A. Historically, public aircraft
have been exempt from many of the requirements in FAA regulations applicable
to civil aircraft, including those governing aircraft airworthiness and
flightcrew certification. The passage of Public
Law 103-411 (the Independent Safety Board Act Amendment of 1994) made a major
change in the definition of “public aircraft.” This change caused many former
public aircraft operations to become subject to the regulations governing civil
aircraft and pilot certification.
B. The general purpose of the
law, as reflected in legislative history, is to extend FAA regulatory oversight
to some government aircraft operations. In part, Congress determined that government
owned aircraft, which operate for commercial purposes or engage in transport
of passengers, should be subject to the regulations applicable to civil aircraft.
The law, (with certain exceptions) preserved as public aircraft operations,
those related to the performance of certain governmental functions and, further,
allowed public agencies to receive reimbursement from other public agencies
for some operations conducted in response to significant and imminent threats.
The FAA was also authorized to grant exemptions for operations whose status
had changed as a result of the new law.
DEFINITIONS. The status of an aircraft as a “public aircraft” or
“civil aircraft” depends on its use in government service and the type of operation
that the aircraft is conducting at the time. Rather than speaking of particular
aircraft as public or civil, it is more accurate to speak of the operation as
public or civil. For instance, an aircraft used in the conduct of a search and
rescue mission in the morning can be operating in the performance of an inherent
governmental function while carrying a rescue team, and is a public aircraft
operation. That same aircraft may be operating in the afternoon carrying the
governor of a State to a meeting and would then lose its public aircraft status
and would be considered a civil aircraft operation.
A. The term “search and rescue”
is frequently used in context with the term “public aircraft.” Rescue operations
are most frequently conducted with aircraft equipped with external devices that
would not be authorized for operations on civil aircraft (i.e., rappelling anchors).
Search operations and the subsequent rescue of persons that may be injured in
remote or inaccessible areas are conducted with aircraft that do not meet the
regulatory requirements for Class D external-load operations but are used in
an emergency where the situation may be determined as “life-critical.” The Advisory
00-1.1, Government Aircraft Operations, further defines the term as follows:
search and rescue is a term meaning aircraft operations that are flown to locate
people who cannot be located from the ground. The term includes operations where
the aircraft is indispensable to the search, or is the only feasible means of
reaching the victim. Victims would be considered to be “associated with” the
search and rescue operation. The term “search and rescue”
does not include routine medical evacuation of persons due to traffic accidents
and other similar incidents or hospital-to-hospital patient transfers.
B. Medical evacuation, as a
general matter, is not considered a government function unless:
1) The nature of the operation requires
the use of an aircraft with special configurations, which may not be eligible
for a standard airworthiness certificate,
2) The victim cannot be accessed by
3) Insufficient number of properly
certified and equipped civil aircraft operating under the appropriate rule,
are available to complete the mission, or
4) Other, similar non-routine factors
C. Even when the above listed
factors are present, the public aircraft operator may be well advised to fully
document that nature of the mission and the specific reason(s) for which a public
aircraft operation was requested. In addition to providing a record of the operation,
such documentation may mitigate or reduce legal liability or alleviate the threat
of litigation itself.
D. Operators of government-owned
aircraft that transport crewmembers or other persons (for other than commercial
purposes) whose presence is required to perform, or is associated with the performance
of a governmental function (i.e., firefighting, search and rescue, law enforcement,
aeronautical research, or biological or geological resource management) would
still be considered a public aircraft operation. In each case, when these persons
are transported the use of the aircraft must be necessary to perform the mission.
E. The FAA has consistently
held that the term “for commercial purposes” is synonymous with “compensation
or hire.” It is not necessary that a flight be conducted for monetary profit
to be considered to be operated for compensation or hire. Even though there
is only “cost reimbursement” from one unit of government to another, this reimbursement
constitutes “compensation.” If however, the units of government share a common
treasury, and the transfer of funds simply between government elements or where
the reimbursement is simply an accounting of transactions within the same unit
of government, these operations are not considered, for commercial purposes.
See Public Law 106-181 for current definition of “for commercial purposes”.
F. Government agencies may conduct
both public and civil aircraft operations with the same aircraft. However, the
operator will be required to maintain the aircraft in accordance with the appropriate
regulations applicable to civil aircraft operations.
G. If one State agency reimburses
another agency of the same State for the conduct of operations on its behalf
using a State aircraft and the units share a common treasury, the operation
is not considered to be “for commercial purposes.”
H. If a federal agency reimburses
a State agency for conducting aircraft operations on the
former’s behalf using State-owned aircraft, the
operation would be considered to be “for commercial purposes.” Generally this
operation would be a civil aircraft operation unless the federal agency certified
that the operation was necessary to respond to a significant and imminent threat
to life or property (including natural resources) and that no service by a private
operator was reasonably available to meet the threat. In that case and with
federal agency certification the operation would be considered a public aircraft
NATURE. The status of an aircraft as public aircraft or civil aircraft
depends on the type of operation that the aircraft is conducting at the time.
Rather than speaking of particular aircraft as public aircraft or civil aircraft,
it is more precise to speak of particular operations as public aircraft or civil
aircraft in nature.
Example: An aircraft owned by a state government is used in
the morning for a search and rescue mission that meets the statutory definition
of public aircraft in all respects. For the search and rescue operation, the
aircraft is a public aircraft. Later that same day, however, when the aircraft
is used to fly the governor of the state from one meeting to another, the aircraft
loses its public aircraft status and is instead a civil aircraft.
OF KEY TERMS. The following are various words, phrases, and clauses
used in the FAA definition of a Public Aircraft.
Presence Is Required To Perform.” This phrase means either a crewmember
or a non-crewmember who will participate in carrying out the governmental function.
B. “Associated With the Performance
of….” This clause connotes a non-crewmember support person who, while not essential
to performance of the governmental function, is expected to contribute to the
effectiveness of those whose presence is required to perform the function.
C. “A Governmental Function
Such as….” Not all activities conducted by government agencies are considered
“governmental functions” within the meaning of the new definition. The accepted
functions include “firefighting, search and rescue, law enforcement, aeronautical
research, or biological or geological resource management” or other comparable
functions. In each instance, the use of an aircraft must be necessary to perform
the function. In some cases, training flights may be considered acceptable,
where the training is being performed aboard the aircraft and the aircraft is
necessary for the performance of the training. The FAA will permit a government
function that involves transportation of passengers to fall within the exemption
only if it is “indispensable to the timely execution of a government function.”
The following are examples of governmental functions:
1) Firefighting. This term includes
the drop of fire retardants, water, and smoke jumpers. It also includes the
transport of firefighters and equipment to a fire or to a base camp from which
they would be dispersed to conduct the firefighting activities.
2) Search and Rescue. Search and rescue
is a term of art meaning aircraft operations that are flown to locate people
who cannot be located from the ground. The term includes operations where the
aircraft is indispensable to the search, or is the only feasible means of reaching
the victim. Victims would be considered to be “associated with” the search and
rescue operation. The term “search and rescue” does not
include routine medical evacuation of persons due to traffic accidents and other
3) Law Enforcement. Law enforcement
operations that employ hovering helicopters with searchlights and law enforcement
personnel ready for immediate on-the-spot deployment are public aircraft operations.
As long as reimbursement is from a common treasury, the transportation of prisoners
falls within the category “law enforcement” and is a public aircraft operation.
4) Aeronautical Research. Aeronautical
research (conducting flights to determine aircraft performance in various operating
environments) that requires the presence on board the research aircraft of engineers
and technicians who are not part of the crew is a public aircraft operation.
5) Biological and Geological Resource
Management. This term means biological and geological resource management that
requires the presence of scientific and technical passengers to gather information
that can only be gathered by direct observation from the air.
D. Cost Reimbursement Agreement.
This term means an agreement, either verbal or written, between two separate
units of government, whereby one unit operates an aircraft on the others behalf
and is reimbursed by the other for the cost of the operation. If the two agencies
share a common treasury, the operation is not “for commercial purposes.”
E. Unit of Government. This
term means a government. The singular characteristic of a unit of government
in this context is its common treasury. This interpretation permits Economy
Act reimbursement among federal agencies without the need for compliance with
the Title 14 of the Code of Federal Regulations
(14 CFR) Part 121,
14 CFR Part 125, or
14 CFR Part 135. However, should federal agencies ever receive reimbursement
from outside the federal government, they would need to ensure that they are
in compliance with either 14 CFR Parts
135, depending on the type of aircraft operation.
F. Significant and Imminent
Threat. “Significant and imminent threat to life or property (including natural
resources),” means a situation in which the authority responsible for responding
to the threat has determined that serious injury, death, or significant damage
to property may occur before land- or water-borne assistance can be deployed
to counter the threat effectively. It is not expected that FAA inspectors will
challenge significant and imminent threat determinations made by units of government.
G. No Service by a Private Operator
Reasonably Available. “No service by a private operator was reasonably available
to meet the threat,” means that no private operator is able to deliver an aircraft
capable of performing the minimum tasks by the latest time at which such aircraft
would provide an effective response, as determined by the authority charged
to respond to the threat. It is not expected that FAA inspectors will challenge
determinations made by units of government that no private operator was reasonably
available to meet the threat.
H. . The Administrator or the
Administrator’s delegate may not grant an exemption to a unit of government
without certifying that the FAA Safety Team (FAASTeam
) program of the unit of government is “effective and appropriate to
ensure safe operations of the type of aircraft operated by the unit of government.”
135. Economic Authority. On
April 17, 1995, the Department of Transportation (DOT) issued Order 95-4-28
pertaining to the matter of Government Aircraft Owners and Operators exemption
from Title 49 of the United States Code (U.S.C.) § 41102. The Order states that
“we grant an exemption from the requirements of 49 U.S.C § 41102 to the extent
necessary to allow all owners and operators of government aircraft to provide
not-for-hire, cost reimbursable transportation incidental to official government
business.” As a result Government aircraft operators are not required to receive
or apply for DOT economic authority.
CERTIFICATION. Government aircraft operations that are no longer
eligible for public aircraft status must meet civil airworthiness standards
for certification of civil aircraft. This includes the aircraft’s engines and
propellers as well as the aircraft as a whole. All civil aircraft must have
a current airworthiness certificate to operate in the national airspace system
NOTE: An operator of an aircraft operated in public aircraft
status for any period of time cannot obtain a standard airworthiness certificate
without showing that the aircraft meets all the criteria for that airworthiness
certificate as prescribed by the regulations. Making such a determination may
be difficult when the aircraft has not been maintained, altered, or inspected
in accordance with the regulations. To facilitate receiving a standard airworthiness
certificate, the aircraft records should indicate, among other requirements,
that the aircraft has been maintained according to the manufacturer’s instructions,
and that any modifications to the aircraft either were removed or approved by
Prior to airworthiness certification, the type design must be certificated by
the FAA. Title 49 United States Code (U.S.C), § 44705 (formerly § 603(c) of
the FA Act of 1958) makes a type certificate a prerequisite for issuance of
airworthiness certificates. Each government operator who wishes to determine
the eligibility of its aircraft for civil operations must contact the responsible
geographic aircraft certification office (ACO) for assistance in seeking either:
approval for aircraft that has been type-certificated in the past
approval of aircraft that has been operated in the past under public aircraft
status without a type-certificate
NOTE: For aircraft to be certificated in the restricted category,
see the Aircraft Certification Service (AIR-100) for current guidance.
PREVIOUSLY TYPE-CERTIFICATED. If the aircraft was originally built
to an FAA type-certificate, it will be necessary for the ACO to review the type-certificate
data and make a comparison of the aircraft’s current design and condition. The
applicant will provide the FAA ACO with technical information necessary to assist
in the following:
of type design for any engineering changes or modifications
Listing of replacement parts and technical data on
the replacement parts
of Airworthiness Directives (AD) that have applied
of previous operating regimes
An application of later regulatory amendments or
special conditions for any changes found necessary to establish current airworthiness
standards for safe design (if applicable)
NOTE: It is important that the applicant provide accurate records
of any major and or minor changes necessary to establish the current design.
The applicant should update all maintenance manuals as necessary. If there has
been a substantial change in the type design, e.g., in the configuration, power,
power limitations, speed limitations, or weight that have proven so extensive
that a substantially complete investigation of compliance with the applicable
regulations is required, the owner will be required to apply for a new type-certificate.
WITH NO PRIOR CERTIFICATION. It is unlikely that the FAA will be
able to grant exemptions from type-certification and airworthiness requirements
for aircraft that have no history of civil certification. However, if a government
operator still wishes to apply, it should file an application for type-certificate
on FAA Form 8110.12. The applicant must submit for approval all type design
data for the aircraft, including the aircraft’s engines and propellers, to the
ACO in its geographic area. The application must be accompanied by a three-view
drawing and available basic data so that a preliminary regulatory certification
basis may be established. The applicable airworthiness certification regulations,
14 CFR Parts
35, etc., will be those that are in effect on the date of application for
the certificate, unless otherwise noted in the regulations. The applicant must
make all inspections and tests available to allow the FAA to conduct a complete
certification compliance program, including all flight and ground tests, inspections,
and test analyses necessary to determine compliance with the applicable requirements
of the 14 CFRs.
CERTIFICATION. Before a standard airworthiness certificate can be
issued, the applicant must show that:
The aircraft conforms to its approved type design
and is in condition for safe operation
Any alterations were accomplished in accordance with
an approved Supplemental Type-Certificate (STC) or other FAA-approved data,
such as a field approval as reflected by the issuance of an FAA Form 337, “Major
Repair or Alteration”
All applicable ADs have
been complied with concerning the aircraft in question
· If altered
while in another category, the aircraft continues to meet, or has been returned
to, its approved type design configuration and is
in a condition for safe operation
FOR OBTAINING AN AIRWORTHINESS CERTIFICATE. Applicants interested
in obtaining an airworthiness certificate must follow the following procedures.
A. Applicants are required to
submit a properly executed “Application for Airworthiness,” FAA Form 8130-6,
and any other documents called for in 14 CFR Parts
45 for certification. An applicant may obtain an FAA Form 8130-6 from the
local manufacturing inspection district office (MIDO) or FSDO. The applicant
must have completed and signed the appropriate sections prior to submitting
it to the FAA.
B. The applicant is required
to make available for inspection and review the aircraft, aircraft records,
and any other data necessary to establish conformity to its type design.
C. The applicant must properly
register the aircraft in accordance with
14 CFR Part 47 , “Aircraft Registration.”
D. The applicant is also required
to show that the aircraft complies with the noise standards of 14 CFR §§
14 CFR Part 36, or
14 CFR Part 91, as appropriate. This may be demonstrated through the use
of data. Also, the applicant is required to show that the aircraft’s fuel venting
and exhaust emission systems comply with the requirements of
14 CFR Part 34. In addition, the applicant must show the aircraft meets
the applicable passenger emergency exit requirements of 14 CFR §
21.183(f) and Special Federal Aviation Regulation (SFAR) 41.
E. During the course of the
certification process the FAA will review records and documentation to the extent
necessary to establish that:
1) All of the required records and
documentation are provided for the aircraft; i.e., an up-to-date, approved flight
manual; a current weight and balance report; equipment list; maintenance records;
FAA-accepted Instructions for Continued Airworthiness (ICAW) and/or FAA-acceptance
maintenance manual(s) (MM); and any other manuals required by 14 CFR §§
35.4. These documents must be in the English language.
2) The applicant should ensure that
the appropriate markings are present in accordance with
14 CFR Part 45 . The applicant should make available the Type-certificated
Data Sheets (TCDS), aircraft specification, or aircraft listing that is applicable.
3) The inspection records and technical
data should reflect that the aircraft conforms to the type design, and all required
inspections, including those provided for in 14 CFR §
21.183(d)(2), which provides for a 100 hour inspection, as described in
14 CFR §
43.15 and Appendix D. The applicant must also show that the tests the aircraft
has been subjected to have been satisfactorily completed, the records completed,
and reflect no unapproved design changes.
4) The aircraft has been flight tested,
if required. If it has not been flight tested, the FAA may issue a special airworthiness
certificate as provided for in 14 CFR §§
21.191(b). The flight test must be recorded in the aircraft records in accordance
with 14 CFR §
91.417(a)(i) as time in service as defined in 14 CFR Part
1. Aircraft assembled by a person other than the manufacturer (e.g., a dealer
or distributor) must have been assembled and, when applicable, flight tested
in accordance with the manufacturer’s FAA-approved procedures.
5) Large airplanes, turbojet, or
turbopropeller multiengine airplanes must comply
with the inspection program requirements of 14 CFR §
91.409(f) or other 14 CFRs referenced therein.
A supplemental structural inspection program is also required for certain large
transport category airplanes. Reference
AC 91-56, “Supplemental Structural Inspect ion Program for Large Transport
F. Inspection of the Aircraft.
Aircraft submitted by the applicant for inspection will be inspected, by an
airworthiness inspector for the following:
1) The nationality and registration
marks and identification plate should be displayed and marked in accordance
14 CFR Part 45. The information presented should agree with the application
for airworthiness certification.
2) All equipment, both required and
optional, should be properly installed and listed in the aircraft equipment
3) Instruments and placards should
be located in the appropriate places, installed, and properly marked in the
4) All applicable
ADs must have been complied with and appropriately
5) The aircraft should conform to its
approved U.S. type-certificate and should be in a condition for safe operation.
6) All aircraft systems should have
been satisfactorily checked for proper operation. The operation of the engine(s)
and propeller(s) should be checked in accordance with the aircraft manufacturer’s
G. If it is determined that
the aircraft meets the requirements for the certification requested, the FAA
airworthiness inspector or authorized designee will:
an aircraft log book entry per paragraph 237(a) of FAA
8130.2C entitled “Airworthiness Certification of Aircraft and Related Products”
FAA Form 8100-2, “Standard Airworthiness Certificate”
sections V and VIII of FAA Form 8130-6, as appropriate
review, and route the certification files as appropriate
H. If the aircraft does not
meet the requirements for the certification requested and the Airworthiness
Certificate is denied, the applicant will receive a letter stating the reason(s)
for denying the certificate. A copy of the denial letter will be attached to
the application and forwarded to the FAA Aircraft Registry to be made a part
of the aircraft record.
The FAA Administrator has the authority, in accordance with
14 CFR Part 11, to grant exemptions to units of government, whose aircraft
operations have lost their public aircraft status, if certain requirements are
met. Exemptions will be granted only if it is clearly in the public interest.
The Administrator may issue an exemption, to a unit of government, only if:
A. The Administrator certifies
that the FAASTeam program of the unit of government
is effective and appropriate to ensure safe operations of the type of aircraft
operated by the unit of government.
B. The Administrator finds that
granting the exemption is necessary to prevent an undue economic burden on the
unit of government. To show undue economic burden, the petitioner for exemption
should submit the following information with their petition for exemption:
The purpose and duration of the aircraft operations
for which exemption is sought
The estimated cost of bringing the petitioner’s aircraft
operations into compliance with civil aircraft requirements
The estimated cost of obtaining the same aircraft
operations from a private operator. The petitioner should also submit certification
of the following types of information, as appropriate:
That the petitioner has made a reasonable search
and solicitation for services that would meet the petitioner’s needs and that
no such services were available
That the petitioner lacks the resources to pay for
the required services
That the petitioner, by acquiring the services of
a private operator, would incur additional expenses resulting from existing
aircraft lease payments, mortgages, prorated cost sharing agreements, or other
That adequate service by private operators was unavailable
at less than 110 percent of reasonable rates. Reasonable rates are those that
are normally available and paid by the petitioner when doing business with private
That unique circumstances, such as remote operations,
are present which require special aircraft or pilot skills that are not available
except at costs exceeding 110 percent of the costs the petitioner would incur
when engaging in a similar operation in the area
NOTE: In the interest of administrative efficiency, the Administrator’s
authority to grant exemptions to units of government has been delegated to the
Director, Flight Standards Service, and the Director, Aircraft Certification
AIRCRAFT OPERATOR SURVEILLANCE. Government aircraft operators, holding
any type of FAA certification, will be included in the normal surveillance activities
such as, spot inspections of the aircraft and aircraft records. This includes
any aircraft exclusively leased to the Federal government. Any aircraft or operation
certificated by the FAA is subject to this surveillance regardless of whether
they are operating as “public” or “civil.” For example, if an operator’s operation
is considered “public” or “private” and the hold an airworthiness certificate,
their maintenance records are eligible for review. If you encounter an operator
who states they are operating under the “public” status and you have questions
concerning that operation, contact your regional public aircraft coordinator
NOTE: Government-owned aircraft operators who are conducting
public aircraft operations must be included in the FSDO’s
annual planned surveillance activities to ensure that their status remains unchanged.
A. It is perhaps easier to give
examples of operations that do NOT conform to public aircraft operations than
to describe public aircraft operations specifically. The aviation safety inspector
(ASI) should be thoroughly familiar with the provisions of the
AC 00-1.1. A few examples of prohibited operations under the Public Law
are available in this document, but it is difficult to determine operations
that are permitted.
B. Generally speaking, a public
entity that responds to a situation that might involve transport by air may
NOT operate as a public aircraft operation IF:
1) The operation can be completed by
another means of transport (road ambulance) or civilian/hospital air medical
transport (Lifeguard helicopter). An example would be a traffic accident in
an urban or downtown setting, on roads easily accessible to all vehicles.
2) The transport operation has been
scheduled in advance such as a patient transfer from hospital-to-hospital. A
transport operation conducted as a routine flight, scheduled in advance can
easily be accommodated by a civil operator and therefore, would not qualify
as a public aircraft operation.
3) A patient (or their insurance underwriter)
is expected to pay for services that include the transport of a patient from
an accident scene to a hospital or clinic. Since commercial action is involved,
this operation would not qualify as a public aircraft operation.
4) A public entity is reimbursed for
services rendered and that reimbursement is NOT from a common treasury (i.e.,
a transfer of funds from one element of government to another element within
that same government). In this case, if the federal government reimburses a
local government for mosquito spraying operations, the operation could be considered
“commercial” in nature.
5) The transport of a rescued person
from a search and rescue mission to a hospital UNLESS no other means of transport
is available and the mission can only be accomplished from the air.
OF THE ASI.
A. Congress mandated that the
FAA provide regulatory oversight of some government aircraft operations. The
role of the FAA includes surveillance and enforcement actions against government
aircraft operators that operate for commercial purposes or engage in the transport
B. One of the more difficult
issues surround the phrase, “No service by a private
operator was reasonably available.” This justification is frequently used at
the dispatch centers when emergency response calls are received. The key phrase
that needs to be evaluated is that of, “no private operator was available and
capable of responding ... in a timely manner.” Dispatch organizations need to
be made aware of their responsibility to the public and the government when
providing a controlling and coordinating service.
C. Operators of government-owned
aircraft holding any type of FAA certification will be included in the normal
surveillance activities such as spot inspections of the aircraft and aircraft
records. This includes any aircraft exclusively leased to the Federal government.
Any aircraft or operation certificated by the FAA is subject to this surveillance
regardless of whether they are acting as “public” or “civil.” For example, if
a public aircraft operation is being conducted with an aircraft that holds an
airworthiness certificate, the operator’s maintenance records are subject for
review. If an inspector encounters an operator who states they are operating
under “public” status and questions arise concerning that operation, the regional
public aircraft coordinator should be contacted for assistance. Government-owned
certificated operators who are conducting public aircraft operations must be
included in the FSDOs annual planned surveillance
activities to ensure that their status remains unchanged.
D. When an ASI has been made
aware of instances where public aircraft operators are providing services that
are civil aircraft operations either due to their commercial nature or the type
of operation being conducted the inspector should bring the issue to an immediate
supervisor for further action. Initial contacts should be made with the Public
Aircraft Representative in the regional office and coordinated with regional
counsel and General Aviation and Commercial Division, Operations and Safety
Program Support Branch, Commercial Operations Branch (AFS-820).
E. It is not within the FAA’s
purview to make direct contacts with agencies providing emergency dispatch services;
however, the FSDO manager or a person designated by the regional office may
be in a position to contact the supervising State agency, State Aviation Department,
or county administrators. During a contact with a supervising agency, it would
be appropriate to discuss violations of PL 106-181.
Paragraphs 3-541 through 3-555.