LASP UPDATE

Happy 2011! Over the next several months we can expect a huge amount of retrospective perspectives - comparisons of our relative safety and security as we approach the 10-year anniversary of the worst terrorist attack on American soil.

Due in some measure to an unrelenting atmosphere that promotes fear - partly as a result of repeated failed attacks along with the continuing debate about the proper role of security measures within American life - the phrase “Nine-one-one” continues to powerfully influence American views of safety and security from terror. Unfortunately that’s not always in proportion to the actual risk.

One element of continued flogging by merchants of fear and paranoia is the different level of security applied to General Aviation. Expect considerable examination and debate on the security parameters within which General Aviation operates.

Any such communications- however- must include an equally weighty consideration of where General Aviation is not – and specifically where Business Aviation isn't. That’s a history replete with:

• The dire predictions of General Aviation’s threats;
• A miniscule set of remotely relevant incidents;
• Episodes of official over-reaching- matched by vociferous reactions;
• Progress on viable preventive steps; and
• A brief threat of airline-level- air-carrierairport style security protocols for all of General Aviation involving aircraft weighing above 12-500 pounds. The failure of that last point may stand as the penultimate example of a community pulling together – and succeeding.

If the Transportation Security Administration (TSA) holds true to its word- the agency should publish its latest proposal for formal security protocols for private aircraft. Further- if background information holds true- that proposal will bear little resemblance to the ill-fated Large Aircraft Security Program proposal that TSA sprung on a stunned General Aviation community in late-2008 (and ultimately abandoned in mid-2009).

When finally withdrawn amid a wave of opposition- those opponents celebrated the equally stunning refutation of TSA’s perceived over-reach.

Of course- until the new LASP NPRM hits The Federal Register its exact details can’t be reliably known- but from interviews with members of the Business Aviation segment - as well as the larger General Aviation community - we believe we can discuss what insiders expect won’t be part of the new proposal.

First- though- let’s take a look at how we got to where things now stand – and where we’re not.

PERSPECTIVE:
THE WAY IT WAS…
Until the morning of Sept. 11- 2001- responsibility for air-carrier security belonged to the carriers themselves. Airlines worked with airports to meet federal security rules- and employed private companies to staff the checkpoints. The Federal Aviation Administration was responsible for approving arrangements and policing the screeners’ effectiveness.

Metal detectors- long in use- screened people; passengers faced (non-intrusive) patdowns only if their metal detector beeped on them; X-ray machines screened carry-on baggage- which inspectors opened and examined only if the X-ray machine operator saw something suspicious. Shoes stayed on; notebook computers stayed stowed; the prohibited items list did not include nail clippers- penknives or fluids in excess of 3.4 ounces.

At the same time General Aviation remained free to fly wherever and whenever- virtually unconstrained by any federal security protocols – only by the various rules of FAA regulations over Part 91 private flights and Part 135 charter ops.

No requirement existed for charter pilots to submit to fingerprinting or criminal background checks- and anyone from anywhere on the planet could avail themselves of flight training in the U.S. – the world’s leader – with nothing more than a legal clearance to be in the country…a Visa at most.

Then 19 Middle East individuals leveraged their legal entry into the U.S. as part of a vast conspiracy; several partook of limited flight training. They teamed on a savage attack- hijacking four airliners- and what followed formed a tragic part of America’s history.

As a result- aviation was grounded for two days- and when traffic resumed- American aviation flew into a very different future.

NOV. 19- 2001:
A DAY OF DIFFERENT INFAMY
Through the wave of shock and horror at the wantonness of the attacks- critics mounted attacks of their own against the airline security system- claiming the attackers defeated the system- and thus the system was to blame for the success of the plot.

Later evidence indicated that nothing the attackers used was banned; many airline veterans noted the presence of box cutters in most airliner galleys – tools used to open sealed boxes of food and snacks.

The attackers needed only know of those box cutters- but an allowed knife would also work to their ends. Protocols called for submission to hijackers who- in the past- sought outcomes such as prisoner releases- ransoms or to simply blow up the plane they controlled. And intelligence reports of planning for the use of airplanes as weapons went unheeded.

The administration of President George W. Bush elevated the status of people previously considered thugs- criminals or- at best- guerillas- by declaring them the enemy in a newly christened “war on terror.”

By late October Congress- acting in fullblown crisis mode- blew past civil-liberties and domestic-security concerns and passed the USA Patriot Act; and by mid-November the business of providing security screening for airlines all but vanished with the November 19th creation of the Transportation Security Administration.

With that agency’s creation- private aviation for the first time faced regulatory constraints- driven by the worst-case paranoia of fearful critics insistent that every private aircraft presents a threat equal to the airliners flown as weapons on September 11th.

As of November 19th- 2001- the fight was on to maintain- and sustain operational freedom for private aviation.

TSA - THE EARLY YEARS
The early years of the TSA were filled with ideas on how to “control” who used the airspace- with designs on knowing who flew while tracking every aircraft flight in the nation.

A proposal to require flights to always use a discrete transponder code died in the face of community opposition only because proponents learned of a technological barrier: modern transponders can generate only 4-096 different squawk codes – a number insufficient to mandate a discrete code for every flight.

More successful: requiring fingerprinting and background checks for flight crew of aircraft engaged in commercial flying- scheduled or on-demand over 12-500 pounds; carriers must have their own programs and there are regulations effecting airport access at fields with commercial service. Other schemes to allow TSA control or authority over private operations met with challenges- including spot-erected access barriers at airports.

More welcome- the best-practices guidelines for General Aviation airports- and the AOPA Airport Watch- operated by the TSA and promoted by AOPA met with acceptance and success.

More inhibiting were airspace- and airport- access limitations. First- private aircraft lost access to a huge circle of real estate surrounding the Washington National Airport and access to the airport itself.

Special privilege and training requirements were developed for access to the airspace out 30-miles in radius; tighter constraints and background checks were developed for access to three airports within the Washington FRZ (Flight Restricted Zone)- the so-called DC Three Airports – College Park- Potomac Airfield and Washington Executive/Hyde Field.

Private access to DCA returned more than five years after the attack – but only under onerously restrictive conditions- and at much higher costs than comparable airports. Beyond the Beltway the now-perennial Temporary Flight Restriction zones (TFRs) exist in large numbers- many ostensibly created for VIP security.

Yet despite the progress and lack of serious incidents out of millions of private flights- many in TSA still felt that private aviation must succumb to highly restrictive- and very disruptive security protocols. The day after promising an audience at the NBAA Convention that the planned security proposals took into account all their concerns- the TSA unveiled the details of the Large Aircraft Security Program (LASP).

BATTLE OF THE LASP
“We were completely blindsided by LASP-” said Douglas Carr- NBAA’s vice president of safety- security and regulation. “Thankfully- the community really came out in force with more than 7-000 comments – overwhelmingly negative comments – that convinced TSA to drop it and start over.

“The reason we have an opportunity to deal with a second proposal is because of the large number of people who weighed in.” And the devil in that proposal was all over the details. First- the TSA set 12-500 pounds as the break-point for “large” aircraft – embracing a defining weight between FAA regulations for aircraft certification; up to 12-500 pounds the aircraft falls under FAR 23; above- FAR 25 applies.

The weight has nothing to do with use or type of operations and many a private/ individual owner flies aircraft with a gross weight above 12-500 pounds. But weight aside- the main source of objections and anger was requirements TSA sought to create for all private flights of aircraft above that weight:

• Finger printing and background checks for pilots through third party firms;
• Vetting passengers against the national no-fly list;
• Enforcement of the same banned-items list in effect for airlines;
• A requirement to carry an armed air marshal on aircraft at higher weight ranges at TSA’s demand – but at the aircraft owner’s expense;
• Security audits – at the operators’ expense…and more.

THE ‘TRUSTED PILOTS’ CONCEPT
If you can’t trust the pilot- who can you trust? That question seemingly underpins TSA’s new approach to creating a program to help secure private aircraft flights.

According to a variety of sources briefed on only parts of the proposal- few of the most-onerous elements of the original LASP proposal survived.

Carr observed- “Many of the elements we found most objectionable – the weight break- third-party audits- watch-list providers- watch lists- prohibited items – all of those things that just didn’t make sense for business aviation- are gone.”

Also gone – news accounts to the contrary – is a focus on elevating the level of privateairport security and a focus on airport-based measures in the new proposal. Instead- the TSA plans (according to sources) a “kinder- gentler” proposal.

The new LASP builds on the concept of vetting pilots of certain classes of business aircraft – aircraft in the upper five-figure weight ranges and higher. These TSA ‘Trusted Pilots’ would- in turn- hold the responsibility for assuring that passengers on their aircraft pose no security risks.

“We expect pilots to have to go through something like pilots under the 12-500 security protocols-” said a charter operator with Large Cabin and Ultra-Long-Range jets.

He and others also expect the proposal will address security of foreign nationals flying the same class of aircraft within the U.S. after clearing existing entry requirements. “We need to know how TSA plans to regulate security aboard private aircraft of foreign registry when they are traveling inside the US.”

When foreign-registered planes fly in or out of the country the passengers and pilots have to comply with US Customs & Border Protection's electronic Advanced Passenger Information Service (eAPIS) program. But eAPIS doesn’t apply to aircraft flying within our borders- and currently foreign-registered aircraft receive the same treatment as domestically registered.

Noted Carr- “We’re comfortable from what we’re hearing that we’re not looking at another proposal that shows the same lack of understanding that the original LASP exhibited.” He added that the ‘trusted pilot’ idea really puts the responsibility where it can work – and preserves operational flexibility.

“The crux of the proposal is making the pilots the responsible party-” he said. “If they can trust pilots to work behind an armored door to fly 757s with hundreds on board- maybe we can leverage that trust for Business Aviation pilots and mitigate some of the worst of the first proposal.

“How do we identify these pilots? What qualities do they need to have to get the TSA to allow them that responsibility? That will have to be answered by the NPRM. Now what we’d like to see is some operational benefits for aircraft flown by those ‘Trusted Pilots’ that will make the vetting they face worth more overall.”

THE PATH AHEAD:
PATIENCE COUNSELED
“We believe TSA heard us on – and we’ll get a chance to comment on - the next proposal… once we finally see it-” noted Carr.

When we’ll actually see the new NPRM is as hot a question as its expected content:
We’ve already seen the schedule slide. A year ago sources predicted a new proposal would emerge by Oshkosh in July 2010; in February of last year- Fall was the target; as Winter approached- “early 2011” became the quoted target. Now we’re back to “the first half of 2011- or by Oshkosh at the latest - July again.

Currently- sources tell World Aircraft Sales Magazine- the TSA’s proposal was - as of early December - going through its final internal TSA review before undergoing vetting by the Department of Homeland Security. From there- it must go to the White House and clear a review by the White House Office of Management and Budget.

“I wouldn’t predict when it might get published in The Federal Register”- Carr added. (Publishing in The Federal Register not only will unveil the details- but also set in motion the process required to move a proposal to a final rule- steps spelled out years ago in The Administrative Procedures Act).

Publication begins a public-comment period that the NPRM defines; that period is not necessarily set in stone. The first LASP NPRM called for a comment period half as long as what was eventually granted.

Similarly- the original LASP allowed for no public meetings with TSA officials. As Carr noted- “They decided to hold the meetings after strong urgings from us and others…and that’s where they (TSA) really learned how badly their proposal was being received.” Few anticipate a second proposal so objectionable that opponents seek the public-meeting route.

Comments and meetings - once those options have ended the TSA is required to review and respond to the comments- and to take them into account when revising the proposal into a final rule.

Once the TSA completes the steps- its proposed final rule faces vetting similar to that now facing the NPRM. Only after that second vetting as a Final Rule can the Final Rule be published in The Federal Register with an effective date.

“In the end- it will be 2012 or later before we finally see a final rule go into effect-” said our charter operator. In the meantime- private aviation remains free to fly wherever and whenever – at least- beyond those few defined areas where some restrictions always apply.