91.3 emergency authority - "deviate from any rule OF THIS PART" - practical effects?

RussR

RussR

En-Route
Joined
Jan 12, 2011
Messages
4,403
Location
Oklahoma City, OK
Display Name
Display name:
Russ
It is often stated that a pilot can break "any" rule to deal with an emergency. I heard a pilot say this just the other day. Of course, this isn't technically true.

91.3 specifically says you can deviate from any rule of this part.

(b) In an in-flight emergency requiring immediate action, the pilot in command may deviate from any rule of this part to the extent required to meet that emergency.

"This part", of course, is Part 91. Other parts are not specifically covered by this paragraph.

My question is, in practice, does this ever come up? Are there cases where a pilot dealt with an emergency, but was still found to have violated some other FAR (like Part 61, 95, 97, 121, 135, etc.) for actions they performed while dealing with the emergency?
 
RussR said:
It is often stated that a pilot can break "any" rule to deal with an emergency. I heard a pilot say this just the other day. Of course, this isn't technically true.

91.3 specifically says you can deviate from any rule of this part.

(b) In an in-flight emergency requiring immediate action, the pilot in command may deviate from any rule of this part to the extent required to meet that emergency.

"This part", of course, is Part 91. Other parts are not specifically covered by this paragraph.

My question is, in practice, does this ever come up? Are there cases where a pilot dealt with an emergency, but was still found to have violated some other FAR (like Part 61, 95, 97, 121, 135, etc.) for actions they performed while dealing with the emergency?
Click to expand...
There are other similar provisions in other parts, where most relevant. For example, 121.557, 135.119. What's an example of an emergency that would require a deviation of the rules under Part 61?
 
Lindberg said:
What's an example of an emergency that would require a deviation of the rules under Part 61?
Click to expand...
The dreaded emergency takeoff with passengers when you didn't get those three landings done in time.

Nauga,
who had to get that serum through!
 
RussR said:
Are there cases where a pilot dealt with an emergency, but was still found to have violated some other FAR (like Part 61, 95, 97, 121, 135, etc.) for actions they performed while dealing with the emergency?
Click to expand...
The cases I've seen, at least on the helicopter side, is the "emergency" didn't live up to be an emergency and the pilot got hammered by the FAA and at times other agencies who wanted in on the action.
 
Bell206 said:
The cases I've seen, at least on the helicopter side, is the "emergency" didn't live up to be an emergency and the pilot got hammered by the FAA and at times other agencies who wanted in on the action.
Click to expand...
This sounds like the same incident I am aware of. Not sure the FAA got involved. But the National Park Service did, from how I recall the story told to me by the pilot.

His main defense was that that he was legally required by 91.3 to operate the aircraft and deal with with the situation, that he perceived to be an emergency, as safety as possible.

He chose to land at the closest location that emergency vehicles could get to, even though it was within the boundaries of the National Park, since he didn't know what was causing the passenger in the back of the helicopter to freak out and demand they land asap.

His defense was successful, primarily after they asked the Judge how he wanted the next helicopter pilot facing a similar situation to respond. Does he want the pilot land ASAP at the safest location possible or does he want the pilot to fly to closest legal place to land and risk that the emergency is real (fire, leaking hydraulic fluid, etc). And of course the Judge should consider that there is always the possibility it might be his kids on board the next helicopter that faces a similar situation.

They also brought up the point that even just a distraction (freaking out passenger, inoperative landing gear light) if not delt with properly can have Fatal Consequences.
https://en.wikipedia.org/wiki/Eastern_Air_Lines_Flight_401 for example
I recall he referenced another similar incident as well.
But these events emphasized his decision to land ASAP rather than try to figure out what the problem was in the air.

Brian
CFIIG/ASEL
 
Lindberg said:
What's an example of an emergency that would require a deviation of the rules under Part 61?
Click to expand...

That's kind of what I'm posing the question to find out. I mean, I can come up with examples, but I don't want the discussion to be about those particular examples, but more about the generic case. @Bell206 's statement is an interesting related situation as well.

Okay, I guess, for example, a typical VFR-only pilot inadvertently flies into IMC and declares an emergency. Could they be violated for various Part 61 rating and currency sections? How would this differ from the VFR-only pilot who is on top of a layer, in the clear, and has, I don't know, a fuel leak or engine fire or something, and descends through a layer of clouds? They aren't Part 61 IFR current. Or maybe a pilot who is not night current, has passengers, and plans to land during the daylight but has a landing gear issue and while troubleshooting it, the sun sets.

Or, I don't know, during an emergency you perform some maintenance on the airplane. That's Part 43.

Or you violate some provision of Part 93 (Special Air Traffic Rules).

Please don't get wrapped around any of my brainstormed examples, most of which are clearly stupid and SHOULD be within the PIC's authority. Just find any random Part that isn't 91 and construct a scenario, and that's my question - have there been enforcement actions against pilots for violating some OTHER part during an emergency? Not to be confused with "they were violating it anyway when they took off, and just happened to have an emergency on that flight."
 
RussR said:
How would this differ from the VFR-only pilot who is on top of a layer, in the clear, and has, I don't know, a fuel leak or engine fire or something, and descends through a layer of clouds?
Click to expand...
This sounds like a variation of an argument my dad and I had once or twice when I was flying single-engine charter for him. There used to be a Part 135 reg (I think it has since changed, but I’m too lazy to look it up either way) that said a single engine airplane wasn’t allowed to fly above a cloud layer if you couldn’t maintain VMC in the event of an engine failure. My dad defaulted to “an engine failure is an emergency, I can do anything I want,” but my position was that doing so would still be a violation of a reg prior to the emergency.
 
RussR said:
Or, I don't know, during an emergency you perform some maintenance on the airplane. That's Part 43.
Click to expand...
How about a helicopter pilot encounters an engine chip light in flight and makes an emergency landing in the median between a busy highway. All good. Since checking magnetic chip plugs are a preventive mx item, he checks the plug determines its fuzz, cleans it, jumps back in, and flies away.

Landing at the airport, a local ASI follows up on the emergency landing and finds everything is kosher except the pilot forgot to make his mx entry on the mag plug check and technically flew an unairworthy aircraft. Thankfully, a little remedial training and a reminder letter was all that was needed to rectify the Part 43 violation.

In my limited experience with this scenario, I’ve found people tend to get violated for actions outside of 91.3 after the emergency is over and not during the emergency per se. And don’t forget how ASRS fits into this as well.
 
brcase said:
This sounds like the same incident I am aware of.
Click to expand...
Not familiar with the one you mentioned, but have assisted with several involving federal public lands and aircraft "emergencies." Unfortunately, its not as rare as it should be.
 
RussR said:
That's kind of what I'm posing the question to find out. I mean, I can come up with examples, but I don't want the discussion to be about those particular examples, but more about the generic case. @Bell206 's statement is an interesting related situation as well.

Okay, I guess, for example, a typical VFR-only pilot inadvertently flies into IMC and declares an emergency. Could they be violated for various Part 61 rating and currency sections? How would this differ from the VFR-only pilot who is on top of a layer, in the clear, and has, I don't know, a fuel leak or engine fire or something, and descends through a layer of clouds? They aren't Part 61 IFR current. Or maybe a pilot who is not night current, has passengers, and plans to land during the daylight but has a landing gear issue and while troubleshooting it, the sun sets.

Or, I don't know, during an emergency you perform some maintenance on the airplane. That's Part 43.

Or you violate some provision of Part 93 (Special Air Traffic Rules).

Please don't get wrapped around any of my brainstormed examples, most of which are clearly stupid and SHOULD be within the PIC's authority. Just find any random Part that isn't 91 and construct a scenario, and that's my question - have there been enforcement actions against pilots for violating some OTHER part during an emergency? Not to be confused with "they were violating it anyway when they took off, and just happened to have an emergency on that flight."
Click to expand...
Part 91.3 isn't immunity for creating emergencies.
 
nauga said:
The dreaded emergency takeoff with passengers when you didn't get those three landings done in time.
Click to expand...
But wait, an emergency takeoff is not an in-flight emergency, is it :)
 
RussR said:
My question is, in practice, does this ever come up?
Click to expand...
Yes it comes up but it's rare. It's kinda part of the same concept as the interpretive gloss that the pilot can't take advantage of the protection if the pilot created the emergency. As someone said when I did a presentation on this years ago, the FAA can usually find some basis to claim the pilot create the emergency.

In practice, there's a bunch of discretion and except in extreme cases, the FAA is loathe to challenge a pilot's exercise of emergency authority. The reason is pretty obvious. The FAA wants you to declare the emergency and solve the in-flight problem rather than die and causing a bigger problem for everyone else. Better to declare an emergency to get some help and a fast way out when finding oneself in icing conditions than to worry about enforcement action later on while you plummet to earth in a giant icicle.

There are questions where it comes up though. I represented a pilot years ago who had a flame out in a single pilot cargo jet with no autopilot. I usually talk about it as an example of a reason to declare an emergency to avoid enforcement. in this one pilot didn't declare and there was a loss of separation as a result. Declaring would have avoided enforcement action altogether but once started, the issue became whether the pilot created the emergency by filing to switch the igniters from automatic to manual contrary to the POH emergency checklist.
 
asicer said:
King Air PIC dies in-flight and a PP-ASEL passenger has to land the plane?
Click to expand...

Well, that is kind of the extreme example of what I'm asking about though - the emergency happened, and in order to deal with it the (now) PIC violates a non-Part 91 rule (in this example Part 61 regarding ratings). Obviously in this case nobody is going to say the now-PIC did anything wrong.

But that's what I'm asking about, other (less-ridiculous) cases where perhaps the pilot WAS found in violation for something they did to resolve the emergency.
 
Bell206 said:
How about a helicopter pilot encounters an engine chip light in flight and makes an emergency landing in the median between a busy highway. All good. Since checking magnetic chip plugs are a preventive mx item, he checks the plug determines its fuzz, cleans it, jumps back in, and flies away.

Landing at the airport, a local ASI follows up on the emergency landing and finds everything is kosher except the pilot forgot to make his mx entry on the mag plug check and technically flew an unairworthy aircraft. Thankfully, a little remedial training and a reminder letter was all that was needed to rectify the Part 43 violation.

In my limited experience with this scenario, I’ve found people tend to get violated for actions outside of 91.3 after the emergency is over and not during the emergency per se. And don’t forget how ASRS fits into this as well.
Click to expand...
One of the reasons why I’m not thrilled with highway landings. While they can be fun, I get a chip and I’m screwed. FADEC issues being another one.
 
Lindberg said:
What rule are you worried about him violating?
Click to expand...
Nobody's "worried" about him violating anything, and nobody in their right mind would say he should be violated, but it's pretty clear in this scenario that the now-pilot is violating:

61.31c and d (not rated in the category and class), and possibly e, f, and g (endorsements required for a King Air)
If there were other passengers, 61.57 for landing currency in category and class
Possibly 61.113a, if the passengers are paying for the flight
Maybe some others.

Again, of course, this is a ridiculous scenario to anticipate that the hero pilot here would be charged with anything. I'm not asking that. But it does serve as an extreme example of the question I AM asking - in the course of resolving the emergency, the pilot "broke rules" that are NOT in Part 91, and therefore theoretically not covered by the 91.3 exemption.
 
midlifeflyer said:
Yes it comes up but it's rare. It's kinda part of the same concept as the interpretive gloss that the pilot can't take advantage of the protection if the pilot created the emergency. As someone said when I did a presentation on this years ago, the FAA can usually find some basis to claim the pilot create the emergency.

In practice, there's a bunch of discretion and except in extreme cases, the FAA is loathe to challenge a pilot's exercise of emergency authority. The reason is pretty obvious. The FAA wants you to declare the emergency and solve the in-flight problem rather than die and causing a bigger problem for everyone else. Better to declare an emergency to get some help and a fast way out when finding oneself in icing conditions than to worry about enforcement action later on while you plummet to earth in a giant icicle.

There are questions where it comes up though. I represented a pilot years ago who had a flame out in a single pilot cargo jet with no autopilot. I usually talk about it as an example of a reason to declare an emergency to avoid enforcement. in this one pilot didn't declare and there was a loss of separation as a result. Declaring would have avoided enforcement action altogether but once started, the issue became whether the pilot created the emergency by filing to switch the igniters from automatic to manual contrary to the POH emergency checklist.
Click to expand...
Thanks Mark, I was hoping you'd chime in. That's an interesting case. Not exactly what I was looking for, but pretty close to it. I would actually like to read more on that one, do you know if the case is publicly available?

I do certainly hope that your second paragraph is true!

You brought up another FAR I hadn't considered, too, Part 23/25, which would be where you exceed an aircraft limitation or I guess otherwise don't comply with the POH/AFM when dealing with the emergency.
 
RussR said:
Nobody's "worried" about him violating anything, and nobody in their right mind would say he should be violated, but it's pretty clear in this scenario that the now-pilot is violating:

61.31c and d (not rated in the category and class), and possibly e, f, and g (endorsements required for a King Air)
If there were other passengers, 61.57 for landing currency in category and class
Possibly 61.113a, if the passengers are paying for the flight
Maybe some others.

Again, of course, this is a ridiculous scenario to anticipate that the hero pilot here would be charged with anything. I'm not asking that. But it does serve as an extreme example of the question I AM asking - in the course of resolving the emergency, the pilot "broke rules" that are NOT in Part 91, and therefore theoretically not covered by the 91.3 exemption.
Click to expand...
No...PIC being unconscious doesn't mean a passenger is promoted to PIC in violation of Part 61.
 
RussR said:
It is often stated that a pilot can break "any" rule to deal with an emergency. I heard a pilot say this just the other day. Of course, this isn't technically true.

91.3 specifically says you can deviate from any rule of this part.

(b) In an in-flight emergency requiring immediate action, the pilot in command may deviate from any rule of this part to the extent required to meet that emergency.

"This part", of course, is Part 91. Other parts are not specifically covered by this paragraph.

My question is, in practice, does this ever come up? Are there cases where a pilot dealt with an emergency, but was still found to have violated some other FAR (like Part 61, 95, 97, 121, 135, etc.) for actions they performed while dealing with the emergency?
Click to expand...

Ok, I will play devils advocate.

What in-flight emergency would require violating a Part 61 section?
 
Clip4 said:
Ok, I will play devils advocate.

What in-flight emergency would require violating a Part 61 section?
Click to expand...

If you've read any of the previous posts in this thread, there have been several suggestions.

Consider a non-night-current Private Pilot takes off with passengers 2 hours before sunset for an hour flight. Has a gear extension problem. While working it, the sun sets, and it's now an hour past sunset. The pilot finally fixes the gear problem (or doesn't, it really doesn't matter) and lands. That's a violation of 61.57 for night currency, and is not "covered" by 91.3 emergency authority. The pilot could have landed earlier, in the day, and been legal, but that may have been riskier due to not having resolved the gear problem.

This example scenario isn't even that contrived, it's pretty realistic. Would anybody expect him to be watching the clock, and make sure to land early enough to be legal, regardless of the status of the gear problem?

I think we've all heard of situations where the pilot gets out some tools and starts to, say, disassemble the floor to get to the gear motor to free it or something. That's completely reasonable, and expected, but is Part 43 maintenance, also not covered by 91.3.

Do you know of a case like this, or similar, where perhaps the pilot WAS violated for not complying with another FAR during the emergency?
 
RussR said:
61.31c and d (not rated in the category and class), and possibly e, f, and g (endorsements required for a King Air)
If there were other passengers, 61.57 for landing currency in category and class
Possibly 61.113a, if the passengers are paying for the flight
Maybe some others.
Click to expand...
If the actual PIC dies in flight, and a passenger lands the plane, is the passenger acting as PIC for the flight?
 
Last edited:
RussR said:
If you've read any of the previous posts in this thread, there have been several suggestions.

Consider a non-night-current Private Pilot takes off with passengers 2 hours before sunset for an hour flight. Has a gear extension problem. While working it, the sun sets, and it's now an hour past sunset. The pilot finally fixes the gear problem (or doesn't, it really doesn't matter) and lands. That's a violation of 61.57 for night currency, and is not "covered" by 91.3 emergency authority. The pilot could have landed earlier, in the day, and been legal, but that may have been riskier due to not having resolved the gear problem.

This example scenario isn't even that contrived, it's pretty realistic. Would anybody expect him to be watching the clock, and make sure to land early enough to be legal, regardless of the status of the gear problem?

I think we've all heard of situations where the pilot gets out some tools and starts to, say, disassemble the floor to get to the gear motor to free it or something. That's completely reasonable, and expected, but is Part 43 maintenance, also not covered by 91.3.

Do you know of a case like this, or similar, where perhaps the pilot WAS violated for not complying with another FAR during the emergency?
Click to expand...


For the purposes of 61.57 a pilot does not violate that regulation until 1 hour after sunset. If I have a gear problem, completing the checklist in the POH takes 1 lap around the pattern. If you pushing night that close, it mot good decision making, Nor is conducting a gear up landing at night vs when there is some light left.

And getting out some tools a working on a plane in flight after sunset is really dumb.
 
RussR said:
Thanks Mark, I was hoping you'd chime in. That's an interesting case. Not exactly what I was looking for, but pretty close to it. I would actually like to read more on that one, do you know if the case is publicly available?
Click to expand...
It is not. It was dropped based on the contents of the aircraft checklist.
 
Haven't there been cases of the FAA having heartburn over pilots overflying 'suitable' airports during an emergency where they're instructed by checklist to land at the nearest suitable?
 
kayoh190 said:
Haven't there been cases of the FAA having heartburn over pilots overflying 'suitable' airports during an emergency where they're instructed by checklist to land at the nearest suitable?
Click to expand...
I’m aware of one where the “nearest suitable airport with respect to time” per Part 135 was considered to be violated because the pilot mentioned that his choice of landing airport included the ability to get maintenance.
 
kayoh190 said:
Haven't there been cases of the FAA having heartburn over pilots overflying 'suitable' airports during an emergency where they're instructed by checklist to land at the nearest suitable?
Click to expand...
Not even a checklist issue. The FAA has interpreted

91.7 (b) ...The pilot in command shall discontinue the flight when unairworthy mechanical, electrical, or structural conditions occur.​

very strictly. The pilot must land "at the first available point consistent with the safe operation of that aircraft." In one, a pilot had erratic oil pressure in a Metroliner engine near Laramie, WY. The pilot shut down the engine and continued to Denver. A 30-day certificate suspension was upheld by the NTSB (although the penalty was waived under the ASRP).
 
RussR said:
That's an interesting case regarding PIC decisions and authority. Especially as there's a dissenting opinion by one of the board members at the end.
Click to expand...
It seems so sensible that a pilot with what the pilot thinks of as a non-critical issue is prohibited from the decision to head somewhere where it can be repaired. I would say that 98% of the pilots out there still think it's ok to bypass an unattended airport to get to somewhere where the issue can be fixed. Most of us have probably done it at one time or another.
 
Lindberg said:
If the actual PIC dies in flight, and a passenger lands the plane, is the passenger acting as PIC for the flight?
Click to expand...
It depends. Was the takeoff pilot a CFI? If so, does his CFI status render the flight as "dual received" time once the passenger takes the controls? Does the pilot's CFI status terminate at death, or at the end of his last flight?
 
RussR said:
If you've read any of the previous posts in this thread, there have been several suggestions.

Consider a non-night-current Private Pilot takes off with passengers 2 hours before sunset for an hour flight. Has a gear extension problem. While working it, the sun sets, and it's now an hour past sunset. The pilot finally fixes the gear problem (or doesn't, it really doesn't matter) and lands. That's a violation of 61.57 for night currency, and is not "covered" by 91.3 emergency authority. The pilot could have landed earlier, in the day, and been legal, but that may have been riskier due to not having resolved the gear problem.

This example scenario isn't even that contrived, it's pretty realistic. Would anybody expect him to be watching the clock, and make sure to land early enough to be legal, regardless of the status of the gear problem?
Click to expand...
I was taught that you should not plan a flight where your emergency fuel reserves would put you into non-compliance with passengers aboard. What's your emergency checklist procedure, and how long are you going to be flying around in the pattern trying to sort it out?

Yes, I can absolutely see having a plane full of fuel for 4 hours and only expecting to be aloft for 45 minutes, landing 30 45 minutes before civil twilight....but I have a sense that the FAA won't see it that way, even in an equipment failure scenario.
 
You must log in or register to reply here.
Back
Top