AIN Blog: Bizav Wins Latest Barr Fight, but the Battle Isn’t Over Just Yet

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President Obama boards Air Force One
President Obama, who signed the appropriations bill that reinstates the Barr program, boarding Air Force One (a modified Boeing 747-200B), arguably the most recognizable corporate jet in the world. (Official White House Photo by Pete Souza)
November 23, 2011 - 8:12am

No doubt that the general and business aviation associations were high-fiving each other last Friday when President Obama signed an appropriations bill containing language that reinstates the Block Aircraft Registration Request (Barr) program through the end of Fiscal Year 2012 (Sept. 30, 2012). The Department of Transportation (DOT), the FAA’s parent agency, ended the tail-number blocking program in early August, citing the need for more transparency in government.

The reason was a fairly weak cover for what appears to be a political initiative pushed by DOT Secretary Ray La Hood, possibly even at the behest of his boss, President Obama. It didn’t matter what the aircraft owners and operators thought about the proposed changes to Barr; the more than 850 negative comments they submitted to the agency didn’t result in any changes to the original proposal. Basically, the DOT did what it wanted to do, damn everyone else.

But when the DOT actually dismantled Barr, NBAA and AOPA sued the FAA over the action. For some as-yet-unknown reason the case was expedited in the court system, and initial hearings were set for December 2–that’s less than four months after the lawsuit was filed, which is warp speed in the courts.

And last Friday, Congress sent a clear message to the FAA/DOT to reinstate Barr, but the agencies have yet to do anything. My inquiries this week to the FAA about Barr reinstatement were referred to the DOT, a not-so-subtle reminder of which agency has been driving the Barr issue.

When I contacted the DOT yesterday, it took an agency spokesman more than two hours to tell me, “We’re aware of the legislation and are reviewing it.” I should hope so, since President Obama signed the bill four days earlier. The DOT has yet to answer AIN’s specific questions about how and when the agency will restore the Barr program.

But there’s not much to review when it comes to the bill amendment relating to Barr: “None of the funds made available…may be used to implement or to continue to implement any limitation on the ability of any owner or operator of a private aircraft to obtain, upon a request to the Administrator of the [FAA], a blocking of that owner’s or operator’s aircraft registration number from any display of the [FAA’s] Aircraft Situational Display to Industry data.” In short, Congress wants the FAA/DOT to put Barr back to the way it used to be.

It took the FAA/DOT only about five working days after the final rule was issued on August 2 to wind down Barr, so it really shouldn’t take much more time to restore the program. Today marks working day number three after the legislation was signed, but who’s counting?

The real question is how the DOT is reviewing the legislation. Is it looking at it and trying to figure out a plan for how and when it can stand up Barr again, or is it looking for some kind of loophole so it can continue to deny aircraft operators from blocking their tail numbers from the online flight trackers?

If it’s the former, then why does the DOT appear to be dragging its feet? What’s taking so long for the agency to review about 100 words and publicly announce a plan to comply with Congress’s intent?

What I fear is that it’s the latter: the agency is trying to wiggle its way out of this. The DOT has proved that it will do what it wants to do when it comes to Barr, so why should it change course now?

Thankfully, the Barr lawsuit court hearing is still on for next Friday. This puts NBAA and AOPA in a more powerful position than they would have been otherwise. Their lawyers will surely be whipping out the bill’s Barr amendment as Exhibit A to the judge, and it will instantly be game over for the DOT. A judge could very well force the DOT to reinstate Barr within a specific time period. And then if it fails to do so, the agency could find itself in contempt of court. Let’s hope it doesn’t have to go there and that the DOT will do the right thing and just comply with the law.

While the business aviation community won this latest battle over Barr, the war really won’t be over until the DOT/FAA says how and when they will restore Barr and then actually follows through on that plan. Your move, DOT

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David Wiegand
on November 28, 2011 - 10:50am

This whole thing is an exercise in silliness.

First, the DOT (every federal agency or department) will always what it wants. And what it wants should always be consistent with its statutory charter and the interests of the "public at large", even if that is contrary to the desires of the NBAA and other aviation special interest groups.

Second, "reinstatement of the BARR program" will be a pyrrhic victory for the BizAv interests. A little history is in order here:

You may recall the harangue back in late 2008, when automobile manufacturers and other corporations were showing up in Congress with their tin cups, begging for Government monies to help them out. A public interest group (Pro Publica) learned that many of these corporate honchos were travelling to DC in their expensive private jets (which cost a small fortune to operate), and thought it would be interersting to explore the claim of these corporate honchos begging for money while, at the same time, using their expensive corporate jets for transportation. The problem for Pro Publica was getting the documentary evidence of this use.

Under the then existing BARR program, the NBAA had agreements with subscribers (like Flight View) to the FAA's ASDI program that prohibited them from disclosing this information. They then found out that the NBAA had managed to finagle a separate agreement with the FAA, whereby the NBAA would submit directly to the FAA a list of aircraft registration numbers who's owners wished to have their aircraft blocked at the FAA source, so that subscribers like Flight View wouldn't even receive that information. This list became known as the "Block List." It is NOT part of the BARR program.

Pro Publica learned of the existence of this list, and submitted a FOIA request to the FAA in December 2008 to get their hands on it. When the NBAA learned that Pro Publica was trying to get the list from the FAA, they filed a "reverse FOIA lawsuit" against the FAA to prohibit the agency from disclosing it. See National Business Association, Inc. v. Federal Aviation Administration, Civ No. 09-1089 (D.C. DC). The NBAA tried to convince the court that divulging the "Block List" would result in the disclosure of confidential commerical or financial information that is prohibited under Expemtion 4 of the FOIA. In essence, the NBAA argued that concealing the whereabout of certain corporate aircraft gave those corporations an economic advantage over their competitors, and revealing the "Block List" thru the FOIA would provide those competitors with information from which they could piece together where corporate bigwigs were travelling for important meetings, etc., which would effectively CANCEL OUT that claimed economic advantages. In other words, the NBAA wanted to continue using the FAA (a public agency) as its shill for securing for some of its members some perceived economic advantage over others.

The court disagreed, and Pro Publica received the "Block List".

Having lost its reverse FOIA lawsuit, the NBAA and other similar BizAv interests then lobbied the FAA and Congress (under the guise of a need for personal privacy and personal security) in an attempt to "back door" the issue, . . . and they succeeded . . . somewhat.

With the new legislation, things will probably revert back to the way things were in the past, which means that hated "Block list" will still be discoverable under the FOIA, so folks like Pro Publica can find out (after the fact) which aircraft are being concealed by their owners from the public's view.

As they say, what goes around comes around.

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bamdibedino
on March 8, 2012 - 6:31pm

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