Government Update
Doug Affleck watches a computer monitor as he scans in Ward Gagnon's fingerprints at the port here Monday, Oct. 15, 2007. Gagnon is one of several transportation workers who applied for a Transportation Worker Identification Credential card at the Port of Wilmington, the nation's first port to start taking applications for the card. (U.S. Coast Guard photograph by Petty Officer 1st Class NyxoLyno Cangem)
Department, when implementing the Chemical Facility Anti-Terrorism Standards, has clearly stated that its security requirements will be scaled in accordance with the level of risk presented by the various regulated entities. Why are risk factors a major element of the latter rulemaking, yet are wholly ignored in the earlier rule? What did Homeland Security Secretary Michael Chertoff mean when, while announcing the port security grants on September 13, 2005, he said that security measures should be considered with regard to a "risk-based formula weighing threat, vulnerability, and consequence. Consequence considers risks to people, the economy, and national security. Vulnerability involves factors such as distance from open water, number of port calls, and presence of tankers. Threat includes credible threats and incidents and vessels of interest information."? The MTSA provides the Secretary (as well as the TSA and the Coast Guard) with broad authority to define what constitutes a "secure area" within which a TWIC would be required for unescorted access. There is nothing in the statute that requires the agencies to equate the "restricted area" regarding which a security plan is required and the "secure area" within which a TWIC is required for unescorted access. I would contend that that a whale-watching boat or an inland tug should have no secure area, thus exempting them from the TWIC requirement. Both are so small that no unauthorized person could come aboard pretending to be an employee without being noticed. This is not to say that these small vessels (or similar small facilities) should not have security plans. But the TWIC program provides a much higher level of security, one that is realistically unnecessary on low-risk vessels and facilities. Just for a moment, imagine the two crewmembers on a whale-watching boat inspecting each other's TWIC? Even now, as the Transportation Security Administration and the US Coast Guard commence the TWIC enrollment process, it is not too late to insert a modicum of logic into the application process. After all, on September 28, 2007, the agencies amended the TWIC final rule to, among other things, provide that marine facilities located in the Commonwealth of the Northern Mariana Islands will "have no secure areas." This change was made because non-resident alien workers in the Commonwealth are not required to have visas and, thus, are ineligible for TWIC cards. The amendment also provides that mariners serving aboard a vessel located at a facility will not be required to have a TWIC when they are working at the facility in secure areas immediately adjacent to the vessel. These amendments, albeit somewhat belated, are logical. Both amendments required the agencies to exercise some degree of imagination in order to achieve a necessary balance between the needs of security and the needs of commerce. It is time for further exercise of imagination, so that well-meaning security measures don't end up doing more damage to the maritime economy than a terrorist is likely to inflict.
20 Maritime Reporter & Engineering News