On Fri, 08 Apr 2005 19:32:34 GMT, "Steven P. McNicoll"
wrote in
et::


"Denny" wrote in message
roups.com...

In it's infinite wisdom the gov't has decided that even if you read
back the wrong information and the controller does not correct it you,
the PIC, are responsible if subsequently violate airspace, or crash,
etc.


Actually, it hasn't. What the government decided was that if you read back
a clearance meant for another aircraft and the controller doesn't hear your
readback because your transmission was blocked by the transmission from the
proper aircraft then you, the PIC, are responsible for any loss of
separation, airspace bust, crash, etc., due to your error.


Here's some background information on the subject:


The Federal Register cite is he
http://www.aopa.org/whatsnew/regulat...retiverule.pdf

---------------------------------------
http://www.aopa.org/whatsnew/regulat...erpretive.html

Regulatory Brief
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.

Significant provisions:
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 Acrobat
Reader)

AOPA Letter to FAA Administrator Jane Garvey, April 15, 1999

AOPA Press Release 99-2-007, April 16, 1999

991604R1




-------------------------------------
-------------------------------------
http://www.aopa.org/whatsnew/newsite.../99-2-007.html

AOPA implores FAA Administrator Garvey to put safety first by
withdrawing readback errors interpretive rule
Apr. 16, 1999 — The Aircraft Owners and Pilots Association is
imploring FAA Administrator Jane Garvey to put safety first and
withdraw an “interpretive rule” that places blame solely on the pilot
for any errors in air traffic control clearance readbacks.
“Fix the problem, not the blame,” said AOPA President Phil Boyer.
“Just as with the ticket program, FAA is sending the message that
enforcement is more important than safety.”

In April, FAA issued an interpretive rule on Federal Aviation
Regulation 91.123 concerning a pilot’s responsibility to understand
and comply with air traffic control clearances and instructions.

The rule, in effect, absolves air traffic personnel from any legal
responsibility to correct misunderstandings between pilot and
controller. Simply put, if a pilot reads back an ATC instruction
incorrectly, the controller has no legal obligation to correct the
error. FAA could then take enforcement action against the pilot for
not complying with ATC instructions.

“This seems contrary to the Administration’s “Safer Skies Initiative”
and joint FAA-industry efforts to improve aviation safety,” Boyer told
Garvey.

Boyer said that pilots and controllers share responsibility for the
safety and integrity of the air traffic control system. There is no
evidence of pilots deliberately mishearing ATC instructions. Clearance
readbacks are part of a checks and balances system that guards against
miscommunication. That system depends on mutual trust between
controllers and pilots.

“But this interpretive rule is a classic Catch-22,” Boyer said. “The
pilot honestly believes he’s doing everything right, but FAA can still
hit him with an enforcement action. This rule will hinder
pilot-controller communication, and that will affect safety.”

Interpretive rule serves FAA legal self-interests, not safety
AOPA said the interpretive rule serves only the self-interests of
FAA’s legal and air traffic divisions.
“FAA’s Flight Standards Division has the expertise to determine how
pilots should comply with regulations and it is the only FAA division
that could even remotely be considered as having pilots’ interests at
heart,” Boyer said. “AOPA can’t find evidence in the rule that Flight
Standards had any significant input.”

FAA trying to overrule NTSB
FAA issued the ruling following several enforcement cases in which the
National Transportation Safety Board (NTSB) ruled against FAA and in
favor of the pilot. AOPA said that FAA was trying to thwart
congressional intent that NTSB have authority to independently review
FAA enforcement actions.
“FAA didn’t like NTSB’s rulings, so FAA changed the rules,” Boyer
said. “That flies in the face of fair and just principles of the law.”

Boyer told Garvey the interpretive rule was an abuse of FAA’s
discretionary authority and “ill conceived on many fronts.”

“Most onerous, it will rupture the cooperative relationship between
pilots and controllers to the detriment of aviation safety. We implore
you to withdraw this interpretive rule.”

A copy of AOPA President Phil Boyer’s letter to FAA Administrator Jane
Garvey is available on AOPA Online at
http://www.aopa.org/whatsnew/regulat...iveletter.html. [See also
AOPA's regulatory brief.]

The 345,000-member Aircraft Owners and Pilots Association is the
world’s largest civil aviation organization. More than one-half of the
nation’s pilots are AOPA members.

99-2-007
-------------------------------------------