On Sun, 10 Oct 2004 09:32:24 -0400, Matt Whiting
wrote in ::


If it was close enough to require a go-around, that seems close enough
to me to warrant a report.

I would have to agree if separation were lost.

Here is a report from the AOPA web site with information on the FAA's
Runway Incursion Immunity policy for pilots. I'm not sure it applies
to controllers.


Pilot Counsel

FAA immunity for runway incursions

By John S. Yodice (From AOPA Pilot, June 2000.)

It seems that we can expect more uncomfortable one-on-one discussions
between pilots and FAA inspectors about possible regulatory
violations. We previously reported on the relatively new FAA
Streamlined Administrative Action Process (SAAP) program now in effect
(see "Pilot Counsel: FAA’s Ticket Program," September 1999 Pilot) and
offered some legal guidance to pilots. Now pilots may need some legal
guidance about participating in another new FAA program, the Runway
Incursion Information and Evaluation Program (RIIEP).

The title of the program tells us the purpose of the program—to gather
and evaluate information on runway incursions. It was announced on
March 19, 2000, and runs through March 19, 2001. The announcement
encourages pilots (and others) to give information to the FAA that
could help the agency get at the root causes of runway incursions.
Under the program, FAA field inspectors will seek to interview pilots
involved in such incidents, either in person or by telephone. In
exchange, the FAA offers cooperating pilots a limited immunity against
FAA enforcement.

No pilot needs to be convinced that the threat of a collision between
an aircraft taking off or landing and another aircraft, or vehicle, or
person, or other object on the runway is a serious safety problem.
According to the FAA, there has been an increase in such incidents in
recent years. The FAA says that pilot deviations are the leading cause
of runway incursions, increasing by 38 percent from 1997 to 1998. Not
surprisingly, the runway incursions most likely to cause accidents
generally occur at complex, high-volume airports.

The FAA usually has little problem in learning about runway incursions
and the pilots involved, since they happen at airports with control
towers. And the FAA has little trouble finding some infraction of the
federal aviation regulations that it can charge against one or more of
the pilots involved. The usual procedure in the past has been for an
FAA inspector to open an investigation when a controller reports a
runway incursion. An investigation often resulted in a suspension of
the certificate of one or more of the pilots, or less drastically, an
administrative action in the form of a warning notice or letter of
correction sent to the pilots.

This new program presents a dilemma for pilots. We certainly want to
cooperate with the FAA to solve the problem of runway incursions; but
in the process we don’t want to be cooperating ourselves into a
suspension of our pilot certificates or a black mark on our FAA
records. In the program, the FAA attempts to resolve this dilemma for
pilots by giving assurances that the usual enforcement action will not
be taken.

The FAA assurances take two forms. First, if a pilot cooperates,
subject to certain qualifications, "the FAA ordinarily does not expect
to take punitive legal enforcement action." Second, the FAA "does not
expect to use information provided by airmen during interviews
conducted by FAA inspectors under the RIIEP in any FAA punitive legal
enforcement action," according to the program.

Unfortunately, the assurances don’t seem to go far enough, using
qualifying words such as ordinarily and does not expect. They don’t
provide as much protection for the pilot as does the Aviation Safety
Reporting System, which is the time-honored method for anonymously and
confidentially getting safety information to the FAA in exchange for a
waiver of a disciplinary action.

So, what should a pilot do who gets a call from the tower or some FAA
inspector wanting to talk about an incident that is, or seems to be, a
"runway incursion"? In making a decision whether to cooperate, a pilot
needs to know his or her legal rights and the specifics of the
assurances that the FAA is offering. As we will see, the answer to
this question is complicated by the fact that a great deal of
discretion is given to the individual inspector in interpreting these
assurances.

To their credit, most pilots instinctively want to cooperate with the
FAA. That instinct is a good one. But pilots should understand that
participation in the program is strictly voluntary. A pilot has no
legal obligation to respond to an FAA inspector’s questions on a
possible runway incursion incident. Yet, answering the inspector’s
questions could cause the inspector to conclude that the program’s
immunity does not apply, or it could open the door to other
incriminating facts and circumstances.

Here is some general guidance. If there is anything aggravated about
the incident, it is probably best not to participate. For example, if
the circumstances are such that the FAA could allege that the
infraction was intentional (I don’t know of a runway incursion that
was intentional, but that is within the discretion of the inspector to
determine), the limited immunity would not apply. Or if there was an
accident as a result of the incursion, the immunity aspect of the
program would not apply. A pilot could be facing an enforcement
action to suspend or revoke the pilot certificate. The pilot should
seek some legal help before talking to the FAA, and before completing
an NTSB accident report.

The question becomes a muddy one if the incident is clearly
unintentional but does raise a question about the pilot’s
qualifications—for example, a runway incursion under circumstances
that suggest to the FAA that the pilot does not understand the air
traffic rules that govern an aircraft operating at an airport with a
control tower. The FAA will then ask the pilot to consent to a
reexamination or suffer a suspension of the pilot certificate. The
program says: "If alleged violation(s) resulting from the runway
incursion or the circumstances surrounding the runway incursion
demonstrate, or raise a question of, a lack of qualification of the
airman, then the FAA will proceed with appropriate remedial action,
which might include reexamination and/or certificate revocation or
certificate suspension pending reexamination."

If the incursion was unintentional, and the pilot does understand the
rules but just became confused or disoriented—which should be the case
in the majority of such events involving a pilot deviation—then
participation in the program is probably in order. That is a situation
where the FAA should be able to benefit most from an interview with
the pilot. We should expect that a reasonable inspector would take no
enforcement or administrative action against a cooperating pilot.
However, pilots should understand that even in such a situation, the
inspector has the discretion under the program of taking an
administrative action against the pilot. An administrative action does
not suspend or revoke a pilot certificate, but it will take the form
of a warning notice or letter of correction, which will be a matter of
record against the pilot for two years.

In any event, whether a pilot cooperates in the RIIEP or not, there
would seem to be no good reason not to file a NASA Safety Report (do
not report an accident or criminal activity, however) on NASA ARC Form
277 and get whatever immunity, anonymity, and confidentiality that is
available through that program.


Posted Friday, May 19, 2000 11:53:26 AM
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