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The year 2008 will go down in history as the year when the United States of America broke the color line on the nation’s highest office- with the election of Barack Obama as president. For users of private aircraft- however- 2008 appears destined to go down in history as the year when the government the new president heads started an unprecedented level of intrusion into the private lives and private business of its citizenry. That ...

Dave Higdon   |   1st January 2009
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Dave Higdon Dave Higdon

Dave Higdon is a highly respected, NBAA Gold Wing award-winning aviation journalist who has...
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Private aviation still in TSA crosshairs.

The year 2008 will go down in history as the year when the United States of America broke the color line on the nation’s highest office- with the election of Barack Obama as president. For users of private aircraft- however- 2008 appears destined to go down in history as the year when the government the new president heads started an unprecedented level of intrusion into the private lives and private business of its citizenry.

That dubious distinction will be sealed only if the rules proposed in late October by the Transportation Security Administration (TSA) go into effect as written. More details shortly. That Notice of Proposed Rulemaking (NPRM) is only one step taken in 2008 by the TSA that impacts private aircraft operators.

Those other steps involved added rules for private aircraft inbound to the United States from outside its borders and steps to permanently ensconce the dubious establishment of the controversial Air Defense Identification Zone (ADIZ) around the nation’s capital. Taken collectively- these steps document concretely that the TSA listens only slightly to the general aviation community- despite its strong claims to the contrary.

If the new NPRM becomes law as proposed- many worry that the TSA will propose further expansion of its intrusive oversight over an ever-widening sphere of private aircraft operations.

One denizen of 800 Independence Avenue- Washington- D.C. created his own acronym for the TSA’s proposed Large Aircraft Security Program (LASP): “I call it the ‘Lousy Approach to Senseless Projection’. “

Those folks seem to lay awake at night trying to figure a legal way to manage and monitor the movement of GA aircraft-” the aviation agency staffer explained. “They project their fear of this uncontrolled movement into being sure- evidence to the contrary- that small planes just must be a threat. They couldn’t figure out one (legal justification) in September 2001 to keep GA on the ground. They think they’ve found the start of a way with this LASP proposal.”

For any operator involved in even parttime use of an aircraft under FAR 135 rules- much of the TSA’s proposed Large Aircraft Security Program likely rings familiar. At its face- the LASP seems like an expansion of the Private Charter Standard Security Program (PCSSP) and the so-called Twelve-Five Standard Security Program (TFSSP) rules long in effect over for-hire aircraft weighing more than 100-309 and 12-500 pounds- respectively.

In legal terms- the TSA acknowledges that the LASP proposal is an attempt to modify the other two programs. In fact- the LASP goes further and- for the first time in American history- injects the federal government into the use of privately owned property by private citizens not directly engaged in commerce.

In a nutshell- the TSA’s LASP proposes to give the agency authority to require operators of such private aircraft – individuals and entities- alike – to develop- get TSA approval for- and implement a formal security program for the operation of their aircraft weighing 12-501 pounds or more at its certificated maximum weight.

That program would- as proposed- have to include some common elements- including fingerprinting and criminal background checks of pilots flying privately owned and operated eligible aircraft. This requirement would apply even if the pilot is the actual owner or the owner of the private business using the business-owned aircraft in FAR 91 operations.

Currently- the TSA’s TFSSP rules require the same steps of pilots engaged in flying for hire charter operations under FAR 135; the PCSSP program does much the same. But the TSA proposes to go further with LASP and impose the screening and background checking of crews of operators of private aircraft where there is no carriage for the general public.

Additionally- passengers in those aircraft would also have to be cleared to fly in a person or company’s private aircraft by requiring the aircraft owner or pilot to submit those names for a check against the notoriously flawed terrorist watch-list before a flight could proceed; this is the equivalent- many legal authorities say- of the federal government approving who can go on a private mode of travel- as well as when- and with whom.

So the owner/pilot would have to submit for clearance the names of family members- friends and employees – although the TSA hints that a blanket clearance may be possible for such regular and frequent travelers on the effected aircraft.

Additionally- the TSA wants materials carried by those passengers to be screened and cleared of materials listed on the banneditems list the TSA uses for commercial flights. So a pilot may be bared from having a crash axe- pocket knife or pool cue in a space accessible by the passengers – and the passengers may have to leave behind private items such as nail files- clippers and scissors when flying with friends or family members.

And there’s more… Even airports capable of accommodating such aircraft would be required to establish a security program for handling those large aircraft in a way that segregates them from others. Indeed- people who use those airports – regardless of the weight of their aircraft – would be required to comply with the airport’s measures aimed at the larger aircraft.

To say that business aviation interests were dismayed by the TSA’s proposal would be among the understatements of the decade – and you well know the kind of decade we’ve had so far.

The TSA’s own website documents on General Aviation note that among the agency’s responsibilities is: “Recognizing the diversity that exists in the industry and that ‘one size’ security does not fit all stakeholders…”

Along with using phrases like “threat based”- and “risk management approach” to its general aviation mission- TSA officials repeatedly assured aviation trade association executives and industry leaders that it was taking all of these aspects into account in developing a new security program for private aircraft flown by private individuals or companies as private aircraft. The last such assurances came directly from the TSA’s general manager for general aviation- Michal Morgan during a public briefing held for attendees of the National Business Aviation Association convention in October.

That briefing occurred the morning of the convention’s final day- Wednesday- October 8. The next morning- an advance copy of the NPRM appeared on the TSA’s website.

“One day we’re told from the horse’s mouth that the TSA has- over the two years of developing this proposal- taken into account all our concerns-” said a senior official of a major aviation trade group shortly after. “Then the next day we see this document. We were blindsided. Pure and simple- it was as if all the discussions and ground work we’d done meant nothing. We were blindsided!”

Said another trade-group chief exec: “TSA just blindsided us with all their assurances that our concerns were being heard.” These and other aviation officials declined to be identified because of the need to present a temperate reaction to the agency’s proposal. But the anger and frustration is there.

“It’s as if we’d never met- or talked- or worked with them- at all-” said the second of the association executives. And we’ve yet to receive an explanation of how these rules would prevent anything.”

That appearance on the TSA web pages did not constitute an official NPRM; publication in the Federal Register constitutes the official public notification of changes to rules and regulations and proposals such as TSA’s LASP NPRM. The formal publication of the NPRM came on October 29 with a 60-day comment period ending in late December 2008.

When approached for an outline of steps planned- NBAA president Ed Bolen told World Aircraft Sales Magazine- “Our first order of business is to request an extension of the comment period. Given the length of the proposal and the extreme issues involved- 60 days is not long enough to talk to our members- craft a response and communicate what we’re recommending.”

In early November- the NBAA joined with the Aircraft Owners and Pilots Association in presenting TSA with a formal request that the comment period be extended. Missouri congressman Rep. Sam Graves (R)- an active pilot himself- added his voice to the call and quickly TSA announced that the comment period had been doubled to 120 days; the comment period now ends February 27 instead of December 29. But even before the TSA published its proposal and formally started the rulemaking process- NBAA- AOPA- the EAA- NATA and sundry other aviation organizations were already acting.

NBAA- for one- formed a committee of its members to meet with groups of individual companies drawn from its considerable list of members. The committee and those hangar meetings began even before the NPRM’s publication.

Reaction among NBAA member-company pilots- as well as private owners of impacted aircraft and operators of impacted airports seem universal in their insistence that the rules seek to solve a non-existent problem along with a determination to fight against implementation of LASP. “This just goes way overboard-” said the manager of a regional airport in the Midwest that- because of its runway capabilities and indigenous based aircraft- will be forced to create a program to satisfy the LASP requirements. “If they get their way at TSA- that is. This is one of those things that could well become a precedentsetting court case.”

“As vulnerabilities and risks associated with air carriers and commercial operators have been reduced or mitigated- terrorists may view general aviation aircraft as more vulnerable and thus attractive targets. If hijacked and used as a missile- these aircraft would be capable of inflicting significant damage.” - LASP NPRM- TSA

TSA- in its justification of the LASP proposal- claimed that such an unprecedented expansion of its authority into the operation of privately owned- privately used machines would increase to about 10-000 the impacted aircraft. That’s from about 650 currently impacted by the TFSSP and PCSSP rules.

The number of effected airports was estimated at about 350; those same aviation groups put the number at well above 600- and possibly as high as 1-000. And this is just for the start… The TSA proposes to require the effected operators submit their approved security program operations to a biennial compliance audit. Both the compliance audit and the passenger screening requirements would be put in the hands of private businesses approved by the TSA itself rather than by the staff of the TSA.

So in addition to the cost of establishing the program- the cost of the criminal background checks- fingerprinting and developing the manuals outlining the aircraft owner’s program- the TSA proposes to force the effected operators and airports to pay for their security audits and for the required passenger screenings.

“This reads like a corporate welfare idea developed by businesses in the security sector-” said our regional airport manager. “Looked at with a cold eye- there’s nothing in the program that protects the public but a lot there to get GA operators to spend money they don’t have.”

This saga will very likely get even more interesting when the TSA holds one day of simultaneous public “Town Hall” meetings on the program early this month. The meetings- originally scheduled for December 3- were reset for January 6 in White Plains- New York; Atlanta- Georgia; Houston- Texas; and Van Nuys- California. These meetings are expected to be general aviation and the general public’s only face-to-face opportunity to tell TSA officials how they feel about the LASP proposal.

All the alphabet groups- all the lobbyists and World Aircraft Sales Magazine urge everyone who can to attend – and also urge all who attend to be respectful and polite as you tear apart this proposal. Everyone seems to have a deep understanding of the anger – but venting it at one of these meetings or in comments to the docket won’t advance the cause of keeping private aviation free of government intrusion.

Fears are widespread that TSA- in the expected show of regulator creep- will just keep expanding the impact until it reaches every aspect of private flying – all based on the same unsupported contention: That this proposal “enhances” the security of aviation and hence the public at large.

The following are the instructions from the TSA’s LASP proposal document on commenting:
Electronically: You may submit comments through the Federal eRulemaking portal at http://www.regulations.gov. Follow the online instructions for submitting comments.

Mail- In Person- or Fax: Address- handdeliver- or fax your written comments to;
Docket Management Facility-
U.S. Department of Transportation-
1200 New Jersey Avenue SE-
West Building Ground Floor-
Room W12-140-
Washington- DC 20590-0001
Fax: 202-493-2251

The Department of Transportation (DOT)- which maintains and processes TSA’s official regulatory dockets- will scan the submission and post it to FDMS.

eAPIS is the name the Customs and Border Patrol gave to its system for notifying officials of movement of private aircraft into the U.S. from outside national borders. The APIS program in effect was moved to an Internet portal (see below) after the CBP published its own proposal requiring the portal to be the primary communications venue for a slightly expanded set of information.

Late last year- CBP finalized the rule after taking into account comments from user groups and individuals concerning the impracticality of forcing all information transmission onto the Internet portal. Among the concerns expressed – and acknowledged by the final rule – were those on airports with either no- or inadequate Internet service- a reality at many usable airports just across the U.S. border- as well as in more remote locales.

Rather than force private operators to visit another airport with suitable Internet service to file and wait for clearance- CBP’s final eAPIS rule makes allowances for information to be transmitted via phone- fax or letter – and for operators to file both outbound and inbound information sets before leaving the country- and allowing a way to later modify the return information if needed. You can find all you need here:

Many an aviation business and airport in the Washington area has suffered a loss of traffic and dollars spent since the FAA imposed temporarily (it said) – an Air Defense Identification Zone (ADIZ) around the District of Columbia. The so-called Washington ADIZ is 30 nautical miles across- covers about 700 square miles- and several airports – 10 alone that depend on light-aircraft traffic. Those airports- according to AOPA- are losing upward of $43-million-ayear in business.

Reporting requirements for merely doing pattern work have effected training and the lack of even an altitude squawk from a Mode C transponder or changing to a VFR “1200” squawk prematurely can and usually does warrant a visit to the pilot by authorities.

Casual violations by non-threat aircraft ran so high that the FAA now requires pilots to pass an on-line course on the ADIZ before flying within 50 miles of the center.

After vainly battling to have the ADIZ rescinded or reduced- aviation groups were dismayed and disappointed to learn in early November that the FAA is moving forward to make the ADIZ and its restrictions permanent – a complete reversal from the agency’s early contention that the ADIZ was merely a temporary feature on the air navigation charts.

AOPA- for one- had proffered two proposals designed to maintain whatever useful security benefits might derive from the ADIZ while allowing an improvement in the health of effected airports and access by general aviation pilots. One was to make the ADIZ active by NOTAM on an as-needed basis; the other was to shrink the ADIZ to 20 nautical miles.

Neither idea appears to have been accepted- and the steps to make the ADIZ permanent were- at last check- in the hands of the Office of Management and Budget – generally the last step new rules must take before final implementation.

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