Flight Training Security Program

Federal RegisterMay 1, 2024

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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.

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:

FTSP.help@tsa.dhs.gov.

Legal questions:

David M.G. Ross, Office of Chief Counsel, TSA; telephone: (571) 227-2465; email:

TSA-OCC-R&SS@tsa.dhs.gov.

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

https://www.govinfo.gov/app/collection/FR/

to view the daily published

Federal Register

edition or accessing the Office of the Federal Register's web page at

https://www.federalregister.gov.

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

https://advocacy.sba.gov/resources/reference-library/sbrefa/.

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 (§ 1552.7(a)(1))

b. Verify Status of Foreign Military Pilots Endorsed by the Department of Defense (§ 1552.7(a)(2))

c. Determine Whether an Individual Providing “Side Seat” Support Is a Candidate (§ 1552.3)

2. Determine Whether the Candidate Is Required To Be Vetted Before Receiving Flight Training

a. Activities Considered Flight Training Events (§ 1552.3)

b. Activities Considered Recurrent Training (§ 1552.3)

c. Activities That Do Not Require Notification

3. Notify TSA of Flight Training Events for Candidates (§ 1552.51)

a. Information To Be Included in Notification of a Flight Training Event (§ 1552.51(a))

b. Candidate Photograph (§ 1552.51(d))

c. Notification of an Update or Cancellation (§ 1552.51(g))

d. Expedited Processing (§ 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 (§§ 1552.3, 1552.7(b), (c), and (d), and 1552.31(e))

5. Designate a Security Coordinator (§ 1552.9)

6. Provide Security Awareness Training to Employees (§ 1552.13)

7. Maintain Records (§ 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 (§ 1552.31)

2. Pay Fee for the Security Threat Assessment

a. Fees (§ 1552.39)

b. Reduced Fee for Comparable STAs (§ 1552.37)

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

1. Immigration Check (§ 1552.35)

2. Intelligence Check (§ 1552.31(c))

3. Criminal History Records Check (§ 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 (§ 1552.17)

2. Use of the FTSP Portal for Recordkeeping (§ 1552.15)

3. Use the FTSP Portal To Create and Access Accounts (§ 1552.17)

4. Use the FTSP Portal To Access FTSP Guidance (§ 1552.17)

F. Compliance Guidelines

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

1. False Statements (§ 1552.19)

2. Compliance, Inspection, and Enforcement (§ 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.

The purpose of this rulemaking is to prevent non-U.S. citizens

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,

including some certificated

pilots.

See

69 FR 56324 (Sep. 20, 2004),

codified at

49 CFR part 1552.

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.

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.

“Certificated” is a term used by the FAA for an individual who has been granted an FAA certificate.

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.

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.

See

83 FR 23238 (May 18, 2018).

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.”

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

overview of these modifications, see section I.D.

See

Sec. 6 of E.O. 13563.

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.

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.

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.

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.

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

to aviation or national security.

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).

Public Law 107-71 (115 Stat. 597; Nov. 19, 2001), codified at 49 U.S.C. 44939, as amended.

Id.

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 https://www.dhs.gov/sites/default/files/publications/18_0116_MGMT_DHS-Lexicon.pdf.

On February 13, 2003, the Department of Justice (DOJ) issued a final rule implementing the ATSA requirement.

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.

68 FR 7313 (Feb. 13, 2003).

Id.

at 7318.

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

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.

Referred to at that time as the Department of Transportation's Under Secretary for Transportation Security.

Beginning in December 2003, the following series of legislative actions substantially modified the requirements in ATSA.

• The Vision 100-Century of Aviation Reauthorization Act (the Vision 100 Act)

transferred the function of vetting candidates from the Attorney General to the Secretary of the Department of Homeland Security (DHS)

and required DHS to issue an IFR to implement additional requirements added to 49 U.S.C. 44939.

These amendments included authority for DHS to charge for the costs of conducting the required vetting.

Vision 100—Century of Aviation Reauthorization Act, Public Law 108-176 (117 Stat. 2490, 2574; Dec 12, 2003).

See id.

at section 612 (amending 49 U.S.C. 44939).

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.

See id.

at section 612(a) (amending 49 U.S.C. 44939(g)).).

• Section 520 of the Department of Homeland Security Appropriations Act, 2004 required the collection of fees authorized by the Vision 100 Act.

See

section 520 of Public Law 108-90 (Oct. 1, 2003), as codified at 6 U.S.C. 469(b).

• 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.

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.

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).

See id.

ATSA created TSA as a component of the Department of Transportation. Section 403(2) of the Homeland Security Act of 2002 (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. 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.

Public Law 107-296 (116 Stat. 2135; Nov. 25, 2002).

TSA established the FTSP by issuing an IFR with request for comments on September 20, 2004.

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.

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)

for each candidate engaged in recurrent training.

See supra

note 1.

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.

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.”

See

74 FR 16880 (Apr. 13, 2009).

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 1: provide one of the following documents establishing identity and U.S. citizenship

Option 2: provide 1 document from List A AND 1 document from List B

List A—valid proof of U.S. citizenship

List B—Valid photo identification

• Unexpired U.S. Passport (book or card).

• Unexpired Enhanced Tribal Card.

• Unexpired Free and Secure Trade Card (designates U.S. citizenship if indicated on the document).

• U.S. Birth Certificate.

• U.S. Territory Birth Certificate.

• U.S. Certificate of Citizenship (N-560 or N-561).

• U.S. Certificate of Naturalization (N-550 or N-570).

• Unexpired driver's license issued by a State or outlying possession of the United States.

• Unexpired temporary driver's license plus expired driver's license (constitutes one document).

• Unexpired NEXUS Card (designates U.S. citizenship if indicated on the document).

• Unexpired Secure Electronic Network for Travelers Rapid Inspection (SENTRI) Card (designates U.S. citizenship if indicated on the document).

• Unexpired Global Entry Card (designates U.S. citizenship if indicated on the document).

• Unexpired U.S. Enhanced Driver's License or Unexpired Enhanced Identification Card (designates U.S. citizenship if indicated on the document).

• U.S. Citizen Identification Card (I-179 or I-197).

• Consular Report of Birth Abroad (FS-240)

• Certification of Report of Birth Abroad (DS-1350 or FS-545).

• Expired U.S. passport (book or card) within 12 months of expiration if one or more of the documents in List B is also presented.

• Unexpired photo ID card issued by the Federal Government or by a State or outlying possession of the United States that includes a Federal or State agency seal or logo (such as a State university ID) (permits, such as a gun permit, are not considered valid identity documents).

• Unexpired U.S. military ID card.

• Unexpired U.S. retired military ID card.

• Unexpired U.S. military dependent's card.

• Native American tribal document with photo.

• Unexpired DHS/TSA TWIC Credential.

• Unexpired Merchant Mariner Credential.

• 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 (§ 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 attaché.

ASAC also recommended in 2016 that TSA update the regulation to confirm the mandatory use of the FTSP portal to verify endorsee status.

Foreign military pilots endorsed by the DoD are registered under the U.S. International Military Education and Training program. The DoD attaché coordination office uses the FTSP Portal to nominate DoD endorsees and to manage DoD attaché account holders' access to the portal.

See

Defense Security Cooperation Agency IMET website at

https://www.dsca.mil/programs/international-military-education-training-imet.

The FTSP portal also serves as the records repository for DoD endorsee letters provided by the attaché. 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

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 (§ 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 § 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 (§ 1552.3)

The following flight training events are subject to the rule's requirements:

• Initial pilot certification (whether private, recreational, or a sport pilot certificate), which provides a pilot with basic piloting skills.

• 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.

• Multi-engine rating, which provides a pilot with the skill to operate more complex, faster aircraft.

• 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.

• 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.

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 (§ 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.”

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.”

As stated above, and discussed more fully in section III, all previously issued clarifications and interpretations are replaced by this final rule.

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 https://www.regulations.gov/document?D=TSA-2004-19147-0226.

TSA Interpretation of “Recurrent Training” and Changes to the Security Threat Assessment Process for Recurrent Training, September 13, 2010,

available at fts.tsa.dhs.gov/static-content/ftsp_cat4_10_2010.pdf.

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-

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 Qualification

• Flight Simulation Training Device (FSTD) Guidance Bulletin 03-02.

• 14 CFR part 60, Flight Simulation Training Device Initial and Continuing Qualification and Use.

Enhanced Flight Vision System FSTD Qualification

• FSTD Guidance Bulletin 03-03.

• 14 CFR 61.66, Flight Simulation Training Device Initial and Continuing Qualification and Use.

Category II/III

• 14 CFR 61.67, Category II Pilot Authorization Requirements.

• 14 CFR 61.68, Category III Pilot Authorization Requirements.

Required Navigation Performance, Authorization Required

• FAA Advisory Circular (AC) 90-105A.

• AC 90-101A Change 1.

Air carrier qualifications

Line Oriented Flight Training [also called Line Operational Simulation (LOS)]

• FAA Advisory Circular (AC) 120-51E, Crew Resource Management Training.

Operator Specific

• 14 CFR 121.441, Proficiency Checks.

• 14 CFR 135.301, Crewmember: Tests and checks, grace provisions; training to accepted standards.

Differences Training

• Flight Standards Information Management System (FAA Handbook) Volume 3.

• General Technical Administration; Chapter 19: Training Programs and Airman Qualifications.

• Section 9, Safety Assurance System: Differences Training-All Training Categories.

Rejected Takeoff Go/No-Go

• FAA AC 120-62, Takeoff Safety Training Aid.

Commercial Operator Training

• 14 CFR 135.297, Pilot in command: Instrument proficiency check requirements.

Non-U.S. Air Carrier Proficiency Checks

• Proficiency Check.

• License Proficiency Check.

• Operator Proficiency Check.

• FAA Handbook; Volume 12, International Aviation.

• Chapter 2: Foreign Air Carriers Operating to the United States and Foreign Operators of U.S.-Registered Aircraft Engaged in Common Carriage Outside the United States.

• Section 3, Part 129, Part A: Operations Specifications.

Extended Operations (ETOPS)

• AC 120-42B, (ETOPS and Polar Operations).

Polar Operations.

• 14 CFR 121.7, Definitions.

• 14 CFR 121.162.

• AC 135-42, Extended Operations (ETOPS) and Operations in the North Polar Area.

• 14 CFR 135.364, Maximum flying time outside the United States.

Right Seat Training

• 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, Helicopter

• 14 CFR 61.56, Flight Review (for aircraft <12,500 lbs.).

• 14 CFR 61.57(a),(b),(c), and (d), Recent Flight Experience: Pilot in command.

Instrument Proficiency Checks

• 14 CFR 61.57(d), Recent Flight Experience: Pilot in command.

Landing Currency

• 14 CFR 61.57, Recent Flight Experience: Pilot in command.

Conversion

• 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

• 14 CFR 183.23, Pilot Examiners.

Training Center Instructor Training and Testing (includes instructor serving as trainee)

• 14 CFR 42.53, Training Center Instructor Training and Testing Requirements.

Other safety activities

Special Airport Qualifications

• 14 CFR 121.445, Pilot in Command Airport Qualification: Special Areas and Airports.

Upset Recover Training

• FAA AC 120-111, Upset Prevention and Recovery Training—with Change.

High Altitude Training

• 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 § 1552.51 on the FTSP Portal.

3. Notify TSA of Flight Training Events for Candidates (§ 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 (§ 1552.51(a))

In keeping with similar requirements under § 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:

• The candidate's name.

• The rating that the candidate could receive, maintain, or revitalize if the candidate completes the training.

• The location or locations, domestic or international, where training is to occur.

• 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 (§ 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 (§ 1552.51(g))

The flight training provider must update the following information for each candidate flight training event:

• Actual start and end dates;

• Actual training location(s); and

• 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

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 (§ 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:

• Holds an FAA airman certificate and has provided proof of their FAA certification and at least one type rating;

• 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;

• 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;

• 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

• 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 (§§ 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 § 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 (§ 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.

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.”

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.

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).

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 § 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.

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 (§ 1552.13)

All “flight training provider employees,” as defined in § 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 § 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.

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.

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 § 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 § 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 § 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:

• The aircraft operator must not offer or conduct flight training to the public or to employees of other aircraft operators.

• 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.

• An aircraft operator who implements this exemption must not use the FTSP Portal to record security awareness training.

Although the requirements under § 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.”

A copy of these guidelines is available at

https://www.tsa.gov/for-industry/general-aviation

under “GA Security Guidelines” or by contacting

FTSP.Help@tsa.dhs.gov.

7. Maintain Records (§ 1552.15)

In accordance with § 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:

• 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 § 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.

• Candidate records demonstrating flight training eligibility, as required in § 1552.15(c).

• Records documenting the flight training provider's verification of a student's U.S. citizenship, as required in § 1552.15(c). Providers also may meet this requirement by placing a statement in provider and student logbooks in accordance with § 1552.15(c)(2).

• DoD endorsement records demonstrating that the flight training provider has verified the endorsee's identity, as required in § 1552.7(a)(2).

• 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

www.tsa.gov.

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 § 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 (§ 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.

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

www.tsa.gov.

See

DOS Online Nonimmigrant Visa Application (DS-160) at

https://ceac.state.gov/genniv/.

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:

• Birth name: the name as it appears on the candidate's birth certificate.

• Maiden or premarital name: the name used prior to marrying.

• Americanized name: name that an individual may have adopted as an Anglicization to facilitate the spelling or pronunciation by English speakers.

• Legal name changes: legally changed name or names used by the individual one or more times in their life.

• Previous legal names even if no longer used.

• 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:

• Birth Country

• Foreign Naturalization status, from the date of naturalization to present.

• Whether dual or multi citizenship (include any and all citizenships held currently or in the past).

• 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).

• Renunciation of citizenship.

Social Security Number (if issued by the U.S. Government)

Social Security Number (if issued by 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 applicable)

Passport number(s); Date issued/expiration date; and Extension date and image, if applicable.

Documents sufficient to demonstrate permission to remain in the United States during all proposed flight training events

One or more documents that may include a Form I-94, U.S. lawful permanent resident card, U.S. employment authorization document, refugee documentation, asylum seeker documentation, parolee documentation, or authorization documents under Deferred Action for Childhood Arrivals.

Documentation provided must include:

• Document number(s);

• Date issued and/or expiration date (if any); and

• Extension date and image, if applicable.

Note:

The following documents do not demonstrate an extension of permission to remain in the United States:

• Appointment confirmation for biometric submission.

• Appointment confirmation for interview.

• 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:

• Start and end date(s) for each address.

• Street address and apartment or room number, if applicable.

• City, state, province, jurisdiction, and country.

• Zip code/postal code.

• 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 requires every candidate to provide an email address; this email address will be the primary means of communication between TSA and the candidate)

Email information must be unique to the individual and match the email associated with the candidate's account on the FTSP Portal. If a candidate's email information 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:

• Occupation.

• Employer or company name.

• Contact name (provide a person's contact information who can confirm occupation/employer, usually a supervisor).

• Employer phone number (if any).

• Employer email (if any).

• 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 § 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.

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 https://www.faa.gov/about/office_org/headquarters_offices/avs/offices/afx/afs/afs800/.

Consistent with current practice under the IFR, § 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 § 1552.31(e).

2. Pay Fee for the Security Threat Assessment

a. Fees (§ 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 § 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

§ 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.

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

Pay.gov,

the U.S. Government's electronic fee payment portal. The FTSP Portal provides all necessary instructions and a link to

Pay.gov

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

Pay.gov

that a fee was paid. Under § 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.

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.

See

69 FR at 56334.

The FTSP fee structure reflects current and estimated costs for processing the candidate's application.

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

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 (§ 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 § 1552.37, TSA assesses a reduced STA fee.

A candidate with a comparable STA must still provide the biographic and biometric information required under § 1552.31. The following is the current list of comparable STAs:

Id.

• TSA's PreCheck® program;

See https://www.tsa.gov/precheck. See also

78 FR 72922 (Dec. 4, 2013).

• TSA's TWIC® program;

See https://www.tsa.gov/for-industry/twic. See also

49 CFR part 1572.

• TSA's HME program;

See https://www.tsa.gov/for-industry/hazmat-endorsement. See also

49 CFR part 1572.

• DHS Trusted Traveler programs including Global Entry, SENTRI, and NEXUS.

See https://www.dhs.gov/trusted-traveler-programs.

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 (§ 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 § 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 (§ 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 § 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 (§ 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® program (a DHS trusted traveler program), and the TWIC® 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

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.

For more information,

see

the FBI's Next Generation website at

https://www.fbi.gov/services/cjis/fingerprints-and-other-biometrics/ngi.

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 (§ 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 attachés to submit DoD endorsements. The final rule also removes previously permitted procedures for faxing documents.

See

§ 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 (§ 1552.15)

As previously described in section II.B.7, TSA will allow flight training providers to store records required by § 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

required

for the following purposes

Use of FTSP Portal

encouraged

for the following purposes

• Designate a Security Coordinator.

• Verify that a student, candidate, or DoD endorsee is eligible to participate in flight training.

• Ensure each candidate holds a Determination of Eligibility.

• Notify TSA of all non-U.S. citizen flight training events.

• Notify TSA when a candidate appears to no longer be lawfully present or otherwise no longer permitted to remain in the United States, or has a disqualifying criminal offense.

• Document each student and candidate presents valid ID at each flight training event.

• Upload photos of candidates and DoD endorsees within 5 days from when they arrive for training.

• Update FTSP Portal records concerning candidate completion or non-completion of training.

• Acknowledge receipt of TSA notifications.

• Record compliance-related activities in lieu of maintaining physical or electronic records onsite.

• Record employee initial and biennial security awareness training events.

• Document aircraft simulator lease agreements.

• Record verification of student, candidate, or DoD endorsee eligibility.

• Support TSA, FAA, DoD, and SEVP inspections and audits of compliance records.

The FTSP Portal also is available to other U.S. Government agencies who may request access for the following purposes:

• 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.

• DoD attachés who initiate and distribute endorsement notifications to specific flight training providers.

• 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 (§ 1552.17)

In order to comply with the regulation, candidates and flight training providers must create their own accounts on the FTSP Portal

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

Pay.gov;

and associate their account with their flight training provider or providers.

Currently accessible at

https://www.fts.tsa.dhs.gov.

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.

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.

Please

see supra

note 32.

4. Use the FTSP Portal To Access FTSP Guidance (§ 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

FTSP.Help@tsa.dhs.gov

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

ER01MY24.016

ER01MY24.017

BILLING CODE 9110-05-C

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

1. False Statements (§ 1552.19)

Under § 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 § 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 (§ 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.

TSA may inspect the original or the recorded copy of any documents provided by a student, candidate, or provider.

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.

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.

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 § 1503.207, which covers all of TSA's investigative and enforcement procedures. The new § 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

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

H. Severability

TSA is adding § 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

Final rule

Change from IFR

Reason for the change

Subpart A

§ 1552.1. Scope

Describes the scope and general requirements of the rule

Technical.

§ 1552.3. Terms used in this part

Consolidates definitions by removing them from other parts of the CFR and publishing them in one part

Technical change. Provides clarity to requirements by defining terms previously not defined and expanding some existing definitions. Moves some terms used throughout TSA's regulations to § 1500.3. (

See

I.E.)

§ 1552.5. Applicability

Describes the individuals and entities subject to regulation under this rule, with revised text

Provides clarity regarding applicability of the rules' requirements. Clarifies requirements for persons, entities, and companies providing leased aircraft simulators for flight training. (

See

II.B.).

§ 1552.7. Verification of eligibility

Describes the process for verifying a flight student's eligibility for training in a separate section, with revised text

Expands and incorporates clarifications published after the IFR was issued, by recognizing that 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.).

§ 1552.9. Security Coordinator

Requires all flight training providers to designate a person to serve as a Security Coordinator and outlines the role of the Security Coordinator, including what training the Coordinator must participate in

Provides a primary contact for administrative purposes and compliance, consistent with TSA's other regulations. (

See

II.B.5.).

§ 1552.13. Security awareness training

Replaces “recurrent” security awareness training with “refresher security awareness training”

Avoids confusion between recurrent flight training (required by the FAA) and recurrent security awareness training (required by TSA) and reduces the frequency of refresher security awareness training. (

See

II.B.6.).

§ 1552.15. Recordkeeping

Consolidates documentation and recordkeeping requirements and introduces the capability to store and manage records on the FTSP Portal

Provides clarity and eliminates redundancies. Provides cost-saving options. (

See

II.B.7.).

§ 1552.17. FTSP Portal

Consolidates FTSP Portal account provisions

Provides clarity and eliminates redundancies. (

See

II.E.).

§ 1552.19. Fraud, falsification, misrepresentation, or omission

Updates language concerning the confirmation and attestation of truth and accuracy

Provides clarity on impact of making false statements. (See II.G.1, III.C.).

Subpart B

§ 1552.31. Security threat assessments required for flight training candidates

Consolidates and standardizes requirements for candidates, and extends the duration of an STA for up to 5 years

The Determination of Eligibility may be used with one or more flight training providers (portable), instead of requiring a new determination for each flight training event. (See I.D.3., II.C., II.D., IV.C.5.).

§ 1552.33. [Reserved]

§ 1552.35. Presence in the United States

Describes how TSA determines immigration check eligibility in relation to an STA

Clarifies TSA's role in conducting an immigration check. (

See

II.D.).

§ 1552.37. Comparable security threat assessments

Allows applicants to submit proof of a completed, comparable STA

Allows for a reduced fee for candidates that hold a comparable STA issued by another DHS or TSA program. (See II.C.2., IV.C.).

§ 1552.39. Fees

Consolidates all fee requirements

Combines fees paid 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.).

Subpart C

§ 1552.51. Notification and processing of flight training events

Consolidates flight training event notification requirements

Standardizes phrasing concerning processing 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,

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

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.

See supra

note 1.

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.

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.

As demonstrated by the horrific events of that day, even a single act of terrorism can cause grave economic and social harm.

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 § 1552.3.

ER01MY24.018

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

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.

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.

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.

TSA also has broad regulatory authority to issue, rescind, and revise regulations as necessary to carry out its transportation security functions.

Id.

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.

See

6 U.S.C. 469(a).