Regulatory Alert: AAAE Responds to FAA's Reopened Comment Period for Airport SMS Rulemaking
September 23, 2021
AAAE responded to the Federal Aviation Administration's (FAA) reopened comment period for the rulemaking on airport safety management systems (SMS). In the comments filed today, AAAE emphasized the need for FAA to ensure they work collaboratively with industry on implementation of any new SMS regulatory requirements and provide airports with flexible timelines for developing and deploying their programs. AAAE also highlighted the concerns that some airports have over the costs associated with the proposal and urged FAA to ensure that any new regulatory requirements were limited to an appropriate scope of airports where the benefits will meaningfully outweigh the costs.
You can read AAAE's full comments to FAA here. 
Background on SMS Rulemaking. As many airports are aware, FAA's rulemaking on airport SMS has a very long history. 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. 
Over the past five years, FAA has adjudicated the comments filed in response to the SNPRM in 2016. However, before moving forward with a final rule, FAA and the administration wanted to determine if any new information has become available since the last comment period that may influence the direction of the final requirements. On August 24, FAA reopened the comment period for the rulemaking, providing a 30-day window for industry to provide the agency with any new information that airports may have for the agency.
Summary of AAAE's 2016 Comments. 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. While generally supportive of SMS principles, AAAE raised concerns with: the scope of airports included within the proposal; potential liability implications for the 'Accountable Executive' for the SMS program; expectations for training airport employees on SMS; protecting data from becoming public under open records laws; lack of clarity surrounding implementation timetables; applying SMS to the non-movement area; how airport SMS fits in with other SMS in the industry; and how FAA plans to administer and conduct oversight over an airport's SMS program; among others. You can read AAAE's 2016 comments here. 
Summary of AAAE's Comments Filed Today. Based on input received from members, including survey responses and a webinar discussion, AAAE offered some additional recommendations and responses to the agency's airport SMS rulemaking initiative. Specifically, AAAE recommended FAA, among other things, do the following: 
• Provide industry with an opportunity to comment on (a) the latest version of the airport SMS proposal that FAA is considering issuing as a final rule; and (b) the latest version of FAA's draft Advisory Circular pertaining to the implementation of airport SMS.
• Provide airports with flexible implementation timelines to accommodate airports of all sizes and complexity of operations.
• Create an FAA-Industry Implementation Working Group after release of the final rule to sort through and address practical issues that will inevitably arise during implementation.
• Provide clear guidance to inspectors on the appropriate scope and level of review that an airport's SMS would be subjected to during a Part 139 inspection, including ensuring that FAA does not 'second guess' airport decision-making during the safety risk assessment process.
• Create an 'Airport Non-Movement Area (NMA) Assessment Tool for Part 139 SMS Applicability' that FAA, in coordination with the airport, could use to evaluate whether a Part 139 SMS is appropriate at a specific non-movement area.
• Exempt from SMS requirements those small international airports where international service is limited to general aviation operations and that do not otherwise qualify for the applicability of the rule, especially because of how these airports have been impacted financially during the pandemic.
What's Next? FAA will begin to consider the new comments, data, and information that the agency received during the second opportunity for industry to comment. Absent any major developments, AAAE expects that FAA will move forward with a final rule sometime in early-to-mid 2022. 
Additional Resources
• FAA's SNPRM on Airport SMS (July 14, 2016) 
• Regulatory Docket for FAA's Airport SMS Rulemaking 
• AAAE's 2016 Response to the FAA SNPRM 
• AAAE's September 2 Webinar on FAA's SNPRM 
• AAAE's September 2 Slide Deck on FAA's SNPRM 
AAAE responded to the Federal Aviation Administration's (FAA) reopened comment period for the rulemaking on airport safety management systems (SMS). In the comments filed today, AAAE emphasized the need for FAA to ensure they work collaboratively with industry on implementation of any new SMS regulatory requirements and provide airports with flexible timelines for developing and deploying their programs. AAAE also highlighted the concerns that some airports have over the costs associated with the proposal and urged FAA to ensure that any new regulatory requirements were limited to an appropriate scope of airports where the benefits will meaningfully outweigh the costs.
You can read AAAE's full comments to FAA here. 
Background on SMS Rulemaking. As many airports are aware, FAA's rulemaking on airport SMS has a very long history. 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. 
Over the past five years, FAA has adjudicated the comments filed in response to the SNPRM in 2016. However, before moving forward with a final rule, FAA and the administration wanted to determine if any new information has become available since the last comment period that may influence the direction of the final requirements. On August 24, FAA reopened the comment period for the rulemaking, providing a 30-day window for industry to provide the agency with any new information that airports may have for the agency.
Summary of AAAE's 2016 Comments. 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. While generally supportive of SMS principles, AAAE raised concerns with: the scope of airports included within the proposal; potential liability implications for the 'Accountable Executive' for the SMS program; expectations for training airport employees on SMS; protecting data from becoming public under open records laws; lack of clarity surrounding implementation timetables; applying SMS to the non-movement area; how airport SMS fits in with other SMS in the industry; and how FAA plans to administer and conduct oversight over an airport's SMS program; among others. You can read AAAE's 2016 comments here. 
Summary of AAAE's Comments Filed Today. Based on input received from members, including survey responses and a webinar discussion, AAAE offered some additional recommendations and responses to the agency's airport SMS rulemaking initiative. Specifically, AAAE recommended FAA, among other things, do the following: 
• Provide industry with an opportunity to comment on (a) the latest version of the airport SMS proposal that FAA is considering issuing as a final rule; and (b) the latest version of FAA's draft Advisory Circular pertaining to the implementation of airport SMS.
• Provide airports with flexible implementation timelines to accommodate airports of all sizes and complexity of operations.
• Create an FAA-Industry Implementation Working Group after release of the final rule to sort through and address practical issues that will inevitably arise during implementation.
• Provide clear guidance to inspectors on the appropriate scope and level of review that an airport's SMS would be subjected to during a Part 139 inspection, including ensuring that FAA does not 'second guess' airport decision-making during the safety risk assessment process.
• Create an 'Airport Non-Movement Area (NMA) Assessment Tool for Part 139 SMS Applicability' that FAA, in coordination with the airport, could use to evaluate whether a Part 139 SMS is appropriate at a specific non-movement area.
• Exempt from SMS requirements those small international airports where international service is limited to general aviation operations and that do not otherwise qualify for the applicability of the rule, especially because of how these airports have been impacted financially during the pandemic.
What's Next? FAA will begin to consider the new comments, data, and information that the agency received during the second opportunity for industry to comment. Absent any major developments, AAAE expects that FAA will move forward with a final rule sometime in early-to-mid 2022. 
Additional Resources
• FAA's SNPRM on Airport SMS (July 14, 2016) 
• Regulatory Docket for FAA's Airport SMS Rulemaking 
• AAAE's 2016 Response to the FAA SNPRM 
• AAAE's September 2 Webinar on FAA's SNPRM 
• AAAE's September 2 Slide Deck on FAA's SNPRM 
