May 6, 2004 - The pilot insecurity rule has lost its bite - at least for now. The Transportation Security Administration has suspended enforcement of the rule that allowed it to revoke a pilot's certificate for alleged security risks.
AOPA had opposed the rule from the day it was imposed because of an onerous provision that only allowed a pilot to appeal a revocation to TSA - the very agency that had ordered the revocation in the first place! Thanks to an intense lobbying effort by AOPA on Capitol Hill, Congress ordered TSA to come up with a new appeal process. Now the agency has said it will not enforce the rule against U.S. citizens or legal resident aliens until the new process is in place.
"This little bit of common sense has been a long time coming," said AOPA President Phil Boyer. "TSA has to have the tools to protect our national security, but at the same time, pilots' constitutional right to due process must be guaranteed."
Under the original provision, issued in January 2003, as a direct final rule with no public comment or debate, TSA could instruct the FAA to revoke a pilot's certificate based on a TSA assessment that the pilot posed a national security threat. The pilot's only avenue of appeal was to the TSA. To make matters worse, because the threat assessment may have been based on intelligence information, the pilot would be denied access to the evidence needed to prepare a defense against the allegations.
In addition to working on Capitol Hill for a more equitable process, AOPA pressed its case directly with TSA. Boyer met with both Adm. James Loy, administrator at TSA at the time the rule was imposed, and his successor, Adm. David Stone. Boyer followed his initial meeting with Stone with a letter, writing that "while AOPA fully supports the goal of combating terrorism and has worked closely with the TSA in this effort, this should not result in undermining one of the most foundational elements of the nation by suspending the rights of U.S. citizens who hold pilot certificates to 'due process.'"
In December 2003, President Bush signed the FAA Reauthorization Bill, which included a provision directing TSA to develop a new process that allowed a pilot to appeal the revocation to an impartial third party.
TSA's decision does not do away with the rule that allows revocation of an airman certificate. But it does ensure that, once the new procedures are in place, pilots will have access to due process should TSA implicate them.