Re: Decent below MDA, Legal?

[Roy Smith]

(Bravo8500) wrote:
> In a recent FAA sponsored seminar that I attended, a retired Tower
> Controller mentioned in his presentation that IMC flight in Class G
> airspace without a clearance was actually legal as long as the
> aircraft and pilot were both instrument qualified.

That's correct.

> After I got home
> that afternoon, I thought to myself that if that were the case, then
> when I'm at MDA on my local uncontrolled airport's NDB approach, and I
> don't see the runway but can see directly underneath me, I could
> legally slip down below MDA to try to bust out.

Nope. The one and only difference between IFR flight in controlled and
uncontrolled airspace is that in uncontrolled (i.e. Class G) airspace,
you won't have an ATC clearance (i.e. 91.173 does not apply). All this
means is that ATC is not providing you with separation services. You
are still IFR, and everything else related to IFR still applies.

91.175 says you have to obey MDA's while making an instrument approach
in instrument conditions. 91.177 says you have to obey minimum
altitudes prescribed in part 97 (which in turn includes all the
published SIAPs by reference). There is nothing in either of those two
sections which says they don't apply in CGAS.

[Steven P. McNicoll]

"Bravo8500" > wrote in message
om...
>
> In a recent FAA sponsored seminar that I attended, a retired Tower
> Controller mentioned in his presentation that IMC flight in Class G
> airspace without a clearance was actually legal as long as the
> aircraft and pilot were both instrument qualified. In other words if I
> wanted to I could take my current IFR rating, hop into a current IFR
> aircraft, and fly all I wanted to in IMC as long as I remained in
> Class G (uncontrolled) airspace.
>

No clearance is required, no clearance is even available, but you still must
adhere to the instrument flight rules.


>
> I had never really thought of being
> able to do this so it was a little shocking to hear. After I got home
> that afternoon, I thought to myself that if that were the case, then
> when I'm at MDA on my local uncontrolled airport's NDB approach, and I
> don't see the runway but can see directly underneath me, I could
> legally slip down below MDA to try to bust out. Why? At MDA, I'm below
> the 700 foot floor of the Class E airspace which puts me in Class G.
> This would be the case at almost all uncontrolled airports that have
> published instrument approaches. Does this sound right?
>

It sounds right as long as you have VFR conditions at the MDA and remain in
VFR conditions to your destination. You can't fly along within 700 feet of
the surface in IMC in Class G airspace, FAR 91.177 still applies in Class G
airspace.

[Greg Esres]

<<In a recent FAA sponsored seminar that I attended, a retired Tower
Controller mentioned in his presentation that IMC flight in Class G
airspace without a clearance was actually legal as long as the
aircraft and pilot were both instrument qualified.
>>

Yes, but not really. The NTSB has ruled such activty as "Careless or
reckless", and violated pilots for it.

[[email protected]]

Greg, where can we view this ruling by the NTSB?
Do you or anyone have references to actual situations where pilots
have been violated using "careless and reckless" due to operating in
imc in uncontrolled airspace?
thanks, Stan
On Mon, 08 Sep 2003 06:06:41 GMT, Greg Esres >
wrote:

><<In a recent FAA sponsored seminar that I attended, a retired Tower
>Controller mentioned in his presentation that IMC flight in Class G
>airspace without a clearance was actually legal as long as the
>aircraft and pilot were both instrument qualified.
>>>
>
>Yes, but not really. The NTSB has ruled such activty as "Careless or
>reckless", and violated pilots for it.
>
>
>

[Roy Smith]

In article >,
wrote:

> Greg, where can we view this ruling by the NTSB?
> Do you or anyone have references to actual situations where pilots
> have been violated using "careless and reckless" due to operating in
> imc in uncontrolled airspace?

The issue is not operating in IMC in uncontrolled airspace. The OP's
question revolved around descending below the MDA on an instrument
approach without having the runway environment in sight. That's illegal.

[John Harper]

Sure, but I think the point here (definitely a "don't try this at
home" but an interesting theoretical point) is that if upon
reaching MDA, still in IMC, you cancel IFR (very quickly!)
then you would still be legal.

Whether this is wise is altogether a different point. However
if it is C&R then logically so is ANY uncontrolled IMC in
class G. Which is fine by me, I find the idea horrifying, even
if it is commonplace in the UK.

John

"Roy Smith" > wrote in message
...
> In article >,
> wrote:
>
> > Greg, where can we view this ruling by the NTSB?
> > Do you or anyone have references to actual situations where pilots
> > have been violated using "careless and reckless" due to operating in
> > imc in uncontrolled airspace?
>
> The issue is not operating in IMC in uncontrolled airspace. The OP's
> question revolved around descending below the MDA on an instrument
> approach without having the runway environment in sight. That's illegal.

[Robert Moore]

"Steven P. McNicoll" wrote
> It sounds right as long as you have VFR conditions at the MDA
> and remain in VFR conditions to your destination. You can't fly
> along within 700 feet of the surface in IMC in Class G airspace,
> FAR 91.177 still applies in Class G airspace.

But with regard to the original question, wouldn't the following
apply:

(a) Operation of aircraft at minimum altitudes. Except when necessary
for takeoff or landing, no person may operate an aircraft under IFR
below --

Bob Moore

[Steven P. McNicoll]

"John Harper" > wrote in message
news:1063025978.731057@sj-nntpcache-3...
>
> Sure, but I think the point here (definitely a "don't try this at
> home" but an interesting theoretical point) is that if upon
> reaching MDA, still in IMC, you cancel IFR (very quickly!)
> then you would still be legal.
>

It wouldn't be legal if the Class E floor is 700 AGL, as I believe it was in
the scenario provided here. The FARs still apply in Class G airspace,
including the one on minimum IFR altitudes. Ya gotta be at least 1000 feet
above the highest obstacle within 4 miles, and ya can't do that where
controlled airspace begins at 700 feet above the ground.

[Greg Esres]

<<Greg, where can we view this ruling by the NTSB?>>

There is a website that has either all or a bunch of NTSB rulings. I
think there's a link from the FAA website or from the NTSB site, I
forget.

The case I have saved on my hard drive is Administrator vs. Murphy,
NTSB Order No. EA-3935, dated July 20, 1993.

It makes reference, however, to an earlier decision, Administrator
v. Vance, 5 NTSB 1037 (1986),

[Steven P. McNicoll]

"Robert Moore" > wrote in message
. 6...
>
> But with regard to the original question, wouldn't the following
> apply:
>
> (a) Operation of aircraft at minimum altitudes. Except when necessary
> for takeoff or landing, no person may operate an aircraft under IFR
> below --
>

I should have been more clear. You'd have to cancel IFR upon reaching VMC
at the MDA and continue VFR to your destination.

[Robert Moore]

(Bravo8500) wrote in
> MDA on my local uncontrolled airport's NDB approach, and I don't
> see the runway but can see directly underneath me, I could
> legally slip down below MDA to try to bust out. Why? At MDA, I'm
> below the 700 foot floor of the Class E airspace which puts me
> in Class G. This would be the case at almost all uncontrolled
> airports that have published instrument approaches. Does this
> sound right?


I think that this reg answers your question.

Section 91.175: Takeoff and landing under IFR.
(a) Instrument approaches to civil airports.

Unless otherwise authorized by the Administrator, when an
instrument letdown to a civil airport is necessary, each person
operating an aircraft, except a military aircraft of the United
States, shall use a standard instrument approach procedure
prescribed for the airport in part 97 of this chapter.

(b) Authorized DH or MDA. For the purpose of this section, when the
approach procedure being used provides for and requires the use of
a DH or MDA, the authorized DH or MDA is the highest of the
following:

(1) The DH or MDA prescribed by the approach procedure.

(2) The DH or MDA prescribed for the pilot in command.

(3) The DH or MDA for which the aircraft is equipped.

(c) Operation below DH or MDA. Where a DH or MDA is applicable, no
pilot may operate an aircraft, except a military aircraft of the
United States, at any airport below the authorized MDA or continue
an approach below the authorized DH unless --

(1) The aircraft is continuously in a position from which a descent
to a landing on the intended runway can be made at a normal rate of
descent using normal maneuvers, and for operations conducted under
part 121 or part 135 unless that descent rate will allow touchdown
to occur within the touchdown zone of the runway of intended
landing;

(2) The flight visibility is not less than the visibility
prescribed in the standard instrument approach being used; and

(3) Except for a Category II or Category III approach where any
necessary visual reference requirements are specified by the
Administrator, at least one of the following visual references for
the intended runway is distinctly visible and identifiable to the
pilot:

Bob Moore

[Bravo8500]

Good answers, I think my thinking is recalibrated. Just because the
airspace is uncontrolled doesn't mean anything goes - in other words
the rules still apply, the only difference being is that you're not
operating under a clearance. Thanks!

Bravo8500

[Teacherjh]

>>
if upon
reaching MDA, still in IMC, you cancel IFR (very quickly!)
then you would still be legal.
>>

No.

In uncontrolled airspace, I believe you still must be on an IFR flight plan to
operate IFR. You just don't need a "clearance" since no separation is
provided.

I'm away from my FARs right now; I could be wrong (and will no doubt discover
it quickly if so :)

Jose

(for Email, make the obvious changes in my address)

[Steven P. McNicoll]

"Teacherjh" > wrote in message
...
> >>
> if upon
> reaching MDA, still in IMC, you cancel IFR (very quickly!)
> then you would still be legal.
> >>
>
> No.
>
> In uncontrolled airspace, I believe you still must be on an IFR flight
plan to
> operate IFR. You just don't need a "clearance" since no separation is
> provided.
>

No flight plan is required to operate IFR in Class G airspace. You can't do
what is suggested here, but not for lack of a flight plan.


§ 91.173 ATC clearance and flight plan required.

No person may operate an aircraft in controlled airspace under IFR unless
that person has --

(a) Filed an IFR flight plan; and

(b) Received an appropriate ATC clearance.

[Ron Natalie]

"Teacherjh" > wrote in message ...

> In uncontrolled airspace, I believe you still must be on an IFR flight plan to
> operate IFR.

Untrue. No plan or clearance is requred.

But you are still IFR (as others have pointed out) and the rules for minimum altitudes
(either in general or on approaches) still apply.

91.173 ATC clearance and flight plan required.
No person may operate an aircraft in controlled airspace under IFR unless that person has -
(a) Filed an IFR flight plan; and
(b) Received an appropriate ATC clearance.

[Greg Esres]

<<Huh?? What are you reading? The FARs are pretty clear that IFR
flight in class G is legal. >>

I'm reading NTSB reports, dude. ;-)

<<How could the NTSB say something that is clearly
explicitly allowed by the FAA is careless.>>

It's not expressly allowed, it's just not expressly forbidden.

I don't have a strong opinion either for or against their ruling.

[Craig Prouse]

"Greg Esres" wrote:

>> How could the NTSB say something that is clearly
>> explicitly allowed by the FAA is careless.

> It's not expressly allowed, it's just not expressly forbidden.
>
> I don't have a strong opinion either for or against their ruling.

If we consider the process carefully, it's really the FAA which makes the
rules and the FAA which enforces the rules. The NTSB is the body to which
we might appeal the FAA's less defensible enforcement actions, but they're
pretty much a rubber stamp for the will of the FAA.

If someone got violated for flying IFR in Class G airspace without a
clearance, it's the FAA that deemed it a violation. The NTSB simply failed
to fight about it with the FAA. The distinction is pedantic, but also
telling.

[Ron Natalie]

"Robert M. Gary" > wrote in message om...

> >
> > Yes, but not really. The NTSB has ruled such activty as "Careless or
> > reckless", and violated pilots for it.
>
> Huh?? What are you reading?

I believe that was an FAA determination. I've never seen the NTSB make a
determination of "careless and reckless" in a cause. Usually they're coded
things like "Failure to maintain separation with Terrain -- pilot in command"
regardless of how bone headed the pilot was when he hit the ground.

[Greg Esres]

<<The distinction is pedantic, but also telling.>>

Actually, I think that's an interesting point. You're right of
course, but why doesn't the FAA just go ahead and make it a FAR, if
they feel that strongly about it?

There is effectively a dual rule-making process, but one's relatively
out in the open, the other kinda hidden.

[Greg Esres]

<<I believe that was an FAA determination. I've never seen the NTSB
make a determination of "careless and reckless" in a cause. >>

The ruling was not in an accident case, but for a violation. Seems
clear that the Board ruled the action "careless or reckless", though
obviously the charge was initiated by the FAA. An excerpt:

-------------<snip>---------------
In dismissing the 91.155(a) charge and affirming a 90-day
suspension, the law judge relied on our decision in Administrator
v. Vance, 5 NTSB 1037 (1986), wherein we held that an instrument-rated
pilot's takeoff -- without an ATC clearance -- into
uncontrolled airspace in instrument meteorological conditions
(IMC) was technically legal under the predecessor section to
section 91.155(a), but was nonetheless careless, in violation of
the predecessor to section 91.13(a).
-------------<snip>---------------

[Andrew Gideon]

Greg Esres wrote:

> -------------<snip>---------------
> In dismissing the 91.155(a) charge and affirming a 90-day
> suspension, the law judge relied on our decision in Administrator
> v. Vance, 5 NTSB 1037 (1986), wherein we held that an instrument-rated
> pilot's takeoff -- without an ATC clearance -- into
> uncontrolled airspace in instrument meteorological conditions
> (IMC) was technically legal under the predecessor section to
> section 91.155(a), but was nonetheless careless, in violation of
> the predecessor to section 91.13(a).
> -------------<snip>---------------

This has some interesting implications. Obviously, what's legal and what's
safe are not the same. But how is "safe" determined? A take-off at full
gross on a runway with *just* enough room to get off is legal. Is it safe?
More importantly, could one be cited for "careless and reckless" for doing
so?

My concern is that this can be used rather arbitrarily.

- Andrew

[[email protected]]

So does this mean all take offs without an atc clearance into
unconttolled airspace in imc can expect "careless" operation?
Anyone?

Stan
On Thu, 11 Sep 2003 22:21:47 -0400, Andrew Gideon
> wrote:

>Greg Esres wrote:
>
>> -------------<snip>---------------
>> In dismissing the 91.155(a) charge and affirming a 90-day
>> suspension, the law judge relied on our decision in Administrator
>> v. Vance, 5 NTSB 1037 (1986), wherein we held that an instrument-rated
>> pilot's takeoff -- without an ATC clearance -- into
>> uncontrolled airspace in instrument meteorological conditions
>> (IMC) was technically legal under the predecessor section to
>> section 91.155(a), but was nonetheless careless, in violation of
>> the predecessor to section 91.13(a).
>> -------------<snip>---------------
>
>This has some interesting implications. Obviously, what's legal and what's
>safe are not the same. But how is "safe" determined? A take-off at full
>gross on a runway with *just* enough room to get off is legal. Is it safe?
>More importantly, could one be cited for "careless and reckless" for doing
>so?
>
>My concern is that this can be used rather arbitrarily.
>
> - Andrew

[David Brooks]

"Steven P. McNicoll" > wrote in message
nk.net...
>
> "Greg Esres" > wrote in message
> ...
> >
> > There is a website that has either all or a bunch of NTSB rulings. I
> > think there's a link from the FAA website or from the NTSB site, I
> > forget.
> >
> > The case I have saved on my hard drive is Administrator vs. Murphy,
> > NTSB Order No. EA-3935, dated July 20, 1993.
> >
>
> http://www.ntsb.gov/alj/O_n_O/docs/aviation/3935.PDF
>
> Interesting case. Apparently they were going after a 91.155(a) violation
> only as it applied to uncontrolled airspace. The guy busted VFR minimums
> when he entered controlled airspace at 700 AGL. That's just 500 feet
above
> the clouds he reported breaking out of at 200 AGL, but the VFR minimum is
> 1000 feet above clouds.

Claim is that it's careless and reckless to fly IMC without a clearance in
Class G (even though it is "technically" legal), because you don't know who
might be out there flying on an ATC plan.

Surely, by the same token it's equally careless and reckless to coordinate a
release with ATC, fly up through Class G, and enter controlled airspace,
because you don't know who might be out there flying legally under the floor
of controlled airspace.

If you look at the text from the bottom of page 5/top of page 6, the witness
(Smith) just about says as much.

-- David Brooks

[Ron Natalie]

"David Brooks" > wrote in message ...
> "Steven P. McNicoll" > wrote in message
> Surely, by the same token it's equally careless and reckless to coordinate a
> release with ATC, fly up through Class G, and enter controlled airspace,
> because you don't know who might be out there flying legally under the floor
> of controlled airspace.

And ATC won't issue you any sort of clearance that covers the portion of flight
through the class G airspace anyhow. Absent surface area controlled airspace,
Steve, what is ATC's requirements for separating arrivals and departures that
have dropped below (or have not yet entered) the controlled airspace?

[Steven P. McNicoll]

"David Brooks" > wrote in message
...
>
> Claim is that it's careless and reckless to fly IMC without a clearance in
> Class G (even though it is "technically" legal), because you don't know
who
> might be out there flying on an ATC plan.
>
> Surely, by the same token it's equally careless and reckless to coordinate
a
> release with ATC, fly up through Class G, and enter controlled airspace,
> because you don't know who might be out there flying legally under the
floor
> of controlled airspace.
>
> If you look at the text from the bottom of page 5/top of page 6, the
witness
> (Smith) just about says as much.
>

I understand all that. But there were initially two violations, careless
and reckless and busting VFR minimums. The minimums bust was dropped, even
though it was established that he did bust minimums.

[Steven P. McNicoll]

"Ron Natalie" > wrote in message
m...
>
> And ATC won't issue you any sort of clearance that covers the portion of
flight
> through the class G airspace anyhow. Absent surface area controlled
airspace,
> Steve, what is ATC's requirements for separating arrivals and departures
that
> have dropped below (or have not yet entered) the controlled airspace?
>

Simple. Only one operation gets a clearance.

[David Megginson]

writes:

> So does this mean all take offs without an atc clearance into
> unconttolled airspace in imc can expect "careless" operation?

Well, not up here, anyway. We even have the default transponder code
1000 for uncontrolled IFR, corresponding to the default 1200 VFR code.
I generally fly from bigger airports, but I understand that at smaller
ones its common to take off into IMC squawking 1000 (in class G) until
you're high enough to talk to an ATC unit, then to pick up your
clearance.

Most of the Canadian north is covered by low-level air routes, where
you're uncontrolled anywhere below class A. That's where all the
standard procedures -- standard altitudes for direction of flight,
reporting over every navaid with ETA for the next one, etc., actually
matter. Again, I have no personal experience in that -- the parts of
Canada I fly in have fairly dense radar coverage, just like the
U.S. -- but many northern pilots get old and retire flying everything
from bush planes to 727s in those conditions.

Uncontrolled IFR must exist in Alaska as well -- I find it difficult
to believe that every little airstrip has radar and radio coverage.


All the best,


David

[Tim Hogard]

Ron Natalie ) wrote:
:
: And ATC won't issue you any sort of clearance that covers the portion of flight
: through the class G airspace anyhow. Absent surface area controlled airspace,
: Steve, what is ATC's requirements for separating arrivals and departures that
: have dropped below (or have not yet entered) the controlled airspace?
:

One other bit that none have mentioned in this thread is someone
else could be operating in VFR in almost the same area.

-tim
http://web.abnormal.com

[David Megginson]

(Tim Hogard) writes:

> One other bit that none have mentioned in this thread is someone
> else could be operating in VFR in almost the same area.

In theory, if they're legally VFR you should be able to see them in
lots of time; in practice, unfortunately, that does not always work
out (think 1 SM visibility in haze flying towards the sun). While ATC
is not responsible for separation in class G, I have found so far that
they'll give me a last advisory as far as their radar will allow,
along the lines of

"No traffic visible in the circuit."

or

"There's VFR traffic approaching the airport from the east, 2500 ft
unconfirmed. You're about three minutes ahead of him."

etc.


All the best,


David

[David Megginson]

"Steven P. McNicoll" > writes:

>> In theory, if they're legally VFR you should be able to see them in
>> lots of time; in practice, unfortunately, that does not always work
>> out (think 1 SM visibility in haze flying towards the sun).
>
> Think cloud clearance. An IFR aircraft on an SIAP can emerge from
> the cloud base where a VFR aircraft is operating, quite legally,
> just clear of clouds. How much time is there to spot the traffic in
> that situation?

That's another good example -- I assume that your rules are the same
as ours, and that in Class G VFR you need to be 500 ft below the
clouds above 1000 ft AGL, but only clear of cloud below that.

The worse situation in that case would be a low-wing plane coming out
of the clouds IFR right on top of a high-wing plane that's VFR
underneath -- there's not really much of a chance for either to see
the other.

In Canada, many airports too small for a control tower are designated
MF (Mandatory Frequency), so that everyone is required to be talking
on the radio on the same frequency. Still, some very small ones can
have an IAP without an MF, so you cannot even be sure that the radio
calls will do any good.


All the best,


David

[Steven P. McNicoll]

"David Megginson" > wrote in message
...
>
> That's another good example -- I assume that your rules are the same
> as ours, and that in Class G VFR you need to be 500 ft below the
> clouds above 1000 ft AGL, but only clear of cloud below that.
>

In the US, VFR minimums in Class G airspace, 1,200 feet or less above the
surface, during the day, or at night if the airplane is operated within 1/2
mile of the runway, are 1 statute mile visibility and clear of clouds.


>
> The worse situation in that case would be a low-wing plane coming out
> of the clouds IFR right on top of a high-wing plane that's VFR
> underneath -- there's not really much of a chance for either to see
> the other.
>

I don't think the configurations will make much of a difference when an IFR
airplane emerges from a cloud at virtually the same point a VFR airplane is
operating.

[Robert Moore]

"Steven P. McNicoll" wrote
> In the US, VFR minimums in Class G airspace, 1,200 feet or less
> above the surface, during the day, or at night if the airplane
> is operated within 1/2 mile of the runway, are 1 statute mile
> visibility and clear of clouds.

The 1 mile visibility applies at night, but during the day, there
is no visibility requirement, just clear of cloud when operating
within 1/2 mile of the runway.

Section 91.155: Basic VFR weather minimums
(2) Airplane. When the visibility is less than 3 statute miles but
not less than 1 statute mile during night hours, an airplane may be
operated clear of clouds if operated in an airport traffic pattern
within one-half mile of the runway.

Bob Moore

[Steven P. McNicoll]

"Robert Moore" > wrote in message
. 6...
>
> The 1 mile visibility applies at night, but during the day, there
> is no visibility requirement, just clear of cloud when operating
> within 1/2 mile of the runway.
>
> Section 91.155: Basic VFR weather minimums
> (2) Airplane. When the visibility is less than 3 statute miles but
> not less than 1 statute mile during night hours, an airplane may be
> operated clear of clouds if operated in an airport traffic pattern
> within one-half mile of the runway.
>

Only a helicopter can operate VFR with less than one statute mile
visibility. The visibility minimum in Class G airspace below 1,200 AGL for
airplanes during the day is one statute mile. The visibility minimum in
Class G airspace below 1,200 AGL at night for airplanes is three statute
miles, except when in an airport traffic pattern within one-half mile of the
runway, where it is one statute mile.

[Robert Moore]

Robert Moore wrote
> Are you inferring that I can't read?

Rereading it, I can see where it would apply only to
airplanes at night. Sorry....:-)

Bob Moore

[Gary L. Drescher]

"Robert Moore" > wrote in message
. 6...
> Rereading it, I can see where it would apply only to
> airplanes at night. Sorry....:-)

You're not the only one confused by 91.155b2. The FAA got it wrong too. As
they wrote it, if you're in the pattern at night in class G, you can fly
right next to the clouds if the visibility is *less* than 3 miles; but if
the visibility is 3 miles or *greater*, you have to maintain the usual
500'-1000'-2000' distance from the clouds. Presumably, that's not what the
FAA meant, but it's what they wrote.

--Gary

[Steven P. McNicoll]

"Robert Moore" > wrote in message
. 6...
>
> Are you inferring that I can't read?
>

If I was to suggest to you that you couldn't read I'd be implying, it's you
that would be inferring. I'm just restating the requlatory requirements.

[[email protected]]

wrote:

>
>So does this mean all take offs without an atc clearance into
>unconttolled airspace in imc can expect "careless" operation?
>Anyone?
>
>Stan

No it doesn't even in the USA. I haven't read this report recently, but I remember hearing about it or a similar one some time ago. The guy got busted not just because he flew IFR in class G without a clearance (and, as someone mentioned, there is not choice--you can't get a clearance in class G), but because his flight took him into class E airspace and he had no good way of ensuring that portion of the flight would be VFR.

In other words, if you've got class G airspace up to 14,500 feet, you're fine, but taking off into IMC without a clearance when class G airspace is only 700 feet thick is careless and reckless. So he should have gotten an IFR clearance for that portion of the flight above 700 ft AGL. Since you can't go cruising around IFR less than 1000 AGL, you really have no choice. That, I believe, was the problem.

[Steven P. McNicoll]

> wrote in message ...
>
> No it doesn't even in the USA. I haven't read this report recently, but I
> remember hearing about it or a similar one some time ago. The guy got
> busted not just because he flew IFR in class G without a clearance (and,
as
> someone mentioned, there is not choice--you can't get a clearance in class
> G), but because his flight took him into class E airspace and he had no
good
> way of ensuring that portion of the flight would be VFR.
>
> In other words, if you've got class G airspace up to 14,500 feet, you're
> fine, but taking off into IMC without a clearance when class G airspace is
> only 700 feet thick is careless and reckless. So he should have gotten an
> IFR clearance for that portion of the flight above 700 ft AGL. Since you
> can't go cruising around IFR less than 1000 AGL, you really have no
choice.
> That, I believe, was the problem.
>

I think the wrong charge was thrown out. It reads like they nailed him with
careless and reckless because there was a feeling that he had been very,
very bad but there was nothing else to pin on him. Departing in IMC in
Class G airspace without a clearance was not a violation, he broke out of
the clouds at 200 AGL and was then in VMC for Class G airspace. He was
fine, legally, as long as he didn't climb into controlled airspace. As soon
as he entered Class E airspace at 700 AGL he was operating in controlled
airspace in IMC without an IFR clearance because he was only 500 feet above
clouds where the minimum cloud clearance is 1000 feet above.

[Greg Esres]

<<Departing in IMC in Class G airspace without a clearance was not a
violation, >>

That clearly contradicts the NTSB ruling.

<<he broke out of the clouds at 200 AGL >>

Where did you get that info? It's not in the ruling that I have. It
just says he broke out "well before" 700 AGL.

<<He was fine, legally, as long as he didn't climb into controlled
airspace. >>

Not according to the NTSB.

<<he was only 500 feet above clouds where the minimum cloud clearance
is 1000 feet above.>>

That was not mentioned at all in the document I have. Are you looking
at something else?

[[email protected]]

Greg Esres wrote:

>
><<Departing in IMC in Class G airspace without a clearance was not a
>violation, >>
>
>That clearly contradicts the NTSB ruling.
>

No. The NTSB ruling states that IFR in class G without a clearance is legal. That, in itself, is not wrong. What was wrong was the circumstances under which he did it. He was at an airport with only 700 ft of class G above it and with airplanes operating IFR in and out of the airport at the time he departed. That makes him careless and reckless even though there is no FAR that specifically prohibits exactly what he did.

I stand by my previous statement that if you have a thick layer of class G airspace above the airport that you can legally operate IFR within (1000 or 2000 ft above terrain and even cruising altitudes westbound, odd eastbound, etc....), then you're good to go.

Now, an interesting followup to this is can you get "IFR flight following" if ATC radar can see you? And, as there is in Canada, is there an uncontrolled IFR standard squawk code analogous to the 1200 VFR code?

>
>That was not mentioned at all in the document I have. Are you looking
>at something else?
>

Remember, the NTSB ruling is only an appeal ruling written by a lawyer. There were tons of documents on this case that the FAA put together to go after this guy. And documents put together by the pilot's defense as well. I think I read a long article about it on AVWEB about a year ago. (No, sorry, I don't have a link handy for any of these).

[Greg Esres]

<<No. The NTSB ruling states that IFR in class G without a clearance
is legal. That, in itself, is not wrong. What was wrong was the
circumstances under which he did it. >>

That's your interpretation, but what the ruling actually said was
"technically legal" under 91.155a and then added a "but" to it, saying
it violated 91.13a. It never said that it was "legal" period, just
under 91.155a.

It did not limit its ruling to when Class E lay above it, even though
that was the circumstance of the particular case.

I'd be interested to see the case of "Administrator v. Vance" where
they originally made the ruling.

[[email protected]]

Greg Esres wrote:

>
><<No. The NTSB ruling states that IFR in class G without a clearance
>is legal. That, in itself, is not wrong. What was wrong was the
>circumstances under which he did it. >>
>
>That's your interpretation, but what the ruling actually said was
>"technically legal" under 91.155a and then added a "but" to it, saying
>it violated 91.13a. It never said that it was "legal" period, just
>under 91.155a.
>
>

True, its my opinion, but you can say that about a Judge's ruling too.

So here's why it is my opinion:

1. You can't get an IFR clearance in uncontrolled airspace. Before the ATC system became so extensive, it was probably common do fly IMC in uncontrolled airspace without a clearance (well, as common as it was to fly IMC to begin with). There is still a lot of airspace that is uncontrolled to 14500 feet in the western states, and probably Alaska.

2. The NTSB's main argument is based on this quote:
"a pilot departing from an uncontrolled field in instrument conditions but without a clearance has no assurance that VFR conditions will prevail when he reaches controlled airpsace."
Let me make an analogy. Say you're driving down a highway. You come to a traffic signal and the light is red. You don't slow down or make any attempt to stop but the light just happens to turn green when you're a foot away from entering the intersection. Now: crossing an intersection when the light is green is perfectly legal. But it was only green because you got lucky, so you could and should be charged with "reckless endangerment" or whatever the term used by traffic cops. Then a Judge might even say that crossing the intersection with a green light is "technically legal" but what you did was reckless and unsafe.

The reason it is a violation of 91.13a is because he was legal due to luck: the clouds happen to clear before he reached controlled airpsace. He could very well have entered controlled airspace and still been in the clouds. Just because he didn't happen to (or says he didn't) can't get him off.

>It did not limit its ruling to when Class E lay above it, even though
>that was the circumstance of the particular case.

This is a ruling on a particular case. That automatically limits it. It is not new law. However it does go at length about how it is unsafe to fly without a clearance. That may be true depending on traffic density in the area.

And also keep in mind that these NTSB guys are not necessarily experts on the ATC system. They investigate pipeline accidents, trains, highways, etc... Hammerschmidt is a pilot (but I don't know if he even has an instrument rating). The other guys can be mechanics, executives from car companies or the railroads or just plain bureaucrats that the President likes. So when they say its unsafe, they're just regurgitating the FAA position on this particular case.

>
>I'd be interested to see the case of "Administrator v. Vance" where
>they originally made the ruling.
>

Post it if you find it. But, from the quotes in this one, it seems that it was a similar circumstance of class E airspace closely overlying the airport. Also, the Administrative Law Judge's ruling probably has more detail on this case as well. The appeal was posted earlier on this thread, but I haven't seen the original ruling.

Think about this (I'm pretty sure I've got this right):

If you choose not to fly IMC without a clearance in class G airspace because its dangerous, thats up to you and not governed by the FAA. But if you take off from an airfield in class G airspace, that's exactly what you are doing. Your clearance begins when you enter controlled airspace and no sooner. That could be 700 feet AGL, 1200 feet AGL, 14,500 feet MSL or anywhere in between. I'm guessing that ATC can give you traffic advisories if they can see you on radar, but they can't issue instructions and are not required to separate you from anyone or anything.

You might feel good getting an ATC clearance, but it provides absolutely no protection while you're in class G airspace. Does this mean you should never depart IFR if controlled airspace is more than 1200 feet above you?

[Ron Natalie]

> wrote in message ...
> The reason it is a violation of 91.13a is because he was legal due to luck: the clouds happen to clear before he reached
> controlled airpsace. He could very well have entered controlled airspace and still been in the clouds. Just because he didn't
happen
> to (or says he didn't) can't get him off.

That's not how I read the opinion. The opinion centered on the possibility that he'd hit IFR traffic in the uncontrolled airspace
who had been operating in or out of the adjacent controlled airspace with a clearance. That the fact that a clearance obtained
for the adjacent controlled airspace would reduce the risk of collision in the adjacent uncontrolled airspace. This is probably
true, but not supported literally by the FARs.

The answer to your interpretation is simple. If you don't have a clearance or VFR conditions before reaching
the controlled airspace boundary, you remain within uncontrolled airspace. It's analogous to being prepared
to slam on the brakes if the light doesn't turn green.

[Steven P. McNicoll]

"Greg Esres" > wrote in message
...
>
> That clearly contradicts the NTSB ruling.
>

How so? The initial decision found takeoff from an uncontrolled airport
into clouds without a clearance was NOT a violation of FAR 91.155(a), so the
NTSB didn't even get a chance to rule on it in this case. The appeal, and
thus the NTSB ruling, was only on the FAR 91.13(a) violation. In upholding
this decision, the NTSB cited an earlier case where it ruled that "a pilot
departing from an uncontrolled field in instrument conditions but without a
clearance has no assurance that VFR conditions will prevail when he reaches
controlled airspace." Obviously, that precedent cannot apply when the
flight does not enter controlled airspace at all, so, by itself, departing
in IMC in Class G airspace would not be a violation.


>
> Where did you get that info? It's not in the ruling that I have. It
> just says he broke out "well before" 700 AGL.
>

I got it from NTSB Order No. EA-3935, you can examine it here:

http://www.ntsb.gov/alj/O_n_O/docs/aviation/3935.PDF

It states witnesses testified that the ceiling was 100 to 200 feet, and that
the respondent admitted there were clouds at 200 feet.


>
> Not according to the NTSB.
>

Oh? What did the NTSB say about flights that depart uncontrolled fields in
instrument conditions without a clearance that never enter controlled
airspace?


>
> That was not mentioned at all in the document I have. Are you looking
> at something else?
>

I have no idea what you're looking at, as I said, I'm looking at NTSB Order
No. EA-3935. As I said previously, the pilot stated there were clouds at
200 feet, controlled airspace at Robinson begins at 700 feet, so his
statement puts him 500 feet above the clouds when he entered controlled
airspace.

What I find most curious about this incident is that the pilot was found not
to be in violation of FAR 91.155(a) when his own statement obviously
indicates that he was.

[Steven P. McNicoll]

> wrote in message ...
>
> I stand by my previous statement that if you have a thick layer of class G
> airspace above the airport that you can legally operate IFR within (1000
or
> 2000 ft above terrain and even cruising altitudes westbound, odd
eastbound,
> etc....), then you're good to go.
>

Well, you can't legally do that. FAR 91.177 requires a minimum altitude of
1000 feet (2000 feet in a designated mountainous area) above the highest
obstacle within a horizontal distance of four miles of the course to be
flown. If you're within 1000/2000 feet of terrain you're obviously too low.


>
> Now, an interesting followup to this is can you get "IFR flight following"
> if ATC radar can see you?
>

Well, to receive flight following requires radar contact and radio
communications. In the US, areas where ATC has good radar coverage and
radio communications tend to have controlled airspace as well so that ATC
can separate IFR traffic. While there are certainly areas where one can
legally operate IFR without a clearance, I doubt these areas have good radar
coverage and direct radio communications with ATC.


>
> And, as there is in Canada, is there an uncontrolled IFR standard squawk
> code analogous to the 1200 VFR code?
>

No. With the way we designate airspace in the US there'd be no point in it.

[Steven P. McNicoll]

"Greg Esres" > wrote in message
...
>
> That's your interpretation, but what the ruling actually said was
> "technically legal" under 91.155a and then added a "but" to it, saying
> it violated 91.13a. It never said that it was "legal" period, just
> under 91.155a.
>
> It did not limit its ruling to when Class E lay above it, even though
> that was the circumstance of the particular case.
>

In this ruling the NTSB said "a pilot departing from an uncontrolled field
in
instrument conditions but without a clearance has no assurance that VFR
conditions will prevail when he reaches controlled airspace." The NTSB
said nothing about departing from an uncontrolled field in instrument
conditions but without a clearance where the flight does not enter
controlled
airspace.


>
> I'd be interested to see the case of "Administrator v. Vance" where
> they originally made the ruling.
>

As would I, but that ruling does not appear to be available online.

[Steven P. McNicoll]

> wrote in message ...
>
> The reason it is a violation of 91.13a is because he was legal due to
> luck: the clouds happen to clear before he reached controlled airpsace.
> He could very well have entered controlled airspace and still been in the
> clouds. Just because he didn't happen to (or says he didn't) can't get
him
> off.
>

But he wasn't legal due to the clouds clearing before he entered controlled
airspace. Clear of clouds is the standard in Class G airspace, but the
minimum cloud clearance in Class E airspace is 500' below, 1000' above,
2000' horizontally. You simply cannot operate VFR in controlled airspace
less than 1000 feet above a cloud deck, even if that cloud deck itself is in
uncontrolled airspace. Obviously, you cannot climb through a cloud deck and
reach VMC prior to entering controlled airspace where the floor of
controlled airspace is 700 AGL.


>
> You might feel good getting an ATC clearance, but it provides absolutely
> no protection while you're in class G airspace.
>

I can't agree with that. Getting an ATC clearance and release ensures you
won't encounter another IFR aircraft with an ATC clearance while you're in
that Class G airspace.

[Robert Moore]

"Steven P. McNicoll" wrote
> I can't agree with that. Getting an ATC clearance and release
> ensures you won't encounter another IFR aircraft with an ATC
> clearance while you're in that Class G airspace.

I wonder why he just didn't get a short range IFR to VMC
conditions on top and then cancel?

Bob Moore

[Ron Natalie]

"Robert Moore" > wrote in message . 8...
> "Steven P. McNicoll" wrote
> > I can't agree with that. Getting an ATC clearance and release
> > ensures you won't encounter another IFR aircraft with an ATC
> > clearance while you're in that Class G airspace.
>
> I wonder why he just didn't get a short range IFR to VMC
> conditions on top and then cancel?
>
Because the departure delay for that wouldn't likely have been any shorter
doing that than just getting an IFR clearance for his full route.
..

[Robert Moore]

"Ron Natalie" wrote
> Because the departure delay for that wouldn't likely have been
> any shorter doing that than just getting an IFR clearance for
> his full route. .

As I understood it, the delay was due to landing conditions at
the destination, not for takeoff.

Bob

[Steven P. McNicoll]

"Robert Moore" > wrote in message
. 8...
>
> I wonder why he just didn't get a short range IFR to VMC
> conditions on top and then cancel?
>

I had similar thoughts, why didn't he just change his destination to another
airport in the Indianapolis area?

[Steven P. McNicoll]

"Ron Natalie" > wrote in message
m...
>
> Because the departure delay for that wouldn't likely have been any shorter
> doing that than just getting an IFR clearance for his full route.
>

The NTSB report states the clearance request was denied because the
Indianapolis airport was below IFR minimums and was not accepting any
additional traffic.

[[email protected]]

Steven P. McNicoll wrote:

>
>It states witnesses testified that the ceiling was 100 to 200 feet, and that
>the respondent admitted there were clouds at 200 feet.
>

Well, that means that the bases were at 100 to 200 feet. The tops were not stated in the ruling. So he was at best 500 feet away from clouds upon entering Class E airspace, and most likely much less.

>
>What I find most curious about this incident is that the pilot was found not
>to be in violation of FAR 91.155(a) when his own statement obviously
>indicates that he was.
>

My guess at this is that the violation of cloud clearances is hard to prove in court and that it is a small violation that the FAA gave up on. They wanted to get him for being careless and reckless. That was their main purpose, and they weren't interested in a piddly little charge getting in the way.

Its a bit like my driving analogy from a few posts ago about running a red light. If you were speeding by 5 mph when you ran a red light that charge would be secondary and likely not even bothered with or dropped.

So the charge was let go (you'd have to go into the original proceedings to figure out exactly how and why). But, yes, he did violate FAR 91.155, and if the FAA wanted to spend resources on it they probably could have convinced the Judge to agree.

[[email protected]]

Ron Natalie wrote:

>
>The answer to your interpretation is simple. If you don't have a clearance or VFR conditions before reaching
>the controlled airspace boundary, you remain within uncontrolled airspace. It's analogous to being prepared
>to slam on the brakes if the light doesn't turn green.
>

But you can't legally remain below 700 ft AGL when IFR. Gotta be at least 1000 feet above anything within four miles or 2000 in mountainous terrain (or something like that).

So you're stuck. Can't climb, can't descend. Every direction is illegal. That makes it careless and reckless.

[[email protected]]

Steven P. McNicoll wrote:

>
>
> wrote in message ...
>>
>> The reason it is a violation of 91.13a is because he was legal due to
>> luck: the clouds happen to clear before he reached controlled airpsace.
>> He could very well have entered controlled airspace and still been in the
>> clouds. Just because he didn't happen to (or says he didn't) can't get
>him
>> off.
>>
>
>But he wasn't legal due to the clouds clearing before he entered controlled
>airspace.

You're right. But they let him off on that charge. I was trying to explain why this incident was careless and reckless even though it would have been okay had the class G airspace extended to a higher altitude (several thousand feet at least).

>> You might feel good getting an ATC clearance, but it provides absolutely
>> no protection while you're in class G airspace.
>>
>
>I can't agree with that. Getting an ATC clearance and release ensures you
>won't encounter another IFR aircraft with an ATC clearance while you're in
>that Class G airspace.

Only if that class G airspace is very shallow, as in this case. If you have 10,000 feet of class G airspace to climb through before reaching controlled airspace, it doesn't matter if you get your clearance on the ground or in flight or the day before. Its all the same: no separation within the class G airspace.

Isn't that right? My point was that the NTSB stated that it is safer to take off from an uncontrolled field with a clearance and I think that it is not universally true. Only when class G airspace is shallow.

[[email protected]]

Robert Moore wrote:

>
>"Ron Natalie" wrote
>> Because the departure delay for that wouldn't likely have been
>> any shorter doing that than just getting an IFR clearance for
>> his full route. .
>
>As I understood it, the delay was due to landing conditions at
>the destination, not for takeoff.
>
>Bob

I thought so too, but I don't know where all these airports are situated (so I don't know how delays and reroutings at Indy affect the sector he flew into).

The NTSB ruling mentined some captain and his first officer that witnessed the takeoff and also that this guy took off right after an IFR departure. I assume, from that, that there was a queue of planes waiting for their IFR departures. So this guy cut in line and the people waiting were ****ed and turned him in. Kinda like the impatient drivers out there that weave in and out of traffic.

[Steven P. McNicoll]

> wrote in message ...
>
> Well, that means that the bases were at 100 to 200 feet. The tops were
> not stated in the ruling. So he was at best 500 feet away from clouds
upon
> entering Class E airspace, and most likely much less.
>

I took the witnesses' statement to mean the cloud layer was 100 feet thick,
100 to 200 AGL. That fits with the respondent's statement that there were
clouds at 200 feet and he was in VFR conditions well before he reached
controlled airspace at 700 feet.

The actual altitude and thickness of the cloud layer really doesn't matter.
If the floor of controlled airspace is at 700 AGL and there's a solid cloud
layer between the surface and the start of controlled airspace, then it's
impossible to climb through that layer and be in VFR conditions when you
reach controlled airspace.

[Steven P. McNicoll]

> wrote in message ...
>
> You're right. But they let him off on that charge.
>

I realize that. The question is why did they let him off, given that his
statements indicate he was in violation of it?


>
> Only if that class G airspace is very shallow, as in this case.
>

This is the case I'm talking about.

[Steven P. McNicoll]

> wrote in message ...
>
> But you can't legally remain below 700 ft AGL when IFR. Gotta be at least
> 1000 feet above anything within four miles or 2000 in mountainous terrain
> (or something like that).
>
> So you're stuck. Can't climb, can't descend. Every direction is illegal.
> That makes it careless and reckless.
>

No, you can't legally remain below 700 ft AGL when IFR, but he was not in
IMC when he was below 700 AGL. Remember, he took off under IFR but he was
in VFR conditions well before he entered controlled airspace at 700 AGL.
Once he was above the clouds in Class G airspace all he needed for VFR
operations was one mile visibility and stay clear of clouds.

[Fred E. Pate]

Steven P. McNicoll wrote:

>
>No, you can't legally remain below 700 ft AGL when IFR, but he was not in
>IMC when he was below 700 AGL. Remember, he took off under IFR but he was
>in VFR conditions well before he entered controlled airspace at 700 AGL.
>Once he was above the clouds in Class G airspace all he needed for VFR
>operations was one mile visibility and stay clear of clouds.
>


Yup all true. But the main beef the NTSB had is that he couldn't have known it ahead of time. If you can't ensure that you will be in VFR conditions before 700 ft then it is a careless and reckless operation because if you don't break out then you have no way out.