Flying through known or forecast icing

[John Doe]

Ok, I know this is one of those "it depends" answers, but I'm curious as to
what folks are willing to do in the winter time.

Assumptions:

Single engine piston aircraft with NO de-icing equipment.

Situation:

It's wintertime. You want to fly XC and there are midlevel clouds in the
forecast with the potential for icing to occur.

It looks like the band is thin enough to climb through and cruise in the
clear above the weather.

SO:

1) If the cloud layer is forecast to potentially have icing, can you legally
and would you climb through the layer to get up high for your trip? how
thick a layer, type of forecast, time spent in the layer, etc. What would
you be willing to risk transition through possible icing?

2) Would that change any if those same conditions were now reported icing
from a recent PIREP?

3) If it's reported, can you transit the cloud layer legally?

4) Let's say yoru trip starts off VFR but by the time you get to your
destination, a cloud layer has formed that has reported icing in it. Can or
or would you be willing to transit this layer to land at this destionation
or would you turn around or divert to land someplace to stay out of the
clouds?

Thanks.

[[email protected]]

John Doe wrote:
> Ok, I know this is one of those "it depends" answers, but I'm curious as to
> what folks are willing to do in the winter time.
>
> Assumptions:
>
> Single engine piston aircraft with NO de-icing equipment.
>
> Situation:
>
> It's wintertime. You want to fly XC and there are midlevel clouds in the
> forecast with the potential for icing to occur.
>
> It looks like the band is thin enough to climb through and cruise in the
> clear above the weather.
>
> SO:
>
> 1) If the cloud layer is forecast to potentially have icing, can you legally
> and would you climb through the layer to get up high for your trip? how
> thick a layer, type of forecast, time spent in the layer, etc. What would
> you be willing to risk transition through possible icing?
**A. Known icing vs forecast are two different animals. It has been my
experience that ice generally appears in longitudinal bands of varying
depth and width. I'll make a climb thru the clouds watching for any
signs of ice and with my anti ice on. Most of the time I can get to on
top conditions or out of the ice band before any serious problems
occur. If I am cruising and start picking up ice, I'll usually ask for
higher...my reasoning being the temps will drop even more reducing the
possibility of more ice and if not, I can always go lower where
hopefully the temps will get above the ice range. Either way, an
altitude change nearly always cures the problem. Over the mountains you
are limited in altitude reduction?
>
> 2) Would that change any if those same conditions were now reported icing
> from a recent PIREP?
**B If there is a current PIREP of ice, I'll get a higher altitude
rather than take a chance of taking on a load that I can't handle. Like
I said, horizontal bands of ice and if you hit it the long way, you'll
be in the ice for ??? If you penetrate it perpendicular, your exposure
to ice is much shorter. However, even brief exposure to severe ice can
bring you down like an aluminum snowflake and not very pretty!
>
> 3) If it's reported, can you transit the cloud layer legally?
**C Not unless you have an aircraft certified for known icing.
>
> 4) Let's say yoru trip starts off VFR but by the time you get to your
> destination, a cloud layer has formed that has reported icing in it. Can or
> or would you be willing to transit this layer to land at this destionation
> or would you turn around or divert to land someplace to stay out of the
> clouds?
**D. Not this pilot! I'll take a divert rather than drop down thru
known icing. Twice I have been forced to the ground with rapid ice
accumulation and was lucky to make it to the end of a runway both
times. I've picked up severe ice in a number of aircraft that had
anti-ice and de-ice equipment and still did some serious perspiring
while I got thru it. Ain't something you can fool with for long without
going to the ground like an ice cube!
PIREPS are the most reliable source of icing information and I'll
always ask/give them even if I get just a trace. I flew regular freight
routes in the Great Lakes, and in the Rockies with single and twin
engine aircraft for years.
>
> Thanks.

[George Patterson]

John Doe wrote:

> 1) If the cloud layer is forecast to potentially have icing, can you legally
> and would you climb through the layer to get up high for your trip? how
> thick a layer, type of forecast, time spent in the layer, etc. What would
> you be willing to risk transition through possible icing?

No. Legally, forecast ice is "known icing."

> 4) Let's say yoru trip starts off VFR but by the time you get to your
> destination, a cloud layer has formed that has reported icing in it. Can or
> or would you be willing to transit this layer to land at this destionation
> or would you turn around or divert to land someplace to stay out of the
> clouds?

If I want to stay VFR, I won't be transiting any clouds. Being unwilling to risk
a violation if I file IFR and then fly through reported icing, I would divert.

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

[Bob Gardner]

George, your heart is in the right place...but if you think that someone at
ATC has a pad of ticket forms just ready to write you up, you are sadly
mistaken. I was told by an officer of the controller's union that
controllers are not interested in the certification status of an airplane or
a pilot.

A former Assistant Administrator for Regulations and Certification told me
that it is the pilot who encounters icing conditions and makes no attempt to
escape who would get a violation...but only if that failure resulted in an
accident/incident or required special handling by ATC. No one at a Center
operating position knows if a pilot climbs or descends through a cloud.

Bob Gardner

"George Patterson" > wrote in message
news:vPXnf.12379$Jz6.1184@trnddc06...
> John Doe wrote:
>
>> 1) If the cloud layer is forecast to potentially have icing, can you
>> legally and would you climb through the layer to get up high for your
>> trip? how thick a layer, type of forecast, time spent in the layer, etc.
>> What would you be willing to risk transition through possible icing?
>
> No. Legally, forecast ice is "known icing."
>
>> 4) Let's say yoru trip starts off VFR but by the time you get to your
>> destination, a cloud layer has formed that has reported icing in it. Can
>> or or would you be willing to transit this layer to land at this
>> destionation or would you turn around or divert to land someplace to stay
>> out of the clouds?
>
> If I want to stay VFR, I won't be transiting any clouds. Being unwilling
> to risk a violation if I file IFR and then fly through reported icing, I
> would divert.
>
> George Patterson
> Coffee is only a way of stealing time that should by rights belong to
> your slightly older self.

[George Patterson]

Bob Gardner wrote:
> George, your heart is in the right place...but if you think that someone at
> ATC has a pad of ticket forms just ready to write you up, you are sadly
> mistaken. I was told by an officer of the controller's union that
> controllers are not interested in the certification status of an airplane or
> a pilot.

No, I don't think "they" are just waiting to write me up, but the OP asked if it
was *legal*, and it's not.

> A former Assistant Administrator for Regulations and Certification told me
> that it is the pilot who encounters icing conditions and makes no attempt to
> escape who would get a violation...but only if that failure resulted in an
> accident/incident or required special handling by ATC. No one at a Center
> operating position knows if a pilot climbs or descends through a cloud.

I've been told that too; however, I'm not going to go through clouds without an
IFR clearance, and I wouldn't take either of the aircraft I've owned through an
area in which icing has been reported. Now, if icing had only been *forecast* in
that area but not reported, and the bottom of the cloud deck was well above
minimums, I would chance it.

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

[[email protected]]

: No. Legally, forecast ice is "known icing."

Not to tangent too much, but doesn't that regulation regarding "prohibited
flight into known icing conditions" without certified de-ice equipment loophole old
planes? I seem to recall something about if the POH for the aircraft does not say the
magic words, "Flight into icing conditions prohibited," then it's not illegal.
Certainly not a good idea and guaranteed to bite you on "careless and wreckless" if
something happens, but strictly speaking not immediately illegal.

With the scAIRMETS for icing constituting "known-icing" everywhere north of
the Carolinas for significant chunks out of the year, most GA planes are operating
illegally.

-Cory

--

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

[Bill]

Tain't legal. The simple answer.

The more important question is: Can you figure out a way to do it
safely
so you don't draw attention to yourself?

For example... you never punch up thru a layer unless you have pilot
reports about
tops or you stay over a place that has wx good enough to get back with
100% certaintly if things go badly as you try to get on top.

As you go along, you must be sure you always have a 100% out. If it's
less than a 100%, you might get in a bad situation.

So you can operate not legally but with safety if you can figure this
out.
If you can't play out the whole solution, or don't have a continuously
updated 100% out, it's a no go.

On top is the answer in little airplanes. You don't start down until
you can get cleared the whole way down. You need good deals with
ATC to get this. Never descend thru a layer unless you have
reported weather underneath and are absolutely sure you can make
the approach. Search on N100KC for a dreadful example of violating
this idea.

The guys who claim they will never do this actually will when the
chips are down! So best is to think the problem through in great
detail rather than assume you will never do it.

Just one more thing: Always understand the wx well enough to
recognize the chance for freezing rain. It will bring you down! Night
time
makes this all much worse!

Bill Hale

[Andrew Sarangan]

As you said, the answer 'depends' on how risk averse you are.

Legally, the answer is, you cannot climb into icing conditions
(forecast or reported) no matter how thin the layer is.

In reality, you can use some judgement in the decision. Is the freezing
level above the MEA? It is icing rime or clear? How thin is the layer?

ATC is not traffic cops. Their job is to keep you separated from other
traffic. They don't care whether you have de-icing equipment or not, or
whether you are complying with all the other FARs.

[Dave Butler]

wrote:

> Not to tangent too much, but doesn't that regulation regarding "prohibited
> flight into known icing conditions" without certified de-ice equipment loophole old
> planes? I seem to recall something about if the POH for the aircraft does not say the
> magic words, "Flight into icing conditions prohibited," then it's not illegal.

Right. The prohibition is not in the FARs, it's in the aircraft's airworthiness
certificate. The POH is derived from the airworthiness certificate.

[Gary Drescher]

> wrote in message
...
>: No. Legally, forecast ice is "known icing."
>
> Not to tangent too much, but doesn't that regulation regarding "prohibited
> flight into known icing conditions" without certified de-ice equipment
> loophole old
> planes? I seem to recall something about if the POH for the aircraft does
> not say the
> magic words, "Flight into icing conditions prohibited," then it's not
> illegal.
> Certainly not a good idea and guaranteed to bite you on "careless and
> wreckless" if
> something happens, but strictly speaking not immediately illegal.

No, there isn't any such loophole in the wording of the FARs: "91.527(b)
Except for an airplane that has ice protection provisions that meet the
requirements in section 34 of Special Federal Aviation Regulation No. 23, or
those for transport category airplane type certification, no pilot may
fly-(1) Under IFR into known or forecast moderate icing conditions; or (2)
Under VFR into known light or moderate icing conditions unless the aircraft
has functioning de-icing or anti-icing equipment...".

Notice that there is an explicit prohibition against flying into *known or
forecast* moderate icing conditions (that's under IFR; under VFR, the
prohibition applies to known (not forecast) light or moderate icing).

There is an exception though: "91.527(d) If current weather reports and
briefing information relied upon by the pilot in command indicate that the
forecast icing conditions that would otherwise prohibit the flight will not
be encountered during the flight because of changed weather conditions since
the forecast, the restrictions in paragraphs (b) and (c) of this section
based on forecast conditions do not apply".

So if there's a forecast for icing, but other evidence (such as PIREPs)
indicates that the predicted icing conditions have not come about, then the
forecast becomes moot. But a mere absence of PIREPs (or other evidence)
leaves the forecast-based prohibition intact--to override the forecast, you
need evidence of non-icing conditions, not just non-evidence of icing
conditions.

--Gary

[Gary Drescher]

"Dave Butler" > wrote in message
news:1134595839.771861@sj-nntpcache-3...
> wrote:
>
>> Not to tangent too much, but doesn't that regulation regarding
>> "prohibited flight into known icing conditions" without certified de-ice
>> equipment loophole old planes? I seem to recall something about if the
>> POH for the aircraft does not say the magic words, "Flight into icing
>> conditions prohibited," then it's not illegal.
>
> Right. The prohibition is not in the FARs, it's in the aircraft's
> airworthiness certificate. The POH is derived from the airworthiness
> certificate.

No, the prohibition is in the FARs--specifically, 91.527, quoted in my
previous note in this thread.

--Gary

[Jose]

> No, the prohibition is in the FARs--specifically, 91.527, quoted in my
> previous note in this thread.

That applies only to "large or turbine powered multi-engine" aircraft.

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

[Ron Natalie]

Gary Drescher wrote:

> No, there isn't any such loophole in the wording of the FARs: "91.527(b)

Sorry Garry...91.527 doesn't apply unless you are flying a large or
turbine powered aircraft.

[Gary Drescher]

"Ron Natalie" > wrote in message
...
> Gary Drescher wrote:
>
>> No, there isn't any such loophole in the wording of the FARs: "91.527(b)
>
> Sorry Gary...91.527 doesn't apply unless you are flying a large or
> turbine powered aircraft.

Oops, my mistake. Thanks for the correction.

--Gary

[Bob Gardner]

According to Scott Dennstaedt's article in the latest IFR magazine, we won't
be seeing Airmets (or Area Forecasts) after early 2006. Better graphic
displays will take their place. Big plus is that the forecast area is more
precisely defined in both scope and time.

Bob Gardner

> wrote in message
...
>: No. Legally, forecast ice is "known icing."
>
> Not to tangent too much, but doesn't that regulation regarding "prohibited
> flight into known icing conditions" without certified de-ice equipment
> loophole old
> planes? I seem to recall something about if the POH for the aircraft does
> not say the
> magic words, "Flight into icing conditions prohibited," then it's not
> illegal.
> Certainly not a good idea and guaranteed to bite you on "careless and
> wreckless" if
> something happens, but strictly speaking not immediately illegal.
>
> With the scAIRMETS for icing constituting "known-icing" everywhere north
> of
> the Carolinas for significant chunks out of the year, most GA planes are
> operating
> illegally.
>
> -Cory
>
> --
>
> ************************************************** ***********************
> * Cory Papenfuss *
> * Electrical Engineering candidate Ph.D. graduate student *
> * Virginia Polytechnic Institute and State University *
> ************************************************** ***********************
>

[Matt Whiting]

John Doe wrote:
> Ok, I know this is one of those "it depends" answers, but I'm curious as to
> what folks are willing to do in the winter time.
>
> Assumptions:
>
> Single engine piston aircraft with NO de-icing equipment.
>
> Situation:
>
> It's wintertime. You want to fly XC and there are midlevel clouds in the
> forecast with the potential for icing to occur.
>
> It looks like the band is thin enough to climb through and cruise in the
> clear above the weather.
>
> SO:
>
> 1) If the cloud layer is forecast to potentially have icing, can you legally
> and would you climb through the layer to get up high for your trip? how
> thick a layer, type of forecast, time spent in the layer, etc. What would
> you be willing to risk transition through possible icing?

I believe the recent interpretations is that this would be illegal as
the cloud layer at below freezing temps would constitute an area of
"known" icing and thus penetrating it would not be legal. As to what I
would do personally ... well, I won't answer that here! :-)


> 2) Would that change any if those same conditions were now reported icing
> from a recent PIREP?

It would change my personal view of the situation, but I don't think it
changes the legality.


> 3) If it's reported, can you transit the cloud layer legally?

I don't believe you can do so legally.


> 4) Let's say yoru trip starts off VFR but by the time you get to your
> destination, a cloud layer has formed that has reported icing in it. Can or
> or would you be willing to transit this layer to land at this destionation
> or would you turn around or divert to land someplace to stay out of the
> clouds?

Again it depends, but if I had sufficient fuel, I'd probably divert. If
I was low on fuel, I'd descend through the layer.

Matt

[[email protected]]

How about the flight when you are VFR and encounter freezing rain with
resulting clear ice accumulation? Had it happen long about 1967 in a
brand new Cessna Cardinal in Louisiana and barely made it to the
overrun area at the approach end of the airport in Hammond, LA. Never
saw it coming and suddenly I was covered in ice......

[Matt Whiting]

Bob Gardner wrote:

> George, your heart is in the right place...but if you think that someone at
> ATC has a pad of ticket forms just ready to write you up, you are sadly
> mistaken. I was told by an officer of the controller's union that
> controllers are not interested in the certification status of an airplane or
> a pilot.
>
> A former Assistant Administrator for Regulations and Certification told me
> that it is the pilot who encounters icing conditions and makes no attempt to
> escape who would get a violation...but only if that failure resulted in an
> accident/incident or required special handling by ATC. No one at a Center
> operating position knows if a pilot climbs or descends through a cloud.

This has certainly been my experience also. I recently flew from
Lebanon, NH to ELM on a day with the freezing level around 4,000 and an
MEA of 6,000 across the mountains of southern VT. I picked up some
light rime and requested higher and got between layers. The clouds
again arose to smite me, so I requested higher again and broke out on
top at 10,000. My requests were calm and matter of fact and the
controllers were extremely accomodating. There was never even a hint
that they questioned why I was flying an Arrow on such a day.

Matt

[Jim Carter]

George,
I've been away for a few years, but when did forecast icing
become known icing without a pirep or physical indications on the
ground? If they are the same thing now days, why are aircraft certified
for "Flight in known icing (FIKI)" and not just flight in icing
conditions?


> -----Original Message-----
> From: George Patterson ]
> Posted At: Wednesday, December 14, 2005 11:16 AM
> Posted To: rec.aviation.ifr
> Conversation: Flying through known or forecast icing
> Subject: Re: Flying through known or forecast icing
>
> Bob Gardner wrote:
> > George, your heart is in the right place...but if you think that
someone
> at
> > ATC has a pad of ticket forms just ready to write you up, you are
sadly
> > mistaken. I was told by an officer of the controller's union that
> > controllers are not interested in the certification status of an
> airplane or
> > a pilot.
>
> No, I don't think "they" are just waiting to write me up, but the OP
asked
> if it
> was *legal*, and it's not.
>
> > A former Assistant Administrator for Regulations and Certification
told
> me
> > that it is the pilot who encounters icing conditions and makes no
> attempt to
> > escape who would get a violation...but only if that failure resulted
in
> an
> > accident/incident or required special handling by ATC. No one at a
> Center
> > operating position knows if a pilot climbs or descends through a
cloud.
>
> I've been told that too; however, I'm not going to go through clouds
> without an
> IFR clearance, and I wouldn't take either of the aircraft I've owned
> through an
> area in which icing has been reported. Now, if icing had only been
> *forecast* in
> that area but not reported, and the bottom of the cloud deck was well
> above
> minimums, I would chance it.
>
> George Patterson
> Coffee is only a way of stealing time that should by rights
belong
> to
> your slightly older self.

[Paul Folbrecht]

I can answer that one: in 1974.

2nd question: forecast icing IS "KNOWN ICING *CONDITIONS*".

Jim Carter wrote:
> George,
> I've been away for a few years, but when did forecast icing
> become known icing without a pirep or physical indications on the
> ground? If they are the same thing now days, why are aircraft certified
> for "Flight in known icing (FIKI)" and not just flight in icing
> conditions?

[Bob Gardner]

You sure have been away for a few years. As George said, in Adminstrator vs
Bowen, in 1974, the Administrative Law Judge said, more or less, "known does
not mean a near-certainty of icing conditions, only that icing conditions
are being reported or forecast."

This was updated, and re-emphasized in 2005. Read this:

http://www.aopa.org/members/files/pilot/2005/pc0508.html

In a case not noted in either source, the NTSB referred to pilot reports as
"anectodal evidence" and said that pilots had to rely on government reports,
period. This 2005 case gives pilot reports a little more slack.

Bob Gardner


"Jim Carter" > wrote in message
et...
> George,
> I've been away for a few years, but when did forecast icing
> become known icing without a pirep or physical indications on the
> ground? If they are the same thing now days, why are aircraft certified
> for "Flight in known icing (FIKI)" and not just flight in icing
> conditions?
>
>
>> -----Original Message-----
>> From: George Patterson ]
>> Posted At: Wednesday, December 14, 2005 11:16 AM
>> Posted To: rec.aviation.ifr
>> Conversation: Flying through known or forecast icing
>> Subject: Re: Flying through known or forecast icing
>>
>> Bob Gardner wrote:
>> > George, your heart is in the right place...but if you think that
> someone
>> at
>> > ATC has a pad of ticket forms just ready to write you up, you are
> sadly
>> > mistaken. I was told by an officer of the controller's union that
>> > controllers are not interested in the certification status of an
>> airplane or
>> > a pilot.
>>
>> No, I don't think "they" are just waiting to write me up, but the OP
> asked
>> if it
>> was *legal*, and it's not.
>>
>> > A former Assistant Administrator for Regulations and Certification
> told
>> me
>> > that it is the pilot who encounters icing conditions and makes no
>> attempt to
>> > escape who would get a violation...but only if that failure resulted
> in
>> an
>> > accident/incident or required special handling by ATC. No one at a
>> Center
>> > operating position knows if a pilot climbs or descends through a
> cloud.
>>
>> I've been told that too; however, I'm not going to go through clouds
>> without an
>> IFR clearance, and I wouldn't take either of the aircraft I've owned
>> through an
>> area in which icing has been reported. Now, if icing had only been
>> *forecast* in
>> that area but not reported, and the bottom of the cloud deck was well
>> above
>> minimums, I would chance it.
>>
>> George Patterson
>> Coffee is only a way of stealing time that should by rights
> belong
>> to
>> your slightly older self.
>

[Jim Carter]

Bob,
I don't see how your response answered my question which was
essentially: "is forecast icing the same a known icing"? In the article
on aopa.org, the formidable piece of evidence in the case is the Pireps
of rime ice. This used to mean that the icing conditions have become
known because a pilot reported they actually occurred. Even if they were
forecast, they weren't known until a) some pilot reported it, or b)
evidence started appearing on the ground (like freezing rain or sleet).

The quote by the Law Judge seems to very ambiguous when taken
out of context -- if known means that icing is being reported then what
difference does it make if they were "near-certain" or not?

Even the large aircraft reg 91.527 only states that flight into
forecast MODERATE or severe is prohibited, even though that isn't
relative to this discussion.

The aopa article you referenced also indicated there is no FAR
covering non-commercial operation and flight into forecast icing
conditions. So back to my original question, when did "forecast" come to
be equivalent to "known"?



> -----Original Message-----
> From: Bob Gardner ]
> Posted At: Wednesday, December 14, 2005 10:56 PM
> Posted To: rec.aviation.ifr
> Conversation: Flying through known or forecast icing
> Subject: Re: Flying through known or forecast icing
>
> You sure have been away for a few years. As George said, in
Adminstrator
> vs
> Bowen, in 1974, the Administrative Law Judge said, more or less,
"known
> does
> not mean a near-certainty of icing conditions, only that icing
conditions
> are being reported or forecast."
>
> This was updated, and re-emphasized in 2005. Read this:
>
> http://www.aopa.org/members/files/pilot/2005/pc0508.html
>
> In a case not noted in either source, the NTSB referred to pilot
reports
> as
> "anectodal evidence" and said that pilots had to rely on government
> reports,
> period. This 2005 case gives pilot reports a little more slack.
>
> Bob Gardner
>
>
> "Jim Carter" > wrote in message
> et...
> > George,
> > I've been away for a few years, but when did forecast icing
> > become known icing without a pirep or physical indications on the
> > ground? If they are the same thing now days, why are aircraft
certified
> > for "Flight in known icing (FIKI)" and not just flight in icing
> > conditions?
> >
> >
> >> -----Original Message-----
> >> From: George Patterson ]
> >> Posted At: Wednesday, December 14, 2005 11:16 AM
> >> Posted To: rec.aviation.ifr
> >> Conversation: Flying through known or forecast icing
> >> Subject: Re: Flying through known or forecast icing
> >>
> >> Bob Gardner wrote:
> >> > George, your heart is in the right place...but if you think that
> > someone
> >> at
> >> > ATC has a pad of ticket forms just ready to write you up, you are
> > sadly
> >> > mistaken. I was told by an officer of the controller's union that
> >> > controllers are not interested in the certification status of an
> >> airplane or
> >> > a pilot.
> >>
> >> No, I don't think "they" are just waiting to write me up, but the
OP
> > asked
> >> if it
> >> was *legal*, and it's not.
> >>
> >> > A former Assistant Administrator for Regulations and
Certification
> > told
> >> me
> >> > that it is the pilot who encounters icing conditions and makes no
> >> attempt to
> >> > escape who would get a violation...but only if that failure
resulted
> > in
> >> an
> >> > accident/incident or required special handling by ATC. No one at
a
> >> Center
> >> > operating position knows if a pilot climbs or descends through a
> > cloud.
> >>
> >> I've been told that too; however, I'm not going to go through
clouds
> >> without an
> >> IFR clearance, and I wouldn't take either of the aircraft I've
owned
> >> through an
> >> area in which icing has been reported. Now, if icing had only been
> >> *forecast* in
> >> that area but not reported, and the bottom of the cloud deck was
well
> >> above
> >> minimums, I would chance it.
> >>
> >> George Patterson
> >> Coffee is only a way of stealing time that should by rights
> > belong
> >> to
> >> your slightly older self.
> >

[Jim Carter]

Bob, et al,



Disregard my immediately previous post please. Here is the
important excerpt from that article that indicates known is the same a
forecast:




The law on 'known icing'


BY JOHN S. YODICE (From <http://www.aopa.org/members/files/pilot/> AOPA
Pilot, August 2005.)

The board, squarely facing the issue, held that "known does not mean a
near-certainty of icing conditions, only that icing conditions are being
reported or forecast." A forecast of "the potential" for icing is "known
icing conditions" to a pilot. The 1974 and 1976 cases hold the same way.



The NTSB precedents are clear. Relevant pireps and forecasts constitute
"known icing conditions" into which a flight is prohibited unless the
aircraft is specifically certificated by the FAA for flight into known
icing conditions.









So it sounds like the mere mention of icing anywhere near the
route of flight means no-go without FIKI certification. I wonder if the
first flight out on an IFR day that broadcast a fake-pirep of known
icing just slams the door for everyone lined up behind him? The way this
is worded known, forecast, it doesn't really matter. All you have to do
is mention the word ice and someone's the loser.





> -----Original Message-----

> From: Bob Gardner ]

> Posted At: Wednesday, December 14, 2005 10:56 PM

> Posted To: rec.aviation.ifr

> Conversation: Flying through known or forecast icing

> Subject: Re: Flying through known or forecast icing

>

> You sure have been away for a few years. As George said, in
Adminstrator

> vs

> Bowen, in 1974, the Administrative Law Judge said, more or less,
"known

> does

> not mean a near-certainty of icing conditions, only that icing
conditions

> are being reported or forecast."

>

> This was updated, and re-emphasized in 2005. Read this:

>

> http://www.aopa.org/members/files/pilot/2005/pc0508.html

>

> In a case not noted in either source, the NTSB referred to pilot
reports

> as

> "anectodal evidence" and said that pilots had to rely on government

> reports,

> period. This 2005 case gives pilot reports a little more slack.

>

> Bob Gardner

>

>

> "Jim Carter" > wrote in message

> et...

> > George,

> > I've been away for a few years, but when did forecast icing

> > become known icing without a pirep or physical indications on the

> > ground? If they are the same thing now days, why are aircraft
certified

> > for "Flight in known icing (FIKI)" and not just flight in icing

> > conditions?

> >

> >

> >> -----Original Message-----

> >> From: George Patterson ]

> >> Posted At: Wednesday, December 14, 2005 11:16 AM

> >> Posted To: rec.aviation.ifr

> >> Conversation: Flying through known or forecast icing

> >> Subject: Re: Flying through known or forecast icing

> >>

> >> Bob Gardner wrote:

> >> > George, your heart is in the right place...but if you think that

> > someone

> >> at

> >> > ATC has a pad of ticket forms just ready to write you up, you are

> > sadly

> >> > mistaken. I was told by an officer of the controller's union that

> >> > controllers are not interested in the certification status of an

> >> airplane or

> >> > a pilot.

> >>

> >> No, I don't think "they" are just waiting to write me up, but the
OP

> > asked

> >> if it

> >> was *legal*, and it's not.

> >>

> >> > A former Assistant Administrator for Regulations and
Certification

> > told

> >> me

> >> > that it is the pilot who encounters icing conditions and makes no

> >> attempt to

> >> > escape who would get a violation...but only if that failure
resulted

> > in

> >> an

> >> > accident/incident or required special handling by ATC. No one at
a

> >> Center

> >> > operating position knows if a pilot climbs or descends through a

> > cloud.

> >>

> >> I've been told that too; however, I'm not going to go through
clouds

> >> without an

> >> IFR clearance, and I wouldn't take either of the aircraft I've
owned

> >> through an

> >> area in which icing has been reported. Now, if icing had only been

> >> *forecast* in

> >> that area but not reported, and the bottom of the cloud deck was
well

> >> above

> >> minimums, I would chance it.

> >>

> >> George Patterson

> >> Coffee is only a way of stealing time that should by rights

> > belong

> >> to

> >> your slightly older self.

> >

[Brien K. Meehan]

The general icing AIRMET always contains the qualifier "in clouds and
precipitation". You're perfectly legal if you stay out of the clouds
and precipitation.

[[email protected]]

In rec.aviation.ifr Matt Whiting > wrote:
: This has certainly been my experience also. I recently flew from
: Lebanon, NH to ELM on a day with the freezing level around 4,000 and an
: MEA of 6,000 across the mountains of southern VT. I picked up some
: light rime and requested higher and got between layers. The clouds
: again arose to smite me, so I requested higher again and broke out on
: top at 10,000. My requests were calm and matter of fact and the
: controllers were extremely accomodating. There was never even a hint
: that they questioned why I was flying an Arrow on such a day.

Because you didn't have a problem, they don't have a problem. If you had
*had* a problem, they would have found this problem and busted you. Isn't it great?

-Cory

--

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

[Gary Drescher]

"Bob Gardner" > wrote in message
. ..
> As George said, in Adminstrator vs Bowen, in 1974, the Administrative Law
> Judge said, more or less, "known does not mean a near-certainty of icing
> conditions, only that icing conditions are being reported or forecast."

But that 1974 decision is at odds with the current AIM, which defines
various icing conditions in section 7-1-23
(http://www.faa.gov/atpubs/aim/Chap7/aim0701.html#7-1-23):

"Forecast Icing Conditions--Environmental conditions expected by a National
Weather Service or an FAA-approved weather provider to be conducive to the
formation of in-flight icing on aircraft."

"Known Icing Conditions--Atmospheric conditions in which the formation of
ice is observed or detected in flight."

So according to the AIM, forecast icing is not tantamount to known icing.
Rather, only a PIREP of icing (or a pilot's own observation in flight)
constitutes known icing.

Although the AIM isn't regulatory, it does purport to furnish information
that is relevant to a pilot's understanding of FAA regulations. So when the
latest AIM defines a term that the FARs use but don't define, it would
violate due process to expect pilots to know and use some other definition
instead. (Does anyone know if the current AIM definitions were present back
when the previous rulings on known vs. forecast icing conditions were
issued?)

--Gary

[pgbnh]

What if anything happens to the whole "known versus forecast" issue if there
is a pirep for "negative icing in clouds".
"Matt Whiting" > wrote in message
...
> John Doe wrote:
>> Ok, I know this is one of those "it depends" answers, but I'm curious as
>> to what folks are willing to do in the winter time.
>>
>> Assumptions:
>>
>> Single engine piston aircraft with NO de-icing equipment.
>>
>> Situation:
>>
>> It's wintertime. You want to fly XC and there are midlevel clouds in the
>> forecast with the potential for icing to occur.
>>
>> It looks like the band is thin enough to climb through and cruise in the
>> clear above the weather.
>>
>> SO:
>>
>> 1) If the cloud layer is forecast to potentially have icing, can you
>> legally and would you climb through the layer to get up high for your
>> trip? how thick a layer, type of forecast, time spent in the layer, etc.
>> What would you be willing to risk transition through possible icing?
>
> I believe the recent interpretations is that this would be illegal as the
> cloud layer at below freezing temps would constitute an area of "known"
> icing and thus penetrating it would not be legal. As to what I would do
> personally ... well, I won't answer that here! :-)
>
>
>> 2) Would that change any if those same conditions were now reported icing
>> from a recent PIREP?
>
> It would change my personal view of the situation, but I don't think it
> changes the legality.
>
>
>> 3) If it's reported, can you transit the cloud layer legally?
>
> I don't believe you can do so legally.
>
>
>> 4) Let's say yoru trip starts off VFR but by the time you get to your
>> destination, a cloud layer has formed that has reported icing in it. Can
>> or or would you be willing to transit this layer to land at this
>> destionation or would you turn around or divert to land someplace to stay
>> out of the clouds?
>
> Again it depends, but if I had sufficient fuel, I'd probably divert. If I
> was low on fuel, I'd descend through the layer.
>
> Matt

[George Patterson]

Gary Drescher wrote:

> So according to the AIM, forecast icing is not tantamount to known icing.
> Rather, only a PIREP of icing (or a pilot's own observation in flight)
> constitutes known icing.

Here's the punch line from one of Yodice's columns in AOPA Pilot. Emphasis added.

"The NTSB precedents are clear. Relevant pireps *and forecasts* constitute
'known icing conditions' into which a flight is prohibited unless the aircraft
is specifically certificated by the FAA for flight into known icing conditions."

AOPA members can view the entire article here
http://www.aopa.org/members/files/pilot/2005/pc0508.html

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

[Jim Macklin]

Under current FAA/NTSB rules, nothing, the forecast stands
until officially amended.

The old joke, summer time forecast...
Chance of severe thunderstorms and tornadoes along and 1,000
miles either side of a line from 150 miles south of
Washington, DC to 300 miles north of San Francisco, CA. Tops
to FL600.

Winter forecast, same line from an unknown location to an
unknown location, with this...
Blizzard and whiteout conditions over the continent and
coastal waters, chance of moderate to severe icing from the
surface to FL240.

The forecast calls "wolf" so many times that pilots and
ground pounders became complacent. At least here in Kansas,
the new standard for issuing a "severe thunderstorm warning"
was changed for the 2005 season. They increased the size of
the hailstones and the winds that trigger a warning so there
would be fewer warnings.

Since Kansas can have steady winds of 25 to 40 knots and
higher gusts, without being associated with any storm, the
severe T storm warning of gusts to 60 mph didn't really
alert most locals.


--
James H. Macklin
ATP,CFI,A&P

"pgbnh" > wrote in message
. ..
| What if anything happens to the whole "known versus
forecast" issue if there
| is a pirep for "negative icing in clouds".
| "Matt Whiting" > wrote in message
| ...
| > John Doe wrote:
| >> Ok, I know this is one of those "it depends" answers,
but I'm curious as
| >> to what folks are willing to do in the winter time.
| >>
| >> Assumptions:
| >>
| >> Single engine piston aircraft with NO de-icing
equipment.
| >>
| >> Situation:
| >>
| >> It's wintertime. You want to fly XC and there are
midlevel clouds in the
| >> forecast with the potential for icing to occur.
| >>
| >> It looks like the band is thin enough to climb through
and cruise in the
| >> clear above the weather.
| >>
| >> SO:
| >>
| >> 1) If the cloud layer is forecast to potentially have
icing, can you
| >> legally and would you climb through the layer to get up
high for your
| >> trip? how thick a layer, type of forecast, time spent
in the layer, etc.
| >> What would you be willing to risk transition through
possible icing?
| >
| > I believe the recent interpretations is that this would
be illegal as the
| > cloud layer at below freezing temps would constitute an
area of "known"
| > icing and thus penetrating it would not be legal. As to
what I would do
| > personally ... well, I won't answer that here! :-)
| >
| >
| >> 2) Would that change any if those same conditions were
now reported icing
| >> from a recent PIREP?
| >
| > It would change my personal view of the situation, but I
don't think it
| > changes the legality.
| >
| >
| >> 3) If it's reported, can you transit the cloud layer
legally?
| >
| > I don't believe you can do so legally.
| >
| >
| >> 4) Let's say yoru trip starts off VFR but by the time
you get to your
| >> destination, a cloud layer has formed that has reported
icing in it. Can
| >> or or would you be willing to transit this layer to
land at this
| >> destionation or would you turn around or divert to land
someplace to stay
| >> out of the clouds?
| >
| > Again it depends, but if I had sufficient fuel, I'd
probably divert. If I
| > was low on fuel, I'd descend through the layer.
| >
| > Matt
|
|

[Gary Drescher]

"George Patterson" > wrote in message
news:GJhof.1362$Jr1.200@trnddc01...
> Gary Drescher wrote:
>
>> So according to the AIM, forecast icing is not tantamount to known icing.
>> Rather, only a PIREP of icing (or a pilot's own observation in flight)
>> constitutes known icing.
>
> Here's the punch line from one of Yodice's columns in AOPA Pilot. Emphasis
> added.
>
> "The NTSB precedents are clear. Relevant pireps *and forecasts* constitute
> 'known icing conditions' into which a flight is prohibited unless the
> aircraft is specifically certificated by the FAA for flight into known
> icing conditions."

Right, but the NTSB precedents cited are not recent (some are more than
thirty years old), whereas the FAA's current definition of "known icing
conditions"--which I quoted from the latest AIM--explicitly contradicts
those precedents.

--Gary

[Bob Gardner]

I have a printed copy of Administrator vs Bowen...it is not online to the
best of my knowledge, so I can't provide a link. The file is 15 pages, so
I'm not about to keyboard the whole thing. At the risk of again being
accused of taking something out of context, here is the relevant section:

"In considering the phrase 'known icing conditions' as we did in order
EA-585 [that was the original finding...this portion is the appeal...Bob]
the Board construed (a) the word 'known' to mean that information regarding
icing conditions was known, or reasonably should have been known, by the
pilot, and (b) the term 'icing conditions' to include both reported and
forecast data. In adapting the above construction, the Board was primarily
influenced by the inherently insidious nature of icing and by the fact that
icing is the type of weather phenomenon that is rarely 'known' to exist in
the sense urged by respondent but rather is forecast by meteorologists when
certain underlying conditions conducive to icing, e.g., near freezing
temperatures and moisture, are present. Indeed, the only way in which icing
can be 'known' to exist is by means of a pilot report--e.e., whn the pilot
of an aircraft which has experienced icing reports that fact to the ATC
system. To construe the phrase in question to mean that the pilot of an
aircraft not equipped with anti-icing devices could fly into an area for
which icing had been forecast, but for which there was no report of an
encounter with icing, would be to render that phrase largely meaningless and
of little effect as a safety measure."

I have lectured on airframe icing at Oshkosh and have attended several
international and domestic conferences on airframe icing. I correspond
regularly with folks from the National Center for Atmospheric Research whose
speciality is airframe icing. I do not pretend to be an expert, but I do
think that I know more about the subject than the average pilot.

Bob Gardner

"Jim Carter" > wrote in message
et...
> Bob,
> I don't see how your response answered my question which was
> essentially: "is forecast icing the same a known icing"? In the article
> on aopa.org, the formidable piece of evidence in the case is the Pireps
> of rime ice. This used to mean that the icing conditions have become
> known because a pilot reported they actually occurred. Even if they were
> forecast, they weren't known until a) some pilot reported it, or b)
> evidence started appearing on the ground (like freezing rain or sleet).
>
> The quote by the Law Judge seems to very ambiguous when taken
> out of context -- if known means that icing is being reported then what
> difference does it make if they were "near-certain" or not?
>
> Even the large aircraft reg 91.527 only states that flight into
> forecast MODERATE or severe is prohibited, even though that isn't
> relative to this discussion.
>
> The aopa article you referenced also indicated there is no FAR
> covering non-commercial operation and flight into forecast icing
> conditions. So back to my original question, when did "forecast" come to
> be equivalent to "known"?
>
>
>
>> -----Original Message-----
>> From: Bob Gardner ]
>> Posted At: Wednesday, December 14, 2005 10:56 PM
>> Posted To: rec.aviation.ifr
>> Conversation: Flying through known or forecast icing
>> Subject: Re: Flying through known or forecast icing
>>
>> You sure have been away for a few years. As George said, in
> Adminstrator
>> vs
>> Bowen, in 1974, the Administrative Law Judge said, more or less,
> "known
>> does
>> not mean a near-certainty of icing conditions, only that icing
> conditions
>> are being reported or forecast."
>>
>> This was updated, and re-emphasized in 2005. Read this:
>>
>> http://www.aopa.org/members/files/pilot/2005/pc0508.html
>>
>> In a case not noted in either source, the NTSB referred to pilot
> reports
>> as
>> "anectodal evidence" and said that pilots had to rely on government
>> reports,
>> period. This 2005 case gives pilot reports a little more slack.
>>
>> Bob Gardner
>>
>>
>> "Jim Carter" > wrote in message
>> et...
>> > George,
>> > I've been away for a few years, but when did forecast icing
>> > become known icing without a pirep or physical indications on the
>> > ground? If they are the same thing now days, why are aircraft
> certified
>> > for "Flight in known icing (FIKI)" and not just flight in icing
>> > conditions?
>> >
>> >
>> >> -----Original Message-----
>> >> From: George Patterson ]
>> >> Posted At: Wednesday, December 14, 2005 11:16 AM
>> >> Posted To: rec.aviation.ifr
>> >> Conversation: Flying through known or forecast icing
>> >> Subject: Re: Flying through known or forecast icing
>> >>
>> >> Bob Gardner wrote:
>> >> > George, your heart is in the right place...but if you think that
>> > someone
>> >> at
>> >> > ATC has a pad of ticket forms just ready to write you up, you are
>> > sadly
>> >> > mistaken. I was told by an officer of the controller's union that
>> >> > controllers are not interested in the certification status of an
>> >> airplane or
>> >> > a pilot.
>> >>
>> >> No, I don't think "they" are just waiting to write me up, but the
> OP
>> > asked
>> >> if it
>> >> was *legal*, and it's not.
>> >>
>> >> > A former Assistant Administrator for Regulations and
> Certification
>> > told
>> >> me
>> >> > that it is the pilot who encounters icing conditions and makes no
>> >> attempt to
>> >> > escape who would get a violation...but only if that failure
> resulted
>> > in
>> >> an
>> >> > accident/incident or required special handling by ATC. No one at
> a
>> >> Center
>> >> > operating position knows if a pilot climbs or descends through a
>> > cloud.
>> >>
>> >> I've been told that too; however, I'm not going to go through
> clouds
>> >> without an
>> >> IFR clearance, and I wouldn't take either of the aircraft I've
> owned
>> >> through an
>> >> area in which icing has been reported. Now, if icing had only been
>> >> *forecast* in
>> >> that area but not reported, and the bottom of the cloud deck was
> well
>> >> above
>> >> minimums, I would chance it.
>> >>
>> >> George Patterson
>> >> Coffee is only a way of stealing time that should by rights
>> > belong
>> >> to
>> >> your slightly older self.
>> >
>
>

[Bob Gardner]

Gary, the most recent case was in 2005. That's what George was linking to.

Bob Gardner

"Gary Drescher" > wrote in message
...
> "George Patterson" > wrote in message
> news:GJhof.1362$Jr1.200@trnddc01...
>> Gary Drescher wrote:
>>
>>> So according to the AIM, forecast icing is not tantamount to known
>>> icing. Rather, only a PIREP of icing (or a pilot's own observation in
>>> flight) constitutes known icing.
>>
>> Here's the punch line from one of Yodice's columns in AOPA Pilot.
>> Emphasis added.
>>
>> "The NTSB precedents are clear. Relevant pireps *and forecasts*
>> constitute 'known icing conditions' into which a flight is prohibited
>> unless the aircraft is specifically certificated by the FAA for flight
>> into known icing conditions."
>
> Right, but the NTSB precedents cited are not recent (some are more than
> thirty years old), whereas the FAA's current definition of "known icing
> conditions"--which I quoted from the latest AIM--explicitly contradicts
> those precedents.
>
> --Gary
>
>

[Gary Drescher]

"Bob Gardner" > wrote in message
...
> "Gary Drescher" > wrote in message
> ...
>> "George Patterson" > wrote in message
>> news:GJhof.1362$Jr1.200@trnddc01...
>>> "The NTSB precedents are clear. Relevant pireps *and forecasts*
>>> constitute 'known icing conditions' into which a flight is prohibited
>>> unless the aircraft is specifically certificated by the FAA for flight
>>> into known icing conditions."
>>
>> Right, but the NTSB precedents cited are not recent (some are more than
>> thirty years old), whereas the FAA's current definition of "known icing
>> conditions"--which I quoted from the latest AIM--explicitly contradicts
>> those precedents.
>
> Gary, the most recent case was in 2005. That's what George was linking to.

No, the AOPA article he linked to says explicitly that the issue of known
vs. forecast icing conditions was *not* addressed in the most recent case
that the article discusses. The article goes on to say, "The board addressed
this issue most recently more than a dozen years ago, and in 1974 and 1976
before that. All are old cases."

Also, the article begins by saying that "the FAA offers very little guidance
to pilots operating 'non-commerically'" regarding what is meant by "known
icing conditions". In fact, though, the current AIM defines the term clearly
(and clearly distinguishes it from "forecast icing conditions"); the article
makes no mention of the AIM's definition.

Therefore, either the AIM definition first appeared after the article was
written, or else the article's author was unaware of the FAA's
already-published definition. Either way, the article does not provide sound
legal guidance in light of the FAA's current definition.

(George's link again:
http://www.aopa.org/members/files/pilot/2005/pc0508.html.)

--Gary

[[email protected]]

Gary
If you wait just a little, the legal definition will change again and
the hapless pilot will still be shafted and left bankrupt trying to
defend against the FAA steamroller legal section.
While I am pleased to see some really good input from the practical
standpoints, I'd hate to see it change into a legal discussion and
forget the original intent was ice and how to cope with it.
I've written at least a half dozen published articles on ice in general
aviation and so far they have withstood the test of time. As anyone
knows though, longevity lends credence to nearly any stated position if
its restated enough!?
Best Regards and Merry Christmas/Happy New Year
Ol Shy & Bashful

[Gary Drescher]

> wrote in message
oups.com...
> If you wait just a little, the legal definition will change again and
> the hapless pilot will still be shafted

That seems unlikely for the foreseeable future. But if the definition does
change, someone here is likely to call attention to it. :)

> While I am pleased to see some really good input from the practical
> standpoints, I'd hate to see it change into a legal discussion and
> forget the original intent was ice and how to cope with it.

Yup, legality and safety are not synonymous. Still, I think it would be safe
to fly IFR through a thin cloud layer (with plenty of room above and below)
even if there's a forecast for occasional moderate icing in clouds. And
according to the AIM's current definition of "known icing conditions", that
would be legal (for Part 91), as long as there are no PIREPs that confirm
the forecast.

> Best Regards and Merry Christmas/Happy New Year

A cheerful solstice to you too! :)

--Gary

[BDS]

"Gary Drescher" > wrote

> Yup, legality and safety are not synonymous. Still, I think it would be
safe
> to fly IFR through a thin cloud layer (with plenty of room above and
below)
> even if there's a forecast for occasional moderate icing in clouds. And
> according to the AIM's current definition of "known icing conditions",
that
> would be legal (for Part 91), as long as there are no PIREPs that confirm
> the forecast.

Section 91.527: Operating in icing conditions.

(b) Except for an airplane that has ice protection provisions that meet the
requirements in section 34 of Special Federal Aviation Regulation No. 23, or
those for transport category airplane type certification, no pilot may fly—

(1) Under IFR into known or forecast moderate icing conditions; or

(2) Under VFR into known light or moderate icing conditions unless the
aircraft has functioning de-icing or anti-icing equipment protecting each
propeller, windshield, wing, stabilizing or control surface, and each
airspeed, altimeter, rate of climb, or flight attitude instrument system.

(c) Except for an airplane that has ice protection provisions that meet the
requirements in section 34 of Special Federal Aviation Regulation No. 23, or
those for transport category airplane type certification, no pilot may fly
an airplane into known or forecast severe icing conditions.

(d) If current weather reports and briefing information relied upon by the
pilot in command indicate that the forecast icing conditions that would
otherwise prohibit the flight will not be encountered during the flight
because of changed weather conditions since the forecast, the restrictions
in paragraphs (b) and (c) of this section based on forecast conditions do
not apply.

It appears that for purposes of an IFR flight the rules do not rely on any
definition of "known" versus "forecast" - they're both covered right in the
reg. Paragraph (d) appears to allow a pirep of no icing to supercede the
forcast.

[Doug]

The situation seems to be, for part 91 ops, that if it is forecast,
that is if there is an AIRMET for icing (AIRMET ZULU), then it's not
legal to fly in it without approved deice equipment. But.....no one
enforces it (for part 91), and it is known that part 91 aircraft do fly
in it (by ATC), and so long as you don't declare an emergency or crash,
I don't think there has ever been a citation for it.

Having said that, I don't think its a very good idea to launch with
airmet ZULU along your route, but there may be some exceptions (like
when you have VFR beneath you above the MEA), or you have a pilot
report from a pilot who was just in it and not only didn't he pick up
ice, but he doesn't think there IS icing in those clouds. Also,
decending through a thin layer of rime (like 1000' thick) and it is
known that you wont get ENOUGH ice to affect your aircraft.

Statistically, its not a big problem. There aren't that many crashes
due to icing (there are some), but that doesn't mean its safe, just
that pilots are handling the hazard (usually by not flying in it).

But the fact that part 91 aircraft do it, and don't crash, doesn't make
it legal. Just makes it that they are getting away with it.

I think they should make icing a "percent probability" and when the
probability is greater than some figure (say 30%) then it's a no go.
This would allow them to given the 30% icing figure indicating ice, but
keep it at 30% indicating there is VFR under it or that the layer is so
thin, it is not likely to cause problems.

What you really want to aviod is being trapped in it with no VFR under
you, no ablity to outclimb it, and no way to turn around (although its
hard to imagine NOT being able to turn around, fuel, I guess).

Anyway, talk to pilots who have picked up ice and you will get the idea
that it is not, in general , a good idea. In fact, avoid it. That is
what I do.

[Gary Drescher]

"BDS" > wrote in message
m...
> "Gary Drescher" > wrote
>
>> Yup, legality and safety are not synonymous. Still, I think it would be
> safe
>> to fly IFR through a thin cloud layer (with plenty of room above and
> below)
>> even if there's a forecast for occasional moderate icing in clouds. And
>> according to the AIM's current definition of "known icing conditions",
> that
>> would be legal (for Part 91), as long as there are no PIREPs that confirm
>> the forecast.
>
> Section 91.527: Operating in icing conditions.

Heh, I mistakenly quoted the same reg earlier in this thread. :) As was
quickly pointed out, that section of the regs applies only to large or
turbine powered planes, not to the planes that most of us fly.

--Gary

[Gary Drescher]

"Doug" > wrote in message
oups.com...
> The situation seems to be, for part 91 ops, that if it is forecast,
> that is if there is an AIRMET for icing (AIRMET ZULU), then it's not
> legal to fly in it without approved deice equipment.

But according to the FAA's definition of "known icing conditions" in the
current AIM (which I quoted and linked to a few messages ago in this
thread), a forecast of icing definitely does *not* count as "known icing
conditions". And the only ice-related prohibition I'm aware of in the POH of
typical small planes is phrased in terms of known icing conditions (not
forecast icing conditions).

--Gary

[Jose]

> Having said that, I don't think its a very good idea to launch with
> airmet ZULU along your route, but there may be some exceptions (like
> when you have VFR beneath you above the MEA), or you have a pilot
> report from a pilot who was just in it and not only didn't he pick up
> ice, but he doesn't think there IS icing in those clouds.

How do you know how good a judge of ice that anonymous pilot who's
flying a different kind of plane than you is?

> I think they should make icing a "percent probability" and when the
> probability is greater than some figure (say 30%) then it's a no go.

Well, is it 30% of picking up ice (but it would be everywhere) or there
is ice in 30% of the cloud? And which way is out?

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

[Matt Whiting]

wrote:
> In rec.aviation.ifr Matt Whiting > wrote:
> : This has certainly been my experience also. I recently flew from
> : Lebanon, NH to ELM on a day with the freezing level around 4,000 and an
> : MEA of 6,000 across the mountains of southern VT. I picked up some
> : light rime and requested higher and got between layers. The clouds
> : again arose to smite me, so I requested higher again and broke out on
> : top at 10,000. My requests were calm and matter of fact and the
> : controllers were extremely accomodating. There was never even a hint
> : that they questioned why I was flying an Arrow on such a day.
>
> Because you didn't have a problem, they don't have a problem. If you had
> *had* a problem, they would have found this problem and busted you. Isn't it great?

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. :-)


Matt

[Matt Whiting]

Gary Drescher wrote:

> "Bob Gardner" > wrote in message
> . ..
>
>>As George said, in Adminstrator vs Bowen, in 1974, the Administrative Law
>>Judge said, more or less, "known does not mean a near-certainty of icing
>>conditions, only that icing conditions are being reported or forecast."
>
>
> But that 1974 decision is at odds with the current AIM, which defines
> various icing conditions in section 7-1-23
> (http://www.faa.gov/atpubs/aim/Chap7/aim0701.html#7-1-23):
>
> "Forecast Icing Conditions--Environmental conditions expected by a National
> Weather Service or an FAA-approved weather provider to be conducive to the
> formation of in-flight icing on aircraft."
>
> "Known Icing Conditions--Atmospheric conditions in which the formation of
> ice is observed or detected in flight."
>
> So according to the AIM, forecast icing is not tantamount to known icing.
> Rather, only a PIREP of icing (or a pilot's own observation in flight)
> constitutes known icing.
>
> Although the AIM isn't regulatory, it does purport to furnish information
> that is relevant to a pilot's understanding of FAA regulations. So when the
> latest AIM defines a term that the FARs use but don't define, it would
> violate due process to expect pilots to know and use some other definition
> instead. (Does anyone know if the current AIM definitions were present back
> when the previous rulings on known vs. forecast icing conditions were
> issued?)

Gary, Gary, Gary. You are trying to apply logic to government
regulations and the agencies that write and interpret them. This is a
lost cause. :-)


Matt

[Doug]

The one I like is: is it "known........ icing conditions" or is it
"known icing.........conditions".
(It doesn't matter, but it's confusing enough to throw the guy off
track while he TRIES to understand the difference)

[Ben Jackson]

On 2005-12-15, Jim Carter > wrote:
> essentially: "is forecast icing the same a known icing"?

That's the wrong question, because the rule says "known icing conditions"
which starts many arguments when people parse it as "known icing" when
in fact it is "known ... conditions". The conditions are present more
than the actual icing (perpetually in the winter in the PNW).

--
Ben Jackson
>
http://www.ben.com/

[Jay Somerset]

On Wed, 14 Dec 2005 16:33:31 GMT, George Patterson >
wrote:

> John Doe wrote:
>
> > 1) If the cloud layer is forecast to potentially have icing, can you legally
> > and would you climb through the layer to get up high for your trip? how
> > thick a layer, type of forecast, time spent in the layer, etc. What would
> > you be willing to risk transition through possible icing?
>
> No. Legally, forecast ice is "known icing."

A bit of a distortion.
The phrase in the regulations is "known icing conditions". A forecast that
mentions icing satisfies this as the conditions (leading to potential) icing
are indeed known -- if you have read the forecast -- and you are required by
regulations to obtain all relevant information for the flight which includes
a weather forecast.

Many pilots try to parse the requirement as "known-icing conditions" whereas
the FAA has defined it to mean "known icing-conditions" -- a subtle but
inportant difference when it comes to defending oneself against a
certificate action. A forecast of icing constitutes "known
icing-conditions."
>
> > 4) Let's say yoru trip starts off VFR but by the time you get to your
> > destination, a cloud layer has formed that has reported icing in it. Can or
> > or would you be willing to transit this layer to land at this destionation
> > or would you turn around or divert to land someplace to stay out of the
> > clouds?
>
> If I want to stay VFR, I won't be transiting any clouds. Being unwilling to risk
> a violation if I file IFR and then fly through reported icing, I would divert.
>
> George Patterson
> Coffee is only a way of stealing time that should by rights belong to
> your slightly older self.

--
Jay.
(remove dashes for legal email address)

[George Patterson]

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.

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

[Gary Drescher]

"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.

--Gary

[Jose]

> 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. (unless
the feds want it to be).

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]

"Jay Somerset" > wrote in message
...
> A bit of a distortion.
> The phrase in the regulations is "known icing conditions". A forecast
> that
> mentions icing satisfies this as the conditions (leading to potential)
> icing
> are indeed known -- if you have read the forecast -- and you are required
> by
> regulations to obtain all relevant information for the flight which
> includes
> a weather forecast.
>
> Many pilots try to parse the requirement as "known-icing conditions"
> whereas
> the FAA has defined it to mean "known icing-conditions" -- a subtle but
> inportant difference when it comes to defending oneself against a
> certificate action. A forecast of icing constitutes "known
> icing-conditions."

What you say appears to have been true in the past, but not currently. As
noted earlier in this thread, the FAA now defines the terms as follows:

"Forecast Icing Conditions--Environmental conditions expected by a National
Weather Service or an FAA-approved weather provider to be conducive to the
formation of in-flight icing on aircraft."

"Known Icing Conditions--Atmospheric conditions in which the formation of
ice is observed or detected in flight."

(AIM 7-1-23, http://www.faa.gov/atpubs/aim/Chap7/aim0701.html#7-1-23)

--Gary

[Jim Macklin]

AIM is non-regulatory advisory and does not constitute law.
FAA says that in the preamble to the AIM



"Gary Drescher" > wrote in message
. ..
| "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.
|
| --Gary
|
|

[Gary Drescher]

"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

[Jose]

> 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.

[George Patterson]

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.

[Paul Folbrecht]

> 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.

[Gary Drescher]

"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

[Gary Drescher]

"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

[George Patterson]

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.

[Matt Whiting]

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

[Matt Whiting]

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

[Gary Drescher]

"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

[Gary Drescher]

"George Patterson" > wrote in message
news:90sof.32966$Wo2.12336@trnddc04...
> 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"

In that instance--but not categorically!

> 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."

But it would indeed be arbitrary, capricious, and illegal for the FAA to
present an official definition of a term in the central publication that the
FAA explicitly instructs pilots to be guided by, and then "interpret" the
term to mean something else entirely!

By the way, the above passages don't appear in the AOPA article by Yodice
that you cited earlier
(http://www.aopa.org/members/files/pilot/2005/pc0508.html), but I assume you
found them somewhere else. Even so, you're reading far more into Yodice's
assertions than they actually say (and moreover, even if he had asserted
what you think he did, we would still need some evidence in support of those
assertions; none has been offered). In particular, there is nothing in those
assertions to support your claim that the *only* basis for appeal is
inconsistency with prior case law; that specific basis isn't even mentioned
in those assertions!

An appeals court has broad authority to address any obvious violations of
due process in administrative proceedings. Yes, the court will give wide
latitude to the FAA to make any *reasonable* interpretation of its own
regulations. So in particular, *prior* to the AIM's current definition of
"known icing conditions", the court would indeed have deferred to the FAA's
selection among various reasonable interpretations of that term. But things
are different now that the term has been officially, explicitly defined.

For the FAA to just ignore its own published official definition of a key
regulatory term--published in the central document that the FAA has
instructed pilots to use to understand regulatory requirements and best
practices--and then punish a pilot for failing to use a different,
unpublished definition instead, would not be reasonable by any stretch of
the imagination. And that's exactly the sort of procedural impropriety that
appeals courts deal with, however deferential they might be to an agency's
reasonable interpretation of its own regulations.

--Gary

[[email protected]]

Jim
But, it IS used for the basis of interpretation of what the FAA intends
or means when it comes to operations
As an aside.......
I've had a nasty experience with the FAA and NTSB when one of my pilots
was killed on a night IFR into SLC hauling freight. I believe he iced
up and went in before he knew what had happened on his initial descent.
Was solo in a C210T and a very experienced guy with thousands of hours.
At the NTYSB hearing a federale said he had seen me falsifying records
in my office during the initial investigation after the crash. I was
out on a freight run during that day of hearings and missed his
phucking lying performance. I told him later that I hoped to see him
one evening on the streets and I'd thrash him. Doesn't have anything to
do with the AIM but I feel better having said this.

[RNR]

On Fri, 16 Dec 2005 02:43:06 GMT, George Patterson
> wrote:

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


As we all know, the AIM is not regulatory. How much clout it carries
depends upon whether the FAA is using it against a pilot or a pilot is
using it as a defence against the FAA. Not to discount all of the
interesting comments regarding the meaning of the regs, but I pity the
poor pilot who finds himself in the position of going up against the
precedent set by these "old" cases.
Rich Russell

[Gary Drescher]

"RNR" > wrote in message
...
> As we all know, the AIM is not regulatory.

Right, but that just means that its contents do not *constitute*
regulations. It does not mean that its contents do not bear on the
reasonable interpretation of the regulations (or of the terms used therein).
On the contrary, the FAA says explicitly (in the AIM's preface) that the
purpose of the AIM is to offer pilots guidance in understanding the
regulations and associated practices.

> How much clout it carries
> depends upon whether the FAA is using it against a pilot or a pilot is
> using it as a defence against the FAA.

Several pilots have put forth the claim that the AIM only works in one
direction (namely, when it's on the FAA's side in legal proceedings), but no
one here has offered any documentation in support of that claim. No one has
shown even a single case in which the FAA successfully (or even
unsuccessfully!) took action against a pilot for abiding by a provision of
the AIM.

> Not to discount all of the
> interesting comments regarding the meaning of the regs, but I pity the
> poor pilot who finds himself in the position of going up against the
> precedent set by these "old" cases.

The cases aren't just "old". What matters is not their age, but rather that
they address a situation that no longer obtains (namely, a situation in
which the FAA had no official explicit published definition of the term
"known icing conditions").

It strikes me as misplaced for pilots to worry so much about a specific kind
of flagrant injustice that (as far as anyone here knows) has never actually
taken place. It's not that I just trust the authorities to behave
reasonably. On the contrary, one reason the misplaced worry concerns me is
that it could serve as an invitation for those in authority to move in the
direction of inflicting such an injustice, for they can see that many pilots
have already resigned themselves to accepting (apart from some newsgroup
grumbling) an intolerable violation of fairness that isn't even occurring
yet. That anticipatory resignation, it seems to me, undermines one of the
important forces that helps keep the authorities in check.

--Gary

PS: I keep restoring r.a.p. to this thread because icing conditions can
occur outside of clouds, so the discussion is pertinent to VFR as well as
IFR flight.

[Matt Barrow]

"Gary Drescher" > wrote in message
. ..
> "RNR" > wrote in message
> ...
>> As we all know, the AIM is not regulatory.
>
> Right, but that just means that its contents do not *constitute*
> regulations. It does not mean that its contents do not bear on the
> reasonable interpretation of the regulations (or of the terms used
> therein).

I think of the AIM as a layman's "interpretation" of the FAR's.

Comments?


--
Matt
---------------------
Matthew W. Barrow
Site-Fill Homes, LLC.
Montrose, CO

[Gary Drescher]

"Matt Barrow" > wrote in message
...
>
> "Gary Drescher" > wrote in message
> . ..
>> "RNR" > wrote in message
>> ...
>>> As we all know, the AIM is not regulatory.
>>
>> Right, but that just means that its contents do not *constitute*
>> regulations. It does not mean that its contents do not bear on the
>> reasonable interpretation of the regulations (or of the terms used
>> therein).
>
> I think of the AIM as a layman's "interpretation" of the FAR's.
>
> Comments?

Sure, that's one way to think of it. But it's something else too: it's also
official guidance from the FAA as to what the FARs mean. And that has to
figure into a court's appraisal of whether some proposed FAA interpretation
of the FARs meets the standard of reasonableness.

--Gary

[George Patterson]

Matt Whiting wrote:

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

Used to be that way. Congress added the possibility of an appeal to the U.S.
Appeals court some years ago.

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

[Gary Drescher]

"George Patterson" > wrote in message
news:lMBof.168$CL.5@trnddc04...
> Matt Whiting wrote:
>
>> But isn't it the NTSB that usually makes the final determination on the
>> appeal?
>
> Used to be that way. Congress added the possibility of an appeal to the
> U.S. Appeals court some years ago.

George, I have a different understanding of the three branches' separation
of powers. Neither the administration nor the Congress has the
Constitutional authority to make a federal agency's decisions categorically
immune to judicial review. Congress may have formalized the appeal process
at some point, but I don't think it could have previously been the case that
NTSB decisions were exempt from all judicial appeal. The NTSB may formerly
have taken that position, but that didn't make it true. Was there ever a
case that an appeals court refused to hear on the grounds that NTSB
decisions were inherently unappealable?

Thanks,
Gary

[Gary Drescher]

"T o d d P a t t i s t" > wrote in message
...
> "Gary Drescher" > wrote:
>
>>> I think of the AIM as a layman's "interpretation" of the FAR's.
>>
>>Sure, that's one way to think of it. But it's something else too: it's
>>also
>>official guidance from the FAA as to what the FARs mean. And that has to
>>figure into a court's appraisal of whether some proposed FAA
>>interpretation
>>of the FARs meets the standard of reasonableness.
>
> I don't think of the AIM as either a layman's
> "interpretation" of the FAR's or "official guidance from the
> FAA as to what the FARs mean." Interpretations and official
> guidance as to what the FAA thinks regulations mean come
> from the FAA's Chief Counsel's Office.

Yes, that's another source. But (for example) when the AIM defines terms
that are used in the FARs but not defined in the FARs, then it's offering
pilots guidance as to what the FARs mean.

> Moreover, I don't
> think of any certificated pilot as a 'layman," there's way
> too much training, study and testing for that label to apply
> to pilots.

I took Matt to mean that we're laypersons with regard to matters of law.

--Gary

[Gary Drescher]

"T o d d P a t t i s t" > wrote in message
...
> "Gary Drescher" > wrote:
>
>>> Interpretations and official
>>> guidance as to what the FAA thinks regulations mean come
>>> from the FAA's Chief Counsel's Office.
>>
>>Yes, that's another source.
>
> Saying it's "another source" implies (at least to me) that
> they are roughly equivalent sources of interpretation.
> They aren't. If there's any conflict, the Chief Counsel's
> interpretation overrides anything in the AIM.

Well, whether that's true or not is one of the main points of disagreement
that's come up in this thread.

My argument is that 1) by common sense, it would not meet the legal standard
of reasonableness for the FAA to publish an explicit definition in the AIM
(for example, the AIM's new definition of "known icing conditions", which
unambiguously excludes *forecast* conditions) and then have the Chief
Counsel insist that the legally valid interpretation of the term is
something else entirely; and 2) empirically, there seem to be no known cases
in which the FAA has ever even *tried* to bust a pilot for interpreting a
regulatory term in a way that irrefutably accords with the AIM's explicit
definition of that term.

For those reasons, I don't believe that the Chief Counsel has carte blanche
to "override" the AIM. But if you have evidence or arguments to the
contrary, I will gladly consider them.

--Gary

[Matt Whiting]

Gary Drescher wrote:
> "George Patterson" > wrote in message
> news:lMBof.168$CL.5@trnddc04...
>
>>Matt Whiting wrote:
>>
>>
>>>But isn't it the NTSB that usually makes the final determination on the
>>>appeal?
>>
>>Used to be that way. Congress added the possibility of an appeal to the
>>U.S. Appeals court some years ago.
>
>
> George, I have a different understanding of the three branches' separation
> of powers. Neither the administration nor the Congress has the
> Constitutional authority to make a federal agency's decisions categorically
> immune to judicial review. Congress may have formalized the appeal process
> at some point, but I don't think it could have previously been the case that
> NTSB decisions were exempt from all judicial appeal. The NTSB may formerly
> have taken that position, but that didn't make it true. Was there ever a
> case that an appeals court refused to hear on the grounds that NTSB
> decisions were inherently unappealable?

It has been a long time since my high school American Government class,
but I thought that this only applied to constitional rights, not
so-called privileges. If your state pulls your driver's license, can
you really appeal that through the Federal court system?


Matt

[Gary Drescher]

"Matt Whiting" > wrote in message
...
> It has been a long time since my high school American Government class,
> but I thought that this only applied to constitional rights, not so-called
> privileges. If your state pulls your driver's license, can you really
> appeal that through the Federal court system?

I suspect the (initial) appeal would be in state court rather than federal,
but there is certainly a judicial remedy if the denial of your license is
unreasonable. (The FAA, of course, is a federal agency, so no state courts
are involved.)

The so-called right vs. privilege distinction is beside the point, because
there is unquestionably a constitutional right to not have a privilege
unreasonably withheld. Your state could not, for example, deny you a
driver's license just because they don't like your race or religion. If they
tried, you could certainly get the courts to intervene.

--Gary

[George Patterson]

Gary Drescher wrote:

> George, I have a different understanding of the three branches' separation
> of powers. Neither the administration nor the Congress has the
> Constitutional authority to make a federal agency's decisions categorically
> immune to judicial review. Congress may have formalized the appeal process
> at some point, but I don't think it could have previously been the case that
> NTSB decisions were exempt from all judicial appeal. The NTSB may formerly
> have taken that position, but that didn't make it true. Was there ever a
> case that an appeals court refused to hear on the grounds that NTSB
> decisions were inherently unappealable?

Absolutely. This lack of appeal to the judicial branch was a big bone of
contention for AOPA in the early 90s. The latest article I found recently in
AOPAs files describing this dates from 1994, so it was changed sometime after
that. A later Yodice (IIRC) article states that this was changed by decree of
Congress.

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

[Gary Drescher]

"George Patterson" > wrote in message
news:bPKof.1392$eI5.1003@trnddc05...
> Gary Drescher wrote:
>> Was there ever a case that an appeals court refused to hear on the
>> grounds that NTSB decisions were inherently unappealable?
>
> Absolutely.

Perhaps I'm mistaken then. Do you have a pointer to the case?

Thanks,
Gary

[George Patterson]

Gary Drescher wrote:

> Perhaps I'm mistaken then. Do you have a pointer to the case?

Cases. Not tonight. If you're in a hurry, search the AOPA site for "NTSB
appeal". Look for older articles.

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

[Gary Drescher]

"George Patterson" > wrote in message
news:gjNof.1095$7f3.16@trnddc01...
> Gary Drescher wrote:
>
>> Perhaps I'm mistaken then. Do you have a pointer to the case?
>
> Cases. Not tonight. If you're in a hurry, search the AOPA site for "NTSB
> appeal". Look for older articles.

Sorry, I haven't been able to find any example of the sort I asked about
(namely, an appeals court refusing to hear a case on the grounds that NTSB
decisions were inherently unappealable). I'll wait until you have a chance
to provide a pointer.

Thanks,
Gary

[Julian Scarfe]

"Bob Gardner" > wrote in message
. ..

> This was updated, and re-emphasized in 2005. Read this:
>
> http://www.aopa.org/members/files/pilot/2005/pc0508.html
>
> In a case not noted in either source, the NTSB referred to pilot reports
> as "anectodal evidence" and said that pilots had to rely on government
> reports, period. This 2005 case gives pilot reports a little more slack.

For those of us who can't get to the linked article, if that refers to NTSB
opinions from 2005, would you cite the Order no.s please?

Thanks

Julian