[Federal Register Volume 67, Number 115 (Friday, June 14, 2002)]
[Proposed Rules]
[Pages 41147-41152]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-15061]



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

[[Page 41147]]


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DEPARTMENT OF JUSTICE

28 CFR Part 105

[OAG 104; AG Order No. 2591-2002]
RIN 1105-AA80


Screening of Aliens and Other Designated Individuals Seeking 
Flight Training

AGENCY: Department of Justice.

ACTION: Proposed rule with request for comments.

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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 
proposed rule would implement a process by which aviation training 
providers would provide the required notification, the Attorney General 
would respond, and the aviation training providers would begin or 
resume instruction for candidates who do not present a to aviation and 
national security.

DATES: Written comments on the proposed regulation must be submitted on 
or before July 15, 2002. Written comments only on the proposed 
information collection must be submitted on or before August 13, 2002.

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

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

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

[[Page 41148]]

``Second Notice''). 67 FR 6051 (Feb. 8, 2002).
    The Department also published an interim final rule with a request 
for comments (``interim rule'') that rescinded the Second Advance 
Consent Notice. The interim rule, published concurrently with this 
rule, implemented an expedited processing procedure for aliens in two 
of the four categories listed in the Second Notice and added one 
additional category.
    This proposed rule addresses those candidates not covered by the 
concurrently published interim rule and provides the process by which 
Providers may notify the Attorney General with respect to candidates 
who are not within any of the expedited processing categories. 
Providers may not train candidates in the operation of aircraft with a 
maximum certificated takeoff weight of 12,500 pounds or more unless 
they have complied with this rule, or unless the candidate is included 
within a category of expedited processing and the Provider has been 
notified by the Department that the candidate has been found not to 
present a risk to aviation or national security as result of the risk 
assessment conducted pursuant to section 113 of ATSA. Because these 
candidates may present a greater risk to aviation or national security 
than candidates eligible for expedited processing, Providers planning 
to train these candidates will need to furnish more detailed 
information, including fingerprints, to the Department.

Availability of Flight Training Candidate Checks Program Notification 
System for Review

    The notification system for pilots not eligible for expedited 
processing will be one of the first electronic-based systems developed 
by the Department. The Department wants to make sure that the public 
and the aviation industry had an opportunity to comment on this 
interface. As a result, the Flight Training Candidate Checks Program 
proposed notification system has been made available for public review. 
The public is welcome to access the system, but should refrain from 
submitting any data. No candidate forms should be submitted through 
this notification system until a final rule implementing the system is 
in effect. The submission of identifying applicant information through 
this system will not constitute notification of the Attorney General as 
required by section 113 of ATSA. Any notifications submitted to the 
Department for pilots eligible for expedited processing should be 
provided in accordance with the interim rule published concurrently 
with this proposed rule.

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

    Providers wishing to train aliens who do not fall within a category 
of expedited processing, or any other individuals specified by the 
Under Secretary of Transportation for Security, will need to submit 
detailed identifying information to the Department before providing 
training. The information must be provided to the Department via 
electronic submission on the form titled Flight Training Candidate 
Checks Program, as described in section 105.13 of this rule. This form 
requests the submission of certain identifying data, including the 
covered candidate's name, address, and physical characteristics; 
various government-issued identification numbers; information regarding 
the source of the funds to pay for instruction; information about 
immediate family members; occupational and education information; and 
information regarding citizenship. The form is designed to be the first 
part of a two-part process; candidates also will be required to submit 
a set of fingerprints.
    Limiting submissions to electronic submissions will speed the 
processing of submissions, and aid the Department's ability to audit 
the process. In addition, the Department will be able to implement 
controls to help ensure the integrity of the submissions. A paper-based 
system likely would result in more errors and vastly increased 
processing times, thus further burdening both the flight instruction 
industry and candidates.
    Certificated training Providers must receive initial access to the 
system through the FAA. Providers will be required to make appointments 
to register through their local Flight Standards District Offices. Upon 
registration, Providers will be e-mailed a password for accessing the 
system and verifying applicant submissions. The Department believes 
that most, if not all, Providers furnishing instruction on aircraft 
with a maximum certificated takeoff weight of 12,500 pounds or more 
already possess Internet access. Those Providers not possessing an e-
mail address will need to obtain one if they wish to utilize this 
process. The Department also notes that free Internet access is 
available at many public facilities, such as public libraries, and that 
free e-mail services are available from some Internet Service 
Providers. The Department seeks comments from Providers and candidates 
on the impact of the requirement to provide notifications to the 
Department electronically. In order to reduce the potential burden on 
Providers, candidates may complete the on-line form themselves. After 
the candidate completes the form, the Provider must verify that the 
candidate is a bona fide applicant for instruction and complete the 
submission process.

Fingerprinting Requirements for Candidates

    Aliens who do not fall within a category of expedited processing, 
and other individuals specified by the Under Secretary of 
Transportation for Security, also must submit fingerprints to the 
Federal Bureau of Investigation (``FBI'') prior to the commencement of 
instruction as part of the identification process. These fingerprints 
must be taken by federal, state, or local law enforcement agencies, or 
any other official approved by the Director of the FTTTF. The 
fingerprints must be taken under the direct observation of the 
official. Procedures by which such fingerprints may be taken currently 
exist in the states for many other purposes. The Department, however, 
welcomes comments regarding whether or how candidates might be allowed 
to have their fingerprints taken outside the United States.
    The fingerprints must be recorded on fingerprint cards distributed 
by the Director of the FTTTF for that purpose, or processed by other 
means approved by the Director of the FTTTF. The fingerprint 
submissions must be forwarded to the FBI in a manner specified by the 
Director of the FTTTF. The Provider and the official taking the 
fingerprints will receive, through the FTTTF, explicit instructions for 
fingerprint submissions. Officials taking fingerprints should ensure 
that any fingerprints provided to the FBI are not placed within the 
control of the candidate or Provider at any time. Candidates must 
provide appropriate identification, including a passport if the 
candidate is an alien, at the time of fingerprinting.
    Candidates submitting fingerprints must pay for the costs 
associated with taking and processing the fingerprints in a form and 
manner approved by the FBI. This payment process may vary depending 
upon where the fingerprints are taken. In accordance with Pub. L. No. 
101-515, as amended (28 U.S.C. 534 note), the Director of the FBI may 
establish and collect fees to process fingerprint identification 
records and name checks for certain purposes, including non-criminal 
justice and licensing purposes. In addition to the

[[Page 41149]]

cost to the FBI for conducting its review, other fees may be imposed, 
including the cost of taking the fingerprints and the cost of 
processing the fingerprints and submitting them to the FBI for review. 
The federal component of this fee currently is $31. Depending on the 
entity taking the fingerprints, however, an additional fee also may be 
imposed for taking and submitting the fingerprints to the FBI. Because 
the total fee may vary by state, the candidate must check with the 
entity taking the fingerprints to determine the applicable total fee. 
This payment must be made at the designated rate for each set of 
fingerprints submitted. The procedure for taking and submitting 
fingerprints is described in section 105.13 of this rule. Fingerprints 
will be considered submitted for purposes of this rule once the 
Provider has provided on-line notification through the system to the 
Department that the candidate's fingerprints have been taken in 
accordance with section 105.13 of this rule.
    The Department recognizes that some Providers furnish training to 
candidates at facilities located outside the United States. In those 
instances, it may be impracticable for a candidate to be fingerprinted 
in accordance with section 105.13 of this rule. Therefore, on a case-
by-case basis, a Provider wishing to train a candidate outside the 
United States may request a waiver of the fingerprinting requirements 
from the FTTTF. The waiver request must detail why it is impracticable 
for the alien to be fingerprinted in accordance with section 105.13.

Attorney General Review

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

Regulatory Procedures

Regulatory Flexibility Act

    In accordance with the Regulatory Flexibility Act (5 U.S.C. 
605(b)), the Attorney General, by approving this regulation, certifies 
that this rule will have a significant economic impact on a substantial 
number of small entities. Although the overall economic impact of this 
regulation will be beneficial toward small entities, the Department has 
prepared the following initial Regulatory Flexibility Act analysis in 
accordance with 5 U.S.C. 603.
    The small entities affected by this rule include virtually all 
Providers furnishing flight instruction to aliens in the operation of 
aircraft with a maximum certificated takeoff weight of 12,500 pounds or 
more. Pursuant to section 113 of ATSA, Providers are prohibited from 
furnishing any instruction to such aliens until the Attorney General is 
able to provide a means for determining whether the alien presents a 
risk to aviation or national security. Because this prohibition was so 
recently enacted, the Department is not aware of any studies or data 
detailing its effect on small entities. Anecdotal evidence, however, 
suggests that while some entities may have experienced no decline in 
business, other entities estimate that they may have experienced as 
much as a 30% loss of income because they are not able to provide 
flight instruction to aliens.
    The purpose of this rule is to provide a mechanism by which 
Providers may instruct aliens deemed by the Attorney General not to 
present a risk to aviation or national security as a result of the risk 
assessment conducted pursuant to section 113 of ATSA. This regulation 
will help the affected Providers to furnish instruction to aliens who 
had been unable to receive flight instruction since section 113 of ATSA 
was enacted. Thus, this regulation will have a beneficial effect on 
small businesses. The only costs incurred by Providers complying with 
this regulation will be the minimal costs they incur when providing the 
required notification to the Attorney General.

Unfunded Mandates Reform Act of 1995

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

Small Business Regulatory Enforcement Fairness Act of 1996

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

Executive Order 12866

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

Paperwork Reduction Act of 1995

    The Department of Justice has submitted the following information 
collection requests to the Office of Management and Budget for review 
and approval in accordance with the Paperwork Reduction Act of 1995. 
This information collection has been approved and assigned OMB Control 
Number 1105-0074. The proposed information collections are published to 
obtain comments from the public and affected agencies. Comments are 
encouraged and will be accepted for sixty days. This process is 
conducted in accordance with 5 CFR 1320.10.
    If you have comments on the estimated public burden or associated 
response time, suggestions, or need a

[[Page 41150]]

copy of one of the proposed information collection instruments with 
instructions or additional information, please contact Aviation 
Training Security; U.S. Department of Justice; 950 Pennsylvania Avenue, 
NW; Washington, DC 20530. Written comments and suggestions from the 
public and affected agencies concerning the proposed collections of 
information are encouraged. Your comments should address one or more of 
the following four points:
    (1) Whether the proposed collection of information is necessary for 
the proper performance of the functions of the agency, including 
whether the information will have practical utility;
    (2) Whether the agency's estimate of the burden of the proposed 
collection of information, including the validity of the methodology 
and assumptions used, is accurate;
    (3) How to enhance the quality, utility, and clarity of the 
information to be collected, and
    (4) How to minimize the burden of the collection of information on 
those who are to respond, including through the use of appropriate 
automated, electronic, mechanical, or other technological collection 
techniques or other forms of information technology, e.g., permitting 
electronic submission of responses.
    The following is an overview of this information collection:
    (1) Type of information collection: Revision of a currently 
approved collection.
    (2) The title of the form/collection: Flight Training Candidate 
Checks Program.
    (3) The agency form number, if any, and the applicable component of 
the Department sponsoring the collection: FTTTF-1; Foreign Terrorist 
Tracking Task Force, Aviation Training Security.
    (4) Affected public who will be asked or required to respond, as 
well as a brief abstract: Primary: Federal Government--Federal Aviation 
Administration Flight Standards District Offices; Business or other 
for-profit--U.S.-based flight training providers offering instruction 
on the operation of aircraft having a maximum certificated takeoff 
weight of 12,500 pounds or more; Individuals--aliens seeking flight 
training in the United States on the operation of aircraft having a 
maximum certificated takeoff weight of 12,500 pounds or more. This 
information is being collected pursuant to section 113 of the Aviation 
and Transportation Security Act so that the Attorney General or his 
designee can determine the risk presented to aviation or national 
security by a foreign national receiving flight training in the United 
States.
    (5) An estimate of the total number of respondents and the amount 
of time estimated for an average respondent to respond/reply: There are 
86 Flight Standards District Offices in the United States. 
Representatives of each of these offices will log approximately one 
hour per year per office on the system covered by this notice. Although 
83,000 flight training providers are authorized to furnish aviation 
training, the FAA estimates that only 10,000 of those offer training on 
aircraft subject to regulation by section 113 of the Aviation and 
Transportation Security Act. Projections for the annual number of alien 
applicants to the system vary from 3,000 to 50,000 (excluding those 
eligible for expedited review), but for purposes of estimation, the 
Department contends that an average of 26,000 candidates will apply 
annually using the primary form, FTTTF-1, and that on average these 
candidates will apply twice per year. Because entries subsequent to the 
first will take less time, the Department estimates that each alien 
applicant using FTTTF-1 will spend approximately 45 minutes on the 
system per year.
    (6) An estimate of total public burden (in hours) associated with 
the collection: The total public burden to Flight Standards District 
Offices, flight training providers, and alien applicants for flight 
training subject to this regulation will be approximately 19,500 hours 
per year.
    If additional information is required contact: Brenda E. Dyer, 
Department Deputy Clearance Officer, United States Department of 
Justice, Information Management and Security Staff, Justice Management 
Division, Suite 1600, Patrick Henry Building, 601 D Street NW, 
Washington, DC 20530.

Executive Order 13132

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

Executive Order 12988

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

List of Subjects in 28 CFR Part 105

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

PART 105--SECURITY RISK ASSESSMENTS

* * * * *

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

    1. The Authority citation continues to read as follows:

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

    2. Amend Sec. 105.10 by revising paragraph (a)(3) and paragraph 
(b)(1) to read as follows:


Sec. 105.10  Definitions, purpose, and scope.

    (a) * * *
    (3) Candidate means any person seeking training in the operation of 
an aircraft with a maximum certificated takeoff weight of 12,500 pounds 
or more from a Provider who is either:
    (i) An alien as defined in section 101(a)(3) of the Immigration and 
Nationality Act, 8 U.S.C. 1101(a)(3); or
    (ii) Is within a class of persons as specified by the Under 
Secretary of Transportation for Security, pursuant to section 113(a) of 
ATSA, 49 U.S.C. 44939(a).
* * * * *
    (b) * * *
    (1) Section 113 of ATSA prohibits Providers from furnishing 
aviation instruction to candidates on aircraft with a maximum 
certificated takeoff weight of 12,500 pounds or more without the prior 
notification of the Attorney General. The purpose of this notification 
is to allow the Attorney General to determine whether such an 
individual presents a risk to aviation or national security before 
flight instruction may begin. The Department believes that it is 
unnecessary to make a candidate wait for 45 days in order to begin 
training if the Department has completed its risk assessment. 
Therefore, after providing the required notification to the Attorney 
General as described in this subpart, the Provider may begin 
instruction of a candidate if the Attorney General has informed the 
Provider that the candidate does not present a risk to aviation or 
national security as result of the risk assessment conducted pursuant 
to section 113 of ATSA. If the Attorney General does not provide either 
an authorization to proceed with training or a notice to deny training 
within 45 days after receiving the required notification, the Provider 
may commence training at that time. All candidates, including those

[[Page 41151]]

granted expedited processing in accordance with Sec. 105.12, must show 
a valid passport establishing their identity to a Provider before 
commencing training. Candidates who are citizens or nationals of the 
United States, but who were required to provide notification to the 
Attorney General may present a valid United States picture driver's 
license in lieu of a passport.
* * * * *
    3. Amend Sec. 105.11 by revising the introductory text to paragraph 
(a) and adding a new paragraph (b) to read as follows;


Sec. 105.11  Individuals not requiring a security risk assessment.

    (a) Citizens and nationals of the United States. A citizen or 
national of the United States is not subject to section 113 of ATSA, 
unless designated by the Under Secretary of Transportation for 
Security. A Provider must determine whether a prospective trainee is a 
citizen or national of the United States prior to providing instruction 
on aircraft with a maximum certificated takeoff weight of 12,500 pounds 
or more. To establish United States citizenship or nationality, the 
prospective trainee must show the Provider from whom he or she seeks 
training any of the following documents as proof of United States 
citizenship or nationality:
* * * * *
    (b) Exception. Notwithstanding paragraph (a) of this section, a 
Provider is required to provide notification to the Attorney General 
with respect to any candidates who are within a class of persons 
designated by the Under Secretary of Transportation for Security. 
Individuals specified by the Under Secretary of Transportation for 
Security will be identified by procedures developed by the Department 
of Transportation and are not eligible for expedited processing.
* * * * *
    4. Amend Sec. 105.12 by revising the introductory text to paragraph 
(a) as follows:


Sec. 105.12  Notification for candidates eligible for expedited 
processing.

    (a) Expedited processing. The Attorney General has determined that 
providing aviation training to certain categories of candidates is not 
likely to present a risk to aviation or national security because of 
the aviation training already possessed by these individuals or because 
of risk assessments conducted by other agencies. Therefore, candidates 
determined by Providers to be eligible for expedited processing are 
subject to the notification requirements of this section, but do not 
have to comply with the more detailed notification requirements of 
section 105.13, unless the candidates are within a class of persons as 
designated by the Under Secretary of Transportation for Security. The 
following categories of candidates are eligible for expedited 
processing:
* * * * *
    5. Adding a new Sec. 105.13 to read as follows:


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

    (a) A Provider must submit a complete Flight Training Candidate 
Checks Program form and arrange for the submission of fingerprints to 
the Department in accordance with this section prior to providing 
flight training, except with respect to persons whom the Provider has 
determined, as provided in Sec. 105.11 or Sec. 105.12, are not subject 
to a security risk assessment or are eligible for expedited processing. 
A separate form must be submitted for each course or instance of 
training requested by a candidate. Where a Provider enlists the 
assistance of another Provider in training a candidate, no additional 
request need be submitted, as long as the specific instance of training 
has been approved.
    (b) The completed form should be sent to the Attorney General via 
electronic submission at https://www.flightschoolcandidates.gov/insdoc/index.html. No paper submissions of this form will be accepted.
    (1) In order to ensure that such electronic submissions are made by 
Federal Aviation Administration (FAA) certificated training providers, 
Providers must receive initial access to the system through the FAA. 
Providers should register through their local Flight Standards District 
Offices. The FAA has decided that registration will be by appointment 
only. Upon registration, Providers will be sent (via electronic mail) 
an access password to use the system.
    (2) Candidates may complete the online form at https://www.flightschoolcandidates.gov/insdoc/index.html to reduce the burden 
on the Provider. After the form has been completed by a candidate, it 
will be forwarded electronically to the Provider for verification that 
the candidate is a bona fide applicant. Verification by the Provider 
will be considered submission of the form for purposes of paragraph (a) 
of this section. In order to reduce the burden on the candidates, 
personal information only needs to be updated, rather than reentered, 
for each subsequent training request.
    (c) Candidates also must submit fingerprints to the Federal Bureau 
of Investigation (FBI) as part of the identification process. These 
fingerprints must be taken by a federal, state, or local law 
enforcement agency, or any other official approved by the Director of 
the Foreign Terrorist Tracking Task Force. In the case of candidates 
seeking training from providers located in countries other than the 
United States, fingerprints may be taken by officials at the nearest 
United States embassy or consulate. Law enforcement agencies are not 
required to participate in this process, but their cooperation is 
strongly encouraged. Any officials taking fingerprints as part of the 
notification process must comply with the following requirements when 
taking and processing fingerprints to ensure the integrity of the 
process:
    (1) Candidates must provide two forms of identification at the time 
of fingerprinting. In the case of aliens, one of the forms of 
identification must be the individual's passport; in the case of United 
States citizens or nationals, a valid photo driver's license issued in 
the United States may be submitted in lieu of a passport.
    (2) The fingerprints must be taken under the direct observation of 
a government official;
    (3) The fingerprints must be recorded on fingerprint cards 
distributed by the Director of the Foreign Terrorist Tracking Task 
Force for that purpose, or processed by other means approved by the 
Director of the Foreign Terrorist Tracking Task Force;
    (4) The fingerprint submissions must be forwarded to the FBI in the 
manner specified by the Director of the Foreign Terrorist Tracking Task 
Force;
    (5) Officials taking fingerprints should ensure that any 
fingerprints provided to the FBI are not placed within the control of 
the candidate or the Provider at any time; and
    (6) Candidates must pay for all costs associated with taking and 
processing their fingerprints.
    (d) In accordance with Public Law 101-515, as amended, the Director 
of the FBI is authorized to establish and collect fees to process 
fingerprint identification records and name checks for certain 
purposes, including non-criminal justice and licensing purposes. In 
addition to the cost to the FBI for conducting its review, other fees 
may be imposed, including the cost of taking the fingerprints and the 
cost of processing the fingerprints and submitting them to the FBI for 
review. Because the total fee may vary by state, the candidate must 
check with the

[[Page 41152]]

entity taking the fingerprints to determine the applicable total fee. 
This payment must be made at the designated rate for each set of 
fingerprints submitted.
    (e) In some cases, candidates seeking training from Providers 
abroad may be unable to obtain fingerprints. If a Provider located in a 
country other than the United States determines that compliance with 
the fingerprint requirement is not practicable, it may request, in 
writing, a waiver of the requirement, on a case-by-case basis, by 
contacting the Foreign Terrorist Tracking Task Force, Aviation Industry 
Liaison. In such a case, the Foreign Terrorist Tracking Task Force will 
have discretion to grant the waiver; deny the waiver; or prescribe a 
reasonable alternative manner of complying with the fingerprint 
requirement.
    (f) The 45-day review period by the Department will not start until 
all the required information has been submitted, including 
fingerprints.
    6. Adding a new Sec. 105.14 to read as follows:


Sec. 105.14  Risk assessment for candidates not granted expedited 
processing.

    (a) It is the responsibility of the Department of Justice to 
conduct a risk assessment for each candidate. The Department has made 
an initial determination that providing training to the aliens in the 
categories set forth in Sec. 105.12(a) presents little risk to aviation 
or national security and therefore has established an expedited 
processing procedure for these aliens. Based on the information 
contained in each Flight Training Candidates Checks Program form and 
the corresponding set of fingerprints, the Department will determine 
whether a candidate not granted expedited processing presents a risk to 
aviation or national security.
    (b) After submission of the Flight Training Candidate Checks 
Program form by the Provider, the Department will perform an interim 
risk assessment.
    (1) If the Department determines that a candidate does not present 
a risk to aviation or national security as a result of the interim risk 
assessment, the candidate and/or the Provider will be notified 
electronically that the candidate may proceed to the Provider to 
receive appropriate materials to complete the fingerprinting process 
described in Sec. 105.13(c) and (d). The Provider's e-mail also will 
provide a toll-free telephone number through which ``fingerprint 
packets'' will be provided.
    (2) If the Department determines that the candidate presents a risk 
to aviation or national security, when appropriate, it will notify the 
Provider electronically that training is prohibited.
    (3) For each training request, the Department will have 45 days 
from the date on which all required information, including 
fingerprints, is submitted to conduct an appropriate risk assessment. 
Every effort will be made to respond to a training request in the 
briefest time possible. If no notification or authorization by the 
Department has occurred within 45 days of submission of all the 
required information, the Provider may proceed with the training, upon 
establishing the candidate's identity in accordance with paragraph (d) 
of this section.
    (c) Providers must ascertain the identity of each candidate. For 
candidates who are not citizens or nationals of the United States, a 
Provider must inspect the candidate's passport to verify the 
candidate's identity before providing training; candidates who are 
citizens or nationals of the United States must present either a valid 
United States passport or a valid United States picture driver's 
license. If the candidate's identity cannot be verified, then the 
Provider cannot proceed with training.
    (d) If, at any time after training has begun, the Department 
determines that a candidate subject to this section being trained by a 
Provider presents a risk to aviation or national security, when 
appropriate, the Department shall notify the Provider to cease 
training. A Provider so notified shall immediately cease providing any 
training to the person, regardless of whether or in what manner such 
training had been authorized. The Provider who submitted the 
candidate's identifying information will be responsible for ensuring 
that the training is promptly halted, regardless of whether another 
Provider is currently training the candidate.
    (e) With regard to any determination as to an alien candidate's 
eligibility for training, when appropriate, the Department will inform 
the Secretary of State and the Commissioner of the Immigration and 
Naturalization Service as to the identity of the alien and the 
determination made.

    Dated: June 11, 2002
John Ashcroft,
Attorney General.
[FR Doc. 02-15061 Filed 6-11-02; 5:07 pm]
BILLING CODE 4410-19-P