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

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 law-
enforcement 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 House-
passed 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, short-
changed.
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. points-
of-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.