Security Threat Disqualification Update, 34795-34800 [2018-15534]

Download as PDF 34795 Proposed Rules Federal Register Vol. 83, No. 141 Monday, July 23, 2018 This section of the FEDERAL REGISTER contains notices to the public of the proposed issuance of rules and regulations. The purpose of these notices is to give interested persons an opportunity to participate in the rule making prior to the adoption of the final rules. DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Parts 3, 61, 63, and 65 [Docket No.: FAA–2018–0656; Notice No. 18–03] RIN 2120–AL04 Security Threat Disqualification Update Federal Aviation Administration (FAA), Department of Transportation (DOT). ACTION: Notice of proposed rulemaking (NPRM). AGENCY: The FAA proposes to amend and consolidate the security threat disqualification regulations. This proposed rule would outline the FAA actions on certificates or applications for certificates when the Transportation Security Administration (TSA) notifies the FAA that an individual poses a security threat. DATES: Send comments on or before August 22, 2018. ADDRESSES: Send comments identified by docket number FAA–2018–0656 using any of the following methods: • Federal eRulemaking Portal: Go to http://www.regulations.gov and follow the online instructions for sending your comments electronically. • Mail: Send comments to Docket Operations, M–30; U.S. Department of Transportation, 1200 New Jersey Avenue SE, Room W12–140, West Building Ground Floor, Washington, DC 20590–0001. • Hand Delivery or Courier: Take comments to Docket Operations in Room W12–140 of the West Building Ground Floor at 1200 New Jersey Avenue SE, Washington, DC 20590– 0001, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. • Fax: Fax comments to Docket Operations at (202) 493–2251. Privacy: In accordance with 5 U.S.C. 553(c), DOT solicits comments from the public to better inform its rulemaking amozie on DSK3GDR082PROD with PROPOSALS1 SUMMARY: VerDate Sep<11>2014 16:31 Jul 20, 2018 Jkt 244001 process. DOT posts these comments, without edit, including any personal information the commenter provides, to http://www.regulations.gov, as described in the system of records notice (DOT/ALL–14 FDMS), which can be reviewed at http://www.dot.gov/ privacy. Docket: Background documents or comments received may be read at http://www.regulations.gov at any time. Follow the online instructions for accessing the docket or go to the Docket Operations in Room W12–140 of the West Building Ground Floor at 1200 New Jersey Avenue SE, Washington, DC 20590–0001, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. FOR FURTHER INFORMATION CONTACT: For questions concerning this action, contact Courtney Freeman, Office of the Chief Counsel, AGC–200, Federal Aviation Administration, 800 Independence Avenue SW, Washington, DC 20591; telephone (202) 267–3073; email Courtney.Freeman@faa.gov. SUPPLEMENTARY INFORMATION: Authority for This Rulemaking The FAA’s authority to issue rules on aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106, describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency’s authority. This rulemaking is promulgated under 49 U.S.C. 106(f), which establishes the authority of the Administrator to promulgate regulations and rules; and 49 U.S.C. 44701(a)(5), which requires the Administrator to promote safe flight of civil aircraft in air commerce by prescribing regulations and setting minimum standards for other practices, methods, and procedures necessary for safety in air commerce and national security. This rulemaking is also promulgated pursuant to 49 U.S.C. 46111, which requires the Administrator to amend, modify, suspend, or revoke any certificate or any part of a certificate issued under Title 49 when the TSA notifies the FAA that the holder of the certificate poses or is suspected of posing a risk of air piracy or terrorism or a threat to airline or passenger safety. Additionally, this rulemaking is promulgated pursuant to 49 U.S.C. 44903(j)(2)(D)(i), which requires that PO 00000 Frm 00001 Fmt 4702 Sfmt 4702 TSA coordinate with the Administrator of the FAA to ensure that individuals are screened before being certificated by the FAA. Thus, the FAA will not issue a certificate to screened individuals identified by TSA as security threats. I. Executive Summary A. Purpose of the Regulatory Action This proposed rulemaking would amend and consolidate the current FAA security threat disqualification regulations found in 14 CFR 61.18, 63.14, and 65.14 into part 3 of Title 14 of the Code of Federal Regulations (14 CFR). Those regulations provide, in sum, that no person is eligible to hold a certificate, rating, or authorization issued under each of those parts when the TSA notifies the FAA in writing of an adverse security threat determination. Since 2004, the FAA has not applied these regulations to United States (U.S.), citizens or resident aliens, instead relying on the statutory authority in 49 U.S.C. 46111, Public Law 108–176 (Dec. 12, 2003), and 49 U.S.C. 44903(j)(2)(D)(i), Public Law 108–458 (Dec. 17, 2004), enacted after the FAA issued its security threat disqualification regulations. Section 46111 directs the FAA to take action against ‘‘any part of a certificate’’ issued under Title 49 in response to a security threat determination by the TSA and also provides a hearing and appeal process for U.S. citizens. Section 44903(j)(2)(D)(i) provides that individuals will be screened against the consolidated and integrated terrorist watchlist maintained by the federal government prior to being certificated by the FAA. This proposed rule is necessary to conform the above-cited FAA regulations to 49 U.S.C. 46111 and 44903(j)(2)(D)(i) and to clarify the FAA’s process for preventing the issuance of certificates to applicants that the TSA finds to be security threats. Consistent with 49 U.S.C. 46111 and 44903(j)(2)(D)(i), the proposed security threat regulations describe the actions the FAA will take on a certificate or certificate application when it receives notification from the TSA that an individual is a security threat. As with current practice under the statute, the FAA would not issue a certificate or any part of a certificate when the TSA has notified the FAA in writing that the individual poses, or is suspected of E:\FR\FM\23JYP1.SGM 23JYP1 34796 Federal Register / Vol. 83, No. 141 / Monday, July 23, 2018 / Proposed Rules posing, a risk of air piracy or terrorism or a threat to airline or passenger safety. For certificates already issued, the FAA would amend, modify, suspend, or revoke any FAA-issued certificate or part of such certificate upon written notification from the TSA that the certificate holder poses, or is suspected of posing a risk of air piracy or terrorism or a threat to airline or passenger safety.1 B. Costs and Benefits This rule is not expected to impose anything other than minimal cost, if any. The proposed regulations would merely codify existing, statutorilymandated procedures that FAA has been following since 2004. This proposed rule, therefore, would not have significant economic impact within the meaning of Executive Order 12866 and DOT’s policies and procedures. amozie on DSK3GDR082PROD with PROPOSALS1 II. Background A. Current Statutory and Regulatory Structure Governing Security Threat Disqualification In response to the attack on the United States on September 11, 2001, the FAA issued the current security threat disqualification regulations to prevent a possible imminent hazard to aircraft, persons, and property within the United States. Specifically, in 2003, the FAA, in consultation with the TSA, determined that security threat disqualification regulations were necessary to minimize security threats and potential security vulnerabilities to the fullest extent possible. The FAA, the TSA, and other federal security agencies were concerned about the potential use of aircraft to carry out further terrorist acts in the United States. Accordingly, the FAA issued a final rule, Ineligibility for an Airman Certificate Based on Security Grounds, 68 FR 3772 (Jan. 24, 2003), providing that an individual determined by the TSA to be a security threat is ineligible for airman certification and thus cannot not hold an FAA-issued airman certificate. The FAA took this action because a person who poses a security threat should not be in a position that could be used to take actions that are contrary to civil aviation security and, therefore, safety in air commerce. These security threat disqualification regulations are found in §§ 61.18, 63.14, and 65.14. Subsequent to the issuance of the current FAA security threat 1 The TSA directs what specific action the FAA should take on the certificate and includes that information in the letter notifying the FAA of the security threat determination. VerDate Sep<11>2014 16:31 Jul 20, 2018 Jkt 244001 disqualification regulations, the President signed into law 49 U.S.C. 46111 2 and 49 U.S.C. 44903(j)(2)(D)(i).3 Section 46111 requires the FAA to amend, modify, suspend, or revoke certificates or any part of a certificate issued under Title 49, when the TSA informs the FAA that the holder ‘‘poses, or is suspected of posing, a risk of air piracy or terrorism or a threat to airline or passenger safety.’’ Under section 44903(j)(2)(D)(i), the TSA and the FAA must work together to ‘‘ensure that individuals are screened . . . before being certificated by the [FAA].’’ After the passage of these statutes, the FAA did not update its regulations, though it did publish in the Federal Register its disposition of comments to the 2003 final rule which noted that if additional rulemaking was necessary to reflect the statutory requirements of 46111, the FAA would utilize notice and comment rulemaking.4 The FAA’s Federal Register document also summarized two D.C. Circuit cases from 2004 that sought judicial review of the FAA and the TSA’s security threat disqualification regulations. In one of those cases, Coalition of Airline Pilots Associations v. FAA, 370 F.3d 1184 (D.C. Cir. 2004), the FAA, the TSA, and the Department of Justice pledged not to apply existing regulations to U.S. citizens or resident aliens, as further addressed in the Discussion of the Proposal.5 III. Discussion of the Proposal A. Scope The proposed rule would codify the FAA’s authority to amend, modify, suspend, and revoke FAA-issued certificates and any part of such certificates issued to individuals under Title 49 based on the TSA’s written notification that a certificate holder poses a security threat. The proposed rule would also clarify the FAA’s authority to deny or hold in abeyance applications for certificates and any parts of such certificates when the TSA notifies the FAA that an applicant poses a security threat. The proposed rule would implement the security threat 2 Vision 100—Century of Aviation Reauthorization Act, Public Law 108–176, 117 Stat. 2490 (Dec. 12, 2003). 3 Intelligence Reform and Terrorism Prevention Act, Public Law 108–458, 118 Stat. 3638 (Dec. 17, 2004). 4 Ineligibility for an Airman Certificate Based on Security Grounds, 70 FR 25761 (May 16, 2005). 5 Memorandum to the Dockets, TSA Rulemaking Dockets Nos. TSA–2002–13732 and TSA–2002– 13733, Transportation Security Administration, U.S. Department of Homeland Security (Mar. 16, 2004). PO 00000 Frm 00002 Fmt 4702 Sfmt 4702 disqualification requirement mandated in 49 U.S.C. 46111 and 44903(j)(2)(D)(i). Both 49 U.S.C. 46111 and 44903(j)(2)(D)(i), on which this proposed rule relies, refer to certificate holders and applicants in terms of individuals, rather than entities.6 While there is separate statutory authority for FAA certificate-action against entities based on TSA security threat determinations,7 this proposed rule addresses only individuals who hold or are applying for certificates issued under Title 49 of the United States Code. B. Certificate Applicants While 49 U.S.C. 46111 sets out a mechanism by which the FAA handles the amendment, modification, suspension, or revocation of an individual’s certificate, it is silent as to how the FAA should handle security threat determinations at the certificate application stage. This proposed rule would codify the FAA’s process for preventing the issuance of certificates to individuals at the application stage when the TSA finds the individuals to be security threats. FAA’s authority to deny or hold in abeyance an individual’s certificate application based on the TSA’s written notification that an individual poses a security threat is necessary to implement the intent of 49 U.S.C. 44903(j)(2)(D)(i), which requires the FAA to coordinate with the TSA to ensure that certificate applicants are screened against all appropriate records in the consolidated and integrated terrorist watchlist maintained by the federal government before being certificated by the FAA. The FAA must not issue certificates to individuals who the TSA finds to be a security threat. The proposed rule would provide that, upon notification from the TSA, the FAA would hold in abeyance the applications of these individuals while they are provided the 6 See, e.g., 49 U.S.C. 46111(b) (allowing ‘‘individuals’’ who are U.S. citizens to have a hearing on the record); § 46111(f) (‘‘An individual who commences an appeal’’); § 46111(g)(3) (‘‘upon request of the individual adversely affected by an order of the [FAA] Administrator’’); 49 U.S.C. 44903(j)(2)(D)(i) (requiring screening of ‘‘individuals); Cf. Transportation Security Administration (TSA) Vetting of Airmen Certificates and General Aviation Airport Access and Security Procedures, DHS OIG (July 2011), https:// www.oig.dhs.gov/assets/Mgmt/OIG_11-96_ Jul11.pdf; Memorandum To The Dockets, TSA Rulemaking Dockets Nos. TSA–2002–13732 and TSA–2002–13733, Transportation Security Administration, U.S. Department of Homeland Security (Mar. 16, 2004). 7 For example, 49 U.S.C. 44924, provides for FAA suspension or revocation of a repair station’s certificate based on a TSA determination regarding the repair station’s security measures and security risk. E:\FR\FM\23JYP1.SGM 23JYP1 Federal Register / Vol. 83, No. 141 / Monday, July 23, 2018 / Proposed Rules amozie on DSK3GDR082PROD with PROPOSALS1 opportunity to appeal the TSA’s security threat determination under the TSA’s appeal process. The FAA would deny an application only upon the TSA’s notification of a final security threat determination. Alternatively, if the TSA notifies the FAA that it has withdrawn its security threat determination, the FAA would continue processing the application. C. Application of Regulations to U.S. Citizens and Resident Aliens The FAA proposes to apply the security threat disqualification regulations to all individuals, including U.S. citizens and resident aliens, who hold FAA-issued certificates or are applying for these certificates. This approach would harmonize the proposed security threat disqualification regulations with 49 U.S.C. 46111 and 44903(j)(2)(D)(i). It would also close a gap in the FAA’s security threat disqualification regulations which are currently not being applied to U.S. citizens and resident aliens as a result of a pledge made by the FAA and the TSA in the case Coalition of Airline Pilots Associations v. FAA, 370 F.3d 1184 (D.C. Cir. 2004). In the Coalition of Airline Pilots Associations case, unions representing aviation workers raised various challenges to the TSA and the FAA’s current security threat disqualification regulations. The D.C. Circuit never reached the merits of the unions’ claims. Instead, the Court dismissed the unions’ petition for review, finding that intervening events had mooted their claims, specifically the new laws enacted by Congress. Both the TSA and the FAA pledged that the existing security threat regulations would no longer be applied to U.S. citizens or resident aliens as a result of the passage of § 46111 which provides a different mechanism for TSA security threat determinations and appeal procedures for U.S. citizens.8 The agencies also noted that when they issued new security threat disqualification regulations they would do so pursuant to notice and comment rulemaking. Another D.C. Circuit decision, decided on the same day as the Coalition of Airline Pilots Associations case, upheld the application of the same FAA security threat disqualification regulations to non-resident aliens because the regulations provide sufficient due process for non-resident aliens. Jifry v. FAA, 370 F.3d 1174 (DC Cir. 2004). This 8 Memorandum to the Dockets, TSA Rulemaking Dockets Nos. TSA–2002–13732 and TSA–2002– 13733, Transportation Security Administration, U.S. Department of Homeland Security (Mar. 16, 2004). VerDate Sep<11>2014 16:31 Jul 20, 2018 Jkt 244001 proposal would establish regulations that apply equally to all certificate holders and applicants. D. TSA Security Threat Determinations and Appeals The FAA’s certificate denials are generally covered under 49 U.S.C. 44703 and, therefore, are appealable to the National Transportation Safety Board (NTSB). In cases of security threat disqualifications, if the certificate action is appealable to the NTSB, the FAA does not anticipate that the scope of these appeals would extend beyond an examination of the procedural ground for the certificate action or application denial because an affected individual would be provided the opportunity to challenge the substance of TSA’s security threat determination under TSA’s appeal process.9 In the case of a security threat disqualification, the certificate action or application denial would be based on the TSA’s applicant vetting and security threat determinations, as mandated under 49 U.S.C. 46111 and 44903(j)(2)(D)(i). The FAA’s reliance on TSA’s vetting and security threat determinations is also based on the broad statutory authority and responsibility that the Aviation and Transportation Security Act (ATSA), Public Law 107–71, (115 Stat. 597, Nov. 19, 2001), placed in the office of the Under Secretary of Transportation for Security with regard to intelligence information and security threat assessments. The FAA is not privy to the basis for the TSA’s security threat determinations, which often include classified information. Therefore, the FAA’s certificate actions and application denials are based solely on written notification by the TSA of a security threat determination against an individual. Accordingly, appeals of the security threat determinations made by the TSA are made through the TSA’s administrative appeal process.10 9 The appropriate venue for appealing a certificate action based on a security threat determination was also discussed substantially in Jifry v. FAA, 370 F.3d 1174 (DC Cir. 2004). The court stated that ‘‘Section 46111 makes no provision for NTSB review even for citizens, and the Conference Report states that non-resident aliens ‘have the right to the appeal procedures that [TSA] has already provided for them.’ H.R. Conf. Rpt. 108–334 at 152 (2003). In addition, § 46111(a) requires the FAA to respond automatically to TSA threat assessments . . . if these pilots retain any right to NTSB review at all, it is no broader than the review for procedural regularity that they have received . . .’’ Jifry at 1180. 10 See 49 U.S.C. 46111. TSA currently is using interim redress procedures for U.S. citizen, U.S. non-citizen national, and lawful permanent resident certificate holders. While section 46111 does not require that TSA provide ALJ review to U.S. noncitizen nationals and lawful permanent residents, PO 00000 Frm 00003 Fmt 4702 Sfmt 4702 34797 IV. Regulatory Notices and Analyses A. Regulatory Evaluation Changes to Federal regulations must undergo several economic analyses. First, Executive Order 12866 and Executive Order 13563 direct that each Federal agency shall propose or adopt a regulation only upon a reasoned determination that the benefits of the intended regulation justify its costs. Second, the Regulatory Flexibility Act of 1980 (Pub. L. 96–354) requires agencies to analyze the economic impact of regulatory changes on small entities. Third, the Trade Agreements Act (Pub. L. 96–39) prohibits agencies from setting standards that create unnecessary obstacles to the foreign commerce of the United States. In developing U.S. standards, the Trade Act requires agencies to consider international standards and, where appropriate, that they be the basis of U.S. standards. Fourth, the Unfunded Mandates Reform Act of 1995 (Pub. L. 104–4) requires agencies to prepare a written assessment of the costs, benefits, and other effects of proposed or final rules that include a Federal mandate likely to result in the expenditure by State, local, or tribal governments, in the aggregate, or by the private sector, of $100 million or more annually (adjusted for inflation with base year of 1995). This portion of the preamble summarizes the FAA’s analysis of the economic impacts of this proposed rule. The existing security threat disqualification regulations, 14 CFR parts 61.18, 63.14, and 65.14, disqualify any person who the TSA has found to be a security threat from obtaining an FAA certificate. These regulations went into effect on January 24, 2004. A year later, the President signed statutory authority in 49 U.S.C. 46111 and 49 U.S.C. 44903(j)(2)(D)(i) into law. 49 U.S.C. 46111 directs the FAA to take action against the holder of any part of a certificate in response to a security threat determination by the TSA and also provides an appeal process for U.S. citizens. 49 U.S.C. 44903(j)(2)(D)(i) directs TSA to coordinate with the FAA to ensure that individuals are screened against a consolidated and integrated terrorist watchlist maintained by the federal government prior to being certificated by the FAA. The existing regulations and the statutory authority are virtually identical, and the FAA has been relying on the statutory authority, not the existing regulations, to prevent TSA has chosen to do so in its interim procedures. TSA also provides U.S. non-citizen nationals and lawful permanent residents with review by the TSA Final Decision Maker if those individuals choose to appeal an ALJ Decision. E:\FR\FM\23JYP1.SGM 23JYP1 34798 Federal Register / Vol. 83, No. 141 / Monday, July 23, 2018 / Proposed Rules amozie on DSK3GDR082PROD with PROPOSALS1 individuals who are security threats from obtaining or holding a certificate. The FAA has not updated its regulations since the enactment of statutory authority 49 U.S.C. 46111 and 49 U.S.C. 44903(j)(2)(D)(i). Since there are no new requirements in the proposed rule, the expected outcome would be a minimal cost, if any, and a full regulatory evaluation was not prepared. The FAA requests comments with supporting justification about the FAA determination of minimal economic impact. The FAA has, therefore, determined that this proposed rule is not a ‘‘significant regulatory action’’ as defined in section 3(f) of Executive Order 12866, and is not ‘‘significant’’ as defined in DOT’s Regulatory Policies and Procedures. B. Regulatory Flexibility Determination The Regulatory Flexibility Act of 1980 (Pub. L. 96–354) (RFA) establishes ‘‘as a principle of regulatory issuance that agencies shall endeavor, consistent with the objectives of the rule and of applicable statutes, to fit regulatory and informational requirements to the scale of the businesses, organizations, and governmental jurisdictions subject to regulation.’’ To achieve this principle, agencies are required to solicit and consider flexible regulatory proposals and to explain the rationale for their actions to assure that such proposals are given serious consideration. The RFA covers a wide-range of small entities, including small businesses, not-forprofit organizations, and small governmental jurisdictions. Agencies must perform a review to determine whether a rule will have a significant economic impact on a substantial number of small entities. If the agency determines that it will, the agency must prepare a regulatory flexibility analysis as described in the RFA. However, if an agency determines that a rule is not expected to have a significant economic impact on a substantial number of small entities, section 605(b) of the RFA provides that the head of the agency may so certify and a regulatory flexibility analysis is not required. The certification must include a statement providing the factual basis for this determination, and the reasoning should be clear. The proposed rule provides similar requirements found in the existing security threat disqualification regulations in 14 CFR 61.18, 63.14, and 65.14, and statutory authority located at 49 U.S.C. 46111 and 49 U.S.C. 44903(j)(2)(D)(i). Thus, the proposed rule would not impose any new costs to the industry. The expected outcome VerDate Sep<11>2014 16:31 Jul 20, 2018 Jkt 244001 would be a minimal economic impact on any small entity affected by this rulemaking action. If an agency determines that a rulemaking will not result in a significant economic impact on a substantial number of small entities, the head of the agency may so certify under section 605(b) of the RFA. Therefore, as provided in section 605(b), the head of the FAA certifies that this proposed rulemaking would not result in a significant economic impact on a substantial number of small entities. C. International Trade Impact Assessment The Trade Agreements Act of 1979 (Pub. L. 96–39), as amended by the Uruguay Round Agreements Act (Pub. L. 103–465), prohibits Federal agencies from establishing standards or engaging in related activities that create unnecessary obstacles to the foreign commerce of the United States. Pursuant to these Acts, the establishment of standards is not considered an unnecessary obstacle to the foreign commerce of the United States, so long as the standard has a legitimate domestic objective, such as the protection of safety, and does not operate in a manner that excludes imports that meet this objective. 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 proposed rule and determined that the objective of the rule is for the safety of the American public and is therefore not considered an unnecessary obstacle to the foreign commerce of the United States. D. Unfunded Mandates Assessment Title II of the Unfunded Mandates Reform Act of 1995 (Pub. L. 104–4) 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 an expenditure of $100 million or more (in 1995 dollars) 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.’’ The FAA currently uses an inflation-adjusted value of $155 million in lieu of $100 million. This proposed rule does not contain such a mandate; therefore, the requirements of Title II of the Act do not apply. E. Paperwork Reduction Act The Paperwork Reduction Act of 1995 (44 U.S.C. 3507(d)) requires that the FAA consider the impact of paperwork and other information collection PO 00000 Frm 00004 Fmt 4702 Sfmt 4702 burdens imposed on the public. The FAA has determined that there would be no new requirement for information collection associated with this proposed rule. F. International Compatibility In keeping with U.S. obligations under the Convention on International Civil Aviation, it is FAA policy to conform to International Civil Aviation Organization (ICAO) Standards and Recommended Practices to the maximum extent practicable. The FAA has determined that there are no ICAO Standards and Recommended Practices that correspond to these proposed regulations. G. Environmental Analysis FAA Order 1050.1F identifies FAA actions that are categorically excluded from preparation of an environmental assessment or environmental impact statement under the National Environmental Policy Act in the absence of extraordinary circumstances. The FAA has determined preliminarily that this rulemaking action qualifies for the categorical exclusion identified in paragraph 5–6.6 and involves no extraordinary circumstances. V. Executive Order Determinations A. Executive Order 13771, Reducing Regulation and Controlling Regulatory Costs This rule is not subject to the requirements of E.O. 13771 (82 FR 9339, February 3, 2017) because it is issued with respect to a national security function of the United States. B. Executive Order 13132, Federalism The FAA has analyzed this proposed rule under the principles and criteria of Executive Order 13132, Federalism. The agency has determined that this action would not have a substantial direct effect on the States, or the relationship between the Federal Government and the States, or on the distribution of power and responsibilities among the various levels of government, and, therefore, would not have Federalism implications. C. Executive Order 13211, Regulations That Significantly Affect Energy Supply, Distribution, or Use The FAA analyzed this proposed rule under Executive Order 13211, Actions Concerning Regulations that Significantly Affect Energy Supply, Distribution, or Use (May 18, 2001). The agency has determined that it would not be a ‘‘significant energy action’’ under the executive order and would not be likely to have a significant adverse effect E:\FR\FM\23JYP1.SGM 23JYP1 Federal Register / Vol. 83, No. 141 / Monday, July 23, 2018 / Proposed Rules on the supply, distribution, or use of energy. D. Executive Order 13609, International Cooperation Executive Order 13609, Promoting International Regulatory Cooperation, promotes international regulatory cooperation to meet shared challenges involving health, safety, labor, security, environmental, and other issues and to reduce, eliminate, or prevent unnecessary differences in regulatory requirements. The FAA has analyzed this proposed action under the policies and agency responsibilities of Executive Order 13609, and has determined that this action would have no effect on international regulatory cooperation. VI. Additional Information amozie on DSK3GDR082PROD with PROPOSALS1 A. Comments Invited The FAA invites interested persons to participate in this rulemaking by submitting written comments, data, or views. The agency also invites comments relating to the economic, environmental, energy, or federalism impacts that might result from adopting the proposals in this document. The most helpful comments reference a specific portion of the proposal, explain the reason for any recommended change, and include supporting data. To ensure the docket does not contain duplicate comments, commenters should send only one copy of written comments, or if comments are filed electronically, commenters should submit only one time. The FAA will file in the docket all comments it receives, as well as a report summarizing each substantive public contact with FAA personnel concerning this proposed rulemaking. Before acting on this proposal, the FAA will consider all comments it receives on or before the closing date for comments. The FAA will consider comments filed after the comment period has closed if it is possible to do so without incurring expense or delay. The agency may change this proposal in light of the comments it receives. Proprietary or Confidential Business Information: Commenters should not file proprietary or confidential business information in the docket. Such information must be sent or delivered directly to the person identified in the FOR FURTHER INFORMATION CONTACT section of this document, and marked as proprietary or confidential. If submitting information on a disk or CD–ROM, mark the outside of the disk or CD–ROM, and identify electronically within the disk or CD–ROM the specific information that is proprietary or confidential. VerDate Sep<11>2014 16:31 Jul 20, 2018 Jkt 244001 Under 14 CFR 11.35(b), if the FAA is aware of proprietary information filed with a comment, the agency does not place it in the docket. It is held in a separate file to which the public does not have access, and the FAA places a note in the docket that it has received it. If the FAA receives a request to examine or copy this information, it treats it as any other request under the Freedom of Information Act (5 U.S.C. 552). The FAA processes such a request under Department of Transportation procedures found in 49 CFR part 7. B. Availability of Rulemaking Documents An electronic copy of rulemaking documents may be obtained from the internet by— 1. Searching the Federal eRulemaking Portal (http://www.regulations.gov); 2. Visiting the FAA’s Regulations and Policies web page at http:// www.faa.gov/regulations_policies; or 3. Accessing the Government Printing Office’s web page at http:// www.gpo.gov/fdsys/. Copies may also be obtained by sending 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. Commenters must identify the docket or notice number of this rulemaking. All documents the FAA considered in developing this proposed rule, including economic analyses and technical reports, may be accessed from the internet through the Federal eRulemaking Portal referenced in item (1) above. List of Subjects 14 CFR Part 3 Aviation safety. 14 CFR Part 61 Aircraft, Airmen, Alcohol abuse, Aviation safety, Drug abuse, Recreation and recreation areas, Reporting and recordkeeping requirements, Security measures, Teachers. 14 CFR Part 63 Aircraft, Airman, Alcohol abuse, Aviation safety, Drug abuse, Navigation (air), Reporting and recordkeeping requirements, Security measures. 14 CFR Part 65 Air traffic controllers, Aircraft, Airmen, Airports, Alcohol abuse, Aviation safety, Drug abuse, Reporting and recordkeeping requirements, Security measures. PO 00000 Frm 00005 Fmt 4702 Sfmt 4702 34799 The Proposed Amendment In consideration of the foregoing, the Federal Aviation Administration proposes to amend chapter 1 of title 14, Code of Federal Regulations as follows: PART 3—GENERAL REQUIREMENTS 1. The authority citation for part 3 is revised to read as follows: ■ Authority: 49 U.S.C. 106(g), 40113, 44701, 44704, and 46111. 2. Add a new subpart A heading to read as follows: ■ Subpart A—General Requirements Concerning Type Certificated Products or Products, Parts, Appliances, or Materials That May Be Used on TypeCertificated Products 3. Designate §§ 3.1 and 3.5 as subpart A. ■ 4. Add new subpart B to read as follows: ■ Subpart B—Security Threat Disqualification Sec. 3.200 Effect of TSA notification on a certificate or any part of a certificate held by an individual. 3.205 Effect of TSA notification on applications by individuals for a certificate or any part of a certificate. § 3.200 Effect of TSA notification on a certificate or any part of a certificate held by an individual. When the TSA notifies the FAA that an individual holding a certificate or part of a certificate issued by the FAA poses, or is suspected of posing, a risk of air piracy or terrorism or a threat to airline or passenger safety, the FAA will issue an order amending, modifying, suspending, or revoking any certificate or part of a certificate issued by the FAA. § 3.205 Effect of TSA notification on applications by individuals for a certificate or any part of a certificate. (a) When the TSA notifies the FAA that an individual who has applied for a certificate or any part of a certificate issued by the FAA poses, or is suspected of posing, a risk of air piracy or terrorism or a threat to airline or passenger safety, the FAA will hold the individual’s certificate applications in abeyance pending further notification from the TSA. (b) When the TSA notifies the FAA that the TSA has made a final security threat determination regarding an individual, the FAA will deny all the individual’s certificate applications. Alternatively, if the TSA notifies the FAA that it has withdrawn its security E:\FR\FM\23JYP1.SGM 23JYP1 34800 Federal Register / Vol. 83, No. 141 / Monday, July 23, 2018 / Proposed Rules threat determination, the FAA will continue processing the individual’s applications. Notice of proposed rulemaking (NPRM). ACTION: 5. The authority citation for part 61 continues to read as follows: ■ Authority: 49 U.S.C. 106(f), 106(g), 40113, 44701–44703, 44707, 44709–44711, 44729, 44903, 45102–45103, 45301–45302; Sec. 2307 Pub. L. 114–190, 130 Stat. 615 (49 U.S.C. 44703 note). § 61.18 Security disqualification [Removed and Reserved] ■ 6. Remove and reserve § 61.18. PART 63—CERTIFICATION: FLIGHT CREWMEMBERS OTHER THAN PILOTS 7. 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. § 63.14 Security disqualification [Removed and Reserved] ■ 8. Remove and reserve § 63.14. PART 65—CERTIFICATION: AIRMEN OTHER THAN FLIGHT CREWMEMBERS 9. The authority citation for part 65 continues to read as follows: ■ Authority: 49 U.S.C. 106(f), 106(g). 40113, 44701–44703, 44707, 44709–44711, 45102– 45103, 45301–45302. § 65.14 Security disqualification [Removed and Reserved] ■ We propose to adopt a new airworthiness directive (AD) for certain Bombardier, Inc., Model DHC–8–102, –103, and –106 airplanes; Model DHC– 8–200 series airplanes; and Model DHC– 8–300 series airplanes. This proposed AD was prompted by a report that a certain modification to the auto relight system is incompatible with a certain beta lockout system modification and could result in de-activation of the auto ignition feature of the No. 2 engine. This proposed AD would require an inspection of the auto ignition system and applicable rectification. We are proposing this AD to address the unsafe condition on these products. DATES: We must receive comments on this proposed AD by September 6, 2018. ADDRESSES: You may send comments, using the procedures found in 14 CFR 11.43 and 11.45, by any of the following methods: • Federal eRulemaking Portal: Go to http://www.regulations.gov. Follow the instructions for submitting comments. • Fax: 202–493–2251. • Mail: U.S. Department of Transportation, Docket Operations, M–30, West Building Ground Floor, Room W12–140, 1200 New Jersey Avenue SE, Washington, DC 20590. • Hand Delivery: Deliver to Mail address above between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. For service information identified in this NPRM, contact Bombardier, Inc., Q-Series Technical Help Desk, 123 Garratt Boulevard, Toronto, Ontario M3K 1Y5, Canada; telephone 416–375– 4000; fax 416–375–4539; email thd.qseries@aero.bombardier.com; internet http://www.bombardier.com. You may view this service information at the FAA, Transport Standards Branch, 2200 South 216th St, Des Moines, WA. For information on the availability of this material at the FAA, call 206–231–3195. SUMMARY: PART 61—CERTIFICATION: PILOTS, FLIGHT INSTRUCTORS, AND GROUND INSTRUCTORS 10. Remove and reserve § 65.14. Issued, under the authority provided by 49 U.S.C. 106(f), 46111, and 44903(j) in Washington, DC, on July 16, 2018. Charles Trippe, Chief Counsel. [FR Doc. 2018–15534 Filed 7–20–18; 8:45 am] BILLING CODE 4910–13–P DEPARTMENT OF TRANSPORTATION Examining the AD Docket Federal Aviation Administration You may examine the AD docket on the internet at http:// www.regulations.gov by searching for and locating Docket No. FAA–2018– 0635; or in person at the Docket Management Facility between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The AD docket contains this NPRM, the regulatory evaluation, any comments received, and other information. The street address for the Docket Operations office (telephone 800–647–5527) is in the ADDRESSES amozie on DSK3GDR082PROD with PROPOSALS1 14 CFR Part 39 [Docket No. FAA–2018–0635; Product Identifier 2017–NM–183–AD] RIN 2120–AA64 Airworthiness Directives; Bombardier, Inc. Airplanes Federal Aviation Administration (FAA), DOT. AGENCY: VerDate Sep<11>2014 16:31 Jul 20, 2018 Jkt 244001 PO 00000 Frm 00006 Fmt 4702 Sfmt 4702 section. Comments will be available in the AD docket shortly after receipt. FOR FURTHER INFORMATION CONTACT: Anthony Flores, Aerospace Engineer, Propulsion and Program Management Section, Chicago ACO Branch, Room 107, 2300 East Devon Avenue, Des Plaines, IL 60018; telephone 847–294– 7140; fax 847–294–7834. SUPPLEMENTARY INFORMATION: Comments Invited We invite you to send any written relevant data, views, or arguments about this proposal. Send your comments to an address listed under the ADDRESSES section. Include ‘‘Docket No. FAA– 2018–0635; Product Identifier 2017– NM–183–AD’’ at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this NPRM. We will consider all comments received by the closing date and may amend this NPRM based on those comments. We will post all comments we receive, without change, to http:// www.regulations.gov, including any personal information you provide. We will also post a report summarizing each substantive verbal contact we receive about this NPRM. Discussion Transport Canada Civil Aviation (TCCA), which is the aviation authority for Canada, has issued Canadian AD CF–2017–21R1, dated June 28, 2017 (referred to after this as the Mandatory Continuing Airworthiness Information, or ‘‘the MCAI’’), to correct an unsafe condition for certain Bombardier, Inc., Model DHC–8–102, –103, and –106 airplanes; Model DHC–8–200 series airplanes; and Model DHC–8–300 series airplanes. The MCAI states: During the incorporation of the Auto Relight modification per Bombardier SB [Service Bulletin] 8–74–02 on an aeroplane with a Beta Lockout System (BLS) installed, it was noticed that if SB 8–74–02 is incorporated in conjunction with, or after the incorporation of BLS SB 8–76–35 ([Canadian] AD CF–2013–15) or SB 8–76–24 (FAA AD 2000–02–13 [Amendment 39–11531 (65 FR 4095, January 26, 2000)]), the #2 engine auto ignition function of the beta lockout system will not be available when the beta lockout system is activated. This condition, if not corrected, may result in a #2 engine uncommanded in-flight shut down. To preclude any future occurrence of the noted deficiency, Bombardier has issued SB 8–74–02 Revision B to highlight its incompatibility with post SB 8–76–35 or 8– 76–24 BLS compliant aeroplanes. In addition, Bombardier issued a new SB, 8–74– 06 for Auto Relight System modification that can be incorporated in conjunction with or E:\FR\FM\23JYP1.SGM 23JYP1

Agencies

[Federal Register Volume 83, Number 141 (Monday, July 23, 2018)]
[Proposed Rules]
[Pages 34795-34800]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-15534]


========================================================================
Proposed Rules
                                                Federal Register
________________________________________________________________________

This section of the FEDERAL REGISTER contains notices to the public of 
the proposed issuance of rules and regulations. The purpose of these 
notices is to give interested persons an opportunity to participate in 
the rule making prior to the adoption of the final rules.

========================================================================


Federal Register / Vol. 83, No. 141 / Monday, July 23, 2018 / 
Proposed Rules

[[Page 34795]]



DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration

14 CFR Parts 3, 61, 63, and 65

[Docket No.: FAA-2018-0656; Notice No. 18-03]
RIN 2120-AL04


Security Threat Disqualification Update

AGENCY: Federal Aviation Administration (FAA), Department of 
Transportation (DOT).

ACTION: Notice of proposed rulemaking (NPRM).

-----------------------------------------------------------------------

SUMMARY: The FAA proposes to amend and consolidate the security threat 
disqualification regulations. This proposed rule would outline the FAA 
actions on certificates or applications for certificates when the 
Transportation Security Administration (TSA) notifies the FAA that an 
individual poses a security threat.

DATES: Send comments on or before August 22, 2018.

ADDRESSES: Send comments identified by docket number FAA-2018-0656 
using any of the following methods:
     Federal eRulemaking Portal: Go to http://www.regulations.gov and follow the online instructions for sending your 
comments electronically.
     Mail: Send comments to Docket Operations, M-30; U.S. 
Department of Transportation, 1200 New Jersey Avenue SE, Room W12-140, 
West Building Ground Floor, Washington, DC 20590-0001.
     Hand Delivery or Courier: Take comments to Docket 
Operations in Room W12-140 of the West Building Ground Floor at 1200 
New Jersey Avenue SE, Washington, DC 20590-0001, between 9 a.m. and 5 
p.m., Monday through Friday, except Federal holidays.
     Fax: Fax comments to Docket Operations at (202) 493-2251.
    Privacy: In accordance with 5 U.S.C. 553(c), DOT solicits comments 
from the public to better inform its rulemaking process. DOT posts 
these comments, without edit, including any personal information the 
commenter provides, to http://www.regulations.gov, as described in the 
system of records notice (DOT/ALL-14 FDMS), which can be reviewed at 
http://www.dot.gov/privacy.
    Docket: Background documents or comments received may be read at 
http://www.regulations.gov at any time. Follow the online instructions 
for accessing the docket or go to the Docket Operations in Room W12-140 
of the West Building Ground Floor at 1200 New Jersey Avenue SE, 
Washington, DC 20590-0001, between 9 a.m. and 5 p.m., Monday through 
Friday, except Federal holidays.

FOR FURTHER INFORMATION CONTACT: For questions concerning this action, 
contact Courtney Freeman, Office of the Chief Counsel, AGC-200, Federal 
Aviation Administration, 800 Independence Avenue SW, Washington, DC 
20591; telephone (202) 267-3073; email [email protected].

SUPPLEMENTARY INFORMATION:

Authority for This Rulemaking

    The FAA's authority to issue rules on aviation safety is found in 
Title 49 of the United States Code. Subtitle I, Section 106, describes 
the authority of the FAA Administrator. Subtitle VII, Aviation 
Programs, describes in more detail the scope of the agency's authority.
    This rulemaking is promulgated under 49 U.S.C. 106(f), which 
establishes the authority of the Administrator to promulgate 
regulations and rules; and 49 U.S.C. 44701(a)(5), which requires the 
Administrator to promote safe flight of civil aircraft in air commerce 
by prescribing regulations and setting minimum standards for other 
practices, methods, and procedures necessary for safety in air commerce 
and national security.
    This rulemaking is also promulgated pursuant to 49 U.S.C. 46111, 
which requires the Administrator to amend, modify, suspend, or revoke 
any certificate or any part of a certificate issued under Title 49 when 
the TSA notifies the FAA that the holder of the certificate poses or is 
suspected of posing a risk of air piracy or terrorism or a threat to 
airline or passenger safety.
    Additionally, this rulemaking is promulgated pursuant to 49 U.S.C. 
44903(j)(2)(D)(i), which requires that TSA coordinate with the 
Administrator of the FAA to ensure that individuals are screened before 
being certificated by the FAA. Thus, the FAA will not issue a 
certificate to screened individuals identified by TSA as security 
threats.

I. Executive Summary

A. Purpose of the Regulatory Action

    This proposed rulemaking would amend and consolidate the current 
FAA security threat disqualification regulations found in 14 CFR 61.18, 
63.14, and 65.14 into part 3 of Title 14 of the Code of Federal 
Regulations (14 CFR). Those regulations provide, in sum, that no person 
is eligible to hold a certificate, rating, or authorization issued 
under each of those parts when the TSA notifies the FAA in writing of 
an adverse security threat determination.
    Since 2004, the FAA has not applied these regulations to United 
States (U.S.), citizens or resident aliens, instead relying on the 
statutory authority in 49 U.S.C. 46111, Public Law 108-176 (Dec. 12, 
2003), and 49 U.S.C. 44903(j)(2)(D)(i), Public Law 108-458 (Dec. 17, 
2004), enacted after the FAA issued its security threat 
disqualification regulations. Section 46111 directs the FAA to take 
action against ``any part of a certificate'' issued under Title 49 in 
response to a security threat determination by the TSA and also 
provides a hearing and appeal process for U.S. citizens. Section 
44903(j)(2)(D)(i) provides that individuals will be screened against 
the consolidated and integrated terrorist watchlist maintained by the 
federal government prior to being certificated by the FAA. This 
proposed rule is necessary to conform the above-cited FAA regulations 
to 49 U.S.C. 46111 and 44903(j)(2)(D)(i) and to clarify the FAA's 
process for preventing the issuance of certificates to applicants that 
the TSA finds to be security threats.
    Consistent with 49 U.S.C. 46111 and 44903(j)(2)(D)(i), the proposed 
security threat regulations describe the actions the FAA will take on a 
certificate or certificate application when it receives notification 
from the TSA that an individual is a security threat. As with current 
practice under the statute, the FAA would not issue a certificate or 
any part of a certificate when the TSA has notified the FAA in writing 
that the individual poses, or is suspected of

[[Page 34796]]

posing, a risk of air piracy or terrorism or a threat to airline or 
passenger safety. For certificates already issued, the FAA would amend, 
modify, suspend, or revoke any FAA-issued certificate or part of such 
certificate upon written notification from the TSA that the certificate 
holder poses, or is suspected of posing a risk of air piracy or 
terrorism or a threat to airline or passenger safety.\1\
---------------------------------------------------------------------------

    \1\ The TSA directs what specific action the FAA should take on 
the certificate and includes that information in the letter 
notifying the FAA of the security threat determination.
---------------------------------------------------------------------------

B. Costs and Benefits

    This rule is not expected to impose anything other than minimal 
cost, if any. The proposed regulations would merely codify existing, 
statutorily-mandated procedures that FAA has been following since 2004. 
This proposed rule, therefore, would not have significant economic 
impact within the meaning of Executive Order 12866 and DOT's policies 
and procedures.

II. Background

A. Current Statutory and Regulatory Structure Governing Security Threat 
Disqualification

    In response to the attack on the United States on September 11, 
2001, the FAA issued the current security threat disqualification 
regulations to prevent a possible imminent hazard to aircraft, persons, 
and property within the United States. Specifically, in 2003, the FAA, 
in consultation with the TSA, determined that security threat 
disqualification regulations were necessary to minimize security 
threats and potential security vulnerabilities to the fullest extent 
possible. The FAA, the TSA, and other federal security agencies were 
concerned about the potential use of aircraft to carry out further 
terrorist acts in the United States. Accordingly, the FAA issued a 
final rule, Ineligibility for an Airman Certificate Based on Security 
Grounds, 68 FR 3772 (Jan. 24, 2003), providing that an individual 
determined by the TSA to be a security threat is ineligible for airman 
certification and thus cannot not hold an FAA-issued airman 
certificate. The FAA took this action because a person who poses a 
security threat should not be in a position that could be used to take 
actions that are contrary to civil aviation security and, therefore, 
safety in air commerce. These security threat disqualification 
regulations are found in Sec. Sec.  61.18, 63.14, and 65.14.
    Subsequent to the issuance of the current FAA security threat 
disqualification regulations, the President signed into law 49 U.S.C. 
46111 \2\ and 49 U.S.C. 44903(j)(2)(D)(i).\3\ Section 46111 requires 
the FAA to amend, modify, suspend, or revoke certificates or any part 
of a certificate issued under Title 49, when the TSA informs the FAA 
that the holder ``poses, or is suspected of posing, a risk of air 
piracy or terrorism or a threat to airline or passenger safety.'' Under 
section 44903(j)(2)(D)(i), the TSA and the FAA must work together to 
``ensure that individuals are screened . . . before being certificated 
by the [FAA].'' After the passage of these statutes, the FAA did not 
update its regulations, though it did publish in the Federal Register 
its disposition of comments to the 2003 final rule which noted that if 
additional rulemaking was necessary to reflect the statutory 
requirements of 46111, the FAA would utilize notice and comment 
rulemaking.\4\ The FAA's Federal Register document also summarized two 
D.C. Circuit cases from 2004 that sought judicial review of the FAA and 
the TSA's security threat disqualification regulations. In one of those 
cases, Coalition of Airline Pilots Associations v. FAA, 370 F.3d 1184 
(D.C. Cir. 2004), the FAA, the TSA, and the Department of Justice 
pledged not to apply existing regulations to U.S. citizens or resident 
aliens, as further addressed in the Discussion of the Proposal.\5\
---------------------------------------------------------------------------

    \2\ Vision 100--Century of Aviation Reauthorization Act, Public 
Law 108-176, 117 Stat. 2490 (Dec. 12, 2003).
    \3\ Intelligence Reform and Terrorism Prevention Act, Public Law 
108-458, 118 Stat. 3638 (Dec. 17, 2004).
    \4\ Ineligibility for an Airman Certificate Based on Security 
Grounds, 70 FR 25761 (May 16, 2005).
    \5\ Memorandum to the Dockets, TSA Rulemaking Dockets Nos. TSA-
2002-13732 and TSA-2002-13733, Transportation Security 
Administration, U.S. Department of Homeland Security (Mar. 16, 
2004).
---------------------------------------------------------------------------

III. Discussion of the Proposal

A. Scope

    The proposed rule would codify the FAA's authority to amend, 
modify, suspend, and revoke FAA-issued certificates and any part of 
such certificates issued to individuals under Title 49 based on the 
TSA's written notification that a certificate holder poses a security 
threat. The proposed rule would also clarify the FAA's authority to 
deny or hold in abeyance applications for certificates and any parts of 
such certificates when the TSA notifies the FAA that an applicant poses 
a security threat. The proposed rule would implement the security 
threat disqualification requirement mandated in 49 U.S.C. 46111 and 
44903(j)(2)(D)(i).
    Both 49 U.S.C. 46111 and 44903(j)(2)(D)(i), on which this proposed 
rule relies, refer to certificate holders and applicants in terms of 
individuals, rather than entities.\6\ While there is separate statutory 
authority for FAA certificate-action against entities based on TSA 
security threat determinations,\7\ this proposed rule addresses only 
individuals who hold or are applying for certificates issued under 
Title 49 of the United States Code.
---------------------------------------------------------------------------

    \6\ See, e.g., 49 U.S.C. 46111(b) (allowing ``individuals'' who 
are U.S. citizens to have a hearing on the record); Sec.  46111(f) 
(``An individual who commences an appeal''); Sec.  46111(g)(3) 
(``upon request of the individual adversely affected by an order of 
the [FAA] Administrator''); 49 U.S.C. 44903(j)(2)(D)(i) (requiring 
screening of ``individuals); Cf. Transportation Security 
Administration (TSA) Vetting of Airmen Certificates and General 
Aviation Airport Access and Security Procedures, DHS OIG (July 
2011), https://www.oig.dhs.gov/assets/Mgmt/OIG_11-96_Jul11.pdf; 
Memorandum To The Dockets, TSA Rulemaking Dockets Nos. TSA-2002-
13732 and TSA-2002-13733, Transportation Security Administration, 
U.S. Department of Homeland Security (Mar. 16, 2004).
    \7\ For example, 49 U.S.C. 44924, provides for FAA suspension or 
revocation of a repair station's certificate based on a TSA 
determination regarding the repair station's security measures and 
security risk.
---------------------------------------------------------------------------

B. Certificate Applicants

    While 49 U.S.C. 46111 sets out a mechanism by which the FAA handles 
the amendment, modification, suspension, or revocation of an 
individual's certificate, it is silent as to how the FAA should handle 
security threat determinations at the certificate application stage. 
This proposed rule would codify the FAA's process for preventing the 
issuance of certificates to individuals at the application stage when 
the TSA finds the individuals to be security threats. FAA's authority 
to deny or hold in abeyance an individual's certificate application 
based on the TSA's written notification that an individual poses a 
security threat is necessary to implement the intent of 49 U.S.C. 
44903(j)(2)(D)(i), which requires the FAA to coordinate with the TSA to 
ensure that certificate applicants are screened against all appropriate 
records in the consolidated and integrated terrorist watchlist 
maintained by the federal government before being certificated by the 
FAA.
    The FAA must not issue certificates to individuals who the TSA 
finds to be a security threat. The proposed rule would provide that, 
upon notification from the TSA, the FAA would hold in abeyance the 
applications of these individuals while they are provided the

[[Page 34797]]

opportunity to appeal the TSA's security threat determination under the 
TSA's appeal process. The FAA would deny an application only upon the 
TSA's notification of a final security threat determination. 
Alternatively, if the TSA notifies the FAA that it has withdrawn its 
security threat determination, the FAA would continue processing the 
application.

C. Application of Regulations to U.S. Citizens and Resident Aliens

    The FAA proposes to apply the security threat disqualification 
regulations to all individuals, including U.S. citizens and resident 
aliens, who hold FAA-issued certificates or are applying for these 
certificates. This approach would harmonize the proposed security 
threat disqualification regulations with 49 U.S.C. 46111 and 
44903(j)(2)(D)(i). It would also close a gap in the FAA's security 
threat disqualification regulations which are currently not being 
applied to U.S. citizens and resident aliens as a result of a pledge 
made by the FAA and the TSA in the case Coalition of Airline Pilots 
Associations v. FAA, 370 F.3d 1184 (D.C. Cir. 2004). In the Coalition 
of Airline Pilots Associations case, unions representing aviation 
workers raised various challenges to the TSA and the FAA's current 
security threat disqualification regulations. The D.C. Circuit never 
reached the merits of the unions' claims. Instead, the Court dismissed 
the unions' petition for review, finding that intervening events had 
mooted their claims, specifically the new laws enacted by Congress. 
Both the TSA and the FAA pledged that the existing security threat 
regulations would no longer be applied to U.S. citizens or resident 
aliens as a result of the passage of Sec.  46111 which provides a 
different mechanism for TSA security threat determinations and appeal 
procedures for U.S. citizens.\8\ The agencies also noted that when they 
issued new security threat disqualification regulations they would do 
so pursuant to notice and comment rulemaking. Another D.C. Circuit 
decision, decided on the same day as the Coalition of Airline Pilots 
Associations case, upheld the application of the same FAA security 
threat disqualification regulations to non-resident aliens because the 
regulations provide sufficient due process for non-resident aliens. 
Jifry v. FAA, 370 F.3d 1174 (DC Cir. 2004). This proposal would 
establish regulations that apply equally to all certificate holders and 
applicants.
---------------------------------------------------------------------------

    \8\ Memorandum to the Dockets, TSA Rulemaking Dockets Nos. TSA-
2002-13732 and TSA-2002-13733, Transportation Security 
Administration, U.S. Department of Homeland Security (Mar. 16, 
2004).
---------------------------------------------------------------------------

D. TSA Security Threat Determinations and Appeals

    The FAA's certificate denials are generally covered under 49 U.S.C. 
44703 and, therefore, are appealable to the National Transportation 
Safety Board (NTSB). In cases of security threat disqualifications, if 
the certificate action is appealable to the NTSB, the FAA does not 
anticipate that the scope of these appeals would extend beyond an 
examination of the procedural ground for the certificate action or 
application denial because an affected individual would be provided the 
opportunity to challenge the substance of TSA's security threat 
determination under TSA's appeal process.\9\
---------------------------------------------------------------------------

    \9\ The appropriate venue for appealing a certificate action 
based on a security threat determination was also discussed 
substantially in Jifry v. FAA, 370 F.3d 1174 (DC Cir. 2004). The 
court stated that ``Section 46111 makes no provision for NTSB review 
even for citizens, and the Conference Report states that non-
resident aliens `have the right to the appeal procedures that [TSA] 
has already provided for them.' H.R. Conf. Rpt. 108-334 at 152 
(2003). In addition, Sec.  46111(a) requires the FAA to respond 
automatically to TSA threat assessments . . . if these pilots retain 
any right to NTSB review at all, it is no broader than the review 
for procedural regularity that they have received . . .'' Jifry at 
1180.
---------------------------------------------------------------------------

    In the case of a security threat disqualification, the certificate 
action or application denial would be based on the TSA's applicant 
vetting and security threat determinations, as mandated under 49 U.S.C. 
46111 and 44903(j)(2)(D)(i). The FAA's reliance on TSA's vetting and 
security threat determinations is also based on the broad statutory 
authority and responsibility that the Aviation and Transportation 
Security Act (ATSA), Public Law 107-71, (115 Stat. 597, Nov. 19, 2001), 
placed in the office of the Under Secretary of Transportation for 
Security with regard to intelligence information and security threat 
assessments. The FAA is not privy to the basis for the TSA's security 
threat determinations, which often include classified information. 
Therefore, the FAA's certificate actions and application denials are 
based solely on written notification by the TSA of a security threat 
determination against an individual. Accordingly, appeals of the 
security threat determinations made by the TSA are made through the 
TSA's administrative appeal process.\10\
---------------------------------------------------------------------------

    \10\ See 49 U.S.C. 46111. TSA currently is using interim redress 
procedures for U.S. citizen, U.S. non-citizen national, and lawful 
permanent resident certificate holders. While section 46111 does not 
require that TSA provide ALJ review to U.S. non-citizen nationals 
and lawful permanent residents, TSA has chosen to do so in its 
interim procedures. TSA also provides U.S. non-citizen nationals and 
lawful permanent residents with review by the TSA Final Decision 
Maker if those individuals choose to appeal an ALJ Decision.
---------------------------------------------------------------------------

IV. Regulatory Notices and Analyses

A. Regulatory Evaluation

    Changes to Federal regulations must undergo several economic 
analyses. First, Executive Order 12866 and Executive Order 13563 direct 
that each Federal agency shall propose or adopt a regulation only upon 
a reasoned determination that the benefits of the intended regulation 
justify its costs. Second, the Regulatory Flexibility Act of 1980 (Pub. 
L. 96-354) requires agencies to analyze the economic impact of 
regulatory changes on small entities. Third, the Trade Agreements Act 
(Pub. L. 96-39) prohibits agencies from setting standards that create 
unnecessary obstacles to the foreign commerce of the United States. In 
developing U.S. standards, the Trade Act requires agencies to consider 
international standards and, where appropriate, that they be the basis 
of U.S. standards. Fourth, the Unfunded Mandates Reform Act of 1995 
(Pub. L. 104-4) requires agencies to prepare a written assessment of 
the costs, benefits, and other effects of proposed or final rules that 
include a Federal mandate likely to result in the expenditure by State, 
local, or tribal governments, in the aggregate, or by the private 
sector, of $100 million or more annually (adjusted for inflation with 
base year of 1995). This portion of the preamble summarizes the FAA's 
analysis of the economic impacts of this proposed rule.
    The existing security threat disqualification regulations, 14 CFR 
parts 61.18, 63.14, and 65.14, disqualify any person who the TSA has 
found to be a security threat from obtaining an FAA certificate. These 
regulations went into effect on January 24, 2004. A year later, the 
President signed statutory authority in 49 U.S.C. 46111 and 49 U.S.C. 
44903(j)(2)(D)(i) into law. 49 U.S.C. 46111 directs the FAA to take 
action against the holder of any part of a certificate in response to a 
security threat determination by the TSA and also provides an appeal 
process for U.S. citizens. 49 U.S.C. 44903(j)(2)(D)(i) directs TSA to 
coordinate with the FAA to ensure that individuals are screened against 
a consolidated and integrated terrorist watchlist maintained by the 
federal government prior to being certificated by the FAA. The existing 
regulations and the statutory authority are virtually identical, and 
the FAA has been relying on the statutory authority, not the existing 
regulations, to prevent

[[Page 34798]]

individuals who are security threats from obtaining or holding a 
certificate. The FAA has not updated its regulations since the 
enactment of statutory authority 49 U.S.C. 46111 and 49 U.S.C. 
44903(j)(2)(D)(i). Since there are no new requirements in the proposed 
rule, the expected outcome would be a minimal cost, if any, and a full 
regulatory evaluation was not prepared. The FAA requests comments with 
supporting justification about the FAA determination of minimal 
economic impact.
    The FAA has, therefore, determined that this proposed rule is not a 
``significant regulatory action'' as defined in section 3(f) of 
Executive Order 12866, and is not ``significant'' as defined in DOT's 
Regulatory Policies and Procedures.

B. Regulatory Flexibility Determination

    The Regulatory Flexibility Act of 1980 (Pub. L. 96-354) (RFA) 
establishes ``as a principle of regulatory issuance that agencies shall 
endeavor, consistent with the objectives of the rule and of applicable 
statutes, to fit regulatory and informational requirements to the scale 
of the businesses, organizations, and governmental jurisdictions 
subject to regulation.'' To achieve this principle, agencies are 
required to solicit and consider flexible regulatory proposals and to 
explain the rationale for their actions to assure that such proposals 
are given serious consideration. The RFA covers a wide-range of small 
entities, including small businesses, not-for-profit organizations, and 
small governmental jurisdictions.
    Agencies must perform a review to determine whether a rule will 
have a significant economic impact on a substantial number of small 
entities. If the agency determines that it will, the agency must 
prepare a regulatory flexibility analysis as described in the RFA. 
However, if an agency determines that a rule is not expected to have a 
significant economic impact on a substantial number of small entities, 
section 605(b) of the RFA provides that the head of the agency may so 
certify and a regulatory flexibility analysis is not required. The 
certification must include a statement providing the factual basis for 
this determination, and the reasoning should be clear.
    The proposed rule provides similar requirements found in the 
existing security threat disqualification regulations in 14 CFR 61.18, 
63.14, and 65.14, and statutory authority located at 49 U.S.C. 46111 
and 49 U.S.C. 44903(j)(2)(D)(i). Thus, the proposed rule would not 
impose any new costs to the industry. The expected outcome would be a 
minimal economic impact on any small entity affected by this rulemaking 
action.
    If an agency determines that a rulemaking will not result in a 
significant economic impact on a substantial number of small entities, 
the head of the agency may so certify under section 605(b) of the RFA. 
Therefore, as provided in section 605(b), the head of the FAA certifies 
that this proposed rulemaking would not result in a significant 
economic impact on a substantial number of small entities.

C. International Trade Impact Assessment

    The Trade Agreements Act of 1979 (Pub. L. 96-39), as amended by the 
Uruguay Round Agreements Act (Pub. L. 103-465), prohibits Federal 
agencies from establishing standards or engaging in related activities 
that create unnecessary obstacles to the foreign commerce of the United 
States. Pursuant to these Acts, the establishment of standards is not 
considered an unnecessary obstacle to the foreign commerce of the 
United States, so long as the standard has a legitimate domestic 
objective, such as the protection of safety, and does not operate in a 
manner that excludes imports that meet this objective. 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 proposed rule and determined that 
the objective of the rule is for the safety of the American public and 
is therefore not considered an unnecessary obstacle to the foreign 
commerce of the United States.

D. Unfunded Mandates Assessment

    Title II of the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-
4) 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 an expenditure of $100 million or more 
(in 1995 dollars) 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.'' The FAA currently 
uses an inflation-adjusted value of $155 million in lieu of $100 
million. This proposed rule does not contain such a mandate; therefore, 
the requirements of Title II of the Act do not apply.

E. Paperwork Reduction Act

    The Paperwork Reduction Act of 1995 (44 U.S.C. 3507(d)) requires 
that the FAA consider the impact of paperwork and other information 
collection burdens imposed on the public. The FAA has determined that 
there would be no new requirement for information collection associated 
with this proposed rule.

F. International Compatibility

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

G. Environmental Analysis

    FAA Order 1050.1F identifies FAA actions that are categorically 
excluded from preparation of an environmental assessment or 
environmental impact statement under the National Environmental Policy 
Act in the absence of extraordinary circumstances. The FAA has 
determined preliminarily that this rulemaking action qualifies for the 
categorical exclusion identified in paragraph 5-6.6 and involves no 
extraordinary circumstances.

V. Executive Order Determinations

A. Executive Order 13771, Reducing Regulation and Controlling 
Regulatory Costs

    This rule is not subject to the requirements of E.O. 13771 (82 FR 
9339, February 3, 2017) because it is issued with respect to a national 
security function of the United States.

B. Executive Order 13132, Federalism

    The FAA has analyzed this proposed rule under the principles and 
criteria of Executive Order 13132, Federalism. The agency has 
determined that this action would not have a substantial direct effect 
on the States, or the relationship between the Federal Government and 
the States, or on the distribution of power and responsibilities among 
the various levels of government, and, therefore, would not have 
Federalism implications.

C. Executive Order 13211, Regulations That Significantly Affect Energy 
Supply, Distribution, or Use

    The FAA analyzed this proposed rule under Executive Order 13211, 
Actions Concerning Regulations that Significantly Affect Energy Supply, 
Distribution, or Use (May 18, 2001). The agency has determined that it 
would not be a ``significant energy action'' under the executive order 
and would not be likely to have a significant adverse effect

[[Page 34799]]

on the supply, distribution, or use of energy.

D. Executive Order 13609, International Cooperation

    Executive Order 13609, Promoting International Regulatory 
Cooperation, promotes international regulatory cooperation to meet 
shared challenges involving health, safety, labor, security, 
environmental, and other issues and to reduce, eliminate, or prevent 
unnecessary differences in regulatory requirements. The FAA has 
analyzed this proposed action under the policies and agency 
responsibilities of Executive Order 13609, and has determined that this 
action would have no effect on international regulatory cooperation.

VI. Additional Information

A. Comments Invited

    The FAA invites interested persons to participate in this 
rulemaking by submitting written comments, data, or views. The agency 
also invites comments relating to the economic, environmental, energy, 
or federalism impacts that might result from adopting the proposals in 
this document. The most helpful comments reference a specific portion 
of the proposal, explain the reason for any recommended change, and 
include supporting data. To ensure the docket does not contain 
duplicate comments, commenters should send only one copy of written 
comments, or if comments are filed electronically, commenters should 
submit only one time.
    The FAA will file in the docket all comments it receives, as well 
as a report summarizing each substantive public contact with FAA 
personnel concerning this proposed rulemaking. Before acting on this 
proposal, the FAA will consider all comments it receives on or before 
the closing date for comments. The FAA will consider comments filed 
after the comment period has closed if it is possible to do so without 
incurring expense or delay. The agency may change this proposal in 
light of the comments it receives.
    Proprietary or Confidential Business Information: Commenters should 
not file proprietary or confidential business information in the 
docket. Such information must be sent or delivered directly to the 
person identified in the FOR FURTHER INFORMATION CONTACT section of 
this document, and marked as proprietary or confidential. If submitting 
information on a disk or CD-ROM, mark the outside of the disk or CD-
ROM, and identify electronically within the disk or CD-ROM the specific 
information that is proprietary or confidential.
    Under 14 CFR 11.35(b), if the FAA is aware of proprietary 
information filed with a comment, the agency does not place it in the 
docket. It is held in a separate file to which the public does not have 
access, and the FAA places a note in the docket that it has received 
it. If the FAA receives a request to examine or copy this information, 
it treats it as any other request under the Freedom of Information Act 
(5 U.S.C. 552). The FAA processes such a request under Department of 
Transportation procedures found in 49 CFR part 7.

B. Availability of Rulemaking Documents

    An electronic copy of rulemaking documents may be obtained from the 
internet by--
    1. Searching the Federal eRulemaking Portal (http://www.regulations.gov);
    2. Visiting the FAA's Regulations and Policies web page at http://www.faa.gov/regulations_policies; or
    3. Accessing the Government Printing Office's web page at http://www.gpo.gov/fdsys/.
    Copies may also be obtained by sending 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. 
Commenters must identify the docket or notice number of this 
rulemaking.
    All documents the FAA considered in developing this proposed rule, 
including economic analyses and technical reports, may be accessed from 
the internet through the Federal eRulemaking Portal referenced in item 
(1) above.

List of Subjects

14 CFR Part 3

    Aviation safety.

14 CFR Part 61

    Aircraft, Airmen, Alcohol abuse, Aviation safety, Drug abuse, 
Recreation and recreation areas, Reporting and recordkeeping 
requirements, Security measures, Teachers.

14 CFR Part 63

    Aircraft, Airman, Alcohol abuse, Aviation safety, Drug abuse, 
Navigation (air), Reporting and recordkeeping requirements, Security 
measures.

14 CFR Part 65

    Air traffic controllers, Aircraft, Airmen, Airports, Alcohol abuse, 
Aviation safety, Drug abuse, Reporting and recordkeeping requirements, 
Security measures.

The Proposed Amendment

    In consideration of the foregoing, the Federal Aviation 
Administration proposes to amend chapter 1 of title 14, Code of Federal 
Regulations as follows:

PART 3--GENERAL REQUIREMENTS

0
1. The authority citation for part 3 is revised to read as follows:

    Authority: 49 U.S.C. 106(g), 40113, 44701, 44704, and 46111.

0
2. Add a new subpart A heading to read as follows:

Subpart A--General Requirements Concerning Type Certificated 
Products or Products, Parts, Appliances, or Materials That May Be 
Used on Type-Certificated Products

0
3. Designate Sec. Sec.  3.1 and 3.5 as subpart A.
0
4. Add new subpart B to read as follows:

Subpart B--Security Threat Disqualification

Sec.
3.200 Effect of TSA notification on a certificate or any part of a 
certificate held by an individual.
3.205 Effect of TSA notification on applications by individuals for 
a certificate or any part of a certificate.


Sec.  3.200  Effect of TSA notification on a certificate or any part of 
a certificate held by an individual.

    When the TSA notifies the FAA that an individual holding a 
certificate or part of a certificate issued by the FAA poses, or is 
suspected of posing, a risk of air piracy or terrorism or a threat to 
airline or passenger safety, the FAA will issue an order amending, 
modifying, suspending, or revoking any certificate or part of a 
certificate issued by the FAA.


Sec.  3.205  Effect of TSA notification on applications by individuals 
for a certificate or any part of a certificate.

    (a) When the TSA notifies the FAA that an individual who has 
applied for a certificate or any part of a certificate issued by the 
FAA poses, or is suspected of posing, a risk of air piracy or terrorism 
or a threat to airline or passenger safety, the FAA will hold the 
individual's certificate applications in abeyance pending further 
notification from the TSA.
    (b) When the TSA notifies the FAA that the TSA has made a final 
security threat determination regarding an individual, the FAA will 
deny all the individual's certificate applications. Alternatively, if 
the TSA notifies the FAA that it has withdrawn its security

[[Page 34800]]

threat determination, the FAA will continue processing the individual's 
applications.

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

0
5. The authority citation for part 61 continues to read as follows:

    Authority: 49 U.S.C. 106(f), 106(g), 40113, 44701-44703, 44707, 
44709-44711, 44729, 44903, 45102-45103, 45301-45302; Sec. 2307 Pub. 
L. 114-190, 130 Stat. 615 (49 U.S.C. 44703 note).


Sec.  61.18  Security disqualification [Removed and Reserved]

0
6. Remove and reserve Sec.  61.18.

PART 63--CERTIFICATION: FLIGHT CREWMEMBERS OTHER THAN PILOTS

0
7. 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.


Sec.  63.14  Security disqualification [Removed and Reserved]

0
8. Remove and reserve Sec.  63.14.

PART 65--CERTIFICATION: AIRMEN OTHER THAN FLIGHT CREWMEMBERS

0
9. The authority citation for part 65 continues to read as follows:

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


Sec.  65.14  Security disqualification [Removed and Reserved]

0
10. Remove and reserve Sec.  65.14.

    Issued, under the authority provided by 49 U.S.C. 106(f), 46111, 
and 44903(j) in Washington, DC, on July 16, 2018.
Charles Trippe,
Chief Counsel.
[FR Doc. 2018-15534 Filed 7-20-18; 8:45 am]
BILLING CODE 4910-13-P