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The Office of Port and Facility Compliance has compiled the most frequently asked questions received from both facility owners/operators and Coast Guard facility inspectors, in order to assist facilities compliance with the TWIC – Reader Requirements; Delay of Effective Date Final Rule. Those FAQs are provided here for the convenience of our readers. A blog post summarizing the Final Rule is also available.
Q1. What is the Coast Guard’s role in the TWIC program?
The Transportation Worker Identification Credential (TWIC) program is mandated under the Maritime Transportation Security Act of 2002. It is jointly administered by the Transportation Security Administration (TSA) and the Coast Guard, each of which has distinct responsibilities:
- TSA conducts a security threat assessment and issues a biometric transportation security card, i.e., the TWIC; and,
- The Coast Guard, through the review and approval of facility and vessel security plans, ensures that only certain transportation workers and credentialed merchant mariners who have a valid, active, and unexpired TWIC may enter secure areas of facilities, vessels, and Outer Continental Shelf facilities unescorted.
The value of the TWIC program is that it provides for a single, uniform, tamper resistant, biometrically enabled credential that is issued from a single source based on a standardized set of background checks. It is an important component of the layered system of maritime security.
Q2. What is the applicability of the 2020 Final Rule?
This rule delays for three years the TWIC Reader implementation at all facilities handling Certain Dangerous Cargos (CDC) in order to allow the Department of Homeland Security to analyze the results of the congressionally mandated TWIC program assessment and the Coast Guard to continue its study of CDC risk in the maritime environment.
Passenger vessel facilities regulated under 33 CFR 105 that receive vessels certificated to carry more than 1,000 passengers and U.S. flagged vessels subject to 33 CFR 104 will still be required to meet the TWIC Reader regulations. Currently, there are 155 passenger vessel facilities and one U.S. flagged vessel (PRIDE OF AMERICA in Hawaii) that fall into this category.
Q3. When does the 2020 Final Rule become effective/enforceable? *
The Final Rule is effective May 8, 2020 and enforceable June 7, 2020. Facilities that handle CDC have three years from the date of publication to implement the TWIC reader requirements.
Those categories of vessels and facilities that are not subject to the delay must submit amendments to allow enough time to gain approval and fully implement the required changes by the implementation date required in the Final Rule.
Q4. What is different about this new TWIC rule compared to the 2016 rule?
The primary difference in the 2020 Final Rule is that it delays TWIC reader implementation requirements at all facilities that handle CDC for a period of three years. Facilities that receive passenger vessels certificated to carry more than 1,000 passengers and applicable U.S. flagged vessels are still required to meet TWIC reader implementation as proposed in the 2016 rule.
Q5. Any updates with the new test cards?
The current test cards expired in January 2020. CG-FAC is working with TSA on the new test cards. Once available, CG-FAC will distribute them to the field units.
Q6. How will the Coast Guard enforce this requirement and what are the consequences if a facility does not provide this access?
The MTSA already requires certain facilities to have a Coast Guard-approved Facility Security Plan (FSP). With the 2020 final rule, large passenger vessel facilities, as described above, and the applicable U.S. flagged vessel must now document amendments reflecting implementation of TWIC readers in their FSP and have it approved by the local Captain of the Port.
Facilities that violate any provision of this rule are subject to enforcement by the Captain of the Port. Under 46 U.S.C. 70119 and 33 CFR 101.415(b), any person who does not comply with the applicable requirements, including 33 CFR §105 and 33 CFR part 104, is liable to the U.S. for a civil penalty.
Q7. How is the Coast Guard responding to the recommendations in the DHS TWIC Assessment?
The Coast Guard and TSA worked together to develop a Corrective Action Plan to address findings from the DHS TWIC Assessment. The Corrective Action Plan is currently under review by the DHS. One of the primary corrective actions is to implement the TWIC Delay Final Rule to allow for more time for the Coast Guard to evaluate the risk associated with certain dangerous cargoes and facilities that handle CDC. Once the CAP is completed, it will be submitted to Congress as required by Pub. L. 114-278, Transportation Security Card Program Assessment.
Q8. What were some of the findings of the DHS assessment?
The report examined TWIC’s risk mitigation value in the maritime environment and analyzed the costs and benefits of regulation that requires high-risk facilities to use TWIC in conjunction with a biometric electronic card reader. The assessment found that perceptions of TWIC varied widely among the users and facility operators they interviewed.
Q9. Will the assessment and Corrective Action Plan be made public?
Yes, the assessment is currently available as part of the TWIC Delay final rule docket. The Corrective Action Plan will be made public after it is released to Congress.
Q10. Are there any waivers/exemptions in place that would allow facilities that interface with vessels certified to carry over 1000 passengers, not to conduct electronic TWIC inspections?
No, there are no waivers.
Q11. If a 1000 passenger vessel currently interfaces at an ASP facility, will that
ASP facility will be required to add the electronic TWIC inspections?
The vessel would have to be certificated to carry more than 1,000 passengers. Any facility receiving those vessels would have to be operating under an ASP that had been amended to address the requirements for electronic TWIC inspections.
Q12. Are there any other new requirements that apply to mariners in this final rule outside of Risk Group A facilities?
No, there are no new requirements that apply to mariners outside of Risk Group A facilities.
Q13. When are facilities required to submit FSPs to the COTP for review?
Facilities must submit amendments in enough time to gain approval and fully implement the required changes by the June 7, 2020, implementation date.
Q14. Must companies purchase only readers that are on TSA Qualified Technology List (QTL)?
No. The Final Rule was changed to a performance based requirement. Industry can use any reader commercially available as long as it can perform the 3 parts of an electronic check of a TWIC:
1) Card authentication (read/validate the certificate authorities),
2) Card Validation (not expired and not cancelled), and
3) Identity Verification (biometric match).
As long as the reader does these three things it does not need to be on the QTL.
Both TWIC readers and Public Access Control systems must be updated weekly for the Cancelled Card List during MARSEC Level 1, and daily during MARSEC Level 2.
Q15. Is a reader necessary in limited access spaces with a small number of employees where they all know each other by sight? Would 20 or less employees to a space (like on a ship) be reasonable?
Yes, a reader is necessary. The regulations do not allow for exemptions. If a facility has an equivalent level of security, they can request an equivalency approval determination through the process outlined in 33 CFR 101.130. A facility may also submit a waiver request as outlined in 33 CFR 105.130.
Q16. Can the Designated Recurring Access Area (DRAA) be expanded to include a small unsecured area? For example, the baggage drop-off point at a cruise terminal?
Q17. How is the minimum number of security personnel determined to continuously monitor a DRAA?
33 CFR 101.555(a)(2) states that it be continuously monitored by security personnel “. . . at the access points to secure areas used by personnel seeking Recurring Unescorted Access.”
Q18. Are facilities that receive cruise ship passengers that are tendered to shore Risk Group A?
No. As long as the tenders are not certificated to carry over 1000 passengers.
Q19. What is the “one” vessel the TWIC Reader Rule applies to?
At this time, the only vessel to which this rule applies to is the American Cruise Ship “Pride of America” in Hawaii.
This blog is not a replacement or substitute for the formal posting of regulations and updates or existing processes for receiving formal feedback of the same. Links provided on this blog will direct the reader to official source documents, such as the Federal Register, Homeport and the Code of Federal Regulations. These documents remain the official source for regulatory information published by the Coast Guard.
Categories: Ports and Facilities