95-1744. Public Aircraft Definition and Exemption Authority  

  • [Federal Register Volume 60, Number 16 (Wednesday, January 25, 1995)]
    [Rules and Regulations]
    [Pages 5074-5076]
    From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
    [FR Doc No: 95-1744]
    
    
    
    
    [[Page 5073]]
    
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    Part VIII
    
    
    
    
    
    Department of Transportation
    
    
    
    
    
    _______________________________________________________________________
    
    
    
    Federal Aviation Administration
    
    
    
    _______________________________________________________________________
    
    
    
    14 CFR Parts 1, 11, and 121
    
    
    
    Public Aircraft Definition and Exemption Authority; Final Rule
    
    Federal Register / Vol. 60, No. 16 / Wednesday, January 25, 1995 / 
    Rules and Regulations 
    [[Page 5074]] 
    
    DEPARTMENT OF TRANSPORTATION
    
    Federal Aviation Administration
    
    14 CFR Parts 1, 11, and 121
    
    [Docket No. 28060; Amdt. No. 1-39, 11-38; SFAR 38-2]
    RIN 2120-AF59
    
    
    Public Aircraft Definition and Exemption Authority
    
    AGENCY: Federal Aviation Administration (FAA), DOT.
    
    ACTION: Final rule, request for comments.
    
    -----------------------------------------------------------------------
    
    SUMMARY: This rule amends the Federal Aviation Regulations to reflect 
    statutory changes in the definition of public aircraft and the FAA 
    Administrator's new authority to grant exemptions from statutory 
    requirements, under certain conditions, to units of Federal, state, and 
    local government for operations of government-owned aircraft. This rule 
    is necessary to implement the Airport and Airway Improvement Act 
    Amendments of 1987 and Independent Safety Board Act Amendments of 1994.
    
    DATES: This final rule is effective April 23, 1995. Comments must be 
    submitted on or before February 24, 1995.
    
    ADDRESSES: Send comments in duplicate to: Federal Aviation 
    Administration, Office of the Chief Counsel, ATTN: Rules Docket (AGC-
    200), Docket No. 28060, 800 Independence Avenue SW., Washington, DC 
    20591.
    
    for further information contact: David Catey, (AFS-220), (202) 267-
    8094, 800 Independence Avenue SW., Washington, DC 20591.
    
    supplementary information: On December 30, 1987, and October 25, 1994, 
    the President signed into law the Airport and Airway Improvement Act 
    Amendments of 1987 and the Independent Safety Board Act Amendments of 
    1994, respectively, each of which changed the statutory definition of 
    the term ``public aircraft.'' Public aircraft are exempt from many FAA 
    regulations.
        Under the 1987 Amendment, an aircraft leased by a government, other 
    than the Federal Government, remains a civil aircraft unless the lease 
    is exclusively for the use of that government for not less than 90 
    continuous days. Under the 1994 Amendments, many aircraft previously 
    considered public aircraft will be subject to FAA safety regulations on 
    the effective date of those amendments. For example, when the change in 
    the definition enacted by the 1994 Amendment becomes effective, 
    government-owned aircraft used to transport passengers will, except in 
    limited circumstances, no longer be considered public aircraft. 
    Therefore, the operators of such aircraft will have to meet civil 
    aircraft requirements, including those for certification, maintenance, 
    and training, unless they qualify for narrowly defined exemptions. 
    Aircraft operated by the Armed Forces and intelligence agencies, 
    however, will retain their public aircraft status unless operated for a 
    commercial purpose.
        Although the 1994 Amendment gives the FAA Administrator certain 
    authority to grant exemptions to ``units of government'' from the 
    statutory requirements applicable to civil aircraft, the agency expects 
    to invoke that exemption authority only when the public interest 
    clearly demands it. To obtain an exemption under the statute, a unit of 
    government must show that granting the exemption is necessary ``to 
    prevent an undue economic burden on the unit of government,'' and that 
    the aviation safety 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.'' In acting on any exemption 
    request the FAA will assess the safety of the operation in question. 
    The FAA is developing guidance in the form of an advisory circular for 
    use in this process. It should be noted that, 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.
        In a notice published in the Federal Register on August 1, 1994, 
    (59 FR 39192) the FAA invited comment on the question whether 
    intergovernmental reimbursement for the use of government-owned 
    aircraft prevents the aircraft involved from meeting the definition of 
    public aircraft and, therefore, requires compliance with all safety 
    regulations applicable to civil aircraft. That issue has been clarified 
    by the 1994 Amendment, and the FAA will not be taking further action on 
    that Notice.
        As to whether public aircraft status is lost when one government 
    reimburses another for the use of its aircraft, under the 1994 
    Amendment, if there is cost reimbursement, the aircraft will be civil 
    aircraft unless the appropriate unit of government 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.''
        To implement both the 1987 and 1994 Amendments, this rule amends 
    the definition of ``public aircraft'' in 14 CFR part 1. This rule also 
    amends 14 CFR part 11 to reflect the Administrator's new statutory 
    exemption authority concerning government-owned aircraft. While the 
    Administrator's exemption authority in the past has been limited to 
    exemptions from rules rather than from statutes, in this case Congress 
    granted the Administrator the authority to grant exemptions from the 
    statute--specifically, ``from any requirement of part A of subtitle VII 
    of title 49, United States Code.'' Pub. L. 103-411. As a result, this 
    rule modifies Section 11.25(b)(3) to include exemptions, for 
    government-owned aircraft only, from statutes as well as from rules.
        One final conforming change to the regulations is in the 
    applicability section of SFAR No. 38-2, entitled ``Certification and 
    Operating Requirements.'' In its present form, the applicability 
    section provides that: ``This Special Federal Aviation Regulation 
    applies to persons conducting commercial passenger operations, cargo 
    operations, or both * * *.'' This rule adds the words ``operating civil 
    aircraft in'' to the applicability statement. The new law permits some 
    public aircraft operations for which compensation is received. This 
    change is necessary to assure that regulations intended only for 
    application to civil aircraft are not inadvertently applied to public 
    aircraft when public aircraft are permitted to be operated for 
    compensation or hire.
    
    Good Cause for Immediate Adoption
    
        The FAA finds that notice and public comment on this rulemaking are 
    unnecessary. This final rule is intended merely to conform the 
    regulations to the statute. It is, in essence, a technical amendment 
    that involves no exercise of agency discretion. The FAA is simply 
    changing the rules to reflect, as closely as possible, the new 
    statutory language. As a result, the agency for good cause finds that 
    ``notice and public procedure thereon'' are unnecessary with the 
    meaning of 5 U.S.C. 553(b)(B) of the Administrative Procedure Act. 
    Individuals will have an opportunity to submit comments concerning this 
    final rule by February 24, 1995.
    
    Economic and Other Analyses
    
        This amendment merely conforms FAA rules to the 1987 and 1994 
    Amendments to the law. Federal regulations must conform to the law, 
    therefore the FAA has no discretionary power in this matter. 
    Consequently, a Regulatory Evaluation of the costs and 
    [[Page 5075]] benefits of this change would serve no useful purpose and 
    none was prepared. While meeting these new requirements may result in 
    costs to units of government, including the FAA, these costs are a 
    result of the law and not the regulation. The law does give the FAA 
    Administrator discretionary authority to grant exemptions from certain 
    statutory requirements when the existing safety program of the unit of 
    government is effective to ensure safe operations and conformance with 
    federal regulations pertaining to civil aircraft would constitute ``an 
    undue economic burden'' as previously discussed. Economic 
    considerations will be evaluated by the FAA on a case-by-case basis at 
    the time exemptions are requested.
        For the same reason explained above, the other analyses and 
    determinations normally made a part of rulemaking procedures are 
    determined to be unnecessary in this case and are not included in this 
    document: an analysis of whether there is a significant economic impact 
    on a substantial number of small entities, an international trade 
    impact assessment, a federalism assessment.
    
    Paperwork Reduction Act
    
        This rule contains no information collection requests requiring 
    approval of the Office of Management and Budget pursuant to the 
    Paperwork Reduction Act (44 U.S.C. 3507 et seq.).
    
    Conclusion
    
        For the reasons discussed in the preamble the FAA has determined 
    that this final rule is not significant under Executive Order 12866 or 
    DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 
    1979).
    
    List of Subjects
    
    14 CFR Part 1
    
        Air transportation, Public aircraft.
    
    14 CFR Part 11
    
        Administrative practice and procedure, Reporting and recordkeeping 
    requirements, Exemptions.
    
    14 CFR Part 121
    
        Air carriers, Aircraft, Aviation safety, Reporting and 
    recordkeeping requirements.
    
    The Amendment
    
        Accordingly, 14 CFR parts 1, 11, and 121 are amended as follows:
    
    PART 1--[AMENDED]
    
        1. The authority citation for Part 1 continues to read as follows:
    
        Authority: 49 U.S.C. app. 1347, 1348, 1354(a), 1357(d)(2), 1372, 
    1421 through 1430, 1432, 1442, 1443, 1472, 1510, 1522, 1652(e), 
    1655(c), 1657(f); 49 U.S.C. 106(g).
    
        2. Section 1.1 is amended by revising the definition of ``Public 
    aircraft'' to read as follows:
    
    
    Sec. 1.1  General definitions.
    
     * * * * *
        Public aircraft means an aircraft used only for the United States 
    Government, or 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 does not include a 
    government-owned aircraft transporting property for commercial 
    purposes, or transporting passengers other than 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 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. 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 Chapter 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.
     * * * * *
    
    PART 11--[AMENDED]
    
        3. The authority for Part 11 continues to read as follows:
    
        Authority: 49 U.S.C. app. 1341(a), 1343(d), 1348, 1354(a), 1401 
    through 1405, 1421 through 1431, 1481, 1502; 49 U.S.C. 106(g).
    
        4. Section 11.25 is amended by revising paragraph (b)(3), by 
    removing ``and'' from the end of paragraph (b)(4), by removing the 
    period at the end of paragraph (b)(5) and adding ``; and'' in its 
    place, and by adding paragraph (b)(6) to read as follows:
    
    
    Sec. 11.25  Petitions for rulemaking or exemptions.
    
    * * * * *
        (b) * * *
        (3) Set forth the text or substance of the rule or amendment 
    proposed, or of the rule or statute from which the exemption is sought, 
    or specify the rule that the petitioner seeks to have repealed, as the 
    case may be;
    * * * * *
        (6)(i) In the case of a unit of Federal, state, or local government 
    that is applying for an exemption from any requirement of part A of 
    subtitle VII of title 49, United States Code, that would otherwise be 
    applicable to current or future aircraft of such unit of government as 
    a result of the statutory change in the definition of public aircraft 
    made by the Independent Safety Board Act Amendments of 1994, Public Law 
    103-411, the petition for exemption must contain any information, 
    views, analysis, or arguments available to the petitioner to show that:
        (A) The exemption is necessary to prevent an undue economic burden 
    on the unit of government; and
        (B) The aviation safety program of the unit of government is 
    effective and appropriate to ensure safety operations of the type of 
    aircraft operated by the unit of government.
        (ii) The authority of the Administrator, under the Independent 
    Safety Board Amendments of 1994, Pub. L. 103-411, to grant exemptions 
    to units of government is delegated to the Director, Flight Standards 
    Service, and the Director, Aircraft Certification Service.
     * * * * *
    
    PART 121--[AMENDED]
    
        5. The authority citation for part 121 continues to read as 
    follows:
    
        Authority: 49 U.S.C. app. 1354(a), 1355, 1356, 1357, 1401, 1421-
    1430, 1472, 1485, 1502; and 49 U.S.C. 106(g).
    
        6. Section 1(a) introductory of SAFAR No. 38-2, located in the CFR 
    at the beginning of Part 121, is revised to read as follows:
    
    SFAR No. 38-2--Certification and Operating Requirements
    
    * * * * *
        1. Applicability.
        (a) This Special Federal Aviation Regulation applies to persons 
    operating civil [[Page 5076]] aircraft in commercial passenger 
    operations, cargo operations, or both, and prescribes--
    * * * * *
        Issued in Washington, DC on January 6, 1995.
    David R. Hinson,
    Administrator.
    [FR Doc. 95-1744 Filed 1-20-95; 4:26 pm]
    BILLING CODE 4910-13-M
    
    

Document Information

Effective Date:
4/23/1995
Published:
01/25/1995
Department:
Federal Aviation Administration
Entry Type:
Rule
Action:
Final rule, request for comments.
Document Number:
95-1744
Dates:
This final rule is effective April 23, 1995. Comments must be submitted on or before February 24, 1995.
Pages:
5074-5076 (3 pages)
Docket Numbers:
Docket No. 28060, Amdt. No. 1-39, 11-38, SFAR 38-2
RINs:
2120-AF59
PDF File:
95-1744.pdf
CFR: (2)
14 CFR 1.1
14 CFR 11.25