Flying through known or forecast icing

"Jose" wrote in message
.. .
The AIM presents the FAA's current official definition of "known icing
conditions". So any case law decided on the basis of prior explicit or
implicit definitions is no longer applicable.

Well, that might be true if the AIM were regulatory. It's not.

The AIM doesn't set forth regulations, but its subtitle is "Official Guide
to Basic Flight Information and ATC Procedures"; and it states in the
preface that it presents information that the FAA wants pilots use to
understand and interpret the regulations. There's no way the FAA could get
away with officially telling pilots to use a given explicit definition, and
then prosecuting them for complying.

But of course I'm willing to entertain evidence that I'm wrong about that.
Is there any documented example of a successful enforcement action taken
against a pilot for using a definition in the then-current AIM rather than
using some other, unpublished definition that the FAA proposes instead?

--Gary

There's no way the FAA could get
away with officially telling pilots to use a given explicit definition, and
then prosecuting them for complying.

That is a statement of faith. It is a faith I do not have.

I don't know if there's any evidence yet of being prosecuted for obeying
the AIM.

Jose
--
You can choose whom to befriend, but you cannot choose whom to love.
for Email, make the obvious change in the address.

Gary Drescher wrote:

The AIM doesn't set forth regulations, but its subtitle is "Official Guide
to Basic Flight Information and ATC Procedures"; and it states in the
preface that it presents information that the FAA wants pilots use to
understand and interpret the regulations. There's no way the FAA could get
away with officially telling pilots to use a given explicit definition, and
then prosecuting them for complying.

There's every way. In the first place, case law trumps everything. In the second
place, the Federal administrative court system has an explicit policy that any
government agency has the last word in interpreting its own regulations. The
only time the court will rule against the FAA is when the FAA attempts to
interpret a regulation in a fashion that is different from an earlier
interpretation. In other words, the FAA can't violate a pilot for doing
something one way and then violate another pilot for doing just the opposite.
Other than that, the FAA can interpret the regulations any way they see fit.

George Patterson
Coffee is only a way of stealing time that should by rights belong to
your slightly older self.

Maybe, but I really doubt it unless my problem resulted in an accident
or maybe a "deal" for the controller if I had to make a descent that
they couldn't clear quickly enough. Even though I've flown in northeast
winters for 28 years and tend to "take a look" even if icing is a
possibility, I've only once ever gotten into anything I'd call trouble.
Even then, I didn't need to declare, I just needed a block altitude
clearance so I could descend until I could maintain altitude.
Fortunately, I reached the equilibrium altitude prior to reaching ground
elevation. :-)

So what you're saying is that you're lucky to be alive.

"Jose" wrote in message
...
There's no way the FAA could get away with officially telling pilots to
use a given explicit definition, and then prosecuting them for complying.

That is a statement of faith. It is a faith I do not have.

I wouldn't call it faith. There are some violations of due process that are
so blatantly absurd that (empirically) they can't survive judicial review
(except when there's a powerful vested interest involved; but that's not the
case when it comes to busting a random private pilot for flying into icing
conditions).

I don't know if there's any evidence yet of being prosecuted for obeying
the AIM.

I'd say that until and unless some such evidence comes to light, the a
priori likelihood of such an event is so low that it's not worth taking the
possibility seriously.

--Gary

"George Patterson" wrote in message
news:K0rof.16285$Ea6.4779@trnddc08...
Gary Drescher wrote:

The AIM doesn't set forth regulations, but its subtitle is "Official
Guide to Basic Flight Information and ATC Procedures"; and it states in
the preface that it presents information that the FAA wants pilots use to
understand and interpret the regulations. There's no way the FAA could
get away with officially telling pilots to use a given explicit
definition, and then prosecuting them for complying.

There's every way. In the first place, case law trumps everything.

No it doesn't. But even if it did, case law is grounded in existing
regulations and official documents that elaborate those regulations. And if
those change, then the prior case law is simply no longer addressing the
current situation.

In the second place, the Federal administrative court system has an
explicit policy that any government agency has the last word in
interpreting its own regulations. The only time the court will rule
against the FAA is when the FAA attempts to interpret a regulation in a
fashion that is different from an earlier interpretation. In other words,
the FAA can't violate a pilot for doing something one way and then violate
another pilot for doing just the opposite. Other than that, the FAA can
interpret the regulations any way they see fit.

George, what evidence do you have that that's the sole basis on which an
administrative court will overrule the FAA? In particular, what evidence is
there that other forms of blatant violation of due process are not also
grounds for overturning an FAA verdict? (Officially instructing pilots to do
something, and then busting them for complying, is as flagrant a violation
of due process as one can imagine.)

--Gary

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" 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."

This was added to the legal statutes in 1994.

George Patterson
Coffee is only a way of stealing time that should by rights belong to
your slightly older self.

Gary Drescher wrote:
"George Patterson" wrote in message
news:_Qpof.17301$Jz6.14963@trnddc06...

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.


The AIM presents the FAA's current official definition of "known icing
conditions". So any case law decided on the basis of prior explicit or
implicit definitions is no longer applicable.

But isn't it the NTSB that usually makes the final determination on the
appeal?

Matt

Paul Folbrecht wrote:

Maybe, but I really doubt it unless my problem resulted in an accident
or maybe a "deal" for the controller if I had to make a descent that
they couldn't clear quickly enough. Even though I've flown in
northeast winters for 28 years and tend to "take a look" even if icing
is a possibility, I've only once ever gotten into anything I'd call
trouble. Even then, I didn't need to declare, I just needed a block
altitude clearance so I could descend until I could maintain altitude.
Fortunately, I reached the equilibrium altitude prior to reaching
ground elevation. :-)


So what you're saying is that you're lucky to be alive.

In that case, yes, luck played a role. But I was also starting out at a
very high altitude (11,000', which was 2,000 feet above where any icing
was forecast) and flying away from the icing conditions (Lake Erie) with
a 60K tailwind, so I did have many things in my favor. Hitting ice that
high certainly wasn't expected though or I would have deviated farther
south of the Lake.

Matt

"Matt Whiting" wrote in message
...
Gary Drescher wrote:
The AIM presents the FAA's current official definition of "known icing
conditions". So any case law decided on the basis of prior explicit or
implicit definitions is no longer applicable.

But isn't it the NTSB that usually makes the final determination on the
appeal?

No, the courts do. Our system of government has independent executive,
legislative and judicial branches that provide checks and balances on one
another. No executive or legislative agency is invulnerable to judicial
review.

Here's what the NTSB itself says about it: "If either the FAA or
the airman is dissatisfied with the [administrative law] judge's decision,
a further appeal may be taken to the NTSB's full five-member Board.
If the airman or FAA is dissatisfied with the full Board's order, either
may obtain judicial review in a federal appeals court. However, the
FAA can only appeal the Board's order in cases that it determines
may have a significant adverse impact on the implementation of the
Federal Aviation Act."
(http://www.ntsb.gov/abt_ntsb/olj.htm)
--Gary