Public Citizen, Inc. v. F.A.A.

• Decision Date: 26 March 1993
• Docket Number: No. 91-1509,91-1509
• Parties: , 61 USLW 2629 PUBLIC CITIZEN, INC., Aviation Consumer Action Project, and Families of Pan-Am 103/Lockerbie, Petitioners, v. FEDERAL AVIATION ADMINISTRATION, Respondent.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 186

988 F.2d 186

300 U.S.App.D.C. 238, 61 USLW 2629

PUBLIC CITIZEN, INC., Aviation Consumer Action Project, and Families of Pan-Am 103/Lockerbie, Petitioners, v. FEDERAL AVIATION ADMINISTRATION, Respondent.

No. 91-1509.

United States Court of Appeals District of Columbia Circuit.

Argued Feb. 17, 1993.

Decided March 26, 1993.

Petition for Review of an Order of the Federal Aviation Administration.

Leslie A. Brueckner, with whom Patti A. Goldman and Alan B. Morrison were on the brief, for petitioners.

Robert V. Zener, Atty., Dept. of Justice, with whom Stuart M. Gerson, Asst. Atty. Gen., and Carla J. Martin, Counsel, Federal Aviation Admin., were on the brief, for respondent.

Before MIKVA, Chief Judge, and WILLIAMS and SENTELLE, Circuit Judges.

Opinion for the Court filed by Circuit Judge SENTELLE.

SENTELLE, Circuit Judge:

In this case, petitioners challenge rules the Federal Aviation Administration ("FAA") adopted pursuant to the Aviation Security Improvement Act of 1990 ("ASIA"), 49 U.S.C.App. § 1357(h) (1988 & Supp. II 1990), arguing that the rules, standing alone, are not detailed enough to satisfy ASIA. To the extent the FAA's defense of those rules relies on other rules withheld from the public for security reasons, petitioners argue that the FAA's failure to publish the secret rules in the Federal Register and to allow public notice and comment violated both the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552 (1988), and the Administrative Procedure Act ("APA"), 5 U.S.C. § 553 (1988).

Deferring to the FAA's interpretation of ASIA, we uphold the rules as adopted, and in particular, conclude that Congress clearly intended for the FAA to retain the authority to promulgate security-sensitive rules in secret, as it had before ASIA's enactment. See Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 843, 104 S.Ct. 2778, 2781, 81 L.Ed.2d 694 (1984). We further conclude that the FAA rationally determined that to disclose the information petitioners seek would jeopardize passenger safety, within the meaning of 49 U.S.C.App. § 1357(d)(2) (1988 & Supp. II 1990). Accordingly, we deny the petition for review.

I. BACKGROUND

In 1988, terrorists succeeded in bombing Pan Am flight 103 over Lockerbie, Scotland, killing all passengers on board. In response, the President created the Commission on Aviation Security and Terrorism ("Commission") to conduct a "comprehensive study and appraisal of practices and policy options with respect to preventing terrorist acts involving aviation." Exec. Ord. No. 12,686, reprinted in 54 Fed.Reg. 32,629 (1989). The following year, the Commission concluded its study and issued a report concluding that "the U.S. civil aviation security system is seriously flawed ... [and] needs major reform." Report of the President's Commission on Aviation Security and Terrorism, at i (1990) (hereinafter, "Report "). Part of the problem, according to the Commission, is that "FAA has provided to the airlines and airports very little guidance and few standards for their use" in combatting acts of terrorism. Id. at 55.

Congress sought to remedy the problem by enacting the Aviation Security Improvement Act of 1990, 49 U.S.C. App. § 1357(h). ASIA directed the FAA to adopt rules, no later than 270 days from its effective date, prescribing, inter alia, "minimum training requirements for new employees," id. § 1357(h)(1), and "minimum staffing levels." Id. § 1357(h)(3).

Pursuant to the congressional mandate, the FAA issued a Notice of Proposed Rulemaking ("NPRM") on April 2, 1991. See 56 Fed.Reg. 13,552 (1991). The NPRM set forth the requirements the FAA proposed to add in order to comply with ASIA, see id., but emphasized that the FAA could not provide more specific guidance in public rules of general applicability. The FAA gave two reasons for that conclusion. First, "[b]ecause of the unique nature of each airport, ... training specified in a wide-reaching regulation c[an] speak only to general concepts." Id. at 13,553. Rather than attempt to fashion more detailed training standards, the FAA "chose[ ] to present a list of required topics around which airport operators must build customized curricula," to which airport operators would be "encouraged" to add "topics of local concern." Id. at 13,553-54.

The second reason the FAA gave for not providing more detailed guidance in the rules was that disclosing too much detail would undermine the integrity of airport security procedures. As the FAA viewed matters, making more specific information or criteria publicly available "could assist anyone in attempting to breach security," id. at 13,554, and "[i]f such information became available to a person with criminal or terrorist intent, it could focus that person's attention on specific techniques to counter otherwise effective security systems." Id. at 13,555. For these reasons, the FAA explained, although the NPRM "proposes general requirements for minimum employment standards for airport operators and air carriers, the security-sensitive instructions tailored to the particular needs of each airport and air carrier and contained in FAA-approved security programs are not specified in the rule." Id. at 13,552.

In declining to release the "security-sensitive instructions" to be provided in the individualized security programs, the FAA, after making the required findings, see 56 Fed.Reg. at 13,552, invoked its authority to withhold such information. See 49 U.S.C.App. § 1357(d)(2); 14 C.F.R. § 191.1 et seq. (1992) (implementing § 1357(d)(2)); see also 14 C.F.R. § 191.3(b)(2)-(3) (exempting security programs from public disclosure). Section 1357(d)(2) provides, in relevant part, as follows:

Notwithstanding section 552 of Title 5 relating to freedom of information, the [FAA] Administrator shall prescribe such regulations as he may deem necessary to prohibit disclosure of any information obtained or developed in the conduct of security or research and development activities under this subsection if, in the opinion of the Administrator, the disclosure of such information--

(C) would be detrimental to the safety of persons traveling in air transportation.

49 U.S.C.App. § 1357(d)(2)(C), as amended by Omnibus Budget Reconciliation Act of 1990, Pub.L. No. 101-508, 104 Stat. 1388 (1990) (broadening § 1357(d)(2) to apply to information obtained or developed in the conduct of "security activities"). ¹

However, the FAA assured the public that "[s]pecific staffing criteria are being developed and will be presented in a proposed revision to the carriers' security programs." 56 Fed.Reg. at 13,554. The FAA made the same assurances as to the updated training requirements. See id. at 13,555-56 (stating that "[i]n conjunction with this rulemaking action, current standards for pre-employment qualifications, training and recurrent training, and testing of screening personnel would be strengthened through a corollary proposed security program revision").

Several commenters were not satisfied with the FAA's assurances. One commenter, Billie H. Vincent, the FAA's former Director of Security, objected that "[t]here is no [legitimate] reason for withholding the minimum amounts of training for security personnel from the public's oversight," Comments of Billie H. Vincent, at 1 (Apr. 2, 1991), because "one only has to fear revealing inadequate requirements." Id. at 4. Indeed, Vincent argued, greater public disclosure of training standards "can strengthen the deterrent value of an aviation security program," unless, of course, the requirements tolerate a security system that is "weak and ineffectual." Id. at 3. Additionally, Public Citizen, Inc. ("Public Citizen"), argued that because any member of the public would be able to see how many employees were at each checkpoint, minimum staffing levels are not security-sensitive. Furthermore, Public Citizen, Aviation Consumer Action Project ("ACAP") and others also objected to the FAA's decision to promulgate detailed standards in secret rules as a violation of the notice-and-comment requirements of the APA and FOIA's publication requirement.

The FAA apparently decided the commenters were correct as to minimum aptitude and physical requirements and therefore decided to address those issues in the final rules. See 56 Fed.Reg. 41,412, 41,419 (1991). Nevertheless, the FAA continued to withhold disclosure in greater detail of training and staffing requirements on the ground that such information was "of a security-sensitive nature or involved individualized details of specific security programs." Id. at 41,421. Apart from its invocation of 49 U.S.C.App. § 1357(d)(2) and the implementing regulations, the FAA did not specifically address Public Citizen's APA and FOIA arguments. On August 20, 1991, seven days after the ASIA deadline, the FAA issued the final rules with the same degree of specificity as proposed, with the exception of the minimum aptitude and physical requirements. See 56 Fed.Reg. 41,412 (1991) (codified at 14 C.F.R. § 107.7 et seq. (1992)).

Public Citizen, ACAP and Families of Pan-Am 103/Lockerbie (collectively, "petitioners") then filed the instant petition for review on November 22, 1991. On December 10, 1991, the FAA filed a "Certified List of Documents Comprising the Record," which included the Commission's report, the NPRM, the public comments thereon, and the final rules. Petitioners then moved for an order, pursuant to Fed.R.App.P. 16(a), compelling the FAA to supplement the record to include the secret security programs and related materials for review by counsel for petitioners. The FAA objected, arguing, inter alia, that it had not yet completed its post-ASIA revisions to airport and air carrier security programs. In January 1992, petitioners also moved for summary disposition of their petitions for review, on the ground that the FAA had conceded that it had not complied with ASIA's 270-day time limit for issuing the new...