Wednesday, December 21, 2011

CG to Change Some TWIC Policies

Last Friday John C.W. Bennett published a notice on his Maritime Transportation Security News and Views blog about the OMB’s approval of an ANPRM updating the Coast Guard’s Transportation Workers Identification Credential (TWIC) regulations to implement section 809 of the Coast Guard Authorization Act of 2010. That post was an update to his earlier blog (and my blog post) about the rule going to OMB for approval. It appears that John and I both guessed wrong about the document being an ANPRM since yesterday the Federal Register’s Public Inspection page pre-published the Coast Guard’s Notice of Availability of a Policy Letter 11-15 addressing the §809 changes to the TWIC program. That notice will actually be published in tomorrow’s Federal Register (76 FR 79544) [Updated 6:18 EST, 12-22-11].

The Federal Register notice will not contain the actual policy letter, that can be found on the Coast Guard’s Homeport site (for those not used to convoluted military style procedures the Coast Guard’s Homeport is a real treat. There is no permanent link to the letter you have to click through Library > Policy > Policy Letters > Inspection > CG-543 Policy Letter 11-15 to get to the letter). The notice does provide a reasonable summary of the letter’s provisions though.

NOTE: The notice also claims that the letter is available on (Docket # USCG-2011-0465) but that docket will not be activated until after the actual notice is published tomorrow.

The letter essentially changes processes not rules. As John pointed out in his blog the rule making process is time consuming and the Coast Guard has found an innovative way to shortcut that process. They are going through the rule changing process to implement §809, but in the meantime they are changing the way that they will enforce two specific provision of the current rules.


The current regulations requires that an applicant (initial or renewal) for a Merchant Mariner Credential (MMC) must first obtain a TWIC. This allowed the Coast Guard to use the TSA TWIC screening process to vet MMC applicants. The new process will only require the applicant to have gone through the TWIC enrollment process, not actually received the TWIC. Since the TWIC fees are paid at the start of the enrollment process this may not seem like a big change, but it will allow applicants to avoid a potentially unnecessary second trip to the TWIC enrollment center to pick-up an unneeded TWIC.

Now the requirement for mariners to have TWICs is still going to apply in many (most?) cases. If a mariner is working on a vessel that is required to have a security plan under the MTSA regulations, a TWIC will still be required. The letter, and the notice, provides a listing of the types of vessels where this new policy will apply.


Well, legally, all mariners are still required to have TWICs until the actual regulations are changed. To make this new policy effective what the Coast Guard is doing is providing notice that they are going to “exercise their enforcement discretion” (para 6b of the actual letter) by not pursuing revocation procedures against an MMC holder that does not possess a valid TWIC when they are working on an exempted vessel.

Essentially they are telling their enforcement personnel to not check for TWICs when they inspect vessels that do not require security plans under MTSA. If TWICs are not checked then there is no basis for taking action against the MMC holder that does not have a TWIC.


I actually think that the Coast Guard’s action is a relatively innovative solution to a complicated bureaucratic problem. The Commandant is to be commended for putting into writing this policy change; it would have been much easier to either ignore the problem until the rulemaking process was completed or just quietly pass the word to inspectors to stop TWIC checks in appropriate settings.

I am afraid, however, that this could come back and bite the Coast Guard in uncomfortable places. It leaves them open for having a valid TWIC enforcement action challenged on the grounds of ‘unequal enforcement’. Most judges would probably side with the Commandant, but selective enforcement has been successfully used as a reason for appeals in a wide range of cases. I hope the Coast Guard proceeds with their rule making process expeditiously and that the political side of the Administration provides minimal interference in that process.

Unified Agenda

There is an interesting comment in the letter about the Unified Agenda of Regulatory and Deregulatory Actions. It notes that the Coast Guard will complete the rulemaking process “in accordance with the timeline set forth” (para 5b on page 3 of the letter) with the Unified Agenda. Both John and I noted in our earlier blogs that this action was not listed in the Spring 2011 Unified Agenda; so apparently it will be listed in the Fall 2011 Unified Agenda that has yet to be published.

It will be interesting to see what the projected timeline for this rule actually is. Then, of course, few people expect that timeline to actually be met. While I do not claim to have verified the projected timelines of every rulemaking, none of the chemical safety or security rules that I have tracked over the last couple of years have come anywhere near close to meeting the time estimates published in the Unified Agenda.

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