Regulatory questions surround BLM Black Hawk contract

The U.S. Bureau of Land Management (BLM) has awarded a contract worth up to $14 million to PJ Helicopters for the transport of firefighters in a restricted category UH-60A Black Hawk — raising new questions about the use of restricted category aircraft in civil operations.

A recently awarded Bureau of Land Management contract for a restricted category Black Hawk helicopter has raised new questions about who is permitted to fly on restricted category aircraft. Shawn Evans Photo
A recently awarded Bureau of Land Management contract for a restricted category Black Hawk helicopter has raised new questions about who is permitted to fly on restricted category aircraft. Shawn Evans Photo
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The Boise, Idaho-based contract was awarded on June 29, 2017, following an 18-month solicitation process in which prospective bidders repeatedly questioned the legality of the BLM’s intended operations. One of them, Timberline Helicopters, filed a formal protest of the contract to the Government Accountability Office (GAO), asserting that the operations the BLM intended to perform under the contract would be contrary to regulations.

The GAO denied the initial protest as well as Timberline’s petition for reconsideration; Timberline has petitioned the GAO on the matter yet again. In the meantime, the BLM is moving forward with a contract that not only represents a departure from longstanding Department of the Interior (DOI) policy against transporting DOI personnel on restricted category aircraft, but also holds the potential for violations of federal aviation regulations.

Non-standard category aircraft are nothing new in U.S. aerial firefighting operations. For example, the California Department of Forestry and Fire Protection (Cal Fire) operates a fleet of modified, former military Bell “Super Huey” helicopters for operations including transporting fire crews for initial attack.

However, because Cal Fire’s Hueys are operated by a government — the state of California — for legitimate governmental functions, they qualify as “public aircraft,” not subject to the regulations and Federal Aviation Administration (FAA) oversight that pertain to civil aircraft. The state of California necessarily assumes all liability for Cal Fire’s operations.

Most of the federal government’s aerial firefighting operations are performed not by public aircraft, but by contracted civil operators who are subject to FAA rules and oversight. Those operators who transport fire personnel are required to hold a 14 Code of Federal Regulations (CFR) part 135 air carrier certificate, which allows them to transport passengers for hire using standard category aircraft.

Although the U.S. Forest Service also contracts with civil operators for restricted category aircraft, these are only used for the special purpose operations for which those aircraft are certificated, such as water dropping (also known as the “aerial dispensing of liquids,” or ADL). 14 CFR 91.313 prohibits restricted category aircraft from performing operations other than these approved special purpose operations, 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 (1) is a flight crewmember; (2) is a flight crewmember trainee; (3) performs an essential function in connection with a special purpose operation for which the aircraft is certificated; or (4) is necessary to accomplish the work activity directly associated with that special purpose.”

In an Interagency Aviation Tech Bulletin (IA 07-03) jointly issued by the DOI and U.S. Forest Service in 2007, the agencies referred to 91.313, and also pointed out that “type certification for restricted category aircraft may be lower than the level of safety for standard category aircraft.” They concluded that “restricted category aircraft may not carry our people [or] carry our cargo internally” (emphasis original).

For years, this DOI and Forest Service policy was relatively noncontroversial. Then the BLM — a DOI agency — decided it wanted a Black Hawk.

A Defective Solicitation?

In February 2016, the BLM issued a solicitation for a Type I Heavy (more than 12,500-pound / 5,670 kilogram) helicopter with 12 insured personnel seats, not including pilot and co-pilot seats. The solicitation further specified a 140-knot cruise speed and stated that preference would be given to an “aircraft delivered by the original equipment manufacturer (OEM) as a civil aircraft with a restricted category airworthiness certificate.” The solicitation appeared to have been written with the Sikorsky S-70 Black Hawk variant in mind, which would have narrowed the competition to just one U.S. civil helicopter operator: Boise-based Firehawk Helicopters.

Timberline Helicopters believes the Black Hawk would make "an excellent helitack platform," but perceives regulatory barriers to operating it in that role as a civil aircraft. Ammy Jorgenson Photo
Timberline Helicopters believes the Black Hawk would make “an excellent helitack platform,” but perceives regulatory barriers to operating it in that role as a civil aircraft. Ammy Jorgenson Photo

During the question-and-answer period for the solicitation, prospective bidders raised questions about the prohibition against carrying passengers in restricted category aircraft. The BLM responded by stating that 14 CFR 91.313 permits “qualified non-crewmembers” who “perform an essential function in connection with a special purpose operation for which the aircraft is certificated” to be transported on restricted category aircraft. (Note that “qualified non-crewmember” is not a term that appears in 91.313 — it appears only in the definition of “public aircraft” in 14 CFR 1.1.)

The BLM ended up canceling its 2016 solicitation. But in January 2017, it issued a request for information (RFI) for “fully contractor operated and maintained exclusive use helicopter flight services” entailing substantially the same requirements as the original solicitation.

As the operator of two restricted category UH-60A Black Hawk helicopters, Timberline Helicopters of Sandpoint, Idaho, was naturally interested in the BLM’s requirements. According to Timberline chief operating officer Travis Storro, the company believes that the Black Hawk would make “an excellent helitack platform, and could contribute dramatically to the BLM’s firefighting capabilities.”

Nevertheless, in a Jan. 16 letter composed in response to the RFI, Storro felt compelled to point out, “It appears from the RFI that the BLM is seeking an aircraft that may not exist. There are a few items that are inconsistent with FAA regulations and may be impossible for any contractor to provide.”

Storro explained that 91.313 would permit firefighters to be transported on a restricted category helicopter under some circumstances — for example, if they were needed to provide ground support for the helicopter’s water-dropping operations. But he noted that other operations identified by BLM, including pre-positioning up to 12 firefighters at a time, would require a part 135 air carrier certificate and a transport category helicopter.

“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. “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.”

Storro told Vertical that the BLM did not respond to his letter. The agency did, however, issue a second solicitation for exclusive use helicopter flight services in February 2017. This solicitation was very similar to its 2016 solicitation, but eliminated the target requirement for a helicopter originally delivered as a civil aircraft — thus opening the door for competition from military surplus UH-60 Black Hawks.

The BLM was clear in its solicitation 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 submitted by 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.”

Storro told Vertical, “I spent considerable time researching this issue, and sought clarification from many different branches of the FAA including aircraft certification, flight standards, and even the FAA subject matter experts in Washington, D.C., without anyone being able to explain how these contemplated operations could be legally performed as a civil aircraft in compliance with part 91 and 119.” Timberline decided to protest the solicitation to the GAO on the grounds that it was defective.

The GAO issued a denial of Timberline’s protest on June 27. 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 the BLM’s intended operations — including while the solicitation was still open.

In one response to Craig’s inquiries, FAA aviation safety inspector John Drago told Craig that “yes, firefighters are permitted to be carried on a restricted category aircraft with a special purpose of forest and wildlife conservation and/or a specification with aerial dispensing of liquids for fire suppression.” However, Craig did not specify the exact activities the BLM intended to perform with the aircraft — such as pre-positioning firefighters — and Drago did not ask for more details.

Nevertheless, the GAO decided that this consultation was sufficient. In denying Timberline’s protest, the GAO declared, “Our review of the record leads us to conclude that Timberline’s understanding of the relevant FAA regulations is erroneous.” Two days later, the BLM awarded its contract to Red Bluff, California-based PJ Helicopters, which also operates military surplus UH-60A Black Hawks with a restricted category type certificate.

Conflicting Interpretations

Timberline immediately petitioned the GAO for reconsideration. On Aug. 1, the GAO denied its petition, finding that Timberline had failed to demonstrate “any material error of fact or law in our prior decision that would warrant our reconsideration.”

PJ Helicopters told Vertical that the company is "confident in both the FAA and the BLM at this juncture" as it moves forward with its BLM contract. Skip Robinson Photo
PJ Helicopters told Vertical that the company is “confident in both the FAA and the BLM at this juncture” as it moves forward with its BLM contract. Skip Robinson Photo

In the meantime, the BLM issued a briefing paper on the restricted category Black Hawk for its interagency partners — stating, among other things, that “mission essential firefighters” can be on board the aircraft for operations including “pre-position in support of wildland fire,” “delivery of firefighters for the suppression of a wildland fire,” and “recovery of firefighters following deployment to a wildland fire.”

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Storro submitted detailed, scenario-based questions to Drago based on the BLM’s intended operations. On Aug. 4, only three days after the GAO denied Timberline’s petition for reconsideration, Drago responded by e-mail, indicating that most of the scenarios presented would not be permitted under 14 CFR.

For example, Storro asked, “Would pre-positioning the aircraft in support of a wildland fire (moving the aircraft from a staging location to another staging location to be closer to the fire activity) when there is no intention of the aircraft dropping water during that flight operation, be a time that firefighters could be legally transported aboard the aircraft?”

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

Similarly, Storro asked, “Is the 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.” On Aug. 8, Drago followed up with Storro to confirm that the agency’s legal department had verified that his responses “fairly represent FAA policy.”

These conflicting declarations from federal agencies have created uncertainty not only for aerial firefighting contractors, but also for other civil helicopter operators who use or compete with restricted category aircraft. Arguably, UH-60 Black Hawks — which incorporate safety features such as triple redundant hydraulics — represent a higher baseline level of safety than the older Bell medium helicopters currently being used to transport firefighters.

However, restricted category aircraft vary enormously in their reliability and upkeep. Without more stringent safety standards in place — such as those that apply to standard category aircraft — a more permissive interpretation of 91.313 could open the door to wider use of cheaper, less reliable helicopters without the operational safeguards of part 135, compromising safety and undercutting operators who have invested in standard category aircraft.

Timberline has petitioned the GAO on the matter a third time; as of Monday, Aug. 21, the GAO had yet to render a decision. A BLM spokesperson told Vertical that the agency would not be able to comment on the contract award while Timberline’s bid protest was still pending.

Meanwhile, Vertical submitted questions to the FAA after hours on Aug. 18. An FAA spokesperson said that due to the short notice, the agency would be unable to provide responses by the requested deadline of Aug. 21, but would work to respond as soon as possible.

For its part, PJ Helicopters submitted the following statement: “PJ Helicopters is confident in the ability of a federal agency to issue and award a solicitation that is legal and sound in all aspects. We are confident in both the FAA and the BLM at this juncture and are excited to be on the forefront of a mission that will undoubtedly help preserve and protect wildland regions throughout the western U.S.”

Despite the apparent confidence of PJ and the BLM in their new contract, a U.S. Forest Service spokesperson told Vertical that the Forest Service does not intend to follow the BLM’s lead, and will be sticking with its existing policy regarding restricted category aircraft. When asked to weigh in, Helicopter Association International (HAI) vice president of operations Christopher Martino stated, “We support the safe operation of all rotorcraft, including restricted category,” adding, “the complexities associated with the determination of who can and who can’t fly [as an essential crewmember] rest solely with the FAA.”

“I won’t say we are the experts in restricted category,” Storro told Vertical. “I will, however, say that after 17 years of experience in the utility helicopter industry, I have never seen a restricted category civil aircraft transporting firefighters. This has always either been a public aircraft, such as Cal Fire, or a part 135 aircraft like many reputable 135 operators provide to the government every season for this exact operation.”

He continued, “Usually, if something hasn’t been done before, it’s because there’s a regulatory barrier that nobody has overcome.” In the case of the BLM and the Boise contract, it remains to be seen how that barrier will be interpreted and enforced — and what implications that will hold for the rest of the utility helicopter industry.

Editor’s note: This story has been edited with respect to the certification status of Cal Fire’s helicopter fleet.

10 thoughts on “Regulatory questions surround BLM Black Hawk contract

  1. The FAA regulates CIVIL aircraft. Public aircraft are not Civil as they are now government aircraft no matter their status outside of government operations. Public law trumps FAA regulations and no matter what the FAA thinks, they cannot change the LAW.

  2. There are several errors in this article. CAL FIRE does not operate restricted category helicopters. The Huey fleet is un-type certificated and carries no airworthiness certificate. Most operators understand that a contracted civil aircraft may conduct public aircraft operations as soon as it shows up on a national ( Federal) contract and has made the proper notifications to the local FSDO for their declaration of being a public operation. However, many do not realize that when working for a state or more local agency a minimum 90 day exclusive use contract is required before they may begin operating as a public aircraft. Except for the handful of exclusive use contracts CAL FIRE operates and the State’s own aircraft , all of the outside aircraft are CWN and are not ever public aircraft and must therefore operate pursuant to their FAA certificates. This becomes essenially impossible for certain 135 operators who must maintain corporate operational control of their aircraft but cannot possibly do that when working a fire. The reason no Federal agency has previously carried qualified non crewmembers in restricted category aircraft is that they chose not to. There is nothing in Federal statute that prevents them from doing this as a PAO. Civil certification of the aircraft makes no difference.
    The statutes in 49 of the US code, 40102 and 40125 pretty much explain all of this and much more. The Code of Federal Regulations (CFRs) doesn’t mention public operations and the only FAA oversight of PAOs is for the FAA to make the determinationthat you either are or are not operating as a public aircraft.

    These issues are complicated and are by no means black and white. There are some operational situations that have no satisfactory guidelines in statute. Policy becomes the guiding hand in those cases. This is all not to mention potential conflicts on a joint command incident when one agency brings in an aircraft on contract for carrying helitack crews and the other doesn’t alow that policy. The use of restricted category aircraft for any governmental function, when not operating for profit by the government, I believe, is clearly legal as a PAO. The FAA has no oversight beyond determining qualification for conducting PAOs (except for the rules everyone must follow when operating in the national airspace and the fact that you can’t operate a restricted cat. aircraft beyond US borders without the approval of the country you are in) . The contracting agency becomes the oversight authority during PAOs.
    CFR 119 has nothing to do with this issue. Public aircraft operations are not even mentioned in 119. That part has only to do with who must have an operating certificate. I think it odd that firefighting is listed as something to which 119 doesnt apply to because doing that as a non-PAO is really no different than a 133 certificate holder slinging concrete in a bucket, except that an emergency on the ground may exist and the question of deviating from the CFRs an operator needs to follow might need resolution under 133. Many of these issues are fodder for discussions for which there will not be agreement until legal opinions are issued by the judiciary. Even FAA legal opinions can be found invalid in a court of law. That being said, I do believe there exist sufficient statutes for at least being sure of what is or isn’t a public operation. Certainly carrying firefighters back from an extinguished fire is part of the governmental mission. They could get a call in five minutes, they need to be ready and that means eating, sleeping, or being off duty. It is a red herring that is brought up frequently and in my opinion needs to go away.

  3. Unless the BLM declares the mission and aircraft as “public use” thus taking on all liability, the mission falls under civil.
    The DOI does do “public use” missions with 135 contractors, example being short-haul rescue, but that is only during the human external cargo (HEC) phase not the to and from the scene when transporting rescue personnel or victim.

  4. A government entity permanently operating their own aircraft as a public aircraft is one thing. A government entity contracting a civil “N registered” aircraft/operator, to operate under (temporary) PAO status is another matter entirely. I think any departure from a permanent (uncontracted) full time public operation, such as military or Cal Fire, will eventually come under the scrutiny of the FAA. I believe this will ultimately be reviewed by FAA legal, and disallowed, because PAOs only remain public aircraft if the FAA has no reason to determine otherwise. This situation raises many questions, and dozens more that have not yet been asked, that all fall under the jurisdiction of the FAA. HAI hit the nail on the head, “the determination…rests solely with the FAA”, not DOI/BLM legal as they would like it to be, which is why the Agency would occasionally consult with FAA, because it is not their determination to make.

  5. If DOI hires a restricted category Blackhawk to fly non qualified crew members, as a helitack crew would be, it becomes a public aircraft operation by definition. This assumes their letter of restriction prohibits people on board who are not required to operate the aircraft in the performance of its FAA approved missions. It is incumbent on the operator to file a public use notice and the hiring agency assumes airworthiness oversight once that is done. It is true that DOI and DOA both have required 135 certificates of the operators they use when a standard or transport catagory aircraft is hired to move people, they are not technically operating under their certificate if the DOI or DOA is dispatching them and assuming operational control. Iron 44 showed that to be true. I am not talking about the decision making authority of the PIC. That is always present. If they chose, both Federal agencies could drop the 135 cert. requirement provided all of their operations were in accordance with USC 49 40102 and 40125 and were PAOs. Not saying that would be a good idea.

  6. The FAA uses the guidance in their order 8900.1 Vol. 3 Chap 14 Section 1 when it comes to PAOs. The passage of public law 103-411 is what is left of Sen. Larry Pressler’s original 1994 bill. Part of what remains of that bill is the part of US Code 49, 40125 which made it so that Government OWNED aircraft cannot operate for hire or compensation OR carry other than crew and non qualified crewmembers and still remain within the bounds of public aircraft operations. There are nuances to these issues that are misquoted and misunderstood more frequently than should happen. The rank and file FAA personnel are not the subject matter experts on these issues. The FAA people who actually issue legal opinions and write policy are. I don’ t think the FAA really wants anything to do with public missions. I’d hate to see the FAA explain to all the agencies that do single engine aerial rescue that they need to go out and buy Category A helicopters or cease operation because that is what you need for a class D external load. I think the FAA has its hands more than full overseeing the existant civil aviation world and it would be a serious blow to public safety if they tried to regulate what the police and fire agencies do on a day to day basis; nor do I believe it would be wise to have commercial operators responsible for these things if it were even possible.

  7. What’s troubling about this story and left unreported is the massive US helicopter industry effort to suppress the use of newer better aircraft for fire operations. These companies think the government owes them a monopoly on firefighting and related operations. I hope BLM breaks through the BS and their contract spreads like wildfire.

  8. This battle of making sure restricted category aircraft are not used has been going on for years. Manufactures want to sell new aircraft which drives up the cost of fighting fires, etc. The ones who will make the decisions on this issue will be the lobbyist in the back room helping write policy. Everyone knows a well
    maintained aircraft, (standard or restricted), can do the same job and have the same safety factors involved. This is politics at work, and the public is paying for it. Its that simple.

  9. If the Blackhawk is good enough to move our men and women in combat around the world, why isn’t it safe enough to move our fire fighters. Safest helicopter the military has ever produced. It’s time to add the total of the blackhawks capabilities into our fire fight arsenal. This is a prime example of over and aggressive red tape that needs to be cut and thrown in the trash can. Way to go BLM.

    1. From my comments above I hope it is clear that I think the BLM is well within it’s legal bounds to execute the contract. I also think that the status of the UH-60 as an aircraft that can do this safely is beyond question. The President of the United States flies in one from time to time ( although the current one seems to prefer a 27 year old S76 for vanity reasons). That being said, companies that are certificating these and maintining them are not all equal and there may be some, in the future of course, who are not up to the task. Since it becomes the onus of the hiring agency to assure they are doing their maintenance properly and their pilots are properly trained and capable, it is more complicated than all agreeing it is an aircraft that may well turn out to be worthy of replacing the UH-1H. It also should go without saying that the Hawk is a more complex and expensive machine than a Huey. So far, it seems that the companies who have certificated the surplus aircraft and have been operating them for several years are doing OK. It will be interesting to see if the 47 operators are watching this. Smoke jumping out the ramp of a 47….awesome; but wait, why jump if you can land?

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