ACI-NA Weekly Legal Briefing--Issue 4

 

ACI-NA’s Weekly Legal Briefing

Volume 2012, Issue 4

Week of March 12 – 16, 2012

Legal Affairs Committee Members:

The following matters are highlighted for your review and information.

Highlights from the ALEAN Conference

TSA Administrator John Pistole Addresses the ALEAN Conference in New Orleans

Last week, the Airport Law Enforcement Agencies Network held its Spring Conference in New Orleans, Louisiana.  The keynote speaker for the conference was TSA Administrator John Pistole, who addressed several aspects of the TSA layered security strategy.  Other TSA officials discussed current TSA security initiatives, such as canine teams and screening programs, and the FBI provided an aviation threat briefing. 

Administrator Pistole stated that his philosophy for TSA consists of ten words:  “Providing the best possible security in the most effective way”.  In furtherance of this philosophy, the goal of the risk based security program involving “pre-check” for passengers is to focus TSA resources on the people that TSA knows the least about and to perform pre-screening and expedited physical screening for those people who are willing to share more information about  themselves.  Currently, TSA has pre-check lanes at nine airports and expects to expand the program to 35 airports by the end of the year.  The pre-check program will permit TSA to detect and focus more resources on people who have not already been identified as a threat.

As part of the layered strategy for security, Administrator Pistole noted the large investment TSA has made in technology, with 650 existing Advanced Imaging Technology machines in operation and an additional 200 to be in operation by the end of the year.   However, TSA also has a concern with people once they get into the air transportation system beyond the screening checkpoint and with people who enter the system from small airports.

Regarding the TSA canine explosive detection program, Administrator Pistole states that the protocols for responding to a potential detection by the canine are being developed.  The support the canine teams will need from airport law enforcement depends upon the response protocols being developed.  TSA is examining the response protocols for existing canine teams from various agencies, some of which immediately respond to a dog alert with armed officers. 

Administrator Pistole emphasized his strong support of the Behavior Detection Officer program and wants to expand the program – people with bad intent show visible signs most of the time.  In addition, the “enhanced” BDO program (a pilot program where passengers are asked a series of questions) can work, but is very resource intensive.  With the enhanced program, the concern is with how passengers say their response and not so much what passengers say.

Chris McLaughlin (Assistant Administrator, TSA Office of Security Operations) discussed increasing the utilization of the Advance Imaging Technology machines for screening passengers.  The addition of the automatic threat recognition feature has increased passenger throughput of the machines.  Now, the examination of the carry-on bags at the X-Ray machine is what slows down the processing of passengers at the checkpoint, not the AIT machines.  The increased emphasis on the resolution of alarms at the X-Ray machines will increase the processing times for carry-on bags.

Chris also discussed the deployment of the TSA canine teams.  The initial teams will be deployed to Cat X and I airports, which have the most passengers.  However, TSA will also look at the smaller airports, where potential vulnerabilities might exist.  One of the areas where TSA will use these canine teams is in the screening checkpoint lines that have expedited screening.

Doug Hofass (Deputy Assistant Administrator, Office of Security Policy and Industry Engagement), in discussing access control and perimeter security, stated that the objective is not to prevent access or perimeter breaches but to detect and mitigate the breaches.  Following a successful pilot of passenger self-tagging of checked baggage, TSA will permit airlines to initiate programs to allow passengers to self-tag checked bags.  However, the airlines still must compare the passenger’s ID with the passenger’s bag.  Doug mentioned that Administrator Pistole has three requirements that any program proposal must satisfy:  Increases Security, Increases Efficiency, or Decreases Burden to the Field. 

The FBI “Aviation Threat Briefing” emphasized that international terrorist groups have shown adaptability, patience, and persistence in their activities.  Terrorist groups have internet connectivity, are conducting research and testing security measures to identify vulnerabilities, and are encouraging individual acts of terrorism.  Passenger civil aviation remains a high priority target for terrorist groups.  While their goal is to get explosives onto an aircraft, they are trending to move their targets outward to terminal buildings and vehicles outside the terminal.  On the other hand, general aviation, while a less desirable target, is still a concern.  There remains a significant concern with the “insider” threat from workers with access to the airport.

(Submitted by James Briggs, Vice-President of Legal Affairs)

Litigation Developments Involving TSA:

  • The Rutherford Institute filed a brief in the U. S. Court of Appeals for the Fourth Circuit seeking to have its First Amendment claim heard, notwithstanding a request by the U. S. government to dismiss that claim. 

https://www.rutherford.org/publications_resources/on_the_front_lines/rutherford_institute_asks_fourth_circuit_to_reject_governments_motion_to_di

  • Former Rep. Bob Barr of Georgia has sued the TSA for allegedly violating the Freedom of Information Act.

http://thehill.com/blogs/transportation-report/tsa/216461-former-lawmakers-group-sues-tsa-for-alleged-freedom-of-information-act-violations

  • Schumer bill would create 'passenger advocates' for TSA

http://thehill.com/blogs/floor-action/senate/216539-schumer-bill-would-create-airport-passenger-advocates-to-help-with-tsa-disputes

Regulatory Matters:

  • The DOT’s Office of Inspector General has announced the following audit:

“At the request of Representatives Frank Wolf and Tom Latham, the Office of Inspector General plans to conduct an audit of phase 2 of the Dulles Corridor Metrorail Project.  The project is a two-phased, multibillion-dollar effort aimed at connecting Northern Virginia’s fastest growing employment regions and providing easier access to Dulles International Airport.  The Metropolitan Washington Airports Authority (MWAA) is responsible for constructing the project.  Once MWAA completes each phase, the Washington Metropolitan Area Transit Authority (WMATA) will operate the rail line.  In response to stakeholder concerns about the cost, scope, and financing of the planned phase 2 of the project, Secretary LaHood brokered a Memorandum of Agreement between the Commonwealth of Virginia, Fairfax and Loudoun Counties, MWAA, WMATA, and the Department of Transportation (DOT).  Our audit objectives will be to:  (1) determine whether DOT's proposed oversight role for phase 2 adequately addresses key project risk areas, including cost, schedule, and financing; and (2) assess whether MWAA's phase 2 project plans rely upon reasonable assumptions of revenue from the Dulles Toll Road.”

Upcoming Conferences and Events

  • The Federal Bar Association’s Transportation and Transportation Security Law Section’s March Lawyers’ Luncheon will take place on Tuesday, March 27, 2012.

          The topic is:   “Regulatory Issues and Legal Perspectives on Airline Bankruptcies”

 

The panel participants will include:

  • Andrea Handel, Trial Attorney with the Department of Justice Civil Division, specializing in complex trial litigation, including airline bankruptcies (represents federal agencies, including DOT, FAA, and TSA in bankruptcy court proceedings)
  • Frank J. San Martin, Manager of the FAA Airports Financial Assistance Division in the Office of Airports
  • Lauralyn Remo, Chief of the Air Carrier Fitness Division in the Office of Aviation Analysis within the USDOT Office of the Secretary of Transportation.
  • Eric Smith, co-chair of the Aviation Group and member of both the Litigation Services and Business Services Departments at Schnader Harrison Segal & Lewis LLP (represents a large number of airports in airline bankruptcy proceedings)

The program will take place from 12:15 pm – 1:30 pm

Conference Room 8-9-10 DOT Conference Center

1200 New Jersey Ave., SE

Washington, DC 20590

Bring your brown bag lunch—beverages and cookies are provided.

To register, please email Jenny Bosak at jbosak@fedbar.org

Limited seating – Please register early

ACI-NA Legal Affairs Committee members interested in participating by conference call, please send a note requesting the dial-in number and passcode to mhargrove@aci-na.org   by 5 p.m. on Monday, March 26, 2012.

  • REGISTRATION FOR THE 2012 ACI-NA SPRING LEGAL CONFERENCE IS NOW OPEN-----“The ABCs of RFPs and Airport Procurement---Lessons from those who’ve been there and back.” The Conference will take place from April 25-28, 2012 at the Double Tree Hotel, Charleston, SC.   See the Preliminary Conference Agenda athttp://www.aci-na.org/sites/default/files/events/legalconferenceagenda.pdf  Early Bird Registration Deadline is April 2.

This year’s Spring Legal Affairs Conference, scheduled for April 25-28 at the DoubleTree Hotel in Charleston, South Carolina, features guidance on airport procurement issues during its sessions on Wednesday and Thursday.  The opening session will provide three recent airport procurement scenarios arising in three different airport contexts, all of which experienced award protests.  Throughout the sessions, speakers will discuss best practices in working through the sometimes complex environments in which airport contracting decisions are made.

One session will review the things to consider during the competitive selection process, including drafting RFPs, developing evaluation criteria, selection panels, vetting of panel members, responsible proposers and responsiveness of bids, handling questions from proposers, issuing addenda and granting extensions of time.  Another session will examine open records laws in different states and provide first-hand experience on what has to be handed over and when.  There will also be a session devoted to awards and protests, examining various protest procedures as well as issues of waiving errors, rejecting bids, “Best and Final Proposals”, how the ward is made and when, negotiations after the award and handling protest from disappointed bidders.  There will also be sessions devoted to: airport construction RFPs and competitive selection of design/build and CM/GC contractors; concessions RFPs and procurement processes; the award of professional services contracts, including the selection of architects and engineers, local rules on whether competitive selection is required, processes for the selection of outside counsel and bond counsel; and “sole source” situations and other exceptions to the competitive selection requirements.

On Friday, airport counsel involved in precedent-setting litigation, will share recent developments in those matters during the Litigation Update session.   Francine Kerner, Chief Counsel of the Transportation Security Administration, will provide an overview of current matters of interest in the airport security arena, and Daphne Fuller, Assistant Chief Counsel of the Federal Aviation Administration’s  Airports and Environmental Law Division, will discuss matters of interest to airport lawyers.  There will also be a panel including Supriya Raman, the FAA’s Program Manager of the Airport Disability Compliance Program, and Rebecca Springer of Crowell & Morning, on recently implemented government regulations affecting airports with respect to accommodation of disabled travelers and hiring and employment practices associated with disabled persons.  Other sessions will include a U. S. Government Affairs Update, a Transactions Update including assessments of impacts on airports, and legal issues worth noting from, recent domestic and international airline bankruptcies, and recent airline/airport consortiums that have led to more efficient and cost-effective airport services.  Friday’s sessions will conclude with a presentation on useful resources available from the ACI-NA website and the Airport Cooperative Research Program administered by the Transportation Research Board.

The conference will conclude on Saturday at noon following special legal ethics sessions focused on issues that arise during the airport procurement process, including real-life hypotheticals for small group discussions.  Attorneys will then have an opportunity to share unique issues of special importance during the concluding session:  The Legal Roundtable discussion.

Hotel and conference registration are both available now.  Great networking opportunities will be available in this historic city.  Registration is only a click away:  https://www.aci-na.com/scriptcontent/custom/Meetings/registrationLogin.cfm?meeting_where_to_next=http://www.aci-na.com/source/Meetings/cMeetingFunctionDetail.cfm?section=unknown&product_major=12412&functionstartdisplayrow=1

If you have information of interest to share, forward it to me by COB on Thursday of each week.

  Send it to:  mhargrove@aci-na.org

Have a great week!

Monica

Monica R. Hargrove
General Counsel

Direct: (202) 861-8088