Esta é uma carta da AOPA que foi publicado na Aero News Network , com base em uma consulta feita à FAA sobre este mesmo tópico.
Minha interpretação é que não há uma resposta definitiva e que tanto o piloto quanto o controlador têm uma responsabilidade, que pode responder à questão sobre o motivo pelo qual ambas as partes foram suspensas no caso descrito no post do OP.
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]