September 21, 2004
The Transportation Security Administration (TSA) has issued a new rule that it says will guard against foreign terrorists learning to fly in the United States. While AOPA doesn't oppose the intent of the rule, the association is taking issue with the broad-brush application that would affect every single flight school and CFI.
"The flight training system should be 'off limits' to anyone who might try to use general aviation to harm the American people. AOPA has been at the forefront of the industry in advocating counterterrorist measures, such as photo identification of pilots and AOPA's Airport Watch," said AOPA President Phil Boyer.
"But based on our initial review of the rule, it applies unnecessary training and burdensome recordkeeping requirements to every flight school and every single flight instructor, whether or not they're training foreign students. If that's really TSA's intent, they've gone too far."
AOPA is talking to TSA to clarify the intent and applicability of the rule, while AOPA's legal and regulatory experts continue a line-by-line analysis of the document.
"The more we look at this, the more concerned we become about the unnecessary negative affect this rule could have on flight training," said Boyer. "This is compounded by the fact that TSA has issued it as an interim rule with no opportunity for industry involvement in its development."
TSA was directed to issue the rule by Congress in Section 612 of "Vision 100," the FAA reauthorization act. Under previous legislation, the Department of Justice screened and approved all foreign applicants for flight training in aircraft weighing more than 12,500 pounds. Vision 100 and TSA's rule shift the screening responsibility to TSA and require that any foreign flight student be cleared by TSA. The rule is being put into effect without the usual public comment period because of the congressional mandate and TSA's assessment that security requires immediate implementation.
The new rule requires every school and every freelance flight instructor to register with TSA. It puts the onus on the flight school and individual flight instructors to determine if a flight student is a foreign national. If so, the school or flight instructor must notify TSA that a non-U.S. citizen has requested flight training.
For a foreign national to receive training in an aircraft weighing less than 12,500 pounds, the school or flight instructor must send TSA a photo of the student after he or she first arrives for training. The student has to send TSA passport and visa data, fingerprints, and training details, among other things. In an illustration of the confusion over the rule, the student also must supply a "unique identification number assigned by TSA." TSA will charge the student $130 to process the application.
Training in aircraft weighing less than 12,500 pounds can start without TSA approval, as long as TSA has been notified and sent the applicant's information. Of course, if TSA determines the student is a threat, training must stop.
The rules requires that schools or flight instructors retain applicant information and TSA approval records for five years, and the records are subject to TSA audit.
The rule also mandates a recurrent "security awareness training program" for each flight school or independent flight instructor, regardless of whether they are training foreign students. Schools must maintain a record of such training for one year after the employee leaves the school. It doesn't say how long independent instructors have to keep records of their security training. Again, these records are subject to TSA and FAA audit.
Flight schools and instructors have to comply with the new rule starting October 5 for training in large aircraft, October 20 for training in aircraft weighing less than 12,500 pounds.
Comments on the interim final rule are due by October 20, 2004, and may be filed electronically at http://dms.dot.gov. Comments must be identified by TSA's docket number: TSA-2004-19147.
September 21, 2004
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AOPA thanks our members for their continued support in protecting the freedom to fly.