I.

INTRODUCTION

Any one who has been around flying very long has seen a pilot fly his aircraft down a runway without the intention of conducting a landing. These VFR low approaches or low passes are frequently conducted in conjunction with air shows, and if an ATC instruction was given authorizing the maneuver, it would seem that the FAA would be hard pressed to claim the operation was a violation of the Federal Aviation Regulations. What about low approaches at uncontrolled airports where the pilot conducting the low approach in effect clears himself to execute the maneuver? What if the aircraft had been on an IFR flight plan, requested ATC approval to conduct a low approach, executed the maneuver and then returned to the jurisdiction of ATC; is this a violation of the FARs? Does it matter if the pilot of the aircraft is executing a standard instrument approach procedure and descends no lower than the Minimum Descent Altitude (MDA)?

According to the understanding of the author, before 1987, the Agency had never argued that a low approach to an uncontrolled airport was a violation of the FARs. However, in 1987, a case was tried in which the captain of a Lockheed Electra was charged with (1) operating his aircraft over a congested area closer than 500 feet to persons, vessels, vehicles or structures contrary to what was then FAR § 91.79(c) [now codified at FAR § 91.119(b)] and (2) operating his aircraft in a careless or reckless manner contrary to what was then FAR § 91.9 [now codified at FAR § 91.13(a)]. That case was Administrator v. Hart, NTSB Docket No. SE-7789 tried, May 21, 1987, and affirmed by the Board in NTSB Docket No. EA-2884 on February 22, 1989 (hereinafter "Hart"). The Hart case was followed a few years later by Administrator v. McCollough, NTSB Docket No. SE-11951 tried on October 22, 1991, and affirmed by the Board on November 22, 1993, in NTSB Order No. EA-4020 (hereinafter "McCollough"). This article will discuss the regulatory underpinnings upon which the decisions in Hart and McCollough are based. After considering the regulations and pertinent provisions of the Aeronautical Information Manual and Air Traffic Control Handbook, it is the impression of the author that the Federal Aviation Regulations, the Aeronautical Information Manual, and the Air Traffic Control Handbook should be revised to caution pilots with respect to the position of the FAA and the NTSB that VFR low approaches over uncontrolled airports or runways are not authorized if the aircraft cannot execute a landing at that airport or runway.

II.

A REVIEW OF PERTINENT PROVISIONS OF THE AERONAUTICAL INFORMATION MANUAL

The introduction to the Aeronautical Information Manual (AIM) contains the following language:

This manual is designed to provide the aviation community with basic information and ATC procedures for use in the National Airspace System (NAS) of the United States . . . This manual contains the fundamentals required in order to fly in the United States NAS . . .

Turning to the Pilot/Controller Glossary, we find the following definition:

Low Approach – An approach over an airport or runway following an instrument approach or a VFR approach including the go-around maneuver where the pilot intentionally does not make contact with the runway. (Refer to AIM). [Emphasis added].

Next, if the reader reviews Paragraph 4-3-12 of the Aeronautical Information Manual, the following language appears:

a. A low approach (sometimes referred to as a low pass) is the go-around maneuver following an approach. Instead of landing or making a touch-and-go, a pilot may wish to go around (low approach) in order to expedite a particular operation (a series of practice instrument approaches is an example of such an operation). Unless otherwise authorized by ATC, the low approach should be made straight ahead, with no turns or climb made until the pilot has made a thorough visual check for other aircraft in the area…

b. When operating within a Class B, Class C and Class D surface area, a pilot intending to make a low approach should contact the tower for approval. This request should be made prior to starting the final approach.

c. When operating to an airport, not within a Class B, Class C, and Class D surface area, a pilot intending to make a low approach should, prior to leaving the final approach fix inbound (non-precision approach) or the outer marker or fix used in lieu of the outer marker inbound (precision approach), so advise the FSS, UNICOM, or make a broadcast as appropriate . . . Reference – AIM, Traffic Advisory Practices at Airports without Operating Control Towers, Paragraph 4-1-9.

Paragraph 4-1-9 of the Aeronautical Information Manual provides:

The key to communicating at an airport without an operating control tower is the selection of the correct common frequency. The acronym CTAF, which stands for Common Traffic Advisory Frequency, is synonymous with this program. A CTAF is a frequency designed for the purpose of carrying out airport advisory practices while operating to or from an airport without an operating control tower. The CTAF may be a Unicom, Multicom, FSS, or Tower Frequency and is identified in the appropriate aeronautical publications.

Paragraph 4-1-9(d)(2) of the Aeronautical Information Manual provides:

In communicating with a CTAF FSS, establish two-way radio communications before transmitting outbound/inbound intentions or information. An inbound aircraft should report approximately ten miles from the airport, reporting altitude and aircraft type, location relative to the airport, state whether landing or overflight, and request appropriate advisory . . .

Not only does Paragraph 4-1-9 of the Aeronautical Information Manual discuss traffic advisories, but phraseology for advising as to conducting a low approach or practice approach is set forth in Paragraph 4-1-9, to wit:

(c) STRONG TRAFFIC, CESSNA 2149Q (POSITION FROM THE AIRPORT) INBOUND DESCENDING THROUGH (ALTITUDE) PRACTICE (NAME OF APPROACH) APPROACH RUNWAY 35 STRONG.

STRONG TRAFFIC, CESSNA 2143Q PRACTICE (TYPE) APPROACH COMPLETED OR TERMINATED RUNWAY 35 STRONG.

In short, the Aeronautical Information Manual defines a low approach, tells a pilot how to execute a low approach at airports with control towers and airports without control towers. According to the Pilot/Controller Glossary, a low approach is authorized over an airport or runway following either an instrument approach or a VFR approach. Nothing in the Aeronautical Information Manual alerts the pilot to the position taken by the Agency in Hart and McCollough that the Agency will consider the operation of an aircraft below 1,000 feet over a congested area to be a careless or reckless act even though the pilot is conducting a low approach over an "airport" or a "runway" as the term low approach appears in the Pilot/Controller Glossary of the Aeronautical Information Manual. There are no cautionary instructions in Paragraph 4-3-12 of the Aeronautical Information Manual warning a pilot that if he conducts a low approach over a runway that is too short to accommodate his aircraft, then the pilot will be deemed to have violated FAR § 91.119(b) and § 91.13(a). Perhaps the FAA believes that the aviation community knows that these kinds of operations are inherently wrong. Even if that were true, the FAA condones the operation of low approaches over uncontrolled airports so long as the pilot broadcasts his intentions over the Unicom Frequency at the final approach fix. See Paragraph 4-1-9(c), Aeronautical Information Manual.

III.

THE AIR TRAFFIC CONTROL HANDBOOK

Paragraph 3-8-2 of the Air Traffic Control Handbook (FAA Order 7110.65M) provides as follows:

Consider an aircraft cleared for touch-and-go, stop-and-go, or low approach as an arriving aircraft until it . . . crosses the landing threshold (for low approach) and thereafter as a departing aircraft. [Emphasis added.]

Paragraph 4-1-12 of the Air Traffic Control Handbook provides:

Consider an aircraft cleared for a touch-and-go, low approach or practice approach as an arriving aircraft until the aircraft touches down or crosses the landing threshold; thereafter, consider the aircraft as a departing aircraft. Before the aircraft begins its final descent, issue the appropriate departure instructions the pilot is to follow upon completion of the approach (in accordance with Para. 4-3-2, DEPARTURE CLEARANCES). Climb-out instructions must include a specific heading or route of flight and altitude accept when the aircraft will maintain VFR and contact the tower. [Emphasis added].

After reading these provisions of the Air Traffic Control Handbook, we understand that not only are pilots conversant with the concept of a low approach, but the same is true for air traffic control personnel. A pilot on an IFR flight plan may conduct a low approach into an uncontrolled airport incident to his executing an approved standard instrument approach procedure, and ATC personnel will then clear the aircraft to conduct the low approach to an uncontrolled airport and issue missed approach instructions such as following a specific heading, route of flight and altitude if the aircraft is not to follow the published missed approach procedure in the standard instrument approach procedure.

Finally, Paragraph 3-10-10 of the Air Traffic Control Handbook provides:

A low approach with an altitude restriction of not less than 500 feet above the airport may be authorized except over an aircraft in takeoff position or a departure aircraft . . .

IV.

AN EXAMINATION OF THE FEDERAL AVAITION REGULATIONS EMPLOYED BY THE AGENCY IN LOW APPROACH CASES

FAR § 91.119 provides:

Except when necessary for takeoff or landing, no person may operate an aircraft below the following altitudes:

(a) Anywhere. An altitude allowing, if a power unit fails, an emergency landing without undue hazard to persons or property on the surface.

(b) Over congested areas. Over any congested area of a city, town, or settlement, or over any open-air assembly of persons, an altitude of 1,000 feet above the highest obstacle within a horizontal radius of 2,000 feet of the aircraft.

(c) Over other than congested areas. An altitude of 500 feet above the surface except over open water or sparsely populated areas. In those cases, the aircraft may not be operated closer than 500 feet to any person, vessel, vehicle or structure. [Emphasis added].

A reading of FAR § 91.119 reveals a patent oversight by the drafter of that regulation. Nothing in that regulation permits the aircraft to descend for a low approach. The aircraft is only authorized to descend below the appropriate minimum safe altitude if the maneuver is taking place "for take off or landing." We know that air traffic control personnel are authorized to clear aircraft to conduct low approaches in controlled airspace. See Paragraph 3-10-10 of the Air Traffic Control Handbook. Clearly, a local controller in an air traffic control tower has the authority to instruct an aircraft to conduct a low approach over a runway. Not only can a local controller in a control tower authorize an aircraft to conduct a low approach over a runway, but controllers working in Air Route Traffic Control Center facilities and TRACONS may clear the pilot of an aircraft to conduct a low approach to an airport that is "uncontrolled." See Paragraph 4-8-12 of the Air Traffic Control Handbook. If a pilot is operating VFR but practicing a standard instrument approach procedure, what is to prevent him from conducting a low approach from the final approach fix to the missed approach point? Obviously, the answer is nothing, since Paragraph 4-1-9(c) of the Aeronautical Information Manual specifically condones this operation by telling the pilot the phraseology to employ over the CTAF in announcing his or her intentions.

Taking our questioning one step further, what is to prevent a pilot operating VFR from conducting a low approach over an airport or runway as part of a VFR operation? Again, on the surface of the language contained in the Aeronautical Information Manual, there appears to be no prohibition against this operation, since a low approach is authorized over an airport or runway as part of a VFR approach. See the definition of "low approach" in the Pilot/Controller Glossary of the Aeronautical Information Manual. Having come to this conclusion, let us now turn to the cases of Hart and McCollough.

V.

THE FACTS IN ADMINISTRATOR V. HART

In Administrator v. Hart, the captain of a Lockheed Electra decided to allow his first officer who was scheduled for a checkride to do some practice airwork in the form of a simulated landing maneuver over a 2,000-foot grass-dirt-sod strip known as Jack Fish Landing Airstrip near Wasilla, Alaska. The captain admitted that the 2,000-foot sod strip was not a suitable landing sight for the Lockheed Electra. There were trees on either side of the airstrip and residences to the south with houses as close as 100 feet from it, the "legal" length of the runway being about 1,900 feet. The low approach as accomplished over the sod strip with the landing gear and flaps in the retracted position. When the case was tried, the administrative law judge found that the captain had violated the minimum altitude provisions that were then codified in Section 91.79(c) and the careless or reckless provisions then found in FAR § 91.9. After finding a violation, the judge reduced the sanction from a thirty-day suspension to a fifteen-day suspension of the captain’s airline transport pilot certificate.

Captain Hart appealed the adverse finding by the court, but the NTSB affirmed the conclusion that Captain Hart had committed a violation of the Federal Aviation Regulations because the airport over which the low approach was conducted was unsuitable for a landing. Member Joseph T. Nall (now deceased) wrote a nine page dissent noting that a violation of FAR § 91.9(c) [the minimum safe altitude provisions then found in the FARs] was not before the Board. Accordingly, the only issue before the Board according to Member Nall was whether or not Captain Hart had operated his aircraft in a careless or reckless manner contrary to what was then codified at FAR § 91.9, now codified at FAR § 91.13(a). Member Nall noted that the careless flying provision of the FARs had gone unchanged for the past 40 years. He further argued that the regulation dealing with careless or reckless flying requires that persons or property be endangered, and he argued that the Board had broadened the endangerment concept to one of constructive endangerment. He further noted that since the violation of FAR § 91.79(c) was not before the Board, the careless or reckless operation provision of FAR § 91.9, now FAR § 91.13(a) was not merely a residual violation but was being employed by the FAA in that case as a substantive violation. Member Nall noted that a low approach was a defined term in the Pilot/Controller Glossary of the Aeronautical Information Manual, and he argued as follows:

If this case represents accurate law, then a pilot who is executing a published instrument approach procedure at an airport at which he could not land is violating the FARs. The published approach charts are replete with examples of airports with narrow runways which would not support a heavy aircraft and which are less than 4,000 feet in length, but which nonetheless allow Category D aircraft (gross weight exceeding 150,000 pounds and a stall speed exceeding 140 knots) to make instrument approached under Part 91 in zero/zero conditions to within a few hundred feet from the ground. Even more persuasive is the FAA requirement that pilots remain instrument current by conducting at least six instrument approaches within a six-month period. For pilots operating seaplanes, making practice instrument approaches to any hard surface runway, regardless of size, would constitute careless or reckless behavior. Clearly, the execution of such approaches at fields at which an aircraft cannot land is not nor was it intended to be, per se, careless or reckless.

In the instant case, respondent never intended to land, hence the length of the runway was irrelevant, so long as the runway was a regularly established and recognized landing area for airplanes. One may often choose to overfly an airport (e.g., an unimproved runway to determine obstructions) to observe its suitability for landing and decide to go elsewhere. Or to practice VFR approaches or go-arounds? Are these acts careless or reckless?

If so, then the Airman’s Information Manual is held in conflict, because it currently describes and sanctions the "low approach."

Finally, Member Nall wrote:

For the Safety Board to define "potential endangerment" as broadly as the majority has done renders FAR § 91.9 [now codified at 91.13(a)] essentially meaningless, because the respondent is given no clear standard by which his flying can be measured. Because the formula adopted by the majority is vague and overbroad, it fails to comply with due process and is error as a matter of law.

VI.

In Administrator v. McCollough, the claim was made that an airline transport rated pilot had flown a Learjet at an altitude of 50 feet above a gravel runway at an airspeed between two hundred and three hundred knots. The airman was charged with violating FAR § 91.119(b) and FAR § 91.13(a). The pilot made several arguments in his defense. One argument was that another pilot had done the same thing on the same day, and he was a victim of selective enforcement. The other argument was that he was conducting a landing maneuver, and he was authorized to descend below the minimum safe altitudes prescribed in FAR § 91.119 in order to simulate the landing maneuver. After the administrative law judge imposed a thirty-day suspension of the airman’s certificate, he appealed to the Board, but the Board affirmed the judge’s finding holding:

Under Board precedent, simulated landing maneuvers are treated as landings for purposes of determining whether the exception found in the prefatory clause of Section 91.119 applies to a particular flight. We have long held, however, that the exception is inapplicable in cases where an unsuitable landing site is used. Thus, in Administrator v. Hart, NTSB Order EA-2884 (1989), we observed that the prefatory clause exception did not apply to a practice rejected landing performed by the pilot of a Lockheed Electra at a 2,000-foot long 100-foot wide grass-dirt-sod airstrip which was admittedly not suitable for normal landing by that aircraft. The Board, in Hart specifically rejected the notion that a low flight charge may be vitiated "solely by the fact that [a] practice low approach is make to ‘a’ designated landing area, and opined that "practice landings at landing areas where an actual landing would not be permissible are subject to all prohibitions of . . . [the regulation] in respect to altitude."

The Board noted that the Cedar Valley Airport over which the Learjet had flown in McCollough was a gravel surface, and landing on the gravel surface would not have been suitable for that aircraft.

VII.

CONCLUSION

The Fifth Amendment to the Constitution of the United States provides:

No person shall be . . . deprived of life, liberty, or property, without due process of law . . .

Further, there is abundant case law that stands for the proposition that an airman’s certificate is a protected property or liberty interest that should not be taken away unless the pilot is provided due process of law. See, e.g., Green v. Brantley, 719 F.Supp. 1570 (N.D.Ga. 1989) [the authority to act as a designated pilot examiner was a protected property interest that could not be taken away by the FAA without following the provisions of the Administrative Procedure Act].

Nothing in the Federal Aviation Regulations or in the Aeronautical Information Manual warns a pilot that his conducting a "low approach" will only be deemed appropriate if the "airport or runway" is one upon which his aircraft can land. See, e.g., the definition of a "low approach" in the Pilot/Controller Glossary of the Aeronautical Information Manual. Nothing in the Airport Operations Provisions of the Aeronautical Information Manual, which sanctions a low approach, tells a pilot that his execution of a low approach at an uncontrolled airport will only be deemed safe if his aircraft could actually land on the "airport or runway." See Paragraph 4-3-12(c) of the Aeronautical Information Manual.

Not only is the Aeronautical Information Manual silent on this topic, but as noted previously, there is no consistency between the provisions of the Aeronautical Information Manual and the Federal Aviation Regulations, since the prefatory provisions of FAR § 91.119 only permit the descent below a safe altitude if the aircraft is in the process of takeoff or landing. Nothing is said in that regulation about executing a low approach, even though the execution of low approaches is condoned and authorized both by provisions in the Aeronautical Information Manual and also in the Air Traffic Control Handbook.