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GA Hit With Flurry of Burdensome Security Regulations

November 20, 2008 —Acting on only a handful of the concerns put forth in late 2007 by EAA and other organizations, the U.S. Department of Homeland Security announced The Advance Information on Private Aircraft Arriving and Departing the United States final rule on Monday, November 17, with an effective date of December 18, 2008, and a compliance date of May 18, 2009.

Along with the Washington D.C. Air Defense Identification Zone (ADIZ), which is reportedly about to be made permanent, and the Transportation Security Administration’s Large Aircraft Security Program (LASP) looming large on the horizon, it appears that much of general aviation will have new and troublesome federal regulations promulgated in the final days of the outgoing administration.

This latest set of security regulations comes from the Bureau of Customs and Border Protection (CBP) and elevates requirements for private aircraft entering or departing the United States to a level similar to those of 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 vetting passenger and crew manifests through the terrorist watch list.  CBP did however, act on EAA comments 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, allowing 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.

Private aircraft are defined by CBP as “any aircraft, other than government or military, which are not engaged in carrying passengers or cargo for compensation.” There is no distinction with regard to weight or capacity. Failure to comply with the new regulations could result in a fine of $5,000 for a first offense, $10,000 and possibly jail time for subsequent violations.

 “What’s especially troubling is that EAA and other GA organizations have for the most part successfully mitigated proposed security measures that have sought to treat small GA aircraft the same as commercial airliners,” said Doug Macnair, EAA vice president of government relations. “This new rule makes no distinction, and seeks to paint all aircraft classes with the same broad brush, which shakes any belief that TSA’s proposed Large Aircraft Security Rule would really be held to only large aircraft over the long term.”

Macnair points to some telling content in the final rule where CBP defends treating all aircraft as potential security threats, regardless of size:
“Any size aircraft (large or small) may meet the definition of a private aircraft under CBP regulations,” CBP maintains. “Furthermore, even though large aircraft may inflict more damage if flown into infrastructure, both large and small aircraft present a threat because they may be used to transport terrorists or terrorist weapons. Creating an exemption for private aircraft would provide a loophole that could compromise our national security. Furthermore, the purpose of the rule is not only to provide CBP with advance aircraft information, but to also provide CBP with advance information regarding pilots and passengers traveling via private aircraft. This will allow DHS to conduct threat assessments and reduce the probability of a terrorist attack by allowing for the advance identification of individuals on the “No-Fly” list prior to their gaining access to U.S. airspace via an airborne aircraft, and granting, denying or restricting landing rights accordingly. This information is needed for each flight by private aircraft arriving in and departing from the United States, regardless of the size or weight.”

“Since the September 11, 2001, terrorist attacks on our nation, EAA and other GA organizations have worked in good faith with government security officials on prudent measures to increase aviation security in this country, while helping to educate them on the unique and different operating profiles of smaller aircraft. A Cessna 172 is not the same as a Boeing 747 and a personal aircraft is not the same as one carrying passengers or property for hire,” Macnair explained.  CBP has gone so far as to apply its new border crossing regulations to hot air balloons.

The CBP rule also ignores the contention of hundreds of NPRM commenters including EAA; the rule does little to increase security for private aircraft operators because passengers aboard private aircraft generally have an established relationship with the pilot.

In response, CBP writes:  The purpose of this rule is to increase U.S. national security as well as that of private aircraft operators. As such, it is entirely possible that the family members, friends, acquaintances and employers who may travel as passengers on private aircraft are in fact on the “No-Fly” list unbeknownst to the pilot, which will affect whether CBP grants, denies, or restricts landing rights to the aircraft. Because the advance screening will allow for the identification of individuals on the “No-Fly” list and as such will prevent these individuals from gaining access to U.S. airspace, the rule will in fact increase security for private aircraft operators. As previously stated, CBP believes that the passenger manifest information allows CBP and other law enforcement officials to better identify the travel plans of individuals on the “No-Fly” list. The final rule addresses the threat to national security presented by private aircraft or any of its occupants, whether or not the operator of the aircraft has a personal relationship with any or all passengers.”

EAA is urging its members to submit comments to the TSA’s proposed Large Aircraft Security Program (LASP), which if enacted would require owners and operators of aircraft 12,500 lbs or heavier to obtain permission from the agency to operate their own personal aircraft every time they carry passengers in domestic airspace. Additionally, all flight crews would be required to undergo fingerprinting and a background check, all passengers would have to be vetted against the government’s terrorist watch lists, and numerous security requirements would be imposed on airports serving these “large” aircraft.

EAA successfully petitioned TSA for an extension to the comment period and adamantly opposes this regulation.  “We urge all members to respond to TSA by the comment deadline, February 27, 2009, regardless of the weight aircraft they operate,” said Macnair. “It is evident from the CBP final rule that ultimately some agencies charged with aviation security do not have any interest in distinguishing their requirements based on the size and weight of the aircraft involved.  This must be borne in mind when contemplating the long-term future of TSA’s proposed Large Aircraft Security Program and the tendency for that weight limit to be continually pushed lower by those who view all aircraft as a threat.”

EAA will continue to work tirelessly on behalf of all of aviation in an effort to preserve the freedom of flight we all treasure.

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