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> U.S. Department
>
> of Transportation
>
> **Federal Aviation**
>
> **Administration**

James W. Johnson

Managing Attorney

Air Line Pilots Association, International

535 Herndon Parkway

P.O. Box 1169

Herndon, Virginia 20172-1169

Dear Mr. Johnson:

This letter is in response to your July 21, 2005 letter concerning the
amendment of a dispatch or flight release. As discussed below, under
certain circumstances, there is a requirement to add an alternative
airport or fuel stop to a dispatch or flight release while enroute. In
addition, it is possible the FAA would consider a pilot careless or
reckless for continuing to an airport without enough fuel to fly to an
alternative airport.

[Factual Summary]{.underline}

An airplane operating under part 121 domestic rules is dispatched to a
destination airport without an alternative airport, because the weather
forecasted at the destination airport is clear enough that no
alternative airport is required.[^1] The airplane is loaded with the
minimum required fuel to get to the destination airport.[^2] After
departure, weather at the destination airport deteriorates to the point
that an alternative airport would have been required, if the airplane
had not yet departed. At this time, weather at the destination airport
is still above landing minimums, so the operator maintaining operational
control over the flight, instructs the pilot to continue to the original
destination. When the flight arrives at the destination airport, the
weather no longer meets landing minimums so the pilot must execute a
missed approach. The pilot no longer has enough fuel to safely divert to
another airport.

[Applicable Regulations]{.underline}

14 CFR 121.601 Aircraft dispatcher information to pilot in command:
Domestic and flag operations.

\(a\) The aircraft dispatcher shall provide the pilot in command all
available current reports or information on airport conditions and
irregularities of navigation facilities that may affect the safety of
the flight.

. . . . .

\(c\) During a flight, the aircraft dispatcher shall provide the pilot
in command any additional available information of meteorological
conditions (including adverse weather phenomena, such as clear air
turbulence, thunderstorms, and low altitude wind shear), and
irregularities of facilities and services that may affect the safety of
the flight.

14 CFR 121.619 Alternative airport for destination: IFR or over-the-top:
Domestic operations.

\(a\) No person may dispatch an airplane under IFR or over-the-top
unless he lists at least one alternate airport for each destination
airport in the dispatch release. When the weather conditions forecast
for the destination and first alternate airport are marginal at least
one additional alternate must be designated. However, no alternate
airport is required if for at least 1 hour before and 1 hour after the
estimated time of arrival at the destination airport the appropriate
weather reports or forecasts, or any combination of them, indicate---

\(1\) The ceiling will be at least 2,000 feet above the airport
elevation; and

\(2\) Visibility will be at least 3 miles.

14 CFR 121.627 Continuing flight in unsafe conditions.

\(a\) No pilot in command may allow a flight to continue toward any
airport to which it has been dispatched or released if, in the opinion
of the pilot in command or dispatcher (domestic and flag operations
only), the flight cannot be completed safely; unless in the opinion of
the pilot in command, there is no safer procedure. In that event,
continuation toward that airport is an emergency situation as set forth
in §121.557.

14 CFR 121.639 Fuel supply: All domestic operations.

No person may dispatch or take off an airplane unless it has enough
fuel---

\(a\) To fly to the airport to which it is dispatched;

\(b\) Thereafter, to fly to and land at the most distant alternate
airport (where required) for the airport to which dispatched; and

\(c\) Thereafter, to fly for 45 minutes at normal cruising fuel
consumption or, for certificate holders who are authorized to conduct
day VFR operations......

14 CFR 121.647 Factors for computing fuel required.

Each person computing fuel required for the purposes of this subpart
shall consider the following:

\(a\) Wind and other weather conditions forecast.

\(b\) Anticipated traffic delays.

\(c\) One instrument approach and possible missed approach at
destination.

\(d\) Any other conditions that may delay landing of the aircraft.

[Questions]{.underline}

You asked the following questions:

\(1\) Is there any requirement in the FARs that would require an
alternate airport be added to the original flight release while enroute
if the weather requires it or that requires a fuel stop if there is not
sufficient fuel to safely divert to another airport?

\(2\) Would the FAA consider the pilot careless and reckless if he
continued to the destination without the necessary fuel to fly to an
alternate airport?

[Analysis]{.underline}

Before we answer your questions, it is important to note two
requirements that are designed to help prevent the situation you
describe. Compliance with these requirements should greatly reduce the
likelihood of the situation you describe. First, as you are aware,
section 121.639 prohibits the dispatch of an airplane unless it has
enough fuel to at least fly to the destination airport and enough fuel
to fly an additional 45 minutes at normal cruising fuel consumption.
Section 121.619 states if certain weather conditions are forecasted for
the destination airport, an operator must designate an alternative
airport. If an alternative airport must be designated, section 121.639
requires an operator to carry additional fuel on the airplane in order
to fly to the alternative airport. In addition, section 121.647 requires
each person computing fuel requirements for operations under part 121 to
consider several conditions. Included in these conditions are wind,
other weather conditions forecast, and any other conditions that may
delay landing of the aircraft. Given these requirements, every airplane
operated under part 121 must have at least an additional 45 minutes of
fuel at normal cruising fuel consumption. Poor weather conditions may
require an operator to carry additional fuel.

[Answer to Question 1]{.underline}

Under certain circumstances, there is a requirement to add an alternate
airport to the original flight release while enroute, if there is not
sufficient fuel to safely divert to another airport. As you are aware,
during a flight the dispatcher for a flight operated under part 121 must
provide the pilot in command with additional information of
meteorological conditions that may affect the safety of the flight.[^3]
Section 121.627(a) prohibits the pilot in command from continuing
towards any airport to which the aircraft has been dispatched if the
flight cannot be completed safely. To comply with section 121.627(a), a
pilot in command, with the assistance of the dispatcher, must continue
to monitor weather conditions at the destination airport during flight
and continue to monitor the amount of remaining fuel. If the weather
continues to deteriorate at the destination airport and the pilot knows
no alternate airport was designated, in order to safely complete a
flight, the pilot must determine whether an alternate airport should be
designated. If the pilot knows weather is deteriorating and it is
unlikely that the airplane will be able to land at the destination
airport because of weather conditions and fuel is running low, the pilot
must designate an alternate airport or a fuel stop.

[Answer to Question 2]{.underline}

The FAA may find a pilot to be careless and reckless if he continued to
a destination airport without the necessary fuel to fly to an alternate
airport. Such a finding would be highly dependant on the facts of a
particular case. As stated above, if an alternate airport is required
before departure, an airplane cannot be dispatched without carrying
enough fuel to fly to the destination airport, then to the alternate
airport, and then for another 45 minutes.[^4] Therefore, where an
alternate airport is required, there must always be enough fuel to fly
to an alternate airport. A pilot would not be the only party held to be
careless and reckless if there is not enough fuel to fly to a required
alternate airport under this scenario. As discussed above, for a part
121 operation where no alternate airport is required and (1) the pilot
and the air carrier are aware the weather at the destination airport is
deteriorating, and (2) it is clear there is not enough fuel to fly to an
alternate airport, should the weather further deteriorate beyond landing
minimums at the destination airport; the FAA probably would consider the
pilot and the air carrier to be careless and reckless for continuing to
operate the airplane to the destination airport without amending the
dispatch or flight release to add an alternate airport or a fuel stop.

These situations are highly fact-dependent and it is possible that as
the airplane gets very close to the destination airport, the weather
could suddenly change in an unforeseen manner; then the FAA could
conclude that no one is culpable.

We trust this interpretation has answered your questions. This letter
was prepared by Douglas Mullen, Attorney, reviewed by Joseph Conte,
Manager, Operations Law Branch of the Office of the Chief Counsel and
coordinated with Flight Standards Service.

Sincerely,

/s/

Rebecca B. MacPherson

Assistant Chief Counsel, Regulations Division

[^1]: See 14 CFR 121.619(a), in particular the last sentence which
    provides, in part, the following "...no alternate airport is
    required if for at least 1 hour before and 1 hour after the
    estimated time of arrival at the destination airport the appropriate
    weather reports or forecasts, or any combination of them
    indicate..."

[^2]: In the case where the weather is clear enough at the destination
    airport for 1 hour before through 1 hour after the planned landing,
    the minimum fuel required is enough to get to the destination
    airport, plus enough fuel to fly for 45 minutes at normal cruising
    fuel consumption. See 14 CFR 121.639(c).

[^3]: See 14 CFR 121.601(c).

[^4]: See 14 CFR 121.639.