[Federal Register: January 25, 2007 (Volume 72, Number 16)]
[Rules and Regulations]
[Page 3491-3604]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr25ja07-13]
[[Page 3491]]
-----------------------------------------------------------------------
Part II
Department of Homeland Security
-----------------------------------------------------------------------
Coast Guard
-----------------------------------------------------------------------
33 CFR Parts 1, 20 et al. and 46 CFR Parts 1, 4 et al.
-----------------------------------------------------------------------
Transportation Security Administration
-----------------------------------------------------------------------
49 CFR Parts 10, 12, and 15
Transportation Worker Identification Credential (TWIC) Implementation
in the Maritime Sector; Final Rule
Consolidation of Merchant Mariner Qualification Credentials; Proposed
Rule
[[Page 3492]]
-----------------------------------------------------------------------
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
[[Page 3493]]
Seventh Street SW., Room PL-401, Washington, DC 20590-0001.
(3) Fax: 202-493-2251.
(4) Delivery: Room PL-401 on the Plaza level of the Nassif
Building, 400 Seventh Street SW., Washington, DC, between 9 a.m. and 5
p.m., Monday through Friday, except Federal holidays. The telephone
number is 202-366-9329.
(5) Federal eRulemaking Portal: http://www.regulations.gov.
See SUPPLEMENTARY INFORMATION for format and other information
about comment submissions.
FOR FURTHER INFORMATION CONTACT: For questions related to TSA's
standards: Greg Fisher, Transportation Security Administration, TSA-19,
601 South 12th Street, Arlington, VA 22202-4220, TWIC Program, (571)
227-4545; e-mail: credentialing@dhs.gov.
For legal questions: Christine Beyer, TSA-2, Transportation
Security Administration, 601 South 12th Street, Arlington, VA 22202-
4220; telephone (571) 227-2657; facsimile (571) 227-1380; e-mail
Christine.Beyer@dhs.gov.
For questions concerning the Coast Guard provisions of the TWIC
rule: LCDR Jonathan Maiorine, Commandant (G-PCP-2), United States Coast
Guard, 2100 Second Street, SW., Washington, DC 20593; telephone 1-877-
687-2243.
For questions concerning viewing or submitting material to the
docket: Renee V. Wright, Program Manager, Docket Management System,
U.S. Department of Transportation, Room Plaza 401, 400 Seventh Street,
SW., Washington, DC 20590-0001; telephone (202) 493-0402.
SUPPLEMENTARY INFORMATION:
Comments Invited
TSA invites comment on one provision of the rule, the Card
Replacement Fee, as discussed in section I under Fees and section VI of
this preamble. See ADDRESSES above for information on where to submit
comments. With each comment, please include your name and address,
identify the docket number at the beginning of your comments, and give
the reason for each comment. Please explain the reason for any
recommended change and include supporting data. You may submit comments
and material electronically, in person, by mail, or fax as provided
under ADDRESSES, but please submit your comments and material by only
one means. If you submit comments by mail or delivery, submit them in
an unbound format, no larger than 8.5 by 11 inches, suitable for
copying and electronic filing.
If you want TSA to acknowledge receipt of comments submitted by
mail, include with your comments a self-addressed, stamped postcard on
which the docket number appears. We will stamp the date on the postcard
and mail it to you.
TSA will file in the public docket all comments received by TSA,
except for comments containing confidential information and sensitive
security information (SSI)\1\, TSA will consider all comments received
on or before the closing date for comments and will consider comments
filed late to the extent practicable. The docket is available for
public inspection before and after the comment closing date.
---------------------------------------------------------------------------
\1\ ``Sensitive Security Information'' or ``SSI'' is information
obtained or developed in the conduct of security activities, the
disclsoure of which would constitute an unwarranted invasion of
privacy, reveal trade secrets or privileged or confidential
information, or be detrimental to the security of transportation.
The protection of SSI is governed by 49 CFR part 1520.
---------------------------------------------------------------------------
Handling of Confidential or Proprietary Information and Sensitive
Security Information (SSI) Submitted in Public Comments
Do not submit comments that include trade secrets, confidential
commercial or financial information, or SSI to the public regulatory
docket. Please submit such comments separately from other comments on
the rulemaking. Comments containing this type of information should be
appropriately marked as containing such information and submitted by
mail to the address listed in the FOR FURTHER INFORMATION CONTACT
section. Upon receipt of such comments, TSA will not place the comments
in the public docket and will handle them in accordance with applicable
safeguards and restrictions on access. TSA will hold them in a separate
file to which the public does not have access, and place a note in the
public docket that TSA has received such materials from the commenter.
If TSA receives a request to examine or copy this information, TSA will
treat it as any other request under the Freedom of Information Act
(FOIA) (5 U.S.C. 552) and the Department of Homeland Security's (DHS's)
FOIA regulation found in 6 CFR part 5.
Reviewing Comments in the Docket
Please be aware that anyone is able to search the electronic form
of all comments received into any of our dockets by the name of the
individual submitting the comment (or signing the comment, if submitted
on behalf of an association, business, labor union, etc.). You may
review the applicable Privacy Act Statement published in the Federal
Register on April 11, 2000 (65 FR 19477), or you may visit http://dms.dot.gov
.
You may review the comments in the public docket by visiting the
Dockets Office between 9 a.m. and 5 p.m., Monday through Friday, except
Federal holidays. The Dockets Office is located on the plaza level of
the Nassif Building at the Department of Transportation address,
previously provided under ADDRESSES. Also, you may review public
dockets on the Internet at http://dms.dot.gov.
Availability of Rulemaking Document
You can get an electronic copy of this document as well as other
documents associated with this rulemaking on the Internet by--
(1) Searching the Department of Transportation's electronic Docket
Management System (DMS) web page (http://dms.dot.gov/search); (2) Accessing the Government Printing Office's web page at http://
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
[[Page 3494]]
NPRM--Notice of Proposed Rulemaking
NVIC--Navigation and Vessel Inspection Circular
OCS--Outer Continental Shelf
REC--Regional Examination Center
SAFETEA-LU--Safe, Accountable, Flexible, Efficient Transportation
Equity Act--A Legacy for Users
STCW--International Convention on Standards of Training, Certification,
and Watchkeeping for Seafarers, 1978, as amended
TSA--Transportation Security Administration
TPS--Temporary Protected Status
TWIC--Transportation Worker Identification Credential
VSP--Vessel Security Plan
Table of Contents
I. Background
II. Final Rule
A. Coast Guard Provisions
B. TSA Provisions
C. Changes From NPRM
D. Anticipated Future Notices and Rulemaking
E. Summary of TWIC Process under the Final Rule
F. SAFE Port Act of 2006
III. Discussion of Comments
A. Requests for Extension of Comment Period and Additional
Public Meetings
B. Coast Guard Provisions
1. Definitions
2. General Comments on Applicability
3. Coast Guard Roles
4. Owner/operator Requirements
5. Requirements for Security Officers and Personnel
6. Recordkeeping/Tracking Persons on Vessels/Security Incident
Procedures
7. Reader Requirements/Biometric Verification/TWIC Validation
Procedures
8. Access Control Issues
9. TWIC Addendum
10. Compliance Dates
11. General Compliance Issues
12. Additional Requirements--Cruise Ships
13. Additional Requirements--Cruise Ship Terminals
14. Additional Requirements--CDC Facilities
15. Additional Requirements--Barge Fleeting Facilities
16. Miscellaneous
C. TSA Provisions
1. Technology Concerns
2. Enrollment Issues
3. Appeal and Waiver Issues
4. TSA Inspection
5. Security Threat Assessment
6. Immigration Status
7. Mental Incapacity
8. TWIC Expiration and Renewal Periods
9. Fees for TWIC
10. Implementing TWIC in Other Modes
D. Comments Relating to Economic Issues
E. Comments Beyond the Scope of the Rule
IV. Advisory Committee Recommendations and Responses
V. Rulemaking Analyses and Notices
A. Regulatory Planning and Review (Executive Order 12866)
B. Small Entities
C. Assistance for Small Entities
D. Collection of Information
E. Federalism (Executive Order 13132)
F. Unfunded Mandates Reform Act
G. Taking of Private Property
H. Civil Justice Reform
I. Protection of Children
J. Indian Tribal Governments
K. Energy Effects
L. Technical Standards
M. Environment
VI. Solicitation of Comments
I. Background
The Department of Homeland Security (DHS), through the United
States Coast Guard (Coast Guard) and the Transportation Security
Administration (TSA), issues this final rule pursuant to the Maritime
Transportation Security Act (MTSA), Pub. L. 107-295, 116 Stat. 2064
(November 25, 2002), and the Security and Accountability for Every Port
Act of 2006 (SAFE Port Act), Pub. L. 109-347 (October 13, 2006).
Section 102 of MTSA (46 U.S.C. 70105) requires DHS to issue regulations
to prevent individuals from entering secure areas of vessels or MTSA-
regulated port facilities unless such individuals hold transportation
security cards issued under section 102 and are authorized to be in the
secure areas. An individual who does not hold the required
transportation security card, but who is otherwise authorized to be in
the secure area in accordance with the facility's security plan, must
be accompanied by another individual who holds a transportation
security card. MTSA also requires all credentialed merchant mariners to
hold these transportation security cards, and requires DHS to establish
a waiver and appeals process for persons found to be ineligible for the
required transportation security card. The SAFE Port Act contained
amendments to the basic MTSA requirements for credentialing (concurrent
processing, fees, card readers, program roll out, testing and
timelines) as well as added new requirements (disqualifying crimes, new
hire provisions and discretion as to who may obtain a TWIC). The
substance of the SAFE Port Act is discussed in greater detail later in
this document.
On May 22, 2006, TSA and the Coast Guard issued a joint notice of
proposed rulemaking (71 FR 29396), setting forth the proposed
requirements and processes required under sec. 102 of MTSA (TWIC NPRM)
for implementation of the TWIC program in the maritime sector. The NPRM
proposed changes to three titles of TSA and Coast Guard regulations (33
CFR, 46 CFR, and 49 CFR). The Department intends for these combined
changes to increase port security by requiring all credentialed
mariners and all persons who require unescorted access to a regulated
facility or vessel to have undergone a security threat assessment by
TSA and obtain a TWIC.\2\ The proposed security threat assessment
included a review of criminal, immigration, and pertinent intelligence
records. TSA also proposed a process for individuals denied TWICs to
appeal adverse determinations or apply for waivers of the standards.
---------------------------------------------------------------------------
\2\ Additional information on the statutory and regulatory
history of this rule can be found in the NPRM at 71 FR 29396 (May
22, 2006).
---------------------------------------------------------------------------
Prior to the publication of the TWIC NPRM, the Coast Guard
published a Notice in the Federal Register informing the public that
the Commandant of the Coast Guard, pursuant to his authority under 50
U.S.C. 191 and 33 CFR part 125, was exercising his authority to require
identification credentials for persons seeking access to waterfront
facilities and to port and harbor areas, including vessels and harbor
craft in such areas. 71 FR 25066 (April 28, 2006). This action has
served as an interim measure to improve security at our nation's ports
by verifying maritime workers' identities, validating their background
information, and accounting for access for authorized personnel to
transportation facilities, vessels and activities. Id.
The May 22, 2006 TWIC NPRM provided the draft regulatory text for
review and solicited public comments for 45 days. TSA and the Coast
Guard also held four public meetings throughout the country to solicit
public comments. Those meetings were held on May 31, 2006 in Newark,
New Jersey; on June 1, 2006 in Tampa, Florida; on June 6, 2006 in St.
Louis, Missouri; and on June 7, 2006 in Long Beach, California.
Approximately 1200 people attended these meetings. The public can view
transcripts of the four public meetings on the public docket for this
rulemaking action at http://www.regulations.gov. DHS also received
approximately 1770 written comments on the TWIC NPRM. Those comments
also can be accessed through the public docket for this action. TSA and
the Coast Guard respond to the comments received in the ``Discussion of
Comments'' section, below.
Many commenters requested an extension of the comment period and
additional public meetings. As explained more fully in the ``Discussion
of Comments'' section below, DHS has decided not to delay
implementation of the TWIC program by extending the
[[Page 3495]]
comment period or providing additional public meetings because it is
imperative to begin implementation of the TWIC requirements, and
accompanying security threat assessments, as soon as possible to
improve the security of our Nation's vessels and port facilities. TSA
and Coast Guard, however, have not promulgated in this final rule the
proposed requirements on owners and operators relating to biometric
readers. The Department will address those proposed requirements, which
generated the majority of the comments received on the NPRM, in a
separate rulemaking action. Interested parties will have the
opportunity to comment on those provisions during that rulemaking
action. Although the card reader requirements are not being implemented
under this final rule, Coast Guard personnel will periodically, and
without advance notice, use handheld readers to check the biometric
information contained in the card to confirm the identity of the holder
of the TWIC.
On May 22, 2006, the Coast Guard also published a related proposed
rule, ``Consolidation of Merchant Mariner Qualification Credentials,''
at 71 FR 29462 (MMC NPRM), proposing the consolidation of Coast Guard-
issued merchant mariner's document (MMD), merchant mariner's license
(license), certificate of registry (COR) and International Convention
on Standards of Training, Certification, and Watchkeeping for Seafarers
(STCW) certificate into a single credential called the merchant mariner
credential (MMC). The MMC NPRM proposed to streamline the application
process, and reduce the administrative burden for the public and the
Federal Government. The public meetings held on the TWIC NPRM also
included time for the Coast Guard to receive comments on the MMC NPRM.
In a separate rulemaking action published elsewhere in this edition of
the Federal Register, the Coast Guard has provided a Supplemental
Notice of Proposed Rulemaking (SNPRM) also entitled ``Consolidation of
Merchant Mariner Qualification Credentials.'' The purpose of the SNPRM
is to address comments received from the public on the MMC NPRM, revise
the proposed rule based on those comments, and provide the public with
an additional opportunity to comment on the revised rulemaking. If it
becomes final, the MMC rulemaking is not expected to go into effect
until the initial TWIC roll out is complete. This time lapse will not
cause a detrimental effect on security, as all credentialed mariners
will still need to comply with the TWIC requirements and compliance
deadlines set forth in this final rule.
II. Final Rule
Under this final rule, DHS, through the Coast Guard and TSA,
requires all credentialed merchant mariners and individuals with
unescorted access to secure areas of a regulated facility or vessel to
obtain a Transportation Worker Identification Credential (TWIC).
A. Coast Guard Provisions
Owners/operators of MTSA-regulated vessels, facilities, and Outer
Continental Shelf (OCS) facilities will need to change their existing
access control procedures to ensure that merchant mariners and any
other individual seeking unescorted access to a secure area of their
vessel or facility has a TWIC.
B. TSA Provisions
Workers must provide biographic and biometric information to apply
for a TWIC and pay a fee of $107-$159 to cover all costs associated
with the TWIC program. A TWIC applicant must complete a TSA security
threat assessment and will be disqualified from obtaining a TWIC if he
or she has been convicted or incarcerated for certain crimes within
prescribed time periods, lacks legal presence and/or authorization to
work in the United States, has a connection to terrorist activity, or
has been determined to lack mental capacity.
All applicants have the opportunity to appeal a disqualification,
and may apply to TSA for a waiver if disqualified for certain crimes or
mental incapacity, or are aliens in Temporary Protected Status (TPS).
Applicants who seek a waiver and are denied may seek review by an
administrative law judge (ALJ). In addition, applicants who are
disqualified under Sec. 1572.107 may seek ALJ review of the
disqualification.
A security threat assessment is valid for five years. Therefore, in
most cases, a TWIC is valid for five years unless a disqualifying event
occurs. If an applicant obtains a TWIC based on a comparable threat
assessment under Sec. 1572.5(e), the TWIC will expire five years from
the date on the credential associated with the comparable threat
assessment. To renew a TWIC, the renewal applicant must provide new
biographic and biometric information, complete a new threat assessment,
and pay the fee to renew the credential.
C. Changes From NPRM
Each of the changes made from the NPRM to the final rule is
summarized in Table 1 and discussed in detail following the table.
Table 1.--Summary of Significant Changes Between May 22, 2006 NPRM and
This Final rule
------------------------------------------------------------------------
Topic NPRM Final rule
------------------------------------------------------------------------
Access control............... Visual identity Visual identity badge;
badge and Coast Guard will
reader (with conduct periodic checks
biometric of biometric and
verification validity (second rule
and validity for reader
check at requirements).
facility/
vessel based
on MARSEC
level).
Escorted access.............. Definition only Definition modified to
clarify that in
restricted areas (33
CFR 101.105),
``escort'' means a side-
by-side escort; outside
restricted areas,
``escort'' may consist
of monitoring.
New hires.................... Not granted Permitted to have
unescorted limited access for 30
access to consecutive days if
secure areas accompanied by TWIC-
until holder and additional
successful requirements are met.
completion of
security
threat
assessment and
card issuance.
Passenger access area........ Defined only Passenger access area
for certain remains and employee
vessels access area for certain
(passenger, vessels added (employee
ferries, access areas do not
cruise ships). apply to cruise ships).
TWIC Addendum and Included....... Excluded.
recordkeeping requirements.
Secure area.................. Definition only Clarified definition's
meaning in preamble,
and revised part 105 to
allow part 105
facilities to submit
FSP amendment to change
access control area.
[[Page 3496]]
Lost/Stolen/Damaged cards.... Access Specific requirements
procedures included in regulation.
defined in
TWIC Addendum.
AMS Committee members........ Need TWIC...... Need name-based check or
a TWIC.
Vessels in foreign waters.... No special Changed secure area
provisions. definition to state
that at certain
specified times, U.S.
vessels may not have
any secure areas.
Emergency responders......... Not Not required to obtain a
specifically TWIC for emergency
addressed. response.
Voluntary compliance......... Offered........ Not offered.
Compliance dates............. 12-18 months Phased for facilities by
after final each COTP zone. All
rule. mariners and vessels 20
months after the
publication date of
this final rule.
Disqualifying crimes......... Same as those Amended; new list will
used for HME. apply for both TWIC and
HME.
Administrative law judge Not included... May be used for waiver
(ALJ) review. denials and
disqualifications under
Sec. 1572.107.
Immigration standards........ Limited ability Expanded to cover
for non-U.S. foreign maritime
citizens to students, and certain
obtain TWICs. professionals and
specialists on
restricted visas;
permitting aliens in
TPS to apply for a
waiver.
Mental incapacity............ Could only be Waiver broadened to
waived by allow for ``case-by-
showing court case'' determinations.
order or
letter from
institution.
Fee.......................... $95-$149; card $107-$159; card
replacement replacement fee $36,
fee $36. but requesting comment
on increasing this fee
to $60.
------------------------------------------------------------------------
1. Changes From Coast Guard's Proposed Rule
Coast Guard is changing several sections of the proposed rule as a
result of comments received and additional analysis. These changes
include: (1) Changing the access control procedures to be used with
TWICs by removing the reader requirements; (2) revising and clarifying
the definition of the term ``escorting;'' (3) adding provisions
allowing for access for individuals who are new hires and who have
applied for, but not yet received, a TWIC; (4) adding a provision to
allow for limited, continued unescorted access for those individuals
who report their TWIC as lost, damaged, or stolen; (5) adding a
provision to create ``employee access areas'' aboard passenger vessels
and ferries; (6) removing the proposed requirement to submit a TWIC
Addendum and keep additional records regarding who has been granted
access privileges; (7) adding a provision to allow certain facilities
to designate smaller portions of their property as their secure area
via an amendment to their facility security plan; (8) removing the
proposed requirement for all AMS Committee members to hold a TWIC; (9)
changing the definition of secure area to state that, at certain times,
U.S. vessels may not have any secure areas; (10) adding a provision to
allow emergency responders to have unescorted access without a TWIC
during emergency situations; (11) removing the provision allowing for
voluntary compliance for those vessels and facilities not otherwise
required to implement the TWIC requirements; and (12) revising the
compliance dates for owners/operators of vessels and facilities.
(a). Reader Requirements
After reviewing the comments (which are summarized below), we
determined that implementing the reader requirements as envisioned in
the NPRM would not be prudent at this time. As such, we have removed
the reader requirements from the final rule, and will be issuing a
subsequent NPRM to address these requirements. That NPRM will address
many of the comments and concerns regarding technology that were raised
in the below-summarized comments. We will, however, continue to require
the use of the TWIC. As stated in the NPRM, there are considerable
security benefits to be gained from a TWIC, even in the absence of
reader usage. The TWIC provides greater reliability than existing
visual identity badge systems because it presents a uniform appearance
with embedded features on the face of the credential that make it
difficult to forge or alter. When presented with a TWIC, security
personnel familiar with its security features are immediately able to
notice any absence or destruction of these features, making it less
likely that an individual will be able to gain unescorted access to
secure areas using a forged or altered TWIC. Additionally, the Coast
Guard will conduct unannounced checks of the cards while visiting
facilities and vessels. The Coast Guard will use handheld readers to
check the biometrics on the card against the person presenting the
card. These unannounced checks are an important component of the
security efforts at the ports.
(b). ``Escorting''/''Unescorted Access''
We have amended the definition of escorted access to clarify our
intent. Namely, that the distinction between escort and unescorted
access are to serve as performance standards, rather than strict
definitions. We expect that, when in an area defined as a restricted
area in a vessel or facility security plan, escorting will mean a live,
physical side-by-side escort. Whether it must be a one-to-one escort,
or whether there can be one escort for multiple persons, will depend on
the specifics of each vessel and/or facility. We will provide
additional guidance on what these specifics might be in a Navigation
and Vessel Inspection Circular (NVIC). Outside of restricted areas,
however, side-by-side escorting is not required, so long as the method
of surveillance or monitoring is sufficient to allow for a quick
response should an individual ``under escort'' be found in an area
where he or she has not been authorized to go or is engaging in
activities other than those for which escorted access was granted.
Again, we will provide additional guidance with more specifics in a
NVIC.
(c). New Hires
We have added a new section within parts 104, 105, and 106 to
provide owners/operators with the ability to put new hires to work once
new hires have applied for their TWIC and an initial name-based check
is completed. In order to ensure adequate security for the vessel and
facility during this period, these provisions allow new hires to have
access to secure areas for up to 30 consecutive days, so long as they
pass a TSA name based check and are
[[Page 3497]]
accompanied by another employee with a TWIC. If TSA does not act upon a
TWIC application within 30 days, the Coast Guard may further extend
access to secure areas for another 30 days. Additional guidance on the
manner in which new hires may be accompanied will be issued by the
Coast Guard. The guidance will be in the form of a NVIC that considers
vessel or facility size, crew or staff size, vessel or facility
configuration, the number of TWIC holders, and other appropriate
factors, or by making a determination on a case-by-case basis. For
example, in some instances, where the operating environment of the
vessel is such that there is a small crew, and there is a 24-hour live
watchstand while underway, we expect to view the new hires as
accompanied when the vessel owner/operator ensures that the security
measures for monitoring and access control included within their Coast
Guard-approved security plans are implemented. As the operating
environment increases or becomes more complex, such as might be the
case when Certain Dangerous Cargoes (CDCs) are present, we expect to
require additional security measures to ensure that the new hires are,
in fact, accompanied by an individual with a TWIC. Similar guidance
will also be in place for larger vessels, as well as for facilities and
OCS facilities. The NVIC will be released in the near future.
In order to take advantage of this new hire provision, the
following procedures must be followed:
(1) The new hire will need to have applied for a TWIC in accordance
with 49 CFR part 1572 by completing the full enrollment process and
paying the user fee. He or she cannot be engaged in a waiver or appeal
process. The owner or operator must have the new hire sign a statement
affirming this.
(2) The owner or operator or the security officer must enter the
following information on the new hire into the Coast Guard's Homeport
Web site (http://homeport.uscg.mil):
(i) Full legal name, including middle name if one exists;
(ii) Date of birth;
(iii) Social security number (optional);
(iv) Employer name and 24 hour contact information; and
(v) Date of TWIC enrollment;
(3) The new hire must present an identification credential that
meets the requirements of Sec. 101.515 of this subchapter; and
(4) There must be no other circumstances that would cause
reasonable suspicion regarding the new hire's ability to obtain a TWIC,
and the owner or operator or Facility Security Officer (FSO) must not
have been informed by the cognizant COTP that the individual poses a
security threat.
This provision only applies to direct hires of the owner/operator;
it cannot be used to allow temporary unescorted access to contractors,
vendors, longshoremen, truck drivers (unless they are direct employees
of the owner/operator), or any other visitor. This provision does not
apply if the new hire is a Company, Vessel, or Facility Security
Officer, or is otherwise tasked with security duties as a primary
assignment.
In order for the Coast Guard and TSA to verify that a new hire who
is awaiting TWIC issuance passes an initial security review, this
provision includes a requirement for the owner, operator, Vessel
Security Officer (VSO) or FSO to enter new hire identifying information
into the Coast Guard's Homeport web page. The Homeport web page is a
secure location capable of communicating sensitive security information
such as Vessel Security Plans (VSP) and Facility Security Plans (FSP)
between industry and the Coast Guard. The Homeport web page address is
http://homeport.uscg.mil. Homeport will then interface with the TSA
system, and if a match to an enrollment record can be made, the TSA
system will pass back to Homeport the result of the initial name-based
check. If the result is that the new hire has been cleared, the owner/
operator/security officer can put the new hire to work under the
provisions of this section and any guidance provided by the Coast Guard
in a forthcoming NVIC.
TSA will begin the security threat assessment process as soon as
the enrollment record is complete. Generally, TSA can complete an
initial security review within 48-72 hours based on all of the
information provided during enrollment. Thus, in some cases (where the
new hire information is entered into Homeport three or more days
following enrollment), the owner/operator/security officer will not
have to wait long before finding out if an individual has cleared the
initial name check. We expect that Homeport will be able to notify
owners/operators/security officers, via e-mail, when it has received an
update on any of the new hires entered by that owner/operator/security
officer, which will alleviate any need for them to continuously check
in with Homeport.
The new hire must have applied for a TWIC in accordance with 49 CFR
part 1572 by completing the full enrollment process and paying the user
fee. The owner/operator must have the new hire sign a statement
affirming the enrollment, payment, and that the new hire is not
involved in an appeal or waiver application. The owner/operator must
retain this statement until the new hire receives a TWIC. The statement
must be produced if the Coast Guard requests it during an inspection or
investigation. The new hire must also present to the owner or operator
a form of identification that meets the standard set in 33 CFR 101.515.
It is also important to note here that a new hire may be initially
cleared to work in the secure area under the provisions of this
section, but be disqualified from receiving a TWIC when the full threat
assessment is complete. The results of the criminal history records
check (CHRC) generally will not be fully adjudicated within three days,
and if the adjudication reveals a disqualifying criminal history, the
new hire will not be cleared to receive a TWIC.
The owner/operator of regulated vessels or facilities is required
to accompany new hires in secure areas, which includes monitoring new
hires while they are in restricted areas of the vessel or facility.
Monitoring has the same meaning here as found in Sec. Sec. 104.285,
105.275, and 106.275 of 33 CFR chapter I, subchapter H.
We are also requiring owners/operators of regulated vessels and
facilities to determine that their new hires need access to secure
areas immediately in order to prevent adverse impact to the operation
of the vessel or facility. Owners and operators must identify that a
hardship exists to their operations if their new hires are not allowed
access. This adverse impact is not the impact of simply providing
escorts for new hires, but must be adverse impacts to the business
itself from not being able to employ new hires immediately in secure
areas without escort.
Owners and operators of regulated vessels and facilities must be
assured that there are no other circumstances that would cause
reasonable suspicion regarding the new hire's ability to obtain a TWIC.
This information can come through the normal hiring process, reference
checks, or interviews. Also, if the Coast Guard, through its Captain of
the Port (COTP), has informed the owner/operator that the new hire
poses a security threat, the new hire may not have unescorted access to
secure areas of the vessel or facility. Only individuals who pass a
threat assessment and are issued a TWIC may have unescorted access to
secure areas of the vessel or facility.
[[Page 3498]]
(d). Access for Individuals With Lost/Stolen TWICs
Under the NPRM, we proposed requiring owners/operators to include
alternative security procedures in the TWIC Addenda. These alternative
procedures were to be used in various situations, such as when
individuals needed unescorted access to secure areas but had lost their
TWIC, had it stolen, or simply forgotten it that day. As discussed
below, we removed the TWIC Addendum requirement from the final rule,
but we wanted to include a provision to allow TWIC holders to continue,
for a short period, to have unescorted access to secure areas after
reporting their TWICs as lost, damaged, or stolen. As a result, this
final rule includes specific procedures for owners/operators to use in
the case of lost, damaged, or stolen TWICs. This procedure includes
having the individual report his/her card as lost, damaged, or stolen
to the TWIC Call Center and checking another form of identification
that meets 33 CFR 101.515, provided there are no other suspicious
circumstances that would cause an owner/operator to question the
veracity of the individual. In order to prevent this procedure from
becoming a significant loophole in the TWIC regulation, we require that
the individual be known to have had a valid TWIC and to have previously
been granted unescorted access, and have limited the use of the
procedure to seven (7) consecutive calendar days. This should provide
enough time for the replacement card to be produced and shipped to the
nearest enrollment enter, and for the individual to travel to that
center to pick up the replacement card.
(e). ``Employee Access Areas''
We intended for the term ``passenger access area'' to capture those
employees whose jobs are necessary solely for the entertainment of the
passengers of the vessel, such as musicians, wait staff, or casino
employees on a passenger vessel. Upon reviewing comments, however, we
realized that there are a variety of employees who may need to enter
non-passenger spaces, such as the galley, who would be included under
TWIC's applicability merely because of their need to enter these areas.
As such, we are adding a definition for ``employee access areas,'' for
use only by passenger vessels and ferries. An employee access area is a
defined space within the access control area of a ferry or passenger
vessel that is open to employees but not passengers. It is not a secure
area and does not require a TWIC for unescorted access. It may not
include any areas defined as restricted areas in the vessel security
plan (VSP). Note, however, that any employee that needs to have
unescorted access to areas of the vessel outside of the passenger or
employee access areas will need to obtain a TWIC.
(f) TWIC Addendum and Recordkeeping Requirements
We removed the TWIC Addendum requirement from the final rule when
we determined that the reader requirements would be delayed until a
subsequent rulemaking. The purpose of the TWIC Addendum was to allow
the owner/operator to explain how the readers would be incorporated
into their overall access control structure, within the standards
provided in the NPRM. With the removal of the reader requirements from
this final rule, we feel it is appropriate to also remove the TWIC
Addendum requirement. Additionally, because we envision the TWIC
Addendum to be a part of the subsequent rulemaking on reader
requirements, we felt it would be overly burdensome to also require a
TWIC Addendum at this point in time.
The recordkeeping requirements related to TWIC implementation have
also been removed from the final rule. We had proposed the requirements
because we believed they could be satisfied by using the TWIC readers,
which were also proposed. Due to our decision to remove the reader
requirements from this final rule, it makes sense to also remove the
recordkeeping requirements that were intrinsically tied to those
readers.
(g). Secure Area
We did not intend for the terms ``secure area'' and ``restricted
area'' to be read as meaning the same thing. Restricted areas are
defined already in the MTSA regulations as ``the infrastructure or
locations identified in an area, vessel, or facility security
assessment or by the operator that require limited access and a higher
degree of security protection.'' (33 CFR 101.105) Additionally, those
regulations spell out certain areas within vessels and facilities that
must be included as restricted areas (see 33 CFR 104.270, 105.260, and
106.265). This final rule defines ``secure area'' as meaning the area
over which an owner/operator has implemented security measures for
access control. In other words, the secure area would be anything
inside the outer-most access control point of a facility, and it would
encompass the entirety of a vessel or OCS facility.
We adopted this definition after much consideration, including
consideration of making only restricted areas secure areas. We
ultimately abandoned this option, however, when we realized that
equating the restricted area to the secure area would have required
that the readers and biometric verification be used at the entry points
of each restricted area. Because some facilities and vessels have
multiple restricted areas that are not always contiguous, this would
have likely meant that many owners/operators would have needed more
than one reader, increasing their compliance costs. Additionally, the
process of repeated biometric identification could have interfered with
the operations of facilities and vessels. Finally, we determined that
there are areas within some facilities that are not required to be
restricted areas that should be deemed secure areas, such as truck
staging areas, empty container storage areas, and roads leading between
the facility gates and the pier. Allowing persons who have not been
through the security threat assessment or are not escorted to have
access to these areas could provide them with the opportunity to access
the non-restricted areas of the facility to perpetrate a transportation
security incident (TSI). Pushing the secure area out beyond the
restricted area makes the event of an intentional TSI less likely. As a
result, we decided to define the secure area as the ``access control
area,'' thus limiting the number of readers required, as well as the
number of times biometric verification would need to take place, and
providing for the necessary level of security outside of restricted
areas. We note, however, that facility owners/operators have the
discretion to designate their entire facility as a restricted area. In
this situation, the restricted area and secure area would be one and
the same.
We recognize that many facilities may have areas within their
access control area that are not related to maritime transportation,
such as areas devoted to manufacturing or refining operations, and were
only included within the FSP because the owner/operator did not want to
have to install additional access control measures to separate the non-
maritime transportation related portions of their facility from the
maritime transportation related portions. Given the new obligations of
this TWIC final rule, however, these owners/operators may wish to
revisit this decision. As such, we are giving facility owners/operators
the option of amending their FSP to redefine their secure area, to
include only those portions of their facility that are directly
connected to maritime transportation or are at risk of being involved
in a transportation
[[Page 3499]]
security incident. These amendments must be submitted to the cognizant
COTP by July 25, 2007.
We realize that there may be some owners and operators of vessels
that would like the same option. However, vessels present a unique
security threat over facilities in that they may not only be targets in
and of themselves, but may also be used as a weapon. Due to this fact,
we will continue to define the entire vessel as a ``secure area,''
making exception only for those special passenger and employee access
areas which are discussed above. Vessel owners/operators need not
submit an amendment to the VSP in order to implement these special
areas, however they may do so, following the procedures described in
part 104.
(h). U.S. Vessels in Foreign Waters
Due in part to the unique operating requirements imposed on U.S.
Offshore Supply Vessels (OSVs) and Mobile Offshore Drilling Units
(MODUs) when operating in support of OCS facilities in foreign waters,
we determined that we must change some language from the proposed rule.
As such, we are adding a provision to the definition of secure area in
Sec. 101.105 that states that U.S. vessels operating under the waiver
provision in 46 U.S.C. 8103(b)(3)(A) or (B) have no secure areas. These
waiver provisions allow U.S. vessels to employ foreigners as crew in
certain circumstances. The effect of this change is to exempt these
vessels from the TWIC requirement while they are operating under the
referenced waivers. As soon as the vessel ceases operating under these
waiver provisions, it will be deemed to have secure areas as otherwise
defined, and TWIC provisions will apply.
(i). Area Maritime Security (AMS) Committee Members
The NPRM proposed requiring all members of AMS Committees to have a
TWIC. We recognize that large numbers of the members will either (1)
already have a TWIC, due to their role within the security organization
of a facility, or (2) already have undergone some type of comparable
background screening due to their position as a Federal, State, or
local law enforcement official. After further consideration, we believe
that anyone not falling into one of these categories could be
discouraged from volunteering to sit on an AMS Committee, due to the
cost of obtaining a TWIC. This could have a detrimental effect on the
AMS Committee, as there may be individuals who are experts in security
who would be (and in some cases already are) valuable parts of AMS
Committees, who would opt out of sitting on the Committee rather than
assume the cost of obtaining a TWIC. Therefore, we have changed the
final rule to allow AMSC members to serve on the AMSC after the
completion of a name-based terrorist check from TSA. If an AMSC member
requires unescorted access to secure areas of vessels or facilities
they will be required to obtain a TWIC. If, however, they do not
require unescorted access, but do need access to SSI, they must first
pass a TSA name based check at no cost to the AMSC member. The Federal
Maritime Security Coordinator for the member's particular AMSC (i.e.
COTPs) will forward the names of these individuals to TSA or Coast
Guard Headquarters for clearance prior to sharing SSI with these
members.
(j). Emergency Responders
We added a provision within 33 CFR 101.514 to allow State and local
emergency responders to gain access to secure areas without a TWIC
during an emergency situation. Not all emergency responders will fall
into the category of State or local officials. We feel it is imperative
that these individuals be allowed unescorted access to secure areas in
an emergency situation. Emergency responders who are not State or local
officials are encouraged to apply for a TWIC. Under the existing access
control requirements of 33 CFR 105.255, the owner or operator has
documented procedures for checking credentials prior to allowing access
and will maintain responsibility for all those granted access to a
vessel or facility, even in an emergency situation.
(k). Voluntary Compliance
The provisions that would have allowed vessel and facility owners/
operators to implement voluntary TWIC programs have been removed. These
provisions have been eliminated due to the fact that neither TSA nor
the Coast Guard can, at this time, envision being in a position to
approve voluntary compliance before the full TWIC program, (i.e.,
reader requirements) is in place. We will keep it in mind, however, as
we develop our NPRM to repropose reader requirements.
(l). Compliance Dates
We have also revised the compliance dates slightly. Vessels will
now have 20 months from the publication date of this final rule to
implement the new TWIC access control provisions. Facilities will still
have their compliance date tied to the completion of initial enrollment
in the COTP zone where the facility is located. This date will vary,
and will be announced for each COTP zone at least 90 days in advance by
a Notice published in the Federal Register. The latest date by which
facilities can expect to be required to comply will be September 25,
2008. Additionally, mariners will not need to hold a TWIC until
September 25, 2008. Mariners may rely upon their Coast Guard-issued
credential and a photo ID to gain unescorted access to secure areas to
any facility that has a compliance date earlier than September 25,
2008.
2. Changes From TSA's Proposed Rule
TSA is changing several sections of the proposed rule as a result
of comments received, new legislation, and additional analysis. The
changes include: (1) Establishing procedures for review of waiver
denials by an ALJ; (2) applying the hazmat and TWIC appeal procedures
to air cargo personnel; (3) amending the list of disqualifying criminal
offenses; (4) expanding the group of aliens who meet the immigration
standards; (5) amending the waiver standards for applicants
disqualified due to mental incapacity; (6) amending the fees for TWIC;
(7) revising the standard for drivers licensed in Mexico and Canada who
transport hazardous materials into and within the United States; and
(8) modifying the prohibitions on fraudulent use or manufacture of TWIC
or access control procedures.
(a). Review by Administrative Law Judge
We noted in the NPRM that if legislation was enacted after
publication of the final rule to require review by an Administrative
Law Judge of the denial of waiver requests by TSA, we would include
such a statutory mandate in the final rule. See 71 FR at 29421. The
Coast Guard and Maritime Transportation Act of 2006, Pub. L. 109-241,
was enacted on July 11, 2006. Section 309 of this Act requires the
Secretary of Homeland Security to establish an ALJ review process for
individuals denied a waiver by TSA. Accordingly, we are including the
ALJ review procedures in new Sec. 1515.11.
The ALJ review process set forth under Sec. 1515.11 does not alter
the substantive criteria under which TSA will grant or deny a waiver.
Therefore, this provision constitutes a rule of agency procedure and
may be implemented without prior notice and comment under the
Administrative Procedure Act, 5 U.S.C. 553(b)(A). See Hurson Assoc.
Inc., v. Glickman, 229 F.3d 277 (D.C. Cir. 2000) (rule eliminating
face-to-face process in agency review of requests for approval
[[Page 3500]]
was procedural and not subject to notice-and-comment rulemaking).
The new legislation requires ALJ review to be available for denials
of waivers. Under the rules waivers are not available for
determinations under Sec. 1572.107 that an applicant poses a security
threat, which usually is based on an intelligence-related check
involving classified information. However, we have considered that
there appears to be an intent that we provide for an ALJ review of such
determinations, considering, for example, that the statute provides for
ALJ review of classified information, which rarely is relevant to
waivers under the current rules. We have also considered that the
decision to determine whether an applicant poses a threat under Sec.
1572.107 is largely a subjective judgment based on many facts and
circumstances. The same is true for the decision to grant or deny a
waiver of the standards in Sec. Sec. 1572.103 (criminal offenses),
aliens who are in TPS under 1572.105, or 1572.109 (mental capacity).
Accordingly, we are providing for ALJ review of both a determination
that the applicant does not meet the standards in Sec. 1572.107, and a
denial of a waiver of certain standards in Sec. Sec. 1572.103,
1572.105, and 1572.109.
An applicant who has received an Initial Determination of Threat
Assessment based on Sec. 1572.107 may first appeal that determination
using the procedures in new Sec. 1515.9. If after that appeal TSA
continues its determination that the applicant is not qualified, the
applicant may seek ALJ review under Sec. 1515.11.
On the other hand, the determination that an applicant does or does
not have a disqualifying criminal offense listed in Sec. 1572.103,
immigration status in Sec. 1572.105, or mental capacity described in
Sec. 1572.109, largely involves an analysis of the legal events that
have occurred. Such analyses depend mainly on review of legal
documents. We have retained in Sec. 1515.5 the paper hearing process
for the appeal of an Initial Determination that an applicant is not
qualified under those sections. At the end of that appeal, if TSA
issues a Final Determination that the applicant is not qualified under
one of those sections, the applicant may seek review in the Court of
Appeals. At any time, however, the applicant may seek a waiver of
certain standards in those sections on the basis that, notwithstanding
a lack of qualification, the applicant asserts that he or she does not
pose a security threat and thus seeks to waive the subject standards.
The applicant initiates the request for a waiver using the procedures
in Sec. 1515.7. If a waiver is not granted, the applicant may seek
review by an ALJ under Sec. 1515.11.
For consistency, we are providing the same review processes for
hazardous materials endorsement (HME) applicants that we are providing
for TWIC applicants.
Paragraph 1515.11(a) of this new section specifies that the new
process applies to applicants who are seeking review of an initial
decision by TSA denying a request for a waiver under Sec. 1515.7 or
who are seeking review of a Final Determination of Threat Assessment
issued under Sec. 1515.9.
Section 1515.11(b) allows the applicant 30 calendar days from the
date of service of the determination to request a review. The review
will be conducted by an ALJ who possesses the appropriate security
clearances to review classified information. The rule sets forth the
information that the applicant must submit. This section clarifies that
the ALJ may only consider evidence that was presented to TSA at the
time of application in the request for a waiver or the appeal. If the
applicant has new evidence or information to support a request for
waiver, the applicant must file a new request for a waiver under Sec.
1515.7 or a new appeal under Sec. 1515.9 and the pending request for
review will be dismissed. Section 1515.11 provides detailed
requirements for the conduct of the review, such as requests for
extension of time and duties of the ALJ.
In accordance with the Coast Guard and Maritime Transportation Act,
this section provides for ALJ review of classified information on an ex
parte, in camera basis and consideration of such information in
rendering a decision if the information appears to be material and
relevant.
Paragraph 1515.11(f) provides that within 30 calendar days after
the conclusion of the hearing, the ALJ will issue an unclassified
decision to the parties. The ALJ may issue a classified decision to
TSA. The ALJ may decide that the decision was supported by substantial
evidence on the record or that the decision was not supported by
substantial evidence on the record. If neither party requests a review
of the ALJ's decision, TSA will issue a final order either granting or
denying the waiver or the appeal.
Paragraph 1515.11(g) describes the process by which a party may
petition for review of the ALJ's decision to the TSA Final Decision
Maker. The TSA Final Decision Maker will issue a written decision
within 30 calendar days after receipt of the petition or receipt of the
other party's response. The TSA Final Decision Maker may issue an
unclassified opinion to the parties and a classified opinion to TSA.
The decision of the TSA Final Decision Maker is a final agency order.
Paragraph 1515.11(h) states that an applicant may seek judicial
review of a final order of the TSA Final Decision Maker in accordance
with 49 U.S.C. 46110, which provides for review in the United States
Court of Appeals. Under sec. 46110 a party has 60 days after the date
of service of the final order to petition for review.
(b). Appeal Procedures for Air Cargo Personnel
In the final rule we are adding the appeal procedures that
currently apply to air cargo workers codified at 49 CFR parts 1540 to
1515. In the NPRM TSA stated that it may use the procedures in part
1515 for other security threat assessments, such as for air cargo
personnel. See 71 FR at 29418. At that time the air cargo proposed rule
had been published but was not yet final, and it proposed to use appeal
procedures that were essentially the same as for HME applicants. The
air cargo rule has now been made final. See 71 FR 30478 (May 26, 2006).
Because part 1515 was not yet final in the air cargo rule, we placed
the appeal procedures for the air cargo security threat assessment into
part 1540 subpart C, along with other procedures that apply to air
cargo threat assessments. In a further effort to harmonize security
threat assessments, we are now moving the appeal procedures for air
cargo personnel to part 1515. For consistency with the TWIC and HME
processes we are providing for review by an ALJ as described above.
We are also revising part 1540 subpart C to harmonize more with
part 1572. Thus, we are replacing ``individual'' with ``applicant'' to
refer to the person who is applying for a security threat assessment.
We are also revising Sec. 1540.205 to read essentially the same as
Sec. 1572.21 for TWIC, because it serves the same function. Note that
while the procedures for TWIC refer to CHRCs and other checks, the
procedures for air cargo personnel refer only to intelligence-related
checks, because they are not subject to the other checks conducted on
TWIC applicants.
(c). Disqualifying Criminal Offenses.
In this final rule, the list of criminal acts that disqualify an
applicant from holding an HME under 49 CFR 1572.103 now applies to TWIC
applicants. We believe equal treatment for transportation workers is
appropriate and consistent with the pertinent
[[Page 3501]]
statutory requirements. The standards for the HME rule were mandated by
the Uniting and Strengthening America by Providing Appropriate Tools
Required to Intercept and Obstruct Terrorism Act (USA Patriot Act) Pub.
L. 107-56, 115 Stat.272 (October 25, 2001). It provides that TSA
conduct a security threat assessment on applicants to determine if they
pose a ``security risk.'' The USA Patriot Act was enacted shortly after
and in response to the terrorist attacks on the United States on
September 11. As a result, we interpreted the language ``security
risk'' to mean a risk of terrorism or terrorist activity. Nothing in
the statute or the legislative history of the USA Patriot Act
contradicts this reading of the language. MTSA, enacted a year later,
requires a security threat assessment to determine whether an applicant
poses a ``terrorism security threat.'' We believe the security threat
assessment required under MTSA is the same threat assessment required
under the USA Patriot Act, even though the actual language differs
slightly.
In addition, TSA is making administrative and substantive changes
to this section. In the NPRM, TSA indicated that it was considering
changing the list of disqualifying crimes and asked for comment on the
list. TSA received significant comments from Congress and others
suggesting that the list of disqualifying crimes is overly broad, and
that some crimes had more of a nexus to terrorism than others. 152
Cong. Rec. 2120 (2006). See also Comments of House Committee on
Homeland Security on TSA and Coast Guard's Rule to Implement TWIC, July
6, 2006. TSA has evaluated the list of disqualifying crimes and decided
to fine tune the list to better reflect crimes that are more likely to
result in a terrorism security risk or a transportation security
incident, and thus should disqualify an applicant from receiving a
TWIC.
TSA is making a substantive change to this section concerning the
crimes of treason, sedition, espionage, and terrorism listed in Sec.
1572.103(a), which are permanently disqualifying. Applicants convicted
of these crimes are not eligible for a waiver. As we proposed to do in
the NPRM, TSA is adding conspiracy to commit these crimes to the list
of crimes that are not subject to a waiver request. TSA has determined
that a conviction of conspiracy to commit espionage, treason, sedition,
or terrorism is indicative of a serious, ongoing, unacceptable risk to
security and should not be waived under any circumstances.
TSA is changing the language in (a)(4) from ``a crime listed in 18
U.S.C. Chapter 113B--Terrorism'' to ``a federal crime of terrorism as
defined in 18 U.S.C. 2332b(g)'' or conspiracy to commit such crime, or
comparable State law. Section 2332b(g) is a definitional list that is
broader and more explicit than the crimes punished directly in Chapter
113B. We are making this change to more accurately capture all
pertinent terrorism-related crimes. Although we intended to be as
inclusive as possible with the previous language, experts at the
Department of Justice advise that the new language more accurately
captures the relevant criminal acts. TSA is adding felony bomb threat
in paragraph (a)(9) as a permanent disqualifier including maliciously
conveying false information concerning the deliverance, placement, or
detonation of an explosive or other lethal device against a state or
government facility, public transportation system or an infrastructure
facility. TSA is including this crime because it is, in essence, a
threat to commit an act of terrorism. We note that we have disqualified
an applicant with such crime under the authority of current paragraph
(b)(6) dishonesty, misrepresentation, or fraud. To be clear that this
crime is a permanent disqualifier, we are adding it as an independent
offense in Sec. 1572.103(a)(9). This offense includes making any
threat, or maliciously conveying false information knowing the same to
be false, concerning the deliverance, placement, or detonation of an
explosive or other lethal device in or against a place of public use, a
state or government facility, a public transportation system, or an
infrastructure facility.
Paragraph 1572.103(a)(9) is based in part on conduct prohibited by
several federal crimes. The first is 18 U.S.C. 844(e), which is found
in chapter 40 (Explosive Materials) of the federal criminal code.
Section 844(e) criminalizes the use of the mail, telephone, or other
instrument of interstate or foreign commerce to willfully make any
threat or maliciously convey false information knowing the same to be
false, concerning an attempt to kill, injure, or intimidate any
individual or unlawfully damage or destroy any building, vehicle, or
other real or personal property by means of an explosive. This crime is
already disqualifying under paragraph (a)(7). For inclusion in the list
of disqualifying crimes, TSA modified this description to broaden it
beyond a threat made through an instrument of interstate or foreign
commerce. This change provides a disqualification for purely intrastate
conduct that results in a felony conviction under State law. TSA also
modified the wording found in section 844(e) to include threats of use
of lethal weapons in addition to fire and explosives, such as
biological, chemical, or radiological weapons. Threats to use these
weapons are prohibited by other sections of the federal criminal code.
See, e.g., 18 U.S.C 175 (Biological weapons); 18 U.S.C. 229 (Chemical
Weapons); and 18 U.S.C. 2332h.
TSA has revised the language of paragraph (b) to clarify that the
crimes listed are disqualifying if either of the following are true:
(1) The applicant's date of conviction is within seven years of the
date of application; or (2) the applicant was incarcerated for that
crime and was released from incarceration within five years of the date
of application.
TSA is adding the offense of fraudulent entry into seaport secure
areas to the list of interim disqualifiers. This is a new provision in
18 U.S.C. 1036 that we believe is particularly relevant to this
rulemaking and any TWIC applicant.
TSA is also clarifying in paragraph (b)(2)(iii) that money
laundering is an interim disqualifier because it is encompassed under
the crimes of dishonesty and fraud and can be a means of funding
terrorism. It is known that criminals obtain money from the illegal
sale of drugs, firearms and other contraband, launder the money to hide
its origin and then funnel this money to terrorist groups. The money
laundering disqualifier is limited to convictions where the laundering
was for proceeds of other disqualifying criminal activities such as
drugs or weapon sales.
TSA is also clarifying that welfare fraud and passing bad checks
will not be considered crimes of dishonesty, fraud, or
misrepresentation for purposes of paragraph (b)(2)(iii). In some
states, conviction for passing a bad check of $100 is a felony and so
would be disqualifying for an HME or TWIC applicant. Similarly, a
conviction for welfare fraud can be a felony under state law, depending
on the circumstances of the case. TSA believes that these crimes
generally do not have a nexus to terrorism and therefore should not be
disqualifying under MTSA.
TSA is moving the definitions of ``explosive,'' ``firearm,'' and
``transportation security incident'' from Sec. 1572.3 to Sec.
1572.103, where the terms are used. This should help to eliminate
uncertainty about the crimes that are disqualifying. In addition, TSA
is adopting clarifying language concerning the kind of activity that
constitutes a ``transportation security incident.'' As required in
Sec. 7105 of SAFETEA-LU,
[[Page 3502]]
codified at 47 U.S.C. 5103a(g)(3), the definition now makes clear that
nonviolent labor-management activity is not considered a disqualifying
offense.
The list of disqualifying crimes in Sec. 1572.103 applies equally
to TWIC and HME applicants, thus the amendments apply to both.
(d). Immigration standards
The NPRM was drafted to permit non-resident aliens in the U.S. with
unrestricted authorization to work here to apply for and obtain a TWIC.
As a result of comments and the relatively common employment of foreign
specialists in certain maritime job categories who do not have
``unrestricted'' work authorization, we are expanding the group of
aliens who can apply to include certain restricted work authorization
categories.
For purposes of this discussion, it is helpful to explain that
there are two categories of U.S. visas: immigrant and nonimmigrant. As
provided in the immigration laws, an immigrant is a foreign national
who has been approved for lawful permanent residence in the United
States. Immigrants enjoy unrestricted eligibility for employment
authorization. Nonimmigrants, on the other hand, are foreign nationals
who have permanent residence outside the United States and who are
admitted to the United States on a temporary basis. Thus, immigrant
visas are issued to qualified persons who intend to live permanently in
the United States. Nonimmigrant visas are issued to qualified persons
with permanent residence outside the United States, but who are
authorized to be in the United States on a temporary basis, usually for
tourism, business, study, or short-or long-term work. Certain
categories of lawful nonimmigrant visas or status allow for restricted
employment authorization during the validity period of the visa or
status.
TSA has carefully reconsidered the immigration standards we
proposed in the NPRM in light of the comments we received relating to
immigration status and our own ongoing analysis. As a result, we are
amending the immigration standards for TWIC and HME applicants. The
critical issues we examined and on which we rely to determine whether
an alien should be permitted to apply for a TWIC or HME are: (1) The
statutory language regarding immigration status; (2) the degree to
which TSA can complete a thorough threat assessment both initially and
perpetually on the applicant; (3) the duration of the applicant's legal
status as of the date he or she enrolls and the degree to which we can
control possession of a TWIC once legal status ends; (4) the
restrictions, if any, that apply to the applicant's immigration status;
(5) particular maritime professions that commenters stated often
involve aliens; and (6) the checks done by the U.S. Department of State
(State Department) or other federal agency relevant to granting alien
status.
With respect to non-U.S. citizens, MTSA provides that an individual
may not be denied a TWIC unless he or she may be denied admission to or
removed from the United States under the Immigration and Nationality
Act (8 U.S.C. 1101, et seq.), or ``otherwise poses a terrorism security
risk to the United States\3\.'' 46 U.S.C. 70105(c). Under this final
rule, all applicants for TWICs must be lawfully present in the country.
Each of the permissible classes listed in Sec. 1572.105 has, as a
basis, lawful presence in the United States. Additionally, if the
duration of an applicant's legal status as of the date of enrollment
does not meet or exceed the period of validity of the credential, five
years, we have concerns about permitting the applicant to receive a
TWIC\4\. Given the statutory language--that we may deny a TWIC to an
applicant who ``may be denied admission to the United States or removed
from the United States under the Immigration and Nationality Act''--we
believe it is not advisable and may be inconsistent with MTSA to issue
a five-year credential to an individual whose known lawful status as of
the date of enrollment is a much shorter time period. The statutory
language reflects the evolving nature of immigration status and we
believe it is a significant distinction that warrants particular
treatment.
---------------------------------------------------------------------------
\3\ The governing statute for immigration standards for an HME
(49 U.S.C. 5103a) requires TSA to ``review relevant databases to
determine the status of an alien under U.S. immigration law,'' which
provides TSA more discretion to determine whether an alien in a
particular immigration class should hold an HME. In order to
maintain consistent standards among transportation workers where
possible, the immigration standards we are establishing in this
final rule for TWIC applicants will also apply to HME applicants.
However, as a threshold matter, HME applicants must first meet the
standards to hold a commercial driver's license promulgated by the
U.S. Department of Transportation, which may include immigration
status.
\4\ The TSA system is not currently programmed to issue
credentials with varying expiration dates; all TWICs will expire
five years from the date on which they were issued. We plan to
explore modifying aspects of the TSA system as the program matures.
---------------------------------------------------------------------------
Changes to alien status occur frequently and are difficult to track
accurately in real time and perpetually, both of which are necessary to
ensure that a TWIC holder remains in legal status. Where we can achieve
a level of certainty that the applicant will not possess a TWIC longer
than his or her lawful presence and commenters have indicated there is
a need for certain short-term aliens to hold a TWIC, we will consider
issuing them a credential.
Many aliens in lawful nonimmigrant status are not eligible to work
in the United States or their employment authorization is restricted in
some way, usually to the particular sponsoring employer or entity. With
the exception of students in valid M-1 nonimmigrant status who are
enrolled in the U.S. Merchant Marine Academy or a comparable State
school and must complete vocational training, we do not believe it
would be consistent with MTSA to permit lawful nonimmigrants that are
ineligible to work or conduct business in the United States to apply
for a TWIC. Also, if the employment restriction placed on the
nonimmigrant generally prevents the individual from working in a
maritime facility or vessel, we do not believe a TWIC should be
granted. The final rule now lists the nonimmigrant classifications with
restricted employment authorization that have a nexus to the maritime
industry. Aliens in these nonimmigrant categories with restricted
employment authorization may apply for a TWIC notwithstanding the fact
that their immigration status may expire in less than five years,
because we are requiring additional measures to ensure that the TWIC
expires after the employment that requires unescorted access to secure
areas ends.
The final rule now requires employers of TWIC holders who are
lawful nonimmigrants with restricted authorization to work to retrieve
the applicant's TWIC when the job for which the nonimmigrant status was
granted is complete. The employer in this situation should be well
aware that the employment status has ended because the visa was issued
to facilitate a specific job or employment with the employer. However,
if an employer terminates the employment relationship with the alien
working on a restricted visa, or that alien quits working for the
employer, the employer is required to notify TSA within 5 days and
provide the TWIC to TSA if possible. Additionally, all applicants must
return their TWIC to TSA when they are no longer qualified for it, and
a visa applicant's TWIC expires when either the employment ends or the
visa expires. These requirements should minimize the likelihood that an
alien will continue to possess a TWIC and have unescorted access to
secure areas
[[Page 3503]]
of the maritime industry after his or her legal status to do so
expires.
The requirement to return a TWIC to TSA when the pertinent
employment ends does not apply to employers of lawful nonimmigrants
with unrestricted authorization to work or employers of unrestricted
lawful nonimmigrants. Under the immigration laws, the status assigned
to an alien carries with it the determination that the individual may
work in the United States with or without restriction. Where the alien
status includes employer sponsorship as a condition of legal presence,
we believe it is appropriate to require the employer to return the
credential to TSA once that relationship ends. However, in the cases of
alien status that do not carry employment restrictions, we do not
believe it is advisable at this time to require any employer action.
The lawful nonimmigrant who is not under employment restriction may
cease working for an employer and maintain legal status. Retrieving the
TWIC at this point would not be appropriate. If the applicant loses
lawful status, under the rule, he or she must report any disqualifying
offense to TSA and surrender the TWIC. In addition, the enrollment
record for each applicant contains contact information for employers,
and if TSA determines that an applicant has lost legal status, we would
generally have the information necessary to contact the employer and
the TWIC holder.
To satisfy the second prong of MTSA's immigration status
requirement, that a TWIC holder does not pose a terrorism security
threat to the United States, TSA considers a variety of factors. TSA
must be able to conduct a comprehensive threat assessment of the
applicant. As in all of TSA's security threat assessment programs, we
will conduct a comprehensive threat assessment of each applicant upon
enrollment, and then will vet the applicants perpetually using
appropriate databases throughout the five-year term of the TWIC. We
consider the initial and perpetual vetting to be equally important in
maintaining a high level of confidence in the TWIC population. To the
extent that a full threat assessment cannot be completed on an
applicant initially or perpetually, TSA has concerns about granting
that applicant unescorted access to secure areas of maritime facilities
and vessels.
Many immigration statuses change over time, and TSA generally is
not in a position to perpetually vet the immigration status of an
applicant. We are reluctant to provide a five-year TWIC under these
circumstances unless we achieve some level of control over the actual
credential through the applicant's employer to minimize the likelihood
that an alien who has lost lawful status keeps the credential.
A significant component of a comprehensive security threat
assessment is a fingerprint-based criminal history records check for
arrests, indictments, wants, warrants, and serious felony convictions.
If we are unable to complete such a check because we cannot access the
criminal records of the country in which an applicant has lived for
many years, we have concerns that we cannot make an accurate assessment
of the individual. Many U.S. workers commented on this fact, in some
cases asserting that U.S. citizens are held to a higher standard than
workers born abroad because of the inability to do a complete criminal
records check on foreign-born applicants. We do not believe that this
situation alone constitutes justification to deny non-citizens a TWIC,
particularly since U.S. citizens may be born abroad, or spend
substantial time abroad. However, it does give rise to a legitimate
security concern. Consequently, we must make every effort to minimize
the likelihood that someone with malicious intent can enter the United
States legally or illegally, hide significant prior criminal or
terrorist activity, and obtain unescorted access to secure areas of the
maritime industry.
To reduce the likelihood that TWICs will be issued to someone with
malicious intent, we are changing the immigration standards in a
variety of ways to reduce those eligible for TWICs to only those
individuals on whom the Department of State and/or DHS can perform an
adequate security review. First, we are not permitting certain aliens
in lawful nonimmigrant status with unrestricted employment
authorization to apply for a TWIC. We are not permitting aliens in
valid S-5 or S-6 lawful nonimmigrant status with unrestricted
authorization to work in the United States to apply for a TWIC.
Individuals who are in S-5 and S-6 lawful nonimmigrant status are
informants providing information relating to criminal or terrorist
organizations. Typically, individuals who are able to provide this kind
of information to law enforcement personnel in the United States have
been engaged in criminal or terrorist activity themselves. For this
reason, we believe they pose a security risk and should not be granted
a TWIC. Additionally, this status is granted to no more than 250
individuals per year, and so the likelihood that preventing these
individuals from applying for a TWIC would adversely impact a
significant number of applicants or the maritime industry is virtually
nonexistent. Finally, the S-5 and S-6 status requires frequent contact
with U.S. law enforcement personnel for approximately three years,
after which time the applicant may be recommended for lawful permanent
resident status. After these individuals satisfy the conditions of
their status and become lawful permanent residents, the risk they
initially present would effectively be mitigated and they would be
permitted to apply for a TWIC.
We do not believe it is advisable to permit lawful nonimmigrants in
K-1 or K-2 status to apply for a TWIC. These individuals include the
fianc[eacute]s and minor children of fianc[eacute]s of U.S. citizens.
Their lawful status expires in just four months. We believe these
individuals can be escorted under the final rule until they obtain
permanent or other lawful status.
Aside from holders of the S-5 and S-6 and K-1 and K-2 statuses all
lawful nonimmigrants with unrestricted authorization to work in the
United States may apply for a TWIC.
Second, we are revising the rule to treat U.S. nationals, that is,
principally American Samoans, as we treat U.S. citizens.\5\ We
accomplished this change by adding a definition to the rule for
``National of the United States,'' which means a citizen of the United
States or an individual who owes permanent allegiance to the United
States. This change is consistent with longstanding principles of
immigration law and we believe would not introduce a security threat.
Similarly, the final rule permits citizens of the Federated States of
Micronesia, the Republic of the Marshall Islands, and Palau who have
been admitted as nonimmigrants under the Compacts of Free Association
between the United States and those countries to apply for a TWIC. The
United States has entered into treaties with these countries that
afford their citizens preferred treatment. For instance, citizens of
these countries may reside indefinitely and work in the United States
without restriction. Therefore, we believe it is appropriate to permit
these individuals to apply for a TWIC.
---------------------------------------------------------------------------
\5\ Note that Swains Island has been incorporated into American
Samoa and thus does not need a separate reference. (48 USC 1662) In
addition, this includes nationals of the Commonwealth of the
Northern Mariana Islands.
---------------------------------------------------------------------------
Third, in response to many comments about the use of foreign
professionals in the maritime industry for specialty work, we are
permitting certain lawful
[[Page 3504]]
nonimmigrants with restricted authorization to work in the United
States to apply for a TWIC. There is a longstanding practice of
employing non-U.S. citizens to complete specialized maritime tasks,
such as maintaining vessel engines and motors. In addition, many
international maritime companies transfer staff from abroad into the
United States for short or long-term periods, and many of these
individuals must work at maritime facilities or on vessels. Denying
this segment of the industry the opportunity to apply for a TWIC could
adversely impact maritime operations and economic vitality. However, to
mitigate our concerns about the inability to complete a thorough
initial and perpetual threat assessment on individuals who have not
lived in the United States for any significant period of time and who
are authorized to remain in the United States for less than five years,
we are adding requirements for employers and affected workers to return
the TWIC to TSA when the job is completed or the worker otherwise
ceases employment with the company.
We received a comment concerning aliens who are religious personnel
in valid R-1 lawful nonimmigrant status with restricted employment
authorization. The commenter noted that vessel crew members may request
spiritual guidance or religious services when their vessel docks at a
port in the United States, and religious workers in valid R-1 status
should be permitted to apply for a TWIC to board the vessel. Seafarer
Welfare Advocates are eligible for TWICs as long as they meet the TWIC
rulemaking eligibility requirements; however, there are no exemptions
for aliens holding R-1 visas. We believe that individuals with R-1
visas can be escorted because any individual providing religious
services to crew members on a vessel would be on board the vessel for
relatively short periods of time and would most likely be in the
company of TWIC holders during that time. While we do not believe that
these individuals need to hold a TWIC to carry out their religious or
spiritual functions, they may apply and will be issued TWICs if they
meet the eligibility requirements.
Fourth, we are permitting students of the United States Maritime
Academy and comparable State maritime colleges in valid M-1 lawful
nonimmigrant status to apply for a TWIC. These individuals clearly have
a need for unescorted access to maritime facilities and vessels as they
complete their vocational training in the United States.
Fifth, we are adding individuals who are in TPS to the group of
applicants who may apply for a waiver. Temporary Protected Status is a
temporary immigration status granted to eligible nationals of
designated countries. The Secretary may designate a country for TPS
when it is determined that (1) there is an ongoing armed conflict in
the state and, due to that conflict, return of nationals to that state
would pose a serious threat to their personal safety; (2) the state has
suffered an environmental disaster resulting in a substantial,
temporary disruption of living conditions, the state is temporarily
unable to handle adequately the return of its nationals, and the state
has requested TPS designation; or (3) there exist other extraordinary
and temporary conditions in the state that prevent nationals from
returning in safety.
TPS beneficiaries are not required to leave the United States and
may obtain work authorization for the initial TPS period and for any
extensions of the designation. TPS does not automatically lead to
permanent resident status. A TPS designation may be effective for a
minimum of 6 months and a maximum of 18 months. Before the end of the
TPS designation period, the conditions that gave rise to the TPS
designation are reviewed. Unless a determination is made that those
conditions are no longer met, the TPS designation will be extended for
6, 12, or 18 months. If the conditions that led to the TPS designation
are no longer met, the TPS designation is terminated. Designations,
extensions, terminations and other documents regarding TPS are
published in the Federal Register. Currently, nationals of Somalia,
Sudan, Burundi, Honduras, Nicaragua, and El Salvador have TPS status in
the United States.
In many cases, TPS status for a particular country will remain in
place for several years. Thus, nationals of these countries may be in
the United States for a decade or more and establish a record that TSA
can effectively review for a security threat assessment. Based on this
and the unrestricted work authorization, we have determined that under
certain circumstances, TPS recipients should be permitted to hold a
TWIC. Our ability to complete a thorough threat assessment and the
record that is disclosed during the threat assessment will be critical
factors in determining if a waiver should be granted to a TPS
recipient. In addition, letters of reference from employers, teachers,
and religious or spiritual personnel are also important to reach a
determination on a waiver. Part 1515 lists the information TSA reviews
in making waiver determinations, which now also apply to TPS
recipients.
Finally, on October 17, 2006 Congress passed the John Warner
National Defense Authorization Act for Fiscal Year 2007 (P.L. 109-364).
In that Act, Congress amended 46 U.S.C. 8103 to permit an alien allowed
to be employed in the U.S. under the Immigration and Nationality Act
who meets additional requirements for service as a steward aboard large
passenger vessels to obtain an MMD. Since all MMD holders must obtain a
TWIC, we have extended this statutory requirement to TWIC as well.
Individuals who would satisfy the statutory requirements would most
likely, if not always, possess a C-1/D Crewman Visa. The C-1/D visa has
been added to the list of acceptable restricted nonimmigrant visas.
Table 2 indicates the types of visas that a lawful nonimmigrant
with a restricted visa must hold in order to demonstrate eligibility to
apply for a TWIC.
Table 2.--Types of Visas That a Nonimmigrant With a Restricted Visa Must
Hold
------------------------------------------------------------------------
Nonimmigrant
Visa classifications Description/information
------------------------------------------------------------------------
C-1/D............ Combined Transit For alien crewmen serving in good
and Crewman Visa. faith in a capacity required for
8 CFR 214.2(c)(D). normal operation and service on
board a vessel who intends to
land temporarily and solely in
pursuit of his calling as a
vessel crewman.
E-1.............. Treaty Trader (see For nationals of a country with
8 CFR which the United States
214.2(e)(1)). maintains a treaty of commerce
and navigation who is coming to
the United States to carry on
substantial trade, including
trade in services or technology,
principally between the United
States and the treaty country,
or to develop and direct the
operations of an enterprise in
which the national has invested.
The employee must intend to
depart the United States upon
the expiration or termination of
E-1 status.
[[Page 3505]]
E-2.............. Treaty Investor An alien employee of a treaty
(see 8 CFR investor, if otherwise
214.2(e)(2)). admissible, may be classified as
E-2 if the employee is in or is
coming to the United States to
engage in duties of an executive
or supervisory character, or, if
employed in a lesser capacity,
the employee has special
qualifications that make the
alien's services essential to
the efficient operation of the
enterprise. The employee must
have the same nationality as the
principal alien employer. In
addition, the employee must
intend to depart the United
States upon the expiration or
termination of E-2 status.
E-3.............. Australian in The E-3 is a new visa category
Specialty only for Australians coming to
Occupation. the U.S. to work temporarily in
a specialty occupation.
H-1B............. Specialty Persons who will perform services
Occupations (see in a specialty occupation which
8 CFR requires theoretical and
214.2(h)(4)). practical application of a body
of highly specialized knowledge
and attainment of a
baccalaureate or higher degree
or its equivalent (in the
specialty) as a minimum
requirement for entry into the
occupation in the US.
H-1B1............ Free Trade Foreign nationals of countries
Agreement (FTA) which have Free Trade Agreements
Professional Visa with the United States and are
(H-1B1). engaged in a specialty
occupation are eligible for the
H-1B1 FTA Professional Visa
[Free Trade Agreement (FTA)
Professional Visa]. A U.S.
employer must furnish a job
letter specifying the details of
the temporary position
(including job responsibilities,
salary and benefits, duration,
description of the employing
company, qualifications of the
applicant) and confirming the
employment offer.
L-1.............. Executive, An alien who within the preceding
managerial. three years has been employed
abroad for one continuous year
by a qualifying organization may
be admitted temporarily to the
United States to be employed by
a parent, branch, affiliate, or
subsidiary of that employer in a
managerial or executive
capacity, or in a position
requiring specialized knowledge.
O-1.............. Extraordinary An alien who has extraordinary
Ability or ability in the sciences, arts,
Achievement. education, or athletics, which
has been demonstrated by
sustained national or
international achievement.
TN............... North American The nonimmigrant NAFTA
Free Trade Professional (TN) visa allows
Agreement (NAFTA) citizens of Canada and Mexico,
visas for as NAFTA professionals, to work
Canadians and in the United States.
Mexicans.
M-1.............. Vocational student This visa category is for a fixed
time needed to complete the
course of study and training.
For purposes of the final rule,
only students who are attending
the U.S. Merchant Marine Academy
or comparable State maritime
school and hold this visa are
permitted to apply for a TWIC.
------------------------------------------------------------------------
We are making an additional change to the application information
required of TWIC applicants who are not U.S. nationals. In 49 CFR
1572.17, we are requiring all aliens to bring to enrollment the
documents that verify the immigration status they are in as of the date
of enrollment. We will examine the documents to ensure that the
applicant is eligible to apply for a TWIC under the immigration
standards and then scan the documents into the TSA system so that they
become part of the enrollment record.
In addition, we are requiring drivers with commercial licenses from
Canada to provide a Canadian passport at enrollment, if they do not
hold a Free and Secure Trade (FAST) card \6\. We know that Canadian
TWIC applicants who hold a FAST card have completed a thorough
background check by the Canadian government. However, Canadian
provinces do not always require Canadian citizenship or in some cases,
lawful presence, when issuing a drivers license. Therefore, we do not
believe it is advisable to issue a TWIC based solely on a Canadian
driver's license. We are not requiring this of Mexican-licensed drivers
who apply for a TWIC because they must obtain border crossing documents
to enter the United States, which are issued after the Mexican
government has completed a review of the individual and determined they
are Mexican citizens or are lawfully present in Mexico.
---------------------------------------------------------------------------
\6\ The FAST program is a cooperative effort between the Bureau
of Customs and Border Patrol (CBP) and the governments of Canada and
Mexico to coordinate processes for the clearance of commercial
shipments at the U.S.-Canada and U.S.-Mexico borders. Participants
in the FAST program, which requires successful completion of a
background records check, may receive expedited entrance privileges
at the northern and southern borders.
---------------------------------------------------------------------------
(e). Mental Incapacity
TSA is changing the waiver process to permit applicants who in the
past have been involuntarily committed to a mental health facility or
declared mentally incapable of handling their affairs to apply for a
waiver without always having to provide documentation showing that the
disqualifying condition is no longer present, as we have previously.
For example, there may be cases in which an individual has an addiction
to drugs or alcohol and is involuntarily committed to a mental health
facility to complete rehabilitation. If the individual wishes to apply
for a waiver, documents showing that applicant completed rehabilitation
successfully would be critical to TSA's determination on the waiver
request. The individual may no longer use illegal drugs or drink
alcohol, but technically they may still have an addiction. Therefore,
we believe TSA should decide these waiver requests on a case-by-case
basis. The documentation submitted to TSA in support of the waiver
request will be very important in making the waiver determination.
Applicants and/or their representatives should carefully consider and
include all available information TSA can use to determine if the
applicant poses a security threat.
(f). Fees
Section 520 of the 2004 DHS Appropriations Act, Pub. L. 108-90,
requires TSA to collect reasonable fees for providing credentialing and
background investigations in the field of transportation. Fees may be
collected to pay for the costs of: (1) Conducting or obtaining a CHRC;
(2) reviewing available law enforcement databases, commercial
databases, and records of other governmental and international
agencies; (3) reviewing and adjudicating requests for waivers and
appeals of TSA decisions; and (4) other costs related to
[[Page 3506]]
performing the security threat assessment or the background records
check, or providing the credential. Section 520 requires that any fee
collected must be available only to pay for the costs incurred in
providing services in connection with performing the security threat
assessment, or the background records check, or providing the
credential. The funds generated by the fee do not have a limited period
of time in which they must be used. They can be used until they are
fully spent. TSA has also established the fees in this final rule
pursuant to the requirements of the General User Fee Statute (31 U.S.C.
9701), which requires fees to be fair and based on: (1) Costs to the
government; (2) the value of the service or thing to the recipient; (3)
public policy or interest served; and (4) other relevant facts.
In this final rule, TSA uses slightly different terminology to
describe the three types of fees and their segments than was used in
the NPRM. The Standard TWIC Fee is the fee that an applicant would pay
to obtain or renew a TWIC. The Standard TWIC Fee contains the following
segments:
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 Sec. 1572.5(e), or holds an MMD or License as provided in
Sec. 1572.19(b). The Reduced TWIC fee is made up of the following
segments:
Enrollment Segment, and
Reduced Card Production/STA Segment (referred to as the
``reduced fee for the Security Threat Assessment/Credential Production
Fee'' in the NPRM).
The Card Replacement Fee is the fee that an applicant would pay to
replace a credential that has been lost, stolen, or damaged and is made
up of the Card Replacement Segment.
In the TWIC NPRM, TSA proposed to set the Standard TWIC Fee at
$129-149, including the Enrollment Segment of $45-65, the Full Card
Production/Security Threat Assessment (STA) Segment of $62, and the FBI
Segment of $22. TSA proposed that the Reduced TWIC Fee be set at $95-
115, including the Enrollment Segment of $45-65 and the Reduced Card
Production/STA Segment of $50.\7\ TSA proposed that the Card
Replacement Fee, composed of the Card Replacement Segment, be set at
$36. See 71 FR at 29405, 29428-29431.
---------------------------------------------------------------------------
\7\ While the proposed rule text at Sec. 1572.503(2) indicated
that the Reduced TWIC Fee included both the Enrollment Segment and
the Reduced Card Production/STA Segment, it erroneously listed the
fee at $50. The total for this fee was correctly stated in the
preamble as $95. See 98 FR at 29045.
---------------------------------------------------------------------------
In this final rule, TSA establishes the Standard TWIC Fee at $139-
159, including the Enrollment Segment of $45-65, the Full Card
Production/STA Segment of $72, and the FBI Segment of $22.\8\ The total
Reduced TWIC Fee is set at $107-127, including the Enrollment Segment
of $45-53 and the Reduced Card Production/STA Segment of $62.
---------------------------------------------------------------------------
\8\ If the FBI changes its fee in the future, TSA will collect
the amended fee.
---------------------------------------------------------------------------
In this final rule, TSA establishes the Replacement Card Fee of
$36, as was in the NPRM. TSA's analysis shows that this fee is costed
out at $60, but is not including that amount in the final rule due to
the large difference in amount from the NPRM. TSA proposes in this
final rule to change the Replacement Card Fee to $60 based on the
reevaluation of costs elements discussed below, and requests comments
only on this fee. See Request for Comments in Section VI.
Table 3 compares the NPRM per person fee and segments amounts to
the final rule per person fee and segments amounts:
---------------------------------------------------------------------------
\9\ While this rule sets a Card Replacement Fee of $36, TSA is
proposing that the Card Replacement Fee be increased to $60 and is
seeking comment only on the Card Replacement Fee. See Request for
Comments Section VI.
Table 3.--TWIC Per Person Fee Segments--NPRM vs. Final Rule
----------------------------------------------------------------------------------------------------------------
NPRM Final rule $ Increase % Increase
----------------------------------------------------------------------------------------------------------------
Standard TWIC Fee
Enrollment Segment.............................. $45-$65 $45-$65
Full Card Production/STA Segment (for 62 72 $10
Individuals requiring a full STA)..............
FBI Segment:.................................... 22 22
---------------------------------------------------------------
Total....................................... 129-149 139-159 10 7.86-6.7
Reduced TWIC Fee
Enrollment Segment.............................. 45-65 45-65
Reduced Card Production/STA Segment (for 50 62 12
Individuals not requiring a full STA):.........
---------------------------------------------------------------
Total....................................... 95-115 107-127 12 12.6-10.4
Card Replacement Fee
Card Replacement Segment........................ 36 60 \9\ 24 66.7
----------------------------------------------------------------------------------------------------------------
No applicant will be required to pay a fee until after TSA
publishes this notice in the Federal Register.
Cost Components
The NPRM identified the cost components from which the proposed
fees were calculated. These are the same components that were used to
calculate the final fees. However, the fees themselves have changed for
the reasons described in this section. Since publication of the NPRM,
the TWIC program has reevaluated the cost estimates that drive the TWIC
fees. Table 4 lists the cost components of the TWIC Program as
estimated for the NPRM and compares them to the costs estimated for the
final rule. These cost components are used to derive the TWIC fees that
must be collected to fully recover program costs.
[[Page 3507]]
Table 4.--5-Year Total TWIC Cost Components--NPRM vs. Final Rule
--------------------------------------------------------------------------------------------------------------------------------------------------------
Standard TWIC Reduced TWIC Card
Cost components NPRM Final rule Percent change fee fee replacement fee
--------------------------------------------------------------------------------------------------------------------------------------------------------
Enrollment/Issuance................................ $65,212,285 $65,980,199 1 X X X\10\
Threat Assessments \11\............................ 42,463,118 32,120,927 -24 X X \12\ ...............
IDMS............................................... 18,783,000 44,190,882 135 X X X
Card Production.................................... 20,427,000 28,346,657 39 X X X
Program Support.................................... 22,641,000 18,810,786 -17 X X X
--------------------------------------------------
Total.......................................... 169,526,403 189,449,451 12
--------------------------------------------------------------------------------------------------------------------------------------------------------
As shown by Table 4, some of the cost components decreased from the
NPRM costs estimates, while some increased. The Enrollment/Issuance
cost component increased by approximately 1 percent due to further
analysis that indicated a need to account for the contractor fee
associated with replacing a lost, stolen, or damaged card. This
contractor fee is estimated at $5. This card re-issuance cost within
the Card Replacement Fee was not included as part of the NPRM estimate.
---------------------------------------------------------------------------
\10\ While the majority of the Enrollment/Issuance requirements
have already been satisfied by the applicant through initial
enrollment, there are still some enrollment/issuance functions
associated with these card replacements, such as overhead.
Therefore, these applicants will not be burdened with the normal
enrollment/issuance cost component.
\11\ The Threat Assessments, IDMS, Card Production and Program
Support Components makeup the Card Production/STA and the FBI
Segments.
\12\ While the majority of the Threat Assessment requirements
have already been satisfied by the applicant through participation
in a previous security fee, there are still some threat assessment
functions associated with these applicants, such as CSOC activities.
Therefore, these applicants will pay the Reduced Card Productions/
STA Segment.
---------------------------------------------------------------------------
The Threat Assessments cost component decreased overall by
approximately 24 percent. While the costs associated with adjudication
by ALJs have been added, cost reductions for perpetual vetting and
threat assessment gateway account for the overall reduction.
The IDMS cost component increased based on a re-evaluation of the
overall IDMS costs. The program office identified: (1) The need to
increase the hardware and software required to obtain a Security
Certification & Accreditation, and to support the full volume of TWIC
applicants; (2) system changes required to address security
vulnerabilities; and (3) increases in contractor support necessary for
systems operations and maintenance. The total increase is estimated at
$19 per credential produced.
The Card Production cost increased by approximately 39 percent
based on two factors. First, in order to produce cards more rapidly
during the initial enrollment, additional shifts were required at the
card production facility. This decision was made in order to address
comments to the NPRM that cards needed to be produced as quickly as
possible. Second, TSA and Coast Guard received comments to the NPRM on
the need to support contactless biometric authentication based on the
harsh conditions of the maritime environment and operational
efficiencies. In order to address these comments TSA and the Coast
Guard have established a NMSAC working group to recommend a contactless
TWIC technology specification. Second, we have added a fee to cover
future technology-related product improvements to the TWIC system and
credential. Technology improvements occur rapidly and in order to take
advantage of the efficiency these improvements provide, we must plan
for that cost. Building in the cost of technology and system
improvements is a common practice for programs that rely so heavily on
software and hardware to collect and transmit large amounts of
information.
The Program Support cost decreased by approximately 17 percent
because the program office reevaluated and decreased program staffing
levels required to support the maritime population after the initial
maritime enrollment period. Additionally, Program Support costs related
to interagency communication requirements also decreased. These cost
reductions resulted in approximately a $2 per card decrease.
The discussion below describes the cost components associated with
each type of fee, Standard, Reduced and Card Replacement. Although the
overall program costs increased by approximately 12 percent, the three
types of TWIC fees did not increase by 12 percent as each fee is
composed of different cost components.
The per person cost segments for the Standard TWIC Fee are derived
from all five of the cost components in the Total TWIC Cost Components
table above--Enrollment/Issuance, Threat Assessments,\13\ IDMS, Card
Production, and Program Support. Note that the IDMS, Card Production,
Program Support cost components makeup the Card Production/STA and FBI
segments of the Standard and Reduced TWIC Fees. The net increase in the
total for the Standard TWIC Fee is based primarily on the increase of
the IDMS and Card Production cost components, as described above in the
analysis of the TWIC cost components.
---------------------------------------------------------------------------
\13\ The Threat Assessment cost component includes the FBI
Segment of the Standard TWIC Fee.
---------------------------------------------------------------------------
The per person cost segments for the Reduced TWIC Fee are also
derived from five of the cost components in the Total TWIC Cost
Components Table 4--Enrollment/Issuance, Threat Assessments,\14\ IDMS,
Card Production, and Program Support. The net increase in the Reduced
TWIC Fee is based on the reevaluation of the cost components, as
described in the analysis of the TWIC cost components above. It should
be noted that the reduced fee does not include the entire Threat
Assessments cost component. Because the Reduced TWIC Fee does not
include this entire cost component, this fee does not entirely benefit
from the reduction in the Threat Assessments cost component, and
therefore, increased at a greater percentage than the Standard TWIC
Fee.
---------------------------------------------------------------------------
\14\ As stated in footnote 11, although the majority of the
Threat Assessment requirements have already been satisfied by the
applicant through participation in a previous security fee, there
are still some threat assessement functions associated with these
applicants.
---------------------------------------------------------------------------
The per person cost for the Card Replacement Fee is derived from
four of the cost components in the Total TWIC Cost Components Table 4--
Enrollment/Issuance,\15\ IDMS, Card Production, and Program Support.
The net increase in the Card Replacement Fee of $24 is based on the
reevaluation of the cost components, as described in the analysis of
TWIC cost components
[[Page 3508]]
above. It should be noted that this fee does not include the entire
Enrollment/Issuance cost component or any of the Threat Assessments
cost component. Because this fee does not include the Threat
Assessments cost component, this fee does not benefit from the
reduction in the Threat Assessments cost component. Thus, the Card
Replacement Fee has increased at a greater percentage than the Standard
and Reduced TWIC Fees. Because this fee is substantially higher than
that in the NPRM, TSA is establishing $36 as the fee in this rule but
is proposing to increase the fee to $60 and is providing the public an
opportunity to submit additional comments on the card replacement fee.
See Request for Comments in Section VI.
---------------------------------------------------------------------------
\15\ As