N.J. pilots again under assault in state's general assembly

Speaker Albio Sires
New Jersey General Assembly
House Annex
P.O. Box 068
Trenton, NJ 08625-0068

Re: New Jersey Senate Bill 432

Dear Speaker Sires:

The Aircraft Owners and Pilots Association (AOPA) represents the aviation interests of over 398,000 members nationwide. On behalf of the more than 9,550 members in New Jersey, AOPA is opposed to any state proposal requiring identity background checks of flight students.

AOPA strongly opposes New Jersey Senate Bill 432 because it is preempted by federal requirements for aviation safety and security. The federal government has taken numerous actions to address aviation security concerns, these combined with recent state general aviation security initiatives, make Senate Bill 432 unnecessary. Passage of this legislation does nothing to enhance security or protect the citizens of your state but would impose an unnecessary restriction and encumbrance on those who seek to learn to fly—an activity regulated and controlled by the federal government.

Federal preemption

The Federal Aviation Administration (FAA) and the Transportation Security Administration (TSA) issued a legal opinion that state and local governments cannot pass laws regulating pilot licensing. In a letter dated April 10, 2003, TSA Assistant Administrator for Transportation Security Policy Thomas Blank wrote, "It is the position of TSA that federal law impliedly preempts state-imposed aviation security requirements...and that similar legislation being contemplated by other state legislators would likewise be preempted." In a letter dated October 15, 2002, from Federal Aviation Administration Deputy Chief Counsel James Whitlow, also stated 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 Michigan challenging legislation similar to New Jersey Senate Bill 432 that was enacted by the Michigan Legislature. AOPA contends the law is a violation of Article VI, clause 2 (the "supremacy clause") of the U.S. Constitution. Working in concert with AOPA, legislators in Michigan have introduced legislation that would modify their state law and replace the background check requirement with more practicable flight school security recommendations. That bill recently passed committee with unanimous consent.

Federal actions on aviation security

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

• Regulations adopted by the Federal Aviation Administration (FAA) and the Transportation Security Administration on January 24, 2003, that permits the immediate suspension, revocation, or refusal to issue an airmen certificate to anyone that the TSA (an agency of the Department of Homeland Security) has determined poses a threat to transportation security. Using "watch list" databases maintained by the CIA, FBI, and other intelligence agencies, the list of licensed pilots is thoroughly reviewed by federal officials to look for persons of interest who may be impacted by this rule issued in January.
• There are current federal restrictions on flight training of foreign nationals, including a requirement for background checks for individuals seeking to receive a U.S. pilot certificate on the basis of a foreign pilot certificate. This requirement was put in place in July 2002.
• A federal requirement mandates that the U.S. Department of Justice conduct a comprehensive background check for all non-U.S. citizens seeking flight training in larger aircraft weighing more than 12,500 pounds. Legislation expanding this requirement to cover all foreign nationals seeking pilot training regardless of aircraft weight has been approved by the U.S. Senate and is in conference committee with the House for inclusion in the FAA Reauthorization Bill (H.R.2115).
• An FAA rule, adopted in October 2002, requires a pilot to carry a government-issued photo identification along with their pilot certificate when operating an aircraft.
• AOPA has partnered with the Transportation Security Administration (TSA) to develop a nationwide Airport Watch program that uses the more than 650,000 pilots as eyes and ears for observing and reporting suspicious activity. This helps general aviation keep our airports secure without needless and expensive security requirements. AOPA Airport Watch is supported by a centralized governmentally staffed toll-free hotline (866/GA-SECURE) 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 a training videotape to educate pilots and airport employees as to how security of their airports and aircraft can be enhanced.
• Recently, the TSA formed a working group to help develop appropriate security guidelines for general aviation airports. The working group was formed as a part of the Aviation Security Advisory Committee (ASAC). This group will have its work completed by September of this year.
• Since September 11, the FAA and government officials have utilized airspace restrictions at various locations across the United States to prohibit or restrict aircraft operations in certain areas when intelligence officials report heightened security sensitivity. These airspace restrictions, such as the ones that have remained in place around New York and Washington, D.C., are patrolled and enforced by U.S. Customs and U.S. military aircraft.

Identity of applicants already verified

The identity of a pilot and student pilot is verified using federal procedures already in place.

All pilots and a student pilot, prior to being allowed to operate an aircraft in solo flight without a flight instructor present, must undergo a medical examination by a designated medical examiner and complete FAA form 8500-8 "Application for Airman Medical Certification or Airman Medical and Student Pilot Certification." While this medical examination ensures the applicant does not have any disqualifying medical conditions that would prohibit him/her from safely operating an aircraft, the form does ask for personal information and requests the individual to disclose any non-traffic misdemeanor or felony conviction. Signing the form authorizes the FAA, through the designated state department of motor vehicles, to verify the applicant's information using the National Driver Registry. Any individual providing false or inaccurate information is subject to a fine up to $250,000 or imprisonment.

As previously mentioned, there is an FAA requirement, adopted in October 2002, that requires a pilot to carry a government-issued photo identification along with their pilot certificate when operating an aircraft. This requirement would extend to a student pilot operating an aircraft in solo flight.

Finally, once a student pilot has completed all flight training requirements, that student is subject to a pilot examination conducted by the FAA or a designated pilot examiner. The applicant must complete an FAA Form 8710-1 "Airman Certificate and/or Rating Application form." The pilot examiner is required to verify identify of the applicant using some form of government-issued photo identification.

New Jersey's security task order

On March 21, 2003, the New Jersey Domestic Security Preparedness Task Force, with the support of the governor's office, issued a task order outlining enhanced security recommendations at the state's 486 licensed general aviation airports. This task order, which is far more encompassing than what any other state has done, required aircraft stored at an aeronautical facility for more than 24 hours to utilize a two-lock system for securing the aircraft. Aeronautical facilities were additionally required to post signage identifying emergency contact information. Recently, to comply with a recommendation of that task order, the state issued a request for information (RFI) for the installation of a video surveillance system at all public-use airports in New Jersey.

These are measures the state has already implemented, above and beyond any federal requirement, that more than adequately ensure the security of general aviation airports in your state. Additional identity background checks will provide no additional tangible security.

Conclusion

AOPA believes it is important that state security requirements do not undermine the national transportation system. The U.S. Congress has provided the responsibility for regulating the safety and security to the federal government. That is why we request that you hold any further action on Senate Bill 432 until better language can be adopted to address the concerns of the state without unnecessarily duplicating federal efforts.

Sincerely,

Andrew V. Cebula
Senior Vice President
Government and Technical Affairs

June 23, 2003