[Federal Register Volume 69, Number 27 (Tuesday, February 10, 2004)]
[Rules and Regulations]
[Pages 6380-6436]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-2255]
[[Page 6379]]
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Part II
Department of Transportation
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Federal Aviation Administration
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14 CFR Parts 121 and 139
Certification of Airports; Final Rule
Federal Register / Vol. 69, No. 27 / Tuesday, February 10, 2004 /
Rules and Regulations
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DEPARTMENT OF TRANSPORTATION
Federal Aviation Administration
14 CFR Parts 121 and 139
[Docket No. FAA-2000-7479; Amendment Nos. 121-304, 135-94]
RIN 2120-AG96
Certification of Airports
AGENCY: Federal Aviation Administration (FAA), DOT.
ACTION: Final rule.
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SUMMARY: This rule revises the airport certification regulation and
establishes certification requirements for airports serving scheduled
air carrier operations in aircraft designed for more than 9 passenger
seats but less than 31 passenger seats. In addition, this rule amends a
section of an air carrier operation regulation to conform with changes
to airport certification requirements. This rule is necessary to ensure
safety in air transportation at all certificated airports.
DATES: Effective June 9, 2004.
FOR FURTHER INFORMATION CONTACT: Linda Bruce, Airport Safety and
Operations Division (AAS-300), Office of Airport Safety and Standards,
Federal Aviation Administration, 800 Independence Avenue SW.,
Washington, DC 20591; telephone: (202) 267-8553; or e-mail:
[email protected].
SUPPLEMENTARY INFORMATION:
Availability of Rulemaking Documents
You can get an electronic copy using the Internet by:
(1) Searching the Department of Transportation's electronic Docket
Management System (DMS) web page (http://dms.dot.gov/search);
(2) Visiting the Office of Rulemaking's Web page at http://www.faa.gov/avr/arm/index.cfm; or
(3) Accessing the Government Printing Office's Web page at http://www.access.gpo.gov/su_docs/aces/aces140.html.
You can also get a copy by submitting a request to the Federal
Aviation Administration, Office of Rulemaking, ARM-1, 800 Independence
Avenue SW., Washington, DC 20591, or by calling (202) 267-9680. Make
sure to identify the amendment number or docket number of this
rulemaking.
Anyone is able to search the electronic form of all comments
received into any of our dockets by the name of the individual
submitting the comment (or signing the comment, if submitted on behalf
of an association, business, labor union, etc.). You may review DOT's
complete Privacy Act statement in the Federal Register published on
April 11, 2000 (Volume 65, Number 70; Pages 19477-78) or you may visit
http://dms.dot.gov.
Small Business Regulatory Enforcement Fairness Act
The Small Business Regulatory Enforcement Fairness Act (SBREFA) of
1996 requires FAA to comply with small entity requests for information
or advice about compliance with statutes and regulations within its
jurisdiction. If you are a small entity and you have a question
regarding this document, you may contact its local FAA official, or the
person listed under FOR FURTHER INFORMATION CONTACT. You can find out
more about SBREFA on the Internet at http://www.faa.gov/avr/arm/sbrefa.htm, or by e-mailing us at [email protected].
Background
Regulatory History
Since 1970, the FAA Administrator has had the statutory authority
under title 49, United States Code (U.S.C.) 44706 to issue Airport
Operating Certificates (AOCs) to airports serving certain air carriers
and to establish minimum safety standards for the operation of those
airports. The FAA uses this authority to issue requirements for the
certification and operation of certain land airports through part 139
of title 14, Code of Federal Regulations (14 CFR part 139).
This statutory authority was limited to those land airports serving
passenger operations of an air carrier that are conducted with an
aircraft designed for at least 31-passenger seats. In response to
recommendations made by the General Accounting Office (GAO) in 1987 and
the National Transportation Safety Board (NTSB) in 1994, the Secretary
of Transportation sought authority from Congress to broaden the FAA's
authority to certificate airports, and the FAA's authority was
broadened when Congress passed the Federal Aviation Reauthorization Act
of 1996 (Public Law 104-264), amending 49 U.S.C. 44706. This amendment
granted the FAA the authority to certificate airports serving scheduled
air carrier operations conducted in aircraft with more than 9 passenger
seats but less than 31 passenger seats, except in the State of Alaska.
There was no change to the FAA's existing authority to regulate
airports serving air carrier operations using aircraft with more than
30 seats.
In April 2000, Congress further mandated, in the Wendell H. Ford
Aviation Investment and Reform Act for the 21st Century (Air-21; Public
Law 106-181), that the FAA issue a Notice of Proposed Rulemaking (NPRM)
within 60 days and a Final Rule 1 year after the close of the NPRM
comment period implementing 49 U.S.C. 44706(a)(2), relating to the
issuance of AOCs for small scheduled passenger air carrier operations.
The FAA implemented its new authority on airport certification by
publishing an NPRM on June 21, 2000 (65 FR 38636). This NPRM proposed
to revise the current airport certification requirements in 14 CFR part
139 and to establish certification requirements for airports serving
scheduled air carrier operations in aircraft with more than 9 passenger
seats but less than 31 passenger seats. The NPRM also proposed a
conforming amendment to 14 CFR part 121. The public comment period was
originally scheduled to close on September 9, 2000, but was extended to
November 3, 2000, in response to several requests made by airport
operators and the State of Maine.
In the NPRM, the FAA proposed to revise certain outdated safety
requirements and require certification of airports not currently
certificated that serve scheduled air carrier operations conducted in
aircraft with more than 9 passenger seats but less than 31 passenger
seats. The proposal also clarified existing requirements, incorporated
existing industry practices, and responded to an outstanding petition
for rulemaking and certain NTSB recommendations.
Further, the FAA proposed to revise the existing airport
certification process to incorporate all airports covered by the
statute, including those serving scheduled, smaller air carrier
aircraft. Under this changed certification process, airports would be
reclassified into four new classes, based on the type of air carrier
operations served. Class I, II, and IV airports would be those that
currently hold AOCs and Class III would be those airports being newly
certificated.
Airports serving all types of scheduled operations of air carrier
aircraft designed for at least 31 passenger seats (large air carrier
aircraft), and any other type of air carrier operations, would be known
as Class I airports. These airports currently hold an AOC.
Airports that currently hold a Limited Airport Operating
Certificate would be known as either Class II or IV airports. The FAA
proposed that Class II airports would be those that serve scheduled
operations of small air carrier aircraft (aircraft designed for more
than 9
[[Page 6381]]
passenger seats but less than 31 passenger seats) and unscheduled
operations of large air carrier aircraft. Class IV airports would be
those that serve only unscheduled operations of large air carrier
aircraft.
As proposed, Class III airports would be those airports that serve
only scheduled operations of small air carrier aircraft and, as noted
above, would be required for the first time to be certificated under
part 139. As specified in the authorizing statute, proposed airport
certification requirements would not be applicable to airports located
in the State of Alaska that only serve scheduled operations of small
air carrier aircraft.
Similar to how the FAA currently certificates airports, the
proposal required airport operators choosing to be certificated under
part 139 to document their procedures for complying with part 139, as
well as with the safety and operational requirements. To accommodate
variations in airport layout, operations, air carrier service, and to
address other local considerations, the FAA proposed that compliance
procedures for the more burdensome requirements be tailored for each
airport operator.
Industry Participation
Through the Aviation Rulemaking Advisory Committee (ARAC), the FAA
sought industry input on regulatory and nonregulatory issues on the
certification of airports serving smaller air carrier operations. The
FAA asked the ARAC to consider alternatives to minimize the operational
burden on smaller airports, including options for aircraft rescue and
firefighting (ARFF) services. The FAA also suggested that the ARAC
conduct a survey of affected airports to gauge the impact of any
proposed requirement.
In 1995, the ARAC appointed the Commuter Airport Certification
Working Group to complete these tasks. This working group comprised
representatives from industry trade and union associations, including
Air Line Pilots Association (ALPA), Aircraft Owners and Pilots
Association (AOPA), American Association of Airport Executives (AAAE),
National Air Transportation Association (NATA), National Association of
State Aviation Officials (NASAO), and Regional Airline Association
(RAA). The FAA and Landrum and Brown, an airport planning and
engineering consulting firm, also provided technical support.
However, after the passage of the Federal Aviation Reauthorization
Act of 1996, the FAA decided to consider exercising its new authority
to regulate airports and asked the ARAC to immediately provide the FAA
a report on certifying airports serving small air carrier aircraft that
included draft regulatory language.
While the working group agreed on many issues, two members (ALPA
and NATA) disagreed with several of the group's recommendations on
regulatory requirements, including marking and lighting, ARFF, and the
handling of hazardous substances and materials. Subsequently, in
February 1997, both the majority and minority views of the working
group, and those of individual workgroup members, were presented to the
FAA.
As noted in the NPRM, the FAA considered these positions in this
rulemaking. However, the decisions in this document are the FAA's.
Discussion of Comments
The FAA received 929 comments on the NPRM, of which 858 are similar
letters from individuals and organizations addressing concerns about
Centennial Airport in Greenwood, CO (see discussion on public charters
below). The remaining 72 commenters addressed part 139 and part 121
issues. These commenters included--
Air carriers: Eagle Canyon Airlines d.b.a.
Scenic Airlines, Era Aviation, and Champlain Enterprises d.b.a. U.S.
Airways Express.
Airport operators, including state and local
governments: Augusta State Airport (ME), Boone County Airport (AR),
Chautauqua County Airports Commission (NY), Cheyenne Airport (WY), City
of Alamogordo (NM), City of Phoenix (AZ), City of Show Low (AZ), City
and County of Twin Falls (ID), City of Yankton (SD), Clark County
Department of Aviation (NV), Clinton County Airport (NY), County of
Hill (MT), Dallas/Fort Worth Int'l Airport (TX), Dane County Regional
Airport (WI), Dawson Community Airport (MT), Fort Lauderdale--Hollywood
Int'l Airport (FL), Hancock County'Bar Harbor Airport (ME), Havre City-
-County Airport (MT), Garfield County (UT), Grant County Commissioners
(NM), Jamestown Airport Authority (ND), Kingman Airport Authority (AZ),
Lebanon Municipal Airport (NH), Manchester Airport (NH), Mercer County
Airport (WV), Metropolitan Airports Commission (MN), Miles City Airport
Commission (MT), Ocala Regional Airport (FL), Port Authority of New
York and New Jersey, Rutland Region Transportation Council (VT),
Sidney--Richland Airport (MT), Spencer Municipal Airport (IA), State of
Alaska, State of Hawaii, State of Iowa, State of Michigan, State of
Montana, State of Maine, State of New York, State of Vermont, State of
West Virginia, Williamson County Regional Airport (IL), and Yuma County
Airport Authority (AZ).
Representatives of employees: Air Line Pilots
Association, The Aircraft Rescue and Fire Fighting Working Group,
International Association of Fire Chiefs, Coalition of Airline Pilots
Association, International Association of Fire Fighters, and
International Brotherhood of Teamsters.
Associations: Aircraft Owners and Pilot
Association, Airports Council International-North America, American
Association of Airport Executives, National Air Transportation
Association, National Association of State Aviation Officials, National
Business Aviation Association, National Fire Protection Association,
Northeast Chapter of American Association of Airport Executives,
Regional Airline Association, and the Wyoming Airport Operators
Association.
The National Transportation Safety Board.
U.S. Department of Agriculture.
U.S. Department of Defense.
Individuals.
Except for issues about public charters, commenters support the new
structure of the regulations. However, commenters were evenly divided
on their support or opposition to the proposed requirements for
airports serving smaller air carrier operations. As anticipated,
airport operators express concerns over the increased burden and cost
impacts of the proposed rule. They are particularly concerned about the
costs to comply with proposed ARFF requirements. Conversely, the
firefighter and pilot labor organizations believe the proposal did not
go far enough.
Most operators of certificated airports did not comment on the
proposal. Of the 656 currently certificated airports (both civilian and
military airports), only 18 airport operators sent comments. Most of
these airport operators recommended changes to the proposal. Of the 37
proposed Class III airports (airports that are to be newly
certificated), 14 airport operators sent comments. Although all of
these airport operators recommend changes to the proposal, only one
supports certifying proposed Class III airports.
The final rule is adopted, as modified and detailed below. In
adopting the final rule, the FAA has tried to strike a balance and has
made changes to the final rule in response to the comments. Comments
specific to a section are discussed below in the section-by-section
analysis, following the discussion of Public Charters and General
Comments.
[[Page 6382]]
General Comments
Public Charters
Comment: The FAA received 858 similar letters from individuals and
organizations addressing concerns about Centennial Airport in Greenwood
(near Denver), CO. These commenters state the NPRM does not consider
legislation amending 49 U.S.C. 41104 (Air-21; Public Law 106-181). The
legislation, in part, forbids air carriers, including indirect air
carriers, from providing regularly scheduled charter air transportation
to or from uncertificated airports with aircraft designed for more than
9 passenger seats (49 U.S.C. 41104(b)). The apparent interest of these
commenters, though not stated specifically in the form letter, but made
clear by other comments, is to ban regularly scheduled charter
operations from serving Centennial Airport, which is not now
certificated under part 139.
FAA Response: The comments received address an issue that is beyond
the scope of this rulemaking and a matter not regulated by the FAA.
Originally, Congress included an amendment to Public Charter Operations
(49 U.S.C. 41104) in the Air-21 legislation. However, Section 41104(b)
is directed to the air carriers' economic authority, which is regulated
and administered by the Office of the Secretary within the Department
of Transportation (DOT). In response to the concerns raised by these
commenters and others, Congress passed further legislation, the Airport
Security Improvement Act of 2000 (Public Law 106-528, 11/22/2000), in
which technical amendments were made to this section. The DOT has
determined that no implementing regulations are required as this is a
stand-alone statutory requirement that became effective December 22,
2000.
However, to ensure that air carriers--who are governed by 14 CFR
121.590, Use of Certificated Land Airports in the United States--are
aware of the statutory requirements of 49 U.S.C. 41104(b), the FAA has
added an advisory note explaining those provisions in the flush
paragraph following the amendatory language of 14 CFR 121.590 and 14
CFR 139.5. For further questions on public charter operations conducted
under 14 CFR part 380, contact DOT, Office of Aviation Analysis, at
(202) 366-5903.
General Comments on Part 139
As noted in the above section, many of the comments received from
airport operators express concern regarding the cost to comply with
proposed ARFF requirements, particularly at proposed Class III
airports. While specific comments on ARFF requirements are addressed in
the section-by-section discussion below, the FAA has made several
changes in the final rule that affect ARFF cost concerns and warrant a
general discussion on the matter.
To standardize ARFF at certificated airports, the FAA proposed that
all certificated airports serving both scheduled and unscheduled
operations be required to comply with all ARFF requirements. However,
the FAA agrees that requiring all airports to comply with all ARFF
requirements may pose a substantial cost for airports that do not
currently provide minimum ARFF coverage or do so only to cover an
occasional unscheduled air carrier flight. This would include both
currently certificated airports and airports that would be newly
certificated (Class III airports).
The FAA is directed by the authorizing statute (Title 49, U.S.C.
44706) to issue requirements for the certification and operation of
airports. The statute requires the FAA to establish minimum safety
standards for certificated airports that provide for the operation and
maintenance of adequate safety equipment, including firefighting and
rescue equipment. The authorizing statute also allows the FAA to exempt
certain airport operators from all or some of ARFF requirements
(certificated airports that have less than one-quarter of one percent
of the total number of annual passenger boardings) and allows the FAA
to adopt regulatory alternatives for commuter airports (Class III
airports) that are ``least costly, most cost-effective or the least
burdensome'' but provide comparable safety at all certificated
airports.
The FAA has revised part 139 to better exercise its statutory
authority to provide appropriate exemptions from some or all prescribed
ARFF requirements and allow for alternative means of compliance for
certain airports (Class III airports). While the FAA believes that a
single set of airport certification standards promote the consistent
application of safety measures, the use of statutory exemptions and
alternative compliance measures that are monitored closely by the FAA
will ensure that ARFF requirements are appropriate for the airport size
and type of air carrier operations.
As adopted, this rule requires all certificated airports to provide
some level of ARFF service. Where appropriate, the FAA will provide
limited exemptions on a case-by-case basis for airports with infrequent
or smaller air carrier operations from some or all prescribed ARFF
requirements. In addition, the alternative ARFF compliance measures
have been established for Class III airports. This is intended to
provide Class III airports relief. The FAA recognizes that it would be
too burdensome to require these airports to provide the same level of
ARFF services required of airports serving large air carrier
operations.
The FAA also received the following general comments on the
proposal:
Comment: A commenter, a Class I airport operator, states that its
facility is already fully compliant with the proposal and would
therefore not be affected by the NPRM.
FAA Response: As mentioned in the NPRM preamble's ``General
Discussion of the Proposal'' section, many airport operators will need
to do little to comply with revised part 139 requirements. However,
some airport operators will be required to revise their certification
manuals to comply with the adopted changes to existing requirements.
Other operators may be required to implement certain safety measures on
a more frequent basis if they serve small air carrier operations that
do not occur concurrently with large air carrier aircraft operations.
Comment: Two commenters support the proposal. One commenter, the
National Transportation Safety Board, states that the promulgation of
the proposal will ``enhance the level of safety at airports served by
commuter airlines.'' The other commenter states that the inclusion of
airports serving smaller air carrier operation in part 139 is a
``viable means to increase air travel safety.''
FAA Response: The FAA believes this rule will enhance safety in air
transportation.
Comment: Five commenters oppose the adoption of certification
requirements for airports serving scheduled operations of small air
carrier aircraft. They state that such requirements are unnecessary as
these airports have a good safety record and their implementation would
be prohibitively expensive. One of these commenters states that the
current part 139 is enough to ensure safety in air transportation.
FAA Response: The FAA disagrees that the proposed changes to part
139 are unnecessary. The FAA has determined that the changes to part
139 are necessary to ensure safety in air transportation at all covered
airports. This was not based on the fact that some airports have a poor
safety record (no category of airport has a poor safety record); rather
the changes are intended to provide, to the extent possible, safety
[[Page 6383]]
in air transportation at all airports covered by the statute and part
139.
The FAA believes that airports serving small air carrier operations
will not have difficulty complying with most part 139 requirements.
While airport operators that choose to be certificated under part 139
will be required to prepare a tailored Airport Certification Manual
(ACM) detailing how they will comply with part 139 safety and
operational requirements, these airport operators will be allowed
flexibility in complying with the requirements, including ARFF
requirements. In tailoring an ACM, the FAA will consider with each
airport operator variations in airport layout and air carrier
operations served.
In addition, the FAA will assist an airport operator in obtaining
Federal funds to be used to comply with part 139 requirements. If
compliance with part 139 is still too burdensome, particularly where
the local community resources are limited, the airport operator may
petition the FAA for an exemption, as specified under the authorizing
statute. The FAA also has established alternative compliance measures
in the final rule for Class III airports (see the section-by-section
analysis of Sec. 139.111, Exemptions and Sec. 139.315, Aircraft rescue
and firefighting: Index determination).
Comment: Two commenters state that Title V, Section 518, of the
Wendell H. Ford Aviation Investment and Reform Act for the 21st Century
(Air-21; Public Law 106-181), titled ``Small Airport Certification,''
appears to have resulted in this NPRM. However, other provisions of the
act appear to undermine the policy on air service to rural areas and
the Essential Air Service (EAS) program because rural communities lack
sufficient resources to comply with the provisions of the proposed
rule.
FAA Response: The FAA disagrees. Section 518 directs the FAA to
issue an NPRM to implement the section of the authorizing statute (49
U.S.C. 44706(a)(2)) allowing the FAA to certificate certain airports
serving small air carrier operations. Section 518 does not specify
safety requirements and standards that the FAA must propose for the
certification of these airports and does not conflict with those
sections of Air-21 that set aside Federal funds for air service to
rural communities. In fact, Air-21 requires Airport Improvement Program
(AIP) funds to be set aside for costs related to the certification of
airports serving small air carrier operations. As of the date of the
publication of this final rule, the FAA is required to set aside $15
million of AIP funds for such costs each year for 4 fiscal years
following the effective date of this rule (see Section 128 of Air 21).
In meeting the requirements of Section 518, the FAA chose to
certificate these airport operators in a manner similar to that used
for currently certificated airports. However, the FAA recognizes that
in some instances the cost to comply with certain certification
requirements may be substantial for these smaller airports. The FAA
will work with airport operators to establish compliance appropriate
for the size of airport and types of operations served to ensure that
they are the least costly and burdensome, but still provide safety in
air transportation.
Comment: Six commenters, including operators of airports that are
likely to be Class III airports, state that existing airport revenue
and operating income cannot cover the initial and recurring costs
associated with part 139. These commenters request the FAA provide a
permanent source of funding to help airport operators in complying with
the new requirements or exempt these airport operators from the more
costly requirements, such as ARFF.
Several of these commenters state that federally mandated safety
requirements should be fully funded. In the absence of such funding,
these commenters believe airport operators should be granted exemptions
if they can demonstrate an unreasonable cost, burden, or that the
requirements are impractical. One of these commenters also suggests
that AIP funds set aside for small airports be used by small airports
to cover costs associated with the proposal.
FAA Response: The FAA partly agrees. In some instances, the cost to
comply with certain part 139 requirements could be too burdensome for
airport operators serving small air carrier operations. In such cases,
the FAA will work with the airport operator in developing and tailoring
an ACM to achieve safety in air transportation at that airport.
Further, the FAA will assist the airport operator in obtaining Federal
funds, as appropriate. In addition, the FAA has the statutory authority
to grant exemptions from part 139 requirements, including ARFF
requirements, that would be too costly, burdensome, or impractical and
has established alternative compliance measures for Class III airports
(see the section-by-section analysis of Sec. 139.111, Exemptions and
Sec. 139.315, Aircraft rescue and firefighting: Index determination).
Most airports that would be newly certificated under this rule
(Class III airports) have accepted Federal funds and are required by
grant assurances to comply with the FAA standards. As noted in the
proposal (65 FR 38664), all airports that are likely to be Class III
airports have received Federal funds for capital developments, safety
equipment, and in certain circumstances, airport maintenance. Between
1982 and 2002, operators of proposed Class III airports received $207
million in Federal funds.
With this infusion of Federal funds, most proposed Class III
airports already comply with many part 139 requirements. The standards
used to comply with grant assurances are the standards used to comply
with part 139. For those compliance items not eligible for Federal
funding, the FAA will work with the airport operator or consider
granting exemptions, as described earlier.
The FAA does not have the authority to provide a permanent source
of funding. This authority remains a matter for Congress.
Although legislative changes that may affect AIP and EAS funding
have been proposed by Congress as of the date of this publication,
Congress has already directed the FAA in Air-21, as discussed above, to
set aside $15 million of AIP funds each year for 4 fiscal years
following the effective date of this rule to help airport operators
meet the requirements of this rule (49 U.S.C. 47116(e)). Congress also
has increased EAS funding, which may be used to offset the costs
incurred by small air carriers as the result of this rulemaking.
Otherwise, the FAA has limited discretion in distributing Federal funds
to airport operators under the authorizing statute. Without
legislation, the FAA is unable to provide the permanent funding
suggested by the commenters.
Comment: A commenter, an operator of an airport likely to be a
Class I airport under the rule, states that initial costs to comply
with the proposed rule will be eligible for AIP funds. However, the
commenter further notes that the long-term costs of compliance, such as
maintenance and labor, will be the airport operator's responsibility
and may burden the local community. This commenter notes that the
certification of proposed Class III airports could be costly, but it
will enhance the safety of aviation and airports in the Federal
transportation system.
FAA Response: The FAA agrees.
Comment: Many of the commenters that oppose the proposal state that
it will have a negative economic impact on air carrier service at
smaller airports.
[[Page 6384]]
These commenters believe the implementation of the proposal will result
in the loss of air carrier service because the cost to comply is to too
high to be absorbed by the local community and the airport's tenant air
carriers. This is particularly true of air carriers that receive
subsidies through the Department of Transportation's EAS program.
Some of these commenters provided economic and operational cost
data to support their positions.
FAA Response: The FAA recognizes that the regulations may have an
adverse economic effect on some airports. As previously stated, the FAA
will assist the airport operator in developing ACM's that meet the
intent of the rule and consider unique and local airport issues,
including economic issues.
Congress authorized the FAA to certificate certain airports. The
authorizing statute focuses on safety in air transportation, not
economics. However, the authorizing statute does direct the FAA to
prepare a report on the economic impact of this final rule on air
carrier service. The FAA considered the economic and operational cost
data provided by the commenters in preparing the regulatory evaluation
and the Report to Congress required by the authorizing statute. Both
documents are available in the regulatory docket.
Comment: A commenter expresses concerns over the economic impact
that the proposal, if adopted, will have on general aviation. In
particular, the commenter expresses concern that added airport
certification costs will be passed onto general aviation users, most of
whom do not want or need the extra services.
The commenter suggests that through ``flexibility, creative means,
and by facilitating compliance,'' the FAA should retain a critical role
in lessening the adverse economic impact the proposal will impose on
certain airports. The commenter believes this can be achieved if the
FAA is flexible in carrying out its authority to certificate airports
and issues further policy and guidance specifying compliance
alternatives to help airport operators comply with part 139 in a cost-
effective manner.
This commenter also states that several part 139 compliance issues
are a cause of contention for general aviation and that additional
rulemakings and policy must be developed before a final rule is
published. In particular, the commenter requests compliance guidance
for ARFF equipment, wildlife hazard management, and fueling
requirements, as well as guidance on the exemption process, including
alternatives specified in the authorizing statute.
FAA Response: The FAA disagrees. Although all airport users share
the benefits of part 139 compliance, the cost of part 139 compliance is
typically passed onto air carriers and their passengers.
While part 139 is for the benefit of certain air carrier operators,
the cost to comply with part 139 ultimately results in the maintenance
and improvement of the airport that benefits all airport users. General
aviation aircraft also use, at most airports, areas used by air carrier
aircraft, such as runways, taxiways, and ramps. Such areas are usually
better maintained and equipped than similar areas at airports serving
only general aviation aircraft. General aviation aircraft operators
also benefit from emergency response services, daily safety
inspections, and airport condition reporting provided at airports
certificated under part 139. The FAA believes general aviation aircraft
operators will benefit from the part 139 requirements.
Airport operators that receive Federal funds are prohibited under
grant assurances from using revenue generated by the airport for non-
airport purposes. In addition, they may not divert such revenue to non-
airport accounts, such as the general fund of the local government that
owns the airport. However, the use of airport revenues generated from
general aviation users to comply with part 139 requirements, such as
ARFF response provided by off-airport sources, would not be a violation
of the airport's grant assurances.
The FAA agrees that in some instances additional compliance
guidance may be useful, particularly for airport operators seeking
certification for the first time. However, the FAA believes additional
rulemakings are not necessary because there is already a process in
place for providing airport operators compliance guidance that includes
advisory circulars (ACs) and CertAlerts.
Comment: A commenter, a proposed Class I airport operator, supports
the proposed rule, with the exception of ARFF requirements. The
commenter believes the cost of providing ARFF coverage is considerable
and would result in termination of air carrier service should airport
operators pass ARFF costs on to tenant air carriers. The commenter
recommends that requirements for proposed Class III airports only focus
on accident prevention, including more emphasis on aircraft operating
and communication procedures at nontowered airports. The commenter
suggests that an additional airport classification be created for
nontowered airports that serve scheduled air carrier operations and
requires enhanced aircraft operating and communication procedures,
including the use of the Common Air Traffic Advisory (CTAF) frequency.
FAA Response: The FAA agrees in part. Both the existing and
proposed part 139 requirements place a greater emphasis on accident
prevention than accident mitigation. As stated in the proposal at 65 FR
38664, most part 139 requirements are intended to reduce the
possibility of an accident by providing a safe and standardized
operating environment. While requiring airport operators serving small
air carrier operations to comply only with accident prevention measures
would be the least costly regulatory approach, the FAA believes that
some level of accident mitigation, including ARFF, still is necessary
to enhance safety in air transportation at all covered airports.
The FAA agrees that the cost of complying with certain part 139
ARFF requirements would be too burdensome for some airport operators
serving small air carrier operations. In such instances, the FAA will
use its statutory authority to consider exemptions from part 139
requirements, including ARFF requirements, that would be too costly,
burdensome, or impractical and has established alternative compliance
measures for Class III airports (see the section-by-section analysis of
Sec. 139.111, Exemptions and Sec. 139.315, Aircraft rescue and
firefighting: Index determination).
The FAA partly disagrees with the recommendation to change part 139
to require additional aircraft operation and communication procedures
at nontowered airports. Such air traffic control and flight
communication procedures go beyond the scope of part 139 and the
proposal. However, the FAA has made changes to part 139 to require
personnel at non-towered airports (or during periods when an air
traffic control tower is closed) to monitor CTAF when in movement areas
and safety areas (see section-by-section analysis of Sec. 139.319,
Aircraft rescue and firefighting: Operational requirements.
Comment: A commenter notes that the proposal states that AIP funds
are available for capital costs associated with the implementation of
the proposed rule. The commenter states that such funds are limited,
and many operating and maintenance costs are not AIP eligible. The
commenter believes that additional operating and
[[Page 6385]]
maintenance costs associated with the proposal will be burdensome to
smaller airports and will result in these airports being poorly
operated.
FAA Response: The FAA partly agrees. The commenter is correct in
asserting that AIP funds are limited. As discussed in the proposal at
65 FR 38664, most operating and maintenance costs associated with part
139 are not eligible for Federal funds.
AIP funds may be used to purchase safety equipment needed to comply
with part 139 requirements only under two situations. First, the
equipment is required under regulation, or second, the FAA has
determined that this equipment will contribute significantly to the
safety or security of persons or property at an airport (see the
section-by-section analysis of Sec. 139.109, Duration of certificate).
In some instances, administrative costs associated with preparing
and documenting operating procedures required under part 139 may be AIP
eligible if such efforts result in a capital improvement project. For
example, the cost to develop a wildlife hazard management plan may be
eligible if the plan requires the installation of a fence or habitat
modification. In addition, some maintenance costs associated with
pavement and lighting are AIP-eligible for airports that serve less
than 10,000 annual enplanements.
The FAA disagrees that the cost associated with the implementation
of this rule will lead to ``poorly operated'' airports. Instead, the
FAA believes that the implementation of the proposal will ensure the
consistent application of safety measures. The FAA will work with
airport operators to tailor part 139 requirements to individual
airports and will exercise its statutory authority to consider
exemptions from part 139 requirements, if appropriate. The exemption
process is discussed in detail under the section-by-section analysis of
Sec. 139.111.
Comment: A commenter recommends that the FAA study the benefit of
building and staffing an air traffic control tower at proposed Class
III airports. The commenter believes this would be a more proactive
response to safety concerns than implementing the proposal.
FAA Response: The FAA disagrees. Installation of air traffic
control towers will not address many accident prevention measures. The
potential for aircraft collisions with ground obstructions (such as
wildlife, construction, and maintenance equipment) and certain airspace
obstructions can be reduced if an airport operator complies with part
139 safety requirements. Further, compliance will reduce many of the
uncertainties and miscommunications that can cause accidents by
ensuring airport facilities (i.e., pavement, lighting, markings, and
signs) are available, consistent from airport to airport, and properly
maintained.
Comment: Several commenters recommended that the FAA adopt the ARAC
majority report rather than implement the proposal.
FAA Response: The FAA agrees in part. As stated in the proposal at
65 FR 38638, the FAA did consider the ARAC majority report, including
recommended rule language, as discussed in the proposal's Section-by-
Section Analysis that follows. In many instances, the FAA used the
majority's recommended rule language and supporting data. However, the
FAA did not adopt the entire majority report for several reasons.
First, the majority report opposed regulating airports serving
scheduled operations of small air carrier aircraft and in many
instances, recommended regulatory language that would not ensure safety
at all covered airports. Second, the majority report recommended rule
language that was intended for a separate rulemaking for small air
carrier airports rather than changing existing part 139 requirements.
However, this did not take into account airports with mixed air carrier
operations. Third, the FAA determined that the majority report based
many of its recommendations on incorrect assumptions about existing
part 139 requirements and incorrect cost data.
Comment: A commenter recommends an alternative approach to
regulating airports serving small air carriers if the FAA chooses not
to adopt the ARAC majority position. This alternative would only
require these airport operators to coordinate an emergency response
plan with local government agencies and to acquire emergency response
equipment with AIP funds. Emergency equipment purchased with AIP funds
would be based with the appropriate emergency response personnel.
FAA Response: The FAA partly disagrees. The FAA believes that both
risk reduction measures and accident mitigation measures, including an
emergency response plan, are necessary to ensure safety in air
transportation at airports covered by the statute.
The actual location and use of emergency equipment purchased with
AIP funds and airport revenue is restricted by law. The FAA provides
Federal funding for emergency equipment for airport use only. Title 49,
U.S.C. 47133, and the FAA Policy and Procedures Concerning the Use of
Airport Revenue (64 FR 7696) restrict the use of airport revenue to
airport purposes. Consequently, equipment acquired with airport revenue
must be used primarily for airport purposes.
Section-by-Section Analysis
Section 121.590 Use of Certificated Land Airports in the United States
Proposal: The existing language of Sec. 121.590 was modified to
conform to the proposed changes made to part 139. The existing
requirements for air carriers operating aircraft designed for at least
31 passenger seats were not changed.
Added to this section was the proposed requirement for air carriers
who conduct scheduled passenger-carrying operations with airplanes
designed for more than 9 passenger seats but less than 31 passenger
seats to operate at part 139 airports in the United States, except in
the state of Alaska. Also added to this section was the proposed
requirement restricting air carrier passenger-carrying operations to
those airports with the appropriate part 139 airport classification
(Classes I-IV).
In addition, the FAA proposed to require that air carriers and
commercial operators who conduct passenger-carrying operations with
airplanes designed for at least 31 passenger seats or who conduct
scheduled passenger-carrying operations with airplanes designed for
more than 9 passenger seats but less than 31 passenger seats to conduct
those operations at airports operated by the U.S. Government only if
those airports meet the equivalent requirements of part 139.
Finally, provisions excepting certain air carriers from operating
into part 139 certificated airports were added to conform to proposed
changes to part 139.
Comment: A commenter questions why the proposal appears to require
supplemental operations in Alaska, using airplanes with more than 9
passenger seats but less than 31 passenger seats to follow the same
requirements for operating into a part 139 certificated airport that
apply to domestic or flag operations using the same type airplanes.
The commenter notes that 14 CFR 119.3 requires that operators who
conduct on-demand operations under part 135, and who also use the same
type airplanes in their domestic or flag operations under part 121,
must instead operate these airplanes under the supplemental operations
rules of part 121.
[[Page 6386]]
If the FAA intended supplemental operations in Alaska, using
airplanes with more than 9 and less than 31 passenger seats, to be
conducted at airports certificated under part 139, it would unduly
burden air carriers and airport operators, as well as the flying
public. The commenter, therefore, recommends that paragraph (c) of the
proposed section be changed to include supplemental operations.
FAA Response: The FAA agrees. The unintended consequence of the
proposal has been corrected in this final rule. The final rule makes it
clear in the reorganization of the requirements of the section and the
definitions in new paragraph (f) that supplemental operations conducted
with airplanes designed for fewer than 31 passenger seats (as
determined by the type certificate issued by a competent civil aviation
authority) are not required to be operated at a part 139 airport in the
United States.
Comment: A commenter recommends adding a provision to this section
that would prohibit the operation of all-cargo aircraft at or over
60,000 pounds maximum weight at airports that do not have adequate ARFF
capability in place at the time of operations.
FAA Response: The FAA finds that the commenter's recommended
revision to this section cannot be adopted because it is outside the
scope of the proposal.
Section as Adopted: This section is adopted with changes. The FAA
is revising proposed Sec. 121.590 based on comments received on Sec.
121.590 and comments received on proposed Sec. 139.101, General
requirements, on the compliance times needed for the development,
submittal, and approval of ACM's, including revisions thereto, as well
as a revision of the statutory provisions of 49 U.S.C. 44706 and
41104(b), by--
(1) Changing the title to add ``in the United States'';
(2) Reorganizing the provisions in paragraphs (a), (b), and (c) and
restating those provisions in new paragraphs (b) through (e);
(3) Revising paragraph (a) to--
(i) Add the exemption provisions of 49 U.S.C. 44706(c) that allow
the FAA to exempt certain airport operators from part 139 ARFF
requirements,
(ii) Clarify that no air carrier, and no pilot used by an air
carrier, may operate at a part 139 airport unless that airport is
classified under part 139 to serve the type of airplane to be operated
and the type of operation to be conducted, and
(iii) Add compliance dates after which operations at part 139
airports will be prohibited if those airport operators have not
obtained a new or revised AOC. For Class I airports, the date is 12
months after the effective date of the rule. For Class II, III, and IV
airports, the date is 18 months after the effective date of the rule;
(4) Adding new paragraph (f) to define terms used in this section;
(5) Clarifying that air carriers who conduct certain operations are
not required to conduct those operations at part 139 airports through
the use of the terms ``all cargo operation,'' ``domestic operation,''
``flag operation,'' and ``supplemental operation'' defined in Sec.
119.3, Certification: Air carriers and commercial operators, of this
subchapter; and through the use of the terms ``domestic type
operation,'' ``flag type operation,'' and ``supplemental type
operation'' defined in new paragraph (f) of this section; and
(6) Adding an advisory note describing the new economic statutory
provisions pertaining to the use of part 139 airports for regularly
scheduled charter air transportation flights, in the flush paragraph
following new paragraph (h).
Subpart A--General
Section 139.1 Applicability
Proposal: The language of this section, which prescribes rules for
the certification and operation of airports serving certain air carrier
operations, was expanded, clarified, and reorganized into proposed new
paragraphs (a) and (b).
Proposed paragraph (a) incorporated a new group of airports that
would require an AOC before serving certain air carrier operations.
Further, the FAA proposed to move language currently found in Sec.
139.101(a)--which specifies that part 139 is applicable to land
airports in the United States, the District of Columbia, or any U.S.
territory or possession--to proposed paragraph Sec. 139.1(a).
Proposed paragraph (b) listed the types of airports that would be
exempt from part 139, including U.S. Government-operated airports,
certain Alaskan airports, and heliports.
Comment: Several commenters are unclear as to why Alaskan airports
serving scheduled operations of small air carrier aircraft have a
statutory exemption from part 139. Still others ask for the same
exclusion for such airports in their States, noting that their States
have financial and operational hardships similar to those of the State
of Alaska. These commenters request that their States be added to
proposed paragraph (b), which specifies airports in the State of Alaska
do not need an AOC if they serve air carrier operations that use
aircraft designed for more than 9 passenger seats but less than 31
passenger seats.
FAA Response: The FAA disagrees. Congress created the statutory
exemption for Alaskan airports (49 U.S.C. 44706(a)(2)). In addition, to
ensure the consistent application of safety and operational standards
at airports serving air carrier operations, the FAA has decided to
issue AOCs to all other airports, as permitted under the authorizing
statute.
An airport operator can petition for relief from part 139
requirements by requesting an exemption under Sec. 139.111. The FAA
will consider granting this relief if the airport operator can
substantiate that compliance with part 139 would cause financial and
operational hardships. The airport operator may also decide to decline
certain air carrier operations rather than comply with part 139.
Comment: A commenter requests that the language in proposed
paragraph (b) excluding certain airports in the State of Alaska be
repeated in paragraph (a). Otherwise, the commenter states, Alaskan
airports serving a mixture of air carrier operations would also be
required to comply with part 139 standards during times when they only
serve small air carrier operations.
FAA Response: The FAA concurs and has revised proposed paragraph
(b) (new paragraph (c)) to clarify that part 139 is not applicable to
Alaskan airports during periods of time when no large air carrier
operations are being served.
Comment: A number of commenters recommend that part 139 be extended
to cover air cargo operations. They state that air cargo aircraft might
carry hazardous freight that would justify ARFF capabilities. One
commenter even suggests that this section be amended to specify that
ARFF requirements be applicable to land airports that serve any cargo
operation by aircraft with a maximum weight of 60,000 pounds or more.
FAA Response: The FAA disagrees. In 49 U.S.C. 44706(a), Congress
limits the FAA's authority to grant AOCs to those airports serving
certain passenger air carrier operations. Congress would have to amend
this authority before the FAA could issue AOCs based on air cargo
operations.
Although the FAA does not issue AOCs to cover air cargo operations,
such operations already benefit from part 139 safety measures. At
approximately 343 certificated airports, required part 139 safety
measures are typically applied continuously as air carrier schedules
vary so much that it is more convenient
[[Page 6387]]
and economical to comply with part 139 requirements at all times.
Comment: In response to the FAA's request for information on the
certification of heliports, a commenter recommends using the National
Fire Protection Association (NFPA) standards for heliports (NFPA 418,
Standards for Heliports) in conjunction with AC 150/5390-2, Heliport
Design. Another commenter suggests the FAA consult with other
government offices to determine if passengers using heliports deserve
the same safety standards as passengers flying into an airport
certificated under part 139.
FAA Response: While in general agreement with these comments, the
FAA has determined it is not in the public interest to certificate
heliports at this time. Heliports typically are used by general
aviation operators and serve very few air carrier operations (currently
only one heliport is voluntarily certificated under part 139 although
it does not serve air carrier operations conducted in helicopters with
more than 30 seats). Further, there are very few helicopters that can
seat more than nine passengers, and even fewer still are used for
scheduled passenger operations. Since Congress has not given the FAA
the authority to certificate facilities serving general aviation
operations and the vast majority of operations served by heliports are
by general aviation operators, certificating the few heliports that
serve air carrier operations would not significantly enhance safety.
However, the FAA will continue to monitor the situation and
encourage heliport operators to follow AC 150/5390-2 and NFPA 418 since
the provisions of part 139 are designed for airports serving fixed-wing
aircraft and often do not transfer to heliports. In addition, those
heliport operators that have accepted Federal funds may be obligated to
comply with AC 150/5390-2 under their grant assurances.
Comment: Three commenters express opposition to the FAA's finding
that airports operated by the U.S. Government, including the Department
of Defense (DOD), are not subject to part 139. These commenters believe
that DOD standards for their airports differ significantly from part
139 and that such facilities are not maintained in a manner adequate
for air carriers. At a minimum, these commenters recommend that the
revised regulation should include definitions of ``joint-use airport''
and ``shared-use airport'' and clarify that the civilian operations of
such airports would come under the purview of part 139.
FAA Response: The FAA partly disagrees. Congress did not give the
FAA the statutory authority to regulate airports operated by U.S.
Government agencies. However, a new paragraph (b) has been added to
this section to clarify that part 139 requirements apply to the
civilian portions of a shared-use or joint-use airport that elects to
obtain a part 139 certificate. Consequently, proposed paragraph (b) has
been redesignated as new paragraph (c). Further, the terms ``joint-use
airport'' and ``shared-use airport'' have been defined (see discussion
comments for Sec. 139.5, Definitions, below).
Comment: A commenter disagrees with the use of the phrase
``aircraft designed for seating capacity'' in place of the phrase
``aircraft seating capacity.'' This commenter argues that there are
circumstances where aircraft may have been designed with a seating
capacity greater than the operator is using without being required to
amend the aircraft type certificate. The commenter also notes that the
proposal is inconsistent with existing air carrier regulations (parts
119, 121, and 135) because these regulations typically base operational
and equipment requirements on aircraft seating capacity.
FAA Response: The FAA disagrees with this comment. The statutory
authority for 14 CFR parts 119, 121, and 135 differs from the
authorizing statute for airport certification. The authorizing statute
for airport certification specifies ``design'' rather than ``seating
capacity.'' However, the change to ``design'' from ``seating capacity''
was not done consistently throughout the proposal. This has been
corrected.
Comment: Another commenter notes that references to the number of
passenger seats specified in the authorizing statute differ from the
proposal's preamble and the rule language. Specifically, the discussion
of Class III airports refers to airports serving aircraft with 10 to 30
seats rather than ``more than 9 passenger seats but less than 31
passenger seats'' as specified in the statute.
FAA Response: While both descriptions of the number of required
passenger seats are correct and have the same meaning, further
references to aircraft seats will use the statutory language.
Comment: A commenter requests that the San Francisco International
Airport be required to implement a nighttime curfew of aircraft
operations between 10 p.m. and 7 a.m. The commenter lives under a
flight path used by aircraft operators using this airport.
FAA Response: The FAA does not concur with this request. The
mitigation of aircraft noise is beyond the scope of this rulemaking and
the FAA's authority to certificate airports. Establishing a nighttime
noise curfew is a complex process that is initiated by the airport
operator under 14 CFR part 161, Notice and Approval of Airport Noise
and Access Restrictions.
Section adopted: This section is adopted with changes. An editorial
change was made to paragraphs (a) and (b) so that the language of these
paragraphs better conforms to the statutory language.
For the reasons discussed above, a new paragraph was added and
changes were made to proposed paragraph (b). A new paragraph (b) was
added to clarify the applicability of part 139 at airports where
civilian and military aircraft operations commingle. Consequently,
proposed paragraph (b) was redesignated as new paragraph (c), and a new
element was added to clarify that part 139 is not applicable to Alaskan
airports during periods of time when no large air carrier operations
are being served. With the addition of new paragraph (c)(4), proposed
paragraph (b)(4) regarding heliports is now redesignated paragraph
(c)(5).
Section 139.3 Delegation of Authority
Proposal: This proposed new section sets forth the FAA's delegation
authority for FAA employees to act on behalf of the FAA Administrator
in the oversight of the certification of airports. As proposed, the
Administrator's delegation authority would not change, and the FAA's
Associate Administrator for Airports would be authorized to act for the
Administrator. Existing Sec. 139.3, Definitions, was moved to proposed
Sec. 139.5, Definitions.
Comment: Nine commenters oppose the provision of this section that
sets forth the duties that the Administrator delegates to the FAA
regional offices, specifically the authority to amend an ACM. These
commenters interpret this provision to mean that the FAA has the
exclusive authority to amend an ACM and recommend that proposed Sec.
139.3(b)(3) be revised to read, ``Approve ACM's and any amendments
thereto required under this part.''
FAA Response: While the FAA does have the exclusive authority to
approve amendments to an ACM, this new section was not intended to
preempt procedures under proposed Sec. 139.205, Amendment of airport
certification manual, that permit either the certificate holder or the
FAA to propose an amendment to an ACM. To avoid confusion, and possible
conflicts with
[[Page 6388]]
exemption procedures of Sec. 139.111, proposed paragraph (b) has been
deleted. However, this change does not affect the FAA Administrator's
delegation to FAA employees in the oversight of the certification of
airports.
Section as Adopted: This section is adopted with changes for the
reason discussed above. Paragraph (b) has been deleted and paragraph
(a) combined with the section's first sentence to form a single
paragraph.
In addition, the reference to 49 U.S.C. 44706 has been deleted from
this section. Only the authority to deny and issue an AOC is found in
49 U.S.C. 44706. The Administrator's authority to revoke an AOC is
found in 49 U.S.C. 44709. Rather than cite several sections of the
authorizing statute, which may change as the statute is periodically
revised, this section has been revised to refer generally to the
Administrator's authority.
Section 139.5 Definitions
Proposal: This redesignated section establishes terms, and their
definitions, used in part 139. Revisions proposed to this section
reflect proposed changes made throughout the rule. As such, several
existing definitions were modified or deleted and new definitions were
proposed.
Comment: Five commenters note that the definition of ``small air
carrier aircraft'' poses a dilemma. These commenters state that the
degree of compliance with part 139 is based on the number of passenger
seats--except for ARFF requirements, which are based on the length of
aircraft. Since there are many air carrier aircraft that are less than
90 feet in length (ARFF Index A) with greater than 30 passenger seats,
the commenters reason that the use of aircraft seats versus aircraft
length would restrict a Class III airport from serving aircraft that
require an ARFF Index greater than Index A. They believe it is
unreasonable to deny an airport from serving the scheduled operations
of any air carrier in the ARFF Index if the airport operator has
adequate ARFF capability.
To reconcile, these commenters recommend that the definition of
``small air carrier aircraft'' be changed to ``aircraft less than 90
feet in length'' and the definition of ``large air carrier aircraft''
be changed to ``aircraft 90 feet in length or longer.'' In addition,
they suggest that all references to seating capacity in the regulation
be deleted.
FAA Response: The FAA disagrees. Seating capacity of an air carrier
aircraft serving an airport is the criterion used to determine if an
AOC is required. This is specified by statute and will not be removed
from part 139. In addition, seating capacity of air carrier aircraft is
used to classify certificated airports and to determine the specific
part 139 requirements for each type of airport classification. This
should not be confused with ARFF Index requirements that use the length
of an air carrier aircraft to determine the type of ARFF equipment and
quantity of extinguishing agents that must be used.
The FAA acknowledges that an airport operator could be serving
small air carrier aircraft (more than 9 passenger seats but less than
31 passenger seats) that are longer than 90 feet. In such cases, the
airport operator would have to meet the ARFF Index appropriate to the
size of aircraft served, regardless of the number of passenger seats.
For example, an airport classified as a Class III airport could be
required to meet Index B if it serves scheduled air carrier operations
conducted in an air carrier aircraft that has 19 seats and is 110 feet
in length. Further, part 139 does not limit the airport operator from
providing more ARFF coverage than required; e.g., the air carrier
aircraft served requires Index A but the airport operator can provide
Index C coverage. However, the airport operator must always provide, at
a minimum, the ARFF Index specified in the ACM.
Comment: Two commenters state that the definition of ``air
carrier'' contained in 14 CFR part 1 is not compatible with part 139.
These commenters note that part 1 defines an air carrier as a person
who is engaged in air transportation, yet part 139 standards are
specific to passenger-carrying operations in aircraft with a certain
number of seats. They are concerned that the use of the part 1
definition could require an airport serving any type of passenger,
mail, or cargo operations to come under the purview of part 139. One
commenter even suggests that the part 1 definition would require an
airport serving a Cessna 172 engaged in air transportation to be
certificated under part 139.
FAA Response: The FAA disagrees. The definition of air carrier in
part 1 is used within the context of part 139. Section 139.1 prescribes
rules for the certification and operation of airports serving scheduled
and unscheduled air carrier operations conducted in aircraft with a
certain number of seats. Section 139.5 further defines what is a
scheduled operation and an unscheduled operation. Since the regulation
is read as a whole, only air carrier operations meeting both the
definition of part 1 and the criteria defined in part 139 would require
an airport operator to be certificated under part 139. Thus, air
transportation conducted in the aircraft referenced by one commenter, a
Cessna 172, would not require an airport operator to have an AOC as it
neither meets the part 139 criteria for seating capacity nor covered
air carrier operations.
Comment: A commenter notes that the definition of ``movement area''
does not reference air traffic control (ATC). This individual states
that in the Pilot/Controller Glossary of the FAA's Aeronautical
Information Manual (AIM), the definition of movement area states, ``At
those airports with a tower, specific approval for entry onto the
movement area must be obtained from ATC.'' The commenter recommends
that this language be added to the definition of movement area to be
consistent with the definition contained in the AIM, as well as the
description of the non-movement area boundary markings in AC 150/5340-
1, Standards for Airport Markings.
FAA Response: The FAA disagrees. The part 139 definition of
``movement area'' is intended to describe only the physical boundaries
in which certain part 139 requirements are applicable. Part 139 does
not address air traffic control procedures. Not all part 139 airports
have air traffic control towers, and at those part 139 airports with
towers, there already exists processes for communicating air traffic
control procedures to pilots and other airport users, such as contained
in the AIM.
Comment: Several commenters request that the terms ``joint-use
airport'' and ``shared-use airport'' be defined because of
applicability requirements at airports where civilian and military
aircraft operations commingle. (See discussion comments for Sec. 139.1,
Applicability.)
FAA Response: The FAA agrees. This section is revised to include
the definitions of joint-use airport and shared-use airport. ``Joint-
use airports'' are defined as airports owned by the United States,
which lease a portion of these facilities to the local government for
civilian air carrier operations. ``Shared-use airports'' are defined as
co-located U.S. and local government airports at which portions of the
movement areas, such as runways, taxiways, and ramps, are shared. These
definitions were discussed in the proposal's preamble on 65 FR 38642.
Section as Adopted: This section is adopted with changes. For the
reasons discussed above, the terms ``joint-use airport'' and ``shared-
use airport'' have been added.
Several definitions have been modified for clarity. As there are
many places in the regulation where the term ``air carrier aircraft''
is used without
[[Page 6389]]
reference to the number of passenger seats, the terms ``small air
carrier aircraft'' and ``large air carrier aircraft'' are now defined
under the single term ``air carrier aircraft.'' In addition, the
definition of ``safety area'' has been modified to clarify that the
safety area may also be used by aircraft landing short of a runway and
to correspond to the definition of runway and taxiway safety areas
contained in AC 150/5300-13, Airport Design. Also, the definition of
``Index'' has been reordered for clarity, and the definition of
``heliport'' has been moved as it was not listed in the correct
alphabetical order.
Further, modifications have been made to the definitions of
``scheduled operation'' and ``unscheduled operation.'' The term
``commercial operator'' has been deleted from both definitions as
adopted changes to Sec. 121.590 regarding air carrier operations into
airports operated by the U.S. Government make this phrase unnecessary.
Also, the definition of ``unscheduled operation'' has been reordered
for clarity and the term ``feral'' has been added to the definition of
``wildlife'' to make clear that the FAA considers animals that have
escaped from domestication and become wild a potential hazard to
aircraft.
In addition, an advisory note has been added to the end of the
section to alert airport operators that air carriers conducting certain
public charter operations have additional statutory requirements to
operate to and from an airport certificated under part 139, as
specified under 49 U.S.C. 41104(b). For further questions regarding
public charter operations, contact DOT, Office of Aviation Analysis, at
(202) 366-5903.
Section 139.7 Methods and Procedures for Compliance
Proposal: This relocated and retitled section specifies that a
certificate holder must comply with the requirements of part 139 in a
manner acceptable to the Administrator. Revisions to this section
clarify that the Administrator considers the methods and procedures
contained in FAA ACs to be an acceptable manner in which to comply with
the requirements of part 139, but not the only way to comply.
Comment: One commenter asks if the change to this section meant
that no other standards and procedures other than those contained in
ACs would be acceptable to the Administrator. To clarify, the commenter
suggests that the previous statement ``or other standards and
procedures approved by the Administrator'' be reinserted.
FAA Response: The FAA disagrees. The deletion of the statement ``or
other standards and procedures approved by the Administrator'' was done
to simplify this section, and its absence should not be interpreted to
mean that only methods and procedures contained in ACs are acceptable.
As stated on 65 FR 38643 of the NPRM, certificate holders may comply
with part 139 requirements by means other than those specified in the
ACs. However, any alternative must be authorized by the FAA and must
provide an equivalent level of safety.
Comment: An airport operator also requests that the FAA reinsert
references to specific ACs throughout the regulation. This commenter
believes that it is generally accepted that when referencing a document
within a regulation, the referenced document becomes part of the
regulation by virtue of its reference therein.
FAA Response: This assumption is not correct. References to ACs in
part 139 are intended only to alert the certificate holder of the
availability of a preapproved method for complying with the regulation.
Their use is not mandatory, but the Administrator must approve any
alternative means of compliance. Further, listing specific AC numbers
throughout the regulation has proven impractical. ACs are revised
periodically, and referring to them generically ensures the regulation
remains current.
Most ACs used to comply with part 139 are available, free of
charge, on the FAA Web site at http://www.faa.gov/arp/. Proposed
changes to these ACs also are posted on this Web site, and comments on
such proposals are encouraged.
Section as Adopted: This section is adopted as proposed.
Subpart B--Certification
Section 139.101 General Requirements
Proposal: This section required each airport operator to adopt, and
comply with, an ACM. The section title was shortened, current
paragraphs (a) and (b) were combined into a new paragraph (a), and new
paragraphs (b) and (c) were proposed. Compliance dates for submitting
an ACM were established, language no longer applicable was deleted, and
revisions were made to correspond to the new certification process.
Comment: A commenter recommends that the language of Sec.
139.101(c) be changed from ``approved and implemented'' to ``submitted
to the FAA for approval.''
FAA Response: The FAA agrees. Approval and implementation dates
will vary depending on when the airport operator submits an ACM for
approval and when the FAA approves the document. As such, proposed
paragraph (c) is revised to require only the submittal of an ACM for
FAA approval.
Comment: Seven commenters request additional time to submit an ACM.
In particular, these commenters express concern that Class III airports
would need more time than proposed since these airports would be
developing a manual for the first time, rather than amending an
existing document. They request that Class III airports be allowed 18
months to develop and submit their ACM's. Additionally, one commenter
requests that the FAA allow Class I airports 6 months (180 days), and
another suggests 24 months (2 years) for all airport classes.
FAA Response: The FAA agrees that additional compliance time may be
needed for all airport classes and has modified paragraph (c). Class I
airports will be allowed an additional 3 months, for a total of 6
months, to submit their revised ACM's. Class II and III airports will
be allowed an additional 4 months, for a total of 12 months. Class IV
airports also will be allowed an additional 6 months, for a total of 12
months.
In addition to this extended time period for compliance, all
airport classes will have an additional 120 days to comply with the
rule as implementation dates are based on the rule's effective date. As
specified by the authorizing statute, this rule becomes effective 120
days after its submission to Congress. The FAA intends to submit the
rule to Congress on the same day it is published in the Federal
Register.
Comment: Three commenters are concerned that their limited airport
staff would not have time to develop an ACM and a consultant would have
to be hired. One of these commenters estimates that it would cost
$10,000 to have a manual professionally developed.
FAA Response: The FAA is not requiring an airport operator to use a
consultant to develop an ACM. The airport operator has the discretion
to develop its ACM in any manner it deems best. If an airport operator
decides to develop its own manual, FAA resources are available to
simplify this process. This includes the FAA airport certification and
safety inspectors who are available via telephone or e-mail and
guidance materials pertaining to ACM's, particularly AC 120/139.201-1,
Airport Certification Manual (ACM) and Airport Certification
Specifications (ACS), which will be updated and reissued to correspond
to the issuance of this rule.
[[Page 6390]]
Section as Adopted: This section is adopted with changes for the
reasons discussed above. The language in proposed paragraph (c) is
changed from ``approved and implemented'' to ``submitted to the FAA for
approval.'' In addition, the time that certificate holders have to
submit their manuals is extended. Class I airports have 6 months from
the effective date to submit their manuals. All other airport classes
have 12 months.
Several modifications also have been made to paragraph (c). The
term ``airports'' has been replaced with ``persons'' to clarify that a
person, not an airport, is the holder of an AOC. Additionally,
references to other sections have been deleted. These references
implied that there are alternative compliance dates for certain
sections of an ACM. This is incorrect.
Section 139.103 Application for Certificate
Proposal: This section revised requirements to apply for an AOC. In
addition, application requirements found elsewhere in the regulation
were added, and terms that were no longer applicable were deleted.
Comment: Several commenters request clarification on whether they
can continue to serve air carrier operations during the time between
the issuance of this rule and the FAA approval of their ACM.
FAA Response: During this transition period, an airport operator
that currently holds an AOC will be permitted to serve air carrier
operations, as specified in its existing ACM or airport certification
specifications. Similarly, an airport operator that will be a
certificate holder for the first time and already is serving air
carrier operations on the date this rule becomes effective can continue
to serve such operations until the FAA approves its ACM.
Section as Adopted: This section is adopted as proposed.
Section 139.105 Inspection Authority
Proposal: This section incorporated existing inspection authority
provisions found in existing Sec. 139.105, Inspection authority, and
Sec. 139.301, Inspection authority. Specifically, it stated that the
Administrator may make inspections and tests to determine compliance
with airport certification regulations. Revisions also were made to
update language referencing statutory authority and to delete terms
that were no longer applicable.
Comments: No comments were received on this section.
Section as Adopted: This section is adopted as proposed.
Section 139.107 Issuance of Certificate
Proposal: This section revised standards that must be met before
the FAA could issue a certificate, including requirements for an ACM. A
new provision was added that requires applicants to provide written
documentation that air carrier service would begin on a specific date.
In addition, terms that were no longer applicable were deleted, and the
standard ``public interest'' was revised to read ``safety in air
transportation'' to reflect revisions to the authorizing statute.
Comments: No comments were received on this section.
Section as Adopted: This section is adopted with an editorial
clarification. The term ``certificate holder'' in paragraph (a) has
been changed to ``applicant'' to clarify that this section applies to
an applicant for a certificate, not a current certificate holder.
Section 139.109 Duration of Certificate
Proposal: This section revised existing language into new paragraph
(a) and proposed a new paragraph (b) that modify existing standards for
the suspension or revocation of an AOC by stipulating that the
Administrator may revoke an AOC if air carrier operations have not
occurred for 24 consecutive months. This section also included language
notifying the certificate holder that it can appeal an order revoking
its certificate.
Comment: Four commenters oppose the language stipulating that the
Administrator may revoke an AOC. These commenters are particularly
concerned with the new provision that specifies that the duration of a
certificate is tied to air carrier service. They question why an
airport operator should lose its operating certificate when not serving
air carrier operations if it continues to meet the requirements of part
139. These commenters note that an AOC helps market an airport to air
carriers and protects the airport against budget cutbacks imposed by
the local governing body. One of these commenters suggests that an
``inactive'' category be established to allow an airport to go without
air carrier service for five years before its certificate is revoked.
FAA Response: While the FAA understands that an AOC helps market an
airport to air carriers and protects the airport against budget
cutbacks imposed by the local governing body, the FAA issues AOCs under
part 139 to ensure safety in air transportation, not to encourage air
carrier service or for budgetary reasons. However, in response to
comments, the FAA has reconsidered its approach to inspecting an
airport certificate holder at an airport that is no longer currently
serving air carrier operations.
Accordingly, the FAA has deleted proposed paragraph (b) and will
work with airports not serving air carrier service on a case-by-case
basis to determine the need for inspections. The FAA also will consider
developing an ``inactive'' category for such airports in its inspection
policies, but will not change the rule at this time.
Comment: One commenter is concerned about the impact the revocation
of a part 139 AOC would have on an airport operator's Federal funding.
FAA Response: Federal funding provided to airport operators through
the Airport Improvement Program (AIP) is not dependent on a part 139
AOC. AIP funds are available to all airports that are identified in the
FAA's National Plan of Integrated Airport Systems (NPIAS).
The NPIAS identifies U.S. airports that are important to national
transportation and, therefore, eligible to receive grants under the
AIP. To be included in the NPIAS, an airport must meet certain
criteria. Such criteria do not require an airport to be certificated
under part 139. Most of the 3,344 airports identified in the NPIAS are
not certificated under part 139. A copy of the NPIAS is available on
the FAA's Web site at http://www.faa.gov/arp.
Certain airports identified in the NPIAS receive an annual
apportionment of AIP funds based on the number of passengers enplaned.
These funds are known as entitlement funds and distributed to airports
based solely on passenger activity levels, not part 139 certification.
Funding and certification are unrelated, although the loss of air
carrier service may result in an airport operator losing both its AIP
funds and AOC.
Additionally, an airport's certification status does not affect its
priority in receiving AIP funds. The FAA prioritizes the distribution
of AIP funds based on the type of project to be funded, not an
airport's certification status.
In some instances, the loss of a part 139 AOC may affect certain
AIP funding for safety equipment: AIP funds may be provided for safety
equipment purchases needed to comply with part 139 requirements. As of
the date of the publication of this final rule, safety equipment is
only eligible for AIP funding under two situations. The
[[Page 6391]]
equipment is required under regulation or the FAA has determined that
this equipment will contribute significantly to the safety or security
of persons or property at an airport (49 U.S.C. 47102(3)(B)(ii), as
amended).
Comment: The FAA received one comment from an airport operator on
the cost of surrendering a certificate and then later regaining it
versus maintaining a certificate uninterrupted. At some point, this
airport operator surrendered its AOC and then, in 1991, applied for
another certificate. The cost to do this was $125,000, excluding
administrative expenses. This commenter notes that the concept of an
airport simply maintaining its facility to part 139 standards is faulty
as the discretion given FAA inspectors allows for varying
interpretations as to what is required. Thus, an airport operator may
be found not in compliance although it has tried to remain so while not
certificated.
FAA Response: The FAA agrees that the methods and procedures for
complying with certain part 139 requirements may change during the time
when an airport's certificate is surrendered and then reinstated. Thus,
an airport operator that continued to comply with its certification
manual during this timeframe may not meet part 139 requirements when
reapplying for an AOC. In such instances, there may be a one-time cost
to become certificated again that the airport operator might otherwise
have absorbed over a longer period if it had remained certificated.
To avoid such situations, an airport operator should request that
the local FAA Airports Regional Office continue to provide it with
airport information notices, including changes to the airport
certification program. The FAA regional offices maintain a contact list
of airport operators (often a combination of part 139 certificate
holders and noncertificate holders, recipients of AIP funds, and those
serving only general aviation operations), State aviation agencies, and
other interested parties. This list is used to distribute information
about airport safety and standards, the part 139 airport certification
program, and upcoming training events and to request comments on
proposed changes to regulations and standards. Many regions also
distribute informational newsletters, sponsor training events, and
maintain Internet sites that provide airport operators up-to-date
information on airport certification issues. As resources permit, the
FAA regional offices may conduct occasional safety inspections of
noncertificated airports and make recommendations based on current part
139 standards.
If an airport operator uses these resources to keep informed of
changes to the part 139 airport certification program, the cost should
be the same to comply voluntarily with part 139 as it would be to
maintain an uninterrupted AOC.
In addition, the FAA disagrees with the commenter's assertion that
FAA airport certification and safety inspectors are allowed to make
varying interpretations of part 139. This is not the FAA policy. An
airport operator should contact the local FAA Regional Airports
Division Manager if an FAA inspector's interpretation of the regulation
seems incorrect or if it seems that the airport operator is being held
to a different standard than other certificate holders.
Section as Adopted: This section is adopted with changes. For the
reasons discussed above, proposed paragraph (b) has been deleted.
Section 139.111 Exemptions
Proposal: This section detailed the procedures for a certificate
holder to petition for an exemption from the requirements of part 139,
including ARFF requirements. Changes were proposed that would require a
petition for relief from ARFF requirements to include additional
information, as specified in proposed Sec. 139.321, ARFF: Exemptions.
In addition, changes were proposed to update references to 14 CFR part
11.
Comment: Four commenters state that the alternative emergency
response services specified in proposed Sec. 139.321 are as stringent
as the ARFF requirements that a petitioner would be seeking relief
from. These commenters request that the FAA provide total relief from
an ARFF requirement if an airport operator can show that the
requirement is unreasonably costly, burdensome, or impractical, as
specified in the authorizing statute.
FAA Response: The FAA agrees. Proposed Sec. 139.321 has been
deleted in its entirety in the final rule, and all requirements for
petitions for relief from all or some ARFF requirements are now
contained in Sec. 139.111(b). As discussed in the General Comments
section above, a new paragraph (e) has been added to Sec. 139.315 to
provide an alternative means of compliance with ARFF requirements for
Class III airports.
Based on comments received, several operators of Class II and III
airports may be petitioning the FAA for relief from all ARFF
requirements due to cost considerations. However, most of these airport
operators did not provide the FAA sufficient supporting cost or
operational data to justify their position that compliance with ARFF
requirements would be too costly. To ensure petitioners adequately
justify that ARFF requirements are unreasonably costly, burdensome, or
impractical, paragraph (b) has been modified to detail the type of
financial information the FAA would need when considering a request for
exemption.
The new paragraph added to Sec. 139.315 provides an alternative
means of compliance for Class III airports that would allow the
certificate holder to either comply with Index A ARFF requirements or
comply with alternate ARFF requirements that provide a comparable level
of safety (see discussion comments for Sec. 139.315, Aircraft rescue
and firefighting: Index determination). These alternate ARFF
requirements must be approved by the FAA and include provisions for
prearranged emergency response services and that emergency responders
are familiar with air carrier schedules, airport layout, and airfield
communications. Such services may be those identified in the airport
emergency plan required under Sec. 139.325, Airport emergency plan.
There are no timed response, equipment, or personnel requirements as
were proposed in the now deleted Sec. 139.321, ARFF: Exemptions.
Comment: A commenter states that criteria the FAA uses to determine
if an airport operator can petition for relief from ARFF requirements
is outdated and ineffective. The commenter believes that allowing
airports with ``less than one-quarter of 1 percent of the total
passengers enplaned at all air carrier airports'' to petition the FAA
for relief from ARFF requirements is too liberal. The commenter notes
that one-quarter of 1 percent of the total U.S. passenger enplanements
has grown from 478,372 enplanements in 1972 to 1,588,505 enplanements
in 1999.
Instead, the commenter suggests that the FAA base ARFF exemptions
on the 1982 amendment of the Airport and Airway Improvement Act's
definition of ``primary airports.'' The commenter states that this law
defined a primary airport as a commercial service airport that is
determined by the Secretary of Transportation to have .01 percent or
more of the total number of passengers enplaned annually at all
commercial service airports. Under this revised criterion, the
commenter argues that only airports with 63,540 enplanements or less
could petition for relief from ARFF requirements.
FAA Response: The FAA disagrees. The authorizing statute specifies
that
[[Page 6392]]
the FAA may consider exempting from ARFF requirements an airport that
enplanes annually less than one-quarter of 1 percent of the total
number of passengers enplaned at all air carrier airports. Congress
would have to amend this authority before the FAA could limit ARFF
exemptions to only those airports categorized as primary airports.
In addition, the commenter's revised criterion is based on an
incorrect definition. The commenter suggests using the definition of
``primary airport'' found in the 1982 amendment of the Airport and
Airway Improvement Act. In 1994, Congress amended and recodified the
Airport and Airway Improvement Act. Under the current statute, a
primary airport is defined as a commercial service airport the
Secretary of Transportation determines to have more than 10,000
passenger boardings each year (49 U.S.C. 47102 (11)).
Comment: Two commenters request guidance on the circumstances under
which the FAA would grant an exemption to part 139 requirements.
Without this guidance, the commenters believe it would be difficult for
airport operators to determine whether serving scheduled air carrier
operations could be justified in light of the incremental cost of part
139 certification. One of these commenters recommends that the FAA
develop criteria for approving exemptions that would improve safety and
also allow small airports with small budgets to focus their resources
on accident prevention rather than accident mitigation.
FAA Response: The FAA partially agrees. The FAA has the authority
to approve an exemption request from any part 139 requirements and will
consider any petition for exemption from these requirements that is
submitted in the manner outlined in the final rule, as adopted.
However, varying airport operations, sizes, and local circumstances
make it difficult to generalize what exemptions would be granted and it
would be difficult to provide in this final rule.
As stated in the proposal (65 FR 38664), the FAA considered
requiring airport operators that serve small air carrier operations to
comply only with accident prevention measures, or risk reduction
requirements, and not accident mitigation requirements (such as ARFF
and emergency planning). While this approach to regulating these
airports would promote a minimum level of safety through consistent
compliance with risk reduction requirements, experience has shown that
not all airport owners and operators would place enough emphasis on
preparing for emergency response without some FAA oversight.
Since accident mitigation costs could have a significant economic
effect on airports serving small air carrier aircraft, the FAA has
added language to clarify how an airport operator can apply for an
exemption from all or some ARFF requirements that would be too costly,
burdensome, or impractical. Language also has been added to allow
alternative compliance measures for Class III airports (see the
section-by-section analysis of Sec. 139.111, Exemptions and Sec.
139.315, Aircraft rescue and firefighting: Index determination).
Comment: A commenter states that the FAA should not use its
authority to grant exemptions as a means of remedying funding shortages
at smaller certificated airports. Instead, the commenter recommends
that the FAA develop a new funding mechanism.
FAA Response: The FAA disagrees. Instead of alternative funding
sources, the FAA can use its exemption authority in instances where
compliance with part 139 would be unduly burdensome. The authorizing
statute requires the FAA to consider regulatory alternatives for
airports serving small air carrier operations that are the ``least
costly, most cost-effective, or least burdensome'' and will provide
``comparable safety'' at all certificated airports. As noted earlier,
the authorizing statute also provides exemption authority from ARFF
requirements for certain airports. The FAA will use its general
exemption authority under 49 U.S.C. 44701 and its specific authority to
grant limited exemptions from ARFF requirements under 49 U.S.C. 44706
to require safety measures at all airports serving small air carrier
aircraft consistent with the requirements of 49 U.S.C. 44706.
After publication of the proposal, Congress did direct the FAA to
set aside a portion of existing AIP funds to assist airport operators
in meeting the terms of this rule (49 U.S.C. 47116(e)). As of the date
of the publication of this final rule, the FAA is required to set aside
$15 million of AIP funds per year for 4 fiscal years following the
effective date of this rule. Beyond that, the FAA has limited options
for developing new funding mechanisms. The FAA executes statutes for
the distribution of Federal funds to airport operators, as directed by
Congress. Congress would have to appropriate any additional Federal
funds.
Section as Adopted: This section is adopted with changes. For the
reasons discussed above, proposed Sec. 139.321 is deleted in its
entirety, and all references to Sec. 139.321 in Sec. 139.111 have been
deleted. All requirements for petitions for relief from ARFF
requirements are now contained in Sec. 139.111, and this paragraph has
been modified to require the petitioner to provide the FAA additional
information.
Section 139.113 Deviations
Proposal: This section permits the certificate holder to deviate
from requirements of Subpart D--Operations of the regulation during
emergency conditions. A revision was proposed to allow the certificate
holder more flexibility during emergencies requiring a deviation from
some part 139 requirements, including the flexibility to notify the FAA
of deviations by telephone, or other means of electronic
communications, rather than requiring an automatic written
notification. In addition, the term ``Airport Certification Manual''
was added to clarify that the certificate holder may, when responding
to an emergency, deviate from both its certification manual and any
requirements of subpart D.
Comments: No comments were received on this section.
Section as Adopted: This section is adopted as proposed.
Subpart C--Airport Certification Manual
Section 139.201 General Requirements
Proposal: This section was retitled and specified that each airport
operator shall adopt, and comply with, an ACM in accordance with part
139. It further specified that the Administrator may authorize an
airport operator to serve air carrier operations not otherwise
permitted under the regulation.
This section consolidated existing requirements from Sec.Sec.
139.201, 139.203, 139.207, 139.209, 139.211, and 139.215 into a single
section. Requirements that an airport subject to this part may not be
operated without an operating certificate, or in violation of its
certificate, were combined, as were the requirements for preparing and
maintaining a manual. In addition, language no longer applicable was
deleted, revisions were made to correspond to the new certification
process, and implementation dates were established.
Comment: Four commenters request that the reference to ACs in
paragraph (d) be limited to those in the 150 series that pertain to
airports.
FAA Response: The FAA disagrees. The AC pertaining to the
development of an ACM is not in the 150 series. Rather, it is in the
120 series (AC 120/139.201-1, Airport Certification Manual (ACM) and
Airport Certification
[[Page 6393]]
Specifications (ACS)). Further, referencing specific AC series has
proven impractical. ACs are revised periodically, and referring to them
generically ensures the regulation remains current.
Section as Adopted: This section is adopted with administrative
changes. Minor grammatical edits have been made to paragraph (b)(3).
Section 139.203 Contents of Airport Certification Manual
Proposal: Under the proposal, existing standards of Sec. 139.203
for maintaining an ACM were incorporated into proposed Sec. 139.201,
General requirements, as previously discussed. The contents of existing
Sec. 139.205, Contents of airport certification manual, and Sec.
139.213, Contents of airport certification specifications, were revised
and became the new proposed Sec. 139.203. This section required all
certificate holders to have an ACM and to include in their
certification manual a description of procedures and equipment used to
comply with the requirements of part 139, particularly subpart D. New
manual contents were required for each airport class to correspond to
the new classifications of certificated airports and changes to subpart
D.
Class I airport certificate holders were required to include in
their manual all elements that are currently required and several new
elements. Airport operators currently holding a Limited Airport
Operating Certificate were required to convert their existing airport
certification specifications into an AOC and include several new
elements. These airports were classified as either Class II or Class IV
airports. Class II airport operators were required to include more
elements in their manual than were operators of Class IV airports. In
addition, airports that would be newly certificated under the proposal
(Class III airports) were required for the first time to develop an
ACM.
Comment: A commenter disagrees that airports serving small air
carrier aircraft would be permitted some flexibility in complying with
requirements that the commenter believes are more burdensome. This
commenter argues that Sec. 139.203 makes no distinction between Class
I, II, and III airports as all three airport classifications must have
the same certification manual contents. Likewise, the commenter states
that nowhere in the proposed regulation are Class III airports allowed
to comply with requirements differently than Class I and II airports.
FAA Response: The FAA disagrees. While Sec. 139.203 does require
Class III airports to comply with the same subpart D sections as Class
I and II airports, several of these sections have different
requirements for Class III airports. For example, Class III airports
would not have to conduct an emergency disaster drill every 3 years
(Sec. 139.325(h)) and would not be required to have internally
illuminated signs, except for holding position and Instrument Landing
System (ILS) critical area signs (Sec. 139.311(b)(3)).
Comment: Two commenters object to the FAA proposing that Class IV
airport operators need not include in their manuals procedures for
complying with certain subpart D requirements. To encourage
standardization, one of these commenters recommends that all
certificated holders be required to include in their ACM procedures for
complying with all subpart D requirements. The other commenter suggests
that Class IV airport operators at least be required to address their
manual procedures for complying with proposed Sec. 139.313, Snow and
ice control; Sec. 139.323, Traffic and wind direction indicators; Sec.
139.331, Obstructions; Sec. 139.335, Public protection; and Sec.
139.337, Wildlife hazard management.
FAA Response: The FAA partly agrees and has revised this section as
discussed below. However, commenters may have misunderstood what is
required for a Class IV ACM. This may be the result of errors contained
in the proposal. The proposal incorrectly identified Class IV ACM
requirements and contradicted statements in the preamble. These errors
are in the chart on page 38648 that compares current and proposed part
139 requirements and in the chart contained in proposed Sec. 139.203,
Contents of airport certification manual, paragraph (b) on page 38674.
A correction was issued on August 15, 2001 (66 FR 42807).
As noted in the correction, Class IV airport operators would
continue to address in their ACM procedures for complying with several
subpart D requirements, including any proposed revisions to such
requirements. The existing requirements are for personnel, paved and
unpaved surfaces, safety areas, marking, lighting, signs, and airport
conditions reporting. Additional manual elements were proposed that
include procedures for complying with subpart D requirements for ARFF,
the storage and handling of hazardous materials, wind and traffic
indicators, and self-inspections. Such changes are adopted as proposed.
The proposal did not require Class IV airport operators to include
in their manuals procedures for avoiding power interruption or failure,
snow and ice control, control of ground vehicles, marking and lighting
obstructions, protection of NAVAIDS, public protection, wildlife hazard
management, and marking and lighting construction and unserviceable
areas.
However, based on comments received, the FAA reviewed manual
content requirements for Class IV airport operators. The FAA agrees
with commenters that it is necessary for safety and standardization
purposes to require Class IV airport operators to include in their
manual procedures for the removal, marking, or lighting of
obstructions, as specified in subpart D. To ensure all certificate
holders monitor the status of obstructions, and take appropriate action
when necessary, proposed Sec. 139.203(b)(26) has been revised to
require all part 139 certificate holders remove, mark, or light
obstructions within their control.
For example, an object, such as a tree or tower, may penetrate
certain airspace and affect aircraft operations. To determine the
impact on airspace of such objects, the FAA conducts an aeronautical
study and makes recommendations that may require the owner to remove,
mark, or light any object deemed an obstruction. If this is not
possible, visual and instrument approaches to runways near the
obstruction may be changed to help ensure aircraft stay clear of the
object. This ongoing process involves both certificated and non-
certificated airports, and most airports certificated under part 139
have already removed, marked, or lighted any obstruction to FAA
standards.
Comment: A commenter questions whether differences between similar
elements of the table contained in Sec. 139.203 are intentional.
Specifically, this commenter notes that Sec. 139.203(b)(18) differs
slightly from Sec. 139.203(b)(19). Both element (18) and (19) address
storing and handling hazardous materials but element (19) does not
reference a subpart D section as does element (18). This is also the
case for elements (20) and (21), which address traffic and wind
direction indicators, and elements (23) and (24), which address self-
inspections.
FAA Response: These differences were not intentional. Rather,
language from a previous version of part 139 was inadvertently left in
Sec. 139.203(b). As discussed previously, a correction was issued on
August 15, 2001 (66 FR 42807).
[[Page 6394]]
Comment: A commenter, an operator of a Class I airport, agrees with
the proposed requirement to include in the ACM a description of
personnel training and equipment and a system for maintaining records.
However, this commenter notes such additional requirements would have
an economic impact. No cost data is provided to support the commenter's
position.
FAA Response: The FAA agrees that there will be costs associated
with new personnel and recordkeeping requirements. While many Class I
airports already comply with these requirements and need only to
document their existing procedures, other airport operators,
particularly those newly certificated under the revised rule, may have
additional labor and training costs. Due to variances between airports,
such costs will differ from airport to airport, even among airports
within the same classification.
Several other airport operators provided the FAA with cost and
operational data regarding compliance with new personnel and
recordkeeping requirements (see section-by-section analysis of Sec.
139.301, Records, and Sec. 139.303, Personnel). The FAA has evaluated
this data and made adjustments to associated cost estimates, as
appropriate (Chapter V of the Regulatory Evaluation).
Comment: A commenter opposes the requirement that Class III
airports include in their ACM's a description of how they will meet
ARFF requirements of subpart D. The commenter is concerned that this
requirement will make air carrier service cost prohibitive,
particularly for airport operators in New York State.
FAA Response: The FAA agrees that, in some instances, the cost to
comply with ARFF requirements may be too costly for Class III airport
operators, even if such costs are passed onto airport users. As
discussed in the section-by-section analysis of Sec. 139.111, new
procedures have been established for certain airport operators to
petition the FAA for relief from ARFF requirements that are
unreasonably costly, burdensome, or impractical. In addition, the FAA
has established alternative compliance measures for Class III airports
(see the section-by-section analysis of Sec. 139.111, Exemptions and
Sec. 139.315, Aircraft rescue and firefighting: Index determination).
However, the FAA does not agree that Sec. 139.203 should be changed
to exclude Class III airports from complying with ARFF requirements
specified in subpart D. To standardize ARFF at certificated airports,
all certificated airports serving both scheduled and unscheduled
operations are required to comply with these ARFF requirements, subject
to the exemption discussed above. Accordingly, no changes have been
made to proposed Sec. 139.203(b)(16), and all operators of certificated
airports are required to include procedures in their ACM's for
complying with ARFF requirements appropriate to the air carrier
aircraft and operations served.
Comment: One commenter notes that the table in Sec. 139.203
indicates that Class IV airports do not have to comply with certain
sections of subpart D, contradicting language in these subpart D
sections. Specifically, the commenter is concerned that the language
``each certificate holder shall'' in specified subpart D sections means
that every certificate holder must comply even if Sec. 139.203 states
otherwise.
FAA Response: The FAA disagrees. Section 139.203 is tied to subpart
D as it establishes what subpart D requirements a certificate holder is
required to address in its ACM. If Sec. 139.203 does not require
compliance with a subpart D section, then the certificate holder is not
obligated to comply with that section.
Comment: A commenter notes that the reference to Sec. 139.319(l) in
proposed Sec. 139.203(b)(6) is incorrect. The reference should be to
Sec. 139.319(k).
FAA Response: The FAA agrees. Section 139.203(b)(6) was changed in
the correction issued on August 15, 2001 (66 FR 42807).
Section as Adopted: This section is adopted with changes. Section
numbers referenced throughout Sec. 139.203 have been changed to reflect
the correction issued on August 15, 2001 (66 FR 42807), and the
renumbering of some subpart D sections.
For reasons discussed above, Sec. 139.203(b)(23) has been revised
to require Class IV airport operators to include procedures in their
certification manuals for removal, marking, or lighting of
obstructions.
In addition, a minor editorial change was made to paragraph (a), as
well as changes to paragraph (b)(13), to clarify that a certificate
holder's runway markings and holding position markings must be
indicated in the runway and taxiway identification plan. Further, the
reference to proposed Sec. 139.321 in paragraph (b)(17) was changed to
Sec. 139.111, paragraphs (b)(22) and (28) were updated to reflect the
title change to the referenced subpart D sections, and paragraph
(b)(26) was changed to clarify that all wildlife hazard management
procedures are to be included in the ACM, not just the wildlife hazard
management plan.
Section 139.205 Amendment of Airport Certification Manual
Proposal: Under the proposal, the contents of existing Sec.
139.205, Contents of airport certification manual, were moved and
consolidated into proposed Sec. 139.203, Contents of airport
certification manual. In existing Sec. 139.217, Amendment to airport
certification manual or airport certification specifications,
procedures and requirements for amending the ACM were redesignated as
proposed Sec. 139.205 and retitled. This section revised existing
amendment procedures and requirements to reflect changes made to the
certification process and deleted language that was no longer
applicable. In addition, this section delegated to the Associate
Administrator for Airports the authority to act on a petition for the
Administrator. The section also established a deadline for the FAA to
dispose of an amendment.
Comment: A commenter states that the FAA should not have the
unilateral authority to amend an ACM. This commenter argues that there
are sufficient safeguards within part 139 authorizing the FAA
Administrator to revoke or suspend an AOC.
FAA Response: The FAA disagrees. The commenter is confusing the
process to amend an ACM with the process to revoke an AOC. Revocation
of an AOC is the result of an enforcement action due to noncompliance
with part 139 requirements. The process to amend an ACM would not be
used in this instance.
For various reasons, the FAA or the certificate holder may need to
amend the ACM to ensure that the manual accurately reflects how the
certificate holder is complying with part 139, to implement new
standards, or to address an emergency situation. Such an amendment
typically addresses a few sections of the rule, and the certificate
holder's overall compliance is unaffected.
Either the FAA or a certificate holder can propose an amendment to
the ACM, as specified under proposed Sec. 139.205. However, the FAA has
the exclusive authority to approve amendments to an ACM. This is
currently the case and would not change with this rulemaking. In fact,
this rule makes very few changes to the amendment process, except to
clarify that the FAA will respond within a time certain as to the
disposition of an amendment it has initiated. The certificate holder
still may petition that the Associate Administrator for Airports, under
Sec. 139.205(d), reconsider an amendment initiated by the FAA.
[[Page 6395]]
The Associate Administrator for Airports stays the effective date of
the amendment, pending a decision.
Section as Adopted: This section is adopted with an administrative
change. Language in paragraph (b) has been changed to clarify that the
amendment process requires the certificate holder to file an
application for an amendment in writing and submit it to the FAA
Regional Airports Division Manager.
Subpart D--Operations
Section 139.301 Records
Proposal: Under the proposal, the contents of existing Sec. 139.301
dealing with inspection authority was moved and consolidated with Sec.
139.105, Inspection authority, and this new section on records was
proposed. This new section required all certificate holders to
maintain, and make available to FAA inspectors, records to show
compliance with part 139. Existing recordkeeping requirements found
throughout part 139 were combined with new recordkeeping requirements.
This section also required a certificate holder that serves less than
10,000 annual air carrier operations to make and maintain records of
each scheduled or unscheduled operation of large air carrier aircraft
and scheduled operations of small air carrier aircraft that occurred
during the previous 2 years.
Comment: Three commenters oppose the new requirement for a
certificate holder that serves less than 10,000 annual air carrier
operations to make and maintain records of certain air carrier
operations. One of these commenters was unclear on the need to keep
such records and suggests that air carriers be required to provide this
data instead. Another commenter suggests that FAA air traffic control
towers collect the data. All agree that it would be difficult for
airport operators to comply with this requirement.
FAA Response: Due to changes made to proposed Sec. 139.105,
Duration of certificate, the FAA has deleted the requirement for
certain certificate holders to make and maintain records of air carrier
operations. Instead, the FAA will request air carrier operations data
on a case-by-case basis from those operators of airports at which the
FAA is considering discontinuing inspections or requesting the operator
surrender its AOC (see section-by-section analysis of Sec. 139.105,
Inspection authority).
Comment: One commenter states that the new recordkeeping
requirements will create additional costs for airport operators if the
training required under proposed Sec. 139.303, Personnel, is more than
``on-the-job'' training.
FAA Response: The FAA agrees but does not envision the training
required to be more than ``on-the-job'' training. This training is
discussed in more detail in the following section, Sec. 139.303,
Personnel.
Section as Adopted: For the reason discussed above, this section is
adopted with changes. Proposed paragraph (b) has been replaced with a
new paragraph that identifies recordkeeping requirements found
throughout part 139 and the length of time these records must be
maintained. Consequently, references to other sections in paragraph (c)
have been deleted.
Section 139.303 Personnel
Proposal: This section expanded on the existing requirement for all
certificate holders to have available sufficient qualified personnel
necessary to comply with the requirements of part 139. Changes were
made to clarify the certificate holder's responsibilities to train and
equip personnel performing duties required under the proposed part 139.
Requirements also were proposed to ensure a certificate holder provides
its personnel the necessary resources to properly perform these duties.
Further, new training and recordkeeping requirements were proposed.
Comment: A commenter states that it supports the ``requirement for
initial and recurrent training of personnel, and complementary training
records.''
FAA Response: The FAA agrees.
Comment: Five commenters state that the revised section is unclear
as to who should be trained and what the training curriculum should
address. They recommend that the section be revised to clearly define
what personnel must be trained, what topics the training should cover,
and what the training records should include. One of these commenters
suggests that the section be revised so that it only applies to
personnel responsible for part 139 compliance and not general
administrative personnel.
FAA Response: The FAA agrees. Proposed paragraphs (c) and (d) have
been revised and new paragraphs (e) and (f) added. These revisions
clarify who must be trained, how frequently this training must be
provided, what subject areas training must cover, and what training
records must be kept.
In proposing new training requirements, it was not the FAA's intent
to extend this requirement to administrative personnel. While such
personnel may assist in the maintenance of an ACM or records to show
compliance, they typically do not access movement areas or perform
duties that directly affect the safety of air carrier operations, such
as repairing runway lights or conducting inspections of movement areas.
As such, new paragraph (c) is limited to personnel that access movement
areas and safety areas to perform duties necessary to comply with the
ACM and part 139.
As requested, new paragraph (c) also specifies subject areas that
required training must cover. These subject areas include airport
familiarization, procedures for accessing and operating in movement
areas and safety areas, airfield communications, duties specified in
the ACM and part 139, and any additional training required under part
139, such as training required for ARFF and emergency medical
personnel.
New paragraph (c) does not specify how training must be conducted.
This is intentional to allow the certificate holder some flexibility in
complying with training requirements in a manner best suited for local
circumstances. Thus, training could consist of on-the-job training,
formal classroom lectures, industry training meetings, or some
combination thereof.
While this section does not require the certificate holder to test
personnel to determine comprehension of the required subject areas, the
FAA recommends that the certificate holder establish some sort of
testing procedures to determine the effectiveness of training. During
inspections, FAA inspectors may test covered personnel to determine if
training has been completed and the effectiveness of this training.
Paragraph (c) still requires the certificate holder to ensure
covered personnel are trained before the initial performance of part
139 duties. However, this applies only to personnel assigned to part
139 duties after the effective date of this rule. This requirement is
not retroactive for personnel that currently perform part 139 duties,
and paragraph (d) has been revised to clarify that initial training
records need only be maintained for training given after the effective
date of the rule.
This paragraph also requires personnel performing part 139 duties
to receive recurrent training in the specified curriculum at least once
every 12 consecutive calendar months. This requirement is applicable to
all covered personnel but is not retroactive. Beginning 1 year after
the effective date of this rule, the certificate holder must ensure
that all covered personnel receive recurrent training.
Such recurrent training need not be accomplished at one time and
could be staggered throughout the year. As long
[[Page 6396]]
as the five required subject areas are covered, recurrent training
could be as involved as initial training or an informal discussion
between a supervisor and employee.
Comment: Four commenters oppose the revision of existing personnel
requirements, claiming they are unnecessary and overly burdensome. One
of these commenters notes that FAA annual inspections ensure that
airport operators have sufficient and qualified personnel. Thus there
is no need for new recordkeeping and recurrent training requirements.
Two other commenters state there is no benefit to conducting or
documenting recurrent training for duties that are done frequently, if
not daily.
The remaining commenter states that its two employees already know
their duties; thus training would be unnecessary and would require the
commenter to hire an administrative clerk, at $26,557 a year, to
comply.
FAA Response: The FAA disagrees with the commenters that revisions
to this section will be burdensome and will require the certificate
holder to hire additional personnel. Most certificate holders already
comply with this section and need only to document existing training
procedures.
As discussed above, the FAA has made several changes to this
section to clarify training requirements. In particular, the changes
made to paragraph (d) to clarify that training requirements are not
retroactive address the commenters' concerns about the cost to train
existing employees. Rather, within a year of the effective date of this
rule, these employees would need to receive annual recurrent training
that covers the five specified subject areas. As noted above, the FAA
allows the certificate holder some flexibility in conducting and
scheduling this training so that the certificate holder can comply with
the requirements of this section in a manner best suited to its
operations and budget needs.
The FAA also does not agree that documenting the training would
require the certificate holder to hire additional personnel. The
training documents required under this section can be as simple or
complex as the certificate holder desires. This section only requires
training records to contain a description and date of training received
for each covered employee.
For instance, a handwritten or typed letter containing this
information for each covered employee that the certificate holder
certifies is accurate meets the requirements of this section. In
complying with similar training records for ARFF personnel, some
certificate holders have developed a generic form to minimize the time
it takes to record ARFF and emergency medical training. A copy of this
form is made for each covered employee, and then specific information
about the individual is filled in as training occurs. Each subject area
that must be covered is listed on this form, next to which is a space
to fill in the training date and the signature of the training
instructor. This form is kept in a training notebook and is provided to
the FAA inspector during periodic inspections to show compliance with
part 139 training requirements. This low-cost approach to a
recordkeeping system is an acceptable means of complying with
recordkeeping requirements of this section.
Additionally, the FAA disagrees with the commenter that annual FAA
inspections ensure compliance with part 139 without the need for
onerous recordkeeping and recurrent training program. This commenter
argues that if an airport is found in compliance with part 139, then it
is providing sufficient and qualified personnel.
While full compliance with part 139 during a FAA inspection is
certainly a good indicator that the certificate holder is complying
with personnel requirements, such inspections typically occur once a
year. Part 139 personnel requirements ensure that the airport operator
provides qualified and sufficient number of personnel to comply with
part 139 at all times, not just during FAA inspections. Such
requirements also ensure a more consistent approach to training. This
is particularly important for personnel that may not perform their
duties on a regular basis, such as ARFF and emergency medical
personnel.
Even personnel that perform their duties on a daily basis can
benefit from recurrent training. Such employees may become complacent
in their duties and recurrent training will help ensure that they
continue to perform their duties, correctly and safely. Recurrent
training also provides the opportunity for employees to discuss any
changes to part 139 and any revisions to standards or the ACM.
Comment: Two commenters request that this section clearly state
what the FAA considers to be ``sufficient and qualified personnel.''
FAA Response: The FAA agrees. Based on comments received, these
requirements have been clarified and restated.
This section, as adopted, requires the certificate holder to ensure
such personnel are trained in the subject areas specified in paragraph
(c) and to document this training as required under paragraph (d). The
FAA will consider a certificate holder to have qualified personnel if
the certificate holder has complied with these requirements. As
previously stated, to determine if the certificate holder has qualified
personnel to comply with its ACM and part 139, FAA inspectors may test
covered personnel.
The FAA intentionally did not define the term ``sufficient.'' It
would be impractical to define the number of personnel each certificate
holder would need to comply with part 139 due to the variations between
airport size and layout, type of operations served, and the local
governing body. If a certificate holder is found to be in noncompliance
with part 139 and its ACM, the FAA will review the number and
qualification of employees used to comply with part 139. This review
may result in the FAA requiring the certificate holder to provide
additional personnel.
Comment: Two commenters state that the FAA has underestimated the
time a certificate holder will need to set up a recordkeeping system
for training records. They note that FAA's recordkeeping estimates for
certificate holders to comply with this section--4,848 hours for
initial recordkeeping hours and 13,909 hours annual recordkeeping--
equates to 8 hours per airport to set up a recordkeeping system. They
claim this is not enough time for any size airport, particularly large
airports with staff numbering in the hundreds, and recommend the FAA
conduct further analysis to develop a more reasonable time estimate. No
cost or operational data is provided to support these comments, nor did
commenters provide an alternate time estimate.
FAA Response: The FAA disagrees. This time estimate was based on
the assumption that current certificate holders have an established
system for maintaining training records for ground vehicle operations,
as required under existing Sec. 139.329 Ground vehicles. Since the
training requirements of this section apply to the same individuals
that must be trained under existing Sec. 139.329, the FAA estimates
that these airport operators would need only 8 hours to update this
system to incorporate new training records required under this section.
Some of these airport operators have automated their recordkeeping
systems, which create and store required records electronically. These
systems may take longer than 8 hours to update, but this section does
not require such automation. As noted above, a paper form that is
reproduced and completed
[[Page 6397]]
for each covered employee is sufficient, and recordkeeping time
estimates are based on such a system.
Recordkeeping time estimates for newly certificated airports also
were determined to be eight hours. Since a simple paper system is
acceptable for complying with the recordkeeping requirements of this
section and these airport operators have small staffs, the FAA
determined operators of such airports would need no more than a day to
establish such a system.
The time needed to update recordkeeping systems may be further
reduced by changes made to paragraph (c) that limit training to
personnel that enter movement areas. This change may reduce the number
of records that need to be maintained.
Section as Adopted: This section is adopted with changes. As
discussed above, modifications have been made to paragraph (c). This
paragraph now stipulates that training required under this section is
limited to personnel that enter movement areas to perform duties.
Additionally, new language has been added to specify the five subject
areas that required training must include and to require recurrent
training every 12 months.
Several modifications were made to paragraph (d) to clarify
requirements for training records. Now, only records of training given
after the effective date of the rule need to be maintained, and such
records must be kept for 24 consecutive calendar months.
In addition, two new paragraphs have been added. New paragraph (e)
identifies other new and proposed part 139 training requirements. New
paragraph (f) clarifies that a certificate holder can use individuals
other than its own employees to comply with part 139.
Language from proposed Sec. 139.323(d) that specified the
conditions that a certificate holder must meet in order to use an
independent organization or designee to conduct fuel fire safety
inspections was moved to new Sec. 139.303(f) and revised so it is
applicable to all sections. A certificate holder that chooses to use a
third party to comply with a part 139 requirement is still required to
ensure that the third party's duties and responsibilities are included
in the ACM and records are maintained to show that the third party is
in compliance with part 139 and the ACM. This would include any
training required under part 139. The certificate holder using a third
party is still fully responsible for meeting part 139 requirements.
Section 139.305 Paved Areas
Proposal: This section contained existing requirements for
maintaining paved areas used by air carrier aircraft. All certificate
holders were required to maintain paved areas, including loading
aprons, parking areas, taxiways, and runways, in a manner that
adequately supports air carrier aircraft operations.
The FAA proposed few changes to these requirements. The terms
``full strength'' and ``shoulder'' were deleted from paragraph (a)(1)
to eliminate confusion as to which areas to apply the 3-inch abutting
surface limitation. Also, language stating specific series numbers
within the AC system was changed to a general reference to the AC
system.
Comment: One commenter recommends the FAA expedite the rulemaking
for continuous friction measuring equipment. Specifically, the
commenter suggests that the FAA publish a supplemental notice of
proposed rulemaking so requirements for friction measurements could be
included in this final rule.
FAA Response: The FAA disagrees. As noted in the proposal (65 FR
38641), this rulemaking intentionally does not address runway friction
measurement (both winter and maintenance) as the ARAC is already
considering this matter. Issuing a supplemental rulemaking would
unnecessarily delay this rulemaking.
Section as Adopted: This section is adopted with one clarification.
A sentence has been added to paragraph (a)(3) clarifying that a
pavement crack and surface variation must be immediately repaired if it
produces loose aggregate or other contaminants.
Section 139.307 Unpaved Areas
Proposal: This section contained existing requirements for
maintaining unpaved areas used by air carrier aircraft. All certificate
holders were required to maintain unpaved areas, including loading
aprons, parking areas, taxiways, and runways, in a manner that
adequately supports air carrier aircraft operations.
Comment: No comments were received.
Section as Adopted: This section is adopted as proposed.
Section 139.309 Safety Areas
Proposal: This section contained existing requirements for the
establishment and maintenance of a safety area for each runway and
taxiway available for air carrier use. Except for minor changes to
paragraphs (a) and (c), these requirements remained the same and were
applicable to all part 139 airports.
Paragraph (a) was revised to require that certificate holders
ensure runway safety areas are maintained in accordance with the
standards of this section, unless otherwise approved in the ACM.
Further, paragraph (c) was revised to make a general reference to the
availability of the AC system.
Comment: A commenter recommends eliminating the clauses in
paragraph (a) that ``grandfathers'' nonstandard safety areas and
imposes a deadline for all part 139 certificated airports to have at
least a 1,000-foot safety area at the end of each air carrier runway.
The commenter also suggests that if land is not available to achieve
the 1,000-foot safety area at the end of the runway, the FAA should
require part 139 certificate holders to use alternate methods, such as
arresting materials or declared distances, to achieve a similar level
of safety.
FAA Response: The FAA disagrees. As noted in the proposal (65 FR
38650), compliance dates listed in paragraphs (a)(1) and (2) are part
of a ``grandfather'' clause to allow existing safety areas that were
adopted when part 139 was amended in 1987 (52 FR 44276, November 18,
1987.) Before 1987, many airport operators invested resources to
develop safety areas before standards were established. Further,
physical limitations of airports resulted in establishment of some
safety areas that did not meet the standard.
In developing the proposal, the FAA did consider removing these
grandfathering clauses but determined the most efficient means to
ensure all safety areas at part 139 certificated airports meet current
standards is to continue to do so through AIP-funded runway/taxiway
renovation projects. Airport operators that accept AIP funds for runway
or taxiway renovations are obligated under grant assurances to ensure
that such renovations meet current standards, including those for
runway safety areas. Since 1988, many safety areas at part 139 airports
have been brought up to current standards through this process. Due to
the advanced age of the remaining runways and taxiways, similar
renovation or replacement should occur in the next few years, and
associated safety areas also should be brought up to current standards
if necessary. Where terrain does not permit a standard safety area, the
FAA will require alternative methods of compliance, such as those
recommended by the commenter, to be developed on a case-by-case basis.
Section as Adopted: The section is adopted as proposed, except for
some minor administrative language changes for clarity.
[[Page 6398]]
Section 139.311 Marking, Signs, and Lighting
Proposal: This section contained existing requirements for runway
and taxiway markings, signs, and lighting. This section was retitled,
and several clarifications were made to correspond to changes made to
the certification process (proposed Sec. 139.203, Contents of airport
certification manual) and to separate marking, signs, and lighting
requirements into three distinct paragraphs.
A change was made to existing marking requirements to clarify
standards for taxiway edge markings. In addition, the word ``runway''
was deleted from the term ``runway holding position markings'' in this
paragraph to permit special aircraft operations that require holding
position markings other than those located prior to the runway.
Sign requirements were relocated to a new paragraph (b) and revised
to require Class I, II, and IV airports operators to internally
illuminate all required signs. Class III airports were required to
internally illuminate only holding position and instrument landing
system (ILS) critical area signs. In addition, language was added to
provide for those instances where an airport has a runway without edge
or in-pavement lighting and thereby does not have a power source to
internally illuminate signs.
References to 14 CFR part 77 concerning obstructions were deleted,
language pertaining to lowest minimums authorized for a runway was
modified, and new language was added to require the certificate holder
to comply with this section in a manner satisfactory to the FAA. In
addition, expired implementation dates were deleted and a new
compliance date was proposed for Class III airports.
Comment: One commenter expresses support for revised language that
may provide relief for airport operators that have runways without a
power source and are unable to internally illuminate required signs.
This commenter commends the FAA's pledge in the proposal (65 FR 38650)
to work with such airport operators to develop alternative signs until
funding is available to install a power source. The commenter states
this approach is practicable and should accommodate a variety of
equally safe solutions, such as retroreflective signs.
FAA Response: The FAA agrees.
Comment: Two commenters state the requirement to illuminate all
mandatory signs will have a financial impact on airport operators,
particularly on operators of small airports. One of these commenters
suggests that operators of small airports be allowed to use
retroreflective signs. The other commenter, an operator of a large
Class I airport, notes that this requirement would have a financial
impact but does not provide financial or operational data.
FAA Response: The FAA agrees that there will be costs associated
with the requirement to internally illuminate all required signs and
has addressed these costs in the regulatory evaluation. Nonetheless,
several factors will help mitigate such costs, particularly for
operators of small airports.
Operators of Class III airports will be required to internally
illuminate only mandatory holding position signs, thereby reducing the
number of signs these small airport operators must illuminate. Further,
these airport operators can apply for Federal funds to purchase and
install these signs. While there is no guarantee that Federal funds
will be available and airport operators must still provide matching
funds, most current part 139 certificate holders installed their
current sign systems using Federal funds. The FAA anticipates this will
be the same for operators of airports who will be newly certificated
under this rule.
Also, as discussed above, the FAA has committed to work with
airport operators to develop alternative means of compliance, including
the use of retroreflective signs, until funding is available to
purchase and install required signs. In addition, Class III airports
have an additional 3 years after the effective date of this final rule
to comply with sign requirements. As noted in the proposal (65 FR
38651), this additional compliance time will allow time to develop a
sign plan, order and take delivery of signs, and install signs.
Operators of small airports that will be classified as either Class
I, II, or IV airports should already comply with the requirements of
this section. For the past 10 years, the FAA has been funding the
installation of internally illuminated sign systems at part 139
airports that comply with the requirements of this section. Any changes
that need to be made to these systems as the result of this rule
likewise will be eligible for Federal funding.
Comment: In response to a request for comments, one commenter
states its opposition to the use of retroreflective signs at Class III
airports because of concerns that retroreflective signs might not be
visible to all air carrier pilots. This commenter, the Air Line Pilots
Association (ALPA), raised this issue as a member of the ARAC, and its
objection to retroreflective signs was discussed in the proposal (65 FR
38650).
In particular, ALPA is concerned that retroreflective signs may not
be visible to all air carrier pilots because of differences in aircraft
configurations and the location of taxi lights. The association states
that the basis for this position is ``the collective experience'' of
its 58,000 airline pilot members and requests that the FAA provide any
information it has to the contrary. ALPA also recommends the FAA
conduct tests of retroreflective signs at the FAA's Technical Center in
Atlantic City, NJ.
FAA Response: The FAA disagrees. Other than ALPA's comment, the FAA
did not receive any other comment that would support the claim that
retroreflective signs are not visible to pilots of certain air carrier
aircraft, as requested in the proposal (65 FR 38650). Nor did ALPA
provide data collected from its membership that identifies the aircraft
type from which pilots have experienced problems seeing retroreflective
signs or the airports at which these signs are located.
The FAA has determined that retroreflective signs provide a
reasonable means for airport operators to install a sign that can be
seen in most low-visibility conditions when an internally illuminated
sign is impractical or cost prohibitive. Other than ALPA's claim that
retroreflective signs are problematic, the FAA has received no other
report of problems with these signs from the industry or from aircraft
operators. Accordingly, the FAA will allow Class III airports to use
retroreflective signs to identify taxiing routes.
Comment: In response to the FAA's request for comments on whether
the installation of unlighted retroreflective signs would provide an
adequate sign system for Class III airports, a Class III airport
operator provided its opinion on retroreflective markers used at its
facility to mark the runway edge. This commenter states that such
retroreflective markers ``do not provide adequate lighting for aircraft
on approach to landing.'' The commenter notes that such markers are
only effective for taxiing aircraft and cannot be seen from the air.
This commenter concludes that retroreflective markers are dangerous and
unsafe during low-visibility weather conditions and that only lighted
runways with lighted signs can assure maximum runway usage and improve
safety.
FAA Response: While the FAA was not seeking comments on the use of
retroreflective markers on runway edges, the FAA disagrees with
commenter's conclusion that use of
[[Page 6399]]
retroreflective markers creates an unsafe condition. During certain
visual conditions and aircraft operations, retroreflective markers are
an acceptable means to mark the edge of pavements.
Further, the commenter incorrectly assumes that retroreflective
markers are intended to be seen from the air. Retroreflective markers
are intended only to provide visual guidance to a pilot operating an
aircraft on the ground. Lighting that provides visual decent guidance
information to pilots during an approach to the runway is the only
airport lighting intended to been seen in the air. This lighting, known
as approach lighting, is never retroreflective.
The FAA determines the type of runway lighting, including approach
lights, to be used based on runway takeoff and landing minimums. Runway
takeoff and landing minimums are the horizontal and vertical visual
distances the pilot must be able to see during poor meteorological
conditions in order to use the runway. The FAA considers many factors
in determining takeoff and landing minimums, such as runway length and
obstructions near the runway, and these minimums will vary from runway
to runway.
While Sec. 139.311 does require the certificate holder to provide
and maintain runway lighting, the standard is determined independently
of the part 139 airport certification process. This is because the FAA
authorizes runway takeoff and landing minimums for all types of
runways, including many located at airports that are not certificated
under part 139. In some instances, the FAA may authorize minimums that
would permit a part 139 certificate holder to use retroreflective
markers to denote the runway edge.
The FAA agrees with the commenter that lighted runways and signs
improve safety, but it will not require part 139 certificate holders to
install runway lighting and markings other than those necessary for the
authorized takeoff and landing minimums.
Comment: One commenter, ALPA, recommends the FAA expedite the
rulemaking for distance remaining signs (signs that are installed every
1,000 feet along the runway to advise pilots how much of the runway
remains). Specifically, ALPA suggests that the FAA publish a
supplemental notice of proposed rulemaking so requirements for distance
remaining signs could be included in this final rule.
FAA Response: The FAA disagrees. As noted in the proposal (65 FR
38641), this rulemaking intentionally does not address distance
remaining signs. This matter was referred to the ARAC. At its meeting
on June 21, 2001, the ARAC accepted the working group's majority report
on distance remaining signs. The majority report recommended that no
regulation change was needed to require distance remaining signs as the
vast majority of airport operators have already installed such signs on
their air carrier runways. In addition, ARAC considered ALPA's minority
position that the FAA should publish a notice of proposed rulemaking
requiring distance remaining signs. Both the majority and minority
opinions are included in the recommendation forwarded to the FAA.
Comment: A commenter recommends that the final rule require
certificate holders to install precision approach path indicators
(PAPI) at the end of each air carrier runway. A PAPI is a system of
lights normally installed on the left side of the runway providing
visual descent guidance information to pilots during an approach to the
runway. The commenter believes this is necessary, as PAPIs are
important visual aids that help ensure pilots make stabilized
approaches.
FAA Response: The FAA disagrees that the final rule should include
a requirement for PAPIs. Requiring the installation of PAPIs goes
beyond the scope of the proposal and would require a supplemental
notice of proposed rulemaking. Further, the use of a PAPI is determined
by the type of instrument approach that the FAA has authorized for the
runway and may not be appropriate for all runways at part 139 airports.
Section as Adopted: This section is adopted with minor changes. A
clarification was made to Sec. 139.311(a)(3). The word ``taxiway'' has
been inserted in front of the words ``edge markings'' to clarify that
the edge markings required under paragraph (a)(3) are taxiway edge
markings. Runway edge markings are already addressed in paragraph
(a)(1). Additionally, paragraph (c)(4) was edited for clarity.
Section 139.313 Snow and Ice Control
Proposal: This section contained existing requirements to develop
and implement snow and ice control plans. These requirements applied to
those Class I, II, and III airports located in an area where snow and
icing conditions regularly occur.
No changes were proposed to the existing requirements that snow and
ice plans include procedures for removal and control of snow and ice
accumulations, and that notification be provided to air carriers when
movement areas are unusable due to snow and ice. Minor changes were
made to paragraph (a). The term ``regularly'' was deleted and new
language added to clarify that the FAA will determine which airports
require snow and ice control plans. In addition, the standard for
positioning snow off movement areas was modified by deleting the term
``full strength.'' References to airport condition reporting
requirements also were updated to correspond to new section numbering,
and references to specific ACs were replaced with a generic reference.
Comment: A commenter states that by omitting the term ``regularly''
in paragraph (a) and replacing it with the language ``as determined by
the Administrator,'' the requirement for a snow and ice control plan
would be subject to interpretation absent any specific guidelines.
FAA Response: The FAA disagrees. The term ``regularly'' is not
currently defined and is subject to interpretation. The new language
allows greater flexibility for the certificate holder and the FAA. As
the plan will be specific to each airport, there should be no ambiguity
as to what each airport is requested to do.
Section as Adopted: This section is adopted with changes. An
editorial change was made to proposed paragraph (b)(5) to update a
section designation number and another was made to proposed paragraph
(b)(6) to delete the redundant language ``procedures for snow and ice
control.''
Section 139.315 Aircraft Rescue and Firefighting: Index Determination
Proposal: This section contained existing criteria for determining
the certificate holder's level of ARFF coverage, or Index. The levels
of ARFF coverage are divided into five categories, or Indexes, that are
used in other sections to prescribe minimum ARFF services and equipment
appropriate to the size of aircraft served. This did not change in the
proposal.
While Index criteria remained the same, a change was made to
paragraph (c) to clarify which Index is required when the largest
aircraft serving a certificated airport has less than the minimum
number of daily aircraft departures. In addition, language was added to
emphasize that in all circumstances, the minimum ARFF Index will be
Index A.
Comment: Many of the comments received on this section express
concerns that the proposal did not update ARFF standards. Some of these
commenters suggest a complete revision of ARFF standards, while others
recommend changes for specific
[[Page 6400]]
standards, including the criteria used for determining Index.
FAA Response: The FAA agrees that some part 139 ARFF standards may
need revisions. However, the proposal did not include any major
revision of ARFF standards. The FAA has asked ARAC to review this
matter. The ARAC has created an ARFF Working Group to review part 139
ARFF standards and to propose new regulatory language, as appropriate.
Comments on this proposal that address specific ARFF standards will be
forwarded to this ARFF Working Group for consideration. Otherwise,
these comments will not be addressed as they are beyond the scope of
the NPRM.
Comment: A commenter supports the FAA's decision to expand part 139
requirements to small commuter airports, noting that without part 139
certification, there is no incentive for these airports ``to meet the
minimal lifesaving measures in part 139.'' The commenter also states
that it supports the upcoming ARAC review of part 139 ARFF standards,
particularly standards for response times, staffing, and extinguishing
agent amounts.
FAA Response: The FAA agrees.
Comment: A Class I airport operator states that all certificate
holders should be required to meet at least Index A requirements,
subject to limited exemptions. The commenter states that airport
operators should work with local firefighting agencies to determine the
most economical and efficient means of complying with ARFF requirements
and include the resulting agreement in the airport's emergency plan.
The commenter also notes that employees of smaller airports should be
cross-trained in ARFF duties to minimize the financial impact.
FAA Response: The FAA agrees. All certificated airports serving
both scheduled and unscheduled operations are required to comply with
at least Index A ARFF requirements, subject to the limited exemption
discussed in the analysis of Sec. 139.111. In addition, alternative
compliance measures have been established for Class III airports (see
the section-by-section analysis of Sec. 139.315, Aircraft rescue and
firefighting: Index determination).
Comment: Nine commenters oppose the requirement that all
certificated airports comply with at least minimum Index A
requirements. These commenters, Class II and III airport operators and
sponsors, state that complying with the requirements of proposed Sec.
139.315, ARFF: Index determination, Sec. 139.317, ARFF: Equipment and
agents, and Sec. 139.319, ARFF: Operational requirements, would pose a
financial burden and detrimentally affect air carrier service at their
airports. Some of these commenters provide cost and operational data to
support their position. Many state that without Federal funds to cover
ARFF costs, they would consider not serving air carrier operations
covered by part 139, while others request an exemption from ARFF
requirements should the FAA decide to adopt the proposal.
Additionally, commenters state that airport sponsors will not be
able to provide funds needed to comply with ARFF requirements,
particularly if required to hire additional personnel. A few of these
commenters also note that local laws limit the use of local funds for
Federal mandates or restrict the collection of taxes. Several
commenters also question the accuracy of the FAA's cost estimates.
FAA Response: The FAA agrees that in some instances the costs to
comply with even minimum ARFF requirements may be prohibitive at
certain airports. As discussed earlier, the FAA will consider requests
for relief from ARFF requirements under 49 U.S.C. 44706 in such
instances where compliance with such requirements would be unreasonably
costly, burdensome, or impractical and alternative compliance measures
have been established for Class III airports (see the section-by-
section analysis of Sec. 139.315, Aircraft rescue and firefighting:
Index determination).
The operational and cost data provided by these commenters is
addressed in the regulatory evaluation. In reviewing this data, the FAA
noticed that several commenters assumed that either they would have to
provide certain ARFF services not required or comply with ARFF
requirements in a manner that far exceeds what was proposed. These
issues are addressed separately under the appropriate section.
The implementation of this rule will require the FAA to either
issue new certificates or reissue existing certificates. During this
certification process, the FAA will work with airport operators to
determine the appropriate level of ARFF. Depending on the commenter's
existing emergency services and airport operations, there may be
several compliance options available that could be tailored to the
airport to significantly reduce costs. For example, existing airport
personnel could be crossed-trained to perform ARFF duties, and Federal
funds may be available to purchase ARFF equipment. In the event that
additional ARFF equipment and personnel are needed, the FAA will assist
the airport operator in applying for Federal funds and provide guidance
on acquiring ARFF equipment, training events, and the availability of
regional resources. This may include a local network of ARFF and other
firefighting personnel that provide guidance, training, and other
support to smaller airports.
Some commenters also request Federal funds to cover ARFF costs. As
discussed previously, safety equipment (including ARFF equipment) that
is required under part 139 is eligible for AIP funds. However, as of
the date of the publication of this final rule, the AIP authorizing
statute does not allow Federal funds to be used for ARFF labor and
training costs.
Comment: Four commenters express concerns that the proposal did not
address ARFF coverage for cargo aircraft operations. One of these
commenters also states that ARFF requirements should apply to ``wide-
body aircraft'' operations as well.
FAA Response: The FAA partly disagrees. As discussed in section-by-
section analysis of Sec. 139.1, 49 U.S.C. 44706(a) limits the FAA's
authority to grant AOCs to those airports serving certain passenger air
carrier operations. Congress would have to amend this statutory
authority before the FAA could issue AOCs based solely on air cargo
operations and then, subsequently, require ARFF coverage during such
operations.
However, the FAA already has the authority to certificate airports
serving aircraft described as ``wide-body charters'' (unscheduled air
carrier operations in aircraft with more than 30 seats). In the
proposal, certificate holders serving both scheduled and unscheduled
operations were required to provide ARFF coverage appropriate to the
size of aircraft served. This requirement has been adopted without
change.
Comment: Two commenters recommend that smaller airports be allowed
to use alternative methods to provide ARFF coverage. One commenter
suggests the FAA use the majority ARAC working group recommendation to
allow airports with a low frequency of air service to coordinate an
emergency plan with reasonable response times with the local fire
department. The other commenter recommends the FAA reach an agreement
with the U.S. Department of Defense (DOD) to provide ARFF training or
expand the number of federally funded regional ARFF training centers.
This commenter also recommends that the FAA permit ARFF services to be
performed by a tenant air carrier, fixed
[[Page 6401]]
base operator (FBO), or a private company. Additionally, both
commenters suggest that smaller airports be allowed to house ARFF
equipment at a local fire station and train firefighters at that
station in ARFF procedures.
FAA Response: The FAA agrees in part. As adopted, the final rule
allows Class III airports to either comply with Index A ARFF
requirements or use alternative means to comply with ARFF requirements
that provide a comparable level of safety, as approved by the
Administrator. Such alternate means must be included in the FAA-
approved ACM and, at a minimum, address four specific operational
items, including type of equipment to be provided and airport
familiarization training for emergency service providers. Alternative
rescue and emergency services may be those used to comply with airport
emergency plan requirements under Sec. 139.325, Airport emergency plan.
Commenters' recommendations to use non-airport personnel to perform
ARFF duties are already acceptable under existing FAA policy. Part 139
does not require a certificate holder to use only professional
firefighters. The certificate holder has the discretion to use whomever
it deems appropriate to meet ARFF personnel requirements so long as
such individuals are trained in the subject areas specified in Sec.
139.319. These personnel could include personnel from a local fire
station, an airport tenant, a private company, or DOD facilities
adjoining the airport. This did not change in the proposal.
The proposal did not limit a certificate holder's ability to make
arrangements with the local fire station to store equipment and provide
all or part of required ARFF coverage. The FAA allows ARFF equipment to
be housed at the local fire station as long as the equipment purchased
with Federal funds is used in compliance with grant assurances and such
an arrangement allows the certificate holder to comply with part 139
vehicle readiness and response time requirements. This also is the case
for firefighters based at the local fire station if they are trained
and equipped in accordance with Sec. 139.319. Many certificated
airports already have made such arrangements with their local fire
departments, and the FAA encourages an airport operator that is
proposing an alternate means of compliance under Sec. 139.315(e) or
petitioning for relief from ARFF requirements under Sec. 139.111 to
consider such arrangements in its petition.
The FAA also makes use of DOD staff and resources wherever
possible, particularly at joint-use and shared-use airports, and
routinely coordinates with DOD on ARFF research projects. Further, the
FAA encourages certificate holders to use federally funded regional
ARFF training facilities. However, the FAA does not foresee funding the
construction of more of these training facilities, as existing
facilities are not being used to their full capacity.
Comment: One commenter recommends that certificate holders use
military surplus ARFF vehicles to help offset ARFF costs.
FAA Response: The FAA agrees. For many years, airport operators
have been acquiring Federal surplus equipment through the surplus
property programs of the U.S. General Services Administration and the
DOD.
Section as Adopted: The section is adopted with changes. As
discussed above, a new paragraph (e) has been added to allow
certificate holders of a Class III Airport Operating Certificate to
alternate means to comply with ARFF requirements. The new paragraph
specifies that such alternate means must be included in the FAA-
approved ACM and address four specific operational items, including
type of rescue and firefighting equipment to be provided.
Section 139.317 Aircraft Rescue and Firefighting: Equipment and Agents
Proposal: This section contained existing standards for ARFF
equipment and fire-extinguishing agents. Several modifications were
made to these standards. The term ``clean agent'' was added to describe
a new category of fire extinguishing agents that replace halon 1211.
The phrase ``unless otherwise authorized by the Administrator'' was
added to provide relief to airports waiting for Federal funds to
purchase adequate equipment or to address other local circumstances
that may require temporary use of alternative equipment or
extinguishing agents.
In addition, standards for extinguishing agent substitutions were
removed, leaving only the requirement that the FAA must authorize the
use of alternate extinguishing agents. Likewise, language was deleted
that provided relief to certain airport certificate holders whose ARFF
vehicles were unable to comply with the standards required when the
regulation was amended in 1987.
All certificate holders were required to comply with this section.
A 2-year compliance date was proposed for those airport operators
required for the first time to comply with Sec. 139.317 (proposed Class
II, III, and IV airports).
Comment: Many of the comments on this section recommend changes to
specific standards, including the number of required ARFF vehicles,
equipment carried on these vehicles, and the type and quantity of
extinguishing agent.
FAA Response: As discussed above, the NPRM did not propose any
major revision of ARFF standards, and the ARAC has since accepted the
task to review part 139 ARFF standards. Comments received that address
specific ARFF standards in this section will be forwarded to the ARAC
for consideration. Otherwise, these comments will not be addressed as
they are beyond the scope of the NPRM.
Comment: The National Transportation Safety Board (NTSB) comments
that it issued Safety Recommendation A97-107 following an aircraft
accident in Quincy, IL, on November 19, 1996 (see 65 FR 38652 for a
summary of this accident). This safety recommendation asked the FAA
``to develop ways to fund airports that are served by scheduled
passenger operations on aircraft having 10 or more passenger seats and
require these airports to ensure that ARFF units with trained personnel
are available during commuter flight operations and are capable of
timely response.'' The NTSB further states that this proposal is an
acceptable approach to addressing this safety recommendation and that
it supports the proposed revisions that require airport operators to
provide ARFF coverage during scheduled operations of air carrier
aircraft with 10 or more seats. The NTSB also affirms its position that
commuter airline passengers are entitled to one level of safety.
FAA Response: The FAA agrees. However, comments received from
operators of small airports indicate that they are unable to comply
with part 139 in the same manner as large airports. The limited number
of annual enplanements received by these facilities makes it difficult
for them to collect enough revenue to allow them to comply with full
Index A ARFF requirements. This is particularly the case at airports
with fewer than 10,000 annual enplanements.
As discussed earlier, the FAA plans to use its exemption authority
in instances where compliance with part 139 would be unduly burdensome,
costly, or impractical. Additionally, the FAA will use its specific
authority to grant limited exemptions from ARFF requirements under 49
U.S.C. 44706 to require safety measures at all airports serving small
air carrier aircraft. Any airport operator that petitions for relief
from ARFF
[[Page 6402]]
requirements must provide certain evidence that such requirements are
unreasonably costly, burdensome, or impractical.
Regarding alternative funding sources, Congress recently directed
the FAA to set aside a portion of existing AIP funds to assist airport
operators in complying with the requirements of this rule (see 49
U.S.C. 47116(e)). Beyond that, the FAA has very limited options for
developing new funding mechanisms, and Congress would have to
appropriate any additional Federal funds.
Comment: Three commenters state that the quantity of water required
to be carried for foam production by Index E vehicles under Sec.
139.317(e)(2) was the same as the quantity of water required for Index
D vehicles under Sec. 139.317(d)(2). They note the current regulation
requires more water for Index E vehicles than Index D and asked if this
change was a typographical error.
FAA Response: The proposed change to Sec. 139.317(e)(2) was an
error. No change was intended, and this paragraph has been corrected.
The total quantity of water for foam production still must be 6,000
gallons for Index E vehicles.
Comment: A commenter recommends eliminating the ``grandfather''
provisions for ARFF vehicles and to establish a date certain by which
all ARFF vehicles used by certificate holders must meet the
requirements of this section.
FAA Response: The FAA agrees and had intended to delete paragraph
(f) in the proposal. A correction was issued on August 21, 2000 (65 FR
50669).
Proposed paragraph (g)(3) also contains a ``grandfather'' provision
for ARFF vehicles. This paragraph has been deleted to be consistent
with the removal of paragraph (f). Consequently, as of the effective
date of this rule, most certificate holders are required to use ARFF
vehicles that comply with the requirements of this section. Class II,
III, and IV airport operators will have additional time to comply.
Comment: Four commenters recommend an extension of the deadline,
ranging from an additional 1 to 3 years, for Class II, III, and IV
airport operators to comply with this section. These commenters all
state that airport operators need more time to acquire funding, and
several noted that local government budget processes would not allow
these airport operators to secure the necessary funds within the
proposed 2-year deadline.
FAA Response: The FAA agrees that additional compliance time is
warranted and has amended paragraph (k) to allow Class II, III, and IV
airport operators an additional year to comply. These airport operators
now have 3 years from the effective date of this rule to comply with
this section or request an exemption under Sec. 139.111. The FAA has
determined that 3 years is a reasonable period for most airport
operators to apply for and receive Federal funds and acquire local
funds. On a case-by-case basis, the FAA may consider granting
additional time to those airport operators experiencing budgetary or
procurement problems.
Comment: A commenter notes that the proposal states that the FAA
will consider a time extension for airport operators unable to meet
compliance dates proposed in Sec.Sec. 139.317(l) and 139.319(m) but
does not provide criteria by which it would evaluate such requests.
This commenter states that, in contrast, proposed Sec. 139.321
establishes criteria that airports must satisfy before the FAA would
consider an exemption from some or all of ARFF equipment, extinguishing
agent, and operational requirements. The commenter requests that the
FAA make ``clear in the final rule that it will not grant any
extensions of time to the compliance dates, except in extraordinary
circumstances that satisfy strict criteria that the FAA sets forth in
the final rule.''
FAA Response: The FAA partly agrees. Statements made in the
proposal regarding time extensions for airport operators unable to meet
ARFF compliance dates (65 FR 38653 and 65 FR 38654) should have stated
that the FAA would consider granting time extensions to those airport
operators that petitioned for such relief as required under Sec.
139.111. The FAA will consider granting exemptions based on criteria
established in this section.
As discussed earlier, most of the ``strict criteria'' of proposed
Sec. 139.321 that the commenter referenced has been deleted from the
rule. All requirements for petitions for relief from ARFF requirements,
including compliance deadlines, are now contained in Sec. 139.111.
The FAA may consider granting time extensions for compliance in
situations other than extraordinary circumstances. For example, a
certificate holder may petition for relief if it cannot comply with
certain compliance dates because the ARFF vehicle manufacturer has
delayed the delivery of a required vehicle for reasons beyond the
control of the airport operator. Because every petition will be
different due to varying airport size, operations, and organization,
the FAA will consider each request for a time extension on its merits.
Section as Adopted: This section is adopted with changes. As noted
in the August 21, 2000, correction (65 FR 50669), the deletion of
proposed paragraph (f) resulted in the re-designation of Sec.
139.317(g) through (l) as paragraphs (f) through (k).
For the reasons discussed above, the quantity of required water in
paragraph (e)(2) has been corrected to read 6,000 gallons, and
paragraph (f)(3) has been deleted. Paragraph (k) also has been modified
to allow Class II, III, and IV airport operators an additional year to
comply with the requirements of this section.
In addition, paragraph (j) has been changed. The phrase ``in the
150 series'' has been deleted and the word ``standards'' replaced by
the word ``methods.'' As discussed in the proposal (65 FR 38643),
similar changes were made throughout the rule to language referencing
advisory circulars and should have been made to this paragraph as well.
Section 139.319 Aircraft Rescue and Firefighting: Operational
Requirements
Proposal: This section contained existing standards for the
training of ARFF personnel; ARFF vehicle marking, lighting, and
readiness; and emergency access roads. This section also established
criteria for a certificate holder for adjusting ARFF coverage to
correspond to changes in air carrier operations.
Changes were proposed to clarify training requirements for rescue
and firefighting personnel and emergency medical personnel, including
requirements for training records. In addition, all references to
specific series numbers within the AC system were deleted, and changes
were made to reflect changes in terminology used to describe fire-
extinguishing agents. Several changes also were proposed to require the
certificate holder to equip ARFF vehicles with guidance material for
responding to hazardous materials/dangerous goods incidents.
It was proposed that all certificate holders be required to comply
with this section. A 2-year compliance date was proposed for those
airports required to comply with this section for the first time
(proposed Class II, III, and IV airports).
Comment: Many of the comments received on this section recommend
changes to specific standards, including training requirements for ARFF
and medical personnel, response times, and vehicle readiness. Some of
these commenters also recommend that these standards be reconciled with
other
[[Page 6403]]
Federal and industry firefighting standards.
FAA Response: As discussed previously, the NPRM did not propose any
major revisions of ARFF standards and the ARAC has since accepted the
task to review part 139 ARFF standards. Comments received that address
specific ARFF standards in this section will be forwarded to the ARAC
for consideration. Otherwise, these comments will not be addressed as
they are beyond the scope of the NPRM.
Comment: Two commenters state that cross training of airport
personnel could reduce the cost of complying with ARFF requirements.
One of these commenters notes that if an airport operator has
management and maintenance personnel, the actual number of staff
required for ARFF would be low. This commenter reasons that the FAA's
willingness to be flexible with airport operators currently required to
comply with Index A requirements, particularly with staffing issues,
overcomes the argument made by other commenters that ARFF requirements
are too onerous. The commenter also states that small airport operators
would not be that much more burdened if they must comply with existing
requirements for ARFF response capability during air carrier operations
for a defined period before and after air carrier aircraft operations.
Noting that current airport staff or the local fire department could be
used to meet ARFF response requirements, this commenter believes that
the annual cost for initial compliance with ARFF equipment and training
could be less than $20,000, excluding the staffing costs, and half this
amount annually thereafter.
FAA Response: The FAA agrees in part. This section does not require
an airport operator to use only professional firefighters or limit the
duties of personnel used to comply with this section. This section only
requires certificate holders to use personnel to perform rescue and
firefighting duties that have been trained in the subject areas
specified in paragraph (i). Accordingly, the certificate holder could
choose to train and use existing employees for ARFF duties, but each
airport situation is unique. The FAA cannot make a general conclusion
about the burdens imposed on any airport operator without more
information.
Comment: Several commenters state that if they are required to
comply with part 139 ARFF requirements, local laws would require them
to hire professional firefighters.
FAA Response: The FAA agrees that local laws and ordinances may
require the airport operator, in order to comply with part 139
requirements, to go beyond what the FAA requires. If local laws make
compliance with part 139 requirements unreasonably costly, burdensome,
or impractical, the certificate holder can petition the FAA for relief,
as specified under Sec. 139.111. In addition, holders of Class III
Airport Operating Certificate may propose under Sec. 139.315(e) an
alternative means of compliance with ARFF requirements that may better
address local laws and ordinances.
Comment: Several commenters note that the FAA and the U.S.
Occupational Safety and Health Administration (OSHA) have different
standards for the number of personnel required for ARFF. Specifically,
commenters questioned the applicability of the ``two-in/two-out''
policy contained in the Respiratory Protection Standard (29 CFR
1910.134) to aircraft firefighting scenarios. This standard requires
that firefighters engaged in fighting interior structural fires work in
a buddy system that requires at least two workers in the structure and
at least two workers outside in case a rescue of the firefighters is
needed. Commenters state that this standard would require them to hire
additional personnel.
FAA Response: The FAA disagrees. The OSHA Respiratory Protection
Standard does not require certificate holders to hire more ARFF
personnel than normally would be required to comply with part 139. In a
legal memorandum developed jointly by the FAA and the OSHA (dated July
7, 1999) and placed in the docket, it was determined that the
respiratory standard is applicable only to personnel fighting a fire
within a structure and not an outside aircraft fire. As the primary
purpose of ARFF personnel is to suppress the external aircraft fire and
establish an escape route for the aircraft crew and passengers, the
``two-in/two-out'' rule does not apply to ARFF.
Comment: A commenter states that neither the FAA nor an airport
operator has the authority to require a private company to provide ARFF
services without compensation.
FAA Response: The commenter misunderstood the provision that allows
an airport operator to use non-airport personnel to comply with the
part 139, including ARFF requirements. The FAA gives an airport
operator the discretion to use personnel other than its own employees
to comply with part 139 requirements. Accordingly, an airport operator
may decide that the best approach to complying with ARFF requirements
is to arrange for such a service through a tenant or a contractor. This
approach is not required under part 139, but it is an acceptable means
of compliance as long as the tenant or contractor complies with the
part 139 requirements. If compensation is required for such services,
it is a matter for the airport operator to negotiate with the tenant or
contractor.
Comment: Three commenters state that the requirement to have on-
airport ARFF that must respond within a specified time period will be
an unreasonable financial burden on a small town and would adversely
affect the air carrier service into such communities. Depending on the
location of the aircraft emergency, one commenter notes that off-
airport emergency personnel might be in a better position to respond,
especially if the incident is located off the airport.
FAA Response: The FAA disagrees. The requirement of paragraph (a)
specifies that the certificate holder shall provide ARFF services on
the airport during air carrier operations. This does not require the
airport operator to ensure such services are on the airport at all
times. Depending on the frequency of air carrier services, an airport
operator may, and many do, arrange for ARFF services with the off-
airport fire station. This type of arrangement is acceptable so long as
off-airport ARFF services are on the airport 15 minutes prior to and 15
minutes after air carrier operations.
As noted in the proposal at 65 FR 38663, certain airport operators
that have arranged for the local fire department to occasionally come
to their facilities to cover infrequent large air carrier aircraft
operations will have to arrange for additional ARFF coverage for small
air carrier aircraft operations. Since small air carrier aircraft
operations tend to be more frequent at such airports, ARFF services may
be needed more often than the local fire department can provide.
If the certificate holder and the FAA cannot develop a reasonable
alternative means of compliance, the certificate holder may ask the FAA
to grant an exemption under Sec. 139.111 or in the case of a Class III
airport, propose an alternative means of compliance with ARFF
requirements under Sec. 139.315(e) that may eliminate the need for off-
airport emergency to comply with a timed response.
Comment: A commenter states that part 139 airports should be
required to have annual ARFF training at one of the regional training
facilities funded by the FAA that use propane fire simulators. The
commenter does not support airport operators using fossil fuel fires
for such training because of the environmental impact and lack of
repeatable training
[[Page 6404]]
scenarios needed to develop firefighting skills. The commenter also
states that the cost of ARFF training for airports with less than
500,000 annual enplanements should be AIP eligible.
FAA Response: The FAA disagrees. Regional ARFF training centers are
only one option available for complying with the fire training
requirements of Sec. 139.319(i)(3). Airport operators may have other
alternatives to comply with this requirement that are less costly or
more convenient.
Regarding the funding of ARFF training costs, Congress would have
to amend the AIP authorizing statute before AIP funds may be used for
ARFF training. As of the date of the publication of this final rule,
ARFF equipment is AIP-eligible only if such equipment is required under
part 139 or if the FAA has determined that it will contribute
significantly to the safety or security of persons or property at an
airport.
Comment: A commenter states that the amount of time to comply with
the requirements of this section should be extended to allow airport
operators to secure funds, hire personnel, purchase equipment, and
build facilities.
FAA Response: The FAA agrees additional compliance time is
warranted and has amended paragraph (m) to allow Class II, III, and IV
airport operators an additional year to comply. These airport operators
now have 3 years from the effective date of this rule to comply with
this section or request an exemption under Sec. 139.111(b). On a case-
by-case basis, the FAA may consider granting additional time to those
airport operators that petition under Sec. 139.111(a) for additional
time.
Comment: A Class III airport operator states that the cost of
reconstructing the emergency access road required under Sec. 139.319(k)
would be unreasonable. This commenter explains that one section of the
existing emergency access road surrounding the airfield is impassable
for many months of the year due to washouts and drifted snow. The
commenter states the cost of reconstructing the road so it can be
maintained and plowed during winter months is estimated at $500,000.
FAA Response: The FAA agrees that it is possible the commenter may
have to renovate its emergency access road to comply with the
requirements of this section. If the FAA determines such renovation is
necessary for the purposes of part 139, 90 percent of the cost would be
eligible for AIP funds. Should AIP funds not be readily available, or
the airport operator does not have matching funds, the certificate
holder could ask for an exemption under Sec. 139.111. In addition, the
FAA has added language to Sec. 139.315 that allows the holder of a
Class III Airport Operating Certificate to comply with ARFF
requirements by alternative means that may not require the commenter to
maintain an emergency access road (see discussion under Sec.
139.315(e), Aircraft Rescue and Firefighting: Index determination).
Comment: A commenter states that proposed training for emergency
medical personnel is excessive. This commenter points out that such
personnel in its State are only required to receive 40 hours of
training every 3 years. The commenter questions the purpose of
requiring more training than what is required by the local organization
that regulates emergency medical personnel. The commenter requests that
the recurrent training requirement be the same as required by the local
organization.
FAA Response: The FAA agrees. The requirement for annual recurrent
training for emergency medical personnel has been deleted from
paragraph (i)(4). Language requiring such personnel to be trained and
remain current in basic emergency medical services will remain the
same. This will ensure emergency medical personnel receive recurrent
training but at the same frequency required by the local regulating
organization.
Comment: A Class I airport operator states that while it supports
the continuous training of ARFF personnel, the proposal's statement
regarding continuous training will affect how firefighters are trained
at other certificated airports. This commenter explains that the
current regulation could be interpreted to mean that an airport
operator could comply with Sec. 139.319(i) by training ARFF personnel
only once a year. However, the proposal states that the FAA would not
expect ARFF personnel to comply with training requirements with only a
once-a-year training course. The commenter notes that it has a
continuous training program for its ARFF personnel, but if continuous
training is mandated, other airport operators may need more personnel
and equipment.
FAA Response: The FAA disagrees. Continuous training is not
required under Sec. 139.319(i). The statement in the proposal (65 FR
38653) was intended only to encourage ongoing training. As long as ARFF
personnel are trained on the subject areas specified under paragraph
(i), the certificate holder has the discretion to provide this training
in a manner that best suits its needs.
The FAA disagrees that in all instances continuous ARFF training
will require additional personnel and equipment. Many airport operators
find this approach provides better training results and is more cost
effective. These airport operators use their existing airport
personnel, or a combination of airport personnel and those of the local
fire department, to conduct training sessions throughout the year. This
minimizes travel costs often associated with one-time training courses,
and since training sessions are shorter, it reduces the time personnel
are unavailable for ARFF duties.
Comment: A commenter requests clarification on the relationship
between the response requirements of Sec. 139.319(h) and those proposed
in Sec. 139.321, ARFF: Exemptions. Referring to prearranged
firefighting and basic emergency medical response required as a
condition for an exemption under proposed Sec. 139.321, this commenter
questions how the FAA will inspect for the response requirements of
paragraph (h) if the airport operator was granted an exemption from
ARFF requirements under proposed Sec. 139.321.
FAA Response: The FAA agrees. The requirements for requesting an
ARFF exemption have been moved to Sec. 139.111 and modifications made
to the conditions under which the FAA will consider granting an
exemption (see section-by-section analysis of Sec. 139.111).
The FAA will not require a certificate holder to comply with a part
139 requirement if the airport operator has been granted an exemption
from that requirement. In granting an exemption from ARFF requirements,
the FAA requires the certificate holder to provide certain data. The
exemption, plus any conditions, would be included in the ACM. During an
inspection, the FAA will verify that the circumstances that required
the exemption are still applicable and that the certificate holder is
complying with any conditions required by the exemption.
Comment: A commenter states that many of the small communities that
operate Class III airports rely on volunteer firefighters and the
proposed requirements would require these communities to recall
volunteers, or to supplement regular full-time airport employees,
several times a day to cover air carrier flights. The commenter
believes this would be ``a significant burden with questionable
benefit'' for such airports. As an alternative, the commenter suggests
modifying required ARFF response times for Class III airport operators
to allow all required ARFF vehicles at such airports to utilize the
secondary response time specified in paragraph (h)(2)(ii) as their
primary response time.
[[Page 6405]]
FAA Response: The FAA disagrees. The ARFF performance times that
the commenter refers to require at least one mandatory ARFF vehicle to
respond to the midpoint of the farthest air carrier runway within 3
minutes of an alarm and within 4 minutes of an alarm for all other
required vehicles. This secondary time is what the commenter suggests
should be the standard for all responding ARFF vehicles at Class III
airports.
The FAA believes that the requirement for at least one ARFF vehicle
to respond within 3 minutes of an alarm will not be burdensome for
Class III airport operators. These airports typically have simple
pavement configurations that allow ARFF vehicles to reach the midpoint
of the farthest runway within the required time from their standby
positions. It is from this standby position that ARFF performance times
are measured. Instead, Class III airport operators are more likely to
have difficulty arranging for ARFF coverage to be available at a
standby location 15 minutes before and after all covered air carrier
operations.
As discussed previously, an airport operator that is unable to
comply with any ARFF requirement, including vehicle readiness or
performance times, may petition for an exemption from such requirements
under Sec. 139.111.
Comment: A commenter states that paragraph (i) that prescribes
requirements for ARFF personnel contains vague language. This commenter
recommends removing or clarifying this paragraph.
FAA Response: The FAA disagrees. The language of paragraph (i)
ensures that ARFF personnel are trained in certain subjects and allows
some flexibility to address the diversity of airports certificated
under part 139. Training ARFF personnel at airports required to comply
with Index E ARFF requirements may be more complex than training ARFF
personnel at an airport that complies with Index A requirements. In
addition, this flexibility allows the airport operator to incorporate
training required by the state or local municipality.
However, the FAA will forward the commenter's concerns on ARFF
training requirements to the ARAC. As discussed earlier, the ARAC has
accepted the task to review part 139 ARFF standards.
Section as Adopted: This section is adopted with changes. For
reasons discussed above, the requirement for annual recurrent training
for emergency medical personnel has been deleted from proposed Sec.
139.319(i)(4), and paragraph (m) has been modified to allow Class II,
III, and IV airport operators an additional year to comply with the
requirements of this section.
Several additional modifications were made to this section. A new
requirement for a vehicle communication method has been added to
paragraph (e) that requires personnel to have contact with the common
traffic advisory frequency when an air traffic control tower is not in
operation or when there is no tower. This change is consistent with
other radio communication requirements contained in part 139. Minor
changes also were made to paragraphs (e)(1) and (4) for clarity, and
the redundant phrase ``if it is located on the airport'' was deleted
from paragraph (e)(2).
Additionally, the reference to proposed Sec. 139.341, Airport
condition reporting, in paragraph (g)(3) has been revised to correspond
to revisions made to the section numbering throughout subpart D.
Modifications also were made to training requirements contained in
paragraph (i). Language has been added to paragraph (i)(2)(i) to
clarify that airport familiarization training shall cover airport
signs, marking, and lighting. Paragraph (i)(3) was revised to clarify
that training involving an actual fire must be completed prior to
initial performance of ARFF duties, and paragraph (i)(4) was changed to
allow an individual other than the required ARFF personnel to provide
basic emergency medical services.
Finally, a new sentence has been added to paragraph (j) noting that
the certificate holder may contact the FAA's Regional Airports Division
Manager about obtaining a copy of the ``North American Emergency
Response Guidebook.'' The FAA anticipates that this guidebook will be
available in both hardcopy and electronic form.
New Section 139.321 Handling and Storing of Hazardous Substances and
Materials (Proposed Sec. 139.323)
Proposal: In the proposal, Sec. 139.321, ARFF: Exemptions,
contained procedures for requesting an exemption from ARFF
requirements. As discussed earlier, proposed Sec. 139.321 has been
withdrawn and all requirements for petitions of exemption are now
contained in Sec. 139.111. Consequently, all following sections have
been redesignated, and comments received on these sections are
discussed under the new section numbers.
New Sec. 139.321 (proposed Sec. 139.323) contained existing
requirements for certain airport operators to establish and implement
procedures for the safe storage and handling of aviation fuel and, when
the airport operator is acting as a cargo agent, of hazardous materials
regulated under 49 CFR part 171. This section also required the
certificate holder to conduct quarterly inspections of certain fueling
agents. Generally, the proposal did not change these requirements, and
all classes of airports were required to comply.
Several minor changes were proposed. The term ``grounded'' was
deleted from paragraph (b)(1), eliminating the need for fueling agents
to connect aircraft to a static wire during fueling operations.
Paragraph (b)(6) was modified to delete an implementation date that has
already passed. In its place, a new requirement was proposed requiring
operators of proposed Class III airports to complete specified training
within 1 year.
Existing requirements in paragraph (e) also were modified to
include requirements for recurrency training for fueling agent
supervisors and employees, and paragraph (h) was deleted to clarify
that the requirements of Sec. 139.321 are applicable to air carrier
fuel storage areas located on the airport. Subsequently, existing
paragraph (i) became new paragraph (h). In addition, the reference to a
specific AC series number in existing paragraph (i) (new paragraph (h))
was revised.
Comment: A commenter states its support for the deletion of the
grounding requirement. This commenter, the National Fire Protection
Association (NFPA), notes this change was the result of changes made 10
years ago to NFPA 407, Standard for Aircraft Fuel Serving. The NFPA
recommends the FAA require compliance with NFPA consensus standards
through periodic rulemakings to avoid similar delays and provide state-
of-the-art safety for the traveling public.
FAA Response: The FAA partly agrees. The FAA will continue to
review the NFPA standards for possible use as national standards under
part 139. However, the FAA cannot commit to the adoption of a
particular NFPA (or other) standard in advance of that review. Not all
local governments use the NFPA standards, and the FAA will continue to
review each NFPA standard for suitability for Federal use.
Comment: A commenter disagrees with the FAA's characterization of
the ARAC working group's majority opinion regarding compliance with
this section.
FAA Response: The FAA disagrees that it has mischaracterized the
ARAC majority opinion. The majority of the ARAC Commuter Airport
Certification Working Group recommended that airports serving small air
carrier aircraft not be required to comply with this section (see ARAC
Commuter Airport Certification Working Group Final
[[Page 6406]]
Report, page IV-3). As noted in the proposal (65 FR 38655), the ARAC
majority recommended that the FAA only require smaller facilities to
meet local fire codes pertaining to storage and handling of hazardous
substances and materials.
Comment: A commenter recommends deleting requirements for an
airport operator to oversee fueling operations, unless the airport
operator is the fueling agent. Fueling operations at this commenter's
airport are provided by the FBO and the commenter states that the
airport staff are not trained in the operation and maintenance of
fueling facilities or in aircraft fueling operations. This commenter
also notes that the proposal contained no justification for airport
operators to inspect fueling operations, and the cost to comply
outweighs the benefit.
FAA Response: The FAA disagrees. Airport operators certificated
under part 139 already comply with the requirements of this section and
have not reported it to be burdensome or costly. As discussed in the
proposal (65 FR 38655), the requirements of this section are common
safety measures and were developed as a result of a cooperative effort
between the FAA, airport operators, and FBO's, and have been
successfully used for many years by airport operators and aircraft
fuelers nationwide.
It is not necessary for airport personnel who conduct inspections
of tenant fueling operations to be trained in fueling operations or
maintenance. Such personnel need only to be familiar with the airport
operator's standards for fuel fire safety. Such standards tend to be
common housekeeping practices that airport personnel should already be
familiar with as they are required by local fire codes and are often
required by liability insurance carriers. For example, such standards
could require fuel storage areas to be kept clean of litter,
vegetation, and other combustibles and fire extinguishers to be fully
charged.
Comment: A commenter states that additional training costs will be
incurred for FBO personnel if the FBO's existing training does not
comply with proposed training requirements.
FAA Response: The FAA agrees that a few airport operators may have
to reimburse their tenants for training costs. The responsibility for
such training costs will depend on the lease agreement between the
airport operator and the FBO. Such agreements typically contain
provisions that the FBO will ensure its employees are trained.
Most FBOs already use training programs that are approved by the
FAA. The FAA has evaluated available fuel safety training courses and
publishes a list of approved courses. The FAA periodically evaluates
these training courses to ensure they continue to meet certain teaching
and testing criteria and, on request, will evaluate new training
courses. Currently, 12 fuel safety training courses are acceptable to
the FAA, including several courses sponsored by airport operators.
Comment: A commenter states that the industry should assist the FAA
in developing guidance for recurrent training for fueling personnel to
ensure such training does not become an unnecessary burden on fueling
operations.
FAA Response: As noted in the proposal (65 FR 38655), fuel fire
safety standards were developed as a result of a cooperative effort
between the FAA, airport operators, and FBOs. If advisory material is
needed during the implementation of new training requirements of this
section, the FAA anticipates developing such materials in much the same
manner.
However, the FAA does not anticipate that compliance with recurrent
training requirements will be so complex as to require advisory
materials. As required under paragraph (b), recurrent training need
only cover the same subject areas as initial training. This would
include any changes to fuel fire safety standards and procedures that
have occurred since the individual's initial training.
Comment: A commenter requests the FAA change the requirement for
recurrent training for employees who handle fueling operations to every
24 consecutive calendar months rather the 12-month requirement
proposed. This commenter states that there is no justification for a
more restrictive requirement than that imposed on the fueling
supervisor and would be more consistent with other FAA requirements for
private pilots and mechanics.
FAA Response: The FAA agrees and has amended paragraph (e)(2) to
require recurrent training every 24 months rather than every 12 months.
Comment: A commenter recommends that the FAA amend the last
sentence of paragraph (e)(1) to include the phrase ``or enrolled in an
authorized aviation fuel training course that will be completed within
90 days.'' The commenter states that the proposed supervisor training
requirement would not allow for loss of a trained supervisor due to
normal attrition. The commenter reasons this modification would allow
fueling operations to continue uninterrupted until a new supervisor
could be trained.
FAA Response: The FAA agrees and has amended paragraph (e) as
suggested.
Comment: Two commenters state their support of changes made to this
section, particularly changes to enhance safety of air carrier fuel
storage areas. However, both commenters note that the FAA does not hold
air carriers accountable for the safety of their fuel storage areas and
recommend that the FAA require air carriers to inspect and maintain
these areas.
FAA Response: The FAA agrees that air carrier fuel storage areas
should be safe. Under this revised section, the FAA holds the airport
certificate holder responsible through its relationship with its tenant
air carriers, for protecting against fire and explosion in air carrier
fuel storage facilities.
Rather than have separate fuel storage requirements for air
carriers and airport operators, the FAA has determined that existing
part 139 fuel storage safety and inspection standards can be applied at
all such storage facilities located at part 139 airports. This approach
will ensure that all fuel storage facilities at part 139 airports are
inspected in the same manner and held to the same standards.
Comment: A commenter recommends that the FAA should consider
compliance with local fire codes and NFPA standards by fuel service
providers as an alternate method of compliance. This commenter also
recommends that the FAA should consider the role of the local fire
marshal in performing inspections.
FAA Response: The FAA agrees. The FAA already allows for these
methods of compliance. Under paragraph (b), the airport operator is
required to incorporate the local fire code in its standards for
protecting against fuel fires. If local fire codes do not address the
subject areas specified in paragraph (b), the airport operator will
have to develop additional procedures. The airport operator may develop
procedures unique to its facility or adopt industry standards, such as
NFPA standards.
In addition, the airport operator has the discretion to use either
its own personnel to conduct inspections or an independent organization
or person, such as the fire marshal. At some part 139 airports, the
local fire department is actively involved in aircraft fuel fire safety
and has arranged for ARFF personnel to conduct fuel fire safety
inspections and to provide fire safety training for fueling and airport
personnel.
Section as Adopted: This section has been adopted with changes. As
discussed earlier, proposed Sec. 139.321 has been deleted and the
proposed
[[Page 6407]]
Sec. 139.323 has been redesignated as Sec. 139.321. In addition,
paragraphs (e)(1) and (2) have been modified to allow additional time
for training of fueling personnel. Fueling agent supervisors now have
90 days to complete initial training, and fueling personnel need only
to complete recurrent training every 24 months rather than every 12
months.
To clarify that the requirements of this section pertain to
aircraft fueling operations, the words ``lubricants'' and ``oxygen''
have been deleted from paragraph (b). In addition, a requirement for
using an independent organization to perform inspections has been moved
to Sec. 139.303, Personnel, and a new sentence was added to paragraph
(f). This new sentence clarifies how long the certificate holder is
required to maintain fueling agents' training records.
New Section 139.323 Traffic and Wind Direction Indicators (Proposed
Sec. 139.325)
Proposal: This section prescribed conditions that require a
certificate holder to provide a wind cone, a traffic pattern indicator,
and the standards for these devices. While changes were proposed to
these standards, a certificate holder was still required to provide
traffic and wind indicators (such as windsocks) at specific locations
on the airport and for certain night and uncontrolled traffic
operations. Operators of all proposed airport classes were required to
comply with this proposed section.
References to Class B airspace were deleted and replaced by
language requiring all certificate holders to install supplemental wind
cones adjacent to runway ends where the primary wind cone is not
visible to a pilot on final approach or during takeoff. In addition,
standards for segmented circles and supplemental wind cones were
revised, as well as standards for traffic indicators at airports
without a control tower. Changes also were proposed to clarify that
airport operators must comply with the requirements of this section in
a manner satisfactory to the FAA and that ACs contain methods of
compliance that are acceptable to the Administrator. Finally, the
section number was changed to new Sec. 139.325 from proposed Sec.
139.323.
Comment: Several commenters support the changes to this section.
One of these commenters fully supports the proposal for supplemental
wind cones to be installed at runway ends at all certificated airports,
rather than just at airports located within Class B airspace.
FAA Response: The FAA agrees.
Comment: Two commenters note a discrepancy between this section's
criteria that determine if a certificate holder must light a wind
direction indicator and the requirements of proposed Sec. 139.311,
Marking, signs, and lighting, for a lighting system. These commenters
state that proposed Sec. 139.311 requires a lighting system for air
carriers during times when the airport is open at night while proposed
Sec. 139.325, Traffic and wind direction indicators, requires the
lighting of wind direction indicators during hours of darkness.
FAA Response: The FAA agrees. The term ``night'' will be used in
both sections, as defined in 14 CFR part 1. Section 139.323(a) has been
amended to specify that if the airport is open for air carrier
operations at night, rather than during hours of darkness, then wind
direction indicators must be lighted.
Section as Adopted: This section is adopted with changes, and the
section number was changed back to Sec. 139.323. For the reason
discussed above, the phrase ``during hours of darkness'' has been
replaced by the term ``night.'' In addition, the first sentence of this
paragraph has been reordered, and the phrase ``available for air
carrier use'' has been included to clarify that the requirements of
this paragraph are applicable only to runways used by air carriers. The
term ``maintain'' also has been added to the first sentence of this
section to ensure consistency with the wording of paragraph (c).
Further, paragraph (b) has been modified. The last sentence of this
paragraph was proposed in an effort to align part 139 requirements with
the existing FAA guidance provided to pilots on visual indicators at
airports without control towers. However, this change would have
inadvertently required some airport operators to move their primary
windsock if it was not located at the end of a runway. This was not
intended. To correct this error, the last sentence of paragraph (b) has
been deleted and the phrase ``around a wind cone'' has been added to
the first sentence. This addition will ensure the required landing
strip and traffic pattern indicator will be located around a wind cone,
wherever that wind cone may be located.
A change also has been made to paragraph (c). The term
``standards'' has been replaced by the term ``procedures.'' This change
corresponds to changes made throughout the regulation to adjust
language referring to ACs.
New Section 139.325 Airport Emergency Plan (Proposed Sec. 139.327)
Proposal: This section contained existing standards for the
development, implementation, and testing of an airport emergency plan.
Requirements for Class I airport operators remained relatively
unchanged. New requirements were proposed for Class II, III, and IV
airport operators that would be required for the first time to develop
and test an airport emergency plan.
Changes were made to update emergency response requirements to
include large fuel fires and hazardous materials incidents and to
ensure that all response measures accommodate the largest air carrier
aircraft serving an airport. In addition, an alternative for an
emergency alarm system was proposed, and clarifications were made to
requirements pertaining to water rescue situations and coordination
with the air traffic control tower.
Testing requirements for Class I airport operators remained the
same. New testing requirements were proposed for Class II, III, and IV
airport operators that did not require a triennial emergency exercise.
A new requirement was also proposed to allow Class II, III, and IV
airport operators 1 year from the effective date of the rule to submit
their emergency plans to the FAA for approval. Additionally, the
section number was changed to new Sec. 139.325 from proposed Sec.
139.327, and references to advisory circulars were revised.
On July 17, 2001, the FAA published a final rule revising 14 CFR
part 107, Airport Security (66 FR 37274). This final rule became
effective November 14, 2001. The part 107 final rule contained a minor
revision to current Sec. 139.325, Airport emergency plan.
The part 107 final rule added a new paragraph (h) to Sec. 139.325
and the existing paragraph (h) was redesignated as paragraph (i). This
revision ensures that emergency response procedures to hijack and
sabotage incidents contained in the airport emergency plan are
consistent with the approved airport security program required under
part 107. Comments on this revision were addressed in the part 107
final rule (66 FR 37308). [Note: Part 107 has been transferred to
Transportation Security Administration (TSA) regulations under 49 CFR
1500 et seq.]
Comment: Five commenters support changes made to this section,
particularly revisions requiring a response to large fuel fires and
hazardous materials incidents.
FAA Response: The FAA agrees.
Comment: An airport association comments that the flexibility
offered in
[[Page 6408]]
this section allows smaller airports the opportunity to develop and
maintain an airport emergency plan that will be appropriate to the type
of air carrier operations served.
FAA Response: The FAA agrees.
Comment: A commenter states it is reasonable to require Class II,
III, and IV airport operators to conduct only annual tabletop reviews
of their airport emergency plans. This commenter notes that ``many
small airports with limited funding appreciate recognition by the FAA
and Air Transport Association that the cost of conducting triennial a
full-scale exercise can be unduly burdensome.''
FAA Response: While the FAA agrees with the commenter's statement
regarding annual tabletop reviews, it does not agree that triennial
full-scale exercises are unduly burdensome for all small airport
operators.
Comment: Four commenters request that all certificate holders be
required to hold triennial full-scale emergency exercises. One of these
commenters, the American Association of Airport Executives, states that
``an emergency plan exercise every 36-months is a reasonable
expectation in the testing of an airport emergency plan.'' Another
commenter suggests that the FAA require Class II, III, and IV airports
to conduct full-scale emergency exercises every 5 years and tabletop
reviews every 2 years. This commenter states that annual reviews alone
cannot satisfy emergency coordination and response.
FAA Response: The FAA agrees that triennial full-scale emergency
exercises are beneficial, but disagrees that all certificate holders
should be required to hold such exercises. The cost of such exercises
for smaller airports, and the local community that participate in these
exercises, must be considered in evaluating the benefit.
Comment: A Class I airport operator recommends that certificate
holders should be required to include in their water rescue plans
provisions for rescue vehicles that have a combined capacity for
handling the maximum number of passengers on the largest aircraft
serving the airport.
FAA Response: The FAA agrees. Paragraph (a)(3) was proposed to
ensure that all emergency procedures, including water rescue, are
appropriate to the largest air carrier aircraft the airport operator
could be reasonably expected to serve. However, this paragraph will be
revised to use ARFF Index as the criteria for determining emergency
response capability rather than the largest aircraft that could be
served. This change will ensure that emergency planning and response
requirements are consistent throughout part 139.
Comment: One commenter states support for the ARAC Commuter Airport
Certification Working Group recommendation that Class II, III, and IV
airport operators include in their annual tabletop review discussions
of staging areas and perimeter security that will be used during
emergency situations and to conduct an airfield tour.
FAA Response: The FAA agrees that staging areas and perimeter
security should be discussed during an annual tabletop review. In most
instances, airport operators must designate a staging area and arrange
for perimeter security in order to comply with the requirements to
paragraph (c). Accordingly, these issues are reviewed during both the
annual review and, as appropriate, the triennial full-scale emergency
exercise.
Similarly, a field tour may be accomplished, although not
specifically required, during an annual review. Paragraph (g)(4)
requires the certificate holder to review its emergency plan with all
involved parties to ensure they know their responsibilities under the
plan. A field tour may be one means of compliance used by the
certificate holder to ensure that certain parties who would be required
in an emergency to drive on the airport or respond to a predesignated
staging area understand their responsibilities.
Comment: Two commenters, both Class III airport operators, state
that it may be difficult to comply with the requirements of this
section. One of these commenters explains that the local community has
an emergency preparedness plan, but the plan is not airport specific.
If the requirements of this section and AC 150/5200-31, Airport
Emergency Plan, require more than a modest update, this commenter
estimates it would cost $3,000 to $5,000 to rewrite the plan. The other
commenter states that without outside help or additional airport staff,
the airport emergency plan required under this section and AC 150/5200-
31 would be difficult to develop, maintain, and exercise.
FAA Response: The FAA partly agrees. Revising a local emergency
preparedness plan may take some time, particularly to coordinate mutual
aid agreements with local emergency and medical services. Likewise,
staff time will be required to annually review the plan. How much time
will, of course, vary from airport to airport and will depend on the
availability of local emergency services. Such considerations were
evaluated in the proposal's cost evaluation (see the Regulatory
Evaluation). This evaluation also assumed that all Class II, III, and
IV airport operators would have no existing emergency plan from which
to develop their own emergency plan.
Building upon an existing emergency preparedness plan will
considerably reduce the time it takes to create an airport emergency
plan. Further, such a revised plan does not need to conform to AC 150/
5200-31. This AC merely provides guidance on the development of an
airport emergency plan using Federal Emergency Management
Administration's guidelines for emergency preparedness. Neither is
mandatory. As long as such a revised community plan meets the
requirements of this section, the airport operator may develop its plan
in any manner that it chooses.
Additionally, the FAA is not requiring an airport operator to use a
consultant to develop its airport emergency plan. If an airport
operator decides to develop its own emergency plan, FAA resources are
available to simplify this process. The FAA airport certification and
safety inspectors are available via telephone or e-mail to provide
guidance on the development and testing of an airport emergency plan,
and they have samples of approved plans. For many years, these
inspectors have assisted Class I airport operators in the development
and testing of their emergency plans and have often served as
evaluators during triennial full-scale emergency exercises. In
addition, many states and local municipalities have emergency
coordinators that may be able to assist airport operators develop their
plans.
Section as Adopted: This section is adopted with changes. As
discussed above, Sec. 139.325(a)(3) has been modified. The phrase
``that the airport reasonably can be expected to serve'' has been
changed to ``in the Index required under Sec. 139.315.'' In addition,
the time allowed for compliance in paragraph (j) has been extended from
12 months to 24 months. The section number also has been changed to new
Sec. 139.325 from proposed Sec. 139.327, and several administrative
edits have been made throughout the section.
As discussed earlier, a new paragraph has been added to incorporate
an amendment made to part 139 in the final rule revising 14 CFR part
107, Airport Security (66 FR 37274). This new paragraph is designated
as paragraph (i) and references in the amendment to paragraph (b) that
refer to hijack and sabotage incidents have been updated to reflect the
changes made to paragraph (b). Subsequent proposed paragraphs (i) and
(j) have been redesignated as new paragraphs (j) and
[[Page 6409]]
(k). In addition, references to 14 CFR part 107 have been revised to
reflect changes made to FAA security regulations and the creation of
the Transportation Security Administration.
New Section 139.327 Self-inspection Program (Proposed Sec. 139.329)
Proposal: This section contained existing requirements for
certificate holders to conduct daily inspections of the movement area
to ensure the airport remains in compliance with part 139. Changes were
made to how the certificate holder notifies air carriers of field
conditions and document inspections. In addition, training requirements
for individuals conducting airport inspections were revised, and
language was added to permit airport inspections to be conducted by
individuals other than employees of the airport operator. The section
number also was redesignated from Sec. 139.327 to Sec. 139.329, and
language that was no longer applicable was deleted.
All proposed airport classes were required to comply with this
revised section. Class I, II, and IV airport operators were required to
update existing self-inspection programs, and operators of proposed
Class III airports were required to develop and implement a self-
inspection program.
Comment: Two commenters support training requirements for personnel
conducting self-inspections.
FAA Response: The FAA agrees.
Comment: Two commenters support changes that will allow an airport
operator to designate a third party to conduct inspections. One of
these commenters notes that neither this section nor proposed Sec.
139.303, Personnel, provides guidance on using a third party.
FAA Response: The FAA agrees. Since the certificate holder can use
a third party to comply with most part 139 requirements, a new
paragraph has been added to Sec. 139.303 that details the requirements
a certificate holder must meet in order to use a third party (see
section-by-section analysis of Sec. 139.303). This new paragraph
contains a requirement, found in existing Sec. 139.321, Handling and
storage of hazardous substances and materials, paragraph (d), that
specifies that the certificate holder can use an independent
organization to conduct inspections of tenant fueling facilities. This
paragraph has been moved to Sec. 139.303 and has been modified so that
it now applies to any part 139 requirement. Consequently, the term
``designee'' has been deleted from Sec. 139.327(a).
This new paragraph in Sec. 139.303 still requires that the FAA
approve any such arrangement. In addition, the certificate holder is
required to ensure that the third party's duties and responsibilities
are included in the ACM and that records are maintained to document the
third party's compliance with part 139 and the ACM, including training
activities.
Comment: A commenter states that paragraph (b)(3) detailing
training subject areas is too vague and requires clarification.
Specifically, the commenter is unclear if this paragraph requires
additional training for airport operations staff and recommends
additional clarification of recurrent training standards.
FAA Response: The FAA agrees that some training required under this
section is redundant to training required under Sec. 139.303. This
overlap is intentional so that all requirements for conducting self-
inspections are contained in one section. Training completed to comply
with Sec. 139.303 can be used to meet this section's training
requirements.
In addition, the FAA agrees that changes are needed to clarify the
frequency of training. Modifications have been made to paragraph (b) to
clarify that personnel must receive both initial and recurrent training
in the specified subject areas and that recurrent training is required
every 12 months.
Comment: A commenter notes that the recurrent training required for
personnel conducting self-inspections is redundant for duties that its
operations staff completes on a daily basis.
FAA Response: The FAA disagrees. As discussed in section-by-section
analysis of Sec. 139.303, the FAA believes personnel that perform their
duties on a daily basis can benefit from recurrent training. Recurrent
training helps ensure that all employees continue to perform their
duties correctly and safely.
Comment: A commenter opposes new requirements for formalized
training and recordkeeping, stating that these requirements are
unnecessary and burdensome. This commenter states that the regulation
already requires the certificate holder to ensure it remains compliant
with the part 139 and the ACM. The commenter believes this requirement
alone will ensure self-inspections are done correctly. In addition,
this commenter believes that annual FAA inspections ensure compliance
without the need for burdensome recordkeeping and recurrent training
programs.
FAA Response: The FAA disagrees with the commenter that new self-
inspection training and recordkeeping requirements will be burdensome
and unnecessary. The FAA believes most certificate holders already
comply with this section and need only document existing training
procedures.
Also, similar to Sec. 139.303, training required under this section
does not have to be ``formalized.'' Paragraph (b)(3) does not specify
how training must be conducted. This is intended to allow the
certificate holder some flexibility in complying with training
requirements in a manner best suited for local circumstances. As long
as training covers the subject areas specified in paragraph (b), it
could consist of on-the-job training, formal classroom lectures, an
industry training conference, or some combination thereof.
Section as Adopted: This section is adopted with changes. The
section number has been changed back to Sec. 139.327, and for the
reasons discussed above, the term ``designee'' has been deleted from
paragraph (a), and paragraph (b) has been modified to clarify that
personnel must receive both initial training and annual recurrent
training.
Several other changes were made throughout the section. Paragraph
(b)(2) has been edited for clarity. Paragraph (b)(3)(iv) has been
revised to reflect changes made to the title of Sec. 139.329, and
paragraphs (b)(3)(i) and (vi) have been combined. In addition, language
deleted in the proposal was replaced in paragraph (b)(3). This language
specifies that only qualified personnel can perform inspections and was
unintentionally deleted.
Changes were made to paragraph (c). New language was added that
requires the certificate holder to maintain records for 24 months of
training required under paragraph (b)(3). While this requirement was
not discussed in the proposal, other similar recordkeeping requirements
were, and this addition to paragraph (c) mirrors these requirements and
is a logical outgrowth of what was proposed. Further, the FAA has
determined that records of self-inspections should be retained in the
same manner as airport condition reports, as required under Sec.
139.339. Therefore, the time airport operators must maintain self-
inspection records has increased from 6 months to 12 months. Although
not proposed, this change will ensure the recordkeeping requirements in
the two sections are consistent.
In addition, the text ``make available for inspection by the
Administrator on request'' has been deleted from paragraph (c). This
requirement is redundant to the new recordkeeping
[[Page 6410]]
requirements of Sec. 139.301 that specify the certificate holder shall
furnish, upon request by the FAA, all records required to be maintained
under this part.
New Section 139.329 Pedestrians and Ground Vehicles (Proposed Sec.
139.331)
Proposal: This section contained requirements for the certificate
holder to limit access to movement areas to those ground vehicles
necessary for airport operations. This section also required the
certificate holder to ensure that employees, tenants, or contractors
who operate ground vehicles in the movement area are familiar with
established ground vehicle operating procedures.
The requirements of this section remained relatively the same. Only
minor modifications were proposed to clarify that the requirements of
this section are implemented in a manner satisfactory to the FAA. All
certificated airports serving scheduled air carrier operations
(proposed Class I, II, and III airports) were required to comply with
this section. The section number was changed from Sec. 139.329 to
proposed Sec. 139.331.
Comment: A commenter supports the implementation of this section at
smaller airports with the FAA's acknowledgement that existing Sec.
139.329, Ground vehicles, paragraph (c) is only applicable at airports
where an air traffic control tower is operational.
FAA Response: The FAA agrees that existing Sec. 139.329(c) is
applicable only at airports where an air traffic control tower is
operational. This criteria is stated in the first sentence of paragraph
(c) and did not change in the proposal.
However, the commenter's statement seems to imply that there is
confusion regarding the requirements for two-way radio communications
at airports without control towers or during times when the control
tower in not operational. To clarify that in either instance
prearranged signs or signals can be used in lieu of two-way radio
communications, the first sentence of paragraph (d) has been modified
to include the phrase ``or there is no air traffic control.'' The
phrase ``two-way radio communications'' also has been added to this
paragraph to clarify that operators of such airports have the choice of
using either two-way radios or prearranged signs or signals.
Comment: A commenter recommends revising paragraph (e) to require
ground vehicle training that includes runway incursion prevention
awareness. This commenter states that safe airside vehicle operations
play a significant role in decreasing the hazards of runway incursions.
FAA Response: The FAA agrees. Data collected by the FAA on runway
incursions show that ground vehicles and pedestrians in movement and
safety areas continue to be a cause of both runway incursions and
surface incidents. To heighten awareness of this important safety
matter, the FAA supports the commenter's recommendation and has
modified paragraphs (e) and (f) to specify training, rather than just
familiarization, on procedures for the safe and orderly access to and
operation in the movement area and to require records of such training.
Additionally, this section has been expanded to included safety areas
and pedestrian activity to ensure a comprehensive approach to
preventing runway incursions and surface incidents.
Section as Adopted: This section is adopted with changes. The
section number has been changed back to Sec. 139.329, and for the
reasons discussed above, paragraph (e) has been modified to specify
training on procedures for the safe and orderly access to and operation
in movement areas and safety areas. Correspondingly, paragraph (f) has
been changed to require records of such training and that these records
be maintained for 24 months.
As discussed previously, the words ``pedestrian'' and ``safety
area'' have been added throughout the section and to the section title.
This change now requires the certificate holder to establish and
implement procedures for access to, and operation on, movement areas
and safety areas by both pedestrians and ground vehicles.
To clarify requirements for vehicle and pedestrian control at
airports without control towers, paragraph (d) also has been modified
to include the phrase ``or there is no air traffic control'' and ``two-
way radio communications.''
New Section 139.331 Obstructions (Proposed Sec. 139.333)
Proposal: This section contained requirements for the lighting,
marking, or removal of obstructions. Except for a change to the section
number, the requirements of this section remained substantially the
same. Certificate holders were still required to ensure that each
object within its area of authority that penetrates imaginary surfaces,
as provided in part 77, Objects Affecting Navigable Airspace, is
removed, marked, or lighted.
Changes were proposed to clarify that the requirements of this
section must be implemented in a manner satisfactory to the FAA and
that ACs contain some methods of compliance that are acceptable to the
Administrator. All certificated airports serving scheduled air carrier
operations (proposed Class I, II, and III airports) were required to
comply with this revised section. Also, a change to the section number,
from Sec. 139.331 to Sec. 139.333, was proposed.
Comment: No comments were received on this section.
Section as Adopted: The section number has been changed to new Sec.
139.331 from proposed Sec. 139.333. In addition, references to the
terms ``imaginary surfaces'' and ``part 77'' have been replaced by the
phrase ``determined by the FAA to be an obstruction.'' As noted in the
proposal (65 FR 38650), references to 14 CFR part 77 should have been
deleted throughout part 139 as part 77 is being revised and may be
reorganized. Accordingly, references to part 77 in this section have
been replaced with a general statement that the FAA will determine if
an object is an obstruction. Also, the first and second sentence of
this section have been combined for clarity.
New Section 139.333 Protection of NAVAIDS (Proposed Sec. 139.335)
Proposal: This section contained standards for the protection of
navigational aids (NAVAIDS). Except for a change to the section number,
the requirements of this section remained substantially the same and
required the certificate holder to protect against the derogation of
electronic or visual navigational equipment and air traffic control
facilities located on the airport. This included protection against
vandalism, theft, and construction that may cause interference.
Changes were proposed to clarify that the requirements of this
section must be implemented in a manner satisfactory to the FAA and
that ACs contain some methods of compliance that are acceptable to the
Administrator. All certificated airports serving scheduled air carrier
operations (proposed Class I, II, and III airports) were required to
comply with this revised section.
In addition, a change to the section number, from Sec. 139.333 to
Sec. 139.335, was proposed.
Comment: No comments were received on this section.
Section as Adopted: The section number has been changed to new Sec.
139.333 from Sec. 139.335. Otherwise, the section is adopted as
proposed.
New Section 139.335 Public Protection (Proposed Sec. 139.337)
Proposal: This section contained existing requirements for a
certificate holder to prevent the inadvertent entry
[[Page 6411]]
of persons or vehicles to the movement area and to provide reasonable
protection of persons and property from aircraft blast. All
certificated airports serving scheduled air carrier operations (Class
I, II, and III airports) were required to comply with this section.
Comment: A commenter requests additional time for Class III
airports to comply with this section. The commenter recommends that
these airports be allowed 3 years after the effective date of the rule
to comply because the cost of implementing this section will be high in
small rural communities. No operational or financial data is provided
to substantiate this claim.
FAA Response: The FAA disagrees. The requirements of the section
are intended to prevent the inadvertent access by the public, which can
be done quickly and for a relatively small cost. The FAA is unaware of
any current certificate holders experiencing problems meeting this
requirement, and the commenter did not provide any operational or cost
data to suggest otherwise.
Elaborate fencing, automated access control points, closed-circuit
cameras, guards, etc. are not required to comply with this section.
Existing measures, used by airport operators for theft and liability
purposes, to keep the public out of movement areas will usually
suffice. For example, if a public road dead-ends at the airport, the
certificate holder could use a sign and wood barricade to alert the
public not to enter.
In addition, some airport operators that have accepted Federal
funds may have obligations under their grant assurances to control the
use of the airport in a manner that will eliminate hazards to aircraft
and to people on the ground. Grant assurances require ``an owner of an
airport developed with Federal assistance to provide adequate controls
such as fencing and other facilities to keep motorist, cyclists,
pedestrians, and animals from inadvertently wandering onto the landing
area or areas designated for aircraft for aircraft maneuvering.''
Comment: Several commenters disagree with the FAA's statement that
there will be minimal or no incremental compliance cost for this
section. One of these commenters states that it would cost $150,000 to
comply with this section. This would include the cost to develop
personnel identification media, provide personnel with security
training, and install passenger-screening equipment in the terminal
building.
Another commenter states that security is expensive and that
fences, access gates, background checks, and law enforcement personnel
all combine to increase cost. This commenter provides two pages of
justification why the FAA should not require certificate holders,
particularly at Class III airports, to comply with the requirements of
14 CFR part 107, Airport Security.
FAA Response: This section does not require the certificate holder
to comply with part 107 nor does it require the certificate holder to
use any physical or personnel security measures to protect against
criminal and terrorist acts.
As noted above, this section only requires the certificate holder
to have appropriated safeguards against inadvertent entry to movement
areas by unauthorized persons or vehicles. These safeguards may consist
of a combination of natural barriers, fencing, and warning signs, which
suffice to deter personnel or vehicles from accidentally entering the
movement area.
The reference to part 107 (new 49 CFR part 1542, Airport Security)
in paragraph (b) may have caused confusion. This reference merely
alerts the certificate holder that any fencing used to comply with part
107 will automatically meet the requirements of this section. This is
because any fencing used to comply with part 107 far exceeds the public
protection requirements of part 139.
Comment: One commenter requests the FAA examine the impact of this
section on smaller airports. This commenter, the American Association
of Airport Executives, states that the fencing requirement alone could
be very expensive and one of its airport members claims it would have
to install 18 linear miles of fence to comply with this section.
FAA Response: The FAA disagrees. It is difficult to respond to this
comment, as the FAA is not familiar with the referenced airport
operator's situation. However, based on experience with current
certificate holders, the FAA does not agree that an airport operator
would need to purchase new fencing to encompass the entire airport
property in order to comply with this section. Most likely the airport
operator's existing fencing or safeguards to keep the public out of
movement areas will be acceptable.
Again, the reference to fencing meeting access control requirements
of part 107 in paragraph (b) may have caused confusion. As noted above,
paragraph (b) does not require fencing, but merely alerts the
certificate holder that any fencing used to comply with part 107 will
automatically meet the requirements of this section.
Section as Adopted: The section is adopted with minor editorial
changes. The section number has been changed back to Sec. 139.335, and
paragraph (b) has been edited for clarity. In addition, references to
14 CFR part 107 have been revised to reflect changes made to FAA
security regulations and the creation of the Transportation Security
Administration.
New Section 139.337 Wildlife Hazard Management (Proposed Sec. 139.339)
Proposal: This section contained existing requirements for the
certificate holder to respond to wildlife hazards, including criteria
for when a certificate holder is required to develop and implement a
wildlife hazard management plan. The proposal made several changes to
these requirements and clarified what is expected of the certificate
holder when developing a wildlife hazard management plan. All operators
of certificated airports serving scheduled air carrier operations were
required to comply with this section.
Existing Sec. 139.337 was redesignated as proposed Sec. 139.339.
Existing paragraph (f) was moved to the beginning of this section and
became new paragraph (a). This paragraph required that an airport
operator take immediate action to alleviate wildlife hazards. All other
paragraph designations were changed accordingly.
Several changes were made to wildlife hazard assessment
requirements. A new requirement was proposed specifying that a wildlife
hazard assessment must be conducted by a wildlife damage management
biologist who meets certain education and experience qualifications.
Another new requirement was proposed mandating that any recommended
actions for reducing the wildlife hazard made by the wildlife damage
management biologist be included in the assessment. In addition, the
existing requirement that an assessment include an analysis of the
events prompting the assessment was modified to include an analysis of
any circumstances that may have prompted the assessment as well.
Several modifications were made to the requirement to submit a
wildlife hazard assessment for FAA approval. These changes included a
new requirement for the FAA to take into consideration any actions
recommended by the wildlife hazard assessment in determining the need
for a certificate holder to have a wildlife hazard management plan. In
addition, changes were made to requirements for the wildlife hazard
management plan. A new requirement was added that directs the
certificate holder to annually review the plan. Also, existing language
from Subpart C, Airport Certification Manual,
[[Page 6412]]
was added to require that an approved wildlife hazard management plan
be included in the airport operator's ACM.
Finally, specific references to AC series numbers were deleted, and
several terms used throughout the section were revised, including the
term ``ecological study.'' A new paragraph was added to allow proposed
Class II and III airports to implement less than full wildlife
mitigation procedures if air carrier operations at these airports are
so few or infrequent that any large expenditure would be unduly
burdensome or costly.
Comment: Three commenters support the changes to this section. One
of these commenters believes that such changes will reduce wildlife
aircraft strikes at FAA-regulated airports.
FAA Response: The FAA agrees.
Comment: A commenter notes that the proposal did not mention the
ARAC Commuter Airport Certification Working Group's majority view on
wildlife hazard management. This commenter requests that the FAA review
and consider these recommendations before issuing a final rule.
FAA Response: The FAA agrees that the proposal did not discuss the
ARAC Commuter Airport Certification Working Group's majority view on
wildlife hazard management. This omission was not intentional, and the
FAA did consider both the working group's majority and minority views
on this issue.
The working group's majority opinion stated that existing part 139
wildlife hazard management requirements would be economically
burdensome for airports serving smaller air carrier operations. It
recommended that such airport operators be required only to take
immediate measures to alleviate wildlife hazards whenever detected and
not be required to conduct an assessment and develop a wildlife hazard
management plan.
The working group's majority stated the opinion that many airports
serving small air carrier operations do not have complete perimeter
fences or other measures to deter wildlife access to the movement area.
Its opinion was that such airport operators do not have the financial
resources to hire a consultant to study a potential wildlife hazard,
and it would be too costly to require these airport operators to
establish priorities for habitat modification. However, the ARAC
majority did state that it is essential for the airport operator to
have a plan to remove a wildlife hazard when detected.
In contrast, the working group's minority recommended that airports
serving small air carrier aircraft comply with all requirements of this
section. This minority position, submitted by the Air Line Pilots
Association (ALPA), stated that airport personnel ``often do not have
the expertise to develop effective measures for mitigating wildlife
hazards.'' ALPA noted that wildlife hazards to aviation are a difficult
and growing issue that should be taken seriously by all small airport
operators and by requiring small airport operators to comply with this
section it would ``help ensure that professional wildlife management
techniques are utilized to control wildlife problems at affected
airports.''
The FAA partly agrees with the working group's minority position
and determined that all airports serving scheduled operations (Class I,
II, and III airports) will comply with revised wildlife hazard
management requirements. At airports that only serve unscheduled air
carrier operations (Class IV airports), the FAA believes that
compliance with wildlife mitigation requirements would be unduly
burdensome since these airports serve covered air carrier operations on
an infrequent basis. Changes to paragraph (d)(3) also allow the FAA to
consider frequency and size of air carrier aircraft served in
determining the need for Class I, II, and III airport operators to
comply with certain wildlife hazard management requirements.
Comment: A commenter supports the proposed change to replace the
term ``ecological study'' in paragraph (b) with the term ``wildlife
hazard assessment.''
FAA Response: The FAA agrees.
Comment: Two commenters recommend modifying the events described in
paragraph (b) that trigger the requirement for a wildlife hazard
assessment. These commenters suggest that the term ``damaging bird
strike'' be added to paragraph (b)(1). One of these commenters notes
that the current language of paragraph (b)(1) does not require a
wildlife hazard assessment if an aircraft experiences a single bird
strike. This commenter states that a single bird strike should trigger
an assessment because a single bird strike can be just as hazardous as
some of the minor aircraft strikes involving mammals.
FAA Response: The FAA agrees that language in paragraph (b) is
unclear regarding aircraft strikes by a single bird or engine ingestion
of wildlife other than birds. To clarify, proposed paragraph (b)(1) has
been broken into two subparagraphs in the final rule that specify that
a wildlife hazard assessment is required if an air carrier aircraft
experiences either multiple bird strikes or an engine ingestion of
wildlife.
To clarify what is required of the certificate holder if an air
carrier aircraft experiences a strike by a single bird, paragraph
(b)(2) also has been modified. In the proposal, this paragraph required
the certificate holder to conduct a wildlife hazard assessment if an
air carrier aircraft experiences a ``damaging collision'' with wildlife
other than birds. This has been modified to require an assessment if an
air carrier aircraft experiences substantial damage from striking any
wildlife, and the term ``substantial damage'' has been defined.
Consequently, the need for an assessment is now based on the type of
damage sustained from a wildlife strike, rather than the type or
numbers of wildlife strikes.
This change also mirrors how wildlife strikes are reported on FAA
Form 5200-7, Bird/Other Wildlife Strike Report. This form is used by
pilots and air traffic controllers to report wildlife strikes to the
FAA. The information from Form 5200-7 is compiled into a national
database to assist the FAA and other safety and wildlife organizations
in learning more about the wildlife/aircraft strike problem. The
database helps provide information about wildlife strike risk factors
and possible risk reduction measures and to evaluate the effectiveness
of these measures. The FAA and the U.S. Department of Agriculture
(USDA) annually analyze this data and publish a report of their
findings. This report, the national wildlife strike database, and FAA
Form 5200-7 are available at the FAA's Internet site at http://wildlife-mitigation.tc.faa.gov or by calling (202) 267-3389.
Comment: A commenter recommends that proposed paragraph (f) be
revised to require the certificate holder to include in its wildlife
hazard management plan procedures for maintaining records of all
reported wildlife strikes and all wildlife carcasses found within 200
feet of a runway. The commenter also suggests that the certificate
holder use this information to periodically evaluate its wildlife
hazard management plan and revise it if needed. The commenter notes
that the maintenance of a local wildlife strike database is an
essential part of the wildlife hazard management plan of any airport
and that NTSB recommends that bird strike reporting be mandatory.
FAA Response: The FAA disagrees with the recommendation to require
airport operators to document all wildlife strikes. Airport operators
already are required to document wildlife hazards and strikes under
self-
[[Page 6413]]
inspection requirements and to take appropriate action. Further, an
airport operator may not know of all wildlife strike reports as such
reports are typically made by pilots and air traffic controllers and
sent directly to the FAA.
However, the FAA agrees in part that airport operators should use
wildlife strike reports to periodically evaluate and revise their
wildlife hazard management plan. Airport operators can access wildlife
strike reports submitted to the FAA by calling the FAA at (202) 267-
3389. Similarly, the FAA inspectors will use both the FAA wildlife
strike database and an airport's self-inspection log to determine the
need for a wildlife hazard assessment or to assess the effectiveness of
an existing wildlife hazard management plan.
Comment: Several commenters express concerns over the potential
cost for small airport operators to conduct a wildlife hazard
assessment. These commenters state that the cost to conduct an
assessment at a small airport could mean a significant long-term cost
and an increase in personnel. One of these commenters remarks that the
expense of a wildlife hazard assessment is not warranted unless there
has been a strike or aircraft damage, as outlined in existing Sec.
139.337. Another commenter, a Class III airport operator, states that
it has received an estimate from an environmental contractor to conduct
an assessment. Assuming no significant wildlife hazard, this contractor
estimates the cost of an assessment at $8,000.
FAA Response: The FAA agrees that a wildlife hazard assessment is
only required under the conditions specified in paragraph (b).
In addition, the FAA agrees that an assessment could mean a long-
term cost for an airport operator. The cost for an assessment will vary
depending on the wildlife concerns at each airport. Typically, a survey
of the airport and its surroundings should reveal that the cause of the
wildlife hazard may be relatively simple to fix, such as exposed
rafters in an aircraft hangar or a poorly maintained perimeter fence.
There may be airports where an assessment could take longer,
particularly if a wildlife census is needed or migratory patterns must
be monitored.
Based on the wildlife aircraft strike data received from FAA Form
5200-7, the FAA has determined that 40 percent of those airports
required to comply with this section for the first time (Class II and
Class III airports) will be required to conduct a wildlife hazard
assessment. Biologists at the FAA and the USDA Wildlife Services
estimate that half of these airports could readily complete a wildlife
assessment within a few days for a nominal cost.
The services of the FAA, the USDA, and local sources are readily
available, often free of charge, to airport operators initially seeking
to mitigate wildlife issues. Wildlife biologists at both the FAA and
the USDA offer free telephone consultations, guidance material and
literature, on-site preliminary evaluations and suggested remedies.
These experts work jointly to track airport wildlife problems and
resolutions and serve as a clearing-house for such information.
Further, they can direct airport operators to local help, including
game wardens, animal control personnel, extension agencies, and
college/university resources, as well as provide information on airport
operators that have pooled their resources and share a wildlife
biologist.
Most of the remaining airport operators required to conduct an
assessment may need a few additional days to complete their wildlife
assessments. These airports have more complex wildlife issues, and the
FAA and the USDA estimate that in all but a few cases, assessments at
these airports could be completed in 5 to 7 days. In such instances,
the FAA and the USDA would probably require the airport operator to
reimburse the cost of a biologist's wages, plus travel and expenses. If
a consulting firm is used, the FAA estimates that the average cost for
a consultant to conduct an assessment at such airports is approximately
$3,500 (based on the average cost of $105 per staff hour).
In a few instances, an assessment would take longer than a week due
to the magnitude or complexity of the wildlife problem. For example, a
study of migratory birds may require a yearlong study. The average cost
for a 1-year study involving monthly surveys is $50,000 and a 1-year
study requiring quarterly surveys costs approximately $25,000. These
fees usually include the cost to conduct a wildlife census, evaluate
habitat, develop a wildlife hazard management plan, and train staff in
wildlife control techniques.
While a wildlife hazard management plan may be eligible for AIP
funding if it results in capital improvements to the airport, some
airport operators may not be able to comply with this section if a
complex assessment is required. In such cases, airport operators may
petition for an exemption under Sec. 139.111.
Comment: A commenter requests that Class III airports be allowed
additional time to comply with this section. Specifically, the
commenter requests that these airports be allowed 12 months to prepare
a wildlife hazard assessment and an additional 6 months to prepare a
wildlife hazard management plan.
FAA Response: The FAA disagrees. No compliance dates were proposed
in this section because not all certificated airports have experienced
the triggering events that require an assessment, and for those
required to conduct an assessment, there are many variables involved.
At airports where a triggering event has occurred, the time to
conduct an assessment will vary for each airport operator. The length
of time needed to complete a wildlife hazard assessment will depend on
the complexity of the wildlife hazard and the circumstances that
triggered the assessment. An assessment also may reveal that a wildlife
hazard management plan is not needed. Similarly, the time to complete a
wildlife hazard management plan will be different for each airport
operator.
If the FAA determines there is a need for a wildlife hazard
assessment or management plan, it will consult with the airport
operator to determine a reasonable completion date.
Comment: A commenter notes that there are several typographical
errors in paragraphs (c), (d), and (f).
FAA Response: The FAA agrees. These errors have been corrected.
Comment: A commenter questions whether the phrase ``near the
airport'' in paragraph (b) should be more narrowly defined.
FAA Response: The term ``near the airport'' is not defined in
paragraph (b). The conditions attracting wildlife to an airport are so
varied that it is difficult to assign a specified distance from the
airport within which the presence of a wildlife hazard would require an
airport operator to conduct an assessment. The only defined distances
are those specified by statute for the siting of landfills near certain
public airports. In addition, other recommended distances for wildlife
attractants are contained in AC 150/5200-33, Hazardous Wildlife
Attractants On or Near Airports.
As is currently the case, the FAA will work with each airport
operator to determine if a wildlife hazard is close enough to aircraft
traffic patterns and the airport to trigger a wildlife hazard
assessment.
Comment: Four commenters express concerns over the proposed
requirement to use a qualified wildlife damage management biologist.
Some of these commenters state that the required use of such a
biologist would be cost prohibitive because it would require many
airport operators to hire additional personnel or overburden USDA with
requests for a qualified biologist. Another commenter suggests
[[Page 6414]]
that this section be modified to allow an airport operator to conduct
an assessment according to a methodology prepared by a wildlife damage
management biologist. The commenter argues that this approach would
permit airport operators in the same geographic area to reduce costs by
jointly contracting for the services of a qualified biologist.
FAA Response: The FAA agrees in part. The language of paragraph (c)
has been modified so that the qualifications for a wildlife damage
management biologist are not as restrictive. While the wildlife hazard
assessment still must be conducted by a wildlife damage management
biologist, the requirement for this individual to have a Bachelor of
Science degree has been deleted. The required biologist need only have
professional training or experience in wildlife hazards at airports.
This change will give airport operators greater flexibility in
selecting a qualified biologist.
The FAA disagrees with the recommendation that an airport operator
be allowed to conduct its assessment under the guidance of a qualified
biologist. As discussed in the proposal (65 FR 38659), the FAA has
determined that the potential for loss of life and equipment resulting
from wildlife aircraft strikes requires persons who conduct wildlife
hazard assessments to have the education, training, and experience in
conducting such assessments. However, this section does not prohibit
airport operators from pooling resources and jointly contracting for
the services of a qualified biologist. In addition, airport personnel
can be used to assist the qualified biologist in conducting the
assessment.
Regarding commenters' concerns that USDA will not be able to comply
with additional requests for a qualified biologist to conduct
assessments, the FAA disagrees that the USDA will be overburdened to a
point that it will not be able to provide such services. The FAA works
closely with USDA to ensure biologists are available for part 139
wildlife hazard assessments and has coordinated this rulemaking with
them. The FAA does not anticipate that its biologist, or USDA's
biologists, will be overburdened due to the additional airport
operators needing to conduct an assessment because of changes to part
139.
Comment: A commenter disagrees with proposed new paragraph (c)(5)
that would require an airport operator to include in its wildlife
hazard assessment recommendations made by a qualified biologist for
reducing wildlife hazard. This commenter believes a biologist would be
unfamiliar with airport operations and may make recommendations that
would ``not be feasible and therefore not necessary to include in the
assessment.''
FAA Response: The FAA disagrees. The specialized training and
experience that is required of a qualified biologist under part 139
should result in wildlife hazard management recommendations that
consider airport operations. Further, the FAA's review and approval of
the assessment will determine the feasibility of such recommendations
and ensure that they are appropriate for the type of air carrier
operations served.
Comment: One commenter recommends that paragraph (f)(7) be changed
to allow airport personnel to be trained by an individual other than
the biologist required under paragraph (c). This commenter suggests
that initial training of airport personnel be conducted by the required
biologist using a ``train-the-trainer'' approach. The commenter
believes this will allow airport personnel to conduct any subsequent
training.
FAA Response: The FAA agrees. Paragraph (f)(7) does not prohibit
the ``train-the-trainer'' approach so long as the required biologist
conducts the initial training.
Comment: A commenter recommends that paragraph (c) be revised to
include provisions to assist airport operators in contacting and
working with USDA. This commenter noted that USDA's expertise and
resources in assessing, monitoring, and mitigating wildlife hazards at
airports is extensive and ``constitutes the foundation upon which the
FAA bases its expertise in the subject area.'' This commenter also
suggests that the FAA ``recognize the expertise and consider the
resources of state wildlife agencies in meeting'' the requirements of
this section. The commenter believes this change would provide airport
operators a cost-cutting alternative to hiring the services of a
qualified wildlife damage management biologist.
FAA Response: The FAA disagrees that paragraph (c) should include
information on using Federal or State wildlife services. The
availability of State and local agencies varies from State to State,
and information on these agencies would require frequent updates to
keep it current. Therefore, it would be impractical to place this
information in the regulation. As noted above, airport operators can
contact the FAA for this information.
Comment: A commenter notes that there is no definition included in
this section that accurately describes what ``qualified'' means when
used in connection with the term ``wildlife damage management
biologist.''
FAA Response: A qualified wildlife damage management biologist is a
biologist that has qualifications specified under Sec. 139.337(c), as
adopted.
Comment: A commenter questions the deletion of the term
``observed'' from paragraph (b)(3). The commenter states that the
change from ``is observed to have access to any airport flight pattern
or aircraft movement area'' to ``has access to any airport flight
pattern or aircraft movement area'' would require all airport operators
to conduct a wildlife hazard assessment, rather than just those airport
operators that observe wildlife of a size or in numbers capable of
causing an aircraft strike or engine ingestion.
FAA Response: The FAA agrees the term ``observed'' should be
replaced in paragraph (b)(3). The original text of paragraph (b)(3) has
been restored.
Comment: A commenter states that paragraph (b)(3) ``appears to be a
catchall justification subject to the interpretation of an inspector
not qualified in wildlife assessment.'' This commenter recommends a
``low-cost, initial overview validation'' conducted by a qualified
individual to determine if a hazard exists and the need for an
assessment.
FAA Response: As discussed above, the restoration of the original
text of paragraph (b)(3) narrows its scope. However, the FAA does not
agree with the recommended alternative to a wildlife hazard assessment.
As previously noted, many wildlife hazard assessments are the low-cost
initial overview recommended by the commenter. Further, FAA airport
certification safety inspectors are qualified to determine if an
assessment is needed. The FAA trains these inspectors to determine if a
potential wildlife hazard exists. The FAA's wildlife biologist also
consults regularly with these inspectors, as well as with airport
operators.
Comment: A commenter recommends that paragraph (h) include the
following sentence: ``Certificate holders are encouraged to discuss
potential use of new or innovative wildlife hazard management methods
with the Administrator, and to share results of experimental methods,
in the interest of increasing public safety and wildlife hazard
management efficiency.''
FAA Response: The FAA disagrees. Such discussion of new or
innovative wildlife hazard management methods already occurs when the
FAA reviews wildlife hazard assessments or wildlife
[[Page 6415]]
hazard management plans. Additionally, the FAA's staff wildlife
biologist participates with other professional wildlife managers in
developing and revising wildlife hazard management standards and
finding resolutions to aviation wildlife problems. This ongoing effort
is discussed on the FAA Internet site at http://wildlife-mitigation.tc.faa.gov.
Comment: Two commenters express concerns over proposed paragraph
(f)(6), which would require an airport operator to annually review its
wildlife hazard management plan. One commenter states that the annual
review is excessive, especially since it could take more than a year to
develop. The other commenter requests clarification on whether an
airport operator is allowed to conduct its own annual review rather
than the qualified biologist.
FAA Response: Paragraph (f)(6) requires that the wildlife hazard
management plan include procedures for an annual review of the plan.
These procedures will not become effective until the plan is completed
and approved by the FAA. Accordingly, an annual review will not be
necessary until 1 year after the FAA has approved the plan.
The annual review of the wildlife hazard management plan must be
conducted in the manner specified in the plan and as approved by the
FAA. Approved procedures to conduct this review will depend on the
complexity of the wildlife hazard and mitigation measures. In most
instances, the FAA would permit the airport operator to conduct its own
review. However, a qualified biologist may be required to review and
evaluate certain aspects of the wildlife hazard assessment.
Section as Adopted: This section is adopted with changes. For the
reasons discussed above, the events triggering a wildlife hazard
assessment in Sec. 139.337(b) have been revised. Editorial changes have
been made to paragraph (c), and some of the requirements for a wildlife
damage management biologist have been deleted. Similarly, editorial
changes have been made to paragraphs (d), (e), and (f).
In addition, paragraph (g) has been deleted and the stipulation
that the FAA will consider the frequency and size of air carrier
aircraft in determining the need for a wildlife hazard plan has been
added to paragraph (d)(3) and now applies to all airport classes.
Subsequently, paragraph (h) has been redesignated as paragraph (g).
Finally, the section number has been changed to new Sec. 139.337 from
proposed Sec. 139.339.
New Section 139.339 Airport Condition Reporting (Proposed Sec. 139.341)
Proposal: This section contained existing requirements for
reporting changed airfield conditions to air carriers. Except for a
change to the section number, the requirements of this section remained
substantially the same. Certificate holders were still required to
collect and disseminate information on the conditions of the airport,
including any construction or maintenance activities, weather or animal
hazards, and nonfunctional equipment and services. All certificated
airports were required to comply with this section.
While reporting requirements remained the same, a minor change was
made to clarify that a certificate holder can use notification systems
other than the FAA's pilot notification system, the Notices to Airmen
(NOTAM) System. Also, the term ``safety area'' was added to paragraph
(c)(2) to ensure that airport users are notified of irregularities in
the safety area, in addition to those in the movement area, loading
ramps, and parking areas.
References to other section numbers and the term ``Airport
Certification Specifications'' were changed to reflect proposed
certification changes. Minor clarifications were proposed to clarify
that the requirements of this section must be met in a manner
satisfactory to the FAA and that the ACs contain some methods of
compliance that are acceptable to the Administrator. In addition, the
section number was changed to proposed Sec. 139.341 from Sec. 139.339.
Comment: A commenter, a Class I airport operator, states that it
supports the changes to this section.
FAA Response: The FAA agrees.
Comment: A commenter states that the wording of proposed Sec.
139.341(c)(6) could be interpreted to mean that the certificate holder
must issue a NOTAM for each individual runway and taxiway sign that is
found inoperative. The commenter notes that this is unrealistic and
would place a burden on the NOTAM System and air traffic control
personnel.
FAA Response: The FAA agrees that the language of paragraph (c)(6)
is unclear. It could be interpreted to mean the certificate holder must
report either the malfunction of any sign required under Sec. 139.311
or the malfunction of the entire sign system.
The reporting of the malfunction of any required sign would quickly
overwhelm the notification system. The vast majority of signs required
under Sec. 139.311 are location and direction signs. These signs are
periodically inoperative, mainly due to burned out lights. Because of
their large number, particularly at Class I airports, a certificate
holder frequently finds these signs inoperative during daily self-
inspections and is required under Sec. 139.311 to repair them promptly.
However, reporting a malfunctioning mandatory instruction sign to
air carriers is another matter. These signs, holding position signs and
ILS critical area signs, convey critical safety information, including
where an aircraft should stop before entering an active runway and
areas where an aircraft could block the transmission of navigational
information to other aircraft. Accordingly, paragraph (c)(6) has been
revised to require certificate holders to report to air carrier tenants
the malfunction of holding position signs or ILS critical area signs.
This change will ensure that air carriers are informed of either an
individual or a systemic failure of these signs.
Section as Adopted: This section is adopted with changes. For the
reasons discussed above, proposed Sec. 139.341(c)(6) (new Sec.
139.339(c)(6)) has been revised to limit the type of signs that a
certificate holder must report if found malfunctioning. The word
``sign'' has been replaced by the terms ``holding position signs'' and
``ILS critical area signs.'' The section number also has been changed
to new Sec. 139.339 from proposed Sec. 139.341, and the reference to
proposed Sec. 139.321, ARFF: Exemptions, in paragraph (c)(8) has been
deleted.
In addition, a new paragraph (d) has been added requiring
certificate holders to maintain a record, for at least 12 consecutive
months, of each airport condition report. While this requirement was
not discussed in the proposal, other similar recordkeeping requirements
were, and new paragraph (d) mirrors these requirements.
The FAA has determined that records of airport condition reports
should be retained in the same manner as the records of self-
inspections, as required under Sec. 139.327. Although not proposed,
this change is the logical outgrowth of similar recordkeeping
requirements. Airport condition reports are typically the result of
conditions found during a self-inspection, and this change will ensure
the recordkeeping requirements in the two sections are consistent.
In accordance with AC 150/5200-28, Notices to Airmen (NOTAMS) for
Airport Operators, most certificate holders already keep airport
condition report records and have incorporated them into the follow-up
process used to address discrepancies found during self-
[[Page 6416]]
inspections. Accordingly, the FAA already included the cost and hours
to comply with this recordkeeping requirement in its estimate of
initial and annual recordkeeping burden required under the Paperwork
Reduction Act.
New Section 139.341 Identifying, Marking, and Lighting Construction and
Other Unserviceable Areas (Proposed Sec. 139.343)
Proposal: This section prescribed existing standards for the
marking and lighting of construction and other unserviceable areas of
the airfield. Except for a change to the section number, the
requirements of this section remained the same. Certificate holders
were still required to light and mark any construction or unserviceable
areas and associated equipment that may create a hazard. All
certificated airports serving scheduled air carrier operations
(proposed Class I, II, and III airports) were required to comply with
this section.
References to other section numbers and the term ``Airport
Certification Specifications'' were changed to reflect proposed
certification changes. Minor clarifications were proposed to clarify
that the requirements of this section must be met in a manner
satisfactory to the FAA and that ACs contain some methods of compliance
that are acceptable to the Administrator. In addition, the section
number was changed from Sec. 139.341 to proposed Sec. 139.343.
Comment: No comments were received on this section.
Section as Adopted: This section is adopted with two minor changes.
The word ``reporting'' in the section title has been changed to
``lighting'' to more accurately reflect the requirements of this
section. In addition, the section number was changed to new Sec.
139.341 from proposed Sec. 139.343.
New Section 139.343 Noncomplying Conditions (Proposed Sec. 139.345)
Proposal: This section contained existing requirements for
certificate holders to restrict air carrier operations in those areas
of the airport that have become unsafe and no longer comply with the
requirements of subpart D of part 139. Operators of all proposed
airport classes were required to comply with this section. Except for a
change to the section number, the requirements of this section remained
the same. The section number was redesignated from Sec. 139.343 to
proposed Sec. 139.345.
Comment: No comments were received on this section.
Section as Adopted: The section number has been changed to new Sec.
139.343 from proposed Sec. 139.345. Otherwise, the section is adopted
as proposed.
Final Rule Compliance
This final rule becomes effective 120 days after its publication in
the Federal Register.
Section 121.590 Compliance
In the conduct of operations at part 139 certificated airports, air
carriers, and the pilots used by them, may continue to operate into
part 139 airports until these airports have obtained new or revised
AOCs, as required under new Sec. 139.101, General requirements.
However, at specified dates after the effective date of the rule, air
carriers and their pilots can only use those airports that have been
certificated under new part 139.
As specified in new Sec. 121.590(a), air carriers and their pilots
will be prohibited from operating at Class I airports 12 months after
the effective date of the rule and at Class II, III, and IV airports 18
months after the effective date of the rule if the operators of these
airports have not obtained a new or revised part 139 AOC. To assist air
carriers in determining which airports have obtained a new or revised
AOC, the FAA's Airport Safety and Operations Division (AAS-300) will
provide information on the certification status of part 139 airports on
its Web site at http://www.faa.gov/arp/.
Part 139 Compliance
Any airport operator that desires to serve applicable air carrier
operations must comply with the requirements of this final rule. The
action required by an airport operator to comply will vary depending on
the type of air carrier operations served and whether the airport
operator currently holds a part 139 AOC, as well as the individual
airport's ACM.
Operators of currently certificated airports are not required to
reapply for an AOC. The FAA will issue new part 139 AOCs to all current
certificate holders, as appropriate. For most current certificate
holders, this will involve updating their existing ACM to incorporate
several new elements. The remaining certificate holders may be required
to comply with certain requirements for the first time or to extend
existing part 139 services to cover additional air carrier operations.
The final rule requires all covered airport operators to submit an
ACM tailored to each airport for the FAA's approval. The ACM is a
written document that details how the airport operator will comply with
the requirements of part 139. Airport operators that currently hold an
AOC already have an ACM. Airport operators that currently hold a
limited AOC have a modified version of an ACM, known as an airport
certification specification (ACS). Under the final rule, all ACSs must
be converted to ACMs.
Depending on existing operational procedures and emergency
services, every ACM/ACS will be in varying stages of compliance with
the final rule. Some airport operators may need only to document
existing operational procedures to comply with the new requirements.
This is the case for many Class I airport operators. Newly certificated
airport operators (Class III) may also have to develop and document new
operational and emergency procedures to comply with the new
requirements. Class II and IV airport operators may be required to do
both.
Once an airport operator submits its revised or new ACM, the FAA
will work with the airport operator to tailor the document to ensure
compliance with the final rule and may conduct an inspection of the
airport to verify that the ACM reflects actual airport conditions. The
FAA also may request changes to the ACM and any procedures it
describes.
Airport operators may continue to serve air carrier operations as
they currently do until the deadline for submitting new or revised
ACM's to the FAA. After this date, airport operators that have not
submitted their ACM for approval will no longer be able to serve
applicable air carrier operations. Airport operators that have
submitted either a new ACM or an update will be contacted by the FAA to
determine if additional action is needed and to what extent they can
continue to serve air carrier operations until a new certificate is
issued.
Currently Certificated Airports
All airport operators that hold an existing AOC will be
reclassified as Class I airports (airports serving scheduled operations
of large air carrier aircraft). These airport operators have 6 months
from the effective date of this final rule to submit revisions to their
ACM's for FAA approval.
All airport operators that hold an existing Limited Airport
Operating Certificate will be reclassified either as Class II airports
(airports serving scheduled operations of small air carrier aircraft
and unscheduled operations of large air carrier aircraft) or Class IV
airports (airports serving unscheduled operations of large air carrier
aircraft). The operators of these airports will have to convert their
existing ACS into an
[[Page 6417]]
ACM. They will have 12 months from the effective date of this final
rule to submit the revised document to the FAA for approval. In
addition, operators of Class II and IV airports have additional time to
comply with new sign, ARFF, and emergency planning requirements and may
request additional compliance time.
Uncertificated Airports
Airports serving scheduled operations of small air carrier aircraft
will be newly certificated as the result of this final rule. Operators
of these airports, designated as Class III airports, that want to
continue to serve such air carrier operations are now required to have
an AOC and must initiate the application process as prescribed in Sec.
139.103. This process is explained in more depth in the proposal (65 FR
38637). Operators of Class III airports have 12 months from the
effective date of this final rule to submit their new ACM to the FAA
for approval. Similar to Class II and IV airport operators, Class III
airport operators have additional time to comply with new sign, ARFF,
and emergency planning requirements and may request additional
compliance time.
Airports Located in the State of Alaska
The statutory authority covering the certification of airports that
serve scheduled operations of small air carrier aircraft is not
applicable to Alaskan airports. As noted in the proposal (65 FR 38639),
airports in the State of Alaska that serve large air carrier operations
will continue to be certificated under part 139 as Class I or IV
airports. Accordingly, the compliance dates in the final rule for these
airport classifications will apply. Otherwise, there are no part 139
applications for those airports in the State of Alaska that only serve
scheduled operations of small air carrier aircraft.
Airports Operated by the U.S. Government
Airports operated by the U.S. Government will no longer be
certificated under part 139. However, they may still continue to serve
air carriers operations, as set out in Sec. 121.590. As stated in the
proposal (65 FR 38641), the FAA does not have the statutory authority
to regulate airports operated by U.S. Government agencies, and
corresponding changes to Sec. 121.590 will now permit air carriers to
use U.S. Government operated airports that are not certificated under
part 139.
Paperwork Reduction Act
As required by the Paperwork Reduction Act of 1995 (44 U.S.C.
3507(d)), the FAA has submitted a copy of these sections to the Office
of Management and Budget for its review. The collection of information
was approved and assigned OMB Control Number 2120-0675.
This final rule revises current airport certification requirements
in 14 CFR part 139 and establishes certification requirements for
airports serving scheduled air carrier operations in aircraft with more
than 9 passenger seats but less than 31 passenger seats. The final rule
also clarifies existing requirements, incorporates existing industry
practices, and responds to an outstanding petition for rulemaking and
certain NTSB recommendations.
Similar to how the FAA currently certificates airports, this final
rule requires airport operators that choose to be certificated under
part 139 to document and implement procedures for complying with part
139 safety and operational requirements. To accommodate variations in
airport layout, operations, air carrier service, and other local
considerations, compliance procedures will be tailored to each airport
operator when complying with more burdensome requirements.
Several sections of the proposal had recordkeeping and reporting
requirements. Comments received on these requirements are addressed
previously in the appropriate section-by-section analysis. Several
modifications were made to recordkeeping and reporting requirements in
the final rule as the result of comments received. As a result, the
annual and recurring recordkeeping and reporting burdens have been
adjusted accordingly.
The NPRM estimate of respondents has changed slightly from 606
airport operators to 603 airport operators. The likely respondents to
recordkeeping and reporting requirements contained in the final rule
are those civilian U.S. airport certificate holders who operate
airports that serve scheduled and unscheduled operations of air carrier
aircraft with more than 30 passenger seats (approximately 566
airports). These airport operators already hold a part 139 AOC and
comply with most of the information collection requirements required in
the final rule. Certain airport operators not currently certificated by
the FAA also will be required to apply for a certificate under this
rule if they want to continue to serve certain air carriers. These
airports, approximately 37 airports, serve scheduled operations of air
carrier aircraft designed for more than 9 passenger seats but less than
30 passenger seats.
While many part 139 reporting and recordkeeping requirements remain
substantially unchanged, additional information collections have been
adopted in this final rule. Both existing and new requirements are
necessary to allow the FAA to verify compliance with proposed part 139
safety and operational requirements.
This final rule constitutes a recordkeeping and reporting burden
for operators of airports certificated under part 139 because the FAA
will continue to require operators of certificated airports to comply
with certain safety requirements prior to serving certain air carrier
aircraft. When an airport satisfactorily complies with these
requirements, the FAA issues to that facility an AOC that permits an
airport to serve large air carriers. The FAA periodically inspects
these airports to ensure continued compliance safety requirements,
including the maintenance of specified records. Both the application
for an AOC and compliance inspections (typically conducted on an annual
basis) require regulated airport operators to collect and report
certain operational information.
In addition, this final rule requires operators of certificated
airports to develop and comply with a FAA-approved ACM, in manner
similar to what was previously required. The ACM details how an airport
complies with the requirements of part 139 and includes other
instructions and procedures to assist airport personnel in performing
their duties and responsibilities.
Under this rule, the FAA continues to require that the AOC remain
in effect as long as the need exists and the operator complies with the
terms of the AOC and the ACM. Certain changes in the operation of the
airport must be reported to the FAA for information or approval. If the
airport operator believes that an exemption is needed to commence
airport operations, justification for and the FAA's approval of the
exemption is required for issuance of the AOC. The operator may request
the FAA's approval of changes to the AOC or ACM, or an exemption from
part 139 requirements, by submitting justification and documentation.
Also, the FAA Administrator may propose changes to the AOC or ACM, and
the airport operator may submit contrary evidence of argument
concerning the proposed changes.
[[Page 6418]]
The frequency of collection would vary depending on the type of
information collected, the size of the respondent's airport, and the
type of air carrier operations served.
The FAA refined its NPRM estimate of initial and annual hourly
burden to respondents, as detailed in the following table. Burden hours
are listed separately for airports that currently hold a part 139 AOC
and for those airports that will be newly certificated:
--------------------------------------------------------------------------------------------------------------------------------------------------------
Initial reporting hours Initial recordkeeping Annual reporting hours Annual recordkeeping hours
---------------------------- hours -------------------------------------------------------
New part 139 sections ----------------------------
Currently Newly Currently Newly Currently Newly Currently Newly
certificated certificated certificated certificated Certificated certificated certificated certificated
--------------------------------------------------------------------------------------------------------------------------------------------------------
139.103................................. 0 296 0 0 0 16 0 0
139.111................................. 0 0 0 0 0 32 0 0
139.113................................. 0 0 0 0 0 5 0 0
139.201................................. 0 0 0 0 0 592 0 592
139.203................................. 0 1,480 0 0 0 0 0 0
139.205................................. 22,640 0 0 0 0 1,184 0 0
139.303................................. 0 0 9,056 592 0 0 13,569 340
139.313................................. 1,560 648 0 0 0 0 520 216
139.317................................. 0 0 0 0 0 0 0 2,035
139.319................................. 0 0 0 888 0 0 0 555
139.321................................. 0 0 260 296 0 0 2,264 148
139.325................................. 0 0 5,200 1,480 0 0 3,120 888
139.327................................. 0 0 2,080 592 0 0 13,520 3,848
139.329................................. 0 0 8,960 2,960 0 0 560 185
139.337................................. 0 0 0 0 16 16 3,424 1,173
139.339................................. 0 0 520 148 0 0 3,250 925
---------------
Subtotal............................ 24,200 2,424 26,076 6,956 16 1,845 40,227 10,905
---------------
Totals.............................. 26,624
33,032
1,861
51,132
===============
59,656
52,993
--------------------------------------------------------------------------------------------------------------------------------------------------------
The estimate of the total initial reporting and recordkeeping
hourly burden for the final rule is 59,656 (an increase of 15,296 hours
from the NPRM estimate). The annual hourly burden is 52,993 (an
increase of 223 hours from the NPRM estimate). Burden hours are
estimated as the number of reports and records made by each respondent.
This figure varies yearly, as does the average time per response. These
variations are largely due to disparities in airport size and aircraft
operations served. The labor burden is estimated on an annual basis.
Operations/maintenance labor accounts for an estimated 70 percent
of the hours, and clerical labor makes up the other 30 percent. Cost
per hour is estimated at $26 for operations/maintenance labor and $14
for clerical labor. Other expenses, such as general and administrative
costs, overhead costs, and other indirect costs are estimated at
approximately 15 percent of the direct labor costs. The estimate of the
total initial reporting and recordkeeping cost burden for the final
rule is $1,536,738 (an increase of $394,025 from the NPRM estimate).
The annual cost burden is $1,356,098 (an increase of $5,743 from the
NPRM estimate).
An agency may not conduct or sponsor and a person is not required
to respond to a collection of information unless it displays a
currently valid OMB control number.
International Compatibility
In keeping with U.S. obligations under the Convention on
International Civil Aviation, it is the FAA policy to comply with
International Civil Aviation Organization (ICAO) Standards and
Recommended Practices to the maximum extent practicable. The FAA
determined that there are no ICAO Standards and Recommended Practices
that correspond to these regulations.
The Joint Aviation Authorities, an associated body of the European
Civil Aviation Conference, develop Joint Aviation Requirements (JAR) in
aircraft design, manufacture, maintenance, and operations for adoption
by participating member civil aviation authorities. The JAR does not
address airport certification.
Regulatory Evaluation, Regulatory Flexibility Determination,
International Trade Impact Assessment, Federalism, and Unfunded
Mandates Assessment
Changes to Federal regulations must undergo several economic
analyses. First, Executive Order 12866 directs that each Federal agency
shall propose or adopt a regulation only upon a reasoned determination
that the benefits of the intended regulation justify its costs. Second,
the Regulatory Flexibility Act of 1980, as amended, requires agencies
to analyze the economic impact of regulatory changes on small entities.
Third, the Trade Agreements Act (19 U.S.C. 2531-2533) prohibits
agencies from setting standards that create unnecessary obstacles to
the foreign commerce of the United States. In developing U.S.
standards, this Trade Act also requires agencies to consider
international standards and, where appropriate, use them as the basis
of U.S. standards. And fourth, the Unfunded Mandates Reform Act of 1995
requires agencies to prepare a written assessment of the costs,
benefits, and other effects of proposed or final rules that include a
Federal mandate likely to result in the expenditure by State, local, or
tribal governments, in the aggregate, or by the private sector, of $100
million or more annually (adjusted for inflation).
In conducting these analyses, the FAA has determined that the
economic impact of this rule will generate benefits that justify its
costs, does meet the standards for a ``significant regulatory action''
as defined in the Executive Order, and is significant as defined by the
Department of Transportation's Regulatory Policies and Procedures. The
rule, therefore, is subject to review by OMB. The FAA has determined
that this rule will not constitute a barrier to
[[Page 6419]]
international trade and does not contain a significant
intergovernmental or private sector mandate. The agency has concluded
that the rule will have a significant impact on a substantial number of
small entities and has prepared a final regulatory flexibility
analysis. These analyses, available in the docket, are summarized
below.
In 1995, the FAA issued regulations aimed at ensuring safety in
scheduled air carrier operations in aircraft with 10 or more passenger
seats. Since then, Congress has authorized the FAA to certificate
airports serving scheduled air carrier operations, conducted in small
aircraft. In 2000, the FAA issued an NPRM to revise the airport
certification process and to establish certification requirements for
these airports.
Under this revised certification process, certificated airports
will be reclassified into four new classes, Class I-IV, based on the
type of air carrier operations served. Class I, II, and IV airports
will be those airports that currently hold AOCs, and Class III airports
will be those airports being newly certificated. As specified in the
authorizing statute, airport certification requirements will not be
applicable to airports located in the State of Alaska that only serve
scheduled operation of small air carrier aircraft.
Similar to how the FAA currently certificates airports, the rule
requires airport operators choosing to be certificated under part 139
to document and implement procedures for complying with part 139 safety
and operational requirements. To accommodate variations in airport
layout, operations, air carrier service, and other local
considerations, the rule requires that compliance procedures be
tailored to each airport operator when complying with the more
burdensome requirements.
Benefits
The expected benefits of this rule include reducing fatalities,
injuries, and property damage at airports with certain scheduled and
unscheduled air carrier operations. This is expected to be particularly
true at airports serving scheduled air carrier operations conducted in
common carrier aircraft designed for more than 9 passenger seats but
less than 31 passenger seats (smaller aircraft).
This rule affects all currently certificated airports and an
estimated 37 additional airports that are currently uncertificated.
Accordingly, benefits are expected to accrue at all four classes of
certificated airports created under this rule. Several different types
of safety improvements are expected. These involve the:
(1) Prevention of accidents or collisions because of nonstandard or
inadequate signs, markings, and lighting and traffic and wind direction
indicators;
(2) Mitigation of accident damages by improving runway safety areas
at certain airports;
(3) Mitigation of accidents as a result of expanding ARFF coverage
to additional air carrier operations;
(4) Prevention and mitigation of fires at airport fuel farms;
(5) Prevention and mitigation of accidents caused by snow and ice
accumulation; and
(6) Prevention and mitigation of wildlife problems as a result of
improved procedures for wildlife hazard management.
A brief discussion of benefits is included below. A more extensive
discussion is contained in the full regulatory evaluation in the
docket.
Runway Safety Areas
This rule will require that Class III airports meet safety area
requirements for the first time. These airports have been encouraged to
install safety areas for over 10 years, and many have done so through
Federal airport funding programs. Although the rule will not require
immediate installation of these safety facilities at any class of
airports, over time the eventual installation of safety areas at
certificated airports will result in more safety in air transportation.
The following is a good example of the potential benefits from
runway safety areas. On May 8, 1999, a SAAB 340 aircraft overran a
runway at New York's John F. Kennedy International Airport. The airport
had recently installed arresting material in compliance with part 139
safety area requirements that resulted in the airplane stopping 50 feet
short of Thurston Bay. The incident resulted in very little damage to
the aircraft and one minor passenger injury. In sharp contrast, an
accident occurred on the same runway in 1984, before the arresting
material was installed, resulted in an SAS DC-10 aircraft running into
the bay. This accident resulted in multiple passenger injuries and
extensive airplane damage.
Emergency Response Services and Equipment
An important safety benefit of this final rule is more widespread
availability of emergency response services and equipment. These
services are used to respond to airport emergencies, including aircraft
accidents, medical emergencies in the terminal building and aircraft
fueling fires or spills.
Part 139 accident mitigation requirements provide a comprehensive
response to aircraft accidents, and other emergencies. For example,
required alarm and communication systems ensure that both ARFF and
airport personnel are notified promptly of an accident, and alert other
necessary emergency service providers in the local community (i.e.,
paramedic, police, ambulance service and hospitals). Similarly,
accident mitigation measures ensure other needed emergency services are
provided, including security and crowd control, removal of disabled
aircraft and other debris from movement areas, transportation and
facilities for uninjured and injured persons, and storage of deceased
persons. All of these measures contribute to a comprehensive emergency
response that mitigates the loss of passenger lives and property,
prevents injury to responding personnel, and protects air carrier
aircraft and the public from unsafe conditions.
There is ample evidence that part 139 accident mitigation
requirements can save lives and reduce injuries. Perhaps the clearest
example of that was an accident that occurred at Los Angeles
International Airport on February 1, 1991. This tragedy involved the
collision of a U.S. AIR 737-300 and a Skywest Metro on Runway 24L. The
crew and 10 passengers on the Metro were killed, as were some of the
crew and 20 passengers on the 737-300. However, the NTSB credited the
part 139-required emergency response for saving lives.
A major safety provision of the final rule is that it will extend
the required availability of emergency response services and equipment
at every landing and takeoff of scheduled air carrier aircraft with 10
to 30 seats. This capability is required now for air carrier operators
with more than 30 seats, and, as discussed earlier, there is evidence
that lives have been saved and injuries prevented or reduced as a
result. In some cases, this protection may not currently be available
for small aircraft operations at airports served by large air carrier
aircraft. For example, an accident that occurred at Quincy, Illinois (a
Class I airport) on November 19, 1996 might have been mitigated had
ARFF been on site during the departure of a small air carrier aircraft.
This accident involved the collision of a United Express Beech
1900C (a small aircraft) and a Beech King Air (a general aviation
aircraft) during the
[[Page 6420]]
ground operations of the two aircraft. These aircraft collided at the
intersection of two runways. At the time of the accident, there were no
large air carrier aircraft operations in progress or imminent, and,
consequently, the airport operator was not required to provide
emergency response services, and these services were not on the site.
When required, emergency response services, including ARFF, were
provided by the fire department, whose personnel would come to the
airport from an offsite location to staff emergency equipment during
the operations of large air carrier aircraft. All 10 passengers and 2
crew members aboard the United Express Beech 1900C and the two
occupants aboard the King Air were killed as a result of post crash
fires.
The NTSB found that the speed with which the fire enveloped the
King Air, and the intensity of the fire, precluded the survivability of
the occupants. However, the occupants of the Beech 1900C did have the
opportunity to escape, but could not open external doors. The NTSB
concluded, ``if on-airport ARFF protection had been required for this
operation at Quincy Airport, lives might have been saved.'' (NTSB
Aircraft Accident Report--Runway Collision United Express Flight 5925
and Beechcraft King Air A90--Quincy Municipal Airport, Illinois--
November 19, 1996--NTSB AAR-97/04, P.51.)
Based on this accident history, a risk assessment provides a
reasonable quantified estimate of the potential value of part 139
emergency response requirements. The final rule will extend these
emergency services to passengers traveling in air carrier aircraft with
10 to 30 passenger seats. For an accident in a 30 passenger seat
aircraft occupied at 60 percent of capacity (the industry average), the
expected benefits equal $63 million based on 21 potentially prevented
fatalities (18 passengers and three crew members) multiplied by $3
million per prevented fatality. While $63 million is the expected
benefit over a ten year horizon, using the Poisson distribution with a
mean of one accident over a ten-year period, there is a 26 percent
chance of two or more such accidents with a value in excess of $100
million.
Fuel Storage Fires
Another expected benefit of this rule is prevention/mitigation of
fuel storage fires. The rule requires all classes of airports to
address fuel storage fires in their disaster plans. This will better
prepare airports to prevent and/or extinguish the kind of fire that
occurred at the Stapleton International Airport in Denver, CO, on
November 25, 1990. That fire erupted on a fuel farm about 1.8 miles
from the main terminal and burned for 48 hours, destroying about 3
million gallons of fuel. Flight operations of a major air carrier were
disrupted due to the lack of fuel, and the air carrier estimated total
damage to have reached between $15 and $20 million.
The NTSB concluded that the City and County of Denver (the airport
certificate holder) and the fire department, in particular, apparently
had not considered the possibility of a fire of this type since no
procedures or contingency plans were in place. The FAA has determined
that contingency plans that cover the possibility of a major fuel farm
fire could result in similar fires being extinguished much sooner,
perhaps resulting in considerably less damage.
Snow and Ice Control
Another safety benefit is expected from improved snow and ice
control, which will reduce the potential for snow- and ice-related
accidents. On March 17, 1993, a BAC-BA-Jetstream 3101 aircraft was
making a night instrument approach to Raleigh County Memorial Airport
in Beckley, WV. Because the runway was not properly plowed, and berms
of snow concealed the runway lights at ground level, the captain lost
control after touchdown, and the airplane sustained substantial damage.
This rule will require Class II and III airports to develop
tailored snow and ice control plans. Class I airports are already
required to have such plans, and Class IV airports are not required to
have such plans. Although many of these classes of airports already
have procedures for snow and ice removal, this rule will formalize
consistent plans across all airports with scheduled air carrier
services. The FAA concludes that this low-cost requirement to
standardize responses to snow and ice conditions at certificated
airports will significantly help prevent the kind of accident discussed
above.
Wildlife Hazard Management
The expected benefit of this section of this final rule is the
reduction of wildlife hazards to air carrier operations. Airports not
currently certificated by the FAA are not required to meet part 139
wildlife hazard management requirements. At some of these airports,
wildlife hazards already exist that under the final rule will require
the airport operator to conduct a wildlife assessment and possibly the
implementation of a wildlife hazard management plan. The expansion of
wildlife hazard management requirements to these airports is intended
to ensure that all airport certificate holders serving scheduled air
carriers address wildlife hazards in a consistent and effective manner.
Accordingly, the FAA expects to reduce the number of wildlife strikes
that will otherwise occur.
At Class III airports between 1991 and 1997, there were 10 reported
wildlife strikes involving 19-passenger seat Beech-1900 aircraft (22
potential total occupants). The FAA values each prevented fatality to
be $3 million. FAA cost estimates for injuries range from $38,500 for a
minor injury to $521,800 for a serious injury. It is likely that
without mitigation the past 10 or more wildlife strikes to aircraft
will reoccur at Class III airports, affecting 10 to 130 aircraft
occupants. It is not unreasonable to expect that 10 percent of these
occupants will incur minor to serious injury and that several may die
as result of a wildlife strike. The FAA estimates that the minimum
potential averted cost is several hundred thousand dollars; yet just
one fatal accident raises the preventable cost to $3 million.
With the structured approach of the final rule to resolving
wildlife strikes to aircraft, it is very reasonable to expect that each
airport solution will be one where the benefits exceed the costs, and
in some cases, the net benefit may be substantial. Airport improvements
to reduce wildlife hazards will ultimately provide a safer environment
for all civil aircraft operations. Given the growing population of
certain wildlife, the increasing number of aircraft operations and the
history of reported wildlife strikes, potential benefits for just the
newly certificated airports (37 Class III airports) range from a low of
several million dollars (from damage and injuries avoided) to an
estimate in excess of $10 million.
The benefits of the wildlife strike provision of the final rule
extend beyond all Class III airports to all certificated airports.
However, the wide range of possible compliance methods forestall a
reasonable range estimate of net benefits. It is very reasonable to
expect that wildlife preventative action at each certificated airport
will have benefits in excess of costs with system-wide benefits in the
millions.
Costs
Some of the requirements of this rule that will impose costs--such
as improved snow and ice control; marking, signs, and lighting; and
wildlife hazard management--are intended to prevent accidents. Other
[[Page 6421]]
requirements, such as emergency planning and improved emergency
response capability, are intended to mitigate accidents should they
occur.
When the FAA published the NPRM the agency estimated that the
present value of the 10-year costs of the proposed rule was about $46
million. Based on the comments received, the FAA increased the
estimated costs for the final rule, primarily to allow for ARFF costs
at airports that will be newly certificated as a result of this rule.
The major items of this rule that are expected to impose costs are
summarized below:
------------------------------------------------------------------------
Initial/capital Annual recurring
Major cost items costs costs
------------------------------------------------------------------------
Risk Reduction Items (Subpart D-- $1,495,316 $1,447,215
Operations): Personnel; Records;
Marking, Signs, and Lighting;
Snow and Ice Control; Handling
and Storing of Hazardous
Substances and Materials; Traffic
and Wind Direction Indicators;
Self-Inspection Program; Access
to Movement Areas and Safety
Areas; Wildlife Hazard Management
Mitigation Items (ARFF, Airport 2,719,242 8,405,105
Emergency Plan)..................
-------------------------------------
Program Total--Current Dollars $4,214,558 $9,852,320
------------------------------------------------------------------------
The FAA estimates that the present value of the 10-year cost of
this rule is $73.4 million. A more detailed description of how these
costs were estimated is contained in the full regulatory evaluation.
The FAA has made an effort not to underestimate costs. As a result,
the estimated costs of this rule may be high because it is largely
based on assumed average costs being applicable to all airports in each
class, when in actuality each airport will have requirements tailored
to its individual situation. In the application of this rule, each
airport (particularly the new Class III airports) may have already
complied with this rule, or may receive relief from certain aspects of
this rule under the exemption provisions.
Benefit-Cost Comparison
The estimated benefits and costs herein assume that the average
airport incurs the full compliance cost and that the traveling public
and society receives the associated benefit. Much of the difficulty to
accurately assess the expected benefit and cost of this regulation is
the complex nature of compliance with part 139 requirements. Each
airport is unique with potentially different methods used by the
airport operator to comply with part 139 requirements. Further, there
are very significant Federal policies in place to mitigate the economic
impact of the final rule. These policies are discussed in length in a
separate Report to Congress. This Report discusses the economic impact
of the final rule on air service to Class III airports.
As discussed in the Report to Congress, several factors may help to
mitigate part 139 compliance costs. First, Congress has directed the
FAA to set aside $15 million of AIP funds for certain capital
expenditures that may be required by the final rule for four fiscal
years. Second, the FAA will assist airport operators to obtain
additional Federal funds, as appropriate. Third, at approximately two-
thirds of these newly certificated airports (Class III airports), air
carriers also receive federal EAS subsidies, so the Federal government
will probably absorb most, if not all of the cost of the rule through
increased subsidies to air carriers. Fourth, if Federal, state and
local funding is not adequate, the FAA will seek alternative means of
compliance with part 139 requirements or will use its statutory
authority to grant exemptions from requirements that would be too
costly, burdensome, or impractical.
The FAA estimates that one or more accidents that will be mitigated
by compliance with emergency response requirements of the final rule
will result in an estimated benefit ranging from $63 million to well in
excess of $100 million. The FAA is not providing a single dollar value
for the total benefits of the final rule because the range of the
possible compliance methods is too great and complying with risk
reduction and accident mitigation requirements may require multiple
actions. The FAA does note that the benefits estimate is conservative
and the potential error in assessing the benefits will be to
underestimate total benefits.
The FAA estimates that the present value of the 10-year cost of
this final rule is about $73.4 million. This estimate is likely to be
high because it is based on assumed average costs across all airports
in each airport class. In the application of this rule, each airport
may already be in compliance with all or certain requirements of this
final rule, or may receive relief from certain aspects of the rule
through alternate means of compliance or the exemption process.
Thus, the FAA believes that numerous safety benefits will result
from the multiple provisions in the final rule. These benefits will
reduce the risk of future accidents and mitigate loss if another
accident occurs. As noted above, the total cost estimate is
conservative and does not include a host of policies and available
funding designed to reduce the compliance cost of the final rule.
Consequently, in view of the moderate costs and potential benefits, the
FAA concludes that the benefits of the final rule justify the costs.
Final Regulatory Flexibility Analysis (FRFA)
The Regulatory Flexibility Act of 1980 (RFA) establishes ``as a
principle of regulatory issuance that agencies shall endeavor,
consistent with the objective of the rule and of applicable statutes,
to fit regulatory and informational requirements to the scale of the
business, organizations, and governmental jurisdictions subject to
regulation.'' To achieve that principle, the RFA requires agencies to
solicit and consider flexible regulatory proposals and to consider the
rationale for their actions. The RFA covers a wide range of small
entities, including small businesses, not-for-profit organizations, and
small governmental jurisdictions.
Agencies must perform a review to determine whether a proposed or
final rule will have a significant economic impact on a substantial
number of small entities. If the determination is that it will have
such an impact, the agency must prepare a regulatory flexibility
analysis as described in the RFA. However, if an agency determines that
a proposed, or final, rule is not expected to have a significant
economic impact on a substantial number of small entities, section
605(b) of the 1980 RFA provides that the head of the agency may so
certify and a regulatory flexibility analysis is not required. The
certification must include a statement providing the factual basis for
this
[[Page 6422]]
determination, and the reasoning should be clear.
This rule will affect publicly owned airports. When the population
of a public airport-owning entity is less than 50,000, it is considered
a small entity. Based upon the above review, the FAA concludes that
this final rule will have a significant economic impact on a
substantial number of small entities. Accordingly, the following final
regulatory flexibility assessment was prepared as required by the RFA.
Issues To Be Addressed in a Final Regulatory Flexibility Analysis
The central focus of a final regulatory flexibility analysis, like
the initial regulatory flexibility analysis (IRFA), is the requirement
that agencies evaluate the impact of a rule on small entities and
analyze regulatory alternatives that minimize the impact when there
will be a significant economic impact on a substantial number of small
entities.
The five requirements, outlined in section 604(a)(1-5) of the 1980
RFA, are listed and discussed below:
(1) A succinct statement of the need for, and objectives of, the
rule. Before 1996, the FAA's statutory authority to certificate
airports was limited to those airports serving air carrier operations
using aircraft with more than 30 passenger seats. However, this
authority (49 U.S.C. 44706) was broadened by the Federal Aviation
Administration Reauthorization Act of 1996 to allow the FAA to
certificate airports, with the exception of those located in the State
of Alaska, that serve any scheduled passenger operation of an air
carrier operating aircraft designed for more than 9 passenger seats but
less than 31 passenger seats. The FAA's existing authority to
certificate airports serving air carrier operations conducted in
aircraft with more than 30 seats remained unchanged.
With this rule, the FAA intends to extend airport certification
standards to airports serving scheduled air carrier operations
conducted in aircraft designed for more than 9 passenger seats but less
than 31 passenger seats.
The primary objective of this final rule is to ensure safety in air
transportation by regulating the operation and maintenance of airports
serving certain scheduled air carrier operations. The rule is necessary
to prevent future accidents similar to those that have recently
occurred and to mitigate fatalities and injuries when accidents do
occur.
(2) A summary of the significant issues raised by the public
comments in response to the IRFA, a summary of the assessment of the
agency of such issues, and a statement of any changes made in the
proposed rule as a result of such comments. There were a substantial
number of comments received from operators of airports serving small
air carrier operations concerned about the financial burden that the
proposed rule would place on them. In particular these commenters are
concerned about personnel costs to comply with proposed ARFF
requirements.
In response to public comments, several changes were made to the
final rule. A primary change is that the sections of the proposed rule
that dealt with obtaining an exemption from the ARFF requirements have
been clarified for the final rule. The final rule is more explicit in
describing how to apply for an exemption. The FAA believes that the
exemption provision will result in actual compliance costs that are
substantially less than those estimated in the final regulatory
evaluation. The agency was not able to quantify the reduction in
compliance costs resulting from possible exemptions. However, it should
be noted that all requirements of part 139 will be tailored to each
airport through the ACM. In addition, the time period to accomplish
some requirements, such as the preparation of the ACM, was extended,
especially for the smaller airports.
(3) A description of, and an estimate of the number of, small
entities to which the rule will apply or an explanation of why no such
estimate is available. The Small Business Administration (SBA)
classifies all airports that are operated under the airport ownership
of a public entity with a population of 50,000 or less as small
entities. Using the SBA's definition of a ``small'' public entity,
there are more than 200 small entity airports that will be affected by
this rule. Most of the small entities are expected to be Class I
airports (more than 100 are small entities), which are already
certificated under part 139. The largest economic impact is expected to
occur to the Class III airports (approximately 25 are small entities),
which would be newly certificated under the final rule.
(4) A description of the projected reporting, recordkeeping, and
other compliance requirements of the rule, including an estimate of the
classes of small entities that will be subject to the requirement and
the type of professional skills necessary for preparation of the report
or record. The final rule will create additional reporting or
recordkeeping requirements beyond those already specified in existing
part 139. For each airport, the preparation of this documentation may
involve the airport manager, operations and maintenance personnel, and
clerical staff. For each small entity, the FAA estimates the average
initial hours required to set up a recordkeeping system will be 70
hours and expects a continuing additional paperwork requirement of
about 90 hours annually.
(5) A description of the steps the agency has taken to minimize the
significant economic impact on small entities consistent with the
stated objectives of applicable statutes, including a statement of the
factual, policy, and legal reasons for selecting the alternative
adopted in the final rule, and why each one of the other significant
alternatives to the rule considered by the agency that affect the
impact on small entities was rejected. The FAA extensively considered
several alternatives, described in the IRFA, and determined that the
alternative chosen for the NPRM was the only alternative that was
relatively affordable and achieved the safety objectives of the
proposed rule. This initial alternative was subjected to public
scrutiny during the comment period of the NPRM process. The comments
received were responded to, as described above, and this final rule is
the selected alternative.
Extended Discussion of the Rule Comments on Affordability and Safety
The last major revision of part 139 occurred in November 1987.
Since then, industry practices and technology have changed
significantly. Subsequently, the FAA monitored the effectiveness of
part 139 and has taken this opportunity to update part 139
requirements.
The FAA initiated this rulemaking to ensure safety in air
transportation at airports serving small air carrier operations, fully
appreciating the financial limitations of these airports. In 1996,
Congress authorized the FAA to certificate airports serving small air
carrier operations to ensure further safety at airports providing
scheduled air service. This was the same year that all occupants died
in a collision of a United Express Beech 1900C (under 30 seat air
carrier aircraft) and a Beech King Air (a general aviation aircraft).
The NTSB concluded that ``* * * if on-airport ARFF protection had been
required for this operation at Quincy Regional Airport, lives might
have been saved.''
An industry/FAA evaluation of possible regulatory alternatives for
the certification of airports serving small air carrier aircraft
concluded that there exists a need to require at least some minimum
level of both risk reduction and accident mitigation measures at
airports during operations of smaller air carrier airplanes.
[[Page 6423]]
The FAA recognizes the need to provide some flexibility in the
implementation of certain safety measures at airports with infrequent
air carrier service or where local resources are severely limited.
Airports in smaller communities do not always have the resources to
support their airports at the same level as large metropolitan areas
without adversely affecting other community services and
infrastructure.
There are other mitigating factors. The FAA permits alternate means
of compliance to accommodate local conditions and uses its statutory
authority to grant exemptions from part 139 requirements, as
appropriate. This statutory authority requires the FAA to ensure that
an airport it certificates provides for the operation and maintenance
of adequate safety equipment.
There are several methods available to small-entity airports to
mitigate the economic impact of this rule. One is that the Airport
Improvement Program (AIP) funding (often supplemented by state grants)
is available for certain capital expenditures that may be required by
the rule such as firefighting equipment, airport marking and signs.
Another avenue is the Essential Air Service (EAS) Program. For Class
III airports that are owned by small communities, serve a limited
number of passengers, and operate at a loss, it is likely that much of
the final actual costs to the airport would be passed on to the air
carriers. At airports where carriers receive EAS subsidies
(approximately two-thirds of all Class III airports) the Federal
Government will probably absorb most, if not all, of the cost of the
rule through increased subsidies.
By tailoring compliance to accommodate local conditions, and/or
making use of the statutory exemption, the FAA will maintain the
necessary oversight of ARFF, while ensuring that the ARFF requirements
are appropriate for the airport size and type of air carrier
operations. There will not be a blanket exemption for airports with
infrequent or smaller air carrier operations, nor will the agency
relieve an airport from the obligation to provide some level of ARFF
coverage.
Summary
After considering the alternatives for the certification of
airports serving small air carrier operations and alternatives for
updating part 139 (as specified in the IFRA), the FAA determined that
this rule is necessary to ensure safety in air transportation. However,
to accommodate variations in airport size and operation, the FAA may
allow alternative means of compliance with part 139 requirements. This
will allow the most cost effective and flexible method of ensuring
safety to be employed at all covered airports while providing for the
special needs of small entities.
International Trade Impact Assessment
The Trade Agreement Act of 1979 prohibits Federal agencies from
engaging in any standards or related activities that create unnecessary
obstacles to the foreign commerce of the United States. Legitimate
domestic objectives, such as safety, are not considered unnecessary
obstacles. The statute also requires consideration of international
standards and, where appropriate, that they be the basis for U.S.
standards.
In accordance with the above statute, the FAA has assessed the
potential effect of this final rule and has determined that it will
have only a domestic impact and therefore create no obstacles to the
foreign commerce of the United States.
Unfunded Mandates Reform Act
The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1532-1538) is
intended, among other things, to curb the practice of imposing unfunded
Federal mandates on State, local, and tribal governments.
Title II of the Act requires each Federal agency to prepare a
written statement assessing the effects of any Federal mandate in a
proposed or final agency rule that may result in the expenditure of
$100 million or more (adjusted annually for inflation in any one year)
by State, local, and tribal governments (in the aggregate) or by the
private sector. Such a mandate is deemed to be a ``significant
regulatory action.''
This final rule does not contain such a mandate. Therefore, the
requirements of Title II of the Unfunded Mandates Reform Act of 1995 do
not apply.
Executive Order 3132, Federalism
The FAA has analyzed this final rule under the principles and
criteria of Executive Order 13132, Federalism. Most airports subject to
this rule are owned, operated, or regulated by a local governmental
body (such as a city or county government), which is either
incorporated by or part of a State. In a few cases, the airports are
operated directly by the States. The FAA has determined that this rule
would have minimal direct effect on the States and would not alter the
relationship established by law between the airport certificate holders
and the FAA. The FAA considers the annual costs of compliance with this
rule low compared with the resources available to the airports. Before
issuing the NPRM leading to this rule, the FAA consulted with
representatives of the airports through its ARAC. The FAA also
consulted with the States through various national associations of
state and local governments. In consulting with state governments, the
FAA provided the opportunity for them to comment on the NPRM leading to
this rule.
After due consideration of comments received, the FAA has
determined that this action would not have a substantial direct effect
on the States, on the relationship between the Federal Government and
the States, or on the distribution of power and responsibilities among
the various levels of government. Therefore, the FAA has determined
that this action does not have federalism implications.
Environmental Analysis
FAA Order 1050.1D defines the FAA actions that may be categorically
excluded from preparation of a National Environmental Policy Act (NEPA)
environmental impact statement. In accordance with FAA Order 1050.1D,
appendix 4, paragraph 4(j), this rulemaking action qualifies for a
categorical exclusion.
Regulations That Significantly Affect Energy Supply, Distribution, or
Use
The FAA has analyzed this NPRM under Executive Order 13211, Actions
Concerning Regulations that Significantly Affect Energy Supply,
Distribution, or Use (May 18, 2001). We have determined that it is not
a ``significant energy action'' under the executive order because it is
not a ``significant regulatory action'' under Executive Order 12866,
and it is not likely to have a significant adverse effect on the
supply, distribution, or use of energy.
List of Subjects
14 CFR Part 121
Air carriers, Aircraft, Aviation safety, Charter flights, Safety,
Transportation.
14 CFR Part 139
Air carriers, Airports, Aviation safety, Reporting and
recordkeeping requirements.
The Amendment
0
In consideration of the foregoing, the Federal Aviation Administration
amends Chapter I of Title 14, Code of Federal Regulations as follows:
[[Page 6424]]
PART 121--OPERATING REQUIREMENTS: DOMESTIC, FLAG, AND SUPPLEMENTAL
OPERATIONS
0
1. The authority citation for part 121 continues to read as follows:
Authority: 49 U.S.C. 106(g), 40113, 40119, 41706, 44101, 44701-
44702, 44705, 44709-44711, 44713, 44716-44717, 44722, 44901, 44903-
44904, 44912, 46105.
0
2. Revise Sec. 121.590 to read as follows:
Sec. 121.590 Use of certificated land airports in the United States.
(a) Except as provided in paragraphs (b) or (c) of this section, or
unless authorized by the Administrator under 49 U.S.C. 44706(c), no air
carrier and no pilot being used by an air carrier may operate, in the
conduct of a domestic type operation, flag type operation, or
supplemental type operation, an airplane at a land airport in any State
of the United States, the District of Columbia, or any territory or
possession of the United States unless that airport is certificated
under part 139 of this chapter. Further, after June 9, 2005 for Class I
airports and after December 9, 2005 for Class II, III, and IV airports,
when an air carrier and a pilot being used by the air carrier are
required to operate at an airport certificated under part 139 of this
chapter, the air carrier and the pilot may only operate at that airport
if the airport is classified under part 139 to serve the type airplane
to be operated and the type of operation to be conducted.
(b) An air carrier and a pilot being used by the air carrier in the
conduct of a domestic type operation, flag type operation, or
supplemental type operation may designate and use as a required
alternate airport for departure or destination an airport that is not
certificated under part 139 of this chapter.
(c) An air carrier and a pilot used by the air carrier in
conducting a domestic type operation, flag type operation, or
supplemental type operation may operate an airplane at an airport
operated by the U.S. Government that is not certificated under part 139
of this chapter, only if that airport meets the equivalent--
(1) Safety standards for airports certificated under part 139 of
this chapter; and
(2) Airport classification requirements under part 139 to serve the
type airplane to be operated and the type of operation to be conducted.
(d) An air carrier, a commercial operator, and a pilot being used
by the air carrier or the commercial operator--when conducting a
passenger-carrying airplane operation under this part that is not a
domestic type operation, a flag type operation, or a supplemental type
operation--may operate at a land airport not certificated under part
139 of this chapter only when the following conditions are met:
(1) The airport is adequate for the proposed operation, considering
such items as size, surface, obstructions, and lighting.
(2) For an airplane carrying passengers at night, the pilot may not
take off from, or land at, an airport unless--
(i) The pilot has determined the wind direction from an illuminated
wind direction indicator or local ground communications or, in the case
of takeoff, that pilot's personal observations; and
(ii) The limits of the area to be used for landing or takeoff are
clearly shown by boundary or runway marker lights. If the area to be
used for takeoff or landing is marked by flare pots or lanterns, their
use must be authorized by the Administrator.
(e) A commercial operator and a pilot used by the commercial
operator in conducting a domestic type operation, flag type operation,
or supplemental type operation may operate an airplane at an airport
operated by the U.S. Government that is not certificated under part 139
of this chapter only if that airport meets the equivalent--
(1) Safety standards for airports certificated under part 139 of
this chapter; and
(2) Airport classification requirements under part 139 of this
chapter to serve the type airplane to be operated and the type of
operation to be conducted.
(f) For the purpose of this section, the terms--
Domestic type operation means any domestic operation conducted
with--
(1) An airplane designed for at least 31 passenger seats (as
determined by the aircraft type certificate issued by a competent civil
aviation authority) at any land airport in any State of the United
States, the District of Columbia, or any territory or possession of the
United States; or
(2) An airplane designed for more than 9 passenger seats but less
than 31 passenger seats (as determined by the aircraft type certificate
issued by a competent civil aviation authority) at any land airport in
any State of the United States (except Alaska), the District of
Columbia, or any territory or possession of the United States.
Flag type operation means any flag operation conducted with--
(1) An airplane designed for at least 31 passenger seats (as
determined by the aircraft type certificate issued by a competent civil
aviation authority) at any land airport in any State of the United
States, the District of Columbia, or any territory or possession of the
United States; or
(2) An airplane designed for more than 9 passenger seats but less
than 31 passenger seats (as determined by the aircraft type certificate
issued by a competent civil aviation authority) at any land airport in
any State of the United States (except Alaska), the District of
Columbia, or any territory or possession of the United States.
Supplemental type operation means any supplemental operation
(except an all-cargo operation) conducted with an airplane designed for
at least 31 passenger seats (as determined by the aircraft type
certificate issued by a competent civil aviation authority) at any land
airport in any State of the United States, the District of Columbia, or
any territory or possession of the United States.
United States means the States of the United States, the District
of Columbia, and the territories and possessions of the United States.
Note: Special Statutory Requirement to Operate to or From a Part
139 Airport. Each air carrier that provides--in an aircraft (e.g.,
airplane, rotorcraft, etc.) designed for more than 9 passenger
seats--regularly scheduled charter air transportation for which the
public is provided in advance a schedule containing the departure
location, departure time, and arrival location of the flight must
operate to and from an airport certificated under part 139 of this
chapter in accordance with 49 U.S.C. 41104(b). That statutory
provision contains stand-alone requirements for such air carriers
and special exceptions for operations in Alaska and outside the
United States. Nothing in Sec. 121.590 exempts the air carriers
described in this note from the requirements of 49 U.S.C. 41104(b).
Certain operations by air carriers that conduct public charter
operations under 14 CFR part 380 are covered by the statutory
requirements to operate to and from part 139 airports. See 49 U.S.C.
41104(b).
0
3. Revise part 139 to read as follows:
PART 139--CERTIFICATION OF AIRPORTS
Subpart A--General
Sec.
139.1 Applicability.
139.3 Delegation of authority.
139.5 Definitions.
139.7 Methods and procedures for compliance.
Subpart B--Certification
139.101 General requirements.
139.103 Application for certificate.
139.105 Inspection authority.
139.107 Issuance of certificate.
139.109 Duration of certificate.
[[Page 6425]]
139.111 Exemptions.
139.113 Deviations.
Subpart C--Airport Certification Manual
139.201 General requirements.
139.203 Contents of Airport Certification Manual.
139.205 Amendment of Airport Certification Manual.
Subpart D--Operations
139.301 Records.
139.303 Personnel.
139.305 Paved areas.
139.307 Unpaved areas.
139.309 Safety areas.
139.311 Marking, signs, and lighting.
139.313 Snow and ice control.
139.315 Aircraft rescue and firefighting: Index determination.
139.317 Aircraft rescue and firefighting: Equipment and agents.
139.319 Aircraft rescue and firefighting: Operational requirements.
139.321 Handling and storing of hazardous substances and materials.
139.323 Traffic and wind direction indicators.
139.325 Airport emergency plan.
139.327 Self-inspection program.
139.329 Pedestrians and Ground Vehicles.
139.331 Obstructions.
139.333 Protection of NAVAIDS.
139.335 Public protection.
139.337 Wildlife hazard management.
139.339 Airport condition reporting.
139.341 Identifying, marking, and lighting construction and other
unserviceable areas.
139.343 Noncomplying conditions.
Authority: 49 U.S.C. 106(g), 40113, 44701-44706, 44709, 44719
Subpart A--General
Sec. 139.1 Applicability.
(a) This part prescribes rules governing the certification and
operation of airports in any State of the United States, the District
of Columbia, or any territory or possession of the United States
serving any--
(1) Scheduled passenger-carrying operations of an air carrier
operating aircraft designed for more than 9 passenger seats, as
determined by the aircraft type certificate issued by a competent civil
aviation authority; and
(2) Unscheduled passenger-carrying operations of an air carrier
operating aircraft designed for at least 31 passenger seats, as
determined by the aircraft type certificate issued by a competent civil
aviation authority.
(b) This part applies to those portions of a joint-use or shared-
use airport that are within the authority of a person serving
passenger-carrying operations defined in paragraphs (a)(1) and (a)(2)
of this section.
(c) This part does not apply to--
(1) Airports serving scheduled air carrier operations only by
reason of being designated as an alternate airport;
(2) Airports operated by the United States;
(3) Airports located in the State of Alaska that only serve
scheduled operations of small air carrier aircraft and do not serve
scheduled or unscheduled operations of large air carrier aircraft;
(4) Airports located in the State of Alaska during periods of time
when not serving operations of large air carrier aircraft; or
(5) Heliports.
Sec. 139.3 Delegation of authority.
The authority of the Administrator to issue, deny, and revoke
Airport Operating Certificates is delegated to the Associate
Administrator for Airports, Director of Airport Safety and Standards,
and Regional Airports Division Managers.
Sec. 139.5 Definitions.
The following are definitions of terms used in this part:
AFFF means aqueous film forming foam agent.
Air carrier aircraft means an aircraft that is being operated by an
air carrier and is categorized as either a large air carrier aircraft
if designed for at least 31 passenger seats or a small air carrier
aircraft if designed for more than 9 passenger seats but less than 31
passenger seats, as determined by the aircraft type certificate issued
by a competent civil aviation authority.
Air carrier operation means the takeoff or landing of an air
carrier aircraft and includes the period of time from 15 minutes before
until 15 minutes after the takeoff or landing.
Airport means an area of land or other hard surface, excluding
water, that is used or intended to be used for the landing and takeoff
of aircraft, including any buildings and facilities.
Airport Operating Certificate means a certificate, issued under
this part, for operation of a Class I, II, III, or IV airport.
Average daily departures means the average number of scheduled
departures per day of air carrier aircraft computed on the basis of the
busiest 3 consecutive calendar months of the immediately preceding 12
consecutive calendar months. However, if the average daily departures
are expected to increase, then ``average daily departures'' may be
determined by planned rather than current activity, in a manner
authorized by the Administrator.
Certificate holder means the holder of an Airport Operating
Certificate issued under this part.
Class I airport means an airport certificated to serve scheduled
operations of large air carrier aircraft that can also serve
unscheduled passenger operations of large air carrier aircraft and/or
scheduled operations of small air carrier aircraft.
Class II airport means an airport certificated to serve scheduled
operations of small air carrier aircraft and the unscheduled passenger
operations of large air carrier aircraft. A Class II airport cannot
serve scheduled large air carrier aircraft.
Class III airport means an airport certificated to serve scheduled
operations of small air carrier aircraft. A Class III airport cannot
serve scheduled or unscheduled large air carrier aircraft.
Class IV airport means an airport certificated to serve unscheduled
passenger operations of large air carrier aircraft. A Class IV airport
cannot serve scheduled large or small air carrier aircraft.
Clean agent means an electrically nonconducting volatile or gaseous
fire extinguishing agent that does not leave a residue upon evaporation
and has been shown to provide extinguishing action equivalent to halon
1211 under test protocols of FAA Technical Report DOT/FAA/AR-95/87.
Heliport means an airport, or an area of an airport, used or
intended to be used for the landing and takeoff of helicopters.
Index means the type of aircraft rescue and firefighting equipment
and quantity of fire extinguishing agent that the certificate holder
must provide in accordance with Sec. 139.315.
Joint-use airport means an airport owned by the United States that
leases a portion of the airport to a person operating an airport
specified under Sec. 139.1(a).
Movement area means the runways, taxiways, and other areas of an
airport that are used for taxiing, takeoff, and landing of aircraft,
exclusive of loading ramps and aircraft parking areas.
Regional Airports Division Manager means the airports division
manager for the FAA region in which the airport is located.
Safety area means a defined area comprised of either a runway or
taxiway and the surrounding surfaces that is prepared or suitable for
reducing the risk of damage to aircraft in the event of an undershoot,
overshoot, or excursion from a runway or the unintentional departure
from a taxiway.
Scheduled operation means any common carriage passenger-carrying
operation for compensation or hire conducted by an air carrier for
which the air carrier or its representatives offers in advance the
departure location, departure time, and arrival location. It
[[Page 6426]]
does not include any operation that is conducted as a supplemental
operation under 14 CFR part 121 or public charter operations under 14
CFR part 380.
Shared-use airport means a U.S. Government-owned airport that is
co-located with an airport specified under Sec. 139.1(a) and at which
portions of the movement areas and safety areas are shared by both
parties.
Unscheduled operation means any common carriage passenger-carrying
operation for compensation or hire, using aircraft designed for at
least 31 passenger seats, conducted by an air carrier for which the
departure time, departure location, and arrival location are
specifically negotiated with the customer or the customer's
representative. It includes any passenger-carrying supplemental
operation conducted under 14 CFR part 121 and any passenger-carrying
public charter operation conducted under 14 CFR part 380.
Wildlife hazard means a potential for a damaging aircraft collision
with wildlife on or near an airport. As used in this part, ``wildlife''
includes feral animals and domestic animals out of the control of their
owners.
Note: Special Statutory Requirement To Operate to or From a Part
139 Airport. Each air carrier that provides--in an aircraft designed
for more than 9 passenger seats--regularly scheduled charter air
transportation for which the public is provided in advance a
schedule containing the departure location, departure time, and
arrival location of the flight must operate to and from an airport
certificated under part 139 of this chapter in accordance with 49
U.S.C. 41104(b). That statutory provision contains stand-alone
requirements for such air carriers and special exceptions for
operations in Alaska and outside the United States. Certain
operations by air carriers that conduct public charter operations
under 14 CFR part 380 are covered by the statutory requirements to
operate to and from part 139 airports. See 49 U.S.C. 41104(b).
Sec. 139.7 Methods and procedures for compliance.
Certificate holders shall comply with requirements prescribed by
subparts C and D of this part in a manner authorized by the
Administrator. FAA Advisory Circulars contain methods and procedures
for compliance with this part that are acceptable to the Administrator.
Subpart B--Certification
Sec. 139.101 General requirements.
(a) Except as otherwise authorized by the Administrator, no person
may operate an airport specified under Sec. 139.1 of this part without
an Airport Operating Certificate or in violation of that certificate,
the applicable provisions, or the approved Airport Certification
Manual.
(b) Each certificate holder shall adopt and comply with an Airport
Certification Manual as required under Sec. 139.203.
(c) Persons required to have an Airport Operating Certificate under
this part shall submit their Airport Certification Manual to the FAA
for approval, in accordance with the following schedule:
(1) Class I airports--6 months after June 9, 2004.
(2) Class II, III, and IV airports--12 months after June 9, 2004.
Sec. 139.103 Application for certificate.
Each applicant for an Airport Operating Certificate shall--
(a) Prepare and submit an application, in a form and in the manner
prescribed by the Administrator, to the Regional Airports Division
Manager.
(b) Submit with the application, two copies of an Airport
Certification Manual prepared in accordance with subpart C of this
part.
Sec. 139.105 Inspection authority.
Each applicant for, or holder of, an Airport Operating Certificate
shall allow the Administrator to make any inspections, including
unannounced inspections, or tests to determine compliance with 49
U.S.C. 44706 and the requirements of this part.
Sec. 139.107 Issuance of certificate.
An applicant for an Airport Operating Certificate is entitled to a
certificate if--
(a) The applicant provides written documentation that air carrier
service will begin on a date certain.
(b) The applicant meets the provisions of Sec. 139.103.
(c) The Administrator, after investigation, finds the applicant is
properly and adequately equipped and able to provide a safe airport
operating environment in accordance with--
(1) Any limitation that the Administrator finds necessary to ensure
safety in air transportation.
(2) The requirements of the Airport Certification Manual, as
specified under Sec. 139.203.
(3) Any other provisions of this part that the Administrator finds
necessary to ensure safety in air transportation.
(d) The Administrator approves the Airport Certification Manual.
Sec. 139.109 Duration of certificate.
An Airport Operating Certificate issued under this part is
effective until the certificate holder surrenders it or the certificate
is suspended or revoked by the Administrator.
Sec. 139.111 Exemptions.
(a) An applicant or a certificate holder may petition the
Administrator under 14 CFR part 11, General Rulemaking Procedures, of
this chapter for an exemption from any requirement of this part.
(b) Under 49 U.S.C. 44706(c), the Administrator may exempt an
applicant or a certificate holder that enplanes annually less than one-
quarter of 1 percent of the total number of passengers enplaned at all
air carrier airports from all, or part, of the aircraft rescue and
firefighting equipment requirements of this part on the grounds that
compliance with those requirements is, or would be, unreasonably
costly, burdensome, or impractical.
(1) Each petition filed under this paragraph must--
(i) Be submitted in writing at least 120 days before the proposed
effective date of the exemption;
(ii) Set forth the text of Sec.Sec. 139.317 or 139.319 from which
the exemption is sought;
(iii) Explain the interest of the certificate holder in the action
requested, including the nature and extent of relief sought; and
(iv) Contain information, views, or arguments that demonstrate that
the requirements of Sec.Sec. 139.317 or 139.319 would be unreasonably
costly, burdensome, or impractical.
(2) Information, views, or arguments provided under paragraph
(b)(1) of this section shall include the following information
pertaining to the airport for which the Airport Operating Certificate
is held:
(i) An itemized cost to comply with the requirement from which the
exemption is sought;
(ii) Current staffing levels;
(iii) The current annual financial report, such as a single audit
report or FAA Form 5100-127, Operating and Financial Summary;
(iv) Annual passenger enplanement data for the previous 12 calendar
months;
(v) The type and frequency of air carrier operations served;
(vi) A history of air carrier service;
(vii) Anticipated changes to air carrier service;
(c) Each petition filed under this section must be submitted in
duplicate to the--
(1) Regional Airports Division Manager and
(2) U.S. Department of Transportation's Docket Management System,
as specified under 14 CFR part 11.
[[Page 6427]]
Sec. 139.113 Deviations.
In emergency conditions requiring immediate action for the
protection of life or property, the certificate holder may deviate from
any requirement of subpart D of this part, or the Airport Certification
Manual, to the extent required to meet that emergency. Each certificate
holder who deviates from a requirement under this section shall, within
14 days after the emergency, notify the Regional Airports Division
Manager of the nature, extent, and duration of the deviation. When
requested by the Regional Airports Division Manager, the certificate
holder shall provide this notification in writing.
Subpart C--Airport Certification Manual
Sec. 139.201 General requirements.
(a) No person may operate an airport subject to this part unless
that person adopts and complies with an Airport Certification Manual,
as required under this part, that--
(1) Has been approved by the Administrator;
(2) Contains only those items authorized by the Administrator;
(3) Is in printed form and signed by the certificate holder
acknowledging the certificate holder's responsibility to operate the
airport in compliance with the Airport Certification Manual approved by
the Administrator; and
(4) Is in a form that is easy to revise and organized in a manner
helpful to the preparation, review, and approval processes, including a
revision log. In addition, each page or attachment must include the
date of the Administrator's initial approval or approval of the latest
revision.
(b) Each holder of an Airport Operating Certificate shall--
(1) Keep its Airport Certification Manual current at all times;
(2) Maintain at least one complete and current copy of its approved
Airport Certification Manual on the airport, which will be available
for inspection by the Administrator; and
(3) Furnish the applicable portions of the approved Airport
Certification Manual to airport personnel responsible for its
implementation.
(c) Each certificate holder shall ensure that the Regional Airports
Division Manager is provided a complete copy of its most current
approved Airport Certification Manual, as specified under paragraph
(b)(2) of this section, including any amendments approved under Sec.
139.205.
(d) FAA Advisory Circulars contain methods and procedures for the
development of Airport Certification Manuals that are acceptable to the
Administrator.
Sec. 139.203 Contents of Airport Certification Manual.
(a) Except as otherwise authorized by the Administrator, each
certificate holder shall include in the Airport Certification Manual a
description of operating procedures, facilities and equipment,
responsibility assignments, and any other information needed by
personnel concerned with operating the airport in order to comply with
applicable provisions of subpart D of this part and paragraph (b) of
this section.
(b) Except as otherwise authorized by the Administrator, the
certificate holder shall include in the Airport Certification Manual
the following elements, as appropriate for its class:
Required Airport Certification Manual Elements
----------------------------------------------------------------------------------------------------------------
Airport certificate class
Manual elements -------------------------------------------------------------------
Class I Class II Class III Class IV
----------------------------------------------------------------------------------------------------------------
1. Lines of succession of airport X X X X
operational responsibility.................
2. Each current exemption issued to the X X X X
airport from the requirements of this part.
3. Any limitations imposed by the X X X X
Administrator..............................
4. A grid map or other means of identifying X X X X
locations and terrain features on and
around the airport that are significant to
emergency operations.......................
5. The location of each obstruction required X X X X
to be lighted or marked within the
airport's area of authority................
6. A description of each movement area X X X X
available for air carriers and its safety
areas, and each road described in Sec.
139.319(k) that serves it..................
7. Procedures for avoidance of interruption X X X
or failure during construction work of
utilities serving facilities or NAVAIDS
that support air carrier operations........
8. A description of the system for X X X X
maintaining records, as required under Sec.
139.301....................................
9. A description of personnel training, as X X X X
required under Sec. 139.303................
10. Procedures for maintaining the paved X X X X
areas, as required under Sec. 139.305......
11. Procedures for maintaining the unpaved X X X X
areas, as required under Sec. 139.307......
12. Procedures for maintaining the safety X X X X
areas, as required under Sec. 139.309......
13. A plan showing the runway and taxiway X X X X
identification system, including the
location and inscription of signs, runway
markings, and holding position markings, as
required under Sec. 139.311................
14. A description of, and procedures for X X X X
maintaining, the marking, signs, and
lighting systems, as required under Sec.
139.311....................................
15. A snow and ice control plan, as required X X X
under Sec. 139.313.........................
16. A description of the facilities, X X X X
equipment, personnel, and procedures for
meeting the aircraft rescue and
firefighting requirements, in accordance
with Sec.Sec. 139.315, 139.317 and 139.319.
17. A description of any approved exemption X X X X
to aircraft rescue and firefighting
requirements, as authorized under Sec.
139.111....................................
[[Page 6428]]
18. Procedures for protecting persons and X X X X
property during the storing, dispensing,
and handling of fuel and other hazardous
substances and materials, as required under
Sec. 139.321...............................
19. A description of, and procedures for X X X X
maintaining, the traffic and wind direction
indicators, as required under Sec. 139.323.
20. An emergency plan as required under Sec. X X X X
139.325....................................
21. Procedures for conducting the self- X X X X
inspection program, as required under Sec.
139.327....................................
22. Procedures for controlling pedestrians X X X
and ground vehicles in movement areas and
safety areas, as required under Sec.
139.329....................................
23. Procedures for obstruction removal, X X X
marking, or lighting, as required under
Sec. 139.331...............................
24. Procedures for protection of NAVAIDS, as X X X
required under Sec. 139.333................
25. A description of public protection, as X X X
required under Sec. 139.335................
26. Procedures for wildlife hazard X X X
management, as required under Sec. 139.337.
27. Procedures for airport condition X X X X
reporting, as required under Sec. 139.339..
28. Procedures for identifying, marking, and X X X
lighting construction and other
unserviceable areas, as required under Sec.
139.341....................................
29. Any other item that the Administrator X X X X
finds is necessary to ensure safety in air
transportation.............................
----------------------------------------------------------------------------------------------------------------
Sec. 139.205 Amendment of Airport Certification Manual.
(a) Under Sec. 139.3, the Regional Airports Division Manager may
amend any Airport Certification Manual approved under this part,
either--
(1) Upon application by the certificate holder or
(2) On the Regional Airports Division Manager's own initiative, if
the Regional Airports Division Manager determines that safety in air
transportation requires the amendment.
(b) A certificate holder shall submit in writing a proposed
amendment to its Airport Certification Manual to the Regional Airports
Division Manager at least 30 days before the proposed effective date of
the amendment, unless a shorter filing period is allowed by the
Regional Airports Division Manager.
(c) At any time within 30 days after receiving a notice of refusal
to approve the application for amendment, the certificate holder may
petition the Associate Administrator for Airports to reconsider the
refusal to amend.
(d) In the case of amendments initiated by the FAA, the Regional
Airports Division Manager notifies the certificate holder of the
proposed amendment, in writing, fixing a reasonable period (but not
less than 7 days) within which the certificate holder may submit
written information, views, and arguments on the amendment. After
considering all relevant material presented, the Regional Airports
Division Manager notifies the certificate holder within 30 days of any
amendment adopted or rescinds the notice. The amendment becomes
effective not less than 30 days after the certificate holder receives
notice of it, except that, prior to the effective date, the certificate
holder may petition the Associate Administrator for Airports to
reconsider the amendment, in which case its effective date is stayed
pending a decision by the Associate Administrator for Airports.
(e) Notwithstanding the provisions of paragraph (d) of this
section, if the Regional Airports Division Manager finds there is an
emergency requiring immediate action with respect to safety in air
transportation, the Regional Airports Division Manager may issue an
amendment, effective without stay on the date the certificate holder
receives notice of it. In such a case, the Regional Airports Division
Manager incorporates the finding of the emergency and a brief statement
of the reasons for the finding in the notice of the amendment. Within
30 days after the issuance of such an emergency amendment, the
certificate holder may petition the Associate Administrator for
Airports to reconsider either the finding of an emergency, the
amendment itself, or both. This petition does not automatically stay
the effectiveness of the emergency amendment.
Subpart D--Operations
Sec. 139.301 Records.
In a manner authorized by the Administrator, each certificate
holder shall--
(a) Furnish upon request by the Administrator all records required
to be maintained under this part.
(b) Maintain records required under this part as follows:
(1) Personnel training. Twenty-four consecutive calendar months for
personnel training records, as required under Sec.Sec. 139.303 and
139.327.
(2) Emergency personnel training. Twenty-four consecutive calendar
months for aircraft rescue and firefighting and emergency medical
service personnel training records, as required under Sec. 139.319.
(3) Airport fueling agent inspection. Twelve consecutive calendar
months for records of inspection of airport fueling agents, as required
under Sec. 139.321.
(4) Fueling personnel training. Twelve consecutive calendar months
for training records of fueling personnel, as required under Sec.
139.321.
(5) Self-inspection. Twelve consecutive calendar months for self-
inspection records, as required under Sec. 139.327.
(6) Movement areas and safety areas training. Twenty-four
consecutive calendar months for records of training given to
pedestrians and ground vehicle operators with access to movement areas
and safety areas, as required under Sec. 139.329.
(7) Accident and incident. Twelve consecutive calendar months for
each accident or incident in movement areas and safety areas involving
an air carrier aircraft and/or ground vehicle, as required under Sec.
139.329.
(8) Airport condition. Twelve consecutive calendar months for
records of airport condition information dissemination, as required
under Sec. 139.339.
[[Page 6429]]
(c) Make and maintain any additional records required by the
Administrator, this part, and the Airport Certification Manual.
Sec. 139.303 Personnel.
In a manner authorized by the Administrator, each certificate
holder shall--
(a) Provide sufficient and qualified personnel to comply with the
requirements of its Airport Certification Manual and the requirements
of this part.
(b) Equip personnel with sufficient resources needed to comply with
the requirements of this part.
(c) Train all personnel who access movement areas and safety areas
and perform duties in compliance with the requirements of the Airport
Certification Manual and the requirements of this part. This training
shall be completed prior to the initial performance of such duties and
at least once every 12 consecutive calendar months. The curriculum for
initial and recurrent training shall include at least the following
areas:
(1) Airport familiarization, including airport marking, lighting,
and signs system.
(2) Procedures for access to, and operation in, movement areas and
safety areas, as specified under Sec. 139.329.
(3) Airport communications, including radio communication between
the air traffic control tower and personnel, use of the common traffic
advisory frequency if there is no air traffic control tower or the
tower is not in operation, and procedures for reporting unsafe airport
conditions.
(4) Duties required under the Airport Certification Manual and the
requirements of this part.
(5) Any additional subject areas required under Sec.Sec. 139.319,
139.321, 139.327, 139.329, 139.337, and 139.339, as appropriate.
(d) Make a record of all training completed after June 9, 2004 by
each individual in compliance with this section that includes, at a
minimum, a description and date of training received. Such records
shall be maintained for 24 consecutive calendar months after completion
of training.
(e) As appropriate, comply with the following training requirements
of this part:
(i) Sec. 139.319, Aircraft rescue and firefighting: Operational
requirements;
(ii) Sec. 139.321, Handling and storage of hazardous substances and
materials;
(iii) Sec. 139.327, Self-inspection program;
(iv) Sec. 139.329, Pedestrians and Ground Vehicles;
(v) Sec. 139.337, Wildlife hazard management; and
(vi) Sec. 139.339, Airport condition reporting.
(f) Use an independent organization, or designee, to comply with
the requirements of its Airport Certification Manual and the
requirements of this part only if--
(1) Such an arrangement is authorized by the Administrator;
(2) A description of responsibilities and duties that will be
assumed by an independent organization or designee is specified in the
Airport Certification Manual; and
(3) The independent organization or designee prepares records
required under this part in sufficient detail to assure the certificate
holder and the Administrator of adequate compliance with the Airport
Certification Manual and the requirements of this part.
Sec. 139.305 Paved areas.
(a) In a manner authorized by the Administrator, each certificate
holder shall maintain, and promptly repair the pavement of, each
runway, taxiway, loading ramp, and parking area on the airport that is
available for air carrier use as follows:
(1) The pavement edges shall not exceed 3 inches difference in
elevation between abutting pavement sections and between pavement and
abutting areas.
(2) The pavement shall have no hole exceeding 3 inches in depth nor
any hole the slope of which from any point in the hole to the nearest
point at the lip of the hole is 45 degrees or greater, as measured from
the pavement surface plane, unless, in either case, the entire area of
the hole can be covered by a 5-inch diameter circle.
(3) The pavement shall be free of cracks and surface variations
that could impair directional control of air carrier aircraft. Any
pavement crack or surface deterioration that produces loose aggregate
or other contaminants shall be immediately repaired.
(4) Except as provided in paragraph (b) of this section, mud, dirt,
sand, loose aggregate, debris, foreign objects, rubber deposits, and
other contaminants shall be removed promptly and as completely as
practicable.
(5) Except as provided in paragraph (b) of this section, any
chemical solvent that is used to clean any pavement area shall be
removed as soon as possible, consistent with the instructions of the
manufacturer of the solvent.
(6) The pavement shall be sufficiently drained and free of
depressions to prevent ponding that obscures markings or impairs safe
aircraft operations.
(b) Paragraphs (a)(4) and (a)(5) of this section do not apply to
snow and ice accumulations and their control, including the associated
use of materials, such as sand and deicing solutions.
(c) FAA Advisory Circulars contain methods and procedures for the
maintenance and configuration of paved areas that are acceptable to the
Administrator.
Sec. 139.307 Unpaved areas.
(a) In a manner authorized by the Administrator, each certificate
holder shall maintain and promptly repair the surface of each gravel,
turf, or other unpaved runway, taxiway, or loading ramp and parking
area on the airport that is available for air carrier use as follows:
(1) No slope from the edge of the full-strength surfaces downward
to the existing terrain shall be steeper than 2:1.
(2) The full-strength surfaces shall have adequate crown or grade
to assure sufficient drainage to prevent ponding.
(3) The full-strength surfaces shall be adequately compacted and
sufficiently stable to prevent rutting by aircraft or the loosening or
build-up of surface material, which could impair directional control of
aircraft or drainage.
(4) The full-strength surfaces must have no holes or depressions
that exceed 3 inches in depth and are of a breadth capable of impairing
directional control or causing damage to an aircraft.
(5) Debris and foreign objects shall be promptly removed from the
surface.
(b) FAA Advisory Circulars contain methods and procedures for the
maintenance and configuration of unpaved areas that are acceptable to
the Administrator.
Sec. 139.309 Safety areas.
(a) In a manner authorized by the Administrator, each certificate
holder shall provide and maintain, for each runway and taxiway that is
available for air carrier use, a safety area of at least the dimensions
that--
(1) Existed on December 31, 1987, if the runway or taxiway had a
safety area on December 31, 1987, and if no reconstruction or
significant expansion of the runway or taxiway was begun on or after
January 1, 1988; or
(2) Are authorized by the Administrator at the time the
construction, reconstruction, or expansion began if construction,
reconstruction, or significant expansion of the runway or taxiway began
on or after January 1, 1988.
(b) Each certificate holder shall maintain its safety areas as
follows:
(1) Each safety area shall be cleared and graded and have no
potentially
[[Page 6430]]
hazardous ruts, humps, depressions, or other surface variations.
(2) Each safety area shall be drained by grading or storm sewers to
prevent water accumulation.
(3) Each safety area shall be capable under dry conditions of
supporting snow removal and aircraft rescue and firefighting equipment
and of supporting the occasional passage of aircraft without causing
major damage to the aircraft.
(4) No objects may be located in any safety area, except for
objects that need to be located in a safety area because of their
function. These objects shall be constructed, to the extent practical,
on frangibly mounted structures of the lowest practical height, with
the frangible point no higher than 3 inches above grade.
(c) FAA Advisory Circulars contain methods and procedures for the
configuration and maintenance of safety areas acceptable to the
Administrator.
Sec. 139.311 Marking, signs, and lighting.
(a) Marking. Each certificate holder shall provide and maintain
marking systems for air carrier operations on the airport that are
authorized by the Administrator and consist of at least the following:
(1) Runway markings meeting the specifications for takeoff and
landing minimums for each runway.
(2) A taxiway centerline.
(3) Taxiway edge markings, as appropriate.
(4) Holding position markings.
(5) Instrument landing system (ILS) critical area markings.
(b) Signs. (1) Each certificate holder shall provide and maintain
sign systems for air carrier operations on the airport that are
authorized by the Administrator and consist of at least the following:
(i) Signs identifying taxiing routes on the movement area.
(ii) Holding position signs.
(iii) Instrument landing system (ILS) critical area signs.
(2) Unless otherwise authorized by the Administrator, the signs
required by paragraph (b)(1) of this section shall be internally
illuminated at each Class I, II, and IV airport.
(3) Unless otherwise authorized by the Administrator, the signs
required by paragraphs (b)(1)(ii) and (b)(1)(iii) of this section shall
be internally illuminated at each Class III airport.
(c) Lighting. Each certificate holder shall provide and maintain
lighting systems for air carrier operations when the airport is open at
night, during conditions below visual flight rules (VFR) minimums, or
in Alaska, during periods in which a prominent unlighted object cannot
be seen from a distance of 3 statute miles or the sun is more than six
degrees below the horizon. These lighting systems shall be authorized
by the Administrator and consist of at least the following:
(1) Runway lighting that meets the specifications for takeoff and
landing minimums, as authorized by the Administrator, for each runway.
(2) One of the following taxiway lighting systems:
(i) Centerline lights.
(ii) Centerline reflectors.
(iii) Edge lights.
(iv) Edge reflectors.
(3) An airport beacon.
(4) Approach lighting that meets the specifications for takeoff and
landing minimums, as authorized by the Administrator, for each runway,
unless provided and/or maintained by an entity other than the
certificate holder.
(5) Obstruction marking and lighting, as appropriate, on each
object within its authority that has been determined by the FAA to be
an obstruction.
(d) Maintenance. Each certificate holder shall properly maintain
each marking, sign, or lighting system installed and operated on the
airport. As used in this section, to ``properly maintain'' includes
cleaning, replacing, or repairing any faded, missing, or nonfunctional
item; keeping each item unobscured and clearly visible; and ensuring
that each item provides an accurate reference to the user.
(e) Lighting interference. Each certificate holder shall ensure
that all lighting on the airport, including that for aprons, vehicle
parking areas, roadways, fuel storage areas, and buildings, is
adequately adjusted or shielded to prevent interference with air
traffic control and aircraft operations.
(f) Standards. FAA Advisory Circulars contain methods and
procedures for the equipment, material, installation, and maintenance
of marking, sign, and lighting systems listed in this section that are
acceptable to the Administrator.
(g) Implementation. The sign systems required under paragraph
(b)(3) of this section shall be implemented by each holder of a Class
III Airport Operating Certificate not later than 36 consecutive
calendar months after June 9, 2004.
Sec. 139.313 Snow and ice control.
(a) As determined by the Administrator, each certificate holder
whose airport is located where snow and icing conditions occur shall
prepare, maintain, and carry out a snow and ice control plan in a
manner authorized by the Administrator.
(b) The snow and ice control plan required by this section shall
include, at a minimum, instructions and procedures for--
(1) Prompt removal or control, as completely as practical, of snow,
ice, and slush on each movement area;
(2) Positioning snow off the movement area surfaces so all air
carrier aircraft propellers, engine pods, rotors, and wing tips will
clear any snowdrift and snowbank as the aircraft's landing gear
traverses any portion of the movement area;
(3) Selection and application of authorized materials for snow and
ice control to ensure that they adhere to snow and ice sufficiently to
minimize engine ingestion;
(4) Timely commencement of snow and ice control operations; and
(5) Prompt notification, in accordance with Sec. 139.339, of all
air carriers using the airport when any portion of the movement area
normally available to them is less than satisfactorily cleared for safe
operation by their aircraft.
(c) FAA Advisory Circulars contain methods and procedures for snow
and ice control equipment, materials, and removal that are acceptable
to the Administrator.
Sec. 139.315 Aircraft rescue and firefighting: Index determination.
(a) An index is required by paragraph (c) of this section for each
certificate holder. The Index is determined by a combination of--
(1) The length of air carrier aircraft and
(2) Average daily departures of air carrier aircraft.
(b) For the purpose of Index determination, air carrier aircraft
lengths are grouped as follows:
(1) Index A includes aircraft less than 90 feet in length.
(2) Index B includes aircraft at least 90 feet but less than 126
feet in length.
(3) Index C includes aircraft at least 126 feet but less than 159
feet in length.
(4) Index D includes aircraft at least 159 feet but less than 200
feet in length.
(5) Index E includes aircraft at least 200 feet in length.
(c) Except as provided in Sec. 139.319(c), if there are five or
more average daily departures of air carrier aircraft in a single Index
group serving that airport, the longest aircraft with an average of
five or more daily departures determines the Index required for the
airport. When there are fewer than five average daily departures of the
longest air carrier aircraft serving the airport, the Index required
for the airport will be the next lower Index group than the Index group
prescribed for the longest aircraft.
(d) The minimum designated index shall be Index A.
[[Page 6431]]
(e) A holder of a Class III Airport Operating Certificate may
comply with this section by providing a level of safety comparable to
Index A that is approved by the Administrator. Such alternate
compliance must be described in the ACM and must include:
(i) Pre-arranged firefighting and emergency medical response
procedures, including agreements with responding services.
(ii) Means for alerting firefighting and emergency medical response
personnel.
(iii) Type of rescue and firefighting equipment to be provided.
(iv) Training of responding firefighting and emergency medical
personnel on airport familiarization and communications.
Sec. 139.317 Aircraft rescue and firefighting: Equipment and agents.
Unless otherwise authorized by the Administrator, the following
rescue and firefighting equipment and agents are the minimum required
for the Indexes referred to in Sec. 139.315:
(a) Index A. One vehicle carrying at least--
(1) 500 pounds of sodium-based dry chemical, halon 1211, or clean
agent; or
(2) 450 pounds of potassium-based dry chemical and water with a
commensurate quantity of AFFF to total 100 gallons for simultaneous dry
chemical and AFFF application.
(b) Index B. Either of the following:
(1) One vehicle carrying at least 500 pounds of sodium-based dry
chemical, halon 1211, or clean agent and 1,500 gallons of water and the
commensurate quantity of AFFF for foam production.
(2) Two vehicles--
(i) One vehicle carrying the extinguishing agents as specified in
paragraphs (a)(1) or (a)(2) of this section; and
(ii) One vehicle carrying an amount of water and the commensurate
quantity of AFFF so the total quantity of water for foam production
carried by both vehicles is at least 1,500 gallons.
(c) Index C. Either of the following:
(1) Three vehicles--
(i) One vehicle carrying the extinguishing agents as specified in
paragraph (a)(1) or (a)(2) of this section; and
(ii) Two vehicles carrying an amount of water and the commensurate
quantity of AFFF so the total quantity of water for foam production
carried by all three vehicles is at least 3,000 gallons.
(2) Two vehicles--
(i) One vehicle carrying the extinguishing agents as specified in
paragraph (b)(1) of this section; and
(ii) One vehicle carrying water and the commensurate quantity of
AFFF so the total quantity of water for foam production carried by both
vehicles is at least 3,000 gallons.
(d) Index D. Three vehicles--
(1) One vehicle carrying the extinguishing agents as specified in
paragraphs (a)(1) or (a)(2) of this section; and
(2) Two vehicles carrying an amount of water and the commensurate
quantity of AFFF so the total quantity of water for foam production
carried by all three vehicles is at least 4,000 gallons.
(e) Index E. Three vehicles--
(1) One vehicle carrying the extinguishing agents as specified in
paragraphs (a)(1) or (a)(2) of this section; and
(2) Two vehicles carrying an amount of water and the commensurate
quantity of AFFF so the total quantity of water for foam production
carried by all three vehicles is at least 6,000 gallons.
(f) Foam discharge capacity. Each aircraft rescue and firefighting
vehicle used to comply with Index B, C, D, or E requirements with a
capacity of at least 500 gallons of water for foam production shall be
equipped with a turret. Vehicle turret discharge capacity shall be as
follows:
(1) Each vehicle with a minimum-rated vehicle water tank capacity
of at least 500 gallons, but less than 2,000 gallons, shall have a
turret discharge rate of at least 500 gallons per minute, but not more
than 1,000 gallons per minute.
(2) Each vehicle with a minimum-rated vehicle water tank capacity
of at least 2,000 gallons shall have a turret discharge rate of at
least 600 gallons per minute, but not more than 1,200 gallons per
minute.
(g) Agent discharge capacity. Each aircraft rescue and firefighting
vehicle that is required to carry dry chemical, halon 1211, or clean
agent for compliance with the Index requirements of this section must
meet one of the following minimum discharge rates for the equipment
installed:
(1) Dry chemical, halon 1211, or clean agent through a hand line--5
pounds per second.
(2) Dry chemical, halon 1211, or clean agent through a turret--16
pounds per second.
(h) Extinguishing agent substitutions. Other extinguishing agent
substitutions authorized by the Administrator may be made in amounts
that provide equivalent firefighting capability.
(i) AFFF quantity requirements. In addition to the quantity of
water required, each vehicle required to carry AFFF shall carry AFFF in
an appropriate amount to mix with twice the water required to be
carried by the vehicle.
(j) Methods and procedures. FAA Advisory Circulars contain methods
and procedures for ARFF equipment and extinguishing agents that are
acceptable to the Administrator.
(k) Implementation. Each holder of a Class II, III, or IV Airport
Operating Certificate shall implement the requirements of this section
no later than 36 consecutive calendar months after .
Sec. 139.319 Aircraft rescue and firefighting: Operational
requirements.
(a) Rescue and firefighting capability. Except as provided in
paragraph (c) of this section, each certificate holder shall provide on
the airport, during air carrier operations at the airport, at least the
rescue and firefighting capability specified for the Index required by
Sec. 139.317 in a manner authorized by the Administrator.
(b) Increase in Index. Except as provided in paragraph (c) of this
section, if an increase in the average daily departures or the length
of air carrier aircraft results in an increase in the Index required by
paragraph (a) of this section, the certificate holder shall comply with
the increased requirements.
(c) Reduction in rescue and firefighting. During air carrier
operations with only aircraft shorter than the Index aircraft group
required by paragraph (a) of this section, the certificate holder may
reduce the rescue and firefighting to a lower level corresponding to
the Index group of the longest air carrier aircraft being operated.
(d) Procedures for reduction in capability. Any reduction in the
rescue and firefighting capability from the Index required by paragraph
(a) of this section, in accordance with paragraph (c) of this section,
shall be subject to the following conditions:
(1) Procedures for, and the persons having the authority to
implement, the reductions must be included in the Airport Certification
Manual.
(2) A system and procedures for recall of the full aircraft rescue
and firefighting capability must be included in the Airport
Certification Manual.
(3) The reductions may not be implemented unless notification to
air carriers is provided in the Airport/Facility Directory or Notices
to Airmen (NOTAM), as appropriate, and by direct notification of local
air carriers.
(e) Vehicle communications. Each vehicle required under Sec.
139.317 shall be equipped with two-way voice radio communications that
provide for contact with at least--
[[Page 6432]]
(1) All other required emergency vehicles;
(2) The air traffic control tower;
(3) The common traffic advisory frequency when an air traffic
control tower is not in operation or there is no air traffic control
tower, and
(4) Fire stations, as specified in the airport emergency plan.
(f) Vehicle marking and lighting. Each vehicle required under Sec.
139.317 shall--
(1) Have a flashing or rotating beacon and
(2) Be painted or marked in colors to enhance contrast with the
background environment and optimize daytime and nighttime visibility
and identification.
(g) Vehicle readiness. Each vehicle required under Sec. 139.317
shall be maintained as follows:
(1) The vehicle and its systems shall be maintained so as to be
operationally capable of performing the functions required by this
subpart during all air carrier operations.
(2) If the airport is located in a geographical area subject to
prolonged temperatures below 33 degrees Fahrenheit, the vehicles shall
be provided with cover or other means to ensure equipment operation and
discharge under freezing conditions.
(3) Any required vehicle that becomes inoperative to the extent
that it cannot perform as required by paragraph (h)(1) of this section
shall be replaced immediately with equipment having at least equal
capabilities. If replacement equipment is not available immediately,
the certificate holder shall so notify the Regional Airports Division
Manager and each air carrier using the airport in accordance with Sec.
139.339. If the required Index level of capability is not restored
within 48 hours, the airport operator, unless otherwise authorized by
the Administrator, shall limit air carrier operations on the airport to
those compatible with the Index corresponding to the remaining
operative rescue and firefighting equipment.
(h) Response requirements. (1) With the aircraft rescue and
firefighting equipment required under this part and the number of
trained personnel that will assure an effective operation, each
certificate holder shall--
(i) Respond to each emergency during periods of air carrier
operations; and
(ii) When requested by the Administrator, demonstrate compliance
with the response requirements specified in this section.
(2) The response required by paragraph (h)(1)(ii) of this section
shall achieve the following performance criteria:
(i) Within 3 minutes from the time of the alarm, at least one
required aircraft rescue and firefighting vehicle shall reach the
midpoint of the farthest runway serving air carrier aircraft from its
assigned post or reach any other specified point of comparable distance
on the movement area that is available to air carriers, and begin
application of extinguishing agent.
(ii) Within 4 minutes from the time of alarm, all other required
vehicles shall reach the point specified in paragraph (h)(2)(i) of this
section from their assigned posts and begin application of an
extinguishing agent.
(i) Personnel. Each certificate holder shall ensure the following:
(1) All rescue and firefighting personnel are equipped in a manner
authorized by the Administrator with protective clothing and equipment
needed to perform their duties.
(2) All rescue and firefighting personnel are properly trained to
perform their duties in a manner authorized by the Administrator. Such
personnel shall be trained prior to initial performance of rescue and
firefighting duties and receive recurrent instruction every 12
consecutive calendar months. The curriculum for initial and recurrent
training shall include at least the following areas:
(i) Airport familiarization, including airport signs, marking, and
lighting.
(ii) Aircraft familiarization.
(iii) Rescue and firefighting personnel safety.
(iv) Emergency communications systems on the airport, including
fire alarms.
(v) Use of the fire hoses, nozzles, turrets, and other appliances
required for compliance with this part.
(vi) Application of the types of extinguishing agents required for
compliance with this part.
(vii) Emergency aircraft evacuation assistance.
(viii) Firefighting operations.
(ix) Adapting and using structural rescue and firefighting
equipment for aircraft rescue and firefighting.
(x) Aircraft cargo hazards, including hazardous materials/dangerous
goods incidents.
(xi) Familiarization with firefighters' duties under the airport
emergency plan.
(3) All rescue and firefighting personnel shall participate in at
least one live-fire drill prior to initial performance of rescue and
firefighting duties and every 12 consecutive calendar months
thereafter.
(4) At least one individual, who has been trained and is current in
basic emergency medical services, is available during air carrier
operations. This individual shall be trained prior to initial
performance of emergency medical services. Training shall be at a
minimum 40 hours in length and cover the following topics:
(i) Bleeding.
(ii) Cardiopulmonary resuscitation.
(iii) Shock.
(iv) Primary patient survey.
(v) Injuries to the skull, spine, chest, and extremities.
(vi) Internal injuries.
(vii) Moving patients.
(viii) Burns.
(ix) Triage.
(5) A record is maintained of all training given to each individual
under this section for 24 consecutive calendar months after completion
of training. Such records shall include, at a minimum, a description
and date of training received.
(6) Sufficient rescue and firefighting personnel are available
during all air carrier operations to operate the vehicles, meet the
response times, and meet the minimum agent discharge rates required by
this part.
(7) Procedures and equipment are established and maintained for
alerting rescue and firefighting personnel by siren, alarm, or other
means authorized by the Administrator to any existing or impending
emergency requiring their assistance.
(j) Hazardous materials guidance. Each aircraft rescue and
firefighting vehicle responding to an emergency on the airport shall be
equipped with, or have available through a direct communications link,
the ``North American Emergency Response Guidebook'' published by the
U.S. Department of Transportation or similar response guidance to
hazardous materials/dangerous goods incidents. Information on obtaining
the ``North American Emergency Response Guidebook'' is available from
the Regional Airports Division Manager.
(k) Emergency access roads. Each certificate holder shall ensure
that roads designated for use as emergency access roads for aircraft
rescue and firefighting vehicles are maintained in a condition that
will support those vehicles during all-weather conditions.
(l) Methods and procedures. FAA Advisory Circulars contain methods
and procedures for aircraft rescue and firefighting and emergency
medical equipment and training that are acceptable to the
Administrator.
(m) Implementation. Each holder of a Class II, III, or IV Airport
Operating Certificate shall implement the requirements of this section
no later than 36 consecutive calendar months after June 9, 2004.
[[Page 6433]]
Sec. 139.321 Handling and storing of hazardous substances and
materials.
(a) Each certificate holder who acts as a cargo handling agent
shall establish and maintain procedures for the protection of persons
and property on the airport during the handling and storing of any
material regulated by the Hazardous Materials Regulations (49 CFR 171
through 180) that is, or is intended to be, transported by air. These
procedures shall provide for at least the following:
(1) Designated personnel to receive and handle hazardous substances
and materials.
(2) Assurance from the shipper that the cargo can be handled
safely, including any special handling procedures required for safety.
(3) Special areas for storage of hazardous materials while on the
airport.
(b) Each certificate holder shall establish and maintain standards
authorized by the Administrator for protecting against fire and
explosions in storing, dispensing, and otherwise handling fuel (other
than articles and materials that are, or are intended to be, aircraft
cargo) on the airport. These standards shall cover facilities,
procedures, and personnel training and shall address at least the
following:
(1) Bonding.
(2) Public protection.
(3) Control of access to storage areas.
(4) Fire safety in fuel farm and storage areas.
(5) Fire safety in mobile fuelers, fueling pits, and fueling
cabinets.
(6) Training of fueling personnel in fire safety in accordance with
paragraph (e) of this section. Such training at Class III airports must
be completed within 12 consecutive calendar months after June 9, 2004.
(7) The fire code of the public body having jurisdiction over the
airport.
(c) Each certificate holder shall, as a fueling agent, comply with,
and require all other fueling agents operating on the airport to comply
with, the standards established under paragraph (b) of this section and
shall perform reasonable surveillance of all fueling activities on the
airport with respect to those standards.
(d) Each certificate holder shall inspect the physical facilities
of each airport tenant fueling agent at least once every 3 consecutive
months for compliance with paragraph (b) of this section and maintain a
record of that inspection for at least 12 consecutive calendar months.
(e) The training required in paragraph (b)(6) of this section shall
include at least the following:
(1) At least one supervisor with each fueling agent shall have
completed an aviation fuel training course in fire safety that is
authorized by the Administrator. Such an individual shall be trained
prior to initial performance of duties, or enrolled in an authorized
aviation fuel training course that will be completed within 90 days of
initiating duties, and receive recurrent instruction at least every 24
consecutive calendar months.
(2) All other employees who fuel aircraft, accept fuel shipments,
or otherwise handle fuel shall receive at least initial on-the-job
training and recurrent instruction every 24 consecutive calendar months
in fire safety from the supervisor trained in accordance with paragraph
(e)(1) of this section.
(f) Each certificate holder shall obtain a written confirmation
once every 12 consecutive calendar months from each airport tenant
fueling agent that the training required by paragraph (e) of this
section has been accomplished. This written confirmation shall be
maintained for 12 consecutive calendar months.
(g) Unless otherwise authorized by the Administrator, each
certificate holder shall require each tenant fueling agent to take
immediate corrective action whenever the certificate holder becomes
aware of noncompliance with a standard required by paragraph (b) of
this section. The certificate holder shall notify the appropriate FAA
Regional Airports Division Manager immediately when noncompliance is
discovered and corrective action cannot be accomplished within a
reasonable period of time.
(h) FAA Advisory Circulars contain methods and procedures for the
handling and storage of hazardous substances and materials that are
acceptable to the Administrator.
Sec. 139.323 Traffic and wind direction indicators.
In a manner authorized by the Administrator, each certificate
holder shall provide and maintain the following on its airport:
(a) A wind cone that visually provides surface wind direction
information to pilots. For each runway available for air carrier use, a
supplemental wind cone must be installed at the end of the runway or at
least at one point visible to the pilot while on final approach and
prior to takeoff. If the airport is open for air carrier operations at
night, the wind direction indicators, including the required
supplemental indicators, must be lighted.
(b) For airports serving any air carrier operation when there is no
control tower operating, a segmented circle, a landing strip indicator
and a traffic pattern indicator must be installed around a wind cone
for each runway with a right-hand traffic pattern.
(c) FAA Advisory Circulars contain methods and procedures for the
installation, lighting, and maintenance of traffic and wind indicators
that are acceptable to the Administrator.
Sec. 139.325 Airport emergency plan.
(a) In a manner authorized by the Administrator, each certificate
holder shall develop and maintain an airport emergency plan designed to
minimize the possibility and extent of personal injury and property
damage on the airport in an emergency. The plan shall--
(1) Include procedures for prompt response to all emergencies
listed in paragraph (b) of this section, including a communications
network;
(2) Contain sufficient detail to provide adequate guidance to each
person who must implement these procedures; and
(3) To the extent practicable, provide for an emergency response
for the largest air carrier aircraft in the Index group required under
Sec. 139.315.
(b) The plan required by this section must contain instructions for
response to--
(1) Aircraft incidents and accidents;
(2) Bomb incidents, including designation of parking areas for the
aircraft involved;
(3) Structural fires;
(4) Fires at fuel farms or fuel storage areas;
(5) Natural disaster;
(6) Hazardous materials/dangerous goods incidents;
(7) Sabotage, hijack incidents, and other unlawful interference
with operations;
(8) Failure of power for movement area lighting; and
(9) Water rescue situations, as appropriate.
(c) The plan required by this section must address or include--
(1) To the extent practicable, provisions for medical services,
including transportation and medical assistance for the maximum number
of persons that can be carried on the largest air carrier aircraft that
the airport reasonably can be expected to serve;
(2) The name, location, telephone number, and emergency capability
of each hospital and other medical facility and the business address
and telephone number of medical personnel on the airport or in the
communities it serves who have agreed to provide medical assistance or
transportation;
[[Page 6434]]
(3) The name, location, and telephone number of each rescue squad,
ambulance service, military installation, and government agency on the
airport or in the communities it serves that agrees to provide medical
assistance or transportation;
(4) An inventory of surface vehicles and aircraft that the
facilities, agencies, and personnel included in the plan under
paragraphs (c)(2) and (3) of this section will provide to transport
injured and deceased persons to locations on the airport and in the
communities it serves;
(5) A list of each hangar or other building on the airport or in
the communities it serves that will be used to accommodate uninjured,
injured, and deceased persons;
(6) Plans for crowd control, including the name and location of
each safety or security agency that agrees to provide assistance for
the control of crowds in the event of an emergency on the airport; and
(7) Procedures for removing disabled aircraft, including, to the
extent practical, the name, location, and telephone numbers of agencies
with aircraft removal responsibilities or capabilities.
(d) The plan required by this section must provide for--
(1) The marshalling, transportation, and care of ambulatory injured
and uninjured accident survivors;
(2) The removal of disabled aircraft;
(3) Emergency alarm or notification systems; and
(4) Coordination of airport and control tower functions relating to
emergency actions, as appropriate.
(e) The plan required by this section shall contain procedures for
notifying the facilities, agencies, and personnel who have
responsibilities under the plan of the location of an aircraft
accident, the number of persons involved in that accident, or any other
information necessary to carry out their responsibilities, as soon as
that information becomes available.
(f) The plan required by this section shall contain provisions, to
the extent practicable, for the rescue of aircraft accident victims
from significant bodies of water or marsh lands adjacent to the airport
that are crossed by the approach and departure flight paths of air
carriers. A body of water or marshland is significant if the area
exceeds one-quarter square mile and cannot be traversed by conventional
land rescue vehicles. To the extent practicable, the plan shall provide
for rescue vehicles with a combined capacity for handling the maximum
number of persons that can be carried on board the largest air carrier
aircraft in the Index group required under Sec. 139.315.
(g) Each certificate holder shall--
(1) Coordinate the plan with law enforcement agencies, rescue and
firefighting agencies, medical personnel and organizations, the
principal tenants at the airport, and all other persons who have
responsibilities under the plan;
(2) To the extent practicable, provide for participation by all
facilities, agencies, and personnel specified in paragraph (g)(1) of
this section in the development of the plan;
(3) Ensure that all airport personnel having duties and
responsibilities under the plan are familiar with their assignments and
are properly trained; and
(4) At least once every 12 consecutive calendar months, review the
plan with all of the parties with whom the plan is coordinated, as
specified in paragraph (g)(1) of this section, to ensure that all
parties know their responsibilities and that all of the information in
the plan is current.
(h) Each holder of a Class I Airport Operating Certificate shall
hold a full-scale airport emergency plan exercise at least once every
36 consecutive calendar months.
(i) Each airport subject to applicable FAA and Transportation
Security Administration security regulations shall ensure that
instructions for response to paragraphs (b)(2) and (b)(7) of this
section in the airport emergency plan are consistent with its approved
airport security program.
(j) FAA Advisory Circulars contain methods and procedures for the
development of an airport emergency plan that are acceptable to the
Administrator.
(k) The emergency plan required by this section shall be submitted
by each holder of a Class II, III, or IV Airport Operating Certificate
no later than 24 consecutive calendar months after June 9, 2004.
Sec. 139.327 Self-inspection program.
(a) In a manner authorized by the Administrator, each certificate
holder shall inspect the airport to assure compliance with this subpart
according to the following schedule:
(1) Daily, except as otherwise required by the Airport
Certification Manual;
(2) When required by any unusual condition, such as construction
activities or meteorological conditions, that may affect safe air
carrier operations; and
(3) Immediately after an accident or incident.
(b) Each certificate holder shall provide the following:
(1) Equipment for use in conducting safety inspections of the
airport;
(2) Procedures, facilities, and equipment for reliable and rapid
dissemination of information between the certificate holder's personnel
and air carriers; and
(3) Procedures to ensure qualified personnel perform the
inspections. Such procedures shall ensure personnel are trained, as
specified under Sec. 139.303, and receive initial and recurrent
instruction every 12 consecutive calendar months in at least the
following areas:
(i) Airport familiarization, including airport signs, marking and
lighting.
(ii) Airport emergency plan.
(iii) Notice to Airmen (NOTAM) notification procedures.
(iv) Procedures for pedestrians and ground vehicles in movement
areas and safety areas.
(v) Discrepancy reporting procedures; and
(4) A reporting system to ensure prompt correction of unsafe
airport conditions noted during the inspection, including wildlife
strikes.
(c) Each certificate holder shall--
(1) Prepare, and maintain for at least 12 consecutive calendar
months, a record of each inspection prescribed by this section, showing
the conditions found and all corrective actions taken.
(2) Prepare records of all training given after June 9, 2004 to
each individual in compliance with this section that includes, at a
minimum, a description and date of training received. Such records
shall be maintained for 24 consecutive calendar months after completion
of training.
(d) FAA Advisory Circulars contain methods and procedures for the
conduct of airport self-inspections that are acceptable to the
Administrator.
Sec. 139.329 Pedestrians and ground vehicles.
In a manner authorized by the Administrator, each certificate
holder shall--
(a) Limit access to movement areas and safety areas only to those
pedestrians and ground vehicles necessary for airport operations;
(b) Establish and implement procedures for the safe and orderly
access to, and operation in, movement areas and safety areas by
pedestrians and ground vehicles, including provisions identifying the
consequences of noncompliance with the procedures by an employee,
tenant, or contractor;
(c) When an air traffic control tower is in operation, ensure that
each pedestrian and ground vehicle in movement areas or safety areas is
controlled by one of the following:
[[Page 6435]]
(1) Two-way radio communications between each pedestrian or vehicle
and the tower;
(2) An escort with two-way radio communications with the tower
accompanying any pedestrian or vehicle without a radio; or
(3) Measures authorized by the Administrator for controlling
pedestrians and vehicles, such as signs, signals, or guards, when it is
not operationally practical to have two-way radio communications
between the tower and the pedestrian, vehicle, or escort;
(d) When an air traffic control tower is not in operation, or there
is no air traffic control tower, provide adequate procedures to control
pedestrians and ground vehicles in movement areas or safety areas
through two-way radio communications or prearranged signs or signals;
(e) Ensure that each employee, tenant, or contractor is trained on
procedures required under paragraph (b) of this section, including
consequences of noncompliance, prior to moving on foot, or operating a
ground vehicle, in movement areas or safety areas; and
(f) Maintain the following records:
(1) A description and date of training completed after June 9, 2004
by each individual in compliance with this section. A record for each
individual shall be maintained for 24 consecutive months after the
termination of an individual's access to movement areas and safety
areas.
(2) A description and date of any accidents or incidents in the
movement areas and safety areas involving air carrier aircraft, a
ground vehicle or a pedestrian. Records of each accident or incident
occurring after the June 9, 2004 shall be maintained for 12 consecutive
calendar months from the date of the accident or incident.
Sec. 139.331 Obstructions.
In a manner authorized by the Administrator, each certificate
holder shall ensure that each object in each area within its authority
that has been determined by the FAA to be an obstruction is removed,
marked, or lighted, unless determined to be unnecessary by an FAA
aeronautical study. FAA Advisory Circulars contain methods and
procedures for the lighting of obstructions that are acceptable to the
Administrator.
Sec. 139.333 Protection of NAVAIDS.
In a manner authorized by the Administrator, each certificate
holder shall--
(a) Prevent the construction of facilities on its airport that, as
determined by the Administrator, would derogate the operation of an
electronic or visual NAVAID and air traffic control facilities on the
airport;
(b) Protect--or if the owner is other than the certificate holder,
assist in protecting--all NAVAIDS on its airport against vandalism and
theft; and
(c) Prevent, insofar as it is within the airport's authority,
interruption of visual and electronic signals of NAVAIDS.
Sec. 139.335 Public protection.
(a) In a manner authorized by the Administrator, each certificate
holder shall provide--
(1) Safeguards to prevent inadvertent entry to the movement area by
unauthorized persons or vehicles; and
(2) Reasonable protection of persons and property from aircraft
blast.
(b) Fencing that meets the requirements of applicable FAA and
Transportation Security Administration security regulations in areas
subject to these regulations is acceptable for meeting the requirements
of paragraph (a)(l) of this section.
Sec. 139.337 Wildlife hazard management.
(a) In accordance with its Airport Certification Manual and the
requirements of this section, each certificate holder shall take
immediate action to alleviate wildlife hazards whenever they are
detected.
(b) In a manner authorized by the Administrator, each certificate
holder shall ensure that a wildlife hazard assessment is conducted when
any of the following events occurs on or near the airport:
(1) An air carrier aircraft experiences multiple wildlife strikes;
(2) An air carrier aircraft experiences substantial damage from
striking wildlife. As used in this paragraph, substantial damage means
damage or structural failure incurred by an aircraft that adversely
affects the structural strength, performance, or flight characteristics
of the aircraft and that would normally require major repair or
replacement of the affected component;
(3) An air carrier aircraft experiences an engine ingestion of
wildlife; or
(4) Wildlife of a size, or in numbers, capable of causing an event
described in paragraphs (b)(1), (b)(2), or (b)(3) of this section is
observed to have access to any airport flight pattern or aircraft
movement area.
(c) The wildlife hazard assessment required in paragraph (b) of
this section shall be conducted by a wildlife damage management
biologist who has professional training and/or experience in wildlife
hazard management at airports or an individual working under direct
supervision of such an individual. The wildlife hazard assessment shall
contain at least the following:
(1) An analysis of the events or circumstances that prompted the
assessment.
(2) Identification of the wildlife species observed and their
numbers, locations, local movements, and daily and seasonal
occurrences.
(3) Identification and location of features on and near the airport
that attract wildlife.
(4) A description of wildlife hazards to air carrier operations.
(5) Recommended actions for reducing identified wildlife hazards to
air carrier operations.
(d) The wildlife hazard assessment required under paragraph (b) of
this section shall be submitted to the Administrator for approval and
determination of the need for a wildlife hazard management plan. In
reaching this determination, the Administrator will consider--
(1) The wildlife hazard assessment;
(2) Actions recommended in the wildlife hazard assessment to reduce
wildlife hazards;
(3) The aeronautical activity at the airport, including the
frequency and size of air carrier aircraft;
(4) The views of the certificate holder;
(5) The views of the airport users; and
(6) Any other known factors relating to the wildlife hazard of
which the Administrator is aware.
(e) When the Administrator determines that a wildlife hazard
management plan is needed, the certificate holder shall formulate and
implement a plan using the wildlife hazard assessment as a basis. The
plan shall--
(1) Provide measures to alleviate or eliminate wildlife hazards to
air carrier operations;
(2) Be submitted to, and approved by, the Administrator prior to
implementation; and
(3) As authorized by the Administrator, become a part of the
Airport Certification Manual.
(f) The plan shall include at least the following:
(1) A list of the individuals having authority and responsibility
for implementing each aspect of the plan.
(2) A list prioritizing the following actions identified in the
wildlife hazard assessment and target dates for their initiation and
completion:
(i) Wildlife population management;
(ii) Habitat modification; and
(iii) Land use changes.
[[Page 6436]]
(3) Requirements for and, where applicable, copies of local, State,
and Federal wildlife control permits.
(4) Identification of resources that the certificate holder will
provide to implement the plan.
(5) Procedures to be followed during air carrier operations that at
a minimum includes--
(i) Designation of personnel responsible for implementing the
procedures;
(ii) Provisions to conduct physical inspections of the aircraft
movement areas and other areas critical to successfully manage known
wildlife hazards before air carrier operations begin;
(iii) Wildlife hazard control measures; and
(iv) Ways to communicate effectively between personnel conducting
wildlife control or observing wildlife hazards and the air traffic
control tower.
(6) Procedures to review and evaluate the wildlife hazard
management plan every 12 consecutive months or following an event
described in paragraphs (b)(1), (b)(2), and (b)(3) of this section,
including:
(i) The plan's effectiveness in dealing with known wildlife hazards
on and in the airport's vicinity and
(ii) Aspects of the wildlife hazards described in the wildlife
hazard assessment that should be reevaluated.
(7) A training program conducted by a qualified wildlife damage
management biologist to provide airport personnel with the knowledge
and skills needed to successfully carry out the wildlife hazard
management plan required by paragraph (d) of this section.
(g) FAA Advisory Circulars contain methods and procedures for
wildlife hazard management at airports that are acceptable to the
Administrator.
Sec. 139.339 Airport condition reporting.
In a manner authorized by the Administrator, each certificate
holder shall--
(a) Provide for the collection and dissemination of airport
condition information to air carriers.
(b) In complying with paragraph (a) of this section, use the NOTAM
system, as appropriate, and other systems and procedures authorized by
the Administrator.
(c) In complying with paragraph (a) of this section, provide
information on the following airport conditions that may affect the
safe operations of air carriers:
(1) Construction or maintenance activity on movement areas, safety
areas, or loading ramps and parking areas.
(2) Surface irregularities on movement areas, safety areas, or
loading ramps and parking areas.
(3) Snow, ice, slush, or water on the movement area or loading
ramps and parking areas.
(4) Snow piled or drifted on or near movement areas contrary to
Sec. 139.313.
(5) Objects on the movement area or safety areas contrary to Sec.
139.309.
(6) Malfunction of any lighting system, holding position signs, or
ILS critical area signs required by Sec. 139.311.
(7) Unresolved wildlife hazards as identified in accordance with
Sec. 139.337.
(8) Nonavailability of any rescue and firefighting capability
required in Sec.Sec. 139.317 or 139.319.
(9) Any other condition as specified in the Airport Certification
Manual or that may otherwise adversely affect the safe operations of
air carriers.
(d) Each certificate holder shall prepare and keep, for at least 12
consecutive calendar months, a record of each dissemination of airport
condition information to air carriers prescribed by this section.
(e) FAA Advisory Circulars contain methods and procedures for using
the NOTAM system and the dissemination of airport information that are
acceptable to the Administrator.
Sec. 139.341 Identifying, marking, and lighting construction and other
unserviceable areas.
(a) In a manner authorized by the Administrator, each certificate
holder shall--
(1) Mark and, if appropriate, light in a manner authorized by the
Administrator--
(i) Each construction area and unserviceable area that is on or
adjacent to any movement area or any other area of the airport on which
air carrier aircraft may be operated;
(ii) Each item of construction equipment and each construction
roadway, which may affect the safe movement of aircraft on the airport;
and
(iii) Any area adjacent to a NAVAID that, if traversed, could cause
derogation of the signal or the failure of the NAVAID; and
(2) Provide procedures, such as a review of all appropriate utility
plans prior to construction, for avoiding damage to existing utilities,
cables, wires, conduits, pipelines, or other underground facilities.
(b) FAA Advisory Circulars contain methods and procedures for
identifying and marking construction areas that are acceptable to the
Administrator.
Sec. 139.343 Noncomplying conditions.
Unless otherwise authorized by the Administrator, whenever the
requirements of subpart D of this part cannot be met to the extent that
uncorrected unsafe conditions exist on the airport, the certificate
holder shall limit air carrier operations to those portions of the
airport not rendered unsafe by those conditions.
Issued in Washington, DC on January 28, 2004.
Marion C. Blakey,
Administrator.
[FR Doc. 04-2255 Filed 2-9-04; 8:45 am]
BILLING CODE 4910-13-P