If you’re a VFR pilot, this week’s blog may persuade you that doing clouds is a lot of work –sometimes. Feel free to do something more productive. But if you do clouds, then it might be worth following the twists and turns. It can be tough to make a graceful exit under instrument flight rules. It’s easy when there’s a control tower or a remote communications outlet (RCO) to speak directly with a controller who coordinates the airspace to fit you into the flow of traffic. It’s not so easy when merging into the cloudy skies involves remaining VFR before getting a clearance. Had an interesting question from a friend who needed some clarification when departing his grass strip which has no departure procedure.
“I recently departed my grass strip 12 nm south of (Big Airport) VFR and the controller refused to give me my instrument clearance unless I could visually clear obstacles up to 3500’ msl. Surface elevation around here is 950’ msl. The ceiling was 2000’, so I informed him that I could not maintain visual clearance with obstacles up to 3500’ because I will be in the clouds. He then denied my request for a clearance, even though he had given me a transponder code and had me in radar contact.”
Here is what one of our pilot-controller friends with the National Air Traffic Controllers Association (NATCA) had to say:
I will preface my response with a statement that I am not providing a legal interpretation for the FAA or NATCA.
As the rule is written, unless I know that you can’t provide your own terrain and obstruction clearance until reaching the appropriate altitude, I don’t have to ask. But for the sake of this discussion, let’s assume that I do know or that you have told me.
This is the first step a controller will take in order to issue a clearance below the minimum IFR altitude/minimum vectoring altitude (MIA/MVA):
When a VFR aircraft, operating below the minimum altitude for IFR operations, requests an IFR clearance and you are aware that the pilot is unable to climb in VFR conditions to the minimum IFR altitude:
Notice the bolded text. The next step in the process depends on the answer to the following question:
Before issuing a clearance, ask if the pilot is able to maintain terrain and obstruction clearance during a climb to the minimum IFR altitude.
Again, the bolded text is my emphasis but you will notice there is no mention of maintaining VFR. If you answer “yes,” that tells the controller that you understand that you are responsible for the terrain and obstruction even if you are unable to do this in VFR conditions (ed. note: Bruce’s emphasis underlined). The controller can issue you a clearance PROVIDED no course guidance is included. If the answer is “no,” The controller will instruct you to maintain VFR and ask for your intentions.
Is it safe and legal? It is for the controller provided he/she has complied with the rules in our handbook. As a pilot, if I were to accept the clearance knowing that I have the responsibility to provide my own terrain and obstruction clearance, I would want to be able to see those obstructions OR plot out a course that would provide the required minimum IFR altitude for my route (in a large part of the country, that would be 1,000’ above the highest point 4 nm either side of the planned route). The point being is that unless the pilot is flying a published FAA procedure or the controller is vectoring in an approved Diverse Vectoring Area, the PILOT is responsible to avoid obstructions. The controller cannot accept that responsibility.
Vectoring to avoid obstructions and terrain is not necessarily a discretionary practice…these obstructions must be mapped. Towers that are shown on a sectional aren’t necessarily mapped on a radar map.
An assigned squawk code aids the controller in radar identification, and the AIM advises pilots that just because an aircraft is in radar contact doesn’t transfer the responsibility for terrain and obstruction clearance (ed. note: Bruce’s emphasis underlined).
In your example, I will assume that Class E airspace starts at 700’ agl. A departing aircraft would enter controlled airspace (class E) at 1,650’ msl. A 2,000’ overcast ceiling would put the aircraft 1,300’ below the bases. MVA altitudes are msl, so an MVA of 3,500’ in that area means the pilot would be responsible for terrain and obstruction clearance for 550’ of that climb. Our rules don’t allow for ATC to accept that responsibility. A controller who doesn’t issue the clearance is following agency rules and not avoiding liability. The expectation in this case is that the pilot wouldn’t deviate from required visibility rules.
So, by my understanding, if there’s a DP or ODP—great—you’re guaranteed not to hit anything by following the guidance. But if there is neither for the airport in question and you can’t make it to MIA/MVA while VFR, there are two options:
1) Call for a void time clearance. If your cell phone works in those environs and you can hear in the aircraft, call from the aircraft at the end of the runway. This works when VFR isn’t an option due to low clouds.
2) Depart VFR, make radio contact, and verify with the controller that you can maintain terrain/obstacle clearance (notice we didn’t say anything about staying VFR) and make absolutely sure that there is nothing that would get in your way on the way up to safe skies.
Coordinate with ATC what your heading will be as you emerge into controlled airspace so they know where to expect you.
It might involve circling up over the airport—that happens a lot in mountainous terrain. Just be sure that there’s nothing in the way. With GPS, staying close to the departure waypoint is pretty easy.
Now, who said this was complicated?