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Significant Administrative Law Issues in Homeland and National Security

Significant Administrative Law Issues in Homeland and National Security 2003 Administrative Law Conference Francine J. Kerner TSA Chief Counsel November 7, 2003 Security remains TSA’s primary concern TSA philosophy is a layered security approach.

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Significant Administrative Law Issues in Homeland and National Security

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  1. Significant Administrative Law Issues in Homeland and National Security • 2003 Administrative Law Conference Francine J. Kerner TSA Chief Counsel November 7, 2003

  2. Security remains TSA’s primary concern • TSA philosophy is a layered security approach. • Passenger and Baggage Screening was never intended to be the sole method of providing security. • Passenger and Baggage Screening is our first line of defense. • Hardened cockpit doors, FAMS and armed pilots are some of the other layers of security. • Security must be balanced with customer service.

  3. Civil Enforcement Philosophy • Enforcement Actions are an important tool used by TSA to promote and achieve security by deterring non-compliance. ATSA §101 (adding 49 USC 114(f)(7)). • Through a progressive discipline approach, TSA will employ a range of enforcement tools––from counseling to administrative actions to civil penalty actions to address non-compliance. 49 USC 46301. • Civil penalties will be used to address egregious or chronic violations. Examples are access control and criminal background check violations. • TSA is in the process of preparing civil enforcement guidance, which when completed will be made available to the public.

  4. Perimeter Security Issues • There are currently no plans to transfer authority over the perimeter security area to TSA. • Airport Operators will retain responsibility for physically monitoring perimeter security. • TSA will continue to enforce perimeter security through the ASPs. ATSA §106, 49 USC 44903.

  5. Role of Federal Air Marshals • Transfer to another DHS component- BICE (Bureau of Immigration and Customs Enforcement) on November 2. • TSA will continue to work closely with BICE and the FAMS to provide seamless aviation security. • Role of FAMS on the ground is still under consideration but will need to be coordinated with BICE. • TSA still retains its AFSD for Law Enforcement and coordinates law enforcement role at the airport.

  6. Passenger Screening - CAPPS II • DHS and TSA are currently in the process of developing CAPPS II (computer assisted passenger prescreening system II) as a successor to the current CAPPS system run by the airlines. ATSA §136, 49 USC 44903(i)(2). • DHS has recently released an interim CAPPS II privacy notice in the federal register that responds to public comment sought by the TSA on a previously published notice.    • TSA is in the process of drafting a proposed rule requiring air carriers and computer reservation systems to provide passenger reservation information to TSA for the operation of CAPPS II. 

  7. Registered Traveler • TSA is looking into the feasibility and desirability of going forward with a “registered traveler” program in which participants will agree to allow positive identity verification to expedite screening. • The program will be in compliance with the Privacy Act. • TSA will continue to engage key government and industry stakeholders as partners in the development of a registered traveler program.

  8. Cargo Screening • TSA is using a threat-based, risk management approach similar to that taken in the container security arena, where all containers entering the country are screened and 100% of cargo determined to be “high-risk” is physically inspected. • To secure 100% of the cargo transported aboard passenger aircraft, TSA prohibits any cargo from “unknown” or “high risk” shippers from being placed aboard those aircraft. ATSA § 110(b)(2), 49 USC § 44901(a).

  9. Cargo Screening (continued) • TSA also ensures that any shipper wishing to transport cargo on passenger aircraft achieves “known” status through the TSA’s Known Shipper program. ATSA §110(b), 49 USC 44901(f). • TSA will employ information analysis tools to assist with pre-screening shipments. • To further this end, TSA is developing a cargo “pre-screening” database with specific criteria for flagging suspicious cargo. ATSA §110(b), 49 USC 44901(f). • TSA is working with the Bureau of Customs and Border Protection (BCBP) on this effort in order to capitalize on BCBP’s targeting initiatives at its National Targeting Center.

  10. Tort Claims • It is often not possible to determine whether a TSA screener damaged the checked baggage or whether the damage occurred during the course of the airline check-in process. • TSA is currently in discussions with the airline industry, including ATA to develop a process for sharing the costs of such claims.

  11. Ownership/Disposal of Passenger Checkpoint Equipment • TSA entered into no-cost agreements with the airlines/airports in February/March 2001 permitting TSA to use the security equipment. The airlines/airport under the terms of the agreement continue to maintain the equipment at TSA’s expense.

  12. Ownership/Disposal of Passenger Checkpoint Equipment (Continued) • TSA could take ownership of the equipment from the airport or airlines at no cost to TSA if the Secretary determines the equipment to be useful for performance of security screening of passengers and property at the airports. ATSA §101(g)(4). • TSA has not taken ownership of the equipment because of the age of the equipment and the potential maintenance costs associated with the equipment.

  13. HAZMAT at the Airport • TSA has hired SAIC to manage the collection and disposal of hazmat and other voluntarily abandoned materials at the airport. • First step is a 60 day survey period. • SAIC will not only dispose of the prohibited and hazardous items, it will do so in compliance with environmental laws and regulations. • The contract does not prevent TSA from continuing to use no-cost state and local disposal agencies when those exist. • Contract not $17 Million - but $2 million with options to extend.

  14. HAZMAT in Checked Baggage • TSA takes the position that the aircraft operator is responsible for resolving the issue of HAZMAT in passenger-checked baggage pursuant to its regulatory responsibility under the DOT regulations. • As a result, TSA is not removing HAZMAT from passenger baggage. TSA informs the air carrier that what appears to be HAZMAT has been discovered. The aircraft operator must resolve whether it is HAZMAT and whether it can be transported.

  15. LEO Reimbursable Agreements • TSA had terminated the MOAs and then provided a new model RA in June 2003 where airports presented sufficient justification for support of additional LEO requirements. • TSA met with representatives of ACI-NA and AAAE in mid August and subsequently issued a revised template Reimbursable Agreement on September 3, 2003. We are continuing to work on executing these agreements with approximately 284 airports. • Approximately 200 agreements have been executed and 81 more are in the process of being approved.

  16. General Aviation TSA is working closely with the General Aviation Coalition to ensure security mandates are based on threat analysis and risk management. ATSA §§ 114(f) & 132(b). TSA, in coordination with other Federal agencies, has placed restrictions on the airspace in the National Capital Region, e.g., prohibiting general aviation operations at Reagan National Airport and establishing security measures at three previously unregulated airports. 67 Fed. Reg. 7538. Temporary flight restrictions over major sporting events and nuclear power plants and the establishment of a database with NRC to track airspace violations relating to nuclear power plants.

  17. General Aviation (continued) New security requirements for operators of charter aircraft weighing more than 12,500 pounds. ATSA § 132(a). DOJ introduced the Flight Training Candidate Checks Program to conduct checks on aliens seeking U.S. certified training in the operation of large aircraft. ATSA § 113; 49 U.S.C. § 4439. TSA has partnered with AOPA in mandating all pilots carry identification while operating aircraft and implementing a “neighborhood watch” and hotline to report suspicious activity. In the future, the Civil Air Patrol may assist in security at GA airports. Launch of a pilot program in cooperation with NBAA to expedite corporate waivers for certain types of operations (e.g., international flights).

  18. Travel Without A Visa • The suspension action took effect at 11:00 a.m. on Saturday, August 2, 2003. • DHS and State are currently reassessing the program.

  19. USVISIT • TSA is assisting USVISIT (United States Visitor and Immigrant Status Indicator Technology) with its IT Procurement but is not in charge of the program. • Scanning equipment at international entry points will collect “biometric identifiers” along with standard identification information to verify the visitor's identity and compliance with visa and immigration laws. Exit confirmation will be added to the visitor's travel records to demonstrate compliance. • All data obtained from the visitor will be securely stored as part of the visitor's travel record and will be made available only to authorized officials and selected law enforcement agencies.

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