SUPPLEMENTARY INFORMATION:

I. Executive Summary

In response to regulatory changes required by section 360, “Wildfire Suppression,” of the FAA Reauthorization Act of 2024 (Pub. L. 118-63), and for FAA to gather additional information to assist in developing a proposed rule and assess its likely economic impact, FAA is publishing this ANPRM, which contemplates proposed amendments to §§ 91.313 and 119.1 of title 14 of the Code of Federal Regulations (14 CFR) to allow for the transportation of firefighters to and from the site of a wildfire to perform active ground wildfire suppression using restricted category aircraft. Currently, under § 91.313(d), no person may be carried on a restricted category civil aircraft ^[1] unless that person is a flight crewmember, a flight crewmember trainee, performs an essential function in connection with a special purpose operation for which the aircraft is certificated, is necessary to accomplish the work activity directly associated with that special purpose, or is necessary to accomplish an operation outlined in § 91.313(h). Consequently, unless the firefighters are essential to the aerial dispensing of liquids, the transportation of firefighters to and from the site of a wildfire to perform active ground wildfire suppression on a restricted category civil aircraft is currently prohibited. To assist in developing the most appropriate regulatory proposal responding to section 360, FAA is seeking public comment through this ANPRM, as discussed in more detail below.

II. Tips for Preparing Your Comments

FAA seeks public comment on the areas outlined within this ANPRM. FAA also seeks comments on how this rulemaking could be implemented to meet the objective of the proposal in a manner that maximizes benefits without imposing excessive, unjustified, or unnecessary costs.

Specific questions are included in this ANPRM immediately following the discussion of the relevant issues. FAA asks commenters to provide as much information as possible on any questions of interest to the commenter. In some areas, FAA requests very specific information. Whenever possible, please provide citations and copies of any relevant studies or reports on which you rely, including cost data, as well as any additional data that supports your comment. It is also helpful to explain the basis and reasoning underlying your comment. Each commenting party should include the identifying number of the specific question(s) to which it is responding. ( printed page 58030)

FAA will use comments to make decisions regarding the content and direction of a notice of proposed rulemaking (NPRM) or other future rulemakings related to section 360. Comments, including proposals for rulemaking, will be considered within the context of FAA's existing statutory authority.

III. Authority for This Rulemaking

FAA's authority to issue rules on aviation safety is found in title 49 of the United States Code. Subtitle I, section 106 describes, in part, the rulemaking authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of FAA's authority. In carrying out part A (Air Commerce and Safety) of subtitle VII, the Administrator is charged with prescribing regulations and minimum standards for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This ANPRM is within the scope of that authority.

In addition, section 360 of the FAA Reauthorization Act of 2024 (Pub. L. 118-63), requires FAA to issue a rule not later than 18 months after enactment of section 360 permitting special purpose operations described in 14 CFR 21.25(b)(7) to allow for the transport of firefighters to and from the site of a wildfire to perform ground wildfire suppression and to designate the firefighters conducting the operation as essential crewmembers on board a covered aircraft operated on a mission to suppress wildfires. Section 360 provides the aircraft maintenance, inspections, and pilot training requirements under 14 CFR part 135 may apply to such an operation as determined by the Administrator to be necessary to maintain the safety of firefighters carrying out wildfire suppression missions, and the noise standards described in 14 CFR part 36 shall not apply to such an operation. In addition, section 360 states in issuing a rule, FAA shall not enable aircraft of a type that has been manufactured in accordance with the requirements of the Armed Forces and was later modified to be used for wildfire suppression. Finally, section 360 requires the Administrator to revise FAA Order 8110.56, “Restricted Category Type Certification” (Feb. 27, 2006), to reflect the requirements of section 360.

IV. Background

The landscape and dynamics of fighting wildfires in many areas throughout the United States has changed since 2020. According to data from the National Interagency Fire Center, from 2020 through 2024 there have been an average of 61,680 wildfires and 7,288,791 acres burned each year within the United States.^[2] Providing greater flexibility by allowing restricted category aircraft conducting civil aircraft operations, or public aircraft operations (PAO) with civilian operators that own restricted category aircraft, to transport firefighters so they may perform ground wildfire suppression has the potential to limit the spread of wildfires and possibly prevent loss of life and property. The purpose of this ANPRM is to gather data to inform the FAA action regarding the transportation of firefighters to and from the site of wildfires onboard restricted category civil aircraft with the goal of enabling more means by which those firefighters can be transported.

A. Section 360 of the FAA Reauthorization Act of 2024

In order to ensure sufficient resources are available to suppress wildfires and protect public safety and property, Congress mandated a rulemaking under section 360 to designate firefighters as “essential crewmembers.” ^[3] Section 360 further directs FAA to issue a rule under which an operation specified by FAA would allow firefighters to be transported on a restricted category civil aircraft to and from the site of a wildfire so those firefighters could perform ground wildfire suppression. Section 360 prohibits former military aircraft from being used to transport firefighters; removes the noise standard requirements of part 36 for such operations; and requires FAA to update FAA Order 8110.56, “Restricted Category Type Certification” to align with the section 360 requirements.

B. Public Aircraft Operations

One pathway for conducting firefighting operations is as a Public Aircraft Operation. Operating under public aircraft status is a statutory authority reserved only for certain government entities and contractors operating on behalf of a valid government entity.^[4] Government entities may elect to operate any given flight, or the flights conducted by operators that are contracted by the governmental entity, as a PAO or as a Civil Aircraft Operation (CAO).^[5] The determination as to whether the flight will be conducted as PAO or CAO should be made before each flight. When a government entity is operating an aircraft as a PAO, many of FAA's regulations do not apply.^[6] For example, aircraft and airman certification regulations generally do not apply to PAO, but any regulation applicable to “aircraft” (rather than “civil aircraft”) does apply. As a result, FAA has less oversight and regulatory authority over PAO. The government entity conducting PAO is responsible for oversight of those operations.^[7]

There are statutory requirements a government entity must meet to conduct PAO. Specifically, the aircraft used must meet the definition of a public aircraft under 49 U.S.C. 40102(a)(41). Public aircraft are defined differently depending on the government entity owning or operating the public aircraft. For example, a public aircraft leased by a State, the District of Columbia, territories and possessions of the United States, or a political subdivision of one of those governments, must be exclusively leased for 90 continuous days.^[8] In addition to meeting the definition of a “public aircraft” under 49 U.S.C. 40102(a)(41), the operation must also meet the public aircraft requirements under 49 U.S.C. 40125. For example, public aircraft, other than those operated by the Armed Forces under certain circumstances, cannot operate for a “commercial purpose” ^[9] and can only carry crewmembers or qualified non-crewmembers.^[10] The public aircraft statute allows “qualified non-crewmembers” to be on board a public aircraft as long as their presence is “required to perform, or is associated with the performance of, a governmental function.” The definition of “governmental function” includes “firefighting.” As a result, firefighters may be on board public aircraft.^[11]

In summary, under current statutes and regulations, to utilize restricted category aircraft to transport firefighters ( printed page 58031) to and from the site of a wildfire to perform ground wildfire suppression, those operations must be conducted as PAO, provided the aircraft is not owned by a civilian operator.^[12] Meanwhile, if a standard category aircraft is used to provide that transportation, then the operation could be conducted as a PAO or as a CAO.

C. Section 328 of the FAA Reauthorization Act of 2024

Prior to the FAA Reauthorization Act of 2024, civilian contractors conducting PAO on behalf of government entities and using restricted category aircraft were not subject to FAA's civil regulations. Section 328 of the FAA Reauthorization Act of 2024 now requires FAA's operating and maintenance regulations to apply to civilian operators that own restricted category aircraft even if they are operating on behalf of a government entity as a PAO. Specifically, section 328 states, “Notwithstanding any other provision of law, the Administrator shall have sole regulatory and oversight jurisdiction over the maintenance and operations of aircraft owned by civilian operators and type-certificated in the restricted category under section 21.25 of title 14, Code of Federal Regulations.” ^[13] As the language states, this provision only applies to restricted category aircraft owned by civilian operators. Section 328 does not impact standard category aircraft owned by civilian operators when conducting PAO, who still are not subject to FAA's civil operating and maintenance regulations.

As a result of this new requirement, there is a subset of PAO that are subject to some of FAA's civil regulations. The new section 328 requirements now prohibit civilian operators that own restricted category aircraft from transporting firefighters because they would not be able to comply with § 91.313, the civil operating rule pertaining to restricted category aircraft.^[14] This, in turn, could limit the total number of aircraft available to transport firefighters under PAO. Rulemaking directed by section 360 could help mitigate the effects of these requirements by enabling restricted category civil aircraft to transport firefighters to and from the site of wildfires for ground-based wildfire suppression.

D. Civil Aircraft Operations

Civil aircraft operations are another pathway by which aerial firefighting operations can be conducted in restricted category civil aircraft provided the operation qualifies as a special purpose operation. Typically, aircraft used to conduct firefighting operations through the aerial dispensing of liquids have been issued a restricted category airworthiness certificate for that special purpose operation.

The requirements for issuing type certificates for restricted category aircraft are codified in 14 CFR 21.25. Section 21.25(b) lists seven special purpose operations including agricultural, forest and wildlife conservation, aerial surveying, patrolling, weather control, aerial advertising, and any other operation specified by FAA. FAA Order 8110.56B further clarifies under the special purpose of Forest and Wildlife Conservation, the term “aerial dispensing of liquids” is included in the special purpose operation for firefighting aircraft. This designation does not include transporting firefighters to or from the site of a wildfire to perform ground wildfire suppression.

When conducting a CAO in a restricted category civil aircraft, an operator must comply with the requirements of § 91.313 (“Restricted category civil aircraft: Operating limitations”). Section 91.313(a) establishes that no person may operate a restricted category civil aircraft for other than the special purpose for which it is certificated, or in an operation other than one necessary to accomplish the work activity directly associated with that special purpose. Section 91.313 contains exceptions to the requirements of § 91.313(a); however, those exceptions do not allow the transportation of firefighters to and from a site to perform ground wildfire suppression. Section 91.313(c) establishes that a restricted category civil aircraft cannot carry “persons or property for compensation or hire.” However, paragraph (c) allows an exception for those aircraft to carry persons or material necessary to accomplish a special purpose operation and states those operations are not considered to be the carriage of persons or property for compensation or hire. Finally, § 91.313(d) contains a listing of the persons who may be carried on a restricted category civil aircraft; these are: a flight crew member, a flight crew member trainee, a person who performs an essential function in connection with the special purpose operation for which the aircraft is certificated, a person who is necessary to accomplish the work activity associated with that special purpose, or a person who is necessary to accomplish an operation outlined in § 91.313(h).

Under the current regulatory requirements, conducting a CAO using restricted category civil aircraft for the purpose of transporting firefighters to and from the site of a wildfire to perform ground wildfire suppression is not permitted. The restrictions in § 91.313 preventing that transportation are:

1. That transportation is other than the special purpose of the “aerial dispensing of liquids” for which the restricted category civil aircraft is certificated (§ 91.313(a)(1));

2. That transportation is an operation other than one necessary to accomplish the “aerial dispensing of liquids” (§ 91.313(a)(2)); and

3. The firefighters are not performing an essential function in connection with the “aerial dispensing of liquids” nor are they necessary to accomplish the work activity directly associated with the “aerial dispensing of liquids” (§ 91.313(d)(3) & (4)).

Another consideration when conducting this type of CAO is determining the applicability of 14 CFR part 119 (“Certification: Air Carriers and Commercial Operators”), which outlines the certification requirements for operators intending to operate civil aircraft as, among other things, an air carrier or commercial operator in air commerce. Section 119.1(e) contains a listing of operations for which part 119 does not apply, and “firefighting” is listed in § 119.1(e)(4)(iv) under “Aerial work operations.” The transportation of firefighters to and from the site of a wildfire to perform ground wildfire suppression is not considered an “aerial work operation;” ^[15] therefore, those operations would not be excepted from the part 119 certification requirements and would be required to operate under part 135 (“Operating Requirements: ( printed page 58032) Commuter and On Demand Operations and Rules Governing Persons On Board Such Aircraft”). However, as discussed below, restricted category aircraft cannot operate under part 135, which governs the operations of commercial commuter and on-demand operations.

Section 135.25 provides the requirements for aircraft used in part 135 operations, and § 135.25(a)(1) requires those aircraft to be “. . . registered as a civil aircraft of the United States and carries an appropriate and current airworthiness certificate. . . .” A restricted category airworthiness certificate is not an appropriate airworthiness certificate for part 135 operations because FAA has determined those aircraft are not appropriate for transporting persons or property for compensation or hire.^[16] Therefore, to transport firefighters to and from the site of a wildfire to perform ground wildfire suppression as a CAO, the aircraft would be required to have a standard airworthiness certificate, and those operations would have to be conducted under part 135.

The restrictions imposed on restricted category aircraft, and the fact that the transportation of firefighters to perform ground wildfire suppression is not currently considered a special purpose operation under § 21.25(b), effectively prohibit the CAO transportation of firefighters in a restricted category civil aircraft to perform ground-based firefighting actions.

In a 2018 legal interpretation, FAA addressed the question of whether firefighters transported aboard restricted category civil aircraft to extinguish fires from the ground are deemed to be performing an essential in-flight function in connection with a special purpose operation and whether the transportation of firefighters falls under the § 119.1(e) exception of an “aerial work operation.” FAA determined the transportation of firefighters for ground firefighting from one location to another is not related to the special purpose operation for which the aircraft is certificated.^[17] FAA also determined under either § 91.313(d)(3) or (4), the persons aboard a restricted category aircraft must be participating in the special purpose operation, which is the aerial dispensing of liquid for firefighting, or be essential to the aerial dispensing of liquid.

In the interpretation, FAA stated with respect to § 119.1(e)(4)(iv), if firefighters are performing an aerial work operation (firefighting from the aircraft), the certification requirements of part 119 do not apply.^[18] However, transporting firefighters for ground firefighting is not an aerial work operation. FAA also noted if the aircraft operation is involved in both aerial work and transportation, the exception from part 119 certification would not apply because a dual-purpose operation of transportation and aerial work does not fall under the aerial work operation exception.^[19]

As a result of the current civil regulatory framework and the 2018 legal interpretation, revision to § 91.313 may be warranted, and FAA Order 8110.56 would be revised to add transportation of firefighters to the site of a wildfire as a special purpose operation as defined in § 21.25(b)(7). In addition, revision to the § 119.1(e) exceptions may also be warranted to except the transportation of certain firefighters from part 119 applicability.

IV. Questions Concerning Proposal Under Consideration

This ANPRM is intended to gather information from the public to help inform FAA's efforts to assess options for safely implementing the requirements of section 360 to enable the transportation of firefighters to and from the site of a wildfire on restricted category aircraft, excluding former military aircraft.

Below, FAA poses questions to the public it hopes will further inform FAA's consideration of a section 360 rulemaking. Please reference the specific question(s), or number of the question(s), to which you are responding. Please include what government entity or private organization is providing the responses and any other information that may help FAA develop an NPRM. Also include any sources for your information and any data or context that you use in developing your comment.

A. Number and Types of Aircraft and Operations Transporting Firefighters

Fighting wildfires is a topic of great interest and need throughout the United States, with the majority of firefighting actions performed by government entities, either local, State, or Federal. While the rules for flight in the national airspace system are established, the operational parameters and types of aircraft by which these entities perform firefighting actions and transport firefighters to the site of wildfires vary across the different entities. The aircraft may be owned or contracted by the government entity, and the entity may perform the actions under PAO or CAO, depending on the internal policies of the entity involved, the situation surrounding the firefighting activity, and the availability of aircraft. FAA seeks information regarding the types of standard category and restricted category aircraft currently used to transport firefighters to and from the site of a wildfire so those firefighters can perform ground wildfire suppression.

1. By enabling restricted category aircraft to provide transportation of firefighters to and from the site of a wildfire as described in section 360, please provide the expected increase in the number of firefighters that will be transported by your organization to suppress wildfires, if any.

2. Over the last five years, what was your annual average of aerial transportation flight segments transporting firefighters to and from a location to perform ground wildfire suppression actively that were conducted as PAO? How many were conducted as CAO?

A. In your answer, please include: the make and model of each aircraft used in firefighter transport; the average number of annual flight segments per aircraft and how many hours on average were spent per flight segment transporting firefighters to and from the site of wildfires; the hourly cost to operate and maintain each aircraft; and whether those aircraft were operated ^[20] using a standard airworthiness or a restricted category certificate and whether they were operated under CAO, PAO, or both. What percent of these flights would you replace a standard category aircraft with a restricted category aircraft if allowed to operate restricted category aircraft to transport firefighters? What would be the hourly cost to operate and maintain each of these restricted category aircraft?

( printed page 58033)

B. Of your flights transporting firefighters to and from the site of a wildfire to perform ground wildfire suppression over the last five years, what percentage of CAO operations out of the total number of desired CAO operations for transportation of firefighters did you have to cancel or not pursue due to the lack of available aircraft because of the restriction on using restricted category civil aircraft?

3. Are you facing difficulties in finding contractors to transport firefighters under CAO to suppress wildfires? If so, what are these difficulties?

4. What types of restricted category civil aircraft, other than surplus military aircraft, would be capable of transporting firefighters if allowed by a change in regulations as proposed in section 360?

5. A. Does your organization have policies, procedures, or contractual requirements that prevent the transportation of firefighters on restricted category aircraft, regardless of whether operating as a PAO or CAO? If so, why?

B. If FAA revises the rules to permit transportation of firefighters on restricted category aircraft, would you revise your policies and procedures to permit transportation of firefighters on restricted category aircraft? Why or why not?

B. Additional Economic Questions

Wildfires are by their nature chaotic, unique, and unpredictable, and they can have disastrous economic impacts on the United States. Government entities and those organizations they contract with to fight wildfires expend considerable resources on the prevention and mitigation of wildfires, and firefighting efforts save untold billions in potential damages as well as saving lives. FAA seeks information related to the economic impact a rulemaking based on section 360 would have on your organization, the financial constraints and realities of operating restricted category aircraft for transporting firefighters, and information related to the types and costs of the aircraft being used.

1. If the 14 CFR part 135 aircraft maintenance, inspections, and pilot training requirements are applied to restricted category aircraft that transport firefighters, please provide the estimated costs to meet these part 135 requirements by aircraft make and model. If these requirements were applied to restricted category aircraft to transport firefighters, what percent of the flight segments you provide in standard category aircraft would you replace with a restricted category aircraft?

2. For operators currently providing transportation of firefighters on aircraft that are not in the restricted category, what impact would this rulemaking have on your operation?

3. As compared to current response times to get firefighters on location to perform ground wildfire suppression actively, will allowing the transport of firefighters on restricted category aircraft improve wildfire response times and if so, how much?

4. What additional quantitative or qualitative benefits or drawbacks does your organization anticipate from a rulemaking based upon the directives Congress stipulated in section 360?

V. Executive Order 14192

This rule is exempt from the requirements of Executive Order 14192 as it is a prerulemaking action.

VI. Additional Information

A. Comments Invited

The FAA invites interested persons to participate in this rulemaking by submitting written comments, data, or views. The most helpful comments explain the reason for any recommendations and include supporting data. To ensure the docket does not contain duplicate comments, commenters should submit only one time if comments are filed electronically, or commenters should send only one copy of written comments if comments are filed in writing.

The FAA will file in the docket all comments it receives, as well as a report summarizing each substantive public contact with FAA personnel concerning this ANPRM. Before acting on this rulemaking, the FAA will consider all comments it receives on or before the closing date for comments. The FAA will consider comments filed after the comment period has closed if it is possible to do so without incurring expense or delay.

Privacy: In accordance with 5 U.S.C. 553(c), FAA solicits comments from the public to inform its rulemaking process better. FAA posts these comments, without edit, including any personal information the commenter provides, to www.regulations.gov, as described in the system of records notice (DOT/ALL-14 FDMS), which can be reviewed at www.dot.gov/​privacy.

B. Confidential Business Information

Confidential Business Information (CBI) is commercial or financial information that is both customarily and actually treated as private by its owner. Under the Freedom of Information Act (FOIA) (5 U.S.C. 552), CBI is exempt from public disclosure. If your comments responsive to this ANPRM contain commercial or financial information that is customarily treated as private, that you actually treat as private, and that is relevant or responsive to this ANPRM, it is important that you clearly designate the submitted comments as CBI. Please mark each page of your submission containing CBI as “PROPIN.” The FAA will treat such marked submissions as confidential under the FOIA, and they will not be placed in the public docket of this ANPRM. Submissions containing CBI should be sent to the person in the FOR FURTHER INFORMATION CONTACT section of this document. Any commentary that the FAA receives which is not specifically designated as CBI will be placed in the public docket for this rulemaking.

C. Electronic Access and Filing

A copy of this ANPRM, all comments received, any NPRM and final rule, and all background material may be viewed online at www.regulations.gov using the docket number listed above. Electronic retrieval help and guidelines are available on the website. It is available 24 hours each day, 365 days each year. An electronic copy of this document may also be downloaded from the Office of the Federal Register's website at www.federalregister.gov and the Government Publishing Office's website at www.govinfo.gov. A copy may also be found at the FAA's Regulations and Policies website at www.faa.gov/​regulations_​policies.

Copies may also be obtained by sending a request to the Federal Aviation Administration, Office of Rulemaking, ARM-1, 800 Independence Avenue SW, Washington, DC 20591, or by calling (202) 267-9677. Commenters must identify the docket or notice number of this rulemaking.

All documents the FAA considered in developing this ANPRM, including economic analyses and technical reports, may be accessed in the electronic docket for this rulemaking.

D. Small Business Regulatory Enforcement Fairness Act

The Small Business Regulatory Enforcement Fairness Act (SBREFA) of 1996 requires the FAA to comply with small entity requests for information or advice about compliance with statutes and regulations within its jurisdiction. A small entity with questions regarding this document may contact its local FAA official or the person listed under ( printed page 58034) the FOR FURTHER INFORMATION CONTACT heading at the beginning of the preamble. To find out more about SBREFA on the internet, visit www.faa.gov/​regulations_​policies/​rulemaking/​sbre_​act/​.

91 FR 58029