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In the U.S., does an ATC Tower Controller have the authority to effectively waive 14 CFR Part 91.119 (c) by clearing a pilot for a low approach who has requested to fly at 200 feet AGL along the entire length of the runway (for non-flight training purposes, e.g., an aircraft sales demonstration, videotaping, etc.), assuming there are airplanes or structures within 500 feet of the low approach aircraft located on the surface?

91.119 Minimum safe altitudes: General.

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

(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.

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  • $\begingroup$ Is the suggestion here that when a CFI has his student fly to a 200' DH and then execute a planned go-around, flying closer than 500' to an aircraft waiting at the hold-short line, since the operation wasn't "necessary for takeoff or landing" (as no landing was intended from that pattern), that 91.119 has been violated? Or even without an aircraft holding short, would the approach lights constitute a "structure" of which the practice approach flies within 500'? $\endgroup$
    – Ralph J
    Apr 29, 2023 at 16:52
  • $\begingroup$ See also: Flight Check operations, which commonly take an ILS approach to a low approach down the entire length of the runway at mere tens of feet AGL. $\endgroup$
    – randomhead
    Apr 29, 2023 at 19:11
  • $\begingroup$ I've been cleared for a low approach many times, even with aircraft in the hold short, and buildings and antennas in the vicinity. It's an airport, low approaches are a thing... $\endgroup$ Apr 30, 2023 at 2:15
  • $\begingroup$ Such approaches for "sales demonstration purposes" are usually done at airshows, where there are already permitted exceptions to rules such as this. $\endgroup$ Apr 30, 2023 at 3:33

2 Answers 2

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No. ATC never has any authority to authorize you to break the law. If ATC gives a pilot instructions that are contrary to the FARs (for a more common example: issuing an IFR clearance to a VFR-only pilot), it is the pilot's responsibility to reject the instructions. Or use their PIC authority to deviate from the rule, if it is necessary in an emergency.

Regarding your implied question about violating 91.119 at an airport, the Anderson interpretation touches on this topic. It holds that 91.119 does not apply to ordinary operations in the traffic pattern at an airport, and this includes non-landings such as low approaches, since these are intended to improve a student's abilities in landing operations.

Arguably, this exception does not apply if the operation is not for practice. It's not clear how an "advertising" low approach would be distinguishable from one made for practice, but if they are distinguishable it's not impossible that a pilot would be violated for them.

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    $\begingroup$ Perhaps worth noting that unlike ATC, a FSDO does have the authority to issue waivers for FARs. $\endgroup$
    – TypeIA
    May 1, 2023 at 13:25
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There are really two questions here:

  1. Can ATC clear you for a low approach? Yes.
  2. Does ATC have the authority to waive a CFR? No.

A better question might be:

  1. If ATC cleared me for a low approach and I held 200’ for the length of the runway before climbing to pattern altitude, would that be a violation of CFR 91.119?

I believe the answer is no, as I explain further below.

The Anderson Interpretation was used in another answer to support a position that a 200’ low approach would be (arguably) illegal, but I disagree. We don’t know exactly what Mr. Anderson was asking about, but can glean important information from the response and other examples cited.

In clearing you for a low approach ATC would not be waiving 91.119 because it isn't applicable to traffic pattern operations. Quoting from an earlier interpretation by another FAA Assistant Chief Counsel, the responding FAA Assistant Chief Counsel for Regulations states:

The FAA has determined that"§ 91.119 does generally not apply to aircraft operations within airport traffic patterns," and that "aircraft operating within a traffic pattern are excepted from the regulation for a considerable portion of each pattern, i.e., during climb to pattern altitude following each takeoff, and during descent from pattern altitude prior to each landing."

It continues:

…the takeoff and landing exception to § 91.119 "applies equally to all practice approaches, including repeated 'touch and go,' 'stop and go,' and 'low approach' operations”.... "

It goes on to quote the NTSB:

These practice maneuvers come within the takeoff or landing exemption to the [section 91 .119] restrictions because their purpose is to improve a pilot's capabilities in those operations."). Therefore, if the operation is not within the traffic pattern, or involves the approaches noted above, the pilot must operate in accordance with §91.119

The corollary to the statement in bold is if the aircraft IS within the traffic pattern, the pilot is NOT required to operate in accordance with 91.119.

The examples given in the Anderson interpretation that do NOT fall within the exception are pretty egregious compared to a low approach directly over the active runway. In one example an aircraft was circling low over a residential subdivision taking photographs, and another was circling just 100’ over some houses while troubleshooting a problem. Both instances were apparently well outside the normal traffic pattern, therefore not meeting the definition of normal runway operations, (T&G, Low approach, etc.) and were close enough to housing to be certain to generate complaints.

However, the space directly over the airport runway is clear from the surface to pattern altitude for all pattern operations. If tower clears you for a low approach you may fly at any altitude in between. Any buildings and other obstructions in the immediate vicinity have already been factored into the airport and instrument approach procedure design. Airport structures are not the intent of 91.119.

If tower has cleared you for the option they don’t care if your wheels touch or not, whether you initiate a go-around at 20’ and climb to TPA at Vx, or execute an early missed approach at instrument minimums and stay level while you retract the landing gear and accelerate to flap retraction airspeed. The manner in which you fly the low approach is at pilot’s discretion.

The crux of the question seems to then hinge on intent, specifically offering the examples of “non-flight training purposes, e.g., an aircraft sales demonstration, videotaping, etc.” But what exactly does this mean?

Let’s consider an example that combines a couple elements… Jim is demonstrating an airplane he has for sale to Bob. Jim’s hangar is located in close enough proximity to departure end of the runway in use that if it were NOT located right there at the airport it would be a violation of 91.119 to fly as close to it as every single plane that uses the runway does. But that’s OK, because this is an airport…

Bob’s wife Alice remains behind at the hangar with a video recorder to document the test flight, transition training, or whatever we decide to call this flight. Both the demonstration and recording of it are perfectly legal per part 91.

During a practice ILS Jim suggests that they hold their altitude at mins while they clean up off the practice missed approach until the upwind numbers to demonstrate level acceleration and pitch changes during flap retraction, and also give Alice a good shot of the airplane. Bob agrees, gets clearance for the option, and that’s what they do.

During this pass they are actually even a bit further away from the hangar than they were on the initial take off, as well as an earlier stop and go!

So, the question really becomes this: Does the lack of a positive rate of climb, or secondary intent to allow Alice a slightly better view to record video create a violation?

The CFRs aren’t nearly that specific, but as long as they are in the tower controlled pattern and over the runway I think even a pretty conservative interpretation would answer no. Intent generally only becomes relevant if a reportable incident occurs as a result of the pilot’s actions. (For example a mishap, or noise complaint leading to an investigation.)

If Jim or Bob were really “showing off” and screwed up the low approach the investigation might question why they remained at 200’ along the runway before climbing further, otherwise it is doubtful ATC would care.

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