https://www.gsa.

gov/policy-regulations/policy/aviation-management-policy/aviation-regulations-and-
guidance-overview/public-aircraft-operations

https://www.gsa.gov/cdnstatic/FAA_Advisory_Circular_00-1.1A_%2802-12-14%29.pdf

Twelve Five CFR

https://www.ecfr.gov/current/title-49/subtitle-B/chapter-XII/subchapter-C/part-1544/subpart-
B/section-1544.101

US Armed Forces PAO Decision tool.

https://www.dau.edu/tools/t/US-Armed-Forces-PAO-Decision-Tool

40125. Qualifications for public aircraft status

(a)Definitions.—In this section, the following definitions apply:

(1)Commercial purposes.—The term “commercial purposes” means the transportation of persons or

property for compensation or hire, but does not include the operation of an aircraft by the armed forces
for reimbursement when that reimbursement is required by any Federal statute, regulation, or directive,
in effect on November 1, 1999, or by one government on behalf of another government under a cost
reimbursement agreement if the government on whose behalf the operation is conducted certifies to
the Administrator of the Federal Aviation Administration that the operation is necessary to respond to a
significant and imminent threat to life or property (including natural resources) and that no service by a
private operator is reasonably available to meet the threat.

(2)Governmental function.—The term “governmental function” means an activity undertaken by a

government, such as national defense, intelligence missions, firefighting, search and rescue, law
enforcement (including transport of prisoners, detainees, and illegal aliens), aeronautical research, or
biological or geological resource management.

(3)Qualified non-crewmember.—The term “qualified non-crewmember” means an individual, other than

a member of the crew, aboard an aircraft—

(A) operated by the armed forces or an intelligence agency of the United States Government; or

(B) whose presence is required to perform, or is associated with the performance of, a governmental
function.

(4)Armed forces.—The term “armed forces” has the meaning given such term by section 101 of title 10.
(b)Aircraft Owned by Governments.—An aircraft described in subparagraph (A), (B), (C), (D), or (F) of
section 40102(a)(41) does not qualify as a public aircraft under such section when the aircraft is used for
commercial purposes or to carry an individual other than a crewmember or a qualified non-
crewmember.

(c)Aircraft Owned or Operated by the Armed Forces.—

(1)In general.—Subject to paragraph (2), an aircraft described in section 40102(a)(41)(E) qualifies as a

public aircraft if—

(A) the aircraft is operated in accordance with title 10;

(B) the aircraft is operated in the performance of a governmental function under title 14, 31, 32, or 50
and the aircraft is not used for commercial purposes; or

(C) the aircraft is chartered to provide transportation or other commercial air service to the armed
forces and the Secretary of Defense (or the Secretary of the department in which the Coast Guard is
operating) designates the operation of the aircraft as being required in the national interest.

(2)Limitation.—An aircraft that meets the criteria set forth in paragraph (1) and that is owned or
operated by the National Guard of a State, the District of Columbia, or any territory or possession of the
United States, qualifies as a public aircraft only to the extent that it is operated under the direct control
of the Department of Defense.

Public aircraft: FAR 1

“Public Aircraft means aircraft used only in the service of a government or political subdivision.
It does not include any government owned aircraft engaged in carrying persons or property for
commercial purposes.”

As we can see by the definition, we are talking about the FAA and the government fleet itself,
the Forest Service, various sheriffs’, police department and fire department flight operations in
surveillance, medivac, and rescue operations, and DEA and FBI among others. But what we are
addressing is the performance of these functions by contract civil operators being hired to do the
work of the public aircraft.

Until the passage of the 1994 Act noted above, public aircraft were exempted from compliance
with Federal Air Regulations, and technically, their operators did not even need a pilot’s license.
In addition, airworthiness and maintenance certification was not required. Although most of the
public agencies followed all the rules, there was no specific requirement to do so. This all
changed in 1994 and private contracted aircraft and the government-owned public aircraft were
both to be maintained at the same regulatory level. As a practical matter, the private operators
and the government people had the same maintenance requirements. Their maintenance costs
now had to be about the same, since they both must adhere to all the FARs. Any question about
who will spend more?
The present problems

Title 49 US Code section 40102(a)(41) provides the definition of public aircraft, as above. 49 US
Code section 40125 provides the qualifications for public aircraft status. The FAA now
recognizes that these definitions are difficult to apply to aircraft operations conducted by civil
contractors for government entities and therefore has proposed to make certain changes in its
policy regarding contractors.

Where the distinctions get sticky is in the case of accidents and once the lawyers get involved in
accidents they do get sticky. So the FAA has set out some new guidelines to be followed all in
the hope of clearing up some areas of confusion. It’s all about money.

The following simple steps have been proposed by the FAA:

1. Public aircraft status is not an automatic status granted by the existence of a contract between
a civil operator and a government agency;

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

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

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

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

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

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

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

Civil operators should also refuse to accept a contract to perform operations that violate 14 CFR
regs if they cannot be sure that the government entity offering the contract has declared it to be a
public aircraft operation and that such flight meets the eligibility requirements as outlined in the
statute.
It does not take a lawyer to figure out that this whole attempt at regulating the status of aircraft
used in public activities is all about money and who is liable for any accidents that occur or
incidents regarding FAR violations or both. In other words, who pays? The only thing that I find
surprising about the whole thing is that it has taken so long to get these arrangements down on
paper! What about provisions for emergency operations where time may not permit the paper
chase? Will there be situations where common sense may supercede a paper requirement? Will
the issue of separation and separate tally of contract accidents vs. government flight accidents be
involved?

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

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

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

8210.1C Guidance PAO

7.14. Government Oversight for Non-Standard Contracts Involving PAO.

7.14.1. GFRs may find themselves involved in oversight of contracts involving aircraft
that the Government does not own and in cases where the applicability of the GFRC
may be non-existent or limited. Regardless of the applicability of the GFRC, non-
standard contracts such as lease agreements and (more commonly) contractor-owned
(COCO/COGO) Public Aircraft Operations may still expose the government to risk.
Even among these broad categories, there will be differences in the level of oversight
required based on the aircraft and operations. Chapter 3 gives the GFR the authority to
determine if certain sections of the Instruction are not applicable and therefore do not
require specific Procedures. These operations may involve very limited requirements
for GOPs and FOPs, and GFR/APT oversight may be limited. Since the Government
most likely will have limited or no financial liability for a contractor-owned aircraft, the
GFR is authorized to accept Procedures that do not address many of the requirements
in chapters 4, 5, and 6. The determination of what is required, and what is not, is
largely left to the judgment of the GFR, but the discussions in this chapter and the
guidance of Attachment 16 provide valuable guidance to be followed.

7.14.2. A one size fits all approach for PAO contract requirements is not practical
since the risks differ from contract to contract greatly depending on the aircraft mission
to be performed. For example, the risks associated with an aircraft holding a Standard
airworthiness certificate as compared to a non-Type Certificated (Experimental
airworthiness certificate) aircraft change significantly. Likewise, the operational risks
associated with contracting for opposing force (OPFOR) missions flying a supersonic
profile differ significantly from a contracted propeller aircraft acting as a low, slow flyer
and being vectored around by a surface ship. Attachment 16 provides guidance on a
tailored approach that a GFR working with the Service airworthiness authority and his
Contracting Officer could leverage this instruction and establish adequate and
reasonable risk mitigation and oversight. The goal would be to ensure due diligence
without imposing overly burdensome and costly oversight requirements. Lastly, most
contractors providing air services to the government in contractor-owned aircraft will not
be familiar with this instruction. It is therefore recommended that to the maximum extent possible, the
GFR and contractor leverage FAA process in meeting government requirements.

Public Aircraft Operations (PAO). In general, the U.S. Armed Forces considers an
aircraft operation "Public" when the aircraft is owned by the Armed Forces, or is used by
the Armed Forces and operates outside of the purview of its FAA airworthiness
certificate (e.g., configuration, operational use, or maintenance) and applicable
operating regulations under 14 CFR. See 49 U.S.C. § 40102 (A)(41) and 41 U.S.C. §
40125. For case by case PAO determinations, refer to US Armed Forces PAO Decision
Tool (below) and the FAA PAO Circular 00-1.1A.

A determination of PAO signifies a significant shift in responsibilities associated with the

airworthiness and continuing airworthiness of the aircraft from the FAA. For DoD owned
aircraft, the determination is usually simple, although questions can arise about the
aircraft status during the acquisition process and when discussing FMS. The really
difficult cases to navigate are associated with contracted air services. If a non-DoD
aircraft is being operated by or for DoD purposes, the operation may be considered
PAO if it is in support of an inherently military requirement and the FAA has no
regulations that govern that operation. PAO determinations are made on an operation-
by-operation basis and may be bounded by specific contract language that establishes
when a provider is operating in support of a DoD contract, and when conditions exist
that exclude the operation from “civil use”.