[Federal Register Volume 67, Number 115 (Friday, June 14, 2002)]
[Proposed Rules]
[Pages 41147-41152]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-15061]
Federal Register / Vol. 67, No. 115 / Friday, June 14, 2002 /
Proposed Rules
[[Page 41147]]
-----------------------------------------------------------------------
DEPARTMENT OF JUSTICE
28 CFR Part 105
[OAG 104; AG Order No. 2591-2002]
RIN 1105-AA80
Screening of Aliens and Other Designated Individuals Seeking
Flight Training
AGENCY: Department of Justice.
ACTION: Proposed rule with request for comments.
-----------------------------------------------------------------------
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
proposed rule would implement a process by which aviation training
providers would provide the required notification, the Attorney General
would respond, and the aviation training providers would begin or
resume instruction for candidates who do not present a to aviation and
national security.
DATES: Written comments on the proposed regulation 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 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 notification requirement applies to aliens as set forth above.
As also noted, 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. In the event that the Under Secretary of
Transportation for Security specifies other individuals, these
individuals will be subject to the requirements contained in this
proposed rule.
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 (Jan 16, 2002). The First
Advance Consent Notice was subsequently superseded, and the categories
of advance consent modified in a notice effective February 8, 2002
(``Second Advance Consent Notice'' or
[[Page 41148]]
``Second Notice''). 67 FR 6051 (Feb. 8, 2002).
The Department also published an interim final rule with a request
for comments (``interim rule'') that rescinded the Second Advance
Consent Notice. The interim rule, published concurrently with this
rule, implemented an expedited processing procedure for aliens in two
of the four categories listed in the Second Notice and added one
additional category.
This proposed rule addresses those candidates not covered by the
concurrently published interim rule and provides the process by which
Providers may notify the Attorney General with respect to candidates
who are not within any of the expedited processing categories.
Providers may not train candidates in the operation of aircraft with a
maximum certificated takeoff weight of 12,500 pounds or more unless
they have complied with this rule, or unless the candidate is included
within a category of expedited processing and the Provider has been
notified by the Department that the candidate has been found not to
present a risk to aviation or national security as result of the risk
assessment conducted pursuant to section 113 of ATSA. Because these
candidates may present a greater risk to aviation or national security
than candidates eligible for expedited processing, Providers planning
to train these candidates will need to furnish more detailed
information, including fingerprints, to the Department.
Availability of Flight Training Candidate Checks Program Notification
System for Review
The notification system for pilots not eligible for expedited
processing will be one of the first electronic-based systems developed
by the Department. The Department wants to make sure that the public
and the aviation industry had an opportunity to comment on this
interface. As a result, the Flight Training Candidate Checks Program
proposed notification system has been made available for public review.
The public is welcome to access the system, but should refrain from
submitting any data. No candidate forms should be submitted through
this notification system until a final rule implementing the system is
in effect. The submission of identifying applicant information through
this system will not constitute notification of the Attorney General as
required by section 113 of ATSA. Any notifications submitted to the
Department for pilots eligible for expedited processing should be
provided in accordance with the interim rule published concurrently
with this proposed rule.
Risk Assessments for Aliens Not Granted Expedited Processing and Other
Persons Specified by the Under Secretary of Transportation for Security
Providers wishing to train aliens who do not fall within a category
of expedited processing, or any other individuals specified by the
Under Secretary of Transportation for Security, will need to submit
detailed identifying information to the Department before providing
training. The information must be provided to the Department via
electronic submission on the form titled Flight Training Candidate
Checks Program, as described in section 105.13 of this rule. This form
requests the submission of certain identifying data, including the
covered candidate's name, address, and physical characteristics;
various government-issued identification numbers; information regarding
the source of the funds to pay for instruction; information about
immediate family members; occupational and education information; and
information regarding citizenship. The form is designed to be the first
part of a two-part process; candidates also will be required to submit
a set of fingerprints.
Limiting submissions to electronic submissions will 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 vastly increased
processing times, thus further burdening both the flight instruction
industry and candidates.
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. 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. In order to reduce the potential burden on
Providers, candidates may complete the on-line form themselves. After
the candidate completes the form, the Provider must verify that the
candidate is a bona fide applicant for instruction and complete the
submission process.
Fingerprinting Requirements for Candidates
Aliens who do not fall within a category of expedited processing,
and other individuals specified by the Under Secretary of
Transportation for Security, also must submit fingerprints to the
Federal Bureau of Investigation (``FBI'') prior to the commencement of
instruction as part of the identification process. These fingerprints
must be taken by federal, state, or local law enforcement agencies, or
any other official approved by the Director of the FTTTF. The
fingerprints must be taken under the direct observation of the
official. Procedures by which such fingerprints may be taken currently
exist in the states for many other purposes. The Department, however,
welcomes comments regarding whether or how candidates might be allowed
to have their fingerprints taken outside the United States.
The fingerprints must be recorded on fingerprint cards distributed
by the Director of the FTTTF for that purpose, or processed by other
means approved by the Director of the FTTTF. The fingerprint
submissions must be forwarded to the FBI in a manner specified by the
Director of the FTTTF. The Provider and the official taking the
fingerprints will receive, through the FTTTF, explicit instructions for
fingerprint submissions. Officials taking fingerprints should ensure
that any fingerprints provided to the FBI are not placed within the
control of the candidate or Provider at any time. Candidates must
provide appropriate identification, including a passport if the
candidate is an alien, at the time of fingerprinting.
Candidates submitting fingerprints must pay for the costs
associated with taking and processing the fingerprints in a form and
manner approved by the FBI. This payment process may vary depending
upon where the fingerprints are taken. In accordance with Pub. L. No.
101-515, as amended (28 U.S.C. 534 note), the Director of the FBI may
establish and collect fees to process fingerprint identification
records and name checks for certain purposes, including non-criminal
justice and licensing purposes. In addition to the
[[Page 41149]]
cost to the FBI for conducting its review, other fees may be imposed,
including the cost of taking the fingerprints and the cost of
processing the fingerprints and submitting them to the FBI for review.
The federal component of this fee currently is $31. Depending on the
entity taking the fingerprints, however, an additional fee also may be
imposed for taking and submitting the fingerprints to the FBI. Because
the total fee may vary by state, the candidate must check with the
entity taking the fingerprints to determine the applicable total fee.
This payment must be made at the designated rate for each set of
fingerprints submitted. The procedure for taking and submitting
fingerprints is described in section 105.13 of this rule. Fingerprints
will be considered submitted for purposes of this rule once the
Provider has provided on-line notification through the system to the
Department that the candidate's fingerprints have been taken in
accordance with section 105.13 of this rule.
The Department recognizes that some Providers furnish training to
candidates at facilities located outside the United States. In those
instances, it may be impracticable for a candidate to be fingerprinted
in accordance with section 105.13 of this rule. Therefore, on a case-
by-case basis, a Provider wishing to train a candidate outside the
United States may request a waiver of the fingerprinting requirements
from the FTTTF. The waiver request must detail why it is impracticable
for the alien to be fingerprinted in accordance with section 105.13.
Attorney General Review
After the Provider submits all the information that is required
under this rule, including fingerprints, 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. In the event that
the Attorney General does not instruct the Provider to deny training
within 45 days of the submission and verification of all the
information required under this rule (including the submission of
fingerprints), 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
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. Anecdotal evidence, however,
suggests that while some entities may have experienced no decline in
business, other entities estimate that they may have experienced as
much as a 30% loss of income because they are not able to provide
flight instruction to aliens.
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 aliens who
had been unable to receive flight instruction since section 113 of ATSA
was enacted. 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 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. 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
[[Page 41150]]
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-1; 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 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 an average of 26,000 candidates will apply
annually using the primary form, FTTTF-1, and that on average these
candidates will apply twice per year. Because entries subsequent to the
first will take less time, the Department estimates that each alien
applicant using FTTTF-1 will spend approximately 45 minutes on the
system per year.
(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 19,500 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.
PART 105--SECURITY RISK ASSESSMENTS
* * * * *
Subpart B--Aviation Training for Aliens and Other Designated
Individuals
1. The Authority citation continues to read as follows:
Authority: Section 113 of Public Law 107-71, 115 Stat. 622 (49
U.S.C. 44939).
2. Amend Sec. 105.10 by revising paragraph (a)(3) and paragraph
(b)(1) to read as follows:
Sec. 105.10 Definitions, purpose, and scope.
(a) * * *
(3) Candidate means any person seeking training in the operation of
an aircraft with a maximum certificated takeoff weight of 12,500 pounds
or more from a Provider who is either:
(i) An alien as defined in section 101(a)(3) of the Immigration and
Nationality Act, 8 U.S.C. 1101(a)(3); or
(ii) Is within a class of persons as specified by the Under
Secretary of Transportation for Security, pursuant to section 113(a) of
ATSA, 49 U.S.C. 44939(a).
* * * * *
(b) * * *
(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 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, including those
[[Page 41151]]
granted expedited processing in accordance with Sec. 105.12, must show
a valid passport establishing their identity to a Provider before
commencing training. Candidates who are citizens or nationals of the
United States, but who were required to provide notification to the
Attorney General may present a valid United States picture driver's
license in lieu of a passport.
* * * * *
3. Amend Sec. 105.11 by revising the introductory text to paragraph
(a) and adding a new paragraph (b) to read as follows;
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,
unless designated by the Under Secretary of Transportation for
Security. 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:
* * * * *
(b) Exception. Notwithstanding paragraph (a) of this section, a
Provider is required to provide notification to the Attorney General
with respect to any candidates who are within a class of persons
designated by the Under Secretary of Transportation for Security.
Individuals specified by the Under Secretary of Transportation for
Security will be identified by procedures developed by the Department
of Transportation and are not eligible for expedited processing.
* * * * *
4. Amend Sec. 105.12 by revising the introductory text to paragraph
(a) as follows:
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, candidates
determined by Providers to be eligible for expedited processing are
subject to the notification requirements of this section, but do not
have to comply with the more detailed notification requirements of
section 105.13, unless the candidates are within a class of persons as
designated by the Under Secretary of Transportation for Security. The
following categories of candidates are eligible for expedited
processing:
* * * * *
5. Adding a new Sec. 105.13 to read as follows:
Sec. 105.13 Notification for candidates not eligible for expedited
processing.
(a) A Provider must submit a complete Flight Training Candidate
Checks Program form and arrange for the submission of fingerprints to
the Department in accordance with this section prior to providing
flight training, except with respect to persons whom the Provider has
determined, as provided in Sec. 105.11 or Sec. 105.12, are not subject
to a security risk assessment or are eligible for expedited processing.
A separate form must be submitted for each course or instance of
training requested by a candidate. Where a Provider enlists the
assistance of another Provider in training a candidate, no additional
request need be submitted, as long as the specific instance of training
has been approved.
(b) The completed form should be sent to the Attorney General via
electronic submission at https://www.flightschoolcandidates.gov/insdoc/index.html. No paper submissions of this form will be accepted.
(1) In order to ensure that such electronic submissions are made by
Federal Aviation Administration (FAA) certificated training providers,
Providers must receive initial access to the system through the FAA.
Providers should register through their local Flight Standards District
Offices. The FAA has decided that registration will be by appointment
only. Upon registration, Providers will be sent (via electronic mail)
an access password to use the system.
(2) Candidates may complete the online form at https://www.flightschoolcandidates.gov/insdoc/index.html to reduce the burden
on the Provider. After the form has been completed by a candidate, it
will be forwarded electronically to the Provider for verification that
the candidate is a bona fide applicant. Verification by the Provider
will be considered submission of the form for purposes of paragraph (a)
of this section. In order to reduce the burden on the candidates,
personal information only needs to be updated, rather than reentered,
for each subsequent training request.
(c) Candidates also must submit fingerprints to the Federal Bureau
of Investigation (FBI) as part of the identification process. These
fingerprints must be taken by a federal, state, or local law
enforcement agency, or any other official approved by the Director of
the Foreign Terrorist Tracking Task Force. In the case of candidates
seeking training from providers located in countries other than the
United States, fingerprints may be taken by officials at the nearest
United States embassy or consulate. Law enforcement agencies are not
required to participate in this process, but their cooperation is
strongly encouraged. Any officials taking fingerprints as part of the
notification process must comply with the following requirements when
taking and processing fingerprints to ensure the integrity of the
process:
(1) Candidates must provide two forms of identification at the time
of fingerprinting. In the case of aliens, one of the forms of
identification must be the individual's passport; in the case of United
States citizens or nationals, a valid photo driver's license issued in
the United States may be submitted in lieu of a passport.
(2) The fingerprints must be taken under the direct observation of
a government official;
(3) The fingerprints must be recorded on fingerprint cards
distributed by the Director of the Foreign Terrorist Tracking Task
Force for that purpose, or processed by other means approved by the
Director of the Foreign Terrorist Tracking Task Force;
(4) The fingerprint submissions must be forwarded to the FBI in the
manner specified by the Director of the Foreign Terrorist Tracking Task
Force;
(5) Officials taking fingerprints should ensure that any
fingerprints provided to the FBI are not placed within the control of
the candidate or the Provider at any time; and
(6) Candidates must pay for all costs associated with taking and
processing their fingerprints.
(d) In accordance with Public Law 101-515, as amended, the Director
of the FBI is authorized to establish and collect fees to process
fingerprint identification records and name checks for certain
purposes, including non-criminal justice and licensing purposes. In
addition to the cost to the FBI for conducting its review, other fees
may be imposed, including the cost of taking the fingerprints and the
cost of processing the fingerprints and submitting them to the FBI for
review. Because the total fee may vary by state, the candidate must
check with the
[[Page 41152]]
entity taking the fingerprints to determine the applicable total fee.
This payment must be made at the designated rate for each set of
fingerprints submitted.
(e) In some cases, candidates seeking training from Providers
abroad may be unable to obtain fingerprints. If a Provider located in a
country other than the United States determines that compliance with
the fingerprint requirement is not practicable, it may request, in
writing, a waiver of the requirement, on a case-by-case basis, by
contacting the Foreign Terrorist Tracking Task Force, Aviation Industry
Liaison. In such a case, the Foreign Terrorist Tracking Task Force will
have discretion to grant the waiver; deny the waiver; or prescribe a
reasonable alternative manner of complying with the fingerprint
requirement.
(f) The 45-day review period by the Department will not start until
all the required information has been submitted, including
fingerprints.
6. Adding a new Sec. 105.14 to read as follows:
Sec. 105.14 Risk assessment for candidates not granted expedited
processing.
(a) It is the responsibility of the Department of Justice to
conduct a risk assessment for each candidate. The Department has made
an initial determination that providing training to the aliens in the
categories set forth in Sec. 105.12(a) presents little risk to aviation
or national security and therefore has established an expedited
processing procedure for these aliens. Based on the information
contained in each Flight Training Candidates Checks Program form and
the corresponding set of fingerprints, the Department will determine
whether a candidate not granted expedited processing presents a risk to
aviation or national security.
(b) After submission of the Flight Training Candidate Checks
Program form by the Provider, the Department will perform an interim
risk assessment.
(1) If the Department determines that a candidate does not present
a risk to aviation or national security as a result of the interim risk
assessment, the candidate and/or the Provider will be notified
electronically that the candidate may proceed to the Provider to
receive appropriate materials to complete the fingerprinting process
described in Sec. 105.13(c) and (d). The Provider's e-mail also will
provide a toll-free telephone number through which ``fingerprint
packets'' will be provided.
(2) If the Department determines that the candidate presents a risk
to aviation or national security, when appropriate, it will notify the
Provider electronically that training is prohibited.
(3) For each training request, the Department will have 45 days
from the date on which all required information, including
fingerprints, is submitted to conduct an appropriate risk assessment.
Every effort will be made to respond to a training request in the
briefest time possible. If no notification or authorization by the
Department has occurred within 45 days of submission of all the
required information, the Provider may proceed with the training, upon
establishing the candidate's identity in accordance with paragraph (d)
of this section.
(c) Providers must ascertain the identity of each candidate. For
candidates who are not citizens or nationals of the United States, a
Provider must inspect the candidate's passport to verify the
candidate's identity before providing training; candidates who are
citizens or nationals of the United States must present either a valid
United States passport or a valid United States picture driver's
license. If the candidate's identity cannot be verified, then the
Provider cannot proceed with training.
(d) If, at any time after training has begun, the Department
determines that a candidate subject to this section being trained by a
Provider presents a risk to aviation or national security, when
appropriate, the Department shall 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.
(e) With regard to any determination as to an alien candidate's
eligibility for training, when appropriate, the Department will inform
the Secretary of State and the Commissioner of the Immigration and
Naturalization Service as to the identity of the alien and the
determination made.
Dated: June 11, 2002
John Ashcroft,
Attorney General.
[FR Doc. 02-15061 Filed 6-11-02; 5:07 pm]
BILLING CODE 4410-19-P