Tuesday, November 19, 2013

CG Publishes Direct Final Rule on TWIC Use

Today the Coast Guard published a direct final rule in the Federal Register (78 FR 69292-69296) correcting references in 33 CFR 141 stating that the Transportation Workers Identification Credential (TWIC) “alone may be accepted by an employer as sufficient evidence of the TWIC holder's status as a U.S. resident alien”; allowing such individuals to work at Outer Continental Shelf activities.

Section 141.30(d) lists the TWIC as one of four documents that an employer may accept as stand-alone evidence of an individual’s status as a resident alien. However, 49 CFR 1572.105(a) lists a number of types of  non-resident aliens that are authorized to be issued a TWIC. This means that a TWIC is not sufficient proof that an individual is either a citizen or a resident alien.

The preamble to this rule notes that §141.30(d) was added to the regulation in 2009 without any specific mention of why the sub-paragraph was added. There is no explanation (not unexpectedly) of why it has taken four years to find and correct the error.

The Coast Guard is using the unusual technique of issuing a direct final rule in this instance because there would be no purpose served by publishing an NPRM and receiving public comments on that document. This is clearly a legal error in the regulation that must be corrected and no public comments to the contrary will change that.

It would be interesting to see a report by the DHS IG’s office looking at how many people were actually incorrectly allowed to work at the affected Outer Continental Shelf activities as a result of the application of this incorrect standard.

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