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Dennis Bryant, Senior Counsel, Holland & Knight LLC After an extended delay, the Transportation Security Administration (TSA) is moving forward with its plan to implement the transportation work- er identification credential (TWIC). The zeal dis- played by the TSA may, though, interfere with the orderly and efficient development of the program, may impose excess costs upon the regulated com- munity, and may not materially enhance the mar- itime security of the United States. The requirement for a TWIC (or transportation security card) originated with the Maritime Transportation Security Act of 2002 (MTSA). After almost four years of planning, development, and prototype testing, TSA is affording the regulated community only 45 days to review, digest, and comment on its extensive, complex, and far-reach- ing proposal. As of this writing, a number of comments have been submitted to the docket, which remains open until July 6, 2006. This article will attempt to organize and summarize some of those comments, all of which deserve careful consideration. Opportunity for input: Numerous persons com- plained that there were too few public meetings (only four were scheduled); that the meeting loca- tions were inconvenient for many segments of the industry; and that the 45-day comment period was far too short for preparation and submittal of mean- ingful comments. Guidance issued by the Office of Management and Budget (OMB) recommends that the public be provided a minimum of 90 days to review and submit comments on proposed rule- makings. TSA does not fully explain why it has provided only this truncated review period. Small business impact: Federal law requires agencies involved in rulemaking to consider and minimize to the maximum extent feasible the impact of a rulemaking on small businesses that might be included within the ambit of the process. TSA, in its proposed rulemaking, lamely asserts: "At this time, we have not determined if this pro- posed rule would have a significant economic impact on a substantial number of small entities." Such an assertion leads one to wonder how much analysis actually went into this rulemaking and how much was just filling in the blanks to get the document into print. Close review of the transportation security card provision in the MTSA reveals that the TSA has considerable discretion regarding determination of what constitutes a "secure area" for a vessel or waterfront facility. There is nothing in the statute that would prohibit the TSA from determining that, for a small vessel and a small facility, there is no secure area. Indeed, for an open passenger vessel used for whale watching, such a conclusion seems logically mandated. If there is no secure area, then the basic TWIC requirement does not apply. Many small businesses could be exempted from the expenses inherent in the TWIC program if logic is allowed to prevail. Cost to mariners/employees: TSA estimates that the user fee to be assessed to mariners and employ- ees who come within the TWIC regulation will be approximately $139 per person. This does not include expenses incurred in traveling to the enroll- ment site to apply for the card and then returning 60 days or so later to be issued the card. If the indi- vidual has to travel a significant distance, room and board expenses will also be incurred. Finally, dur- ing these travel periods, the individual will not be performing his or her usual work and, thus, may lose income. If the employer pays these expenses, that will benefit the individual, but will still incur what is sometimes called a "lost opportunity" cost for society as a whole as no productive work is being performed. The cost-benefit analysis accom- panying the proposed rulemaking fails to fully address these costs. Delays in hiring: Many companies commented that the process of applying for and obtaining a TWIC is inherently slow - taking upwards of 60 days in usual cases, according to TSA estimates. In today's employment environment, marine employ- ers will be placed at a significant disadvantage to other employers if new workers can not be brought on board more rapidly. Companies have suggested that TSA include in the regulation a provision for probationary employees, who could start work while awaiting issuance of the permanent TWIC. Technology standard: The rulemaking envisions the TWIC utilizing something called the FIPS 201 standard for encryption and retrieval of the biomet- ric data that identifies the individual to whom the card is issued. Several comments indicate, though, that the FIPS 201 standard is still a work in progress. If so, it causes one to wonder whether the rulemaking is premature. This is particularly true given that the contract for card production has only recently been solicited and not yet awarded. Card reader feasibility: Considerable doubt exists as to whether a machine can be designed to read the TWIC cards in a rapid and reliable manner when used in the typical marine environment. It is one thing to operate card readers in a grocery store - and even then we have all seen customers have difficulty or for the computer located at a distance site to be unable to keep up with all the data being in-put by all the various users. The environment on a ship or at a ship repair facility or oil terminal is significantly more onerous. Humidity, salt, dirt, and grease are only some of the factors with which the card reader will have to cope. Many of the job sites, particularly for ships, will not have broad- band or even landline telephone links. Thus, the card reader will have to rely on wireless communi- cation. This will not only be slower than broad- band, but also will be more subject to disruption and interception. One can only imagine the frus- tration and chaos that will ensue when 100 or more Dennis L. Bryant, Senior Maritime Counsel at the law firm of Holland & Knight, Washington, D.C., is a con- tributing editor of MR/EN. TWIC Zeal Untempered July 2006 47 MR JULY2006 #6 (41-48).qxd 7/5/2006 12:04 PM Page 47
