July 5, 1999 The Pilot's Lounge #11: LAHSO's Double Secret Probation

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by	Rick Durden

About the Author ... Rick Durden is a practicing aviation attorney who holds an ATP Certificate, with a type rating in the Cessna Citation, and Commercial privileges for gliders, free balloons and single-engine seaplanes. He is also an instrument and multi-engine flight instructor. Rick started flying when he was fifteen and became a flight instructor during his freshman year of college. He did a little of everything in aviation to help pay for college and law school including flight instruction, aerial application, and hauling freight. In the process of trying to fly every old and interesting airplane he could, Rick has accumulated over 5,400 hours of flying time. In his law practice, Rick regularly represents pilots, fixed base operators, overhaulers, and manufacturers. Prior to starting his private practice, he was an attorney for Cessna in Wichita for seven years. He is a regular contributor to Aviation Consumer and AOPA Pilot and teaches aerobatics in a 7KCAB Citabria in his spare time. Rick makes it clear he is part owner of a corporation which owns a Piper Aztec — because, having flown virtually every type of piston-engine airplane Cessna manufactured from 1933 on, as well as all the turboprops and some of the jets, he cannot bring himself to admit to actually owning a Piper.

Hot Fun In The Summertime?

It has been a pretty good month in the Pilot's Lounge. Summer is here and the airplanes are beautiful. For the second year in a row we have had great weather, so the old saw, "what comes after two days of rain in Michigan? Monday" is not holding up. As one of the pilots in the lounge said, "If this is global warming, give me more." We sent her out to sweep a hangar.

Some of the folks have been getting in trouble at home because they can't bring themselves to go home on these lovely, soft evenings. After all, how can you leave when you see Sandy slipping the Citabria over the trees and gracefully straightening out during the flare? When you realize you can't tell the exact moment the tires started rolling on the ends of the grass you just stand mesmerized. Landings like those, on a perfect summer evening, are something to be bottled and kept forever. When the snow is blowing and you can't even get to the airport, pull out the memory and just savor it. No wonder it's impossible for most of us to leave until it gets dark.

We've pulled the chairs from the Lounge outside where we can watch the artistry of little airplanes in the sky. We shamelessly indulge in the time-honored activity of critiquing landings and continue to talk about flying as we always do. The talk during the month has been about two subjects, one which pleases all of us and one which is just plain scary because it may be a tip of an iceberg. The very pleasant subject was some correspondence passed along to us from the Atlanta Air Route Traffic Control Center (ARTCC).

Kudos To Atlanta Center

Last month, I was critical of one phase of Atlanta ARTCC's Catch A Bad Altitude program. That portion was the process of making tapes of pilots who improperly read back altitude clearances and sending them to their airline employer. I was concerned that it could result in a job action against the pilot. To their everlasting credit, Atlanta ARTCC has dropped that portion of the program.

A Brief History...

To recap, if a pilot misreads an altitude clearance and a controller catches it and corrects the pilot, it has historically meant that a potential midair was avoided. As a pilot, I am all for controllers who catch my mistakes before I do something stupid. Now, Atlanta ARTCC has put up an additional carrot for the controller. After the correction the controller is eligible for a $50 gift certificate. That took some creativity and effort on the part of the folks at Atlanta.

In the last couple of weeks, AVweb received detailed email from Elizabeth Ray and Mark Ward, managers at Atlanta ARTCC. They have explained the purpose of the Catch A Bad Altitude program and the fact the sending of tapes was dropped. In a nutshell, the timing of the program — coming just after the FAA issued its infamous "interpretive rule" on clearance readbacks (making pilots strictly liable for a mistaken clearance readback if the controller doesn't catch the mistake) — was precisely as we suspected, a coincidence. The FAA in Washington did not coordinate the interpretive rule with the FAA employees doing the work of controlling aircraft in the real world. Thus, Atlanta ARTCC was unfairly tarred for its timing of its program, just when pilots were extremely suspicious of anything the FAA might do.

The purpose of Atlanta's program is system improvement. They want to see if they can find out whether the problem of bad altitude readbacks are more prevalent in particular sectors, or among pilots not wearing headsets or at particular times of day or if there are some other variables which can be identified as culprits. They expressed concern because Atlanta generally issues more holding clearances than other Centers and felt, but had no data, that the complexity of clearances increased the risk of altitude readback errors. They want data to work with and this program is a very good way to obtain it.

The Atlanta ARTCC has 300 to 400 erroneous altitude readbacks per month. That's staggering. The VAST majority of errors are air carrier. Atlanta wants to reduce the number markedly. The folks there also want your ideas as to how to go about it. I don't think they have a big budget for the program. So, the idea of collecting tapes and using a computer to distort the voice qualities and editing out call signs probably wouldn't work. I still think that creating transcripts of the transmissions with call signs redacted could result in excellent learning tools for pilots. Circulating the transcripts of several hundred errors might help us pilots do a better job. We might also identify circumstances when we pilots are more likely to make errors and be on the watch for them.

Editor's Note: AVweb has learned that Atlanta ARTCC's Catch A Bad Altitude program has garnered the attention of the FAA's top brass in the Flight Standards Division and in its legal department. The issue seems to be whether Atlanta ARTCC should have developed and implemented the CABA program without gaining the approval of FAA headquarters.

I'll say it again, Atlanta Center, you are to be commended for your efforts to improve safety. I firmly believe that the pilot-controller relationship is one of teamwork and I'm pleased that you have instituted this innovative program to help the pilot-controller team work even better together.

Now The Bad News

While the habitues of the Lounge discussed the good news coming from Atlanta ARTCC, one of our regulars, an FAA employee, took me aside for a talk. I was asked if I had read the material on Land and Hold Short Operations (LAHSO). [NOTE: An FAA brochure describing the LAHSO program is available in Adobe's Portable Document Format. The file is large, around one megabyte.] I said I'd seen some comments about it in magazines and some pretty negative editorials and heard some questions about go-around procedures, but simply hadn't gotten anything official. I'd been offered one land and hold short clearance but before I'd even been able to respond the controller cleared me to land on another runway which had no intersecting runway.

The next thing I knew I was handed an internal FAA Bulletin, FSGA 99-02, "General Aviation 14 CFR Parts 91 and 125 Land and Hold Short Operations (LAHSO)," effective March 30, 1999. I started looking at the bulletin and skimmed through the discussions of landing distances for various airplanes and that neither student pilots nor pilots flying experimental airplanes may participate. My lips were starting to get tired from all the reading when I saw something that stopped me cold:

"Title 14 CFR, Part 91 operators (that's us, folks) shall, using one or more of the Knowledge Based Training Methodologies outlined below, become completely familiar with and have a good basic understanding of LAHSO procedures PRIOR TO ACCEPTING A LAHSO CLEARANCE.

Don't Get LAHSO'd

Did you know that you cannot accept a LAHSO clearance unless you have completed one of four specific types of approved FAA training procedures?

Okay class, show of hands: How many of you flying Part 91 have accepted a land and hold short clearance? Had you completed the FAA's "Knowledge Based Training" prior to doing so? According to the FAA's internal bulletin, not sent out to pilots, you could not legally accept the clearance. Doesn't that make you feel wonderful?

You cannot legally accept a land and hold short clearance under Part 91 until you have been completed approved training. No, there is no FAR to that effect, just an FAA internal pronouncement. If you accept a clearance and blow the landing, then get busted, it is likely the FAA will also violate you for accepting the clearance illegally. You have just violated double secret probation.

Yes, according to my source, the incongruity of the whole thing has been passed back up the chain within the FAA but there has been nothing rescinding or amending the bulletin as of yet.

So, pilots have no way of knowing they cannot accept a land and hold short clearance until they have received the training which will allow them to accept the clearance and tells them they couldn't accept the clearance before taking the training. Thanks, FAA, for bringing Catch-22 into the 1990s.

Therefore, until you get the training, don't accept a land and hold short clearance. You cannot legally do so. By the way, according to the bulletin the approved training is one of, or a combination of the following:

a. A review of the pertinent sections of the Aeronautical Information Manual (it was to be revised about the time of the bulletin);
b. Attendance at FAA and/or industry safety education seminars that include LAHSO as an emphasis topic;
c. Successful completion of a flight review (we used to call it the BFR) containing procedural guidance on LAHSO operations, and;
d. Successful completion of a flight instructor refresher clinic that includes guidance on LAHSO operations.

The Bottom Line...

You heard it here first: You cannot legally accept a land and hold short clearance under Part 91 until you have completed approved training. No, there is no FAR to that effect, just an FAA internal pronouncement. If you accept a clearance and blow the landing, then get busted, it is likely the FAA will also violate you for accepting the clearance illegally. You have just violated double secret probation. It will be very interesting when the first one of those violations gets appealed to the National Transportation Safety Board. It's not often that the NTSB slaps down the FAA for improper actions, but when it happens, it's fun to watch. The FAA didn't even give lip service to the requirement for public comment before imposing a new rule on this matter.

I don't know if latter March/early April was a time of increased internal stress at the FAA, but in a matter of days, the FAA conducted rulemaking by administrative fiat. It published the horrendous interpretive rule attempting to change the tenor of the regulations on pilot responsibility for ATC readback errors and it put out this bulletin requiring a pilot to have specialized training before accepting a particular type of ATC clearance.

It is bad enough that the FAA seems to be bound and determined to get around the requirement to submit proposed new regulations for public comment by calling regulations something else and simply issuing them, but to then make a new rule and not tell pilots about it is Kafkaesque. Are there other rules in internal bulletins we don't know about? How big is this iceberg? I guess we are only to learn of them when we violate one. Law enforcement of that sort is the kind of thing that starts revolutions.

...The Season Of The FAA's Discontent?

Keep your eyes open; the top folks at the FAA seem to be in the mode of avoiding public comment and doing end runs around the rule-making process. Most recently, the FAA attempted to simply issue a very involved AD on turbocharged twin Cessna exhaust systems without going through the normal Notice of Proposed Rulemaking by essentially claiming the AD was of an emergency nature. AVweb, the Cessna Pilots Association and AOPA raised a stink and the AD is now going to go out for comment for a very short period. The top echelon of the FAA is ignoring the input of the pilots whom they are supposed to be serving.

Personally, I am glad my EAA and AOPA dues are up to date. When dealing with a 900-pound gorilla it is wise to have some firepower on your side. The economist John Kenneth Galbraith wrote about countervailing powers some years back. He was ahead of his time. When individual pilots face a massive bureaucracy our only hope is to band together in the hopes of having the kind of power needed to have an effect on that bureaucracy. It also certainly doesn't hurt to write to your representatives in Congress frequently.

So, say nice things to Atlanta ARTCC, but don't accept any land and hold short clearances until you've been trained.

See you next month.