Flight Into Known Icing Conditions: An Enforcement Action Waiting To Happen, Or Worse?

Winter will be here soon. And with the arrival of colder temperatures, flight service station briefings will more often than not include the perennial “AIRMET ‘X’ for occasional light to moderate rime and mixed icing in clouds and precipitation.” Thus, the timing is good for review of a recent National Transportation Safety Board (“NTSB”) decision relating to flight into known icing conditions and the FAA’s position regarding such operations.

The Facts

The case, Administrator v. Curtis, arose from the FAA’s investigation of an accident at Payne Field in Everett, Washington in which an aircraft ran off the runway and was substantially damaged. Prior to taking off from Boeing Field, Seattle, Washington on the ill-fated flight, the airman, Mr. Curtis, who was a flight instructor and also pilot in command for the flight, obtained a computerized weather briefing and also contacted ATC for a briefing. The briefings revealed overcast skies and a temperature at Payne Field at 1 p.m. of 2 degrees Celsius with cloud tops at 2100 feet.

The airman then took off at 2:30 p.m. with a student on an IFR instructional flight during which the student was going to practice instrument approaches at Payne Field. The student flew the aircraft and the airman was responsible for all radio communications. Upon executing the first missed approach, the airman observed ice on the aircraft’s wings. The airman and his student then returned to Payne Field for a landing that ultimately resulted in an accident.

After investigating the accident, the FAA initiated enforcement proceedings against the airman. The FAA issued a Notice of Proposed Certificate Action (“NPCA”) charging the airman with violation of FAR’s 91.9(a)(prohibiting operation of an aircraft without complying with the operating limitations specified in the approved flight manual, markings and placards which, in this case prohibited operations into known icing conditions) and 91.13(a)(prohibiting careless and reckless operation so as to endanger the life or property of another). The NPCA also ordered a 90-day suspension of the airman’s certificate (although the case does not indicate which certificate, presumably the suspension applied to the airman’s commercial pilot certificate rather than his certified flight instructor (“CFI”) certificate since the airman would otherwise still be able to fly if only his CFI certificate were suspended). The airman timely appealed the NPCA to the NTSB and requested an evidentiary hearing on the issues.

The Evidentiary Hearing

At the hearing, the FAA presented evidence that the airman had ignored two pilot reports (“pireps”) to the sector controller of rime icing, which the airman should have heard on his radio. An expert witness also testified on the FAA’s behalf stating that the airman should have known from the weather report and briefing that he would have to descend and ascend into clouds at Payne Field to perform missed approaches and that the weather was such that icing was possible. With this knowledge, the expert witness testified that the airman shouldn’t have even initiated the flight. Finally, the airman’s student testified at the hearing that the airman actually pointed out ice on the wing to the student prior to execution of the missed approach. Based upon this testimony, the FAA argued that the airman should have taken remedial action and either landed immediately or flown above the clouds to an airport where he could land under VFR conditions free of the risk of accumulating ice on the aircraft.

Although the airman argued that he didn’t hear the pireps, that he didn’t see the ice until after the missed approach and that he acted reasonably upon discovering the ice buildup, the administrative law judge (“ALJ”) didn’t buy it. The ALJ found that the airman should have heard the pireps and that he should have known the flight would be occurring in conditions conducive to icing. The ALJ affirmed the FAA’s order suspending the airman’s certificate for 90-days for violations of FAR’s 91.9(a) and 91.13(a).

The Appeal To The Board

The airman then appealed to the full NTSB. He made a number of arguments to the Board, all of which were summarily dismissed. First, he argued that the testimony of his student was not credible. However, based upon the long established principle that credibility determinations are exclusively for the ALJ to make, the Board quickly rejected this argument. Next, the airman argued that the case law regarding “known icing conditions” didn’t apply to his situation because the pireps, regardless of whether he actually heard them, were not stated as within his flight path and, thus, he didn’t have to give them any consideration. The Board disagreed, noting “[i]t would have been prudent, at a minimum, to query ATC when a report of icing in his sector was broadcast so that he could assess the threat. He failed to do so. Absent clarification that the icing was not a threat to his aircraft, he risked flying into known icing conditions.”

Finally, the airman argued that the ALJ’s interpretation of the “operation into known icing conditions” case law was too broad and more theory than fact. Although the Board didn’t need to address this argument to affirm the ALJ’s decision, it responded that “[p]ilots are required to obtain all information pertinent to their flight – that is, be well prepared – and make reasoned decisions based on that information. Here, respondent knew that he would be flying into clouds that contained moisture, knew that the temperature on the ground at his destination was close to freezing, and knew that in the cloudy skies on the way to and above Payne Field the temperature would be colder. The risk of icing was clear. Respondent nevertheless chose to make the flight, and to continue it when further evidence of actual icing or reported icing presented itself, all with predicable consequences. In our view, doing so was clear error, in violation of the cited regulations and especially egregious in the case of a flight instructor.”

Conclusions

The Board’s decision affirming the ALJ’s decision is consistent with the case law indicating that “operation into known icing conditions” includes operation into “forecast” icing conditions. Unfortunately, if you fly in the upper half of the United States or Alaska and interpret this case law literally, the standard AIRMET for icing would ground you for almost all flights during the winter months except days with “severe clear” weather conditions. However, don’t put your aircraft away for the winter just yet.

Unlike FAR Part 135 governing commercial operations which has some very specific restrictions regarding operation in “known icing” conditions, FAR Part 91 governing most general aviation operations allows a pilot to exercise greater discretion in making the judgment as to whether a flight can be safely conducted during the winter months. However, the discretion afforded to and, indeed, demanded of a pilot operating under Part 91 has limits.

When operating under Part 91, you cannot exercise that discretion carelessly or recklessly, lest you violate FAR 91.13. If you exercise poor judgment and fly into icing conditions which you knew or should have known about based upon all of the information available to you, you are likely to be sanctioned if discovered. But, if you have more accurate information that contradicts a forecast of icing conditions or information upon which you can reasonably base a decision that your flight will not be susceptible to the risk associated with the forecast icing conditions, then your risk of successful enforcement action is diminished.

Unfortunately, the issue of flight into known icing conditions does not have any simple answers. Each situation will be analyzed on a case-by-case basis. If you exercise your judgment reasonably and prudently, you will not only keep yourself and your passengers safe, you will also minimize your exposure to FAA enforcement action.

Winter flying can be some of the best flying you will experience. It can also be some of the most unforgiving. Thus, the broad interpretation of “known icing conditions.” Yet, if you fly safe and smart, you can continue to fly throughout the winter without risking life and limb, or your airman certificate.

The information contained in this web-site is intended for the education and benefit of those visiting the Aero Legal Services site. The information should not be relied upon as advice to help you with your specific issue. Each case is unique and must be analyzed by an attorney licensed to practice in your area with respect to the particular facts and applicable current law before any advice can be given. Sending an e-mail to Aero Legal Services or Gregory J. Reigel does not create an attorney-client relationship. Advice will not be given by e-mail until an attorney-client relationship has been established.