Congressional Hearings – Week of 5-29-12

The House took off the week before the Memorial Day Weekend and the Senate is taking the week after off. So we only have to worry about hearings in the House this week. Those will include a hearing on the TSA Surface Security program and a rules hearing on a number of spending bills. Additionally the House is scheduled to consider a WMD bill on the floor.

TSA Hearing

The Transportation Security Subcommittee of the House Homeland Security Committee will be holding a hearing on “TSA’s Surface Inspection Program: Strengthening Security or Squandering Scant Resources?” on Thursday. The only surface security regulations really in place deal with rail security for hazardous chemicals. Perhaps Chairman Rogers (R,AL) will ask about the status of the long overdue regulations for security of truck transportation of the same chemicals.

No witness list is currently available. We can expect that there will be at least one witness from TSA.

Spending Bills

The House Rules Committee will be holding a hearing on Wednesday to formulate the rule for a number of appropriations bills; three of which may address issues of interest to the chemical security and cybersecurity communities. The one bill of certain interest will be H.R. 5855, Department of Homeland Security Appropriations Act, 2013; I’ve addressed this bill in some detail at the committee print stage. Three other bills will also be addressed at that hearing; the two of potential interest will be:

• H.R. 5743 — Intelligence Authorization Act for Fiscal Year 2013

• H.R. 5325—Energy and Water Development and Related Agencies Appropriations Act, 2013

I’ll be looking at each of these bills in more detail as the week progresses.

Floor of the House

According to the House Majority Leader’s web site the House is currently scheduled to consider HR 2764, the WMD Intelligence and Information Sharing Act of 2011 under suspension of the rules this week; this means it will require a 3/5 majority to pass. Scheduling it in this manner means that the leadership believes that this bill will pass without significant opposition.

Three of the four bills being considered by the House Rules Committee this week may make it to the floor on Thursday. The one not currently on the schedule is the DHS appropriations bill.

More DHS Budget Request Information

Yesterday, in the lead up to Secretary Napolitano’s appearance before two separate House budget hearings today, the Department of Homeland Security published a 3134 page budget justification document. A quick review (boy I’m glad I took a speed reading course in High School) provides some budget numbers for two important (for readers of this blog anyway) programs and a lot of interesting details about the work of DHS that are not normally readily available to the public.

NOTE: All page numbers are Adobe Reader® page numbers.

Budget Numbers

This document provides program level budget numbers not normally seen in this stage of the budget process. Of particular interest to members of the chemical security and cybersecurity communities it provides numbers for the Infrastructure Security Compliance Program (ISCD) and the Control Systems Security Program (ICS-CERT).

ISCD (pages 2096 and 2103) has no changes to the manpower positions included in the budget request from the FY 2012 budget authorization, but it does have a decrease in funding from $93.348 Million to $74.544 Million. No explanation is given in how the program savings will be achieved.

The ICS-CERT funding request (page 2118), on the other hand, shows an increase in the full-time equivalent manpower positions from the FY 2012 authorized levels from 9 to 12. There is also a very slight funding increase from $28.297 Million to $28.929 Million for the program. Presumably this covers the increased manpower costs.

Misleading Metrics

The document leads off with a number of measures of the effectiveness of the various programs covered in the DHS budget. Of special interest is the one metric mentioned for the CFATS program. On page 13 it notes that ISCD had a FY 2011 target of having 10% of the CFATS facilities “in compliance with the Chemical Facility Anti-terrorism Standards” but only 9.1% achieved that standard. It also noted that they are shooting for 20% compliance in FY2012 and 35% compliance in FY 2013.

No details are given about what constitutes ‘in compliance’ but it certainly cannot be having an authorized site security plan since only four facilities (about 0.1% of the CFATS facilities) have achieved even that standard and all of those were authorized since October 1^st. I certainly hope that Secretary Napolitano is questioned about this detail today. I also wonder how many of the other metrics are this misleading.

BTW: The reason that ISCD missed the FY 2011 target was missed was “attributable to scheduled authorization inspections in September 2011 being postponed due to Hurricane Irene”. I don’t recall that being one of the problems mentioned in the ISCD report about program deficiencies.

TSA Surface Security Programs

We don’t typically hear much about the TSA surface security programs as the agencies main focus (in terms of both manpower and money spent) is passenger air travel security. This document does list an number of interesting projects that TSA has worked on over the last year. Not much is provided in the way of detail so I will only list the projects here with the page reference.

• TSA Surface Transportation Rule Making, page 1445;

• Toxic Inhalation Hazard (TIH) Transportation Risk Reduction, page 1450;

• TIH Dispersion Modeling, page 1451; and

• TIH Tank Car Vulnerability, page 1451

The actual test results for the last three items will almost certainly be classified, but they should make their way into the regulatory process over the next decade or so; based upon TSA’s past rulemaking record.

TSA Surface Enforcement Activity

Yesterday the Transportation Security Administration published a notice in the Federal Register regarding the summary of their 2010 enforcement activity for surface transportation requirements. In a twisted sense of bureaucratic efficiency, the Federal Register notice does not include the actual summary, it just notes that it is available at http://www.regulations.gov/ under docket number TSA-2009-0024.

Downloading the two page summary document one can see that the TSA Surface Inspectors noted violations in 16 different enforcement actions during 2010. Those violations fall into five categories:

• Railcar chain of custody {49 CFR 1580.107}, twelve instances

• Failure to allow TSA inspection {49 CFR 1580.5}, two instances

• Railcar security {49 CFR 1580.107(f)}, one instance

• Reporting security concern {49 CFR 1580.105}, one instance

• Use of another’s TWIC {49 CFR 1570.7}, one instance

The penalties assessed for these violations range from ‘counseling’, through a ‘warning notice’, to a ‘letter of correction’. No monetary penalties were assessed even though TSA has been given authority {49 U.S.C. 114(v)} “to impose civil penalties of up to $10,000 per violation of any surface transportation requirement under 49 U.S.C. or any requirement related to transportation worker identification credentials (TWIC) under 46 U.S.C. chapter 701” (76 FR 9358).

Security requirements obviously preclude TSA from providing more details about the specific violations. It would be more instructive, however, if TSA were to describe, for instance, what constituted a ‘railcar chain of custody’ violation in each instance. The provisions of §1580.107 cover a wide range of requirements for a variety of rail car transfers including shipper to rail road, rail road to rail road, and rail road to receiver. It would be interesting to see which type of transfer had the most problems

One would like to assume that enforcement activities were consistent enough that we could assume that there was some difference in the severity of the violations that drew these different sanction levels. We would be able to see if this were true if we had a better idea of the actual violations were.

Since 2010 was the first full year of enforcement activities under §1580, I understand why TSA would not have assessed a monetary penalty for technical violations of this relatively new regulation. Of course, that is only true if outreach efforts were being made to educate the industry in how TSA inspectors are looking at the regulations. That really only happens if more information is included in communications like this.

None of the above comments about enforcement activities applies to the TWIC violation noted in the summary. The whole point of the TWIC regulations are that the card provides an assurance that people be given access to port facilities have been appropriately vetted. If someone is using someone else’s card that assurance disappears. This program has been in place for a long enough period that there is no justification for not penalizing violations. If TSA is not willing to assess some monetary penalty (the full $10,000 is probably inappropriate) for violations of this basic requirement, there is no sense in continuing to maintain this expensive system.