[Senate Hearing 108-1032]
[From the U.S. Government Publishing Office]


                                                      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
                             
                             
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       SENATE COMMITTEE ON COMMERCE, SCIENCE, AND TRANSPORTATION

                      ONE HUNDRED EIGHTH CONGRESS

                             SECOND SESSION

                     JOHN McCAIN, Arizona, Chairman
TED STEVENS, Alaska                  ERNEST F. HOLLINGS, South 
CONRAD BURNS, Montana                    Carolina, Ranking
TRENT LOTT, Mississippi              DANIEL K. INOUYE, Hawaii
KAY BAILEY HUTCHISON, Texas          JOHN D. ROCKEFELLER IV, West 
OLYMPIA J. SNOWE, Maine                  Virginia
SAM BROWNBACK, Kansas                JOHN F. KERRY, Massachusetts
GORDON H. SMITH, Oregon              JOHN B. BREAUX, Louisiana
PETER G. FITZGERALD, Illinois        BYRON L. DORGAN, North Dakota
JOHN ENSIGN, Nevada                  RON WYDEN, Oregon
GEORGE ALLEN, Virginia               BARBARA BOXER, California
JOHN E. SUNUNU, New Hampshire        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
                           
                           
                           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

 
                      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 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 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 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, 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.
    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.

    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.
    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 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.
    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 maintenance 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).
    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 low-level 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 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 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.
    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 information 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:]

 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 aircraft 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 comments 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 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 single-engine 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 criteria 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 
 Resources 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 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 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 Multi-agency 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 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.
---------------------------------------------------------------------------
    \1\ NTSB Safety Recommendation A-04-29 through 33, dated 23 April 
2004
---------------------------------------------------------------------------
                                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\
---------------------------------------------------------------------------
    \2\ Source: U.S. Department of Agriculture-US Forest Service, and 
Department of Interior study 1995, 8.7 in benefit to cost of program.
    \3\ Source: Aerial Firefighting Industry Association (AFIA)
---------------------------------------------------------------------------
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.
---------------------------------------------------------------------------
    \4\ Aeronautical decision-making, airmanship, attempt at visual 
flight in instrument conditions and mid-air collisions lead the causes.
---------------------------------------------------------------------------
    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 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.''
---------------------------------------------------------------------------
    \5\ The 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 airspeed (between 218 and 228 
knots indicated) when the certificated (by STC) and Lockheed/USAF limit 
was set at 180kts.
    \6\ The 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.
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    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\.
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    \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.
    \8\ Supplemental Type Certificate approving the installation with 
operational instructions for the 3,000-gallon retardant tank, issued to 
Hemet Valley Flying Services.
    \9\ Depending 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.
    \10\ On 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.
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    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 box-type 
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 at rivet holes along angle-braces inside the 
wing box (points of stress concentration--``stress risers'') in the 
wing skin structure.
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    \12\ The 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.
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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.
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    \13\ Fatal 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.
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    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.''
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    \14\ NTSB Investigation LAX-94-F-A323
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    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.
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    \15\ Zaremba v. Lockheed et al., SDSC680802, Calif Sup Ct, San 
Diego; In re: Crash of Lockheed C130A near Pearblossom CA., August 13, 
1994
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    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.
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    \16\ Crew Resource Management, (see Wiener, Kanki, Helmreich 
Cockpit Resource Management), Academic Press, 1993 for treatise on the 
subject.
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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 sections,'' 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.
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    \17\ Findings confirmed by the California engineering laboratory of 
Fowler, Inc.
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    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\
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    \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
    \21\ William B. Scott, Initial Attack, Aviation Week & Space 
Technology, November 3, 2003
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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\
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    \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.
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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\
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    \27\ On 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.
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    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:
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    \28\ In addition to having served as an FAA Inspector, and a career 
NTSB Investigator-in-Charge, Mr. Stockhill holds an FAA Aircraft and 
Powerplant Certificate, with FAA Inspection Authority (A&P/IA)
    \29\ FAA Part 135 refers to the certificate holders who maintain 
and fly scheduled commuter and on-demand aircraft.
    \30\ FAA 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.
    \32\ Stockhill, Aviation Maintenance, November 2003/Vol. 22, Number 
11

   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.

   Full inspection protocol in place to comply with problem 
        areas as defined by airworthiness directives, with dedicated 
        NDI personnel.\33\
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    \33\ Non-destructive inspection and testing personnel qualified to 
Level II magnetic particle, and other NDI protocol

   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\
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    \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 now-accepted practice of 
providing ground support and dedicated mechanics to repair airplanes 
after the missions, allowing aircrews to rest after flying all day.
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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.
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    \35\ Part 61.58 Pilot in Command proficiency check; Operation of 
aircraft requiring more than one flight crewmember
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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.
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    \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.
    \37\ P2V 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.
---------------------------------------------------------------------------
    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 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\
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    \38\ Change 1 to NAVAIR NATOPS 01-75EDA-1, Part 4
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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-the-art 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 FAA-Approved 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, 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.
---------------------------------------------------------------------------
    \39\ Prior 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 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.
---------------------------------------------------------------------------
                                 ______
                                 

            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.
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 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 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.
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 airframe 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.
    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:]

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 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 
Operators 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 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 already 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 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 information 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 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.
    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.
    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 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. 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 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.
    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. 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 requirements, 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 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 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.

               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?
    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?
    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 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.
    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 Sandia. We are spending per airframe 
almost 500 additional man-hours 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.]

                            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 air-tankers 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.
    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 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 necessarily 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. Sec. 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. Sec. 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. 
Sec. 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. Sec. 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. 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
                                         

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