AOPA has put its objections to the "pilot insecurity" rules in a formal letter to Transportation Security Administration chief Adm. James M. Loy. Following up on a phone call between AOPA President Phil Boyer and Adm. Loy, Boyer wrote February 19, "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.'"
AOPA asked TSA to suspend enforcement of the new rules to allow for public comment. The association noted that the FAA has always had the authority to revoke an airman's certificate on issues of national security, but that prior to the new TSA rules, that process had included specific procedural rights and an appeal to an impartial adjudicator.
TSA and the FAA issued the rules January 24 without prior public notice or comment. The rules permit TSA to declare a pilot a security risk based on secret information and force the FAA to revoke the pilot's certificate. The only appeal is to TSA.
AOPA recommended that the National Transportation Safety Board (NTSB) be given the responsibility for the adjudication of an FAA certificate action that is based on a TSA security threat determination. "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," Boyer wrote Adm. Loy.
AOPA also said that it appeared the TSA rules went beyond the scope of the authority granted by Congress. "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 airmen all of the traditional due process protections historically provided in the Federal Transportation Code," said Boyer.
He also said that the rules do not provide any criteria that TSA will use to determine if a pilot is a security threat. That's necessary information, Boyer said, for a pilot to be able to refute charges against him.
Boyer offered to continue working with TSA to "meet the intent of the rulemaking action...in a manner that protects the interests of America's law-abiding and patriotic U.S. citizens."
[See also AOPA's regulatory brief and the final rules: Ineligibility for an Airman Certificate Based on Security Grounds ( text | PDF); Threat Assessments Regarding Alien Holders of, and Applicants for, FAA Certificates ( text | PDF); and Threat Assessments Regarding Citizens of the United States Who Hold or Apply for FAA Certificates ( text | PDF).]