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Rule2024-08800

Flight Training Security Program

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Published

May 1, 2024

Effective

July 30, 2024

Issuing agencies

Homeland Security DepartmentTransportation Security Administration

Abstract

The Transportation Security Administration (TSA) is finalizing the 2004 interim final rule (IFR) that established the Flight Training Security Program (FTSP) (formerly known as the Alien Flight Student Program). The FTSP implements a statutory requirement under the Aviation and Transportation Security Act, as amended by the Vision 100- Century of Aviation Reauthorization Act, to prevent flight schools from providing flight training to any individuals who are not U.S. citizens or nationals, and who have not been vetted by the Federal Government to determine whether the flight training candidate is a security threat. The rule also requires security awareness training for certain flight training provider employees. In finalizing this rule, TSA addresses the comments on the IFR, recommendations from the Aviation Security Advisory Committee, and additional comments received during a reopened comment period. TSA also is eliminating years of programmatic guidance and clarifications by codifying current and relevant information into the regulatory text. Where possible, TSA is modifying the program to make it more effective and less burdensome. Finally, TSA is making other technical modifications to its regulations to consolidate in one location the agency's inspection authority.

Full Text

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<title>Federal Register, Volume 89 Issue 85 (Wednesday, May 1, 2024)</title>
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[Federal Register Volume 89, Number 85 (Wednesday, May 1, 2024)]
[Rules and Regulations]
[Pages 35580-35631]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2024-08800]

[[Page 35579]]

Vol. 89

Wednesday,

No. 85

May 1, 2024

Part V

Department of Homeland Security

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Transportation Security Administration

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49 CFR Parts 1500, 1503, 1515, et al.

Flight Training Security Program; Final Rule

Federal Register / Vol. 89 , No. 85 / Wednesday, May 1, 2024 / Rules
and Regulations

[[Page 35580]]

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DEPARTMENT OF HOMELAND SECURITY

Transportation Security Administration

49 CFR Parts 1500, 1503, 1515, 1540, 1542, 1544, 1546, 1548, 1549,
1550, 1552, 1554, 1570, and 1572

[Docket No. TSA-2004-19147; Amendment No. 1552-1]
RIN 1652-AA35

Flight Training Security Program

AGENCY: Transportation Security Administration, DHS.

ACTION: Final rule.

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SUMMARY: The Transportation Security Administration (TSA) is finalizing
the 2004 interim final rule (IFR) that established the Flight Training
Security Program (FTSP) (formerly known as the Alien Flight Student
Program). The FTSP implements a statutory requirement under the
Aviation and Transportation Security Act, as amended by the Vision 100-
Century of Aviation Reauthorization Act, to prevent flight schools from
providing flight training to any individuals who are not U.S. citizens
or nationals, and who have not been vetted by the Federal Government to
determine whether the flight training candidate is a security threat.
The rule also requires security awareness training for certain flight
training provider employees. In finalizing this rule, TSA addresses the
comments on the IFR, recommendations from the Aviation Security
Advisory Committee, and additional comments received during a reopened
comment period. TSA also is eliminating years of programmatic guidance
and clarifications by codifying current and relevant information into
the regulatory text. Where possible, TSA is modifying the program to
make it more effective and less burdensome. Finally, TSA is making
other technical modifications to its regulations to consolidate in one
location the agency's inspection authority.

DATES:
Effective Date: This rule is effective July 30, 2024.
Compliance Date: Flight training providers and individuals subject
to the requirements of this rule must comply with these sections by
July 30, 2024. Until this date, all regulated entities must continue to
comply with the requirements in the IFR.

FOR FURTHER INFORMATION CONTACT:
Technical questions: D. Julean Thorpe, Enrollment Services and
Vetting Programs, Vetting Programs Division, TSA; telephone: (571) 227-
1932; email: <a href="/cdn-cgi/l/email-protection#9adccec9cab4f2fff6eadaeee9fbb4fef2e9b4fdf5ec"><span class="__cf_email__" data-cfemail="53150700037d3b363f23132720327d373b207d343c25">[email&#160;protected]</span></a>.
Legal questions: David M.G. Ross, Office of Chief Counsel, TSA;
telephone: (571) 227-2465; email: <a href="/cdn-cgi/l/email-protection#693d3a2844262a2a443b4f3a3a291d1a08470d011a470e061f"><span class="__cf_email__" data-cfemail="a7f3f4e68ae8e4e48af581f4f4e7d3d4c689c3cfd489c0c8d1">[email&#160;protected]</span></a>.

SUPPLEMENTARY INFORMATION:

Availability of Rulemaking Document

You can find an electronic copy of this rulemaking using the
internet by accessing the Government Publishing Office's web page at
<a href="https://www.govinfo.gov/app/collection/FR/">https://www.govinfo.gov/app/collection/FR/</a> to view the daily published
Federal Register edition or accessing the Office of the Federal
Register's web page at <a href="https://www.federalregister.gov">https://www.federalregister.gov</a>. Copies are also
available by contacting the individual identified for ``General
Questions'' in the FOR FURTHER INFORMATION CONTACT section. Make sure
to identify the docket number of this rulemaking.

Small Entity Inquiries

The Small Business Regulatory Enforcement Fairness Act (SBREFA) of
1996 requires TSA to comply with small entity requests for information
and advice about compliance with statutes and regulations within TSA's
jurisdiction. Any small entity that has a question regarding this
document may contact the person listed in the FOR FURTHER INFORMATION
CONTACT section. Persons can obtain further information regarding
SBREFA on the Small Business Administration's web page at <a href="https://advocacy.sba.gov/resources/reference-library/sbrefa/">https://advocacy.sba.gov/resources/reference-library/sbrefa/</a>.

Abbreviations and Terms Used in This Document

AFSP--Alien Flight Student Program
ADIS--Arrival and Departure Information System
ASAC--Aviation Security Advisory Committee
ATSA--Aviation and Transportation Security Act
ATS--Automated Targeting System
CBP--U.S. Customs and Border Protection
CFI--Certified Flight Instructor
CFR--Code of Federal Regulations
CHRC--Criminal History Records Check
CTCEU--Counterterrorism and Criminal Exploitation Unit
DHS--Department of Homeland Security
DoD--Department of Defense
DOJ--Department of Justice
DOS--Department of State
E.O.--Executive Order
FAA--Federal Aviation Administration
FBI--Federal Bureau of Investigation
FR--Final Rule
FTSP--Flight Training Security Program
GAO--Government Accountability Office
HME--Hazardous Materials Endorsement
IACRA--Integrated Airman Certification and Rating Application
ICE--U.S. Immigration and Customs Enforcement
IDENT--Automated Biometrics Identification System
IFR--Interim Final Rule
NARA--National Archives and Records Administration
OMB--Office of Management and Budget
PIA--Privacy Impact Assessment
PRA--Paperwork Reduction Act
RFA--Regulatory Flexibility Act
RIA--Regulatory Impact Analysis
SAVE--Systematic Alien Verification for Entitlements
SENTRI--Secure Electronic Network for Travelers Rapid Inspection
SEVIS--Student and Exchange Visitor Information System
SEVP--Student and Exchange Visitor Program
SORN--System of Records Notice
STA--Security Threat Assessment
TSA--Transportation Security Administration
TWIC--Transportation Worker Identification Credential
U.S.--United States
U.S.C.--United States Code
USCIS--U.S. Citizenship and Immigration Services

Table of Contents

I. Overview
A. Purpose of This Rulemaking
B. Statutory and Rulemaking History
1. Introduction
2. Imposing Fees for the FTSP
3. Evolution of Flight Training Security
4. Aviation Security Advisory Committee's Recommendations
5. Reopening of Comment Period
C. Organization of Final Rule
D. Regulatory Relief
1. Reducing Frequency of Security Awareness Training
2. Electronic Recordkeeping and FTSP Portal
3. Time-Based STAs
E. Summary of Other Modifications
II. Summary of Regulatory Requirements
A. Who is required to comply?
1. Flight Training Providers
2. Lessors of Flight Training Equipment
3. Candidates
B. What must flight training providers do in order to comply?
1. Determine Whether an Individual Is a Candidate for Flight
Training
a. Verify Whether an Individual Is a U.S. Citizen or U.S.
National (Sec. 1552.7(a)(1))
b. Verify Status of Foreign Military Pilots Endorsed by the
Department of Defense (Sec. 1552.7(a)(2))
c. Determine Whether an Individual Providing ``Side Seat''
Support Is a Candidate (Sec. 1552.3)
2. Determine Whether the Candidate Is Required To Be Vetted
Before Receiving Flight Training
a. Activities Considered Flight Training Events (Sec. 1552.3)
b. Activities Considered Recurrent Training (Sec. 1552.3)
c. Activities That Do Not Require Notification
3. Notify TSA of Flight Training Events for Candidates (Sec.
1552.51)

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a. Information To Be Included in Notification of a Flight
Training Event (Sec. 1552.51(a))
b. Candidate Photograph (Sec. 1552.51(d))
c. Notification of an Update or Cancellation (Sec. 1552.51(g))
d. Expedited Processing (Sec. 1552.51(f))
4. Deny Flight Training to Candidates Determined To Be a
Security Threat and Notify TSA if They Become Aware of a Threat
(Sec. Sec. 1552.3, 1552.7(b), (c), and (d), and 1552.31(e))
5. Designate a Security Coordinator (Sec. 1552.9)
6. Provide Security Awareness Training to Employees (Sec.
1552.13)
7. Maintain Records (Sec. 1552.15)
C. What must a candidate do in order to comply with the rule and
receive flight training?
1. Submit Information Sufficient for TSA To Conduct a Security
Threat Assessment (Sec. 1552.31)
2. Pay Fee for the Security Threat Assessment
a. Fees (Sec. 1552.39)
b. Reduced Fee for Comparable STAs (Sec. 1552.37)
D. How does TSA determine whether a candidate is eligible for
flight training?
1. Immigration Check (Sec. 1552.35)
2. Intelligence Check (Sec. 1552.31(c))
3. Criminal History Records Check (Sec. 1552.31(c))
4. Rap Back
E. How do flight training providers and candidates provide the
required information to TSA?
1. Use the FTSP Portal To Submit Documents (Sec. 1552.17)
2. Use of the FTSP Portal for Recordkeeping (Sec. 1552.15)
3. Use the FTSP Portal To Create and Access Accounts (Sec.
1552.17)
4. Use the FTSP Portal To Access FTSP Guidance (Sec. 1552.17)
F. Compliance Guidelines
G. What happens if a flight training provider or candidate fails
to comply?
1. False Statements (Sec. 1552.19)
2. Compliance, Inspection, and Enforcement (Sec. 1503.207)
H. Severability
III. Summary of Changes Between IFR and Final Rule
IV. Discussion of Public Comments and TSA Responses
A. Solicitation of Comments on the IFR
B. General Rulemaking Issues
1. Justification for the FTSP
2. TSA's Authority To Impose Requirements
3. TSA's Authority To Impose Fee for STAs
4. TSA's Decision To Issue an IFR
5. Economic Impacts of the FTSP on the Industry
C. Specific Regulatory Requirements
1. Terms (General)
2. Applicability
a. General
b. Scope of Who Is Considered a Flight Training Provider
c. Responsibility for Compliance Under Leasing Agreements for
Aircraft and Aircraft Simulators
3. Determining Whether Vetting Is Required
a. Citizenship Verification Requirements
b. DoD-Endorsee Verification Requirements
c. Side-Seat Support
4. Flight Training Events
a. Identification and Notification
b. Recurrent Training
5. STA Requirements
a. General
b. Frequency of Security Threat Assessment
c. Portability of a Determination of Eligibility
d. Security Threat Assessment Comparability
e. Security Threat Assessment Application Process
f. Immigration Checks
g. Correction of Record
6. Security Awareness Training Requirements
a. Flight Training Provider Employees
b. Frequency of Training
7. Recordkeeping Requirements and the FTSP Portal
a. Electronic Submission of Information and Recordkeeping
b. Registration Requirements for Flight Training Providers
c. Providing Information to TSA
d. FTSP Customer Support
e. Security of Information in FTSP Portal
f. Privacy Concerns
D. Compliance
1. Enforceability of the Rule
2. Compliance, Audits, and Inspections
3. Documenting Compliance
E. Additional Comments Received in Response to 2018 Reopening
1. General Rulemaking Comments
2. Recommending Against Requiring Flight Training Providers To
Undergo an STA
V. Rulemaking Analyses and Notices
A. Economic Impact Analyses
1. Regulatory Impact Analysis Summary
2. Executive Orders 12866 and 13563, and 14094 Assessment
3. OMB A-4 Statement
4. Alternatives Considered
5. Regulatory Flexibility Act Assessment
6. International Trade Impact Assessment
7. Unfunded Mandates Reform Act Assessment
B. Paperwork Reduction Act
C. Privacy Act
D. Executive Order 13132 (Federalism)
E. Environmental Analysis
F. Energy Impact Analysis

I. Overview

A. Purpose of This Rulemaking

This rulemaking finalizes an IFR issued in 2004.\1\ The purpose of
this rulemaking is to prevent non-U.S. citizens \2\ who are potential
threats to aviation or national security from receiving flight
training. Since issuance of the 2004 IFR, TSA's vetting of flight
training candidates has identified a number of individuals as potential
security threats,\3\ including some certificated \4\ pilots.
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\1\ See 69 FR 56324 (Sep. 20, 2004), codified at 49 CFR part
1552.
\2\ The enabling statute for this rule applies to aliens as the
term is defined in 8 U.S.C. 1101(a)(3). See 49 U.S.C. 44939. Section
1101(a)(3) defines an ``alien'' as ``any person who is not a citizen
or national of the United States.'' Section 1101(a)(22) defines a
``national of the United States'' as ``(A) a citizen of the United
States, or (B) a person who, though not a citizen of the United
States, owes permanent allegiance to the United States.'' Similarly,
8 U.S.C. 1401 et seq. sets the criteria for ``nationals and citizens
of the United States.'' TSA historically adopted the terminology
from the status, using the term ``alien'' in program documents, and
originally titling the program as the Alien Flight Student Program.
In 2021, the President directed DHS to cease using the term
``alien,'' recommending the term ``non-citizen'' in its place. Some
candidates in the FTSP program have taken offense at being referred
to as ``non-citizens.'' With this rulemaking, TSA is modifying 49
CFR part 1552 to use the term ``non-U.S. citizen'' for any
individual who is an ``alien'' as defined in 8 U.S.C. 1101(a)(3), is
not a ``national'' of the United States as defined in 8 U.S.C.
1101(a)(22), or who does not meet the requirements to be a national
or citizen of the United States under 8 U.S.C. 1401 et seq.
Throughout this preamble and through revisions to the rule, the term
``non-U.S. citizen'' means a person who is not a U.S. citizen or
U.S. national.
\3\ TSA uses the term ``threat'' in all of its vetting programs,
which is an essential element of the risk that an individual may
pose to aviation, transportation security, or national security. The
statute requiring the FTSP program uses the term ``risk,'' see id.,
which is a broader term that incorporates ``threat'' as used by TSA.
DHS generally sees risk as a function of threat, vulnerability and
consequences.
\4\ ``Certificated'' is a term used by the FAA for an individual
who has been granted an FAA certificate.
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This final rule addresses all public comments received on the IFR,
both through the initial comment period in 2004 and a reopened comment
period in 2018.\5\ TSA is also addressing recommendations TSA received
from regulated persons, other Federal organizations, and advisory
committees. Finally, TSA is eliminating more than a decade of
previously issued clarifications and interpretations, either by
addressing them in the preamble or through changes to the regulatory
text. All previously issued clarifications and interpretations are
superseded by this rulemaking.
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\5\ See 83 FR 23238 (May 18, 2018).
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In addition, Executive Order (E.O.) 13563 of January 18, 2011
(Improving Regulation and Regulatory Review), requires agencies to
periodically review existing regulations to identify requirements that
``may be outmoded, ineffective, insufficient, or excessively
burdensome, and to modify, streamline, expand, or repeal them, in
accordance with what has been learned.'' \6\ Consistent with these
requirements, this final rule provides an overall reduction in the
burden of compliance through several modifications that will reduce the
regulatory burden without negatively affecting security. For an

[[Page 35582]]

overview of these modifications, see section I.D.
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\6\ See Sec. 6 of E.O. 13563.
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B. Statutory and Rulemaking History

1. Introduction
Several of the terrorists who hijacked planes used to commit the
terrorist attacks on September 11, 2001, received flight training in
the United States.\7\ To address this security vulnerability, Congress
passed the Aviation and Transportation Security Act (ATSA), which
required those who are not U.S. citizens or nationals (hereafter,
referred to collectively as ``non-U.S. citizens'') to undergo vetting
in order to receive flight training in the United States.\8\
Specifically, section 113 of ATSA included two prerequisites for
providing flight training to non-U.S. citizens: (1) the flight training
provider must first notify the Attorney General that the individual
requested such training and must submit information about the
individual to the Attorney General; and (2) the Attorney General must
determine that the individual does not present a risk to aviation or
national security.\9\ ATSA also required the training provider to give
the Attorney General information regarding the individual's identity in
the form required by the Attorney General.\10\ This provision gave the
Attorney General the discretion to request a wide variety of
information from these individuals in order to determine whether they
presented a risk \11\ to aviation or national security.
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\7\ See The 9/11 Commission Report: Final Report of the National
Commission on Terrorist Attacks Upon the U.S., Official Government
Edition, at ch. 7 (U.S. Government Printing Office, 2004).
\8\ Public Law 107-71 (115 Stat. 597; Nov. 19, 2001), codified
at 49 U.S.C. 44939, as amended.
\9\ Id.
\10\ Id.
\11\ TSA uses the term ``threat'' in all of its vetting programs
which is an essential element of the risk that an individual may
pose to aviation, transportation security, or national security. The
statute requiring the FTSP program uses the term ``risk,'' see id.,
which is a broader term that incorporates ``threat'' as used by TSA.
DHS generally sees risk as a function of threat, vulnerability and
consequences. See <a href="https://www.dhs.gov/sites/default/files/publications/18_0116_MGMT_DHS-Lexicon.pdf">https://www.dhs.gov/sites/default/files/publications/18_0116_MGMT_DHS-Lexicon.pdf</a>.
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On February 13, 2003, the Department of Justice (DOJ) issued a
final rule implementing the ATSA requirement.\12\ The DOJ rule applied
to individual flight training providers, training centers, certificated
carriers, and flight schools (collectively referred to as
``providers''), including those located in countries other than the
United States, if they provided training leading to a U.S. license,
certification, or rating.\13\
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\12\ 68 FR 7313 (Feb. 13, 2003).
\13\ Id. at 7318.
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The DOJ rule also required a provider to submit certain identifying
information for each non-U.S. citizen (referred to as ``candidates'')
and other individuals designated by the Administrator of TSA \14\
before providing training to the candidate. Using the information
provided, which included fingerprints and financial information, DOJ
performed a risk assessment. Consistent with the requirements in
section 113 of ATSA, if DOJ did not complete a candidate's risk
assessment within the time period designated in the statute, the
provider could initiate the candidate's training. If the training
provider received subsequent notification that the candidate presented
a risk to aviation or national security, the provider was required to
immediately cease the candidate's training.
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\14\ Referred to at that time as the Department of
Transportation's Under Secretary for Transportation Security.
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Beginning in December 2003, the following series of legislative
actions substantially modified the requirements in ATSA.
<bullet> The Vision 100-Century of Aviation Reauthorization Act
(the Vision 100 Act) \15\ transferred the function of vetting
candidates from the Attorney General to the Secretary of the Department
of Homeland Security (DHS) \16\ and required DHS to issue an IFR to
implement additional requirements added to 49 U.S.C. 44939.\17\ These
amendments included authority for DHS to charge for the costs of
conducting the required vetting.\18\
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\15\ Vision 100--Century of Aviation Reauthorization Act, Public
Law 108-176 (117 Stat. 2490, 2574; Dec 12, 2003).
\16\ See id. at section 612 (amending 49 U.S.C. 44939).
\17\ See id. at section 612(b)(1). For a discussion of the
amendments to 49 U.S.C. 44939, see section I.C of the 2004 IFR, 69
FR at 56327.
\18\ See id. at section 612(a) (amending 49 U.S.C. 44939(g)).).
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<bullet> Section 520 of the Department of Homeland Security
Appropriations Act, 2004 required the collection of fees authorized by
the Vision 100 Act.\19\
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\19\ See section 520 of Public Law 108-90 (Oct. 1, 2003), as
codified at 6 U.S.C. 469(b).
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<bullet> Section 543 of the Department of Homeland Security
Appropriations Act, 2009, further amended 6 U.S.C. 469 to ensure the
scope of the program includes both initial and recurrent training.\20\
This law required DHS to establish a process to properly identify
individuals who are non-U.S. citizens who receive recurrent flight
training, and to ensure that those individuals do not pose a risk to
aviation or national security. These amendments also authorize DHS to
impose reasonable fees to recoup the cost of vetting candidates seeking
recurrent training.\21\
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\20\ See section 543, Division D of the Consolidated Security,
Disaster Assistance, and Continuing Appropriations Act, 2009, Public
Law 110-329 (122 Stat. 3574; Sept. 30, 2008).
\21\ See id.
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ATSA created TSA as a component of the Department of
Transportation. Section 403(2) of the Homeland Security Act of 2002
(HSA) \22\ transferred all functions related to transportation
security, including those of the Secretary of Transportation and the
Under Secretary of Transportation for Security, to the Secretary of
Homeland Security. Pursuant to DHS Delegation Number 7060.2, the
Secretary delegated to the Administrator of TSA, subject to the
Secretary's guidance and control, the authority vested in the Secretary
with respect to the TSA, including the authority in section 403(2) of
the HSA.
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\22\ Public Law 107-296 (116 Stat. 2135; Nov. 25, 2002).
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TSA established the FTSP by issuing an IFR with request for
comments on September 20, 2004.\23\ The IFR implemented many of the
same requirements as the program previously administered by DOJ
pursuant to the statutory requirements in 49 U.S.C. 44939. Consistent
with section 520 of the Department of Homeland Security Appropriations
Act of 2004, the IFR also set fees to cover costs incurred by the
program.\24\ As required by section 543 of the Department of Homeland
Security Appropriations Act of 2009, TSA subsequently published a
notice in the Federal Register announcing an additional fee to cover
processing of a security threat assessment (STA) \25\ for each
candidate engaged in recurrent training.\26\
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\23\ See supra note 1.
\24\ See supra note 19. Section 520 of the DHS Appropriations
Act, 2004, as codified at 6 U.S.C. 469(a), requires TSA to collect
fees to cover the costs of performing background record checks.
\25\ For purposes of this rulemaking and consistent with common
vetting terminology, TSA uses the term ``security threat
assessment'' or ``STA'' in place of the term ``security background
check.''
\26\ See 74 FR 16880 (Apr. 13, 2009). See also supra note 20 for
more information on the DHS Appropriations Act of 2009.
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2. Imposing Fees for the FTSP
As noted above, TSA is authorized to collect fees under 49 U.S.C.
44939 and is required to collect fees to cover the costs of vetting
under 6 U.S.C. 469. To comply with 6 U.S.C. 469, which requires TSA to
fund vetting and credentialing programs through user fees, TSA charges
fees for candidates who receive an STA under the FTSP.
TSA determined the fees for the FTSP program in accordance with
Office of Management and Budget (OMB)

[[Page 35583]]

Circular No. A-25. The fees are set to recover a share of the service
costs from all individuals that use a particular service, and a
description of the processes that went into estimating the proposed
fees is available in the Fee Report in the rulemaking docket. TSA may
increase or decrease the fees described in this regulation to achieve
efficiencies or to accommodate inflation, changes in contractual
services, changes in populations, or other factors following
publication of the final rule. TSA will publish a notice in the Federal
Register notifying the public of any fee changes and will update fee
information on the website dedicated to this program.
TSA incurs costs associated with performing STAs, assessing
comparable STAs, conducting expedited processing, requesting Federal
Bureau of Investigation (FBI) reviews, issuing Determinations of
Eligibility, maintaining the FTSP Portal, and processing provider
notifications of flight training events. TSA expends resources to
establish, operate, and maintain the technology to facilitate the STA
process for candidates and provider compliance with this program
entirely through the FTSP Portal. In addition, TSA assumes in its
analysis that some online interactions will result in customer service
expenses.
A candidate pays a single fee that consolidates all fees assessed
by TSA, as presented in section II.C.2. The FTSP fee structure is
designed to cover TSA's anticipated costs of conducting and
administering STA services over the 5-year duration of each STA. TSA
calculated the proposed fees based on estimates for the cost of each
respective service, pertinent to the expected number of candidates that
will benefit from the services. The following summarizes the costs
consolidated into the fee:
<bullet> Once candidate information is captured and records are
established, TSA incurs costs to run the information through the
various databases accessed for the STA. TSA incurs costs to construct,
maintain, and operate the information technology platform that enables
comparisons of applicant information to multiple intelligence,
immigration and law enforcement databases, and other information
sources.
<bullet> TSA incurs additional expenses to evaluate the information
received from these sources, make decisions as to whether a candidate
may pose a security threat, correct records with the candidate when
necessary, and communicate with other entities, such as the candidate's
employer, flight training provider, or governmental agencies.
<bullet> Additional costs include staffing for this service to (1)
adjudicate the results of Criminal History Records Checks (CHRCs); (2)
conduct immigration checks; (3) provide candidates an opportunity to
correct their records; and (4) process the recordkeeping and training
event notifications required by the program.
<bullet> Finally, the fee includes the FBI's fee to process CHRCs.
TSA collects this fee and forwards it to the FBI.
To properly recover the cost of this vetting service, TSA set the
FTSP standard fee at $140, and the FTSP reduced fee at $125. As
discussed more fully in section II.C.2.b., candidates may be eligible
for a reduced fee if they already completed a comparable STA recognized
by TSA.\27\
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\27\ See fee study and Regulatory Impact Analysis posted on the
public docket at <a href="https://www.regulations.gov/docket?D=TSA-2004-19147">https://www.regulations.gov/docket?D=TSA-2004-19147</a>.
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3. Evolution of Flight Training Security
In late 2004 and early 2005, after the IFR took effect, TSA held
six meetings with industry representatives subject to the regulatory
requirements. In response to questions and concerns raised during these
meetings and through public comments submitted on the IFR, TSA issued
clarifications, interpretations, exemptions, and other guidance
documents.\28\ This final rule reflects TSA's review of these
previously issued documents and statements, for both internal and
external audiences, and determinations of whether to make them
permanent. As a result of this review, any previously issued
interpretations of the provisions of 49 CFR part 1552 published on or
before the effective date of this final rule are withdrawn and
superseded by this rulemaking.
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\28\ A list of these documents may be found under Supporting &
Related Material in the public docket for the FTSP program, at
<a href="https://www.regulations.gov/docket/TSA-2004-19147/document?documentTypes=Supporting%20%26%20Related%20Material">https://www.regulations.gov/docket/TSA-2004-19147/document?documentTypes=Supporting%20%26%20Related%20Material</a>.
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In July 2012, the Government Accountability Office (GAO) reviewed
the program and provided the following recommendations to TSA: (1)
identify instances where non-U.S. citizens receive Federal Aviation
Administration (FAA) airman certificates without first undergoing an
STA and the reasons for these occurrences; (2) strengthen controls to
prevent future occurrences; and (3) establish a pilot program to check
the program's data against DHS data on candidates' admissibility status
to help detect immigration violations by non-U.S. citizen flight
students (see discussion in section II.D.).\29\ DHS concurred with
these recommendations. TSA adopted the following corrective actions
that continue to operate under this final rule: TSA and the FAA
exchange data under a memorandum of understanding, and TSA sends a
candidate's information to the U.S. Customs and Border Protection (CBP)
Arrival and Departure Information System (ADIS) to assist CBP in
determining a candidate's purpose for entering the United States when
they arrive at the U.S. border. See discussion in section II.D.
---------------------------------------------------------------------------

\29\ See GAO-12-875, July 18, 2012, available at <a href="https://www.gao.gov/products/GAO-12-875">https://www.gao.gov/products/GAO-12-875</a>.
---------------------------------------------------------------------------

As discussed more fully in section II.D.1, TSA also works directly
with U.S. Immigration and Customs Enforcement (ICE), U.S. Citizenship
and Immigration Services (USCIS), and CBP to share information and
address unique circumstances regarding candidates. TSA refers
candidates who appear to be engaged in unauthorized employment,
criminal violations, and/or visa overstays to the ICE Counterterrorism
and Criminal Exploitation Unit (CTCEU). CTCEU reviews the candidate's
primary purpose for being in the United States and provides that
information to TSA to assist TSA in making a Determination of
Eligibility for the candidate. TSA uses the USCIS Systematic Alien
Verification for Entitlements (SAVE) program and the DHS Automated
Targeting System (ATS), administered by CBP to resolve immigration
concerns.\30\ GAO closed its recommendations as a result of these
actions.\31\
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\30\ FTSP uses CBP's ATS--Unified Passenger module to compare
candidate information against law enforcement, intelligence, and
other data. TSA shares information with CBP through ADIS to support
admissibility determinations of approved flight training candidates.
\31\ The use of information related to the FTSP is covered by
the Transportation Security Threat Assessment System of Records
Notice (SORN), most recently updated at 79 FR 46862 (Aug. 11, 2014).
TSA also shares information within DHS in compliance with section
(b)(1) of the Privacy Act of 1974 (5 U.S.C. 552a (Privacy Act).
---------------------------------------------------------------------------

4. Aviation Security Advisory Committee's Recommendations
Since issuance of the IFR, TSA has also engaged regularly with the
Aviation Security Advisory Committee (ASAC).\32\

[[Page 35584]]

The Aviation Security Stakeholder Participation Act of 2014 established
the ASAC as an advisory committee with whom the Administrator of TSA
consults, as appropriate.\33\ In 2016, the ASAC submitted five
recommendations to the Administrator regarding the FTSP, including: (1)
moving from an event-based STA to a time-based STA; (2) addressing
recordkeeping requirements between parties to wet and dry aircraft and
simulator leases; (3) requiring the use of the FTSP program for
Department of Defense (DoD) endorsees; (4) clarifying which events
require an STA; and (5) clarifying the impact of visa applicability on
flight training.\34\ This final rule addresses each of these
recommendations.
---------------------------------------------------------------------------

\32\ The ASAC is an official advisory body established under 49
U.S.C. 44946. The ASAC is composed of representatives from air
carriers, all-cargo air transportation, indirect air carriers, labor
organizations representing air carrier employees, labor
organizations representing transportation security officers,
aircraft manufacturers, airport operators, airport construction and
maintenance contractors, labor organizations representing employees
of airport construction and maintenance contractors, general
aviation, privacy organizations, the travel industry, airport-based
businesses (including minority-owned small businesses), businesses
that conduct security screening operations at airports, aeronautical
repair stations, passenger advocacy groups, the aviation security
technology industry (including screening technology and biometrics),
victims of terrorist acts against aviation, and law enforcement and
security experts. The Administrator of TSA consults with the ASAC,
as appropriate, in developing, refining, and implementing policies,
programs, rulemaking, and security directives.
\33\ Public Law 113-238 (128 Stat. 2842; Dec. 18, 2014), as
codified at 49 U.S.C. 44946.
\34\ See ASAC Meeting Minutes from July 28, 2016, available at
<a href="https://www.tsa.gov/sites/default/files/asac_meeting_minutes_28jul2016-final.pdf">https://www.tsa.gov/sites/default/files/asac_meeting_minutes_28jul2016-final.pdf</a> for the full report. Note
that neither the minutes nor this rulemaking contain or address
recommendations that include Sensitive Security Information under 49
CFR part 1520.
---------------------------------------------------------------------------

5. Reopening of Comment Period
In 2018, TSA reopened the comment period on the IFR to ensure TSA
adequately considered the current operational environment when
finalizing the IFR, to solicit updated comments following the original
comment period in 2004, and to solicit comments on the substance of the
2016 ASAC recommendations related to the FTSP that were under
consideration.\35\ In particular, TSA requested comments on six issues:
(1) costs and benefits of requiring flight training providers to
undergo an STA; (2) impact of moving from an event-based to time-based
STA requirement; (3) appropriate compliance requirements for parties
involved in leases of aircraft, aircraft simulators, and other flight
training equipment; (4) impact of allowing regulated parties to use
electronic recordkeeping, in whole or in part, to establish compliance;
(5) implications of refining the scope of STAs for candidates who train
with FAA-certified flight instructors operating outside of the United
States; and (6) sources of data on the number or percentage of flight
schools that only train U.S. citizens. TSA also requested the
submission of any other data or information available that it should
consider during the review of the IFR. TSA requested new comments in
these areas to expand upon issues raised by one or more commenters in
response to the IFR in 2004. See section IV for additional details on
the comments received.
---------------------------------------------------------------------------

\35\ See 83 FR 23238 (May 18, 2018).
---------------------------------------------------------------------------

Although 5 years have passed since TSA last solicited comments, TSA
does not believe the policymaking landscape for this rule has shifted
substantively since 2018. The policy changes in this rule are supported
by comments received on the IFR, or by comments received following the
2018 reopened comment period. TSA tailored the scope and content of the
final rule to reflect only those changes that are supported by the
public record.

C. Organization of Final Rule

The IFR divided the requirements into two subparts: flight training
and security awareness training. To provide greater clarity, this final
rule consists of three subparts. Subpart A outlines the scope of the
regulation, defines terms, and prescribes general requirements
applicable to all flight training providers. Subpart B prescribes
requirements applicable to all candidates regarding STAs and associated
fees. Subpart C prescribes requirements applicable to all flight
training providers concerning notification and management of flight
training events. Table 1 provides a distribution table for changes to
current 49 CFR part 1552.

Table 1--Distribution Table
------------------------------------------------------------------------
IFR Final rule
------------------------------------------------------------------------
1552.1(a);1552.21(a) (scope)................... 1552.1
1552.1(b); 1552.21(b) (definitions)............ 1552.3
1552.3(a)-(d) and (k) (notification of flight 1552.7 and 1552.51
training events)..............................
1552.3(a)-(d) and (k) (submission of 1552.31
information)..................................
1552.3(a)-(d), 1552.5 (fee).................... 1552.39
1552.3(e) (interruption of flight training).... 1552.31
1552.3(f) (fingerprints)....................... 1552.31
1552.3(g)(1) (false statements)................ 1552.19
1552.3(g)(2) (preliminary approval)............ 1552.35
1552.3(h) (U.S. citizens and DoD endorsees).... 1552.7
1552.3(i)(1) and 1552.25(a) (recordkeeping).... 1552.15
1552.3(i)(2) and 1552.25(c) (inspection)....... 1503.207
1552.3(j) (grandfathered candidates)........... (removed)
1552.23 (security awareness training).......... 1552.13
------------------------------------------------------------------------

D. Regulatory Relief

With publication of this final rule, TSA is modifying the FTSP
regulations to reduce the regulatory burden of compliance. Consistent
with E.O. 13563 of January 18, 2011,\36\ and TSA's statutory mandate
under 49 U.S.C. 114(l)(3), TSA has considered the impact of the costs
and the security benefits and determined that burden reduction
modifications can be made to the program without negatively affecting
the appropriate security posture or failing to execute the statutory
mandates. Three changes to the regulatory requirements will result in
notable cost savings to the industry: (1) modifying the refresher
security awareness training \37\ from an annual to a biennial
requirement; (2) providing for electronic recordkeeping and a dedicated
website (the FTSP Portal);

[[Page 35585]]

and (3) moving from an event-based STA to a time-based STA.
---------------------------------------------------------------------------

\36\ See supra note 6.
\37\ In the IFR, the term ``recurrent training'' applied both to
flight training for candidates and security awareness training for
employees. Through this final rule, TSA is modifying the security
awareness training terminology to require ``refresher training''
rather than ``recurrent training'' to distinguish the two
requirements.
---------------------------------------------------------------------------

1. Reducing Frequency of Security Awareness Training
The Vision 100 Act includes a requirement for the FTSP to mandate
security awareness training for flight training provider employees to
``increase their awareness of suspicious circumstances and activities
of individuals enrolling in or attending flight school.'' \38\ The IFR
required this training to be provided on an annual basis. In response
to industry feedback as discussed further in section IV.C.5.b., the
final rule has reduced the required frequency of security awareness
training to provide economic and logistical relief to flight training
providers, and to provide more flexibility in how they schedule
refresher training. Specifically, the final rule replaces the IFR's
annual security awareness training requirement with a requirement for
all covered flight training provider employees to receive initial
training within 60 days of hiring, and a biennial refresher training
requirement thereafter. TSA discusses these changes further in section
II.B.6. A provider may conduct refresher training on or before the 2-
year anniversary of the previous initial training or the last refresher
training.
---------------------------------------------------------------------------

\38\ See 49 U.S.C. 44939(i).
---------------------------------------------------------------------------

2. Electronic Recordkeeping and FTSP Portal
At the industry's request, TSA provided an online portal that
flight training providers use to meet the requirement to notify TSA of
a candidate's proposed and actual flight training events. This
capability was first provided in 2004 and updated in 2007. Today, all
flight training providers use TSA's online portal; no candidates or
flight training providers submit applications via traditional paper-
based methods. The final rule codifies this capability as mandatory for
this purpose.
This modification is consistent with multiple recommendations from
industry to establish an electronic storage capability for provider
accounts, to ease their storage costs and time burdens. In addition to
informal comments on this issue since the rule was first issued, the
recommendation was formally submitted to TSA in the comments during the
reopened comment period in 2018, requesting that TSA ``allow regulated
parties to use electronic recordkeeping, in whole or in part, to
establish compliance.'' \39\
---------------------------------------------------------------------------

\39\ Four major industry organizations and one major flight
training provider posted comments using this same explanation of the
request. All comments are available in the docket to this rulemaking
(TSA-2004-19147) at <a href="http://www.regulations.gov">www.regulations.gov</a>.
---------------------------------------------------------------------------

In response to these comments, and generally recognizing
advancements in electronic recordkeeping since the IFR was published,
TSA has enhanced its web-based capabilities to facilitate submission of
information and recordkeeping compliance. Through this rule, TSA is
expanding the availability of this option for both required and
optional use. Providing this option recognizes that flight training
providers may realize cost and time savings and reduce or eliminate
duplicative and costly physical and electronic recordkeeping by storing
and maintaining their records on the FTSP Portal. Section V describes
TSA's analysis of estimated cost savings for providers as a result of
these changes.
TSA may also benefit from the enhanced capabilities of the FTSP
Portal to increase efficiency and effectiveness in monitoring
compliance. Ready availability of stored records also provides TSA with
more immediate access to information about a candidate who has been
identified as a potential threat.
3. Time-Based STAs
Currently, an STA is required for each training event. Consistent
with recommendations and new vetting capabilities, under Sec.
1552.31(d) of this final rule, an STA is valid for up to 5 years. See
IV.C.5.B. for a more detailed discussion. This change from an event-
based STA to a time-based STA is possible due to significant
improvements in TSA's ability to conduct recurrent vetting of
candidates, which enables TSA to review a candidate's record on an on-
going basis. As discussed more fully in section II.D., TSA conducts
recurrent vetting of candidates through several intelligence databases
that include terrorist watchlists and can conduct continuous CHRCs of
candidates for disqualifying offenses through the FBI's Rap Back
service. This change aligns the FTSP with other TSA programs, such as
TSA PreCheck[supreg], Transportation Worker Identification Credential
(TWIC[supreg]), and Hazardous Materials Endorsement (HME).\40\
---------------------------------------------------------------------------

\40\ As discussed more fully in section II.C.2.b. (and the fee
study and Regulatory Impact Analysis (RIA) in the docket for this
rulemaking), TSA provides a reduced fee for individuals who have
completed a comparable STA, as determined by TSA. See also Sec.
1552.37.
---------------------------------------------------------------------------

Recurrent vetting has several benefits that reduce costs and
enhance security. First, recurrent vetting enables TSA to ensure
security while allowing for a time-based STA that can be valid for a 5-
year period. Second, as discussed more fully in section II.D.4.,
recurrent vetting allows TSA to continually vet a candidate and revoke
the approval if and when disqualifying information emerges. Third,
recurrent vetting enables TSA to reduce the costs of the rule by
reducing delays in processing training requests and supporting the
portability or sharing of a candidate's Determination of Eligibility
among flight training providers.
This modification will reduce costs and save time for individuals
who have multiple training events over a 5-year period. Rather than
paying a fee for each vetting event, candidates will pay a single fee
for a 5-year STA. As many candidates will have multiple training events
within a 5-year period, the time-based STA is likely to reduce the
total amount of fees most candidates must pay over time.\41\ Section
1552.51(f) also allows expedited processing for candidates that hold
type ratings \42\ and candidates who are lawful permanent residents of
the United States. As discussed in more detail in sections IV.C.5.b.-
d., TSA received many comments indicating that this change would likely
foster industry growth.
---------------------------------------------------------------------------

\41\ Id.
\42\ ``Type rating'' means an endorsement on a pilot certificate
indicating the make and type of aircraft that the individual has the
skill or authorization to operate, and that the holder of the
certificate has completed the appropriate training and testing
required by a civil or military aviation authority.
---------------------------------------------------------------------------

E. Summary of Other Modifications

This final rule includes additional modifications that will provide
benefits to the flight training industry and enhance security. First,
the final rule incorporates previously issued clarifications concerning
what type of training is covered by the regulation while eliminating
the four weight-based categories of training identified by the IFR.
TSA's response to comments in section IV.C.4.a. provides more
information on these revisions. Second, the rule clarifies who is
responsible for maintaining records of lease arrangements. Section
II.A.2. and TSA's response to comments in section IV.C.2.c. provides
more information on these revisions. Third, the final rule aligns this
program with TSA's other transportation security programs by requiring
flight training providers to designate a Security Coordinator to serve
as a security liaison with TSA. Section II.B.5. provides more
information on these revisions.
TSA also is consolidating provisions found throughout TSA's
regulations relating to inspections, as well as

[[Page 35586]]

harmonizing and consolidating terminology. TSA is mandated to: (1)
enforce its regulations and requirements; (2) oversee the
implementation and ensure the adequacy of security measures; and (3)
inspect, maintain, and test security facilities, equipment, and systems
for all modes of transportation.\43\ Through this regulation, TSA is
making a technical amendment to consolidate inspection requirements in
one location, a new Sec. 1503.207 in 49 CFR part 1503, which is that
part of TSA's regulations that specifically focuses on investigative
and enforcement procedures applicable to all of TSA's regulatory
requirements. TSA also is removing the definition of ``Public
transportation agency'' from Sec. 1503.103. TSA added the definition
of a public transportation agency to Sec. 1500.3 through a separate
rulemaking, making the definition in Sec. 1503.103 unnecessary.\44\
---------------------------------------------------------------------------

\43\ See 49 U.S.C. 114(f).
\44\ See 85 FR 16456 (March 23, 2020).
---------------------------------------------------------------------------

TSA also is making technical amendments to consolidate into a
single location several definitions applicable to the FTSP that are
also used in other parts of TSA's regulations. These amendments
standardize and harmonize the meaning of the following terms, without
substantively changing their meaning: ``Citizen of the United States,''
``Day,'' ``Lawful Permanent Resident,'' ``National of the United
States,'' and ``Non-U.S. Citizen.'' \45\
---------------------------------------------------------------------------

\45\ TSA's definitions relating to a person's citizenship status
are consistent with the definitions set out in the Immigration and
Nationality Act and those used by the U.S. immigration agencies.
Should the definitions change, TSA will make corresponding revisions
in title 49 of the CFR as necessary.
---------------------------------------------------------------------------

In each case, the harmonized definition added to Sec. 1500.3
reflects TSA's long-standing interpretation of the term, and the
clearest expression of its meaning. This final rule also removes these
terms from the definition sections of other parts of 49 CFR chapter
XII, as appropriate.
TSA also revised and added definitions to Sec. 1552.3 that further
clarify regulatory requirements and minimize ambiguity. Revised
definitions include ``Aircraft Simulator,'' ``Candidate,''
``Demonstration flight for marketing purposes,'' ``Flight Training,''
and ``Recurrent training.'' New definitions include ``Determination of
Eligibility,'' Determination of Ineligibility,'' ``DoD,'' ``DoD
Endorsee,'' ``Flight Training Provider,'' ``Flight Training Provider
Employee,'' ``Flight Training Security Program (FTSP),'' ``FTSP
Portal,'' ``FTSP Portal account,'' ``Non-U.S. Citizen,'' ``Security
Threat,'' ``Security Threat Assessment,'' ``Simulated flight for
entertainment purposes,'' and ``Type rating.''

II. Summary of Regulatory Requirements

A. Who is required to comply?

As noted above, the purpose of this rule is to prevent the
provision of flight training to non-U.S. citizens who may pose a
security risk. In general, the requirements apply to those who provide
flight training (flight training providers), those who provide
equipment for flight training (lessors of flight training equipment),
and those who receive flight training (candidates). This rule prohibits
providing flight training to a candidate, as defined in Sec. 1552.3,
unless the flight training provider and candidate submit certain
information to TSA, the candidate remits the specified fee to TSA, and
TSA determines that the candidate is not known or suspected to be a
threat to aviation or national security.
1. Flight Training Providers
Under the final rule, a flight training provider is defined in
Sec. 1552.3 to include the following persons:
<bullet> Any person that provides instruction under 49 U.S.C.
subtitle VI, part A, in the operation of any aircraft or aircraft
simulator in the United States or outside the United States, including
any pilot school, flight training center, air carrier flight training
facility, or individual flight instructor certificated under 14 CFR
part 61 (providers who are either individual FAA Certified Flight
Instructors (CFIs) or a group of associated-CFIs that provide training
services); part 141 (providers who are FAA certificated); part 142
(providers who are training centers certificated by FAA); and parts 121
and 135 (providers who are U.S. air carriers and U.S. aircraft
operators and conduct in-house training for their businesses). As
required to comply with applicable Federal Equal Employment Opportunity
laws, U.S. operators providing in-house training for its employees must
conduct training and report threat assessments in a manner that is
consistent with these laws and free from discrimination.
<bullet> Similar persons certificated by foreign aviation
authorities recognized by the FAA, who provide flight training services
in the United States.
<bullet> Any lessor of aircraft or aircraft simulators for flight
training, if the entity or company leasing their equipment is not
covered by the previous two categories.
Through this final rule, TSA is revising the definition of flight
training providers to provide greater clarity and to ensure the
regulatory program aligns with the scope of the statute. The scope of
49 U.S.C. 44939 includes persons ``operating as a flight instructor,
pilot school, or aviation training center,'' which the IFR captured
under the general term ``flight school.'' Adopting the term ``flight
training provider'' clarifies the rule's broad applicability to the
flight training industry, consistent with 49 U.S.C. 44939.
2. Lessors of Flight Training Equipment
In response to comments received on the IFR in 2004 and in 2018,
and in response to a request from the ASAC, TSA is providing clarity
regarding which party to an aircraft or simulator lease agreement is
responsible for compliance with this part. In most lease situations,
the lessee of the simulator or other equipment is a certificated flight
training provider. In situations where the lessee of the equipment is
not registered with TSA as a flight training provider, however, the
lessor is considered the flight training provider for purposes of
assuming reporting and recordkeeping responsibilities. For example, a
foreign government may bring its own instructors and candidates to the
United States for flight training on leased equipment, but TSA cannot
require a foreign government to register as a flight training provider.
Through the definitions and the applicability stated in Sec. Sec.
1552.3 and 1552.5, TSA is clarifying that in similar cases, the company
owning the aircraft simulator must register as a flight training
provider and comply with the requirements in this rule.
3. Candidates
The requirements of this rule directly affect candidates for flight
training. As defined in Sec. 1552.3, a candidate is anyone applying
for flight training who is neither a U.S. citizen nor a foreign
military pilot endorsed by the DoD (DoD endorsee). Candidates must
establish an account on the FTSP Portal to apply for an STA, submit
biographic and biometric information, and pay their fee using <a href="http://Pay.gov">Pay.gov</a>.
After the candidate has completed the STA process and received a
Determination of Eligibility, they may share their Determination of
Eligibility with one or more flight training providers through the FTSP
Portal. Figure 1 in section II.F summarizes candidate requirements.

B. What must flight training providers do in order to comply?

Flight training providers must not provide flight training or
access to any flight training equipment to any

[[Page 35587]]

individual (a U.S. or non-U.S. Citizen) before first establishing
whether the individual is a candidate for flight training (a non-U.S.
Citizen required to complete an STA). Flight training providers must
notify TSA of all training events for candidates and must validate that
the candidate has a current Determination of Eligibility before
providing training. All flight training providers also must designate a
Security Coordinator, provide security awareness training to their
employees, and maintain records to demonstrate compliance with this
part. Figure 2 in section II.F summarizes the requirements. Subsections
1 through 7 below describe these requirements in greater detail.
1. Determine Whether an Individual Is a Candidate for Flight Training
The FTSP, consistent with 49 U.S.C. 44939, imposes vetting
requirements on individuals who are non-U.S. citizens or who have not
been endorsed by the DoD. The first step towards compliance is
determining whether an individual seeking training is a candidate
required to comply with this part, i.e., not a U.S. citizen, not a U.S.
national, and not a DoD endorsee, and not otherwise exempt.
a. Verify Whether an Individual Is a U.S. Citizen or U.S. National
(Sec. 1552.7(a)(1))
U.S. citizens and U.S. nationals are exempt from the requirement to
undergo an STA, but the flight training provider must verify an
individual's U.S. citizenship or U.S. nationality by checking official
documents presented by the individual. While the final rule retains the
IFR's verification requirements, TSA is removing the IFR's list of
specific documents that are acceptable to establish U.S. citizenship,
U.S. nationality, foreign nationality, or presence in the United
States.
TSA will maintain a list of common official documents suitable to
identify U.S. citizens and U.S. nationals on the FTSP Portal, and will
update the list as any relevant laws or national policies change. As of
the publication date for this final rule, any of the identity documents
listed in the first column of table 2 can be used to establish U.S.
citizenship and nationality.\46\ If a U.S. citizen or U.S. national
does not have one of these documents, the individual must provide two
qualifying documents: one document from List A and one document from
List B.
---------------------------------------------------------------------------

\46\ The documents listed in table 2 are consistent with TSA's
requirements for validating U.S. citizenship or nationality for all
vetting programs. See <a href="https://www.tsa.gov/sites/default/files/twic-and-hazmat-endorsement-threat-assessment-program.pdf">https://www.tsa.gov/sites/default/files/twic-and-hazmat-endorsement-threat-assessment-program.pdf</a>. TSA's list is
aligned with similar lists maintained by U.S. immigration
authorities, and will be revised as their lists change. See also
discussion in section II.D.1. Please note that each TSA program may
have unique requirements.

Table 2--Two Options for Documents Validating U.S. Citizenship and
Nationality
------------------------------------------------------------------------
Option 2: provide 1 document from List A AND
Option 1: provide one of 1 document from List B
the following documents ---------------------------------------------
establishing identity and List B--Valid
U.S. citizenship List A--valid proof of photo
U.S. citizenship identification
------------------------------------------------------------------------
<bullet> Unexpired U.S. <bullet> U.S. Birth <bullet>
Passport (book or card). Certificate. Unexpired
<bullet> Unexpired <bullet> U.S. Territory driver's
Enhanced Tribal Card. Birth Certificate. license issued
<bullet> Unexpired Free <bullet> U.S. Certificate by a State or
and Secure Trade Card of Citizenship (N-560 or outlying
(designates U.S. N-561). possession of
citizenship if indicated <bullet> U.S. Certificate the United
on the document). of Naturalization (N-550 States.
or N-570). <bullet>
Unexpired
temporary
driver's
license plus
expired
driver's
license
(constitutes
one document).
<bullet> Unexpired NEXUS <bullet> U.S. Citizen <bullet>
Card (designates U.S. Identification Card (I- Unexpired photo
citizenship if indicated 179 or I-197). ID card issued
on the document). <bullet> Consular Report by the Federal
<bullet> Unexpired Secure of Birth Abroad (FS-240) Government or
Electronic Network for <bullet> Certification of by a State or
Travelers Rapid Report of Birth Abroad outlying
Inspection (SENTRI) Card (DS-1350 or FS-545). possession of
(designates U.S. <bullet> Expired U.S. the United
citizenship if indicated passport (book or card) States that
on the document). within 12 months of includes a
<bullet> Unexpired Global expiration if one or more Federal or
Entry Card (designates of the documents in List State agency
U.S. citizenship if B is also presented. seal or logo
indicated on the (such as a
document). State
<bullet> Unexpired U.S. university ID)
Enhanced Driver's License (permits, such
or Unexpired Enhanced as a gun
Identification Card permit, are not
(designates U.S. considered
citizenship if indicated valid identity
on the document). documents).
<bullet>
Unexpired U.S.
military ID
card.
<bullet>
Unexpired U.S.
retired
military ID
card.
<bullet>
Unexpired U.S.
military
dependent's
card.
<bullet> Native
American tribal
document with
photo.
<bullet>
Unexpired DHS/
TSA TWIC
Credential.
<bullet>
Unexpired
Merchant
Mariner
Credential.
<bullet> Expired
U.S. passport
within 12
months of
expiration if
one or more of
the documents
in List A is
also presented.
------------------------------------------------------------------------

b. Verify Status of Foreign Military Pilots Endorsed by the DoD (Sec.
1552.7(a)(2))
Foreign military pilots endorsed by the DoD are exempt from the
requirement to undergo an STA, as provided in 49 U.S.C. 44939(f), but
the flight training provider must verify the status of each pilot to
ensure that the endorsee is exempt from TSA's STA requirements. The
final rule requires use of the FTSP portal to confirm an endorsee's
status, codifying a previous policy decision from 2012 that eliminated
a paper-based DoD endorsement verification process. Providers must use
the FTSP Portal by matching the endorsee's identification to an
official endorsement provided to TSA electronically by the DoD
attach[eacute].\47\ ASAC also recommended in 2016 that TSA update the
regulation to confirm the mandatory use of the FTSP portal to verify
endorsee status.
---------------------------------------------------------------------------

\47\ Foreign military pilots endorsed by the DoD are registered
under the U.S. International Military Education and Training
program. The DoD attach[eacute] coordination office uses the FTSP
Portal to nominate DoD endorsees and to manage DoD attach[eacute]
account holders' access to the portal. See Defense Security
Cooperation Agency IMET website at <a href="https://www.dsca.mil/programs/international-military-education-training-imet">https://www.dsca.mil/programs/international-military-education-training-imet</a>.
---------------------------------------------------------------------------

The FTSP portal also serves as the records repository for DoD
endorsee letters provided by the attach[eacute]. To further ensure
compliance, providers must retain proof that they verified
identification documents against the documents in the DoD endorsement.
Providers may maintain either separate electronic or paper records to

[[Page 35588]]

demonstrate compliance, or may use the portal to store records when
this capability becomes available. Section II.B.7 and II.E describe
recordkeeping and the FTSP Portal.
c. Determine Whether an Individual Providing ``Side Seat'' Support Is a
Candidate (Sec. 1552.3)
In most cases, non-U.S. citizens who are not endorsed by the DoD
are considered candidates who must comply with this regulation. TSA has
made a limited exception for certificated individuals who provide
``side-seat support'' to other candidates. ``Side-seat support'' is an
aviation industry term that refers to a second pilot that is required
for some training events. When a second pilot is required, the
candidate or their sponsor (generally their employer) hires an
individual with appropriate skill and experience to provide side-seat
support for the candidate or student being trained.
Under a limited exception to the definition of ``candidate'' in
Sec. 1552.3, the flight training provider does not need to notify TSA
of any training events involving a non-U.S. citizen providing side-seat
support if the individual providing the support holds a type rating for
the aircraft in which the training occurs, or otherwise holds the
piloting certificate necessary to operate the aircraft in which the
instruction occurs. TSA is providing this limited exception because
these individuals already possess the piloting skills being taught, and
because these individuals are already vetted by TSA as candidates under
this program when they seek recurrent training to retain their FAA
rating or certificate under 6 U.S.C. 469(b).
As with other individuals seeking flight training, the flight
training provider must determine the individual's U.S. citizenship
status. If the individual providing side-seat support is a non-U.S.
citizen, the flight training provider must either determine that the
individual providing side-seat support holds a type rating for the
specific aircraft, or must ensure the individual undergoes an STA and
receives a Determination of Eligibility.
2. Determine Whether the Candidate Is Required To Be Vetted Before
Receiving Flight Training
Having established that the individual is a candidate (i.e., the
individual is a non-U.S. citizen, is not a DoD endorsee, and is not
providing side-seat support under the limited exemption provided
above), the flight training provider must determine whether the
regulation applies to the training the candidate seeks.
a. Activities Considered Flight Training Events (Sec. 1552.3)
The following flight training events are subject to the rule's
requirements:
<bullet> Initial pilot certification (whether private,
recreational, or a sport pilot certificate), which provides a pilot
with basic piloting skills.
<bullet> Instrument rating, which enhances a pilot's abilities to
pilot an aircraft in bad weather or at night, and enables a pilot to
better understand the instruments and physiological experiences of
flying without reference to visual cues outside the aircraft.
<bullet> Multi-engine rating, which provides a pilot with the skill
to operate more complex, faster aircraft.
<bullet> Type rating, which is a specific certification a pilot
obtains to operate a certain type of aircraft, because this training is
required beyond the initial, multi-engine, and instrument
certification.
<bullet> Recurrent training for type ratings, which is required to
maintain or renew a type rating already held by a pilot.
The flight training events subject to the rule's requirements align
with the clarification provided in 2004, when TSA exempted training to
operate ultralight aircraft, gliders, sail planes, and lighter-than-air
aircraft from the requirements of the IFR. These types of aircraft
present a minimal threat, and the skills needed to operate them do not
translate easily to the skills needed to operate rotary or fixed-wing
piloted aircraft. TSA also has determined that training related to
operation of unmanned aerial systems does not fall within the
requirements of the final rule for the same reasons. This determination
is consistent with the statutory requirements, which limit training
events to those that occur in an aircraft or simulator, and do not
apply to ground training events.\48\
---------------------------------------------------------------------------

\48\ See 49 U.S.C. 44939(e), which defines the term ``training''
as ``training received from an instructor in an aircraft or aircraft
simulator and does not include recurrent training, ground training,
or demonstration flights for marketing purposes.'' Given this
definition, TSA has concluded that the statute does not apply to
ground-based courses focused on remote-piloted aircraft incapable of
carrying people.
---------------------------------------------------------------------------

b. Activities Considered Recurrent Training (Sec. 1552.3)
As part of this rulemaking, TSA is modifying the definition of
``recurrent training'' to apply to those flight training events that
pilots need to maintain or renew their type ratings. The requirement
specifically applies to pilots certificated (a) under 14 CFR part 61;
subpart K of part 91; or parts 121, 125, or 135; or (b) by a foreign
entity recognized by a Federal agency of the United States. A candidate
may only register for recurrent training if their FTSP account record
includes an airman certificate showing they are currently certificated
for that aircraft. The modified definition also excludes facets of
training that impart new knowledge or demonstrate the pilot's ability
to gain or maintain a rating.
This modification to the definition of recurrent training ensures
the regulation aligns with clarifications provided by TSA after
publication of the IFR. For example, in October 2004, TSA clarified
that recurrent training ``[does] not include any flight review,
proficiency check, or other check whose purpose is to review rules,
maneuvers, or procedures, or to demonstrate a pilot's existing
skills,'' and that flight checks ``do not constitute either flight
training or recurrent training . . . because, in practice, these checks
are mainly used for pilots to demonstrate their skills to an
instructor, rather than to gain new skills.'' \49\ TSA also released an
interpretation listing activities that are not described as recurrent
training by the FAA and are generally considered to be checks or tests
that ``do not affect the validity of the certificate(s) and/or the
qualifications of a type rating.'' \50\ As stated above, and discussed
more fully in section III, all previously issued clarifications and
interpretations are replaced by this final rule.
---------------------------------------------------------------------------

\49\ See Interpretation of Certain Definitions and Exemptions
from Certain Requirements Contained in 49 CFR part 1552, Oct. 19,
2004, Docket No. TSA-2004-19147-0226 available at <a href="https://www.regulations.gov/document?D=TSA-2004-19147-0226">https://www.regulations.gov/document?D=TSA-2004-19147-0226</a>.
\50\ TSA Interpretation of ``Recurrent Training'' and Changes to
the Security Threat Assessment Process for Recurrent Training,
September 13, 2010, available at <a href="http://fts.tsa.dhs.gov/static-content/ftsp_cat4_10_2010.pdf">fts.tsa.dhs.gov/static-content/ftsp_cat4_10_2010.pdf</a>.
---------------------------------------------------------------------------

c. Activities That Do Not Require Notification
Consistent with a recommendation from ASAC, table 3 provides a
current list of flight training activities that do not require
notification. This list replaces all information previously issued by
TSA regarding training activities that do not require notification. If
a flight training provider inadvertently notifies TSA of a non-

[[Page 35589]]

required event, the provider will need to close out that event.

Table 3--Training Activities That Do Not Require Notification
------------------------------------------------------------------------
Activity References and guidance
------------------------------------------------------------------------
Technology
------------------------------------------------------------------------
Heads Up Display Simulator <bullet> Flight Simulation
Qualification. Training Device (FSTD)
Guidance Bulletin 03-02.
<bullet> 14 CFR part 60, Flight
Simulation Training Device
Initial and Continuing
Qualification and Use.
Enhanced Flight Vision System FSTD <bullet> FSTD Guidance Bulletin
Qualification. 03-03.
<bullet> 14 CFR 61.66, Flight
Simulation Training Device
Initial and Continuing
Qualification and Use.
Category II/III........................ <bullet> 14 CFR 61.67, Category
II Pilot Authorization
Requirements.
<bullet> 14 CFR 61.68, Category
III Pilot Authorization
Requirements.
Required Navigation Performance, <bullet> FAA Advisory Circular
Authorization Required. (AC) 90-105A.
<bullet> AC 90-101A Change 1.
------------------------------------------------------------------------
Air carrier qualifications
------------------------------------------------------------------------
Line Oriented Flight Training [also <bullet> FAA Advisory Circular
called Line Operational Simulation (AC) 120-51E, Crew Resource
(LOS)]. Management Training.
Operator Specific...................... <bullet> 14 CFR 121.441,
Proficiency Checks.
<bullet> 14 CFR 135.301,
Crewmember: Tests and checks,
grace provisions; training to
accepted standards.
Differences Training................... <bullet> Flight Standards
Information Management System
(FAA Handbook) Volume 3.
<bullet> General Technical
Administration; Chapter 19:
Training Programs and Airman
Qualifications.
<bullet> Section 9, Safety
Assurance System: Differences
Training-All Training
Categories.
Rejected Takeoff Go/No-Go.............. <bullet> FAA AC 120-62, Takeoff
Safety Training Aid.
Commercial Operator Training........... <bullet> 14 CFR 135.297, Pilot
in command: Instrument
proficiency check
requirements.
Non-U.S. Air Carrier Proficiency Checks <bullet> FAA Handbook; Volume
<bullet> Proficiency Check............. 12, International Aviation.
<bullet> License Proficiency Check..... <bullet> Chapter 2: Foreign Air
<bullet> Operator Proficiency Check.... Carriers Operating to the
United States and Foreign
Operators of U.S.-Registered
Aircraft Engaged in Common
Carriage Outside the United
States.
<bullet> Section 3, Part 129,
Part A: Operations
Specifications.
Extended Operations (ETOPS)............ <bullet> AC 120-42B, (ETOPS and
Polar Operations).
Polar Operations. <bullet> 14 CFR 121.7,
Definitions.
<bullet> 14 CFR 121.162.
<bullet> AC 135-42, Extended
Operations (ETOPS) and
Operations in the North Polar
Area.
<bullet> 14 CFR 135.364,
Maximum flying time outside
the United States.
Right Seat Training.................... <bullet> Dual qualification for
captain to be able to fly from
the right seat station (does
not include training that will
lead to a new type rating for
the individual in the right
seat (example: a pilot who is
qualified on both the Boeing
757 and the Boeing 767 may
request a related aircraft
deviation in accordance with
14 CFR 121.439(f)).
------------------------------------------------------------------------
General proficiency checks
------------------------------------------------------------------------
Flight Review and Instrument Currency, <bullet> 14 CFR 61.56, Flight
Helicopter. Review (for aircraft <12,500
lbs.).
<bullet> 14 CFR
61.57(a),(b),(c), and (d),
Recent Flight Experience:
Pilot in command.
Instrument Proficiency Checks.......... <bullet> 14 CFR 61.57(d),
Recent Flight Experience:
Pilot in command.
Landing Currency....................... <bullet> 14 CFR 61.57, Recent
Flight Experience: Pilot in
command.
Conversion............................. <bullet> AC 61-143, Conversion
Process for Pilot Certificates
in Accordance with the
Technical Implementation
Procedures--Licensing as Part
of the Bilateral Aviation
Safety Agreement Between the
FAA and the European Union
Aviation Safety Agency.
------------------------------------------------------------------------
Flight training provider
------------------------------------------------------------------------
Examiner Training...................... <bullet> 14 CFR 183.23, Pilot
Examiners.
Training Center Instructor Training and <bullet> 14 CFR 42.53, Training
Testing (includes instructor serving Center Instructor Training and
as trainee). Testing Requirements.
------------------------------------------------------------------------
Other safety activities
------------------------------------------------------------------------
Special Airport Qualifications......... <bullet> 14 CFR 121.445, Pilot
in Command Airport
Qualification: Special Areas
and Airports.

[[Page 35590]]

Upset Recover Training................. <bullet> FAA AC 120-111, Upset
Prevention and Recovery
Training--with Change.
High Altitude Training................. <bullet> 14 CFR 61.31(g), Type
rating requirements,
additional training, and
authorization requirements.
------------------------------------------------------------------------

Flight training providers must notify TSA about any recurrent
flight training events planned for a candidate that do not fall under
the exempted events listed in table 3. TSA will publish any updates to
this list of training events that do not require notification under
Sec. 1552.51 on the FTSP Portal.
3. Notify TSA of Flight Training Events for Candidates (Sec. 1552.51)
Consistent with the requirements in 49 U.S.C. 44939, flight
training providers are required to notify TSA of all proposed and
actual flight training events for candidates. Subpart C lays out flight
training event notification requirements for flight training providers.
The final rule clarifies and consolidates requirements for flight
training providers regarding training event management and confirms
TSA's present practice of requiring all notifications to occur through
the FTSP portal. There are no other changes to the requirements in this
subpart.
The final rule permits a flight training provider to schedule a
flight training event or events up to the expiration of a candidate's
Determination of Eligibility, but the final rule also continues the
IFR's requirement for flight training providers to verify a candidate's
Determination of Eligibility for each flight training event. While a
new STA may only be required once every 5 years, this notification is
necessary because TSA may revoke a candidate's Determination of
Eligibility at any time within the 5-year window that an STA may
otherwise be valid. TSA does not inform flight training providers of a
change in a candidate's Determination of Eligibility except in response
to a notification that the candidate is currently applying for or
involved in a flight training event. A provider is not permitted to
initiate a new flight training event notification for a candidate whose
Determination of Eligibility has expired.
a. Information To Be Included in Notification of a Flight Training
Event (Sec. 1552.51(a))
In keeping with similar requirements under Sec. 1552(a)(2) of the
IFR, the flight training provider must submit the following information
and supporting documentation to TSA through the FTSP Portal for each
notification of a candidate flight training event:
<bullet> The candidate's name.
<bullet> The rating that the candidate could receive, maintain, or
revitalize if the candidate completes the training.
<bullet> The location or locations, domestic or international,
where training is to occur.
<bullet> The estimated start and end dates of training.
To ensure Determinations of Eligibility can be made before the
scheduled training, TSA recommends that flight training providers
notify TSA no less than 30 days before the estimated start of the
flight training event, even for a candidate who may be eligible for
expedited processing. Upon completion of the training event, the
provider must update the FTSP Portal with the training event's actual
start and end dates, and indicate whether the candidate concluded,
cancelled, failed to complete, or abandoned the training.
TSA requires this specific information and documentation to
properly ensure compliance with the requirements of 49 U.S.C. 44939,
and to properly determine whether any candidate may be a risk to
aviation or national security. Knowledge of the candidate, the training
location, the training dates, and the type of training to be received
is essential to assessing risk. The statute does not refer to type
ratings, but the flight training industry tends to market and deliver
training by piloting skill and by aircraft type, not by aircraft
weight. Generally, crew members of aircraft weighing 12,500 pounds or
less are not required to have type ratings.
Flight training providers operating with multiple instructors as an
air carrier, charter operator, pilot school, training center, or other
corporate entity certificated under 14 CFR parts 61, 121, 135, 141, or
142 respectively, do not need to submit multiple flight training event
notifications when multiple instructors within its operation
participate in the training of one candidate during that candidate's
flight training event. However, multiple individual flight instructors
with certificates provided under 14 CFR part 61 who operate as a flying
group or club that is not separately certificated by the FAA must list
all the CFIs operating at its establishment as part of its registration
for an FTSP Portal account.
b. Candidate Photograph (Sec. 1552.51(d))
The flight training provider must take a photograph of the
candidate upon the candidate's arrival for each training event. The
provider need only take one photo per day. In the case of a multi-day
training event, the provider need only submit one photo for the event,
not one per day. The provider may take the photograph either at the
beginning of ground training or, if the candidate is not involved in
any ground training at the provider's training location, when the
candidate begins training on the aircraft or aircraft simulator. The
provider must upload the photograph to the FTSP Portal no later than 5
business days after the day the candidate arrived for training. A
provider may not re-use a previous candidate photograph for a later
training event.
When this program was established by DOJ, flight training providers
were encouraged, but not required, to maintain photographs of all
candidates. The 2004 IFR made the photographs mandatory because
submission of a candidate photograph, along with other identification
documents (including a valid passport), offers assurance that the
candidate is the person described in the identification and immigration
documents submitted to TSA. Flight training providers play a critical
role in determining whether the person before them is the same person
featured in the identity and immigration documents upon which TSA
relies for its STAs, and the required photograph ensures that providers
make a reasonable effort to confirm a candidate's identity.
c. Notification of an Update or Cancellation (Sec. 1552.51(g))
The flight training provider must update the following information
for each candidate flight training event:
<bullet> Actual start and end dates;
<bullet> Actual training location(s); and
<bullet> Notification whether training was completed or not
completed, and the reason(s) why it was not completed.
When a training event is not completed, the provider must submit a
brief description of why the training

[[Page 35591]]

was not completed, e.g., cancellation by the provider or the candidate,
failure of the candidate to meet the required standard, or abandonment
of training by the candidate.
d. Expedited Processing (Sec. 1552.51(f))
A candidate may be eligible for expedited processing of flight
training event notification(s), under 49 U.S.C. 44939(d), if more than
5 business days have elapsed since TSA acknowledged receipt of the
event notification and the candidate meets one or more of the following
criteria:
<bullet> Holds an FAA airman certificate and has provided proof of
their FAA certification and at least one type rating;
<bullet> Holds an airman certification from a foreign entity that
is recognized by an agency of the United States and has provided proof
of their airman certificate and at least one type rating;
<bullet> Is employed by an aircraft operator regulated under 49 CFR
part 1544 or foreign air carrier regulated under 49 CFR part 1546 that
has a TSA-approved or accepted security program and has provided proof
of employment;
<bullet> Is an individual who has unescorted access to a secured
area of an airport regulated by TSA under 49 CFR part 1542 with a TSA-
approved security program under this chapter and has provided proof of
this unexpired credential; or
<bullet> Is a lawful permanent resident, and has provided proof of
that status (see section II.B.5.g for more discussion on this issue).
Section 1552.51(f) of the final rule requires candidates to provide
proof of eligibility when they apply for expedited processing. Upon
receipt of a complete candidate application that includes appropriate
documentation of eligibility for expedited processing, TSA will send an
email notification to the candidate's flight training provider that the
candidate is eligible for expedited processing. The 5-day waiting
period for candidates eligible for expedited processing applies to the
initial application for an STA, and to subsequent notifications of
flight training events.
4. Deny Flight Training to Candidates Determined To Be a Security
Threat and Notify TSA if They Become Aware of a Threat (Sec. Sec.
1552.3, 1552.7(b), (c), and (d), and 1552.31(e))
If TSA determines that a candidate presents a threat to aviation or
national security, TSA notifies both the candidate and the flight
training provider that the candidate has been issued a Determination of
Ineligibility and may not participate in flight training. If TSA
notifies the provider that the candidate's preliminary Determination of
Eligibility has been revoked or suspended, the flight training provider
must immediately terminate or cancel the candidate's flight training
event. The provider must acknowledge through the FTSP Portal the
receipt of all TSA communications regarding a candidate's
ineligibility, disqualification, or denial of flight training.
Flight training providers conduct security awareness training
pursuant to the IFR, which includes training in the general
requirements for eligibility under the FTSP program, and a general
awareness of threats to aviation and national security deriving from
flight training. If a flight training provider believes that a
candidate is no longer eligible to receive flight training, TSA
encourages the provider to notify TSA and their local FBI office, as
such reporting is consistent with the training requirements of 49
U.S.C. 44939(i) and the requirements of Sec. 1552.9 and as described
in section II.B.5. The provider is encouraged to notify TSA of any new
alleged disqualifying criminal offenses, as identified under this
chapter, or of any changes to an individual's permission to remain in
the United States that may affect a candidate's Determination of
Eligibility.
5. Designate a Security Coordinator (Sec. 1552.9)
TSA is committed to enhancing information sharing with all of our
industry stakeholders and partners. The final rule aligns the FTSP with
other TSA regulations by requiring that all flight training providers
designate a Security Coordinator.\51\ In keeping with the requirements
of the statutes authorizing the FTSP program, a Security Coordinator is
necessary to ensure all flight training providers ``conduct a security
awareness program for flight school employees to increase their
awareness of suspicious circumstances and activities of individuals
enrolling in or attending flight school.'' \52\ Security Coordinators
are a vital part of transportation security, providing TSA and other
government agencies with an identified point of contact with access to
company leadership and knowledge of the flight training provider's
operations, in the event it is necessary to convey extremely time-
sensitive information about threats or security procedures to a
provider, particularly in situations requiring frequent information
updates. The Security Coordinator provides TSA with a designated
contact in a position to understand security problems; immediately
raise issues with, or transmit information to, corporate or system
leadership; and recognize when emergency response action is
appropriate.
---------------------------------------------------------------------------

\51\ See 49 CFR 1542.3 (airports); 1544.233 (aircraft
operators); 1548.13 (indirect air carriers); 1549.107 (certified
cargo screening facilities); and 1570.201 (surface transportation).
\52\ 44 U.S.C. 44939(i).
---------------------------------------------------------------------------

This final rule requires the Security Coordinator to be accessible
to TSA 24 hours per day, 7 days per week, enabling TSA to contact any
flight training provider quickly if TSA or another Federal agency
should identify a security threat. TSA may contact Security
Coordinators by email or telephone, or in person if electronic
communications were not promptly acknowledged. TSA recommends that the
flight training provider designate at least one alternate for the
Security Coordinator, if staffing permits, to ensure the required
accessibility is maintained. If the flight training provider designates
any alternates, the provider must submit to TSA the same information
for the alternates as for the primary Security Coordinator.
This requirement applies to all flight training providers,
including those who do not provide flight training to non-U.S.
citizens. This applicability reflects that any flight training provider
is in a position to identify critical threat information that needs to
be provided to the FBI and TSA related to aviation or other national
security concerns. Equally important, TSA may need to provide flight
training providers with information about an emerging or imminent
threat.
As required by Sec. 1552.9, the Security Coordinator acts as a
single point of contact and facilitates interactions between TSA and
the flight training provider. The final rule does not require the
Security Coordinator or alternate(s) to be a dedicated position staffed
by an individual who has no other primary or additional duties, i.e.,
the Security Coordinator may be an existing employee and may perform
other duties. For example, if a CFI is a one-person flight training
operation, the CFI can be the Security Coordinator. A larger flight
training provider operation may designate a Security Coordinator and
alternate Security Coordinators, as necessary, to maintain the required
level of availability. The final rule does not require the Security
Coordinator to be certificated by the FAA. For example, a business
owner or office manager may act as the Security Coordinator. A Security
Coordinator may also be the administrator of the provider's FTSP Portal
account.

[[Page 35592]]

The Security Coordinator's responsibilities include coordinating
with law enforcement and emergency response authorities as needed.
Although the rule encourages flight training providers to notify TSA of
security incidents, if there is an immediate threat, the first priority
is to notify and work directly with first responders, such as the FBI
or other appropriate authority, as soon as a provider becomes aware of
suspected criminal or terroristic concerns, or other suspicious
behavior. After notifying the FBI or other Federal, State, Tribal, or
local law enforcement agencies, as appropriate, TSA encourages the
provider's Security Coordinator to notify TSA.
Threats to aviation security continuously evolve, and incidents may
occur. For this reason, the flight training provider's Security
Coordinator should actively review TSA updates and security advisories
and ensure the provider incorporates relevant new information into
their security awareness training.
Flight training providers must designate a Security Coordinator no
later than 6 months after the publication date of this final rule. The
provider must submit the following information for the Security
Coordinator and any designated alternate(s): name(s), title(s),
telephone number(s), and email address(es). Flight training providers
must keep this contact information on Security Coordinators current,
ensuring that TSA is notified when a Security Coordinator leaves the
flight training provider's employment and a new coordinator is
designated. Flight training providers must provide any change in this
information to TSA within 7 days of the change taking effect. The
information collection burden associated with providing this
information to TSA is the primary cost of this additional requirement.
The burdens imposed on flight training providers to designate a
Security Coordinator are minimal, as most providers (including all
individual instructors) are likely to designate the same person who
already appears as the designated point of contact on the provider's
FTSP profile with TSA. All burdens associated with the designation of a
Security Coordinator are consistent with the requirements to undergo an
STA. When TSA reopened the comment period for the IFR in 2018, the
agency sought comment on whether flight training providers and their
employees should be required to undergo an STA. 83 FR 23239. Many
commenters were in favor of imposing such a requirement. In order to
maximize the regulatory relief of the final rule, however, TSA elected
to not impose a new requirement for STAs, as the less-burdensome
requirement to designate a Security Coordinator also provides a
meaningful security improvement.
6. Provide Security Awareness Training to Employees (Sec. 1552.13)
All ``flight training provider employees,'' as defined in Sec.
1552.3, are also positioned to identify potential threats to security,
including information they may become aware of while providing flight
training, administering tests, or processing verification documents.
TSA is required by 49 U.S.C. 44939(i) to ensure that all flight
training providers conduct security awareness training programs that
provide employees the awareness and tools necessary to identify
individuals who may have malicious intent.
The rule requires flight training providers to provide initial and
refresher security awareness training to their employees. As with the
Security Coordinator requirements in Sec. 1552.9, these requirements
apply to all flight training providers, not just those who train
candidates. Flight training providers registered with TSA and their
covered employees must complete their initial security awareness
training within 60 days of being hired. Thereafter, providers and their
employees must complete refresher training at least every 2 years.\53\
The final rule uses the term ``refresher training'' rather than the
IFR's term ``recurrent security awareness training'' to avoid confusion
with the recurrent training required to maintain an aircraft type
rating.
---------------------------------------------------------------------------

\53\ In practice, TSA allows a grace period of 30 days to allow
for scheduling flexibility. For example, an employee who completed
initial security awareness training on April 1, 2019, must complete
a refresher course no later than May 1, 2021. This provision in the
final rule allows flight training providers latitude to consolidate
security awareness training for their employees.
---------------------------------------------------------------------------

The security awareness training program must instruct flight
training provider employees on how to recognize suspicious
circumstances and suspicious activities that may be exhibited by
individuals enrolling in flight training, attending flight training, or
employed by flight training providers. The training must address each
of the elements identified in Sec. 1552.13 as applied to the unique
circumstances associated with their operations. Flight training
providers should supplement and update security awareness training as
TSA or other law enforcement or intelligence resources transmit new
threat information or any changes to requirements applicable to the
flight training provider, including changes to security measures for
airports, aircraft operators, or foreign air carriers applicable to the
flight training provider's operations.
The scope of the training requirements includes a new factor, in
Sec. 1552.13(b)(3)(iii), which recognizes the unique position of
flight training providers and their employees to identify a potential
threat to aviation security: non-U.S. citizens who are or have received
flight training from someone not participating in the FTSP, but
providing the type of training covered by this rule. This type of
information is a security concern that flight training providers are
encouraged to report to TSA under Sec. 1552.9. Flight instructors were
always in a position to detect such events, and the security awareness
training required by the statute and imposed under the IFR was intended
to encourage the reporting of such events. In the 19 years of the FTSP
program operating under TSA, many providers have come forward to allege
that another provider may be training a non-U.S. citizen who has not
been vetted by TSA, or that a U.S. citizen was not required to provide
documentation exempting the individual from an STA. Incorporating this
new factor only makes the training more explicit, and codifies existing
practice. In 2006, TSA granted an exemption from security awareness
training requirements for aircraft operators who conduct flight
training solely for their own employees, because TSA already required
aircraft operators to conduct similar training under 49 CFR parts 1544
or 1546. This final rule incorporates this exemption by allowing an
aircraft operator operating under a security program approved by TSA
under 49 CFR parts 1544 or 1546 to comply with the security awareness
training requirements through its programs under those parts, if all of
the following conditions and limitations are met:
<bullet> The aircraft operator must not offer or conduct flight
training to the public or to employees of other aircraft operators.
<bullet> The aircraft operator must maintain or continue to
maintain training records in accordance with the aircraft operator's
approved security program and must make those records available to TSA
and FAA inspectors upon request.
<bullet> An aircraft operator who implements this exemption must
not use the FTSP Portal to record security awareness training.

[[Page 35593]]

Although the requirements under Sec. 1552.13 also apply to those
persons who engage in lease agreements for flight training, the
security training requirements do not apply to their employees who
never come into contact with any candidates or records related to
compliance with the FTSP. In general, individuals who provide side-seat
support are not considered flight training provider employees and do
not need to complete security awareness training unless the flight
training provider employs them. For example, individuals who are
supplied by the candidate or student's sponsor in order to provide
side-seat support are not considered flight school employees.
The final rule also allows a provider to adopt and tailor industry-
developed online security awareness training programs to the provider's
needs as long as they cover the topics identified in the rule. In
addition, TSA publishes guidelines for a security awareness training
program in the document ``Security Guidelines for General Aviation
Airport Operators and Users.'' \54\
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\54\ A copy of these guidelines is available at <a href="https://www.tsa.gov/for-industry/general-aviation">https://www.tsa.gov/for-industry/general-aviation</a> under ``GA Security
Guidelines'' or by contacting <a href="/cdn-cgi/l/email-protection" class="__cf_email__" data-cfemail="195f4d4a4937517c7569596d6a78377d716a377e766f">[email&#160;protected]</a>.
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7. Maintain Records (Sec. 1552.15)
In accordance with Sec. 1552.15(a), flight training providers
required to comply with this rule must retain the following records for
at least 5 years from the date the record is created:
<bullet> Employee records regarding security awareness training.
Flight training providers must retain records for former employees for
at least 1 year after the employee has left their employment. As
provided in Sec. 1552.15 (b)(3), flight training provider employees or
former employees may request their security awareness training records
from their current or previous employer as evidence of previous or
current security awareness training. Providers must make those records
available to the employee or former employee upon request and should
provide the record(s) in a timely manner. Records may be provided in
hard copy or electronically.
<bullet> Candidate records demonstrating flight training
eligibility, as required in Sec. 1552.15(c).
<bullet> Records documenting the flight training provider's
verification of a student's U.S. citizenship, as required in Sec.
1552.15(c). Providers also may meet this requirement by placing a
statement in provider and student logbooks in accordance with Sec.
1552.15(c)(2).
<bullet> DoD endorsement records demonstrating that the flight
training provider has verified the endorsee's identity, as required in
Sec. 1552.7(a)(2).
<bullet> Provider and contractor records concerning leasing
agreements. Section 1552.15(d) clarifies requirements for flight
training providers and contractors to maintain records of their flight
training lease agreements. The flight training provider is responsible
for documenting leasing agreements used in flight training, unless that
provider cannot register with TSA, in which case, the lessor of the
simulator must register with TSA as a provider. Flight training
providers must demonstrate compliance with this requirement no later
than 6 months after the publication of this final rule.
To ensure compliance with this regulation, TSA may review a
provider's records, whether these records are stored on the FTSP Portal
or maintained physically or electronically by the provider (such as
documentation that a student is a U.S. citizen or otherwise not subject
to the vetting requirements before receiving flight training). Flight
training providers not in compliance with recordkeeping requirements
are subject to civil penalties. TSA publishes its Enforcement Sanction
Guidance Policy on its website at <a href="http://www.tsa.gov">www.tsa.gov</a>.
Providers are not required to maintain physical records if they
have their own electronic system for this purpose. TSA is, however,
also developing a recordkeeping capability associated with the FTSP
Portal to allow flight training providers the option to upload and
store their compliance records through their FTSP account. Providers
will be notified when this option becomes available. Section E provides
more information on the FTSP Portal.

C. What must a candidate do in order to comply with the rule and
receive flight training?

The final rule continues to require an STA and Determination of
Eligibility for all non-U.S. citizens, except DoD endorsees, who seek
either flight training in the United States or an FAA certification
abroad, as provided in Sec. 1552.31. Candidates must use the FTSP
Portal to apply for the STA and pay the appropriate fee. In performing
the STA, TSA assesses the candidate's biographic information, identity
documentation, and biometric information (fingerprints) against
terrorism risk, criminal history, and immigration datasets. Candidates
are responsible for keeping their FTSP Portal account information
current. Subsections 1 and 2 below describe the requirements in greater
detail.
1. Submit Information Sufficient for TSA To Conduct a Security Threat
Assessment (Sec. 1552.31)
Candidates must submit information to TSA sufficient for TSA to
conduct an STA. To reduce the burden to candidates, the final rule has
limited the information TSA collects to biographic elements identified
in table 4, which often aligns with the type of information the
candidate provides to obtain a U.S. visa.\55\ A candidate who does not
have a passport, such as an asylee or a refugee, must produce other
government-issued documentation, whether from their home country or
from the United States, to positively identify who they are.
Documentation must include an issue date and an expiration date (if
appropriate), such as on a U.S. driver's license or U.S. employment
authorization document. TSA collects gender information in coordination
and compliance with the U.S. DOJ. TSA no longer collects candidate
height, weight, eye color, or hair color. A candidate need not obtain
an immigrant or nonimmigrant document from the United States in order
to participate in training outside the United States, but a candidate
must present any immigrant or nonimmigrant documents previously issued
to the candidate by the United States, even if the candidate now seeks
training at a location outside the United States. Many candidates have
been to the United States before, and some applicants have previously
been denied a U.S. visa. TSA considers a candidate's prior interactions
with U.S. immigration agencies to be relevant information when
determining whether a candidate presents a risk to aviation or national
security. The information and documents listed in table 4 are for
illustrative purposes only, and may be subject to change. A complete
list of acceptable documents will be maintained at <a href="http://www.tsa.gov">www.tsa.gov</a>.
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\55\ See DOS Online Nonimmigrant Visa Application (DS-160) at
<a href="https://ceac.state.gov/genniv/">https://ceac.state.gov/genniv/</a>.

[[Page 35594]]

Table 4--Information Submitted by Candidates to TSA
------------------------------------------------------------------------

------------------------------------------------------------------------
Identification Information
------------------------------------------------------------------------
Name.............................. The candidate's official name as it
appears on their passport or other
acceptable documentation.
Any other name variations from the
candidate's passport (or other
acceptable document) name that
appear on other documents provided
by the candidate.
Any other aliases used that are
different from the documentation or
may not be obvious from documents
provided, such as:
<bullet> Birth name: the name as
it appears on the candidate's
birth certificate.
<bullet> Maiden or premarital
name: the name used prior to
marrying.
<bullet> Americanized name: name
that an individual may have
adopted as an Anglicization to
facilitate the spelling or
pronunciation by English
speakers.
<bullet> Legal name changes: legally
changed name or names used by the
individual one or more times in
their life.
<bullet> Previous legal names
even if no longer used.
<bullet> Nickname: a familiar
name used in lieu of the
person's official name, such as:
Rick for Richard, Betty for
Elizabeth, Fred for Fahad, Jenni
for Jennifer, etc.
Gender............................ Female/woman.
Male/man.
another or unspecified gender
identity.
Date(s) of birth.................. The date of birth listed on the
candidate's passport. If another
date is listed on any document
supplied, the candidate may be
required to provide an explanation.
Foreign Citizenship............... Citizenship information to include:
<bullet> Birth Country
<bullet> Foreign Naturalization
status, from the date of
naturalization to present.
<bullet> Whether dual or multi
citizenship (include any and all
citizenships held currently or
in the past).
<bullet> Historical data (any
citizenship(s) that has been
modified from a previous nation
state to a new nation state; for
example, a citizen from the
former Socialist Federal
Republic of Yugoslavia is now
from either Bosnia-Herzegovina,
Croatia, Macedonia, Montenegro,
Serbia, or Slovenia).
<bullet> Renunciation of
citizenship.
Social Security Number (if issued Social Security Number (if issued by
by the U.S. Government). the U.S. Government). Most
candidates will not have a social
security number and it is not
required. Providing a social
security number is voluntary and
may in certain circumstances
facilitate the completion of the
STA.
------------------------------------------------------------------------
Document images and information
------------------------------------------------------------------------
Passport information (if Passport number(s); Date issued/
applicable). expiration date; and Extension date
and image, if applicable.
Documents sufficient to One or more documents that may
demonstrate permission to remain include a Form I-94, U.S. lawful
in the United States during all permanent resident card, U.S.
proposed flight training events. employment authorization document,
refugee documentation, asylum
seeker documentation, parolee
documentation, or authorization
documents under Deferred Action for
Childhood Arrivals.
Documentation provided must include:
<bullet> Document number(s);
<bullet> Date issued and/or
expiration date (if any); and
<bullet> Extension date and image,
if applicable.
Note: The following documents do not
demonstrate an extension of
permission to remain in the United
States:
<bullet> Appointment confirmation
for biometric submission.
<bullet> Appointment confirmation
for interview.
<bullet> Electronic System for
Travel Authorization
documentation.
Airman certificate information.... All airman certificate information
and images, current or expired (if
available), that may demonstrate
their eligibility for training or
their eligibility for expedited
processing. Certificate information
must include all document
number(s), issuance date(s) and
rating(s).
Physical address information...... All residential addresses for the
past 5 years and indication whether
each address provided is current or
historical. Any gap in residence of
30 days or more must be explained.
The application also must include
any physical or postal addresses
that appear on the document images
provided.
Address information provided must
include the following:
<bullet> Start and end date(s)
for each address.
<bullet> Street address and
apartment or room number, if
applicable.
<bullet> City, state, province,
jurisdiction, and country.
<bullet> Zip code/postal code.
<bullet> Phone number(s).
A post office box is not acceptable
as a residential address and cannot
be used to cover a 30-day gap.
Email address information (TSA Email information must be unique to
requires every candidate to the individual and match the email
provide an email address; this associated with the candidate's
email address will be the primary account on the FTSP Portal. If a
means of communication between candidate's email information
TSA and the candidate). changes, it is the candidate's
responsibility to update that
information on the FTSP Portal to
ensure the candidate receives TSA
notifications.
Employment information............ The candidate must provide
information regarding their current
employment status. If currently
unemployed, candidates may select
``unemployed'' and need not fill
out employer information. TSA
requires the following information
in order to contact a candidate's
current employer to verify that
candidate's eligibility for
expedited processing:
<bullet> Occupation.
<bullet> Employer or company
name.

[[Page 35595]]

<bullet> Contact name (provide a
person's contact information who
can confirm occupation/employer,
usually a supervisor).
<bullet> Employer phone number
(if any).
<bullet> Employer email (if any).
<bullet> Employer website (if
any).
------------------------------------------------------------------------

TSA will initiate the STA after the agency receives all of the
information required under this section, as well as the candidate's
fingerprints and the fee. The Candidate Guide on the FTSP Portal
provides additional information on completing the STA application.
Sometimes an individual will convert an airman certificate from
another civil aviation authority to an FAA-certification. In general,
this conversion of an airman certificate is not subject to the
requirements under Sec. 1552.51. If, however, the individual
converting the FAA-certification wishes to pursue additional training
or recurrent training on that certificate, that individual may be a
candidate under this rule who must enroll with TSA and apply for an
STA.\56\
---------------------------------------------------------------------------

\56\ The FAA creates advisory circulars memorializing agreements
with other civil aviation authorities, generally concerning the
conversion process for pilot certificates. Conversion agreements
with other civil aviation authorities are managed by FAA's General
Aviation and Commercial Division, AFS 800. See <a href="https://www.faa.gov/about/office_org/headquarters_offices/avs/offices/afx/afs/afs800/">https://www.faa.gov/about/office_org/headquarters_offices/avs/offices/afx/afs/afs800/</a>.
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Consistent with current practice under the IFR, Sec. 1552.31(e)
provides procedures for candidates TSA identified as ineligible to
present additional information to correct their records if they believe
such information would materially affect TSA's decision. The IFR did
not provide redress procedures for candidates who are declared
ineligible by TSA, but TSA has always allowed candidates an opportunity
to correct their records. The procedures to correct the record are
described in Sec. 1552.31(e).
2. Pay Fee for the Security Threat Assessment
a. Fees (Sec. 1552.39)
The final rule requires a candidate to submit a fee the first time
that candidate requests an STA and with each STA renewal, as provided
in Sec. 1552.39. The fee is a consolidated fee that allows a candidate
to train as often as they wish over the 5-year period of their valid
Determination of Eligibility, without additional cost.
The candidate generally will pay one fee to cover the STA for all
training events up to 5 years. Table 7 provides the fees and amounts
required as of the publication date for this final rule. Candidates who
have completed an STA that TSA deems is comparable to the STA required
for FTSP candidates may be eligible for a reduced fee, collected to
cover the cost of confirming their comparable STA. See Sec. 1552.37.
As noted above, this change from an event-based STA to a time-based
STA provides significant cost-savings and addresses an ASAC
recommendation to reduce the frequency that a candidate must undergo an
STA. This change will result in time and cost savings for candidates.
Over the initial 18 years of the program, very few candidates paid for
only one or two STAs. Most candidates paid for 3 to 12 combined STAs
and training event notifications over a 5-year period, costing them a
combined total of $350 to $840.\57\
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\57\ This statement is based on an August 2019 TSA-analysis of
the latest 5-year window for 216 candidates who paid for an STA on
August 15, 2014. Based on this analysis, TSA determined that 20 of
the candidates paid less than $220 and 15 paid $840 or more.
---------------------------------------------------------------------------

Payments are submitted to TSA via <a href="http://Pay.gov">Pay.gov</a>, the U.S. Government's
electronic fee payment portal. The FTSP Portal provides all necessary
instructions and a link to <a href="http://Pay.gov">Pay.gov</a> for payment. Automated processing of
the STA is initiated as soon as the candidate pays the fee. TSA is not
authorized to refund fees once the STA is initiated because TSA incurs
the costs of vetting upon receiving verification from <a href="http://Pay.gov">Pay.gov</a> that a
fee was paid. Under Sec. 1552.5 of the IFR, TSA had allowed a refund
only when an individual submitted a fee in error, for example,
submitting a fee when one was not required.\58\ This provision was
intended to account for U.S. Citizens (who are not required to undergo
an STA) who submitted an application by mistake, or if a candidate
submitted multiple applications for the same training event. TSA
believes that the online enrollment process would identify and preclude
these types of mistakes before an individual paid any fee. Though
mistakes are unlikely, TSA will retain the limited refund provision
from the IFR.
---------------------------------------------------------------------------

\58\ See 69 FR at 56334.
---------------------------------------------------------------------------

The FTSP fee structure reflects current and estimated costs for
processing the candidate's application.\59\ The consolidated fee
includes the fee the FBI charges to process fingerprints, which TSA
collects and forwards to the FBI. If the FBI fee changes, TSA will
collect and transmit the revised fee to the FBI. TSA reviews fees for
this program every 2 years and will publish any changes with a notice
published in the Federal Register.
---------------------------------------------------------------------------

\59\ See fee study and RIA in the docket for this rulemaking for
more information on how the fees are developed.
---------------------------------------------------------------------------

b. Reduced Fee for Comparable STAs (Sec. 1552.37)
TSA may determine that another TSA-conducted STA or an STA
conducted by another governmental agency is comparable to the Level 3
STA required under this rule, as discussed further in section II.D. In
these cases, the candidate would not be required to undergo, and TSA
would not have to conduct, a duplicate STA in its entirety. The
candidate would pay only for the services TSA performs to verify the
STA and determine eligibility, resulting in a reduced fee. Note that
some STAs governed by other regulations may have unique restrictions,
requirements, or privileges. A candidate who receives a comparable STA
determination under this regulation is not entitled to additional
privileges beyond the original STA. TSA will review the comparable STA
of any candidate if new information indicates the candidate may pose or
poses a threat to aviation or aviation security.
If TSA confirms completion of a comparable STA under Sec. 1552.37,
TSA assesses a reduced STA fee.\60\ A candidate with a comparable STA
must still provide the biographic and biometric information required
under Sec. 1552.31. The following is the current list of comparable
STAs:
---------------------------------------------------------------------------

\60\ Id.
---------------------------------------------------------------------------

<bullet> TSA's PreCheck[supreg] program; \61\
---------------------------------------------------------------------------

\61\ See <a href="https://www.tsa.gov/precheck">https://www.tsa.gov/precheck</a>. See also 78 FR 72922
(Dec. 4, 2013).
---------------------------------------------------------------------------

<bullet> TSA's TWIC[supreg] program; \62\
---------------------------------------------------------------------------

\62\ See <a href="https://www.tsa.gov/for-industry/twic">https://www.tsa.gov/for-industry/twic</a>. See also 49 CFR
part 1572.
---------------------------------------------------------------------------

<bullet> TSA's HME program; \63\
---------------------------------------------------------------------------

\63\ See <a href="https://www.tsa.gov/for-industry/hazmat-endorsement">https://www.tsa.gov/for-industry/hazmat-endorsement</a>.
See also 49 CFR part 1572.

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[[Page 35596]]

<bullet> DHS Trusted Traveler programs including Global Entry,
SENTRI, and NEXUS.\64\
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\64\ See <a href="https://www.dhs.gov/trusted-traveler-programs">https://www.dhs.gov/trusted-traveler-programs</a>.
---------------------------------------------------------------------------

TSA considers each of the threat assessment programs listed above
to be a ``Level 3'' STA, which is discussed in detail below. For the
purposes of the FTSP, TSA will only consider a Level 3 STA to be a
comparable STA. TSA will publish any changes to the list of comparable
STAs on the FTSP Portal.

D. How does TSA determine whether a candidate is eligible for flight
training?

TSA determines a candidate's eligibility by conducting an STA,
which is designed to determine whether a candidate poses a threat to
transportation or national security. Individuals who are issued a
Determination of Eligibility following an STA may be granted access to
transportation infrastructure or assets, or may be granted other
privileges and credentials, including access to flight training. Both
the IFR and the final rule require an STA that consists of one or more
checks against immigration records, terrorist watchlists (known as an
``intelligence'' check), and criminal history records, as well as other
data sources. An STA with these checks is referred to as a ``Level 3
STA.''
1. Immigration Check (Sec. 1552.35)
The final rule specifies that all flight training students who are
not U.S. citizens, U.S. nationals, or foreign pilots endorsed by the
DoD must undergo an immigration check as part of the STA process. The
immigration check for a Level 3 STA verifies that the individual is
lawfully admitted for permanent residence; a refugee admitted under 8
U.S.C. 1157; granted asylum under 8 U.S.C. 1158; in lawful nonimmigrant
status; paroled into the United States under 8 U.S.C. 1182(d)(5); or
otherwise authorized to be in or be employed in the United States. A
candidate who is not authorized to be in the United States under one of
these categories is not eligible for flight training in the United
States. TSA also considers a candidate's history with U.S. immigration
services, such as violations of U.S. immigration laws or regulations,
to be a factor in determining a candidate's risk to aviation or
national security, regardless of where a candidate may seek flight
training.
TSA conducts an immigration check using CBP's ATS, which allows TSA
to query many different databases and systems that may include SAVE,
the Advanced Passenger Information System, ADIS, Consular Consolidated
Database, the Treasury Enforcement Communications System, used by CBP
officers at the border to assist with screening and determinations
regarding admissibility of arriving persons, and the Student and
Exchange Visitor Information System (SEVIS). Candidates who appear to
be ineligible following an immigration check for a Level 3 STA are
referred to an immigration authority or liaison to assist in
determining whether the candidate is eligible to participate in flight
training. TSA also compares the information a candidate presents with
their STA application to the information in the above databases. The
documents provided by the candidate help TSA adjudicators narrow mixed
results, de-conflict contradictory info, and save time during the
adjudication process. For instance, an applicant may have a document
that is more detailed than what is in the database.
TSA may suspend a Determination of Eligibility if immigration
authorities inform TSA that the candidate does not have permission to
remain in the United States. In this instance, TSA will advise the
provider to cease training the candidate, because a candidate that no
longer passes the immigration check for a Level 3 STA is considered by
TSA to be unlawfully present, and to be a risk to national security.
Unless otherwise directed by the U.S. Department of State (DOS), a
candidate's Determination of Eligibility will expire when their
passport or other document(s) establishing eligibility for flight
training expires, is revoked, or suspended, even if the Determination
of Eligibility was originally issued for a longer period of time. The
candidate may submit additional documents to correct or update their
record and possibly extend or restore their Determination of
Eligibility. Table 4 provides a list of relevant documents, and Sec.
1552.31(e) describes redress provisions.
TSA relies upon valid U.S. Government identity document(s) with
issue and expiration dates when conducting immigration checks. TSA is
not an immigration authority and relies on data and guidance from
immigration authorities, such as DOS, USCIS, ICE, and CBP, during TSA's
review of information, and when resolving any immigration-related
questions or concerns that arise.
2. Intelligence Check (Sec. 1552.31(c))
The intelligence check for a Level 3 STA reviews biographic
information, documents, and databases to confirm an individual's
identity, and searches government and non-government databases,
including terrorist watchlists, criminal wants and warrants, Interpol,
and other domestic and international sources, to determine whether an
individual may pose or poses a threat to transportation or national
security. TSA conducts the intelligence check ``recurrently'' so that
each time a watchlist changes, TSA again runs the vetted individuals
against the revised list. Thus, if a candidate is initially issued a
Determination of Eligibility, but is later placed on a watchlist, TSA
can quickly take appropriate action to minimize the threat. If TSA
determines that the candidate presents a threat to aviation or national
security, that individual is not eligible for flight training. Under
Sec. 1552.31(e), flight training candidates may request that TSA
reconsider an ineligibility determination only if the determination was
made on the basis of incorrect records. TSA provides each candidate
with a summary of the records upon which TSA based its decision, to the
extent feasible in light of national security and law enforcement
interests.
3. Criminal History Records Check (Sec. 1552.31(c))
The CHRC conducted under this rule is similar to the CHRC TSA
conducts for other Level 3 STAs such as the TSA PreCheck[supreg]
program (a DHS trusted traveler program), and the TWIC[supreg] and HME
programs under 49 CFR part 1572. TSA submits the biometrics
(fingerprints) collected for STAs that include a CHRC to the Automated
Biometrics Identification System (IDENT), which is operated by the DHS
Office of Biometric Identity Management. IDENT is the departmental
repository for biometrics collected by DHS agencies and provides
additional information for TSA to use as part of the vetting process.
4. Rap Back
The FTSP will use the FBI's Noncriminal Justice Rap Back service
\65\ for individuals required to undergo a CHRC. Rap Back allows TSA to
move from an event-based STA requirement to a time-based STA. TSA has
implemented Rap Back for other vetting programs. The Rap Back service
provides a continuous criminal vetting capability that enhances
security significantly by providing TSA with timely criminal history
information rather than finding it when the next STA is conducted.
---------------------------------------------------------------------------

\65\ For more information, see the FBI's Next Generation website
at <a href="https://www.fbi.gov/services/cjis/fingerprints-and-other-biometrics/ngi">https://www.fbi.gov/services/cjis/fingerprints-and-other-biometrics/ngi</a>.

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[[Page 35597]]

Rap Back enables TSA to receive new criminal history that occurs
after the initial submission of fingerprints. Without Rap Back, TSA
must submit new fingerprints and fees each time it seeks to obtain a
new CHRC on an individual. With Rap Back, TSA can determine that an
individual who initially passed the CHRC and received a Determination
of Eligibility has become ineligible due to a recent disqualifying
criminal offense. Implementation of Rap Back does not affect the type
or amount of information TSA must collect from each individual at
enrollment.

E. How do flight training providers and candidates provide the required
information to TSA?

1. Use the FTSP Portal To Submit Documents (Sec. 1552.17)
For nearly 2 decades, flight training providers and candidates have
used the FTSP Portal to manage STA applications and notify TSA of
flight training events. The final rule makes the use of the FTSP Portal
mandatory for candidates to submit STA applications, for flight
training providers to submit their flight training event notifications
to TSA, and for U.S. DoD attach[eacute]s to submit DoD endorsements.
The final rule also removes previously permitted procedures for faxing
documents. See Sec. 1552.17. Under the final rule, flight training
providers must use the FTSP Portal to submit all flight training event
notifications to TSA on behalf of candidates. TSA accepts no other
method to be notified of flight training events.
2. Use the FTSP Portal for Recordkeeping (Sec. 1552.15)
As previously described in section II.B.7, TSA will allow flight
training providers to store records required by Sec. 1552.15 on the
FTSP Portal, including records containing personally identifiable
information, to facilitate compliance with the regulation.
When this capability is made available, all flight training
providers will be able to use the FTSP Portal for recordkeeping
purposes. For example, a provider that does not train candidates may
use the FTSP Portal to maintain records of compliance with citizenship
verification requirements, security awareness training, etc. These
providers may, of course, continue to use their own recordkeeping
systems. TSA will encourage providers to take advantage of this
capability, as the maintenance of all required records in one place
facilitates audits and inspections for all parties. For example, many
recordkeeping violations of the requirements in this part resulted from
the dispersal of records across the enterprise, or from inconsistent
recordkeeping practices. Consolidating records on the FTSP Portal will
address these issues.
In addition, both Student and Exchange Visitor Program (SEVP)-
certified and non-SEVP-certified providers will be able to upload their
lease agreements to the FTSP Portal. Table 5 compares the required to
permissive use of the FTSP Portal for flight training providers.

Table 5--Comparison of Required and Optional Use of the FTSP Portal
------------------------------------------------------------------------
Use of FTSP Portal
Use of FTSP Portal required for the encouraged for the following
following purposes purposes
------------------------------------------------------------------------
<bullet> Designate a Security Coordinator. <bullet> Record compliance-
<bullet> Verify that a student, candidate, related activities in lieu
or DoD endorsee is eligible to of maintaining physical or
participate in flight training. electronic records onsite.
<bullet> Ensure each candidate holds a <bullet> Record employee
Determination of Eligibility. initial and biennial
<bullet> Notify TSA of all non-U.S. security awareness training
citizen flight training events. events.
<bullet> Notify TSA when a candidate <bullet> Document aircraft
appears to no longer be lawfully present simulator lease agreements.
or otherwise no longer permitted to <bullet> Record verification
remain in the United States, or has a of student, candidate, or
disqualifying criminal offense. DoD endorsee eligibility.
<bullet> Document each student and <bullet> Support TSA, FAA,
candidate presents valid ID at each DoD, and SEVP inspections
flight training event. and audits of compliance
<bullet> Upload photos of candidates and records.
DoD endorsees within 5 days from when
they arrive for training.
<bullet> Update FTSP Portal records
concerning candidate completion or non-
completion of training.
<bullet> Acknowledge receipt of TSA
notifications.
------------------------------------------------------------------------

The FTSP Portal also is available to other U.S. Government agencies
who may request access for the following purposes:
<bullet> FAA Airmen Certification Office and Flight Standards
personnel who confirm airman and flight training provider
certifications, facilitate the notification of disqualifying actions or
offenses, and support FAA inspections and audits of flight training
providers.
<bullet> DoD attach[eacute]s who initiate and distribute
endorsement notifications to specific flight training providers.
<bullet> DHS employees authorized to support inspections and audits
of flight training providers' facilities and records, facilitate the
sharing of candidate training activities, and determine a candidate's
status with Federal immigration authorities.
3. Use the FTSP Portal To Create and Access Accounts (Sec. 1552.17)
In order to comply with the regulation, candidates and flight
training providers must create their own accounts on the FTSP Portal
\66\ and submit all required information and documentation through
their FTSP Portal accounts. Each candidate uses the FTSP Portal to
create an account; enter biographic and biometric information; upload
digital copies of identity documents, visas, and other documents that
establish eligibility for FTSP; apply for an STA; access the link to
pay the fee through an account on <a href="http://Pay.gov">Pay.gov</a>; and associate their account
with their flight training provider or providers.
---------------------------------------------------------------------------

\66\ Currently accessible at <a href="https://www.fts.tsa.dhs.gov">https://www.fts.tsa.dhs.gov</a>.
---------------------------------------------------------------------------

Flight training providers covered by the final rule must establish
an account on the FTSP Portal and identify only one person as the
administrator for their FTSP Portal account. This person may be the
Security Coordinator or another employee. Each provider must identify
at least one FAA instruction certification to establish an online
provider account with TSA. Flight training provider accounts are
verified with FAA through certificate(s) granted under 14 CFR parts 61,
121, 135, 141, or 142. A provider may identify additional non-
administrator agents on their account if desired.

[[Page 35598]]

TSA may suspend any user's access to the FTSP Portal at any time.
The decision to suspend a user's FTSP Portal account or a user's access
to the FTSP Portal is within TSA's sole discretion, but TSA would not
do so without just cause. Examples of such causes include suspicion of
fraud, persistent noncompliance with one or more requirements of this
part, or reasonable suspicion that the account holder poses a threat to
aviation or national security. TSA assumes responsibility for the
security of any data uploaded to the FTSP Portal and will partner with
flight training providers in the retention and removal of records
according to National Archives and Records Administration (NARA) and
Privacy Act standards.\67\
---------------------------------------------------------------------------

\67\ Please see supra note 32.
---------------------------------------------------------------------------

4. Use the FTSP Portal To Access FTSP Guidance (Sec. 1552.17)
The FTSP Portal is the primary source for obtaining information
about FTSP requirements. The portal offers detailed guidance on FTSP
processes and requirements, including candidate, provider, and other
user guides, and Frequently Asked Questions.
Through the FTSP Portal, TSA is reducing its carbon footprint by
providing for all documentation and correspondence between TSA and the
regulated party to occur through the portal and email; no hard-copy
correspondence is required or generated. Email to <a href="/cdn-cgi/l/email-protection" class="__cf_email__" data-cfemail="e6a0b2b5b6c8ae838a96a6929587c8828e95c8818990">[email&#160;protected]</a>
is the most effective way to communicate with or query the FTSP. TSA
generally responds to emails within 5 to 7 business days.

F. Compliance Guidelines

The flow charts in Figures 1 and 2 summarize compliance
requirements for candidates (Figure 1) and flight training providers
(Figure 2).
BILLING CODE 9110-05-P
[GRAPHIC] [TIFF OMITTED] TR01MY24.016

[[Page 35599]]

[GRAPHIC] [TIFF OMITTED] TR01MY24.017

BILLING CODE 9110-05-C

G. What happens if a flight training provider or candidate fails to
comply?

1. False Statements (Sec. 1552.19)
Under Sec. 1552.19, neither the flight training provider nor the
candidate may make a willful false statement or misrepresentation or
omit a material fact when submitting the information required under
this part. TSA considers online confirmation and attestation by the
flight training provider or the candidate to be sufficient
certification that the information provided is neither fraudulent nor
false. The final rule clarifies that this prohibition against false
statements under the IFR applies to both candidates and flight training
providers.
Individuals subject to this rule may be subject to enforcement
actions under 49 CFR 1540.103 for fraud and intentional falsification
of records, or under Sec. 1540.105, which applies to individuals who
tamper with, interfere with, compromise, modify or attempt to
circumvent any security system, measure, or other TSA procedure.
Individuals subject to this rule who make knowing and willful false
statements, or who omit a material fact when submitting required
information for TSA also may be subject to fines and/or imprisonment
under 18 U.S.C. 1001, denied approval for a Determination of
Eligibility, and subject to other enforcement actions.
2. Compliance, Inspection, and Enforcement (Sec. 1503.207)
While the IFR included a paragraph related to TSA's inspection
authority, it did not provide the same detail found in other TSA
regulatory provisions, nor did it align with the full scope of TSA's
statutory authority. ATSA authorizes TSA, during reasonable business
hours and without advance notice, to enter a facility or access online
records and conduct any audits, assessments, tests, or inspection of
operations, and view, inspect, and copy any records necessary to carry
out TSA's security-related statutory and regulatory authorities.\68\
TSA may inspect the original or the recorded copy of any documents
provided by a student, candidate, or provider.
---------------------------------------------------------------------------

\68\ See ATSA as codified at 49 U.S.C. 114.
---------------------------------------------------------------------------

This access is necessary to ensure TSA meets its statutory mandate
to: (a) enforce its regulations and requirements; (b) oversee the
implementation and ensure the adequacy of security measures; and, (c)
inspect, maintain, and test security facilities, equipment, and systems
for all modes of transportation.\69\ This mandate applies even in the
absence of rulemaking, but TSA has chosen to include a restatement of
its authority in its rules. Over the years, TSA added language through
multiple final rules regarding inspections. As a result, TSA's
inspection authority had been restated in 49 CFR parts 1542, 1544,
1546, 1548, 1549, 1550, 1552, 1554, 1557, and 1570.
---------------------------------------------------------------------------

\69\ See 49 U.S.C. 114(f)(7), (11), and (9).
---------------------------------------------------------------------------

This final rule does not alter the scope of TSA's inspection
authority. Through this rulemaking, TSA is consolidating all statements
on the agency's enforcement authority into Sec. 1503.207, which covers
all of TSA's investigative and enforcement procedures. The new Sec.
1503.207 applies to all of TSA's regulatory requirements. This
consolidation is purely technical, as TSA's authority to conduct
inspections under each part is not changed. While the various
statements of inspection authority included in 49 CFR parts 1500 et
seq. were not identically worded, TSA has consistently interpreted each
of the previous statements to have the same scope and meaning as
provided by

[[Page 35600]]

49 U.S.C. 114. This final rule codifies this consistent interpretation
in Sec. 1503.207.

H. Severability

TSA is adding Sec. 1540.7 to reflect TSA's intent that the various
regulatory provisions be considered severable from each other to the
greatest extent possible. For instance, if a court of competent
jurisdiction were to hold that the rule or a portion thereof may not be
applied to a particular owner or operator or in a particular
circumstance, TSA intends for the court to leave the remainder of the
rule in place with respect to all other covered persons and
circumstances. The inclusion of a severability clause is not intended
to imply a position on severability in other TSA regulations.

III. Summary of Changes Between IFR and Final Rule

Table 6 summarizes changes between the IFR and final rule.

Table 6--Summary of Changes Between the IFR and the Final Rule
------------------------------------------------------------------------
Reason for the
Final rule Change from IFR change
------------------------------------------------------------------------
Subpart A
------------------------------------------------------------------------
Sec. 1552.1. Scope............ Describes the Technical.
scope and general
requirements of
the rule.
Sec. 1552.3. Terms used in Consolidates Technical change.
this part. definitions by Provides clarity
removing them to requirements
from other parts by defining terms
of the CFR and previously not
publishing them defined and
in one part. expanding some
existing
definitions.
Moves some terms
used throughout
TSA's regulations
to Sec. 1500.3.
(See I.E.)
Sec. 1552.5. Applicability.... Describes the Provides clarity
individuals and regarding
entities subject applicability of
to regulation the rules'
under this rule, requirements.
with revised text. Clarifies
requirements for
persons,
entities, and
companies
providing leased
aircraft
simulators for
flight training.
(See II.B.).
Sec. 1552.7. Verification of Describes the Expands and
eligibility. process for incorporates
verifying a clarifications
flight student's published after
eligibility for the IFR was
training in a issued, by
separate section, recognizing that
with revised text. many flight
training
providers may
become aware that
a candidate might
have become
ineligible prior
to TSA being
informed through
formal channels.
(See II.B. and
III.C.).
Sec. 1552.9. Security Requires all Provides a primary
Coordinator. flight training contact for
providers to administrative
designate a purposes and
person to serve compliance,
as a Security consistent with
Coordinator and TSA's other
outlines the role regulations. (See
of the Security II.B.5.).
Coordinator,
including what
training the
Coordinator must
participate in.
Sec. 1552.13. Security Replaces Avoids confusion
awareness training. ``recurrent'' between recurrent
security flight training
awareness (required by the
training with FAA) and
``refresher recurrent
security security
awareness awareness
training''. training
(required by TSA)
and reduces the
frequency of
refresher
security
awareness
training. (See
II.B.6.).
Sec. 1552.15. Recordkeeping... Consolidates Provides clarity
documentation and and eliminates
recordkeeping redundancies.
requirements and Provides cost-
introduces the saving options.
capability to (See II.B.7.).
store and manage
records on the
FTSP Portal.
Sec. 1552.17. FTSP Portal..... Consolidates FTSP Provides clarity
Portal account and eliminates
provisions. redundancies.
(See II.E.).
Sec. 1552.19. Fraud, Updates language Provides clarity
falsification, concerning the on impact of
misrepresentation, or omission. confirmation and making false
attestation of statements. (See
truth and II.G.1, III.C.).
accuracy.
------------------------------------------------------------------------
Subpart B
------------------------------------------------------------------------
Sec. 1552.31. Security threat Consolidates and The Determination
assessments required for flight standardizes of Eligibility
training candidates. requirements for may be used with
candidates, and one or more
extends the flight training
duration of an providers
STA for up to 5 (portable),
years. instead of
requiring a new
determination for
each flight
training event.
(See I.D.3.,
II.C., II.D.,
IV.C.5.).
Sec. 1552.33. [Reserved]...... .................. ..................
Sec. 1552.35. Presence in the Describes how TSA Clarifies TSA's
United States. determines role in
immigration check conducting an
eligibility in immigration
relation to an check. (See
STA. II.D.).
Sec. 1552.37. Comparable Allows applicants Allows for a
security threat assessments. to submit proof reduced fee for
of a completed, candidates that
comparable STA. hold a comparable
STA issued by
another DHS or
TSA program. (See
II.C.2., IV.C.).
Sec. 1552.39. Fees............ Consolidates all Combines fees paid
fee requirements. over a 5-year
timeframe into
one fee and
incorporates an
industry-stated
preference to pay
a single fee for
an STA covering
multiple training
events. (See
II.C., IV.B.,
IV.C., V.).
------------------------------------------------------------------------

[[Page 35601]]

Subpart C
------------------------------------------------------------------------
Sec. 1552.51. Notification and Consolidates Standardizes
processing of flight training flight training phrasing
events. event concerning
notification processing
requirements. capabilities, and
collects
pertinent
information for
one to many
training events
based on a 5-year
Determination of
Eligibility. (See
II.B.3., IV.C.4).
------------------------------------------------------------------------

TSA made these changes in response to comments received during the
comment periods following publication of the IFR in 2004, and following
the reopened comment period in 2018. All changes in the final rule are
supported by comments received on the IFR, or following the 2018
reopened comment period, many of which also formed the basis of formal
recommendations from ASAC. TSA tailored the scope and content of the
final rule to reflect only those changes that are supported by the
public record. TSA did not solicit a new round of comments after the
2018 comment period because the issues raised have not changed.
All exemptions, interpretations, and guidance documents related to
the IFR are incorporated into the final rule. TSA has authority under
49 U.S.C. 114(q) to issue an exemption to any TSA regulation, if such
an exemption is in the public interest. The basis for TSA's decision in
each exemption, interpretation, and guidance document was stated in the
original documents TSA provided when issuing each decision, all of
which may be found in the public docket for this rulemaking. TSA's
reasons for incorporating its previous decisions into the final rule
are described more fully in the sections of this document referenced in
column three of table 6. Most of TSA's interpretations of this rule
have been in place for nearly 2 decades, and all interpretations are
now standard practice across the flight training community. TSA does
not believe any industry members have relied to their detriment upon
the original text of the IFR, or any exemptions, interpretations, or
guidance documents issued thereafter. The final rule is intended
primarily as a cost-saving and burden-reducing measure, and as such,
TSA does not expect any members of the flight training community to be
significantly burdened by it.

IV. Discussion of Public Comments and TSA Responses

A. Solicitation of Comments on the IFR

TSA has twice invited public comment on the regulatory requirements
to inform a final rule. First, the IFR, published on September 20,
2004,\70\ requested comments from the public to be submitted by October
20, 2004. Although the original comment period closed in late 2004, one
additional comment came after the closing period (in 2011). TSA also
accepted this comment as part of the official record. Second, on May
18, 2018, TSA reopened the IFR comment period for 30 days \71\ and
solicited additional comments on the scope of STAs, including who
should receive them and how frequently; options for reducing the burden
of recordkeeping requirements, including use of electronic records; and
sources of data on costs and other programmatic impacts of the rule. In
addition to these formal opportunities for comment, TSA has been
interacting with, and receiving feedback directly from, the regulated
community on this program since its inception.
---------------------------------------------------------------------------

\70\ See supra note 1.
\71\ See supra note 5.
---------------------------------------------------------------------------

In total, TSA received 386 comments on the IFR since it was issued.
TSA considered every comment received during the open comment periods
as well as other stakeholder feedback on the FTSP since the IFR was
published. The following summarizes all comments and provides TSA's
responses. Issuance of this final rule concludes the comment
solicitation process TSA began with the IFR. TSA believes it has
addressed all issues and concerns emanating from public comments, and
has incorporated all viable recommendations from the public and
industry.

B. General Rulemaking Issues

1. Justification for the FTSP
Comments: In early comments, some commenters and members of an
industry association expressed general support for the IFR. Association
members noted that the IFR's requirements were reasonable to prevent
another terrorist attack similar to the attacks of September 11, 2001.
Some commenters felt the 2004 IFR did not go far enough, and many
commenters, including flight training providers, expressed general
disapproval of the IFR. Commenters opposing the IFR cited perceived
burdens across the regulated industry and predicted the rule would be
ineffective against a terrorist threat, stating that terrorists can
obtain training elsewhere, flight simulation software is readily
available, or that other forms of transportation, such as trucks, pose
more of a threat. Some 2004 commenters predicted that the IFR would
have a negative effect on aviation safety, and a few commenters in 2018
asserted that any regulation that discourages candidates from training
in the United States compromises aviation safety globally and could
harm U.S. citizens traveling abroad.
Some commenters suggested that the IFR could be circumvented easily
by terrorists or flight training providers, and that non-U.S. citizens
who become flight instructors could accumulate flight time in the
United States without being vetted by TSA. Several commenters stated
that the rule does not prevent a terrorist from learning to fly,
stating as examples that terrorists can train in other countries,
receive ``informal'' training that is not covered by this rule, or
learn using publicly available web-based flight simulation software.
Commenters also expressed concern that the IFR's underlying message
was that all foreign candidates are considered potential terrorists or
criminals. These commenters suggested this perception and the increased
burdens associated with the IFR would discourage non-U.S. citizens from
pursuing flight training in the United States.
One industry association suggested that the IFR was not necessary
because flight training providers had already implemented other
measures that have ``dramatically increased'' flight school security.
Some did not accept that a threat exists.
One commenter recommended that TSA ensure that candidates speak and
understand English.

[[Page 35602]]

TSA response: TSA was created in response to the attacks of
September 11th, and numerous laws have been enacted since that date to
strengthen security. One of these provisions, 49 U.S.C. 44939, requires
a nationwide program to identify individuals applying for flight
training who present ``a risk to aviation or national security.'' The
requirements in section 44939 focus on non-U.S. citizens who obtain in-
person flight training, and on security awareness training for flight
training providers in general. This rule is aligned with the
requirements of that statute.
The primary purpose of the FTSP is to prevent a non-U.S. citizen
from receiving flight training unless TSA has determined they are not a
security threat. Several of the terrorists who committed the attacks on
September 11, 2001, trained at flight schools in Florida, Arizona, and
Minnesota.\72\ As demonstrated by the horrific events of that day, even
a single act of terrorism can cause grave economic and social harm.
---------------------------------------------------------------------------

\72\ See supra note 7.
---------------------------------------------------------------------------

Since publication of the IFR in 2004, TSA has identified
individuals who posed or may have posed a threat to aviation and
national security and prevented them from receiving flight training
that they could use to carry out a terrorist act. During the 10-year
period shown in Figure 3, below, individuals representing all stages of
a pilot's career were identified as posing potential threats to
aviation and national security. For this reason, as discussed further
below, the final rule focuses on potential skills achieved by an
individual, as opposed to the IFR's focus on the weight of an aircraft.
Specifically, the final rule covers flight training leading to an
initial pilot license, an instrument rating, a multi-engine rating, a
type rating, and training required to maintain ratings for specific
types of aircraft. The definition of ``flight training'' codifies these
changes in Sec. 1552.3.
[GRAPHIC] [TIFF OMITTED] TR01MY24.018

TSA agrees that the United States benefits from foreign pilots
training in the United States under U.S. aviation safety standards.
Many of these aviators return to their home countries as professional
pilots and provide safer air transportation to U.S. citizens traveling
abroad.
Regarding the 2004 comments that the IFR unduly burdened the
industry, the final rule implements changes that TSA believes mitigates
burdens to candidates and providers. See discussion above in section
I.D.
Finally, in regard to requiring candidates to demonstrate English
proficiency, TSA's mission and authorities do not extend to this
concern. The FAA requires English proficiency under 14 CFR part 61.
2. TSA's Authority To Impose Requirements
Comments: Several commenters felt that the IFR exceeded the
statutory authority granted to TSA. An industry representative and
another commenter stated that the provisions of 49 U.S.C. 44939
pertaining to flight training only require flight instructors to
provide identification information to DHS and do not require
individuals to submit information to TSA beyond what the statute
specifically requires, or to submit to a background check.
TSA response: Under 49 U.S.C. 44939, the Secretary of Homeland
Security has broad discretion to

[[Page 35603]]

determine whether a candidate poses a ``risk to aviation or national
security.'' The same provision also states that these requirements may
be applied to ``other individuals designated by the Secretary.'' As
previously noted, the HSA transferred all functions related to
transportation security, including those of the Secretary of
Transportation and the Under Secretary of Transportation for Security,
to the Secretary of Homeland Security.\73\ The Secretary of Homeland
Security delegated this discretion and authority to the TSA
Administrator in DHS Delegation No. 7060.2. In addition to the
authorities granted by 49 U.S.C. 44939, TSA has broad authority to
ensure the security of air transportation under 49 U.S.C. 114.
---------------------------------------------------------------------------

\73\ See supra note 22.
---------------------------------------------------------------------------

TSA has broad statutory authority to assess a security risk for any
mode of transportation, develop security measures for dealing with that
risk, and enforce compliance with those measures.\74\ TSA also has
broad regulatory authority to issue, rescind, and revise regulations as
necessary to carry out its transportation security functions.\75\
---------------------------------------------------------------------------

\74\ Id.
\75\ 49 U.S.C. 114(l)(1).
---------------------------------------------------------------------------

In addition to these authorities, 6 U.S.C. 469(b) requires the
Secretary of Homeland Security to establish a process to properly
identify individuals who are not U.S. citizens or U.S. nationals who
receive recurrent flight training, and to ensure that these individuals
do not pose a risk to aviation or national security. The Secretary of
Homeland Security has also delegated this discretion and authority to
the TSA Administrator in DHS Delegation No. 7060.2. As discussed below,
the same statute authorizes the Secretary to impose reasonable fees to
recoup the cost of vetting candidates seeking flight training.\76\
---------------------------------------------------------------------------

\76\ See 6 U.S.C. 469(a). See also discussion of authorities in
section I.B.2.
---------------------------------------------------------------------------

3. TSA's Authority To Impose Fee for STAs
Comments: A few commenters, including two industry associations,
questioned TSA's authority to impose fees.
TSA response: TSA incurs costs from conducting STAs, processing
notifications of training events, enabling expedited processing for
eligible candidates, processing comparable STAs, arranging for FBI
CHRCs, and online records management. In addition to the authority
under 6 U.S.C. 469(a), which requires TSA to fund vetting and
credentialing programs in the field of transportation through user
fees, TSA is required by 6 U.S.C. 469(a) and authorized by 49 U.S.C.
44939(g) to collect fees for conducting STAs and managing flight
training event notifications. Accordingly, TSA charges fees for
candidates who receive an STA under the FTSP. A more robust discussion
on TSA's authority to collect fees for STAs is provided above in
section I.B.6. For more information concerning TSA costs, see the
accompanying fee study posted to the public docket and discussion in
section II.C.2.
4. TSA's Decision To Issue an IFR
Comments: Several commenters, including professional associations,
flight training providers, and others, disagreed with TSA issuing a
binding rule without providing the opportunity for prior notice and
public comment. They were concerned that stakeholder input would not be
solicited or considered.
TSA response: The Vision 100 Act transferred responsibility for the
FTSP from DOJ to DHS and required the Secretary of Homeland Security to
publish the IFR accomplishing this transfer, and other required
changes, within 60 days.\77\ For this reason, TSA dispensed with
certain notice procedures when it published the IFR. TSA has, however,
twice invited public comment on the regulatory requirements to inform a
final rule. TSA included an opportunity for public comment on the IFR,
specifically asking the public ``to participate in this rulemaking by
submitting written comments, data, or views,'' noting that ``to the
maximum extent possible, operating administrations within DHS will
provide an opportunity for public comment on regulations issued without
prior notice.'' \78\ In May 2018, TSA reopened the 2004 comment period
to solicit further comments on the program and identified six issues
for additional consideration.\79\ Through this final rule, TSA has
considered and responded to all of the comments received. In addition
to soliciting public comment through the Federal Register, TSA received
recommendations from the ASAC, whose meetings are a public record. The
details of the ASAC recommendations are discussed in more detail in
section I.B.
---------------------------------------------------------------------------

\77\ See supra note 15.
\78\ 69 FR at 56324.
\79\ 83 FR at 23239.
---------------------------------------------------------------------------

5. Economic Impacts of the FTSP on the Industry
Comments: Many commenters raised issues regarding the economic
impacts of the FTSP. A commenter wrote that the IFR could ``. . .
potentially [have] disastrous unintended consequences,'' and that ``TSA
has not set a very good example for following rules,'' giving as an
example that TSA did not prepare a statement under the Unfunded
Mandates Reform Act (UMRA) of 1985. Several commenters predicted that
the IFR would ruin the U.S. flight industry, especially recreational
flight. For additional information on the ASAC and reopened comment
period, see section I.B.4 and 5.
While at least one commenter concurred with TSA that it is
appropriate for candidates who undergo an STA for the first time to be
held to a 30-day review process to ensure that they do not pose a
threat to aviation or national security, many commenters argued that
flight training providers should not bear the burden of verifying
candidates' citizenship, identification, or other documents. They felt
that the IFR created undue time and cost burdens for non-U.S. citizens,
lawful permanent residents, and others who had already successfully
undergone a U.S.-Government-sponsored threat assessment.
Several 2004 commenters suggested that limiting the number of non-
U.S. citizens who receive flight training in the United States would
damage the U.S. economy by harming flight schools, flight instructors,
and other businesses patronized by foreign customers. Some aircraft
operators predicted that the IFR would reduce the U.S. share of the
multi-billion-dollar global flight training industry because aircraft
operators would train in other countries. An industry association
commented that burdens from the IFR threatened the viability of the
general aviation industry, private flight instructors, and small flight
schools. One commenter wrote that small businesses and independent
instructors conduct much of their flight training in the United States
and that many of these individuals do not have offices or equipment
necessary to comply with the IFR. One commenter wrote ``TSA seems to be
putting the burden of safeguarding the airline industry on the flight
schools instead of shouldering the responsibility themselves.''
A Canadian aircraft operator disagreed with TSA's determination in
the IFR that the rule's economic impact would be neutral, contending
that IFR requirements presented a significant

[[Page 35604]]

obstacle to taking flight training in the United States for non-U.S.
residents. A pilot stated that, although TSA assumed the IFR would not
have a significant impact on the demand for U.S. flight school training
despite the increase in costs to candidates, no data was provided to
support this assumption. A flight training provider stated that
approximately 60 percent of his students were not U.S. citizens, and
that the IFR's burden would result in some of these students forgoing
training.
Another pilot asserted that TSA's economic analysis in the IFR was
based on a flawed model of foreign pilots coming to the United States
to complete a single course of training, rather than a series of
training events over a long period of time. A flight instructor argued
the economic analysis does not account for either non-U.S. citizen
pilots training in the United States for a license to be issued by an
authority of a foreign country or for non-U.S. citizen pilots receiving
proficiency training in the United States.
A major flight training provider submitted that the IFR did not
include an estimate of the time lost by flight schools to process
candidates for flight training, e.g., identifying all candidates,
making copies of information, photographing candidates, and submitting
photos to TSA. Commenters in both 2004 and 2018 indicated that TSA had
underestimated the paperwork burden. One provider asserted that the
number of times candidates would need to apply to upgrade their ratings
and keep current on different types of aircraft was more than twice
what TSA had assumed in the IFR. Several commenters expressed concern
that the costs to industry caused by compliance with the IFR far
outweigh the benefits, particularly for light aircraft, and recommended
that TSA more thoroughly evaluate the costs and benefits.
Some 2018 commenters noted that domestic and foreign airlines use
U.S.-trained pilots to transport passengers and cargo to and from the
United States and between other countries, and that the U.S. economy
benefits from pilots trained in the United States to FAA standards.
TSA response: TSA is required by 49 U.S.C. 44939 to implement a
nationwide program to identify all non-U.S. citizens applying for
flight training who ``present[] a risk to aviation or national
security.'' In 2004, when assuming responsibility from DOJ and
publishing the IFR, TSA conducted all required regulatory analyses to
the degree possible. TSA consulted extensively with DOJ and
stakeholders on the costs of implementing the DOJ rule and conducted
the economic and other analyses published in the IFR. Since the IFR was
published, TSA has continually assessed impacts and adjusted the
program and requirements.
UMRA \80\ does not apply to a regulatory action in which no notice
of proposed rulemaking is published, as was the case for the IFR. See
UMRA analysis for this rulemaking in section V. Accordingly, and as
stated in the IFR, TSA did not prepare a statement under the UMRA.
---------------------------------------------------------------------------

\80\ Public Law 104-4 (109 Stat. 66; Mar. 22, 1995), codified at
2 U.S.C. 1511 et seq.
---------------------------------------------------------------------------

TSA acknowledges regulatory and cost burdens resulting from the
IFR, but notes that they mostly resulted from requirements TSA had to
impose to comply with statutory requirements. As noted above, TSA has
worked continually to improve STA processing and address as many
industry concerns as possible. Early predictions that the IFR would be
ineffective or ``has the potential for destroying an entire industry''
have proven incorrect. As noted above, since publication of the IFR,
TSA has identified individuals who pose a threat to aviation and
national security and has prohibited them from participating in flight
training. The industry remains a robust economic activity in the United
States.
The final rule is intended to minimize cost and time burdens on
both candidates and providers while maintaining the appropriate level
of security and complying with all statutory mandates. TSA considered
all economic impacts identified in the comments and conducted an
extensive economic analysis of the impacts of the IFR and the projected
impacts of the final rule; this analysis is included in section V. As
noted in section I.B.2, a 2008 amendment to 6 U.S.C. 469 required TSA
to recoup the costs of STAs for recurrent training.\81\ The statutory
amendments authorized TSA to establish the fees through notice.
Consistent with the changes to the law, TSA published a notice imposing
these fees in 2009.\82\
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\81\ See supra note 20 and accompanying text.
\82\ 74 FR 16880 (April 13, 2009).
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This final rule reduces candidate and provider burdens by moving to
a 5-year STA; incorporating all enhancements and clarifications
previously issued by the TSA; adding definitions and other
clarifications; and allowing for electronic recordkeeping. In addition,
TSA has separated the notification of training events by providers from
the STA process for the candidate. TSA has also implemented a reduced
fee for candidates who have a comparable STA.
TSA believes that these enhancements to the final rule may improve
opportunities for non-U.S. citizens to participate in flight training
in the United States and with FAA-certificated flight training
providers abroad. Finally, the regulatory and cost analyses TSA
conducted prior to issuing this final rule, as described in section V,
comply with current requirements for issuance of final rules.

C. Specific Regulatory Requirements

1. Terms (General)
Comments: TSA received comments concerning the following terms:
``aircraft simulator,'' ``alien,'' ``candidate,'' ``day,''
``demonstration flight for marketing purposes,'' ``flight school,''
``flight training,'' ``ground training,'' ``national of the United
States,'' and ``recurrent training.'' Many commenters raised questions
relating to the IFR's definitions, particularly questioning how the
specific meaning of a term in the IFR would affect the commenter's
obligation to comply with the regulation. Definition comments generally
fell into the following areas of concern:
<bullet> Inconsistencies between how some terms and definitions
were used in the IFR's preamble and the regulatory text, especially the
terms ``training,'' ``flight training,'' and ``candidate.''
<bullet> Inconsistency between the IFR's definition of ``aircraft
simulator'' and the FAA's definition.
<bullet> Lack of clarity regarding whether lawful permanent
residents of the United States are subject to requirements applicable
to non-U.S. citizens.
<bullet> Lack of clarity on requirements for documentation of
leasing agreements associated with training on aircraft simulators.
<bullet> Inadequacy of the definition of recurrent training, which
caused some confusion and generated many recommendations from
commenters.
TSA response: In coordination with industry and other U.S.
Government agencies, TSA expanded, consolidated, and clarified
definitions in the final rule in the following manner:
<bullet> Added the following terms and their definitions to Sec.
1500.3, applicable to all TSA regulatory requirements: ``citizen of the
United States,'' ``day,'' ``lawful permanent resident,'' ``national of
the United States or U.S. national,'' and ``non-U.S. citizen.''
<bullet> Added the following definitions to part 1552, applicable
specifically to the FTSP: ``aircraft simulator,'' ``candidate,''

[[Page 35605]]

``demonstration flight for marketing purposes,'' ``DoD,'' ``DoD
endorsee,'' ``Determination of Eligibility,'' ``Determination of
Ineligibility,'' ``flight training,'' ``flight training provider,''
``flight training provider employee,'' ``Flight Training Security
Program (FTSP),'' ``FTSP Portal,'' ``FTSP portal account,'' ``recurrent
training,'' ``security threat,'' ``security threat assessment,''
``simulated flight for entertainment purposes,'' and ``type rating.''
<bullet> Amended the following definitions in part 1552 for
clarity: ``aircraft simulator,'' ``candidate,'' ``demonstration flight
for marketing purposes,'' ``flight training,'' and ``recurrent
training.''
<bullet> Replaced the term ``flight school'' with ``flight training
provider,'' with some amendments, as appropriate, for clarity.
<bullet> Eliminated the terms ``alien'' and ``ground training.''
TSA discusses how these changes to the definitions affect
regulatory requirements in section II.A and in the next subsection,
which clarifies the scope and applicability of the regulation.
2. Applicability
a. General
Comments: Some 2004 commenters felt that applicability of the FTSP
is either too broad or unclear. Several aircraft operators and an
association requested that TSA exempt candidates who hold an FAA
pilot's license and who have worked for a U.S.-certificated airline for
3 or more years. Most of these commenters argued that their employees
meet the statutory definition of a ``national of the United States,''
and therefore fall outside the IFR's scope. Others asked that TSA allow
their companies to satisfy the IFR's requirements by sending TSA a list
of current airline pilots they employ.
An association noted that all air crews operating into the United
States must be on the aircraft operator's Master Crew List and
therefore were already cleared to operate into the United States.
Some commenters asked TSA to accept persons cleared by US-VISIT
\83\ as exempt, because DHS already collected their biometric
information (fingerprints) for that process.
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\83\ Now called the Office of Biometric Identity Management. See
<a href="https://www.dhs.gov/obim">https://www.dhs.gov/obim</a>.
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TSA response: Both the IFR and the final rule implement the
statutory requirements of 49 U.S.C. 44939. Persons who must comply with
requirements of the final rule are flight training providers and their
employees, all individuals who are ``candidates'' as defined in the
rule, and U.S. citizens or U.S. nationals who seek flight training.
Section II.B.1 clarifies the need for the requirements as applied to
U.S. citizens and U.S. nationals. Section 1552.37 of the final rule
allows for those candidates who have successfully completed a
comparable STA to submit evidence of that STA in order to qualify for a
reduced fee. TSA may accept Determinations of Eligibility held by
individuals who participate in TSA's TWIC[supreg], HME, TSA
PreCheck[supreg], and CBP's Global Entry, SENTRI, and NEXUS programs,
and any other program that TSA publishes on the FTSP Portal as
acceptable. TSA does not consider the US-VISIT program to be a
comparable STA because the vetting requirements of that program do not
include all elements of a Level 3 STA conducted by TSA.
TSA recognizes that the final rule is broad in its applicability to
flight training in all locations and in some cases to types of aircraft
that may not seem inherently dangerous. Consistent with its
transportation security mission, however, TSA recognizes the fact that
skills used to operate one aircraft can be transferred to the operation
of another aircraft.
b. Scope of Who Is Considered a Flight Training Provider
Comments: Early commenters noted that the IFR did not define
``flight school employee'' adequately, and that the definition of
``flight schools'' also included independent CFIs. These definitions,
they noted, resulted in TSA considering an independent instructor to be
both a flight school and an employee, despite the fact that the
instructor may not be a flight school or an employee as t

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