Reader Comment – 04-23-09 – TWIC Exceptions

Earlier today our friend Anonymous posted a question to an earlier blog on TWIC exceptions. Anonymous asks:

“I'm a consultant for a asphalt terminal and just yesterday the terminal operator said the USCG told him that their is a TWIC exemption for bulk petroleum storage facilities like his. Does that sound familiar at all?”

Now let me preface my reply with a ‘legal disclaimer’ (I know I have at least a couple of lawyers reading this blog); I AM NOT A LAWYER. This is not legal advice or even a legal opinion; you have to be licensed to practice law to do either. No TWIC Exceptions I have not seen anything giving anyone an exemption for personnel with unaccompanied access to secure areas of MTSA covered facilities or vessels from the requirement to have a TWIC. There have been some time-limited modifications to allow people that have passed their background check, but have not yet received the physical TWIC. Those were issued because of some delays on last minute applications, but they were not facility based exceptions. TWIC Reader Exceptions The TWIC Reader ANPRM addresses proposed future rules for the use of TWIC Readers, electronic devices to read the personal identification information encoded in the radio-frequency identification (RFID) chip in the card. The ANPRM explains that the Coast Guard is considering not requiring some low risk MTSA covered facilities and vessels to use a TWIC Reader to routinely verify the identity of workers. Instead they would just be allowed to use the TWIC as the only acceptable ID card for visual verification of worker identity once the facility/vessel owner had used a TWIC Reader to establish the identity of the worker. This ‘exception’ would only be available to the lowest of three risk groups to be established by the future TWIC Reader rule. For an MTSA covered facility to qualify the Coast Guard is considering using the following description (74 FR 13367) for a ‘Risk Group C’ facility:

“(1) MTSA-regulated facilities that receive vessels carrying non-hazardous cargoes that are required to have a vessel security plan; “(2) Facilities that receive towing vessels engaged in towing a barge carrying non-hazardous cargoes; “(3) Facilities that receive vessels certificated to carry less than 500 passengers.”

I do not think that a ‘bulk petroleum storage facility’ that receives/ships material from a vessel would fit under the proposed description of a ‘Risk Group C’ facility. Even an ‘asphalt terminal’ that receives/ships asphalt from a vessel is handling ‘hazardous materials’ under the HMR. I believe that such facilities would probably fall under the middle category of ‘Risk Group B’. Those facilities would be required, if the current Coast Guard thinking is followed in the rule development process, to use TWIC Readers to verify worker identifications. Recurring Unescorted Access The only other thing that I can think of that someone might be considering is the ‘Recurring Unescorted Access’ provisions discussed in the TWIC Reader ANPRM (74 FR 13367-8). If a facility had no more than 14-personnel requiring unescorted access, this provision, again if included in the actual rule, would not be required to use a TWIC reader every time they entered the facility. Periodic use of the TWIC Reader would still be required. ANPRM’s are not Rules Just one last point; the TWIC Reader ANPRM is an advanced notice of proposed rule making not a rule or regulation. It is a formal start of the rule making process where the agency (the Coast Guard in this case) is establishing their current thoughts about what a regulation might look like. It is done to get public input on how easy it would be for the regulated community to live with the potential rules. The Coast Guard will take the public input, their internal review of that input, the inevitable congressional input, and then develop a draft of their proposed rule. That will then be published in the Federal Register under a notice of proposed rule making (NPRM) and they will again ask for public comments. We are a long way from a TWIC Reader rule going into effect.