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

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.