U.S. Department of Transportation Federal Aviation Administration Advisory Circular Subject: Public Aircraft Operations—Manned and Unmanned Date: 9/21/18 AC No: 00-1.1B Initiated by: AFS-800 Change:
1 PURPOSE OF THIS ADVISORY CIRCULAR (AC). This AC provides information to assist in determining whether government-owned or government-contracted manned and unmanned aircraft operations conducted within the territory of the United States are public or civil aircraft operations under the statutory definition of “public aircraft” in Title 49 of the United States Code (49 U.S.C.) §§ 40102(a)(41) and 40125 (the statute).
Additionally, this AC contains Federal Aviation Administration (FAA) policy pertaining to civil aircraft operators that provide contract support to government entities. The intent of this material is to better define the responsibilities of the parties to these contracts.
This AC is not mandatory and does not constitute a regulation. Nothing in this AC changes the legal requirement for public aircraft operators to comply with the statute.
2 AUDIENCE. This AC provides information for any person who engages in manned and unmanned public aircraft operations (PAO) as defined by the statute.
3 WHERE YOU CAN FIND THIS AC. You can find this AC on the FAA’s website at http://www.faa.gov/regulations_policies/advisory_circulars.
4 WHAT THIS AC CANCELS. AC 00-1.1A, Public Aircraft Operations, dated February 12, 2014, is canceled.
5 RELATED REGULATIONS:
• Title 14 of the Code of Federal Regulations (14 CFR).
• Title 49 U.S.C. §§ 40102(a)(41) and 40125.
6 RELATED MATERIAL (current editions). AC 120-16, Air Carrier Maintenance Programs.
7 BACKGROUND.
7.1 Statutory Criteria. PAO are limited by the statute to certain government operations within U.S. airspace. Although these operations must continue to comply with certain general operating rules, including those applicable to all aircraft in the National Airspace System (NAS), other civil certification and safety oversight regulations do not apply to these operations. Accordingly, most aspects of PAO are not subject to FAA oversight.
7.2 Considerations. Whether an operation qualifies as a PAO is determined on a flight-by-flight basis, under the terms of the statute. The considerations when determining PAO are the ownership or exclusive lease of the aircraft, the operator of the aircraft, the purpose of the flight, and the persons on board the aircraft.
7.3 Civil Aircraft Operation. Any operation that does not meet the statutory criteria for a PAO is a civil aircraft operation and must be conducted in accordance with all FAA regulations applicable to the operation. The public aircraft statute sets forth criteria that determine whether a government operation qualifies as a PAO.
7.4 Statutory Provisions. Title 49 U.S.C. § 40102(a)(41) provides the definition of “public aircraft” and § 40125 provides the qualifications for public aircraft status.
These statutory provisions provide the legal basis for operation of public aircraft in the United States (see Appendix A, Public Aircraft Statute). The FAA recognizes that these statutory provisions may be difficult to apply to aircraft operations conducted by civil contractors for government entities. This AC reiterates the FAA’s policy for civil operators contracting with government entities and defines the responsibilities of the parties affected by these contracts (see Figure 1, Decision Flowcharts for PAO).
Unmanned Aircraft Systems (UAS) may qualify for a PAO Certificate of Waiver or Authorization (CoW/A) under the terms of the statute and other requirements for PAO UAS operating in the NAS. UAS operators should contact the Safety and Integration Division (AUS-400) regarding specific questions on operations of UAS as public aircraft that may not be addressed in this AC (see Appendix B, Contact Information).
7.5 Format. We are presenting the material in this AC in the format of Frequently Asked Questions (FAQ) regarding PAO. We are also including some simplified flowcharts (see Figure 1) to aid in determining whether certain operations qualify as PAO. The flowcharts are intended to be used to aid government entities to determine whether certain flights they operate qualify for operation as PAO under the statute.
8 DISCUSSION.
8.1 What Aircraft Are Considered Public Aircraft? Public aircraft are defined in 49 U.S.C. § 40102(a)(41) (see Appendix A).
8.2 Are All Operations by Government Entities PAO? Not necessarily; the statute restricts PAO to those that do not have a commercial purpose or would be typically flown by a commercial entity and, where applicable, to flights with certain persons on board.
A government entity may unintentionally conduct civil operations that would be subject to the regulations in 14 CFR. All government entities are advised to become acquainted with the basics of the statutory requirements.
8.3 What Circumstances Enter into the Determination of a PAO? The statute includes provisions on aircraft ownership/exclusive lease, the entity operating the aircraft, the persons on board, and the purpose of the flight to determine whether operations are public or civil. At no time may a public operation have a commercial purpose.
Reimbursement for PAO is strictly limited to one set of circumstances defined in the
3 statute (refer to 49 U.S.C. § 40125(a)(1)), though certain military operations under Title 10 U.S.C. may involve other statutory considerations. It is important to note that the “commercial purpose” provision of the statute does not prohibit government entities from contracting civil operators for the purposes of conducting PAO. The provision prohibits reimbursement for the government entity, but does not prohibit contractors from being paid for conducting eligible PAO (see paragraph 11.3).
8.4 Are All Operations by the Armed Forces PAO? Not necessarily; the U.S. Military is covered under a separate paragraph of the statute (49 U.S.C. § 40125(c)) to include much of its routine operation. Separate provisions in that paragraph determine the status of certain operations performed by civil contractors that require a designation by the Secretary of Defense.
8.4.1 Operations of Armed Forces Aircraft. Operations by the Armed Forces of their own aircraft (or those they operate) are covered by 49 U.S.C. § 40125(c), including operations in accordance with 10 U.S.C. and those operated in performance of a governmental function under Titles 14, 31, 32, or 50 of the U.S.C., provided they are not used for a commercial purpose. The FAA does not make the determination of operation under any of these titles for the Armed Forces.
8.4.2 Public Aircraft Designation. Title 49 U.S.C. § 40125(c)(1)(C) provides that aircraft chartered to provide transportation or other commercial air service to the U.S. Armed Forces only qualify as PAO when the Secretary of Defense designates the operation of the chartered aircraft as required in the national interest. As discussed earlier in this AC, PAO status remains valid only within U.S. airspace. Similar to civil government-contracted operations, all such chartered operations will be considered civil until the FAA has notice of the Secretary’s designation.
Note: Civilian contractors to the Armed Forces that have valid public aircraft status under 49 U.S.C. § 40125(c) are subject to the FAA policy on submission of a written declaration to the FAA, as discussed in paragraph 9.
8.5 What Oversight of PAO Does the FAA Have? The FAA has limited oversight of PAO, though such operations must continue to comply with the regulations applicable to all aircraft operating in the NAS. The government entity conducting the PAO is responsible for oversight of the operation, including aircraft airworthiness and any operational requirements imposed by the government entity. The government agency contracting for the service assumes the responsibility for oversight of a PAO.
8.6 Does the FAA Prescribe Regulations for PAO? No, the FAA has no regulatory authority over PAO other than those requirements that apply to all aircraft operating in the NAS.
8.7 Which Regulations in 14 CFR Do Not Apply to PAO? In general, regulations that include the term “civil aircraft” in their applicability do not apply to PAO (e.g., 14 CFR part 91, § 91.7).
8.8 Can I Conduct a PAO Outside of the United States? No, public aircraft status exists only within U.S. airspace. Once an aircraft leaves U.S. airspace, it loses its PAO status and is either civil or State (including military), depending on its official designation.
The FAA does not have the authority to issue State or military aircraft designations.
Individual U.S. states and local governments do not have the authority to declare their operations to be State operations. Without an official U.S. Government designation, all aircraft outside U.S. airspace are considered civil.
8.9 Can I Carry Passengers on an Aircraft That is Conducting a PAO? All persons carried on board must be crewmembers or meet the statutory definition of “qualified noncrewmember” (see Appendix A, 49 U.S.C. § 40125(a)(3)). Carriage of a person other than a crewmember or a qualified noncrewmember makes a flight civil under the terms of the statute. It is important to note that a qualified noncrewmember is someone whose presence is required to perform the governmental function associated with the flight;
providing air transportation is not a governmental function (except as provided for in § 40125(c)).
8.10 What Constitutes a Governmental Function? The statute provides several examples of governmental functions in 49 U.S.C. § 40125(a)(2). This list is not all-inclusive and other governmental functions may exist. Functions not listed should not be presumed to be acceptable; contact the FAA Office of the Chief Counsel, Regulations Division (AGC-200) regarding a legal interpretation to identify additional functions.
8.11 Can a Government Entity Qualify for a Civil Operating Certificate? Yes, provided the government entity requires a civil operating certificate to conduct proposed operations that cannot be conducted as PAO. Government entities must follow the same application and certification processes and comply with the same regulatory requirements as all other civil applicants. The FAA advises all government entities with a civil operating certificate to establish a clear process for determining whether a flight is a PAO or is being conducted under its civil operating certificate.
8.12 If I Am a Government Entity With an Aircraft That Does Not Have a Civil Airworthiness Certificate, May I Use It to Conduct a PAO? Yes; however, aircraft that do not have a civil airworthiness certificate may not operate as a civil aircraft.
Government entities are cautioned to become familiar with the requirements for PAO status so that they do not unintentionally conduct civil operations with these aircraft.
For example, a government entity using surplus military aircraft without civil airworthiness certificates could not receive compensation for any operations with those aircraft (i.e., could not operate them as civil aircraft under any part of 14 CFR).
8.13 Can Multiple Government Entities Operate Under One Certificate of Authorization (CoA)? Yes; however, the government entity who receives the CoA is responsible for each entity.
5 9 FAA POLICY FOR CONTRACTING CIVIL AIRCRAFT OPERATORS.
To clarify FAA oversight of certain contracted civil aircraft operators, on March 23, 2011, the FAA published its Notice of Policy Regarding Civil Aircraft Operators Providing Contract Support to Government Entities (Public Aircraft Operations) (76 FR 16349). This policy is consistent with the FAA’s interpretation of the statute and does not change the statutory requirements for PAO. This section summarizes the policy and its impact on operators, government entities, and the FAA.
9.1 Does a Contract With a Government Entity Automatically Grant PAO Status to a Civil Operator? No, public aircraft status is not automatic. The determination of public aircraft status is made on a flight-by-flight basis; both the government entity and the contracted civil operator share responsibility for determining whether:
1. A particular flight meets the statutory requirements for a PAO before the operation takes place, and
2. The status has been properly communicated between the contracting entities and the FAA.
9.2 If I Am a Civil Operator Contracting My Services to a Government Entity, What Actions Should I Take Before Conducting a PAO? The contracting government entity should provide the civil contractor with a written declaration of public aircraft status for designated, qualified flights. This written declaration should be made in advance of the proposed public aircraft flights. Government entities need to determine who is qualified to make a written declaration (which determines responsibility) for the entity. The FAA recommends that the declaration be made by a contracting officer or other official familiar with the public aircraft statute, and be separate from any contract between the government entity and contracted civil operator.
9.2.1 Once a civil operator receives a declaration from the contracting government entity, the contractor should submit a copy of the written declaration to the FAA Flight Standards District Office (FSDO) responsible for the operator. This will serve as notice to the FAA that there is a contract between the civil operator and the government entity that anticipates the conduct of PAO.
9.2.2 The civil operator and the contracting government entity are responsible for jointly determining whether each flight conducted under the contract qualifies for PAO status under the terms of the statute.
9.3 I Am a Civil Operator With a Government Contract. The contract terms require me to operate in accordance with 14 CFR (or hold an FAA operating certificate). The contracting government entity has provided a written declaration of public aircraft status.
9.3.1 Does the FAA Have Oversight of PAO Under This Contract? No, because the contracting government entity has made a declaration, that government entity has responsibility for the eligible PAO flights.
9.3.2 Do I Still Have to Comply With Regulatory Requirements Contained in 14 CFR?
All aircraft, even those conducting eligible PAO, must comply with certain operating rules of the NAS (e.g., § 91.119). Other requirements imposed through the terms of the contract, such as the requirement to hold an FAA 14 CFR part 135 certificate, would not be enforced or overseen by the FAA when PAO are being conducted.
9.4 What Are the Legal Implications of Conducting a PAO? Contracting government entities must be aware that PAO performed by civil operators create a significant transfer of responsibility to the contracting government entity, and that most FAA oversight ceases.
9.4.1 Contracted civil operators must be aware that unless there is a declaration of public aircraft status on file with the agency, the FAA considers all operations civil;
civil operations must be conducted in accordance with all applicable civil aviation regulations. The FAA retains oversight and enforcement authority for any deviation from the provisions of 14 CFR until the agency is informed of the change in status to PAO by means of a written declaration.
9.4.2 Additionally, civil operators are cautioned that it is their responsibility to refuse a contract to perform operations that would violate applicable 14 CFR regulations unless the operator is sure that the government entity offering the contract will be declaring them a PAO. It is the responsibility of the government entity and the operator to determine that each flight meets eligibility requirements for a PAO as required by the statute.
9.5 Does the Contracting Government Entity Have to Make a Declaration on a Flight-By-Flight Basis? No, but a determination should be made prior to each flight as to whether the flight will be public or civil in order to meet the terms of the statute.
While it is necessary for the contracting parties to ensure that each PAO flight meets the statutory requirements, a written declaration to the FAA is not required for each flight.
9.6 What Should a Declaration Look Like? The FAA does not have specific format requirements for PAO declarations. The declaration must provide enough information to indicate who has operational responsibility for the flight. The need for information may vary between contracts and the entities involved. The FAA recommends that the following information be included in each declaration, at a minimum:
• Name of civil operator (the contracted operator);
• Aircraft type(s) to be used for the PAO;
• Name of aircraft owner(s);
• Aircraft registration number(s);
• Date of contract;
• Date of proposed first flight as a PAO;
• Date of contract termination;
• Name of the government entity declaring public aircraft status (the government entity contracting for aircraft services);
• Name, title, and contact information for the government official making the declaration of PAO status; and
• Nature of operations (include enough detail to demonstrate that the flights qualify for PAO status under the statute).
9.7 Why Does the FAA Consider a Written Declaration Necessary? The FAA is implementing this policy to clarify oversight roles and responsibilities related to PAO status. The FAA is required to oversee all civil operations. To fulfill its statutory responsibility, the FAA needs to know when the status of a civil operator changes.
9.8 What if I Do Not Have a Written Declaration Before I Conduct a PAO? While the absence of a written declaration does not change the legal status of a valid PAO, until the FAA receives notice, the FAA considers all civil operations subject to FAA oversight, and the agency will enforce all applicable civil regulations.
9.9 Does the FAA Require a Civil Operator to Submit a Copy of Its Contract With a Government Entity? No; submission of a contract is optional. Submitting the contract does not replace the submission of a declaration.
9.10 Under FAA Policy, What Are My Responsibilities as a Contracted Civil Operator?
As a contracted civil operator, you are responsible for the following:
1. If you are offered a contract to perform operations that could be contrary to 14 CFR civil regulations applicable to the operation, ensure that a written declaration of public aircraft status is on file with the FAA or refuse the contract.
2. Obtain a written declaration of public aircraft status from the contracting government agency prior to conducting any PAO flights.
3. Provide a copy of the written declaration to the FSDO having oversight of your operation prior to conducting any PAO flights.
4. In coordination with the contracting government entity, evaluate and determine that each flight qualifies as an eligible PAO under the terms of the statute. Operations that do not qualify as PAO remain subject to all civil regulations and FAA oversight and enforcement authority.
9.11 Under FAA Policy, What Are the Responsibilities of a Government Entity? As a government entity, you are responsible for the following:
1. Recognize that public aircraft status eligibility is determined by statute.
2. Make a declaration of public aircraft status in advance and in writing to the operator when the government entity intends for the operator to conduct PAO.
3. Understand that PAO represent a significant transfer of responsibility to the government entity and that the FAA does not provide oversight for those flights.
9.12 Under FAA Policy, What Are the Mutual Responsibilities of a Civil Operator and a Government Entity When Operating Under a Contract? Both parties must understand that:
1. Even if a written declaration of PAO status has been made, the operator must continue to comply with certain 14 CFR regulations that affect all users of the NAS.
2. Other regulations may apply even when operating a PAO (e.g., operating rules in 14 CFR parts 91 and 137).
3. The FAA retains enforcement authority for any deviation from applicable provisions of 14 CFR.
4. The FAA also advises both parties to consider whether PAO status is necessary or the flights may be conducted in accordance with the regulations in 14 CFR.
9.13 Is There a Flowchart for Contracted Operations? No; the flowcharts are designed to guide government entities through the terms of the statute to determine whether a particular operation is a valid PAO (see Figure 1). Once a valid PAO is established, a government entity may hire a contractor to conduct that same operation for them. Since a contractor “stands in the shoes” of a government entity under a contract, the flights must be analyzed as if conducted by the government entity.
10 MAINTENANCE REQUIREMENTS FOR AIRCRAFT CONDUCTING PAO.
10.1 What Are My Obligations Prior to Operating That Aircraft as a Civil Aircraft?
If an aircraft is altered outside of its type certificate (TC) or not maintained under an FAA-accepted maintenance program during PAO, a conformity inspection is required to ensure the aircraft meets all civil regulations. The operator of an aircraft that has been operated in public aircraft status may not return the aircraft to service in civil operations without demonstrating that the aircraft meets all the criteria as prescribed by the regulations to hold its airworthiness certificate. For more information, contact the appropriate FSDO.
10.2 Will I Have to Surrender My Aircraft’s Civil Airworthiness Certificate to Conduct a PAO? No; an airworthiness certificate itself does not indicate that an aircraft is Airworthy.
11 OTHER QUESTIONS REGARDING PAO.
11.1 Whom Do I Contact if I Have Questions About FAA Policy Regarding PAO? As a civil operator that contracts to conduct PAO, you should contact the appropriate FSDO for oversight of your civil operating certificate or, for non-certificated operators,
9 the FSDO with jurisdiction where you intend to conduct PAO. Legal interpretations of the public aircraft statute are handled by AGC-200 (see Appendix B).
11.2 How Does the FAA Determine if a Government Entity Qualifies Under the Statutory Definitions in 49 U.S.C. § 40102(a)(41)(C) or (D)? The FAA has received several inquiries from universities and smaller local government agencies concerning their status under the statute. In some circumstances, a public entity may need to seek verification of its status under the public aircraft statute from its state Attorney General or other qualified state office. Upon request, the FAA can provide a letter detailing the specifics of the findings to be made by the state.
Note: Such a verification serves only as a determination of eligibility for PAO, not a determination that any particular operations are qualified PAO under the statute (see Appendix A).
11.3 What Constitutes a “Commercial Purpose” That Removes Someone From PAO Status? In general, the FAA interprets the commercial purpose prohibition in 49 U.S.C. § 40125(a)(1) to mean that there can be no type of reimbursement to government entities for PAO, except under the one set of specific circumstances described in that section. Specific instances of whether an operation has a commercial purpose may be submitted for interpretation to AGC-200 (see Appendix B). As detailed in paragraph 9, a government entity may contract with a private operator (and pay that operator) to conduct a PAO on behalf of the government entity. The statutory prohibition on commercial purpose prevents a government entity from getting paid or reimbursed to operate a PAO, not for paying for contracted services.
11.4 By What Means Do I Certify to the “Administrator of the Federal Aviation Administration That the Operation [Was] Necessary to Respond to a Significant and Imminent Threat to Life or Property and That No Service by a Private Operator is Reasonably Available to Meet the Threat,” as Required by 49 U.S.C.
§ 40125(a)(1)? The FAA recommends that the statutory certification be made in writing to the appropriate FSDO within 10 business-days of the operation.
11.5 Are There Any Other Exceptions to PAO Definitions Applicable to the Government of a State, the District of Columbia, or a Territory or Possession of the United States or a Political Subdivision of One of These Governments as Defined in 49 U.S.C.
§ 40102(a)(41)(D)? Yes. The statute was changed in 2012 to allow certain leased aircraft (including contracted operations) to have public aircraft status even when not exclusively leased for at least 90 calendar-days. This provision, 49 U.S.C. § 40125(d), affects certain search-and-rescue operations. The statute contains specific qualifications for its use and requires a determination by the FAA (see Appendix A). Government entities seeking approval for PAO status under § 40102(a)(41)(D) must submit written documentation that addresses the statutory requirements to the General Aviation and Commercial Division (see Appendix B) and will receive a decision in writing from the FAA.
11.6 What Training Courses Are Available for a Government Entity That Desires More Information on Developing Surveillance and Oversight Programs Similar to Those That the FAA Conducts? The FAA’s Mike Monroney Aeronautical Center (MMAC) conducts training for FAA aviation safety inspectors (ASI) who conduct FAA oversight and surveillance. These courses may be made available to government entities upon request and based on availability. For more information, please contact the MMAC (see Appendix B, paragraph B.6).
12 UAS GENERAL APPLICABILITY AND REQUIREMENTS. This paragraph applies to UAS operations conducted in the NAS other than in active restricted and prohibited areas designated for aviation use, and provides information and limited guidance on air traffic policies and prescribes procedures for the planning, coordination, and services involving the operation of PAO of UAS in the NAS. PAO are limited by statute to certain government operations within U.S. airspace, and must comply with certain general operating rules applicable to all aircraft in the NAS. Other civil certification and safety oversight regulations do not apply to PAO, and most aspects of PAO are not subject to FAA oversight. For example, PAO may self-certify standards for unmanned aircraft (UA) airworthiness as well as pilot certification, qualification, and medical standards.
However, if a public entity elects to operate under civil regulations, such as the conduct of operations under the FAA Modernization and Reform Act of 2012 (FMRA), section 333, or 14 CFR part 107, then those operations would be subject to oversight by ASIs. Government agencies may conduct both public and civil aircraft operations with the same aircraft. However, when conducting operations under civil regulations, the operator will be required to maintain the aircraft in accordance with the appropriate regulations applicable to civil aircraft operations. Any aircraft or operation certificated by the FAA is subject to surveillance regardless of whether they are operating as public or civil. Government-owned aircraft operators that are conducting PAO should be included in the FSDO’s annual planned surveillance activities to ensure that the operator’s status remains unchanged.
Note: If an organization or responsible person is issued a CoA, they must abide by those special provisions outlined in that CoA.
12.1 How Do I Obtain a Special Governmental Interest (SGI) (Emergency) CoA? If the proposed operating area is not covered under the public agency’s approved Blanket or Jurisdictional CoA, the public agency can request and receive approval from the FAA for an SGI Emergency CoW/A that will allow for the one-time operation of the UAS at that location based on an imminent risk-to-life type event where manned aircraft may need to be available or the risk to manned aircraft is too great.
12.2 What Should a Public Declaration Letter Include to Demonstrate to the FAA That Our Agency is Qualified to Operate as a Public Operator? The first step is to coordinate with your city, county, or state Attorney General’s office the need for a public declaration letter that should be mailed to the FAA.
11 Federal Aviation Administration Air Traffic Manager Emerging Technologies Team (AJV-115) 470 L’Enfant Plaza SW, Suite 7105 Washington, DC 20024
12.2.1 Once the FAA’s legal office has reviewed the letter and deemed it sufficient, an online access form will be forwarded to the point of contact (POC) for the public agency to complete and return to the FAA. It currently takes approximately 15 business-days for the FAA to establish an account within the online program that is partitioned to allow for security of the data that the public agency enters.
12.2.2 The public declaration letter is on official letterhead dated and signed by the individual making the declaration (your department cannot self-certify your public aircraft status), and your public agency is named in the letter.
12.2.3 The individual making the declaration is in a position to determine that the entity requesting to operate as a public aircraft operator is actually qualified. The city, county, or state Attorney General is the appropriate party to make that declaration.
12.2.4 The public declaration letter references the two sections in 49 U.S.C.
(§§ 40102(a)(41)(C) and 40125(b)), so that the individual making the declaration understands that the entity is a political subdivision of the state based on these sections.
12.2.5 The letter references some section in your state statute that declares that the entity qualifies as a political subdivision of the state for the purposes of operating as a public aircraft operator.
12.2.6 The public agency that is requesting to operate as a public aircraft operator will not operate for compensation or hire in reference to 49 U.S.C. § 40125(b).
12 Figure 1. Decision Flowcharts for PAO Decision Flowchart for Federal Government Aircraft Operations Section 40102(a)(41)(A): An aircraft used only for the United States Government.
Section 40102(a)(41)(B): An aircraft owned by the U.S. Government and operated for crew training, equipment development, or demonstration.
*Citation:
Section 40125(a)(3) Qualified noncrewmember – The term “qualified noncrewmember” means an individual, other than a member of the crew, aboard an aircraft:
(A) operated by the Armed Forces or an intelligence agency of the United States Government; or (B) whose presence is required to perform, or is associated with the performance of, a governmental function.