• Legislation Implementing Recommendations of the 9/11 Commission
  • August 8, 2007 | Authors: Jonathan K. Waldron; Joan M. Bondareff; Jeanne M. Grasso
  • Law Firm: Blank Rome LLP - Washington Office
  • On August 3, 2007, the President signed into law the "Implementing Recommendations of the 9/11 Commission Act of 2007," popularly called the 9/11 Commission Act, a law to implement many of the remaining recommendations adopted by the 9/11 Commission. Of paramount interest to the maritime community, the Commission Act includes a requirement that all container cargo entering the United States must be inspected by July 1, 2012, unless the Secretary of Homeland Security certifies to Congress that this requirement is not technically feasible to achieve. The law also requires that all air cargo be inspected within three years from enactment. In addition, the law authorizes a total of $4 billion over four years for new rail, Amtrak, interstate bus, and motor carrier security programs, and $1.6 billion over four years for grants to public agencies for interoperable communications. Furthermore, the law requires a study of the need for and feasibility of maritime and surface transportation user fees to provide necessary funding for maritime and surface transportation security. Finally, the law requires that State Homeland Security (or First Responder) grants be allocated increasingly on the basis of risk, and that all Urban Area Security Initiative grants to cities like New York and Washington, DC, be allocated based on risk.

    Background

    In 2002, the National Commission on Terrorist Attacks Upon the United States, also called the 9/11 Commission, was established to make recommendations to Congress and the President on what new security measures needed to be adopted in the United States. Former Governor Tom Kean and former Congressman Lee Hamilton chaired the 9/11 Commission. They issued their report on July 22, 2004 (www.9-11commission.gov). Since 2004, a number of the recommendations have been implemented, e.g., creating the post of Director of National Intelligence.

    When the Democrats took over the 110th Congress, they promised to implement the remaining recommendations of the 9/11 Commission. The House passed its 9/11 bill, H.R. 1, within the first six days of the 110th Congress. The Senate passed the companion bill, S.4, on July 9, 2007. Conference negotiations faltered at first because of provisions in both bills that would allow airport screeners who work for the Transportation Security Administration (TSA) to engage in collective bargaining. The President threatened to veto the bill if the screener provision remained, and the Democrats agreed to remove the provision. This enabled the conferees to work out the remaining differences and agree to the final bill.

    The only new provision added in Conference was a whistleblower protection provision to grant retroactive civil immunity from local, state, and federal liability for individuals who report suspicious activities. The whistleblower provision was added as a result of a lawsuit filed by six Muslim men who were thrown off an airplane after other passengers reported what they believed to be suspicious behavior. The immunity is granted unless the individual acts with reckless disregard for the truth.

    Overview of Major Transportation and Communication Related Provisions

    New Cargo Scanning Requirements

    A major question in the conference negotiations was whether to impose a new scanning requirement for all cargo entering the United States from a foreign port. The House bill contained a 100% scanning requirement, but the Senate bill did not contain this requirement. The Bush Administration and many shipping interests believed that the 100% scanning requirement was not feasible and would impede shipping. Many Republicans, including Senator Susan Collins of Maine, Ranking Member of the Senate Homeland Security Committee, argued that time should be given to determine how the pilot program enacted as part of last year's SAFE-Port Act (Pub. L. 109-347) was working. The SAFE-Port Act directed the Department of Homeland Security (DHS) to establish a pilot program for 100% scanning at three overseas ports. Phase I of the pilot has actually begun at six overseas ports, but no test results are in yet.

    Congressman Benny Thompson of Mississippi, the Chair of the House Homeland Security Committee, proposed the compromise that eventually became part of the final bill. The law requires 100% scanning with non-intrusive imaging equipment and radiation detection equipment before any cargo is loaded in a foreign port and bound for the United States. Compliance is required in five years, or by July 1, 2012. However, the Secretary of Homeland Security may extend the deadline in additional two year increments, if the Secretary certifies to Congress that at least two of the following conditions exist:

    1. Systems to scan containers are not available for purchase and installation;
    2. Systems to scan containers do not have a sufficiently low false alarm rate for use in the supply chain;
    3. Systems to scan containers cannot be purchased, deployed or operated at ports overseas, including because a port does not have the physical characteristics to install such a system;
    4. Systems to scan containers cannot be integrated with existing systems;
    5. Use of systems to scan containers will significantly impact trade capacity and the flow of cargo; or
    6. Systems to scan containers do not adequately provide an automated questionable or high-risk cargo alarm as a trigger for further inspection by appropriately trained personnel.

    Military cargo is exempt from the new requirement. The law is silent on who will pay for installation of new scanning systems. Presumably, the costs will be passed on by the shippers to the consumers.

    Aviation Security

    On a related topic, the Commission Act requires that all cargo transported on passenger aircraft be screened within three years from the date of enactment. In addition, $450 million is authorized annually from FY2008-FY2011 to install in-line explosive detection systems for passenger baggage screening. A new Checkpoint Screening Security Fund is created within DHS to purchase, install, conduct research on and develop equipment designed to improve explosive detection.

    Changes in Allocation of State Grant Funds

    Another recommendation of the 9/11 Commission was to ensure that all security grants be allocated on the basis of risk. Congress, which reflects the interests of all 50 states, has been struggling with this recommendation ever since. The new law requires that an increasing percentage of state responder grants be allocated on the basis of risk, which it achieves by reducing the minimum share to each state. Beginning in FY 2008, each State is to receive a minimum State Homeland Security Grant in the amount of 0.375 percent of the total funds appropriated for such grants. (Each state currently receives 0.75 percent of the total funding at a minimum.) This amount will be reduced over five years to 0.35 percent to each state. The law authorizes $950 million for each of FY2008-FY2012 for the State Homeland Security Grant Program. Of these funds, 25 percent must be allocated for law enforcement terrorism prevention activities.

    The new law also authorizes a total of $5.3 billion in grants to Urban Area Security Initiative (UASI) grants for FY 2008-FY 2012. This is an existing DHS program, based principally on risk, but the grants will now be distributed to the states who have 45 days to distribute 80% of the funds to designated urban areas within the states.

    New audit requirements have also been enacted for recipients of grants in excess of $500,000.

    Interoperable Communications

    A further recommendation of the 9/11 Commission was to address the communication problems confronted by police and firefighters at the World Trade Center sites. The 9/11 Act addresses this problem by establishing a new Interoperable Emergency Communications Grant Program that would distribute $1.6 billion over four years to allow states to carry out initiatives to improve local, tribal, statewide, regional, national, and, where appropriate, international interoperable emergency communications, including in response to natural disasters and acts of terrorism. Each state is to receive a minimum of 0.5 percent of the total funds from FY2008-FY2011.

    The Administrator of the Federal Emergency Management Agency (FEMA) is to administer the grant program acting through a new Director for Emergency Communications. The states, in turn, are to distribute 80% of the grant funds received to local and tribal governments. The funding is to be derived from the Digital Television Transition and Public Safety Fund (supported by revenues earned by the Treasury Department from public auctions of analog spectrum). Priority is to be given to public safety agencies that were not capable of receiving 911 calls.

    General Transportation Security Program; Study of User Fees; TWIC

    Although significant attention has been paid to aviation security, understandably since 9/11, Congress and DHS are also turning to securing other modes of transportation. The Senate bill contained a $4 billion program for surface transportation security over four years. These provisions were included in a separate House bill. In Conference, provisions that the Bush administration had objected to, such as collective bargaining rights for TSA workers, were dropped, but the remaining surface transportation programs were agreed to.

    In general, DHS is to develop a National Strategy for Transportation Security that would include a 3- and 10-year budget for Federal transportation security programs, and to share information on risks in the various modes with public and private stakeholders. The new law assigns responsibility as between DHS and the Department of Transportation (DOT) for transportation security grants. DHS is to determine the requirements for the grant programs and select recipients while both DHS and DOT will jointly determine the method of fund distribution.

    DHS will also conduct a study of the need for and feasibility of maritime and surface transportation user fees that may be imposed and collected as a dedicated revenue source to provide necessary funding for maritime and surface transportation security, including vessel and facility plans required under 46 USC § 70103 (c ).

    The law codifies the practice of TSA to permanently deny Transportation Worker Identification Credentials (TWIC) to felons convicted of crimes that pose a risk to national security, such as espionage, treason, and sedition. The agreement temporarily prohibits TWICs from being given to individuals convicted of lesser felonies such as bribery, smuggling, or fraudulent entry into the U.S.

    Public Transit Grants

    A total of $3.4 billion is authorized in the Commission Act for grants to public transit agencies for tunnel protection systems, perimeter protection systems, chem-bio detection systems, surveillance equipment, and emergency response equipment, among other capital costs of protecting the nation's public transit systems (e.g., Metro). DHS is also required to issue guidance to public transit agencies to conduct security background checks on employees and contractors.

    Rail and Amtrak Security

    DHS, in consultation with the DOT and other agencies, is required to complete, within six months, a nationwide risk assessment of a terrorist attack on railroad carriers, and within 12 months, the Secretary is required to issue regulations requiring each railroad carrier assigned to a high-risk tier to conduct a vulnerability assessment and to prepare, submit to DHS for approval, and implement a security plan. In turn, the rail carriers are provided nine months from the date of issuance of the regulations to complete their assessments and plans. To carry out the new requirements, DHS is authorized to award grants to rail carriers, the Alaska Railroad, and Amtrak, among others. A total of $1.2 billion over four years is authorized to implement these requirements.

    A separate authorization of $650 million is provided for grants to Amtrak to conduct system-wide security upgrades, including specified grants to secure major tunnels in New York, New Jersey, Maryland, and Washington, D.C.

    In nine months from enactment of the Act, the Secretary must promulgate a final rule requiring railroad carriers transporting security-sensitive materials to review and use the most practicable route posing the least overall safety and security risk. Similar requirements are imposed for transporting hazardous materials by motor carrier.

    DHS is required to establish a security exercise program for rail employees, and to develop a system to detect undeclared passengers and contraband from entering the U.S. by rail.

    Bus and Trucking Security

    In 18 months from date of enactment of this Act, the Secretary of DHS is required to issue regulations to require each over-the-road bus operator assigned to a high-risk tier to conduct vulnerability assessments and to prepare, submit to the Secretary for approval, and implement a security plan. The operators then have nine months to comply with the regulations. DHS is to provide technical and financial assistance to the bus operators. Grants totaling $87 million for the next four years are authorized for this program.

    With respect to trucking security, DHS, in coordination with DOT, is required to prepare and report to Congress on the security status of the trucking industry, including an assessment of the economic impact of security upgrades on the trucking industry, including independent owner-operators.

    Critical Infrastructure

    Most of the critical infrastructure in the United States is in private hands. With the exception of certain maritime facilities, public water systems, nuclear power plants, and chemical plants, some of which will now be required to conduct vulnerability assessments and prepare and implement security plans (see Chemical Industry Update No. 2, April 2007), no other privately-owned infrastructure is required to have the same degree of regulation. The Commission Act marks the first moves in the direction of addressing this deficiency by requiring DHS to maintain a National Database of critical infrastructure assets, to prioritize that list according to risk, and report on the preparedness of industry to respond to acts of terrorism or natural catastrophes. As noted above, new programs with grant funding are included in the Commission Act to address security at a variety of transportation modes.

    Other Major Provisions

    Following is a brief summary of the remaining significant provisions of the Commission Act:

    Intelligence Programs

    • Requires the Director of National Intelligence to disclose appropriations used for National Intelligence Program operations.

    • The President can waive or postpone the appropriations disclosure of any fiscal year if such a disclosure would compromise national security.

    Prevention of Terrorist Travel

    • Expands the current visa-waiver program that allows the federal government the ability to waive visas for 90-day periods of nationals of U.S.-allied states and where U.S. citizens can receive reciprocal visas. The agreement would allow the United States to waive visas for nationals of countries that do not provide reciprocal visas to U.S. citizens if the countries cooperate with U.S. counterterrorism activities and do not pose a threat to U.S. law enforcement, immigration, or security concerns.

    • Directs DHS to create an electronic travel authorization system to collect information from individuals seeking to enter or leave the U.S. under the visa waiver program. DHS is authorized to collect a fee for the use of the system.

    • Requires DHS to conduct a cost-benefit analysis of the requirement established in the 2004 Intelligence Reform Act to require travelers to present a passport to enter the U.S. from western hemisphere nations that had been previously exempt from passport requirements. It also requires DHS to initiate a pilot program with at least one state to determine if an enhanced driver's license could be used as a feasible form of identification to secure entry into the U.S. from Canada.

    Intelligence and Information Sharing

    • Requires DHS to adopt a new advisory system that would be prohibited from using color designations as the only means of providing information. The alerts should contain specific information regarding regions, location, or economic sectors and include recommendations of protective measures to be taken.

    • Establishes a DHS State, Local, and Regional Fusion Center Initiative. Funded at $10 million over the next five years, the Initiative is intended to enhance information sharing among the various levels of government.

    Protection of Civil Liberties

    • Re-establishes the Privacy and Civil Liberties Oversight Board as an independent office within the Executive Branch instead of existing under the auspices of the Executive Office of the President. The board is authorized to request that the Department of Justice issue subpoenas.

    • Requires the head of every federal agency that engages in data mining to report to Congress on such activities and make the report available to the public.

    Weapons Non-proliferation

    • Repeals or modifies assistance limitations to former Soviet states for nuclear nonproliferation and antiterrorism activities and authorizes the President to provide aid to any country that cooperates with the United States and its allies in preventing the transport of materials that could lead to weapons proliferation.

    • Allows the Cooperative Threat Reduction Initiative, originally designed to provide aid to former Soviet states in order to dismantle nuclear weapons, to provide aid to nations that were not once within the Soviet Union.

    • Creates the National Biosurveillance Integration Center to identify and track a biological threat and alert federal, state, and local agencies of this threat.

    • Requires the State Department to report to the appropriate Congressional committees on the progress of an international agreement on detainee policy which ought to be based on the Geneva Conventions.

    Foreign Policy

    • Security assistance to Pakistan will be given on the condition that the President reports to Congress that the Pakistani Government is actively taking steps to eliminate terrorist groups from operating in their country.

    • Establishes the Commission on the Prevention of Weapons of Mass Destruction Proliferation and Terrorism. The Commission would have nine members and would evaluate current efforts to combat terrorism and make recommendations for the future.

    Related Funding Issues

    The Commission Act is, in essence, an authorizing bill. It will be up to this and subsequent Congresses and Administrations to secure funds to implement the new program requirements. Congress is still completing its work on the FY 2008 DHS Appropriations bill. The Senate just added $3 billion to the bill for emergency funding for border security. The House added $89 million for border fencing. However, the President has threatened to veto the bill because it exceeds his budget proposals.

    Conclusions and Recommendations

    Despite the objections of the shipping community and doubts by DHS on the wisdom or desirability of a new cargo scanning requirement, Congress did adopt, and the President has agreed to, new requirements to have all cargo entering the U.S. by ship or plane to be scanned within five or three years, respectively. It will be up to the maritime and aviation communities to implement these requirements or to present reasons to DHS why these timelines can not be met. At that time, DHS will have to decide whether to force compliance or to certify to Congress that conditions at foreign ports and lack of technology make compliance impossible. The requirements also provide opportunities for companies to offer new solutions in the areas of cargo scanning, container security, transportation security, and interoperable communications. We will be monitoring these requirements and would be pleased to advise clients on how to address them.