What's the latest on "forecast icing = known icing"

"LWG" wrote in message
. ..
It's easy to understand that the FAA's use of language is just like Alice
in Wonderland, "When I use a word, it means exactly what I want it to
mean, nothing more, and nothing less." They provide the language, in the
AIM or the FARs, and then get to tell the ALJ exactly what it means. The
ALJ and the NTSB are bound to accept that interpretation, no matter how
much they may disagree.

No, that's not true. They're only bound to accept any *reasonable*
interpretation. The AIM now explicitly defines "known icing conditions" as
conditions in which the formation of ice in flight is actually observed
rather than merely forecast. The FAA could not reasonably interpret *that*
definition to refer to conditions in which icing is unobserved but merely
forecast.

--Gary

I wish it were true. Isn't it the case that the NTSB reversed an ALJ based
upon its interpretation of an FAR, and that decision was appealed to the
D.C. Court of Appeals, which held that the NTSB must defer to the
interpretation advanced by the agency?

"Gary Drescher" wrote in message
...
"LWG" wrote in message
. ..
It's easy to understand that the FAA's use of language is just like Alice
in Wonderland, "When I use a word, it means exactly what I want it to
mean, nothing more, and nothing less." They provide the language, in the
AIM or the FARs, and then get to tell the ALJ exactly what it means. The
ALJ and the NTSB are bound to accept that interpretation, no matter how
much they may disagree.

No, that's not true. They're only bound to accept any *reasonable*
interpretation. The AIM now explicitly defines "known icing conditions" as
conditions in which the formation of ice in flight is actually observed
rather than merely forecast. The FAA could not reasonably interpret *that*
definition to refer to conditions in which icing is unobserved but merely
forecast.

--Gary

"LWG" wrote in message
news
I wish it were true. Isn't it the case that the NTSB reversed an ALJ
based upon its interpretation of an FAR, and that decision was appealed to
the D.C. Court of Appeals, which held that the NTSB must defer to the
interpretation advanced by the agency?

No, I think that's an Usenet legend. The appeals court may have done that in
a particular case, and may have held more generally that the FAA gets wide
latitude in its interpretations of the regs, but the court wouldn't
categorically waive a basic reasonableness test; that would be tantamount to
abandoning any meaningful judicial review, and abandoning the Constitutional
guarantee of due process.

As the saying goes, extraordinary claims require extraordinary evidence. So
if someone can actually document an appeals court decision requiring
absolute, unconditional deference to the FAA's interpretations, then I'll
believe it; otherwise not.

--Gary

"Gary Drescher" wrote in message
...
"LWG" wrote in message
. ..
It's easy to understand that the FAA's use of language is just like
Alice in Wonderland, "When I use a word, it means exactly what I want it
to mean, nothing more, and nothing less." They provide the language, in
the AIM or the FARs, and then get to tell the ALJ exactly what it means.
The ALJ and the NTSB are bound to accept that interpretation, no matter
how much they may disagree.

No, that's not true. They're only bound to accept any *reasonable*
interpretation. The AIM now explicitly defines "known icing conditions"
as conditions in which the formation of ice in flight is actually
observed rather than merely forecast. The FAA could not reasonably
interpret *that* definition to refer to conditions in which icing is
unobserved but merely forecast.

--Gary

requiring
absolute, unconditional deference to the FAA's interpretations

You'll never find that. However, it would certainly be sufficient to
find a case where an unreasonable definition was upheld.

Jose
--
Nothing takes longer than a shortcut.
for Email, make the obvious change in the address.

"Jose" wrote in message
news
requiring absolute, unconditional deference to the FAA's interpretations

You'll never find that. However, it would certainly be sufficient to find
a case where an unreasonable definition was upheld.

It depends. That would still be troubling, but nowhere near as troubling as
the absolute-deference requirement that some people believe exists. The
important difference is that upholding a particular unreasonable
interpretation would not automatically generalize to requiring all
unreasonable interpretations to be upheld. But so far, no one here has
documented even a single instance of a blatantly unreasonable FAA
interpretation of the FARs being upheld.

--Gary

Jose
--
Nothing takes longer than a shortcut.
for Email, make the obvious change in the address.

It's no usenet legend, it's FAA v. Merrell. The standard is absolute,
abject deference.
http://www.aviationlawcorp.com/conte...s.html#appeals

--------
The Court of Appeals Relegates the NTSB to Rubber-Stamping
On appeal, The FAA argued that the NTSB is required to defer to the FAA's
litigation interpretation of its own regulations. The NTSB refused to defer
to the FAA in this case. The Board ruled that the Agency had offered no
evidence of any validly adopted written policy guidelines on the issue. The
NTSB believed that the agency had merely offered the "litigation statements"
of FAA enforcement lawyers on the question of how to interpret the
regulations pertinent to a misunderstood ATC clearance. The Board felt that
the interpretation of the regulation about whether the captain was careless
under the circumstances was factual in nature and it has always been within
the prerogatives of the Board to reverse factual findings regarding alleged
violations of the rules.
The D.C. Circuit Court of Appeals overruled the decision of the NTSB and
held that the refusal of the Board to defer to the FAA on this question of
agency interpretation was "error." The circuit justices ruled that:
The FAA is not required to promulgate interpretations through rule making or
the issuance of policy guidelines, but may instead do so through litigation
before the NTSB .... The fact that this mode of regulatory interpretation
necessarily is advanced through the litigation statements of counsel does
not relieve the NTSB of its statutory obligation to accorded due deference.
FAA v. Merrell at 577-578.
The Circuit Court went so far as to tell the Board that because the FAA is
entitled to launch new policies through administrative adjudication, "it may
sometimes be necessary for the NTSB to accommodate such policies by changing
its jurist prudential course." Even more amazingly, the Court held that
"because the Board is bound to follow such interpretations, it may at times
be both necessary and proper for the Board to depart from its prior case
law."
-------
"Gary Drescher" wrote in message
...
"Jose" wrote in message
news
requiring absolute, unconditional deference to the FAA's interpretations

You'll never find that. However, it would certainly be sufficient to
find a case where an unreasonable definition was upheld.

It depends. That would still be troubling, but nowhere near as troubling
as the absolute-deference requirement that some people believe exists. The
important difference is that upholding a particular unreasonable
interpretation would not automatically generalize to requiring all
unreasonable interpretations to be upheld. But so far, no one here has
documented even a single instance of a blatantly unreasonable FAA
interpretation of the FARs being upheld.

--Gary

Jose
--
Nothing takes longer than a shortcut.
for Email, make the obvious change in the address.

"LWG" wrote in message
...

It's no usenet legend, it's FAA v. Merrell. The standard is absolute,
abject deference.
http://www.aviationlawcorp.com/conte...s.html#appeals

No, absolute deference is not the standard, but thanks for the pointer to
that article. You may have identified the source of the legend!

Here is the text of the appeals court decision in FAA v. Merrell:
http://www.ll.georgetown.edu/federal.../98-1365a.html

Nowhere in that decision will you find a requirement for absolute deference
by the NTSB or by the appeals court to FAA interpretations. On the contrary,
the qualifications are quite clearly stated: the NTSB is "bound by all
validly adopted interpretations of laws and regulations the Administrator
carries out ... unless the Board finds an interpretation is arbitrary,
capricious, or otherwise not according to law". And the appeals court's
deference is similarly qualified.

In FAA v. Merrell, the court addressed an aspect of the regulations that had
not been the subject of written guidance by the FAA, and concluded that the
FAA was thereby free to impose whatever *reasonable* interpretation it chose
(that is, an interpretation that is not arbitrary, capricious, or otherwise
contrary to law).

In contrast, the question under discussion in this thread concerns whether
the FAA can offer explicit, unambiguous written guidance in the AIM, and
then interpret a regulatory term in a manner exactly *opposite* to that
guidance. *That* would certainly be arbitrary and capricious, and would not
be upheld on appeal; nothing in FAA v. Merrell suggests otherwise.

--Gary

--------
The Court of Appeals Relegates the NTSB to Rubber-Stamping
On appeal, The FAA argued that the NTSB is required to defer to the FAA's
litigation interpretation of its own regulations. The NTSB refused to
defer to the FAA in this case. The Board ruled that the Agency had offered
no evidence of any validly adopted written policy guidelines on the issue.
The NTSB believed that the agency had merely offered the "litigation
statements" of FAA enforcement lawyers on the question of how to interpret
the regulations pertinent to a misunderstood ATC clearance. The Board felt
that the interpretation of the regulation about whether the captain was
careless under the circumstances was factual in nature and it has always
been within the prerogatives of the Board to reverse factual findings
regarding alleged violations of the rules.
The D.C. Circuit Court of Appeals overruled the decision of the NTSB and
held that the refusal of the Board to defer to the FAA on this question of
agency interpretation was "error." The circuit justices ruled that:
The FAA is not required to promulgate interpretations through rule making
or the issuance of policy guidelines, but may instead do so through
litigation before the NTSB .... The fact that this mode of regulatory
interpretation necessarily is advanced through the litigation statements
of counsel does not relieve the NTSB of its statutory obligation to
accorded due deference. FAA v. Merrell at 577-578.
The Circuit Court went so far as to tell the Board that because the FAA is
entitled to launch new policies through administrative adjudication, "it
may sometimes be necessary for the NTSB to accommodate such policies by
changing its jurist prudential course." Even more amazingly, the Court
held that "because the Board is bound to follow such interpretations, it
may at times be both necessary and proper for the Board to depart from its
prior case law."
-------
"Gary Drescher" wrote in message
...
"Jose" wrote in message
news
requiring absolute, unconditional deference to the FAA's
interpretations

You'll never find that. However, it would certainly be sufficient to
find a case where an unreasonable definition was upheld.

It depends. That would still be troubling, but nowhere near as troubling
as the absolute-deference requirement that some people believe exists.
The important difference is that upholding a particular unreasonable
interpretation would not automatically generalize to requiring all
unreasonable interpretations to be upheld. But so far, no one here has
documented even a single instance of a blatantly unreasonable FAA
interpretation of the FARs being upheld.

--Gary

Jose
--
Nothing takes longer than a shortcut.
for Email, make the obvious change in the address.