***DRAFT ONLY*** AAAE GA SECURITY WORKING GROUP 1 Version 3 Draft Comments (2/2/09) Notice of Proposed Rule Making (“NPRM”) Large Aircraft Security Program, Other Aircraft Operator Security Program, and Airport Operator Program Federal Register, TSA Docket 2008-0021, October 30, 2008 The following is a response to the above referenced NPRM filed on behalf of the member airports of the American Association of Airport Executives (“AAAE”), the largest independent professional organization in the U.S. representing Commercial and General Aviation (“GA”) airports and their executives. The comments represented herein are based on information collected via a comprehensive survey of affected airports and the information published herein is based on raw data compiled and maintained by AAAE. Summary of Key Points The NPRM stated Reason For The Proposed Rule (145) appears to contradict TSA’s own intelligence evaluation and conclusions:  On page 181 of the NPRM, the TSA asserts “The TSA is aware that, as vulnerabilities within the air carrier and commercial aviation industry are reduced, GA operations become more attractive targets.” However, this is in direct contradiction with TSA’s own Intelligence analysis, which concludes, (U) “there is little evidence to suggest that terrorists are turning their attention specifically to the general aviation sector in the Homeland.”1 This assessment appears to directly contradict the NPRM and brings into serious questions the basis for this proposal. 1 (U) Civil Aviation Threat Assessment. Transportation Security Administration, Office of Intelligence. December 30, 2008 (U/FOUO).***DRAFT ONLY*** AAAE GA SECURITY WORKING GROUP 2The NPRM proposes to make mandatory what is already in place without demonstrating the efficacy [or lack thereof] of the existing combination of mandatory and voluntary initiatives, including a cost benefit analysis;  The NPRM suggests that the GA industry is mostly unregulated and that this presents a risk (145). However, the TSA appears to have issued this NPRM without a comprehensive vulnerability assessment of the GA industry that takes into account the effectiveness of all mandatory and voluntary initiatives implemented to date.2  The NPRM does not include a cost/benefit analysis that justifies the cost of implementing the NPRM against the efficacy of the existing partial voluntary v. proposed security program3 The NPRM constitutes an Unfunded Mandate pursuant to the Unfunded Mandate Act of 1995 (182)  The TSA estimates that it will cost affected GA airports $5.5 Million over 10 years, while estimating its own costs to implement the program at $136.6 Million  Based on a AAAE survey of 45 Reliever Airports affected by the NPRM, the TSA substantially underestimates implementation costs while overestimating airport revenues  The TSA in the NPRM completely omitted the largest cost to GA airports, namely Law Enforcement Officer (LEO) training and on-call deployment expenses  Unlike the commercial air carrier aviation sector, TSA does not propose to reimburse any costs to GA airport operators to implement the NPRM or to improve security 2 For example, the TSA is just now in the process of reviewing the data of vulnerability assessments at 100 GA airport through a pilot program. 3 It should be noted that former DHS Secretary Chertoff often spoke about “measurable programs” and therefore this standard should apply to this DHS/TSA crafted NPRM.***DRAFT ONLY*** AAAE GA SECURITY WORKING GROUP 3The NPRM ignores privacy laws and private property rights (181, 183);  The Fourth Amendment guarantees “the right of the people to be secure in their persons, houses, papers and effects”, which the NPRM appears to ignore. Specifically, private aircraft are not operated with the benefit of a “contract of carriage” as is the case of commercial air carrier aviation, therefore, passengers on private aircraft do not waive any rights while traveling.  Property rights are also guaranteed by the Fifth and Fourteenth Amendments and appear to have been ignored by the NPRM  The NPRM appears to ignore the Privacy Act of 1974 and/or case law  The Second Amendment and case law guarantee the right to bear arms (US v. Miller (1939) and, District of Columbia v. Heller (2008), which the NPRM appears to ignore when coupled with the Fourth Amendment and the absence of a “Contract of Carriage”.  Proper flight planning on private aircraft include many prohibited items, and some states, such as Alaska, even require prohibited items that are not easily stored outside the reach of passengers  The prohibited items may inadvertently weaken aircraft security The NPRM may inadvertently force some airports to violate federal law (181)  The NPRM may force GA airports unable to comply with the NPRM to violate FAA Grant Assurances and be in non-compliance with federal law, possibly resulting in becoming ineligible for AIP funding or becoming subject to other punitive actions Specific Recommendations  Part 1540.301 Subpart D  1542.3 Airport Security Coordinator  1542.109 Alternate Means of Compliance***DRAFT ONLY*** AAAE GA SECURITY WORKING GROUP 4 1542.305 Public Advisories  Defining “Legitimate Business”  Vulnerability Assessments Conclusions Detailed Analysis The NPRM stated Reason For The Proposed Rule (145) contradicts TSA’s own intelligence evaluation and conclusions, and TSA failed to conduct a comprehensive weight/threat assessment of GA aircraft (181). Aside from its “broad authority”, the TSA asserts that the reason for the NPRM is that the “TSA is aware that, as vulnerabilities within the air carrier and commercial aviation industry are reduced, GA operations become more attractive targets.”4 This statement however, is in direct contradiction to TSA’s own intelligence analysis of December 2008, which states that, “there is little evidence to suggest that terrorists are turning their attention specifically to the general aviation sector in the Homeland.”5 While TSA’s authority is not in question here, authority in itself is not a justification and thus the premise for the NPRM relies exclusively on a threat assumption not supported by TSA’s own Intelligence Office. The latter is a serious concern and brings into question the need for the NPRM in the first place. Recommendation: The TSA must clearly