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.

HR 4251 Reported in House – Port Security

Early this week the House Homeland Security Committee filed their report on HR 4251, the SMART Port Security Act. Since the Committee publishes the full text of amendments they consider we don’t have any surprises in the language of the bill in the report. So that means the only reason to review the Report is to see the explanations that the Committee provides for the provisions of the bill; this helps explain congressional intent.

Maritime Security Redundancies

In my initial blog post on this bill I noted that the provision in §104 for a GAO review of DHS port security program to identify overlapping provisions might identify such an overlap between the MTSA and CFATS programs in port areas. The explanation of this provision (pg 19) does not specifically mention CFATS. That doesn’t mean that the GAO report won’t address the issue.

TWIC Provisions

There are four TWIC provisions in this bill. They are:

Sec 205: Transportation Worker Identification Credential Process Reform;

Sec 206: Expiration of Certain Transportation Worker Identification Credentials;

Sec 207: Securing the Transportation Worker Identification Credential Against Use by Unauthorized Aliens; and

Sec 208: Report on Federal Transportation Security Credentialing Programs.

The Committee takes a very narrow view of the TWIC process, focusing on the ‘burden’ on the workers (and this is a Republican Congress). They note (pg 23):

“The Committee believes that the current requirement to visit a TWIC enrollment center multiple times is an onerous, unnecessary, burden for workers in the maritime industry, such as merchant vessel operators and truck drivers, who rely on obtaining the credential for employment.”

They ignore the security aspects of what is, at base, a security document. A year ago the Government Accounting Office looked at the security implications of mailing the TWIC card instead of having applicants come in and activate the card at a TWIC issuing center. They concluded that this could compromise the integrity of the TWIC system. Security is frequently inconvenient; politicians need to learn this before it is too late.

The provisions of §206 would extend all current TWIC expirations until the final TWIC Reader rule is published. The idea being that the TWIC isn’t really a TWIC until the biometric features available only through TWIC Readers come into full use. Congress tried mandating a date for the publication of the TWIC Reader rule, but DHS has diligently ignored that requirement. Now this section is designed to “provide the Department motivation to issue the rule at the earliest possible date” (pg 23); kind of sad actually.

Section 207 would require proof of US citizenship or legal residency at the time of application or renewal of TWIC. It would also require the expiration of TWICs issued to legal residents to expire no later than the expiration of their residency documents. The Committee is trying to “ensure all TWIC holders are authorized to work and are lawfully present in the U.S.” (pg 23).

The final TWIC section deals with harmonizing the background checks (known as ‘security threat assessments’ or STAs) for are a number of identification documents that issued by DHS. Each document has a slightly different STA requirement set by regulation. TSA has a regulation in the works that is supposed to address this issue (RIN 1652-AA61; Standardized Vetting, Adjudication, and Redress Services), but it has been in the works for a while. The Committee Report notes that:

“The Committee believes the Department should issue the Universal Rule as soon as possible, in order to reduce the unnecessary cost and duplicative regulatory burden on transportation workers.” (pg 24)

Way Forward

This bill was passed with broad bipartisan support in the Homeland Security Committee. This is a bill that has a decent chance of making it to the floor of the House before the Summer Recess, but making it through the Senate is more problematic because of the approaching election. It wouldn’t face any real opposition, but it isn’t ‘important’ enough to make it through the election year wrangling.

Full Markup of HR 4251 Scheduled – SMART Port Security Act

Yesterday the House Homeland Security Committee announced that it would be holding a full committee markup of HR 4251, the Securing Maritime Activities through Risk-based Targeting for (SMART) Port Security Act on Wednesday.

Once again, Rep. Miller (R,MI), the Chair of the Border and Maritime Security Subcommittee, will be offering substitute language for this bill that she introduced. I haven’t had a chance to review this yet in detail, but I do note some relatively gross changes in the table of contents of the bill:

• Removes §107 Port Security grant program authorization;

• Adds §115 Recognition of port security assessments conducted by other entities;

• Removes §206 Issuance of final rule relating to Transportation Workers Identification Credential reader requirements; and

• Adds §206 Expiration of certain transportation workers identification credentials;

During a brief glance there are a number of wording changes within various sections that will bear a closer look.

Subcommittee Passes HR 4251 with Amendments

Today the Subcommittee on Border and Maritime Security of the House Homeland Security Committee favorably reported HR 4251, as amended, by a voice vote. In addition to the amendment in the nature of a substitute that I described in a posting this last weekend, two other amendments were adopted, also by voice vote. All three voice votes a sure sign of bipartisan support for this legislation within this subcommittee.

The two new amendments, one by Rep. Rigell (R,VA) and one by Rep. McCaul (R,TX) dealt with ‘supply chain’ security issues related to inspections at foreign ports; nothing of particular interest to the chemical security community.

As I mentioned in the earlier post, it will be interesting to see if Chairman Miller’s (R, MI) enthusiasm for this bill will carry it to an early consideration by the Full Committee.

HR 4251 Introduced – Port Security

On Thursady, Rep Miller (R, MI), Chair of the Subcommittee on Border and Maritime Security of the House Homeland Security Committee, introduced HR 4251, the Securing Maritime Activities through Risk-based Targeting for Port Security (SMART Port Security) Act, a bill introduced to  authorize, enhance, and reform certain port security programs through increased efficiency and risk-based coordination within the Department of Homeland Security. Interestingly an ‘amendment in the form of a substitute’ has already been published on the Committee web site for this bill as it is already scheduled for Subcommittee markup next week; more on that in a later post.

Port Security Programs

Title I of this bill deals with security coordination efforts between various agencies within DHS under the maritime operations coordination plan. This has little to do specifically with chemical security so I’ll leave commenting on these provisions to those commentators with more knowledge of DHS CBP operations where this Title is principally focused.

Section 104 may end up having some sort of passing effect on the CFATS program. This section requires the Comptroller General to review and report on: “port security and maritime law enforcement operations within the Department to identify initiatives and programs with duplicative, overlapping, or redundant goals and activities, including the cost of such duplication” {§104(1)}.

Since the Department is trying to harmonize the chemical coverage of the MTSA and CFATS programs, it is possible that, depending on how advanced that harmonization efforts has become, the Comptroller’s General report may decide that the harmonization constitutes overlap that should be discouraged. I don’t think that that will be likely, not so much because of the lack of overlap issues, but rather there still won’t be a real harmonization effort for anyone to report upon.

TWIC Issues

While Title II of this bill is supposed to deal with maritime supply chain security (not the type of ‘supply chain security’ being addressed in the cyber security community, but rather the timely and safe flow of materials into this country without accompanying weapons of mass destruction), the last three sections of this title have nothing to do with maritime supply chain security. Instead, they address Congressional concerns about the Transportation Workers Identification Credential (TWIC) program.

Section 205 requires TWIC process reform, directing that the Secretary shall reform the TWIC application process “by not later than the end of 2012, when hundreds of thousands of current TWIC holders will begin to face the requirement to renew their TWICs” {§205a}. The specific reform being mandated in this section is that during the “enrollment, activation, issuance, and renewal” of a TWIC will not require “in total, not more than one in-person visit to a designated enrollment center” {§204(b)}.

It matters not that an independent investigation by the GAO last year recommended against the mailing of TWICs to applicants, citing security concerns. Ms. Miller and other members of Congress on both sides of the aisle are responding to complaints from both labor and management about the time consuming and complicated TWIC application, activation and issuance process. With the vast majority of TWIC holders facing going through the process again in the next two years as their current TWICs expire, these complaints are reaching a thunderous level during an election year. Similar provisions are now found in at least three separate pieces of legislation (HR 1143, HR 3116, and HR 3173).

Since there are regulations that will have to be changed to effect these reforms, it is unlikely that the Department would be able to meet the 270 day deadline provided in §205(b), even if it wanted to. It’s not a big problem any way, I suppose, TSA has not met a Congressional deadline yet that it couldn’t ignore.

Section 206 puts another deadline on DHS to complete a TWIC related regulation. It would require the final regulations for TWIC Readers to be completed by December 31, 2014. This time the affected agency is the Coast Guard and this is an acknowledgement that the August 20, 2010 requirement set by Congress in the Safe Port Act is dead and gone. In a silent acknowledgement that it has no practical means to enforce this deadline, Miller’s staff inserted a Stay of Expiration provision that TWICs could not expire until after such final regulations were issued. Of course this ignores the fact that according to a recent Coast Guard announcement, the TWIC chips shut down on their expiration dates.

To make matters more interesting the revised version of this bill to be considered next week in a subcommittee mark-up hearing changes the date from ‘December 31, 2014’ to ‘June 30, 2014’. Additionally, it adds a new paragraph (perhaps to address the dead chip issue) that requires the Secretary to reduce the cost to the applicant of re-issuing the cards (if it is determined that re-issuing is required to maintain the security value of the TWIC) “to the maximum extent possible while ensuring that the Transportation Worker Identification Credential program maintains adequate funding” {§206(c)(2)}. Since the application fee is supposed to cover the costs of administering the TWIC program this requirement only looks like Congress is doing something to reduce the costs to applicants.

The final section of this bill, §207, deals with TWICs and illegal aliens. It sets forth another new mandate for the DHS TWIC program that the Secretary shall put into place a process to ensure “to the maximum extent practicable, that an individual who is not lawfully present in the United States cannot obtain or continue to use a Transportation Worker Identification Credential” {§207(a)(1)}. Applicants would be required to prove identify (already required) and provide proof of “lawful presence in the United States” {§207(a)(2)(A)(ii)}. Additionally, ‘trusted agents’ (who actually process TWIC applications for TSA) must “receive training to identify fraudulent documents” {§207(a)(2)(B)}.

Finally §207(b) provides that TWICs will now also expire “in [certainly a typo for ‘on’] the date on which the individual to whom such a TWIC is issued is no longer lawfully present in the United States. There is no information about how TSA is expected to determine that a person is ‘no longer lawfully present’. Privacy rules would presumably prohibit the proactive sharing of TWIC status and/or citizenship status between government agencies, even within the Department.

Moving Forward

Since this bill was introduced last Thursday and will undergo a markup hearing this coming Tuesday, it appears to have the full endorsement of the Homeland Security Committee leadership. This frequently indicates that there will be a rapid movement of the bill to the floor of the full House. I don’t see anything here that would impede passage of either this original bill or its subsequent pre-hearing revision.