SECTION BY SECTION ANALYSIS

The current definition of public aircraft (49 U.S.C. 40102(a)(37)) presents interpretive difficulties to many in the aviation community. These difficulties are due in part to repetition of the "commercial purposes" restriction throughout the text and the use of an undesignated sentence at the end. However, the complexities of the current definition are due primarily to the fact that the status of an aircraft (whether it is a civil aircraft (and therefore subject to the full range of aviation safety requirements) or a public aircraft) is determined by the conditions of specific operations. Public aircraft status is not dependent so much on the aircraft itself, as it is upon the operation of the aircraft. For example, within the United States, it is possible for the same aircraft to operate as a civil aircraft for one flight in the morning of a given day, and then operate as a public aircraft in the afternoon of the same day. The distinctions in the conditions of civil or public operations are often intricate and nuanced, leading to the interpretive difficulties.

In an effort to eliminate these interpretive difficulties and simplify construction of the definition, the two primary elements of the public aircraft definition have been divided into a straight-forward definition that references a separate free-standing section of law outlining the operating conditions needed to qualify for public aircraft status. The proposed changes in the definition are designed to leave unchanged all other areas of transportation safety law, such as federal hazardous material transportation law (49 U.S.C. 5101, et seq.) and regulations issued under that authority.

The first requirement for qualification as a public aircraft is that the aircraft itself must be owned by a governmental entity, be it federal, state or local, or that it be leased for a period of time by a governmental entity from a private party. The current definition outlines several different categories of governmental ownership or leasing that would meet this first requirement. However, the divisions among these categories lead to an inconsistency: they technically permit aircraft leased to the federal government to carry passengers even if those passengers are not aboard the aircraft for any governmental purpose or function. This is inconsistent with other portions of the definition, which do not permit the carriage of passengers not associated with a governmental function aboard government-owned public aircraft. Section 1 of the proposal condenses these categories into one simplified provision that establishes that any aircraft "operated by or on behalf of" any government could qualify as a public aircraft, depending on the conditions of operation, and without regard to ownership status.

Section 1 also eliminates the current distinction between lease terms of the federal government and state and local governments. Currently, aircraft leased by the federal government may be considered public aircraft, regardless of the length of time of the lease. Aircraft leased by state and local governments, however, must be exclusively leased for a period of at least 90 continuous days before the aircraft can fall under the public aircraft definition. In the past, this has proven a costly impediment to obtaining aircraft for governmental uses of short duration, particularly in emergency situations. This section removes the 90-day minimum lease requirement for state and local governments, eliminating this distinction between the federal government and state and local governments.

Section 2 of the proposal establishes a free-standing provision in chapter 401 of title 49, United States Code, to outline the requirements of the second element of the public aircraft definition: the conditions of operation that an aircraft must meet to qualify as a public aircraft. In general, there is a three-part test to determine whether an aircraft meets these conditions of operation. First, the aircraft must not be operated for commercial purposes. Second, the aircraft may not carry persons other than crewmembers or "qualified non-crewmembers." Third, the aircraft must be used exclusively for a government. Unless all three of these test components are present, the aircraft operations are "civil" aircraft operations, and not "public" aircraft operations.

Subsection (a) defines the key terms necessary for a clear understanding of the definition of public aircraft. Subsection (b) establishes the permissible operating conditions for the majority of cases and, in the interests of equity, would impose identical conditions on all government-owned or -leased aircraft (other than the operations of the armed forces) for qualification as a public aircraft. Subsection (c) recognizes the unique conditions of operation that the armed forces may undertake.

The three basic conditions listed above would continue to apply under proposed subsection (b) as follows:

1. the aircraft is not being used for "commercial purposes";
2. the aircraft is not being used to carry a person other than a crewmember or a "qualified non-crewmember"; and
3. the aircraft is being used exclusively for the government.

If any one of these three conditions is not met, then the aircraft would be considered a civil aircraft.

Whether used for "commercial purposes": One of the basic criteria in the current definition for public aircraft status is that the aircraft is not being used for "commercial purposes." In view of the fact that the term is used repeatedly throughout the new section, it is defined in subsection (a). The new 40125(a)(2) states:

The proposed definition would broaden the cases of permissible cost reimbursement. Primarily, it permits cost reimbursement agreements or arrangements where only one party to the agreement is a government. This is a change from the current law, which recognizes only cost reimbursement agreements between two governments. For example, under this proposal, a government may form a cost reimbursement arrangement with another government, a quasi-governmental entity, an educational institution, or a private company, provided that it meets the other conditions of the subsection. For example, the National Aeronautics and Space Administration (NASA) regularly enters into agreements with such entities pursuant to the National Aeronautics and Space Act of 1958, as amended, 42 U.S.C. 2451 et seq., to conduct research and development activities in return for reimbursement of costs from such entities. This change is intended to capture those cases that had technically not been permitted by the current definition but were necessary because they were required either by federal law or the public interest. This is not intended, however, to broaden the scope of cases to permit commercial activities by any governmental entity. Therefore, there are specific limitations upon what types of cost reimbursement are permissible.

Section 40125(a)(2) limits the types of permissible cost reimbursement to essentially three categories. First, there are those required by federal law, as under 31 U.S.C. 1535, which requires agencies to recover the costs of operating their aircraft for use by other agencies, other governments, or non-official travelers. Second, cost reimbursement would be permissible for the performance of an inherently governmental function. The Office of Management and Budget (OMB) Circular No. A-76, as currently in effect, provides guidance on interpretation of what constitutes an inherently governmental function. Specifically, the proposal uses language from Circular No. A-76 to define the term "inherently governmental function" as one which is so intimately related to the public interest as to mandate performance by the government and requires either the exercise of discretion in applying government authority or the use of value judgment in making decisions for the government. These would include forms of law enforcement, judicial functions, and other mandated governmental duties. For example, NASA is required by Congressional mandate to perform research and development activities using certain appropriated funds. These activities would be considered an inherently governmental function for the purposes of this proposal.

It is important to emphasize that "inherently governmental functions" are distinct from "other governmental functions." As a matter of logic, all functions that the government undertakes are governmental functions. However, it is imperative that the government itself perform only a subset of these function. The maintenance and repair of a government-owned building, for example, is a governmental function. It is, after all, the government's duty to maintain and repair the buildings that it owns. Nevertheless, it is not imperative, or even necessary, that government personnel perform this duty. It is possible to contract out for maintenance and repair services. That a private contractor performs the function does not render the function non-governmental. The distinction here is not whether the government can perform a function, nor even if it has a duty to perform a function; rather, the test is whether the function is one that only the government should perform. By making this distinction, the proposal acknowledges that it is in the interest of public policy that aircraft performing inherently governmental functions shall be accorded public aircraft status.

A governmental entity may be reimbursed for the use and operation of its aircraft for other governmental functions that do not rise to the level of an inherently governmental function only in very specific circumstances. Reimbursement would only be permitted in those situations when operations are needed to respond to an imminent threat to life, property or natural resources, and only when no service by a private operator is reasonably available to meet the threat. The purpose here is to ensure the distinction between a government operating an aircraft to perform a governmental function, and the government operating an aircraft to perform a governmental function and charging cost reimbursement for that operation. This is intended to mirror the current definition's intent in the undesignated sentence at the end.

One portion of the current cost reimbursement concept is intentionally deleted by the proposal. Currently, if two governments enter into a cost reimbursement agreement, the government on whose behalf the operation is conducted must certify in each case to the Administrator of the Federal Aviation Administration that the operation is necessary and no private operator is reasonably available to conduct it. This certification requirement has proven particularly burdensome in emergencies, and it has become apparent that the potential for abuse is low in these cases. Thus, it is proposed that the government conducting the operation may make the two needed determinations on its own to establish the status of the particular operation.

Whether carrying only crew and "qualified non-crewmembers": The second basic criterion in the current definition for public aircraft status is that the aircraft is not carrying individuals who are not associated with the performance of a governmental function. To avoid using the complicated current phrasing in the revised drafting, two simpler defined terms are substituted in the proposal. One new definition, a new 40125(a)(3), reads as follows:

This definition reflects the relevant language of paragraph (a)(37)(B)(ii)(I) of the definition, except for a few minor additions, such as the "transport of prisoners, detainees, and illegal aliens" and "employee and contractor training." The "employee and contractor training" provision is intended to capture not only training for crewmembers, but other necessary personnel, such as mechanics.

The second new definition, a new 40125(a)(4), reads as follows:

Proposed paragraph (4)(A) repeats the current language of paragraph (a)(37)(B)(ii)(II) of the current definition. Proposed paragraph (4)(B) repeats the relevant portion of paragraph (a)(37)(B)(ii)(I) of the definition, with the exception that a person's presence is required "for" rather than "to perform" the governmental function. This is to acknowledge that passive transportees, such as prisoners, are not involved in "performing" the governmental function for which the aircraft is being operated, but are still a necessary factor of the operation.

Whether the operation is "used exclusively for the government": The third criterion for determining public aircraft status is a proposed change from the current state of the law. The term "used exclusively for the government" means that for a particular operation the aircraft is used exclusively for the government; it is not intended to mean that the aircraft is only ever used exclusively for the government. This is in line with the concept that public aircraft status is dependent upon the operation of the aircraft, not its ownership status. The restriction that the operation be one that is "used exclusively for government" is one that currently technically applies only to the federal government under (a)(37)(A)(i). However, this restriction, as a practical matter, applies to other governmental entities as well. Thus, this restriction is now made explicit for all other governmental entities.

Operations for the armed forces: Section 40125(c) explicitly outlines the special category of operations for the armed forces. This proposal is intended to recognize the unique functions of the Department of Defense (DoD) and the United States Coast Guard (Coast Guard), and the unique aircraft that the armed forces use to carry out their functions.

Section 40125(a)(1) defines the term "armed forces" to include the reserve components of the armed forces, and the National Guard of a state, territory, Puerto Rico, or the District of Columbia. Armed forces reserves and the National Guard perform substantially the same training and functions as active military personnel, except on a more limited basis. In the interest of equity, the reserve components of the armed forces (which includes the federalized National Guard) and the non-federalized National Guard are given the same qualifications for public aircraft status as active armed forces.

Section 40125(c)(1) establishes that operations of the armed forces qualify as public aircraft operations if they involve an aircraft owned by an armed force or are conducted by armed forces personnel in the performance of their duties. This proposal recognizes that military aircraft are uniquely constructed for military training and combat, have accordingly unique safety and maintenance requirements that are administered by the DoD and the Coast Guard, and are operated by military "personnel" who are specially and specifically trained for these unique aircraft. As these agencies have the appropriate level of expertise to oversee their specialized aircraft operations, those operations would be designated as public aircraft operations.

Conversely, section 40125(c)(2) presumes that DoD and Coast Guard charter operations are not public aircraft operations, except upon a determination by the Secretary of Defense (or the Secretary of Transportation in the case of the Coast Guard) that public aircraft status is required in the national interest. Unlike the military aircraft covered in (c)(1), these charter operations are not unique to the military; typically, they involve commercial aircraft that must otherwise maintain commercial safety certification under the Federal Aviation Regulations (FAR). These aircraft are neither used nor equipped for military combat or training, nor are their operations such that the particular expertise of military personnel is required. Thus, this section recognizes that, in most cases, it is unnecessary and even undesirable for these aircraft to qualify as public aircraft. This section does allow, however, for those unusual situations (e.g., war or national emergency) in which the national interest may require that these charter operations qualify for public aircraft status. In these situations, the designation of the operation as a public aircraft operation shall be made in writing to the Administrator of the FAA by the Secretary of Defense or the Secretary of the Department in which the Coast Guard is operating.

Operations for "crew training, equipment development, or demonstration": Proposed subsection 40125(d) preserves a narrow category of public aircraft operation contained in current law at section 40102(a)(37)(A)(ii). These operations only occur specifically when an aircraft owned by the United States government is leased back to a private operator for the purposes of crew training, equipment development, or demonstration.

Section 3 would codify the FAA Administrator's current public aircraft exemption authority, contained in the "Independent Safety Board Act Amendments of 1994" (section 3(b) of Pub. L. No. 103-411; Oct. 25. 1994). This uncodified provision would be incorporated in title 49 along with the other exemption authority of the FAA Administrator, to make it simpler to find. Also, its terms have been modified to make the exemption authority parallel to the proposed sections 40102(a)(37) and 40125. A conforming amendment would repeal section 3(b) of Public Law 103-411 at the same time.

The exemption authority conferred upon the FAA Administrator relates to civil aircraft operations that, due to special circumstances, ought to qualify for public aircraft status.