On January 24, 2003, without prior public notice or comment, the Federal Aviation Administration (FAA) and Transportation Security Administration (TSA) published " direct final rules" mandating the FAA to immediately suspend, revoke, or refuse to issue a pilot certificate to anyone the TSA determines poses a threat to transportation security.
According to both agencies, these rules were promulgated under the authority Congress provided in the Aviation Transportation Security Act of 2001(ATSA), which directed TSA and the FAA to "make modifications in the system for issuing airman certificates related to combating acts of terrorism." On January 23rd, the FAA issued its final rule, Ineligibility for an Airman Certificate Based on Security Grounds, and the TSA issued direct final rules, Threat Assessments Regarding Alien Holders of, and Applicants for, FAA Certificates and Threat Assessments Regarding Citizens of the United States Who Hold or Apply for FAA Certificates. These rules became effective on January 24, 2003.
While AOPA recognizes the importance of preventing terrorists from using aircraft to attack the U.S., these rules clearly undermine the due process rights of U.S. citizens and pilots. The rules also circumvent the regulatory process defined under the Administrative Procedure Act (APT). The following issues must be addressed:
Enforcement of Rules Be Suspended Immediately
In this combination of rulemakings, the TSA and the FAA interpret the ATSA to permit the revocation, suspension, and denial of an airman certificate (including pilot certificates, air traffic controllers, mechanics, and others) of an individual "suspected" by the Department of posing a security threat without the benefit of the "due process" rights traditionally and normally afforded to airmen.
AOPA Position: The enforcement of these rules should be suspended immediately and the opportunity for comments be provided. These comments can then be used by the FAA and the TSA to adequately address the legal rights of citizens and pilots and other issues related to the rules.
Beyond Scope of ATSA Legislation
The rules are beyond the scope of authority granted under the ATSA. ATSA directs TSA to assess threats, makes plans for dealing with threats and coordinate with agencies including the FAA. TSA is also required to establish procedures for notifying the Administrator of the Federal Aviation Administration of the identity of individuals known to pose, or suspected of posing, a risk of air piracy or terrorism or a threat to airline or passenger safety. However, it is a beyond the scope of authority granted in the ATSA to require the FAA to revoke based on such a notification. The intent of the Congress in the Security Act to enhance transportation security can be implemented by the Department in a lawful manner, and at the same time according to airmen all of the traditional due process historically provided in the Federal Transportation Code.
AOPA Position: AOPA recommends removal of the TSA mandate of certificate suspension or revocation, as that authority has already been granted to the FAA by previous legislation.
Disqualifiers Needed in Rule
The rules do not provide criteria (even vaguely) to be used by TSA in determining whether an individual is a security threat. Other TSA and FAA rules include established criteria for assessing threats. For example, the TSA rule for obtaining unescorted access to the Security Identification Display Area (SIDA) at an air carrier airport has a specific list of disqualifiers for the authority. All three rulemaking actions allude to disqualifiers that lead to an initial and ultimately a final determination by TSA that "an individual poses a security threat." However, there is no discussion of the standards, procedures, or criteria by which TSA makes the threat determination. If an individual refuted such charges, they would have to be aware of the evidence against them.
AOPA Position: At a minimum, a definition of the disqualifiers used to determine whether an individual "poses a threat" should be made part of the rule.
Due Process a Necessity
There is a lack of due process available to an individual accused of posing a security threat. Initially the determination is made by an Assistant Administrator of TSA based on materials that may not be disclosed to the individual if TSA says it is "classified" information. The determination is then reviewed by the Deputy Administrator, and in the case of a U.S. citizen, ultimately by the Under Secretary. The process provides no independent review. A pilot can only appeal the threat determination back to TSA (the original arbiter), and because of national security concerns, the information implicating the pilot need not be revealed. The FAA has always possessed the authority, under legislation prior to the ATSA, to issue an emergency suspension or revocation of an airman's certificate. However, the affected airman has specific procedural rights that include an appeals process to an impartial adjudicator. These direct final rulings do not allow for any meaningful appeal process to a third party or impartial adjudicator.
AOPA Position: It is imperative that accused airmen have the benefit of due process. There must be an appeals process that allows for an impartial, third party adjudicator to make a determination outside the TSA jurisdiction.
Rulemaking Circumvented
Promulgation of the rules circumvented the Regulatory process defined under the Administrative Procedure Act (APT) and denied the public the opportunity to adequately participate in this rulemaking initiative. Arguably, the FAA and the TSA have had nearly 16 months to react to the tragic events of September 11, 2001 and to further prevent a possible imminent hazard to aircraft, persons, and property.
AOPA Position: As written, these final rulings ignore the regulatory and due process that protect airmen rights. AOPA recommends that enforcement of the rules be suspended and the opportunity for comments be provided that can be used by the FAA and TSA to adequately address the legal rights of citizens and pilots and other issues related to the rules.
AOPA strongly encourages members to provide comments to these direct final rules. Comments can be submitted through the Docket Management System online until March 25, 2003. Pilots should reference the following Docket Numbers when submitting comments: Docket No. FAA-2003-14293, Docket No.TSA-2002-13732, and Docket No.TSA-2002-13733.