Reforming the TSA so airport security isn’t impacted by government shutdowns

During a lapse in congressional appropriations and a partial government shutdown, most federal employees are not paid. This includes the Transportation Security Administration’s (TSA’s) workforce that staffs security checkpoints at airports across the country. Yet TSA’s screeners have a high attrition rate in normal times, so missed paychecks will likely result in significant numbers of them calling out sick or resigning to seek other employment opportunities. Indeed, Congress was ultimately persuaded to end the last government shutdown in 2018-2019 in part because many unpaid TSA screeners stopped showing up to work, leading to long lines at airport security checkpoints and causing entire terminals to be closed at major airports in Houston and Miami.

This is simply no way to run airport security screening and underscores the need for reforming the TSA. Reason Foundation has long supported reforms to TSA’s governance model to improve the provision of airport security screening in the United States. To insulate airport security screening from congressional bickering and government shutdown risk, as well as improve its efficiency and effectiveness, we propose the following three reforms: separate the provision of airport security screening from its regulation; allow airports to contract directly with private security providers; and convert the 9/11 Security Fee into a dedicated local user fee.

To that end, we have developed draft legislation, which we are calling the TSA Reform Act, to detail and help implement these reforms. This proposed legislation is contained in Appendix A of this memorandum.

Separate the provision of airport security screening from its regulation

Following the enactment of the Aviation and Transportation Security Act (ATSA) of 2001, U.S. airport security screening was centralized under TSA. Importantly, the law tasked TSA with both providing screening services and regulating those services. This dual mandate combines the regulator with the regulated entity and represents an inherent conflict of interest. 

As with airlines, railroads, and automobiles, arm’s-length regulation by a government regulator and regulated entities is necessary to reduce the risks of regulatory capture. In the case of European Union member states, airport screening is the legal responsibility of airport operators. These airports either provide screening services themselves or contract with private providers.

Annex 17 to the Convention on International Civil Aviation (commonly known as the Chicago Convention) contains the International Civil Aviation Organization’s standards and recommended practices for aviation security. Paragraph 3.5.1(a) states that parties—including the United States, which is a founding signatory and the treaty’s depositary—should ensure the “independence of those conducting oversight from those applying measures implemented under the national civil aviation security programme.”

As a combined regulator and provider, TSA’s current institutional design fails to align with international consensus standards.

To address TSA’s core self-regulator design flaw and to align U.S. screening with global best practices, TSA should be reformed to focus strictly on the regulation of security services. Section 110(b) of ATSA replaced an earlier requirement that airport security screening be conducted “by an employee or agent of an air carrier, intrastate air carrier, or foreign air carrier” with a mandate that screening “shall be carried out by a Federal Government employee” (presently codified at 49 U.S.C. § 44901(a)).

We propose that this be amended to require instead that airport security screening be conducted by “an employee or agent of an airport” who would be certified and regulated by TSA.

Allow airports to contract directly with security providers

The major exception to TSA’s general security screening monopoly under ATSA Section 110(b) is the Screening Partnership Program, which allows airports to apply to seek the services of private screening companies (49 U.S.C. § 44920). TSA’s website lists 20 airports that are currently enrolled in the Screening Partnership Program, mostly small airports, but also includes Kansas City International, Orlando Sanford International, and San Francisco International.

Growth in the number of airports opting for private screening has stalled. Observers have identified a complicated, time-consuming, opaque, and biased process as the principal cause for the lack of interest in airport security contracting. A normal government contracting process typically involves a government agency issuing a request for proposals from qualified firms and then initiating a competitive bidding process. In the case of airport security, this would perhaps involve a sponsor airport beginning procurement from a list of security companies certified by the security regulator and then selecting the firm that best fits the airport’s particular needs.

This is not how the Screening Partnership Program is designed. Instead, under current law, an airport seeking to opt in to private screening must submit a detailed request to TSA. If TSA decides to grant the airport entry into the Screening Partnership Program, it will then determine which security company it believes best fits the needs of the airport applicant. As part of this selection process, the airport has only a minor advisory role. The security company is then assigned to the airport, and the private screening company is contracted to TSA; rather than a contract between the company and the airport it would serve.

We propose that the basic statutory framework of the Screening Partnership Program be amended to allow airports to contract directly with security screening providers or to self-provide screening services. The screening companies should be certified by TSA to be eligible for selection by individual airports, and airports should be able to choose the screening companies that best fit their needs and terminate contracts with those that fail to provide adequate service. Airports that choose to self-provide screening services should be subject to the same TSA certification and oversight as private screening companies.

Convert the 9/11 security fee into a dedicated local user fee

The principal barrier to direct airport contracting with security screening providers is payment responsibility. Under the Screening Partnership Program, rates are determined by TSA, which then pays the contracted providers and assigns them to willing airports. An unfunded mandate on airports to provide certain security services without compensation would surely be opposed by the airport industry.

To address these legitimate concerns, we recommend that Congress reform the existing security service fee, commonly referred to as the 9/11 Security Fee, which is assessed on airline tickets. Currently, airlines are required to impose security fees of $5.60 per one-way trip and a maximum of $11.20 for round-trip tickets (49 U.S.C. § 44940(c)(1)). Airlines then remit the fee revenue to TSA. However, since the enactment of the Bipartisan Budget Act of 2013, Congress has diverted one-third of 9/11 Security Fee revenue for deficit-reduction purposes (49 U.S.C. § 44940(i)).

To fund airports’ security screening operations, Congress should convert the 9/11 Security Fee into a dedicated local airport user fee akin to the passenger facility charge (PFC). Congress authorizes enplaning airports to impose PFCs of up to $4.50 per flight segment, with a maximum of two PFCs per one-way trip ($9) and four PFCs per round trip ($18) (49 U.S.C. § 40117(b)(1)). Airlines collect the fees on passenger tickets and remit the revenue directly to the airports at which the passengers enplaned. The Federal Aviation Administration regulates the use of airport PFC revenue by project eligibility criteria (14 C.F.R. Part 158). Despite these restrictions, PFC revenue now accounts for a large share of commercial service airport capital investment, particularly on terminal projects.

A PFC-style 9/11 Security Fee would restore the 9/11 Security Fee to its original purpose of advancing aviation security. Like the Federal Aviation Administration’s oversight of the passenger facility charge, TSA should regulate the use of these funds to ensure they are spent on security-related projects and operations. Revenue from a reformed 9/11 Security Fee would be sufficient to cover security screening services at most airports, although Congress should require, as part of these reforms, that TSA conduct a detailed financial analysis. Low-volume airports that might be unable to raise sufficient revenue to provide effective security screening should be supported by a separate account established by Congress and funded through annual appropriations, along with TSA administrative costs and other activities lawmakers deem appropriate.

Conclusion

These reforms to the Transportation Security Administration would significantly improve airport security governance and effectiveness in the United States. They are long overdue and are justified on their own terms. But the latest government shutdown, with the looming threat of commercial air travel chaos, underscores the need for these reforms. Airport security screening is simply too important to be left to the whims of Congress. 

Reason Foundation’s proposed TSA Reform Act is available here.

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Source: https://reason.org/commentary/reforming-tsa-airport-security-government-shutdowns/