House Passes HR 5089 – Surface Transportation Security

On Thursday the House passed HR 5089, the Strengthening Local Transportation Security Capabilities Act of 2018, by a strongly bipartisan vote of 397 to 1 (the single Nay was a Republican). The bill was debated on Monday, but the recorded vote was demanded and then delayed until Thursday.

As with HR 5074, this bill was considered on the floor ‘as amended’. Neither bill was amended at the markup hearing conducted earlier this month, but the reported language for HR 5089 did include a minor revision of the language in §3(a). The revised language added: “, as appropriate, from” before the words “the Office of Intelligence and Analysis”. Minor, relatively inconsequential changes like this are not uncommon in reported language coming out of committee.

The bill now waits for the Senate leadership to decide if the bill will be considered in that body. Based upon the vote in the House, I do not suspect that there will be any substantial opposition in the Senate. I would expect to see the bill considered under the ‘without objection’ process; no debate and no vote.

Committee Hearings – Week of 03-18-18

There are a significant number of hearings scheduled this week with both the House and Senate in session. Budget hearings predominate, but none that are of specific interest to readers of this blog. In fact, I do not see any hearings of specific interest here this week. There are, however, two bills that will make it to the floor of the House this week that I am watching and, of course, there is a spending bill deadline approaching at the end of the week.

On the Floor of the House

There are a number of bills that are scheduled to come to the floor on Monday under the suspension of the rules provisions of the House. These provisions limit debate, prohibit floor amendments, and require a super-majority to pass. Bills of potential interest include:

• HR 5074, the DHS Cyber Incident Response Teams Act of 2018;

• HR 5089, Strengthening Local Transportation Security Capabilities Act of 2018;

Interestingly, both of these bills are listed in the Majority Leader’s schedule as being considered “as amended”. The Homeland Security Committee mark-up hearing for both of these bill resulted in an order for each bill that the bill be “reported to the House with a favorable recommendation, without amendment”. No report has been published for either bill (will probably be submitted today and published later this week), so I cannot tell if Chairman McCaul (R,TX) subsequently ordered some revisions be made to the bill. It would not be too unusual for minor technical revisions to be made after mark-up, but substantial revisions are seldom made.

FY 2018 Spending Bill

The current continuing resolution (CR, HR 1892) will expire on Friday night. The hope has been that the House and Senate will consider and pass an omnibus spending bill this week that would include all of the non-DOD operations of the government (DOD spending was included in the last CR). News reports (see here for example) would seem to indicate that there is still some hard negotiating to be done on this bill.

Is there a chance that there will be another CR? It increasingly seems that there is always a chance. One remote possibility is that a CR for the rest of the fiscal year could be passed, keeping the current funding levels. While the inclusion of DOD spending in HR 1892 would seem to make that possibility easier, it would violate the agreement to increase spending levels in non-DOD areas that allowed HR 1892 to eventually be passed.

House Homeland Security Committee Marks-up Legislation – 03-07-18

Today the House Homeland Security Committee held a markup hearing to look at 10 homeland security related bills (one of the scheduled bills HR 4627 was not considered). All of the bills passed by unanimous consent. Four of the bills were amended before passing.

Bills of potential specific interest to readers of this blog included:

• HR 5074, the DHS Cyber Incident Response Teams Act, was adopted without amendment;

• HR 5081, the Surface Transportation Security and Technology Accountability Act of 2018, was adopted without amendment; and

• HR 5089, the Strengthening Local Transportation Security Capabilities Act of 2018, was adopted without amendment.

I suspect that all ten bills will make it to the House floor under the suspension of rules process that allows for limited debate and no floor amendments. Each of these bills should pass with broad bipartisan support; most of them without a roll-call vote.

HR 5089 Introduced – Local Transportation Security

Last month Rep. Barragan introduced HR 5089, the Strengthening Local Transportation Security Capabilities Act of 2018. The bill would increase DHS support to fusion centers supporting high-risk sur1face transportation assets.

Definitions

Section 2 of the bill provides a number of definitions of terms that are used in the bill. Two of the key terms are:

Surface transportation asset {§2(2)} - includes facilities, equipment, or systems used to provide transportation services by:

• Public transportation agency;

• Railroad carrier;

• Over-the-road bus company; or

• Bus terminal.

Transportation facility {§2(3)} - a bus terminal, intercity or commuter passenger rail station, airport, or multi-modal transportation center.

Fusion Center Support

Section 3 of the bill addresses assistance that DHS would be required to provide to fusion centers. First, DHS would be required to assign ‘officers and intelligence analysts’ from TSA and Office of Intelligence and Analysis of the Department of Homeland Security to locations with participating State, local, and regional fusion centers. Those personnel would be expected to develop “transportation security intelligence products, with an emphasis on terrorist and other threats to surface transportation assets” {§3(b)(1)}.

DHS would also be required to process security clearance requests by “appropriate owners and operators of surface transportation assets, and any other person that the Secretary determines appropriate to foster greater sharing of classified information relating to terrorist and other threats to surface transportation assets” {§3(c)}.

Other Surface Transportation Security Support

Section 4 would require TSA to develop a framework for the establishment of integrated and unified operations center for transportation facilities. Those operations centers would be responsible for overseeing daily operations with an emphasis on providing coordination for responses to terrorism, and other serious incidents.

Section 5 of the bill would allow DHS to establish at Federal Law Enforcement Training Centers a training program that would “enhance the protection, preparedness, and response capabilities of law enforcement agencies with respect to terrorism and other serious incidents at a surface transportation asset” {§5(a)}.

Moving Forward

Barragan is a member of the House Homeland Security Committee to which this bill was assigned for consideration. Both of her cosponsors are also influential Democrats on that Committee. The bill is scheduled to be considered in Committee on Wednesday.

I see nothing in the bill that would draw significant opposition; either in Committee or on the floor of the House. I suspect that it would receive substantial bipartisan support in both venues.

Commentary

Generally, this is a motherhood and apple pie bill that makes it look like DHS and Congress are doing something to address surface transportation security. There are two main problems with this bill; the reliance on classified intelligence reports and the failure to include truck freight operations in surface transportation.

While it is certainly a good idea for fusion centers to share classified intelligence products with the potentially affected sector, the reality is that most transportation service providers referenced in this bill will not be able to afford the establishment and maintenance of secure transmission and storage facilities to receive and use those classified intelligence products. The largest entities (Class I railroads and the top two over-the-road bus companies for example) may be able to afford these facilities, but most organizations cannot either justify or afford the expenditure of funds necessary.

The bill should have required DHS to establish a formal, expedited process to extract actionable information from these classified reports that can be shared with organizations as Sensitive Security Information (SSI) rather than as classified information. The regulatory requirements for the receiving and storage of SSI information are still expensive, but are significantly more affordable than the requirements for classified information.

The second issue (failure to include truck freight operations) is more understandable. For the most part these freight operations are considered to be at substantially lower threat of terrorist attack. There are, however, one subset of the truck industry that should be considered as being at significant threat of terrorist attack, those trucking companies that handle hazardous materials. I would have added the following to the definition of ‘surface transportation asset’ as a covered provider of transportation services:

“(D) Freight truck operations that handle placarded (as defined in 49 CFR 172.500) loads of hazardous materials; and”

I understand that the trucking industry has been vociferous in their opposition to further security regulations affecting their operations. This bill, however, has no regulatory impact, so there should be little or no opposition to the inclusion of truck freight operations in the requirements outlined for DHS in the bill.

Committee Hearings – Week of 03-04-18

This week, with both the House and Senate in Washington for a congressional full-week, budget hearings will be the big news. There will be, however, some other hearings of interest; four of particular interest to readers of this blog; two markup hearings, a cybersecurity workforce hearing, and a Coast Guard programs hearing.

Markup Hearings

On Wednesday the Senate Homeland Security and Governmental Affairs will ‘continue’ their hearing of last week so that they can start the markup of HR 2825, a DHS authorization bill, that I mentioned last week. The bill was not considered last week because some new amendments were not ready for submission. There is also a possibility that a Senate version of the bill will be introduced this week and then that would be marked up instead of HR 2825.

The House Homeland Security Committee will meet on Wednesday to markup 11 bills. Bills of particular potential interest to readers of this blog include:

• HR 5094, the Enhancing Suspicious Activity Reporting Initiative Act

• HR 5081, the Surface Transportation Security and Technology Accountability Act of 2018;

• HR 5099, the Enhancing DHS’ Fusion Center Technical Assistance Program;

• HR 5131, the Surface Transportation Security Improvement Act of 2018;

• HR 5089, the Strengthening Local Transportation Security Capabilities Act of 2018; and

• HR 5074, the DHS Cyber Incident Response Teams Act

I have not had a chance to review the first five on the list yet, but I will try to get that done before Wednesday.

Cybersecurity Workforce

On Wednesday two subcommittees of the House Homeland Security Committee will hold a joint hearing to look at “Examining DHS’ Efforts to Strengthen its Cybersecurity Workforce”. There is no witness list published yet, but I suspect that we will have either a GAO of DHS IG report presented at this hearing. In any case, the problems that DHS (and the rest of the government) is having identifying their cybersecurity needs and then finding the people to fill the requisite positions is just a reflection of the generally increasing need for cybersecurity specialists in the economy as a whole.

 Coast Guard Programs

On Wednesday the Coast Guard and Maritime Transportation Subcommittee of the House Transportation and Infrastructure Committee will hold a hearing to look at “Implementation of Coast Guard Programs”. No witness list is currently available. There is a remote chance that the Maritime Transportation Security Act (MTSA) program implementation will be addressed. If it is it will almost certainly be touching on the TWIC Reader Rule; we are still waiting on the long overdue publication of a final rule.

Bills Introduced – 02-26-18

Yesterday, with both the House and Senate back in town after the long week off for President’s day, there were 21 bills introduced. Of those, two may be of specific interest to readers of this blog:

HR 5089 To improve threat information sharing, integrated operations, and law enforcement training for transportation security, and for other purposes. Rep. Barragan, Nanette Diaz [D-CA-44]

HR 5094 To direct the Secretary of Homeland Security to improve suspicious activity reporting to prevent acts of terrorism, and for other purposes. Rep. King, Peter T. [R-NY-2]

I will be watching HR 5089 for its potential effects on chemical transportation security.

While I suspect that HR 5094 will be very generic in scope, I will be watching it for potential impacts on chemical facility security and (a real remote possibility) cybersecurity.