January 16, 2002 An Icing Encounter — PIC Judgment and Prosecutorial Discretion |
|
An Airline Transport Pilot is still trying to live down his uneventful landing following a momentary encounter with light-to- moderate icing in a fully de-iced twin-engine cargo plane. By all accounts (except the FAA's, of course) he played by the rules and exercised his good judgment to assure that it was safe to initiate and complete the flight. Nevertheless, the FAA elected to prosecute him and won. How could that be? AVweb's Scott Puddy winds up his series on in-flight icing with this in-depth look at how the FAA exercises its discretion in such cases.
January 16, 2002
  It was six
o'clock on Valentine's Day morning, 1995. Chris Watkins had places he'd rather
be than a Wichita, Kan., hotel room and company he'd rather keep than his
DUATS terminal as he watched ice pellets dance down onto the cars outside.
Chris was an experienced ATP-rated pilot for Suburban Air Freight, a student
of meteorology, and a survivor of a prior unsuccessful encounter with
unforecast severe icing. Chris knew that he wasn't going to make his 7:28 a.m.
scheduled departure time. He also knew that, if he ever were able to depart
Wichita, it would be one of those "challenging" flights to Great Bend, Ind..
His equipment for the flight was a fully-deiced, twin-engine, turbocharged
Cessna 402B. A proven all-weather airplane, the 402B had all the deicing
equipment specified in FAR 135.227(b) and could be legally flown under Part 135
into known or forecast moderate icing conditions. However, the CE-402B was
born prior to the implementation of certification for deicing "systems." It
therefore had not been "known-icing" certified in accordance with Section 34 of
Appendix A to Part 135 and could not legally be flown into areas where
severe icing was forecast. (The logic of that regulatory distinction is
frequently questioned because, by definition, a "known-icing" certified
airplane would be equally incapable of surviving a "severe icing"
encounter.)
 This particular Valentine's Day Chris
Watkins was bestowed with buckets of thorns (as in thorny dilemmas). In
addition to the dismal conditions outside the window, the forecast weather for
all of Kansas included an AIRMET for isolated severe mixed icing below 6,000
feet in light freezing drizzle or light freezing rain. A legal forecast for
severe icing would ground the CE-402B. As the Eighth Circuit Court of Appeals
would later acknowledge, this particular forecast nevertheless caused Chris to
be "understandably confused" because forecasts for "severe" icing are supposed
to be disseminated in SIGMETs [AIM 7-1-5.e].
AIRMETs [AIM 7-1-5.h] are used expressly to communicate forecasts for
widespread "moderate" icing. In the ordinary course of things, Chris could
launch into icing conditions forecast by an AIRMET, but not icing conditions
forecast by a SIGMET.
A law degree, although not listed as a prerequisite for a pilot's
certificate, would have come in handy for Chris as he wrestled with the
go/no-go decision. Given the limitations of his equipment's certification and
the prevailing forecast, there were two circumstances that would allow him to
depart Wichita. First, if there was no SIGMET for severe icing and the
erroneous reference in the AIRMET were determined not to be a legal forecast, FAR
135.227(e) would not prohibit the flight. Second, the "escape clause"
provisions of section 135.227(f) would permit the flight if "current weather
reports and briefing information relied upon by the pilot in command indicate
that the forecast icing condition that would otherwise prohibit the flight
will not be encountered during the flight because of changed weather
conditions since the forecast...."
Chris delayed his departure to investigate whether the proposed flight was
safe and, if so, legally permissible. The freezing rain in Wichita had lasted
for but 15 minutes. Chris obtained weather information through DUATS
(including the AIRMET for isolated severe icing) before receiving a telephone
briefing. The briefer reiterated the information that Chris had obtained
through DUATS and confirmed that no SIGMET had been issued. Chris thereafter
constantly monitored the DUATS and placed multiple calls to flight service and
the Wichita control tower to obtain updated weather and pilot reports. He also
repeatedly contacted the automated weather service at Great Bend to check
destination weather. Finally, he discussed the weather and the potentially
applicable regulatory restrictions with his employer who concurred in Chris's
ultimate decision.
 Freezing rain produces icing, but not
necessarily severe icing. The rate of ice accumulation depends on the volume
of liquid moisture (the rate of precipitation and the size of the drops). (See
my first article in this series, "Icing — Taking Adequate
Precautions.") Drizzle or light rain consists of relatively small
numbers of small drops of moisture and usually produces only light or moderate
icing, not icing that accumulates so rapidly that "use of deicing/anti-icing equipment fails to reduce or control
the hazard."
Given the wintertime upslope conditions with uniform tops at 6,000 MSL
across Kansas and a 600 foot (2,000 MSL) ceiling at Wichita, the cloud layer
was about 4,000 feet deep. Departing commercial aircraft were exposed to a
light to moderate volume of liquid moisture for approximately 2-1/2 minutes.
Consistent with those conditions, the initial pilot reports from aircraft
departing Wichita were for light or moderate icing. Subsequent pilot reports
of no icing on climb-out signaled that the conditions had
passed.
Chris determined that the planned flight was both legal and safe. Chris
believed that the prohibitions of section 135.227(e) did not apply to his
flight because the AIRMET could not trigger a regulatory prohibition against
flight in a fully-deiced airplane. He also believed that the subsequent pilot
reports of no-icing on departure superseded the forecast for "isolated severe
icing" at Wichita by operation of section 135.227(f). At cruise altitude, he
would be clear of the forecast conditions. He could confirm that severe icing
conditions were not present at Great Bend prior to commencing his approach. He
did not anticipate a problem in completing the flight at his intended
destination. He had good cause to believe that the forecast for "isolated"
severe icing all across the state stemmed from "isolated" reports of severe
icing that were not only erroneous, but intentionally so (more on this later).
Chris departed Wichita for Great Bend at 8:14 a.m.
Chris obtained destination weather, including recent pilot reports, prior
to beginning his approach into Great Bend. As he had expected, there was light
to moderate icing on the approach. His CE-402B was both equipped and certified
for flight in those conditions. Chris therefore elected to shoot the approach
and land. He encountered light-to-moderate icing conditions on the final 800
feet of the approach and landed uneventfully. In honor of the unprecedented
reference to "severe icing" in an AIRMET, Chris filed a NASA ASRS form. Another day
in the life of a midwest cargo pilot — a difficult flight conducted safely
and successfully without incident.
 Notwithstanding the successful
conclusion of the February 14, 1995, cargo flight, a complaint was filed (more
on this later) that the FAA was required to investigate. Field personnel
conducted an investigation and recommended that enforcement proceedings ensue.
The Administrator issued an Order of Suspension on December 30, 1996, charging
Chris with violating section 135.227(e) by flying an airplane not certified
for flight in known icing conditions into an area where severe icing was
forecast. The Administrator also charged that Chris had acted carelessly or
recklessly so as to endanger the person or property of another in violation of
section 91.13(a). An NTSB Administrative Law Judge (ALJ) affirmed the order of
suspension on August 14, 1997. Following Chris's appeal, the
NTSB issued an Opinion and Order affirming the Administrative Law Judge's
decision on June 12, 1998. Finally, some four and a half years after the
uneventful landing in Great Bend, the Eighth Circuit Court of Appeals denied Chris's petition for
review on June 3, 1999.
The resultant legal determinations were: (1) despite its more restrictive
definition, an AIRMET can forecast severe icing within the meaning of section
135.227(e); and (2) a "mere pilot report" of no-icing is not a report from an
official weather source that triggers the "escape clause" provisions of
section 135.227(f). By virtue of having filed a NASA ASRS form, Chris
escaped the penalty, but not the violation.
The legal determinations are supportable but neither was beyond question
when Chris was confronting the go/no-go decision. AIRMETs were not (and are
not) used to forecast severe icing and it hence was found that Chris was
"understandably confused" by the forecast. Further, the decisions of record as
of February 1995 suggested that a pilot report of actual conditions would
supersede a contradictory "mere" forecast. Chris's belief that he could rely
on pilot reports of actual conditions along his specific departure and
approach paths as superseding the blanket forecast for isolated severe icing
was also understandable. Nevertheless, Chris endured years of litigation, an
adverse outcome, and suffers the consequent stigma.
Even less obvious than the legal outcome was the decision to prosecute
Chris in the first place. In marked contrast to the facts discussed in the
reports of numerous other enforcement proceedings, Chris completed a rational
assessment of the safety of commencing, conducting, and completing the flight.
Further, the assessment was accurate. Still further, Chris was transporting
cargo, not the proverbial station wagon full of nuns. Why did the FAA elect to
prosecute Chris for conducting a carefully considered and successful cargo
flight under difficult conditions and in contravention of regulatory
prohibitions that were unclear at most? In this instance, the outcome of the
legal proceedings marks not the end of the story, but rather the beginning of
the rest of the story.
 Most FAA enforcement proceedings flow
from an accident, an incident, or a complaint, and this case was no exception.
There was no accident. There was no incident. But there was a complaint.
WHY?
In his appeal to the NTSB, Chris revealed that the allegations against him
"arose out of one of over a hundred reports of purported violations of flight
in icing conditions submitted to the Administrator by Central Air Southwest,
Inc." Central was a competitor of Subair in the bottom end of the freight
market. Central itself had recently survived an FAA enforcement proceeding in
which the Administrator had accused Central of systematically dispatching
aircraft into forecast icing conditions without any approved de-icing or
anti-icing equipment whatsoever. [FAA v. Towner dba Central Air
Southwest, 1994 FAA LEXIS 286.]
According to Suburban, Central thereafter switched to aircraft that were
"known-icing" certified. Suburban was operating a variety of larger planes
but, for the low-end market, was using the CE-402Bs that were fully de-iced
but not "known-icing" certified. The disparity in certification gave Central a
competitive edge. Central's pilots could launch into forecast severe icing;
pilots who flew for Suburban Air, or any of several other operators, could
not. Suburban Air has asserted that, during 1994 and 1995, Central's pilots
were systematically submitting pilot reports of "severe" icing when the actual
icing conditions (as observed by Suburban's pilots) were light or moderate.
Central followed up by systematically filing complaints against other carriers
who conducted flights while any possibility of severe icing was mentioned in
the forecast.
Central's motives for its alleged submission of false pilot reports and
disingenuous complaints are unknown, but there are at least three goals that
would have been served. First, pilot reports of severe icing would lead the
NWS to issue icing SIGMETs which would effectively ground Suburban and other
carriers. Second, since the FAA was required to investigate each and every
complaint, the flood of allegations would swamp the FAA's field staff, thereby
shielding Central from regulatory scrutiny. Third, the barrage of complaints
would make life miserable for the FAA's field investigators and extract a
pound of flesh in retribution for their recent prosecution of Central.
The FAA was well aware of Suburban's claims that Central was submitting
unfounded reports and spurious complaints. Suburban was the target of more
than 40 such reports and complained loudly and frequently to FAA officials.
Indeed, one night a Central Air flight on approach to Omaha was both preceded
and followed by Suburban aircraft. The Suburban planes encountered only light
icing but the Central pilot issued a pilot report of severe icing. After all
three planes had landed, Suburban photographed the three aircraft to document
that none of them exhibited icing accumulations consistent with a severe icing
encounter. Suburban offered the photographs and statements to the FAA as
evidence that the Central pilot either required remedial training to learn
what "severe" icing is, or that he had intentionally submitted a false report.
In either case, Suburban asserted, Central's reports and complaints were not
credible.
As noted above, the complaint against Chris was filed by Central Air. If
Suburban's assertions are accurate, the complaint was probably filed for
reasons that bore no relation to the safety of his flight. Moreover, the
AIRMET for isolated severe icing in light rain or drizzle that prohibited
Chris may itself have been issued in error based on Central's inaccurate
reporting. As noted above, pilot reports are one of the factors that
forecasters consider in developing AIRMETs and SIGMETs. But wait, there's
more....
Okay, so Central Air may have been the cause of the forecast that was
inconsistent with both the AIM and the prevailing weather and was also the
author of the complaint that triggered the FAA's initial investigation. Still,
prosecutorial discretion lies with the FAA. How could Central have factored in
the FAA's decision to prosecute Chris?
Well ... prior to commencing his employment with Suburban, Chris flew for
Central Air Southwest. Central was transporting freight in all types of
weather in the 500- and 690-series Aero Commander. In 1989, Central had
developed its own anti-ice "system" to replace the pneumatic deicing boots on
its aircraft. It was a passive system consisting of hard, abrasive rubber
strips installed on the leading edges of the wings and tail. Prior to flights
in icing conditions, the pilots were to apply Icex or glycol to the rubber
strips. Central reasoned that the treated strips would prevent ice from
adhering to the aerodynamic surfaces. Since it was a passive system, it would
eliminate the problems associated with pilot error in operating a boot-type
deicing system. It would also be less expensive to maintain.
 On January 11, 1993, Chris conducted a
Central Air flight from Goodland, Kan. to Hays, Kan, in an Aero Commander 500B
equipped with the anti-icing strips. He encountered severe icing. Several
inches of ice quickly coated the plane. The flight terminated in a field short of Hays airport.
Several other Central flights concluded in similar fashion leading the FAA
to initiate enforcement proceedings against Central and several of its pilots,
including Chris. The investigation was conducted by Eric Jaderborg, a General
Aviation Operations Inspector with the Wichita Flight Standards District
Office. The prosecution was conducted by FAA counsel Mark Camacho. Meanwhile,
Chris had begun his employment with Suburban and agreed to be the
prosecution's star witness against Central.
The NTSB conducted hearings in September 1994. Mr. Camacho's case was
simple and compelling. Section 135.227(b) of the FARs prohibits Part 135
operations in areas of forecast or known light or moderate icing conditions
unless the aircraft is equipped with "functioning deicing or anti-icing
equipment." Although Central had obtained a supplemental type certificate
(STC) for installation of the rubber leading edge strips, that was issued
solely on a non-interference basis. The FAA had never approved the "system" as
a functioning anti-icing system. Indeed, a supplement to the AFM was issued
with the STC requiring that a placard be installed in each plane reading,
"THIS AIRPLANE IS PROHIBITED FROM FLIGHT INTO KNOWN ICING."
On September 26, 1994, five months prior to Chris's Valentine's Day flight,
the NTSB Administrative Law Judge (ALJ) issued a decision dismissing all
claims against Central. The ALJ noted that the FAA had the burden of proving
its accusations and ruled that Mr. Camacho had failed to prove by reliable and
substantial evidence that the rubber strips on the leading edges of Central's
Aero Commanders were not functioning "anti-icing systems" within the meaning
of the FARs. The decision shocked those in the aviation community who were
following the case. The decision also stunned the FAA prosecutors and the
phrase "Hell hath no fury..." found a new application.
As was the case in the Central Air Southwest proceeding, Eric Jaderborg
conducted the investigation into Chris's Valentine's Day 1995 flight and Mr.
Camacho was counsel for the FAA. It appeared to Suburban's representatives who
were actively involved throughout the case that Chris was being prosecuted not
for events that had transpired in February 1995, but for his flight in 1993
and perhaps for some failings in his subsequent state's evidence testimony at
the Central hearing. The record lends support to that conclusion. The first
evidence that Mr. Camacho attempted to introduce at the August 14, 1997,
hearing was that Chris had crash-landed a Central Air Southwest airplane with
a load of ice in 1993 and had escaped punishment for that incident.
Interesting trivia perhaps, but irrelevant and inadmissible in the ongoing
proceedings.
 The issue concerning the legality of
using an AIRMET to distribute a forecast for isolated "severe" icing is not
completely dead. Suburban has sent letters to a variety of government
officials including FAA Director of Flight Standards Nicholas Lacey, FAA
Central Regnion Flight Standards Division Manager Gregory Michaels, FAA
Regional Counsel John Curry and Senator Chuck Hagel, demanding that the FAA
revise the Aeronautical Information Manual's definition of "AIRMET" to conform
to the FAA's legal position that AIRMETs can forecast severe icing.
Suburban sold off its CE-402Bs and purchased known-icing certified Cessna
Caravans to replace them. The Caravans lack some of the systems redundancy of
the turbo-twins and are not as popular with the pilots (who are looking to
build multi-engine time — not single-engine turboprop time). But Suburban can
now launch when the conditions are safe, even if there is a blanket forecast
for isolated severe icing covering 2-1/2 states.
Chris left his employment with Suburban Air Freight (on good terms) and is
flying for another operator.
| This article is the third in a
series.
For a thorough discussion of what airframe
icing is, how it forms, where it comes from and what you can do to get
out of it, be sure to
check R. Scott Puddy's initial article, "Icing — Taking Adequate
Precautions."
For a discussion of the legalities
involved with flight in icing conditions, see Scott's article, "Flying Into Known Icing —
Is It Legal?"
Additionally, Eric Jaderborg, the
now-retired FAA inspector who investigated Chris Watkins' flight and
assisted in prosecuting this case, has written a response to this
article, available only here on
AVweb. |
|
Email this article
