

[Federal Register: September 28, 2007 (Volume 72, Number 188)]
[Rules and Regulations]               
[Page 55043-55049]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr28se07-7]                         


[[Page 55043]]

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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Parts 101, 105 and 106

Transportation Security Administration

49 CFR Part 1572

[Docket Nos. TSA-2006-24191; USCG-2006-24196]
RIN 1652-AA41

 
Transportation Worker Identification Credential (TWIC) 
Implementation in the Maritime Sector; Hazardous Materials Endorsement 
for a Commercial Driver's License

AGENCY: Transportation Security Administration (TSA), United States 
Coast Guard, Department of Homeland Security (DHS).

ACTION: Final rule.

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SUMMARY: The Department of Homeland Security (DHS), through the 
Transportation Security Administration (TSA) and the United States 
Coast Guard (Coast Guard), issues this final rule to amend provisions 
of its previously issued final rule, to allow for greater participation 
in the TWIC program and codify final fees to obtain a TWIC. This final 
rule continues to further secure our Nation's ports and modes of 
transportation, and also implements the Maritime Transportation 
Security Act of 2002 (MTSA) and the Security and Accountability for 
Every Port Act of 2006 (SAFE Port Act). Those statutes require 
credentialed merchant mariners and individuals with unescorted access 
to secure areas of vessels and facilities to undergo a security threat 
assessment and receive a biometric credential, known as a 
Transportation Worker Identification Credential (TWIC).
    With this final rule, the Coast Guard amends its regulations on 
vessel and facility security, requiring the use of the TWIC as an 
access control measure. Specifically, the Coast Guard is amending its 
definition of secure areas, to take into account facilities in the 
Commonwealth of the Northern Mariana Islands, whose workers are not 
required to obtain work visas from the United States before being 
allowed to work.
    With this final rule, TSA amends its regulations on TWIC to allow 
additional non-resident aliens to apply for a TWIC if they are working 
in a job that requires them to have unescorted access to a maritime 
facility regulated under 33 CFR parts 105 or 106. TSA also amends the 
scope provision of the rule to include additional non-resident aliens 
that may apply for TWIC. TSA amends its regulations to clarify those 
credentialed merchant mariners who may receive a TWIC at a reduced fee. 
TSA amends the fee portion of the regulation, increasing the 
replacement credential fee from $36 to $60 and codifying the other fees 
that were announced in the Federal Register on March 20, 2007. Finally, 
TSA announces a reduction in the fee charged by the Federal Bureau of 
Investigation (FBI) to conduct fingerprint-based criminal history 
record checks (CHRCs) that are submitted to the FBI electronically. 
Therefore, the standard fee for a TWIC is $132.50 and the reduced TWIC 
fee for applicants who have completed a comparable threat assessment is 
$105.25.

DATES: This final rule is effective September 28, 2007.

ADDRESSES: Comments and material received from the public, as well as 
documents mentioned in this preamble as being available in the docket, 
are part of dockets TSA-2006-24191 and USCG-2006-24196, and are 
available for inspection or copying at the Docket Management Facility, 
U.S. Department of Transportation, West Building Ground Floor, Room 
W12-140, 1200 New Jersey Avenue SE., Washington, DC 20590, between 9 
a.m. and 5 p.m., Monday through Friday, except Federal holidays. Until 
September 27, 2007, you may also find and submit electronic comments to 
this docket on the Internet at http://dms.dot.gov. You may submit 

documents by fax, by courier or in person until September 28 at noon. 
On October 1, the Federal Docket Management System (FDMS) will replace 
the current system and you will be able to find and submit related 
documents at http://www.regulations.gov. The mailing address and fax numbers 

will remain the same.

FOR FURTHER INFORMATION CONTACT: If you have questions on the TSA 
portions of this rule, call Christine Beyer, telephone (571) 227-2657. 
If you have questions on the Coast Guard portions of this rule, call 
LCDR Jonathan Maiorine, telephone 1-877-687-2243. If you have questions 
on viewing the docket, call Renee V. Wright, Program Manager, Docket 
Operations, telephone (202) 493-0402.

SUPPLEMENTARY INFORMATION:

I. Regulatory History

    On May 22, 2006, The Department of Homeland Security (DHS) through 
the United States Coast Guard (Coast Guard) and the Transportation 
Security Administration (TSA) published a joint notice of proposed 
rulemaking entitled ``Transportation Worker Identification Credential 
(TWIC) Implementation in the Maritime Sector; Hazardous Materials 
Endorsement for a Commercial Driver's License'' in the Federal 
Register. 71 FR 29396. This was followed by a 45-day comment period and 
four public meetings. The Coast Guard and TSA issued a joint final 
rule, under the same title, on January 25, 2007 (hereinafter referred 
to as the original TWIC final rule). 72 FR 3492. The preamble to the 
original TWIC final rule contains a discussion of all the comments 
received on the NPRM, as well as a discussion of the provisions found 
in that final rule, which became effective on March 26, 2007.
    On July 13, 2007, the Coast Guard issued another final rule, 
extending the deadline for facilities wishing to redefine their secure 
areas, under 33 CFR 105.115. 72 FR 38486. This delay allowed facility 
owners and operators to take guidance, issued by the Coast Guard in 
Navigation and Vessel Inspection Circular 03-07 on July 6, 2007, into 
consideration before being required to submit new security plans.

II. Background and Purpose

    A complete discussion of the background and purpose of the original 
TWIC final rule may be found beginning at 72 FR 3494. This final rule 
is being issued in order to make amendments to the original TWIC final 
rule that have become necessary due to delays in the implementation of 
the original TWIC final rule, or that are necessary in order to allow 
for a more effective implementation of the original TWIC final rule.

III. Discussion of Changes

A. Secure Areas

    With this final rule, the Coast Guard amends its regulations on 
vessel and facility security, requiring the use of the TWIC as an 
access control measure. Specifically, the Coast Guard is amending its 
definition of secure area to take into account facilities in the 
Commonwealth of Northern Mariana Islands (CNMI) where non-resident 
alien workers are not required to obtain work visas from the United 
States before being allowed to work. Under the existing rule, these 
workers are ineligible to obtain TWICs. There are currently 12 
facilities regulated by part 105 located in the CNMI. Non-resident 
alien workers at these facilities are not required to obtain visas from 
the U.S. Department of State (State Department)

[[Page 55044]]

before being allowed to work at facilities in CNMI. Without this 
amendment, these workers would be unable to obtain TWICs, and the 
facilities in CNMI would lose approximately 50 percent of their present 
workforce. Note that these facilities must continue to implement their 
previously approved facility security plans, which include provisions 
for maintaining access control. Vessels coming from the CNMI to any 
other port in the United States will still need to go through the same 
port state control screening required of a vessel coming from a foreign 
country. Additionally, workers provided unescorted access to facilities 
in the CNMI would not be eligible for unescorted access to any other 
part 105 facility, nor would they be eligible for unescorted access to 
any part 104 vessel, unless the were issued a TWIC. This amendment may 
be found at 33 CFR 101.105.

B. Areas Adjacent to Vessels

    The Coast Guard is also adding a provision into parts 105 and 106 
to mirror a provision added into part 104 in the original TWIC final 
rule. These provisions allow mariners serving aboard vessels to have 
access to those spaces immediately adjacent to their vessel when they 
are working in those spaces in the conduct of vessel activity, even if 
they do not have a TWIC. This provision was discussed in the preamble 
to the original TWIC final rule on 72 FR 3521, but the corresponding 
amendments were not made in parts 105 and 106. This final rule corrects 
that oversight. These amendments can be found in 105.105 and 106.105.

C. TWIC Eligibility

    In the original TWIC final rule, TSA listed the categories of non-
resident aliens who work in the maritime sector and would be eligible 
to apply for TWICs. TSA's intention was to allow lawful non-immigrants 
with legitimate employment authorization and lawful presence to obtain 
TWICs. Shortly after publication of the original TWIC final rule, Coast 
Guard received comments from industry questioning why B1/OCS (Outer 
Continental Shelf) and H2B visas were not included in the list of 
acceptable visas under 49 CFR 1572.105. This led TSA to re-examine the 
list of categories of individuals who should be able to apply for a 
TWIC and to make the changes described below to allow additional non-
resident aliens to apply for a TWIC.
    After further research, we determined that B1/OCS visas are 
currently in use in the maritime industry to allow specialized workers 
to fill open positions where U.S. employees are not available. 
Approximately 4,000 B1/OCS visas are issued annually to seamen who work 
at OCS operations. If these workers are not eligible to apply for a 
TWIC, they will likely not be employable in OCS operations. Further, 
owners/operators who currently rely on holders of B1/OCS visas will be 
adversely impacted if they cannot hire workers in sufficient numbers to 
keep the OCS facilities operating. For these reasons and in keeping 
with the criteria we established in the original TWIC final rule to 
determine which lawful non-immigrants should be eligible to apply for a 
TWIC, we are adding the B1/OCS visa to the list of permissible visa 
categories in 49 CFR 1572.105. (See 72 FR 3492, 3502-3505 for a full 
discussion of the immigration eligibility criteria.) Holders of the B1/
OCS visa have restricted authorization to work and the restriction is 
intrinsically related to the maritime industry. Individuals who hold 
the visa typically will require a TWIC in order to complete their 
employment duties and the employers will be required to obtain the TWIC 
once the employment for which the visa was issued is completed.
    At this time we are not adding the H2B visa to the list of 
permissible visas in section 1572.105. We believe approximately 78,000 
H2B visas are issued annually, an indeterminate number of which are 
issued to maritime workers. The H2B visa is issued to temporary 
unskilled or skilled workers for up to one year, without regard to 
whether they work in the maritime industry. Workers who hold this visa 
are not restricted to work in the maritime industry and therefore, a 
maritime employer typically would have little control over when the 
employment for which the visa was issued is completed and the visa 
expires. This fact would make it difficult for the employer to retrieve 
the TWIC if the employee ceased working at that location.
    Even though TSA is not adding the H2B visas explicitly to the list 
of permissible visa categories at this time, we may consider permitting 
H2B visa holders to apply for a TWIC under a new provision of the rule. 
We are adding new subparagraph 1572.105(a)(7)(x) to the immigration 
standards to permit TSA to determine whether additional categories of 
lawful non-immigrants not explicitly listed in 49 CFR 1572.105(a)(7) 
may apply for a TWIC. We believe this provision is necessary to avoid 
the chance that we will inadvertently exclude aliens who possess lawful 
U.S. presence and are prevalent in or important to the maritime 
industry. Also, given the national interest in immigration reform 
legislation, there may be new visa categories created in the future 
that should be eligible for TWIC. Under this new provision, TSA may 
permit individuals to apply for TWIC if they possess an authorization 
that confers legal status, and the legal status is comparable to those 
listed in paragraphs (a)(7)(i)-(ix) of this section.
    TSA will evaluate whether to add new categories of lawful non-
immigrants using the same criteria by which we created the list of 
permissible categories in the original TWIC final rule. (See 72 FR 
3492, 3502-3505 for a full discussion of the immigration eligibility 
criteria.) The critical issues we examined and on which we rely to 
determine whether an alien should be permitted to apply for a TWIC or 
hazardous materials endorsement (HME) are: (1) The statutory language 
regarding immigration status; (2) the degree to which TSA can complete 
a thorough threat assessment both initially and perpetually on the 
applicant; (3) the duration of the applicant's legal status as of the 
date he or she enrolls and the degree to which we can control 
possession of a TWIC once legal status ends; (4) the restrictions, if 
any, that apply to the applicant's immigration status; (5) particular 
maritime professions that commenters stated often involve aliens; and 
(6) the checks done by the State Department or other federal agency 
relevant to granting alien status.
    TSA would make such determinations after careful evaluation and in 
consultation with the Coast Guard, the State Department, and other 
pertinent agencies within DHS. TSA would notify affected populations 
and provide the appropriate training to TWIC enrollment personnel to 
ensure that only the appropriate applicants are permitted to enroll.
    With respect to H2B visas, commenters have informed Coast Guard and 
TSA that there may be particular operations or locations, such as large 
construction projects at port facilities, that rely heavily on H2B visa 
holders for completion. Although we are not amending the immigration 
standards to permit all H2B visa holders to apply for TWIC, we may 
consider permitting workers at these locations to apply for a TWIC to 
prevent adverse economic or security impacts on maritime operations. 
Employers in these kinds of operations should notify their respective 
Captain of the Port to discuss potential solutions to immigration 
eligibility problems. There may be methods to have the H2B visas 
holders complete the

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work without requiring a TWIC. See, for example, Navigation and 
Inspection Circular 03-07, issued by the Coast Guard on July 2, 2007, 
enclosure (3) at 3.3 c.(6). If that is not possible, TSA may consider 
permitting the workers to apply for a TWIC, ensuring that the employer 
is in a position to retrieve all credentials TSA issues when the 
project is complete.
    In addition to amending 49 CFR 1572.105(a)(7), TSA amends the scope 
provision to include other individuals that TSA may consider eligible 
to apply for a TWIC, such as holders of a visa not specifically listed 
in 49 CFR 1572.105(a)(7) that TSA has determined should be permitted to 
hold a TWIC. As discussed in the paragraph above, there may be other or 
new visas or similar authorizations that we have not anticipated that 
serve as legitimate grounds for lawful presence in the United States 
and justification for holding a TWIC. By adding this language to the 
scope provision of the rule, we remove unnecessary restrictions on 
broadening the applicant pool, if the need arises in the future due to 
the discovery of other visa holders or with the passage of new 
legislation. Also, in the future TSA may wish to expand the TWIC 
program to non-maritime modes of transportation and this new scope 
provision facilitates extending coverage to other populations. For 
instance, there may be situations in which a transportation worker who 
seeks access to a secure or otherwise prohibited area would wish to 
voluntarily undergo the threat assessment described in part 1572 to 
gain the benefit of access. The expanded scope provision would 
facilitate this. TSA also may wish to make the threat assessment 
mandatory, not voluntary, for a new population. If so, we would provide 
notice to the public and an opportunity to comment before implementing 
an expansion of the requirement to a new population.
    TSA also amends the scope provision of part 1572 to include 
commercial drivers licensed in Canada or Mexico who apply for a TWIC so 
that they may transport hazardous materials in the United States in 
accordance with 49 CFR 1572.201. This population is permitted to apply 
for a TWIC under the original final rule, but was inadvertently omitted 
from the scope provision.
    TSA is also amending its regulations to clarify which credentialed 
merchant mariners who may receive a TWIC at a reduced fee. The original 
TWIC final rule contained a separate implementation schedule for 
mariners, which allowed a mariner who had already undergone a security 
threat assessment by the Coast Guard to apply for their TWIC but forego 
an additional security threat assessment by TSA. This would allow 
mariners to obtain their TWIC at a reduced fee, but would also mean 
that their TWIC would be given the same expiration date as the 
credential for which the Coast Guard conducted their security 
assessment. This provision, found at 49 CFR 1572.19(b), incorrectly 
limited those mariners who may take advantage of this provision by 
including an end date of March 26, 2007 (i.e., the effective date of 
the original TWIC final rule). That date should have been the September 
25, 2008 date, calculated to mark the compliance date for mariners, to 
allow all mariners who receive their Coast Guard security assessment 
before they are required to obtain a TWIC the opportunity to receive a 
reduced fee and not have to undergo an additional security threat 
assessment. We are amending 49 CFR 1572.19(b) to reflect the September 
25, 2008 compliance date.

D. TWIC Fees

    TSA is amending the TWIC Card Replacement Fee, codifying the exact 
fee amounts for the Standard and Reduced TWIC Fees, and codifying a 
change the FBI is making to its fees for electronic submission of 
fingerprint-based criminal history record checks (CHRC).
1. Card Replacement Fee
    TSA is increasing the Card Replacement Fee for lost, damaged, or 
stolen TWICs to $60.00 and is amending Sec.  1572.501(d) to include the 
revised amount. In the original TWIC final rule, TSA established the 
Card Replacement Fee at $36.00 as was proposed in the TWIC NPRM. 
However, TSA stated that a re-evaluation of the costs associated with 
card replacement revealed that the actual cost should be $60.00. For a 
detailed discussion of the increased Card Replacement Fee, see the 
preamble of the original TWIC final rule at 72 FR 3505-3508.
    In summary, the per-person cost for the Card Replacement Fee is 
derived from four of the cost components that make up the total TWIC 
fee: Enrollment/Issuance,\1\ the TWIC information data management 
system (IDMS), Card Production, and Program Support. The Enrollment/
Issuance cost component increased by approximately one percent to 
account for the contractor fee of $5 associated with replacing a 
credential. The IDMS cost component increased by $19 per credential 
produced due to: (1) The need to increase the hardware and software 
required to obtain a Security Certification & Accreditation, and to 
support the full volume of TWIC applicants; (2) system changes required 
to address security vulnerabilities; and (3) increases in contractor 
support necessary for systems operations and maintenance.
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    \1\ Although the majority of the Enrollment/Issuance 
requirements have already been satisfied by the applicant through 
initial enrollment, there are still some enrollment/issuance 
functions associated with card replacements, such as overhead.
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    The Card Production cost increased by approximately 39 percent 
based on the need to add a third work shift at the production facility 
to produce cards more rapidly during the initial enrollment phase. This 
increase was necessary to address concerns from stakeholders that cards 
must be produced very quickly to minimize adverse impacts on commerce. 
Also, this increase was necessary to cover technology and product 
improvements for the TWIC system, credentials, and readers in the 
future. Including the cost of technology and system improvements is a 
common practice for programs that rely heavily on software and hardware 
to collect and transmit large amounts of information.
    Finally, the Program Support cost decreased by approximately 17 
percent based on reduced program staff levels and the cost of 
interagency communications. This resulted in a $2 per card decrease.
    We invited comment on raising the Card Replacement fee from $36 to 
$60 and received comments from four entities. One entity stated that 
replacement cards should cost no more than the actual card stock and 
personalization, which it asserts is $14, shipping and handling at $10, 
and a reasonable contractor issuance fee of $5--a total of $29.
    We developed the fees by spreading all of the program costs 
(enrollment/issuance, IDMS, threat assessment, card production, and 
program support) over 5 years and according to whether a particular 
cost component is related to the corresponding fee. If we failed to 
calculate the fees in this way, there would be an unfair distribution 
of the costs among the population and over the time period, and the 
regular applicant fee during initial enrollment would be significantly 
higher. Thus, the card replacement fee includes a portion of the 
program costs that relates to issuing a replacement card, including the 
IDMS and program support costs. Therefore, we are not accepting the 
recommended change--we must take into account the cost of the IDMS, 
enrollment/issuance, card production, and program support

[[Page 55046]]

because producing a replacement card involves all of these program 
components. As stated in the original final TWIC rule, the IDMS cost 
increased by 135 percent from the NPRM due to the need for more 
hardware and software, and additional security features. In addition, 
card production costs increased by 39 percent due to the need to add a 
third worker shift to cover card production during initial enrollment. 
These increased the Card Replacement Fee.
    Another entity stated that increasing the Card Replacement Fee 
based on the need for three shifts rather than two at the card 
production facility during the initial enrollment phase should not 
apply to replacement cards at all, because most replacement cards will 
be issued after the initial enrollment phase. This argument is similar 
to the one immediately above. We disagree. We calculated the fees by 
spreading the costs of the program over 5 years to prevent the unfair 
result of having people who enroll in TWIC in the first year pay a much 
higher fee than those who apply in the third year.
    An entity stated that using three shifts rather than two in the 
card production process should decrease, not increase, TSA's card 
production costs because the fixed costs would remain and the cost per 
card would be lower. We disagree. Even assuming the fixed costs remain 
constant with the addition of a third shift, which would not 
necessarily be the case, there are increased labor costs associated 
with adding a third shift that increase TSA's costs.
    An entity suggested that TSA should conduct a cost-comparison 
between the federally-managed card production facility and an 
established commercial card production facility, such as a credit card 
facility, where high-volume services around the clock are typical. We 
agree. Under the terms of the enrollment provider contract, we permit 
our contractor to seek out and use other card production facilities 
that offer high quality products that meet the TWIC specifications at 
lower cost.
    An entity commented that if a TWIC card malfunctions as a result of 
normal wear, TSA should replace it free of charge. TSA is purchasing 
card stock that is designed to remain operable under normal conditions 
for 5 years. If TSA determines that the card stock does not perform 
satisfactorily under normal handling conditions or fails to meet the 
design warranty, TSA will replace the cards at no charge to applicants.
    Finally, an entity claimed that technology improvements should 
decrease, not increase, costs associated with the TWIC system, 
credentials and card production. We agree that technology improvements 
that occur in the future will improve efficiency and are likely to 
reduce some costs. However, equipment and software changes will be 
necessary to take advantage of the improved technology, and therefore, 
those costs must be accounted for in the TWIC fee. If TSA's overall 
costs decrease, TSA will reduce the TWIC fees accordingly.
2. FBI Fee
    The Criminal Justice Information Services (CJIS) Division of the 
FBI recently notified government agencies and other entities of revised 
interim fees for fingerprint-based CHRCs, effective October 1, 2007. 
The revised interim fees will remain in effect until the FBI announces 
final fees through a Notice in the Federal Register. However, the FBI 
does not anticipate significant changes to the interim fee structure.
    The FBI is reducing its fee for electronically submitted CHRCs from 
$22.00 to $17.25. The existing rule text in Sec.  1572.501(b)(3) states 
that if the FBI changes its fee for CHRCs, TSA will collect the amended 
FBI fee. Therefore, it is not necessary to change the rule text to 
authorize TSA to collect $17.25 from applicants rather than $22.00. 
Nonetheless, to avoid confusion, TSA is amending the rule text by 
removing the old fee amount--``$22''-- from Sec.  1572.501(b)(3). We 
are retaining the language stating that if the FBI amends its fees in 
the future, TSA will collect the amended FBI fee.
3. Standard and Reduced TWIC Fees
    In this final rule, TSA also codifies the exact Standard TWIC and 
Reduced TWIC Fee amounts. When the original TWIC final rule was 
published, we provided ranges for these fees in the preamble as 
follows: the Standard TWIC Fee would be $139-$159, and the Reduced TWIC 
Fee would be $107-$127. TSA could not provide exact figures at that 
time because the contract for enrollment services was not yet finalized 
and thus some of the costs could not be determined with specificity. We 
noted that we would publish a notice in the Federal Register announcing 
the exact fee amounts as soon as possible.
    On March 20, 2007, TSA announced the exact fee amounts. 72 FR 
13026. For the Standard TWIC Fee, the Enrollment Segment Fee would be 
$43.25, the Full Card Production/Security Threat Assessment Segment Fee 
would be $72, and the FBI Fee would be $22. We announced the Standard 
TWIC Fee total as $137.25 ($43.25 + $72 + $22) to obtain a TWIC. In 
this final rule, we are codifying the Enrollment Segment Fee ($43.25) 
and the Full Card Production/Security Threat Assessment Segment Fee 
($72). However, since the FBI is changing its fee as of October 1, 
2007, as discussed in detail above, the new Standard TWIC Fee total for 
a TWIC is $132.50. We are codifying these fees in Sec.  1572.501(b).
    In March, TSA also announced that the Reduced TWIC Fee for 
applicants who have completed a comparable threat assessment and can 
forego a new FBI criminal check would total $105.25. This includes the 
Enrollment Segment Fee of $43.25 and the Reduced Card Production/
Security Threat Assessment Segment Fee of $62. We are codifying these 
fee amounts in Sec.  1572.501(c).

IV. Regulatory Requirements

A. Administrative Procedure Act

    TSA and the Coast Guard provided the public an opportunity to 
comment on the bases for the TWIC fee calculations. However, we did not 
publish a notice of proposed rulemaking (NPRM) regarding other 
amendments in this final rule. Under 5 U.S.C. 553(b)(B), the Coast 
Guard and TSA find that good cause exists for not publishing an NPRM 
with respect to these amendments, because providing opportunity for 
public comment is unnecessary and would be contrary to the public 
interest. Each of the provisions being amended by this final rule 
without prior notice and comment ease a restriction on the public, in 
some cases by removing regulatory requirements completely, or by 
expanding the pool of persons allowed to apply for a TWIC in a manner 
that meets the rule's original intent. These immediate revisions are in 
the public interest because they expand the pool of workers who are 
lawfully present in the United States and will perform needed services. 
For the same reasons, under 5 U.S.C. 553(d)(3), the Coast Guard and TSA 
also find that good cause exists for making this rule effective less 
than 30 days after publication in the Federal Register.
    We note that the fee provisions of this final rule were subject to 
notice and comment, and therefore we need not claim good cause for the 
amendments to 49 CFR 1572.501.

B. Executive Order 12866 (Regulatory Planning and Review)

    This final rule is not a significant regulatory action under 
section 3(f) of Executive Order 12866. The Office of Management and 
Budget has not reviewed it under that Order. We expect the economic 
impact of this rule to be

[[Page 55047]]

minimal and a full Regulatory Evaluation is unnecessary.
    This rule provides technical clarifications and additional 
flexibility for some mariners and vessel and facility owners and 
operators to comply with TWIC requirements. The rule better clarifies 
the definition of secure areas and corrects for omissions from the 
original TWIC final rule. The rule extends the end date for mariners 
who may receive a TWIC at a reduced fee. To the extent that deadlines 
have changed, affected parties may incur some TWIC-related costs later 
rather than sooner.
    With this final rule, TSA is amending provisions to allow TSA to 
evaluate and decide if individuals holding other visa types are 
eligible for a TWIC on a case-by-case basis. TSA is also formally 
publishing final fee changes after considering public comments and 
assessing final impacts in the original TWIC final rule.
    We anticipate that these changes will not substantially increase 
TWIC-related compliance costs to the affected entities and in most 
cases will provide them advantages through deadline extensions, 
technical clarifications, and flexibility.

C. Small Entities

    Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have 
considered whether this 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 less than 50,000.
    We do not expect this rule to substantially increase TWIC-related 
compliance costs. This rule provides technical clarification and adds 
flexibility for some mariners and vessel and facility owners and 
operators affected by the TWIC requirements. The Coast Guard and TSA 
certify under 5 U.S.C. 605(b) that this final rule will not have a 
significant economic impact on a substantial number of small entities.

D. Assistance for Small Entities

    Under sec. 213(a) of the Small Business Regulatory Enforcement 
Fairness Act of 1996 (Pub. L. 104-121), we want to assist small 
entities in understanding the rule so that they can better evaluate its 
effects on them and participate in the rulemaking. Small businesses may 
send comments on the actions of Federal employees who enforce, or 
otherwise determine compliance with, Federal regulations to the Small 
Business and Agriculture Regulatory Enforcement Ombudsman and the 
Regional Small Business Regulatory Fairness Boards. The Ombudsman 
evaluates these actions annually and rates each agency's responsiveness 
to small business. If you wish to comment on actions by employees of 
the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247). The Coast Guard 
and TSA will not retaliate against small entities that question or 
complain about the rule or any policy of the Coast Guard or TSA.

E. Collection of Information

    This rule calls for no new collection of information under the 
Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).

F. Federalism

    A rule has implications for federalism under E.O. 13132, 
Federalism, if it has a substantial direct effect on State or local 
governments and would either preempt State law or impose a substantial 
direct cost of compliance on them. We have analyzed this rule under 
that Order and have determined that it does not have implications for 
federalism.

G. 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 or more in any 
one year. Though this rule will not result in such an expenditure, we 
do discuss the effects of this rule elsewhere in this preamble.

H. Taking of Private Property

    This rule will not effect a taking of private property or otherwise 
have taking implications under E.O. 12630, Governmental Actions and 
Interference with Constitutionally Protected Property Rights.

I. Civil Justice Reform

    This rule meets applicable standards in sections 3(a) and 3(b)(2) 
of E.O. 12988, Civil Justice Reform, to minimize litigation, eliminate 
ambiguity, and reduce burden.

J. Protection of Children

    We have analyzed this rule under E.O. 13045, Protection of Children 
from Environmental Health Risks and Safety Risks. This rule is not an 
economically significant rule and does not create an environmental risk 
to health or risk to safety that may disproportionately affect 
children.

K. Indian Tribal Governments

    This rule does not have tribal implications under E.O. 13175, 
Consultation and Coordination with Indian Tribal Governments, because 
it does 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.

L. Energy Effects

    We have analyzed this rule under E.O. 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 because it is not a ``significant regulatory action'' 
under E.O. 12866 and 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 E.O. 13211.

M. 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 the Office of Management and Budget, with 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 rule does not use technical standards. Therefore, we did not 
consider the use of voluntary consensus standards.

N. Environment

    The provisions of this rule have been analyzed under the Department 
of Homeland Security (DHS) Management Directive (MD) 5100.1, 
Environmental Planning Program, which is the DHS policy and procedures 
for implementing the National Environmental Policy Act (NEPA), and 
related E.O.s and requirements. The changes being made by this final 
rule have no effect on the

[[Page 55048]]

environmental analysis that accompanied the promulgation of the 
original TWIC final rule. That analysis can be found at 72 FR 3576-
3577.
    Accordingly, there are no extraordinary circumstances presented by 
this rule that would limit the use of a categorical exclusion (CATEX) 
under MD 5100.1, Appendix A, paragraph 3.2. The implementation of this 
rule, like the implementation of the original TWIC final rule, is 
categorically excluded under the following CATEX listed in MD 5100.1, 
Appendix A, Table 1: CATEX A1 (personnel, fiscal, management and 
administrative activities); CATEX A3 (promulgation of rules, issuance 
of rulings or interpretations); and CATEX A4 (information gathering, 
data analysis and processing, information dissemination, review, 
interpretation and development of documents). CATEX B3 (proposed 
activities and operations to be conducted in an existing structure that 
would be compatible with and similar in scope to ongoing functional 
uses) and CATEX B 11 (routine monitoring and surveillance activities 
that support law enforcement or homeland security and defense 
operations) would also be applicable.

List of Subjects

33 CFR Part 101

    Harbors, Maritime security, Reporting and recordkeeping 
requirements, Security measures, Vessels, Waterways.

33 CFR Part 105

    Facilities, Maritime security, Reporting and recordkeeping 
requirements, Security measures.

33 CFR Part 106

    Facilities, Maritime security, Outer Continental Shelf, Reporting 
and recordkeeping requirements, Security measures.

49 CFR Part 1572

    Appeals, Commercial drivers license, Criminal history background 
checks, Explosives, Facilities, Hazardous materials, Incorporation by 
reference, Maritime security, Motor carriers, Motor vehicle carriers, 
Ports, Seamen, Security measures, Security threat assessment, Vessels, 
Waivers.

The Final Rule

0
For the reasons set forth in the preamble, the Coast Guard amends 
Chapter I of Title 33, Code of Federal Regulations, parts 101, 105, and 
106 and the Transportation Security Administration amends Chapter XII, 
Title 49, Code of Federal Regulations, part 1572 to read as follows:

Title 33--Navigation and Navigable Waters

CHAPTER I--COAST GUARD

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. In Sec.  101.105, revise the definition of ``secure area'' to read 
as follows:


Sec.  101.105  Definitions.

* * * * *
    Secure area means the area on board a vessel or at a facility or 
outer continental shelf facility over which the owner/operator has 
implemented security measures for access control in accordance with a 
Coast Guard approved security plan. It does not include passenger 
access areas, employee access areas, or public access areas, as those 
terms are defined in Sec. Sec.  104.106, 104.107, and 105.106, 
respectively, of this subchapter. Vessels operating under the waivers 
provided for at 46 U.S.C. 8103(b)(3)(A) or (B) have no secure areas. 
Facilities subject to part 105 of this subchapter located in the 
Commonwealth of Northern Mariana Islands have no secure areas. 
Facilities subject to part 105 of this subchapter may, with approval of 
the Coast Guard, designate only those portions of their facility that 
are directly connected to maritime transportation or are at risk of 
being involved in a transportation security incident as their secure 
areas.
* * * * *

PART 105--MARITIME SECURITY: FACILITIES

0
3. 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
4. Amend Sec.  105.105 by adding paragraph (d) to read as follows:


Sec.  105.105  Applicability.

* * * * *
    (d) The TWIC requirements found in this part do not apply to 
mariners employed aboard vessels moored at U.S. facilities only when 
they are working immediately adjacent to their vessels in the conduct 
of vessel activities.

PART 106--MARITIME SECURITY: OUTER CONTINENTAL SHELF (OCS) 
FACILITIES

0
5. 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.


0
6. Amend Sec.  106.105 by re-designating the introductory paragraph and 
paragraphs (a), (b), and (c) as (a), (1), (2), and (3), respectively, 
and adding paragraph (b) to read as follows:


Sec.  106.105  Applicability.

* * * * *
    (b) The TWIC requirements found in this part do not apply to 
mariners employed aboard vessels moored at U.S. OCS facilities only 
when they are working immediately adjacent to their vessels in the 
conduct of vessel activities.

Title 49--Transportation

Chapter XII--Transportation Security Administration

PART 1572--CREDENTIALING AND SECURITY THREAT ASSESSMENTS

0
7. The authority citation for part 1572 continues to read as follows:

    Authority: 46 U.S.C. 70105; 49 U.S.C. 114, 5103a, 40113, and 
46105; 18 U.S.C. 842, 845; 6 U.S.C. 469.

Subpart A--Procedures and General Standards

0
8. Revise Sec.  1572.3(b)(2) to read as follows:


Sec.  1572.3  Scope.

* * * * *
    (b) * * *
    (2) Is applying to obtain or renew a TWIC in accordance with 33 CFR 
parts 104 through 106 or 46 CFR part 10; is a commercial driver 
licensed in Canada or Mexico and is applying for a TWIC to transport 
hazardous materials in accordance with 49 CFR 1572.201; or other 
individuals approved by TSA.

0
9. Revise Sec.  1572.19(b) to read as follows:


Sec.  1572.19  Applicant responsibilities for a TWIC security threat 
assessment.

* * * * *
    (b) Implementation schedule for certain mariners. An applicant, who 
holds a Merchant Mariner Document (MMD) issued after February 3, 2003, 
and before September 25, 2008, or a Merchant Marine License (License) 
issued after January 13, 2006, and before

[[Page 55049]]

September 25, 2008, must submit the information required in this 
section, but is not required to undergo the security threat assessment 
described in this part.
* * * * *

Subpart B--Qualification Standards for Security Threat Assessments

0
10. Revise Sec.  1572.105(a)(7) to read as follows:


Sec.  1572.105  Immigration status.

    (a) * * *
    (7) An alien in the following lawful nonimmigrant status who has 
restricted authorization to work in the United States--
    (i) B1/OCS Business Visitor/Outer Continental Shelf;
    (ii) C-1/D Crewman Visa;
    (iii) H-1B Special Occupations;
    (iv) H-1B1 Free Trade Agreement;
    (v) E-1 Treaty Trader;
    (vi) E-3 Australian in Specialty Occupation;
    (vii) L-1 Intracompany Executive Transfer;
    (viii) O-1 Extraordinary Ability;
    (ix) TN North American Free Trade Agreement; or
    (x) Another authorization that confers legal status, when TSA 
determines that the legal status is comparable to the legal status set 
out in paragraphs (a)(7)(i)-(viii) of this section.
* * * * *

0
11. Amend Sec.  1572.501 by revising paragraphs (b), (c), and (d) to 
read as follows:


Sec.  1572.501  Fee collection.

* * * * *
    (b) Standard TWIC Fee. The fee to obtain or renew a TWIC, except as 
provided in paragraphs (c) and (d) of this section, is made up of the 
total of the following segments:
    (1) The Enrollment Segment covers the cost for TSA or its agent to 
enroll applicants. The Enrollment Segment fee is $43.25.
    (2) The Full Card Production/Security Threat Assessment Segment 
covers the costs for TSA conduct security threat assessment and card 
production. The Full Card Production/Security Threat Assessment Segment 
fee is $72.
    (3) The FBI Segment covers the cost for the FBI to process 
fingerprint identification records. The FBI Segment fee is the amount 
collected by the FBI under Pub. L. 101-515. If the FBI amends this fee, 
TSA or its agent will collect the amended fee.
    (c) Reduced TWIC Fee. The fee to obtain a TWIC when the applicant 
has undergone a comparable threat assessment in connection with an HME, 
FAST card, other threat assessment deemed to be comparable under 49 CFR 
1572.5(e) or holds a Merchant Mariner Document or Merchant Mariner 
License is made up of the total of the following segments:
    (1) The Enrollment Segment covers the cost for TSA or its agent to 
enroll applicants. The Enrollment Segment fee is $43.25.
    (2) The Reduced Card Production/Security Threat Assessment Segment 
covers the cost for TSA to conduct a portion of the security threat 
assessment and card production. The Reduced Card Production/Security 
Threat Assessment Segment fee is $62.
    (d) Card Replacement Fee. The fee to replace a TWIC that has been 
lost, stolen, or damaged is $60.00.
* * * * *

    Issued in Arlington, Virginia, on September 21, 2007.
Kip Hawley,
Assistant Secretary, Transportation Security Administration.

F.J. Sturm,
Captain, U.S. Coast Guard, Acting Director, Inspections and Compliance.
[FR Doc. 07-4750 Filed 9-27-07; 8:45 am]

BILLING CODE 4910-15-P
