Regulatory and Certification Policy
FAA interpretive rule places the responsibility for compliance with ATC clearances and instructions squarely on the pilot
The issue:On April 1, 1999, the Federal Aviation Administration published what they called an "interpretive rule" in the Federal Register. The stated purpose of this interpretive rule was to "correct" the National Transportation Safety Board legal interpretation of the FAA regulations regarding communications between the pilot and air traffic control personnel. In essence the interpretive rule overturns a line of reasoning developed through a series of enforcement case appeals heard before the NTSB Administrative Law Judges. This line of decisions absolved the pilot of responsibility in certain instances where incorrect information was read back by the pilot and not caught by ATC personnel. FAA�s new interpretive rule squarely places the primary responsibility on the pilot to listen attentively, to hear accurately, and to construe reasonably all ATC instructions and clearances. In effect, the simple act of giving a readback does not shift the primary responsibility to air traffic control and does not insulate the pilot from enforcement action in the event of error.
The importance to our members:The FAA�s issuance of this interpretive rule raises several concerns. First, it shifts all responsibility for proper communication and understanding to the pilot, raising the specter of increased enforcement actions against airmen for communications deviations. Further it tampers with the notion that aviation safety requires air traffic control to function as a cooperative system, in which all participants must share the responsibility for accurate communication. The interpretive rule places the pilot and controller in an adversarial position, each trying to protect themselves from penalty or enforcement. Perhaps the greatest consequence of this interpretive rule is the precedent that it sets for the NTSB appeal process. In effect, the FAA is demonstrating a willingness to overturn any line of reasoning or decisions developed through the NTSB enforcement appeal process that do not fit the FAA�s desired interpretation. Further, they feel they can do this by publishing a simple statement in the Federal Register describing their desired interpretation. This approach sets a dangerous precedent and could be applied in the future to overturn other NTSB appellate lines of reasoning deemed to be undesirable by the FAA.
- 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.
- It has traditionally been the FAA�s view that it is the duty of pilots and controllers alike to adhere to a high standard of clear communication, attentive listening, and reasonable understanding.
- Given these shared responsibilities, the FAA deems responsible the participant who is the initiating or principal cause of a miscommunication or misunderstanding.
- NTSB case law reasoned that a pilot was absolved of responsibility if an erroneous full read back of clearances or instructions were given by the pilot and the error was not detected or corrected by the controller.
- FAA does not agree with the NTSB�s interpretation and believes this requires correction.
- FAA states that 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 �91.123.
AOPA position:AOPA is strongly opposed to the issuance of this interpretive rule and believes that it undermines the free flow of information between pilots and controllers and thus hinders aviation safety. Further, we are deeply concerned with the legal precedent this sets in having the FAA overturn NTSB lines of decisions with the simple stroke of the pen. In our view, this nullifies the airman�s only right of appeal in the enforcement process.
Status:AOPA is conducting a careful and thorough legal review of both the substance of the FAA�s interpretation of the rules as well as the use of an interpretive rule to overturn case law. On April 15, 1999 AOPA sent a letter to FAA Administrator Garvey outlining our concerns and urging the FAA to withdraw the interpretive rule. AOPA is awaiting a formal response to our letter from the FAA and will continue to evaluate the legal ramifications of the FAA�s abuse of its discretion in overturning NTSB case law using the interpretive rule.
Related documents:FAA 14 CFR Part 91 Pilot Responsibility for Compliance with Air Traffic Control Clearances and Instructions (requires Adobe Reader)
AOPA Letter to FAA Administrator Jane Garvey, April 15, 1999
AOPA Press Release 99-2-007, April 16, 1999