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TSA Revises Airport Security Directive SD-8G To Address Transient Operations

By Reigel & Associates, Ltd.

If you fly into an airport that has Part 121 air carrier service and that is not your home-base, you should be aware of the TSA's Airport Security Directive SD-8G. Although the directive has not been made publicly available (because the TSA considers it to be sensitive security information), the TSA reported in an e-mail the impact of SD-8G on transient pilot operations when it became effective June 1, 2009.

According to the TSA, "[f]or transient pilots, they will not be required to have airport badges or background checks from any of the non Home-Based airports they visit. Transient pilots are advised to remain in the footprint of their aircraft and to and from fixed-based operator, service provider or airport exit. Special allowance will be given to transient pilot operators in the AOA (Airport Operations Area) who are fueling or in emergency status."

Unfortunately, SD-8G does not take into account its impact on pilots, including those with multiple bases of operations; after-hours aircraft operations; self-fueling operations; and other normal airport activities (e.g. EAA chapter events or airport open house events). To compound matters, the TSA still has not provided an official list of the airports that are subject to SD-8G's requirements.

In addition to the obvious hub airports in class B airspace, SD-8G will also apply to other airports in class C or D airspace that have Part 121 air carrier operations. Pilots should make sure that they obtain the most current security information at all airports they plan to fly to and from during their pre-flight planning. In this situation, a flight service briefing, and the record it provides, may be a good idea to make sure your information is current and to afford you a potential defense if you are not provided with the correct information and you later have a problem at the affected airport.

Finally, this is yet further regulation by the TSA without complying with the Administrative Procedures Act ("APA"). Ordinarily, an agency, such as the TSA or FAA, must comply with the APA if it wants to issue regulations (e.g. publishing notice of proposed rulemaking, receiving public comment, publishing a final rule etc.). However, TSA's unilateral issuance of Security Directives without notice and comment is, in effect, regulating without complying with the APA.

Unfortunately, I think this will only be changed through one of two methods. First, it could certainly be dealt with politically, although that hasn't been successful so far. Second, if the TSA pursues an enforcement action against an airman for allegedly violating SD-8G, I suppose it may be possible to challenge the validity of SD-8G as a regulation that did not comply with the APA. Although I wouldn't encourage any pilot to be a test case, if a pilot finds himself or herself in this situation, this may be an appropriate defense. Probably worth a shot.

Full post as published by Aviation Law Discussions on June 03, 2009 (boomark / email).