Tuesday, September 27, 2016

S 3379 Introduced – Transportation Security

Last week Sen. Thune (R,SD) introduced S 3379, the Surface Transportation and Maritime Security Act. The bill includes requirements for a number of GAO studies and TSA management reviews with the intent of increasing the TSA’s focus on surface transportation security issues. Only three of the provisions of the bill are likely to be of specific interest to readers of this blog:

TWIC Background Checks

Section 17(a) of the bill would require the DHS Secretary to “establish a process to improve background checks and terrorism vetting processes” {§17(a)(1)}. Those improvements are to include:

• Establishing an entity within the Office of Intelligence and Analysis to provide guidance on security threat assessment processes;
• Conducting a comprehensive risk analysis of the security threat assessment processes to identify areas needing additional internal controls and quality assurance procedures and implementing those procedures;
• Improving fraud detection techniques;
• Updating guidance and finalizing a manual for Trusted Agents and adjudicators to ensure clear guidance on processes and regulations; and
• Establishing quality controls to ensure consistent procedures to review adjudication decisions and terrorism vetting decisions.

The remainder of the section deals with requiring a comprehensive review of the Transportation Security Card Program by DHS. Once the review is conducted the bill would require DHS to provide a corrective action plan to Congress to correct any identified deficiencies. Then the Department Inspector General would be required to report to Congress on the implementation of that action plan.


Section 19 of the bill adds a new paragraph (c) to 6 USC 469. That section of the US Code deals with establishing fees for credentialing and background investigations. This amendment would establish that the phrase ‘individuals engaged in the field of transportation’ in §469 will include:

• Individuals required to obtain a transportation worker identification credential under section 101.514 of title 33, Code of Federal Regulations;
• Individuals required to obtain a hazardous materials endorsement on a commercial driver’s license issued by a State under section 5103a of title 49, United States Code; and
• Personnel at a facility that engages in loading, unloading, handling, or storage incidental to transportation who are subject to background checks under section 27.230(a)(12) of title 6, Code of Federal Regulations [Chemical Facility Anti-Terrorism Standards (CFATS) program].”.


Section 21 of the bill amends 49 USC 5103a adding a new subparagraph (d)(3) specifying that an individual in possession of a Transportation Workers Identification Credential (TWIC) has met the “met the background records check required” for the hazardous materials indorsement (HMI) for a commercial driver’s license.

Moving Forward

Thune is the Chair of the Senate Commerce, Science and Transportation Committee, the Committee to which this bill was referred for consideration. He has bipartisan support in the leadership of that Committee from his four cosponsors {Sen. Nelson(D-FL), Sen. Fischer (R-NE), Sen. Booker (D-NJ), and Sen. Blumenthal (D-CT)}. This bill will almost certainly move forward in the lame duck session. If it gets to the floor of the Senate (problematic depending on how much push Thune puts behind the bill) it would probably pass under the Senate unanimous consent process.


I noted in my earlier post on this bill that it was unusual that the bill was not also referred to the Senate Homeland Security and Governmental Affairs Committee. I’m pretty sure that this was done to avoid any delays in getting the bill considered on the Senate floor and not for petty inter-committee politics.

That is probably the reason that the CFATS and TWIC section of this bill was so ineffectually done. In amending 6 USC 469 this bill almost certainly would have no actual effect on the TWIC process. The bill should have amended 49 USC 70105(b)(2); that paragraph deals with who should be issued a TWIC. The current amendment would not change that.

This is an issue since Congress passed the Protecting and Securing Chemical Facilities from Terrorist Attacks Act (PL 113-254) specifically authorizing the use of the TWIC as a part of the personnel surety program. With the TWIC only authorized for transportation personnel working in and around US ports, this only solved part of the problem. If chemical facility workers (not working at a facility covered under the Maritime Transportation Security Act) were authorized to apply for a TWIC, the CFATS covered facilities could require their employees to get TWICs and ease a bunch of the paperwork burden of the CFATS Personnel Surety Program (PSP).

The fact that requiring employees to pay the TWIC registration fee passes the cost of personnel surety to the employees is frequently overlooked in Congressional conversations about TWIC and CFATS. I suppose that companies could be expected to reimburse employees for the expense (and some certainly would), but that has not come up in any of the talks that I have heard about TWIC and CFATS.

It is disappointing that this bill was introduced so late in the session. Many of the issues addressed (ineffectually to be sure) in this bill have been on the Congressional radar for a number of years. There have been a number of transportation related bills that could have included these inoffensive, bipartisan-supported measures. Instead they were cobbled into a bill that really has little chance to reach the President’s desk because of the politics of the end-of-session in a Presidential election year.

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