"Gridlock in Washington": It’s a familiar – and often accurate – refrain in newspapers, magazines, and television news. But it would be hard to apply that phrase to Congress’s reaction to the attacks of September 11. In short order, Congress passed a stabilization bill providing financial support to air carriers, created a massive new agency within the Department of Transportation (the Transportation Security Administration, or "TSA"), and imposed a sweeping new background check requirement on the motor carrier industry. These new laws, along with major regulatory initiatives now under consideration, will change transportation security for decades to come.

Congress enacted the Aviation and Transportation Security Act in November 2001, making far-reaching changes in the way that transportation security is carried out. In the most immediate and visible change, the Security Act transfers control of civil aviation security (for cargo as well as passenger operations) from the FAA to the TSA, and federalizes the entire screener workforce. To meet this responsibility, the TSA is gradually replacing the private security screening companies with over 30,000 of its own screeners at every commercial airport in the nation. These screeners will be much better paid than their predecessors and will undergo far more rigorous training. (The Security Act requires the federalization of security screening to be completed by November 19, 2002.) The TSA is also hiring and deploying federal law enforcement officers and security directors at these airports.

All in all, when the agency is fully staffed in late 2002 or early in 2003, it will have over 50,000 employees, making it the single largest law enforcement agency in U.S. history.

The Security Act greatly expands the number of airport and airline workers who must have a background criminal records check in order to have access to the ramps and other secure areas of an airport, and authorizes the TSA to coordinate the vetting of background check information with other law enforcement agencies, such as the FBI. The Security Act also requires the TSA to develop a system to screen and inspect the cargo carried in all-cargo aviation operations, although there is no deadline for implementing such a system, and the TSA has not yet acted on this requirement.

In addition, the TSA has instituted tighter regulations concerning indirect air carriers (or "IACs") and unknown shippers. Under these rules, combination passenger/freighter carriers (but not all-cargo carriers) must provide the FAA with a plan for ensuring the continued segregation by the carrier of cargo from known shippers from that of unknown shippers, in order to ensure that cargo from unknown shippers is only loaded onto all-cargo aircraft. The purpose is to add a measure of security for cargo that is carried in the belly of passenger aircraft. To implement this, a combination passenger/cargo carrier is required to visit each IAC that it wishes to be covered by the arrangement, examine the IAC's operations, and determine that the IAC is segregating known from unknown shipper shipments. The IAC may then tender shipments to the combination carrier for transportation by the appropriate aircraft.

As mentioned above, the TSA has responsibility for security for other modes of transportation, including train, bus, truck, maritime, and pipeline. As yet, the agency has taken few steps in these areas, concentrating instead on the aviation sector that is the focus of the Security Act. However, there have been some significant developments.

Under a another federal statute called the U.S.A. Patriot Act, background checks are now required for all drivers of motor vehicles transporting hazardous materials (and there are some three million such drivers on the road today).

When a state receives a requests for a commercial driver’s license with a hazardous materials endorsement, the state will now submit the request to the U.S. DOT, which in turn sends the request to the U.S. Justice Department for a background check of the applicant. If the Justice Department background check is satisfactory, then the DOT will conclude that the applicant does not pose a "security risk" and will authorize the state to issue a commercial driver’s license with a hazmat endorsement. Major issues about this law remain unresolved, such as whether drivers may continue to work while background checks are pending and whether employers will have access to the results of those checks. Legislation intended to clear up these and other issues has been introduced in Congress, but its prospects for passage this year are dim.

In addition, the DOT is moving toward mandating a national transportation worker identification card (a "TWIC") that would be used by transportation workers in all modes. The TWIC as currently envisioned by the DOT working group would apply to any person who has unescorted access to protected areas of a transportation facility or who has access to, or control of, a transportation conveyance. The TWIC would include the requirements of commercial driver’s licenses currently issued by the various states. Further, the DOT working group is considering incorporating biometric identifiers, such as fingerprints, into this card and requiring TWIC applicants to pass an FBI criminal background check. The DOT working group will make its recommendations to DOT Secretary Mineta in mid-April 2002.

The Congress is also considering a Port and Maritime Security Act that, although less comprehensive than the Security Act described above, would effect changes in maritime security similar to those made in aviation security by the Security Act. For instance, the bill pending in the Congress would tighten seaport security by requiring the DOT to: issue regulations calling for each major U.S. seaport to develop its own maritime facility security program; conduct seaport security vulnerability assessments and periodically conduct exercises to verify the effectiveness of each seaport’s security plan; create an international seaport assessment program; and develop standardized training for federal maritime security personnel to be stationed at seaports. The bill would also require the U.S. Customs Service to collect extensive new information concerning both passengers and cargo from vessels arriving and departing U.S. ports. This legislation may well be enacted in 2002.

As these and other developments move from proposals under consideration to binding legal requirements, and as the TSA continues to implement the Security Act, shippers and carriers will face numerous legal and compliance issues that, prior to September 11, would have been unthinkable.