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.

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.

Congressional Hearing Updates 5-11-11

Mid-week brought some changes to the Congressional Hearing schedule that may be of interest to the chemical security community. Two hearings were postponed and a new one was added.

Postponed Hearings

The House Energy and Commerce Committee got bogged down in their mark-up of HR 5 so they did not get a chance to work on HR 908, the CFATS extension bill proposed by members of that Committee. That mark-up was postponed until a date to be announced next week.

The Senate Commerce, Science and Transportation Committee did not provide a reason when they postponed their hearing today on cyber security. No future date was given. Last minute postponements are getting to be a habit with this Committee.

New Mark-up Scheduled

The House Homeland Security Committee announced yesterday that its Transportation Security Subcommittee will hold a markup hearing today on HR 1690, the MODERN Security Credentials Act. This bill is apparently being fast-tracked by the Homeland Security Committee as it was just introduced last week.

HR 1690 Introduced, Security Credentials

Last week Rep. Rogers (R, AL) introduced HR 1690, the Modernizing of Documentation and Elimination of Redundant Identification and (MODERN) Security Credentials Act. The bill would require the DHS Secretary to “consolidate and harmonize the Department of Homeland Security’s security threat assessment process for transportation workers” {§2(a)} and to reduce redundant background checks.


To allow the same background checks to be used for multiple security credentials the bill modifies the lists of permanently disqualifying {§4(a)} offenses and interim disqualifying offenses {§4(b)} that prohibit DHS from approving the issuance of the security credentials found in 46 USC §70105. Then bill would make these applicable to airport security credentials {§3(4)(B)} and State Hazardous Materials Endorsements for CDL’s {§2101(b)}.

The bill would not limit the authority of airport operators to deny security credentials to potential employees or the States to deny HAZMAT Endorsements to applicants based upon their internal security rules; the bill would prohibit States from requiring additional background checks though.

No specific mention is made of the CFATS program, but the way the bill is written it would certainly allow the Secretary the authority to write personnel surety regulations for high-risk chemical facilities that would give background check credit to holders of the various identification credentials based upon the 46 USC §70105 background checks.

An initial hearing on this bill was held before the Transportation Security Subcommittee (chaired by Rep. Rogers) of the House Homeland Security Committee on May 4th. None of the witnesses heard expressed any major concerns with the legislation. Airport operators were satisfied with its protection of their authority to issue/deny access credentials. Trucking company owners were satisfied with the consolidation of the background check requirements for HAZMAT Endorsements and TWICs. The labor representative was mainly satisfied with the redress process included for the DHS background checks.

It would be interesting to hear from ISCD how this legislation might affect their on-going attempts to craft personnel surety rules for the CFATS process. The CFATS program is probably not large enough to rate a seat at the witness table when the full Homeland Security Committee holds their hearing on this bill. Hopefully they will at least request written testimony from ISCD on the matter.