Reyes-AWP-230 2013

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Federal Aviation Administration

Date: FEB 2~ 20tl

To: Manager, Flight Standards Division, A WP-230

Fro g ssistant Chief Counsel for International Law, Legislation and Regulations, AG 200

Prepared by: Karen L. Petronis, Senior Attorney for Regulations, AGC-200 Dean E. Griffith, Attorney, AGC-220

Subject: Public aircraft operation of helicopter external load operations under contract Thank you for your memorandum dated October 26, 2012, requesting an interpretation of several regulations and other materials that affect the operation of helicopter external load operations. By letter to the Honolulu Flight Standards District Office, contained in the package you sent to us, Jack Harter Helicopters ofLihue, HI, questioned the public aircraft operation status of an operation open for bid in Hawaii, and asked whether it would be permissible under the contract to fly a Class D ex:temal load using a single-engine helicopter. The author questions whether the proposed contract can be operated as a public aircraft operation when it is not an exclusive use contract for at least 90 days.

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In your transmittal to us, you also note that the actual funding for the contract may be from the United States Department of Justice. The contract bid is for a marijuana plant eradication program.

The invitation for bid was prepared by the County of Kauai for the Kauai Police Department. For the purposes of this analysis, we presume that the county and its police department would qualify as the government of a state or a political subdivision to conduct a public aircraft operation under the statutory definition found in 49 USC 40102(a)(41), paragraph (C) or (D). Since the county wants to contract with another entity to provide helicopter services, the applicable statutory definition for qualification is Section 40 l 02(a)(41 )(D):

(41) ''public aircraft" means any ofthe following: ...

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(D) An aircraft exclusively leased for at least 90 continuous days by the government ofa State, the District ofColumbia, or a territory or possession ofthe United States or a political subdivision ofone of these governments, except as provided in section 40125{b). Accordingly, for the subsequent operation by a contractor to reach the first stage of qualification as a public aircraft operation, the lease must be for exclusive use for a minimum of 90 days. An aircraft leased on occasion or as needed (and otherwise free to operate as a civil aircraft for the contracting entity) does not qualify under this statutory provision. An aircraft operated under such a contract would not qualify as a public aircraft operation regardless of the length of the 'asneeded' contract or the status of the contracting government entity. The other concern expressed regarding the underlying funding ofthe contract operations has previously been addressed by this office. In opinions dated October 8, 1998 (letter of Nicholas Garaufis to Carol J. Harrison) and September 28, 2009 (memo from Rebecca MacPherson to Gayle Fuller),. aircraft operated by a state entity for drug eradication efforts do not qualify as public aircraft operations when the funding for such operations is the Drug Enforcement Administration. Such operations are considered to have a commercial purpose as described in 49 use 40125, and are thus civil operations that must be conducted in accordance with the applicable regulations in Title 14 of the Code of Federal Regulations. This opinion has not changed since the first letter was issued in 1998; we have included a copy of these opinions for your convenience.

Therefore, operations performed under this contract would not qualify as public aircraft operations and would need to be conducted under applicable FAA regulations. Additionally, we note that any Class D external load rotorcraft operations performed under the contract would need to be conducted under part 133 rules using a multi-engine helicopter. See 14 C.F.R. §§ 133.1 , 133.45(e)(l).

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