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< Back to current issue of Immigration Daily < Back to current issue of Immigrant's Weekly

[Federal Register: February 13, 2003 (Volume 68, Number 30)]
[Rules and Regulations]               
[Page 7313-7321]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr13fe03-3]                         


=======================================================================
-----------------------------------------------------------------------


DEPARTMENT OF JUSTICE


28 CFR Part 105


[OAG 104; AG Order No. 2656-2003]
RIN 1105-AA80


 
Screening of Aliens and Other Designated Individuals Seeking 
Flight Training


AGENCY: Department of Justice.


ACTION: Final rule.


-----------------------------------------------------------------------


SUMMARY: Under section 113 of the Aviation and Transportation Security 
Act, certain aviation training providers subject to regulation by the 
Federal Aviation Administration 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 candidate seeking training and the Attorney General 
does not notify the aviation training provider within 45 days that the 
candidate presents a risk to aviation or national security. On June 14, 
2002, the Department issued two rulemaking documents, a proposed rule 
and an interim final rule, requesting comments on both documents.
    This final rule implements the Flight Training Candidate Checks 
Program, by which aviation training providers will provide the required 
notification for specific categories of flight training candidates. The 
final rule also sets forth how aviation training providers may begin or 
resume instruction for candidates whom 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 rule is effective March 17, 2003.


FOR FURTHER INFORMATION CONTACT: Robert E. Casey, Jr., Director, 
Foreign Terrorist Tracking Task Force, Mailbox 27, FBI Headquarters, 
935 Pennsylvania Avenue, NW., Washington, DC 20535, Telephone (703) 
414-9777.


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 (hereinafter referred to as ``Providers'') to aliens 
and other specified individuals. The Department recognized that section 
113 of ATSA became immediately effective upon enactment and that 
Providers had been forced to suspend the training of aliens covered by 
ATSA pending the implementation of a process for notification to the 
Attorney General and a determination 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 provisional 
advance consent for the training of three categories of aliens, based 
on an initial determination that persons in these categories did not 
appear to present a risk to aviation or national security. 67 FR 2238 
(Jan. 16, 2002). The First Advance Consent Notice was superseded and 
the categories of advance consent modified in a notice published on 
February 8, 2002 (``Second Advance Consent Notice''). 67 FR 6051 (Feb. 
8, 2002). The Second Advance Consent Notice was rescinded as of June 
14, 2002, with the publication of the interim final rule, which 
instituted ``expedited processing'' in lieu of advance consent for 
certain alien pilots. 67 FR 41140 (June 14, 2002).
    The Department also issued a proposed rule on the same date. 67 FR 
41147 (June 14, 2002). The proposed rule set forth the manner in which 
candidates not eligible for expedited processing would be able to seek 
aviation training in compliance with section 113 of ATSA. Comments were 
invited on both the interim final rule and the proposed rule.
    The Department received numerous comments from concerned 
individuals and organizations, including over 20 lengthy submissions. 
These comments covered numerous areas and all comments were considered. 
Many recommendations were adopted or taken into account in the 
preparation of this final rule. In addition, the Department made 
several stylistic changes to improve the clarity of the rule. A 
discussion of the comments follows.


1. Advance Consent


    A number of commenters expressed the view that the Department 
should institute the former ``advance consent'' provisions, under which 
candidates who were both fully licensed and qualified pilots of large 
aircraft could obtain training without being subject to any risk 
assessment or background check. It was the opinion of these commenters 
that checks of these particular candidates serve no legitimate national 
security interest and merely create a deterrent for foreign candidates 
to train in the United States.
    While the congressionally mandated requirements may have the 
unintended consequence of deterring some foreign nationals from seeking 
training from U.S. Providers, section 113 of ATSA requires the 
Department to conduct the risk assessments and the Department has no 
authority to waive this requirement. Moreover, the Department believes 
that the burden of complying with the regulations is comparatively 
small in relation to the benefits to security. During the brief time in 
which the expedited processing checks have been in effect, the process 
has resulted in the discovery and arrest of a number of persons for 
violations of the immigration and nationality laws, or on the basis of 
outstanding criminal warrants. The Department believes that the 
discovery of numerous immigration-related and criminal offenders among 
the expedited process candidates militates in favor of a thorough check 
system for all training candidates.


2. Expedited Processing


    With regard to the expedited processing regulations that were 
issued after the advance consent notice, one commenter suggested that 
``[a]ir carrier employees under employment contracts with U.S. air 
carriers that are issued FAA Operations Specifications should be 
handled differently than those not employed by U.S. air carriers.'' In 
support of this comment, the commenter noted that an individual hired 
by an American air carrier must provide detailed professional, medical, 
and other information to satisfy Federal Aviation Administration 
(``FAA'') requirements.
    The commenter also suggested that the requirement that training 
dates be specified in advance denied Providers and pilots much-needed 
flexibility in complying with continuing training requirements. The 
commenter stated that ``to force the air carriers to list an individual 
training date, to insist on an individual training course, to specify 
the exact time and date that a training event will be conducted * * * 
is not in the intent, or the letter of the Law.''
    The Department notes that while the FAA's system does contain 
certain security features, it is not focused on terrorism prevention in 
the same way as


[[Page 7314]]


section 113 of ATSA. Section 113 of ATSA requires the Department to 
conduct the risk assessments and the Department has no authority to 
waive this requirement. Moreover, through implementation of the 
expedited processing system, the Department already has discovered 
individuals attempting to seek covered flight training who were not 
eligible to be trained under the law. Accordingly, the Department will 
continue checks for all flight training candidates included within the 
ambit of section 113 of ATSA.
    As to the second point, the Department agrees that the vicissitudes 
of scheduling, in combination with the busy schedules of many 
professional aviators and Providers, warrants some additional 
flexibility. Accordingly, Sec.  105.10(b)(4) of the rule has been 
changed to allow for greater flexibility in training dates.
    The Department also received the suggestion that expedited 
processing should include foreign nationals not ``current and 
qualified'' under Sec.  105.12(a)(1). While the Department acknowledges 
that the ``current and qualified'' requirement for expedited processing 
does leave out certain individuals who might have been made eligible 
for expedited processing, the Department created easily-enforced and 
carefully-defined limits for expedited processing. In so doing, it 
consulted with the FAA and determined that the ``current and 
qualified'' requirement for expedited processing would be easily 
understood and enforced. The Department believes that, with the advent 
of web-based access to the risk assessment system, those candidates not 
eligible for expedited processing will have a turnaround time for their 
applications comparable to that of the expedited processing candidates. 
Accordingly, this aspect of the expedited processing requirement has 
not been changed.
    An aviation industry association suggested that the Department 
expand the expedited processing categories to include current employees 
of United States and foreign air carriers operating under Part 129 of 
the Federal Aviation Regulations regardless of whether the individuals 
were current and qualified in aircraft weighing 12,500 pounds or more. 
In addition, some commenters urged that ground training with no flight 
simulator time be excluded from the scope of the regulation, or at 
least that candidates be able to undergo ground training pending the 
completion of their risk assessments. Commenters were concerned that 
the scope of the regulations was too broad, and imposed too great an 
administrative burden.
    The Department has determined that waiving the ``current and 
qualified'' requirement could have a deleterious effect on security. 
While all employees of air carriers subject to FAA regulation do 
undergo certain background checks, these checks are not an adequate 
substitute for the risk assessment required pursuant to section 113 of 
ATSA. Under expedited processing, several individuals not eligible to 
be trained under the law have been discovered seeking flight training. 
Therefore, the Department will require thorough risk assessments for 
these candidates. As to the possibility of allowing certain training 
events to proceed either prior to or without a risk assessment, the 
Department cannot waive the requirements of ATSA. As a result, training 
cannot be allowed to begin before the end of the required 45-day 
notification period unless the Department has affirmatively authorized 
it. In most cases, the Department anticipates being able to authorize 
the commencement of training within a fraction of the 45-day 
notification period after submission of the candidate's fingerprints. 
Accordingly, requiring Providers to wait for authorization from the 
Department before beginning training should not impose a significant 
burden on those Providers.
    An aviation industry association pointed out that existing 
regulations of the Federal Aviation Administration require crew members 
of aircraft weighing more than 12,500 pounds to have what is known as a 
``type rating'' to operate them. Crew members of aircraft weighing 
12,500 pounds or less (except in the case of jets) are not required to 
have type ratings. This causes some confusion with regard to section 
113 of ATSA, which, by its terms, does not refer to type ratings, but 
instead to aircraft weighing 12,500 pounds and more.
    To resolve this divergence between section 113 of ATSA and FAA 
regulations regarding type ratings, the Department has amended Sec.  
105.12(a)(1) of the rule. Henceforth, persons who are qualified on 
aircraft with a maximum certificated takeoff weight of 12,500 pounds or 
less will not be eligible to obtain expedited processing.
    An aircraft manufacturer commented that, in many cases, fully 
qualified pilots come to receive familiarization training in connection 
with the purchase of an aircraft. At present, the regulations only 
provide for expedited processing of training requests for 
familiarization training provided in order to transport the aircraft to 
the purchaser or recipient. The commenter also pointed out that the 
familiarization training that accompanies the purchase of a new 
aircraft is not always provided directly in conjunction with the 
``delivery'' of the aircraft.
    The Department agrees that training provided in connection with the 
sale of a particular aircraft, as long as such training is limited to 
familiarization training and not basic flight instruction, should be 
subject to expedited processing. Accordingly, the language of Sec.  
105.12(a)(2) has been amended to broaden the expedited processing 
category that deals with familiarization training. As revised, the 
section no longer limits familiarization training to pilots directly 
involved with the transport of an aircraft to the purchaser. Rather, 
any familiarization training in connection with the sale of a 
particular aircraft will qualify for expedited processing, regardless 
of whether the trainee will ultimately be responsible for transporting 
the aircraft to the purchaser.


3. Candidates Not Eligible for Expedited Processing


    The process by which aliens not eligible for expedited processing 
will receive approval from the Department to be trained is a two-step 
process. It is generally similar to the process set forth in the 
proposed rule. As prescribed in this rule, the alien initially will be 
required to complete a detailed form requesting information regarding 
his or her background, including employment information and the source 
of funds being used to pay for the training. After this form is 
completed, it will be submitted to the Foreign Terrorist Tracking Task 
Force (``FTTTF'') on behalf of the alien by the Provider. Upon 
receiving this information, the FTTTF will conduct a detailed risk 
assessment of the alien. Assuming no potential risks are discovered, 
the Provider or the alien will be notified that the alien may now 
proceed to the Provider where he or she will receive the necessary 
fingerprinting instructions. After receiving this notice, the alien 
must have his or her fingerprints taken under the direct observation of 
a law enforcement or consular officer, or another specifically 
authorized individual.
    After the fingerprints are taken, the candidate will receive a 
receipt that should be given to the Provider. The Provider then will 
notify the FTTTF electronically that the alien has completed the 
fingerprinting requirement.


[[Page 7315]]


    After the Provider has furnished this notification, the Department 
will complete its final review of the risk presented by the alien. In 
most cases, the Department anticipates being able to authorize the 
commencement of training within a fraction of the 45-day notification 
period after submission of the candidate's fingerprints. If the 
Department subsequently uncovers a problem, the FTTTF will order the 
Provider to cease training, in accordance with section 113(b) of ATSA.


4. Training Dates


    Concerning flexibility with regard to training dates, one 
recommendation was that candidates be given up to 13 months to commence 
training following approval, provided there were no material changes in 
the information provided to the Department. It was also suggested that 
candidates be permitted to receive approval for several different 
courses of training.
    The Department has determined that sound security practices require 
that training take place at a time and place known to the Department 
and that training occur within a reasonable amount of time following 
the request. Nevertheless, the Department agrees that some additional 
flexibility within this program, the Flight Training Candidate Checks 
Program (``FTCCP''), would not be inconsistent with security interests. 
Hence, changes have been made to Sec.  105.10(b)(4) to allow actual 
training to occur within 30 calendar days of the scheduled training 
date.


5. Fingerprinting


    Several concerns were raised by commenters on the subject of the 
fingerprinting process. Among these was the concern that requiring 
candidates to go before local law enforcement as the primary method of 
collecting fingerprints would be unduly burdensome given the 
possibility of a waiting period of up to 45 days after the candidate 
arrives in the United States before training can commence.
    The Department agrees that requiring candidates to arrive in the 
United States 45 days prior to training would pose many problems and 
serve as a significant deterrent to U.S. training for some candidates. 
The 45-day time frame for action by the Department after the submission 
of all required information was established by the statute. The 
Department does not anticipate requiring this much time to conduct the 
necessary checks and assessments for the vast majority of candidates. 
The anticipated future use of electronic fingerprinting equipment will 
permit the fingerprint processing (including all necessary checks) to 
be completed in most cases in less than 24 hours after the proper 
electronic submission of a set of prints.
    Commenters also expressed a preference for collecting the required 
fingerprints at U.S. embassies and consulates before a candidate 
undertakes the expense of traveling to this country and being subject 
to a 45-day waiting period. This option may prove difficult given 
limitations on State Department diplomatic personnel. At the present 
time, embassies and consulates cannot accommodate candidates in this 
regard. The final rule, however, has been drafted to allow for 
fingerprints to be taken abroad at U.S. Government agencies as these 
options become more feasible in the future. In addition, the Department 
is negotiating to obtain access to a process that may allow candidates 
to comply with its fingerprint requirements through the Immigration and 
Naturalization Service and its successor organizational unit in the 
Department of Homeland Security Directorate of Border and 
Transportation Security (``INS''), which has the most advantageous 
system for the prompt electronic processing of fingerprints available 
in the government, to allow INS to take fingerprints at its Application 
Support Centers. It is anticipated that INS centers, including centers 
abroad, may become available for fingerprinting candidates in the 
future.
    Suggestions that fingerprints be collected in electronic format are 
consistent with the Department's future plans but dependent upon the 
resources and technology available to the FTCCP.
    Another comment questioned the purpose of the fingerprinting 
provisions. Commenters believed that the databases against which 
fingerprints would be checked contain, for the most part, information 
obtained from crimes committed in the United States. Accordingly, they 
said that such records check on a foreign national would rarely produce 
any meaningful results. In the past, this may have been true; however, 
Departmental fingerprint resources are expanding to include substantial 
amounts of relevant data--including foreign records--that justify the 
requirement. The requirement also will help to prevent identity fraud 
by training candidates.
    As provided in Sec.  105.13(c) and (f) of the regulation, the 
Department may authorize private individuals to take the required 
fingerprints on a case-by-case basis if it determines that such 
individuals possess the necessary training and will be able to ensure 
the integrity of the fingerprinting process. The Department anticipates 
that some Providers may seek to engage the services of dependable 
fingerprinting experts in order to facilitate the fingerprint 
submission process.


6. Weight Classes


    One commenter inquired about the distinction made in section 113 
between large aircraft (over 12,500 pounds, maximum certificated 
takeoff weight) and smaller aircraft. According to this commenter, 
``the statement on the FAQ portion of [the] web page * * * leads [him] 
to believe that any foreign nationals and nationals of the United 
States desiring to attend training at any FAA approved and certificated 
flight school must register.''
    At this time, section 113 applies only to training in the operation 
of an aircraft with a maximum certificated takeoff weight of 12,500 
pounds or more. Training in the operation of a smaller aircraft, 
however, is included under certain special circumstances. For example, 
some lines of jets, such as the Cessna Citation and the Lear, are 
manufactured with several different models with maximum certificated 
takeoff weights ranging above and below 12,500 pounds. A Provider must 
furnish the required notification if the Provider is furnishing 
training that would allow the candidate to fly an aircraft with a 
certificated takeoff weight of 12,500 pounds or more in accordance with 
applicable FAA regulations. This matter has been addressed in Sec.  
105.10(b)(1) of the rule.
    Section 113 applies to students who: (1) Are not citizens or 
nationals of the United States, or who fall into another category 
designated by the Under Secretary of Transportation for Security; (2) 
wish to receive flight training in aircraft with a maximum certificated 
takeoff weight of 12,500 pounds or more, or if the training would allow 
the candidate to fly a model of the same or substantially similar type 
of aircraft with a maximum certificated takeoff weight of 12,500 pounds 
or more in accordance with FAA regulations; and (3) wish to receive 
flight training from an FAA regulated flight training provider that 
will lead to an FAA certification, rating, or other FAA-covered 
distinction, regardless of whether training occurs in the United States 
or abroad.
    Another commenter stated that the rule prevents people from 
obtaining flight training in the United States, but does not prevent 
them from gaining the same skills in another country. The commenter 
also stated that training in the operation of a light aircraft, which 
is not subject to regulation under


[[Page 7316]]


section 113 of ATSA, might be sufficient to allow a potential terrorist 
to steer a large aircraft.
    Because Congress has not, to date, chosen to include training on 
aircraft with a maximum certificated takeoff weight of less than 12,500 
pounds within the scope of the statute, the Department does not have 
the discretion to expand the scope of this rule to cover training on 
such aircraft (except where training in such aircraft could lead to a 
type rating that might enable a candidate to fly a larger aircraft).


7. Dry Leasing


    Various organizations commented on the subject of a common industry 
practice known as ``dry-leasing.'' In a ``dry-lease'' arrangement, an 
air carrier utilizes an established flight training facility's 
equipment and classrooms for its crews but provides its own 
instructors, curriculum, and record keeping. The Department has 
determined that, in certain circumstances, flight training providers 
participating in dry leases as lessors will be subject to the reporting 
requirements of section 113 even though they may not have direct 
control over who receives training. Many believe that it is 
inappropriate to impose these requirements on facility owners given 
that they do not have a direct relationship with the candidate who is 
to receive training.
    The Department is sensitive to this concern. It is, however, the 
opinion of the Department and the FAA that, if U.S. flight training 
providers were able to dry lease simulator equipment to unregulated 
foreign providers, Congress's intent in passing ATSA would be 
frustrated.


8. The Web Site


    The Department also has received various comments on the web-based 
system designed for initial flight training candidates to submit 
information. Among the more technical concerns was the observation that 
the Web site contains a number of information fields designated as 
``optional.'' Commenters stated that the information required by the 
existing system is sufficiently extensive to obviate any need for 
``optional'' data. Instead, it was recommended that the Department 
collect only the data needed to determine if the candidate poses a 
threat to aviation or national security.
    It is not the Department's intention to make any portion of the 
FTCCP form ``optional.'' Nevertheless, some fields had to be made--at 
least provisionally--``optional'' from a functional perspective because 
the information might not be available or applicable to the individual 
filling out the form. For example, the form requests visa information, 
which some candidates may not possess at the time they submit their 
applications. In other cases, candidates filling out the form are asked 
for ``optional'' information about their Provider (i.e., Provider's Tax 
ID number, student ID number and end date for training). Commenters 
note that this information should not be required, as it should already 
be available to the Department.
    All applicable items on the form that can be answered by the 
candidate must be answered, and all have been selected as helpful in 
some manner to the necessary risk assessment. In most cases, the form 
cannot be submitted without complete information. Moreover, in filling 
out the form, candidates are required to give full and complete 
answers. Where any item of information sought from a candidate is 
available to the candidate, the FTCCP form's request for that item of 
information should not be considered ``optional.''
    An industry commenter also found the link on the FTCCP Web site to 
the FAA's home page confusing and unnecessary. The commenter felt that 
Providers already would have registered with the FTCCP and that the 
candidate would be able to locate the Provider through that system 
without any need to go to the FAA's web page.
    The Department believes that it is important to have a link to the 
FAA on the FTCCP website because the FAA maintains valuable information 
on this website (including lists of Providers) that will be important 
to users of the FTCCP Web site. Accordingly, with the advice and 
cooperation of the FAA, the Department has modified the Web site to 
eliminate confusion.


9. Relationship to Other Regulations


    A commenter pointed out an apparent conflict between the 
regulations created under section 113 of ATSA and certain regulations 
established by the INS. Under ATSA, the Department has up to 45 days to 
notify a Provider not to train a candidate. According to the commenter, 
this could conflict with an INS regulation requiring individuals 
admitted to the U.S. under F-1 (student) visas to commence their 
courses of study within 30 days of arrival. See 8 CFR 214.2(f)(5)(i). 
The Department notes the potential conflict. If students were compelled 
by ATSA to wait for 45 days after arriving in the United States before 
beginning training, they might thereby be forced into violating the 
INS's 30-day requirement. In practice, however, no conflict is 
anticipated.
    For the purposes of flight training and when feasible, the 
Department encourages students not eligible for expedited processing to 
arrive in the United States approximately two weeks before their 
scheduled training. In the vast majority of cases, this will be enough 
time to satisfy the fingerprint requirement and ensure that training 
begins when scheduled. It should also be noted that most individuals 
seeking aviation training independent of an employment contract or as 
part of a degree program will not have F-1 (student) visas.
    A manufacturing association stated that ``any law or regulation 
which discourages legitimate pilot candidates from training in the U.S. 
will undoubtedly compromise aviation safety globally, and could harm 
U.S. citizens traveling abroad.'' While supportive of security measures 
generally, the association believes that flight training candidates 
could be more efficiently checked and monitored if the INS and the 
FTTTF were to combine and coordinate their regulations regarding data 
collection and processing. In particular, the association made 
reference to the INS's Student and Exchange Visitor Information System 
(``SEVIS'') and the Automated Biometric Identification System 
(``IDENT''). The Department notes that SEVIS and IDENT do not serve the 
same purpose as the FTCCP. Nevertheless, the Department is making every 
effort to coordinate the resources of the FTCCP and the INS in 
implementing this system.
    The association also recommended that prospective flight students 
who were required to apply for M-1 (technical training) or J-1 
(exchange visitor programs) visas should submit information regarding 
their intentions with regard to aviation training at that time. Visas 
are issued by the State Department; information and risk assessments 
generated by the FTCCP will be provided to the State Department, which 
may choose to use these assessments and information in visa 
determinations.


10. The FTCCP Help Line


    Several commenters asked the Department to extend the hours of 
operation for the help line supporting this system because ``last 
minute changes in training schedules occur frequently and need to be 
addressed immediately.'' As noted above, the Department has made 
amendments to the rule to allow for some additional flexibility with 
regard to training dates.


[[Page 7317]]


Nevertheless, at this time, resource constraints prevent operation of 
the help line 24 hours per day, seven days per week.


11. Training


    There was some confusion as to what constitutes ``training'' within 
the meaning of section 113 of ATSA. Accordingly, the Department, in 
consultation with the FAA, has modified Sec.  105.10(a) of this rule to 
resolve this concern by including a definition of training that 
specifically includes ``ground school'' but excludes the provision of 
written materials, such as manuals.


12. Designations by the Under Secretary of Transportation for Security


    Section 113 of ATSA provides that the Under Secretary of 
Transportation for Security may designate individuals who, in addition 
to aliens, would be subject to the notification requirements of the 
statute should they seek training in the operation of an aircraft with 
a maximum certificated takeoff weight of 12,500 pounds or more. As of 
this time, the Under Secretary has made no designations. Because this 
is a matter within the discretion of the Under Secretary, this rule 
states only that individuals designated by the Under Secretary will not 
be eligible for expedited processing.


13. Training by or on Behalf of the Department of Defense


    Training by the Coast Guard or a component of the Department of 
Defense is not covered by section 113 of ATSA and is therefore not 
subject to this regulation. Likewise, training by Providers pursuant to 
contracts with the Department of Defense are not covered by the 
regulation. A question was raised as to whether training by 
subcontractors was within the ambit of the statute. The Department has 
added language to Sec.  105.10(a)(2) to clarify that any training 
conducted at the behest of the Coast Guard or Department of Defense for 
a military purpose is not subject to this rule, regardless of whether 
the training itself is administered by a subcontractor.


Conclusion


    Initial experience with the regulations implementing section 113 of 
ATSA generally has been positive. While the Department recognizes the 
burdens imposed on the aviation industry and individuals by ATSA, it is 
striving to produce a policy consistent with ATSA that will realize 
security goals while simultaneously protecting the commercial interests 
of the aviation industry.


Regulatory Procedures


Regulatory Flexibility Act


    In accordance with the Regulatory Flexibility Act (5 U.S.C. Sec.  
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. As a result, the Department has prepared the 
following Regulatory Flexibility Act analysis in accordance with 5 
U.S.C. 603.
    Section 113 of ATSA requires the Department to conduct risk 
assessments to determine if providing flight training to certain aliens 
presents a risk to aviation or national security. The Department has no 
authority to waive this requirement.
    The small entities affected by this rule include virtually all 
Providers furnishing flight instruction to aliens or other designated 
individuals 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 
candidates until the Attorney General is able to provide a means for 
determining whether the candidate presents a risk to aviation or 
national security. The purpose of this rule is to provide a mechanism 
by which Providers may instruct candidates 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.
    Because section 113 of ATSA prohibits training of aliens without a 
prior risk assessment, the issuance of the rule will have a beneficial 
effect on small businesses because the rule will allow Providers to 
resume training for aliens determined by the Attorney General not to 
present a risk to aviation or national security. 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. The Department is not aware of any studies or 
data detailing the effects of this regulation on small entities.


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.
    The amendments made by ATSA prohibit the training by Providers of 
any alien without notification and clearance by the Attorney General. 
Notwithstanding the institution of the expedited processing procedures 
on June 14, 2002, this prohibition continues to impose a substantial 
economic burden on both Providers and air carriers utilizing alien 
pilots and flight engineers because aliens not eligible for expedited 
processing have been prohibited from receiving training since the 
enactment of the ATSA. These regulations are essential to providing a 
means to allow Providers and air carriers to function smoothly by 
allowing flight instruction for those candidates not provided relief 
through the publication of the interim final rule.


Paperwork Reduction Act of 1995


    This information collection has been approved and assigned OMB 
Control Number 1105-0074. 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


[[Page 7318]]


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, Reporting and 
recordkeeping requirements, security measures, Terrorism.




    Accordingly, chapter I of title 28 of the Code of Federal 
Regulations is amended by revising 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.
105.13 Notification for candidates not eligible for expedited 
processing.
105.14 Risk assessment for candidates.


    Authority: Section 113 of Pub. L. 107-71, 115 Stat. 622 (49 
U.S.C. 44939).


Subpart B




Sec.  105.10  Definitions, purpose, and scope.


    (a) Definitions.
    ATSA means the Aviation and Transportation Security Act, Public Law 
107-71.
    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), 
or a person specified by the Under Secretary of Transportation for 
Security, who seeks training in the operation of an aircraft with a 
maximum certificated takeoff weight of 12,500 pounds or more from a 
Provider.
    Certificates with ratings recognized by the United States means a 
valid pilot or flight engineer certificate with ratings issued by the 
United States, or a valid foreign pilot or flight engineer 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.
    Notification means providing the information required under this 
regulation in the format and manner specified.
    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 (49 U.S.C. 
44939) 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 who ``dry-lease'' 
simulator equipment to individuals or entities for use within the 
United States are deemed to be providing the training themselves if the 
lessee is not subject to regulation under Title 49. Providers located 
in countries other than the United States who are providing training 
that does not lead to a United States pilot or flight engineer 
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 (including a subcontractor), provides training for a 
military purpose, such training is not subject to Federal Aviation 
Administration (FAA) regulation. Accordingly, these entities, when 
providing such training, are not ``person[s] subject to regulation 
under this part'' within the meaning of section 113 of ATSA.
    Training means any instruction in the operation of an aircraft, 
including ``ground school,'' flight simulator, and in-flight training. 
It does not include the provision of training manuals or other 
materials, and does not include mechanical training that would not 
enable the trainee to operate the aircraft in flight.
    (b) Purpose and scope.
    (1) Section 113 of ATSA (49 U.S.C. 44939) prohibits Providers from 
furnishing candidates with training in the operation of an aircraft 
with a maximum certificated takeoff weight of 12,500 pounds or more 
without the prior notification of the Attorney General. Training in the 
operation of smaller aircraft is considered to be training in the 
operation of an aircraft with a maximum certificated takeoff weight of 
12,500 pounds or more if the training would lead to a type rating 
allowing the candidate to operate a model of the same or substantially 
similar type of aircraft with a maximum certificated takeoff weight of 
12,500 pounds or more in accordance with FAA regulations. 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 training may begin. The Department believes that it is 
not required 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 Attorney General has determined as a result of the 
risk assessment conducted pursuant to section 113 of ATSA that 
providing the training does not present a risk to aviation or national 
security. 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 who are not citizens 
or nationals of the U.S. must show a valid passport establishing their 
identity to a Provider before commencing training.
    (2) The Department may, at any time, require the resubmission of 
all or a portion of a candidate's training request, including 
fingerprints. If, after approving any training application, the 
Department determines that a candidate presents a risk to aviation or 
national security, it will notify the Provider to cease training. 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.
    (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 all necessary legal action to deter and punish 
violations of this section.
    (4) Providers should make every effort to ensure that approved 
training occurs on the dates specified in the training request at the 
location of the Provider who submitted the request. However, where 
scheduling problems or other exigent circumstances prevent this from 
happening, training may be rescheduled for any time within 30 days of 
the approved training dates without submitting an additional request. 
If any scheduling change of greater than 30 days occurs, a new request 
with the


[[Page 7319]]


corrected training dates must be submitted. Any proposed change in 
location or Provider must precipitate a new request, although Providers 
may employ the assistance of other Providers or their facilities for a 
portion of the training, provided that the substantial majority of the 
training occurs at location of the Provider who submitted the request.




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 otherwise 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 
training in the operation of an 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 a registrar's raised, embossed, impressed or multicolored seal, 
registrar's signature, and the date the certificate was filed with the 
registrar's office, which must be within 1 year of birth, together with 
a government-issued picture identification of the individual named in 
the birth certificate (the birth certificate must establish that the 
person was born in the United States or in an outlying possession, as 
defined in section 101(a)(29) of the Immigration and Nationality Act (8 
U.S.C. 1101(a)(29)));
    (3) An original United States naturalization certificate with 
raised seal, INS Form N-550 or INS 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, 
Department of State 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, INS 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) Exception. Notwithstanding paragraph (a) of this section, a 
Provider is required to provide notification to the Attorney General 
with respect to any individual specified 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 under Sec.  105.12 of this part.




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 
presents a minimal additional 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, unless the candidate is an individual specified by the 
Under Secretary of Transportation for Security:
    (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 FAA for aircraft with a 
maximum certificated takeoff weight of over 12,500 pounds, or who are 
currently employed and qualified by U.S. regulated air carriers as 
pilots on aircraft with a maximum certificated takeoff weight of 12,500 
pounds or more;
    (2) Foreign nationals who are commercial, governmental, corporate, 
or military pilots of aircraft with a maximum certificated takeoff 
weight of 12,500 pounds or more who are receiving training on a 
particular aircraft in connection with the sale of that aircraft, 
provided that the training provided is limited to familiarization 
(i.e., training required by one who is already a competent pilot to 
become proficient in configurations and variations of a new aircraft) 
and not initial qualification or type rating; or
    (3) Foreign 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)), if the training provided is 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) A 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. (1) 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 electronic mail. Only notifications sent from an 
electronic mail address registered as a Provider will be accepted. 
Specific details about the mechanism for the notification will be made 
available by the Department and distributed through the FAA.
    (2) 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 
foreign national candidate presents a valid passport establishing his 
or her identity to the Provider. Receipt of this response from the 
Department will be deemed approval by the Department to commence 
training.
    (d) Records. When a Provider conducts training for a candidate 
eligible for expedited processing, the Provider must retain a copy of 
the relevant pages of the passport and other 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


[[Page 7320]]


section. Providers also are encouraged to maintain photographs of all 
candidates trained by the Provider. Such records must be maintained for 
at least three years following the conclusion of training by the 
Provider. The Provider must also be able to use the unique student 
identification number to cross-reference any other documentation that 
the FAA may require the Provider to retain regarding the candidate.




Sec.  105.13  Notification for candidates not eligible for expedited 
processing.


    (a) A Provider must submit a complete Flight Training Candidate 
Checks Program (FTCCP) 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 of this part, are 
not subject to a security risk assessment. A separate FTCCP form must 
be submitted for each course or instance of training requested by a 
candidate. A set of fingerprints must be submitted in accordance with 
this rule prior to the commencement of any training. 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 FTCCP form must be sent to the Attorney General 
via electronic submission at https://www.flightschoolcandidates.gov. 
The form must be submitted no more than three months prior to the 
proposed training dates. No paper submissions of this form will be 
accepted.
    (1) In order to ensure that such electronic submissions are made by 
FAA certificated training providers, Providers must receive initial 
access to the system through the FAA. Providers should register through 
their local FAA Flight Standards District Offices. The FAA has decided 
that registration will be only by appointment. Upon registration, 
Providers will be sent (via electronic mail) an access password to use 
the system.
    (2) Candidates may complete the online FTCCP form at https://www.flightschoolcandidates.gov
 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. 
To reduce the burden on the candidates, personal information needs only 
to be updated, rather than reentered, for each subsequent training 
request.
    (c) Candidates must submit fingerprints to the Federal Bureau of 
Investigation (FBI) as part of the identification process. These 
fingerprints must be taken by, or under the supervision of, a federal, 
state, or local law enforcement agency, or by another entity approved 
by the Director of the Foreign Terrorist Tracking Task Force, in 
consultation with the FBI's Criminal Justice Information Services 
Division. Where available, fingerprints may be taken by U.S. government 
personnel at a United States embassy or consulate. Law enforcement 
agencies and U.S. diplomatic installations are not required to 
participate in this process, but their cooperation is strongly 
encouraged. Any individual 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 designated by the Under Secretary of 
Transportation for Security, 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 law enforcement or consular officer, or another specifically 
authorized individual. Individuals other than law enforcement or 
consular officers will only be approved on a case-by-case basis by the 
Director of the Foreign Terrorist Tracking Task Force, in consultation 
with the FBI's Criminal Justice Information Services Division, upon a 
showing that they possess the necessary training and will ensure the 
integrity of the fingerprinting process;
    (3) The fingerprints must be processed by means approved by the 
Director of the Foreign Terrorist Tracking Task Force, in consultation 
with the FBI's Criminal Justice Information Services Division;
    (4) The fingerprint submissions must be forwarded to the FBI in the 
manner specified by the Director of the Foreign Terrorist Tracking Task 
Force, in consultation with the FBI's Criminal Justice Information 
Services Division;
    (5) Officials taking fingerprints must 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 agency, 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.
    (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 can demonstrate that compliance 
with the fingerprint requirement is not practicable, a temporary waiver 
of the requirement may be requested by contacting the Foreign Terrorist 
Tracking Task Force. The Director of the Foreign Terrorist Tracking 
Task Force will have the discretion to grant the waiver, deny the 
waiver, or prescribe a reasonable, alternative manner of complying with 
the fingerprint requirement for each Provider location.
    (f) The 45-day review period by the Department will not start until 
all the required information has been submitted, including 
fingerprints.




Sec.  105.14  Risk assessment for candidates.


    (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) of this part presents minimal 
additional risk to aviation or national security and therefore has 
established an expedited processing procedure for these aliens. Based 
on the information contained in each FTCCP 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 FTCCP form by the Provider, the 
Department will perform a preliminary risk assessment.


[[Page 7321]]


    (1) If the Department determines that a candidate does not present 
a risk to aviation or national security as a result of the preliminary 
risk assessment, the candidate or the Provider will be notified 
electronically that the Provider may supply the candidate with the 
appropriate materials and instructions to complete the fingerprinting 
process described in Sec.  105.13(c) and (d) of this part.
    (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 complete training request submitted by a Provider, the 
Department will promptly conduct an appropriate risk assessment. Every 
effort will be made to respond to a training request in the briefest 
time possible. In routine cases, the Department anticipates granting 
approval to train within a fraction of the 45-day notification period 
after receiving a complete, properly submitted request, including 
fingerprints. In the unlikely event that no notification or 
authorization by the Department has occurred within 45 days after the 
proper submission under these regulations of all the required 
information, the Provider may proceed with the training, upon 
establishing the candidate's identity in accordance with paragraph (c) 
of this section.
    (c) Providers must ascertain the identity of each candidate. For 
candidates who are not citizens or nationals of the United States 
designated by the Under Secretary of Transportation for Security, a 
Provider must inspect the candidate's passport and visa to verify the 
candidate's identity before providing training. Candidates who are 
citizens or nationals of the United States must present the 
documentation described in Sec.  105.11(a) of this part. 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, 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 commenced or 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 Secretary of Homeland Security as to the 
identity of the alien and the determination made.


    Dated: February 6, 2003.
John Ashcroft,
Attorney General.
[FR Doc. 03-3384 Filed 2-12-03; 8:45 am]
BILLING CODE 4410-19-P





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