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

DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Parts 101, 103, 104, 105, 106, 125 and 46 CFR Parts 10, 12, 15 Transportation Security Administration 49 CFR Parts 1515, 1540, 1570, 1572 [Docket Nos. TSA-2006-24191; Coast Guard-2006-24196; TSA Amendment Nos. 1515-(New), 1540-8, 1570-2, 1572-7]

RIN 1652-AA41

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

AGENCY:

Transportation Security Administration; United States Coast Guard, DHS.

ACTION:

Final rule; request for comments.

SUMMARY:

The Department of Homeland Security (DHS), through the Transportation Security Administration (TSA) and the United States Coast Guard (Coast Guard), issues this final rule to further secure our Nation's ports and modes of transportation. This rule implements the Maritime Transportation Security Act of 2002 and the Security and Accountability for Every Port Act of 2006. Those statutes establish requirements regarding the promulgation of regulations that require credentialed merchant mariners and workers with unescorted access to secure areas of vessels and facilities to undergo a security threat assessment and receive a biometric credential, known as a Transportation Worker Identification Credential (TWIC). After DHS publishes a notice announcing the compliance date for each Captain of the Port (COTP) zone, persons without TWICs will not be granted unescorted access to secure areas at affected maritime facilities. Those seeking unescorted access to secure areas aboard affected vessels, and all Coast Guard credentialed merchant mariners must possess a TWIC by September 25, 2008. This final rule will enhance the security of ports by requiring such security threat assessments of persons in secure areas and by improving access control measures to prevent those who may pose a security threat from gaining unescorted access to secure areas of ports.

With this final rule, the Coast Guard amends its regulations on vessel and facility security to require the use of the TWIC as an access control measure. The Coast Guard also amends its merchant mariner regulations to incorporate the requirement to obtain a TWIC. This final rule does not include the card reader requirements for owners and operators set forth in the Notice of Proposed Rulemaking (NPRM) issued in this matter on May 22, 2006. Such requirements will be addressed in a future rulemaking. Although the card reader requirements are not being implemented at this time, the Coast Guard will institute periodic unannounced checks to confirm the identity of the holder of the TWIC.

With this final rule, TSA applies its security threat assessment standards that currently apply to commercial drivers authorized to transport hazardous materials in commerce to merchant mariners and workers who require unescorted access to secure areas on vessels and at maritime facilities. This final rule amends TSA regulations in a number of ways. To minimize redundant background checks of workers, TSA amends the threat assessment standards to include a process by which TSA determines if a security threat assessment conducted by another governmental agency or by TSA for another program is comparable to the standards in this rule. TSA amends the qualification standards by changing the list of crimes that disqualify an individual from holding a TWIC or a hazardous materials endorsement.

TSA expands the appeal and waiver provisions to apply to TWIC applicants and air cargo employees who undergo a security threat assessment. These modifications include a process for the review of adverse waiver decisions and certain disqualification cases by an administrative law judge (ALJ). TSA also extends the time period in which applicants may apply for an appeal or waiver.

Finally, this rule establishes the user fee for the TWIC and invites comment on one component of the fee, the card replacement fee.

Under this rule, TSA will begin issuing first generation TWIC cards at initial port deployment locations. These TWIC cards will not initially support contactless biometric operations, but the TWIC cards will be functional with certain existing access control systems in use at ports today.

TSA and the Coast Guard have established a working group, comprised of members of the maritime and technology industries, through the National Maritime Security Advisory Committee (NMSAC), a federal advisory committee to the Coast Guard. This working group, in consultation with the National Institute for Standards and Technology (NIST), is tasked with recommending the contactless biometric software specification for TWIC cards.

TSA will publish a notice detailing the draft contactless biometric software specification for TWIC cards no later than the date by which it publishes the final TWIC fee as required by this Rule. Currently those notices are expected to be published in February 2007. TSA will subsequently publish a final specification for TWIC contactless biometric software functionality and the associated specifications for TWIC card readers. TSA plans also to write electronically the contactless biometric software application to all issued TWIC cards after publication of this specification. After initial field testing, this additional contactless biometric function will be included with all TWIC cards produced after publication of the contactless biometric software specification.

Although this rule goes into effect on March 26, 2007, the requirements to hold a TWIC, and to restrict access to secure areas of a facility or OCS facility, will be effective only after the regulated party is notified by DHS. These notifications will be published in the

Federal Register

and will require compliance on a COTP by COTP basis. Those seeking unescorted access to secure areas aboard affected vessels, and all Coast Guard credentialed merchant mariners must possess a TWIC by September 25, 2008.

DATES:

Effective Date:

This rule is effective March 26, 2007.

Comment Date:

Comments with respect to the Card Replacement Fee must be submitted by February 26, 2007.

ADDRESSES:

Comments and material received from the public, as well as documents mentioned in this preamble as being available in the docket, are part of dockets TSA-2006-24191 and Coast Guard-2006-24196 and are available for inspection or copying at the Docket Management Facility, U.S. Department of Transportation, room PL-401, 400 Seventh Street SW., Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. You may also find this docket on the Internet at

http://dms.dot.gov.

You may submit comments identified by docket number TSA-2006-24191 to the Docket Management Facility at the U.S. Department of Transportation. To avoid duplication, please use only one of the following methods:

(1)

Web Site:

http://dms.dot.gov.

(2)

Mail:

Docket Management Facility, U.S. Department of Transportation, 400

Seventh Street SW., Room PL-401, Washington, DC 20590-0001.

(3)

Fax:

202-493-2251.

(4)

Delivery:

Room PL-401 on the Plaza level of the Nassif Building, 400 Seventh Street SW., Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The telephone number is 202-366-9329.

(5)

Federal eRulemaking Portal:

http://www.regulations.gov.

See

SUPPLEMENTARY INFORMATION

for format and other information about comment submissions.

FOR FURTHER INFORMATION CONTACT:

For questions related to TSA's standards: Greg Fisher, Transportation Security Administration, TSA-19, 601 South 12th Street, Arlington, VA 22202-4220, TWIC Program, (571) 227-4545; e-mail:

credentialing@dhs.gov.

For legal questions: Christine Beyer, TSA-2, Transportation Security Administration, 601 South 12th Street, Arlington, VA 22202-4220; telephone (571) 227-2657; facsimile (571) 227-1380; e-mail

Christine.Beyer@dhs.gov.

For questions concerning the Coast Guard provisions of the TWIC rule: LCDR Jonathan Maiorine, Commandant (G-PCP-2), United States Coast Guard, 2100 Second Street, SW., Washington, DC 20593; telephone 1-877-687-2243.

For questions concerning viewing or submitting material to the docket: Renee V. Wright, Program Manager, Docket Management System, U.S. Department of Transportation, Room Plaza 401, 400 Seventh Street, SW., Washington, DC 20590-0001; telephone (202) 493-0402.

SUPPLEMENTARY INFORMATION:

Comments Invited

TSA invites comment on one provision of the rule, the Card Replacement Fee, as discussed in section I under Fees and section VI of this preamble. See

ADDRESSES

above for information on where to submit comments. With each comment, please include your name and address, identify the docket number at the beginning of your comments, and give the reason for each comment. Please explain the reason for any recommended change and include supporting data. You may submit comments and material electronically, in person, by mail, or fax as provided under

ADDRESSES,

but please submit your comments and material by only one means. If you submit comments by mail or delivery, submit them in an unbound format, no larger than 8.5 by 11 inches, suitable for copying and electronic filing.

If you want TSA to acknowledge receipt of comments submitted by mail, include with your comments a self-addressed, stamped postcard on which the docket number appears. We will stamp the date on the postcard and mail it to you.

TSA will file in the public docket all comments received by TSA, except for comments containing confidential information and sensitive security information (SSI)

1

, TSA will consider all comments received on or before the closing date for comments and will consider comments filed late to the extent practicable. The docket is available for public inspection before and after the comment closing date.

1

“Sensitive Security Information” or “SSI” is information obtained or developed in the conduct of security activities, the disclsoure of which would constitute an unwarranted invasion of privacy, reveal trade secrets or privileged or confidential information, or be detrimental to the security of transportation. The protection of SSI is governed by 49 CFR part 1520.

Handling of Confidential or Proprietary Information and Sensitive Security Information (SSI) Submitted in Public Comments

Do not submit comments that include trade secrets, confidential commercial or financial information, or SSI to the public regulatory docket. Please submit such comments separately from other comments on the rulemaking. Comments containing this type of information should be appropriately marked as containing such information and submitted by mail to the address listed in the

FOR FURTHER INFORMATION CONTACT

section. Upon receipt of such comments, TSA will not place the comments in the public docket and will handle them in accordance with applicable safeguards and restrictions on access. TSA will hold them in a separate file to which the public does not have access, and place a note in the public docket that TSA has received such materials from the commenter. If TSA receives a request to examine or copy this information, TSA will treat it as any other request under the Freedom of Information Act (FOIA) (5 U.S.C. 552) and the Department of Homeland Security's (DHS's) FOIA regulation found in 6 CFR part 5.

Reviewing Comments in the Docket

Please be aware that anyone is able to search the electronic form of all comments received into any of our dockets by the name of the individual submitting the comment (or signing the comment, if submitted on behalf of an association, business, labor union, etc.). You may review the applicable Privacy Act Statement published in the

Federal Register

on April 11, 2000 (65 FR 19477), or you may visit

http://dms.dot.gov.

You may review the comments in the public docket by visiting the Dockets Office between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The Dockets Office is located on the plaza level of the Nassif Building at the Department of Transportation address, previously provided under

ADDRESSES.

Also, you may review public dockets on the Internet at

http://dms.dot.gov.

Availability of Rulemaking Document

You can get an electronic copy of this document as well as other documents associated with this rulemaking on the Internet by—

(1) Searching the Department of Transportation's electronic Docket Management System (DMS) web page (

http://dms.dot.gov/search

);

(2) Accessing the Government Printing Office's web page at

http://www.gpoaccess.gov/fr/index.html;

or

(3) Visiting TSA's Security Regulations web page at

http://www.tsa.gov

and accessing the link for “Research Center” at the top of the page.

Abbreviations and Terms Used in This Document

ALJ—Administrative Law Judge

AMS—Area Maritime Security

ASP—Alternative Security Program

CBP—Bureau of Customs and Border Protection

CDC—Certain Dangerous Cargo

CDL—Commercial drivers license

CDLIS—Commercial drivers license information system

CHRC—Criminal history records check

CJIS—Criminal Justice Information Services Division

COR—Certificate of Registry

COTP—Captain of the Port

DHS—Department of Homeland Security

DOJ—Department of Justice

DOT—Department of Transportation

FBI—Federal Bureau of Investigation

FMCSA—Federal Motor Carrier Safety Administration

FMSC—Federal Maritime Security Coordinator

FSP—Facility Security Plan

HME—Hazardous materials endorsement

HSA—Homeland Security Act

HSPD 12—Homeland Security Presidential Directive 12

MARSEC—Maritime Security

MMD—Merchant Mariner's Document

MSC—Marine Safety Center

MTSA—Maritime Transportation Security Act

NIST—National Institute of Standards and Technology

NPRM—Notice of Proposed Rulemaking

NVIC—Navigation and Vessel Inspection Circular

OCS—Outer Continental Shelf

REC—Regional Examination Center

SAFETEA-LU—Safe, Accountable, Flexible, Efficient Transportation Equity Act—A Legacy for Users

STCW—International Convention on Standards of Training, Certification, and Watchkeeping for Seafarers, 1978, as amended

TSA—Transportation Security Administration

TPS—Temporary Protected Status

TWIC—Transportation Worker Identification Credential

VSP—Vessel Security Plan

Table of Contents

I. Background

II. Final Rule

A. Coast Guard Provisions

B. TSA Provisions

C. Changes From NPRM

D. Anticipated Future Notices and Rulemaking

E. Summary of TWIC Process under the Final Rule

F. SAFE Port Act of 2006

III. Discussion of Comments

A. Requests for Extension of Comment Period and Additional Public Meetings

B. Coast Guard Provisions

1. Definitions

2. General Comments on Applicability

3. Coast Guard Roles

4. Owner/operator Requirements

5. Requirements for Security Officers and Personnel

6. Recordkeeping/Tracking Persons on Vessels/Security Incident Procedures

7. Reader Requirements/Biometric Verification/TWIC Validation Procedures

8. Access Control Issues

9. TWIC Addendum

10. Compliance Dates

11. General Compliance Issues

12. Additional Requirements—Cruise Ships

13. Additional Requirements—Cruise Ship Terminals

14. Additional Requirements—CDC Facilities

15. Additional Requirements—Barge Fleeting Facilities

16. Miscellaneous

C. TSA Provisions

1. Technology Concerns

2. Enrollment Issues

3. Appeal and Waiver Issues

4. TSA Inspection

5. Security Threat Assessment

6. Immigration Status

7. Mental Incapacity

8. TWIC Expiration and Renewal Periods

9. Fees for TWIC

10. Implementing TWIC in Other Modes

D. Comments Relating to Economic Issues

E. Comments Beyond the Scope of the Rule

IV. Advisory Committee Recommendations and Responses

V. Rulemaking Analyses and Notices

A. Regulatory Planning and Review (Executive Order 12866)

B. Small Entities

C. Assistance for Small Entities

D. Collection of Information

E. Federalism (Executive Order 13132)

F. Unfunded Mandates Reform Act

G. Taking of Private Property

H. Civil Justice Reform

I. Protection of Children

J. Indian Tribal Governments

K. Energy Effects

L. Technical Standards

M. Environment

VI. Solicitation of Comments

I. Background

The Department of Homeland Security (DHS), through the United States Coast Guard (Coast Guard) and the Transportation Security Administration (TSA), issues this final rule pursuant to the Maritime Transportation Security Act (MTSA), Pub. L. 107-295, 116 Stat. 2064 (November 25, 2002), and the Security and Accountability for Every Port Act of 2006 (SAFE Port Act), Pub. L. 109-347 (October 13, 2006). Section 102 of MTSA (46 U.S.C. 70105) requires DHS to issue regulations to prevent individuals from entering secure areas of vessels or MTSA-regulated port facilities unless such individuals hold transportation security cards issued under section 102 and are authorized to be in the secure areas. An individual who does not hold the required transportation security card, but who is otherwise authorized to be in the secure area in accordance with the facility's security plan, must be accompanied by another individual who holds a transportation security card. MTSA also requires all credentialed merchant mariners to hold these transportation security cards, and requires DHS to establish a waiver and appeals process for persons found to be ineligible for the required transportation security card. The SAFE Port Act contained amendments to the basic MTSA requirements for credentialing (concurrent processing, fees, card readers, program roll out, testing and timelines) as well as added new requirements (disqualifying crimes, new hire provisions and discretion as to who may obtain a TWIC). The substance of the SAFE Port Act is discussed in greater detail later in this document.

On May 22, 2006, TSA and the Coast Guard issued a joint notice of proposed rulemaking (71 FR 29396), setting forth the proposed requirements and processes required under sec. 102 of MTSA (TWIC NPRM) for implementation of the TWIC program in the maritime sector. The NPRM proposed changes to three titles of TSA and Coast Guard regulations (33 CFR, 46 CFR, and 49 CFR). The Department intends for these combined changes to increase port security by requiring all credentialed mariners and all persons who require unescorted access to a regulated facility or vessel to have undergone a security threat assessment by TSA and obtain a TWIC.

2

The proposed security threat assessment included a review of criminal, immigration, and pertinent intelligence records. TSA also proposed a process for individuals denied TWICs to appeal adverse determinations or apply for waivers of the standards.

2

Additional information on the statutory and regulatory history of this rule can be found in the NPRM at 71 FR 29396 (May 22, 2006).

Prior to the publication of the TWIC NPRM, the Coast Guard published a Notice in the

Federal Register

informing the public that the Commandant of the Coast Guard, pursuant to his authority under 50 U.S.C. 191 and 33 CFR part 125, was exercising his authority to require identification credentials for persons seeking access to waterfront facilities and to port and harbor areas, including vessels and harbor craft in such areas. 71 FR 25066 (April 28, 2006). This action has served as an interim measure to improve security at our nation's ports by verifying maritime workers' identities, validating their background information, and accounting for access for authorized personnel to transportation facilities, vessels and activities.

Id.

The May 22, 2006 TWIC NPRM provided the draft regulatory text for review and solicited public comments for 45 days. TSA and the Coast Guard also held four public meetings throughout the country to solicit public comments. Those meetings were held on May 31, 2006 in Newark, New Jersey; on June 1, 2006 in Tampa, Florida; on June 6, 2006 in St. Louis, Missouri; and on June 7, 2006 in Long Beach, California. Approximately 1200 people attended these meetings. The public can view transcripts of the four public meetings on the public docket for this rulemaking action at

www.regulations.gov.

DHS also received approximately 1770 written comments on the TWIC NPRM. Those comments also can be accessed through the public docket for this action. TSA and the Coast Guard respond to the comments received in the “Discussion of Comments” section, below.

Many commenters requested an extension of the comment period and additional public meetings. As explained more fully in the “Discussion of Comments” section below, DHS has decided not to delay implementation of the TWIC program by extending the

comment period or providing additional public meetings because it is imperative to begin implementation of the TWIC requirements, and accompanying security threat assessments, as soon as possible to improve the security of our Nation's vessels and port facilities. TSA and Coast Guard, however, have not promulgated in this final rule the proposed requirements on owners and operators relating to biometric readers. The Department will address those proposed requirements, which generated the majority of the comments received on the NPRM, in a separate rulemaking action. Interested parties will have the opportunity to comment on those provisions during that rulemaking action. Although the card reader requirements are not being implemented under this final rule, Coast Guard personnel will periodically, and without advance notice, use handheld readers to check the biometric information contained in the card to confirm the identity of the holder of the TWIC.

On May 22, 2006, the Coast Guard also published a related proposed rule, “Consolidation of Merchant Mariner Qualification Credentials,” at 71 FR 29462 (MMC NPRM), proposing the consolidation of Coast Guard-issued merchant mariner's document (MMD), merchant mariner's license (license), certificate of registry (COR) and International Convention on Standards of Training, Certification, and Watchkeeping for Seafarers (STCW) certificate into a single credential called the merchant mariner credential (MMC). The MMC NPRM proposed to streamline the application process, and reduce the administrative burden for the public and the Federal Government. The public meetings held on the TWIC NPRM also included time for the Coast Guard to receive comments on the MMC NPRM. In a separate rulemaking action published elsewhere in this edition of the

Federal Register

, the Coast Guard has provided a Supplemental Notice of Proposed Rulemaking (SNPRM) also entitled “Consolidation of Merchant Mariner Qualification Credentials.” The purpose of the SNPRM is to address comments received from the public on the MMC NPRM, revise the proposed rule based on those comments, and provide the public with an additional opportunity to comment on the revised rulemaking. If it becomes final, the MMC rulemaking is not expected to go into effect until the initial TWIC roll out is complete. This time lapse will not cause a detrimental effect on security, as all credentialed mariners will still need to comply with the TWIC requirements and compliance deadlines set forth in this final rule.

II. Final Rule

Under this final rule, DHS, through the Coast Guard and TSA, requires all credentialed merchant mariners and individuals with unescorted access to secure areas of a regulated facility or vessel to obtain a Transportation Worker Identification Credential (TWIC).

A. Coast Guard Provisions

Owners/operators of MTSA-regulated vessels, facilities, and Outer Continental Shelf (OCS) facilities will need to change their existing access control procedures to ensure that merchant mariners and any other individual seeking unescorted access to a secure area of their vessel or facility has a TWIC.

B. TSA Provisions

Workers must provide biographic and biometric information to apply for a TWIC and pay a fee of $107-$159 to cover all costs associated with the TWIC program. A TWIC applicant must complete a TSA security threat assessment and will be disqualified from obtaining a TWIC if he or she has been convicted or incarcerated for certain crimes within prescribed time periods, lacks legal presence and/or authorization to work in the United States, has a connection to terrorist activity, or has been determined to lack mental capacity.

All applicants have the opportunity to appeal a disqualification, and may apply to TSA for a waiver if disqualified for certain crimes or mental incapacity, or are aliens in Temporary Protected Status (TPS). Applicants who seek a waiver and are denied may seek review by an administrative law judge (ALJ). In addition, applicants who are disqualified under § 1572.107 may seek ALJ review of the disqualification.

A security threat assessment is valid for five years. Therefore, in most cases, a TWIC is valid for five years unless a disqualifying event occurs. If an applicant obtains a TWIC based on a comparable threat assessment under § 1572.5(e), the TWIC will expire five years from the date on the credential associated with the comparable threat assessment. To renew a TWIC, the renewal applicant must provide new biographic and biometric information, complete a new threat assessment, and pay the fee to renew the credential.

C. Changes From NPRM

Each of the changes made from the NPRM to the final rule is summarized in Table 1 and discussed in detail 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 (with biometric verification and validity check at facility/vessel based on MARSEC level)

Visual identity badge; Coast Guard will conduct periodic checks of biometric and validity (second rule for reader requirements).

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 secure areas until successful completion of security threat assessment and card issuance

Permitted to have limited access for 30 consecutive days if accompanied by TWIC-holder and additional requirements are met.

Passenger access area

Defined only for certain vessels (passenger, ferries, cruise ships)

Passenger access area remains and employee access area for certain vessels added (employee access areas do not apply to cruise ships).

TWIC Addendum and recordkeeping requirements

Included

Excluded.

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 access control area.

Lost/Stolen/Damaged cards

Access procedures defined in TWIC Addendum

Specific requirements included in regulation.

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) review

Not included

May be used for waiver denials and disqualifications under § 1572.107.

Immigration standards

Limited ability for non-U.S. citizens to obtain TWICs

Expanded to cover foreign maritime students, and certain professionals and specialists on restricted visas; permitting aliens in TPS to apply for a waiver.

Mental incapacity

Could only be waived by showing court order or letter from institution

Waiver broadened to allow for “case-by-case” determinations.

Fee

$95-$149; card replacement fee $36

$107-$159; card replacement fee $36, but requesting comment on increasing this fee to $60.

1. Changes From Coast Guard's Proposed Rule

Coast Guard is changing several sections of the proposed rule as a result of comments received and additional analysis. These changes include: (1) Changing the access control procedures to be used with TWICs by removing the reader requirements; (2) revising and clarifying the definition of the term “escorting;” (3) adding provisions allowing for access for individuals who are new hires and who have applied for, but not yet received, a TWIC; (4) adding a provision to allow for limited, continued unescorted access for those individuals who report their TWIC as lost, damaged, or stolen; (5) adding a provision to create “employee access areas” aboard passenger vessels and ferries; (6) removing the proposed requirement to submit a TWIC Addendum and keep additional records regarding who has been granted access privileges; (7) adding a provision to allow certain facilities to designate smaller portions of their property as their secure area via an amendment to their facility security plan; (8) removing the proposed requirement for all AMS Committee members to hold a TWIC; (9) changing the definition of secure area to state that, at certain times, U.S. vessels may not have any secure areas; (10) adding a provision to allow emergency responders to have unescorted access without a TWIC during emergency situations; (11) removing the provision allowing for voluntary compliance for those vessels and facilities not otherwise required to implement the TWIC requirements; and (12) revising the compliance dates for owners/operators of vessels and facilities.

(a). Reader Requirements

After reviewing the comments (which are summarized below), we determined that implementing the reader requirements as envisioned in the NPRM would not be prudent at this time. As such, we have removed the reader requirements from the final rule, and will be issuing a subsequent NPRM to address these requirements. That NPRM will address many of the comments and concerns regarding technology that were raised in the below-summarized comments. We will, however, continue to require the use of the TWIC. As stated in the NPRM, there are considerable security benefits to be gained from a TWIC, even in the absence of reader usage. The TWIC provides greater reliability than existing visual identity badge systems because it presents a uniform appearance with embedded features on the face of the credential that make it difficult to forge or alter. When presented with a TWIC, security personnel familiar with its security features are immediately able to notice any absence or destruction of these features, making it less likely that an individual will be able to gain unescorted access to secure areas using a forged or altered TWIC. Additionally, the Coast Guard will conduct unannounced checks of the cards while visiting facilities and vessels. The Coast Guard will use handheld readers to check the biometrics on the card against the person presenting the card. These unannounced checks are an important component of the security efforts at the ports.

(b). “Escorting”/”Unescorted Access”

We have amended the definition of escorted access to clarify our intent. Namely, that the distinction between escort and unescorted access are to serve as performance standards, rather than strict definitions. We expect that, when in an area defined as a restricted area in a vessel or facility security plan, escorting will mean a live, physical side-by-side escort. Whether it must be a one-to-one escort, or whether there can be one escort for multiple persons, will depend on the specifics of each vessel and/or facility. We will provide additional guidance on what these specifics might be in a Navigation and Vessel Inspection Circular (NVIC). Outside of restricted areas, however, side-by-side escorting is not required, so long as the method of surveillance or monitoring is sufficient to allow for a quick response should an individual “under escort” be found in an area where he or she has not been authorized to go or is engaging in activities other than those for which escorted access was granted. Again, we will provide additional guidance with more specifics in a NVIC.

(c). New Hires

We have added a new section within parts 104, 105, and 106 to provide owners/operators with the ability to put new hires to work once new hires have applied for their TWIC and an initial name-based check is completed. In order to ensure adequate security for the vessel and facility during this period, these provisions allow new hires to have access to secure areas for up to 30 consecutive days, so long as they pass a TSA name based check and are

accompanied by another employee with a TWIC. If TSA does not act upon a TWIC application within 30 days, the Coast Guard may further extend access to secure areas for another 30 days. Additional guidance on the manner in which new hires may be accompanied will be issued by the Coast Guard. The guidance will be in the form of a NVIC that considers vessel or facility size, crew or staff size, vessel or facility configuration, the number of TWIC holders, and other appropriate factors, or by making a determination on a case-by-case basis. For example, in some instances, where the operating environment of the vessel is such that there is a small crew, and there is a 24-hour live watchstand while underway, we expect to view the new hires as accompanied when the vessel owner/operator ensures that the security measures for monitoring and access control included within their Coast Guard-approved security plans are implemented. As the operating environment increases or becomes more complex, such as might be the case when Certain Dangerous Cargoes (CDCs) are present, we expect to require additional security measures to ensure that the new hires are, in fact, accompanied by an individual with a TWIC. Similar guidance will also be in place for larger vessels, as well as for facilities and OCS facilities. The NVIC will be released in the near future.

In order to take advantage of this new hire provision, the following procedures must be followed:

(1) The new hire will need to have applied for a TWIC in accordance with 49 CFR part 1572 by completing the full enrollment process and paying the user fee. He or she cannot be engaged in a waiver or appeal process. The owner or operator must have the new hire sign a statement affirming this.

(2) The owner or operator or the security officer must enter the following information on the new hire into the Coast Guard's Homeport Web site (

http://homeport.uscg.mil

):

(i) Full legal name, including middle name if one exists;

(ii) Date of birth;

(iii) Social security number (optional);

(iv) Employer name and 24 hour contact information; and

(v) Date of TWIC enrollment;

(3) The new hire must present an identification credential that meets the requirements of § 101.515 of this subchapter; and

(4) There must be no other circumstances that would cause reasonable suspicion regarding the new hire's ability to obtain a TWIC, and the owner or operator or Facility Security Officer (FSO) must not have been informed by the cognizant COTP that the individual poses a security threat.

This provision only applies to direct hires of the owner/operator; it cannot be used to allow temporary unescorted access to contractors, vendors, longshoremen, truck drivers (unless they are direct employees of the owner/operator), or any other visitor. This provision does not apply if the new hire is a Company, Vessel, or Facility Security Officer, or is otherwise tasked with security duties as a primary assignment.

In order for the Coast Guard and TSA to verify that a new hire who is awaiting TWIC issuance passes an initial security review, this provision includes a requirement for the owner, operator, Vessel Security Officer (VSO) or FSO to enter new hire identifying information into the Coast Guard's Homeport web page. The Homeport web page is a secure location capable of communicating sensitive security information such as Vessel Security Plans (VSP) and Facility Security Plans (FSP) between industry and the Coast Guard. The Homeport web page address is

http://homeport.uscg.mil.

Homeport will then interface with the TSA system, and if a match to an enrollment record can be made, the TSA system will pass back to Homeport the result of the initial name-based check. If the result is that the new hire has been cleared, the owner/operator/security officer can put the new hire to work under the provisions of this section and any guidance provided by the Coast Guard in a forthcoming NVIC.

TSA will begin the security threat assessment process as soon as the enrollment record is complete. Generally, TSA can complete an initial security review within 48-72 hours based on all of the information provided during enrollment. Thus, in some cases (where the new hire information is entered into Homeport three or more days following enrollment), the owner/operator/security officer will not have to wait long before finding out if an individual has cleared the initial name check. We expect that Homeport will be able to notify owners/operators/security officers, via e-mail, when it has received an update on any of the new hires entered by that owner/operator/security officer, which will alleviate any need for them to continuously check in with Homeport.

The new hire must have applied for a TWIC in accordance with 49 CFR part 1572 by completing the full enrollment process and paying the user fee. The owner/operator must have the new hire sign a statement affirming the enrollment, payment, and that the new hire is not involved in an appeal or waiver application. The owner/operator must retain this statement until the new hire receives a TWIC. The statement must be produced if the Coast Guard requests it during an inspection or investigation. The new hire must also present to the owner or operator a form of identification that meets the standard set in 33 CFR 101.515.

It is also important to note here that a new hire may be initially cleared to work in the secure area under the provisions of this section, but be disqualified from receiving a TWIC when the full threat assessment is complete. The results of the criminal history records check (CHRC) generally will not be fully adjudicated within three days, and if the adjudication reveals a disqualifying criminal history, the new hire will not be cleared to receive a TWIC.

The owner/operator of regulated vessels or facilities is required to accompany new hires in secure areas, which includes monitoring new hires while they are in restricted areas of the vessel or facility. Monitoring has the same meaning here as found in §§ 104.285, 105.275, and 106.275 of 33 CFR chapter I, subchapter H.

We are also requiring owners/operators of regulated vessels and facilities to determine that their new hires need access to secure areas immediately in order to prevent adverse impact to the operation of the vessel or facility. Owners and operators must identify that a hardship exists to their operations if their new hires are not allowed access. This adverse impact is not the impact of simply providing escorts for new hires, but must be adverse impacts to the business itself from not being able to employ new hires immediately in secure areas without escort.

Owners and operators of regulated vessels and facilities must be assured that there are no other circumstances that would cause reasonable suspicion regarding the new hire's ability to obtain a TWIC. This information can come through the normal hiring process, reference checks, or interviews. Also, if the Coast Guard, through its Captain of the Port (COTP), has informed the owner/operator that the new hire poses a security threat, the new hire may not have unescorted access to secure areas of the vessel or facility. Only individuals who pass a threat assessment and are issued a TWIC may have unescorted access to secure areas of the vessel or facility.

(d). Access for Individuals With Lost/Stolen TWICs

Under the NPRM, we proposed requiring owners/operators to include alternative security procedures in the TWIC Addenda. These alternative procedures were to be used in various situations, such as when individuals needed unescorted access to secure areas but had lost their TWIC, had it stolen, or simply forgotten it that day. As discussed below, we removed the TWIC Addendum requirement from the final rule, but we wanted to include a provision to allow TWIC holders to continue, for a short period, to have unescorted access to secure areas after reporting their TWICs as lost, damaged, or stolen. As a result, this final rule includes specific procedures for owners/operators to use in the case of lost, damaged, or stolen TWICs. This procedure includes having the individual report his/her card as lost, damaged, or stolen to the TWIC Call Center and checking another form of identification that meets 33 CFR 101.515, provided there are no other suspicious circumstances that would cause an owner/operator to question the veracity of the individual. In order to prevent this procedure from becoming a significant loophole in the TWIC regulation, we require that the individual be known to have had a valid TWIC and to have previously been granted unescorted access, and have limited the use of the procedure to seven (7) consecutive calendar days. This should provide enough time for the replacement card to be produced and shipped to the nearest enrollment enter, and for the individual to travel to that center to pick up the replacement card.

(e). “Employee Access Areas”

We intended for the term “passenger access area” to capture those employees whose jobs are necessary solely for the entertainment of the passengers of the vessel, such as musicians, wait staff, or casino employees on a passenger vessel. Upon reviewing comments, however, we realized that there are a variety of employees who may need to enter non-passenger spaces, such as the galley, who would be included under TWIC's applicability merely because of their need to enter these areas. As such, we are adding a definition for “employee access areas,” for use only by passenger vessels and ferries. An employee access area is a defined space within the access control area of a ferry or passenger vessel that is open to employees but not passengers. It is not a secure area and does not require a TWIC for unescorted access. It may not include any areas defined as restricted areas in the vessel security plan (VSP). Note, however, that any employee that needs to have unescorted access to areas of the vessel outside of the passenger or employee access areas will need to obtain a TWIC.

(f) TWIC Addendum and Recordkeeping Requirements

We removed the TWIC Addendum requirement from the final rule when we determined that the reader requirements would be delayed until a subsequent rulemaking. The purpose of the TWIC Addendum was to allow the owner/operator to explain how the readers would be incorporated into their overall access control structure, within the standards provided in the NPRM. With the removal of the reader requirements from this final rule, we feel it is appropriate to also remove the TWIC Addendum requirement. Additionally, because we envision the TWIC Addendum to be a part of the subsequent rulemaking on reader requirements, we felt it would be overly burdensome to also require a TWIC Addendum at this point in time.

The recordkeeping requirements related to TWIC implementation have also been removed from the final rule. We had proposed the requirements because we believed they could be satisfied by using the TWIC readers, which were also proposed. Due to our decision to remove the reader requirements from this final rule, it makes sense to also remove the recordkeeping requirements that were intrinsically tied to those readers.

(g). Secure Area

We did not intend for the terms “secure area” and “restricted area” to be read as meaning the same thing. Restricted areas are defined already in the MTSA regulations as “the infrastructure or locations identified in an area, vessel, or facility security assessment or by the operator that require limited access and a higher degree of security protection.” (33 CFR 101.105) Additionally, those regulations spell out certain areas within vessels and facilities that must be included as restricted areas (

see

33 CFR 104.270, 105.260, and 106.265). This final rule defines “secure area” as meaning the area over which an owner/operator has implemented security measures for access control. In other words, the secure area would be anything inside the outer-most access control point of a facility, and it would encompass the entirety of a vessel or OCS facility.

We adopted this definition after much consideration, including consideration of making only restricted areas secure areas. We ultimately abandoned this option, however, when we realized that equating the restricted area to the secure area would have required that the readers and biometric verification be used at the entry points of each restricted area. Because some facilities and vessels have multiple restricted areas that are not always contiguous, this would have likely meant that many owners/operators would have needed more than one reader, increasing their compliance costs. Additionally, the process of repeated biometric identification could have interfered with the operations of facilities and vessels. Finally, we determined that there are areas within some facilities that are not required to be restricted areas that should be deemed secure areas, such as truck staging areas, empty container storage areas, and roads leading between the facility gates and the pier. Allowing persons who have not been through the security threat assessment or are not escorted to have access to these areas could provide them with the opportunity to access the non-restricted areas of the facility to perpetrate a transportation security incident (TSI). Pushing the secure area out beyond the restricted area makes the event of an intentional TSI less likely. As a result, we decided to define the secure area as the “access control area,” thus limiting the number of readers required, as well as the number of times biometric verification would need to take place, and providing for the necessary level of security outside of restricted areas. We note, however, that facility owners/operators have the discretion to designate their entire facility as a restricted area. In this situation, the restricted area and secure area would be one and the same.

We recognize that many facilities may have areas within their access control area that are not related to maritime transportation, such as areas devoted to manufacturing or refining operations, and were only included within the FSP because the owner/operator did not want to have to install additional access control measures to separate the non-maritime transportation related portions of their facility from the maritime transportation related portions. Given the new obligations of this TWIC final rule, however, these owners/operators may wish to revisit this decision. As such, we are giving facility owners/operators the option of amending their FSP to redefine their secure area, to include only those portions of their facility that are directly connected to maritime transportation or are at risk of being involved in a transportation

security incident. These amendments must be submitted to the cognizant COTP by July 25, 2007.

We realize that there may be some owners and operators of vessels that would like the same option. However, vessels present a unique security threat over facilities in that they may not only be targets in and of themselves, but may also be used as a weapon. Due to this fact, we will continue to define the entire vessel as a “secure area,” making exception only for those special passenger and employee access areas which are discussed above. Vessel owners/operators need not submit an amendment to the VSP in order to implement these special areas, however they may do so, following the procedures described in part 104.

(h). U.S. Vessels in Foreign Waters

Due in part to the unique operating requirements imposed on U.S. Offshore Supply Vessels (OSVs) and Mobile Offshore Drilling Units (MODUs) when operating in support of OCS facilities in foreign waters, we determined that we must change some language from the proposed rule. As such, we are adding a provision to the definition of secure area in § 101.105 that states that U.S. vessels operating under the waiver provision in 46 U.S.C. 8103(b)(3)(A) or (B) have no secure areas. These waiver provisions allow U.S. vessels to employ foreigners as crew in certain circumstances. The effect of this change is to exempt these vessels from the TWIC requirement while they are operating under the referenced waivers. As soon as the vessel ceases operating under these waiver provisions, it will be deemed to have secure areas as otherwise defined, and TWIC provisions will apply.

(i). Area Maritime Security (AMS) Committee Members

The NPRM proposed requiring all members of AMS Committees to have a TWIC. We recognize that large numbers of the members will either (1) already have a TWIC, due to their role within the security organization of a facility, or (2) already have undergone some type of comparable background screening due to their position as a Federal, State, or local law enforcement official. After further consideration, we believe that anyone not falling into one of these categories could be discouraged from volunteering to sit on an AMS Committee, due to the cost of obtaining a TWIC. This could have a detrimental effect on the AMS Committee, as there may be individuals who are experts in security who would be (and in some cases already are) valuable parts of AMS Committees, who would opt out of sitting on the Committee rather than assume the cost of obtaining a TWIC. Therefore, we have changed the final rule to allow AMSC members to serve on the AMSC after the completion of a name-based terrorist check from TSA. If an AMSC member requires unescorted access to secure areas of vessels or facilities they will be required to obtain a TWIC. If, however, they do not require unescorted access, but do need access to SSI, they must first pass a TSA name based check at no cost to the AMSC member. The Federal Maritime Security Coordinator for the member's particular AMSC (

i.e.

COTPs) will forward the names of these individuals to TSA or Coast Guard Headquarters for clearance prior to sharing SSI with these members.

(j). Emergency Responders

We added a provision within 33 CFR 101.514 to allow State and local emergency responders to gain access to secure areas without a TWIC during an emergency situation. Not all emergency responders will fall into the category of State or local officials. We feel it is imperative that these individuals be allowed unescorted access to secure areas in an emergency situation. Emergency responders who are not State or local officials are encouraged to apply for a TWIC. Under the existing access control requirements of 33 CFR 105.255, the owner or operator has documented procedures for checking credentials prior to allowing access and will maintain responsibility for all those granted access to a vessel or facility, even in an emergency situation.

(k). Voluntary Compliance

The provisions that would have allowed vessel and facility owners/operators to implement voluntary TWIC programs have been removed. These provisions have been eliminated due to the fact that neither TSA nor the Coast Guard can, at this time, envision being in a position to approve voluntary compliance before the full TWIC program, (

i.e.

, reader requirements) is in place. We will keep it in mind, however, as we develop our NPRM to repropose reader requirements.

(l). Compliance Dates

We have also revised the compliance dates slightly. Vessels will now have 20 months from the publication date of this final rule to implement the new TWIC access control provisions. Facilities will still have their compliance date tied to the completion of initial enrollment in the COTP zone where the facility is located. This date will vary, and will be announced for each COTP zone at least 90 days in advance by a Notice published in the

Federal Register

. The latest date by which facilities can expect to be required to comply will be September 25, 2008. Additionally, mariners will not need to hold a TWIC until September 25, 2008. Mariners may rely upon their Coast Guard-issued credential and a photo ID to gain unescorted access to secure areas to any facility that has a compliance date earlier than September 25, 2008.

2. Changes From TSA's Proposed Rule

TSA is changing several sections of the proposed rule as a result of comments received, new legislation, and additional analysis. The changes include: (1) Establishing procedures for review of waiver denials by an ALJ; (2) applying the hazmat and TWIC appeal procedures to air cargo personnel; (3) amending the list of disqualifying criminal offenses; (4) expanding the group of aliens who meet the immigration standards; (5) amending the waiver standards for applicants disqualified due to mental incapacity; (6) amending the fees for TWIC; (7) revising the standard for drivers licensed in Mexico and Canada who transport hazardous materials into and within the United States; and (8) modifying the prohibitions on fraudulent use or manufacture of TWIC or access control procedures.

(a). Review by Administrative Law Judge

We noted in the NPRM that if legislation was enacted after publication of the final rule to require review by an Administrative Law Judge of the denial of waiver requests by TSA, we would include such a statutory mandate in the final rule.

See

71 FR at 29421. The Coast Guard and Maritime Transportation Act of 2006, Pub. L. 109-241, was enacted on July 11, 2006. Section 309 of this Act requires the Secretary of Homeland Security to establish an ALJ review process for individuals denied a waiver by TSA. Accordingly, we are including the ALJ review procedures in new § 1515.11.

The ALJ review process set forth under § 1515.11 does not alter the substantive criteria under which TSA will grant or deny a waiver. Therefore, this provision constitutes a rule of agency procedure and may be implemented without prior notice and comment under the Administrative Procedure Act, 5 U.S.C. 553(b)(A).

See Hurson Assoc. Inc.,

v.

Glickman,

229 F.3d 277 (D.C. Cir. 2000) (rule eliminating face-to-face process in agency review of requests for approval

was procedural and not subject to notice-and-comment rulemaking).

The new legislation requires ALJ review to be available for denials of waivers. Under the rules waivers are not available for determinations under § 1572.107 that an applicant poses a security threat, which usually is based on an intelligence-related check involving classified information. However, we have considered that there appears to be an intent that we provide for an ALJ review of such determinations, considering, for example, that the statute provides for ALJ review of classified information, which rarely is relevant to waivers under the current rules. We have also considered that the decision to determine whether an applicant poses a threat under § 1572.107 is largely a subjective judgment based on many facts and circumstances. The same is true for the decision to grant or deny a waiver of the standards in §§ 1572.103 (criminal offenses), aliens who are in TPS under 1572.105, or 1572.109 (mental capacity). Accordingly, we are providing for ALJ review of both a determination that the applicant does not meet the standards in § 1572.107, and a denial of a waiver of certain standards in §§ 1572.103, 1572.105, and 1572.109.

An applicant who has received an Initial Determination of Threat Assessment based on § 1572.107 may first appeal that determination using the procedures in new § 1515.9. If after that appeal TSA continues its determination that the applicant is not qualified, the applicant may seek ALJ review under § 1515.11.

On the other hand, the determination that an applicant does or does not have a disqualifying criminal offense listed in § 1572.103, immigration status in § 1572.105, or mental capacity described in § 1572.109, largely involves an analysis of the legal events that have occurred. Such analyses depend mainly on review of legal documents. We have retained in § 1515.5 the paper hearing process for the appeal of an Initial Determination that an applicant is not qualified under those sections. At the end of that appeal, if TSA issues a Final Determination that the applicant is not qualified under one of those sections, the applicant may seek review in the Court of Appeals. At any time, however, the applicant may seek a waiver of certain standards in those sections on the basis that, notwithstanding a lack of qualification, the applicant asserts that he or she does not pose a security threat and thus seeks to waive the subject standards. The applicant initiates the request for a waiver using the procedures in § 1515.7. If a waiver is not granted, the applicant may seek review by an ALJ under § 1515.11.

For consistency, we are providing the same review processes for hazardous materials endorsement (HME) applicants that we are providing for TWIC applicants.

Paragraph 1515.11(a) of this new section specifies that the new process applies to applicants who are seeking review of an initial decision by TSA denying a request for a waiver under § 1515.7 or who are seeking review of a Final Determination of Threat Assessment issued under § 1515.9.

Section 1515.11(b) allows the applicant 30 calendar days from the date of service of the determination to request a review. The review will be conducted by an ALJ who possesses the appropriate security clearances to review classified information. The rule sets forth the information that the applicant must submit. This section clarifies that the ALJ may only consider evidence that was presented to TSA at the time of application in the request for a waiver or the appeal. If the applicant has new evidence or information to support a request for waiver, the applicant must file a new request for a waiver under § 1515.7 or a new appeal under § 1515.9 and the pending request for review will be dismissed. Section 1515.11 provides detailed requirements for the conduct of the review, such as requests for extension of time and duties of the ALJ.

In accordance with the Coast Guard and Maritime Transportation Act, this section provides for ALJ review of classified information on an

ex parte

, in camera basis and consideration of such information in rendering a decision if the information appears to be material and relevant.

Paragraph 1515.11(f) provides that within 30 calendar days after the conclusion of the hearing, the ALJ will issue an unclassified decision to the parties. The ALJ may issue a classified decision to TSA. The ALJ may decide that the decision was supported by substantial evidence on the record or that the decision was not supported by substantial evidence on the record. If neither party requests a review of the ALJ's decision, TSA will issue a final order either granting or denying the waiver or the appeal.

Paragraph 1515.11(g) describes the process by which a party may petition for review of the ALJ's decision to the TSA Final Decision Maker. The TSA Final Decision Maker will issue a written decision within 30 calendar days after receipt of the petition or receipt of the other party's response. The TSA Final Decision Maker may issue an unclassified opinion to the parties and a classified opinion to TSA. The decision of the TSA Final Decision Maker is a final agency order.

Paragraph 1515.11(h) states that an applicant may seek judicial review of a final order of the TSA Final Decision Maker in accordance with 49 U.S.C. 46110, which provides for review in the United States Court of Appeals. Under sec. 46110 a party has 60 days after the date of service of the final order to petition for review.

(b). Appeal Procedures for Air Cargo Personnel

In the final rule we are adding the appeal procedures that currently apply to air cargo workers codified at 49 CFR parts 1540 to 1515. In the NPRM TSA stated that it may use the procedures in part 1515 for other security threat assessments, such as for air cargo personnel.

See

71 FR at 29418. At that time the air cargo proposed rule had been published but was not yet final, and it proposed to use appeal procedures that were essentially the same as for HME applicants. The air cargo rule has now been made final.

See

71 FR 30478 (May 26, 2006). Because part 1515 was not yet final in the air cargo rule, we placed the appeal procedures for the air cargo security threat assessment into part 1540 subpart C, along with other procedures that apply to air cargo threat assessments. In a further effort to harmonize security threat assessments, we are now moving the appeal procedures for air cargo personnel to part 1515. For consistency with the TWIC and HME processes we are providing for review by an ALJ as described above.

We are also revising part 1540 subpart C to harmonize more with part 1572. Thus, we are replacing “individual” with “applicant” to refer to the person who is applying for a security threat assessment. We are also revising § 1540.205 to read essentially the same as § 1572.21 for TWIC, because it serves the same function. Note that while the procedures for TWIC refer to CHRCs and other checks, the procedures for air cargo personnel refer only to intelligence-related checks, because they are not subject to the other checks conducted on TWIC applicants.

(c). Disqualifying Criminal Offenses.

In this final rule, the list of criminal acts that disqualify an applicant from holding an HME under 49 CFR 1572.103 now applies to TWIC applicants. We believe equal treatment for transportation workers is appropriate and consistent with the pertinent

statutory requirements. The standards for the HME rule were mandated by the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act (USA Patriot Act) Pub. L. 107-56, 115 Stat.272 (October 25, 2001). It provides that TSA conduct a security threat assessment on applicants to determine if they pose a “security risk.” The USA Patriot Act was enacted shortly after and in response to the terrorist attacks on the United States on September 11. As a result, we interpreted the language “security risk” to mean a risk of terrorism or terrorist activity. Nothing in the statute or the legislative history of the USA Patriot Act contradicts this reading of the language. MTSA, enacted a year later, requires a security threat assessment to determine whether an applicant poses a “terrorism security threat.” We believe the security threat assessment required under MTSA is the same threat assessment required under the USA Patriot Act, even though the actual language differs slightly.

In addition, TSA is making administrative and substantive changes to this section. In the NPRM, TSA indicated that it was considering changing the list of disqualifying crimes and asked for comment on the list. TSA received significant comments from Congress and others suggesting that the list of disqualifying crimes is overly broad, and that some crimes had more of a nexus to terrorism than others. 152 Cong. Rec. 2120 (2006).

See also

Comments of House Committee on Homeland Security on TSA and Coast Guard's Rule to Implement TWIC, July 6, 2006. TSA has evaluated the list of disqualifying crimes and decided to fine tune the list to better reflect crimes that are more likely to result in a terrorism security risk or a transportation security incident, and thus should disqualify an applicant from receiving a TWIC.

TSA is making a substantive change to this section concerning the crimes of treason, sedition, espionage, and terrorism listed in § 1572.103(a), which are permanently disqualifying. Applicants convicted of these crimes are not eligible for a waiver. As we proposed to do in the NPRM, TSA is adding conspiracy to commit these crimes to the list of crimes that are not subject to a waiver request. TSA has determined that a conviction of conspiracy to commit espionage, treason, sedition, or terrorism is indicative of a serious, ongoing, unacceptable risk to security and should not be waived under any circumstances.

TSA is changing the language in (a)(4) from “a crime listed in 18 U.S.C. Chapter 113B—Terrorism” to “a federal crime of terrorism as defined in 18 U.S.C. 2332b(g)” or conspiracy to commit such crime, or comparable State law. Section 2332b(g) is a definitional list that is broader and more explicit than the crimes punished directly in Chapter 113B. We are making this change to more accurately capture all pertinent terrorism-related crimes. Although we intended to be as inclusive as possible with the previous language, experts at the Department of Justice advise that the new language more accurately captures the relevant criminal acts. TSA is adding felony bomb threat in paragraph (a)(9) as a permanent disqualifier including maliciously conveying false information concerning the deliverance, placement, or detonation of an explosive or other lethal device against a state or government facility, public transportation system or an infrastructure facility. TSA is including this crime because it is, in essence, a threat to commit an act of terrorism. We note that we have disqualified an applicant with such crime under the authority of current paragraph (b)(6) dishonesty, misrepresentation, or fraud. To be clear that this crime is a permanent disqualifier, we are adding it as an independent offense in § 1572.103(a)(9). This offense includes making any threat, or maliciously conveying false information knowing the same to be false, concerning the deliverance, placement, or detonation of an explosive or other lethal device in or against a place of public use, a state or government facility, a public transportation system, or an infrastructure facility.

Paragraph 1572.103(a)(9) is based in part on conduct prohibited by several federal crimes. The first is 18 U.S.C. 844(e), which is found in chapter 40 (Explosive Materials) of the federal criminal code. Section 844(e) criminalizes the use of the mail, telephone, or other instrument of interstate or foreign commerce to willfully make any threat or maliciously convey false information knowing the same to be false, concerning an attempt to kill, injure, or intimidate any individual or unlawfully damage or destroy any building, vehicle, or other real or personal property by means of an explosive. This crime is already disqualifying under paragraph (a)(7). For inclusion in the list of disqualifying crimes, TSA modified this description to broaden it beyond a threat made through an instrument of interstate or foreign commerce. This change provides a disqualification for purely intrastate conduct that results in a felony conviction under State law. TSA also modified the wording found in section 844(e) to include threats of use of lethal weapons in addition to fire and explosives, such as biological, chemical, or radiological weapons. Threats to use these weapons are prohibited by other sections of the federal criminal code.

See, e.g.

, 18 U.S.C 175 (Biological weapons); 18 U.S.C. 229 (Chemical Weapons); and 18 U.S.C. 2332h.

TSA has revised the language of paragraph (b) to clarify that the crimes listed are disqualifying if either of the following are true: (1) The applicant's date of conviction is within seven years of the date of application; or (2) the applicant was incarcerated for that crime and was released from incarceration within five years of the date of application.

TSA is adding the offense of fraudulent entry into seaport secure areas to the list of interim disqualifiers. This is a new provision in 18 U.S.C. 1036 that we believe is particularly relevant to this rulemaking and any TWIC applicant.

TSA is also clarifying in paragraph (b)(2)(iii) that money laundering is an interim disqualifier because it is encompassed under the crimes of dishonesty and fraud and can be a means of funding terrorism. It is known that criminals obtain money from the illegal sale of drugs, firearms and other contraband, launder the money to hide its origin and then funnel this money to terrorist groups. The money laundering disqualifier is limited to convictions where the laundering was for proceeds of other disqualifying criminal activities such as drugs or weapon sales.

TSA is also clarifying that welfare fraud and passing bad checks will not be considered crimes of dishonesty, fraud, or misrepresentation for purposes of paragraph (b)(2)(iii). In some states, conviction for passing a bad check of $100 is a felony and so would be disqualifying for an HME or TWIC applicant. Similarly, a conviction for welfare fraud can be a felony under state law, depending on the circumstances of the case. TSA believes that these crimes generally do not have a nexus to terrorism and therefore should not be disqualifying under MTSA.

TSA is moving the definitions of “explosive,” “firearm,” and “transportation security incident” from § 1572.3 to § 1572.103, where the terms are used. This should help to eliminate uncertainty about the crimes that are disqualifying. In addition, TSA is adopting clarifying language concerning the kind of activity that constitutes a “transportation security incident.” As required in § 7105 of SAFETEA-LU,

codified at 47 U.S.C. 5103a(g)(3), the definition now makes clear that nonviolent labor-management activity is not considered a disqualifying offense.

The list of disqualifying crimes in § 1572.103 applies equally to TWIC and HME applicants, thus the amendments apply to both.

(d). Immigration standards

The NPRM was drafted to permit non-resident aliens in the U.S. with unrestricted authorization to work here to apply for and obtain a TWIC. As a result of comments and the relatively common employment of foreign specialists in certain maritime job categories who do not have “unrestricted” work authorization, we are expanding the group of aliens who can apply to include certain restricted work authorization categories.

For purposes of this discussion, it is helpful to explain that there are two categories of U.S. visas: immigrant and nonimmigrant. As provided in the immigration laws, an immigrant is a foreign national who has been approved for lawful permanent residence in the United States. Immigrants enjoy unrestricted eligibility for employment authorization. Nonimmigrants, on the other hand, are foreign nationals who have permanent residence outside the United States and who are admitted to the United States on a temporary basis. Thus, immigrant visas are issued to qualified persons who intend to live permanently in the United States. Nonimmigrant visas are issued to qualified persons with permanent residence outside the United States, but who are authorized to be in the United States on a temporary basis, usually for tourism, business, study, or short-or long-term work. Certain categories of lawful nonimmigrant visas or status allow for restricted employment authorization during the validity period of the visa or status.

TSA has carefully reconsidered the immigration standards we proposed in the NPRM in light of the comments we received relating to immigration status and our own ongoing analysis. As a result, we are amending the immigration standards for TWIC and HME applicants. The critical issues we examined and on which we rely to determine whether an alien should be permitted to apply for a TWIC or HME are: (1) The statutory language regarding immigration status; (2) the degree to which TSA can complete a thorough threat assessment both initially and perpetually on the applicant; (3) the duration of the applicant's legal status as of the date he or she enrolls and the degree to which we can control possession of a TWIC once legal status ends; (4) the restrictions, if any, that apply to the applicant's immigration status; (5) particular maritime professions that commenters stated often involve aliens; and (6) the checks done by the U.S. Department of State (State Department) or other federal agency relevant to granting alien status.

With respect to non-U.S. citizens, MTSA provides that an individual may not be denied a TWIC unless he or she may be denied admission to or removed from the United States under the Immigration and Nationality Act (8 U.S.C. 1101,

et seq.

), or “otherwise poses a terrorism security risk to the United States

3

.” 46 U.S.C. 70105(c). Under this final rule, all applicants for TWICs must be lawfully present in the country. Each of the permissible classes listed in § 1572.105 has, as a basis, lawful presence in the United States. Additionally, if the duration of an applicant's legal status as of the date of enrollment does not meet or exceed the period of validity of the credential, five years, we have concerns about permitting the applicant to receive a TWIC

4

. Given the statutory language—that we may deny a TWIC to an applicant who “

may be

denied admission to the United States or

removed from

the United States under the Immigration and Nationality Act”—we believe it is not advisable and may be inconsistent with MTSA to issue a five-year credential to an individual whose known lawful status as of the date of enrollment is a much shorter time period. The statutory language reflects the evolving nature of immigration status and we believe it is a significant distinction that warrants particular treatment.

3

The governing statute for immigration standards for an HME (49 U.S.C. 5103a) requires TSA to “review relevant databases to determine the status of an alien under U.S. immigration law,” which provides TSA more discretion to determine whether an alien in a particular immigration class should hold an HME. In order to maintain consistent standards among transportation workers where possible, the immigration standards we are establishing in this final rule for TWIC applicants will also apply to HME applicants. However, as a threshold matter, HME applicants must first meet the standards to hold a commercial driver's license promulgated by the U.S. Department of Transportation, which may include immigration status.

4

The TSA system is not currently programmed to issue credentials with varying expiration dates; all TWICs will expire five years from the date on which they were issued. We plan to explore modifying aspects of the TSA system as the program matures.

Changes to alien status occur frequently and are difficult to track accurately in real time and perpetually, both of which are necessary to ensure that a TWIC holder remains in legal status. Where we can achieve a level of certainty that the applicant will not possess a TWIC longer than his or her lawful presence and commenters have indicated there is a need for certain short-term aliens to hold a TWIC, we will consider issuing them a credential.

Many aliens in lawful nonimmigrant status are not eligible to work in the United States or their employment authorization is restricted in some way, usually to the particular sponsoring employer or entity. With the exception of students in valid M-1 nonimmigrant status who are enrolled in the U.S. Merchant Marine Academy or a comparable State school and must complete vocational training, we do not believe it would be consistent with MTSA to permit lawful nonimmigrants that are ineligible to work or conduct business in the United States to apply for a TWIC. Also, if the employment restriction placed on the nonimmigrant generally prevents the individual from working in a maritime facility or vessel, we do not believe a TWIC should be granted. The final rule now lists the nonimmigrant classifications with restricted employment authorization that have a nexus to the maritime industry. Aliens in these nonimmigrant categories with restricted employment authorization may apply for a TWIC notwithstanding the fact that their immigration status may expire in less than five years, because we are requiring additional measures to ensure that the TWIC expires after the employment that requires unescorted access to secure areas ends.

The final rule now requires employers of TWIC holders who are lawful nonimmigrants with restricted authorization to work to retrieve the applicant's TWIC when the job for which the nonimmigrant status was granted is complete. The employer in this situation should be well aware that the employment status has ended because the visa was issued to facilitate a specific job or employment with the employer. However, if an employer terminates the employment relationship with the alien working on a restricted visa, or that alien quits working for the employer, the employer is required to notify TSA within 5 days and provide the TWIC to TSA if possible. Additionally, all applicants must return their TWIC to TSA when they are no longer qualified for it, and a visa applicant's TWIC expires when either the employment ends or the visa expires. These requirements should minimize the likelihood that an alien will continue to possess a TWIC and have unescorted access to secure areas

of the maritime industry after his or her legal status to do so expires.

The requirement to return a TWIC to TSA when the pertinent employment ends does not apply to employers of lawful nonimmigrants with unrestricted authorization to work or employers of unrestricted lawful nonimmigrants. Under the immigration laws, the status assigned to an alien carries with it the determination that the individual may work in the United States with or without restriction. Where the alien status includes employer sponsorship as a condition of legal presence, we believe it is appropriate to require the employer to return the credential to TSA once that relationship ends. However, in the cases of alien status that do not carry employment restrictions, we do not believe it is advisable at this time to require any employer action. The lawful nonimmigrant who is not under employment restriction may cease working for an employer and maintain legal status. Retrieving the TWIC at this point would not be appropriate. If the applicant loses lawful status, under the rule, he or she must report any disqualifying offense to TSA and surrender the TWIC. In addition, the enrollment record for each applicant contains contact information for employers, and if TSA determines that an applicant has lost legal status, we would generally have the information necessary to contact the employer and the TWIC holder.

To satisfy the second prong of MTSA's immigration status requirement, that a TWIC holder does not pose a terrorism security threat to the United States, TSA considers a variety of factors. TSA must be able to conduct a comprehensive threat assessment of the applicant. As in all of TSA's security threat assessment programs, we will conduct a comprehensive threat assessment of each applicant upon enrollment, and then will vet the applicants perpetually using appropriate databases throughout the five-year term of the TWIC. We consider the initial and perpetual vetting to be equally important in maintaining a high level of confidence in the TWIC population. To the extent that a full threat assessment cannot be completed on an applicant initially or perpetually, TSA has concerns about granting that applicant unescorted access to secure areas of maritime facilities and vessels.

Many immigration statuses change over time, and TSA generally is not in a position to perpetually vet the immigration status of an applicant. We are reluctant to provide a five-year TWIC under these circumstances unless we achieve some level of control over the actual credential through the applicant's employer to minimize the likelihood that an alien who has lost lawful status keeps the credential.

A significant component of a comprehensive security threat assessment is a fingerprint-based criminal history records check for arrests, indictments, wants, warrants, and serious felony convictions. If we are unable to complete such a check because we cannot access the criminal records of the country in which an applicant has lived for many years, we have concerns that we cannot make an accurate assessment of the individual. Many U.S. workers commented on this fact, in some cases asserting that U.S. citizens are held to a higher standard than workers born abroad because of the inability to do a complete criminal records check on foreign-born applicants. We do not believe that this situation alone constitutes justification to deny non-citizens a TWIC, particularly since U.S. citizens may be born abroad, or spend substantial time abroad. However, it does give rise to a legitimate security concern. Consequently, we must make every effort to minimize the likelihood that someone with malicious intent can enter the United States legally or illegally, hide significant prior criminal or terrorist activity, and obtain unescorted access to secure areas of the maritime industry.

To reduce the likelihood that TWICs will be issued to someone with malicious intent, we are changing the immigration standards in a variety of ways to reduce those eligible for TWICs to only those individuals on whom the Department of State and/or DHS can perform an adequate security review. First, we are not permitting certain aliens in lawful nonimmigrant status with unrestricted employment authorization to apply for a TWIC. We are not permitting aliens in valid S-5 or S-6 lawful nonimmigrant status with unrestricted authorization to work in the United States to apply for a TWIC. Individuals who are in S-5 and S-6 lawful nonimmigrant status are informants providing information relating to criminal or terrorist organizations. Typically, individuals who are able to provide this kind of information to law enforcement personnel in the United States have been engaged in criminal or terrorist activity themselves. For this reason, we believe they pose a security risk and should not be granted a TWIC. Additionally, this status is granted to no more than 250 individuals per year, and so the likelihood that preventing these individuals from applying for a TWIC would adversely impact a significant number of applicants or the maritime industry is virtually nonexistent. Finally, the S-5 and S-6 status requires frequent contact with U.S. law enforcement personnel for approximately three years, after which time the applicant may be recommended for lawful permanent resident status. After these individuals satisfy the conditions of their status and become lawful permanent residents, the risk they initially present would effectively be mitigated and they would be permitted to apply for a TWIC.

We do not believe it is advisable to permit lawful nonimmigrants in K-1 or K-2 status to apply for a TWIC. These individuals include the fiancés and minor children of fiancés of U.S. citizens. Their lawful status expires in just four months. We believe these individuals can be escorted under the final rule until they obtain permanent or other lawful status.

Aside from holders of the S-5 and S-6 and K-1 and K-2 statuses all lawful nonimmigrants with unrestricted authorization to work in the United States may apply for a TWIC.

Second, we are revising the rule to treat U.S. nationals, that is, principally American Samoans, as we treat U.S. citizens.

5

We accomplished this change by adding a definition to the rule for “National of the United States,” which means a citizen of the United States or an individual who owes permanent allegiance to the United States. This change is consistent with longstanding principles of immigration law and we believe would not introduce a security threat. Similarly, the final rule permits citizens of the Federated States of Micronesia, the Republic of the Marshall Islands, and Palau who have been admitted as nonimmigrants under the Compacts of Free Association between the United States and those countries to apply for a TWIC. The United States has entered into treaties with these countries that afford their citizens preferred treatment. For instance, citizens of these countries may reside indefinitely and work in the United States without restriction. Therefore, we believe it is appropriate to permit these individuals to apply for a TWIC.

5

Note that Swains Island has been incorporated into American Samoa and thus does not need a separate reference. (48 USC 1662) In addition, this includes nationals of the Commonwealth of the Northern Mariana Islands.

Third, in response to many comments about the use of foreign professionals in the maritime industry for specialty work, we are permitting certain lawful

nonimmigrants with restricted authorization to work in the United States to apply for a TWIC. There is a longstanding practice of employing non-U.S. citizens to complete specialized maritime tasks, such as maintaining vessel engines and motors. In addition, many international maritime companies transfer staff from abroad into the United States for short or long-term periods, and many of these individuals must work at maritime facilities or on vessels. Denying this segment of the industry the opportunity to apply for a TWIC could adversely impact maritime operations and economic vitality. However, to mitigate our concerns about the inability to complete a thorough initial and perpetual threat assessment on individuals who have not lived in the United States for any significant period of time and who are authorized to remain in the United States for less than five years, we are adding requirements for employers and affected workers to return the TWIC to TSA when the job is completed or the worker otherwise ceases employment with the company.

We received a comment concerning aliens who are religious personnel in valid R-1 lawful nonimmigrant status with restricted employment authorization. The commenter noted that vessel crew members may request spiritual guidance or religious services when their vessel docks at a port in the United States, and religious workers in valid R-1 status should be permitted to apply for a TWIC to board the vessel. Seafarer Welfare Advocates are eligible for TWICs as long as they meet the TWIC rulemaking eligibility requirements; however, there are no exemptions for aliens holding R-1 visas. We believe that individuals with R-1 visas can be escorted because any individual providing religious services to crew members on a vessel would be on board the vessel for relatively short periods of time and would most likely be in the company of TWIC holders during that time. While we do not believe that these individuals need to hold a TWIC to carry out their religious or spiritual functions, they may apply and will be issued TWICs if they meet the eligibility requirements.

Fourth, we are permitting students of the United States Maritime Academy and comparable State maritime colleges in valid M-1 lawful nonimmigrant status to apply for a TWIC. These individuals clearly have a need for unescorted access to maritime facilities and vessels as they complete their vocational training in the United States.

Fifth, we are adding individuals who are in TPS to the group of applicants who may apply for a waiver. Temporary Protected Status is a temporary immigration status granted to eligible nationals of designated countries. The Secretary may designate a country for TPS when it is determined that (1) there is an ongoing armed conflict in the state and, due to that conflict, return of nationals to that state would pose a serious threat to their personal safety; (2) the state has suffered an environmental disaster resulting in a substantial, temporary disruption of living conditions, the state is temporarily unable to handle adequately the return of its nationals, and the state has requested TPS designation; or (3) there exist other extraordinary and temporary conditions in the state that prevent nationals from returning in safety.

TPS beneficiaries are not required to leave the United States and may obtain work authorization for the initial TPS period and for any extensions of the designation. TPS does not automatically lead to permanent resident status. A TPS designation may be effective for a minimum of 6 months and a maximum of 18 months. Before the end of the TPS designation period, the conditions that gave rise to the TPS designation are reviewed. Unless a determination is made that those conditions are no longer met, the TPS designation will be extended for 6, 12, or 18 months. If the conditions that led to the TPS designation are no longer met, the TPS designation is terminated. Designations, extensions, terminations and other documents regarding TPS are published in the

Federal Register

. Currently, nationals of Somalia, Sudan, Burundi, Honduras, Nicaragua, and El Salvador have TPS status in the United States.

In many cases, TPS status for a particular country will remain in place for several years. Thus, nationals of these countries may be in the United States for a decade or more and establish a record that TSA can effectively review for a security threat assessment. Based on this and the unrestricted work authorization, we have determined that under certain circumstances, TPS recipients should be permitted to hold a TWIC. Our ability to complete a thorough threat assessment and the record that is disclosed during the threat assessment will be critical factors in determining if a waiver should be granted to a TPS recipient. In addition, letters of reference from employers, teachers, and religious or spiritual personnel are also important to reach a determination on a waiver. Part 1515 lists the information TSA reviews in making waiver determinations, which now also apply to TPS recipients.

Finally, on October 17, 2006 Congress passed the John Warner National Defense Authorization Act for Fiscal Year 2007 (P.L. 109-364). In that Act, Congress amended 46 U.S.C. 8103 to permit an alien allowed to be employed in the U.S. under the Immigration and Nationality Act who meets additional requirements for service as a steward aboard large passenger vessels to obtain an MMD. Since all MMD holders must obtain a TWIC, we have extended this statutory requirement to TWIC as well. Individuals who would satisfy the statutory requirements would most likely, if not always, possess a C-1/D Crewman Visa. The C-1/D visa has been added to the list of acceptable restricted nonimmigrant visas.

Table 2 indicates the types of visas that a lawful nonimmigrant with a restricted visa must hold in order to demonstrate eligibility to apply for a 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 Crewman Visa

8 CFR 214.2(c)(D)

For alien crewmen serving in good faith in a capacity required for normal operation and service on board a vessel who intends to land temporarily and solely in pursuit of his calling as a vessel crewman.

E-1

Treaty Trader (see 8 CFR 214.2(e)(1))

For nationals of a country with which the United States maintains a treaty of commerce and navigation who is coming to the United States to carry on substantial trade, including trade in services or technology, principally between the United States and the treaty country, or to develop and direct the operations of an enterprise in which the national has invested. The employee must intend to depart the United States upon the expiration or termination of E-1 status.

E-2

Treaty Investor (see 8 CFR 214.2(e)(2))

An alien employee of a treaty investor, if otherwise admissible, may be classified as E-2 if the employee is in or is coming to the United States to engage in duties of an executive or supervisory 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 employee must have the same nationality as the principal alien employer. In addition, the employee must intend to depart the United States upon the expiration or termination of E-2 status.

E-3

Australian in Specialty Occupation

The E-3 is a new visa category only for Australians coming to the U.S. to work temporarily in a specialty occupation.

H-1B

Specialty Occupations (see 8 CFR 214.2(h)(4))

Persons who will perform services in a specialty occupation which requires theoretical and practical 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) Professional Visa (H-1B1)

Foreign nationals of countries which have Free Trade Agreements with the United States and 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 specifying 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 employed by a parent, branch, affiliate, or subsidiary of that employer in a managerial or executive capacity, or in a position requiring specialized knowledge.

O-1

Extraordinary Ability or Achievement

An alien who has extraordinary ability in the sciences, arts, education, or athletics, which has been demonstrated by sustained national or international achievement.

TN

North American Free Trade Agreement (NAFTA) visas for Canadians and Mexicans

The nonimmigrant NAFTA Professional (TN) visa allows citizens of Canada and Mexico, as NAFTA professionals, to work in the United States.

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 Academy or comparable State maritime school and hold this visa are permitted to apply for a TWIC.

We are making an additional change to the application information required of TWIC applicants who are not U.S. nationals. In 49 CFR 1572.17, we are requiring all aliens to bring to enrollment the documents that verify the immigration status they are in as of the date of enrollment. We will examine the documents to ensure that the applicant is eligible to apply for a TWIC under the immigration standards and then scan the documents into the TSA system so that they become part of the enrollment record.

In addition, we are requiring drivers with commercial licenses from Canada to provide a Canadian passport at enrollment, if they do not hold a Free and Secure Trade (FAST) card

6

. We know that Canadian TWIC applicants who hold a FAST card have completed a thorough background check by the Canadian government. However, Canadian provinces do not always require Canadian citizenship or in some cases, lawful presence, when issuing a drivers license. Therefore, we do not believe it is advisable to issue a TWIC based solely on a Canadian driver's license. We are not requiring this of Mexican-licensed drivers who apply for a TWIC because they must obtain border crossing documents to enter the United States, which are issued after the Mexican government has completed a review of the individual and determined they are Mexican citizens or are lawfully present in Mexico.

6

The FAST program is a cooperative effort between the Bureau of Customs and Border Patrol (CBP) and the governments of Canada and Mexico to coordinate processes for the clearance of commercial shipments at the U.S.-Canada and U.S.-Mexico borders. Participants in the FAST program, which requires successful completion of a background records check, may receive expedited entrance privileges at the northern and southern borders.

(e). Mental Incapacity

TSA is changing the waiver process to permit applicants who in the past have been involuntarily committed to a mental health facility or declared mentally incapable of handling their affairs to apply for a waiver without always having to provide documentation showing that the disqualifying condition is no longer present, as we have previously. For example, there may be cases in which an individual has an addiction to drugs or alcohol and is involuntarily committed to a mental health facility to complete rehabilitation. If the individual wishes to apply for a waiver, documents showing that applicant completed rehabilitation successfully would be critical to TSA's determination on the waiver request. The individual may no longer use illegal drugs or drink alcohol, but technically they may still have an addiction. Therefore, we believe TSA should decide these waiver requests on a case-by-case basis. The documentation submitted to TSA in support of the waiver request will be very important in making the waiver determination. Applicants and/or their representatives should carefully consider and include all available information TSA can use to determine if the applicant poses a security threat.

(f). Fees

Section 520 of the 2004 DHS Appropriations Act, Pub. L. 108-90, requires TSA to collect reasonable fees for providing credentialing and background investigations in the field of transportation. Fees may be collected to pay for the costs of: (1) Conducting or obtaining a CHRC; (2) reviewing available law enforcement databases, commercial databases, and records of other governmental and international agencies; (3) reviewing and adjudicating requests for waivers and appeals of TSA decisions; and (4) other costs related to

performing the security threat assessment or the background records check, or providing the credential. Section 520 requires that any fee collected must be available only to pay for the costs incurred in providing services in connection with performing the security threat assessment, or the background records check, or providing the credential. The funds generated by the fee do not have a limited period of time in which they must be used. They can be used until they are fully spent. TSA has also established the fees in this final rule pursuant to the requirements of the General User Fee Statute (31 U.S.C. 9701), which requires fees to be fair and based on: (1) Costs to the government; (2) the value of the service or thing to the recipient; (3) public policy or interest served; and (4) other relevant facts.

In this final rule, TSA uses slightly different terminology to describe the three types of fees and their segments than was used in the NPRM. The Standard TWIC Fee is the fee that an applicant would pay to obtain or renew a TWIC. The Standard TWIC Fee contains the following segments:

• Enrollment Segment (referred to as the “Information Collection/Credential Issuance Fee” in the NPRM),

• Full Card Production/Security Threat Assessment (STA) Segment (referred to as the “Threat Assessment/Credential Production Fee” in the NPRM), and

• FBI Segment (referred to as the “FBI Fee” in the NPRM).

The Reduced TWIC Fee is the fee an applicant would pay to obtain a TWIC when the applicant has undergone a comparable threat assessment in connection with an HME, a FAST card, or other threat assessment, as provided in § 1572.5(e), or holds an MMD or License as provided in § 1572.19(b). The Reduced TWIC fee is made up of the following segments:

• Enrollment Segment, and

• Reduced Card Production/STA Segment (referred to as the “reduced fee for the Security Threat Assessment/Credential Production Fee” in the NPRM).

The Card Replacement Fee is the fee that an applicant would pay to replace a credential that has been lost, stolen, or damaged and is made up of the Card Replacement Segment.

In the TWIC NPRM, TSA proposed to set the Standard TWIC Fee at $129-149, including the Enrollment Segment of $45-65, the Full Card Production/Security Threat Assessment (STA) Segment of $62, and the FBI Segment of $22. TSA proposed that the Reduced TWIC Fee be set at $95-115, including the Enrollment Segment of $45-65 and the Reduced Card Production/STA Segment of $50.

7

TSA proposed that the Card Replacement Fee, composed of the Card Replacement Segment, be set at $36.

See

71 FR at 29405, 29428-29431.

7

While the proposed rule text at § 1572.503(2) indicated that the Reduced TWIC Fee included both the Enrollment Segment and the Reduced Card Production/STA Segment, it erroneously listed the fee at $50. The total for this fee was correctly stated in the preamble as $95. See 98 FR at 29045.

In this final rule, TSA establishes the Standard TWIC Fee at $139-159, including the Enrollment Segment of $45-65, the Full Card Production/STA Segment of $72, and the FBI Segment of $22.

8

The total Reduced TWIC Fee is set at $107-127, including the Enrollment Segment of $45-53 and the Reduced Card Production/STA Segment of $62.

8

If the FBI changes its fee in the future, TSA will collect the amended fee.

In this final rule, TSA establishes the Replacement Card Fee of $36, as was in the NPRM. TSA's analysis shows that this fee is costed out at $60, but is not including that amount in the final rule due to the large difference in amount from the NPRM. TSA proposes in this final rule to change the Replacement Card Fee to $60 based on the reevaluation of costs elements discussed below, and requests comments only on this fee.

See

Request for Comments in Section VI.

Table 3 compares the NPRM per person fee and segments amounts to the final rule per person fee and segments amounts:

9

While this rule sets a Card Replacement Fee of $36, TSA is proposing that the Card Replacement Fee be increased to $60 and is seeking comment only on the Card Replacement Fee. See Request for Comments Section VI.

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 a fee until after TSA publishes this notice in the

Federal Register

.

Cost Components

The NPRM identified the cost components from which the proposed fees were calculated. These are the same components that were used to calculate the final fees. However, the fees themselves have changed for the reasons described in this section. Since publication of the NPRM, the TWIC program has reevaluated the cost estimates that drive the TWIC fees. Table 4 lists the cost components of the TWIC Program as estimated for the NPRM and compares them to the costs estimated for the final rule. These cost components are used to derive the TWIC fees that must be collected to fully recover program costs.

Table 4.—5-Year Total TWIC Cost Components—NPRM vs. Final Rule

Cost components

NPRM

Final rule

Percent change

Standard TWIC fee

Reduced TWIC fee

Card replacement fee

Enrollment/Issuance

$65,212,285

$65,980,199

1

X

X

X

10

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 components decreased from the NPRM costs estimates, while some increased. The Enrollment/Issuance

cost component increased by approximately 1 percent due to further analysis that indicated a

need to account for the contractor fee associated with replacing a lost, stolen, or damaged card. This contractor fee is estimated at $5. This card re-issuance cost within the Card Replacement Fee was not included as part of the NPRM estimate.

10

While the majority of the Enrollment/Issuance requirements have already been satisfied by the applicant through initial enrollment, there are still some enrollment/issuance functions associated with these card replacements, such as overhead. Therefore, these applicants will not be burdened with the normal enrollment/issuance cost component.

11

The Threat Assessments, IDMS, Card Production and Program Support Components makeup the Card Production/STA and the FBI Segments.

12

While the majority of the Threat Assessment requirements have already been satisfied by the applicant through participation in a previous security fee, there are still some threat assessment functions associated with these applicants, such as CSOC activities. Therefore, these applicants will pay the Reduced Card Productions/STA Segment.

The Threat Assessments cost component decreased overall by approximately 24 percent. While the costs associated with adjudication by ALJs have been added, cost reductions for perpetual vetting and threat assessment gateway account for the overall reduction.

The IDMS cost component increased based on a re-evaluation of the overall IDMS costs. The program office identified: (1) The need to increase the hardware and software required to obtain a Security Certification & Accreditation, and to support the full volume of TWIC applicants; (2) system changes required to address security vulnerabilities; and (3) increases in contractor support necessary for systems operations and maintenance. The total increase is estimated at $19 per credential produced.

The Card Production cost increased by approximately 39 percent based on two factors. First, in order to produce cards more rapidly during the initial enrollment, additional shifts were required at the card production facility. This decision was made in order to address comments to the NPRM that cards needed to be produced as quickly as possible. Second, TSA and Coast Guard received comments to the NPRM on the need to support contactless biometric authentication based on the harsh conditions of the maritime environment and operational efficiencies. In order to address these comments TSA and the Coast Guard have established a NMSAC working group to recommend a contactless TWIC technology specification. Second, we have added a fee to cover future technology-related product improvements to the TWIC system and credential. Technology improvements occur rapidly and in order to take advantage of the efficiency these improvements provide, we must plan for that cost. Building in the cost of technology and system improvements is a common practice for programs that rely so heavily on software and hardware to collect and transmit large amounts of information.

The Program Support cost decreased by approximately 17 percent because the program office reevaluated and decreased program staffing levels required to support the maritime population after the initial maritime enrollment period. Additionally, Program Support costs related to interagency communication requirements also decreased. These cost reductions resulted in approximately a $2 per card decrease.

The discussion below describes the cost components associated with each type of fee, Standard, Reduced and Card Replacement. Although the overall program costs increased by approximately 12 percent, the three types of TWIC fees did not increase by 12 percent as each fee is composed of different cost components.

The per person cost segments for the Standard TWIC Fee are derived from all five of the cost components in the Total TWIC Cost Components table above—Enrollment/Issuance, Threat Assessments,

13

IDMS, Card Production, and Program Support. Note that the IDMS, Card Production, Program Support cost components makeup the Card Production/STA and FBI segments of the Standard and Reduced TWIC Fees. The net increase in the total for the Standard TWIC Fee is based primarily on the increase of the IDMS and Card Production cost components, as described above in the analysis of the TWIC cost components.

13

The Threat Assessment cost component includes the FBI Segment of the Standard TWIC Fee.

The per person cost segments for the Reduced TWIC Fee are also derived from five of the cost components in the Total TWIC Cost Components Table 4—Enrollment/Issuance, Threat Assessments,

14

IDMS, Card Production, and Program Support. The net increase in the Reduced TWIC Fee is based on the reevaluation of the cost components, as described in the analysis of the TWIC cost components above. It should be noted that the reduced fee does not include the entire Threat Assessments cost component. Because the Reduced TWIC Fee does not include this entire cost component, this fee does not entirely benefit from the reduction in the Threat Assessments cost component, and therefore, increased at a greater percentage than the Standard TWIC Fee.

14

As stated in footnote 11, although the majority of the Threat Assessment requirements have already been satisfied by the applicant through participation in a previous security fee, there are still some threat assessement functions associated with these applicants.

The per person cost for the Card Replacement Fee is derived from four of the cost components in the Total TWIC Cost Components Table 4—Enrollment/Issuance,

15

IDMS, Card Production, and Program Support. The net increase in the Card Replacement Fee of $24 is based on the reevaluation of the cost components, as described in the analysis of TWIC cost components

above. It should be noted that this fee does not include the entire Enrollment/Issuance cost component or any of the Threat Assessments cost component. Because this fee does not include the Threat Assessments cost component, this fee does not benefit from the reduction in the Threat Assessments cost component. Thus, the Card Replacement Fee has increased at a greater percentage than the Standard and Reduced TWIC Fees. Because this fee is substantially higher than that in the NPRM, TSA is establishing $36 as the fee in this rule but is proposing to increase the fee to $60 and is providing the public an opportunity to submit additional comments on the card replacement fee.

See

Request for Comments in Section VI.

15

As stated in footnote 10, although the majority of the Enrollment/Issuance requirements have alread been satisfied by the applicant through initial enrollment, there are still some enrollment/issuance functions associated with these card replacements, such as overhead.

An Additional Notice on Fees

As Table 3 indicates, the Enrollment Segment is a range of $45-$65 for both the NPRM and the final rule. TSA is unable to finalize the fee because we do not yet have a final contract with an enrollment provider. When a final contract is executed, TSA will publish a Notice in the

Federal Register

that will specify the amount for that segment and all of the fees. Therefore, the rule text does not contain TSA's exact fee numbers, but it does include the FBI fee. No applicant will be required to pay a fee until after TSA publishes this notice in the

Federal Register

.

(g). Drivers Licensed in Mexico and Canada Transporting Hazardous Materials

In accordance with sec. 7105 of SAFETEA-LU, commercial motor vehicle drivers licensed in Canada or Mexico may not transport hazardous materials into or within the United States unless they undergo a background check that is similar to that undergone by U.S.-licensed drivers.

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TSA has determined that a card issued by the Bureau of Customs and Border Protection (CBP) under the FAST program provides a similar background check.

See

71 FR 44874 (August 7, 2006). The security threat assessment that is required under this final rule for issuance of a TWIC is the same background check currently required for U.S.-licensed drivers with HMEs. Therefore, we are amending 49 CFR 1572.201 to allow possession of a TWIC card by a driver licensed in Mexico or Canada to satisfy the SAFETEA-LU requirement. Thus, drivers licensed in Canada or Mexico may obtain either a FAST card or a TWIC to meet the requirement that they have a background check that is similar to that of a U.S. hazmat driver.

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49 U.S.C. 5103a(h).

In this final rule, for administrative purposes, we are reprinting the entire part 1572. We are making only a couple of changes to § 1572.203, however. We are changing its title to more clearly reflect its scope, to “Transportation of explosives from Canada to the United States via railroad carrier.” In § 1572.203(b) we are changing the definition of “Customs Service” to “Customs and Border Protection (CBP)” to reflect the reorganization of the U.S. Customs Service under the Homeland Security Act of 2002.

(h). Compliance and Enforcement Matters

We are adding a new section. (49 CFR 1570.7) to make it clear that it is a violation of this rule, and other applicable federal laws, to circumvent or tamper with the access control procedures. This section also clarifies that it is a violation for any person to use or attempt to use a credential that was issued to, or a security threat assessment conducted for, another person. In addition, no person may make, cause to be made, use, or cause to use, a false or fraudulently-created TWIC or security threat assessment issued or conducted under this subchapter. Finally, it is a violation of this rule, and other applicable federal laws, for any person to cause or attempt to cause another person to violate these procedures. Violations of any provision of this rule may be subject to such civil, criminal or administrative actions as are authorized under federal law.

Note that the acts identified in § 1570.7 may also be violations of Federal criminal law, such as 18 U.S.C. 701 (Official badges, identification cards, other insignia), 18 U.S.C. 1001 (Statements or entries generally), 18 U.S.C. 1028 (Fraud and related activity in connection with identification documents and information), 18 U.S.C. 1029 (Fraud and related activity in connection with access devices). In appropriate cases, TSA will refer to the Department of Justice (DOJ) matters for criminal investigation and, if appropriate, criminal prosecution.

Section 1570.9 is being added to make clear that a person must allow his or her TWIC to be inspected upon request of an appropriate official. For clarification purposes, Coast Guard has provided a similar requirement in 33 CFR 101.515(d) adopting the same language as § 1570.9.

As discussed in section C.4. of this preamble, § 1570.11, Compliance, inspection, and enforcement, was proposed in the NPRM as § 1572.41.

D. Anticipated Future Notices and Rulemaking

1. Notices

We will publish several notices in the

Federal Register

to facilitate implementation of the TWIC program. Specifically, a notice will be published:

(a) establishing the fees for the TWIC, as stated above in C.2(f);

(b) for each COTP zone, prior to beginning the enrollment period; and

(c) for each COTP zone, 90-days prior to requiring compliance with these regulations.

2. Rulemaking

In the future we will issue another NPRM to propose card reader requirements for MTSA-regulated vessels and facilities. It will be issued with a comment period that is long enough for all interested persons to reasonably be able to provide comment, and it will announce public meetings in a variety of places. We cannot, at this time, make any definitive statement on where those places will be, but we will consider the locations suggested by commenters and inform the public of upcoming meeting information in advance in the

Federal Register

.

E. Summary of TWIC Process Under the Final Rule

The TWIC program was developed to improve identity management and credentialing shortcomings that exist in segments of the transportation industry. TSA evaluated a variety of technologies, used field testing, and to the extent possible, incorporated the basic tenets of Homeland Security Presidential Directive 12 (HSPD-12)

17

to arrive at the credential and enrollment process implemented in this program. The standards for the program are to ensure that the credentialing processes: (1) Are administered by accredited providers; (2) are based on sound criteria for verifying an individual's identity; (3) include a credential that is resistant to fraud, tampering, counterfeiting and terrorist exploitation; and (4) ensure that the credential can be quickly and electronically authenticated.

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HSPD-12 requires Federal agencies and their contractors to adopt an identity management and credentialing system that uses biometrics.

The purpose of the TWIC program is to ensure that only authorized personnel who have successfully completed a security threat assessment have unescorted access to secure areas of maritime facilities and vessels. The credential will include a reference biometric that securely links the credential holder to the issued

credential. At any time, TWIC holders may be asked to confirm that they are the rightful owner of the credential by matching their biometric to the one stored on the credential. An individual's credential is revoked by TSA if disqualifying information is discovered or the credential is lost, damaged or stolen. When a credential is revoked, TSA lists it on the list of revoked cards, or ‘hotlist’ by the unique serial number assigned to the credential. Therefore, a revoked credential that is compared against the hotlist will be flagged and access would not be granted.

TSA has designed the TWIC process to maintain strict privacy controls so that a holder's biographic and biometric information cannot be compromised. The TWIC process implemented in this rule is described below from the perspective of an applicant.

1. Pre-Enrollment and Enrollment

TWIC enrollment will be conducted by TSA or TSA's agent operating under TSA's direction. These personnel are known as Trusted Agents. All Trusted Agents must successfully complete a TSA security threat assessment and receive extensive training before they are authorized to access documents, systems, or secure areas.

DHS will publish a notice in the

Federal Register

indicating when enrollment at a specific location will begin and when it is expected to terminate. Once DHS has published that notice, facility and vessel owners/operators (owners/operators) must notify workers of their responsibility to enroll into the TWIC program during the enrollment period. Regarding the compliance date for facilities, DHS will also publish this information in the

Federal Register

for each COTP zone at least 90-days in advance. Owners and operators are required to inform their employees of this date as well. (The implementation plan for enrollment is discussed in greater detail below.) TSA and the Coast Guard will work with owners/operators to ensure that they can provide applicants sufficient time to enroll, complete the security threat assessment and any necessary appeal or waiver process, and obtain the credential before the applicant is required to present the credential for access to a facility or vessel. As TWIC is implemented, owners/operators must give individuals at least 60 days notice to begin the enrollment process. Generally, TSA completes a threat assessment in approximately 10 days when there is no indication that the applicant may not meet the TWIC enrollment criteria. If criminal activity or other potentially disqualifying information is revealed, however, TSA cannot guarantee that such information will be favorably resolved and a threat assessment completed in less than 30 days.

Applicants are encouraged to “pre-enroll” online to reduce the time needed to complete the entire enrollment process at an enrollment center. The convenience of pre-enrollment is a significant benefit for applicants and reduces strain on the enrollment centers. The pre-enrollment process allows applicants to provide much of the biographic information required for enrollment and to select an enrollment center where they wish to complete enrollment. While pre-enrolling, applicants may schedule an appointment to complete enrollment at an enrollment center, although appointments are not required at enrollment centers. For pre-enrollment, applicants may use a personal computer with access to the internet or they may use TWIC kiosks. The TWIC kiosks will be set up by the TSA agent when enrollment begins at locations convenient to the affected population, including enrollment centers, and are similar to an ATM machine.

The Web address for pre-enrollment and all additional information relating to the TWIC program is

www.tsa.gov/twic.

The TWIC Web site also will list the documents the applicant must bring to the enrollment center to verify identity so that all applicants can be properly prepared. Mariners who must prove U.S. citizenship or immigration status to obtain an MMD, license, COR, STCW endorsement or MMC must provide the documents required by the Coast Guard at 46 CFR chapter I, subchapter B at the time of enrollment.

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TSA will scan these documents into the enrollment record, which will be forwarded to the Coast Guard. In addition, applicants who are not U.S. citizens or nationals must bring their immigration documents, including visas and naturalization paperwork, to enrollment so that the documents which prove legal presence in the United States can be scanned into the enrollment record.

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In order to allow the Coast Guard to remove the requirement that all mariners apply for their credentials in person at a Regional Examination Center (REC), it is necessary for TSA to document proof of citizenship, as the citizenship requirements for certain Coast Guard-issued mariner credentials are stricter than the overall TWIC citizenship requirements. For more information on mariner credentials and the Coast Guard's plan to remove the physical appearance at an REC requirement,

see

the Coast Guard SNPRM titled “Consolidation of Merchant Mariner Qualification Credentials” published elsewhere in today's

Federal Register

.

At the enrollment center, applicants who pre-enroll must provide documents to verify their identity, confirm that the information provided during pre-enrollment is correct, submit biometrics identifiers, and sign the enrollment documents. At the enrollment center, all applicants will receive a privacy notice and consent form, by which they agree to provide personal information for the security threat assessment and credential. (For applicants who pre-enroll, the privacy notice is provided with the application on-line, but the applicant must acknowledge receipt of the notice in writing at the enrollment center.) If an applicant fails to sign the consent form or does not have the required documents to authenticate identity, enrollment will not proceed.

All information collected at the enrollment center or during the pre-enrollment process, including the signed privacy consent form and identity documents, is scanned into the TSA system for storage. All information is encrypted or stored using methods that protect the information from unauthorized retrieval or use. If an enrollment center temporarily loses its internet connection, the enrollment data is encrypted and stored on the enrollment workstation, but only until an internet connection is restored.

Applicants will provide fingerprints from each hand and sit for a digital photograph. We will collect a print from all 10 fingers unless the applicant has lost or seriously injured his or her fingers. TSA will provide alternative procedures for enrollment centers to use if an applicant cannot provide any fingerprints. The fingerprints and photograph will be electronically captured at the enrollment center and made part of the applicant's TWIC enrollment record. The fingerprint images collected from each applicant will be submitted to the FBI for the CHRC.

The TWIC fee, which covers the cost of enrollment, threat assessment, and credential production and delivery, will be collected from the applicant at the enrollment center. Payment can be made by cashier's check, money order, or credit card. The TWIC enrollment fee is non-refundable, even if the threat assessment results in denying a TWIC to the applicant.

The entire enrollment record (including all fingerprints collected) will be transmitted to the TSA system, encrypted, and segmented to prevent unauthorized use. The TSA system acknowledges receipt of the enrollment record, at which time all enrollment data is automatically deleted from the enrollment workstation. At this point,

enrollment data is stored only in the TSA system, and is stored there as encrypted data. The TSA system contains many feedback mechanisms to validate the transmission and receipt of data at key points in the process. The status of each transmission is recorded within the system.

As discussed in the TWIC NPRM (71 FR 29402), during TSA's Prototype testing phase of the program, the average time needed for an applicant who pre-enrolled to complete enrollment was 10 minutes, 21 seconds. TSA expects that it will take approximately fifteen minutes to complete enrollment of applicants who do not pre-enroll.

TSA and Coast Guard plan to use a phased enrollment approach based on risk assessment and cost/benefit analysis to implement the program nationwide. Locations that are considered critical and provide the greatest number of individual applicants will be among the earliest enrollment sites. As stated above, TSA will publish a notice in the

Federal Register

indicating when enrollment at a specific location will begin and when it is expected to terminate. In addition, DHS will publish a notice in the

Federal Register

indicating the compliance date for each COTP zone. This notice will be published at least 90 days prior to the compliance date. There are approximately 130 locations where TSA plans to enroll applicants. TSA and Coast Guard will work closely with the maritime industry to ensure that owners/operators and workers are given as much notice as possible of the commencement of enrollment at their location. (See the discussion of § 1572.19 below for additional information on the timing of enrollment.) TSA will use a combination of fixed and mobile enrollment stations to make the enrollment process as efficient as possible for applicants and owners/operators.

2. Adjudication of Security Threat Assessment

Following enrollment, the TSA system sends pertinent parts of the record to various sources so that appropriate terrorist threat, criminal history, and immigration checks can be performed. When the checks are completed, TSA makes a determination whether to issue a TWIC to the applicant and notifies the applicant of that decision. If the applicant is deemed to be qualified, the TSA system notifies the credential production portion of the system to create a credential. TSA sends the applicant a Determination of No Security Threat via U.S. mail, and the TSA system notifies the applicant when the credential is ready to be retrieved from the enrollment center. Notifications from the TSA system that a credential is ready for pick-up will be through e-mail or voice mail, depending on the preference the applicant expresses on the application.

If TSA determines that the applicant is not qualified, TSA sends an Initial Determination of Threat Assessment to the applicant via U.S. mail, with information concerning the nature of the disqualification, and how the applicant may appeal the determination or apply for a waiver of the standards. If the applicant proceeds with an appeal or application for waiver that is successful, TSA will notify the applicant accordingly and the credential production process begins. (The appeal and waiver processes are discussed in greater detail below in the discussion of 49 CFR part 1515.)

3. Credential Production and Delivery

If the applicant is deemed by TSA to be qualified to receive a TWIC, the TSA system generates an order to produce a credential. The TWIC is produced at a government credential production facility. The face of the TWIC credential contains the applicant's photograph, name, TWIC expiration date, and a unique credential number. In addition, the credential will store a reference biometric, a personal identification number (PIN) selected by the applicant, a digital facial image, an expiration date, and a Federal Agency Smart Credential number. The PIN can subsequently be used as an additional security factor in authenticating identity and authorizing use of the credential; or it can be used as the primary verification tool if the biometric is inoperative for some reason.

4. Receiving the Credential

The TSA system will notify the applicant when the credential is ready, and what if any additional steps the applicant must take to receive the credential. Once the enrollment and issuance process is completed, the credential is activated and is ready to be presented at a facility or vessel for use as an access control tool. The TWIC security threat assessment and credential are valid for five years, unless information is discovered that causes TSA to revoke the credential.

5. Lost, Damaged, or Stolen TWICs

Replacement TWICs are available if a credential is lost, stolen, or damaged. As soon as a TWIC holder becomes aware that his credential is missing or damaged, he must report this fact by calling the TWIC Call Center which will be open 24 hours per day, 7 days a week. TSA will post the Call Center number on the TWIC web site as soon as it is available, and it will be posted at all enrollment centers and kiosks. The Center follows a standard process to revoke the credential, and order printing and transmission of a replacement. TSA adds the lost, damaged or stolen credential to the ‘hotlist,’ which includes the Smart Card number of all credentials that TSA has revoked. Applicants must pay a fee of $36

19

to cover the cost of invalidating the previous credential, production of a replacement credential, shipping, and other appropriate program costs. The reissued TWIC will have the same expiration date as the lost/damaged/stolen TWIC.

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We request comments on changes to the card replacement fee in Section VI below.

6. Renewal

TWICs issued under this rule remain valid for a period of five years, unless renewed before the five-year term ends. Upon renewal, an applicant receives a new credential and the old credential is invalidated in the TSA System. TSA does not plan to notify TWIC holders when their credential is about to expire because the expiration date will be displayed on the face of the credential. To renew a TWIC, the holder must appear at any enrollment center, at least 30 days before expiration, to initiate the renewal process. This will provide sufficient time for TSA to conduct the security threat assessment and the Coast Guard to complete any review necessary to renew any required mariner documents. During renewal, applicants must provide the same biographic and biometric information and identity verification documents required in the initial enrollment and pay the associated fees. Note that the TWIC web site will maintain a list of documents that may be used to verify identity, which may change over time. A new credential is issued upon renewal using the same issuance process as used in the initial TWIC issuance and the expired credential will be invalidated. The newly issued credential will have an expiration date five years from the date of issuance of the new credential. Although renewal only occurs every five years, TSA conducts recurring checks on individuals throughout the five year period, so that newly-discovered information informs the access rights of individuals.

7. Call Center

Toll-free TWIC Call Center (Help Desk) support will provide around-the-clock service for transportation workers, facility operators, and others who require assistance. Assistance includes help for pre-enrollment; enrollment; and lost, stolen, or damaged card reporting and replacement. Help will also be available for scheduling enrollment appointments, locating the closest enrollment facility to an applicant, guiding applicants through the Web-based pre-enrollment process, and for checking on the status of a TWIC application.

F. SAFE Port Act of 2006

On October 13, 2006, the Security and Accountability for Every Port Act of 2006 (SAFE Port Act) (Pub. L. 109-347) was enacted. The portions of the Act which relate to the TWIC program are discussed below.

Section 104(a) of the SAFE Port Act contains a number of amendments to the basic requirement in MTSA for credentialing codified in 46 U.S.C. 70105. New sec. 70105(g) mandates concurrent processing by TSA and the Coast Guard of an individual's application for an MMD

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and a TWIC. This final rule is in compliance with this requirement. TSA will share with the Coast Guard the individual's CHRC, fingerprints, photograph and proofs of citizenship and identity, which will allow the Coast Guard to begin evaluating whether the individual is qualified to obtain an MMD while TSA completes its security threat assessment. TSA will also share the results of their security threat assessment with the Coast Guard to ensure that MMDs are only issued to individuals who pass the security threat assessment and are issued a TWIC. Thus, such applicants will only submit one set of fingerprints and other information relating to citizenship, alien status, and criminal history, which will be used by both TSA and the Coast Guard.

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Although the SAFE Port Act only created this requirement for MMDs, TSA and the Coast Guard have also applied concurrent processing, a longer time period to apply for an initial TWIC, and reduced fees to licenses, CORs, STCW endorsements, and the MMC.

New sec. 70105(h) requires that applicants who have passed a security threat assessment for an HME or MMD pay only for the costs associated with the issuance, production, and management of the TWIC and are not charged for the cost of another threat assessment. This final rule is in compliance with this requirement in that TSA will not charge those who already hold an HME or MMD for an additional threat assessment under TWIC. Rather, TSA will charge a reduced fee.

New sec. 70105(i) provides requirements for implementing TWIC across the nation by prioritizing the ports based on risk, and requires that the TWIC program is to be implemented according to the following schedule: (1) top ten priority ports by July 1, 2007; (2) the next forty priority ports by January 1, 2008; and (3) all other ports by January 1, 2009. Under new sec. 70105(j) each application for a TWIC made by someone holding an MMD as of the date of enactment of this bill must be processed by January 1, 2009. We are now planning how to meet these requirements and will establish the implementation schedule accordingly.

New sec. 70105(k) requires DHS to conduct a pilot program on card readers as set out in that section. DHS is currently analyzing how best to meet these requirements, and will begin the pilot program as soon as practicable.

Under new sec. 70105(m) DHS may not require card readers to be placed aboard a ship unless the crew's number is in excess of the number determined to require a reader or if the Secretary determines that the vessel is at risk of a severe transportation security incident. When DHS drafts the rule that will require use of card readers by vessel owners and operators, it will do so in compliance with this requirement.

SAFE Port Act sec. 104(b) has additional amendments to MTSA. It revises 46 U.S.C. 70105(b) by adding a paragraph making clear the Secretary has the discretion to add to the list of those individuals who otherwise may be required to obtain a TWIC. The Secretary may apply TWIC requirements to individuals including those “not otherwise covered by this subsection”. TSA has exercised this discretion by allowing Canadian and Mexican commercial drivers who transport hazardous materials to obtain TWICs, which will allow them to transport hazardous materials in the United States. Further, SAFE Port Act sec. 104(b) clarifies in sec. 70105(c) that DHS must establish a waiver and appeal process for applicants denied a TWIC under sec. 70105(c)(1)(A) or (B) (criminal history) or (D) (otherwise poses a security threat). TSA's new process in 49 CFR part 1515 complies with this requirement.

Under SAFE Port Act sec. 104(c), the deadline for final TWIC regulations remains January 1, 2007. Further, the regulation must include a provision for an interim check against terrorist watchlist databases so as to enable new workers to start working immediately. This final rule is in compliance with this requirement. As explained in detail elsewhere in this preamble, owners or operators wishing to put their newly hired direct employees to work immediately, prior to issuance of the new hire's TWIC, may do so provided that the new hire is successfully checked against various terrorist databases. The procedure for running the new hire's information through these checks can be found in 33 CFR 104.267, 105.257, and 106.262.

SAFE Port Act sec. 106 states that applicants convicted of treason, espionage, sedition, and crimes listed in chapter 113B of title 18, U.S.C., or comparable State laws must be disqualified from holding a TWIC. The list of disqualifying crimes in 49 CFR 1572.103 complies with this requirement by including these crimes as disqualifying.

III. Discussion of Comments

TSA and the Coast Guard received approximately 1770 comments on the TWIC NPRM during the 45-day comment period. In addition, an estimated 1200 people attended the four public meetings that were held between May 31 and June 7, 2006. Copies of the written comments received, as well as transcripts of the public meetings, are available to the public on

www.regulations.gov

at the public docket for this rulemaking action.

Numerous commenters supported the concept and purpose of the TWIC program as a method of protecting national maritime security. Some expressed their support unequivocally. One commenter requested that its port be selected for the first phase of the enrollment and implementation process. Several commenters who generally agreed with the idea of the TWIC, also criticized certain details of the proposal, expressed qualifications of various kinds, or said the proposal needed to be more efficient, workable, and fair. Some terminal operators and marine engineers who supported TWIC said that although it would achieve greater maritime security, they were concerned about its burden on industry or noted that security needed to be balanced against fairness for maritime workers. One commenter who generally supported the implementation of TWIC was concerned about the impact of the proposed rules on the efficiency of port facility operations, and suggested a more phased and flexible approach. Another commenter asked for more of a risk-management approach with a performance-based set of guidelines and a reevaluated technology. An

association of maritime operators supported security and background checks and digital fingerprint and photographs, but was concerned about the short timeline for implementation, the absence of facilities to provide the necessary services, and the social and economic burden imposed on individuals. Another commenter who supported TWIC thought that the requirements for who must possess a TWIC was over inclusive and that waivers or exemption processes should be added to lower the overall number of people who would require a TWIC. A commenter noted that although employers were responsible for notifying employees of the TWIC requirement, employer sponsorship of the TWIC program was not desirable.

In contrast, many commenters expressed strong general opposition to TWIC without providing explicit reasons. Some said it was unnecessary and unjustified, and would not improve maritime security. Some argued that the rule would be harmful. These commenters cited concerns that TWIC was not the most effective and economic approach, it would adversely affect staffing of vessels and port facilities, and it would cause economic hardship on the industry and individuals. Commenters also stated that TWIC was inappropriate for the inland marine industry, it would harm stevedore/terminal operators, and it was an unnecessary cost and duplication of effort where seaport access credentials are currently in use. One commenter stated that although the current system of licensing and documenting maritime personnel is failing or broken, the addition of TWIC will only add additional delays and burden. One commenter argued that the largest threat existed from foreign vessels, and they should not be excluded. Another commenter found the rule “large-port-centric” and disapproved of this “one-size-fits-all” approach.

TSA's and Coast Guard's responses to the comments are discussed below.

A. Requests for Extension of Comment Period and Additional Public Meetings

We received numerous requests to extend the comment period past the 45 days provided in the NPRM. We also received a significant number of comments requesting that we hold additional public meetings. These requests included a large number of supporting reasons.

Several commenters said that TSA and the Coast Guard had not done enough to obtain information about the concerns of affected maritime workers and industries before going forward with the TWIC rule, and the rule schedule should be extended to allow time for the collection of more information, with public meetings in more sections of the country, such as the Gulf Coast and Great Lakes ports. One commenter said the rule was skewed toward the issues involving large ports. A U.S. Senator argued that more information should have been collected on the impact of the rule on both the inland barge industry and the for-hire passenger excursion boat industry, and an association argued that there was little appreciation of the operational realities of the tugboat, towboat, and barge industry. Another commenter saw little reference to the domestic passenger fleet. Commenters listed the following organizations that they thought should have been consulted: the Passenger Vessel Association, American Waterways Operators Association, the Towing Safety Advisory Committee, the Merchant Personnel Advisory Committee, American Petroleum Institute (API), Offshore Mariner Safety Association (OMSA), and other maritime organizations.

We have carefully considered the comments submitted and nonetheless determined that it is not advisable to extend the comment period, nor did we hold additional public meetings. We considered delaying implementation of this entire project but determined that the security risk associated with such a delay is not acceptable. While the “name checks” being completed by TSA under the Notice published by the Coast Guard on April 28, 2006 (71 FR 25066) do provide some security to the ports, we need the added layer of security that issuing TWICs provides. First, the current name check regime established through the Coast Guard Notice checks names against the terrorist watch lists and immigration databases. With TWIC, we will also check an individual's criminal history and conduct an enhanced immigration check. Second, the interim vetting regime only applies to permanent employees and long-term contractors of facilities and longshoremen, whereas the TWIC program provides the benefit of performing checks on all individuals with unescorted access to both facilities and vessels. Finally, the TWIC program will provide the owners/operators with the piece that the interim vetting regime is missing—namely, a universal credential to verify whether an individual requesting access to a vessel or facility has been screened and determined not to be a security threat. With the Coast Guard spot checks, we can also verify, on a random basis, the validity of the TWICs being used to gain entry to vessels and facilities.

As we began reviewing the comments we received at the public meetings and on the docket, we realized that there were some portions of the NPRM that were not ready to be implemented. Most important among these pieces were the card reader and biometric verification requirements. As a result, we have removed those requirements from the final rule. What remains is the requirement to apply for and hold a TWIC, the threat assessment standards to be used when processing TWIC applications, and the reduced access control requirements, where the TWIC is used as a visual identity badge at MTSA-regulated vessels and facilities. The Coast Guard intends to integrate the TWIC requirements into its already existing facility and vessel annual MTSA compliance exams, as well as through unannounced security spot checks to confirm the identity of the TWIC holder using hand-held card readers.

We will initiate a new rulemaking action after pilot testing TWIC readers in the maritime environment. Through that rulemaking action we will propose, seek comment on, and finalize the requirements for card readers. We will also hold public meetings during that rulemaking action, and will consider holding these meetings in any location suggested by commenters. Thus, while we determined that it was not in the public interest to delay implementation of the TWIC program to allow for an extended comment period or additional public meetings, we will be providing an additional opportunity for public participation before owners/operators of vessels and facilities will have to implement the card reader requirements.

B. Coast Guard Provisions

1. Definitions

(a) Requests To Add Additional Definitions

One commenter felt that using the word “ensure” in the regulations establishes an unreasonable standard of care that would require facilities to guarantee safety, and expose facilities to strict liability in the case of a terrorist incident. The commenter recommended that the final rule amend all uses of the word “ensure” in 33 CFR, chapter I, subchapter H.

We disagree. The word ensure, as used in current regulations as well as the TWIC NPRM, was used throughout subchapter H purposely, to designate where the ultimate responsibility for

various security functions would be found for enforcement purposes. We did not propose changing it in the TWIC NPRM and we have not changed it in the final rule.

One commenter recommended that the final rule better define the term “Federal Official” in 33 CFR 101.514, so that active duty and reserve military personnel, all Federal Civil Service employees, and people who hold Department of Defense (DOD) Common Access Card (CAC) cards are not required to obtain or possess a TWIC. We disagree with the suggested change, as the term Federal official is clear enough on its face, meaning individuals who are working for the Federal government. Section 101.514 allows these individuals to gain unescorted access to a vessel or facility using their agency-issued, HSPD-12 compliant identification card. Until an HSPD-12 card is available, these officials may use their agency's official credential—when representing that agency on offical duty—if that is the DOD CAC card, then the CAC card may be used.

One commenter noted that a definition for the term “official” is not provided in the proposed rule, and recommended that Federal, State, and local “officials” not requiring a TWIC for unescorted access should be limited to law enforcement, fire, rescue, and government employees that have been subjected to a background screening equivalent to the one conducted for issuance of a TWIC. We believe that the term “official” is clear enough in context, and as such we have not added a definition as suggested by the commenter. We recognize, however, that emergency responders may not fit into the “officials” category, and so we have added a new paragraph to § 101.514 to cover emergency responders during emergency situations.

One commenter recommended that the rule be amended to exclude persons working on vessels whose sole purpose is entertainment, such as musicians on passenger vessels. If this exclusion was not made, the commenter recommended that where a vessel engaged solely in entertainment has been inadvertently grouped with vessels of other classes, that the designation of various spaces aboard the vessels, and within those vessels' facilities, be more clearly defined in the final rule, including: (1) For passenger vessels, exclude the employees, whose workstation is limited to areas accessible by passengers, based on the fact that they are occupying the same areas as the passengers who are not subject to the requirement; and (2) apply the TWIC ruling only to the crew areas or persons with access to crew areas. This would allow operators to maintain the security of control stations, equipment rooms and voids, without disruption of access to other employee only areas of the vessel or a facility, which do not need to be restricted areas.

We agree with this comment. As discussed above in the section discussing changes to the Coast Guard provisions, we are adding a definition for “employee access areas,” for use only by passenger vessels and ferries. An employee access area is a defined space within the access control area of a ferry or passenger vessel that is open to employees but not passengers. It is not a secure area and does not require a TWIC for unescorted access. It may not include any areas defined as restricted areas in the VSP. Note, however, that any employee that needs to have unescorted access to areas of the vessel outside of the passenger or employee access areas will need to obtain a TWIC.

(b). TWIC

Two commenters recommended that all references to a “valid TWIC” be changed to “TWIC” since the definition of TWIC requires that it be valid and non-revoked. We agree and have made the suggested changes within 33 CFR parts 101 through 106. We have left the language in 46 CFR parts 10, 12, and 15, however, because in those places, the term TWIC is not tied to the definition in § 101.105.

(c). Public Access Area/Passenger Access Area

One commenter recommended that the definition of “public access area” for cargo vessels be the same as that for passenger vessels to allow similar flexibility. Alternatively, the commenter provided a separate definition of “public access area” that allows facilities to designate any area as such, provided the area is specified in the FSP.

One association noted that vessels other than “passenger vessels” are permitted to carry passengers, industrial personnel, or persons in addition to the crew. The association recommended that the final rule provide flexibility similar to passenger vessels for other types of vessels by providing the following definition of public access areas in 33 CFR part 101: “Public access areas means those defined spaces within a vessel, facility or OCS facility that do not require a TWIC for unescorted access. Any vessel, facility or OCS facility may designate areas as public access areas provided they are specified in the security plan.”

They further recommended that facilities owners and operators be provided flexibility similar to that of passengers in designating public access areas, and recommended that the following definition be added to part 105:

“§ 105.xxx Public access area.

(a) Any facility may designate areas within the facility as public access areas. Any such areas must be specified in the FSP.

(b) Public access areas are those defined spaces within a facility that do not require escorted access for persons not in possession of a TWIC.”

They also recommended that OCS facilities owners and operators be provided flexibility similar to that of passenger vessels in designating public access areas, and recommended that the following definition be added to part 106:

“§ 106.xxx Public access area.

(a) Any OCS facility may designate areas within the facility as public access areas. Any such areas must be specified in the FSP.

(b) Public access areas are those defined spaces within an OCS facility that do not require escorted access for persons not in possession of a TWIC.”

We disagree with these comments. The concept of a “passenger access area” has been included in the final rule to cover passenger vessels, ferries, and cruise ships,

i.e.

, those vessels that routinely, as part of their normal operating procedures, carry passengers. While we recognize that some cargo vessels may also, at times, carry passengers, we do not feel it is appropriate to expand this provision to other categories of vessels at this time. We feel that appropriate flexibility is given in the interpretation of “escort” to address these situations, while maintaining security. Additionally, facilities are already able to designate certain portions of their facility as “public access areas,” therefore we do not feel it necessary to expand the “passenger access area” concept to facilities at this time.

Several commenters recommended that the definition of “passenger access areas” be clarified in the final rule to state that no person, including employees, workers, and vendors, would need a TWIC to have unescorted access to a passenger access area on a vessel.

We have not amended the language as suggested, but agree with the commenters' concept. The proposed, and now final, definition of “passenger access area” states that these areas are not part of the secure area of the vessel. Thus, anyone requiring unescorted access to the passenger access area ONLY does not need to have a TWIC,

as he or she does not need unescorted access to a secure area. This covers passengers, employees, other workers, and vendors.

(d). Monitoring

One commenter felt that the definition of “monitoring” as used in current regulations and the TWIC NPRM, was ambiguous, confusing, and should be deleted. We disagree. The NPRM did not propose to change the definition of monitoring, and as such we are not making any changes in the final rule. For an explanation of what was meant by that term,

see

the final rule titled “Implementation of National Maritime Security Initiatives,” issued on October 22, 2003 (68 FR 60448).

(e). Breach of Security

One trade association recommended that the definition for “breach of security” as used in current regulations and the TWIC NPRM be clarified to allow certain individuals without a TWIC in secure areas, such as escorted persons and foreign seafarers conducting authorized ship's business. The commenter also recommended that the guidance in parts 104 through 106 be amended to clarify this.

Neither the NPRM nor the final rule amend the definition for “breach of security.” As stated in the NPRM, “[c]ircumstances that trigger the reporting requirement[s] in § 101.305 are highly fact-specific and difficult to define comprehensively.” (71 FR 29417). Generally speaking, finding properly escorted persons within a secure area would not, in and of itself, constitute a breach of security. One situation that would, with certainty, however, is finding someone unescorted within a secure area without a TWIC. This would constitute a breach of security. We will be issuing new guidance for parts 104 through 106, in the form of a NVIC, and will be sure to include provisions on what could constitute breaches of security or suspicious activity in the context of TWIC.

(f). Escorted/Unescorted Access

Several comments requested clarification and additional guidance on the definition of “escorting.” Several commenters requested additional clarification about the level of surveillance for personnel without a TWIC, and supported the use of surveillance and monitoring technology instead of physical escorting, or the use of one escort to monitor multiple individuals. The commenters said that constant, one-on-one supervision would be unduly burdensome.

Commenters also stated that the escorting and recordkeeping requirement would be too burdensome in terms of manpower, cost, and recordkeeping. Many of these commenters interpreted the definition to require the physical presence of one escort for each individual without a TWIC at all times while in a restricted area. Some of these commenters provided examples of situations where the requirement would be too burdensome. One port authority stated that it typically has over 100 temporary workers on site that would require escorts. Another commenter was concerned that the rule may prevent shore leave for European Union workers not holding a TWIC, particularly where an escort was unavailable or the regulations were interpreted inconsistently at different ports. One trade association felt that the requirement for escorting would be too burdensome for facilities without the manpower to escort individuals without TWIC, particularly in emergency situations when the workforce has been displaced. One commenter felt that the escort provisions should be unnecessary for foreign maritime facilities complying with the International Ship and Port Facilities Security Code (ISPS Code).

Several commenters were concerned about the need to escort repairmen, maintenance crews, truck drivers, delivery men, crews doing dockside checks of their vessel, musicians, caterers, and other workers, and the need for escorting during weekends and non-business hours when escorts might not be available. One commenter stated that it would have to provide escorts for technical representatives of foreign equipment manufacturers to work on its foreign-built (but U.S.-flagged) vessels. The company also said the rule would be “problematic” because it would require a constant escort for for

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