Comments submitted to the Transportation Security Administration about the proposal to enact rules mandating new security processes for aircraft with a maximum takeoff weight of more than 12,500 pounds are universally against the regulations. Some comments reflect obvious frustration about the public’s chance of preventing this rule from being enacted, summarizing their feelings with broad statements such as “this [expletive deleted] sucks.” Others offer more focused critiques of the rule, ranging from questions about specific aspects to wondering whether the proposed rules are constitutional.
The rules propose the creation of a large aircraft security program (LASP), which would require operators of any aircraft with an mtow greater than 12,500 pounds to create a security program subject to biennial third-party audits; to have flight crew undergo FBI criminal history and fingerprint checks; to have all passengers, including the owner, checked against the TSA’s watch lists; and to hire and train an in-house security coordinator.
The question of whether the TSA has the power to force the owner of a private conveyance–a business jet–to comply with these proposed regulations may be moot. The agency is simply following a mandate from its boss, the U.S. Congress, which in the panic following the 9/11 attacks passed the Aviation Transportation and Security Act. The act requires the newly formed TSA to “assess threats to transportation” and “develop policies, strategies and plans for dealing with threats to transportation security.” No one can argue that the LASP doesn’t do just that.
The volume of comments has grown rapidly since the TSA formally placed the LASP proposal on the Federal Register. As of mid-November, the total number of comments exceeded 400.
While the comments give insight into what aviation industry participants think about the LASP, it is interesting that of the comments reviewed for this article, little mention was made of the proposed biennial audit requirement. What is unusual about this part of the LASP is that it appears to be a new feature of a government regulation applicable to the aviation industry, the requirement that a third party audit the aircraft operator’s security program.
Audits Create a New Burden for Operators
These audits would be paid for by the aircraft operator, and they would take about two days, according to experts AIN consulted. The cost would likely be in the thousands of dollars per year, thus adding yet more expenses to the operation of these aircraft. No FAA operational regulations call for a third-party audit similar to that spelled out in the TSA LASP. And the need for an audit is in any case questionable. The aviation industry as a whole is highly compliance-oriented. “Honest people comply with the regulations,” explained Jacqueline Rosser, National Air Transportation Association (NATA) director of regulatory affairs, “because it’s the right thing to do and because of the ‘potential’ for enforcement action.”
The need for the biennial audit is therefore questionable because, Rosser pointed out, there is no statute of limitations on FAA and TSA regulations and these government agencies can go after a non-compliant operation at any time. Of more importance, she added, “is that inspection and enforcement are inherently governmental functions. If the TSA wants to determine my level of compliance, it needs to come and check my operation out for itself.”
Eric Byer, NATA vice president of government and industry affairs, echoed that sentiment, noting that the TSA doesn’t charge airlines for security, but in the LASP proposes that operators of certain aircraft flown under FAA Part 91 regulations pay for what the TSA should be doing.
“The fact that the TSA is mandating the use of an outside party to enforce regulations is unprecedented,” agreed Andy Cebula, AOPA executive vice president of government affairs. “When the FAA allows delegation authority it is normally to speed up the process of having an FAA inspector actually perform the required responsibility, so it is optional if you want to use a check airman, as an example. The TSA, however, is mandating the use of a third party both for the inspections and the checks against the terrorist watch list.”
The NBAA Web site contains a lot of information on the LASP and how it will affect operators, including a detailed analysis as well as a worksheet on questions raised by the TSA and a mechanism to help members respond to those questions in their comments.
On the question of the TSA audit’s being a new process for Part 91 operators, NBAA senior vice president of operations Steve Brown said for business aviation, “the idea of audits is not uncommon.” Some examples of audit-like requirements include the biennial flight review and medical certification or audits conducted for voluntary programs like the IS-BAO or SMS standards programs. In any case, regulated entities, he added, are always audited in different ways by the regulator for compliance with regulations, whether in aircraft certification, pilot licensing or operating rules.
How the audit portion of the LASP rules turns out won’t be known until the rule is closer to its final form, and it could end up requiring audits of a smaller portion of the regulated population of nearly 10,000 operators. And what the TSA does with the audit information is also still up in the air. “All of that is as yet undefined,” Brown said. “It’s dependent upon the regulators’ approach to auditing and enforcement and also upon the underlying regulations associated with the audit.”
While the TSA seems determined to push this rule through–TSA secretary Michael Chertoff has been talking about these rules for more than a year–the aviation industry might find some comfort in what President-elect Barack Obama said in response to questions submitted by AOPA: “As I develop homeland security policies, I will always keep in mind that to impinge on the rights of our own citizens or restrict the freedoms for which our nation stands would be to give terrorists the victory they seek.”
Given the TSA’s recent announcement that it has extended the comment period to Feb. 27, 2009, further developments of the LASP proposal will fall under the Obama administration and the rules may yet be modified.