In a recent NTSB opinion, the Board rejected an airman’s FAR 91.3 emergency affirmative defense and affirmed a 45-day suspension of an airman’s commercial pilot certificate for his violation of FAR 91.129(c)(1) (requiring airman to establish and maintain two-way radio communication with ATC in Class D airspace). In Administrator v. Gibbs, the FAA alleged that the airman flew a helicopter into Class D airspace without first establishing communication with ATC and then failed to maintain two-way communications. At the hearing, the airman asserted that his conduct was unintentional and inadvertant because the weather created an emergency situation that resulted in his disorientation and entry into Class D airspace prior to communicating with ATC. However, the ALJ determined that it was clear the airman entered Class D airspace without establishing or maintaining two-way radio communications, and affirmed the FAA’s order of suspension.
On appeal to the Board, the airman argued that his failure to declare an emergency did not diminish the authority vested in an airman under FAR 91.3 and, as a result, the alleged emergency situation, in and of itself, excused the violation. However, the Board disagreed. It initially noted that the airman had the burden of proof with respect to his defense and he needed to establish a causal connection between the emergency situation and the departure from the regulatory requirements of FAR Part 91. The Board also observed that an emergency situation caused by a PIC’s own actions does not excuse or justify departure from the regulations and FAR 91.3 does not relieve an airman from the duty to obey the regulations.
The Board then held that the evidence supported the airman’s violation of FAR 91.129(c)(1). It also agreed with the ALJ’s determination that any emergency that occurred was the result of the airman’s own actions and the airman did not take appropriate steps to reduce the risk of an incursion. The Board concluded that the airman had not met his burden of proving that emergency conditions caused his lack of preparedness and awareness.
In this situation, it likely would not have mattered if the airman had declared an emergency. Both the FAA and the Board would still look at the totality of the circumstances to determine whether an emergency existed that was not the result of the airman’s conduct. And even if an emergency existed, they would also still analyze the airman’s conduct to determine whether it was reasonable under the circumstances. Thus, whether or not the airman declared an emergency, the analysis of the situation would remain the same.
