EAA Government Advocacy

National-security pressures rise to the top of issues affecting personal aviation

Numerous regulatory issues are influencing EAA members’ ability to enjoy personal flight. Information on some of these is available via the navigation buttons at left. Of these influential issues, perhaps none has more potential to affect general aviation in the near term than national-security initiatives.

As the Department of Homeland Security (DHS) and its divisions target general aviation with security proposals, directives, and programs, members of the EAA community continue to ask why and try to sort out the various security issues confronting them. Meanwhile, EAA government affairs representatives are calling the measures unnecessary and heavy-handed, and are combating them at every turn.

Whether the issue is TSA’s large-aircraft security proposals, the general aviation airport security directive, the “operation playbook” airport program, or the Bureau of Customs and Border Protection (CBP) restrictions, general aviation appears to be a chief focus of the Department of Homeland Security’s efforts.

Voice of opposition rises on The Hill

However, as comments from EAA and other groups participating in the March 10 House Aviation Subcommittee's roundtable discussion (TSA-GA Roundtable, TSA-2008-0021-6969) reinforced, any rationale supporting these proposals by DHS has been thin. “We continue to assert that the severity of these limitations and requirements vastly outweighs any threat that the operation of general aviation aircraft might pose,” said Doug Macnair, EAA vice president of government affairs. “The DHS and TSA have yet to provide a convincing answer to our argument.”

Macnair represented EAA at the roundtable, asserting that the proposed measures would be ineffective and would have harmful ramifications for general aviation, commerce, and Americans’ civil liberties.

TSA creates liaison position

During the roundtable, Macnair and representatives of AAAE, AOPA, GAMA, and NBAA also criticized the TSA for developing the proposal in virtual isolation, sharing its intentions only with airport officials and not with groups representing the users of airport facilities. On this point, TSA, which sent a representative to the roundtable discussion, evidently got the message. Two days after the roundtable, the agency announced the creation of a new TSA general aviation liaison position.

Separate issues reflect a common theme

Meanwhile EAA members face the challenge of differentiating several emerging issues that bear common characteristics and reflect a single, troublesome theme. “Each of these security initiatives would have a suffocating effect on personal aviation. Although we all support protecting our national security, we object to the pervasive mentality that favors unduly suppressing general aviation and upholding the unproven hope that everyone will be more secure as a result,” Macnair said.

Although other issues, such as the expansion and permanence of the Washington ADIZ and the use of temporary flight restrictions, contribute to this effect, four programs in particular combine to sound an alarm for the future of personal flight:

LASP

This major threat to the privilege of operating aircraft in the United States was the primary focus of the House Aviation Subcommittee’s roundtable and EAA’s recently submitted 57-page comment to the rulemaking docket. EAA and other groups remain concerned that the TSA’s proposed Large Aircraft Security Program, if enacted, would eventually apply to all general aviation aircraft, not just the initially targeted group of aircraft weighing 12,500 lbs. or greater.

Under the LASP, security measures akin to those required of airlines would apply to general aviation operations. These measures include crewmember criminal record checks, watch-list matching of passenger manifests and TSA authorization before each flight, biennial third-party audits of each aircraft operator, and new airport security measures. For the first time in American history, citizens would have to seek and receive government approval before each use of their personal vehicles to travel about the country.

The public-comment period for responses to the TSA’s Notice of Proposed Rulemaking (NPRM) on the LASP expired at the end of February. Hit by a tsunami of negative comments, the TSA has agreed to reach out to EAA and other stakeholder groups in the weeks ahead. Furthermore, the TSA has pledged that, before eventually declaring its final rulemaking position, it will first publish for public comment any revised version of the LASP that it envisions.

While EAA appreciates the willingness of the TSA to engage in further dialogue and publish any changes to the proposal for additional public comment, this is a far cry from the negotiated rulemaking process that EAA requested in a joint letter to the acting TSA administrator on February 4, 2009. EAA continues to press TSA to adopt this important administrative process.

Why should operators of lighter aircraft be concerned? Although the LASP pertains specifically to the operation of aircraft matching the TSA’s definition of “heavy,” comments from the TSA and its sibling Bureau of Customs and Border Protection (CBP) suggest a predisposition to spread the program to all general aviation operations.

In its NPRM, the TSA cited perceived security concerns that did not relate to aircraft weight. These comments focused more on who, and what, aircraft of any size might carry, and less on the potential damage that an aircraft of a given weight with a given amount of momentum might cause to buildings or other objects. Likewise, in enacting airline-type security measures for all general aviation aircraft crossing the nation’s borders, the CBP enumerated similar perceived security threats.

During the House Aviation Subcommittee roundtable, several Subcommittee members and stakeholders challenged the TSA for failing to produce evidence that general aviation presents any greater threat than boats, trains, trucks, or other modes of transportation. They asserted that the significant costs in terms of lost freedoms and trampled civil liberties resulting from the TSA proposals would outweigh any additional measure of security that those proposals might bring.

Although the LASP proposal entails agency rulemaking and not Congressional legislation, EAA nonetheless continues to encourage members to express their concerns to their representatives in both chambers (House and Senate) of Congress. Federal lawmakers — particularly those serving on committees related to homeland security, appropriations, judiciary, commerce, and transportation — may be able to help steer the administration, DHS, and TSA in a better direction.

Airport Security Directive

The LASP, discussed above, also proposes security requirements for airports where “large” aircraft operate. In the meantime, however, the TSA has for the past several months secretively handed down a security directive to airports where scheduled airline service and general aviation operations coexist.

The directive requires an airport with one or more scheduled airline flights to institute background checks and I.D. badges for all aircraft operators and related personnel based there, including the general aviation operators. The requirement applies even if the commercial and general aviation operations are already well-segregated. Anyone who does not have the airport-issued I.D. must have an authorized airport escort.

The directive applies a one-size-fits-all philosophy to airport security. However, it leaves the specifics of the security programs up to each airport. Consequently, aircraft operators would potentially have to keep track of the separate security programs for each airport they use, and would reportedly have to remain in their aircraft when visiting airports at which they are not based or for which they do not have a badge until they can be escorted from their aircraft. Clearly, this is not a workable proposal at the vast majority of airports where staff members are not present 24 hours per day, if at all.

The TSA had almost fully implemented this program before enough information about it trickled out to draw protests from individual aircraft operators and aviation associations such as EAA. Consequently, the TSA agreed to bump the implementation deadline back to June 1, to allow time for further discussion.

EAA is particularly concerned that the TSA is attempting to impose these measures as a security directive, which is equivalent to internal policy. Consequently, there is no requirement for public notice or input, and no rulemaking process. EAA and the other aviation groups are working with TSA management and Congressional allies to challenge this administrative approach in general and Security Directive 1542-04-08F in particular.

Operation Playbook

The TSA first introduced this proposed mandatory general aviation airport security program late last year. It applied to busier general aviation airports, particularly those that have jet- and heavy-aircraft operations. With this program, the TSA attempted to institute at large FBOs procedures for passenger screening, baggage screening, and law enforcement activity similar to those found at commercial airport terminals.

After a pilot program at a handful of airports resulted in vehement protest from operators and general aviation stakeholder groups, the TSA pulled the program back for reevaluation.

Today, however, the TSA is resurrecting Operation Playbook as a “voluntary program.” Details on its specific security measures are sketchy, as TSA characteristically has withheld the information, sharing the actual procedures only with airport operators. Some TSA documents and information coming out of the airport community suggest that the program might entail TSA checkpoints at FBOs, security screenings, prohibited-items searches and restrictions, and other requirements similar to those applying to the airlines.

EAA and other groups representing users of the air-transportation system are concerned that some airport officials may feel pressured to accept this “voluntary” program. Of particular concern is the fact that, once an airport adopts a TSA security program, voluntarily or otherwise, it is obligated to adhere to all future security directives issued by the TSA, such as 1542-04-08F described above. This would leave general aviation operators entirely at the whim and mercy of the TSA and whatever policies it unilaterally decided to hand down in the future.

Customs and Border Protection

Acting on only a handful of the thousands of concerns put forth in late 2007 by EAA and other public commenters, the DHS announced The Advance Information on Private Aircraft Arriving and Departing the United States final rule on Monday, November 17, 2008, with an effective date of December 18, 2008, and a compliance date of May 18, 2009.

This set of security regulations coming from DHS’s Bureau of Customs and Border Protection (CBP) elevates requirements for private aircraft entering or departing the United States so as to resemble those applying to commercial airliners. The rule requires private aircraft operators or their designees to electronically transmit advance notice and passenger/crew manifest information through CBP’s Electronic Advance Passenger Information System, or eAPIS, no later than 60 minutes before departing a U.S. airport for a foreign location or departing a foreign airport for a U.S. destination. Flights would be authorized to proceed only after CBP vetting of passenger and crew manifests through the terrorist watch list.

Before issuing this rule, CBP did revise its position in response to a few of EAA’s comments. EAA urged CBP to permit departure and arrival manifests to be submitted at the same time and with no limit on how far in advance they may be submitted. This essential change at least allows some flexibility for operations to remote areas.

Also at the urging of EAA and others, certain elements of a previously submitted arrival and/or departure manifest (i.e., flight cancellation, expected time of arrival, and changes in arrival location) may be amended via telephone, radio, or by other existing processes and procedures (such as flight service) if access to the Internet is unavailable.

Failure to comply with the new regulations could result in a fine of $5,000 for a first offense, and a $10,000 fine and/or jail time for subsequent violations.

The CBP’s commentary in the rule reveals an overriding DHS perspective on general aviation that could lead to tighter restrictions on all classes and categories of general aviation aircraft. The rule states, “Both large and small aircraft present a threat ….”

These comments raise questions regarding whether the LASP (see above) proposed by CBP’s sibling TSA would really be held to only large aircraft over the long term.

The battle continues

Security initiatives threaten personal flight on several fronts. The challenge for the EAA community is to understand the separate issues involved and how they interrelate, to be aware of where battles may still be won, and to combine our voices in those theaters. EAA will continue to work tirelessly on behalf of all of aviation in an effort to preserve the freedom of flight that we all treasure.