[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]
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