[Federal Register Volume 60, Number 16 (Wednesday, January 25, 1995)]
[Rules and Regulations]
[Pages 5074-5076]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-1744]




[[Page 5073]]

_______________________________________________________________________

Part VIII





Department of Transportation





_______________________________________________________________________



Federal Aviation Administration



_______________________________________________________________________



14 CFR Parts 1, 11, and 121



Public Aircraft Definition and Exemption Authority; Final Rule

  Federal Register / Vol. 60, No. 16 / Wednesday, January 25, 1995 / 
Rules and Regulations   
[[Page 5074]] 

DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration

14 CFR Parts 1, 11, and 121

[Docket No. 28060; Amdt. No. 1-39, 11-38; SFAR 38-2]
RIN 2120-AF59


Public Aircraft Definition and Exemption Authority

AGENCY: Federal Aviation Administration (FAA), DOT.

ACTION: Final rule, request for comments.

-----------------------------------------------------------------------

SUMMARY: This rule amends the Federal Aviation Regulations to reflect 
statutory changes in the definition of public aircraft and the FAA 
Administrator's new authority to grant exemptions from statutory 
requirements, under certain conditions, to units of Federal, state, and 
local government for operations of government-owned aircraft. This rule 
is necessary to implement the Airport and Airway Improvement Act 
Amendments of 1987 and Independent Safety Board Act Amendments of 1994.

DATES: This final rule is effective April 23, 1995. Comments must be 
submitted on or before February 24, 1995.

ADDRESSES: Send comments in duplicate to: Federal Aviation 
Administration, Office of the Chief Counsel, ATTN: Rules Docket (AGC-
200), Docket No. 28060, 800 Independence Avenue SW., Washington, DC 
20591.

for further information contact: David Catey, (AFS-220), (202) 267-
8094, 800 Independence Avenue SW., Washington, DC 20591.

supplementary information: On December 30, 1987, and October 25, 1994, 
the President signed into law the Airport and Airway Improvement Act 
Amendments of 1987 and the Independent Safety Board Act Amendments of 
1994, respectively, each of which changed the statutory definition of 
the term ``public aircraft.'' Public aircraft are exempt from many FAA 
regulations.
    Under the 1987 Amendment, an aircraft leased by a government, other 
than the Federal Government, remains a civil aircraft unless the lease 
is exclusively for the use of that government for not less than 90 
continuous days. Under the 1994 Amendments, many aircraft previously 
considered public aircraft will be subject to FAA safety regulations on 
the effective date of those amendments. For example, when the change in 
the definition enacted by the 1994 Amendment becomes effective, 
government-owned aircraft used to transport passengers will, except in 
limited circumstances, no longer be considered public aircraft. 
Therefore, the operators of such aircraft will have to meet civil 
aircraft requirements, including those for certification, maintenance, 
and training, unless they qualify for narrowly defined exemptions. 
Aircraft operated by the Armed Forces and intelligence agencies, 
however, will retain their public aircraft status unless operated for a 
commercial purpose.
    Although the 1994 Amendment gives the FAA Administrator certain 
authority to grant exemptions to ``units of government'' from the 
statutory requirements applicable to civil aircraft, the agency expects 
to invoke that exemption authority only when the public interest 
clearly demands it. To obtain an exemption under the statute, a unit of 
government must show that granting the exemption is necessary ``to 
prevent an undue economic burden on the unit of government,'' and 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.'' In acting on any exemption 
request the FAA will assess the safety of the operation in question. 
The FAA is developing guidance in the form of an advisory circular for 
use in this process. It should be noted that, it is unlikely that the 
FAA will be able to grant exemptions from type certification and 
airworthiness requirements for aircraft that have no history of civil 
certification.
    In a notice published in the Federal Register on August 1, 1994, 
(59 FR 39192) the FAA invited comment on the question whether 
intergovernmental reimbursement for the use of government-owned 
aircraft prevents the aircraft involved from meeting the definition of 
public aircraft and, therefore, requires compliance with all safety 
regulations applicable to civil aircraft. That issue has been clarified 
by the 1994 Amendment, and the FAA will not be taking further action on 
that Notice.
    As to whether public aircraft status is lost when one government 
reimburses another for the use of its aircraft, under the 1994 
Amendment, if there is cost reimbursement, the aircraft will be civil 
aircraft unless the appropriate unit of government 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.''
    To implement both the 1987 and 1994 Amendments, this rule amends 
the definition of ``public aircraft'' in 14 CFR part 1. This rule also 
amends 14 CFR part 11 to reflect the Administrator's new statutory 
exemption authority concerning government-owned aircraft. While the 
Administrator's exemption authority in the past has been limited to 
exemptions from rules rather than from statutes, in this case Congress 
granted the Administrator the authority to grant exemptions from the 
statute--specifically, ``from any requirement of part A of subtitle VII 
of title 49, United States Code.'' Pub. L. 103-411. As a result, this 
rule modifies Section 11.25(b)(3) to include exemptions, for 
government-owned aircraft only, from statutes as well as from rules.
    One final conforming change to the regulations is in the 
applicability section of SFAR No. 38-2, entitled ``Certification and 
Operating Requirements.'' In its present form, the applicability 
section provides that: ``This Special Federal Aviation Regulation 
applies to persons conducting commercial passenger operations, cargo 
operations, or both * * *.'' This rule adds the words ``operating civil 
aircraft in'' to the applicability statement. The new law permits some 
public aircraft operations for which compensation is received. This 
change is necessary to assure that regulations intended only for 
application to civil aircraft are not inadvertently applied to public 
aircraft when public aircraft are permitted to be operated for 
compensation or hire.

Good Cause for Immediate Adoption

    The FAA finds that notice and public comment on this rulemaking are 
unnecessary. This final rule is intended merely to conform the 
regulations to the statute. It is, in essence, a technical amendment 
that involves no exercise of agency discretion. The FAA is simply 
changing the rules to reflect, as closely as possible, the new 
statutory language. As a result, the agency for good cause finds that 
``notice and public procedure thereon'' are unnecessary with the 
meaning of 5 U.S.C. 553(b)(B) of the Administrative Procedure Act. 
Individuals will have an opportunity to submit comments concerning this 
final rule by February 24, 1995.

Economic and Other Analyses

    This amendment merely conforms FAA rules to the 1987 and 1994 
Amendments to the law. Federal regulations must conform to the law, 
therefore the FAA has no discretionary power in this matter. 
Consequently, a Regulatory Evaluation of the costs and 
[[Page 5075]] benefits of this change would serve no useful purpose and 
none was prepared. While meeting these new requirements may result in 
costs to units of government, including the FAA, these costs are a 
result of the law and not the regulation. The law does give the FAA 
Administrator discretionary authority to grant exemptions from certain 
statutory requirements when the existing safety program of the unit of 
government is effective to ensure safe operations and conformance with 
federal regulations pertaining to civil aircraft would constitute ``an 
undue economic burden'' as previously discussed. Economic 
considerations will be evaluated by the FAA on a case-by-case basis at 
the time exemptions are requested.
    For the same reason explained above, the other analyses and 
determinations normally made a part of rulemaking procedures are 
determined to be unnecessary in this case and are not included in this 
document: an analysis of whether there is a significant economic impact 
on a substantial number of small entities, an international trade 
impact assessment, a federalism assessment.

Paperwork Reduction Act

    This rule contains no information collection requests requiring 
approval of the Office of Management and Budget pursuant to the 
Paperwork Reduction Act (44 U.S.C. 3507 et seq.).

Conclusion

    For the reasons discussed in the preamble the FAA has determined 
that this final rule is not significant under Executive Order 12866 or 
DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 
1979).

List of Subjects

14 CFR Part 1

    Air transportation, Public aircraft.

14 CFR Part 11

    Administrative practice and procedure, Reporting and recordkeeping 
requirements, Exemptions.

14 CFR Part 121

    Air carriers, Aircraft, Aviation safety, Reporting and 
recordkeeping requirements.

The Amendment

    Accordingly, 14 CFR parts 1, 11, and 121 are amended as follows:

PART 1--[AMENDED]

    1. The authority citation for Part 1 continues to read as follows:

    Authority: 49 U.S.C. app. 1347, 1348, 1354(a), 1357(d)(2), 1372, 
1421 through 1430, 1432, 1442, 1443, 1472, 1510, 1522, 1652(e), 
1655(c), 1657(f); 49 U.S.C. 106(g).

    2. Section 1.1 is amended by revising the definition of ``Public 
aircraft'' to read as follows:


Sec. 1.1  General definitions.

 * * * * *
    Public aircraft means an aircraft used only for the United States 
Government, or 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 does not include a 
government-owned aircraft transporting property for commercial 
purposes, or transporting passengers other than 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 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. 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 Chapter 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.
 * * * * *

PART 11--[AMENDED]

    3. The authority for Part 11 continues to read as follows:

    Authority: 49 U.S.C. app. 1341(a), 1343(d), 1348, 1354(a), 1401 
through 1405, 1421 through 1431, 1481, 1502; 49 U.S.C. 106(g).

    4. Section 11.25 is amended by revising paragraph (b)(3), by 
removing ``and'' from the end of paragraph (b)(4), by removing the 
period at the end of paragraph (b)(5) and adding ``; and'' in its 
place, and by adding paragraph (b)(6) to read as follows:


Sec. 11.25  Petitions for rulemaking or exemptions.

* * * * *
    (b) * * *
    (3) Set forth the text or substance of the rule or amendment 
proposed, or of the rule or statute from which the exemption is sought, 
or specify the rule that the petitioner seeks to have repealed, as the 
case may be;
* * * * *
    (6)(i) In the case of a unit of Federal, state, or local government 
that is applying for an exemption 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 statutory change in the definition of public aircraft 
made by the Independent Safety Board Act Amendments of 1994, Public Law 
103-411, the petition for exemption must contain any information, 
views, analysis, or arguments available to the petitioner to show that:
    (A) The exemption is necessary to prevent an undue economic burden 
on the unit of government; and
    (B) The aviation safety program of the unit of government is 
effective and appropriate to ensure safety operations of the type of 
aircraft operated by the unit of government.
    (ii) The authority of the Administrator, under the Independent 
Safety Board Amendments of 1994, Pub. L. 103-411, to grant exemptions 
to units of government is delegated to the Director, Flight Standards 
Service, and the Director, Aircraft Certification Service.
 * * * * *

PART 121--[AMENDED]

    5. The authority citation for part 121 continues to read as 
follows:

    Authority: 49 U.S.C. app. 1354(a), 1355, 1356, 1357, 1401, 1421-
1430, 1472, 1485, 1502; and 49 U.S.C. 106(g).

    6. Section 1(a) introductory of SAFAR No. 38-2, located in the CFR 
at the beginning of Part 121, is revised to read as follows:

SFAR No. 38-2--Certification and Operating Requirements

* * * * *
    1. Applicability.
    (a) This Special Federal Aviation Regulation applies to persons 
operating civil [[Page 5076]] aircraft in commercial passenger 
operations, cargo operations, or both, and prescribes--
* * * * *
    Issued in Washington, DC on January 6, 1995.
David R. Hinson,
Administrator.
[FR Doc. 95-1744 Filed 1-20-95; 4:26 pm]
BILLING CODE 4910-13-M