The Aviation and Transportation Security Act: 

The Law and Ongoing Challenges________________________

Author: Joel Bacon, (703) 575-2478

 

What's at Issue?

Shortly after the terrorist attacks of September 11, Congress set out to fundamentally change security at the nation’s airports.  The result of those efforts was the Aviation and Transportation Security Act, which was signed into law by President Bush on November 19, 2001.  In addition to creating a new agency within the Department of Transportation – The Transportation Security Administration – to oversee airport and transportation security, the law made numerous changes that will have a profound effect on the way airports operate for the foreseeable future. 

 

While many – although not all – of the strict deadlines established in the law have come and gone, a number of challenges remain.  Billions of dollars in resources are needed to implement long-term solutions for incorporating explosive detection systems into baggage systems away from crowded terminal lobbies, to reimburse airports for meeting TSA mandated security expenses and to address other security needs from access control to law enforcement.  In addition, the TSA and airports have yet to settle into the cooperative and collaborative relationship that many airport executives hope to have as we move forward. 

 

This Issue Brief is aimed at providing an overview of the key elements of the Aviation and Transportation Security Act and highlighting some of the challenges that airports and the federal government face moving forward into the future.     

 

Aviation and Transportation Security Act (P.L. 107- 71)

 

Key Provisions:

Airport Security Expenses

·       Authorizes (without direct appropriations) $1.5 billion in FY02 and FY03 to allow airports to meet FAA mandated security expenses.

·       Also makes the $1.5 billion available (if an appropriation can be obtained) to on-airport parking lots and vendors of on-airfield direct services to air carriers for "direct costs incurred to comply with new, additional, or revised security requirements."

·       Contains a non-binding "Sense of the Congress" provision that suggests airports should sit down with concessionaires to discuss adjustments of the rent of tenants to account for losses in revenue by the incurred tenant. It also suggests that airlines should sit down with airports to discuss "payment of applicable rates, charges, and fees."

·       Gives all airports AIP/PFC flexibility in FY02 to pay for any additional security-related activity required by law or by the Secretary after September 11, 2001, and before October 1, 2002.

·       Gives airports in FY02 flexibility to use AIP/PFC revenues for payments for debt service (at the discretion of Secretary).

·       Gives non-primary airports affected by the closure of Class B airspace flexibility to use AIP funding in FY 2002 for any activity, including operational activities.

·       Eliminates the local match for security related operational expenses paid for by AIP funds at all airports.

·       Eliminates the requirement for competition plans for FY02 for AIP grants or PFC application if the grant or fee is used to improve security at the airport.

·       Replacement of baggage conveyor systems and reconfiguration of terminal baggage areas deemed necessary to install bulk explosive detection devices are made AIP-eligible.

·       For FY 03, airports are allowed to use either 2000 or 2001 enplanement numbers for entitlement calculations. Expedites the approval of PFC requests aimed at paying for security-related operational expenses.

Airport Concerns:

It is clear that new federal resources must accompany federal requirements.  Airport operators can no longer absorb additional security costs without serious consequences to capital improvement programs and other airport operations.  Airports are already stretched thin trying to deal with a number of unfunded mandates imposed on them by the federal government.  In addition, the Airport Improvement Program has already been tapped heavily for security-related items, with more than $560 million in FY 2002 devoted for security, up from $57 million the previous year.  Without incremental federal assistance, airports would have no choice but to lay off part of the burden on our partners in the airline industry which is not a viable option given their dire financial situation.   

 

The case for federal support is evident.  The attacks of September 11 were more than an attack on the aviation system; they were an attack on our nation.  The threats that exist today are a matter of national security, and the federal government must take an active role in meeting airport security requirements.

 

For airports, the situation was deteriorating before 9/11 and has grown much worse in the aftermath.  Many of the mandates issued by the FAA and TSA to provide additional law enforcement personnel, enhance airport surveillance and revalidate all airport-issued identification, for example, remain unfunded.  In fiscal year 2002, Congress appropriated $175 million to reimburse airports for a portion of these costs.   As part of the process of applying for those funds, airports collectively submitted requests for $444 million in expenses that the FAA deemed acceptable, leaving a roughly $270 million gap that airports have been forced to absorb.  An additional $150 million was provided for reimbursement as part of the FY 2002 supplemental spending bill, but those funds evaporated when the President rejected the “contingent emergency” portions of the bill.

Checked Baggage

·       Requires that a system must be in operation to screen all checked baggage at all airports in the United States as soon as practicable but not later than 60 days after the bill is enacted into law (January 18, 2002).

·       Requires the Under Secretary of Transportation for Security to take the necessary steps to ensure that explosive detection systems are deployed as soon as possible to ensure that airports have sufficient explosive detection systems to screen all checked baggage no later than December 31, 2002, and that as soon as such systems are in place at the airport, all checked baggage at the airport is screened by those systems.

·       If explosive detection equipment at an airport is unavailable, all checked baggage is screened by alternative means.

·       By January 18, 2002, the Under Secretary shall require alternative means for screening any piece of checked baggage that is not screened by an explosive detection system. Such alternative means may include one or more of the following:

1.    A bag-match program that ensures that no checked baggage is placed aboard an aircraft unless the passenger who checked the baggage is aboard the aircraft; 

2.    manual search;

3.    search by canine explosive detection units in combination with other means; and

4.    other means or technology approved by the Under Secretary

·       A system must be in operation to screen, inspect, or otherwise ensure the security of all cargo that is to be transported in all-cargo aircraft in air transportation and intrastate air transportation as soon as practicable.

Update:  Congress in late 2002 approved legislation establishing the department of homeland security that included a provision giving TSA limited flexibility in meeting the December 31, 2002 deadline for having all baggage screened by explosive detection equipment.  In simple terms, the provision gave TSA authority to use other means for screening baggage until 12/31/03 at a limited number of airports where it would have been impossible to meet the 12/31/02 deadline to have all baggage screened by electronic means. 

Airport Concerns:

As anyone who recently has traveled through airports knows, most of the explosive detection equipment procured by TSA to screen checked baggage currently sits in already crowded airport terminal areas, where it was dumped in order to meet the 12/31/02 deadline.  The longer the existing “temporary” arrangement persists, the bigger the security threat to waiting passengers and the more inconvenienced they are as they attempt to check baggage and board flights.   

 

The estimated costs of moving the equipment “in-line” with baggage systems out of the way of check-in areas are staggering.  Estimates vary from $3 billion to $5 billion and up to complete the extensive work required to make space available and to create new space in airports for the truck-sized EDS machines, to create and expand baggage make-up facilities, to integrate the various systems, to reinforce existing floors,and other necessary projects.  While it might be easier from a funding perspective to simply ignore these costs and try to “get by,” with leaving the machinery where it now sits, doing so would have serious ramifications on security and passenger convenience flows and processing.  The passenger’s difficulties in dealing with today’s security mazes, the latter of which remain extremely important given the current state of the aviation industry and the need to eliminate the passenger “hassle factor.”   

 

To its credit, the Congress has been willing to step forward and begin providing resources to install EDS equipment.  As part of the 2002 supplemental spending bill (P.L. 107-206), $738 million was appropriated specifically for that purpose.  Another $265 million was included in the fiscal year 2003 omnibus appropriations bill (P.L. 108-7).    

 

The 2003 omnibus spending bill also included another tool that airports hope will be helpful in providing additional resources for EDS installation.  The program, modeled after the current FAA Letter of Intent process, is aimed at allowing airport operators to leverage their own resources to pay for the construction necessary to accommodate EDS equipment.  The program would allow interested airports to provide immediate funding for key projects with a promise that the federal government would reimburse the airport for those expenses over several years.  This would maximize the use of limited federal resources and ensure that key construction projects get underway as soon as possible. 

 

Airports remain concerned about the possibility of using Airport Improvement Program funds for EDS installation and other pressing security needs.  More than $560 million in AIP for FY 2002 was used for security.  That is $560 million that was not used for other important safety, capacity, renewal and noise-mitigation projects at airports.  TSA and FAA officials have publicly announced their intention to rely on AIP in fiscal year 2003 once again to meet security requirements. 

 

While using some AIP funds has been helpful to some airports in the short-term, it would be incredibly short-sighted to rely on AIP funding for future security requirements.  The events of September 11 have taken some focus away from the issue of airport capacity, but it is clear that serious needs remain. Many airports were feeling the strain of congestion before the current downturn and FAA projects passenger traffic is expected to grow significantly, from its current level of 680 million to one billion within the next decade. Cargo and general aviation operations will likely continue to skyrocket. Airports’ capital investment needs for renewal, modernization and security-related improvements continue to grow, unabated. 

Security Screening

·       After one-year transition, all screeners to be federal employees; DOT to oversee the screening process.

·       DOT is required to assume existing contracts between the airlines and private screeners as soon as possible but not later than 90 days after enactment (February 17, 2002). Contracts for existing screeners can be extended for up to six months following that time and DOT could extend the contract an additional three months if necessary to continue screening. DOT may also authorize additional federal law enforcement, National Guard, and other personnel immediately to address aviation security needs.

·       Screeners would not be able to strike or participate in work stoppages and can be fired at the discretion of DOT.

·       After one year, five airports – one in each "risk category" – would be able to participate in a pilot program in which private contractors could be used instead of federal employees to screen passengers.

1.    Airports interested in the pilot program would file an application with the Under Secretary for Transportation Security, who would in turn select the five airports.

2.    Under the pilot program, screening would be carried out by screening personnel of a qualified screening company under a contract between the screening company and the Under Secretary. Screeners and the screening company would be subject to the higher standards set forth in the bill.

3.    The Under Secretary could terminate such contracts if the private screening company fails to comply with government standards.

4.    Participation would be limited until the end of the third year after enactment, unless the airport operator elected to continue with the arrangement.

·       Two years following transition period, all airports will have the option of either continuing to use federal screeners or requesting the government to contract with private contractors instead. Airports interested in the opt-out could submit an application to the Under Secretary requesting that the screening be carried out by a qualified screening company under a contract with DOT.

·       Airports WOULD NOT have the option of assuming the screening functions themselves.

·       All screening shall be supervised by uniformed federal personnel.

·       At least one law enforcement officer is required at each airport security screening location and additional deployments may be required at the 100 largest airports.

·       Under Secretary to establish position of Federal Security Manager at each airport, who will oversee screening of passengers and property at the airport.

·       The new screeners will be paid for -- in part -- by a $2.50 fee imposed on passengers for each flight segment with no more than $5.00 per one-way trip. Air carriers would also be required to pay fees up to the amount they paid to screen passengers in calendar year 2000. An authorization of funds is also provided to meet any other needs not met by the passenger and carrier fees.

 

Airport Concerns:

Law Enforcement:  In addition to requiring screeners and screener supervisors at all passenger screening checkpoints, the Aviation and Transportation Security Act requires at least one law enforcement official (LEO) to be present and even more than one LEO at the 100 largest airports.  The law also requires additional federal law enforcement resources to help secure airport perimeter areas. 

 

Prior to the passage of ATSA, airport and local law enforcement were responsible for law enforcement activities at airports and were required to respond to incidents at screening checkpoints within a time certain.  With the passage of ATSA, a law enforcement presence was required at all security screening checkpoints.  While the National Guard initially fulfilled this requirement, state and local law enforcement officials have done so since the Guard was removed from airports last May.  They have done so with the understanding that they would be reimbursed by the federal government for meeting this new federal requirement. 

 

Airports was and local governments, traditionally, have performed law enforcement duties throughout airports. It is an effective and efficient model and it only stands to reason that this arrangement should be allowed to continue, with the local forces meeting what is now essentially a federal as well as local requirement.  Ideally, checkpoint law enforcement officers would be given the flexibility to move beyond their fixed stations in order to both make better use of  personnel resources and to ensure a broader, more comprehensive and more effective approach to security, provided they can respond to a checkpoint incident in a time certain as necessary. 

 

Update:  The fiscal year 2003 omnibus bill included $250 million to reimburse state and local entities for providing law enforcement at screening checkpoints and provisions allowing for the continued use of state and local law enforcement officers on a voluntary; and reimbursable basis at screening checkpoints and a modification of the “fixed post” requirement

 

Airport Perimeter Access Security

·       DOT to consult with airport operators and law enforcement on possible deployment of additional personnel at airport secure areas. Federal law enforcement personnel may be used in this capacity.

·       DOT to require as soon as practicable screening of all individuals, goods, property, vehicles, and other equipment to airport secure areas.

·       DOT required to provide technical and financial support to small and medium airports (all but large hubs) to enhance their security operations.

·       Provides for pilot program at no fewer than 20 airports to test and evaluate new and emerging technology to strengthen access control.

·       Within six months, DOT shall conduct an assessment and make recommendations to airport operators with regards to commercially available measures or procedures to prevent access to secure areas.

 

Airport Concerns:

 

Federal Law Enforcement:  ATSA allows for additional federal law enforcement resources to help secure airport perimeter areas.  Airports believe that they should continue to be responsible for maintaining perimeter security. Providing perimeter security is inherently an airport responsibility and there is no reason -- security-related or financially -- why TSA should assert any unique interest in securing it.  AAAE and ACI-NA have urged Congress to ensure that airports continue to control the perimeter around their facilities. 

 

Access Control:  In addition to continued vigilance from airport operators and a greater law enforcement presence at access control points, technology offers great promise in better policing access to key points throughout an airport.  The pilot program for at least 20 airports to test and evaluate new and emerging technologies for providing access control and other security protections for closed or secure areas of the airport is important and should be fully utilized.  Provisions in the law that provide technical and financial assistance to small- and medium-hub airports to improve access control at smaller facilities are also important.      

 

Use of Technology:  To this point, much of the debate in Congress on aviation security has largely focused on those responsible for screening passengers and their carry-on baggage, cockpit security and federal air marshals. While appropriate and necessary, we must also look to new technology to ensure that the hijackings and terrorist attacks that occurred on September 11 will not happen ever again.

 

Just a few days after the terrorist attacks, Secretary Mineta formed two teams to examine ways to improve airport and aircraft security. The Rapid Response Team on Airport Security concluded that new technologies must be deployed more widely to augment aviation security.  Many remain convinced that there is an urgent need at minimum to establish centralized databases for both trusted travelers and industry workers that will provide for the continuous vetting of the hundreds of thousands of individuals who frequently travel or who work within the aviation system.  There are a number of additional applications for new technology to enhance perimeter security and access control, improve baggage and passenger screening.

300-Foot Rule

The Law:

·       The law allows airport operators to consult with state or local law enforcement authorities to determine whether vehicles should be permitted to park within 300 feet of an airport terminal.

·       If the airport operator determines that sufficient safeguards are in place and so certifies in writing to the Under Secretary of Transportation for Security, then the 300-foot rule shall not apply at the airport unless the Under Secretary notifies the airport operator that the safeguards do not adequately respond to specific security risks and that the restriction must be continued in order to ensure public safety.

·       After receiving a certification from the airport operator, the Under Secretary has a certain amount of time in which he may notify/overrule an airport operator. The Under Secretary has 15 days to notify a non-hub airport, 30 days for a small hub airport, 60 days for a medium hub airport, and 120 days for an airport that had at least one percent of the total annual enplanements for the most recent calendar year for which data is available.

Airport Concerns:

While some progress has been made in giving airport operators more authority to address the circumstances at their facilities, parking remains an area of concern for airports. There are several hoops for airports to jump through for approvals of parking plans, and serious questions remain at some bigger airports as to how the new system, which is based on Homeland Security threat levels, will operate and be funded.  Again, these types of problems could be eliminated if only the federal government would recognize the public nature of airports and allow them to develop plans that best serve local circumstances.  The federal government does not dictate to local governments how to protect shopping malls, office buildings, museums, or sports stadiums.  What public purpose is served by treating airports differently?    

 

Related Links:

 

February 5, 2003 Statement of Chip Barclay on behalf of AAAE and ACI-NA before the Senate Aviation Subcommittee for a hearing on airport security:

http://commerce.senate.gov/~commerce/press/03/barclay020503.pdf

 

Hearing Report – February 5, 2003 Senate Aviation Subcommittee Hearing on Airport Security:

http://airportnet.org/secure/federal/hearings/2003/HR0205SenAvSub.htm