TSA Passes "Pilot Insecurity" Rule

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On January 24, 2003, the Transportation Security Administration (TSA) and FAA released and implemented new rules that direct FAA to deny/revoke the airman certificate of anyone whom TSA says is a threat to national security. Bearing the lengthy title "Ineligibility for an Airman Certificate Based on Security Grounds," this final rule "expressly makes a person ineligible to hold FAA-issued airman certificates if TSA notifies FAA in writing that the person poses a security threat," reads the summary of the rule, which was published in the Federal Register. "This action is intended to reduce the opportunity for persons to carry out terrorist acts in the aviation environment."

The final rule was released without prior notice and prior public comment. Based on secret information possessed by TSA that considers a pilot a security risk, that agency can force FAA to revoke the pilot's certificate. Here's what will happen:

* TSA will notify an individual that he or she has been determined to pose a security threat and to advise FAA of its determination. One process applies to U.S. citizens; the other to non-U.S. citizens. Under both procedures, the individual is served with an Initial Notification of Threat Assessment.
* The individual may then respond in writing to this notification and provide any information the individual believes TSA should consider.
* In the case of a non-U.S. citizen, TSA's Deputy Administrator either finds the individual does pose a threat and will be issued a final Notification of Threat Assessment, or isn't a threat in which case a Withdrawal of Initial Notification will be issued.
* A U.S. citizen will face the same procedures with one exception. TSA's Under Secretary will also review the matter before a Final Notification of Threat Assessment is issued. If the Under Secretary determines the individual poses a security threat, the Under Secretary issues a Final Notification of Threat Assessment.
* At the time TSA issues its notifications, FAA is advised of TSA's decision with regard to individuals who hold or are applying for an airman certificate.

"FAA will suspend an individual's airman certificates after receiving the Initial Notification of Threat Assessment from TSA," according to the rule. "Suspension is appropriate in this circumstance, because TSA's initial assessment is still subject to review by TSA's Deputy Administrator, and, for U.S. citizens, the Under Secretary, and may be reversed."

Whether you hold a pilot's certificate or not, this rulemaking ought to make you sit up and take notice. The person(s) under scrutiny has no recourse but to go to the very agency accusing him or her of being a security threat. There is no due process. "If someone really is a terrorist, they shouldn't have a pilot certificate," says Phil Boyer, president of Aircraft Owners and Pilots Association (AOPA), which has almost 400,000 members. "And frankly, we should take stronger action than just lifting a license. But any American so accused must be guaranteed their basic constitutional protections to due process, and that includes the right to appeal to an independent adjudicator.

"Our goal is to sensitize members of Congress to the issue," continues Boyer. "Everyone we've talked to so far agrees. While they share our concern for security, they also think these rules appear to violate due process, and that a pilot should have an avenue of appeal to an independent party, not TSA.

"We cannot, we will not give up our basic rights to protect us from some vague and secret 'threat'. We are demanding that the government suspend enforcement of these rules and recraft them to protect national security and citizens' rights."

In a recent readership survey, 30% of Ultralight Flying! readers indicate they operate with a FAA pilot's certificate when flying their ultralights.

Readers who wish to view the entire rule can go to http://dms.dot.gov . Search for docket number FAA-2003-14293.

 
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