‘(e) Prohibition of Advance Notice to Security Screeners of Covert Testing and Evaluation-
‘(1) IN GENERAL- The Secretary of Homeland Security shall ensure that information concerning a covert test of a transportation security system to be conducted by a covert testing office, the Inspector General of the Department of Homeland Security, or the Government Accountability Office is not provided to any individual prior to the completion of the test.
‘(2) EXCEPTIONS- Notwithstanding paragraph (1)--
‘(A) an individual may provide information concerning a covert test of a transportation security system to employees, officers, and contractors of the Federal Government (including military personnel); employees and officers of State and local governments; and law enforcement officials, who are authorized to receive or directed to be provided such information by the Assistant Secretary of Homeland Security (Transportation Security Administration), the Inspector General of the Department of Homeland Security, or the Comptroller General of the United States, as the case may be; and
‘(B) for the purpose of ensuring the security of any individual in the vicinity of a site where a covert test of a transportation security system is being conducted, an individual conducting the test may disclose his or her status as an individual conducting the test to any appropriate individual if a security screener or other individual who is not a covered employee identifies the individual conducting the test as a potential threat.
‘(3) SPECIAL RULES FOR THE TRANSPORTATION SECURITY ADMINISTRATION-
‘(A) MONITORING AND SECURITY OF TESTING PERSONNEL- The head of each covert testing office shall ensure that a person or group of persons conducting a covert test of a transportation security system for the covert testing office is accompanied at the site of the test by a cover team comprised of one or more employees of the covert testing office for the purpose of monitoring the test and confirming the identity of personnel involved in the test under subparagraph (B).
‘(B) RESPONSIBILITY OF COVER TEAM- Under this paragraph, a cover team for a covert test of a transportation security system shall--
‘(i) monitor the test; and
‘(ii) for the purpose of ensuring the security of any individual in the vicinity of a site where the test is being conducted, confirm, notwithstanding paragraph (1), the identity of any individual conducting the test to any appropriate individual if a security screener or other individual who is not a covered employee identifies the individual conducting the test as a potential threat.
‘(C) AVIATION SCREENING- Notwithstanding subparagraph (A), the Transportation Security Administration is not required to have a cover team present during a test of the screening of persons, carry-on items, or checked baggage at an aviation security checkpoint at or serving an airport if the test--
‘(i) is approved by the Federal Security Director for such airport; and
‘(ii) is carried out under an aviation screening assessment program of the Department of Homeland Security.
‘(D) USE OF OTHER PERSONNEL- The Transportation Security Administration may use employees, officers, and contractors of the Federal Government (including military personnel) and employees and officers of State and local governments to conduct covert tests.
‘(4) IMPACT STUDY AND REPORT ON COVERT TESTING PROCEDURES-
‘(A) IMPACT STUDY- The Secretary of Homeland Security shall conduct a study of the impact of the implementation of this subsection on the Department of Homeland Security’s efforts to improve transportation security.
‘(B) REQUIREMENTS- The study under subparagraph (A) shall include an assessment of--
‘(i) the impact of the implementation of this subsection on personnel of the Department of Homeland Security;
‘(ii) the impact of such implementation on information sharing within the Department;
‘(iii) best practices for integrating the topic of covert testing into existing training and testing programs for personnel of the Department; and
‘(iv) the effectiveness of covert testing as a method to improve security.
‘(C) REPORT- Not later than 270 days after the date of the enactment of this subsection, the Secretary shall submit to the Committee on Homeland Security of the House of Representatives and the Committee on Homeland Security and Governmental Affairs of the Senate a report that contains--
‘(i) the results of the study under subparagraph (A);
‘(ii) recommendations for changes to the training of personnel of the Department that are necessary to ensure compliance with the requirements of this subsection; and
‘(iii) recommendations to improve the effectiveness of the implementation of this subsection.
‘(5) DEFINITIONS- For purposes of this subsection, the following definitions apply:
‘(A) APPROPRIATE INDIVIDUAL- The term ‘appropriate individual’, as used with respect to a covert test of a transportation security system, means any individual that--
‘(i) the individual conducting the test determines needs to know his or her status as an individual conducting a test under paragraph (2)(B); or
‘(ii) the cover team monitoring the test under paragraph (3)(B)(i) determines needs to know the identity of an individual conducting the test.
‘(B) COVERED EMPLOYEE- The term ‘covered employee’ means any individual who receives notice of a covert test before the completion of a test under paragraph (2)(A).
‘(C) COVERT TEST-
‘(i) IN GENERAL- The term ‘covert test’ means an exercise or activity conducted by a covert testing office, the Inspector General of the Department of Homeland Security, or the Government Accountability Office to intentionally test, compromise, or circumvent transportation security systems to identify vulnerabilities in such systems.
‘(ii) LIMITATION- Notwithstanding clause (i), the term ‘covert test’ does not mean an exercise or activity by an employee or contractor of the Transportation Security Administration to test or assess compliance with regulations under title 49 of the Code of Federal Regulations.
‘(D) COVERT TESTING OFFICE- The term ‘covert testing office’ means any office of the Transportation Security Administration designated by the Assistant Secretary of Homeland Security (Transportation Security Administration) to conduct covert tests of transportation security systems.
‘(E) EMPLOYEE OF A COVERT TESTING OFFICE- The term ‘employee of a covert testing office’ means an individual who is an employee of a covert testing office or a contractor or an employee of a contractor of a covert testing office.’.
U.S. Congress - Text of H.R.5909 as Referred in Senate Catching Operational Vulnerabilities by Ensuring Random Testing Act of 2008
