[Federal Register Volume 64, Number 62 (Thursday, April 1, 1999)]
[Rules and Regulations]
[Pages 15912-15914]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-8081]
[[Page 15911]]
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Part IV
Department of Transportation
_______________________________________________________________________
Federal Aviation Administration
_______________________________________________________________________
14 CFR Part 91
Pilot Responsibility for Compliance With Air Traffic Control Clearances
and Instructions; Rule
Federal Register / Vol. 64, No. 62 / Thursday, April 1, 1999 / Rules
and Regulations
[[Page 15912]]
DEPARTMENT OF TRANSPORTATION
Federal Aviation Administration
14 CFR Part 91
Pilot Responsibility for Compliance With Air Traffic Control
Clearances and Instructions
AGENCY: Federal Aviation Administration (FAA), DOT.
ACTION: Interpretive rule.
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SUMMARY: Pilots operating in areas in which air traffic control is
exercised are required by regulation to comply with the clearances and
instructions of air traffic controllers except in very narrow
circumstances. The FAA has consistently construed and enforced this
requirement as ascribing to pilots a high level of responsibility to
monitor air traffic control communications attentively. Under normal
circumstances, the FAA has expected pilots to understand and to comply
with clearly transmitted and reasonably phrased clearances and
instructions that govern their operations. Nevertheless, a series of
recent National Transportation Safety Board (NTSB) enforcement
decisions has raised a question regarding the regulatory responsibility
of pilots to hear and to comply with air traffic control clearances and
instructions. This interpretive rule confirms the FAA's historical
construction of its regulations that require compliance with air
traffic control clearances and instructions.
EFFECTIVE DATE: This document is effective March 26, 1999.
FOR FURTHER INFORMATION CONTACT: Eric Harrell, Air Traffic Operations
Program, ATO-100, Federal Aviation Administration, 800 Independence
Avenue, SW, Washington, DC 20591, (202) 267-9155 or James Tegtmeier,
Office of the Chief Counsel, AGC-300, Federal Aviation Administration,
800 Independence Avenue, SW, Washington, DC 20591, (202) 267-3137.
SUPPLEMENTARY INFORMATION:
History
The FAA's general operating and flight rules require pilots to
comply with the clearances and instructions of air traffic control,
unless they are amended, except in an emergency or in response to a
traffic alert and collision avoidance system resolution advisory.
Although a number of aviation regulations are based on this
requirement, the general responsibility of pilots to comply with air
traffic control clearances and instructions is presently located at 14
CFR 91.123 (a) and (b). Aviation regulations according the same
responsibility as section 91.123 have existed in similar terms for many
decades.
As a practical matter, air traffic control communications rely
heavily on accurate verbal radio communication. As a result, the FAA
has long considered that aviation safety requires air traffic control
to function as a cooperative system, in which all participants must
share the responsibility for accurate communication. In the FAA's view,
the duty of pilots and air traffic controllers alike is adherence to a
high standard in communicating clearly, listening attentively, and
understanding reasonably.
Bearing in mind these shared responsibilities, when a
miscommunication or misunderstanding occurs, the FAA deems responsible
the participant who is the initiating or principal cause of the error.
For example, the use of unclear terminology, a failure to hear
accurately, or a failure to understand a clear transmission can be the
initiating or principal cause of a miscommunication. An example in
which an air traffic controller's role excuses the pilot might arise
from the controller's issuance of an ambiguous clearance or use of
misleading terminology that reasonably causes the pilot's
misunderstanding. An example in which neither air traffic control nor
the pilot is to blame for a miscommunication might exist when the
aircraft's radio fails.
With respect to the level of attention and comprehension expected
of pilots, an interpretation of a regulatory predecessor to 14 CFR
91.123 was published with the regulation from 1955 through 1962.\1\
This interpretation reflects an expectation that pilots will pay
particular attention to the transmissions of air traffic control,
because air traffic controllers frequently must issue clearances that
differ from those that pilots anticipate.
\1\ 20 FR 2512, 2523 & n.3 (1955) (promulgating 14 CFR 60.21-1);
see, e.g., 14 CFR 60.21-1 n.3 (1962).
It is important that pilots pay particular attention to the air
traffic clearance and not assume that the route and altitude are the
same as requested in the flight plan. It is suggested that pilots
make a written record of clearances at the time they are received []
and verify the clearance with Air Traffic Control if any doubt
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exists.
This interpretative language captures the general responsibility of
pilots to remain attentive to the content of air traffic control
transmissions, as well as the duty of pilots to resolve any confusion
they perceive by contacting air traffic control. The FAA's codification
of the latter aspect of these responsibilities currently appears in 14
CFR 91.123(a), which requires pilots to request clarification in the
event that they are uncertain about an air traffic control clearance or
instruction.
With respect to the more general duty of pilots to remain attentive
to and to comprehend air traffic control transmissions, the FAA
considers responsibility to hinge on the circumstances. It is air
traffic control's practice not to presume that a pilot has received a
clearance or instruction unless the pilot first acknowledges receipt of
the radio transmission. When a clearance or instruction is issued and
acknowledged but the pilot nevertheless fails to comply with the
transmission, the FAA construes its regulations to indicate pilot
responsibility where neither air traffic control involvement nor a
mechanical problem causes the pilot's lapse. Thus, when air traffic
control transmits a clearance or instruction that is properly
acknowledged and there is no evidence of radio malfunction or similar
interference with receipt, the FAA presumes that the radio transmission
is received in the aircraft cockpit. Based on the pilot's duty to
listen attentively to air traffic control transmissions and to construe
them reasonably, if a clearance or instruction is reasonably phrased
and received in the cockpit, the pilot's failure to hear or to
understand it is the result of the pilot's negligence.
In reviewing the FAA's enforcement of FAA regulations, the NTSB has
historically agreed with the FAA's construction of the air traffic
control regulations. In Administrator v. Wolfenbarger, for example, an
NTSB administrative law judge dismissed the FAA's allegation that a
pilot did not comply with an air traffic control instruction to stop
his aircraft short of the active runway. Noting that the pilot's radios
were working and that air traffic control's radio transmissions were
being broadcast, the NTSB granted the FAA's appeal.
Whether radio frequencies are mis-selected, whether a pilot does
not hear because his attention is elsewhere, or whether he hears a
transmission but chooses to ignore it, is irrelevant. * * * As the
Administrator points out * * *, the law judge's construction (that a
pilot might excusably miss an air traffic control transmission
without reason] would lead to avoidance of all [air traffic
control]) instruction violations simply by claiming that they were
not received. Not only is this
[[Page 15913]]
a strained reading, but it is inconsistent with our prior
interpretation of the rule.\2\
\2\ Wolfenbarger, No. EA-3684, 1992 WL 289055, at *3 (N.T.S.B.
Oct. 8, 1992) (citation omitted).
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Similarly, in Administrator v. Nelson, the NTSB agreed that the text of
an air traffic control clearance supported the conclusion that the
pilot did not exercise the high level of care and attention expected of
him when he mistakenly took a clearance, because it was directed to
another aircraft. Although a portion of the clearance may have been
blocked and therefore not received by the pilot, the NTSB found that
the pilot should not have construed the clearance to be directed to his
aircraft.\3\
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\3\ Nelson, 2 N.T.S.B. at 1900, 1902 (1975).
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Related to the responsibilities of pilots and air traffic
controllers in conducting radio communications, the NTSB has added to a
pilot's full and complete readback--or verbal repetition--of an air
traffic control clearance or instruction offers a level of redundancy
that reduces the risk of miscommunication.\4\ At the same time, the
NTSB acknowledged that FAA regulations do not require pilots to give a
full and complete readback. The NTSB observed that there is concern
that full readbacks can lead to the congestion of radio frequencies and
in some instances disserve air safety.\5\
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\4\ See, e.g., Administrator v. Hinkle, 5 N.T.S.B. 2423, 2425-26
(1987).
\5\ Hinkle, 2 N.T.S.B. at 2426.
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Nevertheless, when pilots incorrectly repeat air traffic control
transmissions, the NTSB's apparent preference for full readbacks has
led to two inconsistent lines of case law. The first line of NTSB
reasoning generally accords with the FAA's interpretation of FAA
regulations. In these cases, the NTSB concludes that an air traffic
controller's failure to identify and to correct a pilot's erroneous
readback contributes to the pilot's error and warrants a mitigation of
the sanction for the pilot's regulatory violation.\6\
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\6\ See Administrator v. Swafford, No. EA-4117, 1994 WL 108069,
at *2-3 (N.T.S.B. Mar. 31, 1994) (reversing the administrative law
judge's initial decision dismissing the FAA's complaint, reinstating
two pilots' regulatory violations, and reducing the sanction for the
violations).
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A second line of NTSB decisions, which diverges from the FAA's
longstanding construction of FAA regulations, suggests that providing a
readback will excuse the pilot even if the pilot is the initiating or
principal cause of a miscommunication. In administrator v. Frohmuth,
the NTSB appeared to base its decision on a finding the air traffic
controller initiated and then supported the two pilots'
misunderstanding.\7\ In language not directly required for its legal
conclusion, the NTSB added that the pilots' full readback placed
responsibility to correct the error on air traffic control.\8\
Regardless, the NTSB acknowledged the importance of pilots' careful
attention to air traffic control transmissions and specified that
pilots will, as a general rule, be held responsible for their
mistakes.\9\
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\7\ No. EA-3816, 1993 WL 75479, at *2 (N.T.S.B. Mar. 18, 1993).
\8\ Frohmuth, No. EA-3816, 1993 WL 75479, at *2-3.
\9\ Frohmuth, No. EA-3816, 1993 WL 75479, at *2.
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Despite the limiting language in Frohmuth, the NTSB recast the
decision the following year in Administrator v. Atkins, developing a
line of reasoning that does not hold pilots responsible for the errors
that they initiate.
(In Frohmuth), we clarified [our] precedent by explaining that
even if a deviation from a clearance is initiated by an inadvertent
mistake on the pilot's part, that mistake will be excused and no
violation will be found if, after the mistake, the pilot takes
actions that, but for [air traffic control], would have exposed the
error and allowed for it to be corrected.\10\
\10\ Atkins, No. EA-4078, 1994 WL 49589, at *2 (N.T.S.B. Feb.
16, 1994).
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The NTSB expanded this reasoning to excuse pilots based on certain
partial readbacks in its decision in Administrator v Rolund.\11\ In
Rolund, the NTSB accepted that a pilot, without explanation, did not
hear the altitude portion of his clearance, although he correctly read
back another portion of the clearance.\12\ The NTSB excused the pilot
from responsibility despite his failure to provide a full and complete
readback, concluding that the air traffic controller should have
questioned the pilot about the part of the clearance that the pilot
failed to read back.\13\
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\11\ No. EA-4123, 1994 WL 132539, (N.T.S.B. Apr. 8, 1994) (order
denying reconsideration), aff'd, 57 F.3d 1144 (D.C. Cir. 1995).
\12\ Rolund, No. EA-4123, 1994 WL 132539, at *2.
\13\ Rolund, No. EA-4123, 1994 WL 132539, at *2.
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More recently, in Administrator v Merrell, the NTSB excused a
miscommunication for which the pilot was the initiating or principal
cause due to an unexplained ``error of perception,'' resulting in the
pilot's acceptance of a clearance for another aircraft and a loss of
separation between two commercial flights.\14\ The NTSB agreed that the
pilot's unexplained error caused the miscommunication and also
seemingly agreed that there was no prior or subsequent air traffic
control contribution to the pilot's error.\15\ The NTSB excused the
pilot's error based on his readback, although the pilot's readback was
blocked by another radio transmissions and could not have been received
and corrected by air traffic control.\16\
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\14\ No. EA-4530, 1997 WL 335741, at *2 (N.T.S.B. Mar. 12,
1997), recon. denied, No. EA-4670, 1998 WL 309790 (N.T.S.B. June 11,
1998), petition for review docketed, No. 98-1365 (D.C. Cir. Aug. 7,
1998).
\15\ Merrell, No. EA-4530, 1997 WL 335741, at *2; Merrell, No.
EA-4670, 1998 WL 309790, at *1 & 3 n.4.
\16\ Merrell, No. EA-4530, 1997 WL 335741, at *1, 2; Merrell,
No. EA-4670, 1998 WL 309790, at *1 & 3 n.4.
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The NTSB's line of reasoning originating in Frohmuth and presently
culminating in Merrell, in effect, substitutes a duty to provide a full
or, in some cases, a partial readback for a pilot's duty to listen
carefully to and understand reasonably the air traffic control
transmissions received in his or her aircraft. The NTSB's
interpretation does not correspond to the FAA's construction of FAA
regulations and requires correction.
Interpretation
The NTSB's Frohmuth-based line of decisions deviates from an
accurate construction of the FAA's regulations governing air traffic
control communications. These FAA regulations require pilots to comply
with air traffic control clearances and instructions. Contrary to the
NTSB's reasoning, pilots do not meet this regulatory imperative by
offering a full and complete readback or by taking other action that
would tend to expose their error and allow for it to be corrected.
Readbacks are a redundancy in that they supply a check on the exchange
of information transmitted through the actual clearance or instruction.
Full and complete readbacks can benefit safety when the overall volume
of radio communications is relatively light; however, they can be
detrimental during periods of concentrated communications.
Giving a full readback of an air traffic control transmission could
result in the mitigation of sanction for a regulatory violation when
the air traffic controller, under the circumstances, reasonably should
correct the pilot's error but fails to do so. Accordingly, the FAA may
take this factor into consideration in setting the amount of sanction
in FAA enforcement orders. However, the simple act of giving a readback
does not shift full responsibility to air traffic control and cannot
insulate pilots from their primary responsibility under 14 CFR 91.123
and related regulations to listen attentively, to hear accurately, and
to construe reasonably in the first instance.
[[Page 15914]]
Economic Considerations
This interpretation is not a change to the subject regulation that
must undergo the economic analyses prescribed in Executive Order 12866
or the Regulatory Flexibility Act of 1980. It is not ``a significant
regulatory action'' as defined in the Executive Order or the Department
of Transportation Regulatory Policies and Procedures. This interpretive
rule will not have a significant impact on a substantial number of
small entities and will not constitute a barrier to international
trade. Because this interpertive rule merely provides the correct
interpretation of a regulation as the FAA has enforced it, it does not
impose a separate economic impact, and no further economic evaluation
is warranted.
Issued in Washington, DC, on March 26, 1999.
Jane F. Garvey,
Administrator.
[FR Doc. 99-8081 Filed 3-31-99; 8:45 am]
BILLING CODE 4910-13-M
