§40125 — Title 49 Transportation | U.S. Code

Summary

Decides when government-operated or government-used aircraft count as public aircraft. It sets who and what qualify and when certain government planes do not count. Definitions: "commercial purposes" = carrying people or goods for pay; "governmental function" = activities a government does (like defense, firefighting, search and rescue, law enforcement, research, inspections); "qualified non-crewmember" = a non-crew person on board who is there for a government job; "armed forces" = as defined in title 10. If a government plane of certain listed types is used for commercial work or carries someone who is not crew or a qualified non‑crewmember, it does not count as a public aircraft. A different listed category qualifies as a public aircraft if one of these is true: it is flown under title 10; it is used to perform a governmental function under title 14, 31, 32, or 50 and not for commercial purposes; or it is chartered to provide commercial service to the armed forces and the Secretary of Defense (or the Secretary of the department that runs the Coast Guard) says the flights are required in the national interest. If the aircraft is owned by a State National Guard, it only qualifies when the Department of Defense has direct control. Another listed type can be treated as a public aircraft without a 90 continuous-day exclusive lease only if the FAA Administrator finds there are extraordinary circumstances, the aircraft will do search and rescue, the community otherwise lacks such services, and a government shows the waiver is needed to avoid an undue economic burden.

Title 49, §40125

Transportation — Source: USLM XML via OLRC

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

(1)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)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, biological or geological resource management (including data collection on civil aviation systems undergoing research, development, test, or evaluation at a test range (as such term is defined in section 44801)), infrastructure inspections, or any other activity undertaken by a governmental entity that the Administrator determines is inherently governmental.

(3)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)The term “armed forces” has the meaning given such term by section 101 of title 10.

(b)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)(1)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)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.

(d)An aircraft described in section 40102(a)(41)(D) that is not exclusively leased for at least 90 continuous days by the government of a State, the District of Columbia, or a territory or possession of the United States or a political subdivision of 1 of those governments, qualifies as a public aircraft if the Administrator determines that—

(1)there are extraordinary circumstances;

(2)the aircraft will be used for the performance of search and rescue missions;

(3)a community would not otherwise have access to search and rescue services; and

(4)a government entity demonstrates that granting the waiver is necessary to prevent an undue economic burden on that government.

Notes & Related Subsidiaries

Editorial Notes

Amendments

2024—Subsec. (a)(2). Pub. L. 118–63 substituted “aeronautical research,” for “aeronautical research, or” and inserted “(including data collection on civil aviation systems undergoing research, development, test, or evaluation at a test range (as such term is defined in section 44801)), infrastructure inspections, or any other activity undertaken by a governmental entity that the Administrator determines is inherently governmental” after “biological or geological resource management”. 2018—Subsec. (b). Pub. L. 115–254 substituted “(D), or (F)” for “or (D)”. 2012—Subsec. (d). Pub. L. 112–141 added subsec. (d). 2008—Subsec. (b). Pub. L. 110–181, § 1078(c)(1), substituted “section 40102(a)(41)” for “section 40102(a)(37)”. Subsec. (c)(1). Pub. L. 110–181, § 1078(c)(2), substituted “section 40102(a)(41)(E)” for “section 40102(a)(37)(E)” in introductory provisions. Subsec. (c)(1)(C). Pub. L. 110–181, § 1078(b), inserted “or other commercial air service” after “transportation”.

Statutory Notes and Related Subsidiaries

Effective Date

of 2012 AmendmentAmendment by Pub. L. 112–141 effective Oct. 1, 2012, see section 3(a) of Pub. L. 112–141, set out as an Effective and Termination Dates of 2012 Amendment note under section 101 of Title 23, Highways.

Effective Date

Section applicable only to fiscal years beginning after Sept. 30, 1999, see section 3 of Pub. L. 106–181, set out as an

Effective Date

of 2000

Amendments

note under section 106 of this title.

Transfer of Functions

For transfer of authorities, functions, personnel, and assets of the Coast Guard, including the authorities and functions of the Secretary of Transportation relating thereto, to the Department of Homeland Security, and for treatment of related references, see section 468(b), 551(d), 552(d), and 557 of Title 6, Domestic Security, and the Department of Homeland Security Reorganization Plan of November 25, 2002, as modified, set out as a note under section 542 of Title 6.

§40125 Qualifications for public aircraft status

Summary

Title 49, §40125

Notes & Related Subsidiaries

Editorial Notes

Amendments

Statutory Notes and Related Subsidiaries

Effective Date

Effective Date

Effective Date

Amendments

Transfer of Functions

Citations & Metadata