Can you bust a TFR while operating under IFR?

Question

Is it possible for the pilot to be held responsible for violating a Temporary Flight Restriction if the controller makes a mistake while you are operating under an Instrument flight plan (ie: does not deviate you around it, or allows you to go through it without clearing you with the responsible body)?

It is a commonly held belief that the pilot is immune from TFRs while under IFR, but I found a forum thread that seems to indicate the opposite, where both the pilot and the controller were at fault and both received a suspension. http://www.studentpilot.com/interact/forum/archive/index.php/t-17212.html

(Bonus: Can anyone find a more official reference for that story, and whether there was any legal followup from AOPA Legal or otherwise?)

Answer 1

This is a letter from AOPA that was published in Aero News Network, based on a query made to the FAA on this very topic.

My interpretation of this is that there is no definitive answer, and that both the pilot and the controller have a responsibility, which may answer the question regarding why both parties were suspended in case described in the OP's post.

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

[emphasis mine]

Answer 2

I think that you are confusing the rules for Restricted airspace and those for TFR's.

Depending on the type of TFR, there are different regulation that cover them, but they are very similar. For instance, Presidential TFR's are governed by the following:

§91.141 Flight restrictions in the proximity of the Presidential and other parties. No person may operate an aircraft over or in the vicinity of any area to be visited or traveled by the President, the Vice President, or other public figures contrary to the restrictions established by the Administrator and published in a Notice to Airmen (NOTAM).

(emphasis mine)

Note that it specifically says that "No person may operate an aircraft...contrary to the restrictions established by the Administrator and published in a Notice to Airmen". Operating IFR does not preclude you from that responsibility.

---

Restricted areas on the other hand are covered by the following regulation:

§91.133 Restricted and prohibited areas. (a) No person may operate an aircraft within a restricted area (designated in part 73) contrary to the restrictions imposed, or within a prohibited area, unless that person has the permission of the using or controlling agency, as appropriate.

(emphasis mine)

If ATC clears you into a restricted area (or even assigns a heading which takes you into it), they have given you the required permission.

Answer 3

Here is a specific example that seems to indicate that pilots can be inside at least some TFRs while under ATC control:

The Seattle Stadiums for both Football and Baseball (Century Link Field and Safeco Stadium) are pretty much right in the approach/departure paths for KBFIs 31R / 31L runways.

During gametimes, there is a Stadium TFR around the stadiums to an altitude of 3,000 AGL.

But plenty of aircraft, both VFR and IFR, continue to go in and out of BFI during game times, under the supervision of BFI controllers. (The airspace is Class D, below Bravo).

I've even seen aircraft maneuver within the TFR (eg. not passing directly through it in a straight line; sometimes circling).

Obviously, these pilots aren't getting busted left-and-right for violating the TFR. As long as they're communicating with the tower, and make their intentions clear, its OK.

I doubt you'll see controllers clear aircraft through most TFRs, such as VIP TFRs. But it is entirely possible you could get cleared through some TFRs.

Answer 4

Here's something that leads me to answer in the affirmative, though unlikely:

If the TFR (such as the VIP restrictions we often see in the USA) prohibits flight training, but you are on an IFR flight plan and the controller clears you through the TFR, did you still break it? (Such would be the case if you were an instrument student.) I'd say that yes, you did, as you failed to comply with the restrictions.

However, would you get busted for this? Probably not, unless something else went wrong and the nature of the operation was revealed. (Of course, to avoid this discrepancy, you could say that the CFI was the PIC, and was getting you out of the TFR so that you could conduct training elsewhere.)