On March 31, 2023, almost two years after issuing the Final Pilot Records Database (“PRD”) Rule (the “Rule”), the Federal Aviation Administration (“FAA”) issued a notice (the “Notice”) advising that it will review operators’ compliance with the Rule and may take enforcement action against noncompliance. Crucially, each FAA office must survey compliance of at least twenty-five percent (25%) of the corporate flight departments under their purview by August 31, 2024.
The Final Rule was issued on June 10, 2021, replacing the then-existing Pilot Records Improvement Act (“PRIA”) with the goal of creating a comprehensive system to be used in pilot hiring processes. Crowell & Moring analyzed details of the Final Rule in an earlier client alert.
Currently, operators subject to the Rule must be (i) registered for PRD access, (ii) retaining applicable pilot records, and, for Part 121, 135, 125, and fractional ownership program operators, (iii) using the PRD to review FAA records when hiring pilots, and (iv) conducting mandatory record reporting to PRD. According to the FAA, “many operators, particularly non-Part 121 operators, did not apply for database access by Sept. 8, 2021” and “PRD access activity data shows that some of the Part 121 operators have not accessed any pilot records as of Dec. 7, 2021” in connection with hiring decisions as required by the Rule. In order to assess and ensure compliance industry-wide, the FAA has standardized the approach for FAA offices to conduct surveillance of PRD compliance across all operator groups subject to the Rule according to the following timeline:
- Evaluations for Part 121 and 135 air carriers completed by June 30, 2023;
- Evaluations for Part 125 commercial operators and 91K fractional ownership program managers completed by June 30, 2023;
- Evaluations for § 91.147 air tour operators, corporate operators, and those conducting Public Aircraft Operations (“PAO”) completed by August 31, 2024.
FAA offices will be surveying 25% of the corporate flight departments subject to the Rule (i.e., those having two or more aircraft). FAA inspectors are instructed in the Notice to use broad criteria in determining which 25% of their corporate flight departments to review, including but not limited to:
- Known non-compliance with the Rule;
- High pilot turnover rates;
- Operators not associated with an air carrier Operating Certificate; and
- Operators with accidents, incidents, occurrences, or pilot deviations within the last 5 years.
Corporate flight departments subject to the Rule that meet one or more of the above criteria are more likely to be surveyed as part of their local FAA office’s 25% quota.
Enforcement action for violations can vary depending on the nature of the noncompliance and whether the noncompliance is intentional or reckless. Noncompliance is generally considered intentional or reckless when an operator either knew about PRD requirements or acted with gross disregard for, or with deliberate indifference to, the PRD requirements. Per the Notice, civil penalty action is generally appropriate for such conduct.
The procedures described in the Notice may result in a wave of FAA inspection and enforcement action related to the PRD compliance. All operators should review their internal programs and compliance now to prepare for potential FAA surveillance in the near future.
For further information, please contact:
Mary-Caitlin Ray, Crowell & Moring
mray@crowell.com
