AOPA again opposes TSA's 'pilot insecurity' rules

March 26, 2003

Docket Management System
U.S. Department of Transportation
Room Plaza 401
400 Seventh Street, SW
Washington, DC 20590-0001

RE: TSA-2002-13732
Threat Assessments Regarding Citizens of the United States Who Hold or Apply for FAA Certificates

The Aircraft Owners and Pilots Association (AOPA), representing nearly 400,000 members, has 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. In conjunction with the TSA direct final rule, the Federal Aviation Administration (FAA) issued a companion rule titled, " Ineligibility for an Airman Certificate Based on Security Grounds."

While AOPA supports the goal of combating terrorism and has worked closely with the TSA in this effort, we oppose the agency's recent direct final rule. We believe it undermines one of the most foundational elements of the United States 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 the 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 sincerely evaluating the impacts of this regulatory action on pilots.

Because of the pilot concerns over the rules, AOPA strongly encourages the TSA to address these and other comments in a timely manner. We believe that a third-party review must be added and seek immediate action on this issue.

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." While AOPA recognizes the importance of preventing terrorists from using aircraft to attack the United States, these rules clearly undermine the due process rights of U.S. citizens and pilots. We also contend that the rules circumvent the regulatory process defined under the Administrative Procedure Act (APA).

The primary 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.

The FAA possesses 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 (National Transportation Safety Board [NTSB]). However, these direct final rules do not allow for any meaningful appeal process to a third party or impartial adjudicator.

In a letter dated February 19, 2003, to James Loy, AOPA recommended that the NTSB 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. AOPA contends that 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. However, in a March 14, 2003, reply letter, TSA Administrator Loy wrote, "TSA believes that review of its security threat determination by the NTSB, whose expertise is in aviation safety matters, is not appropriate." The letter went on to explain that the TSA has opened a dialogue with the Department of Homeland Security to seek a final appeal process there.

This exploration by the TSA of a third-party review is encouraging. Rather than the Homeland Security organization, which is really not a true third party, AOPA recommends proceeding with a hearing before a Department of Transportation administrative law judge. This allows for a discovery process, the presentation of witnesses and documentary evidence, and legal argument. Appeal of the judge's decision would be permitted within the agency to an agency decision maker (under secretary of Transportation for Security or the under secretary for Border and Transportation Security or the secretary of the Department of Homeland Security) and a final appellate decision could be further rendered after review of the hearing record in the U.S. Courts of Appeals.

These kinds of procedures currently exist for the TSA's civil penalty proceedings in Part 1503 of the Code of Federal Regulations and in particular in subparts C (Legal Enforcement Actions) and G (Rules of Practice in Transportation Security Administration Civil Penalty Actions). These procedures provide for trial-type hearing and traditional litigation rules of practice, for protections against public disclosure of sensitive security information while permitting the parties to have access to that information, and for a guard against improper interactions between the prosecutors and the decision maker. It is conceivable that these procedures can be adapted and adopted to include the review of agency determinations that an individual poses a security threat to aviation.

Promulgation of these rules circumvented or stretched the application of the regulatory process defined under the APA 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 act to further prevent a possible imminent hazard to aircraft, persons, and property. Issuing the final rules as "direct final" rather than using a proposed rule and comment period gives the aviation community little confidence that the TSA really is concerned with receiving comments on those affected by the rulemaking action.

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, it is a beyond the scope of authority granted in the ATSA to require 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.

AOPA appreciates the opportunity to bring these important issues to your attention, and we look forward to working with the TSA and FAA to meet the intent of the rulemaking action in a manner that will protect the interests of our members as law-abiding, patriotic U.S. citizens.

Sincerely,

Phil Boyer

March 25, 2003