[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.