February 20, 2003
Admiral James M. Loy Undersecretary of Transportation Transportation Security Administration Room 10126, Nasif Building 400 Seventh Street, SW Washington, DC 20590-0001
Dear Admiral Loy:
As you and I discussed last week, the almost 400,000 members of the Aircraft Owners and Pilots Association (AOPA) have serious concerns about the recent direct final rule, "Threat Assessments Regarding Citizens of the United States Who Hold or Apply for FAA Certificates," issued by the Transportation Security Administration (TSA) on January 24, 2003. There is also a companion rule issued by the Federal Aviation Administration (FAA) titled, "Ineligibility for an Airman Certificate Based on Security Grounds."
While AOPA fully supports the goal of combating terrorism and has worked closely with the TSA in this effort, we oppose the agency's recent final rule. We believe it undermines one of the most foundational elements of the nation by suspending the rights of U.S. citizens who hold pilot certificates to "due process." The requirement mandating that the FAA immediately suspend, revoke, or refuse to issue a pilot certificate to anyone that TSA determines poses a threat to air transportation security without a third-party appeal, or clear criteria of the reasons, is alarming. Releasing the rule as a direct final, rather than using the traditional notice of proposed rulemaking process, also raises questions about the TSA's interest in evaluating the impacts of this action on pilots.
According to both agencies, these rules were promulgated under the authority Congress provided in the Aviation Transportation Security Act of 2001 (ATSA), which directed the TSA and the FAA to "make modifications in the system for issuing airman certificates related to combating acts of terrorism." The FAA has always possessed the authority to issue an emergency suspension or revocation of an airman's certificate and has exercised this authority on issues of national security prior to the issuance of these rules. Likewise, an affected airman has held specific procedural rights that included an appeals process to an impartial adjudicator. Therefore, AOPA asks that the TSA suspend enforcement of the rule 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.
The largest concern of AOPA members with this rulemaking action 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 the TSA, based on materials that may not be disclosed to the individual if the 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 the TSA (the original arbiter), and because of national security concerns, the information implicating the pilot need not be revealed. This does not allow for any meaningful appeal process to a third party or impartial adjudicator.
AOPA recommends that the National Transportation Safety Board (NTSB) should be given the responsibility for the adjudication of an FAA certificate action that is based on a TSA determination that an individual poses or is "suspected of posing" a security threat. Chapter 447 of Title 49 of the U.S. Code grants authority to the FAA, initially to issue airman certificates, and ultimately to suspend or revoke airman certificates. It also grants the right of appeal to a pilot from a denial, suspension, or revocation of an airman certificate. The appeal is to the NTSB. (See 49 USC 44703 and 44709.) The members of the NTSB are appointed by the President, are approved by the U.S. Senate, experienced in transportation issues, and are familiar with the sensitivity of airman certificate actions.
AOPA is also troubled that the rules seem beyond the scope of authority granted under the ATSA. The ATSA directs the TSA to assess threats, makes plans for dealing with threats, and coordinates with agencies including the FAA. The TSA is also required to establish procedures for notifying the administrator of the FAA 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, the TSA rule is requiring the FAA to revoke pilot certificates 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. A manner that affords to airmen all of the traditional due-process protections historically provided in the Federal Transportation Code.
Finally, the rules do not provide criteria (even vaguely) to be used by the 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 the TSA that "an individual poses a security threat." However, there is no discussion of the standards, procedures, or criteria by which the TSA makes the threat determination. If an individual refuted such charges, they would have to be aware of the evidence against them. At a minimum, a definition of the disqualifiers used to determine whether an individual "poses a threat" should be made part of the rule.
I appreciate the opportunity to formally raise these important issues with you, as AOPA has been working with your policy and legal staff since they were first announced. I look forward to working with you and members of your staff to meet the intent of the rulemaking action, but in a manner that protects the interests of America's law-abiding and patriotic U.S. citizens.
February 19, 2003
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