An Icing Encounter — PIC Judgment and Prosecutorial Discretion

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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.

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.)

Thorny Dilemmas

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.

The Uneventful Flight

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.

Administrator v. Watkins

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.

And Now ... the Rest of fhe Story ...

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.

The First "Central" Issue Why the Complaint?

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....

The Second "Central" Issue Why the Prosecution?

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.

Aftermath

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.