HR 3584 Passes in House

This afternoon the House passed HR 3584, the Transportation Security Administration Reform and Improvement Act of 2015 by a voice vote. While 40 minutes was allocated for the debate of this bill, the House only needed 8 minutes. The bill will now move to the Senate.

While the bill has broad bipartisan support, it is not yet clear that the language in this bill will actually be considered in the Senate (though I suspect that it likely will be). We will have to see if the Senate Commerce, Science and Transportation Committee will have substitute language that they would rather see in the bill. The current House language, if it is considered, will likely be passed under unanimous consent procedures.

Committee Hearings – Week of 02-21-16

The House and Senate are back in Washington this week from their President’s Day recess. The spending issue season has started with three big budget hearings (for readers of this blog) this week. We also have a pipeline safety and cybersecurity hearings on the agenda.

FY 2017 Budget

The budget hearing process started in the Senate a couple of weeks ago and it gets into high gear in the House this week. Budget hearings are big picture looks at what government spending will look like in FY 2017 so don’t look for much in the way of details. The spending hearing will come later this spring.

The big three budget hearings this week are being held by House Appropriations Committee subcommittees. They are:

Department of Homeland Security Budget – Wednesday;

Department of Transportation Budget – Wednesday; and

Department of Defense Budget - Thursday

Pipeline Safety

The Subcommittee on Railroads, Pipelines, and Hazardous Materials of the House Transportation and Infrastructure Committee will be holding a hearing on Thursday on the “Reauthorization of DOT’s Pipeline Safety Program”. This is the start of the reauthorization process for FY 2017. The witness list includes:

• Marie Therese Dominguez, Administrator, PHMSA;

• Andrew Black, Association of Oil Pipe Lines (AOPL)

• Donald Santa, Interstate Natural Gas Association of America (INGAA)

• Cheryl Campbell, XCEL Energy; on behalf of the American Gas Association

• Carl Weimer, Pipeline Safety Trust

The Committee web site includes links to two interesting hearing documents; a staff briefing on the hearing issues and a staff review of the status of requirements from the 2011 Pipeline Safety Act.

Cybersecurity

The Subcommittee on Cybersecurity, Infrastructure Protection, and Security Technologies of the House Homeland Security Committee will be holding a hearing on Thursday on the "Emerging Cyber Threats to the United States". The witness list includes:

• Frank Cilluffo, Center for Cyber and Homeland Security;

• Jennifer Kolde, FireEye Threat Intelligence;

• Adam Bromwich, Security Technology and Response; and

• Isaac Porche, The RAND Corporation

On the Floor

There is one bill currently scheduled to come to the House floor this week that may be of specific interest to readers of this blog. On Tuesday HR 3584, the Transportation Security Administration Reform and Improvement Act of 2015, will be considered under suspension of the rules. This typically means that the Leadership expects that the bill will get broad bipartisan support. No amendments will be made under this provision.

The Senate does not provide a real schedule of what will be considered in the coming week, but there is an outside chance that an agreement to finish consideration of S 2012, the Energy Policy Modernization Act of 2015. Readers should remember that there was a lengthy amendment process (here, here and here) mostly completed on the bill, but it was being held-up over possible consideration of a variety of amendments on the Flint, MI water crisis.

Homeland Security Committee Marks-Up Multiple Bills

Last Wednesday the House Homeland Security Committee held a markup hearing that dealt with a large number of bills. As I mentioned in an earlier post some of those bills will be of specific interest to readers of this blog. Those include:

HR 3350, the Know the CBRN Terrorism Threats to Transportation Act;

HR 3490, the Strengthening State and Local Cyber Crime Fighting Act;

HR 3503, the Department of Homeland Security Support to Fusion Centers Act of 2015;

HR 3510, the Department of Homeland Security Cybersecurity Strategy Act of 2015;

HR 3573, the DHS Science and Technology Reform and Improvement Act of 2015;

HR 3583, the Promoting Resilience and Efficiency in Preparing for Attacks and Responding to Emergencies (PREPARE) Act;

HR 3586, the Border and Maritime Coordination Improvement Act; and

HR 3584, the Transportation Security Administration Reform and Improvement Act of 2015.

HR 3350 was adopted without amendments on a voice vote.

HR 3490

HR 3490 was amended and adopted by a voice vote. Rep. Ratcliffe (R,TX) proposed substitute language reflecting the changes made to the bill in a Subcommittee markup which was adopted by a voice vote. Two amendments were offered by Rep. Jackson-Lee (D,TX). The first dealt with chain-of-custody training. The second dealt reaffirmed the supremacy of the fourth and fifth amendments with respect to the provisions of this bill. Both amendments were adopted by voice vote.

HR 3503

HR 3503 was amended and adopted by a voice vote. Two amendments were introduced by Rep. Loudermilk (R,GA). The first dealt with a requirement for DHS to conduct an assessment for accessibility and interoperability of the information systems used to share homeland security information between the Department and fusion centers. The second required DHS to enter into a memorandum of understanding about what types of information fusion centers would share with DHS. Both amendments were adopted by voice vote.

HR 3510

HR 3510 was amended and adopted by a voice vote. Rep. Clawson (R,FL) introduced one amendment which dealt with privacy concerns. That amendment was adopted by a voice vote.

HR 3578

HR 3578 was amended and adopted by a voice vote. Eight amendments, including alternative language offered by Rep. Ratcliffe, were offered and all were adopted on voice votes. The alternative language made no substantive changes of particular interest to readers of this blog. Of the remaining seven amendments only one of specific.

That amendment by Rep. Langevin (D,RI) that modifies the new §322 the bill adds to the Homeland Security Act of 2002. That section addressed cybersecurity R&D and this amendment adds a new activity to be addressed by DHS S&T; “support, in coordination with the private sector, the review of source code that underpins critical infrastructure information systems” {new §322(b)(4)}.

HR 3583

This bill was amended and adopted by a voice vote. Of the seven amendments offered and adopted only one would be of specific interest to readers of this blog. It was offered by Rep. Payne (D,NJ), the Ranking Member of the Committee.

The amendment modifies 6 USC 321e(c)(1); adding a new duty to job of Department Chief Medical Officer. That new requirement is specifically requiring the provision of advice on “how to prepare for, protect against, respond to, recover from, and mitigate against the medical effects of terrorist attacks or other high consequent events utilizing chemical, biological, radiological, or nuclear agents or explosives”. This wording still limits that advice to ‘chemical agents’ so it would not include advice on response to industrial chemical incidents unless they were used as part of a terrorist attack.

HR 3586

The bill was amended and adopted by a voice vote. Rep. Miller (R,MI) offered an amendment in the form of a substitute. That substitute language softened much of the language in the bill but did not make any substantive changes of particular interest to readers of this blog. None of the other ten amendments that were adopted on this bill were of specific interest to readers of this blog.

HR 3584

This bill was amended and adopted by a voice vote. None of the eight amendments adopted on this bill substantially affected areas of specific interest to readers of this blog.

Moving Forward

All of these bills are apparently on Chairman McCaul’s (R,TX) agenda for moving to the floor of the House. I expect that there is a good chance that they will all make it to the floor prior to the end of the year and there is a chance that they will all arrive on the same day. With the broad bipartisan support seen in Committee I expect that they will all be considered under suspension of the rules with limited debate and not floor amendments. All of these bills should pass with substantial bipartisan support.

I do not see any of these bills as being a high priority for getting consideration in the Senate. Any of these bills could easily pass and none would have significant opposition; it is just a matter of legislative priorities about which of these might make it to the floor of the Senate.

Commentary

Not surprisingly, none of the suggestions that I have made here in this blog for improving any of these bills were included in the amendments that were adopted. Oh well, that is always the problem with being a voice crying in the wilderness; the few people that do hear you are not necessarily ones that can do anything about it.

There was that one odd amendment by Langevin on HR 3578 that kind of interests me. It does not cover control systems since this new section uses the definition of ‘information systems’ from 44 USC 3502 which interestingly only applies to Federal IT systems.

I’m not sure what Langevin was trying to accomplish with this ‘review of source code’. Okay I suppose that I could guess that he wants someone to check these IT programs for bugs, but reviewing the source code is not probably the most effective method of doing that. And the terminology ‘that underpins critical infrastructure information systems’ was obviously not written by a programmer. Now the vendor should already be conducting a source code review prior to publishing the software, so I am not sure what Langevin is expecting this to accomplish.

The real interesting thing about this amendment is not actually what it does or tries to do, but the fact that it is part of a new trend in legislation over the last month or so where there are bits of cybersecurity language being added to bills that are not overtly cybersecurity bills. In many ways this is probably a more practical way to cybersecurity provisions passed. Large, all-encompassing bills are going to always draw somebodies ire and we will see few of them actually become law. Small targeted provisions (even if poorly written like this one) in a bill that is not going to draw substantial opposition are much more likely to get passed.

The problem is, of course, how to you keep the ineffective or even offensive small cybersecurity provisions out of otherwise good legislation? Amendments like Langevin’s are not posted in advance for public review and I doubt anyone on the Committee (members or staff) are tech savvy enough to understand how ineffective this provision actually is. And once an amendment is adopted in full committee it is unlikely to get removed in the remaining portions of the legislative process.

Small cybersecurity provisions that are written into original legislation are likely to be seen by reviewers like me, but will generally be overlooked by most people. This means that only the most objectionable are likely to draw the kind of opposition that will have them removed from the bill or modified to make them more workable.

This new approach of adding small, limited cybersecurity provisions to other types of legislation is going to start to make things interesting in the legislative process.

HR 3584 Introduced – TSA Reform

Last week Rep. Katko (R,NY) introduced HR 3584, the Transportation Security Administration Reform and Improvement Act of 2015. Most of this bill deals with passenger air transportation security issues, but Title II of the bill does address some surface security issues. Those security issues include:

• Surface transportation security inspectors; and

• Security training for transportation personnel

Inspectors

Section 201 of the bill deals with surface transportation security inspectors. The bill would amend 6 USC 1113(d) to ensure that these inspectors have surface transportation experience when appointed to the position {§201(a)}. The changed paragraph would read:

The Secretary shall require that surface transportation security inspectors have relevant surface [added] transportation experience and other security and inspection qualifications, as determined appropriate [deleted].

Paragraph (b) would require TSA to report to Congress on the efficacy of their surface transportation inspection program. The reporst would address:

• The roles and responsibilities of surface transportation security inspectors.

• The extent to which the TSA has used a risk-based, strategic approach to determine the appropriate number of surface transportation security inspectors and resource allocation across field offices.

• Whether TSA’s surface transportation regulations are risk-based and whether surface transportation security inspectors have adequate experience and training to perform their day-to-day responsibilities.

• Feedback from regulated surface transportation industry stakeholders on the benefit of surface transportation security inspectors to the overall security of the surface transportation systems of such stakeholders and the consistency of regulatory enforcement.

• Whether surface transportation security inspectors have appropriate qualifications to help secure and inspect surface transportation systems.

• Whether TSA measures the effectiveness of surface transportation security inspectors.

• Any overlap between the TSA and the Department of Transportation as such relates to surface transportation security inspectors in accordance with 6 USC 1117.

Section 202 of the bill addresses the controversy surrounding the law enforcement status of investigators in the TSA Office of Inspection. The DHS IG is required to report to Congress on the methods used by TSA to certify inspectors as criminal investigators.

Training

Section 204 of the bill attempts to address the failure of TSA to provide regulatory guidance for transportation security training under 6 USC 1137 and §1184 for workers in the public transportation industry. Both training programs were required by Congress to be established in 2008. The bill requires TSA to report to Congress why it has not initiated the required rulemaking for these security training programs.  A similar training requirement under §1167 was not listed.

Moving Forward

Katko is the Chair of the Transportation Security Subcommittee of the House Homeland Security Committee and is thus responsible for the oversight of TSA. This is reflected in the fact that many of these provisions can be found in other bills that have been introduced in this Congress. The bill reflects the priority that Katko and presumably the Republican leadership on updating and reforming TSA operations.

It will be interesting to see how many amendments are made to this bill during the markup process, both in the Subcommittee and before the full Committee. I suspect that there will be a number of attempts to add improvements to the bill by members who would otherwise see their proposed TSA related legislation languish in Committee. TSA is a favorite target by folks on both sides of the aisle.

If the amendment process gets contentious, I would expect to see this bill move to the floor under a rule. If there are minimal amendments and they are handled by voice votes then the bill will probably be considered on the floor under suspension of the rules with limited debate and no floor amendments. In either case, the bill will almost certainly pass with bipartisan support.

Commentary

Congress mandated that TSA develop security training program requirements in the Implementing Recommendations of the 9/11 Commission Act of 2007 (Public Law 110–53). Separate sections of that law required training programs for public transportation, railroads and over-the-road busses. All three programs were directed to have the following provisions:

• Determination of the seriousness of any occurrence or threat;

• Crew and passenger communication and coordination;

• Appropriate responses to defend oneself, including using nonlethal defense devices;

• Use of personal protective devices and other protective equipment;

• Evacuation procedures for passengers and employees, including individuals with disabilities and the elderly;

• Training related to behavioral and psychological understanding of, and responses to, terrorist incidents, including the ability to cope with hijacker behavior, and passenger responses;

• Live situational training exercises regarding various threat conditions, including tunnel evacuation procedures;

• Recognition and reporting of dangerous substances and suspicious packages, persons, and situations;

• Understanding security incident procedures, including procedures for communicating with governmental and nongovernmental emergency response providers and for on scene interaction with such emergency response providers; and

• Operation and maintenance of security equipment and systems.

It boggles the mind that there has not even been an advance notice of proposed rulemaking on any of these three training programs. I understand that the transportation industry has been opposed to the establishment of these programs for a number of reasons including the very real concern about how they would conduct such training with a very dispersed employee population.

TSA is sure to respond in their report to Congress that they are having a hard time coming up with cost effective training requirements. Since there have been no surface transportation terrorist attacks in the United States it will be hard for TSA to come up with a realistic cost of such an attack that could be avoided by the training. And some of the training requirements set out by law will be quite expensive.

TSA’s job would be made much easier if Congress were to re-look at some of the more esoteric requirements and determine which ones were appropriate for front line employees and which were more important for management. Training exercises and emergency response exercises for a physically dispersed workforce, for example, are probably going to be more cost effective if they were conducted as table top exercises for managers and planners.

Bills Introduced – 09-22-15

There were 27 bills introduced in the House and Senate yesterday even though the House was only minimally present in a pro forma session. Three of those bills and a Senate Amendment may be of specific interest to readers of this blog:

HR 3583 To reform and improve the Federal Emergency Management Agency, the Office of Emergency Communications, and the Office of Health Affairs of the Department of Homeland Security, and for other purposes. Rep. McSally, Martha [R-AZ-2] 

HR 3584 To authorize, streamline, and identify efficiencies within the Transportation Security Administration, and for other purposes. Rep. Katko, John [R-NY-24]

HR 3586 To amend the Homeland Security Act of 2002 to improve border and maritime security coordination in the Department of Homeland Security, and for other purposes. Rep. Miller, Candice S. [R-MI-10]

S Amdt 2669 Making continuing appropriations for the fiscal year ending September 30, 2016, and for other purposes. Sen. Cochran, Thad [R-MS] To H J Res 61, Hire More Heroes Act of 2015

Very Brief Summaries

I’ll be watching HR 3583 for possible effects on the chemical safety programs under OHA.

HR 3584 will be of potential interest for changes to surface transportation security programs.

HR 3586 will watched for changes to the MTSA program.

This amendment to HJ Res 61 will be the first pass at a continuing resolution to fund the government through December 11^th. This will almost certainly be stalled by the Democrats because this version includes defunding of Planned Parenthood programs. The Republicans did try to defuse that issue by making those funds available to other women’s health programs, but the name ‘Planned Parenthood’ is as much a positive keystone for the Democrats as it is a negative keystone for the Republicans. There will be a cloture vote today on this amendment.

Side Note

Pro forma sessions of the House are typically attended by just three members; the acting speaker and a floor representative from each party and only involve administrative matters like receiving messages and introducing bills and resolutions. Every once in a while, however, there are actual legislative activities that take place and the results are the same as if the whole House was in attendance.

Yesterday was one of these occasions. During the six  minute long session the Foreign Affairs Committee was discharged from responsibility for H Res 50 that was introduced yesterday. The resolution was then brought to the floor for consideration, amended twice, and adopted by unanimous consent.

The resolution was introduced by Rep. Levin (D,MI) in response to concerns of the Ukrainian  community in Michigan about the Russian treatment of Nadiya Savchenko, a Ukranian military pilot, that was captured by pro-Russian forces in eastern Ukraine.

This is not an earth shattering bill and its passage obviously had the support of the leadership of both sides of the aisle in the House. It does show, however, that pro forma sessions in the House do need to be watched as legislative matters can be dealt with under unanimous consent rules without a quorum being present.