Monday, June 1, 2009

Public Comments TWIC Reader ANPRM – 05-29-09 I

The comment period for the TWIC Reader ANPRM closed last week. As is usual there were a large number of last minute filings of comments by large corporations and industry groups. Actually, there was an even larger than normal number of comments filed. It is going to take a number of posts to review all of the comments that have been posted as of Saturday night and we can expect some to continue to trickle in for a couple of weeks. To save some time and space I’ll try to limit the discussion to new issues. In addition to the comments received, the Coast Guard posted a copy of the transcripts from the public meeting held in Arlington Virginia. The comments covered in today’s post came from: Georgia Ports Authority Golding Barge Line Delaware Bay and River Cooperative The American Waterways Operators Magnolia Marine Transport Sayville Ferry Service Black Ball Ferry Line The Fertilizer Institute Illinois Fertilizer and Chemical Association Southern States Cooperative James Transportation LLC Great Lakes Towing Company Georgia Ports Authority Comments Kevin Doyle of the Georgia Ports Authority makes a number of interesting points. He notes that train crew members are not mentioned in the ANPRM and recommends that as long as they stay along side their trains they should not be required to have their cards read. He questions the use of risk-based requirements for biometric validation; he believes it is not equitable. He makes the point that the sinking of a Risk Group C ship in a narrow shipping channel will block the channel as effectively as sinking a Risk Group A Ship. Golding Barge Line Comments Stirlin Hancock, the HR Manager for Golding Barge Line notes that vessels with small crews (less than 14) should not be required to have a TWIC Reader on board regardless of the Risk Group; personal identification in small crews is much more effective. He notes that his company conducts crew changes every 14 days at whatever ports their barges are at; there would not necessarily be a TWIC Reader available to verify TWIC. Delaware Bay and River Cooperative Comments Delaware Bay and River Cooperative is another operator of Oil Spill Response Vessel (OSRV) that objects to such vessels being assigned to Risk Group B. The American Waterways Operators Magnolia Marine Transport James Transportation LLC Great Lakes Towing Company Jennifer A Carpenter, Senior VP for the AWO, writes that they believe that the use of a TWIC Reader should not be required on vessels. They note that there is no legislative requirement to have Readers onboard. They also do not believe that adding an additional layer of security requirements on vessels by a new risk ranking is justified. They do not believe that any incremental increase in security based on this proposed rule can be justified. Sayville Ferry Service Comments John M Caldwell, the Company Security Officer for the SFS, notes that small, seasonal companies such as theirs would have difficulty justifying the cost of a TWIC Reader. Black Ball Ferry Line Comments Terry Troyer, the Company Security Officer for the BBFL, notes that the similarities between the Risk Group A and B requirements at MARSEC 2 and 3 belie the claim that these requirements are Risk Based. He also notes that the term ‘entry’ is not defined and vaguely used. He would like to see the number of personnel granted recurring unescorted access increased for Risk Group B and C vessels. The Fertilizer Institute Comments TFI recommends that the NPRM for this rule be released only after the TWIC Reader Pilot is completed and thoroughly reviewed. They also recommend that that review be included as an integral part of the NPRM. TFI does not believe that the current Risk Group definition adequately addresses the low relative risk at rural inland waterway ports that handle ammonium nitrate or anhydrous ammonia. They believe that the final rule should include a formal procedure for appealing the Risk Group ranking of a facility. They also note that the Risk Group ranking for facilities should be able to change based upon the presence or absence of Certain Dangerous Cargo (CDC). TFI notes that the cost of purchase and maintenance of the TWIC Readers is not addressed in this ANPRM. Illinois Fertilizer and Chemical Association Comments Kevin Runkle, Manager of Regulatory Services for the IFCA, writes that the many port, river and lake, facilities in Illinois that handle ammonium nitrate and anhydrous ammonia should be classified as Risk Group C. They contend that classifying them as Risk Group A or B “would unduly burden shipments of crop nutrient products to the nations food supply during an already short window of application” Southern States Cooperative Comments Jim Wright, Director of Environmental and Compliance Services for SSC, notes that the Coast Guard should develop separate regulations for facilities and vessels. He also writes that Risk Group definitions are do not adequately address the complexity of differences between the wide variety of facilities or vessels; site specific risk factors need to be considered. He also suggests that the ‘regulated community’ be given a chance to review and comment on the peer review being conducted by the Homeland Security Institute of the risk assessment methodology described in the ANPRM. My Comments on Comments Commentors continue to disagree with the methodology of determining to which Risk Group a facility or vessel should belong. The simplistic approach suggested in the ANPRM is easy to write and enforce; it is harder to justify as a risk-based strategy. The inland water way fertilizer facility situation is a bit more complex than noted by the two industry organizations. Bulk ammonium nitrate fertilizer is one of the easiest compounds to use to make very large vehicle-borne improvised explosive devices. This makes these high-turnover facilities particularly good targets for theft/diversion of this material. Of course, DHS is in the process of developing separate rules for the sale and distribution of AN so maybe the industry comments are appropriate. Comments about railroad crews were appropriate. There was no mention of these TWIC holders in the ANPRM. They should certainly be addressed. It would seem to me that the railroads serving Risk Group A and B port areas should be required to have TWIC Readers to verify the crew identity and TWIC cards. Train crews would certainly fall below the 14 person limit for RUA rules but they might not be known to security personnel at each high-risk facility. This would need to be addressed in the NPRM. Finally, looking at the suggested ‘separate regulation’ idea, the Coast Guard would probably be expected to have separate paragraphs describing the specific requirements for vessels, facilities and trains. That should be adequate to clear up the confusion that arose from the organization of the ANPRM.

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