[House Report 117-310]
[From the U.S. Government Publishing Office]
117th Congress } { Rept. 117-310
HOUSE OF REPRESENTATIVES
2d Session } { Part 1
======================================================================
RIGHTS FOR THE TRANSPORTATION SECURITY ADMINISTRATION WORKFORCE ACT OF
2021
_______
May 6, 2022.--Committed to the Committee of the Whole House on the
State of the Union and ordered to be printed
_______
Mr. Thompson of Mississippi, from the Committee on Homeland Security,
submitted the following
R E P O R T
together with
MINORITY VIEWS
[To accompany H.R. 903]
The Committee on Homeland Security, to whom was referred
the bill (H.R. 903) to enhance the security operations of the
Transportation Security Administration and stability of the
transportation security workforce by applying the personnel
system under title 5, United States Code, to employees of the
Transportation Security Administration who provide screening of
all passengers and property, and for other purposes, having
considered the same, reports favorably thereon with amendments
and recommends that the bill as amended do pass.
CONTENTS
Page
Purpose and Summary.............................................. 6
Background and Need for Legislation.............................. 7
Hearings......................................................... 9
Committee Consideration.......................................... 10
Committee Votes.................................................. 10
Committee Oversight Findings..................................... 18
Correspondence with Other Committees............................. 18
C.B.O. Estimate, New Budget Authority, Entitlement Authority, and
Tax Expenditures............................................... 19
Federal Mandates Statement....................................... 19
Duplicative Federal Programs..................................... 19
Statement of General Performance Goals and Objectives............ 19
Congressional Earmarks, Limited Tax Benefits, and Limited Tariff
Benefits....................................................... 19
Advisory Committee Statement..................................... 19
Applicability to Legislative Branch.............................. 20
Section-by-Section Analysis of the Legislation................... 20
Changes in Existing Law Made by the Bill, as Reported............ 24
Minority Views................................................... 42
The amendments are as follows:
Strike all after the enacting clause and insert the
following:
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Rights for the Transportation Security
Administration Workforce Act of 2021'' or the ``Rights for the TSA
Workforce Act of 2021''.
SEC. 2. DEFINITIONS.
For purposes of this Act--
(1) the term ``adjusted basic pay'' means--
(A) the rate of pay fixed by law or administrative
action for the position held by a covered employee
before any deductions; and
(B) any regular, fixed supplemental payment for non-
overtime hours of work creditable as basic pay for
retirement purposes, including any applicable locality
payment and any special rate supplement;
(2) the term ``Administrator'' means the Administrator of the
Transportation Security Administration;
(3) the term ``appropriate congressional committees'' means
the Committees on Homeland Security and Oversight and Reform of
the House of Representatives and the Committees on Commerce,
Science, and Transportation and Homeland Security and
Governmental Affairs of the Senate;
(4) the term ``at-risk employee'' means a Transportation
Security Officer, Federal Air Marshal, canine handler, or any
other employee of the Transportation Security Administration
carrying out duties that require substantial contact with the
public during the COVID-19 national emergency;
(5) the term ``conversion date'' means the date as of which
subparagraphs (A) through (F) of section 3(c)(1) take effect;
(6) the term ``covered employee'' means an employee who holds
a covered position;
(7) the term ``covered position'' means a position within the
Transportation Security Administration;
(8) the term ``COVID-19 national emergency'' means the
national emergency declared by the President under the National
Emergencies Act (50 U.S.C. 1601 et seq.) on March 13, 2020,
with respect to the coronavirus;
(9) the term ``employee'' has the meaning given such term by
section 2105 of title 5, United States Code;
(10) the term ``Secretary'' means the Secretary of Homeland
Security;
(11) the term ``TSA personnel management system'' means any
personnel management system established or modified under--
(A) section 111(d) of the Aviation and Transportation
Security Act (49 U.S.C. 44935 note); or
(B) section 114(n) of title 49, United States Code;
(12) the term ``TSA'' means the Transportation Security
Administration; and
(13) the term ``2019 Determination'' means the publication,
entitled ``Determination on Transportation Security Officers
and Collective Bargaining'', issued on July 13, 2019, by
Administrator David P. Pekoske, as modified, or any superseding
subsequent determination.
SEC. 3. CONVERSION OF TSA PERSONNEL.
(a) Restrictions on Certain Personnel Authorities.--
(1) In general.--Notwithstanding any other provision of law,
and except as provided in paragraph (2), effective as of the
date of the enactment of this Act--
(A) any TSA personnel management system in use for
covered employees and covered positions on the day
before such date of enactment, and any TSA personnel
management policy, letter, guideline, or directive in
effect on such day may not be modified;
(B) no TSA personnel management policy, letter,
guideline, or directive that was not established before
such date issued pursuant to section 111(d) of the
Aviation and Transportation Security Act (49 U.S.C.
44935 note) or section 114(n) of title 49, United
States Code, may be established; and
(C) any authority to establish or adjust a human
resources management system under chapter 97 of title
5, United States Code, shall terminate with respect to
covered employees and covered positions.
(2) Exceptions.--
(A) Pay.--Notwithstanding paragraph (1)(A), the
limitation in that paragraph shall not apply to any TSA
personnel management policy, letters, guideline, or
directive related to annual adjustments to pay
schedules and locality-based comparability payments in
order to maintain parity with such adjustments
authorized under section 5303, 5304, 5304a, and 5318 of
title 5, United States Code; and
(B) Additional policy.--Notwithstanding paragraph
(1)(B), new TSA personnel management policy may be
issued if--
(i) such policy is needed to resolve a matter
not specifically addressed in policy in effect
on the date of enactment of this Act; and
(ii) the Secretary provides such policy, with
an explanation of its necessity, to the
appropriate congressional committees not later
than 7 days of issuance.
(C) Emerging threats to transportation security
during transition period.--Notwithstanding paragraph
(1), any TSA personnel management policy, letter,
guideline, or directive related to an emerging threat
to transportation security, including national
emergencies or disasters and public health threats to
transportation security, may be modified or established
until the effective date in subsection (c)(1). The
Secretary shall provide to the appropriate
congressional committees any modification or
establishment of such a TSA personnel management
policy, letter, guideline, or directive, with an
explanation of its necessity, not later than 7 days of
such modification or establishment.
(b) Personnel Authorities During Transition Period.--Any TSA
personnel management system in use for covered employees and covered
positions on the day before the date of enactment of this Act and any
TSA personnel management policy, letter, guideline, or directive in
effect on the day before the date of enactment of this Act shall remain
in effect until the conversion date.
(c) Transition to Title 5.--
(1) In general.--Except as provided in paragraph (2),
effective as of the date determined by the Secretary, but in no
event later than December 31, 2022--
(A) the TSA personnel management system shall cease
to be in effect;
(B) section 114(n) of title 49, United States Code,
is repealed;
(C) section 111(d) of the Aviation and Transportation
Security Act (49 U.S.C. 44935 note) is repealed;
(D) any TSA personnel management policy, letter,
guideline, and directive, including the 2019
Determination, shall cease to be effective;
(E) any human resources management system established
or adjusted under chapter 97 of title 5, United States
Code, with respect to covered employees or covered
positions shall cease to be effective; and
(F) covered employees and covered positions shall be
subject to the provisions of title 5, United States
Code.
(2) Chapters 71 and 77 of title 5.--Not later than 90 days
after the date of enactment of this Act--
(A) chapter 71 and chapter 77 of title 5, United
States Code, shall apply to covered employees carrying
out screening functions pursuant to section 44901 of
title 49, United States Code; and
(B) any policy, letter, guideline, or directive
issued under section 111(d) of the Aviation and
Transportation Security Act (49 U.S.C. 44935 note)
related to matters otherwise covered by such chapter 71
or 77 shall cease to be in effect.
(3) Assistance of other agencies.--Not later than 180 days
after the date of enactment of this Act or December 31, 2022,
whichever is earlier--
(A) the Office of Personnel Management shall
establish a position series and classification standard
for the positions of Transportation Security Officer,
Federal Air Marshal, Transportation Security Inspector,
and other positions requested by the Administrator; and
(B) the Department of Agriculture's National Finance
Center shall make necessary changes to its Financial
Management Services and Human Resources Management
Services to ensure payroll, leave, and other personnel
processing systems for TSA personnel are commensurate
with chapter 53 of title 5, United States Code, and
provide functions as needed to implement this Act.
(d) Safeguards on Grievances and Appeals.--
(1) In general.--Each covered employee with a grievance or
appeal pending within TSA on the date of the enactment of this
Act or initiated during the transition period described in
subsection (c) shall have the right to have such grievance or
appeal removed to proceedings pursuant to title 5, United
States Code, or continued within the TSA.
(2) Authority.--With respect to any grievance or appeal
continued within the TSA pursuant to paragraph (1), the
Administrator may consider and finally adjudicate such
grievance or appeal notwithstanding any other provision of this
Act.
(3) Preservation of rights.--Notwithstanding any other
provision of law, any appeal or grievance continued pursuant to
this section that is not finally adjudicated pursuant to
paragraph (2) shall be preserved and all timelines tolled until
the rights afforded by application of chapters 71 and 77 of
title 5, United States Code, are made available pursuant to
section 3(c)(2) of this Act.
SEC. 4. TRANSITION RULES.
(a) Nonreduction in Pay and Compensation.--Under pay conversion rules
as the Secretary may prescribe to carry out this Act, a covered
employee converted from a TSA personnel management system to the
provisions of title 5, United States Code, pursuant to section
3(c)(1)(F)--
(1) shall not be subject to any reduction in either the rate
of adjusted basic pay payable or law enforcement availability
pay payable to such covered employee; and
(2) shall be credited for years of service in a specific pay
band under a TSA personnel management system as if the employee
had served in an equivalent General Schedule position at the
same grade, for purposes of determining the appropriate step
within a grade at which to establish the employee's converted
rate of pay.
(b) Retirement Pay.--For purposes of determining a covered employee's
average pay to calculate the employee's retirement annuity, consistent
with title 5, United States Code, for any covered employee who retires
within three years of the conversion date, the higher of the following
shall be used:
(1) The covered employee's annual rate of basic pay on the
first date of the pay period following the conversion under
section 3(c)(1).
(2) The amount determined consistent with sections 8331(4) or
8401(3) of such title 5, whichever is applicable.
(c) Limitation on Premium Pay.--Notwithstanding section 5547 of title
5, United States Code, or any other provision of law, a Federal Air
Marshal or criminal investigator hired prior to the date of enactment
of this Act may be eligible for premium pay up to the maximum level
allowed by the Administrator prior to the date of enactment of this
Act. The Office of Personnel Management shall recognize such premium
pay as fully creditable for the purposes of calculating pay and
retirement benefits.
(d) Collective Bargaining Unit.--Notwithstanding section 7112 of
title 5, United States Code, following the application of chapter 71
pursuant to section 3(c)(2) of this Act, full- and part-time non-
supervisory Transportation Security Administration personnel carrying
out screening functions under section 44901 of title 49, United States
Code, shall remain eligible to form a collective bargaining unit.
(e) Preservation of Other Rights.--In the case of each covered
employee as of the conversion date, the Secretary shall take any
actions necessary to ensure that--
(1) any annual leave, sick leave, or other paid leave
accrued, accumulated, or otherwise available to a covered
employee immediately before the conversion date shall remain
available to the employee until used, notwithstanding any
limitation on accumulated leave under chapter 63 of title 5,
United States Code; and
(2) part-time personnel carrying out screening functions
under section 44901 of title 49, United States Code, continue
to pay Federal Employees Health Benefits premiums on the same
basis as full-time TSA employees.
(f) Provision of Additional Benefits.--Subject to negotiations with
the exclusive representative of full- and part-time non-supervisory
Transportation Security Administration personnel carrying out screening
functions under section 44901 of title 49, United States Code, pursuant
to chapter 71 of title 5, United States Code, following the application
of such chapter 71 pursuant to section 3(c)(2) of this Act, the
Administrator may--
(1) notwithstanding chapter 63 of title 5, United States
Code, provide leave benefits for covered employees that exceed
those otherwise provided under such chapter;
(2) notwithstanding chapter 55 of title 5, United States
Code, provide pay for covered employees that exceeds that
otherwise provided under such chapter; and
(3) notwithstanding sections 5753 and 5754 of title 5, United
States Code, set payable rates and conditions for the payment
of incentives and bonuses that exceed those otherwise provided
under such sections.
SEC. 5. CONSULTATION REQUIREMENT.
(a) Exclusive Representative.--
(1) In general.--
(A) Beginning on the date chapter 71 of title 5,
United States Code, begins to apply to covered
employees pursuant to section 3(c)(2), the labor
organization certified by the Federal Labor Relations
Authority on June 29, 2011, or any successor labor
organization, shall be treated as the exclusive
representative of full- and part-time non-supervisory
TSA personnel carrying out screening functions under
section 44901 of title 49, United States Code, and
shall be the exclusive representative for such
personnel under chapter 71 of title 5, United States
Code, with full rights under such chapter.
(B) Nothing in this subsection shall be construed to
prevent covered employees from selecting an exclusive
representative other than the labor organization
described under paragraph (1) for purposes of
collective bargaining under such chapter 71.
(2) National level.--Notwithstanding any provision of such
chapter 71, collective bargaining for any unit of covered
employees shall occur at the national level, but may be
supplemented by mutual consent of the parties by local level
bargaining and local level agreements.
(3) Current agreement.--Any collective bargaining agreement
covering such personnel in effect on the date of enactment of
this Act shall remain in effect until a collective bargaining
agreement is entered into under such chapter 71, unless the
Administrator and exclusive representative mutually agree to
revisions to such agreement.
(b) Consultation Process.--Not later than seven days after the date
of the enactment of this Act, the Secretary shall consult with the
exclusive representative for the personnel described in subsection (a)
under chapter 71 of title 5, United States Code, on the formulation of
plans and deadlines to carry out the conversion of full- and part-time
non-supervisory TSA personnel carrying out screening functions under
section 44901 of title 49, United States Code, under this Act. Prior to
the date such chapter 71 begins to apply pursuant to section 3(c)(2),
the Secretary shall provide (in writing) to such exclusive
representative the plans for how the Secretary intends to carry out the
conversion of such personnel under this Act, including with respect to
such matters as--
(1) the anticipated conversion date; and
(2) measures to ensure compliance with sections 3 and 4.
(c) Required Agency Response.--If any views or recommendations are
presented under subsection (b) by the exclusive representative, the
Secretary shall consider the views or recommendations before taking
final action on any matter with respect to which the views or
recommendations are presented and provide the exclusive representative
a written statement of the reasons for the final actions to be taken.
SEC. 6. NO RIGHT TO STRIKE.
Nothing in this Act may be considered--
(1) to repeal or otherwise affect--
(A) section 1918 of title 18, United States Code
(relating to disloyalty and asserting the right to
strike against the Government); or
(B) section 7311 of title 5, United States Code
(relating to loyalty and striking); or
(2) to otherwise authorize any activity which is not
permitted under either provision of law cited in paragraph (1).
SEC. 7. PROPOSAL ON HIRING AND CONTRACTING RESTRICTIONS.
Not later than one year after the date of enactment of this Act, the
Secretary shall submit a plan to the appropriate congressional
committees on a proposal to uniformly apply, for the purposes of hiring
and for authorizing or entering into any contract for service, the
restrictions in section 70105(c) of title 46, United States Code, and
section 44936 of title 49, United States Code.
SEC. 8. COMPTROLLER GENERAL REVIEWS.
(a) Review of Recruitment.--Not later than one year after the date of
the enactment of this Act, the Comptroller General shall submit to
Congress a report on the efforts of the TSA regarding recruitment,
including recruitment efforts relating to veterans and the dependents
of veterans and members of the Armed Forces and the dependents of such
members. Such report shall also include recommendations regarding how
the TSA may improve such recruitment efforts.
(b) Review of Implementation.--Not later than 60 days after the
conversion date, the Comptroller General shall commence a review of the
implementation of this Act. The Comptroller General shall submit to
Congress a report on its review no later than one year after such
conversion date.
SEC. 9. SENSE OF CONGRESS.
It is the sense of Congress that--
(1) the TSA's personnel system provides insufficient benefits
and workplace protections to the workforce that secures the
nation's transportation systems and that the TSA's workforce
should be provided protections and benefits under title 5,
United States Code; and
(2) the provision of these title 5 protections and benefits
should not result in a reduction of pay or benefits to current
TSA employees.
SEC. 10. ASSISTANCE FOR FEDERAL AIR MARSHAL SERVICE.
The Administrator may communicate with organizations representing a
significant number of Federal Air Marshals, to the extent provided by
law, to address concerns regarding Federal Air Marshals related to the
following:
(1) Mental health.
(2) Suicide rates.
(3) Morale and recruitment.
(4) Any other personnel issues the Administrator determines
appropriate.
SEC. 11. PREVENTION AND PROTECTION AGAINST CERTAIN ILLNESS.
The Administrator, in coordination with the Director of the Centers
for Disease Control and Prevention and the Director of the National
Institute of Allergy and Infectious Diseases, shall ensure that covered
employees are provided proper guidance regarding prevention and
protections against the COVID-19 National Emergency, including
appropriate resources.
SEC. 12. HAZARDOUS DUTY PAYMENTS.
Not later than 90 days following the date of enactment of this Act,
the Administrator shall provide a one-time bonus payment of $3,000 to
each at-risk employee.
SEC. 13. AUTHORIZATION OF APPROPRIATIONS.
There is authorized to be appropriated such sums as may be necessary,
to remain available until expended, to carry out this Act.
Amend the title so as to read:
A bill to enhance the security operations of the
Transportation Security Administration and stability of the
transportation security workforce by applying the personnel
system under title 5, United States Code, to employees of the
Transportation Security Administration, and for other purposes.
Purpose and Summary
H.R. 903, the ``Rights for the Transportation Security
Administration Workforce Act of 2021'' seeks to enhance the
Transportation Security Administration's (TSA) security
operations by aligning TSA's personnel system with the system
used by most other Federal agencies to drive enhancements to
compensation, collective bargaining, and disciplinary rights
for TSA's workforce. This change could help improve
longstanding employee morale challenges within this frontline
homeland security workforce and better position TSA to recruit,
train, and retain the highly skilled, professional workforce
required to execute its critical security mission.
Since its inception in 2001, TSA, a core component of the
Department of Homeland Security (DHS), has had the authority to
develop and maintain its own personnel system separate from the
rest of the Federal Government; under TSA's system, its 60,000-
person workforce does not receive the compensation or baseline
protections and worker rights that are available to Federal
employees elsewhere in the Federal Government. H.R. 903 directs
a process for transitioning TSA to the personnel system set
forth under title 5 of the U.S. Code with certain chapters of
title 5 relating to labor rights and disciplinary appeal rights
available to the TSA workforce within 90 days of enactment and
the applicability of title 5, in its entirety, on a date
determined by the Secretary of Homeland Security but in no
event later than December 31, 2022. Additionally, H.R. 903
specifies that, following the transition to title 5 and subject
to collective bargaining negotiations, TSA may continue to
provide certain benefits that may exceed those generally
provided under title 5.
In carrying out the transition, H.R. 903 directs TSA to be
mindful of tenure and status, particularly with respect to
leave, pay, group life insurance, health insurance, retirement,
and severance pay, including protections to ensure that no
employee's pay is reduced due to the transition. The Committee
intends for TSA to work closely with the Office of Personnel
Management to ensure pay calculations, retirement benefits, and
other benefits are calculated in a manner which maximally
benefits the employee. The bill stipulates how various issues
would be handled during a transition period, including ongoing
grievances, TSA's authorities to respond to emerging threats or
national emergencies, and consultation with the labor
organization serving as the exclusive representative of the
Transportation Security Officer (TSO) workforce. It also
specifies that nothing in the Act may be construed as providing
employees a right to strike.
Additionally, H.R. 903 requires the DHS Secretary to submit
a proposal to Congress to uniformly apply certain statutory
hiring standards and disqualifying offenses across various
transportation security worker populations and requires the
Comptroller General to review TSA's recruitment efforts,
including as they relate to veterans and their dependents and
TSA's implementation of the Act. With respect to COVID-19, H.R.
903 requires TSA to provide a one-time hazardous duty bonus
payments to employees carrying out duties that require
substantial contact with the public during the COVID-19
national emergency and seeks to ensure the protection of the
TSA workforce by requiring guidance and resources to be
developed in coordination with the Centers for Disease Control
and Prevention and the National Institute of Allergy and
Infectious Diseases. Finally, the bill authorizes
appropriations necessary to carry out the Act. H.R. 903 takes
additional steps to support Federal Air Marshals (FAMs),
authorizing the TSA Administrator to communicate with
organizations representing FAMs to address concerns regarding
mental health, suicide rates, morale and recruitment, and other
personnel issues affecting FAMs.
Background and Need for Legislation
Following the September 11, 2001, terrorist attacks,
Congress established TSA with the mission of securing the
Nation's transportation systems against further attacks (see
the Aviation and Transportation Security Act, Pub. L. 107-71).
The law granted the TSA Administrator with broad authorities to
employ, appoint, discipline, terminate, and fix the
compensation for its workforce which includes TSOs. Some voiced
a belief that TSA could use these authorities to create a
modern, nimble personnel management system that would work
better than the civil service system regulated by title 5 of
the U.S. Code. Two decades later, however, TSA's personnel
system is severely lacking, and one of the Federal Government's
most diverse workforces remains one of its lowest paid. As a
result, TSA struggles with low morale and high attrition.
Several factors contribute to TSA's morale and attrition
problems. In the two decades of TSA's existence, TSO job
responsibilities have steadily increased as TSA has rolled out
sophisticated technologies and security policies to provide a
formidable defense against potential terrorist attacks. In just
the past few years, TSOs have faced a range of new challenges,
including a government shutdown which required them to work
without pay; record-breaking travel volumes which required them
to work long overtime hours; an ongoing global pandemic which
poses significant health risks to TSOs; an unprecedented uptick
in the number of firearms brought to security checkpoints,
which threaten TSOs' safety; and a frightening surge in unruly
passenger behavior, including increased assaults against TSOs.
Unfortunately, TSOs' pay and benefits have not evolved to
reflect the challenges of the job, leaving entry-level TSOs
among the lowest paid Federal employees. Unlike the General
Schedule pay system under title 5, TSA's pay scale does not
include regular annual increases. Salaries for those who have
worked for the agency for nearly 20 years often remain near the
bottom of their pay grade. According to TSA, TSOs are paid 30-
percent less on average than Federal workers performing similar
roles under title 5. A competitive labor market has compounded
these problems, making TSA's salaries increasingly inadequate
to attract and retain the talent TSA needs to execute its
mission. Year after year, TSA ranks at or near the bottom in
Federal employee morale surveys regarding pay. In the 2020
``Best Places to Work'' survey, TSA ranked 407th out of 407
agency subcomponents--dead last--on pay satisfaction.
In addition to struggles with pay, TSA employees are not
granted many of the basic workplace protections afforded most
other Federal workers under the title 5 personnel system. For
example, TSOs' collective bargaining rights are not guaranteed
in statute and exist at the Administrator's sole discretion.
TSOs were not allowed to unionize prior to 2011, and since
then, they have only been allowed to negotiate over a very
limited set of issues. Labor negotiations in which management
has all the power and can walk away from the table at any time
are of limited value to workers. Until recently, TSA employees
also had limited options for filing workplace grievances and
could not appeal disciplinary actions to an outside third-party
such as the Merit Systems Protection Board (MSPB).
Historically, TSA management has used its special personnel
authorities to mostly benefit senior management, not the
frontline workforce. Senior managers, for example, have been
permitted to award each other with large bonuses that would be
prohibited under the title 5 personnel system. In one instance,
a senior manager received $90,000 in bonuses in a single year.
The costs of maintaining the status quo are high. TSA faces
chronic, major challenges in training, hiring, and retaining
frontline workers. Low morale and high attrition have had an
adverse impact on the agency, crippling its ability to develop
a mature workforce. In March 2019, the DHS Office of the
Inspector General (OIG) published a report highlighting major
problems TSA faces in recruiting, training, and retaining
workers. The report found that, over a 2-year span in Fiscal
Years 2016 and 2017, approximately one in three TSOs left the
agency. According to the OIG, TSA spends an average of more
than $8,500 on recruiting and training each new hire. Given
TSA's turnover challenges, those costs add up fast: in 2017
alone, TSA spent $75 million on hiring and training--including
$16 million on nearly 2,000 new hires who left within 6 months.
Such drastic turnover results in less experience within the
workforce, which ultimately threatens TSA's ability to reliably
detect threats to transportation systems.
The Biden Administration has worked to address the
challenges plaguing the TSA workforce. In June 2021, DHS
Secretary Alejandro Mayorkas directed TSA to develop options
for increasing pay and expanding collective bargaining and
third-party appeal rights. In September 2021, TSA Administrator
David Pekoske announced that TSA and the MSPB entered into a
Memorandum of Agreement through which the MSPB agreed to review
adverse action appeals from screening workforce employees. In
March 2022, President Biden submitted to Congress the budget
request for Fiscal Year 2023, which included an initiative to
fund pay increases for TSA employees to provide salaries
similar to what would be provided under the General Schedule.
The President's budget proposal also requested funding to
support an expansion in collective bargaining rights that would
see TSOs enjoy rights similar to those afforded under title 5,
as well as funding to support continuation of MSPB appeal
rights.
H.R. 903 seeks to codify and build on these efforts by
making TSA subject to the requirements of title 5 in statute.
Under title 5, TSA employees would receive higher salaries as
well as regular salary increases in future years. Employees
would be guaranteed access to MSPB processes as well as
permanent, expanded collective bargaining rights as are
available to most other Federal workers. Moving the TSA
workforce to the title 5 personnel system is intended to have a
stabilizing effect and reduce what TSA needs to spend to
attract and retain TSOs. Such a move is critical to ensuring
TSA can continue to secure the Nation's transportation systems.
Hearings
For the purposes of clause 3(c)(6) of rule XIII of the
Rules of the House of Representatives, the following hearings
were used to develop H.R. 903:
On May 4, 2021, the Subcommittee on
Transportation and Maritime Security held a hearing
entitled, ``Twenty Years of Workforce Challenges: The
Need for H.R. 903, the Rights for the TSA Workforce Act
of 2021.'' The Subcommittee heard testimony from
Everett Kelley, Ph.D., National President, American
Federation of Government Employees, AFL-CIO; Joi Olivia
Chaney, Senior Vice President for Policy & Advocacy and
Executive Director of the Washington Bureau, National
Urban League; Tom Warrick, Nonresident Senior Fellow
and Director of the Future of DHS Project, Atlantic
Council; and Jeffrey Neal, Principal, ChiefHRO, LLC.
In the 116th Congress, on May 21, 2019, the
Subcommittee on Transportation and Maritime Security
held a hearing entitled, ``The TSA Workforce Crisis: A
Homeland Security Risk.'' The Subcommittee heard
testimony from John V. Kelly, Acting Inspector General,
Department of Homeland Security; J. David Cox, National
President, American Federation of Government Employees,
AFL-CIO; Lance Lyttle, Managing Director, Aviation
Division, Port of Seattle; and Jeffrey Neal, Senior
Vice President, ICF.
Subsequent to Committee consideration of H.R. 903, the
Committee held the following hearings that are pertinent to the
legislation:
On September 29, 2021, the Committee on
Homeland Security held a hearing entitled, ``20 Years
after 9/11: The State of the Transportation Security
Administration.'' The Committee heard testimony from
Hon. David Pekoske, Administrator, Transportation
Security Administration (TSA); Hon. Peter Neffenger,
Private Citizen, Former Administrator, TSA; Hon. John
S. Pistole, President, Anderson University, Former
Administrator, TSA; and Hon. J.M. Loy, Private Citizen,
Former Administrator, TSA.
On November 16, 2021, the Subcommittee on
Transportation and Maritime Security held a hearing
entitled, ``On the Frontlines in Turbulent Times:
Workforce Perspectives on the State of Transportation
Security.'' The Subcommittee heard testimony from
Everett Kelley, Ph.D., National President, American
Federation of Government Employees (AFGE), AFL-CIO;
Sara Nelson, International President, Association of
Flight Attendants-CWA, AFL-CIO; John Samuelson,
International President, Transport Workers Union of
America, AFL-CIO; and John Casaretti, President, Air
Marshal Association.
Committee Consideration
The Committee met on July 28, 2021, a quorum being
present, to consider H.R. 903 and ordered the measure to be
favorably reported to the House, with amendments, by a recorded
vote of 19 ayes and 11 noes.
Committee Votes
Clause 3(b) of rule XIII requires the Committee to list the
recorded votes on the motion to report legislation and
amendments thereto.
1. An amendment to the amendment in the nature of a
substitute offered by Mr. Katko of New York to strike
page 1, line 1, and all that follows and insert
substitute text that would increase the pay of certain
TSA frontline employees, provide for TSO salaries
during a lapse in appropriations, and reduce the number
of Senior Executive Service-level positions at TSA
headquarters. The amendment failed by a recorded vote
of 11 ayes and 19 noes (Rollcall No. 1).
Committee Record Vote No. 1
Katko Amendment No. 1 to Thompson (MS) Amendment in the Nature of a Substitute to H.R. 903
Failed: 11 ayes to 19 noes
----------------------------------------------------------------------------------------------------------------
Majority Members Vote Minority Members Vote
----------------------------------------------------------------------------------------------------------------
Ms. Jackson Lee................................ No Mr. Katko.......................... Aye
Mr. Langevin................................... No Mr. McCaul......................... Aye
Mr. Payne...................................... ............ Mr. Higgins (LA)................... ............
Mr. Correa..................................... No Mr. Guest.......................... Aye
Ms. Slotkin.................................... No Mr. Bishop (NC).................... ............
Mr. Cleaver.................................... No Mr. Van Drew....................... No
Mr. Green (TX)................................. No Mr. Norman......................... Aye
Ms. Clarke (NY)................................ No Mrs. Miller-Meeks.................. Aye
Mr. Swalwell................................... No Mrs. Harshbarger................... Aye
Ms. Titus...................................... No Mr. Clyde.......................... Aye
Mrs. Watson Coleman............................ No Mr. Gimenez........................ Aye
Miss Rice (NY)................................. No Mr. LaTurner....................... ............
Mrs. Demings................................... No Mr. Meijer......................... Aye
Ms. Barragan................................... No Mrs. Cammack....................... Aye
Mr. Gottheimer................................. No Mr. Pfluger........................ Aye
Mrs. Luria..................................... No Mr. Garbarino...................... No
Mr. Malinowski................................. No
Mr. Torres (NY)................................ ............
Mr. Thompson (MS), Chairman.................... No
----------------------------------------------------------------------------------------------------------------
2. An amendment to the amendment in the nature of a
substitute offered by Mrs. Watson Coleman of New Jersey
to ease the transition of the TSA workforce to title 5,
ensure the provision of additional benefits, provide
bonus pay, and make technical amendments. The amendment
was agreed to by a recorded vote of 21 ayes and 10 noes
(Rollcall No. 2).
Committee Record Vote No. 2
Watson Coleman Amendment to Thompson (MS) Amendment in the Nature of a Substitute to H.R. 903
Agreed to: 21 ayes to 10 noes
----------------------------------------------------------------------------------------------------------------
Majority Members Vote Minority Members Vote
----------------------------------------------------------------------------------------------------------------
Ms. Jackson Lee................................ Aye Mr. Katko.......................... Aye
Mr. Langevin................................... ............ Mr. McCaul......................... No
Mr. Payne...................................... ............ Mr. Higgins (LA)................... ............
Mr. Correa..................................... Aye Mr. Guest.......................... No
Ms. Slotkin.................................... Aye Mr. Bishop (NC).................... ............
Mr. Cleaver.................................... Aye Mr. Van Drew....................... Aye
Mr. Green (TX)................................. Aye Mr. Norman......................... No
Ms. Clarke (NY)................................ Aye Mrs. Miller-Meeks.................. No
Mr. Swalwell................................... Aye Mrs. Harshbarger................... No
Ms. Titus...................................... Aye Mr. Clyde.......................... No
Mrs. Watson Coleman............................ Aye Mr. Gimenez........................ Aye
Miss Rice (NY)................................. Aye Mr. LaTurner....................... No
Mrs. Demings................................... Aye Mr. Meijer......................... No
Ms. Barragan................................... Aye Mrs. Cammack....................... No
Mr. Gottheimer................................. Aye Mr. Pfluger........................ No
Mrs. Luria..................................... Aye Mr. Garbarino...................... Aye
Mr. Malinowski................................. Aye
Mr. Torres (NY)................................ Aye
Mr. Thompson (MS), Chairman.................... Aye
----------------------------------------------------------------------------------------------------------------
3. An amendment to the amendment in the nature of a
substitute offered by Mr. Katko of New York to limit
the applicability of the conversion of the TSA
workforce to title 5 to certain TSA frontline
employees. The amendment failed by a recorded vote of 9
ayes and 23 noes (Rollcall No. 3).
Committee Record Vote No. 3
Katko Amendment No. 2 to Thompson (MS) Amendment in the Nature of a Substitute to H.R. 903
Failed: 9 ayes to 23 noes
----------------------------------------------------------------------------------------------------------------
Majority Members Vote Minority Members Vote
----------------------------------------------------------------------------------------------------------------
Ms. Jackson Lee................................ No Mr. Katko.......................... Aye
Mr. Langevin................................... No Mr. McCaul......................... ............
Mr. Payne...................................... No Mr. Higgins (LA)................... ............
Mr. Correa..................................... No Mr. Guest.......................... Aye
Ms. Slotkin.................................... No Mr. Bishop (NC).................... ............
Mr. Cleaver.................................... No Mr. Van Drew....................... No
Mr. Green (TX)................................. No Mr. Norman......................... No
Ms. Clarke (NY)................................ No Mrs. Miller-Meeks.................. Aye
Mr. Swalwell................................... No Mrs. Harshbarger................... No
Ms. Titus...................................... No Mr. Clyde.......................... Aye
Mrs. Watson Coleman............................ No Mr. Gimenez........................ Aye
Miss Rice (NY)................................. No Mr. LaTurner....................... Aye
Mrs. Demings................................... No Mr. Meijer......................... Aye
Ms. Barragan................................... No Mrs. Cammack....................... Aye
Mr. Gottheimer................................. No Mr. Pfluger........................ Aye
Mrs. Luria..................................... No Mr. Garbarino...................... No
Mr. Malinowski................................. No
Mr. Torres (NY)................................ No
Mr. Thompson (MS), Chairman.................... No
----------------------------------------------------------------------------------------------------------------
4. An amendment to the amendment in the nature of a
substitute offered by Mrs. Cammack of Florida to create
a rule of construction that nothing in the Act shall
limit the TSA Administrator's authority to impose new,
or change existing, security screening procedures or
requirements and exempt such procedures or requirements
from any collective bargaining. The amendment failed by
a recorded vote of 11 ayes and 21 noes (Rollcall No.
4).
Committee Record Vote No. 4
Cammack Amendment to Thompson (MS) Amendment in the Nature of a Substitute to H.R. 903
Failed: 11 ayes to 21 noes
----------------------------------------------------------------------------------------------------------------
Majority Members Vote Minority Members Vote
----------------------------------------------------------------------------------------------------------------
Ms. Jackson Lee................................ No Mr. Katko.......................... Aye
Mr. Langevin................................... No Mr. McCaul......................... Aye
Mr. Payne...................................... No Mr. Higgins (LA)................... ............
Mr. Correa..................................... No Mr. Guest.......................... Aye
Ms. Slotkin.................................... No Mr. Bishop (NC).................... ............
Mr. Cleaver.................................... No Mr. Van Drew....................... No
Mr. Green (TX)................................. No Mr. Norman......................... Aye
Ms. Clarke (NY)................................ No Mrs. Miller-Meeks.................. ............
Mr. Swalwell................................... No Mrs. Harshbarger................... Aye
Ms. Titus...................................... No Mr. Clyde.......................... Aye
Mrs. Watson Coleman............................ No Mr. Gimenez........................ Aye
Miss Rice (NY)................................. No Mr. LaTurner....................... Aye
Mrs. Demings................................... No Mr. Meijer......................... Aye
Ms. Barragan................................... No Mrs. Cammack....................... Aye
Mr. Gottheimer................................. No Mr. Pfluger........................ Aye
Mrs. Luria..................................... No Mr. Garbarino...................... No
Mr. Malinowski................................. No
Mr. Torres (NY)................................ No
Mr. Thompson (MS), Chairman.................... No
----------------------------------------------------------------------------------------------------------------
5. An amendment to the amendment in the nature of a
substitute offered by Mr. Guest of Mississippi to
sunset the Act at the end of fiscal year 2022 if
sufficient funds have not been specifically
appropriated to carry out the Act's requirements. The
amendment failed by a recorded vote of 11 ayes and 20
noes (Rollcall No. 5).
Committee Record Vote No. 5
Guest Amendment to Thompson (MS) Amendment in the Nature of a Substitute to H.R. 903
Failed: 11 ayes to 20 noes
----------------------------------------------------------------------------------------------------------------
Majority Members Vote Minority Members Vote
----------------------------------------------------------------------------------------------------------------
Ms. Jackson Lee................................ No Mr. Katko.......................... Aye
Mr. Langevin................................... No Mr. McCaul......................... Aye
Mr. Payne...................................... No Mr. Higgins (LA)................... ............
Mr. Correa..................................... No Mr. Guest.......................... Aye
Ms. Slotkin.................................... No Mr. Bishop (NC).................... ............
Mr. Cleaver.................................... No Mr. Van Drew....................... No
Mr. Green (TX)................................. No Mr. Norman......................... ............
Ms. Clarke (NY)................................ No Mrs. Miller-Meeks.................. Aye
Mr. Swalwell................................... ............ Mrs. Harshbarger................... Aye
Ms. Titus...................................... No Mr. Clyde.......................... Aye
Mrs. Watson Coleman............................ No Mr. Gimenez........................ Aye
Miss Rice (NY)................................. No Mr. LaTurner....................... Aye
Mrs. Demings................................... No Mr. Meijer......................... Aye
Ms. Barragan................................... No Mrs. Cammack....................... Aye
Mr. Gottheimer................................. No Mr. Pfluger........................ Aye
Mrs. Luria..................................... No Mr. Garbarino...................... No
Mr. Malinowski................................. No
Mr. Torres (NY)................................ No
Mr. Thompson (MS), Chairman.................... No
----------------------------------------------------------------------------------------------------------------
6. An amendment to the amendment in the nature of a
substitute offered by Mr. Gimenez of Florida to limit
the use of DHS appropriations to carry out the Act's
requirements unless specifically appropriated to do so.
The amendment failed by a recorded vote of 11 ayes and
19 noes (Rollcall No. 6).
Committee Record Vote No. 6
Gimenez Amendment to Thompson (MS) Amendment in the Nature of a Substitute to H.R. 903
Failed: 11 ayes to 19 noes
----------------------------------------------------------------------------------------------------------------
Majority Members Vote Minority Members Vote
----------------------------------------------------------------------------------------------------------------
Ms. Jackson Lee................................ No Mr. Katko.......................... Aye
Mr. Langevin................................... No Mr. McCaul......................... Aye
Mr. Payne...................................... No Mr. Higgins (LA)................... ............
Mr. Correa..................................... No Mr. Guest.......................... Aye
Ms. Slotkin.................................... No Mr. Bishop (NC).................... ............
Mr. Cleaver.................................... No Mr. Van Drew....................... No
Mr. Green (TX)................................. No Mr. Norman......................... ............
Ms. Clarke (NY)................................ No Mrs. Miller-Meeks.................. Aye
Mr. Swalwell................................... ............ Mrs. Harshbarger................... Aye
Ms. Titus...................................... No Mr. Clyde.......................... Aye
Mrs. Watson Coleman............................ No Mr. Gimenez........................ Aye
Miss Rice (NY)................................. ............ Mr. LaTurner....................... Aye
Mrs. Demings................................... No Mr. Meijer......................... Aye
Ms. Barragan................................... No Mrs. Cammack....................... Aye
Mr. Gottheimer................................. No Mr. Pfluger........................ Aye
Mrs. Luria..................................... No Mr. Garbarino...................... No
Mr. Malinowski................................. No
Mr. Torres (NY)................................ No
Mr. Thompson (MS), Chairman.................... No
----------------------------------------------------------------------------------------------------------------
7. A motion by Mr. Thompson of Mississippi to
favorably report H.R. 903, as amended, was agreed to by
a recorded vote of 19 ayes and 11 noes (Rollcall No.
7).
Committee Record Vote No. 7
Thompson (MS) Motion to Favorably Report H.R. 903, as amended
Failed: 19 ayes to 11 noes
----------------------------------------------------------------------------------------------------------------
Majority Members Vote Minority Members Vote
----------------------------------------------------------------------------------------------------------------
Ms. Jackson Lee................................ Aye Mr. Katko.......................... No
Mr. Langevin................................... Aye Mr. McCaul......................... No
Mr. Payne...................................... Aye Mr. Higgins (LA)................... ............
Mr. Correa..................................... Aye Mr. Guest.......................... No
Ms. Slotkin.................................... Aye Mr. Bishop (NC).................... ............
Mr. Cleaver.................................... Aye Mr. Van Drew....................... Aye
Mr. Green (TX)................................. Aye Mr. Norman......................... ............
Ms. Clarke (NY)................................ Aye Mrs. Miller-Meeks.................. No
Mr. Swalwell................................... ............ Mrs. Harshbarger................... No
Ms. Titus...................................... Aye Mr. Clyde.......................... No
Mrs. Watson Coleman............................ Aye Mr. Gimenez........................ No
Miss Rice (NY)................................. ............ Mr. LaTurner....................... No
Mrs. Demings................................... Aye Mr. Meijer......................... No
Ms. Barragan................................... Aye Mrs. Cammack....................... No
Mr. Gottheimer................................. Aye Mr. Pfluger........................ No
Mrs. Luria..................................... Aye Mr. Garbarino...................... Aye
Mr. Malinowski................................. Aye
Mr. Torres (NY)................................ Aye
Mr. Thompson (MS), Chairman.................... Aye
----------------------------------------------------------------------------------------------------------------
Committee Oversight Findings
In compliance with clause 3(c)(1) of rule XIII, the
Committee advises that the findings and recommendations of the
Committee, based on oversight activities under clause 2(b)(1)
of rule X, are incorporated in the descriptive portions of this
report.
Correspondence with Other Committees
House of Representatives,
Committee on Oversight and Reform,
Washington, DC, May 4, 2022.
Hon. Bennie G. Thompson,
Chairman, Committee on Homeland Security,
House of Representatives, Washington, DC.
Dear Chairman Thompson: I write concerning H.R. 903, the
``Rights for the TSA Workforce Act.'' This bill contains
provisions within the jurisdiction of the Committee on
Oversight and Reform. As a result of your having consulted with
me concerning the provisions of the bill that fall within our
Rule X jurisdiction, I agree to forgo consideration of the
bill, so the bill may proceed expeditiously to the House floor.
The Committee takes this action with our mutual
understanding that by foregoing consideration of H.R. 903 we do
not waive any jurisdiction over the subject matter contained in
this or similar legislation, and we will be appropriately
consulted and involved as the bill or similar legislation moves
forward so we may address any remaining issues within our Rule
X jurisdiction. Further, I request your support for the
appointment of conferees from the Committee on Oversight and
Reform during any House-Senate conference on this or related
legislation.
Finally, I would appreciate a response confirming this
understanding and ask that a copy of our exchange of letters on
this matter be included in the bill report filed by the
Committee on Homeland Security as well as in the Congressional
Record during floor consideration thereof.
Sincerely,
Carolyn B. Maloney,
Chairwoman.
------
House of Representatives,
Committee on Homeland Security,
Washington, DC, May 4, 2022.
Hon. Carolyn B. Maloney,
Chairman, Committee on Oversight and Reform,
House of Representatives, Washington, DC.
Dear Chairwoman Maloney: Thank you for your letter
regarding H.R. 903, the ``Rights for the TSA Workforce Act of
2021.'' I recognize that the Committee on Oversight and Reform
has a jurisdictional interest in H.R. 903, and I appreciate
your effort to allow this bill to be considered on the House
floor.
I concur with you that forgoing action on the bill does not
in any way prejudice the Committee on Oversight and Reform with
respect to its jurisdictional prerogatives on this bill or
similar legislation in the future, and I would support your
effort to seek appointment of an appropriate number of
conferees to any House-Senate conference involving this
legislation.
I will include our letters on H.R. 903 in the Committee
report on this measure and in the Congressional Record during
floor consideration of this bill. I look forward to working
with you on this legislation and other matters of great
importance to this Nation.
Sincerely,
Bennie G. Thompson,
Chairman.
Congressional Budget Office Estimate, New Budget Authority, Entitlement
Authority, and Tax Expenditures
With respect to the requirements of clause 3(c)(2) of rule
XIII and section 308(a) of the Congressional Budget Act of
1974, and with respect to the requirements of clause 3(c)(3) of
rule XIII and section 402 of the Congressional Budget Act of
1974, the Committee has requested but not received from the
Director of the Congressional Budget Office a statement as to
whether this bill contains any new budget authority, spending
authority, credit authority, or an increase or decrease in
revenues or tax expenditures.
Federal Mandates Statement
An estimate of Federal mandates prepared by the Director of
the Congressional Budget Office pursuant to section 423 of the
Unfunded Mandates Reform Act was not made available to the
Committee in time for the filing of this report. The Chairman
of the Committee shall cause such estimate to be printed in the
Congressional Record upon its receipt by the Committee.
Duplicative Federal Programs
Pursuant to clause 3(c) of rule XIII, the Committee finds
that H.R. 903 does not contain any provision that establishes
or reauthorizes a program known to be duplicative of another
Federal program.
Statement of General Performance Goals and Objectives
Pursuant to clause 3(c)(4) of rule XIII, the objective of
H.R. 903 is to improve the workplace rights, protections, and
benefits applicable to TSA personnel by applying the personnel
system of title 5 of the U.S. Code to TSA employees.
Congressional Earmarks, Limited Tax Benefits, and Limited Tariff
Benefits
In compliance with rule XXI, this bill, as reported,
contains no congressional earmarks, limited tax benefits, or
limited tariff benefits as defined in clause 9(d), 9(e), or
9(f) of rule XXI.
Advisory Committee Statement
No advisory committees within the meaning of section 5(b)
of the Federal Advisory Committee Act were created by this
legislation.
Applicability to Legislative Branch
The Committee finds that H.R. 903 does not relate to the
terms and conditions of employment or access to public services
or accommodations within the meaning of section 102(b)(3) of
the Congressional Accountability Act.
Section-by-Section Analysis of the Legislation
Section 1. Short Title.
This section states that the Act may be cited as the
``Rights for the Transportation Security Administration
Workforce Act of 2021'' or the ``Rights for the TSA Workforce
Act of 2021''.
Sec. 2. Definitions.
This section provides definitions for ``adjusted basic
pay,'' ``Administrator,'' ``appropriate congressional
committees,'' ``at-risk employee,'' ``conversion date,''
``covered employee,'' ``covered position,'' ``COVID-19 national
emergency,'' ``employee,'' ``Secretary,'' ``TSA personnel
management system,'' ``TSA,'' and ``2019 Determination.''
Sec. 3. Conversion of TSA Personnel.
This section requires that, as of the date of enactment,
any TSA personnel management system in use and any TSA
personnel management policy, letter, guideline, or directive
may not be modified; no new TSA personnel management policy,
letter, guideline, or directive may be established; and any
authority to establish or adjust a human resources management
system under chapter 97 of title 5, U.S. Code, shall terminate.
Exceptions are provided to allow for annual adjustments to pay
schedules and locality-based payments and to allow for a new
policy needed to resolve a matter not specifically addressed in
existing policy, if the Secretary provides an explanation of
its necessity to the appropriate congressional committees
within 7 days of issuance. An exception is also provided to
allow modifications to or establishment of any TSA personnel
management policy, letter, guideline, or directive related to
an emerging threat to transportation security, including
national emergencies or disasters and public health threats to
transportation security, until TSA converts to title 5. The
Secretary must notify appropriate congressional committees of
any such action with an explanation of its necessity within 7
days.
This section also requires that any TSA personnel
management system in use and any TSA personnel management
policy, letter, guideline, or directive in effect on the day
before enactment shall remain in effect until the conversion
date.
It states that not later than 90 days after enactment,
chapters 71 and 77 of title 5, U.S. code, shall apply to TSA
employees carrying out screening functions under section 44901
of title 49, U.S. code, and any policy, letter, guideline, or
directive issued under section 111(d) of the Aviation and
Transportation Security Act related to matters otherwise
covered by chapters 71 and 77 shall cease to be in effect.
It states that, as of the date determined by the DHS
Secretary but in no event later than December 31, 2022, the TSA
personnel management system shall cease to be in effect;
section 114(n) of title 49, U.S. Code, and section 111(d) of
the Aviation and Transportation Security Act are repealed; any
TSA personnel management policy, letter, guideline and
directive, including the 2019 Determination on collective
bargaining, shall cease to be effective; any human resources
management system established or adjusted under chapter 97 of
title 5, U.S. Code, with respect to TSA employees or positions
shall cease be effective; and TSA employees and positions shall
be subject to the provisions of title 5, U.S. Code.
This section also requires that, not later than 180 days
after enactment or by December 31, 2022 (whichever is earlier),
the Office of Personnel Management establish a position series
and classification standard for TSA positions including
Transportation Security Officer, Federal Air Marshal, and
Transportation Security Inspector. Additionally, the Department
of Agriculture's National Finance Center must make necessary
changes to its financial and human resources management systems
to ensure payroll, leave, and other personnel processing
systems for TSA personnel are commensurate with chapter 53 of
title 5, U.S. Code, and provide necessary functions.
Finally, this section provides safeguards on grievances and
appeals so that each covered employee with a grievance or
appeal pending within TSA on the date of enactment or initiated
during the transition period shall have the opportunity to have
such grievance or appeal removed to proceedings pursuant to
title 5, U.S. Code, or continued within TSA. The Administrator
may consider and finally adjudicate any grievance or appeal
continued within TSA, and any appeal or grievance that is not
so adjudicated shall be preserved and all timelines tolled
until the rights afforded by application of chapters 71 and 77
of title 5, U.S. Code, are made available.
Sec. 4. Transition Rules.
This section sets forth that all covered employees
converted from a TSA personnel management system to the
provisions of title 5, U.S. Code, shall not be subject to any
reduction in either the rate of adjusted basic pay or law
enforcement availability pay. Further, such employees shall be
credited for years of service in a specific pay band under a
TSA personnel management system as if the employee had served
in an equivalent General Schedule position at the same grade,
for purposes of determining the appropriate step within a grade
at which to establish the employee's converted rate of pay.
This section also requires that, for purposes of
determining a covered employee's average pay to calculate the
employee's retirement annuity for any covered employee who
retires within 3 years of the conversion date, the higher of
the employee's rate of basic pay on the first date of the pay
period following the conversion or the amount determined
consistent with sections 8331(4) or 8401(3) of title 5, U.S.
Code, shall be used. Additionally, a Federal Air Marshal or
criminal investigator hired prior to the date of enactment may
be eligible for premium pay up to the maximum level allowed by
the Administrator prior to the date of enactment, and the
Office of Personnel Management shall recognize such premium pay
as fully creditable for purposes of calculating pay and
retirement benefits.
Next, this section requires that, following the application
of chapter 71 of title 5, U.S. Code, full- and part-time non-
supervisory TSA personnel carrying out screening functions
under section 44901 of title 49, U.S. Code, shall remain
eligible to form a collective bargaining unit. It also requires
that the Secretary take any actions necessary to ensure that,
for each covered employee as of the conversion date, any annual
leave, sick leave, or other paid leave accrued, accumulated, or
otherwise available to an employee immediately before the
conversion date shall remain available to the employee until
used, and that part-time personnel carrying out screening
functions under section 44901 of title 49, U.S. Code, continue
to pay Federal Employees Health Benefits premiums on the same
basis as full-time TSA employees.
Moreover, this section provides that the TSA Administrator
may provide certain benefits that exceed those otherwise
provided under title 5, U.S. Code, subject to negotiations with
the exclusive representative of full- and part-time non-
supervisory TSA personnel carrying out screening functions
under section 44901 of title 49, U.S. Code. Specifically, the
Administrator may provide leave benefits that exceed those
otherwise provided under chapter 63 of title 5; pay that
exceeds that otherwise provided under chapter 55 of title 5;
and set payable rates and conditions for the payment of
incentives and bonuses that exceed those otherwise provided
under sections 5753 and 5754 of title 5.
It allows for local level bargaining and agreements on
issues mutually agreed upon by the exclusive representative and
the TSA Personnel Authorities. Lastly, it ensures the current
collective bargain agreement in effect at the time of enactment
shall remain in effect until the effective date of a new
collective bargaining agreement unless the Administrator and
exclusive representative mutually agree to revisions.
Sec. 5. Consultation Requirement.
This section requires that beginning on the date chapter 71
of title 5, U.S. Code, begins to apply to covered employees,
the labor organization certified by the Federal Labor Relations
Authority on June 29, 2011, or any successor labor
organization, shall be treated as the exclusive representative
of full- and part-time non-supervisory TSA personnel carrying
out screening functions under section 44901 of title 49, U.S.
Code, and shall be the exclusive representative for such
personnel under chapter 71 of title 5. Nothing in this
subsection shall be construed to prevent covered employees from
selecting an exclusive representative other than the labor
organization described for purposes of collective bargaining
under chapter 71. This section also provides that collective
bargaining for any unit of covered employees shall occur at the
national level but may be supplemented by mutual consent of the
parties by local level bargaining and local level agreements.
Further, any collective bargaining agreement covering such
personnel in effect on the date of enactment shall remain in
effect until a collective bargaining agreement is entered into
under chapter 71, unless the Administrator and exclusive
representative mutually agree to revisions to such agreement.
This section also requires that, not later than 7 days
after the date of enactment, the Secretary shall consult with
the exclusive representative under chapter 71 of title 5, U.S.
Code, on the formulation of plans and deadlines to carry out
the conversion of full- and part-time non-supervisory TSA
personnel carrying out screening functions under section 44901
of title 49, U.S. Code. Prior to the date chapter 71 begins to
apply under this Act, the Secretary shall provide in writing to
such exclusive representative the plans for how the Secretary
intends to carry out the conversion of such personnel under
this Act, including with respect to the anticipated conversion
date and measures to ensure compliance with sections 3 and 4 of
this Act. If the exclusive representative presents any views or
recommendations, the Secretary shall consider them before
taking final action on any matters they cover and provide the
exclusive representative a written statement of the reasons for
the final actions to be taken.
Sec. 6. No Right to Strike.
This section clarifies that that this Act does not repeal
or otherwise affect--or authorize any activity which is not
permitted under--section 1918 of title 18, U.S. Code, relating
to disloyalty and asserting the right to strike against the
Government, or section 7311 of title 5, U.S. Code, relating to
loyalty and striking.
Sec. 7. Proposal on Hiring and Contracting Restrictions.
This section requires the Secretary of Homeland Security to
submit to the appropriate congressional committees not later
than 1 year after enactment a proposal to uniformly apply, for
the purposes of hiring and for authorizing or entering into any
contract for service, the restrictions in section 70105(c) of
title 46, U.S. Code, and section 44936 of title 49, U.S. Code.
Sec. 8. Comptroller General Reviews.
This section requires the Comptroller General to report to
Congress within 1 year of enactment on TSA's efforts regarding
recruitment, including efforts relating to veterans, members of
the Armed Forces, and their dependents. The report must include
recommendations regarding how TSA may improve such efforts.
Additionally, not later than 60 days after the conversion
date, the Comptroller General must commence a review of the
implementation of this Act, and the Comptroller General must
submit a report to Congress on its review no later than 1 year
after the conversion date.
Sec. 9. Sense of Congress.
This section provides the sense of Congress that TSA's
personnel system provides insufficient benefits and workplace
protections to its workforce, that TSA's workforce should be
provided protections and benefits under title 5, U.S. Code, and
that the provision of these protections and benefits should not
result in a reduction of pay or benefits to current TSA
employees.
Sec. 10. Assistance for Federal Air Marshal Service.
This section authorizes the TSA Administrator to
communicate with organizations representing a significant
number of Federal Air Marshals, to the extent provided by law,
to address concerns regarding Federal Air Marshals related to
mental health, suicide rates, morale and recruitment, and any
other personnel issues the Administrator determines
appropriate.
Sec. 11. Prevention and Protection Against Certain Illness.
This section requires the TSA Administrator, in
coordination with the Director of the Centers for Disease
Control and Prevention and the Director of the National
Institute of Allergy and Infectious Diseases, to ensure covered
employees are provided proper guidance regarding prevention and
protections against the COVID-19 national emergency, including
appropriate resources.
Sec. 12. Hazardous Duty Payments.
This section requires the TSA Administrator to provide, not
later than 90 days following the date of enactment, a one-time
bonus payment of $3,000 to each Transportation Security
Officer, Federal Air Marshal, canine handler, or other TSA
employee carrying out duties that require substantial contact
with the public during the COVID-19 national emergency.
Sec. 13. Authorization of Appropriations.
This section authorizes to be appropriated such sums as may
be necessary, to remain available until expended, to carry out
this Act.
Changes in Existing Law Made by the Bill, as Reported
In compliance with clause 3(e) of rule XIII of the Rules of
the House of Representatives, 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 and
existing law in which no change is proposed is shown in roman):
TITLE 49, UNITED STATES CODE
* * * * * * *
SUBTITLE I--DEPARTMENT OF TRANSPORTATION
* * * * * * *
CHAPTER 1--ORGANIZATION
* * * * * * *
Sec. 114. Transportation Security Administration
(a) In General.--The Transportation Security Administration
shall be an administration of the Department of Homeland
Security.
(b) Leadership.--
(1) Head of transportation security administration.--
(A) Appointment.--The head of the
Administration shall be the Administrator of
the Transportation Security Administration
(referred to in this section as the
``Administrator''). The Administrator shall be
appointed by the President, by and with the
advice and consent of the Senate.
(B) Qualifications.--The Administrator must--
(i) be a citizen of the United
States; and
(ii) have experience in a field
directly related to transportation or
security.
(C) Term.--Effective with respect to any
individual appointment by the President, by and
with the advice and consent of the Senate,
after the date of enactment of the TSA
Modernization Act, the term of office of an
individual appointed as the Administrator shall
be 5 years. The term of office of an individual
serving as the Administrator on the date of
enactment of the TSA Modernization Act shall be
5 years beginning on the date that the
Administrator began serving.
(2) Deputy administrator.--
(A) Appointment.--There is established in the
Transportation Security Administration a Deputy
Administrator, who shall assist the
Administrator in the management of the
Transportation Security Administration. The
Deputy Administrator shall be appointed by the
President.
(B) Vacancy.--The Deputy Administrator shall
be Acting Administrator during the absence or
incapacity of the Administrator or during a
vacancy in the office of Administrator.
(C) Qualifications.--The Deputy Administrator
must--
(i) be a citizen of the United
States; and
(ii) have experience in a field
directly related to transportation or
security.
(3) Chief counsel.--
(A) Appointment.--There is established in the
Transportation Security Administration a Chief
Counsel, who shall advise the Administrator and
other senior officials on all legal matters
relating to the responsibilities, functions,
and management of the Transportation Security
Administration.
(B) Qualifications.--The Chief Counsel must
be a citizen of the United States.
(c) Limitation on Ownership of Stocks and Bonds.--The
Administrator may not own stock in or bonds of a transportation
or security enterprise or an enterprise that makes equipment
that could be used for security purposes.
(d) Functions.--The Administrator shall be responsible for
security in all modes of transportation, including--
(1) carrying out chapter 449, relating to civil
aviation security, and related research and development
activities; and
(2) security responsibilities over other modes of
transportation that are exercised by the Department of
Transportation.
(e) Screening Operations.--The Administrator shall--
(1) be responsible for day-to-day Federal security
screening operations for passenger air transportation
and intrastate air transportation under sections 44901
and 44935;
(2) develop standards for the hiring and retention of
security screening personnel;
(3) train and test security screening personnel; and
(4) be responsible for hiring and training personnel
to provide security screening at all airports in the
United States where screening is required under section
44901, in consultation with the Secretary of
Transportation and the heads of other appropriate
Federal agencies and departments.
(f) Additional Duties and Powers.--In addition to carrying
out the functions specified in subsections (d) and (e), the
Administrator shall--
(1) receive, assess, and distribute intelligence
information related to transportation security;
(2) assess threats to transportation;
(3) develop policies, strategies, and plans for
dealing with threats to transportation security;
(4) make other plans related to transportation
security, including coordinating countermeasures with
appropriate departments, agencies, and
instrumentalities of the United States Government;
(5) serve as the primary liaison for transportation
security to the intelligence and law enforcement
communities;
(6) on a day-to-day basis, manage and provide
operational guidance to the field security resources of
the Administration, including Federal Security Managers
as provided by section 44933;
(7) enforce security-related regulations and
requirements;
(8) identify and undertake research and development
activities necessary to enhance transportation
security;
(9) inspect, maintain, and test security facilities,
equipment, and systems;
(10) ensure the adequacy of security measures for the
transportation of cargo;
(11) oversee the implementation, and ensure the
adequacy, of security measures at airports and other
transportation facilities;
(12) require background checks for airport security
screening personnel, individuals with access to secure
areas of airports, and other transportation security
personnel;
(13) work in conjunction with the Administrator of
the Federal Aviation Administration with respect to any
actions or activities that may affect aviation safety
or air carrier operations;
(14) work with the International Civil Aviation
Organization and appropriate aeronautic authorities of
foreign governments under section 44907 to address
security concerns on passenger flights by foreign air
carriers in foreign air transportation;
(15) establish and maintain a National Deployment
Office as required under section 44948 of this title;
and
(16) carry out such other duties, and exercise such
other powers, relating to transportation security as
the Administrator considers appropriate, to the extent
authorized by law.
(g) National Emergency Responsibilities.--
(1) In general.--Subject to the direction and control
of the Secretary of Homeland Security, the
Administrator, during a national emergency, shall have
the following responsibilities:
(A) To coordinate domestic transportation,
including aviation, rail, and other surface
transportation, and maritime transportation
(including port security).
(B) To coordinate and oversee the
transportation-related responsibilities of
other departments and agencies of the Federal
Government other than the Department of Defense
and the military departments.
(C) To coordinate and provide notice to other
departments and agencies of the Federal
Government, and appropriate agencies of State
and local governments, including departments
and agencies for transportation, law
enforcement, and border control, about threats
to transportation.
(D) To carry out such other duties, and
exercise such other powers, relating to
transportation during a national emergency as
the Secretary of Homeland Security shall
prescribe.
(2) Authority of other departments and agencies.--The
authority of the Administrator under this subsection
shall not supersede the authority of any other
department or agency of the Federal Government under
law with respect to transportation or transportation-
related matters, whether or not during a national
emergency.
(3) Circumstances.--The Secretary of Homeland
Security shall prescribe the circumstances constituting
a national emergency for purposes of this subsection.
(h) Management of Security Information.--In consultation with
the Transportation Security Oversight Board, the Administrator
shall--
(1) enter into memoranda of understanding with
Federal agencies or other entities to share or
otherwise cross-check as necessary data on individuals
identified on Federal agency databases who may pose a
risk to transportation or national security;
(2) establish procedures for notifying the
Administrator of the Federal Aviation Administration,
appropriate State and local law enforcement officials,
and airport or airline security officers of the
identity of individuals known to pose, or suspected of
posing, a risk of air piracy or terrorism or a threat
to airline or passenger safety;
(3) in consultation with other appropriate Federal
agencies and air carriers, establish policies and
procedures requiring air carriers--
(A) to use information from government
agencies to identify individuals on passenger
lists who may be a threat to civil aviation or
national security; and
(B) if such an individual is identified,
notify appropriate law enforcement agencies,
prevent the individual from boarding an
aircraft, or take other appropriate action with
respect to that individual; and
(4) consider requiring passenger air carriers to
share passenger lists with appropriate Federal agencies
for the purpose of identifying individuals who may pose
a threat to aviation safety or national security.
(i) View of NTSB.--In taking any action under this section
that could affect safety, the Administrator shall give great
weight to the timely views of the National Transportation
Safety Board.
(j) Acquisitions.--
(1) In general.--The Administrator is authorized--
(A) to acquire (by purchase, lease,
condemnation, or otherwise) such real property,
or any interest therein, within and outside the
continental United States, as the Administrator
considers necessary;
(B) to acquire (by purchase, lease,
condemnation, or otherwise) and to construct,
repair, operate, and maintain such personal
property (including office space and patents),
or any interest therein, within and outside the
continental United States, as the Administrator
considers necessary;
(C) to lease to others such real and personal
property and to provide by contract or
otherwise for necessary facilities for the
welfare of its employees and to acquire,
maintain, and operate equipment for these
facilities;
(D) to acquire services, including such
personal services as the Secretary of Homeland
Security determines necessary, and to acquire
(by purchase, lease, condemnation, or
otherwise) and to construct, repair, operate,
and maintain research and testing sites and
facilities; and
(E) in cooperation with the Administrator of
the Federal Aviation Administration, to utilize
the research and development facilities of the
Federal Aviation Administration.
(2) Title.--Title to any property or interest therein
acquired pursuant to this subsection shall be held by
the Government of the United States.
(k) Transfers of Funds.--The Administrator is authorized to
accept transfers of unobligated balances and unexpended
balances of funds appropriated to other Federal agencies (as
such term is defined in section 551(1) of title 5) to carry out
functions assigned by law to the Administrator.
(l) Regulations.--
(1) In general.--The Administrator is authorized to
issue, rescind, and revise such regulations as are
necessary to carry out the functions of the
Administration.
(2) Emergency procedures.--
(A) In general.--Notwithstanding any other
provision of law or executive order (including
an executive order requiring a cost-benefit
analysis), if the Administrator determines that
a regulation or security directive must be
issued immediately in order to protect
transportation security, the Administrator
shall issue the regulation or security
directive without providing notice or an
opportunity for comment and without prior
approval of the Secretary.
(B) Review by transportation security
oversight board.--Any regulation or security
directive issued under this paragraph shall be
subject to review by the Transportation
Security Oversight Board established under
section 115. Any regulation or security
directive issued under this paragraph shall
remain effective for a period not to exceed 90
days unless ratified or disapproved by the
Board or rescinded by the Administrator.
(3) Factors to consider.--In determining whether to
issue, rescind, or revise a regulation under this
section, the Administrator shall consider, as a factor
in the final determination, whether the costs of the
regulation are excessive in relation to the enhancement
of security the regulation will provide. The
Administrator may waive requirements for an analysis
that estimates the number of lives that will be saved
by the regulation and the monetary value of such lives
if the Administrator determines that it is not feasible
to make such an estimate.
(4) Airworthiness objections by faa.--
(A) In general.--The Administrator shall not
take an aviation security action under this
title if the Administrator of the Federal
Aviation Administration notifies the
Administrator that the action could adversely
affect the airworthiness of an aircraft.
(B) Review by secretary.--Notwithstanding
subparagraph (A), the Administrator may take
such an action, after receiving a notification
concerning the action from the Administrator of
the Federal Aviation Administration under
subparagraph (A), if the Secretary of
Transportation subsequently approves the
action.
(m) Personnel and Services; Cooperation by Administrator.--
(1) Authority of administrator.--In carrying out the
functions of the Administration, the Administrator
shall have the same authority as is provided to the
Administrator of the Federal Aviation Administration
under subsections (l) and (m) of section 106.
(2) Authority of agency heads.--The head of a Federal
agency shall have the same authority to provide
services, supplies, equipment, personnel, and
facilities to the Administrator as the head has to
provide services, supplies, equipment, personnel, and
facilities to the Administrator of the Federal Aviation
Administration under section 106(m).
[(n) Personnel Management System.--
[(1) In general.--The personnel management system
established by the Administrator of the Federal
Aviation Administration under section 40122 shall apply
to employees of the Transportation Security
Administration, or, subject to the requirements of such
section, the Administrator may make such modifications
to the personnel management system with respect to such
employees as the Administrator considers appropriate,
such as adopting aspects of other personnel systems of
the Department of Homeland Security.
[(2) Meritorious executive or distinguished executive
rank awards.--Notwithstanding section 40122(g)(2) of
this title, the applicable sections of title 5 shall
apply to the Transportation Security Administration
personnel management system, except that--
[(A) for purposes of applying such provisions
to the personnel management system--
[(i) the term ``agency'' means the
Department of Homeland Security;
[(ii) the term ``senior executive''
means a Transportation Security
Administration executive serving on a
Transportation Security Executive
Service appointment;
[(iii) the term ``career appointee''
means a Transportation Security
Administration executive serving on a
career Transportation Security
Executive Service appointment; and
[(iv) The term ``senior career
employee'' means a Transportation
Security Administration employee
covered by the Transportation Security
Administration Core Compensation System
at the L or M pay band;
[(B) receipt by a career appointee or a
senior career employee of the rank of
Meritorious Executive or Meritorious Senior
Professional entitles the individual to a lump-
sum payment of an amount equal to 20 percent of
annual basic pay, which shall be in addition to
the basic pay paid under the applicable
Transportation Security Administration pay
system; and
[(C) receipt by a career appointee or a
senior career employee of the rank of
Distinguished Executive or Distinguished Senior
Professional entitles the individual to a lump-
sum payment of an amount equal to 35 percent of
annual basic pay, which shall be in addition to
the basic pay paid under the applicable
Transportation Security Administration pay
system.
[(3) Definition of applicable sections of title 5.--
In this subsection, the term ``applicable sections of
title 5'' means--
[(A) subsections (b), (c) and (d) of section
4507 of title 5; and
[(B) subsections (b) and (c) of section 4507a
of title 5.]
(o) Authority of Inspector General.--The Transportation
Security Administration shall be subject to the Inspector
General Act of 1978 (5 U.S.C. App.) and other laws relating to
the authority of the Inspector General of the Department of
Homeland Security.
(p) Law Enforcement Powers.--
(1) In general.--The Administrator may designate an
employee of the Transportation Security Administration
or other Federal agency to serve as a law enforcement
officer.
(2) Powers.--While engaged in official duties of the
Administration as required to fulfill the
responsibilities under this section, a law enforcement
officer designated under paragraph (1) may--
(A) carry a firearm;
(B) make an arrest without a warrant for any
offense against the United States committed in
the presence of the officer, or for any felony
cognizable under the laws of the United States
if the officer has probable cause to believe
that the person to be arrested has committed or
is committing the felony; and
(C) seek and execute warrants for arrest or
seizure of evidence issued under the authority
of the United States upon probable cause that a
violation has been committed.
(3) Guidelines on exercise of authority.--The
authority provided by this subsection shall be
exercised in accordance with guidelines prescribed by
the Administrator, in consultation with the Attorney
General of the United States, and shall include
adherence to the Attorney General's policy on use of
deadly force.
(4) Revocation or suspension of authority.--The
powers authorized by this subsection may be rescinded
or suspended should the Attorney General determine that
the Administrator has not complied with the guidelines
prescribed in paragraph (3) and conveys the
determination in writing to the Secretary of Homeland
Security and the Administrator.
(q) Authority To Exempt.--The Administrator may grant an
exemption from a regulation prescribed in carrying out this
section if the Administrator determines that the exemption is
in the public interest.
(r) Nondisclosure of Security Activities.--
(1) In general.--Notwithstanding section 552 of title
5, the Administrator shall prescribe regulations
prohibiting the disclosure of information obtained or
developed in carrying out security under authority of
the Aviation and Transportation Security Act (Public
Law 107-71) or under chapter 449 of this title if the
Administrator decides that disclosing the information
would--
(A) be an unwarranted invasion of personal
privacy;
(B) reveal a trade secret or privileged or
confidential commercial or financial
information; or
(C) be detrimental to the security of
transportation.
(2) Availability of information to congress.--
Paragraph (1) does not authorize information to be
withheld from a committee of Congress authorized to
have the information.
(3) Limitation on transferability of duties.--Except
as otherwise provided by law, the Administrator may not
transfer a duty or power under this subsection to
another department, agency, or instrumentality of the
United States.
(4) Limitations.--Nothing in this subsection, or any
other provision of law, shall be construed to authorize
the designation of information as sensitive security
information (as defined in section 1520.5 of title 49,
Code of Federal Regulations)--
(A) to conceal a violation of law,
inefficiency, or administrative error;
(B) to prevent embarrassment to a person,
organization, or agency;
(C) to restrain competition; or
(D) to prevent or delay the release of
information that does not require protection in
the interest of transportation security,
including basic scientific research information
not clearly related to transportation security.
(s) Transportation Security Strategic Planning.--
(1) In general.--The Secretary of Homeland Security
shall develop, prepare, implement, and update, as
needed--
(A) a National Strategy for Transportation
Security; and
(B) transportation modal security plans
addressing security risks, including threats,
vulnerabilities, and consequences, for
aviation, railroad, ferry, highway, maritime,
pipeline, public transportation, over-the-road
bus, and other transportation infrastructure
assets.
(2) Role of secretary of transportation.--The
Secretary of Homeland Security shall work jointly with
the Secretary of Transportation in developing,
revising, and updating the documents required by
paragraph (1).
(3) Contents of national strategy for transportation
security.--The National Strategy for Transportation
Security shall include the following:
(A) An identification and evaluation of the
transportation assets in the United States
that, in the interests of national security and
commerce, must be protected from attack or
disruption by terrorist or other hostile
forces, including modal security plans for
aviation, bridge and tunnel, commuter rail and
ferry, highway, maritime, pipeline, rail, mass
transit, over-the-road bus, and other public
transportation infrastructure assets that could
be at risk of such an attack or disruption.
(B) The development of risk-based priorities,
based on risk assessments conducted or received
by the Secretary of Homeland Security
(including assessments conducted under the
Implementing Recommendations of the 9/11
Commission Act of 2007) across all
transportation modes and realistic deadlines
for addressing security needs associated with
those assets referred to in subparagraph (A).
(C) The most appropriate, practical, and
cost-effective means of defending those assets
against threats to their security.
(D) A forward-looking strategic plan that
sets forth the agreed upon roles and missions
of Federal, State, regional, local, and tribal
authorities and establishes mechanisms for
encouraging cooperation and participation by
private sector entities, including nonprofit
employee labor organizations, in the
implementation of such plan.
(E) A comprehensive delineation of
prevention, response, and recovery
responsibilities and issues regarding
threatened and executed acts of terrorism
within the United States and threatened and
executed acts of terrorism outside the United
States to the extent such acts affect United
States transportation systems.
(F) A prioritization of research and
development objectives that support
transportation security needs, giving a higher
priority to research and development directed
toward protecting vital transportation assets.
Transportation security research and
development projects shall be based, to the
extent practicable, on such prioritization.
Nothing in the preceding sentence shall be
construed to require the termination of any
research or development project initiated by
the Secretary of Homeland Security or the
Secretary of Transportation before the date of
enactment of the Implementing Recommendations
of the 9/11 Commission Act of 2007.
(G) A 3- and 10-year budget for Federal
transportation security programs that will
achieve the priorities of the National Strategy
for Transportation Security.
(H) Methods for linking the individual
transportation modal security plans and the
programs contained therein, and a plan for
addressing the security needs of intermodal
transportation.
(I) Transportation modal security plans
described in paragraph (1)(B), including
operational recovery plans to expedite, to the
maximum extent practicable, the return to
operation of an adversely affected
transportation system following a major
terrorist attack on that system or other
incident. These plans shall be coordinated with
the resumption of trade protocols required
under section 202 of the SAFE Port Act (6
U.S.C. 942) and the National Maritime
Transportation Security Plan required under
section 70103(a) of title 46.
(4) Submission of plans.--
(A) In general.--The Secretary of Homeland
Security shall submit the National Strategy for
Transportation Security, including the
transportation modal security plans and any
revisions to the National Strategy for
Transportation Security and the transportation
modal security plans, to appropriate
congressional committees not less frequently
than April 1 of each even-numbered year.
(B) Periodic progress report.--
(i) Requirement for report.--Each
year, in conjunction with the
submission of the budget to Congress
under section 1105(a) of title 31,
United States Code, the Secretary of
Homeland Security shall submit to the
appropriate congressional committees an
assessment of the progress made on
implementing the National Strategy for
Transportation Security, including the
transportation modal security plans.
(ii) Content.--Each progress report
submitted under this subparagraph shall
include, at a minimum, the following:
(I) Recommendations for
improving and implementing the
National Strategy for
Transportation Security and the
transportation modal and
intermodal security plans that
the Secretary of Homeland
Security, in consultation with
the Secretary of
Transportation, considers
appropriate.
(II) An accounting of all
grants for transportation
security, including grants and
contracts for research and
development, awarded by the
Secretary of Homeland Security
in the most recent fiscal year
and a description of how such
grants accomplished the goals
of the National Strategy for
Transportation Security.
(III) An accounting of all--
(aa) funds requested
in the President's
budget submitted
pursuant to section
1105 of title 31 for
the most recent fiscal
year for transportation
security, by mode;
(bb) personnel
working on
transportation security
by mode, including the
number of contractors;
and
(cc) information on
the turnover in the
previous year among
senior staff of the
Department of Homeland
Security, including
component agencies,
working on
transportation security
issues. Such
information shall
include the number of
employees who have
permanently left the
office, agency, or area
in which they worked,
and the amount of time
that they worked for
the Department of
Homeland Security.
(iii) Written explanation of
transportation security activities not
delineated in the national strategy for
transportation security.--At the end of
each fiscal year, the Secretary of
Homeland Security shall submit to the
appropriate congressional committees a
written explanation of any Federal
transportation security activity that
is inconsistent with the National
Strategy for Transportation Security,
including the amount of funds to be
expended for the activity and the
number of personnel involved.
(C) Classified material.--Any part of the
National Strategy for Transportation Security
or the transportation modal security plans that
involve information that is properly classified
under criteria established by Executive order
shall be submitted to the appropriate
congressional committees separately in a
classified format.
(D) Appropriate congressional committees
defined.--In this subsection, the term
``appropriate congressional committees'' means
the Committee on Transportation and
Infrastructure and the Committee on Homeland
Security of the House of Representatives and
the Committee on Commerce, Science, and
Transportation, the Committee on Homeland
Security and Governmental Affairs, and the
Committee on Banking, Housing, and Urban
Affairs of the Senate.
(5) Priority Status.--
(A) In general.--The National Strategy for
Transportation Security shall be the governing
document for Federal transportation security
efforts.
(B) Other plans and reports.--The National
Strategy for Transportation Security shall
include, as an integral part or as an
appendix--
(i) the current National Maritime
Transportation Security Plan under
section 70103 of title 46;
(ii) the report required by section
44938 of this title;
(iii) transportation modal security
plans required under this section;
(iv) the transportation sector
specific plan required under Homeland
Security Presidential Directive-7; and
(v) any other transportation security
plan or report that the Secretary of
Homeland Security determines
appropriate for inclusion.
(6) Coordination.--In carrying out the
responsibilities under this section, the Secretary of
Homeland Security, in coordination with the Secretary
of Transportation, shall consult, as appropriate, with
Federal, State, and local agencies, tribal governments,
private sector entities (including nonprofit employee
labor organizations), institutions of higher learning,
and other entities.
(7) Plan distribution.--The Secretary of Homeland
Security shall make available and appropriately
publicize an unclassified version of the National
Strategy for Transportation Security, including its
component transportation modal security plans, to
Federal, State, regional, local and tribal authorities,
transportation system owners or operators, private
sector stakeholders, including nonprofit employee labor
organizations representing transportation employees,
institutions of higher learning, and other appropriate
entities.
(t) Transportation Security Information Sharing Plan.--
(1) Definitions.--In this subsection:
(A) Appropriate congressional committees.--
The term ``appropriate congressional
committees'' has the meaning given that term in
subsection (s)(4)(E).
(B) Plan.--The term ``Plan'' means the
Transportation Security Information Sharing
Plan established under paragraph (2).
(C) Public and private stakeholders.--The
term ``public and private stakeholders'' means
Federal, State, and local agencies, tribal
governments, and appropriate private entities,
including nonprofit employee labor
organizations representing transportation
employees.
(D) Transportation security information.--The
term ``transportation security information''
means information relating to the risks to
transportation modes, including aviation,
public transportation, railroad, ferry,
highway, maritime, pipeline, and over-the-road
bus transportation, and may include specific
and general intelligence products, as
appropriate.
(2) Establishment of plan.--The Secretary of Homeland
Security, in consultation with the program manager of
the information sharing environment established under
section 1016 of the Intelligence Reform and Terrorism
Prevention Act of 2004 (6 U.S.C. 485), the Secretary of
Transportation, and public and private stakeholders,
shall establish a Transportation Security Information
Sharing Plan. In establishing the Plan, the Secretary
of Homeland Security shall gather input on the
development of the Plan from private and public
stakeholders and the program manager of the information
sharing environment established under section 1016 of
the Intelligence Reform and Terrorism Prevention Act of
2004 (6 U.S.C. 485).
(3) Purpose of plan.--The Plan shall promote sharing
of transportation security information between the
Department of Homeland Security and public and private
stakeholders.
(4) Content of plan.--The Plan shall include--
(A) a description of how intelligence
analysts within the Department of Homeland
Security will coordinate their activities
within the Department and with other Federal,
State, and local agencies, and tribal
governments, including coordination with
existing modal information sharing centers and
the center described in section 1410 of the
Implementing Recommendations of the 9/11
Commission Act of 2007;
(B) the establishment of a point of contact,
which may be a single point of contact within
the Department of Homeland Security, for each
mode of transportation for the sharing of
transportation security information with public
and private stakeholders, including an
explanation and justification to the
appropriate congressional committees if the
point of contact established pursuant to this
subparagraph differs from the agency within the
Department of Homeland Security that has the
primary authority, or has been delegated such
authority by the Secretary of Homeland
Security, to regulate the security of that
transportation mode;
(C) a reasonable deadline by which the Plan
will be implemented; and
(D) a description of resource needs for
fulfilling the Plan.
(5) Coordination with information sharing.--The Plan
shall be--
(A) implemented in coordination, as
appropriate, with the program manager for the
information sharing environment established
under section 1016 of the Intelligence Reform
and Terrorism Prevention Act of 2004 (6 U.S.C.
485); and
(B) consistent with the establishment of the
information sharing environment and any
policies, guidelines, procedures, instructions,
or standards established by the President or
the program manager for the implementation and
management of the information sharing
environment.
(6) Annual report on plan.--The Secretary of Homeland
Security shall annually submit to the appropriate
congressional committees a report containing the Plan.
(7) Security clearances.--The Secretary of Homeland
Security shall, to the greatest extent practicable,
take steps to expedite the security clearances needed
for designated public and private stakeholders to
receive and obtain access to classified information
distributed under this section, as appropriate.
(8) Classification of material.--The Secretary of
Homeland Security, to the greatest extent practicable,
shall provide designated public and private
stakeholders with transportation security information
in an unclassified format.
(u) Enforcement of Regulations and Orders of the Secretary of
Homeland Security.--
(1) Application of subsection.--
(A) In general.--This subsection applies to
the enforcement of regulations prescribed, and
orders issued, by the Secretary of Homeland
Security under a provision of chapter 701 of
title 46 and under a provision of this title
other than a provision of chapter 449 (in this
subsection referred to as an ``applicable
provision of this title'').
(B) Violations of chapter 449.--The penalties
for violations of regulations prescribed and
orders issued by the Secretary of Homeland
Security or the Administrator under chapter 449
of this title are provided under chapter 463 of
this title.
(C) Nonapplication to certain violations.--
(i) Paragraphs (2) through (5) do not
apply to violations of regulations
prescribed, and orders issued, by the
Secretary of Homeland Security under a
provision of this title--
(I) involving the
transportation of personnel or
shipments of materials by
contractors where the
Department of Defense has
assumed control and
responsibility;
(II) by a member of the armed
forces of the United States
when performing official
duties; or
(III) by a civilian employee
of the Department of Defense
when performing official
duties.
(ii) Violations described in
subclause (I), (II), or (III) of clause
(i) shall be subject to penalties as
determined by the Secretary of Defense
or the Secretary of Defense's designee.
(2) Civil penalty.--
(A) In general.--A person is liable to the
United States Government for a civil penalty of
not more than $10,000 for a violation of a
regulation prescribed, or order issued, by the
Secretary of Homeland Security under an
applicable provision of this title.
(B) Repeat violations.--A separate violation
occurs under this paragraph for each day the
violation continues.
(3) Administrative imposition of civil penalties.--
(A) In general.--The Secretary of Homeland
Security may impose a civil penalty for a
violation of a regulation prescribed, or order
issued, under an applicable provision of this
title. The Secretary shall give written notice
of the finding of a violation and the penalty.
(B) Scope of civil action.--In a civil action
to collect a civil penalty imposed by the
Secretary of Homeland Security under this
subsection, a court may not re-examine issues
of liability or the amount of the penalty.
(C) Jurisdiction.--The district courts of the
United States shall have exclusive jurisdiction
of civil actions to collect a civil penalty
imposed by the Secretary of Homeland Security
under this subsection if--
(i) the amount in controversy is more
than--
(I) $400,000, if the
violation was committed by a
person other than an individual
or small business concern; or
(II) $50,000 if the violation
was committed by an individual
or small business concern;
(ii) the action is in rem or another
action in rem based on the same
violation has been brought; or
(iii) another action has been brought
for an injunction based on the same
violation.
(D) Maximum penalty.--The maximum civil
penalty the Secretary of Homeland Security
administratively may impose under this
paragraph is--
(i) $400,000, if the violation was
committed by a person other than an
individual or small business concern;
or
(ii) $50,000, if the violation was
committed by an individual or small
business concern.
(E) Notice and opportunity to request
hearing.--Before imposing a penalty under this
section the Secretary of Homeland Security
shall provide to the person against whom the
penalty is to be imposed--
(i) written notice of the proposed
penalty; and
(ii) the opportunity to request a
hearing on the proposed penalty, if the
Secretary of Homeland Security receives
the request not later than 30 days
after the date on which the person
receives notice.
(4) Compromise and setoff.--
(A) The Secretary of Homeland Security may
compromise the amount of a civil penalty
imposed under this subsection.
(B) The Government may deduct the amount of a
civil penalty imposed or compromised under this
subsection from amounts it owes the person
liable for the penalty.
(5) Investigations and proceedings.--Chapter 461
shall apply to investigations and proceedings brought
under this subsection to the same extent that it
applies to investigations and proceedings brought with
respect to aviation security duties designated to be
carried out by the Secretary of Homeland Security.
(6) Definitions.--In this subsection:
(A) Person.--The term ``person'' does not
include--
(i) the United States Postal Service;
or
(ii) the Department of Defense.
(B) Small business concern.--The term ``small
business concern'' has the meaning given that
term in section 3 of the Small Business Act (15
U.S.C. 632).
(7) Enforcement transparency.--
(A) In general.--The Secretary of Homeland
Security shall--
(i) provide an annual summary to the
public of all enforcement actions taken
by the Secretary under this subsection;
and
(ii) include in each such summary the
docket number of each enforcement
action, the type of alleged violation,
the penalty or penalties proposed, and
the final assessment amount of each
penalty.
(B) Electronic availability.--Each summary
under this paragraph shall be made available to
the public by electronic means.
(C) Relationship to the freedom of
information act and the privacy act.--Nothing
in this subsection shall be construed to
require disclosure of information or records
that are exempt from disclosure under sections
552 or 552a of title 5.
(v) Authorization of Appropriations.--There are authorized to
be appropriated to the Transportation Security Administration
for salaries, operations, and maintenance of the
Administration--
(1) $7,849,247,000 for fiscal year 2019;
(2) $7,888,494,000 for fiscal year 2020; and
(3) $7,917,936,000 for fiscal year 2021.
(w) Leadership and Organization.--
(1) In general.--For each of the areas described in
paragraph (2), the Administrator of the Transportation
Security Administration shall appoint at least 1
individual who shall--
(A) report directly to the Administrator or
the Administrator's designated direct report;
and
(B) be responsible and accountable for that
area.
(2) Areas described.--The areas described in this
paragraph are as follows:
(A) Aviation security operations and
training, including risk-based, adaptive
security--
(i) focused on airport checkpoint and
baggage screening operations;
(ii) workforce training and
development programs; and
(iii) ensuring compliance with
aviation security law, including
regulations, and other specialized
programs designed to secure air
transportation.
(B) Surface transportation security
operations and training, including risk-based,
adaptive security--
(i) focused on accomplishing security
systems assessments;
(ii) reviewing and prioritizing
projects for appropriated surface
transportation security grants;
(iii) operator compliance with
surface transportation security law,
including regulations, and voluntary
industry standards; and
(iv) workforce training and
development programs, and other
specialized programs designed to secure
surface transportation.
(C) Transportation industry engagement and
planning, including the development,
interpretation, promotion, and oversight of a
unified effort regarding risk-based, risk-
reducing security policies and plans (including
strategic planning for future contingencies and
security challenges) between government and
transportation stakeholders, including
airports, domestic and international airlines,
general aviation, air cargo, mass transit and
passenger rail, freight rail, pipeline, highway
and motor carriers, and maritime.
(D) International strategy and operations,
including agency efforts to work with
international partners to secure the global
transportation network.
(E) Trusted and registered traveler programs,
including the management and marketing of the
agency's trusted traveler initiatives,
including the PreCheck Program, and
coordination with trusted traveler programs of
other Department of Homeland Security agencies
and the private sector.
(F) Technology acquisition and deployment,
including the oversight, development, testing,
evaluation, acquisition, deployment, and
maintenance of security technology and other
acquisition programs.
(G) Inspection and compliance, including the
integrity, efficiency and effectiveness of the
agency's workforce, operations, and programs
through objective audits, covert testing,
inspections, criminal investigations, and
regulatory compliance.
(H) Civil rights, liberties, and traveler
engagement, including ensuring that agency
employees and the traveling public are treated
in a fair and lawful manner consistent with
Federal laws and regulations protecting privacy
and prohibiting discrimination and reprisal.
(I) Legislative and public affairs, including
communication and engagement with internal and
external audiences in a timely, accurate, and
transparent manner, and development and
implementation of strategies within the agency
to achieve congressional approval or
authorization of agency programs and policies.
(3) Notification.--The Administrator shall submit to
the appropriate committees of Congress--
(A) not later than 180 days after the date of
enactment of the TSA Modernization Act, a list
of the names of the individuals appointed under
paragraph (1); and
(B) an update of the list not later than 5
days after any new individual is appointed
under paragraph (1).
* * * * * * *
----------
AVIATION AND TRANSPORTATION SECURITY ACT
* * * * * * *
TITLE I--AVIATION SECURITY
* * * * * * *
SEC. 111. TRAINING AND EMPLOYMENT OF SECURITY SCREENING PERSONNEL.
[Subsections (a) and (b) omitted--amends other Acts]
(c) Transition.--The Under Secretary of Transportation for
Security shall complete the full implementation of section
44935 (e), (f), (g), and (h) of title 49, United States Code,
as amended by subsection (a), as soon as is practicable. The
Under Secretary may make or continue such arrangements for the
training of security screeners under that section as the Under
Secretary determines necessary pending full implementation of
that section as so amended.
[(d) Screener Personnel.--
[(1) General authority.--Except as provided in
paragraph (2), and notwithstanding any other provision
of law, the Under Secretary of Transportation for
Security may employ, appoint, discipline, terminate,
and fix the compensation, terms, and conditions of
employment of Federal service for such a number of
individuals as the Under Secretary determines to be
necessary to carry out the screening functions of the
Under Secretary under section 44901 of title 49, United
States Code. The Under Secretary shall establish levels
of compensation and other benefits for individuals so
employed.
[(2) Exceptions.--
[(A) Reemployment.--In carrying out the
functions authorized under paragraph (1), the
Under Secretary shall be subject to the
provisions set forth in chapter 43 of title 38,
United States Code.
[(B) Leave.--The provisions of subchapter V
of chapter 63 of title 5, United States Code,
shall apply to any individual appointed under
paragraph (1) as if such individual were an
employee (within the meaning of subparagraph
(A) of section 6381(1) of such title).]
* * * * * * *
MINORITY VIEWS
When Congress created the Transportation Security
Administration (TSA) with enactment of the Aviation and
Transportation Security Act (ATSA, Pub. L. 107-71), it
recognized the criticality of providing unique authorities to
ensure the agency can carry out its national security mission.
These authorities provide TSA vital flexibility in the
management of its personnel system so it can respond to
evolving threats and best protect the traveling public.
H.R. 903 would repeal the vital workforce flexibilities
enacted under ATSA and move TSA's personnel system under title
5, United States Code. Title 5 strictly governs the pay,
benefits, and collective bargaining rights of most civilian
federal employees. It fails to provide security agencies like
TSA with the necessary flexibility to position their workforce
to meet evolving threats.
Committee Republicans are concerned that moving TSA
employees under title 5 would undermine the agency's ability to
perform its national security mission. According to information
obtained from TSA, H.R. 903 would hinder TSA's ability to
address serious instances of misconduct among the workforce.
Under current law, the agency may exercise one-step removal for
serious offenses such as intentional security breaches, theft,
failure of drug and alcohol tests while on duty, or arrests for
certain criminal offenses. Under H.R. 903, an employee who
knowingly allows guns or explosives through a security
checkpoint would no longer be immediately fired.
H.R. 903 would expand collective bargaining rights for TSA
employees. As a result, security policies needed to protect the
traveling public would be negotiable topics in union
bargaining. Under current law, TSA can impose new security
requirements, such as enhanced passenger screening when
intelligence indicates credible threats. Under this bill, how
those new security requirements are implemented could be
subject to negotiation with the union.
In addition to the impact H.R. 903 could have on aviation
security, Committee Republicans are concerned with how it
proposes to transition the TSA to a fully unionized workforce.
The bill sets the exclusive bargaining agent for the screeners
and requires the TSA to immediately negotiate with them. The
bill does not provide for an intervening union election. The
screener workforce never gets a chance to exercise their
Constitutional right to choose their representation.
Committee Republicans are also concerned that TSA screeners
could lose benefits under this bill. If H.R. 903 becomes law,
screeners will lose the ability to trade shifts with one
another, donate certain accrued leave to their fellow
colleagues, and receive certain incentive pay. Some overtime
pay would be prohibited and career milestone bonuses could no
longer be offered.
The FY 2023 President's Budget request includes $870.9
million to provide needed pay raises and annual increases to
TSA employees. These raises would make screener salaries
commensurate with the salaries of other Department of Homeland
Security (DHS) front-line employees and provide a General
Schedule type step increase. Appropriating funding to increase
front-line TSA pay would be more effective in boosting employee
morale than moving the entire agency into title 5.
In 2019, TSA received a report from the bipartisan Blue
Ribbon Panel on Human Capital Service Delivery. The Panel,
comprised of former officials from both Republican and Democrat
administrations--including the Chief Human Capital Officer for
the Department of Homeland Security under President Barack
Obama--strongly recommended against moving TSA personnel under
title 5. The Panel pointed out that under ATSA, the TSA can pay
its employees more than they can make under title 5.
Finally, Committee Republicans are concerned with the
significant cost to taxpayers should this legislation be
enacted. The Congressional Budget Office estimated that similar
legislation in the 116th Congress, H.R. 1140, would cost $1.77
billion. Committee Republicans object to filing a bill report
for H.R. 903 before receiving a score from the Congressional
Budget Office, which will provide needed insight into how
significantly this legislation would cost the American
taxpayer.
Committee Republicans acknowledge the dedication of the TSA
workforce and the reality that they are chronically among the
lowest paid federal employees. However, moving the agency under
title 5 will create more problems than it solves. Committee
Republicans believe that Congress should appropriate funding to
boost salaries for TSA's front-line workforce.
Rather than condemning agency personnel to the antiquated
system under title 5, Committee Republicans stand ready to work
across the aisle to implement TSA's bipartisan Blue Ribbon
Panel recommendations and build an efficient and effective
personnel management system at the agency that boosts front-
line pay, protects employee benefits, and meets the national
security mission of protecting the traveling public.
John Katko.
[all]