[Federal Register Volume 67, Number 115 (Friday, June 14, 2002)]
[Rules and Regulations]
[Pages 41140-41146]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-15060]
[[Page 41139]]
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Part IV
Department of Justice
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28 CFR Part 105
Screening of Aliens and Other Designated Individuals Seeking Flight
Training; Interim Final Rule and Proposed Rule
Rescission of Second Notice of Advance Consent for Providing Certain
Aviation Training; Notice
Federal Register / Vol. 67, No. 115 / Friday, June 14, 2002 / Rules
and Regulations
[[Page 41140]]
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DEPARTMENT OF JUSTICE
28 CFR Part 105
[OAG 104; AG Order No. 2590-2002]
RIN 1105-AA80
Screening of Aliens and Other Designated Individuals Seeking
Flight Training
AGENCY: Department of Justice.
ACTION: Interim final rule with request for comments.
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SUMMARY: Under section 113 of the Aviation and Transportation Security
Act, certain aviation training providers subject to regulation by the
Federal Aviation Administration (``FAA'') are prohibited from providing
training to aliens and other designated individuals in the operation of
aircraft with a maximum certificated takeoff weight of 12,500 pounds or
more, unless the aviation training provider notifies the Attorney
General of the identity of the alien seeking training and the Attorney
General does not direct the aviation training provider within 45 days
that the alien presents a risk to aviation or national security. This
interim final rule implements a process by which aviation training
providers would provide the required notification for specific
categories of aliens, the Attorney General would respond, and the
aviation training providers would begin or resume instruction for
candidates who the Attorney General has determined do not present a
risk to aviation and national security as a result of the risk
assessment conducted pursuant to section 113 of the Aviation and
Transportation Security Act.
DATES: Effective date: This interim rule is effective June 14, 2002.
Comment date: Written comments on the interim final rule must be
submitted on or before July 15, 2002. Written comments only on the
proposed information collection must be submitted on or before August
13, 2002.
ADDRESSES: Please submit written comments to Aviation Training
Security, U.S. Department of Justice, 950 Pennsylvania Avenue, NW,
Washington, DC 20530.
FOR FURTHER INFORMATION CONTACT: Steven C. McCraw, Director, Foreign
Terrorist Tracking Task Force, U.S. Department of Justice, Telephone
(703) 414-9535.
SUPPLEMENTARY INFORMATION: On November 19, 2001, Congress enacted the
Aviation and Transportation Security Act (``ATSA''), Pub. L. No. 107-
71. Upon enactment, section 113 of ATSA, 49 U.S.C. 44939, imposed
notification and reporting requirements on certain persons who provide
aviation training to aliens and other specified individuals. By its
terms, section 113 of ATSA applies to anyone ``subject to regulation
under this part.'' The reference to ``this part'' refers to Title 49,
Subtitle VII, Part A, of the U.S. Code, entitled ``Air Commerce and
Safety.'' Any entity regulated by any portion of Part A, comprising
section 40101 through section 46507 of Title 49, must comply with the
requirements of section 113 of ATSA. Persons subject to regulation
under these provisions include individual training providers, training
centers, certificated carriers, and flight schools (hereinafter
collectively referred to as ``Providers''). Thus, virtually all private
flight instructors located in the United States are covered by section
113 of ATSA and therefore are subject to this rule. In addition,
section 113 of ATSA does not exclude private providers of flight
instruction located in countries outside the United States if these
providers are authorized by the FAA to award United States licenses,
certificates, or ratings. Providers outside the United States are not
covered with regard to a particular instance of training, however, if
that training will not lead to an FAA license, certificate or rating,
regardless of whether the provider also has authority to issue such
licenses, certificates or ratings. When the Department of Defense or
the U.S. Coast Guard, or an entity providing training pursuant to a
contract with the Department of Defense or the U.S. Coast Guard,
provides training for a military purpose, such training is not subject
to FAA regulation and therefore these entities, when providing such
training, are not ``person[s] subject to regulation under this part''
within the meaning of section 113. See, e.g., 49 U.S.C. 44701(a)
(Administrator's jurisdiction extends to promoting ``safe flight of
civil aircraft in air commerce''); 14 CFR part 61 (provisions
concerning certification of pilots, flight instructors, and ground
instructors do not apply where training is not for purpose of FAA
certification).
Failure to comply with this rule may result in penalties being
imposed in conformance with section 140(d) of ATSA. Pursuant to 49
U.S.C. 46301, persons violating this section are subject to civil
penalties.
Pursuant to section 113 of ATSA, if an alien (defined in 8 U.S.C.
1101(a)(3) as ``any person not a citizen or national of the United
States'') or other person specified by the Under Secretary of
Transportation for Security (collectively ``candidates'') seeks
instruction from a Provider in the operation of an aircraft with a
maximum certificated takeoff weight of 12,500 pounds or more, the
Provider must notify the Attorney General and must submit identifying
information for the candidate in such form as the Attorney General may
require in order to initiate a security risk assessment by the
Department of Justice (the ``Department'').
Once the Attorney General has been notified and all the required
identifying information has been submitted, the Attorney General then
has 45 days to inform the Provider that the candidate should not be
given the requested training because he or she presents a risk to
aviation or national security. If the Attorney General does not
indicate that the candidate presents a risk to aviation or national
security by the end of this 45-day review period, then the Provider may
proceed with training. The Attorney General, however, may interrupt the
training if he later determines that the candidate presents a risk to
aviation or national security. The Attorney General has delegated his
authority under section 113 of ATSA to conduct security risk
assessments of individuals seeking flight training and to determine
whether such individuals present a risk to aviation or national
security to the Director of the Foreign Terrorist Tracking Task Force
(``FTTTF'').
The Department recognized that section 113 of ATSA became
immediately effective, and that Providers had been forced to suspend
the training of aliens covered by ATSA pending the implementation of
the process for notification to the Attorney General and the
determination by the Attorney General whether the individual seeking
training presents a risk to aviation or national security. The
Department issued a notice on January 16, 2002 (``First Advance Consent
Notice'') that stated that the Department was granting a provisional
advance consent for the training of three categories of aliens, based
on an initial determination they did not appear to present a risk to
aviation or national security. 67 FR 2238. The First Advance Consent
Notice was subsequently superseded, and the categories of advance
consent modified in a notice published on February 8, 2002 (``Second
Advance Consent Notice'' or ``Second Notice''). 67 FR 6051 (Feb. 8,
2002). The Second Notice is rescinded as of June 14, 2002.
This interim final rule with request for comments (``interim
rule'') rescinds the Second Advance Consent Notice and imposes
notification requirements for aliens within one of the three
[[Page 41141]]
categories eligible for expedited processing pursuant to this interim
rule. Providers who currently are training any aliens in one of the
four categories described in the Second Notice must suspend training
until the Attorney General authorizes it to continue. This interim rule
implements an expedited processing procedure for aliens in two of the
four categories listed in the Second Notice and adds one additional
category. Aliens in those three categories cannot be trained until the
Provider notifies the Department in accordance with this rule and
either the Attorney General authorizes training to proceed or 45 days
from the date of notification elapses.
Although this regulation is being issued as an interim rule, the
Department is committed to issuing a final rule that addresses comments
from the public and the aviation industry. The Department plans to
issue a final rule addressing these comments as soon as possible after
the comment period closes.
Expedited Processing for Aviation Training of Certain Aliens
The Department believes that the primary intent of Congress was to
protect aviation and national security by preventing aliens who present
a risk to aviation or national security from being taught how to pilot
aircraft with a maximum certificated takeoff weight of 12,500 pounds or
more. The Department has determined that providing aviation training
for certain categories of aliens presents little risk to aviation or
national security because these aliens already have been trained as
pilots. In this interim rule, the Department establishes an expedited
processing procedure for those categories of aliens. These three
categories of aliens are:
(1) Foreign nationals who are current and qualified as pilot in
command, second in command, or flight engineer with respective
certificates with ratings recognized by the United States for aircraft
with a maximum certificated takeoff weight of 12,500 pounds or more, or
who are currently employed by U.S. air carriers as pilots on aircraft
with a maximum certificated takeoff weight of 12,500 pounds or more;
(2) Commercial, governmental, corporate, or military pilots of
aircraft with a maximum certificated takeoff weight of 12,500 pounds or
more who must receive familiarization training on a particular aircraft
in order to transport it to the purchaser or recipient, provided that
the training provided is limited to familiarization (familiarization
training is limited to that required to become proficient in
configurations and variations of an aircraft and does not include
initial qualification or type rating for an aircraft); or
(3) Military or law enforcement personnel who must receive training
on a particular aircraft given by the United States to a foreign
government pursuant to a draw-down authorized by the President under
section 506(a)(2) of the Foreign Assistance Act of 1961, as amended (22
U.S.C. 2318(a)(2)), provided that the training provided be limited to
familiarization.
These three categories differ slightly from the categories
described in the Second Notice. At the suggestion of the FAA, this
interim rule expands category (1) in the Second Notice to include
foreign nationals currently employed by U.S. air carriers as pilots on
aircraft with a maximum certificated takeoff weight of 12,500 pounds or
more. Such individuals may have temporarily lost their current status
or qualification either through personal or medical reasons.
Nevertheless, as they are already fully trained pilots, requiring them
to undergo a full investigation before regaining current status would
create a hardship to the industry without bringing any significant
benefit to national security.
Category (2) of the Second Notice covered training being conducted
directly by the United States Department of Defense or the U.S. Coast
Guard. When the Department of Defense or the U.S. Coast Guard, or an
entity providing training pursuant to a contract with the Department of
Defense or the U.S. Coast Guard, provides training for a military
purpose, such training is not subject to FAA regulation and therefore
these entities, when providing such training, are not ``person[s]
subject to regulation under this part'' within the meaning of section
113. See, e.g., 49 U.S.C. 44701(a) (Administrator's jurisdiction
extends to promoting ``safe flight of civil aircraft in air
commerce''); 14 CFR part 61 (provisions concerning certification of
pilots, flight instructors, and ground instructors do not apply where
training is not for purpose of FAA certification). Accordingly, in the
instant rule, the former Category (2) is not included.
One category in the Second Notice covering certain students
scheduled for training pursuant to an export authorization issued by
the Department of State will not be included in the interim rule.
Finally, Category (3) will allow expedited processing for law
enforcement or military pilots of foreign countries who would receive
familiarization training on aircraft given to those countries by the
United States pursuant to draw-downs authorized by the President in
support of the United States' anti-narcotics efforts. Such pilots are
subject to careful evaluation by the State Department and, as they are
fully qualified pilots seeking only familiarization training rather
than basic flight instruction, no significant security benefits would
be realized by requiring them to undergo a full investigation.
Providers wishing to furnish aviation training to candidates in any
of these categories will need to provide the Department with certain
minimal identification, including the candidate's name, date of birth,
passport issuing authority, country of citizenship, dates of training,
unique student identification number, and the expedited processing
category under which the candidate qualifies. The unique student
identification number must be created by the Provider as a means of
identifying records concerning the candidate. The unique student
identification number must correspond to records kept by the Provider
containing basic data concerning the candidate, including date of
birth, place of birth, passport issuing authority and passport number,
and copies of any other documentation that the FAA may require. As soon
as the Provider furnishes the information to the Department in
accordance with section 105.12 of this interim rule, and receives a
response from the Department indicating that the individual does not
present a risk to aviation or national security as a result of the risk
assessment conducted pursuant to section 113 of ATSA, the Provider
immediately may begin training. Receipt of this response by the
Department to the notification will be deemed approval by the
Department to commence training.
The Provider's notification must be sent electronically to the
Department in accordance with this regulation. Certificated training
Providers must receive initial access to the system through the FAA.
Providers will be required to make appointments to register through
their local Flight Standards District Offices. Upon registration,
Providers will be e-mailed a password for accessing the system and
verifying applicant submissions. Any electronic notifications submitted
to the Department must be submitted from a registered e-mail address in
a format provided by the Department or the FAA. Any submissions sent
from an unregistered e-mail address or using an incorrect format will
not constitute notification of the Department for purposes of this
rule.
[[Page 41142]]
The Department intends for its review to be accomplished
expeditiously and requests comments on what turnaround time is needed
to minimize any burdens that may be experienced by the aviation
industry. Providers should keep in mind that the required notifications
may be provided in advance of the anticipated training.
Limiting submissions to electronic submissions placed by Providers
will help to eliminate data-input errors, speed the processing of
submissions, and aid the Department's ability to audit the process. In
addition, the Department will be able to implement controls to help
ensure the integrity of the submissions. A paper-based system likely
would result in more errors and increased processing times, thus
further burdening the flight instruction industry.
In order to ensure that the electronic submissions are made by
certificated training providers, Providers must receive initial access
to the system through the FAA. Providers will be required to make
appointments to register through their local Flight Standards District
Offices. Upon registration, Providers will be e-mailed a password for
accessing the system. The Department believes that most, if not all,
Providers furnishing instruction on aircraft with a maximum
certificated takeoff weight of 12,500 pounds or more already possess
Internet access. Those Providers not possessing an e-mail address will
need to obtain one if they wish to utilize this process. The Department
also notes that free Internet access is available at many public
facilities, such as public libraries, and that free e-mail services are
available from some Internet Service Providers. The Department seeks
comments from Providers and candidates on the impact of the requirement
to provide notifications to the Department electronically.
Citizens and Nationals of the United States
Citizens and nationals of the United States are not subject to
section 113 of ATSA unless they are covered by a category designated by
the Under Secretary of Transportation for Security. Accordingly,
Providers may proceed with training for such individuals once they
establish that they are citizens or nationals of the United States.
The Attorney General is requiring that all prospective trainees who
claim to be citizens or nationals of the United States must present
documents to the Provider (such as a passport or birth certificate)
establishing that the trainee is a citizen or national of the United
States. Proof of United States citizenship or nationality is mandatory
for United States citizens or nationals seeking training in the
operation of an aircraft with a maximum certificated takeoff weight of
12,500 pounds or more, because, with the exception of individuals
designated by the Under Secretary of Transportation for Security, the
Department will not conduct checks on citizens or nationals of the
United States. This requirement is necessary to prevent aliens from
falsely claiming to be United States citizens in order to evade the
Department's security risk assessment. The Department also notes that
aliens who falsely claim to be United States citizens in order to
obtain flight training subject to section 113 of ATSA may be convicted
of a felony under 18 U.S.C. 911 and will be permanently inadmissible to
the United States under section 212(a)(6)(C)(ii) of the Immigration and
Nationality Act, 8 U.S.C. 1182(a)(6)(C)(ii).
Risk Assessments for Aliens Not Granted Expedited Processing and Other
Persons Specified by the Under Secretary of Transportation for Security
The Department is issuing a separate proposed rule to address
training for aliens who do not fall within a category of expedited
processing in this interim rule. The proposed rule also addresses the
notification process for individuals who may be specified by the Under
Secretary of Transportation for Security. In accordance with ATSA, the
Under Secretary of Transportation for Security may specify other
individuals for whom the Department should conduct security risk
assessments. At this time, however, no other individuals have been
specified.
Attorney General Review
After the Provider submits all the information that is required
under this rule, the Attorney General will have 45 days to conduct a
security risk assessment. The Department recognizes the economic burden
imposed on Providers by the 45-day waiting period for those candidates
who are subject to this notification requirement. The Department
believes that it is unnecessary to make a candidate wait for the full
45-day period in order to begin training if the Department has
completed its risk assessment. Accordingly, in most cases, the
Department expects that the Provider will be authorized to commence
training (or instructed to deny it) sooner than the 45 days allowed by
the statute.
Providers training candidates qualifying for expedited processing
who have notified the Department in accordance with section 105.12 may
commence training immediately after they receive a response from the
Department to their notification, indicating that the individual does
not present a risk to aviation or national security as a result of the
risk assessment conducted pursuant to section 113 of ATSA. In the event
that the Attorney General does not instruct the Provider to deny
training within 45 days of the submission of all the information
required under this rule, the Provider may commence the requested
training.
The information provided to the Department will be used to confirm
the identity of the individuals being trained and to help assess the
risk presented by the candidate. In the event the Department
subsequently determines that a candidate being trained does, in fact,
present a risk to aviation or national security and that training
should be denied, the Department will notify the Provider to terminate
training immediately. Appropriate measures will be taken with respect
to any candidate who is determined to present a risk to aviation or
national security or with respect to any candidate or Provider who
knowingly or negligently provides false information to the Department.
Regulatory Procedures
Good Cause
This interim rule is effective immediately upon the date of
publication. For the following reasons the Department finds that good
cause exists for adopting this rule without the prior notice ordinarily
required by 5 U.S.C. 553(b). Delay in the implementation of the rule
will cause serious disruption in the aviation industry and the economy
in general, will have a negative impact on public safety and national
security, and will have a seriously adverse impact on the military and
foreign affairs of United States.
As a consequence of the notification requirement in section 113 of
ATSA, Providers were prohibited from furnishing aviation training to
aliens pending the implementation of a process for submitting training
notifications to the Department. As a temporary measure to relieve the
economic pressure on the aviation industry pending the promulgation of
this rule, and based on a determination that the training of certain
categories of aliens who already had flight skills did not pose any
additional risk to aviation or national security within the meaning of
the statute, the Department published two Federal Register Notices
defining
[[Page 41143]]
certain categories of ``advance consent.'' Providers subsequently
provided training to pilots in those categories without first notifying
the Department. This advance consent process, however, is terminated
with the publication of this rule, based on an assessment of the
requirements of the ATSA.
This rulemaking is being issued on an interim basis to prevent the
burdens that would be imposed on the public and the aviation industry
if the revocation were effected without immediate provision of a means
for Providers to furnish the required training notifications to the
Attorney General for those aliens who are within the categories
described in the expedited processing provisions of the interim final
rule. For the following reasons, advance notice and comment would be
contrary to the public interest.
While the primary intent of Congress behind section 113 of ATSA was
to protect aviation and national security, the public also has a strong
interest in seeing that those aliens who do not present such risks are
allowed to train. Because advance consent is being revoked, Providers
who are prohibited from training aliens, airlines who regularly employ
these pilots, and manufacturers who sell to these airlines would lose
business every day that these regulations are not in effect. In
addition, the inability to provide training would have a ripple effect
on the United States economy. On the basis of available information,
the Department believes that the aviation industry and the public would
be affected severely if the Department were to eliminate advance
consent without providing an immediate means of furnishing the required
notifications to the Department.
First, flight schools will be harmed economically over the course
of the 60 days that might be expected to elapse were this rule
published as a proposed, rather than an interim, rule. Almost all
aliens coming to this country who seek training in the operation of
aircraft with a maximum certificated takeoff weight of 12,500 pounds or
more will use aircrew-training simulators, and a significant proportion
of simulator time is used by aliens eligible for expedited processing
pursuant to this interim final rule. A new simulator costs between $5.5
million and $19 million each, and therefore must generate substantial
revenue to return a profit for a flight school. There are approximately
700 simulators in the United States. Financial difficulties accruing to
Providers from lost opportunities due to restrictions on training
aliens are confirmed by Pan Am International Flight Academy in Miami,
Florida. In addition to the revenue they generate, simulators support
the employment of numerous flight school employees. Simulators also
support substantial demand for overnight accommodations, meals, and
transportation, and related employment. The direct and indirect losses
to the national economy caused by a 60-day delay in the effective date
of this rule would be substantial.
Second, the training delays have direct adverse effects on air
carriers and their ability to conduct their business. As discussed
above, much of the training conducted by Providers to aliens is in the
form of recurrent training offered to experienced pilots who are
currently flying into and out of the United States. The Department has
estimated that 50,500 aliens will be subject to the expedited
processing provisions implemented in this rule. Although the
requirements for recertification vary, the Department estimated that
these 50,500 aliens will need to take recurrent training, on average,
approximately three times each year. This suggests that an average of
approximately 12,625 pilots may risk losing their current status for
lack of the required recurrent training every month that the
publication of an effective rule is delayed. The potential loss of the
services of this number of pilots and flight crew would have a
substantial negative effect on the aviation industry. Information
provided by the industry reflects that some 5-10% of pilots employed by
United States carriers are aliens. If these individuals were to lose
their current flight status and be unable to fly, a loss in revenue
could be expected.
Third, the domestic airplane manufacturing industry also is
affected by the notification requirements of section 113 of ATSA.
According to the FAA, the Commerce Department, and the industry, large
purchase contracts of domestic airplane manufacturers involve not only
the sale of aircraft, but also the training of pilots in the use of
such aircraft. Indeed, according to one industry source, a contract for
the sale of a large aircraft includes, in every instance, a certain
amount of ``entitlement training.'' If overseas buyers are deterred
from purchasing planes manufactured in the United States because they
cannot have their pilots trained in the operation of such aircraft,
expected losses would be severe.
Fourth, a delay in the effective date of a rule providing expedited
processing for the three categories of aliens also would be contrary to
the public's interest in aviation safety. Aviation training may be
furnished outside the United States by flight schools not subject to
section 113. Therefore, the lack of an effective rule would serve to
encourage aliens who otherwise would be trained in the United States to
seek training elsewhere. That decision not only risks the economic well
being of domestic Providers, but increases the risk that these aliens
would be trained by lower quality foreign flight schools that do not
comply with FAA regulations. It clearly is in the interest of public
safety for pilots to be trained by Providers regulated by the FAA.
Moreover, aliens in the three categories that would end up being
trained by non-FAA regulated flight schools would avoid the risk
assessments to which they would be subject if they sought training by
Providers pursuant to these regulations. The loss of an opportunity to
perform a risk assessment could mean that the Department would have no
record of an attempt to seek training by an alien with ties to
terrorism.
Additionally, a delay in issuing a rule allowing current pilots to
take training would discourage these pilots from seeking to improve and
refresh their piloting skills. In addition, if pilots are unable to
complete their recurrent training, the United States air carriers
employing those pilots may be required under the laws and regulations
governing the aviation industry to ground those current pilots,
depending upon their individual circumstances, from flying into United
States airspace until their recurrent training can be completed. See 14
CFR part 121 and part 135. In turn, that action would cause the air
carriers to begin to experience a shortage of available pilots.
Fifth, delay in the implementation of a notification process for
aliens in the three categories also would injure the United States'
military interests and would have a significant harmful effect on its
foreign relations. The rulemaking requirements of 5 U.S.C. 553 do not
apply to rules that involve ``a military or * * * foreign affairs
function of the United States.'' 5 U.S.C. Sec. 553(a). A number of the
aliens subject to section 113 are being trained pursuant to agreements
with the governments of other countries for both economic and military
reasons. Indeed, this interim rule provides for expedited processing
for a category of foreign military pilots. The delay in implementing
this rule with respect to such pilots will have an increasingly serious
adverse impact on the military interests and foreign affairs of the
United States.
The Department has consulted with the FAA and considered comments
from representatives of the aviation industry
[[Page 41144]]
during its development of a notification process. While the Department
is soliciting further comments from the public regarding this interim
rule, the Department believes, for all the foregoing reasons, that it
would be contrary to the public's interest to issue this regulation as
a proposed rule at this time.
Finally, the Department also has good cause to issue this interim
rule with an immediate effective date, in accordance with 5 U.S.C.
553(d). As set forth above, the immediate publication of these
regulations is in the public interest because it will prevent the
imposition of burdens on the aviation industry, the economy, and the
public in general that would occur were the advance consent revoked
without the expedited processing made available through this interim
final rule. The immediate publication of the rule also will limit a
serious negative impact on military interests and foreign affairs of
the United States. Because additional delay is contrary to the public
interest, there is good cause under 5 U.S.C. 553(d) to make this rule
effective as of June 14, 2002.
Regulatory Flexibility Act
In accordance with the Regulatory Flexibility Act (5 U.S.C.
605(b)), the Attorney General, by approving this regulation, certifies
that this rule will have a significant economic impact on a substantial
number of small entities. Although the overall economic impact of this
regulation will be beneficial toward small entities, the Department has
prepared the following initial Regulatory Flexibility Act analysis in
accordance with 5 U.S.C. 603.
The small entities affected by this rule include virtually all
Providers furnishing flight instruction to aliens in the operation of
aircraft with a maximum certificated takeoff weight of 12,500 pounds or
more. Pursuant to section 113 of ATSA, Providers are prohibited from
furnishing any instruction to such aliens until the Attorney General is
able to provide a means for determining whether the alien presents a
risk to aviation or national security. Because this prohibition was so
recently enacted, the Department is not aware of any studies or data
detailing its effect on small entities.
The purpose of this rule is to provide a mechanism by which
Providers may instruct aliens deemed by the Attorney General not to
present a risk to aviation or national security as a result of the risk
assessment conducted pursuant to section 113 of ATSA. This regulation
will help the affected Providers to furnish instruction to most of the
aliens in categories described in the Second Notice who had been
receiving flight instruction. Thus, this regulation will have a
beneficial effect on small businesses. The only costs incurred by
Providers complying with this regulation will be the minimal costs they
incur when providing the required notification to the Attorney General.
Unfunded Mandates Reform Act of 1995
This rule will not result in the expenditure by state, local and
tribal governments, in the aggregate, or by the private sector, of $100
million or more in one year, and it will not significantly or uniquely
affect small governments. Therefore, no actions were deemed necessary
under the provisions of the Unfunded Mandates Reform Act of 1995.
Small Business Regulatory Enforcement Fairness Act of 1996
This rule is not a major rule as defined by section 251 of the
Small Business Regulatory Enforcement Act of 1996. 5 U.S.C. 804. This
rule will not result in an annual effect on the economy of $100 million
or more; a major increase in costs or prices; or significant adverse
effects on competition, employment, investment, productivity,
innovation; or on the ability of United States-based companies to
compete with foreign-based companies in domestic and export markets.
Executive Order 12866
This rule is considered by the Department of Justice to be a
significant regulatory action under Executive Order 12866, section
3(f), Regulatory Planning and Review. Accordingly, this regulation has
been submitted to the Office of Management and Budget (``OMB'') for
review.
Paperwork Reduction Act of 1995
The Department of Justice has submitted the following information
collection requests to the Office of Management and Budget for review
and approval in accordance with the Paperwork Reduction Act of 1995.
This information collection has been approved and assigned OMB Control
Number 1105-0074. As part of this information collection, the Office of
Management and Budget has approved an emergency revision to this
information collection. The proposed information collections are
published to obtain comments from the public and affected agencies.
Comments are encouraged and will be accepted for sixty days. This
process is conducted in accordance with 5 CFR 1320.10.
If you have comments on the estimated public burden or associated
response time, suggestions, or need a copy of one of the proposed
information collection instruments with instructions or additional
information, please contact Aviation Training Security; U.S. Department
of Justice; 950 Pennsylvania Avenue, NW., Washington, DC 20530. Written
comments and suggestions from the public and affected agencies
concerning the proposed collections of information are encouraged. Your
comments should address one or more of the following four points:
(1) Whether the proposed collection of information is necessary for
the proper performance of the functions of the agency, including
whether the information will have practical utility;
(2) Whether the agency's estimate of the burden of the proposed
collection of information, including the validity of the methodology
and assumptions used, is accurate;
(3) How to enhance the quality, utility, and clarity of the
information to be collected, and
(4) How to minimize the burden of the collection of information on
those who are to respond, including through the use of appropriate
automated, electronic, mechanical, or other technological collection
techniques or other forms of information technology, e.g., permitting
electronic submission of responses.
The following is an overview of this information collection:
(1) Type of information collection: Revision of a currently
approved collection.
(2) The title of the form/collection: Flight Training Candidate
Checks Program.
(3) The agency form number, if any, and the applicable component of
the Department sponsoring the collection: FTTTF-2; Foreign Terrorist
Tracking Task Force, Aviation Training Security.
(4) Affected public who will be asked or required to respond, as
well as a brief abstract: Primary: Federal Government--Federal Aviation
Administration Flight Standards District Offices; Business or other
for-profit--U.S.-based flight training providers offering instruction
on the operation of aircraft having a maximum certificated takeoff
weight of 12,500 pounds or more; Individuals--aliens seeking flight
training in the United States on the operation of aircraft having a
maximum certificated takeoff weight of 12,500 pounds or more. This
information is being collected pursuant to section 113 of the Aviation
and Transportation
[[Page 41145]]
Security Act so that the Attorney General or his designee can determine
the risk presented to aviation or national security by a foreign
national receiving flight training in the United States.
(5) An estimate of the total number of respondents and the amount
of time estimated for an average respondent to respond/reply: There are
86 Flight Standards District Offices in the United States.
Representatives of each of these offices will log approximately one
hour per year per office on the system covered by this notice. Although
83,000 flight training providers are authorized to furnish aviation
training, the FAA estimates that only 10,000 of those offer training on
aircraft subject to regulation by section 113 of the Aviation and
Transportation Security Act. Projections for the annual number of alien
applicants to the system vary from 3,000 to 50,000 (excluding those
eligible for expedited review), but for purposes of estimation, the
Department contends that some 50,500 candidates are expected to qualify
for expedited review; Providers will submit form FTTTF-2 an average of
three times per year for each of these candidates. It is estimated that
only two minutes will be required from Providers for each submission of
FTTTF-2.
(6) An estimate of total public burden (in hours) associated with
the collection: The total public burden to Flight Standards District
Offices, flight training providers, and alien applicants for flight
training subject to this regulation will be approximately 5,050 hours
per year.
If additional information is required contact: Brenda E. Dyer,
Department Deputy Clearance Officer, United States Department of
Justice, Information Management and Security Staff, Justice Management
Division, Suite 1600, Patrick Henry Building, 601 D Street NW.,
Washington, DC 20530.
Executive Order 13132
This rule will not have a substantial direct effect on the States,
on the relationship between the National Government and the States, or
on the distribution of power and responsibilities among the various
levels of government. Therefore, in accordance with section 6 of
Executive Order 13132, it is determined that this rule does not have
sufficient Federalism implications to warrant the preparation of a
Federalism summary impact statement.
Executive Order 12988
This final rule meets the applicable standards set forth in
sections 3(a) and 3(b)(2) of Executive Order 12988.
List of Subjects in 28 CFR Part 105
Administrative practice and procedure, Airmen, Flight instruction,
Risk Assessments, Reporting and recordkeeping requirements, Security
measures.
Accordingly, chapter I of title 28 of the Code of Federal
Regulations is amended by adding a new part 105 to read as follows:
PART 105--SECURITY RISK ASSESSMENTS
Subpart A--[Reserved]
Subpart B--Aviation Training for Aliens and Other Designated
Individuals
Sec.
105.10 Definitions, purpose, and scope.
105.11 Individuals not requiring a security risk assessment.
105.12 Notification for candidates eligible for expedited
processing.
Authority: Section 113 of Public Law 107-71, 115 Stat. 622 (49
U.S.C. 44939).
Subpart B--Aviation Training for Aliens and Other Designated
Individuals
Sec. 105.10 Definitions, purpose, and scope.
(a) Definitions.
(1) ATSA means the Aviation and Transportation Security Act, Pub.
L. 107-71.
(2) Provider means a person or entity subject to regulation under
Title 49 Subtitle VII, Part A, United States Code. This definition
includes individual training providers, training centers, certificated
carriers, and flight schools. Virtually all private providers of
instruction in the operation of aircraft with a maximum certificated
takeoff weight of 12,500 pounds or more are covered by section 113 of
ATSA and are therefore subject to this rule. Providers located in
countries other than the United States are included in this definition
to the extent that they are providing training leading to a United
States license, certification, or rating. Providers located in
countries other than the United States who are providing training that
does not lead to a United States license, certification, or rating are
not included in this definition. When the Department of Defense or the
U.S. Coast Guard, or an entity providing training pursuant to a
contract with the Department of Defense or the U.S. Coast Guard,
provides training for a military purpose, such training is not subject
to FAA regulation and therefore these entities, when providing such
training, are not ``person[s] subject to regulation under this part''
within the meaning of section 113.
(3) Candidate means any person who is an alien as defined in
section 101(a)(3) of the Immigration and Nationality Act, 8 U.S.C.
1101(a)(3) who seeks training in the operation of an aircraft with a
maximum certificated takeoff weight of 12,500 pounds or more from a
Provider.
(4) Certificates with ratings recognized by the United States means
a valid certificate with ratings issued by the United States, or a
valid foreign license issued by a member of the Assembly of the
International Civil Aviation Organization, as established by Article 43
of the Convention on International Civil Aviation.
(b) Purpose and scope.
(1) Section 113 of ATSA prohibits Providers from furnishing
aviation instruction to candidates on aircraft with a maximum
certificated takeoff weight of 12,500 pounds or more without the prior
notification of the Attorney General. The purpose of this notification
is to allow the Attorney General to determine whether such an
individual presents a risk to aviation or national security before
flight instruction may begin. The Department believes that it is
unnecessary to make a candidate wait for 45 days in order to begin
training if the Department has completed its risk assessment.
Therefore, after providing the required notification to the Attorney
General as described in this subpart, the Provider may begin
instruction of a candidate if the Attorney General has informed the
Provider that the candidate does not present a risk to aviation or
national security as a result of the risk assessment conducted pursuant
to section 113 of ATSA. If the Attorney General does not provide either
an authorization to proceed with training or a notice to deny training
within 45 days after receiving the required notification, the Provider
may commence training at that time. All candidates must show a valid
passport establishing their identity to a Provider before commencing
training.
(2) In the event the Attorney General subsequently determines that
a candidate being trained does, in fact, present a risk to aviation or
national security and that training should be denied, the Attorney
General will instruct the Provider to terminate training.
(3) Providing false information or otherwise failing to comply with
section 113 of ATSA may present a threat to aviation or national
security and is subject to both civil and criminal sanctions. The
United States will take
[[Page 41146]]
all necessary legal action to deter and punish violations of this
section.
Sec. 105.11 Individuals not requiring a security risk assessment.
(a) Citizens and nationals of the United States. A citizen or
national of the United States is not subject to section 113 of ATSA. A
Provider must determine whether a prospective trainee is a citizen or
national of the United States prior to providing instruction on
aircraft with a maximum certificated takeoff weight of 12,500 pounds or
more. To establish United States citizenship or nationality, the
prospective trainee must show the Provider from whom he or she seeks
training any of the following documents as proof of United States
citizenship or nationality:
(1) A valid, unexpired United States passport;
(2) An original or government-issued certified birth certificate
with raised seal documenting birth in the United States or one of its
territories, together with a government-issued picture identification
of the individual named in the birth certificate;
(3) An original United States naturalization certificate with
raised seal, Form N-550 or Form N-570, together with a government-
issued picture identification of the individual named in the
certificate;
(4) An original certification of birth abroad with raised seal,
Form FS-545 or Form DS-1350, together with a government-issued picture
identification of the individual named in the certificate;
(5) An original certificate of United States citizenship with
raised seal, Form N-560 or Form N-561, together with a government-
issued picture identification of the individual named in the
certificate; or
(6) In the case of training provided to a federal employee
(including military personnel) pursuant to a contract between a federal
agency and a Provider, the agency's written certification as to its
employee's United States citizenship/nationality, together with the
employee's government-issued credentials or other federally-issued
picture identification.
(b) [Reserved]
Sec. 105.12 Notification for candidates eligible for expedited
processing.
(a) Expedited processing. The Attorney General has determined that
providing aviation training to certain categories of candidates is not
likely to present a risk to aviation or national security because of
the aviation training already possessed by these individuals or because
of risk assessments conducted by other agencies. Therefore, the
following categories of candidates are eligible for expedited
processing:
(1) Foreign nationals who are current and qualified as pilot in
command, second in command, or flight engineer with respective
certificates with ratings recognized by the United States for aircraft
with a maximum certificated takeoff weight of 12,500 pounds or more, or
who are currently employed and qualified by U.S. air carriers as pilots
on aircraft with a maximum certificated takeoff weight of 12,500 pounds
or more;
(2) Commercial, governmental, corporate, or military pilots of
aircraft with a maximum certificated takeoff weight of 12,500 pounds or
more who must receive familiarization training on a particular aircraft
in order to transport it to the purchaser or recipient, provided that
the training provided is limited to familiarization (familiarization
training is limited to that required to become proficient in
configurations and variations of an aircraft and does not include
initial qualification or type rating for an aircraft); or
(3) Military or law enforcement personnel who must receive training
on a particular aircraft given by the United States to a foreign
government pursuant to a draw-down authorized by the President under
section 506(a)(2) of the Foreign Assistance Act of 1961, as amended (22
U.S.C. 2318(a)(2)), provided that the training provided be limited to
familiarization.
(b) Notification. Before a Provider may conduct training for a
candidate eligible for expedited processing under paragraph (a) of this
section, the Provider must submit the following information to the
Department:
(1) The full name of the candidate;
(2) An unique student identification number created by the Provider
as a means of identifying records concerning the candidate;
(3) Date of birth;
(4) Country of citizenship;
(5) Passport issuing authority;
(6) Dates of training; and
(7) The category of expedited processing under paragraph (a) of
this section for which the candidate qualifies.
(c) Commencement of training. The notification must be provided
electronically to the Department by the Provider in the specific format
and by the specific means identified by the Department. Notification
must be made by e-mail. Only e-mail sent from an e-mail address
registered as a Provider will be accepted. Specific details about the
mechanism for the notification will be made available by the Department
or the FAA. After the complete notification is furnished to the
Department, the Provider may commence training the candidate as soon as
the Provider receives a response from the Department that the
individual does not present a risk to aviation or national security as
a result of the risk assessment conducted pursuant to section 113 of
ATSA and the candidate presents a valid passport establishing his or
her identity to the Provider. Receipt of this response by the
Department will be deemed approval by the Department to commence
training. If the Department later determines that the candidate
presents a risk to aviation or national security, it will immediately
notify the Provider to cease training. A Provider so notified shall
immediately cease providing any training to the person, regardless of
whether or in what manner such training had been authorized. The
Provider who submitted the candidate's identifying information will be
responsible for ensuring that the training is promptly halted,
regardless of whether another Provider is currently training the
candidate.
(d) Records. When a Provider conducts training for a candidate
eligible for expedited processing, the Provider must retain records to
document how the Provider made the determination that the candidate was
eligible. The Provider also must retain certain identifying records
regarding the candidate, including date of birth, place of birth,
passport issuing authority, and passport number. The Provider must be
able to reference these records by the unique student identification
number provided to the Department pursuant to this section. Providers
also are encouraged to maintain photographs of all candidates trained
by the Provider. Such records should be maintained for at least three
years following the conclusion of training by the Provider. The
Provider also should be able use the unique student identification
number to cross-reference any other documentation that the FAA may
require the Provider to retain regarding the candidate.
Dated: June 11, 2002
John Ashcroft,
Attorney General.
[FR Doc. 02-15060 Filed 6-11-02; 5:07 pm]
BILLING CODE 4410-19-P