3492 Federal Register / Vol. 72, No. 16 / Thursday, January 25, 2007 / Rules and Regulations 

DEPARTMENT OF HOMELAND 

SECURITY 

Coast Guard 

33 CFR Parts 101, 103, 104, 105, 106, 

125 and 46 CFR Parts 10, 12, 15 

Transportation Security Administration 

49 CFR Parts 1515, 1540, 1570, 1572 

[Docket Nos. TSA–2006–24191; Coast 

Guard–2006–24196; TSA Amendment 

Nos. 1515–(New), 1540–8, 1570–2, 

1572–7] 

RIN 1652–AA41 

Transportation Worker Identification 

Credential (TWIC) Implementation in 

the Maritime Sector; Hazardous 

Materials Endorsement for a 

Commercial Driver’s License 

AGENCY: Transportation Security 

Administration; United States Coast 

Guard, DHS. 

ACTION: Final rule; request for 

comments. 

SUMMARY: The Department of Homeland 

Security (DHS), through the 

Transportation Security Administration 

(TSA) and the United States Coast 

Guard (Coast Guard), issues this final 

rule to further secure our Nation’s ports 

and modes of transportation. This rule 

implements the Maritime 

Transportation Security Act of 2002 and 

the Security and Accountability for 

Every Port Act of 2006. Those statutes 

establish requirements regarding the 

promulgation of regulations that require 

credentialed merchant mariners and 

workers with unescorted access to 

secure areas of vessels and facilities to 

undergo a security threat assessment 

and receive a biometric credential, 

known as a Transportation Worker 

Identification Credential (TWIC). After 

DHS publishes a notice announcing the 

compliance date for each Captain of the 

Port (COTP) zone, persons without 

TWICs will not be granted unescorted 

access to secure areas at affected 

maritime facilities. Those seeking 

unescorted access to secure areas aboard 

affected vessels, and all Coast Guard 

credentialed merchant mariners must 

possess a TWIC by September 25, 2008. 

This final rule will enhance the security 

of ports by requiring such security 

threat assessments of persons in secure 

areas and by improving access control 

measures to prevent those who may 

pose a security threat from gaining 

unescorted access to secure areas of 

ports. 

With this final rule, the Coast Guard 

amends its regulations on vessel and 

facility security to require the use of the 

TWIC as an access control measure. The 

Coast Guard also amends its merchant 

mariner regulations to incorporate the 

requirement to obtain a TWIC. This final 

rule does not include the card reader 

requirements for owners and operators 

set forth in the Notice of Proposed 

Rulemaking (NPRM) issued in this 

matter on May 22, 2006. Such 

requirements will be addressed in a 

future rulemaking. Although the card 

reader requirements are not being 

implemented at this time, the Coast 

Guard will institute periodic 

unannounced checks to confirm the 

identity of the holder of the TWIC. 

With this final rule, TSA applies its 

security threat assessment standards 

that currently apply to commercial 

drivers authorized to transport 

hazardous materials in commerce to 

merchant mariners and workers who 

require unescorted access to secure 

areas on vessels and at maritime 

facilities. This final rule amends TSA 

regulations in a number of ways. To 

minimize redundant background checks 

of workers, TSA amends the threat 

assessment standards to include a 

process by which TSA determines if a 

security threat assessment conducted by 

another governmental agency or by TSA 

for another program is comparable to 

the standards in this rule. TSA amends 

the qualification standards by changing 

the list of crimes that disqualify an 

individual from holding a TWIC or a 

hazardous materials endorsement. 

TSA expands the appeal and waiver 

provisions to apply to TWIC applicants 

and air cargo employees who undergo a 

security threat assessment. These 

modifications include a process for the 

review of adverse waiver decisions and 

certain disqualification cases by an 

administrative law judge (ALJ). TSA 

also extends the time period in which 

applicants may apply for an appeal or 

waiver. 

Finally, this rule establishes the user 

fee for the TWIC and invites comment 

on one component of the fee, the card 

replacement fee. 

Under this rule, TSA will begin 

issuing first generation TWIC cards at 

initial port deployment locations. These 

TWIC cards will not initially support 

contactless biometric operations, but the 

TWIC cards will be functional with 

certain existing access control systems 

in use at ports today. 

TSA and the Coast Guard have 

established a working group, comprised 

of members of the maritime and 

technology industries, through the 

National Maritime Security Advisory 

Committee (NMSAC), a federal advisory 

committee to the Coast Guard. This 

working group, in consultation with the 

National Institute for Standards and 

Technology (NIST), is tasked with 

recommending the contactless biometric 

software specification for TWIC cards. 

TSA will publish a notice detailing 

the draft contactless biometric software 

specification for TWIC cards no later 

than the date by which it publishes the 

final TWIC fee as required by this Rule. 

Currently those notices are expected to 

be published in February 2007. TSA 

will subsequently publish a final 

specification for TWIC contactless 

biometric software functionality and the 

associated specifications for TWIC card 

readers. TSA plans also to write 

electronically the contactless biometric 

software application to all issued TWIC 

cards after publication of this 

specification. After initial field testing, 

this additional contactless biometric 

function will be included with all TWIC 

cards produced after publication of the 

contactless biometric software 

specification. 

Although this rule goes into effect on 

March 26, 2007, the requirements to 

hold a TWIC, and to restrict access to 

secure areas of a facility or OCS facility, 

will be effective only after the regulated 

party is notified by DHS. These 

notifications will be published in the 

Federal Register and will require 

compliance on a COTP by COTP basis. 

Those seeking unescorted access to 

secure areas aboard affected vessels, and 

all Coast Guard credentialed merchant 

mariners must possess a TWIC by 

September 25, 2008. 

DATES: Effective Date: This rule is 

effective March 26, 2007. 

Comment Date: Comments with 

respect to the Card Replacement Fee 

must be submitted by February 26, 

2007. 

ADDRESSES: Comments and material 

received from the public, as well as 

documents mentioned in this preamble 

as being available in the docket, are part 

of dockets TSA–2006–24191 and Coast 

Guard–2006–24196 and are available for 

inspection or copying at the Docket 

Management Facility, U.S. Department 

of Transportation, room PL–401, 400 

Seventh Street SW., Washington, DC, 

between 9 a.m. and 5 p.m., Monday 

through Friday, except Federal holidays. 

You may also find this docket on the 

Internet at http://dms.dot.gov. 

You may submit comments identified 

by docket number TSA–2006–24191 to 

the Docket Management Facility at the 

U.S. Department of Transportation. To 

avoid duplication, please use only one 

of the following methods: 

(1) Web Site: http://dms.dot.gov. 

(2) Mail: Docket Management Facility, 

U.S. Department of Transportation, 400 


ycherry on PROD1PC64 with RULES2
Federal Register / Vol. 72, No. 16 / Thursday, January 25, 2007 / Rules and Regulations 3493 

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. 

Seventh Street SW., Room PL–401, 

Washington, DC 20590–0001. 

(3) Fax: 202–493–2251. 

(4) Delivery: Room PL–401 on the 

Plaza level of the Nassif Building, 400 

Seventh Street SW., Washington, DC, 

between 9 a.m. and 5 p.m., Monday 

through Friday, except Federal holidays. 

The telephone number is 202–366–

9329. 

(5) Federal eRulemaking Portal: 

http://www.regulations.gov. 

See SUPPLEMENTARY INFORMATION for 

format and other information about 

comment submissions. 

FOR FURTHER INFORMATION CONTACT: For 

questions related to TSA’s standards: 

Greg Fisher, Transportation Security 

Administration, TSA–19, 601 South 

12th Street, Arlington, VA 22202–4220, 

TWIC Program, (571) 227–4545; e-mail: 

credentialing@dhs.gov. 

For legal questions: Christine Beyer, 

TSA–2, Transportation Security 

Administration, 601 South 12th Street, 

Arlington, VA 22202–4220; telephone 

(571) 227–2657; facsimile (571) 227–

1380; e-mail Christine.Beyer@dhs.gov. 

For questions concerning the Coast 

Guard provisions of the TWIC rule: 

LCDR Jonathan Maiorine, Commandant 

(G–PCP–2), United States Coast Guard, 

2100 Second Street, SW., Washington, 

DC 20593; telephone 1–877–687–2243. 

For questions concerning viewing or 

submitting material to the docket: Renee 

V. Wright, Program Manager, Docket 

Management System, U.S. Department 

of Transportation, Room Plaza 401, 400 

Seventh Street, SW., Washington, DC 

20590–0001; telephone (202) 493–0402. 

SUPPLEMENTARY INFORMATION: 

Comments Invited 

TSA invites comment on one 

provision of the rule, the Card 

Replacement Fee, as discussed in 

section I under Fees and section VI of 

this preamble. See ADDRESSES above for 

information on where to submit 

comments. With each comment, please 

include your name and address, identify 

the docket number at the beginning of 

your comments, and give the reason for 

each comment. Please explain the 

reason for any recommended change 

and include supporting data. You may 

submit comments and material 

electronically, in person, by mail, or fax 

as provided under ADDRESSES, but 

please submit your comments and 

material by only one means. If you 

submit comments by mail or delivery, 

submit them in an unbound format, no 

larger than 8.5 by 11 inches, suitable for 

copying and electronic filing. 

If you want TSA to acknowledge 

receipt of comments submitted by mail, 

include with your comments a selfaddressed, 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. 

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 


ycherry on PROD1PC64 with RULES2
3494 Federal Register / Vol. 72, No. 16 / Thursday, January 25, 2007 / Rules and Regulations 

2Additional information on the statutory and 

regulatory history of this rule can be found in the 

NPRM at 71 FR 29396 (May 22, 2006). 

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. 

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 


ycherry on PROD1PC64 with RULES2
Federal Register / Vol. 72, No. 16 / Thursday, January 25, 2007 / Rules and Regulations 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 § 1572.107 may seek 

ALJ review of the disqualification. 

A security threat assessment is valid 

for five years. Therefore, in most cases, 

a TWIC is valid for five years unless a 

disqualifying event occurs. If an 

applicant obtains a TWIC based on a 

comparable threat assessment under 

§ 1572.5(e), the TWIC will expire five 

years from the date on the credential 

associated with the comparable threat 

assessment. To renew a TWIC, the 

renewal applicant must provide new 

biographic and biometric information, 

complete a new threat assessment, and 

pay the fee to renew the credential. 

C. Changes From NPRM 

Each of the changes made from the 

NPRM to the final rule is summarized 

in Table 1 and discussed in detail 

following the table. 

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

Topic NPRM Final rule 

Access control ................................. Visual identity badge and reader 

(with biometric verification and 

validity check at facility/vessel 

based on MARSEC level).

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

Escorted access .............................. Definition only ................................ Definition modified to clarify that in restricted areas (33 CFR 

101.105), ‘‘escort’’ means a side-by-side escort; outside restricted 

areas, ‘‘escort’’ may consist of monitoring. 

New hires ........................................ Not granted unescorted access to 

secure areas until successful 

completion of security threat assessment and card issuance.

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

Passenger access area ................... Defined only for certain vessels 

(passenger, ferries, cruise ships).

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

ships). 

TWIC Addendum and recordkeeping requirements.Included ......................................... Excluded. 

Secure area ..................................... Definition only ................................ Clarified definition’s meaning in preamble, and revised part 105 to 

allow part 105 facilities to submit FSP amendment to change access control area. 


ycherry on PROD1PC64 with RULES2
3496 Federal Register / Vol. 72, No. 16 / Thursday, January 25, 2007 / Rules and Regulations 

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

Topic NPRM Final rule 

Lost/Stolen/Damaged cards ............ Access procedures defined in 

TWIC Addendum.

Specific requirements included in regulation. 

AMS Committee members .............. Need TWIC .................................... Need name-based check or a TWIC. 

Vessels in foreign waters ................ No special provisions .................... Changed secure area definition to state that at certain specified 

times, U.S. vessels may not have any secure areas. 

Emergency responders ................... Not specifically addressed ............ Not required to obtain a TWIC for emergency response. 

Voluntary compliance ...................... Offered ........................................... Not offered. 

Compliance dates ............................ 12–18 months after final rule ........ Phased for facilities by each COTP zone. All mariners and vessels 

20 months after the publication date of this final rule. 

Disqualifying crimes ........................ Same as those used for HME ....... Amended; new list will apply for both TWIC and HME. 

Administrative law judge (ALJ) review.Not included .................................. May be used for waiver denials and disqualifications under 

§ 1572.107. 

Immigration standards ..................... Limited ability for non-U.S. citizens 

to obtain TWICs.

Expanded to cover foreign maritime students, and certain professionals and specialists on restricted visas; permitting aliens in TPS 

to apply for a waiver. 

Mental incapacity ............................. Could only be waived by showing 

court order or letter from institution.

Waiver broadened to allow for ‘‘case-by-case’’ determinations. 

Fee .................................................. $95–$149; card replacement fee 

$36.

$107–$159; card replacement fee $36, but requesting comment on 

increasing this fee to $60. 

1. Changes From Coast Guard’s 

Proposed Rule 

Coast Guard is changing several 

sections of the proposed rule as a result 

of comments received and additional 

analysis. These changes include: (1) 

Changing the access control procedures 

to be used with TWICs by removing the 

reader requirements; (2) revising and 

clarifying the definition of the term 

‘‘escorting;’’ (3) adding provisions 

allowing for access for individuals who 

are new hires and who have applied for, 

but not yet received, a TWIC; (4) adding 

a provision to allow for limited, 

continued unescorted access for those 

individuals who report their TWIC as 

lost, damaged, or stolen; (5) adding a 

provision to create ‘‘employee access 

areas’’ aboard passenger vessels and 

ferries; (6) removing the proposed 

requirement to submit a TWIC 

Addendum and keep additional records 

regarding who has been granted access 

privileges; (7) adding a provision to 

allow certain facilities to designate 

smaller portions of their property as 

their secure area via an amendment to 

their facility security plan; (8) removing 

the proposed requirement for all AMS 

Committee members to hold a TWIC; (9) 

changing the definition of secure area to 

state that, at certain times, U.S. vessels 

may not have any secure areas; (10) 

adding a provision to allow emergency 

responders to have unescorted access 

without a TWIC during emergency 

situations; (11) removing the provision 

allowing for voluntary compliance for 

those vessels and facilities not 

otherwise required to implement the 

TWIC requirements; and (12) revising 

the compliance dates for owners/ 

operators of vessels and facilities. 

(a). Reader Requirements 

After reviewing the comments (which 

are summarized below), we determined 

that implementing the reader 

requirements as envisioned in the 

NPRM would not be prudent at this 

time. As such, we have removed the 

reader requirements from the final rule, 

and will be issuing a subsequent NPRM 

to address these requirements. That 

NPRM will address many of the 

comments and concerns regarding 

technology that were raised in the 

below-summarized comments. We will, 

however, continue to require the use of 

the TWIC. As stated in the NPRM, there 

are considerable security benefits to be 

gained from a TWIC, even in the 

absence of reader usage. The TWIC 

provides greater reliability than existing 

visual identity badge systems because it 

presents a uniform appearance with 

embedded features on the face of the 

credential that make it difficult to forge 

or alter. When presented with a TWIC, 

security personnel familiar with its 

security features are immediately able to 

notice any absence or destruction of 

these features, making it less likely that 

an individual will be able to gain 

unescorted access to secure areas using 

a forged or altered TWIC. Additionally, 

the Coast Guard will conduct 

unannounced checks of the cards while 

visiting facilities and vessels. The Coast 

Guard will use handheld readers to 

check the biometrics on the card against 

the person presenting the card. These 

unannounced checks are an important 

component of the security efforts at the 

ports. 

(b). ‘‘Escorting’’/’’Unescorted Access’’

We have amended the definition of 

escorted access to clarify our intent. 

Namely, that the distinction between 

escort and unescorted access are to 

serve as performance standards, rather 

than strict definitions. We expect that, 

when in an area defined as a restricted 

area in a vessel or facility security plan, 

escorting will mean a live, physical 

side-by-side escort. Whether it must be 

a one-to-one escort, or whether there 

can be one escort for multiple persons, 

will depend on the specifics of each 

vessel and/or facility. We will provide 

additional guidance on what these 

specifics might be in a Navigation and 

Vessel Inspection Circular (NVIC). 

Outside of restricted areas, however, 

side-by-side escorting is not required, so 

long as the method of surveillance or 

monitoring is sufficient to allow for a 

quick response should an individual 

‘‘under escort’’ be found in an area 

where he or she has not been authorized 

to go or is engaging in activities other 

than those for which escorted access 

was granted. Again, we will provide 

additional guidance with more specifics 

in a NVIC. 

(c). New Hires 

We have added a new section within 

parts 104, 105, and 106 to provide 

owners/operators with the ability to put 

new hires to work once new hires have 

applied for their TWIC and an initial 

name-based check is completed. In 

order to ensure adequate security for the 

vessel and facility during this period, 

these provisions allow new hires to 

have access to secure areas for up to 30 

consecutive days, so long as they pass 

a TSA name based check and are 


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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 caseby-case basis. For example, in some 

instances, where the operating 

environment of the vessel is such that 

there is a small crew, and there is a 24- 

hour live watchstand while underway, 

we expect to view the new hires as 

accompanied when the vessel owner/ 

operator ensures that the security 

measures for monitoring and access 

control included within their Coast 

Guard-approved security plans are 

implemented. As the operating 

environment increases or becomes more 

complex, such as might be the case 

when Certain Dangerous Cargoes (CDCs) 

are present, we expect to require 

additional security measures to ensure 

that the new hires are, in fact, 

accompanied by an individual with a 

TWIC. Similar guidance will also be in 

place for larger vessels, as well as for 

facilities and OCS facilities. The NVIC 

will be released in the near future. 

In order to take advantage of this new 

hire provision, the following procedures 

must be followed: 

(1) The new hire will need to have 

applied for a TWIC in accordance with 

49 CFR part 1572 by completing the full 

enrollment process and paying the user 

fee. He or she cannot be engaged in a 

waiver or appeal process. The owner or 

operator must have the new hire sign a 

statement affirming this. 

(2) The owner or operator or the 

security officer must enter the following 

information on the new hire into the 

Coast Guard’s Homeport Web site 

(http://homeport.uscg.mil): 

(i) Full legal name, including middle 

name if one exists; 

(ii) Date of birth; 

(iii) Social security number (optional); 

(iv) Employer name and 24 hour 

contact information; and 

(v) Date of TWIC enrollment; 

(3) The new hire must present an 

identification credential that meets the 

requirements of § 101.515 of this 

subchapter; and 

(4) There must be no other 

circumstances that would cause 

reasonable suspicion regarding the new 

hire’s ability to obtain a TWIC, and the 

owner or operator or Facility Security 

Officer (FSO) must not have been 

informed by the cognizant COTP that 

the individual poses a security threat. 

This provision only applies to direct 

hires of the owner/operator; it cannot be 

used to allow temporary unescorted 

access to contractors, vendors, 

longshoremen, truck drivers (unless 

they are direct employees of the owner/ 

operator), or any other visitor. This 

provision does not apply if the new hire 

is a Company, Vessel, or Facility 

Security Officer, or is otherwise tasked 

with security duties as a primary 

assignment. 

In order for the Coast Guard and TSA 

to verify that a new hire who is awaiting 

TWIC issuance passes an initial security 

review, this provision includes a 

requirement for the owner, operator, 

Vessel Security Officer (VSO) or FSO to 

enter new hire identifying information 

into the Coast Guard’s Homeport web 

page. The Homeport web page is a 

secure location capable of 

communicating sensitive security 

information such as Vessel Security 

Plans (VSP) and Facility Security Plans 

(FSP) between industry and the Coast 

Guard. The Homeport web page address 

is http://homeport.uscg.mil. Homeport 

will then interface with the TSA system, 

and if a match to an enrollment record 

can be made, the TSA system will pass 

back to Homeport the result of the 

initial name-based check. If the result is 

that the new hire has been cleared, the 

owner/operator/security officer can put 

the new hire to work under the 

provisions of this section and any 

guidance provided by the Coast Guard 

in a forthcoming NVIC. 

TSA will begin the security threat 

assessment process as soon as the 

enrollment record is complete. 

Generally, TSA can complete an initial 

security review within 48–72 hours 

based on all of the information provided 

during enrollment. Thus, in some cases 

(where the new hire information is 

entered into Homeport three or more 

days following enrollment), the owner/ 

operator/security officer will not have to 

wait long before finding out if an 

individual has cleared the initial name 

check. We expect that Homeport will be 

able to notify owners/operators/security 

officers, via e-mail, when it has received 

an update on any of the new hires 

entered by that owner/operator/security 

officer, which will alleviate any need for 

them to continuously check in with 

Homeport. 

The new hire must have applied for 

a TWIC in accordance with 49 CFR part 

1572 by completing the full enrollment 

process and paying the user fee. The 

owner/operator must have the new hire 

sign a statement affirming the 

enrollment, payment, and that the new 

hire is not involved in an appeal or 

waiver application. The owner/operator 

must retain this statement until the new 

hire receives a TWIC. The statement 

must be produced if the Coast Guard 

requests it during an inspection or 

investigation. The new hire must also 

present to the owner or operator a form 

of identification that meets the standard 

set in 33 CFR 101.515. 

It is also important to note here that 

a new hire may be initially cleared to 

work in the secure area under the 

provisions of this section, but be 

disqualified from receiving a TWIC 

when the full threat assessment is 

complete. The results of the criminal 

history records check (CHRC) generally 

will not be fully adjudicated within 

three days, and if the adjudication 

reveals a disqualifying criminal history, 

the new hire will not be cleared to 

receive a TWIC. 

The owner/operator of regulated 

vessels or facilities is required to 

accompany new hires in secure areas, 

which includes monitoring new hires 

while they are in restricted areas of the 

vessel or facility. Monitoring has the 

same meaning here as found in 

§§ 104.285, 105.275, and 106.275 of 33 

CFR chapter I, subchapter H. 

We are also requiring owners/ 

operators of regulated vessels and 

facilities to determine that their new 

hires need access to secure areas 

immediately in order to prevent adverse 

impact to the operation of the vessel or 

facility. Owners and operators must 

identify that a hardship exists to their 

operations if their new hires are not 

allowed access. This adverse impact is 

not the impact of simply providing 

escorts for new hires, but must be 

adverse impacts to the business itself 

from not being able to employ new hires 

immediately in secure areas without 

escort. 

Owners and operators of regulated 

vessels and facilities must be assured 

that there are no other circumstances 

that would cause reasonable suspicion 

regarding the new hire’s ability to obtain 

a TWIC. This information can come 

through the normal hiring process, 

reference checks, or interviews. Also, if 

the Coast Guard, through its Captain of 

the Port (COTP), has informed the 

owner/operator that the new hire poses 

a security threat, the new hire may not 

have unescorted access to secure areas 

of the vessel or facility. Only 

individuals who pass a threat 

assessment and are issued a TWIC may 

have unescorted access to secure areas 

of the vessel or facility. 


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(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 nonpassenger 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 nonrestricted 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 nonmaritime 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 


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security incident. These amendments 

must be submitted to the cognizant 

COTP by July 25, 2007. 

We realize that there may be some 

owners and operators of vessels that 

would like the same option. However, 

vessels present a unique security threat 

over facilities in that they may not only 

be targets in and of themselves, but may 

also be used as a weapon. Due to this 

fact, we will continue to define the 

entire vessel as a ‘‘secure area,’’ making 

exception only for those special 

passenger and employee access areas 

which are discussed above. Vessel 

owners/operators need not submit an 

amendment to the VSP in order to 

implement these special areas, however 

they may do so, following the 

procedures described in part 104. 

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

Due in part to the unique operating 

requirements imposed on U.S. Offshore 

Supply Vessels (OSVs) and Mobile 

Offshore Drilling Units (MODUs) when 

operating in support of OCS facilities in 

foreign waters, we determined that we 

must change some language from the 

proposed rule. As such, we are adding 

a provision to the definition of secure 

area in § 101.105 that states that U.S. 

vessels operating under the waiver 

provision in 46 U.S.C. 8103(b)(3)(A) or 

(B) have no secure areas. These waiver 

provisions allow U.S. vessels to employ 

foreigners as crew in certain 

circumstances. The effect of this change 

is to exempt these vessels from the 

TWIC requirement while they are 

operating under the referenced waivers. 

As soon as the vessel ceases operating 

under these waiver provisions, it will be 

deemed to have secure areas as 

otherwise defined, and TWIC provisions 

will apply. 

(i). Area Maritime Security (AMS) 

Committee Members 

The NPRM proposed requiring all 

members of AMS Committees to have a 

TWIC. We recognize that large numbers 

of the members will either (1) already 

have a TWIC, due to their role within 

the security organization of a facility, or 

(2) already have undergone some type of 

comparable background screening due 

to their position as a Federal, State, or 

local law enforcement official. After 

further consideration, we believe that 

anyone not falling into one of these 

categories could be discouraged from 

volunteering to sit on an AMS 

Committee, due to the cost of obtaining 

a TWIC. This could have a detrimental 

effect on the AMS Committee, as there 

may be individuals who are experts in 

security who would be (and in some 

cases already are) valuable parts of AMS 

Committees, who would opt out of 

sitting on the Committee rather than 

assume the cost of obtaining a TWIC. 

Therefore, we have changed the final 

rule to allow AMSC members to serve 

on the AMSC after the completion of a 

name-based terrorist check from TSA. If 

an AMSC member requires unescorted 

access to secure areas of vessels or 

facilities they will be required to obtain 

a TWIC. If, however, they do not require 

unescorted access, but do need access to 

SSI, they must first pass a TSA name 

based check at no cost to the AMSC 

member. The Federal Maritime Security 

Coordinator for the member’s particular 

AMSC (i.e. COTPs) will forward the 

names of these individuals to TSA or 

Coast Guard Headquarters for clearance 

prior to sharing SSI with these 

members. 

(j). Emergency Responders 

We added a provision within 33 CFR 

101.514 to allow State and local 

emergency responders to gain access to 

secure areas without a TWIC during an 

emergency situation. Not all emergency 

responders will fall into the category of 

State or local officials. We feel it is 

imperative that these individuals be 

allowed unescorted access to secure 

areas in an emergency situation. 

Emergency responders who are not State 

or local officials are encouraged to apply 

for a TWIC. Under the existing access 

control requirements of 33 CFR 105.255, 

the owner or operator has documented 

procedures for checking credentials 

prior to allowing access and will 

maintain responsibility for all those 

granted access to a vessel or facility, 

even in an emergency situation. 

(k). Voluntary Compliance 

The provisions that would have 

allowed vessel and facility owners/ 

operators to implement voluntary TWIC 

programs have been removed. These 

provisions have been eliminated due to 

the fact that neither TSA nor the Coast 

Guard can, at this time, envision being 

in a position to approve voluntary 

compliance before the full TWIC 

program, (i.e., reader requirements) is in 

place. We will keep it in mind, 

however, as we develop our NPRM to 

repropose reader requirements. 

(l). Compliance Dates 

We have also revised the compliance 

dates slightly. Vessels will now have 20 

months from the publication date of this 

final rule to implement the new TWIC 

access control provisions. Facilities will 

still have their compliance date tied to 

the completion of initial enrollment in 

the COTP zone where the facility is 

located. This date will vary, and will be 

announced for each COTP zone at least 

90 days in advance by a Notice 

published in the Federal Register. The 

latest date by which facilities can expect 

to be required to comply will be 

September 25, 2008. Additionally, 

mariners will not need to hold a TWIC 

until September 25, 2008. Mariners may 

rely upon their Coast Guard-issued 

credential and a photo ID to gain 

unescorted access to secure areas to any 

facility that has a compliance date 

earlier than September 25, 2008. 

2. Changes From TSA’s Proposed Rule 

TSA is changing several sections of 

the proposed rule as a result of 

comments received, new legislation, 

and additional analysis. The changes 

include: (1) Establishing procedures for 

review of waiver denials by an ALJ; (2) 

applying the hazmat and TWIC appeal 

procedures to air cargo personnel; (3) 

amending the list of disqualifying 

criminal offenses; (4) expanding the 

group of aliens who meet the 

immigration standards; (5) amending 

the waiver standards for applicants 

disqualified due to mental incapacity; 

(6) amending the fees for TWIC; (7) 

revising the standard for drivers 

licensed in Mexico and Canada who 

transport hazardous materials into and 

within the United States; and (8) 

modifying the prohibitions on 

fraudulent use or manufacture of TWIC 

or access control procedures. 

(a). Review by Administrative Law 

Judge 

We noted in the NPRM that if 

legislation was enacted after publication 

of the final rule to require review by an 

Administrative Law Judge of the denial 

of waiver requests by TSA, we would 

include such a statutory mandate in the 

final rule. See 71 FR at 29421. The Coast 

Guard and Maritime Transportation Act 

of 2006, Pub. L. 109–241, was enacted 

on July 11, 2006. Section 309 of this Act 

requires the Secretary of Homeland 

Security to establish an ALJ review 

process for individuals denied a waiver 

by TSA. Accordingly, we are including 

the ALJ review procedures in new 

§ 1515.11. 

The ALJ review process set forth 

under § 1515.11 does not alter the 

substantive criteria under which TSA 

will grant or deny a waiver. Therefore, 

this provision constitutes a rule of 

agency procedure and may be 

implemented without prior notice and 

comment under the Administrative 

Procedure Act, 5 U.S.C. 553(b)(A). See 

Hurson Assoc. Inc., v. Glickman, 229 

F.3d 277 (D.C. Cir. 2000) (rule 

eliminating face-to-face process in 

agency review of requests for approval 


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

was procedural and not subject to 

notice-and-comment rulemaking). 

The new legislation requires ALJ 

review to be available for denials of 

waivers. Under the rules waivers are not 

available for determinations under 

§ 1572.107 that an applicant poses a 

security threat, which usually is based 

on an intelligence-related check 

involving classified information. 

However, we have considered that there 

appears to be an intent that we provide 

for an ALJ review of such 

determinations, considering, for 

example, that the statute provides for 

ALJ review of classified information, 

which rarely is relevant to waivers 

under the current rules. We have also 

considered that the decision to 

determine whether an applicant poses a 

threat under § 1572.107 is largely a 

subjective judgment based on many 

facts and circumstances. The same is 

true for the decision to grant or deny a 

waiver of the standards in §§ 1572.103 

(criminal offenses), aliens who are in 

TPS under 1572.105, or 1572.109 

(mental capacity). Accordingly, we are 

providing for ALJ review of both a 

determination that the applicant does 

not meet the standards in § 1572.107, 

and a denial of a waiver of certain 

standards in §§ 1572.103, 1572.105, and 

1572.109. 

An applicant who has received an 

Initial Determination of Threat 

Assessment based on § 1572.107 may 

first appeal that determination using the 

procedures in new § 1515.9. If after that 

appeal TSA continues its determination 

that the applicant is not qualified, the 

applicant may seek ALJ review under 

§ 1515.11. 

On the other hand, the determination 

that an applicant does or does not have 

a disqualifying criminal offense listed in 

§ 1572.103, immigration status in 

§ 1572.105, or mental capacity described 

in § 1572.109, largely involves an 

analysis of the legal events that have 

occurred. Such analyses depend mainly 

on review of legal documents. We have 

retained in § 1515.5 the paper hearing 

process for the appeal of an Initial 

Determination that an applicant is not 

qualified under those sections. At the 

end of that appeal, if TSA issues a Final 

Determination that the applicant is not 

qualified under one of those sections, 

the applicant may seek review in the 

Court of Appeals. At any time, however, 

the applicant may seek a waiver of 

certain standards in those sections on 

the basis that, notwithstanding a lack of 

qualification, the applicant asserts that 

he or she does not pose a security threat 

and thus seeks to waive the subject 

standards. The applicant initiates the 

request for a waiver using the 

procedures in § 1515.7. If a waiver is not 

granted, the applicant may seek review 

by an ALJ under § 1515.11. 

For consistency, we are providing the 

same review processes for hazardous 

materials endorsement (HME) 

applicants that we are providing for 

TWIC applicants. 

Paragraph 1515.11(a) of this new 

section specifies that the new process 

applies to applicants who are seeking 

review of an initial decision by TSA 

denying a request for a waiver under 

§ 1515.7 or who are seeking review of a 

Final Determination of Threat 

Assessment issued under § 1515.9. 

Section 1515.11(b) allows the 

applicant 30 calendar days from the 

date of service of the determination to 

request a review. The review will be 

conducted by an ALJ who possesses the 

appropriate security clearances to 

review classified information. The rule 

sets forth the information that the 

applicant must submit. This section 

clarifies that the ALJ may only consider 

evidence that was presented to TSA at 

the time of application in the request for 

a waiver or the appeal. If the applicant 

has new evidence or information to 

support a request for waiver, the 

applicant must file a new request for a 

waiver under § 1515.7 or a new appeal 

under § 1515.9 and the pending request 

for review will be dismissed. Section 

1515.11 provides detailed requirements 

for the conduct of the review, such as 

requests for extension of time and duties 

of the ALJ. 

In accordance with the Coast Guard 

and Maritime Transportation Act, this 

section provides for ALJ review of 

classified information on an ex parte, in 

camera basis and consideration of such 

information in rendering a decision if 

the information appears to be material 

and relevant. 

Paragraph 1515.11(f) provides that 

within 30 calendar days after the 

conclusion of the hearing, the ALJ will 

issue an unclassified decision to the 

parties. The ALJ may issue a classified 

decision to TSA. The ALJ may decide 

that the decision was supported by 

substantial evidence on the record or 

that the decision was not supported by 

substantial evidence on the record. If 

neither party requests a review of the 

ALJ’s decision, TSA will issue a final 

order either granting or denying the 

waiver or the appeal. 

Paragraph 1515.11(g) describes the 

process by which a party may petition 

for review of the ALJ’s decision to the 

TSA Final Decision Maker. The TSA 

Final Decision Maker will issue a 

written decision within 30 calendar 

days after receipt of the petition or 

receipt of the other party’s response. 

The TSA Final Decision Maker may 

issue an unclassified opinion to the 

parties and a classified opinion to TSA. 

The decision of the TSA Final Decision 

Maker is a final agency order. 

Paragraph 1515.11(h) states that an 

applicant may seek judicial review of a 

final order of the TSA Final Decision 

Maker in accordance with 49 U.S.C. 

46110, which provides for review in the 

United States Court of Appeals. Under 

sec. 46110 a party has 60 days after the 

date of service of the final order to 

petition for review. 

(b). Appeal Procedures for Air Cargo 

Personnel 

In the final rule we are adding the 

appeal procedures that currently apply 

to air cargo workers codified at 49 CFR 

parts 1540 to 1515. In the NPRM TSA 

stated that it may use the procedures in 

part 1515 for other security threat 

assessments, such as for air cargo 

personnel. See 71 FR at 29418. At that 

time the air cargo proposed rule had 

been published but was not yet final, 

and it proposed to use appeal 

procedures that were essentially the 

same as for HME applicants. The air 

cargo rule has now been made final. See 

71 FR 30478 (May 26, 2006). Because 

part 1515 was not yet final in the air 

cargo rule, we placed the appeal 

procedures for the air cargo security 

threat assessment into part 1540 subpart 

C, along with other procedures that 

apply to air cargo threat assessments. In 

a further effort to harmonize security 

threat assessments, we are now moving 

the appeal procedures for air cargo 

personnel to part 1515. For consistency 

with the TWIC and HME processes we 

are providing for review by an ALJ as 

described above. 

We are also revising part 1540 subpart 

C to harmonize more with part 1572. 

Thus, we are replacing ‘‘individual’’

with ‘‘applicant’’ to refer to the person 

who is applying for a security threat 

assessment. We are also revising 

§ 1540.205 to read essentially the same 

as § 1572.21 for TWIC, because it serves 

the same function. Note that while the 

procedures for TWIC refer to CHRCs and 

other checks, the procedures for air 

cargo personnel refer only to 

intelligence-related checks, because 

they are not subject to the other checks 

conducted on TWIC applicants. 

(c). Disqualifying Criminal Offenses. 

In this final rule, the list of criminal 

acts that disqualify an applicant from 

holding an HME under 49 CFR 1572.103 

now applies to TWIC applicants. We 

believe equal treatment for 

transportation workers is appropriate 

and consistent with the pertinent 


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Federal Register / Vol. 72, No. 16 / Thursday, January 25, 2007 / Rules and Regulations 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 § 1572.103(a), which 

are permanently disqualifying. 

Applicants convicted of these crimes are 

not eligible for a waiver. As we 

proposed to do in the NPRM, TSA is 

adding conspiracy to commit these 

crimes to the list of crimes that are not 

subject to a waiver request. TSA has 

determined that a conviction of 

conspiracy to commit espionage, 

treason, sedition, or terrorism is 

indicative of a serious, ongoing, 

unacceptable risk to security and should 

not be waived under any circumstances. 

TSA is changing the language in (a)(4) 

from ‘‘a crime listed in 18 U.S.C. 

Chapter 113B—Terrorism’’ to ‘‘a federal 

crime of terrorism as defined in 18 

U.S.C. 2332b(g)’’ or conspiracy to 

commit such crime, or comparable State 

law. Section 2332b(g) is a definitional 

list that is broader and more explicit 

than the crimes punished directly in 

Chapter 113B. We are making this 

change to more accurately capture all 

pertinent terrorism-related crimes. 

Although we intended to be as inclusive 

as possible with the previous language, 

experts at the Department of Justice 

advise that the new language more 

accurately captures the relevant 

criminal acts. TSA is adding felony 

bomb threat in paragraph (a)(9) as a 

permanent disqualifier including 

maliciously conveying false information 

concerning the deliverance, placement, 

or detonation of an explosive or other 

lethal device against a state or 

government facility, public 

transportation system or an 

infrastructure facility. TSA is including 

this crime because it is, in essence, a 

threat to commit an act of terrorism. We 

note that we have disqualified an 

applicant with such crime under the 

authority of current paragraph (b)(6) 

dishonesty, misrepresentation, or fraud. 

To be clear that this crime is a 

permanent disqualifier, we are adding it 

as an independent offense in 

§ 1572.103(a)(9). This offense includes 

making any threat, or maliciously 

conveying false information knowing 

the same to be false, concerning the 

deliverance, placement, or detonation of 

an explosive or other lethal device in or 

against a place of public use, a state or 

government facility, a public 

transportation system, or an 

infrastructure facility. 

Paragraph 1572.103(a)(9) is based in 

part on conduct prohibited by several 

federal crimes. The first is 18 U.S.C. 

844(e), which is found in chapter 40 

(Explosive Materials) of the federal 

criminal code. Section 844(e) 

criminalizes the use of the mail, 

telephone, or other instrument of 

interstate or foreign commerce to 

willfully make any threat or maliciously 

convey false information knowing the 

same to be false, concerning an attempt 

to kill, injure, or intimidate any 

individual or unlawfully damage or 

destroy any building, vehicle, or other 

real or personal property by means of an 

explosive. This crime is already 

disqualifying under paragraph (a)(7). 

For inclusion in the list of disqualifying 

crimes, TSA modified this description 

to broaden it beyond a threat made 

through an instrument of interstate or 

foreign commerce. This change provides 

a disqualification for purely intrastate 

conduct that results in a felony 

conviction under State law. TSA also 

modified the wording found in section 

844(e) to include threats of use of lethal 

weapons in addition to fire and 

explosives, such as biological, chemical, 

or radiological weapons. Threats to use 

these weapons are prohibited by other 

sections of the federal criminal code. 

See, e.g., 18 U.S.C 175 (Biological 

weapons); 18 U.S.C. 229 (Chemical 

Weapons); and 18 U.S.C. 2332h. 

TSA has revised the language of 

paragraph (b) to clarify that the crimes 

listed are disqualifying if either of the 

following are true: (1) The applicant’s 

date of conviction is within seven years 

of the date of application; or (2) the 

applicant was incarcerated for that 

crime and was released from 

incarceration within five years of the 

date of application. 

TSA is adding the offense of 

fraudulent entry into seaport secure 

areas to the list of interim disqualifiers. 

This is a new provision in 18 U.S.C. 

1036 that we believe is particularly 

relevant to this rulemaking and any 

TWIC applicant. 

TSA is also clarifying in paragraph 

(b)(2)(iii) that money laundering is an 

interim disqualifier because it is 

encompassed under the crimes of 

dishonesty and fraud and can be a 

means of funding terrorism. It is known 

that criminals obtain money from the 

illegal sale of drugs, firearms and other 

contraband, launder the money to hide 

its origin and then funnel this money to 

terrorist groups. The money laundering 

disqualifier is limited to convictions 

where the laundering was for proceeds 

of other disqualifying criminal activities 

such as drugs or weapon sales. 

TSA is also clarifying that welfare 

fraud and passing bad checks will not 

be considered crimes of dishonesty, 

fraud, or misrepresentation for purposes 

of paragraph (b)(2)(iii). In some states, 

conviction for passing a bad check of 

$100 is a felony and so would be 

disqualifying for an HME or TWIC 

applicant. Similarly, a conviction for 

welfare fraud can be a felony under state 

law, depending on the circumstances of 

the case. TSA believes that these crimes 

generally do not have a nexus to 

terrorism and therefore should not be 

disqualifying under MTSA. 

TSA is moving the definitions of 

‘‘explosive,’’ ‘‘firearm,’’ and 

‘‘transportation security incident’’ from 

§ 1572.3 to § 1572.103, where the terms 

are used. This should help to eliminate 

uncertainty about the crimes that are 

disqualifying. In addition, TSA is 

adopting clarifying language concerning 

the kind of activity that constitutes a 

‘‘transportation security incident.’’ As 

required in § 7105 of SAFETEA–LU, 


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

3The 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. 

4The 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. 

codified at 47 U.S.C. 5103a(g)(3), the 

definition now makes clear that 

nonviolent labor-management activity is 

not considered a disqualifying offense. 

The list of disqualifying crimes in 

§ 1572.103 applies equally to TWIC and 

HME applicants, thus the amendments 

apply to both. 

(d). Immigration standards 

The NPRM was drafted to permit nonresident 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 States3.’’ 46 U.S.C. 70105(c). 

Under this final rule, all applicants for 

TWICs must be lawfully present in the 

country. Each of the permissible classes 

listed in § 1572.105 has, as a basis, 

lawful presence in the United States. 

Additionally, if the duration of an 

applicant’s legal status as of the date of 

enrollment does not meet or exceed the 

period of validity of the credential, five 

years, we have concerns about 

permitting the applicant to receive a 

TWIC4. 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. 

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 


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

5Note 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. 

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 fiance ́s and 

minor children of fiance ́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. 

Third, in response to many comments 

about the use of foreign professionals in 

the maritime industry for specialty 

work, we are permitting certain lawful 


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

nonimmigrants with restricted 

authorization to work in the United 

States to apply for a TWIC. There is a 

longstanding practice of employing nonU.S. citizens to complete specialized 

maritime tasks, such as maintaining 

vessel engines and motors. In addition, 

many international maritime companies 

transfer staff from abroad into the 

United States for short or long-term 

periods, and many of these individuals 

must work at maritime facilities or on 

vessels. Denying this segment of the 

industry the opportunity to apply for a 

TWIC could adversely impact maritime 

operations and economic vitality. 

However, to mitigate our concerns about 

the inability to complete a thorough 

initial and perpetual threat assessment 

on individuals who have not lived in 

the United States for any significant 

period of time and who are authorized 

to remain in the United States for less 

than five years, we are adding 

requirements for employers and affected 

workers to return the TWIC to TSA 

when the job is completed or the worker 

otherwise ceases employment with the 

company. 

We received a comment concerning 

aliens who are religious personnel in 

valid R–1 lawful nonimmigrant status 

with restricted employment 

authorization. The commenter noted 

that vessel crew members may request 

spiritual guidance or religious services 

when their vessel docks at a port in the 

United States, and religious workers in 

valid R–1 status should be permitted to 

apply for a TWIC to board the vessel. 

Seafarer Welfare Advocates are eligible 

for TWICs as long as they meet the 

TWIC rulemaking eligibility 

requirements; however, there are no 

exemptions for aliens holding R–1 visas. 

We believe that individuals with R–1 

visas can be escorted because any 

individual providing religious services 

to crew members on a vessel would be 

on board the vessel for relatively short 

periods of time and would most likely 

be in the company of TWIC holders 

during that time. While we do not 

believe that these individuals need to 

hold a TWIC to carry out their religious 

or spiritual functions, they may apply 

and will be issued TWICs if they meet 

the eligibility requirements. 

Fourth, we are permitting students of 

the United States Maritime Academy 

and comparable State maritime colleges 

in valid M–1 lawful nonimmigrant 

status to apply for a TWIC. These 

individuals clearly have a need for 

unescorted access to maritime facilities 

and vessels as they complete their 

vocational training in the United States. 

Fifth, we are adding individuals who 

are in TPS to the group of applicants 

who may apply for a waiver. Temporary 

Protected Status is a temporary 

immigration status granted to eligible 

nationals of designated countries. The 

Secretary may designate a country for 

TPS when it is determined that (1) there 

is an ongoing armed conflict in the state 

and, due to that conflict, return of 

nationals to that state would pose a 

serious threat to their personal safety; 

(2) the state has suffered an 

environmental disaster resulting in a 

substantial, temporary disruption of 

living conditions, the state is 

temporarily unable to handle adequately 

the return of its nationals, and the state 

has requested TPS designation; or (3) 

there exist other extraordinary and 

temporary conditions in the state that 

prevent nationals from returning in 

safety. 

TPS beneficiaries are not required to 

leave the United States and may obtain 

work authorization for the initial TPS 

period and for any extensions of the 

designation. TPS does not automatically 

lead to permanent resident status. A 

TPS designation may be effective for a 

minimum of 6 months and a maximum 

of 18 months. Before the end of the TPS 

designation period, the conditions that 

gave rise to the TPS designation are 

reviewed. Unless a determination is 

made that those conditions are no 

longer met, the TPS designation will be 

extended for 6, 12, or 18 months. If the 

conditions that led to the TPS 

designation are no longer met, the TPS 

designation is terminated. Designations, 

extensions, terminations and other 

documents regarding TPS are published 

in the Federal Register. Currently, 

nationals of Somalia, Sudan, Burundi, 

Honduras, Nicaragua, and El Salvador 

have TPS status in the United States. 

In many cases, TPS status for a 

particular country will remain in place 

for several years. Thus, nationals of 

these countries may be in the United 

States for a decade or more and 

establish a record that TSA can 

effectively review for a security threat 

assessment. Based on this and the 

unrestricted work authorization, we 

have determined that under certain 

circumstances, TPS recipients should be 

permitted to hold a TWIC. Our ability to 

complete a thorough threat assessment 

and the record that is disclosed during 

the threat assessment will be critical 

factors in determining if a waiver 

should be granted to a TPS recipient. In 

addition, letters of reference from 

employers, teachers, and religious or 

spiritual personnel are also important to 

reach a determination on a waiver. Part 

1515 lists the information TSA reviews 

in making waiver determinations, which 

now also apply to TPS recipients. 

Finally, on October 17, 2006 Congress 

passed the John Warner National 

Defense Authorization Act for Fiscal 

Year 2007 (P.L. 109–364). In that Act, 

Congress amended 46 U.S.C. 8103 to 

permit an alien allowed to be employed 

in the U.S. under the Immigration and 

Nationality Act who meets additional 

requirements for service as a steward 

aboard large passenger vessels to obtain 

an MMD. Since all MMD holders must 

obtain a TWIC, we have extended this 

statutory requirement to TWIC as well. 

Individuals who would satisfy the 

statutory requirements would most 

likely, if not always, possess a C–1/D 

Crewman Visa. The C–1/D visa has been 

added to the list of acceptable restricted 

nonimmigrant visas. 

Table 2 indicates the types of visas 

that a lawful nonimmigrant with a 

restricted visa must hold in order to 

demonstrate eligibility to apply for a 

TWIC. 

TABLE 2.—TYPES OF VISAS THAT A NONIMMIGRANT WITH A RESTRICTED VISA MUST HOLD

Visa Nonimmigrant classifications Description/information 

C–1/D ........ Combined Transit and Crewman Visa.

8 CFR 214.2(c)(D) ....................

For alien crewmen serving in good faith in a capacity required for normal operation and service 

on board a vessel who intends to land temporarily and solely in pursuit of his calling as a 

vessel crewman. 

E–1 ............ Treaty Trader (see 8 CFR 

214.2(e)(1)).

For nationals of a country with which the United States maintains a treaty of commerce and 

navigation who is coming to the United States to carry on substantial trade, including trade in 

services or technology, principally between the United States and the treaty country, or to develop and direct the operations of an enterprise in which the national has invested. The employee must intend to depart the United States upon the expiration or termination of E–1 status. 


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

6The 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. 

TABLE 2.—TYPES OF VISAS THAT A NONIMMIGRANT WITH A RESTRICTED VISA MUST HOLD—Continued 

Visa Nonimmigrant classifications Description/information 

E–2 ............ Treaty Investor (see 8 CFR 

214.2(e)(2)).

An alien employee of a treaty investor, if otherwise admissible, may be classified as E–2 if the 

employee is in or is coming to the United States to engage in duties of an executive or supervisory character, or, if employed in a lesser capacity, the employee has special qualifications 

that make the alien’s services essential to the efficient operation of the enterprise. The employee must have the same nationality as the principal alien employer. In addition, the employee must intend to depart the United States upon the expiration or termination of E–2 status. 

E–3 ............ Australian in Specialty Occupation.The E–3 is a new visa category only for Australians coming to the U.S. to work temporarily in a 

specialty occupation. 

H–1B ......... Specialty Occupations (see 8 

CFR 214.2(h)(4)).

Persons who will perform services in a specialty occupation which requires theoretical and practical application of a body of highly specialized knowledge and attainment of a baccalaureate 

or higher degree or its equivalent (in the specialty) as a minimum requirement for entry into 

the occupation in the US. 

H–1B1 ....... Free Trade Agreement (FTA) 

Professional Visa (H–1B1).

Foreign nationals of countries which have Free Trade Agreements with the United States and 

are engaged in a specialty occupation are eligible for the H–1B1 FTA Professional Visa [Free 

Trade Agreement (FTA) Professional Visa]. A U.S. employer must furnish a job letter specifying the details of the temporary position (including job responsibilities, salary and benefits, 

duration, description of the employing company, qualifications of the applicant) and confirming 

the employment offer. 

L–1 ............ Executive, managerial ............... An alien who within the preceding three years has been employed abroad for one continuous 

year by a qualifying organization may be admitted temporarily to the United States to be employed by a parent, branch, affiliate, or subsidiary of that employer in a managerial or executive capacity, or in a position requiring specialized knowledge. 

O–1 ........... Extraordinary Ability or Achievement.An alien who has extraordinary ability in the sciences, arts, education, or athletics, which has 

been demonstrated by sustained national or international achievement. 

TN ............. North American Free Trade 

Agreement (NAFTA) visas for 

Canadians and Mexicans.

The nonimmigrant NAFTA Professional (TN) visa allows citizens of Canada and Mexico, as 

NAFTA professionals, to work in the United States. 

M–1 ........... Vocational student .................... This visa category is for a fixed time needed to complete the course of study and training. For 

purposes of the final rule, only students who are attending the U.S. Merchant Marine Academy or comparable State maritime school and hold this visa are permitted to apply for a 

TWIC. 

We are making an additional change 

to the application information required 

of TWIC applicants who are not U.S. 

nationals. In 49 CFR 1572.17, we are 

requiring all aliens to bring to 

enrollment the documents that verify 

the immigration status they are in as of 

the date of enrollment. We will examine 

the documents to ensure that the 

applicant is eligible to apply for a TWIC 

under the immigration standards and 

then scan the documents into the TSA 

system so that they become part of the 

enrollment record. 

In addition, we are requiring drivers 

with commercial licenses from Canada 

to provide a Canadian passport at 

enrollment, if they do not hold a Free 

and Secure Trade (FAST) card 6. We 

know that Canadian TWIC applicants 

who hold a FAST card have completed 

a thorough background check by the 

Canadian government. However, 

Canadian provinces do not always 

require Canadian citizenship or in some 

cases, lawful presence, when issuing a 

drivers license. Therefore, we do not 

believe it is advisable to issue a TWIC 

based solely on a Canadian driver’s 

license. We are not requiring this of 

Mexican-licensed drivers who apply for 

a TWIC because they must obtain border 

crossing documents to enter the United 

States, which are issued after the 

Mexican government has completed a 

review of the individual and determined 

they are Mexican citizens or are 

lawfully present in Mexico. 

(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 caseby-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 


ycherry on PROD1PC64 with RULES2
3506 Federal Register / Vol. 72, No. 16 / Thursday, January 25, 2007 / Rules and Regulations 

7While the proposed rule text at § 1572.503(2) 

indicated that the Reduced TWIC Fee included both 

the Enrollment Segment and the Reduced Card 

Production/STA Segment, it erroneously listed the 

fee at $50. The total for this fee was correctly stated 

in the preamble as $95. See 98 FR at 29045. 

8 If the FBI changes its fee in the future, TSA will 

collect the amended fee. 

9While 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. 

performing the security threat 

assessment or the background records 

check, or providing the credential. 

Section 520 requires that any fee 

collected must be available only to pay 

for the costs incurred in providing 

services in connection with performing 

the security threat assessment, or the 

background records check, or providing 

the credential. The funds generated by 

the fee do not have a limited period of 

time in which they must be used. They 

can be used until they are fully spent. 

TSA has also established the fees in this 

final rule pursuant to the requirements 

of the General User Fee Statute (31 

U.S.C. 9701), which requires fees to be 

fair and based on: (1) Costs to the 

government; (2) the value of the service 

or thing to the recipient; (3) public 

policy or interest served; and (4) other 

relevant facts. 

In this final rule, TSA uses slightly 

different terminology to describe the 

three types of fees and their segments 

than was used in the NPRM. The 

Standard TWIC Fee is the fee that an 

applicant would pay to obtain or renew 

a TWIC. The Standard TWIC Fee 

contains the following segments: 

• Enrollment Segment (referred to as 

the ‘‘Information Collection/Credential 

Issuance Fee’’ in the NPRM), 

• Full Card Production/Security 

Threat Assessment (STA) Segment 

(referred to as the ‘‘Threat Assessment/ 

Credential Production Fee’’ in the 

NPRM), and 

• FBI Segment (referred to as the ‘‘FBI 

Fee’’ in the NPRM). 

The Reduced TWIC Fee is the fee an 

applicant would pay to obtain a TWIC 

when the applicant has undergone a 

comparable threat assessment in 

connection with an HME, a FAST card, 

or other threat assessment, as provided 

in § 1572.5(e), or holds an MMD or 

License as provided in § 1572.19(b). The 

Reduced TWIC fee is made up of the 

following segments: 

• Enrollment Segment, and 

• Reduced Card Production/STA 

Segment (referred to as the ‘‘reduced fee 

for the Security Threat Assessment/ 

Credential Production Fee’’ in the 

NPRM). 

The Card Replacement Fee is the fee 

that an applicant would pay to replace 

a credential that has been lost, stolen, or 

damaged and is made up of the Card 

Replacement Segment. 

In the TWIC NPRM, TSA proposed to 

set the Standard TWIC Fee at $129–149, 

including the Enrollment Segment of 

$45–65, the Full Card Production/ 

Security Threat Assessment (STA) 

Segment of $62, and the FBI Segment of 

$22. TSA proposed that the Reduced 

TWIC Fee be set at $95–115, including 

the Enrollment Segment of $45–65 and 

the Reduced Card Production/STA 

Segment of $50.7 TSA proposed that the 

Card Replacement Fee, composed of the 

Card Replacement Segment, be set at 

$36. See 71 FR at 29405, 29428–29431. 

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. 

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: 

TABLE 3.—TWIC PER PERSON FEE SEGMENTS—NPRM VS. FINAL RULE

NPRM Final rule $ Increase % Increase 

Standard TWIC Fee 

Enrollment Segment ........................................................................................ $45–$65 $45–$65 

Full Card Production/STA Segment (for Individuals requiring a full STA) ...... 62 72 $10 

FBI Segment: ................................................................................................... 22 22 

Total .......................................................................................................... 129–149 139–159 10 7.86–6.7 

Reduced TWIC Fee 

Enrollment Segment ........................................................................................ 45–65 45–65 

Reduced Card Production/STA Segment (for Individuals not requiring a full 

STA): ............................................................................................................ 50 62 12 

Total .......................................................................................................... 95–115 107–127 12 12.6–10.4 

Card Replacement Fee 

Card Replacement Segment ........................................................................... 36 60 9 24 66.7 

No applicant will be required to pay 

a fee until after TSA publishes this 

notice in the Federal Register. 

Cost Components 

The NPRM identified the cost 

components from which the proposed 

fees were calculated. These are the same 

components that were used to calculate 

the final fees. However, the fees 

themselves have changed for the reasons 

described in this section. Since 

publication of the NPRM, the TWIC 

program has reevaluated the cost 

estimates that drive the TWIC fees. 

Table 4 lists the cost components of the 

TWIC Program as estimated for the 

NPRM and compares them to the costs 

estimated for the final rule. These cost 

components are used to derive the 

TWIC fees that must be collected to 

fully recover program costs. 


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

10While 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. 

11The Threat Assessments, IDMS, Card 

Production and Program Support Components 

makeup the Card Production/STA and the FBI 

Segments. 

12While 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. 

13The Threat Assessment cost component 

includes the FBI Segment of the Standard TWIC 

Fee. 

14As 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. 

15As 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. 

TABLE 4.—5-YEAR TOTAL TWIC COST COMPONENTS—NPRM VS. FINAL RULE

Cost components NPRM Final rule Percent 

change 

Standard 

TWIC fee 

Reduced 

TWIC fee 

Card replacement fee 

Enrollment/Issuance ............................. $65,212,285 $65,980,199 1 X X X10

Threat Assessments 11 ........................ 42,463,118 32,120,927 ¥24 X X12 ........................

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. 

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. 

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. 

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 


ycherry on PROD1PC64 with RULES2
3508 Federal Register / Vol. 72, No. 16 / Thursday, January 25, 2007 / Rules and Regulations 

16 49 U.S.C. 5103a(h). 

17HSPD–12 requires Federal agencies and their 

contractors to adopt an identity management and 

credentialing system that uses biometrics. 

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. 

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. 

In this final rule, for administrative 

purposes, we are reprinting the entire 

part 1572. We are making only a couple 

of changes to § 1572.203, however. We 

are changing its title to more clearly 

reflect its scope, to ‘‘Transportation of 

explosives from Canada to the United 

States via railroad carrier.’’ In 

§ 1572.203(b) we are changing the 

definition of ‘‘Customs Service’’ to 

‘‘Customs and Border Protection (CBP)’’

to reflect the reorganization of the U.S. 

Customs Service under the Homeland 

Security Act of 2002. 

(h). Compliance and Enforcement 

Matters 

We are adding a new section. (49 CFR 

1570.7) to make it clear that it is a 

violation of this rule, and other 

applicable federal laws, to circumvent 

or tamper with the access control 

procedures. This section also clarifies 

that it is a violation for any person to 

use or attempt to use a credential that 

was issued to, or a security threat 

assessment conducted for, another 

person. In addition, no person may 

make, cause to be made, use, or cause 

to use, a false or fraudulently-created 

TWIC or security threat assessment 

issued or conducted under this 

subchapter. Finally, it is a violation of 

this rule, and other applicable federal 

laws, for any person to cause or attempt 

to cause another person to violate these 

procedures. Violations of any provision 

of this rule may be subject to such civil, 

criminal or administrative actions as are 

authorized under federal law. 

Note that the acts identified in 

§ 1570.7 may also be violations of 

Federal criminal law, such as 18 U.S.C. 

701 (Official badges, identification 

cards, other insignia), 18 U.S.C. 1001 

(Statements or entries generally), 18 

U.S.C. 1028 (Fraud and related activity 

in connection with identification 

documents and information), 18 U.S.C. 

1029 (Fraud and related activity in 

connection with access devices). In 

appropriate cases, TSA will refer to the 

Department of Justice (DOJ) matters for 

criminal investigation and, if 

appropriate, criminal prosecution. 

Section 1570.9 is being added to make 

clear that a person must allow his or her 

TWIC to be inspected upon request of 

an appropriate official. For clarification 

purposes, Coast Guard has provided a 

similar requirement in 33 CFR 

101.515(d) adopting the same language 

as § 1570.9. 

As discussed in section C.4. of this 

preamble, § 1570.11, Compliance, 

inspection, and enforcement, was 

proposed in the NPRM as § 1572.41. 

D. Anticipated Future Notices and 

Rulemaking 

1. Notices 

We will publish several notices in the 

Federal Register to facilitate 

implementation of the TWIC program. 

Specifically, a notice will be published: 

(a) establishing the fees for the TWIC, 

as stated above in C.2(f); 

(b) for each COTP zone, prior to 

beginning the enrollment period; and 

(c) for each COTP zone, 90-days prior 

to requiring compliance with these 

regulations. 

2. Rulemaking 

In the future we will issue another 

NPRM to propose card reader 

requirements for MTSA-regulated 

vessels and facilities. It will be issued 

with a comment period that is long 

enough for all interested persons to 

reasonably be able to provide comment, 

and it will announce public meetings in 

a variety of places. We cannot, at this 

time, make any definitive statement on 

where those places will be, but we will 

consider the locations suggested by 

commenters and inform the public of 

upcoming meeting information in 

advance in the Federal Register. 

E. Summary of TWIC Process Under the 

Final Rule 

The TWIC program was developed to 

improve identity management and 

credentialing shortcomings that exist in 

segments of the transportation industry. 

TSA evaluated a variety of technologies, 

used field testing, and to the extent 

possible, incorporated the basic tenets 

of Homeland Security Presidential 

Directive 12 (HSPD–12) 17 to arrive at 

the credential and enrollment process 

implemented in this program. The 

standards for the program are to ensure 

that the credentialing processes: (1) Are 

administered by accredited providers; 

(2) are based on sound criteria for 

verifying an individual’s identity; (3) 

include a credential that is resistant to 

fraud, tampering, counterfeiting and 

terrorist exploitation; and (4) ensure that 

the credential can be quickly and 

electronically authenticated. 

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 


ycherry on PROD1PC64 with RULES2
Federal Register / Vol. 72, No. 16 / Thursday, January 25, 2007 / Rules and Regulations 3509 

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. 

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 ‘‘preenroll’’ online to reduce the time 

needed to complete the entire 

enrollment process at an enrollment 

center. The convenience of preenrollment 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 preenrolling, 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. 

At the enrollment center, applicants 

who pre-enroll must provide documents 

to verify their identity, confirm that the 

information provided during preenrollment 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 preenroll, 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 preenrollment 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, 


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19We request comments on changes to the card 

replacement fee in Section VI below. 

enrollment data is stored only in the 

TSA system, and is stored there as 

encrypted data. The TSA system 

contains many feedback mechanisms to 

validate the transmission and receipt of 

data at key points in the process. The 

status of each transmission is recorded 

within the system. 

As discussed in the TWIC NPRM (71 

FR 29402), during TSA’s Prototype 

testing phase of the program, the 

average time needed for an applicant 

who pre-enrolled to complete 

enrollment was 10 minutes, 21 seconds. 

TSA expects that it will take 

approximately fifteen minutes to 

complete enrollment of applicants who 

do not pre-enroll. 

TSA and Coast Guard plan to use a 

phased enrollment approach based on 

risk assessment and cost/benefit 

analysis to implement the program 

nationwide. Locations that are 

considered critical and provide the 

greatest number of individual applicants 

will be among the earliest enrollment 

sites. As stated above, TSA will publish 

a notice in the Federal Register 

indicating when enrollment at a specific 

location will begin and when it is 

expected to terminate. In addition, DHS 

will publish a notice in the Federal 

Register indicating the compliance date 

for each COTP zone. This notice will be 

published at least 90 days prior to the 

compliance date. There are 

approximately 130 locations where TSA 

plans to enroll applicants. TSA and 

Coast Guard will work closely with the 

maritime industry to ensure that 

owners/operators and workers are given 

as much notice as possible of the 

commencement of enrollment at their 

location. (See the discussion of 

§ 1572.19 below for additional 

information on the timing of 

enrollment.) TSA will use a 

combination of fixed and mobile 

enrollment stations to make the 

enrollment process as efficient as 

possible for applicants and owners/ 

operators. 

2. Adjudication of Security Threat 

Assessment 

Following enrollment, the TSA 

system sends pertinent parts of the 

record to various sources so that 

appropriate terrorist threat, criminal 

history, and immigration checks can be 

performed. When the checks are 

completed, TSA makes a determination 

whether to issue a TWIC to the 

applicant and notifies the applicant of 

that decision. If the applicant is deemed 

to be qualified, the TSA system notifies 

the credential production portion of the 

system to create a credential. TSA sends 

the applicant a Determination of No 

Security Threat via U.S. mail, and the 

TSA system notifies the applicant when 

the credential is ready to be retrieved 

from the enrollment center. 

Notifications from the TSA system that 

a credential is ready for pick-up will be 

through e-mail or voice mail, depending 

on the preference the applicant 

expresses on the application. 

If TSA determines that the applicant 

is not qualified, TSA sends an Initial 

Determination of Threat Assessment to 

the applicant via U.S. mail, with 

information concerning the nature of the 

disqualification, and how the applicant 

may appeal the determination or apply 

for a waiver of the standards. If the 

applicant proceeds with an appeal or 

application for waiver that is successful, 

TSA will notify the applicant 

accordingly and the credential 

production process begins. (The appeal 

and waiver processes are discussed in 

greater detail below in the discussion of 

49 CFR part 1515.) 

3. Credential Production and Delivery 

If the applicant is deemed by TSA to 

be qualified to receive a TWIC, the TSA 

system generates an order to produce a 

credential. The TWIC is produced at a 

government credential production 

facility. The face of the TWIC credential 

contains the applicant’s photograph, 

name, TWIC expiration date, and a 

unique credential number. In addition, 

the credential will store a reference 

biometric, a personal identification 

number (PIN) selected by the applicant, 

a digital facial image, an expiration date, 

and a Federal Agency Smart Credential 

number. The PIN can subsequently be 

used as an additional security factor in 

authenticating identity and authorizing 

use of the credential; or it can be used 

as the primary verification tool if the 

biometric is inoperative for some 

reason. 

4. Receiving the Credential 

The TSA system will notify the 

applicant when the credential is ready, 

and what if any additional steps the 

applicant must take to receive the 

credential. Once the enrollment and 

issuance process is completed, the 

credential is activated and is ready to be 

presented at a facility or vessel for use 

as an access control tool. The TWIC 

security threat assessment and 

credential are valid for five years, unless 

information is discovered that causes 

TSA to revoke the credential. 

5. Lost, Damaged, or Stolen TWICs 

Replacement TWICs are available if a 

credential is lost, stolen, or damaged. As 

soon as a TWIC holder becomes aware 

that his credential is missing or 

damaged, he must report this fact by 

calling the TWIC Call Center which will 

be open 24 hours per day, 7 days a 

week. TSA will post the Call Center 

number on the TWIC web site as soon 

as it is available, and it will be posted 

at all enrollment centers and kiosks. The 

Center follows a standard process to 

revoke the credential, and order printing 

and transmission of a replacement. TSA 

adds the lost, damaged or stolen 

credential to the ‘hotlist,’ which 

includes the Smart Card number of all 

credentials that TSA has revoked. 

Applicants must pay a fee of $3619 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. 

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. 


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20Although 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. 

7. Call Center 

Toll-free TWIC Call Center (Help 

Desk) support will provide around-theclock 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 Webbased 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. 

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 riskmanagement approach with a 

performance-based set of guidelines and 

a reevaluated technology. An 


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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-portcentric’’ and disapproved of this ‘‘onesize-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 


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various security functions would be 

found for enforcement purposes. We did 

not propose changing it in the TWIC 

NPRM and we have not changed it in 

the final rule. 

One commenter recommended that 

the final rule better define the term 

‘‘Federal Official’’ in 33 CFR 101.514, so 

that active duty and reserve military 

personnel, all Federal Civil Service 

employees, and people who hold 

Department of Defense (DOD) Common 

Access Card (CAC) cards are not 

required to obtain or possess a TWIC. 

We disagree with the suggested change, 

as the term Federal official is clear 

enough on its face, meaning individuals 

who are working for the Federal 

government. Section 101.514 allows 

these individuals to gain unescorted 

access to a vessel or facility using their 

agency-issued, HSPD–12 compliant 

identification card. Until an HSPD–12 

card is available, these officials may use 

their agency’s official credential—when 

representing that agency on offical 

duty—if that is the DOD CAC card, then 

the CAC card may be used. 

One commenter noted that a 

definition for the term ‘‘official’’ is not 

provided in the proposed rule, and 

recommended that Federal, State, and 

local ‘‘officials’’ not requiring a TWIC 

for unescorted access should be limited 

to law enforcement, fire, rescue, and 

government employees that have been 

subjected to a background screening 

equivalent to the one conducted for 

issuance of a TWIC. We believe that the 

term ‘‘official’’ is clear enough in 

context, and as such we have not added 

a definition as suggested by the 

commenter. We recognize, however, 

that emergency responders may not fit 

into the ‘‘officials’’ category, and so we 

have added a new paragraph to 

§ 101.514 to cover emergency 

responders during emergency situations. 

One commenter recommended that 

the rule be amended to exclude persons 

working on vessels whose sole purpose 

is entertainment, such as musicians on 

passenger vessels. If this exclusion was 

not made, the commenter recommended 

that where a vessel engaged solely in 

entertainment has been inadvertently 

grouped with vessels of other classes, 

that the designation of various spaces 

aboard the vessels, and within those 

vessels’ facilities, be more clearly 

defined in the final rule, including: (1) 

For passenger vessels, exclude the 

employees, whose workstation is 

limited to areas accessible by 

passengers, based on the fact that they 

are occupying the same areas as the 

passengers who are not subject to the 

requirement; and (2) apply the TWIC 

ruling only to the crew areas or persons 

with access to crew areas. This would 

allow operators to maintain the security 

of control stations, equipment rooms 

and voids, without disruption of access 

to other employee only areas of the 

vessel or a facility, which do not need 

to be restricted areas. 

We agree with this comment. As 

discussed above in the section 

discussing changes to the Coast Guard 

provisions, we are adding a definition 

for ‘‘employee access areas,’’ for use 

only by passenger vessels and ferries. 

An employee access area is a defined 

space within the access control area of 

a ferry or passenger vessel that is open 

to employees but not passengers. It is 

not a secure area and does not require 

a TWIC for unescorted access. It may 

not include any areas defined as 

restricted areas in the VSP. Note, 

however, that any employee that needs 

to have unescorted access to areas of the 

vessel outside of the passenger or 

employee access areas will need to 

obtain a TWIC. 

(b). TWIC 

Two commenters recommended that 

all references to a ‘‘valid TWIC’’ be 

changed to ‘‘TWIC’’ since the definition 

of TWIC requires that it be valid and 

non-revoked. We agree and have made 

the suggested changes within 33 CFR 

parts 101 through 106. We have left the 

language in 46 CFR parts 10, 12, and 15, 

however, because in those places, the 

term TWIC is not tied to the definition 

in § 101.105. 

(c). Public Access Area/Passenger 

Access Area 

One commenter recommended that 

the definition of ‘‘public access area’’ for 

cargo vessels be the same as that for 

passenger vessels to allow similar 

flexibility. Alternatively, the commenter 

provided a separate definition of 

‘‘public access area’’ that allows 

facilities to designate any area as such, 

provided the area is specified in the 

FSP. 

One association noted that vessels 

other than ‘‘passenger vessels’’ are 

permitted to carry passengers, industrial 

personnel, or persons in addition to the 

crew. The association recommended 

that the final rule provide flexibility 

similar to passenger vessels for other 

types of vessels by providing the 

following definition of public access 

areas in 33 CFR part 101: ‘‘Public access 

areas means those defined spaces within 

a vessel, facility or OCS facility that do 

not require a TWIC for unescorted 

access. Any vessel, facility or OCS 

facility may designate areas as public 

access areas provided they are specified 

in the security plan.’’

They further recommended that 

facilities owners and operators be 

provided flexibility similar to that of 

passengers in designating public access 

areas, and recommended that the 

following definition be added to part 

105: 

‘‘§ 105.xxx Public access area. 

(a) Any facility may designate areas within 

the facility as public access areas. Any such 

areas must be specified in the FSP. 

(b) Public access areas are those defined 

spaces within a facility that do not require 

escorted access for persons not in possession 

of a TWIC.’’

They also recommended that OCS 

facilities owners and operators be 

provided flexibility similar to that of 

passenger vessels in designating public 

access areas, and recommended that the 

following definition be added to part 

106: 

‘‘§ 106.xxx Public access area. 

(a) Any OCS facility may designate areas 

within the facility as public access areas. Any 

such areas must be specified in the FSP. 

(b) Public access areas are those defined 

spaces within an OCS facility that do not 

require escorted access for persons not in 

possession of a TWIC.’’

We disagree with these comments. 

The concept of a ‘‘passenger access 

area’’ has been included in the final rule 

to cover passenger vessels, ferries, and 

cruise ships, i.e., those vessels that 

routinely, as part of their normal 

operating procedures, carry passengers. 

While we recognize that some cargo 

vessels may also, at times, carry 

passengers, we do not feel it is 

appropriate to expand this provision to 

other categories of vessels at this time. 

We feel that appropriate flexibility is 

given in the interpretation of ‘‘escort’’ to 

address these situations, while 

maintaining security. Additionally, 

facilities are already able to designate 

certain portions of their facility as 

‘‘public access areas,’’ therefore we do 

not feel it necessary to expand the 

‘‘passenger access area’’ concept to 

facilities at this time. 

Several commenters recommended 

that the definition of ‘‘passenger access 

areas’’ be clarified in the final rule to 

state that no person, including 

employees, workers, and vendors, 

would need a TWIC to have unescorted 

access to a passenger access area on a 

vessel. 

We have not amended the language as 

suggested, but agree with the 

commenters’ concept. The proposed, 

and now final, definition of ‘‘passenger 

access area’’ states that these areas are 

not part of the secure area of the vessel. 

Thus, anyone requiring unescorted 

access to the passenger access area 

ONLY does not need to have a TWIC, 


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as he or she does not need unescorted 

access to a secure area. This covers 

passengers, employees, other workers, 

and vendors. 

(d). Monitoring 

One commenter felt that the 

definition of ‘‘monitoring’’ as used in 

current regulations and the TWIC 

NPRM, was ambiguous, confusing, and 

should be deleted. We disagree. The 

NPRM did not propose to change the 

definition of monitoring, and as such we 

are not making any changes in the final 

rule. For an explanation of what was 

meant by that term, see the final rule 

titled ‘‘Implementation of National 

Maritime Security Initiatives,’’ issued 

on October 22, 2003 (68 FR 60448). 

(e). Breach of Security 

One trade association recommended 

that the definition for ‘‘breach of 

security’’ as used in current regulations 

and the TWIC NPRM be clarified to 

allow certain individuals without a 

TWIC in secure areas, such as escorted 

persons and foreign seafarers 

conducting authorized ship’s business. 

The commenter also recommended that 

the guidance in parts 104 through 106 

be amended to clarify this. 

Neither the NPRM nor the final rule 

amend the definition for ‘‘breach of 

security.’’ As stated in the NPRM, 

‘‘[c]ircumstances that trigger the 

reporting requirement[s] in § 101.305 

are highly fact-specific and difficult to 

define comprehensively.’’ (71 FR 

29417). Generally speaking, finding 

properly escorted persons within a 

secure area would not, in and of itself, 

constitute a breach of security. One 

situation that would, with certainty, 

however, is finding someone unescorted 

within a secure area without a TWIC. 

This would constitute a breach of 

security. We will be issuing new 

guidance for parts 104 through 106, in 

the form of a NVIC, and will be sure to 

include provisions on what could 

constitute breaches of security or 

suspicious activity in the context of 

TWIC. 

(f). Escorted/Unescorted Access 

Several comments requested 

clarification and additional guidance on 

the definition of ‘‘escorting.’’ Several 

commenters requested additional 

clarification about the level of 

surveillance for personnel without a 

TWIC, and supported the use of 

surveillance and monitoring technology 

instead of physical escorting, or the use 

of one escort to monitor multiple 

individuals. The commenters said that 

constant, one-on-one supervision would 

be unduly burdensome. 

Commenters also stated that the 

escorting and recordkeeping 

requirement would be too burdensome 

in terms of manpower, cost, and 

recordkeeping. Many of these 

commenters interpreted the definition 

to require the physical presence of one 

escort for each individual without a 

TWIC at all times while in a restricted 

area. Some of these commenters 

provided examples of situations where 

the requirement would be too 

burdensome. One port authority stated 

that it typically has over 100 temporary 

workers on site that would require 

escorts. Another commenter was 

concerned that the rule may prevent 

shore leave for European Union workers 

not holding a TWIC, particularly where 

an escort was unavailable or the 

regulations were interpreted 

inconsistently at different ports. One 

trade association felt that the 

requirement for escorting would be too 

burdensome for facilities without the 

manpower to escort individuals without 

TWIC, particularly in emergency 

situations when the workforce has been 

displaced. One commenter felt that the 

escort provisions should be unnecessary 

for foreign maritime facilities complying 

with the International Ship and Port 

Facilities Security Code (ISPS Code). 

Several commenters were concerned 

about the need to escort repairmen, 

maintenance crews, truck drivers, 

delivery men, crews doing dockside 

checks of their vessel, musicians, 

caterers, and other workers, and the 

need for escorting during weekends and 

non-business hours when escorts might 

not be available. One commenter stated 

that it would have to provide escorts for 

technical representatives of foreign 

equipment manufacturers to work on its 

foreign-built (but U.S.-flagged) vessels. 

The company also said the rule would 

be ‘‘problematic’’ because it would 

require a constant escort for 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 § 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-toone 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 

§ 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 


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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-byside 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.’’


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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 


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


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

(a). Applicability—Requests for 

Exemptions 

Numerous commenters requested 

exemptions from the TWIC 

requirements for the following 

industries, vessels, and facilities: 

• U.S.-flagged passenger vessels; 

• 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; 

• Other U.S. flagged vessels 

employing non-citizen crewmembers 

under the provisions of 46 U.S.C. 

8103(b)(3) or (e); 

• Inland tugboat, towboat, and barge 

industry; 

• Small and/or isolated low 

consequence ports, facilities, or vessels; 

• 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); 

• Facilities and vessels participating 

in aggregate stockpile and loadout 

activities; 

• Tall ships operating under the U.S. 

flag and educational sailing programs 

for school children; 

• Bunkering and gas support 

facilities; and 

• 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 shelfState 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: 

• Employees who work at small ports, 

facilities, or vessels; 

• 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; 

• Employees on vessels under 100 

gross tons; 

• Contract security guards who have 

already undergone a DOJ background 

investigation; 

• Crewmembers, service technicians, 

or repair persons performing vessel 

maintenance and repairs; 

• Hotel staff and passenger vessel 

staff; 

• Seasonal or short term workers 

which access needs of less than 90 days; 

• Cadets from U.S. maritime 

academies; 

• Emergency response personnel; 

• 15.702(b) crew and other authorized 

foreign nationals boarding U.S. vessels 

overseas; 

• Employees who must continuously 

enter and exit secure areas (e.g., baggage 

handlers at a cruise ship terminal); 

• Port chaplains or other religious 

personnel; 

• Workers who are not involved in 

the transportation industry; and 

• 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. 


ycherry on PROD1PC64 with RULES2
Federal Register / Vol. 72, No. 16 / Thursday, January 25, 2007 / Rules and Regulations 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 MTSAregulated 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 § 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 § 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 foreignflagged 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 


ycherry on PROD1PC64 with RULES2
3520 Federal Register / Vol. 72, No. 16 / Thursday, January 25, 2007 / Rules and Regulations 

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 § 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 § 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 MTSAregulated 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 


ycherry on PROD1PC64 with RULES2
Federal Register / Vol. 72, No. 16 / Thursday, January 25, 2007 / Rules and Regulations 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-a`-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. 


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

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. 

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. 

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 

§ 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 


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

§ 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, 

§ 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 

§ 101.514(c) or § 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 § 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 


ycherry on PROD1PC64 with RULES2
3524 Federal Register / Vol. 72, No. 16 / Thursday, January 25, 2007 / Rules and Regulations 

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 


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

related to the value or drawbacks related 

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 

§ 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 

§§ 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 photoidentification 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 §§ 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 foreignflagged vessels would be required to 

have. 

Foreign-flagged vessels and their 

crews are exempt from the TWIC 


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

provisions, as set forth in 33 CFR part 

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 inbetween. 

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 twovessel 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 


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

§ 104.290(a)(1) and 105.280(f) be 

modified to conform to § 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 


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

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 processrelated 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 timesensitive 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. 


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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 reproposing 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 


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will meet the identification requirement 

in § 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, sitespecific 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. 


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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 


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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 

§ 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 § 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 § 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 

§ 104.115, or revision to existing plans 

is necessary for foreign flag cruise ships 

under either of these regulations. 

For reasons discussed above, 

§ 104.105 exempts all foreign-flagged 

vessels, including foreign cruise vessels, 

from TWIC requirements. 

Another commenter noted that the 

creation of § 101.514 does not address 

the existence of a ‘‘passenger access 

area’’ as an exception, and the language 

of § 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 


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obtain unescorted access to a passenger 

access area as defined in § 101.106 or a 

public access area as defined in 

§ 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-byside 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 § 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 

§ 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 § 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 § 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 § 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 

§ 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’’


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when visiting a facility. The current 

version of this section, § 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 § 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 §§ 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 § 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 § 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 § 105.255(f)(4). 

The list of documents found in 

§ 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 

§ 101.515. We have not amended either 

§§ 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 


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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 § 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 

§ 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 § 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 § 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 

§§ 104.240, 104.255, 104.292, and 

104.295. And, under § 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 


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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 


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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 (§ 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-selfpropelled 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 


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duties that are authorized to view this 

information. 

One commenter notes that, as 

proposed, §§ 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 


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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 § 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 § 1572.19 

appears to contradict the schedule in 

§ 104.115. 

In order to reduce or eliminate any 

confusion, we point out that § 1572.19 

applies to the individual TWIC holder 

and § 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, 


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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 noncompliance 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 repropose 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 spotchecking of passengers and employeedisplayed 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 § 104.295(a)(2), at 

MARSEC Level 2, the owner or operator 


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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 § 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 §§ 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 § 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 § 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 


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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 § 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 binational 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 § 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 § 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 Guardissued 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 

§ 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 §§ 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 GuardVerDate Aug<31>2005 14:38 Jan 24, 2007 Jkt 211001 PO 00000 Frm 00052 Fmt 4701 Sfmt 4700 E:\FR\FM\25JAR2.SGM 25JAR2

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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 noncredentialed, 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 § 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 § 101.515. 

First, to conform the personal 

identification requirements in 

§ 101.515(a) with those in § 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 

§ 101.515(b), the reference to § (b)(4) 

should be to (a)(4). Third, clarify in 

§ 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 


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none of them are appropriate for action 

at this time. The second suggestion is 

not necessary, as the correct crossreference 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 § 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 


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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 


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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 timeconsuming, 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 outof-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 


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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 § 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 fivemile 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 email 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 

§ 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. 


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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 § 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. 


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

5. Security Threat Assessment 

(a). Comparability of Other Background 

Checks 

We received many comments on 

proposed § 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 securityrelated 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 


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

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 § 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 


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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 

§ 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 

§ 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, § 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 nonresident 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, 


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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 § 1572.21(e). In a new 

section, § 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 entrylevel 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 


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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 fingerprintbased 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 subjectmatter 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. 


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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 


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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 


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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 oneway 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 


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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, 


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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 


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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: 

• 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; 

• 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; 

• Expanding the group of applicants 

eligible to apply for a waiver after being 

disqualified because of mental 

incapacity; 

• Including a provision for passenger 

access areas, as proposed in the NPRM; 

• Adding a provision for employee 

access areas on passenger vessels and 

ferries; 

• Allowing facilities to submit 

amendments to their security plans in 

order to redefine their secure areas; and 

• 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 


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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; 


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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 

§§ 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 


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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, 


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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

Industry 

Turnover 

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 

TABLE 5.—TURNOVER RATE ESTIMATES BY COMMENTERS—Continued 

Industry 

Turnover 

estimate 

(percent) 

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 


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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 


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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 


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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: 

• Provisions to accommodate new 

hires and persons who have reported 

their TWIC as lost, damaged, or stolen. 

• 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. 

• 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. 

• Expanded group of applicants 

eligible to apply for a waiver after being 

disqualified because of mental 

incapacity. 

• 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. 

• 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. 


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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 


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3568 Federal Register / Vol. 72, No. 16 / Thursday, January 25, 2007 / Rules and Regulations 

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 


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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 nonU.S. waters. 


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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. § 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 


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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] 

Component 

NPRM Final Rule Difference 

(Low–High) Remarks 

Low Primary High Low Primary 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. 


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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. 


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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.) 

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 


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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 


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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 


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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 


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(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 

■ 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 

■ 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. 

■ 2. In § 101.105 add, in alphabetical 

order, definitions for the terms 

escorting, personal identification 

number (PIN), recurring unescorted 

access, secure area, TWIC, TWIC 


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program, and unescorted access, to read 

as follows: 

§ 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 sideby-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 sideby-side companion, except as provided 

in §§ 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 

§§ 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. 

* * * * * 

■ 3. Add § 101.514 to read as follows: 

§ 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. 

■ 4. Revise § 101.515 to read as follows: 

§ 101.515 TWIC/Personal Identification. 

(a) Persons not described in § 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 § 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 

§ 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. 


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PART 103—MARITIME SECURITY: 

AREA MARITIME SECURITY 

■ 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. 

■ 6. Revise § 103.305(c) to read as 

follows: 

§ 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 § 103.410 of this part. With 

the exception of credentialed Federal, 

state and local officials, all AMS 

Committee members shall have a namebased 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. 

■ 7. Revise § 103.505(f) to read as 

follows: 

§ 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 

■ 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. 

■ 9. Amend § 104.105 by redesignating 

paragraph (d) as paragraph (f) and 

adding new paragraphs (d) and (e) to 

read as follows: 

§ 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. 

* * * * * 

■ 10. Add § 104.106 to read as follows: 

§ 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. 

■ 11. Add § 104.107 to read as follows: 

§ 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. 

■ 12. Amend § 104.115 by adding 

paragraphs ( c) and (d) to read as 

follows: 

§ 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 

§ 104.105(d) of this part must be 

operating in accordance with the TWIC 

provisions found within this part. 

■ 13. Amend § 104.120 by adding 

paragraph (c) to read as follows: 

§ 104.120 Compliance documentation. 

* * * * * 

(c) Each vessel owner or operator who 

designates a passenger or employee 

access area (as those terms are defined 

in §§ 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 

■ 14. Revise § 104.200(b) to read as 

follows: 

§ 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; 


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(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 § 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 § 104.267 of 

this part, for dealing with newly hired 

employees who have applied for and 

not yet received a TWIC, are in place. 

■ 15. Amend § 104.210 by adding 

paragraphs (a)(5), (b)(2)(xv) and (c)(15) 

to read as follows: 

§ 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. 

■ 16. Amend § 104.215 by adding 

paragraphs (a)(6), (b)(7) and (c)(12) to 

read as follows: 

§ 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. 

■ 17. Amend § 104.220 by revising the 

introductory paragraph and adding 

paragraph (n) to read as follows: 

§ 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. 

■ 18. Amend § 104.225 by adding 

paragraph (f) to read as follows: 

§ 104.225 Security training for all other 

personnel. 

* * * * * 

(f) Relevant aspects of the TWIC 

program and how to carry them out. 

■ 19. Revise § 104.265 to read as 

follows: 

§ 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 § 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 § 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 § 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. 


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(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 governmentowned 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. 

■ 20. Add § 104.267 to read as follows: 

§ 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 


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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 § 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) 

■ 21. Revise § 104.405(a)(10) and (b) to 

read as follows: 

§ 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 

■ 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. 

■ 23. Amend § 105.115 by adding 

paragraphs (c), (d), and (e) to read as 

follows: 

§ 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 § 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 

■ 24. Revise § 105.200(b) to read as 

follows: 

§ 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; 


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(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 § 105.257 of 

this part, for dealing with newly hired 

employees who have applied for and 

not yet received a TWIC, are in place. 

■ 25. Amend § 105.205 by adding 

paragraphs (a)(4), (b)(2)(xv) and (c)(19) 

to read as follows: 

§ 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. 

■ 26. Amend § 105.210 by revising the 

introductory paragraph and adding 

paragraph (n) to read as follows: 

§ 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. 

■ 27. Amend § 105.215 by adding 

paragraph (f) to read as follows: 

§ 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. 

■ 28. Revise § 105.255 to read as 

follows: 

§ 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 § 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 § 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 § 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 governmentowned 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 


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(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. 

■ 28. Add § 105.257 to read as follows: 

§ 105.257 Security measures for newlyhired 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 § 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. 

■ 29. Amend § 105.285 by revising 

paragraph (a)(4) to read as follows: 

§ 105.285 Additional requirements—

passenger and ferry facilities. 

(a) * * * 

(4) Deny passenger access to secure 

and restricted areas unless escorted by 


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authorized facility security personnel; 

and 

* * * * * 

■ 30. Revise § 105.290 to read as 

follows: 

§ 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. 

■ 31. Amend § 105.296 by adding 

paragraph (a)(4) to read as follows: 

§ 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 § 105.255 of this 

part. 

* * * * * 

Subpart D—Facility Security Plan 

(FSP) 

■ 32. Revise § 105.405(a)(10) and (b) to 

read as follows: 

§ 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 

■ 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. 

■ 34. Amend § 106.110 by adding 

paragraphs (d) and (e) to read as follows: 

§ 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. 

■ 35. Revise § 106.200(b) to read as 

follows: 

§ 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 § 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 § 106.262 of 

this part, for dealing with newly hired 

employees who have applied for and 

not yet received a TWIC, are in place. 

■ 36. Amend § 106.205 by adding 

paragraphs (a)(4), (c)(13) and (d)(13) to 

read as follows: 

§ 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. 

■ 37. Amend § 106.210 by adding 

paragraphs (a)(4) and (c)(15) to read as 

follows: 


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§ 106.210 OCS Facility Security Officer 

(FSO). 

(a) * * * 

(4) The FSO must maintain a TWIC. 

* * * * * 

(c) * * * 

(15) Ensure the TWIC program is 

properly implemented. 

■ 38. Amend § 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: 

§ 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; 

* * * * * 

■ 39. Amend § 106.220 by adding 

paragraph (f) to read as follows: 

§ 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. 

■ 40. Revise § 106.260 to read as 

follows: 

§ 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 § 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 § 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 


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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. 

■ 41. Add § 106.262 to read as follows: 

§ 106.262 Security measures for newlyhired 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 § 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. 

■ 42. Revise § 106.405(b) to read as 

follows: 

§ 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 

■ 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. 

■ 44. In § 125.09, revise paragraph (f) 

and add paragraph (g) to read as follows: 

§ 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 

■ 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. 

■ 46. Add new § 10.113 to read as 

follows: 

§ 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. 


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PART 12—CERTIFICATION OF 

SEAMEN 

■ 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. 

■ 48. Add new § 12.01–11 to read as 

follows: 

§ 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 

■ 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. 

■ 50. Add new § 15.415 to read as 

follows: 

§ 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 

■ 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. 

§ 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. 

§ 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 handdelivery 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 decisionmaking 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. 

§ 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 


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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 

§ 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). 

§ 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. 


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(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. 

§ 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 § 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. 

§ 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 § 1515.9. The 

ALJ may consider only evidence or 


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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 § 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 § 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 § 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 inperson 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 inperson 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 crossexamination, 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 


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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. 

■ 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 

§ 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. 

§ 1540.203 Operator responsibilities. 

(a) Each operator subject to this 

subpart must ensure that each applicant 

described in § 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 


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personal authentication, where accepted 

by TSA. 

§ 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. 

§ 1540.207 [Reserved]. 

§ 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 

§ 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 

■ 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. 

§ 1570.1 Scope. 

This part applies to any person 

involved in land or maritime 

transportation as specified in this 

subchapter. 

§ 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. 


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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. 

§ 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. 

§ 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. 

§ 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. 

§ 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—


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(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. 

■ 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 

§ 1572.1 Applicability. 

This part establishes regulations for 

credentialing and security threat 

assessments for certain maritime and 

land transportation workers. 

§ 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. 

§ 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 § 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. 

§ 1572.7 [Reserved]. 

§ 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 


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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. 

§ 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. 


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(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. 

§ 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. 

§ 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 intelligencerelated 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 


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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. 

§ 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 


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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. 

§ 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. 

§ 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 intelligencerelated check, and a final disposition. 

(b) Fingerprint-based check. The 

following procedures must be 

completed to conduct a fingerprintbased 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 


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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. 

§ 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. 

§§ 1572.24—1572.40 [Reserved] 

Subpart B—Standards for Security 

Threat Assessments 

§ 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. 

§ 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 employeerelated 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). 


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(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. 

§ 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. 

§ 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. 

§ 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. 


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§§ 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 

§ 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. 

§ 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 


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

§ 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. 

§ 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. 

§ 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. 

§ 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. 


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3604 Federal Register / Vol. 72, No. 16 / Thursday, January 25, 2007 / Rules and Regulations 

(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) 

§ 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. 

§ 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 nonpay 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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