They Keep Popping Up When You Least Expect Them!

By Richard I. Ward, President, Twin Bonanza Association

While filing an IFR flight plan for a fairly distant trip from my home base in Three Rivers (MI) in T-Bone N800EX, the Lansing FSS fellow asked me if I had checked on the current Temporary Flight Restricted areas (TFRs) on my route. My response was (I wonder what yours would be) "No! I never do that as long as I'm on an IFR flight plan, nor do I file around restricted areas when filing a direct to clearance." His following comeback was emphatic "Having you avoid these areas is in no way the legal responsibility of Air Traffic Control, and it is your complete responsibility."

Wow, That was a revelation and I momentarily went into an argue mode, then backed off rapidly when I envisioned a brick wall being constructed before my very eyes. Not only that, but I was getting demoralized by a more important factor: Having to put up with the Michigan winter too much longer, while there was sunshine in view at the end of our planned trip. The FSS fellow accepted my flight plan and shortly thereafter freed ourselves from the bonds of earth.

Well let's see now I was proven wrong on a point that I argued about 25 or so years ago, and it's just possible that I could be wrong on this argument. I later decided to contact the AOPA and give them the opportunity to research this subject. To their credit they sent my email out to the appropriate party at the FAA Here was their response:

Hello Mr. Ward,

Your email was forwarded to us here in the Air Traffic department of AOPA. I contacted FAA headquarters for an official response to your question and received the following explanation:  Guess you could say it is the responsibility of both the pilot and air traffic controller:

FAA Order 7110.65 states that ATC shall vector aircraft for separation and safety. This includes vectoring aircraft around TFRs as well as traffic. For the pilot, the applicable regulation is 14 CFR 91.103 which pertains to preflight action and states that "Each pilot in command shall, before beginning a flight, become familiar with all available information concerning that flight," which includes TFRs. Additional regulations are covered in 14 CFR 91.13 and whichever CFR promulgated the TFR (e.g. 14 CFR 91.137; 14 CFR 91.138; 14 CFR 91.139; 14 CFR 91.141; 14 CFR 91.143; 14 CFR 91.145)

From a legal standpoint TFR avoidance is a joint responsibility. (This is in no way to be construed as a legal interpretation from FAA's legal staff). A pilot should not file an IFR flight through a TFR. If they did and that flight violated the TFR, they are subject to enforcement action.

From an Air Traffic Quality Assurance standpoint, a controller should not allow an IFR or VFR flight that they are working to fly though a TFR. If they did, they would be subject to an Operational Deviation. However, looking at the totality of the circumstances: It is the pilot-in-command's (PIC's) duty to know exactly where the airspace is, just as it is ATC's responsibility to know where the airspace is. If ATC gave the pilot a vector that was going to take the aircraft right into the TFR and the pilot did not question the controller (just as if s/he would if being vectored into an area of known thunderstorms) then it is still the final responsibility of the pilot to question the clearance, just as it would be ATC's responsibility to question a pilot who wanted to fly directly through a TFR. Luckily, we are not aware of any instance where a controller let an IFR aircraft fly into a TFR. However, we are aware of many cases where pilots filed flights directly through TFRs and thought that ATC would vector them around, but instead, the pilot departed VFR expecting to pick up an IFR clearance in the air. While waiting for ATC to respond and issue a clearance the pilot flew through the TFR. In those cases, FAA suspended pilot certificates from 30 to 150 days.

There is no question that it is bad operating practice to file an IFR flight through a TFR. During flight planning, pilots should avoid TFRs. Arguably, to deliberately file a flight plan through a known TFR, in and of itself, would be a violation of 14 CFR 91.103.

Hope this helps!

Heidi J. Williams

Manager

Air Traffic, Regulatory & Certification Policy

Draw your own conclusions. I guess the only positive bit of news in the waffling back and forth statement above is that I was not right in my argument, but by golly, neither was I wrong. So there! In the meantime, I'll take a peek at the TFRs, but won't admit it to the FSS controller, when I call Lansing.

FMI: www.twinbonanza.com