AOPA's comprehensive review of the Transportation Security Administration's "alien training" rule raises concerns that it may hit every U.S. pilot, flight instructor, and flight school. Unless TSA clarifies that U.S. citizens are exempt, AOPA believes the rule could be interpreted to mean that, starting next month, pilots would not be able to complete flight training - including flight reviews - without first going through some type of TSA check.
"That clearly was not the intent of Congress," said AOPA President Phil Boyer. "We worked with lawmakers as they were drafting 'Vision 100,' the FAA reauthorization act, to make sure TSA focused on the problem - foreign terrorists attempting to get flight training in the United States."
But after a careful parsing of the rule's language by AOPA's legal and regulatory staff, the association has determined the potential impact is significant.
AOPA expressed its concerns over the new rule during a weekly transportation security teleconference with TSA officials on Thursday and in numerous discussions with TSA policy staff.
TSA Administrator Adm. David Stone assured AOPA that the agency's intent was to vet foreign nationals, not U.S. citizens, applying for flight training. He said the agency does not want to harm the industry, and he has directed his staff to work with AOPA.
"We accept in good faith Adm. Stone's representation of the intent of the rule," said Boyer. "But we also have long experience in dealing with federal regulations. We know that at some point, the most restrictive interpretation permitted by the letter of the rule will likely be applied.
"It is absolutely essential that TSA clarify, in writing, that this rule does not apply to U.S. citizens," said Boyer.
The Vision 100 law requires TSA to set rules to vet foreign flight students to screen out potential terrorists. TSA issued the "interim final rule" on "Flight Training for Aliens and Other Designated Individuals" September 20 without the normal public review and comment period. TSA said the "security benefits" of the rule justified bypassing the normal public process.
"This is a perfect example of why there is normally a public review and comment process for federal regulations," said Boyer. "It provides an opportunity to catch the unintended consequences before they hurt people."
As AOPA reads the rule, pilots are required to prove to the flight school (TSA considers freelance or independent flight instructors to be flight schools for the purposes of the rule) that they're a U.S. citizen before taking any flight training. That proof must be an original birth certificate, a valid U.S. passport, or other federal government-issued proof of citizenship.
The CFI or flight school is required to copy that information and keep it on file for five years. The flight school must take a photo of the pilot when he reports for training and forward the photo to TSA. The photo also has to be kept on file for five years.
The flight school must notify TSA that a student wants to start flight training, and TSA must vet and approve the student.
To get TSA's approval, any pilot seeking flight training will have to submit a form and obtain a unique TSA ID number. TSA also wants the pilot's full name and any aliases, a copy of his unexpired passport and visa, country of birth and current country of citizenship, birth date, requested dates and location of training, type of flight training, and the pilot's U.S. pilot certificate number and type rating, if any.
In addition, TSA is demanding to know the pilot's addresses and telephone numbers for the past five years, and the agency requires the pilot's fingerprints, collected by "United States government personnel...or by an entity approved by TSA."
TSA will charge $130 to process the application.
Pilots training in aircraft weighing less than 12,500 pounds can start their training without TSA's approval (assuming all of the required information and notifications have been submitted), but if TSA notifies the instructor or school that the pilot is a threat, training must stop.
TSA is requiring all flight instructors and flight schools to register through their local flight standards district office (FSDO). But TSA apparently hasn't yet coordinated that with the FAA.
"We don't think TSA appreciates the enormity of that task, particularly with the very short time frame," said Boyer. "There are more than 86,000 flight instructors in the U.S." Instructors and schools also have to undergo TSA-approved recurrent "security awareness" training and maintain documentation of that training. And all required documentation is subject to TSA audit. (See " TSA issues alien training rule.")
"We'll continue to work with TSA to ensure that the rule does not apply to U.S. citizens," said Boyer.
September 24, 2004