[Federal Register Volume 60, Number 17 (Thursday, January 26, 1995)]
[Notices]
[Pages 5237-5246]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-1919]
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DEPARTMENT OF TRANSPORTATION
Federal Aviation Administration
[AC No. 00-1.1]
Proposed Advisory Circular on Government Aircraft Operations
AGENCY: Federal Aviation Administration, DOT.
ACTION: Request for comments on proposed advisory circular.
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SUMMARY: Proposed Advisory Circular (AC) 00-1.1, Government Aircraft
Operations, provides guidance on whether particular government aircraft
operations are public aircraft operations of civil aircraft operations
under the new statutory definition of ``public aircraft.'' This AC
contains the FAA's intended application of key terms in the new
statutory definition. For operations that have lost public aircraft
status under the new law, this AC provides information on bringing
those operations into compliance with FAA safety regulations for civil
aircraft. It also provides information on applying for an exemption.
DATES: Comments must be received on or before February 27, 1995.
ADDRESSES: Written comments are invited on all aspects of the proposed
AC. Commenters must identify file number AC 00-1.1, Government Aircraft
Operations. Send all comments on the proposed AC to the following
location: Federal Aviation Administration, Flight
[[Page 5238]] Standards Service, Air Carrier Branch (Attention; AFS-
200), 800 Independence Avenue, SW., Washington, DC 20591.
FOR FURTHER INFORMATION CONTACT:
David Catey, Air Carrier Branch (AFS-220), (202) 267-8094, 800
Independence Avenue SW., Washington, DC 20591.
SUPPLEMENTARY INFORMATION: This AC provides guidance on the FAA's
application of the new definition of public aircraft enacted in the
Independent Safety Board Act Amendments of 1994, Pub. L. 103-411. This
guidance material supplements the final rule titled ``Public Aircraft
Definition and Exemption Authority.'' Because Pub. L. 103-411 becomes
effective April 23, 1995, the AC is published in its entirety to allow
commenters access to the document as quickly as possible.
Issued in Washington, DC on January 20, 1995.
William J. White,
Deputy Director, Flight Standards Service.
1. Purpose. The purpose of this advisory circular (AC) is to
provide guidance on whether particular government aircraft operations
are public aircraft operations or civil aircraft operations under the
new statutory definition of ``public aircraft.'' This AC contains the
Federal Aviation Administration's (FAA) intended application of key
terms in the new statutory definition. For operations that have lost
public aircraft status under the new law, this AC provides information
on bringing those operations into compliance with FAA safety
regulations for civil aircraft. It also provides information on
applying for an exemption. This AC provides acceptable, but not
exclusive, means of complying with the law.
2. Reference. 49 U.S.C. 40102(A)(37).
3. Related Material:
a. AC 00-2.8, Advisory Circular Checklist, lists documents that
provide guidance on many of the processes required to be followed in
the certification and operation of civil aircraft.
b. AC 00-44FF, Status of Federal Aviation Regulations, provides the
current public status of the Federal Aviation Regulations (FAR),
prices, and order forms.
c. AC 20-132, Public Aircraft, provides guidance that public
aircraft status under the Federal Aviation Act does not permit
operations outside the territorial limits of the United States without
a valid airworthiness certificate.
d. AC 120-12A, Private Carriage Versus Common Carriage of Persons
or Property, furnishes general guidelines for determining whether
transportation operations by air constitute private or common carriage.
e. AC 120-49, Certification of Air Carriers, provides information
and guidance on the certification process for air carriers under FAR
Parts 121 and 135.
f. Guide to Federal Aviation Administration Publications provides
guidance on identifying and obtaining FAA and other aviation-related
publications issued by the Federal Government.
Note: Copies of the above documents may be obtained from the
Department of Transportation, M-45.3, General Services Section,
Washington, DC 20590.
Thomas C. Accardi,
Director, Flight Standards Service.
Contents
Chapter 1. Determining Whether Aircraft Operations Are Public or Civil
1. Public Aircraft Definition.
a. Background.
b. Legislative History.
c. Statutory Text.
d. Operational Nature of Definition.
e. Effective Date.
2. Key Statutory Terms.
a. ``For Commercial Purposes.''
b. ``Whose Presence Is Required to Perform.''
c. ``Associated With the Performance of.''
d. ``A Governmental Function Such as . . . .''
(1) Examples.
(2) ``Firefighting.''
(3) ``Search and Rescue.''
(4) ``Law Enforcement.''
(5) ``Aeronautical Research.''
(6) ``Biological and Geological Resource Management.''
e. ``Cost Reimbursement Agreement.''
f. ``Unit of Government.''
g. ``Certifies.''
h. ``Significant and Imminent Threat . . . .''
i. ``No Service by a Private Operator . . . Reasonably
Available.''
Chapter 2. Bringing Operations Into Compliance
3. Basic Types of Civil Aircraft Operations.
a. FAR Part 91.
b. FAR Part 125.
c. FAR Part 121 or 135.
d. FAR Part 133.
e. FAR Part 137.
4. Pilot Certification.
a. Generally.
b. Domestic Aircraft.
c. Foreign Aircraft.
d. Medical Certification.
e. Instrument Rating.
5. Aircraft Certification.
a. Generally.
b. Type Certification.
c. Aircraft Previously Type Certificated.
d. Aircraft With No Prior Certification.
e. Airworthiness Certification.
f. Procedures for Obtaining Certificate.
Chapter 3. Applying for an Exemption
6. Administrator's Exemption Authority.
a. In General.
b. Statutory Requirements.
c. Delegation of Authority.
7. Key Statutory Terms.
a. ``The Administrator Finds . . . and . . . Certifies.''
b. ``Undue Economic Burden.''
c. ``Aviation Safety Program.''
d. Aircraft Ineligible for Airworthiness Certificates.
8. Petitions for Exemption.
a. Procedure.
b. Contents.
Chapter 1. Determining Whether Operations are Public or Civil
1. Public Aircraft Definition
a. Background. In recent years, there has been a growing concern
about the safety of public aircraft, which are statutorily exempt from
most types of FAA regulation.
(1) Intergovernmental reimbursement for the use of government-owned
aircraft has also engendered a great deal of controversy.
Intergovernmental reimbursement is involved when, for example, state
and local governments enter into agreements with each other whereby one
government reimburses the other for flying firefighting, rescue, or
other missions for it. Some private operators have claimed that state
and local governments have competed with them unfairly under the public
aircraft exemption. The FAA's longstanding interpretation has been that
where there is an exchange of money, an operation is ``for commercial
purposes'' and does not have public aircraft status--i.e., such an
operation is a civil aircraft operation. Many government operators
objected that this interpretation made it impossible to carry out their
missions, because it is impractical to obtain the services
commercially, and too costly to change many of their aircraft to meet
FAA requirements for civil aircraft.
(2) In response to this controversy, the FAA announced in the
Federal Register on August 1, 1994, that it would reconsider whether
intergovernmental reimbursement negates public aircraft status. The FAA
invited comment from interested parties, 59 FR 39192, and planned to
announce its decision by the end of the year.
(3) On October 9, 1994, Congress passed the Independent Safety
Board Act Amendments, Pub. L. 103-411, which contained a major change
in the definition of ``public aircraft.'' The new law made the FAA's
planned reconsideration unnecessary. Under the new law, where
intergovernmental reimbursement occurs, the aircraft is a civil
aircraft unless the appropriate unit of government certifies ``that the
[[Page 5239]] 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.''
b. Legislative History. The purpose of the new law, as reflected in
the legislative history, is twofold.
(1) First, in the words of Senator Pressler, the purpose of the new
law is ``to mandate that FAA safety regulations, directives, and orders
issued for civil aircraft be made applicable to all government-owned,
nonmilitary aircraft engaged in passenger transport. * * * [T]he
Administrator would be allowed to waive FAA requirements for public
aircraft provided an equivalent level of safety has been established by
the governmental entity responsible for the aircraft.'' Congressional
Record, S14419-S14420 (October 6, 1994).
(2) A second purpose reflected in the legislative history concerned
emergency situations like wildfires. As Senator Gorton stated ``the
summer wildfires had a drastic impact throughout the State of
Washington. Local governments were frustrated that although fires were
burning, all available resources could not be utilized. Emergency or
not, it is presently prohibited for public agencies to reimburse one
another for the use of helicopters. The language in this bill will now
give authority to local governments to respond immediately to emergency
situations without having to cut through the bureaucratic red tape. In
certain cases, where an imminent threat is looming and private
operators are not readily available, public agencies will be allowed to
use each other's helicopters. This language helps ensure that when an
emergency breaks out, all aircraft--public and private--will be
available to respond without delay.'' Id. at 14419.
c. Statutory Text. The new definition of public aircraft enacted by
Congress is as follows:
(1) an aircraft--
(i) used only for the United States Government; or
(ii) 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
(2) does not include a government-owned aircraft--
(i) transporting property for commercial purposes; or
(ii) transporting passengers other than--
(I) 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
(II) 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.
(3) 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 part 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. 49 U.S.C. 40102(a)(37).
d. Operational Nature of Definition. The status of an aircraft as
``public aircraft'' or ``civil aircraft'' depends on its use in
government service and the type of operation that the aircraft is
conducting at the time. Rather than speaking of particular aircraft as
public aircraft or civil aircraft, it is more precise to speak of
particular operations as public aircraft or civil aircraft in nature.
If a flight is a mixture of both public aircraft and civil aircraft
operations, then it is considered a civil aircraft operation.
(1) Example: An aircraft owned by a state government is used in the
morning for a search and rescue mission that meets the statutory
definition of public aircraft in all respects. For the search and
rescue operation, the aircraft is a public aircraft. Later that same
day, however, when the aircraft is used to fly the governor of the
state from one meeting to another, the aircraft loses its public
aircraft status and is instead a civil aircraft.
(2) Caution: Care must be taken when aircraft are used in both
public and civil aircraft operations. Before such aircraft are returned
to civil operations, the government operator may need to record in the
aircraft records that the aircraft has been returned to civil status by
someone authorized to do so under FAR Part 43, if equipment was removed
and replaced to accommodate the governmental function.
e. Effective Date. The effective date of the new statute is April
23, 1995.
2. Meaning of Key Statutory Terms. The FAA interprets various
words, phrases, and clauses in the statutory definition (in their order
of appearance in the statute) as follows:
a. ``For Commercial Purposes.'' This term basically means ``for
compensation or hire'' as that term historically has been defined by
the FAA. The test for determining whether a particular operation is
``for compensation or hire'' is whether the operator receives direct or
indirect remuneration for the operation. The remuneration need not be
in the form of money; the receipt of other items of value, such as good
will or the logging of flight time, have also been held to make an
operation ``for compensation or hire.'' Furthermore, no profit need be
made; an operation may be ``for compensation or hire'' even if the
operator takes a loss. When the operator is a governmental entity,
reimbursement from a party not sharing a common treasury with the
governmental entity makes the operation ``for commercial purposes.''
Examples:
(1) One state agency reimburses another agency of the same state
for conducting operations on its behalf using a state-owned aircraft.
Where the two state agencies share a common treasury, the operation is
not ``for commercial purposes'' within the meaning of the statute.
(2) A Federal agency reimburses a state agency for conducting
aircraft operations on its behalf. This operation is a civil aircraft
operations, unless the Federal agency certifies to the FAA
Administrator 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, then the aircraft will be a public
aircraft. See paragraphs 2 (g) through (i) below.
(3) Flight instruction is offered as part of the curriculum at a
state university. The flights involving student instruction are ``for
commercial purposes,'' within the meaning of the statute, because
students pay tuition to the university for their instruction. Under FAR
Section 135.1(b)(1), flights involving student instruction are excepted
from the air taxi and commercial operator regulations of FAR Part 135.
Instead, they are governed by FAR Part 91. [[Page 5240]]
b. ``Whose Presence Is Required to Perform.'' This phrase means
either a crewmember or a non-crewmember who will participate in
carrying out the governmental function. Examples:
(1) Firefighters who are being carried to a fire scene to fight the
fire, when the aircraft is also used for aerial assessment to ensure
safe and efficacious deployment of the firefighters, are included.
(2) Persons on board aircraft used in search and rescue operations
who are needed to conduct the search when the aircraft is indispensable
to the search, or to conduct the rescue operation when the aircraft is
the only feasible means of reaching the victim with the necessary
speed, are included. Medical evacuation operations carrying persons
whose presence is required to perform the medical evacuation, but where
the aircraft is used only because it is an equal or better means of
transportation than other means are not included; these are considered
civil aircraft operations.
(3) Persons on board aircraft conducting law enforcement operations
for the purpose of operating searchlights or performing similar
observational functions are included. Transporting prisoners is not
included.
(4) Persons on board aircraft conducting aeronautical research who
are required to make observations and gather data, provided the work
can only be done in the aircraft, are included.
(5) Persons on board aircraft engaged in biological and geological
resource management, who perform scientific and technical tasks that
can only be done from the air, are included.
c. ``Associated with the Performance of.'' This clause connotes a
noncrewmember support person who, while not essential to performance of
the governmental function, is expected to contribute to the
effectiveness of those whose presence is required to perform the
function.
(1) One of Congress' primary purposes in enacting the new statutory
definition of ``public aircraft'' was to increase FAA regulatory
oversight of government aircraft. See Congressional Record, S14418-
S14424 (October 6, 1994). Giving the phrase ``associated with the
performance of'' an overly broad interpretation would be contrary to
that intent.
(i) Examples:
(A) A government executive who accompanies firefighters to a fire
scene solely to assess what further action the government should take
in regard to fighting the fire is ``associated with the performance
of'' the governmental function of firefighting. Persons gathering
information for dissemination through new media are not considered
within the exception.
(B) A government-owned aircraft is used to survey a natural
disaster. Individuals whose presence is required to monitor equipment
installed in the aircraft for the purpose of the survey are persons
``associated with the performance of'' the governmental function.
d. ``Governmental Function such as * * * '' The term ``such as'' in
the clause ``a governmental function such as firefighting, search and
rescue, law enforcement, aeronautical research, or biological or
geological resource management'' indicates that the listed functions
are not exhaustive, but that certain other governmental functions would
be included as well. In the context of the clause ``governmental
function such as firefighting, search and rescue, law enforcement,
aeronautical research, or biological or geological resource
management,'' the term ``such as'' implies other governmental functions
that share a common characteristic with those listed. The unifying
characteristic shared by the governmental functions listed in the
statute is that they each involve the use of the aircraft as an
integral or indispensable element of the operation. That is, the
presence of those aboard the aircraft performing the governmental
function is required on the aircraft, in the air--rather than merely at
the end of the flight.
(1) Examples:
(i) An aerial survey in a government-owned aircraft to determine
the extent of a natural disaster is a governmental function within the
scope of the statute. This operation would be a public aircraft
operation.
(ii) Firefighters are transported from a base camp to the
firefront, and before the aircraft lands, it is used for reconnoitering
to determine the most effective deployment of the firefighters. This
operation falls within the firefighting exception, and is a public
aircraft operation.
(iii) Firefighters are flown from one area of the country to a
firefighting base in another part of the country. This operation
involves transportation that does not fall within the firefighting
exception. As a result, compliance with appropriate FAA safety
regulations for civil aircraft would be required.
(2) ``Firefighting.'' This term includes the drop of fire
retardants, water, and smoke jumpers, and transportation of
firefighters from a base camp to the firefront, if the flight includes
use of the aircraft as an integral part of the firefighting operation,
as, e.g., with reconnoitering to determine the most effective
deployment of the firefighters.
(3) ``Search and Rescue.'' ``Search and rescue'' is a term of art
meaning aircraft operations that are flown to locate and rescue people
who cannot be located and rescued in a timely manner from the ground.
The term includes operations where the aircraft is indispensable to the
search, or is the only feasible means of reaching the victim. Victims
would be considered to be ``associated with'' the search and rescue
operation.
(i) The FAA interprets this term narrowly. The term ``search and
rescue'' does not include routine medical evacuation of persons from
traffic accidents and the like. However, if no commercial operators are
available, medical evacuation operations by a government operator will
be considered public aircraft. The FAA does not believe that Congress
intended for injured people to be carried in aircraft that are not
subject to FAA regulation when other, equally effective means are
readily available. Nor does the FAA believe that Congress intended to
put state and local governments in competition with commercial
operations, which generally provide ample civil aircraft capacity for
medical evacuation operations.
(ii) Examples:
(A) A car crashes in a remote location, and the driver will die if
she is not immediately transported to a hospital. No commercial
operators are available to fly the injured driver to the hospital in an
expeditious manner, but the sheriff's helicopter is. The sheriff's
flight carrying the injured driver to the hospital is a public aircraft
operation.
(B) Same situation, but this time commercial operators are
available. The medical evacuation operation by the sheriff is a civil
aircraft operation.
(4) ``Law Enforcement.'' Law enforcement operations that employ
aircraft with searchlights and law enforcement personnel ready for
immediate on-the-spot deployment (e.g., spotters looking for fugitives
on the ground) are public aircraft operations. Transportation of
prisoners; however, does not fall within the category of ``law
enforcement'' and is not a public aircraft operation.
(5) ``Aeronautical Research.'' Aeronautical research (e.g.,
conducting flights to determine aircraft performance in various
operating environments), even when it requires the presence on board
the research aircraft of engineers and technicians who are not part of
the crew, is a public aircraft operation.
(6) ``Biological and Geological Resource Management.'' This term
[[Page 5241]] means biological and geological resource management that
requires the presence of scientific and technical passengers to gather
information that can only be gathered by direct observation from the
air.
e. ``Cost Reimbursement Agreement.'' This term means any agreement,
either oral or written, providing for reimbursement of the costs of the
aircraft operation. If there is any charge or payment in excess of the
cost of the operation, then the agreement does not constitute a cost
reimbursement agreement.
f. ``Unit of Government.'' This term means a government. The
singular characteristic of a unit of government in this context is its
common treasury. This interpretation generally allows reimbursement
among or between agencies of a state, among or between a city, and
among or between agencies of the Federal government without the need
for compliance with FAR Parts 121, 125, 133, 135, or 137. However,
should a city, state, or Federal agency receive reimbursement from
another government, it would need to ensure that it is in compliance
with the appropriate portions of the FAR, unless the other government
is able to certify that there is a significant and imminent threat to
life or property and that no private operator is reasonably available,
as discussed below.
g. ``Certifies.'' Cost reimbursement between governments does not
negate public aircraft status when the government on whose behalf the
operation was conducted certifies that there was a significant and
imminent threat and that no private operator was reasonably available
to meet the threat. The certification by a unit of government should
include the following: a description of the significant and imminent
threat; a description of the operation undertaken; the date on which
the operation occurred; and an explanation of how it was determined
that no service by a private operator was reasonably available.
(1) Units of government should retain the required certification,
which should be completed contemporaneously, as part of their records
in case any question should arise.
(2) A general or ``blanket'' statement that an operator will always
comply with statutory requirements will not be considered acceptable.
The certification must occur for each occasion of operation.
Note: Congress' intent in amending the public aircraft
definition was, in part, to insure that units of government are not
impeded in attempting to respond to certain emergency situations. In
the words of Senator Gorton, Congress intended that ``when an
emergency breaks out, all aircraft--public and private--will be
available to respond without delay.'' See paragraph 1(b) above.
Consistent with this intent, the FAA does not intend to generally to
look behind a unit of government's certification that there was a
significant and imminent threat and that no private operator was
reasonably available to meet the threat. Thus, it is not expected
that FAA inspectors will routinely review or challenge these
determinations made by units of government.
h. ``Significant and Imminent Threat. * * *'' ``Significant and
imminent threat to life or property (including natural resources)''
means a situation in which the authority responsible for responding to
the threat has determined that serious injury, death, or significant
damage to property may occur before land- or water-borne assistance can
be deployed to counter the threat effectively.
i. ``No Service by a Private Operator * * * Reasonably Available.''
No service by a private operator was reasonably available to meet the
threat'' means that, as reasonably determined by the authority charged
with responding to the threat, no private operator is able, at the time
of the threat, to deliver aircraft capable of performing the minimum
tasks necessary to respond to the threat by the latest time at which
such aircraft would provide an effective response.
Chapter 2. Bringing Operations Into Compliance
3. Basic Types of Civil Aircraft Operations
The government operator should contact the nearest FAA Flight
Standards district office (FSDO) for assistance and guidance in
bringing its operations into compliance with the FAR. For operations
requiring certification, the FSDO manager will assign an FAA aviation
safety inspector to assist the government operator during the
certification process. Initial inquiries about certification or
requests for applications should be in writing or by personal visit to
the FSDO.
a. FAR Part 91. (1) FAR Part 91 prescribes the general flight rules
for all aircraft operations within the United States, including the
waters within 3 nautical miles of the U.S. coast. U.S.-registered civil
aircraft are required to comply with FAR Part 91. When over the high
seas, they must comply with Annex 2 (Rules of the Air) to the
Convention on International Civil Aviation.
(2) FAR Part 91 prohibits a pilot from operating a civil aircraft
unless it is in an airworthy condition. The pilot in command (PIC) is
responsible for determining whether the aircraft is in condition for
safe flight. The PIC is required to terminate the flight when
unairworthy mechanical, electrical, or structural conditions occur. In
addition, the PIC may not operate the aircraft without complying with
the operating limitations specified in the approved Airplane or
Rotorcraft Flight Manual, markings, and placards, or as otherwise
prescribed by the certificating authority of the country of registry.
(3) Under FAR Part 91, the PIC of an aircraft is directly
responsible for, and is the final authority as to the operation of that
aircraft. In case of an inflight emergency, the PIC is authorized to
deviate from any rule in FAR Part 91 to the extent necessary to meet
the emergency. However, any PIC who deviates from a rule in FAR Part 91
is required, upon the request of the Administrator, to send a written
report of that deviation to the Administrator.
b. FAR Part 125. If an operator uses an airplane with a seating
configuration for 20 or more passenger seats or a maximum payload
capacity of 6,000 pounds or more, and is not engaged in ``common
carriage,'' then FAR Part 125 applies. A person is considered to be
engaged in ``common carriage'' when ``holding out'' to the general
public or to a segment of the public as willing to furnish
transportation within the limits of its facilities to any person who
wants it. Examples of holding out are as follows: advertising through
telephone yellow pages, billboards, television, radio, and individual
ticketing. FAR Section 125.11(b) prohibits FAR Part 125 certificate
holders from conducting any operation which results directly or
indirectly from holding out to the general public. Further information
regarding common carriage vs. private carriage can be found in AC 120-
12. If the operator is engaged in ``common carriage,'' then FAR Part
121 or 135 applies rather than FAR Part 125.
c. FAR Part 121 or 135. When a government-owned aircraft is
operated ``for commercial purposes'' (see paragraph 2(a) above), the
requirements contained in either FAR Part 121 or 135, depending on the
type of operation, must be met. Generally, FAR Part 121 applies to
domestic, flag, and supplemental air carriers and commercial operators
of large aircraft, while e aircraft, while FAR Part 135 applies to air
taxi operators and commercial operators. An operator should consult
Special Federal Aviation Regulation (SFAR) No. 38-2 as well as the
applicability provisions of each part (FAR Sections 121.1 and 135.1) to
[[Page 5242]] determine whether it is FAR Part 121 or 135 that applies
to a particularDO will provide an applicant for a FAR Part 121 or 135
certificate with a videotape on certification and a copy of AC 120-49,
Certification of Air Carriers. Once the videotape and the AC have been
reviewed, the applicant will complete FAA Form 8400-6, Preapplication
Statement of Intent, and the FSDO manager will assign a Certification
Team to assist the applicant through each phase of the certification
process.
d. FAR Part 133. FAR Part 133, Rotorcraft External-Load Operations,
prescribes the airworthiness certification requirements for rotorcraft,
and the operating and certification rules governing the operation of
rotorcraft conducting external-load operations in the United States by
any person. The certification rules do not apply to a Federal, state,
or local government conducting operations with a government-owned
aircraft unless it is operating as a civil aircraft due to receipt of
compensation. Federal, state, or local governments must; however,
comply with all of the other rules contained in FAR Part 133, even when
operating a public aircraft.
(1) FAR Part 133 requires that a person must obtain a Rotorcraft
External-Load Operator Certificate issued by the FAA before any
rotorcraft external-load operations in the United States are begun.
This certificate is valid for 24 calendar months unless it is
surrendered, suspended, or revoked prior to the expiration date shown
on the certificate.
(2) Rotorcraft used in external-load operations must have been type
certificated and must continue to meet the requirements of FAR Part 27
or 29 or of FAR Section 21.25. Rotorcraft must also comply with the
airworthiness requirements contained in Subpart D of FAR Part 133 and
must have a valid standard or restricted category airworthiness
certificate. At the present time, only rotorcraft of U.S. registry are
eligible for external-load operations.
(3) Pilots conducting rotorcraft external-load operations must have
at least a current commercial pilot certificate with a rating
appropriate to the rotorcraft being used, and a Second Class Medical
Certificate.
e. FAR Part 137. FAR Part 137, Agricultural Aircraft Operations,
prescribes the rules which govern the certification and operation of
agricultural aircraft operated in the United States, and the issuance
of either a private or commercial agricultural aircraft operator
certificate for those operations. In a public emergency, a person who
conducts agricultural aircraft operations may, where necessary, deviate
from any operating rule contained in FAR Part 137 for relief and
welfare activities approved by an agency of the United States or of a
state or local government. However, each person who deviates from a
rule shall complete a report of the aircraft operation involved within
10 days, including a description of the operation and the reasons for
it, to the nearest FAA FSDO.
(1) As defined in FAR Part 137, an agricultural aircraft operation
means the operation of an aircraft for the purpose of:
(i) dispensing any economic poison;
(ii) dispensing any other substance intended for plant nourishment,
soil treatment, propagation of plant life, or pest control; or
(iii) engaging in dispensing activities directly affecting
agriculture, horticulture, or forest preservation. It does not include
the dispensing of live insects. Forest firefighting is considered to be
an agricultural aircraft operation.
(2) FAR Part 137 requires that a person must obtain an Agricultural
Aircraft Operator Certificate issued by the FAA before any agricultural
aircraft operations in the United States are begun. A rotorcraft may
conduct agricultural aircraft operations with external dispensing
equipment in place without a rotorcraft external-load operator
certificate. However, an operator with a rotorcraft external-load
operator certificate may conduct agricultural aircraft operations if it
disperses only water on forest fires by rotorcraft external-load means
without an agricultural aircraft operator certificate. A Federal,
state, or local government conducting agricultural aircraft operations
is not required to obtain an Agricultural Aircraft Operator
Certificate. They must; however, comply with all of the other rules
contained in FAR Part 137.
(3) Aircraft used in agricultural aircraft operations must be
certificated and airworthy, and equipped for agricultural operation.
They must be equipped with a suitable and properly installed shoulder
harness for use by each pilot.
(4) Operators conducting agricultural aircraft operations must have
the services of one person who has at least a current U.S. commercial
pilot certificate and who is properly rated for the aircraft to be
used.
4. Pilot Certification
a. Generally. All civil aircraft are required to be operated by
pilots certificated under FAR Part 61, Certification: Pilots and Flight
Instructors. FAR Part 61 prescribes the requirements for issuing pilot
certificates and ratings, the conditions under which those certificates
and ratings are necessary, and the privileges and limitations of those
certificates and ratings.
b. Domestic Aircraft. Pilots operating civil aircraft of U.S.
registry are required to have in their personal possession a current
pilot certificate issued to them under FAR Part 61. U.S.-registered
aircraft may be operated in a foreign country with a pilot license
issued by the that country.
c. Foreign Aircraft. Foreign aircraft may be operated in the U.S.
by pilots who have in their personal possession current pilot
certificates issued under FAR Part 61 or a pilot license issued to them
or validated for them by the country in which the aircraft is
registered.
d. Medical Certificate. Pilots operating U.S.-registered civil
aircraft are required to have in their personal possession an
appropriate current medical certificate issued to them under FAR Part
67, Medical Standards and Certification. FAR Part 67 prescribes the
medical standards for issuing medical certificates. A Third Class
Medical Certificate is required for Private Pilot certification. A
Second Class Medical Certificate is required for Commercial Pilot
certification. A First Class Medical Certificate is required for
Airline Transport Pilot certification.
e. Instrument Rating. Pilots operating civil aircraft under
instrument flight rules or in weather conditions less than the minimums
prescribed for Visual Flight Rules are required to hold an Instrument
Rating or an Airline Transport Pilot Certificate appropriate for the
aircraft flown.
5. Aircraft Certification
a. Generally. Government aircraft operations that are no longer
eligible for public aircraft status must now meet the civil
airworthiness standards for certification of aircraft. This includes
the aircraft's engines and propellers as well as the aircraft as a
whole. A civil aircraft must have a current airworthiness certificate
to operate in the National Airspace System. Additionally, all civil
aircraft must meet the following requirements:
(1) The aircraft must have an effective U.S. registration
certificate on board during all operations as required by FAR Section
91.203.
(2) An appropriate and current airworthiness certificate must be
displayed in accordance with FAR Section 91.203(c). An airworthiness
certificate is effective as long as the [[Page 5243]] maintenance,
preventive maintenance, and alterations are performed in accordance
with FAR Parts 21, 43, and 91, as appropriate, and the aircraft is
registered in the United States.
(3) The aircraft must have been inspected in accordance with FAR
Section 91.409 within the preceding 12 calendar months.
(i) If the government agency plans to use a progressive inspection
program, it must submit a written request to the FAA. The request must
be sent to the FSDO having jurisdiction over the area in which the
applicant is located and the applicant must be able to meet the
requirements identified in FAR Section 91.409(d).
(ii) Large airplanes, turbojet multiengine airplanes,
turbopropeller-powered multiengine airplanes, and turbine-powered
rotorcraft must have a program approved that meets the requirements of
FAR Section 91.409(e).
(4) All maintenance and required inspections must have been
completed by a person authorized under FAR Sections 43.3 and 43.7.
Additionally, the maintenance and inspections performed must be
recorded in accordance with FAR Sections 43.9 and 43.11. FAR Part 43
prescribes the rules governing the maintenance, preventive maintenance,
rebuilding, and alteration of civil U.S.-registered aircraft.
(5) Any alterations to the aircraft must have been accomplished and
returned to service by an appropriately certified and authorized person
under FAR Part 43.
(6) Aircraft operations for compensation or hire must be performed
in accordance with the appropriate Air Operations Certificate, e.g.,
FAR Parts 125, 135, etc.
b. Type Certification. Prior to airworthiness certification, the
type design must be certificated by the FAA. Section 603(c) of the
Federal Aviation Act of 1958 makes a type certificate a prerequisite
for issuance of airworthiness certificates. Each government operator
who wishes to determine the eligibility of its aircraft for civil
operations must contact the responsible geographic Aircraft
Certification Office (ACO) for assistance in seeking either:
(1) design approval for aircraft that have been type certificated
in the past; or
(2) type certification approval of aircraft that have been operated
in the past under public aircraft status without a type certificate.
c. Aircraft Previously Type Certificated. If the aircraft was
originally built to an FAA type certificate, the Aircraft Certification
Office will review the type certificate data and make a comparison with
the aircraft's current design and condition.
(1) the applicant should provide the FAA Aircraft Certification
Office with the technical information to assist in the following:
(i) a review of type design for any engineering changes or
modifications;
(ii) a review of replacement parts and technical data on the
replacement parts;
(iii) a review of applicable Airworthiness Directives (AD);
(iv) a review of previous operating regimes;
(v) if needed, application of later regulatory amendments or
special conditions for any changes found necessary to establish current
airworthiness standards for safe design.
(2) The applicant must provide accurate records of any changes from
the approved type design that are necessary to establish the current
design. The applicant should update all maintenance manuals as
necessary. If there has been a substantial change in the type design,
e.g., in the configuration, power, power limitations, speed
limitations, or weight that have proven so extensive that a
substantially complete investigation of compliance with the applicable
regulations is required, the owner will be required to apply for a new
type certificate.
d. Aircraft with No Prior Certification. It will be extremely
difficult to obtain type certification of aircraft that have no history
of civil certification. However, if a government operator wishes to
apply for type certification, it should file an application for a type
certificate on FAA Form 8110.12. The applicant must submit the
application and all type design data for the aircraft, including the
aircraft's engines and propellers, to the Aircraft Certification Office
in its geographic area for approval. The application form must be
accompanied by a three-view drawing and available basic data so that a
preliminary regulatory certification basis may be established. The
applicable airworthiness certification regulations, i.e., FAR Part 23,
25, 27, 29, 33, 35, etc., will be those that are in effect on the date
of application for the certificate, unless otherwise noted in the
regulations. The applicant must submit the type design, test reports,
and computations necessary to show that the product to be certificated
meets the applicable airworthiness, aircraft noise, fuel venting, and
exhaust emission requirements of the FAR. Upon examining the data and
test reports, participating in testing, and inspecting the prototype
aircraft, the Administrator must be able to find that the type design
in fact complies with the above-mentioned regulations.
e. Airworthiness Certification. An operator of an aircraft that has
been operated in public aircraft status cannot obtain a standard
airworthiness certificate or return the aircraft to civil operations
without showing that the aircraft meets all the criteria for that
airworthiness certificate as prescribed by the regulations. Making that
showing may be difficult when the aircraft has not been maintained,
altered, or inspected in accordance with the FAR. In order to receive a
standard airworthiness certificate, the operator should show that the
aircraft has been maintained according to the manufacturer's
instructions, and that any modifications to the aircraft either were
removed or approved by the FAA. Before a standard airworthiness
certificate can be issued, the applicant must show that:
(1) The aircraft conforms to its approved type design and is in
condition for safe operation.
(2) Any alterations were accomplished in accordance with an
approved supplemental type certificate (STC) or other FAA approved
data, such as a field approval as reflected by the issuance of an FAA
Form 337, Major Repair of Alteration.
(3) All applicable AD's have been complied with.
(4) If altered while in another category, the aircraft continues to
meet, or has been returned to, its approved type design configuration
and is in a condition for safe operation.
f. Procedures for Obtaining Certificate. Applicants interested in
obtaining an airworthiness certificate must follow the following
procedures.
(1) Applicants are required to submit a properly executed
Application for Airworthiness, FAA Form 8130-6, and any other documents
called for in FAR Parts 21 and 45 for certification. An applicant may
obtain an FAA Form 8130-6, ``Application for Airworthiness'' from the
local Manufacturing Inspection district office (MIDO) or FSDO. The
applicant must have completed and signed the appropriate sections prior
to submitting it to the FAA.
(2) The applicant is required to make available for inspection and
review the aircraft, aircraft records, and any other data necessary to
establish conformity to its type design.
(3) The applicant must properly register the aircraft in accordance
with FAR Part 47, Aircraft Registration.
(4) The applicant is also required to show that the aircraft
complies with the noise standards of FAR Sections
[[Page 5244]] 21.93(b), 21.183(e), Part 36, or Part 91, as appropriate.
This may be demonstrated through the use of data. Also, the applicant
is required to show that the aircraft's fuel venting and exhaust
emission systems comply with the requirements of FAR Part 34. In
addition, the applicant must show the aircraft meets the applicable
passenger emergency exit requirements of FAR Section 21.183(f) and SFAR
No. 41.
(5) During the course of the certification process, the FAA will
review records and documentation to the extent necessary to establish
that:
(i) All of the required records and documentation are provided for
the aircraft, i.e., an up-to-date approved flight manual, a current
weight and balance report, equipment list, maintenance records, FAA-
accepted Instructions for Continued Airworthiness (ICAW) and/or FAA-
acceptance maintenance manual(s) (MM), and any other manuals required
by FAR Sections 21.31, 21.50, 23.1529, 25.1529, 27.1529, 29.1529, 33.4,
and 35.4. These documents must be in the English language.
(ii) The applicant should ensure that the appropriate markings are
present in accordance with FAR Part 45. The applicant should make
available the Type Certificate Data Sheets (TCDS), aircraft
specification, or aircraft listing that is applicable.
(iii) The inspection records and technical data should reflect that
the aircraft conforms to the type design, and all required inspections,
including those provided for in FAR Section 21.183(d)(2), which
provides for a 100-hour inspection, as described in FAR Section 43.15
and Appendix D. The applicant must also show that the tests the
aircraft has been subjected to have been satisfactorily completed, the
records completed, and reflect no unapproved design changes.
(iv) The aircraft has been flight tested, if required. If it has
not been flight tested, the FAA may issue a special airworthiness
certificate as provided for in FAR Sections 21.35 and 21.191(b). The
flight test must be recorded in the aircraft records in accordance with
FAR Section 91.417(a)(2)(i) as time in service as defined in FAR Part
1. Aircraft assembled by a person other than the manufacturer (e.g., a
dealer or distributor) must have been assembled and, when applicable,
flight tested in accordance with the manufacturer's FAA-approved
procedures.
(v) Large airplanes, turbojet, or turbopropeller multi-engined
airplanes must comply with the inspection program requirements of
Subpart C of FAR Part 91 or other FAR referenced therein. A
supplemental structural inspection program is also required for certain
large transport category airplanes. Reference AC 91-56, Supplemental
Structural Inspection Program for Large Transport Category Airplanes.
(6) Inspection of the aircraft. Aircraft submitted by the applicant
for inspection will be inspected for the following:
(i) The nationality and registration marks and identification plate
should be displayed and marked in accordance with FAR Part 45. The
information presented should agree with the application for
airworthiness certification.
(ii) All equipment, both required and optional, should be properly
installed and listed in the aircraft equipment list.
(iii) Instruments and placards should be located in the appropriate
places, installed, and properly marked in the English language.
(iv) All applicable AD's must have been complied with and
appropriately recorded.
(v) The aircraft should conform to its approved U.S. type
certificate and should be in a condition for safe operation.
(vi) All aircraft systems should have been satisfactorily checked
for proper operation. The operation of the engine(s) and propeller(s)
should be checked in accordance with the aircraft manufacturer's
instructions.
Chapter 3. Applying for an Exemption
6. Administrator's Exemption Authority
a. In General. The FAA Administrator has the authority to grant
exemptions, provided certain requirements are met, to units of
government for operations that do not have public aircraft status. The
Independent Safety Board Act Amendments of 1994, Pub. L. 103-411,
provide, in pertinent part:
(1) Authority To Grant Exemptions
(i) In General. The Administrator of the Federal Aviation
Administration may grant an exemption to any unit of Federal, State, or
local government 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 amendment made by subsection (a) of this section (the revised
``public aircraft'' definition).
Note: The above provision authorizes exemptions from the United
States Code--specifically, the Federal Aviation Act of 1958, as
amended and recodified--rather than from the regulations.
b. Statutory Requirements. The statute provides as follows:
(1) The Administrator may grant an exemption [to a unit of
government] . . . only if--
(i) the Administrator finds that granting the exemption is
necessary to prevent an undue economic burden on the unit of government
and
(ii) the Administrator certifies 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.
Independent Safety Board Act Amendments of 1994, Section (b)(2), Pub.
L. 103-411 (emphasis added).
Note: The FAA intends to grant exemptions only where it is
clearly in the public interest to do so.
c. Delegation of Authority. In the interest of administrative
efficiency, the Administrator's authority to grant exemptions to units
of government has been delegated to the Director, Flight Standards
Service, and the Director, Aircraft Certification Service. FAR Section
11.25(b)6).
7. Key Statutory Terms
a. ``The Administrator Finds . . . and . . . Certifies.'' This
language indicates that the Administrator, or his or her delegate, is
to make an independent determination as to whether the statutory
requirements for granting an exemption have been met. This is in
contrast to an earlier portion of the statute in which the unit of
government rather than the Administrator makes the required
certifications (that the operation was necessary to respond to a
significant and imminent threat, and that no private operator was
reasonably available to meet the threat).
b. ``Undue Economic Burden.'' One finding that the Administrator or
his or her delegate must make before granting an exemption is that the
exemption is necessary to prevent an undue economic burden on the unit
of government. ``Undue economic burden'' means that it would cost
substantially more to comply with FAA regulations than with ``an
aviation safety program that is effective and appropriate to ensure
safe operations of the type of aircraft operated by the unit of
government'' under the statute's exemption provision. To show
``substantial additional costs,'' a petitioner for exemption should
submit information that will allow the FAA to compare the cost of
operating in compliance with Part A of Subtitle VII of Title 49 of the
United States Code with comparable costs if an exemption
[[Page 5245]] were granted. At minimum, such information should
include:
(1) The purpose and duration of the aircraft operations for which
exemption is sought.
(2) The estimated initial and recurring costs of bringing the
petitioner's aircraft operations into compliance with civil aircraft
requirements.
(3) The estimated costs associated with conducting comparable
aircraft operations under the exemption.
(4) The estimated cost of obtaining the same aircraft operations
from a private operator.
c. ``Aviation Safety Program.'' The Administrator or the
Administrator's delegate may not grant an exemption to a unit of
government without certifying 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.'' As a result, in the petition for an exemption, the
petitioner must show to the Administrator's satisfaction that the
petitioner's aviation safety program is effective and appropriate to
ensure safe operations of the type of aircraft operated by the
petitioner.
(1) An aviation safety program submitted for approval must specify
how the aircraft will be maintained and operated safely. The program
must include:
(i) procedures covering the maintenance and inspection of the
aircraft, including the avionics equipment, emergency equipment,
aircraft interior modifications;
(ii) installation, removal, and inspection instructions for all
special equipment on or modifications of specific aircraft;
(iii) procedures for operating the aircraft, personnel training
associated with the aircraft; and
(iv) any other procedures determined to be necessary for the safe
operation of the aircraft.
(2) Example: A unit of government applies for an exemption on an
aircraft whose wings were modified to carry external pods for various
surveillance activities. In its proposed aviation safety program, the
unit of government would need to identify how the continued
airworthiness of the modification will be accomplished. At minimum, the
following may be required: a special structural inspection at the wing
attach points, additional training for pilots operating the aircraft
during pod installations, and flight manual changes to reflect any new
operating limitations that may be necessary due to the modifications.
d. Aircraft Ineligible for Airworthiness Certificates. It will be
extremely difficult for units of government to show that aircraft
ineligible for airworthiness certificates--e.g., military surplus
aircraft--have ``an aviation safety program that is effective and
appropriate to ensure safe operations of the type of aircraft operated
by the unit of government.'' In order to meet the ``aviation safety
program'' requirement, the public must be assured that the safety of
the aircraft in question is at least roughly equivalent to that
provided by the FAR. Aircraft that have no history of civil
certification often present significant ``unknowns'' when it comes to
such critical safety matters as life-limited parts and aircraft design.
Thus, such aircraft do not usually have the needed base on which to
build an aviation safety program that is effective and appropriate to
ensure safe operations.
(1) The FAA does not now expect to grant exemptions for aircraft
that are ineligible for airworthiness certificates. Units of government
may apply for an exemption, but they should be aware of the limited
likelihood of obtaining and exemption for such aircraft, particularly
when deciding whether to expend their resources in seeking an
exemption. While the FAA will not rule out completely the possibility
of granting exemptions for such aircraft, the burden on the petitioner
of showing that safety will not be jeopardized will be very heavy
indeed.
(2) A successful petitioner for an exemption would need to show
that its aviation safety program is at least roughly equivalent in
terms of level of safety what is required by the operations,
maintenance, and inspection requirements of the FAR.
(3)A unit of government developing a proposal for an aviation
safety program may find the information below helpful:
(i) Generally. Subpart E of FAR Part 91 prescribes the rules
governing the maintenance, preventative maintenance, and alterations of
U.S.-registered aircraft civil aircraft operating within and outside
the United States. FAR Section 91.403 states that the owner or operator
of an aircraft is primarily responsible for maintaining that aircraft
in an airworthy condition, including compliance with FAR Part 39. FAR
Part 39 describes the requirements for compliance to AD's issued by the
FAA.
(ii) Inspection Programs. Operators of large aircraft, turbojet
multiengine airplanes, or turbopropeller powered multiengine airplanes,
should select and use one of the four inspection program options
outlined in FAR Sections 91.409(e) and (f).
(A) For one of the four inspection program options, that identified
in FAR Section 91.409(f)(4), the inspection program submitted should be
compared with the manufacturer's recommended program. Where there is no
manufacturer's program, a time-tested program should be utilized. The
program developed must provide a level of safety equivalent to or
greater than that provided by the other inspection options identified
in FAR Section 91.409(f).
(B) For the other three inspection options outlined in FAR Sections
91.409(e) and (f), the basis for the development of the inspection
program or the instructions for continued airworthiness, including the
detail of the parts and areas of the airplane to be inspected, is the
manufacturer's recommendations. In the case of surplus military
aircraft, the manufacturers provide this basic information to the
specific military service that has contracted for the airplane. The
military service then develops a reliability-centered maintenance
program to meet its needs and environment which are often comparable to
the continuous airworthiness maintenance programs developed by air
carriers.
(C) In many cases, manufacturers may be unwilling or unable to
provide instructions for continued airworthiness for operation of the
airplane in other than a military environment. Therefore, in keeping
with existing policy as provided by the FAA, the only reasonable basis
that for detailing the inspection criteria for the aircraft to be
inspected, as required by FAR Section 91.409(g)(1), is the scope and
detail developed by the applicable military service.
(D) In addition to the ``field'' level inspection requirements set
forth in the military maintenance program, the ``depot'' level
inspection requirements should also be included in any inspection
program approved under FAR Section 91.409(f)(4). The military ``field''
level maintenance is roughly equivalent to the civil terminology that
air carriers use to describe ``A, B or C'' checks. The military
``depot'' level maintenance is comparable to the ``heavy C or D''
checks used by air carriers. Some air carriers may use a numerical
description verses the alphabetical identifier for inspection checks.
(E) The inspection frequency and program structure established by
the military may not be appropriate for use in a civilian environment.
Therefore, inspection frequency and program structure may require
adjustment to meet the government operator's [[Page 5246]] requirement.
However, facts and sound judgment must form the basis for any
inspection frequency adjustment beyond that which has been established
for use by the military.
(F) An alternate means of compliance for individual specific
inspection requirements, in lieu of that which is called for in the
military ``field'' or ``depot'' level programs, may be approved
following evaluation of the applicant's inspection process
instructions.
(G) Revisions to an existing approved inspection program should be
requested in accordance with FAR Section 91.415.
(iii) Persons Conducting Inspections and Maintenance. The program
proposed by the petitioner should include procedures to insure that
inspections and maintenance tasks are performed by persons authorized
by FAR Sections 43.5 and 43.7.
(iv) Modifications and Repairs. The program must identify all major
modifications and repairs accomplished since the aircraft was put into
service. Additionally, all further modifications and major repairs will
need to be approved in the same format as required for civil aircraft
under the regulations.
8. Petition for Exemption
a. Procedure. FAR Section 11.25--contains the procedures to be
followed by a unit of government seeking an exemption. The petition for
exemption should be submitted in duplicate to the Rules Docket (AGC-
10), Federal Aviation Administration, 800 Independence Avenue,
Washington, DC 20591. Under FAR Part 11, petitions for exemption are
published in the Federal Register for notice and comment period.
b. Contents. The petition for exemption must set forth the text or
substance of the statute from which the exemption is sought. (As noted
above, Congress authorized exemptions from the statute--the Federal
Aviation Act of 1958, as amended and recodified--rather than from the
regulations.) The petition for exemption must contain any information,
views, analysis, or arguments available to the petitioner to show that
the statutory requirements for granting an exemption have been met--
i.e.:
(1) that the exemption is necessary to prevent an undue economic
burden on the unit of government; and
(2) 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. FAR Section 11.25.
Individuals drafting a petition for exemption on behalf of a unit of
government should familiarize themselves with FAR Part 11.
[FR Doc. 95-1919 Filed 1-20-95; 4:26 pm]
BILLING CODE 4910-13-M