June 28, 2020

Time is running out for NBAA members to express their concerns to the FAA about the negative impact a proposed rule on pilot records reporting would have on their operation, the association said in a recent webinar. Comments must be submitted no later than 11:59 p.m. (EDT) on Monday, June 29.

The proposal would require certain Part 91 operators and others to submit a raft of additional pilot data to the agency, through the use of an electronic database. The FAA published the notice of proposed rulemaking (NPRM) on March 30, 2020, and if adopted, it would have a substantial impact on a large portion of the business aviation community, much of which already complies with certain reporting requirements.

A recent edition of the NBAA News Hour highlighted numerous potential problems with the NPRM, and featured moderators Doug Carr, NBAA’s vice president of regulatory and international affairs, and Brian Koester, CAM, NBAA’s director of flight operations and regulations, along with panelists Jason Herman, CAM, NBAA Domestic Operations Committee chairman and Paul A. Lange, managing member of the Law Offices of Paul A. Lange, LLC.

Carr called the proposed rule a “full frontal assault” on business aviation, highlighting three significant concerns with the NPRM. First, the NPRM would require certain Part 91 operators to report substantial training, employment, disciplinary and proficiency-related events. This would impose a considerable burden on the operator, as, for example, proficiency could mean recording day and night takeoffs and landings, instrument currency requirements and more. Second, the FAA proposes to include all check pilot comments associated with training and checking. Finally, the FAA’s attempt to define “corporate flight department” introduces untold unintended consequences for future regulations.

“We believe this is one of the most dangerous proposals affecting business aviation that we have seen from the FAA over the past decade and, if finalized, we believe will actually harm safety,” said Carr, adding instructor and check pilot comments should be used to help direct additional opportunities for training, not to guide hiring decisions.

Lange emphasized this requirement would have a “chilling effect” on instructors’ and check airmen’s ability to provide meaningful feedback.

Lange also provided background on Public Law 111-216, which was the impetus for the NPRM, noting the few short pages of legislative text do not mention Part 91, private operations, flight departments or any similar language. The proposed definition of “corporate flight department” is not contemplated in the legislation.

“Therefore, this very large proposed rule that we are now faced with in a lot of ways does not have a basis in the underlying act,” said Lange.

NBAA believes the inclusion of Part 91 operators is a clear case of regulatory overreach and could lead to future heavy-handed regulation of these operators.

Much of the NPRM involves employment law, though most employment law is established by individual states or other jurisdictions. Lange said this raises a question about the FAA’s jurisdiction in this area, adding that the current Pilot Records Improvement Act (PRIA) immunity language, intended to protect employers and which is mostly repeated in the NPRM, has not effectively prevented civil lawsuits. Several legal challenges across the country demonstrate the false security this immunity language may provide.

The FAA also incorrectly estimated the costs to affected Part 91 operators, which NBAA believes will be much higher than projected by the agency, and improperly assumes that these Part 91 operators are “gateway” employers to air carriers; that is, that pilots frequently transition from Part 91 operations to air carrier operations.

NBAA member companies are encouraged to use the NBAA Regulatory Alert: Pilot Records Database NPRM as a guide to draft and submit their own comments, including concerns and data specific to their operation.