Security Threat Disqualification Update, 42799-42804 [2019-17494]

Download as PDF 42799 Rules and Regulations Federal Register Vol. 84, No. 160 Monday, August 19, 2019 This section of the FEDERAL REGISTER contains regulatory documents having general applicability and legal effect, most of which are keyed to and codified in the Code of Federal Regulations, which is published under 50 titles pursuant to 44 U.S.C. 1510. DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Parts 3, 61, 63, and 65 [Docket No.: FAA–2018–0656; Amendment Nos. 3–2, 61–143, 63–42, and 65–59] The Code of Federal Regulations is sold by the Superintendent of Documents. RIN 2120–AL04 DEPARTMENT OF AGRICULTURE Security Threat Disqualification Update Rural Housing Service AGENCY: Federal Aviation Administration (FAA), Department of Transportation (DOT). ACTION: Final rule. 7 CFR Part 3555 RIN 0575–AD10 AGENCY: ACTION: Rural Housing Service, USDA. Final rule; correction. On July 22, 2019, the Rural Housing Service (RHS) published a final rule concerning construction to permanent loan financing, repair or rehabilitation financing, and the removal of a maximum the interest rate cap for the Single Family Housing Guaranteed Loan Program. The effective date was published as August 21, 2019 and is being deferred to October 1, 2019. SUMMARY: DATES: Effective on August 21, 2019. FOR FURTHER INFORMATION CONTACT: Joaquı´n Tremols, Director, Single Family Housing Guaranteed Loan Division, USDA, Rural Development, 1400 Independence Avenue SW, Room 2250, Stop 0784, Washington, DC 20250, telephone (202) 720–1465, Email: joaquin.tremols@wdc.usda.gov. SUPPLEMENTARY INFORMATION: Correction In FR Doc. 19–15450, appearing on page 35003 in the Federal Register of Monday, July 22, 2019, correct DATES caption to read: jspears on DSK3GMQ082PROD with RULES DATES: Effective on October 1, 2019. Bruce W. Lammers, Administrator, Rural Housing Service. [FR Doc. 2019–17683 Filed 8–16–19; 8:45 am] BILLING CODE 3410–XV–P VerDate Sep<11>2014 15:43 Aug 16, 2019 The FAA is amending and consolidating the security threat disqualification regulations. This final rule establishes the FAA’s procedures in regulation for amending, modifying, suspending, and revoking FAA-issued certificates and any part of such certificates issued to individuals based on written notification by the Transportation Security Administration (TSA) that a certificate holder poses a security threat. The final rule also clarifies the FAA’s process for denying or holding in abeyance applications for certificates and any parts of such certificates when the TSA notifies the FAA that an applicant poses a security threat. DATES: Effective October 18, 2019. ADDRESSES: For information on where to obtain copies of rulemaking documents and other information related to this final rule, see ‘‘How To Obtain Additional Information’’ in the SUPPLEMENTARY INFORMATION section of this document. 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: SUMMARY: Single Family Housing Guaranteed Loan Program; Correction Jkt 247001 Authority for This Rulemaking The FAA’s authority to issue rules on aviation safety is found in Title 49 of the United States Code (49 U.S.C). 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. PO 00000 Frm 00001 Fmt 4700 Sfmt 4700 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 a screened individual identified by TSA as a security threat. I. Executive Summary A. Purpose of the Regulatory Action This rulemaking amends the current FAA security threat disqualification regulations in title 14 of the Code of Federal Regulations (14 CFR) §§ 61.18, 63.14, and 65.14 and consolidates them into part 3 of 14 CFR. Those regulations provide, in sum, that no person is eligible to hold a certificate, rating, or authorization issued under each corresponding or respective part 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 (December 12, 2003), and 49 U.S.C. 44903(j)(2)(D)(i), Public Law 108–458 (December 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 E:\FR\FM\19AUR1.SGM 19AUR1 42800 Federal Register / Vol. 84, No. 160 / Monday, August 19, 2019 / Rules and Regulations 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 final rule is necessary to conform the previously-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 security threat regulations in this final rule 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. The FAA will 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 posing, a risk of air piracy or terrorism or a threat to airline or passenger safety. For certificates already issued, the FAA will 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 The final rule provides similar requirements found in the existing security threat disqualification regulations. Thus, the final rule will not impose any new costs to the industry. jspears on DSK3GMQ082PROD with RULES II. Background A. Current Statutory and Regulatory Structure Governing Security Threat Disqualification In response to the attack on the U.S. 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 1 The TSA directs the 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 15:43 Aug 16, 2019 Jkt 247001 FAA issued a final rule, Ineligibility for an Airman Certificate Based on Security Grounds, 68 FR 3772 (January 24, 2003). This 2003 final rule provides that an individual determined by the TSA to be a security threat is ineligible for airman certification and thus cannot 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 current §§ 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 § 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 enactment of these statutory provisions, the FAA did not update its regulations. However, the FAA did publish in the Federal Register its disposition of comments to the 2003 final rule.4 In the comment disposition, the FAA noted that, if additional rulemaking was necessary to reflect the statutory requirements of § 46111, the FAA would utilize notice and comment rulemaking. In addition, the FAA summarized two D.C. Circuit cases from 2004 that sought judicial review of the FAA and the TSA 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 that they would not apply existing regulations to U.S. citizens or resident aliens. This case is further addressed in the Discussion of Final Rule section of this preamble.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). PO 00000 Frm 00002 Fmt 4700 Sfmt 4700 B. Summary of the Notice of Proposed Rulemaking The FAA published the Notice of Proposed Rulemaking (NPRM) on July 23, 2018.6 Generally, the proposal would establish in regulation the security threat disqualification requirement mandated in 49 U.S.C. 46111 and 44903(j)(2)(D)(i). In the NPRM, the FAA proposed to establish in regulation the FAA’s process for amending, modifying, suspending, and revoking 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 FAA also proposed to clarify the FAA’s process for denying or holding in abeyance applications for certificates and any parts of such certificates when the TSA notifies the FAA that an applicant poses a security threat. C. General Overview of Comments The FAA received one comment on the NPRM, and it was not within the scope of the proposal. III. Discussion of Final Rule A. Scope The final rule codifies, in 14 CFR, 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 of the United States Code based on the TSA’s written notification that a certificate holder poses a security threat. The final rule also clarifies 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 final rule also codifies 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 rule relies, refer to certificate holders and applicants in terms of individuals, rather than entities.7 Accordingly, this 6 83 FR 34795 (July 23, 2018) 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 See, E:\FR\FM\19AUR1.SGM 19AUR1 Federal Register / Vol. 84, No. 160 / Monday, August 19, 2019 / Rules and Regulations final rule addresses only individuals who hold or are applying for certificates issued under Title 49. There is separate statutory authority for FAA certificate action against entities based on TSA security threat determinations.8 jspears on DSK3GMQ082PROD with RULES 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 final rule codifies the FAA’s current process for preventing the issuance of any certificate to an individual at the application stage when the TSA finds the individual to be a security threat. The 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 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 any individual who the TSA finds to be a security threat. This final rule provides that, upon notification from the TSA, the FAA would hold in abeyance the individual’s application(s) during an appeal to the TSA of its security threat determination. The FAA will 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 will continue processing the application. and resident aliens pursuant to a pledge made by the FAA and the TSA as a result of Coalition of Airline Pilots Associations v. FAA, 370 F.3d 1184 (D.C. Cir. 2004). In Coalition of Airline Pilots Associations, unions representing aviation workers raised various challenges to the current TSA and the FAA 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 enactment of 49 U.S.C. 46111, which provides a different mechanism for TSA security threat determinations and appeal procedures for U.S. citizens.9 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 Coalition of Airline Pilots Associations, 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 (D.C. Cir. 2004). This final rule establishes regulations that apply equally to all certificate holders and applicants. C. Application of Regulations to U.S. Citizens and Resident Aliens The FAA will 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 will conform the security threat disqualification regulations with 49 U.S.C. 46111 and 44903(j)(2)(D)(i). It will also close a gap in the FAA’s security threat disqualification regulations which are currently not applied to U.S. citizens D. TSA Security Threat Determinations and Appeals In the case of a security threat disqualification, the certificate action or application denial will be based solely on the TSA’s applicant vetting and security threat determinations, as mandated under 49 U.S.C. 46111 and 44903(j)(2)(D)(i). TSA’s vetting and security threat determination authority is provided for in the Aviation and Transportation Security Act, Public Law 107–71 (115 stat. 597, November 19, 2001). The FAA relies on TSA to make these security threat determinations and is not privy to the evidentiary basis for them. 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 8 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. 9 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 15:43 Aug 16, 2019 Jkt 247001 PO 00000 Frm 00003 Fmt 4700 Sfmt 4700 42801 threat determinations made by the TSA are made through the TSA’s administrative appeal process.10 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 will extend beyond an examination of the procedural ground for the certificate action or application denial because an affected individual will be provided the opportunity to challenge the substance of TSA’s security threat determination under TSA’s appeal process.11 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. 10 See 49 U.S.C. 46111. TSA currently is using interim redress procedures for U.S. citizens, U.S. non-citizen nationals, and lawful permanent resident certificate holders. While § 46111 does not require that TSA provide review by an Administrative Law Judge (ALJ) 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’s decision. 11 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 (D.C. 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. E:\FR\FM\19AUR1.SGM 19AUR1 42802 Federal Register / Vol. 84, No. 160 / Monday, August 19, 2019 / Rules and Regulations jspears on DSK3GMQ082PROD with RULES 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 final rule. The existing security threat disqualification regulations in 14 CFR 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, 2003. A year later, the authority in 49 U.S.C. 46111 and 49 U.S.C. 44903(j)(2)(D)(i) became law. Section 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. Section 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 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 final rule, the expected outcome will be a minimal cost, if any. The FAA has, therefore, determined that this final rule is not a ‘‘significant regulatory action’’ as defined in section 3(f) of Executive Order 12866. 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- VerDate Sep<11>2014 15:43 Aug 16, 2019 Jkt 247001 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 final rule provides requirements based on the existing statutory authority located at 49 U.S.C. 46111 and 49 U.S.C. 44903(j)(2)(D)(i). Thus, the final rule will 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 rulemaking will 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 U.S., 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 final rule and determined that the objective of the rule is for the safety of the American public and is therefore not considered an PO 00000 Frm 00004 Fmt 4700 Sfmt 4700 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 final 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 is no new requirement for information collection associated with this final rule. F. International Compatibility and Cooperation 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 this final rule. 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 this rulemaking action qualifies for the categorical exclusion identified in paragraph 5–6.6 and involves no extraordinary circumstances. H. Congressional Review Act Pursuant to the Congressional Review Act (5 U.S.C. 801 et seq.), the Office of Information and Regulatory Affairs designated this rule as not a ‘major rule’, as defined by 5 U.S.C. 804(2). E:\FR\FM\19AUR1.SGM 19AUR1 Federal Register / Vol. 84, No. 160 / Monday, August 19, 2019 / Rules and Regulations 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 final rule under the principles and criteria of Executive Order 13132, Federalism. The agency determined that this action will 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, does not have Federalism implications. C. Executive Order 13211, Regulations That Significantly Affect Energy Supply, Distribution, or Use The FAA analyzed this final 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 is not a ‘‘significant energy action’’ under the executive order and it is not likely to have a significant adverse effect 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 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. jspears on DSK3GMQ082PROD with RULES VI. How To Obtain Additional Information A. Rulemaking Documents An electronic copy of a rulemaking document may be obtained by using the internet— 1. Search the Federal eRulemaking Portal (https://www.regulations.gov); 2. Visit the FAA’s Regulations and Policies web page at https:// www.faa.gov/regulations_policies/ or 3. Access the Government Printing Office’s web page at https:// www.gpo.gov/fdsys/. VerDate Sep<11>2014 15:43 Aug 16, 2019 Jkt 247001 Copies may also be obtained by sending a request (identified by notice, amendment, or docket number of this rulemaking) to the Federal Aviation Administration, Office of Rulemaking, ARM–1, 800 Independence Avenue SW, Washington, DC 20591, or by calling (202) 267–9677. B. Comments Submitted to the Docket Comments received may be viewed by going to https://www.regulations.gov and following the online instructions to search the docket number for this action. Anyone is able to search the electronic form of all comments received into any of the FAA’s 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.). C. Small Business Regulatory Enforcement Fairness Act The Small Business Regulatory Enforcement Fairness Act (SBREFA) of 1996 requires FAA to comply with small entity requests for information or advice about compliance with statutes and regulations within its jurisdiction. A small entity with questions regarding this document, may contact its local FAA official, or the person listed under the FOR FURTHER INFORMATION CONTACT heading at the beginning of the preamble. To find out more about SBREFA on the internet, visit https:// www.faa.gov/regulations_policies/ rulemaking/sbre_act/. 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 Amendment In consideration of the foregoing, the Federal Aviation Administration amends chapter 1 of title 14, Code of Federal Regulations as follows: PO 00000 Frm 00005 Fmt 4700 Sfmt 4700 42803 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 to part 3 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. Redesignate §§ 3.1 and 3.5 to subpart A. ■ 4. Add new subpart B to read as follows: ■ Subpart B—Security Threat Disqualification Sec. 3.200 Effect of Transportation Security Administration notification on a certificate or any part of a certificate held by an individual. 3.205 Effect of Transportation Security Administration notification on applications by individuals for a certificate or any part of a certificate. § 3.200 Effect of Transportation Security Administration notification on a certificate or any part of a certificate held by an individual. When the Transportation Security Administration (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 Transportation Security Administration 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 threat determination, the FAA will E:\FR\FM\19AUR1.SGM 19AUR1 42804 Federal Register / Vol. 84, No. 160 / Monday, August 19, 2019 / Rules and Regulations continue processing the individual’s applications. PART 61—CERTIFICATION: PILOTS, FLIGHT INSTRUCTORS, AND GROUND INSTRUCTORS 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 ■ [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 ■ [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 ■ [Removed and Reserved] 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 August 1, 2019. Daniel K. Elwell, Acting Administrator. [FR Doc. 2019–17494 Filed 8–16–19; 8:45 am] BILLING CODE 4910–13–P DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 25 jspears on DSK3GMQ082PROD with RULES [Docket No. FAA–2019–0312; Special Conditions No. 25–755–SC] Special Conditions: Mitsubishi Aircraft Corporation Model MRJ–200 Airplane; Airplane Electronic-System Security Protection From Unauthorized Internal and External Access Federal Aviation Administration (FAA), DOT. ACTION: Final special conditions; request for comments. AGENCY: VerDate Sep<11>2014 15:43 Aug 16, 2019 Jkt 247001 These special conditions are issued for the Mitsubishi Aircraft Corporation (Mitsubishi) Model MRJ– 200 airplane. This airplane will have a novel or unusual design feature when compared to the state of technology envisioned in the airworthiness standards for transport category airplanes. This design feature is avionics that allow internal and external connection to previously isolated data networks, which are connected to systems that perform functions required for the safe operation of the airplane. This feature creates a potential for unauthorized persons to access the aircraft-control domain and airline information-services domain, and presents security vulnerabilities related to the introduction of computer viruses and worms, user errors, and intentional sabotage of airplane electronic assets (networks, systems, and databases). The applicable airworthiness regulations do not contain adequate or appropriate safety standards for this design feature. These special conditions contain the additional safety standards that the Administrator considers necessary to establish a level of safety equivalent to that established by the existing airworthiness standards. DATES: This action is effective on Mitsubishi on August 19, 2019. Send comments on or before October 3, 2019. ADDRESSES: Send comments identified by Docket No. FAA–2019–0312 using any of the following methods: • Federal eRegulations Portal: Go to https://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 (DOT), 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, 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: The FAA will post all comments it receives, without change, to https://www.regulations.gov/, including any personal information the commenter provides. Using the search function of the docket website, anyone can find and read the electronic form of all comments received into any FAA docket, including the name of the individual sending the comment (or signing the comment for an association, SUMMARY: PO 00000 Frm 00006 Fmt 4700 Sfmt 4700 business, labor union, etc.). DOT’s complete Privacy Act Statement can be found in the Federal Register published on April 11, 2000 (65 FR 19477–19478). Docket: Background documents or comments received may be read at https://www.regulations.gov/ at any time. Follow the online instructions for accessing the docket or go to Docket Operations in Room W12–140 of the West Building Ground Floor at 1200 New Jersey Avenue SE, Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. FOR FURTHER INFORMATION CONTACT: Varun Khanna, Airplane and Flight Crew Interface Section, AIR–671, Transport Standards Branch, Policy and Innovation Division, Aircraft Certification Service, Federal Aviation Administration, 2200 South 216th Street, Des Moines, Washington 98198; telephone and fax 206–231–3159; email varun.khanna@faa.gov. SUPPLEMENTARY INFORMATION: The substance of these special conditions previously has been published in the Federal Register for public comment. These special conditions have been derived without substantive change from those previously issued. It is unlikely that prior public comment would result in a significant change from the substance contained herein. Therefore, the FAA has determined that prior public notice and comment are unnecessary, and finds that, for the same reason, good cause exists for adopting these special conditions upon publication in the Federal Register. Comments Invited We invite interested people to take part in this rulemaking by sending written comments, data, or views. The most helpful comments reference a specific portion of the special conditions, explain the reason for any recommended change, and include supporting data. We will consider all comments we receive by the closing date for comments. We may change these special conditions based on the comments we receive. Background On August 19, 2009, Mitsubishi applied for a type certificate for their new Model MRJ–200 airplane. This airplane is a twin-engine, transport category airplane with a passengerseating capacity of 92 and a maximum takeoff weight of 98,767 pounds. Type Certification Basis Under the provisions of title 14, Code of Federal Regulations (14 CFR) 21.17, E:\FR\FM\19AUR1.SGM 19AUR1

Agencies

[Federal Register Volume 84, Number 160 (Monday, August 19, 2019)]
[Rules and Regulations]
[Pages 42799-42804]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-17494]


=======================================================================
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DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration

14 CFR Parts 3, 61, 63, and 65

[Docket No.: FAA-2018-0656; Amendment Nos. 3-2, 61-143, 63-42, and 65-
59]
RIN 2120-AL04


Security Threat Disqualification Update

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

ACTION: Final rule.

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SUMMARY: The FAA is amending and consolidating the security threat 
disqualification regulations. This final rule establishes the FAA's 
procedures in regulation for amending, modifying, suspending, and 
revoking FAA-issued certificates and any part of such certificates 
issued to individuals based on written notification by the 
Transportation Security Administration (TSA) that a certificate holder 
poses a security threat. The final rule also clarifies the FAA's 
process for denying or holding in abeyance applications for 
certificates and any parts of such certificates when the TSA notifies 
the FAA that an applicant poses a security threat.

DATES: Effective October 18, 2019.

ADDRESSES: For information on where to obtain copies of rulemaking 
documents and other information related to this final rule, see ``How 
To Obtain Additional Information'' in the SUPPLEMENTARY INFORMATION 
section of this document.

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 (49 U.S.C). 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 a screened individual identified by TSA as a security 
threat.

I. Executive Summary

A. Purpose of the Regulatory Action

    This rulemaking amends the current FAA security threat 
disqualification regulations in title 14 of the Code of Federal 
Regulations (14 CFR) Sec. Sec.  61.18, 63.14, and 65.14 and 
consolidates them into part 3 of 14 CFR. Those regulations provide, in 
sum, that no person is eligible to hold a certificate, rating, or 
authorization issued under each corresponding or respective part 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 (December 
12, 2003), and 49 U.S.C. 44903(j)(2)(D)(i), Public Law 108-458 
(December 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

[[Page 42800]]

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 final rule is necessary to conform the 
previously-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 security 
threat regulations in this final rule 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. The 
FAA will 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 posing, a risk of air piracy or terrorism or a threat to 
airline or passenger safety. For certificates already issued, the FAA 
will 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\
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    \1\ The TSA directs the 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

    The final rule provides similar requirements found in the existing 
security threat disqualification regulations. Thus, the final rule will 
not impose any new costs to the industry.

II. Background

A. Current Statutory and Regulatory Structure Governing Security Threat 
Disqualification

    In response to the attack on the U.S. 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 (January 24, 2003). This 2003 final rule provides 
that an individual determined by the TSA to be a security threat is 
ineligible for airman certification and thus cannot 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 current 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 
Sec.  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].''
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    \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).
---------------------------------------------------------------------------

    After the enactment of these statutory provisions, the FAA did not 
update its regulations. However, the FAA did publish in the Federal 
Register its disposition of comments to the 2003 final rule.\4\ In the 
comment disposition, the FAA noted that, if additional rulemaking was 
necessary to reflect the statutory requirements of Sec.  46111, the FAA 
would utilize notice and comment rulemaking. In addition, the FAA 
summarized two D.C. Circuit cases from 2004 that sought judicial review 
of the FAA and the TSA 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 that they would not apply existing regulations to U.S. 
citizens or resident aliens. This case is further addressed in the 
Discussion of Final Rule section of this preamble.\5\
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    \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).
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B. Summary of the Notice of Proposed Rulemaking

    The FAA published the Notice of Proposed Rulemaking (NPRM) on July 
23, 2018.\6\ Generally, the proposal would establish in regulation the 
security threat disqualification requirement mandated in 49 U.S.C. 
46111 and 44903(j)(2)(D)(i). In the NPRM, the FAA proposed to establish 
in regulation the FAA's process for amending, modifying, suspending, 
and revoking 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 FAA 
also proposed to clarify the FAA's process for denying or holding in 
abeyance applications for certificates and any parts of such 
certificates when the TSA notifies the FAA that an applicant poses a 
security threat.
---------------------------------------------------------------------------

    \6\ 83 FR 34795 (July 23, 2018)
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C. General Overview of Comments

    The FAA received one comment on the NPRM, and it was not within the 
scope of the proposal.

III. Discussion of Final Rule

A. Scope

    The final rule codifies, in 14 CFR, 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 of the United 
States Code based on the TSA's written notification that a certificate 
holder poses a security threat. The final rule also clarifies 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 final rule also codifies 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 rule 
relies, refer to certificate holders and applicants in terms of 
individuals, rather than entities.\7\ Accordingly, this

[[Page 42801]]

final rule addresses only individuals who hold or are applying for 
certificates issued under Title 49. There is separate statutory 
authority for FAA certificate action against entities based on TSA 
security threat determinations.\8\
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    \7\ 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).
    \8\ 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.
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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 final rule codifies the FAA's current process for preventing the 
issuance of any certificate to an individual at the application stage 
when the TSA finds the individual to be a security threat. The 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 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 any individual who the TSA 
finds to be a security threat. This final rule provides that, upon 
notification from the TSA, the FAA would hold in abeyance the 
individual's application(s) during an appeal to the TSA of its security 
threat determination. The FAA will 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 will continue processing the 
application.

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

    The FAA will 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 will conform the security threat disqualification 
regulations with 49 U.S.C. 46111 and 44903(j)(2)(D)(i). It will also 
close a gap in the FAA's security threat disqualification regulations 
which are currently not applied to U.S. citizens and resident aliens 
pursuant to a pledge made by the FAA and the TSA as a result of 
Coalition of Airline Pilots Associations v. FAA, 370 F.3d 1184 (D.C. 
Cir. 2004). In Coalition of Airline Pilots Associations, unions 
representing aviation workers raised various challenges to the current 
TSA and the FAA 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 enactment of 49 U.S.C. 46111, 
which provides a different mechanism for TSA security threat 
determinations and appeal procedures for U.S. citizens.\9\ 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 
Coalition of Airline Pilots Associations, 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 (D.C. Cir. 2004).
---------------------------------------------------------------------------

    \9\ 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).
---------------------------------------------------------------------------

    This final rule establishes regulations that apply equally to all 
certificate holders and applicants.

D. TSA Security Threat Determinations and Appeals

    In the case of a security threat disqualification, the certificate 
action or application denial will be based solely on the TSA's 
applicant vetting and security threat determinations, as mandated under 
49 U.S.C. 46111 and 44903(j)(2)(D)(i). TSA's vetting and security 
threat determination authority is provided for in the Aviation and 
Transportation Security Act, Public Law 107-71 (115 stat. 597, November 
19, 2001). The FAA relies on TSA to make these security threat 
determinations and is not privy to the evidentiary basis for them. 
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. citizens, U.S. non-citizen nationals, and lawful 
permanent resident certificate holders. While Sec.  46111 does not 
require that TSA provide review by an Administrative Law Judge (ALJ) 
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's decision.
---------------------------------------------------------------------------

    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 will extend beyond an 
examination of the procedural ground for the certificate action or 
application denial because an affected individual will be provided the 
opportunity to challenge the substance of TSA's security threat 
determination under TSA's appeal process.\11\
---------------------------------------------------------------------------

    \11\ 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 (D.C. 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.
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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.

[[Page 42802]]

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 final rule.
    The existing security threat disqualification regulations in 14 CFR 
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, 2003. A year later, the 
authority in 49 U.S.C. 46111 and 49 U.S.C. 44903(j)(2)(D)(i) became 
law. Section 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. Section 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 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 final 
rule, the expected outcome will be a minimal cost, if any.
    The FAA has, therefore, determined that this final rule is not a 
``significant regulatory action'' as defined in section 3(f) of 
Executive Order 12866.

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 final rule provides requirements based on the existing 
statutory authority located at 49 U.S.C. 46111 and 49 U.S.C. 
44903(j)(2)(D)(i). Thus, the final rule will 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 rulemaking will 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 U.S., 
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 final 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 final 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 is no new requirement for information collection associated with 
this final rule.

F. International Compatibility and Cooperation

    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 this final rule.

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 this rulemaking action qualifies for the categorical 
exclusion identified in paragraph 5-6.6 and involves no extraordinary 
circumstances.

H. Congressional Review Act

    Pursuant to the Congressional Review Act (5 U.S.C. 801 et seq.), 
the Office of Information and Regulatory Affairs designated this rule 
as not a `major rule', as defined by 5 U.S.C. 804(2).

[[Page 42803]]

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 final rule under the principles and 
criteria of Executive Order 13132, Federalism. The agency determined 
that this action will 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, does not have Federalism 
implications.

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

    The FAA analyzed this final 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 
is not a ``significant energy action'' under the executive order and it 
is not likely to have a significant adverse effect 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 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. How To Obtain Additional Information

A. Rulemaking Documents

    An electronic copy of a rulemaking document may be obtained by 
using the internet--
    1. Search the Federal eRulemaking Portal (https://www.regulations.gov);
    2. Visit the FAA's Regulations and Policies web page at https://www.faa.gov/regulations_policies/ or
    3. Access the Government Printing Office's web page at https://www.gpo.gov/fdsys/.
    Copies may also be obtained by sending a request (identified by 
notice, amendment, or docket number of this rulemaking) to the Federal 
Aviation Administration, Office of Rulemaking, ARM-1, 800 Independence 
Avenue SW, Washington, DC 20591, or by calling (202) 267-9677.

B. Comments Submitted to the Docket

    Comments received may be viewed by going to https://www.regulations.gov and following the online instructions to search the 
docket number for this action. Anyone is able to search the electronic 
form of all comments received into any of the FAA's 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.).

C. Small Business Regulatory Enforcement Fairness Act

    The Small Business Regulatory Enforcement Fairness Act (SBREFA) of 
1996 requires FAA to comply with small entity requests for information 
or advice about compliance with statutes and regulations within its 
jurisdiction. A small entity with questions regarding this document, 
may contact its local FAA official, or the person listed under the FOR 
FURTHER INFORMATION CONTACT heading at the beginning of the preamble. 
To find out more about SBREFA on the internet, visit https://www.faa.gov/regulations_policies/rulemaking/sbre_act/.

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 Amendment

    In consideration of the foregoing, the Federal Aviation 
Administration amends 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 to part 3 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. Redesignate Sec. Sec.  3.1 and 3.5 to subpart A.

0
4. Add new subpart B to read as follows:

Subpart B--Security Threat Disqualification

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


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

    When the Transportation Security Administration (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 Transportation Security Administration 
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 threat 
determination, the FAA will

[[Page 42804]]

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  [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  [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  [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 August 1, 2019.
Daniel K. Elwell,
Acting Administrator.
[FR Doc. 2019-17494 Filed 8-16-19; 8:45 am]
BILLING CODE 4910-13-P

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