AOPA continued its opposition to the Transportation Security Administration's "pilot insecurity" rules by filing its formal comments on the rules yesterday.
"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," AOPA President Phil Boyer wrote. "We believe it undermines one of the most foundational elements of the United States Constitution by suspending 'due process' rights of U.S. citizens who hold pilot certificates."
AOPA's biggest concern is the lack of an independent review of TSA's threat determination. The rules permit TSA to declare an airman a security risk based on secret information and force the FAA to revoke the airman's certificate. The only appeal is to TSA.
"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," AOPA said.
AOPA had told TSA in February that the NTSB (which already adjudicates FAA certificate actions) should provide the necessary third-party review. In a March 14 response, TSA chief Adm. James M. Loy said that NTSB's expertise was in aviation safety, not in issues of national security. And in matters of security, the security agency had to have the final word.
Adm. Loy did acknowledge that another level of review might be appropriate, telling AOPA that "I have opened dialogue with the Department of Homeland Security to seek a final appeal review level there." (TSA is now part of the Department of Homeland Security.)
That's not enough for AOPA.
In its comments on the rules, AOPA said that, "while we are encouraged by TSA's exploration of the third-party review, the Homeland Security organization is not a true third party and AOPA recommends proceeding with a hearing before a Department of Transportation administrative law judge."
An appeals process to DOT would allow for a discovery process, the presentation of witnesses and documentary evidence, and legal argument. AOPA contends that these procedures can be adapted and adopted to include the review of agency determinations that an individual poses a security threat to aviation. AOPA noted that TSA already has procedures in place that allow for a trial-type hearing with protections against public disclosure of sensitive security information.
"Because of the pilot concerns over the rules, AOPA strongly encourages TSA to address these and other comments in a timely manner," Boyer said. "We believe that a third-party review must be added and seek immediate action on this issue."