NTTC Victory! TWIC Rule Changes Delayed Indefinitely in Court

 

Yesterday, U.S. District Court Judge Leonie Brinkema issued a stay in the ILTA v. DHS lawsuit that will delay the requirements that most port facilities install electronic TWIC readers indefinitely.  The International Liquid Terminals Association, the American Chemistry Council and the Fertilizer Institute have sued the Coast Guard and the Department of Homeland Security alleging that the decisions about which facilities will have to install electronic readers were made in contravention of the Administrative Procedures Act. 
 
Because the Coast Guard changed which facilities would be subject to the reader rule between the proposed and final versions of the rule, the associations are challenging the reader rule in court.  Yesterday’s stay means that facilities that would have been required to start electronically verifying TWIC cards beginning on August 23 will not have to do so until the full lawsuit is resolved.  When issuing her order yesterday, Judge Brinkema mentioned NTTC’s truck-related arguments as “the most persuasive” to her and as seminal to her decision to delay implementation. 
 
The government partially relented and agreed  that the facilities that were improperly added should not have to comply.  However, the two groups disagree over whether the reader requirement should be delayed for all port facilities or only those that were inappropriately added to the final rule.  If the requirement is not delayed for all facilities, shippers will be forced to install readers at one set of facilities now and, depending on the result of notice and comment on other facilities, possibly more facilities later.  The costs and logistical disruptions of performing multiple rounds of construction will last years and are likely to snarl truck traffic and delay vehicles entering these facilities. 
 
Because these disruptions impact our members’ abilities to timely transport to and from these facilities, NTTC filed an amicus brief, asking the court to grant the stay and let all regulated facilities install electronic readers at the same time—whatever the final group of regulated facilities may be.  Facilities can be divided into the following types:
 

  • Facilities that must electronically verify TWICs starting August 23, 2018 – those that transport 1,000 or more passengers daily;
  • Facilities that were correctly added to the rule and will eventually have to verify TWICs electronically – those that exchange hazardous cargoes (loading or unloading) between the facility and ships; and
  • Facilities that were incorrectly added to the rule.  The Coast Guard and DHS will have to consider the costs and benefits of adding these facilities to the rule:
    • Facilities that exchange hazardous cargoes (loading or unloading) between the facility and trucks, railroads, pipelines, or other modes of transportation, and
    • Facilities that generate or store hazardous materials onsite but do not load or unload them for transportation to or from the facility.

 
At this time, the government and the plaintiffs are setting a schedule to brief Judge Brinkema on the issues underlying the case.  After that, she will issue a final order regarding electronic readers.