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

[Gary Drescher]

"Peter" > wrote in message
...
>
> I apologise in advance as this is a topic done to death in the past,
> but I have heard various bits of info on this recently, some quoting
> FAA or NTSB rulings etc, and others disputing that they are relevant
> because there have been more recent events including a clarification
> in the AIM.
>
> I am in Europe but this is potentially relevant to me because I fly an
> N-reg aircraft (not certified for any icing conditions).
>
> What is the latest situation on this from the USA?

The current AIM (7-1-23) explicitly states that "forecast icing conditions"
are *not* "known icing conditions":

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

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

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

--Gary

[Jose]

> The current AIM (7-1-23) explicitly states that "forecast icing conditions"
> are *not* "known icing conditions":

Has there been a case yet where the FAA has agreed with this definition
in an enforcement action?

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

[Jim Macklin]

The AIM is NOT regulatory nor official legal doctrine. The
AIM seems to be logical and reasonable, but I think there
needs to be an official FAA legal opinion stated.



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

--
The people think the Constitution protects their rights;
But government sees it as an obstacle to be overcome.
some support
http://www.usdoj.gov/olc/secondamendment2.htm
See http://www.fija.org/ more about your rights and duties.


"Jose" > wrote in message
. ..
|> The current AIM (7-1-23) explicitly states that "forecast
icing conditions"
| > are *not* "known icing conditions":
|
| Has there been a case yet where the FAA has agreed with
this definition
| in an enforcement action?
|
| Jose
| --
| Nothing takes longer than a shortcut.
| for Email, make the obvious change in the address.

[Gary Drescher]

"Jim Macklin" > wrote in message
news:jBIVf.877$t22.865@dukeread08...
>
> "Jose" > wrote in message
> . ..
> >"Gary Drescher" > wrote in message
> ...
>>
>>> The current AIM (7-1-23) explicitly states that "forecast
>>> icing conditions" are *not* "known icing conditions":
>>
>>Has there been a case yet where the FAA has agreed with
>>this definition in an enforcement action?
>
> The AIM is NOT regulatory nor official legal doctrine. The
> AIM seems to be logical and reasonable, but I think there
> needs to be an official FAA legal opinion stated.

The AIM is not regulatory, but the FAA does tell pilots to use the AIM's
information to understand their regulatory responsibilities. I'm not aware
of any relevant case law since the adoption of the definitions I cited. But
it would constitute blatant entrapment for the FAA to instruct pilots to
interpret official terminology in a particular way, and then bust them for
complying with that instruction. (Appeals courts may defer to the FAA on the
interpretation of the rules, but *not* on questions of due process; and
entrapment is a serious violation of due process.)

This question has come up here before, and no one has been able to cite any
case, ever, in which the FAA has even *tried* (let alone successfully) to
bust someone for complying with the AIM. So I don't think the possibility is
worth worrying about, but of course everyone needs to evaluate that for
themselves.

--Gary

[Doug]

Just use the airmets. If there is an airmet for icing, you can't go. If
there is no airmet, you might be able to go if conditions allow it.

[Gary Drescher]

"Doug" > wrote in message
oups.com...
> Just use the airmets. If there is an airmet for icing, you can't go. If
> there is no airmet, you might be able to go if conditions allow it.

An airmet for icing consititutes forecast icing, not known icing, according
to the AIM definition I cited.

Of course, if there isn't a sound immediate escape option in the event that
the forecast is right, the flight would be unsafe (in a plane that's not
certified for known icing) and (incidentally) therefore illegal.

--Gary

[Ron Rosenfeld]

On Mon, 27 Mar 2006 06:23:56 -0500, "Gary Drescher"
> wrote:

>Of course, if there isn't a sound immediate escape option in the event that
>the forecast is right, the flight would be unsafe (in a plane that's not
>certified for known icing) and (incidentally) therefore illegal.

I agree the flight would be unsafe, and possibly illegal under the careless
and reckless clause. But I think the issue of whether it would be
otherwise illegal hinges not on whether the a/c is certified for known
icing, but rather whether there is a prohibition in the POH/AFM against
flight into known icing conditions.

My "mature" Mooney, and many other older small a/c, do not have such a
prohibition in their documents.


Ron (EPM) (N5843Q, Mooney M20E) (CP, ASEL, ASES, IA)

[Gary Drescher]

"Ron Rosenfeld" > wrote in message
...
> On Mon, 27 Mar 2006 06:23:56 -0500, "Gary Drescher"
> > wrote:
>
>>Of course, if there isn't a sound immediate escape option in the event
>>that
>>the forecast is right, the flight would be unsafe (in a plane that's not
>>certified for known icing) and (incidentally) therefore illegal.
>
> I agree the flight would be unsafe, and possibly illegal under the
> careless
> and reckless clause.

Yup.

> But I think the issue of whether it would be
> otherwise illegal hinges not on whether the a/c is certified for known
> icing, but rather whether there is a prohibition in the POH/AFM against
> flight into known icing conditions.

Yup, an AFM prohibition (rather than icing certification) would be what's
relevant to legality apart from the safety issue. But the scenario under
discussion involves forecast icing rather than known icing, so (according to
the AIM definitions I cited earlier) the only legality problem would be from
unsafe flight.

--Gary

[Gary Drescher]

"Doug" > wrote in message
ups.com...
> The one I like is, is it "known icing-conditions" or "known-icing
> conditions"?

The current AIM definition removes any ambiguity.

--Gary

[Bob Gardner]

The latest on known icing is a 2004 case...

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

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

Bob Gardner

"Gary Drescher" > wrote in message
...
> "Peter" > wrote in message
> ...
>>
>> I apologise in advance as this is a topic done to death in the past,
>> but I have heard various bits of info on this recently, some quoting
>> FAA or NTSB rulings etc, and others disputing that they are relevant
>> because there have been more recent events including a clarification
>> in the AIM.
>>
>> I am in Europe but this is potentially relevant to me because I fly an
>> N-reg aircraft (not certified for any icing conditions).
>>
>> What is the latest situation on this from the USA?
>
> The current AIM (7-1-23) explicitly states that "forecast icing
> conditions" are *not* "known icing conditions":
>
> "Forecast Icing Conditions: Environmental conditions expected by a
> National Weather Service or an FAA-approved weather provider to be
> conducive to the formation of inflight icing on aircraft. "
>
> "Known Icing Conditions: Atmospheric conditions in which the formation of
> ice is observed or detected in flight."
>
> http://www.faa.gov/atpubs/aim/Chap7/aim0701.html#7-1-23
>
> --Gary
>
>

[Andrew Sarangan]

Has there ever been a case where the FAA violated the pilot just for
flying in an area of forecasted icing?

If the FAA wants to do this, it is real easy, since all they have to do
is to automatically send tickets to all non-deiced airplanes flying in
clouds in the winter. You don't even need an inspector; a computer can
do this.

Most enforecement cases I know had an accident, or the pilot declared
an emergency. In that case, whether there was forecasted icing or
reported icing becomes a moot point. They can hang you on a variety of
charges, even if you manage to escape the icing clause.




Bob Gardner wrote:
> The latest on known icing is a 2004 case...
>
> http://www.aopa.org/members/files/pilot/2005/pc0508.html
>
> In all my years of lecturing on icing and attending FAA icing conferences I
> have never heard anyone, FAA or NWS, put forward the argument that you
> espouse. It is bogus. Even before the 2004 case it was well established by
> the NTSB (Administrator vs Bowen) that forecast conditions of moisture plus
> below-freezing temps constitut known icing. You are late to the party, Gary.
>
> Bob Gardner
>
> "Gary Drescher" > wrote in message
> ...
> > "Peter" > wrote in message
> > ...
> >>
> >> I apologise in advance as this is a topic done to death in the past,
> >> but I have heard various bits of info on this recently, some quoting
> >> FAA or NTSB rulings etc, and others disputing that they are relevant
> >> because there have been more recent events including a clarification
> >> in the AIM.
> >>
> >> I am in Europe but this is potentially relevant to me because I fly an
> >> N-reg aircraft (not certified for any icing conditions).
> >>
> >> What is the latest situation on this from the USA?
> >
> > The current AIM (7-1-23) explicitly states that "forecast icing
> > conditions" are *not* "known icing conditions":
> >
> > "Forecast Icing Conditions: Environmental conditions expected by a
> > National Weather Service or an FAA-approved weather provider to be
> > conducive to the formation of inflight icing on aircraft. "
> >
> > "Known Icing Conditions: Atmospheric conditions in which the formation of
> > ice is observed or detected in flight."
> >
> > http://www.faa.gov/atpubs/aim/Chap7/aim0701.html#7-1-23
> >
> > --Gary
> >
> >

[Gary Drescher]

"Bob Gardner" > wrote in message
...
> The latest on known icing is a 2004 case...
>
> http://www.aopa.org/members/files/pilot/2005/pc0508.html
>
> In all my years of lecturing on icing and attending FAA icing conferences
> I have never heard anyone, FAA or NWS, put forward the argument that you
> espouse. It is bogus.

I said something original, therefore it must be bogus?

Bob, the AIM definitions that my due-process argument depends on are very
recent (2005), so *of course* you haven't heard my argument in all your
prior years of lecturing. It wasn't applicable then.

Every precedent cited in the AOPA article you point to above also precedes
the new AIM definitions, so the due-process argument I raised is simply not
addressed in those cases. (And the article itself was obviously based on
older versions of the AIM, because the article says that "the FAA offers
very little guidance" as to the meaning of "known icing conditions"--which
was true of previous versions of the AIM, but no longer.)

> Even before the 2004 case

The 2004 case cited in the AOPA article is doubly irrelevant to my argument,
because 1) it precedes the new AIM definitions; and 2) in the 2004 case, the
NTSB found that the flight instructor continued to fly (despite an
opportunity to land) even after observing ice on the aircraft; that
observation establishes "known icing" under *both* the new and old
definitions.

> it was well established by the NTSB (Administrator vs Bowen) that forecast
> conditions of moisture plus below-freezing temps constitute known icing.

Again, you are citing cases that long precede the new AIM definitions, so of
course those cases do not address my due-process argument, which depends on
the FAA's publication of those definitions.

> You are late to the party, Gary.

No, I'm just keeping abreast of recent developments, rather than assuming
incorrectly that nothing has changed.

Regards,
Gary

> Bob Gardner
>
> "Gary Drescher" > wrote in message
> ...
>> "Peter" > wrote in message
>> ...
>>>
>>> I apologise in advance as this is a topic done to death in the past,
>>> but I have heard various bits of info on this recently, some quoting
>>> FAA or NTSB rulings etc, and others disputing that they are relevant
>>> because there have been more recent events including a clarification
>>> in the AIM.
>>>
>>> I am in Europe but this is potentially relevant to me because I fly an
>>> N-reg aircraft (not certified for any icing conditions).
>>>
>>> What is the latest situation on this from the USA?
>>
>> The current AIM (7-1-23) explicitly states that "forecast icing
>> conditions" are *not* "known icing conditions":
>>
>> "Forecast Icing Conditions: Environmental conditions expected by a
>> National Weather Service or an FAA-approved weather provider to be
>> conducive to the formation of inflight icing on aircraft. "
>>
>> "Known Icing Conditions: Atmospheric conditions in which the formation of
>> ice is observed or detected in flight."
>>
>> http://www.faa.gov/atpubs/aim/Chap7/aim0701.html#7-1-23
>>
>> --Gary
>>
>>
>
>

[Peter R.]

Doug > wrote:

> Just use the airmets. If there is an airmet for icing, you can't go. If
> there is no airmet, you might be able to go if conditions allow it.

In lieu of the new type of icing forecasts that are supposedly going to
grace your local FSS and DUATs this year, one could assume that the FAA is
aware the current icing AIRMETs are too broad-brushed in their coverage for
your advice to be practical to any pilot downwind of the Great Lakes who
desires some utility out of his aircraft October through May.



--
Peter

[Bob Gardner]

I still think you are reading something into the AIM that isn't there, even
if the AIM could be used as a defense in a certificate action. Judges seem
to like precedents, however old, and IMHO would lean toward their fellow
judges rather than toward the anonymous writers of the AIM.

Bob

"Gary Drescher" > wrote in message
...
> "Bob Gardner" > wrote in message
> ...
>> The latest on known icing is a 2004 case...
>>
>> http://www.aopa.org/members/files/pilot/2005/pc0508.html
>>
>> In all my years of lecturing on icing and attending FAA icing conferences
>> I have never heard anyone, FAA or NWS, put forward the argument that you
>> espouse. It is bogus.
>
> I said something original, therefore it must be bogus?
>
> Bob, the AIM definitions that my due-process argument depends on are very
> recent (2005), so *of course* you haven't heard my argument in all your
> prior years of lecturing. It wasn't applicable then.
>
> Every precedent cited in the AOPA article you point to above also precedes
> the new AIM definitions, so the due-process argument I raised is simply
> not addressed in those cases. (And the article itself was obviously based
> on older versions of the AIM, because the article says that "the FAA
> offers very little guidance" as to the meaning of "known icing
> conditions"--which was true of previous versions of the AIM, but no
> longer.)
>
>> Even before the 2004 case
>
> The 2004 case cited in the AOPA article is doubly irrelevant to my
> argument, because 1) it precedes the new AIM definitions; and 2) in the
> 2004 case, the NTSB found that the flight instructor continued to fly
> (despite an opportunity to land) even after observing ice on the aircraft;
> that observation establishes "known icing" under *both* the new and old
> definitions.
>
>> it was well established by the NTSB (Administrator vs Bowen) that
>> forecast conditions of moisture plus below-freezing temps constitute
>> known icing.
>
> Again, you are citing cases that long precede the new AIM definitions, so
> of course those cases do not address my due-process argument, which
> depends on the FAA's publication of those definitions.
>
>> You are late to the party, Gary.
>
> No, I'm just keeping abreast of recent developments, rather than assuming
> incorrectly that nothing has changed.
>
> Regards,
> Gary
>
>> Bob Gardner
>>
>> "Gary Drescher" > wrote in message
>> ...
>>> "Peter" > wrote in message
>>> ...
>>>>
>>>> I apologise in advance as this is a topic done to death in the past,
>>>> but I have heard various bits of info on this recently, some quoting
>>>> FAA or NTSB rulings etc, and others disputing that they are relevant
>>>> because there have been more recent events including a clarification
>>>> in the AIM.
>>>>
>>>> I am in Europe but this is potentially relevant to me because I fly an
>>>> N-reg aircraft (not certified for any icing conditions).
>>>>
>>>> What is the latest situation on this from the USA?
>>>
>>> The current AIM (7-1-23) explicitly states that "forecast icing
>>> conditions" are *not* "known icing conditions":
>>>
>>> "Forecast Icing Conditions: Environmental conditions expected by a
>>> National Weather Service or an FAA-approved weather provider to be
>>> conducive to the formation of inflight icing on aircraft. "
>>>
>>> "Known Icing Conditions: Atmospheric conditions in which the formation
>>> of ice is observed or detected in flight."
>>>
>>> http://www.faa.gov/atpubs/aim/Chap7/aim0701.html#7-1-23
>>>
>>> --Gary
>>>
>>>
>>
>>
>
>

[Bob Gardner]

All of the cases I have in my files are certificate actions based on
accidents...some fatal, some not.

When Tony Broderick was Assistant Administrator for Certification and
Regulation, I asked him specifically about any action based on a pilot
report of an icing encounter in a non-known-ice airplane. He said that if
the pilot took action to escape the icing conditions it would be a
non-event, but if the pilot remained in the icing conditions and an
accident/incident resulted, he would be subject to certificate action.

Then I asked the controller's union VP for safety about how controllers
react to reports of icing encounters from pilots of non-KI airplanes. He
said that controllers have no interest in the certification status of
airplane or pilot, and have no paperwork mechanism available anyway.

I'm going to miss the controller's union meeting in Dallas the end of this
month, so I won't be able to bang any ears.

Bob Gardner

"Andrew Sarangan" > wrote in message
ups.com...
> Has there ever been a case where the FAA violated the pilot just for
> flying in an area of forecasted icing?
>
> If the FAA wants to do this, it is real easy, since all they have to do
> is to automatically send tickets to all non-deiced airplanes flying in
> clouds in the winter. You don't even need an inspector; a computer can
> do this.
>
> Most enforecement cases I know had an accident, or the pilot declared
> an emergency. In that case, whether there was forecasted icing or
> reported icing becomes a moot point. They can hang you on a variety of
> charges, even if you manage to escape the icing clause.
>
>
>
>
> Bob Gardner wrote:
>> The latest on known icing is a 2004 case...
>>
>> http://www.aopa.org/members/files/pilot/2005/pc0508.html
>>
>> In all my years of lecturing on icing and attending FAA icing conferences
>> I
>> have never heard anyone, FAA or NWS, put forward the argument that you
>> espouse. It is bogus. Even before the 2004 case it was well established
>> by
>> the NTSB (Administrator vs Bowen) that forecast conditions of moisture
>> plus
>> below-freezing temps constitut known icing. You are late to the party,
>> Gary.
>>
>> Bob Gardner
>>
>> "Gary Drescher" > wrote in message
>> ...
>> > "Peter" > wrote in message
>> > ...
>> >>
>> >> I apologise in advance as this is a topic done to death in the past,
>> >> but I have heard various bits of info on this recently, some quoting
>> >> FAA or NTSB rulings etc, and others disputing that they are relevant
>> >> because there have been more recent events including a clarification
>> >> in the AIM.
>> >>
>> >> I am in Europe but this is potentially relevant to me because I fly an
>> >> N-reg aircraft (not certified for any icing conditions).
>> >>
>> >> What is the latest situation on this from the USA?
>> >
>> > The current AIM (7-1-23) explicitly states that "forecast icing
>> > conditions" are *not* "known icing conditions":
>> >
>> > "Forecast Icing Conditions: Environmental conditions expected by a
>> > National Weather Service or an FAA-approved weather provider to be
>> > conducive to the formation of inflight icing on aircraft. "
>> >
>> > "Known Icing Conditions: Atmospheric conditions in which the formation
>> > of
>> > ice is observed or detected in flight."
>> >
>> > http://www.faa.gov/atpubs/aim/Chap7/aim0701.html#7-1-23
>> >
>> > --Gary
>> >
>> >
>

[Bob Gardner]

Check this out...especially the last paragraph. It is the Introduction to
the AIM:

"The following is in essence, the statement issued by the FAA Administrator
and published in the December 10, 1964, issue of the Federal Register,
concerning the FAA policy as pertaining to the type of information that will
be published as NOTAMs and in the Aeronautical Information Manual.
a. It is a pilot's inherent responsibility to be alert at all times for and
in anticipation of all circumstances, situations, and conditions affecting
the safe operation of the aircraft. For example, a pilot should expect to
find air traffic at any time or place. At or near both civil and military
airports and in the vicinity of known training areas, a pilot should expect
concentrated air traffic and realize concentrations of air traffic are not
limited to these places.
b. It is the general practice of the agency to advertise by NOTAM or other
flight information publications such information it may deem appropriate;
information which the agency may from time to time make available to pilots
is solely for the purpose of assisting them in executing their regulatory
responsibilities. Such information serves the aviation community as a whole
and not pilots individually.
c. The fact that the agency under one particular situation or another may or
may not furnish information does not serve as a precedent of the agency's
responsibility to the aviation community; neither does it give assurance
that other information of the same or similar nature will be advertised,
nor, does it guarantee that any and all information known to the agency will
be advertised.
d. This publication, while not regulatory, provides information which
reflects examples of operating techniques and procedures which may be
requirements in other federal publications or regulations. It is made
available solely to assist pilots in executing their responsibilities
required by other publications.
Consistent with the foregoing, it shall be the policy of the Federal
Aviation Administration to furnish information only when, in the opinion of
the agency, a unique situation should be advertised and not to furnish
routine information such as concentrations of air traffic, either civil or
military.

The Aeronautical Information Manual will not contain informative items
concerning everyday circumstances that pilots should, either by good
practices or regulation, expect to encounter or avoid."

I subscribe to the Summit Aviation CD-ROM that contains just about every
piece of paper issued by the FAA, regularly updated, and as I look at the
list of changes to the AIM I do not find 7-1-22 (used to be 7-1-23) listed
anywhere. Admittedly, there is a lag between when the FAA does something and
when Summit publishes it.

Bob Gardner


Bob Gardner


"Bob Gardner" > wrote in message
. ..
>I still think you are reading something into the AIM that isn't there, even
>if the AIM could be used as a defense in a certificate action. Judges seem
>to like precedents, however old, and IMHO would lean toward their fellow
>judges rather than toward the anonymous writers of the AIM.
>
> Bob
>
> "Gary Drescher" > wrote in message
> ...
>> "Bob Gardner" > wrote in message
>> ...
>>> The latest on known icing is a 2004 case...
>>>
>>> http://www.aopa.org/members/files/pilot/2005/pc0508.html
>>>
>>> In all my years of lecturing on icing and attending FAA icing
>>> conferences I have never heard anyone, FAA or NWS, put forward the
>>> argument that you espouse. It is bogus.
>>
>> I said something original, therefore it must be bogus?
>>
>> Bob, the AIM definitions that my due-process argument depends on are very
>> recent (2005), so *of course* you haven't heard my argument in all your
>> prior years of lecturing. It wasn't applicable then.
>>
>> Every precedent cited in the AOPA article you point to above also
>> precedes the new AIM definitions, so the due-process argument I raised is
>> simply not addressed in those cases. (And the article itself was
>> obviously based on older versions of the AIM, because the article says
>> that "the FAA offers very little guidance" as to the meaning of "known
>> icing conditions"--which was true of previous versions of the AIM, but no
>> longer.)
>>
>>> Even before the 2004 case
>>
>> The 2004 case cited in the AOPA article is doubly irrelevant to my
>> argument, because 1) it precedes the new AIM definitions; and 2) in the
>> 2004 case, the NTSB found that the flight instructor continued to fly
>> (despite an opportunity to land) even after observing ice on the
>> aircraft; that observation establishes "known icing" under *both* the new
>> and old definitions.
>>
>>> it was well established by the NTSB (Administrator vs Bowen) that
>>> forecast conditions of moisture plus below-freezing temps constitute
>>> known icing.
>>
>> Again, you are citing cases that long precede the new AIM definitions, so
>> of course those cases do not address my due-process argument, which
>> depends on the FAA's publication of those definitions.
>>
>>> You are late to the party, Gary.
>>
>> No, I'm just keeping abreast of recent developments, rather than assuming
>> incorrectly that nothing has changed.
>>
>> Regards,
>> Gary
>>
>>> Bob Gardner
>>>
>>> "Gary Drescher" > wrote in message
>>> ...
>>>> "Peter" > wrote in message
>>>> ...
>>>>>
>>>>> I apologise in advance as this is a topic done to death in the past,
>>>>> but I have heard various bits of info on this recently, some quoting
>>>>> FAA or NTSB rulings etc, and others disputing that they are relevant
>>>>> because there have been more recent events including a clarification
>>>>> in the AIM.
>>>>>
>>>>> I am in Europe but this is potentially relevant to me because I fly an
>>>>> N-reg aircraft (not certified for any icing conditions).
>>>>>
>>>>> What is the latest situation on this from the USA?
>>>>
>>>> The current AIM (7-1-23) explicitly states that "forecast icing
>>>> conditions" are *not* "known icing conditions":
>>>>
>>>> "Forecast Icing Conditions: Environmental conditions expected by a
>>>> National Weather Service or an FAA-approved weather provider to be
>>>> conducive to the formation of inflight icing on aircraft. "
>>>>
>>>> "Known Icing Conditions: Atmospheric conditions in which the formation
>>>> of ice is observed or detected in flight."
>>>>
>>>> http://www.faa.gov/atpubs/aim/Chap7/aim0701.html#7-1-23
>>>>
>>>> --Gary
>>>>
>>>>
>>>
>>>
>>
>>
>
>

[Gary Drescher]

"Bob Gardner" > wrote in message
. ..
>I still think you are reading something into the AIM that isn't there,

Eh? As I quoted earlier, the AIM now makes the following crystal-clear
distinction (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 inflight icing on aircraft. "

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

How am I reading anything into those definitions that isn't explicitly
stated?

> even if the AIM could be used as a defense in a certificate action.
> Judges seem to like precedents, however old, and IMHO would lean
> toward their fellow judges rather than toward the anonymous writers
> of the AIM.

Bob, that's not how precedents work. A precedent only applies when the
material facts of the new case sufficiently resemble the facts of the old
case. The new content of the AIM is a material fact that is crucially
different from the previous cases. So it's not a contest between what the
precedent says and what the AIM says. Rather, the AIM bears on whether the
precedent is even applicable.

But ok, let's imagine you're right that the FAA could argue in court, with a
straight face, that the true definition of "known icing conditions" is
completely different from the definition that the FAA now publishes in the
AIM (which is the *only* definition of that term that the FAA publishes
*anywhere*). And let's even imagine (though this is *very* far-fetched) that
an appeals court would just accept the FAA's assertion about the true
definition.

Even *given* those (rather wild) assumptions, the FAA *still* couldn't win
on appeal, for the reason I explained earlier: according to the FAA's own
argument, they have persuaded the pilot in question to commit an infraction
by advising the pilot (via the AIM) to interpret the regs using a false
definition. And it is a bedrock principle of Constitutional law the
government cannot hold someone liable for an infraction that the government
itself persuaded that person to commit (and that the person was not already
inclined to commit).

In any event, I don't understand why any pilot should worry about the
possibility of becoming the first person in the history of aviation to be
prosecuted by the FAA for complying with the AIM! It's like worrying about
being hit by a meteor. Chill; it's just not going to happen to you.

--Gary

[Gary Drescher]

"Bob Gardner" > wrote in message
. ..
> Check this out...especially the last paragraph. It is the Introduction to
> the AIM:
>
> "...The Aeronautical Information Manual will not contain informative items
> concerning everyday circumstances that pilots should, either by good
> practices or regulation, expect to encounter or avoid."

Sure--as I explicitly pointed out earlier in the thread, it would often (but
not always) be careless and reckless to fly a non-icing-certified plane in
foreceast icing conditions, even if they're not *known* icing conditions
(under the AIM's current definition). So yes, there are many times when a
pilot should avoid forecast icing conditions, even if no specific regulation
requires that avoidance, and even if the AIM doesn't explicitly say so. But
that doesn't bear on what we've been discussing, does it?

> I subscribe to the Summit Aviation CD-ROM that contains just about every
> piece of paper issued by the FAA, regularly updated, and as I look at the
> list of changes to the AIM I do not find 7-1-22 (used to be 7-1-23) listed
> anywhere. Admittedly, there is a lag between when the FAA does something
> and when Summit publishes it.

Bob, the current definitions (in 7-1-23) are on the FAA's web site:
http://www.faa.gov/atpubs/aim/Chap7/aim0701.html#7-1-23.
To verify that the definitions are new, just look in any pre-2005 copy of
the AIM, or else just Google "FAA AIM changes 7-1-23" and look at the cached
(no longer online) copy of "AIM Change 2" (2nd search result).

--Gary

[Andrew Sarangan]

Bob Gardner wrote:
> All of the cases I have in my files are certificate actions based on
> accidents...some fatal, some not.
>
> When Tony Broderick was Assistant Administrator for Certification and
> Regulation, I asked him specifically about any action based on a pilot
> report of an icing encounter in a non-known-ice airplane. He said that if
> the pilot took action to escape the icing conditions it would be a
> non-event, but if the pilot remained in the icing conditions and an
> accident/incident resulted, he would be subject to certificate action.
>
> Then I asked the controller's union VP for safety about how controllers
> react to reports of icing encounters from pilots of non-KI airplanes. He
> said that controllers have no interest in the certification status of
> airplane or pilot, and have no paperwork mechanism available anyway.
>
> I'm going to miss the controller's union meeting in Dallas the end of this
> month, so I won't be able to bang any ears.
>
> Bob Gardner
>


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

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

[Matt Whiting]

Bob Gardner wrote:
> The latest on known icing is a 2004 case...
>
> http://www.aopa.org/members/files/pilot/2005/pc0508.html
>
> In all my years of lecturing on icing and attending FAA icing conferences I
> have never heard anyone, FAA or NWS, put forward the argument that you
> espouse. It is bogus. Even before the 2004 case it was well established by
> the NTSB (Administrator vs Bowen) that forecast conditions of moisture plus
> below-freezing temps constitut known icing. You are late to the party, Gary.

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


Matt

[Bob Gardner]

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

Bob

"Matt Whiting" > wrote in message
...
> Bob Gardner wrote:
>> The latest on known icing is a 2004 case...
>>
>> http://www.aopa.org/members/files/pilot/2005/pc0508.html
>>
>> In all my years of lecturing on icing and attending FAA icing conferences
>> I have never heard anyone, FAA or NWS, put forward the argument that you
>> espouse. It is bogus. Even before the 2004 case it was well established
>> by the NTSB (Administrator vs Bowen) that forecast conditions of moisture
>> plus below-freezing temps constitut known icing. You are late to the
>> party, Gary.
>
> So are you saying that he misquoted the AIM or are you saying that the AIM
> is wrong?
>
>
> Matt

[Gary Drescher]

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

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

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

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

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

Thanks,
Gary

[[email protected]]

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

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

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

-Cory

--

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

[Bob Gardner]

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

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

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

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

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


Bob Gardner

Gary Drescher" > wrote in message
. ..
> "Bob Gardner" > wrote in message
> ...
>> I am saying that, despite Gary's use of the words implicit and explicit,
>
> Actually, I didn't use the word 'implicit'. But yes, I did point out that
> the AIM now explicitly distinguishes forecast icing conditions from known
> icing conditions. I'm baffled as to how you could disagree (given the
> definitions I quoted), but if you do, I'd be grateful if you'd explain
> why.
>
>> a section of the AIM dealing with pilot reports is not the place to be
>> looking for validation of what constitutes known icing.
>
> Huh? The icing defintions I quoted are from the Meteorology section of the
> AIM's Safety of Flight chapter. That's not the place to look for the
> meaning of known icing? Even though you would in fact find the definition
> if you looked there? (And even though that's the *only* place the FAA has
> published a definition of known or forecast icing conditions?)
>
> Yes, elsewhere in the same section (but not in the same subsection), the
> AIM talks about PIREPs. If that proximity somehow impugns the FAA's icing
> definitions, I am at a loss to imagine how, and would again be grateful
> for any semblance of an explanation.
>
> Thanks,
> Gary
>
>

[Gary Drescher]

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

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

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

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

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

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

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

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

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

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

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

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

Regards,
Gary

[Jose]

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

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

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

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

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

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

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

[Gary Drescher]

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

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

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

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

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

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

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

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

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

--Gary

[Jose]

> The second basis for appeal is the entrapment argument.

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

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

[Gary Drescher]

"Jose" > wrote in message
. ..
>> The second basis for appeal is the entrapment argument.
>
> Given that the FAA can always bust you for careless or reckless, would it
> be entrapment if they simply pulled that one out any time a nondeiced
> pilot flew into forecast icing?

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

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

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

--Gary

[Jose]

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

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

But I hope you're right.

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

[Ron Garret]

I thought I'd try to make the discussion of flying into known ice more
concrete with a scenario. The following actually happened recently.
(Not to me of course ;-)

The leading edge of a cold front has moved in. Airmet for light to
occasional moderate rime and mixed ice in clouds and precip. Forecast
freezing level 8000 and above. Pirep of light ice at 8000. I've filed
for 6000. Field is at sea level. MOCA is 5000 due to a mountain range
that the airway crosses. My heading takes me through the leading edge
of the front and into VFR conditions beyond.

Can I legally launch?

Suppose I do launch. I enter the clouds at 3000. At 5500 climbing I
start picking up light ice. What should I do? Options include:

1. Do nothing. This is not an entirely unreasonable option in this
case becase a) the ice is light and b) I can reasonably expect to pop
out of the clouds in 10-15 minutes.

2. Climb. This takes me further into the forecast freezing conditions,
but buys me terrain clearance in case things get really dicey.

3. Descend. Seems like a bad plan because it may or may not get me out
of the ice by the time I hit the MOCA.

4. Go back. Also an unattractive option because I'm all but assured of
remaining in icing conditions while I maneuver to get set up for the
approach.

5. Declare an emergency and descend below the MOCA.

6. ???

rg

[Jose]

> The leading edge of a cold front has moved in. Airmet for light to
> occasional moderate rime and mixed ice in clouds and precip. Forecast
> freezing level 8000 and above. Pirep of light ice at 8000. I've filed
> for 6000. Field is at sea level. MOCA is 5000 due to a mountain range
> that the airway crosses. My heading takes me through the leading edge
> of the front and into VFR conditions beyond.
>
> Can I legally launch?

Yes. It is not illegal to fly when there is an airmet for icing, it's
just illegal to fly into the airspace where this icing would occur (in
clouds and precip above the freezing level). You filed for (and
presumably got) clearance for below that. However, where I fly, under
these conditions I would not get a clearance for 5000, I'd get a
clearance for 9000. In those conditions, it still would not be illegal
for me to accept the clearance so long as I could stay out of clouds and
precip. Were it overcast at 8000 I could accept the clearance and
negotiate my way once I'm in the air, but I don't think that would be
legal - I'd be accepting a clearance into icing, even if I never
actually fly that clearance (what if I go NORDO).

> Suppose I do launch. I enter the clouds at 3000. At 5500 climbing I
> start picking up light ice. What should I do?

Each case is different. I have very little icing experience (and would
like to keep it that way without deice). I presume you are encountering
ice shortly after takeoff enroute to your cleared altitude of 6000.

10-15 minutes of light icing can be serious, depending on the aircraft.
Some airplanes are very sensitive to ice, some less so. I don't know
what you're flying. The most severe icing is at or near the tops of the
clouds, so the light icing may turn into moderate as you climb, and this
would be bad. Even if you popped out of the clouds, the ice might not
melt or sublimiate (my experience has been that it does not if the air
is below freezing). What are the cloud tops at? Could you top them?

The old adage "there's always warmer air above" may be true, but it
often requires a rocketship to get that high. In a spam can I would not
count on it (absent known weather to the contrary).

Other alternatives not listed include descending to VFR conditions
(could you fly VFR to your destination, even if the long way?) even if
that means shooting an approach and breaking it off when 500 feet below
the deck, changing course (say, away from the front to attack the
problem from a different angle). In your briefing you should have an
idea of where better weather is. Of course, the weather is not as
forecast so you have to take that into account.

If you get into ice, the object is to get out. Sometimes the best way
out is to keep going. What are the options (landing fields) ahead of
you should you decide to continue and find that wasn't so hot?

Declaring an emergency doesn't move granite, it just moves aluminum.
Descending below the MOCA may not be such a good idea. If you just
started picking up ice, you can probably get out of it fairly quickly by
turning around. How far away are the VFR conditions ahead? The
mountains (presumably ahead) may generate turbulence which, iced up, you
will be less able to handle.

Anyway, these are the things that go through my mind, along with turning
on pitot heat, the defroster, and anything else you've got. In any case
tell the controller you are picking up ice and would like to ...
whatever. Maybe there's another route that keeps you below the ice and
takes you around the mountain.

With what I'm reading so far, and assuming a cherokee, I'd probably tell
the controller I'm picking up ice and request 5000. If that doesn't get
me out of it, I'd probably turn around. If the cloud tops are low
enough, I might ask for higher and try to top them. (I'd guess 7000
would be too high for me to be comfortable trying that - that's 3-4
minutes of climbing in ice, and getting ice on the underside of the wings)

Jose

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

[Ron Garret]

In article >,
Jose > wrote:

> Each case is different. I have very little icing experience (and would
> like to keep it that way without deice). I presume you are encountering
> ice shortly after takeoff enroute to your cleared altitude of 6000.

Yep.

> 10-15 minutes of light icing can be serious, depending on the aircraft.
> Some airplanes are very sensitive to ice, some less so. I don't know
> what you're flying.

An SR22.

> If you get into ice, the object is to get out. Sometimes the best way
> out is to keep going. What are the options (landing fields) ahead of
> you should you decide to continue and find that wasn't so hot?

Just FYI, this was on a trip from SJC to VNY. Lots of airports all over
the place. I decided to continue because I knew that this was the
leading edge of the front and I'd pop out of the clouds sooner if I
continued than if I decided to return to SJC (which would have required
shooting an approach at that point since I was already in the clouds).

I emerged five minutes or so later with what I would guess was 1/8 inch
of rime ice. (It was a little too cold to climb out into the wing and
measure it.) It didn't come off until I descended into VNY. It had a
small but noticeable effect on performance (cost me about 5 knots).

The weather report from flight watch made is sound like all hell was
breaking lose. Severe turbulence, thunderstorms, the works. But I
ended up having a perfectly smooth flight with VMC the entire way. Go
figure.

I've had one other icing encounter. The first thing I noticed was the
air from the vents not blowing as hard as it was. At that point I had
about 1/4 inch or so on the leading edges. OAT read +3C (which is the
reason I wasn't on the lookout for ice). Called ATC and got a reroute
so I could descend into VMC, where the ice immediately came off.

rg

[Jose]

> An SR22.

Did the parachute figure into your decision making at all? (if it did,
would you admit it? :) I've never flown one, but my understanding is
that it has plenty of power (which is good) but a laminar wing (which is
sensitive to ice).

> this was on a trip from SJC to VNY.

I know those ridges... flown over them many times (VFR) from STS to EMT.
VFR down the highway (past Q99) might have also been an option and
kept you down low, if you are used to low level VFR. But with strong
winds that might not be a good idea.

> I decided to continue because I knew that this was the
> leading edge of the front and I'd pop out of the clouds sooner if I
> continued than if I decided to return

Probably a good choice, although returning you could have descended too.

> I emerged five minutes or so later with what I would guess was 1/8 inch
> of rime ice.

That's a lot of ice to pick up in five minutes. Had it been fifteen,
the outcome might have been different.

> The weather report from flight watch made is sound like all hell was
> breaking lose.

It probably was, somewhere. But sometimes the weather guessers get it
wrong.

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

[Peter R.]

Ron Garret > wrote:

<snip>
> I've had one other icing encounter. The first thing I noticed was the
> air from the vents not blowing as hard as it was. At that point I had
> about 1/4 inch or so on the leading edges. OAT read +3C (which is the
> reason I wasn't on the lookout for ice). Called ATC and got a reroute
> so I could descend into VMC, where the ice immediately came off.

Your SR22 is not equipped with the TKS system? I thought that feature was
standard on the SR22.

--
Peter

[Ron Garret]

In article >,
"Peter R." > wrote:

> Ron Garret > wrote:
>
> <snip>
> > I've had one other icing encounter. The first thing I noticed was the
> > air from the vents not blowing as hard as it was. At that point I had
> > about 1/4 inch or so on the leading edges. OAT read +3C (which is the
> > reason I wasn't on the lookout for ice). Called ATC and got a reroute
> > so I could descend into VMC, where the ice immediately came off.
>
> Your SR22 is not equipped with the TKS system? I thought that feature was
> standard on the SR22.

No, it's an option. And they (meaning OurPlane) decided not to get it
on this particular plane. After all, ice is NEVER a problem in
California, right?

rg

[Ron Garret]

In article >,
Jose > wrote:

> > An SR22.
>
> Did the parachute figure into your decision making at all?

I never seriously considered deploying it if that's what you mean.

> (if it did, would you admit it? :)

Sure. The fact that it's there is always in the back of my mind.

> I've never flown one, but my understanding is
> that it has plenty of power (which is good) but a laminar wing (which is
> sensitive to ice).

Yeah, it has gobs of power, especially with only one person and fuel to
the tabs :-) It climbs like a banshee. And it's the only plane I've
ever had ice on, so I have nothing to compare it to in that regard.


> > this was on a trip from SJC to VNY.
>
> I know those ridges... flown over them many times (VFR) from STS to EMT.
> VFR down the highway (past Q99) might have also been an option and
> kept you down low, if you are used to low level VFR. But with strong
> winds that might not be a good idea.

I thought the whole point of getting an instrument ticket was so that I
wouldn't have to scud-run any more! Besides, it was dark. Scud-running
at night seemed like a bad plan.

> > I decided to continue because I knew that this was the
> > leading edge of the front and I'd pop out of the clouds sooner if I
> > continued than if I decided to return
>
> Probably a good choice, although returning you could have descended too.

Without declaring an emergency? I don't think so. Wouldn't I have to
stay above the MVA as long as I'm in the soup?

rg

[Ron Garret]

In article >,
Jose > wrote:

Oh, one more thing...

> > I emerged five minutes or so later with what I would guess was 1/8 inch
> > of rime ice.
>
> That's a lot of ice to pick up in five minutes. Had it been fifteen,
> the outcome might have been different.

Yeah, I think I pushed my luck about as far as I ever want to that night.

rg

[[email protected]]

: > > I emerged five minutes or so later with what I would guess was 1/8 inch
: > > of rime ice.
: >
: > That's a lot of ice to pick up in five minutes. Had it been fifteen,
: > the outcome might have been different.

: Yeah, I think I pushed my luck about as far as I ever want to that night.

I would argue that 1/8" in 5 minutes is pretty heavy icing in a "spam-can"
(even in your can is made out of sand and plastic). (Un)fortunately, slippery,
high-performance singles like that make light icing a "perceived manageable risk."
Much moreso than in my Cherokee which climbs like a tub no matter what you do. In
reality, many people take the power to be an "out," but to me it seems pretty iffy to
do that. On a nice laminar wing, really strange things can happen that robs you of
lift/power very fast.

To each their own. Risk management is a personal thing.

-Cory

--

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

[Jose]

>>Did the parachute figure into your decision making at all?
> I never seriously considered deploying it if that's what you mean.

No, I meant did the presence of that additional out make it easier for
you to decide to continue on rather than turn back (did it influence
your decision to do so)?

> I thought the whole point of getting an instrument ticket was so that I
> wouldn't have to scud-run any more!

Well, sorta. It just lets you fly with your head in the clouds. :)

> Besides, it was dark. Scud-running
> at night seemed like a bad plan.

Agreed.

>>Probably a good choice, although returning you could have descended too.
>
> Without declaring an emergency? I don't think so. Wouldn't I have to
> stay above the MVA as long as I'm in the soup?

Yes, you'd need to stay above the MVA, but that probably decreases as
you return (after all, you came from there and were climbing out)

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

[Ron Garret]

In article >,
Jose > wrote:

> >>Did the parachute figure into your decision making at all?
> > I never seriously considered deploying it if that's what you mean.
>
> No, I meant did the presence of that additional out make it easier for
> you to decide to continue on rather than turn back (did it influence
> your decision to do so)?

Well, introspection only goes so far, but no, I don't think so. I think
the main factor was that the front had just moved in. An hour before it
had been clear blue skies. I was going over the central valley, so
there were no significant mountain ranges to lift the air. So I was
pretty sure that I would not be in the clouds for long (and I was right).

Also, the forecast freezing level was 6000-8000, so I figured if I did
pick up ice it would not start until I reached cruise altitude. As it
happened, I started icing up almost immediately upon entering the
clouds, at about 3500 feet. That freaked me out a little. (Actually, a
whole bunch of other stuff was also going wrong at the same time. But
that's another story.)

rg

[Ron Garret]

In article >,
wrote:

> On a nice laminar wing, really strange things can happen that robs
> you of lift/power very fast.

You're the second person to have mentioned this, but I can't find any
information about it on the web. Do you have a reference?

rg

[[email protected]]

: You're the second person to have mentioned this, but I can't find any
: information about it on the web. Do you have a reference?

Sorry, nothing in particular at hand, but I've heard *many* times about
laminar wings getting substantially reduced performance from things like a bad wax job
and bugs on the leading edge. Just a bit of ice/frost on such wings could be much
worse by comparison.

-Cory

--

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

[Peter R.]

Ron Garret > wrote:

> No, it's an option. And they (meaning OurPlane) decided not to get it
> on this particular plane. After all, ice is NEVER a problem in
> California, right?

As you may have seen elsewhere in these groups, I have a very high opinion
of the TKS system since owning and flying a Bonanza equipped with this
system.

Too bad OurPlane chose to keep costs down by electing to omit that option.
I suspect that it would not have added all that much to their members'
fees.

--
Peter

[LWG]

I think what OP is saying is that all this stuff doesn't really matter,
because an ALJ bought the FAA's argument that forecast icing, plus a smidgen
of knowlege (which could be a PIREP, could be freezing temps) is known
icing.

It's easy to understand that the FAA's use of language is just like Alice in
Wonderland, "When I use a word, it means exactly what I want it to mean,
nothing more, and nothing less." They provide the language, in the AIM or
the FARs, and then get to tell the ALJ exactly what it means. The ALJ and
the NTSB are bound to accept that interpretation, no matter how much they
may disagree.



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

[LWG]

That's the difference between science and engineering, on the one hand, and
law on the other. In the former, you score points for innovation and
creativity, usually by coming up with things no one has thought of or done
before. With law, you score points by showing that lots of people came up
with the same ideas and thoughts before, and they'd be crazy not to do the
same thing this time.

"Bob Gardner" > wrote in message
...
> Another whack at a dead horse. Let's go back a few messages to where you
> castigated me for quoting "old" case law. Are you aware of the concept of
> settled law? Miranda vs Arizona was a 1963 case, but you won't find a law
> enforcement officer who is not painfully aware that it is in full effect
> today. Administrator vs Bowen was a 1946 case; Administrator vs Irmisch
> was a 1976 case *which referred to Bowen as a precedent.* Administrator
> vs Groszer was a 1993 case *which referred to Bowen as a precedent.* The
> 2004 case that John Yodice wrote about in AOPA Pilot referred to Bowen. To
> the judges in the latter case, Bowen was not an old case, it was the
> precedent-setting case.
>
> Ever go into a law office, or see one on TV? See those shelves lined with
> law books? When someone brings a cause of action to a lawyer, that lawyer
> goes to those bookshelves and reviews OLD CASES searching for applicable
> precedents. Should he or she fail to discover a precedent that is on
> point, the opposing attorney will rub their nose in it.
>
> This discussion of the legal system comes only because you don't seem to
> realize that once a point of law becomes "settled," it takes further legal
> or legislative action to point out where its findings were in error and
> overturn it. You may have read something in the papers about Roe vs Wade??
>
> Where something is published in the AIM is a side issue; my main point is
> that the AIM cannot overturn settled law.
>
> You have a lot to offer these newsgroups, and I enjoy reading your posts.
> You just have this issue wrong. Take the time to call your local FSDO or
> the Regional Counsel and get their take on the subject.
>
>
> Bob Gardner
>
> Gary Drescher" > wrote in message
> . ..
>> "Bob Gardner" > wrote in message
>> ...
>>> I am saying that, despite Gary's use of the words implicit and explicit,
>>
>> Actually, I didn't use the word 'implicit'. But yes, I did point out that
>> the AIM now explicitly distinguishes forecast icing conditions from known
>> icing conditions. I'm baffled as to how you could disagree (given the
>> definitions I quoted), but if you do, I'd be grateful if you'd explain
>> why.
>>
>>> a section of the AIM dealing with pilot reports is not the place to be
>>> looking for validation of what constitutes known icing.
>>
>> Huh? The icing defintions I quoted are from the Meteorology section of
>> the AIM's Safety of Flight chapter. That's not the place to look for the
>> meaning of known icing? Even though you would in fact find the definition
>> if you looked there? (And even though that's the *only* place the FAA has
>> published a definition of known or forecast icing conditions?)
>>
>> Yes, elsewhere in the same section (but not in the same subsection), the
>> AIM talks about PIREPs. If that proximity somehow impugns the FAA's icing
>> definitions, I am at a loss to imagine how, and would again be grateful
>> for any semblance of an explanation.
>>
>> Thanks,
>> Gary
>>
>>
>
>

[Gary Drescher]

"LWG" > wrote in message
. ..
> It's easy to understand that the FAA's use of language is just like Alice
> in Wonderland, "When I use a word, it means exactly what I want it to
> mean, nothing more, and nothing less." They provide the language, in the
> AIM or the FARs, and then get to tell the ALJ exactly what it means. The
> ALJ and the NTSB are bound to accept that interpretation, no matter how
> much they may disagree.

No, that's not true. They're only bound to accept any *reasonable*
interpretation. The AIM now explicitly defines "known icing conditions" as
conditions in which the formation of ice in flight is actually observed
rather than merely forecast. The FAA could not reasonably interpret *that*
definition to refer to conditions in which icing is unobserved but merely
forecast.

--Gary

[LWG]

I wish it were true. Isn't it the case that the NTSB reversed an ALJ based
upon its interpretation of an FAR, and that decision was appealed to the
D.C. Court of Appeals, which held that the NTSB must defer to the
interpretation advanced by the agency?

"Gary Drescher" > wrote in message
...
> "LWG" > wrote in message
> . ..
>> It's easy to understand that the FAA's use of language is just like Alice
>> in Wonderland, "When I use a word, it means exactly what I want it to
>> mean, nothing more, and nothing less." They provide the language, in the
>> AIM or the FARs, and then get to tell the ALJ exactly what it means. The
>> ALJ and the NTSB are bound to accept that interpretation, no matter how
>> much they may disagree.
>
> No, that's not true. They're only bound to accept any *reasonable*
> interpretation. The AIM now explicitly defines "known icing conditions" as
> conditions in which the formation of ice in flight is actually observed
> rather than merely forecast. The FAA could not reasonably interpret *that*
> definition to refer to conditions in which icing is unobserved but merely
> forecast.
>
> --Gary
>
>

[Gary Drescher]

"LWG" > wrote in message
...
> I wish it were true. Isn't it the case that the NTSB reversed an ALJ
> based upon its interpretation of an FAR, and that decision was appealed to
> the D.C. Court of Appeals, which held that the NTSB must defer to the
> interpretation advanced by the agency?

No, I think that's an Usenet legend. The appeals court may have done that in
a particular case, and may have held more generally that the FAA gets wide
latitude in its interpretations of the regs, but the court wouldn't
categorically waive a basic reasonableness test; that would be tantamount to
abandoning any meaningful judicial review, and abandoning the Constitutional
guarantee of due process.

As the saying goes, extraordinary claims require extraordinary evidence. So
if someone can actually document an appeals court decision requiring
absolute, unconditional deference to the FAA's interpretations, then I'll
believe it; otherwise not.

--Gary

> "Gary Drescher" > wrote in message
> ...
>> "LWG" > wrote in message
>> . ..
>>> It's easy to understand that the FAA's use of language is just like
>>> Alice in Wonderland, "When I use a word, it means exactly what I want it
>>> to mean, nothing more, and nothing less." They provide the language, in
>>> the AIM or the FARs, and then get to tell the ALJ exactly what it means.
>>> The ALJ and the NTSB are bound to accept that interpretation, no matter
>>> how much they may disagree.
>>
>> No, that's not true. They're only bound to accept any *reasonable*
>> interpretation. The AIM now explicitly defines "known icing conditions"
>> as conditions in which the formation of ice in flight is actually
>> observed rather than merely forecast. The FAA could not reasonably
>> interpret *that* definition to refer to conditions in which icing is
>> unobserved but merely forecast.
>>
>> --Gary
>>
>>
>
>

[Jose]

> requiring
> absolute, unconditional deference to the FAA's interpretations

You'll never find that. However, it would certainly be sufficient to
find a case where an unreasonable definition was upheld.

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

[Gary Drescher]

"Jose" > wrote in message
m...
>> requiring absolute, unconditional deference to the FAA's interpretations
>
> You'll never find that. However, it would certainly be sufficient to find
> a case where an unreasonable definition was upheld.

It depends. That would still be troubling, but nowhere near as troubling as
the absolute-deference requirement that some people believe exists. The
important difference is that upholding a particular unreasonable
interpretation would not automatically generalize to requiring all
unreasonable interpretations to be upheld. But so far, no one here has
documented even a single instance of a blatantly unreasonable FAA
interpretation of the FARs being upheld.

--Gary

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

[LWG]

It's no usenet legend, it's FAA v. Merrell. The standard is absolute,
abject deference.
http://www.aviationlawcorp.com/content/dangerous.html#appeals

--------
The Court of Appeals Relegates the NTSB to Rubber-Stamping
On appeal, The FAA argued that the NTSB is required to defer to the FAA's
litigation interpretation of its own regulations. The NTSB refused to defer
to the FAA in this case. The Board ruled that the Agency had offered no
evidence of any validly adopted written policy guidelines on the issue. The
NTSB believed that the agency had merely offered the "litigation statements"
of FAA enforcement lawyers on the question of how to interpret the
regulations pertinent to a misunderstood ATC clearance. The Board felt that
the interpretation of the regulation about whether the captain was careless
under the circumstances was factual in nature and it has always been within
the prerogatives of the Board to reverse factual findings regarding alleged
violations of the rules.
The D.C. Circuit Court of Appeals overruled the decision of the NTSB and
held that the refusal of the Board to defer to the FAA on this question of
agency interpretation was "error." The circuit justices ruled that:
The FAA is not required to promulgate interpretations through rule making or
the issuance of policy guidelines, but may instead do so through litigation
before the NTSB .... The fact that this mode of regulatory interpretation
necessarily is advanced through the litigation statements of counsel does
not relieve the NTSB of its statutory obligation to accorded due deference.
FAA v. Merrell at 577-578.
The Circuit Court went so far as to tell the Board that because the FAA is
entitled to launch new policies through administrative adjudication, "it may
sometimes be necessary for the NTSB to accommodate such policies by changing
its jurist prudential course." Even more amazingly, the Court held that
"because the Board is bound to follow such interpretations, it may at times
be both necessary and proper for the Board to depart from its prior case
law."
-------
"Gary Drescher" > wrote in message
...
> "Jose" > wrote in message
> m...
>>> requiring absolute, unconditional deference to the FAA's interpretations
>>
>> You'll never find that. However, it would certainly be sufficient to
>> find a case where an unreasonable definition was upheld.
>
> It depends. That would still be troubling, but nowhere near as troubling
> as the absolute-deference requirement that some people believe exists. The
> important difference is that upholding a particular unreasonable
> interpretation would not automatically generalize to requiring all
> unreasonable interpretations to be upheld. But so far, no one here has
> documented even a single instance of a blatantly unreasonable FAA
> interpretation of the FARs being upheld.
>
> --Gary
>
>> Jose
>> --
>> Nothing takes longer than a shortcut.
>> for Email, make the obvious change in the address.
>
>

[Gary Drescher]

"LWG" > wrote in message
...
>
> It's no usenet legend, it's FAA v. Merrell. The standard is absolute,
> abject deference.
> http://www.aviationlawcorp.com/content/dangerous.html#appeals

No, absolute deference is not the standard, but thanks for the pointer to
that article. You may have identified the source of the legend!

Here is the text of the appeals court decision in FAA v. Merrell:
http://www.ll.georgetown.edu/federal/judicial/dc/opinions/98opinions/98-1365a.html

Nowhere in that decision will you find a requirement for absolute deference
by the NTSB or by the appeals court to FAA interpretations. On the contrary,
the qualifications are quite clearly stated: the NTSB is "bound by all
validly adopted interpretations of laws and regulations the Administrator
carries out ... unless the Board finds an interpretation is arbitrary,
capricious, or otherwise not according to law". And the appeals court's
deference is similarly qualified.

In FAA v. Merrell, the court addressed an aspect of the regulations that had
not been the subject of written guidance by the FAA, and concluded that the
FAA was thereby free to impose whatever *reasonable* interpretation it chose
(that is, an interpretation that is not arbitrary, capricious, or otherwise
contrary to law).

In contrast, the question under discussion in this thread concerns whether
the FAA can offer explicit, unambiguous written guidance in the AIM, and
then interpret a regulatory term in a manner exactly *opposite* to that
guidance. *That* would certainly be arbitrary and capricious, and would not
be upheld on appeal; nothing in FAA v. Merrell suggests otherwise.

--Gary

> --------
> The Court of Appeals Relegates the NTSB to Rubber-Stamping
> On appeal, The FAA argued that the NTSB is required to defer to the FAA's
> litigation interpretation of its own regulations. The NTSB refused to
> defer to the FAA in this case. The Board ruled that the Agency had offered
> no evidence of any validly adopted written policy guidelines on the issue.
> The NTSB believed that the agency had merely offered the "litigation
> statements" of FAA enforcement lawyers on the question of how to interpret
> the regulations pertinent to a misunderstood ATC clearance. The Board felt
> that the interpretation of the regulation about whether the captain was
> careless under the circumstances was factual in nature and it has always
> been within the prerogatives of the Board to reverse factual findings
> regarding alleged violations of the rules.
> The D.C. Circuit Court of Appeals overruled the decision of the NTSB and
> held that the refusal of the Board to defer to the FAA on this question of
> agency interpretation was "error." The circuit justices ruled that:
> The FAA is not required to promulgate interpretations through rule making
> or the issuance of policy guidelines, but may instead do so through
> litigation before the NTSB .... The fact that this mode of regulatory
> interpretation necessarily is advanced through the litigation statements
> of counsel does not relieve the NTSB of its statutory obligation to
> accorded due deference. FAA v. Merrell at 577-578.
> The Circuit Court went so far as to tell the Board that because the FAA is
> entitled to launch new policies through administrative adjudication, "it
> may sometimes be necessary for the NTSB to accommodate such policies by
> changing its jurist prudential course." Even more amazingly, the Court
> held that "because the Board is bound to follow such interpretations, it
> may at times be both necessary and proper for the Board to depart from its
> prior case law."
> -------
> "Gary Drescher" > wrote in message
> ...
>> "Jose" > wrote in message
>> m...
>>>> requiring absolute, unconditional deference to the FAA's
>>>> interpretations
>>>
>>> You'll never find that. However, it would certainly be sufficient to
>>> find a case where an unreasonable definition was upheld.
>>
>> It depends. That would still be troubling, but nowhere near as troubling
>> as the absolute-deference requirement that some people believe exists.
>> The important difference is that upholding a particular unreasonable
>> interpretation would not automatically generalize to requiring all
>> unreasonable interpretations to be upheld. But so far, no one here has
>> documented even a single instance of a blatantly unreasonable FAA
>> interpretation of the FARs being upheld.
>>
>> --Gary
>>
>>> Jose
>>> --
>>> Nothing takes longer than a shortcut.
>>> for Email, make the obvious change in the address.
>>
>>
>
>

[LWG]

I don't think you have any idea how the system works. The FAA is going to
charge you with careless and reckless in addition to the regs pertaining to
known ice. They're going to argue longstanding precedent, and you're going
to argue that precedent is not on point *because a non-regulatory
administrative manual* had a definition changed. The ALJ is going to look
at FAA counsel and ask "Well?" FAA counsel is going to say "So what, there
is a well-established body of prior decisions which support the enforcement
action." The ALJ, and the NTSB on appeal, are bound to accept the
interpretation of the FARs which is advanced by the Administrator, unless
the interpretation is arbitrary and capricious.

I don't know that I've seen many cases on the "arbitrary or capricious"
standard as it would be applied to an interpretation of law. I've seen lots
of administrative appeals and petitions for writs of mandamus where it was
alleged that the agency's findings of fact were arbitrary and capricious
because they were not supported by substantial evidence, but that's an
entirely different matter. Case law applicable to cases where there is no
statutory right of appeal adds "illegal" as a basis for issuing a writ of
mandamus, as do many statutes which confer a right of appeal in
adminstrative cases. The point is here FAA counsel gets to tell the ALJ was
is legal and what is illegal, and usually it is the other way around.

"Gary Drescher" > wrote in message
. ..
> "LWG" > wrote in message
> ...
>>
>> It's no usenet legend, it's FAA v. Merrell. The standard is absolute,
>> abject deference.
>> http://www.aviationlawcorp.com/content/dangerous.html#appeals
>
> No, absolute deference is not the standard, but thanks for the pointer to
> that article. You may have identified the source of the legend!
>
> Here is the text of the appeals court decision in FAA v. Merrell:
> http://www.ll.georgetown.edu/federal/judicial/dc/opinions/98opinions/98-1365a.html
>
> Nowhere in that decision will you find a requirement for absolute
> deference by the NTSB or by the appeals court to FAA interpretations. On
> the contrary, the qualifications are quite clearly stated: the NTSB is
> "bound by all validly adopted interpretations of laws and regulations the
> Administrator carries out ... unless the Board finds an interpretation is
> arbitrary, capricious, or otherwise not according to law". And the appeals
> court's deference is similarly qualified.
>
> In FAA v. Merrell, the court addressed an aspect of the regulations that
> had not been the subject of written guidance by the FAA, and concluded
> that the FAA was thereby free to impose whatever *reasonable*
> interpretation it chose (that is, an interpretation that is not arbitrary,
> capricious, or otherwise contrary to law).
>
> In contrast, the question under discussion in this thread concerns whether
> the FAA can offer explicit, unambiguous written guidance in the AIM, and
> then interpret a regulatory term in a manner exactly *opposite* to that
> guidance. *That* would certainly be arbitrary and capricious, and would
> not be upheld on appeal; nothing in FAA v. Merrell suggests otherwise.
>
> --Gary
>
>> --------
>> The Court of Appeals Relegates the NTSB to Rubber-Stamping
>> On appeal, The FAA argued that the NTSB is required to defer to the FAA's
>> litigation interpretation of its own regulations. The NTSB refused to
>> defer to the FAA in this case. The Board ruled that the Agency had
>> offered no evidence of any validly adopted written policy guidelines on
>> the issue. The NTSB believed that the agency had merely offered the
>> "litigation statements" of FAA enforcement lawyers on the question of how
>> to interpret the regulations pertinent to a misunderstood ATC clearance.
>> The Board felt that the interpretation of the regulation about whether
>> the captain was careless under the circumstances was factual in nature
>> and it has always been within the prerogatives of the Board to reverse
>> factual findings regarding alleged violations of the rules.
>> The D.C. Circuit Court of Appeals overruled the decision of the NTSB and
>> held that the refusal of the Board to defer to the FAA on this question
>> of agency interpretation was "error." The circuit justices ruled that:
>> The FAA is not required to promulgate interpretations through rule making
>> or the issuance of policy guidelines, but may instead do so through
>> litigation before the NTSB .... The fact that this mode of regulatory
>> interpretation necessarily is advanced through the litigation statements
>> of counsel does not relieve the NTSB of its statutory obligation to
>> accorded due deference. FAA v. Merrell at 577-578.
>> The Circuit Court went so far as to tell the Board that because the FAA
>> is entitled to launch new policies through administrative adjudication,
>> "it may sometimes be necessary for the NTSB to accommodate such policies
>> by changing its jurist prudential course." Even more amazingly, the Court
>> held that "because the Board is bound to follow such interpretations, it
>> may at times be both necessary and proper for the Board to depart from
>> its prior case law."
>> -------
>> "Gary Drescher" > wrote in message
>> ...
>>> "Jose" > wrote in message
>>> m...
>>>>> requiring absolute, unconditional deference to the FAA's
>>>>> interpretations
>>>>
>>>> You'll never find that. However, it would certainly be sufficient to
>>>> find a case where an unreasonable definition was upheld.
>>>
>>> It depends. That would still be troubling, but nowhere near as troubling
>>> as the absolute-deference requirement that some people believe exists.
>>> The important difference is that upholding a particular unreasonable
>>> interpretation would not automatically generalize to requiring all
>>> unreasonable interpretations to be upheld. But so far, no one here has
>>> documented even a single instance of a blatantly unreasonable FAA
>>> interpretation of the FARs being upheld.
>>>
>>> --Gary
>>>
>>>> Jose
>>>> --
>>>> Nothing takes longer than a shortcut.
>>>> for Email, make the obvious change in the address.
>>>
>>>
>>
>>
>
>

[Gary Drescher]

> The point is here FAA counsel gets to tell the ALJ what is legal and what
> is illegal, and usually it is the other way around.

Your original point was much stronger, and turns out to be incorrect:
contrary to your assertion, FAA v. Merrell does not require absolute
deference to FAA interpretations, but rather requires holds FAA
interpretations to a standard of reasonableness, as I had claimed to begin
with.

> I don't think you have any idea how the system works. The FAA is going to
> charge you with careless and reckless in addition to the regs pertaining
> to known ice.

I addressed this point earlier in the thread. If you have a reply to what I
already argued, please post it and I'll be glad to respond.

> They're going to argue longstanding precedent, and you're going to argue
> that precedent is not on point *because a non-regulatory administrative
> manual* had a definition changed.

Not changed, added. There was no previous written definition. In FAA v.
Merrell, the appeals court addresses the significance of "written guidance"
(or the lack thereof) from the FAA about interpreting the regs; the court
does not limit its discussion to guidance contained in the regs themselves.

> The ALJ, and the NTSB on appeal, are bound to accept the interpretation of
> the FARs which is advanced by the Administrator, unless the interpretation
> is arbitrary and capricious.

Yes; again, that's exactly what I've been saying: the interpretation can be
overturned if it's blatantly unreasonable (arbitrary, capricious, or
otherwise illegal).

> I don't know that I've seen many cases on the "arbitrary or capricious"
> standard as it would be applied to an interpretation of law.

Then on what basis do you dispute the commonsense claim that it would be
arbitrary and capricious for the FAA to tell pilots, in its main advisory
publication for pilots, that a given regulatory term is correctly
interpreted a certain way, and then to turn around and argue in an
enforcement action that that's the wrong interpretation? (And why wouldn't
it constitute entrapment for the government to publish a manual that
persuades a pilot to commit an infraction, and then bust him for it?)

--Gary

[LWG]

Entrapment is a concept applicable only to criminal prosecutions. It does
not apply to enforcement actions. You do not have a right to counsel, a
right against self-incrimination, or other rights associated with criminal
prosecutions in enforcement actions.

"Gary Drescher" > wrote in message
...
>> The point is here FAA counsel gets to tell the ALJ what is legal and what
>> is illegal, and usually it is the other way around.
>
> Your original point was much stronger, and turns out to be incorrect:
> contrary to your assertion, FAA v. Merrell does not require absolute
> deference to FAA interpretations, but rather requires holds FAA
> interpretations to a standard of reasonableness, as I had claimed to begin
> with.
>
>> I don't think you have any idea how the system works. The FAA is going to
>> charge you with careless and reckless in addition to the regs pertaining
>> to known ice.
>
> I addressed this point earlier in the thread. If you have a reply to what
> I already argued, please post it and I'll be glad to respond.
>
>> They're going to argue longstanding precedent, and you're going to argue
>> that precedent is not on point *because a non-regulatory administrative
>> manual* had a definition changed.
>
> Not changed, added. There was no previous written definition. In FAA v.
> Merrell, the appeals court addresses the significance of "written
> guidance" (or the lack thereof) from the FAA about interpreting the regs;
> the court does not limit its discussion to guidance contained in the regs
> themselves.
>
>> The ALJ, and the NTSB on appeal, are bound to accept the interpretation
>> of the FARs which is advanced by the Administrator, unless the
>> interpretation is arbitrary and capricious.
>
> Yes; again, that's exactly what I've been saying: the interpretation can
> be overturned if it's blatantly unreasonable (arbitrary, capricious, or
> otherwise illegal).
>
>> I don't know that I've seen many cases on the "arbitrary or capricious"
>> standard as it would be applied to an interpretation of law.
>
> Then on what basis do you dispute the commonsense claim that it would be
> arbitrary and capricious for the FAA to tell pilots, in its main advisory
> publication for pilots, that a given regulatory term is correctly
> interpreted a certain way, and then to turn around and argue in an
> enforcement action that that's the wrong interpretation? (And why wouldn't
> it constitute entrapment for the government to publish a manual that
> persuades a pilot to commit an infraction, and then bust him for it?)
>
> --Gary
>
>

[Gary Drescher]

"LWG" > wrote in message
...
> Entrapment is a concept applicable only to criminal prosecutions. It does
> not apply to enforcement actions.

Can you say why you believe entrapment only applies to criminal cases? Here
are a couple of reasons to believe the contrary:

1) In Sorrells v. US, the US Supreme Court wrote "The doctrine of entrapment
in criminal law is the analogue of the same rule applied in civil
proceedings".
http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=287&invol=435

2) In Patty v Board of Medical Examiners, a California superior court
sustained a defendant's entrapment defense in an administrative proceeding,
writing "the majority of our sister states which have passed on the legal
question at issue recognize entrapment as a defense in administrative
disciplinary proceedings".
http://online.ceb.com/CalCases/C3/9C3d356.htm

--Gary

> "Gary Drescher" > wrote in message
> ...
>>> The point is here FAA counsel gets to tell the ALJ what is legal and
>>> what is illegal, and usually it is the other way around.
>>
>> Your original point was much stronger, and turns out to be incorrect:
>> contrary to your assertion, FAA v. Merrell does not require absolute
>> deference to FAA interpretations, but rather requires holds FAA
>> interpretations to a standard of reasonableness, as I had claimed to
>> begin with.
>>
>>> I don't think you have any idea how the system works. The FAA is going
>>> to charge you with careless and reckless in addition to the regs
>>> pertaining to known ice.
>>
>> I addressed this point earlier in the thread. If you have a reply to what
>> I already argued, please post it and I'll be glad to respond.
>>
>>> They're going to argue longstanding precedent, and you're going to argue
>>> that precedent is not on point *because a non-regulatory administrative
>>> manual* had a definition changed.
>>
>> Not changed, added. There was no previous written definition. In FAA v.
>> Merrell, the appeals court addresses the significance of "written
>> guidance" (or the lack thereof) from the FAA about interpreting the regs;
>> the court does not limit its discussion to guidance contained in the regs
>> themselves.
>>
>>> The ALJ, and the NTSB on appeal, are bound to accept the interpretation
>>> of the FARs which is advanced by the Administrator, unless the
>>> interpretation is arbitrary and capricious.
>>
>> Yes; again, that's exactly what I've been saying: the interpretation can
>> be overturned if it's blatantly unreasonable (arbitrary, capricious, or
>> otherwise illegal).
>>
>>> I don't know that I've seen many cases on the "arbitrary or capricious"
>>> standard as it would be applied to an interpretation of law.
>>
>> Then on what basis do you dispute the commonsense claim that it would be
>> arbitrary and capricious for the FAA to tell pilots, in its main advisory
>> publication for pilots, that a given regulatory term is correctly
>> interpreted a certain way, and then to turn around and argue in an
>> enforcement action that that's the wrong interpretation? (And why
>> wouldn't it constitute entrapment for the government to publish a manual
>> that persuades a pilot to commit an infraction, and then bust him for
>> it?)
>>
>> --Gary
>>
>>
>
>

[LWG]

Sorrells quote:

"Suggested analogies from procedure in civil cases are not helpful. When
courts of law refuse to sustain alleged causes of action which grow out of
illegal schemes, the applicable law itself denies the right to recover".

This hardly suppports your argument.

Patty quote:

"it is entrapment to lure a person into the commission of a crime he did not
himself intend to commit." Patty was a professional license revocation based
upon an act which amounted to criminal conduct.

Entrapment cases talk about the government's "overbearing of the will" of
the defendant, to the point where the defendant did not have the mens rea to
commit the offense.

Remember you are asking an agency to act fairly and reasonably. This is the
same agency that treatens to shoot you down (in my neighborhood, anyway) if
you don't make contact with the controlling authority, but then
*steadfastly* refuses to provide timely and accurate information about the
frequencies you need to contact that authority.

But go ahead, make that argument and tell us how it works out for you.


"Gary Drescher" > wrote in message
. ..
> "LWG" > wrote in message
> ...
>> Entrapment is a concept applicable only to criminal prosecutions. It
>> does not apply to enforcement actions.
>
> Can you say why you believe entrapment only applies to criminal cases?
> Here are a couple of reasons to believe the contrary:
>
> 1) In Sorrells v. US, the US Supreme Court wrote "The doctrine of
> entrapment in criminal law is the analogue of the same rule applied in
> civil proceedings".
> http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=287&invol=435
>
> 2) In Patty v Board of Medical Examiners, a California superior court
> sustained a defendant's entrapment defense in an administrative
> proceeding, writing "the majority of our sister states which have passed
> on the legal question at issue recognize entrapment as a defense in
> administrative disciplinary proceedings".
> http://online.ceb.com/CalCases/C3/9C3d356.htm
>

[Gary Drescher]

"LWG" > wrote in message
...
> Sorrells quote:
>
> "Suggested analogies from procedure in civil cases are not helpful. When
> courts of law refuse to sustain alleged causes of action which grow out of
> illegal schemes, the applicable law itself denies the right to recover".
>
> This hardly suppports your argument.

It doesn't bear on my argument at all; I wasn't proposing to draw any
conclusion about criminal law by analogy to civil law. I was simply quoting
a US Supreme Court reference to the existence of an entrapment concept in
noncriminal law, directly contradicting your (unsupported) claim that
entrapment applies exclusively to criminal cases.

> Patty was a professional license revocation based upon an act which
> amounted to criminal conduct.

It was an administrative (noncriminal) case, and any putative criminal
status of the conduct was not essential to the reasoning by which the
entrapment defense was deemed applicable. For example, the decision
approvingly quoted the Florida Supreme Court "that '[i]t is contrary to law
and public policy for an officer or member of an administrative board to
induce the commission of a wrong or a crime for the purpose of securing a
pretext to punish it.' (Peters v. Brown (Fla. 1951) 55 So.2d 334, 336.)".

Note the words "a wrong *or* a crime"; there is no restriction to criminal
offenses as opposed to other infractions. Nor would such a restriction be
germane to the decision's stated rationale for recognizing an entrapment
defense, namely, the erosion of public confidence in justice that would
ensue if authorities can induce the commission of infractions (by persons
not otherwise so inclined) and then prosecute those infractions.

> Entrapment cases talk about the government's "overbearing of the will" of
> the defendant, to the point where the defendant did not have the mens rea
> to commit the offense.

That's one of several forms of entrapment (not the one that's relevant to
what we're discussing).

> But go ahead, make that argument and tell us how it works out for you.

I've already offered to report back here if I ever get in trouble. But
meanwhile (since it's likely to be a *very* long wait), it would be helpful
if you could cite even a single example, ever, of the FAA busting a pilot
for trusting a definition of a regulatory term (or any other information)
that the FAA has published in the AIM.

I've already shown here that, contrary to legend, appeals court rulings
require FAA interpretations to meet a standard of reasonableness that would
overturn any such capriciousness; and even if not, the concept of entrapment
would still be applicable. Those due-process safeguards, combined with the
absence of any precedent for busting a pilot for abiding by the AIM, make it
difficult to see why anyone would take seriously the possibility that they
might become the first pilot in the history of aviation to be ensnared by
such a trap.

--Gary

[LWG]

> It doesn't bear on my argument at all; I wasn't proposing to draw any
> conclusion about criminal law by analogy to civil law. I was simply
> quoting
> a US Supreme Court reference to the existence of an entrapment concept in
> noncriminal law, directly contradicting your (unsupported) claim that
> entrapment applies exclusively to criminal cases.

But you haven't shown where it *does* apply to enforcement action.

>> Patty was a professional license revocation based upon an act which
>> amounted to criminal conduct.
>
> It was an administrative (noncriminal) case, and any putative criminal
> status of the conduct was not essential to the reasoning by which the
> entrapment defense was deemed applicable. For example, the decision
> approvingly quoted the Florida Supreme Court "that '[i]t is contrary to
> law
> and public policy for an officer or member of an administrative board to
> induce the commission of a wrong or a crime for the purpose of securing a
> pretext to punish it.' (Peters v. Brown (Fla. 1951) 55 So.2d 334, 336.)".
>
> Note the words "a wrong *or* a crime"; there is no restriction to criminal
> offenses as opposed to other infractions. Nor would such a restriction be
> germane to the decision's stated rationale for recognizing an entrapment
> defense, namely, the erosion of public confidence in justice that would
> ensue if authorities can induce the commission of infractions (by persons
> not otherwise so inclined) and then prosecute those infractions.
>
>> Entrapment cases talk about the government's "overbearing of the will" of
>> the defendant, to the point where the defendant did not have the mens rea
>> to commit the offense.
>
> That's one of several forms of entrapment (not the one that's relevant to
> what we're discussing).
>
>> But go ahead, make that argument and tell us how it works out for you.
>
> I've already offered to report back here if I ever get in trouble. But
> meanwhile (since it's likely to be a *very* long wait), it would be
> helpful
> if you could cite even a single example, ever, of the FAA busting a pilot
> for trusting a definition of a regulatory term (or any other information)
> that the FAA has published in the AIM.

But you haven't shown where a pilot was exonerated in reliance upon a
regulatory term that differed from a position advanced by the FAA.

> I've already shown here that, contrary to legend, appeals court rulings
> require FAA interpretations to meet a standard of reasonableness that
> would
> overturn any such capriciousness; and even if not, the concept of
> entrapment
> would still be applicable.

No, you haven't, and no, it wouldn't. There is nothing but dicta talking
about reasonableness. Please cite one holding which mandates that the FAA's
position meet a standard of reasonableness. Please cite one holding which
establishes that reliance upon and AIM provision gives rise to an entrapment
defense if the FAA asserts an interpretation of an FAR to the contrary.

>Those due-process safeguards, combined with the
> absence of any precedent for busting a pilot for abiding by the AIM, make
> it
> difficult to see why anyone would take seriously the possibility that they
> might become the first pilot in the history of aviation to be ensnared by
> such a trap.
>
> --Gary
>
>
>

[Gary Drescher]

"LWG" > wrote in message
...
>> I was simply quoting
>> a US Supreme Court reference to the existence of an entrapment concept in
>> noncriminal law, directly contradicting your (unsupported) claim that
>> entrapment applies exclusively to criminal cases.
>
> But you haven't shown where it *does* apply to enforcement action.

I cited an example of an administrative penalty being overturned because of
entrapment. And the appeals court decision in that case cited in turn many
other examples of successful noncriminal invocations of the entrapment
defense. The stated rationale is clear, simple, and obvious: it is contrary
to the interests of justice to prosecute an infraction that the prosecuting
authority has itself induced someone to commit (someone who was not
otherwise inclined to do so).

>> I've already offered to report back here if I ever get in trouble. But
>> meanwhile (since it's likely to be a *very* long wait), it would be
>> helpful
>> if you could cite even a single example, ever, of the FAA busting a pilot
>> for trusting a definition of a regulatory term (or any other information)
>> that the FAA has published in the AIM.
>
> But you haven't shown where a pilot was exonerated in reliance upon a
> regulatory term that differed from a position advanced by the FAA.

Of course not. The courts give the FAA wide latitude in interpreting its
regulations and regulatory terminology. The FAA's interpretation can only be
overturned if it's blatantly ridiculous, and they have no incentive ever to
press for an enforcement action based on such an interpretation, because,
well, they'd look blatanly ridiculous (and would be overturned on appeal).

Analogously, I can't find an example of a pilot being exonerated after being
charged with recklessness on the grounds that flying on Tuesday afternoons
is inherently reckless. There's no such exoneration because, of course, no
such charge has ever been brought, nor would it be. But the lack of any such
prior exoneration is not something that should worry us.

>> I've already shown here that, contrary to legend, appeals court rulings
>> require FAA interpretations to meet a standard of reasonableness that
>> would
>> overturn any such capriciousness; and even if not, the concept of
>> entrapment
>> would still be applicable.
>
> No, you haven't, and no, it wouldn't. There is nothing but dicta talking
> about reasonableness. Please cite one holding which mandates that the
> FAA's position meet a standard of reasonableness.

In FAA v. Merrell, the court said the NTSB (and the appeals court) is not
bound to uphold an FAA interpretation that is "arbitrary, capricious, or
otherwise not according to law". If the court were not going to overturn
such an interpretation, what would be the point of having an appellate
review of FAA enforcement actions at all?

It's true that the court did not spell out what constitutes arbitrariness or
capriciousness. In the absence of such a specification, we should just use
the ordinary, commonsense meaning of those words. Thus, we should ask if a
reasonable person would consider it arbitrary or capricious for the FAA to
prominently, officially advise pilots about the correct meaning of a
regulatory term, and then claim in an enforcement action that the correct
meaning is something very different. I think the answer is clear.

> Please cite one holding which establishes that reliance upon an AIM
> provision gives rise to an entrapment defense if the FAA asserts an
> interpretation of an FAR to the contrary.

Once again: I can't, just as I can't cite an exoneration from the charge of
flying on a Tuesday afternoon, because no enforcement action on such a
preposterous basis has ever been attempted in the first place.

I would not advise pilots to worry about such bizarre possibilities; but of
course each person must independently decide what hazards are worth taking
seriously.

--Gary

[Ron Natalie]

Gary Drescher wrote:

> The current AIM (7-1-23) explicitly states that "forecast icing conditions"
> are *not* "known icing conditions":
>
Nearly every place where there is a reference to prohibition of flight
into icing conditions, "known" is followed by "or forecast."

It's a moot issue. While, people talk about "known" ice certification,
the truth is that enforcement is literal and forecast ice will get you
in trouble with the regs.