[Senate Report 113-273]
[From the U.S. Government Publishing Office]


113th Congress 
 2d Session                      SENATE                          Report
                                                                113-273
_______________________________________________________________________

                                     

                                                       Calendar No. 598


        AVIATION SECURITY STAKEHOLDER PARTICIPATION ACT OF 2013

                               __________

                              R E P O R T

                                 of the

           COMMITTEE ON COMMERCE, SCIENCE, AND TRANSPORTATION

                                   on

                                S. 1804




               November 17, 2014.--Ordered to be printed

       SENATE COMMITTEE ON COMMERCE, SCIENCE, AND TRANSPORTATION
                    one hundred thirteenth congress
                             second session

             JOHN D. ROCKEFELLER IV, West Virginia, Chairman
 BARBARA BOXER, California            JOHN THUNE, South Dakota
 BILL NELSON, Florida                 ROGER F. WICKER, Mississippi
 MARIA CANTWELL, Washington           ROY BLUNT, Missouri
 MARK PRYOR, Arkansas                 MARCO RUBIO, Florida
 CLAIRE McCASKILL, Missouri           KELLY AYOTTE, New Hampshire
 AMY KLOBUCHAR , Minnesota            DEAN HELLER, Nevada
 MARK BEGICH, Alaska                  DANIEL COATS, Indiana
 RICHARD BLUMENTHAL, Connecticut      TIM SCOTT, South Carolina
 BRIAN SCHATZ, Hawaii                 TED CRUZ, Texas
 ED MARKEY, Massachusetts             DEB FISCHER, Nebraska
 CORY BOOKER, New Jersey              RON JOHNSON, Wisconsin
 JOHN WALSH, Montana
                     Ellen Doneski, Staff Director
                     John Williams, General Counsel
              David Schwietert, Republican Staff Director
              Nick Rossi, Republican Deputy Staff Director
               Rebecca Seidel, Republican General Counsel

                                                       Calendar No. 598
113th Congress                                                   Report
                                 SENATE
 2d Session                                                     113-273

======================================================================



 
        AVIATION SECURITY STAKEHOLDER PARTICIPATION ACT OF 2013

                                _______
                                

               November 17, 2014.--Ordered to be printed

                                _______
                                

     Mr. Rockefeller, from the Committee on Commerce, Science, and 
                Transportation, submitted the following

                              R E P O R T

                         [To accompany S. 1804]

    The Committee on Commerce, Science, and Transportation, to 
which was referred the bill (S. 1804) to amend title 49, United 
States Code, to direct the Assistant Secretary of Homeland 
Security (Transportation Security Administration) to establish 
an Aviation Security Advisory Committee, and for other 
purposes, having considered the same, reports favorably thereon 
with an amendment (in the nature of a substitute) and 
recommends that the bill (as amended) do pass.

                          Purpose of the Bill

    S. 1804 would permanently establish an aviation security 
advisory committee (ASAC) for the Transportation Security 
Administration (TSA) to advise the Assistant Secretary of 
Homeland Security (TSA Administrator) on aviation security 
matters. S. 1804 would also modify the requirements for the 
existing ASAC and exempt it from the Federal Advisory Committee 
Act (FACA) (5 U.S.C. App.).

                          Background and Needs

    The Federal Aviation Administration (FAA) established the 
ASAC in 1989 following the bombing of Pan American World 
Airways Flight 103 over Lockerbie, Scotland. When the TSA was 
established in 2001, the sponsorship of the ASAC transferred to 
the TSA. Throughout its history, the ASAC has been subject to 
FACA, which has limited the length of its charter, and imposed 
public disclosure and other requirements. Furthermore, the TSA 
has allowed the ASAC charter to lapse multiple times, depriving 
stakeholders of a forum to engage the TSA in discussions of 
security concerns. In addition, as much of the TSA's policy 
justifications are considered sensitive security information, 
the ASAC has been inhibited from having open discussions of 
factors driving the TSA's policymaking decisions.
    S. 1804 would mitigate these issues by permanently 
establishing the ASAC, making FACA not applicable to the ASAC, 
and instructing the TSA Administrator to share sensitive 
security information with ASAC members as appropriate.
    To address concerns expressed by aviation security 
stakeholders that their input and insight into the TSA's 
decision-making process has not been sufficiently considered or 
valued, the bill would add reporting and recommendation 
feedback requirements. These requirements would aim to ensure 
stakeholder input is appropriately reviewed, and 
recommendations are thoughtfully considered by the TSA 
Administrator. On several occasions the TSA has set out on 
courses of action that had to be changed when stakeholders 
objected because they would have been harmed: situations that 
could have been avoided through strengthened communication 
between aviation security stakeholders and the TSA. While 
Congress cannot easily codify rules to determine in advance the 
sensitive security information that is appropriate for ASAC 
members to access on the wide variety of issues they may 
examine, the Committee expects the TSA Administrator will 
liberally grant access to all relevant information on issues 
the ASAC examines. Should any of this information be 
classified, the Secretary of Homeland Security should use the 
authority under section 114(u)(8) of title 49, United States 
Code, to expedite security clearances for ASAC members for such 
access. Expanded access to relevant sensitive information 
should improve the ability of the ASAC to meaningfully address 
security problems in a collaborative and constructive fashion 
with the TSA.
    In recent years, the TSA has shifted its focus from one-
size-fits-all security to an intelligence-driven, risk-based 
approach to security. By following a process that assesses the 
various risks to transportation security, and by examining the 
available options to focus its efforts on the most efficient 
risk mitigation, the TSA has improved its ability to promote 
security while also reducing burdens on travelers and aviation 
stakeholders. It is important that the TSA continue making 
progress in this direction. Accordingly, S. 1804 would instruct 
the ASAC to consider risk-based approaches as it develops 
recommendations on aviation security issues.
    While many potential harms could theoretically threaten 
transportation, a risk-based approach means that ASAC efforts 
should be focused on those scenarios that arise from the 
combination of: (1) demonstrably extant attackers who have both 
intent and capability to cause harm; (2) attack paths that are 
not mitigated by existing countermeasures (wherein capability 
gaps exist); and (3) attacks that, if successful, would cause 
significant harm. Based on those criteria, scenarios that are 
high-risk should be examined alongside the costs to mitigate 
them. Costs would include those borne by the government, 
industry, passengers, or other stakeholders. While some costs 
(e.g., impacts on individual liberties) may be difficult to 
quantify, they must also be incorporated into a holistic 
analysis.
    The Committee received a multi-signatory letter of support 
for S. 1804 from the Aeronautical Repair Station Association, 
Aircraft Owners and Pilots Association, Airlines for America, 
Airports Council International--North America, American 
Association of Airport Executives, Cargo Airline Association, 
General Aviation Manufacturers Association, Helicopter 
Association International, International Air Transport 
Association, National Air Carrier Association, National Air 
Transportation Association, National Association of State 
Aviation Officials, National Business Aviation Association, 
NetJets Association of Shared Aircraft Pilots, Regional Airline 
Association, Security Industry Association, Security 
Manufacturers Coalition, Southwest Airlines Pilots Association, 
and U.S. Travel Association.

                         Summary of Provisions

    S. 1804 would codify the ASAC, establish its stakeholder 
membership and chairperson representation, and direct the 
establishment of subcommittees. At a minimum, subcommittees 
would be required to address air cargo security, general 
aviation, perimeter and access control, and security 
technology. Other subcommittees could be established if they 
are determined necessary by the TSA Administrator and the ASAC. 
All subcommittees would be required to approach issues from a 
risk-based perspective. S. 1804 would set the maximum ASAC 
membership at 34 members, with 19 specific stakeholder 
categories that must be represented. ASAC members could be 
granted access to sensitive security information as appropriate 
to perform their advisory duties. The ASAC would submit an 
annual report to the TSA Administrator with its recommendations 
for improving aviation security, and the TSA Administrator 
would be required to provide feedback on all recommendations, 
including a plan of action for those chosen to be implemented 
and a justification for those not implemented.

                          Legislative History

    S. 1804 was introduced on December 11, 2013, by Senator 
Tester and was referred to the Committee on Commerce, Science, 
and Transportation of the Senate. Senator Begich is a 
cosponsor. A TSA oversight hearing was held on April 30, 2014. 
On July 23, 2014, the Committee met in open Executive Session 
and, by a voice vote, ordered S. 1804 reported with an 
amendment in the nature of a substitute. A related bill, H.R. 
1204, is substantially similar. It was introduced by 
Representative Bennie Thompson on March 14, 2013, and referred 
to the Homeland Security Committee, Subcommittee on 
Transportation Security, of the House of Representatives. H.R. 
1204 has five Democratic and three Republican cosponsors. The 
Subcommittee on Transportation Security forwarded H.R. 1204 to 
the full House Homeland Security Committee by voice vote on 
July 24, 2013. The House Homeland Security Committee reported 
H.R. 1204 by voice vote on December 2, 2013. The House of 
Representatives passed the bill by a vote of 411-3 on December 
3, 2013.

                            Estimated Costs

    In accordance with paragraph 11(a) of rule XXVI of the 
Standing Rules of the Senate and section 403 of the 
Congressional Budget Act of 1974, the Committee provides the 
following cost estimate, prepared by the Congressional Budget 
Office:

S. 1804--Aviation Security Stakeholder Participation Act of 2014

    S. 1804 would establish, within the Transportation Security 
Administration (TSA), an advisory committee to make 
recommendations on issues related to aviation security. The 
bill would specify details related to the organizational 
structure and reporting requirements of the proposed committee.
    Under current law, TSA already operates an advisory 
committee related to aviation security. According to TSA, the 
agency currently spends less than $100,000 annually to operate 
the existing committee, which has a mission and organizational 
structure that is similar to that of the advisory committee 
envisioned under S. 1804. As a result, CBO estimates that 
implementing S. 1804 would have no significant additional cost. 
S. 1804 would not affect direct spending or revenues; 
therefore, pay-as-you-go procedures do not apply.
    S. 1804 contains no intergovernmental or private-sector 
mandates as defined in the Unfunded Mandates Reform Act and 
would not affect the budgets of state, local, or tribal 
governments.
    On November 21, 2013, CBO transmitted a cost estimate for 
H.R. 1204, the Aviation Security Stakeholder Participation Act 
of 2013, as ordered reported by the House Committee on Homeland 
Security on October 29, 2013. S. 1804 and H.R. 1204 are 
similar, and the CBO cost estimates for the two pieces of 
legislation are the same.
    The CBO staff contact for this estimate is Megan Carroll. 
The estimate was approved by Peter H. Fontaine, Assistant 
Director for Budget Analysis.

                           Regulatory Impact

    In accordance with paragraph 11(b) of rule XXVI of the 
Standing Rules of the Senate, the Committee provides the 
following evaluation of the regulatory impact of the 
legislation, as reported:

                       NUMBER OF PERSONS COVERED

    S. 1804 is intended to improve aviation security 
stakeholder input by making permanent the existing ASAC. ASAC 
membership is voluntary for aviation security stakeholders. S. 
1804 would set the maximum ASAC membership at 34 people, 
approximately a 25 percent increase compared to the existing 
advisory committee's membership limit of 27.

                            ECONOMIC IMPACT

    S. 1804 is expected to have a positive economic impact. By 
fostering better communication between the TSA and industry 
stakeholders, the TSA's policy decisions can better account for 
industry interests. When intelligence indicates a 
transportation security threat exists, industry input can help 
guide a TSA response toward less economically impactful 
measures.

                                PRIVACY

    The reported bill is not expected to have any impact on the 
privacy rights of the public. It authorizes the TSA to vet ASAC 
members' backgrounds for access to sensitive security 
information, but only on a basis that is voluntary for the 
members.

                               PAPERWORK

    S. 1804 would codify several pieces of documentation, 
including: periodic reports by the ASAC to the TSA 
Administrator on issues the ASAC examines; an annual report by 
the ASAC to the TSA Administrator covering its activities and 
recommendations over the past year; written feedback by the TSA 
Administrator to the ASAC on each recommendation; an action 
plan by the TSA Administrator on each ASAC recommendation that 
the TSA Administrator intends to implement, including a 
justification by the TSA Administrator for any ASAC 
recommendations that will not be implemented, and a report to 
Congress by the TSA Administrator containing information 
relating to ASAC recommendations; upon congressional request, a 
briefing on any feedback provided by the TSA Administrator to 
the ASAC; and upon congressional request, a report by the TSA 
Administrator to Congress providing information relating to 
ASAC recommendations.

                   Congressionally Directed Spending

    In compliance with paragraph 4(b) of rule XLIV of the 
Standing Rules of the Senate, the Committee provides that no 
provisions contained in the bill, as reported, meet the 
definition of congressionally directed spending items under the 
rule.

                      Section-by-Section Analysis


Section 1. Short title

    This section provides that the Act would be cited as the 
``Aviation Security Stakeholder Participation Act of 2014.''

Section 2. Aviation Security Advisory Committee

    Section 2 would add a new section 44946 to the end of 
subchapter II of chapter 449 of title 49, United States Code, 
establishing the ASAC within the TSA. This new section would 
codify the ASAC for the purpose of developing recommendations 
for improvements to aviation security. The ASAC would 
periodically report on issues raised by the TSA Administrator 
or by a majority of its membership, and approve recommendations 
agreed upon by the subcommittees. After approval by the ASAC, 
those recommendations would be delivered to the TSA 
Administrator, who would be required to consult the ASAC as 
appropriate regarding security matters. The ASAC would also be 
required to submit an annual report to the TSA Administrator to 
provide information on its activities, findings, and 
recommendations over the previous year. The TSA Administrator 
would be required to provide feedback to the ASAC on each of 
its recommendations, include an action plan to implement 
recommendations with which the TSA Administrator concurs, and 
provide a justification for rejecting any recommendations with 
which the TSA Administrator does not concur. The Committee 
expects that the TSA Administrator may modify some 
recommendations before implementing them, and in this case the 
TSA Administrator should include justification for those 
modifications in an implementation action plan. The TSA 
Administrator would be required to notify Congress on feedback 
provided to the ASAC, and to provide a briefing upon request. 
If a briefing is requested, prior to that briefing the TSA 
Administrator would submit to Congress a report providing 
information relating to the ASAC recommendations.
    The TSA Administrator would appoint all ASAC members. S. 
1804 would set the maximum ASAC membership at 34 members, which 
would be approximately 25 percent more people than the existing 
ASAC membership limit of 27. The ASAC membership would be 
required to include representatives of at least 19 constituency 
groups, which would be 10 more groups than the 9 required on 
the existing ASAC. The required constituency groups would be as 
follows: air carriers; all-cargo air transportation; indirect 
air carriers; labor organizations representing air carrier 
employees; labor organizations representing transportation 
security officers; aircraft manufacturers; airport operators; 
airport construction and maintenance contractors; labor 
organizations representing employees of airport construction 
and maintenance contractors; general aviation; privacy 
organizations; travel industry; airport-based businesses, 
including minority-owned small businesses; businesses that 
conduct security operations at airports; aeronautical repair 
stations; passenger advocacy groups; aviation technology 
security industry, including screening technology and 
biometrics; victims of terrorist acts against aviation; and law 
enforcement and security experts.
    ASAC members would be required to meet at least 
semiannually, would be prohibited from receiving pay, 
allowances, or benefits from the Federal Government by reason 
of their ASAC service, and could be removed for cause at any 
time by the TSA Administrator. Within 60 days of an ASAC 
member's appointment, the TSA Administrator would determine 
whether there is cause for restricting them from accessing 
sensitive security information. Without such cause, the TSA 
Administrator could grant access to sensitive security 
information that is relevant to the member's advisory duties. 
The ASAC would have a chairperson elected by the appointed 
members.
    S. 1804 would provide for ASAC subcommittees to develop 
specific issue recommendations. At a minimum, subcommittees 
would be required to address air cargo security, general 
aviation, perimeter and access control, and security 
technology. Other subcommittees may also be created as 
necessary to examine issues raised by the TSA Administrator or 
the ASAC. ASAC subcommittees would be required to consider 
risk-based approaches in addressing issues. Each subcommittee 
would be co-chaired by a Government and an industry official, 
and would include subject matter experts with expertise that is 
relevant to the subcommittee's assigned issues. They would meet 
at least quarterly and provide input to ASAC annual reports.
    S. 1804 would provide that FACA would not apply to the 
ASAC.

                        Changes in Existing Law

    In compliance with paragraph 12 of rule XXVI of the 
Standing Rules of the Senate, changes in existing law made by 
the bill, as reported, are shown as follows (existing law 
proposed to be omitted is enclosed in black brackets, new 
material is printed in italic, existing law in which no change 
is proposed is shown in roman):

                        TITLE 49. TRANSPORTATION

                    SUBTITLE VII. AVIATION PROGRAMS

                    PART A. AIR COMMERCE AND SAFETY

                          SUBPART III. SAFETY

                         CHAPTER 449. SECURITY

              SUBCHAPTER II. ADMINISTRATION AND PERSONNEL

44946. Aviation Security Advisory Committee

  (a) Establishment.--The Assistant Secretary shall establish 
within the Transportation Security Administration an aviation 
security advisory committee.
  (b) Duties.--
          (1) In general.--The Assistant Secretary shall 
        consult the Advisory Committee, as appropriate, on 
        aviation security matters, including on the 
        development, refinement, and implementation of 
        policies, programs, rulemaking, and security directives 
        pertaining to aviation security, while adhering to 
        sensitive security guidelines.
          (2) Recommendations.--
                  (A) In general.--The Advisory Committee shall 
                develop, at the request of the Assistant 
                Secretary, recommendations for improvements to 
                aviation security.
                  (B) Recommendations of subcommittees.--
                Recommendations agreed upon by the 
                subcommittees established under this section 
                shall be approved by the Advisory Committee 
                before transmission to the Assistant Secretary.
          (3) Periodic reports.--The Advisory Committee shall 
        periodically submit to the Assistant Secretary--
                  (A) reports on matters identified by the 
                Assistant Secretary; and
                  (B) reports on other matters identified by a 
                majority of the members of the Advisory 
                Committee.
          (4) Annual report.--The Advisory Committee shall 
        submit to the Assistant Secretary an annual report 
        providing information on the activities, findings, and 
        recommendations of the Advisory Committee, including 
        its subcommittees, for the preceding year.
          (5) Feedback.--Not later than 90 days after receiving 
        recommendations transmitted by the Advisory Committee 
        under paragraph (4), the Assistant Secretary shall 
        respond in writing to the Advisory Committee with 
        feedback on each of the recommendations, an action plan 
        to implement any of the recommendations with which the 
        Assistant Secretary concurs, and a justification for 
        why any of the recommendations have been rejected.
          (6) Congressional notification.--Not later than 30 
        days after providing written feedback to the Advisory 
        Committee under paragraph (5), the Assistant Secretary 
        shall notify the Committee on Commerce, Science, and 
        Transportation of the Senate and the Committee on 
        Homeland Security of the House of Representatives on 
        such feedback, and provide a briefing upon request.
          (7) Report to congress.--Prior to briefing the 
        Committee on Commerce, Science, and Transportation of 
        the Senate and the Committee on Homeland Security of 
        the House of Representatives under paragraph (6), the 
        Assistant Secretary shall submit to such committees a 
        report containing information relating to the 
        recommendations transmitted by the Advisory Committee 
        in accordance with paragraph (4).
  (c) Membership.--
          (1) Appointment.--
                  (A) In general.--Not later than 180 days 
                after the date of enactment of the Aviation 
                Security Stakeholder Participation Act of 2014, 
                the Assistant Secretary shall appoint the 
                members of the Advisory Committee.
                  (B) Composition.--The membership of the 
                Advisory Committee shall consist of individuals 
                representing not more than 34 member 
                organizations. Each organization shall be 
                represented by 1 individual (or the 
                individual's designee).
                  (C) Representation.--The membership of the 
                Advisory Committee shall include 
                representatives of air carriers, all-cargo air 
                transportation, indirect air carriers, labor 
                organizations representing air carrier 
                employees, labor organizations representing 
                transportation security officers, aircraft 
                manufacturers, airport operators, airport 
                construction and maintenance contractors, labor 
                organizations representing employees of airport 
                construction and maintenance contractors, 
                general aviation, privacy organizations, the 
                travel industry, airport-based businesses 
                (including minority-owned small businesses), 
                businesses that conduct security operations at 
                airports, aeronautical repair stations, 
                passenger advocacy groups, the aviation 
                security technology industry (including 
                screening technology and biometrics), victims 
                of terrorist acts against aviation, and law 
                enforcement and security experts.
          (2) Removal.--The Assistant Secretary may review the 
        participation of a member of the Advisory Committee and 
        remove such member for cause at any time.
          (3) Prohibition on compensation.--The members of the 
        Advisory Committee shall not receive pay, allowances, 
        or benefits from the Government by reason of their 
        service on the Advisory Committee.
          (4) Meetings.--The Assistant Secretary shall require 
        the Advisory Committee to meet at least semiannually 
        and may convene additional meetings as necessary.
          (5) Member access to sensitive security 
        information.--Not later than 60 days after the date of 
        a member's appointment, the Assistant Secretary shall 
        determine if there is cause for the member to be 
        restricted from possessing Sensitive Security 
        Information. Without such cause, and upon the member 
        voluntarily signing a non-disclosure agreement, the 
        member may be granted access to Sensitive Security 
        Information that is relevant to the member's advisory 
        duties. The member shall protect the Sensitive Security 
        Information according to part 1520 of title 49 of the 
        Code of Federal Regulations.
          (6) Chairperson.--A stakeholder representative on the 
        Advisory Committee who is elected by the appointed 
        membership of the Advisory Committee shall chair the 
        Advisory Committee.
  (d) Subcommittees.--
          (1) Membership.--The Advisory Committee chairperson, 
        in coordination with the Assistant Secretary, may 
        establish within the Advisory Committee any 
        subcommittee that the Assistant Secretary and Advisory 
        Committee determine to be necessary. The Assistant 
        Secretary and the Advisory Committee shall create 
        subcommittees to address aviation security issues, 
        including the following:
                  (A) Air cargo security.--The implementation 
                of the air cargo security programs established 
                by the Transportation Security Administration 
                to screen air cargo on passenger aircraft and 
                all-cargo aircraft in accordance with 
                established cargo screening mandates.
                  (B) General aviation.--General aviation 
                facilities, general aviation aircraft, and 
                helicopter operations at general aviation and 
                commercial service airports.
                  (C) Perimeter and access control.--
                Recommendations on airport perimeter security, 
                exit lane security and technology at commercial 
                service airports, and access control issues.
                  (D) Security technology.--Security technology 
                standards and requirements, including their 
                harmonization internationally; technology to 
                screen passengers, passenger baggage, carry-on 
                baggage, and cargo; and biometric technology.
          (2) Risk-based security.--All subcommittees 
        established by the Advisory Committee co-chairs shall 
        consider risk-based security approaches in the 
        performance of their functions that weigh optimum 
        balance of costs and benefits in transportation 
        security, including for passenger screening, baggage 
        screening, air cargo security policies, and general 
        aviation security matters.
          (3) Meetings and reporting.--Each subcommittee shall 
        meet at least quarterly and submit to the Advisory 
        Committee for inclusion in the annual report required 
        under subsection (b)(4) information, including 
        recommendations, regarding issues within the 
        subcommittee.
          (4) Subcommittee chairs.--Each subcommittee shall be 
        co-chaired by a Government and an industry official.
  (e) Subject Matter Experts.--Each subcommittee under this 
section shall include subject matter experts with relevant 
expertise who are appointed by the respective subcommittee 
chairperson.
  (f) Nonapplicability of FACA.--The Federal Advisory Committee 
Act (5 U.S.C. App.) shall not apply to the Advisory Committee 
and its subcommittees.
  (g) Definitions.--In this section:
          (1) Advisory committee.--The term ``Advisory 
        Committee'' means the aviation security advisory 
        committee established under subsection (a).
          (2) Assistant secretary.--The term ``Assistant 
        Secretary' means the Assistant Secretary of Homeland 
        Security (Transportation Security Administration).
          (3) Perimeter security.--
                  (A) In general.--The term ``perimeter 
                security'' means procedures or systems to 
                monitor, secure, and prevent unauthorized 
                access to an airport, including its airfield 
                and terminal.
                  (B) Inclusions.--The term ``perimeter 
                security'' includes the fence area surrounding 
                an airport, access gates, and access controls.