HR 3011 Introduced – TSA Authorization

Somehow I missed reporting on the introduction of HR 3011, the Transportation Security Administration Authorization Act of 2011, at the end of September. As is usual with most TSA related legislation, the bulk of the bill deals with air security efforts. Given the history of attacks against air transportation this is probably understandable. There are, however, significant portions of the bill that deal with Surface Transportation Issues.

Streamlining Threat Assessments for Credentials

Subtitle A of Title III of the bill deals with security identification documents, specifically harmonizing the background checks requirements and procedures for the many different credentials currently required. This section of the bill is almost identical to HR 1690 that was reported out by the Subcommittee on Transportation Security (whose Chair, Mike Rogers (R,AL), introduced this bill) of the House Homeland Security Committee.

I reported earlier on the markup of that bill in Roger’s Subcommittee. The failure of the whole committee to take up that bill is probably (hopefully) explained by its inclusion in this TSA authorization bill.

Freight Rail Security

Section 323 of this bill would require the Assistant Secretary (head of the TSA) to “conduct a demonstration project in a freight rail system to test and assess the feasibility and effectiveness of technologies to strengthen the security of freight rail systems against terrorist attacks involving the use of improvised explosive devices and tampering with infrastructure to cause a derailment” {§323(a)}. There is no specific description of the types of technologies to be included in the project beyond the generic “detect improvised explosive devices on bridges and in tunnels” {§323(a)(1)} and “defeat improvised explosive devices left on rail tracks” {§323(a)(2)}.

Pipeline Security

Section 325 would require the Comptroller General to conduct a study to consider the relative responsibilities for DHS and DOT (under their current Memorandum of Understanding) for pipeline security activities including

• Protecting against intentional pipeline breaches;

• Responding to intentional pipeline breaches; and

• Planning for the recovery from intentional pipeline breaches.

It would be interesting to see how the subsequent report differentiates the responsibilities for the response and recovery for ‘intentional breaches’ and accidental releases. It would seem to me that much of the response responsibility and almost all of the recovery responsibility would lie with FEMA rather than TSA.

HAZMAT Tracking Requirements

Section 326 of the bill is a very short and overlookable part of the bill that would repeal 6 USC 1204(d). This provision could have significant effects on the trucking industry. Section 1204 (which came from the Implementing Recommendations of the 9/11 Commission Act of 2007) mandated that the Secretary, in consultation with DOT would “develop a program to facilitate the tracking of motor carrier shipments of security-sensitive materials”. Section 1204(d) clarified that the program would not “mandate the installation or utilization of a technology described under this section without additional congressional authority provided after August 3, 2007”.

Presumably this section is a backdoor way of providing that ‘additional congressional authority’, though it certainly doesn’t require the Secretary to put into place any rules requiring the installation of such devices. Given the TSA’s slow movement in any area of surface transportation security mandates (driven by the lack of clear authority and the shortage of enforcement manpower, to be sure) it would be surprising if any new regulations came into being because of this provision in this bill. It would, however, provide some political cover for Congress in the event of a successful attack on a hazmat truck.

Surface Transportation Advisory Committee

Section 341 of this bill would authorize the formation of the Surface Transportation Advisory Committee. This section has essentially been taken from HR 1900, the Surface Transportation and Mass Transit Security Act of 2011 which was introduced by Rep. Jackson-Lee (D,TX), the Ranking Member of Roger’s Subcommittee. I discussed this provision in an earlier blog posting on that bill.

Please note that while plagiarism is bad form in academia and reporting, in Congress it is high-art and a common method of acquiring support for a measure. Ms. Jackson-Lee will hardly complain about the inclusion of this provision in this bill.

Information Sharing

The final two sections in this bill deal with information sharing. Section 342 requires the development of a plan “to improve intelligence information sharing with State and local transportation entities” {§342(a)} while §343 requires the Secretary, within 180 days of the enactment of this bill, to “establish a mechanism to share with State and local transportation entities best practices from across the law enforcement spectrum” {§343(a)}.

Sadly lacking in either section is any mention of sharing information with the people that have primary responsibility for surface transportation security; the owners of surface transportation assets. The vast majority of surface transportation assets are in the private sector as are the bulk of security personnel.

The failure to share intelligence information with the asset owners is bordering on criminal neglect. Granted, there are intelligence security concerns, but those must be worked out. There is no way that the government at any level can afford to assume total responsibility for protecting surface transportation assets. And private security needs to have access to intelligence information to be effective.

Movement Forward

This bill was referred to both the Homeland Security Committee and the Judiciary Committee for action back on September 22^nd. There is no indication that it was further farmed out to subcommittees in either of those bodies. This doesn’t bode well for quick consideration of the bill, particularly the failure to refer the bill to the Transportation Security Subcommittee of the Homeland Security Committee.