February 7, 2001 An Icing Encounter — A Former FAA Inspector Replies |
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Scott Puddy's recent article for AVweb,
February 7, 2001
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| About the Author ... |
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Eric Jaderborg holds an ATP
certificate with seven type ratings, a Commercial Seaplane rating, and a
Private Glider rating. He has logged over 8,000 hours in a 22-year aviation
career that includes eight years as an airline pilot and, most recently, 10
years as an FAA Operations Inspector. He is an active CFI with Airplane-Single
Engine, Instrument, and Multiengine ratings. He lives with his wife, a fellow
pilot, in Arkansas. Together, they own and fly a vintage Aeronca
Champ.
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| EricJ@AVweb.com |
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  Scott Puddy's
final installment in his icing
trilogy sure was exciting, wasn't it? Who doesn't love a simple tale of
Good versus Evil? Through able, one-sided storytelling, outright error and the
liberal use of conjecture where the facts fail, Mr. Puddy obligingly spins up
the moribund saga of Administrator v. Watkins into a life-like
Hollywood epic reminiscent of Luke Skywalker's battle with Darth Vader and the
vicious Emperor Palpatine — played, for the moment, by myself and FAA staff
attorney Mark Camacho.
If only it were true. If only the bungling inspector and his legal attack
dog were really as malevolent as they seem. If only they really were driven by
the sinister motives we all love to hate. We sure could sleep better at night
with our simple-minded loathing of an enemy we could identify, caricature, and
just ... well, hate. Be honest, now — couldn't we?
But life isn't that simple, and neither is this fairytale. And all the
conjuring in the world isn't going to make it so.
 Mr. Puddy states that the Cessna 402B
Chris Watkins flew was "fully deiced," but that it was "born" too early to
achieve certification for its deicing systems. This implies that the status of
the aircraft's ice equipment was an accident of birth rather than a matter of
actual fact, leaving the impression that it was equipped similar to certified
aircraft, just not "pedigreed." Not so, however. I looked at that airplane
personally. While it had anti- and deicing systems installed on each of the
components required by FAR 135.227(b), it did not have the equipment that would
have allowed it to even attempt icing certification. The difference was not
merely technical, it was actual. I agree, by the way, that the distinction
blessed by FAR 135.227(e) allowing a departure into severe icing — a
condition that everyone acknowledges can quickly overwhelm any aircraft — is
illogical. It's an issue that is so far unresolved.
In his response to a reader's
letter, Mr. Puddy cites regulatory history, FAA legal interpretation, and
advisory literature surrounding the interpretation of FAR
135.227. I must agree with Mr. Puddy — against the writer who challenged
his interpretation of that rule — that the rule has long been interpreted by
the FAA to allow flight into "known or forecast light or moderate icing
conditions" under both VFR and IFR conditions. As far as I can tell, however,
these sources do not resolve the glaring inconsistency of pitting FAR
135.227 against the equally weighty FAR 91.9,
which requires compliance with placards and limitations — including
limitations prohibiting flight into known icing conditions — as well as the
specious notion that an under-equipped aircraft is "safe" simply because it is
too old to have a placard. (Mr. Puddy, by the way, cites an FAA Central Region
Newsletter as an "interpretation." While those newsletters are highly
informative, they are not publicly distributed or sent through official review
channels, and cannot be relied upon as constituting official FAA policy or
interpretation.) It's an issue that has caught the FAA with its pants down —
advising operators to engage in a practice that the NTSB has consistently
ruled to be illegal. While it is not unprecedented for the FAA to lift certain
regulatory restrictions on operators through the issuance of ops specs, MELs,
and their attendant restrictions, the agency doesn't use the Advisory Circular
system to give blanket authority to break rules. Thus, the references cited in
Advisory Circular 135-9 are nothing more than an unresolved screw-up at the
FAA.
Mr. Puddy has lifted out of the Eighth Circuit's decision the one bone they
threw Mr. Watkins — "understandable confusion" — as though this were some
sort of admission (which it is not) that Chris Watkins was justified in
elevating the "form" of the forecast over its "substance." This is like saying
that cyanide is only allowed to be deadly when it comes in a bottle with a
skull-and-crossbones on it. If it's in a Coke bottle, however, it isn't
legally allowed to pose a threat, even if you know about it. Just absurd!
 Anyone in the courtroom on the day we
argued the case might have recognized the moment when Judge Mullins realized
that there was no other possible decision than the one he made. We played the
tape of the weather briefing. It was a "smoking gun." The Flight Service
Station briefer never used the term "AIRMET." She told Mr. Watkins that there
were "flight precautions" along his route for "isolated severe mixed icing
below 6,000 feet in light freezing drizzle [and] light freezing rain." When he
heard the word "severe" the judge visibly sank in his seat. The case was done
and over, then and there. All the rest of the testimony and argument was
wasted breath. When the judge returned his verdict, he specifically noted that
Chris's failure to heed the briefer's warning simply because it was in a
format he didn't like was — by itself — a careless act. Thus, the whole
issue of AIRMET versus SIGMET was, and is, a red herring: A quasi-legal
construct used to rationalize a decision that wasn't supported by the plain
facts. He didn't need a law degree to make a decision that day. All he needed
was an understanding of one simple English word and a willingness to face the
reality of it.
Mr. Watkins's attempt to use pilot reports in combination with FAR 135.227(f) to negate the forecast was also a red herring.
Mr. Puddy notes that "the decisions of record as of February, 1995, suggested
that a pilot report of actual conditions would supersede [a forecast]." I
would like to see those decisions. As late as 1993 the NTSB specifically
repudiated the use of PIREPS to negate icing forecasts in Administrator v. Groszer. Had the weather truly
cleared-out of Kansas on Valentine's Day, 1995, ahead of any official
amendment to the forecast, Mr. Watkins might have had an argument under that
rule. But it hadn't. It was a lingering winter weather system that blanketed
the entire state. Reports of freezing precipitation were coming in off-and-on
from various, widely-scattered reporting stations. Indeed, Wichita reported
freezing drizzle only 11 minutes after Mr. Watkins departed.
If you remain unconvinced of the weakness of this decision, ask yourself
this: What would have been the proper decision if he had been delayed another
11 minutes — or if the freezing rain at his departure point had started to
fall 12 minutes earlier? What would have been an appropriate judgment of the
forecast then?
The fact that Chris Watkins was carrying cargo (the property of other
people who paid to have it delivered safely), not nuns, is irrelevant. It is
equally irrelevant that the flight did not experience actual severe icing. As
an attorney and as a pilot, Mr. Puddy knows that safety standards are to be
applied before action is taken, not afterwards. In spite of all his wrangling
with PIREPS, AIRMETS, and SIGMETS, Mr. Watkins could not have known prior to
takeoff whether he would actually encounter the severe icing he had clearly
been warned about. He took an illegal chance. The accident records are full of
people who took similar chances, and lost everything. I'm glad Mr. Watkins is
lucky enough to be alive. But "luck" isn't what professional decisions are
made of.
 The notion that the FAA should have
declined to prosecute this violation because it didn't result in an
appreciable degradation of safety is tantamount to saying that the only
violations that endanger life and property are those that actually cost lives
or property. If the same principle were applied to low-flying complaints, the
agency would ignore reckless buzzing until the subject aircraft actually hits
a house. Likewise, altitude and clearance busts would be filed only when they
result in a near, or actual, mid-air collision. Safety standards applied in
hindsight are no safety standards at all. Mr. Watkins was prosecuted for his
decision, not for the results of that decision.
I have no knowledge of any report filed by Suburban Air Freight that their
competitor was deliberately falsifying severe icing reports in order to beat
the competition. The first I learned of that was when I read Mr. Puddy's
article. But it is ludicrous to suggest that the forecast on February 14,
1995, might somehow have been influenced by severe icing PIREPS allegedly
filed by Central Air Southwest, unless you're credulous enough to believe that
Central Air somehow falsified the official weather observations at an
assortment of reporting points in an area over which they had no control —
some of which were automated stations. The fact is, freezing precipitation
often comes and goes without much warning, and forecasting technology still
isn't able to pinpoint it. That's what makes such a forecast so serious.
I am frankly dumbfounded at Mr. Puddy's passed-along suggestion that the
FAA prosecuted Chris Watkins in order to exact retribution for its failure in
FAA v. Towner, dba Central Air Southwest. Even the most devout
anti-government partisan should be able to recognize this as pure baloney. The
only support he offers for this conclusion is his own inference drawn from an
"inadmissible" statement made by Mr. Camacho at the opening of the proceedings
against Chris Watkins — a reference to Watkins's earlier accident when he was
working for Central Air Southwest. He offers absolutely no support for the
suggestion that the prosecution arose from Watkins's "failings in his
subsequent state's evidence testimony at the Central hearing." Indeed, there
can be no support for this because the failure of the FAA's case against
Central Air had nothing whatever to do with Chris Watkins's testimony. (More
about that case later.)
This is irresponsible innuendo at its worst. Mr. Camacho's statement is no
more evil in its portent than any other attempt by a practicing attorney to
tip the scales in favor of his case. Let's face it: Courtroom dialogue is
nothing more than a civilized bar fight. Lawyers sling this sort of rhetoric
all the time — on both sides. We may not like it, but it doesn't necessarily
carry some deep, sinister meaning. What Mr. Puddy — or his underlying source
— alleges, however, is that one or more persons on the public payroll were
guilty of a serious breach of ethics and abuse of authority. Now that the
reader has been led to believe this insinuation, he/she is entitled — as a
taxpayer — to know if it's true. Did we indeed spent tax dollars (in official
time and effort) roasting Chris Watkins out of vengeance? The answer is an
unqualified, categorical, and vigorous "no." And I call upon Mr. Puddy to
withdraw this reckless accusation.
 The investigation of Chris Watkins
arose from a complaint — actually, a series of complaints — filed against
him. I don't know of "over a hundred reports of purported violations" filed
against Chris Watkins, I only knew about a handful of complaints our office
received involving three different weather systems in the winter of 1995. When
I was assigned to investigate them, I figured we were being sent on a wild
goose chase by Watkins's former employer. What readers need to understand,
however, is that once a complaint is filed, the inspector assigned to it does
not have the option to ignore it. The taxpayers pay inspectors to investigate,
to find out what's true and what isn't. So we did what we're paid to do. It
was not my business to get in the middle of a competitive dispute between two
operators. It wasn't the first time I had to investigate the complaint of one
FAR 135 operator against another, and it wouldn't have been my first wild
goose chase if the whole thing turned out to be false.
In the Watkins investigation I poured over reams of weather, listened to
hours of tape, talked to Mr. Watkins employer, examined the airplane, and
researched the issues. In short, I did everything I was expected to do —
everything anyone who is reading this would have done if they'd been in my
position. I was obviously familiar with Chris Watkins's history with Central
Air Southwest, and with the previous case against that company, but I could
not allow that to cloud the issue before me. The only issue that mattered was
whether or not Chris Watkins did what he was alleged to have done. If Chris
Watkins, or his new employer, had walked into my office and filed a complaint
against a Central Air pilot, I would have done the very same thing. But they
did not. I received no other such complaint that winter from anyone.
I am happy to tell you that two of the three reports turned out to be
false, and were dismissed. The one that turned out to be true resulted in the
celebrated case of Administrator v. Watkins. Mr. Watkins was not
persecuted for his Central Air Southwest accident any more than you or I might
be "persecuted" because we got caught speeding twice in the same school zone.
We either did it, or we didn't. Not all — not even most — speeders get
caught. When they do, they generally pay their fine without making a federal
case out of it.
I don't completely understand Mr. Puddy's use of the term "prosecutorial
discretion" in the case of Chris Watkins. But then I'm not a lawyer, either.
In all the general aviation cases I investigated, the only ones I can think of
that were dropped due to "prosecutorial discretion" were the very cases
against Chris Watkins and his fellow witnesses after the failure of the FAA's
case against Central Air Southwest. They were dropped — not as a quid pro
quo -- but because it would have been unduly punitive to pursue cases
against airmen that we couldn't make against the company. If anyone had a
desire to extract a pound of flesh from Chris Watkins, that would have been
the time to try.
Other than those, I can't think of a single general aviation case that I
was involved in where the agency simply decided not to prosecute after an
official investigation found evidence to support a violation. Cases were
dropped or pursued based upon facts and the law. We did negotiate sanctions
with respondents — that's the reason most cases never go to trial. We also
had some heated internal arguments about the regulations. When the facts
didn't support a case, we dropped it. We walked away from many violations we
couldn't prove. But when a violation did take place, and we could prove it, we
took action — even if it was only a Warning Notice. Thus, the only
"discretion" I knew about was exercised in imposing a sanction. At the FSDO,
as well as at the academy, we were repeatedly schooled on this
point.
Finally, a word about FAA v. Towner. Mr. Camacho's case may have
been "simple," as Mr. Puddy asserts, but it was far from "compelling." Until
Mr. Puddy suggested it, I had no idea that the outcome of the case sent any
shock waves through the aviation community. In retrospect, I think it was a
dumb case, full of misunderstanding and wasted argument, and resulting in a
ridiculous decision handed down by a DOT (not NTSB) law judge who
clearly did not understand the implications of his decision. The case was
dumb, not because we shouldn't have brought it, but because we overlooked our
best chance to win it.
 In truth, Towner wasn't even Camacho's
case. He inherited it at the last minute from another staff attorney who was
under terrific stress, suffering from terminal cancer, and who died before the
case went to court. The original brief was full of inapplicable charges which
the FAA moved to drop on the first day of the trial. In the end, the only
argument Mr. Camacho had left to him was to try to convince a non-aviation
judge that Icex and glycol poured over an inert wing does not constitute
"anti-ice" within the meaning of FAR
135.227. The case was lost, not because of any failure of Mr. Watkins's
testimony, but because the FAA — myself included-failed to put forth what
would have been its most compelling case.
Anyone who reads the decision in the Towner case will recognize immediately
that — according to the judge — all anyone needs to do in order to equip an
aircraft for icing conditions under FAR
135.227
is to name something "Anti-ice Whatever," install it, convince the FAA that
whatever they put on the airplane won't interfere with the flight
characteristics, and STC it. Who needs boots? Under this decision, I could
hang a rabbit's foot from the magnetic compass, call it an "Anti-ice
Talisman," STC it on a "non-interference basis," refigure the weight and
balance, and I'm good to go. Ridiculous!
As I said, the best case in Towner was never made. It shouldn't have
been a FAR 135 case at all. All the airplanes in that case were placarded
against flight into "known icing conditions" and we had a clear nexus between
the pilots and the company on the night the flights took place. At least one
of the airplanes departed into an area of forecast severe icing (not Watkins).
Had we simply filed a case under FAR 91.9(a) as well as 91.13(a) we could have
relied on the NTSB's long-standing decision in Administrator v. Bowen
(1974) that "known icing" means "icing conditions [which are] reported or
forecast in reports which are known to the pilot, or of which he should
reasonably be aware." Now that would have been a "simple and compelling"
case.
Most of us would change at least something we've done if our foresight were
as clear as our hindsight. If I had it to do over, for example, I would have
called in sick on my birthday in 1995 (yes, Valentine's Day), and let someone
else handle the case of Chris Watkins. In the face of overwhelming evidence, I
can't believe we're still arguing about a guy who made a serious mistake,
materially compromised safety, got caught, and lost his case on the merits.
Just that simple. I'm sure that Chris Watkins is a good pilot today, and I
wish him well wherever he is flying. I hope he has a long and prosperous
career. He is indeed fortunate that he suffered no sanction, thanks to the
timely filing of a NASA report. But if he wants to restore his "damaged
reputation," I think that the best way to do that would be to stop trying to
re-write the history of this "undead case." It's time to drive a wooden stake
through its heart and move on.
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