Pilot Counsel

FAA immunity for runway incursions

June 1, 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.

John S. Yodice