Due Regard-What's That?

By Capt Kevin Jones HQ AFFSA/XOFD

DUE REGARD

It was August of 1990 and my crew and I had taken off in our KC-135 from Robins AFB to set up the "air bridge" for the initial waves of "Desert Shield." I was a former T-37 instructor pilot now sitting in the left seat with no overwater experience. My mission seemed simple enough: "Go forth and give them gas!" I will be the first to admit that I was ill-prepared for my first flight over the Atlantic. By the end of that long night, we were off the chart, dodging thunderstorms, running low on fuel, and considering two words I knew nothing about: "DUE REGARD."
Like me, I know many of you have been "trapped" out over the ocean, out of options and short on ideas when that quaint little phrase-"due regard"-has popped into your head. What does it mean and how does it work? As anyone who has flown oceanic much can tell you, the "big sky" theory does not apply out over the pond; it's more like the "big bang" theory. Understanding ICAO procedures and especially "due regard" is crucial to safe and successful operations in international airspace. Hopefully, this brief overview will give you a better idea of what "due regard" means and how the U.S. military implements the concept.

ORIGINS OF DUE REGARD

In 1944, 26 nations met in Chicago and formed the International Civil Aviation Organization (ICAO). Today, the ICAO has nearly 200 member nations. The Chicago Convention chartered the ICAO to develop air navigation principles and procedures for safety of air navigation. Although Article 3 of the convention exempts "state aircraft" from ICAO procedures, it requires "state aircraft" to fly with "due regard for the safety of civil aviation."

DoD DIRECTIVE 4540.1

In response to Article 3 of the Chicago Convention, the Secretary of Defense developed procedures governing U.S. military activities conducted in international airspace-these procedures are published in Department of Defense Directive 4540.1, Use of Airspace by U.S. Military Aircraft and Firings Over the High Seas. Since most of you don't carry DoD Directive 4540.1 in your pubs bags, most of its information has been reproduced for your use in Chapter 7 of FLIP General Planning (GP). Let's briefly review what's in GP and then we'll apply the guidelines to an actual mission.

GP CHAPTER 7

First of all, paragraph 7-4c tells us DoD policy is "that all U.S. military aircraft and firings shall operate with due regard for the safety of all air and surface traffic." Additionally, "when practical and compatible with the mission, U.S. military aircraft operating on the high seas shall observe ICAO flight procedures." However, the DoD policy recognizes that military aircraft cannot always comply with ICAO rules and lists four operational situations which may not lend themselves to complying with ICAO flight procedures:

EXEMPTIONS

Military Contingencies Classified Missions Politically Sensitive Missions Routine Aircraft Carrier Operations or other training activities

CONDITIONS REQUIRED TO FLY DUE REGARD

Those operations not conducted following ICAO flight procedures are conducted under the "due regard" or "operational" prerogative of "state aircraft" and are subject to one or more of the following conditions:
  • Aircraft shall be operated in visual meteorological conditions (VMC); or
  • Aircraft shall be operated within radar surveillance and radio communications of a surface radar facility; or
  • Aircraft shall be equipped with airborne radar that is sufficient to provide separation between themselves, aircraft they may be controlling, and other aircraft; or
  • Aircraft shall be operated outside controlled airspace
When we don't follow ICAO procedures, we must follow the conditions listed above in order to provide a level of safety equivalent to that normally given by ICAO air traffic control agencies and to fulfill U.S. obligations under Article 3 of the Chicago Convention.

WHERE CAN I FLY DUE REGARD?

Now that we've reviewed the rules, let's get specific about flying "due regard." The first big question you have to ask yourself is "Am I in international airspace?" If you only remember one thing from this article, remember this-you can only fly "due regard" in international airspace! In general, the U.S. defines international airspace as the airspace over the ocean farther than 12 nautical miles from the coast. Although some countries claim their sovereign airspace extends farther than 12 miles, the U.S. only recognizes territorial sea claims up to 12 nautical miles. (Remember Libya's "line of death?")

WHICH EXEMPTION ALLOWS ME TO FLY DUE REGARD?

The next question you must answer is "Why would I not follow the ICAO procedures?" Can the mission be categorized as a military contingency, a classified mission or a politically-sensitive mission? Are you involved with U.S. Navy carrier operations? If your flight doesn't fit into any of these categories, you probably should not fly "due regard."

WAS DUE REGARD A PART OF MY MISSION PROFILE?

Another question you might ask yourself is "Was I briefed prior to the mission that I would be using 'due regard' procedures?" The decision to fly "due regard" is not one to be taken lightly. [Normally AMC will authorize due regard in the "SPINS", if not you will be taking a big risk declaring due regard.] FLIP tells us that flights exercising "due regard" are "deviations from normally accepted operating procedures and practices, and shall not be undertaken routinely. Except for pre-planned missions, pilots or commanders exercising 'due regard' authority shall record the details in writing, and upon request from higher authority, furnish a detailed report." If you were briefed prior to your mission that "due regard" procedures were to be used, then you can probably be assured the nature of the mission is important enough to justify flying "due regard." If the idea of going "due regard" is a decision you made on the spot,, make sure your situation is serious enough to warrant deviating from ICAO procedures.

ARE YOU ABLE TO OPERATE UNDER ONE OF THE CONDITIONS REQUIRED TO FLY DUE REGARD?

Assuming your mission does qualify as one of the four exemptions, you must satisfy one more set of conditions. When you fly "due regard," you are guaranteeing the world that you can act as your own air traffic control and separate your aircraft from all others. In order to meet this stringent requirement, you must be in VMC, or within radar and radio contact of a surface facility providing radar separation, or your aircraft must have a radar capable of separating your aircraft and the aircraft you may be controlling from all other traffic, or you must be in uncontrolled airspace. Since most airspace over the oceans is controlled above 5,500 feet MSL, most "due regard" missions must be flown in VMC.

HAS THE APPROPRIATE MILITARY AUTHORITY ASSUMED RESPONSIBILITY FOR FLIGHT FOLLOWING AND SEARCH & RESCUE?

In addition to all of the other requirements listed above, when you go "due regard," you have to be aware of the responsibilities you have taken over from ATC. Essentially, flight under the "due regard" or "operational" option obligates the military aircraft commander to be his own air traffic control agency and to separate his aircraft from all other air traffic. It is also the aircraft commander's responsibility to ensure the appropriate military authority provides flight following and assumes responsibility for search and rescue.

FLIGHT PLAN CONSIDERATIONS

Finally, there are those nagging questions about your flight plan. Flights planning to operate "due regard" normally file a normal flight plan with a delay indicating the point and time the mission plans to go "due regard" or "operational." Prior to going "due regard," it's important to make the appropriate arrangements with ATC for your return. Your clearance on the ground will only be to the delay point. Once you reach your clearance limit and tell ATC you are going "due regard," you will lose your IFR clearance and your flight plan will drop out of the system unless you coordinate with ATC to keep it open. If feasible, tell ATC when and where you would like to pick up your IFR clearance again and coordinate a "pop-up" frequency if you'll reappear in another sector. Declaring "due regard" out of the blue will cause you to lose your IFR flight plan as well as ATC's flight-following function. A little coordination before going "due regard" can save you a lot of headaches later.

APPLY THE RULES TO THIS FLIGHT THAT ACTUALLY HAPPENED

Now that you know everything there is to know about "due regard," let's apply what you've learned to a flight that happened not too long ago. A KC-135 crew was scheduled to re-deploy back to Loring AFB after a fun-filled three-week trip to Puerto Rico. Before heading up the east coast of the U.S., the crew was scheduled to refuel some local fighters. As usual, the receivers needed more gas than scheduled, so the tanker offloaded more fuel than planned and then headed north back to Loring. As they flew up the Atlantic just off of the east coast, ATC gave them a final altitude lower than what the crew had planned. After some quick calculations, the tanker crew realized they would not be able to make it back to Loring with the fuel they had remaining. After ATC denied numerous requests for a higher altitude, the aircraft commander declared "due regard," quit talking to ATC, and climbed up to the higher altitude he had requested. At their new altitude, the tanker disrupted the international arrival flow from Miami all the way up to New York. Fortunately, the aircraft was close enough to the east coast that ATC could see them on radar and de-conflict their flight from all of the oceanic arrivals. When the wing commander met the crew back at Loring, do you think he congratulated the crew or not?

WAS THE MISSION CONDUCTED IN INTERNATIONAL AIRSPACE?

Let's look at the facts. First of all, was the tanker in international airspace? Yes, the flight was conducted more than 12 miles from the east coast of the U.S. in international airspace.

WHICH EXEMPTION FROM ICAO RULES DID HE OPERATE UNDER?

Next, did the aircraft's mission qualify as one of the exemptions from flying under ICAO rules? The answer to this question is "no." Not having enough fuel to make it back home is not a military contingency, a classified mission, or a political necessity. A more appropriate avenue may have been to declare "minimum fuel" or to land at another base along the east coast and refuel.

WHAT TYPE OF FLIGHT CONDITION WAS REQUIRED FOR HIM TO FLY DUE REGARD?

Since the aircraft commander did declare "due regard," did he satisfy the other conditions required to fly "due regard?" Yes, as long as he remained in VMC. He was in controlled airspace, he was not in contact with a surface facility providing him with separation, his on-board radar was not sufficient to separate himself from other traffic, so the only way the tanker could fly "due regard" legally was to remain in VMC.

DID SOMEONE PICK UP THE FLIGHT FOLLOWING FUNCTION?

Finally, did the aircraft commander ensure the appropriate military authority assumed responsibility for flight-following and search and rescue? The answer to this question is "probably." Both the departure and arrival bases knew the aircraft's itinerary and would have started looking for the flight had it not arrived as scheduled.

CONCLUSION

I hope this article has helped clarify some of the questions surrounding "due regard." The concept of "due regard" is complex and requires careful planning to ensure successful results. Used wisely, it allows us to accomplish our world-wide mission, but used poorly, "due regard" creates confusion and endangers many lives and aircraft. Fly safe, fly smart. SIDEBAR:

Sources of information about "Due Regard" and ICAO procedures:

  • DoD Directive 4540.1, Use of Airspace by U.S. Military Aircraft and Firings Over the High Seas
  • AFI 11-206, General Flight Rules
  • FLIP General Planning
  • FLIP Area Planning
  • Foreign Clearance Guide
  • FAA Order 7110.65, Air Traffic Control