AOPA opposes New Jersey pilot ID law as unnecessary and unconstitutional

The Honorable Andrew R. Ciesla
Chairman
Senate Transportation Committee
New Jersey State Legislature
State House Annex
P.O. Box 068
Trenton, NJ 08625-0068

Re: N.J. S.B.1438

Dear Chairman Ciesla:

The Aircraft Owners and Pilots Association (AOPA) is a membership association representing over 388,000 pilots and aircraft owners nationwide, including 9,360 in the state of New Jersey. AOPA strongly opposes New Jersey Senate Bill 1438 because it is preempted by federal requirements for aviation safety and security. The federal government has taken numerous actions during 2002 to address aviation security concerns, making Senate Bill 1438 unnecessary. Just this week, President Bush and leaders of the U.S. House and Senate reached an agreement to enact legislation creating the new Homeland Defense Department to provide a national framework to defend the nation. Finally, the measures in Senate Bill 1438 would adversely affect pilots, flight schools, flying clubs, and businesses that support aviation in the state.

Federal preemption

The Federal Aviation Administration (FAA) issued a legal opinion that state and local governments cannot pass laws regulating pilot licensing. This was contained in a letter dated October 15, 2002, to AOPA's general counsel from the FAA's Chief Deputy Counsel James W. Whitlow. The FAA offered the opinion that "state legislation that requires the collection of personal information from prospective students, including fingerprinting and background checks, or disqualifies prospective students based on specified past criminal conduct would likely intrude into an area that Congress has preempted. Congress has reserved to the [FAA] Administrator the authority to regulate 'civilian schools giving instruction in flying.'"

The letter also expressed the importance and efficacy of uniformity in aviation security, and this is an appropriate role for the federal government to play. The FAA deputy counsel wrote that, "The qualifications of the person operating aircraft are determined according to federal rules and should not be subject to standards varying from state to state."

AOPA has filed a lawsuit that is pending before the U.S. District Court in eastern Michigan challenging legislation similar to New Jersey Senate Bill 1438 that was enacted by the Michigan Legislature, which requires fingerprinting and criminal background checks for flight students. AOPA contends the law is a violation of Article V1, Clause 2 (the "supremacy clause") of the U.S. Constitution.

Federal actions in 2002

Since the tragic events of 9/11, the federal government has taken numerous actions related to aviation security. These federal actions include:

• Restrictions on flight training of foreign nationals in large aircraft weighing more than 12,500 pounds. An amendment to the Transportation Security Act that would require background checks of all foreign flight school candidates regardless of aircraft size has been approved by the Senate Commerce Committee and is pending before Congress;
• A federal requirement for background checks of foreign individuals seeking to receive a U.S. pilot certificate on the basis of a foreign pilot certificate was put in place in July 2002;
• A new requirement was adopted by the Federal Aviation Administration (FAA) on October 28, 2002, at the urging of AOPA and with the support of key congressional leaders, which requires a pilot in command to have in his/her possession a government-issued photo identification along with their pilot and medical certificates;
• In January, the FAA issued a number of recommended actions addressing security for flight schools and fixed-based operators. With these recommendations, operators are already addressing security appropriate for their particular operation;
• Scrutiny of the FAA's pilot database by security officials, and;
• The Transportation Security Administration (TSA) has partnered with AOPA to develop a nationwide aviation watch system (Airport Watch) that is supported by a centralized toll-free hotline and system for reporting and acting on information provided by general aviation pilots. The Airport Watch program includes warning signs for airports, informational literature, and training videotape to educate pilots and airport employees as to how security of their airports and aircraft can be enhanced.

Adverse impact on aviation in New Jersey

Locally, Senate Bill 1438 will create an administrative and financial burden on the state commissioner of Transportation to provide photo identification cards for student pilots and aircraft renters. In 2001, there were more than 1,800 new student pilots and more than 11,400 active pilots in New Jersey alone in flight training for new certificates or to maintain proficiency. Administratively, this bill will be very costly while providing no effective aviation security enhancement.

This legislation could possibly deny individuals their right to receive flight training or rent aircraft in New Jersey. The bill creates unnecessary and arbitrary hurdles that will drive business out of state, increasing the economic burden New Jersey flight schools and aircraft rentals have been trying to carry since the September 11th tragedy.

We ask you to oppose Senate Bill 1438, preserving the right of the federal government to regulate aviation and recognizing the difficulties already faced by the general aviation industry.

Sincerely,

Andrew V. Cebula
Senior Vice President
Government and Technical Affairs

November 13, 2002