A question came up in Sunday's virtual meeting that requires a bit of investigation: if an approach clearance does not contain the words "maintain VFR," is it automatically an IFR clearance? Does accepting a clearance without that phrase cause the flight to operate under IFR?
The relevant bits I'm drawing on are copied below. They come from the Aeronautical Information Manual, the Code of Federal Regulations, the 7110.65AA (Air Traffic Control), and 7210.3DD (Facility Operation and Administration). I also spent several hours reading through NTSB ALJ decisions and FAA Chief Counsel interpretations. I'm also reaching out to others to comment on the issue and will include that material in our next meeting.
Also note: I'm not a lawyer, and I'm not your lawyer. If you're doing something that you think may have legal implications, seek competent counsel. And note: I'm not your instructor. I'm just a peer who runs this group. Anything your instructor or flight manual or op spec or chief pilot or cat says takes precedence.
The rules are surprisingly thin on this topic, but there are nonetheless some important things to note. First of all, to operate IFR, you must have both a filed flight plan and an "appropriate clearance" per 91.173. The filed plan can be gathered by ATC as part of getting a pop-up, which is why they often respond to a request with "say aircraft type and destination" or similar. The nature of an "appropriate clearance" is the part that's at issue here.
7110 4-2-1 is fairly clear on what an IFR clearance must contain. If talking directly to ATC, the second item (right after aircraft ID) always starts with "CLEARED TO." That's the clearance limit. It must be included, and it must be in the form "... AIRPORT" or "... FIX" or "... VOR/NDB/VORTAC." There are no other options, because the limit is a point in space. Note that an approach clearance does not contain those items; it does not have a clearance limit. Instead, you are given "CLEARED ... APPROACH."
Moreover, when ATC supersedes an IFR clearance, those amendments ("I have a full route clearance; advise ready to copy") also start with "CLEARED TO." On the other hand, if you are operating under IFR and ask for a practice approach while en route to your intended destination, the approach does not replace your existing IFR clearance. You won't get a new "CLEARED TO" on completion of the approach, because the rules say nothing about re-issuing that clearance. Instead, you'll get "say intentions" or "direct to" a fix or simply "resume own navigation."
7110 4-8-11(a)(3) and 7210.3 10-4-5(c) both say that if standard separation services are NOT provided, then the "MAINTAIN VFR" phrase is used in the approach clearance. Surprisingly, it does not say this for facilities where separation services ARE provided, and instead the phrase is used only on "initial contact" [4-8-11(a)(5)].
As noted in the 7110, the "MAINTAIN VFR" phrase is intended merely as a reminder to VFR pilots that the approach clearance is not an IFR clearance, although the wording is the same. It's advisory. The "PRACTICE APPROACH APPROVED" phrase does not affect VFR/IFR operation because practice approaches are available under both. The "NO SEPARATION SERVICES PROVIDED" phrase appears only in clearances when the ATC facility doesn't offer separation services to VFR aircraft.
My interpretation of this is:
f. Prior to beginning the IFR portion of flight, a pilot must
receive an IFR clearance from the appropriate control facility.
91.173
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.
4-2-1. Clearance Items
Issue the following clearance items, as appropriate, in the order
listed below:
a. Aircraft identification.
b. Clearance limit.
1. When the clearance limit is an airport, the word “airport”
must follow the airport name.
PHRASEOLOGY - CLEARED TO (destination) AIRPORT.
2. When the clearance limit is a NAVAID, and the NAVAID type is
known, the type of NAVAID must follow the NAVAID name.
PHRASEOLOGY - CLEARED TO (NAVAID name and type).
3. When the clearance limit is an intersection or waypoint, and
the type is known, the type must follow the intersection or
waypoint name.
PHRASEOLOGY - CLEARED TO (intersection or waypoint name and
type).
4-2-8. IFR-VFR And VFR-IFR Flights
a. Clear an aircraft planning IFR operations for the initial part
of flight and VFR for the latter part to the fix at which the
IFR part ends.
b. Treat an aircraft planning VFR for the initial part of flight
and IFR for the latter part as a VFR departure. Issue a
clearance to this aircraft when it requests IFR clearance
approaching the fix where it proposes to start IFR
operations. The phraseology CLEARED TO (destination) AIRPORT AS
FILED may be used with abbreviated departure clearance
procedures.
4-2-9. Clearance Items
The following guidelines must be utilized to facilitate the
processing of airfile aircraft:
a. Ensure the aircraft is within your area of jurisdiction unless
otherwise coordinated.
b. Obtain necessary information needed to provide IFR service.
c. Issue clearance to destination, short range clearance, or an
instruction to the pilot to contact an FSS if the flight plan
cannot be processed. If clearance is to destination airport,
the phraseology CLEARED TO (destination) AIRPORT must be
used. If clearance is to a NAVAID, state the name of the NAVAID
followed by the type of NAVAID, if the type is known. If
clearance is to an intersection or waypoint and the type is
known, the type must follow the intersection or waypoint name.
Except for military aircraft operating at military airfields,
ensure that neither VFR nor IFR practice approaches disrupt the
flow of other arriving and departing IFR or VFR aircraft.
Authorize, withdraw authorization, or refuse to authorize practice
approaches as traffic conditions require. Normally, approaches in
progress should not be terminated.
NOTE - The priority afforded other aircraft over practice
instrument approaches is not intended to be so rigidly applied
that it causes grossly inefficient application of services.
a. Separation.
1. IFR aircraft practicing instrument approaches must be
afforded approved separation in accordance with Chapter 3,
Chapter 4, Chapter 5, Chapter 6, and Chapter 7 minima until:
(a) The aircraft lands, and the flight is terminated, or
(b) The pilot cancels the flight plan.
2. Where procedures require application of IFR separation to VFR
aircraft practicing instrument approaches, IFR separation in
accordance with Chapter 3, Chapter 4, Chapter 5, Chapter 6,
and Chapter 7 must be provided. Controller responsibility for
separation begins at the point where the approach clearance
becomes effective. Except for super or heavy aircraft, 500
feet vertical separation may be applied between VFR aircraft
and between a VFR and an IFR aircraft.
3. Where separation services are not provided to VFR aircraft
practicing instrument approaches, the controller must;
(a) Instruct the pilot to maintain VFR.
(b) Advise the pilot that separation services are not
provided.
PHRASEOLOGY - "(Aircraft identification) MAINTAIN VFR,
PRACTICE APPROACH APPROVED, NO SEPARATION SERVICES
PROVIDED."
(c) Provide traffic information or advise the pilot to
contact the appropriate facility.
4. If an altitude is assigned, including at or above/below
altitudes, the altitude specified must meet MVA, minimum safe
altitude, or minimum IFR altitude criteria.
5. All VFR aircraft must be instructed to maintain VFR on
initial contact or as soon as possible thereafter.
NOTE - This advisory is intended to remind the pilot that
even though ATC is providing IFR-type instructions, the pilot
is responsible for compliance with the applicable parts of
the CFR governing VFR flight.
b. Missed Approaches.
1. Unless alternate instructions have been issued, IFR aircraft
are automatically authorized to execute the missed approach
depicted for the instrument approach being flown.
2. VFR aircraft are not automatically authorized to execute the
missed approach procedure. This authorization must be
specifically requested by the pilot and approved by the
controller. When a missed approach has been approved and the
practice approach is conducted in accordance with paragraph
4-8-11a2, separation must be provided throughout the
procedure including the missed approach. If the practice
approach is conducted in accordance with paragraph 4-8-11a3,
separation services are not required during the missed
approach.
6-4-4. Practice Instrument Approaches
To the extent practicable, each ARTCC should provide IFR separation
to aircraft not on IFR flight plans conducting practice instrument
approaches to airports where that ARTCC provides approach control
service.
a. At locations where IFR separation is applied to VFR aircraft
conducting practice instrument approaches and that airport has a
non-approach control tower or a FSS, provisions for handling such
aircraft must be included in a letter of agreement.
b. ARTCCs must issue a letter to airmen advising users of airports
where IFR separation is provided for VFR aircraft conducting
practice instrument approaches. The letter should include
appropriate frequencies for the airport concerned.
10-4-5. Practice Instrument Approaches
a. VFR aircraft practicing instrument approaches at the approach
control’s primary airport must be provided IFR separation in
accordance with FAA Order JO 7110.65, Air Traffic Control,
Chapter 4, Section 8, Approach Clearance Procedures.
NOTE - The primary airport is the airport from which approach
control service is provided, except for remoted facilities
where the facility air traffic manager will designate the
primary airport.
b. IFR separation to VFR aircraft in accordance with FAA Order JO
7110.65, Chapter 4, Section 8, Approach Clearance Procedures,
must be provided to all secondary airports under the approach
control’s jurisdiction to the extent possible within existing
resources. Where separation service is provided to an airport
with a FSS that provides LAA, or a nonapproach control tower,
provisions for handling such aircraft must be included in a LOA.
c. Where IFR separation is not provided to VFR aircraft conducting
practice approaches, instruct the aircraft to maintain VFR and
provide traffic information.
d. At airports where the tower does not provide approach control
service, handle practice instrument approaches in accordance with
a LOA between the tower and the facility providing approach
control service.
e. Facilities must issue a letter to airmen advising the users of
those airports where IFR separation is provided for VFR aircraft
conducting practice instrument approaches. The letter should
specify which facility will handle the aircraft practicing
instrument approaches and include the appropriate frequencies.