On October 30, 2008, the Department of Homeland Security’s Transportation Security Administration (TSA) issued a proposed rule that would require adoption of security programs by all operators of corporate and private large aircraft,¹ including those not currently affected by security regulations. This rule would merge the current security programs for partial program, twelve-five (cargo) program, and private charter operators into a proposed “large aircraft security program” (LASP) that would impose significant new requirements on general aviation operators not currently regulated by TSA. This rule, if finalized, would impose significant costs² on such operators.

TSA anticipates that this rulemaking would impose requirements on more than 9,000 additional aircraft operators. Each of these newly-regulated operators would incur estimated annual compliance costs in the range of $12,259.00 to $28,356.00. Each of the operators covered by existing security plan requirements would incur additional costs in the range of $2,634.00 to $4,960.00 annually.

The rule proposes that, as part of a LASP, aircraft operators would be required to take a number of actions, including the following:

• Ensure that flight crews have undergone fingerprint-based criminal history record checks through TSA;³
• Conduct watch list matching of all passengers through a TSA-approved service provider (requiring individuals to disclose full name and possibly gender and date of birth);⁴
• Undergo a biennial audit of compliance by a TSA-approved auditor;⁵
• Check property on board for unauthorized persons;
• Designate, train, and utilize Aircraft Operator Security Coordinators, Ground Security Coordinators, and In-Flight Security Coordinators;⁶
• Take additional security precautions (including providing employees with information about law enforcement assistance and transporting Federal Air Marshals upon notification by TSA);
• For all-cargo operations, comply with current cargo requirements for the Twelve-Five All-Cargo
• Program by applying security measures to onboard cargo as well as persons who board the aircraft and their accessible property; and
• For aircraft with a maximum certificated takeoff weight (MTOW) of over 45,500 kg operated for compensation or hire, screen passengers and their accessible property.

The rule proposes a phased-in compliance schedule by region, as follows:

• Phase 1: Mid-Atlantic regions (months 1-4 after the effective date of the final rule)
• Phase 2: North-East region (months 5-8)
• Phase 3: Southern region (months 9-12)
• Phase 4: Mid-West region (months 13-16)
• Phase 5: Western region (months 17-20)
• Phase 6: Existing security program holders (months 21-24)

TSA is seeking comments from the public about a wide variety of issues regarding LASP, including the following noteworthy topics:

• Whether a larger size threshold (e.g., 45,500 kg MTOW) should be used;
• The minimum time in advance of a flight for submission of passenger information to watch-list service providers;
• How aircraft operators could provide privacy notices to passengers;
• Whether and how security auditors should be assigned to aircraft operators;
• Whether there is a more cost-effective way to meet the rule’s security requirements other than requiring aircraft operators to designate Security Coordinators;
• Whether this rule should be more closely aligned with the Secure Flight final rule under which TSA will assume from the commercial airlines the responsibility for comparing passenger information to Federal government watch lists for both domestic and international flights;⁷ and
• Whether the rule would have a larger economic effect on newly regulated aircraft operators than indicated in TSA estimates.

TSA will accept public comments on the LASP proposed rule until February 27, 2009.

Private aircraft operators should also note that, on November 18, 2008, the Department of Homeland Security’s Bureau of Customs and Border Protection (CBP) issued a final rule that requires private aircraft pilots arriving in the United States from a foreign location or departing the U.S. for a foreign location to transmit electronically to CBP certain passenger manifest information for each passenger onboard the aircraft. 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 must comply with the requirements of this rule on May 18, 2009.

Please contact SGR’s Air Transport Industry Group if you are interested in filing public comments on the TSA proposed rule for LASP or if you have questions about compliance issues for the CBP or the Secure Flight final rules.

Endnotes