Special Report: Business Aviation Security

 - October 8, 2007, 9:20 AM

A few days after last September 11 it became apparent that the FAA and even the Department of Transportation did not have much say in aviation security matters. Both FAA Administrator Jane Garvey and Transportation Secretary Norman Mineta admitted as much in congressional hearings one week later.

Initially, much of the decision-making was attributed to the National Security Council (NSC) and most rules and restrictions emanated from the White House. But general aviation was undoubtedly fortunate that a man with Mineta’s aviation experience was sitting in President Bush’s Cabinet meetings.

Although limited commercial aviation was allowed back into the National Airspace System (NAS) on September 12, and Part 135 operations were given permission to relaunch the next day, it was not until the afternoon of September 14 that any general aviation aircraft was given the green light to fly–and that was limited to Part 91 flights operating under IFR.

It was during those early days that NBAA members found themselves lumped in with all other forms of GA. Further, the association learned that it had precious few connections to the presidential advisors who were calling the shots. Both Mineta and Garvey verified that the flight restrictions were being imposed by the White House itself in the name of national security and by advisors who apparently were unfamiliar with the nature of GA operations, and particularly with business aviation.

When Mineta announced on September 14 that IFR operations were approved for enhanced Class B (ECB) airspace around 27 of 30 metropolitan areas, NBAA was still unhappy that it did not have access to Teterboro (TEB), Newark (EWR) and Dulles (IAD), not to mention Ronald Reagan Washington National Airport (DCA).

Eventually, the White House advisors allowed Part 91 IFR access to IAD; TEB; Boston-area airports at Beverly, Bedford and Norwood; and, finally, EWR. Meanwhile, NBAA continued to ally itself with the rest of GA to get unrestricted VFR flight reopened throughout the NAS.

The fact that President Bush’s advisors still could not grasp the concept of corporate aviation security was demonstrated again on October 30, when business aviation was again lumped in with all other GA flight operations in a temporary flight restriction (TFR) notam that banned all flying except for commercial airlines within a 10-nm radius of about 86 “sensitive nuclear sites.”

The ban expired November 6, but in the meantime it forced some operators to relocate their aircraft from secure hangar facilities to other nearby airports with little or no security. “It was an example of how the decision made on the nuclear TFRs was relatively naive when it came to characteristics of business aviation,” said NBAA president Jack Olcott. “Why, for example, should an aircraft that is in a secure location–in a hangar that is guarded–be moved out of that secure location and parked on the ramp at a nearby airport that was just outside the TFR?”

NBAA argued that it made little sense that a community that has been practicing security for decades–albeit industrial and executive security–should be grounded along with the rest of general aviation every time a new TFR area was created.

The problem all the aviation associations were facing was highlighted when the FAA issued a notam in December that removed the ECB airspace from 30 major metropolitan areas, reduced the size of the TFRs around New York City and Washington and added a small TFR in Boston. That meant VFR operations could resume–except for the TFR airspace–in those three metro areas, and specialty operations could resume in Class B airspace everywhere.

Building New Bridges
AOPA in essence thanked the FAA, DOT, Defense Department and  Office of Homeland Security for the decision. Yet exactly who was making the final decisions on aviation security matters still was unclear. It was generally accepted that a major driver was the Secret Service, especially concerning airspace matters in the Washington area.

In the weeks following September 11, the GA community found it needed to build connections to the national security community and the new homeland security office. “We had never considered that our advocacy message needed to go to the people in the FBI, CIA or National Security Council,” Olcott said then. “Clearly, when a crisis occurs it’s only the assets you have in place that will be useful. We had no advocacy bridges into the FBI, Secret Service or CIA.” The GA community began looking for those bridges.

Meanwhile, a new term was entering the aviation lexicon–the Transportation Security Administration (TSA). It was a child of the Aviation and Transportation and Security Act that had been signed by President Bush on November 19, and it has made profound changes in the way transportation security will be performed and managed in the future.

Until the TSA was actually up and running, however, NBAA and some other aviation organizations attempted to use political clout with the Bush Administration and Congress to plead its case that it be treated the same as the commercial airlines. NBAA, in particular, was, and still is, keen to get back into DCA, where about 100 of its member companies accounted for most of the 60,000 GA flights there annually.

Behind the scenes, National Air Transportation Association (NATA) president Jim Coyne, a former congressman who worked in the Reagan White House, met with top-level Bush Administration officials in November to pitch an interim proposal. It would have required a Part 91 or Part 135 aircraft to be pre-screened at another airport, where the passengers and crew could be put through security procedures before being cleared to fly into DCA.

With the help of the White House, Coyne had hoped to secure interim access to DCA before the TSA began issuing its own rules. When a consensus could not be reached on procedures, the effort died. Coyne has since been convinced that getting GA back to DCA is problematic.

Access to the nation’s capital became as much symbolic as necessary. So NBAA proposed what it called a security letter of authorization (SLOA), which would state that an operator has demonstrated to its FSDO that it followed security practices of the business aviation community, such as those contained within the NBAA management guide.

The typical NBAA member company already has a relationship with a FSDO and has letters of authorization (LOA) for RVSM, minimum equipment lists or for other special equipment. So there is already an established relationship, and consequently the company is a known entity and the characteristics of that company are known, NBAA submitted.

Under NBAA’s plan, the SLOA system would be available to any Part 91 operator who applies for and complies with the provisions. Part 135 aircraft operators who apply for an SLOA are in compliance with similar operations specifications that contain similar provisions and would be equally authorized.

The proposal’s stated purpose was to allow qualified general aviation operations within the NAS during periods of FAA-mandated increased security, and at specified locations with the FAA-mandated increased security. Security letters of authorization would facilitate access to the NAS for qualified GA operators equivalent to commercial operations.

The DOT has said that in the future, short of grounding all GA aircraft again, it could increase general aviation security through airspace and operational restrictions; intercept operations; scrutiny of pilots, crews, passengers and aircraft on the ground; and communication and education (such as expanded use of notams and partnering with industry associations). Also in its arsenal is Special FAR 91 (SFAR 91), which was issued in October and gives the DOT wide latitude in issuing additional airport security restrictions.

NBAA and other GA organizations recognized that the possibility of new airspace restrictions threatens general aviation access to the NAS. A security working group within NBAA developed the SLOA concept because the FAA is familiar with the letter of authorization (LOA) process of application review, issuance and oversight. NBAA called it the most readily acceptable and efficient security mechanism for the FAA to pursue.

 In the case of the nuclear power station restrictions, the notam did not apply to airlines flying under Part 121 or Part 135. NBAA hoped that under the SLOA concept, it would have said “nor does it apply to Part 91 operators with an SLOA.”

An Uphill Battle
NBAA first pitched the SLOA idea to the FAA in December in a letter to Administrator Jane Garvey. In January, at the first in a series of meetings with business aviation operators and industry representatives, Rear Adm. Paul Busick (Ret.), FAA associate administrator for civil aviation security, called it a “pretty good proposal.”

But he expressed doubt that the NBAA’s ambitious timetable of having an operational program in place by March 1 could be met, in part because the FAA simply did not have the manpower to audit each applicant’s security compliance. He added that plan must be approved by the Secret Service, the Office of Homeland Security and the TSA.

As NBAA and the FAA tweaked the SLOA technical model, Olcott warned that without an incentive from the highest levels of government to reopen DCA to general aviation, “we will have a very difficult time.” Those levels of government included President Bush, Vice President Dick Cheney, White House Chief of Staff Andrew Card [a former Transportation Secretary under Bush’s father], National Security Advisor Condoleezza Rice, Mineta and Commerce Secretary Donald Evans. NBAA also urged members to write to their members of Congress.

In mid-February the TSA issued a rulemaking that transferred to the TSA all of the FAA’s rules governing civil aviation security, including Parts 91 and 135. Now there was little doubt who was supposedly in charge, but Coyne said the TSA bureaucracy is “disappointing a lot of people.”

The Aviation and Transportation Security Act moved the responsibility for airport security checkpoints from the airlines to the TSA, and gave the new agency sweeping security and enforcement powers. Garvey said the FAA would continue to oversee the security of the ATC system, aircraft and flight crews.

There is also significant authority within the TSA for DOT Secretary Mineta to issue a security directive that would implement additional airport security restrictions, or use SFAR 91, which requires any operation in the sterile area of a Part 107 airport to undergo a search of the aircraft and a screening of passengers, crewmembers and other persons and their accessible property. A second part gives the FAA the authority to require screening procedures for operators of aircraft with an mtow greater than 12,500 lb.

‘Twelve-five’ Rule Challenged
One of the rules issued by the TSA in February quickly became known as the “twelve-five” security program. It requires that certain aircraft operators using aircraft with an mtow of 12,500 lb or more carry out security measures. This rule requires certain aircraft operators, including on demand Part 135 operators, to conduct criminal history checks on the flight crew, fingerprinting and restrict access to the flight deck.

The TSA said the measures are necessary to comply with congressional mandates and to enhance security in air transportation. The rule becomes effective June 24, but the TSA accepted comments until April 23. NATA now believes the effective date will be extended 30 days, but even that delay would be of little help to iron out problems the association sees with the rule.

In its comments, NATA raised the point that the TSA rule is fundamentally built upon the airline security model and does not work when applied to the air-taxi industry, where the aircraft are much smaller and the operations much less complex. “To maintain a viable industry, any security requirements must recognize the uniqueness of this industry, and the TSA must develop standards that are specific to the wide-ranging aircraft, missions and landing facilities used by on-demand businesses,” said Jeb Burnside, NATA’s v-p for government and industry affairs.

The “twelve-five” rule is part of a larger regulation focusing on charter carriers using large aircraft, and NATA questioned whether the rule could be implemented for the Part 135 on-demand air-taxi operators by the June 24 deadline. It said that the “boilerplate” security program promised by the TSA has yet to be released, which is causing frustration for affected operators who want to prepare for the new requirements.

In its comments sent to the TSA in late April, NATA pointed out that operators had only two months to develop, submit, gain TSA approval and implement security programs. “With thousands of affected businesses, NATA remains wary of TSA’s ability [to meet] the June deadline,” Burnside said.

NBAA said many of its members will be affected by the rule, and it asked for a delay in the implementation and compliance dates. “Adequate time will be needed to consider that all processes/programs are available for additional comment and all ambiguities are resolved,” NBAA wrote in a comment letter.

NATA challenged the security requirements, which it said may jeopardize safety and directly conflict with existing safety regulations. One such area, it said, is the flight-deck door. Although the actual regulatory language is vague, the TSA rule implies that additional security measures will be necessary in aircraft already equipped with a door.

Closed-door Policy?
NATA’s comments explained that, unlike airliners, Part 135 aircraft do not have separate emergency egress from the flight deck. Should the TSA require the door to be closed and locked, the crew could be trapped in the flight deck and unable to evacuate if necessary.

A closed door would also prohibit any communication between the pilots and passengers, jeopardizing passenger safety in emergencies. The association explained that closing and locking the door would be in violation of the FAA requirements that any door be open during takeoff and landing and that the crew provide safety briefings to passengers.

NBAA told the TSA that the section that refers to the restriction of flight-deck access for aircraft that have a door should be clarified, because many aircraft operated under Part 135 have doors, curtains or partitions that are designed for privacy, not as a means to restrict flight-deck access. “Is the intention to prohibit flight-deck access?” NATA asked, pointing out that in many single-pilot airplanes a passenger can occupy the other seat on the flight deck.

NATA expressed concern that the rule assumes that numerous trained security personnel are available 24 hr a day at the thousands of airports the industry serves, when in reality many of the airports served by the on-demand industry are not attended around the clock.

NBAA said designation of a ground security coordinator (GSC) will be costly and logistically difficult, given the nature of the charter business, because Part 135 operators serve thousands of airports, sometimes on little advance notice. It recommended that the PIC be allowed to be the designated GSC at locations away from the certificate holder’s base of operations.

In addition, some clarification is necessary on the requirement to have a law enforcement officer (LEO) available to respond to incidents, NBAA continued, and it asked whether that section requires the full-time presence of a LEO, or if a local LEO be called in should there be an incident. If the former is the case, the association expressed serious concerns about the availability of such a LEO and the financial burden to the operator.

Further, although the rule requires criminal background checks of affected personnel to be conducted by December 6, the TSA has not made clear the procedures the thousands of affected operators and their employees will use to meet this mandate.
Like NATA, NBAA questioned the compliance date for fingerprint and criminal history records checks (CHRC) since the authority to conduct these checks has not been granted by the FBI and the processing agency has not been identified. Additionally, it said the cost for the required CHRCs should be borne by the federal government since the proposed procedures are designed to protect national interests.

“The TSA rule was developed by this new agency in an incredibly short period of time,” said NATA’s Burnside. “Consequently, no one should be surprised that these challenges exist. However, Congress and the TSA must realize that ‘airline-style security,’ with all of its various economic, quality-control and logistic problems, cannot be applied to on-demand air-taxi operators.”

NBAA agreed with NATA that the program requirements are not described in sufficient detail, and it called for sample programs or templates for use by operators to effect compliance. It also asked the TSA about conflicts between TSA security regulations and FARs, as to which takes precedence.

Still Waiting
Early last month NBAA was still waiting to hear about the status of its SLOA proposal. Bob Blouin, NBAA senior v-p of operations, said he was told by the TSA that the next draft of its plan to reopen DCA to some general aviation aircraft was expected at press time. “We’ve asked to see it in advance so that it’s not dead on arrival when it gets out to the public,” he said.

Blouin speculated that whatever the TSA staff has come up with still needs to be cleared by undersecretary of Transportation for Security John Magaw, who heads the TSA, and perhaps the Secret Service and the Office of Homeland Security.

“They imposed the ban under an emergency notam for DCA,” he recalled. “There was no rulemaking, and the industry associations– NBAA, NATA and GAMA–did not expect to have to go through rulemaking to get the relief from the emergency notam. We expect another emergency order for the relief if and when we get the right feedback from these people.”

Blouin noted that each time the airlines were allowed to return to or add flights to Ronald Reagan Washington National Airport, they did not have to go through rulemaking. The FAA simply relaxed the emergency notams and put procedures in place.

NBAA has been holding monthly updates on access to DCA at the Signature Flight Support facility there. At the April session a TSA official said the agency was hoping to publish the required security procedures sometime in May. Lee Longmire, TSA director of civil aviation security, said the Special Federal Aviation Regulation (SFAR) would allow vetted GA entities to begin operating to and from DCA, but first a stop would have to be made at a designated gateway airport for TSA-approved security clearance.

He said the SFAR “most likely” would include a TSA-approved security program–of which NBAA’s proposed SLOA could be a part– along with fingerprinting and criminal record checks for flight crews and support personnel, FAA review of flying records, as well as TSA-operated or TSA-approved security screening of passengers and carry-on luggage. The latter screening would be done at one of about 20 designated airports–initially those with the most traffic to DCA.

Longmire said the SFAR would need to be coordinated through the FAA and the Secret Service, although all of the federal government agencies involved now have agreed that the final decision on GA access to DCA will rest with Magaw, who is a former head of the Secret Service.

Magaw met with NBAA’s board of directors in early March to discuss national security concerns as they relate to business aviation. He also met with NATA staff about a month ago.

Back to ‘Normal’
Other than the exception at DCA, flight operations have returned to near pre-September 11 normalcy for most Part 91 and Part 135 operators. Restrictions and access controls imposed during the Olympics in Salt Lake City and the Super Bowl in New Orleans treated both classes of these operators equally, according to NBAA, and there were no intentional security breaches at either event.

The only remaining disparities, it said, are the ban on Part 91 helicopters at the downtown New York City heliports (those with a waiver can use them), and the requirement that international Part 91 flights travel through one of eight portal countries unless other countries are authorized via a waiver.

The general aviation telephonic entry (GATE) program, which was closed by the U.S. Customs Office on September 14, remains shut down. GATE allowed approved pilots and passengers flying from Canada to the U.S. to give U.S. Customs advance notice by calling a toll-free number and obtaining a telephonic entry number.

Previously, authorized aircraft could fly directly to the approved U.S. airport of entry (frequently the aircraft’s home field) and avoid long delays for customs inspections. In most cases no inspection was required. Since September 14, all flights entering the U.S. from the Canadian border must stop at a designated border inspection port of entry, although that is not expected to be permanent.

Southern border overflight exemptions, which allow users to bypass the nearest port of entry and proceed to another airport to clear customs, have not been affected.
Meanwhile, Canada resumed its CanPass general aviation border-crossing program in April at 176 airports in Canada. The program, which allows prescreened travelers to clear customs quickly, was suspended immediately after September 11. The restored program is available only for flights from the U.S.

D.C. Heliport
While GA aircraft are still fighting for the right to use DCA, the FAA is allowing more and more operations into Washington’s only public heliport. Don Scimonelli, general manager of Air Pegasus at the D.C.-South Capitol Street Heliport, said corporate operators with government business are being given waivers to land there.

A law-enforcement officer is required to be on board at all times, and the operator must advise the heliport in advance on expected arrival and departure times. Scimonelli said three new waivers have been granted, and about a half dozen are awaiting approval. He said that on average one new waiver a week has been issued.

In addition to strict reservations, operators also have to provide a flight manifest and the name of the ground-transportation company they will use. He said the forms are kept on file at the heliport so that “in case we are ever contacted, we have a record.”

Even following September 11, when the TFR was cast around a 25-nm radius of the DCA VOR, the D.C. heliport was used by the Metropolitan Washington Police Department and the U.S. Park Police. Scimonelli said that were it not for the city police air wing, which operates a Eurocopter AS 350B3, “I would be shut down for sure. They came to my rescue big time, and I’m forever indebted to those guys.”

Although everybody acknowledges and accepts the need for heightened security, there are some–including members of Congress–who are becoming restive about some of TSA’s actions. Coyne said he “laid out some of our frustrations” when he met with Magaw and other government officials.

He tried to explain “how our industry was being affected by this current bureaucratic confusion, especially the kind confusion among the FAA and TSA and DOT.” And Coyne “bristled” when one of Magaw’s top staffers said the TSA did not want to do as poor of a job handling security as the FAA did before and after the attacks.

“I haven’t seen any real evidence that the FAA is at fault,” Coyne countered. “All of the reporting I’ve seen places the real fault with the intelligence and immigration side of the equation.”

He described the TSA as having “a real different type of culture” and he predicted it will be “months, if not years,” before the FAA is put back into a position where it has the authority and the responsibility that it needs to do its job.

Meanwhile, the TSA continues to grow both in size and power. It already has asked Congress for a supplemental appropriation of more than $4 billion, and there have been predictions that the agency could end up hiring at least 72,000 employees, more than double the estimates of last fall when the agency was being created.
One prominent congressman who was instrumental in creating the Aviation and Transportation Security Act, which in turn created the TSA, said he planned to warn the TSA not to stifle commerce in the name of security.

According to Blouin, the U.S. aviation training industry already has lost 20 percent of its business because of the ban against accepting foreign students, which is proving a boon to Canadian and European flight schools.