HR 754 Now Includes Transportation Security Planning

On Friday, the House passed HR 754, the Intelligence Authorization Act for Fiscal Year 2011 by a bipartisan vote of 392-15. An amendment offered on the floor regarding transportation security issues was adopted.

Transportation Security Plans

Amendment 8 offered by Rep. Carney (D, DE) added Sec 501 to the legislation that expressed the non-binding ‘sense of Congress’ that railway transportation (including transit) should:

• Be “prioritized in the development of transportation security plans by the intelligence community”; and

• Be “included in transportation security budgets of the intelligence community”.

Not much to this. A ‘sense of Congress’ listing has even less authority than a House Resolution. It does imply that there is a ‘transportation security plan’ for the intelligence community, but I think that that is probably a misnomer. It is more likely a plan for looking at transportations security indicators; now what most people think about when they hear the words ‘transportation security plan’.

In any case, I’m sure that the Intelligence Community will pay diligent attention to this sense of Congress in developing their plan for looking at transportation security issues. You bet; especially since no money was attached to this ‘requirement’.

HR 1690 Marked Up in Subcommittee

Last week the Transportation Security Subcommittee of the House Homeland Security Committee held a mark up of HR 1690. The Subcommittee considered a single amendment in the form of a substitute submitted by Chairman Rogers (R, AL) and by a voice vote reported the amended bill to the full committee.

The substitute language adopted by the Subcommittee makes significant changes to the requirements of the proposed bill. It contains expanded requirements for the establishment of a Task Force to review the various lists of disqualifying crimes for an expanded transportation security credential. It revises the proposed Title XXI language being added to the Homeland Security Act to require the DHS Secretary to complete a rule making process within one year to require, among other things, that motor vehicle operators carrying security sensitive materials (to be defined in the regulations) must possess a transportation security card. The bill would also remove the requirement (at 49 USC 5103a) for a Federal background check for State Hazmat Endorsements for Commercial Driver’s Licenses.

Security Sensitive Materials

The wording of this revised bill could cause some confusion for manufacturers, shippers and transporters of hazardous materials. The term ‘Security Sensitive Material’ would be defined by the DHS Secretary “for the purposes of this title” {§2101(a)(1)}. This could allow the term to cover different materials under the rail shipments and road shipments. This could cause no end of confusion for shippers in determining which materials are covered under the differing shipping modes.

Trucking companies, freight forwarders and truck drivers would have another category of materials that would carry it’s own special brand of restrictions. Since the bill would give background check credit {§2104(a)}to current holders of HAZMAT Endorsements, one would expect most of those currently holding such endorsements to quickly apply for the new transportation credential, assuming that the DHS rule would allow a greatly reduced fee for such grandfathered individuals in it’s interpretation of the fee reduction requirement of §2104 in it’s interpretation of the fee reduction requirement of §2104(b).

Moving forward transporters will have to keep track of drivers that have both the hazmat endorsement for their CDL and the new transportation workers credential. While there will be significant overlap, it will be easier to get the endorsement than credential because of the lack of a need for the federal background check.

Transportation Credential and CFATS

This revised bill would not specifically require CFATS facilities to use the revised transportation security credential (essentially an expanded TWIC) for their personnel surety program, but it certainly removes some of the restrictions currently in place that would impede facilities from doing so.

First the language added to the Homeland Security Act would define the terms ‘transports’ or ‘transportation’ to mean “the movement of property and loading, unloading [emphasis added], or storage incidental to such movement” {§2106(a)(6)}. This would expand the meaning of ‘transportation worker’ to those that load or unload materials, to include hazardous chemicals.

Later, in discussing the establishment of an ‘outreach program’ about the transportation security credential it identifies those that should be included in the outreach program. It specifically includes “operators of facilities that require individuals to be issued a transportation security card” {§70105(s)(2) to be added to 46 USC}. This, at the very least, implies that CFATS facilities could use the revised TWIC for their personnel surety program.

Other Concerns

The areas of concern for other organizations impacted by this bill that I discussed in my earlier blog on this bill have been modified as well. Truck drivers and trucking companies concerns about the consolidation of security checks are addressed, but less comprehensively. Labor unions will have concerns about the removal of specific language concerning redress procedures for negative information reported in the background screening process. Airport operators lost extensive language protecting their right to control the issuance of security cards at their facilities, but will still find some language supporting that right.

The changes in these areas may impact some of the support for this bill that would have been expected for the original language. It remains to be seen how this will impact the possibility of this bill moving through the legislative process. The fact that the bill was approved by a voice vote should be encouraging to its supporters.

Chairman Rogers has found a neat way around the need for increasing the surface security enforcement arm of TSA to enforce this new rule by specifically allowing the DHS Secretary to shift that responsibility to the DOT Secretary via a memorandum of understanding between the two agencies. Presumably this MOU would in-turn allow State authorities, who do the bulk of enforcement truck stops, to check drivers hauling sensitive security material for their appropriate credentials. This will require some new training, but shouldn’t otherwise increase State enforcement costs.

2009 “Chemical Weapon Attack” in Tucson

Yesterday the FBI arrested a ‘Tucson businessman’ for a 2009 chemical weapon attack on a couple in Tucson, AZ.

The Attack

According to the FBI press release “Fries placed chemical devices in the front and back yard of a couple living on the northwest side of Tucson. When ignited, the devices produced a football field-sized cloud of chlorine gas that hovered over the neighborhood and resulted in the evacuation of numerous families in the area.”

According to a news report from a couple of days after the attack, “Investigators said Sunday's incident in Tucson included derogatory graffiti written in Spanish [NOTE: it was actually German]; dead animals; an incendiary device; and chlorine tablets covered in an unknown liquid that created a large toxic-gas cloud.”

Interestingly a copy of the police report from the initial officer on the scene mentions nothing about a ‘toxic cloud’ or ‘chemical weapons’ or even the odor of chlorine, a very distinctive and irritating odor even at low, sub-lethal concentrations.

The Device

It looks like the perpetrator used a very simple ‘chemical weapon’; a pile of ‘chlorine tablet’ (actually sodium hypochlorite) available from Wal-Mart or any pool supply store. The chemical reaction was not started by an ‘ignition source’ (someone PLEASE help the FBI with their technical descriptions) but by simply pouring an ‘unidentified’ liquid {which could have been anything from a household ammonia-cleaner (probably not; that reacts too fast and you’re in the cloud before you’re done pouring) to Coca-Cola to simple tap water with a little bit of vinegar}on the tablets.

It would have had to have been a very large pile of commercial hypochlorite tablets to produce a ‘toxic’ cloud the size of a football field. Since there are no reports of injuries or hospitalizations I would assume that at most it was an irritating cloud not a toxic cloud. It wasn’t even that irritating when the initial officer on the scene did not even notice it nor did any of the witness statements found in press accounts mention it.

WMD Overreaction

In a confined space where the concentration could reach lethal levels or even levels that could just cause serious medical consequences (damaged lungs, eyes, etc) I suppose that one might consider this ‘hypochlorite’ attack to be a weapon of mass destruction or a chemical weapon. Jason Siggers of the late Armchair Generalist blog would be proud that the FBI applied a chemical weapons charge against an inept white man; he had reported on numerous occasions that WMD type charges only appeared to be filed by the FBI against non-whites or Muslims.

Lets face it; this was not a ‘chemical weapon attack’ any more than the dead animals or feces smeared across the scene were a bio-weapon attack (though they were more likely to do harm than the ‘chlorine gas’ at these low concentration levels). Charge him with a hate crime? Absolutely. Charge him with criminal mischief? Yes, multiple charges. Charge him with criminal stupidity? Surely there must be such a charge on the books somewhere. But PLEASE, charging him with making and using a chemical weapon (two separate offenses)? That is nothing but political grandstanding on the part of the FBI and the Federal Prosecutor.

Potential Threat

The basic chemical reaction used in this case could certainly be used to manufacture an effective chemical weapon. It would take much more sophistication than a pile of pool chlorine tablets on the front lawn to be effective however. There are, in fact, a large number of relatively simple chemical reactions that can produce toxic gasses, reactions that use similarly unregulated, commercially available chemicals.

Draft FY 2012 DHS Budget Bill Released

NOTE: This would have been posted at about 8:00 am EDT yesterday but for the problems that Google was having with its Blogspot.com system.

Yesterday the Homeland Security Subcommittee of the House Appropriations Committee published their committee draft of the Department of Homeland Security Appropriations Act, 2012. The Subcommittee will be [did hold, no news yet on what they did] holding a mark-up hearing today [Friday, 5-13-11] at 11:00 am EDT.

Obviously of immediate concern to the chemical security community is the fact that there is a CFATS extension included in the bill. The §536 of the draft would extend the CFATS authorization until October 4th, 2012. The Administration had requested a two year extension in their budget request.

A lot of the detailed numbers apparently still need to be worked out (or published, I’m not sure which), but the large program numbers are available. The Department would receive $42.2 Billion down from the President’s request of $45.0 Billion and the $43.4 Billion in the FY 2011 budget finally passed by Congress. NPPD would get $1.23 Billion down from the President’s requested $1.26 Billion but up from FY 2011’s $1.22 Billion. To date there are no details about individual programs like CERT or CFATS. The TSA spending would be $7.8 Billion, similarly down from the President’s request ($8.1 Billion) and up from FY 2011 ($7.7 Billion). The Coast Guard gets similar treatment with $11.75 Billion (Requested - $11.84 Billion; FY 2011 - $11.31 Billion).

There is still lots of work that has to be done on this bill before it comes to a floor vote, but it is significantly further along than the FY 2011 budget bill ever got. Last year we were hoping to see a Subcommittee draft going into the summer recess before the process was shut down by the retiring Appropriations Committee Chairman.

ICS-CERT Publishes New 7T Advisory

NOTE: This would have been posted at about 7:00 am EDT yesterday but for the problems that Google had with their Blogspot.com system yesterday.

The DHS Industrial Control System Cyber Emergency Response Team (ICS-CERT) published a new advisory for the 7-Technologies IGSS SCADA HMI. It seems as if the identification of 7T in the vulnerability disclosure made earlier this year by Luigi targeted security researchers on this program. A similar problem appears to face other companies identified by the Italian researcher. Is anyone looking at other SCADA systems?

The newly identified vulnerability in IGSSdataServer service could allow a remote denial-of-service attack by a moderately skilled attacker using a publicly available exploit. 7T has an update available.

Congressional Hearing Updates 5-11-11

Mid-week brought some changes to the Congressional Hearing schedule that may be of interest to the chemical security community. Two hearings were postponed and a new one was added.

Postponed Hearings

The House Energy and Commerce Committee got bogged down in their mark-up of HR 5 so they did not get a chance to work on HR 908, the CFATS extension bill proposed by members of that Committee. That mark-up was postponed until a date to be announced next week.

The Senate Commerce, Science and Transportation Committee did not provide a reason when they postponed their hearing today on cyber security. No future date was given. Last minute postponements are getting to be a habit with this Committee.

New Mark-up Scheduled

The House Homeland Security Committee announced yesterday that its Transportation Security Subcommittee will hold a markup hearing today on HR 1690, the MODERN Security Credentials Act. This bill is apparently being fast-tracked by the Homeland Security Committee as it was just introduced last week.

EPA to Transfer Data to DHS

The Environmental Protection Agency (EPA) announced in a notice in today’s Federal Register (76 FR 27642-27643) that it would be transferring ‘pesticide related information’ to DHS on May 22nd, 2011. The information was submitted to the EPA’s Office of Pesticide Programs under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) and the Federal Food, Drug, and Cosmetic Act (FFDCA). According to the announcement some of the information “may have been claimed as Confidential Business Information (CBI) by the submitter” (76 FR 28742).

The announcement does not explain what use DHS will make of the data or provide any details about what types of data would be included. It just notes that the transfer is being made “pursuant to the Homeland Security Presidential Directives and the 2009 National Infrastructure Protection Plan” and in accordance with 40 CFR 2.209(c); a provision of EPA regulations requiring this notice.

The EPA specifically declined to “describe all the specific entities that may be affected by this action” and suggested that anyone with concerns about whether or not their information being transferred to DHS should contact Mario Steadman {(703) 305-8338; steadman.mario@epa.gov} at the EPA’s Office of Pesticide Program. EPA has established a docket at http://www.regulations.gov/ (Docket Number: EPA–HQ–OPP–2011-0336), but it is unclear what ‘publicly available information’ will be placed in that document beyond a copy of this notice and any potential public comments about the data transfer.

It would be interesting to know what chemical security program this data was being transferred to. Could it have anything to do with the temporary exemption for agricultural facilities for filing Top Screens? That might be a stretch.