Regulatory Agencies and International Organizations
If you are involved in aviation, you will deal with administrative agency regulations far more frequently than any other area of the law. Indeed, you will probably be confronted with making decisions based on the Federal Aviation Regulations (FARs) on a daily basis. Those regulations also establish standards of legal behavior by which a judge or jury may later decide whether you and your employer are legally liable for negligence in the event of an aircraft accident. Hardly any aspect of aviation today is unaffected by these regulations. That is why we begin with an examination of administrative law, with particular focus on the role of the Federal Aviation Administration (FAA) in administering the federal program of air safety regulation.
Since the 1920s, Congress has created a plethora of regulatory agencies to administer the many federal programs it has initiated. Indeed, federal agencies continue to grow and multiply, under Democratic and Republican administrations alike. We start here with an overview of the numerous U.S. administrative agencies most directly involved with some aspect of aviation, distinguishing them from each other according to the specific role played by each in regulating aviation. Although this chapter focuses on the U.S. model, virtually all nations have their own counterparts of these agencies, engaged in similar aviation regulatory activities. For example, at least 192 nations have their own domestic counterpart of the FAA, such as the European Union’s European Aviation Safety Agency, the Civil Aviation Authority of Singapore, the National Civil Aviation Agency of Brazil, the United Arab Emirates’ General Civil Aviation Authority, and the Civil Aviation Administration of China.
The ease with which civil aircraft cross national borders, air transportation’s key role in the global economy, and recent horrific and effective use of civil airliners as weapons of terror have made the regulation and development of civil aviation a continuing subject of not only national but also international concern.
This chapter also introduces the International Civil Aviation Organization (ICAO) and the International Air Transport Association (IATA), organizations that, although not technically regulatory agencies, play an important role in harmonizing technical standards for civil aviation worldwide.
Federal Administrative Agencies
The terrorist attacks of September 11, 2001, shook the United States to the core. Few industries—indeed, few aspects of American life—were untouched, though some were more deeply affected than others. Civil aviation, having been so infamously and effectively abused in these attacks as a weapon of terror, has borne the brunt of these changes.
One of the results of the attacks was the most sweeping reorganization of the federal government in over a half-century.
Transportation Security Administration (TSA) (www.tsa.gov)
Barely two months after the attacks and for the express purpose of improving security in all modes of transportation, including civil aviation, Congress enacted the Aviation and Transportation Security Act of 2001, creating the Transportation Security Administration (TSA). The TSA was originally established as an operating agency of the Department of Transportation (DOT), but moved into the Department of Homeland Security (DHS) when that agency was created.
Previously, operators of airports served by commercial airlines had been responsible for airport security, relying primarily on contractors, with some FAA oversight. The new law brought the responsibility for day-to-day screening of airline passengers, baggage and cargo into the federal arena, under the TSA, which immediately set about hiring and training security personnel. Most of the new federal screeners were the same individuals previously employed by those contractors that had been performing the function prior to its federalization. With a change of uniform and some additional training, they returned to the same work. However, in late 2004, the Screening Partnership Program (SPP) enabled airports to obtain TSA approval to replace those federal screeners with qualified, TSA-approved private sector vendors. At this writing, some twenty-two airports have taken advantage of the SPP and now utilize private sector contractors to provide passenger and baggage screening services.
The TSA also took over from the FAA the responsibility for inspecting and testing security measures at airports, with the added responsibility for the same at other transportation facilities, including foreign aircraft repair stations. Congress also empowered the TSA to receive, assess, and distribute intelligence information related to transportation security. The new agency was directed to develop plans, policies, and strategies for dealing with threats to transportation security and to coordinate countermeasures with other federal agencies. Congress also ordered that the Federal Air Marshal program be beefed up and that steps be taken to increase the availability and use of explosive detection systems at air carrier airports.
Under the Secure Flight Program, the TSA is now responsible for maintaining the Terrorist Watchlist and related No Fly and Selectee lists. The “watch list” of known and suspected terrorists is a uniform list used to identify persons who should be prevented from boarding (the No Fly List) or who should undergo additional security scrutiny (the Selectee List). The TSA began taking over the responsibility for the pre-boarding matching of airline passengers’ names against these lists from the airlines in early 2009.
Transportation Security Oversight Board (TSOB)
Congress’ initial investigation into the terrorist attacks revealed that various federal law enforcement agencies had clues that, if assembled together and investigated coherently, might have revealed the plot and enabled prevention, but that these agencies tended to hoard, rather than share, potentially crucial intelligence information. In an effort to address that shortcoming, the Aviation and Transportation Security Act also created the Transportation Security Oversight Board (TSOB), an extremely high-level panel composed of the Secretaries of Homeland Security, Transportation, Defense, and Treasury; the Attorney General, and the Director of National Intelligence (or designees of any of the foregoing), along with a presidential appointee representing the National Security Council (NSC). The TSOB was made responsible for assuring the coordination and sharing of intelligence relating to threats against transportation.
Next, Congress and President George W. Bush created the new Department of Homeland Security (DHS), now the largest federal department. Paralleling President Truman’s epic 1947 merger of all branches of the U.S. armed forces into a new Department of Defense (DoD) to better coordinate the nation’s defense against military threats, 24 federal agencies were brought under the new DHS to protect the nation against further terrorist attacks and respond to natural disasters. Agencies brought into the DHS include the following (italics indicate the agency’s former home in the federal bureaucracy):
Coast Guard (Department of Transportation)
U.S. Customs Service (Department of the Treasury)
Immigration and Naturalization Service (INS) (part, from Department of Justice)
Transportation Security Administration (TSA) (Department of Transportation)
Federal Protective Service (General Services Administration)
Federal Law Enforcement Training Center (Department of the Treasury)
Animal & Plant Health Inspection Service (part, from Department of Agriculture)
Office for Domestic Preparedness (Department of Justice)
Federal Emergency Management Agency (FEMA)
Strategic National Stockpile & Disaster Medical System (Department of Health and Human Services)
Nuclear Incident Response Team (Department of Energy)
Domestic Emergency Response Teams (Department of Justice)
National Domestic Preparedness Office (FBI)
CBN Countermeasures Program (Department of Energy)
Environmental Measures Laboratory (Department of Energy)
National Biological Warfare Defense Analysis Center (Department of Defense)
Plum Island Animal Disease Center (Department of Agriculture)
Critical Infrastructure Assurance Office (Department of Commerce)
Federal Computer Incident Response Center (General Services Administration)
National Communications System (Department of Defense)
National Infrastructure Protection Center (FBI)
Energy Security and Assurance Program (Department of Energy)
The Aviation and Transportation Security Act originally assigned the attorney general responsibility for screening all aliens applying for training at U.S. flight schools for security risks. Due to comparatively low fuel costs, prevalent VFR weather, and abundant suitable airspace, the United States (and particularly Florida and the desert southwest) was a popular destination for large numbers of foreigners wishing to learn to fly (and land). This new requirement hit U.S. flight schools—many of which were heavily reliant on foreign students—hard and hundreds closed their doors. This screening duty was later transferred to the new DHS and limited to students desiring to learn to fly aircraft with a maximum certificated gross takeoff weight of more than 12,500 pounds. As required by Congress, DHS now gives quick service to these foreign students, acting on them within five days.
Aviation security law is discussed in much greater detail in Chapter 15.
The U.S. Department of Transportation houses a variety of federal agencies dealing with policy and regulation of various means of transportation of people and goods. DOT agencies having jurisdiction over various aspects of transportation include the Federal Aviation Administration (FAA), Federal Highway Administration (FHWA), Federal Motor Carrier Safety Administration (FMCSA), Federal Railroad Administration (FRA), Federal Transit Administration (FTA), Maritime Administration (MARAD), National Highway Traffic Safety Administration (NHTSA), Pipeline and Hazardous Materials Safety Administration (PHMSA), Research and Innovative Technology Administration (RITA), St. Lawrence Seaway Development Corporation (SLSDC), and Surface Transportation Board (STB). The head of the agency is the Secretary of Transportation.
In civil aviation, the DOT amasses and publishes a wealth of detailed operational and financial data and statistics on airlines and airports, available online at http://www.rita.dot.gov/bts/sites/rita.dot.gov.bts/files/subject_areas/airline_information/index....