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#61
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Flying through known or forecast icing
"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 |
#62
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Flying through known or forecast icing
Jim
But, it IS used for the basis of interpretation of what the FAA intends or means when it comes to operations As an aside....... I've had a nasty experience with the FAA and NTSB when one of my pilots was killed on a night IFR into SLC hauling freight. I believe he iced up and went in before he knew what had happened on his initial descent. Was solo in a C210T and a very experienced guy with thousands of hours. At the NTYSB hearing a federale said he had seen me falsifying records in my office during the initial investigation after the crash. I was out on a freight run during that day of hearings and missed his phucking lying performance. I told him later that I hoped to see him one evening on the streets and I'd thrash him. Doesn't have anything to do with the AIM but I feel better having said this. |
#63
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Flying through known or forecast icing
On Fri, 16 Dec 2005 02:43:06 GMT, George Patterson
wrote: Bob Gardner wrote: Gary, the most recent case was in 2005. That's what George was linking to. No, that's the date of the article. The most recent ruling on the forecast icing issue was about 12 years ago. There were earlier ones as well. If, however, the AIM is in conflict with case law (and it is), the AIM is wrong. George Patterson Coffee is only a way of stealing time that should by rights belong to your slightly older self. As we all know, the AIM is not regulatory. How much clout it carries depends upon whether the FAA is using it against a pilot or a pilot is using it as a defence against the FAA. Not to discount all of the interesting comments regarding the meaning of the regs, but I pity the poor pilot who finds himself in the position of going up against the precedent set by these "old" cases. Rich Russell |
#64
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Flying through known or forecast icing
"RNR" wrote in message
... As we all know, the AIM is not regulatory. Right, but that just means that its contents do not *constitute* regulations. It does not mean that its contents do not bear on the reasonable interpretation of the regulations (or of the terms used therein). On the contrary, the FAA says explicitly (in the AIM's preface) that the purpose of the AIM is to offer pilots guidance in understanding the regulations and associated practices. How much clout it carries depends upon whether the FAA is using it against a pilot or a pilot is using it as a defence against the FAA. Several pilots have put forth the claim that the AIM only works in one direction (namely, when it's on the FAA's side in legal proceedings), but no one here has offered any documentation in support of that claim. No one has shown even a single case in which the FAA successfully (or even unsuccessfully!) took action against a pilot for abiding by a provision of the AIM. Not to discount all of the interesting comments regarding the meaning of the regs, but I pity the poor pilot who finds himself in the position of going up against the precedent set by these "old" cases. The cases aren't just "old". What matters is not their age, but rather that they address a situation that no longer obtains (namely, a situation in which the FAA had no official explicit published definition of the term "known icing conditions"). It strikes me as misplaced for pilots to worry so much about a specific kind of flagrant injustice that (as far as anyone here knows) has never actually taken place. It's not that I just trust the authorities to behave reasonably. On the contrary, one reason the misplaced worry concerns me is that it could serve as an invitation for those in authority to move in the direction of inflicting such an injustice, for they can see that many pilots have already resigned themselves to accepting (apart from some newsgroup grumbling) an intolerable violation of fairness that isn't even occurring yet. That anticipatory resignation, it seems to me, undermines one of the important forces that helps keep the authorities in check. --Gary PS: I keep restoring r.a.p. to this thread because icing conditions can occur outside of clouds, so the discussion is pertinent to VFR as well as IFR flight. |
#65
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Flying through known or forecast icing
"Gary Drescher" wrote in message . .. "RNR" wrote in message ... As we all know, the AIM is not regulatory. Right, but that just means that its contents do not *constitute* regulations. It does not mean that its contents do not bear on the reasonable interpretation of the regulations (or of the terms used therein). I think of the AIM as a layman's "interpretation" of the FAR's. Comments? -- Matt --------------------- Matthew W. Barrow Site-Fill Homes, LLC. Montrose, CO |
#66
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Flying through known or forecast icing
"Matt Barrow" wrote in message
news "Gary Drescher" wrote in message . .. "RNR" wrote in message ... As we all know, the AIM is not regulatory. Right, but that just means that its contents do not *constitute* regulations. It does not mean that its contents do not bear on the reasonable interpretation of the regulations (or of the terms used therein). I think of the AIM as a layman's "interpretation" of the FAR's. Comments? Sure, that's one way to think of it. But it's something else too: it's also official guidance from the FAA as to what the FARs mean. And that has to figure into a court's appraisal of whether some proposed FAA interpretation of the FARs meets the standard of reasonableness. --Gary |
#67
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Flying through known or forecast icing
Matt Whiting wrote:
But isn't it the NTSB that usually makes the final determination on the appeal? Used to be that way. Congress added the possibility of an appeal to the U.S. Appeals court some years ago. George Patterson Coffee is only a way of stealing time that should by rights belong to your slightly older self. |
#68
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Flying through known or forecast icing
"George Patterson" wrote in message
news:lMBof.168$CL.5@trnddc04... Matt Whiting wrote: But isn't it the NTSB that usually makes the final determination on the appeal? Used to be that way. Congress added the possibility of an appeal to the U.S. Appeals court some years ago. George, I have a different understanding of the three branches' separation of powers. Neither the administration nor the Congress has the Constitutional authority to make a federal agency's decisions categorically immune to judicial review. Congress may have formalized the appeal process at some point, but I don't think it could have previously been the case that NTSB decisions were exempt from all judicial appeal. The NTSB may formerly have taken that position, but that didn't make it true. Was there ever a case that an appeals court refused to hear on the grounds that NTSB decisions were inherently unappealable? Thanks, Gary |
#69
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Flying through known or forecast icing
"T o d d P a t t i s t" wrote in message
... "Gary Drescher" wrote: I think of the AIM as a layman's "interpretation" of the FAR's. Sure, that's one way to think of it. But it's something else too: it's also official guidance from the FAA as to what the FARs mean. And that has to figure into a court's appraisal of whether some proposed FAA interpretation of the FARs meets the standard of reasonableness. I don't think of the AIM as either a layman's "interpretation" of the FAR's or "official guidance from the FAA as to what the FARs mean." Interpretations and official guidance as to what the FAA thinks regulations mean come from the FAA's Chief Counsel's Office. Yes, that's another source. But (for example) when the AIM defines terms that are used in the FARs but not defined in the FARs, then it's offering pilots guidance as to what the FARs mean. Moreover, I don't think of any certificated pilot as a 'layman," there's way too much training, study and testing for that label to apply to pilots. I took Matt to mean that we're laypersons with regard to matters of law. --Gary |
#70
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Flying through known or forecast icing
"T o d d P a t t i s t" wrote in message
... "Gary Drescher" wrote: Interpretations and official guidance as to what the FAA thinks regulations mean come from the FAA's Chief Counsel's Office. Yes, that's another source. Saying it's "another source" implies (at least to me) that they are roughly equivalent sources of interpretation. They aren't. If there's any conflict, the Chief Counsel's interpretation overrides anything in the AIM. Well, whether that's true or not is one of the main points of disagreement that's come up in this thread. My argument is that 1) by common sense, it would not meet the legal standard of reasonableness for the FAA to publish an explicit definition in the AIM (for example, the AIM's new definition of "known icing conditions", which unambiguously excludes *forecast* conditions) and then have the Chief Counsel insist that the legally valid interpretation of the term is something else entirely; and 2) empirically, there seem to be no known cases in which the FAA has ever even *tried* to bust a pilot for interpreting a regulatory term in a way that irrefutably accords with the AIM's explicit definition of that term. For those reasons, I don't believe that the Chief Counsel has carte blanche to "override" the AIM. But if you have evidence or arguments to the contrary, I will gladly consider them. --Gary |
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