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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.