Last week’s temporary pause on operations of certain Bell medium helicopters in the wake of a fatal Bell 212 crash underscored the extent to which U.S. and Canadian firefighting agencies rely on these aging aircraft for personnel transport. It also renewed the debate over whether surplus military Black Hawk helicopters — which are now widely used in the U.S. for water dropping operations — should be permitted to carry firefighters, given that many of these Black Hawks are newer and more robust than some legacy models used for this purpose today.
In fact, legislation introduced in the U.S. Senate last year would have enabled firefighters to be carried aboard surplus military and other restricted category aircraft while engaged in wildfire suppression missions. However, objections from the Federal Aviation Administration (FAA) and unrelated political wrangling meant that the version of the legislation that made it into the FAA Reauthorization Act in May was greatly reduced in scope.
Section 360 of the FAA Reauthorization Act directs the FAA to conduct rulemaking to allow firefighters to be carried aboard restricted category aircraft. However, it specifically excludes surplus military aircraft, which account for the majority of helicopters in the restricted category fleet. The effective consequence of the law is to create a special dispensation for Lockheed Martin Sikorsky’s S-70M Firehawk, which costs as much as $25 million to acquire new, versus a few million dollars for a refurbished military Black Hawk.
This outcome does not reflect the original intent of the lawmakers who introduced the legislation, but that’s not due to any superior lobbying efforts by Sikorsky. Instead, it embodies the FAA’s reluctance to change its stance on restricted category aircraft, filtered through a Congressional process that allotted more time and attention to other priorities. In this article, Vertical unpacks the regulatory barriers to carrying firefighters aboard surplus military aircraft, the recent effort in Congress to overcome them, and why that attempt ultimately failed — at least for now.
Restricted category recap
Vertical has reported extensively in the past on the legal hurdles to carrying firefighters aboard restricted category aircraft. These are aircraft that do not hold a standard category type certificate, but are certificated by the FAA for a limited number of special purpose operations, such as dropping water on fires.
Historically, many restricted category aircraft have been surplus military aircraft that have not had to demonstrate compliance with civil aircraft standards for certification and continued airworthiness. After the Vietnam War, many former military helicopters such as Bell UH-1 Hueys found their way into aerial firefighting under the restricted category, and today ex-military Sikorsky UH-60 Black Hawks and Boeing CH-47 Chinooks have become essential components of the U.S. wildland firefighting arsenal.
Because restricted category aircraft are not required to meet all civil airworthiness requirements, the FAA minimizes the risk they present to the public by imposing certain operating limitations, which are spelled out in 14 Code of Federal Regulations 91.313. Among other things, restricted category aircraft may not carry persons or property for compensation or hire. Other than flight crewmembers and trainees, they are also prohibited from carrying any person who does not perform an essential function in connection with a special purpose operation for which the aircraft is certificated, or who is necessary to accomplish the work activity directly associated with that special purpose.
For a restricted category helicopter that is certificated for water dropping, a firefighter may be carried on board to perform an essential function such as hooking up a water bucket. However, the FAA affirmed in a 2018 legal interpretation that a restricted category aircraft cannot legally transport firefighters for ground firefighting, even if a water dropping operation is performed along the way.
Notably, many aircraft that would otherwise fall into the restricted category are operated as public aircraft, meaning by or exclusively for a government entity for an approved governmental function. Public aircraft may legally carry qualified non-crewmembers “whose presence is required to perform, or is associated with the performance of, a governmental function” — a more liberal definition that can include ground firefighters.
However, even an exclusive contract with a government entity such as the U.S. Forest Service does not automatically confer public aircraft status. In an advisory circular (AC) re-issued in 2018, the FAA states that civil operators under contract with a government entity must obtain from that entity a written declaration of public aircraft status before conducting public aircraft operations (PAO). “Contracting government entities must be aware that PAO performed by civil operators create a significant transfer of responsibility to the contracting government entity, and that most FAA oversight ceases,” the AC states.
Because surplus military helicopters can offer better performance at a lower cost than comparable standard category helicopters, many state and local government entities have decided that the advantages of using them for missions including transporting firefighters justify them taking on the associated oversight responsibility. In 2018, the federal Bureau of Land Management also issued a PAO declaration for a contracted restricted category UH-60A Black Hawk after the FAA made it clear that the helicopter could not legally transport firefighters without one.
The Forest Service, as the nation’s largest contractor of firefighting aircraft, routinely makes PAO declarations for aircraft engaged in dropping water or fire retardant. When it comes to transporting firefighters and other government personnel, however, it prefers to leave oversight responsibility with the FAA. “As in years past the agency continues to use the standard category helicopter fleet for passenger transport,” a Forest Service spokesperson confirmed to Vertical.
Historically, surplus military aircraft were perceived as less safe than standard category aircraft due to looser certification requirements and lax record-keeping, but that’s no longer necessarily the case. Even the first version of the Black Hawk, the UH-60A, was developed to meet higher standards for redundancy and crashworthiness than some of the older standard category helicopters transporting firefighters today, and most surplus military helicopters come with complete maintenance documentation (which the new owner must then keep up to date).
While the Forest Service is beginning to modernize its contract helicopter fleet through its Multiple Award Task Order Contract (MATOC) system, most standard category helicopters are still more expensive and carry less payload than surplus UH-60A and L-model Black Hawks. Meanwhile, Sikorsky has declined to pursue FAA certification for its modern S-70M Black Hawk in the standard category, instead obtaining a restricted category special airworthiness certificate for the model in 2021. The S-70M is physically identical to the S-70i that is operated as a public aircraft by some agencies including Cal Fire, but has different technical publications associated with its restricted category certification. It is marketed as the Firehawk when modified for aerial firefighting.
Congress steps in
Champions of surplus military Black Hawks have long maintained that there is a strong case to be made for carrying firefighters aboard these high-performing, cost-effective, widely available helicopters, and they found a receptive ear in Congress. In May 2023, Arizona Senator Mark Kelly (D) and Wyoming Senator Cynthia Lummis (R) introduced the Wildfire Response Aviation Modernization and Safety Act, which directed the FAA to allow the transport of firefighters on board a restricted category aircraft while on a mission to suppress a wildfire.
In a press release announcing the act, Lummis declared it “just makes sense” and “will allow us to use every safe aircraft at our disposal to get firefighters to wildfire areas to save lives, homes and property.” The act as originally introduced applied to aircraft type certificated in the restricted category and made no reference to surplus military aircraft.
The FAA made it clear in comments to the Senate Committee on Commerce, Science and Transportation that it didn’t think carrying firefighters aboard restricted category aircraft — including surplus military aircraft — was a good idea. By the time the Senate introduced its FAA Reauthorization bill in June 2023, the Wildfire Response Aviation Modernization and Safety Act had morphed into Section 339 of that bill.
Section 339 still created a pathway for firefighters to be carried aboard restricted category aircraft by designating firefighters as essential crewmembers for wildfire suppression missions. However, it directed the FAA to conduct formal rulemaking to enable it, and specified that the agency could impose upon these operations the same aircraft maintenance, inspections and pilot training requirements that apply to Part 135 air taxi operations. Additionally, Section 339 added a provision specifically excluding surplus military aircraft, defined as “any aircraft of a type that has been manufactured in accordance with the requirements of and accepted for use by, any branch of the United States Military and has later been modified to be used for wildfire suppression operations.”
Meanwhile, the House of Representatives was working on its own FAA Reauthorization bill. The House bill addressed the transport of firefighters aboard restricted category aircraft in Section 866, which was very similar in language to Section 339 in the Senate bill. To the prohibition against surplus military aircraft, however, the House bill added the qualifier, “unless such aircraft is later type-rated by the Administrator.” The language was imprecise — aircraft are type certificated by the FAA, not type rated — but the intent seemed to be to enable the use of surplus military aircraft with FAA restricted category type certificates, which encompasses most of the surplus military helicopters currently used in the U.S. for wildfire suppression.
The FAA still wasn’t enthusiastic about the idea of allowing restricted category aircraft to transport firefighters. In a letter to the ranking members of the Senate Commerce Committee and House Committee on Transportation and Infrastructure in January 2024, Secretary of Transportation Pete Buttigieg reiterated the FAA’s concerns around Section 866.
“The Department [of Transportation] understands the critical need for the services of firefighters across the country, but their safe transportation is paramount,” Buttigieg wrote. “While the House bill would allow the Administrator to include Part 135 maintenance, inspection, and pilot training requirements in the required rulemaking enabling firefighter transport, this does not address the underlying discrepancies in the aircraft certification basis that are also essential for passenger safety, exposing firefighters to additional risk.”
Ultimately, the Senate language excluding surplus military aircraft prevailed in the form of Section 360 in the final version of the reauthorization bill, agreed to by the House and Senate. In a last-ditch effort to preserve the original intent of their legislation while also addressing safety concerns, Senators Kelly and Lummis on May 7 introduced an amendment that would have enabled the use of certain surplus military aircraft to transport firefighters. Specifically, the amendment made eligible aircraft manufactured after 1970 and equipped with redundant hydraulic systems and two engines with full authority digital engine control (FADEC) — criteria tailored toward the Black Hawk.
By that point, however, the Senate was mired in disagreement over a provision in the final bill that added five new slots for flights out of Ronald Reagan Washington National Airport. Senate leaders ultimately blocked voting on any amendments rather than risk derailing the legislation in its entirety. Thus, the FAA Reauthorization Act passed with Section 360’s blanket exclusion of surplus military aircraft intact.
Enabling the S-70
What restricted category helicopters suitable for transporting firefighters remain once surplus military helicopters are excluded? Essentially just new S-70M helicopters, plus some older S-70s originally built for the export market, including a few operated by Firehawk Helicopters.
“This new authorization opens new opportunities for Firehawk usage and increases its availability to fight wildfires,” a Sikorsky spokesperson told Vertical. “The ability to bring firefighters onboard the newest configuration and closer to the fight will be a game-changer in our customers’critical missions of saving lives and preserving properties.”
The FAA is now mandated to conduct rulemaking within the next 18 months that will enable these aircraft to transport firefighters to and from the site of a wildfire, while imposing whatever aircraft maintenance and pilot training requirements the FAA deems necessary to ensure their safety.
The FAA already has a significant rulemaking backlog, and Section 360 of the FAA Reauthorization Act will add to it. In his January 2024 letter to ranking members of Congress, Buttigieg pointed out that “the FAA anticipates that it will be challenging to develop a rule for which the benefits exceed the costs,” given the agency’s safety concerns with such a rulemaking. When contacted by Vertical, the FAA declined to elaborate, stating only: “We will comply with the requirements of the Reauthorization Act.”
Meanwhile, when asked whether it will re-evaluate its position toward transporting firefighters aboard restricted category aircraft once FAA rulemaking opens the door to carrying them aboard S-70 helicopters, the Forest Service did not provide a direct answer. The Forest Service classifies Black Hawks as Type 1 heavy helicopters, and it has generally avoided Type 1 helicopters for personnel transport ever since seven firefighters were killed and three more seriously injured in the “Iron 44” crash of a standard-category Sikorsky S-61N helicopter in 2008.
However, this stance changed in fiscal year 2023, when “a team of agency Subject Matter Experts reviewed and considered operational safety factors associated with Type 1 Standard Category passenger transport resulting in the eventual drafting of the contract requirements as found in the Helicopter Support Services Multi-Award Task Order Contract,” a Forest Service spokesperson told Vertical via email. The agency has since awarded several Type 1 contracts to Precision LLC for missions including passenger transport using standard category Airbus AS332 L1 helicopters, which are comparable to the Black Hawk in performance.
“To maintain operational resiliency, we contract a diverse fleet of helicopters, evaluating aircraft proposed in response to government solicitations against contract requirements and evaluation criteria,” the spokesperson stated. “As of 2023 we have awarded multiple indefinite delivery/indefinite quantity helicopter contracts and are in the process of evaluating another. The requirements in future solicitations will be determined based on our need, funding, and in alignment with our current policy.”