An Icing Encounter — A Former FAA Inspector Replies

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Scott Puddy's recent article for AVweb,

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.

How Things Really Aren't

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.

The Airplane ...

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.

... Rules and Interpretations

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.

"K.I.S.S."

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.

"Forecast? We Don't Need No Stinking Forecast!"

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?

Safety Is a Decision, Not a Prayer

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.

Conspiracy Theory ...

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.

... Vengeance, or "Just Desserts"?

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.

You Got What You Paid For

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.

"Prosecutorial Discretion"

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.

The "Rabbit's Foot" Case

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.

Get on with Life

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.