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FAA Provides Guidance on Documenting Security Concerns
July 1, 2011
In addition to challenging the government's plan to dismantle the BARR program, NBAA also asked the FAA for details on how operators should go about submitting a "certified security concern" to the agency. Under the FAA plan, an aircraft owner or operator must demonstrate a valid security concern or meet the Treasury regulations for a business-oriented security concern in order to ensure that flight tracking information is not publically disclosed.
The owner or operator covered by a certified security concern must submit the concern by July 14, 2011. Information on security concerns can be submitted after July 14, but the FAA may not review the information before the BARR program changes takes effect.
On June 10, NBAA posed a number of specific questions to the FAA regarding proposed BARR program changes. While responses to some of the questions have not yet been received, the FAA did provide a partial response.
NBAA also developed answers to other frequently asked questions on the proposed BARR program changes. Review the FAQs.
Does the FAA have a form or approved format for submitting certified security concerns?
We have not developed a form or prescribed a format for submitting the necessary certifications, and we currently have no plans to do so. However, we can identify an approach to certification that will satisfy the requirements of the FAA's June 3 notice.
The June 3 notice identifies two varieties of certification that the FAA may find acceptable to support the blocking of aircraft data. The first is a generic certification and factual justification for a specific security concern, and the second is a certification that the aircraft satisfies the requirements for a bona fide business-oriented security concern under 26 C.F.R. section 1.132-5(m). With regard to the second avenue--the Treasury regulation bona fide business-oriented security concern--a company might submit a written certification that, as prescribed in 26 C.F.R. section 1.132-5(m), it has currently implemented for one or more of its employees an overall security program that is acceptable to the Commissioner of Internal Revenue, and that the protected employee(s) travel on the company's aircraft for business or personal reasons.
The certification should bear the signature of a company official who is in a position to verify and represent the existence and content of the company's overall security program and should include the company official's written name and professional title. The company may scan the signed certification into an electronic document and submit it to the electronic mail address identified in the FAA's June 3 notice, or the company may submit the signed certification by mail at the street address specified in the June 3 notice.
The company may specify the number of months for which employee protection under the overall security program is required. If the period exceeds twelve months, the company will have to submit a new certification in sufficient time before the end of the twelfth month that reflects the then-current situation. If owners submit their new certification at the beginning of the twelfth month after their prior submission, the process should be seamless for them.
Will the FAA be able to advise how best to demonstrate a certified security concern - particularly if based on threat information?
As for the circumstances that represent a valid security concern for the generic certification, the subject is discussed in the text of the FAA's final notice, which is published in the Federal Register at 76 Fed. Reg. 32,258, 32,261-62 (June 3, 2011). Among the critical considerations, the identified security concern cannot be based on speculative or abstract fear. In addition, a generalized, non-specific security concern is unlikely to be found valid.
Who can owners and operators contact at the FAA for questions about the proposed BARR program changes?
U.S. Department of Transportation
FAA System Operations Service Unit
Programs Directorate, ATO-R