[Senate Report 115-305]
[From the U.S. Government Publishing Office]
Calendar No. 524
115th Congress } { Report
SENATE
2d Session } { 115-305
_______________________________________________________________________
TRANSPORTATION WORKER IDENTIFICATION CREDENTIAL ACCOUNTABILITY ACT OF
2018
__________
R E P O R T
of the
COMMITTEE ON COMMERCE, SCIENCE, AND TRANSPORTATION
on
S. 3094
July 19, 2018.--Ordered to be printed
______
U.S. GOVERNMENT PUBLISHING OFFICE
79-010 WASHINGTON : 2018
SENATE COMMITTEE ON COMMERCE, SCIENCE, AND TRANSPORTATION
one hundred fifteenth congress
second session
JOHN THUNE, South Dakota, Chairman
ROGER F. WICKER, Mississippi BILL NELSON, Florida
ROY BLUNT, Missouri MARIA CANTWELL, Washington
TED CRUZ, Texas AMY KLOBUCHAR, Minnesota
DEB FISCHER, Nebraska RICHARD BLUMENTHAL, Connecticut
JERRY MORAN, Kansas BRIAN SCHATZ, Hawaii
DAN SULLIVAN, Alaska EDWARD J. MARKEY, Massachusetts
DEAN HELLER, Nevada TOM UDALL, New Mexico
JAMES M. INHOFE, Oklahoma GARY C. PETERS, Michigan
MIKE LEE, Utah TAMMY BALDWIN, Wisconsin
RON JOHNSON, Wisconsin TAMMY DUCKWORTH, Illinois
SHELLEY MOORE CAPITO, West Virginia MARGARETWOODHASSAN,NewHampshire
CORY GARDNER, Colorado CATHERINE CORTEZ MASTO, Nevada
TODD C. YOUNG, Indiana JON TESTER, Montana
Nick Rossi, Staff Director
Adrian Arnakis, Deputy Staff Director
Jason Van Beek, General Counsel
Kim Lipsky, Democratic Staff Director
Christopher Day, Democratic Deputy Staff Director
Calendar No. 524
115th Congress } { Report
SENATE
2d Session } { 115-305
======================================================================
TRANSPORTATION WORKER IDENTIFICATION CREDENTIAL ACCOUNTABILITY ACT OF
2018
_______
July 19, 2018.--Ordered to be printed
_______
Mr. Thune, from the Committee on Commerce, Science, and Transportation,
submitted the following
R E P O R T
[To accompany S. 3094]
[Including cost estimate of the Congressional Budget Office]
The Committee on Commerce, Science, and Transportation, to
which was referred the bill (S. 3094) to restrict the
department in which the Coast Guard is operating from
implementing any rule requiring the use of biometric readers
for biometric transportation security cards until after
submission to Congress of the results of an assessment of the
effectiveness of the transportation security card program,
having considered the same, reports favorably thereon without
amendment and recommends that the bill do pass.
Purpose of the Bill
The purpose of S. 3094 is to prohibit the United States
Coast Guard (USCG) from implementing the use of biometric
readers for biometric transportation security cards, known as
Transportation Worker Identification Credentials (TWIC), until
after the completion of an ongoing study on the effectiveness
of the TWIC program.
Background and Needs
Shortly after September 11, 2001, Congress called for the
establishment of a common credential for personnel requiring
unescorted access to secure areas of the national
transportation system. The TWIC program was developed in
response to legislative provisions in the Aviation and
Transportation Security Act of 2001\1\ and the Maritime
Transportation Security Act of 2002,\2\ and followed Government
standards for secure credentials. The Transportation Security
Administration (TSA) manages the program, working in
conjunction with the USCG. Specifically, the TSA manages the
credentialing, and the USCG manages the port-side security
management and use of the credential.
While the TWIC program was initially intended to apply to
all transportation sectors, issues with the program in the
maritime sector have made it unlikely that the program will be
extended to other modes until those problems are resolved. In
May 2011, the Government Accountability Office (GAO) issued a
report entitled ``Transportation Worker Identification
Credential: Internal Control Weaknesses Need to Be Corrected to
Help Achieve Security Objectives.''\3\ In this report, the GAO
found numerous problems with the TSA's administration of the
TWIC program. Most notably, GAO investigators were successful
in accessing ports using counterfeit TWIC, authentic TWIC
acquired through fraudulent means, and false business cases
(reasons for accessing secure areas). The report also found
that the Department of Homeland Security (DHS) did not have
adequate internal controls to ensure that only qualified
individuals can acquire TWIC. The GAO recommended that the DHS
conduct an effectiveness assessment of the TWIC program, and
Congress has required that the TSA and the USCG conduct this
review before publication of the card reader rule (see
below).\4\
In April 2013, the GAO issued a report on the TWIC reader
pilot project entitled ``Transportation Worker Identification
Credential: Card Reader Pilot Results are Unreliable; Security
Benefits Need to Be Reassessed.''\5\ This report characterized
the pilot results as ``incomplete, inaccurate, and unreliable
for informing Congress and for developing a regulation about
the readers.'' The GAO recommended that Congress halt the DHS's
efforts to promulgate a final regulation on TWIC card readers
until the successful completion of a security assessment of the
effectiveness of the TWIC program. On March 22, 2013, however,
the DHS issued a notice of proposed rulemaking (NPRM) on card
reader requirements for TWIC and issued a final rule on August
23, 2016, with an effective date of August 23, 2018.
Stakeholders complained of discrepancies between the NPRM and
the final rule regarding the types and numbers of facilities
that would be required to install TWIC readers, and believed it
unnecessarily burdening to low-risk facilities.\6\
Additionally, those stakeholders from low-risk facilities were
not given an opportunity to comment. An example of a facility
captured in the NPRM is one that transfers explosive chemicals
from a ship to a shoreside complex. A facility that was
captured by the final rule could be one that stores lower
quantities of fuel on site for its own use. The proposed rule
contemplated requiring TWIC readers at less than 200
facilities; the final rule captured several thousand
facilities, though there remains uncertainty as to the exact
number. The USCG agreed with stakeholders and promised to
clarify which facilities were captured in the rule.
On December 16, 2016, President Obama signed into law the
Act entitled ``An Act to Require the Secretary of Homeland
Security to Prepare a Comprehensive Security Assessment of the
Transportation Security Card Program'' (Assessment Act)\7\ to
improve the security of the TWIC program.\8\ The Assessment Act
requires the DHS to commission an assessment of the
effectiveness of the TWIC program within 60 days after the date
of enactment of that Act. The DHS has recently contracted with
RAND to conduct the mandated review and RAND estimates the
study will be completed in 1 year.
Due to delays in both the DHS's awarding the contract for
the above TWIC program assessment and in providing
clarification for which facilities are affected by the TWIC
Reader Rule, in December 2017, Senator Thune, Senator Fischer,
and other legislators\9\ wrote to the Secretary of Homeland
Security for additional information.
On June 21, 2018, the USCG announced the release of an NPRM
delaying the implementation of the TWIC Reader Rule for many of
the facilities. The delay should allow for clarification as to
which facilities are meant to be included in the increased
security protocol and will provide time to install TWIC
readers. However, it does not specifically identify which
facilities are exempt, nor does it allow time for those
facilities not exempt to install TWIC readers. S. 3094 will
delay any implementation until the RAND study is complete,
ensuring the significant investment by industry provides the
expected added security.
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\1\P.L. 107-71. (https://www.gpo.gov/fdsys/pkg/PLAW-107publ71/
content-detail.html)
\2\P.L. 107-295. (https://www.gpo.gov/fdsys/pkg/PLAW-107publ295/
content-detail.html)
\3\GAO-11-657. (https://www.gao.gov/products/GAO-11-657)
\4\This assessment was required by the Consolidated Appropriations
Act, 2014 (P.L. 113-76).
\5\U.S. Government Accountability Office, Transportation Worker
Identification Credential: Card Reader Pilot Results are Unreliable;
Security Benefits Need to Be Reassessed, GAO-13-198, May 2013.
\6\81-FR-57652. (https://www.federalregister.gov/documents/2016/08/
23/2016-19383/
transportation-worker-identification-credential-twic-reader-
requirements)
\7\P.L. 114-278; 130 Stat. 1410.
\8\P.L. 114-278. (https://www.congress.gov/114/plaws/publ278/PLAW-
114publ278.pdf)
\9\Chairs of the following congressional committees: the Committee
on Commerce, Science, and Transportation of the Senate; the
Subcommittee on Surface Transportation and Merchant Marine
Infrastructure, Safety, and Security of the Committee on Commerce,
Science, and Transportation of the Senate; the Subcommittee on
Transportation and Protective Security of the Committee on Homeland
Security of the House of Representatives; and Subcommittee on Border
and Maritime Security of the Committee on Homeland Security of the
House of Representatives.
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Summary of Provisions
If enacted, S. 3094 would prohibit the USCG from
implementing the use of biometric readers for biometric
transportation security cards until after the completion of an
ongoing study on the effectiveness of the TWIC program as
required by the Assessment Act.
Legislative History
S. 3094 was introduced on June 20, 2018, by Senator
Sullivan (for himself and Senator Peters). On June 27, 2018,
the Committee met in open Executive Session and, by voice vote,
ordered S. 3094 reported favorably without amendment.
H.R. 5729, a substantially similar measure, unanimously
passed the House of Representatives on June 10, 2018.
Estimated Costs
In accordance with paragraph 11(a) of rule XXVI of the
Standing Rules of the Senate and section 403 of the
Congressional Budget Act of 1974, the Committee provides the
following cost estimate, prepared by the Congressional Budget
Office:
S. 3094--Transportation Worker Identification Credential Accountability
Act of 2018
S. 3094 would prohibit the U.S. Coast Guard from
implementing a rule that, under current law, will take effect
on August 23, 2018. The rule requires owners and operators of
certain vessels and facilities regulated by the Coast Guard to
conduct electronic inspections of workers' biometric security
credentials. S. 3094 would suspend implementation of the rule
until 60 days after the Secretary of Homeland Security has
reported to the Congress on the efficacy of such credentials
for enhancing security.
CBO estimates that enacting S. 3094 would not significantly
affect the federal budget. Delaying implementation of the
affected rule would not alter the timing or magnitude of cash
flows related to federally issued credentials nor would it
significantly affect the Coast Guard's administrative costs,
which are subject to appropriation. The Department of Homeland
Security is already required to complete an assessment related
to the effectiveness of credentials issued to transportation
workers.
Enacting S. 3094 would not affect direct spending or
revenues; therefore, pay-as-you-go procedures do not apply.
CBO estimates that enacting S. 3094 would not increase net
direct spending or on-budget deficits in any of the four
consecutive 10-year periods beginning in 2029.
S. 3094 contains no intergovernmental or private-sector
mandates as defined in the Unfunded Mandates Reform Act.
On June 28, 2018, CBO transmitted a cost estimate for H.R.
5729, the Transportation Worker Identification Credential
Accountability Act of 2018, as ordered reported by the House
Committee on Homeland Security on June 6, 2018. The two bills
are similar, and the CBO's estimated costs are the same for
both bills.
The CBO staff contact for this estimate is Megan Carroll.
The estimate was reviewed by H. Samuel Papenfuss, Deputy
Assistant Director for Budget Analysis.
Regulatory Impact Statement
In accordance with paragraph 11(b) of rule XXVI of the
Standing Rules of the Senate, the Committee provides the
following evaluation of the regulatory impact of the
legislation, as reported:
NUMBER OF PERSONS COVERED
S. 3094, as reported, would delay the implementation of the
TWIC Reader Rule, and therefore would alleviate thousands of
transportation workers and hundreds of businesses from an
unproven regulatory requirement.
ECONOMIC IMPACT
Enactment of this legislation is not expected to have a
negative impact on the Nation's economy.
privacy
The reported bill is not expected to impact the personal
privacy of individuals.
paperwork
S. 3094 would not create increases in paperwork burdens if
enacted.
Congressionally Directed Spending
In compliance with paragraph 4(b) of rule XLIV of the
Standing Rules of the Senate, the Committee provides that no
provisions contained in the bill, as reported, meet the
definition of congressionally directed spending items under the
rule.
Section-by-Section Analysis
Section 1. Short title.
This section would provide that the bill may be cited as
the ``Transportation Worker Identification Credential Act of
2018.''
Section 2. Restriction on implementation of transportation worker
identification credential biometric reader rule.
This section would prohibit the USCG from implementing the
use of biometric readers for biometric transportation security
cards until after the completion of an ongoing study on the
effectiveness of the TWIC program.
Changes in Existing Law
In compliance with paragraph 12 of rule XXVI of the
Standing Rules of the Senate, the Committee states that the
bill as reported would make no change to existing law.
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