roncachamp
Final Approach
You said it in message #9.
File IFR when not rated
- Thread starter Luckypants
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You said it in message #9.
So far, that about sums up your contribution to this thread.
Someone else posted the actual interpretation from the FAA. If you have a disagreement with it, posting here isn't going to change it.
JKG
roncachamp
Final Approach
Nonsense.
azure
Final Approach
For the record, the Chief Counsel's answer clearly misstates the "IFR/VFR" technique. "VFR" is placed in the altitude box, not in the remarks, and alerting ATC that you want to proceed VFR is not required. But I seriously doubt that the answer would have been different if stated correctly.
As you say, there are lots of questions that most of us really don't want to hear the answer to. This is certainly one of them.
roncachamp
Final Approach
I understand the question, because I wrote the question, and her reply directly addressed it.
JKG
alaskaflyer
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So lets get back to the op:
In large swaths of uncontrolled airspace, no, because you aren't flying IFR unless you are in IMC which is of course illegal unless you are properly rated, current and properly equipped, and you couldn't file IFR even if you wanted to.
I had to say that having flown in Alaska for a while
In controlled airspace, you can file anything you want short of attempting fraud or harassing the FAA
But as PIC you cannot fly IFR without a clearance regardless of meteorological conditions and you cannot legally accept an IFR clearance without being properly rated, current and equipped. However, you CAN practice some IFR procedures while simultaneously VFR and VMC.
Since I am myself a sometimes-nitpicker, let the nitpicking begin!
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roncachamp
Final Approach
To know that would require you to post the letter you sent to the FAA.
I specifically said, with regard to filing flight plans, that "the student can file the flight plan, but the CFI's name must go in the PIC block."
The OP asked about filing IFR for a solo flight in VMC. The reasonable assumption in such a scenario is that the solo (unqualified) pilot would file the flight plan with himself as PIC.
I further clarified the interpretation in posts #14 and #22.
JKG
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azure
Final Approach
In that case, you were the one who misstated the technique you were asking about.
roncachamp
Final Approach
You better go back and re-read what you wrote. Carefully this time.
Ah, so now you guys are so smart that you know what I was asking about better than I do. I give up.
JKG
roncachamp
Final Approach
Actually, that does appear to be the case.
roncachamp
Final Approach
Incorrect.
azure
Final Approach
If you weren't asking about the technique I mentioned, why did you quote my description of that technique in post #35 where you said that your question was about "the IFR/VFR technique"? Is there another "IFR/VFR technique" that I'm not aware of?
To quote my question from the letter of interpretation, "Specifically, you ask whether a certificated pilot, who does not hold an instrument rating, may file an IFR flight plan using a VFR cruising altitude with the notation 'VFR' in the remarks section of the flight plan, provided the pilot plans to alert ATC that the operation will be conducted only under VFR flight following."
In paragraph 3 of the letter, the counsel summarizes the requirements for filing an IFR flight plan.
In paragraph 4, the letter states that, "Although there is no specific regulation prohibiting a certificated pilot who does not hold an instrument rating from filing an IFR flight plan, the FAA considers filing an IFR flight plan to be a clear intent by the person listed as pilot on the flight plan to conduct operations under IFR."
In paragraph 6, the letter states that, "By noting 'IFR' in Block 1 of the Form 7233-1, the FAA processes the flight plan as a proposed flight under IFR."
My questions are quite clear, and so are the responses provided in the letter.
I'm sorry, but I don't see the "stretch of logic" here. If you don't hold an Instrument rating, and file an IFR flight plan with yourself listed as PIC, the only logical conclusion is that you intend to execute that flight plan and conduct a flight operation under IFR. As the letter (and my previous posts) make clear, the act of filing such a flight plan isn't a violation, but why willingly create a piece of potential evidence against you?
JKG
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azure
Final Approach
What would be the point of filing an IFR flight plan with a VFR cruising altitude and the notation 'VFR' in the remarks section? What does that have to do with the technique I described in post #28, which you quoted in post #35?
To the contrary, if I wasn't IFR legal and filed a flight plan using the technique I described, and the FAA tried to hang me with an "intent to operate IFR", I'm fairly sure that I would have no difficulty whatever in convincing an impartial and open-minded person that I had no such intent.
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RotorAndWing
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To be used as "evidence against you" something would have to trigger an investigation. ATC does not cross check pilot's names on the flight plan against the pilot registration database. FAA Inspectors don't sit around going through flight plans and matching names to ratings either.
The only logical way an event that could be triggered if the pilot (non instrument rated) filed the flight plan then accepted a clearance, and during the flight had a pilot deviation or a ramp inspection, or worse yet an accident.
To get a violation for simply filing a flight plan that one never accepted a clearance for is an incredibly long stretch at best.
Yep.
How is that different than what you described in post #28? If you select "IFR" in block 1, you are filing an IFR flight plan. In the referenced letter of interpretation, the FAA further states that selecting "IFR" in block 1 will cause the flight plan to be processed as a proposed flight under IFR. What am I missing?
That may be true, but it's quite a risk to assume that the individual(s) handling your violation at the FAA would be either impartial or open-minded.
In all of this debate (and previous ones), I still can't understand WHY a non-rated pilot would want to file an IFR flight plan. I've heard the argument that it may be a help to ATC in certain circumstances, but they aren't the ones taking the risk--however small you determine the risk might be.
JKG
Jim Logajan
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Rebecca Macpherson stikes again!
Minor bit of good news is that, as of January, she is no longer with the FAA:
http://m.jonesday.com/faa-assistant-chief-counsel-rebecca-macpherson-to-join-jones-day-as-of-counsel-01-02-2013/
azure
Final Approach
As I understand it, filing IFR with a VFR cruising altitude still generates an IFR strip in the system. Filing something like "VFR/65" in the altitude box generates a VFR strip.
What violation?
I can't answer why a non-rated pilot would want to file a true IFR flight plan. I can only tell you why before I was instrument rated, I filed the way I described several times. It was a convenience to get on a flight plan AND have a squawk code to legally overfly Canadian airspace without having to contact a third party (FSS) to open a VFR flight plan. Taking off from 3W2 or 89D heading north, I want to be legal to cross the border NOW.
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roncachamp
Final Approach
No, the FAA does not state that, Rebecca B. MacPherson states that. A flight plan with "VFR" as the requested altitude will not be processed as an IFR flight plan.
There's no risk at all.
I've posted many times now in this thread stating and re-stating that filing a flight plan is not a violation.
I've also stated that accepting a clearance isn't a violation, despite the fact that it's been cited by others as some type of trigger for one.
As someone who used to fly frequently with VFR flight following, my flights were often mistaken by ATC as IFR operations, despite the fact that I never filed a flight plan of any sort for those flights. On such occasions, I've had ATC, a) attempt to issue me a formal clearance into IMC while outside of Class B airspace; b) ask me if I was IFR; c) request that I maintain an IFR altitude; d) require me to clarify to multiple facilities post-handoff that I was, in fact, not IFR. I have no idea what they were looking at that caused the confusion during those times.
Had some type of deviation occurred under those circumstances, even if it wasn't my fault, and I had filed a flight plan with "IFR" selected in block 1, I would at best have to explain why I filed an IFR flight plan listing myself as pilot when I, a) didn't hold at Instrument rating at the time; and, b) wasn't really conducting an operation under IFR. It isn't hard to imagine that if a controller could accidentally mistake a FF target for IFR, a filed IFR flight plan could be interpreted as an intent to operate under IFR in violation of 61.3(e). If you want to argue that acceptance of a clearance would be a "trigger" in this case, then I would have "triggered" on every flight, since I operate from an airport that lies under Class B airspace. If you want to argue that having been assigned a VFR altitude might bail me out, I've temporarily been assigned VFR altitudes while IFR. If a violation occurs, could I get busted on the flight plan? I don't see how. Could the flight plan be used as evidence that I really intended to operate under IFR? It would be a difficult argument to claim that I knew the operating requirements of FAR 61.3(e), but still selected "IFR" with my name as the listed pilot on the filed flight plan. Why not just avoid the risk altogether? I don't get it.
JKG
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Rebecca B. MacPherson is representing the FAA--and the FAA's position--by issuing a regulatory interpretation on behalf of the Chief Counsel. I'm not aware of any unaffiliated pilots or controllers outside of that office (or senior FAA leadership) who possess a similar level of authority on such matters.
I'm also not in a position to determine whether ANY of the FAA's interpretations accurately reflect actual operating practice, or are right or wrong in any regard, except to say that from a regulatory viewpoint I suspect that pilots and controllers would have an uphill battle arguing against them.
JKG
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azure
Final Approach
Accepting an IFR clearance IS a violation, if you're not legal to act as PIC under IFR. You seemed to be agreeing with us that filing an IFR flight plan isn't a violation.Maybe so, but if you were offered a clearance and refused it, that would seem to be prima facie evidence that you did NOT intend to operate IFR, wouldn't it?
Class B clearance <> IFR clearance.I wouldn't argue that at all. "VFR" in the altitude box isn't the same thing as having a VFR altitude under IFR. It tells the system that the flight will be conducted under VFR.
Neither do I.
If you didn't operate IFR, how could it be used as evidence for anything? If you never accepted an IFR clearance and you were violated for something else, why would the FAA even bring in the fact that box 1 was checked IFR on your flight plan? How would it be relevant to their case?
The only situation I can think of where it MIGHT come in is if you had an accident on take off or shortly afterward before you even called up ATC. But again, it's pretty hard to construe a filed flight plan that tells the system that you will be VFR as evidencing intent to operate IFR.
Not only that, but it would be getting dangerously close to incorporating the concept of thoughtcrime into FAA regulations.
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I was responding to what Azure wrote in the post immediately preceding mine, specifically, "But then a VFR-only pilot who checks the IFR box by accident and files what he thinks is a VFR plan electronically is already guilty of a FAR violation."
I get an error message when I try to open the attachment in post #32, but if the above is really an implication of the Chief Counsel's opinion, then it seems highly theoretical if they are not actually enforcing it.
91.173 is one of the instrument flight rules referred to by the abbreviation "IFR":
Note that those two clauses are joined by an "and," and those two things are not suggestions, they're requirements. In controlled airspace, if both things have not happened, then you are not operating under instrument flight rules.
Therefore, in controlled airspace, in order for a non IFR-qualified PIC to have violated 61.3(e), both 91.173(a) and (b) must be true. 91.173(a) alone is not sufficient to establish that you were operating IFR.
In uncontrolled airspace, an IFR clearance is not required, so I suppose that filing an IFR flight plan could muddy the waters in that situation, but I think the FAA would have to prove that you actually did operate in less than VFR conditions in order to prove a violation of 61.3(e).
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I've had the opposite happen. On an IFR flight, I changed my destination a couple of times due to unexpected weather, and when I checked in on a new frequency near my final destination, the controller asked me if I wanted IFR. I responded, "I am IFR!", and the controller handled me as such. Controllers are human, and the ATC system is not perfect, but I had received an IFR clearance at the beginning of my flight, and I had not canceled IFR, so there was no ambiguity as to my status in fact, as could have been confirmed by playing back the tapes.
Assuming your flight was in controlled airspace, in accordance with the discussion in my last post, I think they would need to produce evidence that you accepted an IFR clearance in order to prove that you were operating under IFR.
Not all clearances are IFR clearances. In addition to the words "cleared to," an IFR clearance must contain a clearance limit, a route assignment, and an altitude assignment. Were you not taught this?
The procedure that Azure is describing has been discussed in an article in IFR Magazine, if I recall correctly. I think it's believed to make things easier for ATC and/or the pilot when you call up requesting VFR advisories. I haven't tried it myself, because the word on various message boards seems to be that it works at some ATC facilities and not others, and I prefer not to introduce potential confusion into my dealings with ATC if I can avoid it.
TMetzinger
Final Approach
You use the instructor's name and information.
roncachamp
Final Approach
Ms. MacPherson states:
"By noting 'IFR' in Block 1 of the Form 7233-1, the FAA processes the flight plan as a proposed flight under IFR."
She's wrong, she clearly has very little knowledge of flight plan processing. The processing of flight plans is not a legal matter, why you would present that question to the office of the Chief Counsel is a mystery to me. When pilots do this they're not even using the paper form, they're filing online. "IFR" is selected as the type of flight plan to route the data to ATC, selecting "VFR" as the type would send it to FSS. "VFR" is entered as the requested altitude, block 7 on the paper form, and ATC treats the flight as a VFR operation.
roncachamp
Final Approach
You're wrong. To accept an IFR clearance as PIC without the required certificates and ratings is a direct violation of FAR 61.3(e). That's a fact.
§ 61.3 Requirement for certificates, ratings, and authorizations.
(e) Instrument rating. No person may act as pilot in command of a civil aircraft under IFR or in weather conditions less than the minimums prescribed for VFR flight unless that person holds:
(1) The appropriate aircraft category, class, type (if required), and instrument rating on that person's pilot certificate for any airplane, helicopter, or powered-lift being flown;
(2) An airline transport pilot certificate with the appropriate aircraft category, class, and type rating (if required) for the aircraft being flown;
(3) For a glider, a pilot certificate with a glider category rating and an airplane instrument rating; or
(4) For an airship, a commercial pilot certificate with a lighter-than-air category rating and airship class rating.
HPNPilot1200
En-Route
How is this thread 3 pages? 
alaskaflyer
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How and when is a "VFR strip" generated for ATC, ever? When you request FF in the air?
roncachamp
Final Approach
Or on the ground. Or when you file online with "IFR" as the type of flight plan and "VFR" as the cruising altitude.
ATC does not have separate Flight Data Processing systems for IFR and VFR flights, it has just the one. The sole difference between an "IFR strip" and a "VFR strip" is in the altitude block. A "VFR strip" will have "VFR" or "VFR/xx", where xx is the numerical VFR altitude in hundreds of feet. An IFR strip will have the actual IFR altitude in hundreds of feet, or "IFR" in the case of an arrival aircraft in terminal ATC facilities, or "OTP" for VFR-on-top, or "xxByy for a block altitude.
A potential problem arises if the pilot seeking flight following files with the actual VFR cruising altitude instead of "VFR" or "VFR/xx". The strip will print with that numerical altitude, the controller may wonder if the pilot is planning VFR or IFR at a strange altitude. If the flight terminates within the airspace delegated to a terminal facility that facility's strip will show "IFR", because when automated Flight Data Processing was being set up some forty years or so ago some moron felt IFR arrivals in terminal facilities should show "IFR" in the altitude block.
alaskaflyer
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Thanks.
snoboy
Pre-takeoff checklist
snoboy
Pre-takeoff checklist
How is this thread 3 pages?
Agreed. There may be a continued debate over the file portion and what happens if you accidently check the wrong item in the IFR/VFR box but Luckypants asked a legit question looking for an answer and the answer is NO. You're not allowed to act as PIC under IFR or in weather less than VFR minimums unless you hold... an instrument rating.