Reauthorizing and Restructuring the Transportation Security Administration's Aviation Security Functions: Legislative Issues and Approaches

Reauthorizing and Restructuring the Transportation Security Administration's Aviation Security Functions: Legislative Issues and Approaches

Order Code RS22375
February 8, 2006
CRS Report for Congress
Received through the CRS Web
Reauthorizing and Restructuring the
Transportation Security Administration’s
Aviation Security Functions: Legislative
Issues and Approaches
Bart Elias
Specialist in Aviation Safety, Security and Technology
Summary
Authorization for aviation security functions carried out by the Transportation
Security Administration (TSA) are set to expire at the end of FY2006. In the Senate, a
reauthorization bill (S. 1052) has been introduced that would set authorized amounts for
aviation security near current appropriated levels, but would increase funding for
maritime and land security functions, which make up a relatively small component of
the TSA’s overall budget. In the House, a reauthorization bill has not yet been
introduced, but a proposal to restructure the TSA’s aviation security functions (H.R.
4439) has been offered. Under the proposed restructuring plan, a performance-based
Aviation Screening Organization (ASO) would be established within the TSA to carry
out day-to-day federal screening operations. The bill also seeks to improve the
Screening Partnership Program (SPP) under which airports can elect to use private
screeners instead of federal TSA screeners in an effort to increase participation in this
program. By separating out TSA’s regulatory oversight functions from screening
operations and promoting the use of private screening partners, the bill seeks to address,
in part, a concern expressed by some over the TSA’s dual role as both the policymaker
and regulator of aviation security at airports and the provider of screening services for
airline passengers and their baggage. This report will be updated as needed.
Funding Levels and Priorities. Since the terrorist attacks of September 11,
2001, the federal budget for the Transportation Security Administration (TSA) has grown
to over $6 billion annually, with a large proportion (about 87%) going for aviation
security operations, chiefly the screening of airline passengers and baggage, and the
deployment of air marshals on passenger flights. The TSA’s initial authorization for
aviation security functions was set to expire at the end of FY2005, but was extended
through FY2006 by the Intelligence Reform and Terrorism Prevention Act of 2004 (P.L.
108-458). That initial authorization — set forth in the Aviation and Transportation
Security Act (ATSA; P.L. 107-71) — allowed for such sums as may be necessary to carry
out aviation security-related functions. This language provided extensive flexibility to
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appropriators and the Administration to set budgets needed to meet the aviation security
mandates set forth in ATSA including the deployment of federal screeners at all
commercial passenger airports and 100% electronic screening of passenger bags —
objectives that were initially entered into with a relatively high level of risk and
uncertainty. In the five years since the TSA’s creation, the initial budgetary risk and
uncertainty has declined considerably, and will likely continue to stabilize. Therefore, as
Congress examines and debates the first multi-year TSA reauthorization measure since
its creation, authorizing committees may seek to more explicitly define the TSA’s future
funding levels and priorities.
The Transportation Security Improvement Act of 2005 (S. 1052) — a TSA
reauthorization measure introduced by Senator Stevens — does not seek significant
changes to funding amounts for aviation security compared to amounts appropriated over
the past two years, but proposes proportionally larger increases for maritime and land
security and TSA’s intelligence functions, which would nonetheless continue to make up
a relatively small percent of the TSA’s overall budget. The bill would authorize expenses
for the TSA as outlined in Table 1. A similar bill to reauthorize the TSA beyond FY2006
has not yet been introduced in the House.

Table 1. Proposed Authorization and Appropriated Funding Levels
for TSA
($ Millions)
2006
2007
2008
Aviation
Senate (S. 1052):
5,000
5,250
5,500
Appropriated (a):
5,293
Maritime & Land
Senate (S. 1052):
394
354
354
Appropriated:
36
Intelligence
Senate (S. 1052):
300
320
340
Appropriated:
21
Research & Development
Senate (S. 1052):
300
320
340
Appropriated:
(b)
Administration
Senate (S. 1052):
530
535
540
Appropriated:
489
Sources: P.L. 109-90; S. 1052.
a. Amounts appropriated for aviation include appropriations for Federal Air Marshals, but do not
include $250 million allocated to the Aviation Security Capital Fund under Title 49 U.S.C.
§ 44923. FY 2006 appropriated amounts have not been adjusted to reflect rescissions
enacted in P.L. 109-148.
b. In FY2006, TSA Research & Development (R&D) functions were moved to the Science &
Technology Directorate and consolidated with other R&D activities.
Financing Aviation Security. Various alternative financing mechanisms
may be debated during the reauthorization and appropriations processes as present user
fees fall well short of offsetting total federal costs for aviation security. Presently, airline
passengers pay a $2.50 per leg fee, not to exceed $5.00 per one way flight. Additionally,
airlines each contribute an aviation security infrastructure fee (ASIF) that has an overall
cap equal to the amount that the airlines collectively spent on passenger and baggage

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screening in calendar year 2000.1 When ATSA was enacted, many believed that these
fees would cover a large portion, if not all, of the cost for aviation security. However, in
recent years, passenger and airline fee collections have netted less than 35% of the direct
costs for airport screening operations, air marshals, and airport security infrastructure.
The financially-troubled airline industry generally opposes security fee increases arguing
they will hurt revenues by increasing the total cost of airline travel, forcing airlines to
either cut ticket prices or lose passengers. On the other hand, unless the fee structure is
changed, lawmakers are faced with the prospect of continuing to pay for a substantial
amount of the total cost for aviation security using general fund contributions during a
time of increasing pressure to reduce deficit spending. The FY2007 President’s budget
proposal recommends replacing the current passenger fee schedule with a flat per-
passenger fee of $5.00 for each one-way trip. While a FY2006 plan to raise the existing
segment-based fees failed to garner much support in Congress, the Administration views
the proposed fee based on one-way trips as being more palatable because it would not
impose higher fees on connecting passengers and would better reflect passenger
utilization of the aviation security system since passengers typically undergo security
screening only once for every one-way trip.
Under a plan proposed in S. 1052, the TSA would be required to promulgate new
rulemaking, subject to congressional review, before imposing air carrier security fees that
would continue or replace the ASIF beyond FY2006. Additionally, S. 1052 would require
the TSA to study alternative methods for collecting passenger security fees besides using
the airlines to collect these fees as part of ticket purchases. Alternatives suggested in the
legislative proposal include vending kiosks, automated vending devices, the Internet, and
other remote vending sites. If any of these fee collection methods is determined to be
feasible, the TSA would then be required to develop systems utilizing these alternative
collection methods for the purpose of assessing their efficiency. The bill, however, does
not propose to alter the existing passenger fee schedule.
A Performance-Based Airport Screening Organization. The House —
while not yet considering a TSA reauthorization bill as such — is considering a measure
that would more substantively alter the organizational structure of the TSA. The
Transportation Security Administration Reorganization Act of 2005 (H.R. 4439),
introduced by Representative Lungren, seeks to establish a performance-based
organization, referred to as the Airport Screening Organization (ASO), to manage the day-
to-day passenger and baggage screening functions of the TSA. By separating out TSA’s
regulatory oversight function of aviation security from screening operations and
promoting the use of private screening partners, the bill seeks to address, in part, a
concern expressed by some over the TSA’s dual role as both the policymaker and
regulator of aviation security and the provider of airport security screening.2
The proposed ASO’s mission would be to improve these screening operations
through increased efficiency, better use of advanced technologies, reduced costs, and a
more effective response to the needs of the traveling public while enhancing aviation
security. The ASO would be run by a chief operating officer (COO) and is
1 See Title 49 U.S.C. §44940.
2 See, for example, Robert W. Poole, Jr. Airport Security: Time for a New Model. Policy Study
340 (Los Angeles, CA: Reason Public Policy Institute, January 2006).

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organizationally similar to the performance-based Air Traffic Organization (ATO)
recently created within the Federal Aviation Administration (FAA) to oversee air traffic
operations and the acquisition and maintenance of air traffic facilities and equipment.
Like the FAA’s reorganization, the proposed reorganization of the TSA would separate
the operations and technology functions from regulatory development, oversight, and
enforcement functions. Under the plan, the COO would be responsible for developing a
5-year strategic plan outlining measurable performance goals for gauging the
effectiveness, efficiency, and productivity of aviation screening operations. The existing
Senate proposal for TSA reauthorization (S. 1052) contains no similar provisions for
restructuring the TSA.
Partnerships with Private Screening Entities. H.R. 4439 also seeks several
modifications to the existing security screening opt-out program, a provision of ATSA
(P.L. 107-71) that allows airports to request private screeners instead of federal screeners.
Initially, private screening contracts were established at five airports under a pilot
program, and in November 2004, all commercial passenger airports became eligible to
request that screening operations be handed over to private firms. However, while those
airports already in the pilot program all elected to continue using private screeners, few
other airports have sought to convert to private screeners. While the TSA has certified
more than 30 vendors to provide security screening at airports, so far it has awarded only
one contract to provide airport screening services under its Screening Partnership Program
(SPP) at Sioux Falls Regional Airport, South Dakota.3 It anticipates fully converting the
five existing pilot program airports to the SPP program by May 2006. A variety of factors
have contributed to the reluctance of airports to switch to private screening operations
including perceived program constraints, concerns over potential repercussions from
opting out of the federal screening program, and concerns over potential liability exposure
for airports that request private screeners. The concerns over potential airport liability
were largely addressed in the FY2006 Department of Homeland Security Appropriations
Act (P.L. 109-90, Sec. 547) which extends liability protections to airport operators that
request private screening contracts. Previously, only private screening companies were
covered under statutory liability limits set forth in the Homeland Security Act of 2002
(P.L. 107-296).
H.R. 4439 contains language to ensure that funding for aviation security is allocated
among airports according to a cost-based formula without regard to whether the airport
is staffed with federal or private screeners. The bill further requires the TSA to develop
standard operating procedures and requirements for private screening operations. Private
screening firms that meet these requirements will be issued certificates of conformance,
and liability protections provided to screening entities under provisions of the Homeland
Security Act of 2002 (P.L. 107-296; 6 U.S.C. Sec. 443) would be extended to airport
operators and other third parties, although, as noted above, liability protections for
airports with private screeners were addressed in P.L. 109-90. H.R. 4439 would require
the TSA to set performance goals for private screening operations and allows the TSA to
provide incentives for private screening entities that meet or exceed performance
expectations. Additionally, to provide airports with an incentive to request private
screeners, H.R. 4439 allows the TSA to award airports with grants to cover aviation
3 Transportation Security Administration. “Covenant/Lockheed Team Selected as Private
Screening Contractor at Sioux Falls.” Press Release, December 16, 2005.

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security costs of up to 90% of the annual cost savings realized by converting to private
screeners, subject to the availability of appropriations. The bill would also require each
airport with federal screeners to submit written notice to the TSA on an annual basis
specifying whether the airport intends to submit a request for private screeners or continue
using federal screeners.
Airport Screening Performance. Improving the quality and performance of the
screener workforce was a central element of the public policy debate leading to the
creation of the TSA and the nationwide deployment of federal screeners. However, the
overall effectiveness of these efforts has been brought into question by audits indicating
that “[i]mprovements are still needed in the screening process to ensure that dangerous
prohibited items are not being carried into the sterile areas of airports, or do not enter the
checked baggage system.”4 Factors cited for the failures to perform adequately included
screener training, equipment and technology, policies and procedures, and management
and supervision of screening operations. Despite considerable attention to this area, the
most recent follow-up audit by the DHS Office of Inspector General noted that significant
improvements in screening performance may not be possible without system-wide
deployment of new technologies such as backscatter x-ray, explosive detection portals,
and document scanners.5
Several provisions in P.L. 108-458 addressed specific needs for checkpoint screening
technologies and improved screener performance. While congressional oversight of the
TSA’s progress to address these specific screening technology and performance issues
may heighten during the second session of the 109th Congress, H.R. 4439 addresses the
issue from a broader organizational management perspective. Specifically, H.R. 4439
calls for the proposed ASO to develop and execute a 5-year strategic plan for improving
screening effectiveness, efficiency, and productivity and would set specific, measurable
performance goals in each of these areas at various levels of the organization. The Senate
bill (S. 1052), on the other hand, contains provisions more specifically addressing issues
of screener training and recruitment. S. 1052 would require the TSA to report on the
adequacy of screener training focusing on any multi-hour weekly training requirements,
assessing the degree to which such requirements are met and whether such requirements
are “appropriate, workable, and desirable.”6 S. 1052 also calls for establishing a pilot
program at three or more airports for training high-school seniors hired as student interns
to perform airport screening functions. S. 1052 would also establish a waiver process
allowing convicted criminals to be hired as airport screeners after determining that they
do not pose a security or terrorism risk.
Passenger Identification and Risk Assessment. A long-standing objective
since the terrorist attacks of September 11, 2001 has been to evolve airline passenger
screening into a process that more fully considers the degree of risk posed by individual
passengers, the argument being that risk-based assessments of passengers could aid in
4 Department of Homeland Security, Office of Inspector General. Follow-Up Audit of Passenger
and Baggage Screening Procedures at Domestic Airports (Unclassified Summary). OIG-05-16
(March 2005).
5 Ibid.
6 S. 1052, Sec. 203, p. 11

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focusing limited screening resources on those passengers that pose an elevated or
unknown risk and may streamline the security screening for those passengers who pose
little or no security risk. Meeting this objective, however, has proved difficult, partly
because of lingering privacy and passenger data protection concerns. An apparent
inability to adequately address these concerns resulted in the TSA scrapping its
controversial Computer Assisted Passenger Prescreening-II (CAPPS II) program and has
led to delays in launching Secure Flight, a system designed to check passenger names
against the consolidated terrorist watchlist.
While meeting the objectives of carrying out risk-based assessments of airline
passengers was addressed in the original ATSA legislation and revisited in P.L. 108-458,
the current legislative proposals are more directly focused on issues related to acceptable
forms of passenger identification and the prescreening of passengers on inbound
international flights. Specifically, H.R. 4439 would require passengers to present tamper-
resistant identification that includes the individual’s full legal name, date of birth, gender,
photograph and signature such as driver’s licenses and personal identification cards that
meet the requirements of the Real ID Act of 2005 (49 U.S.C. §30301 note). Passengers
unable to present acceptable identification would be subject to additional physical
screening at checkpoints, and passengers who knowingly present false identification
would be subject to criminal penalties. Additionally, H.R. 4439 would require the TSA
to launch a pilot program at two or more foreign airports utilizing automated systems to
prescreen passengers against the consolidated terrorist watchlist prior to boarding
international flights bound for the United States. Language in the bill also encourages the
DHS to pursue international cooperative efforts to set technology standards for passenger
data systems. H.R. 4439 would also require the DHS to review the existing Computer
Assisted Passenger Prescreening System (CAPPS) — a passenger risk assessment tool run
by the airlines — and evaluate whether it should be continued after full deployment of
Secure Flight. Also, H.R. 4439 would require the development of processes to ensure that
secondary screening is not conducted on passengers who have either been cleared by
fingerprint based background checks conducted by the DHS or hold a security clearance
issued by the DHS. Participants in the forthcoming Registered Traveler program, for
example, may benefit from this by voluntarily undergoing background checks in exchange
for expedited screening without the chance of being singled out for secondary screening.

Other Possible Issues. A variety of other lingering aviation security issues may
arise during the TSA reauthorization process including air cargo security and general
aviation security. However, the legislation currently under consideration appears to be
more specifically focused on issues related to the security of passenger airline operations.
Besides those issues already discussed above, H.R. 4439 proposes several modifications
to the program to train and deploy armed pilots — the Federal Flight Deck Officer
(FFDO) Program — that are designed to: improve the accessibility and reduce the cost
of training for participating pilots; increase the utilization of armed pilots on international
flights; and improve communications and exchange of security-related information to
pilots in the program. The Senate bill (S. 1052) addresses continuing concerns over
security risks at foreign aircraft repair stations by proposing to place a moratorium on
FAA certification of these facilities unless the TSA reviews and audits them, an unfilled
statutory requirement mandated by Vision 100 — The Century of Aviation Authorization
Act (P.L. 108-176, Title 49 U.S. Code §44924) in December 2003.