Conference Report on H.R. 1, Implementing Recommendation of the 9/11 Commission Act of 2007

Floor Speech

CONFERENCE REPORT ON H.R. 1, IMPLEMENTING RECOMMENDATIONS OF THE 9/11 COMMISSION ACT OF 2007

BREAK IN TRANSCRIPT

Mr. MARKEY. Mr. Speaker, September 11 was a very important day in Boston history. Mohammed Atta and nine other terrorists hijacked two planes with hundreds of people on them 2 miles from my house and flew them into the World Trade Center, killing not only the people in the World Trade Center, but all of the people on those two planes from Logan airport.

For the last 5 years, we've had a fight over whether or not we should screen

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the cargo which goes on passenger planes in our country. Yes, each of us has to take off our shoes, our bags have to go through, we have to take off our wristwatches, children's baby carriages have to be inspected. But, believe it or not, then the cargo is placed right under our feet, and it's not screened. Billions of pounds of cargo not screened.

And so this cargo loophole has been fought by the cargo industry, opposed by the Bush administration, but now it is in this legislation. And henceforth, all of the cargo which goes onto passenger planes in our country, placed next to the bags of passengers, placed under the feet of passengers on planes, will also be screened. And so now cargo will have this on it. Screened, safe to place upon those planes. It is a huge moment in security. This bill is historic.

And secondly, although the Bush administration has opposed it, this legislation also includes my language which is going to require the screening of cargo on ships coming into ports in the United States.

Right now cargo with a nuclear bomb in it, which we know is al Qaeda's top goal, to obtain a nuclear weapon from someplace in the former Soviet Union, move it to a port in the world and move that ship with the cargo into New York, into Long Beach, into Boston, and then detonate the nuclear bomb before it is taken out of the cargo hold of that ship, destroying that American city. Because of the language in this bill, that cargo will now be screened in the port overseas before it ever leaves for our country. It will be screened for a nuclear bomb overseas, thwarting the highest objective which al Qaeda has, which is to detonate a nuclear bomb.

Now, I can understand the Bush administration's misgivings about it, and I understand that many of the Senators, Republican Senators will not sign this conference report because of this requirement. I think they're making a historic mistake. This is at the top of the terrorist target list. This is what they want to do to American cities, detonate a nuclear bomb on a ship already docked in a port in the United States before it's ever taken off that ship.

This legislation is historic. I congratulate Chairman Thompson. I congratulate the staff. I congratulate the bipartisan nature for the vast majority of this legislation. It is overdue. It is overdue.

We must put in place the defense, now, against al Qaeda returning to finish their plot against us here in the homeland.

Al Qaeda came to Boston to begin this attack. There's no reason to believe they can't return to those very same planes, to those very same docks where al Qaeda came in. They came in through the ports of Boston to, in fact, wreak this catastrophic event on our country.

Vote "yes'' on this bill.

Mr. Speaker, as the principal author of the air cargo security provision in Section 1602 of the conference report--Screening of Cargo Carried Aboard Passenger Aircraft--I want to make several points clear.

While the House version of the bill used the term ``inspected'' and the Senate version used ``screened'', neither bill actually defined these terms. The language in the final version of the bill does define ``screening'', and it makes clear that screening does not mean what DHS currently considers screening--reviews of manifests, information about shippers (Known Shipper program), etc.

To make clear what is meant by screening, the final bill states that:

The system used to screen 100 percent of cargo carried on passenger planes must provide a level of security on par with the level of security for passengers' checked bags. Specifically, the language states that the system ``shall require, at a minimum, that equipment, technology, procedures, personnel or other methods approved by the Administrator of TSA are used to screen cargo carried on passenger planes to provide a level of security commensurate with the level of security for the screening of passenger checked baggage.'' (emphasis added). A 3-year deadline is established to get to 100 percent, with an interim benchmark of 50 percent of cargo within 18 months of enactment.

Screening means an examination of the cargo's contents, not just information about the cargo, consistent with the mandate that the cargo screening must be on par with the security standard for screening of passengers' checked bags. The bill stipulates the cargo screening methods TSA is to use to meet this standard: ``Methods of screening include x-ray systems, explosive detection systems, explosive trace detection, explosive detection canine teams certified by the TSA, or a physical search together with manifest verification.'' These are methods currently used for checked bags.

While TSA may approve additional methods, they cannot be solely data checks, and must also utilize physical checks. As the final language makes clear: ``The Committee is also concerned about TSA using data checks of cargo or shippers ..... as a single factor in determining whether cargo poses a threat to transportation security. The Conference substitute, therefore, requires that if such data checks are used, they must be paired with additional physical or nonintrusive screening method approved by TSA that examines the cargo's contents.'' (emphasis added).

There has been some discussion in the media about Congress's intent in passing this provision. I want to address these points and make clear the intent of the provision.

One concern that was raised is that as much as 60 percent of air cargo could be exempt from a mandatory physical inspection at airports, under a new program to be called Certified Shipper.

As noted above, the language in the final version of the bill requires that the system for screening all cargo on passenger planes must ``provide a level of security commensurate with the level of security for the screening of passenger checked baggage.'' All cargo on passenger planes must be physically examined before it is loaded onboard, a major departure from current practice. While TSA may be considering a so-called ``Certified Shipper'' program that would require physical examination of all cargo in a location off the airport grounds and then a sealing of the cargo containers with tamper-proof seals, this plan, and any such system developed by TSA, must provide a level of cargo security on par with the level of security for checked bags, which includes the requirement that the contents of all the cargo must be physically checked.

The final version of the bill mandates that the Department of Homeland Security issue a rule to implement a system consistent with the bill's 100 percent cargo screening requirement. Congress, along with stakeholders who have been working to require 100 percent screening of all cargo carried on passenger planes, will be watching TSA's plans closely to ensure that the implementation of the cargo screening mandate in the bill is performed in a manner that complies with the mandate in the final version of the bill. If TSA's system does not ``provide a level of security commensurate with the level of security for the screening of passenger checked baggage'' as required in the bill, it will not be in compliance with the congressional mandate in the final version of the bill, and therefore will be in jeopardy of being halted or modified by Congress to bring it into compliance with the law.

Another concern that has been raised is that companies that participate in the Certified Shipper program would still have to follow security rules, including conducting their own package inspections and putting special tamperproof seals on containers, but packages handled by these companies, which will probably represent the bulk of the air cargo industry, would generally be exempt from mandated electronic, canine or other physical inspections at the airport.

Again, a so-called ``Certified Shipper'' program or any other program that TSA develops to implement the mandate to screen 100 percent of the cargo on passenger planes must meet the standard that it provides a level of security on par with the level of security for passenger checked bags. At this point, it is unclear whether a program that screens and then seals cargo outside the airport perimeter would meet this standard.

In an April 2007 report requested by Representative Markey and other Members, the Government Accountability Office (GAO) noted that the Department of Homeland Security is conducting pilot programs to test a number of currently employed technologies used in other areas of aviation and transportation security, as well as new technologies. These pilot programs include an air cargo security seals pilot, which is exploring the viability of potential security countermeasures, such as tamper-evident security seals. According to GAO, TSA anticipates completing its pilot tests by 2008. (GAO-07-660 Aviation Security). Before implementation of any TSA air cargo program relying on seals, a thorough, comprehensive assessment of the effectiveness of such seals will have to be conducted. Again, if such a system does not ``provide a level of security commensurate with the level of security for the screening of passenger checked baggage'' as required in the bill, it will not be in compliance with the congressional mandate in the final version of the bill, and therefore will be in jeopardy of being halted or modified by Congress to bring it into compliance with the law.

Another concern that has been raised is that a program similar to Certified Shipper that is used by Customs and Border Patrol for ship cargo has frequently been criticized. Auditors have found that companies in this program are sometimes permitted to move their goods more quickly even though there is insufficient proof that they have a robust security system in place.

The program referred to above is called the Customs--Trade Partnership Against Terrorism (C-TPAT). I have criticized C-TPAT for many of the same reasons cited above. In fact, in addition to the air cargo screening requirement, the final version of the bill also includes a requirement that 100 percent of maritime cargo must be screened and sealed overseas before it arrives in U.S. ports. Clearly, with the inclusion of this mandate in the final version of the bill, Congress rejected C-TPAT as a substitute for 100 percent scanning of maritime containers. It did not intend, nor would it permit, a program for screening 100 percent of air cargo that is based on the flawed C-TPAT program.

By establishing the standard that TSA's system for screening 100 percent of cargo on passenger planes must "provide a level of security commensurate with the level of security for the screening of passenger checked baggage'', the final version of the bill creates requirements much more stringent than the C-TPAT program. C-TPAT uses risk-based process, not mandatory, comprehensive screening. Specifically, C-TPAT security guidelines state that "C-TPAT recognizes the complexity of international supply chains and endorses the application and implementation of security measures based upon risk analysis. Therefore, the program allows for flexibility and the customization of security plans based on the member's business model. As listed throughout this document appropriate security measures, based on risk, must be implemented and maintained throughout the Air Carrier's supply chains'' (emphasis added, http://www.cbp.gov/xp/cgov/import/commercial

The air cargo provision requires 100 percent screening, not risk assessment. The air cargo provision mandates screening of all cargo carried on passenger planes within 3 years. Under the air cargo provision in the conference report, no risk calculation is permitted to determine whether or which cargo to screen; rather, all cargo is presumed to present a risk and must be screened, just as all of passengers' checked bags must be screened under the current policy.

The C-TPAT program relies on data and manifest information, not physical checks. C-TPAT guidelines advise program participants in the procedural security measures they should use for the shipping and receiving of cargo. These procedures rely on data and manifest checks, not the physical screening of the cargo to determine and evaluate its contents. Specifically, the C-TPAT guidelines state that: ``Arriving cargo should be reconciled against information on the cargo manifest. The cargo should be accurately described, weighed, labeled, marked, counted and verified. Departing cargo should be checked against purchase or delivery orders.'' (emphasis added)

Whatever system TSA establishes to implement the 100 percent air cargo screening requirement in the bill will be subjected to close congressional scrutiny to ensure that it meets the standard established in the bill; namely, the system must provide a level of security commensurate with the level of security for the screening of passenger checked baggage, as stipulated in the bill. Again, any TSA system that fails to meet this standard will not be in compliance with the congressional mandate in the final version of the bill, and therefore will be in jeopardy of being halted or modified by Congress to bring it into compliance with the law.

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