TSA Announces ASAC Meeting – 9-18-12

The Transportation Security Administration (TSA) announces in this Tuesday’s (available on line yesterday) Federal Register (FR 53902-53903) that the Aviation Security Advisory Committee (ASAC) will be holding a public meeting on September 18^th in Arlington, VA. While airport security is not generally one of the major concerns of this blog, this meeting will include receiving a report from the Air Cargo Security Subcommittee and that certainly may affect chemical transportation interests. Oh, yes, there is a brief cybersecurity mention that may be interesting.

Air Cargo Screening

The report on the actions of the Air Cargo Security Subcommittee (Sorry this is a link to the link to the report. The folks at the Federal eRulemaking Portal, www.Regulations.gov, have made this as complicated as possible. Direct links to documents are no longer available.) is actually the minutes of the Subcommittee’s July 11, 2012 meeting. A number of interesting recommendations came out of that meeting, including:

• TSA should coordinate with the Department of Homeland Security (DHS) to establish a formal process that would permit industry stakeholders to identify and submit cargo screening technology capability needs into the Department’s research and development (R&D) process.

• TSA should work with the international community- including through the International Civil Aviation Organization (ICAO), if appropriate – to promulgate harmonized, internationally-recognized standards for the development of air cargo screening technology.

• TSA should establish a formal process for receiving industry input on government policy at the earliest possible time. For purposes of this recommendation, “the earliest possible time” denotes the period of policy consideration, prior to its internal finalization and issuance for formal comment.

In many ways these motherhood and apple pie issues that few would have any serious concerns with. Yes there are those that decry any industry input into the rulemaking process, but no one understands the impact regulations would have on day-to-day operations better than does the regulated industry. As long as other impacted groups have substantial input in the regulation developing process there should be no real concern here.

Other Agenda Items

The other items on the agenda for this meeting are a report from the International Aviation Subcommittee and status reports on the following other subcommittees:

• Risk-Based Security

• General Aviation

• Passenger Advocacy

Presumably the Risk-Based Security Subcommittee deals with passenger screening actions. The other two should be relatively self-explanatory. No details on any of these three are available.

The International Aviation Subcommittee report does include a brief note about cybersecurity (page 2):

“Identification of infrastructure and procedural incompatibilities in security systems; identification of systemic vulnerabilities at the international level and how best to broadcast to appropriate parties. This would include among its primary targets the issue of cybersecurity [emphasis added], which could conceivably affect not just individual systems, but entire national infrastructures and their ability to communicate current threat and response information.”

I would like to commend the IAS report for including the affiliations of the subcommittee members. This was not done in the ACSS report.

Public Participation

This is a public meeting but since it will be held in a TSA secure facility, advance registration is required. That registration may be made by email to Dean Walter (Dean.Walter@dhs.gov). Space is limited and available on a first-come first served basis (actually the latter is my assumption, it is not stated in the meeting notice). A 30 minute public comment period will be held at the end of the meeting; 3-minute limit. Written comments may be submitted to Mr. Dean or by using the Federal eRulemaking Portal (www.Regulations.gov; Docket # TSA-2011-0008). Written comments must be filed by September 11^th, 2012 (an interesting coincidence that).

OMB Approves TSA Air Cargo Screening Final Rule

On Friday the Office of Management and Budget announced on their RegInfo.gov website that they had approved the TSA’s final rule on Air Cargo Screening ‘consistent with change’. The current interim final rules have been in effect since November 16^th, 2009. This final rule was required by the authorizing Implementing Recommendations of the 9/11 Commission Act of 2007 and was supposed to have been published by November of last year.

The ‘consistent with change’ approval means that TSA will be required to make some relatively minor changes to the final rule before it can be published in the Federal Register. I would normally expect this to take couple of weeks to complete.

S 3954 Introduced

Last week Sen. Casey (D, PA) introduced S 3954, the Air Cargo Security Act. While there are slight differences in wording between this bill and HR 6410, a bill introduced earlier last week by Rep. Markey (D, MA), that they should probably be considered companion bills; bills introduced into both the Senate and House that allow for nearly simultaneous committee consideration in both bodies.

Companion Bills

The introduction of a companion bill typically indicates that the original bill’s author seriously wants the bill to be considered and passed. The identification of a like minded legislator in the other body and the negotiation of the acceptance of the provisions included in the original bill require enough political energy that it demonstrates an increased level of political intent.

Most bills introduced in Congress never receive any political consideration beyond their original introduction. Most bills exist to be used as a reference during political campaigns to prove the author’s support for a particular political cause.

Basically Flawed Legislation

Ignoring for the moment the basic concept that forms the basis for these two bills, that all air cargo needs to be screened for explosive devices, these bills are basically flawed. As I explained in the blog on HR 6410, the timelines that are required in the bill to develop programs and processes, establish rules and regulations and to hire necessary inspectors and regulators are patently impossible to achieve.

Setting patently unachievable deadlines in a piece of legislation ensures that there will be objections to that bill from both the federal agencies involved and the potentially regulated community. Giving such opponents clearly identifiable and easily understood attack points makes it a near certainty that the opposition will succeed in killing the legislation.

Flawed Security Concept

It is a basic premise of security operations that it is not possible to prevent all security threats. First off, any security measure that can be defined will have flaws that can be exploited. Second, all security measures have a cost associated with them and the more complete the security measure is the more expensive it will be. The only way to completely prevent terrorists from using airplanes as a target is to shut down all airplanes.

The costs of security are always passed along to consumers either in the form of higher prices, if industry makes the security outlays or higher taxes if government pays for the security measures. The rules embodied in these two bills ensure that consumers would be hit from both sides as the air cargo shipping costs would increase and the TSA bureaucracy would have to increase.

There needs to be a serious discussion of the costs associated with the security measures versus the cost associated with the threat. News reports this weekend highlighted the claims of Al Qaeda that the costs of the recent ‘toner’ attacks were in the neighborhood of $4,200. What amount of money are we willing to spend to prevent these attacks? And will we be willing to spend a similar amount to prevent the next low cost attacks that Al Qaeda or other terror groups come up with?

Don’t get me wrong, I believe that reasonable security measures are required for high-risk targets. The higher the risk or potential consequence the higher the justifiable security costs. But, we need to have an explicit discussion of how we determine what costs are justifiable and which are just too high to pay.

HR 6410 Introduced

Yesterday Congressman Markey (D, MA) introduced HR 6410, the Air Cargo Security Act. It would be easy to say that this bill was a direct response to the recent ‘toner bombs’ incidents in cargo shipments coming from Yemen, but Rep. Markey has been a proponent of aggressive cargo screening for quite some time.

Cargo Screening Standards

This bill would essentially apply the same screening standards for shipments going into cargo planes that are currently being imposed on cargo going on passenger planes within the United States. TSA would have 18 months to have 50% of all such cargo screened and three years to have 100% of all cargo screened. There is no distinction in the bill between domestic or foreign origination of the cargo flights for the purposes of the screening requirements.

Shipping Facility Inspections

The bill would also require TSA to inspect “shipping facilities for shipments of cargo transported in air transportation” {§44922(a)(1)}. The Administrator would have 30 days to establish this inspection program. I don’t see any definition of ‘shipping facility’ in this bill, so this could be a problematic area of concern to many manufacturers that ship via air cargo (including FedEx?) aircraft.

A separate paragraph in the same section of the bill would require TSA to enter into agreements with “civil aviation authorities, or other appropriate officials, of foreign countries” {§44922(a)(2)} to ensure that foreign shipping facilities making cargo shipments to the US would similarly be inspected.

Both of the above requirements would have a 30-day deadline and would require a report to Congress in 210 days. The domestic deadline would apply to the establishment of the inspection program; this would be impossible to comply with because of the need to write the appropriate regulations and put them thru the public comment process. Applying the same deadline to the foreign agreement requirement is even more difficult to comply with since TSA would have to work with such a large number of foreign governments whose time tables cannot be mandated by Congress.

Cargo Handler Training

The bill would also require the Secretary to establish a training and evaluation program for cargo handlers “to ensure that the cargo is properly handled and safeguarded from security breaches” (§4). This provision has reference to foreign cargo handlers (thank goodness) and is given a 180-day deadline. Establishing regulations for such a program might be able to be accomplished within that time frame, but to actually establish a training program (after those regulations define the program requirements) will take some additional time to develop and implement.

Knee-Jerk Legislation

I understand Rep. Markey’s interest in increasing the security around air cargo shipments, given the recent attempt to send bombs to the United States through this transport mode, but I think that the time-limits given in this bill impose unrealistic standards that would make compliance by DHS impossible. More thoughtful consideration and perhaps some consultation with TSA would have made for a more realistic piece of legislation.

Of course with the limited time left in the 111th Session, perhaps Rep. Markey never intended this to be actually considered or passed. If that is the case, he may be trying to force the air cargo industry into taking pre-emptive security measures to prevent bills like this from becoming law.