# Pilot Records Database > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/fr%3A2021-11424 ## Record - **Collection:** Federal Register - **Document type:** Rule - **Published:** June 10, 2021 - **Citation:** 86 FR 31006 ## Text DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Parts 11, 91, and 111 [Docket No.: FAA-2020-0246; Amdt. Nos. 11-65, 91-363, and 111-1] RIN 2120-AK31 Pilot Records Database AGENCY: Federal Aviation Administration (FAA), U.S. Department of Transportation (DOT). ACTION: Final rule. SUMMARY: The FAA adopts final regulations for the use of an electronic Pilot Records Database (PRD) and implements statutory requirements to facilitate the sharing of pilot records among air carriers and other operators in an electronic data system managed by the FAA. This final rule requires air carriers, specific operators holding out to the public, entities conducting public aircraft operations, air tour operators, fractional ownerships, and corporate flight departments to enter relevant data on individuals employed as pilots into the PRD. In addition, this rule identifies the air carriers and operators required to access the PRD to evaluate the available data for each pilot candidate prior to making a hiring decision. DATES: Effective date: This rule is effective August 9, 2021, except for the amendments at instruction 7, which is effective October 8, 2021; instructions 8 and 9, which are effective June 10, 2022; instructions 4, 11, and 12, which are effective September 9, 2024; instruction 13, which is effective September 8, 2027; and instructions 6, 10, and 14, which are effective September 10, 2029. Compliance dates: For the requirements in § 111.15, compliance is required by September 8, 2021. Compliance with subpart B of part 111 is required beginning June 10, 2022, except the requirements in § 111.105(b)(1), for which compliance is required beginning December 7, 2021. Compliance with subpart C of part 111 is required beginning June 10, 2022. In § 111.255, compliance for reporting historical records that date on or after January 1, 2015 is required by June 12, 2023. Compliance for reporting historical records that date before January 1, 2015 is required by September 9, 2024. Concurrent compliance with the requirements of the Pilot Records Improvement Act will end on September 9, 2024. FOR FURTHER INFORMATION CONTACT: Christopher Morris , 3500 S MacArthur Blvd., ARB301, Oklahoma City, Oklahoma 73179; telephone (405) 954-4646; email christopher.morris@faa.gov. SUPPLEMENTARY INFORMATION: Table of Contents I. Executive Summary A. Purpose of the Final Rule B. Overview of the Final Rule C. Summary of Benefits, Costs, and Cost Savings II. Authority for This Rulemaking III. Background A. Statement of the Problem B. History of PRIA and PRD IV. Comments Regarding General Issues, Applicability, Pilot Privacy, and the Transition From PRIA A. General Support or Opposition B. Applicability of the Rule C. Pilot Privacy D. Transition From PRIA to PRD V. Section-by-Section Discussion of Regulatory Text A. Subpart A—General B. Subpart B—Access to and Evaluation of Records C. Subpart C—Reporting of Records by Operators D. Subpart D—Pilot Access and Responsibilities E. Other Amendments F. Other Comments G. Comments Related to Regulatory Notices and Analyses VI. Regulatory Notices and Analyses A. Regulatory Evaluation B. Regulatory Flexibility Determination C. International Trade Impact Assessment D. Unfunded Mandates Assessment E. Paperwork Reduction Act F. International Compatibility and Cooperation G. Environmental Analysis H. Privacy Analysis VII. Executive Order Determinations A. Executive Order 13132, Federalism B. Executive Order 13211, Regulations That Significantly Affect Energy Supply, Distribution, or Use C. Executive Order 13609, Promoting International Regulatory Cooperation VIII. How To Obtain Additional Information A. Rulemaking Documents B. Comments Submitted to the Docket C. Small Business Regulatory Enforcement Fairness Act List of Abbreviations and Acronyms Used Frequently in This Document AC—Advisory Circular ARC—Aviation Rulemaking Committee CFR—Code of Federal Regulations FOIA—Freedom of Information Act InFO—Information for Operators NDR—National Driver Register NPRM—Notice of Proposed Rulemaking NTSB—National Transportation Safety Board PAC—Public Aircraft Operations, Air Tour Operators, Corporate Flight Departments PAO—Public Aircraft Operations PAR—PRD Airman Record PRD—Pilot Records Database PRIA—Pilot Records Improvement Act I. Executive Summary A. Purpose of the Final Rule This final rule amends Title 14 of the Code of Federal Regulations (14 CFR) by adding new part 111, Pilot Records Database (PRD). This final rule facilitates the transition from the information-sharing requirements of the Pilot Records Improvement Act (PRIA) 1 to an FAA-established electronic database, as required by the PRD Act. 2 1 Public Law 104-264 section 502; 110 Stat. 3259. The requirements of PRIA were initially codified at 49 U.S.C. 44936, which 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 requirements of PRIA are codified at 49 U.S.C. 44703(h) and (j). 2 49 U.S.C. 44703(i) (Pub. L. 111-216, 124 Stat. 2348 (Aug. 1, 2020)). Referred to as “the PRD Act” for the remainder of this preamble. This final rule modernizes pilot record-sharing as it occurs currently under PRIA. The PRD will serve as a repository for pilot records and will contain records from a pilot's current and former employers, as well as the FAA. The FAA envisions that the PRD not only will be an indicator of pilots' abilities or deficiencies, but also that it will prompt conversations between applicants and hiring employers. PRD is intended to help ensure that no records about a pilot's performance with previous employers that could influence a future employer's decision go unidentified. B. Overview of the Final Rule This final rule requires all 14 CFR part 119 certificate holders, fractional ownership programs, persons holding a letter of authorization (LOA) to conduct air tour operations in accordance with § 91.147, persons conducting certain operations under part 91 or part 125 (referenced as “corporate flight departments” or “corporate operators” in this preamble), 3 and governmental entities conducting public aircraft operations (PAO) to report records to the pilot records database in new 14 CFR part 111. This rule uses the term “reporting entity” when referencing such requirements. 3 The FAA uses the term corporate flight departments to reference operators of two or more aircraft conducting operations in furtherance of or incidental to a business, solely pursuant to the general operating and flight rules in part 91 or operating aircraft pursuant to a Letter of Deviation Authority issued under § 125.3. This criteria is provided in § 111.1(b)(4). Part 119 certificate holders, fractional ownership programs and persons conducting air tour operations must review records prior to allowing an individual to begin service as a pilot. This rule refers to the different operators subject to part 111 as “operators” generally, but also as “reviewing entity” when referencing these requirements. The PRD will contain the required operator and FAA records for the life of the pilot and will function as a hiring tool that an operator will use in making decisions regarding pilot employment. Employers cannot search the PRD indiscriminately, as an operator that wishes to view records can see a pilot's record only if that pilot has granted consent to that hiring employer. Pilot consent is time-limited and the duration is specified by the pilot. The FAA anticipates the PRD will improve pilot privacy because only specific data elements are required to be submitted, in contrast to current practice under PRIA, in which pilot records are exchanged in their entirety. The PRD will indicate what records exist about a pilot; the operator is responsible for determining if it is necessary to obtain further information prior to permitting an individual to begin service as a pilot. The Pilot Records Database Notice of Proposed Rulemaking (NPRM) published on March 30, 2020, and the comment period closed June 29, 2020. The FAA received approximately 800 comments. After careful consideration of these comments and thoughtful review of the proposal, the FAA adopts this final rule with certain modifications from the proposal. These modifications will reduce burdens while achieving the safety goals Congress intended for the PRD. The modifications will: • Remove the proposed user fee to access the database for review of pilot records. • Update the method of reporting to the PRD for certain operators without a part 119 certificate. Instead of providing records contemporaneously for all pilots employed, corporate flight departments, air tour operations, and public aircraft operations will be permitted not to upload training, disciplinary, and separation from employment records to the PRD unless and until requested by a hiring operator. Certain termination and disciplinary action records must be reported contemporaneously, however. • Revise the level of detail required for reporting certain training and checking; disciplinary action; and separation from employment events to ensure all relevant records are captured while reducing subjectivity. • Amend the compliance schedule, as set forth in the table below: Table 1—Timeline for Reporting and Reviewing Responsibilities Date 90 Days after publication 180 Days after publication One year after publication Two years after publication Three years and 90 days after publication Event Submit application for database access Reviewing entities use the PRD for the FAA records review Begin reporting current pilot records, historical records; begin reviewing operator records in the PRD Complete historical record reporting for records dating on or after January 1, 2015 Compliance with PRIA will no longer be available as an alternative to PRD; full compliance with PRD required. Historical record upload complete. Entity Reporting entities and reviewing entities Reviewing entities Reporting entities and reviewing entities Reporting entities subject to § 111.255 Reporting entities, reviewing entities. 14 CFR part 111 contains four subparts. Subpart A contains the general requirements of part 111, including how to submit an application for database access and other details about user roles within the PRD. Subpart B provides requirements for operators reviewing records—in particular, details regarding employer obligations during the record review process for both the FAA records and records submitted by an entity reporting records. Subpart C contains provisions for record reporting, including which records to report and timelines for reporting records. Subpart D provides requirements and information regarding pilots' access to the PRD. 1. PRD Access Requirements and Restrictions Subpart A of part 111 provides general requirements for use of the PRD. It includes provisions on applicability, definitions, requirements for compliance timeframes, database access, fraud and falsification, and record retention. Part 111 applies to each operator holding an air carrier or operating certificate issued in accordance with part 119 and authorized to conduct operations under part 121, part 125, or part 135; operators holding an LOA issued under § 91.147; operators holding management specifications for a fractional ownership program under subpart K of part 91; operators conducting operations as a corporate flight department; entities conducting certain PAO operations; trustees in bankruptcy of any operator; pilots; and other persons who might access the PRD. Part 111 does not apply to any foreign air carrier or operator of U.S. registered aircraft. Designated responsible persons under part 111 must apply for access to the PRD. Such persons will manage records and user accounts, and be responsible for all actions taken within the PRD for a particular operator, entity, or trustee. This rule provides a list of the appropriate management positions that will qualify to serve as a responsible person for an operator. Consistent with Congress' direction that the FAA protect the privacy and confidentiality of pilot records in the PRD, part 111 provides specific requirements for the responsible person's application that will enable the FAA to evaluate sufficiently each request for access. The responsible person may delegate his or her authority to access the database to certain other persons, but continued access is contingent on the validity of the responsible person's electronic access. The FAA will deny database access to any person for failure to comply with any of the duties and responsibilities prescribed under part 111, or as necessary to preserve the security and integrity of the database. No person may use the database for any purpose except as expressly authorized under part 111 and no person may share, distribute, publish, or otherwise release any record accessed in the database to any person or individual not directly involved in the hiring decision, unless specifically authorized by law, or unless the person sharing the record is the subject of the record. Lastly, subpart A contains requirements concerning the length of time that records pertaining to an individual must remain within the PRD. Such records must remain in the database until either the FAA receives official notification of a pilot's death or an FAA audit of the database indicates that 99 years have passed since the date of birth on record for a particular pilot. 2. Access to and Evaluation of Records Under subpart B of part 111, part 119 certificate holders, fractional ownership programs, air tour operations holding a letter of authorization under § 91.147, and trustees in bankruptcy of those entities must review a pilot's records in the PRD prior to permitting the pilot to begin service as a required flight crewmember. These operators are “reviewing entities.” In order to access and evaluate a pilot's records, a reviewing entity must receive consent from that pilot. As set forth in the PRD Act, each reviewing entity must preserve the privacy and confidentiality of the records accessed in the database and the persons accessing the records on behalf of each reviewing entity are subject to all terms of access set forth in subpart A. Reviewing entities must evaluate both the FAA records and records provided by an operator (reporting entity) subject to this rule. The FAA records include: • Records related to current pilot and medical certificate information, including associated type ratings and information on any limitations to those certificates and ratings; • Records maintained by the Administrator concerning any failed attempt of an individual to pass a practical test required to obtain a certificate or type rating under 14 CFR part 61; • Records related to enforcement actions resulting in a finding by the Administrator that was not subsequently overturned of a violation of Title 49 of the United States Code or a regulation prescribed or order issued under that title; and • Records related to an individual acting as pilot in command or second in command during an aviation accident or incident. Reviewing entities must also evaluate non-FAA records that the FAA includes in the PRD. Such records consist of an individual's pre-employment drug and alcohol testing history and other U.S. Department of Transportation drug and alcohol testing, including verified positive drug test results, alcohol misuse violations, including confirmed alcohol results of 0.04 or greater, and refusals to submit to drug or alcohol testing. Reviewing entities must begin using the PRD to evaluate the FAA records December 7, 2021. Each reviewing entity must also evaluate any records submitted to the PRD by a reporting entity and must begin evaluating these records in the PRD on June 10, 2022. Reviewing entities must also evaluate any records obtained through the National Driver Register (NDR) process from the chief driver licensing official of a State. Due to the possibility that a reporting entity might have additional records on request, the reviewing entity must compare the pilot's list of former employers dating back five years and verify that no discrepancy exists between the pilot-provided employment history and the records available in the PRD. 3. Reporting of Records Subpart C of part 111 requires reporting entities to submit records for each individual employed as a pilot, including drug and alcohol testing records under part 120, if applicable; training, qualification, and proficiency records, as applicable; final disciplinary action records; records concerning separation of employment; verification of a motor vehicle driving record search; and historical records. These records generally must be reported to the PRD contemporaneously, which for purposes of this preamble means within the time set by the FAA upon occurrence of the event causing creation of the record, typically 30 days. Reporting entities include all reviewing entities, as well as corporate flight departments and public aircraft operations. Pursuant to the PRD Act, this rule includes requirements for record reporting by a trustee appointed by a bankruptcy court for an operator or entity subject to part 111, subpart C. This trustee must comply with all reporting requirements in part 111. Certain records are not subject to required contemporaneous reporting. Each operator conducting PAO; air tour operations; and corporate flight departments are not required to report training qualification and proficiency records, certain final disciplinary action records, or certain records concerning separation of employment, unless and until they receive a request from a reviewing entity. If, however, the record memorializes a disciplinary action resulting in permanent or temporary removal of the pilot from aircraft operations or separation from employment resulting in termination, the record must be reported to the PRD contemporaneously. These operators must retain all records eligible for reporting upon request. If records are not available at the time of the request from the reviewing entity, these reporting entities must provide written confirmation to the FAA that no records are available. No reporting entity may report pilot records related to a safety event that the entity reported as part of the Aviation Safety Action Program (ASAP) or any other approved Voluntary Safety Reporting Program. If a reporting entity discovers or is informed that previously reported records contain inaccurate information, that entity must correct the record within 10 days of knowledge that the record contains an error. When the reporting entity does not agree that the record contains an error, it must notify the pilot that the dispute will be resolved in accordance with the reporting entity's dispute resolution procedures. Each reporting entity must have a documented process for investigating and resolving record disputes in a reasonable amount of time. Once resolved, final disposition of the dispute must be documented in the PRD. Air carriers and operators required to report historical records must complete submission of historical records generated on or after January 1, 2015 by June 12, 2023. Historical records preceding January 1, 2015 must be reported by September 9, 2024. 4. Pilot Access and Responsibilities Subpart D of part 111 establishes requirements that apply to a pilot's access to the PRD. Each pilot must submit an application to the FAA to validate that pilot's identity for access to the PRD. Pilots provide consent to a reviewing entity to view their records through the PRD. Access also enables pilots to review their own records in the PRD. In the event a pilot is not able to meet the identity validation requirements associated with accessing the PRD, a pilot can receive a paper copy of his or her records by submitting a form to the FAA. Pilots are responsible for designating which reviewing entities are able to access records for review. Before any operator may access a pilot's records in the PRD, the pilot must give written consent, designating the reviewing entity that will be allowed to access that pilot's records. Pilots must also provide separate written consent for operators to submit a request to the NDR for the pilot's motor vehicle driving record. Pilots must verify that their employment history is complete and accurate. In addition, pilots who identify errors or inaccuracies in their respective PRD records are responsible for reporting the errors to the PRD. Once the FAA receives a report from the pilot of an error or inaccuracy, the FAA will designate the record as “in dispute” in the PRD. The record will remain designated as such until the entity that reported the record either corrects the record or completes the dispute resolution process. 5. Transition to PRD Operators currently comply with PRIA. Continued use of PRIA is required to support a successful transition to PRD. By September 9, 2024, the FAA intends to complete the transition from PRIA to PRD. To support the transition, all operators subject to the applicability of part 111 must submit a responsible person application not later than September 8, 2021. The FAA will begin working with each subject operator and entity to facilitate a smooth transition. Additionally, reviewing entities must use the PRD to review the FAA records, beginning December 7, 2021. Once the PRD begins accepting records on June 10, 2022, reporting entities must submit any new records generated on or after that date to the PRD. During this time, reporting entities must continue to respond to PRIA requests for historical records or, alternatively, report those historical records directly to the PRD for review. The PRD will display either a statement indicating a reporting entity has completed reporting all records for a pilot or a statement that the reviewing entity needs to submit a PRIA request to the reporting entity for records. The FAA envisions that as time goes on, records will be pre-populated in the PRD and any duplicative review of records will phase out. Duplicative reporting is never required; a reporting entity may always, beginning on June 10, 2022, upload a record to the PRD instead of responding to a PRIA request. Reviewing entities must also begin reviewing records in the PRD on June 10, 2022, while continuing to comply with PRIA. C. Summary of Benefits, Costs, and Cost Savings This rule promotes aviation safety by facilitating operators' consideration of pilot skill and performance when making hiring and personnel management decisions by using the most accurate pilot records available and by making those records accessible electronically. After the effective date of the rule, operators will incur costs to report pilot records to the PRD and to train and register as users of the PRD. Operators will receive future cost savings once PRIA is phased out. The FAA will incur costs related to the operations and maintenance of the PRD. Over a 10-year period of analysis (2021-2030), this rule results in present value net costs (costs less savings) to industry and the FAA of about $67.0 million or $9.5 million annualized using a seven percent discount rate. Using a three percent discount rate, this rule results in present value net costs of about $71.0 million or about $8.3 million annualized. This rule provides recurring annual cost savings to industry because the PRD would replace PRIA three years and 90 days after the rule is published. Under PRIA, air carriers, operators, and pilots complete and mail, fax, or email forms to authorize requests for the provision of pilots' records. Under the PRD, most of this process will occur electronically. Over a 10-year period of analysis (2021-2030), the rule provides present value cost savings to industry of about $21.2 million or $3.0 million annualized using a seven percent discount rate. Using a three percent discount rate, the present value cost savings to industry is about $27.4 million or about $3.2 million annualized. After the discontinuance of PRIA, the annual recurring cost savings will more than offset the recurring annual costs of the rule. The following table summarizes the benefits, costs, and cost savings of the rule to industry and the FAA. Table 2—Summary of Benefits, Costs, and Cost Savings Benefits • Promotes aviation safety by facilitating operators' consideration of pilot skill and performance when making hiring and personnel management decisions. • Provides faster retrieval of pilot records compared to PRIA. • Reduces inaccurate information and interpretation compared to PRIA. • Provides easier storage of and access to pilot records than PRIA. • Allows pilots to consent to release and review of records. Summary of costs and cost savings * ($millions) Category 10-Year present value (7%) Annualized (7%) 10-Year present value (3%) Annualized (3%) Costs 88.2 12.6 98.5 11.5 Cost Savings (21.2) (3.0) (27.4) (3.2) Net Costs 67.0 9.5 71.0 8.3 * Table Notes: Columns may not sum due to rounding. Savings are shown in parentheses to distinguish from costs. Estimates are provided at seven and three percent discount rates per Office of Management and Budget (OMB) guidance. Industry and FAA costs are higher in the beginning of the period of analysis than industry cost savings that occur later in the period of analysis after the discontinuance of PRIA three years and 90 days after the rule is published. This results in larger annualized estimates of costs and net costs at a seven percent discount rate compared to a three percent discount rate. II. 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 section 203 of the Airline Safety and Federal Aviation Administration Extension Act of 2010, herein called the PRD Act, 4 codified at 49 U.S.C. 44703(h)-(k). The PRD Act identifies several rulemaking requirements. 4 Public Law 111-216, 124 Stat. 2348 (Aug. 1, 2010). 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 persons that employ pilots. At a minimum, air carriers and persons 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. 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 expiration of the application of the Pilot Records Improvement Act of 1996. III. Background A. Statement of the Problem The Pilot Records Improvement Act (PRIA) was enacted in 1997 in response to a series of accidents attributed to pilot error. 5 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 employers had not investigated the pilots' backgrounds. 5 Clarifications to Pilot Records Improvement Act of 1996, H.R. Rep. 105-372 (Oct. 31, 1997), explained certain clarifying amendments made to PRIA in Public Law 105-142, 111 Stat. 2650 (Dec. 5, 1997), and 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). Each of these operators held a part 119 air carrier certificate and most of the flights occurred under 14 CFR part 135, except Continental Airlines flight 1713, which was operated under 14 CFR part 121. Two accidents following the enactment and implementation of PRIA led the NTSB to make additional findings and recommendations regarding retention of pilot records; the sharing of information related to pilot performance among operators; and operators' review of previous performance records. 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), The Bahamas, after an in-flight failure of the right engine. The flight was conducted under the operating rule of 14 CFR part 135, as a scheduled international, passenger-commuter flight. Out of 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.” 6 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.” 7 6 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. 7 See NTSB Report AAR-04/03 at page 43. In response to the Air Sunshine 527 accident, the NTSB issued recommendation A-05-01, in which it 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.” 8 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.” 8 Letter to Marion C. Blakey Re Safety Recommendation A-05-01 and -02 (Jan. 27, 2005), available at http://www.ntsb.gov/safety/safety-recs/RecLetters/A05_01_02.pdf. On February 12, 2009, Colgan Air, Inc. flight 3407 (d/b/a Continental Connection), crashed into a residence in Clarence Center, New York, 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 occurred 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.” 9 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.” 10 9 NTSB Report AAR-10/01 at 155 (Feb. 2, 2010), available at http://www.ntsb.gov/investigations/AccidentReports/Reports/AAR1001.pdf. 10 Id. Additional safety issues the NTSB identified included deficiencies in the air carrier's recordkeeping system and its analysis of the flightcrew's qualifications and previous performance. Specifically, Colgan Air's check airman stated 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 the next day; however, the company's electronic records indicated that the second check was conducted 12 days after the failure. 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. 11 In addition to this failed check, the captain failed his practical tests for the instrument rating (airplane category) on October 1, 1991 and for 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. 11 Id. As a result of its investigation, the NTSB issued recommendation A-10-019 to recommend 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.” 12 Safety Recommendation A-10-017 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.” 13 12 NTSB Safety Recommendation A-10-019 in Letter from NTSB Chairman Deborah A.P. Hersman to FAA Administrator J. Randolph Babbitt dated Feb. 23, 2010 at 26, available at https://www.ntsb.gov/safety/safety-recs/recletters/A-10-010-034.pdf. 13 NTSB Safety Recommendation A-10-017 in Letter from NTSB Chairman Deborah A.P. Hersman to FAA Administrator J. Randolph Babbitt dated Feb. 23, 2010 at 57, available at https://www.ntsb.gov/safety/safety-recs/recletters/A-10-010-034.pdf. 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-10-017 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) 120-68G: The Pilot Records Improvement Act of 1996 (AC120-68G), (June 21, 2016) 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, 14 the NTSB advised that a rulemaking would ensure that air carriers are required to obtain and evaluate notices of disapprovals for pilot-applicants. 14 Advisory Circular—Pilot Records Improvement Act of 1996 (June 21, 2016), available at https://www.faa.gov/documentLibrary/media/Advisory_Circular/AC_120-68G.pdf. Following the Colgan Air 3407 accident, Congress enacted the PRD Act. The PRD Act required the FAA to establish an electronic pilot records database and provided for the subsequent sunset of PRIA. Congress has since enacted the FAA Extension, Safety, and Security Act of 2016 (FESSA), which required the FAA to establish the electronic pilot records database by April 30, 2017. 15 15 Public Law 114-190 section 2101 (July 15, 2016). On February 23, 2019, Atlas Air Inc. (Atlas) flight 3591, a Boeing 767, was destroyed after it descended rapidly from an altitude of about 6,000 ft mean sea level (MSL) and crashed in Trinity Bay, Texas, about 41 miles east-southeast of George Bush Intercontinental/Houston Airport (IAH), Houston, Texas, resulting in the death of the captain, first officer, and a nonrevenue pilot riding in the jump seat. Atlas operated the airplane as a part 121 domestic cargo flight. The NTSB determined that the probable cause of this accident was an inappropriate response by the first officer as the pilot flying to an inadvertent activation of the go-around mode, which led to his spatial disorientation and nose-down control inputs that placed the airplane in a steep descent from which the crew did not recover. Contributing to the accident, according to the NTSB, were systemic deficiencies in the aviation industry's selection and performance measurement practices, which failed to address the first officer's aptitude-related deficiencies and maladaptive stress response. The NTSB also noted the FAA's failure to implement the PRD as a contributing factor. Consequently, the NTSB issued two new safety recommendations. Recommendation A-20-34 states: Implement the pilot records database and ensure that it includes all industry records for all training started by a pilot as part of the employment process for any Title 14 Code of Federal Regulations Part 119 certificate holder, air tour operator, fractional ownership program, corporate flight department, or governmental entity conducting public aircraft operations regardless of the pilot's employment status and whether the training was completed. Recommendation A-20-35 states: Ensure that industry records maintained in the pilot records database are searchable by a pilot's certificate number to enable a hiring operator to obtain all background records for a pilot reported by all previous employers. On March 30, 2020, the FAA responded to the legislative mandates and NTSB recommendations by publishing the PRD Notice of Proposed Rulemaking (NPRM) in the Federal Register . 16 Consistent with NTSB recommendation A-05-01, the FAA proposed to require all 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 the individual received during a practical test attempt for a certificate or rating. The proposed rule stated 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 proposed to require air carriers and operators to enter relevant information into the PRD in a standardized format. 16 85 FR 17660. Implementation of this rule is responsive to both new NTSB recommendations. Specifically, regarding Recommendation A-20-34, the FAA only has authority to require reporting of records by operators that have actually employed the pilot; however, the PRD will apply to records concerning training prior to the pilot beginning service as a pilot crewmember. B. History of PRIA and PRD Congress enacted PRIA to ensure that air carriers adequately investigate each pilot's employment background and other information pertaining to pilot performance 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 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 provisions of PRIA were self-implementing and the FAA's role was limited; therefore, there was no need for the FAA to develop implementing regulations. The FAA issued AC120-68G, which provided guidance for air carriers, operators and pilots regarding compliance with the PRIA statute. In advance of this rulemaking, the FAA moved its PRIA records to an electronic pilot record database, the first phase of PRD. 17 Use of the PRD for review of FAA records is voluntary under PRIA. 17 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. Following the Colgan Air 3407 accident, the FAA issued a Call to Action on Airline Safety and Pilot Training. The FAA published an Airline Safety and Pilot Training Action Plan 18 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 updated AC 120-68E 19 on July 2, 2010, and incorporated elements from the Plan. 18 Fact Sheet—Update on the FAA's Call to Action to Enhance Airline Safety (Jan. 27, 2010), available at https://www.faa.gov/news/fact_sheets/news_story.cfm?newsId=11125. 19 Advisory Circular—Pilot Records Improvement Act of 1996 (July 2, 2010), available at https://www.faa.gov/documentLibrary/media/Advisory_Circular/AC%20120-68E.pdf. In response to the PRD Act, the FAA Administrator chartered the PRD Aviation Rulemaking Committee (ARC) on February 3, 2011. 20 The PRD ARC submitted a final report to the Associate Administrator for Aviation Safety on July 29, 2011. A copy of the report is in the public docket for this rulemaking. 21 20 The PRD ARC charter is available at http://www.faa.gov/regulations_policies/rulemaking/committees/documents/media/PRD.ARC.cht.20110203.pdf. 21 The ARC report is available in the public 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 FAA also issued further communications regarding pilot records. The FAA published an Information for Operators (InFO) 22 on August 15, 2011 (InFO 11014), advising all operators that conduct operations in accordance with parts 91, 121, 125, and 135 to retain any records on pilots employed in those operations. 23 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 to August 1, 2005. 24 The FAA also issued a 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 the statute requires such entities to include in the database. 25 22 InFOs are documents the FAA issues that contain information and recommendations. 23 http://www.faa.gov/other_visit/aviation_industry/airline_operators/airline_safety/info/all_infos/media/2011/InFO11014.pdf. 24 Pilot Records Database—Status Update http://www.faa.gov/other_visit/aviation_industry/airline_operators/airline_safety/info/all_infos/media/ 2014/InFO14005.pdf. 25 National policy notice N8900.279, “Pilot Records Retention Responsibilities Related to the Airline Safety and Federal Aviation Administration Act of 2010,” is available at http://www.faa.gov/documentLibrary/media/Notice/N_8900.279.pdf. See also 49 U.S.C. 44703(i)(4)(B)(ii)(II). The PRD Act directed the FAA to submit a statement to Congress by February 2012, and at least once every three years thereafter, indicating completion of a periodic review of the statutory requirements. The statement to Congress must contain FAA recommendations to change the records required to be included in the database or explain why the FAA does not recommend changes to the records referenced in Section 203. In its most recent report to Congress, in February 2018, the FAA indicated that it did not recommend any changes until it considers public comments on the PRD rulemaking proposal. The FAA expects to provide the next report by February 2021. IV. Comments Regarding General Issues, Applicability, Pilot Privacy, and the Transition From PRIA The Pilot Records Database NPRM published on March 30, 2020 and the comment period closed June 29, 2020. Approximately 800 comments were posted to the docket, many of which were form letters submitted by National Business Aviation Association (NBAA) members. Generally, the Families of Continental Flight 3407 26 and others supported the rule. Many commenters, particularly part 91 operators 27 and aviation industry organizations, opposed the proposed rule. Commenters stated that not all covered records should apply to some types of operators, such as corporate operators and operators conducting public aircraft operations (PAO). They asserted that requiring such operators to include all record types would cause undue burden and would offer limited value, as the career path from part 91 operations to operations involving common carriage is less common. Commenters were also concerned about the user fee, particularly as it applied to small operators, and noted that they anticipated higher costs for recordkeeping than the estimated costs presented by the FAA. Commenters also requested a longer compliance period to transition from PRIA to PRD. 26 The Families of Continental Flight 3407 is an organization of family members and close friends of the victims of Continental Flight 3407 which crashed on February 12, 2009. This rule refers to that event as Colgan Air 3407. 27 The term “part 91 operators” refers to operations that occur solely under the regulatory requirements contained in 14 CFR part 91. Commenters expressed concern about pilots' privacy and objected to the inclusion of check pilot comments in the PRD. Commenters further objected to the inclusion of historical records and the method for record reporting. A. General Support or Opposition 1. Summary of Comments Most comments that generally agreed with the proposed rule were submitted by the Families of Continental Flight 3407. These commenters supported the creation of the PRD on the grounds that it would prevent accidents such as crash of Colgan Flight 3407. Most of these commenters stated the crash was largely due to pilot error and that the PRD would have provided better review and scrutiny of pilot records, which could have prevented the accident. The other commenters that generally supported the proposed rule, including the NTSB, the Regional Airline Association (RAA), Small UAV Coalition, and the National Air Disaster Foundation, did so on the basis that centralizing records in an electronic database would create a broad source of records available in a standardized format in one location. This centralization would limit the possibility that operators would overlook records, provide a seamless process of reviewing pilot records, aid operators in hiring the highest quality pilots, and improve transparency while still protecting the privacy of pilots' records. One individual stated the proposed rule has some positive aspects for part 135 operators, especially in obtaining timely PRIA documents about a prospective crewmember's employment history, but believed the costs outweigh the benefits. This commenter indicated complying with the proposed rule would require hiring additional personnel. Commenters who generally disagreed with the proposed rule stated the PRD would not be useful, would impose an unfair burden on affected operators or pilots or would be intrusive and violate pilot privacy. Commenters also stated that the PRD would be open to abuse and false reporting by employers, or would penalize pilots unfairly who do not train well or do not perform well in the culture of a particular airline. Others, including a flight department leader, stated the provisions are unnecessary because airline and charter organizations can change their internal hiring processes to assess the candidate without needing to leverage a standardized process for review of records. The FL Aviation Corp. and another individual commented that the NPRM provided no data concerning accidents or incidents that justify the change to the PRD or the requirements for inclusion of additional records and recordkeeping. The Coalition of Airline Pilots Associations (CAPA) urged the FAA to establish protocols to prevent U.S. candidates from being placed at a hiring disadvantage when competing for jobs among foreign applicants whose training data may be unverifiable. Three commenters, including NBAA and CAPA, expressed concern that the proposed rule differs significantly from the consensus recommendations of the 2011 PRD Aviation Rulemaking Committee (ARC). CAPA recommended the FAA reconsider the ARC's recommendations, in addition to reviewing the public comments. 2. FAA Response The FAA carefully reviewed all comments received in response to the NPRM and made several changes to the rule to ensure that it achieves the safety goals of the FAA and fully implements the statutory requirements set forth by Congress. As noted in the NPRM, industry, including part 91 operators, currently is subject to the requirements of PRIA. Although the implementation of the PRD changes the nature of industry participation in record-sharing, issues such as pilot privacy, abuse, false reporting, and penalization of pilots who do not perform well exist under PRIA, as well. In enacting the PRD Act, Congress directed the FAA to include safeguards in the PRD for pilot privacy and related concerns. The FAA discussed these proposed safeguards in the NPRM and adopts them, as appropriate, in this final rule. The FAA carefully considered the input provided by the ARC. The FAA has already adopted many of its recommendations in the design and implementation of the PRD. While the FAA does not currently plan to implement all recommendations as described in the report, the ARC assisted the FAA in formulating the design of the PRD. This design is the result of careful consideration of the requirements, as outlined in the statute, the FAA's operational capabilities, and the effects on and benefits to industry. The FAA is mindful of all comments concerning costs of compliance with this rule. The Regulatory Impact Assessment (RIA), which is available in the docket for this rulemaking, accounts for all costs incurred by entities. Section VI.A of this rule also includes a discussion of the costs. B. Applicability of the Rule As discussed further in Section V.A.1., under the NPRM, part 111 applies to operators and would require them to report information to the FAA for inclusion in the PRD. Specifically, the FAA proposed to include pilot records from certain operations occurring under part 91, such as public aircraft operations, air tour operators operating in accordance with § 91.147, and corporate flight departments. The FAA received comments related to the applicability of the proposed rule from the General Aviation Manufacturers Association (GAMA), the Aircraft Owners and Pilots Association (AOPA), NBAA, the U.S. Marshals Service Justice Prisoner and Alien Transportation System (JPATS), NASA's Aircraft Management Division, PlaneSense, Inc., Dassault Aviation, and several individual commenters, approximately 500 of whom were using a form letter provided by NBAA. Many commenters and the majority of individuals opposed applying the proposed requirements to part 91 operators. Some commenters, including NASA's Aircraft Management Division and JPATS, opposed the application of the proposed rule to PAO. 1. Comments Received on the Inclusion and Definition of Corporate Flight Departments and Other Part 91 Operators GAMA, NTSB, NBAA, AOPA, Koch Industries, operators, and individual commenters addressed the proposal to require all corporate flight departments to enter data on pilot performance into the PRD. Many of these commenters indicated that the proposal would impose unreasonably burdensome recordkeeping requirements on corporate flight departments, which ultimately would benefit operators but would not increase the safety of corporate flight department operations. Several commenters asserted that Congress did not intend to impose these requirements on corporate flight departments and the proposal was FAA overreach. Many commenters noted that their corporate flight departments are small operations; as a result, some suggested they would need to add staff and modify their information technology systems to comply with the proposed requirements. Several commenters objected to the definition of “corporate flight departments” in the NPRM, arguing that the FAA is creating a new category of operator, and that this is inconsistent with established categories of operations under parts 91, 121, and 135. GAMA, NBAA and its form letter campaign, AOPA, and the PlaneSense form letter campaign asserted that no basis exists in the PRD Act to establish such a definition and that it would add complexity and confusion. GAMA noted the proposed definition would require aircraft operators to first determine their status based on the definition and then add the new burden and cost of compiling, maintaining, and reporting pilot records. GAMA expressed concern that the proposed rule would expose operators to the possibility of enforcement action in the event the FAA disagrees with an operator's interpretation of the rule and the operator's subsequent actions. GAMA, AOPA, and individual commenters asserted that the FAA assumes erroneously that part 91 corporate aviation commonly serves as a “pipeline” or “gateway” to employment with part 121 and part 135 operators. GAMA stated that studies show corporate flight departments are not gateway employers like flight schools with bridge agreements, operators under parts 91 subpart K and 135, and the U.S. military. Instead, GAMA stated that the most common path to part 121 air carrier employment starts at a flight school. GAMA identified the primary sources of airline hiring as part 141 and part 61 flight schools with bridge agreements, parts 135 and part 91(k) operators, and the U.S. military. 28 CAPA stated those gateway jobs are ever-changing and that although it is not unreasonable to require a certificate holder to keep pilot records, trying to take this snapshot in time of what might be a gateway job could lead to future loopholes. 28 James Higgins, et al., “An Investigation of the United States Pilot Labor Supply,” University of North Dakota (2013); and Michael McGee, “Air Transport Pilot Supply and Demand—Current State and Effects of Recent Legislation,” The RAND Corporation (2015). NBAA stated that business aviation represents a diverse group of aircraft operators ranging from single-pilot, owner-operated single aircraft to multi-aircraft operators with a mix of fixed-wing and rotor-wing aircraft. Therefore, according to NBAA, a single, codified definition will not adequately address the diversity of the industry. NBAA recommended the FAA remove any provisions that impose additional recordkeeping requirements that would apply to corporate flight departments and § 91.147 operators, as recommended by the ARC. NBAA also objected to the FAA basing the definition of corporate flight departments on the number of aircraft a department operates, as doing so could deter operators from purchasing aircraft. NBAA urged the FAA to limit the scope of the proposed rule to operators with the most significant public interest, such as those that conduct common carriage, and to facilitate the continued use of PRIA feedback for part 91 operators. NBAA noted its member survey data suggests that, on average, part 91 operators within FAA's proposed definition of a corporate flight department receive less than one PRIA request every two-and-a-half years. NBAA and other commenters stated that part 91 business operators—particularly those the FAA proposed to include in part 111—have excellent safety records, and the FAA's proposal and regulatory evaluation fail to articulate any quantifiable safety value for subjecting part 91 operators to the requirements of the proposed rule. NBAA further stated that NBAA members, such as certificate holders operating under part 135, are already subject to PRIA requirements and report that PRIA results play a greater role in validating existing pilot hiring decisions than in considering whom to hire. NBAA also pointed out that including certain part 91 operators exceeds the NTSB's recommendation, which only cites the need for parts 121 and 135 operators to share pilot information. NBAA recommended the FAA remove part 91 operators from the proposed rule, on the view that records provided by part 91 operators would provide minimal safety benefit to part 121 and part 135 operators in their hiring process. An individual asserted that while InFO 11014 29 refers to part 91, 121 and 135 records, the regulations cited are for parts 121, 125, and 135 only. The commenter stated no regulation requires part 91 operators to maintain records other than to show proficiency. The commenter further stated the InFO does not address part 91 record retention. 29 InFO 11014, described in Section III.B., published on August 11, 2015 and provided information about future PRD compliance to air carriers and operators. Other commenters stated that the FAA does not have statutory authority to impose the proposed recordkeeping requirements on part 91 operators. PlaneSense and the commenters that submitted comments as part of the PlaneSense form letter campaign (the PlaneSense commenters) asserted that the PRD Act identifies air carriers and “other persons” as having obligations under the Act, but specifically identifies the applicable pilot records to which the PRD Act applies as those kept pursuant to part 121, part 125, or part 135. Citing 49 U.S.C. 44703(h) and 44703(i), these commenters argued that the PRD Act does not include pilot records of operators whose flights are operated under part 91 or subpart k of part 91. The PlaneSense commenters also contended that no statutory authority exists in either section 44703(h) or 44703(i) that imposes an obligation on any operator conducting operations under part 91. They asserted that the FAA is overstepping its authority by interpreting the definition of “person” in the PRD Act to include noncommercial operators that the statute does not identify specifically. These commenters urged the FAA to remove references to fractional operators and corporate flight departments from the rule. An air tour operator opined that the proposal would burden part 91 operators far beyond the intent of Congress by requiring frequent reporting by that group. Several commenters noted that corporate flight departments vary widely in the volume and nature of records retained. GAMA and other commenters suggested that the proposal would discourage corporate flight departments from creating and retaining records not otherwise mandated by regulation and may also discourage participation in voluntary safety programs and optional formal training. One individual suggested that while Congress and the FAA included indemnity clauses, they are not robust enough to prevent civil defamation actions. Dassault Aviation asked the FAA to confirm that the proposed requirements for corporate flight departments are not applicable to original equipment manufacturer (OEM) demonstration and OEM production or experimental flight departments because they do not operate “a fleet of two or more standard airworthiness airplanes.” In the preamble to the proposed rule, the FAA asked commenters to respond to three questions regarding corporate flight departments' safety practices. 30 GAMA and four individual commenters provided responses. These commenters generally agreed it would not be beneficial to require corporate flight departments operating a single aircraft to report to the PRD because, in the case of owners operating their own aircraft, they would be reporting on themselves. GAMA asserted the Agency failed to “adequately address the scope of operations conducted under part 91, especially by owner-operators who use their aircraft for a variety of purposes and will likely never employ pilots.” An individual commenter noted it would be impossible for corporate flight departments operating a single aircraft to comply with the proposed requirements because every private aircraft owner would have to report on every pilot they employ or contract with regardless of how short the term. Another individual asked how the FAA would know all corporate flight departments are reporting to the PRD, as required. 30 85 FR at 17671 (requesting answers to whether it would be beneficial to require corporate flight departments operating a single aircraft to report to PRD; whether such flight departments already maintain substantive records that include certain types of information; and whether the proposed rule would create a disincentive for such departments to create and retain records not already required). In response to questions about the records corporate flight departments maintain, GAMA indicated many large corporate flight departments maintain records documenting pilot training, evaluation, performance, disciplinary actions, or release from employment or other professional disqualification. GAMA also noted that pilots of many corporate flight departments have responsibilities in addition to operating aircraft, so employment records may also contain much information that is not relevant to performance as a pilot and the pilot-related data is likely to exist in a form that differs from the record elements the PRD intends to include. JPATS, NASA's Aircraft Management Division, and individuals opposed the application of the proposed rule to PAO. Noting that the proposed rule would not apply to “[a]ny branch of the United States Armed Forces, National Guard, or reserve component of the Armed Forces,” JPATS said that Federal flight departments should be treated the same, unless the department maintains an FAA certificate, such as an air carrier or commercial operating certificate. NASA opposed placing pilot record reporting requirements on Federal Government PAO. Individual commenters also recommended the FAA exempt PAO from the proposed rule. One such commenter stated the proposed rule does not consider that pilots from the Department of Justice (FBI, DEA, U.S. Marshals) and the Department of Homeland Security (Air and Marine Operations, United States Coast Guard) can be targeted for retaliation for performing their duties. In contrast to the comments discussed above, NTSB and an individual commenter expressed support for the inclusion of part 91 operators in the proposed rule. The individual commenter said that, as an employer of pilots for part 135 operations, it finds the current process to be flawed and time-consuming with respect to obtaining records from part 91 operators. The NTSB agreed that part 91 operators often serve as “gateway operators” for air carrier pilots. 2. FAA Response The FAA carefully evaluated all comments received regarding the applicability of each proposed requirement. Upon consideration, the FAA determined that in light of the information and data provided by commenters, some requirements of the proposed rule were overly burdensome for certain types of operators. This rule reduces the reporting burden for certain operators conducting operations without a part 119 certificate, in that they are not required to report specific types of records unless and until requested. Such operators include public aircraft operations, air tour operations, and corporate flight departments, referred to in this section as the “PAC” group. This approach addresses many of the issues raised by commenters with respect to the burden on part 91 operators. Under the final rule, a reviewing entity will have access to a pilot's records as needed, but that the reporting requirement for the PAC group scales according to the volume of requests. Commenters stated that many pilots employed by PAC operators do not switch employers often and NBAA noted that some operators only receive a single PRIA request every two-and-a-half years. Accordingly, the FAA determined the most effective way to ensure review of a pilot's records by a potential employer, while reducing extraneous records loaded by the PAC group, is to require that group to enter only records that may be of particular concern to a hiring employer. Section V.C.4 of this rule contains a detailed discussion of this new method of reporting. This rule requires these PAC operators to enter certain records contemporaneous with the occurrence of a particular event or receipt of a record; this framework will reduce risk associated with a pilot error or omission with respect to that pilot's employment history. Section V.D.3 provides a description of this requirement. This rule will require the PAC operators to report all other records unless and until requested, with the exception of an air tour operator's drug and alcohol testing records. 31 31 Operators subject to 14 CFR part 120 must enter all drug and alcohol records into the database in accordance with the timelines and requirements included in § 111.220. The FAA is mindful of the comments recommending exclusion of public aircraft operations from the PRD. The FAA, however, does not have discretion to completely exclude this group from the PRD requirements. The PRD Act requires the inclusion of records from “other person[s] [. . .] that ha[ve] employed an individual as a pilot of a civil or public aircraft.” 32 The FAA notes that the PRD Act specifically excludes records from the branches of the “Armed Forces, the National Guard, or a reserve component of the Armed Forces,” 33 which would be public aircraft operations under 49 U.S.C. 40102. The exclusion of records from this narrow group of public aircraft operators, combined with the statutory language generally including individuals who are employed as pilots of public aircraft, indicates that the statute includes other (non-statutorily excluded) entities that conduct public aircraft operations. 32 49 U.S.C. 44703(i)(2)(B) (emphasis added). 33 Id. Permitting the PAC group to report certain records only upon request is consistent with the FAA's framework for risk-based decision-making. Operators under part 119 are subject to robust requirements, concomitant with assuring the safety of the traveling public; in contrast, operators in the PAC group conduct operations that are subject to less FAA oversight and generally present a lower level of risk, due to reduced volume and frequency. The FAA anticipates a modest number of pilots will transition from the PAC group to reviewing entities. Given the considerations noted above, this method of reporting-upon-request available for PAC entities is consistent with the PRD Act and is scalable with the level of risk of these types of operations. These operators currently respond to requests under PRIA. Excluding these operators from the applicability of the PRD entirely would not serve the FAA's safety mission; overall, this final rule requires an appropriate level of engagement from certain part 91 operators. The FAA also received many comments concerning the proposed definition of corporate flight department. The FAA proposed to define corporate flight departments as operators conducting operations under part 91 with two or more standard airworthiness airplanes that require a type rating under § 61.31(a), in furtherance of, or incidental to, a business, or operators holding a letter of deviation authority under § 125.3. This rule removes the proposed definition from § 111.10 but instead includes the criteria in the applicability section of the rule. The criteria are also amended to include rotorcraft, which is described in detail in Section V.A.1. The FAA selected two aircraft because operators utilizing multiple aircraft tend to have more pilots, as described in the NPRM. Additionally, this rule will not require single-aircraft corporate flight departments conducting operations exclusively under part 91 to upload records to the PRD because, as mentioned by commenters, such operators often include only the single pilot conducting operations on behalf of the operator, who may be the same person. Setting the threshold at multiple aircraft better tailors this rule to apply to entities that may have applicable records. In response to comments regarding whether an OEM's operations fall within the definition of a corporate flight department, the FAA reiterates that if the operations fall into the applicability criteria as adopted, part 111 would apply to that entity. Each manufacturer should remain aware of the applicability criteria and assess whether it meets the criteria for applicability. 3. Comments Regarding Other Types of Operators Commenters also provided input concerning other types of entities, such as pilot schools and operators that are excluded from the applicability of part 119. Several commenters, including Koch Industries, CAE, and CAPA, asked why part 141 and part 142 schools are not required to report, and suggested that those entities should provide data instead of operators. CAPA also stated that applicability should extend to the U.S. military. RAA supported gathering data from part 133 and part 137 operations, while the National Agricultural Aviation Association (NAAA) agreed with FAA's decision not to require reporting from part 137 agricultural operators. NAAA stated that part 137 operators are not “gateway operators” for air carriers. Commenters also responded to the FAA's request for comment regarding whether data from excluded entities would provide information relevant to the evaluation of a pilot candidate for employment. Airlines for America (A4A) stated it does not believe data from excluded entities would provide information relevant to the evaluation of a pilot candidate seeking employment. A4A recommended that the FAA focus on ensuring the PRD is successful by providing technical requirements and engaging with regulated entities before expanding the PRD to other entities. Ameristar Air Cargo, Inc. (Ameristar) asserted it would be unlikely that PRIA requests will be honored by foreign carriers without a treaty or bilateral agreement with ICAO member countries. The Small UAV Coalition commented that the proposed rule is another regulation that applies to UAS air carriers only because a more suitable regulatory scheme addressing such operations does not exist. The Coalition stated that a set of comprehensive laws and regulations specific to UAS operations would help resolve the regulatory compliance burden that UAS operators face when seeking to conduct commercial business under existing regulatory schemes. The Coalition did not suggest that the overarching safety purposes of the PRD are inapplicable to commercial UAS operations, but stated that commercial UAS operations merit a realistic and tailored approach to record retention and review that is an integral part of a comprehensive rule on UAS air carriers. The Coalition urged the FAA to begin rulemaking to update air carrier operating rules for UAS air carriers. 4. FAA Response The plain language of the statute only permits the FAA to require employers of pilots to report records. The Armed Forces are excluded by the plain language of the statute. 34 Similarly, training centers subject to 14 CFR part 141 or part 142 training centers would not be able to report records regarding pilots who received training at those centers, as individuals employed as flight instructors to provide flight training are not employed for purposes of operating an aircraft. Therefore, the FAA did not propose to require compliance with part 111 by part 61 or part 141 pilot schools or part 142 training centers with part 111. The FAA also considered comments regarding the applicability of part 111 to operators conducting operations under part 133 (Rotorcraft External-Load Operations) or part 137 (Agricultural Aircraft Operations). This final rule maintains the proposed exclusion of those operations, for the reasons discussed in the NPRM. Primarily, the FAA determined that those operators would not be likely to generate records that would be useful to a reviewing entity and that pilots employed by those operators will generally be employed by another type of operator that would be a reporting entity before attempting to find employment in service of a reviewing entity like an air carrier. 34 49 U.S.C. 44703(h)(1)(B) (excluding, among other things, records from “a branch of the United States Armed Forces”). As discussed in the NPRM and adopted in this final rule, the PRD Act is not applicable to foreign operators. Furthermore, the FAA does not have the technical capacity to accommodate reporting from non-U.S. operators. The FAA does not expect such entities to include any records in the PRD; however, reviewing entities are free to seek out information from any other previous employer for whom the pilot worked in addition to accessing the pilot's PRD record. As explained in the NPRM, the PRD Act requires all operators to request and review records prior to allowing an individual to begin service as a pilot. As a result, the Act's requirements apply to pilots of UAS when those UAS are used in air carrier operations. This rulemaking is limited to addressing the statutory mandate of the PRD Act; as a result, comments urging the FAA to initiate separate rulemakings are outside the scope of this rulemaking. C. Pilot Privacy The PRD Act requires the FAA to promulgate 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 operator. In the NPRM, the FAA proposed to mitigate risks to privacy by adopting strict privacy standards and establishing limits on access to the contents of the PRD. Specifically, the FAA will adhere to National Institute of Standards and Technology (NIST) Special Publication 800.53 Security and Privacy Controls for Federal Information Systems and Organizations to secure information contained in the PRD. 1. Summary of Comments Approximately 24 commenters, including A4A, the Cargo Airline Association (CAA), NBAA, and Cummins, Inc., expressed concerns related to privacy issues. A4A commented that notice of a pilot's death should be supported by a certified copy of a death notice from any source, not just from next of kin, in order to avoid overburdening the database with extraneous information and increasing the risk of privacy issues. Commenters remarked on the importance of keeping pilot records confidential and only maintaining sensitive pilot information related to termination of employment or unsatisfactory completion of airman flight checks, and expressed concern about the data security. Commenters recommended that pilots have control over who can access their records and asked whether pilots will have an opportunity to direct how the PRD will share their information. Commenters opposed the PRD on privacy grounds, stating that these pilots never signed up to have this information shared. Several commenters opposed including non-performance and non-aviation related disciplinary records. Cummins Inc. also asked who inside the FAA would have access to the database and who outside the FAA would have access to the database and non-anonymized data. NBAA commented that the information contained in the PRD should only be available to qualifying employers for the purpose of evaluating a pilot-applicant. The A4A and CAA called for the FAA to issue a Privacy Impact Assessment (PIA) 35 related to the PRD. The commenters stated a PIA is needed to address security and privacy risks of the PRD, given that the PRD will collect, access, use, and permit dissemination to prospective employers of pilot records. These commenters requested the FAA address issues such as the time the FAA expects for it to approve access to users, the training required of users, and applicable parameters that will ensure privacy. 35 A PIA describes a process used to evaluate the collection of personal data in information systems. The objective of a PIA is to determine if collected personal information data is necessary and relevant. The FAA also received comments on keeping records for the life of the pilot. Ameristar commented that if the FAA determines that any record should be expunged, the Agency should not maintain that record and referenced 49 U.S.C. 44703(i)(2)(A)(iii), which states that the FAA should not include records subsequently overturned. The commenter said that expungement and “overturned” as used in the PRD Act could mean the same thing, and that adding definitions of these terms would provide some clarity as to the treatment of the records. Ameristar commented that these records should not be maintained nor made available upon PRD request. The PlaneSense commenters stated they generally agreed with a dissent to the PRD ARC recommendation, which said that the FAA should remove and store, for an undefined period of time, deceased pilots' records from the PRD for security purposes or assistance with an investigation. CAPA disagreed with the requirement for retention of pilot records for the life of the pilot. The commenter stated that no data supports that information from an event that may have occurred years ago has any bearing upon a pilot's current or future performance. The FL Aviation Corp. commented that a request for a lifetime of records is itself onerous and far-reaching and could cause spillover by forcing the purchase or update of additional programs to retain additional data. An individual commenter expressed concern about “the code quality of the page where people register to use the Pilot Records Database,” and stated the DOT sign-up pages for MyAccess should not be used because of poor quality and security concerns. This commenter also stated that the system should undergo a third party review. A4A recommended the FAA clarify that information in the PRD may be shared with NTSB officials when investigating an accident or incident; however, all other protection provided in the NPRM should continue to apply. 36 36 The NPRM proposed to exclude records contained in the PRD from FOIA in accordance with the PRD Act, subject to certain exceptions. 2. FAA Response The FAA reiterates that the pilot is the only person with control over which external entities view that pilot's records in the PRD. A pilot must provide specific, time-limited consent to a reviewing entity before that entity is permitted to view a pilot's records. A reviewing entity can only query the PRD for records of pilots who have specifically granted consent to that operator. After the pilot grants consent for access to the records, the pilot must also provide the reviewing entity with the pilot's name and pilot certificate number before the entity can review the records. The FAA is obligated to ensure that only information that is relevant to a hiring employer's review of a potential employee is housed in the system. Limiting the data elements available to hiring employers is critical because the PRD Act requires the FAA to ensure pilot privacy is protected. Additionally, the pilot can withdraw consent at any time for PRD Airman Records (PARs). Records associated with a pilot are only released to an operator (a reviewing entity) after the pilot has created a PAR and consented to release of that specific PAR to that specific operator. When a pilot provides consent in these cases, the PAR is only available for a limited period of time, as selected by the pilot. Each PAR is a “snapshot” of the records as they existed at that moment when the PAR is generated and will not change even if the records in the original data source change. This ensures that the pilot knows exactly what is being displayed to the reviewing entity. When new records are added to the PRD and the pilot wants the PAR to encompass those records, the pilot must grant an updated consent to release the updated PAR, which will then replace the previous PAR. For this reason, while PARs can be available for up to 60 days, reviewing entities may prefer that a PAR be released to them more recently to ensure the PAR reflects the most recent information available. In addition to PARs only being available for a limited time period, the pilot can also revoke access to a PAR at any time. Reviewing entities that wish to review a PAR must also have the pilot's name and certificate number to retrieve the PAR. Even if a pilot has granted consent to the PAR, an operator will not be able to search for all available PARs without having the name and certificate number related to the PAR for which the entity is searching. The pilot will likely provide the pilot's name and certificate number to the hiring operator as part of the vetting process. If the operator attempts to search for a PAR, but the pilot has not yet granted consent to view the PAR, the PRD will report that no PARs were found for that pilot. Other than when a PAR has been created and specific consent has been provided to a reviewing entity to view that PAR, records within the PRD are only accessible to the record owner. As previously described, the record owner is normally the same entity which created the record; however, ownership can change in some circumstances. An operator that has entered records into the PRD can always view, edit, or remove those records later, as appropriate, as long as it continues to be the record owner. The PRD administrator will have the ability to view a pilot's records within the PRD for the limited purpose of supporting a pilot's request to release those records to a reviewing entity. This process is only used if the pilot cannot access the PRD system and specifically requests the FAA release a PAR to a reviewing entity. This will occur when the pilot submits a completed and signed FAA Form 8060-14 to the FAA for processing. Although the PRD administrator can view the records in the PRD associated with a pilot, the FAA does not access this information for any other purpose than to support a pilot's request to review that pilot's own information, made via FAA Form 8060-14, 37 and for other administrative purposes. With limited exception, the FAA will not be reviewing records in the PRD to search for instances of non-compliance with FAA regulations. The only circumstance in which the FAA would use records in the PRD in an FAA enforcement action would be in cases involving suspected non-compliance with Part 111. Records contained in the PRD could be used to prove instances of non-compliance with the PRD reporting requirements or the absence of records could be an indicator of non-compliance. In any event, the statutory exclusion of these records from release in response to a Freedom of Information Act request applies, with the exceptions listed in the PRD Act. The FAA is permitted to release records to NTSB officials when investigating an accident or incident. 38 37 A copy of FAA Form 8060-14 has been placed in the docket. 38 49 U.S.C. 44703(k). The PRD Act requires the FAA to maintain records in the PRD for the life of the pilot and does not provide the FAA with discretion to expunge records outside of that timeframe. The FAA acknowledges that there is no research indicating that maintaining records for the lifetime of a pilot imbues greater safety benefits than a more time-limited lookback such as what was required under PRIA. Expunction of a record is not the same as a record being overturned. For enforcement records, an action under appeal subsequently might change the outcome of the initial enforcement action. This could result in the enforcement record being overturned and subsequently expunged. Expunction also would occur when a pilot reaches 99 years of age or upon the FAA receiving a notification of death. The FAA agrees with A4A that a notification of death need not be submitted only by next of kin. Upon further consideration, the information required to be submitted is sufficient to ensure authenticity of the documentation and there is no safety or security concern that warrants limiting who is permitted to submit such information. With respect to the comment concerning the design code of MyAccess, the FAA protects personal identifiable information (PII) with reasonable security safeguards against loss or unauthorized access, destruction, usage, modification, or disclosure. These safeguards incorporate standards and practices required for federal information systems under the Federal Information Security Management Act (FISMA) and are detailed in the Federal Information Processing Standards (FIPS) Publication 200, Minimum Security Requirements for Federal Information and Information Systems, and NIST Special Publication 800-53. Detailed information regarding the steps taken to safeguard information for MyAccess is available in the Privacy Impact Assessment for MyAccess. 39 The FAA will publish an updated PIA for the PRD in the docket for this rulemaking, as referenced in Section VI.H., Privacy Analysis. 39 U.S. Department of Transportation Privacy Impact Assessment, May 31, 2017, https://www.transportation.gov/sites/dot.gov/files/docs/resources/individuals/privacy/282206/faa-myaccess-pia-05312017.pdf. D. Transition From PRIA to PRD The FAA proposed a transition timeline from PRIA to PRD. The FAA requested comments on whether the transition period should be shortened or extended and whether it would be helpful for the FAA to maintain a publicly available list of all operators that are fully compliant with the PRD requirements during the transition period. 1. Summary of Comments Writing jointly, the Families of Continental Flight 3407 stated that the crash of that flight underscores the criticality and urgency of finalizing the rule. The families called on the FAA, the U.S. Department of Transportation, and the Office of Management and Budget to finalize the rule as expediently as possible, to ensure every operator has access to the most complete information possible in hiring pilots. The families also noted that nearly a decade has passed since Congress required the PRD in August 2010. They further compared the current economic challenges the air carrier industry faces to challenges in the decade after September 11, 2001, which they state led to growth of regional airlines and cost-cutting measures that contributed to the preventable tragedy of Flight 3407. The group called on government and industry stakeholders to be cognizant of this history to ensure these mistakes are not repeated. The Regional Airline Association (RAA) and Atlas Air commented that, because it is difficult to predict the amount of time required for the transfer of data, the FAA might need to extend the transition period. The RAA recommended that during the transition period the FAA maintain a publicly available list of carriers and other operators that are fully compliant with the PRD ahead of schedule so that prospective employers can query the PRD directly. Atlas Air and A4A recommended similarly the FAA re-evaluate the sunset of PRIA requirements at the end of the transition period and extend it if not all affected carriers are in compliance with the PRD historical records requirement. Atlas Air highlighted that the uncertainties of the coronavirus disease 2019 (COVID-19) public health emergency may impact carrier compliance. A4A also recommended extensive industry participation in a test pilot program. 2. FAA Response The FAA acknowledges the wide range of comments received regarding the timing of the implementation of the PRD and the transition period between PRD and PRIA. The FAA agrees that expeditious implementation of the PRD is a top priority, but understands the potential technical challenges that could occur during the course of the transition. After consideration of comments on this topic, the FAA made changes to the compliance dates and added interim compliance markers to facilitate a smooth transition. These changes are discussed further in Sections V.A.2 and V.E. The interim compliance dates are for submission of the responsible person application, review of FAA records, review of industry records, reporting new records, and reporting historical records prior to the sunset of PRIA. This rule also provides the opportunity for certain operators to request a deviation in the event of unforeseen difficulties with the transfer of historical records. The PRD will also provide information regarding which employers have fully completed historical record upload for a particular pilot in order to eliminate any duplicative reporting during the transition period. The FAA intends to collaborate with industry by providing helpful information regarding the transition upon identification of responsible persons by each operator subject to this rule. V. Section-by-Section Discussion of Regulatory Text This section provides an explanation of substantive changes adopted in this final rule, as well as summaries of provision-specific comments and FAA responses. It should be noted that there are non-substantive revisions made throughout the regulatory text, such as section number changes or edits made for clarity and consistency. In the NPRM, the FAA proposed to include subpart E to facilitate the transition from PRIA to PRD. However, the FAA did not adopt a regulatory requirement for continued compliance with PRIA in this rule. Because PRIA continues to be self-implementing in statute until September 9, 2024, part 111 does not need to include a regulatory requirement for continued compliance with PRIA. The FAA provides updated guidance in AC 120-68J with further information about continued compliance with PRIA as related to PRD compliance. The FAA includes sunset of PRIA in subpart A and requirements for reporting historical records in subpart C. A. Subpart A—General 1. Applicability—Section 111.1 The FAA proposed that part 111 would generally be applicable to 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, governmental entities conducting public aircraft operations (PAO), as well as pilots with part 107 remote pilot certificates operating a UAS for compensation or hire. Substantively, the FAA adopts § 111.1 as proposed. After reviewing comments received on the applicability of the rule, discussed extensively in Section IV.B., the FAA acknowledges that pilots employed by the operators mentioned previously transition much less frequently than originally anticipated to employment with reviewing entities. This revised method of reporting is discussed in greater detail in Section V.C.4. Given that change, although the previously-mentioned entities are still subject to part 111, the burden imposed is proportionate to the level of risk mitigation necessary to fulfill the intent of the PRD Act. The FAA amends the regulatory text proposed originally in § 111.1 for consistency and to clarify which pilots are subject to the applicability of the PRD. The proposed text captured which certificates a pilot would typically hold in order to be subject to the PRD, but did not note that only pilots who are employed by or seeking employment with an entity subject to the applicability of this part would need access to the database. The final rule removes the reference to the specific certificates pilots hold, and instead includes a requirement that would apply to any pilot working for a reporting entity or seeking employment with a reviewing entity. The FAA also moved the applicability criteria for persons whom the FAA defined in the NPRM as “corporate flight departments” (referenced as such in this preamble) into § 111.1(b)(4). The FAA amends the criteria for a corporate flight department to include not only those who operate two or more type rated airplanes but also those who operate two or more turbine-powered rotorcraft, or any combination of two or more of those aircraft. By adding turbine-powered rotorcraft to this criteria, this rule applies to operators that operate more than one complex aircraft under part 91. After reviewing comments on corporate flight departments, as described in Section IV.B., the FAA determined the definition proposed in the NPRM inadvertently excluded turbine-powered rotorcraft operators. These turbine-powered rotorcraft operators generally utilize advanced aircraft under part 91; thus, their contributions to the PRD are as meaningful for safety as those operating type-rated airplanes. The FAA also adds applicability criteria for PAO, which references the statutory definition and criteria for PAO under 49 U.S.C. 40102 and 40125, but does not include operations conducted by any branch of the United States Armed Forces, National Guard, or reserve component of the Armed Forces. This applicability provision aligns directly with the PRD Act. The FAA also adopts regulatory text to provide criteria for when a trustee in bankruptcy must comply with the requirements of part 111, proposed originally in its own section in the NPRM. The FAA proposed that any operator subject to the applicability of part 111 that files a petition for bankruptcy would still be required to report records to the PRD. The FAA proposed that the trustee appointed by the bankruptcy court may act as the responsible person for reporting those records to the PRD. This section is adopted as proposed with non-substantive edits, one of which notes that a trustee must comply with the reporting requirements of subparts A and C of part 111. While the NPRM only listed subparts C and E, the terms of access in subpart A would also be applicable to a trustee. Sections V.A.3 and V.C.11 contain summaries of, and responses to, comments about requirements related to a trustee in bankruptcy. Lastly, this rule contains a reference to 14 CFR part 375 (Navigation of Foreign Civil Aircraft within the United States), expressly to exclude foreign operators from the applicability of this rule. Although foreign operators are regulated by 14 CFR part 375, as discussed in the NPRM, Congress did not include those operators in the PRD Act. 2. Compliance Dates—Section 111.5 In the NPRM, the FAA proposed compliance with part 111 by two years and 90 days after publication of the final rule. The FAA revises the proposed compliance dates in this final rule. The compliance dates specific to each section or subpart were moved to the applicable section or subpart for clarity. Section 111.5 provides the final date by which full compliance with the provisions of part 111 is required. The FAA considered comments on the transition from PRIA to PRD, further discussed in Section IV.D., and how to facilitate a smooth transition to full compliance with the PRD for both industry and the FAA. Upon consideration, the FAA determined that it would not negatively affect safety to extend the final date of compliance, primarily because the final rule adopts interim compliance dates set between publication and September 9, 2024, to ensure persons subject to the rule begin using the PRD before the final compliance date. The compliance period is longer than originally proposed, but also begins with specific steps towards compliance earlier than originally proposed. As a result of the revised compliance dates, industry would begin reporting new records and historical records dated on or after January 1, 2015 one year after publication of the final rule. The extra year granted for extended compliance serves to provide a full two years of transition time for upload of historical records. The FAA's primary objective in adopting this final rule with interim compliance dates is to be able to start extensive and necessary collaboration with industry to populate the PRD with the highest quality data. Additionally, the FAA is extending the compliance timeline because the FAA is developing a method of electronic transfer to facilitate reporting of large amounts of historical records simultaneously. This will ease the process of reporting historical records for operators reporting records from 2005 and 2010, respectively. The FAA is committed to working with industry to enable a smooth transition from PRIA to PRD and desires the least burdensome process possible for record transfer. If the FAA is not able to provide a method of electronic transfer prior to the final compliance deadline, the FAA will consider extending the compliance date. The FAA originally included subpart E in the proposed rule, which stated that air carriers and other operators subject to the applicability of PRIA would no longer be permitted to comply with PRIA two years and 90 days after publication of the final rule. The FAA adopts that section here. Some commenters recommended that the FAA continue PRIA; however, as the FAA discusses in Section IV.C.4 regarding comments about the transition to PRD, the PRD Act includes an explicit requirement that the FAA's implementing regulations for PRD must sunset PRIA. This section is amended to incorporate the extension of the final compliance deadline by one year. Use of PRIA is no longer permitted after September 9, 2024. 3. Definitions—Section 111.10 The FAA proposed several definitions in the NPRM. In response to comments received, the FAA amends several definitions to capture accurately the intent of the requirement and maintain consistency with other sections of part 111. The FAA also removed some definitions proposed in the NPRM after determining they were redundant or did not need to be codified. i. Comments Received NBAA commented on the FAA's proposal to define the term “employed” as being paid for more than 20 hours per week for services rendered to the operator. NBAA explained it expects this definition to apply when describing individuals eligible to be the operator's responsible person and to the term “individual employed as a pilot.” NBAA contended operators should not be responsible for submitting records for pilots who are employed less than half time, as this will avoid duplication of training records. NBAA also recommended aligning the definition of “employed” with the common industry practice of employing contractors on a daily basis. NBAA recommended that the FAA use the defined phrase “individual employed as a pilot” in § 111.105 when describing when a hiring operator needs to evaluate pilot records. The PlaneSense commenters noted the proposed definition of “individual employed as a pilot” assumes the pilot is employed by the company at the time the pilot first undertakes training, creating an obligation to provide data on a pilot who may be receiving training, but is not yet an employee and may not become an employee. These commenters argued the definition is overly broad and that training records could be used against them by a future employer. The PlaneSense commenters stated such a requirement would circumvent an employer's and applicant's right to privacy regarding screening and hiring practices. These commenters requested the FAA revise the rule to reflect that the pilot has been hired or otherwise retained by the reporting company. Cummins, Inc., A4A, and Ameristar expressed concern that the NPRM did not include a clear definition of “pilot performance.” Cummins urged the Agency to include clear guidelines regarding what constitutes pilot performance and flying duties to ensure a consistent understanding of the data to be included in the database. Ameristar recommended amending the definition of “Record pertaining to pilot performance” to identify specific events that must be maintained in the record, and that these events be limited to events required by law or regulation; for example, the term should include records of whether a pilot passed or failed a proficiency check. Ameristar recommended the FAA define additional terms such as “good faith” and “trustee in bankruptcy” for clarity and to remove subjectivity. Ameristar also suggested a “trustee in bankruptcy” be expanded to “a trustee in bankruptcy of an air operator that hires or utilizes pilots.” Regarding the discussion about part 135 operators, Ameristar noted that the rule did not distinguish part 135 operators from part 135 air carriers. Ameristar indicated the proposed definition of “historical record” suggests the record is only generated after another operator requests that record. Ameristar recommended that the FAA amend the definition to read “. . . means records maintained by an air carrier or other operator under the requirements of this section (§ 111)” and delete the rest of the proposed definition. A4A argued similarly that the FAA should clarify the meaning of “pertaining to pilot performance.” Specifically, A4A asserted the proposed rule fails to resolve one of the key issues that divided the members of the PRD ARC; namely: Whether the disciplinary or termination records of a pilot who committed documented acts of racial discrimination, sexual harassment, harassing or intimidating behavior that impedes crew resource management, off-duty alcohol or drug misconduct, theft, fraud and/or dishonesty should be reported into the PRD. A4A noted that the issue of drawing boundaries around the “performance of a pilot” split the PRD ARC members and constituted almost 20% of the PRD ARC Report. A4A suggested that some language in the NPRM could be read to support the position that records of actions such as harassment and lying should not be entered into the PRD, but that other aspects of the NPRM, FAA regulations, legislative history, and general good piloting practices would strongly support the submission of the grounds for the discipline and termination into the PRD. A4A stated that parties need definitive guidance from the FAA on how to handle the records of pilots who commit serious misconduct. Without a specific definition, A4A argued, whether a specific act is “related to the core duties and responsibilities of a pilot” will differ from employer to employer and may even differ within a single employer's pilot population as the phrase becomes subject to disputes leading to arbitration and third-party resolution. A4A recommended that the final rule clarify what is included in a pilot's “core duties and responsibilities” and specifically address “whether it includes crew resource management considerations and the obligation to treat all persons with dignity and respect.” NBAA recommended that the FAA use consistent phrasing throughout the document and noted the need for consistency in the use of the words “air carrier” and “other operators.” For example, NBAA stated that based on the proposed language in § 111.220 it was not clear if the reporting requirements apply to “other operators.” An individual commenter stated “other persons” is vague and arbitrary and urged the FAA to define the term and open the definition for public comment. This commenter also noted the NPRM did not define the term “public aircraft operations.” ii. FAA Response The FAA revises the definition of “begins service as a pilot” to distinguish at what point the FAA considers a pilot to have begun service with an employer such that a PRD evaluation must have been completed for that pilot. This date is in contrast to the “PRD date of hire” which is the first date on which an employer must begin entering records for a pilot. The “PRD date of hire” would include initial training and other training completed prior to beginning service as a required flight crewmember. The FAA also incorporates part of the proposed definition of “Individual employed as a pilot,” which was duplicative of the definition of “begins service as a pilot,” and adds that the individual can be employed directly or on a contract basis. Commenters conflated the review of an individual's records, which is not required to be complete until the individual begins service as a pilot, with when records must be reported about an individual, which will include any training that occurs prior to a pilot becoming a required flight crewmember. All records generated about a pilot from the PRD date of hire by the employer will be subject to the applicability of the PRD. For the purposes of reporting records to the PRD, the “PRD Hire Date” means the earliest date on which an individual is expected to begin any form of company required training or to perform any other duty for an operator subject to the applicability of part 111 in preparation for the individual's service as a pilot, including both direct employment and employment that occurs on a contract basis for any form of compensation. The NTSB expressed an interest in ensuring all records applicable to events prior to beginning service as a pilot would be captured in the PRD, discussed further in Section III.A.1. The FAA intends to capture any records that an operator may generate about a pilot in the time between when a pilot begins training and the time a pilot is actually assigned to act as a required flight crewmember. The FAA does not agree with commenters who asserted that training records that occur when a pilot is beginning employment with an operator should not be included in the PRD. As discussed further in Section V.F.3, the FAA and other commenters believe those records have significant value to a potential hiring employer. Any training that occurs prior to a pilot's actual employment with an operator would not be included in the PRD due to the constraints of the PRD Act, but if the pilot is receiving training and any form of compensation for that training, the FAA will consider that pilot to be employed for purposes of part 111. The FAA defines “begins service as a pilot” to mean the earliest date on which a pilot serves as a pilot flight crewmember or is assigned duties as a pilot in flight for an operator that is subject to the applicability of this part. This definition applies when a pilot's records must have been evaluated prior to allowing a pilot to begin service. This means an operator could hire a pilot and begin training before evaluating all of the records in the PRD. However, a pilot cannot be assigned to pilot duties without the operator having evaluated the records in the PRD. Some commenters were concerned with how the definition of “employed” was used in the proposal. “Employed” in the context raised by NBAA refers to proposed criteria for a responsible person, described in the preamble of the NPRM, with no relationship to a pilot's employment with an operator for purposes of reporting pilot records to the PRD. For the purpose of accessing the PRD, the proposed rule considered a responsible person for an entity conducting public aircraft operations or corporate flight department must be paid for more than 20 hours a week for services rendered to the operator. After considering comments, the FAA is not adopting the NPRM preamble description of “employed” as an eligibility factor for a responsible person. The FAA amended the definition of “final separation from employment record” by removing the list of examples of separation from employment actions, which had included resignation, termination, physical or medical disqualification, professional disqualification, furlough, extended leave, or retirement. This revision reduces redundancy with the updated requirements in this rule, which address this subject adequately by describing the different possible categorizations for separation from employment actions in subpart C of part 111. The FAA amends the definitions of “final separation from employment action” and “final disciplinary action” to reflect that it is incumbent on the operator to determine at what point a disciplinary or separation action is final and therefore subject to either reporting requirement in the PRD. Each operator has sufficient knowledge and oversight over its own processes for handling disciplinary action; therefore, the operator is in the best position to determine that an action is not subject to a pending dispute, which would include any legal proceeding regarding the final result of that action. Once no longer pending, including a record of it is appropriate. Section V.C.7 includes a description of the comments the FAA received on this topic. In response to comments asking for clarification of training records pertaining to pilot performance, the FAA publishes an Advisory Circular, AC120-68J 40 with this rule that includes specific lists of events which the FAA expects to be entered into the PRD based on the training program for a particular pilot. The FAA intends that if a record exists for the pilot as described at § 111.225 and as further described in the AC, and the record is retained by the reporting entity, then it must be entered into the PRD. Each record type that an operator will report is described by the event that prompts the reporting requirement. The FAA considered including the specific listing in part 111, but determined that approach would limit the reporting flexibility needed as training and checking evolves in the future. The FAA also removed the reference to the FAA from this definition, because roles and responsibilities assigned by an employer inherently are subject to FAA regulations or other regulations without explicit mention in this definition. 40 Advisory Circular 120-68J, The Pilot Records Database and Pilot Records Improvement Act Advisory Circular, which will be published to the docket for this rulemaking. The FAA further establishes in this final rule what the Agency considers to be a record associated with pilot performance. In § 111.10, the FAA defines a record pertaining to pilot performance as records of an activity or event directly related to an individual's completion of the core duties and responsibilities of a pilot to maintain safe aircraft operations. The duties and responsibilities are assigned by the employer and are based on FAA regulations or other applicable regulations, such as the Transportation Security Administration or the Pipelines and Hazardous Materials Safety Administration. Ultimately, the employer reporting the record would determine whether the action causing the employer to terminate the pilot's employment affected safe aircraft operations, as it is a case-by-case determination. Situations may occur in which a pilot's behavior or actions are not directly related to operating the aircraft but still affect that pilot's ability to maintain safe aircraft operations. One example of this would be documented harassment of a coworker who operates an aircraft with that pilot, regardless of whether the harassment occurs during flight operations. Fear of harassment could negatively affect safe aircraft operations. The FAA does not believe that it should preclude an employer from considering such an event as related to a pilot's performance if that employer believes the event is fundamentally related to maintaining safe aircraft operations, which includes effective crew resource management. Overall, because good judgment by the pilot is a critical part of safe aircraft operation, pilot performance could include events other than those strictly related to a pilot's level of skill in operating an aircraft. The FAA removed the definitions of “air carrier,” “other operator,” and “participating operator” from this final rule because those definitions were duplicative of applicability requirements. Where the FAA refers to “operators” in the regulatory text and the preamble, it is referring generally to all operators, including air carriers and other certificate holders, who would be subject to the applicability of this part. After review and evaluation of the comments, the FAA amended the definition of “historical record” to remove the reference to the Administrator, as it was not necessary. In addition, this rule contains an amended applicability provision describing PAO, which provides specific criteria based directly on applicable statutory provisions. This rule includes two definitions not proposed in the NPRM, to add clarity to the regulatory text regarding which operators are subject to each requirement. The FAA defines Reviewing entity as an operator subject to the applicability of subpart B of part 111 (Access to and Evaluation of Records); and Reporting entity as an operator subject to the applicability of subpart C of part 111 (Reporting of Records). These definitions do not substantively change part 111. The FAA did not adopt a regulatory definition of “access the PRD,” but confirms its meaning is to use the credentials issued by the Administrator in accordance with this part to retrieve information related to an individual pilot, to report to the PRD information required by this part, or for a responsible person to manage user access. A pilot also would access the PRD to grant consent to a reviewing entity to access that pilot's records. Lastly, this rule does not include a definition of writing/written in part 111. The FAA will provide the appropriate signature requirements within the identity verification mechanism of PRD approval, as the FAA expects the PRD will accept digital signatures. Digital verification of the pilot's identity by logging into the PRD could also serve as a signature. The FAA otherwise adopts § 111.10 substantively as proposed. The FAA evaluated all comments regarding perceived lack of clarity or inconsistency in phraseology used and made updates to the final rule to convey clearly the requirements of each section. The FAA determined that prescriptive definitions of “good faith exception” and “trustee in bankruptcy” were not necessary, because the underlying regulations concerning these terms describe them adequately in context of the applicable requirements. This rule also contains edits throughout part 111 to maximize regulatory clarity, which alleviates the need include the other definitions that commenters requested. 4. Application for Database Access—Section 111.15 In the NPRM, the FAA proposed requiring an operator's responsible person to submit an application for database access including information necessary for identity verification. The proposed rule included the ability for a responsible person to delegate PRD access to two other types of users (proxies and authorized users) and proposed minimum qualification requirements for the responsible person. Proposed § 111.15 also included terms for continuing access to the PRD, requirements for changes to application information, and timelines for compliance for new operators subject to this part. This rule revises paragraph (a) to include an updated interim compliance date in which reporting entities must submit an initial application for database access. After considering comments received regarding observed gaps in PRIA, particularly those received from the NTSB and the Families of Continental Flight 3407, the FAA determined PRD implementation would be served best by ensuring employers subject to the rule begin to transition from PRIA to PRD as soon as possible. The FAA also acknowledges comments received requesting greater collaboration with industry and more time to enable compliance, especially considering potential technological difficulties and the effects of the COVID-19 public health emergency on the aviation industry. The next step in building the industry records component of the database and facilitating its use is to ensure each operator subject to the applicability of this rule has identified a responsible person in the database. The PRD program manager will collaborate with that individual on the transition process. Consequently, the FAA includes a provision in § 111.15(a) requiring operators to submit an application with all of the information identified in § 111.15 by September 8, 2021. Operators initiating operations after September 8, 2021, must submit an application at least 30 days prior to initiating operations. Additionally, trustees in bankruptcy appointed for an operator subject to the applicability of this rule must begin to comply with the transition timelines of this rule as prescribed by part 111, as applicable. Because a trustee can either be delegated access or apply to be a responsible person, the FAA does not envision that every trustee would submit an application, but to the extent a trustee would be a responsible person and is currently appointed in accordance with the criteria in this section, the FAA would expect that trustee to submit an application if the trustee will be a responsible person. The FAA makes clarifying amendments throughout the regulatory text in § 111.15(b)-(h), but does not make any other substantive changes to the requirements for the application for database access, except to require submission of a telephone number to accompany the email address. In response to a comment from CAA regarding how long the FAA expects to take to approve the PRD user access, the FAA requests applicants submit their applications one week in advance of necessary access. 5. Database Access—Section 111.20 Proposed § 111.20 set forth the conditions under which authorized users and proxies, to whom a responsible person has delegated access, may access the PRD. Notably, persons may only access the PRD for purposes of uploading, reviewing, or retrieving records in accordance with the requirements of part 111. The FAA also proposed that if a responsible person's PRD access is terminated, the access of the authorized users and proxies may be terminated. The FAA modifies proposed § 111.20 to consolidate parts of the section and to convey the FAA's intent to limit access to the PRD in a manner that is aligned entirely with the purpose of the PRD Act. A person may access the PRD only in a manner consistent with the purposes set forth in this section: For reporting pilot records or for reviewing pilot records to inform a hiring decision about a specific pilot. The responsible person is accountable for ensuring that any person accessing the PRD complies with part 111 when reporting or reviewing records on behalf of the responsible person. Further, under this final rule and in accordance with the PRD Act, proxy companies will not be permitted to collect PRD data about any pilot for use by that company outside its specific employment with a particular operator for reporting or review of an individual pilot's records. “Skimming” or otherwise aggregating pilot data outside of the PRD for re-sale or to provide a list of pre-screened pilots is strictly prohibited both by § 111.20 and 49 U.S.C. 44703(i). Lastly, as proposed in the NP [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3A2021-11424. Public record. Not legal advice.