Another Small Step for the TWIC Program

Jan 20, 2011 12:00 AM
The US Coast Guard's proposed regulation on Transportation Worker Identification Credential (TWIC) reader requirements was submitted to the Office of Management and Budget for regulatory review on January 12th, according to a posting on reginfo.gov by OMB's Office of Information and Regulatory Affairs (OIRA). If ultimately adopted, the regulation would establish requirements for the use of electronic card readers to verify TWICs at US maritime facilities and vessels that are regulated under the Maritime Transportation Security Act of 2002 as amended (MTSA). 
 
The justification for the OMB review process is "to ensure that agencies, to the extent permitted by law, comply with the regulatory principles stated in the Executive Order [12866 on •Regulatory Planning and Review'] and that the President's policies and priorities are reflected in agency rules. Such review also helps to promote adequate interagency review of draft proposed and final regulatory actions, so that such actions are coordinated with other agencies to avoid inconsistent, incompatible, or duplicative policies. OIRA review helps to ensure that agencies carefully consider the consequences of rules (including both benefits and costs) before they proceed." Under the Executive Order, the period for review is limited to a maximum of 90 days, although the period may be extended under certain circumstances.
 
What will the NPRM look like? Back in March 2009, the Coast Guard published, and requested comments on, its "preliminary thoughts" in an Advanced Notice of Proposed Rulemaking (ANPRM). If the ANPRM were implemented, MTSA-regulated vessels and facilities would be divided into high, medium, and low risk categories based on the types of cargoes or the numbers of passengers they deal with. TWIC verification requirements, which fall into three types of procedures (Identity Verification, Card Authentication, and Card Validity Check) would not only vary by risk category, but also, in some cases, by Maritime Security (MARSEC) Level. It's possible, however, that public comments submitted on the ANPRM might have caused the Coast Guard to rethink its approach.

Unless OMB finds something of significance in the Coast Guard's current proposal at which to take umbrage (which is unlikely), it will be approved for publication in the Federal Register as a Notice of Proposed Rulemaking (NPRM). The NPRM will provide an opportunity for public comment. After the public comment period closes, the Coast Guard will have to consider any comments before publishing a Final Rule. The Preamble to the Final Rule will contain a discussion of the comments and any changes made to the regulation as a result. The Final Rule will also have to provide an effective date that provides sufficient time for all the affected MTSA-regulated facilities and vessels to obtain TWIC readers and revise the access control provisions of their security plans.

So, we are still many moons from a fully implemented TWIC Program. But we are another small step closer. Absent some new hiccup, the NPRM should be published by May. This is not only earlier than the November estimate for publication in last Fall's Unified Agenda and Regulatory Plan (which came out in December), but also beats the August timeframe estimated in Spring 2010 Agenda & Plan. Of course, section 104 of the SAFE Port Act legislated that the Final Rule be promulgated not later than 2½ years after the law's enactment in October, 2006 (180 days to start a pilot program and two years from the start of the pilot program to issue a Final Rule). But at least now, we have the prospect of forward movement.

Tip of the Hat: To P.J. Coyle's most excellent blog, Chemical Facility Security News, where I first learned of the OIRA posting.
 
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
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