AGENCY:

Federal Aviation Administration (FAA), DOT.

ACTION:

Notice of proposed rulemaking (NPRM).

SUMMARY:

The FAA is proposing to require the use of an electronic Pilot Records Database (PRD) and implement statutory requirements. The PRD would be used to facilitate the sharing of pilot records among air carriers and other operators in an electronic data system managed by the FAA. Air carriers, specific operators holding out to the public, entities conducting public aircraft operations, air tour operators, fractional ownerships, and corporate flight departments would be required to enter relevant data on individuals employed as pilots into the PRD, and this would be available electronically to those entities. In addition, this proposal identifies all air carriers, fractional ownerships, and some other operators or entities that would be required to access the PRD and evaluate the available data for each pilot candidate prior to making a hiring decision.

DATES:

Send comments on or before June 29, 2020.

ADDRESSES:

Send comments identified by docket number [FAA-2020-0246] using any of the following methods:

• Federal eRulemaking Portal: Go to http://www.regulations.gov and follow the online instructions for sending your comments electronically.
• Mail: Send comments to Docket Operations, M-30; U.S. Department of Transportation (DOT), 1200 New Jersey Avenue SE, Room W12-140, West Building Ground Floor, Washington, DC 20590-0001.
• Hand Delivery or Courier: Take comments to Docket Operations in Room W12-140 of the West Building Ground Floor at 1200 New Jersey Avenue SE, Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays.
• Fax: Fax comments to Docket Operations at (202) 493-2251.

Privacy: In accordance with 5 U.S.C. 553(c), DOT solicits comments from the public to better inform its rulemaking process. DOT posts these comments, without edit, including any personal information the commenter provides, to www.regulations.gov, as described in the system of records notice (DOT/ALL-14 FDMS), which can be reviewed at www.transportation.gov/​privacy.

Docket: Background documents or comments received may be read at http://www.regulations.gov at any time. Follow the online instructions for accessing the docket or go to the Docket Operations in Room W12-140 of the West Building Ground Floor at 1200 New Jersey Avenue SE, Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays.

FOR FURTHER INFORMATION CONTACT:

For technical questions concerning this action, contact Christopher Morris, 3500 S MacArthur Blvd., ARB301, Oklahoma City, Oklahoma 73179; telephone (405) 954-4646; email christopher.morris@faa.gov.

Table of Contents

I. Overview of the Proposal

A. Summary of Current PRIA Guidance, Public Law 111-216 Section 203 (49 U.S.C. 44703(i)), and Proposed Requirements for the PRD

B. Summary of the Costs and Benefits of This Proposed Rule

II. Background

A. Statement of the Problem

1. Response to NTSB Recommendations

2. Congressional Action

1. Current Elements of PRIA

a. Pilot Employment Background

b. Pilot Rights and Protection in Accordance With PRIA

c. Exceptions to PRIA

d. FAA Guidance for Compliance With PRIA

2. History of the Pilot Records Database

a. Pilot Records Database Aviation Rulemaking Committee

b. Electronic Database Development

c. Related Actions to the Pilot Records Database

III. Discussion of the Proposal

A. Persons Affected by the Proposal (§ 111.1)

1. Air Carriers and Operators That Must Evaluate Records (§§ 111.100, 111.105)

2. Operators Employing Pilots That Must Enter Data (§§ 111.200, 111.205)

3. Overview of Affected Entities (§§ 111.200, 111.205, 111.270)

a. Part 121 Air Carriers

b. Part 135 Air Carriers and Operators

c. Part 125 Operators

d. Part 91, Subpart K Fractional Ownership Programs

e. Section 91.147 Air Tour Operators

f. Corporate Flight Departments

g. Public Aircraft Operations

h. Trustees in Bankruptcy

4. Entities That Will Not Be Required to Report Information

5. Other Sources of Pilot Records

a. Training Providers

b. Institutions of Higher Education

B. FAA Records To Be Reported to the Pilot Records Database (§ 111.140)

1. Comprehensive Airmen Information System

2. Enforcement Information System

a. Summaries of Legal Enforcement Actions

b. Expunction of Legal Enforcement Actions and Airman Records

c. Pilot Records Database Aviation Rulemaking Committee's Position on the FAA's Expunction Policy

3. Accident/Incident Data System

4. Drug and Alcohol Records To Be Entered by the FAA

a. Pre-Employment Testing Records

C. Reporting Requirements of Historical Records Maintained by Air Carriers and Operators Employing Pilots (§§ 111.210, 111.250, 111.265, 111.420)

1. Data Required for Submission of Historical Records to the Pilot Records Database

2. Reporting Method Option 1: Data Transfer Using an Automated Utility

3. Reporting Method Option 2: Manual Data Entry

4. Alternative Solutions Considered

5. Public Input on Historical Records

D. Reporting Requirements: Present and Future Records (§§ 111.210, 111.250)

1. Data Pertaining to the Individual's Performance as a Pilot

a. Pilot Training, Qualification, and Proficiency Records (§ 111.220)

i. Part 121 Air Carrier Training Records

ii. Part 125 Operator Training Records

iii. Part 135 Air Carrier and Operator Training Records

iv. Part 91 Subpart K Fractional Ownership Training Program Records

v. Pilot Training Records Documented by Commercial Air Tour Operators, Corporate Flight Departments, and Entities Conducting Public Aircraft Operations

2. Drug and Alcohol Testing Records (§ 111.215)

3. Disciplinary Action Records (§§ 111.225, 111.255, 111.260)

a. Definition of Disciplinary Action Record

b. Timeframes for Entry and Correction of Overturned Records

4. Proposal for Reporting Records Concerning Separation From Employment (§ 111.230)

a. Information to Enter Into the Database

b. Final Date of Employment

c. Reinstatement of Employment

d. Types of Separation

i. Separation From Employment That Was Not Due to Pilot Performance and Was Initiated by an Air Carrier or Operator

ii. Air Carrier/Operator-Initiated Separation Related to Pilot Performance

iii. Pilot-Initiated Separation Unrelated to Pilot Performance

5. State Driving Records and the National Driver Register (§ 111.110)

a. Background on the National Driver Register

b. Current Process for Air Carrier National Driver Register Requests Under the PRD Act

c. Proposal for Evaluation of Driving Records (§ 111.240)

E. Exclusion of Voluntary Aviation Safety Program Records (§ 111.245)

F. Good Faith Exception (§ 111.115)

G. Pilot Records Improvement Act (PRIA) Transition (§ 111.400)

IV. Database Design and Security

A. Management of Users

1. Overview of User Roles (§§ 111.15, 111.20, 111.25)

2. Registration for Pilot Records

3. Registration for User Access (§§ 111.15, 111.20, 111.25)

B. General Eligibility Requirements for Access to the Pilot Records Database

1. Responsible Persons (§§ 111.15, 111.20, 111.25)

2. Responsible Persons' Delegation Authority (§§ 111.15, 111.20, 111.25)

3. Authorized Users (§§ 111.20, 111.25, 111.30, 111.35)

4. Proxies (§ 111.20, 111.25)

5. Pilot Users (§§ 111.25, 111.300, 111.305)

C. Protection of the Privacy and Confidentiality of Pilots and Other Users (§§ 111.45, 111.100, 111.105, 111.135)

D. Overview of Steps for Processing a Record Request

1. Pilot Consent (§ 111.120, 111.125, 111.310)

2. Hiring Employer's Role During the Request Process

3. Record Retention and Removal Upon Death of a Pilot (§ 111.50)

V. User Fee for Accessing the PRD for Purposes of Evaluation (§ 111.40)

VI. Regulatory Notices and Analyses

A. Regulatory Evaluation, Regulatory Flexibility Determination, International Trade Impact Assessment, and Unfunded Mandates Assessment

1. Total Benefits and Costs of This Proposed Rule

2. Those Potentially Affected by This Proposed Rule

3. Assumptions

4. Benefits of This Proposed Rule

5. Costs of This Proposed Rule

B. Regulatory Flexibility Determination

1. Description of Reasons the Agency is Considering the Action

2. Statement of the Legal Basis and Objectives

3. Description of the Recordkeeping and Other Compliance Requirements

4. All Federal Rules That May Duplicate, Overlap, or Conflict

5. Description and an Estimated Number of Small Entities Impacted

6. Alternatives Considered

C. International Trade Impact Assessment

D. Unfunded Mandates Assessment

E. Paperwork Reduction Act

F. International Compatibility and Cooperation

G. Environmental Analysis

VII. Executive Order Determinations

A. Executive Order 13132, Federalism

B. Executive Order 13211, Regulations That Significantly Affect Energy Supply, Distribution, or Use

VIII. Additional Information

A. Comments Invited

B. Availability of Rulemaking Documents

IX. The Proposed Amendments

SUPPLEMENTARY INFORMATION:

Authority for This Rulemaking

The FAA's authority to issue rules on aviation safety is found in Title 49 of the United States Code (49 U.S.C.). This rulemaking is promulgated under the general authority described in 49 U.S.C. 106(f), which establishes the authority of the Administrator to promulgate regulations and rules, and the specific authority provided by § 203 of the Airline Safety and Federal Aviation Administration Extension Act of 2010 (“the PRD Act”), codified at 49 U.S.C. 44703(h)-(j). The PRD Act identifies several rulemaking requirements.

The PRD Act requires the Administrator to promulgate regulations to establish an electronic pilot records database containing records from the FAA and records maintained by air carriers and other operators that employ pilots. At a minimum, air carriers and operators employing pilots must report “records that are generated by the air carrier or other person after [August 1, 2010,]” as well as “records that the air carrier or other person [was] maintaining, on [August 1, 2010],” on any person employed as a pilot.^[1] The PRD Act also requires air carriers to access the database and evaluate any relevant records maintained therein pertaining to an individual before allowing that individual to begin service as a pilot.

The FAA is further required to issue regulations to protect and secure the personal privacy of any individual whose records are accessed in the new electronic database; to protect and secure the confidentiality of those records; and, to prevent further dissemination of those records once accessed by an air carrier. The PRD Act also requires the implementing regulations to prescribe a timetable for the implementation of the PRD as well as a schedule for sunsetting the Pilot Records Improvement Act of 1996.

I. Overview of the Proposal

This proposed rule would require all Title 14, Code of Federal Regulations (14 CFR) part 119 certificate holders, fractional ownership programs, persons authorized to conduct air tour operations in accordance with § 91.147,^[2] persons operating a corporate flight department, and governmental entities conducting public aircraft operations (collectively referred to as “covered entities”) to report relevant records to an electronic pilot record database (PRD) managed by the FAA.

Currently, the FAA, air carriers and other operators maintain pilot records pursuant to the statutory requirements contained in the Pilot Records Improvement Act (PRIA).^[3] The FAA maintains records related to airman certificates and legal enforcement actions that result in a finding of a violation that was not subsequently overturned. Air carriers and other operators maintain records related to pilot training and qualification, final disciplinary actions, final separation from employment actions, and drug and alcohol testing. Currently, under PRIA, an employer is required to have a candidate for employment as a pilot complete a series of paper forms. Some of the forms are mailed to the previous employers to request copies of any available records as specified by PRIA. Another form is submitted to the FAA to request the FAA records as specified by PRIA. The FAA typically processes the requests and provides the appropriate records within 3 business days. These records may be provided via mail or email. The FAA processes approximately 20,000 individual requests per year. The FAA does not have an estimate for how many records requests are exchanged between employers annually. FAA currently co-locates its PRIA records in an electronic database called the PRD, which was created with funds appropriated by Congress and is in beta testing. Air carriers and other operators share their records with each other in accordance with a manual, paper-based process. Congress mandated the creation of a fully electronic database for all of these records collectively, which was the genesis for this rulemaking.

The proposal does not impose new substantive recordkeeping requirements on air carriers or operators. Rather, the proposal would require that covered entities report specific data to the PRD from records that are required to be kept pursuant to regulations, or from records that are otherwise kept by covered entities in their role as an employer. When this rule is finalized, the current PRD, which is currently populated with FAA records, will also be populated with air carrier and operator airman records. Air carriers and other operators would be required to electronically transfer into the PRD historical records they currently maintain (in accordance with statutory requirements) as well as new records they create in the future. The PRD would contain the required air carrier, operator, and FAA records for the life of the pilot and would be permitted to be used only as a hiring tool in an air carrier or operator's decision-making process for pilot employment. Pilot consent would be time-limited to a designated air carrier to view that pilot's records. Air carriers cannot search PRD broadly—the system would limit them to a specific individual's records only if the pilot gives consent and the consent period is still in effect.

All air carriers and operators would be required to continue to comply with the PRIA until two years and 90 days after the publication of the final rule that follows this proposal. As a result, for a period of time air carriers and operators would have to comply with both the PRIA record retention requirements and the PRD reporting requirements. All air carriers and operators that are subject to the reporting requirements in this proposal would be required to begin entering specific pilot records within one year of the publication date of the final rule. Air carriers and operators employing pilots would be required to input all historical records into the PRD within two years of the publication date of the final rule. Finally, PRIA would cease to be effective two years and 90 days after publication of the final rule, as set forth in statute.

A. Summary of Current PRIA Requirements, the PRD Act, and Proposed Requirements for the PRD

The establishment of the PRD would eventually phase out the current PRIA request process. In addition, the FAA proposes to add certain additional requirements that are responsive to the mandates in Public Law 111-216 section 206, as well as beneficial from a safety perspective. The following table summarizes the current recordkeeping and reporting requirements under PRIA, the requirements imposed by legislation, and the key recordkeeping and reporting requirements of this proposal.

B. Summary of the Costs and Benefits of This Proposed Rule

The FAA estimated quantified costs and savings of this proposed rule. After the effective date of the final rule that follows this proposal, air carriers and other operators would incur costs to report pilot records to the PRD, and to train and register as users of the PRD. Air carriers would also receive cost savings once PRIA is phased out. The FAA would incur costs of the proposed rule related to the operations and maintenance of the PRD.

Over a 10-year period of analysis from 2021 through 2030,^[4] the FAA estimates the proposed rule would result in present value net costs to industry and the FAA of about $12.8 million or $1.8 million annualized using a 7% discount rate. Using a 3% discount rate, the proposed rule would result in present value net costs of about $11.5 million over the same 10-year period or about $1.4 million annualized.

However, the FAA estimates industry would receive a net cost savings from the proposed rule from the discontinuance of PRIA. Over the same 10-year period, the present value net cost savings of the proposed rule to industry are about $2.6 million or $0.4 million annualized using a 7% discount rate. Using a 3% discount rate, the proposed rule would have a present value net cost savings to industry of about $7.0 million over the same 10-year period or about $0.8 million annualized.

In addition to future regulatory costs, the FAA has incurred costs to develop the PRD since 2010.^[5] From 2010 through 2020, the FAA estimates the present value PRD development costs are about $14.1 million or $1.5 million annualized using a 7% discount rate. Using a 3% discount rate, the present value PRD development costs are about $18.0 million over the same period or about $2.4 million annualized.

Therefore, the FAA estimates the total impacts of this regulatory action over a 21-year period of analysis from 2010 through 2030 that includes PRD development costs before the effective date of the final rule and future PRD regulatory impacts after the effective date of the final rule. Over this 21-year time period, this regulatory action would result in present value net costs of about $30.8 million or $2.8 million annualized using a 7% discount rate. Using a 3% discount rate, this regulatory action would result in present value net costs of about $25.6 million over the 21-year period of analysis or about $1.7 million annualized.

This rulemaking also proposes a user fee to be applied to costs related to the operations and maintenance of the PRD beginning one year after the effective date of the final rule. Government fees and taxes are considered transfer payments per OMB Circular A-4 and are not considered a societal cost. These transfers are reported separately from the costs and cost savings of this proposed rule. The proposed PRD user fee would effectively be a transfer payment from industry to the FAA to cover the FAA's PRD operation and maintenance (O&M) costs. The FAA estimates the 10-year present value of the user fees to be about $13.2 million or $1.9 million annualized using a 7% discount rate, reflecting the FAA's underlying O&M costs. Using a 3% discount rate, the total present value of the user fees would be about $16.3 million over 10 years or about $1.9 million annualized.

This proposed rule would enhance aviation safety by assisting air carriers in making informed hiring and personnel management decisions using the most accurate and complete pilot records available and electronically accessible. The database created by the proposed rule would contain information maintained by the FAA concerning current airman certificates with any associated type ratings and current medical certificates, including any limitations or restrictions to those certificates, airman practical test failures, and summaries of legal enforcement actions. The PRD would contain air carrier, operator, and FAA records on an individual's performance as a pilot that could be used as a hiring tool in an air carrier's decision-making process for pilot employment. These records would remain in the PRD for the life of the pilot.

II. Background

A. Statement of the Problem

The Pilot Records Improvement Act (PRIA) ^[6] was enacted in 1997 in response to a series of air carrier accidents attributed to pilot error.^[7] The National Transportation Safety Board (NTSB) found that although the pilots had a history of poor training performance or other indicators of impaired judgment, their backgrounds had not been investigated by their current employers.

Two accidents following the enactment and implementation of PRIA led the NTSB to make additional findings and recommendations regarding pilot record retention, the sharing of information related to pilot performance among air carriers and operators, and the review of previous performance records by air carriers. On July 13, 2003, Air Sunshine Incorporated flight 527 (d/b/a Tropical Aviation Services, Inc.) ditched in the Atlantic Ocean about 7 nautical miles west-northwest of Treasure Cay Airport (MYAT), Bahamas, after an in-flight failure of the right engine. The flight was operating under the provisions of 14 CFR part 135 as a scheduled international, passenger-commuter flight. Out of the nine total passengers, two passengers died after evacuating the airplane and five passengers sustained minor injuries. The pilot sustained minor injuries, and the airplane sustained substantial damage.

The NTSB determined that “the probable cause of the accident was the in-flight failure of the right engine and the pilot's failure to adequately manage the airplane's performance after the engine failed.” ^[8] The NTSB also found that “the pilot had a history of below-average flight proficiency, including numerous failed flight tests, before the flight accident, which contributed to his inability to maintain maximum flight performance and reach land after the right engine failed.” ^[9]

In response to the Air Sunshine 527 accident, the NTSB issued recommendation A-05-01, which advised the FAA to require all “part 121 and 135 air carriers to obtain any notices of disapproval for flight checks for certificates and ratings for all pilot-applicants and evaluate this information before making a hiring decision.” ^[10] The NTSB recognized the importance of validating FAA ratings and certifications, as required by PRIA, but noted that “additional data contained in FAA records, including records of flight check failures and rechecks, would be beneficial for a potential employer to review and evaluate.” The NTSB acknowledged that while “a single notice of disapproval for a flight check, along with an otherwise successful record of performance, should not adversely affect a hiring decision,” a history of “multiple notices of disapproval for a flight check might be significant[. . .] and should be evaluated before a hiring decision is made.” There is not likely a single algorithm which can tell the potential employer if they should hire a pilot based on a ratio of satisfactory and unsatisfactory flight checks.^[11] However, providing this information about the airman would assist the potential employer in developing a more complete picture of that airman's overall performance as a pilot.

On February 12, 2009, Colgan Air, Inc. flight 3407 (d/b/a Continental Connection), crashed into a residence in Clarence Center, NY, about 5 nautical miles northeast of the Buffalo-Niagara International Airport, New York resulting in the death of all 49 passengers on board and one person on the ground. The flight was operated under 14 CFR part 121.

The NTSB determined that “the probable cause of this accident was the captain's inappropriate response to activation of the stick shaker, which led to an aerodynamic stall from which the airplane did not recover.” ^[12] Contributing factors included: “(1) The flightcrew's failure to monitor airspeed in relation to the rising position of the low-speed cue, (2) the flightcrew's failure to adhere to sterile cockpit procedures, (3) the captain's failure to effectively manage the flight, and (4) Colgan Air's inadequate procedures for airspeed selection and management during approaches in icing conditions.” ^[13]

Additional safety issues identified by the NTSB in the Colgan Air 3407 accident report included certain deficiencies in the air carrier's recordkeeping system, as well as the air carrier's analysis of the flightcrew's qualifications and previous performance. Specifically, Colgan Air's records showed that the captain had failed his initial proficiency check on the Saab 340 on October 15, 2007, received additional training, and passed his upgrade proficiency check on October 18, 2007. In addition to this particular failed check at Colgan, the NTSB stated that the captain failed his practical tests for the instrument rating (airplane category) on October 1, 1991; the commercial pilot certificate (single-engine land airplane) on May 14, 2002; and required additional training in three separate training events while a first officer at Colgan. The NTSB deemed these discrepancies in the captain's training records as noteworthy because the captain had demonstrated previous training difficulties during his tenure at Colgan Air.

As a result of its investigation, the NTSB issued recommendation A-10-19, which provided that the FAA require all “part 121, 135, and 91K operators to provide the training records requested in Safety Recommendation A-10-17 to hiring employers to fulfill their requirement under PRIA.” Safety Recommendation A-10-17 advises the FAA to require all “part 121, 135, and 91K operators to document and retain electronic and/or paper records of pilot training and checking events in sufficient detail so that the carrier and its principal operations inspector can fully assess a pilot's entire training performance.” ^[14]

In the Colgan Air 3407 final aircraft accident report, the NTSB noted the issuance of Safety Recommendation A-05-01 as a result of the Air Sunshine 527 accident. The NTSB indicated its continued recommendation that airman certification information concerning previous notices of disapproval should be included in an air carrier's assessment of the suitability of a pilot-applicant. The NTSB also indicated that notices of disapproval should be considered safety-related records that must be included in an air carrier's evaluation of a pilot's career progression. While recognizing that the FAA had revised Advisory Circular (AC) 120-68: The Pilot Records Improvement Act of 1996 ^[15] to indicate that the hiring employer may, at its discretion, request a record of an individual's notices of disapproval for flight checks from the FAA,^[16] the NTSB advised that a more permanent action through rulemaking would ensure that air carriers be required to obtain and evaluate notices of disapprovals for pilot-applicants.

This proposed rule both implements requirements of the PRD Act and responds to several open NTSB recommendations. First, consistent with NTSB recommendation A-05-01, the FAA proposes to require all air carriers and operators to access and evaluate an individual's records in the PRD before making a hiring decision. These records would include any notices of disapproval that the individual received during a practical test attempt for a certificate or rating. The FAA would upload data processed in the Certification Airmen Information System (CAIS) on a nightly basis to ensure both air carriers and operators have the most accurate and up-to-date information to make an informed hiring decision. Second, consistent with A-10-17 and A-10-19, the FAA proposes to require air carriers and operators to enter relevant information into the PRD in a standardized format. This information is intended to help an air carrier to make an informed hiring decision.

B. History of PRIA and PRD

Following the Colgan Air 3407 accident, Congress enacted the Airline Safety and Federal Aviation Administration Extension Act of 2010 (Pub. L. 111-216; August 1, 2010).^[17] Section 203 of the PRD Act required the FAA to establish an electronic pilot records database and provided for the subsequent sunset of PRIA. Additionally, Congress has since enacted the FAA Extension, Safety, and Security Act of 2016 (FESSA) (Pub. L. 114-190; July 15, 2016). Section 2101 of FESSA required the FAA to establish an electronic pilot records database by April 30, 2017. This proposed rule implements those statutory mandates.

1. Current Elements of PRIA

a. Pilot Employment Background

As previously mentioned, Congress enacted PRIA to ensure that air carriers adequately investigate an individual's employment background and other information pertaining to the individual's performance as a pilot before allowing that individual to serve as a flight crewmember in air carrier operations. PRIA requires a hiring air carrier to obtain records from three distinct sources utilizing standardized forms including: (1) Current and previous air carriers or operators that had employed the individual as a pilot, (2) the FAA, and (3) the National Driver Register (NDR).

The records that must be requested by a hiring air carrier and provided by a pilot's current and previous employers in response to a PRIA request include all records kept pursuant to particular provisions of Title 14, Code of Federal Regulations related to maintaining current crewmember records and drug and alcohol testing records,^[18] excluding records related to flight time, duty time, and rest time. Also required to be in the PRIA request are “any other records pertaining to the individual's performance as a pilot that are maintained by the air carrier or person concerning the following: (1) The training, qualifications, proficiency, or professional competence of the individual, including comments and evaluations made by a check pilot; (2) any disciplinary action taken with respect to the individual that was not subsequently overturned; and (3) any release from employment or resignation, termination, or disqualification with respect to employment.”

In accordance with PRIA, an air carrier must request records related to the individual for “the 5-year period preceding the date of the employment application of the individual.” No person is permitted to furnish records in response to a PRIA request “if the record was entered more than 5 years before the date of the request, unless the information concerns a revocation or suspension of an airman certificate or motor vehicle license that is in effect on the date of the request.” The FAA and previous air carrier and/or operators are required to retain all pilot records which would be furnished in response to a PRIA request, except NDR-related records, for a period of at least 5 years. PRIA permits an air carrier or other person who receives a request for records under PRIA to “establish a reasonable charge for the cost of processing the request and furnishing copies of the requested records.” ^[19]

The records furnished in response to a PRIA request are commonly used as a “validation” tool, rather than a research, screening, or selection tool.^[20] Many employers will hire a pilot and then ensure all records are received prior to permitting the pilot to begin service because the PRIA process can take an extensive amount of time.

b. Pilot Rights and Protection in Accordance With PRIA

Since records provided in accordance with PRIA may affect an individual's future employment status as a pilot with an air carrier, the hiring air carrier must “obtain written consent to the release of those records from the individual that is the subject of the records requested.” ^[21] The air carrier is permitted to “require the individual. . . to execute a release from liability for any claim arising from the furnishing of such records to or the use of such records by such air carrier (other than a claim arising from furnishing information known to be false and maintained in violation of a criminal statute).” If an individual seeking employment as a pilot with the air carrier refuses to provide written consent to obtain the subject's records or refuses to execute a release from liability, an air carrier may refuse to hire that individual as a pilot, and no action or proceeding may be brought against the air carrier as a result. Notably, an air carrier receiving records in response to a PRIA request must “take such actions as may be necessary to protect the privacy of the pilot and the confidentiality of the records, including ensuring that information contained in the records is not divulged to any individual that is not directly involved in the hiring decision.” ^[22]

Records obtained from the various sources required in accordance with PRIA may only be used by an air carrier to assess the qualifications of the individual in deciding whether to hire the individual as a pilot. Therefore, a person who receives a request for records under PRIA must “provide to the individual who is the subject of the records . . . written notice of the request and of the individual's right to receive a copy of such records” as well as a copy of such records, if requested by the individual.^[23] Accordingly, PRIA requires the current or previous employer to “make available, within a reasonable time, but not later than 30 days after the date of the request, to the pilot for review, any and all employment records . . . pertaining to the employment of the pilot” that are maintained by the air carrier and subject to being furnished in response to a PRIA request.^[24] The subject of the records must also be given the “reasonable opportunity to submit written comments to correct any inaccuracies contained in the records before an air carrier makes a final hiring decision with respect to the individual.” ^[25]

c. FAA Guidance for Compliance With PRIA

The provisions of PRIA were self-implementing and the FAA's role in the PRIA process was limited; therefore, the FAA did not develop implementing regulations. The FAA issued Advisory Circular (AC) 120-68: Pilot Records Improvement Act of 1996 to provide guidance material for air carriers, operators and pilots regarding compliance with the PRIA statute. AC 120-68 contains information for FAA inspectors as well as for air carriers and operators that must comply with PRIA requirements. The FAA has developed and made available on its website additional PRIA-related information to further facilitate compliance with the statutory requirements.^[26]

Under PRIA, and as described in AC 120-68, every request for records pursuant to PRIA involves three parties: The potential employer, the past employer, and the pilot-applicant. When an individual seeks employment as a pilot for an air carrier, the hiring air carrier initiates the process to request and receive all relevant records as required under PRIA. The hiring air carrier completes its part of the forms for requesting records from current and past employers, the FAA, and the NDR, and the pilot-applicant completes the necessary forms to provide written consent for the release of his or her PRIA-related records before the hiring entity can send the records requests forward to the appropriate respondent(s). The pilot-applicant's completion of these forms satisfies the PRIA requirement that a pilot receive written notice that a request for his or her records was made. A pilot-applicant is also entitled to a copy of all records provided to the hiring carrier under PRIA.

4. History of the Pilot Records Database

a. Pilot Records Database Aviation Rulemaking Committee

In response to the mandate of Sec. 203 of Public Law 111-216, the FAA Administrator chartered the PRD Aviation Rulemaking Committee (ARC) on February 3, 2011.^[27] The purpose of the ARC was to assemble a broad cross-section of entities involved in pilot records and safety to develop recommendations for the FAA on the best way to implement an electronic PRD. Participants included representatives from the aviation industry, professional associations, organized labor, safety organizations, as well as FAA representatives.

Specifically, the ARC examined where the data for the PRD should be maintained; what information should be kept in the new database; who would have access to the information and what methods would be used to make the information accessible; methods for the timely transfer of relevant information to the database on an ongoing basis; methods to safeguard the data; establishing a written consent/release from liability process; developing a common process for air carriers to handle disputes by pilots concerning the accuracy of PRD entries; developing common definitions and terms for PRD users; determining a suitable structure for data tables to maintain training, qualification, employment action, and NDR records required by this legislation; and methods to initially load the database with historical records.

The PRD ARC submitted a final report to the Associate Administrator for Aviation Safety on July 29, 2011. A complete copy of the report, including ARC recommendations, dissenting recommendations, and a list of participating organizations has been placed in the public docket for this rulemaking.^[28]

The ARC focused primarily on proposals for implementing the PRD in a manner that would most enhance aviation safety for the flying public, but did not necessarily consider whether the recommendations would meet congressional intent. Thus, the ARC made certain recommendations contrary to the plain language of the PRD Act. The ARC Report also explicitly stated that certain congressionally mandated requirements were left to be interpreted by the FAA at a later date.^[29]

b. Electronic Database Development

In advance of this rulemaking, the FAA determined it prudent to move its PRIA records to an electronic pilot record database, also called the PRD.^[30]

In September 2015, the FAA initiated a phased approach to establish the PRD. During the initial implementation stages, the PRD will only include FAA records, as required by PRIA. Upon adopting a final rule in this rulemaking proceeding, the PRD would include not only the FAA records mandated under PRIA, but also the employer records mandated by Section 203 of the PRD Act.

The phased approach was developed to provide direct, uninterrupted access to FAA pilot records to air carriers and operators required to comply with PRIA. The FAA records, such as pilot certification and failed practical tests, would be available for an air carrier or operator to make an informed hiring decision. Implementing the FAA records portion of the PRD is an important step in fulfilling the objective that Congress articulated in the PRD Act. It allows the FAA to have at least one portion of the database ready for use on when the rule is effective and to allow air carriers to familiarize themselves with that process.

c. Related Actions to the Pilot Records Database

Following the Colgan Air 3407 accident, the FAA issued a Call to Action on Airline Safety and Pilot Training, which began with a meeting on June 15, 2009 (including participants from the FAA, airlines and labor organizations), to specify concrete actions and to elicit voluntary commitments from industry.^[31] As a result of that meeting, the FAA published an Airline Safety and Pilot Training Action Plan ^[32] that included a number of key initiatives including a focused review of air carrier flight crewmember training, qualification, and management practices. In addition, the FAA released an updated version of the PRIA AC 120-68E on July 2, 2010, incorporating elements from the Plan.

The FAA also published an Information for Operators (InFO) ^[33] on August 15, 2011 (InFO 11014), advising all operators that conduct operations in accordance with part 91, 121, 125, and 135 to indefinitely retain any records on pilots employed in those operations.^[34] The FAA published a second InFO on March 13, 2014 (InFO 14005), further reminding the regulated entities of their responsibility to retain pilot records dating back as early as August 1, 2005.^[35] To verify that air carriers and operators that employ pilots are retaining pilot records in accordance with PRIA for future inclusion in the database, the FAA issued a national policy notice titled “Pilot Records Retention Responsibilities Related to the Airline Safety and Federal Aviation Administration Act of 2010.” The notice directed FAA inspectors to verify that air carriers or operators have a system in place to retain records that must be reported for inclusion in the database, as required by the statute.^[36]

Section 203 of the PRD Act directed the FAA to submit a statement to Congress by February 2012, and at least once every three years thereafter for a periodic review of the statutory requirements. The statement to Congress must contain any FAA recommendations to change the records required to be included in the database or the reasons why the FAA does not recommend any changes to the records referenced in Section 203. In its September 2015 report to Congress the FAA indicated that it had initiated a rulemaking project entitled Pilot Records Database, Regulation Identifier Number (RIN) 2120-AK31. In its most recent report to Congress, in February 2018, the FAA indicated that it did not recommend any changes in the records referenced in Section 203, until it considers public comments on the Pilot Records Database rulemaking proposal.

III. Discussion of the Proposal

The FAA proposes new part 111, Pilot Records Database, to codify requirements for accessing and evaluating records, reporting of records, and pilot rights and responsibilities. Subpart A contains general requirements. Subpart B contains requirements for database access and evaluation of records. Subpart C contains requirements for record reporting. Subpart D contains pilot rights and responsibilities. Subpart E contains requirements regarding compliance with PRIA during the PRD transition.

A. Persons Affected by the Proposal

The PRD Act requires air carriers to access and evaluate the records maintained in the PRD pertaining to an individual pilot before allowing that individual to begin service as a pilot. The PRD Act also requires air carriers, as well as any other person that employs an individual as a pilot of a civil or public aircraft, to report information concerning the pilots they employ for inclusion in the database.^[37]

The FAA is proposing in subpart C of part 111 to require all part 119 certificate holders, 91K fractional ownership programs, persons authorized to conduct air tour operations in accordance with § 91.147, persons operating a corporate flight department, covered governmental entities conducting public aircraft operations and employing pilots, and trustees in bankruptcy to enter relevant data on individuals employed as pilots into the PRD. As of May 30, 2018, there were an estimated 5,006 air carriers and operators employing pilots that would be required to report pilot records to the database. Any other entity that employs pilots, such as pilot schools or training centers, would not be required to enter data into the PRD.

1. Air Carriers and Other Employers Required To Assess and Review

The FAA proposes to require all air carriers ^[38] who have been issued a part 119 air carrier certificate and are authorized to conduct operations under part 121 or part 135 to comply with the pilot employment background check requirements of subpart B of the proposed rule. The PRD Act requires air carriers and certain other persons to report information to the FAA for inclusion in the PRD and requires air carriers to access the PRD for purposes of evaluating all pertinent information pertaining to an individual before allowing that individual to begin service as a pilot.

Additionally, the FAA proposes that part 125 and 135 operators, 91K fractional ownership programs, and air tour operators, be required to access and evaluate an individual's records in the PRD before making a hiring decision. The FAA determined that it was in the interest of safety to include these employers, in addition to air carriers, for several reasons. Operators that conduct operations under part 125, 135 or 91K are currently required to review pilot records in accordance with PRIA. The FAA interprets the PRD Act to require an enhancement to safety. The FAA does not believe that it would enhance safety to remove this requirement with respect to this population of employers.

This proposed rule would also include air tour operators within the scope of its applicability. Although PRIA does not require these operators to review pilot records, the FAA believes that extending this requirement to air tours operators is consistent with the safety philosophy underpinning the PRD Act. Air tour operators share some similarities with aspects of part 121 and part 135 air carriers. These operators are responsible for the carriage of passengers for hire and the PICs who conduct these operations must hold at least a commercial pilot certificate. Given the similarity to air carrier responsibilities to the traveling public, the FAA believes that it is in the interest of safety to require air tour operators to review records in the PRD prior to making a hiring decision.

While the requirement for air carriers to conduct a pilot employment background check before allowing an individual to begin service as a pilot would be mandatory, the FAA proposes to permit voluntary compliance with the provisions for access and evaluation of records in subpart B for other operators that are required to report data to the PRD. If an operator opts into the requirements of subpart B for evaluating an individual's records in the PRD, the operator would be required to comply with all other aspects of subpart B of the proposal and would be included in those persons affected by the proposal.^[39] Although not mandated by the PRD, the FAA believes that other potential employers of pilots could benefit from accessing the information in the PRD prior to making a hiring decision. If an employer chooses to opt in, it would be required to comply with all of the regulations in subpart B to protect pilots' privacy rights and the integrity of the database.

As mentioned previously, currently, PRIA is often used as a tool for validating the record of a pilot rather than as a research, screening, or selection tool prior to actually hiring the pilot because of the length of time the PR