Continental Airlines and Airline Safety and Federal Aviation Administration Extension Act of 2010
Pilot Records Database NPRM reaches Part 91
Opponents argue that proposal exceeds Act’s intent
The tragic crash of Continental 3407 created an impetus for a number of legislative mandates for aviation safety. The mandate of Section 203 of the Airline Safety and Federal Aviation Administration Extension Act of 2010 (the “ Act”) is finally being promulgated as a NPRM. A set of the proposed regulations would create a Pilots Records Database which would
- (a) create a central database for the collection of all records relevant to a pilot’s performance and qualifications;
- (b) expand the types of records to be reported to include training and currency records, as well as any records that may reflect negatively on a pilot’s flying ability; and
- (c) expand the requirement to submit these records to “Corporate Flight Departments.”
As with many statutory solutions derived from the horrible facts of a crash, some of the requirements of the 2010 are well intended and likely impractical to implement. Much of the statutory record requirements is intended to increase the information readily available to future employees about prospective pilot hires. The information kept by aviation company about their cockpit crews was inconsistent as to details, incomplete as to what was retained and not necessarily compatible to sharing with the FAA and/or the prospective employers. Thus, the terms of §203 as being established in the PRD NPRM are subject to public comments. It is intuitive to have a more complete, accurate transcript of a potential member of an aircraft cockpit.
The FAA frequently uses a regulatory construct, an Aviation Rulemaking Committee, here the PRD ARC, to develop consensus on practical implementation. This advisory group, which included FAA representatives, worked diligently and produced a cogent 144 page set of comments and actual suggested text in 2011.
The 61-page notice in the Federal Register on March 30, 2020 has drawn considerable criticism from many stakeholders, but particularly vehement in opposition are the comments of the business aviation sector.
Representative Higgins (D-NY), one of the original sponsors of the Act, was pleased that the PRD NPRM FINALLY, REPEAT FINALLY was issued. The Families of Continental Flight 3407 were equally positive about the FAA action and actually complimented the career staff for their diligence. The docket includes many poignant individual submissions by those affected by the crash.
The Airlines for America, that represents the carriers upon which much of the paperwork burden would fall, premised its comments with:
We support creating a Pilot Records Database (“PRD”) as envisioned by Congress in the Pilot Records Database Act (“PRD Act”). A properly designed and implemented PRD could provide prospective carriers with the future records of pilot candidates, in a more standardized format that can be accessed earlier in the pilot hiring process.
But, after 7 pages of comments, A4A urged the FAA
- Hold a meeting a with the aviation industry to clarify several areas of the proposal after the comment period closes.
- Adopt a final rule that does not include a requirement to report historical documents.
- Provide ample time to complete a pilot project with operators and certificate holders to explain the PRD technical standards.
- If historical documents are excluded from the final rule, provide at least one year after the final rule is published for carriers to upload documents.
- If historical documents are included, which they should not be, the agency should invest in the ability to upload images of entire records and not rely on summaries. Additionally, it should also provide two years for stakeholders to discuss and clarify PRD requirements and at least two years to upload data to the PRD.
After an extensive ARC report and nine years of rule writing, those points express considerable dissatisfaction.
The Airline Pilots Association, representing 63,000 pilots at 34 US and Canadian airlines, asked for a 120 day extension of the comment period. The union cited COVID-19 exigency for the delay, but really faces complex policy issues, especially the privacy of its members.
NBAA (36 pages), AOPA (7 pages) and NATA (5 pages) essentially demanded delay and submitted extensive, specific criticism. The gravamen of their complaint is that the Act was intended to capture records for candidates for airline positions. They did not acknowledge that general aviation and business aviation may be significant sources for Parts 121 and 135 careers. However, they vehemently object that the Congressional intent was to be universal as to all pilots. Further, they make the point that the PRD record-keeping requirements impose inordinate burdens on their members which do not the same administrative staffs as do the air carriers. NBAA summarizes its points here:
the current proposed rule exemplifies regulatory overreach, going far beyond the intent of the legislative mandate with no identifiable safety benefits for Part 91 operators. The NPRM lacks a robust analysis of the effects on Part 91 operations and ignores many consensus recommendations from the 2011 PRD ARC, resulting in a significant burden on numerous small entities with no clear nexus to Part 121 carrier hiring. Many of the shortcomings in the NPRM can be rectified by removing requirements for Part 91 operators to contribute information to the database.
The PRD legislation was highly politicized by the very active family groups and their Congresspeople. After nine years of considering the statutory mandates and the ARC recommendations, it is clear that the staff decided to cast the broadest net for PRD coverage and included the Part 91 community within the Part 111 scope.
Clearly, the NPRM’s authors were motivated to reach every pilot ready room in the country—an estimable goal, more = greater safety. There are consequences– unexpected? unknown? –which make the perfect vision unattainable. The clear statutory mandate was the direct pipeline to Part 121 pilots, but the FAA staff recognized that a more expansive approach would enhance the PRD’s value. The draft rule, among other things, appears to have ignored the Part 91 impact.
The rule writers must not be acquainted with on of the essential principles of drafting. Monsieur Voltaire decreed:
Perfect is the enemy of good
Limiting the expansiveness of the PRD’s application may not be perfect, but increasing the current universe of pilot information now will well enhance aviation safety.
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