readers at                    105.225, respectively, by requiring the                reasonably asked to comment on the
                                        both entrance and exit gates and argued                 availability of a list of persons who have             rule.
                                        that exit control is costly and provides                been allowed access to secure areas, not                  Many commenters questioned
                                        little additional protection. The                       to the entire vessel or facility.                      whether cost-effective fingerprint
                                        commenter added that other industries                      Because the proposed record keeping                 readers would work in the marine
                                        have reported technological problems                    requirements have also been removed,                   environment. They noted that the
                                        with exit systems. It noted that exit                   we have also removed the requirement                   readers require clean screens and clean
                                        control is not required in the ‘‘higher                 that these records be made available                   hands; the latter may be difficult in the
                                        risk’’ aviation sector.                                 after a security incident. Comments and                marine and port environment. One
                                           One commenter said that it is not                    concerns on these issues, however, will                commenter stated that one member
                                        critically important to national security               be considered in any subsequent rule                   using a biometric reader had a 300
                                        that facilities know exactly who is on a                which imposes a reader requirement.                    percent annual repair rate, which meant
                                        facility at any given time. It is only                                                                         that multiple backup systems will be
                                                                                                7. Reader Requirements/Biometric
                                        important to know that everyone on the                                                                         needed.
                                                                                                Verification/TWIC Validation                              Commenters stated that failure rates
                                        facility has been cleared to enter.
                                                                                                Procedures                                             of 10 percent would have a serious
                                        Another commenter said that this
                                        requirement would require every facility                   We received a substantial number of                 effect on the ability to move cargo into
                                        to construct a security building at every               comments on technology issues, almost                  and out of ports. One commenter noted
                                        entrance and deploy security guards                     all of which expressed concern about                   that a failure rate of 10 percent would
                                        around the clock. The commenter said                    the feasibility and appropriateness of                 mean that 3,500 individuals a day
                                        that the resulting compliance costs                     the proposed TWIC system.                              would be delayed at LA/Long Beach. If
                                        would be prohibitively expensive but                    Commenters noted that the prototype                    10 percent of trucks were delayed, the
                                        would not improve the security of ports                 did not test many parts of the proposed                delay would ripple through the entire
                                        because facility operators are already                  system including the readers and                       line of trucks waiting and through the
                                        guarding areas determined to be at risk.                communications with a central                          supply chain. They recommended that
                                           Some commenters opposed the                          database. Some questioned whether the                  an error rate must be less than one
                                        application of this requirement to                      central database is available. They                    percent before the system is adopted.
                                        passenger vessels. Two commenters said                  questioned whether the systems will be                 Commenters who had implemented
                                        that because large cruise ships have                    compatible with existing systems; if                   biometric readers indicated that they
                                        hundreds of properly authorized visitors                they are not the cost of replacement will              had failed to perform satisfactorily.
                                        onboard at any given time, it would be                  be high. Commenters stated that TSA                       After reviewing these comments, we
                                        unreasonable to require a single crew                   must test the proposed system before                   have determined that implementing
                                        member to know who is onboard. They                     requiring its use and ensure that it will              reader requirements as envisioned in
                                        suggested that the ship’s visitor and                   work in the marine environment and                     the NPRM would not be prudent at this
                                        crew logs be utilized for this purpose                  that backup systems will function as                   time. As such, we have removed the
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                                        because all cruise ships record the                     well. They stated that if comprehensive                reader requirements from the final rule,
                                        arrival and departure of each person                    testing is not done the result could be                and will be issuing a subsequent NPRM
                                        while in port. A third commenter noted                  higher costs throughout the entire                     to address these requirements, instead
                                        that passenger vessels can carry                        supply chain. In terms of                              requiring that the TWIC be used as a
                                        thousands of passengers and requested                   interconnectivity, they stated that the                visual identity badge at MTSA-regulated

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                                        3528             Federal Register / Vol. 72, No. 16 / Thursday, January 25, 2007 / Rules and Regulations

                                        vessels and facilities. That NPRM will                  vessel personnel, the number of invalid                be possible to employ an agent at each
                                        address many of the comments and                        TWICs would grow quickly.                              port of call to physically deliver
                                        concerns regarding technology that were                    Workers’ eligibility to maintain a                  downloads to a vessel, but this would
                                        raised in the above-summarized                          TWIC is not tied to his or her employer,               significantly increase the cost of the
                                        comments.                                               and employer information is not                        program. Another commenter noted that
                                           Many commenters opposed the                          included on the TWIC itself. Therefore,                not all marine employers have
                                        requirement to install a TWIC reader on                 when a worker changes employment,                      computers, so there must be a way (e.g.,
                                        each vessel. One reason for this                        TSA need not be notified, and neither                  telephone-based system) for those
                                        opposition was that crews on some                       the TWIC itself nor the individual’s                   without computers to check the validity
                                        vessels are small and very familiar with                eligibility to hold and maintain a TWIC                of a TWIC.
                                        one another, making it difficult for an                 will be affected.                                         One commenter noted that there are a
                                        unauthorized individual to go                              Some commenters pointed out the                     number of areas on western rivers that
                                        unrecognized. Other commenters cited                    possibility that truck back-ups could                  are wireless dead zones. The company
                                        the high cost of installing readers on                  occur or be made worse in the likely                   also noted that few existing vessels have
                                        each vessel. Some commenters said that                  event that a truck driver arrives at a                 satellite Internet connection capability
                                        the readers would be difficult to mount                 reader and finds that he or she does not               and any such expectation should be
                                        on small vessels or would break down                    have their TWIC or their TWIC is                       included in the economic analysis. The
                                        in the marine environment. Commenters                   inoperable due to being damaged or                     commenter also added that if TSA and
                                        also said that there is no legislative                  some breakdown of the system. Another                  Coast Guard expect vessels to use
                                        mandate to require TWIC readers on                      commenter expressed a similar concern                  landline connectivity, the cost to stop a
                                        vessels. Some commenters suggested                      about operational delays that could                    vessel periodically (weekly or daily) to
                                        that the TWICs of vessel crew members                   result from lost or damaged cards or                   download the latest information to
                                        could be scanned at the entry point to                  system malfunctions during the typical                 vessel card readers would be significant
                                        a facility prior to boarding a vessel.                  rush of longshoremen arriving for work                 and should be included in the economic
                                                                                                at or near the same time.                              analysis.
                                           One commenter said that alternative                     The removal of the reader
                                        methods should be allowed for using                     requirements from this final rule should                  Two commenters questioned whether
                                        the TWIC to vet personnel for access on                 eliminate the concerns expressed above.                satellite communications would remain
                                        board vessels without the use of readers.               Additionally, we have added specific                   available for civilian use at elevated
                                        One alternative suggested by the                        provisions to accommodate persons                      security levels. One commenter said
                                        company would be to allow all                           who have reported their TWICs as lost,                 that at MARSEC 3, the Federal
                                        personnel to check in at a central                      damaged, or stolen, to provide                         government takes control over
                                        location such as a company office, have                 continued access for a limited time,                   communications satellites, thus making
                                        their biometrics confirmed, and then be                 until they are able to pick up their                   it impossible to download any data from
                                        transported to the vessel via trusted                   replacement TWIC.                                      TSA via satellite.
                                        agent. At the same time as personnel are                   Several commenters said that the                       Several commenters said the
                                        being transported, a confirmed list of                  requirement to check TWICs against an                  proposed frequency for updating the
                                        vetted personnel could be electronically                updated list from TSA would be overly                  TSA information used for TWIC
                                        transmitted to the vessel for                           burdensome, especially if the list of                  screening is excessive. Several
                                        confirmation purposes. Another                          invalid TWICs becomes large. One                       suggested alternative update frequencies
                                        commenter opposed a requirement for a                   company preferred that TSA establish a                 for each MARSEC Level. Two
                                        TWIC reader on vessels carrying fewer                   toll-free number and a website for                     commenters said the proposed update
                                        than 150 passengers. A third commenter                  checking the validity of a TWIC instead                frequencies should be the same as for
                                        said that requiring all terminals,                      of requiring company to maintain a                     validation of HMEs (annually). A
                                        regardless of size and technological                    potentially large database. Another                    company involved in responses to
                                        expertise, to have electronic readers and               commenter said that TSA and Coast                      marine spills said that the requirement
                                        supporting IT systems in place and                      Guard should reduce the frequency of                   to update its list of valid TWICs would
                                        operating properly might further                        TWIC verification at MARSEC Levels 1                   be cumbersome and an extra burden
                                        compromise efficient terminal                           and 2. Alternatively, the commenter                    during responses.
                                        throughput. If the readers and related IT               suggested that a company could                            One commenter suggested that
                                        systems don’t function properly, they                   maintain possession of a person’s TWIC                 information about individuals who are
                                        will exacerbate congestion and delays.                  and verify them as frequently as                       determined to be a security risk should
                                        The commenter said it is therefore                      necessary.                                             be communicated to the local Coast
                                        essential that all technical and process-                  One commenter said that TSA and                     Guard for immediate dissemination to
                                        related issues are thoroughly ironed out                Coast Guard should be responsible to                   FSOs. The company argued that it
                                        before rules are finalized and the                      develop a system with which owners/                    would be ‘‘ridiculous’’ to require a time-
                                        program is implemented.                                 operators can contact TSA to verify the                sensitive industry to employ computers
                                           As stated above, the reader                          validity of TWICs. The association said                to search through millions of names in
                                        requirements have been removed from                     that one possible solution is to establish             a national database to identify a name
                                        this rule; therefore, it is not necessary to            a web portal where facility operators,                 not on the list. The company said that
                                        respond to these comments at this time.                 through a password protected system,                   national security would be better served
                                        Concerns that remain relevant will be                   are able to match a name and picture                   by providing the much shorter list of
                                        considered during the subsequent                        with the TWIC ID number.                               ‘‘non-authorized’’ persons. One
                                        rulemaking.                                                Many commenters said that most                      commenter requested that the rule
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                                           One company said that each TWIC                      vessels do not have Internet access and                clarify that a private regional entity
                                        would include data on an individual’s                   therefore would have trouble regularly                 under contract to a terminal operator
                                        employer, which would mean getting a                    updating their list of valid TWICs by                  would be allowed to maintain the
                                        new TWIC after every job change.                        downloading data from TSA. One                         database of valid TWICs for the
                                        Because of the high turnover rate of                    commenter said it would theoretically                  operator.

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                                                         Federal Register / Vol. 72, No. 16 / Thursday, January 25, 2007 / Rules and Regulations                                             3529

                                           Although a reader is not strictly                    a TWIC with the Coast Guard. The Coast                 they are most needed. One commenter
                                        necessary for checking the validity of a                Guard would be responsible for                         said there is no history of legislative
                                        TWIC, in most cases, we believe that                    notifying the operator if a TWIC it has                intent during the development of MTSA
                                        requiring facilities to manually check                  registered has been invalidated.                       for a requirement that industry
                                        the validity of TWICs without including                    As set forth in the NPRM, owner/                    download latest TSA information
                                        reader requirements is impracticable.                   operators could register its employee                  during increased MARSEC Levels.
                                        Therefore, because the reader                           and others who access its vessel or                       These requirements have been
                                        requirement has been removed from this                  facility using a TWIC with TSA, and                    removed from the final rule and
                                        rulemaking; the requirement that the                    TSA would notify the owner/operator if                 therefore, we defer any response to
                                        credential’s validity be checked against                a TWIC is subsequently invalidated.                    these comments. We will keep these
                                        the TSA list of revoked credentials also                TSA describes the process as ‘‘privilege               comments in mind as we draft our
                                        has been removed. The Coast Guard,                      granting.’’ This process will still be                 NPRM re-proposing reader and TWIC
                                        when conducting spot checks, will                       available, even though we are not                      validation requirements.
                                        verify a TWIC’s validity while                          requiring owners/operators to routinely                   One commenter maintained that
                                        confirming the identity of the TWIC                     validate TWICs in this final rule.                     weekly/daily verification for maritime
                                        holder. We will continue to consider                       One commenter questioned whether                    workers was unjustified based on the
                                        ways to provide flexibility to owners/                  the Federal government would be able                   fact that hazardous materials truck
                                        operators in satisfying this requirement                to update the list of invalid TWICs on                 drivers, who pose a greater security
                                        in subsequent rulemakings.                              a daily basis at elevated MARSEC                       threat (due to operation by a single
                                           One company asserted that TSA and                    Levels. Another commenter conjectured                  individual and close proximity to
                                        Coast Guard had not provided any                        that if there is a terrorist incident that             population centers and potential
                                        information to the regulated community                  leads to elevated security measures,                   terrorist targets), are checked annually.
                                        regarding the size or format of the data                Internet and other communications                         We believe that this commenter
                                        files likely to be associated with the list             systems would likely be taxed to the                   misunderstood what the NPRM meant
                                        of invalid TWICs. Without this                          point of failure. This would make                      by the weekly/daily verification, but
                                        information, the company said it could                  frequent updates of the TWIC database                  note that the final rule does not include
                                        not provide detailed comments                           difficult if not impossible.                           this verification procedure, and
                                        regarding the cost or difficulty in                        While it is impossible to predict with              therefore we need not respond to it
                                        providing this information to its vessels               certainty how essential infrastructure                 further at this time.
                                        or whether it is even possible with the                 will be impacted by a terrorist incident,                 Some commenters stated that their
                                        systems currently in place.                             we believe that the layered security                   facilities are not transportation facilities,
                                           We agree that this type of information               approach imposed by the MTSA                           and as such the cards will be used only
                                        is necessary for industry to effectively                provides the best approach to ensuring                 to clear employees into the facility.
                                        implement these requirements, and will                  the greatest protection to our maritime                They stated that their existing systems
                                        keep this comment in mind as we draft                   facilities. However, because the reader                are sufficient and that shifting to the
                                        our NPRM re-proposing reader and                        requirement has been removed from this                 proposed TWIC would double the time
                                        TWIC validation requirements.                           rulemaking, so has the requirement that                required to process each employee,
                                           One commenter said that U.S. vessels                 owners and operators check the                         which could cause operational delays
                                        face connectivity issues when transiting                credential’s validity against the TSA                  during shift changes. The TWIC system
                                        foreign ports and would therefore not be                hotlist. We will keep these comments in                should be designed to be easily
                                        able to comply with the proposed                        mind as we draft our NPRM re-                          integrated into legacy systems or TSA
                                        requirement.                                            proposing reader and TWIC validation                   should allow facilities to use their
                                           We will keep this comment in mind                    requirements.                                          existing systems after an employee
                                        as we draft our NPRM re-proposing                          Several commenters said that the                    obtains a TWIC.
                                        reader and TWIC validation                              required scrutiny of TWICs should not                     The NPRM was drafted to allow
                                        requirements.                                           change with the MARSEC Level.                          owners/operators to continue to use
                                           Another commenter suggested that                     Commenters said that the card is                       their existing access control systems so
                                        facial recognition should be allowed at                 designed to be secure and linked to the                long as they were able to integrate the
                                        MARSEC Level 1 instead of biometric                     cardholder by biometric verification, so               TWIC into those systems. The
                                        verification. Another commenter asked                   the security benefits of additional                    elimination of the reader, biometric
                                        what facilities would be required to do                 scrutiny would not be worth the effort.                validation, and card verification pieces
                                        if there are delays in updating its                     One association opposed the                            from this final rule does not change this.
                                        database. The commenter said that this                  requirement that vessels download daily                In order to integrate the two systems,
                                        is a critical point, because many other                 updates on the status of TWICs at                      owners/operators will need to ensure
                                        high-priority actions would be taking                   MARSEC Levels 2 and 3. The                             that their own access control systems
                                        place at MARSEC Levels 2 and 3.                         association said that the proposed rule’s              are updated to show whether the
                                           These requirements have been                         discussion of MARSEC Levels was not                    employee has a TWIC even when he/she
                                        removed from this rule and therefore,                   based on reasonable risk analysis. One                 presents only the facility-specific badge.
                                        concerns related to the use of the                      commenter said that the requirement for                In other words, an individual must still
                                        credential at different MARSEC levels                   use of a PIN and daily check of TWICs                  have a TWIC before he/she can be
                                        will be revisited in a subsequent                       at MARSEC Levels 2 and 3 would                         granted unescorted access to a secure
                                        rulemaking.                                             provide only a marginal increase in                    area, even if the badge being used to
                                           A commenter said that rather than                    security that is not worth the time,                   gain entry on a day-to-day basis is not
                                        placing the burden on employers to                      effort, and potential problems these                   the TWIC.
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                                        repeatedly check the validity of each                   measures would create. Another                            The Navy stated that Department of
                                        worker’s TWIC, the vessel or facility                   commenter opposed the proposed                         Defense Common Access Cards (DOD
                                        operator should have the option of                      requirement that all TWIC-enabled gates                CACs) should fulfill the TWIC
                                        registering its employees and others                    be manned at MARSEC Level 2, saying                    requirements. As long as the DOD CAC
                                        who access its vessels or facilities using              it would divert security resources when                is the official credential for the Navy, it

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                                        3530             Federal Register / Vol. 72, No. 16 / Thursday, January 25, 2007 / Rules and Regulations

                                        will meet the identification requirement                to work immediately.’’ Commenters                      allow new hires to have access to secure
                                        in § 101.514(b) when required for                       added that vessels and facilities would                areas for up to 30 consecutive days,
                                        official duties authorized by the Navy.                 have to add security personnel to escort               provided the security threat assessment
                                        If it is replaced with another credential               new hires and that TSA should develop                  process has begun, the new employee
                                        in order to gain compliance with HSPD–                  some mechanism, such as temporary                      passes an initial TSA security review,
                                        12, however, that new credential will                   access, to address the period before the               and the individual remains
                                        need to be used by Naval personnel                      new hires or existing employees receive                accompanied while in the secure area.
                                        seeking to gain unescorted access to a                  their TWIC cards.                                      In addition, if TSA does not act upon a
                                        MTSA-regulated vessel or facility.                         One commenter had a suggestion for                  TWIC application within 30 days, the
                                                                                                temporary access for visitors requiring                cognizant Coast Guard COTP may
                                        8. Access Control Issues                                unescorted movement for special cargo                  further extend a new hire’s access to
                                        (a). New Hires/Persons Needing Access                   deliveries from a transportation mode                  secure areas for another 30 days.
                                        Before TWIC Is Granted                                  not usually found in the maritime sector               Additional guidance on this provision
                                                                                                (e.g., oversized loads of equipment                    will be forthcoming in a NVIC.
                                           Many commenters remarked that
                                                                                                being shipped outside of the United
                                        seasonal workers are employed for 90                                                                           (b). Persons With Lost/Stolen/Damaged
                                                                                                States). A temporary TWIC should be
                                        days or less, and those commenters                                                                             TWICs
                                                                                                established which can be granted by the
                                        believed that the rule would severely                                                                             Several commenters expressed
                                                                                                facility after verifying two forms of
                                        impede seasonal hiring if the workers                                                                          concern that key personnel will lose
                                                                                                identification and a check of databases.
                                        had to wait 60 days for a TWIC. Some                                                                           their TWIC and not be able to enter a
                                                                                                Various private companies already offer
                                        commenters pointed out that seasonal                                                                           marine terminal or a vessel until they
                                                                                                this service and DOD uses it for
                                        businesses often must find new or                       contractors and vendors to enter U.S.                  receive a new one. Several questioned
                                        replacement staff quickly. An                           Army facilities.                                       TSA’s estimation that replacement cards
                                        association noted that seasonal workers                    Many commenters encouraged TSA                      could be printed and shipped within 24
                                        are generally students, who may not                     and Coast Guard approval of a                          hours. One noted anecdotal evidence
                                        know where they are going to work 60                    probationary period during which a new                 from participants in the Delaware River
                                        days before classes end. Another                        hire could begin work or training while                pilot that nearly two weeks elapsed
                                        association described how a business                    the TWIC application is pending. Such                  before a replacement card was ready for
                                        might not have enough TWIC holders at                   a period could begin after the vessel,                 activation. Another noted that the 24-
                                        the beginning of the season to escort the               facility, or port has conducted its own                hour estimation provided in the NPRM
                                        rest of the workforce.                                  background checks. Other commenters                    did not account for shipping time or the
                                           We believe that the inclusion of the                 also favored a simplified or expedited                 time required for an applicant to get to
                                        ‘‘employee access area,’’ discussed                     background check (similar to those for                 a TWIC enrollment center and that 3–4
                                        above, should operate to exclude the                    firearms purchases) and interim, site-                 days may be required for the entire
                                        vast majority of seasonal employees                     specific authorization for access. Some                replacement process. Many commenters
                                        from even needing a TWIC.                               commenters specifically mentioned a                    indicated that it was important to
                                           Some commenters mentioned similar                    temporary credential, similar to a                     ensure that individuals continue to
                                        problems with short-term workers and                    temporary security clearance, or a pass                access appropriate facilities while they
                                        casual labor hired with little advance                  authorized by the vessel or FSO. One                   await replacement cards or when they
                                        notice, and those commenters described                  commenter generally favored a shorter                  simply forget to bring their TWIC with
                                        instances where workers are needed                      duration card.                                         them to work. Failing such access,
                                        immediately. For example, in some                          A few commenters had suggestions                    operators will face burdensome work
                                        businesses, deckhands come and go at a                  about a different security system for                  interruptions and employees might seek
                                        greater frequency than 30 days. One                     short-term workers. One of them                        a different job or request unemployment
                                        commenter remarked that it is not                       emphasized that casual laborers in the                 compensation.
                                        uncommon for a new hire to get                          maritime industry may work for only                       Commenters offered several
                                        onboard only to find out that they are                  one day, but casual laborers often                     suggestions regarding measures to
                                        not suited for work on vessels, leaving                 outnumber permanent employees, so                      mitigate delays that could result from
                                        them scrambling to fill a position when                 the requirement for escorts is                         lost, malfunctioning, or forgotten
                                        a crewmember leaves. A State port                       impractical. One commenter added that                  TWICs: (1) Temporary cards issued
                                        authority noted that in addition to new                 the process required by the regulations                while an applicant awaits a replacement
                                        hires, other individuals might need                     must be flexible enough to allow small                 card; (2) some type of receipt indicating
                                        occasional unescorted access without                    operators to respond to time sensitive                 that the replacement card had been
                                        having to wait for a TWIC card.                         demands for service, and cost-effective                ordered; (3) providing a mechanism for
                                           Several commenters objected to the                   enough to allow these same small                       a vessel/facility operator to capture the
                                        fact that new hires would not be able to                entities to continue to remain in                      biometric from the card or from the TSA
                                        work until they obtained a TWIC card.                   business. Another commenter wanted to                  database for storage in the local database
                                        Many other commenters agreed that the                   continue with its current photo ID                     and validate an individual’s identity by
                                        requirement would hurt the ability of                   system. A third commenter favored                      matching his fingerprint with the
                                        companies to hire new workers and                       having annual renewal of the TWIC.                     biometric stored in the local database in
                                        mentioned the high turnover rate in the                    After reviewing these comments, we                  the event the individual leaves his card
                                        industry, especially among entry-level                  recognized the need to provide owners/                 home on a given day; or (4) alternative
                                        positions. As one commenter described                   operators with the ability to put new                  identification verification provisions
                                        the situation, ‘‘When a worker needs a                  hires to work immediately if an urgent                 (e.g., visual identification, confirmation
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                                        job, he or she needs a job now, not 30–                 staffing requirement exists, once new                  call to vendor’s employer) included in
                                        60 days from now. If we cannot readily                  hires have applied for their TWIC. We                  vessel security plans for situations
                                        put people to work, there are any                       have included, above, a detailed                       where mariners and shoreside personnel
                                        number of non-maritime employers who                    discussion of the new provisions that                  seeking unescorted access to the vessel
                                        will be happy to hire them and put them                 have been added to this final rule to                  have lost or forgotten their TWIC.

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                                                         Federal Register / Vol. 72, No. 16 / Thursday, January 25, 2007 / Rules and Regulations                                           3531

                                           As noted above in the discussion to                  alternative means of identification. This              resources that would be required to
                                        the changes to the Coast Guard                          commenter said that use of a PIN would                 escort ‘‘one-time-only’’ drivers. A fourth
                                        provisions of this rule, we have added                  compromise the security of the                         commenter recommended that the type
                                        specific procedures for owners/                         credential. Two commenters said that if                of escorting or monitoring required at
                                        operators to use to allow individuals to                PINs are required, there must be a way                 Certain Dangerous Cargo (CDC)
                                        continue to gain unescorted access to                   to check or reset a forgotten PIN within               Facilities be based on a vulnerability
                                        secure areas for seven (7) consecutive                  a very short period of time. Other                     assessment instead of dictated by
                                        days in the case of lost, damaged, or                   commenters said that the use of a PIN                  standard, noting that additional
                                        stolen TWICs. This procedure should                     would lead to long delays in access to                 information on risk could be
                                        alleviate the concerns over work slow                   port facilities and could disrupt the flow             incorporated from the Maritime Security
                                        downs or stoppages that were expressed                  of commerce. Two of these commenters                   Risk Assessment Model (MSRAM) or
                                        by the commenters above.                                requested that the access system not                   other assessment tools.
                                           One commenter noted a related issue                  lock out an individual after several                     As explained elsewhere in this final
                                        that mariners whose TWIC is lost,                       unsuccessful attempts to enter his or her              rule, the term ‘‘escorting’’ has been
                                        stolen, or inoperable may have to be                    PIN, citing the potential resulting                    broadly defined to allow flexibility to
                                        replaced on very short notice and that                  disruptions to the flow of commerce.                   owner/operators, based on their
                                        finding replacement workers could                       One commenter said that a PIN entry                    individual operations, in satisfying the
                                        result in operational delays and other                  pad will require additional maintenance                requirement. Further guidance as to
                                        problems.                                               (due to exposure to the elements) or                   how individual owner/operators can
                                           It is likely that the provisions added               additional infrastructure to make it                   satisfy this requirement will be
                                        into the final rule, to allow for                       immune to the elements (i.e., enclosed                 provided in a NVIC. We expect
                                        individuals with lost, damaged, or                      boxes, protective barriers to prevent                  guidance will describe that when in an
                                        stolen TWICs to continue to work for up                 vehicles from contacting the box, etc.).               area defined as a restricted area in a
                                        to seven (7) days, will alleviate this                     Because the reader requirement has                  vessel or facility security plan, escorting
                                        problem.                                                been removed from this rule, the PIN                   will mean a live, side-by-side escort.
                                        (c). Use of PIN                                         requirement will not be an issue for                   However, outside of restricted areas,
                                                                                                routine access controls. We note,                      such side-by-side escorting is not
                                           Several commenters objected to the                   however, that the Coast Guard will be                  necessary, so long as the method of
                                        requirement for TWICs to have an                        conducting spot checks for TWICs,                      surveillance or monitoring is sufficient
                                        accompanying PIN number. Many of                        using hand-held readers, and that if an                to allow for a quick response should an
                                        these commenters said the other                         individual is stopped during one of                    individual ‘‘under escort’’ be found in
                                        security protections in the card would                  these spot checks, he or she will need                 an area where he or she has not been
                                        obviate the need for a PIN. In general,                 to know the PIN in order to unlock the                 authorized to go or is engaging in
                                        comments on this issue reflected two                    biometric stored on the card and allow                 activities other than those for which
                                        different interpretations of the proposed               for biometric verification. We are                     escorted access was granted.
                                        rule’s requirement regarding PIN                        sensitive to those commenters who                        Two commenters noted that many
                                        numbers. Some commenters assumed                        noted that, without daily use of the PIN,              technicians who work on shipboard
                                        that the PINs would only be required at                 individuals will be likely to forget,                  equipment are not U.S. citizens. They
                                        elevated security levels, while others                  however, as noted by some of the                       typically work in areas of the ship that
                                        assumed that TWIC holders would have                    commenters above, having a card that is                would not be considered public access
                                        to enter the PIN each time to unlock the                compliant with the current technology                  areas and often work at night or when
                                        biometric features of the card. One                     standard and provides the appropriate                  the regular crew is off-duty. The
                                        commenter opined on the treatment of                    level of security and privacy requires                 commenters maintained that vessel
                                        PIN numbers in the FIPS–201–1                           the use of a PIN.                                      crews do not have the extra personnel
                                        standard. According to the commenter,                                                                          to escort these technicians. One of these
                                        FIPS–201–1 states that the PIN must be                  (d). Requirement That All Non-TWIC                     commenters requested that the final rule
                                        validated before the two fingerprints                   Holders Be Escorted                                    contain a provision for a foreign citizen
                                        stored on the card can be accessible. In                   One commenter expressed concern                     to have access to vessels if they are
                                        addition, section 6.2.3 of FIPS–201–1                   about the impact of the escort                         approved by the ship’s Master or Chief
                                        outlines the authentication steps, which                requirement on visitors who do business                Engineer and recognized as a trusted
                                        indicate PIN validation occurs before                   at ports. The commenter noted that                     worker.
                                        biometric reading/validation. If this is                many port facilities may have normal                     We acknowledge that technicians who
                                        correct, then the PIN will always be                    deliveries (e.g., mail, overnight delivery             are non-U.S. citizens or immigrants are
                                        used since the NPRM proposes                            services) or businessmen and women                     an integral part of the maritime
                                        biometric validation when entering the                  visiting the port, and that ports should               industry. Lawful nonimmigrants with
                                        secure area of a vessel or facility.                    be given flexibility on how to handle                  unrestricted authorization to work in
                                        Another commenter echoed these                          these visitors. The organization                       the United States may apply for a TWIC.
                                        comments on the FIPS–201–1 standard                     suggested reviewing how the State of                   In addition, we are amending the
                                        and added that the requirement for use                  Florida handles visitors if it decides not             immigration standards to permit foreign
                                        of a PIN regardless of threat level is                  to grant additional flexibility to facilities          nationals who are students of a State
                                        inconsistent with ‘‘the MTSA                            in the final rule, and said that the final             Maritime Academy or the U.S. Merchant
                                        philosophy.’’                                           rule should consider different escort                  Marine Academy to apply for a TWIC.
                                           Several commenters opposed the use                   requirements at different MARSEC                       Also, we are permitting certain aliens in
                                        of a PIN only at MARSEC Level 3. They                   levels.                                                the United States on a restricted work
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                                        said that because Level 3 occurs so                        Another commenter said that the                     visa to apply for a TWIC. Applicants
                                        infrequently, TWIC holders would                        escort provisions would be especially                  sponsored by a U.S. company
                                        probably forget their PINs. One                         troublesome for small ports because of                 authorized to work on a temporary basis
                                        commenter requested the use of facial                   their limited security personnel. A third              in the United States under an H visa,
                                        comparison instead of a PIN for an                      commenter expressed concern about the                  individuals employed in the United

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                                        3532             Federal Register / Vol. 72, No. 16 / Thursday, January 25, 2007 / Rules and Regulations

                                        States on an intra-company transfer                     humanitarian workers are encouraged to                 restricted areas. As noted above in the
                                        under an L visa, NAFTA professionals                    obtain TWICs and to work with owner/                   discussion of the definition for secure
                                        in the United States under a TN visa,                   operators in preserving continued                      area, we considered requiring TWICs
                                        nationals of a country that maintains a                 unescorted access to vessels and                       only in these areas, but determined that
                                        treaty of commerce and navigation with                  seafarers.                                             doing so might actually be more harmful
                                        the United States and is engaging in                                                                           to owners/operators. The NPRM
                                                                                                (e). Vessel-Specific Issues
                                        substantial trade under an E–1 visa, is                                                                        included reader requirements, including
                                        in or is coming to the United States to                    Coast Guard proposed adding                         the use of the TWIC and readers for
                                        engage in duties of an executive or                     § 104.106 to provide for passenger                     biometric verification. Using the
                                        supervisory character under an E–2 visa,                access areas on board passenger vessels,               restricted area as the secure area would
                                        applicants with extraordinary skill in                  ferries, and cruise ships, which would                 have required that these readers and the
                                        science, business, or art entering the                  allow vessel owners/operators to carve                 verification be used at the entry points
                                        country on an O visa, and Australians                   out areas within the secure areas aboard               of each restricted area. This would have
                                        in a specialty occupation under an E–3                  their vessels where passengers are free                likely meant that many vessel owners/
                                        visa are now authorized to apply for a                  to move about unescorted. Many                         operators would have needed more than
                                        TWIC. The companies that hire these                     commenters supported this provision                    one reader, increasing their compliance
                                        individuals are required to notify TSA                  and stated that these concepts are                     costs. Additionally, the process of
                                        when the workers are no longer                          absolutely essential to a workable rule.               biometric identification could have
                                        employed at their U.S. operations,                      The commenters argued that without                     interfered with the operation of the
                                        recover the TWIC, and return it to TSA.                 this provision, the passenger vessel                   vessel. As a result, we decided to define
                                        In addition, the rule requires the                      industry, which depends on attracting                  the secure area as the access control
                                        workers to surrender the TWIC to the                    the public as customers, would not be                  area, thus limiting the number of
                                        employer when leaving that place of                     able to function. Several of the same                  readers required, as well as the number
                                        employment in the United States. We                     commenters stated that the clarification               of times biometric verification would
                                        are requiring the surrender and retrieval               that a vessel employee whose duties                    need to take place.
                                        of the TWIC to prevent instances in                     require unescorted access to a passenger                  This final rule does not include the
                                        which a worker would hold a 5 year                      access area, but not to secure areas of                reader and biometric verification
                                        TWIC, but be authorized to work in the                  the vessel, would not need a TWIC                      requirements, but we do expect to issue
                                        United States for a much shorter period                 needs to be explicitly stated in the                   a second rulemaking in the future that
                                        of time.                                                language of the final rule.                            will re-propose these requirements
                                           One commenter said that the escort                      Some commenters wanted                              (although they may have some
                                        requirement, when combined with other                   clarification of the different types of                differences from what was included in
                                        requirements in the proposed rule,                      areas on a vessel. One commenter was                   the NPRM of May 22, 2006). Because we
                                        could have the side effect of completely                unable to determine whether all areas                  expect to require readers and biometric
                                        dismantling what remains of the U.S.                    not designated passenger access areas                  verification in the future, we do not
                                        Merchant Marine. The commenter said                     are to be considered ‘‘secure areas.’’ The             think it is a good idea to confuse the
                                        that companies will only flag their ships               commenter noted that, using the                        maritime industry by adopting a
                                        in the United States as long as there is                definition of passenger access area as                 definition of secure area in this final
                                        an economic incentive for them to do                    found in proposed § 104.106, a                         rule that would not be workable when
                                        so. The commenter maintained that the                   passenger area would not necessarily be                reader requirements go into effect. As
                                        cost of providing TWIC-carrying escorts                 within the access control area or ‘‘secure             such, we did not revise the definition of
                                        for all foreign citizens, purchasing the                area’’ of a vessel or facility, which seems            secure area to coincide with the
                                        necessary equipment, and paying for                     to be a contradiction as it is written in              restricted areas.
                                        more training could motivate companies                  the proposed rule.                                        One commenter requested
                                        to flag their ships under another                          As defined in § 104.106, passenger                  clarification that for foreign-flagged
                                        country’s flag.                                         access areas are located within the                    cruise ships, the Flag State-approved
                                           We share concerns about                              access control areas of the vessel (and                and ISPS Code compliant Ship Security
                                        unintentional negative impacts TWIC                     are thus within the ‘‘secure area’’), but              Plan (SSP) is where passenger access
                                        implementation could have on the                        by definition they are not part of the                 issues would be discussed. The
                                        maritime industry. Where the governing                  secure area. They can be thought of as                 commenter wanted confirmation that no
                                        statutory provisions provide the                        pockets within the secure area—all                     additional plan, such as the TWIC
                                        Department with discretion, we                          areas around the passenger access areas                Addendum described in proposed
                                        continue to weigh the security benefits                 are secure and require TWICs for                       § 104.115, or revision to existing plans
                                        of implementing TWIC against the                        unescorted access, but the passenger                   is necessary for foreign flag cruise ships
                                        burden it imposes upon industry. We                     access area does not. As such, any                     under either of these regulations.
                                        believe that the provisions set forth in                employees whose duties keep them                          For reasons discussed above,
                                        this final rule reflect a reasonable                    entirely within the passenger access                   § 104.105 exempts all foreign-flagged
                                        implementation that will not overly                     area do not need a TWIC, the same way                  vessels, including foreign cruise vessels,
                                        burden industry and we will continue to                 that passengers would not.                             from TWIC requirements.
                                        evaluate the impact on industry as we                      Some commenters also noted that                        Another commenter noted that the
                                        proceed with future rulemakings.                        certain vessel spaces are absolutely                   creation of § 101.514 does not address
                                           One commenter expressed concern                      essential to security (i.e., the bridge and            the existence of a ‘‘passenger access
                                        about how maritime ministry activities                  the engine room), adding that the                      area’’ as an exception, and the language
                                        would be affected by the                                current MTSA regulations use a                         of § 104.100 needs to be referenced here
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                                        implementation of the rule.                             definition of ‘‘restricted area’’ that                 with other exceptions to having a TWIC.
                                           The Coast Guard supports the                         implies that only certain portions of a                Therefore, the commenter suggested that
                                        activities of those organizations                       vessel will be so designated.                          a new subparagraph should be added to
                                        providing services to seafarers of all                     We agree that only certain portions of              read: ‘‘No passenger, employee, or other
                                        nationalities. Chaplains and other                      the vessel need be designated as                       individual needs to possess a TWIC to

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                                                         Federal Register / Vol. 72, No. 16 / Thursday, January 25, 2007 / Rules and Regulations                                          3533

                                        obtain unescorted access to a passenger                 unauthorized objects have been left                    security measures to prevent an
                                        access area as defined in § 101.106 or a                aboard.                                                unescorted individual from entering an
                                        public access area as defined in                           Referring to proposed § 104.265(c)(4),              area of the facility that is designated a
                                        § 105.106.’’                                            one commenter stated that this                         secure area unless the individual holds
                                           We do not agree with the suggested                   requirement implies that a MODU                        a duly issued TWIC and is authorized to
                                        change. Because the definition of                       vessel with several restricted (secured)               be in the area.
                                        passenger access area clearly states that               areas, would be required to have a card                   The same law firm requested a
                                        these areas are not secure areas, it is                 reader at the entrance to each of these                clarification of § 105.255(d), asking
                                        clear that TWIC requirements do not                     areas. The commenter argued that the                   ‘‘what is the meaning of the phrase
                                        apply within the passenger access area.                 vessel should only be required to have                 ‘complies and is coordinated with TWIC
                                           One commenter stated that contractor                 a card reader at the point(s) of                       provisions.’’’
                                        personnel working for oil and gas                       embarkation to the vessel. Additionally,                  This provision allows the facility
                                        operators on vessels would be required                  the commenter stated that the vessel                   owner or operator to use a separate
                                        to carry a TWIC or be escorted on the                   would incur undue burden to ensure                     identification system, but it must be in
                                        vessel. The commenter concluded that,                   that a person trained in the TWIC to be                addition to the TWIC. Requiring
                                        with up to 36 oil field workers on a                    assigned/posted at the entrance to each                coordination means that the separate ID
                                        vessel, this would put a strain on the                  secure area and verify the TWIC for                    system cannot be used if it would allow
                                        crew to escort the individuals without a                these people.                                          someone without a TWIC to get
                                        TWIC.                                                      This comment displays a confusion                   unescorted access to secure areas.
                                           This is technically correct, however                 regarding the meaning of secure area. It                  We received one comment on the
                                        we hope that the clarification of what                  is not to be read as meaning the same                  requirement proposed in § 105.255(c) (3)
                                        was meant by ‘‘escorting’’ will alleviate               as restricted area, but rather to coincide             for facility operators to ensure that the
                                        these concerns and any additional strain                with the access control area of the vessel             facility operator’s TWIC program ‘‘uses
                                        on vessel crews. In our clarification, we               or facility. In the case of a MODU, this               disciplinary measures to prevent fraud
                                        expect that when in an area defined as                  would be the entirety of the vessel.                   and abuse.’’ The commenter stated that
                                        a restricted area in a vessel security                  Additionally, the MTSA regulations                     this would not be the correct assignment
                                        plan, escorting will mean a live, side-by-              allow for the checking of identification               of responsibility, because the relevant
                                        side escort. However, outside of                        at the point of embarkation to the                     evidence is only in the possession of
                                        restricted areas, such side-by-side                     MODU, and the TWIC provisions do not                   government. The commenter also stated
                                        escorting is not necessary, so long as the              change this.                                           that the TWIC is a federally-issued
                                        method of surveillance or monitoring is                    One commenter supported proposed                    credential obtained by an individual
                                        sufficient to allow for a quick response                § 104.265(c)(8), which permits                         without the involvement of a facility
                                        should an individual ‘‘under escort’’ be                coordination, where practicable, with                  operator or employer. If a TWIC is
                                        found in an area where he or she has not                identification and TWIC systems in                     fraudulently obtained and used or
                                        been authorized to go or is engaging in                 place at facilities used by vessels. The               abused in some manner, that would be
                                        activities other than those for which                   commenter recommended further                          a serious matter to be addressed by
                                        escorted access was granted.                            broadening these provisions to clarify                 Federal law enforcement and not a
                                           One commenter noted that the                         that when a vessel is berthed at a facility            subject for employer-imposed
                                        proposed rule does not address how to                   which is required under part 105 of                    discipline. The commenter contended
                                        handle access control and identification                these regulations to have a TWIC system                that the employer would not have the
                                        on vessels under repair in shipyards or                 in place, the vessel may suspend its                   necessary evidence to impose discipline
                                        in drydock. The commenter suggested                     TWIC operations while berthed at that                  under the regulations.
                                        that the rules should specifically                      facility. The commenter argued that                       The existing regulations already
                                        address this issue and state that the                   there is simply no need to require                     required owners and operators to have
                                        owner of a vessel that is withdrawn                     duplicate TWIC validation especially                   disciplinary systems in place to enhance
                                        from navigation, whether permanently                    when considering that facilities and                   the legitimacy of their identification
                                        or temporarily, is not required to                      vessels already have other non-TWIC                    system, whether it was a facility issued
                                        implement or maintain access control                    security and access procedures in place.               badge or a State-issued identification
                                        and identification requirements while                      We do not agree with this comment;                  credential. There is a difference as to
                                        the vessel is not in navigation.                        the vessel owner/operator must                         what the disciplinary system would be
                                           The MTSA regulations already state                   maintain the ultimate responsibility for               in each case, but we do not think it is
                                        that vessels that are laid up or out of                 the security of his or her vessel.                     inappropriate to place this
                                        service are not subject to part 104. This               Amending the regulations as the                        responsibility on the owner/operator.
                                        applies to vessels no longer anticipating               commenter suggests would shift that                    For example, the facility owner or
                                        MTSA operations. For vessels that are                   ultimate responsibility to the facility                operator could fire and possibly take
                                        undergoing repairs of a temporary                       owner/operator without requiring a                     legal action against someone for
                                        nature, they must be in compliance with                 contractual relationship with the vessel,              tampering with the company’s badging
                                        their approved VSP including access                     which is inappropriate.                                system, but if they found someone
                                        control measures. However, the                                                                                 presenting a suspected fake ID, an
                                        approved VSP may contain security                       (f). Facility-Specific Issues                          appropriate disciplinary measure could
                                        measures for intermittent operations,                      A law firm representing six                         be to deny access, and could even go as
                                        such as drydocking and shipyard repair                  companies suggested the following                      high as firing the individual. Similar
                                        work. These intermittent security                       technical change to § 105.255(a)(4):                   disciplinary measures can be put in
                                        measures may include relaxing access                    ‘‘change the word ‘‘Prevent’’ to ‘‘Deter’’             place in regards to TWIC.
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                                        control measures during repair periods,                 to be consistent with the rest of the                     One commenter noted that
                                        but will include specific measures to                   maritime security regulations.’’                       § 105.255(f)(4) implies that vessel crew
                                        reestablish access control and                             We disagree with this                               and others seeking access to a vessel via
                                        monitoring of the vessel and conducting                 recommendation. Owners/operators                       a facility, who do not have a TWIC, fall
                                        a sweep of the entire vessel to ensure no               must ensure the implementation of                      under the definition of ‘‘any person’’

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                                        3534             Federal Register / Vol. 72, No. 16 / Thursday, January 25, 2007 / Rules and Regulations

                                        when visiting a facility. The current                   worded, this subparagraph contradicts                  require unescorted access to a secure
                                        version of this section, § 105.255 (e)(3),              33 CFR 101.105, 33 CFR 105.225(b)(9)                   area.
                                        reads ‘‘vessel passengers and crew,’’                   and 33 CFR 105.255(a)(4), subparagraph                    One commenter said that a universal
                                        while the above-proposed wording                        (c)(1), and could be misinterpreted as                 identification credential such as TWIC,
                                        eliminates the word ‘‘crew’’ from the                   requiring that a facility’s access control             should allow mariners unescorted
                                        section.                                                program cover a much more extensive                    access to the terminal when there is a
                                           The phrase ‘‘vessel personnel and                    area than is the intent of the proposed                valid need for such access, i.e., to reach
                                        crew’’ was removed and replaced with                    regulations.                                           the job site aboard a ship berthed within
                                        ‘‘any person’’ to clarify that the world of                This final rule will no longer be                   the port facility. Indeed, the mandatory
                                        persons without a TWIC who might                        adding language to this paragraph,                     provisions of the ISPS Code (ISPS
                                        need access through a facility to a vessel              therefore the suggested change is no                   Code—Part A Requirement 16 Port
                                        is bigger than just vessel personnel and                longer necessary.                                      Facility Security Plan) require such
                                        crew. If, however, the vessel personnel                    One commenter noted that at small                   facilitation of access by mariners. The
                                        and crew do have a TWIC, they would                     ports, it is the terminal operator’s                   commenter stated that owner/operators,
                                        no longer fall into this category of ‘‘any              responsibility to ensure compliance                    in complying with the proposed rule
                                        persons,’’ but rather into the separate                 with the security plan and that many                   and with approved security plans,
                                        category of persons with TWICs.                         small ports face a tremendous difficulty               should be sufficiently reassured (for
                                           Some commenters argued that the                      in doing the ‘‘people’’ side of security.              liability purposes) to allow unescorted
                                        proposed regulations are unclear about                  Another commenter stated that port                     access to the TWIC holders with a
                                        whether the currently accepted forms of                 facilities should be given more                        legitimate need for admittance, and that
                                        seafarer identification are considered                  flexibility regarding escorting of visitors.           the proposed rule should make clear
                                        ‘‘government identification.’’ One                         We appreciate the concerns raised by                that owners/operators of secure areas
                                        commenter noted that the Coast Guard’s                  the commenters, and have provided                      who follow their approved security plan
                                        section-by-section analysis to § 105.255                                                                       and who adhere to the TWIC access
                                                                                                clarification elsewhere in this final rule
                                        reads that persons presenting for entry                                                                        control procedures will not be deemed
                                                                                                as to what is meant by ‘‘escorting,’’
                                        who do not hold a TWIC would still be                                                                          liable for some type of breach
                                                                                                which we hope will alleviate these
                                        required to show an acceptable form of                                                                         unforeseeable within the federal port
                                        identification, as set forth in §§ 101.515                                                                     security regulations.
                                                                                                   One commenter raised the question of
                                        and 104.265(e)(3). Current Coast Guard                                                                            We agree that possession of a TWIC
                                                                                                whether family members traveling with                  should serve as evidence that a mariner
                                        guidance states that passports, seaman’s
                                        books, STCW endorsements, and                           truck drivers in the summer would be                   does not pose a security risk to a facility
                                        driver’s licenses are acceptable forms of               required to have an escort in secure                   owner, and that facility owners should
                                        identification that a foreign mariner                   areas of marine facilities. They pointed               be able to rely upon this fact in allowing
                                        could use to access a facility. The                     out that many truck drivers travel with                mariners unescorted access through
                                        commenters proposed that the Coast                      family members in the summer months.                   their facilities in order to facilitate crew
                                        Guard either add the existing approved                     In accordance with the access control               changes, take shore leave, or complete a
                                        documents contained in current Coast                    provisions of both the NPRM and the                    variety of other duties that may require
                                        Guard guidance to the list of acceptable                final rule, owners and operators of                    the mariner to step off of the vessel onto
                                        items in proposed § 105.255(f)(4), or                   facilities are required to check                       the facility. Issues of liability are beyond
                                        clarify in the comments to the final rule               identification of all persons prior to                 the scope of this rule.
                                        that existing approved documents are                    granting access and to require a TWIC                     A commenter expressed concern
                                        still acceptable as ‘‘government                        prior to granting unescorted access to                 about how it would implement the
                                        identification’’ so long as they comply                 secure areas. In the case of family                    proposed rule at its fenced port
                                        with proposed § 101.515. The                            members traveling with authorized                      facilities, where access control is
                                        commenters also suggest the Coast                       personnel who require unescorted                       handled by security officers who check
                                        Guard add ‘‘crew’’ or ‘‘crew of a foreign               access to secure areas of a facility and               the identification of everyone who
                                        vessel’’ into the list of non-TWIC                      also hold a TWIC, it remains the                       drives in. The commenter said it did not
                                        holding personnel referenced in                         responsibility of the owner or operator                seem practical to have employees use a
                                        proposed § 105.255(f)(4).                               to continue to either allow the                        card reader just to drive in past the
                                           The list of documents found in                       authorized personnel to serve as the                   security officers. The company also said
                                        § 105.255(f)(4) are intended to be used                 escort for their family member, or to                  that the restricted areas of its facilities
                                        to verify an individual’s reason for                    follow the same procedure used for any                 are not enclosed spaces that can be
                                        accessing a facility. The inspection of                 other visitor that does not hold a TWIC.               locked off, so card readers would not
                                        these documents should be read in                          Some comments proposed that                         work to control access to them.
                                        conjunction with the general                            current security programs or                              While card readers are not required by
                                        requirement to check an individual’s                    credentialing programs should be                       this rule, owner/operators remain
                                        identification by examining an ID                       evaluated as an alternative to the                     responsible for controlling access to
                                        meeting the requirements set out in                     proposed rule.                                         restricted areas in accordance with
                                        § 101.515. We have not amended either                      The MTSA regulations in 33 CFR                      existing regulations. Additionally, it is
                                        §§ 105.255 or 101.515 to specify that the               parts 101, 104, 105 and 106 provide for                noted that the definition of secure area
                                        items listed in the Policy Advisory are                 acceptance of ASPs, waivers, or                        is not the same as restricted area, as
                                        adequate, but we have no intention, at                  equivalents. These provisions still                    explained elsewhere in this final rule.
                                        this time, of changing that guidance.                   apply, even with the addition of the                   This final rule imposes a responsibility
                                           One commenter also recommended                       TWIC requirements. Note, however, that                 on owner/operators to ensure that only
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                                        the revision of 33 CFR 105.255(b)(1) to                 they would only apply to the facility                  TWIC holders are allowed unescorted
                                        read ‘‘Each location allowing means of                  owner/operator’s access control                        access to secure areas. While satisfying
                                        access to designated secure areas on the                responsibilities; they would not                       the escorting requirement for
                                        facility must be addressed.’’ The                       alleviate an individual’s burden to                    individuals without a TWIC may be
                                        commenter stated that as currently                      apply for and obtain a TWIC if they                    accomplished by other means than

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                                                         Federal Register / Vol. 72, No. 16 / Thursday, January 25, 2007 / Rules and Regulations                                           3535

                                        requiring a side-by-side escort in some                 geographic boundaries of U.S.                          transporting crew members to MODUs
                                        secure areas, this final rule requires that             jurisdiction to employ non-U.S. citizens               that are not subject to part 106, and
                                        owner/operators ensure that access to                   and immigrants in their crews. The                     therefore will not have TWICs. We
                                        restricted areas by individuals without a               commenter noted that MODUs in                          believe that the clarification of the term
                                        TWIC is only allowed while in the                       particular are often required to employ                ‘‘escorting’’ should provide some relief
                                        presence of at least one TWIC holder.                   indigenous labor as a condition of                     to these owner/operators.
                                           One commenter said that it is                        operations on the continental shelf of                    One commenter noted that the
                                        necessary that the rule put the eventual                another nation, and it is difficult to                 proposed rule states that foreign vessels
                                        TWIC holding population on notice that                  envision a scenario under which these                  entering U.S. ports that carry a valid
                                        they will require a specific, discrete                  non-citizens could present a security                  ISPS Code certificate are deemed to be
                                        authorization or a ‘‘business purpose’’                 threat to the United States. Similarly,                in compliance with part 104, except
                                        when seeking access. The company                        the commenter notes that the manning                   §§ 104.240, 104.255, 104.292, and
                                        requested that the final rule restore                   statutes recognize that non-citizens                   104.295. And, under § 104.105(d), the
                                        language that is currently in 33 CFR                    should be permitted to fill the vacancies              proposed rule exempts all foreign
                                        105.255(e)(3). That language clearly                    created when a vessel sailing foreign is               vessels from the TWIC requirements.
                                        requires that the reason for access be                  deprived of members of its required                    Several commenters requested
                                        checked as a routine part of access                     complement. The commenter concluded                    confirmation that the combination of the
                                        control. The company said that this                     that it is simply unreasonable to expect               exemption of foreign vessels from the
                                        requirement is an important and                         that an escort with a TWIC can be                      TWIC requirement and the existing
                                        essential layer of access security and                  provided for either a watchstanding                    acceptance of ISPS certification for
                                        affirms the requirement in 33 CFR                       member of the crew of an OSV for the                   foreign vessels excludes an OCS facility
                                        105.255(a)(4). The company added that                   duration of a voyage, or to an industrial              which is a foreign-flag MODU ‘‘on
                                        this requirement has been muddled and                   worker on a MODU for the duration of                   location’’ from the TWIC requirements.
                                        diminished as the requirement for                       a foreign drilling contract.                           The commenters also requested
                                        asserting business purpose when                            One commenter stated that strict                    confirmation that there would be no
                                        seeking access found at 33 CFR                          adherence to the TWIC requirements of                  TWIC requirements for a non-covered
                                        105.255(f)(4) now only applies to                       this part is simply not feasible for                   MODU working next to or over a
                                        persons not holding a TWIC and seeking                  vessels routinely operating outside the                covered OCS facility. Another
                                        entry.                                                  United States. The commenter argued                    commenter, seeking clarification of the
                                           Section 105.255(a)(4) clearly                        that application of the requirements, as               proposed rule, asked: If you have a
                                        establishes the requirement that                        proposed, would render it impossible to                voluntary compliance for a MODU and
                                        individuals may only be allowed                         operate a U.S. flag MODU or OSV in                     it obtains a flag-issued International
                                        unescorted access if they: (1) Have a                   foreign waters, would make it                          Ship and Port Facilities Security Code
                                        valid TWIC and (2) are authorized to be                 impossible to affect repairs in a foreign              certificate, is that sufficient for
                                        in the area pursuant to the facility                    shipyard, and would negate specific                    exemption from TWIC requirements?
                                        security plan.                                          provision of the manning statutes that                    A foreign-flag MODU ‘‘on location’’ in
                                        (g). Outer Continental Shelf (OCS)                      permit the employment of non-citizens                  U.S. waters and holding valid ISPS
                                        Facility-Specific Issues                                in specific circumstances. Therefore the               certification would be exempted from
                                                                                                commenter recommended that the                         the TWIC requirements of parts 104 and
                                           Some commenters referenced                           proposed § 104.105(d) be revised to read               106.
                                        proposed § 101.514, the general                         as follows:                                               One commenter believed the escort
                                        requirement that ‘‘all persons requiring                   (d) the TWIC requirements, including                rules were unreasonable for the oil and
                                        unescorted access to secure areas of                    those related to unescorted access,                    gas industry and anticipated that these
                                        vessels, facilities and OCS facilities,                 found in this chapter do not apply to:                 rules would lead to company and
                                        regulated by parts 104, 105 or 106 of                      (1) foreign vessels;                                service personnel needing to obtain a
                                        this subchapter must possess a                             (2) U.S. vessels employing non-citizen              TWIC.
                                        TWIC. . . .’’ One commenter stated that                 crewmembers under the provisions of                       The clarification to the escort
                                        this requirement should either be                       46 U.S.C. 8103(b)(3) or (e), with respect              provisions, provided elsewhere in this
                                        removed from this section and placed                    to those crewmembers;                                  final rule, should alleviate the concerns
                                        individually in parts 104, 105 and 106,                    (3) U.S. MODUs, offshore supply                     of this commenter by limiting the need
                                        or a specific and limited exemption                     vessels or other vessels engaged in                    for live accompaniment to those
                                        provided for certain vessels regulated                  support of exploration, exploitation, or               instances where the company/service
                                        under part 104. One commenter said                      production of offshore mineral energy                  personnel are in restricted areas. At all
                                        strict adherence to the TWIC                            resources operating beyond the water                   other times, monitoring would be
                                        requirements is not feasible for off-shore              above the Outer Continental Shelf (as                  acceptable.
                                        foreign vessels routinely operating on                  that term is defined in section 2(a) of the
                                        the U.S. OCS. One commenter said                                                                               (h). Other Issues
                                                                                                Outer Continental Shelf Lands Act (43
                                        § 101.514 is a particularly onerous                     U.S.C. 1331 (a)).                                        Many commenters said that the rule
                                        requirement for newly hired personnel                      As noted above in the discussion of                 should give owners/operators of vessels
                                        to work on a U.S. flagged mobile                        the changes to the Coast Guard                         and facilities the ability to use the TWIC
                                        offshore drilling units (MODUs) and do                  provisions of this rule, we are adding a               as a ‘‘visual identity badge.’’ Some
                                        not possess a TWIC. Another                             provision to the definition of secure area             commenters specifically advocated
                                        commenter stated that these limited                     in § 101.105 that states that U.S. vessels             visual checks of TWICs at MARSEC
                                        exemptions should include U.S. flag                     operating under the waiver provision in                Level 1. Another said that TWICs could
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                                        MODUs and offshore supply vessels                       46 U.S.C. 8103 (b)(3)(A) or (B) have no                be used as a visual identity badge in the
                                        (OSVs) because the vessel manning                       secure areas.                                          early stages of implementing the rule
                                        statutes specifically recognize the                        We are sympathetic to the concerns of               and could be used with readers after
                                        necessity of permitting these vessels                   OSV owner/operators, whose vessels are                 more experience is gained with the
                                        which are operating outside the                         required to comply with part 104 but are               reader technology. One association

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                                        3536             Federal Register / Vol. 72, No. 16 / Thursday, January 25, 2007 / Rules and Regulations

                                        asked that passenger vessels and                        train operator to work out with the                    so the rule would not provide any
                                        facilities be allowed to employ TWICs                   facility owner/operator, in accordance                 security benefits to these operations.
                                        as visual identity badges and not be                    with the latter’s FSP, but the baseline                   The MTSA regulations are inherently
                                        required to install readers.                            requirement is that unescorted access                  risk-based, as only those facilities and
                                           Several commenters found fault with                  not be granted to secure areas without                 vessels determined to be at risk of a TSI
                                        the statement in the NPRM that                          a TWIC.                                                were included in the applicability of
                                        ‘‘allowing owners/operators to rely                        Commenters complained that the                      subchapter H. The TWIC regulations
                                        solely on the visual identity badge                     proposed rule reflects a ‘‘one size fits               intended to provide flexibility to owner/
                                        system is unreasonable in light of the                  all’’ approach and did not take into                   operators through the submission and
                                        additional cost of the credential, and the              account the different levels of risk and               approval process of their individual
                                        available security enhancements that                    vulnerability across the maritime                      TWIC Addenda and security plans.
                                        the increased cost represents.’’ These                  industry. Several commenters said that                 Because many of the ‘‘one size fits all’’
                                        commenters did not think the                            the proposed rule should be reviewed to                requirements have been removed from
                                        requirement to use TWICS with                           assure that is both risk-based and                     the final rule, we defer a more specific
                                        biometric readers should be justified by                incorporates performance-based                         response until our subsequent
                                        the cost of the TWICs themselves. One                   standards as much as possible. One                     rulemaking on reader requirements. We
                                        commenter noted that TSA officials                      commenter noted that most programs                     will keep these comments in mind as
                                        have endorsed the use of a visual                       implemented under MTSA have thus far                   we draft our NPRM re-proposing reader
                                        identity badge system for airport                       relied upon risk-based standards, but                  and TWIC validation requirements.
                                        employees and said that if such a                       that the proposed TWIC rule is based on                   Many commenters said that the
                                        system if sufficient for the aviation                   a ‘‘one size fits all’’ formula that applies           proposed rule would cause
                                        sector, it should also be used in the                   the same security rules and the same                   unreasonable delays for people
                                        maritime sector. A shipbuilding and                     costs to all operators. The association                attempting to enter facilities.
                                        ship repair company argued that a                       said that the broad application of this                Commenters often said that the resulting
                                        visual identity badge system is needed                  approach could prove to be an undue                    delays would disrupt or slow the flow
                                        to prevent delays as hundreds of                        hardship for smaller and less threatened               of freight through U.S. ports. One
                                        employees arrive for work.                              terminals and facilities that do not have              commenter referred specifically to
                                           As already noted, this final does not                access to the same resources as larger                 employees who move in and out of
                                        address reader requirements. However,                   facilities. The commenter suggested that               facilities several times a day. They
                                        owners and operators may choose to use                  TSA and Coast Guard consider whether                   expressed concern about these
                                        the TWIC with an existing physical                      a risk assessment could be incorporated                employees having to do a biometric
                                        access control system. The hotlist will                 into the TWIC program, where practical,                verification each time they re-enter the
                                        be available to owners and operators                    to minimize any disadvantage or undue                  facility. Several commenters said that
                                        who could use the magnetic strip or the                 adverse impact on smaller marine                       the delays caused by the proposed rule
                                        cardholder unique identifier (CHUID)                    facilities.                                            would result in increased air pollution,
                                        embedded in the credential to tie it into                  Some commenters noted that the                      because trucks would idle longer while
                                        a legacy system that checks those                       ‘‘Low Consequence Facility’’                           waiting to enter port facilities.
                                        entering against the hotlist. Although                  designation allows the COTP some                          Commenters said that the proposed
                                        this option is available for owners and                 flexibility in determining how to                      rule would drive up the cost of goods
                                        operators, the use of reader technology                 logically secure the port without                      that are shipped through ports, which
                                        is not required at this time. We will                   burdening industry with unnecessary                    would drive business away. One
                                        revisit concerns related to other uses of               requirements that produce no viable                    commenter stated that the proposed rule
                                        the TWIC in the subsequent rulemaking.                  improvement in terrorism-related                       would pose a potentially significant
                                           Commenters found access control                      security. The commenters asked TSA                     barrier to international trade. Another
                                        regulations for train workers within the                and Coast Guard to incorporate the ‘‘low               remarked on the importance of the Port
                                        current TWIC proposal unclear. One                      consequence facility’’ designation into                Authority of New York-New Jersey to
                                        commenter recommended that rail                         the regulations.                                       the regional economy and the need to
                                        facilities be allowed to check workers                     Another commenter similarly                         minimize disruptions to its operations.
                                        before boarding a port-facility bound                   requested alternative facility-specific                A commenter predicted that the rule’s
                                        train; another was unsure if train                      identification systems for ‘‘low-risk                  impacts on port operations would have
                                        operators would require a TWIC and                      operations.’’ Another commenter said                   secondary effects on industries that rely
                                        how other rail worker access control                    that a risk/vulnerability assessment                   on imports. One commenter said that
                                        issues should be handled by the                         would result in more vessels and                       the cost of complying with the proposed
                                        industry. Similarly, another commenter                  facilities being exempted from the TWIC                rule would increase the cost of U.S.
                                        noted that train crews pose a unique                    requirement. As an example, he                         exports, reducing the competitiveness of
                                        problem because they enter maritime                     suggested that the cut-off for vessels                 American companies in the global
                                        facilities on trains proceeding down the                would be between 500 and 5,000 gross                   marketplace. Another commenter said
                                        track. Trains do not typically stop at the              tons. Two commenters said that they                    that the cost of complying with the
                                        property line of maritime facilities, and               did not consider the proposed rule to be               proposed rule would hurt the
                                        there is no guard house at which the                    tailored to specific and realistic security            competitiveness of U.S.-flagged ships.
                                        train crews can scan their credentials.                 threats facing the inland marine                          The Department understands that this
                                        The commenter recommended that                          transportation industry. Another                       rulemaking imposes costs on
                                        railroads be permitted to check crews                   commenter said that requiring card                     businesses. The Department believes
                                        before they get on the train.                           readers for low-risk business operations               that those costs are a product of
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                                           Rail workers will require TWICs if                   would be unreasonable and                              statutory mandates and the Nation’s
                                        their job requires them to have                         unproductive. The company also said                    security needs. We refer readers to the
                                        unescorted access to secure areas of                    that tow operations would be                           accompanying Final Assessment for
                                        maritime facilities. How and when those                 susceptible to armed takeover attempts                 further details on our assessments of the
                                        TWICs are checked is a process for the                  even with a TWIC requirement in place,                 costs and benefits of this rule. This

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                                                         Federal Register / Vol. 72, No. 16 / Thursday, January 25, 2007 / Rules and Regulations                                           3537

                                        should assuage concerns arising from                    flexibility is required in implementation              company said this would mean less
                                        the use of the TWIC as set forth in the                 by a particular industry or operation,                 work for some companies and for the
                                        NPRM. We will revisit concerns related                  the waiver and ASP provisions that                     Marine Safety Center (MSC) that must
                                        to other uses of the TWIC in a                          currently exist in the regulations can                 do the reviews and approvals. Another
                                        subsequent rulemaking.                                  provide it.                                            commenter asked whether the TWIC
                                           One commenter requested that the                        One commenter recommended that                      Addendum would be considered SSI
                                        final rule specify that no port facility or             the rule allow facilities to store                     and whether a vessel operator could
                                        vessel may require the visitor or worker                biometric information from the TWIC in                 show the Addendum to people when
                                        to give up possession of their TWIC as                  a facility database with the individual’s              they come on board the vessel.
                                        a basis for entry. Any handling of the                  permission. This option, exercised at                     One commenter recommended that
                                        card by anyone other than the                           the discretion of the facility, would                  the Coast Guard be required to notify an
                                        cardholder should be limited strictly to                allow the facility operator to validate an             entity submitting a TWIC Addendum
                                        the immediate task of processing the                    individual’s identity by matching the                  once the Coast Guard makes a
                                        card in a reader, and the card must be                  fingerprint with the biometric                         determination of completeness. The
                                        promptly returned to the holder unless                  information stored in the facility                     commenter said that a confirmation
                                        it has expired or been flagged for                      database in the event the individual                   letter from the Coast Guard that a
                                        revocation.                                             leaves his or her card at home on a                    complete submission has been received
                                           We agree with this comment as it                     given day. Local controls could be                     and is undergoing review would prevent
                                        relates to the final rule issued today. We              written in the FSP, and approved by the                potential delays to vessels that have not
                                        are aware of several facilities that use                Coast Guard, to prevent abuse of this                  yet received an approval letter from the
                                        their own badging system, and as part                   option.                                                Coast Guard. This commenter also
                                        of that system they require visitors to                    One commenter wants DHS to                          recommended that entities submitting a
                                        leave a form of personal identification                 grandfather facilities that have installed             TWIC Addendum should include a
                                        with a security officer before they are                 new access control systems within the                  contact point and method by which the
                                        able to receive a facility specific badge.              last three years so they will recover their            Coast Guard could easily accomplish
                                        These systems have largely been                         costs in implementing them.                            this requirement (e.g., e-mail, fax, or
                                        approved by the Coast Guard. However,                      Many expressed concerns that the
                                                                                                                                                       hard copy via surface mail).
                                        we do not think it is appropriate for                   TWIC would displace sophisticated
                                                                                                access control systems already in place                   One commenter requested that the
                                        these visitors to be required to leave
                                                                                                at regulated facilities. Many suggested                TWIC Addendum be reviewed by the
                                        their TWIC behind if they have another
                                                                                                that facilities that had invested                      Coast Guard itself and not by outside
                                        form of identification they can leave
                                                                                                significant amounts of capital into                    consultants.
                                        (e.g., drivers license) after the TWIC has
                                        been visually inspected.                                access control systems be allowed to                      One commenter said that the
                                           One commenter said that the original                 continue using those systems in                        requirement that the TWIC Addendum
                                        intended purpose of the TWIC was to                     conjunction with TWIC. Others                          be kept ‘‘on site’’ or onboard the vessel
                                        facilitate access to secure vessels and                 suggested that facilities be allowed to                should be revised. Specifically, the
                                        facilities for those with the right to                  use alternate systems in place of TWIC.                commenter said that the rule should
                                        obtain such access. The commenter said                     TWIC technology can be adapted to                   require the TWIC Addendum to be
                                        that the original intent did not include                existing access control systems, and it                maintained at the same location as the
                                        denying access to those without a TWIC.                 was not our intent to force owner/                     VSP or ASP. The commenter noted that
                                           We partially agree. While facilitating               operators with sophisticated systems to                under one approved ASP, the ASP must
                                        access was one intended result, it also                 abandon those systems to accommodate                   be maintained by the Company Security
                                        had the purpose of increasing security at               TWIC. We believe that TWIC                             Officer at a secure location, but need not
                                        our nation’s ports by identifying those                 enhancements can be fully integrated to                be carried on board the towing vessel.
                                        individuals who would receive                           most existing physical access control                  The commenter requested that the same
                                        unescorted access to secure areas. While                systems, and hope that the language of                 approach be followed with the TWIC
                                        the regulations do not prevent an                       the final rule clarifies that owner/                   Addendum.
                                        owner/operator from granting access to                  operators need not replace existing                       One commenter posed several
                                        individuals without a TWIC, they are                    systems so long as TWIC capabilities are               questions regarding how this
                                        now required to ensure that an                          appropriately incorporated into the                    requirement would apply to OCS
                                        individual without a TWIC is either                     facilities’ existing system. A NVIC                    facilities (§ 106.115). The company
                                        escorted or is not allowed to enter                     providing further guidance on applying                 asked if the requirement would apply to
                                        secure areas.                                           the access control requirements in this                a foreign-flag MODU ‘‘on location’’ if
                                           Some commenters said that the rule                   final rule is forthcoming.                             the vessel has an approved ship security
                                        was written for ‘‘blue water’’ ports and                                                                       plan (SSP) as required under the ISPS
                                        oceangoing vessels but would not work                   9. TWIC Addendum                                       Code. The company also asked how the
                                        well for the off-shore energy sector or                    One commenter said that the time                    requirement would apply to a non-self-
                                        the inland towing industry. Other                       allowed for completion of a TWIC                       propelled foreign flag MODU ‘‘on
                                        commenters said that the proposed rules                 Addendum should be at least one year.                  location’’ working next to or over an
                                        appear to have been developed with                      The company based this request on the                  OCS facility that is required to comply
                                        little appreciation for the operational                 complexity of the proposed program,                    with TWIC requirements.
                                        realities of the American tugboat,                      especially for shipyards that must                        Several commenters stated that Coast
                                        towboat and barge industry.                             coordinate TWIC requirements with                      Guard should provide clarification on
                                           Many of the concerns expressed                       screening programs required by other                   why companies and vessels need to
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                                        regarding the TWIC implementation as                    federal agencies. Another commenter                    integrate the TWIC Addendum into the
                                        proposed by the NPRM should be                          requested that companies be allowed to                 ship’s security plan. They said that if set
                                        assuaged by deferring TWIC reader                       submit amendments to their VSPs that                   up properly, the TWIC Addendum
                                        requirements to a subsequent                            incorporate their TWIC provisions                      could be a stand-alone document as
                                        rulemaking. We believe that if further                  rather than a separate addendum. The                   easy reference for persons with security

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                                        3538             Federal Register / Vol. 72, No. 16 / Thursday, January 25, 2007 / Rules and Regulations

                                        duties that are authorized to view this                 access to vessels generally and in                     required to have a TWIC. We note here
                                        information.                                            particular prohibit access of                          that shipyards are specifically exempt
                                           One commenter notes that, as                         unauthorized individuals to restricted                 from 33 CFR part 105 applicability (see
                                        proposed, §§ 105.500 to 105.510 would                   areas of vessels. The commenter went                   33 CFR 105.110(c)), and would only
                                        allow an owner/operator to resubmit an                  on to state that TWICs should be used                  come under the facility security
                                        entire security plan with a list of                     only as a basic identification device and              regulations if the shipyard is subject to
                                        sections amended as the TWIC                            proposed 49 CFR 1572.23 and 33 CFR                     a separate applicability requirement,
                                        Addendum, but once approved, it                         104.265 should be amended so that                      such as being regulated under 33 CFR
                                        would carry the same expiration date as                 mariners are only subject to the existing              part 154, requirements for facilities
                                        it had prior to the amendment. He                       VSPs when onboard a vessel.                            transferring oil or hazardous material in
                                        recommended that if the revised plan                       We disagree that the TWIC establishes               bulk.
                                        were submitted to the COPT with a                       duplicative security requirements. The                    Both the NPRM and the final rule
                                        revised facility security assessment, that              TWIC will enhance existing security                    provide for a means through which
                                        a new time line should start and the                    requirements by improving the ability of               security threat assessments done by
                                        plan should be approved for five years                  owner/operators to prevent access by                   other governmental agencies may be
                                        from the date of approval.                              unauthorized individuals to restricted                 deemed comparable. If there are
                                           One commenter recommended that                       areas of the vessel and the vessel in                  background checks in place under the
                                        the TWIC Addendum requirements (33                      general. Therefore, we decline to adopt                DOD programs, and if those background
                                        CFR 105.120, 33 CFR 105.200 and 33                      the recommendation.                                    checks include security threat
                                        CFR 105.500–510) should be revised to                      One commenter encouraged the Coast                  assessments that are deemed
                                        explicitly require facilities to designate              Guard to provide for some flexibility in               comparable to the one done by TSA,
                                        the secure area within which access                     the drafting of security plans to                      then individuals may receive their
                                        control is required. The commenter                      accommodate port workers who                           TWIC at a reduced cost, but they will
                                        stated that once the Coast Guard has                    frequently move between secure and                     still need to apply at a TSA TWIC
                                        approved the TWIC Addendum, the                         non-secure areas during the course of a                enrollment center.
                                        facility would be protected from                        single operation. The association said                    Commenters stated that the rule
                                        inspectors voicing their personal                       that continuous application of the                     assumes that people with TWICs will be
                                        opinion that the secure area does not                   limitation to gain re-entry access would               facility employees, but that many are
                                        comply with their interpretation of the                 be impractical and could potentially                   not (particularly truckers).
                                        definition.                                             drive up costs unnecessarily. As an                       We disagree with these comments. As
                                           We removed the TWIC Addendum                         example, the association said that they                we stated in the NPRM, the TWIC
                                        requirement from the final rule when                    need the ability to service cruise ship                requirements applies U.S.-credentialed
                                        we determined that the reader                           vessels without access procedures that                 mariners and to anyone seeking
                                        requirements would be delayed until a                   require multiple interfacing with                      unescorted access to secure areas within
                                        subsequent rulemaking. The purpose of                   biometric readers.                                     MTSA-regulated vessels or facilities. It
                                        the TWIC Addendum was to allow the                         We believe that the use of the TWIC                 is not limited to facility employees, nor
                                        owner/operator to explain how the                       as a visual identity badge, as required in             did we assume it would be.
                                        readers would be incorporated into their                this final rule, will alleviate some of the               One commenter noted that FSPs differ
                                        overall access control structure, within                burden noted in this comment.                          based on the threat assessment
                                        the standards provided in the NPRM.                        One commenter opined on the                         conducted for each facility. He said that
                                        With the removal of the reader                          application of the TWIC requirements to                the NPRM might encourage a
                                        requirements from this final rule, we                   shipyards involved in building and                     misunderstanding among the public that
                                        feel it is appropriate to also remove the               repairing U.S. military and Coast Guard                every facility is ‘‘doing business’’
                                        TWIC Addendum requirement. In order                     vessels. The commenter stated that                     strictly according to the Code of Federal
                                        to ensure that security is not                          these shipyards must already comply                    Regulations (CFR). He said, ‘‘It is very
                                        compromised, we have added to the                       with DOD security requirements, and                    difficult sometime for people to
                                        access control provisions in each part                  claimed that the security afforded by the              understand that [a facility security plan]
                                        (33 CFR parts 104, 105, and 106) to                     MTSA regulations is less                               may not specifically reflect what the
                                        provide specific security measures (as                  comprehensive than the security                        CFR says.’’
                                        opposed to performance standards) to be                 provided by DOD security measures.                        We do not agree with this comment.
                                        implemented by owners/operators in                      The commenter said that complying                      If a facility is operating under its
                                        the area of access control. Additionally,               with both sets of security requirements                approved FSP, then it is in compliance
                                        because we envision the TWIC                            would be costly and could potentially                  with the regulations. The MTSA
                                        Addendum to be a part of the                            reduce security by causing confusion                   regulations are performance standards,
                                        subsequent rulemaking on reader                         and increasing administrative burdens.                 and as such there are a variety of ways
                                        requirements, we felt it would be overly                The commenter noted that the increased                 in which a facility might meet the
                                        burdensome to also require a TWIC                       costs and administrative delays would                  standards contained therein. Unless a
                                        Addendum at this point in time.                         be borne ultimately by the U.S. Navy                   facility has been granted a waiver from
                                           As the TWIC Addendum requirement                     and Coast Guard, and for these reasons                 portions of the regulations, we fail to see
                                        is no longer included in this final rule,               requested that the shipyards be                        how a FSP would not reflect what is
                                        we will address these concerns in a                     exempted from complying with the                       stated in the CFR.
                                        subsequent rulemaking.                                  TWIC rule.
                                           One commenter said that Coast                           We disagree with this comment as it                 10. Compliance Dates
                                        Guard-approved VSPs should dictate                      pertains to ‘‘all shipyards.’’ If a shipyard             The NPRM proposed requiring
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                                        security provisions once an individual                  falls within the applicability of the                  owners/operators to develop and submit
                                        is onboard the vessel and that the                      MTSA regulations and is required to                    TWIC Addendums within six months of
                                        proposed rule should not establish                      submit a FSP under 46 U.S.C. 70105,                    publication of the final rule. One
                                        duplicative security requirements. The                  then any individual requiring                          commenter pointed out that the Coast
                                        commenter said that the VSPs limit                      unescorted access to a secure area is                  Guard allows itself five years to fulfill

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                                                         Federal Register / Vol. 72, No. 16 / Thursday, January 25, 2007 / Rules and Regulations                                          3539

                                        its responsibilities, but owners/                       each COTP zone at least 90 days in                     were concerned about the logistics of
                                        operators only get 6 months. One                        advance by a Notice published in the                   processing applications and issuing
                                        commenter wanted the text regarding                     Federal Register. The latest date by                   TWIC cards to hundreds of thousands of
                                        TWIC Addendum submission to be                          which facilities can expect to be                      workers. One commenter believed TWIC
                                        revised to read ‘‘six months after such                 required to comply will be September                   is being implemented due to political
                                        date that the Secretary deems the                       25, 2008. Additionally, mariners will                  issues and pressures. One commenter
                                        program has been fully implemented                      not need to hold a TWIC until                          thought the timeline should be changed
                                        within the maritime work force ashore.’’                September 25, 2008. They may rely                      to start compliance after the technology
                                        One commenter wanted six months to                      upon their Coast Guard-issued                          for the cards and the readers has been
                                        be extended to at least one year or one                 credential and a photo ID to gain                      proven to work instead of the date the
                                        year from the time the Coast Guard                      unescorted access to secure areas to any               final rule is published. Three
                                        approves the TWIC Addendum. This                        facility that has a compliance date                    commenters stated the rule needs
                                        would allow time for adjusting capital                  earlier than September 25, 2008.                       clarification between page 29407, where
                                        budgets and integrating the TWIC                           One commenter stated that the final                 it discusses a phased enrollment
                                        readers/system with existing access                     rule should clearly state the dates for                process, and page 24909, where it lists
                                        control systems. One commenter                          compliance, and found § 104.115(d)(2)                  timeframes for plans and compliance.
                                        wanted to know what happens with                        to be confusing as written. Two                        They stated that the timeframes do not
                                        regards to this timeframe if TWIC                       commenters argue that the TWIC                         allow for a phased process. All
                                        readers are not available when the                      enrollment process will never be                       commenters recommend adopting the
                                        implementation period begins or are not                 ‘‘complete’’ since employers will always               phased process, and one added it
                                        readily able to be integrated into                      be submitting new applicants for                       should be based on risk and employee
                                        existing systems.                                       enrollment, and asked who determines                   access to critical infrastructure.
                                           These sections of the NPRM also                      that enrollment is complete.                              One commenter wanted compliance
                                        would have required vessel, facility, and                  We are sensitive to these comments,                 dates to begin after the Coast Guard has
                                        OCS facility owners/operators be                        however until the contract for the entity              approved the revised plans. Another
                                        operating according to their approved                   that will be operating enrollment                      asked the Coast Guard to review their
                                        TWIC Addendum between 12 and 18                         centers is complete, we will not know                  implementation timeline and ensure
                                        months after publication of the final                   exactly what date will apply to each                   that industry has adequate time to
                                        rule, depending on whether enrollment                   COTP zone. We will communicate more                    successfully implement all of the
                                        has been completed in the port in which                 specific dates as they become available,               requirements.
                                        the vessel is operating. One commenter                  but can state that we expect that initial                 With the removal of many of the more
                                        expressed concern that the 750,000                      enrollment (i.e., the enrollment rollout)              technologically complex portions of the
                                        cards needed for initial enrollment                     will be complete nationally within 18                  NPRM from this final rule, we have
                                        cannot be produced within 18 months.                    months of the first TWIC enrollment.                   attempted to clarify compliance
                                        Eight commenters believed the timeline                     One commenter believed that the                     deadlines for this final rule within the
                                        is totally unrealistic. One commenter                   schedule for the applicant to provide                  regulation text. The initial enrollment
                                        recommended that the ‘‘effective dates’’                information is confusing. The                          period will be a phased enrollment
                                        section be reserved until it is                         implementation schedule in § 1572.19                   period, which we estimate will take 18
                                        demonstrated that the documents can be                  appears to contradict the schedule in                  months to complete. Owners/operators
                                        issued and equipment is both available                  § 104.115.                                             of vessels will be required to comply
                                        and functional, and stated that a                          In order to reduce or eliminate any                 with the TWIC provisions of this final
                                        subsequent notice could be published in                 confusion, we point out that § 1572.19                 rule on September 25, 2008. This means
                                        the Federal Register establishing                       applies to the individual TWIC holder                  that by this date, vessel owners/
                                        effective dates of the access control and               and § 104.115 applies to vessel owners                 operators will need to begin visually
                                        credentialing provisions when they are                  and operators of regulated vessels.                    inspecting TWICs before they grant
                                        ready. Five commenters requested the                       One commenter said the rule needs to                individuals unescorted access to secure
                                        deadline be extended. Three                             clarify and focus on the Access Control                areas. However, many workers on
                                        commenters wanted to extend the                         System pilot timeline. Operational tests               vessels will be required to use a TWIC
                                        deadline specifically to afford time to                 in selected pilot ports and terminals                  to access facilities en route to their
                                        budget for TWIC compliance (which                       should be concluded and the TSA data                   vessel. Additionally, enrollment center
                                        typically requires a three-year lead time)              interfaces checked and proven before                   scheduling has been set up to address
                                        and/or request/receive Federal grant                    the Access Control System is designed                  initial enrollments of merchant mariner
                                        funding.                                                and the TWIC Addendum created. It is                   and non-merchant mariner workers
                                           The TWIC Addendum requirements                       not clear if the timeframes apply to just              concurrently at each port. Mariners may
                                        have been removed from this final rule,                 the TWIC rollout or to both the TWIC                   apply at any TWIC enrollment center, at
                                        and as such it is not necessary to                      and the Access Control System. Three                   any time during the enrollment period.
                                        respond to them at this time. We will                   commenters felt that the timeframe                     Although mariners are not required to
                                        keep them in mind as we draft our                       could potentially cause significant                    have a TWIC until the end of the
                                        NPRM on reader requirements. As noted                   additional costs to the industry (i.e.,                enrollment period, they are encouraged
                                        above, we have also revised the                         obtaining equipment and systems,                       to apply early. Vessel owners/operators
                                        compliance dates slightly. Vessels will                 hiring personnel to run the programs,                  will be better served ensuring their
                                        now have 20 months from the                             etc.). Two commenters said the deadline                crews are enrolled during initial
                                        publication date of this final rule to                  for compliance listed in 49 CFR 1572.19                enrollment periods because they may
                                        implement the new TWIC access control                   is unreasonable. It should be extended                 need to access many different facilities
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                                        provisions. Facilities will still have their            to a minimum of 18 months from the                     throughout the country, and facility
                                        compliance date tied to the completion                  implementation of the final rule. Six                  owner/operators must be in compliance
                                        of initial enrollment in the COTP zone                  commenters expressed the need for                      with the access control provisions as the
                                        where the facility is located. This date                proper field testing of the biometric                  initial roll out enrollment in their COTP
                                        will vary, and will be announced for                    readers prior to usage. Two commenters                 zone is completed. As noted above,

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                                        3540             Federal Register / Vol. 72, No. 16 / Thursday, January 25, 2007 / Rules and Regulations

                                        these exact dates will be announced in                  legacy system that checks the TWIC                     agreements and arrangements are
                                        Federal Register Notices.                               against the hotlist.                                   addressed in TWIC.
                                           Two commenters requested                                Another commenter wanted to know                      We do not feel that this final rule is
                                        implementation of TWIC cards be                         what protection there is if the facility               the place to address labor concerns
                                        delayed for vessel personnel until the                  that you are going to does not comply                  between facilities and unions.
                                        Coast Guard has redesigned its MMC to                   with the TWIC program.                                 12. Additional Requirements—Cruise
                                        incorporate TWIC security features or at                   If the facility does not comply because             Ships
                                        least 18 months after TWIC reader                       the MTSA regulations do not apply to
                                        systems are ready.                                      it, there is no issue. If however, a                      Section 104.295(a)(1) proposed higher
                                                                                                MTSA-regulated facility does not                       burdens on U.S. cruise ships, such as
                                           With the removal of the TWIC reader
                                                                                                visually inspect TWICs as required by                  requiring that an individual’s identity
                                        requirements from this final rule, this
                                                                                                this final rule, they are subject to the               be checked against their TWIC at each
                                        comment is no longer relevant.
                                                                                                civil penalty provisions found in 33                   entry to the vessel, and that the validity
                                        However, we note that the compliance
                                                                                                CFR 101.415. Anyone who knows of                       of the TWIC be verified with TSA at a
                                        date of this final rule, for vessel owners/
                                                                                                such non-compliance should make a                      higher rate than for other vessels.
                                        operators, has been changed. Vessel                                                                            Commenters said that these additional
                                        owners/operators need not begin                         report to the National Response Center
                                                                                                                                                       requirements are cost-prohibitive and
                                        checking for TWICs until 20 months                      (NRC), using the contact information
                                                                                                                                                       unfair to owners and operators of U.S.-
                                        after the publication date of the final                 found in 33 CFR 101.305, as such non-
                                                                                                                                                       flagged cruise ships and should be
                                        rule. Workers on vessels will still be                  compliance is a breach of security.
                                                                                                                                                       applicable to foreign cruise ships. One
                                        subject to the security procedures at 105                  Two commenters are concerned that
                                                                                                                                                       commenter opposed this provision,
                                        and 106 facilities. Additionally,                       TSA and the Coast Guard want to
                                                                                                                                                       stating that this requirement is
                                        enrollment center scheduling has been                   publish a final rule before the end of the             excessive, burdensome and does not
                                        set-up to address initial enrollments                   year and will not adequately address the               respond to a demonstrated risk, and
                                        concurrently with MMD and non-MMD                       numerous uncertainties and questions                   under lower MARSEC level
                                        workers at each port. Vessel personnel                  on this proposed rule that were raised                 requirements, it is not necessary to
                                        will be better served enrolling during                  by the commenters.                                     verify the identity of someone who is a
                                        initial enrollment periods at each port.                   We disagree with this comment. We                   known employee.
                                                                                                have considered each and every                            While the reader requirements have
                                        11. General Compliance Issues
                                                                                                comment submitted to the docket                        been removed from this final rule, we
                                           One commenter wanted to know how                     during the 45-day comment period, as                   do not agree with the comments. Cruise
                                        the Coast Guard is going to ensure                      well as all of the comments received at                ships do carry a higher risk than other
                                        compliance with the TWIC program.                       the four public meetings that were held                passenger vessels, as the higher number
                                        Another cited a need for a means to                     in late May and early June. We have                    of passengers on-board creates a more
                                        verify the status of a TWIC in the field                made several changes to the proposed                   attractive target to terrorists.
                                        and suggested that at a minimum a call                  rule as a result of the issues and                     Additionally, the higher number of
                                        center phone number and electronic                      concerns raised, the biggest being the                 employees, including licensed crew,
                                        means are needed. They also suggested                   delay of the card reader and associated                entertainers, wait staff, and other
                                        an investigation into the costs and                     requirements. Additionally, in this                    unlicensed crew, make it less likely that
                                        benefits of equipping law enforcement                   ‘‘Discussion of comments and changes,’’                all employees will be ‘‘known’’ to the
                                        personnel with the means to validate                    we have responded to all of the                        security personnel checking credentials.
                                        driver fingerprints against a TWIC.                     comments we received.                                  However, we will keep these comments
                                           At least until we are able to finalize                  Four commenters requested that the                  in mind as we draft the NPRM to re-
                                        a second rulemaking to impose reader                    agencies issue a TWIC NVIC to assure                   propose reader requirements.
                                        requirements on the maritime                            consistent interpretation and                             Other commenters stated that most
                                        community (as appropriate), the cards                   application of the program. They also                  procedures for access can be covered
                                        will be used for access control as visual               advised that TSA should develop                        under a vessel’s security plan. One
                                        identity badges instead of being                        simplified integration plans to assist                 commenter said the crew was at the
                                        required to be read by an owner or                      companies with the implementation.                     heart of the security plan and will
                                        operator’s reader at access control                        One commenter suggested that TSA                    ensure vessel security. One commenter
                                        points. Additionally, the Coast Guard                   and Coast Guard offer ‘‘best practices’’               suggested that instead of requiring card
                                        will be confirming the identity of TWIC                 for industry to use. As an example, the                readers at every vessel entry point,
                                        holders using hand-held readers,                        company cited the need for suggestions                 employees should scan their cards at the
                                        uploaded with the most recent hotlist,                  on handling contractor personnel during                facility entry point prior to boarding
                                        during its already existing annual                      major construction projects and plant                  their assigned vessel. Another
                                        facility and vessel MTSA compliance                     turnarounds.                                           commenter stated that the proposed rule
                                        exams, unannounced facility and vessel                     We agree that a NVIC will be                        should be edited to allow for spot-
                                        spot checks, and for cause as needed.                   necessary to assist customers with                     checking of passengers and employee-
                                        Finally, although the installation of                   compliance as well as assure                           displayed badges as mandated by a
                                        readers is not currently required, the                  consistency nation-wide; this will be                  Coast Guard approved VSP at MARSEC
                                        hotlist will be made available to vessel                forthcoming to help interpret the                      Level 1, as current security plan specify.
                                        and facility owners and operators                       provisions of this rule. We are also                      These comments are no longer
                                        should they voluntarily decide to use                   issuing robust field guidance to all of                applicable, as the final rule does not
                                        the credentials within their existing                   our COTPs, to ensure uniform                           include the requirements for readers
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                                        physical access control systems. As an                  application of the requirements.                       and biometric verification. We will keep
                                        example, an owner or operator could                        One commenter expressed concern                     them in mind as we draft the NPRM to
                                        write to the magnetic strip on the card                 that union involvement may slow the                    re-propose reader requirements.
                                        or read the CHUID stored on the chip                    enrollment process. The commenter                         Under proposed § 104.295(a)(2), at
                                        embedded in the card to tie it into a                   wanted to make sure that labor                         MARSEC Level 2, the owner or operator

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                                                         Federal Register / Vol. 72, No. 16 / Thursday, January 25, 2007 / Rules and Regulations                                           3541

                                        of a U.S.-flagged cruise ship must                      a defined space within the access                      accessed are not parts of any restricted
                                        ensure that each crewmember or                          control area of the terminal that is open              area, the provisions used by the facility
                                        employee seeking to board the vessel is                 to passengers but does not require a                   to satisfy their monitoring requirements
                                        required to enter his or her correct PIN                TWIC for unescorted access.                            will likely suffice to meet our escorting
                                        prior to being allowed to board. Several                   Passenger access areas are not an                   performance standard.
                                        commenters opposed this proposed                        option for facilities, therefore many of                  One commenter stated that since the
                                        provision. Another commenter stated                     these comments are not applicable. The                 HME credentialing requirements are
                                        that an effective and reliable biometric                escorting requirements (as clarified                   equal to TWIC, and HME holders are
                                        check is sufficient to verify identity at               elsewhere in this final rule) for those                allowed to transport CDCs, a TWIC
                                        all MARSEC levels and did not agree                     areas open to passengers within cruise                 holder would not pose a greater security
                                        that the additional measures of using                   ship facilities should be identical to                 risk than an HME holder. Therefore, the
                                        PIN numbers is necessary. The                           what these facility owners/operators are               commenter argued that no additional
                                        commenter also noted that most                          already doing under the existing                       restrictions need to be placed on CDC
                                        individuals will not remember their PIN                 requirements found in §§ 105.275 and                   facilities regarding unescorted access by
                                        number, thus causing unforeseen                         105.290.                                               TWIC holders. The commenter also
                                        problems and necessary back-up                             Another commenter argued that the                   asked: ‘‘In the case that a CDC facility
                                        measures.                                               regulations should allow cruise ship                   is a separate location on port real estate
                                           Many of these comments are no                        terminal operators to establish                        (e.g., truck yard close to marine
                                        longer applicable, as the final rule does               ‘‘passenger access areas’’ within the                  terminals), and it does not fall under the
                                        not include the requirements for readers                terminal, which would be a defined                     security regulations of Part 105 because
                                        and biometric verification. We will keep                space within the access control area of                it is not a secure maritime facility, what
                                        them in mind as we draft the NPRM to                    the terminal that is open to passengers                will be the TWIC verification
                                        re-propose reader requirements.                         but does not require a TWIC for                        requirements at that CDC facility, if
                                           The comment on the PIN number,                       unescorted access.                                     any?’’
                                        however, is still relevant. The cards that                 We disagree with this comment. The                     We agree; under the final rule, all
                                        will be issued initially and used as a                  passenger access area was designed for                 HME holders will be required to obtain
                                        visual identity badge will hold the                     use by vessels only. Cruise ship                       a TWIC if they need unescorted access
                                        biometric template on a dual interface                  terminals should be able to use the                    to a MTSA regulated facility. Thus,
                                        chip. The Coast Guard intends to                        security measures implemented to meet                  since all HME holders on a CDC facility
                                        integrate the TWIC requirements into its                the requirements in § 105.290 to meet                  would also likely be TWIC holders, they
                                        existing facility and vessel annual                     the definition of ‘‘escorting,’’ therefore,            would necessarily be treated the same as
                                        MTSA compliance exams, as well as                       we do not think it is necessary to extend              other TWIC holders. In answer to the
                                        through unannounced security spot                       the concept of passenger access areas to               commenter’s question, TWIC
                                        checks using hand-held readers. We will                 cruise ship terminals.                                 requirements only apply to facilities
                                        monitor issues with PINs during the                     14. Additional Requirements—Certain                    regulated under 33 CFR part 105. Thus,
                                        Coast Guard checks, and if problems are                 Dangerous Cargo (CDC) Facilities
                                                                                                                                                       if a facility is not regulated by part 105,
                                        identified, we will address them in the                                                                        either because it is not a maritime
                                        NPRM re-proposing the access control                      Section 105.295 proposed making a                    transportation facility or any other
                                        and reader requirements.                                change to clarify that persons not                     reason, then the TWIC provisions would
                                                                                                holding TWICs must be escorted within                  not apply.
                                        13. Additional Requirements—Cruise                      CDC facilities. All of the commenters on
                                        Ship Terminals                                          this section stated that this change will              15. Additional Requirements—Barge
                                          Proposed § 105.290 identified which                   be very burdensome for CDC facilities.                 Fleeting Facilities
                                        activities must be done within the                      Several commenters said that any                          Under proposed § 105.296, owners/
                                        facility’s secure area, to clarify the                  additional necessary measures can be                   operators of barge fleeting facilities
                                        identifications to be checked before                    dealt with through the existing                        would take responsibility for ensuring
                                        granting individuals entry to the facility,             regulatory regime. One commenter said                  that anyone seeking unescorted access
                                        and to clarify that passengers must be                  any changes should be made on the                      to barges within the fleeting facility
                                        escorted within secure and restricted                   basis of a vulnerability assessment.                   hold a TWIC. All of the commenters
                                        areas of the facility. One commenter                    Some commenters argued that each FSO                   stated that the additional regulations for
                                        stated that this would require changes                  should decide whether more stringent                   conducting access control checks are
                                        difficult to incorporate using an                       TWIC program requirements should be                    not practical for this industry. Most of
                                        addendum and would require the full                     implemented. Another commenter said                    the commenters claimed that these
                                        FSP to be rewritten. Also, the                          that any additional security measures                  requirements are unnecessary for small
                                        commenter noted that it is unclear in                   should be left to the discretion of the                facilities and crews, such as those at
                                        the proposed rule if ‘‘passenger access                 owner, subject to oversight by the Coast               barge fleeting facilities. One commenter
                                        areas’’ are considered ‘‘secure areas,’’                Guard through the security plan review                 requested that owners/operators of barge
                                        since they would be inside the terminals                and approval process.                                  fleeting facilities take responsibility for
                                        access control area. The commenter                        We disagree with these comments.                     ensuring that anyone seeking access has
                                        recommended that the regulations be                     Leaving the TWIC requirements in the                   a TWIC. One commenter requested that
                                        written to allow unescorted passenger                   hands of individual owners/operators,                  the proposed rule accommodate
                                        access once passengers have passed                      without first providing standards,                     facilities that have plans that allow for
                                        through the passenger screening                         would create serious security flaws in                 use of the card readers at the facility and
                                        locations. One port authority                           the TWIC system. However, we are                       not on every one of the vessels. One
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                                        recommended that cruise ship terminal                   sympathetic to the concerns raised over                commenter said that the change in the
                                        operators be allowed to establish                       escorting. As explained elsewhere in                   rulemaking to require a TWIC for
                                        passenger access areas within the                       this final rule, we did not intend to                  anybody to access a fleeted barge will
                                        terminal, similar to cruise ships. The                  require a side-by-side escort at all times             effectively raise the competitive pricing
                                        port authority recommended that this be                 in all places. So long as the places to be             for certain services, including

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                                        3542             Federal Register / Vol. 72, No. 16 / Thursday, January 25, 2007 / Rules and Regulations

                                        carpenters, electricians, contracted                    commenter points out the contradictory                 (d). Location of the Current 46 CFR
                                        painters, fencing companies, etc.                       requirements between § 1572.9 (e) and                  10.113 in the Proposed Rule
                                          Because this final rule does not                      the preamble text. The preamble implies                   One commenter is confused over
                                        include reader requirements, we will                    that TSA will notify the employer only                 where the current 46 CFR 10.113 will be
                                        not, at this time, be responding to the                 of the employee’s disqualification                     published in the new regulation.
                                        comments that addressed reader usage                    without releasing the reason for that                     Section 10.113 is part of the TWIC
                                        and/or requirements. We will, however,                  disqualification. The commenter                        regulation, and will publish at that cite.
                                        keep them in mind for our future                        suggests that TSA include this wording                 It did not exist prior to this final rule,
                                        rulemaking to implement reader                          in § 1572.9 (e) in order to protect the                and is a new addition to part 10 along
                                        requirements.                                           privacy of the employee. Another                       with a similar addition to part 12 at
                                          This final rule does still require that               commenter wrote in to support the                      § 12.02–11. When the Coast Guard’s
                                        barge fleeting facilities ‘‘control access              implementation of this provision.                      ‘‘Consolidation of Merchant Mariner
                                        to the barges once tied to the fleeting                   Consistent with the requirements of                  Qualification Credentials’’ rulemaking is
                                        area by implementing TWIC as                            the statute, TSA has no intention of                   finalized, it will be removed due to
                                        described in § 105.255 of this part.’’                  providing information to an employer as                redundancy.
                                        Section 105.255 requires that TWIC be                   to why an applicant is disqualified.
                                        used a visual identity badge. We do not                 However, if TSA has reliable                           (e). Lack of Contingency Plan in Case of
                                        believe that this should impose an                      information concerning an imminent                     Disasters
                                        impracticable burden on the fleeting                    threat posed by an applicant and                         One commenter demanded that there
                                        facilities, as they were already required               providing limited threat information to                be a contingency plan created for those
                                        to check identification of persons under                an employer, facility or vessel operator,              times when a natural disaster or
                                        the pre-existing MTSA regulations.                      or COTP would minimize the risk to the                 emergency arise. When this happens,
                                        16. Miscellaneous                                       facility, vessel, port, or individuals, TSA            there may be a need to hire new
                                                                                                would provide such information. We                     maritime workers in a very short period
                                        (a). Compliance of TWIC With                            have amended paragraph (e) to clarify                  of time to avoid disruption to the
                                        International Labour Organization (ILO)                 this.                                                  shipping industry and what it provides
                                        185                                                                                                            to the community.
                                                                                                (c). Requirement of 46 U.S.C.
                                           Five commenters request that TWIC                    70105(b)(2)(D)                                           We appreciate the concern shown by
                                        also comply with ILO 185. Two of these                                                                         the commenter, but are not prepared, at
                                        also want TWIC to be accepted as an                        One commenter wants to know                         this time, to write such provisions into
                                        international seafarer identification                   whether the provisions in 46 U.S.C.                    the regulation. We do note, however,
                                        document. Three of them remarked that                   70105(b)(2)(D) were inadvertently left                 that 33 subchapter H includes
                                        the TWIC must be compatible with the                    out of the proposed rule or whether they               procedures for obtaining approval for
                                        ILO 185 in order for the document to be                 are no longer necessary.                               both waivers and equivalent security
                                        accepted in foreign ports of call. One                     At this time, the Coast Guard has                   measures (see §§ 101.130, 104.130,
                                        commenter encouraged the Coast Guard                    implemented the requirements in 46                     105.130, 106.125). In the absence of any
                                        and Transport Canada to enter into a bi-                U.S.C. 70105(b)(2)(C) and (D) as follows.              specific contingency plan provisions,
                                        national agreement or MOU to recognize                  In this rulemaking, the requirement for                we believe that the waiver and
                                        each nation’s secured credentials for                   all Coast Guard credentialed merchant                  equivalent provisions may be used to
                                        their respective seafarers (the TWIC for                mariners to hold a TWIC includes all                   hire new personnel and allow them to
                                        U.S. seafarers and the proposed                         vessel pilots holding a Coast Guard-                   work in a short time span. Additionally,
                                        Seafarer’s Identity Document (SID) for                  issued license. We have not extended                   Coast Guard is able to respond quickly
                                        Canadian seafarers). The commenter                      this requirement to address the issue of               in these situations and suspend any
                                        stated that mutual recognition of these                 non-Federal pilots (those few pilots                   provisions that might disrupt the
                                        documents as equivalent would                           holding only state commissions or                      shipping industry in the wake of a
                                        streamline vessel and marine facility                   credentials, who do not also hold a                    natural disaster.
                                        access control procedures and promote                   federally-issued merchant mariner
                                                                                                credential). Also in this rulemaking, we               (f). Duplication of Applications and
                                        easier access to shore leave for seafarers
                                                                                                included a requirement that all                        Background Checks for Merchant
                                        as per the ISPS Code.
                                                                                                individuals seeking unescorted access to               Mariners
                                           As the United States is not signatory
                                        to the ILO Seafarers’ Identity Document                 secure areas of 33 CFR subchapter H                      One commenter supports the MTSA
                                        Convention (Revised), 2003 (ILO–185),                   regulated vessels must have a TWIC.                    and the need for transportation workers
                                        no plans have been made at this time to                 This population includes all individuals               to have an identification credential.
                                        recognize the SID as a TWIC equivalent                  working aboard Subchapter H regulated                  This commenter also said these
                                        or produce an identification document                   towing vessels that push, pull or haul                 requirements should not be applied to
                                        complying with that particular standard.                alongside tank vessels. We have not,                   American merchant mariners because of
                                                                                                however, extended this requirement to                  the extensive application process that
                                        (b). Notification of Employer Upon                      address the issue of all individuals                   merchant mariners currently undergo to
                                        Employee Disqualification                               working aboard non-Subchapter H                        obtain a MMD. American merchant
                                          Section 1572.9 (e) states that the                    regulated towing vessels that push, pull               mariners should be exempt from
                                        applicant must certify the following                    or haul alongside tank vessels (towing                 obtaining a TWIC if they possess a valid
                                        statement in writing: ‘‘I acknowledge                   vessels less than or equal to eight meters             MMD and, in the future, a valid MMC.
                                        that if the Transportation Security                     in registered length and some larger                   The MMD or MMC should serve as a
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                                        Administration determines that I pose a                 towing vessels that meet the exemptions                federal identification credential.
                                        security threat, my employer, as listed                 listed in 33 CFR 104.105). The                           We sympathize with the commenter,
                                        on this application, may be notified.’’                 requirements of 46 U.S.C. 70105(b)(2)(C)               however 46 U.S.C 70105(b)(2)(B) clearly
                                        TSA specifically invited comments on                    and (D) will be further addressed in a                 requires that U.S. mariners issued an
                                        this specific requirement. One                          future notice and comment rulemaking.                  MMD (as well as any other Coast Guard-

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                                                         Federal Register / Vol. 72, No. 16 / Thursday, January 25, 2007 / Rules and Regulations                                            3543

                                        issued credential) obtain a TWIC. We                    information that will appear on an MMC                 steps an applicant must take if an
                                        recognized the duplication of effort that               on the face of the TWIC. We will,                      appeal or waiver is warranted.
                                        this might impose upon mariners, and                    however, continue to explore options to
                                                                                                                                                       (j). Interpretation of TWIC Requirements
                                        as a result the Coast Guard has proposed                allow for further consolidation between
                                        consolidating its various credentials,                  the two programs.                                         One commenter urged interpretations
                                        and is working with TSA to ensure that                                                                         to be centralized at Coast Guard
                                                                                                (h). Union Involvement                                 Headquarters and disseminated to Coast
                                        as much information as possible will be
                                        shared between the two agencies,                           One commenter supported the                         Guard field offices. The commenter
                                        allowing mariners to apply for all of                   program but urged that the rights of                   argued that COTPs should not be able to
                                        their required credentials after one visit              workers be preserved. The commenter                    make individual interpretations and
                                        to a TWIC enrollment center.                            was concerned that the program would                   determinations of the rules, and added
                                        Additionally, the Coast Guard will not                  restrict the civil rights of an employee               that this problem arose during MTSA
                                        be duplicating the security threat                      to engage in collective and union                      implementation and led to inconsistent
                                        assessment; rather we will accept the                   activities and stated that wording                     and inaccurate interpretations.
                                        TWIC as proof that the individual has                   should be incorporated into the rule to                   As stated elsewhere in this final rule,
                                        been vetted for identification and                      afford these liberties to all workers.                 the Coast Guard intends to implement a
                                        security purposes. The Coast Guard                         Nothing in either the NPRM or this                  robust guidance document to its field
                                        inquiry will be limited to determining                  final rule should be construed as having               offices, in order to avoid inconsistent
                                        questions of safety and suitability. For                an effect on an employee’s rights to                   application of the regulatory
                                        more information on this effort, please                 collectively form or join a union. It is               requirements.
                                        see the Coast Guard’s SNPRM entitled                    unnecessary to add anything to the
                                                                                                regulation stating this explicitly.                    (k). Reporting of Incidents That May
                                        ‘‘Consolidation of Merchant Mariner                                                                            Result in a Transportation Security
                                        Qualification Credentials’’ published                   (i). Written Request of Releasable                     Incident
                                        elsewhere in today’s Federal Register.                  Material Upon Initial Determination of
                                                                                                                                                          33 CFR 101.305(a) states that
                                        (g). Comments on Merchant Mariners                      Disqualification
                                                                                                                                                       activities that may result in a
                                           One commenter stated the large                          The NPRM states that if an applicant                transportation security incident are
                                        uncredentialed portion of the workforce                 wishes to receive copies of the                        required to be reported by the owner/
                                        (e.g., towing vessels) needs to be                      releasable material upon which the                     operator to the National Response
                                        identified and stabilized with                          Initial Determination was based, he                    Center (NRC). One commenter wanted
                                        immediate, adequate, and recorded                       must serve TSA with a written request                  this language to be amended to require
                                        safety and vocational training.                         within 60 days after the date of service               reports to NRC for incidents that may
                                           We agree with the concept that all                   of the Initial Determination. One                      ‘‘reasonably’’ be expected to result in a
                                        mariners, both credentialed and non-                    commenter wanted TSA to                                TSI. The commenter wants some
                                        credentialed, benefit from safety and                   automatically provide this information                 clarification here to alleviate
                                        vocational training. Although this                      to the employee at the time of the                     unnecessary and nonproductive
                                        comment is outside the scope of the                     determination for several reasons: (1)                 reporting requirements.
                                        TWIC regulations, which focus on                        Employees may be denied employment                        We disagree with the suggested
                                        identification and security, we note that               during this process and writing a                      amendment. The NPRM did not include
                                        existing regulations found in Title 46 of               request and processing that request will               a proposed revision to § 101.305(a), and
                                        the CFR are in place to address these                   delay possible employment; (2)                         no change has been included in the final
                                        important issues.                                       requiring employees to request this                    rule. Experience over the past three
                                           One commenter expressed the view                     information unduly burdens them                        years indicates that the language of this
                                        that Congress should reorganize the                     (paperwork burden issue); (3) many                     section is not leading to any
                                        government to remove the                                employees will not have legal counsel                  ‘‘unnecessary and nonproductive’’
                                        superintendence of the U.S. Merchant                    and may not realize that they must make                reports to the NRC.
                                        Marine from the Coast Guard and return                  a special request for the information;
                                                                                                and (4) by law, all appellants would be                (l). Suggested Corrections To 33 CFR
                                        it to the U.S. Department of
                                                                                                entitled to review the releasable                      101.515
                                        Transportation as a new agency.
                                           Congressional reorganization of the                  material, and furthermore, this                           One commenter requested three
                                        U.S. Government is outside the scope of                 information is directly relevant to their              corrections/clarifications to § 101.515.
                                        this regulation.                                        appeal.                                                First, to conform the personal
                                           Another commenter would like to                         TSA provides applicants who receive                 identification requirements in
                                        know why the TWIC card cannot be                        an Initial Determination of Threat                     § 101.515(a) with those in § 125.09, as
                                        ‘‘smart’’ enough to be used as the                      Assessment with the reason they do not                 set forth in the Coast Guard Notice,
                                        qualification and identification                        meet the security threat assessment                    ‘‘Maritime Identification Credentials’’
                                        credential.                                             standards in the initial determination                 that was published on April 28, 2006
                                           We sympathize with this comment,                     itself. The package that is mailed to the              (71 FR 25066), to be consistent as to
                                        and examined the possibility of                         applicant includes the reason for the                  what identification is required to access
                                        combining the qualifications onto the                   initial determination and information                  a part 105 facility. Second, in
                                        TWIC. Unfortunately, it is not feasible at              on how the applicant can appeal the                    § 101.515(b), the reference to § (b)(4)
                                        this time to have all of the qualifications             determination. Therefore, in most cases                should be to (a)(4). Third, clarify in
                                        listed on the face of the TWIC. STCW                    the applicant will not need to request                 § 101.515(c) that the facility has the
                                        requires foreign port state control                     additional releasable information from                 right to escort law enforcement
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                                        officers to be able to read a mariner’s                 TSA. TSA has prepared the information                  personnel for safety reasons and that
                                        qualification credentials, and not all                  explaining the appeal and waiver                       such access does not imply unescorted
                                        countries have the ability to read smart                process with applicants who are not                    access.
                                        cards. It is impractical, and for some                  represented by counsel in mind. The                       We have looked at the three
                                        may be impossible, to print all of the                  documents clearly and simply state the                 suggestions, but have determined that

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                                        3544             Federal Register / Vol. 72, No. 16 / Thursday, January 25, 2007 / Rules and Regulations

                                        none of them are appropriate for action                 applications and information related to                test many parts of the proposed system,
                                        at this time. The second suggestion is                  the standards in this rule.                            including the readers and
                                        not necessary, as the correct cross-                                                                           communications with a central
                                                                                                (p). Accepted Cargo in Light of TWIC
                                        reference is already listed. The first                                                                         database. Some raised questions about a
                                        suggestion is not appropriate as the                       One commenter assessed their                        central database. They questioned
                                        referenced Notice was intended as an                    business practices as a result of the                  whether the systems will be compatible
                                        interim security measure until TWIC                     implementation of TWIC and decided                     with existing systems and stated that if
                                        could be implemented. We expect that,                   they would no longer move CDCs. They                   not, the costs of replacement will be
                                        with implementation of this final rule,                 also said they would be forced to                      high. Commenters stated that TSA must
                                        the Coast Guard will be able to                         abandon their VSPs. The commenter is                   test the proposed system before
                                        announce that it will no longer be                      worried that other companies may do                    requiring its use to ensure that it will
                                        enforcing the provisions of 33 CFR part                 the same and not move these types of                   work in the marine environment and
                                        125, as described in the referenced                     commodities. This would greatly hinder                 that backup systems will function as
                                        Notice. Finally, the third suggestion is                our economy and is not the intended                    well. They assert that TSA does not
                                        not appropriate, as there may be times                  effect of TWIC.                                        appear to have addressed issues related
                                        when requiring an escort would delay                       TSA and the Coast Guard have                        to system failures and power outages. In
                                        law enforcement officials, which is                     removed the card reader requirements                   terms of interconnectivity, they stated
                                        explicitly not allowed in § 101.515.                    from this final rule to reduce the                     that the system has to be shown capable
                                                                                                potential burden on small businesses                   of processing 700,000 TWIC
                                        (m). Accredited Providers                               until such time as we can review                       instantaneously. Commenters also noted
                                          One commenter wants DHS to explain                    additional technology and complete                     that the system does not appear to have
                                        the qualifying process a contractor must                additional evaluation of the costs and                 been tested with passenger vessels.
                                        pass in order to be accredited. Since this              benefits of reader requirements. Further                  As stated in the previous discussion
                                        was not in the NPRM, the commenter                      details of the economic impacts of this                on Coast Guard’s provisions, the final
                                        would like the opportunity to comment                   final rule, including the costs imposed                rule will not require the owner/operator
                                        on this information once it is published.               and the benefits gained, are identified in             implementation of access control
                                          The enrollment provider must adhere                   the accompanying Final Assessment.                     infrastructure, including readers. A
                                        to all applicable laws, such as the                     (q). Interim Rules vs. Final Rules                     notice of proposed rulemaking will
                                        Privacy Act of 1974 (5 U.S.C. 552a) and                                                                        follow this final rule that will address
                                        the Federal Information Security                           One commenter wants the Coast                       the use of access control readers for the
                                        Management Act (44 U.S.C. 3541 et seq.,                 Guard to address whether or not this                   TWIC program. Also, we must note that
                                        Title III of the E-Government Act of                    rule will be published as a final rule as              the TWIC program will not require
                                        2002, Pub. L. 107–347) to protect the                   it incorporates, modifies, or updates                  continual interface with a ‘central
                                        personal information that is collected                  regulations from the past that have                    database’ as implied in the comments.
                                        and stored in the TSA System. In                        never been published as a final rule.                     The implementation of the TWIC
                                                                                                   This comment relates to interim final               program is different from Prototype in
                                        addition, all TWIC contractor employees
                                                                                                rules that the Coast Guard previously                  that TSA will not be involved with the
                                        who will have access to DHS sensitive
                                                                                                issued affecting STCW, licensing, and                  port facility infrastructures and other
                                        information must have favorably
                                                                                                MMD regulations. The TWIC and MMC                      ‘‘systems’’ referenced in these
                                        adjudicated background investigations
                                                                                                projects are not intended to serve as the              comments. Prototype created a testing
                                        commensurate with the sensitivity level
                                                                                                final rules for those projects. At the                 environment for the credential that
                                        of the position held. The contractor
                                                                                                completion of both TWIC and MMC, the                   included Physical Access Control
                                        must also maintain an IT Security
                                                                                                Coast Guard intends to publish                         System (PACS) readers. The testing
                                        Program where DHS data is stored or
                                                                                                additional final rules addressing the                  environment for Prototype included
                                        processed on contractor-owned
                                                                                                comments received on the                               various environments and
                                        information systems.
                                                                                                aforementioned interim rules, and make                 transportation modes, including marine
                                        (n). Preamble Items Not Inserted Into the               any necessary changes.                                 locations.
                                        Rule                                                                                                              Commenters also questioned TSA’s
                                                                                                (r). NVIC
                                           Three commenters complained that                                                                            assumption that the cards have a 5-year
                                                                                                   One commenter extended an offer to                  life cycle; the South Carolina State Port
                                        there were many requirements/issues
                                                                                                work with the Coast Guard in the                       Authority said its experience indicated
                                        mentioned in the preamble that were
                                                                                                development of an NVIC.                                that cards do not last more than a year,
                                        not incorporated in the rule. However,                     We appreciate the offer. We anticipate
                                        no specific examples were given. In                                                                            which if true, would increase costs.
                                                                                                issuing a NVIC very soon. We also                         TSA believes the 5-year longevity of
                                        light of this fact, we are unable to                    anticipate contacting many of our
                                        respond to this comment.                                                                                       the TWIC is reasonable. There is very
                                                                                                industry partners and engaging in as                   little data to permit a comparison of the
                                        (o). Additional Uses of the TWIC                        much industry consultation as possible                 credential referenced by the South
                                           Two commenters would like to know                    prior to issuing a second NPRM                         Carolina State Port Authority to the
                                        if the TWIC card can be used for other                  proposing reader requirements.                         durability of the TWIC. TSA will
                                        commercial purposes not related to                      C. TSA Provisions                                      monitor card failures as the program is
                                        security. Specifically, one commenter                                                                          implemented and make changes to the
                                        would like to know if the TWIC card                     1. Technology Concerns                                 credentialing system as needed.
                                        could be used as a payroll spreadsheet.                    TSA received a substantial number of                   Many commenters questioned the
                                           TWIC is designed to be used a tool for               comments on technology issues, almost                  appropriateness of the FIPS 201–1
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                                        securing access control; however it is                  all of which expressed concern about                   standard referenced in the NPRM and
                                        possible that it might be used for other                the feasibility and appropriateness of                 contact technology. They noted that it
                                        purposes as well. The rule does not                     the proposal for reading the TWIC cards                was developed for granting access to
                                        prevent alternate uses of the credential,               and verifying information. Commenters                  federal facilities and computer systems,
                                        as long as they do not interfere with the               asserted that the TSA Prototype did not                not for granting access to ports and

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                                                         Federal Register / Vol. 72, No. 16 / Thursday, January 25, 2007 / Rules and Regulations                                          3545

                                        marine facilities. They stated that it is               recommended that TSA adopt the                         implement the REAL ID requirements
                                        slower, prone to errors, less reliable, and             documents listed as acceptable for                     and will likely result in a change in the
                                        more susceptible to sabotage than                       identification purposes on U.S.                        accepted document list for TWIC once
                                        contactless readers and cards. They                     Citizenship and Immigration Services                   the REAL ID regulations are
                                        noted that it has not been implemented                  (USCIS) Form I–9 ‘‘Employment                          implemented.
                                        at federal facilities yet. One commenter                Eligibility Verification’’ as acceptable                  For all mariners, the enrollment
                                        noted that smart cards can be copied.                   documents to verify identity for TWIC                  section now provides that merchant
                                           DHS agrees that there are a number of                purposes. Other commenters asserted                    mariners must bring the documents that
                                        challenges including biometric                          that the documents listed on the current               the Coast Guard requires in 46 CFR
                                        authentication, privacy controls, and                   Form I–9 are subject to fraud.                         chapter I, subchapter B to verify
                                        security features. Therefore, we have                      TSA notes that the Form I–9 and its                 citizenship and alien status. The proof
                                        established the NMSAC working group                     associated requirements are to verify                  of citizenship requirements are
                                        to recommend a contactless biometric                    that an individual is authorized under                 currently contained in 46 CFR 10.201
                                        specification for the TWIC program. In                  applicable immigration laws to work in                 for licenses and CORs, and 12.02.13 for
                                        addition, when developing the card                      the United States. The types of                        MMDs. The Coast Guard has proposed
                                        reader requirements, we will consider                   documents acceptable for a person to                   changing these citizenship requirements
                                        all of these concerns and implement a                   demonstrate his or her authorization to                as discussed in the MMC SNPRM
                                        system that effectively serves a                        work may not in all instances be                       published elsewhere in today’s Federal
                                        commercial environment.                                 acceptable for TSA to verify identity for              Register. We are requiring that mariners
                                           A number of commenters noted that                    purposes of granting a credential that                 bring these documents to the TWIC
                                        communications between vessels and a                    will allow the person access to a secure               enrollment center because they must be
                                        central database were uncertain and that                facility. If TSA believes that there is a              scanned into the enrollment record so
                                        some vessels do not have computers.                     significant risk that a type of document               that the Coast Guard has them available
                                        They also noted that for some port                      offered to verify a person’s identity may              to review when reviewing the merchant
                                        facilities, locating the reader to handle               be susceptible to fraud, we will not                   mariner’s record to renew or obtain an
                                        arriving vessels can be problematic.                    include that type of document in our list              MMC.
                                        Vessel operators stated that it is not                  of identity verification documents for
                                                                                                TWIC. As discussed above, the list of                  (b). Where Enrollment Should Begin
                                        feasible to install readers on many
                                        vessels.                                                documents for identity verification for                  A few commenters opposed
                                           Neither the NPRM nor this final rule                 TWIC will be posted on the TWIC Web                    implementation at the largest ports until
                                        discusses communications with a                         site and will initially include the                    the TWIC program has been tested in
                                        ‘‘central database.’’ The final rule does               documents accepted by TSA for persons                  other areas first, to minimize adverse
                                        not require owner/operator                              applying for HMEs. DHS and other                       impacts on the national economy.
                                        implementation of access control                        agencies within the federal government,                  To mitigate security threats at the
                                        infrastructure, including readers. A                    however, continue to review identity                   ports, TSA and the Coast Guard have
                                        subsequent notice of proposed                           documents to ascertain that those which                developed a phased deployment for the
                                        rulemaking will follow that will address                are most susceptible to forgery, fraud, or             TWIC program over an 18-month
                                        the use of access control readers for the               duplication are not used, among other                  period. The deployment of TWIC
                                        TWIC program.                                           things, to obtain government security                  enrollment centers will start with a
                                           Commenters questioned whether the                    credentials. TSA may change the list of                small number of ports, and ports will be
                                        reader technology required is                           acceptable documents in the future                     added over time across the TWIC
                                        ‘‘intrinsically safe,’’ as is required for              consistent with that review.                           population centers. The scheduling of
                                                                                                   In addition, the REAL ID Act of 2005,               the deployment by TSA and the Coast
                                        facilities handling some hazmat.
                                                                                                Pub. L. 109–13, 119 Stat. 312 (May 11,                 Guard is based on the Coast Guard’s list
                                           All of the reader requirements have
                                                                                                2005), requires implementation of                      of ports, ranked by size and criticality.
                                        been removed from this final rule,
                                                                                                minimum document requirements and                      The deployment schedule will be
                                        therefore we do not need to address this
                                                                                                issuance standards for State-issued                    closely coordinated with the COTP in
                                        comment at this time. We will, however,
                                                                                                driver’s licenses intended for use for                 the various regions.
                                        keep it in mind for our subsequent
                                                                                                official federal purposes. The REAL ID
                                        rulemaking on reader requirements, and                                                                         (c). Other Timing Issues
                                                                                                Act requires that, effective May 11,
                                        the Coast Guard and TSA will work to                    2008, a State that participates in REAL                   Some commenters thought that the
                                        ensure that new equipment will satisfy                  ID will adopt certain minimum                          schedule for implementing the program
                                        the applicable safety requirements.                     standards to: (1) Authenticate                         within 18 months is unrealistic. Others
                                        Furthermore, there should be no                         documents produced by applicants to                    urged TSA to extend the
                                        material impact on logistics or                         prove identity and lawful status in the                implementation period to allow testing
                                        productivity based on the change from                   U.S., (2) ensure the integrity of the                  of biometric readers or to allow the
                                        the NPRM. Vessels, facilities, and OCS                  information that appears on driver’s                   Coast Guard to redesign its MMC to
                                        facilities subject to this final rule                   licenses and identification cards, and (3)             incorporate TWIC security features.
                                        already check individuals’ identification               prevent tampering, counterfeiting or                      We believe the 18-month timetable for
                                        credentials. This rule, therefore, should               duplication of such cards for a                        conducting the initial enrollment is
                                        not introduce new requirements that                     fraudulent purpose. Under the REAL ID                  realistic. If unforeseen events delay
                                        would impact logistics or productivity.                 Act, DHS is authorized to promulgate                   completion of the initial enrollment, we
                                        2. Enrollment Issues                                    regulations to determine whether States                will adjust the schedule accordingly and
                                                                                                driver’s license standards are in                      notify all affected workers and owners/
                                        (a). Documents To Verify Identity
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                                                                                                compliance with the REAL ID Act.                       operators.
                                          Commenters have asked what                               The standards for documents                            One commenter believed that the 5-
                                        information an applicant must provide                   accepted for identity verification for                 year TWIC renewals should be
                                        in order to verify identity when                        TWIC purposes would necessarily be                     staggered. Another commenter
                                        applying for a TWIC. Some commenters                    affected by any regulations issued to                  suggested that the TWIC should be

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                                        3546             Federal Register / Vol. 72, No. 16 / Thursday, January 25, 2007 / Rules and Regulations

                                        considered good, even if expired, based                 centers in highly industrialized areas                 (e). Picking Up Credentials at an
                                        on receipt by TSA of a valid application                would not be adequate, and some                        Alternate Center
                                        or renewal. Others supported the 180-                   named specific locations, such as                         Several commenters supported the
                                        day window for renewals for mariners,                   Oakland, California and Paducah,                       idea of allowing applicants to pick up
                                        but asked whether the same window                       Kentucky that need centers. Others                     their credential at an alternate location.
                                        would apply to non-mariners employed                    thought there was a need for centers at                Some noted that mariners aboard a
                                        on covered vessels. The phased                          ports in Alaska, such as Juneau; at out-               vessel may not be able to return readily
                                        deployment of enrollment centers will                   of-the-way places such as Kodiak and                   to the same enrollment center.
                                        result in staggered TWIC enrollment.                    Dutch Harbor, Alaska and the U.S.                         TSA appreciates the commenter’s
                                        The deployment approach will spread                     Territory of Guam; and at locations                    suggestion, but under the current
                                        out the enrollment population to                        outside the United States for mariners                 implementation plan, the system cannot
                                        different geographic locations as the                   on job assignments overseas. A                         be altered to accommodate retrieving
                                        deployment progresses across the                        commenter asked about renewals for                     credentials from an alternate location.
                                        maritime sector. All affected workers                   individuals who are residing overseas                  TSA is working to include this kind of
                                        should plan for renewals based on their                 and do not have ready access to an                     option in the future. For now, aside
                                        respective schedules and locations. The                 enrollment center.                                     from the software design issue, TSA
                                        NPRM specifically mentioned a 6-
                                                                                                  We agree and, where applicable, we                   believes that without further analysis or
                                        month period for mariners because they
                                                                                                may use mobile enrollment centers for                  testing, this process may unreasonably
                                        must complete the check for the
                                                                                                the phased enrollment approach. Based                  complicate the accountability and
                                        mariner’s license, which is time-
                                        consuming, following the threat                         on commenters’ input, Juneau and                       shipment of the cards from the
                                        assessment for TWIC.                                    Guam have been added as ports that                     production facility. If an applicant
                                           Some officials from the State of                     will be covered. The Port of Oakland is                cannot retrieve the credential shortly
                                        Florida suggested that the Florida                      on the list. The area of Paducah is a 3–               after being notified that it is ready, the
                                        identification cards currently in use                   5 hour drive from centers located in St.               enrollment center will hold the card
                                        could be replaced with the TWICs as the                 Louis, Chattanooga, Nashville,                         until the applicant returns to pick up
                                        Florida cards expire. State-issued                      Louisville and Memphis. These areas, as                the credential.
                                        identification cards will not be                        well as others mentioned in Alaska, will               (f). Other Ways To Ease the Process
                                        considered comparable to or                             be reviewed during the implementation.
                                        interchangeable with TWIC, and                          The number and location of enrollment                     A few commenters believed that
                                        therefore, the commenter’s suggestion                   centers will balance the need for                      facilities and employers should be
                                        cannot be accepted.                                     convenience with the cost of additional                allowed to capture all applicant
                                           Others asked how the scheduling                      enrollment centers to avoid increasing                 information, including the biometrics,
                                        system would interact with ports and                    the financial burden on applicants.                    and activate the credentials. Some
                                        port enrollment personnel, and urged                                                                           suggested that the CSO could activate
                                                                                                  A few commenters noted that centers                  TWICs on behalf of the enrollment
                                        TSA to give consideration to current                    should be readily accessible to trucks
                                        workers to minimize disruption to                                                                              centers. One commenter suggested using
                                                                                                and that centers should be kept open                   a passport, which includes a specific
                                        commerce.                                               around-the-clock if that is where
                                           TSA and the Coast Guard will work                                                                           check for identity by the issuing office,
                                                                                                workers would go to reset their PIN.                   in place of the TWIC. Two commenters
                                        closely with the COTPs and industry to
                                                                                                One commenter recommended that the                     asked how enrollment will be
                                        ensure that all affected employers and
                                                                                                procedures for changing a PIN be                       accomplished for mariners abroad and
                                        workers know when enrollment will
                                                                                                clarified. Several commenters suggested                whether U.S. consulates could play a
                                        begin at the nearest location. Much of
                                                                                                making use of existing facilities, such as             role.
                                        the enrollment information for TWIC,
                                                                                                offices of CBP, motor vehicle offices,                    Based on industry comments received
                                        including some scheduling items, will
                                                                                                law enforcement offices, post offices,                 during Prototype, we do not require
                                        be available on-line. We will publish
                                                                                                Coast Guard RECs, sector command                       individual companies to act as sponsors
                                        Notices in the Federal Register as the
                                                                                                centers, and enrollment centers used for               and assist in the enrollment process. In
                                        enrollment schedule unfolds, so that all
                                                                                                the Florida identification card.                       addition, given the economies of scale,
                                        affected workers, including individuals
                                                                                                Commenters also encouraged the use of                  the cost of enrollment is lower by using
                                        who do not work regularly on a vessel
                                                                                                mobile centers that could visit ports and              one contractor. It is also important to
                                        or maritime facility, can determine
                                                                                                major facilities and could return more                 maintain consistency in procedures
                                        when he or she should enroll and where
                                                                                                than once so that applicants could use                 across the country and ensure that only
                                        to complete enrollment. All applicants
                                                                                                the mobile center again.                               Trusted Agents who are adequately
                                        are encouraged to pre-enroll on-line and
                                        schedule an appointment at the                            We agree and, as stated above, will                  trained conduct enrollment and card
                                        enrollment center to complete                           use mobile enrollment centers where                    activation.
                                        enrollment. In addition, owners/                        appropriate for the phased-in                             We do not agree that a passport is a
                                        operators must give 60 days notice to                   enrollment approach. TSA also agrees                   good alternative to TWIC. TWIC is a
                                        employees to provide employees with                     that alternate hours of operation at                   biometric credential with multiple
                                        adequate notice to schedule TWIC                        enrollment centers will reduce the                     security, identification, and
                                        enrollment during the initial enrollment                burden placed on TWIC users.                           authentication features; a passport does
                                        roll out.                                               Enrollment center hours of operation                   not contain many of these features, such
                                                                                                will balance the need for convenience                  as a biometric, which are required by
                                        (d). Additional Enrollment Centers                      with the cost of additional personnel for              MTSA.
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                                          Many commenters believed there                        extended enrollment center hours, to                      The Coast Guard and TSA are
                                        should be more enrollment centers at                    avoid increasing the amount of the fee                 examining methods to ensure that
                                        convenient locations to minimize travel                 for the applicants. The contractor                     mariners stationed overseas will have
                                        and missed work. Some commenters                        selected for enrollment may use existing               adequate opportunities to enroll for
                                        were concerned that the number of                       facilities as it deems appropriate.                    TWIC. This process may involve

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                                                         Federal Register / Vol. 72, No. 16 / Thursday, January 25, 2007 / Rules and Regulations                                          3547

                                        sending TWIC enrollment personnel                       enrollment. TSA and the Coast Guard                    developing standards for determining
                                        overseas for a short time.                              are currently considering that the                     this to apply consistently at all
                                                                                                enrollment centers will be within a five-              enrollment centers would be equally
                                        (g). Other Enrollment Center Issues
                                                                                                mile radius of the center of the port                  difficult. In addition, for security
                                           Commenters raised a number of                        population, where possible.                            reasons applicants must handle their
                                        miscellaneous suggestions and                                                                                  credentials carefully so that they do not
                                        questions regarding enrollment.                         (h). Use of E-Mail for Notifications and
                                                                                                Correspondence                                         fall into the hands of others.
                                        Commenters asked how TSA would
                                        address post-enrollment maintenance of                    A commenter asked if e-mail could be                    Several commenters expressed
                                        the enrollment centers.                                 used in place of paper notifications and               concern about the burden of requiring
                                           After the initial 18-month deployment                correspondence, and supported it as a                  an applicant to appear at an enrollment
                                        of enrollment centers, TSA will                         means for cost savings. A commenter                    center to report a lost or stolen card (as
                                        determine the needs for post-enrollment                 suggested allowing at least one alternate              required in the Prototype). According to
                                        maintenance of enrollment centers                       method for transmitting notifications                  these commenters, the inconvenience of
                                        based on population, turnover, and                      and correspondence to applicants.                      traveling to an enrollment center is
                                        other factors related to enrollment.                      TWIC enrollees will be notified via e-               exacerbated for mariners serving on
                                           Commenters suggested that the                        mail or voice mail that their card is                  vessels engaged in international voyages
                                        criminal history portion of the threat                  ready. TWIC applicants are asked to                    or on domestic voyages where the lack
                                        assessment should be conducted in the                   express a preference for one of these                  of proximity to an enrollment center
                                        applicant’s State of residence because                  methods, and should select the one they                would make it very difficult to mandate
                                        criminal codes vary from State to State.                are most likely to receive when sent.                  a personal appearance in a timely
                                           TSA will leverage existing tools and                 However, the notifications that TSA                    manner, especially considering the 24
                                        personnel to conduct security threat                    must provide following completion of                   by 7 watch schedules on commercial
                                        assessments. All of the CHRCs will go                   the security threat assessment must be                 vessels. Several commenters requested
                                        through the FBI’s Criminal Justice                      through the U.S. mail at this time. The                that individuals be able to order a
                                        Information Service (CJIS), which is the                infrastructure TSA currently uses for                  replacement TWIC via the Internet and
                                        national repository for criminal records.               HME applicants involves the electronic                 then validate his or her biometrics and
                                        It is true that criminal codes may vary                 production of letters that have been                   activate their TWIC during a single trip
                                        from State to State, but the adjudication               created to fit all potential threat                    to an enrollment center.
                                        staff and attorneys with criminal law                   assessment outcomes and transmission
                                        expertise who support the adjudication                  by U.S. mail. For the TWIC initial                        We agree with these comments, and
                                        process are experienced in examining                    enrollment and the HME process, TSA                    applicants should report lost, damaged
                                        State conviction records to determine if                cannot change this existing system, but                or stolen credentials through the TWIC
                                        a disqualifying offense in § 1572.103 of                will expand the system to accommodate                  Call Center. TWIC holders will have to
                                        the rule has occurred.                                  e-mail notifications in the future.                    visit an enrollment center once to pick
                                           Commenters asked if there would be                                                                          up and activate their replacement TWIC.
                                        accommodations for individuals who                      (i). Lost, Damaged, or Stolen TWICs
                                                                                                   Several commenters made reference                   (j). Employer Responsibility To Notify
                                        cannot produce 10 fingerprints due to
                                                                                                to the need to report a lost or stolen                 Employees
                                        injury. For purposes of the CHRC, TSA
                                        will consult with the FBI and utilize the               TWIC immediately.                                         A commenter remarked that such a
                                        procedure it has in place for individuals                  We agree with this comment. Lost,                   requirement should not be for
                                        who cannot produce 10 fingerprints.                     damaged, or stolen TWICs must be                       individual notice, but should be
                                           Commenters asked if making an                        reported to TSA in accordance with
                                                                                                                                                       fulfilled by a posting. The commenter
                                        appointment for completing enrollment                   § 1572.19(f). They should be reported to
                                                                                                                                                       expressed concern that if an individual
                                        provides a defined time slot for service.               the TWIC Call Center, which will have
                                                                                                                                                       is not notified and subsequently is
                                           As planned, the appointment process                  a readily available number, as soon as
                                                                                                                                                       determined to pose a threat of terrorism
                                        will allow the applicants to schedule a                 the card is determined to be missing or
                                                                                                                                                       or engaged in terrorist activity, the
                                        time for enrollment in 15- to 30-minute                 damaged. After the applicant submits
                                                                                                payment for the replacement TWIC                       owner/operator might be liable for any
                                        increments at a specific enrollment
                                                                                                card, the TWIC system will then                        damages that result.
                                        center. The center will also
                                        accommodate walk-in enrollees, but                      automatically send a signal to the card                   We recognize that an owner/operator
                                        will provide preference to those with                   production facility to trigger production              may have a variety of means at his or
                                        appointments.                                           of a replacement TWIC. TSA will add                    her disposal to communicate with
                                           Commenters asked what method of                      the lost/damaged/stolen credential to                  employees. The requirement does not
                                        payment would be acceptable for the                     the list of revoked cards for which                    specify that the notice be given to each
                                        TWIC fee. TSA will accept payment by                    access to secure areas cannot be granted,              employee individually, but whatever
                                        credit card, cashier’s check, or money                  to guard against the credential being                  mean is chosen (and there may be more
                                        order.                                                  used by someone other than the rightful                than one) it should be aimed at reaching
                                           Commenters asked if enrollment                       holder. Additionally, reporting the card               as many employees as possible.
                                        centers will be located at ports, and if                is a necessary step if the individual                     One commenter requested
                                        port personnel will be used to enroll                   continues to require unescorted access.                confirmation that TSA had stored the
                                        applicants. Also, commenters asked if                      One commenter stated that if an
                                                                                                                                                       fingerprints and biographical
                                        the enrollment staff will be trained.                   employee can demonstrate proof that
                                           TWIC enrollment centers will be                                                                             information of HME driver-applicants.
                                                                                                the TWIC was stolen, the fee for a
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                                        staffed by TSA contractor personnel—                    replacement TWIC should be waived.                        TSA stores the fingerprints and
                                        Trusted Agents, not port personnel. All                    We do not agree with the comment. It                biographic information of HME
                                        Trusted Agents will undergo a TSA                       would be very difficult to establish with              applicants who are licensed in States
                                        security threat assessment and complete                 certainty that a TWIC was stolen before                that use TSA’s agent to conduct
                                        specialized training before conducting                  a replacement card is ordered, and                     enrollment.

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                                        3548             Federal Register / Vol. 72, No. 16 / Thursday, January 25, 2007 / Rules and Regulations

                                        3. Appeal and Waiver Issues                             waiver processes more reasonable for                   federal government, not the owner/
                                        (a). Independent Review by Neutral                      the group of workers affected.                         operator.
                                        Party                                                   (c). Facility Owner’s Role in TWIC                     4. TSA Inspection
                                                                                                Appeal Process
                                           Several commenters urged TSA to                                                                                In proposed § 1572.41, TSA proposed
                                        modify the appeal and waiver processes                     One commenter said that the                         to require owners/operators to permit
                                        to include an independent review by a                   adjudication process for information                   TSA personnel to enter the secure areas
                                        neutral party, such as an ALJ. TSA                      developed during the security threat                   of maritime facilities to evaluate,
                                        issues an Initial Determination of Threat               assessment is flawed and undermines                    inspect, and test for compliance with
                                        Assessment if the results of the threat                 the facility owner’s responsibility
                                                                                                                                                       the standards in part 1572. Many
                                        assessment reveal a disqualifying                       because it does not involve the owner/
                                                                                                                                                       commenters recommended that the
                                        standard. In the proposed rule, TSA                     operator of a facility. The commenter
                                                                                                                                                       Coast Guard serve as the primary
                                        stated that if legislation were enacted                 said that a facility owner might have
                                        after publication of the proposed rule                                                                         inspection authority. Several
                                                                                                information that could allow the appeal
                                        that requires TSA to adopt a program in                 to be decided quickly. The commenter                   commenters expressed uncertainty
                                        which ALJs may be used to review cases                  said that the proposed appeal process                  regarding whether or the degree to
                                        in which TSA has denied a waiver                        conflicts with the facility owner’s                    which TSA’s envisioned responsibility
                                        request, TSA would amend the final                      ultimate responsibility for the security               for auditing TWIC readers implies a role
                                        rule to address such statutory mandates.                of his facilities and that it could create             for TSA in compliance checking. Some
                                        71 FR at 29421. On July 11, 2006, the                   significant liability issues for facility              commenters suggested that the Coast
                                        Coast Guard and Maritime                                owners. The commenter stated that the                  Guard be responsible for all vessel and
                                        Transportation Act of 2006 was signed                   ultimate responsibility for determining                facility inspections, particularly those
                                        into law. H.R. 889, sec. 309, amending                  an individual’s eligibility for unescorted             that entail boarding vessels. One
                                        46 U.S.C. 70105(c). The Act mandates                    access to critical facilities must remain              commenter recommended an MOA
                                        the creation of a review process before                 with the owner of that facility.                       between the Coast Guard and TSA and
                                        an ALJ for individuals denied a waiver                     We disagree. The statutory language                 one suggested that TSA access TWIC
                                        under the TWIC program. As a result,                    of 46 U.S.C. 70105 specifically prohibits              readers under the Coast Guard
                                        we have added procedures for the                        sharing of information with an                         oversight. Another commenter
                                        review by an ALJ for requests for                       applicant’s employer: ‘‘Information                    recommended that TSA delete 49 CFR
                                        waivers that are denied by TSA. These                   obtained by the Attorney General or the                1572.41, not implement a TSA
                                        procedures are discussed in detail above                Secretary under [sec. 105 of the MTSA]                 inspection program, and revise 33 CFR
                                        in ‘‘TSA Changes to the Proposed Rule.’’                may not be made available to the public,               101.400 and 33 CFR 101.410 to add
                                                                                                including the individual’s employer.’’ It              TWIC compliance to existing Coast
                                        (b). Deadlines for Appeal and Waiver
                                                                                                further provides that ‘‘An individual’s                Guard vessel and facility security
                                                                                                employer may only be informed of                       inspection programs.
                                           Several commenters argued that it                    whether or not the individual has been                    In accordance with our statutes, TSA
                                        would be difficult for individuals who                  issued the card under [sec. 70105 of the               and the Coast Guard have joint
                                        travel for extended periods of time to                  MTSA].’’ An applicant may offer any                    responsibility for development and
                                        comply with the 60-day deadline for                     information during an appeal or waiver                 oversight of the TWIC program. In
                                        appealing an adverse determination or                   process that he or she feels is relevant               addition, both agencies have statutory
                                        requesting a waiver. Some of these                      to the appeal or waiver process,                       authority to inspect for compliance with
                                        commenters also noted that TSA’s                        including information from the                         their regulations and to conduct security
                                        definition of ‘‘date of service’’ provides              employer on his or her behalf that the                 assessments. The intent of adding
                                        for constructive notice but does not                    applicant feels will assist the                        specific language to the regulation
                                        ensure actual notice.                                   adjudicators in making a decision.                     regarding TSA’s inspection authority is
                                           While the proposed rule allowed                         The TWIC process does not create a                  not to add additional burdens to the
                                        applicants to apply for an extension of                 liability issue for facility or vessel                 maritime industry but to clarify the
                                        the deadline, the request for extension                 owner/operators. The ultimate                          existing authority and inform the public
                                        had to be in writing and received by                    responsibility for decisions as to who                 of their statutory obligations. To address
                                        TSA within a reasonable time before the                 should be allowed entry, and under                     the concerns expressed by the maritime
                                        due date to be extended. TSA                            what conditions, remains with the                      industry and promote consistency,
                                        understands that if individuals have                    owner/operator, so long as only TWIC                   Coast Guard and TSA field guidance
                                        difficulty complying with the 60-day                    holders are given unescorted access to                 will be developed and include the need
                                        deadline for appealing an adverse                       secure areas. The TWIC system                          for coordination of TSA inspections or
                                        decision or requesting a waiver,                        enhances his or her ability to make that
                                                                                                                                                       tests with the local Coast Guard COTP
                                        individuals may have equal difficulty                   decision by providing a highly reliable
                                                                                                                                                       or his/her representative.
                                        requesting an extension within the                      source of information regarding the
                                        timeframe allowed. For these reasons,                   known risks presented by an individual                    The inspection rule language has been
                                        TSA is amending its appeal and waiver                   requiring access. The owner/operator                   moved to 49 CFR 1570.11, where it fits
                                        procedures to allow requests for an                     can therefore make informed, confident                 organizationally among the other
                                        extension even after the deadline for                   choices in deciding whether or not to                  general requirements. This section is
                                        response has passed. Individuals will                   grant access and under what conditions.                similar to those in other modes of
                                        now be allowed to request an extension                  Furthermore, since the owner/operator                  transportation and is necessary for TSA
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                                        of the deadline after the deadline has                  is removed from the adjudication                       to exercise its oversight and
                                        passed by filing a motion describing the                process, he or she is further protected                enforcement responsibilities over
                                        reasons why they were unable to                         from increased liability, since all                    trusted agents, the enrollment process,
                                        comply with the timeline. We believe                    challenges to the adjudication process                 and the performance of the credential in
                                        this amendment makes the appeal and                     will necessarily be directed at the                    a variety of circumstances.

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                                                         Federal Register / Vol. 72, No. 16 / Thursday, January 25, 2007 / Rules and Regulations                                           3549

                                        5. Security Threat Assessment                           language proposed in the NPRM. TSA                     attempting to rectify a problem that
                                        (a). Comparability of Other Background                  looks forward to working with other                    surfaced in the adjudication process,
                                        Checks                                                  governmental agencies, many of which                   which might stem from a case of
                                                                                                were cited in the comments, to issue                   mistaken identity or inaccurate court
                                           We received many comments on                         comparability determinations where                     records.
                                        proposed § 1572.5(d), in which TSA                      appropriate and eliminate duplicative                     First, it is important to state that the
                                        described a process to determine if                     checks. When a comparability decision                  TWIC program does not have a
                                        security threat assessments or                          is made, TSA will announce the                         mandatory ‘‘waiting period.’’ Rather,
                                        background checks completed by other                    decision through a Notice in the Federal               TSA must adjudicate the security threat
                                        governmental agencies can be deemed                     Register. Fees will be reduced in the                  assessment of each applicant following
                                        comparable to TSA’s threat assessment                   same manner described in this                          enrollment and each case necessarily
                                        for TWIC and HME, to minimize                           rulemaking for holders of HMEs.                        entails processing time. During the
                                        redundant assessments. Generally,                          We do not believe it would be                       initial enrollment roll out, owners/
                                        commenters supported the concept of                     advisable to offer comparability                       operators must give ample notice to
                                        recognizing the background checks of                    determinations to private companies for                workers so that the threat assessment
                                        other government agencies as                            the checks they perform on the                         can be completed before the workers are
                                        comparable. Many argued that maritime                   workforce. A check conducted by a                      required to present a TWIC to gain
                                        workers may have a government                           private employer would not include the                 access to secure areas. As a general rule,
                                        ‘‘Secret’’ or ‘‘Top Secret’’ clearance and              in-depth review of information related                 security threat assessments and issuance
                                        should not be required to undergo a                     to terrorist activity and organizations to             of a TWIC should take no longer than
                                        TWIC threat assessment. Commenters                      which TSA has access. These checks are                 30 days. In fact, in our experience
                                        from marine services companies,                         critical to making the security                        completing the threat assessments for
                                        shipping and cruise lines, towing                       determination that MTSA requires.                      hazmat drivers, threat assessments are
                                        companies, and maritime organizations                                                                          typically completed in less than 10 days
                                        stated that background checks                           (b). Adjudication Time
                                                                                                                                                       and we will strive to keep the threat
                                        performed by employers should                              The proposed rule preamble states                   assessment time period to 10 days for
                                        alleviate, in whole or part, security                   that facility and vessel owners/operators              most applicants. However, processing
                                        concerns and make TWIC unnecessary.                     must notify workers of their                           time increases for an applicant with a
                                        Some said that company ID badge                         responsibility to enroll and that                      criminal history or other disqualifying
                                        programs adequately address the                         generally, owners/operators should give                information, and is further lengthened if
                                        security issues. Some commenters said                   individuals 60-days notice to begin the                the applicant initiates an appeal or
                                        the name checks currently being                         process. Many commenters objected to                   waiver.
                                        conducted on port workers created                       this timeframe, referring to it as a ‘‘60-                Criminal records are not standard and
                                        adequate safeguards. Two commenters                     day waiting period.’’ One commenter                    are often incomplete or out-of-date.
                                        said that they should have an                           urged TSA to dedicate additional                       When a rap sheet is revealed following
                                        opportunity to demonstrate to TSA that                  resources to ensure the system has the                 submission of an applicant’s
                                        their credential program qualified as an                capacity to handle the processing load.                fingerprints, an adjudicator must review
                                        alternate to TWIC and could be                          Other commenters believed that                         it carefully and often must make
                                        designated as ‘‘TWIC equivalent.’’ One                  completing the threat assessment in less               additional inquiries in other public
                                        commenter noted that TWIC would                         than 30 days is optimistic.                            court data sources or telephonically to
                                        need to cover persons who are not                          Many commenters urged that the time                 determine if a disqualifying offense has
                                        normal seaport employees, such as                       needed to complete an applicant’s                      occurred, and if it occurred within the
                                        Federal postal service employees. One                   adjudication should be shortened.                      prescribed time period. In addition,
                                        commenter pointed out that background                   Several pointed out that during TWIC                   often the adjudicator must contact
                                        checks for unescorted access to the                     Prototype testing, the goal was 96 hours               another agency that may be engaged in
                                        Secure Identification Display Areas of                  from enrollment to receipt of the card,                an investigation of the applicant, to
                                        an airport are equivalent to or more                    and commenters favored this time                       determine the nature of the
                                        stringent than the background checks                    period. A few commenters asked why                     investigation, if it involves security-
                                        under the proposed rule. One                            the period could not be shortened to 24                related issues, and whether going
                                        commenter noted that certain utility                    or 48 hours, and others suggested 5                    forward with an Initial Determination of
                                        workers are already subject to more                     days, which is the standard in Florida.                Threat Assessment would
                                        stringent security measures such as                     Some asked why we could not adopt the                  inappropriately signal to the applicant
                                        Nuclear Regulatory Commission                           check completed for purchasing a                       that an investigation is ongoing. This
                                        requirements. One commenter requested                   firearm. A commenter noted that the in                 process can be very lengthy, and one
                                        that the final rule recognize the                       legislative history of MTSA, members of                over which TSA generally has no
                                        equivalency of the DOD National                         Congress expected that DHS would be                    control.
                                        Industrial Security Program (DOD NIST)                  able to issue a TWIC within 72 hours of                   The time period needed to complete
                                        and the U.S. Office of Personnel                        receipt of an application. Others,                     security threat assessments during the
                                        Management’s Trustworthy                                including local port authorities and                   TWIC prototype is not a good model
                                        Determination review and clearance                      associations, did not give a specific                  from which to make comparisons. TSA
                                        programs. Several commenters                            timeframe but thought the processing                   was not able to complete a CHRC during
                                        supported the fact that the proposed                    time could and should be reduced. One                  Prototype, because there was not a
                                        rules will accept a background check                    commenter asked TSA to provide                         regulation in place requiring a
                                        done for a hazardous materials                          expedited or prioritized application                   fingerprint-based check. Therefore, the
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                                        endorsement or under CBP’s FAST                         service for merchant mariners who are                  time needed to complete the threat
                                        program.                                                often absent for many months at a time.                assessment was much shorter than is
                                           TSA is pleased that this section is                  One commenter recommended that TSA                     typical. However, the Prototype
                                        generally favored by the industry and                   should consider issuing a temporary                    provided data on enrollment and card
                                        we are not making any changes to the                    credential for those individuals who are               production processing times. We will

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                                        3550             Federal Register / Vol. 72, No. 16 / Thursday, January 25, 2007 / Rules and Regulations

                                        process applications as they are                        remain a seafarer. No commitment of                    other circumstances of the conviction as
                                        received. After applications are received               employment was required. This soon                     part of the waiver process.
                                        and sent for security threat assessment,                became an administrative burden with                      Other commenters suggested that
                                        individual processing times will vary                   the applicant obtaining a temporary                    ‘‘improper transportation of a hazardous
                                        based on the complexity of the                          MMD, sailing for awhile, and then                      material’’ and ‘‘unlawful possession of
                                        adjudication.                                           finding better employment ashore. In                   an explosive or explosive device’’
                                           The check done when an individual                    addition, the Coast Guard had many                     should not permanently disqualify
                                        wishes to purchase a firearm differs                    records of issuance with no closure                    someone from obtaining a TWIC. TSA
                                        from this check in many respects. The                   because the applicant never returned to                disagrees. These offenses have always
                                        firearms check was created before the                   apply for a final MMD.                                 been permanent disqualifiers. Because
                                        terrorist attack on September 11, and                      A general review of background                      of the dangerous nature of explosives, a
                                        has a different purpose. The government                 checks and security threat assessments                 felony offense involving hazardous or
                                        reviews different records for that check,               across government and in the private                   explosive materials is highly relevant to
                                        which do not require fingerprints to                    sector will show that the TSA                          a person’s qualifications to transport
                                        search. No credential is issued and no                  processing time for a TWIC or HME is                   hazardous material or to have
                                        biometric is used to verify identity, so                far below the average time to complete                 unescorted access to secure areas. As
                                        the system needed to support the                        an assessment. Many threat assessments                 TSA stated in the NPRM, after
                                        program is less complex. The volume of                  take six months or longer. In any event,               reviewing all of the individual
                                        applicants is lower than in TSA’s                       as described above in the discussion of                circumstances, TSA has granted waivers
                                        security threat assessment programs and                 the Coast Guard’s provisions, we have                  for prior nonviolent felony convictions
                                        there is a different funding mechanism                  included a provision in the final rule to              for illegal possession of an explosive.
                                        for the firearms search.                                provide relief to the owner/operator                      Commenters noted that States define
                                           In response to the many comments on                  who absolutely must provide a new                      crimes differently and that these
                                        adjudication time, TSA is amending the                  direct hire with access to secure areas                inconsistent standards may lead to
                                        information required or requested for                   before the individual’s TWIC has been                  unequal standards for denying
                                        enrollment to help expedite the                         issued.                                                individuals employment. Where
                                        adjudication process. Most of the new                                                                          necessary, TSA evaluates an applicant’s
                                        information is voluntary; however,                      (c). Disqualifying Criminal Offenses                   State conviction by comparison to the
                                        providing it should help TSA complete                      We received a variety of comments                   State crime to the elements of the
                                        adjudications more quickly. All of the                  concerning disqualifying criminal                      applicable federal crime. TSA may
                                        amendments apply to HME and TWIC                        offenses. We changed this section in                   review the individual circumstances of
                                        applicants. First, applicants who are                   response to comments, and the changes                  a conviction, including the elements of
                                        U.S. citizens born abroad may provide                   are discussed in detail above in the                   the crime as defined by a particular
                                        their passport number and Department                    ‘‘TSA Changes from the Proposed Rule.’’                State, if the crime is identified as one for
                                        of State Consular Report of Birth                       We received some very specific                         which the applicant may be eligible for
                                        Abroad. These documents expedite the                    comments that we will address here.                    a waiver and the applicant seeks a
                                        adjudication process for applicants who                    Several commenters including port                   waiver from disqualification.
                                        are U.S. citizens born abroad. In                       authorities recommended that cargo                        TSA also received several comments
                                        addition, applicants who have                           theft be added to the list of disqualifying            suggesting that the language was unclear
                                        previously completed a TSA threat                       crimes. Depending on the circumstances                 explaining how prior convictions and
                                        assessment should provide the date of                   of the conviction, TSA believes that, in               incarceration count to disqualify an
                                        completion and the program for which                    most cases, cargo theft will be covered                applicant. TSA has revised the language
                                        it was completed. Also, applicants are                  by § 1572.103(b)(2)(iii) dishonesty,                   to clarify that the crimes listed are
                                        asked to provide information if they                    misrepresentation, or fraud.                           disqualifying if either of the following is
                                        hold a Federal security clearance, and                     Some commenters suggested that                      true: (1) The applicant’s date of
                                        include the date the clearance was                      improper transportation of hazardous                   conviction is within seven years of the
                                        granted and the agency for which the                    materials could encompass neglecting to                date of application; or (2) the applicant
                                        clearance was performed.                                placard a vehicle or to replace a placard              was incarcerated for that crime and was
                                           We considered issuing a temporary                    that fell off. Also, commenters are                    released from incarceration within five
                                        credential to individuals while their                   concerned that a transportation security               years of the date of application.
                                        threat assessment is underway, but                      incident could include an                                 Requests for ‘‘grandfathering,’’ that is,
                                        determined it would create more                         environmental spill caused by                          waiving all or certain disqualifying
                                        problems than it would solve. First, the                negligence. TSA does not agree.                        crimes for individuals who have been
                                        fee to each applicant would increase                    Improper transportation of a hazardous                 working on a MTSA-regulated facility or
                                        dramatically. Second, an entirely new                   material under 49 U.S.C. 5124 requires                 vessel prior to the implementation date
                                        software system would have to be                        that the violation be knowingly,                       for TWIC, were carefully considered and
                                        developed to implement a temporary                      willfully, or recklessly committed. To be              evaluated at length during the public
                                        credential. For a simple system, the                    disqualified under the rule, the                       comment period and drafting of the
                                        temporary card would probably not                       applicant must have received a felony                  final rule. We have decided not to
                                        contain a biometric or photograph, and                  conviction for improper transportation                 include a grandfathering provision in
                                        so the opportunities for misuse would                   of hazardous materials or a                            order to ensure that all individuals who
                                        be great.                                               transportation security incident. A                    are issued a TWIC have successfully
                                           The Coast Guard has had experience                   felony conviction for these crimes                     completed a published and consistent
                                        with issuing temporary credentials. In                  reflects evidence of serious criminal                  threat assessment process. Part of the
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                                        the late 1970s, the Coast Guard issued                  culpability for conduct directly related               purpose in implementing TWIC is
                                        temporary MMDs, in the form of a letter,                to proper transportation procedures and                finding out who is in our ports; we do
                                        to allow an applicant to sail for six                   port security. Both of these offenses are              not think it is appropriate to allow
                                        months during which time the applicant                  waiver eligible, and TSA may evaluate                  unescorted access to an individual who
                                        could decide if he or she wanted to                     the applicant’s conduct, intent, and                   may pose a terrorism risk merely

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                                        because he or she has worked in the                     the indictment is subsequently                         show U.S. residence for three years to
                                        maritime environment for a period of                    dismissed or, after trial, results in a                apply for a TWIC. Several commenters
                                        time without incident. Doing so                         finding of not guilty, the applicant is no             noted that multinational corporations
                                        presents an unacceptable security risk.                 longer disqualified and may reapply for                involved in the maritime industry have
                                        However, in order to address the                        a TWIC.                                                foreign employees and foreign business
                                        industry comments and concerns over                        A commenter asked TSA to                            partners at U.S. facilities, and these
                                        losing a significant population of the                  reconsider the practice of considering a               individuals should not have to be
                                        work force due to an inability to apply                 guilty plea a conviction for purposes of               escorted through secured facilities or
                                        for and receive a TWIC due to the                       this section. TSA applies federal law to               vessels.
                                        disqualifying crimes requirement, the                   determine whether the disposition of a                    The NPRM was drafted to permit non-
                                        list has been modified, and the waiver                  criminal case constitutes a                            resident aliens in the U.S. with
                                        appeal process has been enhanced to                     ‘‘conviction.’’ In Dickerson v. New                    authorization to work here to apply for
                                        include independent third party                         Banner Institute, Inc., 460 U.S. 103                   and obtain a TWIC, so the first two
                                        evaluation.                                             (1983), the United States Supreme Court                commenters’ concerns are not
                                           Several commenters opposed                           held that the defendant had been                       warranted. TSA and the Coast Guard
                                        § 1572.107 which grants TSA the ability                 convicted for the purpose of a federal                 considered the relatively common
                                        to disqualify individuals for crimes that               gun control statute even though under                  employment of foreign specialists in
                                        are not included on its list, as this                   state law, the defendant’s sentence had                certain maritime job categories when
                                        would be too subjective or applied                      been deferred. The fact that the                       developing the immigration standards.
                                        inconsistently. Others commented that                   defendant pled guilty to the state                     This final rule allows holders of certain
                                        § 1572.107(b) violates due process as it                offense was sufficient to constitute a                 categories of nonimmigrant visas, with
                                        allows TSA to disqualify an individual                  conviction for the purposes of federal                 work authorization, to apply for a TWIC.
                                        merely ‘‘suspected’’ of posing a security               law. This case supports a broad                           For purposes of this discussion, it is
                                        threat.                                                 interpretation of the term ‘‘convicted,’’              helpful to explain that there are two
                                           TSA believes that this is a necessary                for purpose of this final rule.                        categories of U.S. visas: immigrant and
                                        provision, as it is impossible to list                                                                         nonimmigrant. As provided in the
                                        every crime that may be indicative of a                 (d). Waivers                                           immigration laws, an immigrant is a
                                        threat to security. Further, § 1572.107 is                 It is important to highlight here that              foreign national who has been approved
                                        not often used to disqualify persons for                applicants who are disqualified due to                 for lawful permanent residence in the
                                        criminal convictions, and part 1515                     a criminal conviction should make                      United States. Immigrants enjoy
                                        requires a different level of review than               every effort to apply for a waiver,                    unrestricted eligibility for employment
                                        a determination based on the list of                    assuming the crime is waiver-eligible.                 authorization. Nonimmigrants, on the
                                        disqualifying crimes.                                   TSA has developed the waiver program                   other hand, are foreign nationals who
                                           Paragraph 1572.103(d) describes how                  to ensure that individuals who have a                  have permanent residence outside the
                                        an arrest with no indication of a                       criminal history but no longer pose a                  United States and who are admitted to
                                        conviction, plea, sentence or other                     threat are not denied an HME or a                      the United States on a temporary basis.
                                        information indicative of a final                       TWIC. The process is informal, designed                Thus, immigrant visas are issued to
                                        disposition must be handled. TSA is                     for applicants who are not represented                 qualified persons who intend to live
                                        changing the time allowed for an                        by counsel and are not conversant with                 permanently in the United States.
                                        applicant to provide correct records                    legal terms and process. We accept                     Nonimmigrant visas are issued to
                                        from 30 days to 60 days. The individual                 hand-written waiver applications, so the               qualified persons with permanent
                                        must provide TSA, within 60 days after                  applicant does not need to have a                      residence outside the United States, but
                                        the date TSA notifies the individual,                   computer.                                              who are authorized to be in the United
                                        with written proof that the arrest did not                 In determining whether to grant a                   States on a temporary basis, usually for
                                        result in a conviction of a disqualifying               waiver request, we are most interested                 tourism, business, study, or short or
                                        criminal offense. If TSA does not                       in the circumstances surrounding the                   long-term work. Certain categories of
                                        receive such proof within 60 days, TSA                  conviction, the applicant’s history since              lawful nonimmigrant visas or status
                                        will notify the applicant that the he or                the conviction, the length of time the                 allow for restricted employment
                                        she is disqualified from holding an HME                 applicant has been out of prison if                    authorization during the validity period
                                        or a TWIC.                                              sentenced to incarceration, and                        of the visa or status.
                                           One commenter stated that preventing                 references from employers, probation                      An alien holding one of the following
                                        individuals who are wanted or under                     officers, parole officers, clergy and                  visa categories is eligible to apply for a
                                        indictment for listed felonies from                     others who know the applicant and can                  TWIC: (1) H–1B Special Occupations;
                                        obtaining a TWIC is inappropriate since                 attest to his or her responsibility and                (2) H–1B1 Free Trade Agreement; (3) E–
                                        only those that have been ‘‘convicted’’                 good character. TSA grants the majority                1 Treaty Trader; (4) E–2 Treaty Investor;
                                        can be denied a security card.                          of waiver applications received.                       (5) E–3 Australian in Specialty
                                           An individual under want or warrant                                                                         Occupation; (6) L–1 Intra Company
                                        is a fugitive from justice and therefore                6. Immigration Status                                  Executive Transfer; (7) O–1
                                        is not a suitable candidate for a TWIC.                    Commenters asked the TSA to extend                  Extraordinary Ability; or (8) TN North
                                        In addition, the return of an indictment                TWIC eligibility to non-resident aliens                American Free Trade Agreement. In
                                        for a disqualifying crime reflects a                    who are lawfully admitted into the U.S.                selecting these visa categories, we
                                        preliminary finding that there is, at a                 under visas that permit them to work.                  focused on the professionals and
                                        minimum, reasonable cause to believe                    Another commenter noted that maritime                  specialized workers who are frequently
                                        that the individual committed the                       owners/operators bring in specialists                  employed in the maritime industry to
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                                        disqualifying crime. Therefore, TSA has                 from around the world to complete                      work on vessels or other equipment
                                        determined that persons who are the                     specialized tasks on vessels, and these                unique to the maritime industry. In
                                        subject of a pending indictment for one                 workers should be able to apply for and                addition, we understand that many
                                        of the crimes on the list should be                     obtain a TWIC. One commenter                           Canadian and Mexican citizens conduct
                                        disqualified from obtaining TWICs. If                   suggested that applicants should have to               business at ports in the United States,

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                                        3552             Federal Register / Vol. 72, No. 16 / Thursday, January 25, 2007 / Rules and Regulations

                                        and barring them from obtaining a TWIC                  available information TSA can use to                   transportation. Fees may be collected to
                                        would create an undue burden on                         determine if the applicant poses a                     pay for the costs of the following: (1)
                                        commerce. Also, we are adding foreign                   security threat.                                       conducting or obtaining a CHRC; (2)
                                        nationals who are attending the U. S.                                                                          reviewing available law enforcement
                                                                                                8. TWIC Expiration and Renewal
                                        Merchant Marine Academy to the group                                                                           databases, commercial databases, and
                                        of aliens who may apply for a TWIC, if                                                                         records of other governmental and
                                        they are in proper visa status. Finally,                   Several commenters stated that the                  international agencies; (3) reviewing
                                        we are including applicants from the                    TWIC should remain valid for more                      and adjudicating requests for waivers
                                        Marshall Islands, Micronesia, and Palau                 than five years. Most noted the cost of                and appeals of TSA decisions; and (4)
                                        as eligible to apply for a TWIC. The                    renewal as the basis for supporting a                  other costs related to performing the
                                        United States has entered into treaties                 longer period. Commenters who                          security threat assessment or the
                                        with these countries and shares close                   supported a longer period also                         background records check, or providing
                                        ties with each of them. Citizens of the                 commonly argued that the biometric                     the credential. 46 U.S.C. 469. Section
                                        Marshall Islands, Micronesia, and Palau                 information, fingerprints, generally do                520 requires that any fee collected must
                                        may reside in the United States                         not change over long periods of time.                  be available only to pay for the costs
                                        indefinitely and have unrestricted                      One commenter suggested requiring                      incurred in providing services in
                                        authorization to work here.                             new fingerprints and digital photos only               connection with performing the security
                                           In order to minimize the likelihood                  when something occurs to alter them                    threat assessment or the background
                                        that an applicant with a short-term visa                significantly.                                         records check, or providing the
                                        retains a 5-year TWIC, we are requiring                    The NPRM proposed that a TWIC                       credential. Id.
                                        the employer of any individual holding                  expire five years after it was issued, at                 Some commenters said the fee was
                                        an eligible nonimmigrant visa to retrieve               the end of the month in which it was                   too high for dock, seasonal, and entry-
                                        the TWIC from the employee when the                     issued. See § 1572.21(e). In a new                     level workers to pay because their
                                        visa expires, the employer terminates                   section, § 1572.23, the final rule retains             income is low. TSA’s fee authority,
                                        the employment, or the employee                         this provision, except that the                        found in 6 U.S.C. 469, does not
                                        otherwise ceases to work for the                        expiration occurs on the day, rather                   authorize TSA to adjust a fee based on
                                        employer. In addition, we require the                   than end of the month, five years from                 the income of the applicant. Rather,
                                        employee to surrender the TWIC to the                   when it was issued. Therefore, if a                    Congress requires TSA to set a fee in
                                        employer. If the employer terminates                    TWIC is issued March 20, 2007, it                      amounts that are reasonably related to
                                        the employee, or the employee ceases                    expires at the end of the day March 19,                the costs of providing services.
                                        working for the employer, the employer                  2012.                                                     Many commenters were concerned
                                        must notify TSA within five business                       As the technology and program                       about an applicant having to pay
                                        days and provide the TWIC to TSA if                     mature, we plan to date the expiration                 multiple fees for background checks
                                        possible.                                               of a renewal TWIC five years from the                  under other programs, such as HMEs.
                                                                                                date the previous TWIC expired, so that                Another commenter stated that industry
                                        7. Mental Incapacity                                    applicants who begin the renewal                       had already paid for modification and
                                           One commenter believes that the                      process early are not penalized by                     sustaining TSA’s Screening Gateway in
                                        NPRM inaccurately treats illnesses like                 having the initial 5-year term end early.              the HME program, and is essentially
                                        drug addiction as indicators of mental                  We would like to provide a 6-month                     paying twice for the Screening Gateway
                                        incapacity if commitment to an                          time period for renewal to give full                   under TWIC. TSA has addressed these
                                        institution results. Another commenter                  opportunity to individuals to reapply in               concerns in the final rule by reducing
                                        representing port employers stated that                 time to get a new TWIC before the old                  the Card Production/Security Threat
                                        some port workers have very low IQs                     one expires, even if they are mariners                 Assessment Segment for applicants who
                                        and consequently have been assigned                     that are away for long periods of time.                have already received a comparable
                                        legal guardians, but work successfully                  A six-month time period would also                     threat assessment from DHS, including
                                        in port facilities.                                     encourage TWIC holders to apply early                  those for credentialed merchant
                                           TSA agrees that such applicants can                  for renewal so that TSA has sufficient                 mariners, HMEs, and FAST card
                                        be determined to be qualified to hold a                 time for vetting of the applicant and to               holders.
                                        TWIC or HME. As discussed above in                      adjudicate an appeal or waiver, if                        Other commenters stated that the cost
                                        the ‘‘TSA Changes to the Proposed                       appropriate, before the TWIC expires.                  of card production and issuance fees
                                        Rule,’’ TSA has no interest in limiting                 However, the TWIC system                               should be separated from the
                                        the ability of mentally-challenged or ill               programming cannot develop that                        information collection and threat
                                        workers to obtain a TWIC. Therefore,                    capability by the time enrollment                      assessment expenses. These
                                        TSA is changing the waiver process to                   begins.                                                commenters recommended that the
                                        permit applicants who have been                                                                                applicant should only be required to
                                        committed to a mental health facility or                9. Fees for TWIC                                       pay for the services used: information
                                        declared mentally incapable of handling                    Some commenters stated that the                     collection and threat assessment.
                                        their affairs to apply for a waiver. TSA                federal government should pay for some                 According to these commenters, TSA,
                                        will decide these waiver requests on a                  or the entire program. The law states                  not applicants, should fund the TSA
                                        case-by-case basis. TSA will not                        that TSA must collect user fees in order               infrastructure costs of card production,
                                        necessarily require documentation                       to fund all program operations. The                    issuance and program management.
                                        showing that the disqualifying malady                   federal government has a statutory                     Similarly, some commenters stated that
                                        or condition is no longer present. The                  obligation, therefore, to collect fees in              only the persons who request an appeal
                                        documentation submitted to TSA in                       order to pay for program expenses.                     or waiver should pay for the cost of
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                                        support of the waiver request will be                      Section 520 of the 2004 DHS                         adjudicating the security threat
                                        very important in making the waiver                     Appropriations Act requires TSA to                     assessments and administering the
                                        determination, however, applicants                      collect reasonable fees for providing                  appeal and waiver processes.
                                        and/or their representatives should                     credentialing and background                              TSA agrees that costs should be
                                        carefully consider and include all                      investigations in the field of                         segregated when possible, and has

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                                                         Federal Register / Vol. 72, No. 16 / Thursday, January 25, 2007 / Rules and Regulations                                            3553

                                        worked to segregate costs depending on                  Federal Register notifying the public of               order to redefine secure areas. If
                                        the service provided. For example, the                  the change.                                            facilities are able to redefine their secure
                                        TSA agent will collect a fee for the                       Some commenters stated that the fee                 areas in such a way as to focus on
                                        services provided by its trusted agents                 structure would require companies to                   highly sensitive areas, and thereby limit
                                        to enroll applicants, and the services to               pay for a TWIC card for a high volume                  the number of individuals who must
                                        issue replacement cards. TSA will                       of seasonal workers who may be gone                    enter them, then that may limit the costs
                                        collect a fee for the background                        before their cards are issued. Other                   associated with this requirement.
                                        investigations only to the extent that it               commenters were concerned that a                          Second, the final rule allows
                                        conducts new investigations. TSA will                   diverse range of ‘‘casual’’ laborers, such             passenger vessels and ferries to establish
                                        collect the FBI fee only from applicants                as plumbers, office cleaning crews,                    employee access areas that are neither
                                        that will be subject to a fingerprint-                  vehicle mechanics, utility repairmen,                  public access areas nor secure areas. In
                                        based CHRC, not from applicants who                     entertainers, and caterers, were omitted               these areas employees will be able to
                                        already have undergone a comparable                     from the TWIC population used to                       work unescorted without a TWIC. We
                                        CHRC. Congress granted TSA broad fee                    calculate fees. These commenters stated                believe that the final rule provides
                                        authority to collect a fee for ‘‘providing              that having to escort so many casual                   vessels, facilities, and OCS facilities
                                        the credential,’’ and ‘‘any other costs                 laborers into secure areas was                         with enough flexibility to accommodate
                                        related to providing the credential or                  impractical and a ‘‘hidden cost.’’                     the many of the temporary workers that
                                        performing the background record                           TSA derived its population estimate                 are prevalent in the maritime industry.
                                        checks.’’ This includes the costs of card               by determining which port workers
                                                                                                                                                          Commenters inquired as to whether
                                        production, issuance, and program                       would be most likely to need unescorted
                                                                                                                                                       lifecycle costs such as yearly
                                        management. 6 U.S.C. 469(1), (3).                       access to secure areas on a regular basis,
                                                                                                                                                       maintenance, card management
                                        Moreover, sec. 469(3) specifically                      and therefore, most likely to need a
                                                                                                                                                       systems, enrollment equipment and PKI
                                        requires TSA to collect a fee for                       TWIC. TSA estimates that during initial
                                                                                                                                                       certifications were included in the fee
                                        reviewing and adjudicating requests for                 rollout of the program, it will issue
                                                                                                                                                       assessment. TSA’s cost model does
                                        appeals and waivers.                                    TWICs to approximately 770,000
                                                                                                                                                       include the 5-year life cycle of the TWIC
                                                                                                workers who require unescorted access
                                           Commenters were also concerned that                                                                         card and the associated costs of that life
                                                                                                to secure areas of MTSA-regulated
                                        fees collected would exceed the cost of                                                                        cycle.
                                                                                                facilities. This approach is the product
                                        implementing the system. However,                                                                                 One commenter stated that some
                                                                                                of survey and analysis work by TSA and
                                        under OMB guidance on user charges,                                                                            applicants will not have credit cards or
                                                                                                Coast Guard personnel, using
                                        TSA may charge fees only as sufficient                                                                         bank accounts, and that TSA should
                                                                                                information provided by individual
                                        to recover the full cost of providing the                                                                      accept cash. TSA is concerned that the
                                                                                                ports, public and private-sector data
                                        product and operating the program, and                                                                         acceptance of cash would introduce
                                                                                                sources, interviews with sector subject-
                                        TSA has worked hard to estimate the                                                                            problems concerning an audit trail and
                                                                                                matter experts, and extrapolation from
                                        costs of the TWIC program as accurately                 survey responses. An electrician who                   the potential for fraud. Therefore, the
                                        as possible. TSA’s analyses of the                      comes to the facility two times a year                 rule requires payment by cashier’s
                                        appropriate costs that make up the fees                 and other ‘‘casual’’ laborers may                      check, credit card, or money order. If an
                                        in this rule include only the costs                     reasonably be escorted in the secure                   applicant does not have a credit card or
                                        allowable by law and OMB guidance.                      areas and thus may not need obtain a                   bank account, he or she can obtain a
                                        OMB Circular A–25.                                      TWIC. Such workers were, therefore,                    money order to pay the fee.
                                           TWIC credentials will contain                        not included in the population
                                        numerous complex technologies to                                                                               10. Implementing TWIC in Other Modes
                                        make them secure and tamper-proof.                         The final rule requires vessels,                       The NPRM stated that TSA was
                                        The process for obtaining a TWIC is                     facilities, and OCS facilities to escort               considering requiring a TWIC in other
                                        designed to ensure that the identity of                 individuals who do not hold TWICs and                  modes of transportation, and invited
                                        each TWIC holder has been verified;                     enter secure areas. The preamble now                   comments. Several commenters
                                        that a threat assessment has been                       provides affected entities with more                   supported this expansion. Such requests
                                        completed on that identity; and that                    guidance on how to comply with this                    included coordination with other
                                        each credential issued is positively                    provision and the Coast Guard plans to                 agencies to avoid negatively affecting
                                        linked to the rightful holder through the               issue a NVIC after publication of the                  mariners in later rule making processes,
                                        use of biometric technology. There are                  final rule to provide even more clarity                completion of a cost/benefit analysis to
                                        also significant operational costs                      on acceptable escort standards. The                    other transportation sectors, and
                                        associated with the TSA system and                      language in the preamble states that                   insurance of the accurate, efficient, and
                                        program support costs.                                  within non-restricted secure areas,                    reliable function of the TWIC in the
                                           Pursuant to the Chief Financial                      operators may simply monitor                           maritime sector before extension to
                                        Officers Act of 1990, TSA is required to                individuals without TWICs, while they                  other transportation sectors. Several
                                        review these fees no less than every two                must accompany individuals without                     commenters urged that TWIC be used as
                                        years. 31 U.S.C. 902(a)(8). Upon review,                TWICs in restricted areas. We anticipate               a single biometric card and a single
                                        if it is found that the fees are either too             that this guidance will provide                        background check for the entire
                                        high (i.e., total fees exceed the total cost            operators with more understanding of                   transportation sector. Commenters
                                        to provide the services) or too low (i.e.,              the requirement, and perhaps more                      stated that duplicative credentials and
                                        total fees do not cover the total costs to              flexibility in implementing it.                        clearances will still be needed because
                                        provide the services), the fee will be                     Furthermore, we have included two                   the proposed TWIC is limited to the
                                        adjusted. In addition, TSA may increase                 new provisions that may reduce the                     maritime sector. A commenter noted
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                                        or decrease the fees described in this                  economic burden of the requirement to                  that access control procedures may or
                                        regulation for inflation following                      provide escorts to individuals without                 may not differ across port facilities,
                                        publication of the final rule. If TSA                   TWICs. First, the final rule will allow                airport, rail yards, and other facilities
                                        increases or decreases the fees for this                facilities to submit to the Coast Guard                and suggested TSA invite comment on
                                        reason, TSA will publish a Notice in the                amendments to their security plans in                  this matter.

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                                           Other commenters opposed expansion                   addressed many aspects of the                          presents a risk of being a target of a
                                        of the use of TWIC, citing burdens to                   assessment.                                            transportation security incident,
                                        industry, difficulty in translating to                     The majority of commenters                          regardless of size and location, as
                                        other transportation industries, and                    discussed what they believe to be                      determined by the interim final rule
                                        potential undermining of effective                      deficiencies or inaccuracies in our                    published by the Coast Guard in 2003
                                        programs already in place. One                          assessment. Several commenters,                        (July 1, 2003, 68 FR 39243).
                                        commenter specifically opposed                          including individuals, businesses,                        In addition to claiming that the costs
                                        expansion of the TWIC program, noting                   government entities, and maritime trade                of the rule do not justify the benefits,
                                        that implementation problems and                        associations, questioned some of the                   some commenters stated that it is
                                        redundant regulatory requirements                       analytical assumptions we used to                      difficult to identify any solid benefits of
                                        would significantly impact the propane                  generate the cost estimates for the                    the proposed rule. Some commenters
                                        industry. Some commenters noted that                    NPRM. In some instances, we agreed                     alleged that the benefits outlined in the
                                        the TWIC program would create a                         with comments, and used the                            NPRM and the RIA were too vague. In
                                        competitive disadvantage for companies                  information contained in them to refine                particular, many, including the Office of
                                        that chose to ship products via vessel                  the estimates for the RIA for the final                Advocacy of the U.S. Small Business
                                        versus companies with the same                          rule. In other cases, we did not concur                Administration (SBA Office of
                                        products that ship via air or ground.                   with comments on the RIA, and                          Advocacy or Advocacy) felt that the
                                        One commenter noted that current law                    therefore did not use the assertions or                claim made by TSA and Coast Guard
                                        requires a longer look-back frame for                   claims in these comments to modify the                 that the rule would streamline
                                        airport workers than the TWIC                           assessment completed for the final rule.               commerce was not well supported in
                                        mandates, which would require a                         All comments on the original RIA were                  the RIA, especially in light of the
                                        change in the law should TWIC be                        considered as part of this rulemaking                  potentially high cost of the rule.
                                        expanded to airport workers.                            effort, and have been summarized and                      The primary benefit of the final rule
                                                                                                responded to below.                                    is increased security to vessels,
                                           While TWIC will not supplant all
                                                                                                                                                       facilities, and OCS facilities covered
                                        other credentialing or background check                 1. Whether the Benefits of the Rule                    under 33 CFR subchapter H. Under the
                                        requirements, we are working toward                     Justify the Costs                                      final rule, individuals with unescorted
                                        reducing the redundancy in background                      Although we received many                           access to secure areas of affected
                                        checks to the extent practicable. For                   comments to the public docket that                     maritime establishments must undergo a
                                        instance, the threat assessment                         supported the security goals of the rule,              security threat assessment and obtain a
                                        requirements for commercial drivers                     many individuals and businesses cited                  TWIC—a secure, biometric
                                        who hold an HME under 49 CFR part                       the potentially large economic impact of               identification credential—that vessel
                                        1572 were originally designed to                        the rule and stated that the costs of the              and facility owners/operators will use to
                                        comply with MTSA and to be identical                    rulemaking action far outweigh the                     make access control decisions. The
                                        to the requirements for a TWIC. Under                   benefits. Individuals and firms from                   Coast Guard will conduct random spot
                                        this rule, drivers who have completed                   various segments of the maritime                       checks of individuals’ credentials.
                                        TSA’s security threat assessment for an                 transportation industry, including the                    The security threat assessments
                                        HME are not be required to undergo a                    passenger vessel industry, the offshore                included in the rule will increase
                                        new threat assessment for TWIC until                    marine service industry, the inland                    security at vessels and facilities by
                                        their HME threat assessment expires.                    towing industry, and others, echoed this               identifying individuals with dangerous
                                        These drivers will be required to                       sentiment.                                             criminal histories and potential ties to
                                        provide a biometric for use on the TWIC                    Many affected entities, especially                  terrorism. And the secure, biometric
                                        and pay for enrollment services,                        operators on the inland waterways and                  credentials that will be issued under the
                                        credential costs, and appropriate                       small businesses, advanced a similar                   final rule will allow owners/operators
                                        program support costs. Similarly,                       line of reasoning, arguing that there is               and the Coast Guard to verify that
                                        individuals who have a FAST card                        not enough of a security risk to their                 individuals with unescorted access to
                                        issued by CBP will not be required to                   operations to justify the measures we                  secure areas have in fact obtained a
                                        undergo another security threat                         proposed.                                              security threat assessment. Furthermore,
                                        assessment. See 49 CFR 1572.5(e). In                       We understand that the compliance                   even without card readers, TWIC
                                        addition, Canadian and Mexican drivers                  costs of the rule represent a significant              provides greater reliability than existing
                                        who haul hazardous materials and who                    investment in security for many                        systems because it presents a uniform
                                        are required to have a background check                 individuals and businesses. We do not                  appearance with embedded features on
                                        similar to that required for U.S. drivers               dispute that the final rule may in fact                the face of the credential that make it
                                        may obtain a TWIC in order to meet that                 impose considerable costs on many                      difficult to forge or alter. We believe
                                        requirement. See 49 CFR 1572.201.                       affected entities, including small                     these benefits, in addition to the other
                                           In the future TSA may conduct                        businesses. As part of the economic                    security benefits described elsewhere,
                                        additional rulemaking to incorporate                    analysis required by E.O. 12866, we                    more than justify the costs of this rule.
                                        TWIC requirements into other modes of                   have made every attempt to include all                    In response to many comments
                                        transportation.                                         known costs in the RIA.                                received, we have revised the benefits
                                                                                                   We also firmly believe, however, that               section of the RIA for the final rule.
                                        D. Comments Related to Economic
                                                                                                the benefit of increased security to the               Originally, the RIA for the NPRM stated
                                                                                                U.S. maritime sector warrants the costs                that the proposal would enhance the
                                          In order to evaluate the impact of the                of the rule. The vessels, facilities, and              flow of commerce by streamlining the
                                        proposed rule, TSA and the Coast Guard                  OCS facilities affected by this rule                   number of credentials and access
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                                        published a Regulatory Impact                           represent some of the most important                   control procedures at U.S. seaports,
                                        Assessment (RIA) in May 2006 in                         maritime and transportation                            eliminating the need for several port
                                        support of the TWIC NPRM. The RIA                       infrastructure in the United States. Any               credentialing offices and systems, and
                                        was posted to the public docket and we                  vessel, facility or OCS facility that is               creating an interoperable credential
                                        received public comments that                           regulated under 33 CFR subchapter H                    recognizable across the maritime

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                                                         Federal Register / Vol. 72, No. 16 / Thursday, January 25, 2007 / Rules and Regulations                                          3555

                                        transportation environment. In their                    2. Underestimated Compliance Costs                     modified to incorporate the TWIC
                                        comments, many firms and individuals                      A number of commenters felt that                     process. However, most of the costs
                                        questioned the validity of these claims                 several of the compliance costs                        would be associated with biometric
                                        and provided specific examples that                     estimated in the RIA for the NPRM were                 readers. Since the requirement for
                                        contradicted our assertions that the rule               understated. Many firms, individuals,                  biometric smart card readers has been
                                        would facilitate certain business                                                                              removed from this final rule, these
                                                                                                and trade associations that commented
                                        transactions.                                                                                                  comments no longer pertain to this
                                                                                                on compliance cost estimates expressed
                                           We found these arguments compelling                                                                         rulemaking. As stated earlier, TSA and
                                                                                                similar concerns. These concerns are
                                        enough to remove the benefits to                                                                               the Coast Guard will address these
                                                                                                summarized and responded to below.
                                        commerce that we originally included                                                                           issues at a later time. At that time, we
                                        in the RIA that we published with the                   (a). Biometric Smart Card Reader and                   will reevaluate estimates, including the
                                        NPRM. After additional analysis, we                     Internet Connectivity Costs                            cost for vessel and facility owners/
                                        agree with individuals and firms who                      Several commenters stated that the                   operators to integrate new requirements
                                        questioned the benefits to commerce                     cost estimates in the RIA                              with legacy systems.
                                        afforded by the rule. We firmly believe                 underestimated the expense of                          (c). Administrative and Recordkeeping
                                        that the rule still has significant security            purchasing, installing, and maintaining                Costs
                                        benefits, a description of which still                  biometric smart card readers. Industry
                                        remains in the RIA.                                                                                               Several commenters stated that we
                                                                                                commenters, including facility owners/                 greatly underestimated the
                                           A number of commenters, including                    operators who participated in the TWIC                 administrative and recordkeeping
                                        Advocacy, referring to MTSA, stated                     Phase III Prototype, asserted that the                 burdens associated with the rule as
                                        that the law requires transportation                    hourly wage rates used to develop                      proposed in the May 2006 NPRM. Citing
                                        security cards, not smart card readers,                 installation costs were significantly                  what they perceived to be an onerous
                                        and that the benefits associated with                   understated, as were costs for                         requirement to keep ongoing records of
                                        these requirements do not justify the                   maintaining and replacing sensitive                    individuals accessing secure areas,
                                        costs. Individuals and firms                            electronic equipment that tends to                     many firms and individuals felt the
                                        representing many sectors of the                        degrade quickly in the marine                          estimates for the recordkeeping
                                        maritime transportation industry                        environment. Other commenters,                         provision to be too low.
                                        suggested that the requirements in the                  including the SBA Office of Advocacy,                     Moreover, many comments received
                                        May 2006 proposal, including the card                   expressed concerns over the availability               from industry viewed the cost
                                        reader requirements, exceeded the                       and reliability of card reader                         associated with developing the TWIC
                                        statutory authority of TSA and the Coast                technology. Furthermore, many                          addenda to vessel and facility security
                                        Guard.                                                  commenters declared that the cost of                   plans as understated. In discussing the
                                           MTSA provides that DHS must issue                    internet connectivity necessary to                     requirement that vessel and facility
                                        biometric transportation security cards                 comply with the rule as proposed in the                owners/operators must submit TWIC
                                        and ‘‘prescribe regulations to prevent an               NPRM was excluded from the RIA.                        addenda to their security plans, many in
                                        individual from entering’’ a secure area                  Although we appreciate all comments                  industry opined that this task would
                                        of a vessel or facility ‘‘unless the                    on our analytical assumptions and cost                 involve several days of analysis that was
                                        individual holds a transportation                       estimates, these particular comments are               not accounted for in the RIA for the
                                        security card’’ or ‘‘is accompanied by                  no longer germane to this rulemaking                   NPRM.
                                        another individual who holds a                          because we have removed card reader                       The final rule will not require the
                                        transportation security card.’’ 46 U.S.C.               requirements from the final rule.                      recordkeeping measures or TWIC
                                        70105(a). It is difficult to conceive of a              Therefore, we have also removed all                    addenda as proposed in the NPRM. As
                                        cost-effective method to satisfy this                   card reader cost estimates from the RIA.               a result, we have removed the estimated
                                        section of MTSA that does not require                                                                          cost of these requirements from the RIA
                                        an access control device to read the                    (b). Integration With Legacy Systems
                                                                                                                                                       for the final rule. If we include these
                                        biometric credential. Even assuming an                     One commenter asserted that the                     requirements in a future rulemaking, we
                                        argument can be made successfully that                  technical requirements included in the                 will reevaluate the cost estimates
                                        MTSA does not authorize or require the                  NPRM presented serious challenges for                  included in the RIA for the NPRM.
                                        use of biometric smart card readers,                    other affected government entities,
                                        TSA and the Coast Guard have broad                      which may have existing access control                 (d). Opportunity Costs of Travel to
                                        statutory authority to assess and                       systems. This commenter claimed that                   Enrollment Centers
                                        regulate security in the national                       TSA and the Coast Guard did not                           Many individuals and firms stated
                                        transportation system. We believe that                  consider the integration of TWIC with                  that the travel time estimate included in
                                        the provisions originally proposed in                   other requirements, such as port                       the RIA was too low, thereby
                                        the NPRM, including the card reader                     authorities that operate mass transit                  underestimating the opportunity cost of
                                        requirements, fall well within the                      systems or airports, in the cost estimates             traveling to and from TWIC enrollment
                                        statutory authority vested in both                      in the RIA. The commenter went on to                   centers. In their comments, individuals
                                        agencies by Congress.                                   state that these agencies may potentially              and firms provided time estimates for
                                           As noted elsewhere, however, card                    be required to replace large legacy                    employees to travel to enrollment
                                        reader requirements will be deferred                    systems to incorporate the TWIC, and to                centers that ranged anywhere from three
                                        until the readers have been piloted at 5                maintain internal consistency and                      hours to several days.
                                        locations, and the public has had                       eliminate the expensive redundancy                        Commenters who live in remote
                                        another opportunity to comment, as per                  associated with credentialing their                    locations, such as Southeast Alaska,
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                                        the SAFE Port Act. As explained in                      workers.                                               were particularly concerned that the
                                        other parts of this document, TSA and                      We realize that some affected                       estimate in the RIA did not accurately
                                        the Coast Guard will address technology                 esta