When the Transportation Security Administration (TSA) set forth its Notice of proposed rulemaking (NPRM) on October 30- 2008 outlining its new proposed Large Aircraft Security Program- Other Aircraft Security Program- and Airport Operator Security Program (hereinafter known as the LASP)- it was a cause for great concern to many in the general aviation community. While the idea behind the LASP is to enhance ...

AvBuyer  |  01st June 2009
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TSA’s Large Aircraft Security Program
Concerns abound for proposed new security program.

When the Transportation Security Administration (TSA) set forth its Notice of proposed rulemaking (NPRM) on October 30- 2008 outlining its new proposed Large Aircraft Security Program- Other Aircraft Security Program- and Airport Operator Security Program (hereinafter known as the LASP)- it was a cause for great concern to many in the general aviation community. While the idea behind the LASP is to enhance the security measures in place for general aviation- it imposes what many people feel are unnecessary and overreaching rules on an industry that already has its own security policies in place.

Because of the controversial nature of the LASP- the TSA has received thousands of comments on the NPRM from everyone from individual pilots to United States Representatives to the Chamber of Commerce. The areas that seem to cause the most concern in the general aviation community are the following:

1. The 12-500 weight threshold for “large aircraft”;
2. The prohibited items list containing over eighty prohibited items- many of them commonly carried on non-commercial flights;
3. The watch-list matching of passengers on non-commercial flights;
4. The proposed use of third-party security auditors;
5. The implementation of an operator security program for each operator;
6. The required use of federal air marshals on certain flights; and
7. New airport security requirements for hundreds of smaller airports.

The first issue is the fact that the LASP considers any aircraft with a maximum take-off weight of more than 12-500 pounds to be a “large aircraft”. Many- if not most aircraft used in business and general aviation today would suddenly be considered large aircraft.

In addition to many business jets- historic aircraft would also be subject to the LASP. So called “warbird” aircraft regularly flown and admired at air shows by history buffs- aviation enthusiasts and the general public- such as P-47s- TBMs- B-17s- B-25s and T-33s- would be subject to the LASP.

To many- the idea of a passenger at an air show needing to be vetted against a no-fly list before he can pay to take a quick flight in an old warbird seems at best to be overkill and at worst ridiculous. While the scope of the LASP and its application to an estimated 10-000 or more aircraft that are currently not subject to onerous security regulations is probably the biggest single concern of many of the comments to LASP- there are additional concerns about the requirements actually imposed under the LASP.

The LASP sets forth a list of over eighty items that are prohibited from being carried aboard large aircraft. Prohibited items include items that are currently routinely carried aboard business aircraft- including everyday tools- recreational firearms- and sporting goods.

The LASP states in part- “TSA proposes that weapons may be stored in a cargo hold… or may be stored in a locked box in the cabin under the direct control of the in-flight security coordinator.” While not being able to carry a firearm or even a bat on to a commercial flight seems eminently reasonable to most people- this requirement presents a special problem when applied to smaller aircraft.

Take for example a King Air 350 or Gulfstream IV; these aircraft do not have a separate baggage compartment that is not accessible from the cabin. This means that prohibited items would have to be kept in a locked box under the direct control of the new “in-flight security coordinator” which would likely be the pilot of the aircraft in most instances.

Many comments to the LASP from pilots state that being required to control a locked box of prohibited items during flight is burdensome under the best of circumstances and unsafe under the worst of circumstances.

Many smaller aircraft that frequently carry contractors- construction workers- hunters- sportspersons and others who routinely bring a prohibited item such as a wrench- golf club or rifle on board the aircraft would be disproportionately impacted by this proposed rule.

Members of the general aviation community point out that logically part of the security of private flights comes from the familiarity of the persons on board with each other and the operator. Unlike a commercial flight- a pilot will usually know who is on board- often quite well.

New rules under the LASP would require aircraft operators to check their passengers against a “No Fly List” and “Selectee List-” both watch-lists that are part of the database maintained by the Terrorist Screening Center. Under the proposed rule- a flight subject to this requirement could not take-off until they had received approval from a watch-list service provider. This would almost certainly cause delays on certain flights and negate two of the primary advantages of private travel- flexibility and efficiency.

A larger concern is the inaccuracy of the current watch-lists. The watch-lists in place for commercial flights routinely cause numerous delays- while the vast majority of watch-list matches are made in error.

Perhaps one of the most costly measures proposed by the LASP is the institution of third-party security audits of each operator’s security program. This would require operators of aircraft subject to the LASP to pay independent consultants to periodically conduct security audits.

The requirements of the audit are not very clear under the proposed rule; questions involving the timeframe- scope- and cost of each audit still need to be resolved. Further- the proposal does not make any allowance for a management company to facilitate the execution of an owner’s security program- while contract pilots and crew are not addressed at all. At present- there seems to be no limit on what an audit could cost (and audits could prove very expensive if a limited number of private auditors are given a de facto monopoly by the TSA).

In addition- several concerns have been raised by the aviation community and other persons in the United States government about the security and logic of outsourcing security functions at all.

As proposed- audits would be made of the formal security program and required to be instituted by each operator. The new operator security program outlined by the LASP includes the designation of key security personnel- law enforcement assistance training- procedures for addressing name matches against the no-fly list- procedures for bomb threats- and rules and procedures to deal with the new security requirements of the LASP.

Commentators have argued that the institution of a formal security program just layers expensive and inefficient bureaucratic and administrative requirements on the aviation security measures already put in place by the general aviation industry.

The proposed requirement of allowing federal air marshals on certain non-commercial flights have raised many objections - the TSA itself acknowledges that federal air marshals rely on anonymity to be effective.

As has been pointed out in numerous comments to the LASP- anonymity is nearly impossible on private aircraft since most of the passengers and crew know each other. The logical conclusion of most people in general aviation is that the requirement of providing for federal air marshals on certain flights is burdensome and expensive for operators without providing a clear security benefit.

Finally- increased security requirements under LASP would affect an estimated three hundred and twenty airports that are identified as “reliever airports” or that regularly serve scheduled or public charter operations in large aircraft. These airports would need to adopt an expensive “partial” security program.

Many comments to LASP voice concern that in practice- this may prevent general aviation operators from being able to use smaller regional airports that do not have this partial security program in place- increasing costs for operators- harming smaller airports and increasing congestion at larger airports without providing a clear security benefit.

The official comment period for the Transportation Security Administration’s Large Aircraft Security Program (LASP) ended on February 27th- 2009. More than 4-200 comments were submitted by the cutoff date- which according to USA Today were the most comments TSA has received regarding any single initiative since the agency was created in the wake of 9/11.

By all reports- the comments have been almost entirely critical of the LASP. In a March 2- 2009 letter to the Transportation Security Administration- the Chairman of the Committee on Homeland Security- U.S. Representative Bennie G. Thompson himself voiced “serious concerns… about several components in the NPRM” and urged postponement of final implementation of the new general aviation security regulations until the new TSA leadership has had the opportunity to review the LASP and engage in further discussion with Congress and the general aviation industry.

U.S. Representative Vernon Ehlers said of the LASP after a March 2009 meeting with TSA officials- “This is a prime example of a stupid rule. Simply put- the threat does not warrant this level of regulation”. U.S. Representative Jerry Costello- chairman of the House aviation subcommittee- commented- 'I believe this proposed rule is a solution in search of a problem and we will be monitoring it very closely. If the rule is formalized in its current state- we will seek legislative action [to defeat it].'

On March 18th- the TSA announced the appointment of a liaison to work with the general aviation industry and address concerns about recent security measures such as the LASP. The newly appointed liaison- Juan Barnes wrote to the general aviation industry- 'You are encouraged to submit inquiries regarding TSA programs- policies and security directives. Your inquiry will be reviewed- and forwarded to the appropriate office and personnel within TSA to ensure a prompt and accurate response.”

In addition- monthly teleconferences between the liaison and the general aviation community are planned. While further dialogue between the general aviation industry and the TSA is a step in the right direction- many concerns about the LASP remain.

Undoubtedly- key parties in the government and the private sector will continue to closely monitor the progress of the LASP. While no one knows what the future of the proposed Large Aircraft Security Program will be- one thing is certain; there is plenty more discussion to come.

Keith G. Swirsky is President of GKG Law and is a tax specialist concentrating in the areas of corporate aircraft transactions and aviation taxation. The firm’s business aircraft practice group- chaired by Mr. Swirsky- provides full-service tax and regulatory planning and counseling services to corporate aircraft owners- operators and managers. The group’s services include Section 1031 tax-free exchanges- federal tax and regulatory planning- state sales and use tax planning- and negotiation and preparation of all manner of transactional documents commonly used in the business aviation industry. Mr. Swirsky may be reached at the firm’s Washington- D.C. office- 1054 31st Street- NW- Suite 200- Washington- D.C. 20007- Telephone: (202)342-5251- Facsimile: (202)965-5725- E-mail: kswirsky@gkglaw.com.

Kara M. Kraman is a business aviation and tax attorney concentrating in the area of business aircraft transactions and operations at GKG Law- P.C. Kara can be reached at the firm's Minnesota office- at 700 Twelve Oaks Center Drive- Suite 700- Wayzata- MN 55391- telephone: (952) 449-5748- facsimile (952) 449-0614- email: kkraman@gkglaw.com


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