TSA and CFATS TWICs

Earlier this week the DHS Transportations Security Administration (TSA) published a legal interpretation notice in the Federal Register (81 FR 66671-66672) addressing the term ‘field of transportation’ as used in 6 USC 469(a). That section in the US Code requires TSA to collect a fee for conducting vetting services for a number of transportation security programs, including the Transportation Workers Identification Credential (TWIC) and the Hazardous Material Indorsement (HMI) for commercial driver’s license.

The Interpretation

While the complete legal discussion of this interpretation can be found here it is summarized in the Federal Register notice as:

“This interpretation states that the ``field of transportation'' under 6 U.S.C. 469(a) [link added] includes an individual, activity, entity, facility, owner, or operator that is subject to regulation by TSA, DOT, or the U.S. Coast Guard, and individuals applying for trusted traveler programs.”

The actual interpretation document makes it clear that TSA intends to take the same broad interpretation as used by the DOT in using the terms ‘hazardous material employee’ and ‘hazardous material employer’. This would mean that any chemical facility that is affected in anyway by any of the hazardous material transportation regulations would be covered under this interpretation of ‘field of transportation’.

Field of Transportation and TWIC

As I mentioned in a post earlier this week concerning a potential amendment to §469(a) this interpretation of ‘field of transportation’ does not directly affect the listing in 49 USC 70105(b)(2) of who is allowed to apply for a TWIC. It would seem to indicate, however, that TSA is going to use that definition to allow personnel to apply for TWICs under provisions of §70105(b)(2)(G), the “other individuals as determined appropriate by the Secretary”.

Commentary

This seems to open up chemical facilities covered under the Chemical Facility Anti-Terrorism Standards (CFATS) program to be able require that employees at those facilities must possess a TWIC as a standard of employment. This would greatly ease the paperwork burden under the CFATS personnel surety program.

I do not see any chemical facility owner challenging the legality of this interpretation since it would not place any new burden on those organizations. I can see various labor organizations questioning this interpretation as allowing their members who do not work at MTSA regulated facilities (which are specifically not covered under the CFATS program) from being required to obtain a TWIC as a standard of employment, particularly where employees are not reimbursed for the cost of the TWIC application.