The U.S. Bureau of Land Management (BLM) does not intend to re-evaluate its award of an exclusive use firefighting contract for a restricted category UH-60 Black Hawk helicopter, despite having now contradicted what it told prospective bidders during the solicitation period.
The BLM issued its solicitation for a Type 1 “Heavy” helicopter last February, specifying minimum aircraft requirements that pointed toward a Sikorsky UH-60 or S-70 Black Hawk. The solicitation indicated that the aircraft would be used for missions including the transport of “qualified non-crewmembers” and specified that the winning contractor must operate in accordance with all portions of 14 Code of Federal Regulations (CFR) part 91, “including those portions applicable to civil aircraft.”
Some prospective bidders — including Timberline Helicopters of Sandpoint, Idaho — recognized a conflict in the BLM’s requirements. Currently, no model of the Black Hawk holds a standard airworthiness certificate (normal or transport category) from the Federal Aviation Administration (FAA), which is a prerequisite for transporting passengers. Although there are now a number of UH-60 and S-70 Black Hawks operating in the United States under restricted category type certificates, 14 CFR part 91 strictly limits who can be carried onboard a restricted category aircraft.
Specifically, 14 CFR 91.313 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.”
Although a restricted category aircraft may be certificated for the special purpose of firefighting through the “aerial dispensing of liquids” (ADL), the FAA has made it clear that such a certification does not allow it to transport firefighters generally. Instead, any non-flight crewmembers on board must be there to perform tasks essential to the ADL operation, such as hooking up the water bucket or directing water drops via radio.
Civil aircraft regulations do not apply to public aircraft — aircraft operated by or exclusively for a government entity — provided those aircraft carry only crewmembers or qualified non-crewmembers whose presence is associated with the performance of a governmental function. That’s a definition that could readily apply to a BLM exclusive-use helicopter transporting only the agency’s own firefighters.
However, the FAA now requires commercial operators who conduct public aircraft operations (PAOs) under contract to obtain a written declaration of public aircraft status from their contracting government entity. When Timberline asked the BLM in March 2017 whether it intended to issue a PAO declaration for the transport of “qualified non-crewmembers,” the agency replied that it did not.
“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 B1 Scope of Contract,” the BLM stated.
Timberline concluded that the BLM’s solicitation was defective, as the minimum aircraft requirements called for a Black Hawk, yet no existing Black Hawk could legally transport passengers under part 91. Timberline urged the BLM to cancel the solicitation; when the agency declined to do so, Timberline protested the solicitation to the Government Accountability Office.
The protest was ultimately unsuccessful. On June 29, 2017, the BLM awarded a contract worth up to $14 million to PJ Helicopters for a restricted category UH-60A. By the time the exclusive use contract period concluded in September, the agency was using the Black Hawk to transport firefighters between helibases, sometimes in the absence of any ADL operation.
On Sept. 12, 2017, Vertical asked the BLM whether a PAO declaration had been issued for these flights. A spokesperson responded, “A public aircraft operations declaration is not necessary, therefore one has not been issued.” The BLM maintained that clarification correspondence it had received from the FAA prior to the award of the contract authorized the conveyance of firefighters as essential or necessary personnel.
The FAA begged to differ, telling Vertical, “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.”
A PAO declaration after all
The second season of the contract started this May. On May 24, the FAA issued a legal interpretation explicitly addressing the BLM’s use of the restricted category UH-60A to transport firefighters for ground firefighting purposes. The FAA concluded, “no — the activity cannot be performed in compliance with [14 CFR part 91 or part 119].”
Since then, the BLM’s parent agency, the Department of the Interior (DOI), has issued a PAO declaration for the contract. According to a BLM spokesperson, this declaration “is specific to the exclusive-use contract UH-60 Black Hawk and provides departmental approval to transport firefighters regardless of water bucket utilization.”
The decision to use the UH-60A for firefighter transport goes against a longstanding DOI and U.S. Forest Service (USFS) policy against transporting interagency personnel on restricted category aircraft. In a recent policy clarification memo, the BLM defended its departure from this policy by arguing that “contract language prevails” when there is a conflict between a contract and the Interagency Helicopter Operations Guide, and “the transportation of firefighters on N803PJ is within the scope of the Type 1 contract.”
The PAO declaration appears to resolve the most pressing legal concerns associated with the Black Hawk’s operation. However, the contract initially counted on the FAA’s safety oversight — and it is not clear whether the BLM, in hastily issuing a PAO declaration, has ensured that it has the policies and resources necessary to assume that oversight responsibility itself.
The PAO declaration also doesn’t do much for those operators like Timberline who declined to bid on what they correctly perceived to be a legally questionable, albeit lucrative, contract.
When Vertical asked the BLM if it intends to cancel and re-bid the contract in light of its decision to issue a PAO declaration after all, the agency indicated that it does not.
“Based on information received from the FAA Office of the Chief Council, we will continue to operate the Type 1 helicopter within the terms and conditions of the contract and FAA regulations,” the BLM spokesperson stated.
In a statement provided to Vertical, Timberline Helicopters chief operating officer Travis Storro responded, “As an operator of the incredibly capable and effective UH-60 Black Hawk — an aircraft with redundant safety systems, twin-engine reliability, and fast incident response capabilities — Timberline has always believed that it is the right aircraft for the helitack mission.
“However, FAA regulations and policies, as well as USFS and DOI policies, have prohibited transport of passengers or cargo in restricted category helicopters. We believe these issues should have been resolved before awarding a contract that would require the successful bidder to violate FAA regulations and interagency policies to perform under the contract.”
Very well written article / comprehensive topic made easy to understand.
Now that the DOI has issued PJ a PAO declaration, it does not absolve the company of operating contrary to the FARs the past year – that being said – will the FAA fine them for violations of 91 and 135 for carrying passengers in a restriced category aircraft, and then also 121 for carrying more that 9 – since they do not have the required data recorders and such?
The fact that DOI hired them to perform work outside of what their certificates allow makes what they did PAO by definition. AC 00.1-1A par 8 (h) says that lack of a written declaration does not change the legal status of a valid PAO. There is nothing IN REGULATION that says you must file with the FAA. The AC is full of “should” and never says “must” because it is not regulatory. Having said this, you can bet if things had gone south and they crashed into an orphanage the FAA would have said… ” nope, not us, we had no oversight or jurisdiction that was a PAO whether DOI acknowledged it or not. Shame on DOI for not understanding the regs. as they were conducting and PJ was accepting a public mission whether they acknowledged it or not.
Not all restricted category aircraft qualify for this type operation, “Carrying of passenger”.
That said, the CH-47, UH-60 and or S-70 rotorcraft do this operation (carrying of troops and high-ranking officials) daily for our nation’s military worldwide!
In the past year 2017, social media has exposed in a photographical way how these aircraft (CH-47, UH-60) as restricted category type certificate (RCTC) aircraft, under State governments contracts. These rotorcraft were instrumental in carrying US citizens (passengers) and cargo in Texas, Florida and Puerto Rico.
The FAA rules are in place for the safety of the Public, but at times (like in this editorial with what the regulations allow and don’t allow to do) do not take into consideration, what these aircraft were made for … carrying of people/troops/officials (passenger)…
Before I am lectured about the regulations, I do understand the regulations affecting restricted category 14 CFR Part 21.25, §91, §119, §123, §135 and FAA Order 8110.56B.
Just seeing things from the Public eye, point of view.