Saturday, July 12, 2014

OMB Approves Revised TWIC ICR

Yesterday the OMB’s Office of Information and Regulatory Affairs announced that it had approved the Transportation Security Administration’s (TSA) request for an extension of the Transportation Workers Identification Credential (TWIC) information collection request (ICR) for a period of three years.

Data Issues

The whole ICR process is designed to ensure that the US Government is collecting information on individuals and organizations that it actually needs to fulfill its regulatory obligations and to minimize the burden on citizens and organizations providing the necessary data. While it may be argued that the original purpose has become somewhat quixotic in practice, it does provide for some sort of accounting for the data collection process.

In this case that data collection accounting purpose does not appear to be being properly fulfilled as there is a disconnect between the data provided by TSA and the data published by OIRA. The table below shows the annualized burden data submitted by TSA (Word® download link, pgs 16-17) and the data approved by OIRA.

Burden Hours
TSA Submission
OIRA Approval

It may be that OIRA was relying on an earlier version of the data submission document in providing their approval numbers, but the TSA document available on the OIRA site for this ICR is certainly in conflict with the data OIRA approved.

CFATS Issues

I noted in an earlier blog post that there had been no comments submitted in response to the 60-day ICR notice. It turns out that there were three comments received on the subsequent 30-day ICR notice; one from the Institute of Makers of Explosives (IME), one from the Lake Carrier’s Association, and one from a private individual.

The comments from IME and the TSA response to that comment may have important implications for the ongoing debate about the use of the TWIC as part of the Chemical Facility Anti-Terrorism Standard (CFATS) program implementation of a personnel surety program (PSP).

The IME has a long history of insisting that facilities covered under the CFATS program ought to be able to use the TWIC program as an integral part of the PSP. While transportation workers with TWICs are supported the proposed CFATS PSP (though certainly not to the extent requested by IME and other industry commentators), the use of TWICs by chemical employees that are not transportation workers does not appear to be authorized under the current TWIC program (see 49 CFR 1572.17(e)}.

In their ICR comment IME noted that:

“Additional categories of individuals would have to be “authorized by TSA.” We have asked TSA to establish and publish the process by which categories of individuals could petition TSA to be authorized to apply for TWICs. We are anxious to put in place a process to request TSA authorization so that we can petition the agency to allow those required to obtain a threat assessment under the new vetting programs of ISCD an alternative means of compliance.”

The TSA response to the IME comments concluded by saying:

“TSA is sympathetic to IME’s view, but it is constrained by law from authorizing non-transportation workers to pay a fee for the TWIC security threat assessment and credential.”

And since TSA is required to collect a fee from applicants for TWICs that covers the cost of the threat assessment and issuance of the credential, TSA will not be issuing TWIC to non-transportation chemical facility employees.

The House could have corrected this conflict when they approved HR 4007 since that bill clearly deals with the issue of the CFATS PSP, but it failed to address the issue. The Senate still has a chance to address this conflict when they consider HR 4007. The cleanest way to accomplish this would be to amend 46 USC 70105(2) to add:

“(H) an individual allowed unescorted access to a secure area designated in a chemical facility site security plan approved under 6 USC 2101.”

I doubt however that this will be addressed in the Senate. The surest way to stop HR 4007 from passing in this session of the Congress is to open the bill to the amendment process in the Senate. Unless the amendment process was tightly controlled (most appropriately by limiting amendments to within the Senate Homeland Security and Governmental Affairs hearing process) there would be a high likelihood that IST provisions or civil suit enforcement provisions would be added to the bill. It is clear that any such additions would ensure that the bill would not be re-approved in the House.

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