Is TSA Administrator Pistole Ignoring An Act Of Congress?

The Transportation Security Administration (TSA) has frequently found itself pushing the boundaries of its original mission and facing criticism for its actions. A few days ago however the TSA pushed a new boundary … that of publicly stating it was ignoring an Act of Congress.

To make matters more complex, TSA Administrator John Pistole is publicly thumbing his nose at the Act of Congress that created the Transportation Security Administration.

On the 19th of November 2001 Public Law 107-71, the Aviation and Transportation Security Act, was enacted as an Act of Congress, and signed into law by President George W. Bush “to improve aviation security.

Under the Aviation and Transportation Security Act the Transportation Security Administration was created and other standards for airport and aviation security were made into the law of the land.  These laws may not be ignored by appointed administrators who disagree with them …

… last week TSA Administrator Pistole, a former attorney, seems to have forgotten how laws work and that in his position he cannot override an Act of Congress simply before he disagrees with it.  Following the TSA’s rejection of Springfield-Branson National Airport’s (SGF) request to “opt out” of TSA passenger screening under the Screening Partnership Program, Administrator Pistole issued this statement:

Shortly after beginning as TSA Administrator, I directed a full review of TSA policies with the goal of helping the agency evolve into a more agile, high-performing organization that can meet the security threats of today and the future. As part of that review, I examined the contractor screening program and decided not to expand the program beyond the current 16 airports, as I do not see any clear or substantial advantage to do so at this time. The airports that currently use contractor screening will continue to be regulated by TSA and required to meet our high security standards.”

While a TSA Administrator has the discretion to deny an airport’s request to participate in the Screening Partnership Program, the Administrator cannot preemptively refuse to review each airport’s request to participate in the Screening Partnership Program. Administrator Pistole may not see “any clear or substantial advantage” to expanding the Screening Partnership Program, however the United States Congress created a law that allows airports the right to opt out and his inability to see “any clear or substantial advantage” is problematic and the sign of someone who is not looking at all the angles of the Screening Partnership Program.

Regardless of whether of not Administrator Pistole sees “any clear or substantial advantage” he might want to dust off his copy of the Aviation and Transportation Security Act and turn to Page 16. On page 16 of  Public Law 107-71 he will find § 44920 – Security screening opt-out program. §44920 of Public Law 107-71 details an airports ability to opt-out and the guidelines for a private security company to handle airport security duties.

The details of §44920 read as follows:

Ԥ 44920. Security screening opt-out program

‘‘(a) IN GENERAL.—On or after the last day of the 2-year period beginning on the date on which the Under Secretary transmits to Congress the certification required by section 110(c) of the Aviation and Transportation Security Act, an operator of an airport may submit to the Under Secretary an application to have the screening of passengers and property at the airport under section 44901 to be carried out by the screening personnel of a qualified private screening company under a contract entered into with the Under Secretary.

‘‘(b) APPROVAL OF APPLICATIONS.—The Under Secretary may approve any application submitted under subsection (a).

‘‘(c) QUALIFIED PRIVATE SCREENING COMPANY.—A private screening company is qualified to provide screening services at an airport under this section if the company will only employ individuals to provide such services who meet all the requirements of this chapter applicable to Federal Government personnel who perform screening services at airports under this chapter and will provide compensation and other benefits to such individuals that are not less than the level of compensation and other benefits provided to such Federal Government personnel in accordance with this chapter.

‘‘(d) STANDARDS FOR PRIVATE SCREENING COMPANIES.—The Under Secretary may enter into a contract with a private screening company to provide screening at an airport under this section only if the Under Secretary determines and certifies to Congress that—

‘‘(1) the level of screening services and protection provided at the airport under the contract will be equal to or greater than the level that would be provided at the airport by Federal Government personnel under this chapter; and

‘‘(2) the private screening company is owned and controlled by a citizen of the United States, to the extent that the Under Secretary determines that there are private screening companies owned and controlled by such citizens. ‘‘(e) SUPERVISION OF SCREENED PERSONNEL.—The Under Secretary shall provide Federal Government supervisors to oversee all screening at each airport at which screening services are pro- vided under this section and provide Federal Government law enforcement officers at the airport pursuant to this chapter.

‘‘(f) TERMINATION OF CONTRACTS.—The Under Secretary may terminate any contract entered into with a private screening company to provide screening services at an airport under this section if the Under Secretary finds that the company has failed repeatedly to comply with any standard, regulation, directive, order, law, or contract applicable to the hiring or training of personnel to provide such services or to the provision of screening at the airport.’’

(b) CLERICAL AMENDMENT.—The analysis for such subchapter is amended by adding after the item relating to section 44918 the following:

‘‘44919. Security screening pilot program.

‘‘44920. Security screening opt-out program.’

There have been many times when the TSA has faced public and political wrath for their actions. To date, the TSA’s actions, while questionable, have been legal … however this action does not appear to be legal. In the United States we have law and those sworn to protect them must uphold these laws.  As a former attorney and former Deputy Director of the Federal Bureau of Investigation I would expect that TSA Administrator Pistole has a personal ethical duty to see that he laws of the United States are upheld and that the agency he is charged with leading does not deviate from the law.

Aviation security in the United States is going in the wrong direction, being reactionary, rather than visionary. The lack of recourse from airports regarding problems in TSA security is problematic. The lack of options in choosing a better airport security procedure and experience impacts the security of the aviation industry and the revenue of airports and airlines, an industry with millions of employees in the United States.   The TSA needs an open mind, not a closed mind … and it needs to follow the law just like everyone else.

Happy Flying!

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Comments

  1. The TSA is a big bully. The regime is intimidating airports and airlines to tow their line. The airports and airlines are dodging the controversy about the TSA’s recent intrusion into privacy by claiming that the tyrannical security measures are OPTIONAL. When will the Jedi Master of the TSA decide one day that body scans are not optional? They do not believe in the law, anyway – as this recent action demonstrates.

    http://redbloodedamericanboy.com/2010/12/15/southwest-airlines-wimps-out-about-full-body-scanners/

  2. The first line says it all: “The Under Secretary may approve any application submitted under subsection” Which also means they may not.

    “The lack of recourse from airports regarding problems in TSA security is problematic. The lack of options in choosing a better airport security procedure and experience impacts the security of the aviation industry”

    Whether there is a private security company or federal employees doing the screening, the procedures are still those of the TSA. Having a private company answering to the airport brings the problems back to when the airlines controlled the checkpoint security. The importance becomes getting the passenger through the checkpoint as quick as possible at the sacrifice of security. Many airports think Opting Out will give them the the ability to do away with Advanced Image Technology and do things their way. It does not and I believe Administrator Pistole is sending this message.

    There needs to be an independent agency separate from the interest and finances of the airport and airlines. This is the TSA.

    As with any agency there are customer service difficulties which the TSA does work on despite the thoughts of many.

  3. Highway,

    Yes, the TSA may approve or reject an application, however Administrator Pistole is executing what is a preemptive rejection on applications. An application must be judged on its merits, and that is not what is being done by the TSA at this time.

    I am aware that the TSA has worked on its ‘customer service’ perception, however it is something that cannot be managed by the TSA internally … it is something the TSA needs to work on with airports as partners, rather than ignoring or antagonizing airports.

    I agree, there does need to be an independent agency, but that would create further bloat in an already bloated governmental system. The standards under the FAA for private contractors was higher than those in place today with the TSA, or at least those allowed to exist according to tests of the system.

    Happy Flying!

    -Fish

  4. The law is clear, in section (b) the under-secretary may approve an application. There is no obligation for the secretary to review or even open the application before denying it. Congress has delegated sole discretion to the under-secretary, and didn’t even include a decision review provision.

    Your outrage while legitimate, has no basis in law.

  5. Colpuck,

    The fact is this … the TSA has the obligation to review each application and make a decision on each applications merits. By stating the TSA will not accept further applications is to cut off this process and not deny airports the ability to present their applications based on its merits.

    For example, should an airport such as BWI decide it wants to seek out Covenant Security, who is the security contractor at San Francisco Int’l Airport, and apply to Opt Out citing Covenant Security’s experience and excellent track record in both meeting TSA guidelines and in providing a superior passenger experience, the TSA should not make a pre-determined decision to deny that application.

    Happy Flying!

    -Fish

  6. I’m with Fish on this one. The law clearly says that you can apply. While Postile doesn’t outright say he will reject any application, he certainly does imply it.

    The problem is that he’s rejecting them because he doesn’t see an advantage. Perhaps if he reviewed some applictions he would have the opportunity to see an advantage. Unless he’s afraid someone else will do a better job…

  7. Flyingfish,

    There is no provision in the law that says the DHS through the under-secretary has to evaluate the merits of an application. In fact, the states that under-secretary has the full authority to grant or deny applications at his or her will.

    What counts as “may grant” review? Does he have to open the application? Does he have to read it? Does he have to look at it?

    The only thing we do know is that congress did not write in a standard for evaluation of an application. The only thing we and the courts could assume from that is congress chose to grant the under-secretary full authority to grant or deny applications at his or her pleasure.

    Your inference of standard to which the applications should be evaluated is a nice thought. But if that standard were to exist it would re-write the statue to something like “the under-secretary will grant applications where the following conditions are met.” However, we know the statute does not say that.

    I dislike the TSA as much as the next person, maybe more so as I have seen them personally exercise authority outside their mandate. However, I am compelled to agree with the under-secretary’s reading of the statute. The man is a lawyer and he has the correct reading of the law. Our bitterness will not change that. Once again the fact that congress cannot write legislation has hosed us all.

    Sorry man,
    Colpuck

  8. Colpuck

    I do not dislike the TSA, nor do I like the TSA. The TSA is what it is … and other lawyers read Admin Pistole’s comments as prior refusal before a case can be brought by an airport. They interpret this to be a violation of the law.

    We’ll see how this plays out with The Congress.

    Happy Flying!

    -Fish

  9. When I first read his reason for rejecting further expansion of independent security operations, it made sense to me. Pistole is a political appointee. This is his power base. When airports opt-out of TSA staff (even though they must abide by TSA regulations), it diminishes Pistole’s power. He’s just covering is own interests; Congress be damned.

  10. While I strongly wish the administrator would reconsider, your reading of the law is very flawed.

    This does not give the airports the “right to opt out.” It only gives them the right to apply. And it leaves in the TSA hands whether or not it approves, and does not state that it is required to approve.

    Most laws such as these are designed purposely to give administrators in every field the ability to use some of their judgement. Disagree with the judgement, certainly, but that’s all there is here.

  11. Jamie,

    I had spoken with multiple attorneys before writing my blog post.Two of them interpreted Admin. Pistole’s comments as preemptively rejecting applications, rather than reviewing them on the basis of their merits. These attorneys believed his comments to be in violation of PL 107-71 as he has closed the process down without giving airports the opportunity to apply for SPP. The third attorney said he believed the law could be interpreted either way depending on the leaning of a court that may hear the case.

    I am sure others attorneys will read the law different, as the law is something that is interpreted.

    I am curious to see of Congress will act on Pistole’s comments regarding SPP.

    Happy Flying!

    -Fish

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