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TRANSPORTATION SECURITY ADMINISTRATION INITIATIVES DIRECTED TOWARD GENERAL AVIATION (1)THE LARGE AIRCRAFT SECURITY PROGRAM (2)SECURITY DIRECTIVES 8F AND.

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Presentation on theme: "TRANSPORTATION SECURITY ADMINISTRATION INITIATIVES DIRECTED TOWARD GENERAL AVIATION (1)THE LARGE AIRCRAFT SECURITY PROGRAM (2)SECURITY DIRECTIVES 8F AND."— Presentation transcript:

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2 TRANSPORTATION SECURITY ADMINISTRATION INITIATIVES DIRECTED TOWARD GENERAL AVIATION (1)THE LARGE AIRCRAFT SECURITY PROGRAM (2)SECURITY DIRECTIVES 8F AND 8G and (3)OPERATION PLAYBOOK By:Alan Armstrong (1)THE LARGE AIRCRAFT SECURITY PROGRAM (2)SECURITY DIRECTIVES 8F AND 8G and (3)OPERATION PLAYBOOK By:Alan Armstrong

3 I. THE TSA ISSUES ITS NPRM October 30, 2008: TSA issues 265 page NPRM: (1) Criminal background checks on pilots (2) Vetting of all passengers by “watch list service provider” (3) Security Positions required: aircraft, ground and in-flight security coordinator (4) Biennial auditing by a third party vendor. I. THE TSA ISSUES ITS NPRM October 30, 2008: TSA issues 265 page NPRM: (1) Criminal background checks on pilots (2) Vetting of all passengers by “watch list service provider” (3) Security Positions required: aircraft, ground and in-flight security coordinator (4) Biennial auditing by a third party vendor.

4 Burdens on reliever airports (a) Create an airport security program, (b) Training requirements for personnel, (c) Handle SSI (sensitive security information) (d) Impose “unfunded mandates ” on airports Burdens on reliever airports (a) Create an airport security program, (b) Training requirements for personnel, (c) Handle SSI (sensitive security information) (d) Impose “unfunded mandates ” on airports

5 January 8, 2009: TSA hearing in Atlanta No scientific study to support aircraft trigger weight of 12,500 pounds. TSA said the trigger weight was based on the ability to inflict damage A Cessna 172 could carry a nuclear device. An ultralight could carry anthrax. With no demonstrated relationship between the trigger weight and the regulation, the regulation was arbitrary and capricious violating substantive due process. January 8, 2009: TSA hearing in Atlanta No scientific study to support aircraft trigger weight of 12,500 pounds. TSA said the trigger weight was based on the ability to inflict damage A Cessna 172 could carry a nuclear device. An ultralight could carry anthrax. With no demonstrated relationship between the trigger weight and the regulation, the regulation was arbitrary and capricious violating substantive due process.

6 II. A PRIMER ON CONSTITUTIONAL LAW AND THE ADMINISTRATIVE PROCEDURE ACT “No person shall be…deprived of life, liberty or property, without due process of law” U.S. Const., Amend V. Administrative Procedure Act: Government agencies must publish notice of intention to promulgate a rule in the Federal Register affording public comment before final rule making. 5 U.S.C. 553 (b)(1), (2), (3). Courts authorized to set aside and hold unlawful agency action that is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law.” 5 U.S.C. 706 (2)(A). Since the TSA trigger weight was not supported by a scientific study, it was arbitrary and capricious violating substantive due process under the Fifth Amendment. “No person shall be…deprived of life, liberty or property, without due process of law” U.S. Const., Amend V. Administrative Procedure Act: Government agencies must publish notice of intention to promulgate a rule in the Federal Register affording public comment before final rule making. 5 U.S.C. 553 (b)(1), (2), (3). Courts authorized to set aside and hold unlawful agency action that is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law.” 5 U.S.C. 706 (2)(A). Since the TSA trigger weight was not supported by a scientific study, it was arbitrary and capricious violating substantive due process under the Fifth Amendment.

7 III. SKIPPER AND I JOINED FORCES AND MOUNT A GRASS ROOTS EFFORT TO STOP THE TSA January 17, 2009: Meeting with Skipper Hyle. January 20, 2009: Rahm Emanuel, Assistant to the President issues Memorandum freezing regulatory initiatives except “national security matters. ” January 21, 2009: White paper completed: A Call to Scrap the TSA’s Large Aircraft Security Program. & January 17, 2009: Meeting with Skipper Hyle. January 20, 2009: Rahm Emanuel, Assistant to the President issues Memorandum freezing regulatory initiatives except “national security matters. ” January 21, 2009: White paper completed: A Call to Scrap the TSA’s Large Aircraft Security Program. &

8 January 21, 2009: Letter dispatched to Rahm Emanuel concerning LASP. January 22, 2009: Skipper meets with staff personnel of Congressman Lynn Westmoreland. The cost of was $24.www.stoplasp.com Westmoreland’s office recommended a grass roots movement. January 21, 2009: Letter dispatched to Rahm Emanuel concerning LASP. January 22, 2009: Skipper meets with staff personnel of Congressman Lynn Westmoreland. The cost of was $24.www.stoplasp.com Westmoreland’s office recommended a grass roots movement.

9 January 26, 2009: Video conference with Congressman Lynn Westmoreland: (a) TSA had published the NPRM just before Christmas hoping to sneak it through. (b) Westmoreland promised to bring the topic up with Congressman Oberstar, Chairman of the House Aviation Subcommittee. (c) Westmoreland advised that the TSA initiative could only be stopped by reaching the “boiling point. ” (d) Westmoreland requested I prepare a synopsis of LASP for him. January 26, 2009: Video conference with Congressman Lynn Westmoreland: (a) TSA had published the NPRM just before Christmas hoping to sneak it through. (b) Westmoreland promised to bring the topic up with Congressman Oberstar, Chairman of the House Aviation Subcommittee. (c) Westmoreland advised that the TSA initiative could only be stopped by reaching the “boiling point. ” (d) Westmoreland requested I prepare a synopsis of LASP for him.

10 January 27, 2009: Westmoreland receives my synopsis of LASP. January 28, 2009: David Hook -- 42% of the reliever airports would not actually accommodate aircraft weighing more than 12,500 pounds. January 28, 2009: Robert P. Olislagers, American Association of Airport Executives: the TSA study of December 30, 2008 declared general aviation was not a security threat undermining the TSA’s position in LASP. February 2, 2009: Letter to Governor Sonny Perdue -- four airports in Georgia are impacted by the TSA’s LASP. January 27, 2009: Westmoreland receives my synopsis of LASP. January 28, 2009: David Hook -- 42% of the reliever airports would not actually accommodate aircraft weighing more than 12,500 pounds. January 28, 2009: Robert P. Olislagers, American Association of Airport Executives: the TSA study of December 30, 2008 declared general aviation was not a security threat undermining the TSA’s position in LASP. February 2, 2009: Letter to Governor Sonny Perdue -- four airports in Georgia are impacted by the TSA’s LASP.

11 IV. OPERATION PLAYBOOK February 3, 2009: Jerry Trachtman: TSA agents had appeared, searching pilots, their cars and their hangars in Melbourne, Florida. Local TSA Director claimed the activities were “training ” for TSA agents. Physician/Pilot told by TSA he could not bring his gun to the airport or put it in his airplane or police would be called. February 11, 2009: Reports filtered from the NBAA – similar operations in Nashville, Tennessee and at the Bradley International Airport. Operation Playbook is classified. Is the TSA’s assertion of “training ” a cover story? February 3, 2009: Jerry Trachtman: TSA agents had appeared, searching pilots, their cars and their hangars in Melbourne, Florida. Local TSA Director claimed the activities were “training ” for TSA agents. Physician/Pilot told by TSA he could not bring his gun to the airport or put it in his airplane or police would be called. February 11, 2009: Reports filtered from the NBAA – similar operations in Nashville, Tennessee and at the Bradley International Airport. Operation Playbook is classified. Is the TSA’s assertion of “training ” a cover story?

12 V. THE LAW SUPPORTS UPHOLDING WARRANTLESS SEARCHES FOR AIRPORT SECURITY American citizens are protected against unreasonable searches and seizures requiring a search warrant or probable cause. U.S. Const., Amend. IV. Airport security authorizes administrative searches with no Fourth Amendment protections. United States v. Aukai, 497 F.3d. 955, (Ninth Cir. Haw. 2007). U.S. Supreme Court recognizes administrative searches at airports. New York v. Burger, 482 U.S. 691, 702 (1987). American citizens are protected against unreasonable searches and seizures requiring a search warrant or probable cause. U.S. Const., Amend. IV. Airport security authorizes administrative searches with no Fourth Amendment protections. United States v. Aukai, 497 F.3d. 955, (Ninth Cir. Haw. 2007). U.S. Supreme Court recognizes administrative searches at airports. New York v. Burger, 482 U.S. 691, 702 (1987).

13 VI. THE MEETING IN WASHINGTON WITH CONGRESSMAN SAM GRAVES Pictured: Mike Collier, Skipper Hyle, Congressman Sam Graves, Alan Armstrong and Mike Matousek.

14 February 20, 2009: Meeting with Congressman Sam Graves and his assistant, Mike Matousek during NWOC. Craig Spence of AOPA and Doug McNair of EAA were present. There was no civil liberties assessment study conducted by the TSA attendant to its implementation of LASP. Obtained formerly classified TSA study of December 30, 2008 admitting general aviation was not a threat to the homeland. February 20, 2009: Meeting with Congressman Sam Graves and his assistant, Mike Matousek during NWOC. Craig Spence of AOPA and Doug McNair of EAA were present. There was no civil liberties assessment study conducted by the TSA attendant to its implementation of LASP. Obtained formerly classified TSA study of December 30, 2008 admitting general aviation was not a threat to the homeland.

15 VII. THE TSA’S USE OF SECURITY DIRECTIVES TO BYPASS THE NOTICE AND PUBLIC COMMENT REQUIREMENTS OF THE ADMINISTRATIVE PROCEDURE ACT TSA can issue a “security directive ” to combat a threat to national security and bypass APA rule making. Security directives without public comment undermine due process. The greatest intrusions into our civil liberties do not come from the decisions of courts. Rather, they come from regulations promulgated by government agencies acting under the auspices of “national security ” or “aviation safety. ” May 14, 2009: Rep. John Salazar (R-CO) voiced concerns about Security Directive SD-8F. A pilot must have a separate badge for each reliever airport. The badging requirements are unfunded mandates imposed by the TSA. TSA can issue a “security directive ” to combat a threat to national security and bypass APA rule making. Security directives without public comment undermine due process. The greatest intrusions into our civil liberties do not come from the decisions of courts. Rather, they come from regulations promulgated by government agencies acting under the auspices of “national security ” or “aviation safety. ” May 14, 2009: Rep. John Salazar (R-CO) voiced concerns about Security Directive SD-8F. A pilot must have a separate badge for each reliever airport. The badging requirements are unfunded mandates imposed by the TSA.

16 May 31, 2009: Major General Amy Courter, National Commander of the Civil Air Patrol: Our recommendation is to move as many CAP aircraft as possible to non-commercial-service airports until our efforts to lessen the restrictions have been exhausted… Skipper is told the TSA does not even know which airports SD-8G applies to. The Mica/Graves/Ehlers/Petri Amendment to H.R would force the TSA to promulgate a security directive in the Federal Register six months after promulgation. May 31, 2009: Major General Amy Courter, National Commander of the Civil Air Patrol: Our recommendation is to move as many CAP aircraft as possible to non-commercial-service airports until our efforts to lessen the restrictions have been exhausted… Skipper is told the TSA does not even know which airports SD-8G applies to. The Mica/Graves/Ehlers/Petri Amendment to H.R would force the TSA to promulgate a security directive in the Federal Register six months after promulgation.

17 VIII. H.R – THE AMENDMENT OFFERED BY MICA, GRAVES, EHLERS AND PETRI – THE FIRST CONGRESSIONAL INTIATIVE June 4, 2009: Letter of Patrick Graham, Executive Director of the Savannah Hilton Head International Airport to Rep. Jack Kingston (R-GA). Graham urged support for the Mica/Graves/Ehlers/Petri Amendment to H.R June 4, 2009: Letter of Patrick Graham, Executive Director of the Savannah Hilton Head International Airport to Rep. Jack Kingston (R-GA). Graham urged support for the Mica/Graves/Ehlers/Petri Amendment to H.R

18 June 4, 2009: The Mica/Graves/Ehlers/Petri Amendment to H.R that requires the TSA, 180 days after implementing a Security Directive, to publish the Security Directive as a rule in the Federal Register in accordance with the Administrative Procedure Act passed by a vote of 219 to 211. There are 435 members of the House of Representatives which means that only five members of the House failed to vote on this amendment to H.R June 5, 2009: “Everyone knows that TSA has had some serious missteps especially when it comes to GA. Someone ought to go over there and grab them by the neck and shake some sense into them. ” (Paraphrase of words attributed to Congressman Pete DeFazio from Oregon during the course of the debate on the amendment to H.R ) June 4, 2009: The Mica/Graves/Ehlers/Petri Amendment to H.R that requires the TSA, 180 days after implementing a Security Directive, to publish the Security Directive as a rule in the Federal Register in accordance with the Administrative Procedure Act passed by a vote of 219 to 211. There are 435 members of the House of Representatives which means that only five members of the House failed to vote on this amendment to H.R June 5, 2009: “Everyone knows that TSA has had some serious missteps especially when it comes to GA. Someone ought to go over there and grab them by the neck and shake some sense into them. ” (Paraphrase of words attributed to Congressman Pete DeFazio from Oregon during the course of the debate on the amendment to H.R )

19 IX. CONGRESSMAN PETE OLSON’S AMENDMENT TO H.R AND THE WATCH LIST SERVICE PROVIDERS – THE SECOND CONGRESSIONAL INITIATIVE The airlines, air carriers and air taxi operators vet their passengers with the TSA. The “Watch List Service Providers ” that operators would vet their passengers with is a cottage industry the TSA envisioned setting up because it lacks the resources to vet all these passengers. June 12, 2009: Congressman Pete Olson (R-TX) said: “H.R includes an amendment offered by (him) to block non-governmental entities from checking terrorist watch-and no-fly lists. ” AOPA Online Briefing Bulletin, June 12, If there are no “Watch List Service Providers ”, then the vetting under LASP would have to be done by the TSA itself. The airlines, air carriers and air taxi operators vet their passengers with the TSA. The “Watch List Service Providers ” that operators would vet their passengers with is a cottage industry the TSA envisioned setting up because it lacks the resources to vet all these passengers. June 12, 2009: Congressman Pete Olson (R-TX) said: “H.R includes an amendment offered by (him) to block non-governmental entities from checking terrorist watch-and no-fly lists. ” AOPA Online Briefing Bulletin, June 12, If there are no “Watch List Service Providers ”, then the vetting under LASP would have to be done by the TSA itself.

20 X. H.R – THE THIRD LEGISLATIVE INITIATIVE June 24, 2009: A committee report accompanying H.R. 2892, an appropriations bill to fund the Department of Homeland Security for fiscal year 2010, included language “commending the TSA for working with stakeholders to develop a modified LASP rule that ‘minimizes adverse effects on general aviation while addressing security concerns’” AOPA Briefing Bulletin, June 26, June 26, 2009: “Senator Mark Pryor (D-AR) worked to include similar language in the Senate version of the bill, which is passed out of committee and awaits consideration on the floor. ” AOPA Briefing Bulletin, June 26, June 24, 2009: A committee report accompanying H.R. 2892, an appropriations bill to fund the Department of Homeland Security for fiscal year 2010, included language “commending the TSA for working with stakeholders to develop a modified LASP rule that ‘minimizes adverse effects on general aviation while addressing security concerns’” AOPA Briefing Bulletin, June 26, June 26, 2009: “Senator Mark Pryor (D-AR) worked to include similar language in the Senate version of the bill, which is passed out of committee and awaits consideration on the floor. ” AOPA Briefing Bulletin, June 26, 2009.

21 XI. CONGRESSMAN CHARLIE DENT AND THE GENERAL AVIATION SECURITY ENHANCEMENT ACT OF 2009 – THE FOURTH LEGISLATIVE INITIATIVE TO SOLVE PROBLEMS CREATED BY TSA Congressman Charlie Dent (R-PA) introduced the General Aviation Security Enhancement Act of 2009 requiring the TSA to enter into negotiated rule making with the aviation community and find solutions to the issues created by the TSA in implementation of its Large Aircraft Security Program. The Dent bill had eight co-sponsors: Olson, Ehlers, Moore, Perlmutter, Miller, Petri, Mica and Campbell.

22 XII. CONGRESSMAN JEFF FORTENBERRY AND H. RES. 508 – THE FIFTH LEGISLATIVE EFFORT IN RELATION TO THE TSA’S LARGE AIRCRAFT SECURITY PROGRAM July 1, 2009: Congressman Jeff Fortenberry (R-NE) introduced H. Res. 508 noting that the general aviation industry contributes $150 Billion Dollars to the U.S. Economy and provides 1.3 million jobs and provides vital services to our nation. Apparently, Fortenberry believed that introduction of this resolution would cause the TSA to be reasonable in its Large Aircraft Security Program initiative. July 1, 2009: Congressman Jeff Fortenberry (R-NE) introduced H. Res. 508 noting that the general aviation industry contributes $150 Billion Dollars to the U.S. Economy and provides 1.3 million jobs and provides vital services to our nation. Apparently, Fortenberry believed that introduction of this resolution would cause the TSA to be reasonable in its Large Aircraft Security Program initiative.

23 XIII. S-1298 – THE SIXTH LEGISLATIVE INITIATIVE DESIGNED TO AMERIOLATE THE MISCHIEF OF THE TSA July 8, 2009: S-1298: The committee understands that TSA is currently working with stakeholders to develop a modified Large Aircraft Security Program rule that minimizes adverse effects on general aviation while addressing security concerns…

24 XIV. H.R – THE SEVENTH LEGISLATIVE EFFORT TO AMELIORATE THE MISCHIEF CREATED BY TSA WITH LASP October 5, 2009: Letter from Greg Principato, President, Airports Council International – North America to Representatives Mica, Boyd, Ehlers, Graves and Petri: Endorsed H.R to ameliorate TSA’s issuing security directives to bypass normal rule making procedures. “We do not believe that Congress intended to provide TSA such latitude that it could issue SDs absent or months after an identified threat. In addition, ATSA (Aviation and Transportation Security Act) requires all SDs to be reviewed by the Transportation Security Oversight Board, which to our knowledge has never held a meeting. ” The inference? – There has been no supervision of TSA abuses by the Transportation Security Oversight Board. The system is not working as it was designed. October 5, 2009: Letter from Greg Principato, President, Airports Council International – North America to Representatives Mica, Boyd, Ehlers, Graves and Petri: Endorsed H.R to ameliorate TSA’s issuing security directives to bypass normal rule making procedures. “We do not believe that Congress intended to provide TSA such latitude that it could issue SDs absent or months after an identified threat. In addition, ATSA (Aviation and Transportation Security Act) requires all SDs to be reviewed by the Transportation Security Oversight Board, which to our knowledge has never held a meeting. ” The inference? – There has been no supervision of TSA abuses by the Transportation Security Oversight Board. The system is not working as it was designed.

25 XV. BRIAN DELAUTER – THE NEW GENERAL MANAGER OF GENERAL AVIATION FOR TSA – DOES THIS SIGNAL A RESOLUTION OF THE ISSUES? November 11, 2009: Brian Delauter, the new General Manager for General Aviation of the TSA made some interesting comments at an AOPA forum: (a) The weight will go up considerably (the word I have heard is about 30,000 pounds). (b) The next fight is going to be over badging pilots, since Delauter asserts the TSA rule was improperly interpreted by pilots. (c) In an incredible leap of logic, the TSA is advancing the idea of having one TSA badge nationwide. This makes absolutely too much sense. Maybe the TSA will finally get it right. (d) Delauter admits the TSA has done a poor job in terms of outreach to the community. November 11, 2009: Brian Delauter, the new General Manager for General Aviation of the TSA made some interesting comments at an AOPA forum: (a) The weight will go up considerably (the word I have heard is about 30,000 pounds). (b) The next fight is going to be over badging pilots, since Delauter asserts the TSA rule was improperly interpreted by pilots. (c) In an incredible leap of logic, the TSA is advancing the idea of having one TSA badge nationwide. This makes absolutely too much sense. Maybe the TSA will finally get it right. (d) Delauter admits the TSA has done a poor job in terms of outreach to the community.

26 XVI. CONCLUSION There have been seven initiatives in Congress directed toward curbing the TSA’s misadventure: (1) The Mica/Graves/Ehlers/Petri Amendment to H.R (2) Rep. Pete Olson’s Amendment to H.R (3) H.R encouraging the TSA to work with stakeholders. (4) Rep. Charlie Dent’s General Aviation Security Enhancement Act of (5) Rep. Jeff Fortenberry’s H.Res (6) S-1298 encouraging TSA to weigh the costs and benefits associated with its security mandate. (7) H.R that would modify the ability of the TSA to employ security directives as a means of bypassing due process under APA. There have been seven initiatives in Congress directed toward curbing the TSA’s misadventure: (1) The Mica/Graves/Ehlers/Petri Amendment to H.R (2) Rep. Pete Olson’s Amendment to H.R (3) H.R encouraging the TSA to work with stakeholders. (4) Rep. Charlie Dent’s General Aviation Security Enhancement Act of (5) Rep. Jeff Fortenberry’s H.Res (6) S-1298 encouraging TSA to weigh the costs and benefits associated with its security mandate. (7) H.R that would modify the ability of the TSA to employ security directives as a means of bypassing due process under APA.

27 The rumor is: (1) TSA will increase the trigger weight to 30,000 pounds, and (2) Exempt all piston-powered airplanes. If the rumor is true: (1) It is designed to assuage the concerns of the majority of the General Aviation community. (2) The TSA hopes general aviation will give up the fight and let it have a Large Aircraft Security Program. The rumor is: (1) TSA will increase the trigger weight to 30,000 pounds, and (2) Exempt all piston-powered airplanes. If the rumor is true: (1) It is designed to assuage the concerns of the majority of the General Aviation community. (2) The TSA hopes general aviation will give up the fight and let it have a Large Aircraft Security Program.

28 The General Aviation Community needs to ponder three things: (1) If TSA gets a Large Aircraft Security Program, what is to prevent it in future NPRM’s from (a) lowering the trigger weight and (b) deleting the piston-powered exemption? (2) If general aviation cannot get the Mica/Graves/Ehlers/Petri Amendment passed, TSA will continue to defy the Constitution by issuing “security directives ” bypassing the rule-making process under APA. (3) Nothing prevents the TSA from resurrecting “Operation Playbook ” and harassing general aviation. The General Aviation Community needs to ponder three things: (1) If TSA gets a Large Aircraft Security Program, what is to prevent it in future NPRM’s from (a) lowering the trigger weight and (b) deleting the piston-powered exemption? (2) If general aviation cannot get the Mica/Graves/Ehlers/Petri Amendment passed, TSA will continue to defy the Constitution by issuing “security directives ” bypassing the rule-making process under APA. (3) Nothing prevents the TSA from resurrecting “Operation Playbook ” and harassing general aviation.

29 XVII. CALL TO ACTION Go to or Secure the names and addresses of Congressmen on the General Aviation Caucus. Contact General Aviation Caucus Members and your Congressmen. Tell them to: (1)Scrap LASP, (2)Stop the TSA from bypassing APA due process by employing security directives, and (3)Scrap “ O peration Playbook. ” “All that is required for evil to triumph is that good men do nothing. ” Edmund Burke Copyright, Alan Armstrong. Go to or Secure the names and addresses of Congressmen on the General Aviation Caucus. Contact General Aviation Caucus Members and your Congressmen. Tell them to: (1)Scrap LASP, (2)Stop the TSA from bypassing APA due process by employing security directives, and (3)Scrap “ O peration Playbook. ” “All that is required for evil to triumph is that good men do nothing. ” Edmund Burke Copyright, Alan Armstrong.

30 FOR MORE INFORMATION VISIT ALAN ARMSTRONG AT BOOTH 841 FOR MORE INFORMATION VISIT ALAN ARMSTRONG AT BOOTH 841


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