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Staying Legal: Public Aircraft

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;

2. The FAA considers ALL contracted operations to be civil aircraft operations unless;

3. The contracting entity provides the operator with a written declaration (from the contracting officer or higher level official) of public aircraft status for designated qualified flights;

4. The contracted operator notifies the FAA Flight Standards District Office (FSDO) having oversight of the operator (or the operation as appropriate) that it has contracted with a government entity to conduct eligible public aircraft operations.

    5. The contracted operator submits the written declaration to the FSDO with jurisdiction having oversight;

    6. The flights(s) in question are determined to be legitimate public aircraft operations under the terms of the statute;

      7. The declaration is made in advance of the proposed public aircraft flight.   

      The proposal goes on to say in essence that the contracted parties (civil operators and government) should both understand that the operators can create a significant level of liability placed on the government and/or likewise on themselves depending on their status. Further, civil operators are reminded that without public status their operations are controlled by all applicable civil aviation regulations and that the FAA retains oversight and enforcement authority over them for any violations.          

      Civil operators should also refuse to accept a contract to perform operations that violate 14 CFR regs if they cannot be sure that the government entity offering the contract has declared it to be a public aircraft operation and that such flight meets the eligibility requirements as outlined in the statute.

      It does not take a lawyer to figure out that this whole attempt at regulating the status of aircraft used in public activities is all about money and who is liable for any accidents that occur or incidents regarding FAR violations or both. In other words, who pays? The only thing that I find surprising about the whole thing is that it has taken so long to get these arrangements down on paper! What about provisions for emergency operations where time may not permit the paper chase? Will there be situations where common sense may supercede a paper requirement? Will the issue of separation and separate tally of contract accidents vs. government flight accidents be involved?

      Furthermore, some have proposed for example that ALL search and rescue operations where public aircraft are used, contractors or not, and where a person is picked up and taken to medical care, should be considered a public aircraft operation with all the attendant factors attached, as long as it is declared an emergency by the government, whoever and what ever it shall be. Should this be included in this FAA policy change proposal also? Is it not a logical extension of the mission?

      It is interesting to note that the proposal invites no comments from the civil aircraft contract operators at this time. They are only requesting comments from government entities with experience using civil operators under contract. This appears to be a one-sided approach. Certainly, there are civil operator contractors, pilots, and technicians who may want to weigh in and comment on this subject. Comments are directed to PublicAircraft@faa.gov.

      The contact information noted as: Monica C. Buenrostro, General Aviation and Commercial Division, Flight Standards Service, AFS 800, Federal Aviation Administration, 800 Independence Ave., S.W., Washington, D.C. 20591. email: monica.c.buenrostro@faa.gov. Tel: (202) 287-8212. Comments are to be received until April 22, 2011. Since you who might wish to comment will be reading this piece well after this date you should keep in mind that they are usually accepted after the termination date and extensions are also routinely granted.

      Stephen P. Prentice is an attorney whose practice involves FAA-NTSB issues. He has an Airframe and Powerplant certificate and is an ATP rated pilot. He worked with Western Airlines and the Allison Division of GMC in Latin America, servicing commercial and military overhaul activities and is a USAF veteran. Send comments to email: aerolaw@att.net.

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