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.

TSA Requests Information for Surface Transportation Security Training

On Friday the Transportation Security Administration (TSA) published a notice in the Federal Register (78 FR 35945-35950) requesting comments and data concerning “employee security training programs and planned security training exercises currently provided by owner/operators of freight railroads, passenger railroads, public transportation systems (excluding ferries), and over-the-road buses”.

Training Security Program Requirements

TSA has yet to comply with the three security training related requirements of the “Implementing Recommendations of the 9/11 Commission Act of 2007” (9/11 Act; PL 110-53). These requirements are found in:

• Section 1408 – Public transportation;

• Section 1517 – Freight and passenger railroads; and

• Section 1534 – Over-the-road busses.

While there are slightly different specific requirements spelled out in each of these sections there are some commonalities in the training programs that TSA has been directed to regulate. Paragraph (a) of each section mandated a time frame for TSA to prepare an NPRM and Final Rule; each of those time frames passed over five years ago. Paragraph (b) requires TSA to consult with all of the affected parties in developing the training program requirements that would be incorporated into the final rule(s). Paragraph (c) provides sector specific training requirements that are to be included. Paragraph (d) requires covered entities to develop an organizational training program within 90 days and to submit it to TSA for approval. After TSA has completed their review of the submitted program (60-day time limit for the approval process) the organizations will have one year to complete their initial training of all affected personnel. Paragraph (3) requires that the training programs will be included in the f the National Training Program established under section 648 of the Post Katrina Emergency Management Reform Act {Public Law 109–295; 6 USC 748(a)}.

No Trucking Security Training Required

There is a glaring apparent omission in the requirements spelled out above. An entire sector of the surface transportation industry is missing from the requirements of the 9/11 Act, the freight trucking industry. The reason for this is that the Pipeline and Hazardous Material Administration (PHMSA) had already established security training requirements for that industry before the 9/11 Act was passed. PHMSA and the trucking industry were able to convince Congress that the existing program should exempt them from being regulated by TSA.

The transportation security training requirements for the trucking industry are outline in 49 CFR §172.704, the same section that mandates safety training for all hazmat employees. Two separate types of security training are required; security awareness training {§172.704(a)(4)} and in-depth security training {§172.704(a)(5)}. The security awareness training roughly correlates to the training required by the 9/11 Act for the other surface transportation sectors.

The general security awareness training is required to address:

• Awareness of security risks associated with hazardous materials transportation;

• Methods designed to enhance transportation security; and

• How to recognize and respond to possible security threats.

All hazmat employees in the trucking industry (and shippers of hazardous materials) are required to undergo the general security awareness training described above. All personnel who have duties specified in the hazmat security plans required by 49 CFR §172.800 must undergo in-depth security training addressing those duties. That training will include:

• A review of the security plan and its implementation;

• Company security objectives;

• Organizational security structure;

• Specific security procedures;

• Specific security duties and responsibilities for each employee; and

• Specific actions to be taken by each employee in the event of a security breach.

The security training requirements specified by the 9/11 Act do not require any in-depth training similar to that required for the trucking industry by PHMSA. While there are requirements for the other transportation sectors to develop and receive approval of their security plans, the security training necessary to support those plans was not included in the 9/11 Act requirements.

TSA Soliciting Information

Friday’s notice is soliciting input from the organizations identified in the appropriate sections of the 9/11 Act described above as part of the mandated consultation of that act. TSA is requesting information and cost data in the following areas:

• General information;

• Requests to complete training matrix; and

• Responses to specific questions.

Comments and information/data responses may be submitted via the Federal eRulemaking Portal (www.Regulations.gov; Docket # TSA-2013-0005). There is a short 30-day time period for the responses to be filed; filings must be made by July 15^th, 2013. Given the lengthy delays that have occurred in the development of the mandated rules, it really makes no sense for TSA to require such a short response period. I am sure that there will be calls from Congress and the regulated communities to extend this comment period.