SAFETY PLT OF SMA TRAINING ACFT COMPLAINT REGARDING CONFUSION OVER TWR TERMINOLOGY USED BY THE TWR IN USING A CLOSED RWY.

Narrative

ON THE MORNING OF FEB/FRI/93; AFTER A NIGHT OF HVY RAIN; THE PALO ALTO TWR CTLRS ELECTED TO CLOSE THE RWY DUE TO A LARGE AMOUNT OF STANDING WATER ABOUT 1/2 WAY DOWN ON THE NE SIDE OF THE RWY EXTENDING NEARLY TO THE CTRLINE OF THE RWY. THE DRY SIDE OF THE RWY ALLOWED AMPLE ROOM TO CONDUCT OPS SAFELY; NEVERTHELESS; THE RWY REMAINED CLOSED DUE TO THE WATER HAZARD. DUE TO THE FACT THAT THERE WAS ROOM TO OPERATE ON THE RWY WHILE AVOIDING THE WATER QUESTIONS WERE RAISED ABOUT WHETHER OR NOT 'OWN RISK' OPS COULD BE CONDUCTED. THE ATC SPECIALISTS CAME TO THE CONCLUSION FROM THEIR HANDBOOK THAT THEY COULD ALLOW BUT NOT OFFICIALLY AUTHORIZE OPS FROM THE CLOSED RWY. IT WAS UNDER THIS PRETENSE THAT ACFT BEGAN TO OPERATE 'AT THEIR OWN RISK' AND DID SO ALL DAY LONG. LATE IN THE AFTERNOON SAN JOSE FSDO CALLED THE TWR SAYING THAT OPS AT AN ARPT REQUIRED APPROPRIATE ATC CLRNCS IF THE TWR WAS IN OP. THEREFORE PLTS OPTING TO OPERATE AT THEIR OWN RISK WERE NOT AT LIBERTY TO EXERCISE SUCH AN OPTION DUE TO THE WORDING OF FAR 91.129(H) WHICH SPECIFIES THE NEED FOR ATC CLRNC AT AN ARPT WHERE A CTL TWR IS IN OP. I BECAME INVOLVED IN THIS AS A POSSIBLE VIOLATOR OF THIS PROVISION WHEN I DEPARTED AS A SAFETY PLT FOR ANOTHER ATP REFRESHING HER INST SKILLS. I WANT TO MAKE IT CLR THAT; AT LEAST IN MY CASE; IT WAS QUITE CLR THAT THE FAA AGENTS IN THE TWR DID NOT BELIEVE THAT AN ACFT OPERATING AT ITS OWN RISK WAS IN VIOLATION OF ANY FAR. DURING THE ENG RUN- UP ANOTHER ACFT ENTERED THE RUN-UP AREA AND POSED A QUESTION TO THE ATC SPECIALIST (I BELIEVE IT WAS THE LCL CTLR). HE INQUIRED AS TO WHETHER OR NOT 'I AM DOING ANYTHING ILLEGAL BY OPERATING AT MY OWN RISK.' THE RESPONSE WAS; AT BEST; ONLY MILDLY DISCOURAGING. HE WAS TOLD THAT THE TWR COULD NOT ISSUE A DEP CLRNC BUT PLTS COULD ELECT TO DEPART AT THEIR OWN RISK. THERE WAS NO QUESTION THAT THE ANSWER GIVEN DID NOT AFFIRM THE ILLEGALITY OF THE ACTION. THE RESPONSE FROM ATC WAS RATHER LENGTHY AND EXPLANATORY OF THE SIT BUT THE NET RESULT (AND I BELIEVE THIS WAS STATED) WAS THAT IN THE TWR'S OPINION 'OWN RISK' OPS WERE NOT ILLEGAL. I MIGHT ADD THAT THIS TYPE OF INQUIRY WAS APPARENTLY OCCURRING ALL DAY LONG. HOWEVER; I CANNOT COMMENT ON ANY OTHER SUCH OCCURRENCE AS I DID NOT PERSONALLY WITNESS THEM. THE FOLLOWING DAY IT WAS LEARNED THAT THE FAA WAS BEGINNING AN INVESTIGATION INTO PROSECUTION OF THOSE INDIVIDUALS WHO DEPARTED DURING THIS PERIOD OF TIME. THIS RPT IS WRITTEN AS A CONTRIBUTION TO THE INFO BASE AVAILABLE ON THIS NOT SO POPULARLY UNDERSTOOD AREA OF CTLED ARPT OPS. IT IS ALSO OBVIOUSLY BEING WRITTEN AS PROTECTION FROM OUR FAA WHICH; AS USUAL; CANNOT MAKE UP ITS MIND HOW TO INTERPRET THE FARS.