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Burdensome Reporting Regulations Proposed by FAA Will Affect Part 91 Corporate Flight Departments

June 29, 2020

The Federal Aviation Administration’s (FAA) Notice of Proposed Rulemaking for a Pilot Records Database (“Proposed PRD Regulations”) seeks to codify the requirements of § 203 of the Airline Safety and Federal Aviation Administration Extension Act of 2010 (the “PRD Act”). The PRD Act was enacted in response to a recommendation made by the National Transportation Safety Board as a result of the crash of Colgan Air Flight 3407. The captain of that flight had previously failed two checkrides with another company, but the existing Pilot Records Improvement Act (PRIA) did not require Colgan to inquire about, nor the prior company to disclose, these failures. The ultimate purpose of both the PRD Act and the Proposed PRD Regulations is to create a robust, standardized recordkeeping system to be used in pilot hiring decisions, but the ultimate result if enacted would be to impose an extremely burdensome new affirmative obligation on certain Part 91 operators.

Among other things, the Proposed PRD Regulations: (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.”

The Proposed PRD Regulations define “Corporate Flight Department” as an entity that operates two or more aircraft that require type certificates in furtherance of or incidental to a business. This is a substantial departure from the PRD Act and its legislative history which do not include any reference to Part 91 corporate flight departments.

Under the existing PRIA regulations, operators under Part 91 are only required to respond to PRIA requests received from an air carrier and provide information dating back five years from the date of the request. Under the Proposed PRD Regulations, Corporate Flight Departments would have a new affirmative obligation to manually enter records into the FAA’s database within 30 calendar days of the event creating the record. Although Corporate Flight Departments wouldn’t be required to check the FAA database when hiring a new pilot, they could have access to the database on a voluntary basis.

The scope of records that would be required to be submitted under the Proposed PRD Regulations is expansive. At a minimum, it would be all records that a pilot is required to retain under Part 61 to document training and currency requirements, including check flights, instrument approaches, proficiency checks, and landings. The requirement applies to all records the Corporate Flight Department creates related to pilot training, currency, qualifications, and professional competence, so if a Corporate Flight Department collects records in excess of the minimum requirements those records would need to be submitted as well. 

The expanded scope of records required raises a number of issues. First, the time required to collect and manually enter these records could be overly burdensome for many smaller Corporate Flight Departments. Second, for those Corporate Flight Departments that currently go above and beyond the FAA training requirements, it may create an incentive to limit the amount of training performed and documentation collected. Third, because the records submitted to the FAA would become a permanent record retained for the life of a pilot, examiners and check pilots may be reluctant to provide honest feedback and constructive criticism, both of which are an integral part of any safety program.

A final issue is the potential legal risks associated with submitting such detailed information to an FAA database that will be used by future employers. Although it is permissible to require pilots to sign a liability waiver, state employment laws vary and there have been a number of lawsuits on this issue under PRIA, which has more limited scope of records that must be reported. 

Comments may be submitted to the FAA here through June 29th. The National Business Aviation Association has provided a template as a starting point for submitting comments.

For more information, please contact the professional(s) listed below, or your regular Crowell & Moring contact.

Eileen M. Gleimer
Partner – Washington, D.C.
Phone: +1.202.624.2840