The Transportation Security Administration (“TSA”) has suspended enforcement of the rule that allowed it to revoke an airman’s certificate if he or she was deemed to pose a “security threat” to aviation security. As discussed in previous posts, if the TSA determined that an airman posed a risk to aviation security, upon notice from the TSA, the rule required that the FAA revoke an airman’s certificate.
As enacted, without notice or public commment, the rule did not contain any meaningful right to appeal the TSA’s decision. Although the airman could appeal to the TSA, if the threat assessment was based on intelligence information, the airman was denied access to the evidence needed to prepare a defense against the allegations. Further, the NTSB, the agency ordinarily responsible for review of FAA certificate actions, refused to review the TSA’s basis for determining that an airman posed a security risk.
The December 2003 FAA Reauthorization Bill included a provision directing the TSA to develop a new process to give an airman the ability to appeal the revocation to an impartial third party. However, since the TSA has not yet developed that process, it has said it will not enforce the rule against U.S. citizens or legal resident aliens until the new process is in place.
The TSA’s decision does not eliminate the rule. But it does provide a temporary reprieve until the TSA can implement a process that will protect and ensure due process rights to airman within the TSA’s sights.