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A Question of Public Use

Original Article in Vertical Daily News On Aug. 5, 2008, a Sikorsky S-61N operated by Carson Helicopters under contract to the U.S. Forest Service (USFS) crashed during takeoff from a helibase near Weaverville, California. At the time of the accident, the aircraft was being used to transport firefighters from “Helispot 44” to another helispot on the Iron Complex fire. Seven firefighters, the pilot-in-command, and a USFS inspector pilot were killed in the crash, which subsequently became known as “Iron 44.” Another three firefighters and the co-pilot were seriously injured.

Timberline Helicopters, which currently operates three restricted category UH-60A Black Hawks, protested the BLM solicitation to the GAO on the grounds that it was defective. However, the GAO denied the protest and two subsequent appeals. Amy Jorgenson Photo

The National Transportation Safety Board (NTSB) led a long and complex investigation into Iron 44, finding, among other things, that the operator had provided the pilot-in-command with an incorrect weight for the empty aircraft, and had also altered the helicopter’s takeoff power available charts to eliminate a safety margin. In 2015, former Carson Helicopters vice president Steven Metheny was sentenced by a U.S. District Court judge to over 12 years in prison for his role in falsifying the aircraft’s weight-and-balance and performance charts. Levi Phillips, Carson’s director of maintenance at the time of the accident, was sentenced to 25 months in prison.

The investigation into Iron 44 raised questions about the oversight of public aircraft operations, in particular those conducted by commercial operators under contract to government agencies. In a 2004 report on the in-flight breakups of three contracted fixed-wing firefighting aircraft, the NTSB had determined that although the Department of Interior (DOI) and the USFS had “attempted to compel safe operations through the use of contract language that required compliance with FAA [Federal Aviation Administration] regulations, their oversight and infrastructure were not adequate to ensure safe operations.” In the case of Iron 44, the NTSB concluded that the USFS’s oversight remained inadequate, finding that “effective oversight would likely have identified that Carson Helicopters was using improper weight and performance charts for contract bidding and actual load calculations.”

Moreover, the NTSB found that the FAA had also missed opportunities to flag the falsified charts. According to the NTSB’s report on Iron 44, the FAA inspectors charged with surveilling Carson “consistently asserted that since [Carson Helicopters] primarily operated under contract to the USFS, the FAA was not responsible for the oversight of a majority of the company’s operations.” But the NTSB pointed out that the accident helicopter had been added to Carson’s 14 Code of Federal Regulations (CFR) part 135 operations specifications before going on contract with the USFS, during which time it was unquestionably subject to FAA oversight.

In the aftermath of Iron 44, the USFS and FAA both took steps to strengthen their oversight of contracted firefighting operators, as well as to clarify their respective responsibilities for that oversight. In early 2014, the FAA issued a revised version of Advisory Circular (AC) 00-1.1A, which provides information to assist in determining whether a government-contracted aircraft operation legally qualifies as a public aircraft operation (PAO) — not subject to FAA oversight — or as a civil aircraft operation subject to all applicable FAA regulations. The AC instructs commercial operators who conduct PAOs to obtain a written declaration of public aircraft status from their contracting government entity, and submit that declaration to the appropriate FAA Flight Standards District Office.

“This will serve as notice to the FAA that there is a contract between the civil operator and the government entity that anticipates the conduct of PAO,” the AC explains. “Contracted civil operators must be aware that unless there is a declaration of public aircraft status on file with the agency, the FAA considers all operations civil; civil operations must be conducted in accordance with all applicable civil aviation regulations.”

This policy, adopted to address deficiencies exposed by Iron 44, is why the specter of that crash hangs over a new firefighting contract for the Bureau of Land Management (BLM), a DOI agency. On June 29, 2017, the BLM awarded a contract worth up to $14 million for the transport of up to 12 firefighters in a restricted category Sikorsky UH-60A Black Hawk. However, the contract raised regulatory questions long before it was awarded — and is raising more urgent questions now that the aircraft is actively transporting firefighters without a declaration of public aircraft status. Will the FAA intervene to enforce civil aircraft regulations, or does the contract signal a return to the ambiguous oversight that was implicated in the tragedy of Iron 44?

Defining Public Aircraft

Generally speaking, a public aircraft is an aircraft operated by or exclusively for a government entity for an approved governmental function (the complete definition is contained in 14 CFR 1.1). Public aircraft are exempt from the regulations that apply specifically to civil aircraft provided they only carry crewmembers, or qualified non-crewmembers “whose presence is required to perform, or is associated with the performance of, a governmental function.”

Firefighting is one of the governmental functions explicitly listed in 14 CFR, and firefighters can be considered qualified non-crewmembers in the context of public aircraft operations. That’s why the California Department of Forestry and Fire Protection (Cal Fire) can transport fire crews on its fleet of modified, former military Bell “Super Huey” helicopters, which do not have civil type certificates. The state of California necessarily assumes all liability for Cal Fire’s operations.

Public aircraft operated by government entities are exempt from the regulations that apply specifically to civil aircraft, provided they only carry crewmembers or qualified non-crewmembers. Skip Robinson Photo

Civil aircraft operators who transport passengers for hire must use aircraft with standard airworthiness certificates and hold an operating certificate in compliance with 14 CFR part 119. Operators who transport USFS firefighters are contractually required to hold air carrier certificates and operate in accordance with part 135, which governs commuter and on-demand operations.

However, the federal government also contracts with some operators for restricted category civil aircraft, which are used for special purpose operations such as water dropping (more formally known as the “aerial dispensing of liquids,” or ADL). 14 CFR 91.313 prohibits restricted category aircraft from performing operations other than the special purpose operations for which they are specifically certificated, and from carrying persons or property for compensation or hire.

The regulation further states that no person may be carried on a restricted category civil aircraft unless that person is a flight crewmember or flight crewmember trainee, “performs an essential function in connection with a special purpose operation for which the aircraft is certificated,” or “is necessary to accomplish the work activity directly associated with that special purpose.” That’s a much stricter limitation than the one for qualified non-crewmembers on public aircraft, who only need to be “associated with the performance of a governmental function.”

In January 2017, the BLM issued a request for information (RFI) for “fully contractor operated and maintained exclusive use helicopter flight services” entailing substantially the same requirements as a solicitation it had issued, then cancelled, in 2016. The RFI called for a Type I Heavy (more than 12,500-pound/5,670 kilogram) helicopter with 12 insured personnel seats, a 140-knot cruise speed, and other specifications that pointed toward a particular helicopter model: the Black Hawk.

One of the commercial operators interested in the RFI was Timberline Helicopters of Sandpoint, Idaho, which currently operates three restricted category UH-60A Black Hawks. However, Timberline chief operating officer Travis Storro noted that some operations identified by the BLM — including pre-positioning up to 12 firefighters at a time — could not legally be conducted under 14 CFR, because no version of the Black Hawk holds a standard category type certificate from the FAA.

“As members of the aerial firefighting community, we strongly believe in utilizing the available resources to their fullest potential while maintaining compliance with all applicable regulations and safety protocols,” Storro wrote in a Jan. 16 response to the RFI. “We would be very willing to contribute to the development of a specification for the federal government to solicit UH-60/S-70 helicopters for helitack and other firefighting related operations.”

The BLM did not respond to Storro’s letter. In February 2017, it issued a solicitation based on its RFI, explicitly stating that the winning contractor “must operate in accordance with their approved FAA operations specifications and all portions of 14 CFR 91, including those portions applicable to civil aircraft.” In response to questions from Timberline, the agency reiterated that “there is no intent to issue a public aircraft declaration, the agency sustains its position that an aircraft which meets the requirements of this solicitation will be able to perform most missions listed under [the] scope of contract.”

AC 00-1.1A, the advisory circular that was updated in the wake of Iron 44, is clear on the responsibilities of contracted civil operators: “If you are offered a contract to perform operations that could be contrary to 14 CFR regulations applicable to the operation, it is your responsibility to ensure that a written declaration of public aircraft status is on file with the FAA or to refuse the contract.” Because the BLM had stated that it did not intend to issue a public aircraft declaration — which Timberline believed was the only way to legally transport firefighters as specified in the solicitation’s scope of services — the company decided to protest the solicitation to the Government Accountability Office (GAO) on the grounds that it was defective.

Conflicting Interpretations

The GAO issued an initial denial of Timberline’s protest on June 27 (subsequently denying two appeals in August and September). The documents provided with its decision revealed that Walker Craig, Technical Services Division chief for the DOI’s Office of Aviation Services, had on several occasions sought clarification from the FAA on the legality of carrying firefighters on board a restricted category aircraft — but without specifying the exact operations, such as pre-positioning firefighters, that the BLM intended to perform.

The USFS contractually requires operators who carry firefighters to comply with civil aircraft operating rules. However, the NTSB has noted that certain firefighting missions, such as rappel operations, are not adequately addressed by federal aviation regulations, and require mission-specific standards and oversight. Skip Robinson Photo

For example, on March 15, 2017, while the solicitation was still open, Craig asked the FAA, “Is an aircraft with a current restricted airworthiness certificate on board which details certification under 14 CFR 21.25 (b) (2. Forest and wildlife conservation) permitted to carry firefighters as a civil operation under 14 CFR 91.313 (d)(3) or (d)(4)?” On April 20, FAA aviation safety inspector John Drago responded “yes,” then pointed Craig to the preamble for 91.313 for “the determination of whether these firefighters are ‘necessary’ or ‘essential.’ ”

The GAO concluded that this consultation was sufficient for supporting the BLM’s position, and stated in its ruling, “Our review of the records leads us to conclude that Timberline’s understanding of the relevant FAA regulations is erroneous.” Two days later, the BLM awarded its contract for a military surplus UH-60A Black Hawk with a restricted category type certificate. In July, the BLM announced the award of the Boise, Idaho-based contract in the form of an interagency briefing paper, which stated that the aircraft would be used for operations including prepositioning in support of wildland fire, and delivery of “mission essential firefighters” to and from wildland fires.

However, when Storro submitted his own, scenario-based questions to the FAA, Drago provided answers at odds with the BLM’s declared operations. For example, Storro asked, “Is delivery of firefighters to a fire and recovery of firefighters following deployment to a fire considered ‘aerial work’ as listed in 14 CFR part 119.1(e) if there is no aerial dispensing of liquid or external load operation that takes place during those missions?”

Drago responded, “No, there is no special purpose operation (ADL). The carriage of these people would be considered transportation subject to part 119 rules.”

Timberline wasn’t the only operator who had questioned the legality of such operations. In April, the FAA received a request for legal interpretation from Hillcrest Aircraft Company concerning similar scenario-based questions. When the FAA finally answered that request with a memo on Aug. 28, its responses, prepared by Drago, echoed the answers he had provided to Timberline.

The interpretation emphasized, “The determination of which people may be carried on a restricted category civil aircraft is based upon whether they perform an essential function in connection with a special purpose operation for which the aircraft is certificated or they are necessary to accomplish the work activity directly associated with that special purpose. What those people are called or how they are referred to has no bearing on this decision.”

Of course, the questions that were posed before the contract was active were purely hypothetical. When the BLM’s Boise Helitack crew went available with the Black Hawk on Aug. 19, those questions assumed a more immediate significance.

PJ Helicopters of Red Bluff, California, was awarded the BLM’s Black Hawk contract, telling Vertical in August, “PJ Helicopters is a confident in the ability of a federal agency to issue and award a solicitation that is legal and sound in all aspects.” Skip Robinson Photo

On Sept. 12, Vertical learned that the Black Hawk had been conducting flights with 14 people on board, and asked the BLM whether the agency had issued a public aircraft declaration for those flights. A BLM spokesperson responded, “The aircraft is being operated with a flight crew of two and 12 essential personnel associated with the aircraft’s mission. A public aircraft operations declaration is not necessary, therefore one has not been issued.”

One week later, the FAA received an eyewitness report that the Black Hawk had been used to transport BLM fire employees to a helibase where they were assigned to crew or manage other helicopters — activities that were clearly not essential to the Black Hawk’s aerial work operations. Vertical contacted the eyewitness to confirm his statements independently.

No Clear Resolution

Despite the pertinent oversight issues raised by Iron 44, there are some important differences between the circumstances of that crash and the BLM’s current operations, including very different aircraft.

The NTSB determined the probable cause of the accident to be specific actions taken by Carson Helicopters that led to the pilots overestimating the aircraft’s load-carrying capacity. (Carson Helicopters disputed this determination, maintaining that the accident had been caused not by inaccurate charts, but by a loss of power in the No. 2 engine due to contamination of the fuel control unit.)

However, the board also highlighted serious concerns with the accident helicopter, an older transport category helicopter that had been manufactured in 1965. The board found that several features of the aircraft had contributed to the high number of fatalities: fuel tanks and seats that were not crash-resistant, and the use of an inappropriate release mechanism on the cabin seat restraints.

By contrast, the Black Hawk is significantly more capable and crash-resistant than many of the older standard category helicopters that are currently being used to transport USFS and DOI firefighters. Indeed, the only reason why the Black Hawk does not have a standard category type certificate is because Sikorsky has not found it worthwhile to pursue one.

“The UH-60 was designed to meet very tough U.S. military airworthiness and combat fitness standards,” explained Jeannette Eaton, Sikorsky regional sales director for North America, confirming that Sikorsky has no plans to pursue a full FAA type certificate for the Black Hawk family. “From a high-level viewpoint, military and civil certification standards are fundamentally similar . . . but in detail the FAA and military requirements are quite different, and an aircraft designed and qualified under one system would not be easily accepted under the other.”

The Black Hawk is widely recognized as an exceptionally capable firefighting aircraft. The only reason why it does not have a standard category type certificate is because Sikorsky has not found it worthwhile to pursue one. Dan Megna Photo

With its current Black Hawk contract, the BLM appears to be squarely focused on the capabilities of the aircraft, and not on the finer points of its operation. Its July briefing paper on the contract includes a four-page safety assessment and mitigation of features specific to the model, such as the Black Hawk’s larger footprint and greater rotor wash. However, the assessment doesn’t mention any concerns related to the maintenance, equipment, or pilot training requirements for a restricted category aircraft, which cannot currently be added to the operations specifications of an air carrier certificate.

14 CFR part 135 spells out strict operational and maintenance requirements for aircraft that carry passengers, with particularly stringent requirements for multi-engine aircraft with 10 or more passenger seats. But with restricted category aircraft ineligible for part 135, the standards to which the BLM Black Hawk is being operated and maintained are not as clearly defined as they would be for a part 135 transport category aircraft. Meanwhile, the BLM’s refusal to issue a public aircraft declaration for the contract suggests that the agency is unwilling to assume safety oversight responsibility, and is counting on the FAA to help assure the safety of its operations — even though at least some of those operations appear to be in violation of FAA operating rules.

Vertical submitted a number of questions about the contract to the BLM in early September, but as this story was published was still waiting for responses. On Sept. 18, an FAA spokesperson provided the following statement: “The FAA and DOI/BLM are still working to clarify which personnel are ‘essential and necessary’ for the operation of their restricted category aircraft. The FAA allows transportation of people in restricted category aircraft only if they are essential and necessary for the aerial work portion of the special purpose operation specified — in this case, aerial dispensing of liquid for forest and wildlife conservation.”

Storro emphasized to Vertical that Timberline has protested the BLM contract not because the company doubts the fitness of the Black Hawk, but because the operations lack legal clarity and defined oversight responsibility from both the FAA and the contracting agency. “Either the rules need to change, or the rules need to be enforced,” he said. “Both are the sole responsibility of the FAA.”

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