Monday, May 16, 2011

HR 1690 Marked Up in Subcommittee

Last week the Transportation Security Subcommittee of the House Homeland Security Committee held a mark up of HR 1690. The Subcommittee considered a single amendment in the form of a substitute submitted by Chairman Rogers (R, AL) and by a voice vote reported the amended bill to the full committee.

The substitute language adopted by the Subcommittee makes significant changes to the requirements of the proposed bill. It contains expanded requirements for the establishment of a Task Force to review the various lists of disqualifying crimes for an expanded transportation security credential. It revises the proposed Title XXI language being added to the Homeland Security Act to require the DHS Secretary to complete a rule making process within one year to require, among other things, that motor vehicle operators carrying security sensitive materials (to be defined in the regulations) must possess a transportation security card. The bill would also remove the requirement (at 49 USC 5103a) for a Federal background check for State Hazmat Endorsements for Commercial Driver’s Licenses.

Security Sensitive Materials

The wording of this revised bill could cause some confusion for manufacturers, shippers and transporters of hazardous materials. The term ‘Security Sensitive Material’ would be defined by the DHS Secretary “for the purposes of this title” {§2101(a)(1)}. This could allow the term to cover different materials under the rail shipments and road shipments. This could cause no end of confusion for shippers in determining which materials are covered under the differing shipping modes.

Trucking companies, freight forwarders and truck drivers would have another category of materials that would carry it’s own special brand of restrictions. Since the bill would give background check credit {§2104(a)}to current holders of HAZMAT Endorsements, one would expect most of those currently holding such endorsements to quickly apply for the new transportation credential, assuming that the DHS rule would allow a greatly reduced fee for such grandfathered individuals in it’s interpretation of the fee reduction requirement of §2104 in it’s interpretation of the fee reduction requirement of §2104(b).

Moving forward transporters will have to keep track of drivers that have both the hazmat endorsement for their CDL and the new transportation workers credential. While there will be significant overlap, it will be easier to get the endorsement than credential because of the lack of a need for the federal background check.

Transportation Credential and CFATS

This revised bill would not specifically require CFATS facilities to use the revised transportation security credential (essentially an expanded TWIC) for their personnel surety program, but it certainly removes some of the restrictions currently in place that would impede facilities from doing so.

First the language added to the Homeland Security Act would define the terms ‘transports’ or ‘transportation’ to mean “the movement of property and loading, unloading [emphasis added], or storage incidental to such movement” {§2106(a)(6)}. This would expand the meaning of ‘transportation worker’ to those that load or unload materials, to include hazardous chemicals.

Later, in discussing the establishment of an ‘outreach program’ about the transportation security credential it identifies those that should be included in the outreach program. It specifically includes “operators of facilities that require individuals to be issued a transportation security card” {§70105(s)(2) to be added to 46 USC}. This, at the very least, implies that CFATS facilities could use the revised TWIC for their personnel surety program.

Other Concerns

The areas of concern for other organizations impacted by this bill that I discussed in my earlier blog on this bill have been modified as well. Truck drivers and trucking companies concerns about the consolidation of security checks are addressed, but less comprehensively. Labor unions will have concerns about the removal of specific language concerning redress procedures for negative information reported in the background screening process. Airport operators lost extensive language protecting their right to control the issuance of security cards at their facilities, but will still find some language supporting that right.

The changes in these areas may impact some of the support for this bill that would have been expected for the original language. It remains to be seen how this will impact the possibility of this bill moving through the legislative process. The fact that the bill was approved by a voice vote should be encouraging to its supporters.

Chairman Rogers has found a neat way around the need for increasing the surface security enforcement arm of TSA to enforce this new rule by specifically allowing the DHS Secretary to shift that responsibility to the DOT Secretary via a memorandum of understanding between the two agencies. Presumably this MOU would in-turn allow State authorities, who do the bulk of enforcement truck stops, to check drivers hauling sensitive security material for their appropriate credentials. This will require some new training, but shouldn’t otherwise increase State enforcement costs.

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