The U.S. Coast Guard in late September submitted for review by the Office of Management and Budget (OMB) a final rule that would extend the effective dates of the TWIC Reader Final Rule. While OMB cleared the rulemaking for publication on Oct. 1, 2019, the rule has not been published nor is it available for review, so we are unaware of its provisions.
We understand that USCG cannot publish this final rule until 61 days after submitting the results of a Congressionally required study, by RAND Corporation, to Congress. At press time, there has been no indication that Congress has received the study that evaluates the efficacy of TWIC readers and biometric readers in general.
If the rule simply extends the effective dates of the TWIC Reader Final Rule, it will not address the inclusion of facilities handling non-maritime Certain Dangerous Cargo (CDC) and thus will not have addressed a key legal complaint ILTA and allies have about the rule. In April of 2018, ILTA, the American Chemistry Council and The Fertilizer Institute sued the USCG in the Federal District Court of Eastern Virginia over the agency’s violation of the Administrative Procedure Act (APA) while promulgating the rule. By late July 2018, the groups had secured an indefinite stay of the effective date of the rule. At the same time, the associations lobbied Congress which passed legislation (signed into law by the president in August 2018) to delay effectiveness of the final rule until 60 days after the aforementioned study was delivered to Congress. Given the new law, the court dismissed our suit without ruling on its merits.
If the final rule fails to address the issue, ILTA must decide whether to renew its complaint against the USGS.