Pilot Records Database

Federal RegisterMar 30, 2020

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DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration

14 CFR Parts 91, 111, 121, 125, and 135

[Docket No.: FAA-2020-0246; Notice No. 20-05]

RIN 2120-AK31

Pilot Records Database

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.

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.

49 U.S.C. 44703(i)(4)(B)(ii). Also, § 44703(h)(4) states that “the Administrator and air carriers shall maintain pilot records described in paragraphs (1)(A) and (1)(B) for a period of at least 5 years.”

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,

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.

Hereafter referred to as “air tour operators” for the purposes of this preamble.

Currently, the FAA, air carriers and other operators maintain pilot records pursuant to the statutory requirements contained in the Pilot Records Improvement Act (PRIA).

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.

49 U.S.C 44702(h)

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.

Subject

Current PRIA requirements

The PRD Act

NPRM

Accessibility

Physical and Electronic

Electronic

Electronic.

Affected Entities

Part 119 certificate holders, governmental entities conducting public aircraft operations, air tour operators, and fractional ownership programs

Part 119 certificate holders, governmental entities conducting public aircraft operations, and other persons

Part 119 certificate holders, air tour operators, fractional ownership programs, corporate flight departments, and governmental entities conducting public aircraft operations.

FAA Records

Current airman certificates with associated type ratings and limitations; current airman medical certificate, including any limitations; and summaries of FAA legal enforcement actions resulting in a finding by the Administrator of a violation that was not subsequently overturned

Current airman certificates with associated type ratings and limitations; current airman medical certificate, including any limitations; any failed attempt of an individual to pass a practical test required to obtain a certificate or type rating under 14 CFR part 61; and summaries of FAA legal enforcement actions resulting in a finding by the Administrator of a violation that was not subsequently overturned

Air Carrier and Operator Records

Records maintained in accordance with appendices I and J to part 121, section VI paragraph (A) (drug and alcohol testing records); § 121.683, § 125.401; and § 135.63(a)(4) (crewmember records), excluding records related to flight time, duty time, and rest time, disciplinary action records not subsequently overturned; separation from employment records; national driver register records, as required in accordance with PRIA's implementing statute

Records maintained in accordance with § 120.211(a) (drug and alcohol testing records); § 121.683, § 125.401, and § 135.63(a)(4) (crewmember records), excluding records related to flight time, duty time, and rest time; disciplinary action records not subsequently overturned; separation from employment records; national driver register records

Records proposed to be reported to the FAA in accordance with § 111.215 (drug and alcohol testing records); § 111.220 (training, qualification, and proficiency records); § 111.225 (disciplinary action records); § 111.230 (separation from employment records); § 111.240 (verification of motor vehicle driving record search and evaluation); and § 111.265 (historical record reporting).

National Driver Register Search

Required in accordance with Public Law 104-264, Section 502

Required

Required.

User Fee

Industry established

Reasonable charges by the FAA for processing requests and furnishing copies

Fee per record accessed by an air carrier or operator.

Timeframe of Records Documented

Previous five years from the date of request as required in accordance with Public Law 104-264, Section 502

(1.) Part 121 and 135 air carrier records dating back to August 1, 2005 through the life of the pilot;

(2.) Part 125 and 135 operator records dating back to August 1, 2010 through the life of the pilot; and,

(3.) FAA records dating back to August 1, 2010, through the life of the pilot

(1.) Part 121 and 135 air carrier records dating back to August 1, 2005, through the life of the pilot or 99 years, whichever is less;

(2.) Part 125 and 135 operator as well as 91K fractional ownership records dating back to August 1, 2010 through the life of the pilot or 99 years, whichever is less; and,

(3.) FAA records dating back to August 1, 2010, through the life of the pilot.

Timeline for Records to be Reported to a Hiring Air Carrier or Operator

Within 30 days as required in accordance with Public Law 104-264, Section 502

Promptly

Reported to the PRD within 30 days of the reportable event and available for review immediately.

Compliance Schedule

In effect

Established by the FAA Administrator

(1.) One year after the publication of the final rule—report present and future records; access and evaluate records in the PRD, subject to a user fee.

(2.) Two years after the publication of the final rule—report historical records.

(3.) Two years and 90 days after the publication of the final rule—sunset of PRIA.

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,

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.

For this preliminary analysis, the FAA assumes the effective date of the final rule to be in calendar year 2021 with the 10-period of analysis of future regulatory impacts to be 2021 through 2030.

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.

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.

On August 1, 2010, Congress directed the Administrator to establish the PRD (Pub. L. 111-216, Section 203 (49 U.S.C. 44703(i)).

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)

was enacted in 1997 in response to a series of air carrier accidents attributed to pilot error.

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.

Public Law 104-264, § 502; 110 Stat. 3259. The requirements of PRIA were initially codified at 49 U.S.C. 44936, and PRIA became effective on February 7, 1997. Substantive amendments were made to PRIA on December 5, 1997 (Pub. L. 105-142; 111 Stat. 2650) and April 5, 2000 (Pub. L. 106-181; 114 Stat. 61). Currently the PRIA requirements are codified at 49 U.S.C. 44703(h) and (j).

Congressional Committee report dated October 31, 1997 (H.R. Rep. 105-372), explained certain clarifying amendments made to PRIA in Public Law 105-142 (H.R. 2626; Dec. 5, 1997), listed the following accidents as evidence supporting the enactment of PRIA: Continental Airlines flight 1713 (November 15, 1987); Trans-Colorado flight 2286 (January 19, 1988); AV Air flight 3378 (February 19, 1988); Aloha Island Air flight 1712 (October 28, 1989); Scenic Air flight 22 (April 22, 1992); Express II flight 5719 (December 1, 1993); and American Eagle flight 3379 (December 13, 1994). All of these operators held a part 119 air carrier certificate, and most of these flights were operated under part 135, except Continental Airlines flight 1713, which was operated under part 121.

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.”

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.”

See

NTSB Report AAR-04/03 (Adopted October 13, 2004) at page 47, which can be obtained at

http://www.ntsb.gov/investigations/AccidentReports/Reports/AAR0403.pdf.

See

NTSB Report AAR-04/03 at page 43.

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.”

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.

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.

The January 27, 2005, safety recommendation letter may be accessed at

http://www.ntsb.gov/safety/safety-recs/RecLetters/A05_01_02.pdf.

The purpose of flight checks is to validate certificates and ratings—they were not originally developed to inform hiring decisions. Accordingly, the FAA has not conducted research to document their relationship to general pilot performance.

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.”

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.”

See

NTSB Report AAR-10/01 (adopted February 2, 2010) at page 155, which can be obtained at

http://www.ntsb.gov/investigations/AccidentReports/Reports/AAR1001.pdf.

See

NTSB Report AAR-10/01 at page 155.

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.”

By letter dated February 21, 2014, the NTSB reported that “pending implementation of the PRD, including guidance about when comments are needed in PRD entries, Safety Recommendation A-10-17 remains classified Open—Acceptable Response.”

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

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,

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.

Including subsequent updates and revisions.

See

AC 120-68F, paragraph 3-8, Note.

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).

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.

Referred to as “the PRD Act” for the remainder of this NPRM.

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,

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.”

§ 121.683; paragraph (A), of section VI of appendix I to part 121 and paragraph (A), of section VI of appendix J to part 121;1 § 125.401; and, § 135.63(a)(4).

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.”

§ 44703(h)(7).

The records furnished in response to a PRIA request are commonly used as a “validation” tool, rather than a research, screening, or selection tool.

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.

Report from the PRD ARC, page 12. Available at

https://www.faa.gov/regulations_policies/rulemaking/committees/documents/media/PRDARC-2032011.pdf.

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.”

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.”

§ 44703(h)(5).

§ 44703(h)(11).

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.

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.

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.”

§ 44703(h)(6).

§ 44703(h)(10).

§ 44703(h)(9).

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.

See http://www.faa.gov/pilots/lic_cert/pria.

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.

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.

The PRD ARC charter may be found at

http://www.faa.gov/regulations_policies/rulemaking/committees/documents/media/PRD.ARC.cht.20110203.pdf.

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.

A copy of the complete final ARC report will be placed in the docket for this rulemaking and is also available at

https://www.faa.gov/regulations_policies/rulemaking/committees/documents/index.cfm/document/information?documentID=312.

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.

https://www.faa.gov/regulations_policies/rulemaking/committees/documents/index.cfm/document/information?documentID=312.

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.

The FAA was appropriated “under section 106(k)(1) of the PRD Act and codified at U.S.C. 44703(i)(14), a total of $6,000,000 for fiscal years 2010 through 2013” in order to establish a pilot records database.

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.

As a result of that meeting, the FAA published an Airline Safety and Pilot Training Action Plan

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.

A final report, dated January 2010, “Answering the Call to Action on Airline Safety and Pilot Training” is available at:

http://www.faa.gov/news/updates/?newsId=60224&print=go.

https://www.faa.gov/news/fact_sheets/news_story.cfm?newsId=11125.

The FAA also published an Information for Operators (InFO)

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.

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.

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.

An InFO message contains valuable information for operators that should help them meet administrative requirements or certain regulatory requirements with relatively low urgency or impact on safety. InFOs contain information or a combination of information and recommended action to be taken by the respective operators identified in an InFO.

http://www.faa.gov/other_visit/aviation_industry/airline_operators/airline_safety/info/all_infos/media/2011/InFO11014.pdf.

http://www.faa.gov/other_visit/aviation_industry/airline_operators/airline_safety/info/all_infos/media/2014/InFO14005.pdf.

A copy of national policy notice N8900.279, “Pilot Records Retention Responsibilities Related to the Airline Safety and Federal Aviation Administration Act of 2010,” may be viewed at

http://www.faa.gov/documentLibrary/media/Notice/N_8900.279.pdf.

The statutory cite can be found at 49 U.S.C. 44703(i)(4)(B)(ii)(II).

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.

The PRD Act explicitly excludes the Armed Forces and National Guard, including reserve components, from the information reporting requirements.

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

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.

As defined in 49 U.S.C. 40102, “air carrier” means a citizen of the United States undertaking by any means, directly or indirectly, to provide air transportation (

i.e.

foreign air transportation, interstate air transportation, or the transportation of mail by aircraft).

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.

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.

With one exception—other employers opting into subpart B would not have to complete the NDR search and verification.

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 PRIA process takes. The ARC, in its report, asserted that immediate electronic access to information would be a benefit of an electronic database in lieu of continuing the paper-based PRIA process.

The FAA is requesting comment on whether employers believe that PRD will be utilized as a validation tool after an initial hiring decision has

been made, or whether, because of the ease of electronic access, it will be utilized earlier in the decision-making process. The FAA requests that commenters consider the cost, in terms of employee time and processing fees (discussed further in the RIA), when responding to this question.

Report from the PRD ARC, p. 72,

available at https://www.faa.gov/regulations_policies/rulemaking/committees/documents/media/PRDARC-2032011.pdf

2. Operators Employing Pilots That Must Enter Data

The express language of the PRD Act requires pilot records from any air carrier and “other person” to be included in the PRD. While the Act did not define “other person”

or otherwise define who other than air carriers should be subject to the reporting requirements, the FAA interprets “other person” to mean those “other persons” that employ pilots that would likely be air carrier pilots or prospective air carrier pilots at some later date. The principal reason for this interpretation is that the PRD Act mandates that air carriers, but not other employers, access the data for hiring decisions. Accordingly, a reasonable interpretation of the PRD Act, read in its entirety, is that the reporting requirements are limited to those records that would assist with air carrier hiring decisions. The FAA does not interpret the PRD Act to require other types of employers to incur the burden of submitting documents to the PRD that are either unlikely to ever be accessed by a hiring air carrier, or that would not assist with an air carrier's hiring decision.

Hereinafter these “other persons” are referred to as “operators employing pilots” or “operators.”

To determine which employers, other than air carriers, should be subject to the proposed reporting requirements, the FAA reviewed its implementation of PRIA, the requirements of the PRD Act, the relevance of the records kept by other employers of pilots (who are not air carriers) to air carriers in making hiring decisions, and the characteristics of the different types of requisite flight time that pilots accumulate before seeking employment with an air carrier.

The FAA also studied the following operating characteristics in comparison to part 121 air carrier operations to determine which operators should be subject to the proposed rule: The operating conditions of the flight (including the complexity of the operation and the type and complexity of the aircraft flown), the applicable operating rules, the applicable recordkeeping rules, and the progress and career path of the pilot as affected by the July 15, 2013

Pilot Certification and Qualification Requirements for Air Carrier Operations

final rule.

78 FR 42324. Prior to this rulemaking, pilots obtained a large portion of their flight hours serving as SIC in part 121 operations.

Individuals desiring a career as a professional pilot for an air carrier can seek experience with other operators to obtain the requisite flight time. These “gateway operators” will be utilized with greater frequency in the future as a result of FAA's

Pilot Certification and Qualification Requirements for Air Carrier Operations

final rule. That final rule significantly increased the total number of required flight hours from 250 to 1,500 for part 121 air carrier second-in-command pilots to hold an airline transport pilot (ATP) certificate.

The FAA recognizes that an individual may acquire flight time various ways to be eligible for a position with a part 121 air carrier. However, because it is now more time-intensive to receive the requisite experience for operations with a 121 carrier than before, the FAA expects the traditional path toward a pilot position at a part 121 air carrier will continue to be used, as opposed to more alternative methods of gaining experience, which are discussed below. To identify the typical paths for a pilot to acquire the minimum aeronautical experience to serve as a PIC in part 121 operations, the FAA examined the various aircraft operations and associated operating rules through which pilots can acquire flight time towards an ATP.

Certain pilots can obtain a restricted privileges ATP certificate with fewer than 1500 logged hours.

Similar operating conditions to a part 121 air carrier include operating large, turbine-powered airplanes, carrying passengers from a departure to an arrival point, and required training and checking events as a function of regulation or pilot certification. The FAA further considered which operations are subject to recordkeeping requirements on pilot training and performance similar to part 121 operations by using information identified in GAO reports, the Department of Transportation's Office of Inspector General (DOT OIG) reports, data from internal FAA databases, and current FAA regulations.

The FAA believes that the most useful information for the database is captured by applying the record reporting requirements to the operators that most likely serve as a gateway for pilots to accumulate the required aeronautical experience necessary for an ATP to conduct in air carrier operations. As a result of these analyses, the FAA identified categories of employers that serve as gateway operators—that is, operators that often serve as points on the career path of a pilot for an air carrier or other passenger-carrying operation. The FAA identified gateway operators based on its expertise and experience with those pilots and their typical employment pathways and is not based on a quantitative analysis of different employment pathways for obtaining an ATP. The FAA proposes to define “operators employing pilots” that would be subject to PRD reporting requirements to include the following groups that employ one or more individuals as pilot flight crewmember(s): (a) Each person that holds an operating certificate issued by the FAA in accordance with part 119 of this chapter; (b) each person that conducts air tour operations pursuant to a letter of authorization issued in accordance with 14 CFR 91.147; (c) each person that conducts operations pursuant to a fractional ownership program authorized in accordance with subpart K of part 91 of this chapter; (d) each person that operates a corporate flight department, as defined in part 111, pursuant to the general operating and flight rules in part 91 of this chapter; (e) each person that conducts operations of public aircraft; and (f) a trustee in bankruptcy. This proposal largely is consistent with existing PRIA requirements, with the addition of corporate flight departments.

The FAA considered extending the record-reporting provisions of the proposal to other civil aviation operators who employ pilots such as part 91 operations utilizing smaller general aviation aircraft, other part 91 business aviation operations involving a single aircraft, part 133 external load operators, part 137 agricultural operators, and research and testing flights conducted by aircraft manufacturers.

However, the FAA decided not to extend the PRD reporting provisions to these operators because they are not “gateway” employers to air carriers. Since pilots employed by the previously-referenced operators do not often transition to careers as pilots in passenger-carrying operations, the FAA questions the value that this information would provide relative to the attendant regulatory burdens it would impose on those operators. The FAA invites comments, with supporting documentation, about whether PRD reporting should extend to part 133 and 137 operators.

3. Overview of Affected Entities

a. Part 121 Air Carriers

Part 121 prescribes rules governing the domestic, flag, and supplemental operations conducted by persons holding an air carrier or operating certificate issued under part 119.

Part 121 air carriers operate multi-engine, transport category airplanes with more than nine passenger seats or airplanes having a payload capacity of more than 7,500 pounds between scheduled service cities within the United States, as well as internationally originating or terminating in the United States, while carrying passengers and freight. These air carriers are held to the highest safety standard by the FAA, as required by 49 U.S.C. 44701-44716, to ensure the public's safety in air travel. As of May 30, 2018, the FAA has issued 70 part 119 certificates to persons authorizing operations under part 121.

14 CFR 121.1(a).

b. Part 135 Air Carriers And Operators

Part 135 air carriers and operators operate aircraft that are configured for 30 or fewer passengers or 7,500 pounds of payload or less. The operators comprising the commuter and on-demand industry segment range from a company with one pilot and one aircraft to a company with over 600 aircraft. Operations include short flights to small regional airports, cross-country domestic flights to larger cities, or international flights. As of May 30, 2018, the FAA had issued part 119 air carrier or operating certificates to 2,011 persons authorizing operations under part 135, compared to the 70 air carriers operating under part 121.

The operations conducted in accordance with part 135 provide a wide array of operating environments for pilots, including airspace complexity and operational tasks, similar to those encountered in operations conducted in accordance with part 121. Pilots serving in the following part 135 operations must also hold an ATP certificate prior to acting as pilot-in-command:

(1) Commuter operations using multiengine airplanes with nine or fewer passenger seats (Scheduled 135);

(2) on-demand operations using airplanes with 10 or more passenger seats; and

(3) turbojets.

c. Part 125 Operators

Part 125 operators conduct operations not involving common carriage, with airplanes having a seating capacity of 20 or more passengers or a maximum payload capacity of 6,000 pounds or more.

As of May 30, 2018, 71 persons have been issued certificates or letters of deviation authority (LODAs) authorizing operations under part 125.

Non-common carriage is defined in 14 CFR 110.2 as meaning “an aircraft operation for compensation or hire that does not involve a holding out to others.”

While part 125 operators do not offer air transportation services to the general public, the type of operation conducted in accordance with part 125 is similar in many respects to part 121 and 135 air carriers and part 135 operations, including airspace complexity and operational tasks. Additionally, a part 125 operator must ensure that specific crewmember training is conducted and recorded in accordance with § 125.401.

In addition, § 125.401 requires records to be kept concerning the release of employment or physical or professional disqualification of any flight crewmember for at least 6 months.

Like part 121 air carriers and part 135 air carriers and operators, part 125 operators would be required to access and evaluate the information contained on an individual in the database, pursuant to subpart B of proposed part 111. The proposal for part 125 operators is consistent with the FAA's current guidance for compliance with PRIA. That guidance advises part 125 operators to obtain an individual's pilot records prior to making a hiring decision.

The FAA is proposing to consider part 125 letter of deviation (LODA) holders as corporate flight departments subject to the reporting requirements of the PRD. Part 125 LODA holders are part 125 operators who do not have to comply with all aspects of part 125 because they hold a letter of deviation authority and many operate in a manner that is similar to corporate flight departments. The FAA believes those operators should be required to comply with the reporting aspects of PRD, though not the review elements unless they elect to opt in. The FAA addresses LODA holders as a part of the corporate flight department discussion in section f.

d. Part 91, Subpart K Fractional Ownership Programs

Part 91, subpart K (“part 91K”) fractional ownership programs are issued management specifications (MSpecs) by the FAA and have recordkeeping requirements similar in most respects to part 135 operators. The part 91K fractional ownership program provides both entry-level pilots and highly experienced pilots access to many aircraft with operating environments similar to part 135 air carriers, especially the type of aircraft operated by a part 91K fractional ownership program. The aircraft are typically multi-engine, turbine-powered fixed wing aircraft that require the pilot in command (PIC) to hold an airline transport pilot (ATP) certificate during part 91K operations.

However, the PIC can hold a commercial pilot certificate with an instrument rating if operating any other aircraft. As of May 30, 2018, there were 8 part 91K programs, employing about 3,364 pilots, flying general aviation business aircraft. Many part 91K fractional ownerships also hold part 119 air carrier or operating certificates.

See

14 CFR 91.1053(a)(2)(i).

A pilot's ability to fly at the ATP certificate level and demonstrating this proficiency during evaluation is an important regulatory distinction between commercial and private pilot certification. Specifically, these pilots gain experience as a PIC of a turbine-powered airplane in operations closely aligned with part 121 operations, such as the carriage of passengers in technologically advanced aircraft through complex airspace, as discussed in more detail previously. Thus, part 91K programs are more likely than other part 91 operations, such as private/recreation flying, personal business, or banner towing operations, to facilitate a pilot's career progression to a part 121 air carrier due to the similarity to part 121 operations.

Additionally, the FAA also proposes to update the process required to be completed by a part 91K program manager in accordance with current § 91.1051 to include compliance with proposed part 111. The FAA proposes to amend § 91.1051 to require that the pilot safety background check include the records maintained in the PRD. A part 91K program manager would be required to comply with the requirements of a pilot safety background check by requesting an individual's record in the PRD, as well as obtaining relevant information on the individual's aeronautical experience. This amendment would provide regulatory relief to 91K program managers and former employers because they would be able to obtain certain pilot records from the PRD instead of requesting them from the pilot's previous employers.

e. Section 91.147 Air Tour Operators

An air tour operator is an individual or company that holds a letter of authorization (LOA) to conduct air tours

within a defined geographic location.

Air tour operators, which share some similarities with aspects of part 121 and part 135 air carriers, generally maintain useful and reliable information on pilots serving in these operations. Like air carriers, these operators are responsible for the carriage of passengers and the PICs who conduct these operations must hold a commercial pilot certificate or higher.

In this regard, air tour operators provide a means by which pilots may acquire significant flight time in a short timeframe while operating in an environment with similarities to air carrier operations. Air tour operators often employ commercial pilot certificate holders who ultimately pursue a career as a pilot with a part 121 or part 135 air carrier.

As of May 30, 2018, the FAA has issued 1,111 LOAs to operators in order to conduct air tours. Many of the LOAs have been issued to existing part 119 certificate holders.

See 14 CFR 61.133, Commercial pilot privileges and limitations.

In order for a pilot to operate an aircraft for an air tour operator, that pilot would be provided with training in the authorized aircraft, airspace, and procedures in conducting the air tour to maintain a safe operation.

The training provided, however, is likely to be less robust than an air carrier's training and, as such, fewer data points exist from which an air tour operator can glean information in order to determine a pilot's capability. As a result, reviewing prior employer and FAA records could be beneficial to air tour operators and, by extension, to the traveling public. Therefore, the FAA is proposing to require all air tour operators to comply with the access and evaluation requirements of subpart B of part 111 as well as enter data on the performance of an individual employed as a pilot into the PRD in accordance with subpart C of part 111.

The FAA requires a responsible person to be named on the application for authorization to conduct air tours and provide a purpose and details of the air tour. The responsible person must ensure that the flight is conducted for compensation or hire while using a powered aircraft within a pre-established area of airspace. Additionally, the air-tour operator must comply with any other requirements listed in the FAA-issued LOA.

f. Corporate Flight Departments

The FAA is proposing to require all corporate flight departments to enter data on the performance of an individual employed as a pilot into the PRD in accordance with subpart C of part 111 of the proposed rule. The FAA is proposing to define a corporate flight department as a person that operates: (1) A fleet (two or more) of standard airworthiness airplanes, (2) that require a type rating under 14 CFR 61.31(a), and are operated in furtherance of, or incidental to, a business, pursuant to the general operating and flight rules of part 91 or airplanes being operated under a deviation authority issued under § 125.3.

Corporate flight departments are typically owned and operated by a company and offer the opportunity for company executives and employees to reach customers in a short period of time. The FAA believes that corporate flight departments typically operate airplanes that provide both entry-level pilots and experienced pilots access to many type-rated airplanes that offer similarities to those operated by air carriers. The operations within these departments are structured in ways that resemble many aspects of the air carrier environment including aircraft type, airspace complexity, and the carriage of passengers. As a result, the FAA believes that the records maintained by corporate flight departments would be useful for air carriers to review prior to making a hiring decision on a pilot.

During the analysis of information on corporate flight departments, the FAA encountered several significant issues in determining the number of corporate flight departments that would be affected by the proposed regulations. First, corporate flight departments generally conduct operations under part 91 since these operators are not engaged in common carriage. Second, the FAA would not be able to determine the number of pilots affected by the proposal as the total number of corporate flight departments was unknown. Thus, the FAA could not rely on its own internal data to substantiate the number of companies that have corporate flight departments.

Several business aviation industry advocates, such as the General Aviation Manufacturers Association (GAMA) and the National Business Aviation Association (NBAA), provided data on specific segments of the business aviation industry, which is comprised of about 14,960 individuals, companies, and corporations. Large corporate flight departments often employ pilots that continue in their career progression to work at an air carrier, whereas this is less common for single-aircraft corporate flight departments. Therefore, the FAA decided to extend the proposed reporting requirements to only corporate flight departments with a fleet of two or more aircraft, as a result of weighing the impact of including all business aviation entities against the usefulness of the records for air carriers in making a hiring decision.

The FAA examined the data on the number of business jets and large turbine powered airplanes in the national airspace system. The FAA analyzed the data from the Civil Aviation Registry to differentiate the type of aircraft registered in the United States by type certification and standard airworthiness certificates. All large airplanes (weighing more than 12,500 pounds) or that are turbojet-powered were included in the analysis. The FAA further analyzed the number of aircraft in this group to determine the number of persons that own more than one aircraft, or a fleet of aircraft (excluding single aircraft operators) since these operators likely have multiple flight crews assigned to their aircraft.

In the FAA's history of overseeing a variety of types of certificate holders, the FAA has learned that a pilot's employment with a small operator, such as one with only a single aircraft, does not typically lead to employment with a certificate holder that conducts operations with many passengers. As a result, the minimal amount of pilot records from a small operator is unlikely to result in information beneficial for making an air carrier hiring decision. In contrast, for corporate flight departments with a fleet of two or more aircraft, it is common for insurance companies to require annual formal training at a part 142 training center. Because insurance providers often require formal flight training provided by a part 142 flight school, high quality records will most likely be available to document each pilot's performance. These types of pilot records that large corporate flight departments hold contain precisely the data that hiring air carriers will find beneficial to use when making hiring decisions. Additionally, many single aircraft operators only have one crewmember. These operators would likely only be reporting records on

themselves

on an individual basis and might not complete formal flight training. Furthermore, many might not have the financial resources to justify formal flight training when it is not required. In these cases, both the records available and the number of associated pilots would be minimal; in general, the modest amount of records available might not be helpful to operators. Therefore, the FAA concludes only those operators who have a fleet of at least two aircraft should be subject to the proposed reporting requirement.

The FAA further believes that a part 125 LODA holder is similar in nature to corporate flight departments. A part 125 LODA holder is an operator who holds a deviation from §§ 119.23 and 125.5 (the requirements to hold an operating

certificate and OpSpecs). The FAA is proposing that part 125 LODA holders be considered corporate flight departments that are subject to the reporting requirements of the PRD. These operators use U.S.‐registered civil airplanes that have a seating configuration of 20 or more passengers, or a maximum payload capacity of 6,000 pounds or more when common carriage is not involved. As of May, 2018, there were 57 LODA holders. Historically, part 125 LODA holders have been regulated most similarly to part 91 operators and are typically used in business aviation, serving some of the same functions as corporate flight departments. Accordingly, the FAA proposes to treat them like corporate flight departments.

The FAA is seeking comment, with supporting documentation, on current corporate, flight departments' safety practices and invites commenters to respond to the following:

• Would it be beneficial to require corporate flight departments operating a single aircraft to report to PRD? Why or why not?

• Do corporate flight departments maintain substantive records documenting pilot training, evaluation, performance, disciplinary actions, or release from employment or other professional disqualification? If so, for how long are such records typically retained?

• Would the proposal create a disincentive for corporate flight departments to create and retain records that are not otherwise mandated by federal regulation?

g. Governmental Entities Conducting Public Aircraft Operations

The FAA has limited oversight of governmental entities conducting public aircraft operations (PAOs), though such operations must comply with the regulations applicable to all aircraft operating in the National Airspace System (NAS) (

i.e.,

part 91 general operating flight rules). The government entity conducting the PAO is responsible for oversight of the operation, including aircraft airworthiness and any operational requirements imposed by the government entity. Although a government entity conducting a PAO is not required to use an FAA-certificated pilot, many government entities require their pilots to hold an FAA pilot certificate and undergo recurrent training throughout their employment with the operator.

As a result, pilot records maintained by an operator of public aircraft would relate to part 61 currency requirements and would be similar to those maintained by holders of a part 119 operating certificate authorized to conduct operations in accordance with part 125. The FAA recognizes that some operators of public aircraft contract with part 135 or certificated air carriers but they are accounted for in those sections of the proposed rule and regulatory analysis. A search of FAA records found 322 current entities conducting PAO as of May 30, 2018.

Referenced 14 CFR 61.3(a).

The FAA maintains records related to known entities conducting public aircraft operations that are conducted by local, State, and Federal governments. These records are maintained in the FAA's Safety Performance Analysis System (SPAS).

Pursuant to the PRD Act, the FAA is proposing to require government entities that conduct PAO to enter records maintained by the entity on individuals who hold an FAA pilot certificate and conduct PAO. These requirements are proposed in subpart C. Pilots holding an FAA pilot certificate and employed by operators who perform public aircraft operations may seek subsequent employment with an air carrier. Pilots who do not hold an FAA pilot certificate do not typically proceed directly to further employment with air carriers, because in order to progress to further employment with an air carrier they would need to first obtain the relevant pilot certificate and then likely work for a “gateway” operator to an air carrier. Accordingly, the FAA sees limited utility in maintaining these records and do not interpret § 203 of the PRD Act to include them.

The FAA seeks comment on: (1) The level of data that would be provided to the PRD by government entities on individuals employed as pilots for PAO; (2) the type of records maintained by PAOs; and (3) cost to government entities to provide these records.

h. Trustees in Bankruptcy

The PRD Act also requires that a “trustee in bankruptcy for the air carrier or person” continue to provide records to the PRD in event that an air carrier or other operator files for bankruptcy.

Therefore, the FAA is proposing in subpart C to 14 CFR 111.270 to require trustees in bankruptcy, or the debtor-in-possession if no bankruptcy trustee is appointed, to continue to comply with the reporting requirements for the PRD. This practice is consistent with other safety-based regulations that continue to be enforced while an air carrier or other operator is in bankruptcy. The FAA is proposing to require the individual accessing the database to be able to have their identity validated prior to the FAA granting PRD access, consistent with minimum requirements for database access.

See

49 U.S.C. 44703(i)(2)(B).

When an air carrier or operator is in bankruptcy and maintains its certificate, the bankruptcy does not alter any regulatory or statutory requirements. However, if a hiring air carrier is unable to obtain records because an individual's previous employer ceases to exist or is otherwise unable to submit pilot records, the PRD Act provides that as long as the hiring air carrier makes a “documented good faith attempt” to access the information and the Administrator provides “written notice” of this lack of information, the pilot may begin service with the air carrier.

The FAA proposes to codify this good faith exception in § 111.115.

Id.,

at § 44703(i)(12).

4. Entities That Will Not Be Required To Report Information

As previously explained, the FAA interprets the PRD Act requires the following employers of pilots to report information about those pilots: 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. The FAA does not interpret the PRD Act to require the following entities to report information to the PRD:

• Part 91: Aerial Advertising (Banner Towing), Aerial Photography Operators, Airshow Performers and Acrobatic Teams, Business Aviation Operators (other than operators of a fleet of airplanes that require a type rating under 14 CFR 61.31(a)), Glider Operations, Pipeline Patrol, Commercial Hot Air Balloon Operators; and charitable sightseers under 14 CFR 91.147(k)

• Part 129: Foreign Air Carriers

• Part 133: External Load Operators

• Part 137: Agriculture Operators

• Aircraft and Equipment Manufacturers

• Living History Flight Experience Exemption Holders

Most of these entities have historically not been subject to recordkeeping requirements, or operating rules and limitations comparable to air carriers.

The operators listed in the preceding paragraph represent those that would be

unlikely to generate useful records for a hiring air carrier. For example, not many of their records would be subject to PRD reporting; this would create an unnecessary burden on these operators to participate in PRD reporting. In addition, even if they have records, those records would be of limited value to hiring employers. In the FAA's experience, most pilots whom these operators employ are unlikely to advance to employment with an air carrier. If they did want to eventually work for an air carrier, however, the FAA's experience shows that they will, over the course of their careers, progress to employment with another “gateway” operator required to enter records into the PRD, before becoming eligible to seek employment with an air carrier. Additionally, the entities excluded from the requirements to enter data offer stark differences from the part 121 air carrier environment. Many aircraft owners operate their own aircraft, but some hire a pilot to fly their aircraft for them. For many of these owners who also operate their own aircraft, the operation is purely for pleasure or perhaps in furtherance of a business. While some of these pilots are trying to acquire flight experience to move into aviation as a career, many have no intentions of moving into the industry as a commercial pilot. Since PRD is intended to capture the airman history for those pilots seeking employment with aviation employers (part 135/121, for example), these types of operations are not the group targeted by the statute. Additionally, many pilots performing operations such as these are operating at the floor of the FAA risk assessment. Thus, their proficiency and recordkeeping requirements are low. Beyond passing the practical test (private pilot for example), they are only required to complete a flight review with an instructor every two years. This is an informal review, not a practical test, and is normally only documented as an endorsement in the pilot's logbook if it was satisfactory. The only consistent data the FAA would obtain as required records would be flight reviews and perhaps recency of takeoffs and landings. These sorts of details are routinely evaluated by the hiring air carrier during the logbook reviews. PRIA and PRD was designed to make records available to the hiring air carrier which were historically difficult to obtain. Of all the record sources to be reviewed by the hiring air carrier, the pilot logbook is the most accessible and considered a fundamental item reviewed in the hiring process.

Under this proposal, foreign air carriers are excluded from the reporting requirements. The FAA assumes that Congress intended the PRD requirements to apply only to U.S. citizens because it used the term “air carrier”, which is defined in 49 U.S.C. 40102 and includes a U.S. citizenship requirement. The agency further assumes that “or other person” also applies only to U.S. citizens because, if Congress had intended for the reporting requirement to apply to non-citizens, it would have included the term “foreign air carrier” which is also found in 49 U.S.C 40102.

The FAA invites comments on whether data from excluded entities would provide information relevant to the evaluation of a pilot candidate for employment.

5. Other Sources of Pilot Records

The FAA also considered applying the record reporting requirement in the proposed rule to training providers and institutions of higher education. These groups were not addressed by the Act because they do not actively employ individuals to serve as pilots in civil or public aircraft operations.

A review of the sources of air carrier pilots (parts 121 and 135) by the GAO indicates that the majority of pilots hired by air carriers accumulated their hours by working as a flight instructor (CFI).

Pilots selected as flight instructors provide training to pilot applicants for an FAA certificate or rating. Since individuals employed as flight instructors to provide flight training are not employed for purposes of operating an aircraft, but for instructing or “teaching”, the FAA does not find that the Act contemplates the reporting to the PRD by training providers. Therefore, the FAA is not proposing to require compliance by parts 61 or 141 pilot schools or part 142 training centers with part 111.

United States Government Accountability Office report titled “Aviation Workforce: Current and Future Availability of Airline Pilots,” p. 23,

available at https://www.gao.gov/assets/670/661243.pdf

(February 2014).

Similarly, the FAA does not believe the PRD Act extends to institutions of higher education (where pilots obtain flight training) because these institutions do not employ individuals to serve as pilots in commercial operations. As a result, the FAA is not proposing to require institutions of higher education that hold an LOA from the FAA to report records to the PRD. Individuals obtaining the training for an FAA certificate or rating are not employed as pilots but instead are paying for flight instruction, or paying the instructors or evaluators employed by the institutes of higher education.

B. FAA Records To Be Reported to the Pilot Records Database

The PRD Act requires the PRD to contain certain records maintained by the FAA. The FAA must include records concerning current airman certificates, associated ratings, and any limitations to the certificate or ratings. Also, the PRD must contain a pilot's current medical certificate including any limitations, documentation of a failed attempt of an individual to pass a practical test required to obtain a certificate (since August 2010) or type rating under 14 CFR part 61, and summaries of legal enforcement actions resulting in a finding by the Administrator that was not subsequently overturned.

The above records are currently maintained by the FAA in a manner consistent with the PRIA statute. However, since the implementation of PRIA, the FAA has received many inquiries from air carriers on how to obtain additional FAA information such as accident and incident information and other drug and alcohol test records.

The FAA also received recommendations from the DOT OIG on any additional information that should be provided to an air carrier through a PRIA request.

The FAA proposes in § 111.140 to include the previously-mentioned records in the PRD, as well as FAA accident and incident information and certain drug and alcohol testing records. The additional information, including FAA records as identified in § 111.140, would provide a holistic historical record of a pilot, when combined with the records proposed to be reported to the PRD by air carriers and operators that previously employed the individual as a pilot. These records are described in greater detail in the text that follows.

The FAA receives on average 177,533 airmen requests for records from air carriers per year via the FOIA. This average was deviated from requests accumulated from 2009-2014.

The final report was published on August 20, 2015.

https://www.oig.dot.gov/sites/default/files/FAA%20Pilot%20Records%20Database%20Progress%20Final%20Report%5E8-20-15.pdf.

Specifically, the DOT OIG recommended that as part of the FAA response to a request for records, the FAA should incorporate a written notification to air carriers that additional records may be available through FOIA and Privacy Act requests.

For the appropriate FAA records to be contained in the PRD, the proof-of-concept system included several interfaces with current FAA systems: The Comprehensive Airmen Information System, Enforcement Information System, and Accident/

Incident Data System. Additionally, the FAA would enter certain records related to drug and alcohol testing into the PRD. Any error discovered in FAA data must be addressed by the Flight Standards District Office or the Drug Abatement Division that originated the record. Any changes to the source record would be reflected in the PRD.

1. Comprehensive Airmen Information System

The Comprehensive Airman Information System (CAIS) contains key information derived from airman certificate applications, temporary airman certificates, notices of disapprovals, disapproved applications, enforcement actions, correspondence, requests for replacement certificates, letters of verification of authenticity, and other information that supports the issuance of airman certificates. To ensure that the PRD contains the most accurate FAA certificate information on pilots, CAIS certificate data would be provided to the PRD on a nightly basis. Providing CAIS data directly responds to the PRD Act mandate to include this information in the PRD.

CAIS would provide the PRD with the most recent date of a medical exam, medical class, and medical limitations (if any). The pilot certificate information that would be provided through the PRD would include the level of pilot certificate and privileges; associated ratings such as category, class, and type of aircraft; and, information on any limitations to those certificates and ratings. The date of issuance of the individual's pilot certificate and the certificate number would also be reported to the PRD from CAIS.

The verification of an individual's current qualifications would be helpful in preventing falsification, which would limit the possibility of an operator hiring an individual who does not meet the requirements for a particular operation. This verification will be particularly helpful to air carriers that receive a high volume of pilot applications. However, verifying an individual's current qualifications would not provide an air carrier or operator with sufficient information alone. The individual's qualifications, historical pilot certificate action, and previous operator's records are also necessary to provide an accurate history.

2. Enforcement Information System

Consistent with the PRD Act and the FAA's implementation of PRIA, the FAA is proposing to include information on an individual's closed enforcement actions.

The enforcement action information would be uploaded to the PRD at regularly scheduled intervals via an interface with the FAA's internal Enforcement Information System (EIS). The EIS contains information about individuals, investigations, legal counsel information, and FAA surveillance activity, all related to enforcement. The EIS receives all enforcement and compliance data directly from FAA Aviation Safety Inspectors and FAA legal counsel. The FAA assigns a data steward for each component of the EIS—the person who is responsible for reviewing data integrity and accuracy and applying retention and data quality procedures. This information is maintained in accordance with Federal guidelines, and when applicable, the FAA maintains a policy that addresses data retention and destruction within the EIS.

The PRD Act specifically requires summaries of legal enforcement actions resulting in a finding by the Administrator that was not subsequently overturned.

a. Summaries of Legal Enforcement Actions

The FAA proposes to allow an air carrier access information from the EIS about closed enforcement actions on an individual through the PRD for the purpose of evaluating a pilot-applicant's record. If an individual has a record or multiple records in the EIS, an air carrier will be able to review the following information from a closed enforcement record: The FAA's report number, violation date, final action date, description of the subject's violation (including regulation and regulation description that was indicated in the enforcement), and the final sanction imposed on the subject with the corresponding certificate number.

The FAA does not propose to allow access to information regarding a pending case or event that was self-disclosed by an individual through a voluntary safety reporting program such as an Aviation Safety Action Program (ASAP). No ASAP record would be released through the PRD as described in Section E of this document, titled Exclusion of Voluntary Aviation Safety Program Records.

b. Expunction of Legal Enforcement Actions and Airman Records

In accordance with long-standing FAA policy, many historical airman and enforcement records have been expunged.

The policy provides that, generally, records of legal enforcement actions involving suspension of an airman certificate or a civil penalty against an individual be maintained by the FAA for five years before being expunged. Records are not expunged if, at the time expunction is due, one or more other legal enforcement actions are pending against the same individual. The outcome of the most recent legal enforcement action determines when the older action will be expunged (

e.g.,

if a pilot's certificate was suspended in May 2000, but received another suspension in March 2005, both actions would be expunged in March 2010, if no other enforcement actions were brought against the individual through March 2010). Actions resulting in revocations are never expunged.

The FAA adopted a policy to expunge records of certain closed legal enforcement actions against individuals. This policy applies to both airman certificate holders and other individuals, such as passengers. FAA Enforcement Records; Expunction Policy. 56 FR 55788. (Oct. 29, 1991). A copy of this policy has been placed in the docket for this proposed rulemaking.

Following the enactment of the PRD Act, the FAA examined whether the expunction of certain enforcement actions could continue in light of the data collection, data retention, and FOIA protection requirements of the PRD. Under existing policy, the FAA expunges an enforcement record in EIS, only the information identifying the subject of the enforcement action is deleted (name, address, certificate number, etc.); however, the PRD Act obliges the FAA to “maintain all records entered into the [PRD] pertaining to an individual until the date of receipt of notification that the individual is deceased.” As FAA records are part of the “records entered into the [PRD] pertaining to an individual,” the FAA interpreted the PRD to require that a pilot's records could not be expunged until the FAA has received notice of an individual's death. Accordingly, the FAA published a notice (76 FR 7893, February 11, 2011) temporarily suspending its expunction policy.

However, the FAA has continued to expunge legal enforcement cases closed with no violation found and administrative actions as the PRD statute does not require the entry of these records into the PRD.

The FAA's interpretation notwithstanding, the PRD ARC expressed concern that provisions of the PRD Act conflict with the Privacy Act requirements to maintain correct, accurate, relevant, and timely individual pilot records. The PRD ARC believed that because the records in the PRD are to be maintained solely for the purpose of assisting an air carrier in making a hiring decision, the requirement to maintain enforcement actions should not impact the

previously established record-retention and expunction policies regarding FAA enforcement records. As a result, the ARC recommended that the FAA reinstate the 5-year expunction policy or, in the alternative, expunge records from all FAA databases other than PRD after five years.

The FAA does not believe the ARC recommendation is consistent with the statutory requirement that the FAA maintain the records in the PRD for the life of the pilot. Therefore, the FAA is proposing to maintain its current suspension of the expunction policy that includes all relevant EIS records, as well as CAIS and Accident/Incident Data System (AIDS) records, in the PRD for the life of a pilot.

3. Accident/Incident Data System

The FAA proposes to include information from the Accident/Incident Data System (AIDS) to air carriers through the PRD. AIDS contains records of aircraft accidents and incidents occurring in the United States and those involving U.S.-registered aircraft outside of the United States. The information maintained in AIDS is not specifically referenced in the PRD Act but is available today to an air carrier via a Privacy Act (PA) request with the pilot's written consent. An air carrier may obtain a pilot's history of accidents and/or incidents, if any exist, upon request. The information obtained from a PA request responds to a standard question on air carriers, operators, state governments, and Federal government applications for employment.

The FAA proposes to include information from the AIDS in the PRD to streamline the request process for information that could assist in making a hiring decision. The FAA believes this data would permit an air carrier to receive important information on an individual pilot's history in a way that is more efficient for industry and the FAA because the air carriers would no longer have to submit privacy act requests in addition to conducting an evaluation with the data in the PRD. Furthermore, including the information from AIDS would facilitate the automated processing of PA requests for information, and permitting the FAA to utilize its resources more efficiently.

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

a. Pre-Employment Testing Records

The PRD Act requires air carriers and operators that seek to employ pilots to enter certain drug and alcohol records into the PRD for individuals employed as pilots. However, in the event that a violation occurs during a pre-employment test

and the air carrier does not hire the potential employee, the air carrier would not be able to enter those records and the FAA would have to enter them instead.

In accordance with FAA regulations for Drug and Alcohol testing, 14 CFR part 120, employers or their Medical Review Officer (MRO) are required to report to the Federal Air Surgeon any pilot or individual holding a part 67 medical certificate that violates the drug and alcohol testing requirements, including a pre-employment test. The FAA proposes to submit to the PRD those records of pre-employment drug or alcohol violations and refusals to submit to testing that are required to be submitted to the FAA by air carriers and other employers or their MRO. The inclusion of these records is significant because a violation of this type would render the individual unqualified to perform as a pilot. As a result, these records are directly relevant to an air carrier's hiring decision.

This is also true if the violation occurs while the pilot is acting in a safety-sensitive position while employed by an employer regulated by another operating administration of DOT. Title 49, Code of Federal Regulations section 40.25 requires review of whether applicants had a previous positive result or refusal at another DOT mode. Consistent with the PRD Act's requirement to include records that “[pertain] to the individual's performance as a pilot . . .” the FAA Drug Abatement Division, Special Investigations Branch will enter into PRD those records maintained by the FAA that show a positive drug and/or alcohol violation from an employer regulated by DOT. Under the provisions of 14 CFR part 120 and 49 CFR part 40, a future employer is prohibited from using those individuals in a safety-sensitive position until the return-to-duty process is completed.

Any drug and alcohol testing records created for an individual prior to the “PRD Date of Hire” (

i.e.,

pre-employment drug and alcohol testing, or refusal) would be entered into PRD by the FAA. Specifically, the dates of pre-employment verified positive drug test results and alcohol confirmation test results of 0.04 or greater, and refusals to submit to drug and/or alcohol testing are important to include into PRD because this information enables a hiring air carrier to determine if a pilot is qualified.

5. Part 107 Remote Pilot in Command Certificates

The PRD Act requires all air carriers to request and review records prior to allowing an individual to begin service as a pilot. The PRD Act applies to air carrier pilots irrespective of the type of aircraft they operate. As a result, the Act's requirements apply to pilots of unmanned aircraft systems (UAS) when those UAS are used in air carrier operations.

The FAA expects that in the future, air carriers and other operators that primarily operate sUAS might hire pilots with remote pilot in command certificates,

in combination with other FAA approvals, to serve as pilots-in-command of their sUAS. These certificates would be populated in the Pilot Records Database by the FAA for verification by a potential employer. The FAA expects air carriers and other operators that utilize UAS to comply with the regulations proposed herein when hiring pilots for such operations.

Under 14 CFR part 107, which governs civil small unmanned aircraft system (sUAS) operations, the person manipulating the controls of a sUAS is issued a remote pilot certificate with an sUAS rating.

C. Reporting Requirements of Historical Records Maintained by Air Carriers and Operators Employing Pilots

The PRD Act's requirements for reporting historical records to the PRD are twofold. First, the PRD Act requires employers (including air carriers and other covered employers) to report records generated after August 1, 2010. Second, air carriers (but not other covered employers) must report the records they are maintaining pursuant to § 44703(h)(4) of PRIA, which includes records generated on August 1, 2005 and later. Therefore, the FAA proposes to require air carriers authorized to conduct operations in accordance with parts 121 and 135 to provide records (also referred to as historical records) on each individual employed as a pilot since August 1, 2005, to the PRD. Other non-air carrier employers of pilots subject to the reporting requirements in this proposed rule would be required to report the records they generated as of August 1, 2010 for inclusion in the PRD. This requirement is not tied to PRIA, rather, it is a PRD-specific requirement, and is applicable to operators authorized to conduct operations in accordance with parts 125 and 135, as well as part 91K fractional ownerships.

The FAA does not propose to require air tour operators, corporate flight departments, and governmental entities conducting public aircraft operations to report

historical

information to the PRD. The historical records they would able to provide to the PRD would likely be inconsistent, particularly because any records they keep to document compliance with training requirements are not kept in accordance with a requirement from a specific regulatory part such as part 121, 135, or 125. In contrast, prospective records would conform to the reporting requirements in this rule. The burden for these small operators to input the minimal information they have would likely not be justified by any specific benefit these historical records would provide. Operators may upload any records they have on a voluntary basis.

The PRD Act requires that air carriers maintain certain records received from other employers in response to a PRIA request. For purposes of populating historical records into the PRD, the FAA proposes to require that air carriers submit their own historical documents which were generated in response to a PRIA request, but not those received from other employers via a PRIA request.

The FAA is interpreting the records referred to in subsection (h)(4) as those documents generated by an air carrier in response to a PRIA request, as opposed to those records received from another air carrier. As each air carrier and operator would be required to input its own historical records into PRD, an air carrier or other operator would not be required to enter records that it had received from another air carrier under PRIA. The FAA believes that this provides the least burdensome and non-duplicative requirements for entry of historical records into the PRD.

Upon enactment of the PRD Act, air carriers became responsible for the retention of records dated August 1, 2005 to the present. Also, on the date of enactment, operators and part 91K fractional ownerships became responsible for the retention of records dated on or after August 1, 2010. Therefore, the FAA is proposing in §§ 111.265 and 111.420 to require all air carriers authorized to conduct operations in accordance with part 121 or part 135 to provide specific records kept in accordance with PRIA on or after August 1, 2005, through one year after the publication of the final rule. One year compliance is proposed so that all affected employers have time to adopt use of the system. The FAA is likewise proposing to require commercial operators authorized to conduct operations in accordance with parts 125 and 135 as well as part 91K fractional ownerships to provide specific records kept in accordance with PRIA on and after August 1, 2010, through one year after the publication of the final rule. The remaining persons affected by the proposed rule—entities conducting public aircraft operations, air tour operators, and corporate aviation operators—are not required to comply with these historical record reporting requirements. These persons may voluntarily enter historical records into the PRD.

The documentation date of records previously maintained in accordance with PRIA by air carriers, operators, and fractional ownerships will be referred to as “historical records” for the remainder of the proposal.

The FAA proposes in § 111.420 that any required historical record documented on August 1, 2010 through one year after the publication of the final rule would be required to be entered into the PRD within two years of the publication of the final rule. The proposed extended timeline for the entry of historical records would provide air carriers and operators time to enter the applicable records for each pilot employed during the documentation dates previously explained.

Table 2 illustrates the historical record reporting provision of the PRD Act for records that have been previously documented by a part 119 certificate holder and operators employing pilots.

Part 125 operators operating under a LODA would not be required to report historical records.

Table 2—Overview of Proposed Historical Record Reporting by Population

Historical records maintained in accordance with PRIA

Record documentation date

Parts 121 and 135 air carriers

Parts 125 and 135 operators and part 91K fractional

ownerships

Other operators employing pilots

Records predating 8/1/2005

N/A

N/A.

Records dating from 8/1/2005 through 7/31/2010

Must Report

N/A

N/A.

Records dating from 8/1/2010 through initial proposed compliance date

Must Report

Voluntary Reporting Only.

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

As previously discussed, the FAA interprets the persons affected by the PRD Act's historical record provision to include part 119 certificate holders and fractional ownerships only. PRIA identifies specific regulations that require a part 119 certificate holder to retain documents regarding the training, qualification, and performance of a pilot in order to demonstrate compliance with the appropriate regulations.

PRIA excludes flight and duty time recordkeeping requirements.

In order to assist part 119 certificate holders and operators in their compliance with PRIA, the FAA issued AC 120-68 to create a standardized process and best practices for obtaining a pilot's records and determining whether a company is required to comply with a PRIA request.

The FAA also acknowledges that historical records are maintained in a variety of media, including digital, paper-typed, paper-handwritten, microfiche, and scanned. Not all of these media are easily transferrable to an electronic database. Furthermore, the ARC indicated that “smaller air carriers may lack the equipment and resources required to convert records to an electronic format.” Based on required inspections of part 119 certificate holders by FAA inspectors, the FAA finds that approximately 12% of part 119 certificate holders maintain historical records electronically.

FAA inspections required in accordance with national policy notice entitled “Pilot Records Retention Responsibilities Related to the Airline Safety and Federal Aviation Administration Act of 2010”; results were collected through December 12, 2015. An electronic recordkeeping system is defined by the FAA as “A system of record processing in which records are entered, electronically signed, stored, and retrieved electronically by a computer system rather than in the traditional “hardcopy” or paper form.” FAA Order 8900.1, Vol 3, Ch 31, Sec 1, Para 3-2983(L). This definition could include, for example, both scanned copies of records as well as structured data sets.

Since part 119 certificate holders maintain historical records in many formats on a variety of media, the FAA is proposing that the historical records be submitted to the PRD through a limited number of data points entered into a freeform text box which is an on-screen rectangular frame into which a person types text. In this case, the text will be specific data points, described in the paragraph that follows. The general data fields that would be required to match an employed or previously employed pilot with a record in the PRD would include: The pilot's name, certificate number, and dates of employment. A part 119 certificate holder would also be required to enter the following records that must be maintained per current regulations:

• Training and qualification event data maintained in accordance with 14 CFR 121.683, 125.401, and 135.63(a)(4), except flight, duty and rest time;

• Available drug and alcohol testing records maintained in accordance with 14 CFR 120.111 and 120.219(a) and 49 CFR 40.333(a);

• Disciplinary action record that was not subsequently overturned; and

• Separation from employment record that was not subsequently overturned.

The FAA does not currently regulate, collect or review this information, but expects employers would have disciplinary action data on a minimal number of pilots employed, depending on their internal retention timelines for employment records.

The

FAA believes that by clearly defining the specific historical data elements in this proposed rule, part 119 certificate holders would be able to refine the information about pilots included in the PRD that hiring air carriers find the most relevant to hiring decisions, rather than entering all data maintained on an individual pilot throughout his or her career. Additionally, by limiting the set of historical data elements, the FAA would be harmonizing the amount of records each pilot would have in his or her respective PRD file, which also would promote efficiency for air carrier review of those records. The historical record data elements discussed in Table 3 would not differ substantively from the data elements collected for a pilot's present and future records.

The pilot data element is only required if the subject has been administered any aspect of the data element. The pilot data element is not applicable (and therefore not required) if the pilot has not attempted the data element.

All proposed data elements required to be reported for each pilot employed by a part 119 certificate holder are included in Table 3. As previously stated, the amount of data recorded for each pilot is expected to vary. For example, some pilots may have multiple dates for completion of training events depending on their length of employment.

Table 3—Data Elements Required To Be Entered Into a Pilot's Historical Record

Training and qualification events required by FAA regulation

Pilot data element

Date(s) completed

YYYYMMDD

Aircraft type

(model designation as listed in FAA order 8900.1)

Duty position

(PIC or SIC)

Result

satisfactory (complete), unsatisfactory, or incomplete

Indoctrination

Related Aircraft Differences

Initial

Upgrade

Transition

Differences

Requalification

Operating Experience

Line Operating Flight Time

Reestablish Recency of Experience

Line Check

Continuing Qualification

Recurrent

Qualification

Drug and alcohol testing violations, if applicable

Test result

Date(s) for each confirmed test and/or violation

YYYY/MM/DD

Drug Test Verified Positive

Refusal to Submit to Drug Testing

Alcohol Confirmation Test Result of 0.04 or Greater

Refusal to Submit to Alcohol Testing

Return-to-Duty and Follow-up Negative Result

Disciplinary action record data, if applicable

Type of action

Date of event

YYYY/MM/DD

Aircraft type

(model designation as listed in FAA order 8900.1)

Duty position

(PIC or SIC)

Date of disciplinary action

YYYY/MM/DD to YYYY/MM/DD

Summary of event

(256 character limit in free text)

Written Warning

Suspension

Separation from employment data, if applicable

Type of action

YYYY/MM/DD

Aircraft type (model designation as listed in FAA order 8900.1)

Duty position

(PIC or SIC)

Date of disciplinary action

YYYY/MM/DD to

YYYY/MM/DD

Summary of event (256 character limit in free text)

Termination

Resignation

N/A

Since many air carriers and operators have maintained records in accordance with PRIA in varying degrees of detail, the FAA is proposing that part 119 certificate holders enter the specific data elements listed in Table 3. The data elements would be entered into an unlimited character, free text field for inclusion in the PRD. The FAA is proposing two methods for part 119 certificate holders to report present, future, and historical data elements to the PRD. Each employer could opt to use either of the following acceptable methods:

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

The first option is to transmit data electronically using an automated utility. The data would be transmitted via an automated utility such as XML through the PRD application, and the PRD application would be able to extract the relevant information for each pilot and enter the information into the appropriate fields in the PRD. An air carrier would need to code its XML utility to meet the requirements of the PRD XML user guide to utilize the application's batch upload capability.

Upon publication of the final rule, an XML user guide will be provided to PRD users.

The amount of time an air carrier or other operator employing pilots spends transmitting data to the PRD using such an automated utility would depend on the user's internet connection, bandwidth, and volume of data being sent to the PRD. However, the automated utility would need to be confirmed compatible with the PRD.

3. Reporting Method Option 2: Manual Data Entry

The second method for air carriers and others employing pilots to transmit data to the PRD would be through direct manual data entry, using the same pre-established data field forms for each record type. The FAA expects that this method would only be used by those operators without the technical capability to use an automated utility such as an XML.

Under either method, each air carrier would be expected to complete a historical record for each pilot employed since August 1, 2005.

Each operator operating under parts 125, 135, or 91K fractional ownership would complete a historical record for every pilot employed since August 1, 2010. The FAA notes that even if pilots have retired, resigned, or were disqualified and replaced by other pilots, each pilot employed by an air carrier or operator would be required to have a record in the PRD, even if those pilots may never again be employed by an air carrier or operator. The FAA also notes that the agency does not have data on the exact number of historical records we expect to be submitted to the database regarding former pilots who are not currently employed.

Current FAA source data from the Safety Performance Analysis System and the National Vital Information Subsystem indicates that the number of pilots currently employed by a part 91 subpart K operator is 3,364, a part 121 air carrier is 82,131, a part 125 operator is 418, a part 135 air carrier/operator is 24,545 as of May 30, 2018. The Department of Transportation maintains the total number of pilots that have operated for the airlines (part 121) and commercial operations (91K, 125, and 135) dating back to 1999. The FAA does not maintain data on the number pilots that have been active since 2005 but that are not currently employed.

http://www.rita.dot.gov/bts/sites/rita.dot.gov.bts/files/publications/national_transportation_statistics/html/table_03_24.html.

The PRD Act requires that air carriers maintain records for five years after reporting them to the PRD.

The FAA is therefore proposing in § 111.420 of the proposed regulation that all historical records be maintained by the air carrier or operator for five years after being reported to the FAA for inclusion in the PRD, notwithstanding other applicable rules or regulations (

e.g.,

drug and alcohol testing records) pertaining to retention of such records.

44703(i)(15)(C)(iii).

4. Alternative Solutions Considered

The ARC recommended that the FAA consider permitting various file formats for submission to the PRD. The ARC also highlighted many issues associated with uploading various file formats. The FAA considered other options for the form and manner in which historical records could be submitted to the PRD by air carriers and operators employing pilots. These alternative options included permitting the submission of records in portable document format (PDF), Joint Photographic Experts Group (JPEG), bitmap (BMP), or other similar electronic file formats; the submission of records using coded Extensible Markup Language (XML); or the submission of specified information through direct manual data entry.

While the submission of records in PDF, JPEG, BMP, or other similar electronic file formats may be preferred and expedient for some air carriers and operators, the FAA rejected this option for multiple reasons. Primarily, the FAA notes that the ARC highlighted a crucial issue with the contents of historical records. The ARC indicated that many historical records maintained by the aviation industry contain information “far outside” the scope of the PRD such as disciplinary records unrelated to pilot performance. The acceptance of such file formats would allow a large volume of extraneous data to be submitted to the PRD, possibly including protected or sensitive information on individuals or an air carrier/operator.

This would create an unnecessary burden for the FAA because the FAA would be required to review each individual pilot record and redact information to determine whether it included protected or sensitive information. The FAA also considered requiring the individual pilots who are the subjects of any files uploaded to the PRD to review each record prior to an air carrier retrieving them or shortly after being uploaded. Either way, this variance and non-standardization could result in disagreements between pilots and employers, resulting in the FAA acting as an arbitrator in each instance.

Furthermore, the FAA would need to ensure that the correct record is placed in the appropriate individual pilot “folder” and that the documents uploaded to the system contain information that is legible. Unfortunately, there is no assurance that PDF, JPEG, BMP, or other similar file formats would be usable by air carriers. If an air carrier's computer system could not support the file format or voluminous records maintained over the life of a pilot, the files would be rendered useless. Variables such as the age and condition of the original record, the darkness of the text on the page, and the legibility of any handwriting on the page could create a document that provides little or no value to the PRD, with no assistance to an air carrier or operator employing pilots during the hiring decision. In each circumstance, a delay in the availability of pilot records may result in an air carrier reviewing incomplete data to make a hiring determination. The missing information may be deemed significant by the hiring air carrier.

Foremost, the PRD would serve as a tool to assist an air carrier or other operator in making hiring decisions in a manner that positively impacts safety, not to serve as a repository for all existing information maintained by employers of pilots, or as a replacement for existing air-carrier recordkeeping systems. By allowing scanned documents or photographs of a pilot's record to be transmitted to the PRD, the FAA would be unable to assure that each record submitted contained only the types of data relevant to the hiring decision. Additionally, including information that is not related to safety in an FAA database meant to inform an air carrier's hiring decision is not within the FAA's statutory authority. The PRD Act also includes a requirement to protect pilots' privacy, and including extraneous information would not be consistent with that statutory charge.

5. Public Input on Historical Records

Commenters are strongly encouraged to provide supporting data when responding to the following questions, including data supporting anticipated costs associated with compliance with this proposal and to provide sample records demonstrating the level of detail captured in historical records dating back to August 1, 2005, for each record type (

e.g.,

training, checking, release from employment). Such sample records should not provide any personally identifiable information about employees or other pilots in the docket; rather, only provide specific details on record format and content of the historical records. The FAA asks commenters to respond to the following questions with regard to any historical records maintained by air carriers and operators employing pilots in accordance with 49 U.S.C. 44703(i)(4)(B)(ii):

1. What level of detail (

e.g.,

training completion dates or the pilot's entire training record including each activity/task and outcome) do operators keep for historical pilot records dating back to August 1, 2005 and how accurately do the data requirements outlined in Table 3 reflect that level of detail?

2. Are air carriers or operators maintaining other relevant records used by an air carrier or operator in making a hiring decision that the FAA has not considered or not chosen to include as

a historic data requirement in this proposal?

3. What amount of effort do employers perceive will be involved in reviewing the historic data and structuring it into an XML format? The FAA would also welcome information from any employers that do not intend to use the back-end XML solution.

4. How quickly do air carriers and other operators believe they will be able to migrate their PRIA records into the PRD?

5. Would it be helpful from either a pilot or a hiring employer's perspective to include a text box (with a limited character count) for a pilot to be able to provide a narrative explanation of further information concerning a historical record? Would this also be helpful for present-day records?

In addition, the FAA seeks input from the public on alternative systems, processes, or technological solutions for efficient and accurate reporting of historical records.

D. Reporting Requirements: Present and Future Records

With respect to current and future records, the PRD Act requires the FAA to establish an electronic database to capture certain records provided by employers.

First, the PRD Act requires employers to report to the FAA for inclusion in the database certain pilot training, checking, disciplinary and separation from employment records maintained pursuant to §§ 121.683, 125.401 and 135.63(a)(4) and certain drug and alcohol testing records maintained in accordance with §§ 120.111(a) and 120.219(a).

Second, the PRD Act requires employers to report certain categories of other records “pertaining to an individual's performance as a pilot” to the extent relevant records may be kept by the employer.

Third, the PRD Act requires employers to report “information concerning the motor vehicle driving record of the individual” obtained “from the chief driver licensing official of a State” pursuant to 49 U.S.C. 30305(b)(8), which governs the NDR.

Air carriers and operators that employ pilots will be referred to throughout this section as employers.

See

§ 44703(i)(2)(B)(i).

See

§ 44703(i)(2)(B)(ii).

See

§ 44703(i)(2)(C).

Details on the data the FAA proposes to require employers to enter into the PRD consistent with the requirements of the PRD Act are summarized below and described in the subsections that follow. The data includes the following on pilot employees:

• The completion of certain training, qualification, proficiency and competency events;

• Other pilot training, qualification, proficiency or competency events kept by the employer;

• Drug and alcohol testing records maintained in accordance with the FAA's drug and alcohol testing regulations;

• Final disciplinary actions; and

• Final separation from employment actions.

The FAA proposes in § 111.250 to implement these present and future record reporting provisions one year after publication of the final rule to give covered employers time to fulfill the requirements of this proposed rule. Each action this proposed rule would require employers to enter after this time would be entered within 30 days of either the PRD hire date or the beginning of service. The FAA proposes to define “PRD hire date” as the first date on which the pilot is expected to begin any form of company-required training or any other duties assigned by an air carrier or other operator employing pilots.

At any time between the effective date of the final rule and one year after the publication of the final rule, an air carrier may begin entering present and future records into the PRD; however, the date on which the air carrier or operator begins entering the records into the PRD is the date the air carrier begins compliance and must remain in compliance with the rule. At that point, all records from prior to the first day of compliance would be considered historical records and all records from the first date of compliance and after would be present and future records. The FAA will note this unique date, as well as the air carrier or operator, for auditing compliance.

Part 119 certificate holders and fractional ownerships would be required to begin accessing and evaluating records in the PRD one year after publication of the final rule. Part 119 certificate holders and fractional ownerships, as well as any operators opting into the evaluation provision of part 111, would be required to access and evaluate an individual's PRD records

and

request PRIA records from current and former employers until all required air carriers and operators comply with the historical record reporting provision of part 111. This duplicative requirement would be temporary; the sole purpose is to avoid any lapse in PRIA records that were kept during the transition, which, as stated previously would conclude by two years after publication of the final rule.

A summary of the compliance periods for reporting records and accessing for purposes of evaluation is provided in Table 4.

Air carriers, other operators and participating operators may neither enter records into the PRD nor access the PRD for non-FAA records until the effective date of the final rule.

Table 4—Proposed Compliance Timelines for PRD

Action

Compliance period

Applicable record dates

Present and Future Record Reporting

By One Year from the Publication Date of the Final Rule

A date determined by the air carrier or operator during the compliance period; however, once the records begin to be entered into the PRD, compliance is mandatory.

Historical Record Reporting

By Two Years from the Publication Date of the Final Rule

Beginning on August 1, 2005 or August 1, 2010, as applicable, through the date determined by the air carrier or operator when present and future records begin to be reported to the PRD.

Accessing the PRD for Purposes of Evaluating Records

By One Year from the Publication Date of the Final Rule

All records documented in the PRD and a request for records to current and/or previous employers under PRIA.

By Two Years from the Publication Date of the Final Rule

All records documented in the PRD.

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

As previously stated, the PRD Act requires air carriers to keep records pursuant to specific provisions of title 14 (§§ 121.683, 125.401, or 135.63(a)(4)), but also includes a more general provision that requires the reporting of certain categories of records “pertaining to an individual's performance as a pilot” by employers for inclusion in the PRD. This provision requires air carriers to report records concerning: (1) The training, qualifications, proficiency or professional competence of an individual; (2) any disciplinary action taken with respect to an individual that was not subsequently overturned; and (3) any release from employment or resignation, termination or disqualification with respect to employment. These reporting requirements specifically extend to any other records that are kept by an employer (even if the record is not explicitly required to be kept by a provision in 14 CFR). However, as provided in the PRD Act, only those records in each of these categories that “pertain to pilot performance” would be reported for inclusion in the PRD.

The FAA proposes to define the term “records pertaining to pilot performance,” consistent with the agency's interpretation of this phrase in PRIA, as meaning “[r]ecords of an activity or event specifically related to an individual's completion of the core duties and responsibilities of a pilot to maintain safe aircraft operations, as assigned by the employer and established by the FAA.”

See

FAA's Office of the Chief Counsel legal interpretation to Lorenzon, dated September 12, 2014. A copy of this legal interpretation has been placed in the docket for this proposed rulemaking.

Records related to pilot performance are not limited solely to events arising out of the pilot's demonstration of proficient flying skills (

i.e.,

when the pilot is seated at the controls of an aircraft) and the demonstration of compliance with FAA regulatory requirements.

A pilot's duties and responsibilities to ensure safe aircraft operations includes demonstrating adherence to certain established company procedures during all aspects of an aircraft operation. Records of relevant events subject to the reporting requirements would also include certain events that occurred on the ground pre-flight or post-flight (

e.g.,

conducting aircraft exterior pre-flight and post-flight inspections, visual icing inspections, drug and alcohol violations) in connection with a flight operation. Moreover, the duty to maintain safe aircraft operations includes ensuring the safety of crewmembers, passengers, cargo, the aircraft and the operating environment.

Therefore, the proposed definition would extend to both FAA-established requirements and certain standards set by the employer that reflect activity that is linked to the statutory requirement that the database include records pertaining to the individual's performance as a pilot.

Id.

The FAA considers certain documentation to be unrelated to an individual's performance as a pilot and, therefore, beyond the scope of the PRD Act mandate. As proposed, the database reporting requirements would exclude records maintained by an operator related to an individual's performance of job functions unrelated to serving as a flight crewmember during the operation of an aircraft (for example, an individual's performance of duties while serving as a flight engineer, instructor, or evaluator in simulators) or while an individual performed services that do not require a pilot certificate issued under part 61.

Additionally, in accordance with the PRD Act mandate, the FAA proposes in § 111.220(b) to exclude flight time, duty time, and rest records from the reporting requirement. The FAA is also proposing in § 111.220(b) to prohibit the entry of records containing physical examination data or any other protected personal medical information into the database. Exclusion of these records is directed by the PRD Act and other medical privacy laws. The PRD Act does require certain records to be kept concerning compliance with required medical examinations and information concerning release from employment due to physical disqualification. Inclusion of those documents in the PRD are discussed in the section regarding CAIS records and in the section regarding separation from employment, respectively. The FAA also notes that data concerning a pilot's active medical certificate would be reported by the FAA to the PRD, as required by the PRD Act, and previously discussed in this preamble. Records concerning disqualification are addressed further in the discussion titled “Separation from Employment”.

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

As previously indicated, the PRD Act requires employers to report to the FAA for inclusion in the database records kept pursuant to 14 CFR 121.683, 125.401, and 135.63(a)(4) and any records related to pilot performance specific to the training, qualifications, proficiency or professional competence of an individual.

See

49 U.S.C. 44703(i)(2)(B)(i).

Accordingly, the FAA is proposing in § 111.220(a) to require employers to enter records maintained in accordance with an established provision of FAA regulations related to pilot training, qualifications, and proficiency events, as well as certain additional records that may be kept voluntarily by covered employers.

All records maintained in accordance with an established training, qualification, proficiency, or professional competency regulation, such as those cited in the PRD Act, §§ 121.683, 125.401, and 135.63(a)(4) are referenced as “pilot training” records throughout the remainder of the section, unless otherwise noted.

As proposed in § 111.220(c), the minimum data required to be reported by all populations would include: The date of the event, aircraft type, duty position (PIC or SIC), training program approval part and subpart, the crewmember training/qualification curriculum and category as reflected in the FAA-approved or employer-mandated training program, the result of the action (satisfactory or unsatisfactory), and limited comments, if appropriate.

The FAA notes that some of this information could be populated in the database in advance by the FAA using information from the air carrier's user registration. Thus, the employer may not be required to enter all data points for each record reported. For example, the training program approval part in 14 CFR, which would be reported in accordance with § 111.220(c)(4) of the proposed rule, would likely be pre-filled, when possible.

Comments would be reported to the PRD in two circumstances. First, employers operating under parts 121, 125, or 135 would be required to report any comments from a check pilot associated with a qualification record. Check pilot comments would be accepted for parts 121, 125, and 135 users because pilots employed in these contexts are qualified by a check pilot.

By contrast, comments on the performance of a pilot that were documented by someone other than a check pilot, such as a flight instructor, would not be accepted in the database. The FAA believes that neither validation events

(in an Advanced Qualification Program,

or AQP) nor

instructor comments should be included in the PRD. First, the PRD Act does not require employers to report either of these types of data to the PRD. Second, the FAA does not believe that flight instructor notes would have sufficient value as a hiring tool to warrant including them. In the safety recommendation A-95-116, issued to the FAA on November 15, 1995, the NTSB asked the FAA to require all air carriers and their training facilities to maintain pertinent information on the quality of pilot performance, including subjective evaluations by individual instructors, check pilots, or FAA inspectors. The FAA responded that the inclusion of such information in a pilot's permanent record might make a training event a punitive experience rather than one in which a pilot could learn from mistakes. On January 3, 2000, the NTSB stated that the FAA had provided a convincing argument about the inappropriateness of subjective information in pilot records and the possibility that pilot training could be negatively affected.

Finally, the FAA believes that validation events and instructor comments should not be entered into the database to ensure standardization among all other training and certification regulations. Other training and certification regulations do not include validation events and instructor comments.

As per 14 CFR 135.337, a check pilot is “a person who is qualified to conduct flight checks in an aircraft, in a flight simulator, or in a flight training device for a particular type aircraft.”

Validation events are used during AQP pilot training to ensure a pilot can demonstrate the ability to meet specific training requirements. This ensures an appropriate level of competency has been achieved before advancing to related or more complex tasks outlined in the training program.

AQP allows for an alternative method for training and evaluating pilots based on

instructional systems design, advanced simulation equipment, and comprehensive data analysis to continuously validate curriculums. Requirements of subparts N and O that are not specifically addressed in the certificate holder's AQP continue to apply to the certificate holder and to the individuals being trained and qualified by the certificate holder.

https://www.ntsb.gov/_layouts/ntsb.recsearch/Recommendation.aspx?Rec=A-95-116.

The second instance in which comments would be accepted to the PRD would be when a certificate holder enters the category of pilot training and curriculum segment in which a pilot participated (

e.g.,

ground training or flight training). The results of each specific curriculum segment would be reflected in the database as satisfactory or unsatisfactory.

If the result is entered as unsatisfactory, a comment briefly explaining the unsatisfactory performance would be required for completion of that particular pilot training database record.

A satisfactory or unsatisfactory result may also be submitted to the PRD as a pass or fail, or complete or incomplete, since these terms may be used synonymously by certificate holders with approved training programs.

The FAA includes detailed guidance regarding examples of specific data elements that could be reported by each population in Draft AC 111, a copy of which has been placed in the docket for this rulemaking. The FAA notes that the proposal would not require the reporting of compliance with training and qualification events to a specific task level because particular training, qualification, and proficiency requirements may not be the same for every pilot depending on the training program and the duty position for which they are training to serve.

i. Part 121 Air Carrier Training Records

The FAA is proposing in § 111.220 to require: (1) Part 121 air carriers to enter into the PRD any record documenting an individual's compliance with FAA-required training, qualifications, and proficiency events kept in accordance with § 121.683, subject to limited exceptions proposed in § 111.220(b); and (2) employers to report any other records that may be kept documenting compliance with other requirements. Such records could be relevant to training, qualifications, proficiency, or professional competence, including check pilot comments that are not otherwise excluded by proposed § 111.220(b), as discussed previously.

All training and qualifying events conducted through an approved part 121 training program are required to be recorded in accordance with § 121.683, regardless of the subpart under which the training program is approved. Certificate holders that conduct operations under part 121 may train and qualify pilots in accordance with the provisions of current subparts N and O or under an Advanced Qualification Program (AQP) in accordance with subpart Y of part 121.

The record for a pilot trained in accordance with part 121, subpart Y, includes training records for the indoctrination curriculum, qualification curriculum, and continuing qualification curriculum. Because curricula vary, however, not every possible entry applies to each individual air carrier or operator.

AQP allows for an alternative method for training and evaluating pilots based on instructional systems design, advanced simulation equipment, and comprehensive data analysis to continuously validate curriculums. Requirements of subparts N and O that are not specifically addressed in the certificate holder's AQP continue to apply to the certificate holder and to the individuals being trained and qualified by the certificate holder.

See

§ 121.903(b).

ii. Part 125 Operator Training Records

As required by the PRD Act, the agency proposes in § 111.220 to require records maintained pursuant to § 125.401 by part 125 certificate holders to be reported to the PRD, except for flight time, duty time, and rest time. Additionally, § 111.220(a)(2) would require employers to report any other records that may be kept documenting compliance with other FAA- or employer-required events related to training, qualifications, proficiency, or professional competence, including check pilot comments. Part 125 letter of deviation (LODA) holders

would comply with the reporting requirements of a corporate flight department because LODA holders have been given relief from the recordkeeping requirements of part 125.

The FAA has issued 57 letters of deviation from § 119.23 and § 125.5 (the requirement to hold an operating certificate and Operation Specifications) to operators likely meeting the part 125 training requirements. These operators operate aircraft which are U.S.-registered civil airplanes with a seating configuration of 20 or more passengers or a maximum payload capacity of 6,000 pounds or more when common carriage is not involved. The number of operators holding a part 125 letter of deviation was retrieved for the FAA's Web Based Operations Safety System (WebOPSS) on May 30, 2018.

Part 125 operators are required to maintain records pursuant to § 125.401 demonstrating compliance with the prescribed qualification and testing requirements in subpart I of part 125. Furthermore, part 125 establishes testing requirements for pilot initial and recurrent qualification. An operator must maintain the records on the completion of a part 125 required test as well as a pilot's currency requirements referenced in § 61.51(a)(2). The FAA proposes to require employers to report all of the records described in this paragraph regardless of whether they are identified in part 125 or cross-references to part 61.

Additionally, pursuant to § 111.220(a)(2), the FAA is proposing to require all part 125 operators to enter records concerning an individual's performance as a pilot, including records that demonstrate compliance with recent flight experience and the applicable training and qualification regulations in part 125.

These records include initial and recurrent pilot testing requirements and instrument proficiency checks. In accordance with § 125.291(a), each PIC must pass a written or oral test on specific knowledge of the aircraft and operation. Additionally, a PIC must pass an instrument proficiency check in accordance with § 125.291(a) and complete an approach procedure in accordance with § 125.291(b). Pursuant to § 125.283, second in command pilots also must demonstrate compliance with

the recent instrument experience required in § 61.57. Check pilot comments designated in accordance with § 125.295 must also be included. The FAA proposes to require part 125 employers to report these records because they would provide information that is directly pertinent to the pilot's past performance, and would therefore be useful to a prospective air carrier employer. These records would also provide an established baseline of a pilot's career for air carriers to evaluate against a pilot's personal recordkeeping system in their pilot logbook to ensure consistency and to help employers detect intentional or inadvertent logbook inaccuracies.

In accordance with the regulatory requirements prescribed in § 61.51,

Pilot logbooks,

the FAA is proposing to require all part 125 operators to enter specific information into the database that displays compliance with recent flight experience regulations.

iii. Part 135 Air Carrier and Operator Training Records

As previously discussed, the PRD Act requires records maintained pursuant to § 135.63(a)(4) to be entered into the PRD, as well as other records the air carrier may be maintaining related to the training, qualifications, proficiency, or professional competence of the pilot, including check pilot comments maintained in accordance with § 135.337.

Some of the records maintained in accordance with § 135.63(a)(4) are basic identifying information, such as a pilot's name; FAA pilot certificate type, ratings held, and number; and duties. Other records kept pursuant to § 135.63(a)(4) require training records specific to the pilot to be maintained, which include: (1) The date and result of each of the initial and recurrent competency tests and proficiency and route checks required by part 135 and the type of aircraft flown during that test or check; and (2) the date and completion of the initial phase and each recurrent phase of the training required by part 135. Additionally, § 135.63(a)(4) requires a certificate holder to maintain a record of the pilot's aeronautical experience, flight time, authorizations to act as a check pilot, and any action taken concerning the pilot's release from employment for physical or professional disqualification.

See

§ 44703(i)(2)(B)(ii)(I).

iv. Part 91 Subpart K Fractional Ownership Training Program Records

Part 91 subpart K (91K) fractional ownerships would be required to report records to the PRD. In 91K operations, per § 91.1053, pilots either complete a training program approved by the FAA or complete training for the continued currency of a pilot certificate issued in accordance with part 61. The FAA also believes that many operators have voluntarily established a pilot training or proficiency program for operational safety purposes. Therefore, in § 111.220(a)(1), the FAA is proposing to require 91K fractional ownerships to report certain records described below to the database, which are kept in accordance with § 91.1027(a)(3). In addition, under § 111.220(a)(2), 91K fractional ownerships would be required to report any other records kept documenting an individual's compliance with other FAA- or employer-required training, checking, testing, currency, proficiency, or other events related to pilot performance, including check pilot comments as applicable.

All 91K programs, per § 91.1073, must have an approved training program for their pilots. However, a 91K fractional ownership may seek approval for a pilot training program in accordance with §§ 91.1065 through 91.1107, or in accordance with part 135, subparts E, G, and H, or subparts N and O, or Y, of part 121.

For any training that is conducted in accordance with the various methods of approval to qualify a pilot to conduct operations under subpart K of part 91, the recordkeeping requirements in § 91.1027(a)(3) still apply. Under § 91.1027(a)(3), each program manager is required to maintain an individual record of each pilot used in subpart K of part 91. Therefore, the FAA is proposing to require each 91K program manager to enter the pilot records kept pursuant to § 91.1027(a)(3). Examples of specific values for PRD entry are provided in the Draft AC.

A training program approved in this manner for a fractional ownership would enter a different value for the approved training program subpart that differs slightly from that of a traditional 91K training program.

While § 111.220(a) would require the reporting of all records kept in accordance with § 91.1027(a)(3) concerning compliance with training and checking events, records concerning flight time, medical certification and the pilot's assigned duties would be excepted in accordance with § 111.220(b).

The pilot training and currency requirements that would be required to be recorded for operations conducted in accordance with part 91 are prescribed in part 61 and incorporated by reference in part 91. For example, part 61 prescribes that each pilot certificated under the part is required to complete a flight review, recent flight experience, and a proficiency check, if operating under instrument flight rules, at regularly scheduled intervals.

The purpose of these events is similar to that of the required training and checking events of other rule parts. Therefore, as proposed in § 111.220(a)(2), 91K operators would be required to report to the PRD records that document compliance with part 61 requirements for flight review, recent flight experience, and proficiency checks. The 91K operator would also be required to report other relevant records concerning training, qualification, proficiency or professional competence that may be kept by the employer, as required by the PRD Act. The FAA believes these records fall within the PRD mandate because they include data that is directly pertinent to the pilot's past performance and are therefore relevant to an air carrier's hiring decision. These records would also provide an established baseline of a pilot's career for air carriers to evaluate against a pilot's personal recordkeeping system in his or her pilot logbook. Examples of records are detailed in the Draft AC.

See

§ 61.56 for exceptions that apply under certain circumstances for pilot currency.

The FAA notes that 91K fractional ownerships would only be requir

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