Staying Legal: Public Aircraft

Policy change will affect contract operators and government

The last time we took a look at the operation of public aircraft was when it was affected by a new statute. It was called the Independent Safety Board Act Amendment of 1994, enacted on Oct. 25, 1994. At that time, as I mentioned in my article, this statute was designed to correct safety deficiencies in the operation of public aircraft, as well as provide a level playing field for competition. It became effective on April 23, 1995.

Maintenance activities with regard to these aircraft became much more focused and technicians were cautioned in regard to expanded surveillance of the aircraft involved, adherence to FARs, and more importantly, insurance coverage for these aircraft, would now require more attention to maintenance operations. Since that time public aircraft was long considered to be a quiet backwater corner of air activities until just the recent past, when contractor helicopter and fixed wing accidents were increasing with some regularity and the issue of public vs. private flight activities got involved, and of course the accident lawyers.

In our search for information on the mechanics IA issue recently in the Federal Register I ran across another Notice of Policy Change (not regulatory) Regarding Civil Aircraft Operators Providing Contract Support to Government Entities (Public Aircraft Operations) dated March 23, 2011. This brought my attention to the matter of public aircraft again after some 16 years had gone by. Keep in mind that “Policy Change” is the FAA shortcut way to enacting a regulatory mandate, attempting to skirt the Administrative Procedures Act that requires a much more prolonged examination of the problem.

Public aircraft:  FAR 1

“Public Aircraft means aircraft used only in the service of a government or political subdivision. It does not include any government owned aircraft engaged in carrying persons or property for commercial purposes.”

As we can see by the definition, we are talking about the FAA and the government fleet itself, the Forest Service, various sheriffs’, police department and fire department flight operations in surveillance, medivac, and rescue operations, and DEA and FBI among others. But what we are addressing is the performance of these functions by contract civil operators being hired to do the work of the public aircraft.

Until the passage of the 1994 Act noted above, public aircraft were exempted from compliance with Federal Air Regulations, and technically, their operators did not even need a pilot’s license. In addition, airworthiness and maintenance certification was not required. Although most of the public agencies followed all the rules, there was no specific requirement to do so. This all changed in 1994 and private contracted aircraft and the government-owned public aircraft were both to be maintained at the same regulatory level. As a practical matter, the private operators and the government people had the same maintenance requirements. Their maintenance costs now had to be about the same, since they both must adhere to all the FARs. Any question about who will spend more?

The present problems

Title 49 US Code section 40102(a)(41) provides the definition of public aircraft, as above. 49 US Code section 40125 provides the qualifications for public aircraft status. The FAA now recognizes that these definitions are difficult to apply to aircraft operations conducted by civil contractors for government entities and therefore has proposed to make certain changes in its policy regarding contractors.

Where the distinctions get sticky is in the case of accidents and once the lawyers get involved in accidents they do get sticky. So the FAA has set out some new guidelines to be followed all in the hope of clearing up some areas of confusion. It’s all about money.

The following simple steps have been proposed by the FAA:

1. Public aircraft status is not an automatic status granted by the existence of a contract between a civil operator and a government agency;

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