All posts tagged 'Legal Interpretation'

When Does an Individual's Employment Record Relate to Pilot Performance or Professional Competence Under PRIA?

When an individual applies for a pilot position with a Part 121 or 135 air carrier, 49 USC §44703(h)-(j), the Pilot Records Improvement Act ("PRIA"), requires that air carrier to make certain requests to the FAA and the pilot's other employers for records relating to the pilot. In addition to certain specific information air carriers must request from the FAA, air carriers and employers, PRIA also includes a catch-all provision requiring a pilot's other employers (both past and present) to furnish other records maintained by the air carrier or person 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.

Advisory Circular (AC) 120-68F provides guidance to air carriers and other employers for compliance with PRIA by identifying and explaining the information that must be disclosed in response to a PRIA request. Although AC 120-68F provides examples and methods of compliance, not all situations and circumstances are addressed. As a result, sometimes situations arise that are not specifically addressed in AC 120-68F, leaving the pilot or his/her employer(s) with questions regarding PRIA compliance.

Fortunately, an individual in this situation who has a question regarding interpretation of PRIA, or any of the other aviation regulations, and who doesn't feel he or she has received a consistent or correct answer from the FAA (e.g. the local FSDO or FAA aviation inspectors), may submit a request to the FAA's Office of the Chief Counsel for an official interpretation that will be binding upon all of the FAA's inspectors and FSDOs. A pilot did just that recently when he asked the FAA's Office of Chief Counsel for a legal interpretation regarding PRIA compliance by one of his former employers.

In his request, the pilot asked for an interpretation regarding the meaning of PRIA's reference to "other records pertaining to the individual's performance as a pilot" and also the meaning of the phrase "other records...concerning...professional competence." The pilot was specifically concerned about disciplinary records from two events, as well as his employment termination, and whether those records would have to be disclosed in response to a PRIA request.

In the first disciplinary event, the pilot received a written warning for failing to follow company procedure when he incorrectly entered Hobbs time in place of airframe time in an aircraft logbook entry after the pilot discovered a discrepancy during a flight. This error delayed the aircraft's return to service. The second disciplinary event involved the pilot's operation of one of his employer's aircraft to a public relations event on behalf of the employer where the employer claimed the pilot did not have permission to attend the event in the its aircraft and on its behalf. The pilot received a written warning for this event based upon his alleged insubordination and failure to follow company procedures. Although the pilot disputed the merits of each disciplinary action, for purposes of the pilot's request the Office of Chief Counsel treated the information in the employer's disciplinary records as true.

Records Related to the Pilot's Performance

Based upon the pilot's interpretation of the meanings of in PRIA terms as applied to the facts of each disciplinary event, the pilot contended that the records from the disciplinary actions in the examples he provided were unrelated to the pilot's performance of aeronautical duties and thus did not have to be disclosed under PRIA. The FAA partially agreed.

In its September 12, 2014 Legal Interpretation, the Chief Counsel initially determined that records related to a pilot's performance include records of an activity or event that is related to his or her completion of the core duties and responsibilities of a pilot, whether assigned by the employer or established by the FAA, to safely operate aircraft. This entails more than just records relating to events while the pilot is seated at the controls of an aircraft. It also includes records in relation to the pilot's compliance with his employer's established procedures during all aspects of aircraft operations, including occurring during ground pre-flight or post-flight, as well as those records relating to the pilot's duty to ensure the safety of crewmembers, passengers, cargo, and the aircraft.

The Chief Counsel further explained that

[r]ecords required to be reported would include records of any relevant disciplinary action as a result of any incident or event that occurs in an operation under any part of title 14 CFR, provided the operation is conducted by a pilot as part of the pilot's duties for that employer. All disciplinary records meeting this definition must be reported in accordance with the statutory requirements. However, records of disciplinary action arising out of the pilot's noncompliance with company policies unrelated to safe aircraft operations (e.g. attendance, company dress codes and other morality or behavior-based policies) are not the type contemplated by PRIA.

Applying this interpretation of the phrase "a pilot's performance", the Chief Counsel concluded the pilot's operation of the aircraft to a public relations event without the employer's permission did not need to be disclosed in response to a PRIA request. The Chief Counsel observed that

the crux of the pilot's dispute with the employer appears to be whether the pilot, in fact, had permission to attend the public relations event, not whether the pilot's actions indicated an error in judgment or performance during any part of the operation of the aircraft for purposes of the public relations event attended.

However, with respect to the records relating to the incorrect maintenance log entry, the Chief Counsel determined those records were subject to disclosure because the event "indicates the pilot failed to comply with post-flight procedures related to the condition of the aircraft for continued flight."

Records Concerning the Pilot's Professional Competence

Turning its attention to the pilot's request for an interpretation of the meaning of the phrase "professional competence", the Chief Counsel stated

[a]s this term is used in PRIA and as it relates to the federal aviation regulations applicable to the aircraft pilot profession, the competency of a pilot to serve as a flightcrew member is dependent upon the sufficiency of the individual's knowledge, skills, judgment and flight experience. In addition, the competency of a pilot is dependent upon the individual's demonstration of compliance with the applicable operating standards.

Thus, "professional competence" is considered merely an extension of PRIA's requirement to provide pilot training, qualifications and performance records. As a result, the phrase did not change the Chief Counsel's conclusion that records related to the public relations flight were not subject to disclosure while records relating to the maintenance logbook error did need to be disclosed.

Records Regarding the Pilot's Termination of Employment

Finally, the Chief Counsel addressed the records relating to the pilot's termination of employment by confirming that

records related to 'any release from employment or resignation, termination, or disqualification with respect to employment' must be furnished in response to a PRIA request if that record 'pertain[s] to the individual's performance as a pilot'...and that record dates within the five years preceding the PRIA request.

Since the pilot had resigned from his position in order to attend school full time, the Chief Counsel concluded that any record related to the pilot's termination of employment was not subject to disclosure under PRIA because it did not relate to "pilot performance."


Not surprisingly, sometimes the meaning of terms or phrases in an aviation regulation or statute are not as precise as we need in order to apply the terms or phrases to actual factual circumstances. That is certainly the case with respect to PRIA. And although AC 120-68F certainly provides examples to assist with PRIA compliance, that isn't always enough. In those situations, it is nice to be able to get the FAA's opinion of how those terms or phrases may apply.

Do You Have To Accept A Clearance If It Will Result In You Violating The Regulations?

This situation was presented to the FAA's Office of Chief Counsel in a request for a legal interpretation. Specifically, an individual requested an interpretation of the phrase "necessary for takeoff or landing" as used in 14 C.F.R. § 135.183(b). Apparently the individual operated single-engine Cessna Caravan aircraft in Part 135 operations between the Bahamas and Fort Lauderdale, Florida, along the FAA's published DEKAL TWO arrival route. When the flight reached the DEKAL fix, 30 miles from shore, air traffic control (ATC) usually instructed the flight to descend to 4,000 feet to separate turboprop traffic from jet traffic.

In response, the Office of Chief Counsel issued a Legal Interpretation which initially observed that Section 135.183 prohibits a single engine aircraft, when carrying passengers, from operating over water unless the aircraft is within power-off gliding distance from land, or when it is necessary for take off or landing. It also noted that to determine whether an altitude is "necessary for takeoff or landing" you have to look at "whether that portion of the flight is necessary to permit the pilot to transition between the surface and the en route or pattern altitude in connection with a takeoff or landing."

Applying the facts it was provided, the FAA explained that descent to 4,000 feet at the DEKAL fix would not be necessary for landing because the altitude was assigned for traffic separation, and the Caravan's performance would not require it to be at the assigned altitude for approach into the destination airport. In response to the individual's concern regarding compliance with 14 C.F.R. § 91.123 (requiring compliance with ATC clearances and instructions), the Interpretation cited Chapter 4-4-1(a) of the Aeronautical Information Manual for the proposition that "an ATC clearance 'is not authorization for a pilot to deviate from any rule, regulation, or minimum altitude.'"

It then concluded that, rather than accepting a clearance that would put the Caravan beyond power-off glide distance from shore, and violate Section 135.183, "the operator would be required to select another route or request a different clearance in order to maintain an altitude that keeps the aircraft within power off glide distance from shore."

This Interpretation is a good reminder that the pilot is ultimately responsible for compliance with the regulations applicable to his or her flight. Yes, you need to comply with ATC instructions to avoid violating Section 91.123. However, if ATC's instructions would result in violation(s) of the regulation(s), the pilot has a duty to reject those instructions. Not an easy decision, I know. Hopefully you won't find yourself in that position.

Logging Time And Payment Of Expenses When You Are Flying With A Safety Pilot

In a recent Legal Interpretation, the FAA Office of the Chief Counsel responded to questions regarding the logging of pilot in command ("PIC") time and distribution of expenses when a safety pilot is used. The scenario presented involved two pilots, A and B, planning a Part 91 local VFR flight for the purpose of Pilot A satisfying instrument time or instrument currency requirements. Pilot A secured the aircraft (type certificated for one pilot crewmember), and Pilot B agreed to serve as a safety pilot during the portion of the flight that required a safety pilot. Both pilots held private pilot certificates and were qualified to act as PIC.

In addressing the logging of flight time, the Interpretation observed that FAR 91.109(b) prohibits a pilot from operating in simulated instrument flight without a safety pilot. Thus, during the simulated instrument portions of the flight Pilot B was a required crewmember. As a result, the Interpretation stated that Pilot B could log second in command ("SIC") time for the time in which Pilot A acted as PIC and was the sole manipulator of the controls during simulated instrument flight. It also noted that since Pilot A was acting as PIC during the simulated instrument portion of the flight, Pilot B would not be able to log PIC time under FAR 61.51(e). However, if Pilot B agreed to act as PIC for the simulated instrument portion of the flight, the Interpretation concludes "then Pilot B could log that time as PIC time under FAR 61.51 (e)(1)(iii) because he is acting as PIC of an aircraft for which more than one pilot is required under the regulation under which the flight is being conducted." Additionally, as the sole manipulator of the controls of the aircraft for which Pilot A is rated, Pilot A would also be permitted to log the time as PIC time under FAR 61.51(e)(1)(i).

With respect to the question of whether Pilot B would be obligated to share expenses for the flight, the Interpretation initially observed that FAR 61.113(c) prohibits a private pilot acting as pilot in command from paying less than his or her pro rata share of the operating expenses of a flight with passengers. In the scenario presented, Pilots A and B were both required crewmembers during the portion of the flight that is conducted in simulated instrument conditions. As a result, the Interpretation concludes that if Pilot B acts as PIC only during the simulated instrument portions of the flight, Pilot B would not be required to pay a pro-rata share of the operating expense of the flight under FAR 61.113(c) since Pilot B would not be acting as PIC on a flight carrying passengers.

This Interpretation highlights the FAA's distinction between "acting" as PIC for a flight versus logging time as PIC by virtue of being the sole manipulator of the controls of the aircraft. As you can see, this distinction has a direct bearing on how a safety pilot, or any other pilot for that matter, logs flight time. Understanding this distinction will help ensure that you are logging your flight time correctly whether you are acting as, or flying with, a safety pilot.

FAA Defines "In Furtherance Of Business" Limitation On Operations By A Sport Pilot

In a recent Legal Interpretation, the FAA Office of the Chief Counsel responded to a request for a definition of what it means to be "in furtherance of a business" in the context of the limitation upon sport pilot privileges. As you may know, FAR § 61.315(c)(3) prohibits an individual exercising sport pilot privileges from acting as pilot in command of a light-sport aircraft when he or she is (1) carrying a passenger or property for compensation or hire, (2) operating for compensation or hire, or (3) operating in the furtherance of business.

The Interpretation notes that, rather than actually defining "sport and recreational flying", the intended limitation on sport pilot operations, it made more sense to define the types of operations that were not permitted for a sport pilot. This was "intended to better clarify [the FAA's] original intent and align the privileges and limitations of a sport pilot certificate with those of a recreational pilot certificate found in FAR §§ 61.101(e)(3) through (5) (prohibiting a recreational pilot from acting as pilot in command of an aircraft "in furtherance of a business.")

The FAA also wanted to distinguish the sport and recreational pilot privileges and limitations from those of private pilots under FAR § 61.113(b) (permitting a private pilot to act as pilot in command of an aircraft for compensation or hire in connection with any business or employment if the flight is only incidental to that business or employment and the aircraft does not carry passengers or property for compensation or hire.) The Interpretation observes that "[f]lights typically permitted to be carried out by a private pilot under the provisions of § 61.113(b) would not be permitted to be engaged in by a person exercising sport pilot privileges."

To further explain this limitation, the Interpretation notes that "flights in which transportation is provided for a business purpose, 'even if incidental to your employment or the business you intend to conduct, and not required by your business or employment would be considered in furtherance of a business.'" Thus, if a flight is conducted for a business purpose, even if it is only incidental to that purpose, then the flight would be considered to be "in furtherance of a business" and could not be conducted by a sport pilot.

Finally, it is important to note that "the restriction on the use of a light-sport aircraft in furtherance of a business is not based on the certification of the aircraft being used but rather on the certification of the airman operating the aircraft." As a result, light-sport aircraft may be used in furtherance of a business etc. provided the flights are operated by an airman with a private pilot or higher certificate.

Answers To Aircraft Dry-Lease Questions

In an August 11, 2011 Legal Interpretation, the FAA discussed regulation of aircraft wet and dry leases. Under a dry lease of an aircraft the lessor provides the aircraft and the lessee supplies his or her own flight crew, retains operational control of the flight and may operate under FAR Part 91. Under a wet lease, the lessor provides both the aircraft and the crew and retains operational control of the flight, but the lessor is usually required to hold an operating certificate because the FAA considers it to be providing air transportation.

According to the Interpretation, "[a] key consideration in differentiating a dry lease from a wet lease is whether the aircraft and flight crew are obtained separately, or provided together as a package." For example, if the evidence shows that the parties are "acting in concert" to furnish an aircraft and crew, then the FAA would likely consider the arrangement a wet lease. However, whether an aircraft lease is a dry or wet lease is determined on a case-by-case basis.

The Interpretation goes on to state that the regulations do not limit the number of lessees that may lease an aircraft, nor do they establish hourly requirements for aircraft leases. Those issues are "contractual terms negotiated by the owner and the lessee." Additionally, a lessee may hire the same management company that is used by the owner, provided that the other facts and circumstances do not show that the arrangement is "merely a wet lease in disguise."

The interpretation also notes that a lessee may contract with the same flight crew that is contracted for by the aircraft owner. But again, only so long as the other evidence does not suggest that the arrangement is really a wet lease. The Interpretation states "[g]enerally the FAA would consider an arrangement where a person leases an aircraft from its owner, and secures the flight crew from another source to be a dry lease. If the aircraft and flight crew are provided as a package, the lease would be a wet-lease."

Finally, the Interpretation indicates that the FAA "does not have specific requirements regarding collection of payment for the flight crew. However, the method of payment may serve as indicia of whether the parties have entered into a wet- or dry-lease agreement."

If you enter into aircraft lease arrangements, you should become familiar with this Interpretation. However, the Interpretation only provides a general outline of how the FAA will review such arrangements. Since the "devil is in the detail," having an aviation attorney review the particular circumstances for each situation and then draft or review an appropriate written lease agreement can protect aircraft lessors, aircraft lessees, and the pilots who operate the aircraft, from FAA enforcement.

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