[Federal Register: January 24, 2003 (Volume 68, Number 16)]
[Rules and Regulations]
[Page 3755-3762]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr24ja03-27]
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Part VI
Department of Transportation
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Transportation Security Administration
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49 CFR Part 1540
Threat Assessments Regarding Citizens of the United States and Alien
Holders Who Hold or Apply for FAA Certificates; Final Rules
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DEPARTMENT OF TRANSPORTATION
Transportation Security Administration
49 CFR Part 1540
[Docket No. TSA-2002-13732; Amendment No. 1540-3]
RIN 2110-AA14
Threat Assessments Regarding Citizens of the United States Who
Hold or Apply for FAA Certificates
AGENCY: Transportation Security Administration (TSA), DOT.
ACTION: Final rule; request for comments.
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SUMMARY: This final rule establishes the procedure by which TSA will
notify the subject individual and the Federal Aviation Administration
(FAA) of TSA's assessment that an individual who is a citizen of the
United States and holds or is applying for an FAA airman certificate,
rating, or authorization poses a security threat. This procedure
provides such individuals notice and an opportunity to be heard before
TSA makes a final decision, while furthering the federal government's
important and immediate interest in protecting national security and
providing the nation with a safe and secure transportation system.
DATES: Effective on January 24, 2003. Submit comments by March 25,
2003.
ADDRESSES: Address your comments to the Docket Management System, U.S.
Department of Transportation, Room Plaza 401, 400 Seventh Street, SW.,
Washington, DC 20590-0001. You must identify the docket number TSA-
2002-13732 at the beginning of your comments, and you should submit two
copies of your comments. If you wish to receive confirmation that TSA
received your comments, include a self-addressed, stamped postcard.
You may also submit comments through the Internet to http://dms.dot.gov.
You may review the public docket containing comments to
these regulations in person in the Dockets Office between 9 a.m. and 5
p.m., Monday through Friday, except Federal holidays. The Dockets
Office is on the plaza level of the NASSIF Building at the Department
of Transportation at the above address. Also, you may review public
dockets on the Internet at http://dms.dot.gov.
FOR FURTHER INFORMATION CONTACT: Brandon Straus, Office of the Chief
Counsel, Transportation Security Administration, 400 Seventh Street,
SW., Washington, DC 20590-0001; telephone (202) 493-1224; e-mail:
brandon.straus@tsa.dot.gov. For information regarding the Economic
Analysis, contact Jenny R. Randall, Economist, Office of Security
Regulation & Policy, Transportation Security Administration, 400
Seventh Street, SW., Washington, DC 20590-0001; telephone (202) 385-
1554; e-mail: jenny.randall@tsa.dot.gov.
SUPPLEMENTARY INFORMATION:
Comments Invited
This final rule is being adopted without prior notice and prior
public comment. However, the Regulatory Policies and Procedures of the
Department of Transportation (DOT) (44 FR 1134; February 26, 1979)
provide that, to the maximum extent possible, operating administrations
within DOT should provide an opportunity for public comment on
regulations issued without prior notice. Accordingly, interested
persons are invited to participate in this rulemaking by submitting
written data, views, or arguments. We also invite comments relating to
the economic, environmental, energy, or federalism impacts that might
result from adopting this amendment. The most helpful comments will
reference a specific portion of the rule, explain the reason for any
recommended change, and include supporting data. See ADDRESSES above
for information on how to submit comments.
We will file in the docket all comments we receive, as well as a
report summarizing each substantive public contact with TSA personnel
concerning this rulemaking. The docket is available for public
inspection before and after the comment closing date.
We will consider all comments we receive on or before the closing
date for comments. We will consider comments filed late if it is
possible to do so without incurring expense or delay. We may change
these rules in light of the comments we receive.
Electronic Access
You can get an electronic copy using the Internet by:
(1) Searching the Department of Transportation's electronic Docket
Management System (DMS) Web page (http://dms.dot.gov/search);
(2) Accessing the Government Printing Office's Web page at http://www.access.gpo.gov/su_docs/aces/aces140.html
; or
(3) Visiting the TSA's Law and Policy Web page at http://www.tsa.dot.gov/public/index.jsp
.
In addition, copies are available by writing or calling the
individual in the FOR FURTHER INFORMATION CONTACT section. Make sure to
identify the docket number of this rulemaking.
Small Entity Inquiries
The Small Business Regulatory Enforcement Fairness Act (SBREFA) of
1996 requires the TSA to comply with small entity requests for
information and advice about compliance with statutes and regulations
within the TSA's jurisdiction. Any small entity that has a question
regarding this document may contact the person listed in FOR FURTHER
INFORMATION CONTACT. Persons can obtain further information regarding
SBREFA on the Small Business Administration's Web page at http://www.sba.gov/advo/laws/law_lib.html
.
Background
Following the terrorist attacks on the United States on September
11, 2001, Congress recognized the need for a fundamental change in the
federal government's approach to ensuring the security of civil
aviation. The September 11 attacks highlighted the fact that the
security of the civil aviation system is critical to national security
and essential to the basic freedom of Americans to move in intrastate,
interstate, and international transportation. See H. R. Conf. Rep. 107-
296, 107th Cong., 1st Sess. 53 (2001).
In order to address the need for heightened security in civil
aviation and other modes of transportation, Congress passed the
Aviation and Transportation Security Act (ATSA), Pub. L. 107-71, 115
Stat. 597 (November 19, 2001). ATSA established the TSA within DOT,
operating under the direction of the Under Secretary of Transportation
for Security (Under Secretary). TSA is responsible for security in all
modes of transportation regulated by DOT, including civil aviation.
Accordingly, ATSA transferred the responsibility for civil aviation
security from the FAA to TSA.
ATSA Requirements
As part of its security mission, TSA is responsible for assessing
intelligence and other information in order to identify individuals who
pose a threat to transportation security and to coordinate
countermeasures with other Federal agencies, including the FAA, to
address such threats. See 49 U.S.C. 114(f)(1)-(5), (h)(1)-(4).
Specifically, Congress required TSA to work with the FAA Administrator
to take actions that may affect aviation safety or air carrier
operations. 49 U.S.C. 114(f)(13).
In the course of carrying out this responsibility, TSA receives
information from other federal agencies and other
[[Page 3757]]
sources identifying specific individuals who pose security threats. TSA
also receives, on a regular basis, copies of the airmen registry from
the FAA.\1\ In some cases, individuals identified by other agencies as
security threats hold or have applied for airman certificates, ratings,
or authorizations, such as pilot certificates, mechanic certificates,
and special purpose pilot authorizations, issued by the FAA under 49
U.S.C. Chapter 447. Individuals who pose security threats and hold FAA
certificates, ratings, or authorizations are in positions to disrupt
the transportation system and harm the public.
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\1\ The registry is formally known as the ``Comprehensive Airmen
Information System.''
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In ATSA, Congress specifically required the Under Secretary to
establish procedures to notify the FAA Administrator, among others, of
the identity of individuals known to pose, or suspected of posing, a
threat of air piracy or terrorism, or a threat to airline or passenger
safety. 49 U.S.C. 114(h)(2). Congress required the FAA Administrator to
``make modifications in the system for issuing airman certificates
related to combating acts of terrorism.'' 49 U.S.C. 44703(g).
The Under Secretary has an express mandate to identify and
coordinate countermeasures to address threats to the transportation
system. In addition, Congress has expressly directed TSA to work with
the FAA Administrator with respect to actions that may affect aviation
safety or air carrier operations and to communicate information to the
FAA regarding individuals who pose a security threat. Therefore, TSA is
adopting the procedures set forth herein to notify the FAA of a
security threat concerning a U.S. citizen who holds or is applying for
an FAA certificate, rating, or authorization.
Congress has given the TSA broad powers related to the security of
civil aviation, including the authority to receive, assess, and
distribute intelligence information related to transportation security.
The TSA is charged with serving as the primary liaison for
transportation security to the intelligence and law enforcement
communities. See 49 U.S.C. 114(f)(1) and (5). The Under Secretary is
uniquely situated as an expert in transportation security, based on his
functions, responsibilities, duties, and powers, to determine whether
sufficient cause exists to believe that an individual poses a threat to
aviation security. Congress, in ATSA, committed to the TSA's discretion
the role of assessing such threats and communicating them to other
agencies, including the FAA, for appropriate action.
In ATSA, Congress also created the Transportation Security
Oversight Board (TSOB). 49 U.S.C. 115. The members include the
Secretary of Transportation, the Attorney General, the Secretary of
Defense, the Secretary of the Treasury, and the Director of the Central
Intelligence Agency, or such officials' designees, as well as one
member appointed by the President to represent the National Security
Council and one member appointed by the President to represent the
Office of Homeland Security. The Under Secretary is required to consult
with the TSOB in establishing procedures for notifying the
Administrator 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. 49 U.S.C. 114(h)(2). The Under Secretary
has consulted with the TSOB regarding the procedures set forth in this
rule.
Discussion of the Final Rule
This final rule adds a new Sec. 1540.115 to 49 CFR part 1540,
entitled ``Threat assessments regarding citizens of the United States
holding or applying for FAA certificates, ratings, or authorizations.''
New Sec. 1540.115 sets forth the procedure that TSA follows when
notifying the FAA of certain individuals who pose a security threat.
Section 1540.115(a) provides that the notification procedure
applies when TSA has determined that an individual holding or applying
for an FAA airman certificate, rating, or authorization poses a
security threat. This rule applies to citizens of the United States. A
separate rule published in this Federal Register applies to aliens.
Section 1540.115(b) of the final rule sets forth the definitions of
certain terms used in the rule, some of which are discussed further
below.
Under Sec. 1540.115(c) of the final rule, an individual poses a
security threat if the individual is suspected of posing or is known to
pose: (1) A threat to transportation or national security; (2) a threat
of air piracy or terrorism; (3) a threat to airline or passenger
security; or (4) a threat to civil aviation security. This definition
is based on 49 U.S.C. 114(f) and (h), which authorize the Under
Secretary to identify and counter threats to the transportation system
and to communicate information to the FAA regarding individuals who
pose a security threat.
While the Under Secretary has been granted full discretion to
conduct threat assessments and act upon them, TSA recognizes that
notifying the FAA that an individual poses a security threat will have
significant consequences. Further, the individual may have information
that he or she may wish the Under Secretary to consider in making a
final decision. Accordingly, the procedure in this final rule provides
an individual with an opportunity to respond before the Under Secretary
makes a decision on the threat assessment.
Section 1540.115(d) of this final rule makes clear that the
individual may, if he or she so chooses, be represented by counsel, at
his or her own expense, in the proceedings described in the final rule.
Section 1540.115(e)(1) provides that if the Assistant Administrator
for Intelligence for TSA (Assistant Administrator) determines that an
individual poses a security threat, the Assistant Administrator will
serve upon that individual an Initial Notification of Threat Assessment
and serve it upon the FAA. This Initial Notification will form the
basis for the FAA to delay the issuance of or to suspend the
individual's certificate, rating, or authorization pending completion
of TSA's process.
Section 1540.115(e)(2) provides that not later than 15 calendar
days after the date of service of the Initial Notification, the
individual may serve a written request for copies of releasable
materials upon which the Initial Notification was based.
In this section ``date of service'' has the same meaning as the
definition of that term in the Rules of Practice in Transportation
Security Administration Civil Penalty Actions and TSA's Investigative
and Enforcement Procedures. See 49 CFR 1503.211(d). We note that, while
Sec. 1503.211(e) of the Rules of Practice also provides for additional
time for a party to act after service by mail, this rule incorporates
additional time in the stated time frames and no additional time will
be added for that purpose under this rule.
Section 1540.115(e)(3) provides that not later than 30 calendar
days, or such longer period as TSA may determine for good cause, after
TSA receives the individual's request for copies of the releasable
materials, TSA will respond.
Under Section 1540.115(e)(4), not later than 15 calendar days after
the date of service of the Initial Notification or the date of service
of TSA's response to the individual's request for releasable materials,
if such a request was made, the individual may serve a written reply to
the Initial Notification. The reply may include any information that
the individual believes the Under Secretary
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should consider in making a final decision.
Section 1540.115(e)(5) provides that not later than 30 calendar
days, or such longer period as TSA may determine for good cause, after
TSA receives the individual's reply, TSA serves a final decision in
accordance with paragraph (f) of this section.
TSA recognizes that this process provides shorter time periods for
the individual and TSA to act than in many administrative proceedings.
However, recognizing that the individual's certificate, rating, or
authorization will be delayed or suspended by the FAA during this
period, this procedure is designed to permit TSA to make a final
determination quickly, ensuring that the affected individual obtains a
prompt review of any issues that are raised. At the same time, TSA is
committed to providing adequate process to those individuals who are
subject to the procedure. Therefore, this rule provides for three
levels of administrative review of TSA's determination that an
individual poses a security threat. Unlike the procedure applicable to
alien holders of or applicants for certificates, this rule, which
applies only to citizens of the United States, provides for a separate
review by the Under Secretary. Only after the Under Secretary has
reviewed the relevant information and confirmed the two prior
determinations of the Assistant Administrator and the Deputy
Administrator, is TSA's determination final. This difference between
the two rules reflects the greater level of process due to citizens of
the United States under law. TSA believes this process provides
adequate and appropriate procedural safeguards for the interests of
United States citizens.
Under Sec. 1540.115(f), the Deputy Administrator of TSA reviews
the Initial Notification of Threat Assessment, the materials upon which
the Initial Notification was based, the individual's reply, if any, and
any other materials or information available to him. The Deputy
Administrator will undertake a de novo review to determine whether the
individual poses a security risk.
If the Deputy Administrator determines that the individual poses a
security threat, the Under Secretary reviews the Initial Notification,
the individual's reply, if any, and any other materials or information
available to him. If the Under Secretary determines that the individual
poses a security threat, TSA serves upon the individual a Final
Notification of Threat Assessment and serves a copy upon the FAA
Administrator. The Final Notification includes a statement that the
Under Secretary has personally reviewed the Initial Notification, the
individual's reply, if any, any other information or materials
available to him, and has determined that the individual poses a
security threat. This Final Notification will form the basis of the
FAA's revocation of, or denial of, the individual's certificate,
rating, or authorization.
If the Deputy Administrator does not determine that the individual
poses a security threat, or upon review, the Under Secretary does not
determine that the individual poses a security threat, TSA serves upon
the individual a Withdrawal of the Initial Notification and serves a
copy to the FAA.
Section 1540.115(g) provides that in connection with this section,
TSA does not disclose to the individual classified information, as
defined in Executive Order 12968 section 1.1(d), and TSA reserves the
right not to disclose any other information or material not warranting
disclosure or protected from disclosure under law, such as sensitive
security information (SSI), sensitive law enforcement and intelligence
information; sources, methods, means, and application of intelligence
techniques; and identities of confidential informants, undercover
operatives, and material witnesses.
In most cases, the determination that an individual poses a
security threat will be based, in large part or exclusively, on
classified national security information, unclassified information
designated as SSI, or other information that is protected from
disclosure by law, such as the Freedom of Information Act (FOIA). See 5
U.S.C 552(b)(1), (2), (7).
Classified national security information is information that the
President or another authorized Federal official has determined,
pursuant to Executive Order (EO) 12958, must be protected against
unauthorized disclosure in order to safeguard the security of American
citizens, the country's democratic institutions, and America's
participation within the community of nations. See E.O. 12958 (60 FR
19825, April 20, 1995). E.O. 12968 prohibits Federal employees from
disclosing classified information to individuals who have not been
cleared to have access to such information under the requirements of
that EO. See E.O. 12968 sec. 3.2(a), 6.2(a)(1) (60 FR 40245, Aug. 7,
1995). If the Assistant Administrator has determined that an individual
who is the subject of a threat assessment proceeding poses a threat to
transportation security, that individual will not be able to obtain a
clearance to have access to classified national security information,
and TSA has no authority to release such information to that
individual.
The denial of access to classified information under these
circumstances is consistent with the treatment of classified
information under the FOIA, which specifically exempts such information
from the general requirement under FOIA that all government documents
are subject to public disclosure. See 5 U.S.C. 522(b)(1).
SSI is unclassified information that is subject to disclosure
limitations under statute and TSA regulations. See 49 U.S.C. 114(s); 49
CFR part 1520. Under 49 U.S.C. 114(s), the Under Secretary may
designate categories of information as SSI if release of the
information would be detrimental to the security of transportation. The
SSI designation allows TSA to limit disclosure of this information to
people with a need to know in order to carry out regulatory security
duties. See 49 CFR 1520.5(b).
Among the categories of information that the Under Secretary has
defined as SSI by regulation is information concerning threats against
transportation. See 49 CFR 1520.7(i). Thus, information that TSA
obtains indicating that an individual poses a security threat,
including the source of such information and the methods through which
the information was obtained, will commonly be SSI or classified
information. The purpose of designating such information as SSI is to
ensure that those who seek to do harm to the transportation system and
their associates and supporters do not obtain access to information
that will enable them to evade the government's efforts to detect and
prevent their activities. Disclosure of this information, especially to
an individual specifically suspected of posing a threat to the aviation
system, is precisely the type of harm that Congress sought to avoid by
authorizing the Under Secretary to define and protect SSI.
Other types of information also are protected from disclosure by
law due to their sensitivity in law enforcement and intelligence. In
some instances, the release of information about a particular
individual or his supporters or associates could have a substantial
adverse impact on security matters. The release of the identities or
other information regarding individuals related to a security threat
determination by TSA could jeopardize sources and methods of the
intelligence community, the identities of confidential sources, and
techniques and procedures for law enforcement investigations or
prosecution. See 5
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U.S.C 552(b)(7)(D), (E). Release of such information also could have a
substantial adverse impact on ongoing investigations being conducted by
federal law enforcement agencies, possibly giving a terrorist
organization or other group a roadmap of the course and progress of an
investigation. In certain instances, release of information could alert
a terrorist's coconspirators to the extent of the federal investigation
and the imminence of their own detection, thus provoking flight. Those
without access to information about the progress of federal
investigations are not in a meaningful position and therefore cannot
make judgments about the risk of release of information about that
investigation that TSA has relied upon in making a security threat
determination.
This intelligence ``mosaic'' dilemma has been well recognized by
the courts in concluding both that they are ill-suited to second guess
the Executive Branch's determination and that seemingly innocuous
production should not be made. The business of foreign intelligence
gathering in this age of computer technology is more akin to the
construction of a mosaic than it is to the management of a cloak-and-
dagger affair. Thousands of pieces of seemingly innocuous information
can be analyzed and fitted into place to reveal with startling clarity
how the unseen whole must operate. The Fourth Circuit Court of Appeals
has observed:
The significance of one item of information may frequently
depend upon knowledge of many other items of information. What may
seem trivial to the uninformed, may appear of great moment to one
who has a broad view of the scene and may put the questioned item of
information in its proper context. The courts, of course are ill-
equipped to become sufficiently steeped in foreign intelligence
matters to serve effectively in the review of secrecy
classifications in this area.
United States v. Marchetti, 466 F.2d 1309, 1318 (4th Cir.), cert.
denied, 409 U.S. 1063 (1972). Halkin v. Helms, 598 F. 2d 1 (D.C. Cir
1978). See also e.g., Kasza v. Browner, 133 F. 3d 1159, 1166 (9th Cir.
1998) (Quoting Halkin); J Roderick MacArthur Foundation v. Federal
Bureau of Investigation, 102 F.3d 600, 604 (D.C. Cir 1996) (``As we
have said before, ``Intelligence gathering is akin to the construction
of a mosaic' ''(citation omitted)).
For the reasons discussed above, TSA will not provide to the
individual under these procedures any classified information, and TSA
reserves the right not to disclose SSI or other sensitive material not
warranting disclosure or protected from disclosure under law.
Good Cause for Immediate Adoption
This action is being taken without providing the opportunity for
notice and comment, and it provides for immediate effectiveness upon
adoption. The Under Secretary has determined this action is necessary
to prevent imminent hazard to aircraft, persons, and property within
the United States. TSA, after consultation with the FAA, has determined
that this action is necessary to minimize security threats and
potential security vulnerabilities to the fullest extent possible. The
FAA, TSA, and other federal security organizations have been concerned
about the potential use of aircraft to carry out terrorist acts in the
United States since September 11. This rule codifies the fundamental
and inherently obvious principle that a person who TSA determines poses
a security threat should not hold an FAA-issued airman certificate.
The Under Secretary finds that notice and comment are unnecessary,
impracticable, and contrary to the public interest, pursuant to section
553 of the Administrative Procedure Act (APA). Section 553(b) of the
APA permits an agency to forgo notice and comment rulemaking when ``the
agency for good cause finds * * * that notice and public procedures
thereon are impracticable, unnecessary, or contrary to the public
interest.'' The use of notice and comment prior to issuance of this
rule could delay the ability of TSA and the FAA to take effective
action to keep persons found by TSA to pose a security threat from
holding an airman certificate. Further, the Under Secretary finds that
good cause exists under 5 U.S.C. 553(d) for making this final rule
effective immediately upon publication. This action is necessary to
prevent a possible imminent hazard to aircraft, persons, and property
within the United States.
Economic Analyses
Changes to Federal regulations must undergo several economic
analyses. First, E.O. 12866 directs each Federal agency to propose or
adopt a regulation only upon a reasoned determination that the benefits
of the intended regulation justify its costs. Second, the Regulatory
Flexibility Act of 1980 requires agencies to analyze the economic
impact of regulatory changes on small entities. Third, the Office of
Management and Budget directs agencies to assess the effect of
regulatory changes on international trade. Fourth, the Unfunded
Mandates Reform Act of 1995 (Pub. L. 104-4) requires agencies to
prepare a written assessment of the costs, benefits, and other effects
of proposed or final rules that include a Federal mandate likely to
result in the expenditure by State, local, or tribal governments, in
the aggregate, or by the private sector, of $100 million or more
annually (adjusted for inflation).
This regulatory evaluation applies to both this rule, which applies
to U.S. citizens, and to the corresponding rule, which applies to
aliens. While, to date, all individuals whom the Under Secretary has
assessed as threats have been aliens, TSA is not able to predict which
individuals, who may be subject to TSA threat assessments, may be
citizens of the United States or aliens in the future. This regulatory
evaluation examines the costs and benefits of TSA notifying the FAA of
its assessment that an individual holding or applying for an FAA
certificate, rating, or authorization poses a security threat. TSA is
taking this action in an ongoing effort to improve national security.
The procedure of notification and action taken by the FAA and TSA could
prevent aircraft, persons, and property in the United States from
imminent peril by the denial or revocation of FAA certificates,
ratings, or authorizations of those individuals who pose a security
threat.
The Assistant Administrator for Intelligence makes a determination
regarding an individual posing a security threat who also holds or is
applying for an FAA certificate, rating, or authorization. The
Assistant Administrator then issues an Initial Notification to the FAA
Administrator and the subject individual. At that time, the individual
has the opportunity to act in three ways: (1) Reply and request the
materials that the determination is based on; (2) reply without
requesting materials; or (3) do nothing. The Deputy Administrator
reviews the Initial Notification, and the Under Secretary makes the
final review. TSA issues the Final Notification or a Withdrawal of
Initial Notification to the FAA Administrator and the subject
individual. It is the FAA Administrator who will take action and deny
or revoke the FAA certificate, rating, or authorization if the Under
Secretary determines that the individual poses a security threat. There
are over 3.75 million holders of airmen certificates, ratings, or
authorizations, who are subject to this final rule.
TSA has determined that this rule is not, in economic impact, a
``significant regulatory action'' as defined in E.O. 12866, Regulatory
Planning and Review, but due to the potential public interest in this
rule it is considered to be a ``significant regulatory action'' under
[[Page 3760]]
that Executive Order and under the DOT Regulatory Policies and
Procedures. TSA determines this final rule does not have a significant
economic impact on a substantial number of small entities. Regarding
paperwork reduction, there are no new requirements for the collection
of information associated with this rule. In terms of international
trade, the rule will neither impose a competitive trade disadvantage to
U.S. aircraft operators operating overseas nor foreign aircraft
operators deplaning or enplaning passengers within the United States.
In terms of the Unfunded Mandates Act, the rule will not contain any
Federal intergovernmental mandates or private sector mandates.
Introduction and Background
ATSA (49 U.S.C. 114) makes TSA responsible for security in all
modes of transportation regulated by DOT, including civil aviation.
Additionally, ATSA transferred the duty of ensuring civil aviation
security from the FAA to TSA. To carry out its security mission, TSA
must assess intelligence and other information in order to identify
individuals who pose a threat to security. In doing so, TSA must
coordinate with other federal agencies, including the FAA, to address
these threats. 49 U.S.C. 114(f)(13) specifically requires TSA to work
with the FAA Administrator to take actions that may affect aviation
safety or air carrier operations.
While performing the duty of ensuring civil aviation security, TSA
receives information from other agencies and other sources identifying
particular individuals who pose security threats. In some cases, these
individuals hold airman certificates, ratings, or authorizations, such
as pilot or mechanic certificates, ratings, or authorizations that were
issued by the FAA in accordance with 49 U.S.C. Chapter 447. These
individuals who pose security threats and hold FAA certificates,
ratings, or authorizations are in positions to disrupt the civil
aviation transportation system and harm the public.
In ATSA, Congress specifically required the Under Secretary to
establish procedures to notify the FAA Administrator, among others, of
the identities of individuals who are known to pose or suspected of
posing, a threat of air piracy or terrorism or a threat to airline or
passenger safety. 49 U.S.C. 114(h)(2). Additionally, in 49 U.S.C.
44703(g), as amended by ATSA section 129, Congress required the FAA
Administrator to make modifications to the system used for issuing
aviation certificates, ratings, or authorizations in order to make the
system more effective in combating acts of terrorism.
The Under Secretary has determined that TSA must notify the FAA
when TSA's threat assessment reveals an individual who holds an FAA
certificate, rating, or authorization or is an applicant for such
certification poses a security threat. This determination is based on
the Congressional authorization for the Under Secretary to identify and
counter threats to transportation security and Congress's express
direction that TSA work with the FAA Administrator in taking actions
that may affect aviation security or air carrier operations and to
communicate information to the FAA regarding individuals who pose a
security threat.
Cost of Compliance
TSA has performed an expected cost-benefit analysis for the final
rule. To date, from a pool of approximately 1.35 million holders of
airmen certificates issued by the FAA in the last ten years, TSA has
identified 11 persons who are security threats. Estimating the number
of FAA certificates that will be issued in the next ten years, from
2003 to 2012, TSA has found that an estimated nine persons out of an
estimated 1.11 million airmen certificates over the ten years will be
flagged or at least one person per year. If, however, the estimates are
off by as much as a factor of ten, TSA estimates that approximately 100
persons may be impacted over the ten-year period. This estimates
equates to ten persons per year over the ten-year period.
This rule allows an impacted party to respond to the TSA-issued
Initial Notification in order to refute the finding of the security
threat assessment. To date, seven individuals or 63.64 percent from the
11 identified are in the process of responding to a threat assessment
notice from TSA. Assuming this percentage will remain relatively
constant, TSA calculated a minimum and maximum number of impacted
persons who will respond ranging from one person to six persons per
year. Using the value of passenger time per hour for general aviation
from ``Economic Values for Valuation of Federal Aviation Administration
Investment and Regulatory Programs (Values)'' (FAA-APO-98-8) as a proxy
for the wage rate of the impacted party, TSA estimated the approximate
costs to respond to an Initial Notification without legal counsel to be
$31.10 per hour in 2001 dollars. TSA assumed it would take an impacted
person five hours to respond to the Initial Notification via a written
letter requesting releasable materials upon which the decision was
made, review any TSA materials, and write a response based upon these
materials. An additional $20 was added to cover any costs of postage,
copying, and stationery costs. Therefore, the total estimated cost for
an individual to respond to TSA's Initial Notification equals
approximately $176 per person in 2001 dollars. If an individual chooses
to hire legal counsel, the cost rises to approximately $1000 to $1500
based on five hours legal time at between $200-300 per hour.
TSA projected the costs of this rule for impacted parties over the
ten-year period of 2003-2012. The range of one person refuting per year
without legal counsel to six persons per year refuting with legal
counsel was used for analysis. Costs were discounted over the ten-year
period using the standard seven percent discount rate as dictated by
the Office of Management and Budget (Circular A-94). The total costs
for this rule projected over the next ten years ranges from $1,755 (if
one person per year responds on his/her own without legal counsel) to
$71,735 (if six persons per year hire legal counsel to respond to
findings) in 2001 discounted dollars.
Analysis of Benefits
This rule is intended to enhance aviation security. Congress has
mandated that the Under Secretary identify and counter threats to the
transportation system and national security, as well as, work with the
FAA Administrator to take actions that may affect aviation safety or
air carrier operations and to communicate information to the FAA
regarding individuals who pose a security threat. The primary benefit
of the rule will be increased protection to Americans and others from
acts of terrorism. The changes envisioned in this rule are an integral
part of the total program needed to prevent a criminal or terrorist
incident in the future.
Since the mid-1980s, the major goals of aviation security have been
to prevent bombing and sabotage incidents. The individuals covered by
this rule hold airman certificates, ratings, or authorizations, such as
pilot and mechanic certificates, ratings, or authorizations, issued by
the FAA under 49 U.S.C. Chapter 447. These certificates, ratings, or
authorizations allow these individuals access to aircraft while in
maintenance and repair, to fly aircraft, or to operate aircraft
navigational equipment. These individuals are in unique positions to
disrupt the civil air transportation system and harm the public through
acts of air piracy, sabotage, or misuse of
[[Page 3761]]
the aircraft. As such, these individuals could represent a definitive
threat to security.
Comparison of Costs and Benefits
It is estimated this rule will have insignificant incurred costs
when compared to the potential benefits. The potential benefits are
huge in the number of lives and amount of property within the United
States saved from a catastrophic terrorist act by this rule. As such,
the small amount of costs and the large positive value of the cost-
benefit analysis support the rule as cost-beneficial.
Regulatory Flexibility Act
The Regulatory Flexibility Act of 1980 (RFA) established ``as a
principle of regulatory issuance that agencies shall endeavor,
consistent with the objective of the rule and of applicable statutes,
to fit regulatory and informational requirements to the scale of the
businesses, organizations, and governmental jurisdictions subject to
regulation.'' To achieve that principle, the RFA requires agencies to
solicit and consider flexible regulatory proposals and to explain the
rationale for their actions. The RFA covers a wide-range of small
entities, including small businesses, not-for-profit organizations and
small governmental jurisdictions.
Agencies must perform a review to determine whether a proposed or
final rule will have a significant economic impact on a substantial
number of small entities. If the determination is that it will, the
agency must prepare a regulatory flexibility analysis as described in
the RFA. However, if an agency determines that a proposed or final rule
is not expected to have a significant economic impact on a substantial
number of small entities, section 605(b) of the RFA provides that the
head of the agency may so certify and a regulatory flexibility analysis
is not required. The certification must include a statement providing
the factual basis for this determination, and the reasoning should be
clear.
TSA has determined that this rule will not have a significant
economic impact on a substantial number of small entities, pursuant to
the RFA, 5 U.S.C. 605(b). This determination is based on the fact that
the rule affects only individuals, not entities. Additionally, based on
the comparison of costs and benefits set forth above, the costs
incurred by individuals will be insignificant compared to potential
benefits of the rule. Therefore, pursuant to the RFA, 5 U.S.C. 605(b),
TSA certifies that this rule will not have a significant impact on a
substantial number of small entities. The FAA has also issued a final
rule regarding denial and revocation of FAA-issued certificates,
ratings, or authorizations and has determined that such denial or
revocation will not have a significant economic impact on a substantial
number of small entities.
Paperwork Reduction Act
The Paperwork Reduction Act of 1995 (44 U.S.C. 3507(d)) requires
that the TSA consider the impact of paperwork and other information
collection burdens imposed on the public. We have determined that there
are no new requirements for information collection associated with this
final rule. An agency may not conduct or sponsor and a person is not
required to respond to a collection of information unless it displays a
current valid Office of Management and Budget (OMB) control number.
International Trade Impact Statement
The Trade Agreement Act of 1979 prohibits Federal agencies from
engaging in any standards or related activities that create unnecessary
obstacles to the foreign commerce of the United States. Legitimate
domestic objectives, such as safety and security, are not considered
unnecessary obstacles. The statute also requires consideration of
international standards, and where appropriate, that they be the basis
for U.S. standards. The TSA has assessed the potential effect of this
rulemaking and has determined that it will have only a domestic impact
and, therefore, no effect on any trade-sensitive activity.
Unfunded Mandates Determination
The Unfunded Mandates Reform Act of 1995 (the Act), enacted as Pub.
L. 104-4 on March 22, 1995, is intended, among other things, to curb
the practice of imposing unfunded Federal mandates on State, local, and
tribal governments.
Title II of the Act requires each Federal agency to prepare a
written statement assessing the effects of any Federal mandate in a
proposed or final agency rule that may result in a $100 million or more
expenditure (adjusted annually for inflation) in any one year by State,
local, and tribal governments, in the aggregate, or by the private
sector; such a mandate is deemed to be a ``significant regulatory
action.''
This final rule does not contain such a mandate. Therefore, the
requirements of Title II of the Unfunded Mandates Reform Act of 1995 do
not apply.
Executive Order 13132, Federalism
TSA has analyzed this final rule under the principles and criteria
of Executive Order 13132, Federalism. We determined that this action
will not have a substantial direct effect on the States, or the
relationship between the national Government and the States, or on the
distribution of power and responsibilities among the various levels of
government, and therefore does not have federalism implications.
Environmental Analysis
TSA has reviewed this action for purposes of the National
Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4347) and has
determined that this action will not have a significant effect on the
human environment.
Energy Impact
The energy impact of this final rule has been assessed in
accordance with the Energy Policy and Conservation Act (EPCA) Pub. L.
94-163, as amended (42 U.S.C. 6362). We have determined that this
rulemaking is not a major regulatory action under the provisions of the
EPCA.
List of Subjects in 49 CFR Part 1540
Air carriers, Aircraft, Airports, Law enforcement officers,
Reporting and recordkeeping requirements, Security measures.
The Amendment
In consideration of the foregoing, the Transportation Security
Administration amends Chapter XII of Title 49, Code of Federal
Regulations, as follows:
PART 1540--CIVIL AVIATION SECURITY: GENERAL RULES
1. The authority citation for part 1540 continues to read as
follows:
Authority: 49 U.S.C. 114, 5103, 40119, 44901-44907, 44913-44914,
44916-44918, 44935-44936, 44942, 46105.
2. Amend part 1540 by adding Sec. 1540.115 to read as follows:
Sec. 1540.115 Threat assessments regarding citizens of the United
States holding or applying for FAA certificates, ratings, or
authorizations.
(a) Applicability. This section applies when TSA has determined
that an individual who is a United States citizen and who holds, or is
applying for, an airman certificate, rating, or authorization issued by
the Administrator, poses a security threat.
(b) Definitions. The following terms apply in this section:
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Assistant Administrator means the Assistant Administrator for
Intelligence for TSA.
Date of service means--
(1) The date of personal delivery in the case of personal service;
(2) The mailing date shown on the certificate of service;
(3) The date shown on the postmark if there is no certificate of
service; or
(4) Another mailing date shown by other evidence if there is no
certificate of service or postmark.
Deputy Administrator means the officer next in rank below the Under
Secretary of Transportation for Security.
FAA Administrator means the Administrator of the Federal Aviation
Administration.
Individual means an individual whom TSA determines poses a security
threat.
Under Secretary means the Under Secretary of Transportation for
Security.
(c) Security threat. An individual poses a security threat when the
individual is suspected of posing, or is known to pose--
(1) A threat to transportation or national security;
(2) A threat of air piracy or terrorism;
(3) A threat to airline or passenger security; or
(4) A threat to civil aviation security.
(d) Representation by counsel. The individual may, if he or she so
chooses, be represented by counsel at his or her own expense.
(e) Initial Notification of Threat Assessment. (1) Issuance. If the
Assistant Administrator determines that an individual poses a security
threat, the Assistant Administrator serves upon the individual an
Initial Notification of Threat Assessment and serves the determination
upon the FAA Administrator. The Initial Notification includes--
(i) A statement that the Assistant Administrator personally has
reviewed the materials upon which the Initial Notification was based;
and
(ii) A statement that the Assistant Administrator has determined
that the individual poses a security threat.
(2) Request for Materials. Not later than 15 calendar days after
the date of service of the Initial Notification, the individual may
serve a written request for copies of the releasable materials upon
which the Initial Notification was based.
(3) TSA response. Not later than 30 calendar days, or such longer
period as TSA may determine for good cause, after receiving the
individual's request for copies of the releasable materials upon which
the Initial Notification was based, TSA serves a response. TSA will not
include in its response any classified information or other information
described in paragraph (g) of this section.
(4) Reply. The individual may serve upon TSA a written reply to the
Initial Notification of Threat Assessment not later than 15 calendar
days after the date of service of the Initial Notification, or the date
of service of TSA's response to the individual's request under
paragraph (e)(2) if such a request was served. The reply may include
any information that the individual believes TSA should consider in
reviewing the basis for the Initial Notification.
(5) TSA final determination. Not later than 30 calendar days, or
such longer period as TSA may determine for good cause, after TSA
receives the individual's reply, TSA serves a final determination in
accordance with paragraph (f) of this section.
(f) Final Notification of Threat Assessment. (1) In general. The
Deputy Administrator reviews the Initial Notification, the materials
upon which the Initial Notification was based, the individual's reply,
if any, and any other materials or information available to him.
(2) Review and Issuance of Final Notification. If the Deputy
Administrator determines that the individual poses a security threat,
the Under Secretary reviews the Initial Notification, the materials
upon which the Initial Notification was based, the individual's reply,
if any, and any other materials or information available to him. If the
Under Secretary determines that the individual poses a security threat,
the Under Secretary serves upon the individual a Final Notification of
Threat Assessment and serves the determination upon the FAA
Administrator. The Final Notification includes a statement that the
Under Secretary personally has reviewed the Initial Notification, the
individual's reply, if any, and any other materials or information
available to him, and has determined that the individual poses a
security threat.
(3) Withdrawal of Initial Notification. If the Deputy Administrator
does not determine that the individual poses a security threat, or upon
review, the Under Secretary does not determine that the individual
poses a security threat, TSA serves upon the individual a Withdrawal of
the Initial Notification and provides a copy of the Withdrawal to the
FAA Administrator.
(g) Nondisclosure of certain information. In connection with the
procedures under this section, TSA does not disclose to the individual
classified information, as defined in Executive Order 12968 section
1.1(d), and reserves the right not to disclose any other information or
material not warranting disclosure or protected from disclosure under
law.
Issued in Washington, DC on January 21, 2003.
J.M. Loy,
Under Secretary of Transportation for Security.
[FR Doc. 03-1682 Filed 1-22-03; 10:09 am]
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