Due Regard-What's That?
By Capt Kevin Jones HQ AFFSA/XOFD
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
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
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:
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
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
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
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
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.
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.
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