AC 120-68B

Subject: PILOT RECORDS IMPROVEMENT ACT OF 1996,

AS AMENDED Date: 3/22/02 Initiated by: AFS-200/600 AC No: 120-68B Change:

1. PURPOSE. This advisory circular (AC) provides information and standard forms that may be used to comply with some of the provisions of Title 49 United States Code (49 U.S.C.)

§ 44703(h), Records of Employment of Pilot Applicants; § 44703(i), Limitation on Liability;

Preemption of State Law; and § 44703(j), Limitation on Statutory Construction. This law is commonly referred to as the Pilot Records Improvement Act of 1996 (PRIA) and is contained in Section 502 of Public Law 104-264. Public Law 104-264, Section 502, shall apply to any air carrier hiring an individual as a pilot whose application was first received by the carrier on or after the 120th day (February 6, 1997) following the date of the enactment (October 9, 1996) of PRIA.

Vertical bars in the margins identify revised, added, or deleted portions of the text.

2. CANCELLATION. Advisory Circular 120-68A, Pilot Records Improvement Act of 1996, As Amended, dated September 20, 2001, is canceled.

3. APPLICABILITY. The guidance provided herein applies to:

a. An air carrier hiring an individual as a pilot;

b. An air carrier, or other person, that has employed an individual as a pilot of a civil or public aircraft at any time during the 5-year period preceding the date of the individual’s employment application to an air carrier; and

c. Any individual applying for a position as a pilot with an air carrier who has been employed as a pilot of a civil or public aircraft at any time during the 5-year period preceding the date of the individual’s employment application to an air carrier.

4. RELATED UNITED STATES CODE AND CODE OF FEDERAL REGULATIONS.

a. Certain U.S. Transportation Laws in 49 U.S.C.

b. Title 14 of the Code of Federal Regulations (14 CFR) Parts 121, 125, and 135.

c. Title 49 of the Code of Federal Regulations (49 CFR).

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5. DEFINITIONS. The following definitions are provided to assist the reader in understanding the provisions of the PRIA.

a. Air Carrier (Reference: 49 U.S.C. § 40102(a)(2)). A citizen of the United States undertaking by any means, directly or indirectly, to provide air transportation.

b. Air Transportation (Reference: 49 U.S.C. § 40102(a)(5)). Foreign air transportation, interstate air transportation, or the transportation of mail by aircraft.

c. Interstate Air Transportation (Reference: 49 U.S.C. § 40102(a)(25)). The transportation of passengers or property by aircraft as a common carrier for compensation, or the transportation of mail by aircraft, between a place in: (i) a State, territory, or possession of the United States and a place in the District of Columbia or another State, territory, or possession of the United States; (ii) Hawaii and another place in Hawaii through the airspace over a place outside Hawaii; (iii) the District of Columbia and another place in the District of Columbia; or,

(iv) a territory or possession of the United States and another place in the same territory or possession; and, when any part of the transportation is by aircraft.

(1) Common Carriage. “Common carriage” is defined as “holding out” to the general public or to a segment of the public as being willing to furnish air transportation for compensation. Common carriage also includes the carriage of people or property for compensation in aircraft, even if such carriage does not involve the transportation of people or property from one place to another on the surface.

(2) Holding Out. “Holding out” can be accomplished in many ways, including advertising through the telephone yellow pages, billboards, television, and/or radio.

d. Person (Reference: 1 U.S.C. § 1, and 49 U.S.C. § 40102(a)(33)). A “person” includes corporations, companies, associations, firms, partnerships, societies, and joint stock companies, as well as individuals. It also includes a governmental authority, trustee, receiver, assignee, and other similar representative.

e. Record. As used in this advisory circular, “record” means the individual pilot’s records that are maintained by an air carrier or person to meet the statutory requirements of 49 U.S.C.

§ 44703(h), and the records that are maintained by an air carrier or person to meet the regulatory requirements of the 14 CFR operating rule under which the air carrier or person operates.

6. BACKGROUND. On October 9, 1996, the President approved the Federal Aviation Reauthorization Act of 1996 (the Act) that was passed by Congress on October 3, 1996, as Public Law No. 104-264. The Act amended 49 U.S.C. to reauthorize programs of the Federal Aviation Administration (FAA) and to effect certain changes including pilot records. The PRIA was enacted primarily as a result of certain airline accidents attributable to pilot error, where it was later found that, although the pilot(s) had a history of poor performance, the current employer had not

Par 6 Page 3 investigated the pilot’s background.1 The PRIA was amended by Public Law 105-142, effective December 5, 1997, by Public Law 106-181, effective April 5, 2000, to give relief to air carriers for unnecessary burdens that were not originally contemplated, and by Public Law 107-71, effective November 19, 2001, to establish the Transportation Security Administration as well as for other purposes. 49 U.S.C. § 44703(h), (i), and (j), as amended, are reprinted in Appendix 1.

7. EMPLOYMENT RECORDS OF PILOT APPLICANTS.

a. Records Requests. Before allowing a pilot to begin service, the PRIA requires an employing air carrier to request and receive certain information concerning that individual. That information must include certain records from: (1) the FAA; (2) other air carriers or persons; and

(3) the National Driver Register (see 49 U.S.C. § 44703(h)(1)).

(1) Who must request records? An “air carrier” as defined under 49 U.S.C.

§ 40102(a)(2). An air carrier is an entity that conducts foreign air transportation, interstate air transportation, or transports mail by aircraft. If an air carrier holds Operations Specifications that authorize foreign or interstate air transportation, or if the air carrier transports mail, such air carrier must comply with the PRIA.

(2) Who must provide records? Any air carrier or person, or a trustee in bankruptcy for an air carrier or person, that has employed the individual as a pilot of a civil or public aircraft at any time during the 5-year period preceding the date of the employment application.

NOTE: Entities that employ pilots and maintain pilot records but are not air carriers must provide the records identified by PRIA to the requesting air carrier within the time specified.

(3) What records must be provided?

(a) FAA Records (See 49 U.S.C. § 44703(h)(1)(A)):

1 Current airman certificates with associated type ratings and limitations;

2 Current airman medical certificate including any limitations; and 3 Summaries of FAA legal enforcement actions resulting in a finding by the Administrator of a violation that was not subsequently overturned.

(b) Air Carrier and Other Records (See 49 U.S.C. § 44703(h)(1)(B)). Records required to be provided include:

1 United States Congress, House of Representatives Committee Report - House Rpt. 104-684, H.R. 3536, Airline Pilot Hiring and Safety Act of 1996, p. 6. 1996.

Par 7Page 4 1 Records pertaining to the individual that are maintained by an air carrier (other than records relating to flight time, duty time, or rest time) under regulations set forth in:

(aa) Section 121.683 of 14 CFR Part 121;

Note: Appendices I and J of Part 121 were amended effective August 1, 2001. Due to these amendments, the records which are referenced in PRIA at 49 U.S.C. § 44703(h)(1)(B), [originally 49 U.S.C. § 44936(f)(1)(B)] no longer contain references to all of the records originally identified by Congress as subject to PRIA. Some of those record references were moved to 49 CFR, Part 40, Procedures for Transportation Workplace Drug and Alcohol Testing Programs, which also became effective August 1, 2001.

Paragraphs (bb) and (cc) below list the records that were referenced in former paragraph (A) of section VI, appendix I, Part 121 and paragraph (A), section IV, appendix J, Part 121.

(bb) Paragraph (A) of section VI, Appendix I, Part 121 -- Collection, Testing, and Rehabilitation Records;

i. All records related to the collection process, including all logbooks and certification statements.

ii. Records of employee confirmed positive drug test results.

iii. SAP evaluations.

iv. Employee rehabilitation records.

v. Records of negative test results.

(cc) Paragraph (A) of section IV, Appendix J, Part 121;

i. Types of Records:

• Records of employee alcohol test results with results indicating an alcohol concentration of 0.02 or greater.

• Records related to other violations of 14 CFR Part 65, § 65.46a; 14 CFR Part 121, § 121.458; or 14 CFR Part 135, §135.253.

• Documentation of refusals to take required alcohol tests.

• Calibration documentation

• Employee evaluations and referrals.

• Copies of any annual reports submitted to the FAA under Appendix J, Part 121.

• Records related to the collection process (except calibration of evidential breath testing devices) and training.

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• Records of all test results below 0.02.

• Collection logbooks, if used.

• Documents relating to the random selection process.

• Calibration documentation for evidential breath testing devices.

• Documentation of breath alcohol technician training.

• Documents generated in connection with decisions to administer reasonable suspicion alcohol tests.

• Documents generated in connection with decisions on postaccident tests.

ii. Records related to test results:

• Documents verifying existence of a medical explanation of the inability of a covered employee to provide adequate breath for testing.

• The employer's copy of the alcohol test form, including the results of the test;

• Documents related to the refusal of any covered employee to submit to an alcohol test.

• Documents presented by a covered employee to dispute the result of an alcohol test iii. Records related to evaluations:

• Records pertaining to a determination by a substance abuse professional concerning a covered employee's need for assistance.

• Records concerning a covered employee's compliance with the recommendations of the substance abuse professional.

• Records of notifications to the Federal Air Surgeon of violations of the alcohol misuse prohibitions in 14 CFR, Chapter 1 by covered employees who hold medical certificates issued under Part 67.

iv. Records related to education and training:

• Materials on alcohol misuse awareness

• Documentation of compliance with the requirements of section VI, paragraph A of this appendix.

• Documentation of training provided to supervisors for the purpose of qualifying the supervisors to make a determination concerning the need for alcohol testing based on reasonable suspicion.

• Certification that any training conducted under this appendix complies with the requirements for such training.

(dd) Section 125.401 of 14 CFR Part 125;

Par 7Page 6 (ee) Section 135.63(a)(4) of 14 CFR Part 135;

(ff) Section 135.251(b) of Part 135: and (gg) Section 135.255(b) of Part 135.

2 Other records pertaining to the individual’s performance as a pilot that are maintained by the air carrier or person concerning:

(aa) The training, qualifications, proficiency, or professional competence of the individual, including comments and evaluations made by a check airman designated in accordance with sections 121.411, 125.295, or 135.337 of 14 CFR;

(bb) Any disciplinary action taken with respect to the individual that was not subsequently overturned; and (cc) Any release from employment or resignation, termination, or disqualification with respect to employment.

b. Written Consent; Release From Liability.

(1) An air carrier must obtain written consent from the individual before the individual’s records are requested (see 49 U.S.C. § 44703(h)(2)(A)).

(2) Provided there is no other provision of law or agreement to the contrary, an air carrier making a request for records under 49 U.S.C. § 44703(h)(1) may require the individual who is the subject of the records to execute a release from liability for any claim arising from the furnishing of such records to or the use of such records by such air carrier [other than a claim arising from furnishing information known to be false and maintained in violation of a criminal statute] (see 49 U.S.C. § 44703(h)(2)(B)).

c. Reporting Period. An air carrier or person providing records shall not furnish a record if the record was entered more than 5 years before the date of the request, unless the information concerns a revocation or suspension of an airman certificate or motor vehicle license that is in effect on the date of the request (see 49 U.S.C. § 44703(h)(3)).

d. Maintaining Records. The Administrator and air carriers shall maintain pilot records described in 49 U.S.C. § 44703(h)(1)(A) and (B) for a period of at least 5 years (see § 44703(h)(4)).

NOTE: The statutory requirement of 49 U.S.C. § 44703(h)(4) to maintain records identified by PRIA for at least 5 years is independent of any regulatory requirement addressing other time periods for maintaining records. For example, if a regulation requires

Par 7 Page 7 that a certain record be maintained for only 2 years, if that record falls within the ambit of PRIA, then that record must be kept for at least 5 years to comply with PRIA.

e. Receipt Of Consent -- Provision Of Information (See 49 U.S.C. § 44703(h)(5)). A person furnishing a record in response to a request made under PRIA:

(1) Shall not furnish such records without first obtaining a copy of the written consent of the individual who is the subject of the records; and

(2) Shall furnish a copy of all such requested information not later than 30 days after receiving the request.

f. Pilot Right To Receive Notice And Copies of Records (See 49 U.S.C. § 44703(h)(6)).

A person receiving a request under PRIA must provide the individual who is the subject of the request:

(1) Written notice of the request and of the individual's right to receive a copy of such records within 20 days of receipt of the request; and

(2) A copy of such records within a reasonable time, but not later than 30 days after the date of the request, if requested by the individual.

NOTE: The statutory provision to provide the individual “written notice of the request and of the individual’s right to receive a copy of such records” is addressed in FAA Form 8060-10, FAA Records Request (PRIA), and FAA Form 8060-11, Air Carrier and Other Records Request (PRIA). Air carriers or persons receiving FAA Form 8060-11, completed as specified in Appendix 3 of this AC, need not supply a second notice to the individual.

g. Reasonable Charges For Processing Requests And Furnishing Copies. A person who receives a request for records under 49 U.S.C. § 44703(h)(1) or (6) may establish a reasonable fee for the cost of processing the request and furnishing copies of the records (see 49 U.S.C.

§ 44703(h)(7)).

(1) When the individual who is the subject of the records does not request a copy of the records, reasonable fees, if any, should be charged to the air carrier or person making the request.

(2) When the individual who is the subject of the records requests a copy of the records, reasonable fees, if any, should be charged separately to the person making the request and separately to the individual requesting a copy.

NOTE: Although a reasonable fee may be charged for providing records, those records may NOT be withheld until payment is made. Records must be provided within 30 days of receipt of the request (see 49 U.S.C.

Par 7Page 8 § 44703(h)(5) and § 44703(h)(10)).

h. Standard Forms. The Administrator is required to promulgate standard forms (see 49 U.S.C. § 44703(h)(8)). These standard forms may be used:

(1) By an air carrier to request records under 49 U.S.C. § 44703(h)(1);

(2) By an air carrier to obtain the written consent of the individual who is the subject of a request under 49 U.S.C. § 44703(h)(1) for the release of the records; and

(3) By a holder of records to inform the individual of:

(a) The request; and

(b) The individual right of that individual to receive a copy of any records furnished in response to the request.

NOTE: Standard forms are provided in Appendices 2 through 4 of this AC.

i. Pilot Right To Correct Inaccuracies In Records. Before making a final hiring decision with respect to the individual, an air carrier that maintains, or requests and receives, the records of an individual under 49 U.S.C. § 44703(h)(1) shall provide the individual with a reasonable opportunity to submit written comments to correct any inaccuracies contained in the records (see 49 U.S.C. § 44703(h)(9)).

j. Pilot Right To Review Records. Unless there are other provisions of law or agreement to the contrary, a pilot has the statutory right to review his/her records (see 49 U.S.C. § 44703(h)(10)).

Upon written request from a pilot who is or has been employed by such air carrier:

(1) The air carrier shall make available to the pilot for review, any and all employment records referred to in 49 U.S.C. § 44703(h)(1)(B)(i) or (ii) pertaining to the employment of the pilot; and

(2) The air carrier shall provide a copy of the aforementioned records to the pilot within a reasonable time, but not later than 30 days after the date of the request from the pilot.

k. Privacy Protections. The PRIA requires the privacy of the individual who is the subject of the records to be protected (see 49 U.S.C. § 44703(h)(11)). An air carrier that receives the records of an individual under 49 U.S.C. § 44703(h)(1):

(1) May use such records only to assess the qualifications of the individual in deciding whether or not to hire the individual as a pilot; and

(2) Shall take such actions as may be necessary to:

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(a) Protect the privacy of the pilot;

(b) Protect the confidentiality of the records; and

(c) Ensure that information contained in the records is not divulged to any individual who is not involved in the hiring decision.

l. Special Rules With Respect To Certain Pilots (See 49 U.S.C. § 44703(h)(14)).

(1) Pilots Of Certain Small Aircraft. Before receiving the records required by 49 U.S.C.

§ 44703(h)(1), an air carrier may allow an individual to begin service for a period not to exceed 90 days as a pilot of an aircraft having a maximum payload capacity of 7,500 pounds or less (as defined in 14 CFR §119.3), or a helicopter, provided:

(a) The flight is not a scheduled operation (as defined in 14 CFR § 119.3);

(b) The air carrier obtains and evaluates the information required by 49 U.S.C.

§ 44703(h)(1) before the end of the 90-day period; and

(c) The contract between the air carrier and the individual contains a term that provides that the continuation of the individual’s employment, after the last day of the 90-day period, depends on a satisfactory evaluation of any record received pursuant to a request under PRIA.

(2) Good Faith Exception.

(a) An air carrier may allow an individual to begin service as a pilot without obtaining information about the individual under 49 U.S.C. § 44703(h)(1)(B) from an air carrier or person that no longer exists; or, from a foreign government or entity that employed the individual, if the air carrier required to obtain the information has made a documented good faith attempt to obtain such information.

(b) Mail forwarded via the United States Postal Service (USPS) as “Certified, Return Receipt,” may be considered as a documented good faith attempt. Similarly, mail forwarded through either the USPS or a private carrier that provides a documented delivery of the request may also be considered as a documented good faith attempt to obtain such information.

NOTE: PRIA is silent on how long an air carrier must wait after making a documented good faith attempt for records and determining that no records are available. For air carriers that DO NOT fall within the exception at 49 U.S.C. 44703(h)(14), Special Rules With Respect To Certain Pilots, that time period must be longer than 30 days.

m. Electronic Access To FAA Records (See 49 U.S.C. § 44703(h)(15)). On April 5, 2000, PRIA was amended to allow designated individuals electronic access to FAA records. The

Par 7Page 10 electronic access to FAA records was coordinated with industry and is designed specifically for the purpose of increasing timely and efficient access to FAA records described in 49 U.S.C.

§ 44703(h)(1)(A). Under the revised statute, the Administrator may allow, under terms established by the Administrator:

(1) An individual designated to have electronic access to a specified database containing such records.

(2) The terms established by the Administrator shall limit such access to instances in which information in the database is required by the designated individual in making a hiring decision concerning a pilot applicant, and shall require that the designated individual provide assurances satisfactory to the Administrator that information obtained using such access will not be used for any purpose other than making the hiring decision.

NOTE: The FAA will provide further guidance on electronic access to FAA records prior to implementation.

n. Limitation On Liability (See 49 U.S.C. § 44703(i)(1)). No action or proceeding may be brought by or on behalf of an individual who has applied for or is seeking a position with an air carrier as a pilot and who has signed a release from liability, as provided for under 49 U.S.C.

§ 44703(i)(2), against:

(1) The air carrier requesting the records of that individual under 49 U.S.C.

§ 44703(h)(1);

(2) A person who has complied with such request;

(3) A person who has entered information contained in the individual’s records; or

(4) An agent or employee of a person described in 49 U.S.C. § 44703(i)(1)(A) or (B), in the nature of an action for:

(a) Defamation;

(b) Invasion of privacy;

(c) Negligence;

(d) Interference with contract, or otherwise; or

(e) Under any Federal or State law with respect to the furnishing or use of such records in accordance with 49 U.S.C. § 44703(h).

o. Preemption (See 49 U.S.C. § 44703(i)(2)). No State or political subdivision thereof may enact, prescribe, issue, continue in effect, or enforce any law (including any regulation, standard,

Par 7 Page 11 or other provision having the force and effect of law) that prohibits, penalizes, or imposes liability for furnishing or using records in accordance with 49 U.S.C. § 44703(h).

p. Provision Of Knowingly False Information (See 49 U.S.C. § 44703(i)(3)). Paragraphs (1) and (2) of 49 U.S.C. § 44703(i) shall not apply with respect to a person who furnishes information in response to a request made under 49 U.S.C. § 44703(h)(1) that:

(1) The person knows is false; and

(2) Was maintained in violation of a criminal statute of the United States.

q. Limitation On Statutory Construction (See 49 U.S.C. § 44703(j)). Nothing in 49 U.S.C. § 44703(h) shall be construed as precluding the availability of the records of a pilot in an investigation or other proceeding concerning an accident or incident conducted by the Administrator, the National Transportation Safety Board, or a court.

8. STANDARD FORMS. 49 U.S.C. § 44703(h)(8) requires the Administrator to promulgate standard forms that may be used by air carriers to request records. By using FAA standard forms and by following the specific instructions for those forms, an air carrier requesting pilot records may significantly expedite response time. Copies of the standard forms may be downloaded from the Internet at http://www.faa.gov/avr/afs/pria/. Requests for FAA records pertaining to the current airman medical certificate, current airman certificates and associated type ratings, including any limitations to those certificates and ratings, and summaries of legal enforcement actions covered under 49 U.S.C. § 44703(h) should be transmitted via one of the following means.

(1) Regular mail through the United States Postal Service (USPS):

Federal Aviation Administration Attn.: Aviation Data Systems Branch, AFS-620 (PRIA) PO Box 268872 Oklahoma City, OK 73126-8872

(405) 954-0990 FAX (405) 954-4655

(2) Expedited mail service through USPS or private carrier:

Federal Aviation Administration Attn.: Aviation Data Systems Branch, AFS-620 (PRIA) 6500 S. MacArthur Blvd., ARB Room 313 Oklahoma City, OK 73169

(405) 954-0990 FAX (405) 954-4655

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b. FAA Form 8060-11, Air Carrier and Other Records Request (PRIA) -- Appendix 3.

Requests for air carrier and other records pertaining to the individual should be submitted directly to the applicable air carrier or person that previously employed the individual at any time during the 5-year period preceding the date of employment application.

c. National Driver Register (NDR) Record Request -- Appendix 4.

(1) The National Highway Traffic Safety Administration (NHTSA) is responsible for administering the NDR portion of a record request under 49 U.S.C. § 44703(h). Requests for NDR records should be made directly to any state motor vehicle agency. NHTSA maintains an Internet database with current addresses and telephone numbers for State motor vehicle agencies that may be accessed at http://www.nhtsa.dot.gov/people/perform/driver/. A sample form that the States may use to request NDR information from the NDR is located in Appendix 4.

(2) Questions concerning NDR records may be addressed to:

National Highway Traffic Safety Administration Attn.: National Driver Register (NTS-32) 400 7th Street, SW.

Washington, D.C. 20590

(202) 366-4800

9. REQUEST FOR INFORMATION CONCERNING 49 U.S.C. § 44703(h). All information requests and/or questions pertaining to 49 U.S.C. § 44703(h) should be addressed to:

Federal Aviation Administration Attn.: Air Transportation Division, AFS-200 800 Independence Avenue, SW.

Washington, D.C. 20591

(202) 267-8166 NOTE: Do not mail FAA Records Requests (PRIA) to this address – use the address listed in paragraph 8a(1) or (2).

10. INTERNET. Electronic copies of this AC and the standard forms may be downloaded from the internet at http://www.faa.gov/avr/afs/pria/.

/s/ Louis C. Cusimano, for James J. Ballough Director, Flight Standards Service