Port Security Votes

As I noted last weekend the House was scheduled to consider three separate port security related bills; HR 3173, HR 4005, and HR 4251. All three were debated on Tuesday, but a lack of a quorum caused the actual votes to be pushed back. On Thursday the House passed all three bills; two by overwhelmingly bipartisan votes and the other by a voice vote.

While these bills have enjoyed wide bipartisan support in the House (and no significant opposition) there are only a limited number of days left before the summer recess and it is unlikely that these bills will be taken up by the Senate in that time. Between the summer recess and the election in November, no significant political work will get done in the Senate as both sides posture for November. The best hope for these three bills to actually pass this year will be during post-election lame duck session.

Congressional Hearings – Week of 6-22-12

As the summer recess approaches Congress tries to figure out what work will actually get done before the fall election. There is only one hearing of potential interest this week and that deals with TWIC issues. Interestingly two days before this hearing the full House will vote on two bills that deal with the issues being reviewed in this hearing.

TWIC Hearing

The House Transportation and Infrastructure Committee will be holding a hearing on Thursday that looks at the delays and problems with the management of the TWIC program. The witness list is interesting; a Coast Guard Rear Admiral, a policy wonk from DHS, a port authority representative and a union representative. No one from the Transportation Security Administration will be there to answer the various accusations and complaints.

Port Security Week

As the summer recess approaches the House leadership continues to bring up large numbers of bills that will be relatively easy to pass; it helps to counter the election year claims of being a ‘do nothing’ body. This week three of the sixteen bills that will be considered under suspension of the rules will deal with port security issues. Those bills are:

• HR 3173 To direct the Secretary of Homeland Security to reform the process for the enrollment, activation, issuance, and renewal of a Transportation Worker Identification Credential (TWIC) to require, in total, not more than one in-person visit to a designated enrollment center

• HR 4005 GAPS Act

• HR 4251 Securing Maritime Activities through Risk-based Targeting for (SMART) Port Security Act

I’ve addressed the last two bills in earlier blogs (HR 4005, HR 4251). The first bill is interesting in that it is basically included as a section (§205) in HR 4251. There is an interesting difference though, HR 3173 gives the Secretary 90 days to reform the TWIC application process and HR 4251 allows 270 days. I suppose that whichever passes last is the one that governs the time frame that DHS will ignore.

DOT Appropriations

The House will also consider HR 5272, the DOT and HUD appropriations bill. This will be considered under an open rule with a large number of amendments to be submitted from the floor. I’ve already addressed some of the chemical safety and pipeline safety provisions of the bill in an earlier blog. There is no telling what neat new amendments will be offered on the floor.

Homeland Security Markup Results

Yesterday’s markup hearing before the House Homeland Security Committee ended with four bills ordered to be reported favorably to the House. Unusual in this Congress is the fact that three of the four bills were adopted by unanimous consent and the fourth by a voice vote; making these bills poster children for bipartisan support.

The four bills are:

HR 2356, WMD Prevention and Preparedness Act of 2011;

HR 3173, TWIC renewal;

HR 3857, Public Transit Security and Local Law Enforcement Support Act; and

HR 4005, GAPS Act.

Typically when you see four bills covered in a single hearing like this at least two or three of them are passed without additional action. In each of these pieces of legislation there was at least one amendment (HR 3173) offered and adopted. In fact, there were a total of 14 amendments adopted and one was defeated. All but one of the adopted amendments were approved by either ‘unanimous consent’ or a voice vote.

Still nothing in any of these bills that directly affects chemical facility security, but there are a couple of interesting amendments that deserve a second look.

GAPS Act

The Committee did not take my suggestion about avoiding over-classification of the ‘gaps’ report. Rep. Clarke (D,NY) and Rep. Jackson-Lee (D,TX) stood mute on the subject leaving Rep. Sanches (D,CA) to address the issue. Rather than trying to reduce the designation to the legally specified PCII, Ms. Sanchez’ amendment added a new section to the bill requiring that the Secretary to share “relevant information regarding remaining gaps in port security of the United States” {§3}. Recipients should include government agencies as well as ‘port system owners and operators’.

The new section goes on to address the security clearance issue by requiring the Secretary, when appropriate, to “help expedite the clearance process”. This looks like a workable solution until you realize that there will only be a limited number of people that will be getting these clearances in any organization and sharing classified information within the organization is forbidden. Additionally, the physical security requirements for storing classified information (including approval and periodic inspection requirements) will ensure that many organizations that might need access to this information will not be able to get it.

TWIC Renewal

Rep. Sanchez was also responsible for sole amendment to HR 3173. It added another complaint about the current TWIC situation to the findings in §1; the delay in issuing rules for the use of TWIC Readers. This led to a subsequent addition to §2 that it is the ‘Sense of Congress’ that the Secretary should promulgate final TWIC Reader rules “as soon as practicable” {§2(2)}. Why anyone thinks that a ‘as soon as practicable’ requirement will carry any more weight than the original two year time limit is completely beyond me.

There is one additional part to this amendment that may have a practical effect. Section 2(3) extends the expiration of any Port Security Grants that have been awarded for TWIC projects. Such awards would not expire “before the issuance of the final TWIC reader rule”. Unfortunately the staffers need to go back and learn some grammar; this could allow those grants to expire on the date the TWIC Reader rule is published in the Federal Register. I would have suggested that the end of this subparagraph would read “before a period of six months has passed after the effective date of the final TWIC Reader rule.

Republicans Loose Vote

I don’t have much interest in HR 3857; I don’t live in a city with a real public transit system and these systems (where they do exist) do not directly service high-risk chemical facilities. But, it is interesting to note that on the only roll call vote of the hearing the Chairman was on the losing end of the vote and the Ranking Member was on the winning side. Rep. Cuellar (D,TX) proposed an amendment that would require grant recipients for the new ‘specialized patrol teams’ must submit a “sustainment plan for maintaining in future years the capability or capacity achieved with the grant funds”. A bipartisan majority over-rode the chairman; it doesn’t happen often, but when it does its worth looking at.

Moving Forward

It seems that there is little or no reason that these four bills wouldn’t pass if they reach the floor of the House. I don’t see any real reason why they couldn’t pass easily in the Senate as well. It all depends on the legislative inertia; if the leadership doesn’t move on these they languish as so many bills do during an election year.

S 1966 Introduced – TWIC Processing

Last week Sen. Ayotte (R,NH) introduced S 1966, a bill to reform the Transportation Worker Identification Credential (TWIC) processing. The bill would direct revisions of the application renewal process so that only a single visit would be necessary to the TWIC Processing Center.

This bill is very similar to HR 3173 that was introduced last month. The major difference in this bill is that it does not include as much verbiage describing the problem as the House bill. A minor difference in the action language of the bill may have significant implications however. As I noted in my earlier blog HR 3173 includes language that requires the processing change to require, “in total [emphasis added], not more than one in-person visit to a designated enrollment center” {§3}. That specific language is not included in this Senate bill.

One reading of the House bill would be that since all current TWIC holders have already made multiple trips to the enrollment center, subsequent trips for renewals would not be necessary. There could be all sorts of fraud and security implications of such a requirement that I addressed in an earlier blog.

The language in S 1966 demands that the new procedures “to require not more than 1 in-person visit to a designated enrollment center”. The subtle difference in the wording could certainly be argued to mean only a single trip for the initial card and only one for renewing that card. This argument would be less credible if the language in HR 3173 did not pre-date this bills introduction.

Interestingly the language in HR 3173 has already been incorporated in HR 3116, the DHS Authorization Bill, as adopted by the House. If it remains in the final version of the bill, S 1966 will become just another bill cluttering up the record of the 112^th Congress. The introduction of this bill will, however, certainly show up in Ayotte’s campaign literature.

House HS Committee Marks-up HR 3116 – DHS Authorization

Last week in two days of hearings the House Homeland Security Committee marked-up HR 3116, the Department of Homeland Security Authorization Act for Fiscal Year 2012. The lengthy hearing was necessary because of the more than 70 offered to Chairman King’s substitute language to the bill. While the adopted amendments came from members of both parties, the final vote on passage was a very partisan vote of 20 to 12.

As I mentioned in my earlier posting about this bill there is very little that directly addresses chemical or cyber security matters; much the same can be said about the amendments that were considered. Only four of the adopted and one of the rejected amendments dealt with chemical security matters (very broadly speaking) and only two of the rejected amendments dealt with cybersecurity matters.

Ammonium Nitrate Security Program

There is only one amendment that directly addresses chemical security issues and it was introduced by Ranking Member Thompson (D,MS). The amendment would add a new section modifying the underlying authorization authority for the Ammonium Nitrate Security Program. It addresses some technical issues with the definitions of ‘ownership’ and ‘possession’ that will have to be addressed in the interminably pending DHS regulations.

More importantly it would require DHS to exempt “persons engaged in transportation activities” from coverage under this rule. This is another attempt to ensure that people already vetted under the TWIC program do not have to be re-vetted under another program. Unfortunately, the broad wording of this amendment will cause problems for the regulation drafters (who already have enough problems with the Ag folks) in that it would not technically allow for even checking of the TWIC.

Chem and Bio Testing Equipment

The issue of evaluating chemical detection equipment was addressed by an amendment introduced by Rep. Turner (R,OH). This would require DHS to establish a “test and evaluation program for commercially available chemical and biological detection equipment” {Amendment (e)(1)}. Unfortunately the copy of this amendment available on the Committee web site so it isn’t clear how Turner expects DHS S&T to pay for this program.

TWIC

Two of the five chemical related amendments dealt with the Transportation Workers Identification Credential (TWIC); one adopted and one rejected. Both amendments closely paralleled separate bills addressing the same issues.

Rep. Richmond’s (D,LA) Amendment #1VV addressed TWIC application and renewal processing. This amendment very closely mimics HR 3173, co-sponsored by Richmond. That bill and this amendment would only allow the TSA to require an applicant or renewant (okay I made up that word) to make one visit to a “a designated enrollment center except in cases in which there are extenuating circumstances” {Amendment(b)} for purposes of enrollment, activation, issuance or renewal of a TWIC. The way the amendment is actually worded a renewant would not have to physically appear having already made at least one trip to the enrollment center.

In passing this amendment the Committee is ignoring the recommendations of the GAO, TSA and the requirements of Federal Information Processing Standards (FIPS) Publication 201-1 (addressed in an earlier blog post). They are bowing to political pressure from both unions and many TWIC related companies (so support from political bases of both parties). Once again politics trumps security.

The rejected TWIC amendment was introduced by Ranking Member Thompson and would have extended the expiration dates of current TWICs until December 31, 2014 or whenever DHS implements their final TWIC Reader regulations, whichever comes first. This was nearly identical to HR 1105 introduced by Thompson. Thompson wanted to avoid possible problems that might arise if the TWIC Reader regulations require some changes in the physical TWIC.

Maritime SAR Immunity

Rep. Rigell (R,VA) introduced an amendment that would have added specific language to the suspicious activity reporting (SAR) immunity provisions of this bill that would include maritime SAR reports. The language is much different than was included in Rigell’s HR 2846 but it accomplishes the same thing.

NOTE: I must admit that I have not included any mention of a number of failed amendments that Democrats introduced that would have attempted to address their concerns with the potential profiling issues they see involved in the SARs immunity issue. We will undoubtedly see these re-introduced and rejected if and when this bill gets to the floor of the House.

Cybersecurity

Both cybersecurity related amendments were rejected on party line votes and were introduced by Rep. Clarke (D,NY). The first would have changed NPPD to the Directorate of Infrastructure Protection and Cybersecurity and establish the National Cybersecurity Division within that Directorate. There was nothing really substantive about cybersecurity issues in that amendment.

The second amendment would have required DHS to train State and local law enforcement personnel on “cybersecurity standards, procedures and best practices” {Amendment (b)(1)}. Actually this would only be a pilot training program. This appears to be primarily directed at protecting law enforcement networks rather than any other information systems. It certainly would not address control system security.