You launched through a 200-foot-thick cloud layer at zero degrees C without known ice certification. Does the FAA care?

by Bob Miller

After 30 years of flying into and out of some of the worst weather in the world - Buffalo, N.Y. - I have a pretty good idea of what meteorological factors contribute to known ice. Like most weather-beaten pilots, I look at the weather reports, assess my escape routes, and make my go/no-go decision relative to icing conditions.

As a grizzled, old flight instructor, I try to provide real-world flying experiences to my IFR students. Recently some folks got after me saying my instruction violated the aircraft certification prohibiting flight into known icing. They also claimed that I exposed my students to undue risk.

I knew the real-world risk was within reason, but was I in violation on a technicality?

A Simple Question
Ask any group of pilots to define the term "known ice," and you'll likely start a rousing debate.

Some will claim that any visible moisture at or near freezing temperatures fits the FAA's definition of known ice. Some will argue that known icing requires forecast, reported, or icing known to the pilot. Others will say that "known ice" is when it sticks to the airplane.

Depending upon how you define "known ice," many GA aircraft should remain on the ground from November through March in much of the United States. Instrument instruction in IMC conditions would come to a screeching halt throughout the winter and beyond in the northern climates. Part 135 operations in non-known-ice-certified aircraft? Don't even think about it north of Florida.

I asked the question via a formal request for a legal determination from the FAA's Eastern Region Office of Regional Counsel. Here, in part, is what they had to say:

Reduced to basic terms, known icing conditions exist when visible moisture or high relative humidity combines with temperatures near or below freezing. Since clouds are a form of visible moisture, flying through clouds at an altitude that is near or below freezing would constitute flight into known icing conditions.

The Federal Aviation Regulations do not allow for experimentation.

Flight into known icing conditions when the airplane flight manual or pilot operating handbook prohibits such flight would constitute a violation whether the aircraft accretes ice or not.

In explaining their definition of known ice, Loretta E. Alkalay, FAA Regional Counsel, referenced Administrator v. Curtis, NTSB Order No. EA-5154 (April 29, 2005). Here, the court ruled that conditions conducive to icing exists whenever near- or below-freezing temperatures and moisture exist together in a given area. It didn't matter that there were no reports or forecasts of icing conditions at any altitude anywhere near the route of flight.

The Regional Counsel's office also referenced Administrator v. Groszer, NTSB Order No. EA-3770 (January 5, 1993), which ruled that the threat of ice need not cover the entire area at all altitudes for the threat to be known or dangerous.

In short, the FAA defines known ice as any visible moisture (cloud or limiting visibility due to moisture) with temperatures at or near freezing. If you go there in a non-known-ice-certified aircraft, you are in violation. Period.

Understanding that what is written and what is intended may be different, I contacted the Regional Counsel's office by phone and discussed the known-ice definition at length with staff attorney Stephen Brice. The message was the same. Mr. Brice stated that "a pilot who enters a cloud at or near freezing temperatures in an aircraft not certified for flight into known ice is in violation."

He added that a lack of reports or forecasts of ice didn't matter. It didn't even matter whether the temperature is zero degrees C or -30 degrees C - where it's so cold that moisture droplets have already crystallized and there's no icing risk. Water droplet size? It makes no difference. Got a Cirrus with TKS or Columbia with E-Vade? Sorry. If the aircraft is not certified for flight into known icing, it's not legal to be in cold clouds.

Alas, the FAA's definition of "known ice" is crystal clear. No pun intended.

OK, so it's illegal to exceed the highway speed limit, but it is done all of the time and oftentimes in the name of safety. Anyone doing a mere 65 mph on Interstate 95 around Washington, D.C., would have everything from 18-wheelers to Mini Coopers blasting past them. Theoretically, one mile per hour over the posted speed limit is illegal but enforcing that rule is out of the question.

I used this line of reasoning when taking my known ice definition question to the Rochester, N.Y., Flight Standards District Office (FSDO). Talking with FAA Operations Supervisor Carl Kohl about the written response I received from the Office of Regional Counsel (a copy of which he had also received), I asked how the FSDO enforces reported or suspected violations of icing certification.

His response offered a ray of hope. Kohl made it clear that enforcement of any suspected violation is a discretionary matter based upon a recently enacted FAA document called the "Compliance/Enforcement Bulletin 2005-1: Enforcement Decision Tool," or just EDT.

The EDT is an aid for "agency enforcement personnel to assist them in carrying out the FAA's exercise of prosecutorial discretion in addressing violations of the FAA's statute, regulations, and orders." The EDT process uses systems safety risk management principles to allocate limited FAA resources to the most important cases, for a more timely and effective compliance and enforcement system.

In essence, the EDT sets forth a series of checklist questions that assists the FAA in deciding whether or not to launch an enforcement action for any suspected violation. Responses to these checklist questions lead to the creation of a Risk Assessment Matrix. Whether or not an FAA inspector elects to pursue an enforcement action for a suspected violation is based largely upon the outcomes of this risk assessment matrix.

For argument sake, let's say that it comes to the local FSDO's attention that a Cessna 182 (without known-ice certification) allegedly descended through a sub-freezing cloud layer on the approach to the Buffalo/Niagara International Airport (KBUF). There were no reports or forecast of icing conditions in the area, nor did the aircraft accumulate any icing on the airframe. By law, however, the FSDO must investigate all such suspected violations, whether observed by an FAA inspector or reported by another pilot or even by a member of the general public.

Will the FAA pursue an enforcement action against the pilot of this aircraft? Using the EDT, the FAA inspector will ask if the pilot's alleged descent into sub-freezing clouds was willful, intentional, careless, or reckless. It will also ask if the likely worst-case outcome would have been catastrophic, critical, marginal, or negligible.

Other questions asked in the EDT process address the pilot's qualifications, e.g., student pilot, private pilot, ATP. Checklist questions also help to form a profile of the pilot. For example, does he participate in the FAA's WINGS program? Is she an otherwise safety minded-pilot?

After the EDT form is completed, a recommendation is made as to what action, if any, will be taken against the pilot. The options are: no action, oral counseling, written warning, remedial training, and, ultimately, a full-court legal proceeding.

According to FAA Operations Supervisor Kohl, it takes a bundle of rock-solid evidence before the FAA will pursue an enforcement action on the icing matter. For example, if a safety-conscious pilot, who actively participates in the WINGS program, elects to slither down through a narrow sub-freezing cloud with good VFR below, without adverse consequences, likely no enforcement action will result, even if a complaint is filed. (This, by the way, is one very good reason to have documented participation in the WINGS program.)

On the other hand, if a pilot ignores all of the icing warnings - e.g., PIREPs, AIRMETS, forecasts - and he picks up a load of ice, declares an emergency, and lands in a farmer's field, then that pilot had better contact his lawyer (if he survives).

Nothing New
The Regional Counsel's letter to me clarified the definition of known ice. You cannot legally fly a non-known-ice-certified airplane into any cloud near or below zero degrees C or you are in violation. If the FAA learns, either by direct observation or via a filed complaint, that a non-known-ice-certified aircraft entered a freezing cloud, it will initiate the EDT process and an enforcement may, or may not, result.

Despite the clarification of the known ice definition, the practical rules have not changed. Like everything else we PICs do, we must analyze the risks, both operationally and administratively, and make an aeronautical decision. Once we choose, we must be prepared to account for our actions - which is what's been true since we first began to fly.

-Bob Miller's online safety newsletter is at www.overtheairwaves.com

more stories >>>