Flying through known or forecast icing

"George Patterson" wrote in message
news:K0rof.16285$Ea6.4779@trnddc08...
Gary Drescher wrote:

The AIM doesn't set forth regulations, but its subtitle is "Official
Guide to Basic Flight Information and ATC Procedures"; and it states in
the preface that it presents information that the FAA wants pilots use to
understand and interpret the regulations. There's no way the FAA could
get away with officially telling pilots to use a given explicit
definition, and then prosecuting them for complying.

There's every way. In the first place, case law trumps everything.

No it doesn't. But even if it did, case law is grounded in existing
regulations and official documents that elaborate those regulations. And if
those change, then the prior case law is simply no longer addressing the
current situation.

In the second place, the Federal administrative court system has an
explicit policy that any government agency has the last word in
interpreting its own regulations. The only time the court will rule
against the FAA is when the FAA attempts to interpret a regulation in a
fashion that is different from an earlier interpretation. In other words,
the FAA can't violate a pilot for doing something one way and then violate
another pilot for doing just the opposite. Other than that, the FAA can
interpret the regulations any way they see fit.

George, what evidence do you have that that's the sole basis on which an
administrative court will overrule the FAA? In particular, what evidence is
there that other forms of blatant violation of due process are not also
grounds for overturning an FAA verdict? (Officially instructing pilots to do
something, and then busting them for complying, is as flagrant a violation
of due process as one can imagine.)

--Gary

Gary Drescher wrote:

George, what evidence do you have that that's the sole basis on which an
administrative court will overrule the FAA?

Sorry, I meant the appeals court. Recent cases mentioned in Yodice's column in
AOPA Pilot. To quote, we have "But the FAA appealed the NTSB's decision to the
Court of Appeals, which held that the NTSB must defer to the FAA's
interpretation" and "you can expect that the NTSB will be bound to defer to the
FAA's interpretation of your conduct as a violation of the FAR, unless you are
prepared to show the FAA's interpretation to be arbitrary, capricious, or illegal."

This was added to the legal statutes in 1994.

George Patterson
Coffee is only a way of stealing time that should by rights belong to
your slightly older self.

"George Patterson" wrote in message
news:90sof.32966$Wo2.12336@trnddc04...
Gary Drescher wrote:

George, what evidence do you have that that's the sole basis on which an
administrative court will overrule the FAA?

Sorry, I meant the appeals court. Recent cases mentioned in Yodice's
column in AOPA Pilot.

To quote, we have "But the FAA appealed the NTSB's decision to the Court
of Appeals, which held that the NTSB must defer to the FAA's
interpretation"

In that instance--but not categorically!

and "you can expect that the NTSB will be bound to defer to the FAA's
interpretation of your conduct as a violation of the FAR, unless you are
prepared to show the FAA's interpretation to be arbitrary, capricious, or
illegal."

But it would indeed be arbitrary, capricious, and illegal for the FAA to
present an official definition of a term in the central publication that the
FAA explicitly instructs pilots to be guided by, and then "interpret" the
term to mean something else entirely!

By the way, the above passages don't appear in the AOPA article by Yodice
that you cited earlier
(http://www.aopa.org/members/files/pi...05/pc0508.html), but I assume you
found them somewhere else. Even so, you're reading far more into Yodice's
assertions than they actually say (and moreover, even if he had asserted
what you think he did, we would still need some evidence in support of those
assertions; none has been offered). In particular, there is nothing in those
assertions to support your claim that the *only* basis for appeal is
inconsistency with prior case law; that specific basis isn't even mentioned
in those assertions!

An appeals court has broad authority to address any obvious violations of
due process in administrative proceedings. Yes, the court will give wide
latitude to the FAA to make any *reasonable* interpretation of its own
regulations. So in particular, *prior* to the AIM's current definition of
"known icing conditions", the court would indeed have deferred to the FAA's
selection among various reasonable interpretations of that term. But things
are different now that the term has been officially, explicitly defined.

For the FAA to just ignore its own published official definition of a key
regulatory term--published in the central document that the FAA has
instructed pilots to use to understand regulatory requirements and best
practices--and then punish a pilot for failing to use a different,
unpublished definition instead, would not be reasonable by any stretch of
the imagination. And that's exactly the sort of procedural impropriety that
appeals courts deal with, however deferential they might be to an agency's
reasonable interpretation of its own regulations.

--Gary