Department of Homeland Security: Should the Transportation Security Administration be Included?

Order Code RS21244

Updated July 24, 2002

CRS Report for Congress

Received through the CRS Web

Department of Homeland Security: Should the

Transportation Security Administration be

Included?

Robert S. Kirk

Economic Analyst, Transportation

Resources, Science, and Industry Division

Summary

President George W. Bush has unveiled a plan to create a new Department of

Homeland Security (H.R. 5005, introduced by request). The new department would be

formed by consolidating all or part of 22 of the more than 100 different government

organizations that are currently involved in antiterrorist activities. As part of this

proposal, the recently created Transportation Security Administration (TSA) would be

removed from the Department of Transportation (DOT) and transferred to the new

entity. Supporters of the transfer argue that attacks on transportation make up too large

a portion of terrorist attacks, world-wide, to leave the TSA out of the new department

and that to do so would create problems of dual lines of authority for transportation

security. They also assert that by year’s end, TSA’s size, importance, and lawenforcement role will make the TSA so significant to homeland security that a

meaningful homeland security department cannot be created without it. Opponents of

shifting TSA out of DOT argue that, in passing the Aviation and Transportation Security

Act (ATSA) (P.L. 107-71), Congress, after much debate, placed the TSA in the DOT

and that there is no reason to replay the debate so soon. They also argue that TSA is

itself an agency under construction and that to move it to a new department would delay

the implementation of ATSA and weaken important ties to the transportation expertise

of DOT. This report summarizes these and other arguments on both sides of this issue.

It does not reflect the views of CRS, which does not take positions on public policy

issues.

This report will be updated as warranted by events.

On June 6, 2002, President George W. Bush unveiled a plan to consolidate the

antiterrorist activities of 22 federal agencies to create a cabinet-level Department of

Homeland Security. The transfer of the recently created Transportation Security

Administration from the Department of Transportation to the new department is part of

the proposal (H.R. 5005, introduced by request). Congressional proposals to create a

department of homeland security predate the President’s plan. The National Homeland

Security and Combating Terrorism Act of 2002 (H.R. 4660; S. 2452), introduced on May

Congressional Research Service ˜ The Library of Congress

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2, 2002, has many provisions similar to the President’s proposal. At that time, however,

the sponsors chose not to include the TSA in their proposal, preferring to focus more

narrowly on two areas of concern, border security and emergency preparedness and

response. Since the release of the President’s plan, Members from both parties have

expressed general support for the new department. Some Members, however, have

expressed interest in modifying the plan as the implementing legislation is written and

considered. Since the President’s plan was made public, few have expressed an absolute

opposition to any government reorganization that creates a new department or agency for

homeland security. The debate over which existing agencies or agency components will

be consolidated into a department of homeland security, however, has now begun in

earnest. The transfer of the TSA from the Department of Transportation to the proposed

department is part of this debate.1

After a brief summary of recent developments, this report discusses some broad

issues involved in creating a department of homeland security that are relevant to the

debate over including the TSA. It then provides a pro/con analysis of including the TSA

in a department similar to that proposed by the President. Finally, the report mentions a

number of other issues that could influence the debate.2

Recent Developments

On July 22, 2002, a modified version of the Administration’s proposal (H.R. 5005,

introduced by Representative Armey) emerged from a contentious markup meeting of the

House Select Committee on Homeland Security. H.R. 5005, as reported, transfers the

TSA to the proposed Department of Homeland Security. The bill requires that the TSA

be maintained as a distinct unit within the new Department for 2 years after enactment.

The bill also provides a process by which airports, that determine that they cannot meet

the December 31, 2002 deadline for the ATSA requirement that all checked baggage be

screened by explosive detection systems (EDS) can have up until December 31, 2003, to

execute their EDS implementation plans. In addition, the bill prohibits the new

department from receiving any funding from the various transportation trust funds. In the

Senate, Senator Lieberman has proposed an amendment in the nature of a substitute to S.

2452, the National Homeland Security and Combating Terrorism Act, which is more in

line with the Administration proposal than the original version of S. 2452 that was

marked up by the Senate Government Affairs Committee in June. The bill differs from

the House version significantly in that it transfers the authorities, functions, personnel,

1

Much of what follows draws from both a variety of written sources as well as informal

discussions with agency and industry officials. See also Homeland Security: the Presidential

Coordination Office, by Harold C. Relyea. CRS Report RL31148, and Homeland Security

Office: Issues and Options, by Rensselaer Lee. CRS Report RL31421. On the CRS Home Page

see, Office of Homeland Security and also Department of Homeland Security, by Harold C.

Relyea.

2

This report is not an overall analysis of President Bush’s Department of Homeland Security

proposal, H.R. 5005 or S. 2452. It is restricted to the purported advantages and disadvantages

of transferring the TSA to the new department. Broader organizational issues are discussed only

to the extent necessary for context. For a more detailed description of the bills see CRS Report

RL31513, Homeland Security: Side-by-Side Comparison of H.R. 5005 and S. 2452, 107th

Congress.

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and assets of the TSA to the Directorate of Border and Transportation Protection within

the new Department, but does not require that the TSA be maintained as a distinct entity.

The Senate bill also does not extend the EDS deadline or prohibit the use of transportation

trust fund revenues for the new Department.

Broader Issues

A number of broad issues form the context within which the debate over whether or

how to fold the TSA into the new department are worth mentioning as follows.

Appropriate Span of Control. A number of observers have commented that

there are probably 40 to 50 federal agencies with responsibilities that directly support the

war on terrorism. The debate over span of control can range from arguments that all

antiterrorist functions should be drawn together into one department to having a

coordinating entity that would facilitate communication and cooperation across federal

agencies. All of the legislative proposals, to date, fall in the middle of these two

extremes. S. 2452, as introduced, would have established a Department of Homeland

Security made up of all or parts of seven federal agencies and would also establish, in the

Executive Office of the President, a National Office for Combating Terrorism to

“coordinate, oversee, and evaluate the implementation and execution” of a “national

strategy for combating terrorism and the homeland security response.” The President’s

plan (H.R. 5005) draws the proposed department’s components from a broader range of

federal agencies and would also continue the operation of the Office of Homeland

Security and the Homeland Security Council. The TSA would be part of the proposed

department’s Division of Border and Transportation Security. The theme of effective

communication across departmental lines has been the focus of much of the post

September 11 antiterrorism policy debates. The reported version of H.R. 5005 as well as

the substitute amendment to S. 2452 now both agree with the broad outline of President

Bush’s proposal on institutional span of control. Current differences in degree of control

include differing budgetary flexibility and Civil Service protection provisions.

Security vs. Efficiency. In the United States, aviation, railroads, trucking, and

marine transportation operate, at least in part, on a commercial basis. Even airport

authorities, which are generally public entities, are nearly always managed like businesses.

Within the context of the security debate, this situation creates a tension between the

traditional mission of most transportation organizations--to facilitate the efficient

movement of people and goods--and the heightened priority of the security mission.

Airline and airport managers, in particular, have expressed concern that heightened

security measures could reach a point where travel and shipping by air could be

discouraged, leading to a period of prolonged financial losses, as well as loss of market

share to other modes of transportation. Law enforcement and security stakeholders

generally assert that, in the post-September 11 environment, security must be the highest

transportation priority, and argue that the public has shown a willingness to accept

security-related delays and “hassles.” To a great extent, the security vs. efficiency debate

was resolved in favor of security by passage of the Aviation and Transportation Security

Act (ATSA) in November 19, 2001.

Departmental Purpose. An underlying issue, which may be seen as being

parallel to the security vs. efficiency issue, is the historical purpose of the Department of

Transportation and whether it enhances or inhibits the security mission of the TSA.

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Historically, the DOT has seen its purpose as facilitating the movement of people and

goods. Some would argue that this places the DOT in tacit alliance with transportation

industries. For example, the views of commercial air carriers are seen as influential in

policymaking within the Federal Aviation Administration (FAA). During the ATSA

debate in the autumn of 2001, both the DOT and the Air Transport Association, which

represents the major air carriers, argued against shifting the responsibility for the

screening of passengers and baggage to the Department of Justice. In the end, Congress

established the TSA outside of the FAA, but within DOT. Some would still argue that,

even outside the FAA, but within DOT, the TSA will reflect a pro-industry perspective.

However, some air carrier executives, as well as some airport executives, have expressed

frustration based on their perception that the TSA’s focus is unbalanced, dominated by

a strict law enforcement view of transportation security, and lacking adequate concern for

the hassles and other inefficiencies that air travelers are facing.

Law Enforcement Perspective vs. Transportation Perspective. During

the process of forming the TSA and implementing ATSA, some airport as well as airline

executives have complained that TSA employees and contractors have shown an absence

of understanding and lack of concern for airport and air carrier methods of operation.

Some speculate that, in part, this as an outgrowth of a tension between the law

enforcement perspective of many of TSA’s recently hired former law enforcement

officials and the transportation industry perspective of airport and airline officials.

Transferring the TSA to a Department of Homeland Security

Prior to the release of the President’s proposal, there was little public debate

concerning a proposed transfer of the TSA to a new homeland security department. This

was probably because ATSA placed the TSA in DOT and the issue was initially settled

in the minds of many observers.3 Although the versions of H.R. 5005 and S. 2452, now

under active consideration, would both transfer the TSA to the proposed department,

some continue to express concern over the transfer of the fledgling agency, the timing of

the proposed transfer and its organizational implications.

Pro: Transfer the TSA to the Proposed New Department.

ATSA created the TSA and charged it with responsibility for the security

of all modes of transportation. Given that roughly one-third of all

terrorist attacks, world-wide, target transportation, a department of

homeland security would be incomplete without the TSA.

! Not including the TSA in the new department would give two

departments the responsibility for transportation security. Including the

!

3

The Senate-passed bill (S. 1447) would have shifted the screening of passengers and property

to the Department of Justice. The Federal Air Marshal program would have been administered

by the Secretary of DOT, but under guidelines prescribed by the Attorney General. The Housepassed version provided for the creation of the TSA, inside the DOT, but outside the Federal

Aviation Administration.

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TSA in a new department could be an opportunity to consolidate and

clarify the lines of authority.4

! International airports are to air transportation what border crossings are

to surface transportation. Not including TSA in a new homeland security

department would leave out a major component of border control.

! Historically, DOT, as an agency, has been the lead federal agency in

supporting transportation infrastructure building and facilitating safe and

efficient transportation. The agency has been responsive to air carrier

and airport concerns about the cost and delay implications of security

measures. Removing the TSA from the DOT would help keep the TSA

focused on security and make it less easily swayed by the profit concerns

of the transportation industries.

! The TSA is too big to be left out of the new department or left inside the

DOT. With TSA staffing estimates approaching 70,000 personnel,

leaving it out of a new homeland security department could in effect

establish the latter as a “rump” agency, leaving the largest homeland

security agency outside of its control. If left inside DOT, the TSA would

dwarf most other DOT agencies and divert the agency’s efforts away

from its traditional transportation mission.

! Leaving the TSA within the DOT endangers the budget of the remainder

of the DOT. The combination of the high funding priority for security

and the TSA’s escalating needs estimates could constrain spending on

other transportation needs. In this budgetary environment, for example,

the balances of the Airport and Airway Trust Fund could be siphoned off

for aviation security, leaving other aviation needs, such as spending for

increased airport capacity and air traffic control modernization, shortchanged.

Con: Do Not Transfer the TSA to the Proposed New Department.

The TSA is an agency under construction. It is facing enormous

challenges (of technology and personnel) as it works to meet the

ambitious timetable set forth in the ATSA. Shifting the agency to a new

department would disrupt its formation and delay its urgently needed

implementation. It would also weaken useful ties to other parts of DOT.

! In passing ATSA, Congress placed the TSA in the DOT. There is no

reason to replay a policy debate that Congress decided last November.

! The TSA is already under criticism from airline and airport industry

officials for not having a customer friendly mind-set. Shifting the TSA

out of the DOT can only exacerbate the “hassle factor” that passengers

face from redundant and multilayered security measures at airports.

! Effective transportation security requires an understanding of law

enforcement, transportation systems, and infrastructure. Shifting the

TSA out of the DOT would separate these components and would require

!

4

H.R. 4660 includes responsibility for elements of transportation security in two of its proposed

directorates, the Directorate of Prevention and the Directorate of Critical Infrastructure. This

language would probably need to be modified or removed from the bill if the TSA is kept out of

the proposed department, or there would be a conflict of authority over transportation security.

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hiring more staff in the new department to provide expertise that already

exists at DOT.

! Keeping the TSA in the DOT will help keep the agency focused on the

security element of transportation. It is no accident that ATSA, the major

security legislation passed in the aftermath of the September 11 attacks,

was entirely concerned with transportation security, and to remove that

concern from DOT is counterproductive.

! As mentioned earlier, the TSA’s budget and estimates of its personnel

needs have grown rapidly. Including the TSA in the proposed

department could overwhelm the latter, diverting its resources from

securing of U.S. sea ports and border crossings, improving emergency

response capabilities, and strengthening security coordination.

Related Unresolved Issues

Committee Jurisdiction. As part of the DOT, the TSA falls under the

jurisdiction of the House Transportation and Infrastructure Committee and the Senate

Committee on Commerce, Science, and Transportation. Should the TSA be incorporated

into a new department, this jurisdiction could change and be assigned to one or more other

committees. It is also uncertain which of the 13 appropriations subcommittees in either

the House or Senate would have or share jurisdiction over a new department, but it is

possible that the TSA or its components would shift to the jurisdiction of other

subcommittees.

How TSA Will Fulfill Its Role in Non-Aviation Transportation Security.

ATSA places the TSA in charge of the security of all modes of transportation. The Act

is, however, largely silent on the specifics of how the fledgling agency will assert its

authority over the security of the non-aviation modes of transportation. For example, the

role of the TSA in port security is unclear, given that both the U.S. Coast Guard and the

U.S. Customs Service are active in port security. Whether or not the TSA becomes part

of the proposed department and how the TSA will fulfill its role under ATSA in assuring

the security of non-aviation transportation, awaits further clarification.

What Will Be the TSA’s role in Border Security? Within the context of the

President’s proposal the TSA would be placed in the Border and Transportation Security

Division along with the Coast Guard, Customs Service, the Animal and Plant Health

Inspection Service, and the Border Patrol and other enforcement elements of the

Immigration and Naturalization Service (INS). The major federal players at U.S. pointsof-entry (POE), including international airports as well as land border crossings, are the

Customs Service and the INS. Whether the TSA will have a security role at U.S. POEs

has not been clarified. Should TSA become a player, its role, vis-a-vis the other federal

agencies at the border, would need clarification.

Labor Issues. Some are concerned that TSA’s more generous salaries relative to

the other agencies transferring to the Border and Transportation Security Division (BTS)

could become a contentious issue within the division. Would, for example, Customs and

INS salaries be adjusted? Another unresolved labor issue is TSA’s less restricted power

to hire and fire personnel.