OnTheAsile

After reading CFR49 PART 1540
"United States Code of Federal Regulations Title 49 - Transportation
CHAPTER XII--TRANSPORTATION SECURITY ADMINISTRATION, DEPARTMENT OF HOMELAND SECURITY PART 1540--CIVIL AVIATION SECURITY: GENERAL RULES "
I am looking for any CFR's that actually authorize TSA and mandate or define what its specific functions are.
The main spark of my interest is the definition:
"Screening function means the inspection of individuals and property for weapons, explosives, and incendiaries."
Thanks

KCK

http://www.tsa.gov/assets/pdf/Aviati...w_107_1771.pdf

ND Sol

Look at Trollkiller's site and more particularly his December 28, 2008 post. That may be helpful in your search.

Trollkiller

I am not sure what you are looking for, can you expand your question?

OnTheAsile

I am looking for the federal laws (CFR's ) that authorize the existence and implementation of TSA and any CFR's that specifically state what the function of TSA is and how those functions will be carried out.
Additional references beyond CFR's would also be welcome.

As defined in CFR49, and you have also picked , Screening function means the inspection of individuals and property for weapons, explosives, and incendiaries.

I am interested in how TSA has legally moved beyond inspecting for weapons, explosives, and incendiaries. If none of those three items are found with a passenger at the screening checkpoint then TSA should apparently have no further interest or interaction with that individual and that person should be allowed to continue with boarding the aircraft. I see nothing that relates to copying ID, looking at personal documents or even being concerned as to where the individual is going. In fact what does it matter who the person is if the items of concern do not exist what is the threat?
Or is everyone deemed to be a guilty of being a potential threat and now must prove their innocence?

On the televised CSPAN Senate Hearings with regard to Health Care Reform a well respected Senator made several references to the "pervasive and growing abuse of power within government" This is what I perceive to be happening within the TSA. An attempt to gain a more abusive, domineering, restrictive power rather than focusing on the original intent of their existence. They are currently working under the premise that intimidation and secrecy will get them the public cooperation to expand this quest for control. Fortunately this tactic is backfiring. It has been proven to be flawed and it is starting to be met with public resistance.

So I want to find out specifically what the laws were when TSA was originally authorized and what were they mandated to do?
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ND Sol

That is the applicable CFR and a reason why many of us believe that the authority is not there to extend beyond WEI.

Here is my exchange with Francine the TSA Chief Counsel about this very matter (and the reason she is now Francine the Googling attorney):


Francine said: “As Chief Counsel, I firmly believe that TSA's ID requirements are warranted from a security perspective and entirely legal. Under a TSA regulatory provision, 49 C.F.R. § 1540.105(a)(2), a person may not enter the sterile area “without complying with the systems, measures, or procedures” applied to control access to the restricted area in question. Verifying the identity of passengers who access the sterile area falls within this rubric and is, in fact, part of TSA’s screening process. It is true that an earlier regulatory provision, 49 C.F.R. § 1540.5, which sets forth definitions, states that access to the sterile area is “generally” controlled through the “screening” of persons and property and that “screening function means the inspection of individuals and property for weapons, explosives, and incendiaries.” The definition of “screening function,” which focuses on physical inspection—the most intrusive form of screening—cannot be read to limit the Administrator’s broad expanse of authority under the operative language of section 1540.105(a)(2) to establish “systems, measures or procedures” governing sterile area access, including an ID screening process. Certainly, the common definition of screening encompasses methods other than physical intrusion. One definition of screening listed by Google reads as follows: “Is the person on a watch-list? Biometric information can be used to determine if a person is cleared to be in a restricted area, or if the person is on a watch list (eg the FBI Most Wanted list).” Similarly, under section 1602(a)(5) of the 9/11 Implementation Act, H.R. 1, the definition of cargo “screening” includes methods other than physical inspection. Given the Administrator’s fundamental statutory responsibility pursuant to 49 U.S.C. § 44901 to secure the aviation transportation system, a unduly narrow construction of § 1540.105(a)(5) cannot be justified.”

My response:

A basic rule of construction concerning the interpretation of CFR’s is breached in your analysis. CFR’s are to be interpreted in the strictest sense especially when the regulation involves restrictions on individuals and their actions. The agency that promulgates the regulation also is the drafter. As such, if the agency wanted to make the rule broader, it should have drafted it as such.

49 C.F.R. §1540.105(a)(2) addresses not only the “sterile area” as related to systems, measures and procedures. It also includes secured areas, AOA’s and SIDA’s. For that reason, the other “systems, measures, or procedures being applied to control access to, or presence or movement in, such areas” are dependent on the particular area at issue. So, for example, in the case of SIDA’s an acceptable system would be the checking of ID’s. On the other hand the definition of sterile area sets forth the specifics for those systems, measures and procedures, which is the screening of persons and property. How is that screening accomplished – through the screening function, which is defined as “inspection of individuals and property for weapons, explosives, and incendiaries.” Until the CFR is amended, that is your limit for the sterile area.

You also conveniently left out two words (among others) when you state “that access to the sterile area is ‘generally’ controlled through the ‘screening’ of persons and property.” After the word “controlled”, the words “by TSA” were not included. As such, you give the impression that the word “generally” refers to the screening process when in fact the reference is to the TSA. That is not only disingenuous, but wrong. Boundaries are set for screening of persons and property.

We also don’t have a reason to go to Google for definitions of “screening.” It is contained in the CFR itself. If that definition is too restrictive, you just can’t conveniently ignore it; you need to go through the process of amending the regulation. In that manner the Google definition can then be included if you feel it is appropriate to accomplishing the TSA mission. Are you not amenable to that?

I had a very seasoned attorney once tell me that if he was given the opportunity to draft a document, as long as he was able to have free reign over the definitions section, then he would let the other side’s attorneys draft the rest of the document. Definitions are a critical and integral part of a legal instrument.

OnTheAsile

^

Trollkiller

The TSA is mandated to find weapons, explosives and incendiaries.(WEI) That is all, but if they find something that is illegal they must notify a LEO. If they don't they would be committing a crime. (They can't look for illegal items but if they find them you are done.)

The TSA is also mandated by law to run Secure Flight.

All the rest that the TSA does like checking IDs at the checkpoint are beyond the scope of the administrative search. As is any search that is not a good faith search for WEI, or is more intensive or extensive than needed in light of current technology to find WEI. See this thread http://www.flyertalk.com/forum/trave...ch-fofana.html

Well off to bed, let me know if I can be of more help.