by Gregory J. Reigel, Esq.
© Copyright 2022. All rights reserved!
Published in Midwest Flyer Magazine August/September 2022 Digital Issue
Business aircraft operators’ private flight operations under 14 C.F.R. Part 91 (Part 91) are now a little less private. Under newly promulgated 14 C.F.R. Part 111 (Part 111), certain Part 91 business aircraft operators must now comply with certain requirements under the Pilot Records Improvement Act (PRIA) and the electronic Pilot Records Database (PRD) regulations. These operators must now disclose, upon request, records they maintain with respect to their pilot hiring, training and checks, and employment termination.
Specifically, aircraft operators conducting flights under Part 91 using two or more aircraft in furtherance of, or incidental to, their business where the aircraft either (a) require a type rating or (b) are turbine helicopters (“Business Aircraft Operators”) are now subject to several of the requirements under PRIA and the PRD.
PRIA History
Congress enacted PRIA to ensure that air carriers are able to adequately investigate each pilot’s employment background and other information pertaining to pilot performance before making a hiring decision and allowing that individual to serve as a flight crew member in air carrier operations. Importantly, the requirements of PRIA initially applied only to air carriers – that is, aircraft operators certificated under 14 C.F.R. Part 119 (Part 119) and authorized to conduct 14 C.F.R. Part 121 (Part 121) or 14 C.F.R. Part 135 (Part 135) operations. Originally and for two decades, PRIA did not apply to Part 91 operators.
Under PRIA, prior to allowing an individual to begin service as a pilot, air carriers must (i) make certain requests for pilot-related records from the Federal Aviation Administration (FAA) and the pilot’s employers during the five-year period preceding the date of the employment application and (ii) receive that information. The records that must be requested and received include those pertaining to the individual’s performance as a pilot and that relate to:
• the training, qualifications, proficiency, or professional competence of the individual, including comments and evaluations made by a check airman;
• any disciplinary action taken with respect to the individual that was not subsequently overturned; and
• any release from employment or resignation, termination, or disqualification with respect to employment.
Air carriers must also request information regarding the pilot applicant from the FAA and the National Driver Register (NDR).
PRD History
The Airline Safety and Federal Aviation Administration Extension Act of 2010 (the Act) amended PRIA to require the FAA to create a pilot records database containing various types of pilot records provided by (i) the FAA, air carriers, and other employers of pilots; and (ii) the NDR. Under the Act, air carriers are to have access to the PRD to review and evaluate a pilot’s records before allowing that individual to begin service for them as a pilot. The FAA must maintain a pilot’s records in this database until it receives notice that the pilot is deceased.
On March 30, 2020, three years after the statutory deadline for establishing the electronic PRD, the FAA published the PRD notice of proposed rulemaking (NPRM) in the Federal Register. On June 10, 2021, the FAA published the PRIA/PRD final rule establishing Part 111. Part 111 contains four subparts regulating various aspects of PRIA and the PRD:
• Subpart A contains the general requirements of Part 111, including how to submit an application for database access and other details about user roles within the PRD.
• Subpart B provides requirements for operators reviewing records — in particular, details regarding employer obligations during the records-review process.
• Subpart C contains provisions for record reporting, including which records to report and timelines for reporting records.
• Subpart D provides requirements and information regarding pilots’ access to the PRD.
Part 111 requires Part 119 certificate holders, Part 91K fractional operators, and 14 C.F.R. § 91.147 air tour operators to submit information to and review information in the PRD. Additionally, the PRIA/PRD final rule subjects Business Aircraft Operators to the PRD.
As a result, Business Aircraft Operators, public aircraft operators, and certain 14 C.F.R. Part 125 (Part 125) operators must maintain reportable records and report them upon request. However, unlike Part 119 certificate holders, fractional operators, and air tour operators are not required to review pilot records via the PRD prior to putting an individual into service as a pilot.
The timing requirements for compliance with the new PRD rules are complicated, and attention to the details of the rules is very important for a business operator to timely satisfy the requirements imposed by the rule. Here are important PRD deadlines:
• Compliance with subpart B of Part 111 has been required since June 10, 2022, except the air carriers’ review and evaluation requirements in section 111.105(b)(1), for which compliance has been required since December 7, 2021.
• Compliance with subpart C has been required since June 10, 2022. Under section 111.255, compliance for reporting historical records dated on or after January 1, 2015, is required by June 12, 2023.
• Compliance for reporting historical records dated before January 1, 2015, is required by September 9, 2024.
• Concurrent compliance with PRIA requirements will end on September 9, 2024. As a result, operators who must obtain and review pre-hire records will need to use both PRD and PRIA processes until that time.
The PRD will identify the records that exist about a pilot; the operator is responsible for determining if it is necessary to obtain further information prior to permitting an individual to begin service as a pilot.
How Does PRIA/PRD Work?
So, how does PRIA/PRD work for Part 91 business aircraft operators?
Access to the PRD. Covered Part 91 business aircraft operators must submit an application to access the PRD at least 30 days before the operator initiates aircraft operations. Application is made through the FAA’s PRD website. The application must include the name of the operator and the full name, job title, telephone number, and email address of the “responsible person.”
The responsible person is “an individual authorized to sign and submit the application required by this section who is employed by the operator and whose identity the Administrator has verified.” Once approved, the responsible person may access the PRD on behalf of the Part 91 business aircraft operator and may delegate PRD access to authorized users and proxies. Any change to the application information requires an amendment within 30 days of the change.
Reporting to the PRD. Part 91 business aircraft operators already operating on June 10, 2022, are required to submit their responses to PRIA requests using the PRD after that date or, if operations are commenced after June 10, 2022, within 30 days of commencing operations.
Within 14 days of receiving a request for pilot information, Part 91 operators subject to the rule will be required to provide to the PRD information on:
• drug and alcohol testing (if applicable);
• pilot training, qualifications, and proficiency;
• final disciplinary actions related to pilot performance;
• final separation from employment; and
• certain historical data (which is voluntary).
However, Business Aircraft Operators will only have to submit this data if they possess the information. If they do not possess responsive records, the Part 91 business aircraft operators must provide a statement to that effect. Once produced, this information will be available for review by pilots who may access their own records and air carriers that have a pilot’s consent to access those same records.
Business Aircraft Operators are not required to review or access the PRD when they hire pilots. However, if an operator is going to review the PRD records for a pilot, the operator must obtain the pilot’s consent. The FAA will maintain the PRD records for the life of the pilot.
If the operator discovers or is advised of an alleged error or inaccuracy in information previously reported to the PRD, it must correct that record in the PRD within 10 days or initiate an investigation to address and resolve any dispute over the accuracy of the record within 30 days. In the latter circumstance, upon completion of the investigation, the record must be corrected in the PRD, or, if the operator determines that no correction is required, the disposition of the investigation must be reported to the PRD.
Conclusion
Business Aircraft Operators subject to Part 111 need to review the regulations to understand their new reporting obligations. In addition to the new regulations, FAA letters of interpretation issued by the FAA’s Office of the Chief Counsel discussing PRIA, FAA Advisory Circular 120-68J, and the FAA’s PRD website are also recommended reading to understand the PRIA/PRD obligations. Finally, covered operators should review their record-keeping practices to determine not only what records need to be reported, but also what records they may or may not want to create in the first place.
EDITOR’S NOTE: Greg Reigel is an attorney with Shackelford, Melton, McKinley & Norton, LLP, and represents clients throughout the country in aviation and business law matters. He has more than two decades of experience working with airlines, charter companies, fixed base operators, airports, repair stations, pilots, mechanics, and other aviation businesses in aircraft purchase and sales transactions, regulatory compliance including hazmat and drug and alcohol testing, contract negotiations, airport grant assurances, airport leasing, aircraft-related agreements, wet leasing, dry leasing, and FAA certificate and civil penalty actions. For assistance, call 214-780-1482, email: greigel@shackelford.law, or Twitter @ReigelLaw (www.shackelford.law).
