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FAA Airtanker Airworthiness Jurisdiction Briefing Paper

by Dan Casey |

The following is #2 of two papers by Dan Casey CJ-67. Both on the grounding of the airtankers.

This briefing focuses specifically on FAA’s airtanker airworthiness jurisdiction and builds on a recent prior general briefing paper regarding the recent, precipitous firefighting airtanker grounding and practical options.

The crux of the issue of FAA involvement in airtanker airworthiness is the “public use” exemption in Code of Federal Regulations (CFR). Some FAA headquarters staff recently stated to Congress, in response to calls for its more aggressive involvement in fire fighting aircraft inspections, that airtankers are of “public use” and thus the FAA cannot become involved. Some FAA staff has also stated to Congress that aircraft used as airtankers are not certified for such use by the FAA and thus airtankers must fall under the Public Use (technically Public Aircraft) category outside FAA jurisdiction. Both of these positions are incorrect and obfuscating.

To set the stage, the obvious “public use” or “public” aircraft are military owned and operated. In those instances neither airframe, pilots, operating missions nor aircraft maintenance is certified/inspected by the FAA. It is the separate responsibility of the military. Some other governmental agencies have also occasionally opted out of FAA jurisdiction, such as NOAA for some of its highly modified hurricane monitoring aircraft. Another example used to be local sheriffs departments, using surplus military helicopters. Today, however, many government agencies contract out aircraft from private operators. Those private operators’ aircraft are used for a variety of customers and purposes, thus the lower cost to a government agency in need of just seasonal aircraft or even of shorter duration. The private operators, in turn, have their aircraft and pilots certified by the FAA, as well as their maintenance program and work approved and inspected by the FAA. That is exactly the case with the airtanker fleet. Even in the case of those airtanker operators who use the planes solely for firefighting they have always been under the active oversight of the FAA.

FAA regulations define Public Aircraft as military and other government owned or leased aircraft “when not being used for a commercial purpose”. Commercial purpose is defined as ‘the transportation of persons or property for compensation or hire” (e.g. airtankers transporting government supplied fire retardant). A multicolor highlighted CFR Title 14, Part 1, Definitions is attached. If used for commercial purpose, the aircraft is not Public but rather Civil and falls under the jurisdiction of the FAA. It is of note also that subsection (1)(ii) defining governmental function (which includes “firefighting”) is a term applicable only to subsection (2) for “an aircraft owned or operated by the armed services”. Some people have incorrectly attempted to say any aircraft involved in the activities defined as governmental function were Public aircraft.

Additionally, each airtanker is, in fact, certified for such use by the FAA. When each plan is modified with retardant tanking the design is submitted for FAA review (including airframe structural) and approval. During install of the tanking, FAA inspects the work, and once installed an FAA engineer goes for a check ride on retardant runs, tracking with strain gages and the like. Only then is the airtanker issued a Supplemental Type Certificate (STC) which authorizes the aircraft for firefighting airtanker use. The certificate is supplemental in that it is in addition to the aircraft’s original certification for passenger and/or freight use. Some of these planes were recertified during retardant tank modifications so that the firefighting use was part of the basic certification, versus supplemental. In those instances, the retardant tanking system cannot be removed, as it an integral part of that aircraft certification. Supplemental certification allows for tank removal for other uses such as hauling freight or passengers. Several of the airtankers have voluntarily gone through FAA
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recertification for firefighting in the past few years. In short, the FAA has certified the airtanker fleet for firefighting use and knows exactly the design of each plane and its tanking system.

Additionally, many airtankers came out of military service during which they were Public aircraft outside FAA jurisdiction. When the private sector operators took on these planes they were reviewed by the FAA and certified as “Restricted Category Aircraft”. This limited their use to “special purpose operations” as defined in FAA regulations, including “Forest and wildlife conservation”, traditionally deemed to include firefighting. Now, all former military aircraft that were modified with a retardant tanking system also had to go through the FAA drill described above to obtain the required Supplemental Type Certificate for airtanker use.

In turn, all airtankers have always operated under FAA CFR Part 91, including its maintenance requirements and Part 137 for operational matters. Attached are excerpts of Part 91 showing linkage regarding maintenance. Interestingly, the FAA asserted this jurisdiction during 1991 in Federal Court in a case involving AerioUnion and a Federal Judge ruled for the FAA that the airtanker at issue was deemed to fall under Part 91, except for Part 137 operational guidelines during retardant drop runs. In short, FAA was asserting jurisdiction of airtankers.

The final seeming roadblock regarding FAA jurisdiction versus the public use exemption cop-out is regarding the above mentioned former military planes, “Restricted Category Aircraft” under the FAA. Under this category, one cannot fly over “congested areas” without several day advance notice to and approval by the FAA. Yet, several of the airtankers operators are based out of or have their planes stationed by the USFS at airbases in congested areas. It is difficult to anticipate fire dispatches to be able to comply with the FAA notice. Some in the industry and FAA have assumed the public use exemption. However, alternatively, the Forest Service has worked out a blanket exemption for it Airtankers in some instances and at least one of the largest airtanker operators obtained an FAA waiver for each of its planes (a copy place in the plane with its certification). In short, such a mission operations exemption is minor, manageable, and should not, and in fact does not, detract from FAA jurisdiction over airtanker airworthiness. Everyone in FAA field offices and the airtanker industry have understood this distinction for decades.

In the case of the airtanker industry, the FAA over the past two years has logged 1500 airworthiness reports (PTRS reports). Each regional FAA office receives, in addition to the PTRS reports volume, funding based on the number of planes and operators in its jurisdiction and the level of sophistication of each plane (“complexity”). Consolidated at the agency level, this is also what is used to justify to Congress FAA funding. The entire airtanker industry has long been under FAA oversight under Sections 91, 137 and 145, and the resulting PTRS actions, as well as operator and plane inventory (and related “complexity) have been included in the quantities for FAA funding.

Recently, FAA has been approached by Congress and some USDA and DOI personnel about stepping up inspections, including a specific inspection of the 30 plus airtanker airframes currently grounded prior to their remobilization (many have already been done at the request of operators) with a mandated higher frequency of ongoing scrutiny. Additionally, it has been proposed by National Interagency Fire Center management, in conjunction with its recent airworthiness study and program that all airtanker maintenance facilities come under FAA Part 145. This change requires hangers large enough to house aircraft during maintenance and inspection, a formal
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inspection process, a quality control system (including detailed parts use control), personnel training all via heightened FAA oversight.

Last week there was a rather extensive conference call involving FAA headquarters, several FAA regional offices, Sandia Labs and USFS airframe program management. The upshot is that FAA headquarters, hiding behind the “public use” smokescreen, proposed only they develop an inspection program paper by June 1 that USFS could then, with its staff, implement. This is an dead end proposal, as Tony Kern has already said USGS does not have the money for such inspections (although he has a 12 person inspection team as part of his aviation program, and is willing to pay much more in just one fire season for the increased rates for use of heavy lift helicopters versus, in many applications, more efficient multiengine tankers, to say nothing of the potential for larger fires absent nearly half the aerial retardant fleet). However, there is a general consensus that the FAA is already geared up with more knowledgeable staff, supported by in-depth professional expertise and the funding (remember they are generating reports and counting the airtanker reports they make, as well as the operators and their planes in their funding buildups). Regional FAA staffs have long worked with and inspected airtanker operators’ fleet and facilities.

The contextual crux is that two multi-engine airtanker frames failed in 2002 and one in 1994. All were being maintained by one company, Hawkins and Powers. Both the Blue Ribbon Panel report in December, 2002 and the NTSB report last April found sub par inspection by both FAA and USFS. Neither report recommended the permanent grounding of any airtankers. Both reports noted that airtankers are subject to more operational stress than most planes and thus merit more frequent and thorough airframe inspection (and related repair). Both the USFS and FAA are now ducking by, in the case of USFS, grounding the multi-engine airframes that failed in 2002 and now grounding the entire fleet, and, in the case of FAA, washing its hands of responsibility even though it has been involved all along, albeit less so than appropriate until last two years. When an Alaska Airlines Jack Screw failed, deemed the result of lax FAA and Alaska Airline inspection, some FAA and Alaska Airlines staff got fired, quality control systems were tightened up and all Jack Screws in the industry inspected prior to flying again. The passenger airline industry was not shut down. Now we have multi-engine airtankers whose wings have been opened up, inspected and approved by Sandia Labs structural specialists and FAA inspectors, with some even wired up for real time monitoring. They are good to go. It makes no sense for them to be sitting idle in the face of what is forecasted to be the most severe fire season.

Congress needs to direct FAA headquarters to stop dodging and step to the plate now. There is no time to dither, as airtanker operators and seasonal crew must cover their options, to say nothing that the fire season is upon us. Tony Kern knew of the NTSB report for over a year but waited until the last minute before a fire season to ground the large airtanker fleet. He had, in the interim, been trying to tone down NTSB’s original language that was more critical of his program responsibility area (airtanker inspection by USFS), but which did not recommend grounding. While Kerns orchestrated the last minute shutdown of the industry which was an overly simplistic move, the current 'noodling' by FAA headquarters staff could make it permanently damaging.