Presentation title slide 42 pt Times New Roman, White

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

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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 toolsfrom
  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.

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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.

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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.

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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. 

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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.

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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).

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Cargo Screening (continued)

• TSA also ensures that any shipper wishing to
  transport cargo on passenger aircraft achieves
  known status through the TSAs 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 BCBPs targeting initiatives at
  its National Targeting Center.

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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.

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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
  TSAs expense.

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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.

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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.

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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.

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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.

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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.

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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).

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Travel Without A Visa

• The suspension action took effect at 1100 a.m.
  on Saturday, August 2, 2003.
• DHS and State are currently reassessing the
  program.

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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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