[Federal Register Volume 81, Number 135 (Thursday, July 14, 2016)]
[Proposed Rules]
[Pages 45871-45909]
[FR Doc No: 2016-16596]

Vol. 81

Thursday,

No. 135

July 14, 2016

Part V

Department of Transportation

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Federal Aviation Administration

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14 CFR Part 139

Safety Management System for Certificated Airports; Proposed Rules

Federal Register / Vol. 81 , No. 135 / Thursday, July 14, 2016 /
Proposed Rules

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DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration

14 CFR Part 139

[Docket No.: FAA-2010-0997; Notice No. 16-04]
RIN 2120-AJ38

Safety Management System for Certificated Airports

AGENCY: Federal Aviation Administration (FAA), DOT.

ACTION: Supplemental notice of proposed rulemaking (SNPRM).

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SUMMARY: On October 7, 2010, the FAA published in the Federal Register
a notice of proposed rulemaking (NPRM) to require certificate holders
to establish a safety management system (SMS) for the entire airfield
environment, including movement and non-movement areas, to improve
safety at airports hosting air carrier operations. After reviewing the
comments received and conducting further internal analysis, the FAA is
amending that proposal. The FAA now proposes to require an SMS only for
a certificated airport classified as a small, medium, or large hub
airport in the National Plan of Integrated Airport Systems; serving
international air traffic; or having more than 100,000 total annual
operations. The FAA is also proposing changes that would extend the
implementation period from 18 to 24 months; require submission of an
implementation plan within 12 months instead of 6 months of the
effective date of the final rule; modify the training requirements;
ensure consistency among various FAA SMS initiatives, and reduce the
implementation burden.

DATES:  Send your comments on or before September 12, 2016.

ADDRESSES: You may send comments identified by Docket Number FAA-2010-
0997 using any of the following methods:
     Federal eRulemaking Portal: Go to http://www.regulations.gov and follow the online instructions for sending your
comments electronically.
     Mail: Send comments to Docket Operations, M-30; U.S.
Department of Transportation, 1200 New Jersey Avenue SE., Room W12-140,
West Building Ground Floor, Washington, DC 20590-0001.
     Hand Delivery or Courier: Bring comments to Docket
Operations in Room W12-140 of the West Building Ground Floor at 1200
New Jersey Avenue SE., Washington, DC, between 9 a.m. and 5 p.m.,
Monday through Friday, except Federal holidays.
     Fax: Fax comments to Docket Operations at<PHONE_NUMBER>.
    For more information on the rulemaking process, see the
SUPPLEMENTARY INFORMATION section of this document.
    Privacy: In accordance with 5 U.S.C. 553(c), the Department of
Transportation (DOT) solicits comments from the public to better inform
its rulemaking process. DOT posts these comments, without edit,
including any personal information the commenter provides, to
www.regulations.gov, as described in the system of records notice (DOT/
ALL-14 FDMS), which can be reviewed at www.dot.gov/privacy.
    Docket: To read background documents or comments received, go to
http://www.regulations.gov and follow the online instructions for
accessing the docket. Or, go to the Docket Management Facility in Room
W12-140 of the West Building Ground Floor at 1200 New Jersey Avenue
SE., Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday,
except Federal holidays.

FOR FURTHER INFORMATION CONTACT: For technical questions concerning
this proposed rule, contact Keri Lyons, Office of Airports Safety and
Standards, Airport Safety and Operations Division, AAS-300, Federal
Aviation Administration, 800 Independence Avenue SW., Washington, DC
20591; telephone<PHONE_NUMBER>; email<EMAIL_ADDRESS>
SUPPLEMENTARY INFORMATION: Later in this preamble under the Additional
Information section, we discuss how you can comment on this proposal
and how we will handle your comments. This discussion includes related
information about the docket, privacy, and the handling of proprietary
or confidential business information. We also discuss how you can get a
copy of this proposal and related rulemaking documents.

Authority for This Rulemaking

    The FAA's authority to issue rules regarding aviation safety is
found in Title 49 of the United States Code. Subtitle I, section 106
describes the authority of the FAA Administrator. Subtitle VII,
Aviation Programs, describes in more detail the scope of the agency's
authority.
    The FAA is proposing this rulemaking under the authority described
in Subtitle VII, part A, subpart III, section 44706, ``Airport
operating certificates.'' Under that section, Congress charges the FAA
with issuing airport operating certificates (AOC) that contain terms
that the Administrator finds necessary to ensure safety in air
transportation. This proposed rule is within the scope of that
authority because it requires certain certificated airports to develop
and maintain an SMS. The development and implementation of an SMS
ensures safety in air transportation by assisting these airports in
proactively identifying and mitigating safety hazards.

I. Executive Summary

A. Purpose of This SNPRM

    The increasing demands on the U.S. air transportation system,
including additional air traffic and surface operations and airport
construction, have the potential to heighten risk to operating
aircraft. Historically, the approach to aviation safety was based on
the reactive analysis of past accidents and the introduction of
corrective actions to prevent the recurrence of those events. An SMS,
however, helps airport operators to proactively identify potential
hazards in the operating environment, analyze the risks of those
hazards, and mitigate those risks to prevent an accident or incident.
In its most general form, SMS is a set of decision making tools that an
airport operator would use to plan, organize, direct, and control its
everyday activities in a manner that enhances safety.
    On October 7, 2010, the FAA published an NPRM entitled ``Safety
Management System for Certificated Airports'' (75 FR 62008). In the
NPRM, the FAA proposed to require all 14 Code of Federal Regulations
(CFR) part 139 certificate holders to establish an SMS to improve the
safety of their aviation-related activities.
    The FAA received 65 comments in response to the NPRM from a variety
of commenters. Because of the complexity of the issues and concerns
raised by the commenters, the FAA began to reevaluate whether
deployment of SMS at all certificated airports was the most effective
approach. As part of this process, the FAA looked at applicability for
various categories of certificate holders to determine which option
would maximize safety benefits in the least burdensome manner. While
the FAA is proposing a preferred alternative in this SNPRM, the FAA
requests comments on the other applicability alternatives discussed in
this SNPRM.
    The preferred alternative harmonizes with the intent of ICAO SMS
standards by including all certificated airports accepting
international operations. The FAA supports conformity of U.S. aviation
safety regulations with ICAO standards and recommended practices and
believes the SNPRM meets the

intent of the ICAO standard in a way that complements existing airport
safety regulations in part 139.
    The FAA continues to believe that an SMS can address potential
safety gaps through improved management practices.\1\ SMS's proactive
emphasis on hazard identification and mitigation, and on communication
of safety issues, would provide certificate holders with robust tools
to improve safety. While the comments generated some changes to the
proposal in this document, most of the proposed core elements of the
SMS program remain in this SNPRM.
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    \1\ Additional information regarding the purpose of the proposed
SMS requirement can be found in the ``Background'' section of the
NPRM (75 FR 62008).
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B. Summary of the Major Provisions of the SNPRM

    The major change in this SNPRM is to the proposed applicability.
Rather than requiring an SMS at all certificated airports, the FAA now
proposes to require an SMS be developed, implemented, maintained, and
adhered to at any certificated airport:
     Classified as a small, medium, or large hub \2\ airport in
the National Plan of Integrated Airport Systems (NPIAS); \3\
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    \2\ The FAA's use of the term hub airport is different than that
of airlines, which use the term to denote an airport with
significant connecting traffic by one or more carriers. As defined
in 49 U.S.C. 47102, large hubs are those airports that account for 1
percent or more of total U.S. passenger boardings (U.S. passenger
enplanements); medium hubs are airports that account for between
0.25 percent and 1 percent of total U.S. passenger boardings; and
small hubs are airports that enplane 0.05 percent to 0.25 percent of
total U.S. passenger boardings.
    \3\ The Secretary of Transportation is required to maintain a
plan for developing public-use airports that are important to the
national transportation system. The NPIAS identifies the types of
projects and estimated costs eligible for federal financial
assistance necessary to provide a safe, efficient, and integrated
system of airports. The FAA Office of Airports maintains the NPIAS
and publishes a Report to Congress every other year. Current and
past reports are available at http://www.faa.gov/airports/planning_capacity/npias/.
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     Identified by the U.S. Customs and Border Protection (CBP)
as a port of entry (under 19 CFR 101.3), designated international
airport (under 19 CFR 122.13), landing rights airport (under 19 CFR
122.14), or user fee airport (19 CFR 122.14) (collectively referred to
throughout this proposal as ``international airports''); or
     Identified as having more than 100,000 total annual
operations (according to best available data).
    Additionally, the FAA proposes extending the implementation period
from 18 to 24 months, requiring submission of an implementation plan
within 12 months instead of 6 months of the effective date of the final
rule, and changes to the training requirements. Other changes have also
been made to ensure consistency among various FAA SMS initiatives and
to reduce the implementation burden.
    Throughout the document, the FAA requests specific comment on the
following issues:
     What other methods may be available to accurately account
for and determine applicability based on annual operations or whether
the FAA should use a different baseline for determining applicability;
     What other methods may be available to identify
international airports;
     What types of data or other information certificated
airports could provide under a national reporting database;
     Whether the estimates of the average pool of employees
needing comprehensive SMS training is an accurate average across all
airports affected by the proposal;
     What types of job roles would require comprehensive SMS
training; and
     Whether the implementation of the proposed accountable
executive definition is feasible.

C. Summary of the Costs and Benefits

    This proposed rule would require certain certificate holders under
part 139 to establish an SMS. SMS is a set of tools designed to help
airports effectively integrate formal risk control procedures into
normal operational practices to improve operational safety. Benefits
are estimated at $370.8 million ($225.9 million present value) and
total costs are estimated at $238.9 million ($157.5 million present
value), with benefits exceeding costs. The following table shows
benefits and costs of the alternatives over 10 years.

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                                                                                Preferred
                                                                                alternative:
                                                                   International    L, M, S and   L, M, S, >100K
            Base case                All  ($)      Class I  ($)         ($)       >100K ops  ($)     ops, and
                                                                                international
                                                                                ($)
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Benefits........................    $382,987,281    $368,096,671    $360,907,166    $356,128,301    $370,788,457
Costs...........................     471,104,787     341,021,606     215,010,997     163,760,850     238,865,692
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    Net Benefits................     -88,117,506      27,075,065     145,896,169     192,367,451     131,922,764
PV Benefits (7%)................     233,282,770     224,210,033     219,830,291     216,919,352     225,850,869
PV Costs (7%)...................     307,842,595     223,584,687     141,796,001     108,819,973     157,496,312
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    PV Net Benefits (7%)........     -74,559,825         625,346      78,034,290     108,099,379      68,354,557
PV Benefits (3%)................     307,499,272     295,542,114     289,769,378     285,932,407     297,704,052
PV Costs (3%)...................     389,440,320     282,304,199     178,432,284     136,340,226     198,211,977
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    PV Net Benefits (3%)........     -74,559,825         625,346      78,034,290     108,099,379      68,354,557
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Mitigation Costs: Not quantified, estimates not included.
Given the range of mitigation actions possible, it is difficult to quantify potential benefits.

    The estimated costs of this rule do not include the costs of
mitigations that operators could incur as a result of conducting the
risk analysis proposed in this rule. Given the range of mitigation
actions possible, it is difficult to provide a quantitative estimate of
both the costs and benefits of such mitigations. We anticipate that
operators will only implement mitigations where benefits of doing so
exceed the costs of mitigations. In order for the estimated benefits to
exceed the costs of the rule, the mitigation costs must be below $68.4
million over 10 years (discounted at 7%). The FAA requests comment on
this assumption, as well as data regarding costs and benefits
associated with any mitigations implemented through voluntary SMS
programs.

II. Background

A. NPRM

    In the NPRM, the FAA proposed to require all part 139 certificate
holders to develop and implement an SMS to improve the safety of their
aviation-related activities. An SMS is a formalized approach to
managing safety by developing an organization-wide safety policy,
developing formal methods of identifying hazards, analyzing and
mitigating risk, developing methods for ensuring continuous safety
improvement, and creating organization-wide safety promotion
strategies.
    The original comment period was to close on January 5, 2011, but,
in response to several commenters' requests, the FAA extended the
comment period to July 5, 2011. Additionally, the FAA permitted
commenters to submit clarifying questions to the docket during the
comment period. The FAA answered these questions before the comment
period closed in a document that was placed in the docket (the
``Responses to Clarifying Questions'').\4\ The FAA also published a
technical report detailing results of the Office of Airports' SMS pilot
studies that was also placed in the docket.\5\
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    \4\ ``FAA Responses to Clarifying Questions About Proposed
Rulemaking for SMS for Certificated Airports'' is available at
http://www.regulations.gov/#!documentDetail;D=FAA-2010-0997-0073).
    \5\ Safety Management System Pilot Studies (Technical Report) is
available at http://www.regulations.gov/#!documentDetail;D=FAA-2010-
0997-0074.
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    In the NPRM, the FAA proposed a new subpart E that would have: (i)
Required all holders of an airport operating certificate (AOC) to have
an approved airport SMS; (ii) prescribed the components of an SMS; and
(iii) prescribed implementation requirements for an airport SMS.
Certificate holders would have implemented SMS throughout the airport
environment, including the movement and non-movement areas (e.g.,
runways, taxiways, run-up areas, ramps, apron areas, and on-airport
fuel farms).
    Under the proposal, the FAA envisioned an SMS as an adaptable and
scalable system. For example, the proposal permitted certificate
holders to maintain a separate SMS manual in addition to the Airport
Certification Manual (ACM), or maintain SMS documentation directly in
the ACM. Options such as these would have permitted certificate holders
that operate multiple airports maximum flexibility in the development
of their SMS. Similarly, the proposal included a requirement for
certificate holders to establish a system for identifying safety
hazards and a systematic process to analyze hazards and their
associated risks. By not prescribing any one means for identifying
hazards or analyzing risk, the proposal permitted certificate holders
flexibility in developing scalable and adaptable processes under their
SMS.

B. Summary of Comments on NPRM

    The FAA received 65 comments in response to the NPRM from a variety
of commenters including air carriers, airport operators/certificate
holders, representatives of airline employees, trade associations, an
airport user group, attorneys general, consultants, universities and
private citizens. Commenters included:
     Air carriers: Delta Airlines,
     Airport operators/certificate holders: Alaska Department
of Transportation and Public Facilities, Austin-Bergstrom International
Airport (TX), Bangor International Airport (ME), City of Albuquerque
(NM), City of Merced (CA), City of Phoenix (AZ), City of Prescott (AZ),
Clark County Department of Aviation (NV), Coastal Carolina Regional
Airport (NC), Columbus Regional Airport Authority (OH), Contra Costa
County (CA), Dallas/Fort Worth International Airport (TX), Denver
International Airport (CO), Floyd Bennett Memorial Airport (NY), Glynn
County Airport Commission (GA), Hartsfield-Jackson Atlanta
International Airport (GA), Houston Airport System (TX), Huntingburg
Airport (IN), Indianapolis Airport Authority (IN), Jacksonville
International Airport (FL), Lee County Port Authority (FL), Louisville
Regional Airport Authority (KY), Manchester-Boston Regional Airport
(MA), March Inland Port Authority (CA), Maryland Aviation
Administration (MD), Miami-Dade Aviation Department (FL), Modesto City-
County Airport (CA), Myrtle Beach International Airport (SC), Norm Y.
Mineta San Jose International Airport (CA), Pitkin County (CO),
Pittsburgh International Airport (PA), Port Authority of New York and
New Jersey (NY/NJ), Port of Portland (OR), Rapid City Regional Airport
(SD), Rochester Airport Company (MN), San Antonio Airport System (TX),
Santa Barbara Airport (CA), Tri-Cities Regional Airport (TN), Tucson
Airport Authority (AZ), Tulsa Airport Authority (OK), Wayne County
Airport Authority (MI),
     Representatives of airline employees: Airline Pilots
Association (ALPA),
     Trade associations: Airlines for America (A4A), Aircraft
Owners and Pilots Association (AOPA), Airports Council International-
North America (ACI-NA), American Association of Airport Executives
(AAAE), American Association for Justice (AAJ), Colorado Airport
Operators Association (CAOA), Experimental Aircraft Association (EAA),
National Air Transportation Association (NATA),
     Airport users groups: Prescott Airport Users Association,
     Attorneys General: Attorney General for the District of
Columbia, Attorney General for the State of Oklahoma,
     Consultants and universities: Landry Consultants and Dave
Fleet Consulting, Purdue University, the University of Southern
California Aviation Safety and Security Program (U.S.C.), and
     Eight individuals and 9 anonymous submissions.
    One individual submitted a comment that was out-of-scope, and
portions of Clark County, Dallas-Fort Worth International, and AOPA's
submissions were out-of-scope.
    In addition to the above, the FAA received clarifying questions
from the following entities during the comment period: AAAE, ACI-NA,
Austin-Bergstrom International Airport, Fairbanks International
Airport, Fresno Yosemite International Airport, Landry Consultants and
Dave Fleet Consulting, Louisville Regional Airport Authority, Maryland
Aviation Administration, Port of Seattle, and U.S.C.. The FAA answered
these questions in the Responses to Clarifying Questions.\6\ Those
questions are not addressed in this document.
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    \6\ FAA Responses to Clarifying Questions (May 24, 2011),
available at http://www.regulations.gov/#!documentDetail;D=FAA-
;2010-0997-0073.
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C. Need for SNPRM

    While reviewing the comments to the NPRM, the FAA began to re-
evaluate whether requiring an SMS at all certificated airports was the
most effective option. As part of this process, the FAA looked at the
applicability for various categories of certificate holders to
determine which option would maximize safety benefits in the least
burdensome manner. While the FAA is proposing a preferred alternative
in this SNPRM, the FAA requests comments on the other applicability
alternatives discussed in this SNPRM.

III. Discussion of Proposals in the SNPRM

A. Differences Between the SNPRM and the NPRM

1. Applicability
    In the NPRM, the FAA proposed that all 544 \7\ certificated
airports be covered by the SMS requirements.
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    \7\ The number of certificated airports at the time of SNPRM
development.
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    Based on comments and other information gathered, it became evident
that application of SMS across all certificated airports was not
practical. In response, the FAA revised its assumptions used to
calculate overall costs associated with this SNPRM's proposal. The FAA
also reviewed additional accident and incident databases to obtain more
accurate assumptions of benefits derived from an SMS. These additional
databases included the FAA Accident and Incident Database (AIDS),
NASA's Aviation Safety Reporting System (ASRS), the FAA's Wildlife
Strike Database, and the FAA's Runway Incursion Database.
    Using these revised cost and benefit estimates, the FAA considered
a range of alternatives to determine how to apply an SMS requirement
that would reduce risk at the largest group of airports while still
producing net benefits. The FAA focused on airports with the highest
passenger enplanements and largest total operations so that safety
benefits would flow to the overwhelming majority of aircraft operations
in the United States. The FAA also focused on incorporating airports
with international passenger operations to ensure conformity with
international standards and recommended practices. To that end, the FAA
developed the following alternatives for additional analysis:
     All part 139 airports (as originally proposed) (544
airports covering 99.8% of U.S. passenger enplanements);
     Airport operators holding a Class I AOC (388 airports
covering 99.7% of U.S. passenger enplanements);
     Certificated international airports (240 airports covering
96.1% of U.S. passenger enplanements);
     Large, medium, and small hub airports (as identified in
the NPIAS) and certificated airports with more than 100,000 total
annual operations (177 airports covering 97.5% of U.S. passenger
enplanements); and
     Large, medium, and small hub airports, certificated
airports with more than 100,000 total annual operations, and
certificated international airports (268 airports covering 98% of U.S.
passenger enplanements).
    Because the FAA chose to analyze various alternatives based on
classifications outside the scope of part 139 (e.g., hubs or
international status instead of AOC class), it relied on the best
available information to develop the list of affected airports under
each alternative. To identify those airports classified as large,
medium, or small hubs, the FAA relied on the 2011-2015 NPIAS, current
at the time of this analysis. Similarly, the FAA relied on annual
operations data reported through FAA Form 5010-1, Airport Master Record
(downloaded August 1, 2012). The FAA relied on data obtained from Title
19 of the CFR (see Sec. Sec.  101.3, 122.13, 122.14, 122.15) and the
CBP to identify certificated airports authorized to accept
international traffic.
    After reviewing each of the alternatives and the associated costs
and benefits of each, the FAA's preferred proposal would require an SMS
be developed, implemented, maintained, and adhered to only at a
certificated airport:
     Classified as a small, medium, or large hub airport in the
NPIAS; or
     Identified as an international airport; or
     Identified as having more than 100,000 total annual
operations.
    This preferred alternative covers 268 airports across Classes I,
II, III, and IV, thus eliminating the NPRM's SMS requirements for 276
airports that have few passenger enplanements and less complex
operations. The airports that comprise this alternative account for
over 98% of all passenger enplanements in the U.S.
    While simply applying the proposed SMS requirements to large,
medium, and small hub-certificated airports would account for most of
this traffic, many critical airports would not be included because they
do not meet those enplanement thresholds. Simply accounting for
airports with higher passenger enplanements fails to acknowledge the
many other complex, certificated airports that have significant levels
of aircraft operations.\8\ Therefore, to ensure that these busy
airports are covered by the proposal, the preferred alternative
includes airports with more than 100,000 total annual operations based
on their operations data submitted through FAA Form 5010-1, Airport
Master Record available on August 1, 2012. The FAA acknowledges that
data submitted through FAA Form 5010-1 may be estimates for airports
that do not have an air traffic control tower. While more definitive
data may be available through the FAA's air traffic control tower
counts, this information may not be readily available, may not be
accessible to the public, and does not account for certificated
airports that do not have an air traffic control tower. The FAA
requests comments on what other methods may be available to accurately
account for and determine the proposed rule's applicability based on
annual operations, or whether the FAA should use a different baseline
for determining applicability.
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    \8\ Section V(B), Applicability contains detailed analysis of
these alternatives.
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    The preferred alternative also harmonizes with the intent of
International Civil Aviation Organization (ICAO) SMS standards by
including all certificated airports accepting international operations.
In December 1996, the FAA published Advisory Circular (AC) 150/5000-5C,
Designated U.S. International Airports, which explained the different
categories of U.S. airports designated to serve international air
traffic and provided a list of those airports. However, the FAA
cancelled that AC in September 2010 when it published AC 150/5000-16,
Announcement of Availability of the Guide for Private Flyers--U.S.
International Airports. The Guide for Private Flyers, published by the
CBP, lists all U.S. international airports, designated airports,
landing rights airports, and user fee airports. It also defines the
term ``international airport'' and clarifies the use of the word
``international'' in an airport name. Since the FAA no longer maintains
its own list of international airports, the FAA believes the CBP list
serves as the best available source of this information because it is
developed based on Title 19 (Customs Duties) of the CFR. The FAA
believes this approach corresponds with the intent of ICAO Annex 14
standards. The FAA requests comments on this approach, and what other
methods may be available to identify international airports.
    The FAA acknowledges that an airport's status in any one of these
categories may change over time. For example, a small hub airport may
become a nonhub airport during the FAA's annual update of passenger
enplanement data if its enplanements fall below 0.05% of the total U.S.
passenger enplanements. Similarly, an airport not currently considered
a hub might see its enplanements increase making it a small hub. The
same case could be made for annual operations and international status.

    In these cases, the FAA would review each airport's status
annually,\9\ consistent with published enplanement data,\10\ to
determine which airports are covered by the SMS requirement then in
effect. If there is a change to an airport's status that affects its
need to comply with those SMS requirements, the FAA would then notify
the certificate holder in writing of its changed status. If the change
would require the certificate holder to comply with those SMS
requirements, the certificate holder would then have two years to
comply with the SMS requirements then in effect. Certificate holders
whose status changed to be outside the scope of the SMS requirements
then in effect would be encouraged to voluntarily maintain and adhere
to an SMS. The FAA would maintain a list of those certificate holders
meeting the required applicability on its public Web site, updating the
list annually.
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    \9\ The Office of Airports regularly tracks the status of
certificated airports. As such, this review would result in an
insignificant increase in cost based on current FAA oversight
activities.
    \10\ This data is available online at http://www.faa.gov/airports/planning_capacity/passenger_allcargo_stats/passenger/.
Passenger enplanement data is gathered from the Air Carrier Activity
Information System (ACAIS).
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    The FAA requests comment on this approach. Specifically, if a
certificate holder meets the threshold to trigger an SMS requirement,
should the certificate holder be required to maintain an SMS even if it
no longer meets the threshold? Should a certificate holder meet the
applicability threshold for two consecutive years prior to triggering
an SMS requirement?
2. Implementation
    Under this proposal, certificate holders would be required to
develop and implement an SMS within 2 years of the effective date of
the final rule. The NPRM originally proposed SMS implementation within
1 year from the effective date of the final rule. This change responds
to commenters' requests for additional time to implement SMS.
    The FAA recognizes the complexity of implementing SMS in the
airport environment and, therefore, increased the timeframes for
implementation. The FAA requests comments whether this proposed
implementation timeframe is sufficient. Comments should be supported by
specific data demonstrating a different implementation timeframe is
necessary.
3. Training
    The NPRM proposed an SMS training requirement for all employees and
tenants with access to the movement and non-movement areas of the
airport. To maximize the potential for proactively identifying hazards,
the intent was to ensure that individuals authorized access to the
movement and non-movement area received training. The FAA's intent was
to create a broad training requirement, allowing certificate holders
flexibility in how they trained persons with access to these areas.
This flexibility included allowing train-the-trainer programs and
training specific to the person's role in the SMS. This would allow
certificate holders to provide orientation to the majority of persons
accessing the non-movement and movement areas of hazard identification
and reporting, rather than training on all of the certificate holder's
SMS initiatives.
    Commenters appear to have interpreted the proposed training
requirement to be cumbersome, time consuming, and excessively costly.
In light of these comments and lessons learned from the pilot studies,
this proposal offers a two-pronged approach to training: (i)
Comprehensive SMS training specific to the individual's role and
responsibility in implementation and maintenance of the SMS; and (ii)
hazard awareness and reporting awareness orientation for all other
individuals with access to the movement and non-movement areas.
    The FAA expects certificate holders to provide training appropriate
to the person's role in the certificate holder's SMS. For example,
those persons responsible for analyzing hazard reports to determine
action should be properly trained in Safety Risk Management (SRM) and
hazard assessment procedures. Individuals, including staff and/or
managers, with responsibility for daily oversight of the SMS would be
trained in all requirements of the SMS. The certificate holders could
use train-the-trainer formats where necessary.
    By clarifying this proposed requirement, the FAA anticipates that,
on average, 10 employees or managers would need this training at large
airports and 3 employees or managers would require it at small
airports.\11\ The supplemental initial regulatory evaluation uses these
estimates in the cost analysis. The FAA requests comments on whether
these estimates are accurate as an average across all airports affected
by this proposal. The FAA acknowledges that there may be certificate
holders included in the preferred applicability alternative who have
smaller staffs than these numbers take into account. The FAA also
requests comments on the job roles that would require this type of
specific training.
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    \11\ As discussed in the Supplementary Initial Regulatory
Evaluation, the analysis classifies large, medium, and small hub
airports as large airports and all others as small airports.
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    For the remaining persons with access to the movement and non-
movement areas, certificate holders could use a variety of means to
provide awareness. For example, a certificate holder could develop a
brochure or white paper for inclusion in the employee's indoctrination
package, or add a reference to hazard identification and reporting to
existing training programs such as security or driver training.
    The certificate holder would bear the cost of publishing this
awareness material and updating it as necessary. For persons employed
by tenants, the certificate holder would be responsible for providing
the materials to the tenants for distribution. Tenants, such as air
carriers, caterers, fueling agents, and FBOs, all would potentially
receive this information if their employees access the movement or non-
movement areas. However, the certificate holder could choose to provide
this material or briefings during badging or security training.
    There should be minimal record-keeping costs associated with this
type of training/awareness. The FAA anticipates that certificate
holders would retain copies of the materials provided and a
distribution log detailing when the materials are provided to employees
and tenants.
    The FAA does not intend for the proposed requirement to apply to
persons escorted by a trained individual. As for an air carrier's
crewmember training, those individuals authorized to enter the movement
and non-movement areas unescorted would receive training appropriate to
their role; in this case, awareness of hazard identification and
reporting. The air carrier would then distribute the materials provided
by the certificate holder.
    While the NPRM did not explicitly propose recurrent training, the
FAA envisioned the need for certificate holders to provide individuals
with updated information, all in support of a positive safety culture.
This proposal includes a requirement for recurrent training every other
year. It also would require the update of publications for the hazard
awareness orientation requirement on the same schedule.
4. Definition of Accountable Executive
    Numerous commenters thought the definition of accountable executive
proposed in the NPRM was impractical

and needed to be revised. After considering these comments, the FAA
agrees that the proposed definition will present compliance and
operational challenges in the U.S. airport environment. Therefore, in
this SNPRM, the new proposed definition (i) eliminates the substantive
differences between the part 121 and part 139 definitions, and (ii)
clarifies that the accountable executive should not be personally
liable to the FAA through certificate action or civil penalty. The FAA
requests comment on the feasibility of implementing this proposed
definition.

B. Proposals Remaining From NPRM

    As proposed in the NPRM, the certificate holder's SMS would be
required to contain the following four components: Safety policy,
safety risk management, safety assurance, and safety promotion. To
satisfy the safety policy component, the certificate holder would
establish a policy which, among other things, defines the certificate
holder's safety objectives, establishes a safety policy statement,
defines the certificate holder's management responsibilities and
accountabilities for safety issues, and identifies and communicates the
organization's structure for handling safety issues.
    The certificate holder would also be required to designate an
accountable executive, within the certificate holder's own organization
or governance structure, who would act on its behalf in overseeing the
implementation and daily operation of the SMS. For most airports, the
FAA anticipates the accountable executive would be an airport manager
or airport director rather than a lower level manager or supervisor.
    Under safety risk management, the certificate holder would develop
processes to identify hazards that may impact the airport's operations.
The certificate holder would use these processes to systematically
analyze those hazards and their risks, as well as proactively mitigate
risk unacceptable to the certificate holder. The certificate holder
would retain any documentation developed through these processes to
assist in trend and root cause analysis.
    Through safety assurance, the certificate holder would develop and
implement processes to monitor the safety performance of its SMS.
Additionally, the certificate holder would establish and maintain a
hazard reporting system that provides reporters confidentiality when
communicating safety issues to the system. The certificate holder's
staff would regularly update the accountable executive on pertinent
safety information such as the certificate holder's compliance with
part 139 subpart D requirements, and its performance with regard to its
safety objectives, safety critical information, the status of any
ongoing mitigations established through safety risk management, and the
status of implementing the SMS.
    Under safety promotion, the certificate holder would identify
managers and staff employees responsible for oversight and
implementation of the SMS and would provide training on their SMS
responsibilities. These individuals would receive recurrent training
every 24 months. For all other individuals with regular access to the
movement and non-movement areas of the airfield, the certificate holder
would develop and distribute hazard reporting and awareness orientation
materials, ensuring those individuals are made aware of hazards and how
to report them to the certificate holder's hazard reporting system. The
certificate holder would then keep records of training provided and
hazard reporting and awareness orientation materials for 24 calendar
months.
    The certificate holder would also be required to develop processes
and procedures to communicate important safety information that ensures
all persons authorized access to the movement and non-movement areas
are aware of the SMS and their safety roles and responsibilities.
Feedback would be provided to individuals using the certificate
holder's hazard reporting system. Lessons learned that are relevant to
airport employees or stakeholders also would be communicated.
    The certificate holder would have the option of either developing
and maintaining a separate SMS manual in addition to the Airport
Certification Manual (ACM), or incorporating these proposed
requirements directly in the ACM. If the certificate holder develops a
separate SMS manual, it would cross-reference the SMS requirements in
its FAA-approved ACM.

IV. Discussion of Comments Received on NPRM

A. FAA Rulemaking Authority

    The NPRM proposed implementing SMS throughout the airport
environment, including the movement and non-movement areas (e.g.,
runways, taxiways, run-up areas, ramps, apron areas, and on-airport
fuel farms). In the NPRM, the FAA acknowledged the proposal extended
the scope of part 139 by including the non-movement area but concluded
that ensuring air transportation safety required that an SMS apply to
any place that affects safety during aircraft operations. An
association and a certificate holder noted that the application of SMS
to the non-movement area is an unprecedented expansion of the FAA's
regulatory scope.
    The FAA has authority under 49 U.S.C. 44706 to issue AOCs that
contain terms to ensure safety in air transportation. The FAA
acknowledges that it has historically focused its regulatory practice
on the movement area. However, the statutory authority encompasses the
entire airport operating environment, which includes the non-movement
area. The proposed requirement to develop and implement an SMS ensures
safety in air transportation by assisting certificate holders in
proactively identifying and mitigating safety hazards. Furthermore, as
discussed later, findings from the SMS pilot studies and the large
number of safety incidents occurring in the non-movement area support
extending SMS to the non-movement area to ensure safety in air
transportation.
    Accordingly, as stated in the NPRM, this proposal, to the extent it
would apply to both the movement and non-movement areas, is within the
FAA's statutory authority.

B. Applicability

    The NPRM proposed requiring all certificate holders, including
airport operators holding a Class I, II, III, or IV AOC, to develop and
implement an SMS for the movement and non-movement areas of the
airport. One Class IV certificate holder recommended that the FAA
require SMS only at airports holding a Class I AOC, stating this would
target the majority of air carrier passengers in the U.S. and allow
small airports to avoid costly burdensome regulations. The certificate
holder recommended a voluntary program for Class II, III, and IV
certificate holders.
    The FAA partially agrees with the commenter. The FAA believes all
certificate holders would realize benefits from formalized hazard
identification, risk analysis, training and communications processes.
However, further review of costs and benefits indicate that, for
certificate holders with fewer operations, the costs of SMS
implementation may be disproportionate to the benefits realized. The
FAA continues to evaluate means to reduce costs for smaller airports,
but, in the absence of significant regulatory cost reductions, the
FAA's preferred proposal is to require SMS

implementation at large, medium, and small hub airports, certificated
airports with more than 100,000 total annual operations, and
certificated international airports.
    Requiring an SMS for only the largest and most complex of
operations will enhance safety at airports receiving 98% of all
passenger enplanements. The revised proposed rule would apply to 268
airports, thus eliminating the burden on 276 airports that have few
passenger enplanements and less complex operations.\12\ This proposed
requirement advances the FAA's safety goals and at the same time
reduces the burden imposed by the NPRM. Although not proposing to
require SMS implementation at all certificated airports, the FAA
encourages all certificate holders to voluntarily implement SMS based
on this proposed rule and accompanying agency guidance.
---------------------------------------------------------------------------

    \12\ These figures are current as of October 2012.
---------------------------------------------------------------------------

    Besides the alternative proposed in this SNPRM and the proposal in
the NPRM, the FAA analyzed a variety of other applicability scenarios
including:
     Airport operators holding a Class I AOC;
     Certificated international airports; and,
     Large, medium, and small hub airports and certificated
airports with more than 100,000 total annual operations.
i. Airport Operators Holding a Class I AOC
    Since the last major revision to part 139, the FAA typically has
applied technical requirements based on AOC class. Consistent with this
past practice, the FAA first analyzed limiting applicability to Class I
certificate holders. When reviewed as a whole, the 388 airports
identified as holding a Class I AOC (as of October 2012) account for
99.7% of the total U.S. passenger enplanements as of the end of
calendar year 2011. All certificated airports account for 99.8% of the
total U.S. passenger enplanements, a difference of 0.1%. However, the
list fails to account for many busy airports by total annual operations
(not passenger enplanements), some of which receive more total annual
operations than some Class I airports. Class I certificate holders also
appear to include many smaller airports that support only domestic
operations. For these reasons, the FAA does not believe that limiting
applicability to Class I certificate holders alone is the best way to
enhance safety through SMS.
ii. Certificated International Airports
    The FAA also analyzed certificated international airports. Limiting
the scope to these airports meets the intent of the ICAO standard. In
the NPRM, the FAA addressed the ICAO standard by proposing all
certificate holders implement an SMS. However, many commenters
expressed concerns about the expansion of applicability beyond the ICAO
standard (i.e., applying the standard to airports serving only domestic
traffic). The FAA identified 240 certificated airports with
international services (as of August 1, 2012). Relying on data prepared
by the CBP, these 240 airports encompass all certificated airports that
serve as ports of entry, designated international airports, landing
rights airports, and user fee airports.
    These international airports account for 96.1% of the total U.S.
passenger enplanements (as of the end of calendar year 2011). While
these airports account for the vast majority of international
operations within the U.S., this scenario fails to capture some of the
nation's busiest airports that accept only domestic operations. Based
on the limitation of applicable airports under this scenario, the FAA
does not believe that limiting applicability to international airports
is a viable option to achieve the most safety benefit.
iii. Large, Medium, and Small Hub Airports and Certificated Airports
With More Than 100,000 Total Annual Operations
    The FAA also analyzed airports by their NPIAS category, looking at
the airports that receive the vast majority of enplanements, otherwise
known as hubs. Including only large, medium, and small hub airports
does not capture airports receiving large numbers of total annual
operations. Therefore, the FAA included in its analysis of this
scenario certificated airports with more than 100,000 total annual
operations according to their Airport Master Record, FAA Form 5010-1
(available on August 1, 2012).
    This grouping gets much closer to the goal of accounting for the
most complex, busiest and highest passenger enplanements throughout the
country. Using this grouping for applicability would include 177
certificated airports that account for 97.5% of total U.S. passenger
enplanements, and all certificated airports having more than 100,000
total annual operations. The FAA believes this alternative achieves the
goal of integrating safety management practices into the most complex,
highest operation and passenger enplanement airports. Also, of those
alternatives for which FAA has estimated benefits and costs, this
alternative has the highest estimated net benefits. However, this
alternative does not harmonize with ICAO standards because 91
international airports would not be required to implement an SMS, which
could expose small international airports to the risk that
international carriers refuse to operate there. Opting out would also
require the FAA to file a difference with international standards.
iv. Preferred Alternative
    The FAA now proposes to require an SMS be developed, implemented,
maintained, and adhered to at any certificated airport:
     Classified as a small, medium, or large hub airport;
     Identified as an international airport; or
     Identified as having more than 100,000 total annual
operations.
    This preferred alternative ensures that safety management practices
will be integrated into the busiest airports and harmonizes with
international standards. This alternative applies to 268 airports,
encompassing 98% of total U.S. passenger enplanements. In addition,
this alternative positively responds to the commenters' requests to
limit applicability.
    On the other hand, including the additional 91 small international
airports that would not be captured by the preceding alternative
reduces the estimated net benefits of the rule. This is largely due to
the small number of reported accidents at these 91 airports. However,
FAA's analysis does not consider the possibility that international
airports without SMS risk losing international business due to a lack
of compliance with ICAO standards. If this were to occur, airlines and
other operators would incur costs to re-route to suboptimal locations.
The magnitude of this potential effect is uncertain, as it would depend
on the decisions of foreign actors to cease operations to domestic
airports without a compliant SMS. FAA welcomes comments on this issue.
v. Large, Medium, and Small Hub Airports; Certificated Airports With
More Than 100,000 Total Annual Operations; and an Optional Certificate
of Compliance Program for Airports With Less Than 100,000 Annual
Operations
    The FAA is also seeking comment on an alternative featuring an
optional certificate of compliance program for airports that aren't
required to

implement an SMS, but is otherwise identical to the alternative
discussed in part iii of this section. This option would allow airports
with less than 100,000 annual operations to choose to implement a
compliant SMS if they believe the benefits to them will outweigh the
costs to them.
    This alternative mitigates the concern that small international
airports would suffer a decline in their international traffic due to a
lack of compliance with ICAO's SMS standards, as airports could
implement a compliant SMS if they so choose. Providing choice to these
airports should also lead to higher net benefits than the preferred
alternative, as those airports where the benefits of SMS do not exceed
the costs can forego those costs.
    As previously stated, this alternative could present business risks
to those small airports choosing to not implement a compliant SMS.
Civil aviation authorities could prohibit their international air
carriers from serving non-compliant airports. Similarly, the FAA could
receive unsatisfactory audit findings with additional potential
unforeseen consequences for failure to conform to international
standards.
vi. Inactive Airports
    Another Class IV certificate holder and an association requested
the FAA not require certificate holders in an ``inactive status,'' or
with a Limited AOC, to have an SMS.
    Placement in an ``inactive'' status simply defers the FAA's annual
periodic inspections. That way, the agency can focus its efforts on
certificate holders with active air carrier service. However,
certificate holders in an inactive status must continue to meet all
part 139 requirements. As of May 2013, of the fourteen airports in an
inactive status, only two would fall under the proposed applicability
standards. If a certificated airport was later placed in an
``inactive'' status, it would still be required to comply with the
proposed SMS requirements if it met the applicability requirements of
this proposal.
    As for the commenters' request about Limited AOCs, the FAA no
longer issues Limited AOCs. Therefore, this issue is moot.
vii. Adherence to SMS
    This SNPRM also proposes changes to Sec.  139.401(a) to specify
that the certificate holder must adhere to an airport SMS. While the
FAA received no comments regarding this issue, the FAA believes that
adding ``adhere to'' emphasizes the point that an SMS is an ongoing
obligation and should not be shelved after implementation. Further, it
adds distinction between the phases of SMS from development to
implementation to maintenance to adherence.
viii. Scalability
    The majority of commenters, including certificate holders and
associations, commented both directly and indirectly on the need for
scalability and flexibility when developing and implementing an SMS.
    To address those comments and harmonize with other FAA rules, the
FAA proposes a new Sec.  139.401(c) permitting scalability of an SMS
based on the size, nature, and complexity of the operations,
activities, hazards and risks associated with the certificate holder's
operations.

C. Implementation Deadlines and Phasing

    The NPRM included a two-pronged approach to implementation based on
the certificate holder's AOC class. Certificate holders with a Class I
AOC would have developed an implementation plan and SMS manual and/or
ACM update within 6 months and 18 months of the final rule's effective
date. Under the NPRM, all other certificate holders would have 9 months
and 24 months, respectively, to develop an implementation plan and SMS
manual and/or ACM update. The NPRM did not propose any other
implementation approach.
    Twenty-six commenters, including five associations, twenty
certificate holders, and one consultant offered comments about the
FAA's proposed implementation deadlines and the lack of phasing. These
commenters generally recommended a phased approach, citing pilot study
findings, ICAO's recommended approach, the Airport Cooperative Research
Program SMS Guidebook, and the FAA's internal SMS policies. A phased
approach usually includes implementing SMS through a series of
management steps, such as (1) planning and organization, (2) basic
safety management, (3) fully functional SMS, and (4) continuous
improvement.
    In addition to a phased approach, fourteen commenters, including
three associations and eleven certificate holders, believed the
deadlines for submitting the implementation plan and implementing SMS
were not adequate. Four certificate holders and one association
believed the proposed deadlines were aggressive. Two other certificate
holders commented that the implementation plan deadline is not adequate
based on the complexity and lack of familiarity with SMS concepts. Two
certificate holders stated that it would be difficult, if not
impossible, to procure consultant assistance within the proposed
timeframes associated with the implementation plan.
    Two certificate holders stated that if the FAA includes the non-
movement area in the final rule, the implementation deadlines should be
extended and phased. Furthermore, an association and several
certificate holders believed the FAA should require implementation of
SMS in the movement area, or those areas already covered under part
139, before requiring SMS in the non-movement area. Doing so would
allow certificate holders time to renegotiate lease agreements where
necessary, update airport rules and regulations or minimum standards,
and use lessons learned for applying SMS to the non-movement area.
    One commenter contended that large airports needed as much time as
smaller airports to implement SMS, and that two different
implementation schedules based on AOC class was not justified.
Similarly, an association did not believe the FAA explained why Class I
airports need less time to implement SMS than small certificated
airports that may have a less complex system to analyze and less
cumbersome requirements to adopt.
    Nine certificate holders, one association, and one consultant
provided implementation schedules which can be summarized into the
following three general recommendations:
    (1) Longer deadlines after the effective date of the rule for
developing implementation plans (ranging from 9 to 18 months for Class
I certificate holders, and 12 to 18 months for all other certificate
holders), and SMS manuals and/or ACM updates (ranging from 24 to 60
months for Class I certificate holders and 36 months for all other
certificate holders);
    (2) Phased implementation over the course of 63 months for all
certificated airports; and
    (3) Airport-centric implementation, which would allow each
certificate holder to propose its own phased approach to implementation
within reasonable timeframes.
    One certificate holder requested the FAA clarify whether SMS
programs implemented before the final rule would be automatically
recognized as complying with the final requirements.
    To facilitate maximum flexibility and scalability, the FAA does not
propose to mandate a one-size-fits-all implementation approach. A
certificate holder can phase implementation, either by SMS component or
by movement versus non-movement area.

    The FAA agrees that additional time is needed to facilitate the
effective development and implementation of SMS. This proposal would
require submission of the implementation plan within 12 months of the
effective date of a final rule and submission of the SMS manual and/or
ACM update within 24 months of the effective date of a final rule. The
FAA believes that 12 months to develop an implementation plan and 24
months to develop and submit the SMS manual and/or ACM update is an
acceptable length of time based on lessons learned from the pilot
studies. In developing these documents, certificate holders will
benefit from the experience of the pilot study airports. Similarly, the
FAA plans to incorporate those experiences into advisory circular
guidance, including templates for development of an implementation
plan.
    The FAA encourages voluntary implementation of SMS prior to the
establishment of the requirements in a potential final rule. In
creating these programs, the FAA encourages each certificate holder to
establish flexible programs and processes that would allow it to make
changes if its program differs from the requirements in a final rule.
Additionally, the proposed implementation deadlines would apply to each
certificate holder regardless of whether it has a pre-existing program
or not. Therefore, a certificate holder with a voluntary SMS program
would have the same 24 months to come into compliance with any
differences between its program and the requirements of a final rule.
The certificate holder would provide the FAA with an implementation
plan identifying the gaps between its existing program and the final
requirements and timelines for implementing processes or changes to
close those gaps within the 24 months.
    The FAA anticipates that a certificate holder's SMS will
continually evolve over time based on lessons learned and best
practices. Therefore, the certificate holder may find it necessary to
amend its implementation plan or SMS manual over time.

D. Implementation Plan Approval and Inspector Authority

    The NPRM proposed to require a certificate holder to submit an
implementation plan describing how it would meet the SMS requirements
and a schedule for implementing SMS components and elements. The
proposal called for the FAA to accept the certificate holder's
implementation plan.
    One association requested inclusion of regulatory provisions for
FAA review and feedback on the implementation plan, SMS manual, and ACM
update. Also, related to implementation plan review, one certificate
holder questioned the role of the FAA inspector in verifying completion
of the implementation plan and whether the inspector would have
authority to amend or alter the implementation plan after its approval.
    The intent of an implementation plan is for the certificate holder
to identify its plan for implementing SMS within the applicable areas
and map its schedule for implementing the SMS requirements. While the
FAA originally proposed accepting the implementation plan, the FAA now
proposes to approve submitted implementation plans. This approval is
consistent with the FAA's part 121 SMS rule and would provide
certificate holders with feedback earlier in the development of SMS
programs.
    While the FAA originally planned to include examples of
implementation plan content in advisory circular guidance, the FAA has
chosen to enhance the rule text regarding the implementation plan
submission, incorporating minimum details the FAA expects when a
certificate holder submits an implementation plan. These details
correspond to the key requirements of SMS that a certificate holder
should be considering early in the implementation process. Developing a
plan for these details would allow a certificate holder to adequately
plan for requirements that may present time constraints and allow the
certificate holder to meet implementation deadlines.
    The FAA does not agree that timelines for feedback should be
incorporated into regulatory language. Based on the preferred
alternative and new proposed approach for approving implementation
plans, the FAA would need to review and approve approximately 268
implementation plans. The Regional Airports Division Offices have
experience with reviewing and approving large-scale changes to
certificate holder documents, including the ACM, from past rulemaking
actions. The FAA would handle these approvals in a timely manner in
each Regional Airports Division Office.
    The FAA would review implementation plans using a ``first-in-first-
out'' approach. However, the FAA recognizes that some certificate
holders may choose to wait until the deadline to submit implementation
plans for approval. If the majority of implementation plans were
submitted near the deadline, the FAA may then switch to a more risk-
based approach for approval, reviewing submissions from certificate
holders with the largest number of passenger enplanements or annual
operations first. To ensure consistency in these approvals, the FAA
intends to provide guidance in its Advisory Circulars and training to
Regional Airports Division Offices on the review of the implementation
plans.
    The FAA would review an implementation plan to verify that the
certificate holder identified its timeline for complying with each
requirement and defined its methods for compliance. A certificated
airport could proceed with development and implementation of its SMS
while its implementation plan is under FAA review.
    During the periodic inspection, inspectors would verify that the
certificate holder continues to comply with the unique deadlines
approved by the FAA. As more thoroughly discussed in later sections, an
inspector would develop the inspection checklist based on the unique
characteristics of the certificate holder's SMS, operations, and past
compliance.
    The NPRM also proposed that the FAA would approve the certificate
holder's SMS manual if it chose to develop a manual separate from the
ACM. Similar to the SNPRM's proposal to approve instead of accept the
implementation plan, the FAA proposes to accept the SMS manual instead
of approve it. Airports that participated in the SMS pilot studies
found it necessary to update SMS manuals numerous times as they
developed best practices through implementation. Therefore, by the FAA
accepting the SMS manual, certificate holders would have greater
flexibility adapting to lessons learned without resubmitting the SMS
manual for approval. The SNPRM proposes that for a certificate holder
choosing to maintain an SMS manual, the certificate holder would be
required to submit any changes made to the SMS manual annually,
consistent with its inspection schedule. This new proposed requirement
would ensure that the FAA's copy of the SMS manual is current and
available for the inspector to review before the certificate holder's
annual inspection.
    The FAA would continue to approve the ACM and its updates. For a
certificate holder using an SMS manual, the certificate holder would
cross-reference the SMS requirements in its FAA-approved ACM. Any
changes to references in the ACM would require submittal to the FAA for
approval. However, if the SMS manual changes do not affect the ACM
cross-references, there would be no need to resubmit the

ACM pages for FAA-approval. If the certificate holder chooses to
document the SMS within the ACM instead of a separate SMS manual, it
would not have the flexibility afforded by the SMS manual. Changes
would need to be submitted to the FAA for approval. Once the FAA
accepts the certificate holder's SMS manual and/or approves ACM updates
detailing the certificate holder's SMS, that document would be the
primary means of complying with the SMS requirements under the proposed
rule, not the implementation plan. The implementation plan serves as a
tool to help the certificate holder develop and implement the various
components and elements of SMS within the prescribed and/or approved
deadlines. Once SMS is completely implemented, the implementation plan
becomes obsolete. The FAA would not use the implementation plan as a
compliance yardstick.
    Certificate holders would have the opportunity to submit amendments
to implementation plans, with review and approval being the
responsibility of the Regional Airports Division Offices.

E. Non-Movement Area

    The FAA received numerous comments regarding the non-movement area
which can be generally categorized as follows: Definition,
applicability, and control.
    Based on findings from the pilot studies, the FAA proposed
extending SMS requirements to the non-movement area of the airport.
Since the term non-movement area was not previously defined in part
139, the NPRM included a proposed definition that defined the non-
movement area as the area, other than that described as the movement
area, used for the loading, unloading, parking, and movement of
aircraft on the airside of the airport (including without limitation
ramps, apron areas, and on-airport fuel farms).
    Five certificate holders questioned the FAA's proposed definition.
One certificate holder stated that the proposed definition did not
align with existing definitions and could lead to confusion. The
certificate holder recommended the FAA align the definition with the
current definition for air operations areas. Two certificate holders
requested the FAA clarify in the final rule that the non-movement area
does not include or apply to landside operations.
    Two certificate holders sought clarification on the areas
identified in the definition and identified inconsistencies within the
NPRM. Two other certificate holders requested the FAA exclude certain
areas from the definition, including military and general aviation
leaseholds and fuel farms. One of those certificate holders stated that
joint-use airports already have safety systems in place to address
safety issues and operational concerns, and lease provisions prohibit a
certificate holder from imposing SMS within the military leasehold. Two
certificate holders stated that fuel farms should not be included in a
final rule because they are typically a contracted service and are
already subject to regulation by DOT and local authorities.
    The FAA has concluded the proposed definition is consistent with
existing guidance on distinguishing airport areas based on whether
aircraft are subject to air traffic control. The FAA also determined
the air operations area definition identified in 14 CFR 153.3 should
not replace the proposed non-movement area definition since this term
is associated with security-related issues, rather than operational
safety issues.
    The FAA previously responded to issues regarding applicability to
joint-use and general aviation areas, ramps, and bag-makeup areas in
its Responses to Clarifying Questions. As many of these same issues
were repeated in comments to the NPRM, a summary of those responses and
their applicability to the SNPRM follows:
     The proposed rule does not apply to military facilities at
joint-use airports, but the certificate holder could invite the
military to participate in SMS activities.
     The proposed rule does not require airport tenants to have
a separate SMS; it would be applicable to certificate holders of a part
139 AOC only.
     The definition applies to the entire non-movement area
regardless of lease arrangements. The proposed rule includes broad
requirements intended to increase flexibility to implement an SMS for a
certificate holder's unique operating environment.
     A certificate holder's SMS would apply to any safety
issues including employee safety, ground safety, vehicle safety, and
passenger safety to the extent that they are related to aircraft
operations.
     The definition for non-movement area does not include the
interior of hangars.
    Regarding general aviation areas of the airport, the proposed
rule's requirements would give flexibility to each certificate holder
to scale the implementation to its unique operating environment. A
certificate holder would need to ensure that individuals authorized to
access the movement and non-movement areas are aware of, and have the
opportunity to report hazards to, the certificate holder's hazard
reporting system. Many certificate holders may find it necessary to
update airport rules and regulations, revise clauses in lease
agreements, and renegotiate lease agreements where appropriate to have
airport tenants participate in the airport's SMS. Therefore, while not
directly applicable to fixed-base operators (FBOs), a certificate
holder may need to work with tenants such as FBOs to ensure the
tenants' employees authorized to access these areas are aware of the
airport's hazard reporting system.
    Similarly, if bag make-up areas are located outside the landside
facilities in proximity to air carrier operations, the certificate
holder would need to assure implementation of relevant portions of this
proposed requirement, like awareness of the hazard reporting system,
for individuals working in the external bag make-up area.
    As for on-airport fuel farms, Sec.  139.321(b)-(g) currently
prescribe requirements applicable to fuel farms for things like
inspections and training. Therefore, it would be a natural progression
to implement relevant portions of SMS within the fuel farm environment.
    Over 25 commenters, including certificate holders and industry
associations, disagreed with or questioned applying SMS to the non-
movement area. The certificate holders stated that applicability to
these areas would be costly and require time to revise standard leases,
rules, regulations, and minimum standards. Further, complex geometry,
lease agreements, and operational agreements make managing the non-
movement area airport-centric. Commenters contended the FAA does not
have the time or experience to become familiar with each airport's non-
movement areas to judge compliance. One industry association believed
that inclusion of the non-movement area without regard to airport-
specific considerations undermines the goals of scalability and
flexibility. Another industry association and certificate holder
believed that more study and guidance is needed before the FAA applies
SMS to the non-movement area. These commenters further questioned
applicability when a tenant or leaseholder is required to implement SMS
under other FAA regulations.
    The FAA disagrees with the commenters' issues regarding the
applicability of SMS requirements to the non-movement area. The pilot
studies found, based on reports from numerous participating airports,
that it was difficult to apply SMS concepts to only

the movement area because aircraft and airside personnel routinely flow
between movement and non-movement areas.
    The FAA also identified a large number of safety accidents and
incidents occurring in the non-movement area. Analysis of these
accidents and incidents indicates that safety in the non-movement area
is a significant concern. The proactive approach to hazard
identification and analysis of accidents, incidents, or other reported
or collected data at each individual airport through an SMS would
likely reduce these incidents. The FAA believes there are significant
benefits of applying safety management principles to areas not
previously regulated under part 139.
    While commenters expressed concerns regarding the complexity of
operations within the non-movement areas and the FAA's ``inexperience''
in these areas, the FAA does not propose specific technical
requirements in the non-movement area. Instead, the FAA plans to learn
from certificate holders as they implement and maintain SMS. Over time,
the FAA expects certificate holders and inspectors to share lessons
learned or best practices that will then be reported nationally.
Similarly, the FAA expects certificate holders to consult with the FAA
if they find trends or issues that require a systematic fix.
    The FAA is committed to an interoperable approach to SMS and plans
to take numerous steps to avoid duplication and enhance cooperation and
reporting between the SMS efforts. In addition to providing advisory
circular guidance, the FAA has included similar language regarding
interoperability and duplication of hazard reporting in the Safety
Management Systems for Domestic, Flag, and Supplemental Operations
Certificate Holders (Part 121 SMS) final rule [80 FR 1308 (January 8,
2015) \13\].
---------------------------------------------------------------------------

    \13\ Correction made to applicability date, see 80 FR 1584
(January 13, 2015).
---------------------------------------------------------------------------

    The FAA disagrees with the commenters' request for stronger
language regarding landside operations. The statutory authority
supporting part 139 limits the agency's purview to issuing certificates
and minimum safety standards for airports receiving certain passenger
carrying operations. The agency's past and current standards apply
minimum safety standards for those areas on an airport where passenger-
carrying operations are conducted. Accidents or incidents within the
terminal environment have minimal impact on the safety of passenger-
carrying operations. Moreover, local and state safety codes and
regulations would typically cover issues found within the landside
environment.
    Several commenters, including three associations and nine
certificate holders, argued that certificate holders lack sufficient
authority and control to impose SMS requirements on airport tenants
operating in the non-movement area. These commenters further noted
difficulty due to the variety of lease agreements, clauses, and terms.
One certificate holder contended that most airports, including itself,
do not have personnel or expertise to oversee safety in the non-
movement area. Another certificate holder recommended the final rule
recognize the uniqueness of the non-movement area and provide latitude
based on the activities that occur within the non-movement area, the
level of control that the certificate holder has over those activities,
and the extent to which access is within the tenant's control.
Alternatively, one certificate holder requested the FAA apply or impose
the proposed SMS requirements on tenants or exclusive leaseholds and
allow the certificate holders to delegate the proposed requirements for
shared leaseholds.
    One association opined that, in the past, certificate holders have
retained some oversight over tenant operations in the non-movement
area, but that the NPRM pushed certificate holders to assume a primary
role for safety. If that is the expectation, the association strongly
disagreed with FAA's vision for SMS in the non-movement area.
    Finally, a certificate holder with multiple part 139 airports
contended that it would need to renegotiate over 1,500 lease
agreements, and that even with renegotiations, it still would not
possess the authority needed to fully implement SMS in the non-movement
area.
    The FAA disagrees with the comments that certificate holders lack
control in the non-movement area of their airports. The FAA also
disagrees with the request to directly apply these proposed airport SMS
requirements on airport tenants. Part 139 applies only to certificated
airports. While there may be instances where the certificate holders
are not the same entity as the airport owner, airport owners who accept
federal financial assistance (the vast majority of part 139 airports)
must maintain sufficient rights and powers to operate the airport in
accordance with grant assurances, which includes both movement and non-
movement areas.

F. Accountable Executive

    The NPRM proposed a requirement for the certificate holder to
identify the accountable executive for the airport. Consistent with
ICAO's definition of accountable executive, the FAA's proposed
definition for accountable executive in the NPRM stated that an
accountable executive means a single, identifiable person who,
irrespective of other functions, has ultimate responsibility and
accountability, on behalf of the certificate holder, for the
implementation and maintenance of the certificate holder's SMS. The
accountable executive would also have to have full control of the human
and financial resources required to implement and maintain the
certificate holder's SMS. The accountable executive would also have
final authority over operations conducted under the certificate
holder's AOC and have final responsibility for all safety issues.
    The FAA acknowledged in the NPRM that it may be difficult for
publicly-owned and operated airports in the U.S. to identify an
accountable executive based on this definition and invited comments.
    Twelve commenters, including two associations, nine certificate
holders, and one consultant, believed the proposed definition is
impractical and needs revision. One association summarized the variety
of comments certificate holders had, stating that the definition needs
to reflect the realities of U.S. airports where an airport director has
managerial responsibilities but does not have final authority over
airport operations. The commenter noted that these airports usually
have a governing body, such as a Board of Commissioners or City
Council, which has ultimate responsibility for operational and
financial decisions. Therefore, the highest approving authority may not
be one individual, as required by the proposed definition. Further,
this association requested any final rule definition reflect that, at
the majority of U.S. airports, no single manager has unilateral
authority to direct actions by tenants and other non-airport employees.
    Other alternative definitions proposed by the commenters included:
     Mirroring the part 121 SMS definition;
     Allowing certificate holders to designate an accountable
organization structure instead of one executive;
     Redefining the position to account for airport managers
who do not have complete financial control; and
     Allowing for designation of an SMS or Safety Manager
because the airport

manager may not have the time or ability to fulfill the obligations of
the accountable executive position.
    One certificate holder requested any final rule include a provision
that the FAA does not intend to hold individuals, including the
accountable executive, personally liable for safety infractions or
violations of the SMS.
    The proposed definition eliminates differences between the part 121
and part 139 definitions. The concept of an accountable executive
conforms to industry and international safety standards for SMS. The
accountable executive's role is 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. The individual should have the authority
to ensure that the SMS is implemented and effective. Traditionally,
safety programs were housed within one division of the certificate
holder's organization. Under a systems approach, the concepts of SMS
need to permeate throughout the certificate holder's organization to
ensure that all offices, employees, and tenants with responsibilities
in the movement and non-movement areas understand their role in SMS.
    However, the FAA appreciates the diversity of certificate holder
organizations and agrees that the ICAO definition of accountable
executive could present compliance and operational challenges for many
publicly-owned and operated airports within the U.S. Therefore, the FAA
proposes the revised definition in Sec.  139.5 of this proposed rule.
    In practice, the FAA anticipates that most certificate holders
would designate an airport manager or airport director as the
accountable executive. Accountability cannot be delegated; therefore, a
lower-level manager or supervisor could not serve as the accountable
executive.
    The FAA does not intend to require the designation of additional
positions to implement the daily operation of the SMS. Such
designations should be left to the discretion of the certificate holder
based on its unique operating environment and management structure. A
certificate holder would have this flexibility in establishing its
safety organizational structure as identified in proposed Sec.
139.402(a). The safety organizational structure would identify the
positions and offices within the certificate holder's organization that
have responsibility for or play a role in the safety of airport
operations. This includes the ``chain of command'' and the means by
which airport employees report safety concerns, hazards, and other
safety-related information.

G. Data Protection

    The NPRM included numerous proposed requirements for certificate
holders to develop and maintain documentation for hazard reporting,
identification, and assessment. While the FAA did not propose a
requirement for certificate holders to provide those documents to the
agency, the certificate holder would maintain the documents for
historical and trend analysis as part of its continuous improvement
efforts.
    Seventeen commenters, including certificate holders and
associations, addressed issues of data protection posed by the proposed
rule. Only one association, which represents trial attorneys, agreed
with FAA's approach to hazard reporting. This association cautioned the
FAA from making any changes, claiming that restrictions on the
disclosure of safety data flies in the face of safety and only serves
to protect and immunize business entities from responsibility in the
event of negligence or wrong doing.
    All other commenters believed that, without explicit data
protections, persons not employed by the certificate holder would be
reluctant to voluntarily share information or report hazards for fear
of litigation or public perception if the data is released through
state or local sunshine laws. Many commenters believed that, without
protecting SMS-related data, certificate holders would not be able to
establish effective confidential reporting systems. Commenters made
numerous recommendations including:
     Make SMS data confidential.
     Protect data in a similar manner that air carriers are
able to protect safety data, such as a data collected under the Flight
Operational Quality Assurance Program (FOQA) or the Aviation Safety
Action Program (ASAP).
     Protect SMS data using Security Sensitive Information
(SSI) provisions.
     Allow redaction of data.
     Establish a national database to accept voluntary safety
information from certificate holders and other stakeholders using
protections under 49 U.S.C. Sec.  40123 and 14 CFR part 193.
     Make SMS data exempt from disclosure under the Freedom of
Information Act (FOIA) pursuant to 49 U.S.C. Sec.  40123 and part 193.
    One certificate holder disagreed with the FAA's claim that
certificate holders are in the best position to work with state and
local legislators to provide additional protection from data
disclosure. That certificate holder believed it is an unreasonable
burden on airports to seek legislative exceptions to public records
laws and will result in a patchwork of legal protection throughout the
U.S.
    Another certificate holder sought clarification on how the FAA will
evaluate the certificate holder's program if there is no requirement to
submit data to the FAA and, if the FAA does take or copy the
certificate holder's documents, how they will be protected from FOIA.
    Section 44735 of title 49 of the United States Code specifically
contemplates the protection of SMS data that is voluntarily submitted,
such as reports, data, or other information produced or collected for
purposes of developing and implementing an SMS, from FOIA disclosure by
the FAA. It is important to note, however, such protection could not be
afforded to SMS information that is required to be submitted to the
FAA, or is kept to satisfy compliance with other regulatory
requirements. For these reasons, the FAA is not proposing data
reporting requirements for safety-related data created under an SMS
(such as hazard reports, safety risk management documentation, or
safety assurance documentation). As such, consistent with the authority
in section 44735, there should be no implications under FOIA for that
safety-related data. The FAA, through its inspectors, could review a
certificate holder's documentation to ensure compliance with part 139,
but the FAA generally would not take possession of those documents
unless the inspector was investigating an issue of non-compliance.
    To further clarify the extent of protection that may be afforded
under section 44735, the FAA notes that any record or other
documentation that is required to show compliance with other regulatory
requirements would not be protected. Any information protected under
the statute is only protected from release by the FAA. If the
information is submitted or released by the certificate holder to
another government entity, the protections of the statute are not
binding on these other entities. Nor are these documents necessarily
protected from discovery in civil litigation, although the certificate
holder would be free to ask the court for whatever protections would be
appropriate under the rules of the relevant jurisdiction.
    The FAA acknowledges that most certificate holders are owned by a
state, a subdivision of the state, or a local governmental body. These
certificate

holders are best situated to understand and comply with their
applicable State laws. The FAA is uncertain whether any FOIA exceptions
would preclude disclosure requirements under applicable state law. Any
redaction of SMS data potentially required to be disclosed would be
subject to applicable state law requirements and not established by the
FAA.
    The FAA also notes 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 FAA cannot speculate on how a third party would report to or
share information with a certificate holder's SMS. This proposed rule
does not require third parties to turn over SMS data to a certificate
holder. However, the proposal would require a certificate holder to
establish a confidential hazard reporting system and encourage hazard
reporting by all persons accessing the movement and non-movement area.
The FAA believes an SMS program could be structured in such a manner to
realize safety benefits while limiting the public release of
confidential third-party information. Use of third-party servers and
de-identification of reporter information prior to receipt by the
certificate holder could be solutions that would limit release, subject
to applicable state law.
    The FAA believes that individual certificate holders are best
situated to review and resolve hazard reports related to their unique
operating environment. As discussed in the FAA's Responses to
Clarifying Questions, the FAA would use existing regulatory oversight
processes to ensure that systemic or national compliance issues are
reported when appropriate. FAA Order 5280.5C, Airport Certification
Program Handbook, requires coordination with and oversight by the
Airport Safety and Operations Division for airport certification
inspection activities. In accordance with that order, inspection
findings are recorded in national databases by inspectors and reviewed
by the Airport Safety and Operations Division. Furthermore, enforcement
activities by Regional Airports Division Offices are required to be
coordinated with the Airport Safety and Operations Division.
    The FAA is exploring methods to create a national reporting
database for voluntary reporting of SMS data. The agency requests
comments from industry on the types of data or other information
certificated airports could provide under a national reporting
database. This data could be used for system-wide analysis, the
development or amendment of standards, and risk-based approach to
targeted inspections.

H. Liability

    An SMS is a formalized approach to managing safety and includes the
establishment of many proactive processes and analyses, and the
creation of documentation that can be used for decision-making and
trend analysis. The NPRM did not expressly discuss potential liability
under this new proactive approach.
    Fourteen commenters, including ten certificate holders, two
associations and one anonymous commenter, raised issues related to
liability, noting that SMS-related processes and documentation will
expose certificate holders to additional liability. Eight of those
commenters went further to claim that there would be increased
liability for airport management, especially for the accountable
executive, under the proposed requirements. For example, one
certificate holder contended compliance with the proposed SMS
requirements could alter the airport's liability under the standard of
care laws, which vary from state to state. That certificate holder also
feared that decisions, safety risk matrices, and other processes and
documentation could become evidence in litigation or the subject of
litigation.
    Other commenters, including three certificate holders and an
association, questioned how a certificate holder's SRM processes could
be used against the airport if there is an incident on the airport and
it is found that the certificate holder did not act consistent with its
own safety risk assessment under its SMS. Furthermore, one association
believed there would be increased liability for the certificate holder
and the accountable executive if the standards are not high enough or
if the standards are not met.
    Another association stated that acceptable level of ``risk'' as is
established for SRM safety risk assessments, runs counter to U.S. tort
principles and practice. The association further stated that, by
identifying a hazard, an airport operator then has a duty to address
that hazard promptly through mitigation measures. Furthermore, the
commenter noted that although some airports that are owned by a state
or municipal entity may be fully or partially protected from negligence
claims through sovereign immunity, many, if not most, airports are
subject to suit for negligence under applicable state law. Thus, once
an airport is aware of a hazard, it is at risk for a negligence claim
if injury or damage occurs as a result of that hazard.
    Several commenters, including three certificate holders, an air
carrier, and an association asserted that certificate holders lack
sufficient control in the non-movement area, and that an SMS could
result in a certificate holder being held legally responsible for
personal injury or property damage resulting from hazards identified
through the airport's SMS in areas not under its control. One
association argued that airport leases or license agreements transfer a
certain degree of control from the airport/landlord to the tenant/
licensee. While an airport may retain a certain degree of control, the
tenant typically has a certain degree of autonomy to run its operations
within the leased area as it sees fit, subject to legal requirements.
There may be times where a certificate holder identifies hazards in the
leased area that are not a violation of any enforceable obligation of
the tenant. In these cases, the airport will have limited recourse.
    Commenters made a number of recommendations including:
     Commit to join industry groups in seeking modifications to
federal law;
     Prohibit, by regulation, the testimony of FAA employees in
litigation against certificate holders where standards of care is an
issue; and
     Provide explicit protection of the certificate holder.
    The FAA cannot speculate on potential litigation resulting from a
potential accident at some point in the future, which would be fact-
specific and subject to applicable law that varies throughout the U.S.
However, the FAA does not intend for this proposed rule to create or
modify state tort liability law or create a private right of action
under federal or state law. The FAA does not agree with the assertion
that SMS increases liability for an airport operator or its accountable
executive. The availability of additional data and analysis for
decision-making should support a certificate holder in potential
litigation. Failure to take action on identified safety hazards,
regardless of formal analysis under SMS, generally may increase
litigation risk. Nevertheless, the FAA intends for SMS to assist
certificate holders in uncovering and mitigating unsafe conditions or
actions, thus decreasing a certificate holder's litigation risk. A
certificate holder could effectively use SMS to reduce liability by
promptly investigating identified hazards and risks, conducting a
thorough analysis of hazards, and keeping accurate records.
    Furthermore, the new proposed definition for accountable executive

would clarify that the accountable executive would not be personally
liable to the FAA, through either certificate action or civil penalty.
Additionally, the FAA does not intend for the accountable executive to
have personal liability to any third party; however, issues concerning
such liability are controlled by state law, not the SMS regulations.
    Finally, the FAA notes that the extent to which SMS data may be
discoverable in litigation is subject to the state or federal law
governing the litigation. The FAA believes the certificate holder is in
the best position to understand and comply with its state's laws.

I. Training

    In the NPRM, the FAA proposed requiring certificate holders to
provide formal training to all employees and tenants with access to the
movement and non-movement areas appropriately tailored to the
individual's role in the airport's SMS. The FAA invited comment
concerning the practical and economic implications of the proposal, or
applying the requirement to all individuals with access to those areas.
    Ten commenters, including four certificate holders, three
associations, one air carrier, one individual and one consultant,
identified inconsistencies and various interpretations of the proposal.
These commenters noted that terms like employee, tenant, and personnel
were used ambiguously throughout the proposal. Three commenters
requested the FAA coordinate the terms and definitions in the two
rulemaking proposals for part 139.\14\ An association and certificate
holder requested that the FAA define these terms.
---------------------------------------------------------------------------

    \14\ During the NPRM comment period, the FAA published the
``Safety Enhancements, Certification of Airports'' NPRM proposing
updates to part 139. After reviewing comments, the FAA issued a
final rule (78 FR 3311, January 16, 2013).
---------------------------------------------------------------------------

    Two certificate holders offered the following alternate
interpretations of the proposal:
    (1) The certificate holder is required to train only its employees;
    (2) The certificate holder is required to train those personnel who
are employed at the airport (regardless of the identity of the
employer); or
    (3) The certificate holder is required to train all individuals
with access to the movement and non-movement areas of the airfield.
    One certificate holder questioned whether the requirement applies
to all individuals with access to the movement and non-movement areas
or only those that have authority to drive in those areas. The
certificate holder requested the FAA reconsider the timing of the
training requirement, citing a 2-year cycle instead of annual training
as being more consistent with airport security badging processes.
    Another certificate holder questioned who is responsible for
training under the proposed rule and whether the certificate holder is
responsible for training all airport tenants.
    An association recommended the FAA allow a certificate holder to
assess who needs training on its airport, and whether training should
be extended to all individuals accessing the movement and non-movement
areas. The association believed this would allow certificate holders
maximum scalability by tailoring their training program and costs to
reflect their unique operating environment.
    Another association requested the FAA provide more detail on what
topics should be included in the training program, and how a
certificate holder would best implement the requirement. Certificate
holders and one association expressed concerns about the lack of
expertise of staff to implement such a training program, the magnitude
of a program that reached all individuals with access to these areas
(not just airport employees), and the workload associated with
developing and providing training. To decrease workload, one
certificate holder requested the FAA develop a basic SMS training
course for certificate holders which could be augmented by an airport-
specific course.
    Commenters also offered a number of recommendations for scope
changes including:
     Training personnel with regular, recurring access to the
airport only;
     Training employees with responsibilities outlined in the
ACM only;
     Training certificate holder employees only; or
     Allowing train-the-trainer programs.
    Associations representing air carriers and pilots expressed concern
about the FAA's proposed training requirements in the non-movement
area, questioning how flightcrew members of airline tenants would be
able to comply based on dynamic scheduling. One association recommended
flight crew training remain an airline responsibility. Another
association rejected the notion of training individuals with access to
the non-movement area, claiming that existing training requirements are
sufficient.
    One association recommended the FAA clarify timelines for training,
suggesting that certificate holders begin training their managers and
employees within 12 months of the FAA's approval of the SMS manual.
    A consultant observed that training implies an increased level of
liability, and that the FAA should instead require orientation. This
orientation should focus on general safety training such as ramp
markings, airport rules and regulations, hazard reporting, and accident
and incident response and reporting.
    Finally, a certificate holder requested the FAA not mandate
recurrent training.
    The NPRM proposed an SMS training requirement for all employees and
tenants with access to the movement and non-movement areas of the
airport. To maximize the potential for proactively identifying hazards,
the intent was to ensure that individuals authorized access to the
movement and non-movement area received training. This would create a
broad training requirement, allowing certificate holders flexibility in
how they trained persons with access to these areas. This flexibility
included allowing train-the-trainer programs and training specific to
the person's role in the SMS. This flexibility would allow certificate
holders to provide orientation to the majority of persons accessing the
non-movement and movement areas of hazard identification and reporting,
rather than training on all of their SMS initiatives.
    Commenters appear to have interpreted the proposed training
requirement to be cumbersome, time consuming, and excessively costly.
In light of comments and lessons learned from the pilot studies, the
proposal in this SNPRM offers a two-pronged approach to training: (i)
Comprehensive SMS training specific to the individual's role and
responsibility in implementation and maintenance of the SMS and hazard
awareness; and (ii) reporting awareness orientation for all other
individuals with access to the movement and non-movement areas.
    The FAA expects each certificate holder to provide training
appropriately tailored to the person's role in the certificate holder's
SMS. Persons with responsibilities for implementation or oversight of
the certificate holder's SMS would be required to receive training
specific to their roles and responsibilities. For example, those
persons responsible for analyzing hazard reports to determine action
should be properly trained in SRM and hazard assessment procedures.
Individuals, including staff and/or managers, with responsibility for
daily oversight of the SMS would be trained in all requirements of the
SMS. Again,

the certificate holder could use train-the-trainer formats where
necessary.
    By clarifying this proposed requirement, the FAA anticipates the
average pool of employees needing this training to be between 3 and 10
employees or managers per airport. The supplemental initial regulatory
evaluation uses these estimates in the cost analysis. The FAA requests
comments on whether these estimates are accurate as an average across
all airports affected by this proposal. The FAA acknowledges that there
may be certificate holders included in the preferred applicability
alternative who have smaller staffs than these numbers take into
account. In those environments, additional staff may not be necessary
but rather, existing staff could assume these duties and
responsibilities within their existing job roles. Thus, the FAA also
requests comments on the job roles that would require this type of
specific training.
    For the remaining persons who have access to the movement and non-
movement areas, a certificate holder could use a variety of means to
provide hazard awareness and reporting orientation. For example, a
certificate holder could develop a brochure or white paper for
inclusion in the employee's indoctrination package, or add a reference
to hazard identification and reporting to existing training programs,
such as security or driver training.
    The certificate holder would bear the cost of publishing this
awareness material and keeping it updated. For persons employed by
tenants, the certificate holder would be responsible for providing the
materials to the tenants for distribution. Tenants, such as air
carriers, caterers, fueling agents, and FBOs, all would potentially
receive this information if their employees access the movement or non-
movement areas. However, the certificate holder could choose to provide
this material or briefings during badging or security training.
    There should be minimal record keeping costs associated with this
type of training/awareness orientation. The certificate holder would
maintain training records for only those individuals receiving
comprehensive SMS training. For hazard awareness and reporting
orientation, the FAA anticipates the certificate holder would retain
copies of materials provided and a distribution log detailing when the
materials are provided to tenants. The certificate holder would not be
required to maintain individual training records for hazard awareness
and reporting orientation.
    The FAA does not intend for the proposed requirement to apply to
persons escorted by a trained individual. As for an air carrier's
crewmember training, those individuals authorized to enter the movement
and non-movement areas unescorted would receive training appropriate to
their role; in this case, awareness of hazard identification and
reporting procedures. The air carrier would then distribute the
materials provided by the certificate holder.
    While the NPRM did not explicitly propose recurrent training, the
FAA envisions the need for a certificate holder to provide individuals
with updated information, all in support of a positive safety culture.
This proposal includes a requirement for recurrent training every other
year. It also would require the update of publications for the hazard
awareness orientation requirement on the same schedule.
    This proposal also includes cross-references between the new
proposed training requirement in Sec.  139.402(d) and existing training
references in Sec.  139.303(e). It ensures consistent formatting with
existing requirements in part 139.

J. AIP Eligibility

    Sixteen certificate holders, two associations, and one consultant
expressed concern that the proposal was not clear on how certificate
holders should fund SMS development and implementation and whether
federal financial assistance through the Airport Improvement Program
(AIP) would be available for SMS-related items. If AIP funding is made
available, commenters sought clarification on eligibility in general,
and, specifically, regarding the purchase of software for hazard
tracking, analysis, and reporting, as well as for SMS manual
development.
    One certificate holder pointed out that if AIP funds are made
available and Congress fails to provide additional funding to the
program, airports would be forced to comply using the same funds that
are used to make improvements to airport infrastructure.
    Four certificate holders requested the FAA delay a final rule until
a dedicated funding source for initial and recurring costs related to
SMS is found.
    The FAA acknowledges that the NPRM was silent about AIP funding for
development and implementation of the SMS requirements. The question of
AIP eligibility is not relevant to an estimation of the cost of the
proposed rule. The question of who pays involves an economic transfer,
not a societal cost.
    Compliance with part 139 is not dependent on AIP eligibility.
However, the FAA understands the concerns expressed by the commenters.
In August 2013, the FAA issued Program Guidance Letter 13-06, Safety
Management Systems (SMS), which addressed similar issues in more
detail. This guidance was later canceled when its contents were moved
to the updated FAA Order 5100.38D, Airport Improvement Program (AIP)
Handbook.\15\ The following provides a general overview of AIP funding
of SMS efforts. However, as with any question involving AIP funding,
the airport sponsor must work directly with the local FAA Airports
District Office (or Regional Airports Division Office in regions that
do not have District Offices) in connection with questions about
eligibility, justification, and availability of funds for specific
efforts. There are rules associated with the types of funds, projects,
and airports that can receive AIP funding. With that said, the FAA has
committed to making some SMS-related costs eligible for federal
financial assistance under AIP.
---------------------------------------------------------------------------

    \15\ Issued September 30, 2014 and available at http://www.faa.gov/airports/aip/aip_handbook/
---------------------------------------------------------------------------

    In general, the FAA has determined that reasonable costs incurred
for development of an initial implementation plan and SMS manual are
eligible for AIP planning grant funds. The portions of the SMS manual
and implementation plan development that are within the control of the
airport sponsor, through enforcement of the airport's published Rules
and Regulations, Minimum Standards, or other existing controls, can be
funded with AIP. AIP funds can help establish safety protocols that
affect users of the airport, but AIP funds cannot be used to help users
of the airport manage their own operations. Revising an ACM to include
SMS requirements in the ACM would not be eligible for AIP funds.
    SRM activities conducted under the certificate holder's SMS are
considered a part of the airport's day-to-day activities. Because
operational costs are not eligible under AIP, these ongoing activities
and their incurred costs are not eligible. Recommendations from SRM
activities, including mitigations to decrease risk, are not necessarily
eligible because a recommendation may be wholly operational, or may
involve work from ineligible entities (such as the FAA Air Traffic
Organization or other FAA lines of business that have independent
operational budgets).
    It is possible that a SRM recommendation may be an allowable cost
of an AIP-eligible capital project or may be independently eligible as
an AIP capital project. In these cases, the cost would be part of the
eligibility priority

and justification requirements of the project type and airport size
classification. For example, a certificate holder's SRM process
recommends relocating a taxiway to eliminate a runway crossing hazard.
In that case, because taxiway projects are already eligible under AIP,
the taxiway project recommended through SRM will follow the existing
published eligibility requirements for taxiway projects.
    Federally-obligated airports are already required under AIP Grant
Assurance 19, Operation and Maintenance, to operate at all times in a
safe and serviceable condition and in accordance with the minimum
standards as may be required or prescribed by applicable federal,
state, and local agencies for maintenance and operation. This includes
identifying and mitigating hazards.
    Therefore, although the FAA will continue to provide AIP funding
for eligible capital improvements, it has always been (and remains) the
certificate holder's responsibility to mitigate risks regardless of
whether federal funding is available. Eligible and justified
improvements are generally physical improvements to the configuration
of airfield geometry (e.g., physical layout of runways, taxiways, and
appurtenant facilities), as well as associated signage, marking, and
lighting. For AIP-eligible projects requiring hazard assessment led by
the FAA, some of the associated costs for convening a panel may be
included as allowable under an AIP grant.
    The FAA's proposed requirements should not involve major
expenditures in new systems, including hazard reporting systems.
However, some airports that participated in the pilot studies used SMS
software for development of the plan and SMS manual and/or for actual
implementation of SMS. Therefore, the FAA will allow AIP funds to be
used for the one-time (initial) acquisition of airport-owned software
applications that are specifically designed to support airport SMS
implementation. Other requirements and limitations may apply, which are
outlined in the AIP Handbook.
    However, experience from the pilot studies has also shown that
smaller, less complex airports should be readily able to manage the
associated steps, processes, and data using existing off-the-shelf,
end-user spreadsheet or database software. Regardless of the airport's
size and complexity, costs associated with staffing, training, or
safety promotion are also not AIP eligible.
    As always, when an airport sponsor requests AIP funding, the FAA is
required to review the existing conditions, the available alternatives,
and the criteria by which the sponsor has concluded that a particular
solution is the preferred course of action. That is why early
coordination with the local FAA Airports District Office or Regional
Airports Division Office is crucial.

K. Interoperability

    The FAA is engaged in numerous efforts to require and incorporate
SMS concepts into industry and its own operations. The practice and
results of these efforts appear to be meeting in the airport
environment. For example, besides this proposed rule, the FAA recently
published a final rule for air carriers operating under part 121, which
also requires hazard reporting and proactive hazard assessment. See 80
FR 1306 (January, 8, 2015). Furthermore, the FAA's own internal efforts
to incorporate formalized hazard assessment into many of its operations
and approvals will impact part 139 certificate holders and part 121 air
carriers. Recognizing the interoperability of these efforts would be
important for the continued success of SMS, the FAA requested comment
on the interaction between the proposed rule and potential future
rulemakings.
    The majority of commenters raised issues regarding interoperability
and how all of the various SMS efforts and requirements will work
together, avoiding duplication and conflict. These issues can be
grouped into three themes:
    1. Reporting of hazards, overlap of responsibility and duplication
of efforts: Seven commenters, including five certificate holders, one
association, and one air carrier, questioned which hazard reporting
system should a person use to report an observed airport hazard when
both an air carrier (or multiple carriers) and the certificate holder
may have an interest. One commenter noted that air carriers also may be
reluctant to share safety information with airports because of data
protection issues. Additionally, reporting into two separate reporting
systems and separate analyses would be a duplication of effort that is
inconsistent with SMS philosophy.
    2. Hazard assessments for hazards shared by multiple regulated
entities: Twenty commenters, including fifteen certificate holders,
three associations, one air carrier, and one anonymous commenter,
questioned which entity has responsibility for performing the hazard
assessment on shared hazards and by which rules the assessment is
performed. One commenter noted there may be divergent interests among
the entities as to how to mitigate a particular hazard. For example, an
airport may not want to bear a costly mitigation when another possible
mitigation may be more acceptable to it. The airport and air carrier
could perform individual assessments, but that result would duplicate
efforts and be contrary to cooperation between the entities, both of
which are inconsistent with SMS philosophy. Additionally, the airport
and the air carrier may have different methodologies for assessing risk
(such as different risk matrices). One commenter also raised the issue
of which risk matrix would be used and how to resolve disputes over
which matrix to use (e.g., different severity and likelihood categories
and definitions).
    Another commenter further questioned how the FAA's internal SMS
efforts within the Air Traffic Organization, Office of Aviation Safety,
and Office of Airports will interact with certificate holders. For
example, one certificate holder believed that conflicts between the
various efforts could be complex and unavoidable and stated that the
FAA needs to address resolution including hierarchy and authority in
the final rule.
    3. Differing definitions and standards: Two commenters, including
one certificate holder and one anonymous commenter, expressed concern
regarding differing definitions and standards throughout the various
SMS efforts. One certificate holder believed the definitions should be
consistent across the agency so that everyone speaks the same language.
Examples of inconsistent definitions include the terms hazard, risk,
risk control, and risk mitigation. One commenter raised concerns that
because each entity has the flexibility to set its own severity and
likelihood categories and definitions, it will be difficult to
understand what these different definitions mean.
    With regard to reporting hazards and overlap of responsibility, the
FAA has taken efforts to reduce conflict and duplication but
acknowledges that some overlap may occur. Regardless of overlap,
certificate holders would be expected to comply with the applicable SMS
requirements. Certificate holders would address the hazards reported to
them and also conduct SMS promotion activities to encourage reporting.
    For example, an airline ramp worker identifies a safety issue in
his work area on the ramp. The worker reports this issue to both the
airport and airline's hazard reporting system. In this scenario, both
the airport and the airline have a responsibility for reviewing the
reported safety issue. However, their responsibility for analyzing and

possibly mitigating the issue depends on who holds overarching
responsibility for the issue and/or its mitigation. If it is something
that only the airport can take action to prevent or mitigate, the
airline would forward that information to the airport for action.
Similarly, if only the airline could take action, the airport would
forward the report to the airline.
    While the FAA cannot regulate relationships between certificate
holders and other entities, the FAA can include best practices and
lessons learned to help foster an environment conducive to sharing
hazard information across industry groups. Although there may be two
separate regulations addressing SMS, the FAA encourages air carriers
and airports to communicate with one another when hazards are
identified through their respective SMS procedures and processes that
may be addressed by the air carrier or airport. For example, if an air
carrier's employee identifies a hazard on the movement area of the
airport, the air carrier employee would likely report the hazard
through the air carrier's SMS employee reporting system. Once reported,
the FAA recommends that the air carrier notify the airport of the
identified hazard so the airport is aware of the issue and may analyze
the risk accordingly. In addition, the air carrier may also opt to
analyze the risk of the hazard and determine if it warrants any sort of
mitigation through the revision or further development of the air
carrier's procedures. This type of communication would serve to ensure
that hazards, whether unique to the air carrier, or more systemic to
the airport, are being addressed effectively by all parties.
    The FAA expects that information sharing will increase over time as
entities become more familiar with SMS and its benefits. Furthermore,
the FAA is continually evaluating the implementation of SMS and is
prepared to address issues as they arise.
    With regard to differing definitions and standards, the FAA
harmonized definitions in the rules where possible. However, some
definitions are different based on the different operating
environments. Some definitions may evolve over time based on lessons
learned.
    This proposal harmonizes with the part 121 SMS rule definition for
hazard and risk. These definitions would be added to Sec.  139.5.
    The definition for risk mitigation in this SNPRM does not harmonize
with the part 121 risk control terminology. ICAO Annex 14 and the FAA
Office of Airports' internal SMS policy use the term mitigate when
discussing the fifth step of hazard assessment under SRM. The FAA has
concluded the term mitigate is straightforward and aligns with other
guidance certificate holders have received related to FAA SMS
initiatives. To change terminology here runs the risk of confusion.
    Relative to the separate standards for air carriers, the FAA notes
that both SMS rules are structured in accordance with the ICAO SMS
framework. However, the FAA recognizes that there are inherent
differences in the operation of an airport and of an air carrier. Based
on a review of these differences, the FAA determined that the
rulemakings should proceed as separate projects.
    A certificate holder may want to consult with its tenants,
including air carriers, as it develops its implementation plan and SMS
manual and/or ACM update. While not required to coordinate or
incorporate each other's processes, the airport could benefit from the
experiences of other entities that have already implemented SMS or
other risk-based approaches.
    The FAA continues to explore options to enhance interoperability
within the airport environment. Technology solutions used by both the
air carriers and airports could promote information sharing, enhanced
communications, and provide cost savings. The FAA is open to
suggestions from commenters on the use of existing systems to enhance
interoperability.

L. FAA Oversight

    The NPRM included a lengthy discussion on the FAA's role and
oversight of certificate holders under the proposed SMS requirements.
Emphasis was placed on the point that SMS is not a substitute for
compliance with existing regulations or FAA oversight activities. The
FAA provided examples of possible inspector activities to verify
compliance with the requirements.
    Fourteen commenters, including associations, certificate holders,
and one consultant, commented on the FAA's oversight activities related
to the proposal. Comments focused on three main areas: compliance and
enforcement, inspections, and training.
    Three associations and two certificate holders expressed concern
about how the FAA would enforce compliance with the new SMS
requirements and requested the FAA include measures or tools that a
certificate holder or the FAA would use to ensure compliance with SMS
requirements. While acknowledging that the FAA stated inspectors would
not second guess certificate holder decisions, but would assess
compliance with SMS-approved processes and procedures, one certificate
holder requested the FAA include this language in the regulatory text.
The other certificate holder expressed concern regarding the potential
for ``double jeopardy,'' whereby a violation of an airport's SMS
procedures as detailed in the SMS manual or ACM could also result in a
violation of existing part 139 requirements. An association wanted the
FAA to define which FAA office has responsibility for compliance and
oversight and suggested it be a headquarters function to ensure
consistent enforcement. A consultant argued that any enforcement action
is inconsistent with the SMS philosophy of a non-punitive approach to
safety.
    An SNPRM is not a place to establish compliance and enforcement
policies and procedures, which must be able to be adapted as conditions
dictate. Nevertheless, the FAA believes it would be helpful to discuss
some general expectations about inspections in an SMS environment.
    The FAA does not plan to initially alter its inspection methodology
if an SMS rule is adopted. Inspectors would continue to review and
conduct annual, surveillance, and special inspections of part 139
certificate holders to determine whether the certificate holder is
complying with applicable statutory and regulatory requirements. The
FAA agrees that adding SMS-related items to an inspection would add
time. However, the FAA believes that SMS is a vital means to enhance
safety into the future and is prepared to absorb those resource costs.
    In general, seven commenters wanted more clarification on how an
inspector's review of SMS documentation or processes would fit into the
existing part 139 annual inspection. Three certificate holders
questioned how inspectors would inspect for SMS-related items in an
already budget- and time-restricted inspection environment and what