Bill seeks to limit TSA’s SD authority

By: Paul Lowe

November 2, 2009
Regulations and Government

A bipartisan group of congressmen has introduced a bill that would modify the Transportation Security Administration’s (TSA) authority to issue security directives (SD) without notice or public input.

H.R.3678 would amend the U.S. Code so that the TSA could not issue an SD immediately. Instead, the agency would need to submit the SD to the Transportation Security Oversight Board “to determine if the regulation or security directive is needed to respond to an imminent threat of finite duration.”

When the TSA issued a security directive in December requiring pilots based at airline-served airports to undergo a security threat assessment and receive a security badge to continue to have unescorted access to their airports, House lawmakers agreed with assertions from the general aviation community that the TSA has been using security directives to bypass a rulemaking process that should solicit comments from affected parties.

Legislators added an amendment to the TSA Authorization Act (H.R.2200) that clarified the conditions under which the agency would be authorized to issue SDs, limiting the practice to situations involving imminent threat and finite duration. Otherwise, the TSA had to work within the framework of the Administrative Procedures Act when issuing new proposals. H.R.2200 passed the House but is awaiting Senate consideration.

Meanwhile, H.R.3678, now a freestanding bill, would require the TSA to follow established standards when issuing public notice for regulations and security directives, and would require the agency to conduct a formal rulemaking process for any emergency regulation or security directive in place for more than 180 days.

If the bill were enacted into law, the SD that requires badging of GA pilots at commercial-service airports would have to go through the rulemaking process, giving pilots the opportunity to comment and influence changes to the directive. 

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