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

I am saying that, despite Gary's use of the words implicit and explicit, a
section of the AIM dealing with pilot reports is not the place to be looking
for validation of what constitutes known icing. I'm going to let this just
fade away, because it is a tempest in a teacup.

Bob

"Matt Whiting" wrote in message
...
Bob Gardner wrote:
The latest on known icing is a 2004 case...

http://www.aopa.org/members/files/pi...05/pc0508.html

In all my years of lecturing on icing and attending FAA icing conferences
I have never heard anyone, FAA or NWS, put forward the argument that you
espouse. It is bogus. Even before the 2004 case it was well established
by the NTSB (Administrator vs Bowen) that forecast conditions of moisture
plus below-freezing temps constitut known icing. You are late to the
party, Gary.

So are you saying that he misquoted the AIM or are you saying that the AIM
is wrong?


Matt

"Bob Gardner" wrote in message
...
I am saying that, despite Gary's use of the words implicit and explicit,

Actually, I didn't use the word 'implicit'. But yes, I did point out that
the AIM now explicitly distinguishes forecast icing conditions from known
icing conditions. I'm baffled as to how you could disagree (given the
definitions I quoted), but if you do, I'd be grateful if you'd explain why.

a section of the AIM dealing with pilot reports is not the place to be
looking for validation of what constitutes known icing.

Huh? The icing defintions I quoted are from the Meteorology section of the
AIM's Safety of Flight chapter. That's not the place to look for the meaning
of known icing? Even though you would in fact find the definition if you
looked there? (And even though that's the *only* place the FAA has published
a definition of known or forecast icing conditions?)

Yes, elsewhere in the same section (but not in the same subsection), the AIM
talks about PIREPs. If that proximity somehow impugns the FAA's icing
definitions, I am at a loss to imagine how, and would again be grateful for
any semblance of an explanation.

Thanks,
Gary

Andrew Sarangan wrote:
: Unless the FAA is handing out tickets to pilots who fly in icing
: conditions, all this discussion about certificate action simply
: academic.

: If the icing is light, then no one will find out, or even care. If the
: icing is severe, and he lives to face FAA actions, then he is one lucky
: soul.

Well-said. But then again if it weren't for pedantic arguments, most of
what's on rec.aviation.ifr wouldn't exist.

-Cory

--

************************************************** ***********************
* Cory Papenfuss *
* Electrical Engineering candidate Ph.D. graduate student *
* Virginia Polytechnic Institute and State University *
************************************************** ***********************

Another whack at a dead horse. Let's go back a few messages to where you
castigated me for quoting "old" case law. Are you aware of the concept of
settled law? Miranda vs Arizona was a 1963 case, but you won't find a law
enforcement officer who is not painfully aware that it is in full effect
today. Administrator vs Bowen was a 1946 case; Administrator vs Irmisch was
a 1976 case *which referred to Bowen as a precedent.* Administrator vs
Groszer was a 1993 case *which referred to Bowen as a precedent.* The 2004
case that John Yodice wrote about in AOPA Pilot referred to Bowen. To the
judges in the latter case, Bowen was not an old case, it was the
precedent-setting case.

Ever go into a law office, or see one on TV? See those shelves lined with
law books? When someone brings a cause of action to a lawyer, that lawyer
goes to those bookshelves and reviews OLD CASES searching for applicable
precedents. Should he or she fail to discover a precedent that is on point,
the opposing attorney will rub their nose in it.

This discussion of the legal system comes only because you don't seem to
realize that once a point of law becomes "settled," it takes further legal
or legislative action to point out where its findings were in error and
overturn it. You may have read something in the papers about Roe vs Wade??

Where something is published in the AIM is a side issue; my main point is
that the AIM cannot overturn settled law.

You have a lot to offer these newsgroups, and I enjoy reading your posts.
You just have this issue wrong. Take the time to call your local FSDO or the
Regional Counsel and get their take on the subject.


Bob Gardner

Gary Drescher" wrote in message
. ..
"Bob Gardner" wrote in message
...
I am saying that, despite Gary's use of the words implicit and explicit,

Actually, I didn't use the word 'implicit'. But yes, I did point out that
the AIM now explicitly distinguishes forecast icing conditions from known
icing conditions. I'm baffled as to how you could disagree (given the
definitions I quoted), but if you do, I'd be grateful if you'd explain
why.

a section of the AIM dealing with pilot reports is not the place to be
looking for validation of what constitutes known icing.

Huh? The icing defintions I quoted are from the Meteorology section of the
AIM's Safety of Flight chapter. That's not the place to look for the
meaning of known icing? Even though you would in fact find the definition
if you looked there? (And even though that's the *only* place the FAA has
published a definition of known or forecast icing conditions?)

Yes, elsewhere in the same section (but not in the same subsection), the
AIM talks about PIREPs. If that proximity somehow impugns the FAA's icing
definitions, I am at a loss to imagine how, and would again be grateful
for any semblance of an explanation.

Thanks,
Gary

"Bob Gardner" wrote in message
...
Let's go back a few messages to where you castigated me for quoting "old"
case law.

No, that's incorrect. My objection was never just that the cases were "old".
Of course I agree with you that old cases often establish well settled
decisions.

Rather, my objection is that the old cases address a question that is no
longer applicable. The question they address is this: in the absence of an
explicit published definition by the FAA of "known icing conditions", is it
reasonable in an enforcement action for the FAA to construe that term to
refer to conditions that are forecast but unobserved? And the answer from
the case law is clearly yes.

But as of 2005, the FAA *has* published an explicit definition of the term,
and has done so in the AIM, a publication that is intended in part to
explain and clarify to pilots some details of the regulations (even though
the AIM's contents do not themselves *constitute* regulations).

So *now* the question before an appeals court would be: given that the FAA
has published an explicit defintion of "known icing conditions"--a defintion
that *excludes* conditions that are forecast but unobserved--and has advised
pilots (via the AIM) to use that definition, is it reasonable in an
enforcement action for the FAA to construe that term to refer to conditions
that are forecast but unobserved?

It's obvious that that's an entirely different question from the one
addressed by the previous cases, and that it has an entirely different
answer. Thus, the previous cases simply do not address the current
question--they are not applicable precedents.

my main point is that the AIM cannot overturn settled law.

And I've given two replies to that point, neither of which you've rebutted:
1) As just noted, it's not a matter of "overturning" any previous ruling at
all; rather, the previous rulings addressed a different question that is no
longer even applicable. The answer to the *old* question is still yes (so
that answer is not overturned); but the answer to the *new* question is no.
2) As I explained in previous posts, even if (very implausibly) the FAA
could somehow argue that the term "known icing conditions" shouldn't be
construed to mean what the FAA now explicitly defines it to mean, they
*still* couldn't win, because by publishing a "false" defintion in the AIM,
the FAA would be guilty of entrapping pilots into committing an infraction.

In order to make your position tenable, you'd have to refute both of those
replies. In fact, you've addressed neither, instead simply repeating the
claim that I already replied to (that is, the claim that there are case-law
precedents that apply to the *current* situation; in reality, there aren't).

You have a lot to offer these newsgroups, and I enjoy reading your posts.
You just have this issue wrong. Take the time to call your local FSDO or
the Regional Counsel and get their take on the subject.

Bob, I enjoy your posts as well--even the ones in this thread.

But I see no need to call my FSDO to ask them a question that the AIM
already clearly answers. As always, if you have any evidence or arguments to
support your position, I'll be glad to listen. So far, though, nothing
you've said gives me any reason to think the FAA could or would prosecute a
pilot for abiding by the AIM: there is no precedent for their trying to do
that, no explanation of how it could survive judicial review, and no
statement by the FAA denying their intention to stand by the definitions
they currently publish in the AIM.

Regards,
Gary

But as of 2005, the FAA *has* published an explicit definition of the term,
and has done so in the AIM, a publication that is intended in part to
explain and clarify to pilots some details of the regulations (even though
the AIM's contents do not themselves *constitute* regulations).

.... and thus do not constitute legal definitions either.

Let's ask a different question. Suppose it comes to the FAA's attention
that a pilot flew undeiced into conditions which no longer constitute
"known icing" under the new AIM definition (but once did), and the FAA
decided to pursue legal action against the pilot on the basis of their
old definition and case law. Since the FAA gets to interpret the rules
their way, suppose the FAA even wins the case. What recourse does the
AIM give the pilot, which would be recognized by appropriate judicial
people to get the pilot off the hook?

Especially given their applictaion of "careless and reckless" to actions
which are =specifically= legal (IFR flight in IMC in uncontrolled airspace).

So far, though, nothing
you've said gives me any reason to think the FAA could or would prosecute a
pilot for abiding by the AIM: there is no precedent for their trying to do
that, no explanation of how it could survive judicial review, and no
statement by the FAA denying their intention to stand by the definitions
they currently publish in the AIM.

They have prosecuted pilots for abiding by the FARs, why not the AIM.
The case I refer to (iirc) involved a pilot who took off from an
uncontrolled field in uncontrolled airspace; after making his own
determination that it would be safe, he took off IFR and was busted as
"careless or reckless".

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

"Jose" wrote in message
. com...
But as of 2005, the FAA *has* published an explicit definition of the
term, and has done so in the AIM, a publication that is intended in part
to explain and clarify to pilots some details of the regulations (even
though the AIM's contents do not themselves *constitute* regulations).

... and thus do not constitute legal definitions either.

It's a definition that has legal ramifications, for the two reasons I gave
in my previous post.

Let's ask a different question. Suppose it comes to the FAA's attention
that a pilot flew undeiced into conditions which no longer constitute
"known icing" under the new AIM definition (but once did), and the FAA
decided to pursue legal action against the pilot on the basis of their old
definition and case law. Since the FAA gets to interpret the rules their
way, suppose the FAA even wins the case. What recourse does the AIM give
the pilot, which would be recognized by appropriate judicial people to get
the pilot off the hook?

You're asking what the basis for appeal would be if the FAA were to bust a
pilot for using the definition that the AIM told him to use?

That's precisely the question I already answered; I argued for two such
bases.

The first has to do with the interpretation of the FARs. Appeals courts have
granted the FAA wide latitude in saying what the regulations mean--but not
*absolute* latitude. The FAA's interpretation still has to pass a basic
"reasonableness" test. Would an ordinary person consider it *reasonable* for
the FAA to explicitly tell pilots, in its main advisory publication, to
interpret a regulatory term in a certain way, and then argue during an
enforcement action that that's the *wrong* way to interpret the term? I
don't see how anyone could argue that that would be reasonable.

The second basis for appeal is the entrapment argument. I've already
mentioned it a couple of times and no one has pointed out any flaw in it, so
I won't repeat it again.

They have prosecuted pilots for abiding by the FARs, why not the AIM. The
case I refer to (iirc) involved a pilot who took off from an uncontrolled
field in uncontrolled airspace; after making his own determination that it
would be safe, he took off IFR and was busted as "careless or reckless".

Being busted for careless or reckless flight is not being busted for abiding
by the FARs. Perhaps the ruling you vaguely recall was indeed unreasonable,
or perhaps the pilot was really being reckless on that occasion. We'd need a
lot more information to discuss it seriously (but it still wouldn't bear on
the current question).

--Gary

The second basis for appeal is the entrapment argument.

Given that the FAA can always bust you for careless or reckless, would
it be entrapment if they simply pulled that one out any time a nondeiced
pilot flew into forecast icing?

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

"Jose" wrote in message
. ..
The second basis for appeal is the entrapment argument.

Given that the FAA can always bust you for careless or reckless, would it
be entrapment if they simply pulled that one out any time a nondeiced
pilot flew into forecast icing?

No, that argument wouldn't apply in that case. But again there's a
reasonableness hurdle that the FAA has to meet. Suppose I pass through a
small cloud whose base is a few thousand feet above MEA when the forecast
says occasional moderate rime but the PIREPs are all negative for icing. The
FAA could not credibly argue that I was careless or reckless.

In every case I've seen cited over the years in which the FAA successfully
invoked the careless-or-reckless clause, the conduct in question did in fact
strike me as unsafe. I'm unaware of any successful, blatantly ridiculous
invocation of that clause by the FAA. But if you know of any, I'd certainly
be interested to see documentation of it.

My only concern here is that I see too many pilots tying themselves in knots
trying to comply with Usenet superstitions about things the FAA might bust
them for (like the one about logged flight time counting as "compensation"
when carrying passengers, even if the pilot pays for the time). My own
approach is just to apply common sense (for example, taking the FAA at face
value when they say in the AIM how to interpret a given regulatory term),
and I don't expect to get in any trouble for it. If I turn out to be wrong
about that, I'll be sure to let the group know.

--Gary

My own
approach is just to apply common sense (for example, taking the FAA at face
value when they say in the AIM how to interpret a given regulatory term),
and I don't expect to get in any trouble for it. If I turn out to be wrong
about that, I'll be sure to let the group know.

My first thought here is Darth Vader to Leia: "You're too trusting."

But I hope you're right.

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