The Coast Guard has drafted a regulatory proposal revising Transportation Worker Identification Credential (TWIC) requirements for mariners. Itâ€™s most likely designed to implement section 809 of the Coast Guard Authorization Act of 2010, but details are sparse at this point.
On October 14th, the Office of Information and Regulatory Affairs (OIRA), a unit of the Office of Management and Budget, posted an item summary on its website documenting receipt of the Coast Guardâ€™s draft Advanced Notice of Proposed Rulemaking (ANPRM) for review under Executive Order 12866. The summary provides only the proposalâ€™s title: â€œRevision to Transportation Worker Identification Credential (TWIC) Requirements for Mariners.â€ The proposal itself will not be available to the public until it has been cleared by OIRA, at which point the Coast Guard will arrange for its publication in the Federal Register. Although many regulatory reviews take up to three months, this one should be done much sooner. Since this is an ANPRM, rather than an actual proposed rule, OIRA has, per Section 6(b)(2)(A) of the Executive Order, 10 working days to get back to the proposing agency. So we ought to see publication of the ANPRM in early November at the latest.
In the meantime, why do I think itâ€™s about implementing section 809? First, the time sequence seems right. It was not listed in the â€œSpring 2011 DHS Semiannual Regulatory Agenda.â€ Given submittal deadlines within a massive bureaucracy like the Department of Homeland Security, this suggests that this particular proposal had not been worked out conceptually in time for submittal to the USCGâ€™s collator of regulatory input to DHS by sometime between Thanksgiving and Christmas or New Yearâ€™s Eve 2010. While working backwards from that general timeframe, remember that the President did not sign the Authorization Act into law until October 15, 2010, not that long before the Coast Guardâ€™s input would have been due. And the Act had more than a few additional maritime transportation security taskings for the Coast Guard. Section 809 was only one of them and none of the others made it into the Spring Regulatory Agenda either.
Second, the title of the ANPRM fits section 809 better than anything else. Section 809, â€œTransportation Security Cards on Vesselsâ€ adds the language â€˜â€˜allowed unescorted access to a secure area designated in a[n approved] vessel security planâ€™â€™ to two clauses identifying vessel personnel required to get TWICs under 46 US Code Section 70105. The effect of this language is to relieve some USCG-credentialed merchant mariners and some persons on towing vessels that handle tank vessels from having to have a TWIC. In so doing, section 809 created some headaches for the Coast Guard that the ANPRM will presumably address.
As to people on tugs handling tank vessels, the Coast Guard had already owned up to an inadvertent overreaching in its MTSA regulatory endeavors. In MTSA PAC 53-05, â€œTowing vessels moving regulated barges NOT carrying CDCs,â€1 the Service ruled that, if a towing vessel is moving an uninspected barge that is subject to 33 CFR Part 104 but is not actually carrying a CDC in bulk at the time, the towing vessel is not required to have a VSP (provided that there is no other basis that would require it to have a plan). If a towing vessel is not required to have a VSP, then it would not have any secure areas for which a TWIC would be needed for unescorted access.
As to credentialed mariners, the Coast Guard had built its entire credentialing system around TWIC. This included discontinuing its own background checks in favor of TSAâ€™s TWIC threat assessment. In the absence of a TWIC application, how will the USCG ensure backgrounds are checked or are these applicants of such little security concern, because of the positions they will occupy, that no background check should be required? The Coast Guard may also have concerns about TWIC-less credentialed mariners transitioning from vessels that donâ€™t require VSPs to fully MTSA-regulated vessels. Although the existing sanctions on allowing the TWIC-less into secure areas without escort ought to be sufficient to induce vessel operators to ensure that such mariners obtained TWICs, the USCG may feel the need to expand on the regulations in this area.
Itâ€™s interesting that the Coast Guard is using an ANPRM, rather than proceeding directly to a proposed rule. This could indicate that the USCG doesnâ€™t have fixed ideas on how to solve its issues with section 809, its genuine interest in obtaining industry input before it settles on its approach, or both. Use of an ANPRM, however, will stretch the process out. After allowing time for public comments on the ANPRM, the Coast Guard will have consider those comments and respond to them in publishing its proposed rule. Then, there will have to be time for comments on the draft rule, which comments will have to be taken into account before a Final Rule is promulgated. Meanwhile, peopleâ€™s TWICs are reaching the end of their five-year lives. To renew or not to renew, that is the question. Under current regulations, owner/operators face fines if they allow TWIC-less mariners to access regulated vesselâ€™s secure areas without escort and mariners can lose their credentials if they fail to maintain their TWICs. It would be amusing to watch the Coast Guard try to defend in court a regulatory enforcement action that contravened the governing statute. But itâ€™s expensive to bring a court challenge against the Government. The Coast Guard could elect not to enforce the regulations in cases covered by section 809, but that approach could present its own difficulties. It will be interesting to see how it all shakes out, possibly starting within the next two weeks.
Tip of the Hat: To P.J. Coyleâ€™s most excellent blog, Chemical Facility Security News, where I first learned of the OIRA posting.
1 To check out MTSA PAC 53-05, go to the USCG website Homeport, which does not support links from outside itself, and click on â€œMTSAâ€ in the menu on the right under â€œFeatured Homeport Links.â€ Click on â€œMTSA/ISPS Policy Advisory Councilâ€ under â€œFACsâ€ in the middle of the resulting page. Scroll down to 53-05 in the column of PDFs that appears toward the right, under â€œSupporting Documents.
.â€NOTE: This post may be copied, distributed, and displayed and derivative works may be based on it, provided it is attributed to Maritime Transportation Security News and Views by John C. W. Bennett, http://mpsint.com.