Advisory U.S. Department of Transportation Circular Federal Aviation Administration Subject: Date: 4/19/95 AC No: 00-1.1 GOVERNMENT AIRCRAFT OPERATIONS Initiated by: AFS-220 Change:
1. PURPOSE. The purpose of this advisory circular (AC) is to provide guidance on whether particular government aircraft operations are public aircraft operations or civil aircraft operations under the new statutory definition of 'public aircraft." This AC contains the Federal Aviation Administration's (FAA) intended application of key terms in the new statutory definition. For operations that have lost public aircraft status under the new law, this AC provides information on bringing those operations into compliance with FAA safety regulations for civil aircraft. It also provides information on applying for an exemption. This AC provides acceptable, but not exclusive, means of complying with the law. Agencies which conduct public aircraft operations are encouraged to comply with the Federal Aviation Regulations (FAR), even when they are not required to do so. They and the flying public will benefit from their voluntary adherence to the enhanced safety standards set out in the regulations. The FAA will continue to provide assistance to public agencies which seek to voluntarily comply with the regulatory requirements.
2. REFERENCE. 49 U.S.C. $ 40102(A) (37).
3. RELATED MATERIAL.
AC 00-2.8, Advisory Circular Checklist, lists documents that provide guidance on many of the processes required to be followed in the certification and operation of civil aircraft.
b. AC 00-44FF, Status of Federal Aviation Regulations, provides the current public status of the Federal Aviation Regulations (FAR), prices, and order forms.
AC 20-132, Public Aircraft, provides guidance that public aircraft status under the Federal Aviation Act does not permit operations outside the territorial limits of the United States without a valid airworthiness certificate.
AC 120-12A, Private Carriage Versus Common Carriage of Persons or Property, furnishes general guidelines for determining whether transportation operations by air constitute private or common carriage.
AC-120-49, Certification of Air Carriers, provides information and guidance on the certification process for air carriers under FAR Parts 121 and 135.
f. Guide to Federal Aviation Administration Publications provides guidance on identifying and obtaining FAA and other aviation-related publications issued by the Federal government.
Note: Copies of the above documents may be obtained from the Department of Transportation, M-45.3, General Services Section, Washington, DC 20590.
Shivan Charadi Thomas C. Accardi Director, Flight Standards Service ii
CONTENTS Page No.
CHAPTER 1. DETERMINING WHETHER AIRCRAFT OPERATIONS ARE PUBLIC OR CIVIL.
1. PUBLIC AIRCRAFT DEFINITION.
a . Background.
b. Legislative History.
C. Statutory Text.
d. Operational Nature of Definition.
e . Effective Date.
2. KEY STATUTORY TERMS.
a . "For Commercial Purposes."
b. "Whose Presence Is Required to Perform."
C. "Associated with the Performance of."
d. "A Governmental Function such as ...."
(1) Examples.
(2) "Firefighting."
(3) "Search and Rescue."
(4) 'Law Enforcement."
(5) "Aeronautical Research."
(6) "Biological and Geological Resources Management. 7
(7) Other Governmental Functions - Examples."
e . "Cost Reimbursement Agreement."
f. "Unit of Government." 8 9 . "Certifies." 8
h. Significant and Imminent Threat 9 i• No Service by a Private Operator Reasonably Available. 9 CHAPTER 2. BRINGING OPERATIONS INTO COMPLIANCE.
3. BASIC TYPES OF CIVIL AIRCRAFT OPERATIONS.
a. FAR Part 91.
b. FAR Part 125.
C. FAR Part 121 or 135.
d. FAR Part 133.
e. FAR Part 137.
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Page No.
4. PILOT CERTIFICATION. 14
a. Generally. 14 D. Domestic Aircraft. 14 C. Foreign Aircraft. 14
d. Medical Certification. 14
e. Instrument Rating. 15
5. AIRCRAFT CERTIFICATION. 15
a. Generally. 15
b. Type Certification. 16 C. Aircraft Previously Type Certificated. 16
d. Aircraft with No Prior Certification. 17
e. Airworthiness Certification. 17
f. Procedures for Obtaining Certificate. 18 CHAPTER 3. APPLYING FOR AN EXEMPTION.
6. ADMINISTRATOR'S EXEMPTION AUTHORITY. 21
a. In General. 21
b. Statutory Requirements. 21
c. Delegation of Authority. 22
7. KEY STATUTORY TERMS. 22
a. The Administrator Finds ... and...
Certifies. 22 D. "Undue Economic Burden." 22 C. "Aviation Safety Program." 22
d. ¿¿Aircraft with No Previous FAA Type Certification. 23
8. PETITIONS FOR EXEMPTION.
a. Procedure.
b. Contents.
iv
CHAPTER 1. DETERMINING WHETHER OPERATIONS ARE PUBLIC OR CIVIL.
1. PUBLIC AIRCRAFT DEFINITION.
Background. In recent years, there has been an increasing interest in matters involving operations of public aircraft, which are generally exempt from compliance with the Federal Aviation Regulations.
(1) One area of interest is related to government agencies' receipt of reimbursement for their operation of government-owned aircraft. Prior to the enactment of the Public Law 103-411, the Independent Safety Board Act Amendments of 1994, "public aircraft" was defined to exclude "any government-owned aircraft engaged in carrying persons or property for commercial purposes. (P.L. 100-223, 1987). The FAA's long-standing interpretation has been that, where there is a receipt of compensation, such an operation is "for commercial purposes" and that such an operation therefore is not a public aircraft operation. This interpretation has been applied to intergovernmental arrangements wherein one government agency receives compensation for providing aircraft services to another government agency. Such services may be provided for firefighting, search and rescue or other governmental functions.
Many government operators objected to the FAA's interpretation, claiming that such an interpretation impeded their governmental missions. They urged that it was impractical or impossible to obtain the services commercially, and that it was too costly to conduct their operations under the Federal Aviation Regulations as civil aircraft.
(2) On October 9, 1994, Congress passed the Independent Safety Board Act Amendments, Pub. L. 103-411, which changed the definition of the term "public aircraft." The law was signed by President Clinton on October 25, 1994.
(3) On January 26, 1995, the proposed advisory Governmen Fed. Be circular on Government Aircraft Operations was published in the Federal Register. 60 Fed. Reg. 5237. The proposed advisory circular set forth the FAA's understanding of the terms set forth in the new statute and the agency's intended application of those terms. The proposed advisory circular requested comments from affected parties on the positions taken by the FAA.
(4) Between January 26 and the current date, the FAA received and considered numerous comments from federal, state, and local governmental organizations as well as from representatives of private aircraft operators. Additionally , the FAA received an opinion of the Office of Legal Counsel, Chap 1 Par 1 1
United States Department of Justice. That opinion, dated March 31, 1995, addresses whether the transport of prisoners on government aircraft falls within the statutory definition of "public aircraft." The opinion advised that the position taken by the FAA in the proposed advisory circular regarding the transport of prisoners was unnecessarily restrictive.
discusses generally the terms used in that section of the statute which relate to the transporting of passengers in government-owned aircraft and advises that those terms would more appropriately be given a slightly broader interpretation than that in the proposed advisory circular. The FAA has modified its position to accord with the legal direction received.
Legislative History. The general purpose of the new law, as reflected in the 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 of cose to dave tai at one, passengers, should be subject to the regulations applicable to civil aircraft. The new law (with certain exceptions) preserved as public aircraft operations, those relating 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.
Statutory Text. The new definition of public aircraft enacted by Congress is as follows:
"(1) an aircraft--
(i) used only for the United States Government;
or
(ii) owned and operated (except for commercial purposes) or exclusively leased for at least 90 continuous days by a government (except the United States Government), including a State, the District of Columbia, or a territory or possession of the United States, or political subdivision of that government; but
(2) does not include a government-owned aircraft--
(i) transporting property for commercial purposes; or
(ii) transporting passengers other than-- Chap 1 2 Par 1
(A) transporting (for other than commercial purposes) crewmembers or other persons aboard the aircraft whose presence is required to perform, or is associated with the performance of, a governmental function such as firefighting, search and rescue, law enforcement, aeronautical research, or biological or geological resource management; or (B) transporting (for other than commercial purposes) persons aboard the aircraft if the aircraft is operated by the Armed Forces or an intelligence agency of the United states.
(3) An aircraft described in the preceding sentence shall, notwithstanding any limitation relating to use of the aircraft for commercial purposes, be considered to be a public aircraft for the purposes of this part without regard to whether the aircraft is operated by a unit of government on behalf of another unit of government, pursuant to a cost reimbursement agreement between such units of government, if the unit of government on whose behalf the operation is conducted certifies 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 (including natural resources) and that no service by a private operator was reasonably available to meet the threat." 49 U.S.C. 40102 (a) (37).
Operational Nature of Definition. The status of an aircraft as "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 aircraft or civil aircraft, it is more precise to speak of particular operations as public or civil in nature. Example: An aircraft owned by a state government is used in the morning for a search and rescue mission. During the search and rescue operation, the aircraft is a public aircraft.
Later that same day, however, the aircraft is used to fly the governor of the state from one meeting to another. At that time, the aircraft loses its public aircraft status and must be operated as a civil aircraft.
Effective Date. The effective date of the new statute is April 23, 1995.
2. MEANING OF KEY STATUTORY TERMS. The FAA interprets various words, phrases, and clauses in the statutory definition (in their order of appearance in the statute) as follows:
a. "For Commercial Purposes." The FAA has consistently taken the position that this term means '¿for compensation or hire. The test historically applied to determine whether an Chap 1 Par 1
operation is for "compensation or hire" is whether the operator receives direct or indirect payment for the operation. It is not necessary that a flight be conducted for profit to constitute an operation for "compensation or hire," the term may be applicable even where there is no intent or ability to make a profit from the flight. Even where there is only cost-reimbursement from a unit of one government to a unit of another for the operation of an aircraft, such reimbursement constitutes "compensation."
Accordingly, operations conducted pursuant to cost-reimbursement arrangements between units of government are considered to be "for commercial purposes." The new statute provides a limited exception allowing for public aircraft status where the unit of government on whose behalf the operation is conducted certifies 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 was reasonably available to meet the threat. By providing this limited exception, Congress clearly recognized that operations conducted pursuant to cost-reimbursement agreements are to be considered "for commercial purposes."
Generally, a transfer of funds by one element of government to another element within that same government will not be treated as compensation. Operations conducted pursuant to those arrangements are not considered "for commercial purposes" where the reimbursement is essentially an accounting of transactions within the same unit of government.
(1) One state agency reimburses another agency of the same state for conducting operations on its behalf using a stateowned aircraft. If the two agencies share a common treasury, the operation is not "for commercial purposes" within the meaning of the statute.
(2) A federal agency reimburses a state agency for conducting aircraft operations on the former's behalf using state-owned aircraft. Such an operation is 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, the operation would be considered a public aircraft operation.
b. "Whose Presence is Required to Perform." This phrase means that the person is aboard the aircraft for the purpose of performing a task or duty directly related to an ongoing governmental function of the sort enumerated in the statute. It indicates that the person's presence is essential to the performance of that function.
Chap 1 4 Par 2
(1) Examples:
(i) Firefighters who are being transported for the purpose of engaging in a current firefighting activity are considered persons whose presence is essential for the performance of that activity. The transport of firefighters directly to a firefront by aircraft as part of a mission for which the use of an aircraft is necessary would constitute an accepted activity.
base camp by aircraft where they are to be dispersed to the firefront may be viewed in the same manner.
(ii) Officials who are conducting law enforcement operations while in an aircraft would be considered as being required for the performance of that governmental function.
Thus, the carriage of law enforcement personnel performing aerial surveillance would be considered as necessary to perform the law enforcement function. So too, might officials who are being transported for the purpose of engaging in a law enforcement activity. For example, the carriage of officers to the scene of a public disturbance for the purpose of performing riot control duty on the ground would also be included if the effectiveness of riot control would be compromised by inability to use the aircraft. The movement of law enforcement personnel for administrative purposes would not be considered necessary for the performance of an excepted government function.
(iii) Persons engaging in search and rescue operations from an aircraft would be considered necessary for the performance of the governmental function. Also included would be persons who are being carried to a remote search area from which they would conduct ground search and rescue operations, provided that the use of the aircraft is necessary for the performance of that mission.
(iv) Persons on board aircraft conducting aeronautical research who are engaged in the airborne gathering of data or information are necessary for performance of the governmental function.
(v) Persons on board an aircraft that is engaged in biological and geological resource management would be included, so long as they perform biological and geological resource management-related duties on the aircraft. Also included would be persons carried to a location from which they would engage in an ongoing operation or mission.
Chap 1 Par 2 5
"Associated with the Performance of." This clause operates to include persons who, while not directly engaged in performing the governmental function, are present on the aircraft in connection with that function.
(1) Examples:
(i) An official who accompanies firefighters to a fire to oversee or assess the success of the operation and/or the need to commit further resources to the fire fight would be associated with the performance of the governmental function.
(ii) A ground crew that accompanies a weather research aircraft to the theater of operations for the purpose of maintaining the aircraft and equipment would be associated with the performance of the governmental function.
Prisoners who are being transported aboard an aircraft are associated with the performance of a law enforcement function.
(iv) Persons who are rescued during a search and rescue operation are associated with that function. Also included are members of a ground rescue party which assists in the search and rescue operation.
"Governmental Function Such As..." The term "such as," when used in the clause "a governmental function such as firefighting, search and rescue, law enforcement, aeronautical research, or biological or geological resource managementi indicates that the listed functions are not exhaustive and that the exception may apply to other governmental functions as well.
However, the exception is limited to those other governmental functions that are comparable to and consistent with the listed functions. The unifying characteristic shared by the governmental functions listed in the statute is that they each involve the carriage of persons as part of a mission for which the use of an aircraft is necessary. Thus, it is not sufficient to merely show that the passengers are being transported to perform one of the functions listed in the statute; the use of the aircraft must be necessary for the performance of the mission. The aircraft would be necessary for the performance of a mission if the inability to use the aircraft would compromise the effectiveness of that mission.
(1) Examples:
(i) The use of an aircraft for administrative travel, such as to attend meetings or make speeches, would not be considered necessary for the performance of a listed or Chap 1 Par 2
comparable governmental mission. Such an operation would not qualify for the exception.
(ii) Training flights would be included if the persons on board are being trained on the aircraft to perform one of the functions listed in the statute. Flights to transport persons to receive ground training would not be included.
(2) "Firefighting." This term includes the dispensing of water or fire retardants on a fire. 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.
(3) "Search and Rescue." This term is commonly used to mean operations conducted to locate and rescue persons who are lost, injured, and/or exposed to some degree of danger or harm.
Generally, the use of an aircraft is indispensable to the search effort or is the only feasible means of recovering the victim.
Persons rescued would be considered "associated with" the activity.
(4) "Law Enforcement." Operations requiring the use of an aircraft, such as aerial surveillance, fugitive apprehension, and riot control would be included. Also included would be other situations where the use of an aircraft is essential for the performance of an ongoing law enforcement mission. For instance, deployment of SWAT teams to the theater of operations by aircraft would be included when the use of an aircraft is essential for the successful performance of the mission.
(5) "Aeronautical Research.". This term would include flights to measure the performance of aircraft or aeronautical components. It would also include atmospheric research, meteorological observation and airborne astronomy.
(6) "Biological and Geological Resource Management."
This term would include operations which require the use of an aircraft for the successful performance of the mission. For example, counting wildlife from an aircraft would be included.
(7) "Other Governmental Functions - Examples:"
(i) Medical evacuation. While this term is not considered synonymous with "search and rescue," it may be an included governmental function, depending on the particular circumstances of the operation. Again, the use of an aircraft Chap 1 Par 2 7
must be essential to the successful performance of the mission.
It is unlikely that the use of an aircraft would be essential for a medical evacuation operation in an urban area where other means of transportation are routinely available.
(ii) Aerial Survey. Operations conducted to assure compliance with state or local laws or codes are included if the inability to use an aircraft would compromise the effectiveness of the mission. Examples:
(A) The identification of environmental polluters would be included if the use of an aircraft was necessary to locate the offenders.
(B) Aerial patrol of nuclear test sites to deter or locate trespassers would be included.
"Cost-Reimbursement Agreement." This term means any agreement, oral or written, providing for reimbursement of all or part of the costs of an aircraft operation. Any charge or payment in excess of the cost of the operation would not constitute a cost-reimbursement agreement.
f. "Unit of Government." This term means a government body. Generally, the singular characteristic of a unit of government in this context is its common treasury. Reimbursement for flight operations between two elements of the same unit of government would not be considered an operation for ‚¿compensation or hire. However, the receipt of reimbursement for a flight operation from an element of one unit of government to an element of a separate unit of government would constitute an operation receives the benefit of the operation, certifies that there is a significant and immediate threat to life or property and that no private operator is reasonably available.
"Certifies." The certification that there is a significant and immediate threat to life or property and that no private operator is reasonably available should be made by the unit of government on whose behalf the operation is conducted.
Without the certification, the unit of government who receives reimbursement for conducting the operation will be assumed to have conducted the operation "for commercial purposes." Such an operation will be considered a civil aircraft operation and may require compliance with FAR Part 121, 125, 133, 135, or 137.
(1) The certification should include: the date of the operation, a description of the flight operation conducted, a description of the significant or immediate threat, and an Chap 1 8 Par 2