NOTE: The issues discussed in this article do not constitute legal advice. The objective is to alert you to some common issues so that you can avoid or minimize legal trouble. Anyone with an aviation law problem should be guided by the advice of his or her lawyer, under applicable federal and state laws, after a full and confidential disclosure of all relevant facts.

 

              Pilots in the United States have traditionally enjoyed freedom of operation unmatched in most developed countries. The FAA although strict on safety issues, has always tried to promote air commerce. While some pilots grumble about the FAA’s heavy regulatory hand, the U.S. has been a great place to own and fly aircraft. On September 11th, the terrorists changed that by attacking the United States through the aviation industry. As a result, The Transportation Security Administration (TSA) has been given unparalleled powers to protect air transportation.

 

 

TSA has Extensive Power to Bring Enforcement Actions for Aviation Security Violations

 

 

            The TSA issued its first Investigative and Enforcement Procedures on August 8, 2002.  TSA promulgated enforcement rules as “interim final rules” without complying with the Administrative Procedure Act. In this context, the word “interim” doesn’t tell the whole story - it means that these rules are in force until the TSA issues new rules.  The TSA temporarily copied the FAA Civil Penalty Rules but made some modifications consisting with the TSA’s new authority and concerns for secrecy. The old FAA procedures are familiar and were developed under the Administrative Procedure Act; thus, they should provide a modicum of due process. But, what about the new TSA rules?  Consider that the TSA has new broad powers, TSA announced that it is not bound by the Administrative Procedure Act in conducting enforcement proceedings. TSA has new procedures for limiting access to secret information used in enforcement proceedings. Will the new rules be applied fairly?

 

            One of the first examples of a new rule is the  TSA/FAA Airman Security Rule. FAA docket number 2003-14293; amendment nos. 61-108,63-32,65-44. The Security Rule that allows the TSA to deem an airman a security threat and cause the FAA to remove his eligibility to hold his certificate without a hearing and without seeing the evidence against him unless the TSA decides to show it to him.

 

The TSA Will Decide its Own Measure of Due Process

 

             The TSA has announced that it will conduct its enforcement procedures consistent with the broad authority granted by the Aviation and Transportation Security Act (“ATSA”) (Public Law 107-71, amending 49 U.S. Code Chapters 401-501). In the Preamble to the new enforcement rules, The TSA made clear that “TSA’s enforcement proceedings are not required to comply with the Administrative Procedure Act (APA).”   [EMPHASIS ADDED].

                       

            The TSA may actually issue a Notice of Proposed Rule Making (NPRM) in the future, in order to preview changes to these interim rules. However, the power of the TSA and their freedom from administrative procedural constraints, should raise concerns over whether post 9/11 due process will be significantly different in aviation security matters.

 

Brief Summary of TSA’s Aviation Investigative and Enforcement Procedures.

 

                        Any person who suspects a violation of the Aviation Security laws, regulations or orders, may  report it to TSA. The TSA will investigate the matter and determine if the alleged violation requires action.  The TSA can use subpoenas, take depositions and compel the production of documents as part of their investigation.

 

                        Any person may file a formal written complaint with the TSA. The Complaint goes into the TSA’s enforcement docket.  The alleged violator will have twenty (20) days to respond to the formal written complaint.  If the Under Secretary for the Security Transportation Administration, decides that sufficient grounds exist, a notice of proposed order regarding civil penalty may be issued or other enforcement action may be taken.  Of course, the TSA may initiate an investigation for suspected violations of aviation security laws.

 

 

                        If TSA determines that legal enforcement is not necessary, an administrative action in the form of a warning notice or letter of correction may be issued to address the infraction.  The violator will have

 no opportunity for a hearing or appeal of an administrative action, nor willit be considered a legal sanction. If a legal enforcement action is brought against an alleged violator, the respondent will have a right either directly or through his authorized representative, to obtain a copy of the enforcement Investigative Report prepared in his case released to him.  It appears from the new interim regulations of the TSA that the respondent will have access

to the sensitive security information (“SSI”) which has been collected by  the TSA but only in confidence and only to prepare its defense. 49

CFR §1520.3.

 

                        A civil penalty action will be initiated when the respondent is sent a Notice of Proposed Civil Penalty. The Notice will include the violations and the amount of the proposed civil penalty.  The respondent has thirty (30) days to respond to the proposed notice of civil penalty.  The respondent must : (1) pay the penalty, (2) submit a written explanation justifying or mitigating the alleged violation, (3) submit a written request to reduce the civil penalty, (4) request an informal conference, or (5) request a hearing.

 

                        If the matter is not resolved after the issuance of the proposed notice, and after sufficient time to respond or hold an informal conference, a Final Notice of Civil Penalty will issue.  The recipient of a Final Notice of Civil Penalty must pay the penalty. Alternatively, the Respondent may request a hearing in 15 days from personal service or the date of the mailing of the final notice.

 

                        A written request for hearing must be filed with the enforcement docket clerk at the Transportation Security Administration.  A hearing will be held before an administrative law judge of the Department of Transportation after sufficient time for discovery.  If the respondent is not satisfied with the final order of the administrative law judge, he may appeal to the Administration’s “Decision maker” - the Under secretary of Transportation for the Transportation Security Administration.  If the respondent is not satisfied with the TSA decision maker’s ruling on the appeal, the respondent may file a Petition for Review with the United States Court of Appeals. 

 

 

The TSA Will Have Power to Penalize “Any Person.”

 

                        The new TSA Enforcement Procedures apply to “any person.” engaged in aviation-related activities. 49 CFR § 1540. TSA may bring an enforcement action against individuals, entities such as corporations and governmental authorities.  Aircraft operators, pilots, flight attendants, airport visitors, and passengers on airplanes will be subject to the rules. Moreover, section 1540.113 of the new regulations requires that any aviation person who holds an airman certificate, medical certificate, authorization or license issued by the FAA must present it upon demand from the TSA.

 

                        It is important to note that the enforcement procedures may be applied to any individuals, not just employees of aviation businesses. For example, under § 1540.109, any person who is suspected of interfering with, threatening or intimidating a screening person in the performance of their screening duties, may be penalized. The rule prohibits  distracting a screener including even verbal abuse which has the effect of distracting or intimidating the screener. Thus, irate travelers and airport visitors and even airline pilots must be careful how they target their frustration.

 

TSA Will  Limit Access to Sensitive Security Information (SSI)

 

                        TSA has issued regulations protecting the information it considers important in performing its security function.  Information that may be kept secret will be known as Sensitive Security Information (“SSI”).   TSA will maintain secrecy over SSI, in order to protect the safety or security of the traveling public.  Section 1520.7 of the regulations, specifies types of information and records that may be classified as Sensitive Security Information.  The Preamble to the new rule reveals an intent to broadly classify as sensitive, any information that could help someone determine how to defeat security systems.  Further, § 1520.3 reveals that  the scope of sensitive security information can include information developed for the conduct of security as well as research and develop activities under 49 U.S. Code § 40119. Thus, work schedules, the physical location of property and many otherwise routine matters may become secret.

 

TSA Has The Power to Seek Large Monetary Civil Penalties

 

                        The Under Secretary of Transportation for the Transportation Security Administration will have the power to propose substantial monetary civil penalties. Penalties can lie against individuals and those who operate aircraft for compensation and hire to punish violations of aviation security laws, regulations and orders. The amount of civil penalties that can be assessed is up to $1,000.00 per violation against individuals or entities and up to $10,000.00 per violation against operators of aircraft used for compensation or hire. 49 U.S. Code § 147(a); 46301(a)(4). 

             It is unclear whether the TSA will interpret each “violation” the same way the FAA has interpreted this language, such that the violation of one order or regulation that occurs repeatedly over several days, constitutes a separate violation, with a separate penalty adding up each day.

 

                        The TSA can forcibly impose penalties up to $50,000.00. Civil penalties greater than $50,000.00, may be sought by the TSA and collected by settlement under the authority of the Under Secretary for the Transportation Security Administration.  If TSA is not able to negotiate a compromise of a civil penalty in excess of $50,000.00, the enforcement action must be assigned to the United States Attorneys Office.  The U.S. Attorney will have the power to seek civil penalties against any person for violation of Aviation Security Laws in the United States District Court, in any amount justified by the allegations. Further, if the violation is “knowing” criminal penalties may be sought.

 

                         In non criminal security violation cases, the United States Attorneys Office may besides civil penalties, seek injunctions against violators, file in rem actions against property, seize property and subject it to a lien. One advantage of having the U.S. Attorney’s office prosecuting an aviation security violation case, is that the Defendant is entitled to a jury trial in District Court. 49 USC §46305.

 

 Will a Sufficient Record For Appeal Be Compiled if the Penalty is based on SSI?

 

                        Under the ATSA, the TSA is not required to provide administrative hearings on the record.  Under the interim rules employing FAA enforcement procedures, the TSA will create a record; however, the contents of the record are open to substantial restriction under TSA interpretations.  The TSA attorneys can  even petition the administrative law judge to seal the record to preserve information that does not qualify as SSI. 49 CFR §1503.226 (a).  It is not clear whether a full transcript of all testimony will be compiled. May Security personnel armed with SSI be open to cross examination on the record? May their testimony be redacted from the transcript? Will a record composed of  all evidence used in the enforcement proceeding will be preserved and available for review on appeal? If not then, the entire process is subject to abuse.

 

The Respondent and His Attorney Will Have Access to The EIR

                       

                        A respondent’s access to the Enforcement Investigative Report is preserved in the new regulations; however, such access will be subject to the limitations imposed by the agency attorneys who are handling the case.  Thus, if the agency attorneys assert work product protection, Attorney Client Privilege or Deliberative Process Privilege process to the contents of the EnforcementInvestigative Record, such material may be withheld from disclosure to the Respondent.  It is unclear at this time how agency attorneys will interpret the Deliberative Process Privilege and Attorney Client privilege vis’ a vis’ sensitive exculpatory or mitigating evidence in the enforcement file. Will an in camera review procedure be available to verify an assertion of privilege?

 

 

 Attorney Access to Enforcement Dockets, Meaningful Opinions and Enforcement Standards may be Restricted.

                       

                        Attorneys representing Respondents in aviation security enforcement cases may have difficulty investigating the handling of other Respondents’ security violations and evaluating the comparability of penalties assessed. Attorneys will not have access to other dockets (besides their client’s docket) unless they seek access through the Freedom of Information Act. Any request made through the Freedom of Information Act will be subject to the many exemptions of the Freedom of Information Act. Exemptions include  information deemed secret in the interests of national defense, Privacy Act records, inter agency memos, personnel and medical files, records compiled for law enforcement and documents revealing internal rules and practices. 5 USC § 552; See 49 CFR Part 7. Attorneys can try to persuade the Under Secretary that they have “a need to know” to gain access to enforcement dockets and SSI. 49 CFR §1503.230.

 

                        It is not clear whether decisions of DOT Administrative Law Judges or Under Secretary will be published in usable form. While the TSA may plan to post opinions , the evidentiary basis for the opinions is particularly useful to attorneys. The Judges may have to base their opinions on substantial secret SSI information which cannot be described in the opinions. Further sensitive testimony may have been taken under seal and not disclosed in the opinion.

                       

                        The FAA used Compliance & Enforcement Handbook, FAA Order 2150.3A. The FAA Order set standards the FAA Enforcement attorneys were required to follow. Will TSA attorneys prepare such a handbook and make it available to attorneys representing Respondents?

 

The Public Will Not Have Access to Dockets or Enforcement Investigative Reports

 

                        The general public will not have access to any enforcement docket or Enforcement Investigative Report without submitting a Freedom  of Information Act request to the TSA. Any  FOIA release of  such  information will be limited to information not covered by an exemption, a privilege asserted by the TSA enforcement lawyers, not covered by an ALJ’s seal. SSI will not be released without convincing the Under Secretary of a “need to know.”

 

Conclusion

 

                        On 9/11, the terrorists attacked the United States through the aviation industry.It should be understandable that after 9/11, the greatest security measures in U.S. history are being taken in aviation-related activities. Those who violate security laws must be penalized. Nevertheless, the procedures employed, due process afforded and precedent created should mirror the pre- 9/11 process or the terrorists will have succeeded in getting us to repress our freedoms.