Certification of Airports

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.

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:

linda.bruce@faa.gov.

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

-AWA-SBREFA@faa.gov.

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

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.

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

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 § 139.111, Exemptions and § 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 § 139.111, Exemptions and § 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.

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 § 139.111, Exemptions and § 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 § 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

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 § 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 § 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 § 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.

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 § 121.590 based on comments received on § 121.590 and comments received on proposed § 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 § 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 § 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 § 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 § 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

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 § 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 § 139.3, Definitions, was moved to proposed § 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 § 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 § 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

exemption procedures of § 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 § 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

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 § 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 § 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.

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 § 139.105, Inspection authority, and § 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

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 § 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 § 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 § 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 § 139.111(b). As discussed in the General Comments section above, a new paragraph (e) has been added to § 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 § 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 § 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 § 139.325, Airport emergency plan. There are no timed response, equipment, or personnel requirements as were proposed in the now deleted § 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

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 § 139.111, Exemptions and § 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 § 139.321 is deleted in its entirety, and all references to § 139.321 in § 139.111 have been deleted. All requirements for petitions for relief from ARFF requirements are now contained in § 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 §§ 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

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 § 139.203 for maintaining an ACM were incorporated into proposed § 139.201, General requirements, as previously discussed. The contents of existing § 139.205, Contents of airport certification manual, and § 139.213, Contents of airport certification specifications, were revised and became the new proposed § 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 § 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 § 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 (§ 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 (§ 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 § 139.313, Snow and ice control; § 139.323, Traffic and wind direction indicators; § 139.331, Obstructions; § 139.335, Public protection; and § 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 § 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 § 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 § 139.203 are intentional. Specifically, this commenter notes that § 139.203(b)(18) differs slightly from § 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 § 139.203(b). As discussed previously, a correction was issued on August 15, 2001 (66 FR 42807).

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 § 139.301, Records, and § 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 § 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 § 139.111, Exemptions and § 139.315, Aircraft rescue and firefighting: Index determination).

However, the FAA does not agree that § 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 § 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 § 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 § 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 § 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 § 139.319(l) in proposed § 139.203(b)(6) is incorrect. The reference should be to § 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 § 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, § 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 § 139.321 in paragraph (b)(17) was changed to § 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 § 139.205, Contents of airport certification manual, were moved and consolidated into proposed § 139.203, Contents of airport certification manual. In existing § 139.217, Amendment to airport certification manual or airport certification specifications, procedures and requirements for amending the ACM were redesignated as proposed § 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 § 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 § 139.205(d), reconsider an amendment initiated by the FAA.

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 § 139.301 dealing with inspection authority was moved and consolidated with § 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 § 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 § 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 § 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, § 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

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 § 139.329 Ground vehicles. Since the training requirements of this section apply to the same individuals that must be trained under existing § 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

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 § 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 § 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.

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 § 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

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 § 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 § 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

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 § 139.111. In addition, alternative compliance measures have been established for Class III airports (see the section-by-section analysis of § 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 § 139.315, ARFF: Index determination, § 139.317, ARFF: Equipment and agents, and § 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 § 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 § 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

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 § 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 § 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 § 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 § 139.315(e) or petitioning for relief from ARFF requirements under § 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 § 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 st

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