Rule2023-08040
Transportation Worker Identification Credential-Facility Reader Requirement; Conforming Amendment
Primary source
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Published
April 17, 2023
Effective
April 17, 2023
Issuing agencies
Homeland Security DepartmentCoast Guard
Abstract
The Coast Guard is amending its Risk Group A facility regulations so that their provisions to implement Transportation Worker Identification Credential (TWIC) electronic inspection requirements by May 8, 2023, is changed to May 8, 2026. This will revise our regulations to conform with recently passed legislation. The James M. Inhofe National Defense Authorization Act for Fiscal Year 2023 (Authorization Act) was enacted December 23, 2022. A provision within the Authorization Act directs the Secretary of Homeland Security to not implement TWIC reader regulations for certain facilities before May 8, 2026. This conforming amendment will have no substantive effect. Controlling statutory authority already nullifies the May 8, 2023, implementing dates in our regulations. We note there is a separate ongoing rulemaking to address whether the implementation date should remain May 8, 2026, or be moved to a later date. The Authorization Act was enacted after the Coast Guard published the proposed rule for that separate rulemaking.
Full Text
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<title>Federal Register, Volume 88 Issue 73 (Monday, April 17, 2023)</title>
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[Federal Register Volume 88, Number 73 (Monday, April 17, 2023)]
[Rules and Regulations]
[Pages 23349-23350]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2023-08040]
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DEPARTMENT OF HOMELAND SECURITY
Coast Guard
33 CFR Part 105
[Docket No. USCG-2023-0265]
Transportation Worker Identification Credential--Facility Reader
Requirement; Conforming Amendment
AGENCY: Coast Guard, DHS.
ACTION: Final rule; conforming amendments.
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SUMMARY: The Coast Guard is amending its Risk Group A facility
regulations so that their provisions to implement Transportation Worker
Identification Credential (TWIC) electronic inspection requirements by
May 8, 2023, is changed to May 8, 2026. This will revise our
regulations to conform with recently passed legislation. The James M.
Inhofe National Defense Authorization Act for Fiscal Year 2023
(Authorization Act) was enacted December 23, 2022. A provision within
the Authorization Act directs the Secretary of Homeland Security to not
implement TWIC reader regulations for certain facilities before May 8,
2026. This conforming amendment will have no substantive effect.
Controlling statutory authority already nullifies the May 8, 2023,
implementing dates in our regulations. We note there is a separate
ongoing rulemaking to address whether the implementation date should
remain May 8, 2026, or be moved to a later date. The Authorization Act
was enacted after the Coast Guard published the proposed rule for that
separate rulemaking.
DATES: This final rule is effective April 17, 2023.
FOR FURTHER INFORMATION CONTACT: For information about this document or
technical inquiries, call or email Lieutenant William Gasperetti, U.S.
Coast Guard; telephone 202-372-1139; email
<a href="/cdn-cgi/l/email-protection#6037090c0c09010d4e2e4e2701131005120514140920151303074e0d090c"><span class="__cf_email__" data-cfemail="fcab959090959d91d2b2d2bb9d8f8c998e99888895bc898f9f9bd2919590">[email protected]</span></a>. General information and press inquiries:
Contact Chief Warrant Officer 3 Kurt Fredrickson, U.S. Coast Guard;
telephone 202-372-4619; email <a href="/cdn-cgi/l/email-protection#d79ca2a5a3f999f991a5b2b3a5beb4bca4b8b997a2a4b4b0f9babebb"><span class="__cf_email__" data-cfemail="80cbf5f2f4aeceaec6f2e5e4f2e9e3ebf3efeec0f5f3e3e7aeede9ec">[email protected]</span></a>.
SUPPLEMENTARY INFORMATION: On August 23, 2016, the Coast Guard
published the Transportation Worker Identification Credential (TWIC)--
Reader Requirements final rule (81 FR 57652). Among other things, it
added 33 CFR 105.253 to 33 CFR part 105. Section 105.253 identifies
certain facilities as being in Risk Group A. And Sec. 105.255 imposes
certain electronic TWIC inspection requirements for facilities in Risk
Group A.
The Coast Guard last amended the list of facilities in Risk Group A
in 2020 through the TWIC--Reader Requirements; Delay of Effective Date
final rule (85 FR 13493, March 9, 2020). That rule expanded the
categories of facilities in Risk Group A and inserted implementation
dates for each category. The facilities identified in Sec.
105.253(a)(2) through (4) were given a May 8, 2023, implementation
date. And those same three categories of facilities correspond to what
are called ``covered facilities'' in Sec. 11804 of the Authorization
Act that was enacted December 23, 2022 (Pub. L. 117-263, 136 Stat
2395).
The Authorization Act directs the Secretary not to implement the
2016 TWIC Reader Requirements rule ``for covered facilities before May
8, 2026.'' The Authorization Act identifies covered facilities as:
<bullet> Facilities that handle Certain Dangerous Cargoes in bulk
and transfer such cargoes from or to a vessel;
<bullet> Facilities that handle Certain Dangerous Cargoes in bulk,
but do not transfer it from or to a vessel; and
<bullet> Facilities that receive vessels carrying Certain Dangerous
Cargoes in bulk but, during the vessel-to-facility interface, do not
transfer it from or to the vessel.
And these three categories are identical to facilities identified
in paragraphs (a)(2) through (4) of 33 CFR 105.253, a section
established by the 2016 TWIC Reader rule and amended by the 2020 Reader
Delay rule. This rule changes the implementation date in those three
paragraphs from May 8, 2023, to May 8, 2026, thereby conforming these
regulations with the Authorization Act.
This conforming amendment to 33 CFR 105.253 will have no
substantive effect. The controlling statutory authority enacted
December 23, 2022, has nullified the May 8, 2023, implementing dates in
our regulations. The Coast Guard may not implement requirements in
Sec. 105.253(a)(2) through (4) before May 8, 2026.
Two weeks before the Authorization Act was enacted, the Coast Guard
published a notice of proposed rulemaking (NPRM) entitled
``Transportation Worker Identification Credential (TWIC)-Reader
Requirements; Second Delay of Effective Date'' (87 FR 74563, December
6, 2022). In it we proposed to change the implementation dates in Sec.
105.253(a)(2) through (4) to May 8, 2026, and requested comments on
whether we should extend the date as late as May 8, 2029. In that
rulemaking we are considering comments received on that
[[Page 23350]]
proposed rule and other relevant matter presented, including the
Authorization Act.
We do not anticipate issuing a final rule in that rulemaking until
after May 8, 2023. In that rulemaking we will consider either keeping
the implementation date introduced by this rule, May 8, 2026, or
changing it to an even later date. To view the status of that
rulemaking, TWIC--Reader Requirements; Second Delay of Effective Date,
search for RIN 1625-AC80 in the Unified Agenda via <a href="http://www.reginfo.gov">www.reginfo.gov</a>.
The Coast Guard is issuing this final rule without prior notice and
opportunity to comment pursuant to authority under section 4(a) of the
Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This provision
authorizes an agency to issue a rule without prior notice and
opportunity to comment when the agency for good cause finds that those
procedures are ``impracticable, unnecessary, or contrary to the public
interest.'' Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good
cause exists for not publishing a NPRM with respect to this rule. This
rule simply conforms the regulations with the applicable statute,
notice and comment procedures are unnecessary. We have referenced the
separate, ongoing rulemaking that will address whether the implementing
date in our regulations should be changed to a date beyond the earliest
date, May 8, 2026, permitted by the Authorization Act.
Also, we find good cause under provisions in 5 U.S.C. 553(d)(3) to
make this rule effective upon publication because delaying the
effective date is unnecessary and contrary to the public interest.
Given the nullification of the May 6, 2023 date by the Authorization
Act, changing the date immediately will have no effect on the public.
In addition, waiting 30 days after publication to remove the
conflicting dates from Sec. 105.253(a)(2) through (4) is contrary to
the public's interest in having access to accurate regulations.
We have analyzed this final rule under Department of Homeland
Security Management Directive 023-01, Rev. 1, associated implementing
instructions, and Environmental Planning COMDTINST 5090.1 (series),
which guide the Coast Guard in complying with the National
Environmental Policy Act of 1969 (42 U.S.C. 4321 4370f), and have made
a determination that this action is one of a category of actions that
do not individually or cumulatively have a significant effect on the
human environment. A Record of Environmental Consideration supporting
this determination is available in the docket. This rule is
categorically excluded under paragraph L54 of Appendix A, Table 1 of
DHS Instruction Manual 023-01(series). Paragraph L54 pertains to
regulations that are editorial or procedural.
List of Subjects in 33 CFR Part 105
Maritime security, Navigation (water), Reporting and recordkeeping
requirements, Security measures, Waterways.
For the reasons listed in the preamble, the Coast Guard amends 33
CFR part 105 as follows:
PART 105--MARITIME SECURITY: FACILITIES
0
1. The authority citation for part 105 continues to read as follows:
Authority: 46 U.S.C. 70034, 70103, 70116; sec. 811, Pub. L.
111-281, 124 Stat. 2905 (46 U.S.C. 70103 note); 33 CFR 1.05-1, 6.04-
11, 6.14, 6.16, and 6.19; DHS Delegation No. 00170.1, Revision No.
01.3.
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2. In Sec. 105.253, paragraphs (a)(2) through (4), remove the date
``May 8, 2023'', and add, in its place, the date ``May 8, 2026''.
Dated: April 12, 2023.
J.E. McLeod,
Acting Chief, Office of Regulations and Administrative Law.
[FR Doc. 2023-08040 Filed 4-14-23; 8:45 am]
BILLING CODE 9110-04-P
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