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New Bill Aims to Curb DHS’s 'Absolute Power'

October 1, 2009 — Several House members supportive of general aviation introduced a bill Wednesday, September 30, that would reign in the Department of Homeland Security’s (DHS) “absolute power” to issue security directives that severely impact aviation. House Bill 3678 (H.R. 3678) was introduced by John Mica (R-Fla.), Allen Boyd (D-Fla.), Sam Graves (R-Mo.), Vernon Ehlers (R-Mich.), and Thomas Petri (R-Wis.).

An example of the DHS exercising unchecked authority is Security Directive (SD) 1542-04-08F issued in December last year and modified in June. That directive requires commercial airports to revamp their GA ramp security procedures to include background checks, ID badges, and personal escorts to and from aircraft. The SD was issued without input from the general aviation community and appeared despite the lack of an imminent security threat. Unlike the color-coded Homeland Security Advisory System, which adjusts security threat levels based specific concerns, SD 1542-04-08F applies a “one-size-fits-all” response to a transportation sector - general aviation - even in the absence of a credible or immediate threat. It forces an immediate, long-term, and unfunded security mandate on general aviation.

H.R. 3678 would continue to allow DHS to issue security directives, but only when responding to an imminent threat, and only for a finite duration of no more than 180 days. When DHS determines that long-term security processes need to be implemented or an existing security directive needs to be extended past 180 days, the agency would be required to use the public rulemaking process that is applicable to all other federal agencies.

The importance of using the rulemaking process for security regulations is underscored by the recent experience with the TSA’s proposed Large Aircraft Security Program (LASP), which came under massive protest by the GA community with broad support by members of Congress. The result is that TSA is significantly modifying the original proposal and will be reissuing the LASP as a supplemental notice of proposed rulemaking for further public comment.

The security directive process does not afford this opportunity for public input and has been referred to by many as abusive of the Administrative Procedures Act, which is designed to give the public notice of proposed regulatory or policy changes and the opportunity to shape the outcome, or stop it all together.

EAA strongly supports H.B. 3678 and urges members to do so. Contact your House of Representatives member and ask that they not only support H.R. 3678, but become a co-sponsor of this very important bill. At present there is no companion bill in the U.S. Senate.

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