From: Subject: FR Doc E8-10232 Date: Thu, 8 May 2008 09:43:21 -0400 MIME-Version: 1.0 Content-Type: text/html; charset="Windows-1252" Content-Transfer-Encoding: quoted-printable Content-Location: http://edocket.access.gpo.gov/2008/E8-10232.htm X-MimeOLE: Produced By Microsoft MimeOLE V6.00.2900.3198 FR Doc E8-10232 
[Federal Register: May 7, 2008 (Volume 73, Number 89)]
[Rules and Regulations]              =20
[Page 25562-25566]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Parts 101, 104, 105, and 106

46 CFR Parts 10, 12, and 15

Transportation Security Administration

49 CFR Part 1572

[Docket Nos. TSA-2006-24191; USCG-2006-24196]
RIN 1652-AA41

=20
Transportation Worker Identification Credential (TWIC)=20
Implementation in the Maritime Sector; Hazardous Materials Endorsement=20
for a Commercial Driver's License

AGENCY: United States Coast Guard, Transportation Security=20
Administration; DHS.

ACTION: Final rule; extension of compliance date.

-----------------------------------------------------------------------

SUMMARY: The Department of Homeland Security (DHS), through the United=20
States Coast Guard (Coast Guard) and the Transportation Security=20
Administration (TSA), issues this final rule to realign the compliance=20
date set forth in the Transportation Worker Identification Credential=20
(TWIC) final rule. Under the new final compliance date mariners must=20
obtain a TWIC no later than April 15, 2009. This final rule also=20
extends to April 15, 2009, the final date by which owners and operators=20
of vessels, facilities, and outer continental shelf facilities, who=20
have not otherwise been required to implement access control procedures=20
utilizing TWIC on an earlier date, must implement those procedures.

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

ADDRESSES: Comments and material received from the public, as well as=20
documents mentioned in this preamble as being available in the docket,=20
are part of dockets TSA-2006-24191 and USCG-2006-24196, and are=20
available for inspection or copying at the Docket Management Facility,=20
U.S. Department of Transportation, West Building Ground Floor, Room=20
W12-140, 1200 New Jersey Avenue, SE., Washington, DC 20590, between 9=20
a.m. and 5 p.m., Monday through Friday, except Federal holidays. You=20
may also find this docket on the Internet at http://fr=
webgate.access.gpo.gov/cgi-bin/leaving.cgi?from=3DleavingFR.html&log=3D=
linklog&to=3Dhttp://www.regulations.gov.

FOR FURTHER INFORMATION CONTACT: If you have questions on the TSA=20
portions

[[Page 25563]]

of this rule, call Christine Beyer, telephone (571) 227-2657. If you=20
have questions on the Coast Guard portions of this rule, call LCDR=20
Jonathan Maiorine, telephone 1-877-687-2243. If you have questions on=20
viewing the docket, call Renee V. Wright, Program Manager, Docket=20
Operations, telephone 202-493-0402.

SUPPLEMENTARY INFORMATION:=20

I. Background and Regulatory History

    On May 22, 2006, the Department of Homeland Security (DHS) through=20
the United States Coast Guard (Coast Guard) and the Transportation=20
Security Administration (TSA) published a joint notice of proposed=20
rulemaking (NPRM) entitled ``Transportation Worker Identification=20
Credential (TWIC) Implementation in the Maritime Sector; Hazardous=20
Materials Endorsement for a Commercial Driver's License'' in the=20
Federal Register (71 FR 29396) (hereinafter referred to as the ``TWIC=20
NPRM''). The TWIC NPRM proposed requirements related to the TWIC=20
program, including compliance dates for mariners to obtain and possess=20
a TWIC, and for vessels, facilities and outer continental shelf=20
facilities to operate in accordance with TWIC provisions. Specifically,=20
DHS proposed that vessels and facilities would be required to be in=20
compliance with the requirements of a TWIC final rule between twelve=20
(12) and eighteen (18) months following the publication date of the=20
final rule, depending on whether enrollment for the port in which the=20
vessel or facility is operating had been completed. 71 FR at 29409,=20
29412.
    On January 25, 2007, after a 45-day comment period and four public=20
meetings, the Coast Guard and TSA published a joint final rule under=20
the same title (72 FR 3492) (hereinafter referred to as the ``TWIC=20
joint final rule''). The TWIC joint final rule discussed the comments=20
received on the proposed rule, including a discussion of all comments=20
related to the proposed TWIC implementation timeline and the=20
requirements for mariners, vessels, facilities and outer continental=20
shelf facilities to comply with TWIC procedures. It also made changes=20
to the rule text in response to those comments. The TWIC joint final=20
rule, at 33 CFR 104.115, revised the compliance dates for vessel owners=20
and operators to provide vessel owners or operators 20 months from the=20
publication date of the final rule, up to and including September 25,=20
2008, to implement the TWIC access control provisions. 72 FR 3492,=20
3499. The rule tied the compliance date for facilities and outer=20
continental shelf facilities to completion of the initial enrollment in=20
the Captain of the Port (COTP) zone where the facility is located. See=20
33 CFR 105.115 and 106.110. This date would vary for each COTP zone as=20
announced by the Coast Guard through publication of a notice in the=20
Federal Register. Under the final rule, the Coast Guard would publish=20
these notices at least 90 days in advance of the compliance date, but=20
the final compliance date for all COTPs would not be later than=20
September 25, 2008. Finally, the latest date by which mariners would be=20
expected to obtain and possess a TWIC, as set forth in 33 CFR 101.514,=20
would also be September 25, 2008. 72 FR at 3499.

II. Discussion of Change

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

[[Page 25564]]

    These amendments may be found at 33 CFR 101.514, 104.115, 105.115,=20
106.110; 46 CR 10.113, 12.01-11, and 15.415; and 49 CFR 1572.19.

III. Regulatory Requirements

A. Administrative Procedure Act

    DHS is issuing this final rule, for immediate implementation,=20
without providing the public prior notice and the opportunity for=20
comment. Sections 553(b) and (d) of the Administrative Procedure Act=20
(APA) (5 U.S.C. 553) authorize agencies to dispense with certain notice=20
procedures for rules when they find good cause to do so. Under section=20
553(b), the requirements of notice and opportunity for comment do not=20
apply when the agency for good cause finds that those procedures are=20
``impracticable, unnecessary, or contrary to the public interest.''=20
Section 553(d) allows an agency, upon finding good cause, to make a=20
rule effective immediately upon publication in the Federal Register.
    Providing an opportunity for prior notice and public comment on the=20
extensions of the compliance dates in the TWIC final rule would be=20
unnecessary and contrary to the public interest. As discussed above,=20
without the change in the full compliance date, it would not be=20
possible for all regulated parties to comply with the TWIC regulations.=20
Even if it were possible for all persons to enroll by the current=20
compliance date (which, as noted above, is not realistically possible),=20
it would not be possible for TSA to complete full security threat=20
assessments on all of those individuals in advance of the September 25,=20
2008 date.
    Further, because this final rule relieves a restriction by=20
providing regulated entities more time to comply with the regulatory=20
requirements, DHS finds that this rule shall become effective=20
immediately upon publication of this final rule in the Federal=20
Register. 5 U.S.C. 553(d).

B. Executive Order 12866 (Regulatory Planning and Review)

    This final rule is not a significant regulatory action under=20
section 3(f) of Executive Order 12866. This rule, therefore, is not=20
subject to review by the Office of Management and Budget. We expect the=20
economic impact of this rule to be minimal and a full regulatory=20
analysis unnecessary.
    This rule realigns the final compliance date for implementing TWIC.=20
To the extent that deadlines have changed, affected parties may incur=20
some TWIC-related costs later rather than sooner.
    We anticipate that these changes will not substantially increase=20
TWIC-related compliance costs to the affected entities and in most=20
cases will provide advantages through deadline extensions.

C. Small Entities

    Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have=20
considered whether this rule would have a significant economic impact=20
on a substantial number of small entities. The term ``small entities''=20
comprises small businesses, not-for-profit organizations that are=20
independently owned and operated and are not dominant in their fields,=20
and governmental jurisdictions with populations of less than 50,000.
    We do not expect this rule to substantially increase TWIC-related=20
compliance costs, as it realigns a deadline. The Coast Guard and TSA=20
certify under 5 U.S.C. 605(b) that this final rule will not have a=20
significant economic impact on a substantial number of small entities.

D. Assistance for Small Entities

    Under section 213(a) of the Small Business Regulatory Enforcement=20
Fairness Act of 1996 (Pub. L. 104-121), we want to assist small=20
entities in understanding the rule so that they can better evaluate its=20
effects on them and participate in the rulemaking.
    Small businesses may send comments on the actions of Federal=20
employees who enforce, or otherwise determine compliance with, Federal=20
regulations to the Small Business and Agriculture Regulatory=20
Enforcement Ombudsman and the Regional Small Business Regulatory=20
Fairness Boards. The Ombudsman evaluates these actions annually and=20
rates each agency's responsiveness to small business. If you wish to=20
comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR=20
(1-888-734-3247).

E. Collection of Information

    This rule calls for no new collection of information under the=20
Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).

F. Federalism

    A rule has implications for federalism under Executive Order 13132,=20
Federalism, if it has a substantial direct effect on State or local=20
governments and would either preempt State law or impose a substantial=20
direct cost of compliance on them. We have analyzed this rule under=20
that Order and have determined that it does not have implications for=20
federalism.

G. Unfunded Mandates Reform Act

    The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538)=20
requires Federal agencies to assess the effects of their discretionary=20
regulatory actions. In particular, the Act addresses actions that may=20
result in the expenditure by a State, local, or tribal government, in=20
the aggregate, or by the private sector of $100,000,000 or more in any=20
one year. Though this rule will not result in such an expenditure, we=20
do discuss the effects of this rule elsewhere in this preamble.

H. Taking of Private Property

    This rule will not effect a taking of private property or otherwise=20
have taking implications under Executive Order 12630, Governmental=20
Actions and Interference with Constitutionally Protected Property=20
Rights.

I. Civil Justice Reform

    This rule meets applicable standards in sections 3(a) and 3(b)(2)=20
of Executive Order 12988, Civil Justice Reform, to minimize litigation,=20
eliminate ambiguity, and reduce burden.

J. Protection of Children

    We have analyzed this rule under Executive Order 13045, Protection=20
of Children from Environmental Health Risks and Safety Risks. This rule=20
is not an economically significant rule and does not create an=20
environmental risk to health or risk to safety that may=20
disproportionately affect children.

K. Indian Tribal Governments

    This rule does not have tribal implications under Executive Order=20
13175, Consultation and Coordination with Indian Tribal Governments,=20
because it does not have a substantial direct effect on one or more=20
Indian tribes, on the relationship between the Federal Government and=20
Indian tribes, or on the distribution of power and responsibilities=20
between the Federal Government and Indian tribes.

L. Energy Effects

    We have analyzed this rule under Executive Order 13211, Actions=20
Concerning Regulations That Significantly Affect Energy Supply,=20
Distribution, or Use. We have determined that it is not a ``significant=20
energy action'' under that order because it is not a ``significant=20
regulatory action'' under Executive Order 12866 and is not likely to=20
have a significant adverse effect on the supply, distribution, or use=20
of energy. The Administrator of the Office of Information and=20
Regulatory Affairs has not designated it as a significant energy=20
action. Therefore, it does not

[[Page 25565]]

require a Statement of Energy Effects under Executive Order 13211.

M. Technical Standards

    The National Technology Transfer and Advancement Act (NTTAA) (15=20
U.S.C. 272 note) directs agencies to use voluntary consensus standards=20
in their regulatory activities unless the agency provides Congress,=20
through the Office of Management and Budget, with an explanation of why=20
using these standards would be inconsistent with applicable law or=20
otherwise impractical. Voluntary consensus standards are technical=20
standards (e.g., specifications of materials, performance, design, or=20
operation; test methods; sampling procedures; and related management=20
systems practices) that are developed or adopted by voluntary consensus=20
standards bodies.
    This rule does not use technical standards. Therefore, we did not=20
consider the use of voluntary consensus standards.

N. Environment

    The provisions of this rule have been analyzed under the Department=20
of Homeland Security (DHS) Management Directive (MD) 5100.1,=20
Environmental Planning Program, which is the DHS policy and procedures=20
for implementing the National Environmental Policy Act (NEPA), and=20
related Executive Orders and requirements. The changes being made by=20
this final rule have no effect on the environmental analysis that=20
accompanied the promulgation of the original TWIC final rule. That=20
analysis can be found at 72 FR 3576-3577.
    Accordingly, there are no extraordinary circumstances presented by=20
this rule that would limit the use of a CATEX under MD 5100.1, Appendix=20
A, paragraph 3.2. The implementation of this rule, like the=20
implementation of the original TWIC final rule, is categorically=20
excluded under the following categorical exclusions (CATEX) listed in=20
MD 5100.1, Appendix A, Table 1: CATEX A1 (personnel, fiscal, management=20
and administrative activities); CATEX A3 (promulgation of rules,=20
issuance of rulings or interpretations); and CATEX A4 (information=20
gathering, data analysis and processing, information dissemination,=20
review, interpretation and development of documents). CATEX B3=20
(proposed activities and operations to be conducted in an existing=20
structure that would be compatible with and similar in scope to ongoing=20
functional uses) and CATEX B 11 (routine monitoring and surveillance=20
activities that support law enforcement or homeland security and=20
defense operations) would also be applicable.

List of Subjects

33 CFR Part 101

    Harbors, Maritime security, Reporting and recordkeeping=20
requirements, Security measures, Vessels, Waterways.

33 CFR Part 104

    Incorporation by reference, Maritime security, Reporting and=20
recordkeeping requirements, Security measures, Vessels.

33 CFR Part 105

    Facilities, Maritime security, Reporting and recordkeeping=20
requirements, Security measures.

33 CFR Part 106

    Facilities, Maritime security, Outer Continental Shelf, Reporting=20
and recordkeeping requirements, Security measures.

46 CFR Part 10

    Penalties, Reporting and recordkeeping requirements, Schools,=20
Seamen.

46 CFR Part 12

    Penalties, Reporting and recordkeeping requirements, Seamen.

46 CFR Part 15

    Reporting and recordkeeping requirements, Seamen, Vessels.

49 CFR Part 1572

    Appeals, Commercial drivers license, Criminal history background=20
checks, Explosives, Facilities, Hazardous materials, Incorporation by=20
reference, Maritime security, Motor carriers, Motor vehicle carriers,=20
Ports, Seamen, Security measures, Security threat assessment, Vessels,=20
Waivers.

0
For the reasons discussed in the preamble, the Coast Guard amends 33=20
CFR parts 101, 104, 105, and 106, and 46 CFR parts 10, 12, and 15 and=20
the Transportation Security Administration amends 49 CFR part 1572 as=20
follows:

Title 33--Navigation and Navigable Waters

CHAPTER I--COAST GUARD

PART 101--MARITIME SECURITY: GENERAL

0
1. The authority citation for part 101 continues to read as follows:

    Authority: 33 U.S.C. 1226, 1231; 46 U.S.C. Chapter 701; 50=20
U.S.C. 191, 192; Executive Order 12656, 3 CFR 1988 Comp., p. 585; 33=20
CFR 1.05-1, 6.04-11, 6.14, 6.16, and 6.19; Department of Homeland=20
Security Delegation No. 0170.1.


Sec.  101.514  [Revised]

0
2. Revise Sec.  101.514(e) by removing the date ``September 25, 2008''=20
and adding in its place the date ``April 15, 2009''.

PART 104--MARITIME SECURITY: VESSELS

0
3. The authority citation for part 104 continues to read as follows:

    Authority: 33 U.S.C. 1226, 1231; 46 U.S.C. Chapter 701; 50=20
U.S.C. 191; 33 CFR 1.05-1, 6.04-11, 6.14, 6.16, and 6.19; Department=20
of Homeland Security Delegation No. 0170.1.


Sec.  104.115  [Revised]

0
4. Revise Sec.  104.115(d) by removing the date ``September 25, 2008''=20
and adding in its place the date ``April 15, 2009''.

PART 105--MARITIME SECURITY: FACILITIES

0
5. The authority citation for part 105 continues to read as follows:

    Authority: 33 U.S.C. 1226, 1231; 46 U.S.C. 70103; 50 U.S.C. 191;=20
33 CFR 1.05-1, 6.04-11, 6.14, 6.16, and 6.19; Department of Homeland=20
Security Delegation No. 0170.1.


Sec.  105.115  [Revised]

0
6. Revise Sec.  105.115(e) by removing the date ``September 25, 2008''=20
and adding in its place the date ``April 15, 2009''.

PART 106--MARITIME SECURITY: OUTER CONTINENTAL SHELF (OCS)=20
FACILITIES

0
7. The authority citation for part 106 continues to read as follows:

    Authority: 33 U.S.C. 1226, 1231; 46 U.S.C. Chapter 701; 50=20
U.S.C. 191; 33 CFR 1.05-1, 6.04-11, 6.14, 6.16, and 6.19; Department=20
Of Homeland Security Delegation No. 0170.1.


Sec.  106.110  [Revised]

0
8. Revise Sec.  106.110(e) by removing the date ``September 25, 2008''=20
and adding in its place the date ``April 15, 2009''.

Title 46--Shipping

CHAPTER I--COAST GUARD

Subchapter B--Merchant Marine Officers and Seamen

PART 10--LICENSING OF MARITIME PERSONNEL

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

    Authority: 14 U.S.C. 633; 31 U.S.C. 9701; 46 U.S.C. 2101, 2103,=20
and 2110; 46 U.S.C. chapter 71; 46 U.S.C. 7502, 7505, 7701, and=20
8906; Executive Order 10173; Department of Homeland Security=20
Delegation No. 0170.1. Section 10.107 is also issued under the=20
authority of 44 U.S.C. 3507.

[[Page 25566]]

Sec.  10.113  [Revised]

0
10. Revise Sec.  10.113 by removing the date ``September 25, 2008'' and=20
adding in its place the date ``April 15, 2009''.

PART 12--CERTIFICATION OF SEAMEN

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

    Authority: 31 U.S.C. 9701; 46 U.S.C. 2101, 2103, 2110, 7301,=20
7302, 7503, 7505, 7701, and 70105; Department of Homeland Security=20
Delegation No. 0170.1.


Sec.  12.01-11  [Revised]

0
12. Revise Sec.  12.01-11 by removing the date ``September 25, 2008''=20
and adding in its place the date ``April 15, 2009''.

PART 15--MANNING REQUIREMENTS

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

    Authority: 46 U.S.C. 2101, 2103, 3306, 3703, 8101, 8102, 8104,=20
8105, 8301, 8304, 8502, 8503, 8701, 8702, 8901, 8902, 8903, 8904,=20
8905(b), 8906, 9102, and 8103; and Department of Homeland Security=20
Delegation No. 0170.1.


Sec.  15.415  [Revised]

0
14. Revise Sec.  15.415 by removing the date ``September 25, 2008'' and=20
adding in its place the date ``April 15, 2009''.

Title 49--Transportation

CHAPTER XII--TRANSPORTATION SECURITY ADMINISTRATION

Subchapter D--Maritime and Land Transportation Security

PART 1572--CREDENTIALING AND SECURITY THREAT ASSESSMENTS

0
15. The authority citation for part 1572 continues to read as follows:

    Authority: 46 U.S.C. 70105; 49 U.S.C. 114, 5103a, 40113, and=20
46105; 18 U.S.C. 842, 845; 6 U.S.C. 469.


Sec.  1572.19  [Revised]

0
16. Revise Sec.  1572.19(b) by removing the date ``September 25, 2008''=20
in the two places where it appears, and adding in each place the date=20
``April 15, 2009''.

    Dated: May 2, 2008.
Brian M. Salerno,
Rear Admiral, U.S. Coast Guard, Assistant Commandant for Marine Safety,=20
Security & Stewardship.
Gale Rossides,
Deputy Administrator, Transportation Security Administration.
 [FR Doc. E8-10232 Filed 5-6-08; 8:45 am]

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