Pilot Counsel:

FAA suspends its expunction policy

April 1, 2011

John YodiceIn a letter of February 4, 2011, the FAA chief counsel has advised pilots and other members of the aviation community that the FAA is suspending its policy of erasing old, stale violation histories from its records. At first blush this may not seem significant to pilots who have never been in trouble with the FAA. That’s most of us. But, it is significant to all of us. From long experience, I can tell you that most of the pilots who have faced FAA enforcement have been law-abiding and safety-conscious pilots. They are pilots who have been involved in an inadvertent, first-time violation that did not seriously compromise safety. They stumble because the FAA regulations are so numerous and so pervasive that any pilot with significant experience can get caught. It is by mere chance (or the limitation of FAA resources or the many reasonable FAA inspectors) that most are not. So, despite our best efforts, any one of us can get caught. And an old violation history, publicly available to anyone, can be unnecessarily problematic for us. The loss of the FAA expunction policy is important to us all.

“Expunction” is a high-sounding word that means no more than “to erase, to rub out.” The expunction policy was a direct result of a series of recommendations made to the FAA by an industry group spearheaded by AOPA. That was almost two decades ago. The FAA reacted to the recommendations positively by conducting a “System Safety and Efficiency Review” of its compliance and enforcement program. That led to a number of positive changes, including expunction. (One change that has been particularly good for both the FAA and the pilot community is the remedial training program. Safety is more enhanced by having a pilot take additional training than by suspending his piloting privileges for a time with the concurrent loss of recent experience.) The expunction policy as announced in the Federal Register is that “in general, records of legal enforcement actions involving suspension of an airman certificate or a civil penalty against an individual will now [only] be maintained for five years; records of enforcement actions resulting in revocation of the airman certificate will be maintained indefinitely; and cases closed with no enforcement action will be expunged within 90 days….[unless] one or more other legal enforcement actions is pending against the same individual.”

Safety is more enhanced by having a pilot take additional training than by suspending his pilot privileges.

The suspension of this expunction policy now comes as a result of recent legislation passed by Congress and signed by the president that changes the Pilot Records Improvement Act (PRIA).You may recall that PRIA was enacted in 1996 at the urging of the NTSB resulting from the investigation of several accidents. In a 1988 investigation of a crash of a DC–9 airliner on takeoff from Denver, it was learned that the first officer of the flight had been fired by his previous employer because of unsatisfactory performance. A background check by the current employer failed to disclose that. There were at least two other investigations prompting NTSB recommendations. Then the one that really got things started was a 1994 accident at Raleigh-Durham International Airport. On an instrument approach in bad weather, an American Eagle flight crashed four miles short of the runway, killing 13 passengers and the two crewmembers. The investigation revealed that the pilot’s previous employer had forced him to quit because of poor piloting skills. American Eagle hired him four days later without knowing any of this. As a result, the PRIA legislation was enacted to require airlines to perform background checks on pilots before hiring them, including their enforcement records at the FAA. In the past, airlines would request information on pilots directly from their previous employers and from the FAA. Under this most recent legislation airlines are now required to request a pilot’s PRIA information from a pilot record database to be created by the FAA. Now the FAA must keep each pilot’s files in the database until his or her death. That obviously conflicts with the expunction policy. As a result, the FAA suspended expunging the records. The last expunction took place November 1, 2010. Administrative actions (warning notices or letters of correction, including successful remedial training) will continue to be expunged after two years.

There is still a crack in the door, thanks to the FAA chief counsel. He says, “The full effect of the act’s requirements on the expunction policy has not yet been determined. When we make this determination we will amend the policy accordingly and publish a notice in the Federal Register.” There is hope that the chief counsel’s ultimate interpretation of the Act will restore the expunction policy. At the least, a new policy should be restricted to pilot applicants for an airline job, the apparent intent of the new law. But even for airline-pilot applicants, there comes a time when a violation history of a certificate suspension or a civil penalty loses its safety significance (revocations were never intended to be expunged). For now, the expunction policy is suspended for all pilots.

Legal counselor John S. Yodice flies a Cessna 310 based in Frederick, Maryland (FDK).