[Federal Register Volume 67, Number 115 (Friday, June 14, 2002)]
[Rules and Regulations]
[Pages 41140-41146]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-15060]



[[Page 41139]]

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Part IV





Department of Justice





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28 CFR Part 105



Screening of Aliens and Other Designated Individuals Seeking Flight 
Training; Interim Final Rule and Proposed Rule



Rescission of Second Notice of Advance Consent for Providing Certain 
Aviation Training; Notice

  Federal Register / Vol. 67, No. 115 / Friday, June 14, 2002 / Rules 
and Regulations  

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DEPARTMENT OF JUSTICE

28 CFR Part 105

[OAG 104; AG Order No. 2590-2002]
RIN 1105-AA80


Screening of Aliens and Other Designated Individuals Seeking 
Flight Training

AGENCY: Department of Justice.

ACTION: Interim final rule with request for comments.

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SUMMARY: Under section 113 of the Aviation and Transportation Security 
Act, certain aviation training providers subject to regulation by the 
Federal Aviation Administration (``FAA'') are prohibited from providing 
training to aliens and other designated individuals in the operation of 
aircraft with a maximum certificated takeoff weight of 12,500 pounds or 
more, unless the aviation training provider notifies the Attorney 
General of the identity of the alien seeking training and the Attorney 
General does not direct the aviation training provider within 45 days 
that the alien presents a risk to aviation or national security. This 
interim final rule implements a process by which aviation training 
providers would provide the required notification for specific 
categories of aliens, the Attorney General would respond, and the 
aviation training providers would begin or resume instruction for 
candidates who the Attorney General has determined do not present a 
risk to aviation and national security as a result of the risk 
assessment conducted pursuant to section 113 of the Aviation and 
Transportation Security Act.

DATES: Effective date: This interim rule is effective June 14, 2002.
    Comment date: Written comments on the interim final rule must be 
submitted on or before July 15, 2002. Written comments only on the 
proposed information collection must be submitted on or before August 
13, 2002.

ADDRESSES: Please submit written comments to Aviation Training 
Security, U.S. Department of Justice, 950 Pennsylvania Avenue, NW, 
Washington, DC 20530.

FOR FURTHER INFORMATION CONTACT: Steven C. McCraw, Director, Foreign 
Terrorist Tracking Task Force, U.S. Department of Justice, Telephone 
(703) 414-9535.

SUPPLEMENTARY INFORMATION: On November 19, 2001, Congress enacted the 
Aviation and Transportation Security Act (``ATSA''), Pub. L. No. 107-
71. Upon enactment, section 113 of ATSA, 49 U.S.C. 44939, imposed 
notification and reporting requirements on certain persons who provide 
aviation training to aliens and other specified individuals. By its 
terms, section 113 of ATSA applies to anyone ``subject to regulation 
under this part.'' The reference to ``this part'' refers to Title 49, 
Subtitle VII, Part A, of the U.S. Code, entitled ``Air Commerce and 
Safety.'' Any entity regulated by any portion of Part A, comprising 
section 40101 through section 46507 of Title 49, must comply with the 
requirements of section 113 of ATSA. Persons subject to regulation 
under these provisions include individual training providers, training 
centers, certificated carriers, and flight schools (hereinafter 
collectively referred to as ``Providers''). Thus, virtually all private 
flight instructors located in the United States are covered by section 
113 of ATSA and therefore are subject to this rule. In addition, 
section 113 of ATSA does not exclude private providers of flight 
instruction located in countries outside the United States if these 
providers are authorized by the FAA to award United States licenses, 
certificates, or ratings. Providers outside the United States are not 
covered with regard to a particular instance of training, however, if 
that training will not lead to an FAA license, certificate or rating, 
regardless of whether the provider also has authority to issue such 
licenses, certificates or ratings. When the Department of Defense or 
the U.S. Coast Guard, or an entity providing training pursuant to a 
contract with the Department of Defense or the U.S. Coast Guard, 
provides training for a military purpose, such training is not subject 
to FAA regulation and therefore these entities, when providing such 
training, are not ``person[s] subject to regulation under this part'' 
within the meaning of section 113. See, e.g., 49 U.S.C. 44701(a) 
(Administrator's jurisdiction extends to promoting ``safe flight of 
civil aircraft in air commerce''); 14 CFR part 61 (provisions 
concerning certification of pilots, flight instructors, and ground 
instructors do not apply where training is not for purpose of FAA 
certification).
    Failure to comply with this rule may result in penalties being 
imposed in conformance with section 140(d) of ATSA. Pursuant to 49 
U.S.C. 46301, persons violating this section are subject to civil 
penalties.
    Pursuant to section 113 of ATSA, if an alien (defined in 8 U.S.C. 
1101(a)(3) as ``any person not a citizen or national of the United 
States'') or other person specified by the Under Secretary of 
Transportation for Security (collectively ``candidates'') seeks 
instruction from a Provider in the operation of an aircraft with a 
maximum certificated takeoff weight of 12,500 pounds or more, the 
Provider must notify the Attorney General and must submit identifying 
information for the candidate in such form as the Attorney General may 
require in order to initiate a security risk assessment by the 
Department of Justice (the ``Department'').
    Once the Attorney General has been notified and all the required 
identifying information has been submitted, the Attorney General then 
has 45 days to inform the Provider that the candidate should not be 
given the requested training because he or she presents a risk to 
aviation or national security. If the Attorney General does not 
indicate that the candidate presents a risk to aviation or national 
security by the end of this 45-day review period, then the Provider may 
proceed with training. The Attorney General, however, may interrupt the 
training if he later determines that the candidate presents a risk to 
aviation or national security. The Attorney General has delegated his 
authority under section 113 of ATSA to conduct security risk 
assessments of individuals seeking flight training and to determine 
whether such individuals present a risk to aviation or national 
security to the Director of the Foreign Terrorist Tracking Task Force 
(``FTTTF'').
    The Department recognized that section 113 of ATSA became 
immediately effective, and that Providers had been forced to suspend 
the training of aliens covered by ATSA pending the implementation of 
the process for notification to the Attorney General and the 
determination by the Attorney General whether the individual seeking 
training presents a risk to aviation or national security. The 
Department issued a notice on January 16, 2002 (``First Advance Consent 
Notice'') that stated that the Department was granting a provisional 
advance consent for the training of three categories of aliens, based 
on an initial determination they did not appear to present a risk to 
aviation or national security. 67 FR 2238. The First Advance Consent 
Notice was subsequently superseded, and the categories of advance 
consent modified in a notice published on February 8, 2002 (``Second 
Advance Consent Notice'' or ``Second Notice''). 67 FR 6051 (Feb. 8, 
2002). The Second Notice is rescinded as of June 14, 2002.
    This interim final rule with request for comments (``interim 
rule'') rescinds the Second Advance Consent Notice and imposes 
notification requirements for aliens within one of the three

[[Page 41141]]

categories eligible for expedited processing pursuant to this interim 
rule. Providers who currently are training any aliens in one of the 
four categories described in the Second Notice must suspend training 
until the Attorney General authorizes it to continue. This interim rule 
implements an expedited processing procedure for aliens in two of the 
four categories listed in the Second Notice and adds one additional 
category. Aliens in those three categories cannot be trained until the 
Provider notifies the Department in accordance with this rule and 
either the Attorney General authorizes training to proceed or 45 days 
from the date of notification elapses.
    Although this regulation is being issued as an interim rule, the 
Department is committed to issuing a final rule that addresses comments 
from the public and the aviation industry. The Department plans to 
issue a final rule addressing these comments as soon as possible after 
the comment period closes.

Expedited Processing for Aviation Training of Certain Aliens

    The Department believes that the primary intent of Congress was to 
protect aviation and national security by preventing aliens who present 
a risk to aviation or national security from being taught how to pilot 
aircraft with a maximum certificated takeoff weight of 12,500 pounds or 
more. The Department has determined that providing aviation training 
for certain categories of aliens presents little risk to aviation or 
national security because these aliens already have been trained as 
pilots. In this interim rule, the Department establishes an expedited 
processing procedure for those categories of aliens. These three 
categories of aliens are:
    (1) Foreign nationals who are current and qualified as pilot in 
command, second in command, or flight engineer with respective 
certificates with ratings recognized by the United States for aircraft 
with a maximum certificated takeoff weight of 12,500 pounds or more, or 
who are currently employed by U.S. air carriers as pilots on aircraft 
with a maximum certificated takeoff weight of 12,500 pounds or more;
    (2) Commercial, governmental, corporate, or military pilots of 
aircraft with a maximum certificated takeoff weight of 12,500 pounds or 
more who must receive familiarization training on a particular aircraft 
in order to transport it to the purchaser or recipient, provided that 
the training provided is limited to familiarization (familiarization 
training is limited to that required to become proficient in 
configurations and variations of an aircraft and does not include 
initial qualification or type rating for an aircraft); or
    (3) Military or law enforcement personnel who must receive training 
on a particular aircraft given by the United States to a foreign 
government pursuant to a draw-down authorized by the President under 
section 506(a)(2) of the Foreign Assistance Act of 1961, as amended (22 
U.S.C. 2318(a)(2)), provided that the training provided be limited to 
familiarization.
    These three categories differ slightly from the categories 
described in the Second Notice. At the suggestion of the FAA, this 
interim rule expands category (1) in the Second Notice to include 
foreign nationals currently employed by U.S. air carriers as pilots on 
aircraft with a maximum certificated takeoff weight of 12,500 pounds or 
more. Such individuals may have temporarily lost their current status 
or qualification either through personal or medical reasons. 
Nevertheless, as they are already fully trained pilots, requiring them 
to undergo a full investigation before regaining current status would 
create a hardship to the industry without bringing any significant 
benefit to national security.
    Category (2) of the Second Notice covered training being conducted 
directly by the United States Department of Defense or the U.S. Coast 
Guard. When the Department of Defense or the U.S. Coast Guard, or an 
entity providing training pursuant to a contract with the Department of 
Defense or the U.S. Coast Guard, provides training for a military 
purpose, such training is not subject to FAA regulation and therefore 
these entities, when providing such training, are not ``person[s] 
subject to regulation under this part'' within the meaning of section 
113. See, e.g., 49 U.S.C. 44701(a) (Administrator's jurisdiction 
extends to promoting ``safe flight of civil aircraft in air 
commerce''); 14 CFR part 61 (provisions concerning certification of 
pilots, flight instructors, and ground instructors do not apply where 
training is not for purpose of FAA certification). Accordingly, in the 
instant rule, the former Category (2) is not included.
    One category in the Second Notice covering certain students 
scheduled for training pursuant to an export authorization issued by 
the Department of State will not be included in the interim rule.
    Finally, Category (3) will allow expedited processing for law 
enforcement or military pilots of foreign countries who would receive 
familiarization training on aircraft given to those countries by the 
United States pursuant to draw-downs authorized by the President in 
support of the United States' anti-narcotics efforts. Such pilots are 
subject to careful evaluation by the State Department and, as they are 
fully qualified pilots seeking only familiarization training rather 
than basic flight instruction, no significant security benefits would 
be realized by requiring them to undergo a full investigation.
    Providers wishing to furnish aviation training to candidates in any 
of these categories will need to provide the Department with certain 
minimal identification, including the candidate's name, date of birth, 
passport issuing authority, country of citizenship, dates of training, 
unique student identification number, and the expedited processing 
category under which the candidate qualifies. The unique student 
identification number must be created by the Provider as a means of 
identifying records concerning the candidate. The unique student 
identification number must correspond to records kept by the Provider 
containing basic data concerning the candidate, including date of 
birth, place of birth, passport issuing authority and passport number, 
and copies of any other documentation that the FAA may require. As soon 
as the Provider furnishes the information to the Department in 
accordance with section 105.12 of this interim rule, and receives a 
response from the Department indicating that the individual does not 
present a risk to aviation or national security as a result of the risk 
assessment conducted pursuant to section 113 of ATSA, the Provider 
immediately may begin training. Receipt of this response by the 
Department to the notification will be deemed approval by the 
Department to commence training.
    The Provider's notification must be sent electronically to the 
Department in accordance with this regulation. Certificated training 
Providers must receive initial access to the system through the FAA. 
Providers will be required to make appointments to register through 
their local Flight Standards District Offices. Upon registration, 
Providers will be e-mailed a password for accessing the system and 
verifying applicant submissions. Any electronic notifications submitted 
to the Department must be submitted from a registered e-mail address in 
a format provided by the Department or the FAA. Any submissions sent 
from an unregistered e-mail address or using an incorrect format will 
not constitute notification of the Department for purposes of this 
rule.

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    The Department intends for its review to be accomplished 
expeditiously and requests comments on what turnaround time is needed 
to minimize any burdens that may be experienced by the aviation 
industry. Providers should keep in mind that the required notifications 
may be provided in advance of the anticipated training.
    Limiting submissions to electronic submissions placed by Providers 
will help to eliminate data-input errors, speed the processing of 
submissions, and aid the Department's ability to audit the process. In 
addition, the Department will be able to implement controls to help 
ensure the integrity of the submissions. A paper-based system likely 
would result in more errors and increased processing times, thus 
further burdening the flight instruction industry.
    In order to ensure that the electronic submissions are made by 
certificated training providers, Providers must receive initial access 
to the system through the FAA. Providers will be required to make 
appointments to register through their local Flight Standards District 
Offices. Upon registration, Providers will be e-mailed a password for 
accessing the system. The Department believes that most, if not all, 
Providers furnishing instruction on aircraft with a maximum 
certificated takeoff weight of 12,500 pounds or more already possess 
Internet access. Those Providers not possessing an e-mail address will 
need to obtain one if they wish to utilize this process. The Department 
also notes that free Internet access is available at many public 
facilities, such as public libraries, and that free e-mail services are 
available from some Internet Service Providers. The Department seeks 
comments from Providers and candidates on the impact of the requirement 
to provide notifications to the Department electronically.

Citizens and Nationals of the United States

    Citizens and nationals of the United States are not subject to 
section 113 of ATSA unless they are covered by a category designated by 
the Under Secretary of Transportation for Security. Accordingly, 
Providers may proceed with training for such individuals once they 
establish that they are citizens or nationals of the United States.
    The Attorney General is requiring that all prospective trainees who 
claim to be citizens or nationals of the United States must present 
documents to the Provider (such as a passport or birth certificate) 
establishing that the trainee is a citizen or national of the United 
States. Proof of United States citizenship or nationality is mandatory 
for United States citizens or nationals seeking training in the 
operation of an aircraft with a maximum certificated takeoff weight of 
12,500 pounds or more, because, with the exception of individuals 
designated by the Under Secretary of Transportation for Security, the 
Department will not conduct checks on citizens or nationals of the 
United States. This requirement is necessary to prevent aliens from 
falsely claiming to be United States citizens in order to evade the 
Department's security risk assessment. The Department also notes that 
aliens who falsely claim to be United States citizens in order to 
obtain flight training subject to section 113 of ATSA may be convicted 
of a felony under 18 U.S.C. 911 and will be permanently inadmissible to 
the United States under section 212(a)(6)(C)(ii) of the Immigration and 
Nationality Act, 8 U.S.C. 1182(a)(6)(C)(ii).

Risk Assessments for Aliens Not Granted Expedited Processing and Other 
Persons Specified by the Under Secretary of Transportation for Security

    The Department is issuing a separate proposed rule to address 
training for aliens who do not fall within a category of expedited 
processing in this interim rule. The proposed rule also addresses the 
notification process for individuals who may be specified by the Under 
Secretary of Transportation for Security. In accordance with ATSA, the 
Under Secretary of Transportation for Security may specify other 
individuals for whom the Department should conduct security risk 
assessments. At this time, however, no other individuals have been 
specified.

Attorney General Review

    After the Provider submits all the information that is required 
under this rule, the Attorney General will have 45 days to conduct a 
security risk assessment. The Department recognizes the economic burden 
imposed on Providers by the 45-day waiting period for those candidates 
who are subject to this notification requirement. The Department 
believes that it is unnecessary to make a candidate wait for the full 
45-day period in order to begin training if the Department has 
completed its risk assessment. Accordingly, in most cases, the 
Department expects that the Provider will be authorized to commence 
training (or instructed to deny it) sooner than the 45 days allowed by 
the statute.
    Providers training candidates qualifying for expedited processing 
who have notified the Department in accordance with section 105.12 may 
commence training immediately after they receive a response from the 
Department to their notification, indicating that the individual does 
not present a risk to aviation or national security as a result of the 
risk assessment conducted pursuant to section 113 of ATSA. In the event 
that the Attorney General does not instruct the Provider to deny 
training within 45 days of the submission of all the information 
required under this rule, the Provider may commence the requested 
training.
    The information provided to the Department will be used to confirm 
the identity of the individuals being trained and to help assess the 
risk presented by the candidate. In the event the Department 
subsequently determines that a candidate being trained does, in fact, 
present a risk to aviation or national security and that training 
should be denied, the Department will notify the Provider to terminate 
training immediately. Appropriate measures will be taken with respect 
to any candidate who is determined to present a risk to aviation or 
national security or with respect to any candidate or Provider who 
knowingly or negligently provides false information to the Department.

Regulatory Procedures

Good Cause

    This interim rule is effective immediately upon the date of 
publication. For the following reasons the Department finds that good 
cause exists for adopting this rule without the prior notice ordinarily 
required by 5 U.S.C. 553(b). Delay in the implementation of the rule 
will cause serious disruption in the aviation industry and the economy 
in general, will have a negative impact on public safety and national 
security, and will have a seriously adverse impact on the military and 
foreign affairs of United States.
    As a consequence of the notification requirement in section 113 of 
ATSA, Providers were prohibited from furnishing aviation training to 
aliens pending the implementation of a process for submitting training 
notifications to the Department. As a temporary measure to relieve the 
economic pressure on the aviation industry pending the promulgation of 
this rule, and based on a determination that the training of certain 
categories of aliens who already had flight skills did not pose any 
additional risk to aviation or national security within the meaning of 
the statute, the Department published two Federal Register Notices 
defining

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certain categories of ``advance consent.'' Providers subsequently 
provided training to pilots in those categories without first notifying 
the Department. This advance consent process, however, is terminated 
with the publication of this rule, based on an assessment of the 
requirements of the ATSA.
    This rulemaking is being issued on an interim basis to prevent the 
burdens that would be imposed on the public and the aviation industry 
if the revocation were effected without immediate provision of a means 
for Providers to furnish the required training notifications to the 
Attorney General for those aliens who are within the categories 
described in the expedited processing provisions of the interim final 
rule. For the following reasons, advance notice and comment would be 
contrary to the public interest.
    While the primary intent of Congress behind section 113 of ATSA was 
to protect aviation and national security, the public also has a strong 
interest in seeing that those aliens who do not present such risks are 
allowed to train. Because advance consent is being revoked, Providers 
who are prohibited from training aliens, airlines who regularly employ 
these pilots, and manufacturers who sell to these airlines would lose 
business every day that these regulations are not in effect. In 
addition, the inability to provide training would have a ripple effect 
on the United States economy. On the basis of available information, 
the Department believes that the aviation industry and the public would 
be affected severely if the Department were to eliminate advance 
consent without providing an immediate means of furnishing the required 
notifications to the Department.
    First, flight schools will be harmed economically over the course 
of the 60 days that might be expected to elapse were this rule 
published as a proposed, rather than an interim, rule. Almost all 
aliens coming to this country who seek training in the operation of 
aircraft with a maximum certificated takeoff weight of 12,500 pounds or 
more will use aircrew-training simulators, and a significant proportion 
of simulator time is used by aliens eligible for expedited processing 
pursuant to this interim final rule. A new simulator costs between $5.5 
million and $19 million each, and therefore must generate substantial 
revenue to return a profit for a flight school. There are approximately 
700 simulators in the United States. Financial difficulties accruing to 
Providers from lost opportunities due to restrictions on training 
aliens are confirmed by Pan Am International Flight Academy in Miami, 
Florida. In addition to the revenue they generate, simulators support 
the employment of numerous flight school employees. Simulators also 
support substantial demand for overnight accommodations, meals, and 
transportation, and related employment. The direct and indirect losses 
to the national economy caused by a 60-day delay in the effective date 
of this rule would be substantial.
    Second, the training delays have direct adverse effects on air 
carriers and their ability to conduct their business. As discussed 
above, much of the training conducted by Providers to aliens is in the 
form of recurrent training offered to experienced pilots who are 
currently flying into and out of the United States. The Department has 
estimated that 50,500 aliens will be subject to the expedited 
processing provisions implemented in this rule. Although the 
requirements for recertification vary, the Department estimated that 
these 50,500 aliens will need to take recurrent training, on average, 
approximately three times each year. This suggests that an average of 
approximately 12,625 pilots may risk losing their current status for 
lack of the required recurrent training every month that the 
publication of an effective rule is delayed. The potential loss of the 
services of this number of pilots and flight crew would have a 
substantial negative effect on the aviation industry. Information 
provided by the industry reflects that some 5-10% of pilots employed by 
United States carriers are aliens. If these individuals were to lose 
their current flight status and be unable to fly, a loss in revenue 
could be expected.
    Third, the domestic airplane manufacturing industry also is 
affected by the notification requirements of section 113 of ATSA. 
According to the FAA, the Commerce Department, and the industry, large 
purchase contracts of domestic airplane manufacturers involve not only 
the sale of aircraft, but also the training of pilots in the use of 
such aircraft. Indeed, according to one industry source, a contract for 
the sale of a large aircraft includes, in every instance, a certain 
amount of ``entitlement training.'' If overseas buyers are deterred 
from purchasing planes manufactured in the United States because they 
cannot have their pilots trained in the operation of such aircraft, 
expected losses would be severe.
    Fourth, a delay in the effective date of a rule providing expedited 
processing for the three categories of aliens also would be contrary to 
the public's interest in aviation safety. Aviation training may be 
furnished outside the United States by flight schools not subject to 
section 113. Therefore, the lack of an effective rule would serve to 
encourage aliens who otherwise would be trained in the United States to 
seek training elsewhere. That decision not only risks the economic well 
being of domestic Providers, but increases the risk that these aliens 
would be trained by lower quality foreign flight schools that do not 
comply with FAA regulations. It clearly is in the interest of public 
safety for pilots to be trained by Providers regulated by the FAA.
    Moreover, aliens in the three categories that would end up being 
trained by non-FAA regulated flight schools would avoid the risk 
assessments to which they would be subject if they sought training by 
Providers pursuant to these regulations. The loss of an opportunity to 
perform a risk assessment could mean that the Department would have no 
record of an attempt to seek training by an alien with ties to 
terrorism.
    Additionally, a delay in issuing a rule allowing current pilots to 
take training would discourage these pilots from seeking to improve and 
refresh their piloting skills. In addition, if pilots are unable to 
complete their recurrent training, the United States air carriers 
employing those pilots may be required under the laws and regulations 
governing the aviation industry to ground those current pilots, 
depending upon their individual circumstances, from flying into United 
States airspace until their recurrent training can be completed. See 14 
CFR part 121 and part 135. In turn, that action would cause the air 
carriers to begin to experience a shortage of available pilots.
    Fifth, delay in the implementation of a notification process for 
aliens in the three categories also would injure the United States' 
military interests and would have a significant harmful effect on its 
foreign relations. The rulemaking requirements of 5 U.S.C. 553 do not 
apply to rules that involve ``a military or * * * foreign affairs 
function of the United States.'' 5 U.S.C. Sec. 553(a). A number of the 
aliens subject to section 113 are being trained pursuant to agreements 
with the governments of other countries for both economic and military 
reasons. Indeed, this interim rule provides for expedited processing 
for a category of foreign military pilots. The delay in implementing 
this rule with respect to such pilots will have an increasingly serious 
adverse impact on the military interests and foreign affairs of the 
United States.
    The Department has consulted with the FAA and considered comments 
from representatives of the aviation industry

[[Page 41144]]

during its development of a notification process. While the Department 
is soliciting further comments from the public regarding this interim 
rule, the Department believes, for all the foregoing reasons, that it 
would be contrary to the public's interest to issue this regulation as 
a proposed rule at this time.
    Finally, the Department also has good cause to issue this interim 
rule with an immediate effective date, in accordance with 5 U.S.C. 
553(d). As set forth above, the immediate publication of these 
regulations is in the public interest because it will prevent the 
imposition of burdens on the aviation industry, the economy, and the 
public in general that would occur were the advance consent revoked 
without the expedited processing made available through this interim 
final rule. The immediate publication of the rule also will limit a 
serious negative impact on military interests and foreign affairs of 
the United States. Because additional delay is contrary to the public 
interest, there is good cause under 5 U.S.C. 553(d) to make this rule 
effective as of June 14, 2002.

Regulatory Flexibility Act

    In accordance with the Regulatory Flexibility Act (5 U.S.C. 
605(b)), the Attorney General, by approving this regulation, certifies 
that this rule will have a significant economic impact on a substantial 
number of small entities. Although the overall economic impact of this 
regulation will be beneficial toward small entities, the Department has 
prepared the following initial Regulatory Flexibility Act analysis in 
accordance with 5 U.S.C. 603.
    The small entities affected by this rule include virtually all 
Providers furnishing flight instruction to aliens in the operation of 
aircraft with a maximum certificated takeoff weight of 12,500 pounds or 
more. Pursuant to section 113 of ATSA, Providers are prohibited from 
furnishing any instruction to such aliens until the Attorney General is 
able to provide a means for determining whether the alien presents a 
risk to aviation or national security. Because this prohibition was so 
recently enacted, the Department is not aware of any studies or data 
detailing its effect on small entities.
    The purpose of this rule is to provide a mechanism by which 
Providers may instruct aliens deemed by the Attorney General not to 
present a risk to aviation or national security as a result of the risk 
assessment conducted pursuant to section 113 of ATSA. This regulation 
will help the affected Providers to furnish instruction to most of the 
aliens in categories described in the Second Notice who had been 
receiving flight instruction. Thus, this regulation will have a 
beneficial effect on small businesses. The only costs incurred by 
Providers complying with this regulation will be the minimal costs they 
incur when providing the required notification to the Attorney General.

Unfunded Mandates Reform Act of 1995

    This rule will not result in the expenditure by state, local and 
tribal governments, in the aggregate, or by the private sector, of $100 
million or more in one year, and it will not significantly or uniquely 
affect small governments. Therefore, no actions were deemed necessary 
under the provisions of the Unfunded Mandates Reform Act of 1995.

Small Business Regulatory Enforcement Fairness Act of 1996

    This rule is not a major rule as defined by section 251 of the 
Small Business Regulatory Enforcement Act of 1996. 5 U.S.C. 804. This 
rule will not result in an annual effect on the economy of $100 million 
or more; a major increase in costs or prices; or significant adverse 
effects on competition, employment, investment, productivity, 
innovation; or on the ability of United States-based companies to 
compete with foreign-based companies in domestic and export markets.

Executive Order 12866

    This rule is considered by the Department of Justice to be a 
significant regulatory action under Executive Order 12866, section 
3(f), Regulatory Planning and Review. Accordingly, this regulation has 
been submitted to the Office of Management and Budget (``OMB'') for 
review.

Paperwork Reduction Act of 1995

    The Department of Justice has submitted the following information 
collection requests to the Office of Management and Budget for review 
and approval in accordance with the Paperwork Reduction Act of 1995. 
This information collection has been approved and assigned OMB Control 
Number 1105-0074. As part of this information collection, the Office of 
Management and Budget has approved an emergency revision to this 
information collection. The proposed information collections are 
published to obtain comments from the public and affected agencies. 
Comments are encouraged and will be accepted for sixty days. This 
process is conducted in accordance with 5 CFR 1320.10.
    If you have comments on the estimated public burden or associated 
response time, suggestions, or need a copy of one of the proposed 
information collection instruments with instructions or additional 
information, please contact Aviation Training Security; U.S. Department 
of Justice; 950 Pennsylvania Avenue, NW., Washington, DC 20530. Written 
comments and suggestions from the public and affected agencies 
concerning the proposed collections of information are encouraged. Your 
comments should address one or more of the following four points:
    (1) Whether the proposed collection of information is necessary for 
the proper performance of the functions of the agency, including 
whether the information will have practical utility;
    (2) Whether the agency's estimate of the burden of the proposed 
collection of information, including the validity of the methodology 
and assumptions used, is accurate;
    (3) How to enhance the quality, utility, and clarity of the 
information to be collected, and
    (4) How to minimize the burden of the collection of information on 
those who are to respond, including through the use of appropriate 
automated, electronic, mechanical, or other technological collection 
techniques or other forms of information technology, e.g., permitting 
electronic submission of responses.
    The following is an overview of this information collection:
    (1) Type of information collection: Revision of a currently 
approved collection.
    (2) The title of the form/collection: Flight Training Candidate 
Checks Program.
    (3) The agency form number, if any, and the applicable component of 
the Department sponsoring the collection: FTTTF-2; Foreign Terrorist 
Tracking Task Force, Aviation Training Security.
    (4) Affected public who will be asked or required to respond, as 
well as a brief abstract: Primary: Federal Government--Federal Aviation 
Administration Flight Standards District Offices; Business or other 
for-profit--U.S.-based flight training providers offering instruction 
on the operation of aircraft having a maximum certificated takeoff 
weight of 12,500 pounds or more; Individuals--aliens seeking flight 
training in the United States on the operation of aircraft having a 
maximum certificated takeoff weight of 12,500 pounds or more. This 
information is being collected pursuant to section 113 of the Aviation 
and Transportation

[[Page 41145]]

Security Act so that the Attorney General or his designee can determine 
the risk presented to aviation or national security by a foreign 
national receiving flight training in the United States.
    (5) An estimate of the total number of respondents and the amount 
of time estimated for an average respondent to respond/reply: There are 
86 Flight Standards District Offices in the United States. 
Representatives of each of these offices will log approximately one 
hour per year per office on the system covered by this notice. Although 
83,000 flight training providers are authorized to furnish aviation 
training, the FAA estimates that only 10,000 of those offer training on 
aircraft subject to regulation by section 113 of the Aviation and 
Transportation Security Act. Projections for the annual number of alien 
applicants to the system vary from 3,000 to 50,000 (excluding those 
eligible for expedited review), but for purposes of estimation, the 
Department contends that some 50,500 candidates are expected to qualify 
for expedited review; Providers will submit form FTTTF-2 an average of 
three times per year for each of these candidates. It is estimated that 
only two minutes will be required from Providers for each submission of 
FTTTF-2.
    (6) An estimate of total public burden (in hours) associated with 
the collection: The total public burden to Flight Standards District 
Offices, flight training providers, and alien applicants for flight 
training subject to this regulation will be approximately 5,050 hours 
per year.
    If additional information is required contact: Brenda E. Dyer, 
Department Deputy Clearance Officer, United States Department of 
Justice, Information Management and Security Staff, Justice Management 
Division, Suite 1600, Patrick Henry Building, 601 D Street NW., 
Washington, DC 20530.

Executive Order 13132

    This rule will not have a substantial direct effect on the States, 
on the relationship between the National Government and the States, or 
on the distribution of power and responsibilities among the various 
levels of government. Therefore, in accordance with section 6 of 
Executive Order 13132, it is determined that this rule does not have 
sufficient Federalism implications to warrant the preparation of a 
Federalism summary impact statement.

Executive Order 12988

    This final rule meets the applicable standards set forth in 
sections 3(a) and 3(b)(2) of Executive Order 12988.

List of Subjects in 28 CFR Part 105

    Administrative practice and procedure, Airmen, Flight instruction, 
Risk Assessments, Reporting and recordkeeping requirements, Security 
measures.


    Accordingly, chapter I of title 28 of the Code of Federal 
Regulations is amended by adding a new part 105 to read as follows:

PART 105--SECURITY RISK ASSESSMENTS

Subpart A--[Reserved]

Subpart B--Aviation Training for Aliens and Other Designated 
Individuals
Sec.
105.10   Definitions, purpose, and scope.
105.11   Individuals not requiring a security risk assessment.
105.12   Notification for candidates eligible for expedited 
processing.

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

Subpart B--Aviation Training for Aliens and Other Designated 
Individuals


Sec. 105.10  Definitions, purpose, and scope.

    (a) Definitions.
    (1) ATSA means the Aviation and Transportation Security Act, Pub. 
L. 107-71.
    (2) Provider means a person or entity subject to regulation under 
Title 49 Subtitle VII, Part A, United States Code. This definition 
includes individual training providers, training centers, certificated 
carriers, and flight schools. Virtually all private providers of 
instruction in the operation of aircraft with a maximum certificated 
takeoff weight of 12,500 pounds or more are covered by section 113 of 
ATSA and are therefore subject to this rule. Providers located in 
countries other than the United States are included in this definition 
to the extent that they are providing training leading to a United 
States license, certification, or rating. Providers located in 
countries other than the United States who are providing training that 
does not lead to a United States license, certification, or rating are 
not included in this definition. When the Department of Defense or the 
U.S. Coast Guard, or an entity providing training pursuant to a 
contract with the Department of Defense or the U.S. Coast Guard, 
provides training for a military purpose, such training is not subject 
to FAA regulation and therefore these entities, when providing such 
training, are not ``person[s] subject to regulation under this part'' 
within the meaning of section 113.
    (3) Candidate means any person who is an alien as defined in 
section 101(a)(3) of the Immigration and Nationality Act, 8 U.S.C. 
1101(a)(3) who seeks training in the operation of an aircraft with a 
maximum certificated takeoff weight of 12,500 pounds or more from a 
Provider.
    (4) Certificates with ratings recognized by the United States means 
a valid certificate with ratings issued by the United States, or a 
valid foreign license issued by a member of the Assembly of the 
International Civil Aviation Organization, as established by Article 43 
of the Convention on International Civil Aviation.
    (b) Purpose and scope.
    (1) Section 113 of ATSA prohibits Providers from furnishing 
aviation instruction to candidates on aircraft with a maximum 
certificated takeoff weight of 12,500 pounds or more without the prior 
notification of the Attorney General. The purpose of this notification 
is to allow the Attorney General to determine whether such an 
individual presents a risk to aviation or national security before 
flight instruction may begin. The Department believes that it is 
unnecessary to make a candidate wait for 45 days in order to begin 
training if the Department has completed its risk assessment. 
Therefore, after providing the required notification to the Attorney 
General as described in this subpart, the Provider may begin 
instruction of a candidate if the Attorney General has informed the 
Provider that the candidate does not present a risk to aviation or 
national security as a result of the risk assessment conducted pursuant 
to section 113 of ATSA. If the Attorney General does not provide either 
an authorization to proceed with training or a notice to deny training 
within 45 days after receiving the required notification, the Provider 
may commence training at that time. All candidates must show a valid 
passport establishing their identity to a Provider before commencing 
training.
    (2) In the event the Attorney General subsequently determines that 
a candidate being trained does, in fact, present a risk to aviation or 
national security and that training should be denied, the Attorney 
General will instruct the Provider to terminate training.
    (3) Providing false information or otherwise failing to comply with 
section 113 of ATSA may present a threat to aviation or national 
security and is subject to both civil and criminal sanctions. The 
United States will take

[[Page 41146]]

all necessary legal action to deter and punish violations of this 
section.


Sec. 105.11  Individuals not requiring a security risk assessment.

    (a) Citizens and nationals of the United States. A citizen or 
national of the United States is not subject to section 113 of ATSA. A 
Provider must determine whether a prospective trainee is a citizen or 
national of the United States prior to providing instruction on 
aircraft with a maximum certificated takeoff weight of 12,500 pounds or 
more. To establish United States citizenship or nationality, the 
prospective trainee must show the Provider from whom he or she seeks 
training any of the following documents as proof of United States 
citizenship or nationality:
    (1) A valid, unexpired United States passport;
    (2) An original or government-issued certified birth certificate 
with raised seal documenting birth in the United States or one of its 
territories, together with a government-issued picture identification 
of the individual named in the birth certificate;
    (3) An original United States naturalization certificate with 
raised seal, Form N-550 or Form N-570, together with a government-
issued picture identification of the individual named in the 
certificate;
    (4) An original certification of birth abroad with raised seal, 
Form FS-545 or Form DS-1350, together with a government-issued picture 
identification of the individual named in the certificate;
    (5) An original certificate of United States citizenship with 
raised seal, Form N-560 or Form N-561, together with a government-
issued picture identification of the individual named in the 
certificate; or
    (6) In the case of training provided to a federal employee 
(including military personnel) pursuant to a contract between a federal 
agency and a Provider, the agency's written certification as to its 
employee's United States citizenship/nationality, together with the 
employee's government-issued credentials or other federally-issued 
picture identification.
    (b) [Reserved]


Sec. 105.12  Notification for candidates eligible for expedited 
processing.

    (a) Expedited processing. The Attorney General has determined that 
providing aviation training to certain categories of candidates is not 
likely to present a risk to aviation or national security because of 
the aviation training already possessed by these individuals or because 
of risk assessments conducted by other agencies. Therefore, the 
following categories of candidates are eligible for expedited 
processing:
    (1) Foreign nationals who are current and qualified as pilot in 
command, second in command, or flight engineer with respective 
certificates with ratings recognized by the United States for aircraft 
with a maximum certificated takeoff weight of 12,500 pounds or more, or 
who are currently employed and qualified by U.S. air carriers as pilots 
on aircraft with a maximum certificated takeoff weight of 12,500 pounds 
or more;
    (2) Commercial, governmental, corporate, or military pilots of 
aircraft with a maximum certificated takeoff weight of 12,500 pounds or 
more who must receive familiarization training on a particular aircraft 
in order to transport it to the purchaser or recipient, provided that 
the training provided is limited to familiarization (familiarization 
training is limited to that required to become proficient in 
configurations and variations of an aircraft and does not include 
initial qualification or type rating for an aircraft); or
    (3) Military or law enforcement personnel who must receive training 
on a particular aircraft given by the United States to a foreign 
government pursuant to a draw-down authorized by the President under 
section 506(a)(2) of the Foreign Assistance Act of 1961, as amended (22 
U.S.C. 2318(a)(2)), provided that the training provided be limited to 
familiarization.
    (b) Notification. Before a Provider may conduct training for a 
candidate eligible for expedited processing under paragraph (a) of this 
section, the Provider must submit the following information to the 
Department:
    (1) The full name of the candidate;
    (2) An unique student identification number created by the Provider 
as a means of identifying records concerning the candidate;
    (3) Date of birth;
    (4) Country of citizenship;
    (5) Passport issuing authority;
    (6) Dates of training; and
    (7) The category of expedited processing under paragraph (a) of 
this section for which the candidate qualifies.
    (c) Commencement of training. The notification must be provided 
electronically to the Department by the Provider in the specific format 
and by the specific means identified by the Department. Notification 
must be made by e-mail. Only e-mail sent from an e-mail address 
registered as a Provider will be accepted. Specific details about the 
mechanism for the notification will be made available by the Department 
or the FAA. After the complete notification is furnished to the 
Department, the Provider may commence training the candidate as soon as 
the Provider receives a response from the Department that the 
individual does not present a risk to aviation or national security as 
a result of the risk assessment conducted pursuant to section 113 of 
ATSA and the candidate presents a valid passport establishing his or 
her identity to the Provider. Receipt of this response by the 
Department will be deemed approval by the Department to commence 
training. If the Department later determines that the candidate 
presents a risk to aviation or national security, it will immediately 
notify the Provider to cease training. A Provider so notified shall 
immediately cease providing any training to the person, regardless of 
whether or in what manner such training had been authorized. The 
Provider who submitted the candidate's identifying information will be 
responsible for ensuring that the training is promptly halted, 
regardless of whether another Provider is currently training the 
candidate.
    (d) Records. When a Provider conducts training for a candidate 
eligible for expedited processing, the Provider must retain records to 
document how the Provider made the determination that the candidate was 
eligible. The Provider also must retain certain identifying records 
regarding the candidate, including date of birth, place of birth, 
passport issuing authority, and passport number. The Provider must be 
able to reference these records by the unique student identification 
number provided to the Department pursuant to this section. Providers 
also are encouraged to maintain photographs of all candidates trained 
by the Provider. Such records should be maintained for at least three 
years following the conclusion of training by the Provider. The 
Provider also should be able use the unique student identification 
number to cross-reference any other documentation that the FAA may 
require the Provider to retain regarding the candidate.

    Dated: June 11, 2002
John Ashcroft,
Attorney General.
[FR Doc. 02-15060 Filed 6-11-02; 5:07 pm]
BILLING CODE 4410-19-P