Greg Reigel - Page 10 Aviation Articles

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.

FAA Takes a More Sensible Approach to First-Time, Inadvertent TFR Violations

The FAA recently amended its enforcement guidelines for dealing with airmen who violate temporary flight restriction ("TFR") airspace. In the past, when the FAA alleged that an airman violated a TFR, and the incident was a first-time, inadvertent violation by the airman, that airman would receive a Notice of Proposed Certificate Action ("Notice") proposing suspension of his or her airman certificate for 30 days for violation of a variety of regulations. This was the FAA's "shoot from the hip", no questions asked approach. And once the Notice was issued, the FAA conceded very little, if anything, from that 30 day suspension.

Now, however, it appears the FAA may have recognized that this approach wasn't necessarily the best way of dealing with these types of violations. In June of this year, the FAA amended Order 2150.3(b), the FAA's compliance and enforcement program, to change its approach to dealing with first-time, inadvertent TFR violators. According to the FAA, it is modifying its policy to provide more flexibility in dealing with TFR violators with the intent of reducing "the number of violations occurring in security airspace by using remedial training in appropriate circumstances to prevent repeated inadvertent violations." I'm not sure why it took the FAA this long to figure out that remedial training might be a better alternative to a suspension, but better late than never, I guess.

Under the amended guidelines, the FAA will apply the following sanction policy to TFR violations:

  1. A single, first-time, inadvertent violation will result in a 30 day suspension EXCEPT in circumstances involving:

    1. Inadvertent, first-time violations resulting from aircraft intruding one mile or less into the security airspace and then turning and exiting directly when there are no resulting complications for air traffic control or other aircraft; or

    2. Inadvertent, first time violations resulting from aircraft briefly (two minutes or less) squawking a 1200 code or failing to squawk an assigned discrete code, in security airspace that requires the aircraft to squawk a discrete code when there are no resulting complications for air traffic control or other aircraft.

    3. In situations 1(a) and (b), the FAA will use remedial training, assuming the airman has no prior history of violations. This means the airman would receive a warning letter, remedial training and the airman would not have a finding of violation placed in his or her airman record. (In my opinion, a more appropriate response to this type of situation rather than preventing an airman from staying current and competent by suspending his or her airman certificate, as was the case in the past.)
  2. A new inadvertent violation and a history of 1 prior inadvertent TFR violation will result in a 45 to 90 day suspension of the airman's certificate.

  3. A new inadvertent violation and a history of 2 prior inadvertent TFR violations will result in a 90 to 150 day suspension of the airman's certificate.

  4. A new inadvertent violation and a history of 3 or more inadvertent TFR violations will result in revocation of the airman's certificate.

  5. If the facts and circumstances surrounding the TFR violation call into question the qualifications of the airman, the FAA may also issue the airman a request for re-examination under 49 U.S.C. § 44709 (a "709 Ride").

  6. Intentional TFR violations or "aggravated" violations (which isn't defined or explained in the amended policy) will result in revocation of the airman's certificate.

Unfortunately, informal counseling, whether oral or written, is not a permitted alternative for the FAA to deal with TFR violations. However, at least now the FAA has the option of remedial training to educate, rather than punish, inadvertent violators. Of course, this amended policy begs the question of what constitutes an "inadvertent" violation. Depending upon the FAA's interpretation of "inadvertent", which in the past hasn't always been the most reasonable, the amended policy may be for naught.

But the amended policy definitely appears to be a step in the right direction. Hopefully, this more enlightened approach, and the voice of reason, will prevail in the future. In any event, airmen should continue to check for NOTAMS, understand the scope of any TFR NOTAMS issued for their route of flight, obtain appropriate flight service briefings and updates, and either avoid TFRs or comply with the applicable requirements for operation within the TFR.

Fly smart and stay safe.

Can You Barter For Aircraft Rental And Expenses? FAA Says "Yes"

As you may know, the FAA defines compensation very broadly. Compensation may include not only the exchange of money, but also the exchange of value. With this expansive view of compensation as a backdrop, the FAA was recently asked whether it was permissible to barter services in exchange for (1) a private pilot's pro-rata share of operating expenses under 14 C.F.R. § 61.113(c) and (2) rental of an aircraft.

In the first scenario presented to the FAA, a private pilot (Pilot A) who is also in the business of aircraft detailing desires to barter aircraft detailing services in exchange for Pilot A's pro-rata share of expenses on common-purpose, recreational flights in an aircraft owned by Pilot B, also a private pilot, and with Pilots A and B as the sole occupants of the aircraft during the flights. The common-purpose for the flights would be the building of pilot time as allowed by applicable regulations.

For purposes of the request, the FAA was asked to assume that the aircraft's type certificate does not require operation by two crewmembers, the flights are operated under 14 C.F.R. Part 91, and during the common-purpose flights one pilot is acting as pilot in command and the other pilot is strictly a passenger and not a required crewmember.

Pilot A would perform aircraft detailing services for Pilot B's aircraft. Pilot A and B would determine the fair market value of the aircraft detailing service and that amount would applied to Pilot A's pro-rata share of the operating expenses of the flights shared by Pilots A and B.

Based upon this first scenario, the FAA answered the following questions:

Question 1: Does Pilot A's bartering of services in exchange for Pilot A's pro-rata share of the operating expenses of a common-purpose flight with Pilot B comply with 14 C.F.R. 61.113(c)?

Answer: Yes, as long as the amount of the bartered services did not exceed Pilot A's pro-rata share of the expenses, otherwise Pilot B would be in violation of § 61.113(c).

Question 2: May Pilots A and B agree upon the fair market value of the aircraft detailing services to be bartered against Pilot A's pro-rata share of the operating expenses for the common-purpose flight?

Answer: Yes, the two parties to the transaction would need to reach an agreement with respect to the fair market value and, although FAA regulations do not require a written record of the agreement, they could certainly make such a record. (I would certainly recommend that the parties have a written agreement executed at the time of the transaction, rather than trying to later come up with documentation to prove the agreement as to fair market value.)

Question 3: May the fair market value of the aircraft detailing services be applied prospectively to Pilot A's pro-rata share of operating expenses for future/successive common-purpose flights with Pilot B?

Answer: Yes.

Question 4: What documentation, if any, would Pilots A and B need to evidence their compliance with 14 C.F.R. § 61.113(c) in this scenario?

Answer: None. The FAA does not require any documentation. (However, having appropriate documentation will definitely help in proving compliance.)

In the second scenario provided to the FAA, a private pilot (Pilot A) who is also in the business of aircraft detailing desires to barter aircraft detailing services in exchange for rental of an aircraft owned by Pilot B for personal flights operated under 14 C.F.R. Part 91 and in which Pilot A would be the sole occupant. The FAA was asked to assume for purposes of the request that the aircraft being rented is a type certificated aircraft with a standard airworthiness certificate and is not subject to the Truth-in-Leasing requirements of 14 C.F.R. § 91.23.

Question 5: Does Pilot A's bartering of services in exchange for rental of Pilot B's aircraft violate any regulations administered by the Federal Aviation Administration?

Answer: It does not violate any FAA regulations.

Question 6: May Pilot A and B agree upon the fair market value of the aircraft detailing services to be bartered against Pilot A's rental of Pilot B's aircraft?

Answer: Yes, as long as the flight is not for compensation or hire.

Question 7: May the fair market value of the bartered aircraft detailing services be applied prospectively to Pilot A's future/successive rental of Pilot B's aircraft?

Answer: Yes, as long as the flight is not for compensation or hire.

Question 8: What documentation, if any, would Pilots A and B need to evidence the barter arrangement under this scenario in order to comply with any applicable regulations?

Answer: FAA regulations do not require documentation.

Although the FAA's answers were short and sweet, without any in-depth analysis of the regulations' application to the factual scenarios, at least the FAA has provided some guidance regarding the viability of barter transactions in connection with aircraft use, rental and expenses. As with most situations when dealing with the FAA, having a paper trail to document your compliance is a good idea. Thus, if you are going to enter into a barter arrangement, make sure you have something in writing that not only explains the barter transaction but also substantiates the fair market values upon which the barter transaction is based.

Thanks to the FAA's guidance, aircraft owners and pilots now have another option for aircraft use and rental. And that's a good thing.

Unknown Or Inadvertent Ingestion: An Unconvincing Affirmative Defense To A Positive Drug Test Result

If an airman tests positive for drug metabolites on a drug test but he or she didn't take the drugs, what can the airman do? Well, arguing that he or she somehow unknowingly or inadvertently ingested the drugs isn't going to save the day. A recent decision by the National Transportation Safety Board ("NTSB") rejected an airman's "unknowing ingestion" affirmative defense in that very situation.

In Administrator v. Hermance the airman submitted to a random drug test which indicated that the airman tested positive for cocaine metabolites. As in almost every case, the FAA revoked all of the airman's certificates based upon the positive drug test. The airman then appealed the revocation to the NTSB.

Prior to a hearing, the FAA moved for summary judgment arguing that the positive drug test and the airman's admission that the test was positive presented a prima facie case that the airman had violated the applicable drug testing and medical qualification regulations. The ALJ agreed that the FAA had proven its case, but the ALJ ordered a hearing to allow the airman to present evidence regarding his affirmative defenses, one of which was that he had unknowingly ingested the cocaine.

At the hearing before the NTSB administrative law judge ("ALJ"), the airman was adamant that he did not do drugs and had not ingested cocaine. He even paid several visits to his physician who was unable to determine how the cocaine metabolites ended up in the airman's urine. The airman's wife and several other witnesses also testified that the airman did not do drugs.

At the end of the hearing, the ALJ ruled that the airman's claim that he unknowingly ingested the cocaine was not a "reasonable medical explanation" for a positive drug test under DOT regulations. The ALJ determined that neither the airman nor any of his witnesses offered an explanation or reasonable theory for how the airman's tested urine specimen contained cocaine metabolites. In the absence of the necessary proof, the ALJ found the airman failed to satisfy his burden of proving his affirmative defense of unknown ingestion. As a result, the ALF affirmed the FAA's revocation order.

On appeal to the full Board, the airman again argued that he had proven his affirmative defense of unknown ingestion which explained and excused the positive drug test result. The Board initially observed that the airman had the burden of proving not only that unknowing ingestion was a legally justifiable excuse but also that he factually proved that affirmative defense.

The Board then cited 49 C.F.R. § 40.151(d), which specifically and categorically rejects the defense of unknown ingestion:

For example, an employee may tell [medical review officers (MROs)] that someone slipped amphetamines into her drink at a party [or] that she unknowingly ingested a marijuana brownie....MROs are unlikely to be able to verify the facts of such passive or unknowing ingestion stories. Even if true, such stories do not present a legitimate medical explanation. Consequently, [MROs] must not declare a test as negative based on an explanation of this kind.

The Board also observed that its precedent has consistently rejected unknown ingestion as a legitimate medical explanation for a positive drug test result.

However, even though the unknown ingestion affirmative defense was previously rejected, the Board concluded that the ALJ's granting a hearing to the airman regarding the affirmative defense was appropriate because it allowed the airman a full opportunity to offer evidence to support a legitimate medical explanation, if one existed. Unfortunately for the airman, the Board affirmed the ALJ's determination that the airman's evidence did not suffice to establish that he never ingested cocaine or that a legitimate medical explanation existed for the presence of the cocaine metabolites in his urine.

Thus, the affirmative defense of "unknown ingestion" or "inadvertent ingestion" will not, without more, save an airman from a positive drug test result. Fortunately, the airman should have an opportunity to prove some other legitimate medical explanation for the positive result. However, the airman will have the burden of proof; a burden that, unfortunately, is often not easy to meet. But at least it is a chance.

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.

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