[Federal Register Volume 60, Number 78 (Monday, April 24, 1995)]
[Notices]
[Pages 20142-20149]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-10052]
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DEPARTMENT OF TRANSPORTATION
Federal Aviation Administration
[AC No. 1-1]
Advisory Circular on Government-Owned Aircraft
AGENCY: Federal Aviation Administration, DOT.
ACTION: Advisory Circular.
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SUMMARY: Advisory Circular (AC) 1-1, Government Owned Aircraft provides
guidance on whether particular government-owned aircraft operations are
public aircraft operations or civil aircraft operations under the new
statutory definition of ``public aircraft.'' This Advisory Circular
contains the [[Page 20143]] FAA's interpretation of key terms in the
new statutory definition. For operations that have lost public aircraft
status under the new law, this Advisory Circular 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 Advisory Circular provides acceptable,
but not exclusive, means of complying with the law.
DATES: This Advisory Circular is effective on April 19, 1995.
FOR FURTHER INFORMATION CONTACT:
David Catey, Air Carrier Branch (AFS-220), (202) 267-8094, 800
Independence Avenue SW., Washington, DC 20591.
SUPPLEMENTARY INFORMATION: The guidance in this AC provides one method,
but not the only method of complying with the new definition of public
aircraft as defined in the Independent Safety Board Act Amendments of
1994, Pub. L. 103-411. This guidance material supplements the final
rule titled Public Aircraft Definition and Exemption Authority. Because
Pub. L. 103-411 becomes effective April 23, 1995, the AC is published
in its entirety in order to allow expedient access to the document by
the general public.
Issued in Washington, DC on April 19, 1995.
William J. White,
Acting Director, Flight Standards Service.
Advisory Circular
Subject: Government Aircraft Operations
Date: 4/19/95
Initiated by:
AC No: 00-1.1
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.
a. 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,
c. 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.
d. 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.
e. 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.
Thomas C. Accardi,
Director, Flight Standards Service.
Contents
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) ``Other Governmental Functions--Examples.''
e. ``Cost Reimbursement Agreement.''
f. ``Unit of Government.''
g. ``Certifies.''
h. ``Significant and Imminent Threat * * *. ''
i. ``No Service by a Private Operator * * * Reasonably
Available.''
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.
4. Pilot Certification.
a. Generally.
b. Domestic Aircraft.
c. Foreign Aircraft.
d. Medical Certification.
e. Instrument Rating.
5. Aircraft Certification.
a. Generally.
b. Type Certification.
c. Aircraft Previously Type Certificated.
d. Aircraft with No Prior Certification.
e. Airworthiness Certification.
f. Procedures for Obtaining Certificate.
Chapter 3. Applying for an Exemption
6. Administrator's Exemption Authority.
a. In General.
b. Statutory Requirements.
c. Delegation of Authority.
7. Key Statutory Terms.
a. ``The Administrator Finds * * * and * * * Certifies.''
b. ``Undue Economic Burden.''
c. ``Aviation Safety Program.''
d. ``Aircraft with No Previous FAA Type Certification.''
8. Petitions for Exemption.
a. Procedure.
b. Contents.
Chapter 1. Determining Whether Operations are Public or Civil
1. Public Aircraft Definition
a. 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 [[Page 20144]] aircraft.'' The law was signed
by President Clinton on October 25, 1994.
(3) On January 26, 1995, the proposed advisory circular on
Government Aircraft Operations was published in the Federal
Register. 60 FR 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, 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.
It 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.
b. 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 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.
c. 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--
(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).
d. 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.
e. 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 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 state-owned
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.
(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. Similarly, the transport of
firefighters to a 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
[[Page 20145]] 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.
c. ``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.
(iii) 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.
d. ``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 management''
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 for the
performance of a listed or 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 could 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 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.
e. ``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 ``for commercial
purposes.'' Such operation would be considered a civil aircraft
operation, except when the government unit, which receives the
benefit of the operation, certifies that there is a significant and
immediate threat to life or property and that not private operator
is reasonably available.
g. ``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 explanation of why it
was determined that no service by a private operator was reasonably
available.
(2) The certification is the responsibility of the unit of
government which provides the flight operations. It is suggested
that the certification be completed contemporaneously with the
operation and be retained by the unit of government which operated
the aircraft.
h. ``Significant and Imminent Threat.'' This term refers to a
situation where the public agency responsible for responding to a
threat has determined that serious injury or death, or significant
damage to property (including natural resources) is present. The
agency must also determine that the use of an aircraft is necessary
to respond to the threat.
i. ``No Service by a Private Operator was Reasonably
Available.'' This term means that the public agency responsible for
responding to a threat has reasonably determined that, at
[[Page 20146]] the time of the response, no private operator was
available and capable of responding to the threat in a timely
manner.
Chapter 2. Bringing Operations Into Compliance
3. Basic Types of Civil Aircraft Operations
The government operator should contact the nearest FAA Flight
Standards district office (FSDO) for assistance and guidance in
bringing its operations into compliance with the FAR. For operations
requiring certification, the FSDO manager will assign an FAA
aviation safety inspector to assist the government operator during
the certification process. Initial inquiries about certification or
requests for applications should be in writing or by personal visit
to the FSDO.
a. FAR Part 91.
(1) FAR Part 91 prescribes the general flight rules for all
aircraft operations within the United States, including the waters
within 3 nautical miles of the U.S. coast. U.S.-registered civil
aircraft are required to comply with FAR Part 91. When over the high
seas, they must comply with Annex 2 (Rules of the Air) to the
Convention on International Civil Aviation.
(2) FAR Part 91 prohibits a pilot from operating a civil
aircraft unless it is in an airworthy condition. The pilot in
command (PIC) is responsible for determining whether the aircraft is
in condition for safe flight. The PIC is required to terminate the
flight when unairworthy mechanical, electrical, or structural
conditions occur. In addition, the PIC may not operate the aircraft
without complying with the operating limitations specified in the
approved Airplane or Rotorcraft Flight Manual, markings, and
placards, or as otherwise prescribed by the certificating authority
of the country of registry.
(3) Under FAR Part 91, the PIC of an aircraft is directly
responsible for, and is the final authority as to the operation of
that aircraft. In case of an inflight emergency, the PIC is
authorized to deviate from any rule in FAR Part 91 to the extent
necessary to meet the emergency. However, any PIC who deviates from
a rule in FAR Part 91 is required, upon the request of the
Administrator, to send a written report of that deviation to the
Administrator.
b. FAR Part 125. If an operator uses an airplane with a seating
configuration for 20 or more passenger seats or a maximum payload
capacity of 6,000 pounds or more, and is not engaged in ``common
carriage,'' then FAR Part 125 applies. A person is considered to be
engaged in ``common carriage'' when ``holding out'' to the general
public or to a segment of the public as willing to furnish
transportation within the limits of its facilities to any person who
wants it. Examples of holding out are as follows: advertising
through telephone yellow pages, billboards, television, radio, and
individual ticketing. FAR Section 125.11(b) prohibits FAR Part 125
certificate holders from conducting any operation which results
directly or indirectly from holding out to the general public.
Further information regarding common carriage vs. private carriage
can be found in AC 120-12. If the operator is engaged in ``common
carriage,'' then FAR Part 121 or 135 applies rather than FAR Part
125.
c. FAR Part 121 or 135. When a government-owned aircraft is
operated ``for commercial purposes'' (see paragraph 2(a) above), the
requirements contained in either FAR Part 121 or 135, depending on
the type of operation, must be met. Generally, FAR Part 121 applies
to domestic, flag, and supplemental air carriers and commercial
operators of large aircraft, while FAR Part 135 applies to air taxi
operators and commercial operators. An operator should consult
Special Federal Aviation Regulation (SFAR) No. 38-2 as well as the
applicability provisions of each part (FAR Sections 121.1 and 135.1)
to determine whether it is FAR Part 121 or 135 that applies to a
particular operation. The FSDO will provide an applicant for a FAR
Part 121 or 135 certificate with a videotape on certification and a
copy of AC 120-49, Certification of Air Carriers. Once the videotape
and the AC have been reviewed, the applicant will complete FAA Form
8400-6, Preapplication Statement of Intent, and the FSDO manager
will assign a Certification Team to assist the applicant through
each phase of the certification process.
d. FAR Part 133. FAR Part 133, Rotorcraft External-Load
Operations, prescribes the airworthiness certification requirements
for rotorcraft, and the operating and certification rules governing
the operation of rotorcraft conducting external-load operations in
the United States by any person. The certification rules do not
apply to a Federal, state, or local government conducting operations
with a government-owned aircraft unless it is operating as a civil
aircraft due to receipt of compensation. Federal, state, or local
governments must; however, comply with all of the other rules
contained in FAR Part 133, even when operating a public aircraft.
(1) FAR Part 133 requires that a person must obtain a Rotorcraft
External-Load Operator Certificate issued by the FAA before any
rotorcraft external-load operations in the United States are begun.
This certificate is valid for 24-calendar months unless it is
surrendered, suspended, or revoked prior to the expiration date
shown on the certificate.
(2) Rotorcraft used in external-load operations must have been
type certificated and must continue to meet the requirements of FAR
Part 27 or 29 or of FAR Section 21.25. Rotorcraft must also comply
with the airworthiness requirements contained in Subpart D of FAR
Part 133 and must have a valid standard or restricted category
airworthiness certificate. At the present time, only rotorcraft of
U.S. registry are eligible for external-load operations.
(3) Pilots conducting rotorcraft external-load operations must
have at least a current commercial pilot certificate with a rating
appropriate to the rotorcraft being used, and a Second Class Medical
Certificate.
e. FAR Part 137. FAR Part 137, Agricultural Aircraft Operations,
prescribes the rules which govern the certification and operation of
agricultual aircraft operated in the United States, and the issuance
of either a private or commercial agricultural aircraft operator
certificate for those operations. In a public emergency, a person
who conducts agricultural aircraft operations may, where necessary,
deviate from any operating rule contained in FAR Part 137 for relief
and welfare activities approved by an agency of the United States or
of a state or local government. However, each person who deviates
from a rule shall complete a report of the aircraft operation
involved within 10 days, including a description of the operation
and the reasons for it, to the nearest FAA FSDO.
(1) As defined in FAR Part 137, an agricultural aircraft
operation means the operation of an aircraft for the purpose of:
(i) Dispensing any economic poison;
(ii) Dispensing any other substance intended for plant
nourishment, soil treatment, propagation of plant life, or pest
control; or
(iii) Engaging in dispensing activities directly affecting
agriculture, horticulture, or forest preservation. It does not
include the dispensing of live insects. Forest firefighting is
considered to be an agricultural aircraft operation.
(2) FAR Part 137 requires that a person must obtain an
Agricultural Aircraft Operator Certificate issued by the FAA before
any agricultural aircraft operations in the United States are begun.
A rotorcraft may conduct agricultural aircraft operations with
external dispensing equipment in place without a rotorcraft
external-load operator certificate. However, an operator with a
rotorcraft external-load operator certificate may conduct
agricultural aircraft operations if it disperses only water on
forest fires by rotorcraft external-load means without an
agricultural aircraft operator certificate. A Federal, state, or
local government conducting agricultural aircraft operations is not
required to obtain an Agricultural Aircraft Operator Certificate.
They must; however, comply with all of the other rules contained in
FAR Part 137.
(3) Aircraft used in agricultural aircraft operations must be
certificated and airworthy, and equipped for agricultural operation.
They must be equipped with a suitable and properly installed
shoulder harness for use by each pilot.
(4) Operators conducting agricultural aircraft operations must
have the services of one person who has at least a current U.S.
commercial pilot certificate and who is properly rated for the
aircraft to be used.
4. Pilot Certification
a. Generally. All civil aircraft are required to be operated by
pilots certificated under FAR Part 61, Certification: Pilots And
Flight Instructors. FAR Part 61 prescribes the requirements for
issuing pilot certificates and ratings, the conditions under which
those certificates and ratings are necessary, and the privileges and
limitations of those certificates and ratings.
b. Domestic Aircraft. Pilots operating civil aircraft of U.S.
registry are required to have in their personal possession a current
pilot certificate issued to them under FAR Part 61. U.S.-registered
aircraft may be operated in a foreign country with a pilot license
issued by that country.
c. Foreign Aircraft. Foreign aircraft may be operated in the
U.S. by pilots who have in [[Page 20147]] their personal possession
current pilot certificates issued under FAR Part 61 or a pilot
license issued to them or validated for them by the country in which
the aircraft is registered.
d. Medical Certificate. Pilots operating U.S.-registered civil
aircraft are required to have in their personal possession an
appropriate current medical certificate issued to them under FAR
Part 67, Medical Standards and Certification. FAR Part 67 prescribes
the medical standards for issuing medical certificates. A Third
Class Medical Certificate is required for Private Pilot
certification. A Second Class Medical Certificate is required for
Commercial Pilot certification. A First Class Medical Certificate is
required for Airline Transport Pilot Certification.
e. Instrument Rating. Pilots operating civil aircraft under
instrument flight rules or in weather conditions less than the
minimums prescribed for Visual Flights Rules are required to hold an
Instrument Rating or an Airline Transport Pilot Certificate
appropriate for the aircraft flown.
5. Aircraft Certification
a. Generally. Government aircraft operations that are no longer
eligible for public aircraft status must now meet the civil
airworthiness standards for certification of aircraft. This includes
the aircraft's engines and propellers as well as the aircraft as a
whole. A civil aircraft must have a current airworthiness
certificate to operate in the National Airspace System.
Additionally, all civil aircraft must meet the following
requirements:
(1) The aircraft must have an effective U.S. registration
certificate on board during all operations as required by FAR
Section 91.203.
(2) An appropriate and current airworthiness certificate must be
displayed in accordance with FAR Sec. 91.203(c). An airworthiness
certificate is effective as long as the maintenance, preventative
maintenance, and alterations are performed in accordance with FAR
Parts 21, 43, and 91, as appropriate, and the aircraft is registered
in the United States.
(3) The aircraft must have been inspected in accordance with FAR
Sec. 91.409 within the preceding 12-calendar months.
(i) If the government agency plans to use a progressive
inspection program, it must submit a written request to the FAA. The
request must be sent to the FSDO having jurisdiction over the area
in which the applicant is located and the applicant must be able to
meet the requirements identified in FAR Sec. 91.409(d).
(ii) Large airplanes, turobjet multiengine airplanes,
turbopropeller-powered multiengine airplanes, and turbine-powered
rotorcraft must have a program approved that meets the requirements
of FAR Sec. 91.409(e).
(4) All maintenance and required inspections must have been
completed by a person authorized under FAR Sections 43.3 and 43.7.
Additionally, the maintenance and inspections performed must be
recorded in accordance with FAR Sections 43.9 and 43.11. FAR Part 43
prescribes the rules governing the maintenance, preventative
maintenance, rebuilding, and alteration of civil U.S.-registered
aircraft.
(5) Any alterations to the aircraft must have been accomplished
and returned to service by an appropriately certified and authorized
person under FAR Part 43.
(6) Aircraft operations for compensation or hire must be
performed in accordance with the appropriate Air Operations
Certificate, e.g., FAR Part 125, 135, etc.
b. Type Certification. Prior to airworthiness certification, the
type design must be certificated by the FAA. Section 603(c) of the
Federal Aviation 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:
(1) Design approval for aircraft that have been type
certificated in the past; or
(2) Type certification approval of aircraft that have been
operated in the past under aircraft status without a type
certificate.
c. Aircraft Previously Type Certificated. If the aircraft was
originally built to an FAA type certificate, the Aircraft
Certification Office will review the type certificate data and make
a comparison with the aircraft's current design and condition.
(1) The applicant should provide the FAA Aircraft Certification
Office with the technical information to assist in the following:
(i) A review of type design for any engineering changes or
modifications;
(ii) A review of replacement parts and technical data on the
replacement parts;
(iii) A review of applicable Airworthiness Directives (AD);
(iv) A review of previous operating regimes;
(v) If needed, application of later regulatory amendments or
special conditions for any changes found necessary to establish
current airworthiness standards for safe design.
(2) The applicant must provide accurate records of any changes
from the approved type design that are 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.
d. Aircraft with No Prior Certification. It may be difficult to
obtain type certification of aircraft that have no history of civil
certification. However, if a government operator wishes to apply for
type certification, it should file an application for a type
certificate on FAA Form 8110.12. The applicant must submit the
application and all type design data for the aircraft, including the
aircraft's engines and propellers, to the Aircraft Certification
Office in its geographic area for approval. The application form
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,
i.e., FAR Part 23, 25, 27, 29, 33, 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 submit the
type design, test reports, and computations necessary to show that
the product to be certificated meets the applicable airworthiness,
aircraft noise, fuel venting, and exhaust emission requirements of
the FAR. Upon examining the data and test reports, participating in
testing, and inspecting the prototype aircraft, the Administrator
must be able to find that the type design in fact complies with the
above-mentioned regulations.
e. Airworthiness Certification. An operator of an aircraft that
has been operated in public aircraft status cannot obtain a standard
airworthiness certificate or return the aircraft to civil operations
without showing that the aircraft meets all the criteria for that
airworthiness certificate as prescribed by the regulations. Making
that showing may be difficult when the aircraft has not been
maintained, altered, or inspected in accordance with the FAR. In
order to receive a standard airworthiness certificate, the operator
should show 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 the FAA. Before a
standard airworthiness certificate can be issued, the applicant must
show that:
(1) The aircraft conforms to its approved type design and is in
condition for safe operation.
(2) 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.
(3) All applicable AD's have been complied with.
(4) 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.
f. Procedures for Obtaining Certificate. Applicants interested
in obtaining an airworthiness certificate must follow the following
procedures.
(1) Applicants are required to submit a properly executed
Application for Airworthiness, FAA Form 8130-6, and any other
documents called for in FAR Parts 21 and 45 for certification. An
applicant may obtain an FAA Form 8130-6, ``Application for
Airworthiness'' 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.
(2) 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.
(3) The applicant must properly register the aircraft in
accordance with FAR Part 47, Aircraft Registration.
(4) The applicant is also required to show that the aircraft
complies with the noise [[Page 20148]] standards of FAR
Secs. 21.93(b), 21.183(e), Part 36, or 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 FAR Part 34. In
addition, the applicant must show the aircraft meets the applicable
passenger emergency exist requirements of FAR Section 21.183(f) and
SFAR No. 41.
(5) During the course of the certification process, the FAA will
review records and documentation to the extent necessary to
establish that:
(i) 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 FAR Secs. 21.31, 21.50, 23.1529, 25.1529,
27.1529, 29.1529, 33.4, and 35.4. These documents must be in the
English language.
(ii) The applicant should ensure that the appropriate markings
are present in accordance with FAR Part 45. The applicant should
make available the Type Certificate Data Sheets (TCDS), aircraft
specification, or aircraft listing that is applicable.
(iii) 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 FAR Sec. 21.183(d)(2),
which provides for a 100-hour inspection, as described in FAR
Sec. 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.
(iv) 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 FAR Sec. 21.35 and 21.191(b). The
flight test must be recorded in the aircraft records in accordance
with FAR Sec. 91.417(a)(2)(i) as time in service as defined in FAR
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.
(v) Large airplanes, turbojet, or turbopropeller multiengined
airplanes must comply with the inspection program requirements of
Subpart C of FAR Part 91 or other FAR referenced therein. A
supplemental structural inspection program is also required for
certain large transport category airplanes. Reference AC 91-56,
Supplemental Structural Inspection Program for Large Transport
Category Airplanes.
(6) Inspection of the aircraft. Aircraft submitted by the
applicant for inspection will be inspected for the following:
(i) The nationality and registration marks and identification
plate should be displayed and marked in accordance with FAR Part 45.
The information presented should agree with the application for
airworthiness certification.
(ii) All equipment, both required and optional, should be
properly installed and listed in the aircraft equipment list.
(iii) Instruments and placards should be located in the
appropriate places, installed, and properly marked in the English
language.
(iv) All applicable AD's must have been complied with and
appropriately recorded.
(v) The aircraft should conform to its approved U.S. type
certificate and should be in a condition for safe operation.
(vi) 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 instructions.
Chapter 3. Applying for an Exemption
6. Administrator's Exemption Authority
a. In General. The FAA Administrator has the authority to grant
exemptions, provided certain requirements are met, to units of
government for operations that do not have public aircraft status.
The Independent Safety Board Act Amendments of 1994, Pub. L. 103-
411, provide, in pertinent part:
(1) Authority to Grant Statutory Exemptions.
(i) In General. The Administrator of the Federal Aviation
Administration may grant an exemption to any unit of Federal, State,
or local government 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 amendment made by subsection (a) of this section (the revised
``public aircraft'' definition).
Note: The above provision authorizes exemptions from the United
States Code--specifically, the Federal Aviation Act of 1958, as
amended and recodified--rather than from the regulations. The above
provision authorizes such exemptions only for operations whose
status has changed as a result of the revised definition of public
aircraft. This authorization does not apply to operations conducted
for commercial purposes, in as much as they were considered civil
aircraft operations under both the original and revised definitions.
b. Statutory Requirements. The statute provides as follows:
(1) The Administrator may grant an exemption [to a unit of
government] * * * only if--
(i) The Administrator finds that granting the exemption is
necessary to prevent an undue economic burden on the unit of
government and
(ii) The Administrator certifies 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.
Independent Safety Board Act Amendments of 1994, Section (b)(2),
Pub. L. 103-411 (emphasis added).
c. Delegation of Authority. 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 Service.
FAR Section 11.25(b)(6).
7. Key Statutory Terms
a. ``The Administrator Finds * * * and * * * Certifies.'' This
language indicates that the Administrator, or his or her delegate,
is to make an independent determination as to whether the statutory
requirements for granting an exemption have been met. This is in
contrast to an earlier portion of the statute in which the unit of
government rather than the Administrator makes the required
certifications (that the operation was necessary to respond to a
significant and imminent threat, and that no private operator was
reasonably available to meet the threat).
b. ``Undue Economic Burden.'' One finding that the Administrator
or his or her delegate must make before granting an exemption is
that the exemption is necessary to prevent an undue economic burden
on the unit of government. ``Undue economic burden'' means that it
would cost substantially more to comply with FAA regulations than
with ``an aviation safety program that is effective and appropriate
to ensure safe operations of the type of aircraft operated by the
unit of government'' under the statute's exemption provision. To
show ``substantial additional costs,'' a petitioner for exemption
should submit information that will allow the FAA to compare the
cost of operating in compliance with Part A of Subtitle VII of Title
49 of the United States Code with comparable costs if an exemption
were granted.
c. ``Aviation Safety Program.'' The Administrator or the
Administrator's delegate may not grant an exemption to a unit of
government without certifying 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.'' As a result, in the petition for an exemption, the
petitioner must show to the Administrator's satisfaction that the
petitioner's aviation safety program is effective and appropriate to
ensure safe operations of the type of aircraft operated by the
petitioner. Example: A unit of government applies for an exemption
on an aircraft whose wings were modified to carry external pods for
various surveillance activities. In its proposed aviation safety
program, the unit of government would need to identify how the
continued airworthiness of the modification will be accomplished. At
minimum, the following may be required: a special structural
inspection at the wing attach points, additional training for pilots
operating the aircraft during pod installations, and flight manual
changes to reflect any new operating limitations that may be
necessary due to the modifications.
d. Aircraft with No Previous FAA Type Certification. It may be
difficult for units of government to show that, for aircraft having
no previous FAA type certification, e.g., military surplus aircraft,
they have ``an aviation safety program that is effective and
appropriate to ensure safe operations of the type of aircraft
operated by the unit of government.'' In order to make the
``effective and appropriate aviation safety program'' finding, the
FAA must be assured that the safety of the aircraft in question is
comparable to that provided by the FAR. Aircraft that have no
history of civil [[Page 20149]] certification often present
significant ``unknowns'' when it comes to such critical safety
matters as life-limited parts and aircraft design. Thus, such
aircraft often do not have the basis on which to build an aviation
safety program that is effective and appropriate to ensure safe
operations. A unit of government developing a proposal for an
aviation safety program may find the information below helpful:
(1) Generally. Subpart E of FAR Part 91 prescribes the rules
governing the maintenance, preventative maintenance, and alterations
of U.S.-registered aircraft civil aircraft operating within and
outside the United States. FAR Sec. 91.403 states that the owner or
operator of an aircraft is primarily responsible for maintaining
that aircraft in an airworthy condition, including compliance with
FAR Part 39. FAR Part 39 describes the requirements for compliance
to AD's issued by the FAA.
(2) Inspection Programs. Operators of large aircraft, turbojet
multiengine airplanes, or turbopropeller powered multiengine
airplanes, should select and use one of the four inspection program
options outlined in FAR Secs. 91.409 (e) and (f).
(i) For one of the four inspection program options, that
identified in FAR Sec. 91.409(f)(4), the inspection program
submitted should be compared with the manufacturer's recommended
program. Where there is no manufacturer's program, a time-tested
program should be utilized. The program developed must provide a
level of safety equivalent to or greater than that provided by the
other inspection options identified in FAR, Sec. 91.409(f).
(ii) For the other three inspection options outlined in FAR
Secs. 91.409 (e) and (f), the basis for the development of the
inspection program or the instructions for continued airworthiness,
including the detail of the parts and areas of the airplane to be
inspected, is the manufacturer's recommendations. In the case of
surplus military aircraft, the manufacturers provide this basic
information to the specific military service that has contracted for
the airplane. The military service then develops a reliability-
centered maintenance program to meet its needs and environment which
are often comparable to the continuous airworthiness maintenance
programs developed by air carriers.
(iii) In many cases, manufacturers may be unwilling or unable to
provide instructions for continued airworthiness for operation of
the airplane in other than a military environment. Therefore, in
keeping with existing policy as provided by the FAA, the only
reasonable basis that for detailing the inspection criteria for the
aircraft to be inspected, as required by FAR Sec. 91.409(g)(1), is
the scope and detail developed by the applicable military service.
(iv) In addition to the ``field'' level inspection requirements
set forth in the military maintenance program, the ``depot'' level
inspection requirements should also be included in any inspection
program approved under FAR Sec. 91.409(f)(4). The military ``field''
level maintenance is roughly equivalent to the civil terminology
that air carriers use to describe ``A, B or C'' checks. The military
``depot'' level maintenance is comparable to the ``heavy C or D''
checks used by air carriers. Some air carriers may use a numerical
description verses the alphabetical identifier for inspection
checks.
(v) The inspection frequency and program structure established
by the military may not be appropriate for use in a civilian
environment. Therefore, inspection frequency and program structure
may require adjustment to meet the government operator's
requirement. However, facts and sound judgment must form the basis
for any inspection frequency adjustment beyond that which has been
established for use by the military.
(vi) An alternate means of compliance for individual specific
inspection requirements, in lieu of that which is called for in the
military ``field'' or ``depot'' level programs, may be approved
following evaluation of the applicant's inspection process
instructions.
(vii) Revisions to an operator's existing approved inspection
program can be requested by the Administrator in accordance with FAR
Sec. 91.415.
(3) Persons Conducting Inspections and Maintenance. The program
proposed by the petitioner should include procedures to insure that
inspections and maintenance tasks are performed by persons
authorized by FAR Secs. 43.5 and 43.7.
(4) Modifications and Repairs. The program must identify all
major modifications and repairs accomplished since the aircraft was
put into service. Additionally, all further modifications and major
repairs will need to be approved in the same format as required for
civil aircraft under the regulations.
8. Petition for Exemption
a. Procedure. FAR Sec. 11.25--contains the procedures to be
followed by a unit of government seeking any kind of exemption. The
petition for exemption should be submitted in duplicate to the Rules
Docket (AGC-10), Federal Aviation Administration, 800 Independence
Avenue, SW., Washington, DC 20591. Under FAR Part 11, petitions for
exemption are published in the Federal Register for notice and
comment period.
b. Contents. The petition for statutory exemption must set forth
the text or substance of the statute from which the exemption is
sought. (As noted above, Congress authorized exemptions from the
statute--the Federal Aviation Act of 1958, as amended and
recodified--rather than from the regulations). The petition for
exemption must contain any information, views, or analysis available
to the petitioner to show that the statutory requirements for
granting an exemption have been met--i.e.:
(1) That the exemption is necessary to prevent an undue economic
burden on the unit of government; and
(2) 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. Individuals drafting
a petition for exemption on behalf of a unit of government should
familiarize themselves with FAR Part 11.
[FR Doc. 95-10052 Filed 4-19-95; 3:14 pm]
BILLING CODE 4910-13-M
