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unpublished definition instead, would not be reasonable by any stretch of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

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.

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

"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.

"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

"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

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.

"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

"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

"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