As you may know, aircraft owned and operated by a state government entity may be considered “public aircraft” under 49 USC §40102(a)41. To be considered a public aircraft,49 USC §40125(a) and (b) require that the governmental entity’s operation of the aircraft be in furtherance of a “governmental function” such as national defense, intelligence missions, firefighting, search and rescue, law enforcement etc. and the aircraft may not used for commercial purposes or to carry an individual other than a crewmember or a qualified non-crewmember.
Why might that be important? Well, one of the primary reasons is public aircraft are not required to comply with the FARs. Thus, public aircraft operations are not required to comply with the operational limitations or maintenance requirements of the FARs nor are they subject to FAA enforcement for failure to comply with these FARs during public aircraft operations.
The FAA Office of the Chief Counsel recently issued a Legal Interpretation responding to an inquiry regarding whether a county sheriff department’s performance of an air trauma transport of a civilian victim from either a trauma scene (e.g. a motor vehicle crash) or an inter-hospital air trauma transport would fall within the operating scope of a public aircraft. The Interpretation initially observed that the issue was whether the trauma victim being transported is viewed as someone other than a qualified non-crewmember that would cause the flight to lose its public aircraft status.
The Interpretation stated that helicopter search and rescue is considered a governmental function that qualifies for public aircraft status. Since the trauma victim being transported is the reason for the operation, the patient being transported becomes a qualified non-crewmember under 49 USC §40125(a)(3)(B). Of course, this presumes that the sheriff’s department does not collect any sort of fee, which would be considered compensation and would give the flight a commercial, rather than a public aircraft, status.
With respect to transportation of a trauma victim between hospitals, the Interpretation cautioned that “inter-hospital air trauma transport, does not appear to be a category of search and rescue operation and thus would not qualify as a public aircraft operation under the statute.” Although it might be possible that such an operation could be conducted as a governmental function given the proper circumstances, without an explanation of those circumstances the Interpretation was unwilling to say that such operations would qualify as a governmental function.
As a result, since the status of public aircraft operations are determined on a “flight by flight” basis, in order to ensure that the FAA will recognize their public aircraft status, public aircraft operators will need to ensure that they comply with the applicable statutory requirements and with the FAA’s policy on public aircraft operations.
