Regulatory Alert: FAA Reopens Comment Period for Airport SMS Rulemaking
August 23, 2021
Today the Federal Aviation Administration (FAA) released a notice that the comment period for the rulemaking on airport safety management systems (SMS) will be reopened for 30 days, allowing airports and industry stakeholders to comment on the original supplemental notice of proposed rulemaking (SNPRM) that was released in 2016. As airports may recall, FAA published an SNPRM that would require any airport meeting certain criteria to have a SMS program, including airports that (a) are classified as a small, medium, or large hub; (b) serve international air traffic; or (c) have more than 100,000 total annual operations. 
In discussions with FAA and as emphasized in the notice released today, FAA is looking for any new information, data, or comments that have come to light since the close of the comment period on the SNPRM in 2016. AAAE understands that comments submitted in response to the 2016 SNPRM have already been adjudicated by the agency. Before moving forward with any final rule, FAA wants to determine if any new information has become available over the past five years. AAAE will be working closely with its members and our partners at ACI-NA to prepare any additional data or comments for FAA to consider at this stage. AAAE, airports, and industry stakeholders will have until September 23, 2021, to file a response. 
Background on Airport SMS Rulemaking. As many airports are aware, FAA's rulemaking on airport SMS has a very long history that is still unresolved. FAA proposed the original notice of proposed rulemaking (NPRM) in 2010. However, AAAE and the airport community raised major questions about the scope and cost, administrative burdens, and liability issues, among other things, associated with that proposal. In 2016, FAA published the SNPRM, which addressed many of those concerns, but also raised new issues to which AAAE and others responded. The airport industry has been waiting on a final rule or action since comments were submitted in response to the SNPRM. 
AAAE's Comments on Airport SMS SNPRM. In 2016, AAAE, in close coordination with our airport members and partners at ACI-NA, submitted lengthy comments to FAA in response to the SNPRM. Overall, while our members supported many of the principles behind SMS, we expressed concerns about some of the SNPRM provisions. AAAE's full comments can be found here. Highlights from AAAE's recommendations and comments include: 
• Applicability. FAA should create an exception for small international airports where international service is limited to general aviation operations and that do not otherwise qualify for the applicability of the rule. Airports that do not meet any of the other criteria and have no scheduled international flights should not be included. 
• Accountable Executive. The final rule should either explicitly allow the 'Accountable Executive' to delegate SMS oversight and supervisory responsibility to a specific named person within a tenant organization or by adopting a phase-in approach. 
• Training. Airport sponsors are concerned that the FAA has underestimated the number of personnel needing SMS training. FAA should provide an explanation for how it developed its estimates and guidance regarding the 3 to 10 employees or managers who will need comprehensive training. FAA should also make SMS-related material available to airport sponsors on its website and provide a list of required elements of training. 
• Data Protection. Airport sponsors remain concerned about data becoming available to the public under federal, state, and/or local open records laws. Allowing public disclosure of data collected as part of an airport sponsor's SMS could create a serious chilling effect on the effectiveness of the SMS program and on the entire self-reporting, safety culture. Because voluntary submissions of safety data are protected from FOIA by federal law, FAA should offer to receive any information that a sponsor desires to submit voluntarily. While the agency may have little or no need for such information, such an approach would allow sponsors to take advantage of the narrow FOIA exemption. 
• Implementation/Timeline. The proposed rule is unclear with respect to implementation timetables. There are several elements of the timeline about which the SNPRM is silent where sponsors may need guidance. Clear deadlines are important because SMS implementation could easily take 5-8 years for some elements within the program. 
• Phasing-In Components of SMS. FAA should phase in the actual implementation requirements for the three categories of airport sponsors required to implement SMS. This would include allowing an airport to justify a phase-in approach for training based on the characteristics of the particular airport environment, funding constraints, and other airport-specific concerns. 
• Non-Movement Areas. AAAE believes that SMS implementation in the non-movement area should be voluntary. However, if FAA is to apply airport SMS requirements to non-movement areas, it should explicitly exempt those areas under exclusive control of air carriers, subject to SMS for operators and those areas under military control. In addition, AAAE recommended that FAA explicitly address the jurisdictional issues that will occur in the non-movement areas. 
• Interoperability. FAA should explain how the implementation timeline for airport SMS fits within FAA's overall plan to implement SMS throughout the aviation industry. The interaction between Part 121 SMS and airport SMS presents complex practical and legal problems because of the different types of operators subject to Part 121 and Part 139. 
• Data Reporting. The creation of a national reporting database for voluntary reporting of SMS data is advisable. FAA should confirm that data submitted to the national reporting database voluntarily will not be subject to FOIA. FAA should also provide guidelines establishing minimum standards on the types of data that should be sent to FAA.  
• Safety Risk Management. Airport sponsors should have the flexibility to decide which hazards require the five-step process and which hazards simply need a more cursory review and mitigation. FAA should clarify that airport sponsors have the flexibility to decide what measures are appropriate. 
What's Next? FAA plans to publish the notice reopening the comment period on airport SMS in the Federal Register tomorrow, triggering an opportunity for AAAE and other stakeholders to respond on or before Thursday, September 23, 2021. AAAE will be working closely with its members, particularly the Operations, Safety, Planning and Emergency Management (OSPEM) and General Aviation Airports committees, and our partners at ACI-NA to prepare any additional comments for FAA to consider. Please reach out to Justin Barkowski if you would like to get involved in the comment development process. 
 
Today the Federal Aviation Administration (FAA) released a notice that the comment period for the rulemaking on airport safety management systems (SMS) will be reopened for 30 days, allowing airports and industry stakeholders to comment on the original supplemental notice of proposed rulemaking (SNPRM) that was released in 2016. As airports may recall, FAA published an SNPRM that would require any airport meeting certain criteria to have a SMS program, including airports that (a) are classified as a small, medium, or large hub; (b) serve international air traffic; or (c) have more than 100,000 total annual operations. 
In discussions with FAA and as emphasized in the notice released today, FAA is looking for any new information, data, or comments that have come to light since the close of the comment period on the SNPRM in 2016. AAAE understands that comments submitted in response to the 2016 SNPRM have already been adjudicated by the agency. Before moving forward with any final rule, FAA wants to determine if any new information has become available over the past five years. AAAE will be working closely with its members and our partners at ACI-NA to prepare any additional data or comments for FAA to consider at this stage. AAAE, airports, and industry stakeholders will have until September 23, 2021, to file a response. 
Background on Airport SMS Rulemaking. As many airports are aware, FAA's rulemaking on airport SMS has a very long history that is still unresolved. FAA proposed the original notice of proposed rulemaking (NPRM) in 2010. However, AAAE and the airport community raised major questions about the scope and cost, administrative burdens, and liability issues, among other things, associated with that proposal. In 2016, FAA published the SNPRM, which addressed many of those concerns, but also raised new issues to which AAAE and others responded. The airport industry has been waiting on a final rule or action since comments were submitted in response to the SNPRM. 
AAAE's Comments on Airport SMS SNPRM. In 2016, AAAE, in close coordination with our airport members and partners at ACI-NA, submitted lengthy comments to FAA in response to the SNPRM. Overall, while our members supported many of the principles behind SMS, we expressed concerns about some of the SNPRM provisions. AAAE's full comments can be found here. Highlights from AAAE's recommendations and comments include: 
• Applicability. FAA should create an exception for small international airports where international service is limited to general aviation operations and that do not otherwise qualify for the applicability of the rule. Airports that do not meet any of the other criteria and have no scheduled international flights should not be included. 
• Accountable Executive. The final rule should either explicitly allow the 'Accountable Executive' to delegate SMS oversight and supervisory responsibility to a specific named person within a tenant organization or by adopting a phase-in approach. 
• Training. Airport sponsors are concerned that the FAA has underestimated the number of personnel needing SMS training. FAA should provide an explanation for how it developed its estimates and guidance regarding the 3 to 10 employees or managers who will need comprehensive training. FAA should also make SMS-related material available to airport sponsors on its website and provide a list of required elements of training. 
• Data Protection. Airport sponsors remain concerned about data becoming available to the public under federal, state, and/or local open records laws. Allowing public disclosure of data collected as part of an airport sponsor's SMS could create a serious chilling effect on the effectiveness of the SMS program and on the entire self-reporting, safety culture. Because voluntary submissions of safety data are protected from FOIA by federal law, FAA should offer to receive any information that a sponsor desires to submit voluntarily. While the agency may have little or no need for such information, such an approach would allow sponsors to take advantage of the narrow FOIA exemption. 
• Implementation/Timeline. The proposed rule is unclear with respect to implementation timetables. There are several elements of the timeline about which the SNPRM is silent where sponsors may need guidance. Clear deadlines are important because SMS implementation could easily take 5-8 years for some elements within the program. 
• Phasing-In Components of SMS. FAA should phase in the actual implementation requirements for the three categories of airport sponsors required to implement SMS. This would include allowing an airport to justify a phase-in approach for training based on the characteristics of the particular airport environment, funding constraints, and other airport-specific concerns. 
• Non-Movement Areas. AAAE believes that SMS implementation in the non-movement area should be voluntary. However, if FAA is to apply airport SMS requirements to non-movement areas, it should explicitly exempt those areas under exclusive control of air carriers, subject to SMS for operators and those areas under military control. In addition, AAAE recommended that FAA explicitly address the jurisdictional issues that will occur in the non-movement areas. 
• Interoperability. FAA should explain how the implementation timeline for airport SMS fits within FAA's overall plan to implement SMS throughout the aviation industry. The interaction between Part 121 SMS and airport SMS presents complex practical and legal problems because of the different types of operators subject to Part 121 and Part 139. 
• Data Reporting. The creation of a national reporting database for voluntary reporting of SMS data is advisable. FAA should confirm that data submitted to the national reporting database voluntarily will not be subject to FOIA. FAA should also provide guidelines establishing minimum standards on the types of data that should be sent to FAA.  
• Safety Risk Management. Airport sponsors should have the flexibility to decide which hazards require the five-step process and which hazards simply need a more cursory review and mitigation. FAA should clarify that airport sponsors have the flexibility to decide what measures are appropriate. 
What's Next? FAA plans to publish the notice reopening the comment period on airport SMS in the Federal Register tomorrow, triggering an opportunity for AAAE and other stakeholders to respond on or before Thursday, September 23, 2021. AAAE will be working closely with its members, particularly the Operations, Safety, Planning and Emergency Management (OSPEM) and General Aviation Airports committees, and our partners at ACI-NA to prepare any additional comments for FAA to consider. Please reach out to Justin Barkowski if you would like to get involved in the comment development process. 
 
  
