In recent years, commercial aviation has grown accustomed to increasing levels of governmental regulation designed to enhance security. Under the auspices of the Transportation Security Administration (TSA) of the U.S. Department of Homeland Security, the flying public has endured shoeless shuffles through metal detectors in airports. It is now the turn of a new group – corporate and other general aviation – to be regulated by TSA.
Operators Currently Regulated
To date, TSA aviation security rules generally apply only to operators either engaged in common carriage or flying aircraft with a carrying capacity of 20 or more passengers or 6,000 or more pounds of cargo. Existing TSA programs impose a hierarchy of aviation security measures too great and varied to detail here. TSA’s “full program” and “partial program” cover scheduled passenger and public-charter passenger operations with aircraft of varying seating configurations. The “twelve-five program” covers scheduled and charter operations, either passenger or cargo or both, with aircraft rated at more than 12,500 pounds maximum takeoff weight and not covered by the full program. The “private charter program” covers on-demand charter passenger operations loading from or unloading into sterile areas or using an aircraft over 45,500 kg or an aircraft of 61 or more passenger seats. Lastly, the “full all-cargo program” covers cargo operations in aircraft over 45,500 kg.
Proposed Rules for Domestic General Aviation
“General aviation” comprises all operators of corporate and other private aircraft. In October 2008, TSA issued proposed regulations that would require all general-aviation operators of aircraft over 12,500 pounds to maintain a TSA-prescribed “large aircraft security program,” or LASP. Most such operators, who fly under Part 91 of the Federal Aviation Regulations, are not currently covered by any TSA security regulations. The proposed LASP would combine the new general-aviation provisions with the existing programs covering partial program, twelve-five cargo program and private-charter operators. The LASP would impose significant new requirement son general aviation operators, with attendant new costs. TSA anticipates that the new requirements would affect more than 9,000 currently unregulated aircraft operators. According to the agency, compliance would cost each of these operators in the range of $12,259 to $28,356 per year and a currently regulated operator in the range of $2,634 to $4,960 more per year. Numerous parties involved in general aviation reviewed the proposed regulations and filed written comments prior to the February 27, 2009 deadline.
The major requirements proposed under the LASP are summarized below, along with typical comments from industry. Overall, most of the criticism was directed at the agency’s general attempt to treat private-aviation passengers in a manner similar to scheduled and charter aviation passengers.
LASP Requirement
Typical Comment
LASP will apply to operator of all private aircraft over 12,500 pounds maximum takeoff weight.
The threshold is too low because such aircraft are not large enough to cause the heavy ground damage the rules seek to avoid. Set the weight threshold substantially higher. Many commenters suggested 45,500 kilograms (100,309 pounds).
Operator must ensure that all its flight crews undergo fingerprint-based, criminal-history records checks through TSA.
A given pilot may work for many private operators from time to time. Do not require each operator to
background-check each pilot. Instead, perform a single records check on each pilot, which would be usable for any number of operators. Incorporate background check updates into annual pilot training.
Operator must conduct watch-list matching of all passengers through a TSA-approved service provider.
TSA may impose a minimum time for submitting passenger information to service providers. Unlike scheduled and charter operations, in private aviation,
normally all passengers are personally known to the pilots and their employers. Do not require watch-list matching for passengers personally known to the operator or its pilot. Minimum submission times of an hour or more would deprive operators of the speed and flexibility that are prime reasons for using private aircraft.
Operator must undergo a biennial compliance audit by a TSA-approved auditor.
TSA’s estimate for the cost of compliance audits at only $3,050 per operator per year is too optimistic.
Operator must check property on board for unauthorized persons.
Access to most general-aviation airports is strictly controlled. Each aircraft is secured when the pilot is not present. Stowaways on private aircraft are unlikely in the extreme.
Operator must designate, train and utilize Aircraft Operator Security Coordinators, Ground Security Coordinators and In-Flight Security Coordinators.
The government’s cost estimate of $22,990 per operator per year to comply with this personnel requirement is extremely low. For many operators, such requirements would entail hiring one or more additional employees. Combine these functions into a single employee of the operator to save costs.
Prohibit weapons on board in any spaces accessible from the passenger cabin during aircraft operation. Definition of “weapons” may go beyond firearms.
Many general-aviation aircraft have no baggage compartment that is accessible only from the aircraft exterior. This rule would prevent passengers from bringing hunting pieces, professional tools and other equipment on the same aircraft with passengers. Passengers such as engineers or technical specialists may need access to tools or equipment during travel.
Operator must take additional security precautions, including transporting Federal Air Marshals upon notification by TSA.
TSA should not have the power to require Federal Air Marshals on board private aircraft, since generally the operators and pilots personally know each passenger.
The presence of an Air Marshal would add nothing to the security of a general-aviation flight.
To complement these proposed new regulations, the TSA also proposes to require certain airports to adopt security programs for the first time. These would include general-aviation airports designated by the Secretary of Transportation as “reliever” airports,as well as those that regularly serve scheduled or public-charter operations in aircraft over 12,500 pounds.
Following the close of the comment period, TSA called private meetings with general-aviation industry associations and companies with a view toward resolving the many issues raised in the public comments it received. Monthly meetings commenced April 6 and are continuing. The dialogue reportedly is covering certain areas of concern to operators, such as prohibited items and the aircraft weight threshold.
In mid-June 2009, the DHS Office of Inspector General released a report finding “only limited and mostly hypothetical threats” from general aviation, and no “serious homeland security vulnerability requiring TSA to increase regulatory oversight” of general aviation. Although stopping short of a formal recommendation on the proposed regulations, the report would appear to pose an obstacle to TSA’s proceeding with them in their current form.
International General-Aviation Flights
Private aircraft operators should also note that in November 2008, CBP issued a final rule requiring private aircraft pilots arriving in or departing from the U.S. to transmit electronically to CBP certain passenger manifest information for each passenger. This information must be transmitted no later than 60 minutes before an arriving aircraft departs from a foreign location destined for the United States and no later than 60 minutes before a private aircraft departs the United States for a foreign location. Private aircraft pilots are required to comply with this rule as of May 18, 2009.
Airport Regulation
Airports handling commercial airline or public-charter traffic must maintain a security program under which TSA officers screen all passengers, their accessible property and checked baggage through approved security equipment. They also must maintain a secured area where they detect and prevent unauthorized entry, presence and movement of individuals and ground vehicles. Additionally, TSA has authority to be present at unregulated airports to inspect aircraft operators it regulates. In a case of first impression, in early June 2009, TSA famously denied permission to Delta Air Lines to initiate service from Atlanta to Nairobi, Kenya, and from New York to Monrovia, Liberia, on grounds of a “credible threat” to security at the destination airports. The decision came only one day before a much-heralded maiden flight to Nairobi and provoked a diplomatic protest from Kenya.
Passenger Watch Lists
Until recently, the U.S. government has entrusted the airlines and other regulated operators with databases of its passenger watch lists and holds the operators responsible for crosschecking their passenger manifests against the lists for domestic flights. Under the new “Secure Flight” program, TSA is in the process of taking over the crosschecking duties. After the change, the airlines will forward passenger information electronically to TSA, which will perform the checks and authorize the airlines to print boarding passes for cleared passengers. TSA is now assuming list-matching responsibilities from operators whose flights begin and end within the U.S. In the second phase, TSA will take over these duties for flights departing from, arriving in and overflying the U.S. Currently, crosschecking international flights is handled by U.S. Customs and Border Protection (CBP) using its Advanced Passenger Identification System. TSA is to work together with CBP as Secure Flight begins picking up the international watch list duties from CBP as well.
Final Thoughts
As the decade whose beginning shocked Americans awake passes, DHS continues to define its role. One of its component agencies, TSA, is refining and consolidating many of its existing endeavors as well as expanding into a large, new area. The general-aviation industry is intent on reshaping the agency’s proposed scheme to regulate it. After receiving a strong message from the industry, the agency has begun listening to the industry’s concerns. It remains to be seen whether and to what extent TSA may alter its projected course on general aviation.
Walter Hinton
Counsel
Smith, Gambrell & Russell, LLP - Air Transport Practice Group whinton@sgrlaw.com
