
[Federal Register: March 26, 2009 (Volume 74, Number 57)]
[Rules and Regulations]               
[Page 13114-13116]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr26mr09-16]                         

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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 101

[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: Coast Guard, DHS.

ACTION: Final rule.

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SUMMARY: The Department of Homeland Security (DHS) through the United 
States Coast Guard (Coast Guard) issues this final rule to amend one 
provision of its previously issued final rule. Specifically, the Coast 
Guard is amending its definition of secure area to take into account 
facilities in American Samoa, whose workers are not required to be 
authorized to work in the United States under U.S. immigration law when 
working in American Samoa.

DATES: This final rule is effective March 26, 2009.

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 
(M-30), 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. You may also find this docket on the Internet by going to 
http://www.regulations.gov, selecting the Advanced Docket Search option 
on the right side of the screen, inserting TSA-2006-24191 or USCG-2006-
24196 in the Docket ID box, pressing Enter, and then clicking on the 
item in the Docket ID column.

FOR FURTHER INFORMATION CONTACT: If you have questions on this rule, 
call LCDR Jonathan Maiorine, Coast Guard; telephone 1-877-687-2243. If 
you have questions on viewing the docket, call Renee V. Wright, Program 
Manager, Docket Operations, telephone 202-366-9826.

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 (72 FR 3492) (hereinafter 
referred to as the original TWIC final rule). The preamble to that 
final rule contains a discussion of the provisions found in the 
original TWIC final rule, which became effective on March 26, 2007.
    On September 28, 2007, the Coast Guard and TSA issued a joint final 
rule (72 FR 55043) that, among other things, revised the definition for 
``secure area'' to account for facilities in the Commonwealth of the 
Northern Mariana Islands (the CNMI), as non-citizen workers at those 
facilities are not required to have authorization to work in the United 
States under U.S. immigration law before being allowed to work.
    On May 7, 2008, the Coast Guard and TSA issued a joint final rule 
to realign the compliance date for implementation of the original TWIC 
final rule (see 73 FR 25562). The date by which mariners need to obtain 
a TWIC, and by which owners and operators of vessels and outer 
continental shelf facilities must implement access control procedures 
using TWIC, is April 15, 2009. Owners and operators of facilities that 
must comply with 33 CFR part 105 are subject to earlier, rolling 
compliance dates, as set forth in 33 CFR 105.115(e). The Coast Guard 
announced these rolling compliance dates via notices published in the 
Federal Register. The final compliance date for all COTP Zones is not 
later than April 15, 2009.
    On September 30, 2008, the Coast Guard announced the compliance 
date for COTP Zone Honolulu would be February 12, 2009 (73 FR 56730). 
On February 12, 2009, the Coast Guard announced the extension of that 
compliance date, for the territory of American Samoa only, to April 14, 
2009, due to the fact that a large percentage of the maritime workforce 
is not native to the island, and does not need to be authorized to work 
in the United States under U.S. immigration law before being allowed to 
work in American Samoa. In that notice, the Coast Guard stated that the 
extension was being granted in order to allow time

[[Page 13115]]

for the Coast Guard to consult with TSA, DHS, and the Department of 
State, to determine whether there is an equivalent visa category that 
these workers could use to qualify for a TWIC, or whether the TWIC 
requirement for facilities located in American Samoa should be 
reconsidered. This final rule is the result of those deliberations.

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 an amendment to the original TWIC 
final rule that is necessary to address the fact that non-citizen 
workers on the island of American Samoa do not meet the immigration 
eligibility standards to obtain a TWIC, but make up approximately 87% 
of the maritime workers that would otherwise need a TWIC.
    As in the case of the CNMI, while American Samoa is part of the 
United States, it is not currently included in the definition of 
``United States'' for purposes of the Immigration and Nationality Act 
(8 U.S.C. 110(a)(38)) (Title VII of the Consolidated Natural Resources 
Act of 2008, Pub. L. 110-229, will change this situation later this 
year with respect to the CNMI only by bringing the CNMI within U.S. 
immigration law). Therefore, the work authorization of aliens in 
American Samoa is a matter of territorial law only, and the U.S. 
immigration statuses relevant to TWIC eligibility determinations in 
U.S. jurisdictions subject to the Immigration and Nationality Act do 
not apply there.

III. Discussion of Change

    On September 28, 2007, the Coast Guard and TSA issued a joint final 
rule (72 FR 55043) that, among other provisions, revised the definition 
for ``secure area'' to account for facilities in the CNMI, as workers 
at those facilities are not required to have authorization to work in 
the United States under U.S. immigration law before being allowed to 
work in the CNMI.
    Similar to the CNMI joint final rule, this final rule amends the 
definition of ``secure area'' in 33 CFR 101.105, to state that 
facilities otherwise subject to 33 CFR part 105 located in the 
territory of American Samoa do not have secure areas for the purposes 
of the TWIC regulations. This action means that only the facility 
security officer and facility personnel whose primary employment 
responsibility is security will be required to obtain a TWIC, per 33 
CFR 105.205 and 105.210, respectively.
    Note that these facilities must continue to implement their 
previously approved facility security plans, which include provisions 
for maintaining access control. Vessels coming from American Samoa to 
any other port in the United States must continue 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 American Samoa would not be eligible for unescorted 
access to any other part 105 facility outside of American Samoa, nor 
would they be eligible for unescorted access to any part 104 vessel, 
unless issued a TWIC.
    The rule also takes the opportunity to correct a typographical 
error in the definition of ``secure area'' that resulted in an 
incorrect name of a U.S. territory, by changing ``the Commonwealth of 
Northern Mariana Islands'' to ``the Commonwealth of the Northern 
Mariana Islands''.

IV. Regulatory Requirements

    The Coast Guard has not published a notice of proposed rulemaking 
(NPRM) for this final rule. Under 5 U.S.C. 553(b)(B), the Coast Guard 
finds that good cause exists for not publishing an NPRM, because 
providing opportunity for public comment would be contrary to the 
public interest. The amendment in this final rule eases a requirement, 
by removing it completely for an entire class of individuals. This 
serves the public interest by ensuring that after April 14, 2009, 
maritime businesses in the territory of American Samoa are able to 
continue operating without significantly impacting the security risk to 
the port area. Without this amendment, these businesses would be forced 
to escort the vast majority of their personnel in secure areas, because 
87% of the maritime workforce who would require a TWIC (without this 
amendment) cannot qualify for one. This would be unduly disruptive to 
commerce in American Samoa and is therefore contrary to the public 
interest.
    For the same reasons, and because this change is required before 
the April 14, 2009, TWIC compliance date, under 5 U.S.C. 553(d)(3), the 
Coast Guard finds that good cause exists for making this rule effective 
less than 30 days after publication in the Federal Register.

V. Regulatory Analyses

    We developed this rule after considering numerous statutes and 
executive orders related to rulemaking. Below we summarize our analyses 
based on 13 of these statutes or executive orders.

A. Regulatory Planning and Review

    This rule is not a significant regulatory action under section 3(f) 
of Executive Order 12866, Regulatory Planning and Review, and does not 
require an assessment of potential costs and benefits under section 
6(a)(3) of that Order. The Office of Management and Budget has not 
reviewed it under that Order. We expect the economic impact of this 
rule to be minimal; therefore a full economic evaluation is 
unnecessary.
    This final rule effectively removes the TWIC requirement for the 
majority of workers at facilities located in the territory of American 
Samoa, thus lessening the costs of the regulatory action for the owners 
of these facilities, and removing it entirely for those workers who 
will no longer be required to purchase a TWIC.

B. 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.
    For the reasons stated above, we expect this final rule to reduce 
TWIC-related compliance costs, particularly with respect to the costs 
of providing escorted access to secure areas, for facilities located in 
American Samoa. Therefore, the Coast Guard certifies 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.

C. Assistance for Small Entities

    Under section 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 could better evaluate 
its effects on them and participate in the rulemaking. The Coast Guard 
will not retaliate against small entities that question or complain 
about this rule or any policy or action of the Coast Guard.
    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

[[Page 13116]]

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).

D. 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).

E. Federalism

    A rule has implications for federalism under Executive Order 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.

F. 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.

G. Taking of Private Property

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

H. Civil Justice Reform

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

I. Protection of Children

    We have analyzed this rule under Executive Order 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.

J. Indian Tribal Governments

    This rule does not have tribal implications under Executive Order 
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.

K. Energy Effects

    We have analyzed this rule under Executive Order 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 Executive Order 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 Executive Order 13211.

L. 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.

M. Environment

    We have analyzed this rule under Department of Homeland Security 
Management Directive 0023.1 and Commandant Instruction M16475.lD, which 
guide the Coast Guard in complying with the National Environmental 
Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and have concluded 
that this action is one of a category of actions which do not 
individually or cumulatively have a significant effect on the human 
environment. This rule is categorically excluded under section 2.B.2, 
figure 2-1, paragraph (34)(c) of the Instruction. This rule involves 
regulations concerning the training, qualifying, licensing, and 
disciplining of maritime personnel. An environmental analysis checklist 
and a categorical exclusion determination are available in the docket 
where indicated under ADDRESSES.

List of Subjects in 33 CFR Part 101

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


0
For the reasons discussed in the preamble, the Coast Guard amends 33 
CFR part 101 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.


Sec.  101.105  [Amended]

0
2. In Sec.  101.105, in the definition for ``secure area'', remove the 
words ``Commonwealth of Northern Mariana Islands'' and add, in their 
place, the words ``Commonwealth of the Northern Mariana Islands and 
American Samoa''.

    Dated: March 19, 2009.
Brian M. Salerno,
Rear Admiral, U.S. Coast Guard, Assistant Commandant for Marine Safety, 
Security, and Stewardship.
 [FR Doc. E9-6833 Filed 3-24-09; 11:15 am]

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