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#21
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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 |
#22
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What's the latest on "forecast icing = known icing"
"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 |
#23
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What's the latest on "forecast icing = known icing"
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 * ************************************************** *********************** |
#24
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What's the latest on "forecast icing = known icing"
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 |
#25
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What's the latest on "forecast icing = known icing"
"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 |
#26
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What's the latest on "forecast icing = known icing"
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. |
#27
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What's the latest on "forecast icing = known icing"
"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 |
#28
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What's the latest on "forecast icing = known icing"
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. |
#29
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What's the latest on "forecast icing = known icing"
"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 |
#30
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What's the latest on "forecast icing = known icing"
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. |
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