Our station had an FAA SPOT CHECK a couple of months ago....an inspector noticed a passenger go down the jetway with a 3rd carry on and it was subsequently written up with a warning, but thankfully NOT a fine. Need I say more? Yes, the FAA is watching us and we MUST COMPLY.
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LAW OFFICES
KATZ & RANZMAN, P.C.
SUITE 801
1015 EIGHTEENTH STREET, N.W.
WASHINGTON, D.C. 20036
(202) 659-4656
September 16, 2003
Re: FAA/TSA/DOT Fines for Security Breaches
As requested, I have done legal research and analysis regarding potential FAA/TSA/DOT fines imposed directly on airport agents for security breaches and regarding the threatened "pass-through" by an airline of such a fine imposed on the airline.
For the reasons outlined below, and subject to additional research and analysis on the issues needed to complete a thorough review of the applicable law in this area, my initial reaction is to question whether there is any significant likelihood that an airport agent could legally be fined in a summary fashion for simply failing to conduct a satisfactory investigation of a door alarm incident (the example given me).
I. An Airline Cannot Lawfully Pass Through Its Fines to an Agent.
Starting with the threat by an airline supervisor to subject an airport agent with the "pass-through" of any FAA/TSA/DOT fine imposed on the airline, I see at least two serious obstacles to the valid implementation of such a threat.
First, CWA's collective bargaining agreement with US Airways imposes a "just cause" standard for the carrier's imposition of discipline and requires written notice of the specific offense leading to the discipline, and the agreement further provides a series of steps to review the discipline, up to and including an arbitration before the CWA-US Airways System Board of Adjustment. The threat to "pass through" to an airport agent a fine imposed on the carrier by the federal government would conflict with the CWA agreement in many ways. Requiring the employee to pay the airline's monetary fine would constitute discipline within the meaning of the collective bargaining agreement, but the airline has never previously imposed such discipline before, and it is difficult to envision how an employee's alleged failure to conduct a satisfactory investigation of a door alarm incident could justify such discipline, especially in the absence of bargaining with CWA to implement such a departure from past practice. Moreover, the "pass-through" concept, while vague, implies a lessening of the procedural and substantive due process requirements of CWA's collective bargaining agreement, contrary to established arbitral and judicial principles.
Furthermore, decisions of the Federal Aviation Administration and the courts have repeatedly emphasized the non-delegable character of an air carrier's duty in the aviation safety and security areas. In a recent case involving an airline's effort to escape liability by blaming an airport agent for the security infractions at issue, In the Matter of TWA, FAA Order No. 1999-12 at 9 (October 7, 1999), Administrator Jane F. Garvey explained that previous cases establish "that air carriers have a statutory mandate to perform their services with the highest possible standard of care, and that an air carrier's responsibilities are too critical to permit it to transfer its obligations to another." (Citation omitted.) She added, "[A]n air carrier's duty of care has been held non-delegable." (Citation omitted.) Her reasoning, although somewhat insensitive to the collective bargaining responsibilities of airlines as employers, nevertheless confirms the impropriety of the threatened "pass-through" fines:
By holding air carriers responsible for violations committed by their employees, the public is assured that air carriers will do everything in their power to ensure that their employees comply with security and safety regulations. No one is in a better position to bring pressure to bear on air carrier employees to comply with the regulations than the air carriers themselves. For these reasons, permitting TWA and other air carriers to transfer away [to airport agents] their crucial safety and security responsibilities would be contrary to the public interest.
It is at least arguable that allowing an airline to "pass-through" to an airport agent a monetary fine imposed for a security violation constitutes an improper delegation of a non-delegable duty, contrary to this line of authority. Id.; Warbelow's Air Ventures, Inc., FAA Order No. 2000-3 (February 3, 2000); In the Matter of USAir, FAA Order No. 1992-70 at 3-4 (December 12, 1992).
II. FAA/TSA/DOT Rules And Applicable Federal Statutes Do Not to Impose Liability on Airline Agents For This Kind of Conduct.
In the wake of a terrorist bombing in 1988 that destroyed a Pan American World Airways aircraft over Lockerbie, Scotland, as well as the September 11th attacks, Congress and the responsible federal agencies, FAA, TSA and DOT, have enacted stricter aviation security requirements that impose added measures to detect and thwart terrorism.
As before, most of the new rules apply to individuals and companies that hold certificates or permits from the FAA, such as airports, airlines, pilots and mechanics. However, some of the provisions of the key statutes and regulations are worded broadly, and are applicable to all "persons," including passengers and airline employees whose jobs do not require that they hold any special certificates or permits issued by the federal government.
TSA regulations in 49 CFR §1540.105(a), for example, prohibit any "person" from tampering with security systems, entering secured areas without complying with applicable security measures, and misusing airport-issued identification cards. Interfering with or assaulting screening personnel in the performance of their screening duties is barred by §1540.109. Carrying a weapon while attempting to board an aircraft violates §1540.111.
None of these regulations, however, relates to the type of incident you described to me, an alleged failure by an airport agent to investigate satisfactorily a security alarm problem in connection with the closing of aircraft doors as part of the disembarkation of the aircraft. And the evaluation of the propriety of any governmental proceedings to impose a monetary fine on an airport agent for allegedly violating any of the foregoing provisions is thus beyond the scope of my present research and analysis.
The provisions that would appear most closely analogous reside in Part 1544 of Title 49 of the Code of Federal Regulations, which deals with the security obligations of airlines. These rules require each airline to develop an aviation security program, which must be approved by TSA and followed by the airline. The airline must use the procedures in its security program to control checked baggage (§1544.203) and to prevent unauthorized access to its aircraft (§1544.225).
The airline must also ensure that anyone performing security-related duties on its behalf receives training as specified in its security program and has the knowledge of its security program needed to perform their duties (§1544.235). Accordingly, if US Airways has designated an airport agent as a Ground Security Coordinator within the meaning of applicable regulations (§1544.233), it must provide the training needed to perform the duties associated with that designation. The additional training and job duties might well implicate and activate provisions of the CWA-US Airways collective bargaining agreement. But be that as it may, the liability imposed by these regulations is basically on the airline itself. For the same reasons as are outlined in Point I above, monetary fines cannot lawfully be "passed-through" by the airline to employees because that would constitute an attempted delegation of a non-delegable duty.
Finally, it is worth mentioning that the imposition of civil penalties (monetary fines) under the FAA/TSA/DOT regulations occurs under a procedure that the FAA has used for decades. These regulations appear in 49 CFR §1503 and involve the issuance of a written notice to the person potentially subject to the penalty, an opportunity to dispute the penalty through numerous procedural steps, including in an Administrative Law Judge hearing and ultimately before a U. S. Circuit Court of Appeals. The ALJ for a TSA civil penalty action would be from DOT, rather than the National Transportation Safety Board, as in an FAA case, but otherwise the procedures follow those that the FAA has utilized for imposing monetary fines on airport operators, airlines, pilots, mechanics and hazardous materials shippers for decades. The notion that a government official could summarily fine a CWA-represented agent is therefore contrary to the applicable statutory and administrative requirements, and the concept that the airline could lawfully do so is even more difficult to envision.
This letter summarizes my initial thinking. Please let me know if you would like me to research and analyze this matter further or if you have any questions about this letter.
Very truly yours,
Daniel M. Katz