House Passes HR 5729 – TWIC Reader Rule Delay

Yesterday the House passed HR 5729, the Transportation Worker Identification Credential Accountability Act of 2018, by a voice vote. There was a short nine-minute debate on the bill with two representatives speaking in favor of the bill.

Both Rep. Katko (R,NY) and Rep. Norton (D,DC) mentioned in their floor speeches concerns about the “expanded scope of the final [TWIC Reader] rule where facility areas subject to the TWIC reader requirement went beyond what was included in the proposed rule and regulatory analysis accompanying that rule” (pg H5996). Norton also mentioned “concerns and questions about the reliability of background check information, the efficacy of fraud detection capabilities, and the relatively high cost of the credential have been persistent shortfalls that the Department of Homeland Security has never gotten right.”

Unfortunately for the two representatives neither issue is addressed by this bill. The bill simply extends the effective date for the TWIC Reader Rule until the “end of the 60-day period beginning on the date of the submission under paragraph (5) of section 1(b) of Public Law 114–278 [link added] (130 Stat. 1411 to 1412) of the results of the assessment required by that section.”

It will be interesting to see if the Senate takes up this bill before August 18^th, 2018. If it is signed by the President sometime after the 18^th it will have the interesting effect of prohibiting the implementation of something that will have already been implemented. That will cause all sorts of potentially interesting legal complications, at least until the report is filed.

This bill would have no effect on the current Coast Guard rulemaking underway to delay for three years the implementation of the TWIC Reader Rule for a limited sub-set of the currently affected facilities.

Committee Hearings – Week of 07-08-18

With both the House and Senate in session this week we start to see movement on other things than just spending bills. We have two cybersecurity hearings of potential interest and HR 6237, the FY 2018/19 intel authorization bill.

Spending Bills

• Wednesday – House – Committee - Labor, Health and Human Services, Education, and Related Agencies

• Wednesday – House – Rules Committee – HR 6147 (LHHE)  Amendment Deadline

Cybersecurity

On Wednesday the House Homeland Security Committee will be holding a hearing on “DHS’s Progress In Securing Election Systems And Other Critical Infrastructure”. The witness list includes:

• Christopher Krebs, DHS; and

• Nellie Gorbea, State of Rhode Island

While securing the election process is certainly important it is generally outside of the scope of this blog. I am mentioning this hearing though because of the following statement on the hearing web site:

“The hearing will also provide Members an opportunity to hear about DHS’s role working across all 16 critical infrastructure sectors because a cyber threat to elections may pose a similar threat to other critical infrastructure sectors.”

It will be interesting to hear what questions the Committee has for Krebs.

On Wednesday the Senate Commerce, Science, and Transportation will hold a hearing on “Complex Cybersecurity Vulnerabilities: Lessons Learned from Spectre and Meltdown”. The witness list includes:

• Donna Dodson, NIST;

• José-Marie Griffiths, Dakota State University;

• Joyce Kim, ARM;

• Art Manion, Carnegie Mellon University; and

• Sri Sridharan, University of South Florida

This is potentially too complex a topic for a congressional hearing. I hope the witnesses take this into account and concentrate on policy type issues instead of the technical details. It will be interesting to see what questions are posed by the Senators; this will reflect on the quality of the technical support the committee has.

Intelligence Authorization Act

On Wednesday the House Rules Committee will hold a hearing to set the rule for the consideration of HR 6237, the Matthew Young Pollard Intelligence Authorization Act for Fiscal Years 2018 and 2019. Thirty-seven amendments have been submitted to the Committee for consideration for inclusion in the debate on HR 6237. None of those amendments should be of specific interest to readers of this blog.

Last year’s version of the bill, HR 3180, finally passed the House under a closed rule (limited debate, no amendments), but was never considered in the Senate. It will be interesting to see how the Committee deals with this bill this year. The bill is scheduled to come to the floor on Thursday.

On the Floor

In addition to HR 3180, the House will also take up HR 5729, the Transportation Worker Identification Credential Accountability Act of 2018. That bill will be considered tomorrow under the suspension of the rules process; limited debate, no amendments, and a super-majority to pass. The bill will almost certainly pass with wide bipartisan support.

As I noted in my post on S 3094, the companion bill to HR 5729, from reading the Committee Report on the bill it is clear that the impetus for proposing this bill was to ‘punish’ DHS and the Coast Guard for ignoring the dictates of Congress. That will not, however, be the basis for the wide spread support for the bill. It provides a wide variety of congress critters a chance to vote against the TWIC program (for an equally wide variety of reasons) without taking any real action to affect the program. They get a show vote for certain constituencies without having to negatively effect a security program. You cannot get a better bill for politicians.

S 3094 Introduced – TWIC Reader Rule Delay

Last month Sen. Sullivan (R,AK) introduced S 3094, the Transportation Worker Identification Credential Accountability Act of 2018. This bill is identical to the language of HR 5739 as introduced. It does not include the periodic reporting requirement added to the House bill by the House Homeland Security Committee two weeks prior to the introduction of this bill.

Moving Forward

Sullivan is the Chair of the Subcommittee on Oceans, Atmosphere, Fisheries, and Coast Guard of the Senate Commerce, Science, and Transportation Committee, the Committee to which this bill was assigned for consideration. This means that he should certainly have enough influence to see the bill considered in Committee.

This bill would almost certainly see the same bipartisan support in the Senate that HR 5739 saw in committee in the House. The major question here is whether or not the bill will make it to the floor in either body in time to affect the implementation date for the rule in question; August 18^th, 2018. If the bill were to pass after that date, it would still have the intended effect, but many of the affected facilities will have already made their expenditures to implement the rule.

I would suspect that there is about a 50:50 chance that this bill will not make it to the President’s desk during this session. This is not due to any specific opposition to the bill, but rather a function of the crowded calendar as the mid-term elections and the end of the session approach.

The House version of the bill may have a better chance of proceeding than does this version as Sen. McCaul (R,TX) is a cosponsor of HR 5729 and he might be expected to provide the necessary influence to move the bill to the floor for a vote. If either bill is considered in a floor vote, it will be under the respective expedited consideration provisions of that house.

Commentary

Neither version of the bill would necessarily have any impact on the current Coast Guard rulemaking delaying implementation of the TWIC Reader Rule on a limited portion of the affected maritime community.

Interestingly the House report from the Homeland Security Committee on HR 5729 was released this week. Nothing really new there, but the final comment in the ‘Need for the Legislation’ section of the report (pg 3) sheds some light on the reason for the bipartisan support for this legislation:

“Despite a requirement to commission a study within 60 of enactment of the law, DHS did not commission the study until 14 months after enactment and has not provided sufficient information to Congress to explain the delay.”

It would seem that Congress is more upset about being ignored by DHS than it is really concerned about delaying the implementation of the rule. This is particularly reflected in the language of the bill that would allow the Coast Guard to implement the bill within 60-days of the required report being submitted to Congress. That 60-days is not long enough to ensure that the report is read, much less allow the Congress to take any action on the TWIC program.

Bills Introduced – 06-20-18

Yesterday with both the House and Senate in session there were 36 bills introduced. Of these, two may be of specific interest to readers of this blog:

HR 6157 Making appropriations for the Department of Defense for the fiscal year ending September 30, 2019, and for other purposes. Rep. Granger, Kay [R-TX-12]

S 3094 A bill to restrict the department in which the Coast Guard is operating from implementing any rule requiring the use of biometric readers for biometric transportation security cards until after submission to Congress of the results of an assessment of the effectiveness of the transportation security card program. Sen. Sullivan, Dan [R-AK]

I suspect that S 3094 is a companion bill to HR 5729. The OMB has approved the Coast Guard’s rule (but the CG has not yet published the rule) for a limited delay of the TWIC Reader Rule, but it does not appear that that delay is related to what these two bills are attempting to accomplish.