In a recent FAA enforcement action, Administrator v. Kooistra, the FAA alleged the airman committed a number of operational errors in violation of FARs 91.9(a) (requiring compliance with an aircraft’s operating limitations), 91.13(a) (careless and reckless), 91.117(a) (prohibiting operation of an aircraft below 10,000 feet mean sea level at an indicated airspeed of more than 250 knots), 91.123(b) (requiring compliance with ATC instructions), and 91.703(a)(3) (requiring a person operating an aircraft of U.S. registry outside the United States to comply with FAR Part 91 to the extent that it is not inconsistent with the applicable regulations of the foreign country where the aircraft is operated). The FAA issued an order suspending the airman’s airline transport certificate for 60 days and the airman appealed to the NTSB.
At the hearing before the administrative law judge (“ALJ”), the airman did not deny the operational errors, but rather asserted a number of affirmative defenses including that his violations were justifiable based on the fact that he was suffering from fatigue. At the end of the hearing, the ALJ acknowledged the airman’s fatigue defense, but stated ““[t]he aspect of fatigue … cannot excuse an Airline Transport rated pilot who at all times must exercise the very highest standard of care, judgment and responsibility which the complete record shows that was not exercised by [the airman].” The ALJ affirmed the FAA’s order and the airman then appealed to the full Board.
On appeal, the Board rejected the airman’s fatigue defense. It acknowledged “the tremendous effects fatigue may have on virtually all major aspects of a pilot’s behavior in the cockpit” and observed that “pilot fatigue has consequently been a noteworthy aviation safety issue in the past year.” And although the airman relied upon a FAA Notice of Proposed Rulemaking, Flightcrew Member Duty and Rest Requirements, that describes how fatigue can adversely affect several aspects of a pilot’s conduct, the Board observed that the Notice, which is a proposed rule and not yet in effect, “does not state that the FAA’s policy is to allow fatigue to serve as an affirmative defense, whereby it excuses regulatory violations.” As a result, the Board concluded that the airman had provided “no authority for his proposition that fatigue should serve as an affirmative defense to excuse a pilot of violating operational regulations.”
Interesting defense. Unfortunately, the airman didn’t have any law to back it up. Certainly fatigue is currently a hot button for the FAA and the industry. But, for now, the onus of regulatory compliance will remain with the airman, regardless of whether he or she is suffering from fatigue. Thus, the airman will need to determine whether he or she is too fatigued to comply with the regulations BEFORE the airman operates an aircraft.