Rule2021-11424
Pilot Records Database
Primary source
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Published
June 10, 2021
Effective
August 9, 2021
Issuing agencies
Transportation DepartmentFederal Aviation Administration
Abstract
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.
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<title>Federal Register, Volume 86 Issue 110 (Thursday, June 10, 2021)</title>
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[Federal Register Volume 86, Number 110 (Thursday, June 10, 2021)]
[Rules and Regulations]
[Pages 31006-31067]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2021-11424]
[[Page 31005]]
Vol. 86
Thursday,
No. 110
June 10, 2021
Part II
Department of Transportation
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Federal Aviation Administration
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14 CFR Parts 11, 91, and 111
Pilot Records Database; Final Rule
Federal Register / Vol. 86 , No. 110 / Thursday, June 10, 2021 /
Rules and Regulations
[[Page 31006]]
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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.
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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 Sec. 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 Sec.
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 Sec. 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 <a href="/cdn-cgi/l/email-protection#abc8c3d9c2d8dfc4dbc3ced985c6c4d9d9c2d8ebcdcaca85ccc4dd"><span class="__cf_email__" data-cfemail="47242f352e343328372f2235692a2835352e340721262669202831">[email protected]</span></a>.
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\
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\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.
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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
Sec. 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.
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\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 Sec.
125.3. This criteria is provided in Sec. 111.1(b)(4).
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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
[[Page 31007]]
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:
<bullet> Remove the proposed user fee to access the database for
review of pilot records.
<bullet> 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.
<bullet> 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.
<bullet> Amend the compliance schedule, as set forth in the table
below:
Table 1--Timeline for Reporting and Reviewing Responsibilities
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Three years and
Date 90 Days after 180 Days after One year after Two years after 90 days after
publication publication publication publication publication
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Event.......... Submit application Reviewing entities Begin reporting Complete Compliance with
for database use the PRD for current pilot historical PRIA will no
access. the FAA records records, record reporting longer be
review. historical for records available as an
records; begin dating on or alternative to
reviewing after January 1, PRD; full
operator records 2015. compliance with
in the PRD. PRD required.
Historical
record upload
complete.
Entity......... Reporting entities Reviewing entities Reporting Reporting Reporting
and reviewing entities and entities subject entities,
entities. reviewing to Sec. reviewing
entities. 111.255. entities.
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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 Sec. 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 Sec. 91.147,
[[Page 31008]]
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:
<bullet> Records related to current pilot and medical certificate
information, including associated type ratings and information on any
limitations to those certificates and ratings;
<bullet> 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;
<bullet> 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
<bullet> 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
[[Page 31009]]
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 $3.2 million annualized. After
the discontinuance of PRIA, the annual recurring cost savings will more
than offset the recurring annual costs of the rule.
The following table summarizes the benefits, costs, and cost
savings of the rule to industry and the FAA.
Table 2--Summary of Benefits, Costs, and Cost Savings
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Benefits
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<bullet> Promotes aviation safety by facilitating operators'
consideration of pilot skill and performance when making hiring and
personnel management decisions.
<bullet> Provides faster retrieval of pilot records compared to PRIA.
<bullet> Reduces inaccurate information and interpretation compared to
PRIA.
<bullet> Provides easier storage of and access to pilot records than
PRIA.
<bullet> Allows pilots to consent to release and review of records.
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Summary of costs and cost savings * ($millions)
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10-Year 10-Year
Category present value Annualized present value Annualized
(7%) (7%) (3%) (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
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* 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.
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\4\ Public Law 111-216, 124 Stat. 2348 (Aug. 1, 2010).
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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
[[Page 31010]]
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.
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\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.
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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\
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\6\ See NTSB Report AAR-04/03 (Adopted October 13, 2004) at page
47, which can be obtained at <a href="http://www.ntsb.gov/investigations/AccidentReports/Reports/AAR0403.pdf">http://www.ntsb.gov/investigations/AccidentReports/Reports/AAR0403.pdf</a>.
\7\ See NTSB Report AAR-04/03 at page 43.
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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 <a href="http://www.ntsb.gov/safety/safety-recs/RecLetters/A05_01_02.pdf">http://www.ntsb.gov/safety/safety-recs/RecLetters/A05_01_02.pdf</a>.
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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\
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\9\ NTSB Report AAR-10/01 at 155 (Feb. 2, 2010), available at
<a href="http://www.ntsb.gov/investigations/AccidentReports/Reports/AAR1001.pdf">http://www.ntsb.gov/investigations/AccidentReports/Reports/AAR1001.pdf</a>.
\10\ Id.
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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.
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\11\ Id.
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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\
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\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 <a href="https://www.ntsb.gov/safety/safety-recs/recletters/A-10-010-034.pdf">https://www.ntsb.gov/safety/safety-recs/recletters/A-10-010-034.pdf</a>.
\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 <a href="https://www.ntsb.gov/safety/safety-recs/recletters/A-10-010-034.pdf">https://www.ntsb.gov/safety/safety-recs/recletters/A-10-010-034.pdf</a>. 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
[[Page 31011]]
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 <a href="https://www.faa.gov/documentLibrary/media/Advisory_Circular/AC_120-68G.pdf">https://www.faa.gov/documentLibrary/media/Advisory_Circular/AC_120-68G.pdf</a>.
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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\
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\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.
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\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 <a href="https://www.faa.gov/news/fact_sheets/news_story.cfm?newsId=11125">https://www.faa.gov/news/fact_sheets/news_story.cfm?newsId=11125</a>.
\19\ Advisory Circular--Pilot Records Improvement Act of 1996
(July 2, 2010), available at <a href="https://www.faa.gov/documentLibrary/media/Advisory_Circular/AC%20120-68E.pdf">https://www.faa.gov/documentLibrary/media/Advisory_Circular/AC%20120-68E.pdf</a>.
---------------------------------------------------------------------------
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 <a href="http://www.faa.gov/regulations_policies/rulemaking/committees/documents/media/PRD.ARC.cht.20110203.pdf">http://www.faa.gov/regulations_policies/rulemaking/committees/documents/media/PRD.ARC.cht.20110203.pdf</a>.
\21\ The ARC report is available in the public docket for this
rulemaking and is also available at <a href="https://www.faa.gov/regulations_policies/rulemaking/committees/documents/index.cfm/document/information?documentID=312">https://www.faa.gov/regulations_policies/rulemaking/committees/documents/index.cfm/document/information?documentID=312</a>.
---------------------------------------------------------------------------
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
[[Page 31012]]
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\ <a href="http://www.faa.gov/other_visit/aviation_industry/airline_operators/airline_safety/info/all_infos/media/2011/InFO11014.pdf">http://www.faa.gov/other_visit/aviation_industry/airline_operators/airline_safety/info/all_infos/media/2011/InFO11014.pdf</a>.
\24\ Pilot Records Database--Status Update <a href="http://www.faa.gov/other_visit/aviation_industry/airline_operators/airline_safety/info/all_infos/media/">http://www.faa.gov/other_visit/aviation_industry/airline_operators/airline_safety/info/all_infos/media/</a> 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 <a href="http://www.faa.gov/documentLibrary/media/Notice/N_8900.279.pdf">http://www.faa.gov/documentLibrary/media/Notice/N_8900.279.pdf</a>. 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.
[[Page 31013]]
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 Sec. 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).
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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 Sec. 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
[[Page 31014]]
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.
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\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
[[Page 31015]]
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\
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\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 Sec. 111.220.
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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 Sec. 61.31(a), in furtherance of, or incidental
to, a business, or operators holding a letter of deviation authority
under Sec. 125.3. This rule removes the proposed definition from Sec.
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
[[Page 31016]]
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\
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\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
[[Page 31017]]
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\
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\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, <a href="https://www.transportation.gov/sites/dot.gov/files/docs/resources/individuals/privacy/282206/faa-myaccess-pia-05312017.pdf">https://www.transportation.gov/sites/dot.gov/files/docs/resources/individuals/privacy/282206/faa-myaccess-pia-05312017.pdf</a>.
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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
[[Page 31018]]
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 Sec.
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 Sec. 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 Sec.
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 Sec. 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
[[Page 31019]]
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 Sec.
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
(Sec. 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
[[Page 31020]]
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 Sec. 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.
[[Page 31021]]
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 Sec. 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 Sec.
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 Sec. 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
Sec. 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 Sec. 111.15(a) requiring operators to submit an
application with all of the information
[[Page 31022]]
identified in Sec. 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 Sec. 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 Sec. 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 Sec. 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
Sec. 111.20 and 49 U.S.C. 44703(i).
Lastly, as proposed in the NPRM and as adopted in this final rule,
PRD access for authorized users and proxies is contingent on the
continued validity of the responsible person's electronic access.
6. Denial of Access--Section 111.25
The NPRM proposed that access credentials for the PRD would be
subject to duration, renewal, and cancellation for a length of time to
be determined by the Administrator. The FAA also proposed conditions
under which the FAA could deny access to the PRD due to misuse of the
database, including intentionally reporting inaccurate information, and
as necessary to protect the security of the PRD. The FAA proposed
denying access if an operator's operating authority is revoked. The
proposed rule included a procedure for reconsideration of denial of
access.
The FAA revises and reorganizes Sec. 111.25 to remove duration,
renewal, and cancellation of responsible person credentials, and
modifies the title of the section accordingly. Those provisions did not
specify a timeframe for any of those activities as it relates to the
electronic credentials because the duration depends on the vendor
providing the identity verification. Because multiple ways exist for
complying with application submittal, identity verification, and
approval for access, the FAA will provide further detail regarding the
technological specifications of user accounts. As stated in the NPRM,
the PRD will comply with all Federal guidelines for electronic
databases. The final rule retains the proposed provisions for denial of
access in this section, because the section contains the criteria under
which database access may be denied and does not contain specific terms
based on changing technology the PRD might use. The final rule also
adds an intent requirement to one of the stated bases for denial of
access, such that the intentional reporting of false or fraudulent
information to the database is an enumerated reason to deny access.
The final rule further authorizes denial of access if the FAA
suspends an operator's operating authority, such as a letter of
authorization or operating certificate. This provision is otherwise
adopted as proposed.
7. Prohibited Access or Use--Section 111.30
The FAA proposed to prohibit unauthorized access or use of the PRD,
including a prohibition on sharing records with anyone not directly
involved in the hiring decision. The FAA adopts Sec. 111.30 as
proposed, except for a change to permit a pilot to share the pilot's
own PRD airman record (PAR) without being subject to the prohibitions
in part 111.
The FAA did not adopt the proposed definition of ``directly
involved in the hiring decision'' as it is unnecessary. As stated in
the NPRM, that phrase means:
[A]ny individual who is responsible for making pilot hiring
decisions on behalf of the employer or who is responsible for
advising the decision maker on whether or not to hire an individual
as a pilot.
Pilot records must not be shared outside of persons working on behalf
of a reviewing entity in furtherance of that specific hiring process.
In the NPRM, the FAA proposed to require air carriers and other
operators complying with subpart B to maintain the privacy and
confidentiality of pilot records, as required by the PRD Act at 49
U.S.C. 44703(i)(13). Specifically, the FAA proposed to require air
carriers and other operators to secure pilot records in the normal
course of business. The FAA adopts that proposed provision in this
section with revisions to mirror the statutory standard for protection
of such records. The intent of the regulation as proposed does not
change; for example, if a hiring employer rendered pilot information
insecure by distributing that pilot's PAR throughout the company to
individuals not directly involved in the hiring process, the hiring
employer would be in violation of this regulation.
In the NPRM, the FAA proposed to mitigate risks to privacy by
adopting strict privacy standards and establishing limits on access to
the PRD, and adopts those standards throughout this part. Specifically,
the FAA will adhere to National Institute of Standards and Technology
(NIST) Federal Information Security Management Act (FISMA) 800.53
Security and Privacy Controls for Federal Information Systems and
Organizations to secure information contained in the PRD. The FAA
further discusses issues raised by commenters with respect to pilot
privacy in Section IV.C.
The FAA also removed paragraph (c) concerning the Administrator's
access and use of information maintained in the database for purposes
consistent with oversight. The FAA determined that while it will use
its oversight
[[Page 31023]]
authority to ensure compliance with part 111, it was not necessary to
codify the statement in the regulations.
8. Fraud and Falsification--Section 111.35
The FAA proposed to prohibit fraudulent or intentionally false
statements from being reported to the PRD. The FAA adopts Sec. 111.35
substantively as proposed, with edits to the regulatory text to
reorganize the section. Section V.C.11 contains a summary of, and
response to, comments the FAA received regarding the inclusion of false
or fraudulent statements as it relates to the record correction and
dispute resolution process.
9. Record Retention--Section 111.40
In proposed Sec. 111.50, the FAA proposed to require records
remain in the PRD for the life of the pilot. The proposed rule stated a
pilot's records would be removed from the database upon notification of
death from next of kin or when 99 years have passed since the
individual's date of birth. The FAA adopts this provision with one
substantive change, reorganizes the section, and renumbers it as Sec.
111.40. As summarized in Section IV.C and in response to comments, the
FAA is removing the requirement that the notification of death come
from the pilot's next of kin. The FAA also removed the record retention
instructions for such records from this regulatory provision. The
record retention term absent the notification of death described in
this section is captured in the appropriate record retention schedule.
The removal of this term from the regulatory text does not affect the
FAA's requirements for such information.
Although identifying information from the pilot's record will be
removed after notification of death or 99 years have passed since the
individual's date of birth, the FAA may use de-identified information
from those pilots in the database for research and statistical purposes
to further the Agency's safety mission.
10. Sections Not Adopted
i. User Fee--Proposed Section 111.40
Previously, Sec. 111.40 contained the FAA's proposal for a user
fee for accessing the PRD to evaluate pilot records. The FAA received
comments from both organizations and individuals regarding the proposed
user fee, most expressing opposition. Commenters were concerned about
the cost of the fee and how a fee would affect a reviewing entity's
ability to view a pilot's PAR multiple times. Commenters also proposed
different ways of adjusting the fee, which would have either benefited
smaller operators or large operators depending on the method.
After considering the comments received and the changes to the
structure of the database to ensure a burden proportionate to the
safety benefits of this rule, the FAA determined to withdraw the user
fee proposal, for multiple reasons. The new method of reporting in
Sec. 111.215 may require a reviewing entity to access a pilot's PAR
more than once. Uncertainties also exist regarding how COVID-19 will
impact hiring for reviewing entities, which would affect the user fee
analysis. Therefore, no fee will exist for accessing the PRD at this
time. The FAA will continue to evaluate the cost of the PRD and may
revisit this determination at a later time.
ii. Freedom of Information Act (FOIA) Requests--Proposed Section 111.45
Under Sec. 111.45, the FAA proposed that PRD records would be
exempt from FOIA, with some exceptions, as set forth in 49 U.S.C.
44703(i)(9)(B). Specifically, information reported to the PRD would be
subject to disclosure as follows: (1) De-identified, summarized
information may be disclosed to explain the need for changes in
policies and regulations; (2) information may be disclosed to correct a
condition that compromises safety; (3) information may be disclosed to
carry out a criminal investigation or prosecution; (4) information may
be disclosed to comply with 49 U.S.C. 44905, regarding information
about threats to civil aviation; and (5) such information as the
Administrator determines necessary may be disclosed if withholding the
information would not be consistent with the safety responsibilities of
the FAA.
a. Comments Received
A4A, the PlaneSense commenters, and an individual commented on
proposed Sec. 111.45, which addresses the FOIA requests. The
commenters generally agreed with the proposal to exempt certain
information reported to the PRD from disclosure in response to FOIA
requests but relayed specific concerns regarding the language of the
section or on the scope of the information permitted to be released.
A4A also recommended the FAA clarify the definition of ``de-identify,''
and what information can be shared with NTSB officials, and that
carriers should have the ability to limit access to certain kinds of
records. A4A stated that the FAA must state explicitly whether it
intends to use PRD data for purposes other than to meet PRD
requirements. It also commented that the NPRM permits disclosure of
information to correct a condition that compromises safety, consistent
with an exception codified in part 193. The commenter said that the
language in part 193 exceptions includes ensuring ``that the holder of
an FAA certificate is qualified for that certificate, and preventing
ongoing violations of safety or security regulations.'' The commenter
stated this raises the issue of whether the FAA intends to use the
submitted information to take enforcement action.
The PlaneSense commenters and another individual recommended
eliminating any reference to criminal investigation or prosecution and
providing that the information may only be disclosed pursuant to a duly
issued court order or subpoena. The PlaneSense commenters also
requested that the provision of the proposal permitting release of
records in the database in situations consistent with the safety
responsibilities of the FAA not be used without prior reason to do so
arising out of facts and circumstances occurring external to the
database. Commenters said this section is overbroad and would permit
the FAA to ``go fishing'' for enforcement information that might not
otherwise have been identified by the FAA in the normal course of
business. Commenters also opined that 24-hour access to data uploaded
by those obligated to do so is an unwelcome intrusion on both the
pilots' and the reporting employers' privacy.
Another commenter recommended the PRD have an Oversight Board to
monitor the database, to request data from FAA, and to conduct
investigations into aviation safety issues and training. The commenter
said that the PRD would fit well under the Aviation Safety Information
Analysis and Sharing umbrella and recommended that the FAA look at this
program.
A4A suggested that the FAA includes an additional exception to PRD
data disclosure under FOIA that permits PRD data disclosure only to the
extent permitted by the Privacy Act, including routine uses described
in the System of Records Notice for DOT/FAA, Aviation Records on
Individuals. A4A commented that the FAA should provide the public with
an opportunity to discuss what disclosures, permitted by the Privacy
Act, it shall include for purposes of the PRD Act.
b. FAA Response
The FAA does not adopt the proposal to include the statutory
disclosure
[[Page 31024]]
prohibitions in regulatory text because the statutory protections exist
regardless of inclusion in this regulation. The FAA will process all
FOIA requests in accordance with 5 U.S.C. 552 and current Agency
procedure for such requests, claiming FOIA exemptions associated with
the statutory protections listed in 49 U.S.C. 44703(i)(9)(B), where
applicable.
Regarding comments on records contained in the PRD that would be
subject to potential disclosure if the information is used as part of a
criminal investigation or prosecution, the PRD Act specifically
excludes information used to carry out a criminal investigation or
prosecution from the information protection described in 49 U.S.C.
44703(i)(9)(B). The PRD Act does not narrow that exclusion to apply
only to information provided in response to a duly-issued court order
or subpoena. The FAA will handle requests for such information in
accordance with established practices for provision of information used
to carry out a criminal investigation or prosecution. As allowed by the
PRD Act, the FAA may also use de-identified, summarized information to
explain the need for changes in policies and regulations. Statistical
information derived from such de-identified information may become
available to the public in the future. A commenter requested
clarification regarding the FAA's meaning of ``de-identified.'' The
term ``de-identified'' has a similar definition to the definition the
commenter mentioned from part 193.\41\ The FAA would also remove the
pilot's certificate number so that there would be no way to discern the
pilot's identifying information. The FAA does not retrieve pilots'
records from the PRD for FAA enforcement or investigative purposes
related to the pilots themselves.
---------------------------------------------------------------------------
\41\ In 14 CFR part 193, ``de-identified'' means that the
identity of the source of the information, and the names of persons
have been removed from the information.
---------------------------------------------------------------------------
The PRD Act, at 49 U.S.C. 44703(k), does not preclude the
availability of a pilot's information to the NTSB in accordance with an
investigation. The FAA would make records available to the NTSB in
accordance with established procedures for provision of such
information. Lastly, the FAA declines to establish an Oversight Board
for the PRD, as doing so by regulation is beyond the scope of the
proposed rule.
The FAA will publish an updated Privacy Impact Assessment (PIA) for
the PRD system, which will be available at <a href="http://dot.gov/privacy">dot.gov/privacy</a> and in the
public docket for this rulemaking.
B. Subpart B--Access to and Evaluation of Records
1. Applicability--Section 111.100
In the NPRM, the FAA proposed that part 119 certificate holders,
fractional ownership programs, and operators conducting air tour
operations would be required to access the PRD to evaluate a pilot's
records. The FAA adopts Sec. 111.100 substantively as proposed. The
applicability of this subpart remains unchanged from the NPRM. The FAA
made edits to maximize regulatory clarity and to capture corresponding
changes from other sections of part 111, as well as to consolidate
duplicative requirements, and to add compliance dates for subpart B to
this section.
i. Comments Received
The NTSB expressed support for the proposal to extend the
evaluation requirements to non-air carrier entities, including
corporate flight departments and air tour operators conducting
operations in accordance with Sec. 91.147. The NTSB noted that the
FAA, in response to Safety Recommendation A-05-01, proposed to require
all applicable operators to access and evaluate a pilot's records in
the PRD before making a hiring decision. The NTSB stated if the final
rule is consistent with the NPRM, it believes the final rule would meet
the intent of Safety Recommendation A-05-01. A4A stated it believes the
PRD information will be used earlier in the hiring process before a
conditional offer of employment is made to the pilot. One individual
commented that use of the PRD will lead to a safer transportation
system and that the system should not rely on pilot record books.
Other commenters suggested the PRD would not be helpful in the
hiring process because operators and owners already are incentivized to
make informed hiring decisions based on a rigorous interviewing and
screening process, regardless of regulatory requirements, given the
significant liability associated with those decisions. Commenters also
felt the PRD would not be beneficial for part 91 operators, opposed
requiring any part 91 operators to review records, and indicated part
91 operators communicate directly with other flight departments as part
of the applicant screening process. An individual commenter noted some
operators do not have fulltime pilots and often need crew at the last
minute, and asserted accessing and evaluating PRD records on short
notice would be impossible. Overall, some commenters generally
contended operators would not use the database.
ii. FAA Response
The FAA agrees that all entities subject to this rule have an
inherent incentive to make informed hiring decisions when hiring
pilots. The FAA reiterates that the PRD is not intended to be the only
source of information used by a subject employer when hiring a pilot.
Neither does this rule tell a prospective employer what hiring decision
to make on a pilot's job application after viewing pertinent
information in the PRD. Rather, consistent with the PRD Act and the
FAA's safety mission, this rule will ensure that critical information
regarding a pilot's record does not go unnoticed or unshared. Regarding
the comments about pre-existing coordination between flight
departments, the FAA notes that corporate flight departments as set
forth in the applicability of this section are not required to review
records under part 111, but may opt into the database voluntarily for
record review.
In response to the commenter who was concerned about a lack of time
to review a pilot's record's on short notice, the FAA reiterates that a
primary advantage of the PRD is the availability of records for hiring
employers in an electronic database that is easily accessible.
The FAA adopts revised compliance timelines for subpart B in this
section. Under Sec. 111.15, all operators required to comply with
subpart B will have a responsible person established in the database
beginning no later than 90 days after the date of publication of the
final rule, so the review of FAA records in the PRD is the next logical
step toward facilitating full compliance with part 111. Some operators
are already using the PRD optionally to review FAA records. The FAA
acknowledges that the NTSB as well as members of Congress and the
Families of Continental Flight 3407 are invested in the quick
implementation of the PRD. The FAA finds that interim compliance helps
quicken implementation and facilitates the successful long-term
transition from PRIA to PRD. Entities utilizing and load-testing the
PRD will help grow its capabilities for upload of industry records.
Compliance with review of industry records begins one year after the
date of publication of the final rule and the proposed date by which
operators must comply with all of part 111 is extended one year from
the proposal to three years and 90 days after
[[Page 31025]]
the date of publication of the final rule, as discussed in Section
V.A.2.
In the NPRM, the FAA proposed to allow corporate flight departments
and PAO the discretion to choose to review certain records in
accordance with subpart B. Regardless of this choice, the proposed rule
would have required all such operators to comply with all the reporting
requirements of subpart C. For those operators, the FAA adds a
provision to require those operators to comply with Sec. 111.120
(requiring receipt of pilot consent), to ensure compliance with those
protections. Corporate flight departments and PAO choosing to access
the PRD for record review must comply with certain requirements
regarding pilot consent, but are not required to comply fully with
other provisions in subpart B.
2. Evaluation of Pilot Records and Limitations on Use--Section 111.105
In the NPRM, the FAA proposed to prohibit operators subject to this
part from permitting an individual to begin service as a pilot prior to
reviewing that pilot's records in the PRD. The records proposed to be
reviewed included FAA records, records populated from current and
former employers reporting records in accordance with subpart C,
historical records, and NDR records. The FAA also proposed prohibiting
misuse of the database, including reviewing records without pilot
consent, permitting someone to access the database without proper
authorization, and using pilot information for any purpose other than
determining whether to hire a particular pilot.
i. Comments Received
CAPA indicated that the FAA stated this proposal does not contain a
requirement for a substantial increase in records kept by the carrier;
however, CAPA noted the PRD Act and the NPRM require evaluation of
records. CAPA expressed concern about safeguards to ensure the carrier
performs this evaluation with a set of standard metrics. CAPA
recommended the FAA require pilots' labor organizations, airline
management, and the FAA to perform the evaluation jointly, as has been
done in other successful collaborations, such as ASAP.
Ameristar sought clarification regarding who is responsible for
evaluating a pilot's records. Ameristar also recommended that the FAA
modify proposed Sec. 111.105(a)(3) to state the requirement
specifically rather than refer to 49 U.S.C. 44703(h). Ameristar also
commented that proposed Sec. 111.105(b) appears to duplicate proposed
Sec. 111.120.
A4A noted the PRIA records are available to the hiring committee
for review; however, it was not apparent to A4A if the hiring committee
will have access to the record. A4A urged the FAA to eliminate the
hiring language from the final rule and clarify there is no change in
carrier obligation to review records prior to an individual beginning
service as a pilot. CAA also commented that it is unclear how hiring
committees assigned to review the records and rank applications for the
future will be able to access the records and conduct reviews if only
one of three individuals on a committee has access to review records,
especially considering the proposed user fee charged to the operator
each time the record is accessed.
CAPA commented that the proposed rule indicates that the PRD is
only to be used for pilot hiring purposes, but the NPRM also mentions
``assisting air carriers in making informed hiring and personnel
management decisions.'' CAPA expressed concern about this contradiction
and recommended it be corrected.
A4A also noted the NPRM proposes to limit the use of PRD data to
permit using the data only for the purpose of determining whether to
hire a pilot. A4A argues that, while a safety benefit exists for having
current information for prospective pilots, the rule should also
contain a provision to allow for access to other information that would
be mutually beneficial to the individual pilot and the current
employer.
A4A further recommended the FAA clarify that an air carrier would
have the ability to limit access to specific types of pilot records
(training, drug and alcohol) with regard to what types of records
particular personnel of the air carrier are or able to access about a
particular pilot. A4A said the NPRM does not state explicitly that
authorized users with access to a pilot's records are limited with
regard to records they may be able to access about a particular pilot.
A4A recommended the FAA further limit access to confidential drug and
alcohol testing records in the PRD to air carrier-designated persons
that administer the drug and alcohol testing program.
ii. FAA Response
The FAA will not standardize review criteria or metrics for review
of pilot records, because every employer's hiring practices are
different. The PRD is simply a means of providing pilot information for
hiring decisions.
The FAA is limited by statute from permitting the use of the PRD
for any purpose other than an employer's review of a pilot's records
for hiring decisions. In citing the PRD's usefulness for personnel
management decisions, the FAA meant that having pertinent information
before allowing an individual to begin service as a pilot can aid
operators in overall personnel management. As such, the FAA will not
allow access to the PRD for other purposes.
Review of a pilot's record, as set forth in Sec. 111.10, must
occur before the pilot begins service as a pilot. This clarification is
discussed further in Section V.A.3.
The PRD Act does not provide discretion to allow access to the PRD
for record review to anyone except a person from a reviewing entity who
evaluates those records prior to permitting an individual to begin
service as a pilot crewmember. Whoever the responsible person delegates
to access the PRD will be able to evaluate those records for the
limited purpose of reviewing information relevant to hiring decisions.
This rule addresses consent and privacy concerns, especially
regarding sensitive pilot records, by providing safeguards in part 111.
Further, the FAA takes seriously its fulfillment of all confidentiality
requirements pertaining to the release of a pilot's drug and alcohol
information, in accordance with 49 CFR part 40.
The FAA amends Sec. 111.105 to make corresponding changes to
subpart B to accommodate the new alternate method of reporting records
permitted by Sec. 111.215 for certain operators. The FAA also removes
the prohibition on reviewing records without pilot consent, as it was
duplicative of Sec. 111.120.
Changes to Sec. 111.105(a)(1) and (2) split review of FAA records
from industry records to facilitate use of the PRD to review all FAA
records beginning 180 days from the date of publication of the final
rule. Industry is already required to review these FAA records under
PRIA, so this change only affects the vehicle by which they access
these records.
Section 111.105(a)(4) also includes a new provision associated with
Sec. 111.215, which enables a new method of reporting for certain
operators. Section 111.105(a)(4) requires persons reviewing records in
accordance with subpart B to compare the records in the pilot's PAR to
the list of employers provided with the pilot's consent form (See
Section V.D.3.). If an employer has not uploaded records relating to
that pilot but the employer appears as a former employer on the list
provided by the pilot, the PRD will generate a request for the
reviewing entity that goes directly to the reporting entity, by
[[Page 31026]]
notifying the responsible person identified on the application in Sec.
111.15. As described further in Section V.C.4., the reviewing entity
will receive a notification once any relevant records have been
reported, or notification that no applicable additional records are
available to report.
This proposed rule adopts the remainder of Sec. 111.105, as
proposed.
3. Motor Vehicle Driving Record Request--Section 111.110
In Sec. 111.110, the FAA proposed that all operators subject to
part 111, with exceptions, must query the National Driver Register
(NDR) prior to permitting an individual to begin service as a pilot, to
obtain and review State records on the motor vehicle driving history of
the pilot. The FAA proposed that entities querying the NDR would have
to keep substantiating documentation for five years to ensure that the
FAA would be able to audit, if necessary, the completion of this
search.
i. Comments Received
A4A supported that the FAA did not require motor vehicle driving
record information to be entered in the PRD, stating that this approach
reduced opportunity for the PRD to include inaccurate or incomplete
pilot information. A4A also stated this policy is consistent with the
ARC recommendation regarding NDR data. Ameristar recommended that the
FAA revise Sec. 111.110(a)(3)(i) by replacing ``49 U.S.C. 30301'' with
``a state participating in the NDR Program,'' explaining that without
this change, operators have to reference the statute.
ii. FAA Response
Section 111.110 is adopted substantively as proposed, with minor
revisions. The FAA added a reference to Sec. 111.310 in paragraph
(a)(1) of Sec. 111.110, to note that operators required to review
records that do not hold a certificate under part 119 are not required
to query the NDR. PRIA specified that air carriers must review any NDR
records while evaluating the other pilot records. The FAA determined
that it would be appropriate not to extend the requirement to part 91
operations, consistent with the FAA's risk-based approach for
regulating entities that do not hold a part 119 certificate.
4. Good Faith Exception--Section 111.115
The FAA proposed to include relief from the record review
requirement for operators that made a good faith effort to obtain pilot
records from the PRD but were not able to do so, due to no fault of the
hiring employer. The FAA also proposed that it may notify a hiring
employer if it has knowledge that a pilot's records in the PRD might be
incomplete due to dissolution of an organization or other issues with a
prior employer.
i. Comments Received
NBAA recommended that the FAA should more clearly define ``good
faith'' in accordance with existing PRIA language in PRIA AC120-68G,
which uses the phrase ``documented attempt to obtain such
information.''
NBAA recommended the FAA extend the good faith exception to the
requirement in Sec. 111.115 to report historical information under
Sec. 111.205. NBAA explained many non-air carrier operators have not
maintained the records that would be subject to reporting under the
proposed rule. Of those non-air carrier operators that have maintained
records, NBAA indicated the records may not be in a format that allows
for reasonable reporting that is not unduly burdensome. NBAA expressed
concern that requiring operators to report records not maintained
beyond the five-year period required by PRIA will encourage operators
to manufacture records, diminishing the value of any accurate
historical information in the database.
Ameristar noted ``good faith'' effort in proposed Sec. Sec.
111.115(a)(1) and 111.410(a) is not defined and is subjective, and
recommended the FAA define it. Ameristar suggested a registered letter
sent to the last known place of business would constitute a good faith
effort and has been accepted by FAA inspectors in the past. Ameristar
also recommended that the FAA state some acceptable methods of
compliance in the rule to provide guidance to affected parties. As an
example, Ameristar stated certified mail return receipt requested or an
acknowledged email should be acceptable.
ii. FAA Response
Section 111.115 is adopted as proposed. The meaning of ``good
faith'' as used in part 111 comports with the current PRIA AC120-68G,
which reads:
If a pilot/applicant's former employer has not responded after
30 calendar-days, document your attempts to obtain the PRIA records
from them and contact the PRIA program manager to determine its
status (see paragraph 3.5.2). If the nonresponding employer is
bankrupt, out of business, or is a foreign entity, your documented
attempts to contact that employer fulfill your obligation under
PRIA.
For application to the PRD, the reviewing entity's following
activities would suffice to fulfill the reviewing entity's obligation
under the PRD: Query of the PRD, completion of the NDR check, review of
the pilot's employment history, submission of requests to any employers
listed on the pilot's employment history that have not indicated that
all records for that pilot are already in the PRD, and submission of
PRIA requests to all the employers listed on the pilot's employment
history either in the PRD or with FAA form 8060-11. When the reviewing
entity waits at least 30 calendar days to receive those records and
completes the PRD-related activities described above, the good faith
exception would be available to the reviewing entity.
Regarding the comment to extend the good faith exception to
historical record reporting, the FAA emphasizes that the good faith
exception in Sec. 111.115 is written to apply generally to persons
subject to this subpart who are evaluating any records pertaining to
the individual's previous employment as a pilot and therefore would be
available for any records regarding a pilot, historical or
contemporaneous.
5. Pilot Consent and Right of Review--Section 111.120
In Sec. 111.120, the FAA proposed to prohibit an operator
reviewing records from doing so prior to receiving consent from the
pilot whose records it is reviewing and proposed requiring the consent
be reported to the database. The FAA also proposed requiring the hiring
employer to provide the pilot with a copy of any records received from
the NDR upon request.
A4A asked the FAA to expand the pilot consent process beyond the
scope of just the PRD to enable receipt by an operator of a pilot
certificate or medical certificate upon renewal or change, to
facilitate compliance with Sec. 121.383. The FAA determined that use
of the PRD for this purpose is beyond the scope of the PRD Act with
respect to purposes for which information in the PRD may be used.\42\
Other comments regarding pilot privacy are discussed in Section IV.C.
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\42\ 49 U.S.C. 44703(i)(9)(A).
---------------------------------------------------------------------------
The FAA adopts Sec. 111.120 as proposed, with minor edits and one
substantive change. The FAA amends the regulatory text such that
accessing the PRD to check whether the pilot has granted consent for
that operator to view the pilot's records would not be a violation of
this regulation. The activity prohibited would be actual retrieval of
the records prior to receiving consent.
[[Page 31027]]
Although such retrieval will not be possible based on the technological
restrictions imposed on the PRD by the system itself, the regulation
also prohibits such retrieval in the absence of pilot consent.
6. FAA Records--Section 111.135
In the NPRM, the FAA proposed requiring operators to review FAA
records in the PRD. Specifically, the FAA proposed that hiring
employers must review: 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 49 U.S.C. or a
regulation prescribed or order issued under that title; records related
to an individual acting as pilot in command or second in command during
an aviation accident or incident; records related to an individual's
pre-employment drug and alcohol testing history; and drug and alcohol
records reported to the FAA by employers regulated under other
Department of Transportation regulations for whom that individual
worked as a pilot.
i. Comments on the FAA's Expunction Policy
The FAA formerly maintained a long-standing policy to expunge
historical airman and enforcement records.\43\ The policy provided
that, generally, records of legal enforcement actions involving
suspension of an airman certificate or a civil penalty against an
individual were maintained by the FAA for five years before being
expunged. Records were not expunged if, at the time expunction was due,
one or more other legal enforcement actions were pending against the
same individual. The outcome of the most recent legal enforcement
action determined when the older action was expunged; for example, if a
pilot's certificate was suspended in May 2000, but received another
suspension in March 2005, both actions would be expunged in March 2010,
if no other enforcement actions were brought against the individual
through March 2010. Actions resulting in revocations were never
expunged.
---------------------------------------------------------------------------
\43\ The FAA adopted a policy to expunge records of certain
closed legal enforcement actions against individuals. This policy
applies to both airman certificate holders and other individuals,
such as passengers. FAA Enforcement Records; Expunction Policy. 56
FR 55788. (Oct. 29, 1991).
---------------------------------------------------------------------------
Following the enactment of the PRD Act, the FAA examined whether
the expunction of certain enforcement actions could continue in light
of the data collection, data retention, and FOIA protection
requirements of the PRD. Accordingly, FAA published a notice (76 FR
7893, February 11, 2011) temporarily suspending its expunction policy.
In the NPRM, the FAA proposed to maintain its current suspension of the
expunction policy. Under existing policy, the FAA expunges an
enforcement record in the Enforcement Information System (EIS), and
only the information identifying the subject of the enforcement action
is deleted (name, address, certificate number, etc.). The PRD Act,
however, obligates the FAA to ``maintain all records entered into the
[PRD] pertaining to an individual until the date of receipt of
notification that the individual is deceased.'' As FAA records are part
of the ``records entered into the [PRD] pertaining to an individual,''
the FAA interprets the PRD Act to require that a pilot's records cannot
be expunged until the FAA has received notice of an individual's death,
or until 99 years have passed since that pilot's date of birth.
NBAA stated that the FAA's expunction policy is consistent with the
Privacy Act and that the FAA must still meet the requirements of the
Privacy Act despite the PRD. NBAA further commented that by maintaining
information in the PRD while limiting access to qualified employers,
the FAA is still able to expunge other records and databases, such as
the EIS. The commenter said that closed legal enforcement actions are
neither relevant nor timely after a certain length of time. NBAA
endorsed the PRD ARC recommendation to reinstate the 5-year expunction
policy for enforcement actions for all pilot records and the
recommendation that if the FAA determines records should be maintained
indefinitely as a result of the PRD Act, the records maintained in the
PRD should be expunged from EIS and any other FAA recordkeeping systems
that contain them.
RAA supported the proposal to maintain the current suspension of
the expunction policy for all relevant EIS, CAIS, and AIDS records. The
commenter also pointed to concerns expressed by the PRD ARC and
asserted that the provisions of the PRD Act conflict with the Privacy
Act.
ii. Comments on Use of Aircraft Accident and Incident Data for the
Proposed Rule
CAPA expressed concern about the FAA's use of aircraft accident and
incident data and suggested that the FAA's use of this data exceeds the
scope of its mandate under the PRD Act. CAPA noted no current
regulation or accepted practice exists in which the difficulty a pilot
may have had in meeting a standard is considered in the pilot's ability
to perform duties once the pilot has met that standard. CAPA argued if
the objective is to identify pilots who are perceived to have ``failed
too often'' in their attempt to meet a standard, then the standard
should be the subject of additional review. CAPA also stated the
evaluation standards remain equal for all applicants regardless of the
training necessary to successfully complete an evaluation.
iii. FAA Response
The FAA adopts the provision as proposed in the NPRM with respect
to the FAA's maintenance of its records in the PRD for the life of the
pilot. Accordingly, the FAA is amending the records schedules for EIS
records and AIDS records for this final rule. As discussed in the NPRM,
the PRD Act requires pilot records to be kept ``for the life of the
pilot.'' Because a hiring employer could view a pilot's records
indefinitely in the PRD, no harm results from maintaining suspension of
the expunction policy with respect to records in EIS.
The FAA records within the PRD are considered copies of records
maintained in the CAIS, AIDS, and EIS databases. These databases are
subject to the U.S. Department of Transportation's system of records
notice (SORN) entitled DOT/FAA 847, Aviation Records on Individuals
(November 9, 2010, 75 FR 68849) and are made available to reviewing
entities consistent with the consent provided by the pilot.
Records integrated within the individual PARs, and records that
operators provide for inclusion within the PRD, are not considered to
be part of an FAA system as those records, when connected to a pilot
with identifying information, are not used by the Department in support
of its mission. The FAA's retrieval of these records by unique
identifier may only occur for administrative purposes. Rarely, the FAA
may retrieve records from the system by unique identifier to respond to
external criminal law investigation requests, or as part of an FAA
investigation of the operator's compliance with PRD regulations. The
[[Page 31028]]
FAA does not retrieve pilots' records from the PRD for FAA enforcement
or investigative purposes related to the pilots themselves.
However, the Department is committed to ensuring that these
sensitive records are managed in a manner consistent with the Privacy
Act and the Fair Information Practice Principles, and will protect the
records in accordance with the Departmental Privacy Risk Management
Policy, DOT Order 1351.18 and applicable Office of Management and
Budget Guidance for the protection of personally identifiable
information.
The FAA also adopts the requirement for review of records related
to an aviation accident or incident as proposed. The FAA explained in
the NPRM that including accident and incident data in the PRD would
provide a more holistic historical record of a pilot, when combined
with the other records proposed to be reported to the PRD by operators
that previously employed the pilot. The FAA has the authority to
identify, gather, and share that data, and has determined that doing so
in the PRD is consistent with the PRD Act.
The FAA enters a pilot's pre-employment and non-FAA drug and
alcohol history into the PRD; however, these are not FAA records.
Instead, the respective employer that conducted the test or determined
the violation occurred is responsible for the records.
The FAA adopts Sec. 111.135 with no substantive changes, but with
minor edits, for clarity.
7. Sections Not Adopted
i. Refusal To Hire and Release From Liability
In accordance with the statutory requirement set forth in 49 U.S.C.
44703(i), the FAA proposed permitting hiring employers to require a
pilot to execute a release from liability for any claim arising from
use of the PRD in accordance with the regulations. The FAA also noted
that the release from liability would not apply to any improper use of
the PRD, as described in the proposed regulation. The FAA also proposed
to permit an air carrier or operator to refuse to hire a pilot if the
pilot does not provide consent to the operator to evaluate the pilot's
records or if the pilot does not execute a release from liability for
any claims arising from proper use of the PRD by the operator. The
proposed regulatory text also prohibited a pilot from bringing any
action or proceeding against a hiring employer for a refusal to hire
the pilot for any reason described in this section.
ii. Comments Received
A4A commented that the liability release provision proposed in the
NPRM in Sec. 111.125 reflects the current and appropriate
requirements, by providing a release from liability except where
information is known to be false and maintained in violation of a
criminal statute. Additionally, A4A contended the proposal provides
reasonable protections, which the PRD Act does not require, for refusal
to hire a pilot that does not provide consent or liability release
requested by a carrier. A4A suggested that the FAA clarify that
carriers can determine the process by which a release is obtained from
the pilot and not foreclose future options.
NBAA commented that release from liability provisions apply only
with respect to the entry of covered data and covered entities; in this
regard, air carriers are not given immunity if they overreach by
entering data that goes beyond the statute. NBAA recommended the FAA
align the proposed regulation with existing laws and include additional
provisions to protect employers required to submit records to the
database. NBAA also expressed concern that part 111 improperly
regulates the employer-employee relationship and could be inconsistent
with State employment laws.
iii. FAA Response
The FAA does not have the authority to expand the release beyond
what is described explicitly by statute. Only Congress can establish
statutory liability release provisions. Furthermore, Congress required
the FAA to establish the PRD. The FAA is not aware of State law that
would affect FAA regulation of a Federal database for pilot records.
Further, as discussed in the NPRM, the FAA recognizes that 49 CFR
40.27 prohibits employers from having their employees execute any
release ``with respect to any part of the drug or alcohol testing
process.'' However, the FAA considers drug and alcohol testing records
stored in the PRD to be outside the testing process for the purpose of
DOT enforcement. Therefore, drug and alcohol testing records stored in
and supplied by the PRD are not excluded from the liability release set
forth in the statute.
The FAA does not adopt the proposed provisions. Upon further
review, the FAA determined that memorializing these statutory
requirements in regulation is unnecessary. Title 49 U.S.C. 44703(j)
refers to ``written consent''.\44\ The FAA considers the consent
requirements of Sec. Sec. 111.120 and 111.310 to constitute the
consent that section 44703(j) intends. A court could cite this statute
in determining that a litigant does not have standing to bring a claim,
but codifying a regulation to further memorialize the provision is not
necessary.
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\44\ Specifically, 49 U.S.C. 44703(j)(4)(A) states that an ''
air carrier may refuse to hire an individual as a pilot if the
individual did not provide written consent for the air carrier to
receive records under subsection (h)(2)(A) or (i)(3)(A) or did not
execute the release from liability requested under subsection
(h)(2)(B) or (i)(3)(B).''
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C. Subpart C--Reporting of Records by Operators
1. Applicability--Section 111.200
In the NPRM, the FAA proposed that certain operators would be
required to report records to the PRD, in accordance with the statute.
The FAA adopts this section substantively as proposed, with edits for
consistency with other parts of the regulatory text throughout this
section and with additional text.
In this section, the FAA adds compliance dates for when reporting
of records to the PRD begins. The FAA expects to be able to accept
industry records beginning June 10, 2022. As such, operators currently
engaging in operations, or that initiate operations prior to June 10,
2022, must begin reporting new records described by Sec. 111.205(b)(1)
on June 10, 2022. Operators initiating operations after that date must
begin complying with the PRD within 30 days of receiving their
operations specifications. Historical record reporting falls on a
different timeline and the FAA states in this section that the schedule
for historical record reporting is set forth in Sec. 111.255. Comments
regarding the compliance timeline for reporting historical records are
found in Section V.E.
2. Reporting Requirements--Section 111.205
In Sec. 111.205, the FAA proposed general requirements for
compliance with subpart C. The proposal required operators subject to
part 111 to report new records about a pilot it employs as well as
historical records about a pilot currently or previously employed.
Proposed Sec. 111.205 would prohibit inclusion of the information not
permitted to be entered into the PRD as described in Sec. 111.245.
The FAA amends the proposal concerning Sec. 111.205 to add the PRD
date of hire to the list of information that an operator is required to
enter about a pilot. Otherwise, this section is adopted substantively
as proposed.
[[Page 31029]]
Comments relating to the applicability of the reporting requirements of
part 111 are discussed primarily in Section IV.B.
3. Format for Reporting Information--Section 111.210
In the NPRM, the FAA proposed that operators would have to report
information to the PRD in a form and manner prescribed by the
Administrator.
i. Comments Received
A4A took issue with the fact that the proposed rule creates a
database of pilot record summaries, not of pilot records. A4A said
summaries are contrary to the PRD statute, which requires an electronic
database for records ``that are maintained by the air carrier.'' A4A
added that this is an arbitrary and capricious reversal of the FAA's
own interpretation of what constitutes a ``record'' and substantially
increases the costs of the proposed regulation while reducing the
quality and quantity of information available in the PRD as compared to
the PRIA record exchange program. A4A was especially concerned about
the proposed requirement to input summaries of historical records,
rather than scans of the records themselves. A4A stated that the FAA
should provide the option to upload images of entire documents rather
than relying on summaries.
A4A contends that the PRD does not provide potential employers with
the level of comprehensive information Congress intended and that PRIA
provides currently. A4A noted that under PRIA, a hiring carrier would
receive the pilot's record and could review any incidents demonstrating
that a pilot has difficulty with crew resource management, even if the
final disciplinary action is removed from the record via settlement.
Under the proposed rule, however, that information would not be
captured in the PRD because if a settlement overturns a disciplinary
action, the entire record related to that action would be excluded from
the PRD. Moreover, A4A noted, once PRIA sunsets, those records will be
permanently inaccessible to potential employers.
A4A noted the NPRM provides no technical information on how an
employer must report extensive pilot records into the PRD; therefore,
the public cannot provide precise information on the potential impact
of this regulation without having the technical requirements to report
information into the PRD. A4A recommended that the FAA consider
offering both XML and JSON formats as standards for bulk data transfer
and engage carrier technical representatives. A4A further recommended
that the FAA provide carrier representatives with information on the
lessons learned by the Federal Motor Carrier Safety Administration in
the Commercial Driver's License Drug and Alcohol Clearinghouse. RAA
requested that a guide to XML be provided to PRD users at the close of
the comment period, or at the earliest possible time. A4A also asked
for technical clarification on how bulk records should be uploaded to
the PRD.
Ameristar and Atlas Air also expressed concerns about the format
for uploading records, stating that it would affect the timing and cost
of compliance. Ameristar notes that the definition of ``report to the
PRD'' is open-ended.
The National Air Transportation Association (NATA) recommended that
the FAA extend the historical period for data transmission and allow
the uploading of original documents. NATA stated that only 12% of
carriers are using electronic pilot records, and the significant
majority of recordkeeping systems do not have the ability to create an
XML program to sweep up the data fields for transmission. NATA stated
that it expects a large number of part 135 carriers to use manual
entry, and that rushing could cause unnecessary errors that would be
difficult to correct and only discovered in pilot disputes.
Ameristar stated the PRD should allow text submissions of
historical records, noting the wide availability of the ASCII format.
The commenter also recommended all historical records be allowed in the
format in which the carrier maintained those records.
In the NPRM, the FAA requested comments on five questions related
to the input of historical records.\45\ RAA commented that it is
difficult to answer Question 3 until an example of the proposed XML
data transfer format is available for testing. Also responding to
Question 3, CAPA stated there should be an opportunity for the public
to make additional comments if the FAA chooses to collect any type of
historical record not previously mentioned.
---------------------------------------------------------------------------
\45\ 85 FR 17678 (March 30, 2020). The questions included:
1. What level of detail (e.g., training completion dates or the
pilot's entire training record including each activity/task and
outcome) do operators keep for historical pilot records dating back
to August 1, 2005 and how accurately do the data requirements
outlined in Table 3 reflect that level of detail?
2. Are air carriers or operators maintaining other relevant
records used by an air carrier or operator in making a hiring
decision that the FAA has not considered or not chosen to include as
a historic data requirement in this proposal?
3. What amount of effort do employers perceive will be involved
in reviewing the historic data and structuring it into an XML
format? The FAA would also welcome information from any employers
that do not intend to use the back-end XML solution?
4. How quickly do air carriers and other operators believe they
will be able to migrate their PRIA records into the PRD?
5. Would it be helpful from either a pilot or a hiring
employer's perspective to include a text box (with a limited
character count) for a pilot to be able to provide a narrative
explanation of further information concerning a historical record?
Would this also be helpful for present-day records?
---------------------------------------------------------------------------
In response to Question 5, RAA stated that a text box could be
useful in providing narrative explanations for historical records, but
risks providing unneeded information to the receiving carrier. RAA
suggested that the FAA could limit this through a drop-down menu. Also
responding to Question 5, CAPA stated that this question is confusing
because under the NPRM a pilot would already have an opportunity to
correct inaccurate data. CAPA further stated that the FAA should
clarify its intention, and also asked whether there would be one data
package to correct the entire package, one per section, or some other
arrangement.
The Families of Continental Flight 3407 emphasized that the
database will only be as effective as the quality of the data entered
into it and that there will need to be a continuous quality control
process in place as the database is put into operation. These
commenters called on the FAA and all stakeholders to make their best
possible effort in this regard.
A4A also said the final rule should clarify the requirement for
most records to be reported ``within 30 days'' of the event, and that
the rule does not prohibit submission of information after 30 days.
ii. FAA Response
Section 111.210 is adopted as proposed. The FAA provides a
description of an initial means of compliance for the format for
reporting information in AC 20-68J accompanying this rule.
The NPRM proposed that operators summarize the information from a
pilot's record, rather than submitting the actual records to the PRD.
Table 3 of the NPRM outlined the data elements necessary to include in
the summary. The FAA acknowledged that many operators have maintained
records in accordance with PRIA in varying degrees of detail, so the
FAA's intent with requiring submission of a summary rather than an
original record was to create a standardized process and best practice
for obtaining the relevant information. Further, the NPRM stated that
clearly defining the specific data
[[Page 31030]]
elements in this proposed rule would enable reporting entities to
refine the information included in the PRD that hiring operators find
most useful for hiring decisions, rather than entering all data
maintained on an individual pilot throughout his or her career. Lastly,
requiring records to be entered in a standardized format is consistent
with NTSB Recommendations A-10-17 and A-10-19.
The FAA confirms in this action that the summary approach would be
used for current, future, and historical records. The FAA reaffirms the
NPRM discussion on the data elements and information required for the
summaries which emphasized that the summary approach was taken
specifically to improve the quality of the information submitted to the
PRD. The FAA notes, with respect to A4A's comment regarding
subsequently overturned disciplinary actions, that the PRD Act and PRIA
share identical language with respect to excluding disciplinary actions
that were subsequently overturned.
While the PRD Act requires that air carriers and certain other
persons report information ``to the Administrator promptly for entry
into the database'' with regard to any individual used as a pilot in
their operations, the PRD Act leaves the FAA discretion to determine
the means by which the information is to be reported to the FAA for
inclusion in the PRD. The FAA further acknowledged in the NPRM that
requiring summaries rather than records differed from the current
process under PRIA, stating that unlike the current process under PRIA,
the proposed requirements ensure the standardized collection of and
access to safety data regarding disciplinary actions by clearly
defining the type of event, the type of disciplinary action, timeframes
for data entry, and specific data that must be reported to the PRD for
evaluation by a future employer. As discussed in the NPRM, the FAA's
role concerning PRIA and PRD are vastly different. The provisions of
PRIA were self-implementing and the FAA's role in the PRIA process
limited. The FAA did not develop implementing regulations for PRIA. The
PRIA process generally involved only three parties for industry
records: The potential employer, the past employer, and the pilot-
applicant. In contrast, the PRD Act requires the Administrator to
promulgate regulations to establish an electronic pilot records
database containing records from the FAA and records maintained by air
carriers and other operators that employ pilots.
Limiting the data elements available to hiring employers is
critical because the PRD requires the FAA to ensure pilot privacy is
protected. Because the Administrator cannot effectively review for
quality control every record that an operator may upload to the PRD,
the FAA proposed requiring standardized formats for such records. By
using such formats, the PRD will ensure that specific data points are
validated at the time of record upload. Accordingly, the FAA has used
its discretion to determine that, specific to the PRD and its broad
coverage of records and mandate to protect pilot privacy, a summary of
that information rather than wholesale submission of the underlying
records provides the most efficient, standardized, and succinct vehicle
to meet Congressional intent concerning the information reported to the
PRD and the privacy protections the FAA must afford pilots. Therefore,
the FAA disagrees with the commenters who indicated the PRD should
contain images or scans of the original records.
The FAA will make available two primary methods for entering
records into the PRD: Manual entry and an electronic record upload. The
manual method will be accessed via the PRD website. The reporting
entity will be presented with a form to complete after selecting the
pilot and what type of record is to be entered. The second method of
loading records will be via an electronic transfer using a data format
such as XML. The FAA originally considered allowing a large text block
to be uploaded for historical records in the interest of expediting
data upload. However, after additional consideration, such a block
would make the record far less useful to a reviewing entity. If the
information cannot be properly categorized, identified, and read by a
person to understand the salient facts of the record, there is
diminished value for providing the record to the PRD. A reporting
entity may use either or both methods, as long as the entity does not
load the same record via both methods.
The manual method will be available for use when the requirement to
enter records becomes effective. This will allow reporting entities to
begin entering records pursuant to the schedule described in the
regulation. Shortly after the final rule is published, the FAA will
begin finalizing the electronic record reporting format and keep
industry informed of those efforts. The FAA expects to develop a format
that will accommodate the most efficient industry adoption. As the PRD
system matures and recordkeeping systems advance, electronic transfer
may become the primary method of loading records into the PRD for many
reporting entities. Detailed instructions for using both methods will
be described in AC 120-68J and other PRD user guides.
The FAA confirms that while reporting records beyond the 30-day
timeline may be possible technically, doing so is inconsistent with the
regulatory requirement to report records within 30 days when reporting
in accordance with Sec. 111.215(a).
The FAA removed the proposed regulatory definition of ``report to
the PRD'' because the requirement is inherent in the regulation itself.
By following the requirements of part 111, the operator is reporting to
the PRD.
4. Method of Reporting--Section 111.215
In the NPRM, the FAA proposed that all records would be uploaded
within 30 days of record creation. As mentioned previously in Section
IV.C, this rule adds a method of reporting records under subpart B for
certain operators. New Sec. 111.215 now offers the option for some
operators to report certain pilot records to the database upon request
from a hiring operator. The FAA considered comments regarding the
number of pilots who will transition from corporate flight departments,
air tour operations, or PAO (``PAC operators'') to employment with a
reviewing entity, and determined that many pilots will not make that
transition or not change employers during the course of their careers.
The FAA recognizes that many pilots view employment with the PAC
operators as a career destination, not a gateway to service with a
reviewing entity.
PAC operators may upload records for pilots they employ upon
request instead of reporting all records automatically. The request
mechanism will be built into the PRD as an automatic function. This
upload-upon-request framework is subject to three exceptions. First,
reporting upon request is not applicable for air tour operators' drug
and alcohol records subject to 14 CFR part 120. Those records are
subject to the reporting timeline for that section and must be reported
contemporaneous with the receipt of each such record. Second, PAC
operators must report separation from employment records which reflect
termination of the pilot's employment, either due to pilot performance
or due to professional disqualification, to the database within 30 days
of record creation. Third, PAC operators must report disciplinary
action records to the database where the outcome is a suspension from
piloting an aircraft for any amount of time.
The FAA understands that different employers have different
disciplinary
[[Page 31031]]
programs and the same action may be referred to with different
terminology. The threshold consideration for determining whether an
operator must report a disciplinary action record upon creation of the
record is whether the pilot was no longer permitted for any period of
time to pilot an aircraft during flight operations. The FAA considers
such separation from employment and disciplinary actions as among the
most significant events for a reviewing entity to consider when
determining whether to employ a pilot. Therefore, the burden imposed by
requiring PAC operators to report a certain record upon receipt or
creation of the record will ensure reviewing entities have the most
important records regardless of whether a pilot, in violation of the
regulation, omits operators from his or her list of previous employers.
Aside from the three exceptions discussed, this rule requires the
reporting of any remaining records held by a PAC operator only upon
request from a hiring employer. To ensure no gap exists in pilot
employment history, the FAA revises Sec. 111.310 to require pilots to
update their employment history dating back five years at the time of
granting consent to the operator. Under Sec. 111.105, the hiring
employer must compare this history against the available records; if
the database indicates that further records are available, the hiring
operator will be able to generate a request through the PRD to the
prior or current employer for upload. If a request is sent to a pilot's
former employer and that former employer has no further records about
an individual pilot, the former employer should report that no further
records are available. The FAA envisions that even if no other records
exist for an individual pilot (because the operator did not keep any
training records, as discussed in Section V.C or because the pilot was
not ever subject to disciplina
[…truncated; see source link]Indexed from Federal Register on June 10, 2021.
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