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S. HRG. 108–1032 

FIREFIGHTING AIRCRAFT SAFETY 

HEARING 

BEFORE THE

COMMITTEE ON COMMERCE, 

SCIENCE, AND TRANSPORTATION 

UNITED STATES SENATE 

ONE HUNDRED EIGHTH CONGRESS 

SECOND SESSION 

JUNE 2, 2004 

Printed for the use of the Committee on Commerce, Science, and Transportation 

( 

(II) 

SENATE COMMITTEE ON COMMERCE, SCIENCE, AND TRANSPORTATION 

ONE HUNDRED EIGHTH CONGRESS 

SECOND SESSION 

JOHN MCCAIN, Arizona, Chairman 

TED STEVENS, Alaska 

CONRAD BURNS, Montana 

TRENT LOTT, Mississippi 

KAY BAILEY HUTCHISON, Texas 

OLYMPIA J. SNOWE, Maine 

SAM BROWNBACK, Kansas 

GORDON H. SMITH, Oregon 

PETER G. FITZGERALD, Illinois 

JOHN ENSIGN, Nevada 

GEORGE ALLEN, Virginia 

JOHN E. SUNUNU, New Hampshire 

ERNEST F. HOLLINGS, South Carolina, 

Ranking 

DANIEL K. INOUYE, Hawaii 

JOHN D. ROCKEFELLER IV, West Virginia 

JOHN F. KERRY, Massachusetts 

JOHN B. BREAUX, Louisiana 

BYRON L. DORGAN, North Dakota 

RON WYDEN, Oregon 

BARBARA BOXER, California 

BILL NELSON, Florida 

MARIA CANTWELL, Washington 

FRANK R. LAUTENBERG, New Jersey 

JEANNE BUMPUS, Republican Staff Director and General Counsel 

ROBERT W. CHAMBERLIN, Republican Chief Counsel 

KEVIN D. KAYES, Democratic Staff Director and Chief Counsel 

GREGG ELIAS, Democratic General Counsel 

(III) 

C O N T E N T S 

Page 

Hearing held on June 2, 2004 ................................................................................. 1 

Statement of Senator Boxer .................................................................................... 4 

Prepared statement .......................................................................................... 5 

Statement of Senator Burns ................................................................................... 2 

Statement of Senator Cantwell .............................................................................. 58 

Statement of Senator McCain ................................................................................. 1 

Statement of Senator Smith ................................................................................... 6 

Prepared statement .......................................................................................... 6 

Statement of Senator Wyden .................................................................................. 3 

WITNESSES

Conners, Hon. Ellen Engleman, Chairman, National Transportation Safety 

Board ..................................................................................................................... 7 

Prepared statement .......................................................................................... 10 

Grantham, William H., President, International Air Response Inc. ................... 45 

Prepared statement .......................................................................................... 46 

Rey, Mark E., Under Secretary for Natural Resources and Environment, 

U.S. Department of Agriculture .......................................................................... 19 

Prepared statement .......................................................................................... 21 

Sabatini, Nicholas A., Associate Administrator, Regulation and Certification, 

Federal Aviation Administration ........................................................................ 14 

Prepared statement .......................................................................................... 17 

Timmons, Mark, President, Neptune Aviation Services, Missoula International Airport .................................................................................................... 24 

Statement from Douglas R. Herlihy, Air Safety Investigator, Herlihy 

& Leonard ...................................................................................................... 24 

Article dated May 16, 2004 entitled, ‘‘Large Air Tanker Airworthiness 

and Modernization’’ by Ronald F. Livingston ............................................. 33 

Prepared statement .......................................................................................... 40 

APPENDIX

Baucus, Hon. Max, U.S. Senator from Montana, prepared statement ................ 65 

Letter dated May 19, 2004 to Kristen Schloemer, President, Neptune Aviation 

Services from Kathleen A. Yodice, Yodice Associates ....................................... 67 

(1) 

FIREFIGHTING AIRCRAFT SAFETY 

WEDNESDAY, JUNE 2, 2004 

U.S. SENATE, COMMITTEE ON COMMERCE, SCIENCE, AND TRANSPORTATION, Washington, DC. 

The Committee met, pursuant to notice, at 9:31 a.m. in room SR– 

253, Russell Senate Office Building, Hon. John McCain, Chairman, 

presiding. 

OPENING STATEMENT OF HON. JOHN MCCAIN, 

U.S. SENATOR FROM ARIZONA 

The CHAIRMAN. Good morning. Today’s hearing is to address the 

recent decision by the Department of Interior and the Department 

of Agriculture to cancel contracts for all 33 of the large firefighting 

aircraft. That action has a substantial impact on many states in 

their efforts to fight forest fires. According to the Forest Service, 20 

percent of all retardant used to suppress wildfires was delivered by 

these 33 aircraft. 

We are told these cancellations were in response to a safety recommendation letter issued by the National Transportation Safety 

Board that reviewed three accidents involving firefighting aircraft. 

However, it should be pointed out that the key recommendation in 

the NTSB letter was not for the agencies to cancel contracts. It was 

that the contracting agency should further develop a maintenance 

and inspection program to ensure the safe operation of these 

planes. Rather than instituting such a safety system, however, the 

agencies involved simply canceled the contracts for the aircraft. 

Some Forest Service officials were quoted in the press as being, 

‘‘surprised,’’ that the NTSB concluded that they had responsibility 

for the safety of these planes. But there is no justifiable reason for 

such a reaction. This issue has been around for years, with reports 

by the General Accounting Office, the USDA Inspector General, 

and even a joint report by FAA and the Forest Service, all of which 

recommended improvements to the safety oversight program. 

Moreover, after two accidents in 2002 the Forest Service contracted with Sandia National Laboratories to develop a better safety oversight plan for these aircraft. Sandia visited every aircraft 

operator and developed a number of recommendations. Among the 

recommendations was a requirement that each of the 33 aircraft 

receive an in-depth inspection. The majority of these inspections 

were completed by Sandia and the FAA in 2003. 

The NTSB report briefly discussed the Sandia study as follows, 

quote: ‘‘The Safety Board is aware that the Forest Service has recently embarked on a multi-year plan to evaluate and improve the 

2 

airworthiness of its airtanker fleet, including modification of its 

maintenance program so that it more closely reflects the firefighting mission. The board supports this initiative and looks forward to learning more about the progress and results of this plan.’’ 

Again, the NTSB report did not recommend grounding these 

planes. In fact, according to the excerpt I just read, the NTSB supported the approach that was being recommended by Sandia. 

While the safe operation of these aircraft is of paramount importance, we cannot lose sight of the fact that lives on the ground are 

also at risk. We are already well into fire season in many states. 

The destruction that wildfires can cause is almost beyond comprehension. In Arizona, for example, the 85,000-acre Rodeo fire 

that occurred in 2002, which had already been declared the worst 

in Arizona’s history, merged with the Chattasky fire to form an inferno that destroyed 468,000 acres and more than 400 structures. 

A total of more than 630,000 acres in Arizona burned in that year 

alone. 

Therefore, during today’s hearing I hope we will receive testimony from the agencies on what actions are being taken to return 

the tanker aircraft safely to service. They clearly are a critical part 

of our Nation’s firefighting arsenal, especially when used for initial 

attacks on emerging fires, where the use of tankers buys time for 

fire crews on the ground, and when used to protect buildings. 

I look forward to hearing from our witnesses. 

Senator Burns. 

STATEMENT OF HON. CONRAD BURNS, 

U.S. SENATOR FROM MONTANA 

Senator BURNS. Thank you very much, Mr. Chairman, and thank 

you for holding this hearing. And thanks for inviting Mark 

Timmons, who is President of Neptune Aviation Services out of 

Missoula, Montana. We are happy to have him here. As you may 

know, Neptune has played a vital role in firefighting in my state 

and many others states in the West. It represents the very best of 

the companies contracted to fight fires and, as you can imagine, I 

am very concerned about the company’s well-being. 

My concerns also carry over to the entire West. We are about to 

head into another fire season, which is probably going to be another record. The drought conditions continue in the West and just 

institutional knowledge will tell us that we are going to need some 

aircraft to fight fires. 

I also believe that we have a situation that can be alleviated if 

we can get some good faith negotiation between the appropriate 

agencies and the companies involved. Both government and private 

entities have the same two goals: the aircraft need to be safe, they 

need to be properly maintained; we need resources to fight this 

year’s fires. 

I want to emphasize that wildfires still concern us in the West. 

Last year wildfires nationally burned 3.6 million acres and cost 

$750 million. Within that, in Montana we burned up 860,000 acres 

at a cost of $260 million. So we are concerned. Over the past 4 

years, nationally 22 million acres have burned. That is 34,000 

square miles, with a cost of over $4 billion. In Montana we account 

for 2.3 million acres. In a fire season alone we have 190 million 

3 

acres that is at risk due to insects, disease, and hazardous fuel accumulation. We still have those conditions even though we are 

working on them every day. 

Mr. Chairman, we have a drought condition in the Rocky Mountain states of my state and Idaho, Wyoming, Nevada, Colorado, 

Utah, New Mexico, and Arizona. They remain—those levels remain 

in severe or extreme fire danger. Even with the current rainfall in 

Montana, 70 percent of the subsoils are short of moisture. Many 

snowpack water equivalent sites are 50 percent of normal. The scenario is not good and I believe we need all the resources that we 

can gather and utilize them this summer. 

Finally, I hope that we can find some solutions today. In my 

meetings with the various agencies and others involved, I have 

found that there is a lot of finger-pointing and, quote, ‘‘My hands 

are tied’’ talk. I see a company like Neptune, who has civil airworthiness certificates in the FAA certified maintenance program, 

suffer from this decision. I do not know if we need a study that 

looks at each operator individually, but I would like to examine our 

short and long-term options. 

Flying any airplane is dangerous business, as you well know. Let 

us get the safety measures in place, acknowledge that there are 

those who already have those safety measures in hand and are 

doing them today. Good companies should not suffer from a blanket 

decision that did not take everyone into account individually. 

So thank you for holding this hearing, Mr. Chairman. We have 

got—I think we can work this whole thing out. I did not know the 

issue was going to get this big, to be honest with you. But there 

are so many grey areas in this thing, and everybody kind of—it is 

kind of a CYA thing, but we have to resolve it because we are in 

the fire season. 

Thank you again for having this hearing. 

The CHAIRMAN. Thank you. 

Senator Wyden. 

STATEMENT OF HON. RON WYDEN, 

U.S. SENATOR FROM OREGON 

Senator WYDEN. Thank you, Mr. Chairman. I too appreciate your 

holding the hearing. We have got four westerners here and it is a 

bipartisan quartet, and that is exactly what I think it is going to 

take in order to turn this problem around, because it is pretty obvious that we have a responsibility vacuum. It seems that everybody 

thought somebody else was in control of ensuring that these tankers were safe for wildfire fighting and at the end of the day it 

seems that nobody was really in charge. 

I am particularly interested in making sure that today it is clear 

that there is now a plan for dealing with this problem and that it 

is clear who is responsible for taking the lead in ensuring that the 

recommendations, the safety recommendations, from the National 

Transportation Safety Board, with whom I met yesterday, are actually followed. 

I think it is also important that we look at new ways to ensure 

that there is enough scientific information to design a safety program that takes account of the special stresses of firefighting. Certainly that means that there has got to be a process for obtaining 

4 

the data. One question that I want to ask is whether the installation of flight data recorders on aircraft in the firefighting fleet 

would be of some value in collecting data immediately during this 

fire season. 

So there are important issues to be dealt with and, with the four 

of us all coming from the West, it is pretty obvious that for the 

next few months we are going to see people all over the West grabbing their belongings, fleeing their communities. I think there is a 

responsibility to get this tanker policy right to ensure that we have 

the tools for wildfire fighting. I look forward to working with you, 

Mr. Chairman, and our colleagues to do that. 

The CHAIRMAN. Thank you. 

Senator Boxer. 

STATEMENT OF HON. BARBARA BOXER, 

U.S. SENATOR FROM CALIFORNIA 

Senator BOXER. Thanks very much, Mr. Chairman. You could not 

have picked a more important topic for my state right now, and I 

know all of us in the West are so worried about the conditions. 

I would ask unanimous consent that my full statement be placed 

in the record and I will summarize it as fast as I can. 

The CHAIRMAN. Without objection. 

Senator BOXER. We all have to just look back to the devastating 

wildfire season last year, when fire swept through Ventura, Los 

Angeles, San Bernadino, Riverside, and San Diego. It was a result 

of many conditions, including not enough rainfall and the bark beetle infestation that killed trees throughout the region and turned 

them into kindling. Twenty-four people died, 750,000 acres were 

burned, and 3,700 homes were lost, give or take a couple. 

One important tool for us then was the Forest Service contracting for aerial tankers. There were 23 used in those efforts, 

which were contracted from private companies. After three 

airtanker accidents, one in 1994 and two in 2002, the NTSB released recommendations that Department of Agriculture and Interior develop maintenance and inspection programs for firefighting 

aircraft. 

Now, rather than do that, the Department of Interior and the 

Forest Service simply canceled the contracts. So we may well lose 

this vital resource. Now, I wrote to Secretary Veneman and Interior Secretary Norton and requested information on what measures 

are being taken to ensure that airtankers will be available when 

needed in light of the decision to terminate their contract for 33 

large airtankers. Mr. Chairman, I have yet to receive a response. 

That is why I think this hearing is so critical. 

I just want to quote Fire Chief Bill Smith from San Bernadino 

after he read that the tankers were grounded. This is someone on 

the ground. This is not a political person. He said, ‘‘In reality, it 

is just pretty scary going into this type of a fire season without this 

fire resource. When they are available, when they can be used, they 

have a major effect on fighting.’’ And he went on to say the tankers 

were especially helpful in getting a handle on the fires in the early 

stages. 

In Victorville, we know flames were approaching, airtankers 

were used to get the fire under control. During fires last year, 

5 

David Weldon, San Diego County Sheriff’s helicopter pilot, hovered 

over the Cedar fire in Cleveland National Forest and was unable 

to do anything about it. He said if airtankers had been deployed 

the Cedar fire could have been put out. 

Now, we know we have used helicopters, but they are not a substitute. We are hoping that your alternative plan is not the one we 

think it is, which is to use California’s airtankers, because that is 

just not enough. We used all of those the last time. 

Agriculture Under Secretary Mark Rey stated at the Energy and 

Natural Resources Committee—Mr. Rey, you are here today—that 

‘‘Thousands of wildland fires are suppressed without the benefit of 

air support.’’ So I hope I am not reading into the fact that you do 

not think that these tankers work, because if that is your position 

that is contrary to my people on the ground who are dealing with 

this every single day. 

So, Mr. Chairman, thank you. I think maybe we need to look to 

the FAA on this whole matter. This hearing is so crucial. Again, 

I thank you for holding it. 

[The prepared statement of Senator Boxer follows:] 

PREPARED STATEMENT OF HON. BARBARA BOXER, U.S. SENATOR FROM CALIFORNIA

Mr. Chairman, thank you for holding this important hearing today. 

Last year, California had a devastating wildfire season. The fires extended 

through Ventura, Los Angeles, San Bernardino, Riverside, and San Diego counties. 

This was a result of many conditions, including not enough rainfall and bark beetle 

infestations that killed trees throughout the region and turned them into kindling. 

From these fires, 24 people were killed, 750,043 acres were burned, and 3,710 

homes were destroyed. 

One important tool in combating the fires was the Forest Service contracted aerial 

tankers. There were 23 used in the efforts, which were contracted from private companies. 

After three air tanker accidents—one in 1994 and two in 2002—the National 

Transportation Safety Board released recommendations that the Department of Agriculture and the Department of Interior develop maintenance and inspection programs for firefighting aircraft. 

Rather than doing so, the Forest Service just simply cancelled its contracts for air 

tankers. Therefore, we may well lose a vital resource. 

Right after the tankers were grounded, I wrote to the Agriculture Secretary Ann 

Veneman and Interior Secretary Gale Norton and requested information on what 

measures are being taken to ensure that air tankers will be available when needed, 

in light of the decision to terminate their contract for 33 large air tankers. 

After the news that the tankers were grounded, San Bernardino County’s Running Springs Fire Chief Bill Smith said in a local newspaper, ‘‘In reality, it’s just 

pretty scary, going into this type of a fire season . . . without this fire resource. 

When they are available, when they can be used, they do have a major effect on 

fighting.’’ 

Fire Chief Smith continued to say that the tankers were especially helpful in getting a handle on the fires in the early stages. 

During the wildfires last fall, tankers were used to control the fires. In Victorville, 

as the flames were approaching, air tankers were used to get the fire under control 

quickly. 

During the fires last year, David Weldon, San Diego County sheriff’s helicopter 

pilot hovered over the Cedar Fire in the Cleveland National Forest and was unable 

to do anything about it. He said that if air tankers had been deployed, the Cedar 

Fire could have been put out. 

In California, there are other resources to combat fires, such as 23 commercially 

operated fire-fighting helicopters—which includes three Sikorsky Skycranes—and 23 

S–2s, which are smaller air tankers belonging to the California Department of Forestry and Fire Protection. There are also military aircraft in California. 

In some cases, helicopters are a better choice to put out fires in the mountains, 

but we still need the tankers, especially for longer distances. 

6 

I understand that the Forest Service has come up with an alternative plan-which 

has the Forest Service relying on California’s air tankers. 

Agriculture Under Secretary Mark Rey stated at the Energy and Natural Resource Committee that ‘‘thousands of wildland fires are suppressed without the benefit of air support.’’ But, in the fires in California last year, we needed all the resources—including air tankers—to effectively fight them. 

I hope to hear from these witnesses today about solutions to this problem. 

First, should the tankers continue to be grounded because that was not the recommendation from the NTSB? 

Second, should the FAA be given the authority to set standards for the tankers, 

so they can continue to be used to fight fires? 

Third, if the tankers are too old to fly, then we need to appropriate more funds 

to replace the tankers or increase access to more military aircraft to ensure that 

all the resources are there to fight these fires. 

Last year’s fires were devastating to my state of California. This year, we have 

already had large wildfires. The major fire season is only a few months away. We 

need to act now to protect our people and property from these fires. 

Thank you, Mr. Chairman. 

The CHAIRMAN. Thank you. 

Senator Smith. 

STATEMENT OF HON. GORDON H. SMITH, 

U.S. SENATOR FROM OREGON 

Senator SMITH. Thank you, Mr. Chairman. Thank you for holding this hearing. I will submit my statement for the record, Mr. 

Chairman. 

The CHAIRMAN. Without objection. 

Senator SMITH. But I thank you as well for holding this hearing. 

It is, I think as Senator Boxer said, a very important hearing, even 

a life and death hearing, for many of our communities. I have a 

number of questions I hope I am able to stay long enough to ask 

Secretary Rey about the needs of State land, private land that adjoins forest land, and the need of the Oregon Department of Forestry to utilize the tankers that they have hired in the event that 

these are in fact grounded, and it is just too late sometimes to stop 

a fire that is roaring when it comes to private land. The truth is 

it does not know the border, and sometimes the bureaucracy involved really can be damaging, in this case downright dangerous. 

Thank you, Mr. Chairman. 

[The prepared statement of Senator Smith follows:] 

PREPARED STATEMENT OF HON. GORDON H. SMITH, U.S. SENATOR FROM OREGON

I want to thank Senator McCain for holding today’s hearing which affects both 

of our states considerably. In fact, 15,000 acres have already burned in Arizona this 

season. I expect that number to be far worse in the next few months. 

Notwithstanding my concerns about how we got into this 11th hour crisis, I have 

several issues that must be addressed on behalf of Oregonians today. I fear the 

image of airtankers grounded on the Redmond airfield while the Deschutes National 

Forest and adjacent homes needlessly burn all around it. 

The state of Oregon and the Oregon Department of Forestry must be given the 

ability to protect homes and property within their jurisdiction. That will be rather 

difficult if the state has to wait for a wildfire to reach someone’s back yard before 

attacking 11. At the very least, there should be a clear process for determining 

when it is appropriate to use State-contracted resources. 

I would call on all Federal agencies represented here today to continue working 

collaboratively to create a certification process for the rest of the firefighting fleet. 

Otherwise, bureaucratic paperwork may just further fan the flames of an already 

uncontrollable wildfire. 

7 

The CHAIRMAN. Well, thank you, Senator Smith. I just want to 

mention again that we all know, Senator Boxer mentioned, all of 

us in the West, we all know what is going to happen in the next 

few months. And here we are at a time where there is no such 

thing as any act of God being inevitable, but the chances of a devastating forest fire, plural, is extremely good, given the drought 

conditions that exist. 

At the same time, an extremely valuable asset has now been 

taken from the inventory, even though the National Transportation 

Safety Board did not make such recommendation, as we will hear. 

There was an interesting letter in the Arizona Republic from Ms. 

Kathleen Clark and Dale Bosworth—Kathleen Clark is the head of 

BLM and Mr. Bosworth of Agriculture, the Forest Service—who 

say ‘‘That is why we terminated the contract pending a determination that they can be operated safely. The National Transportation 

Safety Board has determined that the tankers have potential structural problems that might lead to a catastrophe if we send them 

to fight a fire. The NTSB has further determined there is no means 

to immediately ensure the airworthiness of these aircraft.’’ 

I think we are going to hear testimony today that is not true. It 

is remarkable that in my home town newspaper the head of BLM 

and the head of the Forest Service would make a statement that 

is at best disingenuous and at worst absolutely false. 

I happen to have an aviation background and I do not have a 

firefighting background, but I do know that the NTSB is the ultimate arbiter in this kind of situation with regards to aviation safety, not the Department of Agriculture, not the Bureau of Land 

Management, and certainly not the Forest Service. That is why I 

was motivated to having this hearing today and that is why I think 

it is important that we have the witness from the National Transportation Safety Board here this morning. 

So our panel is: the Honorable Ellen Engleman Conners, Chairman of the National Transportation Safety Board—we thank you 

for coming today—Mr. Nicholas Sabatini, Associate Administrator 

for Regulation and Certification of the FAA; Mr. Mark Rey, Under 

Secretary for Natural Resources and Environment, U.S. Department of Agriculture; Mr. Mark Timmons, President of Neptune 

Aviation Services, Missoula International Airport; and Mr. William 

Grantham, President, International Air Response Incorporated, 

Chandler, Arizona. 

We will begin with—I want to thank all the witnesses for coming 

today. We will begin with Ms. Engleman. 

STATEMENT OF HON. ELLEN ENGLEMAN CONNERS, 

CHAIRMAN, NATIONAL TRANSPORTATION SAFETY BOARD 

Ms. CONNERS. Good morning, Chairman, members of the Committee. My name is Ellen Engleman Conners and it is truly my 

privilege to serve as the Chairman of the National Transportation 

Safety Board, representing the board’s 429 dedicated professionals. 

Thank you for the invitation to testify before you today regarding 

the board’s recent safety recommendations that resulted from three 

separate accidents involving firefighting airtankers. 

Chairman we have submitted our written testimony, if we could 

have that as part of the record, and I will summarize it. 

8 

The CHAIRMAN. All the written testimony will be made part of 

the record. 

Ms. CONNERS. Thank you, sir. 

Please let me begin by acknowledging the tragic loss of lives in 

the accidents being discussed today. Pilots and crews from the 

states of California, Montana, and Nevada were killed during these 

three accidents. It is our hope that out of these tragedies and 

through the NTSB independent safety investigation and recommendations that good will come. 

Our investigators and staff spent more than 2,500 man-hours investigating these three tanker accidents. The accident aircraft were 

surplus military aircraft built after World War II. From the beginning of the investigation, it was understood that these aircraft were 

investigated in the category of public, as distinguished from civil 

operations and therefore were not required by the Federal Aviation 

Administration to comply with many of the FAA regulations codified in 14 CFR. 

For example, regulations pertaining to aircraft certification and 

maintenance and flight crew training and licensing are not applicable to public operations. Additionally, aircraft used in public operations are not required to be equipped with flight data or cockpit 

voice recorders. Therefore, it was the opinion of the board that the 

operator, in this case the U.S. Department of Agriculture, Forest 

Service, was primarily responsible for their safe operation. 

As in the case with all of our investigations, open discussions 

were held with the parties involved. The Safety Board worked 

closely with the aviation personnel from USDA-Forest Service, Department of Interior, and FAA from early stages of the Walker and 

Estes Park investigations through the final release of the accident 

report and the Safety Board’s recommendation letter. 

Early in the investigation, within the first month or so, it became 

evident that there were serious issues concerning the airworthiness 

of these airplanes and the oversight to ensure their safe operation. 

As the NTSB drafted its recommendations, we held biweekly meetings and teleconferences with the FAA and the Forest Service to 

share our concerns and our proposed recommendations with them. 

As per our normal investigation procedures, the NTSB did not inspect all aircraft in the firefighting fleet, nor did we investigate all 

companies involved in aircraft firefighting. The safety issues identified in the accidents were potentially present in all large airtanker 

operations. Thus, the NTSB safety recommendations were applicable to the entire large airtanker industry. 

An example of safety recommendations being applicable to the 

broader industry was shown also in 1996 with the TWA Flight 800 

accident. The airplane exploded off the coast of Long Island, killing 

230 people. The NTSB did not investigate all manufacturers of 

large aircraft, but the recommendation to inert the center wing fuel 

tank was aimed at all transport-category aircraft. 

Our recommendations regarding firefighting aircraft were specific. In order to ensure that there is robust oversight and inspection infrastructure that will ensure the safe operation of aircraft 

used in firefighting operations, the NTSB recommended that the 

USDA and the Department of Interior develop maintenance and inspection programs for aircraft used in firefighting operations that 

9 

take into account five specific factors, require that the aircraft in 

firefighting operations be maintained in accordance with those programs, and hire appropriate personnel to conduct oversight of those 

programs. 

In addition, because some of these public use aircraft might be 

used for civil use at other times, we recommended that the FAA 

require the same maintenance and inspection programs. We also 

recommended that the FAA serve as the focal point for collecting 

continuing airworthiness data about surplus military aircraft from 

the original equipment manufacturer or the military in order to ensure that—in order to share that with subsequent owners and operators. 

Our recommendations for safety apply to any airframe, regardless of age, used in firefighting. Whether an old airplane or a new 

airplane or an airplane still being designed, the recommendation to 

have a maintenance and inspection program is the same. 

We note that in March 2004, the industry’s Consortium for Aerial Firefighting Evolution released the Strategic Aerial Firefighting 

Excellence report. The conclusion contains a parallel finding to the 

Safety Board’s finding. The safety report concluded that the local 

load environment in which the current and future aerial firefighting fleet remains largely unknown; until this environment is 

adequately characterized, there is an unknown level of risk that 

unanticipated in-flight structural failures may occur in both the 

current and future operational fleets. 

The industry’s SAFE report also concludes: ‘‘There is a need to 

implement structural health monitoring programs on a large number, if not all, of the current airtankers. Data obtained from these 

programs will define criteria against which the suitability of future 

aerial firefighting aircraft can be evaluated prior to conversion and 

ensure the ongoing safe and economic management of the current 

fleet until such time as it can be replaced.’’ 

The Safety Board is also aware that the USDA began work with 

the Sandia Laboratory to develop a maintenance and inspection 

program for firefighting aircraft. We noted in our safety recommendation letter that the Safety Board is aware that the Forest 

Service has recently embarked on a multi-year plan to evaluate 

and improve the airworthiness of its tanker fleet, including modification of its maintenance program so that it more closely reflects 

the firefighting mission. The board supports this initiative and 

looks forward to learning more about the progress and results of 

this plan. 

In addition, the Canadians have developed an extensive program 

to conduct appropriate inspection of these aircraft. However, neither the nascent USDA nor the mature Canadian programs are 

currently in place in the United States. 

The National Transportation Safety Board recognizes that aerial 

firefighting is an intrinsically high-risk operation. We believe, however, that the risk of an in-flight structural failure should not be 

considered an unavoidable risk of firefighting. The increased risk 

of fatigue cracking and accelerated crack propagation can and 

should be addressed through proper maintenance programs. 

10 

Thank you for the opportunity to testify today on these important safety matters. I will be happy to answer any questions you 

have. 

[The prepared statement of Ms. Conners follows:] 

PREPARED STATEMENT OF HON. ELLEN ENGLEMAN CONNERS, CHAIRMAN, NATIONAL TRANSPORTATION SAFETY BOARD

Good morning, Chairman McCain, Senator Hollings, and Members of the Committee. My name is Ellen Engleman Conners, and it is my privilege to serve as the 

Chairman of the National Transportation Safety Board (NTSB), representing the 

Board’s 429 dedicated professionals. Thank you for your invitation to testify before 

you today regarding the Board’s recent safety recommendations that resulted from 

three separate accidents involving firefighting air tankers. Please let me begin by 

acknowledging the tragic loss of life in the accidents being discussed today. Pilots 

and crews from the states of California, Montana and Nevada were killed during 

these three accidents. It is our hope that out of these tragedies and through the 

NTSB independent safety investigations, good will come. 

Our investigators and staff spent more than 2,500 man-hours on these investigations. These investigations were conducted by our regional aviation investigators, 

with assistance of specialists from our headquarters in Washington, D.C. Over 2,000 

aviation incidents and accidents (2,059 in 2003) are conducted every year by the 

NTSB’s approximately 35 regional investigators. 

As you know, the Safety Board is an independent Federal agency and not a regulatory or enforcement agency. We are charged by Congress with investigating every 

civil aviation accident in the United States and significant accidents in the other 

modes of transportation—railroad, highway, marine and pipeline—and issuing safety recommendations aimed at preventing future accidents. NTSB reports are based 

on facts, science, and data—not supposition, guesswork, or desire. And, as you are 

also aware, the NTSB is not required to perform cost-benefit analysis of its safety 

recommendations. 

Since its inception in 1967, the Safety Board has investigated more than 124,000 

aviation accidents and over 10,000 surface transportation accidents. In so doing, it 

has become one of the world’s premier accident investigation agencies. On call 24 

hours a day, 365 days a year, NTSB investigators travel throughout the country and 

to every corner of the world to investigate significant accidents and develop factual 

records and safety recommendations. 

Our final reports are a Safety Board product, not the opinion of any one individual at the NTSB. Our professional staff investigates the accidents and then provides a draft report to the five Presidentially appointed Members of the Board, who 

then review and vote on the report, the probable cause, and the safety recommendations. 

The Safety Board has issued more than 12,000 recommendations in all transportation modes. In 1990, the NTSB began highlighting some issues on a Most Wanted 

list of safety improvements. Although the NTSB does not regulate transportation 

equipment, personnel or operations nor do we initiate enforcement actions, our reputation for impartiality and thoroughness has enabled the Board to achieve such 

success in shaping transportation safety improvements that more than 82 percent 

of its recommendations have been adopted by those in a position to effect change. 

Many safety features currently incorporated into airplanes, automobiles, trains, 

pipelines, and marine vessels had their genesis in NTSB recommendations. 

I want to briefly describe the Board’s investigations of the three firefighting air 

tanker accidents and the recommendations that resulted from those investigations. 

The first accident occurred August 13, 1994, in Pearblossom, California, and three 

people were killed. While in level flight, the airplane’s right wing separated. The 

Board’s original probable cause was released in 1995. Based on evidence discovered 

in the 2002 investigation of a C–130 accident at Walker, California accident, the 

NTSB went back to the site of the Pearblossom accident to search for additional 

pieces of metal to examine. We took those pieces to our laboratory in Washington, 

D.C. Our laboratory examination of right side, center-wing fragments revealed two 

fatigue cracks that propagated to overstress fractures. One of the cracks was in the 

underside wing skin below a doubler, and the other was in the doubler itself. As 

a result, the Safety Board issued a revised probable cause in 2004. 

The airplane had been retired from military service in 1986. At the time of the 

accident, the airplane had a total of 20,289 flight hours, 19,612 of which were acquired during its military service. Of note, the wing failure occurred after the plane 

accumulated only had 677 hours out of military service. The inspection and mainteVerDate Nov 24 2008 08:13 Jan 03, 2018 Jkt 075679 PO 00000 Frm 00014 Fmt 6633 Sfmt 6621 S:\GPO\DOCS\27958.TXT JACKIE
11 

nance programs used by the operator, which were based on military standards, included general visual inspections for cracks, but did not include enhanced or focused 

inspections of highly stressed areas, such as the wing sections, where the fatigue 

cracks that led to the accident were located. The operator did not possess the engineering expertise necessary to conduct studies and engineering analysis to define 

the stresses associated with the firefighting operating environment and to predict 

the effects of those stresses on the operational life of its airplanes. 

The second accident occurred on June 17, 2002, in Walker, California, also killing 

three people. The airplane was making a fire retardant drop over a mountain drainage valley when the wings separated from the fuselage. Our metallurgical examination of the center wing box lower skin revealed a 12-inch-long fatigue crack on the 

lower surface of the right wing beneath the forward doubler. The portion of the wing 

skin containing the fatigue crack was covered by a manufacturer-installed doubler, 

which hid the crack from view and, therefore, prevented detection of the crack during a visual inspection of the exterior of the airplane. 

The airplane retired from military service in 1978. At that time, it had accumulated about 19,545 hours in service. Additionally, the Air Force had replaced the 

wing center section shortly before it left military service. At the time of the accident, 

the aircraft had accumulated 21,863 hours in service. It is important to point out 

that the new wing center section failed after just more than 2,300 hours in firefighting service. 

The third accident occurred on July 18, 2002, in Estes Park, Colorado, and 

claimed two lives. The airplane was maneuvering to deliver fire retardant when its 

left wing separated and the airplane crashed into mountainous terrain. Our examination revealed extensive areas of preexisting fatigue in the left wing’s forward 

spar lower spar cap, the adjacent spar web, and the adjacent area of the lower wing 

skin. The portion of the wing containing the fatigue crack was obscured by the retardant tanks and was not detectable during an exterior visual inspections 

The airplane was in military service until 1956. It was not designed to be operated as a firefighting airplane. However, in 1958, the airplane was converted to civilian use as an air tanker and served in that capacity until the time of the accident. The investigation revealed that the owner developed service and inspection 

procedures for the air tanker; however, those the procedures did not adequately describe where and how to inspect for critical fatigue cracks. The procedures were 

based on U.S. Navy PB4Y–2 airplane structural repair manuals that had not been 

revised since 1948. 

Many of these large air tankers are surplus military aircraft and some were built 

shortly after World War II. From the beginning of the investigations, it was understood that these aircraft were investigated in the category of public (as distinguished from civil) operations, and therefore, were not required by the Federal Aviation Administration (FAA) to comply with many of the Federal aviation regulations 

codified in 14 Code of Federal Regulations (CFR). For example, regulations pertaining to aircraft certification and maintenance and flight crew training and licensing are not applicable to public operations. Additionally, aircraft used in public operations are not required to be equipped with flight data or cockpit voice recorders. 

Therefore, the operator, in this case the U.S. Department of Agriculture (USDA) 

Forest Service, is primarily responsible for their safe operation. 

The aircraft have been issued restricted-category type and airworthiness certificates from the FAA. However, we must be clear as to what this means. The requirements for issuance of a restricted-category type certificate to surplus military aircraft are contained in 14 CFR 21.25(a) (2) and state, in part: 

(a) An applicant is entitled to a type certificate for an aircraft in the restricted 

category for special purpose operations if he shows . . . that no feature or characteristic of the aircraft makes it unsafe when it is operated under the limitations prescribed for its intended use, and that the aircraft—— 

(2) Is of a type that has been manufactured in accordance with the requirements of and accepted for use by, an Armed Force of the United States and has 

been later modified for a special purpose. 

According to the FAA in a letter dated November 15, 2002, from Ronald T. 

Wojnar, Deputy Director, FAA Aircraft Certification Service, to Tony Kern, USDA 

Forest Service National Aviation Officer (attached for the record): 

FAA-restricted type design certification of these surplus military aircraft is primarily based on military records and service history, unlike certification of normal 

or transport-category aircraft, which must be certificated to applicable FAA airworthiness standards (e.g., 14 CFR Part 23 or Part 25). 

12 

Because these aircraft do not meet standard-category airworthiness standards, 

they have numerous restrictions placed on them. These restrictions are implemented 

through the operating limitations attached to the airworthiness certificate, as well 

as the operating limitations in 14 CFR. Significantly, the operating restrictions contained in restricted-category airworthiness and type certificates of surplus military 

aircraft typically do not include any enhanced maintenance requirements beyond 

those that applied when the aircraft left military service. 

As is the case with all of our investigations, open discussions were held with the 

parties involved. The Safety Board worked closely with the aviation personnel from 

the Forest Service (FS), DOI, Interior and the FAA from the early stages of the 

Walker and Estes Park investigations through the final release of the accident report and the Safety Board’s recommendation letter. Early in the investigation (within the first month or so) it became evident that there were serious issues concerning 

the airworthiness of these airplanes and the oversight to ensure their safe operation. The Safety Board staff was well aware that corrective actions needed to be 

initiated immediately. As the NTSB drafted its recommendations, we held biweekly 

meetings and teleconferences with the FAA and the FS to share our concerns and 

our proposed recommendations with them. All told, the Safety Board has spent hundreds of hours and participated in dozens of meetings or telephone calls with members of FAA, FS, and DOI on this topic. 

The Safety Board also met with the Blue Ribbon committee several times during 

the course of its investigation. The Commission’s report parallels the NTSB’s safety 

recommendations. The Safety Board also briefed the General Services Administration’s (GSA) Interagency Committee for Aviation Policy (ICAP), which advises GSA 

on the technical and operational issues related to aviation management, to ensure 

that the issues and concerns we had would be used to foster safe, effective, and efficient aviation in other U.S. government agencies. The Safely Board is a member of 

ICAP. 

The Safety Board’s investigation of these three specific accidents focused on airworthiness and maintenance issues associated with the large air tankers. However, 

because all aircraft engaged in firefighting operations are exposed to the same harsh 

environment and increased stresses and are likely operating outside the manufacturers’ original design intent, the NTSB report noted that the deficiencies identified 

may well apply to all aircraft in the firefighting fleet. Frequent and aggressive lowlevel maneuvers with high acceleration loads and high levels of atmospheric turbulence are an inherent part of firefighting operations. A 1974 report by the National 

Aeronautics and Space Administration (NASA) noted that ‘‘. . . Because the maneuver loading, in both the repeated and high magnitude applications, is so severe relative to the design loads, shortening of the structural life of the aircraft should be 

expected.’’ Similar findings were included in a November 1996 Supplemental Structural Inspection Document issued to Conair, a Canadian manufacturer and operator 

of firefighting aircraft. 

We did not inspect all aircraft in the firefighting fleet, nor did we investigate all 

companies involved in aircraft firefighting. However, the safety issues identified in 

these investigations are present in some, if not all, other large air tanker operations. 

Thus, the NTSB safety recommendations that result from those accidents are applicable to the entire large air tanker industry. In order to meet the intent of these 

recommendations, that is assessing the structural integrity of the tankers, the owners and operators must have in place the appropriate programs and personnel. It 

is for the operator, in this case, the U.S. Forest Service, to determine that the recommendations have been accomplished. An example of safety recommendations 

being applicable to the broader industry is shown in the 1996 TWA flight 800 accident. The airplane exploded off the coast of Long Island, killing 230 people. The 

NTSB did not investigate all manufacturers of large aircraft, but the recommendation to inert the center wing fuel tank was aimed at all transport category aircraft. 

In the NTSB air tanker investigation, the Board found that no effective mechanism currently exists to ensure the continuing airworthiness of firefighting aircraft. 

Specifically, the maintenance and inspection programs being used do not adequately 

account for the increased safety risks to which these aircraft are being exposed as 

a result of their advanced age and the severe stresses of the firefighting operating 

environment. In the case here of the air tankers, the NTSB did not need to look 

at more operators/aircraft. Our report concluded that there are no adequate standards and oversight programs for heavy firefighting aircraft either in the FAA or the 

DOI. No one appears to dispute that finding. Indeed, responsible private operators 

concur in the judgment that all firefighting aircraft should be maintained in accordance with specialized procedures that take into account the age and operating environment of the aircraft. What the NTSB has recommended is that the Federal 

standards for this need to be established and once again responsible operators are 

13 

awaiting the establishment of such standards premised on an in-flight monitoring 

program—the heart of such an inspection program. 

The primary purpose of aircraft maintenance programs is to ensure the aircraft 

is airworthy, that is, in safe condition and properly maintained for its intended operation. Historically, service experience has demonstrated that it is essential to have 

regularly updated knowledge concerning the structural integrity of the airframe. In 

the case of air tankers, the structural integrity of the airplanes is of particular concern, because factors such as fatigue and corrosion tend to manifest themselves over 

time as the aircraft age. Accordingly, owners and operators must be aware that because the airplane is being used in a manner significantly different from its originally intended mission profile, they must maintain and inspect these aircraft in accordance with a program that is continuously evaluated and updated based on technical and engineering support and the manufacturer’s knowledge of in-service experience. 

However, for many aircraft used in firefighting operations, very little, if any, ongoing technical and engineering support is available because either the manufacturer 

no longer exists or does not support the airplane, or the military no longer operates 

that type of aircraft. Further, the current operators of these firefighting aircraft are 

typically unable to structure a maintenance program that accounts for the new mission profile because: (1) the airplane’s design and service life information (such as 

service reports and maintenance data) is not readily available; (2) the operator lacks 

the necessary engineering expertise; (3) the magnitude of maneuver loading and 

level of turbulence in the firefighting environment is not defined; and (4) the effects 

of this operating environment on the service life of the aircraft structure are undefined. 

Currently, there is not sufficient data to make engineering decisions or conduct 

engineering studies or modeling. A minimum amount of loads data is just becoming 

available. In some cases there may be no inspection techniques that can identify 

some of the hidden damage that we have found on the airplanes. We are not aware 

of any current Original Engineering Manufacture (OEM) support for these airplanes 

that is sophisticated enough to be effective. We know some of the history of some 

of these planes because they came from the military, but we do not have the type 

of structural load history that would define the structural health when they entered 

firefighting service. We certainly do not know the history while in firefighting service. We need to be able to predict the problem, preclude the problem, and short of 

that, find the problem before there is a structural failure. These require more sophistication than we believe is being applied. 

In order to ensure that there is a robust oversight and inspection infrastructure 

that will ensure the safe operation of aircraft used in firefighting operations, the 

NTSB recommended that the USDA and the Department of Interior (DOI) develop 

maintenance and inspection programs for aircraft used in firefighting operations 

that take into account five specific factors require that aircraft in firefighting operations be maintained in accordance with those programs; and hire appropriate personnel to conduct oversight of those programs. In addition, because some of these 

public use aircraft might be used for civil use at other times, we recommended that 

the FAA require the same maintenance and inspection programs. We also recommended that the FAA serve as the focal point for collecting continuing airworthiness data about surplus military aircraft from the OEM or military in order to share 

that with subsequent owners and operators. 

Our recommendations apply to any airframe, regardless of age. Whether an old 

airplane, a new airplane, or an airplane still being designed, the recommendation 

to have a maintenance and inspection program is the same. However, we are not 

locked into a rigid format for a solution. There may be many processes that can be 

used to prevent or predict these types of accidents. They can take on many forms, 

and we are happy to see any that work. 

We noticed that in March 2004, the industry’s Consortium for Aerial Firefighting 

Evolution (CAFE ́ ) released the Strategic Aerial Firefighting Excellence (SAFE) report. The conclusion contains the parallel to the Safety Board’s finding. The report 

‘‘focuses on mapping a course that will ensure the ongoing safe and economic utilization of both the current and future aerial firefighting fleets for many years to come.’’ 

However, the CAFE also concludes that ‘‘the load environment in which the current 

and future aerial firefighting fleet remains largely unknown. Until this environment 

is adequately characterized, there is an unknown level of risk that unanticipated 

in-flight structural failures may occur in both the current and future operational 

fleets.’’ 

Furthermore, the industry SAFE report states: ‘‘Many of the aircraft operating in 

the aerial firefighting role are not well supported by their Original Equipment Manufacturers (OEMs). This is often a result of the OEMs no longer being in business 

14 

or wishing to avoid economic/liability issues associated with operating a limited 

number of aircraft in a severe role, for which they were not originally designed. For 

this reason, every attempt should be made to procure the original design/modification engineering data for future aerial firefighting aircraft.’’ 

‘‘The original design of most of these aircraft assumed that their primary mode 

of operation would be take-off, climb to altitude (typically from 14,000–30,000 ft 

ASL), cruise at altitude, descend and land. Consequently, their continuous use in 

a low-level environment (defined as less than 2,500 ft AGL) during aerial firefighting operations is quite different from the passenger/cargo role for which they 

were primarily designed. As has been documented on many occasions, aircraft performing any role in a low-level environment are subject to a far more severe loads 

environment as a result of a significant increase in frequency and, on occasion magnitude, of the gust and maneuvers load spectra they experience. In the case of aerial 

firefighting aircraft, the severity of the low-level environment is further exacerbated 

by the increased turbulence that is frequently encountered near the fire. Continued 

operation in this type of environment can result in either an increased frequency 

of known structural problems and/or the occurrence of structural problems that have 

not been previously exhibited by similar aircraft operating in their original passenger/cargo design role. In past years, much emphasis has been placed on the high 

g-loads that have been recorded by aircraft operating in the aerial firefighting role. 

While the occurrence of such loads is obviously of some concern, there is a growing 

body of evidence to suggest that they are not the primary cause of the operational 

failures. Rather, the majority of the damage sustained by aerial firefighting aircraft 

structures appears to be attributable to cumulative effect of the large number of cyclic (fatigue) repetitions of relatively low-level (magnitude) loads to which the aircraft are subjected.’’ 

The industry’s SAFE report concludes: 

‘‘There is a need to implement structural health monitoring programs on a large 

number, if not all, of the current air tankers. Data obtained from these programs will define criteria against which the suitability of future aerial firefighting aircraft can be evaluated prior to conversion and ensure the ongoing 

safe and economic management of the current fleet until such times as it can 

be replaced. While some steps were taken to address this issue during the 2003 

fire season, to date only funding to support the limited FAA program has been 

assigned for the 2004 fire season. As far as CAFE is aware, the USDA/FS has 

so far allocated no funding to support structural health monitoring programs 

during the upcoming 2004 and subsequent fire seasons.’’ 

The Safety Board is also aware that the USDA began work with the Sandia Laboratory to develop a maintenance and inspection program for firefighting aircraft. 

In addition, the Canadians have developed an extensive program to conduct appropriate inspections of these aircraft. However, neither the nascent USDA nor the mature Canadian programs are currently in place at in the United States. 

The National Transportation Safety Board recognizes that aerial firefighting is an 

intrinsically high-risk operation. However, the risk of in-flight structural failure 

should not be considered an unavoidable risk of firefighting. This increased risk of 

fatigue cracking and accelerated crack propagation can and should be addressed 

through proper maintenance programs. 

Again, thank you for the opportunity to testify today on these important safety 

matters. I will be happy to answer any questions that you might have. 

The CHAIRMAN. Thank you very much. 

Mr. Sabatini, I welcome you and I amend my previous remarks. 

Both the FAA and the NTSB are the people we rely on to give us 

the information that we need concerning aviation safety, and I 

apologize for leaving you out. Mr. Sabatini, welcome. 

STATEMENT OF NICHOLAS A. SABATINI, ASSOCIATE 

ADMINISTRATOR, REGULATION AND CERTIFICATION, 

FEDERAL AVIATION ADMINISTRATION 

Mr. SABATINI. Thank you. 

Good morning, Mr. Chairman, members of the Committee. 

Senator BURNS. You might want to pull that microphone up a little bit closer. Thank you. 

15 

Mr. SABATINI. You are welcome. 

My name is Nick Sabatini. I am the Associate Administrator for 

Regulation and Certification in the FAA. I am pleased to appear 

before you today to discuss the respective roles that the FAA, the 

Forest Service, and the Department of the Interior play in the safety oversight of Forest Service and DOI firefighting operations. 

Recent decisions by the Forest Service and DOI to terminate contracts with companies that operate airtankers followed NTSB recommendations that arose out of investigations of fatal air tanker 

accidents. Because the decisions to terminate the contracts were 

safety-related, a clarification as to why the Forest Service and DOI 

and not the FAA are making safety determinations with respect to 

these aircraft is appropriate. 

The heart of this issue is the safety and airworthiness of aircraft, 

and so I understand why people believe that only the FAA should 

make such determinations. We are the premier aviation safety 

oversight agency in the world and I am proud of our record and 

reputation. But from the very beginning and at all times during 

the existence of the FAA, there has been a clear statutory distinction between civil and public aircraft operations. FAA has regulatory and safety oversight authority over civil aircraft operations. 

Public aircraft operations are conducted by or on behalf of many 

different government agencies and departments, both State and 

Federal. 

By statute, authority for the safety oversight of these operations 

belongs to the agency or department responsible for the operation. 

While FAA can and does provide technical support to assist other 

agencies with their safety oversight responsibilities, the law is 

quite clear that FAA cannot direct or compel another agency to impose specific safety requirements or force them to meet existing 

FAA requirements for the civil aircraft fleet. 

Over the years, Congress has narrowed and clarified the definition of ‘‘public aircraft.’’ Today it is the type of operation that defines a public aircraft. Public aircraft operations are limited to only 

those operations that are inherently government in nature, such as 

firefighting, search and rescue, prisoner transport, and military operations, to name a few. 

These government functions oftentimes involve dangerous missions and may require aircraft to be operated in a manner that is 

beyond what the FAA may consider to be safe for civil operations. 

It is one reason FAA regulations do not apply to them. The functions could not be performed effectively within the bounds of existing FAA regulations. 

It is critical that you understand our statutory responsibilities 

and limitations in order to appreciate that we are not dismissing 

or in any way discounting the importance of aviation safety, regardless of whether the operation is civil or public. Whether or not 

FAA is primarily responsible for the safe operation of public aircraft, we know that our expertise in aviation safety is invaluable 

to other agencies in the development and implementation of safety 

standards and practices to oversee their public aircraft operations. 

We have also been working with the Forest Service and DOI to 

help them define the firefighting environment and its effects on aircraft structure. In the civil arena, FAA has decades worth of inforVerDate Nov 24 2008 08:13 Jan 03, 2018 Jkt 075679 PO 00000 Frm 00019 Fmt 6633 Sfmt 6601 S:\GPO\DOCS\27958.TXT JACKIE
16 

mation detailing how the structure of an aircraft is affected by the 

different types of operation, which has enabled us to create maintenance and inspection programs that make our civil fleet the safest 

in the world. 

There is little data with respect to firefighting operations, which 

require low-altitude operation in turbulent air with heavy loads. 

Understanding how and where this type of operation results in 

stresses on the airframe that may lead to fatigue and cracks will 

translate into the ability to develop maintenance and inspection 

programs that are appropriate for the firefighting environment. Realistically, it will take some time to obtain sufficient data to develop precise programs, but FAA will readily lend its expertise to 

help the Forest Service and DOI to refine the required programs 

as new information warrants. 

Since early 2003, we have also advised the Forest Service and 

DOI large tanker airworthiness review program conducted by 

Sandia National Labs. The review evaluated the certification, 

maintenance, operation, and other aspects of aerial firefighting in 

order to improve the airworthiness of its airtankers following two 

in-flight structural failures in 2002. This advice was provided in 

the form of comments on Sandia’s draft reports and was incorporated in Sandia’s final recommendations to the Forest Service 

and DOI. 

Finally, in response to significant Congressional concern expressed recently with respect to the Forest Service’s and DOI’s decisions to terminate airtanker contracts, yesterday FAA provided 

the Forest Service and DOI with broad criteria to establish the 

basis for an effective maintenance and inspection program for the 

firefighting environment. In addition, we provided guidance on the 

type of data the Forest Service and DOI should be obtaining and 

reviewing as part of their maintenance and inspection program. Finally, we provided to the Forest Service and DOI the names of FAA 

designees who could assist them with both immediate technical assistance and ongoing support. 

Mr. Chairman, aviation safety is critical to the national interest 

regardless of the type of operation or who is responsible for its 

oversight. Firefighting is also of paramount importance to the safety and well-being of our country. I understand why Congress is so 

concerned that the Forest Service and DOI are able to meet the demands they face in the coming fire season. FAA is committed to assisting the Forest Service and DOI in any way we can to ensure 

that its firefighting operations are conducted as safely as possible, 

given the inherently dangerous environment in which the aircraft 

must operate. 

While our statutory responsibilities limit our safety and regulatory oversight to the civil fleet, we appreciate that our technical 

expertise can be valuable to other agencies conducting public aircraft operations. Improving aviation safety is in everyone’s best interests and FAA will continue to be dedicated to having the safest 

system in the world. 

I will be happy to answer your questions at this time. 

[The prepared statement of Mr. Sabatini follows:] 

17 

PREPARED STATEMENT OF NICHOLAS A. SABATINI, ASSOCIATE ADMINISTRATOR, REGULATION AND CERTIFICATION, FEDERAL AVIATION ADMINISTRATION

Good morning Chairman McCain, Senator Hollings, Members of the Committee; 

My name is Nick Sabatini. I am the Associate Administrator for Regulation and 

Certification in the Federal Aviation Administration (FAA). I am pleased to appear 

before you today to discuss the respective roles the FAA, the Forest Service, and 

the Department of the Interior (DOI) play in the safety oversight of firefighting operations conducted on behalf of the Forest Service and the DOI. Recent decisions 

by the Forest Service and DOI to terminate contracts with companies that operate 

air tankers have resulted in 33 air tanker aircraft being unavailable for use this 

fire season. Because the decision to terminate the contracts was safety related, a 

clarification as to why the Forest Service and the DOI, and not the FAA, are making safety determinations with respect to these aircraft is appropriate. 

Earlier this year, the National Transportation Safety Board (NTSB) issued recommendations that arose out of its investigation of two fatal aircraft accidents in 

2002 in which fatigue cracking caused the wings on the aircraft to separate during 

flight. The aircraft were conducting firefighting operations on behalf of the Forest 

Service and the DOI at the time of the accidents. The NTSB recommendations, in 

conjunction with those of a Blue Ribbon Commission that also studied the accidents, 

Jed the Forest Service and the DOI to conclude that continued use of the aircraft 

tankers posed unacceptable safety risks. Consequently, the contracts were terminated and this action resulted in understandable concern about how not utilizing 

these aircraft would affect the ability of the Forest Service and the DOI to meet the 

challenges of this year’s fire season. 

Because the heart of this issue is the safety and airworthiness of aircraft, I understand why people believe that only the FAA should make such determinations. We 

are the premier aviation safety oversight agency in the world and I am proud of 

our record and reputation. But from the very beginning and at all times during the 

existence of the FAA, there has been a clear statutory distinction between civil and 

public aircraft operations. FAA has regulatory and oversight authority over civil aircraft operations. Public aircraft operations are conducted by or on behalf of many 

different government agencies and departments, including state and federal, from 

the Forest Service and the DOI, to the Justice Department to the U.S. military. By 

statute, authority for the safety oversight of these operations belongs to the agency 

or department responsible for the operation. While FAA can and does provide technical support to assist other agencies with their safety oversight responsibilities, the 

law is quite clear that FAA cannot direct or compel another agency to impose specific safety requirements or force them to meet existing FAA requirements. 

Over the years, the definition of what is a public aircraft operation has changed. 

In response to the death of the governor of South Dakota in an accident involving 

a public aircraft flight, Congress narrowed what could be considered a public aircraft operation in order to impose FAA regulatory standards on a greater number 

of operations. Until the statutory change in 1994, an aircraft was largely used as 

a civil aircraft or public aircraft throughout its life. Since 1994, the function of the 

operation defines whether it is civil or public. Using the example of the governor, 

when his flight crashed, it was a public aircraft operation merely because it was 

being operated by the state of South Dakota. Congress felt that transporting the 

governor from point A to point B was not an inherently governmental function; in 

other words, that there was no reason that the flight could not be performed by a 

civil aircraft meeting FAA standards. As a result, the law was changed and today, 

public aircraft operations are limited to only those operations that are inherently 

governmental in nature, such as firefighting, search and rescue, prisoner transport, 

and military operations to name a few. These government functions may require aircraft to be operated in a manner that is beyond what the FAA may consider to be 

safe for civil operations. It is one reason FAA regulations do not apply to them; the 

functions could not be performed effectively within the bounds of existing FAA regulations. 

Another issue central to today’s hearing is surplus military aircraft. Although 

many public aircraft operations, including firefighting, could be performed using 

FAA certificated aircraft, many operators use aircraft that have been retired by the 

military. The aircraft that crashed in 2002 were both former military aircraft. From 

FAA’s perspective, the difference between other FAA certificated aircraft and a surplus military aircraft is significant. An FAA certificated aircraft holds two certificates for each aircraft. The first is a type certificate that certifies that the aircraft 

design meets specified FAA safety standards. This certificate would be issued for 

each aircraft type, such as a Boeing 777 or an Airbus A320. For each individual aircraft, the FAA issues an airworthiness certificate that certifies that the specific airVerDate Nov 24 2008 08:13 Jan 03, 2018 Jkt 075679 PO 00000 Frm 00021 Fmt 6633 Sfmt 6621 S:\GPO\DOCS\27958.TXT JACKIE
18 

craft conforms to the approved design. Before each civil aircraft operation, the operator must confirm that the aircraft is in airworthy condition and must operate it 

within limitations’’ prescribed by its type certificate. 

Military aircraft are not required to meet FAA design standards or to receive an 

FAA type certificate. During their operation in the military, the operation and maintenance of these aircraft do not necessarily conform to FAA standards. Therefore, 

when the military wants to surplus them, FAA is not in a position to confirm that 

the aircraft are fit for civil operation. However, surplus military aircraft offer an affordable option for performing specific governmental functions, especially if the operations adhere to defined limitations. A non-military state or Federal agency with a 

surplus military aircraft can apply to the FAA for a restricted category type certificate. Similarly, if a private Part 137 operator (an entity holding a certificate for agricultural operations) has surplus military aircraft, they could also apply to the FAA 

for a restricted category certificate. (Part 137 of the Federal Aviation Regulations 

specifies that, in a public emergency, a person operating under this part may deviate from the regulatory requirements for relief and welfare activities approved by 

an agency of the United States or a state or local government. This enables Part 

137 operators to be compensated for conducting public aircraft operations on behalf 

of a government entity.) 

FAA reviews the information submitted with each application. Although the 

amount and type of information the FAA is provided varies from aircraft to aircraft, 

we look at what the aircraft was used for in the military, its maintenance records, 

its service history, its modification records, and the purpose for which the aircraft 

is expected to be used. We also inspect the aircraft. Based on our evaluation, FAA 

may issue a restricted category type certificate. The issuance of the certificate is 

based on the fact that the aircraft had been acceptable to the U.S. military and that 

the military was satisfied with its operation and with the maintenance performed 

on it. The requirements for continuing airworthiness are generally based on using 

the military maintenance and inspection manuals that accompany the aircraft. The 

type certificate sets forth specific limitations designed to minimize the risk of operating the aircraft. The limitations include, forexample, that the aircraft cannot be 

operated over populated areas, that it cannot carry passengers or cargo, and that 

it cannot be operated in another country without permission of that country. The 

certificate would also restrict the type of operation the aircraft could perform to that 

which the agency had reviewed. In other words, an aircraft approved only to conduct 

agricultural operations could not also be used for weather control operations. The 

operational approval is very limited. Once an aircraft receives a restricted category 

type certificate, the operator has an ongoing responsibility to ensure that the aircraft continues to conform to the certificate and is in a condition for safe operation, 

much as is the case with civil aircraft operations. The difference is that with a public aircraft operation, ensuring that the operator is meeting the safety standards 

falls to the agency on whose behalf the operation is being conducted, not the FAA. 

It is critical that you understand our statutory responsibilities and limitations in 

order to appreciate that we are not dismissing or in any way discounting the importance of aviation safety regardless of whether the operation is civil or public. Whether or not FAA is primarily responsible for the safe operation of public aircraft, we 

know that our expertise in aviation safety is invaluable to other agencies in the development and implementation of safety standards and practices to oversee their 

public aircraft operations. 

We have been working with the Forest Service and the DOI to help them define 

the firefighting environment and its effects on aircraft structure. In the civil arena, 

FAA has decades worth of information detailing how the structure of an aircraft is 

affected by different types of operation. This information has enabled the FAA to 

create maintenance and inspection programs that make our civil fleet the safest in 

the world. There is little data with respect to firefighting operations, which require 

low altitude operation in turbulent air with heavy loads. Understanding how and 

where this type of operation results in stresses on the airframe that may lead to 

fatigue and cracks will translate into the ability to develop maintenance and inspection programs that are appropriate for the firefighting environment. Realistically, 

it will take some time to obtain sufficient data to develop precise programs, but FAA 

will readily lend its expertise to help the Forest Service and the DOI to refine the 

required programs as new information warrants. 

Since early 2003, the FAA has advised the Forest Service and the DOI large air 

tanker airworthiness review program, conducted by Sandia National Labs. The review evaluated the certification, maintenance, operation and other aspects of aerial 

firefighting in order to improve the airworthiness of its air tankers following two 

in-flight structural failures in 2002. This advice was provided in the form of comVerDate Nov 24 2008 08:13 Jan 03, 2018 Jkt 075679 PO 00000 Frm 00022 Fmt 6633 Sfmt 6621 S:\GPO\DOCS\27958.TXT JACKIE
19 

ments on Sandia’s draft reports, and was incorporated into Sandia’s final recommendations to the Forest Service and the DOI. 

FAA has also identified specific aircraft certification offices (ACOs) as focal points 

for some restricted category aircraft. For example, the Atlanta ACO is designated 

as the focal point for the Lockheed C–130A. The Los Angeles ACO is designated as 

the focal point for Lockheed P2V as well as the Douglas military variants. The Forest Service and the DOI or any other federal, state or local entity may utilize these 

resources to access technical assistance to improve their safety oversight. 

Finally, in response to the significant Congressional concern expressed recently 

with respect to the Forest Service’s and the DOI’s decisions to terminate their air 

tanker contracts, FAA committed to immediately provide to the Forest Service and 

the DOI broad criteria to establish the basis for an effective maintenance and inspection program for the firefighting environment. In addition, we will provide guidance on the type of data the Forest Service and the DOI should be obtaining and 

reviewing as part of their maintenance and inspection program. And finally, we will 

provide to the Forest Service and the DOI the names of FAA designees who could 

assist them with both immediate technical assistance and ongoing support. 

Mr. Chairman, aviation safety is critical to the national interest regardless of the 

type of operation or who is responsible for its oversight. Firefighting is also of paramount importance to the safety and well being of our country and I understand why 

Congress is so concerned that the Forest Service and the DOI are able to meet the 

demands they face in the coming fire season. FAA is committed to assisting the Forest Service and the DOI in any way we can to ensure that its firefighting operations 

are conducted as safely as possible, given the inherently dangerous environment in 

which the aircraft must operate. While our statutory responsibilities limit our safety 

and regulatory oversight to the civil fleet, we appreciate that our technical expertise 

can be valuable to other agencies conducting public aircraft operations. Improving 

aviation safety is in everyone’s best interest and FAA will continue to be dedicated 

to having the safest system in the world. 

This concludes my prepared remarks. I will be happy to answer your questions 

at this time. 

The CHAIRMAN. Thank you. 

Mr. Rey, welcome. 

STATEMENT OF MARK E. REY, UNDER SECRETARY FOR 

NATURAL RESOURCES AND ENVIRONMENT, 

U.S. DEPARTMENT OF AGRICULTURE 

Mr. REY. Thank you, Mr. Chairman. I would like to submit my 

statement on behalf of the Department and the Department of the 

Interior for the record in its entirety. 

The CHAIRMAN. Without objection. 

Mr. REY. And I will just summarize briefly how we got to this 

point and what our plans are in going forward from here. I think 

your opening statement, Mr. Chairman, accurately summarized the 

history of how we got to this point. Essentially, after the fatalities 

in 2002, with the advice of a Blue Ribbon Commission chartered 

by the Chief of the Forest Service and the Director of the Bureau 

of Land Management and the expertise of the Federal Aviation Administration, we contracted with Sandia Laboratories to develop a 

more robust inspection and maintenance program and to modify 

the operations of our large airtanker contract fleet. 

We were hopeful that, as we knew that an ongoing NTSB investigation was under way, that the measures that we were taking 

would be adequate to assure the safety of the fleet and to continue 

its operation. On April 23 of this year, we received the final NTSB 

report, which indicated that for the fleet as a whole there was no 

way to assure the airworthiness of the aircraft. Faced with that report and the pendency of the upcoming fire season, we had essentially one decision and in my view one decision only to make, and 

that decision is this: In the face of the availability of alternative 

20 

aircraft which were demonstrably safer, would a prudent person 

continue to fly these airtankers? We concluded, given the risks associated with airtanker crashes and fatalities, the answer to that 

question is no. 

That set us on a very quick march program to secure alternative 

aircraft and reconfigure our firefighting aircraft fleet. That effort 

was completed yesterday and provided to the Committee last night. 

We will be retaining the contracted assistance of up to 46 singleengine airtankers, 21 type-1 heavy lift helicopters, 45 type-2 medium helicopters, 2 CL–215 airtankers, and in addition taking over 

the season-long use of 8 U.S. military C–130 aircraft equipped with 

modular airborne firefighting systems. 

Those aircraft are presently being contracted for. Some have already been contracted for and are in the process of being deployed. 

Some have already been deployed. 

The single policy objective that drove the reconfiguration of the 

fleet and the contracting of replacement aircraft was this: Over the 

last several years, the Forest Service and the Department of the 

Interior have enjoyed effectiveness at initial attack for wildfires of 

suppressing nearly 99 percent of ignitions at initial attack. The direction that we gave to the aerial experts in the Forest Service and 

the BLM was to reconfigure the fleet with adequate replacement 

aircraft to maintain that level of effectiveness at initial attack. 

In a memo to the chief of the Forest Service, the director of fire 

and aviation management in announcing the reconfigured fleet 

stated yesterday: ‘‘This plan was developed with an objective to 

maintain near-99 percent initial and extended initial attack success 

rates. I believe the plan will accomplish this objective.’’ 

So those are the new aircraft that have been contracted and are 

being contracted for. The fleet will be larger as we will be using 

different models of aircraft to fill the role of the airtankers, and it 

will be deployed differently to account for the different delivery 

times that different makes of aircraft, models of aircraft, also provide for. But it is our judgment that it will be equally effective as 

the fleet was last year in assisting us in achieving the near-99 percent initial attack success rate. 

So the decision was made at the beginning of the fire season, at 

a time when there was not a great deal of time to dally. It was not 

made lightly because the large airtankers have served us gallantly 

and valiantly over a large number of years. But it was made with 

the certainty that if we lost one of the large airtankers in the 

wildland-urban interface, in a subdivision, in a school, that we 

would be here having a quite different hearing that would not be 

very pleasant, and I am not assuming this hearing is going to be 

very pleasant. 

Now, all that having been said, some Members of Congress and 

other elected officials have raised the good and fair question: Why 

not give the large airtanker fleet a chance to show that they can 

demonstrate airworthiness, and if they can then return them to 

service and save some money in the process, since they are more 

cost-effective than the alternative aircraft that we are contracting 

to take their place? 

That seemed like a fair approach. So, again with FAA’s expert 

assistance, we have over the last 2 weeks developed baseline criVerDate Nov 24 2008 08:13 Jan 03, 2018 Jkt 075679 PO 00000 Frm 00024 Fmt 6633 Sfmt 6601 S:\GPO\DOCS\27958.TXT JACKIE
21 

teria and a profile for the contractors to provide information to us 

with FAA’s assistance, to assess whether the information necessary 

to assure their airworthiness can be secured and evaluated properly. Today each of the eight affected contractors will be receiving 

a letter from the Chief of the Forest Service and the Director of the 

Bureau of Land Management asking them to provide that information if they so choose, and the information will be used by the Forest Service and Department of the Interior and FAA-certified engineering representatives to evaluate whether we can assure the airworthiness of part or all of the fleet. 

If we believe, in our combined expertise, that we can, then we 

will be submitting that information to NTSB to see if we can get 

a further evaluation and a modification of their recommendations. 

We are doing that, not because we lack confidence in the reconfigured fleet that we are contracting for, but because it seems an equitable thing to do and also raises the possibility that if some portion of the large air tanker fleet can be restored to service we can 

do the firefighting job equally well at less cost to the public and 

with less taxpayer dollars being expended. 

Let me close with just a quick summary of the difference between the perception of the use of large air tankers and the reality 

of the use of large airtankers. The perception is that large 

airtankers extinguish big forest fires. That perception is not correct. Large airtankers have their greatest use to us in the firefighting mission on initial attack and extended initial attack in 

fires where on-the-ground access is a problem. They are good for 

initial attack to try to extinguish a fire where we cannot get a crew 

in easily—either a ground crew or an engine crew. They are useful 

to us on extended initial attack to drop retardant to slow down a 

fire front where we are trying to build a perimeter around it and 

where nothing within that perimeter is anything that we want to 

try to save. But those are their two primary missions, and we believe those missions can be filled by the reconfigured fleet. 

As the Chairman’s opening statement correctly noted, last year 

only somewhat less than 20 percent of the total water and retardant that we used was dropped by large multi-engine airtankers. We 

also reduced the hours of the large airtankers as part of the Sandia 

protocol by about 42 percent. So they are a useful part of our fleet, 

without question. They are a very cost-effective part of our fleet. 

But they are not an essential part of our fleet to maintain firefighting effectiveness and public safety. 

Thank you very much. 

[The prepared statement of Mr. Rey follows:] 

PREPARED STATEMENT OF MARK E. REY, UNDER SECRETARY FOR NATURAL RE- SOURCES AND ENVIRONMENT, U.S. DEPARTMENT OF AGRICULTURE AND P. LYNN

SCARLETT, ASSISTANT SECRETARY FOR POLICY, MANAGEMENT, AND BUDGET, UNITED STATES DEPARTMENT OF THE INTERIOR

Introduction 

Mr. Chairman and members of the Committee, thank you for the opportunity to 

discuss, on behalf of the Department of Agriculture and the Department of the Interior, the recent termination of contracts for 33 large air tankers used for firefighting 

due to concerns over their airworthiness. 

Our decision to terminate the contracts was ultimately based on the unacceptable 

safety record of these large air tankers that has resulted in multiple aviators deaths 

from airworthiness failures. The land management agencies are responsible for the 

22 

safety of aviators, firefighters, and the public during firefighting operations and 

based upon the recommendations of the National Transportation Safety Board 

(NTSB), there was no other alternative. At the same time, I want to stress that our 

ability to fight wildfires and protect communities continues at a high level. The reduction of 33 air tankers from our fleet of hundreds of aircraft changes, but in no 

way diminishes, our firefighting efforts. 

Airworthiness 

On May 10, 2004, the Forest Service and the Bureau of Land Management terminated the contracts for 33 large air tankers due to concerns presented in the NTSB 

Safety Recommendations about the airworthiness of the aircraft and public safety. 

The large fixed winged air tankers were used in wildland firefighting to drop fire 

retardant primarily at the beginnings of fires (known as initial attack). Private companies operated the 33 air tankers during the fire season under contracts with the 

Federal agencies. 

The decision to cancel the contracts was based on a series of events and the cumulative findings of two reports: (1) the Blue Ribbon panel of aviation experts which 

issued its findings in December 2002; and, (2) the April 23, 2004 National Transportation Safety Board (NTSB) report on three air tanker accidents. 

The Blue Ribbon Panel cited numerous concerns with the reliability of the large 

air tankers, composed of aging retired surplus military aircraft. These reliability 

issues presented safety concerns, as well as operational problems. For a time, the 

Forest Service and Bureau of Land Management thought they could work through 

these concerns, following the Panel’s recommendations for a more robust inspection 

and maintenance program, and relying on the efforts of the aircraft owners and the 

Federal Aviation Administration certification process for private use. 

The report of the NTSB validated the Blue Ribbon panel but added critical findings that led us to conclude we could not continue to use these aircraft under the 

current circumstances. One critical finding of the NTSB report states ‘‘. . . no effective mechanism currently exists to ensure the continuing airworthiness of these firefighting aircraft.’’ 

Since most of the large air tankers were designed and used for military operations 

before their acquisition by contract companies, the NTSB recommendations also indicated that a complete history, including maintenance and inspection records, is 

not available for many of the air tankers. The average age of the large air tankers 

is 48 years with some tankers more than 60 years of age. There is a lack of baseline 

data to determine the level of stress placed on the airframes during firefighting. 

Further, there is missing documentation for some airplanes about their previous 

missions flown, and what additional stresses those flights might have put on the 

structure of the aircraft. Time has caught up with this program and with the air 

tankers. Since the NTSB identified the Forest Service and Department of the Interior as the agencies responsible for the safety of these aircraft, it was time to make 

this decision. 

Since 1958, more than 130 large air tanker crew members have died. The Blue 

Ribbon Panel reported that, if ground firefighters had the same fatality rate, this 

would equal more than 200 on the-job deaths per year. This is totally unacceptable. 

The Chief of the Forest Service and the Director of the Bureau of Land Management 

terminated the air tanker contracts because the risk to aviators’ lives is too great 

and because alternative aircraft are available. We could not continue to use these 

aircraft, putting aviators and ground firefighters at risk for more catastrophic accidents when we don’t have enough data or the ability to confidently assess the risk, 

nor a program in place to mitigate the risk. We could not subject the same communities we are trying to protect from wildfire to the additional risk of an air tanker 

breaking apart over homes in the wildland urban interface. 

Firefighting Operations 

There is a widespread perception that we can drown a wildland fire if we drop 

enough water and retardant, and that without the large air tankers, homes and forests are at greater risk. We need to be clear—wildfires are put out on the ground. 

The large air tankers were useful in the initial attack of fires. However, they were 

only one of the tools fire managers use in deciding how to fight fire safely. Fire 

retardants are chemicals that impede the progress of wildfire, but do not stop it. 

Fire retardants slow the fire’s growth and rate of spread to give ground forces more 

time to complete suppression actions. Those ground forces are the key—firefighters 

put out fires, not air tankers. 

Moreover, even though air support is a valuable tool, it extends beyond large air 

tankers. It includes helicopters and Single Engine Air Tankers (SEATS). Fire intensity levels, determined by factors like wind speed, rate of fire spread, and smoke 

23 

inversions, determine if aircraft may or may not be the right tool to slow a wildfire. 

At lower fire intensities, aerial support generally is not needed and at high fire intensity, fire retardant is not useful. Aviation assets are also affected by weather conditions. There were several days during the California fires that aircraft could not 

fly because of wind conditions and the associated turbulence in the air over wildland 

fires. 

Over the past few years, we have gradually increased the use of helicopters in 

firefighting support. The fixed wing air tanker fleet was actually only delivering 

about 20 percent of all suppressants, including retardant, foam and water. Although 

fixed wing aircraft can often arrive faster, travel faster, and carry more to a fire, 

they are limited by the maneuverability limits over mountainous terrain, and proximity of a suitable and secure airport with reload facilities. In many ways, the 

smaller aircraft and helicopters provide increased flexibility in their use than the 

larger tankers. 

We have the best trained and best equipped Federal wildland firefighting forces 

in the world, and our state and local firefighting partners make us even stronger. 

Tens of thousands of initial attack efforts are successful every year without any aerial support from large air tankers. In fact, approximately 98 percent of all fires targeted are suppressed upon initial attack. Firefighters know how to set protection 

priorities and employ strategies and tactics to be safe and successful in suppressing 

the wildland fire. 

Operations for 2004 

Firefighting resources are coordinated at the national level by the National Multiagency Coordination group at the National Interagency Fire Center in Boise, Idaho. 

The group is made up of Federal agencies and the National Association of State Foresters. Eleven geographic area coordination centers provided information on anticipated needs for the 2004 fire season. The information was developed into the 2004 

strategy that addresses the initial and extended attack needs for the Nation. This 

plan will be reviewed and modified on a bi-monthly basis or as the severity of the 

fire season dictates. 

We are currently activating all of our aircraft so they are prepared to assist the 

ground firefighters. Helicopters and single engine air tankers are pre-positioned 

throughout the country based on intelligence regarding drought, anticipated weather conditions and expected fire activity. The National Interagency Coordination Center will continue to move aerial assets as needed through this summer’s fire season 

to support the ground firefighters. 

Through new contracts, we have increased our fleet of other aerial firefighting 

support assets in order to reduce the impact of the loss of the large airtankers. Contracts are being negotiated to add large helitankers, which can deliver up to 2,000 

gallons of retardant and large helicopters with buckets, which can deliver up to 

1,000 gallons of retardant. Details are being finalized for the short term plan to 

maintain our success rate suppressing wildfires at initial attack. 

Questions have been raised about the use of the large air tankers by the states. 

The National Multi-agency Coordination group has issued guidance on the use of 

aviation assets. State contracted large air tankers will be used on Federal lands 

where states have formal prote9tion responsibility and are in operational control of 

the fire. No Federal personnel may be assigned as state contract officers on an unauthorized tanker, nor may any Federal employee be assigned to a position to exercise operational control of an unauthorized tanker. 

We have been working with the FAA to develop a protocol for assuring airworthiness of the firefighting craft, and their testimony today reflects our mutual intent 

in that regard. We are also engaged with the FAA in developing criteria to review 

the airworthiness of the 33 air tankers that were the subject of the terminated contracts. We expect to finalize a process in the next couple of days, and will share that 

with the Congress as soon as possible. 

The Administration recognizes the need for a long term strategy for firefighting 

operations, integrated with the overall operations of the affected agencies, and we 

are working to develop that long term plan. We are currently conducting an evaluation of the cost effectiveness of aviation resources, including tradeoffs between different types of resources, and we expect to incorporate the results of that study as 

the long term strategy is developed. 

Summary 

We appreciate the work of the members of the Blue Ribbon Panel, the NTSB, the 

FAA, and Congress to help us deal with this issue. This will be a challenging fire 

year, but not because of the absence of airtankers. With the drought, too much fuel 

on our forests and rangelands, and the expanding wildland urban interface, fires 

24 

1 NTSB Safety Recommendation A–04–29 through 33, dated 23 April 2004 

will continue to be tough to suppress. Where appropriate, we will manage wildland 

fires for resource benefits including fuel reduction, and suppress wildfires that 

present a danger to lives and property. 

During the past several years, we have limped along with an aging air tanker 

fleet by reducing delivery capabilities, restricting flight hours and pouring tax dollars into enhancing maintenance and inspection programs. Continuing to pay more 

for less capability in a fleet of unknown airworthiness is a doomed strategy, poor 

public policy, and bad stewardship of taxpayer dollars. Safety is the most important 

value of the firefighting community. To continue to use these large air tankers when 

no mechanism exists to guarantee their airworthiness presents an unacceptable 

level of risk to aviators, to the firefighters on the ground, and to the communities 

we serve. 

Thank you for the opportunity to testify today on this important safety matter. 

I am happy to answer any questions you might have. 

The CHAIRMAN. Thank you. 

Mr. Timmons. 

STATEMENT OF MARK TIMMONS, PRESIDENT, NEPTUNE 

AVIATION SERVICES, MISSOULA INTERNATIONAL AIRPORT 

Mr. TIMMONS. Mr. Chairman, I want to thank you for the honor 

of testifying before this committee and I would like to submit my 

testimony for the permanent record. 

The CHAIRMAN. Without objection. 

Mr. TIMMONS. I have two formal documents: one from Doug 

Herlihy, an independent forensic aircraft investigator who is a 

former lead investigator for the NTSB; the second one is Ron Livingston, a contractor hired by the U.S. Forest Service to oversee 

airworthiness programs for the U.S. Forest Service. I would like 

both of these documents to be part of the record. 

The CHAIRMAN. Without objection. 

[The material referred to follows:] 

STATEMENT OF DOUGLAS R. HERLIHY, AIR SAFETY INVESTIGATOR, 

HERLIHY & LEONARD

ARE WE READY FOR THE 2004 WILDFIRE SEASON

Mr. Chairman and Members: 

I am a forensic aircraft accident reconstructionist, an instructor in aviation safety 

at the University of Southern California, and formerly an Operations Group Chairman with the National Transportation Safety Board National Go-Team. Prior to employment with the NTSB, I served as Chief, Search and Rescue Branch of the 

United States Coast Guard, Atlantic Area and a rescue aircraft commander with 20 

years of USCG service. I hold an FAA Airline Transport Certificate with type-ratings in large aircraft including the Lockheed C130, and have approximately 17,000 

pilot-in-command hours. 

As a forensic aircraft accident investigator and reconstructionist since 1994, I 

have investigated, submitted to courts, and published reports on a number of aviation accidents occurring to aerial firefighting airplanes. The analysis and scholastic 

study of the circumstances and causes of the accidents in this sector is part of my 

ongoing work at the University of Southern California, School of Engineering. 

The objective of this submission is to provide input from the private sector, as an 

expansion of and in addition to the recent NTSB Safety Recommendations relating 

to certain ‘‘In-Flight Breakups of Firefighting Aircraft,’’ 1 and to provide input to the 

safety considerations in the use of large aerial tankers for the 2004 wildfire season 

and beyond. 

25 

2Source: U.S. Department of Agriculture-US Forest Service, and Department of Interior study 

1995, 8.7 in benefit to cost of program. 3Source: Aerial Firefighting Industry Association (AFIA) 

4 Aeronautical decision-making, airmanship, attempt at visual flight in instrument conditions 

and mid-air collisions lead the causes. 5The 1996 forensic investigation team found by NTAP (national tracking—RADAR recording 

program) calculations that the C130A airplane was being operated at over 250 knots true airContinued 

ABSTRACT

As the Nation enters the 2004 wildfire season, forecasts of dangerous woodland 

conditions have raised urgent questions regarding the suitability, airworthiness and 

sufficiency of the aerial tanker fleet. 

Tragic accidents involving three large aerial tanker airplanes are the sole focus 

of NTSB investigations and recommendations that question the continued airworthiness of aging aerial tankers. 

Alternative issues, facts and circumstances regarding those tragic accidents are 

presented here that support, expand and sometimes contradict the Safety Board’s 

conclusions and findings. 

Importantly, this submission raises questions of scope and accuracy of the Safety 

Board’s information that became the bases for their recommendations. Particularly, 

the broad-brush NTSB report of aerial tanker shortcomings, seems to lack a full understanding of the existing resources and advances of some leading tanker operators. 

Neptune Aviation Services of Missoula, Montana, a leading operator in the aerial 

tanker industry, is selected here for exemplar analysis, albeit briefly, to highlight 

the solid advances in maintenance and operations that can be and are currently 

being achieved. 

Finally, conclusions are offered that ask for additional study of issues not addressed by the NTSB Safety Recommendations, along with greater support from 

those governmental agencies tasked with forest resource protection. 

Background Statement: History and Factors in Aerial Tanker Accidents 

Involving In-Flight Breakup 1994 and 2002 

Aerial firefighting airplanes have been instrumental in saving lives and property 

for over 50 years. That fact is indisputable. And though many of the thousands of 

accounts may only be anecdotal, the suppression of fires by large airdrops of cooling 

slurry has proved crucial in season after season, and is measurable in property 

saved versus cost of operation. Aerial tankers reflect solid cost-effectiveness. The 

1995 National Air Tanker Study 2 cited the benefit-to-cost ratio of the large air tanker program to be nearly 9 to 1. In 2003, more than one hundred airplanes and helicopters, operated by nearly 20 commercial aerial tanker companies were engaged in 

wildfire suppression.3

Recent Tragic Losses 

Regretfully, accidents and fatalities in aerial firefighting have taken the lives of 

scores of aircrew-firefighters, in this hazardous occupation. These accidents occur, 

under extremely difficult flight environments, often long flight or standby days, and 

urgent mission pressures. It is important to point out however, that human failure 4

provides the majority, albeit not the only, causal factor, to aircraft accidents in the 

aerial firefighting industry. In 2002, a Lockheed C130A and a Consolidated P4Y, 

two large aerial tankers operated by Hawkins and Powers of Greybull, Wyoming, 

were lost following structural failures to their airframes. The NTSB in issuing its 

recent safety recommendation has cited these accidents as well as a 1994 in-flight 

breakup at Pearblossom, California, focusing on continued airworthiness. While the 

NTSB reported that both the C130A and the P4Y were maintained and flown by 

one company, Hawkins and Powers, of Greybull, Wyoming, the safety recommendation(s) addressed continuing airworthiness issues in broad generalities, suggesting 

that the entire large aerial tanker fleet was problematic. 

In my opinion, this broad-based fault finding, goes far beyond what the facts 

would support in the limited inquiry done following the loss of the P4Y and C130A 

crashes of a single company. Moreover, the original NTSB accident investigation of 

the 1994 Pearblossom C130A accident was so flawed as to ignore the basic operational and structural issues, resulting in an erroneous finding of cause. Eight years 

later, the NTSB re-examined limited and old parts, and still failed to focus on operational realities that the Hercules airplane was being operated nearly 40 knots beyond its limiting speed.5 This represents a significant omission in the second NTSB 

26 

speed (between 218 and 228 knots indicated) when the certificated (by STC) and Lockheed/ 

USAF limit was set at 180kts. 6The NTSB used over 15 witness statements in the Pearblossom accident investigation to support a theory that an ‘‘explosion’’ (interpreted by witnesses) ‘‘blew the wing off.’’ And though the 

probable cause was issued as an explosion, not a single piece of wreckage at the crash site exhibited overpressure signatures, characteristic of an explosion. Moreover, top-center-wing sections found 1,700 feet before the impact site showed remarkably no fire or heat damage. 7 Both Lockheed C130A airplanes N135FF (lost in August 1994 at Pearblossom, CA) and 

N130HP (lost at Walker, CA in June 2002) were manufactured inn the same year (1957), delivered to the U.S. Air Force the same year, and acquired the exact same flight hours (19,547) 

when transferred to the U.S. Forest Service in 1988. 8Supplemental Type Certificate approving the installation with operational instructions for 

the 3,000-gallon retardant tank, issued to Hemet Valley Flying Services. 9Depending on the solution and other factors, the slurry may weigh between 9 and 11 pounds 

per gallon, with a full retardant tank on the C130A weighing between 27,000 and 33,000 

pounds. 10On average jet fuel weighs 6.5 pounds per gallon, and the Allison T–56–7 engine consumed 

at least 1,500 to 1,700 pounds per hour per engine at low level/high power. (over 900 degrees 

turbine-inlet-temperature TIT). 11 A nominal C130A empty weight, with crew, equipment, spares, and oil, weighing 85,000 

pounds could carry only 15,000 pounds of fuel (less than 2 hours of operation with 45 minutes 

reserve), if the retardant tanks were full. 12The C130 series airplane has a wing designed without a spar. Instead, wing boxes, including a 440-inch hollow box which forms the center wing section, spans the fuselage, 220 inches 

on each side. Strength is maintained by the structural integrity of all four surfaces of that box, 

and unlike a normal spar-wing. 

report, similar to the ‘‘reverse-science’’ 6 approach taken in the first accident that 

found only those factors needed to support witness accounts of an ‘‘explosion.’’ 

Similar to the witness statements made in the Pearblossom accident, witnesses 

at the Walker, California crash saw and heard explosions and told of the wing being 

blown off. Fortunately, investigators in this later accident had the significant advantage provided by film crew video of this tragic event. In the Walker event, the top 

center wing section can clearly be seen lifting off in the early stages of the breakup. 

Lessons Not Learned 

The C130A aircraft lost in the in-flight breakup events of 1994 and 2002 show 

remarkable similarity, in service hours and modification. According to the NTSB, 

both aircraft were sold to a single company, Hemet Valley Flying Service of California with exactly the same history.7 Both airplanes were modified with 3,000-gallon slurry drop tanks at the same facility in Hemet Valley at approximately the 

same time. Hemet Valley Flying Service designed and installed the structure at 

their facility. At the time these aircraft were modified, the FAA-Approved STC 8 limited the airplane to a gross weight of 120,000 pounds, but allowed the airplane to 

be loaded with a full 3000 gallons of retardant.9 Calculations easily show that the 

C130A airplanes configured with a cargo capacity approximating 30,000 pounds left 

little more margin than for 15,000 pounds 10 of fuel allowable in the wings 11. 

The Lockheed C130 Flight Manual cautions, in part, ‘‘During maneuvering and 

flight through turbulent air, additional loads are imposed on the airplane. These 

loads, caused by the acceleration of the airplane, are added to the normal 1.0g load 

which the structure is supporting. The most important structure is that of the wings 

that must sustain the airplane in flight. AS THE PAYLOAD IS INCREASED, THE 

WINGS BECOME MORE AND MORE VULNERABLE TO THE LOADS IMPOSED 

BY TURBULENCE, SUDDEN CONTROL MOVEMENTS, OR EXCESSIVE ANGLES OF BANK. (caps added). . . . Each outboard wing tank must contain 715 

pounds of fuel more than that of the inboard tank. For flight, this distribution helps 

reduce wing UPBENDING (caps added) by maintaining a spanwise center of gravity 

of the fuel that is outboard of the center lift of the wing.’’ 

These cautions were intended for a brand-new, zero-time airplane. The up-bending of the center wing section (due to light fuel loads and heavy cargo loads) places 

the top skin in compression, and the bottom skin in tension. Conversely, a flexing 

of the wing in turbulence or rapid control movements, places the top skin in compression and the bottom of the wing in tension. The unique construction of the boxtype stringer-to-skin design, allows for a single row of holes to be drilled and rivets 

to be placed all along this structure. This design is somewhat different than the construction of other airplanes. Both the Pearblossom and Walker aircraft were subsequently lost when their center wing sections failed in precisely the same location.12

Both the civilian forensic investigators and the re-investigation by the NTSB found 

fractures in the center wing section of both N135FF and N130HP that originated 

27 

13Fatal Accidents, commercial jet aircraft, 1988 through 1997 were caused primarily by 

human failure, ‘‘Controlled Flight Into Terrain’’ (CFIT), airmanship, mid-air collisions, landing, 

takeoff, runway incursions, all result from human failure (Source: Boeing Commercial Airplane 

Company 1998). Previous studies in ‘‘crew-caused accidents’’ (ref: Gallimore, Boeing Commercial 

Airplane Company, 1987) found that in the period 1977 through 1986, flight crew errors were 

responsible for aircraft loss 70.6 percent of the events vs. 13.4 percent in airplane-caused failures. During the previous period recorded (1959 through 1976) crew-caused accidents were 73.5 

percent vs. 12.1 percent airplane-caused failures. 14 NTSB Investigation LAX–94–F–A323 15Zaremba v. Lockheed et al., SDSC680802, Calif Sup Ct, San Diego; In re: Crash of Lockheed 

C130A near Pearblossom CA., August 13, 1994 16 Crew Resource Management, (see Wiener, Kanki, Helmreich Cockpit Resource Management), Academic Press, 1993 for treatise on the subject. 

at rivet holes along angle-braces inside the wing box (points of stress concentration—‘‘stress risers’’) in the wing skin structure. 

Human Errors Remain as Primary Causal Factor 

It is human failure that remains consistent with the commercial and private aircraft findings of cause of aircraft accidents. Similar to causal factors in the aerial 

tanker accidents over a long history, crew-caused accidents lead the numbers by 

far.13 Even in cases where system or structural failure has been found as a proximate cause, the complex contributing factors of human failure cannot be discounted 

as the underlying cause. 

One may ask, ‘‘Can human error in the design and installation of an aircraft 

modification, or the human error in the failure of oversight by government inspectors be any less contributing factors than the pilots?’’ Such consideration of human 

failure is particularly absent in the NTSB Safety Recommendation, which cites the 

NTSB re-investigation of the 1994 Pearblossom C130A crash (findings revised 2002– 

2003),14 wherein structural fatigue was found as the cause. This seems to be a simple answer of ‘‘what happened’’ and not ‘‘why it happened.’’ 

In an earlier 1996 re-examination 15 by a team of forensic investigators, cause was 

found to be rooted in the complex operational factors leading to structural failure. 

In those findings, the C130A aircraft was operating, at the time of in-flight wing 

failure, at a speed of nearly 40 knots higher than maximum allowable and certificated airspeed, in an environment of 102 degrees Fahrenheit, and in moderate turbulence, while merely ‘‘enroute to the fire.’’ While the 1994 NTSB investigation published a finding of an ‘‘explosion’’ of unknown origin, the 1996 NTSB re-investigation 

found fatigue fractures in its examination of what little remained of the airplane’s 

structure. Neither the NTSB 1994, nor the 2003, report considered the apparent 

stress to the airframe that was crew-induced. Moreover, neither report emphasized 

the apparent total absence of cockpit resource management, which could have prevented the airplane to be flown in that manner only 400 feet above the 8,000 foot 

ridge tops of the California Sierras. Sadly, in retrospect, whether or not the 2002 

loss of the Hawkins and Powers C130A or the Hawkins and Powers Consolidated 

P4Y ultimately broke up as a result of airframe failure, the industry and the aircrews lost a most valuable opportunity to study, over an 8-year period, the operational, as well as the airworthiness factors of the Pearblossom loss. 

However, the NTSB Safety Recommendation, without a full appreciation for the 

facts, focuses on continuing airworthiness. The errors that destroyed these airplanes 

may have been simply explained in the original Lockheed cautions, warnings and 

performance calculations in the manufacturer’s instructions. Tragically, even with 

the knowledge of the operational and structural failures available to the government, the loss of a second and then a third large tanker airplane had to occur before 

any action was taken. 

In my opinion, the failure of the human system is ignored because it is a difficult 

subject to quantify and change. Measuring cracks and X-raying for flaws is a simple 

solution; changing operational procedures and developing effectual governmental 

oversight in operational procedures proves more difficult, especially when government inspectors are neither trained, experienced nor current in the large airplanes 

flown as aerial tankers. Neither are government inspectors practiced in the CRM 16

(crew resource management) gained only through experience in multi-crew cockpits. 

Complex Factors In All Accidents 

Why do airplanes fail in flight? It is a complex mixture of operational, aerodynamic and structural dimensions. It is all too easy to find ‘‘what happened’’ to the 

airplane structure, and not ‘‘why it happened’’. Furthermore, ‘‘fatigue’’ cracks found 

in wreckages often provide little ‘‘historical’’ significance. As an example, the 1996 

re-examination of the C130A (Pearblossom) wreckage, while finding ‘‘low cycle fatigue fractures between rivet holes along wing skin stringers of the center wing secVerDate Nov 24 2008 08:13 Jan 03, 2018 Jkt 075679 PO 00000 Frm 00031 Fmt 6633 Sfmt 6621 S:\GPO\DOCS\27958.TXT JACKIE
28 

17Findings confirmed by the California engineering laboratory of Fowler, Inc. 18 National Wildland Fire Outlook, May 1 to May 31, 2004 19 Ibid, U.S. national areas predicted for ‘‘above normal’’ wildfire potential include the Northwest US, Southern California, Northern Rockies, Eastern Great Basin, Southwest US, Rocky 

Mountain US, and Eastern US. 20 Ibid. Prepared May 1, 2004 21William B. Scott, Initial Attack, Aviation Week & Space Technology, November 3, 2003 22 Aero Firefighting Lockheed C130A at Pearblossom, California 8/13/94; Hawkins and Powers 

Lockheed C130A at Walker, California 6/17/02 and Hawkins and Powers Consolidated Vultee 

P4Y near Estes Park, Colorado, 7/18/02. 23 NTSB Recommendation A–40–29 through 33. 24 Both the 1994 NTSB investigation and the 1996 forensic investigation found no evidence 

that FAA airworthiness oversight at Hemet Valley was an in depth process. The facility was 

modifying the structures of FAR Part 137 (agricultural) airplanes, and maintenance waivers 

from military procedures were granted due to the lack of test and support equipment available 

to that company in the private sector. 25 NTSB Recommendation A–40–29 through 33. 26 Under 49 CFR 800 et seq., the National Transportation Safety Board may conduct Special 

Studies to examine system wide, or other broad issues affecting transportation safety. 

tions,’’ it was remarkable that none of these fractures revealed pre-existing fatigue. 17

Such a finding of fatigue without pre-existing signature has a straightforward explanation. As an example of ‘‘new fatigue,’’ one only has to repeatedly bend a new 

paperclip ten times before it breaks in ‘‘low cycle fatigue.’’ This is not to suggest that 

the 20+-year old Pearblossom C130A was new, but the presence of pre-existing fatigue cracks may not be easily differentiated, especially when the wreckage has suffered the elements of eight years of neglect. Neither does it suggest that fractures 

were not propagating before the crash. It simply means that insufficient information 

exists about the true state of the airframe before the accidents. 

However, we do know, based on weight calculations, performance limitations and 

installation criteria, that the operational limitations of the C130A aircraft were likely and routinely exceeded by the flight crews. Lack of adherence to limitations, lack 

of recurrent and initial training on G-limitations and operating parameters, urgency 

of missions, ignorance of light wing loading vs. heavy cargo phenomena, are all operational factors that comprise poor aeronautical decision-making leading to accidents 

and not, as the NTSB suggests, a problem based primarily on the airworthiness of 

the airplane. While airworthiness is always important, the primary considerations 

should be operationally focused, not structurally focused, as it is always possible to 

break even a brand new airplane. The original manufacturer (Lockheed) clearly 

pointed that out in original 1957 flight manuals. 

The Maturation of the Aerial Tanker Industry 

Aerial tanker operations have evolved from a fleet of generally agricultural application airplanes, to single-engine de-militarized attack airplanes, to still more complex and capable aircraft and helicopters. Too, over the years, changes in forest and 

population dynamics have occurred as resource and recreational use has shifted and 

remote settlement on forestland has become commonplace. Because of these 

changes, government experts indicate that fighting fires is more complex and challenging, as well as larger and more dangerous to population centers as seen in the 

recent years. The potential for great fire losses seems to be looming for the 2004 

fire season as well. The ‘‘Wildland Fire Outlook’’ 18 for eleven areas 19 surveyed by 

the National Interagency Coordination Center predicted ‘‘above normal’’ wildfire 

outlook beginning early in 2004.20 Clearly, the need for large quantities of retardant, from large capacity aircraft will be a critical consideration. In a national publication it was reported that, ‘‘Firefighting tankers are often the first aircraft available to contain a backcountry fire.’’ 21

NTSB Focuses on Continued Airworthiness 

The loss of three tanker aircraft 22 provides the entire bases for NTSB Recommendations 23 seeking broad development of maintenance and inspection programs impacting the aerial tanker industry. In the wreckages of the Hemet Valley 

and the Hawkins and Powers airplanes, the NTSB found fatigue cracks that propagated to the point of structural failure to be related to the probable cause(s) of these 

accidents. Specifically, two of the airplanes were products of the same installation 

facility, that had little more than cursory FAA oversight at the time.24 The findings 

and recommendations, in the NTSB accident reports, as well as in the Safety Recommendation,25 however, raise a number of unresolved questions not easily addressed, especially those relating to human performance. Furthermore, the NTSB 

Safety Recommendations clearly paint all tanker operators with the same broad 

brush, without the benefit of an in-depth analysis or ‘‘Special Study.’’ 26

29 

27On July 29, 1994 near Squaw Peak, MT, Neptune Tanker 04 crashed when pilots lost situational awareness and flew into a mountain valley without exit; and on June 27, 1997, Neptune 

Tanker 08 crashed at Reserve, NM in a maneuvering stall accident while the copilot was believed to be controlling the airplane. 28 In addition to having served as an FAA Inspector, and a career NTSB Investigator-inCharge, Mr. Stockhill holds an FAA Aircraft and Powerplant Certificate, with FAA Inspection 

Authority (A&P/IA) 29FAA Part 135 refers to the certificate holders who maintain and fly scheduled commuter 

and on-demand aircraft. 30FAA Part 121 refers to the certificate holders who maintain and fly scheduled airline operations. 31 Neptune Aviation Services was featured in Aviation Maintenance, November 2003/Vol.22; 

and Aviation Week & Space Technology, November 3, 2003. 32Stockhill, Aviation Maintenance, November 2003/Vol. 22, Number 11 

High Standards Do Exist in the Aerial Tanker Industry 

In my opinion, the NTSB Safety Recommendation, though well meaning, is short 

on the facts as they pertain to certain ‘‘state-of-the-art’’ heavy tanker operators and 

repair facilities. While this investigator has not studied the Hawkins and Powers 

procedures and facility enough to make comment, another operation stands out, as 

likely the best in the industry, on a par with the repair facilities of airline operators. 

Since 1993, Neptune Aviation Services, Inc., has been applying the newest inspection 

technology and airworthiness analysis processes. Moreover, Neptune has been the 

leader in tanker pilot training and CRM procedures, formalizing airline standardization and crew coordination equivalent to FAR Part 121 procedures (some learned 

from tragic pilot-error accidents).27

According to an examination of the Neptune maintenance facility at Missoula, 

Montana in 2003 by Michael L. Stockhill,28 a former NTSB NW Regional Supervisor, ‘‘Neptune (maintenance) is head and shoulders above Part 135 29 maintenance, essentially at Part 121 30 and better.’’ A nationally circulated magazine article (AW&ST)31 highlighted Neptune’s professional CRM procedures, while another 

nationally circulated maintenance journal highlighted Neptune’s advanced repair facility and process. Advances in this company’s maintenance process clearly rivals 

the best of the FAR Part 121 (airline) maintenance facilities. The inspector-author 

stated, ‘‘The maintenance (Neptune’s) program appears to be as methodical and 

stringent as FAR 121 (airline) maintenance standards.32’’ State-of-the-art maintenance and airworthiness assurance are notable, setting ‘‘benchmarks for the international firefighting industry’’ (AW&ST). Noteworthy advances at the Neptune 

Aviation Missoula facility include an FAA Certified-Part 145 approved and continually inspected maintenance facility equivalent to airline standard, featuring: 

• Complete depot-level overhaul of its P2V airplane fleet, removing each airplane 

from service for over a year, for complete disassembly, inspection and refurbishment. 

• FAA-Approved and monitored AAIP (Approved Aircraft Inspection Program) 

(progressive maintenance). 

• Ownership of original Lockheed P2V engineering drawings and specifications to 

assure repair to original new standards. 

• Ownership of original Curtis-Wright engineering drawings to return overhauled 

parts to original specifications. 

• Ownership of original Westinghouse J–34 turbojet engine drawings along with 

the ownership of the original Westinghouse Type Certificate. Engines repaired 

and remanufactured to original type-certificate data sheet specifications 

(TCDS). 

• Ownership and design authority for Supplemental Type Certificates for the R– 

3350 reciprocating engine, the J–34 turbojet engine and the fire retardant tank. 

• Ownership of FAA-Approved Field Approval, modifying the P2V airplane for operation with spoiler/speedbrake. 

• Full FAR Part 145 Repair Station certification and continual FAA oversight for 

the aircraft maintenance program, including Part 145 certification on the Curtis-Wright R–3350 engine with all special tooling comparable to the original 

manufacturer’s standards; and Part 145 certification for the Hamilton-Standard 

24260 propeller and special tooling to the original manufacturer’s specifications. 

This FAA Part 145 certification includes a dedicated FAA-Approved Inspection 

Manual, as approving standard to return each repaired airplane and component 

to airworthiness status. 

30 

33 Non-destructive inspection and testing personnel qualified to Level II magnetic particle, and 

other NDI protocol 34 It was common practice and government-encouraged in previous years that pilots fly and 

fix their airplanes at remote firebases, as a cost saving measure. Neptune initiated the nowaccepted practice of providing ground support and dedicated mechanics to repair airplanes after 

the missions, allowing aircrews to rest after flying all day. 35Part 61.58 Pilot in Command proficiency check; Operation of aircraft requiring more than 

one flight crewmember 

• Full inspection protocol in place to comply with problem areas as defined by airworthiness directives, with dedicated NDI personnel.33

• Overhaul protocol that includes complete rewiring, new instrument panel, new 

plumbing and tubing throughout, completely overhauled engines, stripping, 

total corrosion examination and repair, and finally, repainting. 

• Complete replacement of retardant tanks on set cycles to assure each airplane 

has virtually a new tank. 

• A complete in-house engine overhaul facility, assuring newly manufactured engine condition and performance. 

• 4-axis CAM (computer assisted manufacturing) milling for parts no longer manufactured, assuring tolerances to new standards for 40+-year-old airplanes. 

• Bar-codes and computer-tracked supply and part supply. 

• Newly manufactured tires in original molds. 

• Each mechanic in the maintenance facility, or the field, is equipped with their 

own company laptop, containing fully computerized maintenance and parts description. 

• Formalized and recurrent classroom training for mechanics, (only required to be 

a standard for Part 145 facilities in the future by the FAA) 

• Adherence to a Master Minimum Equipment List (MMEL), originated by Neptune, and previously unavailable from Lockheed or the military operator, the 

U.S. Navy. 

• Field mechanics, dispatched with every tanker airplane deployment, completely 

supplied with common parts and consumables, have the capability of digitized 

photograph transmissions back to the Neptune Missoula facility with every 

anomaly or problem on which he needs technical advice.34

Human Performance: An Important Factor in Neptune’s Aerial Tanker 

Operations 

Notwithstanding the state of the Neptune Aviation maintenance facility at Missoula, the management recognized crew performance as the key to safe operations 

over 10 years ago. Regretfully, across the industry lessons have been learned from 

the loss of aircrews, time and time again through human failure. While the aerial 

tanker industry has always boasted of pilots with excellent airmanship and piloting 

skills, the loss of tankers through the years repeatedly were known to be from poor 

pilot decision-making in a stressful environment, fatigue-related loss of situational 

awareness, and the total ignorance of multi-pilot cockpit coordination (CRM skills). 

Neptune Aviation Services, again, has provided benchmarks for the international air 

tanker community. Its advances include: 

• Installation of air-conditioned cockpits (not even available in the original U.S. 

Navy models) to reduce environmental stress and fatigue for flight crews. 

• Year-round salaried pilots, avoiding seasonal lay-offs, providing a higher level 

of experience and currency. 

• Annual formalized Cockpit Resource Training at Dallas, Texas, for both captains and copilots. 

• Annual pre-season crew refresher training including classes on weight and balance, airplane charts and performance, airplane systems, IFR procedures, approaches, clearances, and emergency procedures. 

• Annual full-motion heavy airplane simulator training 

• Unlimited training hours to enhance currency and proficiency. 

• Strict check flight standards to FAR Part 121 (airline) proficiency each year. 

• Each captain must pass an FAA Part 61.58 35 checkride in the actual airplane 

(not simulated), prior to the fire season, before approval for each year’s operations. Copilots, as well, must pass FAA Part 61.55 checkrides in the actual 

company P2V airplanes. 

31 

36 NAVAIR P2V Aircraft Operating Limitations, allowed for bank angles up to but not exceeding 60 degrees, and operation in turbulence up to and including moderate to the maximum 

speed of 350 knots below 3000 feet altitude. 37P2V pilots continually flew ‘‘MAD-traps’’ (magnetic anomaly detection) of submarines in 

tight circles and figure 8s, sometimes in 45 or more angle-of-bank turns, hours on end. Likewise, 

‘‘Sonabouy’’ patterns were flown, in even tighter turns to relocate listening devices dropped in 

the ocean to detect submarine sounds. 

Neptune’s Aerial Tankers Are Truly IFR-Capable 

It is especially noteworthy to examine the changes to the navigation and communications capabilities of airplanes in the Neptune fleet. In the past, and presently 

continuing with other operators, aerial tanker airplanes and their operating aircrews rarely enjoyed even minimum capability to fly in instrument meteorological 

conditions (IMC). Many air tankers have been lost, or nearly lost, when they encountered instrument conditions. Improvement to cockpit instrumentation is the 

standard for Neptune’s P2V airplanes. IFR (instrument flight rule) improvements 

go far beyond original equipment and make the P2V airplane and operating crews 

truly capable of flying in instrument conditions, returning to an airport with weather at field minimums. In the past, aerial tankers, or the flight crews, rarely had 

this capability. Neptune IFR improvements include: 

• Annual classroom recurrent training in IFR and approach procedures. 

• Airline (FAR 121) level checkrides annually. 

• Full motion heavy airplane training annually on instruments 

• Annual CRM, cockpit resource management, training on IFR procedures, cockpit and ATC communications. 

• Each operational P2V equipped with MMEL-required state-of-the-art instrumentation and navigation equipment including, but not limited to, Garmin 

GNS–530 satellite navigation and communication (COMM/GPS) coupled to 

Ryan 9900BX TCAD instrument/display; King Nav/Comms, King Navigation 

Receivers and Mode C (altitude reporting) transponders. 

The C130 and the P2V Aerial Tankers 

Wing structures of the P2V and the C130 series airplanes are simply not the 

same. While the C130A and the P2V model airplanes both originate at a Lockheed 

facility, significant differences exist in the design of their structures. Essentially, the 

wing of the P2V has a much stronger rib design, utilizing ‘‘box-type’’ stringers, 

placed span-wise between the 15 percent bulkhead chord and the rear 60 percent 

bulkhead chord. While both the P2V and the C130 series have box-constructions, the 

C130A internal skin surface utilizes aluminum angle braces, single-row riveted on 

the undersurface. Fractures found in the Pearblossom and Walker accident analysis 

demonstrated that the single row of rivets likely became stress risers and points of 

fracture propagation as the wing root was exposed to tension and compression 

flexing. 

Moreover, Neptune Aviation Services’ maintenance facility in Missoula conducts 

X-ray inspection of wing components annually or every 325 cycles (whichever comes 

first) and removes and inspects the wing stress panels every two years for visual 

inspection. Neither Navy records nor civilian databases have any recorded instance 

of an in-flight wing failure of a P2V. 

The C130 and the P2V: Different Missions, Different Strengths 

Likely, the original requirements by the U.S. Navy, and subsequent structural design by Lockheed, took into account the fundamental differences in mission assignment. The P2V was designed to fly with extended fuel loads and bomb loads (including heavy nuclear weapons) at weights of 80,000 pounds, and bank angles to 60 degrees.36 (Neptune Aviation Service limits its P2V airplanes to a 71,000-pound ramp 

weight.) While the later C130A airplane was designed as a transport, the SP2V 

(original Navy designation) was designed for anti-submarine warfare (ASW) requiring the aircraft to be flown continuously in tight, high G-loaded, turns at low level 

over the ocean, in the worst of weather.37 In fact, Navy operating limitations allowed for maximum speed (350 knots) in moderate turbulence, and recommended 

a reduction to between 150 to 190 knots in severe turbulence. 

Other performance limitations underscore the huge differences between the P2V 

and the C130. Beside a 45-degree bank angle limitation, the C130 series should not 

be slipped or skidded, and while it can be done by a pilot with caution, he risks 

losing control due to a phenomenon called ‘‘fin stall’’ wherein the vertical stabilizer 

(as a vertical wing) actually stalls and aircraft control is lost as it rotates about its 

vertical axis. Similarly prohibited in the C130 series is the use of asymmetric power 

32 

38 Change 1 to NAVAIR NATOPS 01–75EDA–1, Part 4 39Prior to 1994 the NTSB had no statutory authority to investigate mishaps in these ‘‘public 

use’’ aircraft, and even since that time, have spent little time or resources in the investigations 

following the loss of these large airplanes. The NTSB itself should ask why its own investigation 

into the tragic C130A loss at Pearblossom was so blatantly flawed, publishing unsupportable 

conditions, except in the emergency loss of an engine. The P2V airplane’s Navy limitations actually allow ‘‘slipping or skidding’’ as required, and the use of asymmetric 

power conditions or for landing approaches, skidding or slipping at indicated airspeeds up to 230 knots.38

Effective Airworthiness Programs are Alive and Well 

The NTSB Safety Recommendation at page 7 presents a finding that, if meant 

to apply to the aerial tanker fleet as a whole, is simply wrong. The Safety Board’s 

statement is fundamentally flawed by the lack of full knowledge and review of existential conditions in the community. Stating, 

‘‘Therefore, it is apparent that no effective mechanism currently exists to ensure 

continuing airworthiness of these firefighting aircraft. Specifically, the maintenance and inspection programs currently being used do not adequately account 

for the increased safety risks to which these aircraft are now exposed as a result 

of their advanced age and their more severe stresses of the firefighting environment’’. (continuing) ‘‘The Safety Board notes that the inspection and maintenance 

programs used by Hawkins and Powers for the C130A and the P4Y accident airplanes, which were based on military standards, included general visual inspections of cracks but did not include enhanced or focused inspections of highly 

stressed areas, such as the wing areas, where fatigue cracks that lead to the accidents were located.’’ 

Without fully knowing the scope of the Safety Board’s review of the aerial tanker 

industry, it is hard to believe the NTSB would suggest in its Safety Recommendation that the maintenance limitations and inspection shortcomings revealed in the 

C130A accidents and the P4Y accident should be applied to other FAA approved and 

state-of-the-art maintenance facilities. Specifically addressing the Safety Board’s 

concerns, certainly as it applies to Neptune Aviation Services, readily shows precisely the opposite findings: 

• Neptune’s P2V airplanes are not exposed by ‘‘advanced age.’’ Manufacturers 

drawings and specifications as well as full-computer aided replication of worn 

parts ensures that the airplanes are likely every bit as good as new production 

airplanes. 

• Neptune’s P2Vs are electronically, magnetic-particle and X-ray inspected especially in high stress wing areas. 

• Neptune Aviation Service does possess the engineering expertise necessary to 

conduct studies and engineering analysis to define the stresses associated with 

the firefighting operating environment and to predict the effects of those 

stresses on the operational life of the airplane, and its components. State-of-theart CAM equipment to replicate to OEM specifications, and engineering personnel, and the ownership of full OEM airframe and component drawings and 

engineering data, place this engineering and maintenance facility at the forefront of the aviation industry, including Part 121 certificate holders. 

• Neptune’s maintenance and inspection programs, quality assured by an FAAApproved and reviewed Part 145, Quality Assurance Airworthiness Program 

does, in fact, ensure continuing airworthiness. 

• The P2V design and Neptune’s professional operational oversight ensures that 

the aircraft never exceeds its reduced G load limitations, notwithstanding the 

fact that their aircraft likely approach original manufacturer’s design load limitations. 

The Need for a Full Safety Study of the Industry and Government 

Oversight 

In summary, the continuing airworthiness of aerial tankers and their reliable 

service to the wildfire suppression efforts of the various government agencies can 

be assured though the efforts of professional and proactive operators such as Neptune Aviation Services. To group any or all of the aerial tanker operators into one 

classification and issue failing grades does a disservice to the industry as a whole 

and reflects poorly on the review or analysis done by the Safety Board. 

Recognizing the NTSB to be among late arrivals 39 to study the problems and offer 

solutions to the aerial tanker community, it is long overdue that the Safety Board, 

33 

and unscientific conclusions. Eight years had to pass and other lives had to be lost before the 

Safety Board acknowledged what many professionals knew about the more probable cause of 

that accident. 

within its 49 CFR 800 authority, undertake a Special Study of the entire industry 

and governmental oversight, to examine not only the limitations and needs, but the 

achievements of essentially a reliable, self regulating, self sustaining, and creative 

sector of the U.S. aviation industry. 

LARGE AIR TANKER AIRWORTHINESS AND MODERNIZATION

Issue Paper Developed by Ronald F. Livingston—May 16, 2004 

This document describes the issues involved with the decision to terminate the 

U.S.D.A. Forest Service and Department of the Interior large air tanker contracts. 

Part I offers a brief recommended solution to the issue and Part II is supporting 

data with a more detailed description to substantiate the recommended solutions in 

Part I. 

Part I—Recommended Solutions 

Contract Termination 

Reinstate all 33 large air tanker contracts effective immediately based on the fact 

these aircraft were required contractually to have in-depth inspections, as recommended by Sandia National Laboratories last year (2003), prior to being returned 

to service as large air tankers. 

NTSB Recommendations 

Notify the NTSB that the U.S.D.A. Forest Service and Department of the Interior 

have responded to Recommendation A–04–29 3) by developing a Structural Health 

Monitoring Program for large air tankers designed to collect loads and strain data 

in the wild land firefighting environment. Three large air tankers are currently 

equipped with recording equipment. 

Sandia National Laboratories 

Provide additional funding to Sandia National Laboratories Structural Health 

Monitoring initiative so that data obtained from this years fire season can be evaluated and applied to the current large air tanker fleet as well as modernization initiatives to comply with NTSB Recommendation A–04–29 in its entirety as well as 

A–04–30. 

U.S.D.A. Forest Service and Department of the Interior Contracting 

Appoint an independent commission made up of private sector executives and government contracting personnel to evaluate and develop a contracting mechanism 

that will allow for modernization of the large air tanker fleet by offering incentives 

for bringing new aircraft into the fleet. 

Establish a contract that is for five to seven years with penalty clauses for early 

termination by either party. This will allow business owners to obtain necessary 

funding for modernization projects. 

Require that all large air tanker operators be required to be certified as Repair 

Stations under 14 CFR Part 145 with limited ratings for the type of aircraft they 

operate as a large air tanker to include airframe, engine(s), and propeller(s). Those 

operators that are not currently certified Repair Stations with these limited ratings 

would have to start the certification process for these limited ratings immediately. 

Install Structural Health Monitoring equipment on all large air tankers utilized 

in wild land firefighting operations with a Structural Health Monitoring program 

capable of monitoring the strains and loads of each flight with established inspection criteria if pre-established limits are exceeded. This should be in place by the 

2005 contract inception. 

Federal Aviation Administration 

Develop a Memorandum of Understanding between the contracting agencies, 

U.S.D.A. Forest Service and Department of the Interior, and the regulatory agencies 

FAA Flight Standards and Aircraft Certification stating the responsibility for airworthiness and compliance with FAA Approved Flight Manuals and FAA Approved 

Inspection Programs regardless of the use of the aircraft. 

34 

Government Agencies Cooperation 

A National Air Tanker Working Group and steering committees for the three 

models of large air tankers are under development. Finalize the charters for these 

groups. Establish a realistic time line for the final charters wording and subsequent 

signatures by all participants. Schedule a time for the first working meeting dealing 

with issues as established in each charter. 

Part II—Supporting Data 

Contract Termination 

The U.S.D.A. Forest Service and the Department of the Interior on May 10, 2004 

came to the decision to terminate the contracts of 33 large fixed-wing air tankers 

based on the following statements from the NTSB Recommendation report dated 

April 23, 2003: 

‘‘it was apparent that no effective mechanism currently exists to ensure the continuing airworthiness of these firefighting aircraft.’’ 

The U.S.D.A. Forest Service and the Department of the Interior continue to operate approximately 725 other aircraft both fixed-wing and rotary-wing in the firefighting environment. What mechanism currently exists to ensure the continuing airworthiness of these 725 firefighting aircraft? 

The NTSB report also indicated that a complete history of maintenance and inspection records are not available for many of the military surplus large air tankers. 

This may have been true for the large air tankers that had the in-flight breakups 

described in the NTSB report and the NTSB discovered this during their investigation however, when Sandia National Laboratories conducted their evaluation of the 

large air tanker operators early in 2003, not having a complete history of maintenance and inspection records was not among their findings. 

The average age of the large air tanker fleet is 48 years with some more than 

60 years. 

Many of the 725 remaining aircraft are close to the same age as the large air tankers such as the Sikorsky helitanker S–64 & CH–54. These aircraft went into production in 1962. Some of the medium size helicopters such as the Bell 205 first flew in 

1961. With the exception of a few aircraft, the entire firefighting fleet of aircraft is 

old and not limited to just the large air tankers. 

NTSB Recommendations A–04–29—31 

Role of the Forest Service and Department of the Interior 

‘‘The Safety Board is aware that the Forest Service has recently embarked on a 

multiyear plan to evaluate and improve the airworthiness of its air tanker fleet, including modification of its maintenance program so that it more closely reflects the 

firefighting mission. The Board supports this initiative and looks forward to learning more about the progress and results of this plan.’’ 

With this statement in the NTSB report it is clear the Board did not intend to remove the large air tankers from service. The Board was aware that initiatives were 

underway to improve the inspection programs and the Board desired to learn more 

about this undertaking not to ground the large air tanker fleet. 

NTSB Recommendation A–04–29—Part 3) the magnitude of maneuver loading and 

the level of turbulence in the firefighting environment and the effects of these factors on remaining operational life. 

This particular portion of NTSB Recommendation A–04–29 is currently being conducted. Three large air tankers are currently equipped with Structural Health Monitoring equipment. The Structural Health Monitoring equipment installation was 

started in the summer of 2003. The three aircraft are a DC–7 (Tanker 66), a P2V 

(Tanker 48), and a P–3 (Tanker 25). Tanker 66 (the DC–7) was operable by the fall 

of 2003 and collected a small amount of data from the California fires. This data 

will be evaluated when funding continues for this project. Tanker 25 and Tanker 48 

finalized their installation during the winter are operable and ready to collect data 

during the 2004 fire season. This equipment will measure the g-loads and strains 

the large air tankers are subjected to in the wild land firefighting environment. The 

Structural Health Monitoring equipment will collect data daily and the flight crew 

will download this data daily via the Internet and send the data to a computer managed by Sandia National Laboratories. Sandia National Laboratories personnel will 

perform engineering evaluations (NTSB Recommendation—Part 5 of A–04–29) and 

compare this data to the airplanes original design intent (NTSB Recommendation— 

Part 1 of A–04–29). NTSB Recommendation Part 2 and 4 of A–04–29 will be used 

to revise the FAA Approved Inspection Programs. FAA Aircraft Certification Service 

35 

has requested access to this information for future certifications of large air tankers 

as well as any other group of aircraft subject to low-level firefighting operations. No 

other group of aircraft involved in wild land firefighting operations is currently conducting this type of program. 

Additional funding will be required to conduct in-depth engineering analysis to 

comply with NTSB Recommendation A–04–29 and A–04–30. 

A separate large air tanker operator that operates two Lockheed C–130A aircraft 

has the same Structural Health Monitoring equipment installed. One of the C–130A 

aircraft collected some data from wild land firefighting operations conducted in Europe in 2003. This operator has formed a group called the Low Level Loads Working 

Group. The FAA Aircraft Certification Offices in Los Angeles and Atlanta personnel 

are members of this group with the purpose of implementing an appropriate and realistic, economical Structural Health Monitoring program for special mission aircraft 

used in the low level environment. 

Recommendation A–04–30—Require that aircraft used in firefighting operations be 

maintained in accordance with the maintenance and inspection programs developed 

in response to Safety Recommendation A–04–29. 

Contractually the large air tankers are required to maintain their aircraft in accordance with an FAA Approved Inspection Program. As stated above, the FAA Approved Inspection Program will be revised once the Structural Health Monitoring 

data has been analyzed compared to the original design intent, and all flight hours 

in all operations considered. 

Recommendation A–04–31—Hire personnel with aviation engineering and maintenance expertise to conduct appropriate oversight to ensure the maintenance requirements specified in Safety Recommendation A–04–29 are met. 

This has been accomplished in part by contracting with Sandia National Laboratories to evaluate the current large air tanker operators (Sandia has qualified engineers assigned to this project). Mr. Ron Livingston, Large Air Tanker Program Manager Airworthiness and Modernization, was hired to provide management oversight 

for Sandia National Laboratories and to ensure the recommendations made by 

Sandia National Laboratories were completed as they pertain to airworthiness issues 

and to evaluate modernization initiatives for suitability to wild land firefighting operations. 

Mr. Livingston previously worked for the FAA Flight Standards as an Airworthiness Safety Inspector and is currently a Designated Airworthiness Representative, 

Mechanic with Airframe and Powerplant Ratings, and Inspection Authorization. 

Sandia National Laboratories 

Sandia National Laboratories was contracted in December of 2002, after the Blue 

Ribbon Panel findings were released, by the U.S.D.A. Forest Service to support the 

Forest Service Air Tanker Modernization Program: 

Task number one—2003 evaluate the existing large air tanker operators FAA Approved Inspection Programs for applicability to aging aircraft issues and the wild 

land firefighting environment. 

Sandia National Laboratories visited every large air tanker operator starting in 

February 2003 and ending in April of 2003. Sandia National Laboratories evaluated 

the following areas FAA Approved Inspection Programs, operator facilities, maintenance personnel experience, training, and qualifications, and Non Destructive Inspection capability. 

Sandia National Laboratories wrote three draft reports based on these evaluations. 

The reports were separated by the model of aircraft. One report for the Douglas DC– 

4, 6, & 7, one report for the P2V aircraft, and one report for the P–3. These reports 

contained recommendations. Some recommendations were for the U.S.D.A. Forest 

Service, some recommendations were for the particular make and model of aircraft, 

and other recommendations were specific to the particular large air tanker operator. 

The draft reports were submitted to the U.S.D.A. Forest Service and the FAA Aircraft 

Certification Office in Washington, D.C. for their review and comments. 

Basically the Sandia National Laboratories recommendations included performing 

depot level maintenance with particular attention paid to the critical structural areas 

in the wing box and wing attaching areas. Other recommendations were to revise the 

FAA Approved Inspection Programs to include these inspections on a more frequent 

basis and to include a section in the FAA Approved Inspection Program covering inspection requirements for overweight landings, and in-flight overload conditions. 

The U.S.D.A. Forest Service incorporated a contract modification to require all 

large air tanker operators to comply with the Sandia National Laboratories recommendations. The U.S.D.A. Forest Service paid for the inspection costs but the 

36 

large air tanker operators were responsible for the costs incurred for repairs that 

would be required after the inspection. 

All large air tanker operators complied with these requirements and were inspected 

in-depth only one year ago. Some of the large air tankers were delayed in going on 

contract because of these enhanced inspections. The large air tanker operators revised 

their FAA Approved Inspection Programs per the recommendations submitted by 

Sandia National Laboratories. 

Task number two—2004 Collect data from the Structural Health Monitoring program, develop database, and begin engineering evaluations. Additional task is to review modernization program. 

Sandia National Laboratories statement of work extends on into 2006 for continued engineering support, operational assessment, system safety, fleet management 

improvements, training, and strategic planning of the large air tanker fleet. 

U.S.D.A. Forest Service and Department of the Interior Contracting 

Large Air Tanker Operators must be currently certified under Federal Aviation 

Regulation (CFR) 14, Part 137 (Agricultural Aircraft Operations). 

This is an operating rule that allows aircraft conducting agricultural operations 

to deviate from the provisions of 14 CFR Part 91 General Operating and Flight Rules 

while conducting dispensing activities directly affecting forest preservation. 

The FAA Flight Standard District Office issues this certification and is responsible 

for conducting inspections on agricultural operators within their district. The current 

FAA Flight Standards national policy is to inspect 1/10th of the agricultural operators in their district annually. 

A Federal, State, or local government conducting agricultural aircraft operations 

with public aircraft need not comply with this subpart (14 CFR 137.11(c)). 

Large Air Tankers shall have been issued a Standard or Restricted Airworthiness 

Certificate. 

Airworthiness Certificates are issued by the FAA and are required for civil aircraft by 14 CFR Part 91.203. Before an aircraft can be issued an airworthiness certificate the aircraft must have been issued a Type Certificate issued by the FAA. The 

Type Certificate is a formal description of the aircraft. The Type Certificate lists the 

limitations and information required for Type Certification. In order to issue an airworthiness certificate the FAA inspects the aircraft to insure the aircraft meets the 

requirements on the type certificate and is in a condition for safe operation. 

The current contract requires that large air tankers have an FAA Approved Inspection Program in accordance with 14 CFR Part 91.409(f)(1). 

14 CFR Part 91.409(f)(1) is under Subpart E of 14 CFR Part 91 which is entitled 

Maintenance, Preventive Maintenance, and Alterations. 14 CFR Part 91.401 Applicability (a) states ‘‘This subpart prescribes rules governing the maintenance, preventive 

maintenance, and alterations of U.S. registered civil aircraft operating within or 

outside of the United States.’’ 

Federal Aviation Administration 

The FAA is responsible by law to promote safety of flight for civil aircraft in air 

commerce. 

FAA Aircraft Certification Service is responsible for issuing Type Certificate Data 

Sheets. Flight Standards is responsible for issuing Airworthiness Certificates, approving inspection programs for large air tankers, and for issuing Operating Certificates under 14 CFR Part 137 for Agricultural Aircraft Operators. 

According to the definition for public aircraft the large air tankers are considered 

public aircraft because of the governmental function of firefighting and only the U.S. 

Government uses the aircraft. 

The FAA Flight Standards understands these aircraft are civil aircraft during 

the period when the aircraft are not on contract with the U.S.D.A. Forest Service or 

Department of the Interior. However, FAA Flight Standards feels it does not have 

any responsibility during the time the aircraft are on contract and that the aircraft 

are public aircraft and the FAA Flight Standards is concerned that during the contract period they do not know how the aircraft are operated and maintained. 

The fact of the matter is that the aircraft are operated in accordance with the Approved Flight Manual and the aircraft are maintained in accordance with the Approved Inspection Program. This is a contractual requirement. 

There should be a Memorandum of Understanding between the U.S.D.A. Forest 

Service and the Department of the Interior that states the large air tankers will be 

operated and maintained in accordance with their Approved Flight Manual and Approved Inspection Program respectively during the contract period when the large air 

tankers are used for firefighting operations. 

37 

Government Agencies Cooperation 

A National Air Tanker Working Group is being formed at the national level which 

membership consists of FAA Aircraft Certification, FAA Flight Standards, U.S.D.A. 

Forest Service, Department of the Interior Bureau of Land Management, Air Tanker 

Board, P2V Steering Committee, Douglas Steering Committee, P–3/L–188 Steering 

Committee, Sandia National Laboratories, Low Level Loads Working Group, and 

Transport Canada. A charter is currently under development to be approved by all 

participants. 

The National Air Tanker Working Group—Certification and airworthiness will 

support the selection, certification, alteration, and continuing airworthiness of large 

fixed-wing air tankers used to support wild land firefighting operations. 

Steering Committees have been organized for three groups of aircraft that are 

currently being operated as large air tankers. They are Lockheed P2V, Douglas, and 

P–3/L–188. Charters for these committees are currently being developed and will be 

approved by all participants. 

A meeting was held at the Los Angeles Aircraft Certification Office with all of the 

operators of P2V aircraft, FAA Aircraft Certification, FAA Flight Standards AFS– 

300, FAA Flight Standards Principal Maintenance Inspectors, FAA Flight Standards 

Aircraft Evaluation Group, Sandia National Laboratories, U.S.D.A. Forest Service, 

and Department of the Interior Bureau of Land Management. 

These committees are a collaborative effort led by the large air tanker operators 

with representation from the FAA, USDA, and DOI, whose main goal is to ensure 

the continued airworthiness of the large air tanker fleet. Their main tasks will be 

to review FAA Approved Inspection Programs, Identify In-Service Problems and Solutions, and Serve as a Focal Point for all Continued Airworthiness Issues on the 

large air tanker aircraft. 

Mr. TIMMONS. Thank you, sir. 

I would like to address a number of issues today that my colleagues here and fellow panel members have discussed, one being 

the NTSB safety recommendations, the termination for convenience 

of our contracts with the Department of Agriculture, and the state 

of current FAA oversight on the local level. 

On April 23, 2004, the NTSB released safety recommendations 

concerning the airworthiness of the current airtanker fleet. This 

was a flawed document. It was lacking in any due diligence in its 

research to determine the capabilities of the airtanker industry as 

it stands currently. They were either unaware of the work conducted by the Sandia National Labs or they never bothered to contact them. They were unaware that the U.S. Forest Service had 

hired an airworthiness program director. The only operator they investigated was the one who had suffered the tragic loss of two 

airtankers. No other operators were contacted. Yet the NTSB made 

wide statements concerning the industry’s capabilities and procedures in maintaining aircraft. 

They were unaware that there are operators that have full OEM 

support, manufacturing support. Neptune is one. We have an 

agreement with Lockheed that provides full engineering data support for our equipment. 

While I cannot address individual operators’ procedures, I can 

discuss what we do at Neptune. It is my assumption that other operators have similar maintenance programs in place. Neptune has 

all aircraft records detailing their full operational life of their aircraft, as do other operators. In the case of Neptune, we have full 

engineering data for the production of the P2V that we acquired 

from Lockheed a few years ago. This allows us to manufacture 

parts and equipment to new standards. 

Neptune’s aircraft are put through a full airframe depot-level inspection once every 8 years, in addition to its yearly heavy airVerDate Nov 24 2008 08:13 Jan 03, 2018 Jkt 075679 PO 00000 Frm 00041 Fmt 6633 Sfmt 6601 S:\GPO\DOCS\27958.TXT JACKIE
38 

frame inspection that occurs yearly. Since 2002, our wings and 

carry-throughs have received a full engineered damage tolerance 

assessment, and the FAA has approved the inspection procedures 

addressed from that assessment. 

In addition, our wings are given an expanded depot-level inspection every 2 years. This includes X-ray, dye penetrant, and visual 

inspections. All components that can be removed—all components 

are removed and are inspected. This includes stress panels, access 

panels, leading edges, fuel tanks, retardant tanks, and wing ribs. 

All components are inspected and replaced, if needed, with parts 

manufactured to new standards. 

To address accumulated fatigue issues, we use an accelerated 

maintenance program. For every hour that our aircraft fly, we put 

3 hours on that airframe in terms of our maintenance program. So 

a one to three ratio. This is precisely the program that Air Transport Canada uses for their airtanker maintenance programs and 

certification. Yet the U.S. Forest Service is still discussing bringing 

Canadian aircraft south of the border to fight fire in the U.S., utilizing the exact same procedures for accumulated fatigue. 

Independent investigators have examined our operation many 

times and they have stated that Neptune Aviation’s maintenance 

is equal to or exceeds 121 standards—airline standards. I am sure 

that other operators of heavy airtankers are operating at the same 

level. 

There seems to be quite a bit of confusion concerning civil versus 

public aircraft. It is a grey area that has been debated for over 50 

years now. It was truly designed for government-owned and operated aircraft. Yet now we have the government-leased aircraft included into that category, aircraft that the government truly does 

not have any operational control over. 

I know that the U.S. Forest Service has expressed concern for liability reasons with relation to heavy airtankers. However, the 

U.S. Forest Service has only been successfully sued once in relation 

to a heavy airtanker accident. In that one accident, it was a U.S. 

Forest Service lead plane aircraft that collided with an airtanker 

on short final in Ramona, California, and the U.S. Forest Service 

aircraft was deemed at fault. In all other cases, the courts have 

ruled that it is the companies that operate these aircraft that are 

responsible for maintenance and flight training and the flight 

crews are responsible for exercising good command judgment. 

In every other case the U.S. Forest Service has been involved 

with, they have argued that these aircraft are civil use aircraft, not 

public. If you go back through the court records and you look at the 

testimony given, you will find that the Department of Agriculture 

has argued that these aircraft are civil use. Now we are hearing 

a different argument. If the question is truly liability, there are 

ways to address these concerns through contracting language. 

Our aircraft are certified as civil aircraft. Yet during the 100 

days we are on contract with the U.S. Forest Service, the national 

office of the FAA considers us public use aircraft. Yet at no time 

are we removed from FAA oversight. Even during the fire season, 

we are under constant supervision by the FAA. We can do nothing 

with those aircraft without FAA approval. 

39 

We are all required to hold civil airworthiness certificates for our 

aircraft. We are required to adhere to all FAA regulations throughout the year. Our maintenance programs and procedures are approved and continually evaluated by the FAA year-round. The FAA 

has been providing oversight to the airtanker industry all along. It 

seems to me it would be a small step for the FAA to say that they 

are conducting some level of oversight of these operations, since in 

the real world that is precisely what they are doing. 

I have been informed yesterday that the FAA has stepped up to 

the plate by providing recommendations concerning how to inspect 

aging aircraft, providing inspection procedures and knowledge that 

are rooted in their experience with aging aircraft. I have also been 

told that the U.S. Forest Service has taken these guidelines and expanded what the FAA recommends by adding an additional third 

recommendation, that they have done so without consulting the 

FAA. The FAA did not require this third recommendation, nor did 

they know about it, and from what I have been told are in disagreement over it. 

This third recommendation is to test for widespread fatigue damage, WFD. It is a predictive tool based on data gathered in the 

flight environment. Without that data, there is no way to predict 

widespread fatigue damage. The industry, in conjunction with the 

Sandia National Labs, were in the process of accumulating this 

data at the time of the termination of these contracts. It is a shame 

that by terminating these contracts this flow of data has been interrupted. 

It should also be clear that there is no way to test for widespread 

fatigue damage. It is a predictive tool, not something you can test 

for. There is no accepted procedure to do so with our current technology; that there is no data to support these new inspections, yet 

the U.S. Forest Service, a non-aircraft certifying agency, is requiring that this be a part of any inspection to return these aircraft to 

service. 

As I remember, one of the reasons that the U.S. Forest Service 

terminated these contracts was that they lacked the experience and 

the people to oversee the airworthiness concerns addressed in the 

NTSB safety recommendations. Yet, somehow they have accumulated this expertise and decided that they needed an additional inspection for widespread fatigue damage, one the FAA, the certifying agency for aircraft, deemed unnecessary and unattainable 

without flight data. 

The CHAIRMAN. Mr. Timmons, I would like for you to summarize 

since we are over time. 

Mr. TIMMONS. No problem, sir. 

It is my view that this is nothing but a war of attrition. The U.S. 

Forest Service will continue to raise the bar just high enough that 

the industry cannot accomplish the task or it is not economically 

achievable to accomplish this task. And if the industry accomplishes the task, it will be assigned a new one. After all, the industry has either accomplished or exceeded every task it has been assigned since the tragic loss of aircraft in 2002. 

Thank you. 

[The prepared statement of Mr. Timmons follows:] 

40 

PREPARED STATEMENT OF MARK TIMMONS, OWNER AND CHIEF EXECUTIVE OFFICER, NEPTUNE AVIATION SERVICES

Mr. Chairman and Members: 

I am the owner and Chief Executive Officer of Neptune Aviation Services, a 

former contractor with the Department of Interior and Department of Agriculture 

to provide Heavy Airtankers for wildland fire suppression. Prior to the Termination 

for Convenience by the Department of Agriculture of our contacts on May 10, 2004 

we had seven (7) aircraft contracted for the upcoming wildland fire season, five full 

time contracts and 2 exclusive use spares. We are based in Alamogordo New Mexico 

and Missoula Montana, with our corporate offices in Missoula Montana. We employ 

one hundred and (100) people of whom 35 are A&P mechanics and 8 and IA’s, and 

nineteen flight crewmembers. Our physical plant consists of a hangar and shop facilities in New Mexico that allows us to put one (1) of our aircraft inside at a time 

for maintenance and a retardant tank manufacturing facility. In Missoula, we have 

a facility where we can put two aircraft inside for maintenance at one time; a full 

machine shop and engine overhaul facility. Neptune Aviation has been identified by 

many outside sources as having facilities and maintenance procedures and process 

that are equal to, or exceeding the best of the FAR Part 121 (airline) standards (see 

Herlihy’s Submission To The Oversight Hearing on Firefighting Preparedness: Are 

we ready for the 2004 Wildfire Season on May 13, 2004). Neptune Aviation Services 

is certificated as a FAA Part 145 Repair Station No. N16R011N with the following 

ratings: Airframe Class 1&3, Limited Airframe for the Lockheed P2V–5 and P2V– 

7, Limited Power Plant with Overhaul capabilities for the Curtis Wright R–3350, 

Limited Radio, Limited Propeller with Overhaul Capabilities for the Hamilton 

Standard model 24260, Limited Accessory, Limited Instrument, Nondestructive Inspection, Testing and Processing. Neptune Aviation is in the process of incorporating 

the Lockheed L–188C into the Repair Station operation specifications including the 

Rolls Royce 501–D13 power plant the Aero Products 6440 series propeller. FAA 137 

Commercial Agricultural Aircraft Operations certificate number CILG838C. 

The objective of this testimony is to provide input from an aerial firefighting contractor for heavy airtankers concerning the recent actions of the Department of Agriculture and Department of Interior to Terminate for Convenience their contracts 

with said contractors based on an incomplete and flawed N.T.S.B. Safety Recommendation. An additional objective is to convey to this committee what the industry has done and is doing concerning the NTSB report and the Sandia Laboratories 

report of 2003. Lastly, I would like to address the question of FAA oversight over 

the companies that have historically contracted with the aforementioned mentioned 

agencies. 

Termination For Convenience 

On May 10, 2004 at 14:20 hours Eastern Standard Time, The Department of Agriculture and The Department of Interior notified the contractors of Heavy Airtankers 

that their contracts with their respective agencies would be terminated at 17:00 

hours Eastern Standard Time on May 10, 2004. The means of Notification of Termination of these Contracts was provided by fax, and preceding the notification to the 

companies involved, notification was provided to the press. Thus, the first notification of termination to the companies and personal involved was provided by the 

press, not by the Department of Agriculture and the Department of Interior. No personal contact was made by the agencies that terminated these contracts to the companies that were involved. At the time of the termination for convenience many of 

the companies had aircraft and support crews in the field fighting wildland fire. In 

the case of Neptune Aviation, we had two (2) aircraft in the field fighting wildland 

fire; it was unfortunate that these crews had to continue to operate their aircraft 

with the knowledge that they would no longer have a contract at the end of the 

business day. The question of aircrew safety was apparently not a concern in the 

timing of the termination of these contracts. It was a testimony to the quality of 

the aircrews and companies that they finished the day safely fulfilling their contracts and obligations to the very agencies that had terminated their contracts with 

out regard for their safety. 

While it may seem that the Department of Agriculture was taken by surprise by 

the content of the NTSB report, the agencies were in possession of the draft copy 

of the NTSB report for over one (1) year prior to the release of the final draft (testimony by The Honorable Ellen Engleman-Conners during the Oversight Hearing on 

Firefighting Preparedness in U.S. House of Representatives on May 13, 2004). In 

fact the Department of Agriculture was a partner throughout the two (2) year investigative process. We can only conclude, that while not all of the NTSB’s recommendations may have been present in the draft report; the major conclusions 

41 

concerning their findings were present. During this period of the time while, the Department of Agriculture was aware of the draft findings of the NTSB report, they 

were continuing to encourage the operators of the heavy airtankers to modernize 

their fleets by making large investments of capital. On December 10, 2003 in Boise 

Idaho, and again via a telephone conference on April 16, 2004 The Department of 

Agriculture encouraged the heavy airtanker industry to modernize their fleet of aircraft prior to the 2008 contracting period or be in risk of not being awarded any 

future contracts. In fact, Neptune Aviation acquired two (2) L–188 for the purpose 

of modernizing our fleet at a cost of over one and a half million dollars. 

NTSB Safety Recommendation A–04–29 through –33 

While the NTSB Safety Recommendation provided a concise and an accurate evaluation of the two tragic accidents that occurred in 2002, it failed to accurately access the current condition of the heavy airtanker industry, nor did it even attempt 

to determine the changes that had, and are occurring within the heavy airtanker 

industry today. This oversight can only be described as negligent, both in its lack 

of effort and in its scope to determine the current state of the industry, and incompetent in their failure to conduct any type of coherent research on current airworthy 

programs. 

The NTSB either failed to contact or was ignorant of the Sandia National Laboratories detailed study of the airworthiness of the individual aircraft and companies 

involved in the airtanker industry in 2002. Sandia issued draft reports concerning 

each company and their aircraft in 2003 outlining what steps each company needed 

to accomplish in order to maintain the airworthiness of their aircraft. Prior to the 

start of the 2003 wildland fire season, Neptune Aviation Services was in compliance 

with all the recommendations contained in the Draft report, as were all airtanker 

companies. In order to accomplish this all the airtanker companies expended large 

amounts of capital, out of their own pockets, to meet or exceed the recommendations 

of the Sandia Laboratories. The final draft of the P2V Sandia report has been sent 

to the FAA for review and comment is expected to be finalized and released at any 

time. The Final report for the P3A has already been released by the FAA, the reports concerning the DC 4/6/7 are also soon to be released by the FAA. 

The NTSB was either unaware or was not concerned with the fact that The Department of Agriculture had hired a Airworthiness Program Director who was 

tasked with airtanker airworthiness and modernization. The research and recommendations that Ron Livingston had developed and presented was never used in 

the NTSB report. In fact, Mr. Livingston has stated that the heavy airtanker operators and the DOA are in compliance with the recommendations that the NTSB 

makes in its report (see Ron Livingston’s submission to this committee). It is his 

belief that all the 33 large airtanker contracts should be reinstated based on the 

in-depth inspections that were recommended by the Sandia National Laboratories 

in 2003. 

Prior to the release of the NTSB report there was no attempt by that agency to 

determine what each operator’s capabilities were to maintain their aircraft, and 

maintain their aircraft in an airworthy state. The only operator that was examined 

was the operator that suffered the tragic loss of the two (2) aircraft in 2002. Not 

one other operator was visited, evaluated or consulted with. Rather, the NTSB made 

broad generalizations concerning the capabilities of the industry as a whole without 

regard to any due diligence or care for accuracy in the NTSB report. In doing so, 

the NTSB caused significant damage to the reputation of individual operators causing the real potential of future financial damage. This is an example of gross negligence and disregard for the companies that are involved in contracting Heavy 

Airtankers. 

FAA Oversight/Civil vs. Public Aircraft 

The NTSB states in their Safety Recommendation that ‘‘. . . public firefighting 

flights are not statutorily required to comply with most FAA regulations (including 

those pertaining to airworthiness and maintenance) nor, accordingly, are they subject to FAA oversight in those areas. Therefore, the Forest Service and the DOI, as 

the operators of these flights, are primarily responsible for ensuring the safety of 

these operations.’’ In reality this does not reflect current practice with respect to the 

companies that operate heavy airtankers. 

There is a perception at the national level of the FAA that little to no oversight 

is being conducted over the companies that operate heavy airtankers, and the oversight that is provided is nothing more than eye floss. On April 20 and 21, 2004 at 

Long Beach California, during Long Beech P2V Air Tanker Maintenance Steering 

Committee Frank Lieberman of the FAA Washington Office AFS 300 stated that he 

was very surprised and impressed to hear that there were approved Airtanker OperVerDate Nov 24 2008 08:13 Jan 03, 2018 Jkt 075679 PO 00000 Frm 00045 Fmt 6633 Sfmt 6621 S:\GPO\DOCS\27958.TXT JACKIE
42 

ators MEL’s, AIP’s, Maintenance Programs, and STC’s. In addition, he was pleased 

there was so much in the FAA Approved substantiation met for these aircraft. 

Contractually, all contractors that provide aerial firefighting aircraft to The Department of Agriculture and the Department of Interior are required to possess U.S. 

Airworthiness Certificates and the operators must have Code of Federal Regulations 

(CFR) Part 137 Agricultural Operating Certificates by the FAA. In order to acquire 

an Airworthiness Certificate the operator must be in position of an FAA issued Type 

Certificate (TC) under FAR 121 that will specify operating limitations and maintenance requirements. 

Having been issued TC’s, Airworthiness Certificates, Pilot Certificates, Mechanic 

Certificates, and 137 Operating Certificates, the FAA is responsible for evaluating 

and determining that applicable regulations are adhered to. These regulations include Title 14, CFR’s and determining what applicable regulations are adhered to. 

These regulations include Title 14, CFR’s 21, 25, 39, 43, 45, 47, 61, 65, 67, 91, 

137 and in some cases 145. In order to determine regulatory compliance status of 

the operators, field inspectors are assigned inspection items that must be accomplished each year, in the same fashion as they do with CFR 135 and 121 certificated 

air carriers. The FAA’s authority to perform the inspections cannot be avoided by 

the operator and are not affected by Department of Agriculture or Department of 

Interior decisions regarding air tanker operators. In reality this oversight continues 

into and during the wildland fire season. At no time are Neptune Aviations aircraft, 

as well as other operators are removed from FAA supervision. 

In order to resume operations in 2002 after the tragic accidents each aircraft was 

required to undergo extensive inspections and repairs that were approved by the 

FAA. This also included a continuing airworthiness program for each aircraft and 

the wing structures specified in the AD (Airworthiness Directive) that was issued 

by the FAA. Adherence to this airworthiness program is under the oversight of the 

FAA. 

While the debate continues on the national level of who is responsible for assuring 

that heavy airtankers are maintained in a airworthy state, the local FSDO’s have 

been taking that responsibility and have been providing oversight over maintenance 

and flight operations, both during the period when the aircraft are under contract 

to The Department of Agriculture and The Department of Interior, and when they 

are not. 

Airworthiness of the Current Airtanker Fleet 

Shortly after the tragic loss of two aircraft in 2002 the Department of Agriculture, 

the Department of Interior and the FAA grounded the heavy airtankers pending an 

evaluation and examination of the wings of the respective aircraft. This was accomplished by contracting with various FAA designated engineering representatives. In 

order to resume operations in 2002 each aircraft was required to undergo extensive 

inspections and repairs that were approved by the FAA. This also included a continuing airworthiness program for each aircraft and the wing structures specified 

in the AD (Airworthiness Directive) that was issued by the FAA. 

While I cannot comment on what each operator does for airworthiness inspections, 

I am sure that they each have similar inspection and repair procedures that have 

been approved by the FAA. In the case of Neptune Aviation Services, the aircraft 

received an expanded Depot Level inspection on each of the aircraft wings prior to 

returning to service in 2002. Each aircraft was completely dismantled from wing 

station 0—192 on both sides of the aircraft. This included the removal of upper 

stress panels, retardant tanks, fuel cells, liners and ribs. Full replacement of the 

internal doublers was completed using a modified version engineered and approved 

by a structural DER and the FAA. Detailed inspections (X-ray, fluorescent penetrate, detailed visual) of center wing and associated structures were completed. 

Outer wing structures were inspected for abnormalities. In the case of one aircraft, 

this included the replacement of one complete outer wing panel for preventive measures related to a previous repair prior to Neptune Aviation Services owning the aircraft. An aircraft was disassembled at the manufacturing breaks including outer 

wing panels and tail locations to verify Neptune Aviation Services was not missing 

any possible hidden areas of corrosion or concern. All wing attachment bolts were 

magnetic particle inspected. Sandia National Laboratories inspected Neptune Aviation Services in November 2002, they had only one operational recommendation directed to Neptune: to include a supplemental document incorporated in the AAIP 

for over weight landing. 

This inspection program to assure airworthiness of Neptune Aviation Services aircraft has become incorporated in our yearly inspection process. Once every other 

year each aircraft undergoes an expanded Depot Level inspection of each aircrafts 

wings. These inspections entail over five hundred (500) additional man-hours per 

43 

aircraft every other year, which Neptune Aviation Services is not reimbursed. This 

inspection is identical to the inspection completed in 2002 and is in addition to the 

full airframe Depot Level inspection that each aircraft undergoes every eighth (8) 

year. 

The NTSB in its Safety Recommendations expressed a number of concerns with 

the operation of ex-military aircraft and aging standard category aircraft. Some of 

these concerns are due to lack of diligence in conducting proper research or a 

through omission of fact. 

In the CRS Issue Brief for Congress, Transportation Issues in the 108th Congress, 

undated May 18, 2004, the NTSB cites two (2) reports that were conducted on firefighting aircraft in the firefighting environment. The NTSB states on the bottom of 

page fifteen (15) and the top of page sixteen (16) ‘‘The Safety Board located studies 

performed in the early 1970s by NASA on the Lockheed P2V and the Douglas DC– 

6 that examined the effects of the low-level firefighting missions on these converted 

surplus military airplanes plus a Canadian study on civilian Fokker F27 also converted to the firefighting mission. The results of the P2V study indicated that there 

were no adverse effects to the airframe structure due to the tank installation and 

the mission flown. The data for the DC–6 study drew conclusions that indicated 

that, unlike the P2V study, the firefighting mission did impact the structural life 

of the airplane. The report concluded that, ‘‘The severity of maneuver load applications, in both magnitude and frequency of occurrence, is such that significant shortening of the structural life of the aircraft should be expected.’’ In it’s Safety Recommendation, the NTSB included the information concerning the DC6 as well as 

the F27, however it did not cite NASA’s conclusions concerning the P2V. Rather it 

implied that the studies done on the three aircraft drew the same conclusions. 

Many operators are all ready taking into account the potential of significant shortening of the structural life of their individual aircraft types. In the case of Neptune 

Aviation we are using a Three (3) to one (1) ratio for the P2V in the wildland fire 

environment. For every hour of flight we are counting three (3) hours flight on the 

airframe. For the L–188, which we are in the process of conducting a Depot Level 

inspection, prior to tanking, we will be using a five (5) to one (1) ratio. This results 

in an accelerated maintenance program and provides an increase in safety and 

takes into account the potential shortening of the structural life of individual aircraft types. 

Prior to the termination of the heavy airtanker contracts the industry, in conjunction with the Sandia National Laboratories, was in the process of gathering data 

to determine the magnitude of maneuver loading and the level of turbulence in the 

firefighting environment and the effects these factors have on the remaining operational life of the aircraft in question (NTSB Recommendation A–04–29—Part 3). 

The Sandia Laboratories installed on three (3) aircraft (Tanker 48, a P2V, Tanker 

66, a DC–7 and Tanker 25 a P3–A) Structural Health Monitoring equipment. The 

data was gathered during the 2003 wildland fire season and was downloaded to a 

computer managed by the Sandia National Laboratories. The intent of this project 

was to provide the FAA with engineering evaluations and allow the FAA to revise 

the current FAA approved inspection programs of the individual operators. It is unfortunate that the Department of Agriculture terminated these contracts prior to the 

study generating the data needed to evaluate current airtankers, and future 

airtanker platforms. 

The NTSB states in its Safety Recommendation that ‘‘. . . for many aircraft used 

in firefighting operations, very little, if any, ongoing technical and engineering support is available. This is because either the manufacturer no longer exists or does 

not support the airplane, or the military no longer operates that type of aircraft’’ 

(page 7). While this may be the case for the aircraft that were involved in the tragic 

accidents in 2002, this is not the case for the remaining fleet of aircraft. Both Lockheed and Douglass provide full OEM support for their aircraft. This includes the 

DC–4/6/7, the P3–A and the P2V. Neptune Aviation has a contract with Lockheed 

to provide full OEM support and has enjoyed a productive relationship with Lockheed. Neptune Aviation also has acquired from Lockheed the full engineering drawings and specifications on the P2V aircraft. In addition Neptune Aviation has the 

full engineering drawings from Curtis-Wright and Westinghouse, along with the 

ownership of the original type certificate data sheet specifications (TCDS) for the 

J–34 turbojet engine. . This support allows Neptune Aviation to assure repair to 

original new standards and remanufacture to original type-certificate data sheet 

specifications (TCDS). Other operators have similar resources at their disposal. 

Because the NTSB failed to evaluate the entire industry their research failed to 

uncover that the operators of heavy airtankers have access to OEM engineering support, that the majority of the operators also have complete records for their aircraft 

and that the Sandia National Laboratories in conjunction with the FAA were alVerDate Nov 24 2008 08:13 Jan 03, 2018 Jkt 075679 PO 00000 Frm 00047 Fmt 6633 Sfmt 6621 S:\GPO\DOCS\27958.TXT JACKIE
44 

ready involved in developing a dynamic maintenance program for these aircraft. 

That in fact, the operators of the heavy airtankers had already conducted Depot 

Level maintenance base lines for critical structures within their aircrafts wings. The 

lack of due diligence in their research resulted in the NTSB coming to the incorrect 

conclusion on page seven (7) of their Safety Recommendation. ‘‘Therefore, it is apparent that no effective mechanism currently exists to ensure the continuing airworthiness of the these firefighting aircraft. Specifically, the maintenance and inspection programs currently being used do not adequately account for the increased 

safety risks to which these aircraft are now exposed as a result of their advanced 

age and the more severe stresses of the firefighting operating environment.’’ In fact 

all the operators are involved in a dynamic FAA approved maintenance program 

that takes into account the concerns the NTSB identify in their Safety Recommendations. 

Conclusions 

There is a wide spread misconception in Washington, D.C. concerning the current 

state of the heavy airtanker Industry. The NTSB, by coming to a conclusion through 

faulty research, and lack of due diligence came to the conclusion that there was no 

effective mechanism to assure the continuing airworthiness of the Heavy 

Airtankers. Further, in doing so they made the recommendation that the DOA and 

DOI should take responsibility to assure that the aircraft in question should be airworthy. By coming to this conclusion without any basis in data, they in effect placed 

the DOA and DOI into regulatory situation which the DOA and DOI are ill suited 

to accomplish. It is unfortunate that the NTSB failed to conduct their research on 

the Heavy Airtanker industry with any form of due diligence, for if they had they 

would have concluded that there are indeed mechanisms in place to assure that 

these aircraft are indeed maintained in a airworthy state. The FAA on the national 

level does not have an understanding of what is occurring on the Local FSDO level 

with respect to FAA oversight and the level of interaction between the FAA and the 

operators of Heavy Airtankers. In addition there is a perception that the companies 

that operate these aircraft are a bunch of cowboys who fly and maintain their aircraft by the seat of their pants. This may have been the case in the past for some 

operators, however the Heavy Airtanker Industry has undergone a significant evolution in the past ten (10) years, and a radical revolution of its maintenance and 

flight programs in the past two (2) years under the oversight of the Sandia Laboratories and the FAA. The costs that are associated with the expanded maintenance 

have been, for the most part, born by the companies involved in Heavy Airtanker 

operations. 

The FAA has failed to recognize that it has, all along, been involved in approving 

maintenance programs and in assuring the airworthiness of these aircraft. At the 

Local FSDO level of the FAA there is no doubt that the operators are under constant oversight, even while on contract to the Department of Agriculture for firefighting. 

The Department of Agriculture has become concerned that they are libel for future and past Heavy Airtanker accidents because the aircraft are considered ‘‘public 

aircraft’’. However, the courts do not seem to share that same opinion. The Federal 

Government has only been successfully sued once in the matter of a Heavy 

Airtanker accident. In that case, the accident was directly caused by a USFS lead 

plane colliding with an airtanker on short final for landing at Ramona California. 

In all the other cases involved in the loss of a heavy airtanker the courts have ruled 

that the liability of aircraft maintenance and flight operations lies with the individual operators. Further, if there is a desire to remove the question of ‘‘Public vs. 

Civil’’ aircraft in relation to Heavy Airtankers there are contractual ways to remove 

that concern. 

Lastly, The Department of Agriculture and The Department of Interior have decided to focus their attention on solely the question of airworthiness on the Heavy 

Airtankers. In their report the NTSB refers to all aircraft in the wildland fire environment. Many of the aircraft that are replacing the Heavy Airtankers are not 

under any form of FAA oversight. Their maintenance is conducted out side of any 

repair station, avoiding the involvement of the FAA, yet The Department of Agriculture and The Department of Interior are contracting with large numbers of these 

aircraft. 

It appears that no one is a fan of Harry Truman in any of the agencies on the 

national level that are dealing with the Heavy Airtanker issue; no one is willing to 

accept the responsibility that ‘‘the buck stops here’’. In the meantime the operators 

of Heavy Airtankers are be held hostage by the FAA, DOA, DOI and NTSB in a 

series of finger pointing with no one taking any responsibility. The result being, the 

public is being denied a critical resource in fighting wildland fire, and in the process 

45 

putting their property and lives at risk. It is my concern that we are involved in 

a war of attrition, the finger pointing will continue until the last of the companies 

have expended the last of their financial resources and have gone out of business. 

The resulting loss would be fifty (50) years of wildland fire experience. 

The CHAIRMAN. Thank you very much, Mr. Timmons. 

Mr. Grantham. 

STATEMENT OF WILLIAM H. GRANTHAM, PRESIDENT, 

INTERNATIONAL AIR RESPONSE INC. 

Mr. GRANTHAM. Thank you to the Committee and particularly 

you, Senator McCain, for allowing me to testify here today. I want 

to start off by saying that the other operators here and myself and 

our company totally agree with what Mr. Timmons’ statement he 

has just read. 

On May 10, 2004, the Departments of Agriculture and Interior 

announced cancellation of the large air tanker contracts. I would 

like for my testimony to be entered in the record, too. 

The CHAIRMAN. Without objection. 

Mr. GRANTHAM. Thank you, sir. 

This action resulted in the loss of a critical firefighting resource, 

termed a national resource by the sitting President. The action 

transfers an unacceptable risk to other firefighting resources and 

leaves individuals, states, forests, and urban areas and wildlife 

interface communities in an unprotected position during what has 

been projected to be one of the worst fire seasons in history. 

The basis of the contract termination is the recently released 

NTSB safety recommendations. While their assessments may have 

been reflecting a situation that existed in 2002 among some companies, it fails to take account of the strides of the last 2 years. It 

appears the NTSB has not been made aware of the cooperative, collaborative efforts made with industry and the FAA. Neither was it 

made aware of efforts with the U.S. Forest Service and BLM-sponsored programs that included Sandia National Laboratories, which 

resulted in strides to improve safety of the existing airtanker fleet. 

The NTSB letter cited: ‘‘There appears to be no effective mechanism in place to assure airworthiness of these firefighting aircraft.’’ 

This statement does not recognize that immediately following the 

blue ribbon panel’s report on aerial firefighting issued in 2002 operators began cooperative programs with the FAA, Forest Service, 

BLM-sponsored program, Sandia National Laboratories, and the 

airworthiness assurance group. Deficiencies that were noted in 

both the blue ribbon panel and NTSB have either been addressed 

or in works of progress to be corrected. 

An effective mechanism has been developed and can in fact assure the continued airworthiness of the majority of the fleet. The 

industry has fully cooperated and complied with any and all requirements that have been issued by FAA, USDA, Forest Service, 

BLM, and Sandia up to the cancellation date of the contracts. 

Actions compiled include: airworthiness directives, enhanced aircraft inspections, review of aircraft inspection programs, personal 

qualifications, recordkeeping, and many other prerequisites prior to 

the start of 2003 and 2004 contract periods. Aircraft loads and 

structures health monitoring programs have been initiated and 

great progress was being made to satisfy this crucial need for inforVerDate Nov 24 2008 08:13 Jan 03, 2018 Jkt 075679 PO 00000 Frm 00049 Fmt 6633 Sfmt 6601 S:\GPO\DOCS\27958.TXT JACKIE
46 

mation that is meant not only to ensure structural airworthiness 

of the current firefighting fleet, but the suitability of any future 

aircraft, modified and purpose-built. 

Statements have been made regarding the lack of FAA oversight 

of firefighting aircraft. Our industry records exist to prove all contractors receive visits from respective FAA district offices, I believe 

around 1,500 hits in the last year is what the FAA uses for terminology, which is quite a few. All the firefighting aircraft that were 

withdrawn from use in 2002 as well as those whose contracts were 

terminated have FAA airworthiness certificates, FAA-approved 

supplemental type certificates issued for the special purpose of firefighting, FAA-approved inspection programs. Private engineering 

firms with FAA DER’s have been hired. Furthermore, all operations are conducted in accordance with Title 14 CFR Parts 43.61, 

65, 91, 137, and other appropriate airworthiness regulations. 

At no time has the FAA found it necessary to take action on the 

certificates or flight status of these aircraft other than issuance of 

airworthiness directives, with which operators of affected aircraft 

immediately complied. 

Incorrect statements have also been made about the lack of 

records pertaining to aircraft prior usage. These statements are 

also incorrect. At no time has any operator been visited by the 

NTSB personnel to look at airtanker records other than during the 

specific investigations related to the accidents of 2002. 

With regard to the necessity to upgrade the fleet and modernize 

equipment, the industry concurs and always has concurred with 

this necessity. No contractor advocates or desires to operate any 

aircraft that is found to either be unsafe or no longer able to have 

its airworthiness assured. In accordance with recognized FAA-approved procedures, it is the desire and commitment of our industry 

to work collaboratively with the agency to develop a safe, responsible, and economical plan of transition to an evolving, appropriate 

fleet of aircraft. Whatever perceived problems remain can be addressed through cooperation between industry, FAA, and the responsible accountable leaderships within the agencies. 

We therefore respectfully request the Committee give due consideration to providing full support of the current and continuing efforts of industry, FAA, Sandia, and the Inter-Agency Air Tanker 

Board to immediately restore all available firefighting aircraft to 

operational status. We further request direction and support be 

given to the agencies with industry to begin a process of determining a safe, responsible, sustainable economic transition plan, 

appropriately funded, to ensure our Nation is not placed in this situation again. 

Thank you, Chairman, for the time. 

[The prepared statement of Mr. Grantham follows:] 

PREPARED STATEMENT OF WILLIAM H. GRANTHAM, PRESIDENT, 

INTERNATIONAL AIR RESPONSE INC. 

I would like to thank this committee and particularly Chairman, Senator McCain, 

for this opportunity to provide you with facts related to the perceived safety concerns which resulted in cancellation of the large airtanker contracts by the Departments of Agriculture and Interior. 

On May 10, 2004, the Departments of Agriculture and Interior announced the 

cancellation of the large airtanker contracts. This action has resulted in the loss of 

47 

a critical firefighting resource, termed a ‘‘National Resource’’, by a sitting President 

of the United States. The action transfers unacceptable risk to other firefighting resources, and leaves individual states, forests and urban wildland interface communities, in an under protected position during what has been projected to be one of 

the worst wildfire seasons in our history. 

The basis for the contract termination is the recently released NTSB Safety Recommendation. While their assessment may have reflected a situation that existed 

in 2002, it fails to take into account the strides of the last two years. It appears 

the NTSB has not been made aware, of the cooperative and collaborative efforts 

made by industry and the FAA. Neither was it made aware, of efforts with the 

USFS/BLM sponsored programs that included Sandia National Labs, which resulted 

in strides to improve the safety of the existing airtanker fleet. 

The NTSB Letter cited, ‘‘There appears to be no effective mechanism in place to 

assure the airworthiness of these firefighting aircraft’’. This statement does not recognize that immediately following the Blue Ribbon Panel’s report on Aerial Firefighting issued in December of 2002, operators began collaborative programs with 

the FAA, and the Forest Service-BLM sponsored program with Sandia National 

Labs Airworthiness Assurance Group. Deficiencies noted by both the BRP and the 

NTSB have either been addressed or were works in progress. An effective mechanism has been developed that can in fact assure the continued airworthiness of a 

majority of the fleet. 

The Industry has fully cooperated and complied with, any and all requirements 

that had been issued by the FAA, USDA/FS, BLM and Sandia up to the cancellation 

date. Actions complied with include Airworthiness Directives, enhanced aircraft inspections, review of aircraft, inspection programs, personnel qualifications, record 

keeping and many other prerequisites prior to the start of the 2003 and 2004 contract periods. Aircraft Loads and Structural Health Monitoring programs have been 

initiated and great progress was being made to satisfy this crucial need for information, that is meant to not only assure the structural airworthiness of the current 

firefighting aircraft, but determines the suitability of any future aircraft either 

modified or purpose built. 

Statements have been made regarding a ‘‘lack of FAA oversight’’ of firefighting 

aircraft and our industry in general. Records exist that prove all the contractors receive visits from their respective FAA District Offices. ALL firefighting aircraft that 

were withdrawn from use in 2002 as well as those whose contracts were terminated 

have FAA Certificates of Airworthiness, FAA Approved Supplemental Type Certificates issued for the special purpose of firefighting, FAA Approved Inspection Programs, private engineering firms with FAA DER’s have been hired. Furthermore, 

all operations are conducted in accordance with Title 14 CFR Part 43, 61, 65, 91, 

137 and other appropriate airworthiness regulations. At no time has the FAA found 

it necessary to take action on the certificates or flight status of these aircraft, other 

than the issuance of Airworthiness Directives with which operators of affected aircraft immediately complied. Incorrect statements have also been made about a lack 

of records pertaining to aircraft prior usage. These statements are also incorrect. At 

no time has any operator been visited by NTSB personnel to look at airtanker 

records, other than during the specific investigations related to the accidents of 

2002. 

With regard to the necessity to upgrade the fleet to modem equipment, industry 

concurs, and has always concurred with this necessity. No contractor advocates, desires or would operate any aircraft that is found to be either unsafe or no longer 

able to have its airworthiness assured, in accordance with recognized FAA approved 

procedures. It is the desire and commitment of our industry, to work collaboratively 

with the agencies to develop a safe, responsible and economic plan of transition, to 

an evolving appropriate fleet of aircraft. 

Whatever perceived problems remain; can be addressed through cooperation between our industry, the FAA and responsible, accountable leadership within the 

agencies. 

We therefore respectfully request this committee; give due consideration to providing its full support of the current and continuing efforts of industry, FAA, Sandia 

and the Interagency Airtanker Board, to immediately restoring all available firefighting aircraft to operational status. We further request direction and support be 

given to the agencies to work with industry, to begin the process of determining a 

safe, responsible, sustainable and economic transition plan, appropriately funded to 

ensure our Nation is not placed in this situation again. 

Thank you. 

The CHAIRMAN. Thank you, Mr. Grantham. 

48 

Mr. Rey, you mentioned that you made the decision—when was 

the decision made, a week ago was that announced? 

Mr. REY. The reconfiguration decision was finalized yesterday. 

The CHAIRMAN. No, the decision to cancel the contracts on the 

tankers? 

Mr. REY. That was May 11. 

The CHAIRMAN. May 11, about 3 weeks ago. 

Why was not this decision made last fall? 

Mr. REY. Last fall we were still working with Sandia Laboratory 

and FAA and the contractors on the modified operating procedures 

and the more robust inspection and maintenance program and communicating that information as we went to NTSB. So it was our 

hope that, as I said in my statement, that that would be adequate 

to assure the airworthiness of the tanker fleet. 

The CHAIRMAN. But what actually happened was that, instead of 

making a decision to ground the fleet so that perhaps Sandia’s recommendations, the NTSB, the FAA recommendations which you 

have been given could have had time to have been implemented before we are into the fire season, you delayed and made the decision 

at a point where now we have actual fires going on. 

Mr. REY. The point of the work with Sandia was to implement 

the recommendations of the Blue Ribbon Commission and FAA. So 

that was in process. 

The CHAIRMAN. And were Sandia’s recommendations implemented? 

Mr. REY. They were as far as we received them. We were still 

waiting for additional information from Sandia. 

The CHAIRMAN. Well then, how could the Department of Interior 

determine, and I quote, ‘‘There is no method currently in place to 

adequately ensure the safety and airworthiness of the aircraft’’? 

Was the money to Sandia wasted? 

Mr. REY. That was a quote from the NTSB report. I think what 

our reading of the NTSB’s conclusions, our interpretation of their 

conclusions, was that they felt that the work with Sandia was either inadequate and/or not coming online fast enough to assure 

that the aircraft could be safely flown in this fire season. 

The CHAIRMAN. A decision that could have been made last fall, 

right, Ms. Conners? 

Ms. CONNERS. Well, sir, we were in discussion with the Forest 

Service as a party to the investigation, so where we were headed 

was being discussed, but we did not issue our formal recommendations until April 23. 

The CHAIRMAN. Until when? 

Ms. CONNERS. April 23, sir, is when we issued our final recommendation letter. 

Mr. REY. As it turns out, it was fortuitous that the final decision 

came out at the outset of the fire season, because if we were into 

the middle of the fire season it would have been significantly more 

difficult to contract the additional aircraft necessary to reconfigure 

the fleet. 

So it would have been somewhat better had we gotten their final 

report last fall, but nevertheless not crippling to our firefighting effort to get it when we got it. 

49 

The CHAIRMAN. Well, my point is that the FAA has now given 

you some guidelines—right, Mr. Sabatini? 

Mr. SABATINI. Yes. 

The CHAIRMAN. And you are announcing these today, after announcing on May 11 that the contracts were canceled. It is very 

bad timing. We are now faced with a crisis situation. We were not 

last fall because of the end of the fire season. I would have hoped 

that that would have been taken into consideration in the decisionmaking process. Obviously it is not. 

Mr. Rey, anybody who understands the speed and range of a helicopter as opposed to one of these aircraft does not agree with your 

assessment that somehow these are adequate replacements. I have 

been around too long in aviation to buy that one. 

Senator Wyden. 

Senator WYDEN. Thank you, Mr. Chairman. 

My sense is, with Chairman McCain and colleagues here putting 

some heat on, and we are going to keep it on, we are going to figure out a way to deal with this now and we are going to have people reporting and the like. But my sense is that there is still going 

to be tremendous confusion about accountability. 

I would like to ask each of you whether you think it would be 

clearer and simpler to just put FAA in charge of safety issues. That 

is what Congress recommended in 1993. It would require a change 

of statute to do it. But it seems to me that once the hot light of 

Congressional oversight passes and we get through this we will be 

back in the same vacuum of responsibility that we are in now. 

So let me see if I can get you all on the record on this, on changing the statute and putting FAA in charge of safety issues. Why 

do we not start with the Forest Service. 

Mr. REY. That is an option available to the Congress. It would 

require a statutory change, given the current configuration. 

Senator WYDEN. But would you support that now? 

Mr. REY. We are moving forward as aggressively as possible with 

FAA—— 

The CHAIRMAN. Try to answer the question, Mr. Rey. 

Senator WYDEN. Yes or no? I am interested in working on a bill 

so that there is clear straightforward authority on safety. It is what 

Congress recommended. I would like a yes or no answer about 

whether or not you would support that. 

Mr. REY. We would not oppose that. 

Senator WYDEN. Good, very good. 

The FAA? 

Mr. SABATINI. We will certainly follow the will of the Congress. 

Senator WYDEN. Yes or no with respect to whether you would 

support it? 

The CHAIRMAN. I would ask the witnesses to answer the question. It is pretty straightforward questions. We would like yes or 

no answers, affirmative or negative. You can elaborate if you would 

like. But I am growing a little weary of people coming before this 

committee and not answering straightforward questions with 

straightforward answers. 

Mr. Sabatini, your question is very clear. 

Mr. SABATINI. I could not support that, and I would like to elaborate. I think that the United States military is a shining example 

50 

of how public aircraft can be operated very safely. They are a 

world-class organization. They have a competency and an expertise 

equal to what we have in the civil side of the FAA. 

Congress back in 1994, this very committee, debated this very 

issue and the changes that they made was to take the transportation of people that was not inherently government and place that 

under FAA responsibility and jurisdiction. But it made very clear 

and very explicitly stated that there are operations which are so inherently dangerous that they do not fit into the civil side of the 

fleet and that it should remain the responsibility of the operating 

authority, such as the Forest Service or the military, in activities 

such as firefighting, search and rescue, et cetera. 

So in answer to the question, Senator, I would not like to see 

that. 

Senator WYDEN. Mr. Timmons, Mr. Grantham—— 

The CHAIRMAN. Thank you very much, Mr. Sabatini. 

Senator WYDEN.—yes or no? 

Mr. GRANTHAM. Yes. 

Mr. TIMMONS. Yes, I would agree. 

Ms. CONNERS. Sir, we have a five member partisan board. I cannot speak for the other members. 

Senator WYDEN. Just you, just your opinion? 

Ms. CONNERS. I will give you my opinion. I believe that it would 

be a slippery slope of expansion of policy. You would have incredible resource requirements for the FAA. When you look at, as suggested by Mr. Sabatini, some of the other safety operations such as 

the Coast Guard helicopter search and rescue, police operations, et 

cetera and so forth, the expansion is so far, taken to its ultimate 

conclusion beyond 33 tankers or even 700 vessels, airframes, that 

are used in firefighting, that I think the Congress needs to look 

very seriously at it beyond this immediate moment on such a policy 

change. 

That is the opinion of only one board member, not the board 

itself. 

Mr. REY. If I could elaborate just for a second, because I did not 

do so priorly. Whether Congress makes that change or not, we are 

committed to working with FAA and they are committed to giving 

us their expertise to solve this problem, and we will move to solve 

it. 

Senator WYDEN. I guess that is what I am skeptical of. I think 

once oversight and the exposure passes I question that. And it is 

not a question of your desires, Mr. Rey. The FAA provided the Forest Service and various other people with their phone number and 

yet I do not see any evidence of any real follow-up. 

I guess I got three out of five votes here today to put the FAA 

in charge of safety, but it is an issue I am going to continue to pursue. 

Let me ask about one other matter because I know colleagues 

have questions. I have real reservations about whether the FAA 

has the information that is needed now about the stresses of the 

firefighting environment and that there is not adequate science on 

it. What does this panel think about the idea of putting black box 

flight data recorders on firefighting planes? Obviously there would 

be questions about cost and the matter of installation and the like. 

51 

But obviously something that would ensure that we have got the 

data that realistically looked at what was going on there strikes me 

as constructive. 

Let us just go down the row. Mr. Grantham, is this a sensible 

thing to be looking at? 

Mr. GRANTHAM. Yes, it is, sir. Actually, after the 2002 tragic accidents the FAA paid to install telemetry wiring equipment in our 

two C–130A aircraft. They have operated continually since 2002. 

They operate on U.S. Department of Defense contracts. We fight 

fire in foreign countries since the U.S. Forest Service won’t use 

them. 

The equipment takes readings all through the wings area, the fuselage, many points. It is on a disk. It can be pulled any time you 

want to pull it. It is analyzed. And it is not only for the current 

airworthiness safety measures for that aircraft, but it is for establishing a future baseline for safety of these aircraft and to determine what the aircraft is doing and what it is not doing and what 

the stress loading is. 

As of this date, it has not pulled up any data that shows that 

there are excessive stresses on that aircraft in this mission, and it 

has been used. Both of our aircraft were on military contract last 

week. One of them is operating this week. And they continually 

take these readings and it is supplied to the FAA. 

Senator WYDEN. Mr. Timmons, the rest of the panel, black box 

recorders or something similar? 

Mr. TIMMONS. I would concur. I have no problems with the black 

box. Sandia has already put health monitoring equipment into a 

P2V, a DC–6, and a P3A. That data was gathered through the 2003 

fire season. The data has not been analyzed and with the cancellation of these contracts there will be no more data coming in. So I 

would encourage both. 

Senator WYDEN. Mr. Rey, Mr. Sabatini, Ms. Conners? Because 

that is the point. With the cancellation of the contracts, we are not 

going to get this data, and I am interested in these policies that 

are going to allow us to track the science in the future. 

Mr. Ray, what do you think of the idea? 

Mr. REY. I think, as Mr. Timmons said, that we are beginning 

to collect that kind of information under the Sandia protocol. I do 

not have any problem with that. 

Senator WYDEN. Good. 

Mr. Sabatini? 

Mr. SABATINI. I would support flight data recorders. 

Senator WYDEN. Good. 

Ms. CONNERS. The Board is on record in supporting data recording in all modes of transportation. 

Senator WYDEN. Mr. Chairman, I know colleagues want to ask 

questions, but I am very pleased again that you are holding these 

hearings. I think that clearly there has been some confusion about 

the key safety questions. Certainly the Forest Service at times 

thought the FAA was looking at issues of ongoing inspection and 

compliance when clearly FAA was not doing any such thing. 

So I hope that, through clarifying the safety oversight responsibility—I continue to believe that we ought to do what Congress recommended, and that is to put FAA in charge of safety issues, and 

52 

then following the science with something along the lines of a requirement for a black box recorder on these flights so that we can 

track stress. Those are the kinds of suggestions that are going to 

help us turn this around. 

But I am very appreciative as a westerner of your holding these 

hearings and giving us a chance to force as much change out of this 

process as we can. 

The CHAIRMAN. Thank you. 

Senator Burns. 

Senator BURNS. Thank you, Mr. Chairman. 

I want to start—we have already asked some of the questions 

that I was going to ask, but I want to clarify one thing here. Mr. 

Rey, this signing of the MOU with the FAA and using their recommendations on this thing, and say the operator-by-operator basis 

to make your judgment, how quickly could you put qualified tankers back in the air? Have you got any estimate on that? 

Mr. REY. That was a question that we struggled with yesterday 

with our engineers, both at FAA and the Forest Service. The best 

answer we can give you right now is the shortest time period and 

the longest time period. The longest time period is never. Some of 

these aircraft—— 

Senator BURNS. That is like the market: How low can it go? Zero. 

Mr. REY. Right. Some of these aircraft may not be able to secure 

and provide the data necessary to assure their airworthiness. I will 

sort of take on faith that the two operators here can provide that. 

I suspect some others will not be able to. So that is the outside 

number, never. 

The inside number is that we believe as we send them the request for information to the contractors today, if they can turn 

around that information request relatively quickly, we can have the 

results and recommendations to put before the NTSB in about 30 

days time. 

Senator BURNS. Mr. Chairman, that 30 days seems like a long 

time. If you have gotten the information—Mr. Timmons, give me 

a real world estimate. They require this information. You supply 

them that information as correctly as you can, and from my understanding you have as good records as anybody in the business. How 

long would it take you to get those records to the Forest Service? 

Mr. TIMMONS. With the records that we have in place, if they are 

not asking for any additional engineering data, we could acquire 

and send them those records probably within 2 working days. 

Senator BURNS. And then, then you are going to forward those, 

those records, to who to make a decision? Are you going to take it 

to the FAA or the NTSB? 

Mr. REY. We will sit down with the FAA-designated engineering 

representatives and review the information to assess first whether 

it’s complete, second whether it is adequate to assure a recommendation of airworthiness, third to evaluate whether more information will be needed, and we will make that a fair evaluation. 

Then, wrapping all that together, if we conclude that the answer 

to those questions is yes and not no, then we will submit that to 

the NTSB to see if we can get some modification of their recommendations. 

53 

Senator BURNS. Well, the NTSB, they are not a regulatory agency. They investigate and report. 

Mr. REY. That is correct, but they often continue to investigate 

agencies’ ongoing compliance with their recommendations. It would 

be our preference here, in this case, to give them that material, to 

see if they want to give us any advice per their original recommendations. They may choose not to, in which case then we and 

the FAA will have to make a decision. 

Senator BURNS. Given that information, Mr. Sabatini, how long 

would it take? 

Mr. SABATINI. The responsibility to provide the data to demonstrate compliance with the criteria that has recently been provided to the Forest Service rests with the operator, in essence the 

applicant. The Forest Service is positioned today, with the expertise that they have developed over time with our assistance—I 

want to make clear, with our assistance—and they can now have 

available to them, we have provided them a list of designated engineering representatives who are designees, authorized by the FAA 

to do work on behalf of the FAA, but who are not FAA employees. 

They are available to the Forest Service. 

They and they alone are responsible for the decision against the 

criteria which we helped them develop. If they wish to submit that 

data to us for review, we will continue to support them and lend 

our significant expertise in that area. But the final decision as to 

returning those aircraft to service would be the responsibility of the 

public organization responsible for the public operation—firefighting. 

Senator BURNS. I want to make it very clear what my intent is 

with this line of questioning. I know what bureaucratic run-around 

is and I want to prevent that if I can. But I realize you go down 

there in this, there is going to be some faceless little person, and 

their eyes are very close and they speak in tongues, who can give 

us a run-around and we will not get one damned airplane off the 

ground or put out one fire. 

That is what concerns me more than anything else, is the process 

here more than anything else. If an operator has the records and 

complies with everything that they are asked to do, why can’t that 

be dealt with in a timely manner so everybody can get back to the 

business of protecting our national forests and our national treasures? 

Mr. REY. There is no reason they cannot. If they have the 

records, if the records are adequate, if the records demonstrate that 

the vehicles are airworthiness—those are three ifs—then we are 

committed by the work that we have done with FAA’s guidance to 

try to give them every opportunity to get back in the fleet, because 

they are cost-effective. But if that does not happen—and I hazard 

a guess that it will not happen for some number of the large 

airtanker fleet. If it does not happen for any of them, then we are 

confident that we will fight fires and maintain a nearly 99 percent 

success rate at initial attack with the reconfigured fleet. 

The Chairman is correct, helicopters do not get to the fires as 

fast. That is why what we have done is retained more of them, because we are going to deploy them in a more dispersed fashion. 

54 

Once they are there onsite, they have other advantages. Their turn 

times are shorter and they can deliver more water and retardant. 

So one of the things I want to leave for the benefit of the confidence of your constituents is that we have reconfigured the fleet 

in a fashion that is going to result in an effective firefighting effort. 

That being said, if those things occur that we have just discussed, 

if they occur to the satisfaction of the Forest Service and the Department of the Interior, with FAA’s expert counsel, and we get 

some judgment that we are making progress against NTSB’s recommendations, they will have the opportunity to return to the fleet 

and we will use them gladly. 

Senator BURNS. Thank you, Mr. Chairman. 

The CHAIRMAN. Senator Boxer. 

Senator BOXER. Thank you, Mr. Chairman. 

I am very concerned, Mr. Rey, that you do not exhibit the attitude of a can-do person to me, really. You are telling us to tell our 

people not to worry. Let me tell you, I am not going to lie to my 

people, because I have got your plans for firefighting resources in 

southern California. Here is what you do. You have taken away 22 

of these very important federally contracted airtankers with a capacity between 1,800 and 3,000 gallons. You are giving us five 

more helicopters. 

Now, how am I going to go to my people with a straight face and 

tell them they are safer than they were? You are sitting here—and 

I can tell because I am watching you and I am listening to you and 

you say: Even if we do not have one tanker. You do not intend to 

put any of them back. 

I agree with Senator Burns. He gets it, too. 

Mr. REY. If we did not—— 

Senator BOXER. Wait. I am going to ask you a question. 

Mr. REY. OK. 

Senator BOXER. But I have to say, I am confused. Ms. Conners 

says to us very clearly ‘‘By statute authority for the safety oversight of these operations,’’ meaning the tankers, ‘‘belongs to the 

agency or department responsible for the operation.’’ Did you not 

know you were responsible for the safety before? 

Mr. REY. The responsibility devolves to the operator of the aircraft. 

Senator BOXER. That is not what Ms. Conners said. Is that correct, Ms. Conners? Did you not say what I just said? ‘‘By statute, 

authority for the safety oversight of these operations belongs to the 

agency or department responsible for the operation?’’ 

Ms. CONNERS. Yes, ma’am, we said that in this case the Forest 

Service and the Agriculture Department—— 

Senator BOXER. Thank you. 

Ms. CONNERS.—would be primarily responsible for the operation. 

Senator BOXER. Exactly. 

Who in your shop was responsible when those accidents occurred? Who did you turn to and say, what work have you been 

doing? 

Mr. REY. We turned to our Fire and Aviation Branch that continues to work on the safety of these aircraft and asked them to 

charter an independent review of the safety of the aircraft, which 

we did, to install additional operation and maintenance requireVerDate Nov 24 2008 08:13 Jan 03, 2018 Jkt 075679 PO 00000 Frm 00058 Fmt 6633 Sfmt 6601 S:\GPO\DOCS\27958.TXT JACKIE
55 

ments, and configure some of the operation of the aircraft to try to 

assure airworthiness. That effort has been ongoing since December 

2002. 

Senator BOXER. So do you have confidence in those people in 

your shop, since they are required under law to be responsible? Do 

you have confidence in them? 

Mr. REY. I have confidence in them as far as their expertise goes. 

To the extent that we are solely responsible for assuring airworthiness without the advice of FAA, I do not think they are adequate 

for that purpose. That is why we have sought FAA’s and received 

FAA’s advice to assist. 

Senator BOXER. Well then, why would you not endorse Senator 

Wyden’s point? You are sitting here telling us your shop is not adequate. 

Mr. REY. By itself. 

Senator BOXER. Yes. 

Mr. REY. I did not oppose his point. I just said that—— 

Senator Boxer: Well, your answer was: I would not oppose you. 

And if you need more resources, why do you not tell us? But Mr. 

Rey, we need an honest evaluation. You are telling us you have a 

shop, but you do not have full faith that they have enough expertise to handle the deal. So instead of coming to us and saying to 

our Chairman, we need more resources to get some top people on 

board absent a change in law, you are saying: We are just going 

to ground these things. 

The bottom line is I have no confidence that you have any intention to allow these tankers to do their job. I am telling you that 

my people on the ground are saying they are absolutely necessary. 

Mr. REY. I would dispute the proposition that they are absolutely 

necessary—— 

Senator BOXER. What is your background in fighting fires? 

Mr. REY. I have a forestry background and we have considerable 

expertise—— 

Senator BOXER. In fighting fires? 

Mr. REY.—in firefighting. 

Senator BOXER. Do you have as much as the people who are the 

fire chiefs on the ground? Do you have the same background as 

they have? 

Mr. REY. I have staff with superior expertise in wildland firefighting. 

Senator BOXER. Superior to the people who are doing this every 

day? 

Mr. REY. They are doing it every day. 

Senator BOXER. OK. So do they not agree with my people who 

say in reality it is pretty scary going into this type of season without this resource, they have a major effect on fighting? You would 

disagree with that? 

Mr. REY. I disagree with the statement that they have a major 

effect on fighting large wildland fires. They have a major effect in 

two narrower areas: initial attack when access is an issue; and extended initial attack to slow down a fire. 

Senator BOXER. Mr. Chairman, let me tell you what I am getting 

from this witness between the lines here. I do not see someone that 

56 

is very motivated to fix this problem in the short term. I am very 

concerned about it. 

Mr. Timmons, do you have—since you and Mr. Grantham—— 

The CHAIRMAN. Maybe Mr. Rey would like to respond to that. 

Mr. REY. I would like to respond to that, because maybe I have 

not been—— 

Senator BOXER. But could I finish this question? 

The CHAIRMAN. After he responds, you can have extra time. 

Senator BOXER. Thanks. 

The CHAIRMAN. Go ahead. 

Mr. REY. Maybe I have not been sufficiently enthusiastic, but let 

me reiterate what I said in my initial statement. As a matter of 

equity and cost effectiveness, it would be helpful if we can assure 

the airworthiness of the large airtanker fleet and restore some portion of them to our firefighting effort. We are doing that on a very 

quick step basis, with FAA’s assistance. In a matter of less than 

a couple of weeks, FAA has provided us with an engineering profile, the necessary data call that we have to make on the part of 

the contractors, as well as designated engineering representatives 

to assist our limited staff. 

Senator BOXER. Thank you. You have told us this before. But I 

come back to the point—and sometimes when a witness says something they do not even realize, when they say: Or even if we do not 

have any tankers you are going to be safer. I will tell you that is 

an outrageous statement. I see what your plans are for my state 

and we will not be safer. I continue to believe that in your heart 

of hearts, from what you have said to the House people, from what 

you have said to us, this does not appear to be something that is 

upsetting to you. 

I would just like to ask the gentlemen who know about these aircraft if they agree with Mr. Rey on the effectiveness of the tankers? 

Mr. GRANTHAM. We do not agree with Mr. Rey. 

Senator BOXER. Could you give us some facts on it? 

Mr. GRANTHAM. Well, we can give you the same facts. I have 

been an initial attack airtanker pilot for around 38 years. I forget 

how many. And we have been in business that long, too. The large 

airtanker probably has been historically the most useful tool in 

combatting wildland fires. 

One of the problems that has happened in the last 10 to 15 

years, the Forest Service has mismanaged even using the large 

fixed-wing airtanker. As Mr. Rey now states, it is ideal for initial 

attack and follow-up attack. The firefighting methods have 

switched from early morning times of day when you have advantage over the fire to fighting it during the critical burn period of 

the day, and this is not a good firefighting method which the Forest 

Service has gone to. It is more dangerous on equipment, personnel, 

adds more stress loads to the aircraft with the turbulence, and you 

have less advantage over the fire. You have to fight fire early in 

the morning. 

But along with the helicopter and the single-engine airtanker 

and the other equipment, which is also—they are susceptible to the 

same dangers we have and the same structural problems. None of 

them are going through these same FAA certification situations the 

large airtankers are going through. So they are out there adding 

57 

this equipment on in a more unsafe atmosphere than the large 

airtanker fleet that is the most heavily inspected fleet today that 

you have, probably the safest fleet to put back into existence. 

The CHAIRMAN. Now, Mr. Grantham, it cannot be the safest if it 

had three tragic accidents now. Let us put it in context here. 

Mr. GRANTHAM. Firefighting is inherently dangerous. They average probably—— 

The CHAIRMAN. But these tankers crashed, the helicopters did 

not and others did not. 

Mr. GRANTHAM. Helicopters do crash. 

The CHAIRMAN. And they were because of failure, material failure. 

Mr. GRANTHAM. I think you can look to individual companies for 

some of that problem. 

The CHAIRMAN. I am sure the families do not look at individual 

companies, Mr. Grantham. Go ahead. 

Senator BOXER. Well, the point is that they are effective. The 

safety issue is what needs to be addressed, and we all agree on 

that. The problem that I have and I think Senator Burns has, just 

listening to him, is we want to make sure that you have—we have 

accidents all the time. It is horrible, lots of aircraft. But we make 

sure that we have in place the best kind of system to make sure 

that these planes are airworthy. 

In the law today, you are responsible for that. You have said 

here you do not think you have enough expertise in your shop. I 

find that troubling, Mr. Chairman, because if they do not have 

enough expertise in their shop, A, we have to either change the law 

or, B, get them more money so they can get the expertise so that 

we can get these tankers up and running again. I have a slew of 

people who have testified as to the importance of the airtankers. 

Here is Tom Innocencio, Assistant Manager at the airtanker base 

in San Bernadino, which is run by the U.S. Forest Service, said: 

‘‘There is no question that airtankers saved homes in the Serrito 

fire between Corona and Lake Elsinore.’’ 

So I mean, the people on the ground, they seem to believe that 

this is a very important tool. I believe it is as well. And I share 

the Chairman’s concern. We want them to be safe. But let us make 

it—let us be can-do about it, or we would never fly any plane, because there has to be a way we can make this work. 

Thank you, Mr. Chairman, for your patience. 

Mr. REY. I will be as can-do as I can be. There is an option C, 

Senator Boxer, and that is for the FAA to provide us the assistance 

they are and, hopefully, if the operators can provide the information we need, to then get them airworthy doing that. That is just 

what we are doing. As I told Senator Burns, with audible gasps 

from our engineering staff at both the Forest Service and the FAA 

behind me, that if everything works right in terms of their ability 

to provide the information and the information does provide the 

necessary basis for assuring their airworthiness, we can have that 

done in 30 days or thereabouts. 

Senator BOXER. Thank you. 

The CHAIRMAN. More time, Senator Boxer? 

Senator BOXER. No, thank you. 

The CHAIRMAN. Senator Cantwell. 

58 

STATEMENT OF HON. MARIA CANTWELL, 

U.S. SENATOR FROM WASHINGTON 

Senator CANTWELL. Thank you, Mr. Chairman. 

I have a question, Mr. Rey. It is not often I have a chance to ask 

you a question before this committee, but we have had many exchanges before the Energy Committee. We are about 30 days away 

from the anniversary, the 3-year anniversary of the 30-Mile Fire, 

in which we lost several young firefighters in the state of Washington. So safety for us has been a primary concern. While the 30- 

Mile Fire I do not think would have been necessarily aided by 

these particular tankers, we are talking about this morning, I 

think it does bring up a question about the priority of safety and 

security. 

I think we have queried you numerous times about a separate 

safety and security budget number from the agency, which I am 

not sure we have even gotten resources on that. So now here we 

are with this particular incident. I personally believe the agency 

spent a lot of time undermining environmental law in the last several years. So my question is, if you spent that much time on these 

environmental changes why did you not spend this much time on 

the safety of this particular situation? 

So my first question is, when exactly did we make this determination? When did you first find out? What date, what memo, 

what document in which the agency first determined that these 

tankers were not going to be sufficient for this season? 

Mr. REY. The inquiry into the safety of the large airtanker fleet 

commenced immediately after the fatal incidents in 2002. After 

that we established an independent review committee co-chaired by 

the former Chairman of the NTSB, the previous Administration, 

and a state forester from Texas who has some expertise in the use 

of aviation assets. 

We also consulted at that point with FAA. From the recommendations of FAA and the Blue Ribbon Independent Review 

Commission, we contracted with Sandia Laboratories to develop a 

more robust inspection and maintenance program for these 

airtankers, as well as to modify some of the operating procedures 

to assure a larger margin of safety. We reduced, for instance, fuel 

loads—not fuel loads, but retardant loads under certain circumstances. 

Throughout the course of implementing the recommendations of 

Sandia Laboratories and FAA’s recommendations, we were communicating with the NTSB. It was our hope that as NTSB’s report 

was finalized that the changes that we had made would be sufficient for a different kind of conclusion from NTSB. That hope was 

not realized and so the question then became, as I indicated earlier 

in the hearing, upon receipt of the NTSB report the sole question 

available was, would any prudent person continue to fly these aircraft in the presence of available alternatives? 

We concluded on May 11 that no prudent person would do that 

in the presence of available alternatives. 

Senator CANTWELL. So during this time period, Mr. Rey, since 

the 2002 period, did you ever inform any committees or Members 

of Congress that an ultimate solution to this might be grounding 

of the tankers? 

59 

Mr. REY. No. There were hearings, primarily in the House, in 

2003, I think, that asked about the status of the firefighting effort 

generally and airtanker safety specifically. 

Senator CANTWELL. But nowhere did you give notice to members 

that, hey, we might be at a critical juncture here where we are 

grounding these tankers? 

Mr. REY. No. It was our hope that we would not have to reach 

that point. Unfortunately, that hope was not realized. 

Senator CANTWELL. In hindsight, do you not think you wish you 

would have given some people the heads-up, given that we are now 

on the precipice of the fire season, and particularly in our state, we 

are back again to a dry dry season and we expect that we are going 

to have severe conditions that will be very ripe for this kind of 

thing? So we are on the precipice of that, and then to say to a region of the Northwest, we do not think we are going to have these 

large tankers? 

Mr. REY. As I said earlier, the advent of the fire season forced 

the issue in terms of the timing of the decision, because we needed 

to move quickly to secure alternative aircraft to replace the tankers. So yes, it would have been more fortuitous if we would have 

made the decision earlier, but it would have been more disastrous—or difficult, if we would have waited on the decision, argued 

it back and forth, and then been further into the fire season unable 

to secure replacement aircraft. 

Senator CANTWELL. I am not questioning that. I am questioning 

the time period of discussion about the fact that we might get to 

this critical moment. God forbid if we were doing this in Iraq and 

all of a sudden we said we do not have a plan, no one ever thought 

of it. I am questioning now the agency’s commitment to safety, and 

from my own experience in trying to get the cultural awareness on 

the incidents from the 30-Mile fire or even get a safety budget, 

what does the agency spend on safety—that is mandated in the 

wildland bill and yet your agency still does not track safety numbers. I cannot get a number of what you spend on safety and security. 

So now we get to this situation and it is the eve of the situation. 

I am not even questioning your decision as much as I am questioning why we get to this point right at the precipice and all of 

a sudden, pop, here is this decision. My question is notification to 

members and to states that are going to be gravely impacted from 

this about whether other alternatives—what other plans, what 

other considerations would be considered. 

I have a follow-up question. I know my time is running out. 

Mr. REY. We did notify our state cooperators in the firefighting 

effort. In fact, we reconvened the Blue Ribbon Commission to assess their views as to whether this was the right course of action. 

Senator CANTWELL. Good. So I would like to ask a question about 

that. I did not mean to interrupt, Mr. Rey. 

Mr. REY. No, go ahead. 

Senator CANTWELL. So what states have endorsed this proposal 

now? What states have said, yes, Mr. Rey, this is the way to handle 

the situation? 

60 

Mr. REY. We got a letter from about six Governors from the western United States this week. I will make it available for the record. 

I cannot remember which ones they are. 

Senator CANTWELL. And it says, we all support your plan? 

Mr. REY. It says this is the best course in a bad situation, is how 

I would paraphrase it. 

Senator CANTWELL. So you think you have an endorsement from 

states? 

Mr. REY. I would not hold them to that, no. But it is a measure 

of some support for the path that we have taken and that we are 

taking. 

Senator CANTWELL. I am not sure that is what I have heard from 

our state, but I will be happy to see your letters, because I think 

that is the other issue here, is that states are critical partners in 

a solution to this. 

Mr. REY. Absolutely. 

Senator CANTWELL. And I am not hearing from ours that this is 

the preferred path that they would like to see. 

Mr. REY. I will not suggest that all of the states are unified on 

this course. We have had a variety of input from the states. But 

with regard to some of them being supportive of the path that we 

have taken, there are some. And I am always eager and willing to 

talk to any State cooperator who wants to talk about alternatives. 

Senator CANTWELL. If I could just submit, I will submit something for the record. But we have had questions about these unmanned planes that are now being used in our international efforts, being used as reconnaissance for more specific targets on firefighting, that would help in safety. So I will submit that to the 

panel. Maybe we can get some feedback on whether that is something the FAA and others would consider. Obviously it does not 

help with the actual distribution and treatment, but it does help 

on reconnaissance. 

Thank you, Mr. Chairman. 

The CHAIRMAN. Thank you. 

Mr. Rey, the recommendations in the NTSB report are not that 

different from the recommendations made by the Blue Ribbon Commission established by the Forest Service in 2002. What aspect of 

the NTSB recommendations that were not in the Blue Ribbon Commission report made you cancel the contracts? 

Mr. REY. I think that the work that we did to respond to the 

Blue Ribbon Commission report was work we hoped would stand 

us in good stead as the NTSB completed its review. Our judgment 

was after the NTSB reviewed the work that we had completed and 

found it still inadequate to assure airworthiness we had taken our 

last swing in this particular at-bat. 

So it was a function of the timing of the two. We moved to do 

as much as we could to respond to the Blue Ribbon Commission report between their report in December 2002 and the NTSB’s report. 

We got the NTSB’s report, as I said in the answer to Senator Cantwell, we looped back to the Blue Ribbon Commission and said: 

‘‘What do you think we ought to do at this juncture?’’ And their advice—and I believe that Jim Hull from Texas is going to submit a 

statement for the record; he testified over on the House side—their 

61 

advice was to ground the planes, and I think that was sort of the 

final straw, if you will. 

The CHAIRMAN. Ms. Conners, did you see the Sandia recommendations? 

Ms. CONNERS. Yes, sir. The Sandia recommendations were reviewed during part of the investigation. 

The CHAIRMAN. Did you find them any different from the conclusions or recommendations that you have arrived at? 

Ms. CONNERS. Well, actually, sir, the Sandia report was essentially an evaluation of the existing maintenance and inspection programs. It provided that programs needed to be implemented, but 

we felt Sandia pretty much stated the obvious and did not provide 

information as to how the Forest Service could address the situation itself. 

It is a systematic issue. It is a process of procedures. It is a question of acquiring significant data. If I may, I would like to quote 

from the March 2004 Consortium for Aerial Firefighting Evolution 

report. It says: ‘‘The limited data collected to date indicates that 

the cyclic fatigue spectrum experienced in aerial firefighting aircraft is far more than the cyclic spectrum experienced by aircraft 

operating in a passenger cargo role. This can either accelerate the 

damage cracking of known structural problem areas and/or introduce damage cracking areas that have not been previously experienced by the worldwide fleet. The suitability of an aircraft in the 

aerial firefighting role can only be assessed by evaluating its structure against a load spectrum that correctly characterizes the aerial 

firefighting role.’’ 

This load spectrum, sir, is the key to the issue of the records. It 

is not just a question of when the oil was changed. It is a question 

of analyzing and acquiring load data, providing a sophisticated 

analysis of that load data. 

The CHAIRMAN. I do not think anyone thought that it had anything to do with oil change, Ms. Conners. 

Ms. CONNERS. No, sir. I am just referencing the fact that this is 

not—it is a systemic issue. It is not simply a situation—— 

The CHAIRMAN. I think all of us concluded that it was because 

of the failure of the wings of the aircraft. 

Ms. CONNERS. Yes, sir, you are correct. 

The CHAIRMAN. So what has that got to do with oil changes? 

Ms. CONNERS. I apologize, sir. I did not mean to appear glib. My 

statement was meant that we believe that a systematic approach 

to developing the maintenance program, as you stated in your 

opening remarks, is a process and the beginning initiation of that 

process that was occurring immediately after the accidents should 

continue with the assistance of the FAA. It is not a simplistic solution, and that is why our recommendations were that, because the 

risk cannot be precisely calculated, that the program needs to be 

put into place and this will take some time. However, it should be 

able to be done. 

The CHAIRMAN. Mr. Rey, were the Sandia recommendations implemented? 

Mr. REY. They are in the course of being implemented. Not all 

of them were completed. 

62 

The CHAIRMAN. Those recommendations were made in 2002, 

were they not? 

Mr. REY. Some of them were made in 2002 regarding inspection 

and maintenance. Others were still ongoing. Indeed, we were waiting for a final report from Sandia on some of the testing protocols 

that the NTSB Chair just mentioned. 

The CHAIRMAN. Mr. Sabatini, the set of recommendations that 

you have come up with, that the FAA has come up with, if those 

are implemented, suppose that all of those recommendations are 

implemented, then who would then have the final decision on 

whether those aircraft would fly again? 

Mr. SABATINI. It would be the Department of Interior. 

The CHAIRMAN. So I guess we come back to you, Mr. Rey. If those 

recommendations are implemented, would that mean that you 

would be disposed to allow these contracts to be renewed? 

Mr. REY. That would be our intention if all the recommendations 

are made. I would like to submit the recommendations to NTSB to 

see if they would provide any additional investigative findings. 

The CHAIRMAN. Would you need additional funds? 

Mr. REY. No. Actually, if we recontracted we would probably save 

money, because we would take some of the other replacement assets to a lower status and replace them with the airtankers. As I 

said earlier, the airtankers are more cost-effective. 

The CHAIRMAN. Do you have any idea how long it would take you 

to review and implement the FAA recommendations? 

Mr. REY. That was the ‘‘between 30 days and never’’ time span 

that I gave to Senator Burns. As I said, it is I think a reasonable 

supposition that some of the airtankers are not going to be able to 

provide, some of the operators are not going to be able to provide 

the required information for us, with the FAA’s assistance, to review the airworthiness question. Those would be never. 

But if everything works right in terms of all the information 

being available, I think 30 days to get something prepared is within a reasonable stretch. 

The CHAIRMAN. Mr. Timmons, Mr. Grantham, I would be glad to 

grant you some closing comments if you would like to make them, 

beginning with you, Mr. Timmons. Pull the microphone close to 

you, please. 

Mr. TIMMONS. Thank you. 

The CHAIRMAN. Thank you. 

Mr. TIMMONS. I appreciate the opportunity to testify here and 

talk. My concern is that as time goes on June will turn into July 

and July will turn into August and we are still going to be attempting to come to a conclusion what and who is going to be responsible 

for getting the aircraft back in the air. 

By that time, the 50 years of experience that are within this industry will be gone. These companies do not have the luxury of 

hanging on for a year and a year and a half. Most of these companies have expended all their resources to get ready for this fire season. In the case of Neptune, we traditionally borrow money in 

order to complete the maintenance inspections that we do on our 

aircraft. Those are not all reimbursed through our contract, especially the new inspections that were instituted and required by 

63 

Sandia. We are spending per airframe almost 500 additional manhours on wing inspections alone each year. 

So we do not have that opportunity. At this point in time we are 

borrowing money to make payroll. 

The CHAIRMAN. Thank you, Mr. Timmons. 

Mr. Grantham. 

Mr. GRANTHAM. I have basically the same comments Mr. 

Timmons would have, Your Honor. So thank you. We just hope it 

can get solved, and none of us want to fly unsafe equipment and 

all of us feel, I think this industry as a whole is a professional firefighting industry and we do not want to have accidents either. 

The CHAIRMAN. Thank you. 

I think particularly our government witnesses recognize how important this issue is. Mr. Rey, I will not argue with your point that 

perhaps the assets have been, quote, ‘‘replaced,’’ unquote. But in 

some of these fires that have taken place, particularly when they 

are simultaneous and in different states, we do not have enough 

assets. So to simply replace assets is not—I am afraid is not sufficient. 

We are all very worried, because every expert tells us there will 

be a repetition of last summer, given the same conditions that prevail throughout the West, particularly in the Southwest. It is the 

seventh year of a drought now. So I hope that we can make every 

asset available. 

But I also take your point, both Ms. Conners and Mr. Sabatini 

and yours, Mr. Rey, that safety has to be paramount. There have 

been three tragic accidents and unwarranted delays are not acceptable. But at the same time, we have to always recognize in our 

frustration that safety is paramount and we owe that to the families and individuals who will be flying these aircraft. 

So I understand that is a tough balancing act, but I also take 

Senator Burns’ point: Let us try to reach conclusions. In other 

words, if these aircraft can be made airworthy then let us do it. If 

they cannot, let us not. But let us not drag out the decision-making 

process, which, particularly where safety is concerned, is sometimes the easiest route. 

I thank the witnesses for being here this morning. I thank you. 

This is a very important issue and I hope that all of us understand 

that we have to do what we can, however we can, to make sure 

that as we face the almost inevitable devastation that lays ahead 

of us that we are as best equipped to address it. 

I thank the witnesses. This hearing is adjourned. 

[Whereupon, at 11:17 a.m., the Committee was adjourned.] 

(65) 

A P P E N D I X 

PREPARED STATEMENT OF HON. MAX BAUCUS, U.S. SENATOR FROM MONTANA

The 2004 fire season is already bearing down on us, and none of us need reminding that all indications are that this season could be at least as severe as the past 

several fire seasons. Add to that, the sudden announcement by USDA Forest Service 

and Bureau of Land Management to terminate every contract for large fixed wing 

air-tankers without a clear plan or next steps, and suddenly people in my home 

state of Montana and Westerners tell me they are bracing for a fire fighting season 

like no other. 

All of us are familiar with the fire which broke out in New Mexico last week and 

the criticism by New Mexico Governor Bill Richardson that for the lack of a single 

heavy air tanker a 100 acre blaze blew up to over 23,000 acres and now burns even 

as we gather today to discuss what will become of our Federal heavy air tanker 

fleet. 

As many of you are aware last year in my home state of Montana we experienced 

one of the most severe fire seasons on record across the state. We received good support from Canada in addition to our own heavy air-tankers and the aircraft which 

make up the Federal firefighting fleet. In fact at one point in August 2003 nearly 

18,000 of the nation’s 28,000 Federal firefighters were fighting fires in my state of 

Montana alone. 

Even so, given the complexities and dangers of fighting fire let me be clear and 

say without hesitation that firefighter and public safety is the number one priority 

in all firefighting operations. Irregardless of the resources that may or may not be 

available, safety always remains paramount. 

But today I am really troubled that heavy air tanker companies like Neptune 

Aviation of Missoula, Montana with signed Forest Service contracts, arrived in their 

offices early on the clock and ready for work last month to find a faxed form letter 

advising them business as usual was terminated. That’s just not right. 

Additionally, I am discouraged that Neptune and others were allowed to spend 

several millions of dollars to prepare for the upcoming fire season after signing contracts in January 2004, without any warning from the Forest Service at all. 

It is my understanding that Neptune and the other six companies received a termination notice from the Forest Service in the form of a faxed form letter, with no 

phone call or follow-up. These contracts were terminated after the companies were 

at their weakest financial point having invested all their remaining capital to prepare for a challenging fire season in anticipation of scheduled steady work. 

Neptune Aviation, Owner Mark Timmons and President Kristin Schloemer told 

me they never received any indication from the Forest Service or anyone else that 

they should hold up on their costly pre-season preparations and build their own 

back fire. 

Last week in a memo on Wildland Firefighter Safety for 2004 the National Interagency Fire Center at Boise, Idaho cautioned us to remember that a loss of heavy 

air-tankers ‘‘gives us one less tool in the toolbox and we must improvise and adapt 

to that loss.’’ The memo discussed the potential impacts of a shortage of heavy airtankers and that this factor could increase the likelihood of fires which escape initial attack measures and therefore result in the need for more firefighters. 

Yet the Forest Service assures Congress, people at home in Montana, across the 

West and throughout the Country that they are working overtime with the Federal 

Aviation Administration on both short and long term plans to address concerns 

about how to suddenly make do without resources firefighters and Westerners have 

counted on for more than fifty years with no transition plan or any clear next steps. 

In fact two weeks ago, Dale Bosworth, Chief of the Forest Service and his undersecretary for Natural Resources and Environment, Mark Rey told me again, firefighting resources across the west are well in hand for the upcoming season. Additionally, Chief Bosworth told me again the Forest Service would be working with 

the FAA to get more information from heavy air tanker companies about how to answer concerns about airworthiness. 

66 

From my perspective the May 10, 2003 National Transportation Safety Board report which started the chain of events we have been involved in throughout the past 

several weeks, began with a conclusion that all heavy air tankers are dangerous 

while, taking cues from some reasonable concerns raised in the 2002 Blue Ribbon 

Panel on the Aerial Firefighting Program. 

However, in my mind the NTSB Report appears to have made a conclusion which 

should be a hypothesis to be proven—not a foregone conclusion. My understanding 

is that an NTSB study looks at a unique event, like a heavy air tanker crash 

through a wide-angled lens and then assesses all the factors which contributed to 

the cause of a specific accident. The NTSB offers specific time-critical recommendations sent on to the Federal Aviation Administration to remedy the conditions which 

allowed the event to ever even occur. 

For example you may recall the ValuJet Crash into the Everglades in 1996. As 

a result of that crash, planes of that type across the industry were all grounded immediately upon a recommendation of the NTSB to FAA. As a remedy to ensure airworthiness for these planes, the NTSB also recommended that the FAA dispatch 

teams of inspectors to make immediate on-site visits across the country to each 

plane to ‘‘re-certify’’ them as airworthy or ground them for further inspection if necessary. 

However, the NTSB did not recommend dismantling an entire industry as a result 

of a troubling and tragic crash. Furthermore, as you may recall within two weeks 

most of these planes (many more than the 37 we are discussing today) were back 

in the air. That is how a typical NTSB report with recommendations to the FAA 

works. 

But that is not the path which the NTSB report took in this case. Rather, this 

NTSB report appears to be something altogether different; a broad-brushed statement about the culture and nature of the heavy air-tanker industry. 

The May 10 NTSB report also fails to make any clear recommendations to the 

FAA which—again, is typical to nearly every NTSB accident study, which nearly always directs a Federal regulator like FAA to address safety in a specific way after 

an accident. 

This action by NTSB appears atypical in many ways of most other reports they 

have issued. And Chairman McCain and Members of the Committee, that is the 

issue. 

The National Transportation Safety Board, the Federal Aviation Administration, 

the Forest Service and the Bureau of Land Management have concerns about safety 

as well they should. 

However this NTSB report is ambiguous and non-scientific, the FAA has received 

no clear mandate as a result of this report, and the Forest Service and Bureau of 

Land Management who are not regulators, are suddenly citing wide-spread fatigue 

as their greatest concern about heavy air tanker airworthiness, without attaching 

substantiated evidence to corroborate their decision to suddenly terminate these 

contracts with no transition plan and no next steps. Furthermore, the report as it 

now stands has become the impetus to shut down an entire industry. 

Last night as my staff and I prepared this statement I learned from Neptune 

Aviation that indeed they had just received a list of follow-up requirements from 

the FAA on additional documents that agency would ask Neptune to provide to certify the airworthiness of their heavy air tankers. As I mentioned, two weeks ago 

Chief Bosworth and Undersecretary Rey had promised this list of follow-up requirements would be forthcoming to companies like Neptune. 

The immediate feedback I received from Neptune was positive. They told my staff 

they were certain they could supply all of this information to the FAA with ease 

to re-establish that their aircraft are indeed airworthy. 

But then just a few minutes later, I also received a draft response from the Forest 

Service to the FAA outlining a new round of concerns by the Forest Service about 

general airworthiness of these aircraft. 

Again, the Forest Service offered a broad-brush approach to the entire industry 

by citing additional unsubstantiated concerns that each and every aircraft in the 

heavy air tanker fleet are plagued by systemic wide-spread fatigue. 

Additionally, I am really troubled that the Forest Service terminated these contracts without any warning or a clear transition plan for the operators and firefighters already gearing up for the season. In fact I am told some of these heavy 

air tankers were already deployed to the ground for the firefighting season. 

Montanans—including myself, simply want to see the NTSB and the FAA sit 

down with the Forest Service and BLM and have a think session to identify an FAA 

team that can get out on the groimd this week to work with local FAA inspectors 

and the heavy air tanker operators to get these planes inspected and certified as 

airworthy or not, to protect our home states, while we work out a parallel transition 

67 

plan and next steps to address the broader issues and over-arching concerns 

brought forward by the Forest Service and the NTSB report. 

These heavy air tanker companies don’t have days, weeks, months or years to 

hang on and keep their teams in place, while the Federal Government gets their 

ducks in a row. Companies like Neptune Aviation tell me they have already issued 

some lay-off notices to their staff. 

The past tragedies of heavy air tankers like those which crashed in Wyoming two 

years ago have indeed prompted an unprecedented look at the Nation’s aviation program. And in the past two years of discussion we have learned that some companies 

are indeed better actors than others, some companies provide us with a better value 

as taxpayers than others and some aircraft are more airworthy than others. But we 

have not yet received inconclusive evidence that our heavy air tanker industry as 

it stands today merits a dismantling and that all heavy air tanker companies are 

the same. 

Dispatching FAA teams to each heavy air tanker facility to conclusively establish 

airworthiness based upon a fixed list of criteria is a measured and warranted approach. But to continue to raise the ante and arbitrarily move the goal posts on how 

these companies will be measured and assessed is unreasonable and unnecessarily 

penalizes companies like Neptune with solid maintenance and FAA certification 

records. 

We all know leadership is not easy. People in positions to make decisions must 

be called out to roll up their sleeves to do so. In the West we don’t finger-point at 

one another and suggest another guy ought to go and fix a problem first. We roll 

up our sleeves and get after it for the good of the order. Heavy-air-tanker contractors and Westerners just want, and deserve, expeditious answers and to be treated 

individually by their elected officials and Federal agency staff. 

I believe it is our collective duty to ensure that the companies we are discussing 

today, like Neptune, are treated fairly as well as to ensure that our firefighters and 

our communities have all of the available tools they need to fight the upcoming fire 

season. 

YODICE ASSOCIATES

Washington, DC, May 19, 2004 

KRISTEN SCHLOEMER, President, 

Neptune Aviation Services, 

Missoula, MT. 

Dear Ms. Schloemer: 

On behalf of Neptune Aviation Services, you have asked us to write an opinion 

of counsel letter regarding the definition of a ‘‘public’’ versus a ‘‘civil’’ aircraft. These 

are terms that are found in the Federal Aviation Administration’s statute and regulations and dictate the rules that must be followed when operating an aircraft. All 

aircraft being operated in the United States fall into one definition or the other. Essentially, public aircraft are aircraft that are operated by the government for a function of the government not involving compensation or hire. The number of aircraft 

that qualify as public aircraft is very limited. A classic example of a public aircraft 

is a military armed forces aircraft, and in those instances, the aircraft is not registered with the FAA, does not have an airworthiness certificate issued by the FAA, 

is not required to comply with FAA maintenance regulations, and is relieved from 

compliance with many of the operating rules. The vast majority of aircraft being operated in the United States, including many aircraft being operated on government 

business, are civil aircraft. 

Neptune Aviations Services provides firefighting flights for the U.S. Forest Service, an Agency under the Department of Interior, pursuant to a government contract 

executed annually between Neptune and the Forest Service. Basically, the contract 

provides that Neptune will provide fire-fighting services, including aircraft and 

crew, to the Forest Service in exchange for monetary compensation. The question 

that has arisen recently is whether the operations conducted by Neptune for the 

Forest Services are considered to be operations by a public aircraft or a civil aircraft. 

Congress defined civil and public aircraft in the U.S. Code, as part of the FAA’s 

enabling statute. The FAA has adopted those definitions, in summary fashion, in 

its Code of Federal Regulations, and the FAA has issued guidance material to aid 

in the application of those definitions to industry operations. Only a few cases have 

discussed the issue. When determining whether an aircraft is public or civil, you are 

required to consider the type of operation the aircraft is involved in and not necVerDate Nov 24 2008 08:13 Jan 03, 2018 Jkt 075679 PO 00000 Frm 00071 Fmt 6601 Sfmt 6621 S:\GPO\DOCS\27958.TXT JACKIE
68 

essarily the purpose that the aircraft was built or the person who owns the aircraft. 

Historically, the definition of public aircraft has been strictly interpreted, seeming 

to err on the side of finding that there should be FAA regulation, control, and oversight, rather than not. 

In pertinent part, 49 U.S.C. § 40102(a)(41) defines ‘‘public aircraft’’ as follows: 

(A) Except with respect to an aircraft described in subparagraph (E), an aircraft 

used only for the United States Government, except as provided in section 

40125(b). 

. . . 

(B) An aircraft owned or operated by the armed forces or chartered to provide 

transportation to the armed forces under the conditions specified by section 

41125(c). 

49 U.S.C. § 40125(b) provides that, ‘‘An aircraft described in subparagraph (A), 

(B), (C), or (D) of section 40102(a)(37) [sic] does not qualify as a public aircraft under 

such section when the aircraft is used for commercial purposes or to carry an individual other than a crewmember or a qualified non-crewmember.’’ The same section 

also provides that, ‘‘The term ‘commercial purposes’ means the transportation of 

persons or property for compensation or hire . . .’’ and ‘‘The term ‘governmental 

function’ means an activity undertaken by a government, such as . . . firefighting 

. . . .’’ 49 U.S.C. § 40102(a)(16) defines ‘‘civil aircraft’’ as ‘‘an aircraft except a public 

aircraft.’’ 

Thus, the statutory definition of public aircraft, as it would apply to the firefighting services that Neptune is performing for the Forest Service, may preclude 

a conclusion that Neptune is operating public aircraft. Under its contract with the 

Forest Service, Neptune is providing the aircraft, and all related services, and performing an operation for the United States Government that may be identified as 

a governmental function. However, Neptune is in control of these operations and is 

performing these operations for a commercial purpose, i.e., has been hired by the 

Government and is being compensated by the Government. Consequently, Neptune 

would be considered to be operating civil aircraft. 

The FAA definitions and interpretations comport with this conclusion. In pertinent part, the FAA defines public and aircraft as follows: 

Public aircraft means any of the following aircraft when not being used for a 

commercial purpose or to carry an individual other than a crewmember or 

qualified non-crewmember: 

(1) An aircraft used only for the United States Government; . . . 

(i) For the sole purpose of determining public aircraft status, commercial purposes means the transportation of persons or property for compensation or hire, . . . 

(ii) For the sole purpose of determining public aircraft status, governmental function means an activity undertaken by a government, such 

as national defense, intelligence missions, firefight, search and rescue, 

law enforcement (including transport of prisoners, detainees, and illegal 

aliens) aeronautical research, or biological or geological resource management. 

. . . . 

Civil aircraft means aircraft other than public aircraft. 

14 C.F.R. § 1.1. The FAA has drafted guidance on these definitions and application of them within the industry in FAA Advisory Circular No. 00–1.1 (April 19, 

1995). ‘‘The purpose of this advisory circular (AC) is to provide guidance on whether 

particular government aircraft operations are public aircraft operations or civil aircraft operations under the new statutory definition of ‘public aircraft.’ ’’ The FAA 

notes that its ‘‘long-standing interpretation has been that, where there is a receipt 

of compensation, such an operation is ‘for commercial purposes’ and that such an 

operation therefore is not a public aircraft operation. . . . The general purpose of 

the new law, as reflected in the legislative history, is to extend FAA regulatory oversight to some government aircraft operations. In part, Congress determined that 

government-owned aircraft, which operate for commercial purposes or engage in 

transport of passengers, should be subject to the regulations applicable to civil aircraft.’’ 

The applicable key phrase that stands to remove an aircraft from public aircraft 

status is ‘‘for commercial purposes,’’ which is defined as being for compensation or 

hire, i.e., when the operator of the aircraft is receiving direct or indirect payment. 

69 

The Forest Service hired Neptune to conduct firefighting flights in exchange for 

compensation. This arrangement is captured in a written contract between the two 

parties. Thus, although the aircraft are being used to perform a governmental function, the aircraft are nonetheless engaged in aerial operations for compensation or 

hire. The Forest Service is a customer who has paid an independent contractor for 

an aviation service, albeit to satisfy a Forest Service responsibility. 

Moreover, Neptune has always operated its aircraft as civil aircraft. Neptune 

holds an FAA-issued type certificate for its P2V aircraft, which ‘‘prescribes conditions and limitations under which the product for which the Type Certificate was 

issued meets the airworthiness requirements of the Federal Aviation Administration.’’ Neptune has registered its aircraft with the FAA, and the aircraft are marked 

with U.S. registration ‘‘N’’ numbers, in accordance with 14 C.F.R. Part 47. The FAA 

has issued airworthiness certificates to Neptune’s aircraft, which specifically identifies the civil airworthiness maintenance requirements that must be satisfied to operate the aircraft in an airworthy condition. And, Neptune complies with Airworthiness Directives issued by the FAA pursuant to 14 C.F.R. Part 39, which are issued 

by the FAA at any time that the FAA determines that an unsafe condition exists 

in a product and that condition is likely to exist or develop in other products of the 

same type design, thus requiring compliance with an identified maintenance procedure. The FAA conducts inspections of Neptune’s aircraft, pilots, and facilities for 

compliance with the FAA’s regulations. Neptune’s pilots hold current and appropriate FAA-issued pilot and medical certificates. And, Neptune holds a certificate 

under and complies with 14 C.F.R. Part 137, which is required of civil aircraft involved in forest firefighting aerial operations. 

The principles applicable to defining public and civil aircraft are not limited to 

a model or type of aircraft, but may apply to any aircraft. The critical distinction 

for purposes of concluding the public or civil status of the aircraft is the manner 

in which the aircraft is operated. 

Sincerely, 

KATHLEEN A. YODICE

Æ