Trick or Treat: It’s TSA Knocking at Your Door

Despite the cold weather and after a decade of inaction, the Transportation Security Administration’s (TSA’s) rulemaking process thawed; the agency released its long-pending aircraft repair station regulations on Jan. 3, 2014.

First mandated by Congress in 2003, the security rules were unnecessary from the beginning; the regulations were always a solution in search of a problem. However, after Congress prevented the Federal Aviation Administration (FAA) from certificating new foreign repair stations in August 2008 because of TSA’s inaction, the aviation maintenance industry was caught pushing for an unnecessary rule.

In the end, the aircraft repair station rule is fairly straightforward. However, when a diverse industry implements government mandates, there are questions and unintended consequences. Additionally, the rule codifies expansive inspection authority for TSA officials at all Part 145 repair stations.

The regulation’s purpose is “to reduce the likelihood that terrorists would be able to use large aircraft [over 12,500 lbs.] as a weapon.” Nonetheless, the final regulation applies to all repair stations certificated by the FAA under 14 CFR Part 145 (domestic and foreign), except those located on a U.S. or foreign government military bases. (Canadian repair stations are not covered because the FAA does not issue them a repair station certificate.)

Repair stations located on or adjacent to an airport, if there is an access point between the repair station and the airport large enough to move a large (12,500-pound) aircraft, must implement new security measures, including:

(1) Designating (a) point(s) of contact to carry out specified responsibilities;

(2) Preventing the unauthorized operation of large aircraft capable of flight that are left unattended; and

(3) Verifying background information of those individuals who are designated as the TSA point(s) of contact and those who have access to the measure(s) used to prevent the unauthorized operation of unattended, large aircraft capable of flight.

If your repair station isn’t actually on or adjacent to an airport, don’t rest easily. While implementing security measures won’t be necessary, TSA can issue a security directive (SD) setting forth mandatory measures. Any or all Part 145-certificated repair stations must respond to a threat assessment or to a specific risk against civil aviation. Beware if your repair station receives an SD; you must respond to the agency and distribution is limited to individuals who have an operational need to know (unless TSA’s prior consent is obtained).

Is that TSA knocking at your repair station door? It could be. All FAA-certificated Part 145 repair stations must allow authorized officials at any time and in a “reasonable manner” without notice to enter, conduct audits, assessments or inspections of any property, facilities, equipment and operations. These inspections can occur on weekends and federal holidays. Authorized officials may also view, inspect and copy records as necessary to carry out the agency’s security-related statutory or regulatory authorities, including:

• Assessing threats to transportation security;

• Enforcing security-related regulations, directives and requirements;

• Inspecting, assessing and auditing security facilities, equipment and systems;

• Ensuring the adequacy of security measures;

• Verifying implementation of security measures;

• Reviewing security plans; and

• Carrying out other duties and powers relating to transportation security.

Pretty broad, huh? Rest assured, according to TSA, it will seek access to records relevant only to security. More reassuring is the fact that the agency also said it intends to use properly trained and credentialed personnel to conduct inspections, alleviating concerns over safety and possible damage to property.

So, one day you’re doing your job, maybe even on a Saturday (or Christmas). A TSA inspector shows up at your repair station and demands to conduct an inspection under the guise of aviation security. You ask for identification. Warning: “Repair stations may not photocopy or otherwise reproduce the credential to prevent unauthorized individuals from using fake credentials to access a repair station.” The good news: the agency will assist repair stations to develop training on identifying TSA and DHS credentials.

ARSA is currently working with TSA to clarify the “real world” implications of the rule. There will no doubt be many. The association is working to ensure TSA appreciates the complexities of the industry and repair stations understand compliance with the new regulations.

Daniel B. Fisher is ARSA’s vice president of legislative affairs and senior legislative associate at the law firm of Obadal, Filler, MacLeod and Klein. Fisher attended St. Mary’s College of Maryland, where he graduated magna cum laude, and received a law degree from George Mason University School of Law. Prior to joining ARSA, Fisher served four years on the U.S. Senate Judiciary Committee staff of the late Sen. Arlen Specter (Pa.).