AC 120-68C

Subject: PILOT RECORDS IMPROVEMENT ACT OF 1996,

AS AMENDED Date: 1/28/04 Initiated by: AFS-200 AC No: 120-68C 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.

2. CANCELLATION. AC 120-68B, Pilot Records Improvement Act of 1996, As Amended, dated March 22, 2002, is canceled.

3. CHANGED INFORMATION. A vertical bar in the margin identifies revised, added, or deleted text.

4. 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.

5. 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.

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

6. 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.

7. 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

Par 7 Page 3 found that, although the pilot(s) had a history of poor performance, the current employer had not 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.

8. 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)).

NOTE: The employing air carrier is not required to request pilot records from any branch of the United States Armed Forces, the National Guard, or a reserve component of the United States Armed Forces (see 49 U.S.C.

§ 44703 (h)(1)(B)).

(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) When must records be provided? An air carrier or person who receives a request for records pursuant to PRIA shall provide a copy of all records required under § 44703(h)(1)(A), (B), or (C), as applicable, that are maintained by the air carrier or person to the requesting air carrier not later than 30 days after receiving the request.

NOTE: The failure of an entity [air carrier or person] to provide the requested records within the statutory 30-day limitation should be reported to the Point of Contact listed on FAA’s PRIA website at http://www.faa.gov/avr/afs/pria/.

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.

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(4) 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 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) 14 CFR Part 121.

NOTE: DO NOT include records that DO NOT pertain to the individual’s performance as a pilot . For example, an agreement between the pilot and air carrier/person to pay for training, personal bankruptcy papers, or unemployment compensation disputes between a pilot and air carrier/person are not considered to pertain to the individual’s performance as a pilot.

i. Section 121.683 -- current records that show whether the crewmember complies with the applicable sections of Chapter 1, Title 14 CFR, including, but not limited to:

• Proficiency and route checks;

• Airplane and route qualifications;

• Training;

• Any required physical examinations; and

• Records of each action taken concerning the release from employment or physical or professional disqualification of the flight crewmember that was not subsequently overturned;

NOTE: Effective August 1, 2001, the drug and alcohol testing regulations in Appendices I and J of Part 121 were amended to include the provisions of 49 CFR Part 40, Procedures for Transpor tation Workplace Drug and Alcohol Testing Programs. Due to these amendments, the records referenced in

Par 8 Page 5 PRIA at 49 U.S.C. § 44703(h)(1)(B), (o riginally 49 U.S.C. § 44936(f)(1)(B)), are referenced in 49 CFR § 40.333(a)(1)-(2). Paragraph (ii) lists the records that are required by 49 CFR § 40.333.

NOTE: Request for drug and alcohol records required under PRIA shall be requested using the “Authorization For Release Of DOT Drug And Alcohol Testing Records Under PRIA And Maintained Under Title 49 Code of Federal Regulations (49 CFR) Part 40” which may be found in Appendix 7 and on the following website:

http://www.faa.gov/avr/afs/pria/

ii. Appendix I and J, Part 121, and maintained in accordance with 49 CFR Part 40, Procedures for Transportation Workplace Drug and Alcohol Testing Programs, § 40.333:

• Records of alcohol test results indicating an alcohol concentration of 0.02 or greater;

• Records of verified positive drug test results;

• Documentation of refusals to take required alcohol and/or drug tests (including substituted or adulterated drug test results);

• Substance Abuse Professional (SAP) reports;

• All follow-up tests and schedules for follow-up tests;

• Information obtained from previous employers under 49 CFR § 40.25 concerning drug and alcohol test violations of employees;

and

• Records of negative and cancelled drug test results and/or alcohol test results with a concentration of less than 0.02.

(bb) 14 CFR Part 125.

i. Section 125.401 -- current records that show whether the crewmember complies with the applicable sections of Chapter 1, Title 14 CFR, including, but not limited to:

• Proficiency and route checks;

• Airplane qualifications;

• Any required physical examinations; and

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• Records of each action taken concerning the release from employment or physical or professional disqualification of the flight crewmember that was not subsequently overturned.

(cc) 14 CFR Part 135.

i. Section 135.63(a)(4) – current records that show whether the crewmember complies with the applicable sections of Chapter 1, Title 14 CFR, including, but not limited to:

• Full name;

• Pilot certificate (by type and number) and ratings held;

• Aeronautical experience;

• Current duties and the date of assignment to those duties;

• Effective date and class of medical certificate;

• Date and result of each of the initial and recurrent competency tests and proficiency and route checks re quired by part 135 and the type of aircraft flown during that test or check;

• Check pilot authorization, if any;

• Release from employment fo r physical or professional disqualification that was not subsequently overturned; and

• Date of the completion of the initial phase and each recurrent phase of the training required by part 135.

ii. Sections 135.251(b) and 135.255(b) -- records that pertain to Appendix I and J, Part 121, and maintained in accordance with 49 CFR Part 40, Procedures for Transportation Workplace Drug and Alcohol Testing Programs, § 40.333:

• Records of alcohol test results indicating an alcohol concentration of 0.02 or greater;

• Records of verified positive drug test results;

• Documentation of refusals to take required alcohol and/or drug tests (including substituted or adulterated drug test results);

• Substance Abuse Professional (SAP) reports;

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• All follow-up tests and schedules for follow-up tests;

• Information obtained from previous employers under 49 CFR § 40.25 concerning drug and alcohol test violations of employees;

and

• Records of negative and cancelled drug test results and/or alcohol test results with a concentration of less than 0.02.

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

NOTE: 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. Thus , any entity that is not an air carrier must also provide the requested records within the time specified.

(aa) Training records, e.g., initial and recurrent training records;

(bb) Qualifications, proficiency, or professional competence of the individual, including comments and evaluations made by a check airman designated under sections 121.411, 125.295, or 135.337 of 14 CFR. For example:

i. Documents that show the individual’s qualifications as instructor/evaluator, check airman, or examiner; and

ii. Records of the individual’s proficiency checks -- recurring checks for Captain, First Officer, or Line Checks.

(cc) Records of any disciplinary action taken with respect to the individual that was not subsequently overturned; and

(dd) Any release from employment or resignation, termination, or disqualification of the individual with respect to employment.

NOTE: DO NOT include records that DO NOT pertain to the individual’s performance as a pilot . For example, an agreement between the pilot and air carrier/person to pay for training, personal bankruptcy papers, or unemployment compensation disputes between a pilot and air carrier/person are not considered to pertain to the individual’s performance as a pilot.

b. Written Consent; Release From Liability.

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(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 and the revocation or suspension 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)). The following records are required to be maintained:

(1) Records Showing Compliance With PRIA. To show that it has met the statutory requirements of 49 U.S.C. § 44703(h), each air carrier shoul d have in place a records retention system that will allow the carrier and FAA to verify compliance with all PRIA requirements.

Records received pursuant to PRIA requests should be maintained as follows:

(a) Pilot Placed In Service. Although the PRIA requires at least a 5-year retention period, an air carrier must be able to show that it complied with the provisions of the statute as long as the individual for whom the records pertain is in service as a pilot with such air carrier.

Thus, the records required to be requested and received under 44703(h)(1)(A) and (B) for any pilot placed in service as a pilot by an air carrier on or after February 6, 1997, must be maintained by the air carrier:

1 as long as that pilot is in service as a pilot by such air carrier; and

2 for at least 5-years after the pilot terminates service with such air carrier.

(b) Pilot Hired and Trained, but NOT Placed in Service. The records described in 44703(h)(1)(A) and (B) that are compiled by the air carrier on a pilot during the training process, even if that pilot does not complete training and is not placed in service, are required to be maintained for at least 5 years.

NOTE: There are no statutory requirements to maintain records requested and received under the PRIA if the pilot is not hired as a pilot with the air carrier.

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(2) Other Regulatory Requirements. 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 that a certain record be maintained for only 2 years, and 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 records request under PRIA must provide the individual who is the subject of the request:

(1) Within 20 days of receipt of the request, written notice of the request and of the individual’s right to receive a copy of such records; and

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

§ 44703(h)(5) and § 44703(h)(10)).

h. Standard Forms.

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(1) FAA Statutory Requirement. 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.

(2) Types of Standard Forms. There are four (4) forms that are required in order to comply with PRIA. Copies of the standard forms may be downloaded from the Internet at http://www.faa.gov/avr/afs/pria/. These forms are shown and explained in appendices 2 through 5 of this AC.

NOTE: FAA PRIA Forms 8060-10 and 8060- 11 have been modified and any forms dated before 04/2003 are obsolete a nd may not be used. In addition, two (2) new FAA Forms [8060-10A and 8060-11A] have been promulgated to meet the statutory requirement of 49 U.S.C. § 44703(h).

(a) FAA Form 8060-10, FAA Records Request (PRIA) (see Appendix 2). FAA Form 8060-10 has a dual purpose and is used by:

1 An air carrier to request a pilot’s FAA records; and

2 A pilot to give written consent for the release of his/her FAA records to the requesting air carrier.

NOTE: Requests for FAA records should be transmitted to the FAA by one of the means listed on FAA Form 8060-10 (see Appendix 2).

(b) FAA Form 8060-10A, Airman Notice And Right To Receive Copy -- FAA Records (PRIA) (see Appendix 3). FAA Form 8060-10A is a newly promulgated FAA Form that meets the statutory requirement of 49 U.S.C. § 44703(f). FAA Form 8060-10A is used by:

1 The FAA to notify the pilot of an FAA Records Request (PRIA) from an air carrier, and of the individual’s right to receive a copy of the records furnished to the air carrier;

and

2 The pilot to notify the FAA whether or not he/she wants a copy of the records furnished to the requesting air carrier.

(c) FAA Form 8060-11, Air Carrier and Other Records Request (PRIA) (see Appendix 4). FAA Form 8060-11 is used by:

1 An air carrier to request PRIA records from another air carrier or person; and

2 A pilot to give the requesting air carrier written consent for release of the PRIA records.

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(d) FAA Form 8060-11A, Airman Notice And Right To Receive Copy – Air Carrier And Other Records (PRIA) (see Appendix 5). FAA Form 8060-11A is a newly promulgated FAA Form that meets the statutory requirement of 49 U.S.C. § 44703(f). FAA Form 8060-11A is used by:

1 The air carrier or person receiving a request for records to notify the pilot that a request for records has been made and that the pilot has the right to receive a copy of the requested records; and

2 The pilot to notify the requesting air carrier whether or not he/she wants a copy of the furnished records.

i. National Driver Register (NDR) Record Request -- Appendix 6.

(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 a State 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 Driv er Register (NTS-32) 400 7th Street, SW.

Washington, D.C. 20590

(202) 366-4800

j. 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)).

k. 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 make available 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.

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l. 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:

(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.

m. 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