Regulating in secret…. a year later

About a year ago, the hot topic in the aviation regulatory world was Security Directive (SD) 08F. NATA received numerous calls from members and non-members alike expressing their concerns over this SD. One of the most frustrating aspects of that issue was that even though NATA member companies were directly affected by the SD neither they nor us here at NATA were allowed to read the directive to understand exactly what was required. Over the course of the issue, more information about what would be required became publicly available but many of the individuals and companies that were being subjected to new rules at airports had no idea what the rules actually said. A year later, SD08F, now replaced by SD08G, is still an issue and the Transportation Security Administration (TSA) is expanding the list of entities subject to SDs with the issuance of the proposed Repair Station Security Rule.

At its core, an SD is a change in regulations affecting security. The two major differences between the issuance of a security directive and the traditional regulatory process are that SDs are not subject to public comment and they are classified as Sensitive Security Information (SSI). As SSI, SDs can only be released to the “regulated parties” as defined by the TSA and, therefore, are basically secret regulations. It is important to understand that the TSA must have the authority to issue SDs to address immediate threats. Effective security requires the flexibility to react to emerging and immediate threats without waiting for a lengthy public comment process. That was the purpose for which SDs were designed: to give the TSA the authority to change regulations quickly to account for a tactical threat. The issue surrounding SD 08F/G is that the directive addressed a long-term strategic goal that had the possibility to affect the businesses and lives of non-regulated parties, who because of the SSI classification of the SD would have no opportunity to comment on rule change or even know exactly what it involved.

SD 08F/G required anyone at a 14 CFR 1542 regulated airport who needed unescorted access to the Airport Operations Area (AOA) , such as FBO, repair station and flight school employees and GA pilots, to obtain airport-issued identification prior to receiving that access. Those individuals would need to submit certain identifying information to the airport and undergo a TSA security threat assessment. Individuals who did not pass the security threat assessment would be banned from accessing the airport AOA. As evidenced by the fact that the effective date of the SD was delayed for months while revisions were written, SD 08F/G was not addressing an immediate threat. The concern in the industry was that this was not the type of issue SDs were designed to address. Rather, the issue of badging and identification usage at the airport would be better handled through the traditional regulatory process allowing the industry the opportunity to review and comment on the proposal. Individuals and companies engaged in providing aeronautical services, such as NATA’s members, are the experts and their input can be invaluable in creating long-term security solutions that allow the industry to thrive.

NATA continues to fight against the improper use of security directives. The association has supported legislation (H.R. 3678) introduced by Rep. John Mica (R-FL) to limit the use of SDs to respond to imminent threats rather than addressing long-term security solutions. With the authority of SDs soon expanding to cover repair stations as well, NATA would like to encourage our membership to continue to contact us any time significant issues occur as a result of SD compliance. By continuing to compile information on the effects of SD compliance, NATA can combat future improper use of the SD process with hard facts about compliance issues.

By:  Mike France, Director, Regulatory Affairs

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