[Federal Register Volume 70, Number 93 (Monday, May 16, 2005)]
[Rules and Regulations]
[Pages 25761-25764]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-9704]


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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: Disposition of comments on final rule.

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SUMMARY: On January 24, 2003, the FAA adopted eligibility standards 
that disqualify a person from holding an airman certificate, rating, or 
authorization when the Transportation Security Administration has 
advised the FAA in writing that the person poses a security threat. The 
rule was adopted to prevent a possible imminent hazard to aircraft, 
persons, and property within the United States. This action is a 
summary and disposition of comments received on the final rule.

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:

Availability of Rulemaking Documents

    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) Visiting the Office of Rulemaking's Web page at http://www.faa.gov/avr/arm/index.cfm; or
    (3) Accessing 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.
    Anyone is able to search the electronic form of all comments 
received into any of our dockets by the name of the individual 
submitting the comment (or signing the comment, if submitted on behalf 
of an association, business, labor union, etc.). You may review DOT's 
complete Privacy Act statement in the Federal Register published on 
April 11, 2000 (Volume 65, Number 70; Pages 19477-78) or you may visit 
http://www.dms.dot.gov.

Background

    On January 24, 2003, the FAA published new regulations that 
expressly disqualify persons found by the Transportation Security 
Administration (TSA) to pose a security threat from holding airman 
certificates (68 FR 3772). The FAA added new Sec. Sec.  61.18, 63.14 
and 65.14 to 14 CFR.
    The FAA explained in the final rule that it was relying on threat 
assessments made by the TSA based on the broad statutory authority and 
responsibility that Congress placed in the TSA when it enacted the 
Aviation and Transportation Security Act (ATSA). ATSA directs the TSA 
to receive, assess, and distribute intelligence information related to 
transportation security and to assess threats to transportation. It 
also charges the TSA with the responsibility to assess intelligence and 
other information 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. The law 
specifically directs the TSA to establish procedures for notifying the 
FAA 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.

Congressional Action

    Congress has enacted a law that has largely codified the FAA's 
rulemaking action. On December 12, 2003, the President signed the 
Vision 100--Century of Aviation Reauthorization Act. Section 601 of 
that act contained in section 46111 of Title 49 of the U.S. Code 
provides, in part:

    The Administrator of the Federal Aviation Administration shall 
issue an order amending, modifying, suspending, or revoking any part 
of a certificate issued under this title if the Administrator is 
notified by the Under Secretary of Border and Transportation 
Security of the Department of Homeland Security that the holder 
poses, or is suspected of posing, a risk of air piracy or terrorism 
or a threat to airline and passenger safety.

This statute requires the same result as the FAA's rules--if the 
Department of Homeland Security notifies the FAA that a certificate 
holder poses, or is suspected of posing, a security threat, the FAA 
must take action against the certificate. The new law also provides 
administrative and judicial review procedures for certificate holders 
that are U.S. citizens.

Litigation

    Several labor associations and two individuals sought judicial 
review of the rules in the United States Court of Appeals for the 
District of Columbia Circuit. The following cases were consolidated for 
consideration by the court: Coalition of Airline Pilots Associations v. 
FAA and TSA, No. 03-1074, and Air Line Pilots Association, 
International, et al. v. FAA and TSA, No. 03-1076. The cases involving 
the two individuals were also consolidated: Jifry and Zarie v. FAA and 
TSA, No. 03-1085; Jifry and Zarie v. NTSB, Nos. 03-1144 and 03-1282, 
which involved certificate action taken by the FAA and reviewed by the 
National Transportation Safety Board.
    In Jifry and Zarie v. FAA et al., 370 F.3d 1174 (June 11, 2004), 
the court addressed the FAA's and TSA's rules as applied to non-
resident aliens. It rejected Jifry and Zarie's challenges to the rule, 
including their contentions that the rules were invalid because they 
were promulgated without prior notice and violated the due process 
clause of the Fifth Amendment to the U.S. Constitution. On February 22, 
2005, the Supreme Court declined to review the court of appeals' 
decision.
    In Coalition of Airline Pilots Associations, et al. v. FAA and TSA, 
370 F.3d 1184 (D.C. Cir. June 11, 2004), the court dismissed as moot 
the challenge to the FAA's and the TSA's rules posed by several unions 
representing aviation workers. The court explained that the new section 
46111 directs the FAA to take certificate action when notified by the 
Under Secretary of Border and Transportation of a security threat--the 
same result that occurred under the FAA's rules. Furthermore, as to 
citizens the new law provides a more robust set of procedural 
protections than available under the FAA's and the TSA's rules. With 
regard to resident aliens, the court noted that the Government had 
represented that the agencies would not be enforcing their rules and 
would be undertaking notice-and-comment rulemaking.

Summary of Comments

General

    The FAA received about 700 comments on the final rule. Most

[[Page 25762]]

commenters opposed the rule. The opposition is mostly based on four 
major categories of objections: Due Process; Ineffectiveness against 
Terrorists; TSA/Government Will Become Too Powerful; and Adoption of 
Rule without Prior Comment.

Due Process

    About 300 commenters based their objection to this rule solely on a 
perceived due process violation. In total, about 500 commenters cited 
due process as a factor in their opposition to this rule. Most seemed 
to think that revoking an airman's certificate was similar to a 
criminal conviction, and accordingly felt that they were being denied 
due process as discussed in the Fifth and Fourteenth Amendments to the 
United States Constitution. One commenter said that the TSA must prove 
before a judge that the pilot is a security risk. Several individuals 
expressed concerns over the inability to confront their accusers and 
see the evidence against them. Many commenters were unhappy about the 
lack of an independent appeals process to guarantee that TSA mistakes 
and abuses were checked.
    The major theme throughout these comments, including those of the 
Cessna Aircraft Company and the Independent Pilots' Association, was 
that there was no meaningful recourse for a wrongly accused pilot. 
Numerous individuals asserted that pilots can make honest mistakes in 
interpreting restricted zones, bureaucratic errors can occur, and TSA 
officials can spitefully abuse their power, so there must be some sort 
of meaningful recourse.
    Another major issue raised by numerous commenters was that the 
principle of innocent until proven guilty was being violated. 
Commenters felt that the TSA should have the burden of proof in all 
cases, rather than have the pilot try to prove his or her innocence, 
based on evidence he or she might not have access to, in front of a 
partial judge, the TSA.
    Many commenters also found it unacceptable that the TSA seemed to 
be playing multiple roles within the legal system, simultaneously as 
accuser, advocate, judge, jury, appellate body, and enforcer. This 
issue is related to the third major category, the expansion of 
government power, and the potential for abuse of power.
    Other commenters recommended that the TSA submit evidence before a 
judge to determine whether there is probable cause, based on the 
criminal standard, in labeling an individual as a security risk. The 
Airline Dispatchers Federation felt that this rule lowers the standard 
of proof to hearsay. Some others felt that there were other 
Constitutional violations such as an illegal seizure without probable 
cause (Fourth Amendment) or lack of a fair trial (Sixth Amendment). In 
order to ensure due process, one commenter suggested that the 
Department of Homeland Security clear all levels of access for a select 
group of individuals to serve as an airman's advocate during an appeal 
before the NTSB. Another commenter suggested that there should be a 
regional board of review available to each accused pilot.

Ineffective Against Terrorists

    About 180 commenters objected to this rule based on the notion that 
this rule would not help in our fight against terrorism, which is the 
underlying reason for this rule. About 40 commenters objected to this 
rule solely based on this type of reasoning. The commenters who made 
this point generally felt that since terrorists by nature are not law-
abiding citizens and are quite dedicated to their cause, the lack of 
proper certification to fly a plane would not deter their plans. Many 
cited the September 11, 2001, attacks as an example of how unlicensed 
pilots or even passengers could take control of a plane, without any 
official certification. Commenters overwhelmingly felt that revoking a 
pilot certificate does not remove the knowledge of how to fly a plane.
    Some commenters stated that if the government really did have 
evidence proving that an individual is a terrorist, they would hope 
that much more could be done. Commenters specifically mentioned 
detention and a criminal trial, rather than revoking a pilot 
certificate. Commenters felt that revoking a pilot certificate was 
meaningless. One commenter felt that if the FAA were to revoke an 
airman certificate, it would then lose all power and authority over 
that individual. Additionally, several pilots and organizations claimed 
that certificates are very rarely checked before one flies an airplane, 
and thus it is conceivable that an unlicensed pilot would still be able 
to fly a plane. The resounding tone of this type of objection was that 
only innocent, law-abiding citizens would be hurt by this rule, and 
terrorists would not be affected.

TSA/Government Will Become Too Powerful

    Many of the about 170 people who voiced this type of objection felt 
that if this rule remains in effect, the terrorists have ultimately 
won. They will have forced Americans to give up hard-earned rights to 
the government. Numerous individuals echoed concerns of governmental 
abuse related to due process based on the view that the TSA seemed to 
play numerous roles in the process.
    Most commenters also mentioned some loss of freedom. Many felt that 
pilots would not be able to freely express their opinions, security-
related and otherwise, because of the fear of being unjustly deemed a 
security risk by the TSA. Others felt that, in general, we should not 
sacrifice personal freedoms to make up for the government's inability 
to do its job.
    One of the most pressing concerns of many commenters was that 
experienced, professional pilots could be judged by TSA screeners. 
Commenters felt the screeners were young, inexperienced, and 
unqualified. Many of these commenters were pilots, and were deeply 
concerned that a mistake-prone screener or one with a personal vendetta 
could ruin their lives. Some commenters stated that government, as an 
institution, has many natural advantages over individuals, especially 
those accused of being security risks. Commenters felt supplementing 
those advantages with this essentially absolute power could forever 
punish a wrongly-accused individual. They were concerned that these 
individuals would face a tremendous challenge trying to defend 
themselves without seeing the evidence or having the ability to cross-
examine witnesses.
    The Experimental Aircraft Association and the Airline Professionals 
Association/Teamsters Local 1224 demanded a meaningful opportunity for 
the accused to be heard. They were very concerned about the inability 
of the accused to challenge TSA evidence due to its non-disclosure 
rules and autonomy throughout the process. Furthermore, several 
commenters were troubled because of their belief that there are no 
checks and balances in this rule because there is no oversight or 
ability to appeal a TSA decision to another authority. Many of these 
individuals and organizations demanded the right to an appeal. They 
suggested that a newly created independent review board or the NTSB 
oversee the decisions of the TSA, since the TSA has the convenient 
ability to shield information under the guise of national security.

Adoption of Rule Without Prior Comment

    More than 40 commenters were frustrated by the rulemaking process 
for this final rule. The lack of an NPRM

[[Page 25763]]

followed by an opportunity for public comment, before issuing the final 
rule, bothered many individuals because they felt that public feedback 
was a vital part of the democratic process. Some also questioned the 
stated emergency that prevented normal public comment. They pointed out 
that this rule was issued more than 16 months after the September 11th 
attacks, the event cited in the final rule as the underlying cause for 
the rule. Others claimed that this rule would have been revised or 
withdrawn had the FAA gone through the normal process.

Miscellaneous Objections

    Many commenters worried about both the financial implications for 
wrongly accused pilots and for the airline industry, as many pilots, in 
their view, could be blacklisted for minor infractions. The Southwest 
Airlines Pilots' Association commented that the little evidence the TSA 
needs to accuse a pilot could have a large financial impact on the 
pilot. One commenter felt that besides the lack of compensation for 
wrongly accused ``victims,'' the individual does not have enough time 
to make a proper appeal. Another was troubled by the lack of a time 
frame for each part of the process.
    Several individuals demanded the standards used by the TSA to 
determine security risks be clearly and openly stated, to prevent 
racial profiling and other forms of abuse by TSA. Many commenters felt 
that this rule was disrespectful to pilots and could alienate them. 
Among these, many felt that pilots were unfairly being singled out for 
extra scrutiny. They pointed out that terrorists could just as easily 
seize trucks or ships and could conceivably do more damage with a large 
truck than a small plane. They maintain that it would seem absurd to 
allow the government to immediately revoke drivers' licenses based on 
mere suspicion, and pilots' licenses deserve that same level of 
respect. One commenter stated that the lack of a driver's license 
hardly prevents many otherwise lawful citizens from driving, yet this 
rule unreasonably expects an unlawful citizen to be deterred by 
revoking his or her pilot's license. Some pilots felt insulted by this 
rule. They said that pilots are often former members of the armed 
services, who have risked their lives for America, yet are being 
treated like terrorists by their own government. Two commenters said 
that this was unfair because pilots of foreign airlines who operate in 
American airspace would not be scrutinized as thoroughly as American 
pilots, when it should be the other way around.
    Some commenters also claim that they are the good guys in the fight 
against terrorism, by using their unique vantage point, high in the 
air, to help law enforcement officials. Also, one commenter said it was 
frustrating that thousands of innocent airmen will be classified as 
security risks, when they are the ones most vulnerable to terrorists. 
Others joined this sentiment and said that instead of targeting 
innocent American aviators, the government should focus its national 
security efforts on tighter national borders and better enforced 
immigration laws. One commenter felt that pilots were less of a threat 
to national security than maintenance workers who have ample access to 
the aircraft. One commenter said that it was unconstitutional to allow 
secret testimony to be used in any FAA determination. Several 
commenters also mentioned that restricted flying zones change so often 
that a pilot could make an honest mistake, and without any due process 
protections, could lose his or her license to fly, thus deterring many 
potential aviators.
    Several commenters, including the Aircraft Mechanics Fraternal 
Association (AMFA), the Professional Aviation Maintenance Association, 
the International Brotherhood of Teamsters Airline Division, and the 
American Electronics Association (AEA), claimed that a pilot has 
certain property rights associated with his or her pilot certificate 
and is constitutionally guaranteed due process before revocation. The 
AEA and Air Line Pilots Association (ALPA) also mentioned that since 
the TSA was not making its criteria for assessing security risks 
publicly available, this rule was unconstitutionally vague and 
overbroad, and gave the TSA unchecked power. The Transportation Trades 
Department pointed out there are no standard criteria for deeming 
individuals a security risk, and that there is no independent check on 
the TSA at any point in the process.
    The AEA also asserted that the FAA did not follow proper procedures 
in adopting this rule. ALPA and the Aircraft Owners and Pilots 
Association felt that the rule was beyond the scope of the ATSA. 
Furthermore, a few individuals and the Aviation Policy Institute 
claimed that the FAA already has emergency powers to revoke a pilot's 
license, making this rule completely unnecessary. The National Business 
Aviation Association and the National Air Transportation Association 
would like the FAA to revert to its policies prior to this rule, 
feeling that this rule is unnecessary and unconstitutional, because the 
FAA already has emergency revocation powers and does not have statutory 
authority for this type of rule.
    AMFA asserted that certified mechanics already have to go through a 
ten-year security background check, and that this new rule would 
discriminate against them in favor of non-certified mechanics. Also, a 
few commenters expressed concern over the a diminution of the FAA's 
role because of this rule, and felt that by giving the TSA the 
decision-making authority over the revocation of pilots' licenses, the 
FAA was neither fulfilling its mission to oversee aviation safety nor 
using its aviation expertise through conducting its own independent 
investigations.
    Fourteen commenters did not clearly express opposition to this 
rule, and their comments were usually either a recommendation to the 
FAA or off-topic. Some of the recommendations were that this rule does 
not cover: pilots who fly public use aircraft, air traffic controllers, 
cleaners, technicians, refuelers, and vendors. One commenter said that 
the FAA overlooked the fact that convicted felons can still become 
licensed commercial pilots. Another suggested a complete background 
check. Two other commenters wanted the courts to step in. One suggested 
that a federal court confirm that there is probable cause before the 
security risk claim is made by the TSA. The other wanted the Supreme 
Court to review the constitutionality of this rule. Finally, one 
commenter wondered about the application of this rule to FAA inspectors 
and NTSB investigators.

Support for the Rule

    Four commenters supported the rule. They felt that this rule is a 
worthwhile deterrent in the fight against terrorism because of current 
safety concerns. One commenter said that national security is more 
important than the possibility of a pilot's losing his or her license 
for a period of time. Another emphasized that an airman certificate is 
a privilege not a right.
    FAA response: Congress has enacted a law that has largely overtaken 
the FAA's rulemaking action and the challenges to the FAA's and TSA's 
rules have been decided by the U.S. Court of Appeals for the District 
of Columbia Circuit. Based on these developments, a detailed response 
to the comments is not warranted. In addition, many of the comments 
addressed the TSA's rules, and it would be inappropriate for the FAA to 
address these comments.

[[Page 25764]]

Conclusion

    The FAA is working with TSA to determine if additional rulemaking 
is necessary to reflect the statutory requirements of 49 U.S.C. 46111. 
In this new rulemaking action, the public will have an opportunity to 
comment before the adoption of a final rule.

    Issued in Washington, DC, on May 10, 2005.
Marion C. Blakey,
Administrator.
[FR Doc. 05-9704 Filed 5-13-05; 8:45 am]
BILLING CODE 4910-13-P