[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





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Federal Aviation Administration



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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