Consequences & Prohibition of Certain Items to Board Planes

April 14, 2014
Policy Analysis Two

Abstract
This paper explores the issue of the Transportation Security Administration (TSA)—the Federal Aviation Administration (FAA), allowing marijuana on planes, medical or not. This paper also addresses the issue of what steps TSA aviation security would follow as a procedure of an individual attempting to or boarding an airplane with marijuana. TSA has a “Prohibited Items” policy that specifically lists items prohibited from airplanes (“Prohibited Items,” 2014). This particular procedure would call for an adjustment in the TSA’s budget plan for the fiscal year 2015. Keywords: TSA, airplanes, FAA, prohibited items, medical marijuana

According to the Department of Homeland Security, Transportation Security Administration (TSA), the Federal Aviation Administration (FAA), have certain items that are prohibited from being brought onto airplanes in carry-on and checked bags (“Prohibited Items,” 2014). Although some items are generally permitted, they may be subject to additional screening or they will even be rejected if they trigger any alarms during the screening process, appear that someone has tampered with it, or pose other security problems (“Prohibited Items,” 2014). Some dangerous items are illegal in certain states and passengers will be subject to the state laws. Each passenger is responsible for obtaining the knowledge that origination and destination cities may have local laws prohibiting the possession of items such as: sharp objects, sporting goods, guns and firearms, tools, martial arts & self-defense items, explosive and flammable materials, disabling chemicals, and other dangerous items (“Prohibited Items,” 2014). However, passengers may be allowed to board planes with items such as marijuana that is still not legal in some states (Anzuoni, 2013). Consequences for this particular violation would have to be specified because there is already a policy in place that lists the fines for certain violations. The question to raise would be: “How could medical marijuana be prohibited on planes, yet not every state has legalized marijuana”? There would have to be some type of federal and state agreement that specifies the consequences, if any, for passengers with marijuana, flying through a state where is isn’t legal and individual passenger could possibly have to step off the plane in that certain state for a few hours. The TSA has a policy that is a great way to enforce illegal acts towards passengers who decide that they will carry prohibited items regardless of harming other passengers, themselves, or not. In 1970, Congress enacted laws against marijuana based in part on its conclusion that marijuana has no scientifically proven medical value. Likewise, the Food and Drug Administration (FDA), which is responsible for approving drugs as safe and effective medicine, has thus far declined to approve smoked marijuana for any condition or disease (“The DEA Position,” 2013). Indeed, the FDA has noted that “there is currently sound evidence that smoked marijuana is harmful,” and “that no sound scientific studies support medical use of marijuana for treatment in the United States, and no animal or human data support the safety or efficacy of marijuana for general medical use (“The DEA Position,” 2013).” The National Transportation Safety Board investigation of a small plane crash near Walnut Ridge, Arkansas, killing a passenger and the pilot, was the result of pilot error. Pilot Jason Heard failed to fly high enough and maintain enough airspeed to avoid a stall (“The DEA Position,” 2013). The report notes that Pilot Jason Heard had enough marijuana in his system to have contributed to the accident (“The DEA Position,” 2013). Medical marijuana is permitted in half the United States, but federal law still considers weed to be illegal (Anzouni, 2013). Some say that bringing marijuana onboard airlines for some domestic travel shouldn’t necessarily raise any red flags. Some TSA agents in some states may choose to look the other way if they stumble upon certain contraband that may be illegal on a federal level but allowed locally (Anzouni, 2013). A freelance reporter and blogger for Lawyers.com, Aaron Kase, wrote that “Although it’s a try-it-at-your-own-risk scenario, airplane in certain situations are being permitted to carry marijuana on board, even if TSA agents sniff out the drugs” (Anzouni, 2013). Kase believes that boarding a commercial airliner with any federally-prohibited drug is still a no-no in the eyes of Uncle Sam, but the TSA isn’t obligated to scour luggage for marijuana and arrest every airport patron processing a little bit of pot (Anzuoni, 2013). A statement on TSA’s official website acknowledges that the federal agencies staffed at security checkpoints at airports across America do not search for any drugs, and if they discover contraband , they refer the matter to a law enforcement officer (Anzuoni, 2013). “Whether or not marijuana is considered “medical marijuana’ under local is not relevant to TSA screening because TSA is governed by federal law provides no basis to treat medical marijuana any differently that non-medical marijuana” (Anzuoni, 2013). The final decision rest with TSA on whether to allow any items on the plane”, and nothing explicitly instructs those agents to detain or arrest anyone traveling with marijuana, medical or otherwise (Anzuoni, 2013). Keith Stroup, attorney and founder of the National Organization for the Reform of Marijuana Laws said “I hear reports from people flying from one medical use site to another or flying from one part of California to another and they generally report that if they carry their authorization, they show the letter and are sent on their way and are allowed to keep their medicine (Anzuoni, 2013). He thinks the same policy should apply Colorado to Washington or Washington to Colorado.” TSA has enforced federal law in areas where state legislation legalized marijuana (Anzuoni, 2013). Attorney Stroup told Kase that “he’s delighted to hear that because I think it shows that TSA primarily is acting as it was intended when it was established, to protect all of us when we travel on the airlines and to thwart terrorists (Anzuoni, 2013)”. It is not supposed to be anti-drug agency. “What nobody feels 100 percent comfortable with is it’s a grey zone you’re going through. It’s technically still illegal even though they aren’t enforcing it very strongly (Anzuoni, 2013).” The Enforcement Sanction Guidance Policy provides guidance for imposing civil monetary penalties up to $27,500 per violation for aircraft operators, up to $10,000 per violation for surface transportation modes, and up to $11,000 per violation for all other persons, including but not limited to individuals, airport operators, indirect air carriers, and small business concerns (“Enforcement Sanctions Guidance," 2013). This sanction guidance provides agency enforcement personnel with guidance in selecting appropriate sanctions for civil penalty enforcement actions and to promote consistency in enforcement of TSA regulations. In selecting an appropriate sanction, TSA considers the totality of circumstances, including any aggravating and mitigating factors (“Enforcement Sanctions Guidance,” 2013). A sanction amount at the higher end of a range is appropriate where there are aggravating factors surrounding the violation, while a sanction amount at the lower end of the range is appropriate for first time violations and where mitigating factors exist (“Enforcement Sanctions Guidance,” 2013). Based on extreme aggravating or mitigating factors, TSA may seek a sanction amount that falls outside the sanction ranges (“Enforcement Sanctions Guidance,” 2013). As a general matter, TSA considers the following aggravating and mitigating factors: significance or degree of the security risk created by the violations; nature of the violation; past violation history; violator’s level of experience; attitude of violator, including the nature of any corrective action taken by the alleged violator; economic impact of the civil penalty on the violator; criminal sanctions already paid for the same incident; disciplinary action by the violator’s employer for the same incident; artful concealment; and fraud and intentional falsification (“Enforcement Sanctions Guidance,” 2013). Penalty considerations for violations by individuals, who are not regulated entities or employed by a regulated entity, differ from the considerations for regulated entities such as an aircraft operator, airport, or indirect air carrier (“Enforcement Sanctions Guidance,” 2013). Deterrence against an individual generally does not require a penalty range as high as that against a regulated entity (Enforcements Sanctions Guidance,” 2013). Some security violations by individuals for prohibited items discovered at checkpoint/sterile area/onboard aircraft--loaded firearms (or unloaded firearms with accessible ammunition): $3,000-$7,500+ criminal referral; unloaded firearms: $1,500-$3,000+ criminal referral; knives that are illegal under state or local law: $250-$1,500; any flammable liquid or gel fuels, including gasoline, lighter fluids, cooking fuels, and paint thinners: $250-$1,500; self-defense spray and liquid bleach: $250-$1,500; and more than 10 oz. of dynamite and hand grenades: $6,000-$11,000 (“Enforcement Sanctions Guidance,” 2013). This policy already exists and it enforces the different violations and fines for certain illegal items if an individual aboard a plane with these items. The sanction policy lists items that are prohibited on airplanes that an average person would probably not carry; however, it does not list marijuana. Marijuana is not legal in every state nor is it a law that it is allowed on airplanes. If marijuana is to be allowed on airplanes for medical reasons, the lawmakers in the Department of Homeland Security, TSA, and FAA would have to include marijuana into the table because it is not legal in some states. If an individual aboard an airplane with marijuana, aircraft operators would not know how to handle the situation or what fine the individual would be held accountable for because it is not listed in the sanctions policy. Marijuana is now legal in some states and individuals who live in those particular states may think it is okay to aboard an airplane with it since there is no set fine for it. TSA aviation security would call for about 10 personnel responsible for the checkpoints and possibly k-9 dogs who could detect whether or not a passenger is carrying marijuana aboard. This adjustment would cost about $10,000 for each personnel, $30,000 for about 2 or 3 k-9 dogs; adding approximately $150,000 to the TSA’s budget for the fiscal year 2015.

References
(2013). The DEA Position on Marijuana. The Department of Justice, 1-70.
Anzuoni, M. (2013, 10 7). TSA might allow passengers to board planes with marijuana. RT Question More. Retrieved from rt.com/tsa-marijuana-boarding-washington-861/
U.S. Department of Homeland Security, Transportation Security Administration. (2013). Enforcement Sanctions Guidance
U.S. Department of Homeland Security, Transportation Security Administration. (2014). Prohibited Items