[Federal Register Volume 68, Number 16 (Friday, January 24, 2003)]
[Rules and Regulations]
[Pages 3772-3775]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-1681]



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Part VII





Department of Transportation





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14 CFR Parts 61, et al.



Ineligibility for an Airman Certificate Based on Security Grounds; 
Final Rule

  Federal Register / Vol. 68, No. 16 / Friday, January 24, 2003 / Rules 
and Regulations  

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DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration

14 CFR Parts 61, 63, and 65

[Docket No.: FAA-2003-14293; Amendment Nos. 61-108, 63-32, 65-44]
RIN 2120-AH84


Ineligibility for an Airman Certificate Based on Security Grounds

AGENCY: Federal Aviation Administration (FAA), DOT.

ACTION: Final rule; request for comments.

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SUMMARY: This final rule expressly makes a person ineligible to hold 
FAA-issued airman certificates if the Transportation Security 
Administration notifies the FAA in writing that the person poses a 
security threat. This action is intended to reduce the opportunity for 
persons to carry out terrorist acts in the aviation environment.

DATES: Effective 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. You must identify the docket number FAA-2003-
14293 at the beginning of your comments, and you should submit two 
copies of your comments. If you wish to receive confirmation that the 
FAA 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. You may also review public dockets 
on the Internet at http://dms.dot.gov.

FOR FURTHER INFORMATION CONTACT: Peter J. Lynch, Enforcement Division, 
AGC-300, Office of the Chief Counsel, Federal Aviation Administration, 
800 Independence Avenue, SW., Washington, DC 20591; Telephone No. (202) 
267-3137.

SUPPLEMENTARY INFORMATION:

Comments Invited

    This final rule is being adopted without prior notice and prior 
public comment. The Regulatory Policies and Procedures of the 
Department of Transportation (DOT) (44 FR 1134; Feb 26, 1979) provide 
that, to the maximum extent possible, operating administrations for the 
DOT should provide an opportunity for public comment on regulations 
issued without notice. Accordingly, interested persons are invited to 
participate in the rulemaking by submitting written data, views, or 
arguments. Comments relating to the environmental, energy, federalism, 
or economic impact that might result from these amendments also are 
invited. Comments must include the docket number or amendment number 
and must be submitted in duplicate to the address above. All comments 
received, as well as a report summarizing each substantive public 
contact with FAA personnel concerning this rulemaking, will be filed in 
the public docket. The docket is available for public inspection before 
and after the comment closing date.
    The FAA will consider all comments received on or before the 
closing date for comments. Late-filed comments will be considered to 
the extent practicable. The final rule may be amended in light of the 
comments received.

Availability of Rulemaking Documents

    You can get an electronic copy using the Internet by taking the 
following steps:
    (1) Go to the search function of the Department of Transportation's 
electronic Docket Management System (DMS) Web page (http://dms.dot.gov/
search).
    (2) On the search page type in the last four digits of the Docket 
number shown at the beginning of this notice. Click on ``search.''
    (3) On the next page, which contains the Docket summary information 
for the Docket you selected, click on the document number for the item 
you wish to view.
    You can also get an electronic copy using the Internet through the 
Office of Rulemaking's Web page at http://www.faa.gov/avr/armhome.htm 
or the Government Printing Office's Web page at http://
www.access.gpo.gov/su--docs/aces/aces140.html.
    You can also get a copy by submitting a request to the Federal 
Aviation Administration, Office of Rulemaking, ARM-1, 800 Independence 
Avenue SW., Washington, DC 20591, or by calling (202) 267-9680. Make 
sure to identify the amendment number or docket number of this 
rulemaking.

Small Business Regulatory Enforcement Fairness Act

    The Small Business Regulatory Enforcement Fairness Act (SBREFA) of 
1996 requires the FAA to comply with small entity requests for 
information or advice about compliance with statutes and regulations 
within its jurisdiction. Therefore, any small entity that has a 
question regarding this document may contact their local FAA official, 
or the person listed under FOR FURTHER INFORMATION CONTACT. You can 
find out more about SBREFA on the Internet at our site, http://
www.faa.gov/avr/arm/sbrefa.htm. For more information on SBREFA, e-mail 
us [email protected].

Background

    In response to the tragic events of September 11, 2001, Congress 
enacted and the President signed the Aviation and Transportation 
Security Act (ATSA), Public Law 107-71. This law created the 
Transportation Security Administration (TSA) under the direction of the 
Under Secretary of Transportation for Security. The Under Secretary is 
charged with responsibility for civil aviation security as well as 
security in other modes of transportation. Among other 
responsibilities, the Under Secretary is to receive, assess, and 
distribute intelligence information related to transportation security 
and to assess threats to transportation. The ATSA also directs the 
Under Secretary to establish procedures to notify the FAA Administrator 
of the identity of persons known to pose, or suspected of posing, a 
risk of air piracy or terrorism or a threat to airline or passenger 
safety.
    The ATSA directs the Administrator to make modifications to the 
system for issuing airman certification to make the system more 
effective in serving the needs of officials responsible for enforcing 
laws related to combating acts of terrorism.
    The Under Secretary receives information from intelligence sources 
that identify specific individuals who pose a security risk. In some 
cases, these individuals hold airman certificates issued by the FAA. On 
August 14, 2002, the Under Secretary advised the Administrator of 11 
such individuals and asked the Administrator to revoke the airman 
certificates held by them. On August 20, the FAA took the requested 
action by issuing emergency orders of revocation. These orders became 
effective immediately.
    By rulemakings published today in the Federal Register, the TSA has 
put in place processes for notifying an

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individual that he or she has been determined to pose a security threat 
and to advise the FAA of its determination. One process applies to 
citizens of the United States, the other to aliens. Under both 
procedures, the individual is served with an Initial Notification of 
Threat Assessment when the TSA's Assistant Administrator for 
Intelligence has concluded that the individual poses a security threat. 
The individual may respond in writing to this notification and provide 
any information the individual believes the TSA should consider. In the 
case of an alien, if the TSA's Deputy Administrator finds that the 
person does pose a security threat, he or she issues a Final 
Notification of Threat Assessment. If the Deputy Administrator does not 
determine that the individual poses a security threat, he or she issues 
a Withdrawal of Initial Notification. In the case of a U.S. citizen, 
the Under Secretary will also review the matter before a Final 
Notification of Threat Assessment is issued. If the Under Secretary 
determines that the individual poses a security threat, the Under 
Secretary issues a Final Notification of Threat Assessment. If the 
Deputy Administrator or Under Secretary does not find that the person 
poses a threat, the TSA issues a Withdrawal of Initial Notification. At 
the time the TSA issues its notifications, the FAA is advised of the 
TSA's determinations with regard to individuals who hold or are 
applying for an airman certificate.
    Once the TSA has determined that a person poses a security threat, 
that person should not hold an airman certificate authorizing him or 
her to be in a position that could be used to take actions that are 
contrary to civil aviation security and, therefore, safety in air 
commerce. Airmen are in a position to exercise the privileges of their 
certificates in support of terrorist activities. For example, pilots 
could drop chemical or biological agents from an aircraft or, as the 
events of September 11 demonstrated, crash aircraft into buildings. 
Mechanics could sabotage aircraft, and flight instructors could teach 
terrorists how to operate aircraft. While a person might attempt to 
undertake such actions even if he or she does not hold an airman 
certificate, taking action to deny, suspend, or revoke airman 
certification is intended to make it more difficult to do so. In any 
event, persons determined by the TSA to pose a security threat are 
simply unqualified to hold airman certificates.
    The FAA is adding a section to 14 CFR parts 61, 63, and 65 to 
expressly make individuals who pose a security threat as determined by 
the TSA ineligible to hold certificates, ratings, and authorizations 
issued under those parts. This ineligibility means that the FAA will 
not issue a certificate, rating, or authorization to any applicant who 
the TSA advises the FAA poses a security threat. If the TSA issues an 
Initial Notification of Threat Assessment to an applicant, the FAA will 
hold in abeyance the application pending the outcome of the TSA's final 
threat assessment review. If an individual is issued a Final 
Notification of Threat Assessment, the FAA will deny an application for 
any airman certificate, rating, or authorization.
    With regard to certificates already issued, the FAA will suspend an 
individual's airman certificates after receiving the Initial 
Notification of Threat Assessment from the TSA. Suspension is 
appropriate in this circumstance, because the TSA's initial assessment 
that an individual poses a security threat is still subject to review 
by the TSA's Deputy Administrator, and, for U.S. citizens, the Under 
Secretary, and may be reversed. If a Final Notification of Threat 
Assessment is issued, the FAA will revoke the certificates; if an 
Initial Notification is withdrawn, the FAA will withdraw its 
certificate suspension.
    The eligibility standards adopted in this rulemaking rely on the 
threat assessments made by the TSA. This reliance is based on the broad 
statutory authority and responsibility that the ATSA placed in the 
Under Secretary with regard to intelligence information and threat 
assessments.

The Rule Change

    The FAA is adding a new section, Sec.  61.18, Security 
Disqualification, to 14 CFR part 61. This rule states that a person is 
not eligible to hold a certificate, rating, or authorization issued 
under part 61 when the TSA has advised the FAA in writing that the 
person poses a security threat. The TSA's initial finding that a person 
poses a security threat is contained in an Initial Notification of 
Threat Assessment; a final finding is contained in a Final Notification 
of Threat Assessment. The rule explains the effect of the issuance by 
the TSA of each document. The FAA will hold in abeyance an application 
by an individual who has been issued an Initial Notification pending 
the outcome of the TSA's final threat assessment review. If the TSA 
withdraws its Initial Notification, the FAA will issue a certificate 
provided the applicant is otherwise qualified. The FAA will suspend 
certificates held by any person who is initially found by the TSA to 
pose a security threat. The FAA will withdraw its certificate 
suspension if the TSA withdraws its Initial Notification. With regard 
to issuance of a Final Notification of Threat Assessment, the FAA will 
deny the application of any person to whom the TSA issues a Final 
Notification of Threat Assessment, and it will revoke any airman 
certificates held by such a person. New sections 63.14 and 65.14 are 
being added to 14 CFR parts 63 and 65; they are identical to section 
61.18.

Justification for Immediate Adoption

    This action is being taken without providing the opportunity for 
prior notice and comment, and it provides for immediate effectiveness 
upon adoption. The Administrator has determined this action is 
necessary to prevent a possible imminent hazard to aircraft, persons, 
and property within the United States. The FAA, after consultation with 
the TSA, 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. The FAA now 
believes it is appropriate to provide expressly by rule that an 
individual determined by the TSA to be a security threat is ineligible 
for airman certification. This rule thus codifies the fundamental and 
inherently obvious principle that a person who poses a security threat 
should not hold an FAA-issued airman certificate.
    The FAA 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 the FAA to take effective action to 
keep persons found by the TSA to pose a security threat from holding an 
airman certificate. Further, the Administrator 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.

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Paperwork Reduction Act

    There are no new requirements for information collection associated 
with this amendment. An agency may not conduct or sponsor and a person 
is not required to respond to a collection of information unless it 
displays a currently valid Office of Management and Budget (OMB) 
control number.

International Compatibility

    In keeping with U.S. obligations under the Convention on 
International Civil Aviation, it is FAA policy to comply with 
International Civil Aviation Organization (ICAO) Standards and 
Recommended Practices to the maximum extent practicable. The FAA 
determined that there are no ICAO Standards and Recommended Practices 
that correspond to these regulations.

Executive Order 12866 and DOT Regulatory Policies and Procedures

    This rulemaking action is taken under an emergency situation within 
the meaning of Section 6(a)(3)(D) of Executive Order 12866, Regulatory 
Planning and Review. It also is considered an emergency regulation 
under Paragraph 11g of the Department of Transportation (DOT) 
Regulatory Policies and Procedures. The FAA has not separately prepared 
a regulatory analysis or evaluation of this rule. However, the TSA has 
prepared a regulatory evaluation for its rulemaking and we do not 
believe that this action adds any separate costs not already covered by 
that evaluation. Based on that evaluation, the FAA determines that this 
rulemaking action is a significant rule within the meaning of the 
Executive Order and DOT's policies and procedures. Further, the FAA 
certifies that this final rule does not have a significant economic 
impact on a substantial number of small entities.

Trade Impact Assessment

    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, 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 FAA has assessed the potential effect of this rulemaking 
and has determined that it will impose no cost on international 
entities and thus has a neutral trade impact.

Unfunded Mandates Assessment

    The Unfunded Mandates Reform Act of 1995 (the Act), enacted as 
Public Law 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 3132, Federalism

    The FAA 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. Therefore, we determined that this final rule does not have 
federalism implications.

Environmental Analysis

    FAA Order 1050.1D defines FAA actions that may be categorically 
excluded from preparation of a National Environmental Policy Act (NEPA) 
environmental impact statement. In accordance with FAA Order 1050.1D, 
appendix 4, paragraph 4(j), this rulemaking action qualifies for a 
categorical exclusion.

Energy Impact

    The energy impact of this action has been assessed in accordance 
with the Energy Policy and Conservation Act (EPCA) Public Law 94-163, 
as amended (42 U.S.C. 6362) and FAA Order 1053.1. It has been 
determined that the final rule is not a major regulatory action under 
the provisions of the EPCA.

List of Subjects in 14 CFR Parts 61, 63, and 65

    Aircraft, Airmen, Aviation safety.

The Amendment

    In consideration of the foregoing, the Federal Aviation 
Administration amends Chapter I of Title 14, Code of Federal 
Regulations as follows:

PART 61--CERTIFICATION: PILOTS, FLIGHT INSTRUCTORS, AND GROUND 
INSTRUCTORS

    1. The authority citation for part 61 continues to read as follows:

    Authority: 49 U.S.C. 106(g), 40113, 44701-44703, 44707, 44709-
44711, 45102-45103, 45301-45302.


    2. Add Sec.  61.18 to subpart A to read as follows:


Sec.  61.18  Security disqualification.

    (a) Eligibility standard. No person is eligible to hold a 
certificate, rating, or authorization issued under this part when the 
Transportation Security Administration (TSA) has notified the FAA in 
writing that the person poses a security threat.
    (b) Effect of the issuance by the TSA of an Initial Notification of 
Threat Assessment. (1) The FAA will hold in abeyance pending the 
outcome of the TSA's final threat assessment review an application for 
any certificate, rating, or authorization under this part by any person 
who has been issued an Initial Notification of Threat Assessment by the 
TSA.
    (2) The FAA will suspend any certificate, rating, or authorization 
issued under this part after the TSA issues to the holder an Initial 
Notification of Threat Assessment.
    (c) Effect of the issuance by the TSA of a Final Notification of 
Threat Assessment. (1) The FAA will deny an application for any 
certificate, rating, or authorization under this part to any person who 
has been issued a Final Notification of Threat Assessment.
    (2) The FAA will revoke any certificate, rating, or authorization 
issued under this part after the TSA has issued to the holder a Final 
Notification of Threat Assessment.

PART 63--CERTIFICATION: FLIGHT CREWMEMBERS OTHER THAN PILOTS

    3. The authority citation for part 63 continues to read as follows:

    Authority: 49 U.S.C. 106(g), 40113, 44701-44703, 44707, 44709-
44711, 45102-45103, 45301-45302.


    4. Add Sec.  63.14 to subpart A to read as follows:


Sec.  63.14  Security disqualification.

    (a) Eligibility standard. No person is eligible to hold a 
certificate, rating, or authorization issued under this part when the 
Transportation Security Administration (TSA) has notified the FAA in 
writing that the person poses a security threat.

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    (b) Effect of the issuance by the TSA of an Initial Notification of 
Threat Assessment. (1) The FAA will hold in abeyance pending the 
outcome of the TSA's final threat assessment review an application for 
any certificate, rating, or authorization under this part by any person 
who has been issued an Initial Notification of Threat Assessment by the 
TSA.
    (2) The FAA will suspend any certificate, rating, or authorization 
issued under this part after the TSA issues to the holder an Initial 
Notification of Threat Assessment.
    (c) Effect of the issuance by the TSA of a Final Notification of 
Threat Assessment. (1) The FAA will deny an application for any 
certificate, rating, or authorization under this part to any person who 
has been issued a Final Notification of Threat Assessment.
    (2) The FAA will revoke any certificate, rating, or authorization 
issued under this part after the TSA has issued to the holder a Final 
Notification of Threat Assessment.

PART 65--CERTIFICATION: AIRMEN OTHER THAN FLIGHT CREWMEMBERS

    5. The authority citation for part 65 continues to read as follows:

    Authority: 49 U.S.C. 106(g), 40113, 44701-44703, 44707, 44709-
44711, 45102-45103, 45301-45302.


    6. Add Sec.  65.14 to subpart A to read as follows:


Sec.  65.14  Security disqualification.

    (a) Eligibility standard. No person is eligible to hold a 
certificate, rating, or authorization issued under this part when the 
Transportation Security Administration (TSA) has notified the FAA in 
writing that the person poses a security threat.
    (b) Effect of the issuance by the TSA of an Initial Notification of 
Threat Assessment. (1) The FAA will hold in abeyance pending the 
outcome of the TSA's final threat assessment review an application for 
any certificate, rating, or authorization under this part by any person 
who has been issued an Initial Notification of Threat Assessment by the 
TSA.
    (2) The FAA will suspend any certificate, rating, or authorization 
issued under this part after the TSA issues to the holder an Initial 
Notification of Threat Assessment.
    (c) Effect of the issuance by the TSA of a Final Notification of 
Threat Assessment. (1) The FAA will deny an application for any 
certificate, rating, or authorization under this part to any person who 
has been issued a Final Notification of Threat Assessment.
    (2) The FAA will revoke any certificate, rating, or authorization 
issued under this part after the TSA has issued to the holder a Final 
Notification of Threat Assessment.

    Issued in Washington, DC on January 21, 2003.
Marion C. Blakey,
Administrator.
[FR Doc. 03-1681 Filed 1-22-03; 10:09 am]
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