Improving America's Security Act of 2007
Floor Speech
BREAK IN TRANSCRIPT
Ms. COLLINS. Mr. President, let me begin my comments this morning by commending the Senator from New Hampshire for his hard work and vigorous advocacy on this issue. He has been a very early voice, pointing out the unfairness of this unfunded mandate on the States, unfunded mandates that the National Governors Association estimates may cost $11 billion over the next 5 years. He has also raised very important concerns about the privacy implications of some of the provisions of the REAL ID Act.
He was a strong supporter of the approach that we took in 2004 as part of the Intelligence Reform Act when we set up a negotiated rulemaking process which would bring all of the stakeholders to the table--State governments, Federal agencies, privacy advocates, technological experts--and clearly that would have been a far better way to proceed. The Senator from New Hampshire is one of the Senate's foremost advocates for privacy. He has brought that issue up, and his concerns about privacy and civil liberties, on other legislation such as the PATRIOT Act that has been before the Senate. I thank him for his leadership on this important issue.
I do have some good news to report to my colleagues about the pending regulations for the REAL ID Act. As many of my colleagues are aware, one of the problems that the States have had is the Department of Homeland Security had yet to issue the regulations giving States the detailed guidance on how to comply with the REAL ID Act. This is a major problem for the States because of the looming deadline of May of next year by which time they are supposed to be in full compliance with the law, despite the fact that the regulations had not been issued. It was that concern, the long delay by the Department, the cost and the complexity of the task, and the privacy and civil liberty implications that led several of us to come together and offer an amendment that would have a 2-year delay in compliance with the REAL ID Act.
I am pleased to inform my colleagues that as the result of some rather spirited negotiations with the Department of Homeland Security that the Department will announce later today regulations that would give any State that asks an automatic, virtually, 2 years--it could be more than 2 years in some cases--but a 2-year delay in the requirement to comply with the REAL ID Act. This is significant progress. The Department has finally recognized that it simply was unfair to impose this burden on the States, to set such an unrealistic compliance date when the Department had failed to issue the regulations. So the Department will be announcing today that any State that seeks an additional 2 years to comply with the regulations will be granted that extension. This is major progress.
In addition, the Department will announce that it will reconvene the members of the negotiated rulemaking committee that was established by the 2004 Intelligence Reform Act and subsequently repealed by the REAL ID Act to come together and to comment on the Department's regulations. Again, this reflects a major principle in the Collins amendment: that we should have a 2-year delay to allow for additional compliance time but that we should also reconvene the negotiated rulemaking committee, the committee that is comprised of State officials--in fact, Maine's own
secretary of state was one of the officials on the committee--and privacy experts, technological experts, all the stakeholders would be reconvened to formally review the proposed regulations and provide the Department with the benefit of this committee's insight.
That is what should have happened in the first place but, certainly, given where we are now, this is another very positive step that the Department is taking. It reflects the principles in the amendment that I and others offered yesterday. It is obvious that the pending amendment provided a great deal of impetus for the Department to undertake these revisions in the proposed regulations.
These two major concessions by the Department--the extension for compliance and the reconvening of the negotiated rulemaking committee--are major steps forward, but they do not solve all of the issues and all of the problems with the REAL ID Act, the biggest of which is the huge cost of compliance. Along with Senator Alexander and others--Senator Sununu, Senator Carper, Senator Akaka, and others who had been active on this issue--I am pledging today to continue to work very closely with our State leaders and with the Department of Homeland Security to calculate what the actual costs of compliance are going to be--that is going to be easier to do now that the regulations are finally being issued--and to work to try to find some funding to assist States with the cost of compliance.
To date, Congress has only appropriated about $40 million to help the States comply with the REAL ID Act, and the Department, I am told, has only allocated about $6 million of that $40 million. So there is some additional money in the pipeline, but if in fact the cost is as high as the National Governors Association and the National Conference of State Legislatures estimate, that $40 million is a drop in the bucket. The 5-year cost estimated by the NGA is $11 billion. Clearly, if the costs do prove to be in that neighborhood, if they are that high, we have an obligation to come forward and assist the States in the cost of compliance. It can be a shared responsibility, but surely, since we imposed the mandate, we should be providing some of the funding that is needed.
I am very happy the amendment that I and several of our colleagues have offered has prompted the Department to take a second look at its regulations, to realize that it was simply unreasonable to expect the States to comply by May of next year when the Department has been so tardy in issuing the regulations. And I am pleased that the Department has changed its mind. I thank Secretary Chertoff for working closely with me and for listening to all of us who were raising these concerns--that it was simply unreasonable to expect States to be in full compliance by May of next year when they did not have the detailed guidance from the Department.
I am also very pleased the Department is going to reconvene the negotiated rulemaking committee members. That will give the Department further input and insights and improve the quality of the final regulations.
There is still much work to be done, particularly in the funding area, but this is certainly great progress, a welcome development, and a major step forward by the Department. I again thank Secretary Chertoff for working so closely with me.
BREAK IN TRANSCRIPT
Ms. COLLINS. Mr. President, shortly, I am going to ask unanimous consent to withdraw the Collins amendment No. 277, which is cosponsored by Senators ALEXANDER, CANTWELL, CARPER, CHAMBLISS, MIKULSKI, MURKOWSKI, and SNOWE. It also has received support from Senator Sununu this morning, who was very eloquent in his comments about the implementation of the REAL ID Act.
I ask to withdraw my amendment in light of the tremendous progress we have been able to make with the Department of Homeland Security over the last 24 hours in convincing the Department to modify the regulations which it is releasing today to allow about 2 years of additional time for compliance with the REAL ID mandates and also to reconvene the negotiated rulemaking committee to take a look at those regulations and provide their insights and input to the Department so the Department can take them into account in issuing the final regulations.
Now, I consider this to be tremendous progress. It is a very welcomed development. The Department's actions reflect the two primary objectives I outlined yesterday for my amendment: first, to give the Federal Government and States the time and flexibility needed to come up with an effective system to provide secure driver's licenses without unduly burdening the States and, second, to involve experts from the States, from the technology industry, as well as privacy and civil liberty advocates--to bring them back to the table and give them a chance to work on these regulations and to improve them.
I am very pleased to say over the course of the past week our amendment has received a great deal of support from a number of sources. The National Governors Association praised our amendment for providing States:
a more workable time frame to comply with federal standards, ensure necessary systems are operational and enhance the input states and other stakeholders have in the implementation process.
The American Federation of State, County and Municipal Employees, in a letter to all Senators that was sent on February 27, said:
We strongly urge you to support an amendment offered by Senator Collins that would delay implementatiohttp://thomas.loc.gov/http://thomas.loc.gov/n of requirements under the REAL ID Act. .....
The letter goes on to outline the organization's concerns about the costs to States, the capacity for States to meet the REAL ID requirements, and privacy issues and concludes:
The Collins amendment provides the opportunity to address these matters.
Similarly, the National Conference of State Legislatures, the NCSL, with which we have worked very closely, in a statement on February 20, said this legislation would help ``address state concerns over the Real ID Act. .....'
To this support has been added the voices of Senator Alexander, Senator Chambliss, Senator Sununu, and cosponsors on both sides of the aisle. One of the very first cosponsors is a former Governor who understands very well the implications for States of complying with the REAL ID Act. That individual is Senator Carper of Delaware.
So we have been able to build a broad bipartisan coalition, and that gave us the strength to prompt the Department of Homeland Security to make the changes as a result of recent, extended discussions with the Department. As a result, we can now say the primary concerns we have addressed with our amendment have been addressed in the Department's proposed regulations.
In the regulations being announced this morning, the Secretary of Homeland Security will commit to granting a waiver to any State that asks for it through December 31 of 2009. States will not be required to make a complicated case for the waiver. The Secretary has recognized the delay in the Department's promulgation of the draft regulations is reason enough to give States an additional 2 years before they need to begin producing REAL ID-compliant driver's licenses. I am pleased the Department has taken this step.
In addition, the Department has agreed, as I have mentioned, to invite the members of the negotiated rulemaking committee--which was created by the 2004 Intelligence Reform Act, and subsequently repealed by the REAL ID Act, just when they were making great progress--to come to the Department and discuss, in person, their specific concerns about the regulations.
The provisions announced today are in line with the need for more time and the inclusion of all interested parties that were the two primary goals of our amendment. These provisions, of course, are part of a much larger regulation that will take us time to review, to consult with the States on, and to comment on. I am going to follow closely the whole notice and comment period. I am sure I will be suggesting changes to the regulations, and I will be working closely with the negotiated rulemaking committee to http://thomas.loc.gov/make sure the regulations are modified further down the line.
I am under no illusions that there are not further issues which need to be addressed about the REAL ID Act. We must look closely at the concerns that privacy advocates have raised about potentially having interlocking databases among the States so that information is shared. There are a lot of questions, such as who would have access to that information, how secure it would be, and how correct it would be. There is a lot of work to be done.
Most of all, we need to get an accurate estimate of how much this program is going to cost the States and how we can help them bear those costs. This does remain a huge unfunded Federal mandate on our States. The NGA, as I have said several times, has estimated the cost at $11 billion over the next 5 years. That is an enormous burden for States to bear.
We also have to determine if the technological demands that will be imposed on States by these regulations are, in fact, feasible. But I am very pleased to note that our efforts with the Department have achieved the goals that we set out in offering our amendment. There is further work to be done on the REAL ID Act, but we certainly have made tremendous progress over the past 24 hours.
I thank all of the cosponsors of the bill: Senators Alexander, Carper, Cantwell, Chambliss, Snowe, Mikulski, and Murkowski for their strong, bipartisan support, and I thank all of the outside organizations, including the Governors and the State legislatures, who have worked so closely with us. I hope we will continue our partnership as we make real progress in improving the REAL ID Act.
BREAK IN TRANSCRIPT
Ms. COLLINS. Mr. President, first, let me thank the Senator from Minnesota for his excellent statement. He has spent a great deal of time on this issue as the former chairman of the Permanent Subcommittee on Investigations. He examined our ports very closely. He helped draft the port security bill we passed last year. I hope my colleagues will listen to his advice on this issue.
Mr. President, 100 percent screening, that sounds like a great slogan. After all, who could be against scanning 11 million containers?
Let's look at what that would involve. The fact is we need to concentrate our resources on containers that pose a real threat, on containers and cargo that are at highest risk. It doesn't make sense to try to inspect everything, and it has extraordinarily negative consequences for our system of international trade.
I rise to oppose Senator Schumer's amendment that would require scanning of all cargo containers entering the United States from large foreign ports within 3 years, and containers from all 700 foreign ports in 5 years. This approach patently ignores the technological limitations on integrated scanning systems that are necessary to scan 100-percent of containers. It irrationally assumes that integrated scanning systems will be practical and cost-effective and work well in only 3 years. I hope they will be, and I will talk about the pilot programs we have underway to see or to test the feasibility.
But the costs of being wrong on this assumption are too high for our economy, as so much of our international trade relies on cargo container traffic. Think of how many companies rely on just-in-time inventory. Think of how many businesses all across this country receive cargo. We need a system that makes sense.
The fact is there are substantial technological challenges to scanning 100 percent of cargo containers at foreign ports. I traveled to Seattle, Long Beach, and Los Angeles to look at the ports and see their operations. I think anyone who does that quickly reaches the conclusion Senator Murray and I have reached, which is this cannot work. If you look at how at-risk cargo is scanned, it takes time to unload the container, separate it from the rest of the cargo; it takes a few minutes to scan each container as this giant x-ray-like machine goes around the container. Then the analysis of the images can take several more minutes.
Think about this. We have 11 million containers headed to the United States; that is in a year's time. That is going up each year. When I first started working on port security legislation, it was only 8 million. Now it is 11 million containers. Well, think of the delays that would be caused by scanning each and every container. It would create a massive backlog of cargo at our ports and it would not make us safer.
There are other problems as well. Current radiation scanning technology produces alarm rates of about 1 percent--almost entirely from naturally occurring substances in containers. Actually, when I was in Seattle with Senator Murray, we were told that, for some reason, marble and kitty litter seemed to trigger false alarms. So obtaining enough foreign government and DHS personnel to conduct inspections of all those false alarms would be expensive. It is far better to concentrate on containers that, because of the cargo or because of other indicators through the sophisticated system used to identify at-risk cargo, warrant that kind of inspection. There would also be a requirement for extensive negotiations with foreign governments to agree on the deployment of scanning technologies, the protocol for inspecting containers that set off alarms, and stationing customs and border protection inspectors in their ports. Foreign governments would probably turn around and say: If you are going to scan all of the containers coming into America, we are going to scan all of your containers coming into our country. That would multiply the costs and the impact.
Requiring all containers to be scanned and the images reviewed without adequate technology in place would make our country less safe, not more safe. The approach in this amendment would unwisely waste scarce resources on inspecting completely safe cargo instead of targeting personnel and equipment on the cargo that presents a threat to our country and the greatest risk.
The Homeland Security Committee spent a great deal of time last year on port security legislation, and we drafted a bill, brought it unanimously to the Senate floor, had extensive debates in September, and we debated this very issue at that time. Why we are revisiting it just a few months later is beyond me, but here we are.
This amendment wholly ignores the pilot projects that were established by the SAFE Port Act which we passed last year. These pilot projects are intended to test the technology to see if there is a way to increase scanning. The technology is changing. It is getting better. This may be feasible at some point, but it is not today.
The SAFE Port Act requires the Department of Homeland Security to test scanning in three foreign ports, and the Department is proceeding very rapidly to follow the instructions. It is going to be implemented in ports in Pakistan, Honduras, and the United Kingdom. These pilot projects will involve radiation scanning and x-ray or a nonintrusive imaging scanning that will then be reviewed by American employees, American officials. If these pilots are successful, then we will begin to expand the equipment and the personnel. But the fact is that extensive research and development remains to be done on 100-percent scanning technologies and on infrastructure deployment at seaports.
Given the significant impact this requirement would have on our economy, it simply is not responsible to move to this requirement before we have the technology in place to make it feasible and before we have the results of these pilot projects. This isn't just my opinion. If one talks to port directors around the world and on both coasts of the United States, one will find that they believe we cannot do this in a practical way and that it would cause massive backlogs and delay the delivery of vital commodities. It would cause terrible problems for companies that rely on just-in-time inventory. That is why many shippers and importers oppose this amendment, as well as the Retail Industry Leaders Association, National Retail Federation and the U.S. Chamber of Commerce.
So what do we do now? I think it is important for people to understand that we do have a good and improving system in place to secure our cargo. DHS has adopted a layered approach to cargo security that balances security interests against the need for efficient movement of millions of cargo containers each year.
One layer is the screening of all cargo manifests at least 24 hours before they are loaded onto ships. This screening is done through DHS's automated targeting system which identifies high-risk cargo and containers. This is a very important point. The SAFE Port Act, which is now in effect, requires 100 percent of all high-risk containers to be scanned or searched by Customs and Border Protection--100 percent. We found in our investigations that was not always the case, that high-risk containers that had been identified were, in some cases, loaded onto ships and reaching our shores. But the SAFE Port Act changes that. It ensures that 100 percent of high-risk containers will be scanned.
The scanning and inspection of certain high-risk containers is one of the first layers of this multilayered approach the Department uses to prevent weapons of mass destruction or other dangerous cargo from entering the United States.
A second layer is the Container Security Initiative. This program stations Customs and Border Patrol officers--American Customs and Border Protection officers--at foreign ports. The concept here is to push back our shores. The more we can do these reviews overseas rather than waiting for dangerous cargo to come to our shores, the better the system. CSI will be operational in 58 foreign ports by the end of this year, covering approximately 85 percent of containerized cargo headed for the United States by sea. DHS is continuing to expand this program by working with foreign governments, but this is an excellent program because it ensures that our trained American personnel are stationed in foreign ports.
There is yet another layer, a third layer, and that is the Customs-Trade Partnership Against Terrorism Program. It is called C-TPAT. This is another layer that is designed to bolster security along the entire supply chain under a voluntary regime. The concept here is that a company can sign up to be part of C-TPAT by guaranteeing that its entire supply chain is secure from the factory floor to the showroom floor, and that is the best kind of security we can have. So when goods leave the factory floor, the supply chain, every step of the way--the transporting of the cargo in a truck to the truck going to the port--at every stage, the company has ensured that the supply chain is secure.
These layers--the automated targeting system, the work the Coast Guard does, which I haven't even touched on--also add to the security. The Container Security Initiative and the C-TPAT Program represent a risk-based approach to enhancing our homeland security. At the same time, they allow the maritime cargo industry in the United States, which moves more than 11 million containers each year, to continue to function efficiently.
The SAFE Port Act also requires that at the end of this year, the largest 22 U.S. ports must have radiation scanners, which will ensure that 98 percent of containers are scanned for radiation. That is practical with the current technology. Again, I have seen that in operation in Seattle, where the trucks roll through these radiation portal monitors and an alarm can sound if radiation is found. Sometimes, unfortunately, there are false alarms as well.
We are also working to install those kinds of radiation monitors overseas because, obviously, it is far better if we can do that scanning for radiation overseas in foreign ports on cargo before it reaches our shores. The Department of Energy, under the Megaports Initiative, is currently installing scanning equipment in foreign ports and scanning containers for radiological material. So we are making good progress.
Some who are advocating 100 percent screening are pointing to a project in Hong Kong, the Integrated Container Inspection System. This is a promising concept, but, as my colleague from Minnesota noted, the project in Hong Kong actually covers only 2 lanes of traffic of more than 40 at the port. In addition, what is happening is images are being taken, but no one is reading and analyzing the images. So this is not truly a project that tells us whether a true, 100-percent integrated scanning system is feasible. But we do have those projects underway, and we should wait until they are ready and finished before moving ahead.
Again, I hope my colleagues will once again reject this amendment. I think it is a big mistake. It would interrupt our system of container traffic, and it could have truly disastrous consequences for our economy. All of us want to make sure cargo coming into this country is safe. There were definitely vulnerabilities and holes in our system for cargo security, but the SAFE Port Act, which we passed at the end of last year, took major steps to plugging those gaps, closing those holes.
We should proceed with vigorous implementation of that bill, including the requirement that 100 percent of all high-risk cargo be scanned, and we should also continue our efforts to build the strongest possible layered system to secure the entire supply chain.
BREAK IN TRANSCRIPT
Source