VFR Minimums in Class D Airspace
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I've always had the assumption,maybe incorrectly,that in Class D airspace, once the ceiling is 1000' or above and visibility is 3 miles or greater,that the airport is operating VFR, and that's when they turn off the beacon. Under those conditions, when cleared into the Class D, do I:  a.)  I fly at the published pattern altitude,  b.) fly the pattern maintaining cloud clearance of 500' below, or c.) request a special VFR clearance and just remain clear of clouds?
10 Replies
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CFR 91.155(a) Class D: 500' below clouds for VFR. SVFR would allow you get closer, if it's available. (They can turn off the beacon under those conditions, but as far as I know they're not required to.)
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The best answer is (c).  Flying the pattern below TPA risks violating 91.119 minimum altitudes, especially if there's a congested area below the pattern.  The "when necessary for takeoff/landing" exception in 91.119 applies only to the necessary climb to and descent from TPA, not to flying level in the rest of the pattern, so (a) would violate 91.155 and (b) would be legal only if there are no "congested areas" below the pattern.  And keep in mind that the FAA's definition of a "congested area" is very inclusive, some examples being a highway with "moderate" traffic and a collection of 6 houses in a 1/4-mile area.
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Gary Drescher:
CFR 91.155(a) Class D: 500' below clouds for VFR. SVFR would allow you get closer, if it's available. (They can turn off the beacon under those conditions, but as far as I know they're not required to.)

The beacon being on or off is not dispositive of the weather being legally VFR or not.  It's been known for airport operators to forget to turn it on or off for weather or day/night conditions.  The only thing that matters in this context is the actual reported weather -- the fact that the beacon was off doesn't excuse violating 91.155 if you know (or should have known -- "I didn't check the AWOS" isn't a legal excuse if you have a working radio) the weather was below legal VFR mins.
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Thanks for the responses. That clears it up (no pun intended) for me. So, to be safe and legal, at most Class D airports with a 1000' TPA, it would require a ceiliing of at least 1500' and visibility of 3 miles to enter the pattern. Any lower ceiling would require a special VFR clearance,(which may not be allowed if there is any IFR traffic on an approach.) 
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Thomas Braeunig:
Thanks for the responses. That clears it up (no pun intended) for me. So, to be safe and legal, at most Class D airports with a 1000' TPA, it would require a ceiliing of at least 1500' and visibility of 3 miles to enter the pattern. Any lower ceiling would require a special VFR clearance,(which may not be allowed if there is any IFR traffic on an approach.) 

Yup.  Same is true for Class C, too.  Slight difference for Class B, where VFR is legal with 3 miles and clear of clouds, so there you could be within 500 feet of the bases while VFR since ATC is already providing positive separation..
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Ronald Levy:
The best answer is (c).  Flying the pattern below TPA risks violating 91.119 minimum altitudes, especially if there's a congested area below the pattern.  The "when necessary for takeoff/landing" exception in 91.119 applies only to the necessary climb to and descent from TPA, not to flying level in the rest of the pattern, so (a) would violate 91.155 and (b) would be legal only if there are no "congested areas" below the pattern.  And keep in mind that the FAA's definition of a "congested area" is very inclusive, some examples being a highway with "moderate" traffic and a collection of 6 houses in a 1/4-mile area.

Are you sure 91.119 doesn't apply to flying in the pattern? May I ask your source, please? The reason I'm skeptical is that there are airports where the published TPA is well below 1000' AGL in what are undoubtedly congested areas (for instance, KCAR has a TPA of 800' AGL in an area that includes dense housing developments and shopping malls). So if 91.119 doesn't apply to the pattern, then isn't it illegal to fly the published TPA at such airports?
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Gary Drescher:

Ronald Levy:
The best answer is (c).  Flying the pattern below TPA risks violating 91.119 minimum altitudes, especially if there's a congested area below the pattern.  The "when necessary for takeoff/landing" exception in 91.119 applies only to the necessary climb to and descent from TPA, not to flying level in the rest of the pattern, so (a) would violate 91.155 and (b) would be legal only if there are no "congested areas" below the pattern.  And keep in mind that the FAA's definition of a "congested area" is very inclusive, some examples being a highway with "moderate" traffic and a collection of 6 houses in a 1/4-mile area.

Are you sure 91.119 doesn't apply to flying in the pattern?
Perhaps you misread what I wrote.  I am quite sure it DOES apply, and there is case law on point.
May I ask your source, please? The reason I'm skeptical is that there are airports where the published TPA is well below 1000' AGL in what are undoubtedly congested areas (for instance, KCAR has a TPA of 800' AGL in an area that includes dense housing developments and shopping malls).
If a TPA below 1000 AGL is FAA-approved and published in the Airport/Facility Directory portion of the Chart Supplement, that constitutes written FAA approval to deviate from 91.119 by operating below 1000 AGL over congested areas in the traffic pattern at that airport.  However, the issue I raised is the "Except when necessary for takeoff or landing" phrase in 91.119.  There is case law on point which clearly states that by "necessary", the FAA means only that you are allowed to descend below those the 91.119-applicable minimum altitudes during the portions of the pattern from takeoff climbing normally to the TPA and from TPA descending normally to the runway (e.g., descending from TPA on base/final legs).  You are not allowed to fly the whole pattern below the applicable 91.119 minimum altitude just because flying at TPA on the downwind would violate 91.155 cloud clearance rules, i.e., it isn't "necessary" to make a landing there.  Think of "necessary" in this context to mean of whether you'd have to fly that low at that point in the pattern to land there even if it were clear and a million, i.e., without regard to the weather and 91.155.

This was made clear in a case involving two CFI's doing training with their students doing T&G's in the pattern at Republic Airport in Farmingdale NY, which is totally surrounded by highly congested areas.  The ceiling was reported at 1300 feet, and the TPA is 1100 MSL/1020 AGL.  They chose to fly the pattern at 800 AGL to avoid being within 500 feet of the cloud bases, and were busted for unnecessarily being less than 1000 AGL on the downwind leg.  Their argument that it was "necessary" to fly that low in order to do takeoffs and landings was unavailing.  The FAA's position was that it was not "necessary" for them to take off under VFR in the first place, and they could done this legally by obtaining for SVFR clearances which would allow flying only 300 feet below the cloud bases at the normal TPA while ensuring proper separation from IFR traffic.  The FAA argument that they should not have taken off under regular VFR since they knew they couldn't comply with both 91.155 and 91.119 while flying round and round the pattern prevailed with the ALJ, and both instructors were hit with sanctions.  As the instructors did not appeal this to the full NTSB, you can't find the case on the internet unless you have access to legal resources like Westlaw or Lexis/Nexis.
 
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Just to be clear, what we're discussing is an airport in Class D airspace, which goes to the surface for that airport.

 

What 91.155(c/d) does is prohibit takeoffs and landings at such airports when the visibility is below 3 miles, and prohibit VFR operations below the ceiling when the ceiling is less than 1000 feet.  It does not allow violations of other regulations just because the weather is better than 1000-3, nor provide relief from 91.119 when in the traffic pattern.

 

Don't confuse a question on the knowledge test about what one specific regulation says with a license to violate other regulations while complying with that one while actually flying in the real world.  It's kind of like what it says in 91.173 about an IFR flight plan and ATC clearance being required to fly IFR in controlled airspace.  The fact that 91.173 doesn't explicitly prohibit flying IFR in uncontrolled airspace without a flight plan/clearance doesn't mean you do not have to obey all the other applicable regulations (like 91.13, 91.119, 91.175, and 91.177) while you do it -- which you'll find pretty much impossible.  Just ask George E. Murphy, who got bagged for doing just that and spent 90 days on the ground contemplating the error of his ways.


If you're in the pattern in controlled airspace under VFR you must remain 500 below the clouds as required by 91.155 while adhering to the applicable minimum altitude in 91.119 until descent from that altitude is necessary to land.  If the published TPA is less than 1000 (as many are), or the ground below you is not "congested", you can do that will less than 1500 feet between the clouds and ground.  And it doesn't have to be a "ceiling" -- if there are scattered/few clouds over the airport lower than 500 above TPA, you still have to maintain your 1-5-2 separation from them while VFR even if there is no ceiling at all.  That said, you can do pattern work legally in controlled airspace without maintaining the 1-5-2 separation from the clouds or needing 1000-3 if you obtain a SVFR clearance and can stay clear of the clouds with as little as 1 mile visibility, although you still have to obey 91.119, which could be a problem if there are congested areas under the pattern.


91.155(c/d) does not contradict or provide any exceptions to paragraph 91.155(a).  It instead creates additional restrictions in certain airspace beyond what paragraph (a) says generally.  The fact that one regulation says "you can't do this" does not mean "you can ignore all other rules as long as you aren't doing this".  I should point out that this is not my own interpretation -- it comes from FAA Legal.  Note in particular the last paragraph on page 1 of the Anderson interpretation below, which tells us that the "when necessary for takeoff and landing" exception applies only to a "portion of the traffic pattern" (albeit "a considerable portion"), not the entire pattern.  This is based on the 1997 Deighan interpretation which says, "...one must determine whether that portion of the flight is necessary to permit the pilot to transition between the surface and the en route or pattern altitude in connection with a takeoff or landing."  Again -- the focus is on the "transition" to/from TPA, not flying level at TPA. 


https://www.faa.gov/about/office_org/headquarters_offices/agc/practice_areas/regulations/interpretations/Data/interps/2009/Anderson%20-%20(2009)%20Legal%20Interpretation.pdf

If you have further questions or concerns, you should direct them to:

Office of the Chief Counsel (AGC-200)
800 Independence Avenue SW
Washington, DC 20591
(202) 267-3222 Telephone
(202) 267-3227 Fax
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Ronald Levy:

Perhaps you misread what I wrote.  I am quite sure it DOES apply, and there is case law on point.
Sorry, what I meant there was "if the takeoff/landing exception of 91.119 doesn't apply".
The fact that one regulation says "you can't do this" does not mean "you can ignore all other rules as long as you aren't doing this". 
I don't think anyone imagined otherwise. The question (which you've now addressed) was whether the takeoff/landing exception keeps it from violating the other rule.
If a TPA below 1000 AGL is FAA-approved and published in the Airport/Facility Directory portion of the Chart Supplement, that constitutes written FAA approval to deviate from 91.119 by operating below 1000 AGL over congested areas in the traffic pattern at that airport.
Nothing in 91.119 says it's waivable, though. The FAA can't usually overrule CFR requirements, can they? (The FAA has said, for example, that it lacks the authority to waive, for BasicMed holders, the requirement to have a medical certificate in order to act as non-PIC safety pilot, because that requirement is codified in the CFRs.)

(Thank you for the Anderson link.)
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91.119 is waiverable.  See 91.905.  In addition, the Deighan interpretation implies being at pattern altitude is necessary for takeoff and landing, so if pattern altitude is less than 1000AGL, that interpretation covers this issue.  OTOH, regarding using Basic Med when not the PIC, there is no regulatory provision to waive any portion of 61.113(i).  Further, since 61.113(i) was promulgated as directed by an Act of Congress, the FAA lacks the authority to add to it without either Congressional approval or the full years-long rulemaking process, and the issue is not sufficiently important for the FAA to expend the resources to go through that process -- too many other much higher priorities.