AOPA's position on Anchorage ATCT Letter to Airmen No. 98-01

January 18, 1999

Mr. William E. Chord, Air Traffic Manager
Federal Aviation Administration, Anchorage ATCT
Anchorage International Airport
5200 International Airport Road
Anchorage, AK 99502

Re: Anchorage ATCT Letter to Airmen No. 98-01, Pilot Deviation Processing test program, effective January 1, 1999

Dear Mr. Chord:

The Aircraft Owners and Pilots Association (AOPA), representing the aviation interests of more than 340,000 pilots and aircraft owners, has become aware of the test program outlined in the Anchorage ATCT letter to Airmen No. 98-01 for processing pilot deviations. In this letter, the Federal Aviation Administration (FAA) expresses the desire to address safety concerns associated with pilot deviations immediately and successfully through the use of positive communication between the airman and FAA air traffic personnel in lieu of enforcement. This is evidenced in the stated goal of the program being designed to "foster cooperation between controllers and users, while improving aviation safety."

AOPA and its membership have long shared and promoted this goal and on its face, this program appears to benefit the airman and the FAA. Airmen in Alaska benefit because they avoid an unnecessary mark on their airman record and they receive counseling designed to prevent future deviations. The FAA benefits because the FAA achieves future compliance which over the long term, will foster aviation safety. However, because the program description is vague, AOPA may be unable to fully endorse the program without more information about how the program will work and how it will be applied.

AOPA staff have reviewed the letter issued by the Anchorage ATCT and have spoken with a number of FAA personnel in an effort to fully understand how this program will affect AOPA members flying in the Anchorage area. Several provisions of the test program that are mentioned in the Letter to Airmen raised some questions over the processes and policies that will be used by the FAA to implement this test program. What became apparent to us during this research was that the FAA appears to be well intentioned in its desires for this program. However, the program, as presented in the Letter to Airmen, raises some potential legal and enforcement questions from the airman�s perspective that have not been addressed in the FAA�s public communications.

We believe that additional internal and external written guidance material will need to be developed. In this regard, AOPA points out that identifying the "rules" of the program will allow for greater participation in the program which will also provide for better results by which to measure the success of the program and possible expansion of its application.

As we understand it, the test program was devised by the Anchorage air traffic facilities to more efficiently address pilot deviations occurring in the Anchorage area. The test program allows Anchorage controllers to discuss an infraction with the airman involved in order to achieve future compliance. Under the program, this could be accomplished without having to go through a legal process that took time, stigmatized the airman, and may not have helped him or her to understand why the deviation may have occurred and how to avoid a similar situation in the future. The ATCT letter that was issued on December 1, 1998, puts into writing a very rough outline of the program that was implemented on January 1, 1999, and which is expected to stay in effect until December 31, 1999. The informal process contemplated by the letter is a process by which a deviation is identified; a counseling session occurs between air traffic personnel and the pilot, and a record of the procedure is informally kept by the FSDO. This informal process is intended to be used in lieu of the more cumbersome and sometimes, counterproductive legal or administrative enforcement process.

The Letter to Airmen states that the test program will apply to certain pilot deviations that occur in the Anchorage area. AOPA is concerned that the term "pilot deviation" is not specifically defined in the ATCT letter. The context of the letter, common aviation understanding, and verbal representations from the FSDO and ATCT suggest that pilot deviations are all deviations from flight restrictions given by ATC or a navigational aid such as altitude and heading clearances, and published approach or departure procedures. According to ATCT, qualifying incidents are ones that occur under the control of the Anchorage TRACON and Tower and the Merrill Tower, including operations at Anchorage, Merrill, and Elmendorf Air Force base. We believe that for the program to be successful, airmen in the Anchorage area need to fully understand what constitutes "pilot deviation" eligible under the program. Further, we believe that it should be stressed to Alaskan airmen that this informal process would not be available outside the Anchorage area.

There are several specific exceptions to the applicability of the program, and AOPA is unaware of any guidance that has been provided to ATCT about making the determination of qualification in the informal process. The Letter to Airmen specifically

exempts those deviations that are committed by Part 121 or 135 operators that involve a loss of ATC separation, or that demonstrate unsafe or reckless operation of aircraft.

Since the characterization of a given deviation may turn out to be subjective on the part of air traffic personnel, we believe it is important to identify how ATCT personnel will exercise their subjectivity.

According to the Anchorage FSDO, Flight Standards personnel will defer to ATCT's determination of eligibility under the program. In other words, if ATCT personnel make the determination that an operation was not reckless, but the FSDO would have made a different determination, the FSDO will not upgrade the action to a formal investigation. The FSDO maintains that they will only return a form to ATC and ask for a full enforcement package if they find that the airman has a history of violations, including legal enforcement action, administrative enforcement action, or prior participation in this test program. ATCT confirms that they expect any action handled informally to be upgraded if the FSDO subsequently discovers that an airman has such a history. Although ATCT will not take action to discover this history during the informal process, the airman needs to be aware of his or her enforcement history and should fully understand that it must be taken into account when deciding whether to participate in the program.

There is question about when and how the airman will know that ATCT intends to treat a deviation under the informal process. According to ATCT, if the airman is told to call the tower, it will be because they intend to handle the matter under this informal process. Otherwise, ATCT will not tell the airman to call the tower and the presumption will be that they are putting together a package of evidence of the deviation to forward to the FSDO. AOPA is uncomfortable with this approach because we have seen many circumstances when a controller requests that a pilot call the tower and legal enforcement action is in fact being sought. This seems to be a change in air traffic procedure that needs to be communicated both publicly and to the controllers in Anchorage. Otherwise, it is left to the airman to specifically inquire during the call to the tower as to whether the deviation is being handled under the informal process or as a formal enforcement action.

Under the Letter to Airmen, there is no indication of whether ATCT will advise the airman that the deviation is being handled under this test program. We believe that a procedure should be developed by which ATCT specifically notifies the airman that an informal process is being offered, that the informal process may dispose of the matter, that participation is voluntary, and that certain conditions may preclude the process from becoming the final action in the matter. ATCT needs to discuss this information with the airman when he or she calls the tower, and the airman will then have to decide whether to participate in the informal process. It will be very important for ATCT and the airman to fully appreciate the decision that must be made. In our view, it is critical that the airman knows and fully understands up front, what process is being used, what the outcome of that process may be, and what conditions may change the process from an informal to a formal one.

AOPA maintains that the timing of the informal process is not sufficiently described in the letter. The ATCT letter does state that an airman is to call the tower within six hours of the deviation, but does not state whether the airman will be advised of this deadline at the time of the deviation or what flexibility exists for an extension of that deadline should circumstances dictate. Also, it is unclear whether the airman may take some time to consider participation in the informal process, possibly to consult with an attorney or AOPA technical staff. On the surface, it appears that ATCT contemplates that the airman must decide to participate during that telephone call to the tower or lose the opportunity. Further, it is unclear when the counseling session must take place and whether the airman risks being taken out of the informal process if any of the deadlines are missed. If the deadlines are critical to eligibility in the informal process, the Alaskan airmen need to be made aware of them.

The danger that the airman faces during discussions with ATCT is one that AOPA counsels airman about constantly. When talking to FAA personnel, airmen want to be very careful not to make damaging admissions or give the FAA any other information that could be used against the airman to prove a violation of the regulations in a legal enforcement proceeding. The FAA must clarify how the information that the airman provides during the informal process, including during the initial call and during the counseling process, may be used.

If the parties agree to proceed with the informal process, there is question whether ATCT may still be able to change its mind about completing the process informally. In other words, can ATCT reverse itself at any time during this process? If ATCT retains the authority to stop the informal process at any time and forward an enforcement package to the FSDO, AOPA needs to know under what circumstances this may occur and how the information already gathered during the beginnings of the informal process will be used. For example, if ATCT conducts this informal process and it becomes obvious that the counseling will not contribute to achieving future compliance by the airman, it appears to us that ATCT may choose to put together an evidentiary enforcement package to forward to the FSDO. Presumably, this means that ATCT will continue to assess the situation throughout the process to determine if the informal process should be terminated and the more formal process initiated. If this is the case, communications during the informal process may be considerably chilled and AOPA would have little choice but to recommend that our members not participate in the program.

The ATCT Letter to Airmen 98-01 specifically states that "the documentation would remain in the pilot's file for two years and then be destroyed." This language suggests that a record of the informal process would be put in an airman's certification file and would serve as a mark on an airman's record, much like legal and administrative actions currently do. However, according to the Anchorage FSDO, the "documentation" (i.e., the form completed by ATCT) will only be kept in a file at the Anchorage FSDO, and that it will not be entered into or appear in the FAA's national database systems, such as EIS or ISIS or PTRS. Therefore, someone requesting an enforcement history on an airman from the FAA's Oklahoma City office will probably not receive this information. However, if someone asked the Anchorage FSDO for it, it would probably be releasable information under the Freedom of Information Act. Where the "pilot's file" is, will need to be determined, the releasability of this information will need to be understood, and the type of information recorded will need to be identified. Additionally, AOPA needs to understand whether the form memorializes statements made by the airman, or if the form essentially makes findings by the FAA. Whether available to the FAA and/or to the public, this kind of information may cause harm to the airman in the future.

If the FAA intends for this process to be informal and does not intend for it to reflect negatively on the airmen who participate in the program, then certain protections must be adopted. The informal process has the potential to serve as a black mark on the airman's record. In one circumstance, the harm is already set to occur--the FAA admits in the Letter to Airmen that it may use the information gathered during this program against the airman in the future by precluding additional counseling sessions.

One final observation is that the counseling session is set to occur between an airman and a controller. AOPA generally questions whether a controller is the proper counselor for this type of aircraft infraction. While we recognize that the Anchorage ATCT is somewhat unique with its relatively large complement of pilots on staff, generally an air traffic controller's job is to sequence and position aircraft. It is an FAA inspector's role to comment on how an airman operates an aircraft, from a piloting standpoint. However, under this program, it is the controller who will be counseling the airman on how to operate an aircraft to comply with air traffic control instructions. It is questionable whether an air traffic controller, especially one who does not hold a pilot certificate, is qualified to counsel an airman on how to read a chart or how to organize a cockpit for an approach or departure.

AOPA believes that before the FAA undertakes the test program roughly outlined in the Letter to Airmen 98-01, answers to these and other concerns that may be raised by the

local pilot community need to be addressed in writing. Doing so will help both the FAA and the aviation community understand the ground rules, potential risks, and parameters

of the program. Once AOPA has this greater understanding of the program, we will be in a better position to properly advise our members about participating in the program. AOPA would like to be able to encourage participation in this well-intentioned test program however, we can do this only after we understand how the AOPA member, and aviation safety will be affected.

We look forward to your reply and stand ready to assist you and your staff in identifying and addressing any additional potential impediments to the free exchange of safety information between airmen and air traffic personnel. If you have questions or need additional information please feel free to contact me at 301-695-2207, Monday through Friday, Eastern Time.

Respectfully,

Douglas C. Macnair
Director
Regulatory and Certification Policy

Cc: Ray Costello
Tom Wardleigh
Ginny Hyatt
Felix Maguire
John Craft
Jerry Nunley