Gallagher 2005

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2005

Dear Colonel Gallagher,

This letter responds to your request for a legal interpretation dated December 7, 2003. You specifically ask for clarification on the alternate aiip01t and fuel requii·ements codified in 14 C.F .R. § 9 1.167. We begin by reciting the info1mation that you provided as background for your question, after which we will respond to your question.

ill your letter you contend that "a careful reading of section 9 1.167 could lead a person to believe that they are only required to have sufficient fuel to land at the destination aiipo1t ." You rely on the language of the regulation to reach this conclusion because it requires sufficient fuel to complete the flight to the destination aiipo1t, but only requii·es "sufficient fuel to fly to the alternate aiipo1t and have 45 minutes rese1v e at n01m al cmise." We do not agree with your analysis.

Question #1:

Does section 9 1.167 requii·e a pilot operating an aii·craft under instmment flight mles (IFR) to have sufficient fuel to attempt an approach at the destination aiip01t and then fly on to the alternate aiipo1t, with 45 minutes of fuel remaining upon aITival at the alternate?

Answer # ! :

Section 9 1.1671 requii·es the pilot to fuel his all-craft with enough fuel to "land" at the destination aiiport, then fly on to the alternate and operate for 45 additional miimtes. The regulation does not specifically speak to an "attempt to land" or "attempt to approach" but it requii·es that the aii·craft have enough fuel to complete the flight to the first aiip01t of intended landing. See, 14 C.F .R. § 91.167 (a) 1 91 .167. Fuel Requirements for Flight in IFR Conditions (a) No person may operate a civil aircraft in IPR conditions unless it carries enough fuel (considering weather reports and forecasts and weather conditions) to - (1) Complete the flight to the first aitpo1t of it1te11ded landit1g;

(2) Except as provided in paragraph (b) of this section, fly from that airport to the altemate airport; and (3) Fly after that for 45 mitmtes at nonual cruising speed or, for helicopters, fly after that for 30 minutes at nom1al cruisit1g speed.

(b) Paragraph (a)(2) of this section does not apply if:

( 1) Pait 97 of this chapter prescribes a standard instrument approach procedm·e to, or a special itistmment approach procedm-e has been issued by the Admitiistrator to the operator for, the first airpo1t of it1te11ded landing; and (2) Appropriate weather repo1t s or weather forecasts, or a combination of them, indicate the following: (i) For aircraft other than helicopters. For at least 1 hour before and for 1 hom· after the estituated titue of a11ival, the ceilit1g will be at least 2,000 feet above the aitpo1t elevation and the visibility will be at least 3 statute niiles. (ii) For helicopters. At the estiniated titue of an-ival and for 1 hem- after the estiniated titue of an-ival, the ceiling will be at least 1,000 feet above the aitpo1t elevation, or at least 400 feet above the lowest applicable approach mininia, whichever is higher, and the visibility will be at least 2 statute niiles

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(1). Webster's dictionary defines the word "complete" to mean: "brought to an end or to a final or intended condition.”2 Thus, to "complete the flight", as used in this rule, means the aircraft has enough fuel to be flown to, and land at, the first airport of intended landing. Having fueled the aircraft with only enough fuel to "attempt an approach" would fall short of the regulatory requirement. A pilot whose aircraft suffers fuel exhaustion prior to reaching either the destination or alternate airport, or who must declare an emergency for an expedited landing (due to low fuel), can be found to have failed to exercise "good judgment," which could result in a violation of section 91.13, for the careless or reckless operation of the aircraft.3 See, Administrator v. Ostgrove, NTSB Order No. EA-4916 at 22 (2001).

Question #2:

When would it be legal to continue onto the destination when that means that the pilot would no longer be able to reach his alternate airport and land within 45 minutes?

Answer #2:

A pilot would be acting reasonably in deciding to land the aircraft at the destination airport if, before commencing the approach, he confirms that the reported weather continues to be above minimums. As such, the reported weather upon arrival but before commencing the approach would need to be at least 2,000 feet above the airport elevation and visibility of at least 3 statute miles, and no other factors, such as runway closures, interfere with a safe landing. The pilot-in-command is responsible for the safe operation of the aircraft. See, 14 C.F.R. § 91.3. Part of the pilot-in-command's duty is to properly preflight the aircraft in accordance with the provisions of section 91.103.4 A proper "preflight" requires that, before beginning an 1FR flight, the pilot-in-command becomes familiar with weather reports, forecasts, fuel requirements and alternatives available if the planned flight cannot be completed. Id. The pilot's failure to correctly interpret or translate weather information and aircraft performance data into the correct amount of fuel required for flying time can be a violation of section 91.13. Ostgrove, NTSB Order No. EA-4916 at 21. Therefore, under the circumstances (e.g., weather below minimums) it would be illegal to land at the destination airport and if the pilot nonetheless makes the attempt and thereby wastes the available fuel for landing at the alternate airport, the pilot could be charged with operating the aircraft in violation of the regulations. Webster's Third New International Dictionary, Unabridged. Merriam-Webster, 2002. http://unabridged merriamwebster.com (May 27, 2004).

3 91.13 CARELESS OR RECKLESS OPERATION (a) Aircraft operations for the purpose of air navigation. No person may operate an aircraft in a careless or reckless manner so as to endanger the life or property of another.

(b) Aircraft operations other than for the purpose of air navigation. No person may operate an aircraft, other than for the purpose of air navigation, on any part of the surface of an airport used by aircraft for air commerce (including areas used by those aircraft for receiving or discharging persons or cargo), in a careless or reckless manner so as to endanger the life or property of another.

a 91.103 PREFLIGHT ACTION Each pilot-in-command shall, before beginning a flight, become familiar with all available information concerning that flight. This information must include (a) For a flight under IFR or a flight not in the vicinity of an airport, weather reports and forecasts, fuel requirements, alternatives available if the planned flight cannot be com-pleted, and any known traffic delays of which the pilot-in-command has been advised by ATC; (b) For any flight, runway lengths at airports of intended use, and the following takeoff and landing distance information:

(1) For civil aircraft for which an approved Airplane or Rotorcraft Flight Manual containing takeoff and landing distance data is required, the takeoff and landing distance data contained therein; and (2) For civil aircraft other than those specified in paragraph (b)(1) of this section, other reliable information appropriate to the aircraft, relating to aircraft performance under expected values of airport elevation and runway slope, aircraft gross weight, and wind and temperature.

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Question #3:

Is there a gray area in the regulations that would allow a pilot to attempt to land at the destination airport if one extreme is when the destination airport conditions are such that an alternate is no longer required and the other extreme is that both airports have conditions that would allow the pilot to land? Answer #3:

The regulations are written to provide a standard by which pilots may operate their aircraft safely. Without a clear definition of what you mean by "gray area" we cannot give you a concrete answer.

We hope that this interpretation has been helpful. Please feel free to contact us if you have additional questions.

Sincerely,

Rebecca MacPherson Assistant Chief Counsel Regulations Division, AGC-200