[Federal Register Volume 72, Number 16 (Thursday, January 25, 2007)]
[Rules and Regulations]
[Pages 3492-3604]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 07-19]



[[Page 3491]]

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Part II





Department of Homeland Security





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Coast Guard



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



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Transportation Security Administration



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49 CFR Parts 10, 12, and 15



Transportation Worker Identification Credential (TWIC) Implementation 
in the Maritime Sector; Final Rule



Consolidation of Merchant Mariner Qualification Credentials; Proposed 
Rule

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

[[Page 3492]]


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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.

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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

[[Page 3493]]

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: <a href="/cdn-cgi/l/email-protection#7a19081f1e1f140e131b1613141d3a1e1209541d150c"><span class="__cf_email__" data-cfemail="d0b3a2b5b4b5bea4b9b1bcb9beb790b4b8a3feb7bfa6">[email protected]</span></a>.
    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 
<a href="/cdn-cgi/l/email-protection#3d7e554f544e49545358137f5844584f7d59554e135a524b"><span class="__cf_email__" data-cfemail="2a69425843595e43444f04684f534f586a4e4259044d455c">[email protected]</span></a>.
    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.
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    \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.
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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

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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.
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    \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).
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    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

[[Page 3495]]

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

[[Page 3496]]

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

[[Page 3497]]

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 Sec.  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 Sec. Sec.  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.

[[Page 3498]]

(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

[[Page 3499]]

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 
Sec.  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 Sec.  1515.11.
    The ALJ review process set forth under Sec.  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

[[Page 3500]]

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 Sec.  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 Sec.  
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 Sec. Sec.  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 Sec.  1572.107, and a 
denial of a waiver of certain standards in Sec. Sec.  1572.103, 
1572.105, and 1572.109.
    An applicant who has received an Initial Determination of Threat 
Assessment based on Sec.  1572.107 may first appeal that determination 
using the procedures in new Sec.  1515.9. If after that appeal TSA 
continues its determination that the applicant is not qualified, the 
applicant may seek ALJ review under Sec.  1515.11.
    On the other hand, the determination that an applicant does or does 
not have a disqualifying criminal offense listed in Sec.  1572.103, 
immigration status in Sec.  1572.105, or mental capacity described in 
Sec.  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 Sec.  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 Sec.  1515.7. If a waiver is not granted, the applicant may seek 
review by an ALJ under Sec.  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 Sec.  1515.7 or 
who are seeking review of a Final Determination of Threat Assessment 
issued under Sec.  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 Sec.  
1515.7 or a new appeal under Sec.  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 Sec.  1540.205 to read essentially the same as 
Sec.  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

[[Page 3501]]

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 Sec.  
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 Sec.  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 Sec.  1572.3 to Sec.  
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 
Sec.  7105 of SAFETEA-LU,

[[Page 3502]]

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 Sec.  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 Sec.  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

[[Page 3503]]

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 
fianc[eacute]s and minor children of fianc[eacute]s 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

[[Page 3504]]

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
------------------------------------------------------------------------
                      Nonimmigrant
       Visa          classifications        Description/information
------------------------------------------------------------------------
C-1/D............  Combined Transit    For alien crewmen serving in good
                    and Crewman Visa.   faith in a capacity required for
                   8 CFR 214.2(c)(D).   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  For nationals of a country with
                    8 CFR               which the United States
                    214.2(e)(1)).       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.

[[Page 3505]]

 
E-2..............  Treaty Investor     An alien employee of a treaty
                    (see 8 CFR          investor, if otherwise
                    214.2(e)(2)).       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       The E-3 is a new visa category
                    Specialty           only for Australians coming to
                    Occupation.         the U.S. to work temporarily in
                                        a specialty occupation.
H-1B.............  Specialty           Persons who will perform services
                    Occupations (see    in a specialty occupation which
                    8 CFR               requires theoretical and
                    214.2(h)(4)).       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          Foreign nationals of countries
                    Agreement (FTA)     which have Free Trade Agreements
                    Professional Visa   with the United States and are
                    (H-1B1).            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,          An alien who within the preceding
                    managerial.         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       An alien who has extraordinary
                    Ability or          ability in the sciences, arts,
                    Achievement.        education, or athletics, which
                                        has been demonstrated by
                                        sustained national or
                                        international achievement.
TN...............  North American      The nonimmigrant NAFTA
                    Free Trade          Professional (TN) visa allows
                    Agreement (NAFTA)   citizens of Canada and Mexico,
                    visas for           as NAFTA professionals, to work
                    Canadians and       in the United States.
                    Mexicans.
M-1..............  Vocational student  This visa category is for a fixed
                                        time needed to complete the
                                        course of study and training.
                                        For purposes of the final rule,
                                        only students who are attending
                                        the U.S. Merchant Marine 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

[[Page 3506]]

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:
    <bullet> Enrollment Segment (referred to as the ``Information 
Collection/Credential Issuance Fee'' in the NPRM),
    <bullet> Full Card Production/Security Threat Assessment (STA) 
Segment (referred to as the ``Threat Assessment/Credential Production 
Fee'' in the NPRM), and
    <bullet> 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 Sec.  1572.5(e), or holds an MMD or License as provided in 
Sec.  1572.19(b). The Reduced TWIC fee is made up of the following 
segments:
    <bullet> Enrollment Segment, and
    <bullet> 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 Sec.  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                         62              72             $10
 Individuals requiring a full STA)..............
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                      50              62              12
 Individuals not requiring a full STA):.........
                                                 ---------------------------------------------------------------
    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.

[[Page 3507]]



                                            Table 4.--5-Year Total TWIC Cost Components--NPRM vs. Final Rule
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                        Standard TWIC     Reduced TWIC         Card
                  Cost components                          NPRM          Final rule    Percent change        fee              fee        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

[[Page 3508]]

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.\16\ 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.
---------------------------------------------------------------------------

    \16\ 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 Sec.  
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 Sec.  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 Sec.  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 
Sec.  1570.9.
    As discussed in section C.4. of this preamble, Sec.  1570.11, 
Compliance, inspection, and enforcement, was proposed in the NPRM as 
Sec.  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.
---------------------------------------------------------------------------

    \17\ 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

[[Page 3509]]

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.\18\ 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.
---------------------------------------------------------------------------

    \18\ 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,

[[Page 3510]]

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 Sec.  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.
---------------------------------------------------------------------------

    \19\ 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.

[[Page 3511]]

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 \20\ 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.
---------------------------------------------------------------------------

    \20\ 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

[[Page 3512]]

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

[[Page 3513]]

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 Sec.  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 Sec.  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:

    ``Sec.  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:

    ``Sec.  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,

[[Page 3514]]

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 Sec.  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 foreign owners of U.S.-
flagged vessels who visit the vessels. They also stated the rule might 
disadvantage U.S. ship management companies that operate U.S.-flagged 
vessels for foreign owners.
    As noted above in the section discussing changes to the Coast Guard 
provisions, we have amended the definition of escorted access to 
clarify that when in an area defined as a restricted area in a vessel 
or facility security plan, escorting will mean a live, 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 NVIC. Outside of restricted areas, 
however, such physical 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.
    Additionally, as discussed above, the reporting and recordkeeping 
requirements proposed in the NPRM have been removed from this final 
rule. We will take the comments on these requirements into 
consideration when we begin a new rulemaking on reader requirements.
    One commenter felt that the definitions of ``escorting'' and 
``unescorted access'' are in conflict, and recommended that the 
definition of ``unescorted access'' be broadened to include either an 
escort or monitoring sufficient to identify whether the escorted 
individual is engaged in activities other than those for which escorted 
access was granted.
    One commenter felt that the definition of escorting was in conflict 
with the requirement in Sec.  105.290(d) to provide additional security 
to monitor holding, waiting, or embarkation areas, because passengers 
that do not hold TWICs may be in those areas. The commenter expressed 
concern that this conflict could result in inconsistent requirements, 
with some government officials requiring each passenger to be 
accompanied one-on-one by security personnel.
    ``Escorting'' means ``ensuring that the escorted individual is 
continuously accompanied while within a secure area in a manner 
sufficient to identify whether the escorted individual is engaged in 
activities other than those for which escorted access was granted.'' As 
stated above, we did not intend for the term escorting to always mean a 
one-to-one side-by-side escort, and we have added to the definition to 
clarify that outside of restricted areas, monitoring will meet the 
definition of escorting. We believe that the requirements in Sec.  
105.290(d) are sufficient to meet the definition of ``escorting'' when 
passengers are in holding, waiting, or embarkation areas so long as the 
monitoring provisions of the facility's approved security plan are in 
place.
    One commenter recommended that the definition be clarified to state 
that the escort must hold a TWIC. This would prevent two individuals 
without TWICs from escorting each other.
    We have included the requirement that all escorts be TWIC-holders 
in the actual access control provisions of parts

[[Page 3515]]

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

[[Page 3516]]

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

[[Page 3517]]

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

[[Page 3518]]

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

[[Page 3519]]

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

[[Page 3520]]

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

[[Page 3521]]

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

[[Page 3522]]

    We recognize that this population of workers is essential to the 
maritime transportation industry and that there would be significant 
impacts to facilities if they were not able to obtain unescorted access 
to carry out their work. As a result, we have amended the final rule to 
allow additional foreigners, holding certain work visas, to apply for a 
TWIC. These provisions are discussed in more detail in the TSA section 
below.
    We do not believe, however, that TWICs should be issued to anyone 
who has been granted a work visa and cleared by CBP. While foreign 
workers--either immigrant or nonimmigrant--may be subject to certain 
screening to obtain a visa or to enter the country. However, these 
individuals do not undergo the comprehensive security threat assessment 
necessary to allow a person unescorted access to a secure facility.
(e). Applicability--Area Maritime Security (AMS) Committee Members
    The NPRM proposed requiring that all AMS Committee members obtain a 
TWIC. Several commenters stated that they agreed with this provision of 
the proposed rule. For example, one commenter noted that if the rule is 
not applied equally to all parties it will have little value. Other 
commenters stated that they did not agree with this provision and felt 
that AMS Committee members should not have to obtain a TWIC. Some of 
these commenters argued that the TWIC is not a tool to clear 
individuals for access to SSI \21\, but is a tool to assist facility 
and vessel owners in implementing access control. The commenters argued 
that since some of the AMS Committee members do not need access to 
secure maritime areas and all of the AMS Committee members have already 
undergone the screening for access to SSI, the AMS Committee members 
should not have to obtain a TWIC. In addition, commenters noted that 
requiring the AMS Committee members to obtain a TWIC would increase the 
costs associated with membership and thus discourage membership.
---------------------------------------------------------------------------

    \21\ ``SSI'' is unclassified information that is subject to 
disclosure limitations under statute and TSA regulations. See 49 
U.S.C. 114(s); 49 CFR part 1520. Under 49 U.S.C. 114(s), the 
Assistant Secretary of TSA may designate categories of information 
as SSI if release of the information would be detrimental to the 
security of transportation. SSI may only be disclosed to persons 
with a need to know, such as those required to carry out regulatory 
security duties.
---------------------------------------------------------------------------

    After reviewing these comments, we have decided to refine the TWIC 
requirement in regard to AMS Committee members, as explained above in 
the discussion of changes to the Coast Guard provisions of the final 
rule. The final rule allows individuals to serve on an AMS Committee 
after the completion of a name-based terrorist check from TSA. FMSCs 
(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.
(f). Applicability--Owners/Operators
    The proposed rule requested comment on whether owners/operators of 
vessels, facilities, and OCS facilities should be required to obtain a 
TWIC, based on their access to SSI. Some commenters argued that 
requiring those who have already been screened for their access to SSI 
to obtain a TWIC based solely on their access to SSI would be an 
unnecessary waste of money and resources. These commenters noted that 
not all SSI is sensitive enough to require the kind of background check 
that will be a part of TWIC. A few commenters noted that the owner/
operator should determine who in their corporation needs to obtain a 
TWIC and who needs access to SSI. One commenter noted that this 
question pertains to 49 CFR part 1520, which was not defined as being 
within the scope of this rulemaking, although it defines SSI and 
provides standards for access to and control of SSI. Therefore, 
although 46 U.S.C. 70105(b)(2)(E) permits the Secretary to determine 
that individuals with access to SSI must have a TWIC, this issue should 
be the subject of a separate rulemaking addressing the provisions of 49 
CFR part 1520. One commenter argued that owners and operators should be 
subject to the TWIC requirements, since they have access to SSI. 
Another commenter argued that owners and operators should be required 
to obtain a TWIC. They argued that owners' and operators' open access 
to secure areas and SSI by virtue of their position, warrants their 
need for the TWIC. This commenter went on to argue that not requiring 
owners and operators to obtain the TWIC would amount to rank 
discrimination. They sited the Dubai Ports World controversy as further 
evidence of the need for owners/operators to obtain a TWIC.
    The final rule does not include a requirement that all owners/
operators obtain a TWIC. We reviewed all of the comments received and 
agree with the idea that an owner/operator, due to access to SSI access 
and ability to control the company, should probably go through a 
background check. However, our difficulty comes in determining who 
exactly the owner/operator to be checked is. For small or closely-held 
companies, this is an easy answer, and we expect that in the majority 
of these cases, the owner/operator will get a TWIC due to his/her need 
to have unescorted access to the vessel or facility. However, larger, 
multi-national, publicly traded companies pose a much bigger problem. 
It would be impractical for TSA to run background checks and issue 
TWICs to anyone holding stock in a company that may own a facility or 
vessel regulated under MTSA. Additionally, these companies may be 
structured in such a manner that a bank or several large holding 
companies are actually the owners, but they have little to no input on 
the day to day operations at the facility or vessel. We reiterate, 
however, that any individual, including owners and operators, who 
wishes to have unescorted access to secure areas must have a TWIC.
    As such, we have not included the TWIC requirement for owners/
operators in this rule. We will, however, continue to examine the 
issue, and may propose adding this requirement in the future.
(g). Applicability--Federal/State/Local Officials
    The proposed rule states that Federal officials are not required to 
obtain a TWIC, but must have an HSPD-12 compliant identification. 
Several commenters agreed with this provision because to obtain the 
HSPD-12 compliant identification cards, the applicant is subject to the 
same or more rigorous level of threat assessment that will be required 
for the TWIC (e.g., background investigations, fingerprints). Other 
commenters noted technological issues that will need to be resolved if 
Federal officials are allowed to use HSPD-12 compliant credentials in 
place of the TWIC. Several commenters emphasized that it is necessary 
for the TWIC equipment to be able to read the HSPD-12 compliant 
credentials or validate the cards' continued validity. Another 
commenter requested that Sec.  101.514(b) be clarified, so it is clear 
that Federal officials are still subject to the facility's access 
control requirements and presenting their credentials does not grant 
them unescorted access to the facility. In addition, several commenters 
noted that the proposed rule must include a requirement that Federal 
officials obtain an HSPD-12 compliant ID on the same schedule as the 
merchant mariners will be required to obtain TWICs and MMCs.
    The final rule will require Federal, State and local officials, in 
the course of their official duties, to present their current agency 
credentials for visual inspection to gain unescorted access to secure 
areas. We recognize the

[[Page 3523]]

technological difficulties presently facing the evolution of the 
biometric readers. However, in the future, we anticipate a separate 
rulemaking to require an HSPD-12 compliant credential to be read by a 
biometric reader for gaining unescorted access. We must stress that 
Federal, State and local officials will only use their authority to 
gain unescorted access in the course of their official duties. Such 
officials must abide by a facility's or vessel's access control 
requirements unless extenuating circumstances require otherwise.
    Under the proposed rule, compliance would be voluntary for State 
and local officials because the majority of these individuals undergo a 
security threat assessment prior to beginning their job. However, 
several commenters argued that this could be detrimental to maritime 
security and is problematic for several reasons. First, not all State 
and local officials undergo a security threat assessment. Second, it 
would be hard for crew members to determine if the State or local 
official's credential meets TWIC standards. Third, under this provision 
State and local officials would not be subject to the background check 
every five years like other holders of the TWIC. Another commenter 
noted that there have been instances in the past where local and State 
agencies have conducted their background checks independently of their 
employee application process. In addition, another commenter noted that 
the threat of terrorists posing as armed local or State enforcement 
officers is great, so there needs to be a more thorough evaluation of 
these individuals' identity then just showing their ID. Several 
commenters noted that those with the main responsibility for port 
security (e.g., port authority police who fall under the State and 
local system) should be required to get a TWIC, rather than make it 
optional. One commenter specified that all armed law enforcement 
officials should be required to obtain a TWIC.
    One commenter noted that under Sec.  101.514(c) State and local law 
enforcement officials would not have to possess a TWIC to gain 
unescorted access to secure areas. At the same time, Sec.  105.210 
would require facility personnel responsible for security duties to 
maintain a valid TWIC. The commenter said that some ports have a police 
force comprised of certified police officers who are required to obtain 
the exact training as State and local law enforcement personnel. The 
commenter recommended that either Sec.  101.514(c) or Sec.  105.210 be 
rewritten to recognize these port police and remove the requirement for 
them to obtain a TWIC.
    Federal agencies are already required to implement HSPD-12, 
therefore there is no need for either the Coast Guard or TSA to do more 
than require that those credentials be used. We believe State and local 
agencies may issue similar cards as the Federal government completes 
implementing HSPD-12. Therefore, we are not requiring State and local 
officials to obtain TWICs at this time. We may revisit this decision in 
the future. While all State and local officials may not be required to 
undergo a security threat assessment comparable to the TWIC, they will 
continue to utilize their existing authority to board regulated vessels 
and enter regulated facilities as needed for official business and 
should continue to be afforded access in accordance with existing 
approved security plans. However, we encourage local and State 
officials to obtain TWICs to facilitate access to facilities and 
vessels when such access is a regular part of their duties.
    Regarding the status of ``port police'' who receive the same 
training and certification as local or State law enforcement officers 
being exempt from the requirement to obtain a TWIC, we disagree with 
the commenter. These individuals can be exempt only if they are actual 
State or local officials due to their employment status and statutory 
law enforcement authority.
    Other commenters requested clarification of the applicability of 
the requirements of this final rule to emergency first responders other 
than law enforcement, such as firefighters and emergency paramedics. We 
recognize that emergency responders are an important part of any port. 
We have extended the option to obtain a TWIC to them, but the final 
rule has also been changed to state that emergency responders will not 
be required to show a TWIC to gain unescorted access to secure areas 
during emergency situations, such as natural disasters or 
transportation security incidents. We do recommend that they obtain a 
TWIC if they require unescorted access during non-emergency situations.
(h). Applicability--Voluntary compliance
    Two commenters wanted Sec.  101.514(d) clarified regarding 
voluntary implementation of a TWIC program. They stated that the 
definition of a TWIC program is confusing, and asked ``[c]an a 
voluntary TWIC program be used for badging purposes only, but the 
vessel or facility owner must still obtain approval of a security plan 
in order to use the card?'' One commenter wants the agencies to explain 
the opt-in reference from the NPRM, asking why anyone would opt-in when 
it carries a mandatory follow-up.
    One commenter wants the Coast Guard to insert language into the 
rule regarding voluntary application of the security plan as opposed to 
voluntary application of the TWIC program.
    As noted above in the discussion to changes to the Coast Guard 
provisions, this final rule no longer contains provisions allowing for 
voluntary TWIC programs, therefore it is not necessary to respond to 
these comments at this time. 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 re-propose reader 
requirements.
3. Coast Guard Roles
    Several commenters expressed concern that the challenge to 
operators who service multiple ports increases as each COTP is given 
broad authority to establish and enforce different standards.
    We agree that consistency among different COTP zones is important 
and that different COTP interpretations of a final rule, such as TWIC, 
can create a challenge especially for those operators who service 
multiple ports. We also agree that some degree of discretion and 
flexibility is critical to the successful implementation and 
enforcement of all Coast Guard regulations throughout a COTP Area of 
Responsibility. To enhance nationwide consistency of the TWIC 
regulations, the Coast Guard will continue to create and distribute 
robust field guidance for use by all COTPs. In most cases, Coast Guard 
field guidance is available to the public and industry for their own 
use in preparing for inspections and examinations. Should an operator 
feel that different interpretations of a particular regulation by two 
or more COTP are negatively impacting their operation, they are 
welcomed and encouraged to contact the appropriate Coast Guard District 
Commander for resolution.
    A commenter asked who would enforce the escort requirement and the 
other TWIC requirements. The Coast Guard will continue to be the 
primary enforcement authority for all MTSA regulations.
    One commenter expressed concern that the Coast Guard has been 
unable to ascertain and report on the number and types of valid 
merchant mariner licenses or merchant mariner documents in existence at 
any time, and that this suggests a limitation in its ability to call

[[Page 3524]]

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

[[Page 3525]]

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

[[Page 3526]]

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

[[Page 3527]]

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

[[Page 3528]]

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

[[Page 3529]]

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

[[Page 3530]]

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

[[Page 3531]]

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

[[Page 3532]]

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

[[Page 3533]]

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

[[Page 3534]]

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

[[Page 3535]]

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

[[Page 3536]]

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

[[Page 3537]]

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

[[Page 3538]]

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

[[Page 3539]]

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

[[Page 3540]]

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

[[Page 3541]]

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

[[Page 3542]]

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

[[Page 3543]]

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

[[Page 3544]]

none of them are appropriate for action at this time. The second 
suggestion is not necessary, as the correct cross-reference is already 
listed. The first suggestion is not appropriate as the referenced 
Notice was intended as an interim security measure until TWIC could be 
implemented. We expect that, with implementation of this final rule, 
the Coast Guard will be able to announce that it will no longer be 
enforcing the provisions of 33 CFR part 125, as described in the 
referenced Notice. Finally, the third suggestion is not appropriate, as 
there may be times when requiring an escort would delay law enforcement 
officials, which is explicitly not allowed in Sec.  101.515.
(m). Accredited Providers
    One commenter wants DHS to explain the qualifying process a 
contractor must pass in order to be accredited. Since this was not in 
the NPRM, the commenter would like the opportunity to comment on this 
information once it is published.
    The enrollment provider must adhere to all applicable laws, such as 
the Privacy Act of 1974 (5 U.S.C. 552a) and the Federal Information 
Security Management Act (44 U.S.C. 3541 et seq., Title III of the E-
Government Act of 2002, Pub. L. 107-347) to protect the personal 
information that is collected and stored in the TSA System. In 
addition, all TWIC contractor employees who will have access to DHS 
sensitive information must have favorably adjudicated background 
investigations commensurate with the sensitivity level of the position 
held. The contractor must also maintain an IT Security Program where 
DHS data is stored or processed on contractor-owned information 
systems.
(n). Preamble Items Not Inserted Into the Rule
    Three commenters complained that there were many requirements/
issues mentioned in the preamble that were not incorporated in the 
rule. However, no specific examples were given. In light of this fact, 
we are unable to respond to this comment.
(o). Additional Uses of the TWIC
    Two commenters would like to know if the TWIC card can be used for 
other commercial purposes not related to security. Specifically, one 
commenter would like to know if the TWIC card could be used as a 
payroll spreadsheet.
    TWIC is designed to be used a tool for securing access control; 
however it is possible that it might be used for other purposes as 
well. The rule does not prevent alternate uses of the credential, as 
long as they do not interfere with the applications and information 
related to the standards in this rule.
(p). Accepted Cargo in Light of TWIC
    One commenter assessed their business practices as a result of the 
implementation of TWIC and decided they would no longer move CDCs. They 
also said they would be forced to abandon their VSPs. The commenter is 
worried that other companies may do the same and not move these types 
of commodities. This would greatly hinder our economy and is not the 
intended effect of TWIC.
    TSA and the Coast Guard have removed the card reader requirements 
from this final rule to reduce the potential burden on small businesses 
until such time as we can review additional technology and complete 
additional evaluation of the costs and benefits of reader requirements. 
Further details of the economic impacts of this final rule, including 
the costs imposed and the benefits gained, are identified in the 
accompanying Final Assessment.
(q). Interim Rules vs. Final Rules
    One commenter wants the Coast Guard to address whether or not this 
rule will be published as a final rule as it incorporates, modifies, or 
updates regulations from the past that have never been published as a 
final rule.
    This comment relates to interim final rules that the Coast Guard 
previously issued affecting STCW, licensing, and MMD regulations. The 
TWIC and MMC projects are not intended to serve as the final rules for 
those projects. At the completion of both TWIC and MMC, the Coast Guard 
intends to publish additional final rules addressing the comments 
received on the aforementioned interim rules, and make any necessary 
changes.
(r). NVIC
    One commenter extended an offer to work with the Coast Guard in the 
development of an NVIC.
    We appreciate the offer. We anticipate issuing a NVIC very soon. We 
also anticipate contacting many of our industry partners and engaging 
in as much industry consultation as possible prior to issuing a second 
NPRM proposing reader requirements.

C. TSA Provisions

1. Technology Concerns
    TSA received a substantial number of comments on technology issues, 
almost all of which expressed concern about the feasibility and 
appropriateness of the proposal for reading the TWIC cards and 
verifying information. Commenters asserted that the TSA Prototype did 
not test many parts of the proposed system, including the readers and 
communications with a central database. Some raised questions about a 
central database. They questioned whether the systems will be 
compatible with existing systems and stated that if not, the costs of 
replacement will be high. Commenters stated that TSA must test the 
proposed system before requiring its use to ensure that it will work in 
the marine environment and that backup systems will function as well. 
They assert that TSA does not appear to have addressed issues related 
to system failures and power outages. In terms of interconnectivity, 
they stated that the system has to be shown capable of processing 
700,000 TWIC instantaneously. Commenters also noted that the system 
does not appear to have been tested with passenger vessels.
    As stated in the previous discussion on Coast Guard's provisions, 
the final rule will not require the owner/operator implementation of 
access control infrastructure, including readers. A notice of proposed 
rulemaking will follow this final rule that will address the use of 
access control readers for the TWIC program. Also, we must note that 
the TWIC program will not require continual interface with a `central 
database' as implied in the comments.
    The implementation of the TWIC program is different from Prototype 
in that TSA will not be involved with the port facility infrastructures 
and other ``systems'' referenced in these comments. Prototype created a 
testing environment for the credential that included Physical Access 
Control System (PACS) readers. The testing environment for Prototype 
included various environments and transportation modes, including 
marine locations.
    Commenters also questioned TSA's assumption that the cards have a 
5-year life cycle; the South Carolina State Port Authority said its 
experience indicated that cards do not last more than a year, which if 
true, would increase costs.
    TSA believes the 5-year longevity of the TWIC is reasonable. There 
is very little data to permit a comparison of the credential referenced 
by the South Carolina State Port Authority to the durability of the 
TWIC. TSA will monitor card failures as the program is implemented and 
make changes to the credentialing system as needed.
    Many commenters questioned the appropriateness of the FIPS 201-1 
standard referenced in the NPRM and contact technology. They noted that 
it was developed for granting access to federal facilities and computer 
systems, not for granting access to ports and

[[Page 3545]]

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

[[Page 3546]]

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

[[Page 3547]]

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

[[Page 3548]]

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

[[Page 3549]]

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

[[Page 3550]]

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

[[Page 3551]]

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

[[Page 3552]]

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

[[Page 3553]]

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

[[Page 3554]]

    Other commenters opposed expansion of the use of TWIC, citing 
burdens to industry, difficulty in translating to other transportation 
industries, and potential undermining of effective programs already in 
place. One commenter specifically opposed expansion of the TWIC 
program, noting that implementation problems and redundant regulatory 
requirements would significantly impact the propane industry. Some 
commenters noted that the TWIC program would create a competitive 
disadvantage for companies that chose to ship products via vessel 
versus companies with the same products that ship via air or ground. 
One commenter noted that current law requires a longer look-back frame 
for airport workers than the TWIC mandates, which would require a 
change in the law should TWIC be expanded to airport workers.
    While TWIC will not supplant all other credentialing or background 
check requirements, we are working toward reducing the redundancy in 
background checks to the extent practicable. For instance, the threat 
assessment requirements for commercial drivers who hold an HME under 49 
CFR part 1572 were originally designed to comply with MTSA and to be 
identical to the requirements for a TWIC. Under this rule, drivers who 
have completed TSA's security threat assessment for an HME are not be 
required to undergo a new threat assessment for TWIC until their HME 
threat assessment expires. These drivers will be required to provide a 
biometric for use on the TWIC and pay for enrollment services, 
credential costs, and appropriate program support costs. Similarly, 
individuals who have a FAST card issued by CBP will not be required to 
undergo another security threat assessment. See 49 CFR 1572.5(e). In 
addition, Canadian and Mexican drivers who haul hazardous materials and 
who are required to have a background check similar to that required 
for U.S. drivers may obtain a TWIC in order to meet that requirement. 
See 49 CFR 1572.201.
    In the future TSA may conduct additional rulemaking to incorporate 
TWIC requirements into other modes of transportation.

D. Comments Related to Economic Issues

    In order to evaluate the impact of the proposed rule, TSA and the 
Coast Guard published a Regulatory Impact Assessment (RIA) in May 2006 
in support of the TWIC NPRM. The RIA was posted to the public docket 
and we received public comments that addressed many aspects of the 
assessment.
    The majority of commenters discussed what they believe to be 
deficiencies or inaccuracies in our assessment. Several commenters, 
including individuals, businesses, government entities, and maritime 
trade associations, questioned some of the analytical assumptions we 
used to generate the cost estimates for the NPRM. In some instances, we 
agreed with comments, and used the information contained in them to 
refine the estimates for the RIA for the final rule. In other cases, we 
did not concur with comments on the RIA, and therefore did not use the 
assertions or claims in these comments to modify the assessment 
completed for the final rule. All comments on the original RIA were 
considered as part of this rulemaking effort, and have been summarized 
and responded to below.
1. Whether the Benefits of the Rule Justify the Costs
    Although we received many comments to the public docket that 
supported the security goals of the rule, many individuals and 
businesses cited the potentially large economic impact of the rule and 
stated that the costs of the rulemaking action far outweigh the 
benefits. Individuals and firms from various segments of the maritime 
transportation industry, including the passenger vessel industry, the 
offshore marine service industry, the inland towing industry, and 
others, echoed this sentiment.
    Many affected entities, especially operators on the inland 
waterways and small businesses, advanced a similar line of reasoning, 
arguing that there is not enough of a security risk to their operations 
to justify the measures we proposed.
    We understand that the compliance costs of the rule represent a 
significant investment in security for many individuals and businesses. 
We do not dispute that the final rule may in fact impose considerable 
costs on many affected entities, including small businesses. As part of 
the economic analysis required by E.O. 12866, we have made every 
attempt to include all known costs in the RIA.
    We also firmly believe, however, that the benefit of increased 
security to the U.S. maritime sector warrants the costs of the rule. 
The vessels, facilities, and OCS facilities affected by this rule 
represent some of the most important maritime and transportation 
infrastructure in the United States. Any vessel, facility or OCS 
facility that is regulated under 33 CFR subchapter H presents a risk of 
being a target of a transportation security incident, regardless of 
size and location, as determined by the interim final rule published by 
the Coast Guard in 2003 (July 1, 2003, 68 FR 39243).
    In addition to claiming that the costs of the rule do not justify 
the benefits, some commenters stated that it is difficult to identify 
any solid benefits of the proposed rule. Some commenters alleged that 
the benefits outlined in the NPRM and the RIA were too vague. In 
particular, many, including the Office of Advocacy of the U.S. Small 
Business Administration (SBA Office of Advocacy or Advocacy) felt that 
the claim made by TSA and Coast Guard that the rule would streamline 
commerce was not well supported in the RIA, especially in light of the 
potentially high cost of the rule.
    The primary benefit of the final rule is increased security to 
vessels, facilities, and OCS facilities covered under 33 CFR subchapter 
H. Under the final rule, individuals with unescorted access to secure 
areas of affected maritime establishments must undergo a security 
threat assessment and obtain a TWIC--a secure, biometric identification 
credential--that vessel and facility owners/operators will use to make 
access control decisions. The Coast Guard will conduct random spot 
checks of individuals' credentials.
    The security threat assessments included in the rule will increase 
security at vessels and facilities by identifying individuals with 
dangerous criminal histories and potential ties to terrorism. And the 
secure, biometric credentials that will be issued under the final rule 
will allow owners/operators and the Coast Guard to verify that 
individuals with unescorted access to secure areas have in fact 
obtained a security threat assessment. Furthermore, even without card 
readers, TWIC provides greater reliability than existing systems 
because it presents a uniform appearance with embedded features on the 
face of the credential that make it difficult to forge or alter. We 
believe these benefits, in addition to the other security benefits 
described elsewhere, more than justify the costs of this rule.
    In response to many comments received, we have revised the benefits 
section of the RIA for the final rule. Originally, the RIA for the NPRM 
stated that the proposal would enhance the flow of commerce by 
streamlining the number of credentials and access control procedures at 
U.S. seaports, eliminating the need for several port credentialing 
offices and systems, and creating an interoperable credential 
recognizable across the maritime

[[Page 3555]]

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

[[Page 3556]]

included estimated air fares, hotel expenses, and per diem allowances.
    We partially agree with these comments. Given the uncertainty about 
the specific locations of enrollment centers and where affected 
individuals work and live, it was extremely difficult to estimate the 
amount of time it would take affected individuals to travel to and from 
TWIC enrollment centers. Furthermore, without information of this 
nature, we could not determine many costs associated with air or land 
travel (i.e., air fares, cost of driving a privately owned vehicle, per 
diem allowances, etc.). For this reason, we excluded these costs from 
the RIA published with the NPRM, and conducted a different analysis to 
estimate costs.
    To calculate the opportunity cost estimate included in the RIA for 
the NPRM, we assumed it would take an individual, on average, one and 
one half hours to complete enrollment. In attempting to calculate this 
time estimate, we divided the total time necessary to enroll into three 
components: (1) Travel time; (2) enrollment time; and (3) wait time.
    To forecast total travel time, we used an estimate from the 
Department of Transportation on the average commute time for 
individuals traveling to work in privately owned vehicles, the primary 
means of transportation for commuters in the United States. Although 
clearly not a perfect measure of travel time to a TWIC enrollment 
center (due to lack of information outlined above), this estimate was 
22.49 minutes for a one-way trip. In our total time estimate, we 
multiplied this number by a factor of two in order to account for 
travel both to and from an enrollment center.
    In order to account for the time needed for workers to enroll at 
the TWIC enrollment centers, we used data collected by TSA during the 
TWIC Phase III Prototype on the average amount of time per enrollment. 
This time estimate was 10.35 minutes.
    Finally, we added 30 minutes to the time estimates described above 
to provide for possible wait time at the enrollment center and other 
incidental events. These estimates, collectively, gave us an 
approximate total time estimate of 90 minutes, which we in turn used to 
calculate the opportunity costs of this requirement. We used this time 
estimate to calculate the opportunity cost of credential issuance, too.
    We acknowledge that this time estimate may have led us to 
understate the opportunity costs of this provision. For example, 
individuals living in remote areas may have to travel long distances in 
order to enroll in the program. (TSA and the Coast Guard note, however, 
that there may be other individuals who live and work near enrollment 
centers and may complete the process in less than 90 minutes.)
    Although we acknowledge that our calculation of opportunity costs 
in the NPRM may have underestimated the burden to some employees and 
employers, we have found it difficult to generate a more credible point 
estimate for this cost element. Some individual commenters provided us 
with anecdotal data on the amount of time it would take them to travel 
to TWIC enrollment centers, with estimates ranging from several hours 
to multiple days.
    However, given the fact that the final enrollment center locations 
were not published before the end of the comment period, we do not know 
how these individuals calculated their estimates. Furthermore, we 
believe that many of the comments submitted on this matter came from 
individuals who reside the furthest from major seaports and cities. 
Most enrollment centers are likely to be located in major seaport 
areas, where the majority of the affected population is likely to 
reside. In fact, TSA and the Coast Guard revised the original list of 
seaport communities slated to have an enrollment center after receiving 
helpful comments from various segments of the maritime industry.
    In response to these comments and all of the uncertainty 
surrounding this time estimate, we decided to develop a range for our 
cost estimate for the final rule. After reading the many comments on 
this matter and reviewing our previous assumptions, we concluded that 
this methodology provided the best way for us to address industry 
concerns without severely over-or understating the cost of the 
provision.
    To develop the range for this cost estimate, we used the time 
estimate of one and a half hours included in the NPRM as the lower 
bound and a time estimate of eight hours as our upper bound. We based 
the upper bound time estimate on comments received from individuals in 
the maritime sector. As a primary estimate, we used four hours, or half 
a work day. We believe this time estimate allowed us to calculate a 
more accurate estimate of the opportunity costs to individuals and 
industry. More discussion of this range can be found in the RIA 
accompanying this final rule.
(e). Cost of Lost Labor Due to Wait Time
    Many commenters expressed concern that the amount of time to 
process a TWIC application would impede their ability to hire new 
employees. The NPRM preamble stated that facility and vessel owners/
operators must notify workers of their responsibility to enroll and 
that generally, owners/operators should give individuals 60-days notice 
to begin the process. Many commenters objected to this timeframe, 
referring to it as a ``60-day waiting period.'' One commenter urged TSA 
to dedicate additional resources to ensure the system has the capacity 
to handle the processing load. Other commenters believed that 
completing the threat assessment in less than 30 days is optimistic.
    These commenters also asserted that their operations would suffer 
as a result of this ``60-day waiting period,'' and that this cost was 
excluded from RIA. Still others asserted that the ``waiting period'' 
would encourage vessel owners/operators to operate in violation of the 
rule or force them to operate with insufficient crew, putting both 
employers and employees in danger.
    Moreover, several commenters, including the SBA Office of Advocacy, 
discussed how the ``60-day waiting period'' for a new employee to 
receive a TWIC puts them at a particular disadvantage for attracting 
seasonal labor. Enterprises operating passenger vessels were 
particularly concerned about this ``waiting period,'' as they asserted 
it would make it difficult to hire employees during the summer months, 
which tend to be the busiest for them.
    TSA and the Coast Guard recognize that having employees wait to 
obtain a TWIC before they can start work is burdensome for some 
businesses. We understand that businesses in the maritime sector, 
including large seaport terminal operators, depend heavily on temporary 
or ``casual'' workforces that are hired with little notice. 
Furthermore, TSA and the Coast Guard are sensitive to the needs of 
employers who primarily utilize seasonal labor to staff their 
facilities and vessels.
    It is important to note, however, that TSA and the TWIC program do 
not have a ``waiting period,'' mandatory or otherwise. Rather, TSA must 
adjudicate the security threat assessment of each applicant following 
enrollment and each case necessarily entails processing time. As a 
general rule, security threat assessments and issuance of a TWIC should 
take no longer than 30 days. In fact, in TSA's experience completing 
threat assessments for commercial drivers with hazardous materials 
endorsements, threat assessments are typically completed in less than 
10 days. However, processing time increases for an applicant with a 
criminal history or other disqualifying

[[Page 3557]]

information, and is further lengthened if the applicant initiates an 
appeal or waiver.
    Nevertheless, to address this concern we have included in the final 
rule a provision that should allow employees to begin work before they 
receive a TWIC. First, newly hired individuals employed by affected 
firms can work in secure areas, including restricted areas, as long as 
they are escorted by an individual with a TWIC. The escort policy was 
proposed in the NPRM and remains in the final rule. This provision 
should allow many firms to make minimal adjustments to their current 
hiring practices, and allow many new hires to start work immediately.
    The final rule also creates ``employee access areas,'' allowing 
passenger vessel and ferry owners/operators more flexibility in 
implementing the requirements of the rule. 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 to 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. We believe that this new provision should reduce the 
regulatory burden on many small passenger vessels, especially those 
that primarily utilize and rely on seasonal labor. In fact, we believe 
this new policy will exclude the vast majority of seasonal employees 
from even needing a TWIC.
    The final rule also includes a new provision that will allow a 
direct hire new employee to receive limited access for 30 consecutive 
days to secure areas, including restricted areas, of a vessel or 
facility provided that the new employee passes a TSA name-based check. 
If TSA does not act upon a TWIC application within those 30 days, the 
cognizant Coast Guard COTP may further extend a new hire's access to 
secure areas for another 30 days. This new policy, which TSA and the 
Coast Guard developed as a result of comments on the NPRM, is intended 
to give owners/operators the flexibility to quickly grant new employees 
who do not yet hold a TWIC access to secure areas. In order to ensure 
ample security for vessels and facilities, though, there are certain 
requirements that owners/operators and TWIC applicants must meet under 
the new provision. These requirements are described elsewhere in this 
document and in the regulatory text.
    By clarifying commenters' misconceptions regarding the ``waiting 
period,'' and including the new policies described above, we believe 
the final rule allays several concerns expressed by firms and 
individuals in the maritime sector. For this reason, we did not include 
additional cost estimates to account for lost labor attributable to the 
``waiting period'' for a TWIC.
(f). Appeals and Waivers
    One industry association expressed concern about the cost estimate 
TSA and Coast Guard included in the RIA for the NPRM to account for 
applicants to file appeals or waivers with TSA. In arguing that the 
cost estimate was understated, this association stated that the 
proposed rule only includes the time preparing correspondence, but a 
more accurate assessment would include lost wages while the application 
is being reconsidered.
    Although an individual may not receive unescorted access to secure 
areas while awaiting the determination of an appeal or waiver request, 
there is nothing in the final rule that would prohibit such an 
individual from working in a secure area while under the supervision of 
a credentialed escort. For this reason, we did not include a cost 
estimate for lost wages while considering this requirement. TSA and the 
Coast Guard did, however, include cost estimates for employers to 
provide employees and visitors with escorted access in the RIA.
(g). Cost To Provide Real Estate to Enrollment Providers
    A commenter stated that TSA and Coast Guard assume that port 
facilities will provide space and utilities for enrollment centers, but 
that the RIA does not account for the direct and opportunity costs for 
these facilities.
    The NPRM did not propose, and the final rule does not require, 
maritime facilities to supply enrollment providers with space to 
conduct operations. We therefore did not include this cost in the RIA.
(h). Escorting Costs
    Several commenters stated that TSA and the Coast Guard 
underestimated the cost of complying with the escorting requirements 
that were proposed in the NRPM. Commenters felt that the escorting 
requirement would be too burdensome in terms of manpower--several 
stated that they would need to hire additional personnel--and 
additional operating costs. Many commenters stated that TSA and the 
Coast Guard did not take into consideration temporary workforces 
utilized by many maritime facilities and vessels, which would require 
escorts when developing this provision. Furthermore, 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 secure area. Some of these commenters provided examples of situations 
where the requirement would be too burdensome. For example, one port 
authority stated that it typically has over 100 temporary workers on 
site that would require escorts.
    We agree with these comments, in part, in regard to the statement 
that the cost estimates for affected entities to comply with this 
provision of the rule may have been understated in the RIA. However, we 
also believe that many affected firms and individuals have 
misconceptions about what the provision requires of vessels, 
facilities, and OCS facilities.
    As proposed in the NPRM, the escorting requirement is a performance 
standard rather than a strict definition. After analyzing many 
comments, we believe some affected individuals and firms may have 
misinterpreted our intent with respect to this requirement. Therefore, 
we recognize that some guidance is needed. As discussed elsewhere in 
this final rule, 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 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. The Coast Guard will 
provide additional guidance on what these specifics might be in a NVIC. 
Within non-restricted secure areas, however, such physical escorting is 
not required, as long as the method of surveillance or monitoring is 
sufficient to allow for a quick response should an individual ``under 
escort'' be observed 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.
    With this understanding of the requirement in mind, we estimated in 
the NPRM that maritime facilities would need 240 additional labor hours 
on an annual basis in order to comply with this requirement. We did not 
report compliance costs for this requirement for vessels or OCS 
facilities and in retrospect, we believe this was an oversight.
    In attempting to estimate compliance costs for the NPRM and the 
final rule, we found that the uncertainty surrounding how affected 
entities would implement this requirement made it difficult for us to 
develop accurate compliance cost estimates. Further, the final rule 
contains several provisions aimed at providing affected entities with 
regulatory flexibility,

[[Page 3558]]

which increases the level of uncertainty in our analysis.
    For example, facilities may now submit amendments to their security 
plans in order to redefine their secure areas to those portions of 
their facility involved in maritime transportation or at risk of a 
transportation security incident. By decreasing the size of their 
secure areas, firms could limit the number of individuals who need a 
TWIC, and also decrease their escorting compliance costs.
    Also, the final rule creates ``employee access areas'' that, as 
described above, are defined spaces within the access control areas of 
ferries or passenger vessels that are open to employees but not to 
passengers. These areas are, by definition, not secure areas and do not 
require a TWIC for unescorted access. The areas may not include any 
areas defined as restricted areas in the vessel security plan. This 
provision, we believe, could provide flexibility to vessels that would 
otherwise incur high costs to provide employees with escorts.
    The final rule also allows owners/operators to provide new 
employees with limited access to secure areas for 30 consecutive 
calendar days (and may be extended an additional 30 days at the 
discretion of the cognizant Coast Guard COTP). Although this provision, 
in an effort to balance security with commerce, contains certain 
restrictions, we believe it also may help to limit escorting costs 
associated with physical accompaniment within restricted areas.
    Finally, the provision for passenger access areas, which we 
originally proposed in the NPRM for passenger vessels, remains in the 
final rule and provides flexibility for owners/operators offering 
marine services to passengers. MTSA requires that no one be given 
unescorted access to secure areas unless they carry a TWIC. To ensure 
that passenger vessels do not have to require passengers to obtain 
TWICs or escort passengers at all times while on the vessel, the rule 
creates the ``passenger access area,'' allowing vessel owners/operators 
to carve out areas within the secure areas aboard their vessels where 
passengers are free to move about unescorted. This should also reduce 
escorting costs.
    We believe that the provisions listed above should give owners/
operators flexibility to follow the requirements of the rule, including 
the escorting requirements, without causing undue economic harm. In 
particular, we believe the rule now allows for regulatory flexibility 
when it comes to ensuring that facilities and vessels can continue to 
utilize temporary workforces without incurring high compliance costs.
    Even though the rule now provides flexibility for owners/operators 
with respect to the escorting requirement, we have decided to increase 
our initial compliance cost estimates for this provision. We concluded 
that our initial estimates, in light of the helpful comments we 
received during the public comment period for the NPRM, most likely 
understated the cost of complying with this provision. The new estimate 
for the final rule will include compliance costs for vessels and OCS 
facilities, which we excluded in the NPRM. We have also concluded that 
a range of compliance cost estimates for this requirement would be more 
appropriate than a single point estimate, given the several ways in 
which owners/operators can now minimize their risk of incurring high 
escorting costs. The adjusted cost estimates are described in more 
detail in the RIA.
(i). Costs for Redundant Credentials
    One employer stated that it already paid fees for employees to 
obtain port identification credentials. In addition to the fees, the 
employer commented that it incurred costs while employees took time off 
from work to obtain the credentials. This commenter asserted that 
employees will continue to be issued their respective port 
identification credentials. For example, employees will have to 
register with all the ports they frequent and pay local administrative 
costs to be placed on additional port or terminal rosters. This 
commenter implied that the cost of this redundant process was not 
accounted for in the RIA.
    We realize that the cost of compliance from port to port will vary 
and that there may be local requirements for personnel to obtain 
identification credentials other than the TWIC. Private firms are free 
to create their own credentialing systems and it is beyond the 
authority of TSA or the Coast Guard to preclude a private company from 
issuing its own identification card.
    However, the TWIC is a unique credential in so far that it provides 
owners/operators with a means to confidently assess the risk posed by 
an individual seeking unescorted access to a secure area of a vessel or 
facility. The distinctive security threat assessment completed by TSA 
on each TWIC applicant is not replicated by other public sector (e.g., 
port authorities) or private sector credential providers. Accordingly, 
we do not believe that the TWIC is a redundant credential. In the RIA 
for the final rule we have accounted for all costs associated with 
producing and issuing the TWIC. Additionally, we do not agree that all 
currently existing port credentials will continue to be required once 
TWICs are issued and being utilized. We believe that some port 
authorities and other providers of identifications will eliminate 
separate credentialing requirements and rely instead upon the TWIC and 
the security threat assessment done by TSA.
(j). Costs to Shipbuilders
    An association of shipbuilders asserted that the NPRM represents a 
redundant regulatory burden for shipyards. The association noted that 
many shipyards already comply with DOD security plan regulations, and 
that these standards, in many instances, provide greater security than 
the provisions proposed in the NPRM. In its comment to the public 
docket, the association suggested that such shipyards should be exempt 
from the requirements of the rule.
    Along with other individual shipbuilding companies, the association 
also expressed concern with several of the assumptions used in the cost 
estimates for the NPRM. In particular, the association articulated its 
concern about the population estimate--it stated that a conservative 
estimate for the number of affected individuals employed at the six 
shipyards that are members of this particular organization, which 
include vendors, shipyard employees, and contractors, would exceed 
200,000.
    In addition, this organization averred that the estimates for most 
direct and indirect costs of the rule were severely understated. Many 
of these costs would be pushed onto U.S. taxpayers in the form of 
higher costs for ships purchased by the U.S. government, including the 
Coast Guard.
    TSA and the Coast Guard are aware that many shipyards must comply 
with Department of Defense security regulations that govern 
identification credentials, facility security plans, and other 
provisions intended to augment U.S. maritime security. However, we do 
not believe that this rule will affect all shipyards; therefore, we 
disagree that we have significantly underestimated the shipyard 
population.
    If a shipyard falls within the applicability of the MTSA 
regulations and is required to submit a facility security plan under 46 
U.S.C. 70105, then any individual requiring unescorted access to a 
secure area is required to have a TWIC. We note, however, that 
shipyards are specifically exempt from 33 CFR part 105 applicability 
(see 33 CFR 105.110(c)), and would only fall under the facility

[[Page 3559]]

security regulations if the shipyard is subject to a separate 
applicability requirement, such as being regulated under 33 CFR part 
154, the oil/hazmat in bulk requirements.
    For the reasons stated above, we do not believe that all shipyards 
will fall under the requirements of the final rule, and therefore 
disagree that the number of shipyard employees that would need to 
obtain a TWIC would exceed 200,000. In our population estimate, we 
calculated that 55,000 individuals working in this industry would 
initially be affected by the rule, and we continue to believe this is 
an accurate estimate. Moreover, outside of our shipyard population 
estimate, we included estimates for contractors/others and site 
management/administration, two population segments that most likely 
have some presence in U.S. shipyards.
    With respect to understated or omitted cost estimates, TSA and the 
Coast Guard have made a number of changes to the final rule that should 
allay some of the concerns expressed by the shipbuilding industry and 
other shipbuilders. In the RIA for the final rule, we have also 
adjusted some assumptions and cost estimates to reflect comments 
received from various sectors of the maritime industry. We have 
discussed these changes elsewhere in this section and in the RIA. As 
for increased costs to the U.S. government, we did not have enough 
information to make a judgment on this assertion.
(k). Rule Will Exacerbate Industry Labor Shortages
    Many commenters mentioned that the labor force in the maritime 
industry is strained, and that the requirements of the final rule, 
including the security threat assessment standards and user fees, will 
only intensify the problems associated with a tight labor market. Many 
firms, concerned about the fee requirements and the security threat 
assessment standards, believed the rule will give many prospective 
employees a disincentive to work in the maritime industry. Several 
commenters also noted that existing employees may not apply for a TWIC 
due to the security threat assessment.
    TSA and the Coast Guard understand that many segments of the 
maritime transportation sector are experiencing labor shortages. We 
also believe, however, that the lack of capable employees in many areas 
of the maritime industry is a function of factors outside the control 
of TSA or the Coast Guard.
    Nevertheless, the final rule may have an impact on some labor 
markets. TSA and the Coast Guard concur that some individuals--due to 
the user fees, security threat assessment standards, or other factors--
may no longer seek employment at businesses regulated by 33 CFR 
subchapter H. Short of speculating on this effect, however, we have no 
way of quantifying the impact to labor markets. In our research, we 
found no data or information that would have allowed us to measure the 
potential effects on the labor market of the rule, and commenters did 
not provide specific data with respect to this issue.
    To the extent possible, though, we have drafted the final rule so 
that it would not adversely affect the supply of labor in the maritime 
transportation sector. We needed to balance this effort, of course, 
with the primary security objectives of the rule. The following 
amendments to the final rule, we believe, will help ease the effect of 
the regulation on the labor supply:
    <bullet> Expanding the group of non-U.S. citizens who meet the 
immigration standards to include foreign nationals who are students at 
the U.S. Merchant Marine Academy or comparable State school; commercial 
drivers licensed in Canada or Mexico transporting hazardous materials 
into and within the U.S.; citizens of Canada or Mexico who are in the 
United States to conduct business under a NAFTA visa; and a variety of 
professionals and specialists who work in the U.S. maritime industry on 
restricted visas;
    <bullet> Enlarging the response time for applicants to appeal an 
adverse determination, correct an open criminal disposition, or apply 
for a waiver from 30 or 45 days to 60 days;
    <bullet> Expanding the group of applicants eligible to apply for a 
waiver after being disqualified because of mental incapacity;
    <bullet> Including a provision for passenger access areas, as 
proposed in the NPRM;
    <bullet> Adding a provision for employee access areas on passenger 
vessels and ferries;
    <bullet> Allowing facilities to submit amendments to their security 
plans in order to redefine their secure areas; and
    <bullet> Allowing new employees who have applied for a TWIC to 
receive limited access to secure areas for 30 consecutive calendar days 
(which may be extended an additional 30 days by the cognizant Coast 
Guard COTP if TSA has not acted upon the TWIC application in the 
initial 30-day period).
    TSA and the Coast Guard have concluded that these provisions both 
achieve greater security in the maritime sector and mitigate potential 
adverse impacts to affected labor markets.
(l). Rule Will Increase Congestion and Delays at Maritime Facilities
    Some commenters stated that the rule would increase delays and 
congestion at port terminal access points across the country, thereby 
increasing logistics and shipping costs. One association representing 
large domestic and international carriers, as well as stevedores on the 
West Coast, stated that it was concerned about cargo backups, 
congestion fines, and late starts that may result from faulty access 
control system hardware or software that may not withstand the rigors 
of the marine environment. These costs, the association noted, were 
excluded from the RIA for the NPRM.
    We agree with these commenters that costs associated with 
congestion, delay, and late starts were not included in the RIA for the 
NPRM. TSA and the Coast Guard understand that anything that impedes the 
efficient delivery of waterborne cargo may impose a cost on affected 
entities and the U.S. economy. At the time of publication of the NPRM, 
we did not have any data that would have allowed us to estimate the 
proposed rule's impact on the logistics of waterborne and inland cargo 
movement.
    As stated above, the final rule will not require vessels, 
facilities, and OCS facilities to use the TWIC in concert with 
biometric smart card readers at access points. The rule instead 
mandates that all persons seeking unescorted access to secure areas 
must present their TWIC for inspection before being granted unescorted 
access.
    Individuals seeking unescorted access to vessels, facilities, and 
OCS facilities are currently required to show a form of identification 
as stipulated by 33 CFR subchapter H. Since the final rule requirement 
simply replaces the current acceptable identification with a TWIC, the 
rule should not cause any significant delays at facilities or other 
locations in the maritime transportation sector. Random checks of 
credentials conducted by the Coast Guard are not expected to cause 
delays. Furthermore, this change to the proposed rule should not 
require facilities to establish covered pull-over lanes for trucks 
seeking to enter their secure areas, as suggested by some commenters. 
For these reasons, we have excluded these costs from the RIA for the 
final rule.
(m). Decreased Competitiveness of Regulated Firms
    Some firms that deal in international markets stated that they 
would be at a unique disadvantage under the rule while attempting to 
compete with

[[Page 3560]]

foreign businesses. This theme was presented by international ferries 
in the Pacific Northwest and repeated by offshore supply vessels 
operating in the Gulf of Mexico.
    Firms that deal solely domestically also commented that the rule 
would hamper their efforts to compete in markets occupied by businesses 
not regulated by 33 CFR Subchapter H. Both groups of commenters 
asserted that TSA and the Coast Guard failed to account for this 
decrease in competitiveness and corresponding costs in the RIA.
    In some markets, the cost of compliance with the final rule may 
raise some firms' operating expenses and therefore impede their ability 
to successfully compete with foreign or domestic competitors not 
subject to the rule. We believe, as previously stated, that the costs 
are justified by the increased level of security provided by rule. 
Without data or other information about this potential effect, we could 
not quantitatively measure it.
    However, we also believe that the final rule includes provisions, 
especially for passenger vessels and ferries, which should allay 
commenters' concerns about compliance costs and competitiveness. As 
stated above, new provisions for passenger access areas, employee 
access areas, and new employees may decrease compliance costs. Also, 
for certain facilities, the ability to redefine secure areas may 
decrease the costs of complying with the rule.
    International ferries stated that they are suffering from 
regulatory exhaustion and cannot pass regulatory compliance costs onto 
their customers.
    As stated above, we understand that this rule may impose 
significant impacts on ferry operators. We have attempted to estimate 
these impacts to the best of our ability. The final rule contains new 
provisions that should provide passenger vessels, including ferries, 
with some flexibility in complying with the rule. This regulatory 
flexibility may also decrease compliance costs for affected firms.
    The provisions for employee and passenger access areas, as 
described above, were designed to help passenger vessels, including 
ferries. Also, the provision that allows new employees to receive 
limited access to secure areas for 30 consecutive days should also 
decrease concerns about adverse impacts on firms that use seasonal 
employees.
    Commenters from the passenger vessel industry stated that costs 
would decrease their competitiveness because they are competing against 
non-marine companies that would not incur regulatory costs. This 
industry also noted its reliance on seasonal hires may put it at a 
unique disadvantage when trying to attract labor.
    TSA and the Coast Guard recognize that firms in the passenger 
vessel industry will incur costs under the final rule that some of 
their competitors may not incur, and that this may decrease their 
competitiveness. To the best of our ability, we have attempted to 
accurately estimate compliance costs to all affected entities. However, 
lack of data on unique markets and firms has made it impossible for us 
to predict any effects on competitiveness.
    We also realize that this final rule presents unique challenges for 
industries that rely predominately on seasonal workers. As discussed in 
this section, TSA and Coast Guard have included provisions in the final 
rule to give these industries flexibility in complying with the rule. 
For example, the final rule allows ferries and passenger vessels to 
designate employee and passenger access areas. An employee access area 
is a defined space within the access control area of a ferry or 
passenger vessel that is open only to employees whose employment is 
solely related to passenger service and/or entertainment. It is not a 
secure area and does not require a TWIC for unescorted access. 
Passenger access areas were created to ensure that passenger vessels do 
not have to require passengers to obtain TWICs or escort passengers at 
all times while on the vessel.
    Furthermore, affected entities will now be allowed to give new 
employees limited access to secure areas for 30 consecutive days, 
provided the employees have applied for a TWIC and meet the provision 
outlined in more detail in the regulatory text. This may be extended an 
additional 30 days by the cognizant Coast Guard COTP if TSA does not 
act upon the individual's TWIC application within the original 30 days. 
We believe these provisions will help employers that utilize seasonal 
employees.
(n). Increased Prices for Consumer and Producer Goods and Service
    Some commenters asserted that the rule would increase the price of 
goods moved by firms in the maritime transportation sector, and that 
this cost was excluded from the RIA.
    Although we think this effect is highly unlikely given the amount 
of competition in the transportation marketplace, we agree that it 
could happen in some markets because transportation costs can affect 
wholesale and retail prices. However, many other factors, such as 
consumer demand, also affect prices. Commenters did not provide 
detailed data on specific goods and markets. Due to lack of data on 
individual markets, we did not attempt to quantify this effect in the 
RIA for the final rule.
    Another commenter stated that the costs of the rule will extend to 
security personnel and other contractors, who will pass this cost on to 
their customers, and that this cost was excluded from the RIA.
    As stated above, we realize that the cost of compliance may be 
passed on to customers in some markets. However, prices for goods and 
services are determined by myriad factors, including factors other than 
firms' operating costs.
    Regulated vessels, facilities and OCS facilities operate in a 
number of markets and we could not determine which firms would be able 
to pass compliance costs on to customers. We therefore did not attempt 
to quantify this potential effect in the RIA.
(o). Additional Recruiting Costs
    Many employers commented that the rule would increase their hiring 
costs and that this burden was excluded from the RIA. For example, some 
firms noted that they would need to pay application fees for 
prospective employees and that they might have to offer more incentives 
to attract new staff members.
    TSA and Coast Guard agree that employers in markets where the 
supply of labor is very tight may incur some additional hiring costs. 
For example, some employers may find that they will have to pay the 
TWIC user fees for new employees. In other industries, however, this 
may not be true. Due to this uncertainty, we did not quantify this 
potential burden to employers in the RIA.
(p). Decreased Productivity
    Some commenters asserted that the rule would decrease employee and 
employer productivity and that this cost was not included in the cost 
estimates in the RIA. Specifically, one commenter stated that the rule 
would impose a negative, one time productivity shock on the maritime 
industry while firms and individuals adjust to new access control 
procedures and other requirements.
    Although we concur that some firms could suffer decreased 
productivity under the rule, we encountered difficulty when trying to 
gauge this potential effect of the rule on affected vessels, facilities 
and OCS facilities. Even though some commenters claimed productivity 
would suffer as a result of the rule, we did not receive any 
quantitative estimates of this effect;

[[Page 3561]]

therefore, we did not attempt to quantify this impact in the RIA for 
the final rule.
    Moreover, we believe that industry commenters were most concerned 
about the effect on productivity that would result from profound 
changes to many current physical access control systems (i.e., smart 
card readers) that would have been necessary under the requirements of 
the NPRM. Because this final rule does not require smart card readers, 
this concern should be mitigated to some extent.
2. Economic Impact of Secure Area Definition
    The SBA Office of Advocacy, as well as several other commenters 
noted that TWIC may be a costly rule for the maritime industry to 
absorb. In particular, many facilities noted that the costs of the rule 
are largely driven by the secure area definition. Some facilities were 
confused about this definition and requested more guidance.
    As stated above, we understand that there is some confusion about 
the definition of a secure area. A secure area is now defined in the 
final rule as the area onboard a vessel or at a facility or OCS 
facility over which the owner/operator has implemented security 
measures for access control in accordance with a Coast Guard approved 
security plan. It does not include passenger access areas, employee 
access areas, or public access areas, as those terms are defined in 
Sec. Sec.  104.106, 104.107, and 105.106, respectively, of 33 CFR 
subchapter H. Facilities subject to part 105 of this subchapter may, 
with approval of the Coast Guard, designate 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. 
We believe the final rule now provides a clear definition of secure 
area and that it affords facilities with some flexibility that may 
ultimately decrease compliance costs.
3. Economic Impact of TWIC User Fees
(a). Fees Are Too High and Will Adversely Impact Employees in the 
Maritime Industry
    Many commenters asserted that the user fees proposed in the NPRM 
would negatively impact already financially strapped individuals in the 
maritime workforce. Employers in particular were concerned about 
individuals' ability to pay the fees, and the effect this could have on 
the labor force.
    We understand that the fees associated with the credential 
represent a significant investment in security for many individuals 
and/or businesses. Furthermore, the opportunity cost for individuals to 
travel to and from enrollment centers also represents a cost to 
industry and individuals.
    The fees associated with obtaining a TWIC represent the cost to TSA 
of providing all services--including enrollment, security threat 
assessments, issuance, and the TSA system--related to the credential. 
TSA cannot meet its statutory mandate without delivering these 
services, and it cannot deliver these services without collecting user 
fees. By law, TSA is responsible for collecting user fees to cover the 
costs of all TWIC program operations. Section 520 of the 2004 DHS 
Appropriations Act requires TSA to collect reasonable fees for 
providing credentialing and background investigations in the field of 
transportation.
    During the course of the rulemaking, we contemplated giving a 
discount on certain fees to employees working at small businesses and 
other subsets of the population. After careful analysis, we determined 
that this would not be feasible. First, TSA's fee authority found in 6 
U.S.C. 469 does not authorize TSA to adjust a fee based on the income 
of the applicant. Second, it would be difficult for TSA and the Coast 
Guard to credibly distinguish individuals working in different segments 
of the industry.
    Where possible, we have made provisions in the rule to ensure that 
individuals do not pay for redundant criminal history records checks. 
Furthermore, TSA and the Coast Guard have made every effort to ensure 
that the fees only cover the cost to TSA of delivering program 
services. In an effort to make certain that the level of user fees 
collected by TSA does not exceed the total costs of the program, TSA 
and the Coast Guard, pursuant to the Chief Financial Officers Act of 
1990 (31 U.S.C. 902(a)(8)) will review fees at least every two years.
    In addition to taking these steps, the Coast Guard is proposing to 
combine the number of credentials that mariners are required to carry 
under Title 46 of the CFR, and to remove the requirement for mariners 
to travel to a Regional Examination Center (REC). This would reduce the 
financial burden to mariners as they would only be required to pay one 
application fee of $45. Mariners would no longer be required to travel 
to one of 17 RECs unless they need to actually sit for an exam. This 
would bring significant savings to this population, as many mariners 
currently have to travel long distances to attain their seafaring 
credentials.
(b). Responsibility for Credential User Fees and Compliance Costs of 
the Rule
    A number of commenters stated that the Federal government should 
pay for some portion of the program. In their comments, many firms and 
individuals noted that the goal of increased security in the United 
States is a common one, shared broadly by individuals in all parts of 
the country, and that the cost of providing such security should be 
borne by all U.S. taxpayers.
    As stated above, the law states that TSA must collect user fees in 
order to fund all program operations. The Federal government has a 
statutory obligation, therefore, to recover program expenses through 
fees.
    Commenters stated that employers, not applicants, would bear the 
cost of TWIC user fees. Many industry trade associations and 
individuals businesses asserted that many employees, especially those 
with lower incomes, would rather work in other industries than pay the 
user fees. The burden of covering such fees, therefore, would fall on 
employers.
    TSA and the Coast Guard agree that some employers may pay the TWIC 
user fees for their employees, although this is not a requirement of 
the rule. Unfortunately, we have no way of knowing which companies will 
have to bear the cost of obtaining a TWIC and which companies will 
require their employees to absorb the cost. Commenters did not provide 
specific data to substantiate the claim that employees would seek work 
in other industries rather than pay the fee to obtain a TWIC. 
Therefore, we did not attempt to estimate this distributional impact in 
the RIA for the final rule, although we did account for the total cost 
of this provision.
4. Comments on Estimated Population
(a). Analysis Omitted Populations
    Several commenters stated that TSA and the Coast Guard omitted 
several maritime populations in the RIA for the NPRM. Specifically, a 
trade association representing U.S. port authorities stated that many 
port operations rely on temporary workforces, and that many casual 
laborers are given visitor or temporary passes to allow access. This 
commenter claimed the size of this casual labor force can be 
significant. It is concerned about their omission in the rule and 
questions how much consideration TSA and the Coast Guard gave to these 
workers. The trade association also noted that while these workers are 
usually supervised to a certain degree, the proposed rule would

[[Page 3562]]

likely still require them to obtain a TWIC or a credentialed escort.
    As previously stated in this section, TSA and the Coast Guard 
believe that the final rule provides enough flexibility to allow 
business owners to accommodate temporary workers without incurring high 
costs. Certain facilities operating in the maritime environment will be 
allowed to submit amendments to their security plans in order to 
redefine their secure areas. We also believe, as the trade association 
alluded to in its comment, that many of the individuals in the casual 
workforce usually receive some sort of oversight during their time of 
employment in the maritime industry. Although circumstances are unique 
to each facility and vessel, TSA and Coast Guard believe that many 
operations, while employing ``casuals'' may already meet the escort 
requirement of the final rule while employing casuals. This would 
preclude these individuals from having to obtain a TWIC. For this 
reason, we did not adjust the population estimate included in the RIA 
to account for additional temporary workers.
    The Edison Electric Institute, the American Public Power 
Association, and the National Rural Electric Cooperation Association 
commented that TSA does not appear to have included the 30,000 utility 
employees who could be subject to the rule. Furthermore, they stated 
that utilities generally are not in the business of transportation and 
therefore should not be subject to the rule.
    TSA and the Coast Guard recognize that certain facilities regulated 
by 33 CFR part 105 may have only a small nexus to transportation. For 
this reason, we have included in the final rule a provision to allow 
facilities to submit amendments to their security plans that would 
allow them to adjust the definitions of their secure areas. This would 
ensure robust security within sensitive transportation areas. For this 
reason, we did not adjust our population estimate to include employees 
in the utilities industry.
    The requirement that all individuals needing unescorted access to 
secure areas of 33 CFR subchapter H-regulated facilities would bring 
into the nexus of transportation workers a plethora of individuals that 
some commenters believe TSA has not properly accounted for in its 
estimate of 750,000 affected individuals.
    One particular trade association representing the fertilizer 
industry anticipates delivery personnel, such as Federal Express, 
United Parcel Service, and the United States Postal Service employees; 
general contractors, such as plumbers, vehicle mechanics, builders; 
chemical distributors; college interns; office cleaning crews; food 
service personnel; utility repairmen and utility/pipeline personnel 
with right-of-way on facility property to require intermittent access 
to secure areas of regulated facilities. Because the amount of 
personnel needing access to a facility is well beyond the nexus of 
transportation that TSA and the Coast Guard account for in the NPRM, 
this trade association believes the population estimate needs to be re-
examined and proposed again for review as an NPRM.
    We fully understand that a number of individuals working in a wide 
array of occupations would be affected by the final rule. While 
conducting research to formulate the estimated population, TSA and the 
Coast Guard examined a number of industries that provide services to 
affected vessels, facilities, and OCS facilities, such as general 
contractors, delivery personnel and the like.
    In the population estimate included in the RIA for the NPRM, TSA 
and the Coast Guard estimated that the rule would impact 70,000 
contractors and other personnel in the maritime industry. We believe 
that the occupations listed above by the commenter are included in this 
estimate; therefore, we did not change the population for the final 
rule in response to this comment.
    One commenter asserted that the rule has an overly expansive scope 
that is unrelated to the actual risk posed by certain personnel, such 
as grain elevator personnel, truck drivers and rail carriers delivering 
inbound grain.
    TSA and the Coast Guard firmly believe that all vessels, 
facilities, and OCS facilities covered by 33 CFR subchapter H are 
critical maritime assets that are at some risk of being involved in a 
transportation security incident. Therefore, we believe all personnel 
with unescorted access to secure areas of these regulated entities 
should receive a security threat assessment and a TWIC.
    An association representing passenger vessels stated that there are 
probably tens of thousands of vessel wait staff, entertainers, 
supporters, suppliers, caterers and other persons, who are not 
identified in the population estimate in the RIA.
    We agree with this particular association that some of the 
entertainers, caterers, and wait staff employed in the passenger vessel 
industry were most likely not captured in our population estimate in 
the RIA for the NPRM. This is because we intended for the ``passenger 
access area'' provision, included in the NPRM, to cover these 
individuals. Upon reviewing the comments, we determined that many of 
these individuals would need access to additional areas of the vessel 
that are not open to passengers and therefore not covered by the 
``passenger access provision.'' However, rather than add them in to the 
population estimate, we added the ``employee access area'' provision, 
which should preclude entertainers and wait staff, as well as other 
personnel with only a tangential connection to transportation, from 
having to obtain a TWIC.
    The categories of personnel as ``contractor/other'' and ``vessel 
operation/port support,'' which are included in the population 
estimate, likely include the other personnel mentioned by this 
association, namely the supporters and suppliers. We believe the total 
population excluded from our initial estimate is far less than the tens 
of thousands asserted by the passenger vessel industry association.
    One commenter stated that the 204,835 mariners that TSA and the 
Coast Guard estimated would be impacted by the rule in the RIA accounts 
for credentialed mariners, but omits non-credentialed mariners.
    We agree that the approximately 205,000 mariners estimated in the 
RIA only accounts for credentialed mariners. However, we believe the 
other mariners that are not required to carry a mariner credential 
under the existing Coast Guard regulations were included in other areas 
of our population estimate. For example, in our research on the 
affected population, we accounted for workers in such categories as 
vessel operations and port support; barge operators; and offshore 
liquid bulk. Although we did not specifically calculate the number of 
mariners without existing credentials, we nevertheless believe they 
were captured in our population estimate. The comments that we received 
from industry contained no specific information on this matter, and 
therefore, we did not adjust our population estimate in response to 
this comment.
    The Owner Operator Independent Drivers Association (OOIDA) asserted 
that between 500,000 and 1,000,000 truckers access the ports, regularly 
or occasionally. The association asserted that this population was 
underestimated in the RIA.
    TSA and the Coast Guard value the concern expressed by the trucking 
trade association about our estimate for the number of commercial truck 
drivers accessing facilities regulated by 33 CFR subchapter H. While 
estimating the number of port truckers in the NPRM,

[[Page 3563]]

TSA and Coast Guard contacted many subject matter experts and analyzed 
numerous sources of public data. We found no consensus on the number of 
truckers regularly accessing facilities affected by this rule. We have, 
however, adjusted our initial NPRM estimate of affected commercial 
truck drivers.
    After publication of the NPRM, it came to our attention that we may 
have excluded some foreign commercial truck drivers who operate out of 
Canada and Mexico. In order to correct this oversight, we have 
increased our total population estimate by 20,000--to 770,000 from 
750,000 to account for this segment of the trucking industry.
    Although this upward adjustment to our population estimate may 
address some of the concerns raised above, TSA and the Coast Guard can 
find no data to support the claim made by OOIDA that there are between 
500,000 and 1,000,000 commercial truck drivers accessing regulated 
facilities on a regular basis. We note that the facilities covered by 
this rule represent a fraction of the total maritime facilities 
operating in the United States, and that the organization provided no 
specific information about the source of its data used to support its 
assertion. For these reasons, we have not modified our population 
estimate beyond the final estimate of 770,000.
(b). Estimates of Employee Turnover for Population Are Too Low
    Several commenters stated that the assumed employee turnover rate 
of 12 percent in the RIA for the NPRM was too low. The extreme employee 
turnover rates in various segments of the maritime industry, they 
noted, would make total compliance costs significantly higher than 
those estimated by TSA and the Coast Guard. Table 5 displays estimates 
of turnover rates provided by various commenters.

             Table 5.--Turnover Rate Estimates by Commenters
------------------------------------------------------------------------
                                                               Turnover
                          Industry                             estimate
                                                              (percent)
------------------------------------------------------------------------
Passenger Vessel...........................................           70
                                                                     100
                                                                     200
                                                                  50-150
                                                                      60
                                                                     100
                                                                   50-75
                                                                  70-100
                                                                    >150
                                                                     100
                                                                     200
Inland Waterways...........................................          >50
                                                                   30-40
                                                                  20-135
    Casino.................................................        20-40
                                                                      28
    Trucking...............................................          130
------------------------------------------------------------------------

    TSA and the Coast Guard understand that many firms operating in the 
maritime industry experience a high level of employee turnover on an 
annual basis. We concur with many commenters that this is especially 
true for trucking firms and enterprises that rely heavily on seasonal 
labor (particularly passenger vessel operators conducting business on 
the inland waterways).
    In attempting to estimate the number of enrollments over the 10-
year period of analysis, we focused on utilizing an industry-level 
estimate for employee turnover, not a firm-level estimate. Namely, we 
were interested in the rate at which individuals enter and exit the 
affected industry or industries--not the rate at which they enter and 
exit unique firms or establishments. This is because an individual who 
moves from one covered employer in the maritime industry to another 
covered employer would not need a new TWIC, although such a labor shift 
would be counted in firm-level turnover estimates. Had we used a firm-
level estimate, such as those provided above, we would have 
overestimated the number of enrollments; we would have, in essence, 
double counted. We did not receive any comments on industry-level 
employee turnover rates and, therefore, have not adjusted our estimate 
of 12 percent in the RIA.
5. Other Economic Comments
    One commenter stated that there is a concern about TSA's ability to 
process applications under the TWIC rulemaking. The commenter was 
concerned that the number of applications may be far more than TSA and 
Coast Guard estimates, that system overloads may cause long delays 
before tight deadlines, and that the possibility for administrative 
mistakes is enormous.
    TSA and the Coast Guard will do everything within their authority 
to ensure that there are sufficient resources to process all 
applications submitted to TSA under this rule. Furthermore, procedural 
safeguards, including new redress processes, will minimize the number 
of administrative oversights.
    Comments submitted by the SBA Office of Advocacy stated that the 
rule may deter community residents from participating in local security 
committees, such as the AMS Committees maintained under 33 CFR 
subchapter H. In many instances, the SBA Office of Advocacy noted, 
local community residents often provide the greatest protection against 
security threats because they are most familiar with operations on the 
ground, and can easily detect anomalies that would indicate a security 
threat. By deterring these individuals from participating on AMS 
Committees, the SBA Office of Advocacy questioned whether the rule 
would do more harm to security than good.
    The purpose of this final rule is certainly not to deter 
individuals from participating in the AMS Committees (other local 
security organizations would not be subject to the final rule). We 
recognize the value of these organizations in securing critical U.S. 
maritime assets, and we agree that, in many instances, local residents 
are often best qualified to identify suspicious activities and threats. 
Nevertheless, we also firmly believe that individuals who are members 
of such organizations should be vetted using security threat 
assessments in order to ensure that they do not pose a security threat 
to vital areas of the U.S. maritime transportation sector.
    In order to counteract this potential deterrent effect, we changed 
the requirements in the final rule to ease the burden on AMS Committee 
members and participants of other local security organizations. The 
final rule states that AMS Committee members must do one of the 
following: Receive a name-based threat assessment from TSA, obtain a 
TWIC, or have passed a comparable security threat assessment, as 
determined by the FMSC (who is also the Captain of the Port).
6. Impacts to International Trade
    Some commenters stated that the rule would have a negative impact 
on international trade, and that this cost was not accounted for in the 
RIA.
    TSA and the Coast Guard understand that some isolated international 
markets may be impacted by the final rule. In light of comments 
received on the public docket, TSA and the Coast Guard acknowledge that 
the rule could have an impact on international trade. By raising the 
operating expenses of some firms that engage in international business, 
the rule could potentially increase the price of goods and services, 
thereby affecting the flow of commercial transactions across 
international

[[Page 3564]]

borders. However, we think this is unlikely given the amount of 
competition in many international markets. Furthermore, the prices of 
goods and services are determined by many factors other than firms' 
operating costs. We have no information or data that would allow us to 
estimate this potential effect, and commenters did not provide any 
specific information with respect to this impact.
7. Comments on the Initial Regulatory Flexibility Analysis
    In order to evaluate potential impacts to small entities, as 
defined by the Regulatory Flexibility Act (RFA) and the SBA Office of 
Advocacy, TSA and the Coast Guard published an Initial Regulatory 
Flexibility Analysis (IRFA) in May 2006 in support of the TWIC in the 
Maritime Sector NPRM. We received several public comments that 
addressed many facets of the IRFA. As part of this final rulemaking 
effort, we have summarized and responded to all substantive comments.
(a). The Rule Imposes a Significant Burden on Small Entities and Does 
Not Meet the Requirements of the Regulatory Flexibility Act
    Many commenters, including Advocacy, claimed that the rule imposes 
a significant burden on small entities as defined by the RFA and that 
the agencies did not complete an accurate analysis of the impacts of 
the rule on small entities. Other commenters said that small entities, 
especially vessels, do not need the level of equipment proposed in the 
rule for security.
    In the IRFA published with the NPRM, TSA and the Coast Guard did 
not make a determination about whether the NPRM would have a 
significant economic impact on a substantial number of small entities, 
and asked for comments on the issue. As demonstrated above, many 
commenters believe the rule would have a significant economic effect on 
many small businesses. In making a determination for this final rule, 
we agree with these comments, and have concluded that the rule will 
have a significant economic impact on a substantial number of small 
entities.
    However, in drafting the final rule we have made significant 
changes that we believe will decrease adverse impacts on small 
businesses. TSA and the Coast Guard do not believe the rule will force 
small entities to leave the various markets in which they conduct 
business. In fact, TSA and the Coast Guard made a number of material 
changes to the original proposal in order to specifically address 
concerns about its impact on small entities.
    First, and perhaps most importantly, small vessels and facilities 
will no longer need to purchase biometric smart card readers or other 
equipment in order to comply with the rule. Instead, the Coast Guard 
will conduct spot checks of credentials with handheld smart card 
readers. We believe this change will significantly reduce the economic 
burden on small entities. (As stated elsewhere in this document, 
however, TSA and the Coast Guard will initiate a future rulemaking that 
would require the use of such equipment. When this happens, we will 
reevaluate all costs estimates and impacts to small entities.)
    Second, TSA and the Coast Guard have eliminated the recordkeeping 
provisions from the final rule. This modification should also reduce 
the burden on small entities.
    Third, we have added to the final rule provisions to accommodate 
newly hired employees at businesses affected by the rule. These 
employees, after having applied for a TWIC, will be allowed limited 
access to secure areas for 30 consecutive days, subject to certain 
restrictions. This 30 day period may be extended an additional 30 days 
by the cognizant Coast Guard COTP if TSA does not act upon the 
individual's TWIC application within the original 30 days.
    Fourth, we have added to the final rule provisions for employee 
access areas on passenger vessels and ferries. These areas are defined 
as spaces within the area over which an owner or operator has 
implemented security measures for access control. Employee access areas 
are open only to employees and not passengers; they are not secure 
areas and therefore do not require a TWIC for unescorted access. As 
stated above, this should further reduce the burden on some small 
businesses, especially passenger vessels reliant upon seasonal 
employment.
    Finally, TSA and the Coast Guard will allow certain facilities to 
submit amendments to their security plans in order to redefine their 
secure areas. We included this provision in the final rule to give 
these facilities the opportunity to more closely align and perhaps 
narrowly focus their secure areas on those areas that are directly 
related to maritime transportation or most at risk of a transportation 
security incident. The provision may result in a smaller secure area, 
which would reduce the number of employees and visitors who may need a 
TWIC for unescorted access.
    Many of these new provisions are designed to help small entities 
comply with the rule in a cost efficient manner, without sacrificing 
the security goals of the rule.
    The International Association of Drilling Contractors (IADC) 
asserted that there are many unfounded assumptions regarding the 
economic impact of the NPRM involving the number of persons that need a 
TWIC, the rate of personnel turnover, the costs associated with 
procurement and installation of required equipment, and the recurring 
costs of maintaining the TWIC and associated equipment. The IADC went 
on to state that many qualifying small entities provide valuable 
services. Other commenters voiced similar concerns.
    TSA and the Coast Guard acknowledge that there are a number of 
assumptions in the RIA that we published with the NPRM. Where 
appropriate, we have modified some of the assumptions in the RIA for 
the final rule based on input from industry.
    Many of the cost estimates and assumptions that generated the most 
comments (e.g., costs associated with technology requirements and 
recordkeeping costs) are no longer germane to this rulemaking because 
of modifications to the final rule. For example, TSA and the Coast 
Guard will no longer require affected entities to purchase biometric 
smart card readers or keep records of individuals who access secure 
areas. While these provisions may be required in a future rulemaking, 
we will revisit the associated cost estimates at that time. As for the 
assumed turnover rate, we have addressed that above.
    TSA and the Coast Guard disagree with IADC's suggestion that this 
rulemaking fails to meet the requirements of the RFA. To the best of 
our ability, we identified the firms affected by the rule, the economic 
impact to those firms, and the regulatory alternatives contemplated 
during the rulemaking process. Furthermore, we believe that the final 
rule includes significant alternatives to the original proposal that 
should decrease the impact to small entities. We therefore believe that 
this final rule meets both the letter and the spirit of the RFA.
    The SBA Office of Advocacy, expressing concerns raised by several 
small businesses, asserted that the IRFA for the NPRM failed to include 
many small businesses in the maritime towing (e.g., tugboats, towboats, 
and barges) and passenger vessel industries (e.g., ferries; 
sightseeing, excursion, and dinner boats; gaming vessels; whale 
watching boats; and eco-tour vessels). The SBA Office of Advocacy also 
stated that the economic analysis and IRFA failed to include other 
affected sectors. In its comment, the SBA Office of

[[Page 3565]]

Advocacy noted that a charter bus operator picking up cruise ship 
passengers at a port terminal would need a TWIC (or a credentialed 
escort) if he or she accessed a secure area. Advocacy recommended that 
TSA and the Coast Guard re-assess whether the economic analysis and 
IRFA encompass all regulated sectors.
    In light of the comments above, we reviewed the industries 
identified in the IRFA as being affected by the rule. Many of the small 
businesses in the maritime towing and passenger vessel industries fall 
under the North American Industrial Classification System (NAICS) codes 
488330 Navigational Services to Shipping; 336611 Ship Building & 
Repairing; 532411 Commercial Air, Rail, & Water Transportation 
Equipment Rental and Leasing; 483114 Coastal and Great Lakes Passenger 
Transportation; and, 48721 Scenic and Sightseeing Transportation, 
Water. These industries were included in the IRFA that we published 
along with the NPRM. However, we did not include Gaming Vessels in the 
IRFA and they will most likely be affected by the final rule.
    Based on the comments above, we have included two additional NAICS 
codes in the FRFA--gaming vessels fall under 713290 Other Gambling 
Industries and 713210 Casinos (except Casino Hotels).
    With respect to the charter bus example cited by Advocacy, TSA and 
the Coast Guard recognize that some small businesses outside the 
maritime transportation sector that were not identified in the IRFA may 
be affected by the final rule. The example given by Advocacy in its 
comment is plausible--TSA and the Coast Guard do not dispute that 
charter bus operators may access cruise ship terminals.
    For the most part, however, we do not believe that cruise ship 
terminals and other large facility owners/operators currently allow 
charter bus operators and other independent firms or visitors to freely 
move about secure areas without supervision or monitoring. Many of 
these large facilities where cruise ships dock have reams of valuable 
cargo on their property and consequently have an economic incentive to 
monitor visitors, including bus operators. Therefore, we believe that 
many facilities will choose to use a credentialed escort in many of 
these instances. For these reasons, we believe the FRFA now identifies 
the industries that will be affected by this rulemaking.
    The American Sail Training Association (ASTA) asserted that the 
IRFA and NPRM do not appear to take into account vessels such as the 
tall ships owned by ASTA members because the regulatory analysis 
focuses on the small businesses included within the subchapter H 
vessels, facilities and outer continental shelf facilities. ASTA 
members are not within that category.
    Only vessels, facilities and OCS facilities regulated by 33 CFR 
subchapter H will be required to comply with the requirements of the 
final rule and incur associated costs. For this reason, we did not 
consider impacts to vessels not regulated by 33 CFR subchapter H.
(b). The Rule Fails To Meet the Maritime Transportation Security Act
    In support of concerns raised by small business representatives, 
the SBA Office of Advocacy commented that the limited maritime TWIC 
being proposed exceeds TSA and Coast Guard's statutory mandate. 
Specifically, Advocacy asserted that MTSA did not require the complex 
and costly design or the potentially expensive smart card readers that 
TSA and the Coast Guard proposed in the NRPM. Advocacy also noted that 
many small businesses felt that there should be a single credential and 
security threat assessment for the entire transportation sector.
    Section 102 of MTSA requires the Secretary of DHS to issue a 
biometric transportation security card to individuals with unescorted 
access to secure areas of vessels, facilities, and OCS facilities. MTSA 
did not specify what type of biometric card the Secretary should issue. 
We believe the TWIC, which can accommodate many kinds of biometrics, 
privacy protections, and security mechanisms, meets the letter and 
spirit of the law.
    Also, as previously stated, this final rule will not require 
vessels, facilities, or OCS facilities to purchase biometric smart card 
readers. TSA and the Coast Guard will address the technology and card 
reader issues in the future. We will address comments relating to these 
issues in the future.
(c). Whether the Rule Meets Previously Stated Goals
    Commenters, including the SBA Office of Advocacy, stated that the 
NPRM fails to meet the objectives of the TWIC concept as originally 
envisioned, that is, a single biometric card and a single background 
check for the entire transportation sector. Commenters argued that 
duplicative credentials and clearances that may include separate state 
and local requirements may continue to be required because TWIC is 
limited to the maritime sector. Also, the commenters stated that the 
original intent of the TWIC was to help ease access to secure areas, 
not to require a TWIC to enter them.
    TWIC is a biometric transportation security card, mandated by sec. 
102 of MTSA, which TSA and the Coast Guard are introducing for use in 
secure areas of the maritime transportation sector. As stated in the 
preamble to the NPRM, DHS is currently exploring introducing the TWIC 
into other modes of the transportation sector. In the NPRM, we 
solicited and received comments on this issue.
    With respect to this final rule, the purpose of TWIC is not to 
facilitate access to secure areas of the national transportation 
sector, as some individuals asserted in their comments. While 
attempting to preserve owner/operator's ability to exert control over 
their secure areas, this final rule adds an additional level of 
security to these critical areas of the nation's maritime assets 
through the use of TWIC. The primary objective of TWIC has been, and 
will be, to increase security without unnecessarily compromising the 
flow of goods and services in the economy.
    Comprehensive security threat assessments are a vital part of this 
objective. Some commenters expressed concern that the rule would create 
duplicative threat assessments and credentials. TSA and the Coast Guard 
have made every effort in this final rule to avoid creating 
requirements that would cause individuals to obtain redundant security 
threat assessments. For example, individuals who have recently 
completed a security threat assessment for an HME, the FAST Program, or 
one of the Coast Guard's mariner credentialing programs, will not 
undergo a new TSA security threat assessment as a result of the TWIC 
rule. TSA will also review other government background checks in order 
to determine if they are comparable to those being conducted under the 
authority of this rule. Furthermore, if DHS decides to require TWIC in 
other modes of the transportation sector, we will make every effort to 
avoid duplicative or inconsistent security threat assessment standards.
    As stated above, several commenters asserted that the rule would 
require duplicative credentials for some individuals. For example, one 
commenter suggested that a commercial truck driver who picks up a 
package at an airport and delivers it to a port terminal may have to 
hold two credentials under the provisions of the rule. TSA and Coast 
Guard agree that this scenario is plausible. Some individuals, due to 
different circumstances, may have to carry multiple credentials. 
Unfortunately, we

[[Page 3566]]

cannot guarantee that individuals affected by the rule will have to 
carry only one credential. Neither TSA nor the Coast Guard has the 
legal authority to prevent private companies from issuing their own, 
proprietary identification credentials. However, TSA and the Coast 
Guard believe that many private firms currently issuing their own 
identification credentials may cease to do so after TWIC is introduced, 
because it may result in a cost-effective solution to existing 
credentialing systems.
(d). The Rule's Effect on Current Labor Shortage Affecting Small 
Entities
    Several commenters made general remarks about how the TWIC rule 
will make labor shortage issues worse for small entities. Industry 
associations, small firms, Advocacy, and individuals all opined that 
the user fees proposed in the NPRM; the ``wait time'' to obtain a 
security threat assessment and a credential; and the inconvenience 
associated with traveling to an enrollment center would all negatively 
impact the work force utilized by small entities.
    TSA and the Coast Guard understand that some areas of the maritime 
transportation sector are experiencing labor shortages. As noted 
previously, however, we believe that the shortage of labor in many 
areas of the maritime industry is a function of factors outside the 
control of either TSA or the Coast Guard.
    Nevertheless, the final rule may have an impact on some labor 
markets. TSA and Coast Guard concur that some individuals--due to the 
user fees, security threat assessment policies, or other factors--may 
no longer seek employment at businesses regulated by 33 CFR subchapter 
H as a result of this rule. To the extent possible, though, we have 
drafted the final rule so that it would not adversely affect the 
already limited supply of labor in certain segments of the maritime 
transportation sector. We needed to balance this effort, of course, 
with the primary security objectives of the rule. We believe the 
following amendments to the final rule will help ease the potential 
adverse impacts of the rule on the labor supply while achieving the 
security goals of the rule:
    <bullet> Provisions to accommodate new hires and persons who have 
reported their TWIC as lost, damaged, or stolen.
    <bullet> An allowance for certain facilities to amend their 
Facility Security Plans (FSPs) to redefine their secure areas, and new 
definitions for passenger access areas and employee access areas.
    <bullet> Expanded response time for applicants to appeal an adverse 
determination, correct an open criminal disposition, or apply for a 
waiver from 30 or 45 days to 60 days.
    <bullet> Expanded group of applicants eligible to apply for a 
waiver after being disqualified because of mental incapacity.
    <bullet> Expanded the group of non-U.S. nationals who meet the 
immigration standards to include foreign nationals who are students at 
the U.S. Merchant Marine Academy or comparable State college; 
commercial drivers licensed in Canada or Mexico transporting hazardous 
materials into and within the U.S.; citizens of Canada or Mexico who 
conduct business in the United States under a NAFTA visa; and a variety 
of professionals and specialists who work in the U.S. maritime industry 
on restricted visas.
    <bullet> Provisions for employee access areas on passenger vessels 
and ferries.
    Some commenters specifically mentioned that being forced to pay the 
enrollment costs for their employees will be harmful to them. Laying 
out the same argument as other, larger firms, many small business 
owners who submitted comments to the docket pointed out that they would 
not be able to pass application costs onto college students, low wage 
earners, or other employees that typically work for small businesses.
    We note that this is not a requirement of the rule, but we agree 
that in some markets, owners/operators may pay the TWIC user fees for 
their employees. This may be especially true for employers that operate 
in sectors with tight labor markets. In other industries, however, this 
will probably not be true. For instance, in highly unionized workforces 
where wages are high and benefits are generous, employers will most 
likely not be forced to pay TWIC user fees. Due to this high level of 
uncertainty, we did not quantify this potential burden to employers in 
the RIA.
    Others said that seasonal employees are not able to afford the 
application fees or the cost of traveling to an enrollment center.
    TSA is required by law to recover fees for the costs it incurs to 
provide all program services. Therefore, the agency cannot make any 
concessions with respect to the user fee, even for seasonal employees. 
TSA and the Coast Guard have included some provisions in the final rule 
that may reduce the burden on seasonal employees. These provisions, 
such as employee access areas, are detailed above.
    Another commenter said that the ``waiting period'' for a TWIC is a 
hardship for small entities because they will have additional costs 
involved with interviewing new employees.
    As stated earlier, the final rule contains a provision that will 
allow new employees to have limited access to secure areas for 30 
consecutive days, subject to other restrictions detailed in the 
regulatory text. In addition, this may be extended an additional 30 
days by the cognizant Coast Guard COTP if TSA does not act upon the 
individual's TWIC application within the original 30 days. This 
provision should ease the burden on small entities.
    Some commenters discussed how the burdens employees face in 
obtaining TWICs are harmful to small entities. Some, for example, said 
that small companies are competing with larger companies for workers, 
and larger companies are more competitive because they are more capable 
of absorbing TWIC enrollment costs. Some commenters said that they will 
not be able to fill seasonal and short-term positions due to the TWIC 
requirements. One commenter said that small entities subject to TWIC 
will not be able to compete with other small service entities that are 
not subject to TWIC requirements. Another said that they will not be 
able to compete for labor with other service industries.
    One commenter said that the burdens of TWIC on employees will 
result in further wage increases to retain employees in their industry. 
Others said that the costs and burdens of TWIC will force employers to 
go to other industries, which is a hardship for small entities.
    TSA and the Coast Guard realize that small businesses face unique 
challenges in complying with the final rule. We recognize that the rule 
may impact employees as well as other facets of small entities' 
businesses. During the rulemaking process, we analyzed several 
alternatives that would have lessened the impact to small entities.
    For example, we examined the possibility of exempting the employees 
working for small businesses from the requirements of the final rule. 
Furthermore, we also analyzed the possibility of exempting industries 
with a high proportion of small businesses (e.g., passenger vessel 
industry) from the provisions of the rule. Both alternatives were 
deemed incompatible with the security objective of the rulemaking since 
33 CFR subchapter H specifically applies to vessels, facilities, and 
OCS facilities that have been identified by the Coast Guard as 
presenting a risk for a transportation security incident.

[[Page 3567]]

Moreover, statutory constraints also prohibited us from further 
considering this option.
    TSA and Coast Guard did, however, include a number of new 
provisions to help small businesses comply with the rule. These 
provisions, such as the new hire provision, passenger and employee 
access areas and allowances to certain facilities to redefine secure 
areas, are detailed elsewhere in this section.
    Many commenters, including the SBA Office of Advocacy, expressed 
concern that businesses utilizing seasonal or temporary workers could 
be significantly impacted by the rule. For example, small tour boats 
and sightseeing vessels frequently hire high school and college 
students to work on the boats during the summer. However, because these 
employees could be required to obtain a maritime TWIC before they could 
begin work, the proposed rule could impose significant costs and time 
burdens on these small businesses.
    We realize that seasonal and temporary workers are a vital supply 
of labor for many passenger vessels and other small businesses 
regulated by this final rule. We also understand that the requirement 
to obtain a TWIC may represent a financial burden for some seasonal 
employees, especially high school and college students who may only 
work during the summer months. In writing this rule, we looked at 
several alternatives that would minimize this burden without 
compromising security.
    First, we considered exempting small passenger vessels and other 
regulated entities utilizing seasonal laborers from the requirements of 
the rule. This would clearly eliminate any concerns about labor 
shortages or financial burdens that many small businesses expressed 
during the comment period for the NPRM. We determined after careful 
analysis, however, that this alternative would not meet the security 
objectives that are the rationale for the rule, as passenger vessels 
subject to the security assessment and plan requirements in 33 CFR part 
104 are at high risk for a transportation security incident due to the 
number of people they transport, which makes them an attractive target 
for terrorists. TSA's and the Coast Guard's statutory obligations also 
prevented us from adopting this option.
    Second, we investigated the possibility of allowing owners/
operators to grant individuals who have applied for a TWIC limited 
access to secure areas for 30 days. As stated elsewhere, we have 
included this provision in the final rule, which we hope will reduce 
the regulatory burden for small entities.
    Finally, in another effort to minimize the burden on small vessels, 
we created employee access areas in this final rule. 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. We believe that this new provision should reduce the 
regulatory burden on many small passenger vessels, especially those 
that primarily utilize and rely on seasonal labor.
(e). Costs of the Escorting Requirement
    Another commenter mentioned that the escorting burden is 
particularly difficult for small entities since they usually do not 
have excess crews or manpower to meet these requirements.
    We agree that for some small entities the requirement to provide 
escorts for visitors and others may prove to be a substantial burden. 
TSA and Coast Guard also do not dispute commenters' claims that many 
small entities may not have excess employees to handle this provision. 
We feel, however, that many commenters interpreted the definition of 
escort to require the physical presence of one escort for each 
individual without a TWIC at all times while in a secure area. TSA and 
Coast Guard did not intend this provision to be interpreted in this 
manner.
    Instead, 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 escort. The specifics of each vessel or facility will 
determine the scope of the escort required. Outside of restricted 
areas, however, such physical escorting is not necessary, so long as 
the method of surveillance or monitoring used is adequate to allow for 
a rapid response should an individual ``under escort'' be observed in 
an area where he or she has not been authorized to go or is engaging in 
activities other than those for which access was granted. We believe 
that this interpretation may significantly decrease the burden of this 
provision for small entities.
    Moreover, in the final rule, TSA and the Coast Guard have taken 
steps that may further reduce this burden for small businesses. For 
example, the final rule contains a provision for passenger vessels and 
ferries to establish employee access areas, which may decrease the need 
for certain small entities to supply some employee with escorted access 
to secure areas.
    The final rule also contains a provision that allows certain 
facilities to redefine their secure areas by submitting an amendment to 
their security plans to the Coast Guard. TSA and the Coast Guard 
believe that this new allowance may help some small entities limit the 
burden of providing escorted access to some employees and visitors.
    Although TSA and Coast Guard contemplated easing this requirement 
of the rule for small entities, we ultimately determined that we could 
not do this without comprising security.
    The SBA Office of Advocacy and other commenters noted that it is 
likely that many businesses will seek to avoid the maritime TWIC 
requirements by providing (or requiring) the use of dedicated, 
credentialed escorts as an alternative. Some commenters recommended 
that TSA and the Coast Guard consider the likelihood that this will 
occur and whether it changes the cost projections for the proposed 
rule.
    Although we realize that affected entities may comply with the rule 
in this manner, TSA and the Coast Guard have no information that would 
allow us to calculate the probability of this occurrence, making it 
difficult for us to adjust our cost projections. Credentialed escorts 
are specifically recognized as an acceptable means of complying with 
the final rule. Each business will evaluate the most cost effective way 
to comply with the rule, given its operational situation. TSA and the 
Coast Guard included the escort provision in the rule to potentially 
reduce the economic burden of the rule, provide flexibility, and 
maintain security.
(f). Required Equipment Is Too Expensive for Small Companies
    Many small entities expressed concern about the cost of equipment. 
Several small vessels were concerned about how well equipment would 
work on vessels.
    The final rule will not require vessels, facilities, and OCS 
facilities to purchase and maintain new equipment. TSA and the Coast 
Guard will address this issue in the future and will revisit all cost 
estimates and equipments requirements at that time.

E. Comments Beyond the Scope of the Rule

    We received many comments concerning issues that are outside the 
scope of the NPRM. Many suggested port security grants be used to pay 
for TWICs and TWIC implementation, while others suggested that funding 
for implementation be made available in the federal budget. One 
commenter specifically requested a 90/10 matching of federal grant 
monies be appropriated to offset logistics costs. While these

[[Page 3568]]

comments are outside of the scope of the rule, we would like to note 
that the DHS port security grant program has already been revised to 
include applications for costs associated with implementing TWIC.

IV. Advisory Committee Recommendations and Responses

    We received recommendations from three DHS advisory committees: The 
National Maritime Security Advisory Committee (NMSAC), the Merchant 
Personnel Advisory Committee (MERPAC), and the Towing Safety Advisory 
Committee (TSAC). Each committee reiterated some of the comments that 
have already been addressed, above, in the ``Discussion of comments and 
changes'' section. We have not repeated those concerns or comments in 
this section. Rather, we limit this discussion to those comments or 
recommendations that are not reflected elsewhere in this final rule.

A. National Maritime Security Advisory Committee (NMSAC)

    NMSAC recommended that the final TWIC regulations indicate that if 
an individual who regularly works in a secure area has not obtained a 
TWIC, has been denied a TWIC, or has had his or her TWIC revoked, that 
person cannot have access to secured areas.
    We do not agree with this recommendation, as the TWIC requirement 
only applies to individuals seeking unescorted access to secure areas. 
An individual who does not have his TWIC, either because he has not 
obtained one, been denied one, or had it revoked, could still be 
provided escorted access. Nothing in the final rule, however, requires 
that the owner or operator of a facility or vessel provide escorted 
access.

B. Merchant Personnel Advisory Committee (MERPAC)

    MERPAC recommended that the Coast Guard delay the implementation of 
the MMC, separating the implementation of the MMC from the TWIC 
implementation, until the TWIC program is deemed successful.
    This recommendation is more properly addressed in the Coast Guard's 
Supplemental Notice of Proposed Rulemaking (SNPRM) titled 
``Consolidation of Merchant Mariner Qualification Credentials,'' found 
elsewhere in today's issue of the Federal Register. We note, however, 
that instead of issuing a final rule to implement the MMC, the Coast 
Guard has instead published an SNPRM, thus accepting at least part of 
the recommendation to delay MMC implementation.
    The committee recommended that Coast Guard and TSA find other 
funding sources for the TWIC. They further asked that, if this 
recommendation be rejected, TWIC applicants be required to only pay the 
actual production costs of the cards, not the administrative costs of 
TSA.
    Congress mandated that TSA fund the TWIC program out of user fees 
(see sec. 520 of the 2004 DHS Appropriations Act), thus, we are unable 
to consider this recommendation at this time.
    MERPAC recommended that the next round of Port Security Grants be 
made available to every mariner, transportation worker and owner/
operator to pay for this unfunded mandate. We appreciate this comment; 
however, the Port Security Grant Program is not part of this 
rulemaking.
    MERPAC asked, ``Who will determine how much is the correct amount 
of profit for this contractor to make off of the American Citizens that 
will require this identification?'' They added that this program, from 
information collection to card activation, must be conducted by the 
U.S. government, not contractor. They requested that ``If there is a 
stated percentage of profit that is appropriate, that percentage should 
be included in the rulemaking for comment. When the bi-annual review is 
published, the percentage of profit should again be broken out, 
particularly before any increase in fees is approved.''
    Nothing in MTSA or the other laws and regulations authorizing the 
TWIC program prohibits the United States Government from contracting 
for appropriate commercial services in support of the program. In fact, 
it is the policy of the United States Government to rely on the private 
sector for needed commercial services, where appropriate. TSA is, 
however, committed to reducing the cost of this program to individuals 
required to obtain the card to the extent possible. To that end, TSA is 
developing a competitive solicitation for the services. There has been 
a significant amount of interest on the part of the private sector in 
this solicitation. Among the evaluation criteria is the reasonableness 
of the cost as compared to the government's independent cost estimate. 
In addition, the contracting officer is responsible for ensuring that 
all contractor costs are fair and reasonable. There is no stated 
percentage of profit that is appropriate, and therefore we cannot 
include that percentage in the rulemaking for comment. Instead, we are 
looking at the overall cost to the public and will use private 
innovation and competitive process to obtain the best possible overall 
cost for the public.
    MERPAC recommended that TSA facilitate the payment of any fees via 
the pre-enrollment web site, and that TSA begin the vetting process 
with information submitted at this Web site. They went on to request 
that mariners be able to pay the fees required by credit card or cash, 
and not just money order, check, or wire transfer.
    During the initial rollout of the TWIC program, applicants must pay 
the fee for the credential at the enrollment center, rather than on-
line. We may develop processes in the future to accommodate payment 
during pre-enrollment, but we cannot do so at this point. We will 
accept credit cards, cashiers checks, or money orders. Accepting cash 
or personal checks create opportunities for fraud that we wish to 
avoid.
    The committee questioned some language from the NPRM, asking ``[o]n 
pg 29403, section (e): This section states `After the individual has 
been granted access to the facility, the owner/operator may opt to 
notify the TSA system that access privileges have been granted to this 
worker at that facility.' MERPAC would like an explanation of this 
section, as it seems unnecessary.''
    The cited language refers to the process known as privilege 
granting. Under that process, as proposed in the NPRM, one way for a 
facility or vessel to meet their requirement to validate TWICs (i.e., 
ensure that they have not been invalidated by TSA) was to tell TSA 
those individuals to whom they were granting access. This information 
would be stored in the TSA TWIC database. Then, as cards were 
invalidated for any reason, the database would ``push'' that 
information to those facilities or vessels listed as having granted 
access privileges to that card. The process necessarily involves a 
centralized access control system at the facility or vessel, and as 
such would not work as a solution for everyone.
    MERPAC asked TSA to explain the two year redesign, mentioned on 
page 29429 of the NPRM, by explaining what is involved, and explaining 
why the card holders should pay for said redesign.
    The technology for the credential will be improved to add the 
contactless application and other security features as they become 
available. These improvements are standard items in complex programs, 
and as spread across the affected population over time, have a minimal 
impact on cost.
    MERPAC recommended that the rule require TSA to complete each 
security threat assessment and issue a TWIC within 96 hours from 
enrollment. They

[[Page 3569]]

also recommended that TSA outline the procedures for notification to 
the applicant when a timely processing cannot be accomplished.
    As discussed above, in the section entitled ``Adjudication Time,'' 
it is not feasible to complete a full threat assessment, including the 
collection of all of the information required to do so and issue a 
biometric credential within 96 hours. First, it is important to state 
that the TWIC program does not have a mandatory ``waiting period.'' 
Rather, we must adjudicate the security threat assessment of each 
applicant following enrollment and each case naturally entails 
processing time. During the initial enrollment rollout, owners/
operators must give ample notice to workers so that the threat 
assessment can be completed before the workers are required to present 
a TWIC to gain access to secure areas. Our goal is to process security 
threat assessments and manufacture TWICs within 30 days, and our 
experience with other programs indicates that this is quite possible. 
However, processing time may increase for an applicant with a criminal 
history or other disqualifying information, and when an appeal and/or 
waiver is required.
    The time period needed to complete security threat assessments 
during the TWIC prototype is not a good model from which to make 
comparisons. TSA was not able to complete a CHRC during Prototype, 
because there was not a regulation in place requiring a fingerprint-
based check. Therefore, the time needed to complete the threat 
assessment was much shorter than is typical. However, the Prototype 
provided data on enrollment and card production processing times. We 
will process applications as they are received. After applications are 
received and sent for security threat assessment, individual processing 
times will vary based on the complexity of the adjudication.
    In response to the many comments on adjudication time, TSA is 
amending the information required for enrollment to help expedite the 
adjudication process. Most of the new information is voluntary; 
however, providing it should help TSA complete adjudications more 
quickly. All of the amendments apply to HME and TWIC applicants. First, 
applicants who are U.S. citizens born abroad may provide their passport 
number and CRBA. These documents expedite the adjudication process for 
applicants who are U.S. citizens born abroad. In addition, applicants 
who have previously completed a TSA threat assessment should provide 
the date and program for which it was completed. Applicants should 
state if they hold a federal security clearance, and if so, the date 
and agency for which the clearance was performed.
    A general review of background checks and security threat 
assessments across government and in the private sector will show that 
the processing time for a TWIC or HME is far below the average time to 
complete an assessment. In any event, as described above in the 
discussion of the Coast Guard's provisions, we have included provisions 
in the final rule to provide relief to the owner/operator who needs to 
provide a new hire with unescorted access to secure areas before the 
individual's TWIC has been issued.
    MERPAC recommended that those persons that need access to vessels 
subject to MTSA that provide counsel and religious guidance to 
seafarers should be required to obtain a TWIC, but be exempted from the 
fees.
    We disagree with this recommendation. As already stated, Congress 
has mandated that all costs of the TWIC program be funded through user 
fees. Thus, eliminating the fees for one portion of the affected 
population automatically increases the fee for the remaining 
population. We do, however, recognize the importance of allowing these 
individuals access to the mariners they serve. These individuals may be 
escorted into secure areas if they choose not to obtain TWICs.
    MERPAC requested that TSA describe the process for card renewal.
    Renewal applications will go through the same process as initial 
applications: applicants will need to enroll, provide fingerprints, 
have a new security threat assessment completed, and return to the 
enrollment center to activate their TWIC.
    MERPAC recommended that an additional section be included in the 
rulemaking, addressing the obligations and training requirements that 
should be necessary for the employees and managers of the enrollment 
centers, those employees activating and issuing TWIC cards, and any 
other employees associated with this program.
    We do not agree with this comment. Procedures and standards for the 
contractor providing enrollment services will be part of the contract 
between TSA and the contractor. They do not impose obligations on the 
general public, and as such are not appropriate for inclusion in the 
regulations. We can assure the committee, however, that these topics 
will be covered.
    MERPAC recommended the TWIC application itself be revised stating, 
``Item 10 of [proposed 49 CFR] 1572.17 requires a job description and 
listing of a primary facility where the card holder anticipates using 
the card. This information should be removed from the application, so 
that mariners are not accused again of submitting incomplete 
applications. The purpose of the collection of this information could 
be accomplished by changing the attestation on page 29456, which should 
state that the applicant attests that they have a legitimate need for 
the card, that they understand its uses and obligations. They should 
not be asked to attest that the card `as part of my employment duties' 
as for an applicant, that may not yet be true.''
    The purpose of having the applicant list the job description and 
primary facility, if known, is to ensure that employers whose employees 
do not need TWICs do not send their employees to enrollment centers 
just to get a full background check on them. This information, however, 
is not required if the applicant does not yet have a job description or 
primary facility. As such, a blank entry on the application will not 
prevent it from being processed.
    MERPAC noted that we address the need to have employers and their 
employees notify TSA of a security violation by a person attempting to 
access a facility with a fraudulent or tampered card, and asked that we 
also define what the procedures and penalties are for a violation.
    It is unclear whether the committee is asking about the penalties 
for a failure to notify, or if they are asking about the penalties for 
someone found with a fraudulent or tampered card. In the case of the 
former, the penalty is found in the general penalty provision of 33 CFR 
part 101. In the latter case, the penalties are found in 49 CFR part 
1572.
    MERPAC recommended that foreign riding gangs should be subject to 
the same requirements as U.S. mariners, and that they be subject to all 
the same requirements of U.S. mariners: background checks, drug 
testing, etc.
    If foreign riding gangs are currently required to obtain a U.S. 
MMD, license, COR, or STCW endorsement, they would also be required to 
obtain an MMC. This regulation does not propose to change the 
population of people who must obtain a mariner credential. Foreign 
riding gangs must meet the same requirements for lawful status as any 
other TWIC applicant. Vessels operating in waters outside of the United 
States will not need to have TWIC implemented on board, therefore the 
TWIC provisions will not be applicable to riding gangs if the vessel 
they are working on is operating in non-U.S. waters.

[[Page 3570]]

    MERPAC recommended that foreign truck drivers and foreign 
technicians be specifically addressed in the final rule, providing 
detailed procedures to accommodate their presence in facilities and on 
vessels.
    We disagree. We have made changes to the final rule that, we 
believe, will allow foreign workers who are lawfully present in the 
United States and legitimately working at facilities or on vessels to 
get a TWIC if their work requires them to have unescorted access to 
secure areas. Those foreigners who still cannot get a TWIC will need to 
be escorted, as that term has been clarified elsewhere in this final 
rule.
    MERPAC recommended that all TWIC holders be automatically enrolled 
in the Trusted Travelers Program, and that facial recognition software 
should be considered as a means of providing access with a TWIC.
    To date, there is no domestic ``Trusted Travelers'' program, and 
implementing such a program is outside the scope of this rulemaking. 
The criteria for participants in TSA's ``Registered Traveler'' program 
are still being developed. We will keep this recommendation in mind for 
future consideration. Additionally, neither the NPRM nor this final 
rule prohibit the use of facial recognition software by facilities or 
vessels, so long as the software is able to integrate with all of the 
TWIC requirements found in this final rule.

D. Towing Safety Advisory Committee (TSAC)

    TSAC requested an investigation on the impact TWIC will have on 
new/existing marine employees. The committee expressed concern about 
the costs to commerce, and noted that they believe the costs were 
undervalued and logic was not applied. They requested an economic 
analysis about the impact on commerce.
    All of the issues raised in this request are addressed, in some 
form, in the Final Regulatory Assessment for this rule. This document 
is summarized below, but is also available on the docket at the 
locations listed in the ADDRESSES section above.
    They also requested a formal ``task statement'' so they can work 
with Coast Guard and TSA in the next stage of the rulemaking. We 
appreciate this offer, and will keep it in mind as we begin developing 
our second rulemaking (regarding reader requirements).

V. Rulemaking Analyses and Notices

A. Executive Order 12866 (Regulatory Planning and Review)

    This rule is a ``significant regulatory action'' under section 3(f) 
of Executive Order (E.O.) 12866, Regulatory Planning and Review and 
therefore has been reviewed by the Office of Management and Budget. 
E.O. 12866 requires an assessment of potential costs and benefits under 
section 6(a)(3) of that Order. A Final Assessment is available in both 
the TSA and Coast Guard dockets where indicated under the ``Public 
Participation and Request for Comments'' section of this preamble. A 
summary of the Assessment follows.
Regulatory Impact Assessment Summary
    Changes to Federal regulations must undergo several economic 
analyses. First, Executive Order 12866 (E.O. 12866) directs each 
Federal agency to propose or adopt a regulation only if the agency 
makes a reasoned determination that the benefits of the intended 
regulation justify its costs. Second, the Regulatory Flexibility Act of 
1980 requires agencies to analyze the economic impact of regulatory 
changes on small entities. Third, the Trade Agreements Act (19 U.S.C. 
Sec.  2531-2533) prohibits agencies from setting standards that create 
unnecessary obstacles to the foreign commerce of the United States. 
Fourth, the Unfunded Mandates Reform Act of 1995 (Public Law 104-4) 
requires agencies to prepare a written assessment of the costs, 
benefits and other effects of proposed or final rules that include a 
Federal mandate likely to result in the expenditure by State, local, or 
tribal governments, in the aggregate, or by the private sector, of $100 
million or more annually (adjusted for inflation).
    In conducting these analyses, TSA and the Coast Guard have 
determined that this rule:
    1. Is a ``significant regulatory action'' as defined in E.O. 12866.
    2. Has a significant economic impact on a substantial number of 
small entities. We have provided a Final Regulatory Flexibility 
Analysis, which is available in the Regulatory Impact Assessment that 
is located on both public dockets.
    3. Will not impose significant barriers to international trade.
    4. Does not impose an unfunded mandate on State, local, or tribal 
governments, but does on the private sector as costs exceed the 
inflation adjusted $100 million threshold in at least one year.
    The regulatory impact assessment (RIA) is a joint effort of TSA and 
the Coast Guard. The reader is cautioned that we did not attempt to 
replicate precisely the regulatory language in this summary of the RIA; 
the regulatory text, not the text of the RIA or this summary, is 
legally binding. A copy of the comprehensive RIA can be found on both 
public dockets.
Impact Summary
    Section 102 of MTSA requires the Secretary of the Department of 
Homeland Security to issue a biometric transportation security card to 
individuals with unescorted access to secure areas of vessels and 
facilities. Under this authority, DHS has developed this final rule, 
and this summary provides a synopsis of the costs and benefits of the 
final rule.
Benefits of the Final Rule
    The final rule will increase security at vessels, facilities, and 
OCS facilities regulated by 33 CFR chapter I, subchapter H. It will 
accomplish this by: (1) Reducing the number of high-risk individuals 
with unescorted access to secure areas of vessels, facilities, and OCS 
facilities through the use of robust security threat assessments, and 
(2) improving access control measures in the maritime transportation 
sector by permitting only those with biometric credentials to have 
unescorted access to secure areas of vessels and facilities.
Costs of the Final Rule
    In estimating the economic cost of the final rule, we have made a 
number of adjustments to our original forecast published in the NPRM. 
First, as the final rule includes significant changes to the NPRM, we 
have accounted for those modifications in our estimates. For example, 
the final rule will not require vessel, facility, and OCS facility 
owners/operators to install and maintain smart card readers for access 
control purposes, keep access control records, or submit TWIC addenda 
to security plans. Compliance costs associated with these requirements 
therefore no longer appear in our estimates for the final rule; 
however, some of these costs are still reflected in the regulatory 
alternatives analyzed in the RIA.
    Second, we have modified many of our cost estimates in response to 
comments received from individuals and firms in the maritime industry. 
Several commenters argued that we understated or failed to identify 
several costs associated with complying with the rule. In response to 
these comments, we have adjusted some of our estimates and assumptions. 
For instance, many

[[Page 3571]]

commenters asserted that we underestimated the opportunity cost to 
travel to TWIC enrollment centers. Based on several comments of this 
nature, we adjusted our estimate upward.
    Third, we have better information with respect to many costs 
related to TSA's ability to deliver program services. This improved 
information is reflected in our new estimates.
    After making these types of adjustments to our original estimate, 
we concluded that the 10-year cost of the rule, discounted at 7 
percent, would range from $694.3 million to $3.2 billion. Much of the 
variance in our estimate is attributable to the uncertainty surrounding 
opportunity cost estimates and escorting cost estimates.
    Table 6 displays the 10-year cost estimates for the NPRM and the 
final rule, discounted at 7 percent. The differences between the two 
estimates are also shown, with negative numbers appearing in 
parentheses. Figures showing 10-year cost estimates discounted at 3 
percent and 0 percent are displayed in the comprehensive RIA, which is 
available on the public docket.

                                                        Table 6.--Cost Change, NPRM to Final Rule
                                                          [$ millions, 7 percent discount rate]
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                      NPRM                          Final Rule
               Component               ------------------------------------------------------------------   Difference  (Low-            Remarks
                                           Low      Primary      High       Low      Primary      High            High)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Enrollment Opportunity Costs..........  .........      $71.8  .........      $73.8     $196.7     $393.5             $2-$321.7  Public comments on
                                                                                                                                 original time estimate
                                                                                                                                 and increased
                                                                                                                                 population.
Enrollment Service Costs..............  .........       91.9  .........  .........       94.9  .........                   3.0  Increased population.
Security Threat Assessment Costs......  .........       57.9  .........  .........       57.9  .........                   0.0  Increased population but
                                                                                                                                 reduced technology
                                                                                                                                 costs.
TSA System Costs......................  .........       27.4  .........  .........       44.3  .........                  16.9  Improved internal cost
                                                                                                                                 estimates.
Appeals and Waivers Opportunity Costs.  .........        5.7  .........  .........        5.9  .........                   0.2  Increased population.
Card Production Cost..................  .........       29.5  .........  .........       31.9  .........                   2.4  Improved internal cost
                                                                                                                                 estimates and increased
                                                                                                                                 functionality.
Issuance Opportunity Costs............  .........       89.0  .........      123.4      329.2      658.4            34.4-569.4  Public comments on
                                                                                                                                 original time estimate
                                                                                                                                 and increased
                                                                                                                                 population.
Program Office Support Costs..........  .........       41.0  .........  .........       19.9  .........               (-21.1)  Improved internal cost
                                                                                                                                 estimates.
Compliance Costs, Facilities..........     $299.0      312.1     $325.1       82.2      326.5      644.3        (-216.8)-319.2  Public comments on
                                                                                                                                 original estimates and
                                                                                                                                 changes to proposed
                                                                                                                                 requirements.
Compliance Costs, Vessels.............       63.1       75.8       88.4      157.7      638.8    1,264.4            94.6-1,176  ........................
Compliance Costs, OCS Facilities......        0.6        0.7        0.8        2.4       10.1       20.1              1.8-19.3  ........................
                                       ----------------------------------------------------------------------------------------
    Total.............................     $777.0     $802.8     $828.6     $694.3   $1,756.3   $3,235.4     ($-82.7)-$2,406.8
--------------------------------------------------------------------------------------------------------------------------------------------------------

    As stated above, the primary cost estimates for the final rule 
differ from those estimated for the NPRM. While certain cost 
components, such as the card reader costs, were eliminated from the 
final rule, other adjustments, mainly to the enrollment opportunity 
cost and escorting cost estimates, caused a net increase in the total 
primary estimate. Table 7 displays the differences on an annual basis.

[[Page 3572]]

[GRAPHIC] [TIFF OMITTED] TR25JA07.000

B. Small Entities

    Under the Regulatory Flexibility Act (RFA) (5 U.S.C. 601-612), we 
have considered whether this rule would have a significant economic 
impact on a substantial number of small entities. The term ``small 
entities'' includes small businesses, not-for-profit organizations that 
are independently owned and operated and are not dominant in their 
fields, and governmental jurisdictions with populations of less than 
50,000. Individuals are not considered small entities for the purposes 
of the RFA.
    In support of the NPRM, we conducted an Initial Regulatory 
Flexibility Analysis (IRFA) that did not conclude whether the proposed 
rule would have a significant economic impact on a substantial number 
of small entities. We solicited comments on the matter in order to 
become better informed on how the proposed rule would impact affected 
small entities.
    After reviewing the public comments on the IRFA and the 
modifications to the final rule, we conducted a Final Regulatory 
Flexibility Analysis (FRFA), which is now available in the RIA on both 
public dockets. The public comments we received on the IRFA, which we 
summarized and responded to in the preamble to the final rule, 
addressed a broad array of issues specific to small entities, including 
the high cost of biometric smart card readers and other security 
infrastructure; the potential negative impact to businesses that 
predominantly utilize seasonal workforces; and the potential adverse 
effect on firms that must provide escorts for employees seeking access 
to secure and restricted areas, but do not possess unescorted access 
authority.
    In completing the FRFA, we revised many of our initial cost 
estimates in response to both comments from industry and the changes to 
the rule that those comments produced. We have determined that the 
final rule will have a significant economic impact on a substantial 
number of small entities. In this summary, we provide a brief 
description of why our cost estimates have changed, and examples of how 
we have provided regulatory flexibility for small entities in an 
attempt to mitigate any adverse economic effects of the rule.
    The primary reason for the determination that the rule will have a 
significant economic impact on small entities is that we have 
considerably revised our cost estimates for vessels and facilities to 
provide escorted access to employees and visitors in secure areas. 
During the public comment period, several individuals and firms 
expressed concern that we understated our original estimate for this 
requirement. In response to these comments, we increased our cost 
estimate for vessels and facilities to comply with this provision of 
the rule.
    The final rule also contains several changes from the NPRM. For 
example, as stated elsewhere in this preamble, the rule no longer 
requires vessels, facilities, or OCS facilities to purchase, install, 
and maintain biometric smart card readers; it does not include the 
recordkeeping requirements proposed in the NPRM; and affected firms do 
not have to submit a TWIC addendum to the Coast Guard. These changes 
also caused us to adjust our cost estimates.
    Table 8 displays how our low, primary, and high initial compliance 
cost estimates, as reported in the IRFA for the NPRM, have changed for 
small vessels. As previously described, these increased costs to small 
vessels are primarily a function of our increased cost estimate for 
small vessels to provide escorts to employees and visitors seeking 
access to secure and restricted areas.

[[Page 3573]]

[GRAPHIC] [TIFF OMITTED] TR25JA07.001

    Table 9 shows how we adjusted our low, primary, and high initial 
compliance cost estimates for small facilities from the NPRM estimates 
included in the IRFA. Again, the change in cost estimates is 
principally the result of modifications to our estimates for facilities 
to provide escorted access to employees and visitors who do not have 
unescorted access authority. (As there are no small entities that 
operate facilities on the OCS, we did not estimate compliance costs for 
these firms under the FRFA.)
[GRAPHIC] [TIFF OMITTED] TR25JA07.002

    Even though we have determined that this rule will have a 
significant economic impact on a substantial number of small entities, 
we also believe that the rule provides small entities with a 
significant amount of flexibility to achieve the requirements of the 
regulation.
    First, and perhaps most importantly, the final rule no longer 
requires the use of biometric smart card readers by vessels, 
facilities, and OCS facilities. This should substantial decrease the 
burden on small entities, as there is no new capital investment 
required under this rulemaking. Additionally, the Coast Guard will 
conduct spot checks with hand held readers to ensure that individuals 
and regulated entities are utilizing the TWIC in a fashion consistent 
with the requirements of the rule. By completing these checks, the 
Coast Guard will be able verify the identity of TWIC holders, as well 
as confirm the validity of their credentials. This should also serve to 
lower the regulatory burden on small entities by transitioning some of 
the cost of TWIC verifications to the Federal government.
    The recordkeeping requirement proposed in the NPRM has also been 
dropped from the final rule, as has the requirement for firms to submit 
TWIC addenda. These alterations should also decrease the cost of 
compliance to small entities.
    The provision for passenger access areas, which we originally 
proposed in the NPRM for passenger vessels, remains in the final rule 
and provides flexibility for small entities offering services to 
passengers. MTSA provides that no one may have unescorted access to 
secure areas unless they carry a

[[Page 3574]]

TWIC. To ensure that passenger vessels do not have to require 
passengers to obtain TWICs or ensure that passengers are ``escorted'' 
at all times while on the vessel, the rule creates the ``passenger 
access area,'' allowing vessel owners/operators to carve out areas 
within the secure areas aboard their vessels where passengers are free 
to move about unescorted.
    In addition to the passenger access areas, the final rule creates 
``employee access areas,'' allowing passenger vessel and ferry owners/
operators more flexibility. 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. We believe 
that this new provision should reduce the regulatory burden on many 
small passenger vessels, especially those that primarily utilize and 
rely on seasonal labor.
    The final rule also includes a new provision that will allow a 
direct hire new employee to receive limited access to secure areas of a 
vessel or facility, provided that both the new employee and the owner/
operator meet certain stipulations, which are detailed in the 
regulatory text. This new policy, which TSA and the Coast Guard did not 
propose in the NPRM, is intended to give owners/operators the 
flexibility to quickly give new employees who do not yet hold a TWIC 
access to secure areas.
    In addition to making accommodations for new hires, the final rule 
also includes a provision for individuals who have reported their 
credential as either lost, damaged, or stolen. Although the provision 
contains certain caveats that are specified in the regulatory text, 
this new policy allows an employee missing or unable to use his or her 
credential to receive limited unescorted access to secure areas, 
including restricted areas, for seven calendar days.
    Further, the final rule also allows certain facilities to submit 
amendments to their security plans in order to redefine their access 
control areas, which in turn may reduce their secure areas. By allowing 
small facilities to more closely focus their access control areas on a 
portion of their facility directly related to maritime transportation, 
this may reduce the rule's economic impact on small entities.
    Finally, in an effort to maintain security but ensure applicants' 
rights, the rule now also allows for review by an ALJ in cases where 
TSA denies a waiver request. Moreover, the final rule extends the 
response time for applicants to appeal an adverse determination, 
correct an open criminal disposition, or apply for a waiver to 60 days. 
In addition, individuals, such as mariners who are at sea for extended 
periods of time, who legitimately miss the 60-day response time period 
may petition TSA to reconsider an Initial Determination.
    TSA and the Coast Guard believe the policies outlined above provide 
small entities with flexibility in complying with the rule. We believe 
the final rule minimizes the adverse economic effects to small business 
while fulfilling all statutory requirements, as well as TSA's and the 
Coast Guard's primary objective of increased security.

C. Assistance for Small Entities

    Under section 213(a) of the Small Business Regulatory Enforcement 
Fairness Act of 1996 (Pub. L. 104-121), we want to assist small 
entities in understanding this proposed rule so that they can better 
evaluate its effects on them and participate in the rulemaking. If the 
rule would affect your small business, organization, or governmental 
jurisdiction and you have questions concerning its provisions or 
options for compliance, please consult LCDR Jonathan Maiorine, 
Commandant (G-PCP-2), United States Coast Guard, 2100 Second Street, 
SW., Washington, DC 20593; telephone 1 (877) 687-2243. DHS will not 
retaliate against small entities that question or complain about this 
rule or any policy or action of DHS.
    Small businesses may send comments on the actions of Federal 
employees who enforce, or otherwise determine compliance with, Federal 
regulations to the Small Business and Agriculture Regulatory 
Enforcement Ombudsman and the Regional Small Business Regulatory 
Fairness Boards. The Ombudsman evaluates these actions annually and 
rates each agency's responsiveness to small business. If you wish to 
comment on actions by employees of TSA or of the Coast Guard, call 1-
888-REG-FAIR (1-888-734-3247).

D. Collection of Information

    This rule would call for a collection of information under the 
Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520). As defined in 5 
CFR 1320.3(a), ``collection of information'' includes reporting, 
recordkeeping, monitoring, posting, labeling, and other, similar 
actions. The title and description of the information collections, a 
description of those who must collect the information, and an estimate 
of the total annual burden follow. The estimate covers the time for 
reviewing instructions, searching existing sources of data, gathering 
and maintaining the data needed, and completing and reviewing the 
collection.
    Title: Transportation Worker Identification Credential (TWIC) 
Program.
    Summary of the Collection of Information:
    Need for Information: TSA has developed the Transportation Worker 
Identification Credential (TWIC) as an identification tool that 
encompasses the authorities of the Aviation and Transportation Security 
Act of 2001 (ATSA) (Pub. L. 107-71, Sec. 106), and the Maritime 
Transportation Security Act of 2002 (MTSA) (Pub. L. 107-295, Sec. 102) 
to perform background checks and issue credentials to workers within 
the national transportation system. The data to be collected is that 
biographic and biometric information necessary for TSA to complete the 
required security threat assessment on individuals who will seek 
unescorted access to secure areas of vessels and maritime facilities 
through the use of a TWIC. TWIC cards, when issued, will contain 
biographic and biometric data necessary to prove identity of the 
cardholder and to interoperate with access control systems on vessels 
and at facilities nationwide.
    Proposed Use of Information: TSA will use the information to verify 
the identity of the individual applying for a TWIC and to verify that 
the person poses no security threat that would preclude issuance of a 
TWIC.
    Description of the Respondents: The respondents to this collection 
of information will be workers within the national transportation 
system, specifically individuals who require unescorted access to 
secure areas of vessels or maritime facilities.
    Number of Respondents: Although the number of respondents will vary 
over three years, TSA estimates that the annualized number of total 
respondents will be approximately 317,400. Based on research conducted 
by TSA and the Coast Guard, the total estimated base population that 
will be affected by TWIC is 750,000. However, TSA estimates that more 
than seventy percent of the base maritime worker population will enroll 
in the program in the first year, and the remainder will enroll in year 
two. Turnover and growth within the affected population is expected to 
result in another 202,257 respondents.
    Frequency of Response: Because renewals for the TWIC will be on a 
five year basis, for purposes of the Paperwork Reduction Act, to apply 
for a TWIC, each respondent will be

[[Page 3575]]

required to respond once to the enrollment collection. TSA estimates an 
additional response from the estimated two percent of respondents who 
will appeal decisions made by the agency with respect to security 
threat assessments or ask for a waiver from disqualifying offenses. 
Thus, TSA estimates the number of total annual responses to be 
approximately 323,800.
    Burden of Response: TSA estimates the annual hour burden for 
enrollment to be 476,129, or one and one half hour per respondent. TSA 
estimates the annual hour burden for appeals and waiver to be 
approximately 38,100.
    TSA has determined that the information collection and card 
issuance portion of the TWIC fee will be between $45 and $65 per 
respondent. This portion of the fee accounts for more than the actual 
cost of the information collection as it includes cost of the 
enrollment process, system operations and maintenance, and TWIC 
distribution.
    Estimate of Total Annual Burden: TSA estimates the total annual 
hour burden as a result of this collection of information to be 
approximately 514,200. Because the TWIC fee may change over time as 
actual costs are determined and annualized, TSA estimates total annual 
fee for respondents to be between $14,283,855 and $20,632,235.
    As required by the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 
3507(d)), we have submitted a copy of this proposed rule to the Office 
of Management and Budget (OMB) for its review of the collection of 
information.
    The provisions contained in the amendments to Title 33 do not call 
for a new collection of information under the PRA (44 U.S.C. 3501-
3520). While they include potential amendments of vessel or facility 
security plans, these amendments are covered by an approved collection 
of information. The approval number from OMB is OMB Control Number(s) 
1625-0077 ``Security Plan for Ports, Vessels, Facilities, Outer 
Continental Shelf Facilities and Other Security-Related Requirements,'' 
which expires on July 31, 2008.
    The new hire provision requirements affecting Homeport will be 
added to collection 1625-0110 ``Maritime Identification Credentials--
Title 33 CFR Part 125'', which expired on November 30, 2006. The three 
year renewal for 1625-0110 was submitted to OMB on October 6, 2006 and 
an amendment to that renewal reflecting the proposed changes due to the 
new hire provisions was submitted to OMB on December 29, 2006. The 
revision would change the collection, once the TWIC program goes into 
effect, to make the submission of new hire information voluntary and 
require owners and operators to receive a positive verification from 
Homeport prior to granting access to the new hire. The government's 
need for the information, the type of information to be submitted, the 
method of submission, and the frequency of submission should not change 
from the current collection.
    You need not respond to a collection of information unless it 
displays a currently valid control number from OMB. Before the 
requirements for this collection of information become effective, we 
will publish a Notice in the Federal Register of OMB's decision to 
approve, modify, or disapprove the collection.

E. Executive Order 13132 (Federalism)

    A rule has implications for federalism under E.O. 13132, if it has 
a substantial direct effect on State or local governments and would 
either preempt State law or impose a substantial direct cost of 
compliance on them. TSA and Coast Guard have analyzed this final rule 
under that Order and have determined that it has implications for 
federalism, for the same reasons that we found federalism impacts for 
the Coast Guard's previously published MTSA regulations. 68 FR at 
60468-9. A summary of the impacts on federalism in this rule follows.
    This rule would have a substantial direct effect on States, local 
governments, or political subdivisions under section 1(a) of the Order 
when those states owning vessels/facilities are required to implement a 
TWIC program. It would also preempt State law under section 6(c) of the 
Order by: Continuing to prevent States from regulating mariners; and 
continuing to prevent the States from requiring security plans.
    Regulations already issued by the Coast Guard under other sections 
of the MTSA of 2002 cited the need for national standards of security, 
claimed preemption, and received comments in support of such a scheme. 
See, 68 FR 60448, 60468-60469. (October 23, 2003).
    The law is well-settled that States may not regulate in categories 
expressly reserved for regulation by the Coast Guard. The law also is 
well-settled that all of the categories covered in 46 U.S.C. 3306, 
3703, 7101, and 8101 (design, construction, alteration, repair, 
maintenance, operation, equipping, personnel qualification, and manning 
of vessels), as well as the reporting of casualties and any other 
category in which Congress intended the Coast Guard to be the sole 
source of a vessel's obligations, are within the field foreclosed from 
regulation by the States. See United States v. Locke and Intertanko v. 
Locke, 529 U.S. 89 (2000). Since portions of this proposed rule involve 
the manning of U.S. vessels and the licensing of merchant mariners, it 
relates to personnel qualifications. Because the states may not 
regulate within this category, these portions of this rule do not 
present new preemption issues under E.O. 13132.
    We are only asserting field preemption in those areas where federal 
regulations have historically dominated the field, such as merchant 
mariner regulations, or where we are amending regulations that we have 
previously preempted state regulation, such as the MTSA regulations 
found in 33 CFR chapter I, subchapter H. States would not be preempted 
from instituting their own background checks or badging systems in 
addition to the TWIC.
    Some commenters objected to allowing State or local governments to 
impose credentialing or background check requirements, noting that it 
results in multiple background checks for workers. We have carefully 
considered whether State and local governments should be preempted from 
doing so, and have determined that we are not preempting such State and 
local activities.
    Under this rulemaking, States will not be preempted from 
instituting their own background checks or badging systems in addition 
to the TWIC. We note that a State may be the proprietor of ports or 
port facilities, and as the proprietor is free to set standards for who 
may enter onto their facilities, as does any other proprietor. In 
addition, States may have set standards for reasons other than guarding 
against the threat of terrorism, such as to combat drug smuggling or 
organized crime. As such they are not regulating in the areas that DHS 
is regulating.
    The Department has also considered an additional federalism matter 
with respect to the TWIC credential. Section 102 of MTSA, 46 U.S.C. 
70105, contains no express exceptions for State and local officials. As 
noted earlier in this preamble, however, the Department will not with 
this final rule require State and local officials to obtain a TWIC 
credential prior to their unescorted access to the ports. The 
Department's decision reflects the concern that denying port access to 
State and local officials, including law enforcement officials, may 
have serious federalism implications, particularly where there is not 
sufficient evidence of Congress's intent to do so. State law 
enforcement officials, for example, have authority and emergency aid 
responsibilities in

[[Page 3576]]

and around ports pursuant to laws properly promulgated by State 
legislatures and consistent with historic State police powers. The 
incidental application to these State officials of the MTSA's generally 
applicable requirements--for example, by barring them from secure areas 
of ports unless they obtain a federal credential--may excessively 
interfere with the functioning of State governments. Cf. Printz v. 
United States, 521 U.S. 898, 932 (1997); see also Gregory v. Ashcroft, 
501 U.S. 452, 460 (1991) (emphasizing importance of State power to 
prescribe qualifications of its own officials. ``Through the structure 
of its government and the character of those who exercise government 
authority, a State defines itself as a sovereign''). We are hesitant to 
impose such a requirement on State and local governments when Congress 
has not made its intention in this respect clear and manifest. See Rice 
v. Santa Fe Elevator Corp., 331 U.S. 218, 230 (1947). The decision to 
exempt State and local officials from the TWIC requirements thus 
maintains the role of State and local officials in areas traditionally 
under their jurisdiction.

F. Unfunded Mandates Reform Act

    The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) 
requires Federal agencies to assess the effects of their discretionary 
regulatory actions. In particular, the Act addresses actions that may 
result in the expenditure by a State, local, or tribal government, in 
the aggregate, or by the private sector of $100,000,000 or more in any 
one year. This rule would result in such an expenditure for the private 
sector, and we discuss the effects of this rule in the Final Regulatory 
Assessment, which is summarized in the E.O. 12866 section above.

G. Taking of Private Property

    This rule would not affect a taking of private property or 
otherwise have taking implications under E.O. 12630, Governmental 
Actions and Interference with Constitutionally Protected Property 
Rights.

H. Civil Justice Reform

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

I. Protection of Children

    We have analyzed this rule under E.O. 13045, Protection of Children 
from Environmental Health Risks and Safety Risks. While this rule is an 
economically significant rule, it would not create an environmental 
risk to health or safety that might disproportionately affect children.

J. Indian Tribal Governments

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

K. Energy Effects

    We have analyzed this rule under E.O. 13211, Actions Concerning 
Regulations That Significantly Affect Energy Supply, Distribution, or 
Use. We have determined that it is not a ``significant energy action'' 
under that order. While it is a ``significant regulatory action'' under 
E.O. 12866, it is not likely to have a significant adverse effect on 
the supply, distribution, or use of energy. The Administrator of the 
Office of Information and Regulatory Affairs has not designated it as a 
significant energy action. Therefore, a Statement of Energy Effects is 
not required for this rule under E.O. 13211.
    One commenter disagreed with this statement, stating that any 
significant new regulation of the transportation system will 
significantly affect the distribution system, particularly in the short 
term. The commenter requested a delay in the effective date of the rule 
along with a longer time period to ensure full compliance with the 
program. The commenter expressed doubt that there will be an adequate 
supply of TWIC readers available, adding that the regulations must 
allow companies to operate until the TWIC system is installed and 
usable.
    We disagree with the commenter. The original MTSA regulations were 
also a significant new regulation of the maritime transportation 
system, and we did not see a significant effect on the energy 
distribution system during the implementation of those regulations. 
However, we note that the intent of this commenter is being satisfied, 
as the reader requirements have not been included in the final rule.

L. Technical Standards

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

M. Environment

    The Transportation Worker Identification Credential (TWIC) rule 
contains a program of activities to improve the safety and security of 
vessels, facilities, OCS facilities, and U.S. ports. It establishes 
requirements for secure identification cards, developing application 
forms, collecting and processing forms, application evaluation 
criteria, issuing determinations on applications, and use of the 
identification cards to enhance security at MTSA-regulated facilities 
and vessels. It will contribute to a higher level of marine safety and 
security for vessels, facilities, OCS facilities, and U.S. ports.
    Initially, implementation of this rule will involve establishing 
``enrollment stations'' to collect TWIC applications. The enrollment 
stations will include a small office, using existing utilities where 
possible, located in space made available in existing port facilities 
or other available space within a 25 mile radius of the port facility. 
If a location does not have a port facility, or enough space, a 
temporary unit will be provided until either sufficient permanent space 
is available or the need for the enrollment station no longer exists. 
To meet the initial surge of enrollments expected, approximately 130 
stations (permanent and mobile/temporary) are expected to be operating 
nationwide. The ongoing/maintenance phase will involve approximately 
134 stations.
    Once the initial enrollment period is complete and TWICs have been 
issued to maritime personnel, implementation will involve an inspection 
of the TWIC by the vessel or facility owner/operator for a worker to 
gain unescorted access to secure areas of vessels and facilities. The 
inspection of the TWIC must include:
    (i) A match of the photo on the TWIC to the individual presenting 
the TWIC;
    (ii) Verification that the TWIC has not expired; and

[[Page 3577]]

    (iii) A visual check of the various security features present on 
the card to ensure that the TWIC has not been forged or tampered.
    There are preexisting requirements in 46 U.S.C. 70103(c)(3)(C) and 
in 33 CFR part 125 that require waterfront facilities and vessels to 
maintain security plans that implement access control measures 
including the use of appropriate identification credentials. In 
addition, current regulations at 33 CFR part 101 establish federal 
identification standards. At some seaports, States and port operators 
have also established identification requirements. States and port 
operators have the option to either replace their existing 
identification requirements with the TWIC or to maintain their existing 
identification requirements in addition to the TWIC. In either case, 
inspection of the TWIC is not expected to add significant time to the 
entry procedures at any seaport.
    The provisions of this rule have been analyzed under the Department 
of Homeland Security (DHS) Management Directive (MD) 5100.1, 
Environmental Planning Program, which is the DHS policy and procedures 
for implementing the National Environmental Policy Act (NEPA), and 
related E.O.s and requirements. Based on a review of current practices 
and expected changes that would result from this rule, there would be 
no significant environmental impact in requiring those entering the 
port facility to display the TWIC card in addition to or as a 
substitute for their regular identification as a flash pass. There are 
no extraordinary circumstances presented by this rule that would limit 
the use of a CATEX under MD 5100.1, Appendix A, paragraph 3.2. The 
implementation of this rule is categorically excluded under the 
following categorical exclusions (CATEX) listed in MD 5100.1, Appendix 
A, Table 1: CATEX A1 (personnel, fiscal, management and administrative 
activities); CATEX A3 (promulgation of rules, issuance of rulings or 
interpretations); and CATEX A4 (information gathering, data analysis 
and processing, information dissemination, review, interpretation and 
development of documents). CATEX B3 (proposed activities and operations 
to be conducted in an existing structure that would be compatible with 
and similar in scope to ongoing functional uses) and CATEX B 11 
(routine monitoring and surveillance activities that support law 
enforcement or homeland security and defense operations) would also be 
applicable.

VI. Solicitation of Comments

    TSA is soliciting public comments on the card replacement fee. The 
NPRM estimated that the card replacement fee would be $36. Since 
issuance of the NPRM, TSA has learned that the costs associated with 
replacing the card will be higher than anticipated. In this preamble, 
an explanation of the differences appears in section I, Background, 
under Fees. TSA now estimates that it will cost TSA $60 per card to 
issue replacements. Because this cost is significantly higher than 
proposed, TSA invites public comment on this issue. This Final Rule 
establishes the card replacement fee at $36. TSA will issue cards at 
the $36.00 fee but proposes to increase this fee to $60. TSA invites 
comment on the proposed increase of the Card Replacement Fee.

List of Subjects

33 CFR Part 101

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

33 CFR Part 103

    Facilities, Harbors, Maritime security, Ports, Reporting and 
recordkeeping requirements, Security measures, Vessels, Waterways.

33 CFR Part 104

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

33 CFR Part 105

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

33 CFR Part 106

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

33 CFR Part 125

    Administrative practice and procedure, Harbors, Reporting and 
recordkeeping requirements, Security measures, Vessels.

46 CFR Part 10

    Penalties, Reporting and recordkeeping requirements, Schools, 
Seamen.

46 CFR Part 12

    Penalties, Reporting and recordkeeping requirements, Seamen.

46 CFR Part 15

    Reporting and recordkeeping requirements, Seamen, Vessels.

49 CFR Part 1515

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

49 CFR Part 1540

    Air carriers, Airports, Aviation safety, Law enforcement officers, 
Reporting and recordkeeping requirements, Security measures.

49 CFR Part 1570

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

49 CFR Part 1572

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

The Amendments

0
For the reasons listed in the preamble, the Coast Guard amends 33 CFR 
parts 101, 103, 104, 105, 106, 125; and 46 CFR parts 10, 12, and 15 and 
the Transportation Security Administration adds or amends 49 CFR parts 
1515, 1570, and 1572 as follows:

Title 33--Navigation and Navigable Waters

CHAPTER I--COAST GUARD

PART 101--MARITIME SECURITY: GENERAL

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

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


0
2. In Sec.  101.105 add, in alphabetical order, definitions for the 
terms escorting, personal identification number (PIN), recurring 
unescorted access, secure area, TWIC, TWIC

[[Page 3578]]

program, and unescorted access, to read as follows:


Sec.  101.105  Definitions.

* * * * *
    Escorting means ensuring that the escorted individual is 
continuously accompanied while within a secure area in a manner 
sufficient to observe whether the escorted individual is engaged in 
activities other than those for which escorted access was granted. This 
may be accomplished via having a side-by-side companion or monitoring, 
depending upon where the escorted individual will be granted access. 
Individuals without TWICs may not enter restricted areas without having 
an individual who holds a TWIC as a side-by-side companion, except as 
provided in Sec. Sec.  104.267, 105.257, and 106.262 of this 
subchapter.
* * * * *
    Personal Identification Number (PIN) means a personally selected 
number stored electronically on the individual's TWIC.
* * * * *
    Recurring unescorted access means authorization to enter a vessel 
on a continual basis after an initial personal identity and credential 
verification.
* * * * *
    Secure Area means the area on board a vessel or at a facility or 
outer continental shelf facility over which the owner/operator has 
implemented security measures for access control in accordance with a 
Coast Guard approved security plan. It does not include passenger 
access areas, employee access areas, or public access areas, as those 
terms are defined in Sec. Sec.  104.106, 104.107, and 105.106, 
respectively, of this subchapter. Vessels operating under the waivers 
provided for at 46 U.S.C. 8103(b)(3)(A) or (B) have no secure areas. 
Facilities subject to part 105 of this subchapter may, with approval of 
the Coast Guard, designate 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 as their secure 
areas.
* * * * *
    TWIC means a valid, non-revoked transportation worker 
identification credential, as defined and explained in 49 CFR part 
1572.
    TWIC Program means those procedures and systems that a vessel, 
facility, or outer continental shelf facility (OCS) must implement in 
order to assess and validate TWICs when maintaining access control.
* * * * *
    Unescorted access means having the authority to enter and move 
about a secure area without escort.
* * * * *

0
3. Add Sec.  101.514 to read as follows:


Sec.  101.514  TWIC Requirement.

    (a) All persons requiring unescorted access to secure areas of 
vessels, facilities, and OCS facilities regulated by parts 104, 105 or 
106 of this subchapter must possess a TWIC before such access is 
granted, except as otherwise noted in this section. A TWIC must be 
obtained via the procedures established by TSA in 49 CFR part 1572.
    (b) Federal officials are not required to obtain or possess a TWIC. 
Except in cases of emergencies or other exigent circumstances, in order 
to gain unescorted access to a secure area of a vessel, facility, or 
OCS facility regulated by parts 104, 105 or 106 of this subchapter, a 
federal official must present his/her agency issued, HSPD 12 compliant 
credential. Until each agency issues its HSPD 12 compliant cards, 
Federal officials may gain unescorted access by using their agency's 
official credential. The COTP will advise facilities and vessels within 
his or her area of responsibility as agencies come into compliance with 
HSPD 12.
    (c) Law enforcement officials at the State or local level are not 
required to obtain or possess a TWIC to gain unescorted access to 
secure areas. They may, however, voluntarily obtain a TWIC where their 
offices fall within or where they require frequent unescorted access to 
a secure area of a vessel, facility or OCS facility.
    (d) Emergency responders at the State, or local level are not 
required to obtain or possess a TWIC to gain unescorted access to 
secure areas during an emergency situation. They may, however, 
voluntarily obtain a TWIC where their offices fall within or where they 
desire frequent unescorted access to a secure area of a vessel, 
facility or OCS facility in non-emergency situations.
    (e) Before September 25, 2008, mariners do not need to obtain or 
possess a TWIC but may be provided unescorted access to secure areas of 
vessels, facilities, and OCS facilities regulated by parts 104, 105 or 
106 of this subchapter if they are able to show one of the following:
    (1) A valid Merchant Mariner Document (MMD);
    (2) A valid Merchant Mariner License and a valid photo 
identification; or
    (3) A valid Certificate of Registry and a valid photo 
identification.

0
4. Revise Sec.  101.515 to read as follows:


Sec.  101.515  TWIC/Personal Identification.

    (a) Persons not described in Sec.  101.514 of this part shall be 
required to present personal identification in order to gain entry to a 
vessel, facility, and OCS facility regulated by parts 104, 105 or 106 
of this subchapter. These individuals must be under escort, as that 
term is defined in Sec.  101.105 of this part, while inside a secure 
area. This personal identification must, at a minimum, meet the 
following requirements:
    (1) Be laminated or otherwise secure against tampering;
    (2) Contain the individual's full name (full first and last names, 
middle initial is acceptable);
    (3) Contain a photo that accurately depicts that individual's 
current facial appearance; and
    (4) Bear the name of the issuing authority.
    (b) The issuing authority in paragraph (a)(4) of this section must 
be:
    (1) A government authority, or an organization authorized to act of 
behalf of a government authority; or
    (2) The individual's employer, union, or trade association.
    (c) Vessel, facility, and OCS facility owners and operators must 
permit law enforcement officials, in the performance of their official 
duties, who present proper identification in accordance with this 
section and Sec.  101.514 of this part to enter or board that vessel, 
facility, or OCS facility at any time, without delay or obstruction. 
Law enforcement officials, upon entering or boarding a vessel, 
facility, or OCS facility, will, as soon as practicable, explain their 
mission to the Master, owner, or operator, or their designated agent.
    (d) Inspection of credential. (1) Each person who has been issued 
or possesses a TWIC must present the TWIC for inspection upon a request 
from TSA, the Coast Guard, or other authorized DHS representative; an 
authorized representative of the National Transportation Safety Board; 
or a Federal, State, or local law enforcement officer.
    (2) Each person who has been issued or who possesses a TWIC must 
allow his or her TWIC to be read by a reader and must submit his or her 
reference biometric, such as a fingerprint, and any other required 
information, such as a PIN, to the reader, upon a request from TSA, the 
Coast Guard, other authorized DHS representative; or a Federal, State, 
or local law enforcement officer.

[[Page 3579]]

PART 103--MARITIME SECURITY: AREA MARITIME SECURITY

0
5. The authority citation for part 103 continues to read as follows:

    Authority: 33 U.S.C. 1226, 1231; 46 U.S.C. 70102, 70103, 70104, 
70112; 50 U.S.C. 191; 33 CFR 1.05-1, 6.04-11, 6.14, 6.16, and 6.19; 
Department of Homeland Security Delegation No, 0170.1.


0
6. Revise Sec.  103.305(c) to read as follows:


Sec.  103.305  Composition of an Area Maritime Security (AMS) 
Committee.

* * * * *
    (c) Members appointed under this section serve for a term of not 
more than five years. In appointing members, the FMSC should consider 
the skills required by Sec.  103.410 of this part. With the exception 
of credentialed Federal, state and local officials, all AMS Committee 
members shall have a name-based terrorist check from TSA, hold a TWIC, 
or have passed a comparable security threat assessment, if they need 
access to SSI as determined by the FMSC.

0
7. Revise Sec.  103.505(f) to read as follows:


Sec.  103.505  Elements of the Area Maritime Security (AMS) plan.

* * * * *
    (f) Measures to prevent unauthorized access to designated 
restricted areas within the port (e.g., TWIC);
* * * * *

PART 104--MARITIME SECURITY: VESSELS

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

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

0
9. Amend Sec.  104.105 by redesignating paragraph (d) as paragraph (f) 
and adding new paragraphs (d) and (e) to read as follows:


Sec.  104.105  Applicability.

* * * * *
    (d) The TWIC requirements found in this part do not apply to 
foreign vessels.
    (e) The TWIC requirements found in this part do not apply to 
mariners employed aboard vessels moored at U.S. facilities only when 
they are working immediately adjacent to their vessels in the conduct 
of vessel activities.
* * * * *

0
10. Add Sec.  104.106 to read as follows:


Sec.  104.106  Passenger access area.

    (a) A ferry, passenger vessel, or cruise ship may designate areas 
within the vessel as passenger access areas.
    (b) A passenger access area is a defined space, within the area 
over which the owner or operator has implemented security measures for 
access control, of a ferry, passenger vessel, or cruise ship that is 
open to passengers. It is not a secure area and does not require a TWIC 
for unescorted access.

0
11. Add Sec.  104.107 to read as follows:


Sec.  104.107  Employee access area.

    (a) A ferry or passenger vessel, excluding cruise ships, may 
designate areas within the vessel as employee access areas.
    (b) An employee access area is a defined space, within the area 
over which the owner or operator has implemented security measures for 
access control, of a ferry or passenger vessel that is open only to 
employees and not to passengers. It is not a secure area and does not 
require a TWIC for unescorted access.
    (c) Employee access areas may not include any areas defined as 
restricted areas in the VSP.

0
12. Amend Sec.  104.115 by adding paragraphs ( c) and (d) to read as 
follows:


Sec.  104.115  Compliance dates.

* * * * *
    (c) Persons required to obtain a TWIC under this part may enroll 
beginning after the date set by the Coast Guard in a Notice to be 
published in the Federal Register. This notice will be directed to all 
facilities and vessels within a specific COTP zone.
    (d) By September 25, 2008, vessel owners or operators subject to 
paragraph (b) of this section and not excluded by Sec.  104.105(d) of 
this part must be operating in accordance with the TWIC provisions 
found within this part.

0
13. Amend Sec.  104.120 by adding paragraph (c) to read as follows:


Sec.  104.120  Compliance documentation.

* * * * *
    (c) Each vessel owner or operator who designates a passenger or 
employee access area (as those terms are defined in Sec. Sec.  104.106 
and 104.107 of this part) on their vessel must keep on board the vessel 
with their approved VSP a clear, visual representation (such as a 
vessel schematic) of where those designated areas fall. This need not 
be submitted to the Coast Guard for approval until incorporated into 
the VSP at the next VSP submittal (either renewal or amendment), but 
must be made available to the Coast Guard upon request.

Subpart B--Vessel Security Requirements

0
14. Revise Sec.  104.200(b) to read as follows:


Sec.  104.200  Owner or operator.

* * * * *
    (b) For each vessel, the vessel owner or operator must:
    (1) Define the security organizational structure for each vessel 
and provide all personnel exercising security duties or 
responsibilities within that structure with the support needed to 
fulfill security obligations;
    (2) Designate, in writing, by name or title, a Company Security 
Officer (CSO), a Vessel Security Officer (VSO) for each vessel, and 
identify how those officers can be contacted at any time;
    (3) Ensure personnel receive training, drills, and exercises 
enabling them to perform their assigned security duties;
    (4) Inform vessel personnel of their responsibility to apply for 
and maintain a TWIC, including the deadlines and methods for such 
applications, and of their obligation to inform TSA of any event that 
would render them ineligible for a TWIC, or which would invalidate 
their existing TWIC;
    (5) Ensure vessel security records are kept;
    (6) Ensure that adequate coordination of security issues takes 
place between vessels and facilities; this includes the execution of a 
Declaration of Security (DoS);
    (7) Ensure coordination of shore leave, transit, or crew change-out 
for vessel personnel, as well as access through the facility of 
visitors to the vessel (including representatives of seafarers' welfare 
and labor organizations), with facility operators in advance of a 
vessel's arrival. Vessel owners or operators may refer to treaties of 
friendship, commerce, and navigation between the U.S. and other nations 
in coordinating such leave. The text of these treaties can be found at 
http://www.marad.dot.gov/Programs/treaties.html;
    (8) Ensure security communication is readily available;
    (9) Ensure coordination with and implementation of changes in 
Maritime Security (MARSEC) Level;
    (10) Ensure that security systems and equipment are installed and 
maintained;
    (11) Ensure that vessel access, including the embarkation of 
persons and their effects, is controlled;
    (12) Ensure that TWIC procedures are implemented as set forth in 
this part, including;

[[Page 3580]]

    (i) Ensuring that only individuals who hold a TWIC and are 
authorized to be in secure areas are permitted to escort;
    (ii) Identifying what action is to be taken by an escort, or other 
authorized individual, should individuals under escort engage in 
activities other than those for which escorted access was granted; and
    (iii) Notifying vessel employees, and passengers if applicable, of 
what parts of the vessel are secure areas, employee access areas, and 
passenger access areas, as applicable, and ensuring such areas are 
clearly marked.
    (13) Ensure that restricted areas are controlled and TWIC 
provisions are coordinated, if applied to such restricted areas;
    (14) Ensure that protocols consistent with Sec.  104.265(c) of this 
part, for dealing with individuals requiring access who report a lost, 
damaged, or stolen TWIC, or who have applied for and not yet received a 
TWIC, are in place;
    (15) Ensure that cargo and vessel stores and bunkers are handled in 
compliance with this part;
    (16) Ensure restricted areas, deck areas, and areas surrounding the 
vessel are monitored;
    (17) Provide the Master, or for vessels on domestic routes only, 
the CSO, with the following information:
    (i) Parties responsible for appointing vessel personnel, such as 
vessel management companies, manning agents, contractors, 
concessionaires (for example, retail sales outlets, casinos, etc.);
    (ii) Parties responsible for deciding the employment of the vessel, 
including time or bareboat charters or any other entity acting in such 
capacity; and
    (iii) In cases when the vessel is employed under the terms of a 
charter party, the contract details of those documents, including time 
or voyage charters; and
    (18) Give particular consideration to the convenience, comfort, and 
personal privacy of vessel personnel and their ability to maintain 
their effectiveness over long periods; and
    (19) If applicable, ensure that protocols consistent with Sec.  
104.267 of this part, for dealing with newly hired employees who have 
applied for and not yet received a TWIC, are in place.

0
15. Amend Sec.  104.210 by adding paragraphs (a)(5), (b)(2)(xv) and 
(c)(15) to read as follows:


Sec.  104.210  Company Security Officer (CSO).

    (a) * * *
    (5) The CSO must maintain a TWIC.
    (b) * * *
    (2) * * *
    (xv) Knowledge of TWIC requirements
    (c) * * *
    (15) Ensure the TWIC program is being properly implemented.

0
16. Amend Sec.  104.215 by adding paragraphs (a)(6), (b)(7) and (c)(12) 
to read as follows:


Sec.  104.215  Vessel Security Officer (VSO).

    (a) * * *
    (6) The VSO must maintain a TWIC.
    (b) * * *
    (7) TWIC
    (c) * * *
    (12) Ensure TWIC programs are in place and implemented 
appropriately.

0
17. Amend Sec.  104.220 by revising the introductory paragraph and 
adding paragraph (n) to read as follows:


Sec.  104.220  Company or vessel personnel with security duties.

    Company and vessel personnel responsible for security duties must 
maintain a TWIC, and must have knowledge, through training or 
equivalent job experience, in the following, as appropriate:
* * * * *
    (n) Relevant aspects of the TWIC program and how to carry them out.

0
18. Amend Sec.  104.225 by adding paragraph (f) to read as follows:


Sec.  104.225  Security training for all other personnel.

* * * * *
    (f) Relevant aspects of the TWIC program and how to carry them out.

0
19. Revise Sec.  104.265 to read as follows:


Sec.  104.265  Security measures for access control.

    (a) General. The vessel owner or operator must ensure the 
implementation of security measures to:
    (1) Deter the unauthorized introduction of dangerous substances and 
devices, including any device intended to damage or destroy persons, 
vessels, facilities, or ports;
    (2) Secure dangerous substances and devices that are authorized by 
the owner or operator to be on board;
    (3) Control access to the vessel; and
    (4) Prevent an unescorted individual from entering an area of the 
vessel that is designated as a secure area unless the individual holds 
a duly issued TWIC and is authorized to be in the area.
    (b) The vessel owner or operator must ensure that the following are 
specified:
    (1) The locations providing means of access to the vessel where 
access restrictions or prohibitions are applied for each Maritime 
Security (MARSEC) Level, including those points where TWIC access 
control provisions will be applied. ``Means of access'' include, but 
are not limited, to all:
    (i) Access ladders;
    (ii) Access gangways;
    (iii) Access ramps;
    (iv) Access doors, side scuttles, windows, and ports;
    (v) Mooring lines and anchor chains; and
    (vi) Cranes and hoisting gear;
    (2) The identification of the types of restriction or prohibition 
to be applied and the means of enforcing them;
    (3) The means used to establish the identity of individuals not in 
possession of a TWIC and procedures for escorting, in accordance with 
Sec.  101.515 of this subchapter; and
    (4) Procedures for identifying authorized and unauthorized persons 
at any MARSEC level.
    (c) The vessel owner or operator must ensure that a TWIC program is 
implemented as follows:
    (1) All persons seeking unescorted access to secure areas must 
present their TWIC for inspection before being allowed unescorted 
access, in accordance with Sec.  101.514 of this subchapter. Inspection 
must include:
    (i) A match of the photo on the TWIC to the individual presenting 
the TWIC;
    (ii) Verification that the TWIC has not expired; and
    (iii) A visual check of the various security features present on 
the card to determine whether the TWIC has been tampered with or 
forged.
    (2) If an individual cannot present a TWIC because it has been 
lost, damaged or stolen, and he or she has previously been granted 
unescorted access to the vessel and is known to have had a valid TWIC, 
the individual may be given unescorted access to secure areas for a 
period of no longer than seven consecutive calendar days provided that:
    (i) The individual has reported the TWIC as lost, damaged, or 
stolen to TSA as required in 49 CFR 1572.19(f);
    (ii) The individual can present another identification credential 
that meets the requirements of Sec.  101.515 of this subchapter; and
    (iii) There are no other suspicious circumstances associated with 
the individual's claim of loss or theft.
    (3) If an individual cannot present his or her TWIC for any other 
reason than outlined in paragraph (2) of this section, he or she may 
not be granted unescorted access to the secure area. The individual 
must be under escort, as that term is defined in part 101 of this 
subchapter, at all times when inside a secure area.
    (4) With the exception of persons granted access according to 
paragraph (2) of this section, all persons granted unescorted access to 
secure areas of the vessel must be able to produce his or her TWIC upon 
request.

[[Page 3581]]

    (5) There must be disciplinary measures in place to prevent fraud 
and abuse.
    (6) The vessel's TWIC program should be coordinated, when 
practicable, with identification and TWIC access control measures of 
facilities or other transportation conveyances that interface with the 
vessel.
    (d) If the vessel owner or operator uses a separate identification 
system, ensure that it complies and is coordinated with TWIC provisions 
in this part.
    (e) The vessel owner or operator must establish in the approved VSP 
the frequency of application of any security measures for access 
control, particularly if these security measures are applied on a 
random or occasional basis.
    (f) MARSEC Level 1. The vessel owner or operator must ensure 
security measures in this paragraph are implemented to:
    (1) Employ TWIC as set out in paragraph (c) of this section.
    (2) Screen persons, baggage (including carry-on items), personal 
effects, and vehicles for dangerous substances and devices at the rate 
specified in the approved VSP, except for government-owned vehicles on 
official business when government personnel present identification 
credentials for entry;
    (3) Conspicuously post signs that describe security measures 
currently in effect and clearly state that:
    (i) Boarding the vessel is deemed valid consent to screening or 
inspection; and
    (ii) Failure to consent or submit to screening or inspection will 
result in denial or revocation of authorization to board;
    (4) Check the identification of any person not holding a TWIC and 
seeking to board the vessel, including vessel passengers, vendors, 
personnel duly authorized by the cognizant government authorities, and 
visitors. This check includes confirming the reason for boarding by 
examining at least one of the following:
    (i) Joining instructions;
    (ii) Passenger tickets;
    (iii) Boarding passes;
    (iv) Work orders, pilot orders, or surveyor orders;
    (v) Government identification; or
    (vi) Visitor badges issued in accordance with an identification 
system implemented under paragraph (d) of this section.
    (5) Deny or revoke a person's authorization to be on board if the 
person is unable or unwilling, upon the request of vessel personnel or 
a law enforcement officer, to establish his or her identity in 
accordance with this part or to account for his or her presence on 
board. Any such incident must be reported in compliance with this part;
    (6) Deter unauthorized access to the vessel;
    (7) Identify access points that must be secured or attended to 
deter unauthorized access;
    (8) Lock or otherwise prevent access to unattended spaces that 
adjoin areas to which passengers and visitors have access;
    (9) Provide a designated area on board, within the secure area, or 
in liaison with a facility, for conducting inspections and screening of 
people, baggage (including carry-on items), personal effects, vehicles 
and the vehicle's contents;
    (10) Ensure vessel personnel are not subjected to screening, of the 
person or of personal effects, by other vessel personnel, unless 
security clearly requires it;
    (11) Conduct screening in a way that takes into full account 
individual human rights and preserves the individual's basic human 
dignity;
    (12) Ensure the screening of all unaccompanied baggage;
    (13) Ensure checked persons and their personal effects are 
segregated from unchecked persons and their personal effects;
    (14) Ensure embarking passengers are segregated from disembarking 
passengers;
    (15) Ensure, in liaison with the facility, a defined percentage of 
vehicles to be loaded aboard passenger vessels are screened prior to 
loading at the rate specified in the approved VSP;
    (16) Ensure, in liaison with the facility, all unaccompanied 
vehicles to be loaded on passenger vessels are screened prior to 
loading; and
    (17) Respond to the presence of unauthorized persons on board, 
including repelling unauthorized boarders.
    (g) MARSEC Level 2. In addition to the security measures required 
for MARSEC Level 1 in this section, at MARSEC Level 2, the vessel owner 
or operator must ensure the implementation of additional security 
measures, as specified for MARSEC Level 2 in the approved VSP. These 
additional security measures may include:
    (1) Increasing the frequency and detail of screening of people, 
personal effects, and vehicles being embarked or loaded onto the vessel 
as specified for MARSEC Level 2 in the approved VSP, except for 
government-owned vehicles on official business when government 
personnel present identification credentials for entry;
    (2) X-ray screening of all unaccompanied baggage;
    (3) Assigning additional personnel to patrol deck areas during 
periods of reduced vessel operations to deter unauthorized access;
    (4) Limiting the number of access points to the vessel by closing 
and securing some access points;
    (5) Denying access to visitors who do not have a verified 
destination;
    (6) Deterring waterside access to the vessel, which may include, in 
liaison with the facility, providing boat patrols; and
    (7) Establishing a restricted area on the shore side of the vessel, 
in close cooperation with the facility.
    (h) MARSEC Level 3. In addition to the security measures required 
for MARSEC Level 1 and MARSEC Level 2, the vessel owner or operator 
must ensure the implementation of additional security measures, as 
specified for MARSEC Level 3 in the approved VSP. The additional 
security measures may include:
    (1) Screening all persons, baggage, and personal effects for 
dangerous substances and devices;
    (2) Performing one or more of the following on unaccompanied 
baggage:
    (i) Screen unaccompanied baggage more extensively, for example, x-
raying from two or more angles;
    (ii) Prepare to restrict or suspend handling unaccompanied baggage; 
or
    (iii) Refuse to accept unaccompanied baggage on board;
    (3) Being prepared to cooperate with responders and facilities;
    (4) Limiting access to the vessel to a single, controlled access 
point;
    (5) Granting access to only those responding to the security 
incident or threat thereof;
    (6) Suspending embarkation and/or disembarkation of personnel;
    (7) Suspending cargo operations;
    (8) Evacuating the vessel;
    (9) Moving the vessel; or
    (10) Preparing for a full or partial search of the vessel.

0
20. Add Sec.  104.267 to read as follows:


Sec.  104.267  Security measures for newly hired employees.

    (a) Newly-hired vessel employees may be granted entry to secure 
areas of the vessel for up to 30 consecutive calendar days prior to 
receiving their TWIC provided all of the requirements in paragraph (b) 
of this section are met, and provided that the new hire is accompanied 
by an individual with a TWIC while within the secure areas of the 
vessel. If TSA does not act upon a TWIC application within 30 days, the 
cognizant Coast Guard COTP may

[[Page 3582]]

further extend access to secure areas for another 30 days. The Coast 
Guard will determine whether, in particular circumstances, certain 
practices meet the condition of a new hire being accompanied by another 
individual with a TWIC. The Coast Guard will issue guidance for use in 
making these determinations.
    (b) Newly-hired vessel employees may be granted the access provided 
for in paragraph (a) of this section only if:
    (1) The new hire has applied for a TWIC in accordance with 49 CFR 
part 1572 by completing the full enrollment process, paying the user 
fee, and is not currently engaged in a waiver or appeal process. The 
vessel owner or operator or Vessel Security Officer (VSO) must have the 
new hire sign a statement affirming this, and must retain the signed 
statement until the new hire receives a TWIC;
    (2) The vessel owner or operator or the VSO enters the following 
information on the new hire into the Coast Guard's Homeport website 
(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 presents an identification credential that meets 
the requirements of Sec.  101.515 of this subchapter;
    (4) There are no other circumstances that would cause reasonable 
suspicion regarding the new hire's ability to obtain a TWIC, and the 
vessel owner or operator or VSO have not been informed by the cognizant 
COTP that the new hire poses a security threat; and
    (5) There would be an adverse impact to vessel operations if the 
new hire is not allowed access.
    (c) This section does not apply to any individual being hired as a 
Company Security Officer (CSO) or VSO, or any individual being hired to 
perform vessel security duties.
    (d) The new hire may not begin working on board the vessel under 
the provisions of this section until the owner, operator, or VSO 
receives notification, via Homeport or some other means, the new hire 
has passed an initial name check.

Subpart D--Vessel Security Plan (VSP)

0
21. Revise Sec.  104.405(a)(10) and (b) to read as follows:


Sec.  104.405  Format of the Vessel Security Plan (VSP).

    (a) * * *
    (10) Security measures for access control, including designated 
passenger access areas and employee access areas;
* * * * *
    (b) The VSP must describe in detail how the requirements of subpart 
B of this part will be met. VSPs that have been approved by the Coast 
Guard prior to March 26, 2007, do not need to be amended to describe 
their TWIC procedures until the next regularly scheduled resubmission 
of the VSP.

PART 105--MARITIME SECURITY: FACILITIES

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

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


0
23. Amend Sec.  105.115 by adding paragraphs (c), (d), and (e) to read 
as follows:


Sec.  105.115  Compliance dates.

* * * * *
    (c) Facility owners or operators wishing to designate 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 as their secure area(s) must do so by submitting an 
amendment to their Facility Security Plan to their cognizant COTP, in 
accordance with Sec.  105.415 of this part, by July 25, 2007.
    (d) Persons required to obtain a TWIC under this part may enroll 
beginning after the date set by the Coast Guard in a Notice to be 
published in the Federal Register. This notice will be directed to all 
facilities and vessels within a specific COTP zone.
    (e) Facility owners or operators must be operating in accordance 
with the TWIC provisions in this part by the date set by the Coast 
Guard in a Notice to be published in the Federal Register. This Notice 
will be published at least 90 days before compliance must begin, and 
will be directed to all facilities within a specific Captain of the 
Port zone, based on whether enrollment has been completed in that zone. 
Unless an earlier compliance date is specified in this manner, all 
facility owner or operators will need to implement their TWIC 
provisions no later than September 25, 2008.

Subpart B--Facility Security Requirements

0
24. Revise Sec.  105.200(b) to read as follows:


Sec.  105.200  Owner or operator.

* * * * *
    (b) For each facility, the facility owner or operator must:
    (1) Define the security organizational structure and provide each 
person exercising security duties and responsibilities within that 
structure the support needed to fulfill those obligations;
    (2) Designate, in writing, by name or by title, a Facility Security 
Officer (FSO) and identify how the officer can be contacted at any 
time;
    (3) Ensure that a Facility Security Assessment (FSA) is conducted;
    (4) Ensure the development and submission for approval of an FSP;
    (5) Ensure that the facility operates in compliance with the 
approved FSP;
    (6) Ensure that the TWIC program is properly implemented as set 
forth in this part, including:
    (i) Ensuring that only individuals who hold a TWIC and are 
authorized to be in the secure area in accordance with the FSP are 
permitted to escort;
    (ii) Identifying what action is to be taken by an escort, or other 
authorized individual, should individuals under escort engage in 
activities other than those for which escorted access was granted; and
    (iii) Notifying facility employees, and passengers if applicable, 
of what parts of the facility are secure areas and public access areas, 
as applicable, and ensuring such areas are clearly marked.
    (7) Ensure that restricted areas are controlled and TWIC provisions 
are coordinated, if applied to such restricted areas;
    (8) Ensure that adequate coordination of security issues takes 
place between the facility and vessels that call on it, including the 
execution of a Declaration of Security (DoS) as required by this part;
    (9) Ensure coordination of shore leave for vessel personnel or crew 
change-out, as well as access through the facility for visitors to the 
vessel (including representatives of seafarers' welfare and labor 
organizations), with vessel operators in advance of a vessel's arrival. 
In coordinating such leave, facility owners or operators may refer to 
treaties of friendship, commerce, and navigation between the U.S. and 
other nations. The text of these treaties can be found at http://www.marad.dot.gov/Programs/treaties.html;
    (10) Ensure, within 12 hours of notification of an increase in 
MARSEC Level, implementation of the additional security measures 
required for the new MARSEC Level;
    (11) Ensure security for unattended vessels moored at the facility;

[[Page 3583]]

    (12) Ensure the report of all breaches of security and 
transportation security incidents to the National Response Center in 
accordance with part 101 of this chapter;
    (13) Ensure consistency between security requirements and safety 
requirements;
    (14) Inform facility personnel of their responsibility to apply for 
and maintain a TWIC, including the deadlines and methods for such 
applications, and of their obligation to inform TSA of any event that 
would render them ineligible for a TWIC, or which would invalidate 
their existing TWIC;
    (15) Ensure that protocols consistent with section 105.255(c) of 
this part, for dealing with individuals requiring access who report a 
lost, damaged, or stolen TWIC, or who have applied for and not yet 
received a TWIC, are in place; and
    (16) If applicable, ensure that protocols consistent with Sec.  
105.257 of this part, for dealing with newly hired employees who have 
applied for and not yet received a TWIC, are in place.

0
25. Amend Sec.  105.205 by adding paragraphs (a)(4), (b)(2)(xv) and 
(c)(19) to read as follows:


Sec.  105.205  Facility Security Officer (FSO).

    (a) * * *
    (4) The FSO must maintain a TWIC.
    (b) * * *
    (2) * * *
    (xv) Knowledge of TWIC requirements.
    (c) * * *
    (19) Ensure the TWIC program is being properly implemented.

0
26. Amend Sec.  105.210 by revising the introductory paragraph and 
adding paragraph (n) to read as follows:


Sec.  105.210  Facility personnel with security duties.

    Facility personnel responsible for security duties must maintain a 
TWIC, and must have knowledge, through training or equivalent job 
experience, in the following, as appropriate:
* * * * *
    (n) Familiar with all relevant aspects of the TWIC program and how 
to carry them out.

0
27. Amend Sec.  105.215 by adding paragraph (f) to read as follows:


Sec.  105.215  Security training for all other facility personnel.

* * * * *
    (f) Familiar with all relevant aspects of the TWIC program and how 
to carry them out.

0
28. Revise Sec.  105.255 to read as follows:


Sec.  105.255  Security measures for access control.

    (a) General. The facility owner or operator must ensure the 
implementation of security measures to:
    (1) Deter the unauthorized introduction of dangerous substances and 
devices, including any device intended to damage or destroy persons, 
vessels, facilities, or ports;
    (2) Secure dangerous substances and devices that are authorized by 
the owner or operator to be on the facility;
    (3) Control access to the facility; and
    (4) Prevent an unescorted individual from entering an area of the 
facility that is designated as a secure area unless the individual 
holds a duly issued TWIC and is authorized to be in the area.
    (b) The facility owner or operator must ensure that the following 
are specified:
    (1) The locations where restrictions or prohibitions that prevent 
unauthorized access are applied for each MARSEC Level, including those 
points where TWIC access control provisions will be applied. Each 
location allowing means of access to the facility must be addressed;
    (2) The types of restrictions or prohibitions to be applied and the 
means of enforcing them;
    (3) The means used to establish the identity of individuals not in 
possession of a TWIC, in accordance with Sec.  101.515 of this 
subchapter, and procedures for escorting them;
    (4) Procedures for identifying authorized and unauthorized persons 
at any MARSEC level; and
    (5) The locations where persons, personal effects and vehicle 
screenings are to be conducted. The designated screening areas should 
be covered to provide for continuous operations regardless of the 
weather conditions.
    (c) The facility owner or operator must ensure that a TWIC program 
is implemented as follows:
    (1) All persons seeking unescorted access to secure areas must 
present their TWIC for inspection before being allowed unescorted 
access, in accordance with Sec.  101.514 of this subchapter. Inspection 
must include:
    (i) A match of the photo on the TWIC to the individual presenting 
the TWIC;
    (ii) Verification that the TWIC has not expired; and
    (iii) A visual check of the various security features present on 
the card to determine whether the TWIC has been tampered with or 
forged.
    (2) If an individual cannot present a TWIC because it has been 
lost, damaged or stolen, and he or she has previously been granted 
unescorted access to the facility and is known to have had a valid 
TWIC, the individual may be given unescorted access to secure areas for 
a period of no longer than 7 consecutive calendar days if:
    (i) The individual has reported the TWIC as lost, damaged, or 
stolen to TSA as required in 49 CFR 1572.19(f);
    (ii) The individual can present another identification credential 
that meets the requirements of Sec.  101.515 of this subchapter; and
    (iii) There are no other suspicious circumstances associated with 
the individual's claim of loss or theft.
    (3) If an individual cannot present his or her TWIC for any other 
reason than outlined in paragraph (c)(2) of this section, he or she may 
not be granted unescorted access to the secure area. The individual 
must be under escort, as that term is defined in part 101 of this 
subchapter, at all times when inside of a secure area.
    (4) With the exception of persons granted access according to 
paragraph (c)(2) of this section, all persons granted unescorted access 
to secure areas of the facility must be able to produce his or her TWIC 
upon request.
    (5) There must be disciplinary measures in place to prevent fraud 
and abuse.
    (6) The facility's TWIC program should be coordinated, when 
practicable, with identification and TWIC access control measures of 
vessels or other transportation conveyances that use the facility.
    (d) If the facility owner or operator uses a separate 
identification system, ensure that it complies and is coordinated with 
TWIC provisions in this part.
    (e) The facility owner or operator must establish in the approved 
Facility Security Plan (FSP) the frequency of application of any access 
controls, particularly if they are to be applied on a random or 
occasional basis.
    (f) MARSEC Level 1. The facility owner or operator must ensure the 
following security measures are implemented at the facility:
    (1) Implement TWIC as set out in paragraph (c) of this section.
    (2) Screen persons, baggage (including carry-on items), personal 
effects, and vehicles, for dangerous substances and devices at the rate 
specified in the approved FSP, excluding government-owned vehicles on 
official business when government personnel present identification 
credentials for entry;
    (3) Conspicuously post signs that describe security measures 
currently in effect and clearly state that:
    (i) Entering the facility is deemed valid consent to screening or 
inspection; and

[[Page 3584]]

    (ii) Failure to consent or submit to screening or inspection will 
result in denial or revocation of authorization to enter.
    (4) Check the identification of any person not holding a TWIC and 
seeking entry to the facility, including vessel passengers, vendors, 
personnel duly authorized by the cognizant government authorities, and 
visitors. This check shall include confirming the reason for boarding 
by examining at least one of the following:
    (i) Joining instructions;
    (ii) Passenger tickets;
    (iii) Boarding passes;
    (iv) Work orders, pilot orders, or surveyor orders;
    (v) Government identification; or
    (vi) Visitor badges issued in accordance with an identification 
system implemented under paragraph (d) of this section.
    (5) Deny or revoke a person's authorization to be on the facility 
if the person is unable or unwilling, upon the request of facility 
personnel or a law enforcement officer, to establish his or her 
identity in accordance with this part or to account for his or her 
presence. Any such incident must be reported in compliance with this 
part;
    (6) Designate restricted areas and provide appropriate access 
controls for these areas;
    (7) Identify access points that must be secured or attended to 
deter unauthorized access;
    (8) Deter unauthorized access to the facility and to designated 
restricted areas within the facility;
    (9) Screen by hand or device, such as x-ray, all unaccompanied 
baggage prior to loading onto a vessel; and
    (10) Secure unaccompanied baggage after screening in a designated 
restricted area and maintain security control during transfers between 
the facility and a vessel.
    (g) MARSEC Level 2. In addition to the security measures required 
for MARSEC Level 1 in this section, at MARSEC Level 2, the facility 
owner or operator must ensure the implementation of additional security 
measures, as specified for MARSEC Level 2 in their approved FSP. These 
additional security measures may include:
    (1) Increasing the frequency and detail of the screening of 
persons, baggage, and personal effects for dangerous substances and 
devices entering the facility;
    (2) X-ray screening of all unaccompanied baggage;
    (3) Assigning additional personnel to guard access points and 
patrol the perimeter of the facility to deter unauthorized access;
    (4) Limiting the number of access points to the facility by closing 
and securing some access points and providing physical barriers to 
impede movement through the remaining access points;
    (5) Denying access to visitors who do not have a verified 
destination;
    (6) Deterring waterside access to the facility, which may include, 
using waterborne patrols to enhance security around the facility; or
    (7) Except for government-owned vehicles on official business when 
government personnel present identification credentials for entry, 
screening vehicles and their contents for dangerous substances and 
devices at the rate specified for MARSEC Level 2 in the approved FSP.
    (h) MARSEC Level 3. In addition to the security measures required 
for MARSEC Level 1 and MARSEC Level 2, at MARSEC level 3, the facility 
owner or operator must ensure the implementation of additional security 
measures, as specified for MARSEC Level 3 in their approved FSP. These 
additional security measures may include:
    (1) Screening all persons, baggage, and personal effects for 
dangerous substances and devices;
    (2) Performing one or more of the following on unaccompanied 
baggage:
    (i) Screen unaccompanied baggage more extensively; for example, x-
raying from two or more angles;
    (ii) Prepare to restrict or suspend handling of unaccompanied 
baggage; or
    (iii) Refuse to accept unaccompanied baggage.
    (3) Being prepared to cooperate with responders and facilities;
    (4) Granting access to only those responding to the security 
incident or threat thereof;
    (5) Suspending access to the facility;
    (6) Suspending cargo operations;
    (7) Evacuating the facility;
    (8) Restricting pedestrian or vehicular movement on the grounds of 
the facility; or
    (9) Increasing security patrols within the facility.

0
28. Add Sec.  105.257 to read as follows:


Sec.  105.257  Security measures for newly-hired employees.

    (a) Newly-hired facility employees may be granted entry to secure 
areas of the facility for up to 30 consecutive calendar days prior to 
receiving their TWIC provided all of the requirements in paragraph (b) 
of this section are met, and provided that the new hire is accompanied 
by an individual with a TWIC while within the secure areas of the 
facility. If TSA does not act upon a TWIC application within 30 days, 
the cognizant Coast Guard COTP may further extend access to secure 
areas for another 30 days. The Coast Guard will determine whether, in 
particular circumstances, certain practices meet the condition of a new 
hire being accompanied by another individual with a TWIC. The Coast 
Guard will issue guidance for use in making these determinations.
    (b) Newly-hired facility employees may be granted the access 
provided for in paragraph (a) of this section if:
    (1) The new hire has applied for a TWIC in accordance with 49 CFR 
part 1572 by completing the full enrollment process, paying the user 
fee, and is not currently engaged in a waiver or appeal process. The 
facility owner or operator or the Facility Security Officer (FSO) must 
have the new hire sign a statement affirming this, and must retain the 
signed statement until the new hire receives a TWIC;
    (2) The facility owner or operator or the FSO enters the following 
information on the new hire into the Coast Guard's Homeport website 
(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 presents an identification credential that meets 
the requirements of Sec.  101.515 of this subchapter;
    (4) There are no other circumstances that would cause reasonable 
suspicion regarding the new hire's ability to obtain a TWIC, and the 
facility owner or operator or FSO have not been informed by the 
cognizant COTP that the new hire poses a security threat; and
    (5) There would be an adverse impact to facility operations if the 
new hire is not allowed access.
    (c) This section does not apply to any individual being hired as a 
FSO, or any individual being hired to perform facility security duties.
    (d) The new hire may not begin working at the facility under the 
provisions of this section until the owner, operator, or FSO receives 
notification, via Homeport or some other means, the new hire has passed 
an initial name check.

0
29. Amend Sec.  105.285 by revising paragraph (a)(4) to read as 
follows:


Sec.  105.285  Additional requirements--passenger and ferry facilities.

    (a) * * *
    (4) Deny passenger access to secure and restricted areas unless 
escorted by

[[Page 3585]]

authorized facility security personnel; and
* * * * *

0
30. Revise Sec.  105.290 to read as follows:


Sec.  105.290  Additional requirements--cruise ship terminals.

    At all MARSEC Levels, in coordination with a vessel moored at the 
facility, the facility owner or operator must ensure the following 
security measures:
    (a) Screen all persons, baggage, and personal effects for dangerous 
substances and devices;
    (b) Check the identification of all persons seeking to enter the 
facility. Persons holding a TWIC shall be checked as set forth in this 
part. For persons not holding a TWIC, this check includes confirming 
the reason for boarding by examining passenger tickets, boarding 
passes, government identification or visitor badges, or work orders;
    (c) Designate holding, waiting, or embarkation areas within the 
facility's secure area to segregate screened persons and their personal 
effects awaiting embarkation from unscreened persons and their personal 
effects;
    (d) Provide additional security personnel to designated holding, 
waiting, or embarkation areas within the facility's secure area; and
    (e) Deny individuals not holding a TWIC access to secure and 
restricted areas unless escorted.

0
31. Amend Sec.  105.296 by adding paragraph (a)(4) to read as follows:


Sec.  105.296  Additional requirements--barge fleeting facilities.

    (a) * * *
    (4) Control access to the barges once tied to the fleeting area by 
implementing TWIC as described in Sec.  105.255 of this part.
* * * * *

Subpart D--Facility Security Plan (FSP)

0
32. Revise Sec.  105.405(a)(10) and (b) to read as follows:


Sec.  105.405  Format and content of the Facility Security Plan (FSP).

    (a) * * *
    (10) Security measures for access control, including designated 
public access areas;
* * * * *
    (b) The FSP must describe in detail how the requirements of subpart 
B of this part will be met. FSPs that have been approved by the Coast 
Guard prior to March 26, 2007, do not need to be amended to describe 
their TWIC procedures until the next regularly scheduled resubmission 
of the FSP.

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

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

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


0
34. Amend Sec.  106.110 by adding paragraphs (d) and (e) to read as 
follows:


Sec.  106.110  Compliance dates.

* * * * *
    (d) Persons required to obtain a TWIC under this part may enroll 
beginning after the date set by the Coast Guard in a Notice to be 
published in the Federal Register. This notice will be directed to all 
facilities and vessels within a specific COTP zone.
    (e) Facility owners or operators must be operating in accordance 
with the TWIC provisions in this part by the date set by the Coast 
Guard in a Notice to be published in the Federal Register. This Notice 
will be published at least 90 days before compliance must begin, and 
will be directed to all facilities within a specific Captain of the 
Port zone, based on whether enrollment has been completed in that zone. 
Unless an earlier compliance date is specified in this manner, all 
facility owner or operators will need to implement their TWIC 
provisions no later than September 25, 2008.

0
35. Revise Sec.  106.200(b) to read as follows:


Sec.  106.200  Owner or operator.

* * * * *
    (b) For each OCS facility, the OCS facility owner or operator must:
    (1) Define the security organizational structure for each OCS 
facility and provide each person exercising security duties or 
responsibilities within that structure the support needed to fulfill 
those obligations;
    (2) Designate in writing, by name or title, a Company Security 
Officer (CSO) and a Facility Security Officer (FSO) for each OCS 
facility and identify how those officers can be contacted at any time;
    (3) Ensure that a Facility Security Assessment (FSA) is conducted;
    (4) Ensure the development and submission for approval of a 
Facility Security Plan (FSP);
    (5) Ensure that the OCS facility operates in compliance with the 
approved FSP;
    (6) Ensure that the TWIC program is properly implemented as set 
forth in this part, including:
    (i) Ensuring that only individuals who hold a TWIC and are 
authorized to be in the secure area are permitted to escort; and
    (ii) Identifying what action is to be taken by an escort, or other 
authorized individual, should individuals under escort engage in 
activities other than those for which escorted access was granted.
    (7) Ensure that adequate coordination of security issues takes 
place between OCS facilities and vessels, including the execution of a 
Declaration of Security (DoS) as required by this part;
    (8) Ensure, within 12 hours of notification of an increase in 
MARSEC Level, implementation of the additional security measures 
required by the FSP for the new MARSEC Level;
    (9) Ensure all breaches of security and security incidents are 
reported in accordance with part 101 of this subchapter;
    (10) Ensure consistency between security requirements and safety 
requirements;
    (11) Inform OCS facility personnel of their responsibility to apply 
for and maintain a TWIC, including the deadlines and methods for such 
applications, and of their obligation to inform TSA of any event that 
would render them ineligible for a TWIC, or which would invalidate 
their existing TWIC;
    (12) Ensure that protocols consistent with Sec.  106.260(c) of this 
part, for dealing with individuals requiring access who report a lost, 
damaged, or stolen TWIC, or who have applied for and not yet received a 
TWIC, are in place; and
    (13) If applicable, ensure that protocols consistent with Sec.  
106.262 of this part, for dealing with newly hired employees who have 
applied for and not yet received a TWIC, are in place.

0
36. Amend Sec.  106.205 by adding paragraphs (a)(4), (c)(13) and 
(d)(13) to read as follows:


Sec.  106.205  Company Security Officer (CSO).

    (a) * * *
    (4) The CSO must maintain a TWIC.
* * * * *
    (c) * * *
    (13) Knowledge of TWIC requirements.
    (d) * * *
    (13) Ensure the TWIC program is being properly implemented.

0
37. Amend Sec.  106.210 by adding paragraphs (a)(4) and (c)(15) to read 
as follows:

[[Page 3586]]

Sec.  106.210  OCS Facility Security Officer (FSO).

    (a) * * *
    (4) The FSO must maintain a TWIC.
* * * * *
    (c) * * *
    (15) Ensure the TWIC program is properly implemented.

0
38. Amend Sec.  106.215 by revising the introductory paragraph and 
redesignating paragraphs (k) and (l) as (l) and (m), respectively, and 
adding new paragraph (k) to read as follows:


Sec.  106.215  Company of OCS facility personnel with security duties.

    Company and OCS facility personnel responsible for security duties 
must maintain a TWIC, and must have knowledge, through training or 
equivalent job experience, in the following, as appropriate:
* * * * *
    (k) Familiarity with all relevant aspects of the TWIC program and 
how to carry them out;
* * * * *

0
39. Amend Sec.  106.220 by adding paragraph (f) to read as follows:


Sec.  106.220  Security training for all other OCS personnel.

* * * * *
    (f) Familiarity with all relevant aspects of the TWIC program and 
how to carry them out.
0
40. Revise Sec.  106.260 to read as follows:


Sec.  106.260  Security measures for access control.

    (a) General. The OCS facility owner or operator must ensure the 
implementation of security measures to:
    (1) Deter the unauthorized introduction of dangerous substances and 
devices, including any device intended to damage or destroy persons, 
vessels, or the OCS facility;
    (2) Secure dangerous substances and devices that are authorized by 
the OCS facility owner or operator to be on board;
    (3) Control access to the OCS facility; and
    (4) Prevent an unescorted individual from entering the OCS facility 
unless the individual holds a duly issued TWIC and is authorized to be 
on the OCS facility.
    (b) The OCS facility owner or operator must ensure that the 
following are specified:
    (1) All locations providing means of access to the OCS facility 
where access restrictions or prohibitions are applied for each security 
level to prevent unauthorized access, including those points where TWIC 
access control procedures will be applied;
    (2) The identification of the types of restriction or prohibition 
to be applied and the means of enforcing them;
    (3) The means used to establish the identity of individuals not in 
possession of a TWIC and the means by which they will be allowed access 
to the OCS facility; and
    (4) Procedures for identifying authorized and unauthorized persons 
at any MARSEC level.
    (c) The OCS facility owner or operator must ensure that a TWIC 
program is implemented as follows:
    (1) All persons seeking unescorted access to secure areas must 
present their TWIC for inspection before being allowed unescorted 
access, in accordance with Sec.  101.514 of this subchapter. Inspection 
must include:
    (i) A match of the photo on the TWIC to the individual presenting 
the TWIC;
    (ii) Verification that the TWIC has not expired; and
    (iii) A visual check of the various security features present on 
the card to determine whether the TWIC has been tampered with or 
forged.
    (2) If an individual cannot present a TWIC because it has been 
lost, damaged or stolen, and he or she has previously been granted 
unescorted access to the facility and is known to have had a valid 
TWIC, the individual may be given unescorted access to secure areas for 
a period of no longer than seven consecutive calendar days if:
    (i) The individual has reported the TWIC as lost, damaged or stolen 
to TSA as required in 49 CFR 1572.19(f);
    (ii) The individual can present another identification credential 
that meets the requirements of Sec.  101.515 of this subchapter; and
    (iii) There are no other suspicious circumstances associated with 
the individual's claim of loss or theft.
    (3) If an individual cannot present his or her TWIC for any other 
reason than outlined in paragraph (c)(2) of this section, he or she may 
not be granted unescorted access to the secure area. The individual 
must be under escort, as that term is defined in part 101 of this 
subchapter, at all times when inside of a secure area.
    (4) With the exception of persons granted access according to 
paragraph (c)(2) of this section, all persons granted unescorted access 
to secure areas of the facility must be able to produce his or her TWIC 
upon request.
    (5) There must be disciplinary measures in place to prevent fraud 
and abuse.
    (6) The facility's TWIC program should be coordinated, when 
practicable, with identification and TWIC access control measures of 
vessels or other transportation conveyances that use the facility.
    (d) If the OCS facility owner or operator uses a separate 
identification system, ensure that it is coordinated with 
identification and TWIC systems in place on vessels conducting 
operations with the OCS facility.
    (e) The OCS facility owner or operator must establish in the 
approved Facility Security Plan (FSP) the frequency of application of 
any access controls, particularly if they are to be applied on a random 
or occasional basis.
    (f) MARSEC Level 1. The OCS facility owner or operator must ensure 
the following security measures are implemented at the facility:
    (1) Implement TWIC as set out in paragraph (c) of this section.
    (2) Screen persons and personal effects going aboard the OCS 
facility for dangerous substances and devices at the rate specified in 
the approved FSP;
    (3) Conspicuously post signs that describe security measures 
currently in effect and clearly stating that:
    (i) Boarding an OCS facility is deemed valid consent to screening 
or inspection; and
    (ii) Failure to consent or submit to screening or inspection will 
result in denial or revocation of authorization to be on board;
    (4) Check the identification of any person seeking to board the OCS 
facility, including OCS facility employees, passengers and crews of 
vessels interfacing with the OCS facility, vendors, and visitors and 
ensure that non-TWIC holders are denied unescorted access to the OCS 
facility;
    (5) Deny or revoke a person's authorization to be on board if the 
person is unable or unwilling, upon the request of OCS facility 
personnel or a law enforcement officer, to establish his or her 
identity in accordance with this part or to account for his or her 
presence on board. Any such incident must be reported in compliance 
with this part;
    (6) Deter unauthorized access to the OCS facility;
    (7) Identify access points that must be secured or attended to 
deter unauthorized access;
    (8) Lock or otherwise prevent access to unattended spaces that 
adjoin areas to which OCS facility personnel and visitors have access;
    (9) Ensure OCS facility personnel are not required to engage in or 
be subjected to screening, of the person or of personal effects, by 
other OCS facility personnel, unless security clearly requires it;
    (10) Provide a designated secure area on board, or in liaison with 
a vessel interfacing with the OCS facility, for

[[Page 3587]]

conducting inspections and screening of people and their personal 
effects; and
    (11) Respond to the presence of unauthorized persons on board.
    (g) MARSEC Level 2. In addition to the security measures required 
for MARSEC Level 1 in this section, at MARSEC Level 2, the OCS facility 
owner or operator must ensure the implementation of additional security 
measures, as specified for MARSEC Level 2 in the approved FSP. These 
additional security measures may include:
    (1) Increasing the frequency and detail of screening of people and 
personal effects embarking onto the OCS facility as specified for 
MARSEC Level 2 in the approved FSP;
    (2) Assigning additional personnel to patrol deck areas during 
periods of reduced OCS facility operations to deter unauthorized 
access;
    (3) Limiting the number of access points to the OCS facility by 
closing and securing some access points; or
    (4) Deterring waterside access to the OCS facility, which may 
include, providing boat patrols.
    (h) MARSEC Level 3. In addition to the security measures required 
for MARSEC Level 1 and MARSEC Level 2, at MARSEC level 3, the facility 
owner or operator must ensure the implementation of additional security 
measures, as specified for MARSEC Level 3 in their approved FSP. The 
additional security measures may include:
    (1) Screening all persons and personal effects for dangerous 
substances and devices;
    (2) Being prepared to cooperate with responders;
    (3) Limiting access to the OCS facility to a single, controlled 
access point;
    (4) Granting access to only those responding to the security 
incident or threat thereof;
    (5) Suspending embarkation and/or disembarkation of personnel;
    (6) Suspending the loading of stores or industrial supplies;
    (7) Evacuating the OCS facility; or
    (8) Preparing for a full or partial search of the OCS facility.

0
41. Add Sec.  106.262 to read as follows:


Sec.  106.262  Security measures for newly-hired employees.

    (a) Newly-hired OCS facility employees may be granted entry to 
secure areas of the OCS facility for up to 30 consecutive calendar days 
prior to receiving their TWIC provided all of the requirements in 
paragraph (b) of this section are met, and provided that the new hire 
is accompanied by an individual with a TWIC while within the secure 
areas of the OCS facility. If TSA does not act upon a TWIC application 
within 30 days, the cognizant Coast Guard COTP may further extend 
access to secure areas for another 30 days. The Coast Guard will 
determine whether, in particular circumstances, certain practices meet 
the condition of a new hire being accompanied by another individual 
with a TWIC. The Coast Guard will issue guidance for use in making 
these determinations.
    (b) Newly-hired OCS facility employees may be granted the access 
provided for in paragraph (a) of this section if:
    (1) The new hire has applied for a TWIC in accordance with 49 CFR 
part 1572 by completing the full enrollment process, paying the user 
fee, and is not currently engaged in a waiver or appeal process. The 
OCS facility owner or operator or Facility Security Officer (FSO) must 
have th enew hire sign a statement affirming this, and must retain the 
signed statement until the new hire receives a TWIC;
    (2) The OCS facility owner or operator or the FSO enters 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 presents an identification credential that meets 
the requirements of Sec.  101.515 of this subchapter;
    (4) There are no other circumstances that would cause reasonable 
suspicion regarding the new hire's ability to obtain a TWIC, and the 
OCS facility owner or operator or FSO have not been informed by the 
cognizant COTP that the individual poses a security threat; and
    (5) There would be an adverse impact to OCS facility operations if 
the new hire is not allowed access.
    (c) This section does not apply to any individual being hired as a 
Company Security Officer or FSO, or any individual being hired to 
perform OCS facility security duties.
    (d) The new hire may not begin working at the OCS facility under 
the provisions of this section until the owner, operator, or FSO 
receives notification, via Homeport or some other means, the new hire 
has passed an initial name check.

0
42. Revise Sec.  106.405(b) to read as follows:


Sec.  106.405  Format and content of the Facility Security Plan (FSP).

* * * * *
    (b) The FSP must describe in detail how the requirements of Subpart 
B of this part will be met. FSPs that have been approved by the Coast 
Guard prior to March 26, 2007 do not need to be amended to describe 
their TWIC procedures until the next regularly scheduled resubmission 
of the FSP.

PART 125--IDENTIFICATION CREDENTIALS FOR PERSONS REQUIRING ACCESS 
TO WATERFRONT FACILITIES OR VESSELS

0
43. The authority citation for part 125 is revised to read as follows:

    Authority: R.S. 4517, 4518, secs. 19, 2, 23 Stat. 58, 118, sec. 
7, 49 Stat. 1936, sec. 1, 40 Stat. 220; 46 U.S.C. 570-572, 2, 689, 
and 70105; 50 U.S.C. 191, E.O. 10173, E.O. 10277, E.O. 10352, 3 CFR, 
1949-1953 Comp. pp. 356, 778, 873.


0
44. In Sec.  125.09, revise paragraph (f) and add paragraph (g) to read 
as follows:


Sec.  125.09  Identification credentials.

* * * * *
    (f) Transportation Worker Identification Credential.
    (g) Such other identification as may be approved by the Commandant 
from time to time.

Title 46--Shipping

Chapter I--Coast Guard

PART 10--LICENSING OF MARITIME PERSONNEL

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

    Authority: 14 U.S.C. 633; 31 U.S.C. 9701; 46 U.S.C. 2101, 2103, 
and 2110; 46 U.S.C. chapter 71; 46 U.S.C. 7502, 7505, 7701, and 
8906; E.O. 10173; Department of Homeland Security Delegation No. 
0170.1. sec. 11.107 is also issued under the authority of 44 U.S.C. 
3507.


0
46. Add new Sec.  10.113 to read as follows:


Sec.  10.113  Transportation Worker Identification Credential.

    By September 25, 2008 all mariners holding an active License, 
Certificate of Registry or STCW endorsement issued under this part must 
hold a valid Transportation Worker Identification Credential (TWIC) 
issued by the Transportation Security Administration under 49 CFR part 
1572. Failure to obtain or hold a valid TWIC may serve as a basis for 
suspension or revocation of a mariner's license, COR or STCW 
endorsement under 46 U.S.C. 7702 and 7703.

[[Page 3588]]

PART 12--CERTIFICATION OF SEAMEN

0
47. The authority citation for part 12 is revised to read as follows:

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


0
48. Add new Sec.  12.01-11 to read as follows:


Sec.  12.01-11  Transportation Worker Identification Credential.

    By September 25, 2008 all mariners holding a Merchant Mariner's 
Document or STCW endorsement issued under this part must hold a valid 
Transportation Worker Identification Credential (TWIC) issued by the 
Transportation Security Administration under 49 CFR part 1572. Failure 
to obtain or hold a valid TWIC may serve as a basis for suspension or 
revocation of a mariner's license, COR or STCW endorsement under 46 
U.S.C. 7702 and 7703.

PART 15--MANNING REQUIREMENTS

0
49. The authority citation for part 15 is revised to read as follows:

    Authority: 46 U.S.C. 2101, 2103, 3306, 3703, 8101, 8102, 8104, 
8105, 8301, 8304, 8502, 8503, 8701, 8702, 8901, 8902, 8903, 8904, 
8905(b), 8906, 9102, and 70105; and Department of Homeland Security 
Delegation No. 0170.1.


0
50. Add new Sec.  15.415 to read as follows:


Sec.  15.415  Transportation Worker Identification Credential.

    By September 25, 2008 a person may not employ or engage an 
individual, and an individual may not serve in a position in which an 
individual is required by law or regulation to hold an active License, 
Merchant Mariner Document (MMD), Certificate of Registry (COR), or STCW 
endorsement, unless the individual holds a valid Transportation Worker 
Identification Credential (TWIC). All mariners holding an active 
License, MMD, COR or STCW endorsement issued by the Coast Guard must 
hold a valid TWIC issued by the Transportation Security Administration 
under 49 CFR part 1572.

Title 49--Transportation

Chapter XII--Transportation Security Administration

Subchapter A--Administrative and Procedural Rules

0
51. Add a new part 1515 to subchapter A to read as follows:

PART 1515--APPEAL AND WAIVER PROCEDURES FOR SECURITY THREAT 
ASSESSMENTS FOR INDIVIDUALS

Sec.
1515.1 Scope.
1515.3 Terms used in this part.
1515.5 Appeal of Initial Determination of Threat Assessment based on 
criminal conviction, immigration status, or mental capacity.
1515.7 Procedures for waiver of criminal offenses, immigration 
status, or mental capacity standards.
1515. 9 Appeal of security threat assessment based on other 
analyses.
1515.11 Review by administrative law judge and TSA Final Decision 
Maker.

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


Sec.  1515.1  Scope.

    (a) Appeal. This part applies to applicants who are appealing an 
Initial Determination of Threat Assessment or an Initial Determination 
of Threat Assessment and Immediate Revocation in a security threat 
assessment as described in:
    (1) 49 CFR part 1572 for a hazardous materials endorsement (HME) or 
a Transportation Worker Identification Credential (TWIC); or
    (2) 49 CFR part 1540, Subpart C, for air cargo workers.
    (b) Waivers. This part applies to applicants for an HME or TWIC who 
undergo a security threat assessment described in 49 CFR part 1572 and 
are eligible to request a waiver of certain standards.


Sec.  1515.3  Terms used in this part.

    The terms used in 49 CFR parts 1500, 1540, 1570, and 1572 also 
apply in this part. In addition, the following terms are used in this 
part:
    Administrative law judge means an administrative law judge 
appointed pursuant to the provisions of 5 U.S.C. 3105.
    Applicant means an individual who has applied for one of the 
security threat assessments identified in 49 CFR 1515.1. This includes 
an individual who previously applied for and was found to meet the 
standards for the security threat assessment but TSA later determined 
that the individual poses a security threat.
    Date of service means--
    (1) In the case of personal service, the date of personal delivery 
to the residential address listed on the application;
    (2) In the case of mailing with a certificate of service, the date 
shown on the certificate of service;
    (3) In the case of mailing and there is no certificate of service, 
10 days from the date mailed to the address designated on the 
application as the mailing address;
    (4) In the case of mailing with no certificate of service or 
postmark, the date mailed to the address designated on the application 
as the mailing address shown by other evidence; or
    (5) The date on which an electronic transmission occurs.
    Day means calendar day.
    Final Agency Order means an order issued by the TSA Final Decision 
Maker.
    Decision denying a review of a waiver means a document issued by an 
administrative law judge denying a waiver requested under 49 CFR 
1515.7.
    Mail includes U.S. mail, or use of an express courier service.
    Party means the applicant or the agency attorney.
    Personal delivery includes hand-delivery or use of a contract or 
express messenger service, but does not include the use of Government 
interoffice mail service.
    Properly addressed means a document that shows an address contained 
in agency records, a residential, business, or other address submitted 
by a person on any document provided under this subpart, or any other 
address shown by other reasonable and available means.
    Substantial Evidence means such relevant evidence as a reasonable 
person might accept as adequate to support a conclusion.
    Security threat assessment means the threat assessment for which 
the applicant has applied, as described in 49 CFR 1515.1.
    TSA Final Decision Maker means the Administrator, acting in the 
capacity of the decision maker on appeal, or any person to whom the 
Administrator has delegated the Administrator's decision-making 
authority. As used in this subpart, the TSA Final Decision Maker is the 
official authorized to issue a final decision and order of the 
Administrator.


Sec.  1515.5  Appeal of Initial Determination of Threat Assessment 
based on criminal conviction, immigration status, or mental capacity.

    (a) Scope. This section applies to applicants appealing from an 
Initial Determination of Threat Assessment that was based on one or 
more of the following:
    (1) TSA has determined that an applicant for an HME or a TWIC has a 
disqualifying criminal offense described in 49 CFR 1572.103.
    (2) TSA has determined that an applicant for an HME or a TWIC does

[[Page 3589]]

not meet the immigration status requirements as described in 49 CFR 
1572.105.
    (3) TSA has determined that an applicant for an HME or a TWIC is 
lacking mental capacity as described in 49 CFR 1572.109.
    (b) Grounds for appeal. An applicant may appeal an Initial 
Determination of Threat Assessment if the applicant is asserting that 
he or she meets the standards for the security threat assessment for 
which he or she is applying.
    (1) Initiating an appeal. An applicant initiates an appeal by 
submitting a written reply to TSA, a written request for materials from 
TSA, or by requesting an extension of time in accordance with Sec.  
1515.5(f). If the applicant does not initiate an appeal within 60 days 
of receipt, the Initial Determination of Threat Assessment becomes a 
Final Determination of Threat Assessment.
    (i) In the case of an HME, TSA also serves a Final Determination of 
Threat Assessment on the licensing State.
    (ii) In the case of a mariner applying for TWIC, TSA also serves a 
Final Determination of Threat Assessment on the Coast Guard.
    (iii) In the case of a TWIC, TSA serves a Final Determination of 
Threat Assessment on the appropriate Federal Maritime Security 
Coordinator (FMSC).
    (2) Request for materials. Within 60 days of the date of service of 
the Initial Determination of Threat Assessment, the applicant may serve 
upon TSA a written request for copies of the materials upon which the 
Initial Determination was based.
    (3) TSA response. (i) Within 60 days of receiving the applicant's 
request for materials, TSA serves the applicant with copies of the 
releasable materials upon the applicant on which the Initial 
Determination was based. TSA will not include any classified 
information or other protected information described in paragraph (f) 
of this section.
    (ii) Within 60 days of receiving the applicant's request for 
materials or written reply, TSA may request additional information or 
documents from the applicant that TSA believes are necessary to make a 
Final Determination.
    (4) Correction of records. If the Initial Determination of Threat 
Assessment was based on a record that the applicant believes is 
erroneous, the applicant may correct the record, as follows:
    (i) The applicant contacts the jurisdiction or entity responsible 
for the information and attempts to correct or complete information 
contained in his or her record.
    (ii) The applicant provides TSA with the revised record, or a 
certified true copy of the information from the appropriate entity, 
before TSA determines that the applicant meets the standards for the 
security threat assessment.
    (5) Reply. (i) The applicant may serve upon TSA a written reply to 
the Initial Determination of Threat Assessment within 60 days of 
service of the Initial Determination, or 60 days after the date of 
service of TSA's response to the applicant's request for materials 
under paragraph (b)(1) of this section, if the applicant served such 
request. The reply must include the rationale and information on which 
the applicant disputes TSA's Initial Determination.
    (ii) In an applicant's reply, TSA will consider only material that 
is relevant to whether the applicant meets the standards applicable for 
the security threat assessment for which the applicant is applying.
    (6) Final determination. Within 60 days after TSA receives the 
applicant's reply, TSA serves a Final Determination of Threat 
Assessment or a Withdrawal of the Initial Determination as provided in 
paragraphs (c) or (d) of this section.
    (c) Final Determination of Threat Assessment. (1) If the Assistant 
Administrator concludes that an HME or TWIC applicant does not meet the 
standards described in 49 CFR 1572.103, 1572.105, or 1572.109, TSA 
serves a Final Determination of Threat Assessment upon the applicant. 
In addition--
    (i) In the case of an HME, TSA serves a Final Determination of 
Threat Assessment on the licensing State.
    (ii) In the case of a TWIC, TSA serves a Final Determination of 
Threat Assessment on the Coast Guard.
    (2) The Final Determination includes a statement that the Assistant 
Administrator has reviewed the Initial Determination, the applicant's 
reply and any accompanying information, and any other materials or 
information available to him or her, and has determined that the 
applicant poses a security threat warranting denial of the security 
threat assessment for which the applicant has applied.
    (d) Withdrawal of Initial Determination. If the Assistant 
Administrator or Assistant Secretary concludes that the applicant does 
not pose a security threat, TSA serves a Withdrawal of the Initial 
Determination upon the applicant, and the applicant's employer where 
applicable.
    (e) Nondisclosure of certain information. In connection with the 
procedures under this section, TSA does not disclose classified 
information to the applicant, as defined in E.O. 12968 sec. 1.1(d), and 
reserves the right not to disclose any other information or material 
not warranting disclosure or protected from disclosure under law.
    (f) Extension of time. TSA may grant an applicant an extension of 
time of the limits for good cause shown. An applicant's request for an 
extension of time must be in writing and be received by TSA within a 
reasonable time before the due date to be extended; or an applicant may 
request an extension after the expiration of a due date by sending a 
written request describing why the failure to file within the time 
limits was excusable. TSA may grant itself an extension of time for 
good cause.
    (h) Judicial review. For purposes of judicial review, the Final 
Determination of Threat Assessment constitutes a final TSA order of the 
determination that the applicant does not meet the standards for a 
security threat assessment, in accordance with 49 U.S.C. 46110. The 
Final Determination is not a final TSA order to grant or deny a waiver, 
the procedures for which are in 49 CFR 1515.7 and 1515.11.
    (i) Appeal of immediate revocation. If TSA directs an immediate 
revocation, the applicant may appeal this determination by following 
the appeal procedures described in paragraph (b) of this section. This 
applies--
    (1) If TSA directs a State to revoke an HME pursuant to 49 CFR 
1572.13(a).
    (2) If TSA invalidates a TWIC by issuing an Initial Determination 
of Threat Assessment and Immediate Revocation pursuant to 49 CFR 
1572.21(d)(3).


Sec.  1515.7  Procedures for waiver of criminal offenses, immigration 
status, or mental capacity standards.

    (a) Scope. This section applies to the following applicants:
    (i) An applicant for an HME or TWIC who has a disqualifying 
criminal offense described in 49 CFR 1572.103(a)(5) through (a)(12) or 
1572.103(b) and who requests a waiver.
    (ii) An applicant for an HME or TWIC who is an alien under 
temporary protected status as described in 49 CFR 1572.105 and who 
requests a waiver.
    (iii) An applicant applying for an HME or TWIC who lacks mental 
capacity as described in 49 CFR 1572.109 and who requests a waiver.
    (b) Grounds for waiver. TSA may issue a waiver of the standards 
described in paragraph (a) and grant an HME or TWIC if TSA determines 
that an applicant does not pose a security threat based on a review of 
information described in paragraph (c) of this section.

[[Page 3590]]

    (c) Initiating waiver. (1) An applicant initiates a waiver as 
follows:
    (i) Providing to TSA the information required in 49 CFR 1572.9 for 
an HME or 49 CFR 1572.17 for a TWIC.
    (ii) Paying the fees required in 49 CFR 1572.405 for an HME or in 
49 CFR 1572.501 for a TWIC.
    (iii) Sending a written request to TSA for a waiver at any time, 
but not later than 60 days after the date of service of the Final 
Determination of Threat Assessment. The applicant may request a waiver 
during the application process, or may first pursue some or all of the 
appeal procedures in 49 CFR 1515.5 to assert that he or she does not 
have a disqualifying condition.
    (2) In determining whether to grant a waiver, TSA will consider the 
following factors, as applicable to the disqualifying condition:
    (i) The circumstances of the disqualifying act or offense.
    (ii) Restitution made by the applicant.
    (iii) Any Federal or State mitigation remedies.
    (iv) Court records or official medical release documents indicating 
that the applicant no longer lacks mental capacity.
    (v) Other factors that indicate the applicant does not pose a 
security threat warranting denial of the HME or TWIC.
    (d) Grant or denial of waivers. (1) The Assistant Administrator 
will send a written decision granting or denying the waiver to the 
applicant within 60 days of service of the applicant's request for a 
waiver, or longer period as TSA may determine for good cause.
    (2) In the case of an HME, if the Assistant Administrator grants 
the waiver, the Assistant Administrator will send a Determination of No 
Security Threat to the licensing State within 60 days of service of the 
applicant's request for a waiver, or longer period as TSA may determine 
for good cause.
    (3) In the case of a mariner applying for a TWIC, if the Assistant 
Administrator grants the waiver, the Assistant Administrator will send 
a Determination of No Security Threat to the Coast Guard within 60 days 
of service of the applicant's request for a waiver, or longer period as 
TSA may determine for good cause.
    (4) If the Assistant Administrator denies the waiver the applicant 
may seek review in accordance with 49 CFR 1515.11. A denial of a waiver 
under this section does not constitute a final order of TSA as provided 
in 49 U.S.C. 46110.
    (e) Extension of time. TSA may grant an applicant an extension of 
the time limits for good cause shown. An applicant's request for an 
extension of time must be in writing and be received by TSA within a 
reasonable time before the due date to be extended; or an applicant may 
request an extension after the expiration of a due date by sending a 
written request describing why the failure to file within the time 
limits was excusable. TSA may grant itself an extension of time for 
good cause.


Sec.  1515.9  Appeal of security threat assessment based on other 
analyses.

    (a) Scope. This section applies to an applicant appealing an 
Initial Determination of Threat Assessment as follows:
    (1) TSA has determined that the applicant for an HME or TWIC poses 
a security threat as provided in 49 CFR 1572.107.
    (2) TSA had determined that an air cargo worker poses a security 
threat as provided in 49 CFR 1540.205.
    (b) Grounds for appeal. An applicant may appeal an Initial 
Determination of Threat Assessment if the applicant is asserting that 
he or she does not pose a security threat. The appeal will be conducted 
in accordance with the procedures set forth in 49 CFR 1515.5(b), (e), 
and (f) and this section.
    (c) Final Determination of Threat Assessment. (1) If the Assistant 
Administrator concludes that the applicant poses a security threat, 
following an appeal, TSA serves a Final Determination of Threat 
Assessment upon the applicant. In addition--
    (i) In the case of an HME, TSA serves a Final Determination of 
Threat Assessment on the licensing State.
    (ii) In the case of a TWIC, TSA serves a Final Determination of 
Threat Assessment on the Coast Guard.
    (iii) In the case of an air cargo worker, TSA serves a Final 
Determination of Threat Assessment on the operator.
    (2) The Final Determination includes a statement that the Assistant 
Administrator has reviewed the Initial Determination, the applicant's 
reply and any accompanying information, and any other materials or 
information available to him or her, and has determined that the 
applicant poses a security threat warranting denial of the security 
threat assessment for which the applicant has applied.
    (d) Withdrawal of Initial Determination. If the Assistant 
Administrator concludes that the applicant does not pose a security 
threat, TSA serves a Withdrawal of the Initial Determination upon the 
applicant, and the applicant's employer where applicable.
    (e) Further review. If the Assistant Administrator denies the 
appeal, the applicant may seek review in accordance with Sec.  1515.11 
of this part. A Final Determination issued under this section does not 
constitute a final order of TSA as provided in 49 U.S.C. 46110.
    (f) Appeal of immediate revocation. If TSA directs an immediate 
revocation, the applicant may appeal this determination by following 
the appeal procedures described in paragraph (b) of this section. This 
applies--
    (1) If TSA directs a State to revoke an HME pursuant to 49 CFR 
1572.13(a).
    (2) If TSA invalidates a TWIC by issuing an Initial Determination 
of Threat Assessment and Immediate Revocation pursuant to 49 CFR 
1572.21(d)(3).
    (3) If TSA withdraws a Determination of No Threat issued for an air 
cargo worker.


Sec.  1515.11  Review by administrative law judge and TSA Final 
Decision Maker.

    (a) Scope. This section applies to the following applicants:
    (1) An applicant who seeks review of a decision by TSA denying a 
request for a waiver under 49 CFR 1515.7.
    (2) An applicant for an HME or a TWIC who has been issued a Final 
Determination of Threat Assessment on the grounds that he or she poses 
a security threat after an appeal as described in 49 CFR 1515.9.
    (3) An air cargo worker who has been issued a Final Determination 
of Threat Assessment after an appeal as described in 49 CFR 1515.9.
    (b) Request for review. No later than 30 calendar days from the 
date of service of the decision by TSA denying a waiver or of the Final 
Determination of Threat Assessment, the applicant may request a review. 
The review will be conducted by an administrative law judge who 
possesses the appropriate security clearance necessary to review 
classified or otherwise protected information and evidence. If the 
applicant fails to seek review within 30 calendar days, the Final 
Determination of Threat Assessment will be final with respect to the 
parties.
    (1) The request for review must clearly state the issue(s) to be 
considered by the administrative law judge (ALJ), and include the 
following documents in support of the request:
    (i) In the case of a review of a denial of waiver, a copy of the 
applicant's request for a waiver under 49 CFR 1515.7, including all 
materials provided by the applicant to TSA in support of the waiver 
request; and a copy of the decision issued by TSA denying the waiver 
request. The request for review may not include evidence or information 
that was not presented to TSA in the appeal under Sec.  1515.9. The ALJ 
may consider only evidence or

[[Page 3591]]

information that was presented to TSA in the appeal. If the applicant 
has new evidence or information, the applicant must file a new appeal 
under Sec.  1515.9 and the pending request for review of the Final 
Determination will be dismissed.
    (ii) In the case of a review of a Final Determination of Threat 
Assessment, a copy of the Initial Notification of Threat Assessment and 
Final Notification of Threat Assessment; and a copy of the applicant's 
appeal under 49 CFR 1515.9, including all materials provided by the 
applicant to TSA in support of the appeal. The request for review may 
not include evidence or information that was not presented to TSA in 
the appeal under Sec.  1515.9. The ALJ may consider only evidence or 
information that was presented to TSA in the appeal. If the applicant 
has new evidence or information, the applicant must file a new appeal 
under Sec.  1515.9 and the pending request for review of the Final 
Determination will be dismissed.
    (2) The applicant may include in the request for review a request 
for an in-person hearing before the ALJ.
    (3) The applicant must file the request for review with the ALJ 
Docketing Center, U.S. Coast Guard, 40 S. Gay Street, Room 412, 
Baltimore, Maryland 21202-4022, ATTN: Hearing Docket Clerk.
    (c) Extension of Time. The ALJ may grant an extension of the time 
limits described in this section for good cause shown. A request for an 
extension of time must be in writing and be received by the ALJ within 
a reasonable time before the due date to be extended; or an applicant 
may request an extension after the expiration of a due date by sending 
a written request describing why the failure to file within the time 
limits was excusable. This paragraph does not apply to time limits set 
by the administrative law judge during the hearing.
    (d) Duties of the Administrative Law Judge. The ALJ may:
    (1) Receive information and evidence presented to TSA in the 
request for a waiver under 49 CFR 1515.7 or an appeal under 49 CFR 
1515.9.
    (2) Consider the following criteria to determine whether a request 
for an in-person hearing is warranted:
    (i) The credibility of evidence or information submitted in the 
applicant's request for a waiver; and
    (ii) Whether TSA's waiver denial was made in accordance with the 
governing regulations codified at 49 CFR part 1515 and 49 CFR part 
1572.
    (3) Give notice of and hold conferences and hearings;
    (4) Administer oaths and affirmations;
    (5) Examine witnesses;
    (6) Regulate the course of the hearing including granting 
extensions of time limits; and
    (7) Dispose of procedural motions and requests, and issue a 
decision.
    (e) Hearing. If the ALJ grants a request for a hearing, except for 
good cause shown, it will begin within 60 calendar days of the date of 
receipt of the request for hearing. The hearing is a limited discovery 
proceeding and is conducted as follows:
    (1) If applicable and upon request, TSA will provide to the 
applicant requesting a review an unclassified summary of classified 
evidence upon which the denial of the waiver or Final Determination was 
based.
    (i) TSA will not disclose to the applicant, or the applicant's 
counsel, classified information, as defined in E.O. 12968 section 
1.1(d).
    (ii) TSA reserves the right not to disclose any other information 
or material not warranting disclosure or protected from disclosure by 
law or regulation.
    (2) The applicant may present the case by oral testimony, 
documentary, or demonstrative evidence, submit rebuttal evidence, and 
conduct cross-examination, as permitted by the ALJ. Oral testimony is 
limited to the evidence or information that was presented to TSA in the 
request for a waiver or during the appeal. The Federal Rules of 
Evidence may serve as guidance, but are not binding.
    (3) The ALJ will review any classified information on an ex parte, 
in camera basis, and may consider such information in rendering a 
decision if the information appears to be material and relevant.
    (4) The standard of proof is substantial evidence on the record.
    (5) The parties may submit proposed findings of fact and 
conclusions of law.
    (6) If the applicant fails to appear, the ALJ may issue a default 
judgment.
    (7) A verbatim transcript will be made of the hearing and will be 
provided upon request at the expense of the requesting party. In cases 
in which classified or otherwise protected evidence is received, the 
transcript may require redaction of the classified or otherwise 
protected information.
    (8) The hearing will be held at TSA's Headquarters building or, on 
request of a party, at an alternate location selected by the 
administrative law judge for good cause shown.
    (f) Decision of the Administrative Law Judge. (1) The record is 
closed once the certified transcript and all documents and materials 
have been submitted for the record.
    (2) The ALJ issues an unclassified written decision to the 
applicant no later than 30 calendar days from the close of the record 
and serves the decision on the parties. The ALJ may issue a classified 
decision to TSA.
    (3) The ALJ's decision may be appealed by either party to the TSA 
Final Decision Maker in accordance with paragraph (g).
    (i) In the case of review of a waiver denial, unless appealed to 
the TSA Final Decision Maker, if the ALJ upholds the denial of the 
applicant's request for waiver, TSA will issue a Final Order Denying a 
Waiver to the applicant.
    (ii) In the case of review of a waiver denial, unless appealed to 
the TSA Final Decision Maker, if the ALJ reverses the denial of the 
applicant's request for waiver, TSA will issue a Final Order granting a 
waiver to the applicant; and
    (A) In the case of an HME, send a Determination of No Security 
Threat to the licensing State.
    (B) In the case applicant for a TWIC, send a Determination of No 
Security Threat to the Coast Guard.
    (C) In the case of an air cargo worker, send a Determination of No 
Security Threat to the operator.
    (iii) In the case of review of an appeal under 49 CFR 1515.9, 
unless appealed to the TSA Final Decision Maker, if the ALJ determines 
that the applicant poses a security threat, TSA will issue a Final 
Order of Threat Assessment to the applicant.
    (iv) In the case of review of an appeal under 49 CFR 1515.9, unless 
appealed to the TSA Final Decision Maker, if the ALJ determines that 
the applicant does not pose a security threat, TSA will issue a 
Withdrawal of the Final Determination to the applicant, and to the 
applicant's employer where applicable.
    (g) Review by the TSA Final Decision Maker. (1) Either party may 
request that the TSA Final Decision Maker review the ALJ's decision by 
serving the request no later than 30 calendar days after the date of 
service of the decision of the ALJ.
    (i) The request must be in writing, served on the other party, and 
may only address whether the decision is supported by substantial 
evidence on the record.
    (ii) No later than 30 calendar days after receipt of the request, 
the other party may file a response.
    (2) The ALJ will provide the TSA Final Decision Maker with a 
certified transcript of the hearing and all unclassified documents and 
material submitted for the record. TSA will

[[Page 3592]]

provide any classified materials previously submitted.
    (3) No later than 60 calendar days after receipt of the request, or 
if the other party files a response, 30 calendar days after receipt of 
the response, or such longer period as may be required, the TSA Final 
Decision Maker issues an unclassified decision and serves the decision 
on the parties. The TSA Final Decision Maker may issue a classified 
opinion to TSA, if applicable. The decision of the TSA Final Decision 
Maker is a final agency order.
    (i) In the case of review of a waiver denial, if the TSA Final 
Decision Maker upholds the denial of the applicant's request for 
waiver, TSA issues a Final Order Denying a Waiver to the applicant.
    (ii) In the case of review of a waiver denial, if the TSA Final 
Decision Maker reverses the denial of the applicant's request for 
waiver, TSA will grant the waiver; and
    (A) In the case of an HME, send a Determination of No Security 
Threat to the applicant and to the licensing State.
    (B) In the case of a TWIC, send a Determination of No Security 
Threat to the applicant and to the Coast Guard.
    (C) In the case of an air cargo worker, send a Determination of No 
Security Threat to the applicant and the operator.
    (iii) In the case of review of an appeal under 49 CFR 1515.9, if 
the TSA Final Decision Maker determines that the applicant poses a 
security threat, TSA will issue a Final Order of Threat Assessment to 
the applicant.
    (iv) In the case of review of an appeal under 49 CFR 1515.9, if the 
TSA Final Decision Maker determines that the applicant does not pose a 
security threat, TSA will issue a Withdrawal of the Final Determination 
to the applicant, and to the applicant's employer where applicable.
    (h) Judicial Review of a Final Order Denying a Waiver. A person may 
seek judicial review of a final order of the TSA Final Decision Maker 
as provided in 49 U.S.C. 46110.

0
52. Revise subpart C, part 1540 to read as follows:
Subpart C--Security Threat Assessments
Sec.
1540.201 Applicability and terms used in this subpart.
1540.203 Operator responsibilities.
1540.205 Procedures for security threat assessment.
1540.207 [Reserved]
1540.209 Security threat assessment fee.

Subpart C--Security Threat Assessments


Sec.  1540.201  Applicability and terms used in this subpart.

    (a) This subpart includes the procedures that certain aircraft 
operators, foreign air carriers, and indirect air carriers must use to 
have security threat assessments done on certain individuals pursuant 
to 49 CFR 1544.228, 1546.213, 1548.7, 1548.15, and 1548.16. This 
subpart applies to the following:
    (1) Each aircraft operator operating under a full program or full 
all-cargo program described in 49 CFR 1544.101(a) or (h).
    (2) Each foreign air carrier operating under a program described in 
49 CFR 1546.101(a), (b), or (e).
    (3) Each indirect air carrier operating under a security program 
described in 49 CFR part 1548.
    (4) Each individual with, or applying for, unescorted access to 
cargo under one of the programs described in (a)(1) through (a)(3) of 
this section.
    (5) Each proprietor, general partner, officer, director, or owner 
of an indirect air carrier as described in 49 CFR 1548.16.
    (b) For purposes of this subpart--
    Applicant means the individuals listed in paragraph (a)(4) and 
(a)(5) of this section.
    Operator means an aircraft operator, foreign air carrier, and 
indirect air carrier listed in paragraphs (a)(1) through (a)(3) of this 
section.
    (c) An applicant poses a security threat under this subpart when 
TSA determines that he or she is known to pose or suspected of posing a 
threat--
    (1) To national security;
    (2) To transportation security; or
    (3) Of terrorism.


Sec.  1540.203  Operator responsibilities.

    (a) Each operator subject to this subpart must ensure that each 
applicant described in Sec.  1540.201(a)(4) and (a)(5) completes the 
Security Threat Assessment described in this section.
    (b) Each operator must:
    (1) Authenticate the identity of the applicant by--
    (i) Reviewing two forms of identification, one of which must be a 
government-issued picture identification; or
    (ii) Other means approved by TSA.
    (2) Submit to TSA a Security Threat Assessment application for each 
applicant that is signed by the applicant and that includes:
    (i) Legal name, including first, middle, and last; any applicable 
suffix; and any other names used previously.
    (ii) Current mailing address, including residential address if it 
differs from the current mailing address, and all other residential 
addresses for the previous five years, and e-mail address, if the 
individual has an e-mail address.
    (iii) Date and place of birth.
    (iv) Social security number (submission is voluntary, although 
failure to provide it may delay or prevent completion of the threat 
assessment).
    (v) Gender.
    (vi) Country of citizenship, and if naturalized in the United 
States, date of naturalization and certificate number.
    (vii) Alien registration number, if applicable.
    (viii) The following statement reading:

    Privacy Act Notice: Authority: The authority for collecting this 
information is 49 U.S.C. 114, 40113, and 49 U.S.C. 5103a. Purpose: 
This information is needed to verify your identity and to conduct a 
Security Threat Assessment to evaluate your suitability for 
completing the functions required by this position. Failure to 
furnish your SSN may result in delays in processing your 
application, but will not prevent completion of your Security Threat 
Assessment. Furnishing the other information is also voluntary; 
however, failure to provide it may delay or prevent the completion 
of your Security Threat Assessment, without which you may not be 
granted authorization to have unescorted access to air cargo subject 
to TSA security requirements. Routine Uses: Routine uses of this 
information include disclosure to TSA contractors or other agents 
who are providing services relating to the Security Threat 
Assessments; to appropriate governmental agencies for law 
enforcement or security purposes, or in the interests of national 
security; and to foreign and international governmental authorities 
in accordance with law and international agreement. For further 
information, please consult DHS/TSA 002 Transportation Security 
Threat Assessment System.
    The information I have provided on this application is true, 
complete, and correct to the best of my knowledge and belief and is 
provided in good faith. I understand that a knowing and willful 
false statement, or an omission of a material fact, on this 
application can be punished by fine or imprisonment or both (see 
section 1001 of Title 18 United States Code), and may be grounds for 
denial of authorization or in the case of parties regulated under 
this section, removal of authorization to operate under this 
chapter, if applicable.

    (3) Retain the applicant's signed Security Threat Assessment 
application, and any communications with TSA regarding the applicant's 
application, for 180 days following the end of the applicant's service 
to the operator.
    (c) Records under this section may include electronic documents 
with electronic signature or other means of

[[Page 3593]]

personal authentication, where accepted by TSA.


Sec.  1540.205  Procedures for security threat assessment.

    (a) Contents of security threat assessment. The security threat 
assessment TSA conducts includes an intelligence-related check and a 
final disposition.
    (b) Intelligence-related check. To conduct an intelligence-related 
check, TSA completes the following procedures:
    (1) Reviews the applicant information required in 49 CFR 
1540.203(b);
    (2) Searches domestic and international Government databases to 
determine if an applicant meets the requirements of 49 CFR 1540.201(c) 
or to confirm an applicant's identity; and
    (3) Adjudicates the results in accordance with 49 CFR 1540.201(c).
    (c) Final disposition. Following completion of the procedures 
described in paragraph (b), the following procedures apply, as 
appropriate:
    (1) TSA serves a Determination of No Security Threat on the 
applicant and the operator, if TSA determines that the applicant meets 
the security threat assessment standards in 49 CFR 1540.201(c).
    (2) TSA serves an Initial Determination of Threat Assessment on the 
applicant and the operator, if TSA determines that the applicant does 
not meet the security threat assessment standards in 49 CFR 
1540.201(c). The Initial Determination of Threat Assessment includes--
    (i) A statement that TSA has determined that the applicant poses a 
security threat;
    (ii) The basis for the determination;
    (iii) Information about how the applicant may appeal the 
determination, as described in 49 CFR 1515.9; and
    (iv) A statement that if the applicant chooses not to appeal TSA's 
determination within 60 days of receipt of the Initial Determination, 
or does not request an extension of time within 60 days of the Initial 
Determination of Threat Assessment in order to file an appeal, the 
Initial Determination becomes a Final Determination of Security Threat 
Assessment.
    (3) If the applicant does not appeal the Initial Determination of 
Threat Assessment, TSA serves a Final Determination of Threat 
Assessment on the operator and the applicant.
    (e) Withdrawal by TSA. TSA serves a Withdrawal of the Initial 
Determination of Threat Assessment on the individual and a 
Determination of No Security Threat on the operator, if the appeal 
results in a determination that the individual does not pose a security 
threat.


Sec.  1540.207  [Reserved].


Sec.  1540.209  Security threat assessment fee.

    (a) Imposition of fees. The fee of $28 is required for TSA to 
conduct a security threat assessment for an applicant.
    (b) Remittance of fees. (1) The fee required under this subpart 
must be remitted to TSA, in a form and manner acceptable to TSA, each 
time the applicant or an aircraft operator, foreign air carrier, or 
indirect air carrier submits the information required under Sec.  
1540.203 to TSA.
    (2) Fees remitted to TSA under this subpart must be payable to the 
''Transportation Security Administration'' in U.S. currency and drawn 
on a U.S. bank.
    (3) TSA will not issue any fee refunds, unless a fee was paid in 
error.

 Subchapter D--Maritime and Land Transportation Security

0
53. Revise part 1570 to read as follows:

PART 1570--GENERAL RULES

Sec.
1570.1 Scope.
1570.3 Terms used in this subchapter.
1570.5 Fraud and intentional falsification of records.
1570.7 Fraudulent use or manufacture; responsibilities of persons.
1570.9 Inspection of credential.
1570.11 Compliance, inspection, and enforcement.

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


Sec.  1570.1  Scope.

    This part applies to any person involved in land or maritime 
transportation as specified in this subchapter.


Sec.  1570.3  Terms used in this subchapter.

    For purposes of this subchapter:
    Adjudicate means to make an administrative determination of whether 
an applicant meets the standards in this subchapter, based on the 
merits of the issues raised.
    Alien means any person not a citizen or national of the United 
States.
    Alien registration number means the number issued by the U.S. 
Department of Homeland Security to an individual when he or she becomes 
a lawful permanent resident of the United States or attains other 
lawful, non-citizen status.
    Applicant means a person who has applied for one of the security 
threat assessments identified in this subchapter.
    Assistant Administrator for Threat Assessment and Credentialing 
(Assistant Administrator) means the officer designated by the Assistant 
Secretary to administer the appeal and waiver programs described in 
this part, except where the Assistant Secretary is specifically 
designated in this part to administer the appeal or waiver program. The 
Assistant Administrator may appoint a designee to assume his or her 
duties.
    Assistant Secretary means Assistant Secretary for Homeland 
Security, Transportation Security Administration (Assistant Secretary), 
the highest ranking TSA official, or his or her designee, and who is 
responsible for making the final determination on the appeal of an 
intelligence-related check under this part.
    Commercial drivers license (CDL) is used as defined in 49 CFR 
383.5.
    Convicted means any plea of guilty or nolo contendere, or any 
finding of guilt, except when the finding of guilt is subsequently 
overturned on appeal, pardoned, or expunged. For purposes of this 
subchapter, a conviction is expunged when the conviction is removed 
from the individual's criminal history record and there are no legal 
disabilities or restrictions associated with the expunged conviction, 
other than the fact that the conviction may be used for sentencing 
purposes for subsequent convictions. In addition, where an individual 
is allowed to withdraw an original plea of guilty or nolo contendere 
and enter a plea of not guilty and the case is subsequently dismissed, 
the individual is no longer considered to have a conviction for 
purposes of this subchapter.
    Determination of No Security Threat means an administrative 
determination by TSA that an individual does not pose a security threat 
warranting denial of an HME or a TWIC.
    Federal Maritime Security Coordinator (FMSC) has the same meaning 
as defined in 46 U.S.C. 70103(a)(2)(G); is the Captain of the Port 
(COTP) exercising authority for the COTP zones described in 33 CFR part 
3, and is the Port Facility Security Officer as described in the 
International Ship and Port Facility Security (ISPS) Code, part A.
    Final Determination of Threat Assessment means a final 
administrative determination by TSA, including the resolution of 
related appeals, that an individual poses a security threat warranting 
denial of an HME or a TWIC.

[[Page 3594]]

    Hazardous materials endorsement (HME) means the authorization for 
an individual to transport hazardous materials in commerce, an 
indication of which must be on the individual's commercial driver's 
license, as provided in the Federal Motor Carrier Safety Administration 
(FMCSA) regulations in 49 CFR part 383.
    Imprisoned or imprisonment means confined to a prison, jail, or 
institution for the criminally insane, on a full-time basis, pursuant 
to a sentence imposed as the result of a criminal conviction or finding 
of not guilty by reason of insanity. Time spent confined or restricted 
to a half-way house, treatment facility, or similar institution, 
pursuant to a sentence imposed as the result of a criminal conviction 
or finding of not guilty by reason of insanity, does not constitute 
imprisonment for purposes of this rule.
    Incarceration means confined or otherwise restricted to a jail-type 
institution, half-way house, treatment facility, or another 
institution, on a full or part-time basis, pursuant to a sentence 
imposed as the result of a criminal conviction or finding of not guilty 
by reason of insanity.
    Initial Determination of Threat Assessment means an initial 
administrative determination by TSA that an individual poses pose a 
security threat warranting denial of an HME or a TWIC.
    Initial Determination of Threat Assessment and Immediate Revocation 
means an initial administrative determination that an individual poses 
a security threat that warrants immediate revocation of an HME or 
invalidation of a TWIC. In the case of an HME, the State must 
immediately revoke the HME if TSA issues an Initial Determination of 
Threat Assessment and Immediate Revocation. In the case of a TWIC, TSA 
invalidates the TWIC when TSA issues an Initial Determination of Threat 
Assessment and Immediate Revocation.
    Invalidate means the action TSA takes to make a credential 
inoperative when it is reported as lost, stolen, damaged, no longer 
needed, or when TSA determines an applicant does not meet the security 
threat assessment standards of 49 CFR part 1572.
    Lawful permanent resident means an alien lawfully admitted for 
permanent residence, as defined in 8 U.S.C. 1101(a)(20).
    Maritime facility has the same meaning as ``facility'' together 
with ``OCS facility'' (Outer Continental Shelf facility), as defined in 
33 CFR 101.105.
    Mental health facility means a mental institution, mental hospital, 
sanitarium, psychiatric facility, and any other facility that provides 
diagnoses by licensed professionals of mental retardation or mental 
illness, including a psychiatric ward in a general hospital.
    National of the United States means a citizen of the United States, 
or a person who, though not a citizen, owes permanent allegiance to the 
United States, as defined in 8 U.S.C. 1101(a)(22), and includes 
American Samoa and Swains Island.
    Owner/operator with respect to a maritime facility or a vessel has 
the same meaning as defined in 33 CFR 101.105.
    Revocation means the termination, deactivation, rescission, 
invalidation, cancellation, or withdrawal of the privileges and duties 
conferred by an HME or TWIC, when TSA determines an applicant does not 
meet the security threat assessment standards of 49 CFR part 1572.
    Secure area means the area on board a vessel or at a facility or 
outer continental shelf facility, over which the owner/operator has 
implemented security measures for access control, as defined by a Coast 
Guard approved security plan. It does not include passenger access 
areas or public access areas, as those terms are defined in 33 CFR 
104.106 and 105.106 respectively. Vessels operating under the waivers 
provided for at 46 U.S.C. 8103(b)(3)(A) or (B) have no secure areas. 
Facilities subject to 33 CFR chapter I, subchapter H, part 105 may, 
with approval of the Coast Guard, designate 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 
as their secure areas.
    Security threat means an individual whom TSA determines or suspects 
of posing a threat to national security; to transportation security; or 
of terrorism.
    Sensitive security information (SSI) means information that is 
described in, and must be managed in accordance with, 49 CFR part 1520.
    State means a State of the United States and the District of 
Columbia.
    Transportation Worker Identification Credential (TWIC) means a 
Federal biometric credential, issued to an individual, when TSA 
determines that the individual does not pose a security threat.
    Withdrawal of Initial Determination of Threat Assessment is the 
document that TSA issues after issuing an Initial Determination of 
Security Threat, when TSA determines that an individual does not pose a 
security threat that warrants denial of an HME or TWIC.


Sec.  1570.5  Fraud and intentional falsification of records.

    No person may make, cause to be made, attempt, or cause to attempt 
any of the following:
    (a) Any fraudulent or intentionally false statement in any record 
or report that is kept, made, or used to show compliance with the 
subchapter, or exercise any privileges under this subchapter.
    (b) Any reproduction or alteration, for fraudulent purpose, of any 
record, report, security program, access medium, or identification 
medium issued under this subchapter or pursuant to standards in this 
subchapter.


Sec.  1570.7  Fraudulent use or manufacture; responsibilities of 
persons.

    (a) No person may use or attempt to use a credential, security 
threat assessment, access control medium, or identification medium 
issued or conducted under this subchapter that was issued or conducted 
for another person.
    (b) No person may make, produce, use or attempt to use a false or 
fraudulently created access control medium, identification medium or 
security threat assessment issued or conducted under this subchapter.
    (c) No person may tamper or interfere with, compromise, modify, 
attempt to circumvent, or circumvent TWIC access control procedures.
    (d) No person may cause or attempt to cause another person to 
violate paragraphs (a)-(c) of this section.


Sec.  1570.9  Inspection of credential.

    (a) Each person who has been issued or possesses a TWIC must 
present the TWIC for inspection upon a request from TSA, the Coast 
Guard, or other authorized DHS representative; an authorized 
representative of the National Transportation Safety Board; or a 
Federal, State, or local law enforcement officer.
    (b) Each person who has been issued or who possesses a TWIC must 
allow his or her TWIC to be read by a reader and must submit his or her 
reference biometric, such as a fingerprint, and any other required 
information, such as a PIN, to the reader, upon a request from TSA, the 
Coast Guard, other authorized DHS representative; or a Federal, State, 
or local law enforcement officer.


Sec.  1570.11  Compliance, inspection, and enforcement.

    (a) Each owner/operator must allow TSA, at any time or place, to 
make any inspections or tests, including copying records, to determine 
compliance of an owner/operator with--

[[Page 3595]]

    (1) This subchapter and part 1520 of this chapter; and
    (2) 46 U.S.C. 70105 and 49 U.S.C. 114.
    (b) At the request of TSA, each owner/operator must provide 
evidence of compliance with this subchapter and part 1520 of this 
chapter, including copies of records.

0
54. Revise part 1572 to read as follows:

PART 1572--CREDENTIALING AND SECURITY THREAT ASSESSMENTS

Subpart A--Procedures and General Standards
Sec.
1572.1 Applicability.
1572.3 Scope.
1572.5 Standards for security threat assessments.
1572.7 [Reserved]
1572.9 Applicant information required for HME security threat 
assessment.
1572.11 Applicant responsibilities for HME security threat 
assessment.
1572.13 State responsibilities for issuance of hazardous materials 
endorsement.
1572.15 Procedures for HME security threat assessment.
1572.17 Applicant information required for TWIC security threat 
assessment.
1572.19 Applicant responsibilities for a TWIC security threat 
assessment.
1572.21 Procedures for TWIC security threat assessment.
1572.23 TWIC expiration.
1572.24-1572.40 [Reserved]
Subpart B--Qualification Standards for Security Threat Assessments
1572.101 Scope.
1572.103 Disqualifying criminal offenses.
1572.105 Immigration status.
1572.107 Other analyses.
1572.109 Mental capacity.
1572.111-1572.139 [Reserved]
Subpart C--Transportation of Hazardous Materials From Canada or Mexico 
To and Within the United States by Land Modes
1572.201 Transportation of hazardous materials via commercial motor 
vehicle from Canada or Mexico to and within the United States.
1572.203 Transportation of explosives from Canada to the United 
States via railroad carrier.
Subpart D--[Reserved]
Subpart E--Fees for Security Threat Assessments for Hazmat Drivers
1572.400 Scope and definitions.
1572.401 Fee collection options.
1572.403 Procedures for collection by States.
1572.405 Procedures for collection by TSA.
Subpart F--Fees for Security Threat Assessments for Transportation 
Worker Identification Credential (TWIC)
1572.500 Scope.
1572.501 Fee collection.

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

Subpart A--Procedures and General Standards


Sec.  1572.1  Applicability.

    This part establishes regulations for credentialing and security 
threat assessments for certain maritime and land transportation 
workers.


Sec.  1572.3  Scope.

    This part applies to--
    (a) State agencies responsible for issuing a hazardous materials 
endorsement (HME); and
    (b) An applicant who--
    (1) Is qualified to hold a commercial driver's license under 49 CFR 
parts 383 and 384, and is applying to obtain, renew, or transfer an 
HME; or
    (2) Is applying to obtain or renew a TWIC in accordance with 33 CFR 
parts 104 through 106 or 46 CFR part 10.


Sec.  1572.5  Standards for security threat assessments.

    (a) Standards. TSA determines that an applicant poses a security 
threat warranting denial of an HME or TWIC, if--
    (1) The applicant has a disqualifying criminal offense described in 
49 CFR 1572.103;
    (2) The applicant does not meet the immigration status requirements 
described in 49 CFR 1572.105;
    (3) TSA conducts the analyses described in 49 CFR 1572.107 and 
determines that the applicant poses a security threat; or
    (4) The applicant has been adjudicated as lacking mental capacity 
or committed to a mental health facility, as described in 49 CFR 
1572.109.
    (b) Immediate Revocation/Invalidation. TSA may invalidate a TWIC or 
direct a State to revoke an HME immediately, if TSA determines during 
the security threat assessment that an applicant poses an immediate 
threat to transportation security, national security, or of terrorism.
    (c) Violation of FMCSA Standards. The regulations of the Federal 
Motor Carrier Safety Administration (FMCSA) provide that an applicant 
is disqualified from operating a commercial motor vehicle for specified 
periods, if he or she has an offense that is listed in the FMCSA rules 
at 49 CFR 383.51. If records indicate that an applicant has committed 
an offense that would disqualify the applicant from operating a 
commercial motor vehicle under 49 CFR 383.51, TSA will not issue a 
Determination of No Security Threat until the State or the FMCSA 
determine that the applicant is not disqualified under that section.
    (d) Waiver. In accordance with the requirements of Sec.  1515.7, 
applicants may apply for a waiver of certain security threat assessment 
standards.
    (e) Comparability of Other Security Threat Assessment Standards. 
TSA may determine that security threat assessments conducted by other 
governmental agencies are comparable to the threat assessment described 
in this part, which TSA conducts for HME and TWIC applicants.
    (1) In making a comparability determination, TSA will consider--
    (i) The minimum standards used for the security threat assessment;
    (ii) The frequency of the threat assessment;
    (iii) The date of the most recent threat assessment; and
    (iv) Whether the threat assessment includes biometric 
identification and a biometric credential.
    (2) To apply for a comparability determination, the agency seeking 
the determination must contact the Assistant Program Manager, Attn: 
Federal Agency Comparability Check, Hazmat Threat Assessment Program, 
Transportation Security Administration, 601 South 12th Street, 
Arlington, VA 22202-4220.
    (3) TSA will notify the public when a comparability determination 
is made.
    (4) An applicant, who has completed a security threat assessment 
that is determined to be comparable under this section to the threat 
assessment described in this part, must complete the enrollment process 
and provide biometric information to obtain a TWIC, if the applicant 
seeks unescorted access to a secure area of a vessel or facility. The 
applicant must pay the fee listed in 49 CFR 1572.503 for information 
collection/credential issuance.
    (5) TSA has determined that the security threat assessment for an 
HME under this part is comparable to the security threat assessment for 
TWIC.
    (6) TSA has determined that the security threat assessment for a 
FAST card, under the Free and Secure Trade program administered by U.S. 
Customs and Border Protection, is comparable to the security threat 
assessment described in this part.


Sec.  1572.7  [Reserved].


Sec.  1572.9  Applicant information required for HME security threat 
assessment.

    An applicant must supply the information required in this section, 
in a form acceptable to TSA, when applying to obtain or renew an HME. 
When applying to transfer an HME from

[[Page 3596]]

one State to another, 49 CFR 1572.13(e) applies.
    (a) Except as provided in (a)(12) through (16), the applicant must 
provide the following identifying information:
    (1) Legal name, including first, middle, and last; any applicable 
suffix; and any other name used previously.
    (2) Current and previous mailing address, current residential 
address if it differs from the current mailing address, and e-mail 
address if available. If the applicant prefers to receive 
correspondence and notification via e-mail, the applicant should so 
state.
    (3) Date of birth.
    (4) Gender.
    (5) Height, weight, hair color, and eye color.
    (6) City, state, and country of birth.
    (7) Immigration status and, if the applicant is a naturalized 
citizen of the United States, the date of naturalization.
    (8) Alien registration number, if applicable.
    (9) The State of application, CDL number, and type of HME(s) held.
    (10) Name, telephone number, facsimile number, and address of the 
applicant's current employer(s), if the applicant's work for the 
employer(s) requires an HME. If the applicant's current employer is the 
U.S. military service, include branch of the service.
    (11) Whether the applicant is applying to obtain, renew, or 
transfer an HME or for a waiver.
    (12) Social security number. Providing the social security number 
is voluntary; however, failure to provide it will delay and may prevent 
completion of the threat assessment.
    (13) Passport number. This information is voluntary and may 
expedite the adjudication process for applicants who are U.S. citizens 
born abroad.
    (14) Department of State Consular Report of Birth Abroad. This 
information is voluntary and may expedite the adjudication process for 
applicants who are U.S. citizens born abroad.
    (15) Whether the applicant has previously completed a TSA threat 
assessment, and if so the date and program for which it was completed. 
This information is voluntary and may expedite the adjudication process 
for applicants who have completed a TSA security threat assessment.
    (16) Whether the applicant currently holds a federal security 
clearance, and if so, the date of and agency for which the clearance 
was performed. This information is voluntary and may expedite the 
adjudication process for applicants who have completed a federal 
security threat assessment.
    (b) The applicant must provide a statement, signature, and date of 
signature that he or she--
    (1) Was not convicted, or found not guilty by reason of insanity, 
of a disqualifying crime listed in 49 CFR 1572.103(b), in a civilian or 
military jurisdiction, during the seven years before the date of the 
application, or is applying for a waiver;
    (2) Was not released from incarceration, in a civilian or military 
jurisdiction, for committing a disqualifying crime listed in 49 CFR 
1572.103(b), during the five years before the date of the application, 
or is applying for a waiver;
    (3) Is not wanted, or under indictment, in a civilian or military 
jurisdiction, for a disqualifying criminal offense identified in 49 CFR 
1572.103, or is applying for a waiver;
    (4) Was not convicted, or found not guilty by reason of insanity, 
of a disqualifying criminal offense identified in 49 CFR 1572.103(a), 
in a civilian or military jurisdiction, or is applying for a waiver;
    (5) Has not been adjudicated as lacking mental capacity or 
committed to a mental health facility involuntarily or is applying for 
a waiver;
    (6) Meets the immigration status requirements described in 49 CFR 
1572.105;
    (7) Has or has not served in the military, and if so, the branch in 
which he or she served, the date of discharge, and the type of 
discharge; and
    (8) Has been informed that Federal regulations, under 49 CFR 
1572.11, impose a continuing obligation on the HME holder to disclose 
to the State if he or she is convicted, or found not guilty by reason 
of insanity, of a disqualifying crime, adjudicated as lacking mental 
capacity, or committed to a mental health facility.
    (c) The applicant must certify and date receipt the following 
statement:

    Privacy Act Notice: Authority: The authority for collecting this 
information is 49 U.S.C. 114, 40113, and 5103a. Purpose: This 
information is needed to verify your identity and to conduct a 
security threat assessment to evaluate your suitability for a 
hazardous materials endorsement for a commercial driver's license. 
Furnishing this information, including your SSN or alien 
registration number, is voluntary; however, failure to provide it 
will delay and may prevent completion of your security threat 
assessment. Routine Uses: Routine uses of this information include 
disclosure to the FBI to retrieve your criminal history record; to 
TSA contractors or other agents who are providing services relating 
to the security threat assessments; to appropriate governmental 
agencies for licensing, law enforcement, or security purposes, or in 
the interests of national security; and to foreign and international 
governmental authorities in accordance with law and international 
agreement.

    (d) The applicant must certify and date receipt the following 
statement, immediately before the signature line:

    The information I have provided on this application is true, 
complete, and correct, to the best of my knowledge and belief, and 
is provided in good faith. I understand that a knowing and willful 
false statement, or an omission of a material fact on this 
application can be punished by fine or imprisonment or both (See 
section 1001 of Title 18 United States Code), and may be grounds for 
denial of a hazardous materials endorsement.

    (e) The applicant must certify the following statement in writing:

    I acknowledge that if the Transportation Security Administration 
determines that I pose a security threat, my employer, as listed on 
this application, may be notified. If TSA or other law enforcement 
agency becomes aware of an imminent threat to a maritime facility or 
vessel, TSA may provide limited information necessary to reduce the 
risk of injury or damage to the facility or vessel.


Sec.  1572.11  Applicant responsibilities for HME security threat 
assessment.

    (a) Surrender of HME. If an individual is disqualified from holding 
an HME under 49 CFR 1572.5(c), he or she must surrender the HME to the 
licensing State. Failure to surrender the HME to the State may result 
in immediate revocation under 49 CFR 1572.13(a) and/or civil penalties.
    (b) Continuing responsibilities. An individual who holds an HME 
must surrender the HME as required in paragraph (a) of this section 
within 24 hours, if the individual--
    (1) Is convicted of, wanted, under indictment or complaint, or 
found not guilty by reason of insanity, in a civilian or military 
jurisdiction, for a disqualifying criminal offense identified in 49 CFR 
1572.103; or
    (2) Is adjudicated as lacking mental capacity, or committed to a 
mental health facility, as described in 49 CFR 1572.109; or
    (3) Renounces or loses U.S. citizenship or status as a lawful 
permanent resident; or
    (4) Violates his or her immigration status, and/or is ordered 
removed from the United States.
    (c) Submission of fingerprints and information. (1) An HME 
applicant must submit fingerprints and the information required in 49 
CFR 1572.9, in a form acceptable to TSA, when so notified by the State, 
or when the applicant applies to obtain or renew an HME. The procedures 
outlined in 49 CFR 1572.13(e) apply to HME transfers.

[[Page 3597]]

    (2) When submitting fingerprints and the information required in 49 
CFR 1572.9, the fee described in 49 CFR 1572.503 must be remitted to 
TSA.


Sec.  1572.13  State responsibilities for issuance of hazardous 
materials endorsement.

    Each State must revoke an individual's HME immediately, if TSA 
informs the State that the individual does not meet the standards for 
security threat assessment in 49 CFR 1572.5 and issues an Initial 
Determination of Threat Assessment and Immediate Revocation.
    (a) No State may issue or renew an HME for a CDL, unless the State 
receives a Determination of No Security Threat from TSA.
    (b) Each State must notify each individual holding an HME issued by 
that State that he or she will be subject to the security threat 
assessment described in this part as part of an application for renewal 
of the HME, at least 60 days prior to the expiration date of the 
individual's HME. The notice must inform the individual that he or she 
may initiate the security threat assessment required by this section at 
any time after receiving the notice, but no later than 60 days before 
the expiration date of the individual's HME.
    (c) The State that issued an HME may extend the expiration date of 
the HME for 90 days, if TSA has not provided a Determination of No 
Security Threat or a Final Determination of Threat Assessment before 
the expiration date. Any additional extension must be approved in 
advance by TSA.
    (d) Within 15 days of receipt of a Determination of No Security 
Threat or Final Determination of Threat Assessment from TSA, the State 
must--
    (1) Update the applicant's permanent record to reflect:
    (i) The results of the security threat assessment;
    (ii) The issuance or denial of an HME; and
    (iii) The new expiration date of the HME.
    (2) Notify the Commercial Drivers License Information System 
(CDLIS) operator of the results of the security threat assessment.
    (3) Revoke or deny the applicant's HME if TSA serves the State with 
a Final Determination of Threat Assessment.
    (e) For applicants who apply to transfer an existing HME from one 
State to another, the second State will not require the applicant to 
undergo a new security threat assessment until the security threat 
assessment renewal period established in the preceding issuing State, 
not to exceed five years, expires.
    (f) A State that is not using TSA's agent to conduct enrollment for 
the security threat assessment must retain the application and 
information required in 49 CFR 1572.9, for at least one year, in paper 
or electronic form.


Sec.  1572.15  Procedures for HME security threat assessment.

    (a) Contents of security threat assessment. The security threat 
assessment TSA completes includes a fingerprint-based criminal history 
records check (CHRC), an intelligence-related background check, and a 
final disposition.
    (b) Fingerprint-based check. In order to conduct a fingerprint-
based CHRC, the following procedures must be completed:
    (1) The State notifies the applicant that he or she will be subject 
to the security threat assessment at least 60 days prior to the 
expiration of the applicant's HME, and that the applicant must begin 
the security threat assessment no later than 30 days before the date of 
the expiration of the HME.
    (2) Where the State elects to collect fingerprints and applicant 
information, the State--
    (i) Collects fingerprints and applicant information required in 49 
CFR 1572.9;
    (ii) Provides the applicant information to TSA electronically, 
unless otherwise authorized by TSA;
    (iii) Transmits the fingerprints to the FBI/Criminal Justice 
Information Services (CJIS), in accordance with the FBI/CJIS 
fingerprint submission standards; and
    (iv) Retains the signed application, in paper or electronic form, 
for one year and provides it to TSA, if requested.
    (3) Where the State elects to have a TSA agent collect fingerprints 
and applicant information--
    (i) TSA provides a copy of the signed application to the State;
    (ii) The State retains the signed application, in paper or 
electronic form, for one year and provides it to TSA, if requested; and
    (iii) TSA transmits the fingerprints to the FBI/CJIS, in accordance 
with the FBI/CJIS fingerprint submission standards.
    (4) TSA receives the results from the FBI/CJIS and adjudicates the 
results of the check, in accordance with 49 CFR 1572.103 and, if 
applicable, 49 CFR 1572.107.
    (c) Intelligence-related check. To conduct an intelligence-related 
check, TSA completes the following procedures:
    (1) Reviews the applicant information required in 49 CFR 1572.9.
    (2) Searches domestic and international Government databases 
described in 49 CFR 1572.105, 1572.107, and 1572.109.
    (3) Adjudicates the results of the check in accordance with 49 CFR 
1572.103, 1572.105, 1572.107, and 1572.109.
    (d) Final disposition. Following completion of the procedures 
described in paragraphs (b) and/or (c) of this section, the following 
procedures apply, as appropriate:
    (1) TSA serves a Determination of No Security Threat on the State 
in which the applicant is authorized to hold an HME, if TSA determines 
that an applicant meets the security threat assessment standards 
described in 49 CFR 1572.5.
    (2) TSA serves an Initial Determination of Threat Assessment on the 
applicant, if TSA determines that the applicant does not meet the 
security threat assessment standards described in 49 CFR 1572.5. The 
Initial Determination of Threat Assessment includes--
    (i) A statement that TSA has determined that the applicant poses a 
security threat warranting denial of the HME;
    (ii) The basis for the determination;
    (iii) Information about how the applicant may appeal the 
determination, as described in 49 CFR 1515.5 or 1515.9, as applicable; 
and
    (iv) A statement that if the applicant chooses not to appeal TSA's 
determination within 60 days of receipt of the Initial Determination, 
or does not request an extension of time within 60 days of receipt of 
the Initial Determination in order to file an appeal, the Initial 
Determination becomes a Final Determination of Security Threat 
Assessment.
    (3) TSA serves an Initial Determination of Threat Assessment and 
Immediate Revocation on the applicant, the applicant's employer where 
appropriate, and the State, if TSA determines that the applicant does 
not meet the security threat assessment standards described in 49 CFR 
1572.5 and may pose an imminent threat to transportation or national 
security, or of terrorism. The Initial Determination of Threat 
Assessment and Immediate Revocation includes--
    (i) A statement that TSA has determined that the applicant poses a 
security threat warranting immediate revocation of an HME;
    (ii) The basis for the determination;
    (iii) Information about how the applicant may appeal the 
determination, as described in 49 CFR 1515.5(h) or 1515.9(f), as 
applicable; and
    (iv) A statement that if the applicant chooses not to appeal TSA's

[[Page 3598]]

determination within 60 days of receipt of the Initial Determination 
and Immediate Revocation, the Initial Determination and Immediate 
Revocation becomes a Final Determination of Threat Assessment.
    (4) If the applicant does not appeal the Initial Determination of 
Threat Assessment or Initial Determination of Threat Assessment and 
Immediate Revocation, TSA serves a Final Determination of Threat 
Assessment on the State in which the applicant applied for the HME, the 
applicant's employer where appropriate, and on the applicant, if the 
appeal of the Initial Determination results in a finding that the 
applicant poses a security threat.
    (5) If the applicant appeals the Initial Determination of Threat 
Assessment or the Initial Determination of Threat Assessment and 
Immediate Revocation, the procedures in 49 CFR 1515.5 or 1515.9 apply.
    (6) Applicants who do not meet certain standards in 49 CFR 
1572.103, 1572.105, or 1572.109 may seek a waiver in accordance with 49 
CFR 1515.7.


Sec.  1572.17  Applicant information required for TWIC security threat 
assessment.

    An applicant must supply the information required in this section, 
in a form acceptable to TSA, when applying to obtain or renew a TWIC.
    (a) Except as provided in (a)(12) through (16), the applicant must 
provide the following identifying information:
    (1) Legal name, including first, middle, and last; any applicable 
suffix; and any other name used previously.
    (2) Current and previous mailing address, current residential 
address if it differs from the current mailing address, and e-mail 
address if available. If the applicant wishes to receive notification 
that the TWIC is ready to be retrieved from the enrollment center via 
telephone rather than e-mail address, the applicant should state this 
and provide the correct telephone number.
    (3) Date of birth.
    (4) Gender.
    (5) Height, weight, hair color, and eye color.
    (6) City, state, and country of birth.
    (7) Immigration status, and
    (i) If the applicant is a naturalized citizen of the United States, 
the date of naturalization;
    (ii) If the applicant is present in the United States based on a 
Visa, the type of Visa, the Visa number, and the date on which it 
expires; and
    (iii) If the applicant is a commercial driver licensed in Canada 
and does not hold a FAST card, a Canadian passport.
    (8) If not a national or citizen of the United States, the alien 
registration number and/or the number assigned to the applicant on the 
U.S. Customs and Border Protection Arrival-Departure Record, Form I-94.
    (9) Except as described in paragraph (a)(9)(i) of this section, the 
reason that the applicant requires a TWIC, including, as applicable, 
the applicant's job description and the primary facility, vessel, or 
maritime port location(s) where the applicant will most likely require 
unescorted access, if known. This statement does not limit access to 
other facilities, vessels, or ports, but establishes eligibility for a 
TWIC.
    (i) Applicants who are commercial drivers licensed in Canada or 
Mexico who are applying for a TWIC in order to transport hazardous 
materials in accordance with 49 CFR 1572.201 and not to access secure 
areas of a facility or vessel, must explain this in response to the 
information requested in paragraph (a)(9) of this section.
    (10) The name, telephone number, and address of the applicant's 
current employer(s), if working for the employer requires a TWIC. If 
the applicant's current employer is the U.S. military service, include 
the branch of the service. An applicant whose current employer does not 
require possession of a TWIC, does not have a single employer, or is 
self-employed, must provide the primary vessel or port location(s) 
where the applicant requires unescorted access, if known. This 
statement does not limit access to other facilities, vessels, or ports, 
but establishes eligibility for a TWIC.
    (11) If a credentialed mariner or applying to become a credentialed 
mariner, proof of citizenship as required in 46 CFR chapter I, 
subchapter B.
    (12) Social security number. Providing the social security number 
is voluntary; however, failure to provide it will delay and may prevent 
completion of the threat assessment.
    (13) Passport number, city of issuance, date of issuance, and date 
of expiration. This information is voluntary and may expedite the 
adjudication process for applicants who are U.S. citizens born abroad.
    (14) Department of State Consular Report of Birth Abroad. This 
information is voluntary and may expedite the adjudication process for 
applicants who are U.S. citizens born abroad.
    (15) Whether the applicant has previously completed a TSA threat 
assessment, and if so the date and program for which it was completed. 
This information is voluntary and may expedite the adjudication process 
for applicants who have completed a TSA security threat assessment.
    (16) Whether the applicant currently holds a federal security 
clearance, and if so, the date of and agency for which the clearance 
was performed. This information is voluntary and may expedite the 
adjudication process for applicants who have completed a federal 
security threat assessment.
    (b) The applicant must provide a statement, signature, and date of 
signature that he or she--
    (1) Was not convicted, or found not guilty by reason of insanity, 
of a disqualifying crime listed in 49 CFR 1572.103(b), in a civilian or 
military jurisdiction, during the seven years before the date of the 
application, or is applying for a waiver;
    (2) Was not released from incarceration, in a civilian or military 
jurisdiction, for committing a disqualifying crime listed in 49 CFR 
1572.103(b), during the five years before the date of the application, 
or is applying for a waiver;
    (3) Is not wanted, or under indictment, in a civilian or military 
jurisdiction, for a disqualifying criminal offense identified in 49 CFR 
1572.103, or is applying for a waiver;
    (4) Was not convicted, or found not guilty by reason of insanity, 
of a disqualifying criminal offense identified in 49 CFR 1572.103(a), 
in a civilian or military jurisdiction, or is applying for a waiver;
    (5) Has not been adjudicated as lacking mental capacity, or 
committed to a mental health facility involuntarily, or is applying for 
a waiver;
    (6) Meets the immigration status requirements described in 49 CFR 
1572.105;
    (7) Has, or has not, served in the military, and if so, the branch 
in which he or she served, the date of discharge, and the type of 
discharge; and
    (8) Has been informed that Federal regulations under 49 CFR 1572.19 
impose a continuing obligation on the TWIC holder to disclose to TSA if 
he or she is convicted, or found not guilty by reason of insanity, of a 
disqualifying crime, adjudicated as lacking mental capacity, or 
committed to a mental health facility.
    (c) Applicants, applying to obtain or renew a TWIC, must submit 
biometric information to be used for identity verification purposes. If 
an individual cannot provide the selected biometric, TSA will collect 
an alternative biometric identifier.
    (d) The applicant must certify and date receipt the following 
statement:

    Privacy Act Notice: Authority: The authority for collecting this 
information is 49 U.S.C. 114, 40113, and 5103a. Purpose: This 
information is needed to verify your identity

[[Page 3599]]

and to conduct a security threat assessment to evaluate your 
suitability for a Transportation Worker Identification Credential. 
Furnishing this information, including your SSN or alien 
registration number, is voluntary; however, failure to provide it 
will delay and may prevent completion of your security threat 
assessment. Routine Uses: Routine uses of this information include 
disclosure to the FBI to retrieve your criminal history record; to 
TSA contractors or other agents who are providing services relating 
to the security threat assessments; to appropriate governmental 
agencies for licensing, law enforcement, or security purposes, or in 
the interests of national security; and to foreign and international 
governmental authorities in accordance with law and international 
agreement.

    (e) The applicant must certify the following statement in writing:

    As part of my employment duties, I am required to have 
unescorted access to secure areas of maritime facilities or vessels 
in which a Transportation Worker Identification Credential is 
required; I am now, or I am applying to be, a credentialed merchant 
mariner; or I am a commercial driver licensed in Canada or Mexico 
transporting hazardous materials in accordance with 49 CFR 1572.201.

    (f) The applicant must certify and date receipt the following 
statement, immediately before the signature line:

    The information I have provided on this application is true, 
complete, and correct, to the best of my knowledge and belief, and 
is provided in good faith. I understand that a knowing and willful 
false statement, or an omission of a material fact on this 
application, can be punished by fine or imprisonment or both (see 
section 1001 of Title 18 United States Code), and may be grounds for 
denial of a Transportation Worker Identification Credential.

    (g) The applicant must certify the following statement in writing:

    I acknowledge that if the Transportation Security Administration 
determines that I pose a security threat, my employer, as listed on 
this application, may be notified. If TSA or other law enforcement 
agency becomes aware of an imminent threat to a maritime facility or 
vessel, TSA may provide limited information necessary to reduce the 
risk of injury or damage to the facility or vessel.


Sec.  1572.19  Applicant responsibilities for a TWIC security threat 
assessment.

    (a) Implementation schedule. Except as provided in paragraph (b) of 
this section, applicants must provide the information required in 49 
CFR 1572.17, when so directed by the owner/operator.
    (b) Implementation schedule for certain mariners. An applicant, who 
holds a Merchant Mariner Document (MMD) issued after February 3, 2003, 
and before the March 26, 2007, or a Merchant Marine License (License) 
issued after January 13, 2006, and before March 26, 2007, must submit 
the information required in this section, but is not required to 
undergo the security threat assessment described in this part.
    (c) Surrender of TWIC. The TWIC is property of the Transportation 
Security Administration. If an individual is disqualified from holding 
a TWIC under 49 CFR 1572.5, he or she must surrender the TWIC to TSA. 
Failure to surrender the TWIC to TSA may result in immediate revocation 
under 49 CFR 1572.5(b) and/or civil penalties.
    (d) Continuing responsibilities. An individual who holds a TWIC 
must surrender the TWIC, as required in paragraph (a) of this section, 
within 24 hours if the individual--
    (1) Is convicted of, wanted, under indictment or complaint, or 
found not guilty by reason of insanity, in a civilian or military 
jurisdiction, for a disqualifying criminal offense identified in 49 CFR 
1572.103; or
    (2) Is adjudicated as lacking mental capacity or committed to a 
mental health facility, as described in 49 CFR 1572.109; or
    (3) Renounces or loses U.S. citizenship or status as a lawful 
permanent resident; or
    (4) Violates his or her immigration status and/or is ordered 
removed from the United States.
    (e) Submission of fingerprints and information. (1) TWIC applicants 
must submit fingerprints and the information required in 49 CFR 
1572.17, in a form acceptable to TSA, to obtain or renew a TWIC.
    (2) When submitting fingerprints and the information required in 49 
CFR 1572.17, the fee required in 49 CFR 1572.503 must be remitted to 
TSA.
    (f) Lost, damaged, or stolen credentials. If an individual's TWIC 
is damaged, or if a TWIC holder loses possession of his or her 
credential, he or she must notify TSA immediately.


Sec.  1572.21  Procedures for TWIC security threat assessment.

    (a) Contents of security threat assessment. The security threat 
assessment TSA conducts includes a fingerprint-based criminal history 
records check (CHRC), an intelligence-related check, and a final 
disposition.
    (b) Fingerprint-based check. The following procedures must be 
completed to conduct a fingerprint-based CHRC:
    (1) Consistent with the implementation schedule described in 49 CFR 
1572.19(a) and (b), and as required in 33 CFR 104.200, 105.200, or 
106.200, applicants are notified.
    (2) During enrollment, TSA--
    (i) Collects fingerprints, applicant information, and the fee 
required in 49 CFR 1572.17;
    (ii) Transmits the fingerprints to the FBI/CJIS in accordance with 
the FBI/CJIS fingerprint submission standards.
    (iii) Receives and adjudicates the results of the check from FBI/
CJIS, in accordance with 49 CFR 1572.103 and, if applicable, 49 CFR 
1572.107.
    (c) Intelligence-related check. To conduct an intelligence-related 
check, TSA completes the following procedures:
    (1) Reviews the applicant information required in 49 CFR 1572.17;
    (2) Searches domestic and international Government databases 
required to determine if the applicant meets the requirements of 49 CFR 
1572.105, 1572.107, and 1572.109;
    (3) Adjudicates the results of the check in accordance with 49 CFR 
1572.103, 1572.105, 1572.107, and 1572.109.
    (d) Final disposition. Following completion of the procedures 
described in paragraphs (b) and/or (c) of this section, the following 
procedures apply, as appropriate:
    (1) TSA serves a Determination of No Security Threat on the 
applicant if TSA determines that the applicant meets the security 
threat assessment standards described in 49 CFR 1572.5. In the case of 
a mariner, TSA also serves a Determination of No Security Threat on the 
Coast Guard.
    (2) TSA serves an Initial Determination of Threat Assessment on the 
applicant if TSA determines that the applicant does not meet the 
security threat assessment standards described in 49 CFR 1572.5. The 
Initial Determination of Threat Assessment includes--
    (i) A statement that TSA has determined that the applicant poses a 
security threat warranting denial of the TWIC;
    (ii) The basis for the determination;
    (iii) Information about how the applicant may appeal the 
determination, as described in 49 CFR 1515.5 or 1515.9, as applicable; 
and
    (iv) A statement that if the applicant chooses not to appeal TSA's 
determination within 60 days of receipt of the Initial Determination, 
or does not request an extension of time within 60 days of receipt of 
the Initial Determination in order to file an appeal, the Initial 
Determination becomes a Final Determination of Security Threat 
Assessment.
    (3) TSA serves an Initial Determination of Threat Assessment and 
Immediate Revocation on the applicant, the applicant's employer

[[Page 3600]]

where appropriate, the FMSC, and in the case of a mariner applying for 
a TWIC, on the Coast Guard, if TSA determines that the applicant does 
not meet the security threat assessment standards described in 49 CFR 
1572.5 and may pose an imminent security threat. The Initial 
Determination of Threat Assessment and Immediate Revocation includes--
    (i) A statement that TSA has determined that the applicant poses a 
security threat warranting immediate revocation of a TWIC and 
unescorted access to secure areas;
    (ii) The basis for the determination;
    (iii) Information about how the applicant may appeal the 
determination, as described in 49 CFR 1515.5(h) or 1515.9(f), as 
applicable; and
    (iv) A statement that if the applicant chooses not to appeal TSA's 
determination within 60 days of receipt of the Initial Determination 
and Immediate Revocation, the Initial Determination and Immediate 
Revocation becomes a Final Determination of Threat Assessment.
    (4) If the applicant does not appeal the Initial Determination of 
Threat Assessment or Initial Determination of Threat Assessment and 
Immediate Revocation, TSA serves a Final Determination of Threat 
Assessment on the FMSC and in the case of a mariner, on the Coast 
Guard, and the applicant's employer where appropriate.
    (5) If the applicant appeals the Initial Determination of Threat 
Assessment or the Initial Determination of Threat Assessment and 
Immediate Revocation, the procedures in 49 CFR 1515.5 or 1515.9 apply.
    (6) Applicants who do not meet certain standards in 49 CFR 
1572.103, 1572.105, or 1572.109 may seek a waiver in accordance with 49 
CFR 1515.7.


Sec.  1572.23  TWIC expiration.

    (a) A TWIC expires five years after the date it was issued at the 
end of the calendar day, except as follows:
    (1) The TWIC was issued based on a determination that the applicant 
completed a comparable threat assessment. If issued pursuant to a 
comparable threat assessment, the TWIC expires five years from the date 
on the credential associated with the comparable threat assessment.
    (2) The applicant is in a lawful nonimmigrant status category 
listed in 1572.105(a)(7), and the status expires, the employer 
terminates the employment relationship with the applicant, or the 
applicant otherwise ceases working for the employer. Under any of these 
circumstances, TSA deems the TWIC to have expired regardless of the 
expiration date on the face of the TWIC.
    (b) TSA may issue a TWIC for a term less than five years to match 
the expiration of a visa.


Sec. Sec.  1572.24--1572.40  [Reserved]

Subpart B--Standards for Security Threat Assessments


Sec.  1572.101  Scope.

    This subpart applies to applicants who hold or are applying to 
obtain or renew an HME or TWIC, or transfer an HME. Applicants for an 
HME also are subject to safety requirements issued by the Federal Motor 
Carrier Safety Administration under 49 CFR part 383 and by the State 
issuing the HME, including additional immigration status and criminal 
history standards.


Sec.  1572.103  Disqualifying criminal offenses.

    (a) Permanent disqualifying criminal offenses. An applicant has a 
permanent disqualifying offense if convicted, or found not guilty by 
reason of insanity, in a civilian or military jurisdiction of any of 
the following felonies:
    (1) Espionage or conspiracy to commit espionage.
    (2) Sedition, or conspiracy to commit sedition.
    (3) Treason, or conspiracy to commit treason.
    (4) A federal crime of terrorism as defined in 18 U.S.C. 2332b(g), 
or comparable State law, or conspiracy to commit such crime.
    (5) A crime involving a transportation security incident. A 
transportation security incident is a security incident resulting in a 
significant loss of life, environmental damage, transportation system 
disruption, or economic disruption in a particular area, as defined in 
46 U.S.C. 70101. A work stoppage, or other nonviolent employee-related 
action, resulting from an employer-employee dispute is not a 
transportation security incident.
    (6) Improper transportation of a hazardous material under 49 U.S.C. 
5124, or a State law that is comparable.
    (7) Unlawful possession, use, sale, distribution, manufacture, 
purchase, receipt, transfer, shipping, transporting, import, export, 
storage of, or dealing in an explosive or explosive device. An 
explosive or explosive device includes, but is not limited to, an 
explosive or explosive material as defined in 18 U.S.C. 232(5), 841(c) 
through 841(f), and 844(j); and a destructive device, as defined in 18 
U.S.C. 921(a)(4) and 26 U.S.C. 5845(f).
    (8) Murder.
    (9) 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 transportations 
system, or an infrastructure facility.
    (10) Violations of the Racketeer Influenced and Corrupt 
Organizations Act, 18 U.S.C. 1961, et seq, or a State law that is 
comparable, where one of the predicate acts found by a jury or admitted 
by the defendant, consists of one of the crimes listed in paragraph (a) 
of this section.
    (11) Attempt to commit the crimes in paragraphs (a)(1) through 
(a)(4).
    (12) Conspiracy or attempt to commit the crimes in paragraphs 
(a)(5) through (a)(10).
    (b) Interim disqualifying criminal offenses. (1) The felonies 
listed in paragraphs (b)(2) of this section are disqualifying, if 
either:
    (i) the applicant was convicted, or found not guilty by reason of 
insanity, of the crime in a civilian or military jurisdiction, within 
seven years of the date of the application; or
    (ii) the applicant was incarcerated for that crime and released 
from incarceration within five years of the date of the TWIC 
application.
    (2) The interim disqualifying felonies are:
    (i) Unlawful possession, use, sale, manufacture, purchase, 
distribution, receipt, transfer, shipping, transporting, delivery, 
import, export of, or dealing in a firearm or other weapon. A firearm 
or other weapon includes, but is not limited to, firearms as defined in 
18 U.S.C. 921(a)(3) or 26 U.S.C. 5 845(a), or items contained on the 
U.S. Munitions Import List at 27 CFR 447.21.
    (ii) Extortion.
    (iii) Dishonesty, fraud, or misrepresentation, including identity 
fraud and money laundering where the money laundering is related to a 
crime described in paragraphs (a) or (b) of this section. Welfare fraud 
and passing bad checks do not constitute dishonesty, fraud, or 
misrepresentation for purposes of this paragraph.
    (iv) Bribery.
    (v) Smuggling.
    (vi) Immigration violations.
    (vii) Distribution of, possession with intent to distribute, or 
importation of a controlled substance.
    (viii) Arson.
    (ix) Kidnapping or hostage taking.
    (x) Rape or aggravated sexual abuse.
    (xi) Assault with intent to kill.
    (xi) Robbery.
    (xii) Conspiracy or attempt to commit the crimes in this paragraph 
(b).

[[Page 3601]]

    (xiii) Violations of the Racketeer Influenced and Corrupt 
Organizations Act, 18 U.S.C. 1961, et seq., or a1036, or comparable 
State law that is comparable, other than the violations listed in 
paragraph (a)(10) of this section., for fraudulent entry into secure 
seaport areas.
    (xiv) Conspiracy or attempt to commit the crimes in this paragraph 
(b).
    (c) Under want, warrant, or indictment. An applicant who is wanted, 
or under indictment in any civilian or military jurisdiction for a 
felony listed in this section, is disqualified until the want or 
warrant is released or the indictment is dismissed.
    (d) Determination of arrest status. (1) When a fingerprint-based 
check discloses an arrest for a disqualifying crime listed in this 
section without indicating a disposition, TSA will so notify the 
applicant and provide instructions on how the applicant must clear the 
disposition, in accordance with paragraph (d)(2) of this section.
    (2) The applicant must provide TSA with written proof that the 
arrest did not result in conviction for the disqualifying criminal 
offense, within 60 days after the service date of the notification in 
paragraph (d)(1) of this section. If TSA does not receive proof in that 
time, TSA will notify the applicant that he or she is disqualified. In 
the case of an HME, TSA will notify the State that the applicant is 
disqualified, and in the case of a mariner applying for TWIC, TSA will 
notify the Coast Guard that the applicant is disqualified.


Sec.  1572.105  Immigration status.

    (a) An individual applying for a security threat assessment for a 
TWIC or HME must be a national of the United States or--
    (1) A lawful permanent resident of the United States;
    (2) A refugee admitted under 8 U.S.C. 1157;
    (3) An alien granted asylum under 8 U.S.C. 1158;
    (4) An alien in valid M-1 nonimmigrant status who is enrolled in 
the United States Merchant Marine Academy or a comparable State 
maritime academy. Such individuals may serve as unlicensed mariners on 
a documented vessel, regardless of their nationality, under 46 U.S.C. 
8103.
    (5) A nonimmigrant alien admitted under the Compact of Free 
Association between the United States and the Federated States of 
Micronesia, the United States and the Republic of the Marshall Islands, 
or the United States and Palau.
    (6) An alien in lawful nonimmigrant status who has unrestricted 
authorization to work in the United States, except--
    (i) An alien in valid S-5 (informant of criminal organization 
information) lawful nonimmigrant status;
    (ii) An alien in valid S-6 (informant of terrorism information) 
lawful nonimmigrant status;
    (iii) An alien in valid K-1 (Fianco(e)) lawful nonimmigrant status; 
or
    (iv) An alien in valid K-2 (Minor child of Fianco(e)) lawful 
nonimmigrant status.
    (7) An alien in the following lawful nonimmigrant status who has 
restricted authorization to work in the United States--
    (i) C-1/D Crewman Visa
    (ii) H-1B Special Occupations;
    (ii) H-1B1 Free Trade Agreement;
    (iv) E-1 Treaty Trader;
    (v) E-3 Australian in Specialty Occupation;
    (vi) L-1 Intracompany Executive Transfer;
    (vii) O-1 Extraordinary Ability; or
    (viii) TN North American Free Trade Agreement.
    (8) A commercial driver licensed in Canada or Mexico who is 
admitted to the United States under 8 CFR 214.2(b)(4)(i)(E) to conduct 
business in the United States.
    (b) Upon expiration of a nonimmigrant status listed in paragraph 
(a)(7) of this section, an employer must retrieve the TWIC from the 
applicant and provide it to TSA.
    (c) Upon expiration of a nonimmigrant status listed in paragraph 
(a)(7) of this section, an employee must surrender his or her TWIC to 
the employer.
    (d) If an employer terminates an applicant working under a 
nonimmigrant status listed in paragraph (a)(7) of this section, or the 
applicant otherwise ceases working for the employer, the employer must 
notify TSA within 5 business days and provide the TWIC to TSA if 
possible.
    (e) Any individual in removal proceedings or subject to an order of 
removal under the immigration laws of the United States is not eligible 
to apply for a TWIC.
    (f) To determine an applicant's immigration status, TSA will check 
relevant Federal databases and may perform other checks, including the 
validity of the applicant's alien registration number, social security 
number, or I-94 Arrival-Departure Form number.


Sec.  1572.107  Other analyses.

    (a) TSA may determine that an applicant poses a security threat 
based on a search of the following databases:
    (1) Interpol and other international databases, as appropriate.
    (2) Terrorist watchlists and related databases.
    (3) Any other databases relevant to determining whether an 
applicant poses, or is suspected of posing, a security threat, or that 
confirm an applicant's identity.
    (b) TSA may also determine that an applicant poses a security 
threat, if the search conducted under this part reveals extensive 
foreign or domestic criminal convictions, a conviction for a serious 
crime not listed in 49 CFR 1572.103, or a period of foreign or domestic 
imprisonment that exceeds 365 consecutive days.


Sec.  1572.109  Mental capacity.

    (a) An applicant has mental incapacity, if he or she has been--
    (1) Adjudicated as lacking mental capacity; or
    (2) Committed to a mental health facility.
    (b) An applicant is adjudicated as lacking mental capacity if--
    (1) A court, board, commission, or other lawful authority has 
determined that the applicant, as a result of marked subnormal 
intelligence, mental illness, incompetence, condition, or disease, is a 
danger to himself or herself or to others, or lacks the mental capacity 
to conduct or manage his or her own affairs.
    (2) This includes a finding of insanity by a court in a criminal 
case and a finding of incompetence to stand trial; or a finding of not 
guilty by reason of lack of mental responsibility, by any court, or 
pursuant to articles 50a and 76b of the Uniform Code of Military 
Justice (10 U.S.C. 850a and 876b).
    (c) An applicant is committed to a mental health facility if he or 
she is formally committed to a mental health facility by a court, 
board, commission, or other lawful authority, including involuntary 
commitment and commitment for lacking mental capacity, mental illness, 
and drug use. This does not include commitment to a mental health 
facility for observation or voluntary admission to a mental health 
facility.

[[Page 3602]]

Sec. Sec.  1572.111 through 1572.139  [Reserved]

Subpart C--Transportation of Hazardous Materials From Canada or 
Mexico To and Within the United States by Land Modes


Sec.  1572.201  Transportation of hazardous materials via commercial 
motor vehicle from Canada or Mexico to and within the United States.

    (a) Applicability. This section applies to commercial motor vehicle 
drivers licensed by Canada and Mexico.
    (b) Terms used in this section. The terms used in 49 CFR parts 
1500, 1570, and 1572 also apply in this subpart. In addition, the 
following terms are used in this subpart for purposes of this section:
    FAST means Free and Secure Trade program of the Bureau of Customs 
and Border Protection (CBP), a cooperative effort between CBP and the 
governments of Canada and Mexico to coordinate processes for the 
clearance of commercial shipments at the border.
    Hazardous materials means material that has been designated as 
hazardous under 49 U.S.C. 5103 and is required to be placarded under 
subpart F of 49 CFR part 172 or any quantity of material that listed as 
a select agent or toxin in 42 CFR part 73.
    (c) Background check required. A commercial motor vehicle driver 
who is licensed by Canada or Mexico may not transport hazardous 
materials into or within the United States unless the driver has 
undergone a background check similar to the one required of U.S.-
licensed operators with a hazardous materials endorsement (HME) on a 
commercial driver's license, as prescribed in 49 CFR 1572.5.
    (d) FAST card. A commercial motor vehicle driver who holds a 
current Free and Secure Trade (FAST) program card satisfies the 
requirements of this section. Commercial motor vehicle drivers who wish 
to apply for a FAST program card must contact the FAST Commercial 
Driver Program, Bureau of Customs and Border Protection (CBP), 
Department of Homeland Security.
    (e) TWIC. A commercial motor vehicle driver who holds a TWIC 
satisfies the requirements of this section. Commercial vehicle drivers 
who wish to apply for a TWIC must comply with the rules in 49 CFR part 
1572.


Sec.  1572.203  Transportation of explosives from Canada to the United 
States via railroad carrier.

    (a) Applicability. This section applies to railroad carriers that 
carry explosives from Canada to the United States, using a train crew 
member who is not a U.S. citizen or lawful permanent resident alien of 
the United States.
    (b) Terms under this section. For purposes of this section:
    Customs and Border Protection (CBP) means the Bureau of Customs and 
Border Protection, an agency within the U.S. Department of Homeland 
Security.
    Explosive means a material that has been examined by the Associate 
Administrator for Hazardous Materials Safety, Research and Special 
Programs Administration, in accordance with 49 CFR 173.56, and 
determined to meet the definition for a Class 1 material in 49 CFR 
173.50.
    Known railroad carrier means a person that has been determined by 
the Governments of Canada and the United States to be a legitimate 
business, operating in accordance with all applicable laws and 
regulations governing the transportation of explosives.
    Known offeror means an offeror that has been determined by the 
Governments of Canada and the United States to be a legitimate 
business, operating in accordance with all applicable laws and 
regulations governing the transportation of explosives.
    Known train crew member means an individual used to transport 
explosives from Canada to the United States, who has been determined by 
the Governments of Canada and the United States to present no known 
security concern.
    Lawful permanent resident alien means an alien lawfully admitted 
for permanent residence, as defined by 8 U.S.C. 1101(a)(20).
    Offeror means the person offering a shipment to the railroad 
carrier for transportation from Canada to the United States, and may 
also be known as the ``consignor'' in Canada.
    Railroad carrier means ``railroad carrier'' as defined in 49 U.S.C. 
20102.
    (c) Prior approval of railroad carrier, offeror, and train crew 
member. (1) No railroad carrier may transport in commerce any explosive 
into the United States from Canada, via a train operated by a crew 
member who is not a U.S. national or lawful permanent resident alien, 
unless the railroad carrier, offeror, and train crew member are 
identified on a TSA list as a known railroad carrier, known offeror, 
and known train crew member, respectively.
    (2) The railroad carrier must ensure that it, its offeror, and each 
of its crew members have been determined to be a known railroad 
carrier, known offeror, and known train crew member, respectively. If 
any has not been so determined, the railroad carrier must submit the 
following information to Transport Canada:
    (i) The railroad carrier's identification, including--
    (A) Official name;
    (B) Business number;
    (C) Any trade names; and
    (D) Address.
    (ii) The following information about any offeror of explosives 
whose shipments it will carry:
    (A) Official name.
    (B) Business number.
    (C) Address.
    (iii) The following information about any train crew member the 
railroad carrier may use to transport explosives into the United States 
from Canada, who is neither a U.S. national nor lawful permanent 
resident alien:
    (A) Full name.
    (B) Both current and most recent prior residential addresses.
    (3) Transport Canada will determine whether the railroad carrier 
and offeror are legitimately doing business in Canada and will also 
determine whether the train crew members present no known problems for 
purposes of this section. Transport Canada will notify TSA of these 
determinations by forwarding to TSA lists of known railroad carriers, 
offerors, and train crew members and their identifying information.
    (4) TSA will update and maintain the list of known railroad 
carriers, offerors, and train crew members and forward the list to CBP.
    (5) Once included on the list, the railroad carriers, offerors, and 
train crew members need not obtain prior approval for future transport 
of explosives under this section.
    (d) TSA checks. TSA may periodically check the data on the railroad 
carriers, offerors, and train crew members to confirm their continued 
eligibility, and may remove from the list any that TSA determines is 
not known or is a threat to security.
    (e) At the border. (1) Train crew members who are not U.S. 
nationals or lawful permanent resident aliens. Upon arrival at a point 
designated by CBP for inspection of trains crossing into the United 
States, the train crew members of a train transporting explosives must 
provide sufficient identification to CBP to enable that agency to 
determine if each crew member is on the list of known train crew 
members maintained by TSA.
    (2) Train crew members who are U.S. nationals or lawful permanent 
resident aliens. If CBP cannot verify that the crew member is on the 
list and the crew member is a U.S. national or lawful permanent 
resident alien, the crew

[[Page 3603]]

member may be cleared by CBP upon providing--
    (i) A valid U.S. passport; or
    (ii) One or more other document(s), including a form of U.S. 
Federal or state Government-issued identification with photograph, 
acceptable to CBP.
    (3) Compliance. If a carrier attempts to enter the U.S. without 
having complied with this section, CBP will deny entry of the 
explosives and may take other appropriate action.

Subpart D--[Reserved]

Subpart E--Fees for Security Threat Assessments for Hazmat Drivers


Sec.  1572.400  Scope and definitions.

    (a) Scope. This part applies to--
    (1) States that issue an HME for a commercial driver's license;
    (2) Individuals who apply to obtain or renew an HME for a 
commercial driver's license and must undergo a security threat 
assessment under 49 CFR part 1572; and
    (3) Entities who collect fees from such individuals on behalf of 
TSA.
    (b) Terms. As used in this part:
    Commercial driver's license (CDL) is used as defined in 49 CFR 
383.5.
    Day means calendar day.
    FBI Fee means the fee required for the cost of the Federal Bureau 
of Investigation (FBI) to process fingerprint records.
    Information Collection Fee means the fee required, in this part, 
for the cost of collecting and transmitting fingerprints and other 
applicant information under 49 CFR part 1572.
    Threat Assessment Fee means the fee required, in this part, for the 
cost of TSA adjudicating security threat assessments, appeals, and 
waivers under 49 CFR part 1572.
    TSA agent means an entity approved by TSA to collect and transmit 
fingerprints and applicant information, in accordance with 49 CFR part 
1572, and fees in accordance with this part.


Sec.  1572.401  Fee collection options.

    (a) State collection and transmission. If a State collects 
fingerprints and applicant information under 49 CFR part 1572, the 
State must collect and transmit to TSA the Threat Assessment Fee, in 
accordance with the requirements of 49 CFR 1572.403. The State also 
must collect and remit the FBI, in accordance with established 
procedures.
    (b) TSA agent collection and transmission. If a TSA agent collects 
fingerprints and applicant information under 49 CFR part 1572, the 
agent must--
    (1) Collect the Information Collection Fee, Threat Assessment Fee, 
and FBI Fee, in accordance with procedures approved by TSA;
    (2) Transmit to TSA the Threat Assessment Fee, in accordance with 
procedures approved by TSA; and
    (3) Transmit to TSA the FBI Fee, in accordance with procedures 
approved by TSA and the FBI.


Sec.  1572.403  Procedures for collection by States.

    This section describes the procedures that a State, which collects 
fingerprints and applicant information under 49 CFR part 1572; and the 
procedures an individual who applies to obtain or renew an HME, for a 
CDL in that State, must follow for collection and transmission of the 
Threat Assessment Fee and the FBI Fee.
    (a) Imposition of fees. (1) The following Threat Assessment Fee is 
required for TSA to conduct a security threat assessment, under 49 CFR 
part 1572, for an individual who applies to obtain or renew an HME: 
$34.
    (2) The following FBI Fee is required for the FBI to process 
fingerprint identification records and name checks required under 49 
CFR part 1572: the fee collected by the FBI under Pub. L. 101-515.
    (3) An individual who applies to obtain or renew an HME, or the 
individual's employer, must remit to the State the Threat Assessment 
Fee and the FBI Fee, in a form and manner approved by TSA and the 
State, when the individual submits the application for the HME to the 
State.
    (b) Collection of fees. (1) A State must collect the Threat 
Assessment Fee and FBI Fee, when an individual submits an application 
to the State to obtain or renew an HME.
    (2) Once TSA receives an application from a State for a security 
threat assessment under 49 CFR part 1572, the State is liable for the 
Threat Assessment Fee.
    (3) Nothing in this subpart prevents a State from collecting any 
other fees that a State may impose on an individual who applies to 
obtain or renew an HME.
    (c) Handling of fees. (1) A State must safeguard all Threat 
Assessment Fees, from the time of collection until remittance to TSA.
    (2) All Threat Assessment Fees are held in trust by a State for the 
beneficial interest of the United States in paying for the costs of 
conducting the security threat assessment, required by 49 U.S.C. 5103a 
and 49 CFR part 1572. A State holds neither legal nor equitable 
interest in the Threat Assessment Fees, except for the right to retain 
any accrued interest on the principal amounts collected pursuant to 
this section.
    (3) A State must account for Threat Assessment Fees separately, but 
may commingle such fees with other sources of revenue.
    (d) Remittance of fees. (1) TSA will generate and provide an 
invoice to a State on a monthly basis. The invoice will indicate the 
total fee dollars (number of applicants times the Threat Assessment 
Fee) that are due for the month.
    (2) A State must remit to TSA full payment for the invoice, within 
30 days after TSA sends the invoice.
    (3) TSA accepts Threat Assessment Fees only from a State, not from 
an individual applicant for an HME.
    (4) A State may retain any interest that accrues on the principal 
amounts collected between the date of collection and the date the 
Threat Assessment Fee is remitted to TSA, in accordance with paragraph 
(d)(2) of this section.
    (5) A State may not retain any portion of the Threat Assessment Fee 
to offset the costs of collecting, handling, or remitting Threat 
Assessment Fees.
    (6) Threat Assessment Fees, remitted to TSA by a State, must be in 
U.S. currency, drawn on a U.S. bank, and made payable to the 
``Transportation Security Administration.''
    (7) Threat Assessment Fees must be remitted by check, money order, 
wire, or any other payment method acceptable to TSA.
    (8) TSA will not issue any refunds of Threat Assessment Fees.
    (9) If a State does not remit the Threat Assessment Fees for any 
month, TSA may decline to process any HME applications from that State.


Sec.  1572.405  Procedures for collection by TSA.

    This section describes the procedures that an individual, who 
applies to obtain or renew an HME for a CDL, must follow if a TSA agent 
collects and transmits the Information Collection Fee, Threat 
Assessment Fee, and FBI Fee.
    (a) Imposition of fees. (1) The following Information Collection 
Fee is required for a TSA agent to collect and transmit fingerprints 
and applicant information, in accordance with 49 CFR part 1572: $38.
    (2) The following Threat Assessment Fee is required for TSA to 
conduct a security threat assessment, under 49 CFR part 1572, for an 
individual who applies to obtain or renew an HME: $34.
    (3) The following FBI Fee is required for the FBI to process 
fingerprint identification records required under 49 CFR part 1572: The 
fee collected by the FBI under Pub. L. 101-515.

[[Page 3604]]

    (4) An individual who applies to obtain or renew an HME, or the 
individual's employer, must remit to the TSA agent the Information 
Collection Fee, Threat Assessment Fee, and FBI Fee, in a form and 
manner approved by TSA, when the individual submits the application 
required under 49 CFR part 1572.
    (b) Collection of fees. A TSA agent will collect the fees required 
under this section, when an individual submits an application to the 
TSA agent, in accordance with 49 CFR part 1572.
    (c) Remittance of fees. (1) Fees required under this section, which 
are remitted to a TSA agent, must be made in U.S. currency, drawn on a 
U.S. bank, and made payable to the ``Transportation Security 
Administration.''
    (2) Fees required under this section must be remitted by check, 
money order, wire, or any other payment method acceptable to TSA.
    (3) TSA will not issue any refunds of fees required under this 
section.
    (4) Applications, submitted in accordance with 49 CFR part 1572, 
will be processed only upon receipt of all applicable fees under this 
section.

Subpart F--Fees for Security Threat Assessments for Transportation 
Worker Identification Credential (TWIC)


Sec.  1572.500  Scope.

    (a) Scope. This part applies to--
    (1) Individuals who apply to obtain or renew a Transportation 
Worker Identification Credential and must undergo a security threat 
assessment under 49 CFR part 1572; and
    (2) Entities that collect fees from such individuals on behalf of 
TSA.
    (b) Terms. As used in this part:
    TSA agent means the entity approved by TSA to collect and transmit 
fingerprints and applicant information, and collect fees in accordance 
with this part.


Sec.  1572.501  Fee collection.

    (a) When fee must be paid. When an applicant submits the 
information and fingerprints required under 49 CFR part 1572 to obtain 
or renew a TWIC, the fee must be remitted to TSA or its agent in 
accordance with the requirements of this section. Applications 
submitted in accordance with 49 CFR part 1572 will be processed only 
upon receipt of all required fees under this section.
    (b) Standard TWIC Fee. The fee to obtain or renew a TWIC, other 
than for those identified in paragraph (a)(2) of this section, will be 
announced in the Federal Register after January 25, 2007. This fee is 
made up of the total of the following segments:
    (1) The Enrollment Segment covers the cost for TSA or its agent to 
enroll applicants.
    (2) The Full Card Production/Security Threat Assessment Segment 
covers the cost for TSA to conduct a security threat assessment.
    (3) The FBI Segment covers the cost for the FBI to process 
fingerprint identification records under Pub. L. 101-515 and is $22. If 
the FBI amends this fee, TSA or its agent will collect the amended fee.
    (c) Reduced TWIC Fee. The fee to obtain a TWIC when the applicant 
has undergone a comparable threat assessment in connection with an HME, 
a FAST card, other threat assessment deemed to be comparable under 49 
CFR 1572.5(d), or holds an Merchant Mariner Document or Merchant 
Mariner License, will be announced in the Federal Register after 
January 25, 2007. This fee is made up of the following segments:
    (1) The Enrollment Segment; and
    (2) The Reduced Card Production/Security Threat Assessment Segment.
    (d) Card Replacement Fee. The fee to replace a TWIC that has been 
lost, stolen, or damaged will be announced in the Federal Register 
after January 25, 2007.
    (e) Form of fee. The TSA vendor will collect the fee required to 
obtain or renew a TWIC and will determine the method of acceptable 
payment, subject to approval by TSA.
    (f) Refunds. TSA will not issue any refunds of fees required under 
this section.
    (g) Inflation adjustment. The fees prescribed in this section, 
except the FBI fee, may be adjusted annually on or after October 1, 
2007, by publication of an inflation adjustment. A final rule in the 
Federal Register will announce the inflation adjustment. The adjustment 
shall be a composite of the Federal civilian pay raise assumption and 
non-pay inflation factor for that fiscal year issued by the Office of 
Management and Budget for agency use in implementing OMB Circular A-76, 
weighted by the pay and non-pay proportions of total funding for that 
fiscal year. If Congress enacts a different Federal civilian pay raise 
percentage than the percentage issued by OMB for Circular A-76, the 
Department of Homeland Security may adjust the fees to reflect the 
enacted level. The required fee shall be the amount prescribed in 
paragraphs (a)(1)(i) and (a)(1)(ii), plus the latest inflation 
adjustment.

    Dated: December 26, 2006.
Thad W. Allen,
Commandant, United States Coast Guard.
    Dated: December 30, 2006.
Kip Hawley,
Assistant Secretary, Transportation Security Administration.
[FR Doc. 07-19 Filed 1-24-07; 8:45 am]
BILLING CODE 9110-05-P


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