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Eric Jaderborg |
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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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Nothing
sprouts an argument among pilots quicker than a regulation. And the bud bursts
into full flower when the argument is over the rules surrounding "known
icing conditions." A look at the history of this controversial phrase
reveals a strange mixture of clarity and contradiction and offers a set of
cautionary tales to those who would take naked, or scantily-clad, airplanes
into cold climes.
The Bowen Decisions
It may come as a surprise to some hangar debaters that the legal definition
of "known icing conditions" has been clearly laid down and
consistently upheld for at least 27 years. In 1974, an unfortunate commercial
pilot came before the National Transportation Safety Board to appeal an
unfavorable ruling he had received a few months earlier at the hands of an
Administrative Law Judge. Having crashed a Bellanca on the airport at Marion,
Ind., in December 1972, he had been judged guilty of careless operation when
he violated an aircraft operating limitation that prohibited flight into
"known icing conditions."
Although the cause of the accident was disputed at the trial, there was no
doubt that the airplane had ice on it when it hit the ground and that the
pilot had been briefed about a SIGMET for his route of flight forecasting
"isolated severe and mixed icing in clouds" and precipitation along
his route. In rejecting the airman's appeal, the NTSB determined that the
cause of the accident was irrelevant. It also didn't matter whether the flight
ever actually encountered icing. The mere fact that the pilot flew into an
area of forecast icing conditions in an unequipped aircraft was enough to
sustain a violation. In this landmark ruling the board announced: "We do
not construe the adjective 'known' to mean that there must be a near certainty
that icing will occur, such as might be established by pilot reports. Rather
we take the entire phrase to mean that icing conditions are being reported or
forecast in reports which are known to a pilot, or of which he should
reasonably be aware."\1 Thus the word
"known" refers not to the ice that you "know" about
because it is forming right now on some airplane somewhere, but to the
information available to the pilot before and during the flight — and that
might be any information, including a forecast.
This
principle was reaffirmed three months later when the pilot petitioned the
board for reconsideration of his case. This time he was joined by a prominent
aviation organization that supported his effort to have the ruling overturned.
Together, they argued that the board had erred in its definition of
"known icing conditions." In denying this petition, however, the
board noted that "to construe the phrase in question to mean that the
pilot of an aircraft not equipped with anti-icing devices could fly into an
area for which icing had been forecast, but for which there was no pilot
report of an encounter with icing, would be to render that phrase largely
meaningless and of little effect as a safety measure."\2
In its denial the board also inserted a footnote discouraging those who
would use qualifying phrases such as "chance of,"
"occasional," and "isolated" to weasel out of a
disappointing forecast. Their use, said the board, "is typical of the
manner in which [icing] is commonly forecast, and does not, in our view,
diminish the possibility of its actual existence to the point where a pilot
could advisedly fly an aircraft, unequipped with anti-icing devices, through
the area covered by such a forecast."\3
Bowen Becomes Doctrine — The Irmisch
Decision
Over the years, the NTSB has examined attempts to sidestep valid forecasts
in favor of other information the pilot liked better. In response, it has
raised its definition of "known icing" to the level of Holy Writ. In
1976, for example, the board ruled that a pilot was in violation of aircraft
limitations (i.e., a placard prohibiting flight into known icing conditions)
when he ignored a general area forecast for icing, believing that an AIRMET
specific to the eastern seaboard indicated that all the icing was expected off
his intended route. The airman departed from Niagara Falls, in extreme western
New York, and crashed his overweight airplane in icing conditions shortly
thereafter. In its discussion of the appeal, the board acknowledged that the
AIRMET "did not pertain to western New York," but asserted that the
larger, area forecast did apply, and was therefore limiting.\4
The area forecast combined with the fact that the pilot "knew" (or
should have known) about it, was enough to qualify as "known icing
conditions."
PIREPS Take a Back Seat — The Groszer Decision
In
1993, the board considered the appeal of another airman who flew into an area
covered by a SIGMET for occasional moderate to severe icing along his route
from Marquette, Mich., to Milwaukee, Wis. The airplane crashed just short of
the runway. The pilot argued that he was entitled to rely upon PIREP
information indicating that there was "no icing at the altitude and along
the route he planned." The board, however, disagreed: "It is not
within the respondent's discretion to pick and choose between the SIGMET and
anecdotal PIREPS." Furthermore, it said, "the icing threat need not
be blanketing the entire area at every altitude for it to be either known or
dangerous, nor does the lack of extensive PIREPs at [the pilot's] planned
altitude and along the planned route legitimize his action."\5
Thus, the board made it clear that the main value of a PIREP — at least where
icing is concerned — is to provide pilots of aircraft that are already fully
equipped for icing conditions with information that might be useful in
strategic flight planning. They do not give pilots an excuse to venture into
those conditions in unequipped, or even partially-equipped, airplanes.
Playing "Russian Roulette"
On February 14, 1997, 23 years after its original ruling, the NTSB sent a
cheeky valentine to a pilot who departed an Ohio airport in spite of weather
information he obtained through DUAT, which included a valid SIGMET warning of
the potential for severe icing along his route. To no one's surprise, the
flight terminated in a crash due to ice accretion. The airplane was destroyed
and two passengers were injured. Among other things, the pilot based his NTSB
appeal on the argument that the phrase "known icing conditions" is
unconstitutionally vague (in violation of his rights under the Fourteenth
Amendment), and that a charge of carelessness should not be sustained where
the pilot is accused of flying into prohibited conditions for which a
"precise definition" is not readily available. When it came up for
review two years after the accident, the board flatly rejected the appeal.
Referencing its precedent, the board asserted that the pilot had plenty of
information and guidance available to him to reach what should have been the
obvious conclusion that a flight in that airplane, on that day, and in that
place was a grossly unsafe act. In what appeared to be a calculated insult —
uncharacteristic of the legalistic language it usually employs — the board
referred to the crash landing as "consistent with [the pilot's] apparent
willingness to engage in a kind of weather Russian roulette…."\6
Similar to its previous rulings, the decision in this case was not related
to the outcome of the flight, but rather to the pilot's decision to operate
the flight into an area of forecast and reported icing, particularly in an
aircraft "whose manual advised against entering weather conditions in
which icing might occur."\7 This was
not a naked airplane — it was "bikini clad." In other words, it was
equipped with at least some anti- and deicing gear, but was not certified for
flight into known icing conditions. Thus, the board's highlighting of the
manufacturer's flight manual recommendations may presage an expansion of its
icing philosophy to embrace any aircraft that is poorly equipped for what may
lie ahead.
Footnotes — The "History of the Future"?
The footnotes to NTSB decisions often signal the direction of its movement,
and the "Russian roulette" decision is pregnant with possibilities.
In one footnote, the board toyed with the idea that "icing
conditions" may not be limited to an AIRMET or area forecast, but might
also refer to "an area in which the air temperature is forecasted to be
at or near freezing, such that any liquid moisture might collect as ice on an
aircraft moving through it...."\8 This
suggests that in some future case the board might broaden its doctrine to
include any briefing information that might indicate the presence of
ice-forming conditions, making it tough for any pilot who gets a decent
weather briefing to claim that s/he had an "inadvertent icing
encounter."
In
another footnote, the board rejected the pilot's argument that the absence of
aircraft limitations prohibiting flight into known icing conditions somehow
excused the pilot's decision. It also rejected the suggestion that a
manufacturer endorses operation in icing conditions simply because it supplies
instruction on the correct use of an aircraft's deicing equipment. (It was
this discussion that revealed that the aircraft involved in this case was at
least marginally equipped with anti- and/or deicing gear.) The fact that the
aircraft manual "advised against entering weather conditions in which
icing might occur" was enough to satisfy the board that the pilot was at
least careless, if not reckless.\9
In still another footnote, the NTSB tipped its hat to the testimony of an
FAA inspector "to the effect that no aircraft should venture into an area
of severe icing because severe icing means that, even as to aircraft certified
for flight into known icing conditions, the ice will accumulate faster than
deicing equipment can remove it."\10
In footnoting these items, the board may have signaled its readiness to
resolve a paradox in the regulations: Several of the rules allow pre-planned
operation of aircraft into known severe icing conditions, as long as those
aircraft are certified in accordance with certain criteria.\11
FAA literature, however, repeatedly defines "severe icing" as a
"rate of accumulation ... such that deicing/anti-icing equipment fails to
reduce or control the hazard."\12
Indeed, one of the agency's own advisory circulars warns that "pilots
flying airplanes certificated for flight in known icing conditions should be
aware that severe icing is a condition that is outside of the airplane's
certification icing envelope."\13
Considering that "forecasts" are also "known" once they
become available to the pilot, flight into an area of forecast severe icing
might someday be viewed under the law as flight into an uncontrollable
situation — therefore "careless" — especially if the AFM advises
against it, as it does in a number of large, ice-equipped aircraft. So far,
this extension of the board's reasoning has not been enshrined in case law,
but it wouldn't be wildly inconsistent with precedent to suggest that the
board would look with contempt on anyone who places an aircraft in harm's way
knowing that it might not be up to the challenge. The argument is begging to
be made, and one day some smart lawyer is bound to make it.
FAA: "Known" Vs. "Forecast"?
While the board has consistently upheld its interpretation of "known
icing conditions," the FAA has interpreted things differently. [For
reasons beyond the scope of this article, the relationship between the FAA's
power to interpret, and the NTSB's power to overrule those interpretations, is
in a state of flux. Caught in the middle of this maelstrom, of course, is the
individual airman.] FAA regulations and literature are full of references to
"known or forecast icing conditions," suggesting that there is a
difference. For example, FARs 91.527
and 135.227
do not require an aircraft to be "certified" in order to depart into
"known or forecast light or moderate icing conditions," as long as
anti- or deicing equipment of some sort is available to protect selected
components of the airplane. Such airplanes, however, often also carry a
placard prohibiting flight into known icing conditions, making them equally
subject to the restrictions of FAR 91.9
(required compliance with placards and limitations). Many other aircraft of
earlier vintage are marginally ice-equipped, but have never been positively
tested against any standard, and yet carry no published limitation because
none was required at the time the aircraft was put into service.
Weird Guidance
In
1981 — well after the board's 1974 decision — the FAA issued Advisory
Circular 135-9, "FAR Part 135 Icing Limitations," in an attempt to
alleviate confusion, and to provide air taxi operators with useable guidance.
This document — which is still in effect — only makes matters worse,
however, by endorsing a distinction between "forecast" and
"known" icing that is not recognized in NTSB case law, and by
conjuring up a third category it referred to as "actual" icing. In
part, it states that:
Aircraft equipped with functioning equipment…and a placard prohibiting
operation in icing conditions may depart on a flight when light or moderate
icing is forecast or reported to exist for the intended route to be flown.
However, continued flight in actual icing conditions is not permitted since
such flight does not comply with the placard or the operating limitation in
the aircraft flight manual.\14
Ironically, this Advisory Circular only tells the pilot how to paint
himself into the corner, not how to get out of it. Nevertheless, the FAA
further advises the operators of older aircraft that:
Aircraft equipped with functioning equipment…and not placarded
restricting operations in icing conditions may fly under IFR or VFR rules in
known or forecast light or moderate icing and continue flight in actual
icing conditions.\15
But wait! There's no real difference between these aircraft! They may be
identically equipped. It is strange advice, indeed, for the organization
charged with "certifying safety" to endorse continued operation of
an aircraft in icing conditions with equipment that has never been measured
against any standard for effectiveness or reliability. Surely, if it is unsafe
to operate an untested aircraft with a placard, it is equally unsafe to
operate such an aircraft without one. Placards have no special magic. While it
is within the FAA's power to require the retroactive installation of a placard
against flight into known icing conditions in any airplane that is not
certified for it (by issuing an Airworthiness Directive), the agency has
simply left this loophole open.
If
you're not shaking your head yet, consider that this guidance applies only to
air taxi operators — who, in theory, are held to a "higher standard of
safety." [Large aircraft operators have virtually the same rule under FAR
91.527,
but no Advisory Circular.] Yet according to AC 135-9, a 135 operator could
load passengers into a twin with an untested package of ice protection gear
(which could never achieve certification even if it were tested because half
the components required for certification are missing) and a placard against
known icing conditions, fly all day long in known icing conditions anyway (to
hell with the placard, I guess), keep his fingers crossed in hopes that ice
doesn't form, and press on to the destination. But once he gets there and the
passengers get off, he can't deadhead home because that would be Part 91, and
the placard makes it illegal. Go figure. We may never know how many times the
FAA has shrugged its shoulders rather than have to explain this contradiction
to a judge.
They say it's dangerous to predict how any court will rule — and there is
no appellate history focusing directly on these points that I know of — but
considering the breathtaking sweep of the "Russian roulette" case
it's hard to imagine that the board would not find that flight into known
icing conditions in an aircraft with untested, uncertified equipment is at
least careless — placard or no placard — no matter what some other rule or
guidance might permit. Again, the argument is waiting to be made.
The Coming Train Wreck
To make matters still worse: After decades of bandying terms like
"known icing conditions" and "forecast icing conditions,"
the FAA finally emerged from the mist in December 2000, defining its terms in
accordance with the recommendations of an icing conference it conducted in
1996. Now, it proposes to say that "known icing conditions" are
"atmospheric conditions in which the formation of ice is observed or
detected in flight": the very definition that has landed so many airmen
in court!\16 Thus, the FAA and the NTSB
are on a head-on collision course, with the FAA permitting operations that the
board long ago determined were illegal. To add further irony, the FAA has been
happy over the years to use the board's definition as a bludgeon to win in
court. It will be interesting to see whether its lawyers continue to haul out
this weapon now that the agency proposes to put its "new-old"
definition in writing. Don't bet your certificate that they won't.
Case Law As "Vicarious Experience"
So,
if the FAA and the NTSB can't get in step with each other, what's a lowly
airman supposed to do?
Well, for one thing, the basis of any rational system of justice is the
right of the governed to know what behavior is acceptable before they do
something. At the same time, pilots have an obligation to make an effort to
know what minimum standard of care is expected of them before taking action.
This is a burden similar to that borne by doctors, lawyers, law enforcement
officers, and others in society who have special training and skills, and who
exercise special privileges because of them. Peoples' lives depend on how well
those burdens are carried, and even though there is never any guarantee that
things will turn out all right, we might all be a little closer to that goal
if we consider the experience of others. Case by deliberate case, the NTSB is
telling us how a regulation will be applied when a problem arises. Shouldn't
we take that into consideration beforehand?
These aren't just dusty tomes of law. They may not be as poignant or
exciting as the works of St. Exupéry or Gann, but they are real stories about
real people who faced a set of circumstances and made decisions that turned
out badly. They include at least some of the dramatic events of which great
literature is made: injury, death, destruction of property and the torment of
people who are terrorized for life by the aftereffects of bad choices. We who
are faced with making decisions about icing conditions are engaged in a
long-term game of "connect-the-dots" in which the NTSB does the
dotting and we do the connecting. It's these connections that form the
boundaries that tell us when we are inside — or outside — the norms of
acceptable practice. As an interpreter of the rules, the board is, over time,
telling us what it thinks the word "safety" means. And it is not
saying — as some would suggest — that the only acceptable level of safety is
found at home in bed.
Where Do You Draw The Line?
The board is not asking us to become mindless lovers of rules. As legally
muscle-bound as our society has become, we do not need — nor can we ever
devise — a rule for every set of circumstances. A regulatory agency cannot be
expected to write such a rule, but it must write something. So it draws a line
— like a speed limit — and tries to apply it, however imperfectly. It has to
be able to count on people to take enough personal responsibility to exercise
clear, independent, and reasoned judgment. Those of us who love to fly are as
frustrated as anyone by the creeping intrusions of fine-print into every
aspect of life, and are equally frustrated by the repeated, well-publicized
examples of pilots who refuse to apply even the most rudimentary principles of
personal restraint to their behavior in airplanes: For it is often this very
behavior that serves an excuse for further regulation.
Questions of legality are not automatically questions of safety. Anyone who
has ever driven 60 in a 55 — and been ignored by a cop — knows that the risk
of a measly five extra miles per hour isn't that great. But then, anyone who
has ever been ticketed for doing 60 in a school zone should know that he has
crossed the line. There is a fuzzy boundary in there someplace where minor
cheating becomes foolhardy risk-taking, and no one can tell you precisely
where it is. But it is there, and even the most libertarian among us embraces
some line-drawing. While I may hate the rules that apply to me, I am happy to
see others restrained from harming me through their lawlessness. Even the most
rabid government-hater will occasionally be heard to say, "Well, there
oughta be a law against that!"
Get The "Ticket"
While it is both futile and dangerous to suggest mindless obedience, I am
arguing for a conservative approach: When it comes to flight into "known
icing conditions" the NTSB is basically right.
Consider
an analogy: Most of us would agree that for the average pilot it would be
stupid to practice aerobatic maneuvers in a Normal Category airplane. It's not
impossible. Bob Hoover did it — and beautifully.\17
But Hoover has extraordinary talent, training, experience, and discipline. He
enjoys being alive, and he knows that in order to stay that way he must
account for every detail of his environment — to control what he can, and to
adjust for what he cannot. The level of his control and discipline is what
makes him the consummate air show professional that he is. Most of the rest of
us, however, wouldn't even consider wringing-out a 172 the way Hoover did a
Shrike, because even if we could account for all the variables, we might never
develop the necessary skill. Ever hear anyone complain about this? Ever hear
anyone whine that the FAA is cutting into the utility value of his Skyhawk by
making it illegal to practice Cuban Eights in one? Probably not. "If you
want to do aerobatics," we say, "buy an Aerobat."
Yet, over the years, I've heard pilots complain that if they have to stay
out of areas of forecast icing, they might as well make a lawn ornament out of
their airplane, because they won't be able to fly it more than four months out
of the year. For this, they blame the government. Now, I would like to feel
sorry for them — the way I would feel sorry for someone who buys a Volkswagen
Beetle for the purpose of towing a 36-foot yacht. But as much as the science
of meteorology has improved in the last quarter-century, ice forecasting
hasn't improved enough to give even the best weather-busting pilot the kind of
control over his environment that Bob Hoover has over his. Certification for
flight into known icing conditions should be viewed as the minimum ticket for
admission to the known-icing game, the same way Acrobatic Category
certification is the minimum ticket to the practice of inverted flat spins.
There is one notable difference: Certified icing gear should be viewed as
something that keeps you afloat while you find your way out of an actual icing
encounter, not as the stuff that gives you permission to slog along forever in
deteriorating conditions.
Don't Push Your Luck
Every winter, the aviation press is filled with testosterone-drenched
strategies for penetrating icing conditions, aimed at pilots flying unequipped
aircraft. Many of their authors can't resist spicing things up with the story
of their most harrowing encounter with ice, thinking to impress the reader
with superior skill, luck, or nerve — not realizing that in so doing they
merely illustrate their own foolishness in taking pointless risks. Much of
this strategizing would be excellent advice for those who have "purchased
the ticket," but if you're in a naked — or bikini-clad — airplane and
penetrate visible moisture in an area of forecast icing, you're surrendering
yourself to Fate. That's as illegal today as it was in Marion, Ind., in 1972.
And, like it or not, this exposes you to enforcement action whether you crash
or not. It's as profoundly irresponsible to suggest otherwise, as it is to
advise someone to snap-roll a 172 when no one is looking. Escaping detection
isn't the point. Safety is the point. [It is important to point out here that
icing forecasts typically encompass a block of airspace having both vertical
and lateral dimensions, and often describe the phenomenon in which the
forecast condition is expected, e.g., "in clouds and precipitation,"
or "above the freezing level." Generally, in order to be within the
forecast area, and thus covered by it, one must be operating within that block
and within the described phenomenon. Thus, one may be inside the lateral
limits of a forecast, but not in the "forecast area" because some
other condition is not met.]
Genuine
risk is tough to quantify, and forecasting isn't that precise. A pilot might
be able to penetrate a thin, cold overcast, for instance, without exposing
himself to much real danger — even if it is technically illegal. On the other
hand, a brief approach through an innocuous-looking blanket of low-lying
clouds can result in a truly terrifying encounter with freezing rain, even
when the forecast only calls for "light-to-moderate icing."
Experienced weather pilots will tell you that icing conditions are capricious.
Most of the time they fail to materialize, causing pilots to become cynical
about the weather bureau's chronically dismal forecasting. [Honestly, folks,
they do the best they can with what they have. We hate them when they warn us,
and we hate them when they don't. Wrong or right, they can't win.] When icing
actually does occur, it might stay "light" for hours, or go
"severe" quick as an eyelash. When you hold lives and property in
your hand (and you do, even when you're solo — unless you live in a vacuum),
you have an obligation to prepare for both possibilities.
Whether or not the FAA ever brings its literature, its regulations, or its
policies into line with the board's opinions, the NTSB isn't likely to reverse
itself after years of consistent rulings. Until we can account for variables
the way a professional air show pilot does, it would be wise to heed the
NTSB's warning to the players of Russian roulette: "A prudent
pilot," it said, "seeks to eliminate, not to discount, the hazards
to safe flying that adverse weather can produce."
Afterword
The recent appellate court decision in Garvey,
FAA vs. NTSB and Richard Lee Merrill, so ably laid out by Phil
Kolczynski in "A Dangerous New Precedent In FAA
Enforcement Law" came to my attention after this article was
completed, and profoundly changes the context in which the cases and policies
I cited must be viewed.
After
reviewing Mr. Kolczynski's analysis of Merrill, I think it is now more
important than ever to take a conservative approach to operations in icing
conditions. The FAA's proposal to sanctify a definition of "known icing
conditions" that is contrary to the NTSB's definition might, at first,
seem to be a signal that the agency is about to liberalize its approach. But
this would be a dangerous interpretation. Remember, it is the FAA that brought
action in Administrator vs. Bowen, and all the later cases that rested
upon its foundation. That means that somewhere in its appeal briefs the agency
has repeatedly used Bowen to make its case. It will likely continue to
do so. It also means that, with its "new-old" definition the FAA can
call whatever tune it wants, whenever it wants, and that it can change the
tune in the middle of the dance to suit the desired outcome. It's the
equivalent of a cop being able to change the speed limit after s/he pulls you
over. It is naïve to think that such power won't be abused.
I concur with Mr. Kolczynski's call for action to seek the overturning of Merrill
by whatever means necessary, including direct Congressional intervention, as
well as the development of a legal defense fund to advance a clean test case
to the Supreme Court. The right of independent judicial review in the
administrative process is as fundamental in its own context as any other civil
right. Anyone who wants to fly needs to pay attention to this, especially
those who seek to make flying their life's work. Until Merrill is
overturned (and after), the safest course of action is to stay out of
"known icing conditions" unless you've "bought the
ticket." Even then, be careful where you sit!
Notes:
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