Latest Developments that will Affect Implementation of the TWIC Reader Final Rule

On August 02, 2018, HR 5729 was signed into law, becoming Public Law No: 115-230,The  Transportation Worker Identification Credential Accountability Act of 2018.  The law is so brief that it is quoted in its entirety at the end of this post.  It prohibits the Coast Guard from implementing the TWIC Reader Final Rule and proposing or issuing a notice of proposed rulemaking for any revision to that rule except to extend its effective date, or for any other rule requiring the use of biometric readers for biometric transportation security cards. The Coast Guard may not do any of this before the end of the 60-day period after submission to Congress of the results of an assessment of the effectiveness of the TWIC program, required under a 2016 law mandating a comprehensive security assessment of the program. TSA was supposed to have commenced and completed this assessment of the TWIC program in 2017, but I can find no evidence on the relevant congressional committee websites of testimony on the assessment.

On August 03 the Coast Guard published a post on Maritime Commons, Latest Developments Regarding the TWIC Reader Final Rule, at http://mariners.coastguard.dodlive.mil/2018/08/03/8-3-2018-latest-developments-regarding-twic-reader-final-rule/, advising about HR 5729.

The Maritime Commons post gives some information from International Liquid Terminals Association et. al. v. DHS, the industry groups lawsuit against the TWIC reader rule, that also impacts implementation of the rule: “Additionally, the United States District Court for the Eastern District of Virginia issued a court order July 24, 2018, delaying the TWIC Reader Final Rule implementation at Certain Dangerous Cargo transfer and non-transfer facilities until further order of the Court, in response to a lawsuit brought by industry groups.”

What this will probably mean for us is that the clock has been stopped on the TWIC reader final rule – not just for certain classes of facilities, but for all facilities subject to the rule. Maritime Commons states in the August 03 post that “The Office of Port and Facility Compliance will provide additional information regarding the impacts of this law, the current lawsuit, and the Notice of Proposed Rulemaking in the near future.”

______________________________________________________

Public Law No: 115-230

An Act, To restrict the department in which the Coast Guard is operating from implementing any rule requiring the use of biometric readers for biometric transportation security cards until after submission to Congress of the results of an assessment of the effectiveness of the transportation security card program.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

This Act may be cited as the “Transportation Worker Identification Credential Accountability Act of 2018”.

SEC. 2. RESTRICTION ON IMPLEMENTATION OF TRANSPORTATION WORKER IDENTIFICATION CREDENTIAL BIOMETRIC READER RULE.

The department in which the Coast Guard is operating may not implement the rule entitled “Transportation Worker Identification Credential (TWIC)–Reader Requirements” (81 Fed. Reg. 57651), and may not propose or issue a notice of proposed rulemaking for any revision to such rule except to extend its effective date, or for any other rule requiring the use of biometric readers for biometric transportation security cards under section 70105(k)(3) of title 46, United States Code, before the end of the 60-day period beginning on the date of the submission under paragraph (5) of section 1(b) of Public Law 114–278 (130 Stat. 1411 to 1412) of the results of the assessment required by that section.

SEC. 3. PROGRESS UPDATES.

Not later than 30 days after the date of the enactment of this Act, and every 90 days thereafter until the submission under paragraph (5) of section 1(b) of Public Law 114–278 (130 Stat. 1411 et seq.) of the results of the assessment required by that section, the Secretary of Homeland Security shall report to the Committee on Homeland Security and the Committee on Transportation and Infrastructure of the House of Representatives and the Committee on Commerce, Science, and Transportation of the Senate regarding the implementation of that section.

Coast Guard Maritime Commons Clarifies CDC and TWIC Reader Rule

There has been a lot of discussion about facilities who are not in Risk Group A but are concerned that they might be included because they “handle CDC” by truck or railcar away from the MTSA nexus. The TWIC reader final rule seems to indicate that these facilities will be included in the rule (p. 57681), although the rule also states that the facility may  “define its MTSA footprint in such a way as to exclude that area.” It is presumed that this would require a Facility Security Plan (FSP) amendment.

On March 31, 2017, on Coast Guard Maritime Commons, CG-FAC used the blog to push out important information to industry, clarifying the USCG stance on facilities that handle CDC. The blog states that facilities should look to an older Policy Advisory Council decision, 20-04, for guidance on who is and who is not subject to 33 CFR 105.295 and thus included in Risk Group A. I was using Chrome to access Maritime Commons and the link to Homeport was not successful. For other users who also have trouble linking to Homeport, the text of the PAC is included below in its entirety. Scenarios D and E refer directly to facilities who handle their CDC by modes other than maritime.

To get to this PAC on Homeport, go to http://homeport.uscg.mil  then MTSA>MTSA/ISPS Policy Advisory Council FAQs>20-04 Certain Dangerous Cargo Facilities.pdf

MTSA/ISPS POLICY ADVISORY COUNCIL

May 6, 2004

Issue/Discussion/Decision

Certain Dangerous Cargo Facilities

20-04

FINAL

Issue: What is a CDC facility?

Discussion: Certain Dangerous Cargoes (CDC’s) are defined in 33 CFR 160.204, and the

preamble to the Final Rule states that facilities that handle such CDC’s are considered CDC

Facilities. The Final Rule preamble also notes the Coast Guard disagrees “that 105.295 should only apply when CDC is actually present on a facility, because the measures required by the section must be taken in advance so that they can be implemented when CDC is present.” The Final Rule preamble does not define what the word handles means, and the purpose of this paper is to decide how to interpret this term.

Decision: In order for a facility to be classified as a CDC Facility, a vessel-to-facility

interface must occur, or be capable of occurring, and involve the transfer of CDC’s in bulk.

Facilities designated as CDC facilities would need to comply with the regulations contained in 33 CFR 105.295. A facility that is required to complete a Security Plan but that is not designated as a CDC Facility must develop security procedures for the safeguarding of the CDC while it is present on the facility. The following scenarios are examples of how this might be accomplished:

Scenario A: Facilities that receive vessels and engage in vessel-to-facility interfaces that

involves the transfer of bulk Certain Dangerous Cargoes from the vessels that they receive.

Scenario A Decision: Facilities would be designated as Certain Dangerous Cargo (CDC)

Facilities and would be required to comply with 33 CFR 105.295.

Scenario B: Facilities that receive vessels and engage in vessel-to-facility interfaces that

involves the transfer of packaged Certain Dangerous Cargoes from the vessels that they receive.

Scenario B Decision: Facilities would not be required to comply with 33 CFR 105.295. The

Facility Security Plan for these facilities must address the fact that they handle such cargoes and the provisions that the facilities have to secure such cargoes. Scenario C: Facilities that receive vessels that carry CDC’s in bulk but the transfer of CDC’s does not occur between the vessels and the facility.

Scenario C Decision: Facilities would not be required to comply with 33 CFR 105.295. Under 33 CFR 105. 245(b), prior to the arrival of a vessel to the facility, the Facility Security Officer and the Vessel Security Officer, or their designated representatives, would be required to coordinate security needs and agree upon the contents of a DoS. The vessel and facility representatives would then need to sign and implement this DoS. As part of the Security that the two agree upon, provisions should be implemented to safeguard the CDC onboard the vessel.

Scenario D: Facilities, already subject to 33 CFR Part 105, receiving Certain Dangerous

Cargoes from entities other than vessels, such as rail cars and tanker trucks.

Scenario D Decision: Facilities would not be required to comply with 33 CFR 105.295. The

Facility Security Plan for these facilities must address the fact that they handle such cargoes and the provisions that the facilities have to secure such cargoes. At a minimum, these facilities would need to designate the areas where CDC’s are present as restricted areas.

Scenario E: Facilities, already subject to 33 CFR Part 105, through which train cars travel

carrying CDC’s. These CDC’s are not received at the facility, but the train cars might be present for extended periods of time.

Scenario E Decision: Facilities would not be required to comply with 33 CFR 105.295. The

facility should be aware of the movement of such cargoes and have included this in their Facility Security Plans. At a minimum, the facility should incorporate the checking of railcars duringsecurity rounds on the facility.