Over objections from pilots and the groups that represent them, the FAA has adopted a sweeping new rule creating a pilot record database. The 232-page rule will go into effect in 60 days after its publication, so around the end of July 2021. Within one year, companies affected by the new rule will need to start using the records database, and within two years, the FAA will require “complete historical record reporting,” though in this case, “complete” mercifully means “for the last seven years, or, since 2015,” by which point operators will need to have a complete historic record for every pilot they’ve employed since that time.
This database, to be maintained by the FAA, is called the Pilot Records Database (PRD), and it makes it both possible and required for operators to share records of the pilots they employ.
The rule would presumably wipe out labor agreements between pilots’ unions and their airlines that put limits on the kinds of data that operators keep (and share with other operators).
What outfits are subject to the new rule? You might think it’s mainly the airlines, but you’d be wrong. It does include most air carriers but also encompasses business aircraft flight departments, air tour providers, shared ownership operators…along with any “entities conducting public aircraft operations” or “holding out to the public.” So far as we can figure, that means just about any kind of commercial fight operation, with a few noteworthy carve-outs. Flight schools would be exempted, as would the military, helicopter logging and similar operations, and agricultural spray plane operators. So, that’s a relief.
Still it’s a wide net, one that will catch up in its regulatory requirements many thousands of small fish who today have little or no legal requirement to maintain such databases. The FAA is said to be readying an advisory circular clarifying the rule and attempting to give answers to the thousands of questions that will soon arise from pilots and operators. We’re girding ourselves for the release of that document, which will presumably attempt to make sense of one of the most ill-advised rules in the FAA’s history.
But why did this rule even happen? What was the impetus to create such a sweeping new web of regulations? The answer is, it’s all about Colgan Air 3407, the Q400 on its way from Newark to Buffalo in 2009 that crashed after the crew failed to recover from an aerodynamic stall that they inadvertently entered. All 49 aboard the plane were killed, as was one person on the ground, when it crashed into a house in Clarence Center, New York, on the plane’s approach path to Buffalo. Thirteen years later, it is the most recent U.S. carrier crash with mass fatalities.
The NTSB’s statement of probable cause in its final report on the crash mostly called out issues related to the specific flight control issues, that is, the crew’s flying of the airplane leading to the stall and after it, all of which were shockingly poor and never should have happened.
But there were also concerns raised over the crew’s presumed fatigued state, though the final report is noncommittal on that issue, as well as the captain’s poor performance on previous training sessions.
In its commentary on the new record-keeping rule, the FAA wrote,
“Additional safety issues the NTSB identified included deficiencies in the air carrier’s record-keeping system and its analysis of the flight crew’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.”
So, today, we have a rule that mandates that such poor performance be documented and recorded so that such events wouldn’t be lost as a pilot moves from one airline to the next.
It happens. Such was the case with Atlas Air 3591, a Boeing 767-300 that crashed while on approach to Houston (IAH) in 2019, killing all three aboard—the captain, first officer and a jump seat passenger who picked the wrong flight to deadhead on. In its final report, the NTSB found that a major factor in the crash, in addition to the first officer’s catastrophically bad flying, “…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,” which were detailed in the report and is parroting what the NTSB said in its report on Colgan Air 3407, a crash from 10 years prior. The report makes clear that Atlas Air didn’t know and couldn’t have known about the poor performance of the pilot on previous training events, though how its own training could have missed such glaring deficiencies calls into question not only that company’s hiring practices but those of every operator who welcomes aboard a pilot who failed a checkride or got fired for something related to safe flying practices.
The rule is inherently anti-pilot, and that’s not to say that inept pilots shouldn’t be held accountable for their poor performance, but that many good pilots will surely be caught up in this new reporting system. We are familiar with a pilot who was busted on a commercial checkride early in his career for landing “six inches short” of the imaginary threshold in a low-wing airplane (which is of course impossible to determine by the naked eye) by an FAA examiner who had expressed that he was unhappy to have been asked by the flight training provider to do the checkride on a Sunday. Abuse of authority is a very real thing, and this rule will give such abusers the additional power to ensure that negative events, however specious, will follow a pilot around forever.
Well, not literally forever. The rule will let operators skip over pilots who are known to be dead, as well as those who might still be alive but would be older than 99 years old, which will keep future generations safe from centenarian airline pilots who did poorly on a line check 70 years earlier.
The new reporting rule takes a system already heavily weighted against pilots and tilts that even further toward employers and regulators, not only giving the ability to share pilot data but requiring them to do so. And while the FAA went to some pains to try to limit what data can be shared, it admits in the rule that operators will have certain discretion. For instance, can and should a pilot who is fired for harassment of coworkers be cited on the record for those actions? The FAA says it’s up the employer, as such behavior can and often does have a negative effect on the safe conduct of a flight crew. The agency also made clear that it would not detail what infractions should get reported, instead leaving it to the operator because there are circumstances that would doubtless arise that would be report-worthy but not mentioned in a specific list.
And it has a point. If it were to say that pilots can be reported for A or B behavior, when C happens, it will be argued that C is exempt because it wasn’t mentioned. The flip side is that the regulation opens itself to the legal argument, and you can bet it’s coming, that it’s overly broad, allowing employers to cite pilots for any behavior they can reasonably argue can lead to poor crew performance. So, in effect, employers can report pilots for a vast number of potential infractions so long as it then argues that such actions were counter to safe ops.
But would an operator ever use that power in order to retaliate against a pilot who, for instance, called into question its safety management practices? It’s a rhetorical question. Of course, some would. In fact, it happens today, and the extent of this management behavior is unknown though probably greater than most suspect. And that kind of suppression of safety reporting and retribution against the reporter is by definition an anti-safety move. The new rule might not give such retaliatory moves carte blanche but it almost certainly allow them far wider latitude.
We can expect lawsuits and arbitration actions by the many hundreds to follow the implementation of this rule, because reporting events that are in dispute, even if it’s mandated by the FAA (which it seems to be), will open reporters up to legal action, some, though surely not all of which, will be justified. And all of this new law and new requirements is based on one crash more than a decade ago in which 50 people were killed. And let’s maintain some perspective. One death is too many, but let’s put that loss of life up against a backdrop of 40,000 Americans killed every year in road accidents.
Let’s just hope that the FAA’s in its zeal to create a reporting system to catch bad pilots doesn’t adversely affect the very safety picture it says that the rule is trying to improve.