[Federal Register Volume 78, Number 56 (Friday, March 22, 2013)]
[Proposed Rules]
[Pages 17782-17833]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-06182]
[[Page 17781]]
Vol. 78
Friday,
No. 56
March 22, 2013
Part II
Department of Homeland Security
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Coast Guard
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33 CFR Parts 101, 104, 105, et al.
Transportation Worker Identification Credential (TWIC)--Reader
Requirements; Proposed Rule
Federal Register / Vol. 78 , No. 56 / Friday, March 22, 2013 /
Proposed Rules
[[Page 17782]]
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DEPARTMENT OF HOMELAND SECURITY
Coast Guard
33 CFR Parts 101, 104, 105 and 106
[Docket No. USCG-2007-28915]
RIN 1625-AB21
Transportation Worker Identification Credential (TWIC)--Reader
Requirements
AGENCY: Coast Guard, DHS.
ACTION: Notice of proposed rulemaking.
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SUMMARY: In this Notice of Proposed Rulemaking (NPRM), the Coast Guard
proposes to require owners and operators of certain vessels and
facilities regulated by the Coast Guard to use electronic readers
designed to work with the Transportation Worker Identification
Credential (TWIC) as an access control measure. This NPRM also proposes
additional requirements associated with electronic TWIC readers,
including recordkeeping requirements for those owners and operators
required to use an electronic TWIC reader, and security plan amendments
to incorporate TWIC requirements. The TWIC program, including the
proposed TWIC reader requirements in this rule, is an important
component of the Coast Guard's multi-layered system of access control
requirements and other measures designed to enhance maritime security.
This rulemaking action, once final, would build upon existing Coast
Guard regulations designed to ensure that only individuals who hold a
TWIC are granted unescorted access to secure areas at those locations.
The Coast Guard has already promulgated regulations pursuant to the
Maritime Transportation Security Act of 2002 (MTSA) that require
mariners and other individuals to obtain a TWIC and present it for
inspection by security personnel prior to gaining access to such secure
areas. By requiring certain vessels and facilities to perform TWIC
inspections using electronic TWIC readers, this rulemaking would
further enhance security at those locations. This rulemaking would also
implement the Security and Accountability For Every Port Act of 2006
electronic TWIC reader requirements.
DATES: Comments and related material must either be submitted to our
online docket via http://www.regulations.gov on or before May 21, 2013
or reach the Docket Management Facility by that date. Comments sent to
the Office of Management and Budget (OMB) on collection of information
must reach OMB on or before May 21, 2013.
ADDRESSES: You may submit comments identified by Coast Guard docket
number USCG-2007-28915 to the Docket Management Facility at the U.S.
Department of Transportation. To avoid duplication, please use only one
of the following methods:
(1) Federal eRulemaking Portal: http://www.regulations.gov.
(2) Mail: Docket Management Facility (M-30), U.S. Department of
Transportation, West Building Ground Floor, Room W12-140, 1200 New
Jersey Avenue SE., Washington, DC 20590.
(3) Fax: 202-493-2251.
(4) Delivery: Room W12-140 on the Ground Floor of the West
Building, 1200 New Jersey Avenue SE., Washington, DC 20590, between 9
a.m. and 5 p.m., Monday through Friday, except Federal holidays. The
telephone number is 202-366-9329.
Collection of Information Comments: If you have comments on the
collection of information discussed in this NPRM, you must also send
comments to OMB's Office of Information and Regulatory Affairs (OIRA).
To ensure that your comments to OIRA are received on time, the
preferred methods are by email at [email protected] (include
the docket number and ``Attention: Desk Officer for Coast Guard, DHS''
in the subject line of the email) or fax at 202-395-6566. An alternate,
though slower, method is by U.S. mail to the Office of Information and
Regulatory Affairs, Office of Management and Budget, 725 17th Street
NW., Washington, DC 20503, ATTN: Desk Officer, U.S. Coast Guard.
FOR FURTHER INFORMATION CONTACT: If you have questions on this proposed
rule, call Lieutenant Commander Loan T. O'Brien, Coast Guard, telephone
202-372-1133. If you have questions on viewing or submitting material
to the docket, call Barbara Hairston, Program Manager, Docket
Operations, telephone 202-366-9826.
SUPPLEMENTARY INFORMATION:
Table of Acronyms
AHP Analytical Hierarchy Process
ANPRM Advanced Notice of Proposed Rulemaking
ASP Alternative Security Program
CAC Card Authentication Certificate
CCL Canceled Card List
CDC Certain Dangerous Cargoes
CFR Code of Federal Regulations
CGAA 2010 Coast Guard Authorization Act of 2010 (Pub. L. 111-281)
CHUID Card Holder Unique Identifier
CI/KR Critical Infrastructure/Key Resources
COTP Captain of the Port
DHS Department of Homeland Security
DPEA Draft Programmatic Environmental Assessment
FASC-N Federal Agency Smart Credential-Number
FONSI Finding of No Significant Impact
FSP Facility Security Plan
HSI Homeland Security Institute
ICE Test Initial Capability Evaluation Test
IPT Integrated Product Team
MARSEC Maritime Security
MERPAC Merchant Marine Personnel Advisory Committee
MISLE Marine Information for Safety and Law Enforcement
MODU Mobile Offshore Drilling Unit
MSRAM Maritime Security Risk Analysis Model
MTSA Maritime Transportation Security Act of 2002
NIST National Institute of Standards and Technology
NMSAC National Maritime Security Advisory Committee
NPRM Notice of Proposed Rulemaking
NTTAA National Technology Transfer and Advancement Act
NVIC Navigation and Vessel Inspection Circular
OCS Outer Continental Shelf
OIRA Office of Information and Regulatory Affairs
OMB Office of Management and Budget
OSV Offshore Supply Vessel
PAC-D Policy Advisory Council Decision
PACS Physical Access Control System
PIN Personal Identification Number
QTL Qualified Technology List
RUA Recurring Unescorted Access
SAFE Port Act Security and Accountability For Every Port Act of 2006
SBA Small Business Administration
SSI Sensitive Security Information
TSA Transportation Security Administration
TSAC Towing Safety Advisory Committee
TSI Transportation Security Incident
TWIC Transportation Worker Identification Credential
TWIC 1 Final Rule Transportation Worker Identification Credential
(TWIC) Implementation in the Maritime Sector; Hazardous Materials
Endorsement for a Commercial Driver's License, 72 FR 3492 (Jan. 25,
2007)
TWIC 1 NPRM Transportation Worker Identification Credential (TWIC)
Implementation in the Maritime Sector; Proposed Rules, 71 FR 29396
(May 22, 2006)
VSP Vessel Security Plan
Table of Contents
I. Public Participation and Request for Comments
A. Submitting Comments
B. Viewing Comments and Documents
C. Privacy Act
D. Public Meetings
II. Executive Summary
A. Purpose of the Regulatory Action
1. Need for the Regulatory Action
2. Legal Authority for the Regulatory Action
B. Summary of the Major Provisions of the Regulatory Action
C. Summary of Costs and Benefits
[[Page 17783]]
III. Background and Purpose
A. General Information About the Transportation Worker
Identification Credential
B. Statutory and Regulatory History
C. Risk-Based Approach to Categorizing Vessels and Facilities
D. ANPRM Proposals
1. Classification of Vessels and Facilities into Risk Groups
2. TWIC Reader Requirements for Risk Group A
3. TWIC Reader Requirements for Risk Group B
4. TWIC Requirements for Risk Group C
5. Recurring Unescorted Access
6. TWIC Reader Approval, Calibration, and Compliance
7. Security Plan Amendment
8. Recordkeeping
9. Additional Persons Required To Obtain TWICs
E. Public Comments Received in Response to the ANPRM and Public
Meeting
1. General Comments
2. Statutory Authority
3. Risk-Based Approach
a. General
b. MSRAM
c. Movement Between Risk Groups
d. MARSEC Levels
e. CCL and ``Privilege Granting''
f. PIN Usage
4. Utility of TWIC Readers in Reducing TSI Vulnerability
5. TWIC Reader Requirements on Vessels
6. TWIC Reader Requirements for Risk Group A
a. Risk Group A Classification
b. Risk Group A TWIC Reader Requirements
7. TWIC Reader Requirements for Risk Group B
a. Risk Group B Classification
b. Risk Group B TWIC Reader Requirements
8. TWIC Requirements for Risk Group C
a. Risk Group C Classification
b. Risk Group C TWIC Requirements
9. Physical Placement of TWIC Readers
10. Recurring Unescorted Access
11. TWIC Reader Durability, Safety, Approval, Calibration, and
Compliance
12. TWIC Pilot and HSI Report
13. Security Plan Amendment
14. Recordkeeping
15. Other Comments
F. TWIC Reader Pilot Program
1. Background
2. General Findings
3. Specific Challenges and Lessons Learned
G. HSI Report
H. Additional Data Sources
I. Advisory Committee Input
IV. Section-by-Section Description of Proposed Rule
A. Definitions
B. Federalism
C. Additional Persons Required to Obtain TWICs
D. TWIC Reader Requirements for Risk Group A
E. TWIC Reader Exemption for Vessels With 14 or Fewer TWIC-
holding Crewmembers
F. TWIC Inspection Requirements for Risk Groups B and C
G. TWIC Inspection Requirements in Special Circumstances
H. Compliance Deadlines
I. Recordkeeping
J. Risk Group Classifications
K. Movement Between Risk Groups
L. Physical Placement of TWIC Readers
M. Technical Amendments
N. Privacy
O. Public Comment
V. Regulatory Analyses
A. Regulatory Planning and Review
B. Small Entities
C. Assistance for Small Entities
D. Collection of Information
E. Federalism
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
I. Public Participation and Request for Comments
We encourage you to participate in this rulemaking by submitting
comments and related materials. All comments received will be posted,
without change, to http://www.regulations.gov and will include any
personal information you have provided.
A. Submitting Comments
If you submit a comment, please include the docket number for this
rulemaking (USCG-2007-28915), indicate the specific section of this
document to which each comment applies, and provide a reason for each
suggestion or recommendation. You may submit your comments and material
online, or by fax, mail, or hand delivery, but please use only one of
these means. We recommend that you include your name and a mailing
address, email address, or phone number in the body of your document so
that we can contact you if we have any questions regarding your
submission.
To submit your comment online, go to http://www.regulations.gov and
use ``USCG-2007-28915'' as your search term. Locate this NPRM in the
search results, click the corresponding ``Comment Now'' box, and follow
the instructions. If you submit your comments by mail or hand delivery,
submit them in an unbound format, no larger than 8[frac12] by 11
inches, suitable for copying and electronic filing. If you submit
comments by mail and would like to know that they reached the Facility,
please enclose a stamped, self-addressed postcard or envelope.
We will consider all comments and material received during the
comment period and may change this proposed rule based on your
comments.
B. Viewing Comments and Documents
To view comments, as well as documents mentioned in this preamble
as being available in the docket, go to http://www.regulations.gov, and
use ``USCG-2007-28915'' as your search term. The menu options on the
left side of the Web page enable you to filter the results for public
submissions and other types of documents. If you do not have access to
the Internet, you may view the docket online by visiting the Docket
Management Facility in Room W12-140 on the ground floor of the
Department of Transportation West Building, 1200 New Jersey Avenue SE.,
Washington, DC 20590, between 9 a.m. and 5 p.m., Monday through Friday,
except Federal holidays. We have an agreement with the Department of
Transportation to use the Docket Management Facility.
C. Privacy Act
Anyone can 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 a Privacy Act notice
regarding our public dockets in the January 17, 2008 issue of the
Federal Register (73 FR 3316).
D. Public Meetings
We intend to hold one or more public meetings regarding the
proposals in this NPRM. A notice with the specific date and location of
each meeting will be published in the Federal Register as soon as this
information is known.
II. Executive Summary
This section provides a concise description of the major proposals
and policy decisions in this NPRM. We also provide a summary of the
costs and benefits of this NPRM in this section.
A. Purpose of the Regulatory Action
1. Need for the Regulatory Action
This regulatory action is necessary to improve the security of the
nation's vessels and port facilities and to comply with statutory
requirements. As authorized by the Maritime Transportation Security Act
of 2002 \1\ (MTSA), the Transportation Security Administration (TSA)
established the TWIC program to address identity management
shortcomings and vulnerabilities identified in the nation's
transportation system and to comply
[[Page 17784]]
with the MTSA statutory requirements. On January 25, 2007, the
Department of Homeland Security (DHS), through the Coast Guard and TSA,
promulgated regulations that require mariners and other individuals
granted unescorted access to secure areas of MTSA-regulated vessels or
facilities to undergo a security threat assessment by TSA and obtain a
TWIC.\2\ This rulemaking, which would require owners and operators of
certain types of vessels and facilities to use electronic TWIC readers,
is necessary to advance the goals of the TWIC program. This rulemaking
applies only to MTSA-regulated vessels and facilities. As described
more fully below in this Executive Summary, we conducted a risk-based
analysis of MTSA-regulated vessels and facilities to categorize them
into one of three risk groups. Risk Group A is comprised of vessels and
facilities that present the highest risk of being involved in a
transportation security incident (TSI).\3\ Vessels and facilities in
Risk Group A would have new TWIC reader requirements under this rule.
Vessels and facilities in Risk Groups B and C present progressively
lower risks, and would continue to follow existing regulatory
requirements for visual TWIC inspection.
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\1\ Public Law 107-295, 116 Stat. 2064 (Nov. 2, 2002).
\2\ Transportation Worker Identification Credential (TWIC)
Implementation in the Maritime Sector; Hazardous Materials
Endorsement for a Commercial Driver's License, 72 FR 3492 (Jan. 25,
2007).
\3\ A transportation security incident is a security incident
resulting in a significant loss of life, environmental damage,
transportation system disruption, or economic disruption in a
particular area, as defined in 46 U.S.C. 70101 (49 CFR 1572.103).
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The TWIC program, including the proposed TWIC reader requirements
in this rule, is an important component of the Coast Guard's multi-
layered system of access control requirements and other measures
designed to enhance maritime security. Under this multi-layered system,
owners and operators of MTSA-regulated vessels or facilities are
required to submit for Coast Guard approval a comprehensive security
plan detailing the access control and other security policies and
procedures implemented on each vessel and facility. Security plans must
identify and mitigate vulnerabilities. They accomplish this task by
detailing the following items: (1) Security organization of the vessel
or facility; (2) personnel training; (3) drills and exercises; (4)
records and documentation; (5) response to changes in Maritime Security
(MARSEC) \4\ Level; (6) procedures for interfacing with other
facilities and/or vessels; (7) Declarations of Security; (8)
communications; (9) security systems and equipment maintenance; (10)
security measures for access control; (11) security measures for
restricted areas; (12) security measures for handling cargo; (13)
security measures regarding vessel stores and bunkers; (14) security
measures for monitoring; (15) security incident procedures; (16) audits
and security plan amendments; (17) Security Assessment Reports and
other security reports; and (18) TWIC procedures.\5\ Coast Guard
inspectors conduct routine and unannounced inspections and spot-checks
to ensure proper implementation of approved security plans. The multi-
layered security system also includes measures that consider broader
security issues at U.S. ports and waterways, the coastal zone, the open
ocean, and foreign ports.
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\4\ ``MARSEC Level'' means the level set to reflect the
prevailing threat environment to the marine elements of the national
transportation system, including ports, vessels, facilities, and
critical assets and infrastructure located on or adjacent to waters
subject to the jurisdiction of the U.S. (33 CFR 101.105).
\5\ See 33 CFR 104.405 and 33 CFR 105.405.
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The TWIC program's initial requirement on mariners and other
individuals to obtain a TWIC provides security benefits in the maritime
sector. Prior to this requirement, mariners and other individuals could
access secure areas of MTSA-regulated vessels and facilities after
presenting any number of identification cards, such as State-issued
driver's licenses, mariner credentials, passports, and union
identification cards. To detect invalid credentials, it was necessary
for security personnel to become familiar with the appearance and
security features of every type of acceptable credential. Moreover,
since some government-issued credentials are used for purposes other
than security, applicants for those credentials do not necessarily
submit biographic and biometric information and undergo a security
threat assessment or criminal background check. For example, a State-
issued driver's license is a generally accepted form of government-
issued identification in many places because it: (1) Is laminated or
otherwise secure against tampering; (2) bears the individual's name and
photograph; and (3) bears the name of the issuing authority.
Nonetheless, while issuance of a driver's license is conditioned upon
the applicant's successful completion of a course on driving
instruction, road test, written test, eye examination, and other
criteria specific to driving a motor vehicle, the applicant is not
necessarily fingerprinted and screened against law enforcement
databases for felony criminal activity or terrorist group affiliation.
These are inherent shortcomings of an access control system that would
permit access based on a patchwork of generic credentials issued to
individuals who have undergone no security screening as a precondition
to obtaining those credentials. In contrast, issuance of a TWIC is
specifically conditioned on these security-related criteria.
Since April 15, 2009, TWIC has been the single credential used
throughout the maritime sector. Accordingly, security personnel only
need to become familiar with the appearance and security features of
one credential. Moreover, unlike other government-issued credentials,
TWIC is specifically designed for maritime transportation security.
TWIC's purpose is to promote a vetted maritime workforce by
establishing security-related eligibility criteria, and by requiring
each TWIC-holder to undergo TSA's security threat assessment as part of
the process of applying for and obtaining a TWIC.
While the existing security benefits of the TWIC program are
substantial, electronic TWIC readers would provide greater security
benefits because the TWIC card is designed to contain several enhanced
security features that can only be utilized through the use of an
electronic TWIC reader. One of these features is the set of two
fingerprint templates from two different fingers embedded in each TWIC
card. The Coast Guard is proposing to require the use of electronic
TWIC readers, which would match the TWIC-holder's fingerprint to one of
the embedded fingerprint templates. An electronic TWIC reader would
provide a more reliable form of identity verification than the current
visual comparison of the TWIC-holder's face to the photograph on the
TWIC. Because a TWIC reader, when properly functioning, engages the
security features of the card and cross-references with TSA's Canceled
Card List (CCL), which the owner or operator would be required to
update at least weekly, it is also more reliable than visual inspection
for ensuring that a TWIC is not counterfeit or expired, or has not been
reported lost, stolen, damaged, or revoked. When TWIC readers or TWICs
are damaged or malfunctioning, the proposed rule would permit owners
and operators to revert to visual inspection of the TWICs for 7 days if
certain conditions are met.
Despite the enhanced reliability that TWIC readers would offer, not
all vessels and facilities face security risks that justify the costs
and other burdens that would result from a universal TWIC
[[Page 17785]]
reader requirement for all vessels and facilities. Therefore, in this
rulemaking, we are considering a phased approach to implementing TWIC
reader requirements by proposing such requirements first for vessels
and facilities where the risk of harm is expected to be the greatest.
We will continue to analyze risk data on MTSA-regulated vessels and
facilities and consider whether additional or modified TWIC reader
requirements are warranted in future rulemakings.
This Notice of Proposed Rulemaking (NPRM) proposes TWIC reader
requirements for MTSA-regulated vessels and facilities that we have
determined to present a heightened risk of being involved in a TSI, as
described more fully below in Section III.C., ``Risk-Based Approach to
Categorizing Vessels and Facilities.'' The Coast Guard assembled a
panel of maritime security subject matter experts from the Coast Guard
and TSA to conduct a risk-based analysis of MTSA-regulated vessels and
facilities. The panel assessed the distinct types of vessels and
facilities using three factors: (1) Maximum consequences to that vessel
or facility resulting from a terrorist attack; (2) criticality to the
nation's health, economy, and national security; and (3) utility of the
TWIC in reducing risk.
For the first factor (maximum consequence resulting from a
terrorist attack), we used the Coast Guard's Maritime Security Risk
Analysis Model (MSRAM). MSRAM is a terrorism risk-analysis tool the
Coast Guard uses to perform risk analysis on Critical Infrastructure
and Key Resources (CI/KR) in the maritime domain, given a range of
terrorist attack scenarios. The purpose of MSRAM is to capture and rank
the security risks facing different types of potential terrorist
targets spanning all CI/KR sectors in the nation's ports and on its
waterways.
An initial step in the MSRAM process is to calculate the maximum
potential consequence resulting from the total loss of a target,
factoring in injury and loss of life, economic and environmental
impact, symbolic effect, and national security impact. MSRAM then
assesses risk for a range of scenarios (each involving a combination of
potential terrorist target and method of attack) in terms of threat,
vulnerability, and consequence. MSRAM considers the response capability
of the owner or operator, local first responders, and Federal agencies
to mitigate the consequences of an attack. MSRAM also considers input
from Area Maritime Security Committees (AMSCs).\6\
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\6\ AMSCs are committees established pursuant to 46 U.S.C.
70112(a)(2)(A). AMSCs are composed of at least seven members having
an interest in the maritime security of a specific geographic area.
AMSC members may be selected from government, public safety, law
enforcement, maritime industry, and other port stakeholders. AMSCs
assist in the development, review, and update of formal plans that
detail maritime security measures and procedures for ports in a
specific geographic area. See 33 CFR part 103.
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For the second factor (criticality to the nation's health, economy,
and national security), we considered the impact of the total loss of a
vessel or facility beyond the immediate local consequences, taking into
account the regional or national impacts on human health, the economy,
and national security.
For the third factor (TWIC utility), we considered the utility of
the TWIC program in reducing a vessel's or facility's vulnerability to
a terrorist attack.
We combined the above three factors and developed an overall risk
ranking of vessels and facilities by type. The panel then assigned
numerical valued weights to the three factors. In determining the final
weights, the panel chose the approach that best reflected its
understanding of the maritime environment and TWIC program
implementation, the importance of consequences in representing target
attractiveness to terrorists, and the panel's expert perspective of
risk. The actual numerical valued weights finalized by the panel are
Sensitive Security Information (SSI). Finally, the panel calculated the
priority scores for each vessel and facility type. At the end of this
process, types of vessels and facilities with similar scores were
combined into one of three risk groups.
Vessels and facilities that present a heightened risk for being
involved in a TSI, Risk Group A, would have new TWIC reader
requirements under this rule. For now, vessels and facilities that do
not present this heightened risk would either continue to visually
inspect TWICs or voluntarily deploy TWIC readers. We believe this
approach would implement the TWIC reader program in a targeted manner
that enhances the security of MTSA-regulated vessels and facilities
without imposing undue burdens.
2. Legal Authority for the Regulatory Action
Under MTSA, the Secretary of Homeland Security (Secretary) is
required to issue regulations designed to prevent individuals from
entering secure areas of MTSA-regulated vessels or facilities without
holding a TWIC or being accompanied by another individual holding a
TWIC.\7\ As a first step toward implementing that mandate, DHS, through
the Coast Guard and TSA, promulgated a rule on January 27, 2007 that
requires all maritime workers and other individuals to obtain a TWIC
before they are granted unescorted access to secure areas in the
maritime sector. We also required owners and operators of MTSA-
regulated vessels or facilities to visually inspect the TWICs of
individuals seeking access to secure areas at those locations.
Additionally, we included alternatives to accommodate instances when an
individual cannot present a TWIC because it has been lost, damaged, or
stolen. In the January 27, 2007 rule, we did not implement TWIC reader
requirements. Instead, we decided that TWIC reader requirements would
follow in a separate rule after pilot testing TWIC readers in the
maritime sector.
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\7\ 46 U.S.C. 70105(a)-(f).
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The Security and Accountability For Every (SAFE) Port Act of 2006
\8\ required the Secretary to conduct a pilot program to test the
business processes, technology, and operational impacts of TWIC readers
in the maritime environment, and to issue regulations that require the
deployment of TWIC readers that are consistent with the findings of the
pilot program.\9\
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\8\ Public Law 109-347, 120 Stat. 1884 (Oct. 13, 2006).
\9\ 46 U.S.C. 70105(k)(3).
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B. Summary of the Major Provisions of the TWIC Reader Advanced Notice
of Proposed Rulemaking and This NPRM
On March 27, 2009, the Coast Guard published an advanced notice of
proposed rulemaking on TWIC reader requirements (ANPRM).\10\ The ANPRM
proposed a risk-based approach to TWIC reader requirements. First, the
ANPRM proposed to classify MTSA-regulated vessels and facilities into
one of three risk groups, based on specific factors related to TSI
consequence. Second, the ANPRM proposed TWIC reader requirements for
vessels and facilities in the two highest risk groups (Risk Groups A
and B). For the lowest risk group (Risk Group C), the ANPRM proposed
visual TWIC inspection requirements instead of TWIC reader requirements
because we determined that routine electronic biometric matching using
TWIC readers would not be practical at lower risk vessels and
facilities. This is consistent with the understanding that TWIC readers
constitute one component
[[Page 17786]]
of a multi-layered maritime security system, but are not necessary or
appropriate for every vessel or facility.
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\10\ Transportation Worker Identification Credential (TWIC)--
Reader Requirements, 74 FR 13360 (March 27, 2009).
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Based on the public comments received in response to the ANPRM, the
findings of the DHS pilot program, and further analysis of the relevant
issues, this NPRM reiterates many of the ANPRM's proposals, including
retaining the ANPRM's risk-based framework for classifying vessels and
facilities into the same three risk groups. As in the ANPRM, vessels
and facilities are generally placed in higher risk groups based on the
hazardous nature of the cargo handled or carried, or an increase in the
number of passengers present. Our analysis demonstrates that it is
necessary to maximize the use of the TWIC's security features where the
risk is highest, as described more fully below in Section III.C.,
``Risk-Based Approach to Categorizing Vessels and Facilities.'' We also
believe it is necessary to carefully weigh the costs and benefits of
TWIC reader requirements on the regulated population.
The main change in approach from the ANPRM to this NPRM is
regarding the TWIC reader requirements for the different risk groups.
Specifically, this NPRM proposes TWIC reader requirements for Risk
Group A only. For Risk Groups B and C, this NPRM proposes to maintain
the existing visual TWIC inspection requirements instead of TWIC reader
requirements. This approach is designed to target the use of TWIC
readers at the highest risk entities while minimizing the overall
burden of the rule. Proposing TWIC reader requirements for Risk Group A
only in this NPRM is indicative of our desire to minimize highest risks
first, but should not be read to foreclose revised TWIC reader
requirements in the future. We will continue to gather and analyze data
to determine how the use of TWIC readers might be appropriate for each
risk group. Any future changes will be made through rulemaking and the
public will have an opportunity to comment.
This NPRM also proposes a requirement for owners and operators
using TWIC readers to maintain records on each individual granted
unescorted access to a secure area. Owners and operators would be
required to maintain such records for a period of 2 years.
Additionally, this NPRM proposes requirements to amend security plans
to incorporate TWIC reader requirements for vessels and facilities in
the highest risk group. These provisions are designed to ensure that
owners and operators of vessels or facilities in Risk Group A comply
with TWIC reader requirements.
Table ES-1--Summary of Requirements/Provisions Proposed in This NPRM
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Vessels (33 CFR part Facilities (33 CFR part OCS Facilities (33 CFR
Proposed requirement or provision 104) 105) part 106)
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Risk Group A classification.......... Vessels that carry CDC Facilities that handle Not applicable.
in bulk. CDC in bulk.
Vessels certificated to Facilities that receive
carry more than 1,000 vessels certificated
passengers. to carry more than
1,000 passengers.
Vessels towing one of Barge fleeting
the above. facilities that
receive barges
carrying CDC in bulk.
Risk Group B classification.......... Vessels that carry Facilities that receive All OCS facilities.
hazardous materials Risk Group B vessels.
other than CDC in bulk.
Vessels that carry
flammable or
combustible liquid
cargoes.
Vessels certificated to
carry 500-1,000
passengers.
Vessels towing one of
the above.
Risk Group C classification.......... Vessels that carry non- Facilities that receive Not applicable.
hazardous cargoes. Risk Group C vessels.
Vessels certificated to
carry less than 500
passengers.
Vessels towing one of
the above.
MODUs and OSVs.
Movement between risk groups......... Vessels are permitted Facilities are Not applicable.
to move between risk permitted to move
groups based on the between risk groups
materials carried at a based on the materials
given time. Described handled at a given
in VSP. time. Described in FSP.
Visual TWIC inspection requirement... Risk Groups B and C Risk Groups B and C Risk Groups B performs
perform identity perform identity identity verification,
verification, card verification, card card authentication,
authentication, and authentication, and and card validation by
card validation by card validation by visual TWIC inspection
visual TWIC inspection visual TWIC inspection for each individual
for each individual for each individual prior to being granted
prior to being granted prior to being granted unescorted access to
unescorted access to unescorted access to secure areas.
secure areas. secure areas.
TWIC reader requirement.............. Risk Group A must use Risk Group A must use No requirement.
TWIC reader with TWIC reader with
biometric check for biometric check for
identity verification, identity verification,
card authentication, card authentication,
and card validation on and card validation on
each individual prior each individual prior
to being granted to being granted
unescorted access to unescorted access to
secure areas. secure areas.
TWIC reader exemption based on Vessels with 14 or No exemption........... Not applicable.
minimum crew size. fewer TWIC-holding
crew are exempt.
Physical placement of TWIC readers... Vessel access points Access points to each Not applicable.
only. secure area.
[[Page 17787]]
Unreadable fingerprints.............. Exception handling Exception handling Not applicable.
process may include process may include
PIN or alternate PIN or alternate
biometric. biometric.
TWIC reader malfunction.............. Owner or operator Owner or operator Not applicable.
performs visual TWIC performs visual TWIC
inspection. inspection.
Individuals that have Individuals that have
been granted been granted
unescorted access with unescorted access with
a valid TWIC in the a valid TWIC in the
past may still be past may still be
granted such access granted such access
for up to 7 days (with for up to 7 days (with
the possibility of an the possibility of an
additional extension additional extension
at the COTP's at the COTP's
discretion). discretion).
Recordkeeping........................ Records on each Records on each Not applicable.
individual whose TWIC individual whose TWIC
was scanned using a was scanned using a
TWIC reader must be TWIC reader must be
kept for 2 years. kept for 2 years.
Lost/stolen TWIC..................... Individuals following Individuals following Individuals following
prescribed procedures prescribed procedures prescribed procedures
may be granted may be granted may be granted
unescorted access for unescorted access for unescorted access for
no longer than 7 no longer than 7 no longer than 7
consecutive days. consecutive days. consecutive days.
(Additional 30-day (Additional 30-day (Additional 30-day
extension may be extension may be extension may be
granted per Coast granted per Coast granted per Coast
Guard guidance.). Guard guidance.). Guard guidance.)
Compliance deadline.................. 2 years after final 2 years after final Not applicable.
rule publication. rule publication. Existing regulations
apply.
----------------------------------------------------------------------------------------------------------------
C. Summary of Costs and Benefits
Under MTSA, the Coast Guard regulates approximately 13,825 vessels,
3,270 facilities, and 56 Outer Continental Shelf (OCS) facilities. Of
those MTSA-regulated facilities that could have potentially been
regulated, 38 vessels and 532 facilities are affected by this proposed
rule. We estimate the annualized cost of this proposed rule on the
affected population of 38 vessels and 532 facilities to be about $26.5
million, while the 10-year cost is $186.1 million, discounted at 7
percent. The main cost drivers of this proposal are the acquisition,
installation, and integration of TWIC readers into access control
systems. Annual costs would be driven by costs associated with Canceled
Card List updates, recordkeeping, training, system maintenance, and
opportunity costs associated with failed TWIC reader transactions. We
account for delays of up to two minutes for failed TWIC reader
transactions. We estimate that 5% of TWIC-holders who access Risk Group
A facilities and vessels will need to replace their TWICs annually,
also contributing to the annual costs of this rule.
The benefits of this proposed rule include the enhancement of the
security of vessels, ports, and other facilities by ensuring that only
individuals who hold TWICs are granted unescorted access to secure
areas at those locations. TWIC readers will not help identify valid
cards that were obtained via fraudulent means, e.g., through unreported
theft or the use of fraudulent IDs. Further, if the Coast Guard becomes
aware of an imminent threat to a facility or vessel, the Coast Guard
will notify the relevant Captain of the Port and other Federal, state,
and local law enforcement officials and implement additional security
measures as appropriate as a part of DHS's layered approach to
security. This proposed rule would also implement the MTSA
transportation security card requirement, as well as the SAFE Port Act
of 2006 electronic TWIC reader requirements. The main benefit of this
regulation, decreased terrorism risk, cannot be quantified given
current data limitations.
Table ES-2--Estimated Costs and Functional Benefits of TWIC Reader
Requirements \11\
------------------------------------------------------------------------
Category NPRM
------------------------------------------------------------------------
Applicability..................... High risk MTSA-regulated facilities
and high risk MTSA-regulated
vessels with greater than 14 crew.
Affected Population............... 38 vessels.
532 facilities.
Costs ($ millions, 7% discount $26.5 (annualized).
rate). $186.1 (10-year).
Costs (Qualitative)............... Time to retrieve or replace lost
PINs for use with TWIC cards.
Benefits (Qualitative)............ Standardization of access control
and credential verification
throughout industry.
Enhanced access control and security
at U.S. maritime facilities and
onboard U.S. flagged vessels.
Reduction of human error when
checking identification and manning
access points.
------------------------------------------------------------------------
[[Page 17788]]
We used a risk-based approach to apply these regulatory
requirements on less than 5 percent of the MTSA-regulated population,
which represents approximately 80 percent of the potential consequences
of a TSI. A discussion of our risk-based approach is provided below in
Section III.C., ``Risk-Based Approach to Categorizing Vessels and
Facilities.'' For a more detailed discussion of the methodology
underpinning our risk-based approach, please refer to the Coast Guard
report, ``Analysis of Transportation Worker Identification Credential
(TWIC) Electronic Reader Requirements in the Maritime Sector,'' which
is available for viewing in the public docket for this rulemaking. The
proposals in this NPRM target the highest risk entities while
minimizing the overall burden of the rule. Furthermore, we propose
several types of relief in an effort to minimize the possible burden on
the regulated population.
---------------------------------------------------------------------------
\11\ For a more detailed discussion of costs and benefits, see
the full Preliminary Regulatory Analysis and Initial Regulatory
Flexibility Analysis available on the docket for this rulemaking.
Appendix G of that document outlines the costs by provision and also
discusses the complementary nature of the provisions and the
subsequent difficulty in distinguishing independent benefits from
individual provisions.
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III. Background and Purpose
This section provides a detailed discussion of the considerations
and rationale for the policy decisions that informed this NPRM. The
section that follows (Section IV.) sets forth the NPRM's proposals.
Section III.A. provides a general description of the TWIC and its
security features, and also explains how the TWIC is used in the
maritime sector as an access control measure.
Section III.B. discusses the statutory basis for this rulemaking,
and summarizes the regulatory history of the TWIC program. The Coast
Guard's most recent TWIC-related regulatory action is the ANPRM on TWIC
reader requirements.
Section III.C. describes the ANPRM's risk-based approach for
evaluating and categorizing types of vessels and facilities into risk
groups. In doing so, this section summarizes the factors considered in
developing the ANPRM's categorization system.
Section III.D. summarizes the ANPRM's proposals for TWIC reader
requirements and other TWIC-related requirements for each risk group.
Section III.E. provides a detailed discussion of the public
comments received during the ANPRM's comment period and public meeting.
Section III.E. also provides our responses to those comments.
Sections III.F., III.G., III.H., and III.I. discuss DHS's TWIC
Reader Pilot Program on TWIC reader functionality, the Homeland
Security Institute's report on the ANPRM's risk group classification
system, additional data sources, and Advisory Committee input in the
rulemaking process, respectively.
A. General Information About the Transportation Worker Identification
Credential
This section provides a general description of the types of vessels
and facilities currently covered under MTSA, the TWIC and its security
features, and also explains how the TWIC is currently used in the
maritime sector for access control.
Under MTSA, the Coast Guard is authorized to regulate vessels and
facilities. For purposes of MTSA, the term ``facility'' means ``any
structure or facility of any kind located in, on, under, or adjacent to
any waters subject to the jurisdiction of the United States.'' \12\ For
purposes of MTSA, the term ``vessel'' includes ``every description of
watercraft or other artificial contrivance used, or capable of being
used, as a means of transportation on water.'' \13\
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\12\ 46 U.S.C. 70101(a)(2).
\13\ 46 U.S.C. 115; 1 U.S.C. 3.
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Coast Guard regulations implementing MTSA with respect to vessels
\14\ apply to: Mobile Offshore Drilling Units (MODUs), cargo vessels,
or passenger vessels subject to International Convention for Safety of
Life at Sea, 1974 (SOLAS), chapter XI-1 or Chapter XI-2; foreign cargo
vessels greater than 100 gross register tons; generally, self-propelled
U.S. cargo vessels greater than 100 gross tons; offshore supply
vessels; vessels subject to the Coast Guard's regulations regarding
passenger vessels; passenger vessels certificated to carry more than
150 passengers; passenger vessels carrying more than 12 passengers
engaged on an international voyage; barges carrying, in bulk, cargoes
regulated under the Coast Guard's regulations regarding tank vessels or
Certain Dangerous Cargoes (CDCs); \15\ barges carrying CDCs or cargo
and miscellaneous vessels engaged on an international voyage;
tankships; and generally, towing vessels greater than eight meters in
register length engaged in towing barges.
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\14\ See 33 CFR 104.105.
\15\ The term ``Certain Dangerous Cargoes'' is defined in 33 CFR
101.105 by reference to 33 CFR 160.204, which lists all of the
covered substances.
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Coast Guard regulations implementing MTSA with respect to
facilities \16\ apply to: Waterfront facilities handling dangerous
cargoes (as generally defined in 49 CFR parts 170 through 179);
waterfront facilities handling liquefied natural gas and liquefied
hazardous gas; facilities transferring oil or hazardous materials in
bulk; facilities that receive vessels certificated to carry more than
150 passengers; facilities that receive vessels subject to SOLAS,
Chapter XI; facilities that receive foreign cargo vessels greater than
100 gross register tons; generally, facilities that receive U.S. cargo
and miscellaneous vessels greater than 100 gross register tons; barge
fleeting facilities that receive barges carrying, in bulk, cargoes
regulated under the Coast Guard's regulations regarding tank vessels or
CDCs; and fixed or floating facilities operating on the OCS for the
purposes of engaging in the exploration, development, or production of
oil, natural gas, or mineral resources (OCS facilities).
---------------------------------------------------------------------------
\16\ See 33 CFR 105.105 and 106.105.
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This rulemaking applies to the above-described vessels and
facilities regulated by the Coast Guard pursuant to the authority
granted in MTSA. The TWIC program is one component of the Coast Guard's
multi-layered system of access control requirements and other measures
designed to enhance maritime security. Under this multi-layered system,
owners and operators of MTSA-regulated vessels or facilities are
required to submit for Coast Guard approval a comprehensive security
plan detailing the access control and other security policies and
procedures implemented on each vessel and facility. Security plans must
identify and mitigate vulnerabilities. They accomplish this task by
detailing the following items: (1) Security organization of the vessel
or facility; (2) personnel training; (3) drills and exercises; (4)
records and documentation; (5) response to changes in Maritime Security
(MARSEC) Level; (6) procedures for interfacing with other facilities
and/or vessels; (7) Declarations of Security; (8) communications; (9)
security systems and equipment maintenance; (10) security measures for
access control; (11) security measures for restricted areas; (12)
security measures for handling cargo; (13) security measures regarding
vessel stores and bunkers; (14) security measures for monitoring; (15)
security incident procedures; (16) audits and security plan amendments;
(17) Security Assessment Reports and other security
[[Page 17789]]
reports; and (18) TWIC procedures.\17\ Coast Guard inspectors conduct
routine and unannounced inspections and spot-checks to ensure proper
implementation of approved security plans. The multi-layered security
system also includes measures that consider broader security issues at
U.S. ports and waterways, the coastal zone, the open ocean, and foreign
ports.
---------------------------------------------------------------------------
\17\ See 33 CFR 104.405 and 33 CFR 105.405.
---------------------------------------------------------------------------
The TWIC is a tamper-resistant biometric credential TSA issues to
eligible maritime workers who require unescorted access to secure areas
of MTSA-regulated vessels and facilities. To obtain a TWIC, applicants
must provide biographic and biometric information and complete a TSA
security threat assessment. Applicants are disqualified from obtaining
a TWIC if their assessment reveals that they: have been convicted, or
found not guilty by reason of insanity, of certain felonies; \18\ are
under want, warrant, or indictment for certain felonies; \19\ have been
released from incarceration within the preceding 5-year period for
committing certain felonies; \20\ may be denied admission to, or
removed from, the United States under the Immigration and Nationality
Act; \21\ or otherwise pose a terrorism security risk to the United
States.\22\
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\18\ 46 U.S.C. 70105(c)(1)(A)-(B).
\19\ 46 U.S.C. 70105(c)(1)(C).
\20\ 46 U.S.C. 70105(c)(1)(D)(i).
\21\ 46 U.S.C. 70105(c)(1)(D)(iii); 8 U.S.C. 1101 et seq.
\22\ 46 U.S.C. 70105(c)(1)(D)(iv).
---------------------------------------------------------------------------
The face of the TWIC shows the holder's photograph, name, and TWIC
expiration date, and the back shows a unique credential number (TWIC
Serial Number). Because TWIC is the single credential used throughout
the maritime sector, it provides considerable security benefits,
including ensuring that individuals permitted to enter secure areas
within the maritime transportation system have successfully undergone
TSA's security threat assessment, involving a criminal history records
check and an intelligence-related check. Before TWIC was in use,
mariners and other individuals could access secure areas of MTSA-
regulated vessels and facilities after presenting a State-issued
driver's license or any number of other government-issued
identification cards. To detect invalid credentials, it was necessary
for security personnel to become familiar with the appearance and
security features of every type of acceptable credential. Moreover,
since some government-issued credentials are used for purposes other
than security, applicants for those credentials do not necessarily
submit biographic and biometric information and undergo a security
threat assessment or criminal background check. For example, a State-
issued driver's license is a generally accepted form of government-
issued identification in many places because it: (1) Is laminated or
otherwise secure against tampering; (2) bears the individual's name and
photograph; and (3) bears the name of the issuing authority.
Nonetheless, while issuance of a driver's license is conditioned upon
the applicant's successful completion of a course on driving
instruction, road test, written test, eye examination, and other
criteria specific to driving a motor vehicle, the applicant is not
necessarily fingerprinted and screened against law enforcement
databases for felony criminal activity or terrorist group affiliation.
These are inherent shortcomings of an access control system that would
permit access based on a patchwork of generic credentials issued to
individuals who have undergone no security screening as a precondition
to obtaining those credentials. In contrast, issuance of a TWIC is
specifically conditioned on these security-related criteria.
Since April 15, 2009, TWIC has been the single credential used
throughout the maritime sector. Accordingly, security personnel only
need to become familiar with the appearance and security features of
one credential. Moreover, unlike other government-issued credentials,
TWIC is specifically designed for transportation security. Its purpose
is to ensure a vetted maritime workforce by establishing security-
related eligibility criteria, and by requiring each TWIC-holder to
undergo TSA's security threat assessment as part of the process of
applying for and obtaining a TWIC.
In addition to its visible security features, the TWIC stores two
electronically readable reference biometric templates (i.e.,
fingerprint templates), a personal identification number (PIN) selected
by the TWIC-holder, a digital facial image, authentication
certificates, and a Federal Agency Smart Credential-Number (FASC-N).
These features enable the TWIC to be used in different ways for: (1)
Identity verification; (2) card authentication; and (3) card
validation.
Identity verification ensures that the individual presenting the
TWIC is the same person to whom the TWIC was issued. Identity can be
verified by visually comparing the photo on the TWIC to the TWIC-
holder. Using a TWIC reader, identity can be verified by matching one
of the fingerprint templates stored in the TWIC to the TWIC-holder's
live sample biometric, or by requiring the TWIC-holder to place the
TWIC into a TWIC reader and enter a 6-, 7-, or 8-digit PIN selected by
the TWIC-holder at the time of card activation.
Card authentication ensures that the TWIC is not counterfeit.
Security personnel can authenticate a TWIC by visually inspecting the
security features on the card. A TWIC reader authenticates the card by
performing a challenge/response protocol using the Card Authentication
Certificate (CAC) and the associated card authentication private key
stored in the TWIC.\23\
---------------------------------------------------------------------------
\23\ The TWIC reader will read the CAC from the TWIC and send a
command to the TWIC requesting the card authentication private key
be used to sign a random block of data (created and known to the
TWIC reader). The TWIC reader will use the public key embedded in
the CAC to verify that the signature of the random data block is
valid. If the signature is valid, the TWIC reader will trust the
TWIC submitted and will then pull the FASC--N and other information
from the card for further processing. The CAC contains the FASC--N
and a certificate of expiration date harmonized to the TWIC
expiration date. This minimizes the need for the TWIC reader to pull
more information from the TWIC (unless required for additional
checking).
---------------------------------------------------------------------------
Card validation using a TWIC reader ensures that the TWIC has not
expired or been revoked by TSA, or reported as lost, stolen, or
damaged. Security personnel can validate whether a TWIC has expired by
visually checking the TWIC's expiration date. A TSA-canceled TWIC is
placed on TSA's official Canceled Card List (CCL), which is updated
daily.\24\ Using a TWIC reader, card validity is confirmed by finding
no match on the CCL and electronically checking the expiration date on
the TWIC. Checks against the CCL may be performed electronically by
downloading the list onto a TWIC reader or integrated Physical Access
Control System (PACS).
---------------------------------------------------------------------------
\24\ TSA's Canceled Card List is available online at: https://twicprogram.tsa.dhs.gov/TWICWebApp.
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B. Statutory and Regulatory History
This section discusses the statutory basis for this rulemaking, and
summarizes the TWIC-related regulatory actions that precede this NPRM.
In the aftermath of the September 11, 2001 attacks, President
George W. Bush signed Public Law 107-295, MTSA, 2002, which required
the Secretary to publish rules that institute measures for the
protection of U.S. maritime security as soon as practicable. On July 1,
2003, the Coast Guard published a series of six rules to promulgate
maritime security requirements mandated by MTSA. These rules included
the following ones: Implementation of National Maritime Security
Initiatives (68 FR
[[Page 17790]]
39240); Area Maritime Security (68 FR 39284); Vessel Security (68 FR
39292); Facility Security (68 FR 39315); Outer Continental Shelf
Facility Security (68 FR 39338); and Automatic Identification System
(68 FR 39353). Most of these rules have been codified in 33 CFR
subchapter H.
MTSA is the principal statutory authority for the TWIC program, and
it requires the Secretary to issue regulations designed to prevent an
individual from entering secure areas of MTSA-regulated vessels or
facilities unless the individual holds a TWIC or is accompanied by
another individual who holds a TWIC.\25\
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\25\ 46 U.S.C. 70105(a)-(f).
---------------------------------------------------------------------------
On May 22, 2006, DHS, through the Coast Guard and TSA, published a
notice of proposed rulemaking \26\ (TWIC 1 NPRM) to implement the TWIC
program in the maritime sector. On January 27, 2007, DHS, through the
Coast Guard and TSA, issued a final rule \27\ (TWIC 1 Final Rule) that
required all credentialed merchant mariners and individuals granted
unescorted access to secure areas of MTSA-regulated vessels or
facilities to obtain a TWIC. Based on comments received in response to
the TWIC 1 NPRM, and upon further analysis of the information available
at the time, the Coast Guard concluded in the TWIC 1 Final Rule that it
was premature to require the use of TWIC readers on vessels and at
facilities.\28\ The TWIC 1 Final Rule, however, stated that TWIC reader
requirements would be addressed in a future rulemaking.\29\ To date,
TSA has issued approximately 2 million TWICs.\30\ TWIC is now the
single credential used throughout the maritime sector. For purposes of
access control to MTSA-regulated vessels and facilities, security
personnel only need to become familiar with the appearance and security
features of one credential when determining whether to grant access to
secure areas. Moreover, since the TWIC program is specifically designed
for transportation security, it effectively ensures a vetted maritime
workforce by establishing security-related eligibility criteria and by
requiring each TWIC-holder to undergo TSA's security threat assessment
as a precondition to obtaining a TWIC.
---------------------------------------------------------------------------
\26\ Transportation Worker Identification Credential (TWIC)
Implementation in the Maritime Sector; Hazardous Materials
Endorsement for a Commercial Driver's License, 71 FR 29396 (May 22,
2006).
\27\ Transportation Worker Identification Credential (TWIC)
Implementation in the Maritime Sector; Hazardous Materials
Endorsement for a Commercial Driver's License, 72 FR 3492 (Jan. 25,
2007).
\28\ See 72 FR 3512.
\29\ See 72 FR 3512.
\30\ For statistics and other general information about the TWIC
program, visit the TSA Web site at http://www.tsa.gov/twic.
---------------------------------------------------------------------------
Section 104 of the SAFE Port Act of 2006 focused on how to further
incorporate TWIC and TWIC readers into the MTSA security regime.
Specifically, the SAFE Port Act supplemented various MTSA credentialing
requirements by, among other things, requiring the Secretary to: (1)
Conduct a TWIC reader testing pilot program (TWIC Pilot) to evaluate
the business processes, technology, and operational impacts of a TWIC
reader requirement; \31\ and (2) promulgate final regulations requiring
the use of TWIC readers in a manner consistent with the findings of the
TWIC Pilot.\32\
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\31\ 46 U.S.C. 70105(k)(1).
\32\ 46 U.S.C. 70105(k)(3).
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While DHS collected data for the TWIC Pilot, the Coast Guard
published the ANPRM on March 27, 2009, discussing the Coast Guard's
preliminary thoughts on potential TWIC reader requirements, and opening
a public dialog on how to best implement those requirements. The ANPRM
proposed a framework that would separate individual MTSA-regulated
vessels, MTSA-regulated facilities, and MTSA-regulated OCS facilities
into one of three risk groups. Vessels and facilities are generally
placed in higher risk groups based on the hazardous nature of the cargo
handled or carried, or an increase in the number of passengers present.
This framework is described more fully below in Section III.C., ``Risk-
Based Approach to Categorizing Vessels and Facilities.'' The ANPRM
proposed TWIC reader requirements for vessels and facilities in Risk
Groups A and B, the two highest risk groups. For Risk Group C, the
ANPRM proposed visual TWIC inspection requirements instead of TWIC
reader requirements because we determined that the frequent electronic
matching of a biometric would not be practical at lower risk vessels
and facilities. This is consistent with the understanding that TWIC
readers constitute one component of a multi-layered maritime security
system, but are not necessary or appropriate for every vessel or
facility.
Based on the public comments received in response to the ANPRM, the
TWIC Pilot findings, and further analysis of the relevant issues, this
NPRM reiterates many of the ANPRM's proposals, including retaining the
ANPRM's risk-based framework for classifying vessels and facilities
into the same three risk groups. Our analysis demonstrates that it is
necessary to maximize the use of the TWIC's security features where the
risk is highest, as described more fully below in Section III.C.,
``Risk-Based Approach to Categorizing Vessels and Facilities.'' We also
believe it is necessary to carefully weigh the costs and benefits of
TWIC reader requirements on the regulated population.
The primary change in approach from the ANPRM to this NPRM is
regarding the TWIC reader requirements for the different risk groups.
Specifically, this NPRM proposes TWIC reader requirements for Risk
Group A only. For Risk Groups B and C, this NPRM proposes to maintain
the existing visual TWIC inspection requirements instead of TWIC reader
requirements. This approach is designed to target the use of TWIC
readers at the highest risk entities while minimizing the overall
burden of the rule. Proposing TWIC reader requirements for Risk Group A
only in this NPRM is indicative of our desire to minimize highest risks
first, but should not be read to foreclose revised TWIC reader
requirements in the future. We will continue to gather and analyze data
to determine how the use of TWIC readers might be appropriate for each
risk group. Any future changes will be made through rulemaking and the
public will have an opportunity to comment.
The Coast Guard Authorization Act of 2010 (Pub. L. 111-281) (CGAA
2010) contains two provisions we refer to into this rulemaking. First,
Section 809 of the CGAA 2010 authorizes the Secretary to exempt any
credentialed mariner who is not granted unescorted access to secure
areas of a vessel from the requirement to possess a TWIC. Second,
Section 814 of the CGAA 2010 allows the Secretary to permit the use of
alternate biometrics, such as a retina scan, to verify the
identification of individuals using TWIC when the individual's
fingerprints are not able to be taken or read.
C. Risk-Based Approach to Categorizing Vessels and Facilities
This section describes the ANPRM's risk-based approach for
evaluating and categorizing types of vessels and facilities into risk
groups.
The Coast Guard assembled a panel of maritime security subject
matter experts from the Coast Guard and TSA to conduct a risk-based
analysis of MTSA-regulated vessels and facilities. The panel determined
that the Analytical Hierarchy Process (AHP) would provide an effective
basis for applying the panel's judgment to weigh and apply several key
factors to the assessment of types of vessels and facilities. The AHP
[[Page 17791]]
is the core methodology in the Expert Choice \33\ collaborative
decision support tool, which was used in the Coast Guard's risk-based
analysis. The AHP was originally developed in the 1970s by Dr. Thomas
Saaty, then a professor at the Wharton School, University of
Pennsylvania. The methodology has since gained wide acceptance and is
used by Fortune 500 companies, Federal agencies, and MBA programs as a
structured technique for achieving solutions to complex problems.
Federal agencies that have used the AHP/Expert Choice include the
National Institute of Standards and Technology, Department of the Army,
Department of the Air Force, Bureau of Land Management, Bureau of
Engraving and Printing, Department of Agriculture, Department of
Energy, Department of Housing and Urban Development, Department of
State, Defense Information Systems Agency, Department of Veterans
Affairs, and the Federal Aviation Administration.
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\33\ Information about Expert Choice is available at
www.expertchoice.com.
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The AHP provides a comprehensive and rational framework for
structuring a problem, representing and quantifying its elements,
relating those elements to overall goals, and for evaluating a set of
alternative solutions. The AHP has been used by government and industry
to assess alternatives and arrive at solutions when faced problems that
present disparate criteria and factors to consider.
The Coast Guard's panel of subject matter experts identified 68
distinct types of vessels and facilities based on their purpose or
operational description. The panel then assessed each of the 68 types
of vessels and facilities using three factors: (1) Maximum consequences
to that vessel or facility resulting from a terrorist attack; (2)
criticality to the nation's health, economy, and national security; and
(3) utility of the TWIC in reducing risk.
For the first factor (maximum consequence resulting from a
terrorist attack), we used the Coast Guard's Maritime Security Risk
Analysis Model (MSRAM). MSRAM is a terrorism risk-analysis tool the
Coast Guard uses to perform risk analysis on Critical Infrastructure
and Key Resources (CI/KR) in the maritime domain, given a range of
terrorist attack scenarios. The purpose of MSRAM is to capture and rank
the security risks facing different types of potential terrorist
targets (e.g., waterfront facilities, vessels, bridges, and other
infrastructure) spanning all CI/KR sectors in the nation's ports and on
its waterways.
An initial step in the MSRAM process is to calculate the maximum
potential consequence resulting from the total loss of a target,
factoring in injury and loss of life, economic and environmental
impact, symbolic effect, and national security impact. MSRAM then
assesses risk for a range of scenarios (each involving a combination of
potential terrorist target and method of attack) in terms of threat,
vulnerability, and consequence. MSRAM considers the response capability
of the owner or operator, local first responders, and Federal agencies
to mitigate the consequences of an attack. MSRAM also considers input
from Area Maritime Security Committees (AMSCs).\34\
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\34\ AMSCs are committees established pursuant to 46 U.S.C.
70112(a)(2)(A). AMSCs are composed of at least seven members having
an interest in the maritime security of a specific geographic area.
AMSC members may be selected from government, public safety, law
enforcement, maritime industry, and other port stakeholders. AMSCs
assist in the development, review, and update of formal plans that
detail maritime security measures and procedures for ports in a
specific geographic area. See 33 CFR part 103.
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In consultation with representatives from AMSCs throughout the
country, we have compiled MSRAM risk information from Coast Guard
Sectors and Captains of the Port (COTPs) into a database that provides
an overall national view of terrorism risk to maritime assets. For
purposes of this proposed rule, we focused on MSRAM data specific to
MTSA-regulated vessels and facilities, and used it to address the
maximum consequence that would occur from the total loss of a vessel or
facility caused by a TSI resulting from a terrorist attack. We averaged
these MSRAM consequences across similar types of vessels and facilities
to develop a standard risk for each type.
For the second factor (criticality to the nation's health, economy,
and national security), we considered the impact of the total loss of a
vessel or facility beyond the immediate local consequences, taking into
account the regional or national impacts on human health, the economy,
and national security.
For the third factor (TWIC utility), we considered the utility of
the TWIC program in reducing a vessel or facility's vulnerability to a
terrorist attack.
Using the AHP, we combined the above three factors and developed an
overall risk ranking of vessels and facilities by type. As a first step
in this process, the panel identified the 68 vessel and facility types,
and the three criteria described above. As a second step, the panel
considered different approaches to assigning numerical valued weights
to the three factors. In determining the final weights, the panel chose
the approach that best reflected its understanding of the maritime
environment and TWIC program implementation, the importance of
consequences in representing target attractiveness to terrorists, and
the panel's expert perspective of risk. The actual numerical valued
weights finalized by the panel are SSI. Finally, the panel used the AHP
math in Expert Choice to calculate the priority scores for each vessel
and facility type. At the end of this process, types of vessels and
facilities with similar scores were combined into one of three risk
groups. For a more detailed discussion of the panel's methodology, a
copy of the panel's report, ``Analysis of Transportation Worker
Identification Credential (TWIC) Electronic Reader Requirements in the
Maritime Sector'' is available for viewing in the public docket for
this rulemaking.
The ANPRM then proposed different TWIC-related requirements for
each risk group. In determining the cutoff points between risk groups,
risk rankings were graphed to identify natural breaks that occurred in
the data. For vessels, these breaks generally occurred where there was
a change in the hazardous nature of the cargo or where the number of
passengers carried aboard a vessel increased. Similarly, for
facilities, these breaks generally occurred where there was a change in
the hazardous nature of the materials stored or handled at a facility,
or where the number of passengers accessing a facility increased.
We engaged the Homeland Security Institute (HSI) to conduct an
independent peer review of the risk-based analysis that formed the
basis of the proposals in the ANPRM. HSI conducted its peer review in
accordance with OMB Memorandum M-05-03, ``Issuance of OMB's `Final
Information Quality Bulletin for Peer Review''' (Dec. 16, 2004) \35\
(OMB Review Guidelines). The OMB Review Guidelines establish
government-wide guidance aimed at enhancing the practice of peer review
of government science documents. Peer review is designed to increase
the quality and credibility of the scientific information generated
across the Federal government. The OMB Review Guidelines also discuss
the concept of a ``highly influential scientific assessment,'' as one
that would have at least one of the following characteristics: (1)
Potential impact of
[[Page 17792]]
more than $500 million in any year; (2) novel, controversial, or
precedent-setting; or (3) significant interagency interest. HSI advised
that the TWIC program is, at a minimum, precedent-setting. Therefore,
peer review of the Coast Guard's underlying analysis would be
considered at the level of a ``highly influential scientific
assessment.''
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\35\ OMB Memorandum M-05-03 is available for viewing at http://www.whitehouse.gov/sites/default/files/omb/memoranda/fy2005/m05-03.pdf.
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HSI conducted its peer review and issued a final report (HSI
Report) on October 21, 2008. HSI independently reproduced the results
based on the information provided in the Coast Guard report, ``Analysis
of Transportation Worker Identification Credential (TWIC) Electronic
Reader Requirements in the Maritime Sector,'' and deemed the process to
be technically sound. The HSI report also acknowledged that ``no
decision-aid tools * * * including the AHP, should be considered to
lead to unassailable results.'' \36\ A portion of the HSI Report is
considered Sensitive Security Information (SSI) under 49 CFR Part 15.
Therefore, a non-SSI version of the HSI Report is available for viewing
in the public docket for this rulemaking. A summary of the HSI Report
recommendations is provided below in Section III.G. ``HSI Report.''
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\36\ See HSI Report, p. 2.
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D. ANPRM Proposals
This section provides a summary of the ANPRM's proposals for TWIC
reader requirements and other TWIC-related requirements. Later parts of
Section III. ``Background and Purpose'' discuss the public comments
received on the ANPRM, as well our responses to those comments. For a
more detailed discussion of the ANPRM's proposals, please refer to the
ANPRM at 74 FR 13360. We retain many of the ANPRM's proposals in the
NPRM. We delete or modify a number of the ANPRM's proposals in the
NPRM. To avoid any confusion, if you wish to focus specifically on the
proposals in the NPRM, please refer to Section IV. ``Section-by-Section
Description of Proposed Rule.''
1. Classification of Vessels and Facilities Into Risk Groups
For vessels subject to 33 CFR part 104, the ANPRM proposed the
following risk group classifications:
Risk Group A
(1) Vessels that carry Certain Dangerous Cargoes (CDC) in bulk;
(2) Vessels certificated to carry more than 1,000 passengers; and
(3) Towing vessels engaged in towing a barge or barges subject to
paragraphs (1) or (2).
Risk Group B
(1) Vessels that carry hazardous materials other than CDC in bulk;
(2) Vessels subject to 46 CFR Chapter I, Subchapter D, that carry
any flammable or combustible liquid cargoes or residues; \37\
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\37\ The intent as used here is to capture those tank vessels
that are carrying the high flash point petroleums, like crude oil,
that are not hazardous materials, whether inland, coastal, or
seagoing.
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(3) Vessels certificated to carry 500 to 1,000 passengers; and
(4) Towing vessels engaged in towing a barge or barges subject to
paragraphs (1), (2), or (3).
Risk Group C
(1) Vessels carrying non-hazardous cargoes that are required to
have a vessel security plan (VSP);
(2) Vessels certificated to carry less than 500 passengers;
(3) Towing vessels engaged in towing a barge or barges subject to
paragraphs (1) or (2);
(4) Mobile Offshore Drilling Units (MODUs); and
(5) Offshore Supply Vessels (OSVs) subject to 46 CFR Chapter I,
Subchapters L or I.
The risk group classifications in the ANPRM for facilities are
similar to those for vessels. For facilities subject to 33 CFR part
105, the ANPRM proposed the following risk group classifications:
Risk Group A
(1) Facilities that handle CDC in bulk;
(2) Facilities that receive vessels certificated to carry more than
1,000 passengers; and
(3) Barge fleeting facilities that receive barges carrying CDC in
bulk.
Risk Group B
(1) Facilities that receive vessels that carry hazardous materials
other than CDC in bulk;
(2) Facilities that receive vessels subject to 46 CFR Chapter I,
Subchapter D, that carry any flammable or combustible liquid cargoes or
residues;
(3) Facilities that receive vessels certificated to carry 500 to
1,000 passengers; and
(4) Facilities that receive towing vessels engaged in towing a
barge or barges carrying hazardous materials other than CDC in bulk,
carrying crude oil, or towing vessels certificated to carry 500 to
1,000 passengers.
Risk Group C
(1) Facilities that receive vessels carrying non-hazardous cargoes
that are required to have a VSP;
(2) Facilities that receive towing vessels engaged in towing a
barge or barges carrying non-hazardous cargoes;
(3) Facilities that receive vessels certificated to carry less than
500 passengers.
The ANPRM proposed to classify all OCS facilities subject to 33 CFR
part 106 into Risk Group B.
In the ANPRM, we contemplated the possibility that vessels and
facilities may move from one risk group to another, based on the cargo
handled or carried at any given time. In those instances, the owner or
operator would be expected to explain, in an amended security plan, how
their regulatory compliance program would change to reflect movement
between risk groups, with particular attention to the security measures
to be taken when moving from a lower risk group to a higher risk group.
2. TWIC Reader Requirements for Risk Group A
The ANPRM proposed TWIC reader requirements and other TWIC-related
requirements for Risk Group A that would utilize the TWIC's most
protective measures for identity verification, card authentication, and
card validation.
For identity verification, owners and operators of vessels or
facilities in Risk Group A would be required to either match the TWIC-
holder's fingerprint to one of the fingerprint templates stored in the
TWIC, or match the TWIC-holder's alternate biometric (e.g., retina
scan, hand geometry, or other biometric) to one captured and stored in
a PACS. A TWIC reader can work as a stand-alone unit, or it can be
integrated into a facility's PACS. Either way, the owner or operator
would be required to use a TWIC reader from the official list of TSA-
approved TWIC readers. The biometric match would need to be made using
a TWIC reader and/or PACS before the individual is granted unescorted
access to secure areas.
When electronically matching biometrics within a PACS, an owner or
operator would be permitted to use a different biometric than a
fingerprint (e.g., an iris scan or hand geometry), stored in the PACS
and matched to the biometric of the TWIC-holder. The owner or operator
would be required to link their system to the TWIC in such a manner
that the PACS precludes access to someone who does not have a TWIC, or
to someone other than the
[[Page 17793]]
individual to whom the TWIC has been issued. This requirement means
that the TWIC would need to be read and the stored biometric identifier
matched against the TWIC-holder's fingerprint at least once, when the
individual's information is entered into the PACS. Before relying on
the alternate biometric, it must be verified, through a one-to-one
fingerprint match, that the individual presenting the TWIC is actually
the person to whom the TWIC was issued.
In the ANPRM, we recognized that while PIN verification could be
used to enhance the accuracy of identity verification, this method
presents operational and environmental challenges. The PIN can only be
entered when the TWIC is inserted into a ``contact'' TWIC reader, where
the TWIC is inserted into a slot allowing direct contact between the
TWIC reader and the chip embedded in the TWIC. Comments received in
response to the TWIC 1 NPRM, as well as recommendations from the
National Maritime Security Advisory Committee (NMSAC), emphasized
concerns over whether contact TWIC readers would be able to withstand
the harsh conditions often present in a maritime environment.
Additional concerns were raised as to whether maritime workers should
be expected to remember a 6- to 8-digit PIN, especially workers who
would not typically use the PIN on a regular basis. Concerns were also
raised over the operational delays associated with a PIN requirement.
In light of these concerns, and taking into account the level of
security already provided via the TWIC's other features, the ANPRM did
not propose a PIN requirement to enhance identity verification.
For card authentication, owners and operators of vessels or
facilities in Risk Group A would be required to use a TWIC reader to
screen individuals seeking access to secure areas. As with identity
verification, owners and operators would be permitted to integrate TWIC
into a PACS, provided that the owner or operator completes this
integration before the TWIC-holder's information is added into the
PACS, and before the TWIC-holder is granted unescorted access to secure
areas.
For card validation, owners and operators of vessels or facilities
in Risk Group A would be required to use a TWIC reader to check an
individual's TWIC against the CCL. An owner or operator updates CCL
information by downloading the current list onto the TWIC reader or
PACS. At MARSEC Level 1, owners and operators would be required to
update the CCL on a weekly basis. At MARSEC Levels 2 and 3, owners and
operators would be required to update the CCL on a daily basis.
3. TWIC Reader Requirements for Risk Group B
The ANPRM proposed TWIC reader requirements and other TWIC-related
requirements for Risk Group B that would differ depending on MARSEC
Level. At MARSEC Levels 2 and 3, owners and operators of vessels or
facilities in Risk Group B would be required to utilize the most
protective measures of the TWIC for identity verification, card
authentication, and card validation. Those requirements are the same as
those described above with respect to Risk Group A.
At MARSEC Level 1, owners and operators would perform card
authentication and card validation using a TWIC reader in the same
manner required at higher MARSEC Levels. At MARSEC Level 1, however,
owners and operators would not be required to use a TWIC reader to
perform a biometric match for identity verification, subject to the
exception described below. Instead, owners and operators would be
permitted to perform identity verification by using the TWIC as a
visual identity badge. The exception to this leniency at MARSEC Level 1
is that on a random basis, but at least 1 day per month, owners and
operators would be required to perform identity verification using a
TWIC reader to match the TWIC-holder's fingerprint to one stored in the
TWIC.
The ANPRM's proposed requirements for Risk Group B were based on a
determination that the TSI risk to such vessels and facilities at
MARSEC Level 1 does not warrant a requirement to perform routine
biometric identity verification using a TWIC reader.
4. TWIC Requirements for Risk Group C
The ANPRM proposed TWIC requirements for Risk Group C that would
not involve the use of a TWIC reader at any MARSEC Level. Instead,
owners and operators of vessels or facilities in Risk Group C would
visually inspect the security features on the TWIC for identity
verification, card authentication, and card validation. TWIC-holders
working on vessels or at facilities in Risk Group C would periodically
have their TWICs scanned using a TWIC reader during Coast Guard
inspections and unannounced spot checks.
The ANPRM's proposed requirements for Risk Group C were based on
our determination that, given the type of commodities and small number
of passengers typical of this risk group, it is likely that these
vessels and facilities present a less attractive target to individuals
who wish to do harm than vessels and facilities in Risk Groups A and B.
Nonetheless, vessels and facilities in Risk Group C still present some
risk of being involved in a TSI. As a result, we determined that visual
inspection of TWICs would be an appropriate security measure.
5. Recurring Unescorted Access
The concept of Recurring Unescorted Access (RUA) was first proposed
in the TWIC 1 NPRM.\38\ RUA was conceived as a means of providing
flexibility to vessel owners and operators so that the TWIC program
would provide them with a valuable security enhancement without
unnecessarily burdening daily operations. As initially proposed, RUA
would apply to vessels that would otherwise be required to use TWIC
readers. RUA would allow the owners and operators of such vessels to
grant certain TWIC-holders the privilege of entering secure areas on a
repetitive basis without having their TWICs electronically scanned by a
TWIC reader each time, provided that certain preconditions had been
met.
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\38\ See 71 FR 29410-29411.
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The TWIC 1 NPRM cited two factors on which the decision to grant
RUA privileges should be based: (1) The relationship of the individual
to the vessel, or how well ``known'' the individual is; and (2) the
individual's need to have frequent and unimpeded access to the vessel.
We assumed that the crew of most vessels would consist of a relatively
small number of individuals who would quickly become familiar enough
with one another and readily distinguish each other from non-
crewmembers. Accordingly, on such vessels, there would be no added
benefit from repeated biometric identity verification using a TWIC
reader.
Although RUA would exempt certain individuals from having their
TWICs routinely scanned by a TWIC reader, these individuals would still
need to present a TWIC for visual inspection. Additionally, prior to
granting RUA privileges to a TWIC-holder, the vessel owner or operator
would be required, among other things, to perform a one-time scan of
the individual's TWIC using a TWIC reader for initial identity
verification, card authentication, and card validity.
In addition to proposing RUA for vessels, the ANPRM also proposed
RUA for facilities. Thus, owners and operators of vessels or facilities
could grant RUA privileges to a number of individuals per vessel or
facility.
[[Page 17794]]
Owners and operators would be required to explain their RUA procedures
in an amended security plan.
As proposed in the ANPRM and based on a recommendation from the
Towing Safety Advisory Committee (TSAC), RUA could be granted to a
maximum of 14 individual TWIC-holders per vessel or facility. TSAC's
rationale for establishing 14 as the maximum cut off for requiring TWIC
readers on vessels is that these vessels have a reduced vulnerability
because the individuals are all ``known'' to one another. The number
was developed by taking into account the fact that for a small vessel,
such as a towing vessel or offshore supply vessel, the crew would
typically include up to one Master, one Chief Engineer, and three four-
person crews who rotate through watch shifts.
6. TWIC Reader Approval, Calibration, and Compliance
In the ANPRM, we considered the possibility that some owners and
operators may wish to incorporate TWIC reader requirements into an
existing PACS. In those situations, the ANPRM proposed to require
owners and operators to follow the standard/specification to be
developed from the results of the TWIC Pilot.
The ANPRM stated that we were considering alternatives for how to
ensure that TWIC readers are maintained in proper working order. The
existing provisions in 33 CFR 104.235, 104.260, 105.225, 105.250,
106.230, and 106.255 would require TWIC readers to be inspected,
tested, calibrated, and maintained in accordance with the
manufacturers' recommendations, and that records of those actions be
maintained as well. The ANPRM requested comments on whether TWIC
readers should be subject to additional Coast Guard inspections or
third-party audits.
7. Security Plan Amendment
The ANPRM proposed a requirement on owners and operators to amend
their security plans to include TWIC requirements within 6 months of
promulgation of a TWIC reader final rule. In the ANPRM, we indicated
that we would consider re-evaluating this deadline, and we sought
public comment on how long owners and operators should have to amend
security plans to incorporate TWIC reader requirements. Security plan
amendments would need to detail how the owner or operator would
implement TWIC requirements, including those promulgated in the TWIC 1
Final Rule, and TWIC reader requirements, if applicable.
The ANPRM mentioned that we would consider additional security plan
provisions that require the owner or operator to discuss procedures for
handling TWIC-holders with poor quality or no fingerprints, as well as
TWIC-holders who are otherwise unable to match a live fingerprint to
one of the templates stored in the card. The ANPRM also mentioned that
we were considering a requirement on owners and operators using a
separate PACS to explain how they will protect personal identity
information.
The ANPRM articulated our position that requests for waivers,
alternatives, and equivalents would need to comply with existing
regulatory requirements found in 33 CFR 101.120, 101.130, 104.130,
104.135, 105.130, 105.135, 106.125, and 106.130.
In the ANPRM, we stated our intent to not amend 33 CFR 101.120
regarding Alternative Security Programs (ASPs). Instead, we would
exercise our existing authority, found in 33 CFR 101.120(d)(1)(ii), to
require those organizations that have approved ASPs to amend them to
incorporate the TWIC requirements. Please see Section IV.C. below for a
discussion on our decision to eliminate this proposal from the NPRM.
An ASP is a third-party or industry organization-developed standard
that the Coast Guard has determined provides an equivalent level of
security to that established by 33 CFR parts 104 or 105. MTSA-regulated
facilities that are members in good standing of trade organizations or
industry groups may operate under an ASP, instead of an FSP, submitted
by the trade organization or industry and approved by the Coast
Guard.\39\ The Coast Guard permits use of ASPs to tailor Coast Guard
security requirements to diverse industries within the maritime
community. ASPs allow owners and operators to participate in a
development process with other industry groups, associations, or
organizations, and to coordinate their compliance with Coast Guard
security rules and other rules already implemented.\40\ Practically,
ASPs are written to address a group of owners and operators based on a
business model. Thus, a security standard for the small passenger
industry will be different from the industry standard for container
vessels, simply based on the differences in their respective
vulnerabilities and associated TSI consequence. In effect, ASPs allow
the end-users to implement an existing security program as an
alternative to creating an individual vessel- or facility-specific
security plan. ASPs also lessen the numbers of security plans that must
be reviewed and approved by the Coast Guard. Currently, there are 11
approved ASPs.
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\39\ See 33 CFR 101.125.
\40\ See 68 FR 60449, 60454, and 60532 (October 22, 2003).
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8. Recordkeeping
The ANPRM proposed to require owners and operators to maintain, for
a period of 2 years, records captured by TWIC readers on each scan.
Under the ANPRM, owners and operators would also maintain, for a period
of 2 years, records on individuals to whom RUA was granted. Finally,
the ANPRM indicated that we would consider whether to require owners
and operators to maintain a record to demonstrate that they have
completed required card validity checks.
9. Additional Persons Required To Obtain TWICs
MTSA requires the Secretary to issue TWICs to certain individuals
unless the Secretary determines that an individual poses a security
risk warranting denial of the card.\41\ Section 70105(b)(2) of Title 46
U.S.C. lists the categories of individuals to whom this requirement
applies.
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\41\ 46 U.S.C. 70105(b)(1).
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We published the ANPRM prior the enactment of the CGAA 2010. At the
time we published the ANPRM, the list of individuals to whom the
Secretary was required to issue a TWIC included: (1) An individual
allowed unescorted access to secure areas of a MTSA-regulated vessel or
facility; (2) an individual issued a license, certificate of registry,
or merchant mariners document; (3) a vessel pilot; (4) an individual
engaged on a towing vessel that pushes, pulls, or hauls alongside a
tank vessel; (5) an individual with access to SSI; (6) other
individuals engaged in port security activities; and (7) other
individuals as determined appropriate by the Secretary.\42\
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\42\ 46 U.S.C. 70105(b)(2).
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The Coast Guard implementing regulations in 33 CFR 101.514(a)
require individuals to obtain a TWIC as a pre-condition to gaining
unescorted access to secure areas of MTSA-regulated vessels and
facilities. For purposes of Coast Guard regulation of these vessels and
facilities, we believe that the language in 33 CFR 101.514(a)
adequately covers the individuals required to obtain a TWIC.
Nonetheless, at the time we published the ANPRM,
[[Page 17795]]
we were aware of a potential gap between MTSA and our regulations.
Specifically, there may be some vessel pilots who do not hold Federal
licenses, and there may be some individuals who are not credentialed
mariners engaged on towing vessels that are not MTSA-regulated.
Therefore, to avoid any possible gaps between MTSA and our regulations,
we included a proposal in the ANPRM to explicitly include these
individuals in the regulatory requirement to obtain a TWIC.
Subsequent legislation has caused us to eliminate part of this
proposal from this NPRM. Section 809 of the CGAA 2010 changed the
applicability of 46 U.S.C. 70105(b)(2)(B) and (D) so that the Secretary
is now required to issue a TWIC to credentialed mariners and those
engaged on towing vessels only if these individuals are allowed
unescorted access to a secure area of a MTSA-regulated vessel. Section
809 has eliminated the gap with respect to mariners on towing vessels.
Mariners who are allowed unescorted access to MTSA-regulated vessels
are already covered in the existing regulatory requirement to obtain a
TWIC. We no longer need to add a provision requiring mariners working
on vessels that are not MTSA-regulated to obtain a TWIC. While there
may be some vessel pilots that do not hold Federal licenses, we have
not determined whether there is a population of State-licensed vessel
pilots that are not otherwise required to obtain a TWIC because they
access secure areas of MTSA-regulated vessels. We seek public comment
on this subject and whether a specific provision to include them in the
regulatory requirement to obtain a TWIC is necessary. If there is a
population of State-licensed vessel pilots not covered under the
current regulatory requirement to obtain a TWIC, we intend to revise 33
CFR 101.514 to cover that population. Please see Section IV.C. below
for further discussion on our decision to eliminate or modify this
proposal in this NPRM.
E. Public Comments Received in Response to the ANPRM and Public Meeting
This section provides a detailed discussion of the public comments
received during the ANPRM's comment period and public meeting. This
section also provides our responses to those comments.
We received approximately 100 comment letters in response to the
ANPRM. In addition, we hosted a public meeting in Arlington, Virginia
on May 6, 2009, to provide another forum for obtaining public feedback
on the ANPRM.\43\ Comments received at the public meeting aligned into
approximately 20 categories. Copies of the public meeting sign-in
sheets, written comments received, and a transcript of the public
meeting, are available for viewing in the public docket for this
rulemaking.
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\43\ See Transportation Worker Identification Credential
(TWIC)--Reader Requirements, 74 FR 17444 (Apr. 15, 2009) to view the
notice of public meeting; request for comments.
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Commenters represented a wide range of individuals and entities,
including: Federal, State, and local government officials; port
authorities; representatives of affected industries, such as maritime,
trucking, rail, security, port, and other facilities; professional/
trade associations; labor unions; and private citizens. The comments
received from these parties helped to inform the proposals in this
NPRM.
1. General Comments
Numerous commenters supported the ANPRM's general approach to TWIC
reader requirements and other TWIC-related requirements. Many
recognized the potential value of the TWIC program to enhance
transportation security in general, and maritime security in
particular. Several commenters commended us for first publishing an
ANPRM to solicit public input on a preliminary set of proposals before
publishing an NPRM.
Several commenters cautioned us to implement TWIC reader
requirements in a manner that does not unnecessarily burden affected
industries. We believe the requirements proposed in this NPRM achieve
that goal. Section V. ``Regulatory Analysis'' below provides a detailed
discussion of the benefits and burdens associated with this proposed
rule.
One commenter suggested that the NPRM should clarify which
provisions specifically apply to vessels, and which apply to
facilities. Similarly, two commenters suggested that we consider
proposing separate sets of regulations for vessels and facilities.
Our proposals in this NPRM clearly distinguish between vessels and
facilities. To clarify, 33 CFR part 101 sets forth general maritime
security regulations, 33 CFR part 104 sets forth maritime security
regulations specific to vessels, 33 CFR part 105 sets forth maritime
security regulations specific to facilities, and 33 CFR part 106 sets
forth maritime security regulations specific to OCS facilities. As
described in greater detail below in Section IV., this NPRM proposes to
add or amend relevant provisions in each of these parts. Please refer
to Table ES-1 in the Executive Summary for a breakdown of the NPRM
proposals by vessel, facility, and OCS facility.
Several commenters expressed general concerns about TWIC reader
requirements. Some opposed any requirement to use TWIC readers, citing
financial burdens and operational complications they believe would
result from such requirements. Others highlighted differences between
different types of vessels, and suggested that TWIC readers may not
necessarily enhance security in each case. Commenters also raised
concerns about increased traffic and other operational challenges
associated with TWIC reader requirements.
As discussed more fully below in Sections IV. and V., this NPRM
does not propose TWIC reader requirements for Risk Group B. This
decision was based, in part, on comments received in response to the
ANPRM. Many of the comments opposing TWIC reader requirements
represented the interests of owners and operators of vessels or
facilities assigned to Risk Group B. We have estimated the annualized
cost of the TWIC reader requirements on vessels and facilities in Risk
Group A at $26.5 million, at a 7 percent discount rate. Had we proposed
TWIC reader requirements to also include Risk Group B facilities, the
annualized cost would increase to $141.2 million, at a 7 percent
discount rate. Moreover, including Risk Group B in the TWIC reader
requirements would not only increase the annualized cost, but the
average consequence figure (the monetized costs of fatalities and
injuries resulting from a TSI) would drop by more than one-third. While
this does not mean that there should be no TWIC reader requirements for
Risk Group B, we believe this analysis supports our phased approach for
requiring TWIC readers first for Risk Group A. We also wish to
emphasize the utility of TWIC in enhancing security even when not used
in conjunction with TWIC readers. Before mariners and other individuals
were required to obtain a TWIC, they could access secure areas of MTSA-
regulated vessels and facilities after presenting a State-issued
driver's license or any number of other government-issued
identification cards. This patchwork system of valid credentials
required security personnel to become familiar with the appearance and
security features of every type of acceptable credential. Moreover,
since some government-issued credentials are used for purposes other
than security, applicants are not necessarily screened
[[Page 17796]]
from a security threat perspective. Additionally, the eligibility
criteria for some government-issued credentials do not preclude
issuance to an individual with a felony criminal record.
The TWIC program mitigates the above shortcomings. Since April 15,
2009, TWIC has been the single credential used throughout the maritime
sector. Accordingly, security personnel only need to become familiar
with the appearance and security features of one credential. Moreover,
unlike other government-issued credentials, TWIC is specifically
designed for transportation security. Its purpose is to ensure a vetted
maritime workforce by establishing security-related eligibility
criteria, and by requiring each TWIC-holder to undergo TSA's security
threat assessment as part of the process of applying for and obtaining
a TWIC.
We will continue to analyze risk data and reassess the need to
modify or add TWIC reader requirements in the future. We believe that
this approach should alleviate the concerns raised by these commenters.
2. Statutory Authority
A number of commenters emphasized that the Secretary's authority to
require TWIC readers on vessels is discretionary, and not mandated by
MTSA. We agree with this comment.
One commenter requested clarification that if vessels in lower risk
groups have not been determined by the Secretary to be at risk of a
TSI, the SAFE Port Act prohibits TWIC reader requirements for such
vessels. We disagree with this comment. The relevant portion of the
SAFE Port Act provides: ``The Secretary may not require the placement
of an electronic reader for transportation security cards on a vessel
unless: (1) The vessel has more individuals on the crew that are
required to have a transportation security card than the number the
Secretary determines, by regulation issued under subsection (k)(3),
warrants such a reader; or (2) the Secretary determines that the vessel
is at risk of a severe TSI.'' \44\ Under the SAFE Port Act, the
Secretary could require vessels in lower risk groups to use TWIC
readers if their crew size exceeds the minimum threshold, in this rule
proposed as 14 individuals, established by regulation. While this NPRM
does not propose TWIC reader requirements for Risk Groups B or C, the
Coast Guard is not prohibited from doing so under the SAFE Port Act.
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\44\ 46 U.S.C. 70105(m).
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One commenter noted that certain proposals in the ANPRM would apply
to facilities that receive towing vessels engaged in towing a barge or
barges carrying non-hazardous cargoes, facilities that receive vessels
subject to 46 CFR Chapter I, Subchapter D, that carry any flammable or
combustible liquid cargoes or residue, and facilities that receive
vessels not transferring cargo. The commenter suggested that these
facilities are not covered by MTSA, and therefore, should not be
subject to TWIC reader requirements. We disagree with the suggestion
that these facilities are not covered by MTSA. MTSA broadly defines the
term ``facility'' to mean ``any structure or facility of any kind
located in, on, under, or adjacent to any waters subject to the
jurisdiction of the United States.'' \45\ MTSA requires facility
security plans (FSPs) for ``facilities that the Secretary believes may
be involved in a transportation security incident* * *.'' \46\ MTSA
does not prohibit us from placing TWIC requirements on such facilities.
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\45\ 46 U.S.C. 70101(2).
\46\ 46 U.S.C. 70103(c)(2)(A).
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3. Risk-Based Approach
a. General
We received a broad range of comments with respect to the ANPRM's
risk-based approach to classifying MTSA-regulated vessels and
facilities. Many commenters expressed support for the ANPRM's risk-
based approach. A number of commenters expressed support for a risk-
based approach, but cited general reservations on the way such an
approach was proposed in the ANPRM. Other commenters expressed
opposition to the ANPRM's risk-based approach.
One argument cited by commenters opposing the ANPRM's risk-based
approach is that vessels have already been divided into risk groups by
MTSA with respect to security plan requirements, and by the Port
Security Grant program. These commenters argued that to introduce
another risk-based classification matrix would create too much
complexity for affected industries. A larger group of commenters took
the opposite view, however, arguing that the ANPRM's matrix should be
based on additional variables, such as: Risk-reduction measures vessels
and facilities have already implemented; size and type of vessel; port
traffic volume; port location; port-wide risk; type, volume, and
frequency of carrying or handling high-risk cargoes; characteristics of
container cargoes and facilities; number of TWIC-holders with access to
a vessel or facility; scenarios other than MSRAM's ``total
destruction'' scenario; compliance costs; and other industry-specific
considerations.
After considering these wide-ranging comments that fell on both
sides of the issue, we continue to believe that the risk-based approach
set forth in the ANPRM appropriately categorizes types of vessels and
facilities based on their risk of being involved in a TSI, without
creating an overly complex categorization system. Other existing risk-
based categorization matrices are not tailored to TWIC requirements
like the AHP/MSRAM approach described above. Additionally, as discussed
more fully below in section III.G., ``HSI Report,'' HSI conducted a
generally favorable independent peer review of the risk-based approach
that formed the basis of the ANPRM's proposals.
Several commenters requested that the Coast Guard establish an
appeals process whereby owners and operators could petition to have an
assigned risk-ranking reviewed and lowered based on unique
circumstances. We wish to clarify that an appeals process already
exists for those directly affected by a decision or action taken
pursuant to the Coast Guard's maritime security regulations.\47\ Thus,
owners and operators would be able to appeal a risk-ranking under the
existing procedures. The establishment of a separate appeals process
for petitioning TWIC-related risk-rankings is not necessary.
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\47\ 33 CFR 101.420; 33 CFR 104.150; 33 CFR 105.150; 33 CFR
106.145.
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Other commenters suggested that COTPs should assign risk ratings to
each vessel and facility on a case-by-case basis. We disagree with this
approach because it is less predictable than a clear regulatory
standard, and could lead to different standards being applied to
similar vessels or facilities depending on their location.
b. MSRAM
Several commenters addressed the use of MSRAM as part of the
ANPRM's risk-based approach. Some suggested that MSRAM should be
updated to take into account risk-mitigation measures that industry has
implemented since 2005. We will continue to update the MSRAM data, but
we believe the data that informed the ANPRM provides an accurate basis
for the regulatory proposals in this NPRM.
Other commenters requested additional information about MSRAM in
order for them to comment on its utility in developing a risk-based
classification system. In response, we emphasize that the ANPRM and
this
[[Page 17797]]
preamble set forth the general principles that underlie MSRAM as a
risk-analysis tool. The AHP/MSRAM process generates risk scores for
facility and vessel types. These scores are based on factors related to
TSI consequence. Since this information is designated as SSI, the
publication of more specific MSRAM data is prohibited under 49 CFR Part
15.
c. Movement Between Risk Groups
Several commenters agreed with the ANPRM's proposal to permit
movement between risk groups by vessels and facilities that handle or
carry dangerous cargoes only on a limited basis. Several other
commenters took the opposite view, arguing that movement between risk
groups would create a burdensome and confusing set of requirements, and
would also introduce unfair economic incentives in favor of facilities
in lower risk groups.
We continue to favor a flexible approach that allows for the option
of vessels and facilities to move between risk groups based on the
cargo handled or carried at a given time. This would ensure appropriate
utilization of TWIC readers when dangerous cargoes are present, without
imposing undue burdens when dangerous cargoes are not. Owners and
operators who do not wish to take advantage of this flexibility would
not be required to do so. Owners and operators who wish to take
advantage of this flexibility would be expected to explain, in an
amended security plan, how changes at their vessel or facility qualify
for a higher or lower risk group and address the change in risk.
A number of commenters suggested alternatives to the ANPRM's
approach with respect to movement between risk groups. Several argued
in favor of a uniform set of TWIC requirements applicable to all
vessels and facilities, which would obviate the need for regulatory
provisions dealing with movement between risk groups. Two commenters
suggested that facilities in Risk Group C should always retain their
classification in that group, regardless of whether they handle
dangerous cargoes on an infrequent basis.
We do not believe that a ``one size fits all'' approach to TWIC
requirements is efficient or effective. Instead, we favor a more
targeted approach that requires TWIC readers for vessels and facilities
deemed higher risk, and requires less stringent TWIC requirements for
vessels and facilities not deemed higher risk. We also generally
disagree with an approach that would permit a vessel or facility to
comply with the requirements of a lower risk group while handling or
carrying cargoes that would otherwise trigger the TWIC requirements of
a higher risk group. Therefore, this NPRM proposes to give the option
for vessels and facilities to move between risk groups based on the
cargo handled or carried at a given time.
Two commenters suggested that facilities in Risk Group C should be
permitted to appeal to the COTP for a special operating designation to
cover their infrequent handling of dangerous cargoes. We reiterate that
an owner or operator may apply for a waiver of any requirement the
owner or operator considers unnecessary, as provided in 33 CFR 104.130,
105.130, and 106.125. We also wish to note that if such a waiver is
granted, an owner or operator is not required to update their security
plan after approval of the waiver.
Three commenters requested clarification of the proposed TWIC
requirements in scenarios where a vessel assigned to a higher risk
group calls on a facility assigned to a lower risk group. One commenter
suggested that, in such cases, we should allow time for TWIC
infrastructures to be updated.
We wish to clarify that, according to our risk-based approach,
facilities are classified by the types of commodities they handle and
the types of vessels they receive. Thus, a facility that receives Risk
Group A vessels would be categorized as a Risk Group A facility. We
request additional comments on specific scenarios that might warrant
further consideration of potential regulatory requirements to address
the interaction of vessels and facilities in different risk groups.
Some commenters suggested that the regulations should provide for
multiple risk group assignments within one facility for situations
where one portion of the facility handles dangerous cargoes, while
another portion does not. We are considering granting this request. If
we grant this request, we expect the regulations to reflect that plans
for multiple risk group assignments within a facility would be reviewed
on a case-by-case basis and subject to COTP approval. We request
additional comments from the public that specifically describe how
multiple risk group assignments might apply to their facilities. We
note that in the TWIC 1 Final Rule, we provided facilities with greater
flexibility by revising 33 CFR 105.115 to allow owners and operators to
redefine their ``secure area'' as only that portion of their access
control area that is directly related to maritime transportation. We
seek comments from the public on whether the additional flexibility of
being able to further modify a facility's footprint by assigning
different portions of the facility to different risk groups is
necessary or appropriate.
d. MARSEC Levels
Several commenters agreed in principle with the ANPRM's approach of
imposing enhanced TWIC requirements at higher MARSEC Levels, but
questioned why there was little difference between the ANPRM's TWIC
reader requirements for Risk Groups A and B at different MARSEC Levels.
These commenters suggested alternative approaches, all of which were
variations on the theme that TWIC reader requirements should become
more stringent as MARSEC Levels are elevated. Other commenters
disagreed with the ANPRM's approach, but proposed stricter
requirements, suggesting that all MTSA-regulated vessels and facilities
should be required to use TWIC readers at elevated MARSEC Levels.
Another commenter disagreed with the ANPRM's approach, arguing that to
impose different TWIC reader requirements depending on MARSEC Level is
overly complex and would provide no added security benefits.
We recognize that the system of MARSEC Levels creates a useful
mechanism for the Coast Guard to elevate security requirements at times
of heightened risk. Nonetheless, we use this mechanism in a targeted
manner, and at this time, we do not believe that elevated TWIC reader
requirements at higher MARSEC Levels are generally practical or
appropriate. In considering the comments above, we note the change we
have made from the ANPRM to this NPRM with respect to TWIC reader
requirements. In the ANPRM, we proposed TWIC reader requirements for
Risk Groups A and B, with stricter TWIC reader requirements for both
risk groups at higher MARSEC Levels. The ANPRM's stricter TWIC reader
requirements would have primarily affected Risk Group B because the
ANPRM proposed routine biometric scanning with a TWIC reader for Risk
Group A at all MARSEC Levels. For example, the ANPRM would have
required Risk Group B to use TWIC readers at MARSEC Level 1 for card
authentication (i.e., no routine biometric scan) and once-monthly
biometric identity verification. The ANPRM, however, would have only
required Risk Group B to regularly use TWIC readers for biometric
identity verification at higher MARSEC Levels.
In this NPRM, we have eliminated the proposed TWIC reader
requirements for Risk Group B. The requirements for
[[Page 17798]]
routine biometric scanning with a TWIC reader for Risk Group A remain
the same as in the ANPRM. Note that we propose increased requirements
at higher MARSEC Levels to the extent that the NPRM would require Risk
Group A to perform daily updates of CCL information at higher MARSEC
Levels, instead of the weekly updates required at MARSEC Level 1.
We also note that data from the TWIC Pilot demonstrated that
switching between different TWIC reader modes of operation negatively
impacted the efficiency of TWIC reader use by complicating the learning
process for TWIC-holders. According to the TWIC Pilot, TWIC-holders
were confused by the different procedural requirements for the
different TWIC reader modes of operation, regardless of attempts to
inform TWIC-holders in advance of mode changes. This often resulted in
delays caused by TWIC-holders' confusion as to whether or not they
needed to place their finger on the TWIC reader's fingerprint sensor.
In contrast, the TWIC Pilot found that when TWIC readers were used in
the same mode of operation for a sustained period of time, TWIC-holders
became familiar with a consistent throughput procedure, resulting in
more efficient processing. While more stringent TWIC reader
requirements might seem appropriate at higher MARSEC Levels, the TWIC
Pilot demonstrated the importance of a consistent user experience. We
also note that according to existing regulations in 33 CFR 101.405, the
Coast Guard may issue MARSEC Directives setting forth mandatory
measures if we determine that additional security measures are
necessary to respond to specific threats.
Consistent with the findings of the TWIC Pilot, the TWIC reader
requirements proposed in this NPRM call for no switching between TWIC
reader modes, and also call for little variation in requirements at
higher MARSEC Levels. The only difference between the requirements
proposed in the ANPRM and this NPRM based on MARSEC Level is that, at
MARSEC Level 1, owners and operators of vessels or facilities in Risk
Group A would be required to perform card validity checks based on CCL
information that has been updated weekly, whereas at higher MARSEC
Levels, the CCL updates would be required daily. The increased risk
associated with elevated MARSEC Levels warrants this requirement to
update the CCL information more frequently. The Coast Guard seeks
public comment on this approach.
e. CCL and ``Privilege Granting''
Most of the comments we received regarding the CCL recognized some
benefits to card validation requirements that involve checking TWICs
against this list. One commenter, however, stated that the benefits of
such requirements would not outweigh the burdens. We disagree with this
comment. Invalid TWICs are placed on the CCL if they are lost, stolen,
damaged, or revoked by TSA for cause. The benefit of a requirement to
check TWICs against the CCL is that it enables owners and operators to
limit the access to secure areas of our nation's transportation system
to individuals that hold a TWIC. We estimate the burden of updating CCL
information into the TWIC reader or PACS to be approximately 30 minutes
per week. For a more detailed discussion of the costs and benefits
associated with this proposed rule, see Section V. ``Regulatory
Analyses'' below.
Three commenters requested that more frequent or real-time updated
CCL information be made available. These commenters argued that access
to real-time CCL information would enhance security better than the
method proposed in the ANPRM, which requires owners and operators to
update CCL information on a weekly or daily basis depending on the
particular MARSEC Level. Other commenters felt that daily or weekly
download requirements are reasonable.
We believe that the requirements to download the CCL weekly or
daily (based on MARSEC level) strike a reasonable balance between
security and practicality. Owners and operators who wish to download
CCL information more frequently would be able to do so.
Two commenters requested functionality that would enable CCL
information to be downloaded directly into an entity's PACS. We confirm
that this functionality exists via Internet connection.
Other commenters requested functionality that would make CCL
information available through additional mechanisms, such as wireless
connection to a TWIC reader, manual download to a TWIC reader, access
via smart-phone, or a searchable Internet database accessible via the
Homeport \48\ or other secure system. We emphasize that the CCL
information is available via the Internet through a wireless device or
manual download to a TWIC reader.\49\
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\48\ Homeport is a publicly accessible internet portal located
at https://homeport.uscg.mil, which provides users with current
maritime security information. It also serves as the Coast Guard's
communication tool designed to support the sharing, collection, and
dissemination of sensitive but unclassified information to targeted
groups of registered users within the port population.
\49\ The CCL is updated daily and is publicly available for
download on the Internet at https://twicprogram.tsa.dhs.gov/TWICWebApp/.
---------------------------------------------------------------------------
Seven commenters expressed concerns over the CCL because it groups
together individuals who are legitimate security threats with
individuals who merely have a lost or stolen TWIC. These commenters
felt that individuals in the latter categories would be unduly
stigmatized by being placed on the CCL together with individuals
identified as security threats. Accordingly, they argued that the CCL
should focus exclusively on individuals determined to be security
threats.
We wish to clarify that the CCL does not contain names, any
personally identifiable information, or any security information. The
CCL is simply a list of TWIC numbers that have not yet expired, but are
no longer valid for entry to secure areas due to their reported loss or
theft, being revoked by TSA, or replaced administratively due to
damage, or other reason.
We also note that the Coast Guard does not maintain or control the
content of the CCL. The CCL is maintained and controlled by TSA. The
Coast Guard has shared these comments with TSA for use in future
planning. Facility and vessel owners and operators should understand
that a variety of factors could cause a TWIC to be listed on the CCL.
One commenter suggested that we use a vehicle, such as the Homeport
system, to notify employers when an employee has been identified as a
national security threat or otherwise deemed ineligible to hold a TWIC.
In response to this comment, we note that national security threats are
dealt with in the manner prescribed by relevant law enforcement
agencies, and typically do not involve release of any information that
could compromise an ongoing investigation, including whether an
individual may pose a national security threat. We also note, however,
that TSA requires all TWIC applicants to acknowledge that TSA may
notify employers and facility owners and operators if there is an
imminent threat of risk to individuals or property.
Several commenters expressed opinions on the ANPRM's proposal
regarding a ``privilege granting'' system, which would enable an owner
or operator to register with TSA the names of specific TWIC-holders
granted access to secure areas. TSA would then contact the owner or
operator directly when a registered individual has been added to
[[Page 17799]]
the CCL. Approximately 20 commenters stated that they would prefer a
privilege-granting system over a requirement to continually download or
manually check CCL information. One of these commenters suggested that
privilege granting should actually be a minimum requirement for all
owners and operators of vessels and facilities in Risk Group C, because
this would confer a meaningful security benefit at little cost. Most of
the commenters supporting a privilege-granting system opposed the
proposition to pay a fee for it. Two commenters suggested that if a fee
were to be charged, the NPRM should include a fee estimate so that the
public would have more of a basis on which to comment.
Several commenters were not in favor of the ANPRM's privilege-
granting system. One simply felt it is unnecessary. Another cited
employee privacy concerns. One commenter stated that a privilege-
granting system might provide some benefit to vessels, but would not
benefit facilities. Another stated that a privilege-granting system
would not be a viable option for tug or barge operators because these
operators do not know which individuals require access to which vessels
or facilities.
After considering the comments and further analysis, we have
decided not to include a privilege-granting system in this NPRM. The
population of TWIC-holders granted access to any given vessel or
facility often changes, which means that a privilege-granting system
would be labor-intensive, costly, and impractical to maintain.
Moreover, we believe that creating and maintaining a privilege-granting
system would require substantial government and/or industry resources,
and commenters were generally unwilling to pay fees that would be
necessary to create and maintain such a system.
One commenter requested information on how vessels operating
outside of available wireless Internet access zones would download
necessary CCL updates. We wish to clarify that there would be no
obligation to download updated CCL information when there are no new
individuals seeking access to secure areas. For example, a vessel
designated as a secure area that is underway for an extended period of
time with the same crew would not need to download updated CCL
information if card validity was properly confirmed when the TWIC-
holders boarded the vessel. We request additional comments from the
public regarding practical scenarios in which a vessel might not be
able to download necessary CCL updates within the prescribed frequency
(weekly or daily, depending on MARSEC Level). Additionally, we request
comments from the public regarding the regulatory requirements that we
should put in place when vessels are in one of those scenarios. One
possibility would be to continue to require the use of TWIC readers for
identity verification, card authentication, and card validity, even
though the CCL might not have been updated within the prescribed
frequency. This would electronically confirm that the TWIC has not
expired, and also confirm no match against the most recently downloaded
version of the CCL. The owner or operator would be required to update
the CCL at the next available opportunity. We request comments from the
public on this proposal or any preferred alternatives we should
consider.
One commenter requested guidance on the obligations an employer
might have if notified by TSA that a former employee's TWIC has been
revoked. We wish to clarify that generally, no such notification would
be forthcoming. We note, as mentioned above, that TSA requires all TWIC
applicants to acknowledge that TSA may notify employers and facility
owners and operators if there is an imminent threat of risk to
individuals or property. In those scenarios, TSA would provide
appropriate case-specific guidance to the employer at the time of any
such TSA notification.
Several commenters requested additional general guidance on any
proposed requirements to perform card validation using CCL information.
We will consider whether and how to issue additional guidance, as
necessary.
f. PIN Usage
Approximately 30 commenters agreed with the ANPRM's approach that
TWIC-holders should not be required to input their PINs in order to be
granted access to secure areas. Among the reasons commenters cited in
opposing a PIN requirement were: intermittent use makes PINs hard to
remember; difficulty of retrieving forgotten PINs; throughput delays
and other disruptions; and lack of an appreciable security benefit once
a biometric match has been established.
In the ANPRM, we recognized the operational and environmental
challenges that a PIN requirement would present. The TWIC Pilot also
noted that since many TWIC-holders had rarely, if ever, used their PINs
since activating their TWICs, some workers could not remember their
PINs. These individuals were then required to visit a TWIC enrollment
center to reset their PINs. The TWIC Pilot also noted that inputting
the PIN is not necessary to conduct a biometric match. Consistent with
the comments and TWIC Pilot findings, this NPRM does not propose a
requirement that TWIC-holders enter their PINs in order to access
secure areas.
Several commenters also requested that PINs not be required during
Coast Guard spot checks and inspections. We note that such a proposal
was not included in the ANPRM. Existing regulation already requires
mariners to provide their PINs to Coast Guard personnel upon
request.\50\ For example, when a mariner's fingerprints cannot be read
using a TWIC reader, Coast Guard personnel may require the mariner to
provide the PIN. To account for this and other instances when a
mariner's identity cannot be verified by means other than the TWIC and
PIN, we are retaining the existing provision that requires mariners to
provide PIN information to Coast Guard personnel upon request.
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\50\ See 33 CFR 101.515(d)(2).
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Some commenters acknowledged that PIN verification may be useful in
certain circumstances, and that there are certain advantages associated
with PINs. One commenter noted that PIN usage would be a viable
alternative when fingerprint matching is not possible. We agree with
this comment and have addressed this issue below in section IV.F.
``TWIC Inspection Requirements in Special Circumstances.''
Another commenter suggested that TWIC readers designed to only
check PINs might be less expensive than TWIC readers that perform other
functions. We believe that the operational and environmental challenges
presented by a PIN requirement outweigh this possible cost advantage.
One commenter stated that PINs are another line of defense against
forged TWICs. We agree with this comment, but do not believe it
warrants a PIN requirement. Although this NPRM does not propose to
require PIN verification, owners and operators may choose to impose
their own PIN verification requirement on individuals before granting
them access to secure areas.
Finally, several commenters requested that we implement a more
widely available and accessible system for resetting forgotten PINs.
This comment relates to TSA's procedures for resetting PINs. We have
provided these comments to TSA for their consideration. TSA currently
protects PINs by securely locking them on the card as required by the
Federal Information Processing Standards 201-1 (FIPS 201). PIN reset
requires virtual private network (VPN) access to the
[[Page 17800]]
TWIC system available only at TWIC enrollment centers. TSA is looking
at possible alternatives and updates to the current PIN reset policy.
4. Utility of TWIC Readers in Reducing TSI Vulnerability
Many commenters acknowledged the utility of the TWIC program in
reducing TSI vulnerability, though they expressed differing opinions on
the utility of TWIC readers in that regard. Some asserted that TWIC
readers would not reduce risks, especially on small vessels where
crewmembers are familiar with one another, and on vessels where
restricted areas are already protected by other access control
mechanisms. Several of these commenters expressed the opinion that TWIC
effectively reduces risk insofar as personnel are required to complete
a rigorous security threat assessment in order to obtain a TWIC; yet,
they believe that TWIC readers would provide no additional risk
reduction benefit. Although one of these commenters acknowledged the
potential utility of TWIC readers at large facilities and on large
vessels, this group of commenters generally opposed all of the proposed
TWIC reader requirements.
Other commenters took the opposite view. Several argued that the
TWIC's security benefits would only be realized through the institution
of a standard requirement to use TWIC readers at all MTSA-regulated
vessels and facilities. One point emphasized by this group of
commenters is that visual inspection as a means of identity
verification would not effectively detect counterfeit TWICs.
One commenter favored an approach in which TWIC readers are used in
addition to--not in place of--visual comparison of the TWIC-holder to
the photograph on the TWIC. Another commenter favored an approach in
which owners and operators would be required to conduct random
electronic biometric matches using a TWIC reader, as opposed to using a
TWIC reader each time an individual accesses secure areas. Finally, one
commenter suggested that we include an option that would allow owners
and operators to schedule periodic Coast Guard visits for the purpose
of conducting comprehensive inspections using the Coast Guard's
portable TWIC readers.
The wide ranging nature of these comments demonstrates the need for
an analysis of the impacts of TWIC reader requirements in the maritime
sector. Similarly, Congress had also mandated a thorough analysis of
TWIC reader utility in the SAFE Port Act by requiring the Secretary to
`` * * * conduct a pilot program to test the business processes,
technology, and operational impacts required to deploy * * * [TWIC]
readers at secure areas of the maritime transportation system.'' \51\
At the time we published the ANPRM and received the comments above, TSA
had not yet completed data collection for the TWIC Pilot. TSA completed
data collection for the TWIC Pilot on May 31, 2011. In accordance with
the SAFE Port Act, we crafted the proposals in this NPRM in a manner
consistent with the findings of the TWIC Pilot.\52\
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\51\ 46 U.S.C. 70105(k).
\52\ 46 U.S.C. 70105(k).
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The TWIC Pilot was designed to assess, among other things, the
utility of TWIC readers in enhancing security. The TWIC Pilot found
that when designed, installed, and operated in a manner consistent with
the business considerations of the vessel or facility, TWIC readers
enhance security by reducing the risk that an unauthorized individual
could gain access to secure areas. The TWIC Pilot also found that TWIC
readers enhance security by enabling owners and operators to assign
secure area access privileges to a limited population of TWIC-holders.
The proposals in this NPRM to require TWIC readers are consistent with
the findings of the TWIC Pilot and were developed to reduce TSI
vulnerability at MTSA-regulated facilities and vessels.
5. TWIC Reader Requirements on Vessels
Many commenters expressed opposition to any requirement for TWIC
readers on vessels. These commenters argued that TWIC readers on
vessels would be expensive, impractical, ineffective in enhancing
security, and would put U.S.-flagged vessels at a competitive
disadvantage relative to foreign-flagged vessels that can operate
without TWIC readers. Instead, these commenters favored using TWIC as a
visual identity badge on vessels. They argued that the greatest value
of the TWIC program is not as an access control device, but rather as a
reliable, standardized means to establish the identity and background
of new employees. The commenters emphasized that TWIC readers would
likely cause logistical problems, and would be unnecessary on vessels
in which crew size is relatively small, because crewmembers are
familiar with one another. Finally, the commenters believed that TWIC
readers are unnecessary on vessels because, in most cases, TWIC-holders
accessing vessels have already had their TWICs checked using a TWIC
reader at shore-side facilities and during Coast Guard inspections.
One commenter felt that there might be limited utility to TWIC
readers on vessels. Another commenter proposed an alternative approach
that would require vessel owners and operators to specify a certain
percentage of individuals on board for random biometric matches using a
TWIC reader.
As mentioned previously, we rely on the TWIC Pilot's finding that
TWIC readers enhance security when used properly. Additionally, we
recognize that many of the commenters arguing against the proposed
requirement for TWIC readers on vessels expressed the interest of
owners and operators of vessels in Risk Group B. After considering the
public comments and additional analysis, we have eliminated from this
NPRM the proposal to require TWIC readers on vessels in Risk Group B.
As discussed more fully below in Section IV., ``Section-by-Section
Description of Proposed Rule,'' this NPRM proposes TWIC reader
requirements for vessels in Risk Group A only. Moreover, this NPRM
proposes to exempt from TWIC reader requirements all vessels with 14 or
fewer TWIC-holding crewmembers. These measures should alleviate most of
the concerns raised by commenters with respect to the costs and
logistics of TWIC readers on vessels and on the limits for utility on
vessels with 14 or fewer crewmembers.
Some commenters expressed the opinion that on small vessels, even a
requirement to use the TWIC as a visual identity badge is an
unnecessary burden that would confer little or no security benefit. We
disagree with this comment. A security benefit is conferred when a
vessel owner or operator is able to confirm that each entrant to a
secure area holds a TWIC.
One commenter requested clarification as to whether a vessel owner
or operator would be required to check TWICs electronically on days the
vessel does not sail. We wish to clarify that TWIC reader requirements
are triggered when individuals are granted access to secure areas,
regardless of whether a vessel sails.
6. TWIC Reader Requirements for Risk Group A
a. Risk Group A Classification
Two commenters questioned why Risk Group A includes facilities that
handle bulk CDC, but does not include facilities that handle non-bulk
Division 1.1 or 1.2 explosives. We reiterate that based on the AHP/
MSRAM data and analysis, facilities that handle non-bulk
[[Page 17801]]
substances did not warrant placement in Risk Group A. Such facilities
generated lower AHP scores because unlike bulk CDC, Division 1.1 or 1.2
explosives are segregated and kept in smaller quantities.
b. Risk Group A TWIC Reader Requirements
Six commenters representing owners and operators of large vessels
or facilities expressed general concerns that the ANPRM's proposed TWIC
reader requirements would present significant operational challenges.
Another commenter stated that it would be burdensome if TWIC readers
had to be manually updated to keep CCL information current.
In considering these comments, we note that the TWIC Pilot elicited
a variety of lessons learned with respect to the operational impacts of
deploying TWIC readers in the maritime sector. The TWIC Pilot generally
found that when TWIC readers are designed, installed, and operated in a
manner consistent with the business considerations of the vessel or
facility, they function properly.
We believe that the proposals in this NPRM appropriately consider
the findings of the TWIC Pilot and implement the TWIC reader
requirements mandated by MTSA and the SAFE Port Act in a manner that
enhances the nation's maritime security without imposing undue burdens.
More information on the economic analysis for this proposed rule is
provided below in Section V. ``Regulatory Analyses.''
We also note that in the TWIC 1 Final Rule, we revised 33 CFR
105.115 to permit owners and operators to redefine their ``secure
area'' as only that portion of their access control area that is
directly related to maritime transportation. This revision was intended
to provide greater flexibility to facility owners and operators in
dealing with the operational impacts of implementing the TWIC program
at each individual facility. Additionally, as discussed above, we are
also considering allowing multiple risk group designations within one
facility, to account for situations where one portion of a facility
handles dangerous cargoes and another portion does not.
7. TWIC Reader Requirements for Risk Group B
a. Risk Group B Classification
Numerous commenters expressed the opinion that Risk Group B is
over-inclusive in terms of the types of vessels and facilities covered.
Many argued that OCS facilities subject to 33 CFR part 106 do not
present risks that warrant placement in Risk Group B.
Two commenters argued that tank vessels as defined in 33 CFR
Subchapter D should not be placed in Risk Group B. One commenter
suggested that with respect to crewmembers on Subchapter D vessels, the
only requirement to scan their TWICs using a TWIC reader should be upon
initial hiring at the employer's home office.
One commenter whose vessel is licensed for 800 passengers and
carries a crew of six argued that TWIC reader requirements would be a
financial burden that provides no appreciable security benefit. In
response, we note that in this NPRM, we do not propose to require TWIC
readers for Risk Group B.
One commenter argued that facilities handling no hazardous
materials other than asphalt cement do not present risks that warrant
placement in Risk Group B. The commenter requested that we specifically
exclude from Risk Group B facilities that handle products designated as
hazardous only due to storage and handling at elevated temperatures.
Two commenters suggested that for purposes of this rule, the term
``hazardous materials'' should not be defined by reference to 49 CFR
172. One of these commenters argued that this definition would cover
many products that present little or no risks. Instead, the commenter
suggested that we adopt the definition of ``hazardous materials'' used
by TSA and/or the Pipeline and Hazardous Materials Safety
Administration.
We wish to clarify that the term ``hazardous materials'' is defined
in 33 CFR part 101.105 as those materials subject to regulation under
46 CFR parts 148, 150, 151, 153, or 154, or 49 CFR parts 171 through
180. We believe that the types of vessels and facilities referenced in
the comments above are appropriately placed in Risk Group B based on
the AHP/MSRAM analysis. We further believe that the comments above
seeking re-classification out of Risk Group B resulted from the ANPRM's
proposal to require TWIC readers for Risk Group B. We reiterate that,
based on the comments and additional analysis, this NPRM does not
propose TWIC reader requirements for Risk Group B.
b. Risk Group B TWIC Reader Requirements
One commenter believed that the ANPRM's proposed requirements for
Risk Group B are appropriate. Another commenter argued that identity
verification upon each entry to a secure area would be too burdensome.
Another commenter argued that the proposed TWIC reader requirements in
the ANPRM for Risk Group B at MARSEC Level 2 would be too burdensome.
Finally, two commenters argued that, as a general matter, the ANPRM's
proposals are too burdensome because they would require vessels and
facilities in Risk Group B to have both a TWIC reader and a security
guard to visually inspect TWICs as well.
Several commenters argued that the ANPRM's requirement for Risk
Group B to conduct random monthly scans using a TWIC reader would be
costly and provide minimal security benefits, especially if done on a
low volume or non-work day. Other commenters requested clarification as
to whether the ANPRM's approach would require monthly scans on all
TWIC-holders associated with a vessel or facility, or only on the TWIC-
holders visiting the vessel or facility on a specific day.
Several commenters proposed alternative TWIC requirements for Risk
Group B. Some suggested approaches that rely less on TWIC readers than
did the ANPRM's approach. For example, two commenters suggested
requiring only visual TWIC checks for identity verification, card
authentication, and card validation as a routine matter at MARSEC Level
1. Thus, scans using a TWIC reader would only be required once per
month at MARSEC Level 1, but would remain a standard procedure at
higher MARSEC Levels. Another commenter suggested that card validity
checks should be required on small vessels less frequently than as
proposed in the ANPRM. Two commenters opposed the ANPRM's requirement
to perform monthly scans using a TWIC reader at MARSEC Level 1.
Other commenters suggested alternative approaches that rely more on
TWIC readers than did the ANPRM's approach. For example, several
commenters suggested that owners and operators of vessels or facilities
in Risk Group B should always be required to use TWIC readers to
perform identity verification, arguing that visual checks are less
reliable. Some of these commenters argued that unlike random monthly
scans using a TWIC reader, routine use of TWIC readers would provide
TWIC-holders the benefit of a consistent user experience.
Based on the comments and further analysis, this NPRM does not
propose TWIC reader requirements for Risk Group B. We have estimated
the annualized cost of the TWIC reader requirements on vessels and
facilities in Risk Group A at $26.5 million, at a 7 percent discount
rate. Had we proposed TWIC reader requirements to also
[[Page 17802]]
include Risk Group B facilities, the annualized cost would be $141.2
million, at a 7 percent discount rate. Moreover, including Risk Group B
in the TWIC reader requirements would not only increase the annualized
cost, the average consequence figure (the monetized costs of fatalities
and injuries resulting from a TSI) drops by more than one-third. While
this does not mean that there should be no TWIC reader requirements for
Risk Group B, we believe this analysis supports our phased approach for
requiring TWIC readers first for Risk Group A.
We also wish to emphasize the utility of TWIC in enhancing security
even when not used in conjunction with TWIC readers. Before mariners
and other individuals were required to obtain a TWIC, they could access
secure areas of MTSA-regulated vessels and facilities after presenting
a State-issued driver's license or any number of other government-
issued identification cards. This patchwork system of valid credentials
required security personnel to become familiar with the appearance and
security features of every type of acceptable credential. Moreover,
since some government-issued credentials are used for purposes other
than security, applicants are not necessarily screened from a security
threat perspective. Additionally, the eligibility criteria for some
government-issued credentials do not preclude issuance to an individual
with a felony criminal record.
The TWIC program mitigates the above shortcomings. Since April 15,
2009, TWIC has been the single credential used throughout the maritime
sector. Accordingly, security personnel only need to become familiar
with the appearance and security features of one credential. Moreover,
unlike other government-issued credentials, TWIC is specifically
designed for transportation security. Its purpose is to ensure a vetted
maritime workforce by establishing security-related eligibility
criteria, and by requiring each TWIC-holder to undergo TSA's security
threat assessment as part of the process of applying for and obtaining
a TWIC.
As we go forward with our phased approach to implementing TWIC
reader requirements, we will continue to evaluate the use of TWIC
readers on vessels and at facilities, and determine the need for
additional or different TWIC reader requirements. Proposing
requirements for Risk Group A only in this NPRM is indicative of our
desire to minimize highest risks first, but should not be read to
foreclose revised TWIC reader requirements in the future.
Several commenters argued that container (cargo) facilities present
risks that actually warrant the more stringent TWIC reader requirements
of Risk Group A rather than those of Risk Group B. In response, we note
that, based on the AHP/MSRAM analysis, being a container facility alone
did not automatically cause a facility to be categorized in Risk Group
B. In addition, several factors led the Coast Guard to decide not to
require TWIC readers for most of these facilities at this time. First,
there are limits on the additional risk reduction (above and beyond the
credentialing and visual identification purposes of the TWIC itself) of
TWIC readers at container facilities. Security risk in the maritime
sector can be considered as following one of three high-level
scenarios: (1) The asset in question could be the target of an attack;
(2) the asset in question could be used as a weapon for an attack; or
(3) the asset could be used to enable or facilitate an attack
elsewhere. For container facilities, the first scenario brings low risk
given the number of personnel concentrated and exposed to an attack and
limited storage of hazardous materials. Similarly, the second scenario
brings low risk as containers bring low risk of use as a weapon.
Furthermore, the use of TWIC readers, or other access control features,
would not mitigate the threat associated with the contents of a
container. The TWIC reader serves as an additional access control
measure, but would not improve screening of cargoes for dangerous
substances or devices. The third scenario is the primary risk driver
for container facilities, with the risk of containers used to smuggle
illicit materials and/or personnel into the country. The additional
verifications provided by TWIC readers, however, would bring limited
utility to this scenario. Those individuals looking to access the
contents of the container could do so after the container exits the
secured area. As such, TWIC readers bring limited additional risk
reduction over the TWIC itself. Additionally, requiring TWIC readers at
container facilities brings significant costs, as these facilities
typically have a higher number of access points per facility (and
therefore would incur more capital costs) and higher numbers of
personnel accessing the facility. While the additional time to use the
TWIC reader to conduct a biometric match over the visual inspection is
limited on an individual basis, the high volume of workers could cause
the associated delay costs to accrue to much more significant levels
than other facility types. Given the large numbers of truck drivers
accessing these facilities, these delays would also be accompanied by
increased air emissions, resulting in greater potential for
environmental impact. Therefore, in this NPRM, only those container
facilities that are otherwise categorized in Risk Group A would be
required to use TWIC readers. We will continue to assess whether
container facilities warrant additional consideration with respect to
TWIC reader requirements. We welcome additional comments from the
public on the risk group classification of container facilities.
8. TWIC Requirements for Risk Group C
a. Risk Group C Classification
One commenter supported the ANPRM's classification of OSVs in Risk
Group C. One commenter suggested that the passenger cutoff number for
vessels in Risk Group C should not be 500. Instead, this commenter
argued that the cutoff number should be 49 overnight passengers or 150
passengers, similar to the Coast Guard's vessel safety regulations. In
response, we reiterate that the AHP/MSRAM analysis considered factors
based on TSI consequence. These factors are different than the factors
that underpin the Coast Guard's safety regulations. The passenger
cutoff numbers derived from the AHP/MSRAM analysis are more appropriate
for defining the risk-based framework for TWIC reader requirements.
b. Risk Group C TWIC Requirements
Many commenters agreed with the ANPRM's approach that TWIC reader
requirements would not appreciably enhance security for vessels and
facilities in Risk Group C. One commenter further argued that since
vessels and facilities in Risk Group C are so low risk, even visual
TWIC inspections would be an unnecessary burden that would confer no
security benefit. As noted above, however, several commenters took the
opposing view, broadly asserting that owners and operators of all MTSA-
regulated vessels and facilities (including those in Risk Group C)
should be required to use TWIC readers to control access to secure
areas.
We believe that although vessels and facilities in Risk Group C
present a less likely target for individuals wishing to do harm, these
vessels and facilities still hold the potential of being involved in a
TSI and with consequences that could still be significant. A security
benefit is conferred when an owner or operator is able to confirm that
each entrant to secure areas holds a TWIC, as the TWIC serves as
evidence that the person has
[[Page 17803]]
successfully passed TSA's security threat assessment. Accordingly, this
NPRM proposes the same requirements as the ANPRM for Risk Group C,
which includes requirements to visually inspect TWICs before granting
unescorted access to secure areas, as is already required in the
current regulations.
Some commenters asked whether vessels and facilities in Risk Group
C would need dedicated security guards to perform visual TWIC checks,
and what credentials these security guards would need to possess. Under
current regulations (which would not change under this NPRM) for
vessels and facilities categorized in this NPRM as Risk Group C,
security personnel must visually inspect the TWIC of each person
seeking unescorted access to secure areas. Our regulations do not
require the use of ``dedicated security guards,'' but do require that
the security personnel doing visual inspection of TWICs have certain
knowledge, training, and experience. It is important for owners,
operators, and others with security duties to be familiar with the
technologies embedded in the TWIC, particularly the features that make
the TWIC resistant to tampering and forgery. Those who would be
examining TWICs at access control points should be familiar enough with
the TWIC's physical appearance so that variations or alterations are
easily recognized. Relevant security training requirements for
personnel on vessels and at facilities are found at 33 CFR 104.210,
104.215, 104.220, 104.225, 105.205, 105.210, 105.215, 106.205, 106.210,
106.215, and 106.220.
9. Physical Placement of TWIC Readers
Eight commenters requested clarification as to whether TWIC readers
would be required at the access points to each secure area or at the
perimeter access points to the vessel or facility. Three commenters
suggested that vessels should not be required to place TWIC readers at
every access point to a secure area. Instead, according to these
commenters, vessels required to have TWIC readers should only be
required to place them at the main access points to the vessels.
Several commenters expressed concerns that if TWIC readers are required
at the access points to each secure area on vessels, safety would be
compromised in emergency situations when crewmembers need immediate
access to those areas.
We wish to clarify that for both vessels and facilities, the term
``secure area'' is defined as ``* * * the area * * * over which the
owner/operator has implemented security measures for access control * *
*. It does not include passenger access areas, employee access areas,
or public access areas * * *.'' \53\ For facilities, the secure area
may encompass the entire facility, or the facility may consist of a
combination of secure areas and public access areas. Similarly, for
vessels, the secure area may encompass the entire vessel, or the vessel
may consist of a combination of secure areas and passenger and employee
access areas.
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\53\ 33 CFR 101.105.
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This NPRM proposes different requirements for vessels and
facilities with respect to the placement of TWIC readers. For
facilities, this NPRM proposes to require TWIC readers at the access
points to each secure area. If the entire facility is designated as a
secure area, then TWIC readers would only be required at the access
points to the facility itself. If the secure area does not encompass
the entire facility, then TWIC readers would be required at the access
points to each secure area.
For vessels, this NPRM proposes to require TWIC readers at the
access points to the vessel itself, regardless of whether the secure
area encompasses the entire vessel. Thus, even if the secure area does
not encompass the entire vessel (e.g., a passenger vessel consisting of
secure areas and passenger and employee access areas), TWIC readers
would only be required at the access points to the vessel itself. TWIC-
holders may be granted unescorted access to the vessel's secure areas
after the TWIC has been verified, validated, and authenticated at a
vessel access control point. TWIC-holders may then move between secure
areas and passenger and employee access areas without processing
through a TWIC reader each time. We request additional comments from
the public on the proposed regulatory provisions regarding the
placement of TWIC readers for vessels and facilities, and how to
minimize crewmembers from entering secure and/or restricted areas if
they do not hold a TWIC.
With respect to emergency situations, we partially addressed this
issue in the TWIC 1 Final Rule, and added a paragraph to 33 CFR 101.514
clarifying that emergency personnel need not have TWICs to obtain
unescorted access to secure areas during emergencies. Moreover, this
NPRM does not propose to require TWIC readers on vessels at each access
point to a secure area. Instead, TWIC readers would only be required at
the access points to the vessel itself.
One commenter suggested that with respect to OCS facilities, the
appropriate location for TWIC reader placement is not on the facility
itself, but, rather, at the shore-side points of embarkation for the
facility. This comment echoes a recommendation from NMSAC in the TWIC 1
NPRM,\54\ to which we responded that OCS facilities where access is
limited and can be controlled by reading the TWIC at the point of
embarkation may continue to do so. Note that this NPRM does not propose
TWIC reader requirements for any OCS facilities. Accordingly, OCS
facilities where access is limited and can be controlled by visually
inspecting the TWIC at the point of embarkation may do so.
---------------------------------------------------------------------------
\54\ See 71 FR 29405.
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One commenter suggested that owners and operators of facilities
should not be required to use TWIC readers on docks and other waterside
access points. In response, we emphasize that we are not proposing a
blanket exemption from TWIC reader requirements on docks and other
waterside access points. As proposed in this NPRM, owners and operators
of facilities in Risk Group A would be required to ensure that access
to secure areas is limited to individuals whose TWICs have been scanned
by a TWIC reader.
We also note that in the TWIC 1 Final Rule, we revised 33 CFR
105.115 to provide greater flexibility to facility owners and operators
by allowing them the option to redefine their ``secure area'' as only
that portion of their access control area that is directly related to
maritime transportation. Thus, facilities whose footprint includes
portions that are not directly related to maritime transportation can
submit an FSP for Coast Guard approval that removes those areas from
the definition of the facility's ``secure area'' for Coast Guard
regulatory purposes. Such facilities would typically include
refineries, chemical plants, factories, mills, power plants, smelting
operations, or recreational boat marinas. As discussed above, we are
also considering allowing multiple risk group designations within one
facility, to account for situations where one portion of a facility
handles dangerous cargoes and another portion does not. Owners and
operators should comply with TWIC reader requirements in a manner that
considers the specific nature of their facilities and their access
points, and they may take advantage of regulatory provisions that would
minimize the impact on operations.
10. Recurring Unescorted Access
Numerous commenters generally supported the ANPRM's provision
[[Page 17804]]
regarding RUA as a means of providing relief to owners and operators
otherwise required to use TWIC readers. Many of these commenters
expressed differing opinions regarding the proposed cutoff number of
14. Six commenters stated that 14 is an appropriate cutoff number. More
than 25 commenters felt that the cutoff number should be higher. One
commenter felt that the cutoff number should be lower. Several
commenters argued that 14 is an arbitrary cutoff number, though they
offered no rationale or alternative cutoff number. Five commenters
suggested that the cutoff number should be approved by the COTP on a
case-by-case basis, considering factors such as an entity's size and
whether a vessel operates with multiple crews.
Several commenters requested clarification regarding whether an
entity could grant RUA privileges to contractors, vendors, and other
frequent visitors.
Approximately eight commenters opposed the ANPRM's RUA proposal,
suggesting instead that we should simply exempt all vessels with fewer
than 14 TWIC-holders on board from TWIC reader requirements. One
commenter noted that such an exemption would fall squarely within the
SAFE Port Act's provision that prohibits requiring TWIC readers on
vessels that the Secretary has determined do not have the requisite
number of TWIC-holders as crewmembers.\55\
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\55\ 46 U.S.C. 70105(m)(1).
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Two commenters argued that RUA would compromise security by
granting unescorted access to secure areas without requiring
individuals to undergo screening using a TWIC reader.
One commenter felt the phrase ``recurring unescorted access'' could
be misinterpreted to mean that an individual may require an escort to
access a secure area, even if the individual is a TWIC-holder.
Several commenters opposed a requirement to perform the initial
biometric scan using a TWIC reader on TWIC-holders granted RUA. Their
rationale was that TSA already performs reliable biometric identity
verification prior to the issuance of each individual's TWIC. Some
commenters also raised concerns of potential fraud that could arise if,
as suggested in the ANPRM, an owner or operator pursued an agreement
with a facility or other company to borrow or otherwise have access to
a TWIC reader in order to perform the one-time initial biometric
verification.
One commenter felt that the proposed initial biometric scan
requirement would be appropriate. Another commenter felt that owners
and operators should be required to perform an electronic biometric
scan using a TWIC reader at the beginning of each shift for each TWIC-
holder granted RUA.
Three commenters argued that owners and operators granting RUA
privileges should not be required to purchase a TWIC reader to perform
initial biometric scans on RUA grantees. Two commenters suggested that
an Internet-based system would provide the most practical method for
keeping track of RUA grantees.
One commenter called attention to the fact that employee records
regarding individuals granted RUA would be kept by the employer, not
the Coast Guard or TSA.
After considering the comments and further analysis discussed below
in Section IV., ``Section-by-Section Description of Proposed Rule,'' we
have removed from this NPRM the RUA provisions proposed in the ANPRM.
RUA was previously proposed to introduce flexibility and provide relief
to vessels otherwise required to use TWIC readers, based on the
familiarity that exists between a relatively small number of
crewmembers. This NPRM incorporates two important proposals, however,
that render RUA an unnecessary provision. First, unlike the ANPRM,
which proposed TWIC reader requirements for Risk Groups A and B, this
NPRM proposes TWIC reader requirements for Risk Group A only. Second,
this NPRM proposes a broad exemption from TWIC reader requirements for
all vessels with 14 or fewer TWIC-holding crewmembers. This exemption
is based on the SAFE Port Act's provision that prohibits requiring TWIC
readers on vessels that the Secretary has determined do not have the
requisite number of TWIC-holders as crewmembers.\56\ These two changes
render the need for RUA as a mechanism for regulatory relief
unnecessary.
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\56\ 46 U.S.C. 70105(m)(1).
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11. TWIC Reader Durability, Safety, Approval, Calibration, and
Compliance
Four commenters expressed concerns that harsh weather and other
physical stresses on vessels and at facilities would likely cause TWIC
readers to fail or otherwise become damaged. One commenter countered
that TWIC readers have already been subjected to environmental testing,
and have proven to function well in the marine environment.
The TWIC Pilot found that at varying locations, some TWIC readers
experienced difficulty scanning fingerprints in inclement weather.
Certain types of TWIC readers withstood harsh weather conditions,
whereas others were found to be sensitive to those conditions.
Throughout the TWIC Pilot, the conditions under which TWIC readers had
to perform were significantly more challenging than those commonly
found at entrances to office buildings and other more controlled
locations and environments. The TWIC Pilot, however, noted that most of
the challenges associated with weather can be overcome with proper
planning that takes environmental conditions into consideration.\57\
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\57\ See page vii of the TWIC Pilot Report. (A copy of the TWIC
Pilot Report is available for viewing in the public docket for this
rulemaking.)
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One commenter requested that we consider the safety concerns of
using TWIC readers in areas where flammable materials are stored or
transferred. We agree that safety concerns are of the utmost
importance, and expect that owners and operators who carry or handle
flammable materials would comply with applicable TWIC reader
requirements in a manner that does not compromise safety.
One commenter stated that TWIC readers must be able to process
biometric scans in 3 seconds or less in order to minimize the impact of
TWIC reader requirements at facilities with large numbers of entrants.
Several commenters stated that we should establish a minimum standard
for errors in connection with TWIC reader technology. We have passed
these comments to TSA for consideration in future planning. TSA has
established the TWIC reader specifications and Qualified Technology
List process (described later in this section) to validate that TWIC
readers meet the specifications. In addition, TSA is conducting a card
error/failure analysis to identify and address TWIC reader and card
failures. There is additional information on TWIC reader throughput in
the TWIC Pilot report, which is available in the public docket for this
rulemaking.
As discussed in the ANPRM, TWIC readers are considered ``security
systems and equipment,'' and therefore, existing regulatory provisions
applicable to security systems and equipment maintenance would require
that TWIC readers be inspected, tested, calibrated, and maintained in
accordance with the manufacturers'
[[Page 17805]]
recommendations.\58\ Additionally, records of such actions would be
required to be maintained for at least 2 years and made available to
the Coast Guard upon request.\59\ The ANPRM sought public comment on
whether TWIC readers should also be subject to additional Coast Guard
inspections and/or third party audits to further ensure that TWIC
readers are maintained in proper working order.
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\58\ See 33 CFR 104.260 and 105.250.
\59\ See 33 CFR 104.235 and 105.225.
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Two commenters favored both additional Coast Guard inspections and
third-party audits to check that TWIC readers are maintained in proper
working order. Ten commenters opposed third-party audits, and suggested
that the Coast Guard should conduct compliance inspections. Six
commenters favored neither Coast Guard inspections nor third-party
audits, arguing that owners and operators are already required to
maintain security equipment maintenance logs, which can be reviewed by
the Coast Guard to make compliance determinations. We note that 33 CFR
104.260 and 105.250 already require security systems (which would
include TWIC readers) to be in good working order and inspected,
tested, calibrated, and maintained according to the manufacturer's
recommendation. These existing regulatory provisions also require
owners and operators to maintain records of the results of such testing
for 2 years. Additionally, Coast Guard field inspectors would inspect
TWIC reader functionality as part of regularly occurring inspections.
We agree with the majority of commenters above that appreciable value
would not be added by requiring additional Coast Guard inspections and/
or third party audits beyond the existing provisions on security
systems and equipment maintenance. Therefore, this NPRM does not
propose additional Coast Guard inspections and/or third party audits.
One commenter generally requested guidance regarding how owners and
operators may voluntarily use TWIC readers before we publish a TWIC
reader final rule. On March 15, 2011, we published a notice announcing
the availability of Policy Advisory Council Decision (PAC-D) 01-11,
``Voluntary Use of TWIC Readers,'' \60\ providing guidance on how
owners and operators may use TWIC readers to meet existing regulatory
requirements. Navigation and Vessel Inspection Circular (NVIC) 03-07
\61\ provides additional guidance to the public on this issue.
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\60\ Policy Advisory Council Decision 01-11, ``Voluntary Use of
TWIC Readers,'' available for viewing at https://homeport.uscg.mil/.
\61\ See Navigation and Vessel Inspection Circular (NVIC) No.
03-07, ``Guidance for the Implementation of the Transportation
Worker Identification Credential (TWIC) Program in the Maritime
Sector,'' (July 2, 2007).
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Five commenters requested that we immediately publish a list of
TWIC reader specifications, or a list of acceptable TWIC reader
vendors, so that owners and operators wishing to use Federal grant
money to purchase equipment can do so before we publish a TWIC reader
final rule. Another commenter cautioned that such an approach may not
be advisable because TWIC reader technology is still evolving.
PAC-D 01-11 provides guidance on how owners and operators of
vessels or facilities can use TWIC readers to meet existing regulatory
requirements for effective identity verification, card validity, and
card authentication. A list of TWIC readers that have passed the
Initial Capability Evaluation (ICE) Test is available at http://www.tsa.gov/assets/pdf/twic_ice_list.pdf. As stated in PAC-D 01-11,
however, TWIC readers allowed pursuant to PAC-D 01-11 may no longer be
valid after promulgation of a TWIC reader final rule, and DHS will not
fund replacement TWIC readers.
The Department of Commerce's National Institute of Standards and
Technology (NIST) and TSA are developing TWIC reader specifications.
TSA will establish a process to qualify TWIC readers, and will maintain
a Qualified Technology List (QTL) of acceptable TWIC readers. We
anticipate that there may be changes from the ICE Test list to the QTL
list, based on final TWIC reader specifications resulting from the QTL
process.
12. TWIC Pilot and HSI Report
Seven commenters expressed confidence that the TWIC Pilot would
yield important information that should inform this NPRM, including
information regarding TWIC reader error rates, transaction times,
durability in extreme weather conditions, and TWIC integration with an
existing PACS. Two commenters requested that the TWIC Pilot include
additional ports. The Merchant Marine Personnel Advisory Committee
(MERPAC) recommended that the TWIC Pilot should include a sufficient
number of vessels in appropriately diverse operating areas to test TWIC
reader technology, operating conditions, and procedures.
TSA completed data collection for the TWIC Pilot on May 31, 2011.
The TWIC Pilot gathered data from pilot sites regarding TWIC reader
performance and reliability as well as throughput data at vehicle and
pedestrian access points, which was instrumental in evaluating the
impact of TWIC reader use on vessel and facility operations. Although
the SAFE Port Act required the pilot program to take place at not fewer
than five distinct geographic locations, the program actually took
place in seven geographic locations to allow for the evaluation of TWIC
reader functionality and impacts across a variety of environmental and
operational conditions. The TWIC Pilot report provides a list of the
TWIC Pilot participants.
Two commenters urged us to consider the final HSI Report in
crafting the NPRM. We acknowledge that the HSI Report has provided
useful insights and information that have informed the proposals in
this NPRM.
A summary of both the TWIC Pilot and HSI Report recommendations are
provided below in Sections III.F. ``TWIC Reader Pilot Program'' and
III.G., ``HSI Report,'' respectively. A copy of the TWIC Pilot Report
is available for viewing in the public docket for this rulemaking. A
non-SSI version of the HSI Report is available for viewing in the
public docket for this rulemaking.
13. Security Plan Amendment
Two commenters requested that the revisions to security plans
resulting from this NPRM should be as minimal as possible. We believe
the proposals in this NPRM are consistent with that request.
Six commenters generally supported the ANPRM's proposal to require
amendments to security plans within 6 months after we publish a final
TWIC reader rule. Three commenters felt that the ANPRM's proposed
deadline of 6 months is too short. One commenter requested a 9-month
deadline. Five commenters requested at least a 1-year deadline. One
commenter suggested staggered deadlines of 24 months, 18 months, and 12
months for Risk Groups A, B, and C, respectively. Six commenters
requested staggered deadlines based on the expiration dates of existing
security plans. Two commenters suggested that each security plan
amendment deadline should be determined on a case-by-case basis.
Another commenter suggested that requirements to amend security plans
should apply once we have classified each vessel and facility into its
risk group.
In light of the comments and further analysis, this NPRM would
extend the proposed deadline for security plan updates. Owners and
operators would
[[Page 17806]]
be required to amend security plans to include TWIC requirements within
2 years after publication of the final rule in the Federal Register.
One commenter suggested that amended security plans should be
reviewed by the Coast Guard before owners and operators are required to
invest resources into TWIC-related expenditures. We encourage owners
and operators to work with the Coast Guard, as needed, to prepare
security plans that comply with regulatory requirements. We do not
believe, however, that it is necessary to create a formal coordination
process in which the Coast Guard would review amended security plans
separate from what already exists.
14. Recordkeeping
The ANPRM proposed a requirement on owners and operators using TWIC
readers to maintain records on each individual granted unescorted
access to a secure area. Owners and operators would be required to
maintain such records for a period of 2 years. Five commenters argued
that owners and operators should not be required to check the TWICs of
individuals leaving a vessel or facility. This is consistent with the
ANPRM's approach, and we propose it in this NPRM as well.
One commenter considered the ANPRM's proposed 2-year record
retention requirement to be reasonable. Other commenters believed 2
years is longer than necessary for record retention, and suggested
alternative durations ranging from 30 days to 1 year. Fifteen
commenters opposed a 2-year record retention requirement altogether,
arguing that the costs would outweigh the benefits to law enforcement.
One commenter opposed recordkeeping requirements for Risk Group C.
We believe TWIC reader records can prove useful to law enforcement
without imposing an undue burden on the regulated population. The 2-
year timeframe for record retention was designed, in part, for
consistency with existing security-related and other recordkeeping
requirements applicable to vessels and facilities.\62\ A uniform
timeframe for recordkeeping requirements provides the public with a
consistent and predictable standard.
---------------------------------------------------------------------------
\62\ 33 CFR 104.235; 33 CFR 105.225.
---------------------------------------------------------------------------
Two commenters stated that MTSA does not require the Secretary to
impose recordkeeping requirements. We agree with this comment. With
respect to TWIC, MTSA requires the Secretary to prescribe regulations
to prevent an individual from entering secure areas of vessels and
facilities unless the individual is so authorized and either possesses
a TWIC or is escorted by someone who possesses a TWIC.\63\ Thus, while
MTSA does not specifically require the Secretary to impose
recordkeeping requirements, such requirements are within the
Secretary's authority, and they are an important part of the set of
regulations designed to prevent unauthorized access to the secure areas
of the nation's transportation system. For example, in the event of a
TSI or a security breach, records would be available to the Coast Guard
and other law enforcement to enable them to determine who had accessed
the vessel or facility.
---------------------------------------------------------------------------
\63\ 46 U.S.C. 70105(a).
---------------------------------------------------------------------------
Two commenters requested that we prescribe more detailed
recordkeeping requirements. In contrast, one commenter requested that
we allow individual regulated parties to determine the best method and
manner of complying with the recordkeeping requirements. We agree with
the latter commenter's more flexible approach.
One commenter acknowledged that TWIC-related records could be
useful to law enforcement, but argued that records should only be
shared with law enforcement on a need-to-know basis. Another commenter
suggested that records should only be kept to the extent they provide a
homeland security-related benefit. We believe that TWIC reader
recordkeeping requirements would prove beneficial to law enforcement in
any number of investigations. Accordingly, this NPRM does not propose
restrictions on how law enforcement may use those records.
One commenter questioned whether portable TWIC readers have the
capability to retain records for 2 years. In response to this question,
we wish to clarify that this NPRM would not require records to be
stored specifically in TWIC readers. Logs from TWIC readers may be
maintained on the TWIC readers themselves or exported to other systems.
As stated above, we are not prescribing the specific method and manner
of complying with the proposed recordkeeping requirements.
Four commenters expressed concerns regarding the privacy of
personal information stored in TWIC readers. Some commenters
highlighted concerns with respect to foreign-owned vessels and vessels
traveling in foreign waters where equipment may be subject to seizure
by foreign authorities. One commenter suggested that the personal
information stored in a TWIC reader should be classified as SSI, which
would trigger the compliance protections in 49 CFR part 1520.
We believe that information collected by a TWIC reader needs to be
protected. We wish to clarify that the TWIC requirements found in 33
CFR part 104 do not apply to foreign vessels.\64\ We also wish to
clarify that TWIC readers typically do not capture or record the name
of the TWIC-holder. A TWIC reader only captures the TWIC-holder's name
if it is a contact TWIC-reader (i.e., one that requires the TWIC-holder
to insert the TWIC into a slot for direct contact between the TWIC
reader and the chip embedded in the TWIC) and only after the TWIC-
holder has entered the PIN. This NPRM does not propose to require
owners and operators to specifically use contact TWIC readers, nor does
this NPRM propose any PIN requirement. Therefore, a TWIC reader will
typically capture three pieces of information when an individual's TWIC
is scanned: (1) FASC--N; (2) date; and (3) time. As explained above, a
contact TWIC reader will also capture name information after the PIN
has been entered. A PACS may also capture the name of the TWIC-holder.
We consider a TWIC-holder's name and FASC-N to be SSI under 49 CFR
15.5. Therefore, if that information is captured by a TWIC reader, the
information would need to be protected in accordance with 49 CFR Part
15, which imposes duties on ``certain covered'' persons to protect
SSI.\65\ ``Covered persons'' include, among others: (1) Each owner,
charterer, or operator of a vessel, including foreign vessel owners,
charterers, and operators, required to have a security plan under
Federal or International law; (2) each owner or operator of a maritime
facility required to have a security plan under MTSA and each person
who has access to SSI, as specified in 49 CFR 15.11.\66\ Furthermore,
the International Ship and Port Facility Security Code requires a
vessel's security plan and applicable security records to be protected
from unauthorized access or disclosure.\67\ SSI information collected
by a TWIC reader falls under that requirement.
---------------------------------------------------------------------------
\64\ See 33 CFR 104.105(d).
\65\ See 49 CFR 15.7.
\66\ See 49 CFR 15.7.
\67\ See International Ship and Port Facility Code, Part A,
adopted on December 12, 2002, Sections 9.7, 9.8 and 10.4.
---------------------------------------------------------------------------
One commenter supported the ANPRM's proposed requirement that
owners and operators explain how they are protecting personal identity
information stored in a separate PACS. Two commenters questioned
whether MTSA grants the Coast Guard authority to impose such a
requirement.
To the extent that a PACS contains personal identity and biometric
[[Page 17807]]
information, it contains SSI, which must be protected in accordance
with 49 CFR part 15. The Coast Guard, through delegation from the
Secretary, has the authority to impose such recordkeeping requirements.
Section 70124 of Title 46 U.S.C. authorizes the Secretary to issue
regulations necessary to implement provisions of chapter 701 of Title
46 U.S.C, and 46 U.S.C. 70103(c)(4) subjects all security plans to
review by the Secretary. Additionally, 46 U.S.C. 71013(c)(4)(D)
requires the periodic verification of the effectiveness of an FSP.
Recordkeeping requirements are authorized under those statutory
provisions.
15. Other Comments
Seven commenters requested additional public meetings and greater
coordination between the Coast Guard and affected industries as the
TWIC program is implemented. Two commenters requested greater labor
union input regarding the employee information collected and stored in
the TWIC. One commenter requested greater Coast Guard collaboration
with Congress, authorities from affected States, and Coast Guard
advisory committees during the rulemaking process.
We will hold at least one public meeting in connection with this
rulemaking and we are considering holding additional public meetings in
connection with this rulemaking. The details of any future public
meeting will be published in a separate notice in the Federal Register.
We welcome the participation and comments of all interested parties.
Three commenters suggested that TWIC reader requirements should be
tailored to enable integration with an existing PACS, since some owners
and operators have invested substantial resources into existing
systems. We agree with these commenters. In fact, data from the TWIC
Pilot demonstrated that those pilot participants where TWIC readers
were certified for operation with an existing PACS encountered fewer
integration and operational and technical issues than other pilot
participant systems. Accordingly, this NPRM proposes options for
vessels and facilities to either use a stand-alone TWIC reader or to
integrate TWIC into an existing PACS.
Two commenters requested additional information regarding the
ANPRM's reference to alternate biometrics that may be used in
connection with TWIC. This NPRM continues to propose two alternatives
for biometric matching. Owners and operators may: (1) Use a TWIC reader
to match the TWIC-holder's fingerprint to one of the fingerprint
templates stored in the TWIC; or (2) use a PACS to match the TWIC-
holder's biometric to the biometric stored in a PACS. For the latter
option, owners and operators may use a different biometric than the
fingerprint, such as an iris scan or hand geometry, stored in a PACS to
be matched to the individual seeking access to secure areas. Since the
implementation of the latter option would be unique to each vessel or
facility, it would be impractical for us to propose a single set of
prescriptive regulations for each owner and operator to follow.
Instead, owners and operators would explain in their security plans the
details of how their use of alternate biometrics performs the required
access control functions.
Two commenters suggested that TWIC functionality should be enhanced
to include other biometrics in addition to fingerprints. We believe
that to enhance the features on the TWIC so that it includes other
biometrics in addition to fingerprints would increase the costs
associated with the TWIC program. We do not currently have data to show
that the benefits of such an enhancement would justify those additional
costs. Furthermore, the only standard for a biometric that the Federal
government has published to date is the fingerprint biometric.\68\
---------------------------------------------------------------------------
\68\ See National Institute of Standards and Technology (NIST)
Special Publication 800-76-1, ``Biometric Data Specification for
Personal Identity Verification,'' (January 2007), available at
http://csrc.nist.gov/publications/nistpubs/800-76-1/SP800-76-1_012407.pdf.
---------------------------------------------------------------------------
One commenter suggested that the final TWIC reader rule should
become effective only after a period of 24-36 months to enable owners
and operators to adequately train employees and test their TWIC
readers. We acknowledge that a period for TWIC reader training and
testing is warranted. This NPRM proposes an effective date for
compliance within 2 years after publication of a TWIC reader final rule
in the Federal Register.
One commenter requested confirmation that the regulations are
imposing minimum requirements, and that owners and operators be given
discretion to implement higher standards. While we have sought to
minimize costs in this rulemaking, owners and operators may impose
security provisions that exceed the minimum regulatory requirements.
Three commenters suggested that vessels operating outside U.S.
waters should not be required to use TWIC readers, citing concerns
about disruptions at foreign ports due to the inability of foreign
workers to access these vessels. We disagree with these comments and do
not propose an exemption from TWIC reader requirements for vessels
operating outside U.S. waters. Under existing regulation, all persons
requiring unescorted access to secure areas of a MTSA-regulated vessel
must possess a TWIC, regardless of whether the vessel is located in
U.S. waters.\69\ For any individual without a TWIC to access secure
areas of a MTSA-regulated vessel, the individual must be authorized to
be there and also be escorted by a TWIC-holder.
---------------------------------------------------------------------------
\69\ See 33 CFR 101.514.
---------------------------------------------------------------------------
One commenter asked whether a non-U.S. citizen is eligible to
obtain a TWIC. A list of certain non-U.S. citizens that are eligible to
obtain a TWIC is available on TSA's Web site at http://www.tsa.gov/sites/default/files/publications/pdf/twic/immigration_status_documents.pdf.
Some commenters requested additional guidance for situations when
TWIC readers or communication systems malfunction. In this NPRM, we
propose that, in the event of a TWIC reader malfunction, individuals
can still be granted unescorted access to secure areas for a period not
to exceed 7 days, provided that the individual has been granted such
unescorted access in the past and is known to possess a TWIC. Owners
and operators expecting such occurrences should provide appropriate
contingency planning in their security plans. We request comments from
the public regarding whether 7 days is a sufficient amount of time in
which to expect resolution of a typical TWIC reader or communication
systems malfunction.
Four commenters requested further guidance with respect to how
owners and operators would be required to process TWIC-holders with
poor quality or no fingerprints. In such instances, we expect that the
owner or operator would describe in their security plan the exception
process they plan to use. The exception process may include PIN
verification, alternative biometric verification, visual comparison of
the digital photo stored in the TWIC to the presenter using a portable
reader with a contact interface and releasing the photo to the reader
screen by entering the 6-, 7-, or 8-digit PIN, or an alternative
process proposed by the owner or operator and approved by the Coast
Guard.
Three commenters argued that TWIC reader requirements at rail
entrances to facilities would be impractical. These
[[Page 17808]]
commenters cited throughput delays, increased traffic, environmental
concerns with increased emissions, costs of TWIC readers at seldom-used
rail entrances, and security risks when rail workers leave their
cargoes unattended to walk to the nearest TWIC reader.
We note that facilities could provide TWIC-holding escorts to rail
workers, which is one way to alleviate these concerns. We also note
that current regulations already require visual inspection of TWICs at
rail entrances to secure areas of regulated facilities. The TWIC Pilot
found that the increase in throughput delay resulting from a TWIC
reader requirement is 2 seconds. Therefore, we do not believe a TWIC
reader requirement at rail entrances to secure areas of Risk Group A
facilities would lead to the results suggested by the commenters. While
we seek to minimize the burdens associated with TWIC reader
requirements, an exemption from such requirements at rail entrances
would be inconsistent with the goal of the TWIC program to ensure that
access to secure areas of the transportation system is limited to
authorized individuals holding a TWIC.
One commenter suggested that TWIC-holders on all MTSA-regulated
vessels and facilities should be required to visually display their
TWICs, similar to the requirement at federally regulated airports.
Another commenter opposed such a requirement, citing concerns that this
practice might increase the number of lost TWICs.
In keeping with the longstanding tradition that seafarers keep
their mariner credentials and other important documents on the bridge
or stored in a secure place, this NPRM does not propose to require
TWIC-holders to display their credentials at all times. Existing Coast
Guard guidance acknowledges that such a requirement may not be
practical in the marine environment.\70\ Owners and operators are
permitted to collect and store all crewmember TWICs in the vessel's
pilot house or allow for TWICs to be stored in another secure location
on board the vessel or at the facility.
---------------------------------------------------------------------------
\70\ See Navigation and Vessel Inspection Circular (NVIC) No.
03-07, ``Guidance for the Implementation of the Transportation
Worker Identification Credential (TWIC) Program in the Maritime
Sector,'' (July 2, 2007).
---------------------------------------------------------------------------
F. TWIC Reader Pilot Program
This section discusses the background and findings of DHS's TWIC
Pilot on TWIC reader functionality in the maritime sector. A copy of
the TWIC Pilot report, as well as the GAO reports discussed below, are
available for viewing in the public docket for this rulemaking. The
Coast Guard seeks comments on the following characterizations of the
TWIC Pilot, the Coast Guard's conclusions from the TWIC Pilot, and how
the Coast Guard used the findings from the TWIC Pilot to inform the
NPRM.
1. Background
The TWIC Pilot was established under Section 104 of the SAFE Port
Act, and was designed to evaluate the business processes, technology,
and operational impacts of implementing a TWIC reader system. The SAFE
Port Act required the Secretary to conduct the TWIC Pilot at not fewer
than five distinct geographic locations, and include vessels and
facilities in a variety of environmental settings.\71\ DHS conducted
the TWIC Pilot in seven geographic locations, and covered five
participant groups: (1) Container terminals; (2) large passenger
vessels and terminals with more than 500 passengers; (3) break-bulk
terminals; (4) petroleum facilities; and (5) small passenger vessels,
towboats, and other facility types. DHS managed the TWIC Pilot through
the joint participation of TSA and the Coast Guard, with grant funding
provided by the Federal Emergency Management Administration through the
Port Security Grant Program.
---------------------------------------------------------------------------
\71\ 46 U.S.C. 70105(k)(1)(B).
---------------------------------------------------------------------------
The TWIC Pilot consisted of three phases. In Phase 1 (Initial
Technical Testing), DHS tested TWIC readers under controlled laboratory
conditions to verify that the TWIC readers correctly processed
biometric information from the TWIC, and could also perform other TWIC
verification and validation operations in maritime environments.
In Phase 2 (Early Operational Assessment) DHS required pilot
participants to install TWIC readers and begin using them. This phase
allowed both TWIC-holders and security personnel to become familiar
with TWIC readers and different operational modes. It also provided an
opportunity to evaluate the initial technical performance of TWIC
readers in maritime settings, and to address problems.
Phase 3 (System Test and Evaluation) required pilot participants to
verify the identities of individuals granted unescorted access to
secure areas based on potential requirements as set forth in the ANPRM.
Data collected during Phase 3 included: (1) Impacts of the biometric
verification process on vessel and facility operations; (2) measurement
of wait times for access to secure areas; (3) TWIC reader and
infrastructure failures and maintenance requirements; and (4)
implementation and operating costs.
TSA completed data collection for the TWIC Pilot as of May 31,
2011. The SAFE Port Act required the Secretary to `` * * * submit a
comprehensive report to the appropriate congressional committees * * *
that includes: (A) The findings of the pilot program with respect to
technical and operational impacts of implementing a transportation
security card reader system; (B) any actions that may be necessary to
ensure that all vessels and facilities * * * are able to comply with
[TWIC reader] regulations; and (C) an analysis of the viability of
equipment under the extreme weather conditions of the marine
environment.'' DHS submitted the TWIC Pilot report to Congress on
February 27, 2012.
2. General Findings
The TWIC Pilot noted a number of benefits associated with the use
of TWIC readers. First, when used properly, TWIC readers provide an
additional layer of security by reducing the risk that an unauthorized
individual could gain access to a secure area. Owners and operators
using TWIC readers can achieve this security risk reduction without
significantly increasing throughput times at access points. Second,
security is further enhanced by enabling owners and operators to assign
access privileges to a specific, limited population of TWIC-holders.
Finally, vessels and facilities using the TWIC as a site access token,
in addition to as a means of identification, may benefit financially
through the reduction of card management operational costs associated
with identity vetting, card inventory, printing equipment, and issuance
infrastructure.
The TWIC Pilot also elicited a number of operational challenges and
lessons learned. Although the TWIC Pilot provided the most complete
information available regarding the costs associated with large-scale
TWIC reader implementation and integration for access control
available, we note some limitations regarding the TWIC Pilot data. We
were not able to obtain data from a statistically representative sample
of the affected population of MTSA-regulated vessels and facilities
affected by this proposed rule because the TWIC Pilot was a voluntary
program. As such, it was necessary to extrapolate the findings of the
TWIC Pilot across the entire affected population. There were also some
variations as to how individual pilot participants reported their data
to TSA, which made some data manipulations
[[Page 17809]]
more difficult. Also, some of the cost reporting included costs that
were not directly related to TWIC readers, but rather general physical
security, and these were included in the pilot participants' cost
estimates.
Additionally, while not all of the TWIC Pilot participants were in
Risk Group A, using the costs associated with TWIC reader deployment at
facilities not in Risk Group A does not adversely affect our overall
estimates. Potential TWIC reader implementation costs should not differ
greatly across risk groups, as the size and geography of a facility is
independent of its risk grouping. The key difference between the risk
groups is the potential consequences of a TSI at a particular facility,
not the costs associated with potential TWIC reader deployment.
Since the passage of MTSA in 2002, the United States Government
Accountability Office (GAO) has published a number of reports regarding
implementation of the TWIC program, highlighting both progress and
limitations. Copies of these reports are available for viewing on the
GAO Web site at www.gao.gov, by clicking on the ``Reports &
Testimonies'' tab, and using ``TWIC'' as your keyword search term, as
well as in the docket. The GAO has conducted a review of the TWIC
Pilot, highlighting some of the same limitations with respect to the
quality of TWIC Pilot data we have described above. While we
acknowledge that the TWIC Pilot contained certain data limitations, the
TWIC Pilot provided the most detailed and wide-spread assessment of the
impacts of deploying TWIC readers in the maritime sector to date. The
TWIC Pilot provided useful data with respect to the costs associated
with installing and integrating TWIC readers at facilities, as well as
valuable TWIC-holder population data and TWIC reader failure rates, as
experienced during the TWIC Pilot. As discussed below in Section III.H.
``Additional Data Sources,'' we supplemented TWIC Pilot data with other
data sources as necessary to provide the most accurate estimates for
cost and benefit possible. In accordance with 46 U.S.C. 70105(k)(3),
the proposals in this NPRM are consistent with the findings of the TWIC
Pilot.
The TWIC Pilot generally found that when TWIC readers are designed,
installed, and operated in a manner consistent with the business
considerations of the vessel or facility, they function properly.
Conversely, the TWIC Pilot also noted a number of operational and
technological difficulties that affected overall success at many pilot
locations. The proposals in this NPRM are designed to be consistent
with the findings of the TWIC Pilot.
3. Specific Challenges and Lessons Learned
The TWIC Pilot noted that processing delays at access points were
sometimes compounded by user unfamiliarity with the TWIC authentication
process. It is important to note that when a user is properly trained
and acclimated to interface with the TWIC reader, transaction times
decrease considerably. In this NPRM, we have included a 2-year
compliance deadline for TWIC reader implementation to allow adequate
time for proper training.
The TWIC Pilot noted that training requirements were often
underestimated by TWIC Pilot participants. Additionally, TWIC-holders
experienced challenges becoming familiar with different TWIC reader
modes and processes. Switching among different TWIC reader modes
complicated the learning process, impacting the efficiency of TWIC
reader use. Additionally, TWIC-holders had difficulty interfacing with
TWIC readers from multiple manufacturers with differing designs and
user interfaces. Finally, some TWIC-holders presented the wrong finger,
or did not hold their finger on the fingerprint sensor long enough to
complete the transaction. These occurrences impeded operations and
increased throughput times. In this NPRM, we have included a 2-year
compliance deadline for TWIC reader implementation to allow adequate
time for proper training.
The TWIC Pilot noted certain challenges that arose when using
portable TWIC readers. At facilities where workers are required to
enter and exit secure areas multiple times over short periods, it was
particularly challenging to maintain biometric checks using portable
readers. Additionally, some portable TWIC readers malfunctioned when
used carelessly in wet conditions not aligned with vendor guidance. In
this NPRM, we do not specifically require the use of portable TWIC
readers. Instead, we take a flexible approach by allowing owners and
operators to choose the type of TWIC readers that best suit their
operational needs.
The TWIC Pilot noted that while some TWIC readers performed well
throughout the TWIC Pilot, others were not as mature technologically or
required adjustments. In one case, the TWIC readers repeatedly failed
and had to be replaced by another vendor. We expect these challenges to
be mitigated in the future because TSA is developing the QTL so that
approved readers meet durability standards.
The TWIC Pilot noted that the ability of TWIC readers to work
properly depends, in part, on a functioning TWIC card. In response, TSA
established an Integrated Product Team (IPT) in conjunction with DHS
that is continuing to review the nature and prevalence of non-
functioning TWIC cards and seeking ways to resolve these technical
issues.
The TWIC Pilot noted TWIC reader installation delays at some
facilities where TWIC systems integrators were unfamiliar with other
components of multi-functional systems. In this NPRM, we have included
a 2-year compliance deadline for TWIC reader implementation to allow
facilities and security personnel adequate time for proper training.
The TWIC Pilot noted challenges with respect to the registration of
authorized TWIC-holders in a PACS. The registration process proved to
be time-consuming. Some TWIC Pilot participants that were located
within the same geographical region chose to operate using a regional
registration database. This was a successful way to populate their
various PACS. One factor that led to delays was the decision by some
facilities to require TWIC-holders to enter their PIN as part of the
registration process. Since many TWIC-holders rarely, if ever, used
their PIN since activating their TWIC, some workers could not remember
their PIN. These workers then had to visit a TWIC enrollment center to
reset their PIN and return to the facility to complete the registration
process. This NPRM does not propose to require facilities to register
authorized TWIC-holders by requiring them to enter their PIN.
The TWIC Pilot noted that some participants failed to grant TWIC-
holder rights to specific access points, which increased the number of
invalid transactions using TWIC readers. Developing standard operating
procedures to assign access privileges should mitigate this issue.
The TWIC Pilot noted that TWIC reader system architecture played a
significant role in overall technical efficiency, performance, and
throughput times. The TWIC Pilot participant with a dedicated network
only used by TWIC readers and PACS showed faster transaction times,
higher validation rates, and fewer technical issues than other TWIC
Pilot participants. System configurations that used hard wired networks
were more efficient with respect to network speed and availability than
wireless networks. Systems that included TWIC readers
[[Page 17810]]
within the security architecture encountered fewer operational issues.
Finally, TWIC reader implementation costs were lower if facilities were
able to use existing infrastructure. We encourage the regulated
population to take note of these lessons learned. Additionally, in this
NPRM, we take a flexible approach by allowing owners and operators to
choose the type of TWIC readers that best suit their operational needs.
The TWIC Pilot found that a consistent experience on the part of
TWIC-holders and security personnel enhanced the efficiency of TWIC
reader use. TWIC-holders who reported to the same facility on a daily
basis had a consistent user experience and learned to interface with
TWIC readers quickly. TWIC-holders whose work required them to access
multiple facilities, however, experienced challenges becoming familiar
with TWIC readers from several manufacturers with different designs and
interfaces, as well as many site-specific business processes and
requirements. Different TWIC reader ergonomics found at different
access points further compounded these challenges. For example, truck
drivers visiting several facilities encountered TWIC readers that were
sometimes placed at awkward heights or distances, making the readers
difficult to reach.
The TWIC Pilot tested both fixed and portable TWIC readers in
different modes of operation. In contactless mode, the card is scanned
by holding it within 4 inches of the TWIC reader. In contact mode, the
card must be inserted into a slot that allows direct contact between
the TWIC reader and the chip embedded in the TWIC. The TWIC Pilot found
that when contactless TWIC readers are used in a non-biometric mode to
verify that the card is authentic, has not expired, and is not on the
CCL, and in a manner consistent with their intended environment, access
point throughput times were less than throughput times required to
visually inspect TWICs. When used in non-biometric mode, however, it is
also necessary to visually compare the photograph on the TWIC to the
TWIC-holder. Although adding a biometric match to the above TWIC reader
functions may take slightly longer than mere visual inspection, the
TWIC Pilot did not find that the resulting access point throughput
delays impacted business operations. Nonetheless, using TWIC readers in
the biometric mode significantly increases the assurance that only
TWIC-holders are permitted to access secure areas.
The TWIC Pilot also found that fixed readers with both contact and
contactless interfaces yielded a higher validation rate than fixed
readers that only used the contactless interface to read the TWIC. A
contact read required the TWIC to be inserted into the contact slot of
the TWIC reader, which reduced the potential for incorrectly placing
the TWIC, and provided an alternative to the TWIC's internal antennae.
A successful contactless read requires the user to hold the card
motionless on or near the surface of the TWIC reader for approximately
2 seconds, which was not initially understood by many pilot
participants. As a remedial measure, the posting of explanatory
diagrams helped overcome this problem. The TWIC Pilot found that
switching between different TWIC reader modes created a confusing
process for TWIC-holders and had a negative impact on the efficiency of
TWIC reader use.
Accordingly, the proposals in this NPRM enable owners and operators
to use fixed or portable, contact or contactless TWIC readers in a
single mode of operation as much as possible. Each owner or operator
would have the discretion to configure a system that best suits the
vessel or facility.
The TWIC Pilot found that facilities with an existing PACS that
could be easily adapted to incorporate TWIC reader technology took less
time to install than facilities without that existing infrastructure.
Consistent with that finding, this NPRM allows for the integration of
TWIC reader technology into an existing PACS.
The TWIC Pilot found that geographic location did not affect the
efficiency of TWIC reader functionality. The TWIC Pilot found, however,
that at varying locations, some TWIC readers experienced difficulty
scanning fingerprints in inclement weather. Fully encapsulated fixed
contactless TWIC readers withstood harsh weather, whereas contact TWIC
readers, and TWIC readers exposed to the elements were sensitive to
inclement weather conditions. Throughout the TWIC Pilot, the conditions
under which TWIC readers had to perform were significantly more
challenging than those commonly found at entrances to office buildings
and other more controlled locations and environments. The TWIC Pilot
demonstrated that TWIC readers installed in harsh environments will
occasionally be contaminated with debris, and a maintenance program to
perform regular inspections and cleaning cycles is necessary. The TWIC
Pilot noted, however, that most of the challenges associated with
weather can be overcome with proper planning that takes environmental
conditions into consideration. Proper planning means that a facility's
business practices will be useful in determining which type of TWIC
readers and accompanying infrastructure to use. For example, if an
access point is exposed to direct sunlight, the facility can mitigate
glare by using an awning or hood. If an access point is exposed to
harsh weather, the facility may wish to use an encapsulated fixed TWIC
reader or instead use a portable TWIC reader that is kept inside a
nearby security guard booth.
TSA is developing the QTL so that approved readers meet durability
standards. Additionally, in this NPRM, we're proposing requirements
that provide owners and operators the flexibility to choose the TWIC
reader that best suits their operational needs.
G. HSI Report
This section summarizes the analysis and recommendations provided
by HSI after evaluating the risk-based approach that formed the basis
of the proposals in the ANPRM. A non-SSI version of the HSI Report is
available for viewing in the public docket for this rulemaking.
Prior to publishing the ANPRM, we developed a risk-based approach
based on MSRAM, to inform our proposals for more stringent TWIC reader
requirements on higher-risk vessels and facilities. We engaged HSI to
obtain an independent peer review of our analysis. HSI is a federally
funded research and development center established by the Secretary,
pursuant to Section 312 of the Homeland Security Act of 2002 (Pub. L.
107-296). On October 21, 2008, HSI issued a final report, titled
``Independent Verification and Validation of Development of
Transportation Worker Identification Credential (TWIC) Reader
Requirements'' (HSI Report). The HSI Report provided information and
recommendations that were useful in formulating the proposals in this
NPRM.
The HSI Report verifies that our AHP/MSRAM analysis matches the way
we described it, and that its findings can be reproduced. The HSI
Report also validates that our AHP/MSRAM analysis is technically sound.
While the HSI Report suggests that some adjustments to the results of
our analysis might be necessary, the report concludes that our
methodology is appropriate for establishing the risk ranking of vessels
and facilities set forth in the ANPRM.
The HSI Report notes that Risk Group A is well defined, but the
distinction between Risk Groups B and C is not as clear. The HSI Report
also notes that, while adjustments could be suggested with respect to
the ANPRM's proposed
[[Page 17811]]
TWIC reader requirements, the overall risk-based approach to specifying
the TWIC reader requirements is fundamentally sound. The HSI Report
recommends that we consider further analysis of how to best group
vessels and facilities into appropriate risk-based categories.
Our proposals in this NPRM are consistent with the above
conclusions and recommendations. Whereas the ANPRM proposed different
TWIC requirements for Risk Groups B and C, this NPRM proposes the same
TWIC requirements for both of those risk groups. We expect to continue
analyzing the risk rankings to determine whether alternative or
additional considerations would yield more appropriate risk groupings
and corresponding TWIC requirements. As noted earlier, if the Coast
Guard changes the risk groupings, it will be done through rulemaking
and the public will have an opportunity to comment.
The HSI Report also recommends that we consider better defining the
concept of TWIC utility. As used in the context of the AHP/MSRAM
analysis, TWIC utility accounts for the reduced risk to a vessel or
facility due to TWIC implementation. The HSI Report acknowledges that a
clearer definition of this concept may require analysis of each
individual vessel and facility, which would substantially expand the
scope of the process of developing TWIC reader requirements. The HSI
Report suggests that we consider an approach that combines general
analyses of broad risk groups with specific analyses of individual
vessels and facilities. We are considering the feasibility of
implementing this recommendation.
The HSI Report recommends that we consider adding flexibility to
TWIC reader requirements by providing a process through which owners
and operators may seek a waiver of TWIC reader requirements based on
the unique features of a specific vessel or facility. The rationale for
this recommendation is that while TWIC reader requirements apply to an
entire risk group, each risk group is comprised of a range of types of
vessels and facilities with fundamentally different security systems.
In response to this recommendation, we note that waiver provisions
already exist in current 33 CFR 104.130, 105.130, and 106.125. These
provisions enable an owner or operator to apply for a waiver of any
requirement that the owner or operator considers unnecessary in light
of the nature or operating conditions of a vessel or facility.
The HSI Report recommends that we consider using dynamic
consequence data instead of the static maximum consequence data
currently used as part of the MSRAM analysis. The rationale for this
recommendation is that maximum consequence would necessarily change
depending on how vessels and facilities are used. For example, a cruise
ship terminal would have a different maximum consequence when cruise
ships are docked at the facility, as opposed to when the port is empty.
We believe that, due to the amount and complexity of dynamic
consequence data, obtaining such data would not be feasible.
Furthermore, use of dynamic consequence data would eliminate or at
least dramatically reduce the predictability of regulatory
requirements, and would likely not reduce costs significantly, as most
costs would be borne anyway. Nonetheless, we are considering the
feasibility of implementing this recommendation.
H. Additional Data Sources
TWIC Pilot data was supplemented with other data sources as
necessary to provide the most accurate estimates for cost and benefit
possible. Other data sources included the Coast Guard's Marine
Information for Safety and Law Enforcement (MISLE) database for
population figures, MSRAM for risk hierarchy and consequence data, the
General Services Administration schedule for TWIC reader hardware and
software costs, Environmental Protection Agency data for estimates for
truck throughput, and contracted studies for general discussion points
on access control systems. For a more detailed discussion on the use of
this data, please refer to the ``Preliminary Regulatory Analysis and
Initial Regulatory Flexibility Analysis,'' which is available in the
public docket for this rulemaking. The Coast Guard seeks public comment
on whether or not there are additional data sources that should be
considered. If there are, please include information in your comments
about these data sources and the reason for their relevance.
I. Advisory Committee Input
This section discusses the input we received from advisory
committees in connection with this rulemaking.
The Coast Guard has a long tradition of consulting with its
advisory committees before taking regulatory action. We acknowledge the
benefit of consulting with advisory committees. Prior to issuing the
ANPRM, we sent a task statement to MERPAC, NMSAC, and TSAC, asking 18
questions related to TWIC reader requirements. This task statement is
available for viewing in the public docket for this rulemaking. We
accepted and incorporated a number of the advisory committee
recommendations into the ANPRM and this NPRM. For example, we
incorporated TSAC's recommendation to set the crew size cutoff number
at 14 for determining when to exempt vessels from TWIC reader
requirements as discussed more fully below in Section IV.E. ``TWIC
Reader Exemption for Vessels With 14 or Fewer TWIC-holding
Crewmembers.'' Both NMSAC and MERPAC recommended that we wait for
completion of the TWIC Pilot before publishing an NPRM on TWIC reader
requirements. MERPAC recommended against requiring owners and operators
to verify TWIC-holder PIN information. MERPAC also recommended that low
risk vessels and facilities should not be subject to TWIC reader
requirements. These are some examples of the advisory committee
recommendations we incorporated into this NPRM. We greatly appreciate
advisory committee input into this program. Copies of each advisory
committee's formal recommendations and responses to the task statement
are available for viewing in the public docket for this rulemaking.
IV. Section-by-Section Description of Proposed Rule
This section provides a discussion of the regulations we propose in
this NPRM, which include: updated definitions relevant to this
rulemaking; a provision on the Federalism issues associated with the
Coast Guard's maritime security regulations; TWIC reader and inspection
requirements for Risk Groups A, B, and C, applicable in both normal and
special circumstances; deadlines for compliance with the proposed
regulatory requirements; TWIC reader recordkeeping requirements; TWIC-
related risk group classifications for vessels and facilities;
requirements for the physical placement of TWIC readers; and several
technical amendments to the regulations.
We note that, if finalized, the proposed regulations would be
subject to the control and compliance measures in 33 CFR 101.410, which
give the COTP authority to impose measures to rectify non-compliance.
The proposed regulations would also be subject to the relevant civil
and/or criminal penalties in 33 CFR 101.415 for violations of any
provision in 33 CFR subchapter H.
A. Definitions
We propose to amend 33 CFR 101.105 by adding several new defined
terms.
The term ``biometric match'' would mean a confirmation that: one of
the two
[[Page 17812]]
biometric (fingerprint) templates stored in the TWIC matches the
scanned fingerprint of the person presenting the TWIC; or the alternate
biometric stored in a PACS matches the corresponding biometric of the
person.
The term ``Canceled Card List (CCL)'' would mean the list of TWIC
Federal Agency Smart Credential-Numbers that have been invalidated or
revoked because TSA has determined that the TWIC-holder may pose a
security threat, or because the card has been reported lost, stolen, or
damaged.
The term ``card authentication'' would mean the electronic
verification that the card presented is a valid TWIC issued by TSA.
The term ``Card Holder Unique Identifier (CHUID)'' would mean the
standardized data object comprised of the FASC-N, globally unique
identifier, expiration date, and certificate used to validate the data
integrity of other data objects on the credential.
The term ``card validity check'' would mean the verification that a
TWIC has not been revoked or expired.
The term ``Mobile Offshore Drilling Unit (MODU)'' is defined by
reference to 33 CFR 140.25.
The term ``Offshore Supply Vessel (OSV)'' is defined by reference
to 46 CFR 125.160.
The term ``Physical Access Control System (PACS)'' would mean a
system that includes devices, personnel, and policies that controls the
access to and within a facility or vessel.
The term ``Risk Group'' would mean the risk ranking assigned to a
vessel, facility, or OCS facility for the purpose of TWIC requirements.
The term ``TWIC reader'' would mean an electronic device used to
verify and validate: the authenticity of a TWIC; the identity of the
TWIC-holder as the legitimate bearer of the credential; that the TWIC
is not expired; and that the TWIC is not on the CCL. The term is
specifically defined by reference to TSA's Qualified Technology List of
acceptable TWIC readers, because only those devices meet TSA's required
specifications.
We propose to amend 33 CFR 101.105 by deleting the term ``recurring
unescorted access''. This term was included in 33 CFR 101.105 as part
of the TWIC 1 final rule, though we determined at that time to defer
implementing TWIC reader requirements. RUA was initially proposed to
provide relief to owners and operators of vessels otherwise required to
use TWIC readers, because of the familiarity that exists between a
relatively small number of crewmembers. Two important changes in
approach from the ANPRM to this NPRM render RUA an unnecessary
provision. First, this NPRM proposes to exempt from TWIC reader
requirements all vessels with 14 or fewer TWIC-holding crewmembers,
based on the SAFE Port Act's provision that prohibits requiring TWIC
readers on vessels that the Secretary has determined do not have the
requisite number of TWIC-holders as crewmembers.\72\ This exemption
provides relief equivalent to that which RUA would have provided.
Second, whereas the ANPRM proposed to require TWIC readers for Risk
Groups A and B, this NPRM proposes to require TWIC readers for Risk
Group A only. This change reduces the number of vessels and facilities
to which TWIC reader requirements would apply, and renders the need for
RUA as a mechanism for regulatory relief unnecessary.
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\72\ 46 U.S.C. 70105(m)(1).
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B. Federalism
A Presidential Memorandum, dated May 20, 2009, entitled
``Preemption,'' \73\ requires an agency to codify a preemption
provision in its regulations if the agency intends to preempt State
law. We propose to add new 33 CFR 101.112, providing a statement
regarding the preemption principles that apply to 33 CFR subchapter H.
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\73\ 74 FR 24693.
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We believe the field-preemption Federalism principles articulated
in United States v. Locke and Intertanko v. Locke \74\ apply to 33 CFR
parts 101, 103, 104, and 106. Therefore, States and local governments
are foreclosed from regulating within this field. We believe the
Federalism principles articulated in Locke also apply to 33 CFR part
105, at least insofar as a State or local law or regulation applicable
to MTSA-regulated facilities for the purpose of their protection, would
conflict with a Federal regulation (i.e., it would either actually
conflict or would frustrate an overriding Federal need for uniformity).
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\74\ 529 U.S. 89, 120 S.Ct. 1135 (March 6, 2000).
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C. Additional Persons Required To Obtain TWICs
This NPRM withdraws the ANPRM's proposal to include non-
credentialed individuals engaged on towing vessels not regulated under
33 CFR part 104 among the list of mariners required to possess a TWIC.
We seek public comment on the number of vessels pilots without a
Federal license, and whether a specific provision to include them in
the regulatory requirement to obtain a TWIC is necessary.
In the ANPRM, we proposed to explicitly require non-Federally
licensed vessel pilots and non-credentialed individuals engaged on
towing vessels not regulated under 33 CFR part 104 to possess a TWIC.
The purpose of this proposal was to update the regulations to more
thoroughly incorporate the list of individuals required by 46 U.S.C.
70105(b) to possess a TWIC.
Subsequent developments have caused us to withdraw part of the
ANPRM's proposal. Section 809 of the CGAA 2010 authorized the Secretary
to exempt any credentialed mariner who is not granted unescorted access
to secure areas of a vessel from the requirement to possess a TWIC. On
December 19, 2011, the Coast Guard's Office of Vessel Activities (CG-
543) published Policy Letter No. 11-15,\75\ describing both policy and
forthcoming regulatory solutions that we are undertaking to implement
Section 809. Policy Letter No. 11-15 contains exemptions for certain
mariners from the requirement to obtain or hold a TWIC. Exempt mariners
would include mariners not operating under the authority of a
credential and mariners serving on a vessel not required to have a
Vessel Security Plan. These are mariners that the ANPRM's proposal
would have explicitly included among the list of mariners required to
obtain a TWIC.
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\75\ CG-543 Policy Letter No. 11-15, ``Processing of Merchant
Mariner Credentials (MMC) For Mariners Not Requiring a
Transportation Worker Identification Credential,'' available for
viewing at https://homeport.uscg.mil/.
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In light of Section 809 and related Coast Guard regulatory action,
this NPRM withdraws the ANPRM's proposal to include non-credentialed
individuals engaged on towing vessels not regulated under 33 CFR part
104 among the list of mariners required to possess a TWIC.
Additionally, while there may be some vessel pilots that do not hold
Federal licenses, we have not determined whether there is a population
of State-licensed vessel pilots that are not otherwise required to
obtain a TWIC because they access secure areas of MTSA-regulated
vessels. We seek public comment on this subject, and whether a specific
provision to include them in the regulatory requirement to obtain a
TWIC is necessary. If there is a population of State-licensed vessel
pilots not covered under the current regulatory requirement to obtain a
TWIC, we intend to revise 33 CFR 101.514 to cover that population.
[[Page 17813]]
D. TWIC Reader Requirements for Risk Group A
We propose to add new 33 CFR 101.520 that sets forth the TWIC
reader requirements for Risk Group A. We have determined that owners
and operators of vessels or facilities in Risk Group A should be
required to implement the TWIC's most protective measures using a TWIC
reader or TWIC-integrated PACS.
At MARSEC Level 1, all persons seeking unescorted access to secure
areas would be required to present a TWIC and fingerprint for biometric
identity verification, card authentication, and card validity check.
The owner or operator would be required to perform the card validity
check based on CCL information no more than 7 days old. The owner or
operator may perform these functions using a TWIC reader or a TWIC-
integrated PACS. If using a PACS, biometrics other than fingerprints
may be used to perform the identity verification, provided that the
owner or operator links the person, the TWIC, and the alternate
biometric in the PACS. To do this, the owner or operator would be
required to perform a one-time biometric match and card authentication
using a TWIC reader. Owners or operators would be required to explain
in their security plans how the PACS performs the required security
functions and how the SSI captured by the PACS is protected.
At MARSEC Level 2, the same procedures would apply as those at
MARSEC Level 1, except that the owner or operator would be required to
perform the card validity check based on CCL information no more than 1
day old. The heightened security threats present at elevated MARSEC
Levels justify this additional requirement.
We propose two additional provisions in 33 CFR 101.520 to ensure
that CCL information is updated and used appropriately. First, owners
and operators would be required to update CCL information within 12
hours of any increase in MARSEC Level, regardless of when the CCL
information was last updated. Second, owners and operators would be
required to use the most recently obtained CCL information when
conducting card validity checks.
Finally, we propose a provision in 33 CFR 101.520 that would
authorize the COTP to temporarily suspend TWIC reader requirements at a
facility if the COTP determines that such requirements are causing
delays resulting in excessive vehicle build-up or other unintended
consequence. A facility owner or operator could contact the COTP
seeking such a determination. During the period of any such suspension,
the owner or operator would be required to perform visual TWIC
inspections for identity verification, card authentication, and card
validation.
E. TWIC Reader Exemption for Vessels With 14 or Fewer TWIC-Holding
Crewmembers
We propose to add new 33 CFR 101.520(e), exempting all vessels with
14 or fewer TWIC-holding crewmembers from TWIC reader requirements. The
statutory basis for this exemption is the SAFE Port Act provision that
prohibits the Secretary from requiring TWIC readers on a vessel unless
the vessel has more individuals on the crew required to have a TWIC
than the number the Secretary determines warrants such a reader.\76\
The underlying rationale for this exemption is that vessels with a
small enough number of TWIC-holders on board have a reduced TSI
vulnerability from unauthorized access because the small number of
crewmembers are easily recognizable and known to one another. We
propose 14 as the cutoff number based on a recommendation from TSAC.
According to TSAC, vessels with 14 or fewer crewmembers have a reduced
vulnerability because the individuals are all ``known'' to one another.
The number was developed by taking into account the fact that for a
small vessel, such as a towing vessel or offshore supply vessel, the
crew would typically include up to one Master, one Chief Engineer, and
three four-person crews who rotate through watch shifts.
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\76\ 46 U.S.C. 70105(m).
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We seek public comment on this proposal to exempt all vessels with
14 or fewer TWIC-holding crewmembers from TWIC reader requirements,
including whether 14 is an appropriate cut-off number. We request that
commenters please explain and provide available data to support their
comments.
We recognize that, particularly for smaller vessels such as towing
vessels, the value of electronic identity verification is less than it
is for facilities, which generally interact with greater numbers of
vendors, visitors, and facility employees. For this reason, and because
TWIC readers are only proposed for Risk Group A, we believe it is
neither appropriate nor necessary to exempt facilities with 14 or fewer
TWIC-holders from TWIC reader requirements.
F. TWIC Inspection Requirements for Risk Groups B and C
We propose to add new 33 CFR 101.525 and 101.530 that set forth the
TWIC visual inspection requirements for Risk Groups B and C,
respectively. In this NPRM, we are not proposing TWIC reader
requirements for vessels and facilities in Risk Groups B and C. We
believe the overall approach in this proposed rule would implement the
TWIC reader program in a targeted manner that enhances the security of
MTSA-regulated vessels and facilities without imposing undue burdens.
We request public comment on this determination.
At all MARSEC Levels, all persons seeking unescorted access to
secure areas of vessels or facilities in Risk Groups B or C would be
required to present a TWIC for visual identity verification, card
authentication, and card validity check, prior to each entry. An owner
or operator would perform identity verification by visually matching
the photograph on the TWIC to the individual presenting it. An owner or
operator would verify TWIC authenticity by visually checking its
security features to determine whether it has been tampered with or
forged. An owner or operator would validate the TWIC by visually
checking the expiration date on the face of the TWIC to determine
whether it has expired. Owners and operators of vessels or facilities
in Risk Groups B and C would not be required to check TWICs against the
CCL.
As discussed above in Sections II. and III. above, we are
considering a phased approach to implementing TWIC reader requirements
by proposing such requirements first for vessels and facilities in Risk
Group A, where the risk of harm is greatest. We have estimated that for
Risk Group A, the ratio of annualized cost of TWIC reader requirements
to average consequence figures (the monetized costs of fatalities and
injuries resulting from a TSI) warrants the TWIC reader requirements
proposed in this NPRM. For Risk Group B, we believe the estimated ratio
of annualized cost of TWIC reader requirements to average consequence
figures supports our phased approach. We will continue to analyze risk
data and consider whether additional or modified TWIC reader
requirements would be warranted in the future. For a more detailed
discussion of the costs and benefits of the proposals in this NPRM,
please refer to Section V., ``Regulatory Analyses'' below.
The proposed TWIC inspection requirements in 33 CFR 101.525 and
[[Page 17814]]
101.530 would be minimum requirements. We have included proposed
regulatory provisions stating that owners and operators would have the
discretion to impose access control measures that are stricter than the
minimum regulatory requirements.
Although this NPRM proposes the same substantive TWIC inspection
requirements for Risk Groups B and C, these requirements appear in
separate sections because we are continuing to gather data and analyze
whether different requirements would be appropriate for these risk
groups. Any such modifications would be proposed in a separate
rulemaking document, with the opportunity provided for public comment.
G. TWIC Inspection Requirements in Special Circumstances
We propose to add new 33 CFR 101.535 that sets forth TWIC
inspection requirements in special circumstances. These provisions are
designed to provide an appropriate level of flexibility in the TWIC
reader and inspection requirements when special circumstances arise.
If an individual is unable to present a TWIC because it has been
lost, damaged, or stolen, and the individual has previously been
granted unescorted access to secure areas and is known to have
previously possessed a TWIC, an owner or operator would be permitted to
grant the individual unescorted access to secure areas for a period of
no longer than 7 consecutive days, provided that the following
conditions are met: (1) The individual has reported the TWIC as lost,
damaged, or stolen to TSA as required in 49 CFR 1572.19(f); (2) the
individual presents another identification credential that meets the
requirements of 33 CFR 101.515; and (3) there are no other suspicious
circumstances associated with the individual's claim of loss or theft.
With the exception of these individuals, all others who are granted
unescorted access to secure areas would be required to produce their
TWIC upon request from TSA, the Coast Guard, any other authorized DHS
representative, or a law enforcement officer.
If an individual cannot present a TWIC for any reason other than
those outlined in the immediately preceding paragraph, the individual
may not be granted unescorted access to secure areas. In order to
access secure areas, the individual would need to be escorted by a
TWIC-holder authorized to be in the secure area.
In some instances, when an individual has poor quality
fingerprints, a TWIC reader may not be able to consistently perform the
biometric identity verification function. Also, a small number of TWICs
will be issued that contain either poor quality fingerprint templates,
mostly due to badly damaged fingers, or no fingerprint minutiae, in the
case of amputations. We expect owners and operators to describe the
exception handling process to be used in such cases in their security
plans. The exception handling process may include granting unescorted
access after the individual has successfully provided a PIN.
Alternatively, an owner or operator may require the individual to
present an alternative biometric, such as a retina scan or other
biometric that has been incorporated into a PACS.\77\
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\77\ Section 814 of the CGAA 2010 allows the Secretary to use a
secondary authentication system to verify the identification of
individuals using TWIC when the individual's fingerprints are not
able to be taken or read.
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If a TWIC reader malfunctions, an owner or operator would still be
permitted to grant the individual unescorted access to secure areas,
provided that certain conditions are met. First, the individual would
be required to have previously been granted unescorted access to secure
areas in the past, and the individual would be required to be known to
have a TWIC. Second, the owner or operator would be required to perform
identity verification, card validation and card authentication by
visual inspection. An owner or operator may rely on this alternative
for a period of 7 calendar days while the TWIC reader malfunction is
corrected.
TWIC requirements in 33 CFR 104.265, 105.255, and 106.260 currently
contain provisions regarding disciplinary measures to prevent fraud and
abuse, coordination of access control with other vessels and
conveyances, and security plan requirements. We propose to relocate
those provisions to 33 CFR 101.535(f)-(h).
H. Compliance Deadlines
We propose to amend 33 CFR 104.115 and 105.115 to set forth the
required compliance deadlines with respect to TWIC reader requirements.
Within 2 years after publication of the TWIC reader final rule, owners
and operators would be required to be operating in accordance with the
requirements contained in that final rule. Also, within 2 years after
publication of the TWIC reader final rule, owners and operators would
have to amend their security plans to indicate how they implement the
TWIC reader requirements contained in the applicable sections of 33 CFR
parts 101, 104, and 105.
In the ANPRM, we were not proposing to amend the section on ASPs to
require amendments within 2 years of the final rule. Instead, in the
ANPRM, we said we would exercise our authority under 33 CFR
101.120(d)(1)(ii) to require those entities using ASPs to amend them to
incorporate TWIC requirements. For the purpose of consistency with the
other vessels and facilities subject to 33 CFR parts 104, 105, and 106,
this NPRM eliminates the ANPRM's proposed approach to treat entities
with approved ASPs differently. Accordingly, this NPRM proposes to
require entities to update their ASPs in the same manner and on the
same schedule as the other vessels and facilities subject to 33 CFR
parts 104, 105, and 106.
We recognize that in addition to this NPRM, there are a number of
ongoing Coast Guard rulemakings (e.g., Updates to 33 CFR Subchapter H:
Maritime Security (RIN 1625-AB30) and Consolidated Cruise Ship Security
Measures (RIN 1625-AB38)) that could affect vessel, facility, and OCS
facility security plans in the near future. In 2011, a majority of
facilities that would be subject to these proposed requirements already
updated and submitted for approval security plans in accordance with 33
CFR subchapter H. If each of the ongoing rulemaking projects required
an update to security plans, there could be a significant increase in
workload for owners and operators, as well as at the Coast Guard Marine
Safety Center, Districts, and Sectors. We are currently examining
several options to coordinate the rulemakings and manage the plan
submission and re-approval process to ensure that plan changes occur
only as often as necessary to incorporate any new regulatory
requirements. While this NPRM proposes a 2-year deadline for updated
security plans, we invite comments or suggestions from the public on
how to streamline and reduce the level of effort for all stakeholders.
I. Recordkeeping
We propose to amend 33 CFR 104.235 and 105.225 to set forth TWIC
reader recordkeeping requirements. These recordkeeping requirements
would apply when TWIC readers are used, and not in the special
circumstances described in the proposed regulations when the owner or
operator is permitted to rely on visual TWIC inspection. Owners and
operators using TWIC readers, with or without a PACS, would be required
to maintain certain records for at least 2 years. During that time,
owners and operators would be required to make those records available
to the
[[Page 17815]]
Coast Guard upon request. Those records include, with respect to each
individual granted unescorted access to a secure area: (1) FASC-N; (2)
date that access was granted; (3) time that access was granted; and (4)
if captured, the name of the individual to whom access was granted. If
a TWIC reader or PACS captures the required data when the TWIC is
scanned, and can retain and reproduce that data, the recordkeeping
requirement would be met. Owners and operators would be required to
also maintain records to demonstrate that they have performed the
required card validity check using the CCL on each individual. Finally,
we propose to include a regulatory provision indicating that TWIC
reader records are SSI, and would be required to be protected in
accordance with 49 CFR part 1520.
J. Risk Group Classifications
We propose to add new 33 CFR 104.263, 105.253, and 106.258 to set
forth the risk group classifications for vessels and facilities. The
risk group classifications proposed in the NPRM are the same as those
proposed in the ANPRM, with minor technical changes, as follows:
For vessels subject to 33 CFR part 104, this NPRM proposes the
following risk group classifications:
Risk Group A
(1) Vessels that carry Certain Dangerous Cargoes (CDC) in bulk.
(2) Vessels certificated to carry more than 1,000 passengers.
(3) Towing vessels engaged in towing a barge or barges subject to
(1) of this section or vessels subject to (2) of this section.
Risk Group B
(1) Vessels that carry hazardous materials other than CDC in bulk.
(2) Vessels subject to 46 CFR chapter I, subchapter D, that carry
any flammable or combustible liquid cargoes or residues.
(3) Vessels certificated to carry 500 to 1,000 passengers.
(4) Towing vessels engaged in towing a barge or barges subject to
(1), (2), or vessels subject to (3) of this section.
Risk Group C
(1) Vessels carrying non-hazardous cargoes that are required to
have a vessel security plan (VSP).
(2) Vessels certificated to carry less than 500 passengers.
(3) Towing vessels engaged in towing a barge or barges subject to
(1) of this section or vessels subject to (2) of this section.
(4) Mobile Offshore Drilling Units (MODUs).
(5) Offshore Supply Vessels (OSVs) subject to 46 CFR chapter I,
subchapter L or I.
For facilities subject to 33 CFR part 105, this NPRM proposes the
following risk group classifications:
Risk Group A
(1) Facilities that handle Certain Dangerous Cargoes (CDC) in bulk.
(2) Facilities that receive vessels certificated to carry more than
1,000 passengers.
(3) Barge fleeting facilities that receive barges carrying CDC in
bulk.
Risk Group B
(1) Facilities that receive vessels that carry hazardous materials
other than CDC in bulk.
(2) Facilities that receive vessels subject to 46 CFR chapter I,
subchapter D, that carry any flammable or combustible liquid cargoes or
residues.
(3) Facilities that receive vessels certificated to carry 500 to
1,000 passengers.
(4) Facilities that receive towing vessels engaged in towing a
barge or barges carrying hazardous materials other than CDC in bulk,
crude oil, or towing vessels certificated to carry 500 to 1,000
passengers.
Risk Group C
(1) Facilities that receive vessels carrying non-hazardous cargoes
not otherwise included in Risk Groups A or B.
(2) Facilities that receive vessels certificated to carry less than
500 passengers.
(3) Facilities that receive towing vessels engaged in towing a
barge carrying non-hazardous cargoes or less than 500 passengers.
This NPRM proposes to classify all OCS facilities subject to 33 CFR
part 106 into Risk Group B.
As discussed more fully above in Section III.C., we used the AHP to
conduct a risk-based analysis of MTSA-regulated vessels and facilities.
We identified 68 distinct types of vessels and facilities based on
their purpose or operational description. We then assessed each of the
68 types of vessels and facilities using three factors: (1) Maximum
consequences to that vessel or facility resulting from a terrorist
attack; (2) criticality to the nation's health, economy, and national
security; and (3) utility of the TWIC in reducing risk.
For the first factor, we used the Coast Guard's MSRAM terrorism
risk-analysis tool to calculate the maximum potential consequence
resulting from the total loss of a target, factoring in injury and loss
of life, economic and environmental impact, symbolic effect, and
national security impact. We averaged these MSRAM consequences within
each of the 68 types to develop a standard consequence for each type.
For the second and third factors, we considered the impact of the
total loss of a vessel or facility beyond the immediate local
consequences, and the utility of the TWIC program in reducing a vessel
or facility's vulnerability to a terrorist attack.
Using the AHP, we combined the above three factors and developed an
overall risk ranking of vessels and facilities by type. At the end of
this process, types of vessels and facilities with similar scores were
combined into one of three risk groups. This NPRM proposes to classify
vessels and facilities into Risk Groups A, B, and C based on the AHP
risk rankings.
Upon further analysis of the data generated through the AHP
process, we note that certain types of facilities currently categorized
in Risk Group B have relatively high MSRAM consequence scores. These
facilities include petroleum refineries,\78\ non-CDC bulk hazardous
materials facilities, and petroleum storage facilities. Due to their
high MSRAM consequence scores, we are considering whether TWIC reader
requirements would be appropriate for these three types of facilities
and to include these types of facilities into Risk Group A. Note,
however, that despite the relatively high consequence scores for these
three facility types, they do not handle CDC in bulk. Like all Risk
Group B facilities, these three facility types pose less operational
risk than Risk Group A facilities because they do not handle CDC in
bulk. We are soliciting public comments on this issue. Specifically, we
request public comments on whether any or all of petroleum refineries,
non-CDC bulk hazardous materials facilities, and petroleum storage
facilities should be categorized in Risk Group A. We also seek public
comments on how to define these facilities for the purpose of this
rulemaking. Please see Section V., ``Regulatory Analyses'' below for a
discussion of the costs and benefits associated with this alternative.
---------------------------------------------------------------------------
\78\ Note that Risk Group A, as currently proposed in the NPRM,
captures certain petroleum refineries. In the NPRM, Risk Group A
includes refineries that handle Certain Dangerous Cargoes (CDCs) in
bulk or receive vessels that do the same. There are 16 such
refineries.
---------------------------------------------------------------------------
K. Movement Between Risk Groups
We propose to add 33 CFR 104.263(d) and 105.253(d) to address the
movement between risk groups by vessels and
[[Page 17816]]
facilities, based on the materials they are carrying or handling, or
the types of vessels they are receiving at any given time. These
regulatory provisions are designed to provide flexibility to owners and
operators of vessels and facilities that only meet the Risk Group A
criteria on a periodic basis. These provisions are not mandatory. The
owner or operator of such a vessel or facility could choose to maintain
its Risk Group A status, even during those periods when the vessel or
facility is not handling or carrying materials that meet the Risk Group
A criteria. However an owner or operator wishing to take advantage of
one of these provisions would be required to explain how the vessel or
facility would move between risk groups in an amended security plan.
The security plan would be required to account for the timing of such
movement, as well as how the owner or operator would comply with the
requirements of the higher- and lower-level risk groups, with
particular attention to the security measures to be taken when moving
from a lower-level risk group to a higher-level risk group.
L. Physical Placement of TWIC Readers
We propose to amend 33 CFR 104.265(a)(4) by requiring a vessel
owner or operator to place TWIC readers at the vessel's access points
only, regardless of whether the secure area encompasses the entire
vessel. Thus, even if the secure area does not encompass the entire
vessel (e.g., a passenger vessel consisting of secure areas and
passenger and employee access areas), TWIC readers would be required
only at the points of access to the vessel itself. TWIC-holders may be
granted unescorted access to the vessel's secure areas after the TWIC
has been verified, validated, and authenticated at a vessel access
point. TWIC-holders may then move from passenger/employee access areas
to secure areas without processing through a TWIC reader each time.
We propose to amend 33 CFR 105.255(a)(4) by requiring a facility
owner or operator to place TWIC readers at the access points to a
facility's secure areas. If the entire facility is designated as a
secure area, then TWIC readers would be required only at the facility's
access points. If the secure area does not encompass the entire
facility, then TWIC readers would be required at access points to the
secure areas.
We request additional comments from the public on the proposed
regulatory provisions regarding the placement of TWIC readers for
vessels and facilities.
M. Technical Amendments
We propose several technical amendments to remove references to
dates no longer relevant and to add or change cross-references within
the regulations to align with the proposed new or updated provisions.
These amendments appear at 33 CFR 101.514, 101.515(d)(2), 104.105(d),
104.115(c), 104.200(b), 104.260(d)(1), 104.265(d)(1), 104.265(e)(8),
104.265(f)(11), 104.267(a), 104.292(b), 104.292(e), 104.405(a)-(b),
105.110(b), 105.115(c)-(d), 105.200(b), 105.255(d)(1), 105.255(e)(8),
105.255(f)(10), 105.257(a), 105.290(b), 105.296(a)(4), 105.405(a)-(b),
106.110(d)-(e), 106.200(b), 106.260(d)(1), 106.260(e)(5),
106.260(f)(9), 106.262(a), and 106.405(a)-(b).
N. Privacy
When an individual's TWIC is scanned using a TWIC reader, the TWIC
reader captures limited information, including the TWIC-holder's FASC-N
as well as the date and time of the scan. The TWIC-holder's name would
also be captured in limited circumstances, depending on the type of
TWIC reader employed. For example, a TWIC reader only captures the
TWIC-holder's name when operating in ``contact'' mode,\79\ and only
after the TWIC-holder enters a 6-8 digit PIN.\80\ An integrated PACS
may also capture the name of the TWIC-holder.
---------------------------------------------------------------------------
\79\ ``Contact'' TWIC readers perform a scan when an individual
inserts a TWIC into a slot to provide direct contact between the
device and the computer chip imbedded in the TWIC.
\80\ As discussed in this preamble, the Coast Guard has observed
operational challenges and limited utility associated with PIN
usage. Therefore, the proposed rule would not require owners and
operators to check TWIC-holder PINs. Owners and operators who wish
to enhance access control would be allowed to require workers to
input PIN information. However, because of the noted operational
challenges and limited utility, the Coast Guard does not expect
widespread PIN usage. Therefore, the Coast Guard does not expect
TWIC readers to capture name information in most instances.
---------------------------------------------------------------------------
The proposed rule contains recordkeeping requirements for owners or
operators using TWIC readers. Owners and operators using TWIC readers,
with or without a PACS, would be required to maintain certain records
for at least 2 years. During that time, owners and operators would be
required to make those records available to the Coast Guard upon
request. Those records include, with respect to each individual granted
unescorted access to a secure area: (1) FASC-N; (2) date that access
was granted; (3) time that access was granted; and (4) if captured, the
name of the individual to whom access was granted.
If a TWIC reader or PACS captures the required data when the TWIC
is scanned, and can retain and reproduce that data, the recordkeeping
requirement would be met. Owners and operators would also be required
to maintain records to demonstrate that they have performed the
required card validity check using the CCL on each individual. The
proposed rule also contains a regulatory provision indicating that TWIC
reader records are SSI, and must be protected in accordance with 49 CFR
part 1520.\81\
---------------------------------------------------------------------------
\81\ In accordance with 49 U.S.C. 114(s), Sensitive Security
Information (SSI) is information obtained or developed in the
conduct of security activities, including research and development,
the disclosure of which TSA has determined would: (1) Constitute an
unwarranted invasion of privacy (including, but not limited to,
information contained in any personnel, medical, or similar file);
(2) reveal trade secrets or privileged or confidential information
obtained from any person; or (3) be detrimental to the security of
transportation. Part 1520 of Title 49 of the CFR generally requires
that SSI be properly marked and protected from unauthorized
disclosure. Unauthorized disclosure of SSI is grounds for a civil
penalty and other enforcement or corrective action by DHS, and
appropriate personnel actions for Federal employees. Corrective
action may include issuance of an order requiring retrieval of SSI
to remedy unauthorized disclosure or an order to cease future
unauthorized disclosure.
---------------------------------------------------------------------------
O. Public Comment
The Coast Guard invites comments on the risk-based approach to
categorizing facilities and vessels and the assumptions and estimates
used in the ``Preliminary Regulatory Analysis and Initial Regulatory
Flexibility Analysis,'' which is available in the public docket for
this rulemaking. Specifically, the Coast Guard requests comments on the
following:
1. We request comments from the public on the risk-based approach
to classifying facilities and vessels including the use of MSRAM in the
risk-based approach.
2. We request comments from the public regarding the incremental
security benefits of requiring TWIC readers for higher-risk facilities
and vessels. We request comments from the public on the security
benefits of performing TWIC-holder identification, validation, and
authentication via a TWIC reader instead of visual inspection.
3. We request comments from the public regarding the expected
lifespan and replacement cycle for TWIC readers.
4. We request comments from owners and operators of Risk Group A
facilities and vessels on the maintenance costs associated with the
proposed TWIC reader requirements.
5. We request comments from owners and operator of MTSA-regulated
vessels
[[Page 17817]]
and facilities already using TWIC readers, and whether the proposals in
this NPRM would require additional investments, e.g., new readers or
supporting infrastructure?
6. We request comments from owners and operators of MTSA-regulated
vessels and facilities on the additional hours of TWIC reader training
that would result from this proposed rule.
7. We request comments from the public regarding our estimates that
it would take 25 hours to create an addendum for each VSP and FSP.
8. We request comments from the public on potential delays due to
TWIC reader use and the associated cost estimates used in this proposed
rule.
9. We request comments from owners and operator of MTSA-regulated
vessels and facilities already using TWIC readers on the types and
frequency of TWIC reader failures.
10. We request comments from the public on the expected rates at
which TWICs will need to be replaced during implementation and all
subsequent years.
11. We request comments from owners and operators of Risk Group A
vessels and facilities regarding whether they intend to require the use
of PINs, how often will PINs be used, and in what scenarios. What
percentage of TWIC-holders do not currently remember their PIN, and
also how many TWIC-holders are anticipated to travel to an enrollment
center to retrieve their PIN?
12. We request comments from the public on the anticipated
frequency of the use of an escort and the availability of escorts to
provide access to secure areas in the cases of an invalid TWIC reader
transaction.
13. We request comments from the public on any additional costs or
benefits to TWIC reader requirements not accounted for in this NPRM.
14. We have clarified in the preamble to this NPRM that a facility
that receives Risk Group A vessels would be categorized as a Risk Group
A facility. We request additional comments from the public on specific
scenarios that might warrant further consideration of potential
regulatory requirements to address the interaction of vessels and
facilities in different risk groups.
15. We seek comments from the public on whether the additional
flexibility of being able to modify a facility's security footprint by
assigning different portions of the facility to different risk groups
is necessary or appropriate. Please be as specific as possible in
explaining how this would apply to your facility.
16. We request comments from the public regarding practical
scenarios in which a vessel might not be able to download necessary CCL
updates within the prescribed frequency (weekly or daily, depending on
MARSEC Level). Additionally, we request comments from the public
regarding the regulatory requirements that we should put in place when
vessels are in one of those scenarios. In those scenarios, should we
require the use of TWIC readers for identity verification, card
authentication, and card validity, even though the CCL might not have
been updated within the prescribed frequency? Should we require the
owner or operator to update the CCL at the next available opportunity?
What other alternatives should we consider?
17. We request comments from the public on the proposed regulatory
provisions regarding the placement of TWIC readers for vessels and
facilities, and how to minimize crewmembers from entering secure and/or
restricted areas if they do not hold a TWIC.
18. We request comments from the public regarding whether 7 days is
a sufficient amount of time in which to expect resolution of a typical
TWIC reader or communication systems malfunction.
19. We request comments from the public on the proposal to exempt
all vessels with 14 or fewer TWIC-holding crewmembers from TWIC reader
requirements, including whether 14 is an appropriate cut-off number.
Please explain and provide available data to support your comments.
20. We request comments from the public on whether any or all of
petroleum refineries, non-CDC bulk hazardous materials facilities, and
petroleum storage facilities should be categorized in Risk Group A. We
also request comments from the public on how to define these facilities
for the purpose of this rulemaking.
21. We request comments from the public on whether there is a
population of State-licensed vessel pilots that are not otherwise
required to obtain a TWIC because they access secure areas of MTSA-
regulated vessels.
22. We request comments from the public on the proposal for Risk
Group A to update CCL information at different frequencies (weekly or
daily) depending on MARSEC Level.
23. We request comments from the public on whether this rule may
help to reduce criminal activity at ports and on vessels. Please
describe any anecdotal evidence or data to support your comments.
24. We request comments from the public on the characterizations
and conclusions in the preamble to this NPRM of the TWIC Pilot, and how
we used the findings from the TWIC Pilot to inform the NPRM.
25. We request comments from the public on any other matters
relevant to the proposals in this NPRM and whether there are additional
data sources that we should consider. If there are, please include
information in your comments about these data sources and the reason
for their relevance.
V. Regulatory Analyses
We developed this proposed rule after considering numerous statutes
and executive orders related to rulemaking. Below we summarize our
analyses based on 13 of these statutes or executive orders.
A. Regulatory Planning and Review
Executive Orders 12866 (``Regulatory Planning and Review'') and
13563 (``Improving Regulation and Regulatory Review'') direct agencies
to assess the costs and benefits of available regulatory alternatives
and, if regulation is necessary, to select regulatory approaches that
maximize net benefits (including potential economic, environmental,
public health and safety effects, distributive impacts, and equity).
Executive Order 13563 emphasizes the importance of quantifying both
costs and benefits, of reducing costs, of harmonizing rules, and of
promoting flexibility. This proposed rule is a significant regulatory
action under section 3(f) of Executive Order 12866, Regulatory Planning
and Review. OMB has reviewed it under that Order. It requires an
assessment of potential costs and benefits under section 6(a)(3) of
that Order. A draft Assessment is available in the docket where
indicated under the ``Public Participation and Request for Comments''
section of this preamble. A summary of the Assessment follows:
We propose amending our regulations on certain MTSA-regulated
vessels and facilities to include requirements for electronic TWIC
readers to be used for access control for unescorted access to secure
areas.
The following table summarizes the costs and benefits of this
proposed rule.
[[Page 17818]]
Table 1--Summary of Costs and Benefits \82\
------------------------------------------------------------------------
Category NPRM
------------------------------------------------------------------------
Applicability..................... High-risk MTSA-regulated facilities
and high risk MTSA-regulated
vessels with greater than 14 TWIC-
holding crew.
Affected Population............... 38 vessels.
532 facilities.
Costs ($ millions, 7% discount $26.5 (annualized).
rate). $186.1 (10-year).
Costs (Qualitative)............... Time to retrieve or replace lost
PINs for use with TWICs.
Benefits (Qualitative)............ Standardization of access control
and credential verification
throughout industry.
Enhanced access control and security
at U.S. maritime facilities and
onboard U.S. flagged vessels.
Reduction of human error when
checking identification and manning
access points.
------------------------------------------------------------------------
In this NPRM, we propose to require owners and operators of certain
vessels and facilities regulated by the Coast Guard under 33 CFR
Chapter I, subchapter H, to use electronic readers designed to work
with TWIC as an access control measure. This NPRM also proposes
additional requirements associated with electronic TWIC readers,
including recordkeeping requirements for those owners and operators
required to use an electronic TWIC reader, and amendments to security
plans previously approved by the Coast Guard to incorporate TWIC
requirements.
---------------------------------------------------------------------------
\82\ For a more detailed discussion of costs and benefits, see
the full Preliminary Regulatory Analysis and Initial Regulatory
Flexibility Analysis available on the docket for this rulemaking.
Appendix G of that document outlines the costs by provision and also
discusses the complementary nature of the provisions and the
subsequent difficulty in distinguishing independent benefits from
individual provisions.
---------------------------------------------------------------------------
The proposals in this NPRM, once final, would enhance the security
of vessels, ports, and other facilities by ensuring that only
individuals who hold TWICs are granted unescorted access to secure
areas at those locations. It would also further implement the MTSA
transportation security card requirement, as well as the SAFE Port Act
electronic TWIC reader requirements.
We estimate that this proposed rule would specifically affect
owners and operators of MTSA-regulated vessels and facilities in Risk
Group A with additional costs. As previously discussed, Risk Group A
would consist of those vessels and facilities with highest consequence
for a TSI. Affected facilities in Risk Group A would include: (1)
Facilities that handle CDC in bulk; (2) Facilities that receive vessels
certificated to carry more than 1,000 passengers; and (3) Barge
fleeting facilities that receive barges carrying CDC in bulk. Affected
vessels in Risk Group A would include: (1) Vessels that carry CDC in
bulk; (2) Vessels certificated to carry more than 1,000 passengers; and
(3) Towing vessels engaged in towing barges subject to (1) or (2). In
addition, this proposal provides a TWIC Reader exemption for vessels
with 14 or fewer TWIC-holding crewmembers, further reducing the number
of affected vessels in Risk Group A.
Based on the risk-based hierarchy described in the preamble of this
NPRM and data from the Coast Guard's MISLE database, we estimate this
proposed rule would affect 532 facilities and 38 vessels with
additional costs. All of these facilities and vessels are in Risk Group
A.
To estimate the costs for this proposal, we use data from the TWIC
Pilot, which was broken down by facility type, to estimate a cost per
TWIC reader deployed for installation, integration, and PACS
integration, where applicable. By distilling the costs from the TWIC
Pilot down to a per TWIC reader cost by facility type, we are able to
smooth out the varied costs in the TWIC Pilot and effectively normalize
the TWIC Pilot costs before extrapolating out over the full affected
population of this rulemaking.
The primary cost driver for this proposed rule is the capital cost
associated with the purchase and installation of TWIC readers into
access control systems. These costs include the cost of TWIC reader
hardware and software, as well as costs associated with the
installation, infrastructure, and integration with a PACS. Operational
costs associated with this rulemaking, include security plan
amendments, recordkeeping, CCL updates, training, and system
maintenance. We also include operational and maintenance costs, which
we estimate to be five percent of the cost of the TWIC reader hardware
and software and are incurred annually. Table 2 shows the 10-year
period of analysis for the total costs by facility type. These facility
costs do not include costs associated with delays or replacement of
TWICs, which are discussed later. These estimates include capital
replacement costs for TWIC reader hardware and software beginning 5
years after implementation.
Table 2--10-Year Total Costs, by Facility Type *
[$ Millions]
----------------------------------------------------------------------------------------------------------------
Bulk Break bulk Large Small Mixed
Year liquid and solids Container passenger passenger use Total
----------------------------------------------------------------------------------------------------------------
1................................... $37.2 $2.7 $0.9 $11.3 $5.0 $5.0 $62.2
2................................... 38.1 2.8 0.9 11.6 5.2 5.2 63.8
3................................... 2.0 0.1 0.0 0.6 0.3 0.3 3.3
4................................... 2.0 0.1 0.0 0.6 0.3 0.3 3.3
5................................... 2.0 0.1 0.0 0.6 0.3 0.3 3.3
6................................... 14.1 1.0 0.3 4.3 1.9 1.9 23.6
7................................... 14.1 1.0 0.3 4.3 1.9 1.9 23.6
8................................... 2.0 0.1 0.0 0.6 0.3 0.3 3.3
9................................... 2.0 0.1 0.0 0.6 0.3 0.3 3.3
[[Page 17819]]
10.................................. 2.0 0.1 0.0 0.6 0.3 0.3 3.3
---------------------------------------------------------------------------
Total Undiscounted.............. 115.3 8.4 2.7 35.2 15.7 15.6 193.0
---------------------------------------------------------------------------
Total Discounted at 7%.......... 94.0 6.9 2.2 28.7 12.8 12.7 157.2
---------------------------------------------------------------------------
Total Discounted at 3%.......... 105.1 7.7 2.5 32.1 14.3 14.2 175.9
----------------------------------------------------------------------------------------------------------------
Note: Numbers may not total due to rounding.
* These facilities are regulated because they handle CDC or more than 1,000 passengers. In the U.S. marine
transportation system, facilities often handle a variety of commodities and provide a variety of commercial
services. These facility types have different costs based on physical characteristics, such as the number of
access points that would require TWIC readers, and other data received from the TWIC Pilot Study. See the
Preliminary Regulatory Analysis and Initial Regulatory Flexibility Analysis for details on different facility
types and data from the TWIC Pilot Study.
To account for potential opportunity costs associated with the
delays as a result of the TWIC reader requirements, we estimate a cost
of delay associated with failed reads.\83\ We provide a range of delay
costs based on different delays in seconds and also based on the number
of times a TWIC-holder may have their card read on a weekly basis. By
using a range of delay costs, we are able to account for multiple
scenarios where an invalid TWIC reader transaction would lead to the
use of a secondary processing operation, such as a visual inspection,
additional identification validation, or other provisions as set forth
in the FSP.\84\
---------------------------------------------------------------------------
\83\ Delays may result from operational, human- or weather-
related factors.
\84\ The Preliminary Regulatory Analysis and Initial Regulatory
Flexibility Analysis contains a discussion of the different failure
mode scenarios where an invalid TWIC reader transaction would lead
to potential delays and the use of secondary processing.
Table 3--Cost of Delays Due to Invalid Transaction per Year, for Risk Group A Facilities
--------------------------------------------------------------------------------------------------------------------------------------------------------
1 Read per 2 Reads per 3 Reads per 4 Reads per 5 Reads per
week week week week week Average
--------------------------------------------------------------------------------------------------------------------------------------------------------
6 Seconds............................................... $91,244 $182,489 $273,733 $364,977 $456,221 $273,733
14 Seconds.............................................. 212,903 425,807 638,710 851,613 1,064,517 638,710
30 Seconds.............................................. 456,221 912,443 1,368,664 1,824,886 2,281,107 1,368,664
60 Seconds.............................................. 912,443 1,824,886 2,737,328 3,649,771 4,562,214 2,737,328
120 Seconds............................................. 1,824,886 3,649,771 5,474,657 7,299,543 9,124,428 5,474,657
Average................................................. 699,539 1,399,079 2,098,618 2,798,158 3,497,697 2,098,618
--------------------------------------------------------------------------------------------------------------------------------------------------------
For the purposes of this analysis, we used the cost of delay
estimate of $2.1 million per year, which represents the average delay
across all iterations of delay times and TWIC reader transactions.
The use of TWIC readers would also increase the likelihood of
faulty TWICs (TWICs that are not machine readable) being identified and
the need for secondary screening procedures so affected workers and
operators can address these issues.\85\ If a TWIC-holder's card is
faulty and cannot be read, the TWIC-holder would need to travel to a
TWIC Enrollment Center to get a replacement TWIC, which results in
additional travel and replacement costs. To account for this, we
estimate a cost for a percentage of TWIC-holders to obtain replacement
TWICs.
---------------------------------------------------------------------------
\85\ Although current regulations require that TWICs be valid
and readable upon request by DHS or law enforcement personnel, we
anticipate that widespread use of TWIC readers will initially
identify more unreadable cards. However, we expect the regular use
of TWIC readers to ultimately serve to enhance compliance with
current TWIC card validity and readability requirements.
---------------------------------------------------------------------------
Based on information from the TWIC Pilot, we estimate that
approximately five percent of TWIC-holders associated with Risk Group A
would need to replace TWICs that cannot be read. We estimate that this
would cost approximately $262.37 per TWIC-holder to travel to a TWIC
Enrollment center and get a replacement TWIC.\86\ Overall, we estimate
that TWIC replacement would cost approximately $1.9 million per year
for TWIC transactions involving Risk Group A facilities. We assume this
is an annual cost, though we anticipate that the rate of TWIC
replacements will decrease as TWIC reader use increases, since the
number of unreadable TWICs initially identified will decrease as the
regular use of TWIC readers will serve to enhance TWIC validity and
readability.
---------------------------------------------------------------------------
\86\ This cost is explained in greater detail in the Preliminary
Regulatory Analysis and Initial Regulatory Flexibility Analysis. It
includes an estimated $202.37 for the average TWIC-holder to travel
to a TWIC Enrollment Center, cost to be away from work, wait time at
the Enrollment Center, and the $60 fee for a replacement TWIC. Some
TWIC-holders may not need to pay a replacement fee if the TWIC is
determined faulty as a result of the card production process.
However, these TWIC-holders would still need to travel to a TWIC
Enrollment Center to get a replacement TWIC.
---------------------------------------------------------------------------
Table 4 shows the average initial phase-in and annual recurring
costs per facility by facility type. This includes capital,
operational, delay, and TWIC replacement costs due to invalid TWIC
reader transactions. It does not, however, account for vessel costs.
Table 5 shows the total cost to facilities over the 10-year period of
analysis by facility type. This includes capital, operational, delay,
and TWIC replacement costs due to invalid TWIC reader transactions.
[[Page 17820]]
Table 4--Per Facility Cost, by Facility Type
--------------------------------------------------------------------------------------------------------------------------------------------------------
Break bulk and Large Small
Phase-in & recurring costs Bulk liquid solids Container passenger passenger Mixed use
--------------------------------------------------------------------------------------------------------------------------------------------------------
Initial Phase-in Cost................................... $256,267 $347,901 $604,007 $252,324 $164,011 $169,136
Annual Recurring cost................................... 14,531 19,727 34,248 14,307 9,300 9,590
Annual Recurring cost with Equipment Replacement........ 94,399 128,154 222,493 92,947 60,415 62,303
--------------------------------------------------------------------------------------------------------------------------------------------------------
Table 5--10-Year Total Cost Risk Group A Facilities, by Facility Type *
[$ Millions]
----------------------------------------------------------------------------------------------------------------
Bulk Break bulk Large Small
Year liquid and solids Container passenger passenger Mixed use Total
----------------------------------------------------------------------------------------------------------------
1........................... $38.3 $2.8 $0.9 $11.7 $5.2 $5.2 $64.2
2........................... 40.5 3.0 1.0 12.4 5.5 5.5 67.8
3........................... 4.3 0.3 0.1 1.3 0.6 0.6 7.3
4........................... 4.3 0.3 0.1 1.3 0.6 0.6 7.3
5........................... 4.3 0.3 0.1 1.3 0.6 0.6 7.3
6........................... 16.5 1.2 0.4 5.0 2.2 2.2 27.6
7........................... 16.5 1.2 0.4 5.0 2.2 2.2 27.6
8........................... 4.3 0.3 0.1 1.3 0.6 0.6 7.3
9........................... 4.3 0.3 0.1 1.3 0.6 0.6 7.3
10.......................... 4.3 0.3 0.1 1.3 0.6 0.6 7.3
-----------------------------------------------------------------------------------
Total Undiscounted...... 137.9 10.1 3.3 42.1 18.7 18.7 230.8
-----------------------------------------------------------------------------------
Total Discounted at 7%.. $109.6 $8.0 $2.6 $33.4 $14.9 $14.9 $183.3
-----------------------------------------------------------------------------------
Total Discounted at 3%.. $124.2 $9.1 $3.0 $37.9 $16.9 $16.8 $207.9
----------------------------------------------------------------------------------------------------------------
* This table includes the costs to facilities as well as additional costs such as delay, travel, and TWIC
replacement costs due to TWIC failures.
For the 38 Risk Group A vessels with greater than 14 TWIC-holding
crewmembers, we assume that each vessel will comply with the
requirements by purchasing two portable TWIC readers and deploying them
at the main access points of the vessel. We estimate the annualized
costs to vessels of this rulemaking to be approximately $0.4 million at
a 7 percent discount rate. These costs are shown in Table 6.
Table 6--Total Vessel Costs
[Risk Group A with more than 14 TWIC-holding crewmembers] *
----------------------------------------------------------------------------------------------------------------
Year Undiscounted 7% 3%
----------------------------------------------------------------------------------------------------------------
1............................................................... $1,257,866 $1,175,576 $1,221,229
2............................................................... 132,114 115,394 124,530
3............................................................... 132,114 107,845 120,903
4............................................................... 132,114 100,789 117,382
5............................................................... 132,114 94,196 113,963
6............................................................... 1,145,036 762,986 958,949
7............................................................... 132,114 82,274 107,421
8............................................................... 132,114 76,892 104,292
9............................................................... 132,114 71,861 101,255
10.............................................................. 132,114 67,160 98,305
-----------------------------------------------
Total....................................................... $3,459,815 $2,654,972 $3,068,229
-----------------------------------------------
Annualized.................................................. .............. 378,008 359,690
----------------------------------------------------------------------------------------------------------------
* Because the affected population is relatively small, we assume that all 38 vessels will comply within the
first year of implementation. However, owners and operators of these vessels would have 2 years to comply with
the rulemaking.
We estimate the annualized cost of this proposed rule to industry
over 10 years to be about $26.5 million at a 7 percent discount rate.
The main cost drivers of this proposed rule are the acquisition and
installation of TWIC readers and the maintenance of the affected
entity's TWIC reader system. Initial costs, which would be distributed
over a 2-year implementation phase, consist predominantly of the costs
to purchase and install TWIC readers and to integrate them with owners'
and operators' PACS. Annual costs would be driven by costs associated
with CCL updates, recordkeeping, training, system maintenance and
opportunity costs associated with failed reader transactions.
We estimated the present value average costs of this proposed rule
on industry for a 10-year period as summarized in Table 7. The costs
were discounted at 3 and 7 percent as set forth by guidance in OMB
Circular A-4.
[[Page 17821]]
Table 7--Total Industry Cost, Risk Group A
[$ Millions]
--------------------------------------------------------------------------------------------------------------------------------------------------------
Additional
Year Facility Vessel costs* Undiscounted 7% 3%
--------------------------------------------------------------------------------------------------------------------------------------------------------
1....................................................... $62.2 $1.3 $2.0 $65.4 $61.1 $63.5
2....................................................... 63.8 0.1 4.0 67.9 59.3 64.0
3....................................................... 3.3 0.1 4.0 7.4 6.0 6.8
4....................................................... 3.3 0.1 4.0 7.4 5.6 6.6
5....................................................... 3.3 0.1 4.0 7.4 5.3 6.4
6....................................................... 23.6 1.1 4.0 28.7 19.2 24.1
7....................................................... 23.6 0.1 4.0 27.7 17.3 22.6
8....................................................... 3.3 0.1 4.0 7.4 4.3 5.8
9....................................................... 3.3 0.1 4.0 7.4 4.0 5.7
10...................................................... 3.3 0.1 4.0 7.4 3.8 5.5
-----------------------------------------------------------------------------------------------
Total............................................... 193.0 3.5 37.8 234.2 186.0 210.9
-----------------------------------------------------------------------------------------------
Annualized.............................................. .............. .............. .............. .............. 26.5 24.7
--------------------------------------------------------------------------------------------------------------------------------------------------------
* This includes additional delay, travel, and TWIC replacement costs due to TWIC failures.
As this rule would require amendments to FSPs and VSPs, we estimate
a cost to the government to review these amendments during the
implementation period. We do not anticipate any additional annual cost
to the government from this rulemaking. For the total implementation
period, the total government cost would be $98,226 at a 7 percent
discount rate. Table 8 shows the 10-year government costs.
Table 8--Government Costs *
----------------------------------------------------------------------------------------------------------------
Total
FSP VSP undiscounted 7% 3%
----------------------------------------------------------------------------------------------------------------
1............................... $51,072 $6,299 $57,371 $53,617 $56,507
2............................... 51,072 0 51,072 44,608 50,208
3............................... 0 0 0 0 0
4............................... 0 0 0 0 0
5............................... 0 0 0 0 0
6............................... 0 0 0 0 0
7............................... 0 0 0 0 0
8............................... 0 0 0 0 0
9............................... 0 0 0 0 0
10.............................. 0 0 0 0 0
-------------------------------------------------------------------------------
Total....................... 102,144 6,299 108,443 98,226 103,840
-------------------------------------------------------------------------------
Annualized.................. .............. .............. .............. 13,985 12,173
----------------------------------------------------------------------------------------------------------------
* After implementation, we estimate there would be no additional government costs for plan review as additional
updates would be covered under existing plan review requirements and resources.
Based on the proposals in this NPRM and recent data, we estimated
the average first-year cost of this NPRM (combined industry and
government) to be about $61.2 million or $63.6 million at a 7 or 3
percent discount rate, respectively. The undiscounted annual recurring
cost for this proposal is approximately $7.4 million in every year
except years 6 and 7, due to equipment replacement 5 years after
implementation. The annualized cost of this proposed rule is $26.5
million at 7 percent and $24.7 million at 3 percent. The 10-year cost
to industry of this proposed rule is approximately $186.1 million at a
7 percent discount rate, and $211.0 million at a 3 percent discount
rate, respectively.
The benefits of the proposed rule include enhancing the security of
vessels, ports, and other facilities by ensuring that only individuals
who hold TWICs are granted unescorted access to secure areas at those
locations.
TWIC readers will make identification, validation, and verification
of individuals attempting to gain unescorted access to a secure area
more reliable and also will help to alleviate potential sources of
human error when checking credentials at access points. Identity
verification ensures that the individual presenting the TWIC is the
same person to whom the TWIC was issued. Card authentication ensures
that the TWIC is not counterfeit, and card validation ensures that the
TWIC has not expired or been revoked by TSA, or reported as lost,
stolen, or damaged. Furthermore, the standardization of TWIC readers on
a national scale could provide additional benefits in the form of
efficiency gains in implementing access control systems throughout port
facilities and nationally for companies operating in multiple
locations.
The proposed rule would also further implement the MTSA provision
for the transportation security card requirement, as well as the SAFE
Port Act electronic TWIC reader requirements. Due to current data
limitations, we do not estimate monetized benefits of this proposed
rule. We present qualitative benefits and a break-even analysis in this
preliminary analysis.
Break-even analysis is useful when it is not possible to quantify
the benefits
[[Page 17822]]
of a regulatory action.\87\ OMB Circular A-4 recommends a ``threshold''
or ``break-even'' analysis when non-quantified benefits are important
to evaluating the benefits of a regulation. Threshold or break-even
analysis answers the question, ``How small could the value of the non-
quantified benefits be (or how large would the value of the non-
quantified costs need to be) before the rule would yield zero net
benefits?'' \88\ For this rulemaking, we calculate a potential range of
break-even results from the estimated consequences of the three attack
scenarios that are most likely to be mitigated by the use of TWIC
readers. Because the primary function of the TWIC card and TWIC reader
is to enhance access control and identity verification and validation,
the attack scenarios evaluated within MSRAM to provide the consequence
data for this analysis were limited to the following:
---------------------------------------------------------------------------
\87\ In order to monetize the benefits from an anti-terrorism
regulation, we would need to know the incremental reduction in risk
of a successful terrorist attack that would accrue from the
regulatory action being analyzed. However, the data needed to
estimate this reduction in risk are not available.
\88\ U.S. Office of Management and Budget, Circular A-4,
September 17, 2003.
Truck Bomb
[cir] Armed terrorists use a truck loaded with explosives to attack
the target focal point. The terrorists will attempt to overcome guards
and barriers if they encounter them.
Terrorist Assault Team
[cir] A team of terrorists using weapons and explosives attack the
target focal point. Assume the terrorists have done prior planning and
surveillance, but have no insider support of assault.
Passenger/Passerby Explosives/Improvised Explosive Device
[cir] Terrorists exploit inadequate access control and detonate
carried explosives at the target focal point. Assume the terrorists
approach the target under cover of legitimate presence and are not
armed. Note: for this attack mode, terrorist is not an insider.
The focus on these three attack scenarios allows us to look at
specific attack scenarios that are most likely to be mitigated by the
use of TWIC readers. We base our analysis on the highest consequence
scenario of these three for each target. These scenarios were chosen
because they represent the scenarios most likely to benefit from the
enhanced access control afforded by TWIC readers, as they require
would-be attackers gaining access to the target in question. For these
three attack types, the aggressor would first need to gain access to
the facility to inflict maximum damage. Because the function of the
TWIC reader is to enhance access control, the deployment of TWIC
readers would increase the likelihood of identifying and denying access
to an individual attempting nefarious acts. The consequence of an
attack scenario is dependent on both the target and the attack mode.
The attack modes selected for this analysis, as described above, serve
to limit the potential maximum consequence compared to other potential
attack modes. Typically, one or more threat, vulnerability, or
consequence drivers will contribute significantly more to a target's
risk scores than others; these are known as major risk drivers. The
local COTPs document major risk drivers such as inherent limitations on
access control or the potential death and injury during the analysis
process.
For the break-even analysis, we estimate the consequences of these
three scenarios by estimating the number of casualties and serious
injuries that would occur had the attack been successful. To monetize
the value of fatalities prevented, we use the concept of ``value of a
statistical life'' (VSL), which is commonly used in safety and security
analyses. The VSL does not represent the dollar value of a person's
life, but the amount society would be willing to pay to reduce the
probability of death. We currently use a value of $6.3 million as an
estimate of VSL.\89\ This break-even analysis does not consider any
property damage, environmental damage, indirect or macroeconomic
consequences these terrorist attacks might cause. Consequently, the
economic impacts of the terrorist attacks estimated for this series of
break-even analyses would be higher if these other impacts were
considered. See Table 9 for the average maximum consequence \90\ of the
three attack scenarios on Group A facilities.
---------------------------------------------------------------------------
\89\ ``Valuing Mortality Risk Reductions in Homeland Security
Regulatory Analyses,'' prepared for the U.S. Customs and Border
Protection, June 2008. See www.regulations.gov, search on docket
USCG-2005-21869-003.
\90\ The average maximum consequence is the average of the
highest consequence attack scenario for each target in the
referenced target group. The average maximum consequence compares
the results from the three analyzed attack modes for each target and
averages the maximum consequence for all targets.
Table 9--Annual Risk Reduction and Attacks Averted Required for Costs to Equal Benefits, NPRM Alternative
--------------------------------------------------------------------------------------------------------------------------------------------------------
Annualized cost, Average
7% discount rate consequence ($ Required Frequency of attacks averted
($ millions) millions) reduction in risk
--------------------------------------------------------------------------------------------------------------------------------------------------------
NPRM Alternative............................. $26.5 $3,468.7 0.8% One every 130.9 years.
--------------------------------------------------------------------------------------------------------------------------------------------------------
As shown in Table 9, an avoided terrorist attack at an average
target is equivalent to $3,468.7 million in avoided consequences. Using
the estimated annualized cost of this regulation, the annual reduction
in the probability of attack to a Risk Group A facility that would just
equate avoided consequences with cost is less than 1 percent. To state
this in another way, if implementing this regulation would lower the
likelihood of a successful terrorist attack by more than 1 percent each
year, then this would be a socially efficient use of resources. This
proposed rule is estimated to cost approximately $26.5 million
annually. This proposed rule would be cost effective if it prevented
one terrorist attack with consequence equal to the average every 130.9
years ($3,468.7/$26.5). These small changes in risk reduction suggest
the potential benefits of the proposed rule justify the costs.
For the NPRM alternative, we assess that all Risk Group A
facilities will be required to install and use TWIC readers. On the
vessel side, we assess that all Risk Group A vessels with a crew size
greater than 14 TWIC-holding crewmembers will likely carry two portable
TWIC readers. For this alternatives analysis, we look at several
different ways to implement TWIC reader requirements based on the risk
group hierarchy. These alternatives include requiring TWIC readers for
Risk Group A and B facilities, along with Risk Group A vessels with
more than 14 TWIC-holding crewmembers, Risk
[[Page 17823]]
Group A and container facilities, along with Risk Group A vessels with
more than 14 TWIC-holding crewmembers, adding certain high-risk
facilities to Risk Group A, including petroleum refineries, non-CDC
bulk hazardous materials facilities, and petroleum storage facilities,
and Risk Group A facilities and all self-propelled Risk Group A
vessels. Table 10 summarizes the alternatives considered. The costs
displayed are the 10-year costs and the 10-year annualized cost, each
discounted at 7 percent.
Table 10--Regulatory Alternatives
--------------------------------------------------------------------------------------------------------------------------------------------------------
Annualized
Total cost ($ cost ($
Description Facility Vessel millions, at millions, at
population population 7% discount 7% discount
rate) rate)
--------------------------------------------------------------------------------------------------------------------------------------------------------
NPRM Alternative............................... All Risk Group A facilities and Risk 532 38 $186.1 $26.5
Group A vessels with more than 14
crewmembers.
Alternative 2.................................. All Risk Group A facilities and Risk 532 138 197.7 28.2
Group A vessels (except barges).
Alternative 3.................................. Risk Group A and all container 651 38 624.9 89.0
facilities and Risk Group A vessels
with more than 14 crewmembers.
Alternative 4.................................. All Risk Group A facilities, plus 1,174 38 419.6 59.7
additional high consequence facilities
including petroleum refineries, non-
CDC bulk hazardous materials
facilities, and petroleum storage
facilities, and Risk Group A vessels
with more than 14 crewmembers.
Alternative 5.................................. Risk Group A and B Facilities and Risk 2,173 38 991.6 141.2
Group A vessels with more than 14
crewmembers.
--------------------------------------------------------------------------------------------------------------------------------------------------------
When comparing alternatives, we also looked at the results of the
break-even analysis for these alternatives. As Table 11 shows, for the
overall average maximum consequence, the NPRM alternative would require
the lowest reduction in risk for the costs of the rule to be justified.
As the purpose of this rulemaking is to enhance security to mitigate a
TSI, we assess the break-even for the overall consequence of a TSI. It
is assumed that the highest consequence targets will be the most
attractive targets for potential terrorist attack.
Table 11--Summary of Required Risk Reduction and Attacks Averted by Regulatory Alternative, Overall
[In $ millions]
----------------------------------------------------------------------------------------------------------------
Annualized Required
cost, 7% Average reduction in Frequency of attacks averted
discount rate consequence risk (percent)
----------------------------------------------------------------------------------------------------------------
NPRM Alternative............... $26.5 $3,468.7 0.8 One every 130.9 years.
Risk Group A facilities and all 28.2 3,468.7 0.8 One every 123.2 years.
Risk Group A vessels, except
barges.
Risk Group A and all container 89.0 2,878.9 3.1 One every 32.4 years.
facilities and Risk Group A
vessels with more than 14
crewmembers.
All Risk Group A facilities, 59.7 1,776.9 3.4 One every 29.8 years.
plus additional high
consequence facilities
including petroleum
refineries, non-CDC bulk
hazardous materials
facilities, and petroleum
storage facilities, and Risk
Group A vessels with more than
14 crewmembers.
Risk Groups A and B facilities 141.2 1,143.3 12.4 One every 8.1 years.
and Risk Group A vessels with
more than 14 crewmembers.
----------------------------------------------------------------------------------------------------------------
NPRM Alternative--Risk Group A Facilities and Risk Group A Vessels With
More Than 14 TWIC-Holding Crewmembers
The analysis for this alternative is discussed in detail previously
in this section, as it is the alternative we propose in this NPRM.
Alternative 2--Risk Group A Facilities and All Risk Group A Vessels,
Except Barges
This alternative would require TWIC readers to be used at all Risk
Group A facilities and for all Risk Group A vessels, except barges.
This alternative would increase the burden on industry and small
entities by increasing the affected population from 38 vessels to 138
vessels. The number of facilities would be the same as in the NPRM
alternative. Under this alternative, annualized cost of this rulemaking
would increase from $26.5 million to $28.2 million, at a 7 percent
discount rate. The discounted 10-year costs would go from $186.1
million to $197.7 million. While this alternative does not lead to a
significant increase in costs, we reject it because requiring TWIC
readers on vessels with 14 or fewer TWIC-holding crewmembers is
unnecessary, as crews with that few members are known to all on the
vessel. This crewmember limit was proposed in the ANPRM and was based
on a recommendation from TSAC. In an effort to reduce unnecessary
burden and minimize costs of this rulemaking, we estimate this is the
most efficient way to regulate Risk Group A vessels. See the discussion
in the NPRM on ``Recurring
[[Page 17824]]
Unescorted Access'' and ``TWIC Reader Requirements on Vessels'' for
more details.
Alternative 3--Risk Group A and All Container Facilities and Risk Group
A Vessels With More Than 14 TWIC-Holding Crewmembers
For this alternative, we assumed that only those facilities in Risk
Group A, as previously defined, and all container facilities will
require TWIC readers. This alternative would increase the burden on
industry and small entities by increasing the affected population from
532 facilities to 651 facilities. Under this scenario, the annualized
cost of this rulemaking would increase from $26.5 million to $89.0
million, at a 7 percent discount rate. The discounted 10-year costs
would go from $186.1 million to $624.9 million. The inclusion of
container facilities would also potentially have adverse environmental
impacts due to increased air emissions due to longer wait (``cueing'')
times and congestion at facilities.
We considered this alternative because container facilities are
perceived to pose a unique threat to the maritime sector due to the
transfer risk associated with containers. As discussed in the preamble
of this NPRM, many of the high-risk threat scenarios at container
facilities would not be mitigated by TWIC readers. The costs for TWIC
readers at container facilities would not be justified by the amount of
potential risk reduction at these facilities. While container
facilities pose an increased transfer risk (i.e., there is a greater
risk of a threat coming through a container facility and inflicting
harm or damage elsewhere than with any other facility type), such
threats are not mitigated by the use of TWIC readers. Furthermore, the
use of TWIC readers, or other access control features, would not
mitigate the threat associated with the contents of a container. The
TWIC reader serves as an additional access control measure, but would
not improve screening of cargoes for dangerous substances or devices.
We request data and informed input regarding this assessment.
Alternative 4--Adding Certain High Consequence Facilities to Risk Group
A (These Additional Facilities To Include Petroleum Refineries, Non-CDC
Bulk Hazardous Materials Facilities, and Petroleum Storage Facilities)
For this alternative, we moved three facility categories--petroleum
refineries, non-CDC bulk hazardous materials facilities, and petroleum
storage facilities--into Risk Group A from Risk Group B based on the
average maximum consequence for these facility types. This alternative
would increase the burden on industry by increasing the affected
population from 532 facilities to 1,174 facilities. Under this
scenario, the annualized cost of this rulemaking would increase from
$26.5 million to $59.7 million, at a 7 percent discount rate. The
discounted 10-year costs would go from $186.1 million to $419.6
million.
We considered this alternative based on the high MSRAM consequence
scores associated with these three facility types, as well as due to
the perception that petroleum facilities pose a greater security risk
than other facility types. Despite the high MSRAM consequence scores
for these facility types, the overall risk scores as determined in the
analytical hierarchy process (AHP) were not as high as those in the
current Risk Group A, and therefore, we rejected this alternative and
maintained the AHP-based risk groupings.
Alternative 5--Risk Group A and Risk Group B Facilities and Risk Group
A Vessels With More Than 14 Crewmembers
Alternative 5 would require TWIC readers to be used at all Risk
Group A and Risk Group B facilities, and Risk Group A vessels with
greater than 14 TWIC-holding crewmembers. This alternative would
increase the burden on industry and small entities by increasing the
affected population from 532 facilities to 2,173 facilities. This
increase in facilities would extend the affected population to
facilities that fall under the second risk tier. Under this
alternative, annualized cost of this rulemaking would increase from
$26.5 million to $141.2 million, at a 7 percent discount rate. The
discounted 10-year costs would go from $186.1 million to $991.6
million. Based on a recent study by HSI, as discussed in the preamble
to this NPRM, the difference in risk between facilities in Risk Groups
A and B is clearly defined, indicating that the two risk groups do not
require the same level of TWIC requirements. Further, as discussed in
the benefits section of this analysis, the break-even point, or the
amount of risk that would need to be reduced for costs to equal
benefits, for this alternative is much higher than that of the NPRM
alternative. Moreover, we understand many of the comments opposing TWIC
reader requirements represented the interests of owners and operators
of vessels or facilities assigned to Risk Group B. For these reasons,
we rejected this alternative.
The provisions in this proposed rule are taken in order to meet
requirements set forth in MTSA and the SAFE Port Act. The proposal, as
presented, represents the lowest cost alternative, as discussed above.
We have focused this rulemaking on the highest risk population so as to
reduce the impacts of this rule as much as possible. Also, we have
created a performance standard that allows the affected population to
implement the requirements in a manner most conducive to their own
business practices. By allowing for flexibilities, such as the use of
fixed or portable readers, and removing vessels with 14 or fewer TWIC-
holding crewmembers from the requirements, we have reduced potential
burden on all entities, including small entities. Furthermore, we
believe that providing any additional relief for small entities would
conflict with the purpose of this rulemaking, as the objective is to
enhance access control and reduce risk of a TSI. Providing relief of
the proposed requirements based on entity size would contradict that
stated purpose and leave small entities, which may possess as great a
risk as entities that exceed the Small Business Administration (SBA)
size standards, more vulnerable to a TSI.
B. Small Entities
Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have
considered whether this proposed rule would have a significant economic
impact on a substantial number of small entities. The term ``small
entities'' comprises small businesses, not-for-profit organizations
that are independently owned and operated and are not dominant in their
fields, and governmental jurisdictions with populations of fewer than
50,000. An Initial Regulatory Flexibility Analysis discussing the
impacts of this proposed rule on small entities is available in the
docket where indicated under the ADDRESSES Section.
For this proposed rule, we estimated mandatory TWIC reader
requirement costs for approximately 38 vessels and 532 facilities based
on the risk assessment hierarchy and current data from the Coast
Guard's MISLE database. Of these 532 facilities that would be affected
by the TWIC reader requirements, we found 311 unique owners. Among
these 311 unique owners, there were 31 government-owned entities, 119
companies that exceeded SBA small business size standards, 88 companies
considered small by SBA size standards, and 73 companies for which no
information was available. For the purposes of this analysis, we
consider all entities for which information was not available to
[[Page 17825]]
be small. There were no not-for-profit entities in our affected
population. Of the 31 government jurisdictions that would be affected
by this proposed rule, 24 exceed the 50,000 population threshold as
defined by the Regulatory Flexibility Act to be considered small and
seven have government revenue levels such that there would not be an
impact greater that 1 percent of government revenue.\91\
---------------------------------------------------------------------------
\91\ ``Government revenues'' used for this analysis include tax
revenues, and in some cases, operating revenues for government owned
waterfront facilities.
---------------------------------------------------------------------------
We were able to find revenue information for 64 of the 88
businesses deemed small by SBA size standards.\92\ We then determined
the impacts of the proposed rule on these companies by comparing the
cost of the proposed rule to the average per facility cost of this
rulemaking. To determine the average per facility cost, we average the
per facility cost for all facility types using the same cost per
facility type breakdown as used to assess the costs of this proposal.
We then found what percent impact on revenue the proposed rule would
have based on implementation costs (including capital costs) and annual
recurring costs (including CCL updates, recordkeeping, and training).
We estimate these costs to be, on average $233,736 per facility during
the implementation period and $6,186 per facility in annual recurring
cost.\93\ We base our impact analysis on average cost to regulated
entities due to the flexibility afforded by this proposed rule to
individual facilities to determine how best to implement TWIC reader
requirements.\94\ Table 12 shows the potential revenue impacts for
small businesses impacted by this rulemaking.
---------------------------------------------------------------------------
\92\ SBA small business standards are based on either company
revenue or number of employees. Many companies in our sample have
employee numbers determining them small, but we were unable to find
annual revenue data to pair with the employee data.
\93\ These are weighted averages, based on the per facility cost
displayed in Table 4 and the number of facilities by type.
\94\ We do not know how a specific facility with comply with
this rulemaking in regards to type and number of readers installed,
number of personnel requiring training at a given facility, etc.
Table 12--Revenue Impacts on Affected Small Businesses--Facilities
----------------------------------------------------------------------------------------------------------------
Impacts from implementation Impacts from recurring annual
costs costs
Revenue impact range ---------------------------------------------------------------
Number of Percent of Number of Percent of
entities entities entities entities
----------------------------------------------------------------------------------------------------------------
0% < Impact <= 1%............................... 27 42 57 89
1% < Impact <= 3%............................... 10 16 6 9
3% < Impact <= 5%............................... 5 8 1 2
5% < Impact <= 10%.............................. 8 13 0 0
Above 10%....................................... 14 22 0 0
---------------------------------------------------------------
Total....................................... 64 100 64 100
----------------------------------------------------------------------------------------------------------------
The greatest impact is expected to occur during the implementation
phase when 58 percent of small businesses that we were able to find
revenue data on will experience an impact of greater than 1 percent,
and 22 percent of small businesses that we were able to find revenue
data on will experience an impact greater than 10 percent. After
implementation, the impacts decrease and 89 percent of affected small
businesses will see an impact less than 1 percent. We expect the
revenue impacts for years with equipment replacement to be between
those for implementation and annual impacts. During those years with
equipment replacement, we estimate that approximately 44 percent of
businesses would see an impact greater than 1 percent, and 13 percent
would see an impact greater than 10 percent.\95\
---------------------------------------------------------------------------
\95\ We estimate an average cost per facility in years with
equipment replacement to be $48,110.
---------------------------------------------------------------------------
For vessels, we found that for the 38 vessels that would be
affected by this proposed rule, there were 10 unique owners, all of
which were businesses. We were able to find employee and revenue data
for all but one of the companies. Out of the nine companies for which
we were able to find data, only two qualified as small businesses by
SBA size standards. We estimate these costs to be, on average $33,102
per vessel during the implementation period, and $3,477 per vessel in
annual cost. We base our impact analysis on average cost per vessel due
to the flexibility afforded to vessels and the subsequent assumption
that all vessels will deploy, on average, two portable TWIC readers.
Both of these businesses would experience impacts less than 1 percent
of revenue for both previously mentioned impact analyses.
If you think that your business, organization, or governmental
jurisdiction qualifies as a small entity and that this proposed rule
would have a significant economic impact on it, please submit a comment
to the Docket Management Facility at the address under ADDRESSES. In
your comment, explain why you think it qualifies and how and to what
degree this proposed rule would economically affect it.
C. Assistance for Small Entities
Under section 213(a) of the Small Business Regulatory Enforcement
Fairness Act of 1996 (Public Law 104-121), we want to assist small
entities in understanding this proposed rule so that they can better
evaluate its effects on them and participate in the rulemaking. If the
proposed rule would affect your small business, organization, or
governmental jurisdiction and you have questions concerning its
provisions or options for compliance, please consult Lieutenant
Commander Loan T. O'Brien, Coast Guard, telephone 202-372-1133. We will
not retaliate against small entities that question or complain about
this proposed rule or any policy or action of the Coast Guard.
D. Collection of Information
This proposed rule would call for a collection of information under
the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520). As defined
in 5 CFR 1320.3(c), ``collection of information'' comprises reporting,
recordkeeping, monitoring, posting, labeling, and other similar
actions. The title and description of the information collection, a
description of those who must collect the information, and an estimate
of the total annual burden follow. The estimate covers the time for
reviewing instructions, searching existing sources of data, gathering
and maintaining the data needed, and
[[Page 17826]]
completing and reviewing the collection.
Under the provisions of the proposed rule, the affected facilities
and vessels would be required to update their FSPs and VSPs, as well as
create and maintain a system of recordkeeping within 2 years of
promulgation of the final rule. This requirement would be added to an
existing collection with OMB control number 1625-0077.
Title: Security Plans for Ports, Vessels, Facilities, Outer
Continental Shelf Facilities and Other Security-Related Requirements
OMB Control Number: 1625-0077.
Summary of the Collection of Information: This information
collection is associated with the maritime security requirements
mandated by MTSA. Security assessments, security plans, and other
security-related requirements are found in 33 CFR chapter I, subchapter
H. The proposed rule would require certain vessels and facilities to
use electronic readers designed to work with the TWIC as an access
control measure. Affected owners and operators would also face
requirements associated with electronic TWIC readers, including
recordkeeping requirements for those owners and operators required to
use an electronic TWIC reader, and security plan amendments to
incorporate TWIC requirements.
Need for Information: The information is necessary to show evidence
that affected vessels and facilities are complying with the TWIC reader
requirements.
Proposed Use of Information: We would use this information to
ensure that facilities and vessels are properly implementing and
utilizing TWIC readers.
Description of the Respondents: The respondents are owners and
operators of certain vessels and facilities regulated by the Coast
Guard under 33 CFR Chapter I, subchapter H.
Number of Respondents: The adjusted number of respondents is 13,825
for vessels, 3,270 for facilities, and 56 for OCS facilities. Of these
3,270 facilities and 13,825 vessels, approximately 532 facilities that
are considered ``high risk'' would be required to modify their existing
FSPs and approximately 38 vessels would be required to modify their
VSPs to account for the TWIC reader requirements. These same
populations would be required to create and maintain recordkeeping
systems as well.
Frequency of Response: The FSP and VSP would need to be amended
within 2 years of promulgation to include TWIC reader-related
procedures. Recordkeeping requirements would need to be met along a
similar timeline.
Burden of Response: The estimated burden for facilities would be
17,290 hours in the first year, 18,886 hours in the second year and
3,192 hours in the third year and all subsequent years. The burden for
vessels would be 2,470 burden hours in year one, and 288 burden hours
for all subsequent years. This includes an estimated 25 burden hours to
amend the FSP or VSP, along with an implementation period burden of 40
hours and an annual burden of 6 hours for designing and maintaining a
system of records for each facility or vessel, to include recordkeeping
related to the CCL.
Estimate of Total Annual Burden
Facilities: The estimated burden over the 2-year implementation
period for facilities is 25 hours per FSP amendment. Since there are
currently 532 facilities that will need to amend their FSPs, the total
burden on facilities would be 13,300 hours (532 FSPs x 25 hours per
amendment) during the 2-year implementation period, or 6,650 hours each
of the first 2 years. Facilities would also face a recordkeeping burden
of 21,280 hours during the 2-year implementation period (532 facilities
x 40 hours per recordkeeping system), or 10,640 hours each year over
the first 2 years. There would also be an annual recordkeeping burden
of 3,192 hours (532 facilities x 6 hours per year), starting in the
third year. In the second year, the 266 facilities that implemented in
the first year would incur the 6 hours of annual recordkeeping, at a
burden of 1,596 (266 facilities x 6 hours). The total burden for
facilities is estimated at 17,290 (6,650 + 10,640) in Year 1, 18,886 in
Year 2 (6,650 + 10,640 + 1,596), and 3,192 in Year 3.
Vessels: For the 38 vessels, the burden in the first year would be
950 hours (38 VSPs x 25 hour per amendment). Vessels would also face a
recordkeeping burden of 1,520 hours during the 1-year implementation
period (38 vessels x 40 hours per recordkeeping system). There would
also be an annual recordkeeping burden of 228 hours (38 vessels x 6
hours per year). The total burden for vessels is estimated at 2,470
(950 + 1,520) in Year 1 and 228 hours in Years 2 and 3.
Total: The total additional burden due to the TWIC Reader rule is
estimated at 19,760 (2,470 for vessels and 17,290 for facilities) in
Year 1, 19,114 (228 for vessels and 18,886 for facilities) in Year 2,
and 3,420 (228 for vessels and 3,192 for facilities) in Year 3. The
current annual burden listed in this collection of information is
1,108,043. The new burden, as a result of this proposed rulemaking, in
Year 1 is 1,127,803 (1,108,043 + 19,760). The new burden, as a result
of this proposed rule, is 1,127,803 (1,108,043 + 19,760). The total
change in monetized burden in Year 1 is approximately $1.3 million. The
total burden in Year 2 is 1,127,157 (1,108,043 + 19,114) and in Year 3
is 1,111,463 (1,108,043 + 3,420). The average annual additional burden
across the 3 years is 14,098 and the average total burden is 1,122,141
(14,098 + 1,108,043).
As required by the Paperwork Reduction Act of 1995 (44 U.S.C.
3507(d)), we have submitted a copy of this proposed rule to OMB for its
review of the collection of information.
We ask for public comment on the proposed collection of information
to help us determine how useful the information is--whether it can help
us perform our functions better, whether it is readily available
elsewhere, how accurate our estimate of the burden of collection is,
how valid our methods for determining burden are, how we can improve
the quality, usefulness, and clarity of the information, and how we can
minimize the burden of collection.
If you submit comments on the collection of information, submit
them both to OMB and to the Docket Management Facility where indicated
under ADDRESSES, by the date under DATES.
You need not respond to a collection of information unless it
displays a currently valid control number from OMB. Before the
requirements for this collection of information become effective, we
will publish a notice in the Federal Register of OMB's decision to
approve, modify, or disapprove the proposed collection.
E. Federalism
A rule has implications for Federalism under Executive Order 13132,
Federalism, if it has a substantial direct effect on the States, on the
relationship between the national government and the States, or on the
distribution of power and responsibilities among the various levels of
government. This proposed rule has been analyzed in accordance with the
principles and criteria in Executive Order 13132, and as discussed
earlier in the preamble, it has been determined that this proposed rule
does have Federalism implications or a substantial direct effect on the
States.
This proposed rule would update existing regulations by creating a
risk-based analysis of MTSA-regulated vessels and facilities. Based on
this analysis, each vessel or facility is
[[Page 17827]]
classified according to its risk level, which then determines whether
the vessel or facility would be required to use TWIC readers.
Additionally, this proposed rule would amend recordkeeping requirements
and add requirements to amend security plans in order to ensure
compliance.
It is well-settled that States may not regulate in categories
reserved for regulation by the Coast Guard. It is also well-settled,
now, that all of the categories covered in 46 U.S.C. 3306, 3703, 7101,
and 8101 (design, construction, alteration, repair, maintenance,
operation, equipping, personnel qualification, and manning of vessels),
as well as the reporting of casualties and any other category in which
Congress intended the Coast Guard to be the sole source of a vessel's
obligations, are within fields foreclosed from regulation by the States
or local governments. (See the decision of the Supreme Court in the
consolidated cases of United States v. Locke and Intertanko v. Locke,
529 U.S. 89, 120 S.Ct. 1135 (March 6, 2000).)
The Coast Guard believes the Federalism principles articulated in
Locke apply to this proposed rule since it would require certain MTSA-
regulated vessels to carry TWIC readers (i.e., required equipment), and
to conform to recordkeeping and security plan requirements. Therefore,
States and local governments are foreclosed from regulating within this
field. This principle also applies to MTSA-regulated facilities, at
least insofar as a State or local law or regulation applicable to these
same facilities for the purpose of their protection, would conflict
with a Federal regulation (i.e., it would either actually conflict or
would frustrate an overriding Federal need for uniformity).
Although State and local governments are foreclosed from regulating
within this specific field, the Coast Guard recognizes the key role
that State and local governments may have in making regulatory
determinations. Additionally, Sections 4 and 6 of Executive Order 13132
require that for any rules with preemptive effect, the Coast Guard
shall provide elected officials of affected State and local governments
and their representative national organizations the notice and
opportunity for appropriate participation in any rulemaking
proceedings, and to consult with such officials early in the rulemaking
process. Therefore, we invite affected State and local governments and
their representative national organizations to indicate their desire
for participation and consultation in this rulemaking process by
submitting comments to this notice. In accordance with Executive Order
13132, the Coast Guard will provide a Federalism impact statement to
document: (1) The extent of the Coast Guard's consultation with State
and local officials that submit comments in response to this proposed
rule; (2) a summary of the nature of any concerns raised by State or
local governments and the Coast Guard's position thereon; and (3) a
statement of the extent to which the concerns of State and local
officials have been met.
F. Unfunded Mandates Reform Act
The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538)
requires Federal agencies to assess the effects of their discretionary
regulatory actions. In particular, the Act addresses actions that may
result in the expenditure by a State, local, or tribal government, in
the aggregate, or by the private sector of $100,000,000 (adjusted for
inflation) or more in any one year. Though this proposed rule would not
result in such an expenditure, we do discuss the effects of this
proposed rule elsewhere in this preamble.
G. Taking of Private Property
This proposed rule would not cause a taking of private property or
otherwise have taking implications under Executive Order 12630,
Governmental Actions and Interference with Constitutionally Protected
Property Rights.
H. Civil Justice Reform
This proposed rule meets applicable standards in sections 3(a) and
3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize
litigation, eliminate ambiguity, and reduce burden.
I. Protection of Children
We have analyzed this proposed rule under Executive Order 13045,
Protection of Children from Environmental Health Risks and Safety
Risks. Though this proposed rule is a ``significant regulatory action''
under Executive Order 12866, it would not create an environmental risk
to health or a risk to safety that might disproportionately affect
children.
J. Indian Tribal Governments
This proposed rule does not have tribal implications under
Executive Order 13175, Consultation and Coordination with Indian Tribal
Governments, because it would not have a substantial direct effect on
one or more Indian tribes, on the relationship between the Federal
Government and Indian tribes, or on the distribution of power and
responsibilities between the Federal Government and Indian tribes.
K. Energy Effects
We have analyzed this proposed rule under Executive Order 13211,
Actions Concerning Regulations That Significantly Affect Energy Supply,
Distribution, or Use. We have determined that it is not a ``significant
energy action'' under that order. Though it is a ``significant
regulatory action'' under Executive Order 12866, it is not likely to
have a significant adverse effect on the supply, distribution, or use
of energy. The Administrator of the Office of Information and
Regulatory Affairs has not designated it as a significant energy
action. Therefore, it does not require a Statement of Energy Effects
under Executive Order 13211.
L. Technical Standards
The National Technology Transfer and Advancement Act (NTTAA) (15
U.S.C. 272 note) directs agencies to use voluntary consensus standards
in their regulatory activities unless the agency provides Congress,
through OMB, an explanation of why using these standards would be
inconsistent with applicable law or otherwise impractical. Voluntary
consensus standards are technical standards (e.g., specifications of
materials, performance, design, or operation; test methods; sampling
procedures; and related management systems practices) that are
developed or adopted by voluntary consensus standards bodies.
This proposed rule does not use technical standards. Therefore, we
did not consider the use of voluntary consensus standards.
The Federal government is developing the TWIC reader standards.
Under NTTAA and OMB Circular A-119, NIST is tasked with the role of
encouraging and coordinating Federal agency use of voluntary consensus
standards and participation in the development of relevant standards,
as well as promoting coordination between the public and private
sectors in the development of standards and in conformity assessment
activities. NIST is assisting TSA with the establishment of a
conformity assessment framework in support of a QTL for identity and
privilege credential products, to be managed by TSA. NIST is also
assisting TSA with the establishment of a testing suite for qualifying
products in conformity to specified standards and TSA specifications.
If you are aware of voluntary consensus standards that might apply
to this rule, please send a comment to the
[[Page 17828]]
docket using one of the methods under ADDRESSES. In your comment,
please explain why you disagree with our analysis and/or identify
voluntary consensus standards we have not listed that might apply.
M. Environment
We have analyzed this proposed rule under DHS Management Directive
023-01 and Commandant Instruction M16475.lD, which guide the Coast
Guard in complying with the National Environmental Policy Act of 1969
(NEPA) (42 U.S.C. 4321-4370f), and have made a preliminary
determination that this action is not likely to have a significant
effect on the human environment. A ``Draft Programmatic Environmental
Assessment'' (DPEA) and a draft ``Finding of No Significant Impact''
(FONSI) are available in the docket where indicated under the ``Public
Participation and Request for Comments'' section of this preamble. Our
analysis indicates that TWIC reader operations would have insignificant
direct, indirect or cumulative impacts on environmental resources, with
special attention to potential air quality issues. We encourage the
public to submit comments on the DPEA and draft FONSI.
List of Subjects
33 CFR Part 101
Harbors, Incorporation by reference, Maritime security, Reporting
and recordkeeping requirements, Security measures, Vessels, Waterways.
33 CFR Part 104
Maritime security, Reporting and recordkeeping requirements,
Security measures, Vessels.
33 CFR Part 105
Maritime security, Reporting and recordkeeping requirements,
Security measures.
33 CFR Part 106
Continental shelf, Maritime security, Reporting and recordkeeping
requirements, Security measures.
For the reasons discussed in the preamble, we propose to amend 33
CFR parts 101, 104, 105, and 106 as follows:
PART 101--MARITIME SECURITY: GENERAL
0
1. The authority citation for part 101 continues to read as follows:
Authority: 33 U.S.C. 1226, 1231; 46 U.S.C. Chapter 701; 50
U.S.C. 191, 192; Executive Order 12656, 3 CFR 1988 Comp., p. 585; 33
CFR 1.05-1, 6.04-11, 6.14, 6.16, and 6.19; Department of Homeland
Security Delegation No. 0170.1.
0
2. Amend Sec. 101.105, as follows:
0
a. Add, in alphabetical order, definitions for the terms ``Biometric
match'', ``Canceled Card List (CCL)'', ``Card authentication'', ``Card
Holder Unique Identifier (CHUID)'', ``Card validity check'', ``Mobile
Offshore Drilling Unit (MODU)'', ``Offshore Supply Vessel (OSV)'',
``Physical Access Control System (PACS)'', ``Risk Group'', and ``TWIC
reader''; and
0
b. Remove the definition for the term ``Recurring unescorted access''.
The additions read as follows:
Sec. 101.105 Definitions.
* * * * *
Biometric match means a confirmation that: one of the two biometric
(fingerprint) templates stored in the Transportation Worker
Identification Credential (TWIC) matches the scanned fingerprint of the
person presenting the TWIC; or the alternate biometric stored in a PACS
matches the corresponding biometric of the person.
* * * * *
Canceled Card List (CCL) means the list of TWIC Federal Agency
Smart Credential-Numbers (FASC--Ns) that have been invalidated or
revoked because TSA has determined that the TWIC-holder may pose a
security threat, or because the card has been reported lost, stolen, or
damaged.
* * * * *
Card authentication means electronic verification that the TWIC is
a valid credential issued by TSA, containing the Card Holder Unique
Identifier (CHUID) and the correct digital signature.
Card Holder Unique Identifier (CHUID) means the standardized data
object comprised of the FASC--N, globally unique identifier, expiration
date, and certificate used to validate the data integrity of other data
objects on the credential.
Card validity check means electronic verification that the TWIC has
not been invalidated or revoked by checking the TWIC against the
Canceled Card List or, for vessels and facilities assigned to Risk
Group B or C according to Sec. Sec. 104.263 or 105.253 of this
subchapter, by verifying that the expiration date on the face of the
TWIC has not passed.
* * * * *
Mobile Offshore Drilling Unit (MODU) means the same as defined in
33 CFR 140.10.
* * * * *
Offshore Supply Vessel (OSV) means the same as defined in 46 CFR
125.160.
* * * * *
Physical Access Control System (PACS) means a system, including
devices, personnel, and policies, that controls access to and within a
facility or vessel.
* * * * *
Risk Group means the risk ranking assigned to a vessel, facility,
or OCS facility according to Sec. Sec. 104.263, 105.253, or 106.258 of
this subchapter, for the purpose of the TWIC requirements in this
subchapter.
* * * * *
TWIC reader means an electronic device listed on TSA's Qualified
Technology List (QTL) and used to verify and validate: the authenticity
of a TWIC; the identity of the TWIC-holder as the legitimate bearer of
the credential; that the TWIC is not expired; and that the TWIC is not
on the CCL. TSA's QTL of acceptable TWIC readers may be accessed online
at http://(TBD).
* * * * *
0
3. Add Sec. 101.112 to read as follows:
Sec. 101.112 Federalism.
(a) The regulations in 33 CFR parts 101, 103, 104, and 106 have
preemptive effect over State or local regulation within the same field.
(b) The regulations in 33 CFR part 105 have preemptive effect over
State or local regulations insofar as a State or local law or
regulation applicable to the facilities covered by part 105 would
conflict with the regulations in part 105, either by actually
conflicting or frustrating an overriding Federal need for uniformity.
Sec. 101.514 [Amended]
0
4. In Sec. 101.514, remove paragraph (e).
0
5. Revise Sec. 101.515(d)(2) to read as follows:
Sec. 101.515 TWIC/Personal identification.
* * * * *
(d) * * *
(2) Each person who has been issued or who possesses a TWIC must
allow their TWIC to be read by a TWIC reader and must submit their
reference biometric, such as a fingerprint, and any other required
information, such as a Personal Identification Number (PIN), to the
TWIC reader, upon a request from TSA, the Coast Guard, any other
authorized DHS representative, or a Federal, State, or local law
enforcement officer.
0
6. Add Sec. 101.520 to read as follows:
Sec. 101.520 TWIC reader requirements for Risk Group A.
Owners or operators of vessels or facilities subject to part 104 or
105 of this subchapter that are assigned to Risk Group A in Sec. Sec.
104.263 or 105.253 of this
[[Page 17829]]
subchapter must ensure that a Transportation Worker Identification
Credential (TWIC) program is implemented as follows:
(a) Maritime Security (MARSEC) Level 1. (1) Prior to each entry,
all persons must present their TWICs for inspection using a TWIC
reader, with or without a Physical Access Control System (PACS), before
being granted unescorted access to secure areas. The TWIC inspection
must include an identity verification including a biometric match, card
authentication, and card validity check using Canceled Card List (CCL)
information that is no more than 7 days old.
(2) With a PACS, biometrics other than the fingerprint templates
stored in the TWIC may be used to perform the identity verification,
provided that the owner or operator links the person, the TWIC, and the
alternate biometric in the PACS. To do this, a one-time initial
biometric match and card authentication using a TWIC reader must be
performed. Owners and operators must update their security plans to
explain how the PACS performs the required security functions and how
they protect sensitive security information.
(b) MARSEC Levels 2 and 3. At these MARSEC Levels, the same
procedures outlined in paragraph (a) of this section must be used,
except that the card validity check must use CCL information that is no
more than 1 day old.
(c) The CCL information used to verify card validity must be
updated within 12 hours of any increase in MARSEC Level, no matter when
the information was last updated.
(d) Only the most recently obtained CCL information shall be used
to conduct card validity checks.
(e) Vessels in Risk Group A with more than 14 crewmembers required
to hold a TWIC must comply with the applicable TWIC reader requirements
in this subchapter. All vessels with 14 or fewer TWIC-holding
crewmembers are exempt from the TWIC reader requirements in this
subchapter. Owners or operators of vessels with 14 or fewer TWIC-
holding crewmembers are required to perform the following TWIC visual
inspection requirements, prior to each entry, on persons seeking
unescorted access to secure areas:
(1) Visually match the photograph on the TWIC to the person
presenting the TWIC.
(2) Visually check the various security features present on the
card to determine whether the TWIC has been tampered with or forged.
(3) Visually verify that the expiration date on the face of the
TWIC has not passed.
(f) If the COTP determines that TWIC reader requirements are
causing delays at a facility that result in excessive vehicle build-up
or other consequence, the COTP is authorized to temporarily suspend
TWIC reader requirements at that facility, and permit the owner or
operator to satisfy the requirements of this section by performing the
following TWIC visual inspections, prior to each entry, on persons
seeking unescorted access to secure areas:
(1) Visually match the photograph on the TWIC to the person
presenting the TWIC.
(2) Visually check the various security features present on the
card to determine whether the TWIC has been tampered with or forged.
(3) Visually verify that the expiration date on the face of the
TWIC has not passed.
0
7. Add Sec. 101.525 to read as follows:
Sec. 101.525 TWIC inspection requirements for Risk Group B.
Owners or operators of vessels, facilities, or Outer Continental
Shelf facilities subject to part 104, 105, or 106 of this subchapter
that are assigned to Risk Group B in Sec. Sec. 104.263, 105.253, or
106.258 of this subchapter must ensure that at all Maritime Security
(MARSEC) Levels, prior to each entry, all persons seeking unescorted
access to secure areas present their Transportation Worker
Identification Credentials (TWICs) for inspection before being granted
such unescorted access.
(a) Inspection must include--
(1) A visual match of the photograph on the TWIC to the person
presenting the TWIC;
(2) A visual check of the various security features present on the
card to determine whether the TWIC has been tampered with or forged;
and
(3) A visual verification that the expiration date on the face of
the TWIC has not passed.
(b) Nothing in this section shall be read to prohibit an owner or
operator from implementing the TWIC requirements of a higher Risk Group
for their vessel or facility.
0
8. Add Sec. 101.530 to read as follows:
Sec. 101.530 TWIC inspection requirements for Risk Group C.
Owners or operators of vessels or facilities subject to part 104 or
105 of this subchapter that are assigned to Risk Group C in Sec. Sec.
104.263 or 105.253 of this subchapter must ensure that at all Maritime
Security (MARSEC) Levels, prior to each entry, all persons seeking
unescorted access to secure areas present their TWICs for inspection
before being granted such unescorted access.
(a) TWIC inspection must include--
(1) A visual match of the photograph on the TWIC to the person
presenting the TWIC;
(2) A visual check of the various security features present on the
card to determine whether the TWIC has been tampered with or forged;
and
(3) A visual verification that the expiration date on the face of
the TWIC has not passed.
(b) Nothing in this section shall be read to prohibit an owner or
operator from implementing the TWIC requirements of a higher Risk Group
for their vessel or facility.
0
9. Add Sec. 101.535 to read as follows:
Sec. 101.535 TWIC inspection requirements in special circumstances.
Owners or operators of any vessel, facility, or Outer Continental
Shelf (OCS) facility subject to part 104, 105, or 106 of this
subchapter must ensure that a TWIC program is implemented as follows:
(a) If a person cannot present a Transportation Worker
Identification Credential (TWIC) because it has been lost, damaged, or
stolen, and the person has previously been granted unescorted access to
secure areas and is known to have had a TWIC, the person may be granted
unescorted access to secure areas for a period of no longer than 7
consecutive calendar days if--
(1) The person has reported the TWIC as lost, damaged, or stolen to
TSA as required in 49 CFR 1572.19(f);
(2) The person can present another identification credential that
meets the requirements of Sec. 101.515 of this part; and
(3) There are no other suspicious circumstances associated with the
person's claim that the TWIC was lost, damaged, or stolen.
(b) If a person's fingerprints are not able to be read by a TWIC
reader or Physical Access Control System (PACS) due to technology
malfunction, poor fingerprint quality, or no fingerprint minutiae, the
owner or operator may grant the person unescorted access to secure
areas based on either of the following secondary authentication
procedures:
(1) The owner or operator may require the person to provide their
Personal Identification Number (PIN); or
(2) The owner or operator may require the person to present an
alternative biometric that has been incorporated into the PACS.
(c) If a TWIC reader malfunctions, and a person seeking unescorted
access to
[[Page 17830]]
secure areas has previously been granted such unescorted access and is
known to have a TWIC, the person may be granted unescorted access to
secure areas for a period of no longer than 7 consecutive calendar
days. During that period, the owner or operator must perform the
following inspections prior to each entry:
(1) A visual match of the photograph on the TWIC to the person
presenting the TWIC.
(2) A visual check of the various security features present on the
card to determine whether the TWIC has been tampered with or forged.
(3) A visual verification that the expiration date on the face of
the TWIC has not passed.
(d) If a person cannot present a TWIC for any other reason than
those outlined in paragraph (a) of this section, the person must not be
granted unescorted access to secure areas. The person must be under
escort, at all times, while in a secure area.
(e) With the exception of persons granted access according to
paragraph (a) of this section, all persons granted unescorted access to
secure areas of a vessel, facility, or OCS facility must be able to
produce their TWICs upon request from the Transportation Safety
Administration, the Coast Guard, other authorized Department of
Homeland Security representatives, or a Federal, State, or local law
enforcement officer.
(f) There must be disciplinary measures in place to prevent fraud
and abuse.
(g) Owners or operators must establish the frequency of the
application of any security measures for access control in their
approved security plans, particularly if these security measures are
applied on a random or occasional basis.
(h) The vessel, facility, or OCS facility's TWIC program should be
coordinated, when practicable, with identification and TWIC access
control measures of other entities that interface with the vessel,
facility, or OCS facility.
PART 104--MARITIME SECURITY: VESSELS
0
10. The authority citation for part 104 continues to read as follows:
Authority: 33 U.S.C. 1226, 1231; 46 U.S.C. Chapter 701; 50
U.S.C. 191; 33 CFR 1.05-1, 6.04-11, 6.14, 6.16, and 6.19; Department
of Homeland Security Delegation No. 0170.1.
Sec. 104.105 [Amended]
0
11. In Sec. 104.105(d), remove the words ``this part'', and add, in
their place, the words ``parts 101 and 104 of this subchapter''.
0
12. Amend Sec. 104.115 by removing paragraph (c), redesignating
paragraph (d) as paragraph (c), and revising newly redesignated
paragraph (c) to read as follows:
Sec. 104.115 Compliance.
* * * * *
(c) By (2 YEARS AFTER DATE OF PUBLICATION OF FINAL RULE), owners
and operators of vessels subject to this part must amend their security
plans, if necessary, to indicate how they will implement the TWIC
reader requirements in this subchapter. By (2 YEARS AFTER DATE OF
PUBLICATION OF FINAL RULE), owners and operators of Risk Group A
vessels subject to this part must operate in accordance with the TWIC
reader provisions found within this subchapter.
Sec. 104.200 [Amended]
0
13. Amend Sec. 104.200 as follows:
0
a. In paragraph (b)(12) introductory text, remove the word ``part'',
and add, in its place, the word ``subchapter''; and
0
b. In paragraph (b)(14), remove the words ``Sec. 104.265(c) of this
part'', and add, in their place, the words ``Sec. 101.535(a) of this
subchapter''.
0
14. Amend Sec. 104.235 as follows:
0
a. In paragraph (b)(7), following the words ``of its effective
period;'', remove the word ``and'';
0
b. In paragraph (b)(8), following the words ``the audit was
completed'', remove the symbol ``.'' and add, in its place, the word
``; and'';
0
c. Add paragraph (b)(9); and
0
d. In paragraph (c), add a sentence to the end of the paragraph.
The additions read as follows:
Sec. 104.235 Vessel recordkeeping requirements.
* * * * *
(b) * * *
(9) TWIC Reader/PACS. For each individual granted unescorted access
to a secure area, the: FASC-N; date and time that unescorted access was
granted; and, if captured, the individual's name. Additionally,
documentation to demonstrate that the owner or operator has updated the
CCL with the frequency required in Sec. 101.520 of this subchapter.
(c) * * * TWIC reader records and similar records in a PACS are
sensitive security information and must be protected in accordance with
49 CFR part 1520.
0
15. Add Sec. 104.263 to read as follows:
Sec. 104.263 Risk Group classifications for vessels.
(a) For purposes of the Transportation Worker Identification
Credential (TWIC) requirements of this subchapter, the following
vessels subject to this part are in Risk Group A:
(1) Vessels that carry Certain Dangerous Cargoes (CDC) in bulk.
(2) Vessels certificated to carry more than 1,000 passengers.
(3) Towing vessels engaged in towing a barge or barges subject to
paragraph (a)(1) or vessels subject to paragraph (a)(2) of this
section.
(b) For purposes of the TWIC requirements of this subchapter, the
following vessels subject to this part are in Risk Group B:
(1) Vessels that carry hazardous materials other than CDC in bulk.
(2) Vessels subject to 46 CFR chapter I, subchapter D, that carry
any flammable or combustible liquid cargoes or residues.
(3) Vessels certificated to carry 500 to 1,000 passengers.
(4) Towing vessels engaged in towing a barge or barges subject to
paragraph (b)(1), (b)(2), or vessels subject to paragraph (b)(3) of
this section.
(c) For purposes of the TWIC requirements of this subchapter, the
following vessels subject to this part are in Risk Group C:
(1) Vessels carrying non-hazardous cargoes that are required to
have a vessel security plan (VSP).
(2) Vessels certificated to carry less than 500 passengers.
(3) Towing vessels engaged in towing a barge or barges subject to
paragraph (c)(1) or vessels subject to paragraph (c)(2) of this
section.
(4) Mobile Offshore Drilling Units (MODUs).
(5) Offshore Supply Vessels (OSVs) subject to 46 CFR chapter I,
subchapter L or I.
(d) Vessels may move from one Risk Group classification to another,
based on the cargo they are carrying or handling at any given time. An
owner or operator expecting a vessel to move between Risk Groups must
explain, in the VSP, the timing of such movements, as well as how the
vessel will move between the requirements of the higher and lower Risk
Groups, with particular attention to the security measures to be taken
when moving from a lower Risk Group to a higher Risk Group.
0
16. Amend Sec. 104.265 as follows:
0
a. Revise paragraph (a)(4);
0
b. Remove paragraphs (c) and (d);
0
c. Redesignate paragraphs (e) through (h) as paragraphs (c) through
(f), respectively;
0
d. Revise newly redesignated paragraph (d)(1);
0
e. In newly redesignated paragraph (e)(6), remove the word ``and'';
0
f. In newly redesignated paragraph (e)(7), following the words
``cooperation
[[Page 17831]]
with the facility'', remove the symbol ``.'' and add, in its place, the
word ``; and'';
0
g. Add paragraph (e)(8);
0
h. In newly redesignated paragraph (f)(9), remove the word ``or'';
0
i. In newly redesignated paragraph (f)(10), following the words
``search of the vessel'', remove the symbol ``.'' and add, in its
place, the word ``; or''; and
0
j. Add paragraph (f)(11).
The revisions and additions read as follows:
Sec. 104.265 Security measures for access control.
(a) * * *
(4) Prevent an unescorted individual from entering an area of the
vessel that is designated as a secure area unless the individual holds
a duly issued TWIC and is authorized to be in the area. Depending on a
vessel's Risk Group, TWICs must be checked either visually or
electronically using a TWIC reader or as integrated into a PACS at the
locations where TWIC-holders embark the vessel.
* * * * *
(d) * * *
(1) Implement TWIC as set out in Sec. Sec. 101.520, 101.525, or
101.530 of this subchapter, as applicable, and in accordance with the
vessel's assigned Risk Group, as set out in Sec. 104.263 of this part;
* * * * *
(e) * * *
(8) Implementing additional TWIC requirements, as required by Sec.
104.263 of this part and Sec. Sec. 101.520, 101.525, or 101.530 of
this subchapter, if relevant.
* * * * *
(f) * * *
(11) Implementing additional TWIC requirements, as required by
Sec. 104.263 of this part and Sec. Sec. 101.520, 101.525 or 101.530
of this subchapter, if relevant.
Sec. 104.267 [Amended]
0
17. In Sec. 104.267(a), remove the last sentence.
Sec. 104.292 [Amended]
0
18. Amend Sec. 104.292 as follows:
0
a. In paragraph (b) introductory text, remove the words ``(f)(2),
(f)(4), and (f)(9)'' and add, in its place, the words ``(d)(2), (d)(4),
and (d)(9)'';
0
b. In paragraph (e)(3), remove the words ``Sec. 104.265(f)(4) and
(g)(1)'', and add, in their place, the words ``Sec. 104.265(d)(4) and
(e)(1)''; and
0
c. In paragraph (f), remove the words ``Sec. 104.265(f)(4) and
(h)(1)'', and add, in their place, the words ``Sec. 104.265(d)(4) and
(f)(1)''.
0
19. Amend Sec. 104.405 as follows:
0
a. Revise paragraph (a)(10); and
0
b. In paragraph (b), remove the last sentence.
The revisions read as follows:
Sec. 104.405 Format of the Vessel Security Plan (VSP).
(a) * * *
(10) Security measures for access control, including the vessel's
TWIC program, designated passenger access areas, and employee access
areas;
* * * * *
PART 105--MARITIME SECURITY: FACILITIES
0
20. The authority citation for part 105 continues to read as follows:
Authority: 33 U.S.C. 1226, 1231; 46 U.S.C. 70103; 50 U.S.C. 191;
33 CFR 1.05-1, 6.04-11, 6.14, 6.16, and 6.19; Department of Homeland
Security Delegation No. 0170.1.
0
21. Amend Sec. 105.110 by revising paragraph (b) to read as follows:
Sec. 105.110 Exemptions.
* * * * *
(b) A public access area designated under Sec. 105.106 is exempt
from the requirements for screening of persons, baggage, and personal
effects and identification of persons in Sec. Sec. 101.520, 101.525,
or 101.530 of this subchapter, as applicable, and Sec. 105.255(c)(1),
(c)(3), (d)(1), and (e)(1) and Sec. 105.285(a)(1).
* * * * *
0
22. Amend Sec. 105.115 as follows:
0
a. In paragraph (c), following the words ``Sec. 105.415 of this
part'', remove the words ``, by September 4, 2007''; and
0
b. Remove paragraph (d), redesignate paragraph (e) as paragraph (d),
and revise newly redesignated paragraph (d) to read as follows:
Sec. 105.115 Compliance.
* * * * *
(d) By (2 YEARS AFTER DATE OF PUBLICATION OF FINAL RULE), owners
and operators of facilities subject to this part must amend their
security plans, if necessary, to indicate how they will implement the
TWIC reader requirements in this subchapter. By (2 YEARS AFTER DATE OF
PUBLICATION OF FINAL RULE), owners and operators of Risk Group A
facilities subject to this part must be operating in accordance with
the TWIC reader provisions found within this subchapter.
Sec. 105.200 [Amended]
0
23. Amend Sec. 105.200 as follows:
0
a. In paragraph (b)(6) introductory text, remove the word ``part'', and
add, in its place, the word ``subchapter''; and
0
b. In paragraph (b)(15), remove the words ``section 105.255(c) of this
part'', and add, in their place, the words ``Sec. 101.535(a) of this
subchapter''.
0
24. Amend Sec. 105.225 as follows:
0
a. In paragraph (b)(7), following the words ``of its effective
period;'', remove the word ``and'';
0
b. In paragraph (b)(8), following the words ``the audit was
completed'', remove the symbol ``.'' and add, in its place, the word
``; and'';
0
c. Add paragraph (b)(9); and
0
d. In paragraph (c), add a sentence to the end of the paragraph.
The additions read as follows:
Sec. 105.225 Facility recordkeeping requirements.
* * * * *
(b) * * *
(9) TWIC Reader/PACS. For each individual granted unescorted access
to a secure area, the: FASC-N; date and time that unescorted access was
granted; and, if captured, the individual's name. Additionally,
documentation to demonstrate that the owner or operator has updated the
CCL with the frequency required in Sec. 101.520 of this subchapter.
(c) * * * TWIC reader records and similar records in a PACS are
sensitive security information and must be protected in accordance with
49 CFR part 1520.
0
25. Add Sec. 105.253 to read as follows:
Sec. 105.253 Risk Group classifications for facilities.
(a) For purposes of the Transportation Worker Identification
Credential (TWIC) requirements of this subchapter, the following
facilities subject to this part are in Risk Group A:
(1) Facilities that handle Certain Dangerous Cargoes (CDC) in bulk.
(2) Facilities that receive vessels certificated to carry more than
1,000 passengers.
(3) Barge fleeting facilities that receive barges carrying CDC in
bulk.
(b) For purposes of the TWIC requirements of this subchapter, the
following facilities subject to this part are in Risk Group B:
(1) Facilities that receive vessels that carry hazardous materials
other than CDC in bulk.
(2) Facilities that receive vessels subject to 46 CFR chapter I,
subchapter D, that carry any flammable or combustible liquid cargoes or
residues.
(3) Facilities that receive vessels certificated to carry 500 to
1,000 passengers.
(4) Facilities that receive towing vessels engaged in towing a
barge or barges carrying hazardous materials other than CDC in bulk,
crude oil, or towing vessels certificated to carry 500 to 1,000
passengers.
[[Page 17832]]
(c) For purposes of the TWIC requirements of this subchapter, the
following facilities subject to this part are in Risk Group C:
(1) Facilities that receive vessels carrying non-hazardous cargoes
not otherwise included in paragraph (a) or (b) of this section.
(2) Facilities that receive vessels certificated to carry less than
500 passengers.
(3) Facilities that receive towing vessels engaged in towing a
barge carrying non-hazardous cargoes or less than 500 passengers.
(d) Facilities may move from one Risk Group classification to
another, based on the material they handle or the types of vessels they
receive at any given time. An owner or operator of a facility expected
to move between Risk Groups must explain, in the facility security
plan, the timing of such movements, as well as how the facility will
move between the requirements of the higher and lower Risk Groups, with
particular attention to the security measures to be taken when moving
from a lower Risk Group to a higher Risk Group.
0
26. Amend Sec. 105.255 as follows:
0
a. Revise paragraph (a)(4);
0
b. Remove paragraphs (c) and (d);
0
c. Redesignate paragraphs (e) through (h) as paragraphs (c) through
(f), respectively;
0
d. Revise newly redesignated paragraph (d)(1);
0
e. In newly redesignated paragraph (c), remove the words ``Facility
Security Plan (FSP)'' and add, in their place, the word ``FSP''.
0
f. In newly redesignated paragraph (e)(6), remove the word ``or'';
0
g. In newly redesignated paragraph (e)(7), following the words ``in the
approved FSP'', remove the symbol ``.'' and add, in its place, the word
``; or'';
0
h. Add paragraph (e)(8);
0
i. In newly redesignated paragraph (f)(8), remove the word ``or'';
0
j. In newly redesignated paragraph (f)(9), following the words ``within
the facility'', remove the symbol ``.'' and add, in its place, the word
``; or''; and
0
k. Add paragraph (f)(10) as follows:
The revisions and additions read as follows:
Sec. 105.255 Security measures for access control.
(a) * * *
(4) Prevent an unescorted individual from entering an area of the
facility that is designated as a secure area unless the individual
holds a duly issued TWIC and is authorized to be in the area. Depending
on a facility's Risk Group, TWICs must be inspected either visually or
electronically using a TWIC reader or as integrated into a PACS at the
access points to the secure areas designated in the facility security
plan (FSP).
* * * * *
(d) * * *
(1) Implement TWIC as set out in Sec. Sec. 101.520, 101.525, or
101.530 of this subchapter, as applicable, and in accordance with the
facility's assigned Risk Group, as set out in Sec. 105.253 of this
part;
* * * * *
(e) * * *
(8) Implementing additional TWIC requirements, as required by Sec.
105.253 of this part and Sec. Sec. 101.520, 101.525, or 101.530 of
this subchapter, if relevant.
* * * * *
(f) * * *
(10) Implementing additional TWIC requirements, as required by
Sec. 105.253 of this part and Sec. 101.520, 101.525, or 101.530 of
this subchapter, if relevant.
Sec. 105.257 [Amended]
0
27. In Sec. 105.257(a), remove the last sentence.
0
28. Revise Sec. 105.290(b) to read as follows:
Sec. 105.290 Additional requirements--cruise ship terminals.
* * * * *
(b) Check the identification of all persons seeking to enter the
facility. Persons holding a TWIC shall be checked as set forth in
Sec. Sec. 101.520, 101.525 or 101.530 of this subchapter, as
applicable, in accordance with the facility's assigned Risk Group, as
set out in Sec. 105.253 of this part. For persons not holding a TWIC,
this check includes confirming the reason for boarding by examining
passenger tickets, boarding passes, government identification or
visitor badges, or work orders;
* * * * *
0
29. Revise Sec. 105.296(a)(4) to read as follows:
Sec. 105.296 Additional requirements-barge fleeting facilities.
(a) * * *
(4) Control access to the barges once tied to the fleeting area by
implementing TWIC as described in Sec. Sec. 101.520, 101.525 or
101.530 of this subchapter, as applicable, in accordance with the
facility's assigned Risk Group, as set out in Sec. 105.253 of this
part.
* * * * *
0
30. Amend Sec. 105.405 as follows:
0
a. Revise paragraph (a)(10); and
0
b. In paragraph (b), remove the last sentence.
The revisions read as follows:
Sec. 105.405 Format and content of the Facility Security Plan (FSP).
(a) * * *
(10) Security measures for access control, including the facility's
TWIC program and designated public access areas;
* * * * *
PART 106--MARINE SECURITY: OUTER CONTINENTAL SHELF (OCS) FACILITIES
0
31. The authority citation for part 106 continues to read as follows:
Authority: 33 U.S.C. 1226, 1231; 46 U.S.C. Chapter 701; 50
U.S.C. 191; 33 CFR 1.05-1, 6.04-11, 6.14, 6.16, and 6.19; Department
of Homeland Security Delegation No. 0170.1.
Sec. 106.110 [Amended]
0
32. In Sec. 106.110, remove paragraphs (d) and (e).
Sec. 106.200 [Amended]
0
33. Amend Sec. 106.200 as follows:
0
a. In paragraph (b)(6) introductory text, remove the word ``part'', and
add, in its place, the word ``subchapter''; and
0
b. In paragraph (b)(12), remove the words ``Sec. 106.260(c) of this
part'', and add, in their place, the words ``Sec. 101.535 of this
subchapter''.
0
34. Add Sec. 106.258 to read as follows:
Sec. 106.258 Risk Group classifications for OCS facilities.
For purposes of the Transportation Worker Identification Credential
requirements of this subchapter, all Outer Continental Shelf facilities
subject to this part are classified in Risk Group B.
0
35. Amend Sec. 106.260 as follows:
0
a. Remove paragraphs (c) and (d);
0
b. Redesignate paragraphs (e) through (h) as paragraphs (c) through
(f), respectively;
0
c. Revise newly redesignated paragraph (d)(1);
0
d. In newly redesignated paragraph (e)(3), remove the word ``or'';
0
e. In newly redesignated paragraph (e)(4), following the words
``providing boat patrols'', remove the symbol ``.'' and add, in its
place, the word ``; or'';
0
f. Add paragraph (e)(5);
0
g. In newly redesignated paragraph (f)(7), remove the word ``or'';
0
h. In newly redesignated paragraph (f)(8), following the words ``search
of the OCS facility'', remove the symbol ``.'' and add, in its place,
the word ``; or''; and
0
i. Add paragraph (f)(9).
The revisions and additions read as follows:
Sec. 106.260 Security measures for access control.
* * * * *
(d) * * *
(1) Implement TWIC as set out in Sec. 101.525 of this subchapter
in
[[Page 17833]]
accordance with the OCS facility's assigned Risk Group, as set out in
Sec. 106.258 of this part.
* * * * *
(e) * * *
(5) Implementing additional TWIC requirements, as required by Sec.
106.258 of this part and Sec. 101.525 of this subchapter.
* * * * *
(f) * * *
(9) Implementing additional TWIC requirements, as required by Sec.
106.258 of this part and Sec. 101.525 of this subchapter.
Sec. 106.262 [Amended]
0
36. In Sec. 106.262(a), remove the last sentence.
0
37. Amend Sec. 106.405 as follows:
0
a. Revise paragraph (a)(10); and
0
b. In paragraph (b), remove the last sentence.
The revisions read as follows:
Sec. 106.405 Format of the Facility Security Plan (FSP).
(a) * * *
(10) Security measures for access control, including the OCS
facility's TWIC program;
* * * * *
Dated: March 13, 2013.
Admiral Robert J. Papp Jr.,
Commandant, U.S. Coast Guard.
[FR Doc. 2013-06182 Filed 3-21-13; 8:45 am]
BILLING CODE 9110-04-P