Rule2023-03597
Airport Safety Management System
Primary source
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Published
February 23, 2023
Effective
April 24, 2023
Issuing agencies
Transportation DepartmentFederal Aviation Administration
Abstract
This final rule requires certain airport certificate holders to develop, implement, maintain, and adhere to an airport safety management system (SMS). Certificated airports that qualify under one or more of the following triggering criteria (triggers) are required to develop a SMS under this final rule: are classified as large, medium, or small hubs based on passenger data extracted from the FAA Air Carrier Activity Information System; have a 3-year rolling average of 100,000 or more total annual operations, meaning the sum of all arrivals and departures; or serve any international operation other than general aviation. This rule would expand the safety benefits of SMS to certain certificated airports and further the FAA's aviation- wide approach to SMS implementation in order to address safety at an organizational level.
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[Federal Register Volume 88, Number 36 (Thursday, February 23, 2023)]
[Rules and Regulations]
[Pages 11642-11674]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2023-03597]
[[Page 11641]]
Vol. 88
Thursday,
No. 36
February 23, 2023
Part V
Department of Transportation
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Federal Aviation Administration
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14 CFR Part 139
Airport Safety Management System; Final Rule
Federal Register / Vol. 88, No. 36 / Thursday, February 23, 2023 /
Rules and Regulations
[[Page 11642]]
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DEPARTMENT OF TRANSPORTATION
Federal Aviation Administration
14 CFR Part 139
[Docket No.: FAA-2010-0997; Amdt. No. 139-28]
RIN 2120-AJ38
Airport Safety Management System
AGENCY: Federal Aviation Administration (FAA), DOT.
ACTION: Final rule.
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SUMMARY: This final rule requires certain airport certificate holders
to develop, implement, maintain, and adhere to an airport safety
management system (SMS). Certificated airports that qualify under one
or more of the following triggering criteria (triggers) are required to
develop a SMS under this final rule: are classified as large, medium,
or small hubs based on passenger data extracted from the FAA Air
Carrier Activity Information System; have a 3-year rolling average of
100,000 or more total annual operations, meaning the sum of all
arrivals and departures; or serve any international operation other
than general aviation. This rule would expand the safety benefits of
SMS to certain certificated airports and further the FAA's aviation-
wide approach to SMS implementation in order to address safety at an
organizational level.
DATES: This rule is effective April 24, 2023.
ADDRESSES: For information on where to obtain copies of rulemaking
documents and other information related to this final rule, see ``How
to Obtain Additional Information'' in SECTION VI of this document.
FOR FURTHER INFORMATION CONTACT: For technical questions about this
action, contact James Schroeder, Airport Safety and Operations
Division, AAS-300, Office of Airport Safety and Standards, Federal
Aviation Administration, 800 Independence Avenue SW, Washington, DC
20591; telephone (202) 267-4974; email <a href="/cdn-cgi/l/email-protection#6a000b070f194419090218050f0e0f182a0c0b0b440d051c"><span class="__cf_email__" data-cfemail="157f747870663b66767d677a70717067557374743b727a63">[email protected]</span></a>.
SUPPLEMENTARY INFORMATION:
Table of Contents
I. Executive Summary
II. Background
III. Discussion of Public Comments and Final Rule
A. Applicability
1. General Applicability
2. Triggers
i. Hub Trigger
ii. Operations Trigger
iii. International Trigger
3. Authority To Implement Triggers
4. Annual Review of Applicability
B. Implementation
1. Phased Implementation
2. Staggered Implementation
3. FAA Review of Documents
4. Timeline for Document Submission and Full Implementation
5. Timeline for New Airports Qualifying After the Effective Date
of This Final Rule, or Due to Changes in Status
C. Non-Movement Area
1. Regulatory Authority in the Non-Movement Area
2. Inclusion of Fuel Farms, Baggage-Makeup, and Military Areas
3. Inconsistency With ICAO Standard
4. Air Carrier Operations in Non-Movement Areas
D. Data Protection
1. State-Level Fix
2. Federal-Level Protection
3. Creation of a National Data Repository
4. De-Identified Data
E. Safety Reporting and Interoperability
1. Change in Terminology
2. Data Sharing and Reporting Plan
3. Crewmembers Accessing Non-Movement Areas
F. Training and Orientation
1. Identification of Roles, Responsibilities, and Minimum
Training Elements
2. Training Estimates Used in Regulatory Evaluation calculations
3. Safety Awareness Orientation
4. Development of Training Materials
5. Clarification of ``Comprehensive SMS Training''
6. Clarification of ``Access''
G. Accountable Executive
1. Amendment or Elimination of the Accountable Executive
Requirement
2. Delegation
3. Personal Liability and Oversight
H. Definitions
1. ``Hazard'' Definition
2. ``Non-Movement Area'' Definition
3. Harmonization of ``Safety Policy,'' ``Safety Risk
Management,'' ``Safety Assurance,'' and ``Safety Promotion''
Definitions
I. Miscellaneous Topics
1. FAA's Rulemaking Authority
2. Applicability to Non-Certificated Airports
3. FAA Oversight
4. Safety Risk Management
5. Record Retention
6. SMS Manual Updates
7. Guidance and Work Groups
IV. Regulatory Notices and Analyses
V. Executive Order Determinations
VI. How To Obtain Additional Information
List of Abbreviations and Acronyms Frequently Used in This Document
AC Advisory Circular
ACAIS Air Carrier Activity Information System
ACM Airport Certification Manual
AOC Airport operating certificate
ARP FAA Office of Airports
ATO FAA Air Traffic Organization
AVS FAA Aviation Safety Organization
CFR Code of Federal Regulations
CBP Customs and Border Protection
DSR Plan Data Sharing and Reporting Plan
E.O. Executive Order
FAA Federal Aviation Administration
FOIA Freedom of Information Act
ICAO International Civil Aviation Organization
NPIAS National Plan of Integrated Airport Systems
NPRM Notice of Proposed Rulemaking
NTSB National Transportation Safety Board
OMB Office of Management and Budget
OpsNet FAA Operations Network
SBREFA Small Business Regulatory Enforcement Fairness Act of 1996
SMS Safety Management System
SNPRM Supplemental Notice of Proposed Rulemaking
SRM Safety Risk Management
SSI Sensitive Security Information
I. Executive Summary
A. Purpose of the Regulatory Action
SMS has generated wide support in the aviation community as an
effective approach that can deliver real safety and financial
benefits.\1\ SMS integrates modern safety concepts into repeatable,
proactive processes in a single system, emphasizing safety management
as a fundamental business process to be considered in the same manner
as other aspects of business management. The development and
implementation of SMS improves safety at the organizational level and
is the next step in the continuing evolution of aviation safety.
Therefore, the FAA is pursuing an aviation-wide approach that would
require the implementation of SMS by those organizations in the best
position to prevent future accidents. As part of that process, the FAA
is expanding SMS's benefits to certain certificated airports by
requiring them to proactively identify and mitigate safety hazards,
thereby reducing the possibility or recurrence of incidents or
accidents in air transportation. The purpose of this final rule is to
require certain Title 14 Code of Federal Regulations (CFR) part 139 \2\
certificate holders to develop,
[[Page 11643]]
implement, maintain, and adhere to an airport safety management system
(SMS).
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\1\ See, e.g., National Transportation Safety Board, NTSB Calls
for Enhanced Safety Standards in Some Revenue Passenger-Carrying
General Aviation Operations (Mar. 23, 2021), <a href="https://www.ntsb.gov/news/press-releases/Pages/NR20210323.aspx">https://www.ntsb.gov/news/press-releases/Pages/NR20210323.aspx</a>; Transportation Research
Board, Airport Cooperative Research Program (ACRP) Synthesis 37:
Lessons Learned from Airport Safety Management Systems Pilot Studies
at 46 (2012) (explaining that airports that participated in the SMS
program reported increased safety awareness and improved
collaboration).
\2\ Part 139 requires airports serving scheduled air carrier
aircraft with more than 9 seats or unscheduled air carrier aircraft
with more than 30 seats to hold an Airport Operating Certificate
(AOC). Under part 139, a certificate holder must develop and
maintain an Airport Certification Manual (ACM). The ACM contains the
processes and procedures the airport uses to comply with part 139
requirements, and the FAA approves the ACM and updates to it.
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A SMS is a formal means for organizations to identify and manage
safety risks in their operations. It includes systematic procedures,
practices, and policies for the management of safety risk. SMS enforces
the concept that safety should be managed with as much emphasis,
commitment, and focus as any other critical area of an organization. It
prompts organizations to develop decision-making processes and
procedures and use effective safety risk controls to proactively
identify and mitigate or address any detected noncompliant or unsafe
conditions in their operations. As discussed in the FAA Airport SMS
Pilot Study report,\3\ airports that voluntarily implemented SMS have
reported better efficiency in identifying and mitigating hazards in
daily activities such as pedestrian safety on ramps and operations with
ground support equipment.\4\ These airports also used SMS processes for
significant events, such as construction safety and phasing planning,
to proactively identify and mitigate hazards before the start of the
project. This proactive approach, along with the communication of
safety issues, provides a robust mechanism for airports to improve
safety. The FAA has not formally tracked the number of airports that
have implemented SMS since it is not yet a required element under part
139.
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\3\ Federal Aviation Administration, Airport Safety Management
Systems (SMS) Pilot Studies, <a href="https://www.faa.gov/sites/faa.gov/files/airports/airport_safety/safety_management_systems/external/smsPilotTechReportMay2011.pdf">https://www.faa.gov/sites/faa.gov/files/airports/airport_safety/safety_management_systems/external/smsPilotTechReportMay2011.pdf</a> (May 2011).
\4\ FAA has not evaluated an airport's safety record prior to
participating in SMS under the pilot program. In general, however,
the FAA recognizes that airports participating in the pilot studies
were proactive about the safety of their operations.
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The purpose of a SMS is to reduce incidents, accidents, and
fatalities in the airfield operations environment. A specific example
cited in the RIA was the FOD damage to 14 aircraft in 2007 (NTSB
Accident No: DEN07IA069). The advanced communication procedures in a
SMS could have expedited the reporting, assessment and mitigation of
the FOD hazard, thus limiting the likelihood and severity of this
hazard. Expanding SMS to certain certificated airports is the best
strategy to continue to reduce incidents and accidents, and improve
safety in aviation. ICAO, other Civil Aviation Authorities, industry
advisory groups, and the NTSB all support the use of SMS to improve
safety. In the U.S., safety management systems have been implemented by
part 121 operators and the FAA has voluntary programs designed to
expand the use of SMS throughout the aviation system. The FAA has even
implemented SMS within many of its organizations. Further, expansion of
SMS would also align the U.S. with current ICAO Standards and
Recommended Practices.
This final rule requires airport certificate holders that qualify
under one or more of the following triggering criteria (triggers) to
develop a SMS: airports: (a) classified as large, medium, or small
hubs, based on passenger data extracted from the FAA Air Carrier
Activity Information System; (b) that have a 3-year rolling average of
100,000 or more total annual operations, meaning the sum of all
arrivals and departures; \5\ or (c) that serve any international
operation other than general aviation. The FAA applied a primarily
risk-based approach to the final rule's applicability. The criteria are
designed to maximize SMS's safety benefits to stakeholders in the least
burdensome manner. Instead of requiring SMS at all certificated
airports, only certificated airports with the highest passenger
enplanements, the largest total operations, and those hosting
international air traffic must have a SMS under this rule. This final
rule applies to approximately 265 certificated airports. These airports
cover over 90 percent of all U.S. passenger enplanements and include
the facilities with the largest number of commercial air transportation
operations. This allows safety benefits to flow to airports with the
majority of aircraft operations in the United States in addition to
airports with international passenger operations to ensure conformity
with international standards and recommended practices with the least
regulatory burden. This rule does not require SMS implementation at
small airports with fewer resources where creating a SMS may be a
larger proportional burden and may not be cost beneficial.
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\5\ For the purposes of this trigger, the FAA will use the
following sources of data to determine number of operations: (a)
traffic counts reported by the Air Traffic Control Tower through FAA
Operations Network (OpsNet), for airports with FAA or contract
towers; (b) FAA Form 5010-1 data for non-towered airports; or (c)
other FAA-validated counting systems. Historical OpsNet data is
publicly available through <a href="http://FAA.gov">FAA.gov</a>.
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This final rule includes an exception to the applicability of the
SMS requirement. If a certificate holder qualifies exclusively under
the international services trigger, then it may file a waiver request
to seek relief from the regulatory requirement to implement SMS. To do
so, it must certify that it does not host any operation by any tenant
\6\ that is required to implement SMS under the applicable laws or
regulations of its country of origin (i.e., the jurisdiction that
issued the tenant's air carrier certificate, air operator certificate,
or equivalent) or any other governing jurisdiction. For example, if
international services at an airport are solely provided for operators
engaged in general aviation operations, then--absent another trigger--
the FAA will not require the airport to implement SMS. By linking the
international trigger for part 139 airports to the presence of
international tenants with SMS requirements, the FAA supports a
holistic approach that encourages the sharing of data and proactive
risk management inherent to SMS. Without this linkage, neither SMS
reaches its full potential safety benefit. However, if an air carrier
tenant commences international service to or from such airport, and the
country of origin of such air carrier tenant requires that it adhere to
a SMS, then the exception does not apply and the airport must implement
SMS.
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\6\ As discussed later in this document, tenant refers to any
person or entity occupying space or property under a lease or other
agreement (such as an air carrier or maintenance repair and overhaul
company) that does business at the airport.
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In the interest of safety, this final rule requires the
implementation of SMS in both the movement and non-movement areas \7\
of qualifying airports. This rule allows airports to enter into data
sharing and reporting arrangements with certain air carrier tenants.
Such arrangements allow tenants to share with part 139 certificate
holders any hazard report submitted though the tenants' confidential
employee reporting systems. This reduces the burden of having to report
hazards under two different reporting systems and fosters cooperation
and increased communication of safety issues among interested parties,
while avoiding gaps in SMS coverage. Separately, this final rule adds
an authority citation inadvertently omitted from a previous final rule
and amends Sec. 139.101 by removing paragraph (c), which no longer
applies.
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\7\ ``Movement area'' is defined as the runways, taxiways, and
other areas of an airport that are used for taxiing, takeoff, and
landing of aircraft, exclusive of loading ramps and aircraft parking
areas, and that are under the control of an air traffic control
tower. ``Non-movement Area'' is defined as taxiways, aprons, and
other areas not under the control of air traffic or at airports
without an operating airport traffic control tower.
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Airport SMS will help FAA develop its oversight processes so that
FAA
[[Page 11644]]
targets its involvement on the areas of highest safety risk. For
airports with a fully implemented SMS and that have a consistent
history of compliance with the requirements of part 139, the FAA will
transition to system-based inspections, thereby allowing inspectors to
focus on areas of greater risk and the FAA to modify the duration of
time between inspections for those airports. In addition to focusing
FAA's resources to best address safety needs, the FAA anticipates this
approach will create government cost savings from reduced inspector
time and travel costs.
B. Summary of the Major Provisions of the Regulatory Action
In its most general form, SMS is a set of decision-making tools
that a certificate holder uses to plan, organize, direct, and control
its everyday activities in a manner that enhances safety. An airport
SMS must include, at a minimum, four components: (a) safety policy, (b)
safety risk management, (c) safety assurance, and (d) safety promotion.
Certificate holders must identify their plans for developing and
implementing SMS through an FAA-approved Implementation Plan (see Sec.
139.403). Pursuant to Sec. 139.401(f), certificate holders may choose
to either document their airport SMS in a separate SMS Manual or in
their FAA-approved ACM (see also Sec. Sec. 139.201-139.203).
The submission of SMS Implementation Plans is staggered based on
which trigger prompts certificate holders to comply with this final
rule. Airports qualifying under the hub trigger must submit their
Implementation Plans first, within 12 months of the effective date of
this rule. Certificate holders qualifying under the annual operations
trigger must submit Implementation Plans within 18 months, and airports
qualifying under the international trigger must submit their
Implementation Plans within 24 months.
All certificate holders subject to this final rule must submit
their SMS Manual and/or revised ACM to the FAA within the 12 months
immediately following the FAA's approval of the Implementation Plan.
Certificate holders have 36 months following approval of the
Implementation Plan to fully implement their SMS.
Table 1 provides a brief summary of the major provisions of this
final rule and changes from the SNPRM.
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\8\ The FAA anticipates that some airports will provide routine
updates to their accountable executive, such as through a
continuously updated dashboard.
Table 1--Summary of Major Provisions
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Proposed
Issue requirement (from Adopted requirement
the SNPRM)
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Applicability of SMS Limited to Limited to
requirements. certificate certificate holders:
holders: (a) Classified as
(a) Classified as large, medium, or
large, medium, small hub; or
or small hub; or. (b) Having an average
(b) Having more of 100,000 or more
than 100,000 total annual
total annual operations (the sum
operations; or. of all arrivals and
(c) Classified as departures) over the
a port of entry, previous three
designated calendar years; or
international (c) Classified as a
airport, landing port of entry,
rights airport, designated
or user fee international
airport.. airport, landing
rights airport, or
user fee airport.
Sec. 139.401(a).
Waiver for International NONE............. Allow a certificate
Trigger. holder that
qualifies
exclusively under
the international
trigger to obtain a
waiver from
complying with the
SMS requirements if
it has no tenants
that are required to
comply with SMS
requirements of any
jurisdiction.
Sec. 139.401(d).
Scope......................... SAME AS ADOPTED.. Encompass aircraft
operations in the
movement and non-
movement areas (and
other airport
operations addressed
in part 139).
Sec. 139.401(b).
Scale......................... SAME AS ADOPTED.. Correspond in size,
nature, and
complexity to the
operations,
activities, and
risks associated
with the airport's
operations.
Sec. 139.401(c).
Implementation Plan........... SAME AS ADOPTED.. Detail how the
airport will meet
the requirements of
this final rule;
include a schedule
for implementing the
SMS components;
describe any
existing programs or
policies the airport
will use to meet the
SMS requirements.
Sec. 139.403(b).
Documenting the SMS SAME AS ADOPTED.. Include methods of
requirements. compliance contained
within the ACM or a
separate SMS Manual
with incorporation
by reference in the
ACM.
Sec. 139.401(f).
Document Submission and Submit Submit Implementation
Implementation Deadlines. Implementation Plan on or before:
Plan on or <bullet> 12 months
before 12 months. for hub triggers;
Submit SMS Manual <bullet> 18 months
and/or ACM for operations
update on or triggers; and
before 24 months. <bullet> 24 months
Fully implement for international
the SMS on or triggers.
before 24 months. Sec. 139.403(a).
Submit SMS Manual and/
or ACM update on or
before 12 months
after FAA-approval
of the
Implementation Plan.
Sec. 139.403(c).
Fully implement the
SMS no later than 36
months after FAA-
approval of the
Implementation Plan.
Sec. 139.403(d).
Accountable executive......... SAME AS ADOPTED.. Identify the
accountable
executive; report
pertinent safety
information and data
on a regular basis
to the accountable
executive.\8\
Sec. 139.402(a)(1);
Sec.
139.402(c)(3).
[[Page 11645]]
Safety Policy Statement....... SAME AS ADOPTED.. Establish and
maintain a safety
policy statement
signed by the
accountable
executive.
Sec. 139.402(a)(2).
Safety Objectives............. SAME AS ADOPTED.. Establish and
maintain safety
objectives; define
methods, processes,
and organizational
structure necessary
to meet those safety
objectives; monitor
safety performance.
Sec. 139.402(a)(6)
& (7); Sec.
139.402(c)(1).
Safety Risk Management........ SAME AS ADOPTED.. Establish a system to
identify operational
safety issues and a
process to analyze
hazards and their
risks.
Sec. 139.402(b).
Safety Reporting System....... SAME AS ADOPTED.. Establish and
maintain a reporting
system that provides
for reporter
confidentiality.
Sec. 139.402(c)(2).
Data Sharing and Reporting NONE............. Provides option to
Plan. develop data sharing
and reporting plan
with tenant(s)
required to maintain
a SMS subject to
requirements of 14
CFR part 5. When
such a plan exists,
relieves airport
from providing
safety awareness
orientation to
applicable tenants
or their employees.
Sec. 139.401(e).
Training and Orientation...... SAME AS ADOPTED.. Provide all persons
authorized access to
movement and non-
movement areas
safety awareness
orientation; provide
all employees with
responsibilities
under the SMS
training appropriate
to their roles.
Sec. 139.402(d)(1)
& (3).
Safety Communications......... SAME AS ADOPTED.. Develop and maintain
formal means for
communicating
important safety
information.
Sec. 139.402(d)(5).
Record Keeping................ SAME AS ADOPTED.. Retain:
<bullet> SMS training
records and
orientation
materials for 24
consecutive calendar
months;
<bullet> SRM
documentation for
the longer of 36
consecutive calendar
months after the
risk analysis has
been completed or 12
consecutive calendar
months after
mitigations
completed; and
<bullet> Safety
communications for
12 consecutive
calendar months.
Sec. 139.301(b)(1)
& (9) & (10).
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C. Summary of Costs and Benefits
The goal of this rule is to improve the safety of the airfield
environment (including movement and non-movement areas) by providing an
airport with decision-making tools to plan, organize, direct, and
control its everyday activities in a manner that enhances safety. The
FAA envisions airports being able to use all of the components of a SMS
to enhance their ability to identify safety issues and spot trends
before they result in a near-miss incident or accident. While the FAA's
use of prescriptive regulations and technical operating standards has
been effective, such regulations may leave gaps best addressed through
performance-based management practices. For example, pilots and
controllers may be required to report incidents (such as bird-strikes
or runway incursions) under their respective SMS. However, they may not
be required to notify the airport of the incident. Because the airport
operator best understands its own operating environment, it is in the
best position to address many of its own safety issues providing it has
sufficient data to address the hazard. A SMS may provide an airport
with the capacity to anticipate and address safety issues before they
lead to an incident or accident. Table 2 shows quantified present value
and annualized benefits and costs over 10 years. The FAA anticipates
additional benefits at airports with an implemented Airport SMS in the
form of cost savings from reductions in the frequency and breadth of
the traditional airport inspection and inspection cycle. Table 2 also
includes the FAA's estimated cost savings of changing the traditional
inspection cycle at airports with a fully implemented SMS.
Table 2--Comparison of Costs and Benefits Over 10 Years
[Millions of 2020 dollars]
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Present value Annualized Present value Annualized
(3%) (3%) (7%) (7%)
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Benefits........................................ $199.2 $23.4 $144.1 $20.5
Costs........................................... 179.8 21.1 139.0 19.8
Cost Savings.................................... 3.1 0.4 2.2 0.3
Net Benefits (includes mitigation benefits, but 22.5 2.6 7.3 1.0
excludes mitigation costs).....................
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Table notes: The sum of the individual items may not equal totals due to rounding. Estimates are provided at
three and seven percent discount rates per Office of Management and Budget (OMB) guidance.
[[Page 11646]]
II. Background
A. Authority for This Rulemaking
The FAA's authority to issue rules on aviation safety is found in
Title 49 of the United States Code. This rulemaking is promulgated
under the authority described in: (a) 49 U.S.C. 44702, which authorizes
the Administrator to issue airport operating certificates; (b) 49
U.S.C. 44706, which authorizes the Administrator to (i) issue an AOC to
a person desiring to operate an airport if the person properly and
adequately is equipped and able to operate safely; and (ii) include in
such AOC all necessary terms to ensure safety in air transportation;
and (c) 49 U.S.C. 44701, which requires the Administrator to--among
other things--promote safety, prescribe minimum safety standards, and
carry out functions that best tend to reduce or eliminate the
possibility or recurrence of accidents in air transportation. This
regulation is within the scope of the aforementioned authorities
because it requires certain certificated airports to develop and
maintain a SMS to improve the safety of operations conducted at such
airports. The development and implementation of SMS ensures safety in
air transportation by helping airports proactively identify and
mitigate safety hazards, thereby reducing the possibility or recurrence
of accidents in air transportation.
B. Statement of the Problem
The FAA has determined that there are unmitigated risks and safety
gaps in the airport environment necessitating a systems approach to
improve safety at part 139 certificated airports. The goal of this rule
is to improve the safety of the airfield environment (including
movement and non-movement areas). The FAA intends to evolve the current
part 139 compliance program into a proactive, and ultimately predictive
approach using the structured discipline of SMS principles.
The increasing demands on the U.S. air transportation system,
including additional air traffic and surface operations, and airport
construction, present a potential increased presence of operational
hazards in the airfield environment. However, many accidents and
incidents that may be mitigated under SMS may not be shared outside the
organization, especially in regards to the non-movement area, thus
limiting FAA's insight into the breadth or scale of near-miss and other
types of potentially hazardous incidents. While the FAA's use of
prescriptive regulations and technical operating standards has been
effective, such regulations may leave gaps best addressed through
improved management practices. As the certificate holder best
understands its own operating environment, it is in the best position
to address many of its own safety issues. A SMS may provide an airport
with the capacity to anticipate and address safety issues before they
lead to an incident or accident.
C. Related Actions
In 2015, the FAA issued a final rule requiring 14 CFR part 119
certificate holders authorized to conduct operations under 14 CFR part
121 to develop and implement a SMS (see 14 CFR part 5, Safety
Management Systems).\9\ The part 5 rule established a general framework
and minimum requirements for designing and implementing SMS and allowed
air carriers to adapt the SMS to ensure it appropriately dealt with the
size, scope, and complexity of their part 121 operations. Additionally,
under FAA Order 8000.369, the FAA uses SMS internally in offices such
as Airports, Air Traffic Organization, Aviation Safety, Security and
Hazardous Materials, Next Generation Air Transportation, and Commercial
Space Transportation.
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\9\ Part 119 refers to the Certification of Air Carriers and
Commercial Operators. Part 121 refers to Operating Requirements for
Domestic, Flag, and Supplemental operations. Operations that occur
under part 121 with a part 119 certificate are scheduled commercial
air carrier operations. On January 8, 2015, the FAA published the
Safety Management Systems for Domestic, Flag, and Supplemental
Operations Certificate Holders final rule requiring operators
authorized to conduct operations under part 121 to develop and
implement a SMS. The rule added a new part 5 to Title 14 of the CFR,
creating the set of requirements for SMS that a part 121 certificate
holder must meet. The rule also modified part 119 to specify
applicability and implementation of the new SMS framework. Part 119
refers to the certification of part 121 air carriers and commercial
operators. Part 121 air carriers are regularly scheduled air
carriers and are generally large, U.S.-based airlines, regional air
carriers, and all cargo operators.
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As of the effective date of this final rule, part 5 applies to part
119 certificate holders authorized to conduct operations in accordance
with part 121. The FAA acknowledges, however, that the applicability of
part 5 may be expanded in the future, which could impact this final
rule by allowing greater coordination between part 139 certificate
holders and tenants through increased use of data sharing and reporting
plans (as discussed later).
This final rule targets part 139 certificated airport operators. It
follows a similar framework and harmonizes definitions and requirements
with the SMS requirements established under part 5 SMS, when and if
appropriate. Nonetheless, this final rule recognizes that there might
be differences in SMS requirements depending on the scope and
complexity of the operations and types of regulated parties subject to
14 CFR. For example, the FAA recognizes that an airport operation is
inherently different from the operation of an air carrier and that the
vast majority of part 139 certificate holders are public entities
(owned and/or operated by a State or local government or a department,
agency, special purpose district, political subdivision, or other
instrumentality of a State or local government) rather than private
entities like those operating as part 121 air carriers. The revised
definition proposed in the SNPRM, and adopted in this final rule of an
accountable executive eliminates the substantive differences between
the part 121 and part 139 definitions, and clarifies that the
accountable executive should not be personally liable to the FAA
through certificate action or civil penalty. Thus, in the interest of
safety, harmonization is not feasible in all instances and differences
in the SMS framework, definitions, and requirements are warranted to
best deal with the types and varying degrees of operation of the part
139 certificate holders subject to SMS.
This final rule imposes a SMS requirement on certain airports
certificated under part 139. It does not impose any additional SMS
requirement on part 119 certificate holders, nor does it expand,
revise, or amend the provisions, requirements, or responsibilities
established in part 5. A Part 139 airport may choose to update its
contractual agreements with applicable tenants. However, in most cases,
airport operators have additional means to direct critical safety
actions through other controlling documents including airport rules and
regulations or minimum standards. Usually, contractual agreements with
tenants point to, or incorporate by reference, those other documents to
allow for more timely implementation of procedures and actions without
the need for changes to the agreement. While the final rule does not
impose additional SMS requirements on tenants, it is plausible that to
achieve its own SMS requirements under part 139, an airport will use
these controlling documents to extend certain SMS requirements onto
part 119 certificate holders or other tenants.
For the purposes of this final rule, the terms ``certificate
holder'' (when used without part 139 before) and ``operator'' refer to
any entity holding an AOC under part 139. The term ``tenant'' refers
[[Page 11647]]
to any person or entity occupying space or property under a lease or
other agreement (such as an air carrier or maintenance repair and
overhaul company) that does business at the airport.
D. National Transportation Safety Board (NTSB) Recommendations
The NTSB has recommended SMS as a means to prevent future accidents
and improve safety in air transportation. The NTSB has cited
organizational factors contributing to aviation accidents and has
recommended SMS for several sectors of the aviation industry, including
aircraft operators and aerodromes (airports). The FAA agrees with the
NTSB, concluding the organizational factors and benefits of SMS apply
across the aviation industry, including airports.
NTSB submitted comments to the SNPRM concurring with the FAA's
``proposal that implementation of SMS at airports is warranted and that
SMS should apply to the entire airfield environment, including non-
movement areas.'' \10\ NTSB approved of the FAA's proposal to include
non-movement areas by stating: ``[they] have investigated accidents
that clearly demonstrate that the potential for significant events is
not limited to only the movement areas.''
---------------------------------------------------------------------------
\10\ National Transportation Safety Board response to SNPRM,
September 6th, 2016, Docket Number FAA-2010-0997-0179, Christopher
A. Hart, Chairman, page 2.
---------------------------------------------------------------------------
E. International Movement Toward SMS
ICAO's Annex 19--Safety Management document establishes a framework
for member States to develop and implement SMS requirements. State
Safety Programs, as implemented by member States, require SMS for the
management of safety risk. Many member States, including the U.S.,
started developing and implementing in-country SMS requirements after
Annex 19 became applicable in November 2013 (amended Annex 19
applicable November 2019). ICAO requires SMS requirements for
international commercial air transportation, international general
aviation, design and manufacturing, maintenance, air traffic services,
training organizations, and certified aerodromes. It is FAA policy to
comply with ICAO standards to the maximum extent practicable. This rule
would further align U.S. safety management system requirements for
airports with international standards, which are recognized and
followed by many international product and service providers also
complying with ICAO Standards and Recommended Practices.
F. Summary of the NPRM and SNPRM
On October 7, 2010, the FAA published in the Federal Register a
notice of proposed rulemaking (NPRM) titled ``Safety Management System
for Certificated Airports'' (75 FR 62008). The NPRM proposed to require
all part 139 certificate holders to establish a SMS for the entire
airfield environment, including movement and non-movement areas, to
improve safety at airports hosting air carrier operations.
While reviewing the comments received in response to the NPRM, the
FAA began to re-evaluate whether requiring a SMS at all part 139
certificated airports was the appropriate approach. As part of the re-
evaluation, the FAA assessed various combinations of criteria that
could trigger the requirement to implement the SMS rule and to maximize
safety benefits in the least burdensome manner.
On July 14, 2016, the FAA published a supplemental notice of
proposed rulemaking (SNPRM) titled ``Safety Management System for
Certificated Airports'' (81 FR 45872). The SNPRM proposed creating
triggers for SMS and proposed the FAA's preferred alternative to impose
a SMS requirement on airports that (a) are large, medium, or small
hubs; (b) serve international air traffic; or (c) have more than
100,000 total annual operations. The FAA also revised the proposed
implementation schedule to extend the implementation period from 18
months to 24 months and requires the submission of an Implementation
Plan within 12 months (instead of 6 months) from the effective date of
the rule. The SNPRM clarified the training requirements and revised
certain definitions to ensure consistency--when deemed appropriate--
among various FAA SMS initiatives. The SNPRM comment period closed on
September 12, 2016.
In 2021, the FAA decided to reopen the comment period in order to
solicit comments on any new information or data generated since the
close of the 2016 comment period. The FAA was aware of many airports
that had voluntarily implemented SMS since 2016 that might provide
additional insight to the SNPRM. The FAA also took into account the
Covid-19 pandemic and the five years that had elapsed since the close
of the 2016 comment period, and determined that these factors taken
together warranted reopening the comment period. Accordingly, the FAA
reopened the comment period for the SNPRM, published at 81 FR 45872,
for 30 days. When the FAA reopened the comment period, the agency
stated that the most helpful comments would: provide only data and
information that was not previously submitted to the rulemaking docket;
reference a specific portion of the proposal; and explain the reason
for any recommended change, including supporting data. The reopened
SNPRM comment period closed on September 23, 2021.
G. General Overview of Comments
The FAA received submissions from commenters in 2016 and 2021 in
response to the SNPRM. The FAA received comments from 38 commenters
during the 2016 comment period, and 17 commenters during the comment
period that it reopened in 2021. In general, the 2021 comments were
similar to the 2016 comments, and were from many of the same commenters
that commented during the 2016 comment period. This preamble identifies
comments that were received in 2021 and comments that were received in
both 2016 and 2021 by indicating the year the comment was received. Any
comments for which the preamble does not note a year were received in
2016.
Although most commenters were certificate holders, some were air
carriers, consultants, academics, and individuals. The following
industry associations submitted comments: Airlines for America (A4A),
Airports Council International-North America (ACI-NA), American
Association of Airport Executives (AAAE), Helicopter Association
International (HAI), and the National Business Aviation Association
(NBAA). The comments addressed the following areas of the proposal:
<bullet> Applicability;
<bullet> Implementation;
<bullet> Non-movement area;
<bullet> Data protection;
<bullet> Safety reporting and interoperability;
<bullet> Training and orientation;
<bullet> Accountable executive;
<bullet> Definitions; and
<bullet> Miscellaneous topics.
III. Discussion of Public Comments and Final Rule
A. Applicability
(1) General Applicability
The majority of airport and industry commenters submitted comments
about the FAA's preferred alternative for the applicability of the
rule. Instead of applying the SMS rule to all certificated airports,
the SNPRM amended the proposed applicability to cover only certificate
holders identified as (a) large,
[[Page 11648]]
medium, or small hubs; (b) having more than 100,000 total annual
operations; or (c) having international services (triggers (a) through
(c) are hereinafter referred to collectively as, the ``preferred
alternative'').
Most commenters generally supported the use of the hub
classification as a trigger for the applicability of this final rule.
However, smaller airports and industry associations questioned the
operational and international triggers.
One commenter disagreed with the FAA's revised approach, instead
suggesting the FAA require SMS for all certificated airports, as
proposed in the NPRM. The commenter believed that applying SMS to a
select number of airports could create two levels of safety for
airports. The FAA disagrees. The FAA has determined that its approach
achieves the most safety benefits in the least burdensome manner, while
also strengthening its alignment with international standards.
Consistent with other provisions of part 139, this approach relieves
relatively small airports from compliance costs when the safety
benefits are lower. These small airports have the opportunity to
voluntarily implement a SMS, if they believe it is beneficial to their
operations.
The FAA continues to encourage airports not certificated under part
139 and part 139 certificate holders that are not subject to this final
rule to voluntarily implement SMS and has made Federal funding
available for SMS Manuals and Implementation Plan development.
Commenters also proposed alternate frameworks for SMS
applicability. For example, some commenters suggested SMS be required
on a case-by-case basis. The FAA disagrees with these suggestions
because these alternative frameworks would generally cause ambiguity as
to when a certificate holder would be required to comply with the SMS
requirements. In the case-by-case example referenced above, suggested
application of SMS may be regarded as a punitive measure FAA could use
to address a certificate holder failing to comply with part 139
requirements. The perception of using SMS as an enforcement tool,
contradicts the non-punitive, safety culture critical to a SMS. The
FAA's actual intent is for SMS to serve as a risk-based tool targeting
highest-risk areas. A case-by-case approach would also be highly
subjective because of the unique conditions of each non-compliance
issue.
Another commenter suggested that the FAA exclude airports holding a
Class IV AOC from the preferred alternative. A Class IV airport is an
airport certificated to serve unscheduled passenger operations of large
air carrier aircraft. A Class IV airport cannot serve scheduled large
or small air carrier aircraft. The FAA disagrees that Class IV airports
should be completely excluded, as they serve air carrier aircraft. If a
Class IV airport meets one of the triggers because it could serve a
large number of air carrier \11\ operations or host international
operations, it meets the standard identified through the risk-based
approach. As discussed later, if a Class IV airport is only identified
under the international trigger, the certificate holder may obtain a
waiver from the SMS requirements if it meets all of the conditions
established in Sec. 139.401(d).
---------------------------------------------------------------------------
\11\ See Sec. 139.5, definition of large air carrier aircraft.
---------------------------------------------------------------------------
One comment received during the 2021 comment period recommended
allowing for a single SMS for use in multi-airports systems. The FAA
agrees with this recommendation, and notes that the regulations allow
this use, provided that each airport can still meet the requirements of
this final rule.
Finally, one commenter observed the preferred alternative could
result in certain airports used by air carriers as alternate or
emergency airports not being subject to the SMS requirement. This
observation is correct: airports designated as an alternate airport are
subject to part 139 requirements only if they fulfill one of the
triggers.
(2) Triggers
(i) Hub trigger: In the SNPRM, the FAA proposed using data from the
National Plan of Integrated Airport Systems (NPIAS) to identify which
certificate holders would qualify under the hub trigger. One commenter
stated that there is a lag between when NPIAS data is gathered,
published, and becomes publicly available. While the commenter
requested the FAA use a different data source to determine hub
applicability, it also asked the FAA to report SMS applicability within
the biennial NPIAS Report to Congress. The FAA partially agrees with
these requests. The FAA will use the annually updated Enplanements at
All Airports (Primary, Non-primary Commercial Service, and General
Aviation) by State and Airport data available on <a href="http://FAA.gov">FAA.gov</a> to determine
hub applicability. The FAA pulls this data from the Air Carrier
Activity Information System (ACAIS), an FAA database containing data
reported by the air carriers to the U.S. Department of Transportation,
Bureau of Transportation Statistics. The FAA has used ACAIS since the
1980s to categorize airports based on enplanements and determine
entitlement funding under the Airport Improvement Program. The FAA
shares this data with airports annually and uses it to inform the NPIAS
report. The FAA does not plan to add information about SMS
applicability to the NPIAS (e.g., adding a column/field to indicate
whether the airport is required to implement SMS) as inconsistencies
might exist due to a reporting lag. Instead, the FAA will maintain a
separate list of airports required to implement SMS on our public
website, <a href="http://FAA.gov">FAA.gov</a>.
(ii) Operations trigger: In the SNPRM, the FAA proposed using
operational data submitted through FAA Form 5010-1, Airport Master
Record. To determine which airports would be subject to the SMS
requirement under this trigger, the FAA used a ``snapshot'' approach,
gathering operational data reported in the system on August 1, 2012.
Commenters requested changes to either the operations trigger or the
source data. Commenters also expressed concerns about the FAA's
snapshot approach, explaining that multiple factors could cause airport
operations to vary on a yearly basis, causing an airport to exceed
100,000 operations for a particular year but fall below the trigger
threshold in the preceding or following years.
The FAA agrees with commenters' concerns about the snapshot
approach. Therefore, the FAA will use a 3-year rolling average to
determine applicability under the operations trigger.
Accordingly, this final rule retains the operations trigger with
minor modifications. This final rule will not use FAA Form 5010-1 as
the sole source of data used to determine who qualifies under the
operations trigger. Instead, the FAA will use the following: (a)
traffic counts reported by the Air Traffic Control Tower through FAA
Operations Network (OpsNet) for airports with FAA or contract towers;
(b) FAA Form 5010-1 data for non-towered airports; or c) other FAA-
validated counting systems. Historical OpsNet data is publicly
available through <a href="http://FAA.gov">FAA.gov</a>.
Lastly, the final rule adds a clause to Sec. 139.401(a)(2) to
clarify that operations for the purposes of this trigger mean the sum
of all arrivals and departures. This addition does not change the
meaning of operations as it is used in the context of the operations
trigger and as it was proposed in the SNPRM, but merely provides
additional clarity.
(iii) International trigger: In the SNPRM, the FAA proposed
requiring SMS at all airports with international
[[Page 11649]]
services, specifically: (a) those identified as a port of entry (under
19 CFR 101.3), (b) designated international airports (under 19 CFR
122.13), (c) landing rights airports (under 19 CFR 122.14), or (d) user
fee airports (under 19 CFR 122.15). Seven commenters expressed general
concern that small airports with Customs and Border Protection (CBP)
facilities accommodating international general aviation traffic, not
scheduled air carrier operations, are unnecessarily included in the
international trigger. Several commenters recommended that the FAA
should only require airports with scheduled international service to
have SMS. In 2021, commenters reiterated concerns about the SMS
requirements that would apply to airports under this particular
trigger.
The FAA requested comments on alternate methods for identifying
international airports, since the FAA no longer maintains Advisory
Circular 150/5000-5, Designated U.S. International Airports.
Commenters had mixed responses to the Agency's use of CBP's Guide
for Private Flyers list. Many requested the FAA not use the list
because it is outdated and is not hosted by the Agency. One commenter
recommended the FAA modify FAA Form 5010-1 to include a new field for
certificate holders to self-report the availability of international
services. Some commenters requested the FAA establish a joint
government/industry task force to assess the accuracy of CBP's lists
and develop another method to identify international status, which
could include self-reporting by airports.
The FAA also agrees with commenters' concerns about the data source
for international applicability. It does not appear that any one data
source document contains the most up-to-date list of airports with
international services. Therefore, this final rule removes reference to
CBP regulations. Instead, the FAA will use appropriate available
sources of data to determine applicability under this trigger. In
addition to CBP regulations, the Agency will use CBP website
information and the private flyers list of available airports. The
combined use of these lists provides a more comprehensive source of
information to determine which airports host international services.
The FAA determined that it is unnecessary to establish a joint
government/industry task force to develop this information since it is
available directly from CBP. The FAA will defer to the expert agency
and will not question the accuracy, data gathering systems, analysis,
or processes of CBP. As previously stated, the FAA intends to maintain
the master list of qualified airports. The FAA determined that it is
unnecessary to note this applicability in other lists such as the FAA
Form 5010-1 database or the NPIAS because doing so could lead to
inconsistent data due to potential reporting lags.
The FAA also agrees with comments submitted in 2016 and 2021 that
the intent of the international trigger is not to impose a burdensome
regulation on certificate holders with international service
capabilities aimed exclusively at general aviation traffic. Thus, the
FAA incorporated a provision into this final rule allowing airports
hosting international services exclusively for general aviation traffic
to obtain a waiver from the SMS requirement. An airport may obtain a
waiver as long as there is no tenant at the airport that is required to
comply with a SMS requirement imposed by any applicable law or
regulation of its country of origin (i.e., the jurisdiction that issued
the operator's air carrier certificate, air operator certificate, or
equivalent) or any other applicable governing jurisdiction.\12\ To
obtain a waiver, a certificate holder must submit a formal, written
request to the appropriate FAA Regional Airports Division Manager
justifying its waiver request, pursuant to Sec. 139.401(d). As
discussed later in the preamble, FAA estimates that approximately 74
airports would meet this provision and be eligible to apply for a
waiver.
---------------------------------------------------------------------------
\12\ If an airport has any tenant required to implement a SMS
pursuant to any foreign law or regulation, such foreign jurisdiction
could prevent the tenant from operating into, or out of, a U.S.
airport that does not have a SMS.
---------------------------------------------------------------------------
The FAA recognizes that an airport's status could change based on
the turnover of tenants conducting business at any given moment. For
certificate holders granted a waiver, this final rule (Sec.
139.401(d)) requires the certificate holder to report to the FAA
whether it has had any change in international air carrier service that
affects the applicability of part 139 SMS requirements every 2 years.
The FAA also received comments in 2016 and 2021 alleging the
framework did not comply with ICAO standards. The FAA concludes that
ICAO Annex 14 identifies standards and recommended practices that
address certificated airports with international air carrier service.
This final rule's international trigger framework is consistent with
the overarching intent of the international standards.
(3) Authority To Implement Triggers
Several commenters asserted that the FAA does not have sufficient
authority to implement the proposed triggers. As stated in the SNPRM,
the FAA has sufficient statutory authority under Title 49 of the United
States Code, Subtitle VII, part A, subpart III, section 44706,
``Airport operating certificates,'' as well as section 44701, ``General
requirements,'' and section 44702, ``Issuance of certificates,'' to
require SMS at any certificated airport--including those identified as
having international services.
(4) Annual Review of Applicability
The FAA was asked to clarify: (a) the timeline and process for
reviewing the final rule's applicability to an airport; (b) how the FAA
will review each airport's status including when the review will occur;
and (c) how much time a newly identified airport would have to comply
with this final rule.
The FAA plans to conduct its annual applicability review at the end
of each calendar year after this final rule becomes effective. After
each annual review, the FAA will post a list of qualifying airports on
<a href="http://FAA.gov">FAA.gov</a> and send airports that qualify due to a status change a letter
notifying them of their qualification.
This final rule requires a newly qualified airport to submit its
Implementation Plan within 18 months from notification of qualification
by the FAA (see Sec. 139.403(a)(4)). After the FAA approves the
Implementation Plan, the certificate holder has 12 months to submit its
SMS Manual and/or ACM update and 36 months to fully implement SMS.
For an airport that initially qualified under any of the triggers
but no longer qualifies due to a status change, the certificate holder
will be required under Sec. 139.401(h) to continue to develop,
implement, maintain, and adhere to the SMS for the longest of either 24
consecutive calendar months after full implementation; or 24
consecutive calendar months from the date it no longer qualifies under
Sec. 139.401(a). Additionally, some airports may cross the threshold
of the 100,000 operations criteria from one year to the next. The 24
consecutive calendar months ensure greater continuity and
predictability in the airport's SMS. The FAA determined 24 calendar
months was the minimum time that would be necessary to accurately
validate the withdrawal of the triggering requirements. FAA believes a
period beyond 24 consecutive calendar months would be overly burdensome
to airport operators.
[[Page 11650]]
If at any time during the application process for an AOC, an
airport operator becomes subject to this final rule under any of the
triggers identified in Sec. 139.401(a), then the FAA expects that such
airport operator will develop a SMS simultaneously with the development
of its certification program. The FAA does not expect the
Implementation Plan requirement for airport operators seeking an AOC
under Sec. 139.103 to create an additional burden because the FAA
anticipates that the process will occur simultaneously with the
certification process.
B. Implementation
Nearly every commenter from both 2016 and 2021, including
certificate holders, industry associations, and consultants, commented
on the FAA's proposed timeline for submission of the certificate
holder's Implementation Plan, SMS Manual, ACM update, and full
implementation. While most agreed the amended proposal for submitting
the Implementation Plan and SMS Manual was acceptable, none thought a
certificate holder could be fully implemented within 2 years.
Commenters from the 2021 comment period requested further clarity on
how the final rule would affect existing SMS programs. The final rule
supplemental guidance incorporates more detail for airports
implementing an existing SMS into their part 139 compliance program.
(1) Phased Implementation
In the SNPRM, the FAA addressed comments to the NPRM requesting the
FAA mandate a phased approach to implementation. This would entail
setting different regulatory timelines for implementation based upon,
for example, each SMS component, or requiring the implementation of the
SMS in the movement area prior to non-movement areas. As explained in
the SNPRM, to facilitate maximum flexibility and scalability, the FAA
did not propose a one-size-fits-all implementation approach. A
certificate holder is granted flexibility in structuring and fine-
tuning its Implementation Plan to best fit its operations and
capabilities. Certificate holders are therefore able to phase
implementation, either by SMS component or by movement versus non-
movement area, as long as they fully implement SMS by the required
deadline.
During both the 2016 and 2021 comment periods, commenters
reiterated previous comments to the NPRM asking the FAA to require a
phased approach and permit more time for implementation.
The FAA maintains that it will not require airports to use a phased
approach. This final rule is performance-based and allows flexibility
in how the certificate holder implements SMS within the required
deadlines. A certificate holder could choose to phase its
implementation, as long as that phasing occurs within the full
implementation deadline. The FAA addresses potential phasing options
and considerations in the related AC, which takes into account
experiences from pilot studies and other implementing countries. The AC
is a guidance document and the FAA stresses that certificate holders
may choose to pursue a phased approach--or not--and to structure their
implementation to best fit their operations, needs, and capabilities.
The FAA also acknowledges that safety assurance processes and
procedures, including program evaluation and auditing, would require
experience under the SMS to be meaningful. By the deadline for full
implementation, the FAA expects a certificate holder to identify those
safety assurance processes and procedures and a timeline for rolling
out those activities identified in the SMS Manual or ACM; not actually
apply those practices prior to full implementation.
(2) Staggered Implementation
In addition to requesting a phased implementation, numerous
commenters requested the FAA impose a staggered approach to
implementation. The meaning and scope of ``staggered'' varied per
commenter, but commenters focused on staggering by size and complexity
of airport operations, by applicability triggers, or based on airport
human and financial resources.
The FAA agrees that a staggered approach will benefit industry
implementation as well as FAA review and oversight. Therefore, this
final rule staggers rollout of document submission and implementation
requirements based on the applicability triggers. This approach
conforms to commenters' requests to implement a staggered approach
based on size and complexity of the airport's operation. By being the
last to implement, smaller, less complex operations gain the ability to
learn and seek advice from larger, more complex airports that already
underwent the process. They will also have more time to identify
resources and program appropriate funding, where needed.
(3) FAA Review of Documents
The majority of commenters requested the FAA provide a detailed
timeline for FAA review, and approval or acceptance, of the certificate
holder's Implementation Plan and SMS Manual/ACM update. Several
commenters specifically requested that this final rule include
regulatory text imposing deadlines for FAA review. Commenters also
requested the FAA conclude that if a certificate holder receives no
feedback from the FAA Regional staff within a certain number of days
after document submission (e.g., 60 or 90), then the Implementation
Plan or SMS Manual should be deemed approved or accepted.
Lastly, the FAA was asked to explain whether it expects a
certificate holder who has already voluntarily implemented (or begun
implementation of) a SMS to submit an Implementation Plan. The
commenter suggested these airports conduct a gap analysis to determine
gaps between their established programs and this final rule and submit
a letter to the FAA summarizing those gaps.
The FAA acknowledges the importance of approval of the
Implementation Plan to full SMS implementation. Therefore, the
deadlines for submission of the SMS Manual and/or ACM update and full
implementation dates are calculated based on the FAA's approval of the
Implementation Plan, rather than the effective date of this final rule.
This approach is similar to the one used in part 5, except that it does
not provide an absolute deadline by which the FAA must approve each
Implementation Plan.
On average, the FAA estimates it will take an inspector 60 days to
review an Implementation Plan and 90 days to review a SMS Manual and/or
ACM update. The FAA deems these estimates reasonable and achievable
under the staggered implementation approach. FAA Regional inspectors
will work closely with their team leads, managers, and Headquarters
liaisons should any problem or question arise about the submission or
review process. Furthermore, the change to how the deadlines are
calculated (i.e., based on the Implementation Plan approval date)
allows for more communication between the inspector and certificate
holder, should changes be required.
The FAA intends to leverage existing long-standing processes,
whereby the FAA Regional inspectors work closely with the airport
operator to review and approve submitted changes to their ACM. These
processes are typically explained in FAA Orders, which are publicly
available documents. FAA Order 5280.5, ``Airport Certification Program
Handbook,'' will provide inspectors with guidance on how to
[[Page 11651]]
review, approve, and accept document submissions, and also inspect SMS
implementation. Part 139 does not include a process for certificate
holders to resolve disapproval of changes to their ACM, and the FAA has
not added such a process in this final rule.\13\ The ACM review
processes have historically been successful under the part 139 program.
---------------------------------------------------------------------------
\13\ The FAA notes that part 5 also does not detail resolution
of disapproval or non-acceptance.
---------------------------------------------------------------------------
The FAA developed a standardized Implementation Plan template in AC
150/5200-37A and has updated the material along with this final rule.
Certificate holders are not required to use the template but are
encouraged to do so to simplify and expedite FAA review and approval.
A certificate holder is not required to submit changes to its
approved Implementation Plan. As discussed in the SNPRM, the
Implementation Plan serves as a tool to help certificate holders
develop and implement the various components and elements of SMS within
the prescribed and/or approved deadlines. Once approved, the FAA
expects the certificate holder to make necessary adjustments to ensure
compliance with the prescribed deadlines.
Airports that have already voluntarily implemented SMS also must
provide an Implementation Plan detailing how they will comply with this
final rule. The FAA has determined that the Implementation Plan
requirements are scalable, flexible and not overly burdensome. The
certificate holder could use the AC guidance material and template to
identify whether it has already completed the elements required under
this final rule to assess any gaps between the final rule and its
existing programs. Certificate holders may use an existing gap analysis
as the basis for their Implementation Plan. However, the FAA would not
accept a gap analysis alone, in lieu of the Implementation Plan.
(4) Timeline for Document Submission and Full Implementation
The SNPRM proposed an amended schedule for submission of a
certificate holder's-Implementation Plan (12 months after the rule's
effective date) and the SMS Manual and/or ACM update (24 months after
the rule's effective date). The SNPRM implied that full implementation
would be completed as of the date the SMS Manual was submitted. Most
commenters agreed the amount of time proposed for submitting the
Implementation Plan and SMS Manual was acceptable. However, many
commenters from the 2016 and 2021 comment periods believed that full
implementation was unachievable within 2 years. Numerous comments
supported ICAO's model allowing 3 years for full implementation, while
others supported alternate timelines ranging from 3 to 8 years. One
commenter during the 2021 comment period argued that the implementation
period of 2 years was too long. Commenters during both the 2016 and
2021 comment periods stated that by extending the timeline for full
implementation, certificate holders would have more time to (a) amend
existing tenant leases in non-movement areas, and change applicable
leaseholds, contracts, policies and procedures; (b) work with State
legislatures to protect SMS-related data; (c) implement based on FAA
review and approval of the Implementation Plan; (d) effectively manage
the number of hazards reported; (e) garner support and buy-in, hold
partnering sessions with all stakeholders, and ensure that the written
program will be positively received and accepted upon implementation;
and (f) obtain local, state, or Federal funding to meet SMS
requirements (e.g., to obtain consultant services, acquire software
systems, etc.). One commenter from the 2021 comment period recommended
that the FAA reconsider its submittal timelines for SMS Implementation
Plans and Manuals/ACM SMS sections.
The FAA agrees it is appropriate to increase the time allotted for
full implementation. Thus, under this final rule, certificate holders
qualifying under the hub trigger must be fully implemented
approximately 4 years from the effective date of this final rule, plus
any additional time that is required for FAA approval of the
Implementation Plan. Because the FAA is using a staggered approach to
submission of the Implementation Plan, certificate holders qualifying
under the operations trigger have over 4.5 years and those qualifying
under the international trigger have over 5 years to fully implement
from this final rule's effective date.
Table 3 depicts the timeline for submission of the Implementation
Plan, SMS Manual and/or ACM update, and full implementation based on a
trigger. It also provides an estimated full implementation date based
on a 60-day FAA review and approval of the Implementation Plan. The
only documents required for submission are the Implementation Plan and
SMS Manual and/or ACM update.
During the 2021 comment period, the FAA received several comments
urging the FAA to reconsider SMS rulemaking and required implementation
at this time due to the economic impact airports are facing as a result
of the COVID-19 pandemic. The FAA recognizes the pandemic's impact on
many airports; however, this rule's triggering criteria in Sec.
139.401(a) account for factors that influence the triggers, such as the
COVID-19 pandemic. The final rule also includes an implementation
schedule based on the trigger and continues to be scalable and flexible
to accommodate changes in airport operations. As previously addressed,
Federal funding is also available for SMS Manuals and Implementation
Plan development.
Table 3--Timeline for Submission of the Implementation Plan, SMS Manual and/or ACM Update, and Full
Implementation Based on Trigger
----------------------------------------------------------------------------------------------------------------
Submit implementation Submit SMS Manual and/
Triggers plan or ACM update Fully implement *
----------------------------------------------------------------------------------------------------------------
Large, medium, and small hubs....... 12 months from 12 months from date on 36 months from the date
effective date. which the FAA approves on which the FAA
the Implementation approves the
Plan. Implementation Plan.
+100,000 average annual operations.. 18 months from 12 months from date on 36 months from the date
effective date. which the FAA approves on which the FAA
the Implementation approves the
Plan. Implementation Plan.
International airports.............. 24 months from 12 months from date on 36 months from the date
effective date. which the FAA approves on which the FAA
the Implementation approves the
Plan. Implementation Plan.
----------------------------------------------------------------------------------------------------------------
*Approximate dates assume 60-day FAA review of Implementation Plan.
[[Page 11652]]
(5) Timeline for New Airports Qualifying After the Effective Date of
This Final Rule, or Due to Changes in Status
In the SNPRM, the FAA discussed SMS requirements imposed on: (a)
airports that were subject to the rule at the time of the effective
date of this final rule, and (b) airport operators requesting an AOC
(newly certificated airports) after the effective date of this final
rule. The FAA failed to address certain circumstances that could arise
after the effective date of this final rule; particularly, when a
certificate holder could become subject to, or no longer subject to,
the requirements of this final rule due to a change in its hub,
operations, or international status. In these instances, two commenters
requested clarification of the timelines for submission of
Implementation Plans, SMS Manuals and/or ACM updates, and full
implementation.
As further discussed in section A, ``Applicability,'' this final
rule addresses these circumstances and requires the certificate holder
to: (a) submit an Implementation Plan within 18 months of notification
of qualification by the FAA; (b) submit a SMS Manual and/or ACM update
within 12 months of Implementation Plan approval; and (c) fully
implement a SMS within 36 months of Implementation Plan approval. This
final rule also addresses circumstances in which a certificate holder
no longer meets any of the qualification triggers. Section 139.401(h)
requires the certificate holder to continue to develop, implement,
maintain, and adhere to its SMS for the longest of either twenty-four
consecutive calendar months after full implementation; or twenty-four
consecutive calendar months from the date it no longer qualifies under
Sec. 139.401(a). For illustration purposes only, assume a certificated
airport qualified only under the international trigger due to the
presence of a part 129 international carrier. If the international air
carrier ceases operations at the airport, and if there are no other
commercial international operations, then the airport no longer will be
subject to the SMS requirements, but Sec. 139.401(h) requires the
airport to continue to develop, implement, maintain, and adhere to its
SMS for the longest of either twenty-four consecutive calendar months
after full implementation; or twenty-four consecutive calendar months
from the date it no longer qualifies under Sec. 139.401(a). Some
airports may cross the threshold of the international flights criteria
frequently. The FAA determined twenty-four calendar months was the
minimum time that would be necessary to accurately validate the
withdrawal of the triggering requirements. FAA believes a period beyond
twenty-four consecutive calendar months would be overly burdensome to
airport operators.
C. Non-Movement Area
The FAA believes it is essential that SMS regulatory requirements
apply to non-movement areas through part 139 because. . . . We received
comments during the 2016 and 2021 comment periods from numerous
entities, including associations, certificate holders, and air
carriers, on the proposed application of SMS to non-movement areas.
Except for a few notable exceptions, most disagreed with the FAA's
proposal to include non-movement areas in an airport's SMS. Nearly all
of these commenters suggested ways--through either regulatory text or
preamble discussion--for the FAA to clarify its intentions with respect
to applicability of SMS to non-movement areas and to improve the
requirements to reflect the practicalities of airport operations.
Several of these commenters from both the 2016 and 2021 comment
periods also urged the FAA to resolve potential duplication and
conflicts between the SMS of an air carrier tenant (i.e., a part 119
certificate holder subject to part 5 SMS) and the SMS of an airport
operator for activities conducted in leased facilities located in non-
movement areas. Commenters from both comment periods suggested that
airport involvement in air carrier tenant leased areas could introduce
new risks for air carriers because the air carriers would have to
ensure compliance with different procedural mitigations at each airport
they fly into. Commenters from both comment periods also addressed
potential duplication and conflict for passenger operations in non-
movement areas. However, both airport and cargo operators indicated
that operations on cargo ramps are unique since they are managed
exclusively by cargo operators. Lastly, commenters from both comment
periods asked the FAA to exclude non-movement areas subject to
exclusive area agreements with the Transportation Security
Administration (TSA), when the certificate holders have implemented
SMS.
The FAA received and considered the following suggestions to
address the implementation in non-movement areas:
1. Make SMS implementation in non-movement areas voluntary for part
139 certificate holders;
2. Apply SMS in the non-movement areas only for ``traditional''
airport responsibilities (e.g., infrastructure condition, driving,
airport-provided or required marking and lighting, and public
protection), and let air carriers or other third parties address other
functions (e.g., pushback and towing, aircraft servicing, jet bridge
operation, and baggage/cargo handling);
3. Encourage (or require) part 139 certificate holders to implement
SMS first in the movement area and then in the non-movement areas
(phasing in areas in which the airport has complete control, areas in
which the airport shares control, and areas in which a third-party has
control);
4. Permit part 139 certificate holders to exclude SMS applicability
from areas specifically identified in the SMS Manual that are under the
control of one or more air carrier tenants with part 5 SMS;
5. Allow part 139 certificate holders to delegate their authority
to their tenants to implement SMS in certain non-movement areas where
the certificate holder can show the tenant has greater control, or
limit the role of the airport operator in such areas to that of a
``coordinator'';
6. Permit part 139 certificate holders to delegate SMS oversight
and responsibility to a designated senior official of each affected
tenant; and
7. Clarify whether the part 139 certificate holder SMS or the air
carrier tenant SMS has precedence for safety issues in non-movement
areas, subject to the SMS requirements of parts 5 and 139 (e.g., gate
operations near aircraft, ground servicing vehicles, etc.).
(1) Regulatory Authority in the Non-Movement Area
One commenter reasserted its argument--first brought forth in its
comments to the NPRM--that the FAA lacks the necessary authority to
regulate non-movement areas pursuant to 49 U.S.C. 44706. Another
commenter stated the FAA has not offered a compelling reason to
substantiate the proposed expansion of its regulatory oversight to non-
movement areas.
The FAA has broad authority under 49 U.S.C. 44702 to issue AOCs.
Under 49 U.S.C. 44706, the FAA can issue an AOC to a person desiring to
operate an airport if it finds that the certificate holder ``properly
and adequately is equipped and able to operate safely under this part
and regulations and standards prescribed under this part.''
Furthermore, 49 U.S.C. 44701(c) allows the FAA to regulate to ``reduce
or eliminate the possibility or recurrence of accidents in air
transportation.''
The FAA acknowledges that the majority of the quantified benefits
[[Page 11653]]
related to wildlife strikes are primarily occurring in the movement
area, which make up about 50 percent of benefits. However, the FAA has
identified numerous safety concerns, events, accidents, and incidents
in non-movement areas that constitute hazards and may reasonably
contribute or lead to accidents in air transportation (examples of
which are discussed both later in the preamble as well as in the
accompanying RIA). Instituting SMS in movement and non-movement areas
is consistent with the FAA's authority and safety mission, because it
provides significant benefits and contributes to the reduction or
elimination of the possibility of recurrent air transportation related
accidents.
In one example, discussed further in the RIA, an airport identified
a hazard to passengers walking on a ramp between parked aircraft and
the terminal. The airport mitigated the hazard by adding pavement
markings to guide passengers along a safe path between aircraft and the
terminal. In another example, an airport identified a trend regarding
collisions between moving aircraft wingtips or service vehicles and the
tails of stationary aircraft parked at gates. The airport mitigated the
hazard using pavement markings as a clear indicator for ramp wing-
walkers and marshallers to maintain proper clearances.
The regulatory evaluation of this final rule provides additional
examples of past events that justify the need for implementation of SMS
in non-movement areas. See Section IV, Benefits, in the regulatory
evaluation for this rule. Accidents and incidents continue to occur.
For example, during the 2-month period encompassing January and
February 2017, a large hub airport reported four damaging incidents in
the non-movement area. Two of the incidents occurred during pushback,
and all four incidents involved vehicle movements or safety personnel
required to monitor such movements. In February, May, and July 2017, a
second large hub airport (owned and operated by the same entity)
reported three more damaging incidents in the non-movement area,
similar to those experienced at the first airport.
Furthermore, as discussed in the SNPRM, and in direct support for
instituting SMS in non-movement areas, pilot studies found that it was
difficult to apply SMS concepts only to the movement area because
aircraft and airside personnel routinely flow between movement and non-
movement areas. Airport operators and/or airport owners currently have
sufficient authority to implement the training, safety reporting, and
Safety Risk Management (SRM) processes required in this final rule, as
well as to undertake the additional responsibility and burden in the
non-movement area that will result from this rule, including potential
development of new expertise in this area.
(2) Inclusion of Fuel Farms, Baggage-Makeup, and Military Areas
A commenter argued against the inclusion of fuel farms as part of
the SMS requirements. The FAA disagrees that SMS implementation in fuel
farms should be voluntary for airports. As stated in the SNPRM, fuel
farms are regulated under Sec. 139.321 as part of the certificate
holder's AOC. Therefore, it is a natural progression to implement
relevant portions of the SMS in the fuel farm environment.
Another commenter requested the FAA include baggage-makeup areas
within the definition of non-movement area. The FAA previously
responded to issues about applicability to baggage-makeup areas in both
the ``Responses to Clarifying Questions (to the NPRM)'' and the SNPRM.
The FAA continues to disagree with including baggage-makeup areas
explicitly within the definition of non-movement areas. At the majority
of airports, these areas are located in the terminal environment. The
purpose of addressing non-movement areas in SMS is to address
conditions, events, incidents, or accidents that could potentially
threaten, or harm, passenger-carrying operations, and to reduce or
eliminate the possibility of recurrence of accidents in air
transportation (as authorized by 49 U.S.C. 44701, 49 U.S.C. 44702, and
49 U.S.C. 44706). However, if a baggage-makeup area is located outside
the landside facilities--in proximity to air carrier operations--the
certificate holder would need to ensure the implementation of relevant
portions of this final rule, like awareness of the safety reporting
system for individuals working in the external baggage-makeup areas.
The ``non-movement area'' definition covers these rare instances
without explicitly identifying baggage-makeup areas.
The FAA addressed certain issues about joint-use airport facilities
in the NPRM and SNPRM. Notwithstanding, several commenters--including
various certificate holders--stated the SNPRM was unclear with respect
to non-movement areas that are under the exclusive control of the
military or other governmental entities. The FAA maintains its position
that non-movement areas under the exclusive control of military units
or other governmental agencies are excluded from the applicability of
SMS requirements. This exclusion will apply to military facilities at
joint-use airports or leased areas at joint-use airports. All such
areas must be identified in the SMS Manual and/or ACM update, and the
certificate holders should include the exclusion in any ``lease and use
agreement''--or similar legal instrument--with applicable military
units or governmental agencies. Certificate holders can--at their own
initiative--promote the voluntary inclusion of the military and
governmental bodies in SMS-related activities and programs.
(3) Inconsistency With ICAO Standard
A commenter noted that ICAO Annex 19, Appendix 2, states an
``organization's SMS should identify hazards and mitigate risks
associated with its products or services.'' It argued that an airport's
SMS should only be applicable to products or services provided by the
airport or its contractors, meaning that services provided in non-
movement areas by parties other than the airport operator would not be
covered (e.g., baggage handlers or provisioning crews). The commenter
believed the FAA's proposal is inconsistent with this international
standard and may lead to negative consequences.
The FAA does not agree with the commenter's interpretation. ``Note
2'' of Amendment 1 to ICAO's Annex 19 states: ``the service provider's
interface with other organizations can have a significant contribution
to the safety of its products or services.'' Section 2.1.1 of Appendix
2 states: ``the service provider shall develop and maintain a process
to identify hazards associated with its aviation products or
services.'' Furthermore, pursuant to section 2.1.2: ``hazard
identification shall be based on a combination of reactive and
proactive methods.''
The sections referenced above evidence and recognize the complexity
of certain operations (i.e., airport operations). The interface between
a service provider and other organizations can significantly contribute
to the safety of the service provider's products or services. Airport
operations are complex, and certain actions occurring in movement and
non-movement areas could pose a threat to the safety of aircraft and
air transportation. Airports should consider all conditions that could
pose a threat or hazard to the airport's operations, whether partly or
completely located in the movement or non-movement areas. This is not
an issue of where the hazard occurs, but if
[[Page 11654]]
it could occur. Conditions in the non-movement areas could constitute
hazards because they can foreseeably lead--or be part of a chain of
events that leads--to aircraft accidents (e.g., An aircraft taxis over
wheel chocks left on the ramp, causing damage to the aircraft's nose
wheel spray deflector. The damaged deflector prevents extension or
retraction of nose gear after takeoff, causing an emergency diversion
and nose gear-up landing.\14\
---------------------------------------------------------------------------
\14\ Ref. <a href="https://www.asias.faa.gov/apex/f?p=100:17:::NO::AP_BRIEF_RPT_VAR:CHI01FA270">https://www.asias.faa.gov/apex/f?p=100:17:::NO::AP_BRIEF_RPT_VAR:CHI01FA270</a>.
---------------------------------------------------------------------------
Based on the above, and on the FAA's authority to regulate the non-
movement area pursuant to 49 U.S.C. 44701, 44702, and 44706, the FAA
determined the regulation of the non-movement area for SMS purposes is
consistent with ICAO standards.
(4) Air Carrier Operations in Non-Movement Areas
Commenters that commented during both the 2016 and 2021 comment
periods were confused about the applicability of SMS regulatory
requirements in non-movement areas. Some air carriers and airport
operators believed the SMS requirements proposed in the SNPRM would
duplicate requirements already imposed on air carriers through part 5.
These entities believed the part 139 final rule should exclude non-
movement areas under the exclusive control of air carriers since they
are already covered through the air carrier's SMS.
The part 5 final rule limited the FAA's oversight of the air
carrier's SMS to aviation activities conducted under part 121. The FAA
acknowledged in the preamble of the part 5 final rule that some air
carriers may opt to extend their SMS to other aviation and non-
aviation-related activities. The FAA clarified that it would only
conduct oversight of SMS activities related to aviation operations that
the air carriers conduct under part 121. Many air carriers have
voluntarily extended their SMS to include ramp operations, but these
programs are not required to comply with part 5, nor are they inspected
by the FAA.
The part 5 final rule also narrowed the definition of the term
``hazard'' to ensure consistency with the NTSB's definition of
``aircraft accident.'' Accordingly, the part 5 definition of ``hazard''
involves a condition that could foreseeably cause or contribute to an
aircraft accident as defined in 49 CFR 830.2. An ``aircraft accident''
is defined as: ``an occurrence associated with the operation of an
aircraft which takes place between the time any person boards the
aircraft with the intention of flight and all such persons have
disembarked, and in which any person suffers death or serious injury,
or in which the aircraft receives substantial damage.'' By limiting the
scope of the definition of ``hazard'' in part 5, the FAA's oversight is
narrowed to the air carrier's operation.
The FAA notes that certain aspects of an air carrier's operations
conducted in non-movement areas are not subject to the provisions of
part 121. Similarly, unfavorable occurrences, which could lead to an
accident, injury, or damage, may not involve an aircraft with the
intention of flight but could still be of concern to an airport
operator. As previously discussed, the need for proactive safety
management in the non-movement area is evidenced by the large number of
safety accidents and incidents in non-movement areas. Therefore, the
FAA believes it is essential that SMS regulatory requirements apply to
non-movement areas through part 139.
The FAA Office of Airports' (ARP) oversight and inspection related
to application of the SMS to non-movement areas will focus on the
airport operator's processes and practices to ensure proactive safety
management, since ARP inspectors are not authorized to inspect air
carrier operations for compliance with part 5, 119, or 121.
As for implementation of SMS in non-movement areas, the FAA does
not agree that it should be voluntary or dictated by regulation (see
section B, ``Implementation''). However, the FAA agrees that additional
flexibility--to facilitate compliance with the requirements for SMS
implementation in non-movement areas--will be beneficial to account for
unique contractual, business, or operational arrangements involving air
carrier tenants required to implement SMS. For example, the airport
operator could establish a means for air carriers' tenants to share
with the airport any reports, safety information, and analysis relevant
to the air carrier's operations in the movement and non-movement areas
of the airport. The air carrier tenant employees could file the
information through the airport's safety reporting system. However, the
flexibility of this final rule allows for--but does not require--the
certificate holders to enter into an arrangement in which air carrier
tenant employees continue using their employer's confidential employee
reporting system (See 14 CFR 5.71(a)(7)) to communicate relevant safety
data and reports, as long as the air carrier tenant shares relevant
information derived from such reports or findings with the airport.
Section 139.401(e) affords certificate holders such flexibility by
alleviating duplicative reporting and encourages sharing of information
by addressing interoperability issues between the regulated entities.
If the part 139 certificate holder chooses to develop a Data Sharing
and Reporting (DSR) Plan, this option is available.
A certificate may develop a DSR Plan as a means of compliance with
Sec. 139.401(e). If the certificate holder chooses this means of
compliance, the DSR Plan must include, as a minimum: (a) the types of
information (e.g., hazard reports, investigation findings, etc.) the
airport operator expects the air carrier tenants to share if they are
reported through their part 5 confidential employee reporting system or
other hazard collection means; (b) the timeliness of sharing relevant
safety data and reports; (c) the process for analyzing joint safety
issues or hazards; (d) other processes, procedures, and policies to aid
the part 139 certificate holder's compliance with its obligations under
the airport SMS; and (e) the identification of means by which the
requirements of the plan will be executed (e.g., private agreement,
internal bylaws, internal regulations, internal policies, memorandums
of understanding, etc.). The part 139 certificate holder may choose to
incorporate the DSR Plan into the ACM or SMS Manual.
Establishing a DSR does not necessarily require any additional
capital investment by the airport or the tenant to facilitate data
sharing as Sec. 139.401(e) does not prescribe how data sharing should
occur (for example, data sharing could be achieved through routine
meetings between the airport and the part 121 air carrier). A DSR might
also reduce the total amount of incidents that would otherwise be
reported to the airport, as the DSR Plan may allow for a tenant,
through its own internal reporting system and SMS, to analyze and
mitigate reported hazards that it determines do not require further
analysis or mitigation by the airport.
Airport operators must work with air carrier tenants that chose to
participate in the DSR Plan to ensure they agree to the terms it
established. The FAA stresses that the development and participation in
the DSR Plan is voluntary both for the airport operator and air carrier
tenants. Airports that develop a DSR Plan may encourage participation
by, among other things, reminding air carrier tenants of the benefits
afforded through the DSR Plan, such as relief from duplicative
reporting.
[[Page 11655]]
The DSR Plan affords the airport operator flexibility in how it
engages applicable air carrier tenants. This final rule does not
dictate the means by which the airport operator must carry out the
provisions; rather, it requires airport operators choosing this option
to describe how they will implement the provisions. For example, an
airport operator may have sufficient rights and powers to institute
requirements such as data sharing through airport issued rules,
regulations, or policies. In other cases, an airport operator may need
to enter into a private agreement or amendment to an agreement or an
internal directive or guideline to implement such provisions. The part
139 certificate holder will simply identify the means by which it will
implement the minimum requirements of the DSR Plan to allow for the
sharing of information (e.g., private agreement, rules and regulations,
memorandum of understanding, etc.). It will not have to incorporate the
agreements, rules, or other provisions into the DSR Plan.
Regardless of the existence or form of delegation, the FAA
emphasizes that the burden of compliance with the regulatory
requirements established by this final rule rests solely on the part
139 certificate holder. Any failure of an air carrier tenant to uphold
any term or condition established in an arrangement or agreement
between the air carrier tenant and the part 139 certificate holder that
is used to carry out the provisions of the DSR Plan is not a valid or
reasonable justification for lack of compliance with the
regulation.\15\
---------------------------------------------------------------------------
\15\ The FAA notes that the scope of oversight burden under this
final rule is not different than current requirements in part 139.
Airports are currently responsible for compliance in all areas
covered under part 139 and the airport ACM. Moreover, almost every
part 139 airport is federally obligated through the federal grant
program and is required to meet certain federal grant assurances
including the requirement to operate in a safe and serviceable
manner. The oversight expectations present under existing part 139
rules are sustained in this final rule; the SMS process simply
establishes a systematic approach to the airport's already-existing
responsibilities and helps mitigate incidents or accidents that may
occur.
---------------------------------------------------------------------------
Further, an FAA inspector could request to inspect the optional
documentation (e.g., private agreement, internal bylaws, internal
regulations, internal policies, memorandums of understanding, etc.)
referenced in the DSR Plan, whenever the FAA determines--or has
reasonable belief--that the airport is not complying with related
provisions of the regulation. The inspection of the documentation
facilitates the FAA's assessment of compliance with the regulation and
the FAA's understanding of the delegation of responsibilities among the
parties. Therefore, the FAA recommends that certificate holders include
a clause or provision in such agreements or documents that all parties
involved facilitate access to the FAA for the review of the agreements
or documents--at the FAA's request--so the FAA can assess compliance
with all applicable regulatory requirements when in question. As
discussed in Section D, Data Protection, the FAA may request additional
SMS-related data or information under existing regulatory oversight
processes to ensure that systemic or national compliance issues are
reported when appropriate. In most cases, the FAA will review requested
documents while on the airport. The only time the FAA will take
physical possession of SMS-related data off airport will be as part of
an investigation. Otherwise, the part 139 certificate holder will
retain all other SMS-related information.
Airport operators executing a DSR Plan with a tenant would not be
required to make their safety reporting systems available to the
tenants or tenant's employees for safety reporting purposes. The
airport operators would also not be required to extend their SMS
training or make available SMS materials to the tenant's employees if
the tenant's SMS covers such training or materials.
D. Data Protection
Most commenters to the SNPRM that commented during both the 2016
and the 2021 comment periods, including certificate holders,
associations, and air carriers, claim the FAA has not adequately
considered the effects that a lack of data protection will have on SMS
implementation. Commenters asked the FAA to take action to protect from
public disclosure SMS-related information such as hazard reports,
safety risk management documentation, investigations, and Safety
Assurance reports. Without Federal action, these commenters believed a
lack of data protection could significantly impact the effectiveness of
the certificate holder's safety reporting system and overall SMS.
A commenter noted that airport operators generally have greater
difficulty than air carriers in protecting against the disclosure of
safety information because most airports are owned and operated by
governmental entities that may be subject to a state's freedom of
information laws. In the absence of effective protection mechanisms,
most certificate holders could be required to disclose safety data
gathered as part of their SMS.
The FAA was asked to provide guidance on the appropriate way to
handle open records act and Freedom of Information Act (FOIA)
obligations if an airport operator comes into possession of, or has
access to, air carrier SMS information. A commenter stated that if the
FAA intends for safety reporting to be independent of other
governmental functions, it must explicitly include language in this
final rule that prohibits the airport operator from sharing information
with other government entities, notwithstanding any contrary local or
State requirements or law. Another commenter mentioned that airport
operators may not have authority to ignore non-safety implications of
data they receive in connection with shared SMS data. A commenter from
the 2021 comment period requested that the FAA codify a FOIA exemption
for SMS reporting.
The FAA assessed various suggestions for dealing with potential
data protection issues:
(1) State-Level Fix
Two commenters believed that if the FAA finds a way to provide
Federal protection, existing state legislation (in some states) would
grant similar protection. One of the commenters stated that the FAA
would have to opine that grant-obligated airports are required to keep
confidential those records collected in compliance with a SMS rule,
thus allowing protection under its state's open records laws. However,
another commenter explained that its state's existing public records
laws are broad and would not protect any data submitted to the
airport's safety reporting system. While these commenters are not
averse to working with their state legislatures to ensure protections,
they request additional time for implementation to address these
issues. In 2021, one commenter requested an exclusion of SMS-related
data from state level public records requests in the final regulation,
provided the FAA determines it has the authority to create such an
exclusion.
In contrast, two commenters disagreed with the State-level fix,
explaining that the FAA has underestimated the monetary and schedule
challenges posed by putting the onus on the certificate holder to work
with state authorities. The commenter also believes a patchwork of
different protection standards is not conducive to the success of the
SMS effort.
The FAA recognizes that most certificate holders are owned by
public entities, whether it is a State, a subdivision of a State, a
local
[[Page 11656]]
governmental body or other similar entity. Certificate holders are in
the best position to seek legal guidance to determine the most
appropriate way to handle and protect data and information gathered.
They should assess applicable State legal frameworks to determine how
to comply with data privacy laws and reporting requirements. (For
example, SMS data that is required to be redacted as part of a
disclosure requirement might also be subject to applicable State law.)
Furthermore, certificate holders have the ability to evaluate whether
States afford data and information protection mechanisms through local
statutes and regulations or through other legal or contractual
arrangements such as confidential disclosure agreements. Notably, the
FAA does not have the authority to preempt State freedom on information
laws without a congressional mandate. The FAA is also not in a position
to assess any State's legal framework, to impose any requirement to
create or implement State laws and regulations to protect data and
information, or to counsel about handling and protection of data shared
amongst third parties. Thus, the FAA cannot determine whether FOIA
exceptions preclude disclosure requirements under applicable State
laws, or if other laws, regulations, or contractual arrangements would
preclude disclosures made amongst third parties.
(2) Federal-Level Protection
Commenters from the 2016 and 2021 comment period re-stressed their
assertions that existing Federal protections could be used to protect
SMS data. Commenters disagreed with the FAA's finding that data
protection under SSI provisions is inapplicable and may be
impermissible because those procedures are for information obtained or
developed in the conduct of security activities as described in 49 CFR
part 1520. The commenters argued that hazard reports and SRM processes
could identify airport vulnerabilities. Another commenter believed the
FAA should commit to using the provisions of 49 U.S.C. 44735(b)(4) to
assist certificate holders in securing exemptions from state law. One
commenter argued that the FAA already has the legal authority to exempt
SMS-data from disclosure under Federal, state, and local freedom of
information and sunshine laws. The commenter stated that Congress
imposed on the FAA the responsibility of overseeing and regulating
aviation safety in the U.S., and that pursuant to that authority, the
FAA adopted a comprehensive regulatory scheme for certain activities.
As such, the commenter maintained that Federal protection could be
afforded since, whenever the FAA preempts the field, U.S. courts tend
to invalidate state laws and regulations that conflict with the FAA
safety regulations.
Commenters that commented during both the 2016 and 2021 comment
periods agreed that a single Federal standard or statutory exemption
should apply to all airports regarding data and information protection.
Some commenters wanted the FAA to seek legislative protection to
address data protection. Numerous commenters believed that the FAA
should explicitly address data protection in this final rule's
regulatory text and pressed for Federal legislation to protect such
information.
Pursuant to 49 U.S.C. 44735, as amended, the FAA must protect
certain voluntarily submitted reports, data, or other information
produced or collected for purposes of developing and implementing a
safety management system acceptable to the Administrator; however, this
protection is not afforded to any SMS information required to be
submitted to the FAA. Consequently, the FAA is limiting the SMS
information that certificate holders are required provide the Agency
(i.e., certificate holder's implementation plan and SMS Manual, and/or
ACM update).
Specifically, the FAA is not incorporating regulatory language
requiring certificate holders to report to the FAA any safety-related
data developed under a SMS. This approach should have no repercussions
under FOIA and is consistent with the authority under 49 U.S.C. 44735.
It should also not affect the FAA's ability to review a certificate
holder's documentation to assess compliance with part 139; meaning, the
FAA might take possession of such documentation when investigating a
potential issue of non-compliance.
Certificate holders are not prohibited from voluntarily sharing
information with other governmental entities. The protection under
44735 only safeguards against release by the FAA, and does not extend
to other governmental entities nor to private entities. This means that
whenever a certificate holder releases or submits information to any
other governmental entity, the information rendered is not protected
from release by such governmental entity, absent other applicable law.
The information might also not be protected from discovery in civil
litigation, although the certificate holder could request that a court
extend additional or ancillary protections available under the laws of
the relevant jurisdiction. Furthermore, the FAA cannot protect data
that is shared by and among third parties; such protection would have
to be granted statutorily or under a legally-binding agreement to
protect the information that is recognized as protected under state or
local law.
As previously stated in the SNPRM, data protection under SSI
provisions is inapplicable and may be impermissible because those
procedures are for information obtained or developed in the conduct of
security activities, as described in 49 CFR part 1520.
(3) Creation of a National Data Repository
Numerous commenters from both the 2016 and 2021 comment periods
believed data could be protected under existing Federal protections if
the FAA established a national repository for certificate holders to
voluntarily submit hazard data. Two commenters during the 2021 comment
period suggested that such a repository would be advantageous and
reduce the financial burden to airports. One commenter explained that
while the FAA may have little to no need for such information, the
approach would allow certificate holders to take advantage of the
narrow legislative provision.
Regarding the request for the creation of a national data
repository, the FAA acknowledges that such a database would allow it to
protect all SMS data submitted voluntarily to the FAA. Notwithstanding,
the FAA has concluded that a national data repository will not provide
an immediate solution to data protection. As one of the commenters
accurately stated, certificate holders could inundate the FAA with
hazard reports and documentation to gain Federal protection. Further, a
national database would not prevent disclosure under State or local
laws. Certificate holders would still be in possession of the data
before submitting it to the national database.
The FAA remains interested in the long-term idea of a national
database, as a means to identify systemic safety issues and hazards.
The FAA will re-explore this option after certificate holders' SMS
mature, and the FAA has more time to analyze and consider the types of
information that could be submitted as well as all resource
requirements regarding collection. When deemed appropriate, the FAA may
consider implementing a national data repository, pursuant to the
provisions of 49 U.S.C. 44735, which allows the FAA to protect from
disclosure all ``reports, data, or other
[[Page 11657]]
information produced or collected for purposes of developing and
implementing a safety management system'' as long as the data is
furnished voluntarily and is not required to be submitted to the FAA
pursuant to other provisions of law. In addition, the implementing
regulations to 49 U.S.C. 40123, codified at 14 CFR part 193, afford the
FAA the option of designating voluntarily submitted safety information
as ``protected'' information, thereby preventing its disclosure to
unauthorized third parties.
(4) De-Identified Data
During the part 139 SMS pilot studies, certain participants
explored the use of third parties to de-identify hazard reports before
these were filed with the certificate holder. One commenter noted that
such a system would add cost and complexity to SMS implementation and
operation, although it did not address whether the option would result
in the protection of SMS data.
As a clarification, the FAA realizes that some confusion exists
regarding the information that a certificate holder must submit to the
FAA. One commenter from the 2021 comment period stated that the
requirement for airports to share de-identified data with the FAA was
unreasonable.
As stated in the SNPRM, the FAA decided not to propose data
reporting requirements for safety-related data created under a SMS. The
only documents or information that must be submitted to the FAA under
the SMS provisions are the certificate holder's Implementation Plan and
SMS Manual and/or ACM update. While at the entity's facility, the FAA
may request to review additional SMS-related data or information under
existing regulatory oversight processes to ensure that systemic or
national compliance issues are reported when appropriate. The only time
the FAA will take physical possession of SMS-related data off airport
will be as part of an investigation. Otherwise, the certificate holder
will retain all other SMS-related information.
E. Safety Reporting and Interoperability
The SNPRM proposed to require certificate holders to establish and
maintain a confidential hazard reporting system and to encourage all
persons accessing the movement and non-movement areas to report hazards
to the certificate holders. The SNPRM also acknowledged the numerous
ongoing SMS efforts (e.g., part 5 and internal efforts to implement SMS
within the FAA) and the overlapping responsibilities related to hazard
reporting. Commenters to the SNPRM--including certificate holders, air
carriers, an association, and a consultant--commented on the proposed
requirement to establish and maintain a confidential hazard reporting
system.
In addition to concerns about data protection (see section D.
``Data Protection''), commenters sought clarification on how SMS
reporting systems are meant to work and how they should be implemented.
These commenters requested the FAA address how it expects information
and data to flow between the airport tenants (including those required
to implement reporting systems under their own certificate programs)
and certificate holders. Multiple commenters, including certificate
holders and air carriers, believed that requiring employees to report
to multiple SMS systems is duplicative and could cause confusion. A
commenter also expressed concerns about how hazard reporting would be
implemented for crewmembers or air carriers operating into multiple
part 139 airports, stating that it is not reasonable to expect the
crewmembers to be trained to comply with each individual airport's SMS
and reporting systems. Another commenter requested the FAA clarify
whether it considers a confidential hazard reporting system to be the
same as an operational safety issues system.
One commenter from the 2021 comment period asked whether this rule
would apply to air carriers, and whether airports would be expected to
investigate airline incidents or only act as a repository of lessons
learned and corrective actions to be shared with all employees and
employers.
(1) Change in Terminology
As stated in the SNPRM, the FAA agrees the term ``hazard reporting
system'' is confusing and does not adequately address the genesis of
the requirement. The intent of the reporting system is to ensure a
transparent means of reporting safety issues within the movement and
non-movement areas. As such, this final rule changes the terminology in
Sec. 139.402(c)(2) from ``hazard reporting system'' to ``safety
reporting system.''
(2) Data Sharing and Reporting Plan
The FAA agrees that, for air carriers or other tenants that are
required to maintain a SMS, the reporting system as proposed in the
SNPRM could be duplicative. The FAA believes that the DSR Plan (See
section C. ``Non-Movement Area''), could alleviate the duplicative
reporting burden.
Under Sec. 139.402(c)(2), the airport operator is required to
maintain a confidential safety reporting system. The system must be
accessible by all individuals with access to the movement and non-
movement areas (except those excluded through an optional DSR Plan).
The certificate holder needs access to this type of data to proactively
address safety issues in the movement and non-movement areas. While the
FAA acknowledges that the majority of incidents related to wildlife
strikes account for about 50 percent of the estimated benefits
primarily occurring in the movement area, the FAA finds that the
conditions for events, accidents, and incidents that occur are
originating in the non-movement area. The majority of conditions,
events, accidents, and incidents that occur in an airport transpire in
the non-movement area. These conditions that--if unreported,
unanalyzed, or unmitigated--could directly result or indirectly
contribute to a chain of events that lead to accidents in air
transportation.
The FAA reiterates that part 5 works in parallel to this final
rule, as it encourages air carriers and airports to communicate with
one another when hazards and safety issues are identified through their
respective SMS procedures and processes. Consistent with the intent of
this rule and the FAA's SMS policy, the part 5 final rule also
recommended that air carriers notify airports of hazards identified in
airport facilities, so all certificate holders are aware of issues,
analyze the risks, and take appropriate remedial action.
One commenter from the 2021 comment period recommended that the FAA
speed up the development of SMS software to enable data sharing with an
FAA-supported vendor in a manner similar to how the FAA implemented the
SMS requirements under part 5. The FAA does not intend to develop data
sharing software at this time, but reiterates that Federal funding may
be available for SMS software development.
(3) Crewmembers Accessing Non-Movement Areas
The FAA agrees that it is unreasonable to expect that all air
carrier crewmembers would have knowledge of the reporting systems of
all airports they fly into. For air carriers or other tenants not
addressed through an optional DSR Plan, the FAA recommends, but does
not require, that all crewmembers based at a particular airport and
those crewmembers most often accessing an airport's non-
[[Page 11658]]
movement area receive safety awareness orientation and report safety
issues to the airport's safety reporting system. The FAA anticipates
that crewmembers who are not based at an airport, or with limited
access to the non-movement area of other airports, will continue to
report safety issues through their air carrier's employee reporting
system.\16\
---------------------------------------------------------------------------
\16\ FAA anticipates that most air carriers with part 5 SMS
programs will develop DSRs between tenants and airports; however,
this rule does not establish a regulatory requirement for an airport
to develop a DSR. Non-DSR agreement airports will continue to
operate as they do currently to meet current requirements of other
established regulations. In situations where a DSR does not exist, a
pilot, for example, would continue to report hazards through their
company's reporting mechanism, or through the airport's Safety
Management System.
---------------------------------------------------------------------------
The FAA deems it crucial for all individuals with access to the
movement and non-movement areas to have a means of reporting safety
issues and hazards, since there are limited numbers of certificate
holder employees with access to these areas at any given time. The
availability of alternate reporting venues increases the possibility
that an air carrier employee or an employee of another tenant located
at the airport will, upon witnessing safety issues not readily visible
to certificate holder employees, report those observations. This, in
turn, allows the certificate holder to analyze the situation and take
prompt action to fix any problems found or implement ancillary measures
to enhance safety at the airport.
F. Training and Orientation
The SNPRM identified a 2-prong approach to training requirements.
First, a small number of certificate holder employees (those involved
in the implementation and compliance with the SMS) would be required to
receive SMS-specific training. Second, all other individuals with
access to the movement and non-movement areas of the airport would not
have to undergo SMS-specific training, but would instead receive hazard
(safety) awareness orientation (e.g., they could be provided with
brochures or be required to complete training modules that discuss what
a hazard is and how to report it to the airport's safety reporting
system).\17\
---------------------------------------------------------------------------
\17\ Airport SMS safety awareness/orientation can be
accomplished through such methods as written communication,
presentation, or brochures.
---------------------------------------------------------------------------
Most commenters agreed with the FAA, but some from both the 2016
and 2021 comment periods requested that the FAA provide clarification.
(1) Identification of Roles, Responsibilities, and Minimum Training
Elements
Most commenters requested that this final rule include job roles,
responsibilities, and minimum training elements for compliance.
Comments received during the 2021 comment period reiterated these
requests.
The FAA finds it would be overly prescriptive to (a) identify
specific roles or job titles, or (b) set the minimum elements of SMS-
specific training in regulatory text. This rule is performance-based
and grants latitude to certificate holders in establishing and
tailoring their SMS to their particular operations.
Although the FAA requires the certificate holder to identify an
accountable executive, it grants airport operators discretion as to how
to allocate resources to comply with the remaining requirements of the
rule. Smaller airports may use their accountable executive to implement
other provisions of the rule. For example, the certificate holder can
require the accountable executive to be responsible for both SRM and
continuous oversight under safety assurance, instead of acting
exclusively as the overarching decision maker or figurehead.
Accordingly, the FAA has determined it would be overly restrictive or
burdensome to identify certain roles or job titles warranting training
and orientation.
The FAA does not identify minimum elements of SMS-specific training
for the same reason it does not identify specific roles or job titles.
As explained above, the FAA wants certificate holders to have maximum
flexibility in implementing the SMS, in such a way that it can be
tailored to their unique operating environment, and to facilitate their
compliance with the broad requirements and intent of the rule.
Notwithstanding, in the interest of addressing commenters' concerns,
the FAA decided to incorporate a non-binding, non-exhaustive list of
examples of training programs implemented by pilot study participants
in the AC.
The FAA received several comments in 2021 concerning the training,
qualifications, and deployment of qualified FAA SMS inspectors. Some
commenters from the 2021 comment period were also concerned that FAA's
oversight would encroach into certificate holders' decision-making and
the judgments certificate holders make during the safety risk
assessment process, including the proposed and implemented mitigations.
The FAA intends to train current part 139 inspectors on overseeing
compliance with this rule in the current inspection process, and on how
to provide additional guidance to assist certificate holders with
complying with the rule.
Commenters also questioned whether the FAA would accept the
completion of SMS-related coursework to demonstrate compliance with the
FAA SMS requirements.
Training received in support of the FAA Air Traffic Organization
(ATO) or ARP SMS does not meet the intent of the SMS-specific training
requirements identified in this final rule. Any existing training
provided by ATO or ARP would be specific to compliance with the FAA's
internal SMS efforts and not specific to the individual airport's SMS.
(2) Training Estimates Used in Regulatory Evaluation Calculations
A few commenters from both the 2016 and 2021 comment periods
requested that the FAA provide clarification on how it developed the
training estimates. Many of these commenters offered an approximation
of the number of employees that would require training at their
airport.
The FAA agrees that the number of employees requiring SMS-specific
training will vary per certificate holder. The FAA requested training
information from the airports that participated in the pilot study
programs.\18\ That data was used to develop an average for large-sized
(large, medium, and small hub airports) and small-sized (all other
airports) operations. The FAA analyzed those responses and included the
number of employees needing training based on the specific requirements
of this final rule. The FAA notes that many of the pilot study airports
appeared to provide training on topics outside the scope of this
rulemaking and those courses were not included as part of the analysis.
---------------------------------------------------------------------------
\18\ External SMS Efforts--Part 139 Rulemaking, Airport SMS
Pilot Studies (Sept. 22, 2020), available at <a href="https://www.faa.gov/airports/airport_safety/safety_management_systems/external/pilot_studies/./">https://www.faa.gov/airports/airport_safety/safety_management_systems/external/pilot_studies/./</a>
---------------------------------------------------------------------------
In the 2016 comment period, four airport operators (one of which
holds two AOCs) provided estimated numbers of employees needing
training. One airport operator, who operates a large hub airport,
agreed with the FAA's average estimates of 3 and 10 employees. The
other three airport operators provided their own estimates. One
operator, who holds AOCs for a large hub and a reliever airport,
estimated a total of 40 employees in these airports will require
training. Another large hub airport estimated 30 to 40 employees will
require training. A
[[Page 11659]]
third large hub airport estimated approximately 2 to 3 people per
division will require training. In the 2021 comment period, one
commenter stated that it believed the FAA estimate of 10 employees
requiring comprehensive SMS training at large airports was low. Another
commenter noted that some airports are expanding SRM training to
include Planning, Engineering, and Capital Development teams, which
increases the total anticipated trainees to more than 50 at some
airports (as many as 80 total).
The FAA affirms its preliminary estimates as averages for the
regulated community's unique operations. The FAA recognizes that some
airport operators may have to train more employees than others to
ensure compliance with the rule. The FAA also understands that some
certificate holders may train employees in topics that are well beyond
the scope of this regulation--such as occupational health and safety
issues--but those programs are separate from this final rule (as
violations of other regulations would not necessarily result in part
139 violations). If a certificate holder elects to include training on
topics beyond the scope of this regulation, the FAA would only conduct
oversight of the SMS activities related to the applicable provisions of
part 139. For example, an airport could be cited for a violation of an
OSHA requirement if compliance with OSHA requirements was incorporated
into its ACM, or if the OSHA violation also resulted in a failure to
comply with its SMS process. However, the basis for the noncompliance
would be failure to comply with the SMS process, not non-compliance
with the OSHA requirement.
(3) Safety Awareness Orientation
Commenters expressed concerns about the potential duplicate
requirements already imposed on air carriers through part 5. As
addressed in section C of the preamble, ``Non-Movement Area,''
certificate holders executing a DSR Plan with a tenant are not required
to duplicate safety awareness orientation materials provided in the
tenant's SMS to that tenant's employees. Those employees would be
reporting to the tenant's part 5 confidential employee reporting system
and would not need to be advised of how to report to the airport's
safety reporting system.
One commenter requested that the FAA revise the proposed
requirement to ``update'' awareness materials every twenty-four months
(Sec. 139.402(d)(1)). The FAA agrees and this final rule requires the
airport operator to review and update the safety awareness orientation
materials every twenty-four months or sooner when necessary. An earlier
review and update of the orientation material is necessary when there
has been a change in the material.
(4) Development of Training Materials
Numerous commenters requested the FAA develop and make available
SMS-related training materials that would be compliant with SMS
training requirements.
The FAA notes that the certificate holder is in the best position
to determine the competencies necessary for the individuals with roles
and responsibilities under its SMS. The FAA plans to provide briefings
and guidance materials, including conducting webinars, to help
communicate this information.
While the FAA believes that most certificate holders will rely upon
industry-developed training materials, certificate holders may develop
their own training materials based on industry publications and
guidance. For example, the Airports Cooperative Research Program of the
Transportation Research Board has published numerous reports on SMS-
related topics. Some of these reports provide detailed information,
processes, and examples associated with each of the four components of
SMS. Airport operators could use these publications, as well as other
publicly available SMS material, to develop their own training
materials.
(5) Clarification of ``Comprehensive SMS Training''
The FAA received comments requesting clarification of
``comprehensive SMS training'' as it relates to the training and
orientation requirements. While not in the regulatory text, the term
was used in the SNPRM preamble to identify all training that is
necessary to ensure personnel overseeing the SMS are competent to
perform their roles and responsibilities. Individuals responsible for
analyzing hazard (safety) reports to determine appropriate mitigation
actions must be properly trained in SRM and hazard assessment
procedures. Similarly, individuals with responsibility for daily
oversight of the SMS must be trained in all requirements of the SMS.
The certificate holder may use train-the-trainer formats where
necessary.
(6) Clarification of ``Access''
Commenters requested the FAA clarify or define the term ``access,''
as it is used in Sec. 139.402(d)(1). The term ``access'' applies to
both vehicular and pedestrian access to the movement and non-movement
areas. The intent of this requirement is to ensure that all individuals
who may have an opportunity to witness a safety issue understand what
they should be reporting, when, and how.
G. Accountable Executive
In the SNPRM, the FAA proposed a new definition for ``accountable
executive.'' The new definition addressed the diversity of business
structures and varying degrees of complexity of certificate holders.
The FAA explained that it anticipated most certificate holders would
designate an airport manager or airport director as the accountable
executive, and that accountability could not be delegated. Numerous
entities, including associations, certificate holders, and air
carriers, commented on the revised definition of ``accountable
executive.''
(1) Amendment or Elimination of the Accountable Executive Requirement
While most commenters agreed with the concept of an accountable
executive, the FAA received requests for revisions or explanations. One
2021 commenter incorrectly interpreted the FAA's proposal to allow
certificate holders to designate an accountable organization structure
instead of one executive. This commenter further stated that while
there is a need for an Accountable Executive, in many cases, airport
structure could call for one or more ``responsible executive(s)'' to
oversee the implementation and operation of the SMS.
The FAA is not persuaded by arguments recommending changes to, or
elimination of, the ``accountable executive.'' The concept of an
accountable executive is key to the successful development and
implementation of a SMS and consistent with international standards.
Additionally, this rule requires the identification of an individual as
an accountable executive, rather than the designation of an accountable
organization structure in place of an accountable executive or one or
more responsible executives. A certificate holder may choose to
identify support staff to assist the accountable executive, as
discussed further in the supplemental guidance AC.
(2) Delegation
Commenters asserted that certificate holders should have the option
to delegate the accountable executive's roles and responsibilities to a
lower-level or operational manager with direct
[[Page 11660]]
oversight of the SMS. As stated in the SNPRM, accountability cannot be
delegated. The accountable executive's role is meant to instill safety
as a core organizational value and to ensure that SMS is properly
implemented and maintained through the allocation of resources and
tasks. By designating an accountable executive, responsibility for the
certificate holder's overall safety performance is placed at a high
level within the organization. Some airports may choose to designate
additional positions to implement the daily operation of the SMS.
However, such designations are left to the discretion of the
certificate holders, based on their unique operating environments and
management structures. For guidance purpose, the FAA has included in
the AC examples of accountable executive designations and addressed the
issue of ``responsible executive or manager'' for the day-to-day
oversight of SMS activities.
(3) Personal Liability and Oversight
Commenters from both the 2016 and 2021 comment periods believed the
FAA should make stronger statements limiting the personal liability of
accountable executives. They requested the FAA include preamble
language: (a) stating that the accountable executive is not personally
liable to the FAA through certificate action or civil penalty, and (b)
establishing a clear regulatory intent that this final rule is not
intended to increase or create personal liability for the accountable
executive. Additionally, one 2021 commenter requested that the rule be
revised to allow the accountable executive to seek indemnification from
tenants in respect to SMS compliance issues within their leaseholds,
and to appoint a tenant accountable executive for that purpose.
The definition of ``accountable executive'' also limits both
control and responsibility to ``operations conducted under the
certificate holder's Airport Operating Certificate.'' As ``an
individual designated by the certificate holder,'' the FAA does not
expect the definition to usurp the oversight role of the legislative
body or authority that is the certificate holder.
Concerns regarding the accountable executive's personal liability
for the actions of tenant organizations, air carriers, or leaseholds,
are misplaced. As stated in the SNPRM, the new definition clarifies
that accountable executives are not personally liable to the FAA,
through either certificate action or civil penalty. The FAA limited the
``control'' and ``responsibility'' of an accountable executive to
operations conducted under the certificate holder's AOC. Since the
scope of action and responsibility of an accountable executive is
limited, the FAA decided not to include nor require indemnification by
the accountable executive to any third party under this final rule.
While the FAA does not intend for accountable executives acting within
the scope of their powers and duties to have personal liability to any
third party, the FAA must stress that liability issues are typically
controlled by state law, and the parties remain subject to applicable
state law with regard to liability issues and remedial action.
Generally speaking, the airport manager or director's role of
ensuring compliance with the AOC does not change under this final rule.
Prior to this final rule, violations of part 139 requirements would be
found against the certificate holder. The same logic holds true under
the SMS final rule.
Along the same lines, while the FAA allows an airport operator to
establish a DSR Plan (See section C. ``Non-Movement Area'') to address
reporting and data sharing with applicable tenants required to comply
with part 5, if the certificate holder discovers that the tenant is not
complying with the terms of the agreement, or policy and relevant
safety issues or findings are not being properly or timely conveyed to
the airport operator, the onus for compliance remains with the airport
operator. The airport operator is responsible for ensuring the
airport's safety reporting system is accessible for reports by tenant
employees and that those employees receive safety awareness orientation
materials.
H. Definitions
In the SNPRM, the FAA revised the definitions of numerous terms,
either in response to comments or to conform to agency policy at the
time of the proposal. The FAA received many comments regarding the new
definitions of hazard and non-movement area. The FAA also received
suggestions during both the 2016 and the 2021 comment periods to revise
other terms related to this final rule.
(1) ``Hazard'' Definition
Commenters from the 2016 and 2021 comment periods disagreed with
the FAA's use of the part 5 definition of the term ``hazard.'' They
believed that the term is not applicable to the airport environment
since it is centered on the operation of an aircraft and aircraft
accidents, as defined by the NTSB. These commenters recommended the FAA
use the ``hazard'' definitions included in FAA Order 5200.11, FAA
Airports (ARP) Safety Management System (SMS), FAA Order 8040.4, Safety
Risk Management Policy, and the ICAO Safety Management Manual (3rd
edition).
The FAA understands the confusion arising from the SNPRM definition
of ``hazard'' and the limited reporting that may occur through a strict
reading of the regulatory text. To ensure consistent application and
reporting across the airport-airline industry, as well as to ensure
applicability to the non-movement area, the FAA amends the definition
in this final rule. For this rule, we define the term ``hazard'' as ``a
condition that could foreseeably cause or contribute to: (a) injury,
illness, death, damage to or loss of system, equipment, or property, or
(b) an aircraft accident as defined in 49 CFR 830.2.'' The FAA
determined this revised definition establishes a suitable parameter
that encompasses the wide range of conditions that airports may
encounter and deem as hazards, and it enables airports to include
conditions that are not necessarily related to an aircraft accident.
For example, part (a) of the definition allows for ramp incidents;
accidents and fatalities involving aircraft ground service equipment
and other vehicles; construction-related fatalities; and damage to
airfield facilities including lighting, signage, pavement, safety
areas, and navigational aids to qualify as a hazard. These incidents
would not constitute ``hazards'' if the definition was limited to part
(b) (conditions that could foreseeably cause or contribute to an
aircraft accident). As a result, the FAA revised the definition to more
broadly encompass the myriad of conditions in the airport environment,
including in movement and non-movement areas and conditions involving
and not involving aircraft. The FAA notes that this definition will
also provide flexibility to airport organizations for defining what a
reportable hazard is for their organization, and as a part of
developing their SMS they may define thresholds for what might entail a
reportable incident. This will allow, for example, a small airport to
treat an incident that results in $1,000 in damage as a potentially
reportable incident, whereas a large airport may consider property
damage at that level to be de minimis.
(2) ``Non-Movement Area'' Definition
Commenters requested the FAA retain a more generic definition of
the term ``non-movement area'' as opposed to a definition that
specifies the types of areas included. The FAA was asked: (a) to
exclude ``fuel farms'' from the
[[Page 11661]]
definition of ``non-movement area'' or to at a minimum allow their
inclusion at the option of the certificate holder, and (b) to re-
evaluate its decision not to include baggage-makeup areas in the
definition of ``non-movement area.''
As discussed in section C. ``Non-Movement Area,'' the FAA is
adopting the definition for ``non-movement area'' as proposed.
(3) Harmonization of ``Safety Policy,'' ``Safety Risk Management,''
``Safety Assurance,'' and ``Safety Promotion'' Definitions
The FAA agrees with commenters' request from the 2016 comment
period to update the definitions of ``safety policy'' and ``safety
assurance.'' One commenter from the 2021 comment period emphasized the
need for consistent terminology related to the SRM process. Any
revision must be carefully assessed since both definitions sync with
part 5 instead of internal FAA Orders. Where commenters requested the
FAA use ICAO definitions, the FAA's intent is to first synchronize
these definitions with part 5 or other Agency definitions--if
possible--to ensure the industry uses similar taxonomy. Therefore, this
final rule revises the definitions of the terms ``safety policy,''
``safety assurance,'' and ``safety promotion,'' to sync with the
current definitions in part 5. This final rule also updates the
definition of the term ``safety risk management'' to more closely align
it to the definition in part 5. The notable difference is that airports
typically use the term ``risk mitigation,'' whereas air carriers use
the term ``risk control.'' To address this difference, this final rule
uses both terms for the definition of ``safety risk management.''
I. Miscellaneous Topics
(1) FAA's Rulemaking Authority
A commenter stated that the FAA Aviation Act of 1958 does not give
the Administrator the power to require regulated parties to self-
analyze, self-disclose, self-report, and self-implement procedures
beyond those stipulated through legislative and administrative
processes.
The FAA's authority to issue rules regarding aviation safety is
found in Title 49 of the U.S.C. The FAA proposed this rulemaking under
the authority described in 49 U.S.C. 106(f), 44701, 44702, and 44706
(See section II. A. of this preamble). In the Federal Aviation Act of
1958, as amended and recodified, 49 U.S.C. 40101, et seq., Congress
provided the FAA with (a) exclusive authority to regulate safety, (b)
the efficient use of the airspace, (c) protection of people and
property on the ground, (d) air traffic control, (e) navigational
facilities, and (f) the regulation of aircraft noise at its source.
Title 49 of the U.S.C., section 44706, provides for the FAA to
regulate airport safety through the issuance of airport operating
certificates. Under this statute, Congress requires the certificate to
contain the terms necessary to ensure safety in air transportation.
Under the implementing regulations for section 44706, codified at
14 CFR part 139, the FAA regulates airport certificate holders in many
areas, including: (a) records, (b) personnel, (c) paved areas, (d)
unpaved areas, (e) safety areas, (f) airport marking/signs/lighting,
(g) aircraft rescue and firefighting, (h) snow and ice control, (i)
handling and storing hazardous substances and materials, (j) traffic
and wind indicators, (k) airport emergency plans, (l) self-inspection
programs, (m) pedestrian and ground vehicles, (n) obstructions, (o)
protection of navigation aids, (p) public protection, (q) wildlife
hazard management, (r) airport condition reporting, (s) identifying,
marking, and lighting construction and other unserviceable areas, and
(t) noncomplying conditions.
Requiring certain certificated airports to implement a SMS for the
entire airfield environment is consistent with the FAA's statutory and
regulatory framework described above. The primary purpose of section
44706 and its implementing regulations is to ensure safety in air
transportation and such safety is advanced by the additional safety
measures applicable to airports subject to this final rule. The FAA has
the authority to implement regulations to improve safety at airports
hosting air carrier operations including requiring certificate holders
to develop and implement measures to ensure safety in air
transportation by proactively identifying and mitigating safety
hazards, thereby reducing the possibility or recurrence of accidents in
air transportation. This final rule is a performance-based regulation
that requires certificated airports that meet pre-established
qualification criteria (triggers) to develop and maintain a SMS to
improve the safety of operations conducted at such airports; therefore,
it is within the scope of authority of the Agency.
(2) Applicability to Non-Certificated Airports
The FAA stated in the SNPRM that the proposed rule would only apply
to holders of a part 139 AOC. Commenters asked The FAA to (a) confirm
that it did, and (b) clarify whether the SMS requirement was voluntary
for general aviation airports that are not certificated under part 139.
The FAA confirms that this final rule does not apply to non-
certificated airports, but continues to encourage such airports to
voluntarily adopt SMS. The rule is not affected by, nor does it depend
on, whether an airport has accepted Federal financial assistance or
property conveyances. Further, this final rule does not require airport
tenants to have a separate SMS because it only applies to holders of
part 139 AOCs. As previously discussed, this fact does not prevent
certificate holders from engaging with tenants to implement
alternatives that facilitate compliance with the requirements of the
SMS.
(3) FAA Oversight
The SNPRM included a discussion of the FAA's role and oversight of
certificate holders under the proposed SMS rule. This discussion noted
SMS is not a substitute for compliance with existing regulations and
provided general expectations about inspections in a SMS environment,
emphasizing the importance of implementing a systems-based approach to
oversight.
Commenters from both the 2016 and 2021 comment periods asked the
FAA to clarify certain aspects of its oversight activities,
particularly: (a) how SMS fits in relation to other federal regulations
such as the Occupational Safety and Health Administration (OSHA) rules,
National Environmental Policy Act (NEPA) rules, State regulations, and
other local ordinances; (b) how SMS brings value beyond standards
imposed elsewhere, and (c) whether hazards identified through their SMS
will qualify as items of concern. Commenters also requested the FAA
state that the SMS rule will not alter existing State laws regarding
standards of care or duty of care.
Commenters from both the 2016 and 2021 comment periods requested
that the FAA clarify its oversight approach in either the final rule
preamble or the regulatory text.
The FAA does not intend for the implementation of SMS at an airport
to implicate regulations issued by other agencies. In some instances,
airport SMS may complement compliance with other regulations (such as
OSHA, NEPA). An airport SMS is the next critical step in the FAA's
ongoing transition to a more streamlined and performance-based
regulatory framework for airports. Airport SMS will evolve the FAA's
oversight processes so FAA involvement targets the areas of highest
safety risk. For airports with a fully implemented SMS
[[Page 11662]]
and that have a consistent history of compliance with the requirements
of part 139, the FAA will transition to a system-based inspection
allowing an inspector to focus on areas of greater risk. As a
consistent history of compliance under SMS develops, the FAA will have
data to support modifying the duration of time between an airport's
periodic inspections. The FAA will continue to use a traditional
approach and cycle for inspections at airports without a SMS, with
higher risks, or a history of non-compliance. The FAA retains the
ability to use a traditional inspection cycle for airports with a fully
implemented SMS when deemed necessary (e.g., increase in number of
discrepancies with part 139 requirements).
A comment received in 2021 emphasized that the FAA should be
flexible and less prescriptive in its approach. Another comment
received in 2021 emphasized that the FAA should provide training and
resources for SMS education. The FAA acknowledges that shifting from a
prescriptive to performance-based regulation and systems-based
oversight will take time and require educating and guiding both FAA
inspectors and airport operators. The FAA will update FAA inspector
guidance, provide training to the FAA inspectors on the requirements of
this final rule, and provide outreach to the industry regarding the
final rule requirements.
The FAA received comments during both the 2016 and 2021 comment
periods asking the FAA to: (a) collaborate with airports with existing
voluntary SMS and other stakeholders to develop SMS oversight
guidelines based on lessons learned that explicitly define the systems-
based approach and how it changes inspector responsibilities and
activities; (b) commit to a timetable and process for training its
inspectors on the new approach and clarify that no SMS inspections will
take place until inspectors have been trained; (c) cross train all part
121 and part 139 inspectors in the respective SMS requirements; and (d)
invite airport industry representatives to participate in the training
of FAA inspectors.
The FAA does not normally invite industry representatives to
participate in the training of FAA inspectors and does not believe SMS
requirements would cause it to change this position. While the FAA does
not agree that part 139 and part 121 inspectors require cross-training
in the respective SMS requirements, ARP and AVS will identify the
various SMS requirements and areas of connectivity in Agency materials.
The SMS final rule will not alter the responsibilities of the FAA's
regional inspector staff. Like other part 139 related activities, the
regional inspector staff is responsible for reviewing, approving,
accepting, and inspecting the airport's SMS documents and program. As
discussed in the SNPRM, FAA Headquarters staff will supplement these
activities--by providing support and guidance to our regional
inspection staff--to ensure national consistency and timely program
implementation. Questions regarding federal financial assistance for
SMS related activities should be directed to the appropriate FAA
Regional Office or Airport District Office personnel.
(4) Safety Risk Management
The SNPRM proposed minimum requirements for SRM, including
establishing a systematic process for analyzing hazards and related
risks, using a standard five-step process. As part of the SRM
component, the SNPRM also included standard documentation and record
retention requirements.
The FAA was asked to re-evaluate the requirement to handle all
hazards through the five-step process, in light of a comment that
certificate holders should have the flexibility to determine which
hazards require analysis using the five-step process and which hazards
only need review and mitigation.
Commenters questioned (a) the FAA inspector's role in the risk
determination process, and (b) whether the FAA will be able to overrule
a certificate holder's determination, even when safety standards are
met.
The SNPRM did not propose to require the use of a predictive risk
matrix for hazard assessment, but suggested its use as an effective
method to analyze and prioritize risk. The FAA was asked whether a
specific matrix must be used, or if airport operators will be allowed
to modify the risk matrix included in the NPRM to better fit the
airport's needs and goals. While encouraged, this final rule does not
require the use of a predictive risk matrix.
Commenters from both the 2016 and 2021 comment periods: (a) noted
that many large hub and international airports have existing,
comprehensive safety and risk management programs; (b) requested the
FAA explain how these existing programs will be integrated into SMS
processes; and (c) recommended that the FAA accept or provide credit to
airports with existing processes similar to those outlined in the
proposal.
This final rule provides airport operators flexibility in how they
resolve safety issues and hazards. It does not require certificate
holders to use the five-step process to address all safety concerns.
Instead, the regulatory text requires certificate holders to use the
five-step process to analyze ``hazards.'' The FAA acknowledges that not
all reports through the airports' safety reporting system or other
sources constitute hazards. Therefore, certificate holders would only
need to use the systematic analysis for identified hazards.
Nothing in this final rule requires consensus decision making.
While the FAA encourages certificate holders to work with affected
stakeholders, it is not a requirement of this final rule. If the
airport operator develops a DSR Plan, the FAA expects it to identify
when and how the airport and tenant will work together to analyze and
resolve joint safety issues. In most cases, the certificate holder is
also the airport owner and, as owner, has ultimate control over their
airport's decisions. Similarly, the FAA expects that whenever the
certificate holder is an entity other than the airport owner, the
agreement allowing the certificate holder to operate the airport should
have adequate controls and provisions (i.e. sufficient authority and
resources) to allow them to make all pertinent decisions to enable
compliance with part 139 and the FAA-approved ACM (the FAA notes that
this scope of oversight is similar to existing expectations under part
139 and the FAA-approved ACM). In extreme cases, if the airport
identifies hazard mitigations under the SRM process that a tenant is
unwilling to implement, an airport might be expected to restrict or
break its contract and cease operations with the tenant to ensure that
the hazardous condition does not continue. Regardless of the existence
of any agreement, policy, or arrangement, and regardless of the
decision-making process or determinations made under them, the
certificate holder remains solely responsible before the FAA for full
compliance with the SMS requirements of this final rule.
Notwithstanding, the FAA committed in the NPRM and SNPRM to not second
guess certificate holder decisions under SRM processes, and the FAA's
position has not changed in this final rule. The only time the FAA will
weigh in is if the certificate holder uses SRM processes to circumvent
regulation or standards.
The certificate holder may identify in its FAA-approved
Implementation Plan any existing programs, policies, or activities it
plans to use as a means of
[[Page 11663]]
compliance with the rule. Where an existing program is used as a
foundation, the certificate holder will explain what additional actions
will be put in place to ensure the programs fully meet the intent of
the requirement. As long as existing safety and risk management
programs meet the requirements of this final rule, they can be used
``as is'' to comply. However, if there are gaps between the existing
program and this final rule requirements, the certificate holder would
still be required to comply with this final rule and must identify in
its Implementation Plan how it will address those gaps prior to the
full implementation deadline.
In the SNPRM, the FAA acknowledged that the definition of ``risk
mitigation'' did not harmonize with part 5's ``risk control''
terminology. The FAA's conclusion was that the term ``mitigate'' was
straightforward and aligned with other guidance certificate holders
have received related to FAA SMS initiatives. While this final rule
retains the definition of ``risk mitigation,'' it expands the
definition of ``safety risk management'' and ``safety assurance'' to
incorporate the term ``control'' or ``controlling'' to provide better
harmonization with part 5.
A commenter from the 2021 comment period recommended that the FAA
create an FAA ``Airport Safety'' web page, similar in format to the FAA
web page ``Airline Safety.'' Once the rule is published, the Office of
Airports intends to update the public facing web page to contain
current and relevant part 139 SMS material.
(5) Record Retention
Under the SRM component, the FAA proposed to require a certificate
holder to develop processes to identify hazards that may impact the
airport's operations. The certificate holder will use these processes
to analyze those hazards and risks and retain any documentation
developed through these processes to assist in trend and root cause
analysis. The FAA proposed to require a certificate holder to retain
records associated with SRM processes for the longer of (a) 36 months
after the risk analysis of identified hazards has been completed or (b)
12 months after required mitigations have been implemented. Under the
Safety Promotion component (see Sec. 139.402(d)), the FAA proposed to
require certificate holders to also retain training records and hazard
awareness orientation briefing materials. Commenters asked the FAA to
clarify how long a certificate holder should retain data.
The record retention requirements proposed in the NPRM and SNPRM
sync with existing record retention requirements under part 139. In
this case, the FAA found it more useful to apply existing part 139
retention standards for ease of document retention instead of syncing
requirements with part 5. A certificate holder may always choose to
retain records for longer, especially where State laws require longer
retention. This final rule provides the minimum requirement for
compliance.
(6) SMS Manual Updates
While drafting this final rule, the FAA recognized some confusion
regarding the requirement in Sec. 139.401(g) to provide the FAA with
copies of any changes to the Airport SMS Manual, on an annual basis.
This final rule retains this provision but adds the caveat ``or upon
FAA request.'' One commenter from the 2021 comment period incorrectly
interpreted the SNPRM as requiring FAA approval of SMS manuals, and
noted that such approval will impede SMS development.
Unlike the ACM, the SMS Manual is not approved; rather, it is
accepted by the FAA. The certificate holder could implement new
provisions in the SMS Manual without previously sharing those changes
with the FAA, unlike the requirement for changes to the FAA-approved
ACM. Therefore, regulatory text was necessary to ensure that the FAA
has the most up-to-date version of the SMS Manual prior to conducting
the annual certification inspection, or during any other surveillance
activities.
If no changes have been made to the SMS Manual over the past year
(or upon FAA request), the certificate holder can simply send an
electronic or written message to the FAA stating no changes have been
made.
(7) Guidance and Work Groups
The FAA received numerous comments during both the 2016 and 2021
comment periods from certificate holders and associations, requesting
clarification on how the FAA would (a) update existing draft guidance
with publication of this final rule, and (b) provide timely updates to
guidance, during implementation.
The FAA received comments during the 2021 comment period inquiring
about industry participation in development of the final rule. The FAA
provided industry an opportunity to participate in the development of
the final rule through the 2016 and 2021 comment periods, in accordance
with the Administrative Procedure Act.
AC 150/5200-37A has been updated to address requirements contained
in this final rule and is being published simultaneously with this
final rule. All comments related to AC material were catalogued and
adjudicated during the update to AC 150/5200-37A. Industry was given
additional time to submit comments on the AC and the FAA received
detailed comments within the comment period. Regarding comments
received during the 2016 and 2021 comment periods on guidance updates,
the FAA has several existing methods for disseminating timely updates
including Policy Guidance Letters and Cert Alerts that could be used to
disseminate implementation and oversight guidance as the programs
evolve.
One commenter from the 2021 comment period recommended the addition
of an awards and recognition section in the FAA's guidance to provide
existing examples of SMS, in an effort to encourage the growth of SMS.
The FAA encourages certificate holders to explore means of developing
their SMS safety culture at their airport and currently considers the
available guidance publications sufficient.
IV. Regulatory Notices and Analyses
Changes to Federal regulations must undergo several economic
analyses. First, Executive Order 12866 and Executive Order 13563 direct
that each Federal agency shall propose or adopt a regulation only upon
a reasoned determination that the benefits of the intended regulation
justify its costs. Second, the Regulatory Flexibility Act of 1980 (Pub.
L. 96-354) requires agencies to analyze the economic impact of
regulatory changes on small entities. Third, the Trade Agreements Act
(Pub. L. 96-39 as amended) prohibits agencies from setting standards
that create unnecessary obstacles to the foreign commerce of the United
States. In developing U.S. standards, the Trade Agreements Act requires
agencies to consider international standards and, where appropriate,
that they be the basis of U.S. standards. Fourth, the Unfunded Mandates
Reform Act of 1995 (Pub. L. 104-4) requires agencies to prepare a
written assessment of the costs, benefits, and other effects of
proposed or final rules that include a Federal mandate likely to result
in the expenditure by State, local, or tribal governments, in the
aggregate, or by the private sector, of $100 million or more (adjusted
annually for inflation) in any one year. The FAA has provided a more
detailed Regulatory Impact Analysis of this final rule in the docket of
this rulemaking. This portion
[[Page 11664]]
of the preamble summarizes the FAA's analysis of the economic impacts
of this rule.
In conducting these analyses, the FAA has determined that this
final rule: (1) has benefits that justify its costs; (2) is not an
economically ``significant regulatory action'' as defined in section
3(f) of Executive Order 12866; (3) is ``significant'' as defined in
DOT's Regulatory Policies and Procedures; (4) will have a significant
economic impact on a substantial number of small entities; (5) will not
create unnecessary obstacles to the foreign commerce of the United
States; and (6) will not impose an unfunded mandate on state, local, or
tribal governments, or on the private sector by exceeding the threshold
identified above. These analyses are summarized below.
A. Regulatory Evaluation
Total Benefits and Costs of This Rule
The rule requires a SMS at certain U.S. airports in an effort to
improve airport safety, complement existing airport safety regulations
in part 139, and meet the intent of the ICAO standard.
The goal of this rule is to improve the safety of the airfield
environment (including movement and non-movement areas) by providing an
airport with decision-making tools to plan, organize, direct, and
control its everyday activities in a manner that enhances safety. Table
4 shows benefits and costs over ten years. Table 4 also includes the
FAA's estimated cost savings of changing the traditional inspection
cycle at airports with a fully implemented SMS. The benefits discussed
below are only achievable through airports implementing mitigation
measures identified through their SMS processes; however, the
regulatory evaluation does not quantify the potential costs to
implement these mitigations. There are no available empirical
retrospective analyses of existing SMS programs that the FAA could
leverage to quantitatively estimate the benefits related to the
potential effectiveness of airport SMSs at mitigating accidents and
incidents. Transport Canada's initial 2019 report on airport SMS
implementation notes, in part, ``we were not able to quantify the
extent of SMS's contribution to aviation safety,'' although it does
discuss perceived qualitative benefits, particularly at larger
airports.\19\ Similarly, not enough time has elapsed since the
implementation of Part 121 SMS to measure the potential effectiveness
of SMS for air carriers, particularly in light of disruptions to air
travel due to the COVID-19 pandemic. As a result, to estimate some
potential benefits related to accident and incident mitigation, FAA
used a panel of subject matter experts to assign quantitative
probabilities to the mitigation effectiveness in each selected event.
As described in further detail in the Regulatory Impact Analysis, of
the 1,840 accidents and incidents used for this analysis, the FAA
assumed a 20-39 percent chance of preventing similar accidents or
incidents for 81 percent of these events through a SMS, and for the
other 19 percent of events the FAA assumed between a 40-59 percent
chance of effective mitigation.
---------------------------------------------------------------------------
\19\ (Evaluation summary--Evaluation of Safety Management
Systems in Civil Aviation--July 2019 (canada.ca)).
Table 4--Comparison of Costs and Benefits Over 10 Years
[Millions of 2020 dollars]
----------------------------------------------------------------------------------------------------------------
Present value Annualized Present value Annualized
(3%) (3%) (7%) (7%)
----------------------------------------------------------------------------------------------------------------
Benefits........................................ $199.2 $23.4 $144.1 $20.5
Costs........................................... 179.8 21.1 139.0 19.8
Cost Savings.................................... 3.1 0.4 2.2 0.3
Net Benefits (includes mitigation benefits, but 22.5 2.6 7.3 1.0
excludes mitigation costs).....................
----------------------------------------------------------------------------------------------------------------
Note: The sum of the individual items may not equal totals due to rounding.
Over the ten-year period of analysis, the estimated present value
benefit of the final rule is $144.1 million at a seven percent discount
rate with an annualized benefit of $20.5 million. At a three percent
discount rate, the present value benefit is $199.2 million with an
annualized benefit of $23.4 million. Excluding mitigation costs, the
estimated present value cost of the final rule is $139 million at a
seven percent discount rate with an annualized cost of $19.8 million.
At a three percent discount rate, the cost in present value is $179.8
million with an annualized cost of $21.1 million. The cost savings, at
a seven percent discount rate, is $2.2 million with an annualized cost
savings of $0.3 million and $3.1 million, at a three percent discount
rate, with annualized cost savings of $0.4 million.
Who is potentially affected by this rule?
After updating the list to account for the new data sources, there
are 191 applicable airports (as of February 2017). Part 139
certificated airports that meet one or more of the following triggering
criteria: (a) classified as a small, medium, or large hub airport based
on passenger data extracted from the Air Carrier Activity Information
System, (b) has a three-year rolling average of 100,000 or more total
annual operations \20\ or (c) serves any international operation other
than general aviation. Table 5 below provides an estimated number of
impacted airports by the three different triggering criteria.
---------------------------------------------------------------------------
\20\ In the context of the operations trigger, the term
operations means the sum of all arrivals and departures.
Table 5--Estimated Number of Affected Airports by Category
------------------------------------------------------------------------
Number of
Airport categories airports
------------------------------------------------------------------------
Large, Medium, and Small Hub................................ 132
>100,000 Operations......................................... 27
International Traffic....................................... 32
------------------------------------------------------------------------
General Assumptions:
<bullet> Cost and benefit estimates are in 2020 dollars.
<bullet> Costs and benefits are estimated over a ten-year period.
<bullet> Costs to airports begin to accrue in year 1.
<bullet> Benefits of SMS begin to accrue in year 5 or year 6 after
full implementation.
<bullet> The present value discount rates of seven percent and
three percent are
[[Page 11665]]
applied per Office of Management and Budget guidance.\21\
---------------------------------------------------------------------------
\21\ <a href="https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/circulars/A4/a-4.pdf">https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/circulars/A4/a-4.pdf</a>.
---------------------------------------------------------------------------
Benefits of This Rule
The objective of SMS is to proactively manage safety, identify
potential hazards or risks, and implement measures that mitigate those
risks. The FAA envisions airports being able to use all of the
components of SMS to enhance the airport's ability to identify safety
issues and spot trends before they result in a near-miss, incident, or
accident. Anecdotally, based on the FAA Airport SMS Pilot Study,
airports indicate benefits from increased communication and reporting
that are all fundamental components of SMS. These efforts are expected
to prevent accidents and incidents. Over the ten-year period of
analysis, the benefits of the rule are estimated to be $144.1 million
at seven percent present value or $20.5 million annualized. At a 3
percent discount rate, the benefit in present value is $199.2 million
or $23.4 million annualized.
Costs of This Rule
The rule requires certain part 139 certificated airports to
establish a SMS based on the four components: (i) safety policy; (ii)
safety risk management (SRM); (iii) safety assurance; and (iv) safety
promotion. These components include costs to document an airport's
Implementation Plan and SMS manual, staffing, equipment/material,
training, update training records, and recording potential hazards over
ten years. The costs vary based on the size of the airport. The total
cost, over 10 years, in present value at a seven percent discount rate
is $139 million or $19.8 million annualized. At a three percent
discount rate, the cost in present value is $179.8 million or $21.1
million annualized.
Alternatives Considered
The FAA analyzed the following applicability alternatives in the
SNPRM:
1. All part 139 airports;
2. Airport operators holding a Class I AOC;
3. Certificated international airports;
4. Large, medium, and small hub airports and certificated airports
with more than 100,000 total annual operations; and
5. Large, Medium, and Small hub airports, certificated airports
with more than 100,000 total annual operations, and certificated
international airports.
The SNPRM identified the last alternative as the preferred
alternative. Upon receiving comments on how affected airports were
selected, the FAA reviewed the selection process and refined some of
the triggering criteria. This final rule will continue to apply to
large, medium, and small hub airports, certificated airports with more
than 100,000 total annual operations, and certificated airports that
serve any international operation other than general aviation. The
change in this final rule further reduces the number of applicable
airports from approximately 265 impacted airports to 191.
B. Regulatory Flexibility Act
The Regulatory Flexibility Act of 1980 (Pub. L. 96-354) (RFA)
establishes ``as a principle of regulatory issuance that agencies shall
endeavor, consistent with the objectives of the rule and of applicable
statutes, to fit regulatory and informational requirements to the scale
of the businesses, organizations, and governmental jurisdictions
subject to regulation. To achieve this principle, agencies are required
to solicit and consider flexible regulatory proposals and to explain
the rationale for their actions to assure that such proposals are given
serious consideration.'' The RFA covers a wide range of small entities,
including small businesses, not-for-profit organizations, and small
governmental jurisdictions.
Section 604 of the Act requires agencies to prepare a final
regulatory flexibility analysis (FRFA) describing the impact of final
rules on small entities. After preparing the FRFA, the FAA estimates
that a substantial number of small-entity airports will be affected by
the final rule and does not certify that there will not be a
significant effect on a substantial number of small entities.
(i) A Statement of the Need for, and Objectives of, the Rule
The FAA remains committed to continuously improving safety in air
transportation. The FAA believes that a SMS can address potential
safety gaps that are not completely eliminated through effective FAA
regulations and technical operating standards. The certificate holder
best understands its own operating environment and, therefore, is in
the best position to address safety issues through improved management
practices.
Both the NTSB and ICAO support SMS as a means to prevent future
accidents and improve safety. The NTSB has cited organizational factors
contributing to aviation accidents and has recommended SMS for several
sectors of the aviation industry, including aircraft operators. The FAA
has concluded those same organizational factors and benefits of SMS
apply across the aviation industry, including airports. In 2001, ICAO
adopted a standard in Annex 14 that all member states establish SMS
requirements for airport operators hosting international operations.
The FAA supports conformity of U.S. aviation safety regulations with
ICAO standards and recommended practices.
(ii) A Statement of the Significant Issues Raised by the Public
Comments in Response to the Initial Regulatory Flexibility Analysis, a
Statement of the Assessment of the Agency of Such Issues, and a
Statement of Any Changes Made in the Proposed Rule as a Result of Such
Comments
Many commenters reported an additional burden on small airports
that they believe was not included on the Initial Regulatory
Evaluation.
FAA Response: The FAA reevaluated the impact by class to assess the
burden on smaller airports. While the FAA originally believed that
Class II, III, IV certificate holders would gain benefits similar to
Class I certificate holders from formalized hazard identification, risk
analysis, training and communications processes; the cost impact is
substantial on these certificate holders. Based on this analysis the
FAA changed the scope of this final rule to affect a smaller population
of small airports. The change in this requirement still advances the
FAA's safety goals by targeting airports with over 90 percent of all
passenger enplanements.
Additionally, SMS is scalable. Airport characteristics, such as
size, organization and governance structures, type of air carrier
operations, and number of operations, are all factors that affect a
certificate holder's version of SMS. This final rule further clarifies
the scalability of SMS, which the FAA believes mitigates the burden on
smaller airports and this final rule also increases the time for
implementation.
A commenter disputes the definition of a small airport by operation
and class.
FAA Response: The FAA maintains that the number of operations and
class help determine the size of an airport. Effectively all non-Class
I airports are treated as small. The FAA agrees that a substantial
number of small-entity airports will be affected. Many of the smaller
airport employees have broad responsibilities--an airport employee
could cut the grass, remove foreign-object debris, and drive the fire
truck. The classification of small in the regulatory evaluation was
done based on operation and size. The regulatory
[[Page 11666]]
flexibility analysis uses the SBA definition.
(iii) The Response of the Agency to Any Comments Filed by the Chief
Counsel for Advocacy of the Small Business Administration in Response
to the Proposed Rule, and a Detailed Statement of Any Change Made to
the Proposed Rule in This Final Rule as a Result of the Comments
The FAA did not receive comments to the SNPRM from the Small
Business Administration.
(iv) A Description of an Estimate of the Number of Small Entities to
Which the Rule Will Apply or an Explanation of Why No Such Estimate Is
Available
There are an estimated 191 part 139 certificated airports impacted
by the rule. From the 191 airports, the FAA identified at least 32
airports that meet the Small Business Administration (SBA) definition
of small governmental jurisdictions such as governments of cities,
counties, towns, townships, villages, school districts, or special
districts with populations of less than 50,000.\22\ The FAA considers
this a substantial number of small entities. The 2015 revenue, for
these airports, ranges from about $123 thousand to $41.0 million. Using
the preceding information, the FAA estimates that their ratio of
annualized costs to annual revenues is higher than 2 percent for
several of the airports, as shown in Table 6 below.
---------------------------------------------------------------------------
\22\ <a href="https://www.sba.gov/sites/default/files/advocacy/How-to-Comply-with-the-RFA-WEB.pdf">https://www.sba.gov/sites/default/files/advocacy/How-to-Comply-with-the-RFA-WEB.pdf</a>.
\23\ Data retrieved 10/4/2017 from <a href="https://data.census.gov/cedsci/table?tid=GOVSTIMESERIES.CG00ORG01">https://data.census.gov/cedsci/table?tid=GOVSTIMESERIES.CG00ORG01</a>.
\24\ Revenue data from Compliance Activity Tracking System
(CATS) accessed on 10/5/2017 from <a href="https://cats.airports.faa.gov/">https://cats.airports.faa.gov/</a>.
\25\ Annualized using a capital recovery factor of 0.14238, over
10 years, using a 7 percent rate of interest.
Table 6--Breakout of Airports Meeting SBA Definition
--------------------------------------------------------------------------------------------------------------------------------------------------------
2015 Total
Number Airport ident. New part 139 Population 2015 NPIAS 2015 Revenue \24\ annualized Ratio (%)
classification estimate \23\ classification costs \25\
--------------------------------------------------------------------------------------------------------------------------------------------------------
1........... ACK................ Class I............ 10,858 Non Hub........... $7,744,371 $85,175 1.10.
2........... ACY................ Class I............ 39,091 Small Hub......... 12,012,655 85,175 0.71.
3........... BGM................ Class I............ 46,058 Non Hub........... 3,185,093 85,175 2.67.
4........... BGR................ Class I............ 32,309 Non Hub........... 12,036,215 85,175 0.71.
5........... BTV................ Class I............ 42,477 Small Hub......... 16,639,848 85,175 0.51.
6........... BZN................ Class I............ 43,399 Small Hub......... 8,918,137 85,175 0.96.
7........... CIU................ Class I............ 13,787 Non Hub........... 1,031,955 85,175 8.25.
8........... COE................ Class IV........... 49,131 GA................ not available 85,175 not available.
9........... DRT................ Class I............ 36,000 Non Hub........... not available 85,175 not available.
10.......... ECP................ Class I............ 37,495 None.............. 10,320,416 85,175 0.83.
11.......... EGE................ Class I............ 6,840 Non Hub........... 4,860,347 85,175 1.75.
12.......... ELM................ Class I............ 28,291 Non Hub........... 3,002,954 85,175 2.84.
13.......... FAI................ Class I............ 32,453 Small Hub......... 9,971,203 85,175 0.85.
14.......... FRG................ Class IV........... 8,685 Reliever.......... not available 85,175 not available.
15.......... GCN................ Class I............ 585 Non Hub........... 1,359,481 85,175 6.27.
16.......... GSP................ Class I............ 28,340 Small Hub......... 8,309,709 85,175 1.03.
17.......... IAG................ Class I............ 48,888 Reliever.......... 2,559,262 85,175 3.33.
18.......... INL................ Class I............ 6,172 Non Hub........... 123,838 85,175 68.78.
19.......... JNU................ Class I............ 32,603 Small Hub......... 6,224,563 85,175 1.37.
20.......... KTN................ Class I............ 8,176 Non Hub........... not available 85,175 not available.
21.......... MDT................ Class I............ 49,070 Small Hub......... 26,150,106 85,175 0.33.
22.......... MLI................ Class I............ 42,636 Small Hub......... 11,064,089 85,175 0.77.
23.......... MRY................ Class I............ 28,394 Non Hub........... 8,468,100 85,175 1.01.
24.......... MYR................ Class I............ 31,027 Small Hub......... 18,799,347 85,175 0.45.
25.......... PGD................ Class I............ 18,155 Non Hub........... 7,048,500 85,175 1.21.
26.......... PRC................ Class I............ 41,603 Comm Serv......... 1,448,110 85,175 5.88.
27.......... PSP................ Class I............ 47,201 Small Hub......... 19,063,440 85,175 0.45.
28.......... SGJ................ Class I............ 14,061 Non Hub........... 3,657,899 85,175 2.33.
29.......... TEB................ Class IV........... 69 Reliever.......... 41,039,253 85,175 0.21.
30.......... TIX................ Class IV........... 45,278 GA................ not available 85,175 not available.
31.......... TRI................ Class I............ 26,651 Non Hub........... 6,583,279 85,175 1.29.
32.......... VRB................ Class IV........... 16,343 GA................ not available 85,175 not available.
--------------------------------------------------------------------------------------------------------------------------------------------------------
(v) A description of the Projected Reporting, Recordkeeping and Other
Compliance Requirements of the Rule, Including an Estimate of the
Classes of Small Entities Which Will Be Subject to the Requirement and
the Type of Professional Skills Necessary for Preparation of the Report
or Record
[[Page 11667]]
Table 7--Small Airport
[Costs over 10 years]
----------------------------------------------------------------------------------------------------------------
Total cost per
Small airport costs Total hours airport Description
----------------------------------------------------------------------------------------------------------------
Manual & Implementation Plan (One-time).... N/A $138,150 One-time cost of $138,150 per small
airport.
Manual Revisions (Annually)................ 72 1,990 Clerical Employee Wage x 12 hours x
6 years.
Staffing................................... N/A 774,918 129,159 staffing cost per airport x
6 years.
Initial Software (One-time)................ N/A 26,074 Initial Software Cost of $26,074
per airport.
Recurrent Software (Annually).............. N/A 32,595 Recurring Software Cost of $6519
per airport x 5 years.
Initial Training fee (One-time)............ N/A 810 1 Manager, 1 Maintenance Person, 1
Clerical x $270 training fee per
person.
Initial Training Time (One-time)........... 9 462 1 Manager, 1 Maintenance Person, 1
Clerical x 3 hours for each.
Recurrent Training Fee (Biennial).......... NA 540 1 Manager, 1 Maintenance Person, 1
Clerical x $90 training fee per
person x 2 years.
Recurrent Training Time (Biennial)......... 9 462 1 Manager, 1 Maintenance Person, 1
Clerical x 1.5 hours for each x 2
years.
Hazard Awareness Orientation (One-time).... 8 692 SMS Manager x 8 hours.
Hazard Awareness Orientation (Biennial).... 4 346 SMS Manager x 2 hours to update
awareness
[…truncated; see source link]Indexed from Federal Register on February 23, 2023.
This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.