Sunday, March 8, 2020

CG Publishes TWIC Reader Delay Final Rule

The Coast Guard published a final rule in the Federal Register (85 FR 13493-13517) for “TWIC--Reader Requirements; Delay of Effective Date”. The rule will delay the implementation of the TWIC Reader rule for 3 years for 370 of the 525 affected Risk Group A facilities. The notice of proposed rulemaking (NPRM) for this rule was published in June of 2018. The rulemaking was initiated as a result of an industry petition [.PDF download].

Expansion of Covered Facilities

While the delay described in the NPRM would have only covered facilities that transferred or handled Certain Dangerous Cargoes (CDC) but did not transfer those CDC to or from vessels, the Coast Guard has expanded the delay coverage to all facilities that handle CDC. This leaves just larger passenger vessels and facilities that serve those vessels covered by the TWIC Reader Rule.

The length of the delay remains three years.

The Other Delay Rule

This final rule does not mention the other TWIC reader delay rule currently in effect. In August of 2018 the President signed HR 5729, the Transportation Worker Identification Credential Accountability Act of 2018 (PL 115-230). That bill prevented the Coast Guard from implementing the TWIC Reader Rule which was due to go into effect on August 23, 2018 until 60-days after Congress received the report on the efficacy of the TWIC program required by HR 710 from the 114th Congress, the Essential Transportation Worker Identification Credential Assessment Act (PL 114-278). That report was supposed to cover an assessment of the effectiveness of the TWIC program “at enhancing security and reducing security risks for facilities and vessels regulated” under the Maritime Transportation Security Act (MTSA).

While not specifically mentioning that other implementation delay, the final rule notice does mention (at the very end of the document) the required report:

“The U.S. Coast Guard requested that the Office of the Federal Register hold this document from publication until delivery to Congress of the assessment required by the Transportation Worker Identification Credential Security Card Program Act (Pub. L. 114-278).”

The report is included in the docket on this rulemaking. I cannot find a publication date on the report beyond “published in 2019”. Presumably it was delivered to DHS late last year and has undergone the required internal review necessary to develop the necessary corrective action plan.

While the final rule does not mention the other delay it effectively deals with it in the sole made to 33 CFR Part 105. It revises § 105.253(a) to read:

(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) Beginning June 8, 2020: Facilities that receive vessels certificated to carry more than 1,000 passengers.

(2) Beginning May 8, 2023: Facilities that handle Certain Dangerous Cargoes (CDC) in bulk and transfer such cargoes from or to a vessel.

(3) Beginning May 8, 2023: Facilities that handle CDC in bulk, but do not transfer it from or to a vessel.

(4) Beginning May 8, 2023: Facilities that receive vessels carrying CDC in bulk but, during the vessel-to-facility interface, do not transfer it from or to the vessel.

Thus, the TWIC reader rule now goes into effect on June 8th, 2020 and the implementation for the various types of facilities that handle CDC starts on May 8th, 2023. The breakout of the different types of CDC handling facilities indicates that the Coast Guard may treat these facilities differently after further review.

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