Saturday, March 24, 2012

HR 4251 Introduced – Port Security

On Thursady, Rep Miller (R, MI), Chair of the Subcommittee on Border and Maritime Security of the House Homeland Security Committee, introduced HR 4251, the Securing Maritime Activities through Risk-based Targeting for Port Security (SMART Port Security) Act, a bill introduced to  authorize, enhance, and reform certain port security programs through increased efficiency and risk-based coordination within the Department of Homeland Security. Interestingly an ‘amendment in the form of a substitute’ has already been published on the Committee web site for this bill as it is already scheduled for Subcommittee markup next week; more on that in a later post.

Port Security Programs

Title I of this bill deals with security coordination efforts between various agencies within DHS under the maritime operations coordination plan. This has little to do specifically with chemical security so I’ll leave commenting on these provisions to those commentators with more knowledge of DHS CBP operations where this Title is principally focused.

Section 104 may end up having some sort of passing effect on the CFATS program. This section requires the Comptroller General to review and report on: “port security and maritime law enforcement operations within the Department to identify initiatives and programs with duplicative, overlapping, or redundant goals and activities, including the cost of such duplication” {§104(1)}.

Since the Department is trying to harmonize the chemical coverage of the MTSA and CFATS programs, it is possible that, depending on how advanced that harmonization efforts has become, the Comptroller’s General report may decide that the harmonization constitutes overlap that should be discouraged. I don’t think that that will be likely, not so much because of the lack of overlap issues, but rather there still won’t be a real harmonization effort for anyone to report upon.

TWIC Issues

While Title II of this bill is supposed to deal with maritime supply chain security (not the type of ‘supply chain security’ being addressed in the cyber security community, but rather the timely and safe flow of materials into this country without accompanying weapons of mass destruction), the last three sections of this title have nothing to do with maritime supply chain security. Instead, they address Congressional concerns about the Transportation Workers Identification Credential (TWIC) program.

Section 205 requires TWIC process reform, directing that the Secretary shall reform the TWIC application process “by not later than the end of 2012, when hundreds of thousands of current TWIC holders will begin to face the requirement to renew their TWICs” {§205a}. The specific reform being mandated in this section is that during the “enrollment, activation, issuance, and renewal” of a TWIC will not require “in total, not more than one in-person visit to a designated enrollment center” {§204(b)}.

It matters not that an independent investigation by the GAO last year recommended against the mailing of TWICs to applicants, citing security concerns. Ms. Miller and other members of Congress on both sides of the aisle are responding to complaints from both labor and management about the time consuming and complicated TWIC application, activation and issuance process. With the vast majority of TWIC holders facing going through the process again in the next two years as their current TWICs expire, these complaints are reaching a thunderous level during an election year. Similar provisions are now found in at least three separate pieces of legislation (HR 1143, HR 3116, and HR 3173).

Since there are regulations that will have to be changed to effect these reforms, it is unlikely that the Department would be able to meet the 270 day deadline provided in §205(b), even if it wanted to. It’s not a big problem any way, I suppose, TSA has not met a Congressional deadline yet that it couldn’t ignore.

Section 206 puts another deadline on DHS to complete a TWIC related regulation. It would require the final regulations for TWIC Readers to be completed by December 31, 2014. This time the affected agency is the Coast Guard and this is an acknowledgement that the August 20, 2010 requirement set by Congress in the Safe Port Act is dead and gone. In a silent acknowledgement that it has no practical means to enforce this deadline, Miller’s staff inserted a Stay of Expiration provision that TWICs could not expire until after such final regulations were issued. Of course this ignores the fact that according to a recent Coast Guard announcement, the TWIC chips shut down on their expiration dates.

To make matters more interesting the revised version of this bill to be considered next week in a subcommittee mark-up hearing changes the date from ‘December 31, 2014’ to ‘June 30, 2014’. Additionally, it adds a new paragraph (perhaps to address the dead chip issue) that requires the Secretary to reduce the cost to the applicant of re-issuing the cards (if it is determined that re-issuing is required to maintain the security value of the TWIC) “to the maximum extent possible while ensuring that the Transportation Worker Identification Credential program maintains adequate funding” {§206(c)(2)}. Since the application fee is supposed to cover the costs of administering the TWIC program this requirement only looks like Congress is doing something to reduce the costs to applicants.

The final section of this bill, §207, deals with TWICs and illegal aliens. It sets forth another new mandate for the DHS TWIC program that the Secretary shall put into place a process to ensure “to the maximum extent practicable, that an individual who is not lawfully present in the United States cannot obtain or continue to use a Transportation Worker Identification Credential” {§207(a)(1)}. Applicants would be required to prove identify (already required) and provide proof of “lawful presence in the United States” {§207(a)(2)(A)(ii)}. Additionally, ‘trusted agents’ (who actually process TWIC applications for TSA) must “receive training to identify fraudulent documents” {§207(a)(2)(B)}.

Finally §207(b) provides that TWICs will now also expire “in [certainly a typo for ‘on’] the date on which the individual to whom such a TWIC is issued is no longer lawfully present in the United States. There is no information about how TSA is expected to determine that a person is ‘no longer lawfully present’. Privacy rules would presumably prohibit the proactive sharing of TWIC status and/or citizenship status between government agencies, even within the Department.

Moving Forward

Since this bill was introduced last Thursday and will undergo a markup hearing this coming Tuesday, it appears to have the full endorsement of the Homeland Security Committee leadership. This frequently indicates that there will be a rapid movement of the bill to the floor of the full House. I don’t see anything here that would impede passage of either this original bill or its subsequent pre-hearing revision.

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