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#61
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What's the latest on "forecast icing = known icing"
"LWG" wrote in message
... I was simply quoting a US Supreme Court reference to the existence of an entrapment concept in noncriminal law, directly contradicting your (unsupported) claim that entrapment applies exclusively to criminal cases. But you haven't shown where it *does* apply to enforcement action. I cited an example of an administrative penalty being overturned because of entrapment. And the appeals court decision in that case cited in turn many other examples of successful noncriminal invocations of the entrapment defense. The stated rationale is clear, simple, and obvious: it is contrary to the interests of justice to prosecute an infraction that the prosecuting authority has itself induced someone to commit (someone who was not otherwise inclined to do so). I've already offered to report back here if I ever get in trouble. But meanwhile (since it's likely to be a *very* long wait), it would be helpful if you could cite even a single example, ever, of the FAA busting a pilot for trusting a definition of a regulatory term (or any other information) that the FAA has published in the AIM. But you haven't shown where a pilot was exonerated in reliance upon a regulatory term that differed from a position advanced by the FAA. Of course not. The courts give the FAA wide latitude in interpreting its regulations and regulatory terminology. The FAA's interpretation can only be overturned if it's blatantly ridiculous, and they have no incentive ever to press for an enforcement action based on such an interpretation, because, well, they'd look blatanly ridiculous (and would be overturned on appeal). Analogously, I can't find an example of a pilot being exonerated after being charged with recklessness on the grounds that flying on Tuesday afternoons is inherently reckless. There's no such exoneration because, of course, no such charge has ever been brought, nor would it be. But the lack of any such prior exoneration is not something that should worry us. I've already shown here that, contrary to legend, appeals court rulings require FAA interpretations to meet a standard of reasonableness that would overturn any such capriciousness; and even if not, the concept of entrapment would still be applicable. No, you haven't, and no, it wouldn't. There is nothing but dicta talking about reasonableness. Please cite one holding which mandates that the FAA's position meet a standard of reasonableness. In FAA v. Merrell, the court said the NTSB (and the appeals court) is not bound to uphold an FAA interpretation that is "arbitrary, capricious, or otherwise not according to law". If the court were not going to overturn such an interpretation, what would be the point of having an appellate review of FAA enforcement actions at all? It's true that the court did not spell out what constitutes arbitrariness or capriciousness. In the absence of such a specification, we should just use the ordinary, commonsense meaning of those words. Thus, we should ask if a reasonable person would consider it arbitrary or capricious for the FAA to prominently, officially advise pilots about the correct meaning of a regulatory term, and then claim in an enforcement action that the correct meaning is something very different. I think the answer is clear. Please cite one holding which establishes that reliance upon an AIM provision gives rise to an entrapment defense if the FAA asserts an interpretation of an FAR to the contrary. Once again: I can't, just as I can't cite an exoneration from the charge of flying on a Tuesday afternoon, because no enforcement action on such a preposterous basis has ever been attempted in the first place. I would not advise pilots to worry about such bizarre possibilities; but of course each person must independently decide what hazards are worth taking seriously. --Gary |
#62
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What's the latest on "forecast icing = known icing"
Gary Drescher wrote:
The current AIM (7-1-23) explicitly states that "forecast icing conditions" are *not* "known icing conditions": Nearly every place where there is a reference to prohibition of flight into icing conditions, "known" is followed by "or forecast." It's a moot issue. While, people talk about "known" ice certification, the truth is that enforcement is literal and forecast ice will get you in trouble with the regs. |
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