Pilot Counsel

New photo ID requirements

January 1, 2003

The FAA has issued new rules that add "photo identification" to the list of credentials that a pilot must have when flying. The new rules also require that the pilot present this photo ID for inspection when requested. These new requirements have been in effect since October 28, 2002, the day they were issued. So, now is none too soon to look at them in some detail.

Think of this column as a supplement to one that appeared last summer (see " Pilot Counsel: Presenting Certificates and Logbooks," June 2002 Pilot). In that column we reviewed the requirements, as they then existed, for responding to an official request for pilot documentation. These new requirements (for a photo ID and presentation) need to be considered in the context of those other documentation requirements.

The new photo ID requirements are a direct result of the September 11, 2001, terrorist attacks that used civilian aircraft as weapons of destruction. Since then, the government has been expressing ongoing security concerns about the potential use of civilian aircraft for terrorist acts within the United States. As a result, we continue to see security measures such as temporary flight restrictions. This rulemaking is a response to the government's desire to be able to positively identify pilots operating U.S. registered civil aircraft. Our present pilot and medical certificates, while they do have identifying information on them, such as height, weight, color of hair and eyes, gender, and date of birth, do not seem to go far enough.

The government would much prefer to replace the form of pilot certificate now in use and have the FAA issue a new form of pilot certificate with the pilot's picture on it. In the long run that is probably what we will have, maybe even with some identifying biometric imprinting. But converting to such a system will be an administrative nightmare, and will be expensive both to the government and to the pilot community. That's why AOPA petitioned the FAA to allow pilots to carry a government-issued photo ID, such as a driver's license, as a means of positive identification. AOPA filed the petition in February 2002 as an efficient, cost-effective way to meet the intent of the Aviation and Transportation Security Act, and the new rule incorporates the heart of that petition. On an interim basis, these new requirements for a separate picture ID, one that most pilots already have, should avoid the administrative burden and expense to pilots and yet provide the same level of security that a photo pilot certificate would.

Here is a description of the changes, as well as the full text of the rules into which they are incorporated:

The first change is to FAR 61.3(a). It adds the requirement that each pilot carry a photo identification when exercising the privileges of a pilot certificate or other pilot authorization. So now the full regulation reads:

"A person may not act as pilot in command or in any other capacity as a required pilot flight crewmember of a civil aircraft of U.S. registry, unless that person:

Has a valid pilot certificate or special-purpose pilot authorization issued under this part in that person's physical possession or readily accessible in the aircraft when exercising the privileges of that pilot certificate or authorization. However, when the aircraft is operated within a foreign country, a current pilot license issued by the country in which the aircraft is operated may be used; and,

Has a photo identification that is in that person's physical possession or readily accessible in the aircraft when exercising the privileges of that pilot certificate or authorization. The photo identification must be a: (i) Valid driver's license issued by a state, the District of Columbia, or territory or possession of the United States; (ii) Government identification card issued by the Federal government, a state, the District of Columbia, or a territory or possession of the United States; (iii) U.S. Armed Forces' identification card; (iv) Official pass-port; (v) Credential that authorizes unescorted access to a security identification display area at an airport regulated under 49 CFR part 1542; or (vi) Other form of identification that the administrator finds acceptable."

We expect that the most commonly used photo ID will be the driver's license, but there are other forms of identification that pilots may carry that are also acceptable (especially helpful for those few pilots who have lost their driving privileges and do/not have another acceptable form of photo ID).

The second change is to FAR 61.3(l). It adds the photo identification to the list of documents that must be presented at the request of certain authorized officials. It also adds representatives of the newly created Transportation Security Administration (TSA) to the list of officials authorized to make such a request. It now reads:

"Each person who holds an airman certificate, medical certificate, authorization, or license required by this part [FAR Part 61] must present it and their photo identification as described in paragraph (a)(2) of this section for inspection upon a request from: (1) The administrator; (2) An authorized representative of the National Transportation Safety Board; (3) Any federal, state, or local law enforcement officer; or (4) An authorized representative of the Transportation Security Administration."

The security-conscious environment in which these changes were adopted raises the possibility that pilots may face more requests to produce their pilot documentation, which in the past have been rare. This makes it all the more important that pilots understand their rights and responsibilities, which we reviewed in the June column. Some of the guidance that I offered in that column bears repeating — the pilot's obligation to "present" for "inspection" does not mean "surrender."

The distinction is important. A surrender is voluntary on the pilot's part, and the pilot may not get his or her pilot credentials back once they have been voluntarily surrendered. There have been some ugly situations where a pilot's presentation has been misconstrued to be a voluntary surrender.

On the other hand, no official, including the ones named, has the power to take a pilot's credentials. Only the FAA administrator has the power to suspend or revoke a pilot's FAA certificates, and that is only after a pilot is afforded considerable procedural rights. Although it may be technically possible, in my experience an FAA suspension or revocation has never been done "on the spot."

In other words, a pilot's credentials presented for inspection in compliance with FAR 61.3(l) should be returned to the pilot immediately after a reasonable opportunity for inspection.

John S. Yodice