[Federal Register Volume 59, Number 146 (Monday, August 1, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-18546]
[[Page Unknown]]
[Federal Register: August 1, 1994]
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Part V
Department of Transportation
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Federal Aviation Administration
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14 CFR Part 1
Use of Public Aircraft; Proposed Rule
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DEPARTMENT OF TRANSPORTATION
Federal Aviation Administration
14 CFR Part 1
[Docket No. 27836]
Use of Public Aircraft
AGENCY: Federal Aviation Administration, DOT.
ACTION: Notice of reconsideration of legal interpretation and
invitation for comments.
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SUMMARY: The Federal Aviation Administration (FAA) is reconsidering a
previously issued legal interpretation of the term ``commercial
purposes'' used in the definition of ``public aircraft'' that appears
in the Federal Aviation Act of 1958, as amended. The reason for this
action is to assess whether the interpretation is appropriate, and if
it is not, to issue an appropriate interpretation.
DATES: Comments must be received on or before August 31, 1994.
ADDRESSES: Send comments in duplicate to: Federal Aviation
Administration, Office of the Chief Counsel, ATTN: Rules Docket (AGC-
200), Docket No. 27836, 800 Independence Avenue SW., Washington, DC
20591.
FOR FURTHER INFORMATION CONTACT:
John Walsh (AGC-100), (202) 376-6406, 701 Pennsylvania Avenue NW.,
Suite 925, Washington, DC 20004.
SUPPLEMENTARY INFORMATION: Under the Federal Aviation Act of 1958
(Act), as amended, aircraft fall into one of two major categories,
``civil'' or ``public''. Civil aircraft are regulated in every aspect
of their construction, maintenance, and operation by the Federal
Aviation Administration (FAA). Public aircraft are free from such
regulation except with regard to air traffic rules.
The two classes of aircraft are defined in the Act as follows:
``Civil aircraft'' means any aircraft other than a public
aircraft.
``Public aircraft'' means any aircraft used exclusively in the
service of any government or of any political subdivision thereof
including the government of any State, Territory, or possession of
the United States, or the District of Columbia, but not including
any government-owned aircraft engaged in carrying persons or
property for commercial purposes. For purposes of this paragraph,
``used exclusively in the service of'' means, for other than the
Federal Government, an aircraft which is owned and operated by a
governmental entity for other than commercial purposes or which is
exclusively leased by such governmental entity for not less than 90
continuous days.
Act, Section 101 (17), (36); 49 U.S.C. App. 1301 (17), (36).
In April, 1993, in response to an inquiry from a private sector
operator, I issued an interpretation of the term ``used for commercial
purposes'' as that term appears in the definition of ``public
aircraft'' in the Act. Under the interpretation, a government-owned
aircraft must be operated under the Federal Aviation Regulations (FAR)
applicable to civil aircraft when compensation is received for
operating the aircraft on behalf of another state or local government.
The interpretation was not new in its analytical approach. It only
restated, in the context of a novel question, the FAA's previous
interpretations that receipt of any compensation for the operation of
one's aircraft constitutes operating the aircraft for ``commercial
purposes'' within the meaning of the statutory definition. When a
county sheriff whose operation was the subject of the interpretation
became aware of the interpretation, he asked for the opportunity to
submit information and argument on the subject. I agreed to reconsider
the interpretation, and the sheriff submitted information. In the
meantime, others who became aware of the reconsideration process
submitted information, also. After consideration of all the submitted
information found relevant to the legal question, I confirmed the
interpretation in a letter to the sheriff's county attorney, dated
December 1993.
That letter has apparently been widely disseminated among private
and public sector operators that have an interest in the issue. Since
its issuance, the FAA has been advised by local government agencies, by
Federal government agencies, and by Congressional sources, that the
interpretation is having an unintended effect that they view as
detrimental to public safety. These sources advise that certain public
agencies' wildfire suppression capabilities are reduced by the
unavailability of aircraft that do not comply with the FAR, but which
previously had been considered by those public agencies to be available
for those uses. The FAA has been advised that this shortage creates an
imminent danger to life and property from wildfires.
Some of those same sources have also urged that the FAA reconsider
whether reimbursement by one government entity to another for the use
of the latter's aircraft to carry out a governmental duty of the
reimbursing agency constitutes ``commercial purposes'' within the Act.
In support of their request, they have provided a legal analysis of the
Act that is different from the FAA analysis and that warrants
consideration.
In further support of reconsideration, the sources point to what
they consider an anomalous result when the law is applied as
interpreted. That is, a government entity can use its aircraft in fire
suppression activities on its own land without complying with the FAR,
but must comply with the FAR when operating on behalf of another
jurisdiction, only because the economics of government require
reimbursement in the latter case. This circumstance, they urge,
indicates that the FAA is making decisions based on economic factors
rather than on safety considerations. Finally, the same sources urge
expedited treatment of the request for reconsideration in view of the
emergency circumstances they perceive to be extant in regard to
wildfires in the western forests.
At the same time, other interested parties have urged that there
are sufficient private sector resources available to support wildfire
suppression activities. Those parties claim to be disadvantaged in
their efforts to obtain contracts to perform that work by the fact that
public sector aircraft do not have to bear the cost of compliance with
the FAR. These parties also urge that their operations are, by virtue
of their compliance with the FAR, inherently safer than public aircraft
operations.
In view of the public safety situation that has been reported to
the FAA; the apparently anomalous situations permitted by the Act as
currently interpreted, and the possible merits of a different legal
interpretation of the Act that has been provided to the FAA, it is
appropriate to reconsider whether reimbursement by one government for
the use of another government's aircraft to carry out a governmental
duty means the resulting operation is for a commercial purpose. The
arguments advanced in support of such review suggest some uncertainty
in the statutory definition, as applied to intergovernmental
reimbursement, and it is possible that, upon reconsideration, a
different interpretation might be reached. The parties to whom the
previous interpretation was issued, as well as other parties who have
recently written the agency expressing concern, are being advised by
mailed copies of this notice that the matter is again under review.
This reconsideration should be completed within 90 days. Interested
persons are invited to submit any arguments, views, or information they
consider relevant. All material received 30 days after publication date
will be considered in coming to a final interpretation. Later received
material may be considered as time allows. All material submitted will
be available for review and copying by interested persons in the FAA
Rules Docket No. 27836 at the address given above. All material relied
upon in the interpretative process to date is available in the docket
as of the date of this announcement.
Issued in Washington, DC on July 26, 1994.
John H. Cassady,
Deputy Chief Counsel.
[FR Doc. 94-18546 Filed 7-29-94; 8:45 am]
BILLING CODE 4910-13-M
