[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 [www.gpo.gov]
[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 
[email protected]. General information and press inquiries: 
Contact Chief Warrant Officer 3 Kurt Fredrickson, U.S. Coast Guard; 
telephone 202-372-4619; email [email protected].

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:
     Facilities that handle Certain Dangerous Cargoes in bulk 
and transfer such cargoes from or to a vessel;
     Facilities that handle Certain Dangerous Cargoes in bulk, 
but do not transfer it from or to a vessel; and
     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 www.reginfo.gov.
    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.


0
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]
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