6380 Federal Register / Vol. 69, No. 27 / Tuesday, February 10, 2004 / Rules and Regulations 

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 -AWASBREFA@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

Federal Register / Vol. 69, No. 27 / Tuesday, February 10, 2004 / Rules and Regulations 6381

passenger seats but less than 31 

passenger seats) and unscheduled 

operations of large air carrier aircraft. 

Class IV airports would be those that 

serve only unscheduled operations of 

large air carrier aircraft. 

As proposed, Class III airports would 

be those airports that serve only 

scheduled operations of small air carrier 

aircraft and, as noted above, would be 

required for the first time to be 

certificated under part 139. As specified 

in the authorizing statute, proposed 

airport certification requirements would 

not be applicable to airports located in 

the State of Alaska that only serve 

scheduled operations of small air carrier 

aircraft. 

Similar to how the FAA currently 

certificates airports, the proposal 

required airport operators choosing to 

be certificated under part 139 to 

document their procedures for 

complying with part 139, as well as 

with the safety and operational 

requirements. To accommodate 

variations in airport layout, operations, 

air carrier service, and to address other 

local considerations, the FAA proposed 

that compliance procedures for the more 

burdensome requirements be tailored 

for each airport operator. 

Industry Participation 

Through the Aviation Rulemaking 

Advisory Committee (ARAC), the FAA 

sought industry input on regulatory and 

nonregulatory issues on the certification 

of airports serving smaller air carrier 

operations. The FAA asked the ARAC to 

consider alternatives to minimize the 

operational burden on smaller airports, 

including options for aircraft rescue and 

firefighting (ARFF) services. The FAA 

also suggested that the ARAC conduct a 

survey of affected airports to gauge the 

impact of any proposed requirement. 

In 1995, the ARAC appointed the 

Commuter Airport Certification 

Working Group to complete these tasks. 

This working group comprised 

representatives from industry trade and 

union associations, including Air Line 

Pilots Association (ALPA), Aircraft 

Owners and Pilots Association (AOPA), 

American Association of Airport 

Executives (AAAE), National Air 

Transportation Association (NATA), 

National Association of State Aviation 

Officials (NASAO), and Regional Airline 

Association (RAA). The FAA and 

Landrum and Brown, an airport 

planning and engineering consulting 

firm, also provided technical support. 

However, after the passage of the 

Federal Aviation Reauthorization Act of 

1996, the FAA decided to consider 

exercising its new authority to regulate 

airports and asked the ARAC to 

immediately provide the FAA a report 

on certifying airports serving small air 

carrier aircraft that included draft 

regulatory language. 

While the working group agreed on 

many issues, two members (ALPA and 

NATA) disagreed with several of the 

group’s recommendations on regulatory 

requirements, including marking and 

lighting, ARFF, and the handling of 

hazardous substances and materials. 

Subsequently, in February 1997, both 

the majority and minority views of the 

working group, and those of individual 

workgroup members, were presented to 

the FAA. 

As noted in the NPRM, the FAA 

considered these positions in this 

rulemaking. However, the decisions in 

this document are the FAA’s. 

Discussion of Comments 

The FAA received 929 comments on 

the NPRM, of which 858 are similar 

letters from individuals and 

organizations addressing concerns about 

Centennial Airport in Greenwood, CO 

(see discussion on public charters 

below). The remaining 72 commenters 

addressed part 139 and part 121 issues. 

These commenters included—

• Air carriers: Eagle Canyon Airlines 

d.b.a. Scenic Airlines, Era Aviation, and 

Champlain Enterprises d.b.a. U.S. 

Airways Express. 

• Airport operators, including state 

and local governments: Augusta State 

Airport (ME), Boone County Airport 

(AR), Chautauqua County Airports 

Commission (NY), Cheyenne Airport 

(WY), City of Alamogordo (NM), City of 

Phoenix (AZ), City of Show Low (AZ), 

City and County of Twin Falls (ID), City 

of Yankton (SD), Clark County 

Department of Aviation (NV), Clinton 

County Airport (NY), County of Hill 

(MT), Dallas/Fort Worth Int’l Airport 

(TX), Dane County Regional Airport 

(WI), Dawson Community Airport (MT), 

Fort Lauderdale—Hollywood Int’l 

Airport (FL), Hancock County’Bar 

Harbor Airport (ME), Havre City—

County Airport (MT), Garfield County 

(UT), Grant County Commissioners 

(NM), Jamestown Airport Authority 

(ND), Kingman Airport Authority (AZ), 

Lebanon Municipal Airport (NH), 

Manchester Airport (NH), Mercer 

County Airport (WV), Metropolitan 

Airports Commission (MN), Miles City 

Airport Commission (MT), Ocala 

Regional Airport (FL), Port Authority of 

New York and New Jersey, Rutland 

Region Transportation Council (VT), 

Sidney—Richland Airport (MT), 

Spencer Municipal Airport (IA), State of 

Alaska, State of Hawaii, State of Iowa, 

State of Michigan, State of Montana, 

State of Maine, State of New York, State 

of Vermont, State of West Virginia, 

Williamson County Regional Airport 

(IL), and Yuma County Airport 

Authority (AZ). 

• Representatives of employees: Air 

Line Pilots Association, The Aircraft 

Rescue and Fire Fighting Working 

Group, International Association of Fire 

Chiefs, Coalition of Airline Pilots 

Association, International Association 

of Fire Fighters, and International 

Brotherhood of Teamsters. 

• Associations: Aircraft Owners and 

Pilot Association, Airports Council 

International-North America, American 

Association of Airport Executives, 

National Air Transportation 

Association, National Association of 

State Aviation Officials, National 

Business Aviation Association, National 

Fire Protection Association, Northeast 

Chapter of American Association of 

Airport Executives, Regional Airline 

Association, and the Wyoming Airport 

Operators Association. 

• The National Transportation Safety 

Board. 

• U.S. Department of Agriculture. 

• U.S. Department of Defense.

• Individuals. 

Except for issues about public 

charters, commenters support the new 

structure of the regulations. However, 

commenters were evenly divided on 

their support or opposition to the 

proposed requirements for airports 

serving smaller air carrier operations. As 

anticipated, airport operators express 

concerns over the increased burden and 

cost impacts of the proposed rule. They 

are particularly concerned about the 

costs to comply with proposed ARFF 

requirements. Conversely, the firefighter 

and pilot labor organizations believe the 

proposal did not go far enough. 

Most operators of certificated airports 

did not comment on the proposal. Of 

the 656 currently certificated airports 

(both civilian and military airports), 

only 18 airport operators sent 

comments. Most of these airport 

operators recommended changes to the 

proposal. Of the 37 proposed Class III 

airports (airports that are to be newly 

certificated), 14 airport operators sent 

comments. Although all of these airport 

operators recommend changes to the 

proposal, only one supports certifying 

proposed Class III airports. 

The final rule is adopted, as modified 

and detailed below. In adopting the 

final rule, the FAA has tried to strike a 

balance and has made changes to the 

final rule in response to the comments. 

Comments specific to a section are 

discussed below in the section-bysection analysis, following the 

discussion of Public Charters and 

General Comments.

6382 Federal Register / Vol. 69, No. 27 / Tuesday, February 10, 2004 / Rules and Regulations 

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 Air21 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

Federal Register / Vol. 69, No. 27 / Tuesday, February 10, 2004 / Rules and Regulations 6383

in air transportation at all airports 

covered by the statute and part 139.

The FAA believes that airports 

serving small air carrier operations will 

not have difficulty complying with most 

part 139 requirements. While airport 

operators that choose to be certificated 

under part 139 will be required to 

prepare a tailored Airport Certification 

Manual (ACM) detailing how they will 

comply with part 139 safety and 

operational requirements, these airport 

operators will be allowed flexibility in 

complying with the requirements, 

including ARFF requirements. In 

tailoring an ACM, the FAA will 

consider with each airport operator 

variations in airport layout and air 

carrier operations served. 

In addition, the FAA will assist an 

airport operator in obtaining Federal 

funds to be used to comply with part 

139 requirements. If compliance with 

part 139 is still too burdensome, 

particularly where the local community 

resources are limited, the airport 

operator may petition the FAA for an 

exemption, as specified under the 

authorizing statute. The FAA also has 

established alternative compliance 

measures in the final rule for Class III 

airports (see the section-by-section 

analysis of § 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-bysection 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 longterm 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.

6384 Federal Register / Vol. 69, No. 27 / Tuesday, February 10, 2004 / Rules and Regulations 

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 offairport 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

Federal Register / Vol. 69, No. 27 / Tuesday, February 10, 2004 / Rules and Regulations 6385

maintenance costs associated with the 

proposal will be burdensome to smaller 

airports and will result in these airports 

being poorly operated. 

FAA Response: The FAA partly 

agrees. The commenter is correct in 

asserting that AIP funds are limited. As 

discussed in the proposal at 65 FR 

38664, most operating and maintenance 

costs associated with part 139 are not 

eligible for Federal funds. 

AIP funds may be used to purchase 

safety equipment needed to comply 

with part 139 requirements only under 

two situations. First, the equipment is 

required under regulation, or second, 

the FAA has determined that this 

equipment will contribute significantly 

to the safety or security of persons or 

property at an airport (see the sectionby-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-bySection 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 passengercarrying 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 passengercarrying operations with airplanes 

designed for at least 31 passenger seats 

or who conduct scheduled passengercarrying 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.

6386 Federal Register / Vol. 69, No. 27 / Tuesday, February 10, 2004 / Rules and Regulations 

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 allcargo 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

Federal Register / Vol. 69, No. 27 / Tuesday, February 10, 2004 / Rules and Regulations 6387

and economical to comply with part 139 

requirements at all times. 

Comment: In response to the FAA’s 

request for information on the 

certification of heliports, a commenter 

recommends using the National Fire 

Protection Association (NFPA) 

standards for heliports (NFPA 418, 

Standards for Heliports) in conjunction 

with AC 150/5390–2, Heliport Design. 

Another commenter suggests the FAA 

consult with other government offices to 

determine if passengers using heliports 

deserve the same safety standards as 

passengers flying into an airport 

certificated under part 139.

FAA Response: While in general 

agreement with these comments, the 

FAA has determined it is not in the 

public interest to certificate heliports at 

this time. Heliports typically are used 

by general aviation operators and serve 

very few air carrier operations (currently 

only one heliport is voluntarily 

certificated under part 139 although it 

does not serve air carrier operations 

conducted in helicopters with more 

than 30 seats). Further, there are very 

few helicopters that can seat more than 

nine passengers, and even fewer still are 

used for scheduled passenger 

operations. Since Congress has not 

given the FAA the authority to 

certificate facilities serving general 

aviation operations and the vast 

majority of operations served by 

heliports are by general aviation 

operators, certificating the few heliports 

that serve air carrier operations would 

not significantly enhance safety. 

However, the FAA will continue to 

monitor the situation and encourage 

heliport operators to follow AC 150/

5390–2 and NFPA 418 since the 

provisions of part 139 are designed for 

airports serving fixed-wing aircraft and 

often do not transfer to heliports. In 

addition, those heliport operators that 

have accepted Federal funds may be 

obligated to comply with AC 150/5390–

2 under their grant assurances. 

Comment: Three commenters express 

opposition to the FAA’s finding that 

airports operated by the U.S. 

Government, including the Department 

of Defense (DOD), are not subject to part 

139. These commenters believe that 

DOD standards for their airports differ 

significantly from part 139 and that 

such facilities are not maintained in a 

manner adequate for air carriers. At a 

minimum, these commenters 

recommend that the revised regulation 

should include definitions of ‘‘joint-use 

airport’’ and ‘‘shared-use airport’’ and 

clarify that the civilian operations of 

such airports would come under the 

purview of part 139. 

FAA Response: The FAA partly 

disagrees. Congress did not give the 

FAA the statutory authority to regulate 

airports operated by U.S. Government 

agencies. However, a new paragraph (b) 

has been added to this section to clarify 

that part 139 requirements apply to the 

civilian portions of a shared-use or 

joint-use airport that elects to obtain a 

part 139 certificate. Consequently, 

proposed paragraph (b) has been 

redesignated as new paragraph (c). 

Further, the terms ‘‘joint-use airport’’

and ‘‘shared-use airport’’ have been 

defined (see discussion comments for 

§ 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

6388 Federal Register / Vol. 69, No. 27 / Tuesday, February 10, 2004 / Rules and Regulations 

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 nonmovement 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 colocated 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

Federal Register / Vol. 69, No. 27 / Tuesday, February 10, 2004 / Rules and Regulations 6389

reference to the number of passenger 

seats, the terms ‘‘small air carrier 

aircraft’’ and ‘‘large air carrier aircraft’’

are now defined under the single term 

‘‘air carrier aircraft.’’ In addition, the 

definition of ‘‘safety area’’ has been 

modified to clarify that the safety area 

may also be used by aircraft landing 

short of a runway and to correspond to 

the definition of runway and taxiway 

safety areas contained in AC 150/5300–

13, Airport Design. Also, the definition 

of ‘‘Index’’ has been reordered for 

clarity, and the definition of ‘‘heliport’’

has been moved as it was not listed in 

the correct alphabetical order.

Further, modifications have been 

made to the definitions of ‘‘scheduled 

operation’’ and ‘‘unscheduled 

operation.’’ The term ‘‘commercial 

operator’’ has been deleted from both 

definitions as adopted changes to 

§ 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.

6390 Federal Register / Vol. 69, No. 27 / Tuesday, February 10, 2004 / Rules and Regulations 

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

Federal Register / Vol. 69, No. 27 / Tuesday, February 10, 2004 / Rules and Regulations 6391

equipment is required under regulation 

or the FAA has determined that this 

equipment will contribute significantly 

to the safety or security of persons or 

property at an airport (49 U.S.C. 

47102(3)(B)(ii), as amended). 

Comment: The FAA received one 

comment from an airport operator on 

the cost of surrendering a certificate and 

then later regaining it versus 

maintaining a certificate uninterrupted. 

At some point, this airport operator 

surrendered its AOC and then, in 1991, 

applied for another certificate. The cost 

to do this was $125,000, excluding 

administrative expenses. This 

commenter notes that the concept of an 

airport simply maintaining its facility to 

part 139 standards is faulty as the 

discretion given FAA inspectors allows 

for varying interpretations as to what is 

required. Thus, an airport operator may 

be found not in compliance although it 

has tried to remain so while not 

certificated. 

FAA Response: The FAA agrees that 

the methods and procedures for 

complying with certain part 139 

requirements may change during the 

time when an airport’s certificate is 

surrendered and then reinstated. Thus, 

an airport operator that continued to 

comply with its certification manual 

during this timeframe may not meet part 

139 requirements when reapplying for 

an AOC. In such instances, there may be 

a one-time cost to become certificated 

again that the airport operator might 

otherwise have absorbed over a longer 

period if it had remained certificated. 

To avoid such situations, an airport 

operator should request that the local 

FAA Airports Regional Office continue 

to provide it with airport information 

notices, including changes to the airport 

certification program. The FAA regional 

offices maintain a contact list of airport 

operators (often a combination of part 

139 certificate holders and 

noncertificate holders, recipients of AIP 

funds, and those serving only general 

aviation operations), State aviation 

agencies, and other interested parties. 

This list is used to distribute 

information about airport safety and 

standards, the part 139 airport 

certification program, and upcoming 

training events and to request comments 

on proposed changes to regulations and 

standards. Many regions also distribute 

informational newsletters, sponsor 

training events, and maintain Internet 

sites that provide airport operators upto-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

6392 Federal Register / Vol. 69, No. 27 / Tuesday, February 10, 2004 / Rules and Regulations 

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

Federal Register / Vol. 69, No. 27 / Tuesday, February 10, 2004 / Rules and Regulations 6393

Specifications (ACS)). Further, 

referencing specific AC series has 

proven impractical. ACs are revised 

periodically, and referring to them 

generically ensures the regulation 

remains current. 

Section as Adopted: This section is 

adopted with administrative changes. 

Minor grammatical edits have been 

made to paragraph (b)(3). 

Section 139.203 Contents of Airport 

Certification Manual 

Proposal: Under the proposal, existing 

standards of § 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).

6394 Federal Register / Vol. 69, No. 27 / Tuesday, February 10, 2004 / Rules and Regulations 

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-bysection 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.

Federal Register / Vol. 69, No. 27 / Tuesday, February 10, 2004 / Rules and Regulations 6395

The Associate Administrator for 

Airports stays the effective date of the 

amendment, pending a decision. 

Section as Adopted: This section is 

adopted with an administrative change. 

Language in paragraph (b) has been 

changed to clarify that the amendment 

process requires the certificate holder to 

file an application for an amendment in 

writing and submit it to the FAA 

Regional Airports Division Manager. 

Subpart D—Operations 

Section 139.301 Records 

Proposal: Under the proposal, the 

contents of existing § 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-thejob 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

6396 Federal Register / Vol. 69, No. 27 / Tuesday, February 10, 2004 / Rules and Regulations 

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

Federal Register / Vol. 69, No. 27 / Tuesday, February 10, 2004 / Rules and Regulations 6397

for each covered employee is sufficient, 

and recordkeeping time estimates are 

based on such a system. 

Recordkeeping time estimates for 

newly certificated airports also were 

determined to be eight hours. Since a 

simple paper system is acceptable for 

complying with the recordkeeping 

requirements of this section and these 

airport operators have small staffs, the 

FAA determined operators of such 

airports would need no more than a day 

to establish such a system. 

The time needed to update 

recordkeeping systems may be further 

reduced by changes made to paragraph 

(c) that limit training to personnel that 

enter movement areas. This change may 

reduce the number of records that need 

to be maintained. 

Section as Adopted: This section is 

adopted with changes. As discussed 

above, modifications have been made to 

paragraph (c). This paragraph now 

stipulates that training required under 

this section is limited to personnel that 

enter movement areas to perform duties. 

Additionally, new language has been 

added to specify the five subject areas 

that required training must include and 

to require recurrent training every 12 

months. 

Several modifications were made to 

paragraph (d) to clarify requirements for 

training records. Now, only records of 

training given after the effective date of 

the rule need to be maintained, and 

such records must be kept for 24 

consecutive calendar months. 

In addition, two new paragraphs have 

been added. New paragraph (e) 

identifies other new and proposed part 

139 training requirements. New 

paragraph (f) clarifies that a certificate 

holder can use individuals other than its 

own employees to comply with part 

139. 

Language from proposed § 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.

6398 Federal Register / Vol. 69, No. 27 / Tuesday, February 10, 2004 / Rules and Regulations 

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 lowvisibility 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

Federal Register / Vol. 69, No. 27 / Tuesday, February 10, 2004 / Rules and Regulations 6399

retroreflective markers creates an unsafe 

condition. During certain visual 

conditions and aircraft operations, 

retroreflective markers are an acceptable 

means to mark the edge of pavements. 

Further, the commenter incorrectly 

assumes that retroreflective markers are 

intended to be seen from the air. 

Retroreflective markers are intended 

only to provide visual guidance to a 

pilot operating an aircraft on the 

ground. Lighting that provides visual 

decent guidance information to pilots 

during an approach to the runway is the 

only airport lighting intended to been 

seen in the air. This lighting, known as 

approach lighting, is never 

retroreflective. 

The FAA determines the type of 

runway lighting, including approach 

lights, to be used based on runway 

takeoff and landing minimums. Runway 

takeoff and landing minimums are the 

horizontal and vertical visual distances 

the pilot must be able to see during poor 

meteorological conditions in order to 

use the runway. The FAA considers 

many factors in determining takeoff and 

landing minimums, such as runway 

length and obstructions near the 

runway, and these minimums will vary 

from runway to runway. 

While § 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

6400 Federal Register / Vol. 69, No. 27 / Tuesday, February 10, 2004 / Rules and Regulations 

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-bysection 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-bysection 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

Federal Register / Vol. 69, No. 27 / Tuesday, February 10, 2004 / Rules and Regulations 6401

base operator (FBO), or a private 

company. Additionally, both 

commenters suggest that smaller 

airports be allowed to house ARFF 

equipment at a local fire station and 

train firefighters at that station in ARFF 

procedures. 

FAA Response: The FAA agrees in 

part. As adopted, the final rule allows 

Class III airports to either comply with 

Index A ARFF requirements or use 

alternative means to comply with ARFF 

requirements that provide a comparable 

level of safety, as approved by the 

Administrator. Such alternate means 

must be included in the FAA-approved 

ACM and, at a minimum, address four 

specific operational items, including 

type of equipment to be provided and 

airport familiarization training for 

emergency service providers. 

Alternative rescue and emergency 

services may be those used to comply 

with airport emergency plan 

requirements under § 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 standards in this section 

will be forwarded to the ARAC for 

consideration. Otherwise, these 

comments will not be addressed as they 

are beyond the scope of the NPRM. 

Comment: The National 

Transportation Safety Board (NTSB) 

comments that it issued Safety 

Recommendation A97–107 following an 

aircraft accident in Quincy, IL, on 

November 19, 1996 (see 65 FR 38652 for 

a summary of this accident). This safety 

recommendation asked the FAA ‘‘to 

develop ways to fund airports that are 

served by scheduled passenger 

operations on aircraft having 10 or more 

passenger seats and require these 

airports to ensure that ARFF units with 

trained personnel are available during 

commuter flight operations and are 

capable of timely response.’’ The NTSB 

further states that this proposal is an 

acceptable approach to addressing this 

safety recommendation and that it 

supports the proposed revisions that 

require airport operators to provide 

ARFF coverage during scheduled 

operations of air carrier aircraft with 10 

or more seats. The NTSB also affirms its 

position that commuter airline 

passengers are entitled to one level of 

safety. 

FAA Response: The FAA agrees. 

However, comments received from 

operators of small airports indicate that 

they are unable to comply with part 139 

in the same manner as large airports. 

The limited number of annual 

enplanements received by these 

facilities makes it difficult for them to 

collect enough revenue to allow them to 

comply with full Index A ARFF 

requirements. This is particularly the 

case at airports with fewer than 10,000 

annual enplanements. 

As discussed earlier, the FAA plans to 

use its exemption authority in instances 

where compliance with part 139 would 

be unduly burdensome, costly, or 

impractical. Additionally, the FAA will 

use its specific authority to grant limited 

exemptions from ARFF requirements 

under 49 U.S.C. 44706 to require safety 

measures at all airports serving small air 

carrier aircraft. Any airport operator that 

petitions for relief from ARFF

6402 Federal Register / Vol. 69, No. 27 / Tuesday, February 10, 2004 / Rules and Regulations 

requirements must provide certain 

evidence that such requirements are 

unreasonably costly, burdensome, or 

impractical. 

Regarding alternative funding sources, 

Congress recently directed the FAA to 

set aside a portion of existing AIP funds 

to assist airport operators in complying 

with the requirements of this rule (see 

49 U.S.C. 47116(e)). Beyond that, the 

FAA has very limited options for 

developing new funding mechanisms, 

and Congress would have to appropriate 

any additional Federal funds. 

Comment: Three commenters state 

that the quantity of water required to be 

carried for foam production by Index E 

vehicles under § 139.317(e)(2) was the 

same as the quantity of water required 

for Index D vehicles under 

§ 139.317(d)(2). They note the current 

regulation requires more water for Index 

E vehicles than Index D and asked if this 

change was a typographical error. 

FAA Response: The proposed change 

to § 139.317(e)(2) was an error. No 

change was intended, and this 

paragraph has been corrected. The total 

quantity of water for foam production 

still must be 6,000 gallons for Index E 

vehicles. 

Comment: A commenter recommends 

eliminating the ‘‘grandfather’’

provisions for ARFF vehicles and to 

establish a date certain by which all 

ARFF vehicles used by certificate 

holders must meet the requirements of 

this section.

FAA Response: The FAA agrees and 

had intended to delete paragraph (f) in 

the proposal. A correction was issued 

on August 21, 2000 (65 FR 50669). 

Proposed paragraph (g)(3) also 

contains a ‘‘grandfather’’ provision for 

ARFF vehicles. This paragraph has been 

deleted to be consistent with the 

removal of paragraph (f). Consequently, 

as of the effective date of this rule, most 

certificate holders are required to use 

ARFF vehicles that comply with the 

requirements of this section. Class II, III, 

and IV airport operators will have 

additional time to comply. 

Comment: Four commenters 

recommend an extension of the 

deadline, ranging from an additional 1 

to 3 years, for Class II, III, and IV airport 

operators to comply with this section. 

These commenters all state that airport 

operators need more time to acquire 

funding, and several noted that local 

government budget processes would not 

allow these airport operators to secure 

the necessary funds within the proposed 

2-year deadline. 

FAA Response: The FAA agrees that 

additional compliance time is warranted 

and has amended paragraph (k) to allow 

Class II, III, and IV airport operators an 

additional year to comply. These airport 

operators now have 3 years from the 

effective date of this rule to comply with 

this section or request an exemption 

under § 139.111. The FAA has 

determined that 3 years is a reasonable 

period for most airport operators to 

apply for and receive Federal funds and 

acquire local funds. On a case-by-case 

basis, the FAA may consider granting 

additional time to those airport 

operators experiencing budgetary or 

procurement problems. 

Comment: A commenter notes that 

the proposal states that the FAA will 

consider a time extension for airport 

operators unable to meet compliance 

dates proposed in §§ 139.317(l) and 

139.319(m) but does not provide criteria 

by which it would evaluate such 

requests. This commenter states that, in 

contrast, proposed § 139.321 establishes 

criteria that airports must satisfy before 

the FAA would consider an exemption 

from some or all of ARFF equipment, 

extinguishing agent, and operational 

requirements. The commenter requests 

that the FAA make ‘‘clear in the final 

rule that it will not grant any extensions 

of time to the compliance dates, except 

in extraordinary circumstances that 

satisfy strict criteria that the FAA sets 

forth in the final rule.’’

FAA Response: The FAA partly 

agrees. Statements made in the proposal 

regarding time extensions for airport 

operators unable to meet ARFF 

compliance dates (65 FR 38653 and 65 

FR 38654) should have stated that the 

FAA would consider granting time 

extensions to those airport operators 

that petitioned for such relief as 

required under § 139.111. The FAA will 

consider granting exemptions based on 

criteria established in this section. 

As discussed earlier, most of the 

‘‘strict criteria’’ of proposed § 139.321 

that the commenter referenced has been 

deleted from the rule. All requirements 

for petitions for relief from ARFF 

requirements, including compliance 

deadlines, are now contained in 

§ 139.111. 

The FAA may consider granting time 

extensions for compliance in situations 

other than extraordinary circumstances. 

For example, a certificate holder may 

petition for relief if it cannot comply 

with certain compliance dates because 

the ARFF vehicle manufacturer has 

delayed the delivery of a required 

vehicle for reasons beyond the control 

of the airport operator. Because every 

petition will be different due to varying 

airport size, operations, and 

organization, the FAA will consider 

each request for a time extension on its 

merits. 

Section as Adopted: This section is 

adopted with changes. As noted in the 

August 21, 2000, correction (65 FR 

50669), the deletion of proposed 

paragraph (f) resulted in the redesignation of § 139.317(g) through (l) as 

paragraphs (f) through (k). 

For the reasons discussed above, the 

quantity of required water in paragraph 

(e)(2) has been corrected to read 6,000 

gallons, and paragraph (f)(3) has been 

deleted. Paragraph (k) also has been 

modified to allow Class II, III, and IV 

airport operators an additional year to 

comply with the requirements of this 

section. 

In addition, paragraph (j) has been 

changed. The phrase ‘‘in the 150 series’’

has been deleted and the word 

‘‘standards’’ replaced by the word 

‘‘methods.’’ As discussed in the 

proposal (65 FR 38643), similar changes 

were made throughout the rule to 

language referencing advisory circulars 

and should have been made to this 

paragraph as well. 

Section 139.319 Aircraft Rescue and 

Firefighting: Operational Requirements 

Proposal: This section contained 

existing standards for the training of 

ARFF personnel; ARFF vehicle marking, 

lighting, and readiness; and emergency 

access roads. This section also 

established criteria for a certificate 

holder for adjusting ARFF coverage to 

correspond to changes in air carrier 

operations. 

Changes were proposed to clarify 

training requirements for rescue and 

firefighting personnel and emergency 

medical personnel, including 

requirements for training records. In 

addition, all references to specific series 

numbers within the AC system were 

deleted, and changes were made to 

reflect changes in terminology used to 

describe fire-extinguishing agents. 

Several changes also were proposed to 

require the certificate holder to equip 

ARFF vehicles with guidance material 

for responding to hazardous materials/

dangerous goods incidents.

It was proposed that all certificate 

holders be required to comply with this 

section. A 2-year compliance date was 

proposed for those airports required to 

comply with this section for the first 

time (proposed Class II, III, and IV 

airports). 

Comment: Many of the comments 

received on this section recommend 

changes to specific standards, including 

training requirements for ARFF and 

medical personnel, response times, and 

vehicle readiness. Some of these 

commenters also recommend that these 

standards be reconciled with other

Federal Register / Vol. 69, No. 27 / Tuesday, February 10, 2004 / Rules and Regulations 6403

Federal and industry firefighting 

standards. 

FAA Response: As discussed 

previously, the NPRM did not propose 

any major revisions of ARFF standards 

and the ARAC has since accepted the 

task to review part 139 ARFF standards. 

Comments received that address 

specific ARFF standards in this section 

will be forwarded to the ARAC for 

consideration. Otherwise, these 

comments will not be addressed as they 

are beyond the scope of the NPRM. 

Comment: Two commenters state that 

cross training of airport personnel could 

reduce the cost of complying with ARFF 

requirements. One of these commenters 

notes that if an airport operator has 

management and maintenance 

personnel, the actual number of staff 

required for ARFF would be low. This 

commenter reasons that the FAA’s 

willingness to be flexible with airport 

operators currently required to comply 

with Index A requirements, particularly 

with staffing issues, overcomes the 

argument made by other commenters 

that ARFF requirements are too onerous. 

The commenter also states that small 

airport operators would not be that 

much more burdened if they must 

comply with existing requirements for 

ARFF response capability during air 

carrier operations for a defined period 

before and after air carrier aircraft 

operations. Noting that current airport 

staff or the local fire department could 

be used to meet ARFF response 

requirements, this commenter believes 

that the annual cost for initial 

compliance with ARFF equipment and 

training could be less than $20,000, 

excluding the staffing costs, and half 

this amount annually thereafter. 

FAA Response: The FAA agrees in 

part. This section does not require an 

airport operator to use only professional 

firefighters or limit the duties of 

personnel used to comply with this 

section. This section only requires 

certificate holders to use personnel to 

perform rescue and firefighting duties 

that have been trained in the subject 

areas specified in paragraph (i). 

Accordingly, the certificate holder could 

choose to train and use existing 

employees for ARFF duties, but each 

airport situation is unique. The FAA 

cannot make a general conclusion about 

the burdens imposed on any airport 

operator without more information. 

Comment: Several commenters state 

that if they are required to comply with 

part 139 ARFF requirements, local laws 

would require them to hire professional 

firefighters. 

FAA Response: The FAA agrees that 

local laws and ordinances may require 

the airport operator, in order to comply 

with part 139 requirements, to go 

beyond what the FAA requires. If local 

laws make compliance with part 139 

requirements unreasonably costly, 

burdensome, or impractical, the 

certificate holder can petition the FAA 

for relief, as specified under § 139.111. 

In addition, holders of Class III Airport 

Operating Certificate may propose 

under § 139.315(e) an alternative means 

of compliance with ARFF requirements 

that may better address local laws and 

ordinances. 

Comment: Several commenters note 

that the FAA and the U.S. Occupational 

Safety and Health Administration 

(OSHA) have different standards for the 

number of personnel required for ARFF. 

Specifically, commenters questioned the 

applicability of the ‘‘two-in/two-out’’

policy contained in the Respiratory 

Protection Standard (29 CFR 1910.134) 

to aircraft firefighting scenarios. This 

standard requires that firefighters 

engaged in fighting interior structural 

fires work in a buddy system that 

requires at least two workers in the 

structure and at least two workers 

outside in case a rescue of the 

firefighters is needed. Commenters state 

that this standard would require them to 

hire additional personnel. 

FAA Response: The FAA disagrees. 

The OSHA Respiratory Protection 

Standard does not require certificate 

holders to hire more ARFF personnel 

than normally would be required to 

comply with part 139. In a legal 

memorandum developed jointly by the 

FAA and the OSHA (dated July 7, 1999) 

and placed in the docket, it was 

determined that the respiratory standard 

is applicable only to personnel fighting 

a fire within a structure and not an 

outside aircraft fire. As the primary 

purpose of ARFF personnel is to 

suppress the external aircraft fire and 

establish an escape route for the aircraft 

crew and passengers, the ‘‘two-in/twoout’’ rule does not apply to ARFF. 

Comment: A commenter states that 

neither the FAA nor an airport operator 

has the authority to require a private 

company to provide ARFF services 

without compensation. 

FAA Response: The commenter 

misunderstood the provision that allows 

an airport operator to use non-airport 

personnel to comply with the part 139, 

including ARFF requirements. The FAA 

gives an airport operator the discretion 

to use personnel other than its own 

employees to comply with part 139 

requirements. Accordingly, an airport 

operator may decide that the best 

approach to complying with ARFF 

requirements is to arrange for such a 

service through a tenant or a contractor. 

This approach is not required under 

part 139, but it is an acceptable means 

of compliance as long as the tenant or 

contractor complies with the part 139 

requirements. If compensation is 

required for such services, it is a matter 

for the airport operator to negotiate with 

the tenant or contractor. 

Comment: Three commenters state 

that the requirement to have on-airport 

ARFF that must respond within a 

specified time period will be an 

unreasonable financial burden on a 

small town and would adversely affect 

the air carrier service into such 

communities. Depending on the 

location of the aircraft emergency, one 

commenter notes that off-airport 

emergency personnel might be in a 

better position to respond, especially if 

the incident is located off the airport. 

FAA Response: The FAA disagrees. 

The requirement of paragraph (a) 

specifies that the certificate holder shall 

provide ARFF services on the airport 

during air carrier operations. This does 

not require the airport operator to 

ensure such services are on the airport 

at all times. Depending on the frequency 

of air carrier services, an airport 

operator may, and many do, arrange for 

ARFF services with the off-airport fire 

station. This type of arrangement is 

acceptable so long as off-airport ARFF 

services are on the airport 15 minutes 

prior to and 15 minutes after air carrier 

operations. 

As noted in the proposal at 65 FR 

38663, certain airport operators that 

have arranged for the local fire 

department to occasionally come to 

their facilities to cover infrequent large 

air carrier aircraft operations will have 

to arrange for additional ARFF coverage 

for small air carrier aircraft operations. 

Since small air carrier aircraft 

operations tend to be more frequent at 

such airports, ARFF services may be 

needed more often than the local fire 

department can provide. 

If the certificate holder and the FAA 

cannot develop a reasonable alternative 

means of compliance, the certificate 

holder may ask the FAA to grant an 

exemption under § 139.111 or in the 

case of a Class III airport, propose an 

alternative means of compliance with 

ARFF requirements under § 139.315(e) 

that may eliminate the need for offairport emergency to comply with a 

timed response. 

Comment: A commenter states that 

part 139 airports should be required to 

have annual ARFF training at one of the 

regional training facilities funded by the 

FAA that use propane fire simulators. 

The commenter does not support airport 

operators using fossil fuel fires for such 

training because of the environmental 

impact and lack of repeatable training

6404 Federal Register / Vol. 69, No. 27 / Tuesday, February 10, 2004 / Rules and Regulations 

scenarios needed to develop firefighting 

skills. The commenter also states that 

the cost of ARFF training for airports 

with less than 500,000 annual 

enplanements should be AIP eligible. 

FAA Response: The FAA disagrees. 

Regional ARFF training centers are only 

one option available for complying with 

the fire training requirements of 

§ 139.319(i)(3). Airport operators may 

have other alternatives to comply with 

this requirement that are less costly or 

more convenient. 

Regarding the funding of ARFF 

training costs, Congress would have to 

amend the AIP authorizing statute 

before AIP funds may be used for ARFF 

training. As of the date of the 

publication of this final rule, ARFF 

equipment is AIP-eligible only if such 

equipment is required under part 139 or 

if the FAA has determined that it will 

contribute significantly to the safety or 

security of persons or property at an 

airport.

Comment: A commenter states that 

the amount of time to comply with the 

requirements of this section should be 

extended to allow airport operators to 

secure funds, hire personnel, purchase 

equipment, and build facilities. 

FAA Response: The FAA agrees 

additional compliance time is warranted 

and has amended paragraph (m) to 

allow Class II, III, and IV airport 

operators an additional year to comply. 

These airport operators now have 3 

years from the effective date of this rule 

to comply with this section or request 

an exemption under § 139.111(b). On a 

case-by-case basis, the FAA may 

consider granting additional time to 

those airport operators that petition 

under § 139.111(a) for additional time. 

Comment: A Class III airport operator 

states that the cost of reconstructing the 

emergency access road required under 

§ 139.319(k) would be unreasonable. 

This commenter explains that one 

section of the existing emergency access 

road surrounding the airfield is 

impassable for many months of the year 

due to washouts and drifted snow. The 

commenter states the cost of 

reconstructing the road so it can be 

maintained and plowed during winter 

months is estimated at $500,000. 

FAA Response: The FAA agrees that 

it is possible the commenter may have 

to renovate its emergency access road to 

comply with the requirements of this 

section. If the FAA determines such 

renovation is necessary for the purposes 

of part 139, 90 percent of the cost would 

be eligible for AIP funds. Should AIP 

funds not be readily available, or the 

airport operator does not have matching 

funds, the certificate holder could ask 

for an exemption under § 139.111. In 

addition, the FAA has added language 

to § 139.315 that allows the holder of a 

Class III Airport Operating Certificate to 

comply with ARFF requirements by 

alternative means that may not require 

the commenter to maintain an 

emergency access road (see discussion 

under § 139.315(e), Aircraft Rescue and 

Firefighting: Index determination). 

Comment: A commenter states that 

proposed training for emergency 

medical personnel is excessive. This 

commenter points out that such 

personnel in its State are only required 

to receive 40 hours of training every 3 

years. The commenter questions the 

purpose of requiring more training than 

what is required by the local 

organization that regulates emergency 

medical personnel. The commenter 

requests that the recurrent training 

requirement be the same as required by 

the local organization. 

FAA Response: The FAA agrees. The 

requirement for annual recurrent 

training for emergency medical 

personnel has been deleted from 

paragraph (i)(4). Language requiring 

such personnel to be trained and remain 

current in basic emergency medical 

services will remain the same. This will 

ensure emergency medical personnel 

receive recurrent training but at the 

same frequency required by the local 

regulating organization. 

Comment: A Class I airport operator 

states that while it supports the 

continuous training of ARFF personnel, 

the proposal’s statement regarding 

continuous training will affect how 

firefighters are trained at other 

certificated airports. This commenter 

explains that the current regulation 

could be interpreted to mean that an 

airport operator could comply with 

§ 139.319(i) by training ARFF personnel 

only once a year. However, the proposal 

states that the FAA would not expect 

ARFF personnel to comply with training 

requirements with only a once-a-year 

training course. The commenter notes 

that it has a continuous training 

program for its ARFF personnel, but if 

continuous training is mandated, other 

airport operators may need more 

personnel and equipment. 

FAA Response: The FAA disagrees. 

Continuous training is not required 

under § 139.319(i). The statement in the 

proposal (65 FR 38653) was intended 

only to encourage ongoing training. As 

long as ARFF personnel are trained on 

the subject areas specified under 

paragraph (i), the certificate holder has 

the discretion to provide this training in 

a manner that best suits its needs. 

The FAA disagrees that in all 

instances continuous ARFF training will 

require additional personnel and 

equipment. Many airport operators find 

this approach provides better training 

results and is more cost effective. These 

airport operators use their existing 

airport personnel, or a combination of 

airport personnel and those of the local 

fire department, to conduct training 

sessions throughout the year. This 

minimizes travel costs often associated 

with one-time training courses, and 

since training sessions are shorter, it 

reduces the time personnel are 

unavailable for ARFF duties. 

Comment: A commenter requests 

clarification on the relationship between 

the response requirements of 

§ 139.319(h) and those proposed in 

§ 139.321, ARFF: Exemptions. Referring 

to prearranged firefighting and basic 

emergency medical response required as 

a condition for an exemption under 

proposed § 139.321, this commenter 

questions how the FAA will inspect for 

the response requirements of paragraph 

(h) if the airport operator was granted an 

exemption from ARFF requirements 

under proposed § 139.321. 

FAA Response: The FAA agrees. The 

requirements for requesting an ARFF 

exemption have been moved to 

§ 139.111 and modifications made to the 

conditions under which the FAA will 

consider granting an exemption (see 

section-by-section analysis of 

§ 139.111). 

The FAA will not require a certificate 

holder to comply with a part 139 

requirement if the airport operator has 

been granted an exemption from that 

requirement. In granting an exemption 

from ARFF requirements, the FAA 

requires the certificate holder to provide 

certain data. The exemption, plus any 

conditions, would be included in the 

ACM. During an inspection, the FAA 

will verify that the circumstances that 

required the exemption are still 

applicable and that the certificate holder 

is complying with any conditions 

required by the exemption. 

Comment: A commenter states that 

many of the small communities that 

operate Class III airports rely on 

volunteer firefighters and the proposed 

requirements would require these 

communities to recall volunteers, or to 

supplement regular full-time airport 

employees, several times a day to cover 

air carrier flights. The commenter 

believes this would be ‘‘a significant 

burden with questionable benefit’’ for 

such airports. As an alternative, the 

commenter suggests modifying required 

ARFF response times for Class III airport 

operators to allow all required ARFF 

vehicles at such airports to utilize the 

secondary response time specified in 

paragraph (h)(2)(ii) as their primary 

response time.

Federal Register / Vol. 69, No. 27 / Tuesday, February 10, 2004 / Rules and Regulations 6405

FAA Response: The FAA disagrees. 

The ARFF performance times that the 

commenter refers to require at least one 

mandatory ARFF vehicle to respond to 

the midpoint of the farthest air carrier 

runway within 3 minutes of an alarm 

and within 4 minutes of an alarm for all 

other required vehicles. This secondary 

time is what the commenter suggests 

should be the standard for all 

responding ARFF vehicles at Class III 

airports.

The FAA believes that the 

requirement for at least one ARFF 

vehicle to respond within 3 minutes of 

an alarm will not be burdensome for 

Class III airport operators. These 

airports typically have simple pavement 

configurations that allow ARFF vehicles 

to reach the midpoint of the farthest 

runway within the required time from 

their standby positions. It is from this 

standby position that ARFF 

performance times are measured. 

Instead, Class III airport operators are 

more likely to have difficulty arranging 

for ARFF coverage to be available at a 

standby location 15 minutes before and 

after all covered air carrier operations. 

As discussed previously, an airport 

operator that is unable to comply with 

any ARFF requirement, including 

vehicle readiness or performance times, 

may petition for an exemption from 

such requirements under § 139.111. 

Comment: A commenter states that 

paragraph (i) that prescribes 

requirements for ARFF personnel 

contains vague language. This 

commenter recommends removing or 

clarifying this paragraph. 

FAA Response: The FAA disagrees. 

The language of paragraph (i) ensures 

that ARFF personnel are trained in 

certain subjects and allows some 

flexibility to address the diversity of 

airports certificated under part 139. 

Training ARFF personnel at airports 

required to comply with Index E ARFF 

requirements may be more complex 

than training ARFF personnel at an 

airport that complies with Index A 

requirements. In addition, this 

flexibility allows the airport operator to 

incorporate training required by the 

state or local municipality. 

However, the FAA will forward the 

commenter’s concerns on ARFF training 

requirements to the ARAC. As discussed 

earlier, the ARAC has accepted the task 

to review part 139 ARFF standards. 

Section as Adopted: This section is 

adopted with changes. For reasons 

discussed above, the requirement for 

annual recurrent training for emergency 

medical personnel has been deleted 

from proposed § 139.319(i)(4), and 

paragraph (m) has been modified to 

allow Class II, III, and IV airport 

operators an additional year to comply 

with the requirements of this section. 

Several additional modifications were 

made to this section. A new requirement 

for a vehicle communication method 

has been added to paragraph (e) that 

requires personnel to have contact with 

the common traffic advisory frequency 

when an air traffic control tower is not 

in operation or when there is no tower. 

This change is consistent with other 

radio communication requirements 

contained in part 139. Minor changes 

also were made to paragraphs (e)(1) and 

(4) for clarity, and the redundant phrase 

‘‘if it is located on the airport’’ was 

deleted from paragraph (e)(2). 

Additionally, the reference to 

proposed § 139.341, Airport condition 

reporting, in paragraph (g)(3) has been 

revised to correspond to revisions made 

to the section numbering throughout 

subpart D. 

Modifications also were made to 

training requirements contained in 

paragraph (i). Language has been added 

to paragraph (i)(2)(i) to clarify that 

airport familiarization training shall 

cover airport signs, marking, and 

lighting. Paragraph (i)(3) was revised to 

clarify that training involving an actual 

fire must be completed prior to initial 

performance of ARFF duties, and 

paragraph (i)(4) was changed to allow an 

individual other than the required ARFF 

personnel to provide basic emergency 

medical services. 

Finally, a new sentence has been 

added to paragraph (j) noting that the 

certificate holder may contact the FAA’s 

Regional Airports Division Manager 

about obtaining a copy of the ‘‘North 

American Emergency Response 

Guidebook.’’ The FAA anticipates that 

this guidebook will be available in both 

hardcopy and electronic form. 

New Section 139.321 Handling and 

Storing of Hazardous Substances and 

Materials (Proposed § 139.323) 

Proposal: In the proposal, § 139.321, 

ARFF: Exemptions, contained 

procedures for requesting an exemption 

from ARFF requirements. As discussed 

earlier, proposed § 139.321 has been 

withdrawn and all requirements for 

petitions of exemption are now 

contained in § 139.111. Consequently, 

all following sections have been 

redesignated, and comments received 

on these sections are discussed under 

the new section numbers. 

New § 139.321 (proposed § 139.323) 

contained existing requirements for 

certain airport operators to establish and 

implement procedures for the safe 

storage and handling of aviation fuel 

and, when the airport operator is acting 

as a cargo agent, of hazardous materials 

regulated under 49 CFR part 171. This 

section also required the certificate 

holder to conduct quarterly inspections 

of certain fueling agents. Generally, the 

proposal did not change these 

requirements, and all classes of airports 

were required to comply. 

Several minor changes were 

proposed. The term ‘‘grounded’’ was 

deleted from paragraph (b)(1), 

eliminating the need for fueling agents 

to connect aircraft to a static wire during 

fueling operations. Paragraph (b)(6) was 

modified to delete an implementation 

date that has already passed. In its 

place, a new requirement was proposed 

requiring operators of proposed Class III 

airports to complete specified training 

within 1 year. 

Existing requirements in paragraph (e) 

also were modified to include 

requirements for recurrency training for 

fueling agent supervisors and 

employees, and paragraph (h) was 

deleted to clarify that the requirements 

of § 139.321 are applicable to air carrier 

fuel storage areas located on the airport. 

Subsequently, existing paragraph (i) 

became new paragraph (h). In addition, 

the reference to a specific AC series 

number in existing paragraph (i) (new 

paragraph (h)) was revised. 

Comment: A commenter states its 

support for the deletion of the 

grounding requirement. This 

commenter, the National Fire Protection 

Association (NFPA), notes this change 

was the result of changes made 10 years 

ago to NFPA 407, Standard for Aircraft 

Fuel Serving. The NFPA recommends 

the FAA require compliance with NFPA 

consensus standards through periodic 

rulemakings to avoid similar delays and 

provide state-of-the-art safety for the 

traveling public. 

FAA Response: The FAA partly 

agrees. The FAA will continue to review 

the NFPA standards for possible use as 

national standards under part 139. 

However, the FAA cannot commit to the 

adoption of a particular NFPA (or other) 

standard in advance of that review. Not 

all local governments use the NFPA 

standards, and the FAA will continue to 

review each NFPA standard for 

suitability for Federal use. 

Comment: A commenter disagrees 

with the FAA’s characterization of the 

ARAC working group’s majority opinion 

regarding compliance with this section. 

FAA Response: The FAA disagrees 

that it has mischaracterized the ARAC 

majority opinion. The majority of the 

ARAC Commuter Airport Certification 

Working Group recommended that 

airports serving small air carrier aircraft 

not be required to comply with this 

section (see ARAC Commuter Airport 

Certification Working Group Final

6406 Federal Register / Vol. 69, No. 27 / Tuesday, February 10, 2004 / Rules and Regulations 

Report, page IV–3). As noted in the 

proposal (65 FR 38655), the ARAC 

majority recommended that the FAA 

only require smaller facilities to meet 

local fire codes pertaining to storage and 

handling of hazardous substances and 

materials.

Comment: A commenter recommends 

deleting requirements for an airport 

operator to oversee fueling operations, 

unless the airport operator is the fueling 

agent. Fueling operations at this 

commenter’s airport are provided by the 

FBO and the commenter states that the 

airport staff are not trained in the 

operation and maintenance of fueling 

facilities or in aircraft fueling 

operations. This commenter also notes 

that the proposal contained no 

justification for airport operators to 

inspect fueling operations, and the cost 

to comply outweighs the benefit. 

FAA Response: The FAA disagrees. 

Airport operators certificated under part 

139 already comply with the 

requirements of this section and have 

not reported it to be burdensome or 

costly. As discussed in the proposal (65 

FR 38655), the requirements of this 

section are common safety measures 

and were developed as a result of a 

cooperative effort between the FAA, 

airport operators, and FBO’s, and have 

been successfully used for many years 

by airport operators and aircraft fuelers 

nationwide. 

It is not necessary for airport 

personnel who conduct inspections of 

tenant fueling operations to be trained 

in fueling operations or maintenance. 

Such personnel need only to be familiar 

with the airport operator’s standards for 

fuel fire safety. Such standards tend to 

be common housekeeping practices that 

airport personnel should already be 

familiar with as they are required by 

local fire codes and are often required 

by liability insurance carriers. For 

example, such standards could require 

fuel storage areas to be kept clean of 

litter, vegetation, and other 

combustibles and fire extinguishers to 

be fully charged. 

Comment: A commenter states that 

additional training costs will be 

incurred for FBO personnel if the FBO’s 

existing training does not comply with 

proposed training requirements. 

FAA Response: The FAA agrees that 

a few airport operators may have to 

reimburse their tenants for training 

costs. The responsibility for such 

training costs will depend on the lease 

agreement between the airport operator 

and the FBO. Such agreements typically 

contain provisions that the FBO will 

ensure its employees are trained. 

Most FBOs already use training 

programs that are approved by the FAA. 

The FAA has evaluated available fuel 

safety training courses and publishes a 

list of approved courses. The FAA 

periodically evaluates these training 

courses to ensure they continue to meet 

certain teaching and testing criteria and, 

on request, will evaluate new training 

courses. Currently, 12 fuel safety 

training courses are acceptable to the 

FAA, including several courses 

sponsored by airport operators. 

Comment: A commenter states that 

the industry should assist the FAA in 

developing guidance for recurrent 

training for fueling personnel to ensure 

such training does not become an 

unnecessary burden on fueling 

operations. 

FAA Response: As noted in the 

proposal (65 FR 38655), fuel fire safety 

standards were developed as a result of 

a cooperative effort between the FAA, 

airport operators, and FBOs. If advisory 

material is needed during the 

implementation of new training 

requirements of this section, the FAA 

anticipates developing such materials in 

much the same manner. 

However, the FAA does not anticipate 

that compliance with recurrent training 

requirements will be so complex as to 

require advisory materials. As required 

under paragraph (b), recurrent training 

need only cover the same subject areas 

as initial training. This would include 

any changes to fuel fire safety standards 

and procedures that have occurred since 

the individual’s initial training. 

Comment: A commenter requests the 

FAA change the requirement for 

recurrent training for employees who 

handle fueling operations to every 24 

consecutive calendar months rather the 

12-month requirement proposed. This 

commenter states that there is no 

justification for a more restrictive 

requirement than that imposed on the 

fueling supervisor and would be more 

consistent with other FAA requirements 

for private pilots and mechanics. 

FAA Response: The FAA agrees and 

has amended paragraph (e)(2) to require 

recurrent training every 24 months 

rather than every 12 months. 

Comment: A commenter recommends 

that the FAA amend the last sentence of 

paragraph (e)(1) to include the phrase 

‘‘or enrolled in an authorized aviation 

fuel training course that will be 

completed within 90 days.’’ The 

commenter states that the proposed 

supervisor training requirement would 

not allow for loss of a trained supervisor 

due to normal attrition. The commenter 

reasons this modification would allow 

fueling operations to continue 

uninterrupted until a new supervisor 

could be trained. 

FAA Response: The FAA agrees and 

has amended paragraph (e) as suggested.

Comment: Two commenters state 

their support of changes made to this 

section, particularly changes to enhance 

safety of air carrier fuel storage areas. 

However, both commenters note that the 

FAA does not hold air carriers 

accountable for the safety of their fuel 

storage areas and recommend that the 

FAA require air carriers to inspect and 

maintain these areas. 

FAA Response: The FAA agrees that 

air carrier fuel storage areas should be 

safe. Under this revised section, the 

FAA holds the airport certificate holder 

responsible through its relationship 

with its tenant air carriers, for protecting 

against fire and explosion in air carrier 

fuel storage facilities. 

Rather than have separate fuel storage 

requirements for air carriers and airport 

operators, the FAA has determined that 

existing part 139 fuel storage safety and 

inspection standards can be applied at 

all such storage facilities located at part 

139 airports. This approach will ensure 

that all fuel storage facilities at part 139 

airports are inspected in the same 

manner and held to the same standards. 

Comment: A commenter recommends 

that the FAA should consider 

compliance with local fire codes and 

NFPA standards by fuel service 

providers as an alternate method of 

compliance. This commenter also 

recommends that the FAA should 

consider the role of the local fire 

marshal in performing inspections. 

FAA Response: The FAA agrees. The 

FAA already allows for these methods 

of compliance. Under paragraph (b), the 

airport operator is required to 

incorporate the local fire code in its 

standards for protecting against fuel 

fires. If local fire codes do not address 

the subject areas specified in paragraph 

(b), the airport operator will have to 

develop additional procedures. The 

airport operator may develop 

procedures unique to its facility or 

adopt industry standards, such as NFPA 

standards. 

In addition, the airport operator has 

the discretion to use either its own 

personnel to conduct inspections or an 

independent organization or person, 

such as the fire marshal. At some part 

139 airports, the local fire department is 

actively involved in aircraft fuel fire 

safety and has arranged for ARFF 

personnel to conduct fuel fire safety 

inspections and to provide fire safety 

training for fueling and airport 

personnel. 

Section as Adopted: This section has 

been adopted with changes. As 

discussed earlier, proposed § 139.321 

has been deleted and the proposed

Federal Register / Vol. 69, No. 27 / Tuesday, February 10, 2004 / Rules and Regulations 6407

§ 139.323 has been redesignated as 

§ 139.321. In addition, paragraphs (e)(1) 

and (2) have been modified to allow 

additional time for training of fueling 

personnel. Fueling agent supervisors 

now have 90 days to complete initial 

training, and fueling personnel need 

only to complete recurrent training 

every 24 months rather than every 12 

months. 

To clarify that the requirements of 

this section pertain to aircraft fueling 

operations, the words ‘‘lubricants’’ and 

‘‘oxygen’’ have been deleted from 

paragraph (b). In addition, a 

requirement for using an independent 

organization to perform inspections has 

been moved to § 139.303, Personnel, 

and a new sentence was added to 

paragraph (f). This new sentence 

clarifies how long the certificate holder 

is required to maintain fueling agents’

training records. 

New Section 139.323 Traffic and Wind 

Direction Indicators (Proposed 

§ 139.325) 

Proposal: This section prescribed 

conditions that require a certificate 

holder to provide a wind cone, a traffic 

pattern indicator, and the standards for 

these devices. While changes were 

proposed to these standards, a 

certificate holder was still required to 

provide traffic and wind indicators 

(such as windsocks) at specific locations 

on the airport and for certain night and 

uncontrolled traffic operations. 

Operators of all proposed airport classes 

were required to comply with this 

proposed section. 

References to Class B airspace were 

deleted and replaced by language 

requiring all certificate holders to install 

supplemental wind cones adjacent to 

runway ends where the primary wind 

cone is not visible to a pilot on final 

approach or during takeoff. In addition, 

standards for segmented circles and 

supplemental wind cones were revised, 

as well as standards for traffic indicators 

at airports without a control tower. 

Changes also were proposed to clarify 

that airport operators must comply with 

the requirements of this section in a 

manner satisfactory to the FAA and that 

ACs contain methods of compliance that 

are acceptable to the Administrator. 

Finally, the section number was 

changed to new § 139.325 from 

proposed § 139.323. 

Comment: Several commenters 

support the changes to this section. One 

of these commenters fully supports the 

proposal for supplemental wind cones 

to be installed at runway ends at all 

certificated airports, rather than just at 

airports located within Class B airspace. 

FAA Response: The FAA agrees. 

Comment: Two commenters note a 

discrepancy between this section’s 

criteria that determine if a certificate 

holder must light a wind direction 

indicator and the requirements of 

proposed § 139.311, Marking, signs, and 

lighting, for a lighting system. These 

commenters state that proposed 

§ 139.311 requires a lighting system for 

air carriers during times when the 

airport is open at night while proposed 

§ 139.325, Traffic and wind direction 

indicators, requires the lighting of wind 

direction indicators during hours of 

darkness. 

FAA Response: The FAA agrees. The 

term ‘‘night’’ will be used in both 

sections, as defined in 14 CFR part 1. 

Section 139.323(a) has been amended to 

specify that if the airport is open for air 

carrier operations at night, rather than 

during hours of darkness, then wind 

direction indicators must be lighted. 

Section as Adopted: This section is 

adopted with changes, and the section 

number was changed back to § 139.323. 

For the reason discussed above, the 

phrase ‘‘during hours of darkness’’ has 

been replaced by the term ‘‘night.’’ In 

addition, the first sentence of this 

paragraph has been reordered, and the 

phrase ‘‘available for air carrier use’’ has 

been included to clarify that the 

requirements of this paragraph are 

applicable only to runways used by air 

carriers. The term ‘‘maintain’’ also has 

been added to the first sentence of this 

section to ensure consistency with the 

wording of paragraph (c). 

Further, paragraph (b) has been 

modified. The last sentence of this 

paragraph was proposed in an effort to 

align part 139 requirements with the 

existing FAA guidance provided to 

pilots on visual indicators at airports 

without control towers. However, this 

change would have inadvertently 

required some airport operators to move 

their primary windsock if it was not 

located at the end of a runway. This was 

not intended. To correct this error, the 

last sentence of paragraph (b) has been 

deleted and the phrase ‘‘around a wind 

cone’’ has been added to the first 

sentence. This addition will ensure the 

required landing strip and traffic pattern 

indicator will be located around a wind 

cone, wherever that wind cone may be 

located.

A change also has been made to 

paragraph (c). The term ‘‘standards’’ has 

been replaced by the term ‘‘procedures.’’

This change corresponds to changes 

made throughout the regulation to 

adjust language referring to ACs. 

New Section 139.325 Airport 

Emergency Plan (Proposed § 139.327) 

Proposal: This section contained 

existing standards for the development, 

implementation, and testing of an 

airport emergency plan. Requirements 

for Class I airport operators remained 

relatively unchanged. New requirements 

were proposed for Class II, III, and IV 

airport operators that would be required 

for the first time to develop and test an 

airport emergency plan. 

Changes were made to update 

emergency response requirements to 

include large fuel fires and hazardous 

materials incidents and to ensure that 

all response measures accommodate the 

largest air carrier aircraft serving an 

airport. In addition, an alternative for an 

emergency alarm system was proposed, 

and clarifications were made to 

requirements pertaining to water rescue 

situations and coordination with the air 

traffic control tower. 

Testing requirements for Class I 

airport operators remained the same. 

New testing requirements were 

proposed for Class II, III, and IV airport 

operators that did not require a triennial 

emergency exercise. 

A new requirement was also proposed 

to allow Class II, III, and IV airport 

operators 1 year from the effective date 

of the rule to submit their emergency 

plans to the FAA for approval. 

Additionally, the section number was 

changed to new § 139.325 from 

proposed § 139.327, and references to 

advisory circulars were revised. 

On July 17, 2001, the FAA published 

a final rule revising 14 CFR part 107, 

Airport Security (66 FR 37274). This 

final rule became effective November 

14, 2001. The part 107 final rule 

contained a minor revision to current 

§ 139.325, Airport emergency plan. 

The part 107 final rule added a new 

paragraph (h) to § 139.325 and the 

existing paragraph (h) was redesignated 

as paragraph (i). This revision ensures 

that emergency response procedures to 

hijack and sabotage incidents contained 

in the airport emergency plan are 

consistent with the approved airport 

security program required under part 

107. Comments on this revision were 

addressed in the part 107 final rule (66 

FR 37308). [Note: Part 107 has been 

transferred to Transportation Security 

Administration (TSA) regulations under 

49 CFR 1500 et seq.] 

Comment: Five commenters support 

changes made to this section, 

particularly revisions requiring a 

response to large fuel fires and 

hazardous materials incidents. 

FAA Response: The FAA agrees. 

Comment: An airport association 

comments that the flexibility offered in

6408 Federal Register / Vol. 69, No. 27 / Tuesday, February 10, 2004 / Rules and Regulations 

this section allows smaller airports the 

opportunity to develop and maintain an 

airport emergency plan that will be 

appropriate to the type of air carrier 

operations served. 

FAA Response: The FAA agrees. 

Comment: A commenter states it is 

reasonable to require Class II, III, and IV 

airport operators to conduct only annual 

tabletop reviews of their airport 

emergency plans. This commenter notes 

that ‘‘many small airports with limited 

funding appreciate recognition by the 

FAA and Air Transport Association that 

the cost of conducting triennial a fullscale exercise can be unduly 

burdensome.’’

FAA Response: While the FAA agrees 

with the commenter’s statement 

regarding annual tabletop reviews, it 

does not agree that triennial full-scale 

exercises are unduly burdensome for all 

small airport operators. 

Comment: Four commenters request 

that all certificate holders be required to 

hold triennial full-scale emergency 

exercises. One of these commenters, the 

American Association of Airport 

Executives, states that ‘‘an emergency 

plan exercise every 36-months is a 

reasonable expectation in the testing of 

an airport emergency plan.’’ Another 

commenter suggests that the FAA 

require Class II, III, and IV airports to 

conduct full-scale emergency exercises 

every 5 years and tabletop reviews every 

2 years. This commenter states that 

annual reviews alone cannot satisfy 

emergency coordination and response. 

FAA Response: The FAA agrees that 

triennial full-scale emergency exercises 

are beneficial, but disagrees that all 

certificate holders should be required to 

hold such exercises. The cost of such 

exercises for smaller airports, and the 

local community that participate in 

these exercises, must be considered in 

evaluating the benefit. 

Comment: A Class I airport operator 

recommends that certificate holders 

should be required to include in their 

water rescue plans provisions for rescue 

vehicles that have a combined capacity 

for handling the maximum number of 

passengers on the largest aircraft serving 

the airport. 

FAA Response: The FAA agrees. 

Paragraph (a)(3) was proposed to ensure 

that all emergency procedures, 

including water rescue, are appropriate 

to the largest air carrier aircraft the 

airport operator could be reasonably 

expected to serve. However, this 

paragraph will be revised to use ARFF 

Index as the criteria for determining 

emergency response capability rather 

than the largest aircraft that could be 

served. This change will ensure that 

emergency planning and response 

requirements are consistent throughout 

part 139. 

Comment: One commenter states 

support for the ARAC Commuter 

Airport Certification Working Group 

recommendation that Class II, III, and IV 

airport operators include in their annual 

tabletop review discussions of staging 

areas and perimeter security that will be 

used during emergency situations and to 

conduct an airfield tour. 

FAA Response: The FAA agrees that 

staging areas and perimeter security 

should be discussed during an annual 

tabletop review. In most instances, 

airport operators must designate a 

staging area and arrange for perimeter 

security in order to comply with the 

requirements to paragraph (c). 

Accordingly, these issues are reviewed 

during both the annual review and, as 

appropriate, the triennial full-scale 

emergency exercise. 

Similarly, a field tour may be 

accomplished, although not specifically 

required, during an annual review. 

Paragraph (g)(4) requires the certificate 

holder to review its emergency plan 

with all involved parties to ensure they 

know their responsibilities under the 

plan. A field tour may be one means of 

compliance used by the certificate 

holder to ensure that certain parties who 

would be required in an emergency to 

drive on the airport or respond to a 

predesignated staging area understand 

their responsibilities. 

Comment: Two commenters, both 

Class III airport operators, state that it 

may be difficult to comply with the 

requirements of this section. One of 

these commenters explains that the 

local community has an emergency 

preparedness plan, but the plan is not 

airport specific. If the requirements of 

this section and AC 150/5200–31, 

Airport Emergency Plan, require more 

than a modest update, this commenter 

estimates it would cost $3,000 to $5,000 

to rewrite the plan. The other 

commenter states that without outside 

help or additional airport staff, the 

airport emergency plan required under 

this section and AC 150/5200–31 would 

be difficult to develop, maintain, and 

exercise.

FAA Response: The FAA partly 

agrees. Revising a local emergency 

preparedness plan may take some time, 

particularly to coordinate mutual aid 

agreements with local emergency and 

medical services. Likewise, staff time 

will be required to annually review the 

plan. How much time will, of course, 

vary from airport to airport and will 

depend on the availability of local 

emergency services. Such 

considerations were evaluated in the 

proposal’s cost evaluation (see the 

Regulatory Evaluation). This evaluation 

also assumed that all Class II, III, and IV 

airport operators would have no existing 

emergency plan from which to develop 

their own emergency plan. 

Building upon an existing emergency 

preparedness plan will considerably 

reduce the time it takes to create an 

airport emergency plan. Further, such a 

revised plan does not need to conform 

to AC 150/5200–31. This AC merely 

provides guidance on the development 

of an airport emergency plan using 

Federal Emergency Management 

Administration’s guidelines for 

emergency preparedness. Neither is 

mandatory. As long as such a revised 

community plan meets the requirements 

of this section, the airport operator may 

develop its plan in any manner that it 

chooses. 

Additionally, the FAA is not requiring 

an airport operator to use a consultant 

to develop its airport emergency plan. If 

an airport operator decides to develop 

its own emergency plan, FAA resources 

are available to simplify this process. 

The FAA airport certification and safety 

inspectors are available via telephone or 

e-mail to provide guidance on the 

development and testing of an airport 

emergency plan, and they have samples 

of approved plans. For many years, 

these inspectors have assisted Class I 

airport operators in the development 

and testing of their emergency plans and 

have often served as evaluators during 

triennial full-scale emergency exercises. 

In addition, many states and local 

municipalities have emergency 

coordinators that may be able to assist 

airport operators develop their plans. 

Section as Adopted: This section is 

adopted with changes. As discussed 

above, § 139.325(a)(3) has been 

modified. The phrase ‘‘that the airport 

reasonably can be expected to serve’’

has been changed to ‘‘in the Index 

required under § 139.315.’’ In addition, 

the time allowed for compliance in 

paragraph (j) has been extended from 12 

months to 24 months. The section 

number also has been changed to new 

§ 139.325 from proposed § 139.327, and 

several administrative edits have been 

made throughout the section. 

As discussed earlier, a new paragraph 

has been added to incorporate an 

amendment made to part 139 in the 

final rule revising 14 CFR part 107, 

Airport Security (66 FR 37274). This 

new paragraph is designated as 

paragraph (i) and references in the 

amendment to paragraph (b) that refer to 

hijack and sabotage incidents have been 

updated to reflect the changes made to 

paragraph (b). Subsequent proposed 

paragraphs (i) and (j) have been 

redesignated as new paragraphs (j) and

Federal Register / Vol. 69, No. 27 / Tuesday, February 10, 2004 / Rules and Regulations 6409

(k). In addition, references to 14 CFR 

part 107 have been revised to reflect 

changes made to FAA security 

regulations and the creation of the 

Transportation Security Administration. 

New Section 139.327 Self-inspection 

Program (Proposed § 139.329) 

Proposal: This section contained 

existing requirements for certificate 

holders to conduct daily inspections of 

the movement area to ensure the airport 

remains in compliance with part 139. 

Changes were made to how the 

certificate holder notifies air carriers of 

field conditions and document 

inspections. In addition, training 

requirements for individuals conducting 

airport inspections were revised, and 

language was added to permit airport 

inspections to be conducted by 

individuals other than employees of the 

airport operator. The section number 

also was redesignated from § 139.327 to 

§ 139.329, and language that was no 

longer applicable was deleted. 

All proposed airport classes were 

required to comply with this revised 

section. Class I, II, and IV airport 

operators were required to update 

existing self-inspection programs, and 

operators of proposed Class III airports 

were required to develop and 

implement a self-inspection program. 

Comment: Two commenters support 

training requirements for personnel 

conducting self-inspections. 

FAA Response: The FAA agrees. 

Comment: Two commenters support 

changes that will allow an airport 

operator to designate a third party to 

conduct inspections. One of these 

commenters notes that neither this 

section nor proposed § 139.303, 

Personnel, provides guidance on using a 

third party. 

FAA Response: The FAA agrees. 

Since the certificate holder can use a 

third party to comply with most part 

139 requirements, a new paragraph has 

been added to § 139.303 that details the 

requirements a certificate holder must 

meet in order to use a third party (see 

section-by-section analysis of 

§ 139.303). This new paragraph contains 

a requirement, found in existing 

§ 139.321, Handling and storage of 

hazardous substances and materials, 

paragraph (d), that specifies that the 

certificate holder can use an 

independent organization to conduct 

inspections of tenant fueling facilities. 

This paragraph has been moved to 

§ 139.303 and has been modified so that 

it now applies to any part 139 

requirement. Consequently, the term 

‘‘designee’’ has been deleted from 

§ 139.327(a). 

This new paragraph in § 139.303 still 

requires that the FAA approve any such 

arrangement. In addition, the certificate 

holder is required to ensure that the 

third party’s duties and responsibilities 

are included in the ACM and that 

records are maintained to document the 

third party’s compliance with part 139 

and the ACM, including training 

activities. 

Comment: A commenter states that 

paragraph (b)(3) detailing training 

subject areas is too vague and requires 

clarification. Specifically, the 

commenter is unclear if this paragraph 

requires additional training for airport 

operations staff and recommends 

additional clarification of recurrent 

training standards. 

FAA Response: The FAA agrees that 

some training required under this 

section is redundant to training required 

under § 139.303. This overlap is 

intentional so that all requirements for 

conducting self-inspections are 

contained in one section. Training 

completed to comply with § 139.303 can 

be used to meet this section’s training 

requirements. 

In addition, the FAA agrees that 

changes are needed to clarify the 

frequency of training. Modifications 

have been made to paragraph (b) to 

clarify that personnel must receive both 

initial and recurrent training in the 

specified subject areas and that 

recurrent training is required every 12 

months.

Comment: A commenter notes that 

the recurrent training required for 

personnel conducting self-inspections is 

redundant for duties that its operations 

staff completes on a daily basis. 

FAA Response: The FAA disagrees. 

As discussed in section-by-section 

analysis of § 139.303, the FAA believes 

personnel that perform their duties on a 

daily basis can benefit from recurrent 

training. Recurrent training helps ensure 

that all employees continue to perform 

their duties correctly and safely. 

Comment: A commenter opposes new 

requirements for formalized training 

and recordkeeping, stating that these 

requirements are unnecessary and 

burdensome. This commenter states that 

the regulation already requires the 

certificate holder to ensure it remains 

compliant with the part 139 and the 

ACM. The commenter believes this 

requirement alone will ensure selfinspections are done correctly. In 

addition, this commenter believes that 

annual FAA inspections ensure 

compliance without the need for 

burdensome recordkeeping and 

recurrent training programs. 

FAA Response: The FAA disagrees 

with the commenter that new selfinspection training and recordkeeping 

requirements will be burdensome and 

unnecessary. The FAA believes most 

certificate holders already comply with 

this section and need only document 

existing training procedures. 

Also, similar to § 139.303, training 

required under this section does not 

have to be ‘‘formalized.’’ Paragraph 

(b)(3) does not specify how training 

must be conducted. This is intended to 

allow the certificate holder some 

flexibility in complying with training 

requirements in a manner best suited for 

local circumstances. As long as training 

covers the subject areas specified in 

paragraph (b), it could consist of on-thejob training, formal classroom lectures, 

an industry training conference, or some 

combination thereof. 

Section as Adopted: This section is 

adopted with changes. The section 

number has been changed back to 

§ 139.327, and for the reasons discussed 

above, the term ‘‘designee’’ has been 

deleted from paragraph (a), and 

paragraph (b) has been modified to 

clarify that personnel must receive both 

initial training and annual recurrent 

training. 

Several other changes were made 

throughout the section. Paragraph (b)(2) 

has been edited for clarity. Paragraph 

(b)(3)(iv) has been revised to reflect 

changes made to the title of § 139.329, 

and paragraphs (b)(3)(i) and (vi) have 

been combined. In addition, language 

deleted in the proposal was replaced in 

paragraph (b)(3). This language specifies 

that only qualified personnel can 

perform inspections and was 

unintentionally deleted. 

Changes were made to paragraph (c). 

New language was added that requires 

the certificate holder to maintain 

records for 24 months of training 

required under paragraph (b)(3). While 

this requirement was not discussed in 

the proposal, other similar 

recordkeeping requirements were, and 

this addition to paragraph (c) mirrors 

these requirements and is a logical 

outgrowth of what was proposed. 

Further, the FAA has determined that 

records of self-inspections should be 

retained in the same manner as airport 

condition reports, as required under 

§ 139.339. Therefore, the time airport 

operators must maintain self-inspection 

records has increased from 6 months to 

12 months. Although not proposed, this 

change will ensure the recordkeeping 

requirements in the two sections are 

consistent. 

In addition, the text ‘‘make available 

for inspection by the Administrator on 

request’’ has been deleted from 

paragraph (c). This requirement is 

redundant to the new recordkeeping

6410 Federal Register / Vol. 69, No. 27 / Tuesday, February 10, 2004 / Rules and Regulations 

requirements of § 139.301 that specify 

the certificate holder shall furnish, upon 

request by the FAA, all records required 

to be maintained under this part. 

New Section 139.329 Pedestrians and 

Ground Vehicles (Proposed § 139.331) 

Proposal: This section contained 

requirements for the certificate holder to 

limit access to movement areas to those 

ground vehicles necessary for airport 

operations. This section also required 

the certificate holder to ensure that 

employees, tenants, or contractors who 

operate ground vehicles in the 

movement area are familiar with 

established ground vehicle operating 

procedures. 

The requirements of this section 

remained relatively the same. Only 

minor modifications were proposed to 

clarify that the requirements of this 

section are implemented in a manner 

satisfactory to the FAA. All certificated 

airports serving scheduled air carrier 

operations (proposed Class I, II, and III 

airports) were required to comply with 

this section. The section number was 

changed from § 139.329 to proposed 

§ 139.331. 

Comment: A commenter supports the 

implementation of this section at 

smaller airports with the FAA’s 

acknowledgement that existing 

§ 139.329, Ground vehicles, paragraph 

(c) is only applicable at airports where 

an air traffic control tower is 

operational. 

FAA Response: The FAA agrees that 

existing § 139.329(c) is applicable only 

at airports where an air traffic control 

tower is operational. This criteria is 

stated in the first sentence of paragraph 

(c) and did not change in the proposal.

However, the commenter’s statement 

seems to imply that there is confusion 

regarding the requirements for two-way 

radio communications at airports 

without control towers or during times 

when the control tower in not 

operational. To clarify that in either 

instance prearranged signs or signals 

can be used in lieu of two-way radio 

communications, the first sentence of 

paragraph (d) has been modified to 

include the phrase ‘‘or there is no air 

traffic control.’’ The phrase ‘‘two-way 

radio communications’’ also has been 

added to this paragraph to clarify that 

operators of such airports have the 

choice of using either two-way radios or 

prearranged signs or signals. 

Comment: A commenter recommends 

revising paragraph (e) to require ground 

vehicle training that includes runway 

incursion prevention awareness. This 

commenter states that safe airside 

vehicle operations play a significant role 

in decreasing the hazards of runway 

incursions. 

FAA Response: The FAA agrees. Data 

collected by the FAA on runway 

incursions show that ground vehicles 

and pedestrians in movement and safety 

areas continue to be a cause of both 

runway incursions and surface 

incidents. To heighten awareness of this 

important safety matter, the FAA 

supports the commenter’s 

recommendation and has modified 

paragraphs (e) and (f) to specify training, 

rather than just familiarization, on 

procedures for the safe and orderly 

access to and operation in the 

movement area and to require records of 

such training. Additionally, this section 

has been expanded to included safety 

areas and pedestrian activity to ensure 

a comprehensive approach to 

preventing runway incursions and 

surface incidents. 

Section as Adopted: This section is 

adopted with changes. The section 

number has been changed back to 

§ 139.329, and for the reasons discussed 

above, paragraph (e) has been modified 

to specify training on procedures for the 

safe and orderly access to and operation 

in movement areas and safety areas. 

Correspondingly, paragraph (f) has been 

changed to require records of such 

training and that these records be 

maintained for 24 months. 

As discussed previously, the words 

‘‘pedestrian’’ and ‘‘safety area’’ have 

been added throughout the section and 

to the section title. This change now 

requires the certificate holder to 

establish and implement procedures for 

access to, and operation on, movement 

areas and safety areas by both 

pedestrians and ground vehicles. 

To clarify requirements for vehicle 

and pedestrian control at airports 

without control towers, paragraph (d) 

also has been modified to include the 

phrase ‘‘or there is no air traffic control’’

and ‘‘two-way radio communications.’’

New Section 139.331 Obstructions 

(Proposed § 139.333) 

Proposal: This section contained 

requirements for the lighting, marking, 

or removal of obstructions. Except for a 

change to the section number, the 

requirements of this section remained 

substantially the same. Certificate 

holders were still required to ensure 

that each object within its area of 

authority that penetrates imaginary 

surfaces, as provided in part 77, Objects 

Affecting Navigable Airspace, is 

removed, marked, or lighted. 

Changes were proposed to clarify that 

the requirements of this section must be 

implemented in a manner satisfactory to 

the FAA and that ACs contain some 

methods of compliance that are 

acceptable to the Administrator. All 

certificated airports serving scheduled 

air carrier operations (proposed Class I, 

II, and III airports) were required to 

comply with this revised section. Also, 

a change to the section number, from 

§ 139.331 to § 139.333, was proposed. 

Comment: No comments were 

received on this section. 

Section as Adopted: The section 

number has been changed to new 

§ 139.331 from proposed § 139.333. In 

addition, references to the terms 

‘‘imaginary surfaces’’ and ‘‘part 77’’

have been replaced by the phrase 

‘‘determined by the FAA to be an 

obstruction.’’ As noted in the proposal 

(65 FR 38650), references to 14 CFR part 

77 should have been deleted throughout 

part 139 as part 77 is being revised and 

may be reorganized. Accordingly, 

references to part 77 in this section have 

been replaced with a general statement 

that the FAA will determine if an object 

is an obstruction. Also, the first and 

second sentence of this section have 

been combined for clarity. 

New Section 139.333 Protection of 

NAVAIDS (Proposed § 139.335) 

Proposal: This section contained 

standards for the protection of 

navigational aids (NAVAIDS). Except 

for a change to the section number, the 

requirements of this section remained 

substantially the same and required the 

certificate holder to protect against the 

derogation of electronic or visual 

navigational equipment and air traffic 

control facilities located on the airport. 

This included protection against 

vandalism, theft, and construction that 

may cause interference. 

Changes were proposed to clarify that 

the requirements of this section must be 

implemented in a manner satisfactory to 

the FAA and that ACs contain some 

methods of compliance that are 

acceptable to the Administrator. All 

certificated airports serving scheduled 

air carrier operations (proposed Class I, 

II, and III airports) were required to 

comply with this revised section.

In addition, a change to the section 

number, from § 139.333 to § 139.335, 

was proposed. 

Comment: No comments were 

received on this section. 

Section as Adopted: The section 

number has been changed to new 

§ 139.333 from § 139.335. Otherwise, the 

section is adopted as proposed. 

New Section 139.335 Public Protection 

(Proposed § 139.337) 

Proposal: This section contained 

existing requirements for a certificate 

holder to prevent the inadvertent entry

Federal Register / Vol. 69, No. 27 / Tuesday, February 10, 2004 / Rules and Regulations 6411

of persons or vehicles to the movement 

area and to provide reasonable 

protection of persons and property from 

aircraft blast. All certificated airports 

serving scheduled air carrier operations 

(Class I, II, and III airports) were 

required to comply with this section. 

Comment: A commenter requests 

additional time for Class III airports to 

comply with this section. The 

commenter recommends that these 

airports be allowed 3 years after the 

effective date of the rule to comply 

because the cost of implementing this 

section will be high in small rural 

communities. No operational or 

financial data is provided to 

substantiate this claim. 

FAA Response: The FAA disagrees. 

The requirements of the section are 

intended to prevent the inadvertent

access by the public, which can be done 

quickly and for a relatively small cost. 

The FAA is unaware of any current 

certificate holders experiencing 

problems meeting this requirement, and 

the commenter did not provide any 

operational or cost data to suggest 

otherwise. 

Elaborate fencing, automated access 

control points, closed-circuit cameras, 

guards, etc. are not required to comply 

with this section. Existing measures, 

used by airport operators for theft and 

liability purposes, to keep the public out 

of movement areas will usually suffice. 

For example, if a public road dead-ends 

at the airport, the certificate holder 

could use a sign and wood barricade to 

alert the public not to enter. 

In addition, some airport operators 

that have accepted Federal funds may 

have obligations under their grant 

assurances to control the use of the 

airport in a manner that will eliminate 

hazards to aircraft and to people on the 

ground. Grant assurances require ‘‘an 

owner of an airport developed with 

Federal assistance to provide adequate 

controls such as fencing and other 

facilities to keep motorist, cyclists, 

pedestrians, and animals from 

inadvertently wandering onto the 

landing area or areas designated for 

aircraft for aircraft maneuvering.’’

Comment: Several commenters 

disagree with the FAA’s statement that 

there will be minimal or no incremental 

compliance cost for this section. One of 

these commenters states that it would 

cost $150,000 to comply with this 

section. This would include the cost to 

develop personnel identification media, 

provide personnel with security 

training, and install passenger-screening 

equipment in the terminal building. 

Another commenter states that 

security is expensive and that fences, 

access gates, background checks, and 

law enforcement personnel all combine 

to increase cost. This commenter 

provides two pages of justification why 

the FAA should not require certificate 

holders, particularly at Class III airports, 

to comply with the requirements of 14 

CFR part 107, Airport Security. 

FAA Response: This section does not 

require the certificate holder to comply 

with part 107 nor does it require the 

certificate holder to use any physical or 

personnel security measures to protect 

against criminal and terrorist acts. 

As noted above, this section only 

requires the certificate holder to have 

appropriated safeguards against 

inadvertent entry to movement areas by 

unauthorized persons or vehicles. These 

safeguards may consist of a combination 

of natural barriers, fencing, and warning 

signs, which suffice to deter personnel 

or vehicles from accidentally entering 

the movement area. 

The reference to part 107 (new 49 CFR 

part 1542, Airport Security) in 

paragraph (b) may have caused 

confusion. This reference merely alerts 

the certificate holder that any fencing 

used to comply with part 107 will 

automatically meet the requirements of 

this section. This is because any fencing 

used to comply with part 107 far 

exceeds the public protection 

requirements of part 139. 

Comment: One commenter requests 

the FAA examine the impact of this 

section on smaller airports. This 

commenter, the American Association 

of Airport Executives, states that the 

fencing requirement alone could be very 

expensive and one of its airport 

members claims it would have to install 

18 linear miles of fence to comply with 

this section. 

FAA Response: The FAA disagrees. It 

is difficult to respond to this comment, 

as the FAA is not familiar with the 

referenced airport operator’s situation. 

However, based on experience with 

current certificate holders, the FAA 

does not agree that an airport operator 

would need to purchase new fencing to 

encompass the entire airport property in 

order to comply with this section. Most 

likely the airport operator’s existing 

fencing or safeguards to keep the public 

out of movement areas will be 

acceptable. 

Again, the reference to fencing 

meeting access control requirements of 

part 107 in paragraph (b) may have 

caused confusion. As noted above, 

paragraph (b) does not require fencing, 

but merely alerts the certificate holder 

that any fencing used to comply with 

part 107 will automatically meet the 

requirements of this section. 

Section as Adopted: The section is 

adopted with minor editorial changes. 

The section number has been changed 

back to § 139.335, and paragraph (b) has 

been edited for clarity. In addition, 

references to 14 CFR part 107 have been 

revised to reflect changes made to FAA 

security regulations and the creation of 

the Transportation Security 

Administration. 

New Section 139.337 Wildlife Hazard 

Management (Proposed § 139.339) 

Proposal: This section contained 

existing requirements for the certificate 

holder to respond to wildlife hazards, 

including criteria for when a certificate 

holder is required to develop and 

implement a wildlife hazard 

management plan. The proposal made 

several changes to these requirements 

and clarified what is expected of the 

certificate holder when developing a 

wildlife hazard management plan. All 

operators of certificated airports serving 

scheduled air carrier operations were 

required to comply with this section. 

Existing § 139.337 was redesignated 

as proposed § 139.339. Existing 

paragraph (f) was moved to the 

beginning of this section and became 

new paragraph (a). This paragraph 

required that an airport operator take 

immediate action to alleviate wildlife 

hazards. All other paragraph 

designations were changed accordingly. 

Several changes were made to wildlife 

hazard assessment requirements. A new 

requirement was proposed specifying 

that a wildlife hazard assessment must 

be conducted by a wildlife damage 

management biologist who meets 

certain education and experience 

qualifications. Another new 

requirement was proposed mandating 

that any recommended actions for 

reducing the wildlife hazard made by 

the wildlife damage management 

biologist be included in the assessment. 

In addition, the existing requirement 

that an assessment include an analysis 

of the events prompting the assessment 

was modified to include an analysis of 

any circumstances that may have 

prompted the assessment as well. 

Several modifications were made to 

the requirement to submit a wildlife 

hazard assessment for FAA approval. 

These changes included a new 

requirement for the FAA to take into 

consideration any actions recommended 

by the wildlife hazard assessment in 

determining the need for a certificate 

holder to have a wildlife hazard 

management plan. In addition, changes 

were made to requirements for the 

wildlife hazard management plan. A 

new requirement was added that directs 

the certificate holder to annually review 

the plan. Also, existing language from 

Subpart C, Airport Certification Manual,

6412 Federal Register / Vol. 69, No. 27 / Tuesday, February 10, 2004 / Rules and Regulations 

was added to require that an approved 

wildlife hazard management plan be 

included in the airport operator’s ACM. 

Finally, specific references to AC 

series numbers were deleted, and 

several terms used throughout the 

section were revised, including the term 

‘‘ecological study.’’ A new paragraph 

was added to allow proposed Class II 

and III airports to implement less than 

full wildlife mitigation procedures if air 

carrier operations at these airports are so 

few or infrequent that any large 

expenditure would be unduly 

burdensome or costly. 

Comment: Three commenters support 

the changes to this section. One of these 

commenters believes that such changes 

will reduce wildlife aircraft strikes at 

FAA-regulated airports. 

FAA Response: The FAA agrees.

Comment: A commenter notes that 

the proposal did not mention the ARAC 

Commuter Airport Certification 

Working Group’s majority view on 

wildlife hazard management. This 

commenter requests that the FAA 

review and consider these 

recommendations before issuing a final 

rule. 

FAA Response: The FAA agrees that 

the proposal did not discuss the ARAC 

Commuter Airport Certification 

Working Group’s majority view on 

wildlife hazard management. This 

omission was not intentional, and the 

FAA did consider both the working 

group’s majority and minority views on 

this issue. 

The working group’s majority opinion 

stated that existing part 139 wildlife 

hazard management requirements 

would be economically burdensome for 

airports serving smaller air carrier 

operations. It recommended that such 

airport operators be required only to 

take immediate measures to alleviate 

wildlife hazards whenever detected and 

not be required to conduct an 

assessment and develop a wildlife 

hazard management plan. 

The working group’s majority stated 

the opinion that many airports serving 

small air carrier operations do not have 

complete perimeter fences or other 

measures to deter wildlife access to the 

movement area. Its opinion was that 

such airport operators do not have the 

financial resources to hire a consultant 

to study a potential wildlife hazard, and 

it would be too costly to require these 

airport operators to establish priorities 

for habitat modification. However, the 

ARAC majority did state that it is 

essential for the airport operator to have 

a plan to remove a wildlife hazard when 

detected. 

In contrast, the working group’s 

minority recommended that airports 

serving small air carrier aircraft comply 

with all requirements of this section. 

This minority position, submitted by the 

Air Line Pilots Association (ALPA), 

stated that airport personnel ‘‘often do 

not have the expertise to develop 

effective measures for mitigating 

wildlife hazards.’’ ALPA noted that 

wildlife hazards to aviation are a 

difficult and growing issue that should 

be taken seriously by all small airport 

operators and by requiring small airport 

operators to comply with this section it 

would ‘‘help ensure that professional 

wildlife management techniques are 

utilized to control wildlife problems at 

affected airports.’’

The FAA partly agrees with the 

working group’s minority position and 

determined that all airports serving 

scheduled operations (Class I, II, and III 

airports) will comply with revised 

wildlife hazard management 

requirements. At airports that only serve 

unscheduled air carrier operations 

(Class IV airports), the FAA believes 

that compliance with wildlife mitigation 

requirements would be unduly 

burdensome since these airports serve 

covered air carrier operations on an 

infrequent basis. Changes to paragraph 

(d)(3) also allow the FAA to consider 

frequency and size of air carrier aircraft 

served in determining the need for Class 

I, II, and III airport operators to comply 

with certain wildlife hazard 

management requirements. 

Comment: A commenter supports the 

proposed change to replace the term 

‘‘ecological study’’ in paragraph (b) with 

the term ‘‘wildlife hazard assessment.’’

FAA Response: The FAA agrees. 

Comment: Two commenters 

recommend modifying the events 

described in paragraph (b) that trigger 

the requirement for a wildlife hazard 

assessment. These commenters suggest 

that the term ‘‘damaging bird strike’’ be 

added to paragraph (b)(1). One of these 

commenters notes that the current 

language of paragraph (b)(1) does not 

require a wildlife hazard assessment if 

an aircraft experiences a single bird 

strike. This commenter states that a 

single bird strike should trigger an 

assessment because a single bird strike 

can be just as hazardous as some of the 

minor aircraft strikes involving 

mammals. 

FAA Response: The FAA agrees that 

language in paragraph (b) is unclear 

regarding aircraft strikes by a single bird 

or engine ingestion of wildlife other 

than birds. To clarify, proposed 

paragraph (b)(1) has been broken into 

two subparagraphs in the final rule that 

specify that a wildlife hazard 

assessment is required if an air carrier 

aircraft experiences either multiple bird 

strikes or an engine ingestion of 

wildlife. 

To clarify what is required of the 

certificate holder if an air carrier aircraft 

experiences a strike by a single bird, 

paragraph (b)(2) also has been modified. 

In the proposal, this paragraph required 

the certificate holder to conduct a 

wildlife hazard assessment if an air 

carrier aircraft experiences a ‘‘damaging 

collision’’ with wildlife other than 

birds. This has been modified to require 

an assessment if an air carrier aircraft 

experiences substantial damage from 

striking any wildlife, and the term 

‘‘substantial damage’’ has been defined. 

Consequently, the need for an 

assessment is now based on the type of 

damage sustained from a wildlife strike, 

rather than the type or numbers of 

wildlife strikes. 

This change also mirrors how wildlife 

strikes are reported on FAA Form 5200–

7, Bird/Other Wildlife Strike Report. 

This form is used by pilots and air 

traffic controllers to report wildlife 

strikes to the FAA. The information 

from Form 5200–7 is compiled into a 

national database to assist the FAA and 

other safety and wildlife organizations 

in learning more about the wildlife/

aircraft strike problem. The database 

helps provide information about 

wildlife strike risk factors and possible 

risk reduction measures and to evaluate 

the effectiveness of these measures. The 

FAA and the U.S. Department of 

Agriculture (USDA) annually analyze 

this data and publish a report of their 

findings. This report, the national 

wildlife strike database, and FAA Form 

5200–7 are available at the FAA’s 

Internet site at http://wildlifemitigation.tc.faa.gov or by calling (202) 

267–3389. 

Comment: A commenter recommends 

that proposed paragraph (f) be revised to 

require the certificate holder to include 

in its wildlife hazard management plan 

procedures for maintaining records of 

all reported wildlife strikes and all 

wildlife carcasses found within 200 feet 

of a runway. The commenter also 

suggests that the certificate holder use 

this information to periodically evaluate 

its wildlife hazard management plan 

and revise it if needed. The commenter 

notes that the maintenance of a local 

wildlife strike database is an essential 

part of the wildlife hazard management 

plan of any airport and that NTSB 

recommends that bird strike reporting 

be mandatory. 

FAA Response: The FAA disagrees 

with the recommendation to require 

airport operators to document all 

wildlife strikes. Airport operators 

already are required to document 

wildlife hazards and strikes under selfVerDate jul<14>2003 18:51 Feb 09, 2004 Jkt 200001 PO 00000 Frm 00034 Fmt 4701 Sfmt 4700 E:\FR\FM\10FER2.SGM 10FER2
Federal Register / Vol. 69, No. 27 / Tuesday, February 10, 2004 / Rules and Regulations 6413

inspection requirements and to take 

appropriate action. Further, an airport 

operator may not know of all wildlife 

strike reports as such reports are 

typically made by pilots and air traffic 

controllers and sent directly to the FAA. 

However, the FAA agrees in part that 

airport operators should use wildlife 

strike reports to periodically evaluate 

and revise their wildlife hazard 

management plan. Airport operators can 

access wildlife strike reports submitted 

to the FAA by calling the FAA at (202) 

267–3389. Similarly, the FAA 

inspectors will use both the FAA 

wildlife strike database and an airport’s 

self-inspection log to determine the 

need for a wildlife hazard assessment or 

to assess the effectiveness of an existing 

wildlife hazard management plan.

Comment: Several commenters 

express concerns over the potential cost 

for small airport operators to conduct a 

wildlife hazard assessment. These 

commenters state that the cost to 

conduct an assessment at a small airport 

could mean a significant long-term cost 

and an increase in personnel. One of 

these commenters remarks that the 

expense of a wildlife hazard assessment 

is not warranted unless there has been 

a strike or aircraft damage, as outlined 

in existing § 139.337. Another 

commenter, a Class III airport operator, 

states that it has received an estimate 

from an environmental contractor to 

conduct an assessment. Assuming no 

significant wildlife hazard, this 

contractor estimates the cost of an 

assessment at $8,000. 

FAA Response: The FAA agrees that 

a wildlife hazard assessment is only 

required under the conditions specified 

in paragraph (b). 

In addition, the FAA agrees that an 

assessment could mean a long-term cost 

for an airport operator. The cost for an 

assessment will vary depending on the 

wildlife concerns at each airport. 

Typically, a survey of the airport and its 

surroundings should reveal that the 

cause of the wildlife hazard may be 

relatively simple to fix, such as exposed 

rafters in an aircraft hangar or a poorly 

maintained perimeter fence. There may 

be airports where an assessment could 

take longer, particularly if a wildlife 

census is needed or migratory patterns 

must be monitored. 

Based on the wildlife aircraft strike 

data received from FAA Form 5200–7, 

the FAA has determined that 40 percent 

of those airports required to comply 

with this section for the first time (Class 

II and Class III airports) will be required 

to conduct a wildlife hazard assessment. 

Biologists at the FAA and the USDA 

Wildlife Services estimate that half of 

these airports could readily complete a 

wildlife assessment within a few days 

for a nominal cost. 

The services of the FAA, the USDA, 

and local sources are readily available, 

often free of charge, to airport operators 

initially seeking to mitigate wildlife 

issues. Wildlife biologists at both the 

FAA and the USDA offer free telephone 

consultations, guidance material and 

literature, on-site preliminary 

evaluations and suggested remedies. 

These experts work jointly to track 

airport wildlife problems and 

resolutions and serve as a clearinghouse for such information. Further, 

they can direct airport operators to local 

help, including game wardens, animal 

control personnel, extension agencies, 

and college/university resources, as well 

as provide information on airport 

operators that have pooled their 

resources and share a wildlife biologist. 

Most of the remaining airport 

operators required to conduct an 

assessment may need a few additional 

days to complete their wildlife 

assessments. These airports have more 

complex wildlife issues, and the FAA 

and the USDA estimate that in all but 

a few cases, assessments at these 

airports could be completed in 5 to 7 

days. In such instances, the FAA and 

the USDA would probably require the 

airport operator to reimburse the cost of 

a biologist’s wages, plus travel and 

expenses. If a consulting firm is used, 

the FAA estimates that the average cost 

for a consultant to conduct an 

assessment at such airports is 

approximately $3,500 (based on the 

average cost of $105 per staff hour). 

In a few instances, an assessment 

would take longer than a week due to 

the magnitude or complexity of the 

wildlife problem. For example, a study 

of migratory birds may require a 

yearlong study. The average cost for a 1-

year study involving monthly surveys is 

$50,000 and a 1-year study requiring 

quarterly surveys costs approximately 

$25,000. These fees usually include the 

cost to conduct a wildlife census, 

evaluate habitat, develop a wildlife 

hazard management plan, and train staff 

in wildlife control techniques. 

While a wildlife hazard management 

plan may be eligible for AIP funding if 

it results in capital improvements to the 

airport, some airport operators may not 

be able to comply with this section if a 

complex assessment is required. In such 

cases, airport operators may petition for 

an exemption under § 139.111. 

Comment: A commenter requests that 

Class III airports be allowed additional 

time to comply with this section. 

Specifically, the commenter requests 

that these airports be allowed 12 months 

to prepare a wildlife hazard assessment 

and an additional 6 months to prepare 

a wildlife hazard management plan. 

FAA Response: The FAA disagrees. 

No compliance dates were proposed in 

this section because not all certificated 

airports have experienced the triggering 

events that require an assessment, and 

for those required to conduct an 

assessment, there are many variables 

involved. 

At airports where a triggering event 

has occurred, the time to conduct an 

assessment will vary for each airport 

operator. The length of time needed to 

complete a wildlife hazard assessment 

will depend on the complexity of the 

wildlife hazard and the circumstances 

that triggered the assessment. An 

assessment also may reveal that a 

wildlife hazard management plan is not 

needed. Similarly, the time to complete 

a wildlife hazard management plan will 

be different for each airport operator.

If the FAA determines there is a need 

for a wildlife hazard assessment or 

management plan, it will consult with 

the airport operator to determine a 

reasonable completion date. 

Comment: A commenter notes that 

there are several typographical errors in 

paragraphs (c), (d), and (f). 

FAA Response: The FAA agrees. 

These errors have been corrected. 

Comment: A commenter questions 

whether the phrase ‘‘near the airport’’ in 

paragraph (b) should be more narrowly 

defined. 

FAA Response: The term ‘‘near the 

airport’’ is not defined in paragraph (b). 

The conditions attracting wildlife to an 

airport are so varied that it is difficult 

to assign a specified distance from the 

airport within which the presence of a 

wildlife hazard would require an airport 

operator to conduct an assessment. The 

only defined distances are those 

specified by statute for the siting of 

landfills near certain public airports. In 

addition, other recommended distances 

for wildlife attractants are contained in 

AC 150/5200–33, Hazardous Wildlife 

Attractants On or Near Airports. 

As is currently the case, the FAA will 

work with each airport operator to 

determine if a wildlife hazard is close 

enough to aircraft traffic patterns and 

the airport to trigger a wildlife hazard 

assessment. 

Comment: Four commenters express 

concerns over the proposed requirement 

to use a qualified wildlife damage 

management biologist. Some of these 

commenters state that the required use 

of such a biologist would be cost 

prohibitive because it would require 

many airport operators to hire 

additional personnel or overburden 

USDA with requests for a qualified 

biologist. Another commenter suggests

6414 Federal Register / Vol. 69, No. 27 / Tuesday, February 10, 2004 / Rules and Regulations 

that this section be modified to allow an 

airport operator to conduct an 

assessment according to a methodology 

prepared by a wildlife damage 

management biologist. The commenter 

argues that this approach would permit 

airport operators in the same geographic 

area to reduce costs by jointly 

contracting for the services of a 

qualified biologist. 

FAA Response: The FAA agrees in 

part. The language of paragraph (c) has 

been modified so that the qualifications 

for a wildlife damage management 

biologist are not as restrictive. While the 

wildlife hazard assessment still must be 

conducted by a wildlife damage 

management biologist, the requirement 

for this individual to have a Bachelor of 

Science degree has been deleted. The 

required biologist need only have 

professional training or experience in 

wildlife hazards at airports. This change 

will give airport operators greater 

flexibility in selecting a qualified 

biologist. 

The FAA disagrees with the 

recommendation that an airport 

operator be allowed to conduct its 

assessment under the guidance of a 

qualified biologist. As discussed in the 

proposal (65 FR 38659), the FAA has 

determined that the potential for loss of 

life and equipment resulting from 

wildlife aircraft strikes requires persons 

who conduct wildlife hazard 

assessments to have the education, 

training, and experience in conducting 

such assessments. However, this section 

does not prohibit airport operators from 

pooling resources and jointly 

contracting for the services of a 

qualified biologist. In addition, airport 

personnel can be used to assist the 

qualified biologist in conducting the 

assessment. 

Regarding commenters’ concerns that 

USDA will not be able to comply with 

additional requests for a qualified 

biologist to conduct assessments, the 

FAA disagrees that the USDA will be 

overburdened to a point that it will not 

be able to provide such services. The 

FAA works closely with USDA to 

ensure biologists are available for part 

139 wildlife hazard assessments and has 

coordinated this rulemaking with them. 

The FAA does not anticipate that its 

biologist, or USDA’s biologists, will be 

overburdened due to the additional 

airport operators needing to conduct an 

assessment because of changes to part 

139. 

Comment: A commenter disagrees 

with proposed new paragraph (c)(5) that 

would require an airport operator to 

include in its wildlife hazard 

assessment recommendations made by a 

qualified biologist for reducing wildlife 

hazard. This commenter believes a 

biologist would be unfamiliar with 

airport operations and may make 

recommendations that would ‘‘not be 

feasible and therefore not necessary to 

include in the assessment.’’

FAA Response: The FAA disagrees. 

The specialized training and experience 

that is required of a qualified biologist 

under part 139 should result in wildlife 

hazard management recommendations 

that consider airport operations. 

Further, the FAA’s review and approval 

of the assessment will determine the 

feasibility of such recommendations and 

ensure that they are appropriate for the 

type of air carrier operations served. 

Comment: One commenter 

recommends that paragraph (f)(7) be 

changed to allow airport personnel to be 

trained by an individual other than the 

biologist required under paragraph (c). 

This commenter suggests that initial 

training of airport personnel be 

conducted by the required biologist 

using a ‘‘train-the-trainer’’ approach. 

The commenter believes this will allow 

airport personnel to conduct any 

subsequent training. 

FAA Response: The FAA agrees. 

Paragraph (f)(7) does not prohibit the 

‘‘train-the-trainer’’ approach so long as 

the required biologist conducts the 

initial training. 

Comment: A commenter recommends 

that paragraph (c) be revised to include 

provisions to assist airport operators in 

contacting and working with USDA. 

This commenter noted that USDA’s 

expertise and resources in assessing, 

monitoring, and mitigating wildlife 

hazards at airports is extensive and 

‘‘constitutes the foundation upon which 

the FAA bases its expertise in the 

subject area.’’ This commenter also 

suggests that the FAA ‘‘recognize the 

expertise and consider the resources of 

state wildlife agencies in meeting’’ the 

requirements of this section. The 

commenter believes this change would 

provide airport operators a cost-cutting 

alternative to hiring the services of a 

qualified wildlife damage management 

biologist. 

FAA Response: The FAA disagrees 

that paragraph (c) should include 

information on using Federal or State 

wildlife services. The availability of 

State and local agencies varies from 

State to State, and information on these 

agencies would require frequent updates 

to keep it current. Therefore, it would be 

impractical to place this information in 

the regulation. As noted above, airport 

operators can contact the FAA for this 

information. 

Comment: A commenter notes that 

there is no definition included in this 

section that accurately describes what 

‘‘qualified’’ means when used in 

connection with the term ‘‘wildlife 

damage management biologist.’’

FAA Response: A qualified wildlife 

damage management biologist is a 

biologist that has qualifications 

specified under § 139.337(c), as 

adopted.

Comment: A commenter questions the 

deletion of the term ‘‘observed’’ from 

paragraph (b)(3). The commenter states 

that the change from ‘‘is observed to 

have access to any airport flight pattern 

or aircraft movement area’’ to ‘‘has 

access to any airport flight pattern or 

aircraft movement area’’ would require 

all airport operators to conduct a 

wildlife hazard assessment, rather than 

just those airport operators that observe 

wildlife of a size or in numbers capable 

of causing an aircraft strike or engine 

ingestion. 

FAA Response: The FAA agrees the 

term ‘‘observed’’ should be replaced in 

paragraph (b)(3). The original text of 

paragraph (b)(3) has been restored. 

Comment: A commenter states that 

paragraph (b)(3) ‘‘appears to be a 

catchall justification subject to the 

interpretation of an inspector not 

qualified in wildlife assessment.’’ This 

commenter recommends a ‘‘low-cost, 

initial overview validation’’ conducted 

by a qualified individual to determine if 

a hazard exists and the need for an 

assessment. 

FAA Response: As discussed above, 

the restoration of the original text of 

paragraph (b)(3) narrows its scope. 

However, the FAA does not agree with 

the recommended alternative to a 

wildlife hazard assessment. As 

previously noted, many wildlife hazard 

assessments are the low-cost initial 

overview recommended by the 

commenter. Further, FAA airport 

certification safety inspectors are 

qualified to determine if an assessment 

is needed. The FAA trains these 

inspectors to determine if a potential 

wildlife hazard exists. The FAA’s 

wildlife biologist also consults regularly 

with these inspectors, as well as with 

airport operators. 

Comment: A commenter recommends 

that paragraph (h) include the following 

sentence: ‘‘Certificate holders are 

encouraged to discuss potential use of 

new or innovative wildlife hazard 

management methods with the 

Administrator, and to share results of 

experimental methods, in the interest of 

increasing public safety and wildlife 

hazard management efficiency.’’

FAA Response: The FAA disagrees. 

Such discussion of new or innovative 

wildlife hazard management methods 

already occurs when the FAA reviews 

wildlife hazard assessments or wildlife

Federal Register / Vol. 69, No. 27 / Tuesday, February 10, 2004 / Rules and Regulations 6415

hazard management plans. 

Additionally, the FAA’s staff wildlife 

biologist participates with other 

professional wildlife managers in 

developing and revising wildlife hazard 

management standards and finding 

resolutions to aviation wildlife 

problems. This ongoing effort is 

discussed on the FAA Internet site at 

http://wildlife-mitigation.tc.faa.gov.

Comment: Two commenters express 

concerns over proposed paragraph (f)(6), 

which would require an airport operator 

to annually review its wildlife hazard 

management plan. One commenter 

states that the annual review is 

excessive, especially since it could take 

more than a year to develop. The other 

commenter requests clarification on 

whether an airport operator is allowed 

to conduct its own annual review rather 

than the qualified biologist. 

FAA Response: Paragraph (f)(6) 

requires that the wildlife hazard 

management plan include procedures 

for an annual review of the plan. These 

procedures will not become effective 

until the plan is completed and 

approved by the FAA. Accordingly, an 

annual review will not be necessary 

until 1 year after the FAA has approved 

the plan. 

The annual review of the wildlife 

hazard management plan must be 

conducted in the manner specified in 

the plan and as approved by the FAA. 

Approved procedures to conduct this 

review will depend on the complexity 

of the wildlife hazard and mitigation 

measures. In most instances, the FAA 

would permit the airport operator to 

conduct its own review. However, a 

qualified biologist may be required to 

review and evaluate certain aspects of 

the wildlife hazard assessment. 

Section as Adopted: This section is 

adopted with changes. For the reasons 

discussed above, the events triggering a 

wildlife hazard assessment in 

§ 139.337(b) have been revised. Editorial 

changes have been made to paragraph 

(c), and some of the requirements for a 

wildlife damage management biologist 

have been deleted. Similarly, editorial 

changes have been made to paragraphs 

(d), (e), and (f). 

In addition, paragraph (g) has been 

deleted and the stipulation that the FAA 

will consider the frequency and size of 

air carrier aircraft in determining the 

need for a wildlife hazard plan has been 

added to paragraph (d)(3) and now 

applies to all airport classes. 

Subsequently, paragraph (h) has been 

redesignated as paragraph (g). Finally, 

the section number has been changed to 

new § 139.337 from proposed § 139.339. 

New Section 139.339 Airport 

Condition Reporting (Proposed 

§ 139.341) 

Proposal: This section contained 

existing requirements for reporting 

changed airfield conditions to air 

carriers. Except for a change to the 

section number, the requirements of this 

section remained substantially the same. 

Certificate holders were still required to 

collect and disseminate information on 

the conditions of the airport, including 

any construction or maintenance 

activities, weather or animal hazards, 

and nonfunctional equipment and 

services. All certificated airports were 

required to comply with this section. 

While reporting requirements 

remained the same, a minor change was 

made to clarify that a certificate holder 

can use notification systems other than 

the FAA’s pilot notification system, the 

Notices to Airmen (NOTAM) System. 

Also, the term ‘‘safety area’’ was added 

to paragraph (c)(2) to ensure that airport 

users are notified of irregularities in the 

safety area, in addition to those in the 

movement area, loading ramps, and 

parking areas. 

References to other section numbers 

and the term ‘‘Airport Certification 

Specifications’’ were changed to reflect 

proposed certification changes. Minor 

clarifications were proposed to clarify 

that the requirements of this section 

must be met in a manner satisfactory to 

the FAA and that the ACs contain some 

methods of compliance that are 

acceptable to the Administrator. In 

addition, the section number was 

changed to proposed § 139.341 from 

§ 139.339. 

Comment: A commenter, a Class I 

airport operator, states that it supports 

the changes to this section. 

FAA Response: The FAA agrees. 

Comment: A commenter states that 

the wording of proposed § 139.341(c)(6) 

could be interpreted to mean that the 

certificate holder must issue a NOTAM 

for each individual runway and taxiway 

sign that is found inoperative. The 

commenter notes that this is unrealistic 

and would place a burden on the 

NOTAM System and air traffic control 

personnel. 

FAA Response: The FAA agrees that 

the language of paragraph (c)(6) is 

unclear. It could be interpreted to mean 

the certificate holder must report either 

the malfunction of any sign required 

under § 139.311 or the malfunction of 

the entire sign system. 

The reporting of the malfunction of 

any required sign would quickly 

overwhelm the notification system. The 

vast majority of signs required under 

§ 139.311 are location and direction 

signs. These signs are periodically 

inoperative, mainly due to burned out 

lights. Because of their large number, 

particularly at Class I airports, a 

certificate holder frequently finds these 

signs inoperative during daily selfinspections and is required under 

§ 139.311 to repair them promptly. 

However, reporting a malfunctioning 

mandatory instruction sign to air 

carriers is another matter. These signs, 

holding position signs and ILS critical 

area signs, convey critical safety 

information, including where an aircraft 

should stop before entering an active 

runway and areas where an aircraft 

could block the transmission of 

navigational information to other 

aircraft. Accordingly, paragraph (c)(6) 

has been revised to require certificate 

holders to report to air carrier tenants 

the malfunction of holding position 

signs or ILS critical area signs. This 

change will ensure that air carriers are 

informed of either an individual or a 

systemic failure of these signs. 

Section as Adopted: This section is 

adopted with changes. For the reasons 

discussed above, proposed 

§ 139.341(c)(6) (new § 139.339(c)(6)) has 

been revised to limit the type of signs 

that a certificate holder must report if 

found malfunctioning. The word ‘‘sign’’

has been replaced by the terms ‘‘holding 

position signs’’ and ‘‘ILS critical area 

signs.’’ The section number also has 

been changed to new § 139.339 from 

proposed § 139.341, and the reference to 

proposed § 139.321, ARFF: Exemptions, 

in paragraph (c)(8) has been deleted. 

In addition, a new paragraph (d) has 

been added requiring certificate holders 

to maintain a record, for at least 12 

consecutive months, of each airport 

condition report. While this 

requirement was not discussed in the 

proposal, other similar recordkeeping 

requirements were, and new paragraph 

(d) mirrors these requirements.

The FAA has determined that records 

of airport condition reports should be 

retained in the same manner as the 

records of self-inspections, as required 

under § 139.327. Although not 

proposed, this change is the logical 

outgrowth of similar recordkeeping 

requirements. Airport condition reports 

are typically the result of conditions 

found during a self-inspection, and this 

change will ensure the recordkeeping 

requirements in the two sections are 

consistent. 

In accordance with AC 150/5200–28, 

Notices to Airmen (NOTAMS) for 

Airport Operators, most certificate 

holders already keep airport condition 

report records and have incorporated 

them into the follow-up process used to 

address discrepancies found during selfVerDate jul<14>2003 18:51 Feb 09, 2004 Jkt 200001 PO 00000 Frm 00037 Fmt 4701 Sfmt 4700 E:\FR\FM\10FER2.SGM 10FER2
6416 Federal Register / Vol. 69, No. 27 / Tuesday, February 10, 2004 / Rules and Regulations 

inspections. Accordingly, the FAA 

already included the cost and hours to 

comply with this recordkeeping 

requirement in its estimate of initial and 

annual recordkeeping burden required 

under the Paperwork Reduction Act. 

New Section 139.341 Identifying, 

Marking, and Lighting Construction and 

Other Unserviceable Areas (Proposed 

§ 139.343) 

Proposal: This section prescribed 

existing standards for the marking and 

lighting of construction and other 

unserviceable areas of the airfield. 

Except for a change to the section 

number, the requirements of this section 

remained the same. Certificate holders 

were still required to light and mark any 

construction or unserviceable areas and 

associated equipment that may create a 

hazard. All certificated airports serving 

scheduled air carrier operations 

(proposed Class I, II, and III airports) 

were required to comply with this 

section. 

References to other section numbers 

and the term ‘‘Airport Certification 

Specifications’’ were changed to reflect 

proposed certification changes. Minor 

clarifications were proposed to clarify 

that the requirements of this section 

must be met in a manner satisfactory to 

the FAA and that ACs contain some 

methods of compliance that are 

acceptable to the Administrator. In 

addition, the section number was 

changed from § 139.341 to proposed 

§ 139.343. 

Comment: No comments were 

received on this section. 

Section as Adopted: This section is 

adopted with two minor changes. The 

word ‘‘reporting’’ in the section title has 

been changed to ‘‘lighting’’ to more 

accurately reflect the requirements of 

this section. In addition, the section 

number was changed to new § 139.341 

from proposed § 139.343. 

New Section 139.343 Noncomplying 

Conditions (Proposed § 139.345) 

Proposal: This section contained 

existing requirements for certificate 

holders to restrict air carrier operations 

in those areas of the airport that have 

become unsafe and no longer comply 

with the requirements of subpart D of 

part 139. Operators of all proposed 

airport classes were required to comply 

with this section. Except for a change to 

the section number, the requirements of 

this section remained the same. The 

section number was redesignated from 

§ 139.343 to proposed § 139.345. 

Comment: No comments were 

received on this section. 

Section as Adopted: The section 

number has been changed to new 

§ 139.343 from proposed § 139.345. 

Otherwise, the section is adopted as 

proposed. 

Final Rule Compliance 

This final rule becomes effective 120 

days after its publication in the Federal 

Register.

Section 121.590 Compliance 

In the conduct of operations at part 

139 certificated airports, air carriers, 

and the pilots used by them, may 

continue to operate into part 139 

airports until these airports have 

obtained new or revised AOCs, as 

required under new § 139.101, General 

requirements. However, at specified 

dates after the effective date of the rule, 

air carriers and their pilots can only use 

those airports that have been certificated 

under new part 139. 

As specified in new § 121.590(a), air 

carriers and their pilots will be 

prohibited from operating at Class I 

airports 12 months after the effective 

date of the rule and at Class II, III, and 

IV airports 18 months after the effective 

date of the rule if the operators of these 

airports have not obtained a new or 

revised part 139 AOC. To assist air 

carriers in determining which airports 

have obtained a new or revised AOC, 

the FAA’s Airport Safety and 

Operations Division (AAS–300) will 

provide information on the certification 

status of part 139 airports on its Web 

site at http://www.faa.gov/arp/.

Part 139 Compliance 

Any airport operator that desires to 

serve applicable air carrier operations 

must comply with the requirements of 

this final rule. The action required by an 

airport operator to comply will vary 

depending on the type of air carrier 

operations served and whether the 

airport operator currently holds a part 

139 AOC, as well as the individual 

airport’s ACM. 

Operators of currently certificated 

airports are not required to reapply for 

an AOC. The FAA will issue new part 

139 AOCs to all current certificate 

holders, as appropriate. For most 

current certificate holders, this will 

involve updating their existing ACM to 

incorporate several new elements. The 

remaining certificate holders may be 

required to comply with certain 

requirements for the first time or to 

extend existing part 139 services to 

cover additional air carrier operations. 

The final rule requires all covered 

airport operators to submit an ACM 

tailored to each airport for the FAA’s 

approval. The ACM is a written 

document that details how the airport 

operator will comply with the 

requirements of part 139. Airport 

operators that currently hold an AOC 

already have an ACM. Airport operators 

that currently hold a limited AOC have 

a modified version of an ACM, known 

as an airport certification specification 

(ACS). Under the final rule, all ACSs 

must be converted to ACMs. 

Depending on existing operational 

procedures and emergency services, 

every ACM/ACS will be in varying 

stages of compliance with the final rule. 

Some airport operators may need only 

to document existing operational 

procedures to comply with the new 

requirements. This is the case for many 

Class I airport operators. Newly 

certificated airport operators (Class III) 

may also have to develop and document 

new operational and emergency 

procedures to comply with the new 

requirements. Class II and IV airport 

operators may be required to do both. 

Once an airport operator submits its 

revised or new ACM, the FAA will work 

with the airport operator to tailor the 

document to ensure compliance with 

the final rule and may conduct an 

inspection of the airport to verify that 

the ACM reflects actual airport 

conditions. The FAA also may request 

changes to the ACM and any procedures 

it describes. 

Airport operators may continue to 

serve air carrier operations as they 

currently do until the deadline for 

submitting new or revised ACM’s to the 

FAA. After this date, airport operators 

that have not submitted their ACM for 

approval will no longer be able to serve 

applicable air carrier operations. Airport 

operators that have submitted either a 

new ACM or an update will be 

contacted by the FAA to determine if 

additional action is needed and to what 

extent they can continue to serve air 

carrier operations until a new certificate 

is issued.

Currently Certificated Airports 

All airport operators that hold an 

existing AOC will be reclassified as 

Class I airports (airports serving 

scheduled operations of large air carrier 

aircraft). These airport operators have 6 

months from the effective date of this 

final rule to submit revisions to their 

ACM’s for FAA approval. 

All airport operators that hold an 

existing Limited Airport Operating 

Certificate will be reclassified either as 

Class II airports (airports serving 

scheduled operations of small air carrier 

aircraft and unscheduled operations of 

large air carrier aircraft) or Class IV 

airports (airports serving unscheduled 

operations of large air carrier aircraft). 

The operators of these airports will have 

to convert their existing ACS into an

Federal Register / Vol. 69, No. 27 / Tuesday, February 10, 2004 / Rules and Regulations 6417

ACM. They will have 12 months from 

the effective date of this final rule to 

submit the revised document to the 

FAA for approval. In addition, operators 

of Class II and IV airports have 

additional time to comply with new 

sign, ARFF, and emergency planning 

requirements and may request 

additional compliance time. 

Uncertificated Airports 

Airports serving scheduled operations 

of small air carrier aircraft will be newly 

certificated as the result of this final 

rule. Operators of these airports, 

designated as Class III airports, that 

want to continue to serve such air 

carrier operations are now required to 

have an AOC and must initiate the 

application process as prescribed in 

§ 139.103. This process is explained in 

more depth in the proposal (65 FR 

38637). Operators of Class III airports 

have 12 months from the effective date 

of this final rule to submit their new 

ACM to the FAA for approval. Similar 

to Class II and IV airport operators, 

Class III airport operators have 

additional time to comply with new 

sign, ARFF, and emergency planning 

requirements and may request 

additional compliance time. 

Airports Located in the State of Alaska 

The statutory authority covering the 

certification of airports that serve 

scheduled operations of small air carrier 

aircraft is not applicable to Alaskan 

airports. As noted in the proposal (65 

FR 38639), airports in the State of 

Alaska that serve large air carrier 

operations will continue to be 

certificated under part 139 as Class I or 

IV airports. Accordingly, the 

compliance dates in the final rule for 

these airport classifications will apply. 

Otherwise, there are no part 139 

applications for those airports in the 

State of Alaska that only serve 

scheduled operations of small air carrier 

aircraft. 

Airports Operated by the U.S. 

Government 

Airports operated by the U.S. 

Government will no longer be 

certificated under part 139. However, 

they may still continue to serve air 

carriers operations, as set out in 

§ 121.590. As stated in the proposal (65 

FR 38641), the FAA does not have the 

statutory authority to regulate airports 

operated by U.S. Government agencies, 

and corresponding changes to § 121.590 

will now permit air carriers to use U.S. 

Government operated airports that are 

not certificated under part 139. 

Paperwork Reduction Act 

As required by the Paperwork 

Reduction Act of 1995 (44 U.S.C. 

3507(d)), the FAA has submitted a copy 

of these sections to the Office of 

Management and Budget for its review. 

The collection of information was 

approved and assigned OMB Control 

Number 2120–0675. 

This final rule revises current airport 

certification requirements in 14 CFR 

part 139 and establishes certification 

requirements for airports serving 

scheduled air carrier operations in 

aircraft with more than 9 passenger 

seats but less than 31 passenger seats. 

The final rule also clarifies existing 

requirements, incorporates existing 

industry practices, and responds to an 

outstanding petition for rulemaking and 

certain NTSB recommendations. 

Similar to how the FAA currently 

certificates airports, this final rule 

requires airport operators that choose to 

be certificated under part 139 to 

document and implement procedures 

for complying with part 139 safety and 

operational requirements. To 

accommodate variations in airport 

layout, operations, air carrier service, 

and other local considerations, 

compliance procedures will be tailored 

to each airport operator when 

complying with more burdensome 

requirements. 

Several sections of the proposal had 

recordkeeping and reporting 

requirements. Comments received on 

these requirements are addressed 

previously in the appropriate sectionby-section analysis. Several 

modifications were made to 

recordkeeping and reporting 

requirements in the final rule as the 

result of comments received. As a result, 

the annual and recurring recordkeeping 

and reporting burdens have been 

adjusted accordingly.

The NPRM estimate of respondents 

has changed slightly from 606 airport 

operators to 603 airport operators. The 

likely respondents to recordkeeping and 

reporting requirements contained in the 

final rule are those civilian U.S. airport 

certificate holders who operate airports 

that serve scheduled and unscheduled 

operations of air carrier aircraft with 

more than 30 passenger seats 

(approximately 566 airports). These 

airport operators already hold a part 139 

AOC and comply with most of the 

information collection requirements 

required in the final rule. Certain airport 

operators not currently certificated by 

the FAA also will be required to apply 

for a certificate under this rule if they 

want to continue to serve certain air 

carriers. These airports, approximately 

37 airports, serve scheduled operations 

of air carrier aircraft designed for more 

than 9 passenger seats but less than 30 

passenger seats. 

While many part 139 reporting and 

recordkeeping requirements remain 

substantially unchanged, additional 

information collections have been 

adopted in this final rule. Both existing 

and new requirements are necessary to 

allow the FAA to verify compliance 

with proposed part 139 safety and 

operational requirements. 

This final rule constitutes a 

recordkeeping and reporting burden for 

operators of airports certificated under 

part 139 because the FAA will continue 

to require operators of certificated 

airports to comply with certain safety 

requirements prior to serving certain air 

carrier aircraft. When an airport 

satisfactorily complies with these 

requirements, the FAA issues to that 

facility an AOC that permits an airport 

to serve large air carriers. The FAA 

periodically inspects these airports to 

ensure continued compliance safety 

requirements, including the 

maintenance of specified records. Both 

the application for an AOC and 

compliance inspections (typically 

conducted on an annual basis) require 

regulated airport operators to collect 

and report certain operational 

information. 

In addition, this final rule requires 

operators of certificated airports to 

develop and comply with a FAAapproved ACM, in manner similar to 

what was previously required. The ACM 

details how an airport complies with the 

requirements of part 139 and includes 

other instructions and procedures to 

assist airport personnel in performing 

their duties and responsibilities. 

Under this rule, the FAA continues to 

require that the AOC remain in effect as 

long as the need exists and the operator 

complies with the terms of the AOC and 

the ACM. Certain changes in the 

operation of the airport must be 

reported to the FAA for information or 

approval. If the airport operator believes 

that an exemption is needed to 

commence airport operations, 

justification for and the FAA’s approval 

of the exemption is required for 

issuance of the AOC. The operator may 

request the FAA’s approval of changes 

to the AOC or ACM, or an exemption 

from part 139 requirements, by 

submitting justification and 

documentation. Also, the FAA 

Administrator may propose changes to 

the AOC or ACM, and the airport 

operator may submit contrary evidence 

of argument concerning the proposed 

changes.

6418 Federal Register / Vol. 69, No. 27 / Tuesday, February 10, 2004 / Rules and Regulations 

The frequency of collection would 

vary depending on the type of 

information collected, the size of the 

respondent’s airport, and the type of air 

carrier operations served. 

The FAA refined its NPRM estimate 

of initial and annual hourly burden to 

respondents, as detailed in the 

following table. Burden hours are listed 

separately for airports that currently 

hold a part 139 AOC and for those 

airports that will be newly certificated:

New part 139 sections 

Initial reporting

hours 

Initial recordkeeping

hours 

Annual reporting

hours 

Annual recordkeeping 

hours 

Currently

certificated 

Newly

certificated 

Currently

certificated 

Newly

certificated 

Currently

Certificated 

Newly

certificated 

Currently

certificated 

Newly

certificated 

139.103 ............................ 0 296 0 0 0 16 0 0 

139.111 ............................ 0 0 0 0 0 32 0 0 

139.113 ............................ 0 0 0 0 0 5 0 0 

139.201 ............................ 0 0 0 0 0 592 0 592 

139.203 ............................ 0 1,480 0 0 0 0 0 0 

139.205 ............................ 22,640 0 0 0 0 1,184 0 0 

139.303 ............................ 0 0 9,056 592 0 0 13,569 340 

139.313 ............................ 1,560 648 0 0 0 0 520 216 

139.317 ............................ 0 0 0 0 0 0 0 2,035 

139.319 ............................ 0 0 0 888 0 0 0 555 

139.321 ............................ 0 0 260 296 0 0 2,264 148 

139.325 ............................ 0 0 5,200 1,480 0 0 3,120 888 

139.327 ............................ 0 0 2,080 592 0 0 13,520 3,848 

139.329 ............................ 0 0 8,960 2,960 0 0 560 185 

139.337 ............................ 0 0 0 0 16 16 3,424 1,173 

139.339 ............................ 0 0 520 148 0 0 3,250 925 

Subtotal ..................... 24,200 2,424 26,076 6,956 16 1,845 40,227 10,905 

Totals ........................ 26,624 33,032 1,861 51,132 

59,656 52,993 

The estimate of the total initial 

reporting and recordkeeping hourly 

burden for the final rule is 59,656 (an 

increase of 15,296 hours from the NPRM 

estimate). The annual hourly burden is 

52,993 (an increase of 223 hours from 

the NPRM estimate). Burden hours are 

estimated as the number of reports and 

records made by each respondent. This 

figure varies yearly, as does the average 

time per response. These variations are 

largely due to disparities in airport size 

and aircraft operations served. The labor 

burden is estimated on an annual basis. 

Operations/maintenance labor 

accounts for an estimated 70 percent of 

the hours, and clerical labor makes up 

the other 30 percent. Cost per hour is 

estimated at $26 for operations/

maintenance labor and $14 for clerical 

labor. Other expenses, such as general 

and administrative costs, overhead 

costs, and other indirect costs are 

estimated at approximately 15 percent 

of the direct labor costs. The estimate of 

the total initial reporting and 

recordkeeping cost burden for the final 

rule is $1,536,738 (an increase of 

$394,025 from the NPRM estimate). The 

annual cost burden is $1,356,098 (an 

increase of $5,743 from the NPRM 

estimate). 

An agency may not conduct or 

sponsor and a person is not required to 

respond to a collection of information 

unless it displays a currently valid OMB 

control number. 

International Compatibility 

In keeping with U.S. obligations 

under the Convention on International 

Civil Aviation, it is the FAA policy to 

comply with International Civil 

Aviation Organization (ICAO) Standards 

and Recommended Practices to the 

maximum extent practicable. The FAA 

determined that there are no ICAO 

Standards and Recommended Practices 

that correspond to these regulations. 

The Joint Aviation Authorities, an 

associated body of the European Civil 

Aviation Conference, develop Joint 

Aviation Requirements (JAR) in aircraft 

design, manufacture, maintenance, and 

operations for adoption by participating 

member civil aviation authorities. The 

JAR does not address airport 

certification. 

Regulatory Evaluation, Regulatory 

Flexibility Determination, International 

Trade Impact Assessment, Federalism, 

and Unfunded Mandates Assessment 

Changes to Federal regulations must 

undergo several economic analyses. 

First, Executive Order 12866 directs that 

each Federal agency shall propose or 

adopt a regulation only upon a reasoned 

determination that the benefits of the 

intended regulation justify its costs. 

Second, the Regulatory Flexibility Act 

of 1980, as amended, requires agencies 

to analyze the economic impact of 

regulatory changes on small entities. 

Third, the Trade Agreements Act (19 

U.S.C. 2531–2533) prohibits agencies 

from setting standards that create 

unnecessary obstacles to the foreign 

commerce of the United States. In 

developing U.S. standards, this Trade 

Act also requires agencies to consider 

international standards and, where 

appropriate, use them as the basis of 

U.S. standards. And fourth, the 

Unfunded Mandates Reform Act of 1995 

requires agencies to prepare a written 

assessment of the costs, benefits, and 

other effects of proposed or final rules 

that include a Federal mandate likely to 

result in the expenditure by State, local, 

or tribal governments, in the aggregate, 

or by the private sector, of $100 million 

or more annually (adjusted for 

inflation). 

In conducting these analyses, the FAA 

has determined that the economic 

impact of this rule will generate benefits 

that justify its costs, does meet the 

standards for a ‘‘significant regulatory 

action’’ as defined in the Executive 

Order, and is significant as defined by 

the Department of Transportation’s 

Regulatory Policies and Procedures. The 

rule, therefore, is subject to review by 

OMB. The FAA has determined that this 

rule will not constitute a barrier to

Federal Register / Vol. 69, No. 27 / Tuesday, February 10, 2004 / Rules and Regulations 6419

international trade and does not contain 

a significant intergovernmental or 

private sector mandate. The agency has 

concluded that the rule will have a 

significant impact on a substantial 

number of small entities and has 

prepared a final regulatory flexibility 

analysis. These analyses, available in 

the docket, are summarized below. 

In 1995, the FAA issued regulations 

aimed at ensuring safety in scheduled 

air carrier operations in aircraft with 10 

or more passenger seats. Since then, 

Congress has authorized the FAA to 

certificate airports serving scheduled air 

carrier operations, conducted in small 

aircraft. In 2000, the FAA issued an 

NPRM to revise the airport certification 

process and to establish certification 

requirements for these airports. 

Under this revised certification 

process, certificated airports will be 

reclassified into four new classes, Class 

I–IV, based on the type of air carrier 

operations served. Class I, II, and IV 

airports will be those airports that 

currently hold AOCs, and Class III 

airports will be those airports being 

newly certificated. As specified in the 

authorizing statute, airport certification 

requirements will not be applicable to 

airports located in the State of Alaska 

that only serve scheduled operation of 

small air carrier aircraft. 

Similar to how the FAA currently 

certificates airports, the rule requires 

airport operators choosing to be 

certificated under part 139 to document 

and implement procedures for 

complying with part 139 safety and 

operational requirements. To 

accommodate variations in airport 

layout, operations, air carrier service, 

and other local considerations, the rule 

requires that compliance procedures be 

tailored to each airport operator when 

complying with the more burdensome 

requirements. 

Benefits 

The expected benefits of this rule 

include reducing fatalities, injuries, and 

property damage at airports with certain 

scheduled and unscheduled air carrier 

operations. This is expected to be 

particularly true at airports serving 

scheduled air carrier operations 

conducted in common carrier aircraft 

designed for more than 9 passenger 

seats but less than 31 passenger seats 

(smaller aircraft). 

This rule affects all currently 

certificated airports and an estimated 37 

additional airports that are currently 

uncertificated. Accordingly, benefits are 

expected to accrue at all four classes of 

certificated airports created under this 

rule. Several different types of safety 

improvements are expected. These 

involve the: 

(1) Prevention of accidents or 

collisions because of nonstandard or 

inadequate signs, markings, and lighting 

and traffic and wind direction 

indicators; 

(2) Mitigation of accident damages by 

improving runway safety areas at certain 

airports; 

(3) Mitigation of accidents as a result 

of expanding ARFF coverage to 

additional air carrier operations; 

(4) Prevention and mitigation of fires 

at airport fuel farms; 

(5) Prevention and mitigation of 

accidents caused by snow and ice 

accumulation; and 

(6) Prevention and mitigation of 

wildlife problems as a result of 

improved procedures for wildlife hazard 

management. 

A brief discussion of benefits is 

included below. A more extensive 

discussion is contained in the full 

regulatory evaluation in the docket. 

Runway Safety Areas 

This rule will require that Class III 

airports meet safety area requirements 

for the first time. These airports have 

been encouraged to install safety areas 

for over 10 years, and many have done 

so through Federal airport funding 

programs. Although the rule will not 

require immediate installation of these 

safety facilities at any class of airports, 

over time the eventual installation of 

safety areas at certificated airports will 

result in more safety in air 

transportation.

The following is a good example of 

the potential benefits from runway 

safety areas. On May 8, 1999, a SAAB 

340 aircraft overran a runway at New 

York’s John F. Kennedy International 

Airport. The airport had recently 

installed arresting material in 

compliance with part 139 safety area 

requirements that resulted in the 

airplane stopping 50 feet short of 

Thurston Bay. The incident resulted in 

very little damage to the aircraft and one 

minor passenger injury. In sharp 

contrast, an accident occurred on the 

same runway in 1984, before the 

arresting material was installed, resulted 

in an SAS DC–10 aircraft running into 

the bay. This accident resulted in 

multiple passenger injuries and 

extensive airplane damage. 

Emergency Response Services and 

Equipment 

An important safety benefit of this 

final rule is more widespread 

availability of emergency response 

services and equipment. These services 

are used to respond to airport 

emergencies, including aircraft 

accidents, medical emergencies in the 

terminal building and aircraft fueling 

fires or spills. 

Part 139 accident mitigation 

requirements provide a comprehensive 

response to aircraft accidents, and other 

emergencies. For example, required 

alarm and communication systems 

ensure that both ARFF and airport 

personnel are notified promptly of an 

accident, and alert other necessary 

emergency service providers in the local 

community (i.e., paramedic, police, 

ambulance service and hospitals). 

Similarly, accident mitigation measures 

ensure other needed emergency services 

are provided, including security and 

crowd control, removal of disabled 

aircraft and other debris from movement 

areas, transportation and facilities for 

uninjured and injured persons, and 

storage of deceased persons. All of these 

measures contribute to a comprehensive 

emergency response that mitigates the 

loss of passenger lives and property, 

prevents injury to responding 

personnel, and protects air carrier 

aircraft and the public from unsafe 

conditions. 

There is ample evidence that part 139 

accident mitigation requirements can 

save lives and reduce injuries. Perhaps 

the clearest example of that was an 

accident that occurred at Los Angeles 

International Airport on February 1, 

1991. This tragedy involved the 

collision of a U.S. AIR 737–300 and a 

Skywest Metro on Runway 24L. The 

crew and 10 passengers on the Metro 

were killed, as were some of the crew 

and 20 passengers on the 737–300. 

However, the NTSB credited the part 

139-required emergency response for 

saving lives. 

A major safety provision of the final 

rule is that it will extend the required 

availability of emergency response 

services and equipment at every landing 

and takeoff of scheduled air carrier 

aircraft with 10 to 30 seats. This 

capability is required now for air carrier 

operators with more than 30 seats, and, 

as discussed earlier, there is evidence 

that lives have been saved and injuries 

prevented or reduced as a result. In 

some cases, this protection may not 

currently be available for small aircraft 

operations at airports served by large air 

carrier aircraft. For example, an accident 

that occurred at Quincy, Illinois (a Class 

I airport) on November 19, 1996 might 

have been mitigated had ARFF been on 

site during the departure of a small air 

carrier aircraft. 

This accident involved the collision 

of a United Express Beech 1900C (a 

small aircraft) and a Beech King Air (a 

general aviation aircraft) during the

6420 Federal Register / Vol. 69, No. 27 / Tuesday, February 10, 2004 / Rules and Regulations 

ground operations of the two aircraft. 

These aircraft collided at the 

intersection of two runways. At the time 

of the accident, there were no large air 

carrier aircraft operations in progress or 

imminent, and, consequently, the 

airport operator was not required to 

provide emergency response services, 

and these services were not on the site. 

When required, emergency response 

services, including ARFF, were 

provided by the fire department, whose 

personnel would come to the airport 

from an offsite location to staff 

emergency equipment during the 

operations of large air carrier aircraft. 

All 10 passengers and 2 crew members 

aboard the United Express Beech 1900C 

and the two occupants aboard the King 

Air were killed as a result of post crash 

fires. 

The NTSB found that the speed with 

which the fire enveloped the King Air, 

and the intensity of the fire, precluded 

the survivability of the occupants. 

However, the occupants of the Beech 

1900C did have the opportunity to 

escape, but could not open external 

doors. The NTSB concluded, ‘‘if onairport ARFF protection had been 

required for this operation at Quincy 

Airport, lives might have been saved.’’

(NTSB Aircraft Accident Report—

Runway Collision United Express Flight 

5925 and Beechcraft King Air A90—

Quincy Municipal Airport, Illinois—

November 19, 1996—NTSB AAR–97/04, 

P.51.) 

Based on this accident history, a risk 

assessment provides a reasonable 

quantified estimate of the potential 

value of part 139 emergency response 

requirements. The final rule will extend 

these emergency services to passengers 

traveling in air carrier aircraft with 10 

to 30 passenger seats. For an accident in 

a 30 passenger seat aircraft occupied at 

60 percent of capacity (the industry 

average), the expected benefits equal 

$63 million based on 21 potentially 

prevented fatalities (18 passengers and 

three crew members) multiplied by $3 

million per prevented fatality. While 

$63 million is the expected benefit over 

a ten year horizon, using the Poisson 

distribution with a mean of one accident 

over a ten-year period, there is a 26 

percent chance of two or more such 

accidents with a value in excess of $100 

million. 

Fuel Storage Fires 

Another expected benefit of this rule 

is prevention/mitigation of fuel storage 

fires. The rule requires all classes of 

airports to address fuel storage fires in 

their disaster plans. This will better 

prepare airports to prevent and/or 

extinguish the kind of fire that occurred 

at the Stapleton International Airport in 

Denver, CO, on November 25, 1990. 

That fire erupted on a fuel farm about 

1.8 miles from the main terminal and 

burned for 48 hours, destroying about 3 

million gallons of fuel. Flight operations 

of a major air carrier were disrupted due 

to the lack of fuel, and the air carrier 

estimated total damage to have reached 

between $15 and $20 million. 

The NTSB concluded that the City 

and County of Denver (the airport 

certificate holder) and the fire 

department, in particular, apparently 

had not considered the possibility of a 

fire of this type since no procedures or 

contingency plans were in place. The 

FAA has determined that contingency 

plans that cover the possibility of a 

major fuel farm fire could result in 

similar fires being extinguished much 

sooner, perhaps resulting in 

considerably less damage. 

Snow and Ice Control 

Another safety benefit is expected 

from improved snow and ice control, 

which will reduce the potential for 

snow- and ice-related accidents. On 

March 17, 1993, a BAC–BA-Jetstream 

3101 aircraft was making a night 

instrument approach to Raleigh County 

Memorial Airport in Beckley, WV. 

Because the runway was not properly 

plowed, and berms of snow concealed 

the runway lights at ground level, the 

captain lost control after touchdown, 

and the airplane sustained substantial 

damage. 

This rule will require Class II and III 

airports to develop tailored snow and 

ice control plans. Class I airports are 

already required to have such plans, and 

Class IV airports are not required to 

have such plans. Although many of 

these classes of airports already have 

procedures for snow and ice removal, 

this rule will formalize consistent plans 

across all airports with scheduled air 

carrier services. The FAA concludes 

that this low-cost requirement to 

standardize responses to snow and ice 

conditions at certificated airports will 

significantly help prevent the kind of 

accident discussed above. 

Wildlife Hazard Management 

The expected benefit of this section of 

this final rule is the reduction of 

wildlife hazards to air carrier 

operations. Airports not currently 

certificated by the FAA are not required 

to meet part 139 wildlife hazard 

management requirements. At some of 

these airports, wildlife hazards already 

exist that under the final rule will 

require the airport operator to conduct 

a wildlife assessment and possibly the 

implementation of a wildlife hazard 

management plan. The expansion of 

wildlife hazard management 

requirements to these airports is 

intended to ensure that all airport 

certificate holders serving scheduled air 

carriers address wildlife hazards in a 

consistent and effective manner. 

Accordingly, the FAA expects to reduce 

the number of wildlife strikes that will 

otherwise occur. 

At Class III airports between 1991 and 

1997, there were 10 reported wildlife 

strikes involving 19-passenger seat 

Beech-1900 aircraft (22 potential total 

occupants). The FAA values each 

prevented fatality to be $3 million. FAA 

cost estimates for injuries range from 

$38,500 for a minor injury to $521,800 

for a serious injury. It is likely that 

without mitigation the past 10 or more 

wildlife strikes to aircraft will reoccur at 

Class III airports, affecting 10 to 130 

aircraft occupants. It is not unreasonable 

to expect that 10 percent of these 

occupants will incur minor to serious 

injury and that several may die as result 

of a wildlife strike. The FAA estimates 

that the minimum potential averted cost 

is several hundred thousand dollars; yet 

just one fatal accident raises the 

preventable cost to $3 million. 

With the structured approach of the 

final rule to resolving wildlife strikes to 

aircraft, it is very reasonable to expect 

that each airport solution will be one 

where the benefits exceed the costs, and 

in some cases, the net benefit may be 

substantial. Airport improvements to 

reduce wildlife hazards will ultimately 

provide a safer environment for all civil 

aircraft operations. Given the growing 

population of certain wildlife, the 

increasing number of aircraft operations 

and the history of reported wildlife 

strikes, potential benefits for just the 

newly certificated airports (37 Class III 

airports) range from a low of several 

million dollars (from damage and 

injuries avoided) to an estimate in 

excess of $10 million. 

The benefits of the wildlife strike 

provision of the final rule extend 

beyond all Class III airports to all 

certificated airports. However, the wide 

range of possible compliance methods 

forestall a reasonable range estimate of 

net benefits. It is very reasonable to 

expect that wildlife preventative action 

at each certificated airport will have 

benefits in excess of costs with systemwide benefits in the millions.

Costs 

Some of the requirements of this rule 

that will impose costs—such as 

improved snow and ice control; 

marking, signs, and lighting; and 

wildlife hazard management—are 

intended to prevent accidents. Other

Federal Register / Vol. 69, No. 27 / Tuesday, February 10, 2004 / Rules and Regulations 6421

requirements, such as emergency 

planning and improved emergency 

response capability, are intended to 

mitigate accidents should they occur. 

When the FAA published the NPRM 

the agency estimated that the present 

value of the 10-year costs of the 

proposed rule was about $46 million. 

Based on the comments received, the 

FAA increased the estimated costs for 

the final rule, primarily to allow for 

ARFF costs at airports that will be 

newly certificated as a result of this 

rule. 

The major items of this rule that are 

expected to impose costs are 

summarized below:

Major cost items Initial/capital

costs 

Annual recurring 

costs 

Risk Reduction Items (Subpart D—Operations): Personnel; Records; Marking, Signs, and Lighting; 

Snow and Ice Control; Handling and Storing of Hazardous Substances and Materials; Traffic and 

Wind Direction Indicators; Self-Inspection Program; Access to Movement Areas and Safety Areas; 

Wildlife Hazard Management ................................................................................................................... $1,495,316 $1,447,215 

Mitigation Items (ARFF, Airport Emergency Plan) ...................................................................................... 2,719,242 8,405,105 

Program Total—Current Dollars ........................................................................................................... $4,214,558 $9,852,320 

The FAA estimates that the present 

value of the 10-year cost of this rule is 

$73.4 million. A more detailed 

description of how these costs were 

estimated is contained in the full 

regulatory evaluation. 

The FAA has made an effort not to 

underestimate costs. As a result, the 

estimated costs of this rule may be high 

because it is largely based on assumed 

average costs being applicable to all 

airports in each class, when in actuality 

each airport will have requirements 

tailored to its individual situation. In 

the application of this rule, each airport 

(particularly the new Class III airports) 

may have already complied with this 

rule, or may receive relief from certain 

aspects of this rule under the exemption 

provisions. 

Benefit-Cost Comparison 

The estimated benefits and costs 

herein assume that the average airport 

incurs the full compliance cost and that 

the traveling public and society receives 

the associated benefit. Much of the 

difficulty to accurately assess the 

expected benefit and cost of this 

regulation is the complex nature of 

compliance with part 139 requirements. 

Each airport is unique with potentially 

different methods used by the airport 

operator to comply with part 139 

requirements. Further, there are very 

significant Federal policies in place to 

mitigate the economic impact of the 

final rule. These policies are discussed 

in length in a separate Report to 

Congress. This Report discusses the 

economic impact of the final rule on air 

service to Class III airports. 

As discussed in the Report to 

Congress, several factors may help to 

mitigate part 139 compliance costs. 

First, Congress has directed the FAA to 

set aside $15 million of AIP funds for 

certain capital expenditures that may be 

required by the final rule for four fiscal 

years. Second, the FAA will assist 

airport operators to obtain additional 

Federal funds, as appropriate. Third, at 

approximately two-thirds of these newly 

certificated airports (Class III airports), 

air carriers also receive federal EAS 

subsidies, so the Federal government 

will probably absorb most, if not all of 

the cost of the rule through increased 

subsidies to air carriers. Fourth, if 

Federal, state and local funding is not 

adequate, the FAA will seek alternative 

means of compliance with part 139 

requirements or will use its statutory 

authority to grant exemptions from 

requirements that would be too costly, 

burdensome, or impractical. 

The FAA estimates that one or more 

accidents that will be mitigated by 

compliance with emergency response 

requirements of the final rule will result 

in an estimated benefit ranging from $63 

million to well in excess of $100 

million. The FAA is not providing a 

single dollar value for the total benefits 

of the final rule because the range of the 

possible compliance methods is too 

great and complying with risk reduction 

and accident mitigation requirements 

may require multiple actions. The FAA 

does note that the benefits estimate is 

conservative and the potential error in 

assessing the benefits will be to 

underestimate total benefits. 

The FAA estimates that the present 

value of the 10-year cost of this final 

rule is about $73.4 million. This 

estimate is likely to be high because it 

is based on assumed average costs 

across all airports in each airport class. 

In the application of this rule, each 

airport may already be in compliance 

with all or certain requirements of this 

final rule, or may receive relief from 

certain aspects of the rule through 

alternate means of compliance or the 

exemption process. 

Thus, the FAA believes that 

numerous safety benefits will result 

from the multiple provisions in the final 

rule. These benefits will reduce the risk 

of future accidents and mitigate loss if 

another accident occurs. As noted 

above, the total cost estimate is 

conservative and does not include a 

host of policies and available funding 

designed to reduce the compliance cost 

of the final rule. Consequently, in view 

of the moderate costs and potential 

benefits, the FAA concludes that the 

benefits of the final rule justify the 

costs. 

Final Regulatory Flexibility Analysis 

(FRFA) 

The Regulatory Flexibility Act of 1980 

(RFA) establishes ‘‘as a principle of 

regulatory issuance that agencies shall 

endeavor, consistent with the objective 

of the rule and of applicable statutes, to 

fit regulatory and informational 

requirements to the scale of the 

business, organizations, and 

governmental jurisdictions subject to 

regulation.’’ To achieve that principle, 

the RFA requires agencies to solicit and 

consider flexible regulatory proposals 

and to consider the rationale for their 

actions. The RFA covers a wide range of 

small entities, including small 

businesses, not-for-profit organizations, 

and small governmental jurisdictions.

Agencies must perform a review to 

determine whether a proposed or final 

rule will have a significant economic 

impact on a substantial number of small 

entities. If the determination is that it 

will have such an impact, the agency 

must prepare a regulatory flexibility 

analysis as described in the RFA. 

However, if an agency determines that 

a proposed, or final, rule is not expected 

to have a significant economic impact 

on a substantial number of small 

entities, section 605(b) of the 1980 RFA 

provides that the head of the agency 

may so certify and a regulatory 

flexibility analysis is not required. The 

certification must include a statement 

providing the factual basis for this

6422 Federal Register / Vol. 69, No. 27 / Tuesday, February 10, 2004 / Rules and Regulations 

determination, and the reasoning should 

be clear. 

This rule will affect publicly owned 

airports. When the population of a 

public airport-owning entity is less than 

50,000, it is considered a small entity. 

Based upon the above review, the FAA 

concludes that this final rule will have 

a significant economic impact on a 

substantial number of small entities. 

Accordingly, the following final 

regulatory flexibility assessment was 

prepared as required by the RFA. 

Issues To Be Addressed in a Final 

Regulatory Flexibility Analysis 

The central focus of a final regulatory 

flexibility analysis, like the initial 

regulatory flexibility analysis (IRFA), is 

the requirement that agencies evaluate 

the impact of a rule on small entities 

and analyze regulatory alternatives that 

minimize the impact when there will be 

a significant economic impact on a 

substantial number of small entities. 

The five requirements, outlined in 

section 604(a)(1–5) of the 1980 RFA, are 

listed and discussed below: 

(1) A succinct statement of the need 

for, and objectives of, the rule. Before 

1996, the FAA’s statutory authority to 

certificate airports was limited to those 

airports serving air carrier operations 

using aircraft with more than 30 

passenger seats. However, this authority 

(49 U.S.C. 44706) was broadened by the 

Federal Aviation Administration 

Reauthorization Act of 1996 to allow the 

FAA to certificate airports, with the 

exception of those located in the State 

of Alaska, that serve any scheduled 

passenger operation of an air carrier 

operating aircraft designed for more 

than 9 passenger seats but less than 31 

passenger seats. The FAA’s existing 

authority to certificate airports serving 

air carrier operations conducted in 

aircraft with more than 30 seats 

remained unchanged. 

With this rule, the FAA intends to 

extend airport certification standards to 

airports serving scheduled air carrier 

operations conducted in aircraft 

designed for more than 9 passenger 

seats but less than 31 passenger seats. 

The primary objective of this final 

rule is to ensure safety in air 

transportation by regulating the 

operation and maintenance of airports 

serving certain scheduled air carrier 

operations. The rule is necessary to 

prevent future accidents similar to those 

that have recently occurred and to 

mitigate fatalities and injuries when 

accidents do occur. 

(2) A summary of the significant 

issues raised by the public comments in 

response to the IRFA, a summary of the 

assessment of the agency of such issues, 

and a statement of any changes made in 

the proposed rule as a result of such 

comments. There were a substantial 

number of comments received from 

operators of airports serving small air 

carrier operations concerned about the 

financial burden that the proposed rule 

would place on them. In particular these 

commenters are concerned about 

personnel costs to comply with 

proposed ARFF requirements. 

In response to public comments, 

several changes were made to the final 

rule. A primary change is that the 

sections of the proposed rule that dealt 

with obtaining an exemption from the 

ARFF requirements have been clarified 

for the final rule. The final rule is more 

explicit in describing how to apply for 

an exemption. The FAA believes that 

the exemption provision will result in 

actual compliance costs that are 

substantially less than those estimated 

in the final regulatory evaluation. The 

agency was not able to quantify the 

reduction in compliance costs resulting 

from possible exemptions. However, it 

should be noted that all requirements of 

part 139 will be tailored to each airport 

through the ACM. In addition, the time 

period to accomplish some 

requirements, such as the preparation of 

the ACM, was extended, especially for 

the smaller airports. 

(3) A description of, and an estimate 

of the number of, small entities to which 

the rule will apply or an explanation of 

why no such estimate is available. The 

Small Business Administration (SBA) 

classifies all airports that are operated 

under the airport ownership of a public 

entity with a population of 50,000 or 

less as small entities. Using the SBA’s 

definition of a ‘‘small’’ public entity, 

there are more than 200 small entity 

airports that will be affected by this 

rule. Most of the small entities are 

expected to be Class I airports (more 

than 100 are small entities), which are 

already certificated under part 139. The 

largest economic impact is expected to 

occur to the Class III airports 

(approximately 25 are small entities), 

which would be newly certificated 

under the final rule. 

(4) A description of the projected 

reporting, recordkeeping, and other 

compliance requirements of the rule, 

including an estimate of the classes of 

small entities that will be subject to the 

requirement and the type of professional 

skills necessary for preparation of the 

report or record. The final rule will 

create additional reporting or 

recordkeeping requirements beyond 

those already specified in existing part 

139. For each airport, the preparation of 

this documentation may involve the 

airport manager, operations and 

maintenance personnel, and clerical 

staff. For each small entity, the FAA 

estimates the average initial hours 

required to set up a recordkeeping 

system will be 70 hours and expects a 

continuing additional paperwork 

requirement of about 90 hours annually. 

(5) A description of the steps the 

agency has taken to minimize the 

significant economic impact on small 

entities consistent with the stated 

objectives of applicable statutes, 

including a statement of the factual, 

policy, and legal reasons for selecting 

the alternative adopted in the final rule, 

and why each one of the other 

significant alternatives to the rule 

considered by the agency that affect the 

impact on small entities was rejected.

The FAA extensively considered several 

alternatives, described in the IRFA, and 

determined that the alternative chosen 

for the NPRM was the only alternative 

that was relatively affordable and 

achieved the safety objectives of the 

proposed rule. This initial alternative 

was subjected to public scrutiny during 

the comment period of the NPRM 

process. The comments received were 

responded to, as described above, and 

this final rule is the selected alternative. 

Extended Discussion of the Rule 

Comments on Affordability and Safety 

The last major revision of part 139 

occurred in November 1987. Since then, 

industry practices and technology have 

changed significantly. Subsequently, the 

FAA monitored the effectiveness of part 

139 and has taken this opportunity to 

update part 139 requirements.

The FAA initiated this rulemaking to 

ensure safety in air transportation at 

airports serving small air carrier 

operations, fully appreciating the 

financial limitations of these airports. In 

1996, Congress authorized the FAA to 

certificate airports serving small air 

carrier operations to ensure further 

safety at airports providing scheduled 

air service. This was the same year that 

all occupants died in a collision of a 

United Express Beech 1900C (under 30 

seat air carrier aircraft) and a Beech 

King Air (a general aviation aircraft). 

The NTSB concluded that ‘‘* * * if onairport ARFF protection had been 

required for this operation at Quincy 

Regional Airport, lives might have been 

saved.’’

An industry/FAA evaluation of 

possible regulatory alternatives for the 

certification of airports serving small air 

carrier aircraft concluded that there 

exists a need to require at least some 

minimum level of both risk reduction 

and accident mitigation measures at 

airports during operations of smaller air 

carrier airplanes.

Federal Register / Vol. 69, No. 27 / Tuesday, February 10, 2004 / Rules and Regulations 6423

The FAA recognizes the need to 

provide some flexibility in the 

implementation of certain safety 

measures at airports with infrequent air 

carrier service or where local resources 

are severely limited. Airports in smaller 

communities do not always have the 

resources to support their airports at the 

same level as large metropolitan areas 

without adversely affecting other 

community services and infrastructure. 

There are other mitigating factors. The 

FAA permits alternate means of 

compliance to accommodate local 

conditions and uses its statutory 

authority to grant exemptions from part 

139 requirements, as appropriate. This 

statutory authority requires the FAA to 

ensure that an airport it certificates 

provides for the operation and 

maintenance of adequate safety 

equipment. 

There are several methods available to 

small-entity airports to mitigate the 

economic impact of this rule. One is 

that the Airport Improvement Program 

(AIP) funding (often supplemented by 

state grants) is available for certain 

capital expenditures that may be 

required by the rule such as firefighting 

equipment, airport marking and signs. 

Another avenue is the Essential Air 

Service (EAS) Program. For Class III 

airports that are owned by small 

communities, serve a limited number of 

passengers, and operate at a loss, it is 

likely that much of the final actual costs 

to the airport would be passed on to the 

air carriers. At airports where carriers 

receive EAS subsidies (approximately 

two-thirds of all Class III airports) the 

Federal Government will probably 

absorb most, if not all, of the cost of the 

rule through increased subsidies. 

By tailoring compliance to 

accommodate local conditions, and/or 

making use of the statutory exemption, 

the FAA will maintain the necessary 

oversight of ARFF, while ensuring that 

the ARFF requirements are appropriate 

for the airport size and type of air carrier 

operations. There will not be a blanket 

exemption for airports with infrequent 

or smaller air carrier operations, nor 

will the agency relieve an airport from 

the obligation to provide some level of 

ARFF coverage. 

Summary 

After considering the alternatives for 

the certification of airports serving small 

air carrier operations and alternatives 

for updating part 139 (as specified in the 

IFRA), the FAA determined that this 

rule is necessary to ensure safety in air 

transportation. However, to 

accommodate variations in airport size 

and operation, the FAA may allow 

alternative means of compliance with 

part 139 requirements. This will allow 

the most cost effective and flexible 

method of ensuring safety to be 

employed at all covered airports while 

providing for the special needs of small 

entities. 

International Trade Impact Assessment 

The Trade Agreement Act of 1979 

prohibits Federal agencies from 

engaging in any standards or related 

activities that create unnecessary 

obstacles to the foreign commerce of the 

United States. Legitimate domestic 

objectives, such as safety, are not 

considered unnecessary obstacles. The 

statute also requires consideration of 

international standards and, where 

appropriate, that they be the basis for 

U.S. standards. 

In accordance with the above statute, 

the FAA has assessed the potential 

effect of this final rule and has 

determined that it will have only a 

domestic impact and therefore create no 

obstacles to the foreign commerce of the 

United States. 

Unfunded Mandates Reform Act 

The Unfunded Mandates Reform Act 

of 1995 (2 U.S.C. 1532–1538) is 

intended, among other things, to curb 

the practice of imposing unfunded 

Federal mandates on State, local, and 

tribal governments. 

Title II of the Act requires each 

Federal agency to prepare a written 

statement assessing the effects of any 

Federal mandate in a proposed or final 

agency rule that may result in the 

expenditure of $100 million or more 

(adjusted annually for inflation in any 

one year) by State, local, and tribal 

governments (in the aggregate) or by the 

private sector. Such a mandate is 

deemed to be a ‘‘significant regulatory 

action.’’

This final rule does not contain such 

a mandate. Therefore, the requirements 

of Title II of the Unfunded Mandates 

Reform Act of 1995 do not apply.

Executive Order 3132, Federalism 

The FAA has analyzed this final rule 

under the principles and criteria of 

Executive Order 13132, Federalism. 

Most airports subject to this rule are 

owned, operated, or regulated by a local 

governmental body (such as a city or 

county government), which is either 

incorporated by or part of a State. In a 

few cases, the airports are operated 

directly by the States. The FAA has 

determined that this rule would have 

minimal direct effect on the States and 

would not alter the relationship 

established by law between the airport 

certificate holders and the FAA. The 

FAA considers the annual costs of 

compliance with this rule low compared 

with the resources available to the 

airports. Before issuing the NPRM 

leading to this rule, the FAA consulted 

with representatives of the airports 

through its ARAC. The FAA also 

consulted with the States through 

various national associations of state 

and local governments. In consulting 

with state governments, the FAA 

provided the opportunity for them to 

comment on the NPRM leading to this 

rule. 

After due consideration of comments 

received, the FAA has determined that 

this action would not have a substantial 

direct effect on the States, on the 

relationship between the Federal 

Government and the States, or on the 

distribution of power and 

responsibilities among the various 

levels of government. Therefore, the 

FAA has determined that this action 

does not have federalism implications. 

Environmental Analysis 

FAA Order 1050.1D defines the FAA 

actions that may be categorically 

excluded from preparation of a National 

Environmental Policy Act (NEPA) 

environmental impact statement. In 

accordance with FAA Order 1050.1D, 

appendix 4, paragraph 4(j), this 

rulemaking action qualifies for a 

categorical exclusion. 

Regulations That Significantly Affect 

Energy Supply, Distribution, or Use 

The FAA has analyzed this NPRM 

under Executive Order 13211, Actions 

Concerning Regulations that 

Significantly Affect Energy Supply, 

Distribution, or Use (May 18, 2001). We 

have determined that it is not a 

‘‘significant energy action’’ under the 

executive order because it is not a 

‘‘significant regulatory action’’ under 

Executive Order 12866, and it is not 

likely to have a significant adverse effect 

on the supply, distribution, or use of 

energy.

List of Subjects 

14 CFR Part 121 

Air carriers, Aircraft, Aviation safety, 

Charter flights, Safety, Transportation. 

14 CFR Part 139 

Air carriers, Airports, Aviation safety, 

Reporting and recordkeeping 

requirements.

The Amendment

■ In consideration of the foregoing, the 

Federal Aviation Administration 

amends Chapter I of Title 14, Code of 

Federal Regulations as follows:

6424 Federal Register / Vol. 69, No. 27 / Tuesday, February 10, 2004 / Rules and Regulations 

PART 121—OPERATING 

REQUIREMENTS: DOMESTIC, FLAG, 

AND SUPPLEMENTAL OPERATIONS

■ 1. The authority citation for part 121 

continues to read as follows:

Authority: 49 U.S.C. 106(g), 40113, 40119, 

41706, 44101, 44701–44702, 44705, 44709–

44711, 44713, 44716–44717, 44722, 44901, 

44903–44904, 44912, 46105.

■ 2. Revise § 121.590 to read as follows:

§ 121.590 Use of certificated land airports 

in the United States. 

(a) Except as provided in paragraphs 

(b) or (c) of this section, or unless 

authorized by the Administrator under 

49 U.S.C. 44706(c), no air carrier and no 

pilot being used by an air carrier may 

operate, in the conduct of a domestic 

type operation, flag type operation, or 

supplemental type operation, an 

airplane at a land airport in any State of 

the United States, the District of 

Columbia, or any territory or possession 

of the United States unless that airport 

is certificated under part 139 of this 

chapter. Further, after June 9, 2005 for 

Class I airports and after December 9, 

2005 for Class II, III, and IV airports, 

when an air carrier and a pilot being 

used by the air carrier are required to 

operate at an airport certificated under 

part 139 of this chapter, the air carrier 

and the pilot may only operate at that 

airport if the airport is classified under 

part 139 to serve the type airplane to be 

operated and the type of operation to be 

conducted. 

(b) An air carrier and a pilot being 

used by the air carrier in the conduct of 

a domestic type operation, flag type 

operation, or supplemental type 

operation may designate and use as a 

required alternate airport for departure 

or destination an airport that is not 

certificated under part 139 of this 

chapter. 

(c) An air carrier and a pilot used by 

the air carrier in conducting a domestic 

type operation, flag type operation, or 

supplemental type operation may 

operate an airplane at an airport 

operated by the U.S. Government that is 

not certificated under part 139 of this 

chapter, only if that airport meets the 

equivalent—

(1) Safety standards for airports 

certificated under part 139 of this 

chapter; and 

(2) Airport classification requirements 

under part 139 to serve the type airplane 

to be operated and the type of operation 

to be conducted. 

(d) An air carrier, a commercial 

operator, and a pilot being used by the 

air carrier or the commercial operator—

when conducting a passenger-carrying 

airplane operation under this part that 

is not a domestic type operation, a flag 

type operation, or a supplemental type 

operation—may operate at a land airport 

not certificated under part 139 of this 

chapter only when the following 

conditions are met: 

(1) The airport is adequate for the 

proposed operation, considering such 

items as size, surface, obstructions, and 

lighting. 

(2) For an airplane carrying 

passengers at night, the pilot may not 

take off from, or land at, an airport 

unless—

(i) The pilot has determined the wind 

direction from an illuminated wind 

direction indicator or local ground 

communications or, in the case of 

takeoff, that pilot’s personal 

observations; and 

(ii) The limits of the area to be used 

for landing or takeoff are clearly shown 

by boundary or runway marker lights. If 

the area to be used for takeoff or landing 

is marked by flare pots or lanterns, their 

use must be authorized by the 

Administrator. 

(e) A commercial operator and a pilot 

used by the commercial operator in 

conducting a domestic type operation, 

flag type operation, or supplemental 

type operation may operate an airplane 

at an airport operated by the U.S. 

Government that is not certificated 

under part 139 of this chapter only if 

that airport meets the equivalent—

(1) Safety standards for airports 

certificated under part 139 of this 

chapter; and

(2) Airport classification requirements 

under part 139 of this chapter to serve 

the type airplane to be operated and the 

type of operation to be conducted. 

(f) For the purpose of this section, the 

terms—

Domestic type operation means any 

domestic operation conducted with—

(1) An airplane designed for at least 

31 passenger seats (as determined by the 

aircraft type certificate issued by a 

competent civil aviation authority) at 

any land airport in any State of the 

United States, the District of Columbia, 

or any territory or possession of the 

United States; or 

(2) An airplane designed for more 

than 9 passenger seats but less than 31 

passenger seats (as determined by the 

aircraft type certificate issued by a 

competent civil aviation authority) at 

any land airport in any State of the 

United States (except Alaska), the 

District of Columbia, or any territory or 

possession of the United States. 

Flag type operation means any flag 

operation conducted with—

(1) An airplane designed for at least 

31 passenger seats (as determined by the 

aircraft type certificate issued by a 

competent civil aviation authority) at 

any land airport in any State of the 

United States, the District of Columbia, 

or any territory or possession of the 

United States; or 

(2) An airplane designed for more 

than 9 passenger seats but less than 31 

passenger seats (as determined by the 

aircraft type certificate issued by a 

competent civil aviation authority) at 

any land airport in any State of the 

United States (except Alaska), the 

District of Columbia, or any territory or 

possession of the United States. 

Supplemental type operation means 

any supplemental operation (except an 

all-cargo operation) conducted with an 

airplane designed for at least 31 

passenger seats (as determined by the 

aircraft type certificate issued by a 

competent civil aviation authority) at 

any land airport in any State of the 

United States, the District of Columbia, 

or any territory or possession of the 

United States. 

United States means the States of the 

United States, the District of Columbia, 

and the territories and possessions of 

the United States.

Note: Special Statutory Requirement to 

Operate to or From a Part 139 Airport. Each 

air carrier that provides—in an aircraft (e.g.,

airplane, rotorcraft, etc.) designed for more 

than 9 passenger seats—regularly scheduled 

charter air transportation for which the 

public is provided in advance a schedule 

containing the departure location, departure 

time, and arrival location of the flight must 

operate to and from an airport certificated 

under part 139 of this chapter in accordance 

with 49 U.S.C. 41104(b). That statutory 

provision contains stand-alone requirements 

for such air carriers and special exceptions 

for operations in Alaska and outside the 

United States. Nothing in § 121.590 exempts 

the air carriers described in this note from 

the requirements of 49 U.S.C. 41104(b). 

Certain operations by air carriers that 

conduct public charter operations under 14 

CFR part 380 are covered by the statutory 

requirements to operate to and from part 139 

airports. See 49 U.S.C. 41104(b).

■ 3. Revise part 139 to read as follows:

PART 139—CERTIFICATION OF 

AIRPORTS

Subpart A—General

Sec. 

139.1 Applicability. 

139.3 Delegation of authority. 

139.5 Definitions. 

139.7 Methods and procedures for 

compliance.

Subpart B—Certification 

139.101 General requirements. 

139.103 Application for certificate. 

139.105 Inspection authority. 

139.107 Issuance of certificate. 

139.109 Duration of certificate.

Federal Register / Vol. 69, No. 27 / Tuesday, February 10, 2004 / Rules and Regulations 6425

139.111 Exemptions. 

139.113 Deviations.

Subpart C—Airport Certification Manual 

139.201 General requirements. 

139.203 Contents of Airport Certification 

Manual. 

139.205 Amendment of Airport 

Certification Manual.

Subpart D—Operations 

139.301 Records. 

139.303 Personnel. 

139.305 Paved areas. 

139.307 Unpaved areas. 

139.309 Safety areas. 

139.311 Marking, signs, and lighting. 

139.313 Snow and ice control. 

139.315 Aircraft rescue and firefighting: 

Index determination. 

139.317 Aircraft rescue and firefighting: 

Equipment and agents. 

139.319 Aircraft rescue and firefighting: 

Operational requirements. 

139.321 Handling and storing of hazardous 

substances and materials. 

139.323 Traffic and wind direction 

indicators. 

139.325 Airport emergency plan. 

139.327 Self-inspection program. 

139.329 Pedestrians and Ground Vehicles. 

139.331 Obstructions. 

139.333 Protection of NAVAIDS. 

139.335 Public protection. 

139.337 Wildlife hazard management. 

139.339 Airport condition reporting. 

139.341 Identifying, marking, and lighting 

construction and other unserviceable 

areas. 

139.343 Noncomplying conditions.

Authority: 49 U.S.C. 106(g), 40113, 44701–

44706, 44709, 44719

Subpart A—General

§ 139.1 Applicability. 

(a) This part prescribes rules 

governing the certification and 

operation of airports in any State of the 

United States, the District of Columbia, 

or any territory or possession of the 

United States serving any—

(1) Scheduled passenger-carrying 

operations of an air carrier operating 

aircraft designed for more than 9 

passenger seats, as determined by the 

aircraft type certificate issued by a 

competent civil aviation authority; and

(2) Unscheduled passenger-carrying 

operations of an air carrier operating 

aircraft designed for at least 31 

passenger seats, as determined by the 

aircraft type certificate issued by a 

competent civil aviation authority. 

(b) This part applies to those portions 

of a joint-use or shared-use airport that 

are within the authority of a person 

serving passenger-carrying operations 

defined in paragraphs (a)(1) and (a)(2) of 

this section. 

(c) This part does not apply to—

(1) Airports serving scheduled air 

carrier operations only by reason of 

being designated as an alternate airport; 

(2) Airports operated by the United 

States; 

(3) Airports located in the State of 

Alaska that only serve scheduled 

operations of small air carrier aircraft 

and do not serve scheduled or 

unscheduled operations of large air 

carrier aircraft; 

(4) Airports located in the State of 

Alaska during periods of time when not 

serving operations of large air carrier 

aircraft; or 

(5) Heliports.

§ 139.3 Delegation of authority. 

The authority of the Administrator to 

issue, deny, and revoke Airport 

Operating Certificates is delegated to the 

Associate Administrator for Airports, 

Director of Airport Safety and 

Standards, and Regional Airports 

Division Managers.

§ 139.5 Definitions. 

The following are definitions of terms 

used in this part: 

AFFF means aqueous film forming 

foam agent. 

Air carrier aircraft means an aircraft 

that is being operated by an air carrier 

and is categorized as either a large air 

carrier aircraft if designed for at least 31 

passenger seats or a small air carrier 

aircraft if designed for more than 9 

passenger seats but less than 31 

passenger seats, as determined by the 

aircraft type certificate issued by a 

competent civil aviation authority. 

Air carrier operation means the 

takeoff or landing of an air carrier 

aircraft and includes the period of time 

from 15 minutes before until 15 minutes 

after the takeoff or landing. 

Airport means an area of land or other 

hard surface, excluding water, that is 

used or intended to be used for the 

landing and takeoff of aircraft, including 

any buildings and facilities. 

Airport Operating Certificate means a 

certificate, issued under this part, for 

operation of a Class I, II, III, or IV 

airport. 

Average daily departures means the 

average number of scheduled departures 

per day of air carrier aircraft computed 

on the basis of the busiest 3 consecutive 

calendar months of the immediately 

preceding 12 consecutive calendar 

months. However, if the average daily 

departures are expected to increase, 

then ‘‘average daily departures’’ may be 

determined by planned rather than 

current activity, in a manner authorized 

by the Administrator. 

Certificate holder means the holder of 

an Airport Operating Certificate issued 

under this part. 

Class I airport means an airport 

certificated to serve scheduled 

operations of large air carrier aircraft 

that can also serve unscheduled 

passenger operations of large air carrier 

aircraft and/or scheduled operations of 

small air carrier aircraft. 

Class II airport means an airport 

certificated to serve scheduled 

operations of small air carrier aircraft 

and the unscheduled passenger 

operations of large air carrier aircraft. A 

Class II airport cannot serve scheduled 

large air carrier aircraft. 

Class III airport means an airport 

certificated to serve scheduled 

operations of small air carrier aircraft. A 

Class III airport cannot serve scheduled 

or unscheduled large air carrier aircraft. 

Class IV airport means an airport 

certificated to serve unscheduled 

passenger operations of large air carrier 

aircraft. A Class IV airport cannot serve 

scheduled large or small air carrier 

aircraft. 

Clean agent means an electrically 

nonconducting volatile or gaseous fire 

extinguishing agent that does not leave 

a residue upon evaporation and has 

been shown to provide extinguishing 

action equivalent to halon 1211 under 

test protocols of FAA Technical Report 

DOT/FAA/AR–95/87. 

Heliport means an airport, or an area 

of an airport, used or intended to be 

used for the landing and takeoff of 

helicopters. 

Index means the type of aircraft 

rescue and firefighting equipment and 

quantity of fire extinguishing agent that 

the certificate holder must provide in 

accordance with § 139.315. 

Joint-use airport means an airport 

owned by the United States that leases 

a portion of the airport to a person 

operating an airport specified under 

§ 139.1(a).

Movement area means the runways, 

taxiways, and other areas of an airport 

that are used for taxiing, takeoff, and 

landing of aircraft, exclusive of loading 

ramps and aircraft parking areas. 

Regional Airports Division Manager

means the airports division manager for 

the FAA region in which the airport is 

located. 

Safety area means a defined area 

comprised of either a runway or taxiway 

and the surrounding surfaces that is 

prepared or suitable for reducing the 

risk of damage to aircraft in the event of 

an undershoot, overshoot, or excursion 

from a runway or the unintentional 

departure from a taxiway. 

Scheduled operation means any 

common carriage passenger-carrying 

operation for compensation or hire 

conducted by an air carrier for which 

the air carrier or its representatives 

offers in advance the departure location, 

departure time, and arrival location. It

6426 Federal Register / Vol. 69, No. 27 / Tuesday, February 10, 2004 / Rules and Regulations 

does not include any operation that is 

conducted as a supplemental operation 

under 14 CFR part 121 or public charter 

operations under 14 CFR part 380. 

Shared-use airport means a U.S. 

Government-owned airport that is colocated with an airport specified under 

§ 139.1(a) and at which portions of the 

movement areas and safety areas are 

shared by both parties. 

Unscheduled operation means any 

common carriage passenger-carrying 

operation for compensation or hire, 

using aircraft designed for at least 31 

passenger seats, conducted by an air 

carrier for which the departure time, 

departure location, and arrival location 

are specifically negotiated with the 

customer or the customer’s 

representative. It includes any 

passenger-carrying supplemental 

operation conducted under 14 CFR part 

121 and any passenger-carrying public 

charter operation conducted under 14 

CFR part 380. 

Wildlife hazard means a potential for 

a damaging aircraft collision with 

wildlife on or near an airport. As used 

in this part, ‘‘wildlife’’ includes feral 

animals and domestic animals out of the 

control of their owners.

Note: Special Statutory Requirement To 

Operate to or From a Part 139 Airport. Each 

air carrier that provides—in an aircraft 

designed for more than 9 passenger seats—

regularly scheduled charter air transportation 

for which the public is provided in advance 

a schedule containing the departure location, 

departure time, and arrival location of the 

flight must operate to and from an airport 

certificated under part 139 of this chapter in 

accordance with 49 U.S.C. 41104(b). That 

statutory provision contains stand-alone 

requirements for such air carriers and special 

exceptions for operations in Alaska and 

outside the United States. Certain operations 

by air carriers that conduct public charter 

operations under 14 CFR part 380 are 

covered by the statutory requirements to 

operate to and from part 139 airports. See 49 

U.S.C. 41104(b).

§ 139.7 Methods and procedures for 

compliance. 

Certificate holders shall comply with 

requirements prescribed by subparts C 

and D of this part in a manner 

authorized by the Administrator. FAA 

Advisory Circulars contain methods and 

procedures for compliance with this 

part that are acceptable to the 

Administrator.

Subpart B—Certification

§ 139.101 General requirements. 

(a) Except as otherwise authorized by 

the Administrator, no person may 

operate an airport specified under 

§ 139.1 of this part without an Airport 

Operating Certificate or in violation of 

that certificate, the applicable 

provisions, or the approved Airport 

Certification Manual. 

(b) Each certificate holder shall adopt 

and comply with an Airport 

Certification Manual as required under 

§ 139.203. 

(c) Persons required to have an 

Airport Operating Certificate under this 

part shall submit their Airport 

Certification Manual to the FAA for 

approval, in accordance with the 

following schedule: 

(1) Class I airports—6 months after 

June 9, 2004. 

(2) Class II, III, and IV airports—12 

months after June 9, 2004.

§ 139.103 Application for certificate. 

Each applicant for an Airport 

Operating Certificate shall—

(a) Prepare and submit an application, 

in a form and in the manner prescribed 

by the Administrator, to the Regional 

Airports Division Manager. 

(b) Submit with the application, two 

copies of an Airport Certification 

Manual prepared in accordance with 

subpart C of this part.

§ 139.105 Inspection authority. 

Each applicant for, or holder of, an 

Airport Operating Certificate shall allow 

the Administrator to make any 

inspections, including unannounced 

inspections, or tests to determine 

compliance with 49 U.S.C. 44706 and 

the requirements of this part.

§ 139.107 Issuance of certificate. 

An applicant for an Airport Operating 

Certificate is entitled to a certificate if—

(a) The applicant provides written 

documentation that air carrier service 

will begin on a date certain. 

(b) The applicant meets the provisions 

of § 139.103. 

(c) The Administrator, after 

investigation, finds the applicant is 

properly and adequately equipped and 

able to provide a safe airport operating 

environment in accordance with—

(1) Any limitation that the 

Administrator finds necessary to ensure 

safety in air transportation. 

(2) The requirements of the Airport 

Certification Manual, as specified under 

§ 139.203. 

(3) Any other provisions of this part 

that the Administrator finds necessary 

to ensure safety in air transportation. 

(d) The Administrator approves the 

Airport Certification Manual.

§ 139.109 Duration of certificate. 

An Airport Operating Certificate 

issued under this part is effective until 

the certificate holder surrenders it or the 

certificate is suspended or revoked by 

the Administrator.

§ 139.111 Exemptions. 

(a) An applicant or a certificate holder 

may petition the Administrator under 

14 CFR part 11, General Rulemaking 

Procedures, of this chapter for an 

exemption from any requirement of this 

part. 

(b) Under 49 U.S.C. 44706(c), the 

Administrator may exempt an applicant 

or a certificate holder that enplanes 

annually less than one-quarter of 1 

percent of the total number of 

passengers enplaned at all air carrier 

airports from all, or part, of the aircraft 

rescue and firefighting equipment 

requirements of this part on the grounds 

that compliance with those 

requirements is, or would be, 

unreasonably costly, burdensome, or 

impractical. 

(1) Each petition filed under this 

paragraph must—

(i) Be submitted in writing at least 120 

days before the proposed effective date 

of the exemption; 

(ii) Set forth the text of §§ 139.317 or 

139.319 from which the exemption is 

sought; 

(iii) Explain the interest of the 

certificate holder in the action 

requested, including the nature and 

extent of relief sought; and 

(iv) Contain information, views, or 

arguments that demonstrate that the 

requirements of §§ 139.317 or 139.319 

would be unreasonably costly, 

burdensome, or impractical. 

(2) Information, views, or arguments 

provided under paragraph (b)(1) of this 

section shall include the following 

information pertaining to the airport for 

which the Airport Operating Certificate 

is held:

(i) An itemized cost to comply with 

the requirement from which the 

exemption is sought; 

(ii) Current staffing levels; 

(iii) The current annual financial 

report, such as a single audit report or 

FAA Form 5100–127, Operating and 

Financial Summary; 

(iv) Annual passenger enplanement 

data for the previous 12 calendar 

months; 

(v) The type and frequency of air 

carrier operations served; 

(vi) A history of air carrier service; 

(vii) Anticipated changes to air carrier 

service; 

(c) Each petition filed under this 

section must be submitted in duplicate 

to the—

(1) Regional Airports Division 

Manager and 

(2) U.S. Department of 

Transportation’s Docket Management 

System, as specified under 14 CFR part 

11.

Federal Register / Vol. 69, No. 27 / Tuesday, February 10, 2004 / Rules and Regulations 6427

§ 139.113 Deviations. 

In emergency conditions requiring 

immediate action for the protection of 

life or property, the certificate holder 

may deviate from any requirement of 

subpart D of this part, or the Airport 

Certification Manual, to the extent 

required to meet that emergency. Each 

certificate holder who deviates from a 

requirement under this section shall, 

within 14 days after the emergency, 

notify the Regional Airports Division 

Manager of the nature, extent, and 

duration of the deviation. When 

requested by the Regional Airports 

Division Manager, the certificate holder 

shall provide this notification in 

writing.

Subpart C—Airport Certification 

Manual

§ 139.201 General requirements. 

(a) No person may operate an airport 

subject to this part unless that person 

adopts and complies with an Airport 

Certification Manual, as required under 

this part, that—

(1) Has been approved by the 

Administrator; 

(2) Contains only those items 

authorized by the Administrator; 

(3) Is in printed form and signed by 

the certificate holder acknowledging the 

certificate holder’s responsibility to 

operate the airport in compliance with 

the Airport Certification Manual 

approved by the Administrator; and 

(4) Is in a form that is easy to revise 

and organized in a manner helpful to 

the preparation, review, and approval 

processes, including a revision log. In 

addition, each page or attachment must 

include the date of the Administrator’s 

initial approval or approval of the latest 

revision. 

(b) Each holder of an Airport 

Operating Certificate shall—

(1) Keep its Airport Certification 

Manual current at all times; 

(2) Maintain at least one complete and 

current copy of its approved Airport 

Certification Manual on the airport, 

which will be available for inspection 

by the Administrator; and 

(3) Furnish the applicable portions of 

the approved Airport Certification 

Manual to airport personnel responsible 

for its implementation. 

(c) Each certificate holder shall ensure 

that the Regional Airports Division 

Manager is provided a complete copy of 

its most current approved Airport 

Certification Manual, as specified under 

paragraph (b)(2) of this section, 

including any amendments approved 

under § 139.205. 

(d) FAA Advisory Circulars contain 

methods and procedures for the 

development of Airport Certification 

Manuals that are acceptable to the 

Administrator.

§ 139.203 Contents of Airport Certification 

Manual. 

(a) Except as otherwise authorized by 

the Administrator, each certificate 

holder shall include in the Airport 

Certification Manual a description of 

operating procedures, facilities and 

equipment, responsibility assignments, 

and any other information needed by 

personnel concerned with operating the 

airport in order to comply with 

applicable provisions of subpart D of 

this part and paragraph (b) of this 

section. 

(b) Except as otherwise authorized by 

the Administrator, the certificate holder 

shall include in the Airport Certification 

Manual the following elements, as 

appropriate for its class:

REQUIRED AIRPORT CERTIFICATION MANUAL ELEMENTS

Manual elements 

Airport certificate class 

Class I Class II Class III Class IV 

1. Lines of succession of airport operational responsibility ............................. X X X X 

2. Each current exemption issued to the airport from the requirements of 

this part ........................................................................................................ X X X X 

3. Any limitations imposed by the Administrator ............................................. X X X X 

4. A grid map or other means of identifying locations and terrain features on 

and around the airport that are significant to emergency operations .......... X X X X 

5. The location of each obstruction required to be lighted or marked within 

the airport’s area of authority ....................................................................... X X X X 

6. A description of each movement area available for air carriers and its 

safety areas, and each road described in § 139.319(k) that serves it ........ X X X X 

7. Procedures for avoidance of interruption or failure during construction 

work of utilities serving facilities or NAVAIDS that support air carrier operations ............................................................................................................ X X X 

8. A description of the system for maintaining records, as required under 

§ 139.301 ...................................................................................................... X X X X 

9. A description of personnel training, as required under § 139.303 .............. X X X X 

10. Procedures for maintaining the paved areas, as required under 

§ 139.305 ...................................................................................................... X X X X 

11. Procedures for maintaining the unpaved areas, as required under 

§ 139.307 ...................................................................................................... X X X X 

12. Procedures for maintaining the safety areas, as required under 

§ 139.309 ...................................................................................................... X X X X 

13. A plan showing the runway and taxiway identification system, including 

the location and inscription of signs, runway markings, and holding position markings, as required under § 139.311 ................................................ X X X X 

14. A description of, and procedures for maintaining, the marking, signs, 

and lighting systems, as required under § 139.311 ..................................... X X X X 

15. A snow and ice control plan, as required under § 139.313 ...................... X X X 

16. A description of the facilities, equipment, personnel, and procedures for 

meeting the aircraft rescue and firefighting requirements, in accordance 

with §§ 139.315, 139.317 and 139.319 ........................................................ X X X X 

17. A description of any approved exemption to aircraft rescue and firefighting requirements, as authorized under § 139.111 ................................ X X X X 

6428 Federal Register / Vol. 69, No. 27 / Tuesday, February 10, 2004 / Rules and Regulations 

REQUIRED AIRPORT CERTIFICATION MANUAL ELEMENTS—Continued

Manual elements 

Airport certificate class 

Class I Class II Class III Class IV 

18. Procedures for protecting persons and property during the storing, dispensing, and handling of fuel and other hazardous substances and materials, as required under § 139.321 ............................................................... X X X X 

19. A description of, and procedures for maintaining, the traffic and wind direction indicators, as required under § 139.323 .......................................... X X X X 

20. An emergency plan as required under § 139.325 ..................................... X X X X 

21. Procedures for conducting the self-inspection program, as required 

under § 139.327 ........................................................................................... X X X X 

22. Procedures for controlling pedestrians and ground vehicles in movement areas and safety areas, as required under § 139.329 ........................ X X X 

23. Procedures for obstruction removal, marking, or lighting, as required 

under § 139.331 ........................................................................................... X X X 

24. Procedures for protection of NAVAIDS, as required under § 139.333 ..... X X X 

25. A description of public protection, as required under § 139.335 ............... X X X 

26. Procedures for wildlife hazard management, as required under 

§ 139.337 ...................................................................................................... X X X 

27. Procedures for airport condition reporting, as required under § 139.339 X X X X 

28. Procedures for identifying, marking, and lighting construction and other 

unserviceable areas, as required under § 139.341 ..................................... X X X 

29. Any other item that the Administrator finds is necessary to ensure safety in air transportation .................................................................................. X X X X 

§ 139.205 Amendment of Airport 

Certification Manual. 

(a) Under § 139.3, the Regional 

Airports Division Manager may amend 

any Airport Certification Manual 

approved under this part, either—

(1) Upon application by the certificate 

holder or 

(2) On the Regional Airports Division 

Manager’s own initiative, if the Regional 

Airports Division Manager determines 

that safety in air transportation requires 

the amendment. 

(b) A certificate holder shall submit in 

writing a proposed amendment to its 

Airport Certification Manual to the 

Regional Airports Division Manager at 

least 30 days before the proposed 

effective date of the amendment, unless 

a shorter filing period is allowed by the 

Regional Airports Division Manager. 

(c) At any time within 30 days after 

receiving a notice of refusal to approve 

the application for amendment, the 

certificate holder may petition the 

Associate Administrator for Airports to 

reconsider the refusal to amend. 

(d) In the case of amendments 

initiated by the FAA, the Regional 

Airports Division Manager notifies the 

certificate holder of the proposed 

amendment, in writing, fixing a 

reasonable period (but not less than 7 

days) within which the certificate 

holder may submit written information, 

views, and arguments on the 

amendment. After considering all 

relevant material presented, the 

Regional Airports Division Manager 

notifies the certificate holder within 30 

days of any amendment adopted or 

rescinds the notice. The amendment 

becomes effective not less than 30 days 

after the certificate holder receives 

notice of it, except that, prior to the 

effective date, the certificate holder may 

petition the Associate Administrator for 

Airports to reconsider the amendment, 

in which case its effective date is stayed 

pending a decision by the Associate 

Administrator for Airports. 

(e) Notwithstanding the provisions of 

paragraph (d) of this section, if the 

Regional Airports Division Manager 

finds there is an emergency requiring 

immediate action with respect to safety 

in air transportation, the Regional 

Airports Division Manager may issue an 

amendment, effective without stay on 

the date the certificate holder receives 

notice of it. In such a case, the Regional 

Airports Division Manager incorporates 

the finding of the emergency and a brief 

statement of the reasons for the finding 

in the notice of the amendment. Within 

30 days after the issuance of such an 

emergency amendment, the certificate 

holder may petition the Associate 

Administrator for Airports to reconsider 

either the finding of an emergency, the 

amendment itself, or both. This petition 

does not automatically stay the 

effectiveness of the emergency 

amendment.

Subpart D—Operations

§ 139.301 Records. 

In a manner authorized by the 

Administrator, each certificate holder 

shall—

(a) Furnish upon request by the 

Administrator all records required to be 

maintained under this part. 

(b) Maintain records required under 

this part as follows: 

(1) Personnel training. Twenty-four 

consecutive calendar months for 

personnel training records, as required 

under §§ 139.303 and 139.327. 

(2) Emergency personnel training.

Twenty-four consecutive calendar 

months for aircraft rescue and 

firefighting and emergency medical 

service personnel training records, as 

required under § 139.319. 

(3) Airport fueling agent inspection.

Twelve consecutive calendar months for 

records of inspection of airport fueling 

agents, as required under § 139.321. 

(4) Fueling personnel training. Twelve 

consecutive calendar months for 

training records of fueling personnel, as 

required under § 139.321. 

(5) Self-inspection. Twelve 

consecutive calendar months for selfinspection records, as required under 

§ 139.327. 

(6) Movement areas and safety areas 

training. Twenty-four consecutive 

calendar months for records of training 

given to pedestrians and ground vehicle 

operators with access to movement 

areas and safety areas, as required under 

§ 139.329. 

(7) Accident and incident. Twelve 

consecutive calendar months for each 

accident or incident in movement areas 

and safety areas involving an air carrier 

aircraft and/or ground vehicle, as 

required under § 139.329. 

(8) Airport condition. Twelve 

consecutive calendar months for records 

of airport condition information 

dissemination, as required under 

§ 139.339.

Federal Register / Vol. 69, No. 27 / Tuesday, February 10, 2004 / Rules and Regulations 6429

(c) Make and maintain any additional 

records required by the Administrator, 

this part, and the Airport Certification 

Manual.

§ 139.303 Personnel. 

In a manner authorized by the 

Administrator, each certificate holder 

shall—

(a) Provide sufficient and qualified 

personnel to comply with the 

requirements of its Airport Certification 

Manual and the requirements of this 

part. 

(b) Equip personnel with sufficient 

resources needed to comply with the 

requirements of this part. 

(c) Train all personnel who access 

movement areas and safety areas and 

perform duties in compliance with the 

requirements of the Airport Certification 

Manual and the requirements of this 

part. This training shall be completed 

prior to the initial performance of such 

duties and at least once every 12 

consecutive calendar months. The 

curriculum for initial and recurrent 

training shall include at least the 

following areas: 

(1) Airport familiarization, including 

airport marking, lighting, and signs 

system. 

(2) Procedures for access to, and 

operation in, movement areas and safety 

areas, as specified under § 139.329. 

(3) Airport communications, 

including radio communication 

between the air traffic control tower and 

personnel, use of the common traffic 

advisory frequency if there is no air 

traffic control tower or the tower is not 

in operation, and procedures for 

reporting unsafe airport conditions. 

(4) Duties required under the Airport 

Certification Manual and the 

requirements of this part. 

(5) Any additional subject areas 

required under §§ 139.319, 139.321, 

139.327, 139.329, 139.337, and 139.339, 

as appropriate. 

(d) Make a record of all training 

completed after June 9, 2004 by each 

individual in compliance with this 

section that includes, at a minimum, a 

description and date of training 

received. Such records shall be 

maintained for 24 consecutive calendar 

months after completion of training. 

(e) As appropriate, comply with the 

following training requirements of this 

part: 

(i) § 139.319, Aircraft rescue and 

firefighting: Operational requirements; 

(ii) § 139.321, Handling and storage of 

hazardous substances and materials; 

(iii) § 139.327, Self-inspection 

program; 

(iv) § 139.329, Pedestrians and 

Ground Vehicles; 

(v) § 139.337, Wildlife hazard 

management; and 

(vi) § 139.339, Airport condition 

reporting. 

(f) Use an independent organization, 

or designee, to comply with the 

requirements of its Airport Certification 

Manual and the requirements of this 

part only if—

(1) Such an arrangement is authorized 

by the Administrator; 

(2) A description of responsibilities 

and duties that will be assumed by an 

independent organization or designee is 

specified in the Airport Certification 

Manual; and 

(3) The independent organization or 

designee prepares records required 

under this part in sufficient detail to 

assure the certificate holder and the 

Administrator of adequate compliance 

with the Airport Certification Manual 

and the requirements of this part.

§ 139.305 Paved areas. 

(a) In a manner authorized by the 

Administrator, each certificate holder 

shall maintain, and promptly repair the 

pavement of, each runway, taxiway, 

loading ramp, and parking area on the 

airport that is available for air carrier 

use as follows:

(1) The pavement edges shall not 

exceed 3 inches difference in elevation 

between abutting pavement sections and 

between pavement and abutting areas. 

(2) The pavement shall have no hole 

exceeding 3 inches in depth nor any 

hole the slope of which from any point 

in the hole to the nearest point at the lip 

of the hole is 45 degrees or greater, as 

measured from the pavement surface 

plane, unless, in either case, the entire 

area of the hole can be covered by a 5-

inch diameter circle. 

(3) The pavement shall be free of 

cracks and surface variations that could 

impair directional control of air carrier 

aircraft. Any pavement crack or surface 

deterioration that produces loose 

aggregate or other contaminants shall be 

immediately repaired. 

(4) Except as provided in paragraph 

(b) of this section, mud, dirt, sand, loose 

aggregate, debris, foreign objects, rubber 

deposits, and other contaminants shall 

be removed promptly and as completely 

as practicable. 

(5) Except as provided in paragraph 

(b) of this section, any chemical solvent 

that is used to clean any pavement area 

shall be removed as soon as possible, 

consistent with the instructions of the 

manufacturer of the solvent. 

(6) The pavement shall be sufficiently 

drained and free of depressions to 

prevent ponding that obscures markings 

or impairs safe aircraft operations. 

(b) Paragraphs (a)(4) and (a)(5) of this 

section do not apply to snow and ice 

accumulations and their control, 

including the associated use of 

materials, such as sand and deicing 

solutions. 

(c) FAA Advisory Circulars contain 

methods and procedures for the 

maintenance and configuration of paved 

areas that are acceptable to the 

Administrator.

§ 139.307 Unpaved areas. 

(a) In a manner authorized by the 

Administrator, each certificate holder 

shall maintain and promptly repair the 

surface of each gravel, turf, or other 

unpaved runway, taxiway, or loading 

ramp and parking area on the airport 

that is available for air carrier use as 

follows: 

(1) No slope from the edge of the fullstrength surfaces downward to the 

existing terrain shall be steeper than 2:1. 

(2) The full-strength surfaces shall 

have adequate crown or grade to assure 

sufficient drainage to prevent ponding. 

(3) The full-strength surfaces shall be 

adequately compacted and sufficiently 

stable to prevent rutting by aircraft or 

the loosening or build-up of surface 

material, which could impair 

directional control of aircraft or 

drainage. 

(4) The full-strength surfaces must 

have no holes or depressions that 

exceed 3 inches in depth and are of a 

breadth capable of impairing directional 

control or causing damage to an aircraft. 

(5) Debris and foreign objects shall be 

promptly removed from the surface. 

(b) FAA Advisory Circulars contain 

methods and procedures for the 

maintenance and configuration of 

unpaved areas that are acceptable to the 

Administrator.

§ 139.309 Safety areas. 

(a) In a manner authorized by the 

Administrator, each certificate holder 

shall provide and maintain, for each 

runway and taxiway that is available for 

air carrier use, a safety area of at least 

the dimensions that—

(1) Existed on December 31, 1987, if 

the runway or taxiway had a safety area 

on December 31, 1987, and if no 

reconstruction or significant expansion 

of the runway or taxiway was begun on 

or after January 1, 1988; or 

(2) Are authorized by the 

Administrator at the time the 

construction, reconstruction, or 

expansion began if construction, 

reconstruction, or significant expansion 

of the runway or taxiway began on or 

after January 1, 1988. 

(b) Each certificate holder shall 

maintain its safety areas as follows: 

(1) Each safety area shall be cleared 

and graded and have no potentially

6430 Federal Register / Vol. 69, No. 27 / Tuesday, February 10, 2004 / Rules and Regulations 

hazardous ruts, humps, depressions, or 

other surface variations. 

(2) Each safety area shall be drained 

by grading or storm sewers to prevent 

water accumulation. 

(3) Each safety area shall be capable 

under dry conditions of supporting 

snow removal and aircraft rescue and 

firefighting equipment and of 

supporting the occasional passage of 

aircraft without causing major damage 

to the aircraft. 

(4) No objects may be located in any 

safety area, except for objects that need 

to be located in a safety area because of 

their function. These objects shall be 

constructed, to the extent practical, on 

frangibly mounted structures of the 

lowest practical height, with the 

frangible point no higher than 3 inches 

above grade. 

(c) FAA Advisory Circulars contain 

methods and procedures for the 

configuration and maintenance of safety 

areas acceptable to the Administrator.

§ 139.311 Marking, signs, and lighting. 

(a) Marking. Each certificate holder 

shall provide and maintain marking 

systems for air carrier operations on the 

airport that are authorized by the 

Administrator and consist of at least the 

following: 

(1) Runway markings meeting the 

specifications for takeoff and landing 

minimums for each runway. 

(2) A taxiway centerline. 

(3) Taxiway edge markings, as 

appropriate. 

(4) Holding position markings. 

(5) Instrument landing system (ILS) 

critical area markings. 

(b) Signs. (1) Each certificate holder 

shall provide and maintain sign systems 

for air carrier operations on the airport 

that are authorized by the Administrator 

and consist of at least the following: 

(i) Signs identifying taxiing routes on 

the movement area. 

(ii) Holding position signs. 

(iii) Instrument landing system (ILS) 

critical area signs. 

(2) Unless otherwise authorized by 

the Administrator, the signs required by 

paragraph (b)(1) of this section shall be 

internally illuminated at each Class I, II, 

and IV airport. 

(3) Unless otherwise authorized by 

the Administrator, the signs required by 

paragraphs (b)(1)(ii) and (b)(1)(iii) of this 

section shall be internally illuminated at 

each Class III airport.

(c) Lighting. Each certificate holder 

shall provide and maintain lighting 

systems for air carrier operations when 

the airport is open at night, during 

conditions below visual flight rules 

(VFR) minimums, or in Alaska, during 

periods in which a prominent unlighted 

object cannot be seen from a distance of 

3 statute miles or the sun is more than 

six degrees below the horizon. These 

lighting systems shall be authorized by 

the Administrator and consist of at least 

the following: 

(1) Runway lighting that meets the 

specifications for takeoff and landing 

minimums, as authorized by the 

Administrator, for each runway. 

(2) One of the following taxiway 

lighting systems: 

(i) Centerline lights. 

(ii) Centerline reflectors. 

(iii) Edge lights. 

(iv) Edge reflectors. 

(3) An airport beacon. 

(4) Approach lighting that meets the 

specifications for takeoff and landing 

minimums, as authorized by the 

Administrator, for each runway, unless 

provided and/or maintained by an 

entity other than the certificate holder. 

(5) Obstruction marking and lighting, 

as appropriate, on each object within its 

authority that has been determined by 

the FAA to be an obstruction. 

(d) Maintenance. Each certificate 

holder shall properly maintain each 

marking, sign, or lighting system 

installed and operated on the airport. As 

used in this section, to ‘‘properly 

maintain’’ includes cleaning, replacing, 

or repairing any faded, missing, or 

nonfunctional item; keeping each item 

unobscured and clearly visible; and 

ensuring that each item provides an 

accurate reference to the user. 

(e) Lighting interference. Each 

certificate holder shall ensure that all 

lighting on the airport, including that 

for aprons, vehicle parking areas, 

roadways, fuel storage areas, and 

buildings, is adequately adjusted or 

shielded to prevent interference with air 

traffic control and aircraft operations. 

(f) Standards. FAA Advisory Circulars 

contain methods and procedures for the 

equipment, material, installation, and 

maintenance of marking, sign, and 

lighting systems listed in this section 

that are acceptable to the Administrator. 

(g) Implementation. The sign systems 

required under paragraph (b)(3) of this 

section shall be implemented by each 

holder of a Class III Airport Operating 

Certificate not later than 36 consecutive 

calendar months after June 9, 2004.

§ 139.313 Snow and ice control. 

(a) As determined by the 

Administrator, each certificate holder 

whose airport is located where snow 

and icing conditions occur shall 

prepare, maintain, and carry out a snow 

and ice control plan in a manner 

authorized by the Administrator. 

(b) The snow and ice control plan 

required by this section shall include, at 

a minimum, instructions and 

procedures for—

(1) Prompt removal or control, as 

completely as practical, of snow, ice, 

and slush on each movement area; 

(2) Positioning snow off the 

movement area surfaces so all air carrier 

aircraft propellers, engine pods, rotors, 

and wing tips will clear any snowdrift 

and snowbank as the aircraft’s landing 

gear traverses any portion of the 

movement area; 

(3) Selection and application of 

authorized materials for snow and ice 

control to ensure that they adhere to 

snow and ice sufficiently to minimize 

engine ingestion; 

(4) Timely commencement of snow 

and ice control operations; and 

(5) Prompt notification, in accordance 

with § 139.339, of all air carriers using 

the airport when any portion of the 

movement area normally available to 

them is less than satisfactorily cleared 

for safe operation by their aircraft. 

(c) FAA Advisory Circulars contain 

methods and procedures for snow and 

ice control equipment, materials, and 

removal that are acceptable to the 

Administrator.

§ 139.315 Aircraft rescue and firefighting: 

Index determination. 

(a) An index is required by paragraph 

(c) of this section for each certificate 

holder. The Index is determined by a 

combination of—

(1) The length of air carrier aircraft 

and 

(2) Average daily departures of air 

carrier aircraft. 

(b) For the purpose of Index 

determination, air carrier aircraft 

lengths are grouped as follows: 

(1) Index A includes aircraft less than 

90 feet in length. 

(2) Index B includes aircraft at least 

90 feet but less than 126 feet in length. 

(3) Index C includes aircraft at least 

126 feet but less than 159 feet in length. 

(4) Index D includes aircraft at least 

159 feet but less than 200 feet in length. 

(5) Index E includes aircraft at least 

200 feet in length. 

(c) Except as provided in § 139.319(c), 

if there are five or more average daily 

departures of air carrier aircraft in a 

single Index group serving that airport, 

the longest aircraft with an average of 

five or more daily departures 

determines the Index required for the 

airport. When there are fewer than five 

average daily departures of the longest 

air carrier aircraft serving the airport, 

the Index required for the airport will be 

the next lower Index group than the 

Index group prescribed for the longest 

aircraft. 

(d) The minimum designated index 

shall be Index A.

Federal Register / Vol. 69, No. 27 / Tuesday, February 10, 2004 / Rules and Regulations 6431

(e) A holder of a Class III Airport 

Operating Certificate may comply with 

this section by providing a level of 

safety comparable to Index A that is 

approved by the Administrator. Such 

alternate compliance must be described 

in the ACM and must include: 

(i) Pre-arranged firefighting and 

emergency medical response 

procedures, including agreements with 

responding services. 

(ii) Means for alerting firefighting and 

emergency medical response personnel. 

(iii) Type of rescue and firefighting 

equipment to be provided. 

(iv) Training of responding 

firefighting and emergency medical 

personnel on airport familiarization and 

communications.

§ 139.317 Aircraft rescue and firefighting: 

Equipment and agents. 

Unless otherwise authorized by the 

Administrator, the following rescue and 

firefighting equipment and agents are 

the minimum required for the Indexes 

referred to in § 139.315: 

(a) Index A. One vehicle carrying at 

least—

(1) 500 pounds of sodium-based dry 

chemical, halon 1211, or clean agent; or 

(2) 450 pounds of potassium-based 

dry chemical and water with a 

commensurate quantity of AFFF to total 

100 gallons for simultaneous dry 

chemical and AFFF application. 

(b) Index B. Either of the following: 

(1) One vehicle carrying at least 500 

pounds of sodium-based dry chemical, 

halon 1211, or clean agent and 1,500 

gallons of water and the commensurate 

quantity of AFFF for foam production. 

(2) Two vehicles—

(i) One vehicle carrying the 

extinguishing agents as specified in 

paragraphs (a)(1) or (a)(2) of this section; 

and 

(ii) One vehicle carrying an amount of 

water and the commensurate quantity of 

AFFF so the total quantity of water for 

foam production carried by both 

vehicles is at least 1,500 gallons. 

(c) Index C. Either of the following: 

(1) Three vehicles—

(i) One vehicle carrying the 

extinguishing agents as specified in 

paragraph (a)(1) or (a)(2) of this section; 

and 

(ii) Two vehicles carrying an amount 

of water and the commensurate quantity 

of AFFF so the total quantity of water 

for foam production carried by all three 

vehicles is at least 3,000 gallons. 

(2) Two vehicles—

(i) One vehicle carrying the 

extinguishing agents as specified in 

paragraph (b)(1) of this section; and 

(ii) One vehicle carrying water and 

the commensurate quantity of AFFF so 

the total quantity of water for foam 

production carried by both vehicles is at 

least 3,000 gallons. 

(d) Index D. Three vehicles—

(1) One vehicle carrying the 

extinguishing agents as specified in 

paragraphs (a)(1) or (a)(2) of this section; 

and 

(2) Two vehicles carrying an amount 

of water and the commensurate quantity 

of AFFF so the total quantity of water 

for foam production carried by all three 

vehicles is at least 4,000 gallons. 

(e) Index E. Three vehicles—

(1) One vehicle carrying the 

extinguishing agents as specified in 

paragraphs (a)(1) or (a)(2) of this section; 

and 

(2) Two vehicles carrying an amount 

of water and the commensurate quantity 

of AFFF so the total quantity of water 

for foam production carried by all three 

vehicles is at least 6,000 gallons. 

(f) Foam discharge capacity. Each 

aircraft rescue and firefighting vehicle 

used to comply with Index B, C, D, or 

E requirements with a capacity of at 

least 500 gallons of water for foam 

production shall be equipped with a 

turret. Vehicle turret discharge capacity 

shall be as follows: 

(1) Each vehicle with a minimumrated vehicle water tank capacity of at 

least 500 gallons, but less than 2,000 

gallons, shall have a turret discharge 

rate of at least 500 gallons per minute, 

but not more than 1,000 gallons per 

minute. 

(2) Each vehicle with a minimumrated vehicle water tank capacity of at 

least 2,000 gallons shall have a turret 

discharge rate of at least 600 gallons per 

minute, but not more than 1,200 gallons 

per minute. 

(g) Agent discharge capacity. Each 

aircraft rescue and firefighting vehicle 

that is required to carry dry chemical, 

halon 1211, or clean agent for 

compliance with the Index requirements 

of this section must meet one of the 

following minimum discharge rates for 

the equipment installed: 

(1) Dry chemical, halon 1211, or clean 

agent through a hand line—5 pounds 

per second. 

(2) Dry chemical, halon 1211, or clean 

agent through a turret—16 pounds per 

second. 

(h) Extinguishing agent substitutions.

Other extinguishing agent substitutions 

authorized by the Administrator may be 

made in amounts that provide 

equivalent firefighting capability. 

(i) AFFF quantity requirements. In 

addition to the quantity of water 

required, each vehicle required to carry 

AFFF shall carry AFFF in an 

appropriate amount to mix with twice 

the water required to be carried by the 

vehicle. 

(j) Methods and procedures. FAA 

Advisory Circulars contain methods and 

procedures for ARFF equipment and 

extinguishing agents that are acceptable 

to the Administrator. 

(k) Implementation. Each holder of a 

Class II, III, or IV Airport Operating 

Certificate shall implement the 

requirements of this section no later 

than 36 consecutive calendar months 

after .

§ 139.319 Aircraft rescue and firefighting: 

Operational requirements. 

(a) Rescue and firefighting capability.

Except as provided in paragraph (c) of 

this section, each certificate holder shall 

provide on the airport, during air carrier 

operations at the airport, at least the 

rescue and firefighting capability 

specified for the Index required by 

§ 139.317 in a manner authorized by the 

Administrator. 

(b) Increase in Index. Except as 

provided in paragraph (c) of this 

section, if an increase in the average 

daily departures or the length of air 

carrier aircraft results in an increase in 

the Index required by paragraph (a) of 

this section, the certificate holder shall 

comply with the increased 

requirements. 

(c) Reduction in rescue and 

firefighting. During air carrier operations 

with only aircraft shorter than the Index 

aircraft group required by paragraph (a) 

of this section, the certificate holder 

may reduce the rescue and firefighting 

to a lower level corresponding to the 

Index group of the longest air carrier 

aircraft being operated. 

(d) Procedures for reduction in 

capability. Any reduction in the rescue 

and firefighting capability from the 

Index required by paragraph (a) of this 

section, in accordance with paragraph 

(c) of this section, shall be subject to the 

following conditions: 

(1) Procedures for, and the persons 

having the authority to implement, the 

reductions must be included in the 

Airport Certification Manual. 

(2) A system and procedures for recall 

of the full aircraft rescue and firefighting 

capability must be included in the 

Airport Certification Manual. 

(3) The reductions may not be 

implemented unless notification to air 

carriers is provided in the Airport/

Facility Directory or Notices to Airmen 

(NOTAM), as appropriate, and by direct 

notification of local air carriers. 

(e) Vehicle communications. Each 

vehicle required under § 139.317 shall 

be equipped with two-way voice radio 

communications that provide for 

contact with at least—

6432 Federal Register / Vol. 69, No. 27 / Tuesday, February 10, 2004 / Rules and Regulations 

(1) All other required emergency 

vehicles; 

(2) The air traffic control tower; 

(3) The common traffic advisory 

frequency when an air traffic control 

tower is not in operation or there is no 

air traffic control tower, and 

(4) Fire stations, as specified in the 

airport emergency plan. 

(f) Vehicle marking and lighting. Each 

vehicle required under § 139.317 shall—

(1) Have a flashing or rotating beacon 

and 

(2) Be painted or marked in colors to 

enhance contrast with the background 

environment and optimize daytime and 

nighttime visibility and identification. 

(g) Vehicle readiness. Each vehicle 

required under § 139.317 shall be 

maintained as follows: 

(1) The vehicle and its systems shall 

be maintained so as to be operationally 

capable of performing the functions 

required by this subpart during all air 

carrier operations.

(2) If the airport is located in a 

geographical area subject to prolonged 

temperatures below 33 degrees 

Fahrenheit, the vehicles shall be 

provided with cover or other means to 

ensure equipment operation and 

discharge under freezing conditions. 

(3) Any required vehicle that becomes 

inoperative to the extent that it cannot 

perform as required by paragraph (h)(1) 

of this section shall be replaced 

immediately with equipment having at 

least equal capabilities. If replacement 

equipment is not available immediately, 

the certificate holder shall so notify the 

Regional Airports Division Manager and 

each air carrier using the airport in 

accordance with § 139.339. If the 

required Index level of capability is not 

restored within 48 hours, the airport 

operator, unless otherwise authorized 

by the Administrator, shall limit air 

carrier operations on the airport to those 

compatible with the Index 

corresponding to the remaining 

operative rescue and firefighting 

equipment. 

(h) Response requirements. (1) With 

the aircraft rescue and firefighting 

equipment required under this part and 

the number of trained personnel that 

will assure an effective operation, each 

certificate holder shall—

(i) Respond to each emergency during 

periods of air carrier operations; and 

(ii) When requested by the 

Administrator, demonstrate compliance 

with the response requirements 

specified in this section. 

(2) The response required by 

paragraph (h)(1)(ii) of this section shall 

achieve the following performance 

criteria: 

(i) Within 3 minutes from the time of 

the alarm, at least one required aircraft 

rescue and firefighting vehicle shall 

reach the midpoint of the farthest 

runway serving air carrier aircraft from 

its assigned post or reach any other 

specified point of comparable distance 

on the movement area that is available 

to air carriers, and begin application of 

extinguishing agent. 

(ii) Within 4 minutes from the time of 

alarm, all other required vehicles shall 

reach the point specified in paragraph 

(h)(2)(i) of this section from their 

assigned posts and begin application of 

an extinguishing agent. 

(i) Personnel. Each certificate holder 

shall ensure the following: 

(1) All rescue and firefighting 

personnel are equipped in a manner 

authorized by the Administrator with 

protective clothing and equipment 

needed to perform their duties. 

(2) All rescue and firefighting 

personnel are properly trained to 

perform their duties in a manner 

authorized by the Administrator. Such 

personnel shall be trained prior to 

initial performance of rescue and 

firefighting duties and receive recurrent 

instruction every 12 consecutive 

calendar months. The curriculum for 

initial and recurrent training shall 

include at least the following areas: 

(i) Airport familiarization, including 

airport signs, marking, and lighting. 

(ii) Aircraft familiarization. 

(iii) Rescue and firefighting personnel 

safety. 

(iv) Emergency communications 

systems on the airport, including fire 

alarms. 

(v) Use of the fire hoses, nozzles, 

turrets, and other appliances required 

for compliance with this part. 

(vi) Application of the types of 

extinguishing agents required for 

compliance with this part. 

(vii) Emergency aircraft evacuation 

assistance. 

(viii) Firefighting operations. 

(ix) Adapting and using structural 

rescue and firefighting equipment for 

aircraft rescue and firefighting. 

(x) Aircraft cargo hazards, including 

hazardous materials/dangerous goods 

incidents. 

(xi) Familiarization with firefighters’

duties under the airport emergency 

plan. 

(3) All rescue and firefighting 

personnel shall participate in at least 

one live-fire drill prior to initial 

performance of rescue and firefighting 

duties and every 12 consecutive 

calendar months thereafter. 

(4) At least one individual, who has 

been trained and is current in basic 

emergency medical services, is available 

during air carrier operations. This 

individual shall be trained prior to 

initial performance of emergency 

medical services. Training shall be at a 

minimum 40 hours in length and cover 

the following topics: 

(i) Bleeding. 

(ii) Cardiopulmonary resuscitation. 

(iii) Shock. 

(iv) Primary patient survey. 

(v) Injuries to the skull, spine, chest, 

and extremities. 

(vi) Internal injuries. 

(vii) Moving patients. 

(viii) Burns. 

(ix) Triage. 

(5) A record is maintained of all 

training given to each individual under 

this section for 24 consecutive calendar 

months after completion of training. 

Such records shall include, at a 

minimum, a description and date of 

training received. 

(6) Sufficient rescue and firefighting 

personnel are available during all air 

carrier operations to operate the 

vehicles, meet the response times, and 

meet the minimum agent discharge rates 

required by this part. 

(7) Procedures and equipment are 

established and maintained for alerting 

rescue and firefighting personnel by 

siren, alarm, or other means authorized 

by the Administrator to any existing or 

impending emergency requiring their 

assistance. 

(j) Hazardous materials guidance.

Each aircraft rescue and firefighting 

vehicle responding to an emergency on 

the airport shall be equipped with, or 

have available through a direct 

communications link, the ‘‘North 

American Emergency Response 

Guidebook’’ published by the U.S. 

Department of Transportation or similar 

response guidance to hazardous 

materials/dangerous goods incidents. 

Information on obtaining the ‘‘North 

American Emergency Response 

Guidebook’’ is available from the 

Regional Airports Division Manager. 

(k) Emergency access roads. Each 

certificate holder shall ensure that roads 

designated for use as emergency access 

roads for aircraft rescue and firefighting 

vehicles are maintained in a condition 

that will support those vehicles during 

all-weather conditions. 

(l) Methods and procedures. FAA 

Advisory Circulars contain methods and 

procedures for aircraft rescue and 

firefighting and emergency medical 

equipment and training that are 

acceptable to the Administrator. 

(m) Implementation. Each holder of a 

Class II, III, or IV Airport Operating 

Certificate shall implement the 

requirements of this section no later 

than 36 consecutive calendar months 

after June 9, 2004.

Federal Register / Vol. 69, No. 27 / Tuesday, February 10, 2004 / Rules and Regulations 6433

§ 139.321 Handling and storing of 

hazardous substances and materials. 

(a) Each certificate holder who acts as 

a cargo handling agent shall establish 

and maintain procedures for the 

protection of persons and property on 

the airport during the handling and 

storing of any material regulated by the 

Hazardous Materials Regulations (49 

CFR 171 through 180) that is, or is 

intended to be, transported by air. These 

procedures shall provide for at least the 

following: 

(1) Designated personnel to receive 

and handle hazardous substances and 

materials. 

(2) Assurance from the shipper that 

the cargo can be handled safely, 

including any special handling 

procedures required for safety. 

(3) Special areas for storage of 

hazardous materials while on the 

airport. 

(b) Each certificate holder shall 

establish and maintain standards 

authorized by the Administrator for 

protecting against fire and explosions in 

storing, dispensing, and otherwise 

handling fuel (other than articles and 

materials that are, or are intended to be, 

aircraft cargo) on the airport. These 

standards shall cover facilities, 

procedures, and personnel training and 

shall address at least the following: 

(1) Bonding. 

(2) Public protection. 

(3) Control of access to storage areas. 

(4) Fire safety in fuel farm and storage 

areas.

(5) Fire safety in mobile fuelers, 

fueling pits, and fueling cabinets. 

(6) Training of fueling personnel in 

fire safety in accordance with paragraph 

(e) of this section. Such training at Class 

III airports must be completed within 12 

consecutive calendar months after June 

9, 2004. 

(7) The fire code of the public body 

having jurisdiction over the airport. 

(c) Each certificate holder shall, as a 

fueling agent, comply with, and require 

all other fueling agents operating on the 

airport to comply with, the standards 

established under paragraph (b) of this 

section and shall perform reasonable 

surveillance of all fueling activities on 

the airport with respect to those 

standards. 

(d) Each certificate holder shall 

inspect the physical facilities of each 

airport tenant fueling agent at least once 

every 3 consecutive months for 

compliance with paragraph (b) of this 

section and maintain a record of that 

inspection for at least 12 consecutive 

calendar months. 

(e) The training required in paragraph 

(b)(6) of this section shall include at 

least the following: 

(1) At least one supervisor with each 

fueling agent shall have completed an 

aviation fuel training course in fire 

safety that is authorized by the 

Administrator. Such an individual shall 

be trained prior to initial performance of 

duties, or enrolled in an authorized 

aviation fuel training course that will be 

completed within 90 days of initiating 

duties, and receive recurrent instruction 

at least every 24 consecutive calendar 

months. 

(2) All other employees who fuel 

aircraft, accept fuel shipments, or 

otherwise handle fuel shall receive at 

least initial on-the-job training and 

recurrent instruction every 24 

consecutive calendar months in fire 

safety from the supervisor trained in 

accordance with paragraph (e)(1) of this 

section. 

(f) Each certificate holder shall obtain 

a written confirmation once every 12 

consecutive calendar months from each 

airport tenant fueling agent that the 

training required by paragraph (e) of this 

section has been accomplished. This 

written confirmation shall be 

maintained for 12 consecutive calendar 

months. 

(g) Unless otherwise authorized by the 

Administrator, each certificate holder 

shall require each tenant fueling agent 

to take immediate corrective action 

whenever the certificate holder becomes 

aware of noncompliance with a 

standard required by paragraph (b) of 

this section. The certificate holder shall 

notify the appropriate FAA Regional 

Airports Division Manager immediately 

when noncompliance is discovered and 

corrective action cannot be 

accomplished within a reasonable 

period of time. 

(h) FAA Advisory Circulars contain 

methods and procedures for the 

handling and storage of hazardous 

substances and materials that are 

acceptable to the Administrator.

§ 139.323 Traffic and wind direction 

indicators. 

In a manner authorized by the 

Administrator, each certificate holder 

shall provide and maintain the 

following on its airport: 

(a) A wind cone that visually provides 

surface wind direction information to 

pilots. For each runway available for air 

carrier use, a supplemental wind cone 

must be installed at the end of the 

runway or at least at one point visible 

to the pilot while on final approach and 

prior to takeoff. If the airport is open for 

air carrier operations at night, the wind 

direction indicators, including the 

required supplemental indicators, must 

be lighted. 

(b) For airports serving any air carrier 

operation when there is no control 

tower operating, a segmented circle, a 

landing strip indicator and a traffic 

pattern indicator must be installed 

around a wind cone for each runway 

with a right-hand traffic pattern. 

(c) FAA Advisory Circulars contain 

methods and procedures for the 

installation, lighting, and maintenance 

of traffic and wind indicators that are 

acceptable to the Administrator.

§ 139.325 Airport emergency plan. 

(a) In a manner authorized by the 

Administrator, each certificate holder 

shall develop and maintain an airport 

emergency plan designed to minimize 

the possibility and extent of personal 

injury and property damage on the 

airport in an emergency. The plan 

shall—

(1) Include procedures for prompt 

response to all emergencies listed in 

paragraph (b) of this section, including 

a communications network; 

(2) Contain sufficient detail to provide 

adequate guidance to each person who 

must implement these procedures; and 

(3) To the extent practicable, provide 

for an emergency response for the 

largest air carrier aircraft in the Index 

group required under § 139.315. 

(b) The plan required by this section 

must contain instructions for response 

to—

(1) Aircraft incidents and accidents; 

(2) Bomb incidents, including 

designation of parking areas for the 

aircraft involved; 

(3) Structural fires; 

(4) Fires at fuel farms or fuel storage 

areas; 

(5) Natural disaster; 

(6) Hazardous materials/dangerous 

goods incidents; 

(7) Sabotage, hijack incidents, and 

other unlawful interference with 

operations; 

(8) Failure of power for movement 

area lighting; and 

(9) Water rescue situations, as 

appropriate. 

(c) The plan required by this section 

must address or include—

(1) To the extent practicable, 

provisions for medical services, 

including transportation and medical 

assistance for the maximum number of 

persons that can be carried on the 

largest air carrier aircraft that the airport 

reasonably can be expected to serve; 

(2) The name, location, telephone 

number, and emergency capability of 

each hospital and other medical facility 

and the business address and telephone 

number of medical personnel on the 

airport or in the communities it serves 

who have agreed to provide medical 

assistance or transportation;

6434 Federal Register / Vol. 69, No. 27 / Tuesday, February 10, 2004 / Rules and Regulations 

(3) The name, location, and telephone 

number of each rescue squad, 

ambulance service, military installation, 

and government agency on the airport or 

in the communities it serves that agrees 

to provide medical assistance or 

transportation;

(4) An inventory of surface vehicles 

and aircraft that the facilities, agencies, 

and personnel included in the plan 

under paragraphs (c)(2) and (3) of this 

section will provide to transport injured 

and deceased persons to locations on 

the airport and in the communities it 

serves; 

(5) A list of each hangar or other 

building on the airport or in the 

communities it serves that will be used 

to accommodate uninjured, injured, and 

deceased persons; 

(6) Plans for crowd control, including 

the name and location of each safety or 

security agency that agrees to provide 

assistance for the control of crowds in 

the event of an emergency on the 

airport; and 

(7) Procedures for removing disabled 

aircraft, including, to the extent 

practical, the name, location, and 

telephone numbers of agencies with 

aircraft removal responsibilities or 

capabilities. 

(d) The plan required by this section 

must provide for—

(1) The marshalling, transportation, 

and care of ambulatory injured and 

uninjured accident survivors; 

(2) The removal of disabled aircraft; 

(3) Emergency alarm or notification 

systems; and 

(4) Coordination of airport and control 

tower functions relating to emergency 

actions, as appropriate. 

(e) The plan required by this section 

shall contain procedures for notifying 

the facilities, agencies, and personnel 

who have responsibilities under the 

plan of the location of an aircraft 

accident, the number of persons 

involved in that accident, or any other 

information necessary to carry out their 

responsibilities, as soon as that 

information becomes available. 

(f) The plan required by this section 

shall contain provisions, to the extent 

practicable, for the rescue of aircraft 

accident victims from significant bodies 

of water or marsh lands adjacent to the 

airport that are crossed by the approach 

and departure flight paths of air carriers. 

A body of water or marshland is 

significant if the area exceeds onequarter square mile and cannot be 

traversed by conventional land rescue 

vehicles. To the extent practicable, the 

plan shall provide for rescue vehicles 

with a combined capacity for handling 

the maximum number of persons that 

can be carried on board the largest air 

carrier aircraft in the Index group 

required under § 139.315. 

(g) Each certificate holder shall—

(1) Coordinate the plan with law 

enforcement agencies, rescue and 

firefighting agencies, medical personnel 

and organizations, the principal tenants 

at the airport, and all other persons who 

have responsibilities under the plan; 

(2) To the extent practicable, provide 

for participation by all facilities, 

agencies, and personnel specified in 

paragraph (g)(1) of this section in the 

development of the plan; 

(3) Ensure that all airport personnel 

having duties and responsibilities under 

the plan are familiar with their 

assignments and are properly trained; 

and 

(4) At least once every 12 consecutive 

calendar months, review the plan with 

all of the parties with whom the plan is 

coordinated, as specified in paragraph 

(g)(1) of this section, to ensure that all 

parties know their responsibilities and 

that all of the information in the plan is 

current. 

(h) Each holder of a Class I Airport 

Operating Certificate shall hold a fullscale airport emergency plan exercise at 

least once every 36 consecutive calendar 

months. 

(i) Each airport subject to applicable 

FAA and Transportation Security 

Administration security regulations 

shall ensure that instructions for 

response to paragraphs (b)(2) and (b)(7) 

of this section in the airport emergency 

plan are consistent with its approved 

airport security program. 

(j) FAA Advisory Circulars contain 

methods and procedures for the 

development of an airport emergency 

plan that are acceptable to the 

Administrator. 

(k) The emergency plan required by 

this section shall be submitted by each 

holder of a Class II, III, or IV Airport 

Operating Certificate no later than 24 

consecutive calendar months after June 

9, 2004.

§ 139.327 Self-inspection program. 

(a) In a manner authorized by the 

Administrator, each certificate holder 

shall inspect the airport to assure 

compliance with this subpart according 

to the following schedule: 

(1) Daily, except as otherwise required 

by the Airport Certification Manual; 

(2) When required by any unusual 

condition, such as construction 

activities or meteorological conditions, 

that may affect safe air carrier 

operations; and 

(3) Immediately after an accident or 

incident. 

(b) Each certificate holder shall 

provide the following: 

(1) Equipment for use in conducting 

safety inspections of the airport; 

(2) Procedures, facilities, and 

equipment for reliable and rapid 

dissemination of information between 

the certificate holder’s personnel and air 

carriers; and 

(3) Procedures to ensure qualified 

personnel perform the inspections. Such 

procedures shall ensure personnel are 

trained, as specified under § 139.303, 

and receive initial and recurrent 

instruction every 12 consecutive 

calendar months in at least the 

following areas: 

(i) Airport familiarization, including 

airport signs, marking and lighting. 

(ii) Airport emergency plan. 

(iii) Notice to Airmen (NOTAM) 

notification procedures. 

(iv) Procedures for pedestrians and 

ground vehicles in movement areas and 

safety areas. 

(v) Discrepancy reporting procedures; 

and 

(4) A reporting system to ensure 

prompt correction of unsafe airport 

conditions noted during the inspection, 

including wildlife strikes. 

(c) Each certificate holder shall—

(1) Prepare, and maintain for at least 

12 consecutive calendar months, a 

record of each inspection prescribed by 

this section, showing the conditions 

found and all corrective actions taken. 

(2) Prepare records of all training 

given after June 9, 2004 to each 

individual in compliance with this 

section that includes, at a minimum, a 

description and date of training 

received. Such records shall be 

maintained for 24 consecutive calendar 

months after completion of training.

(d) FAA Advisory Circulars contain 

methods and procedures for the conduct 

of airport self-inspections that are 

acceptable to the Administrator.

§ 139.329 Pedestrians and ground 

vehicles. 

In a manner authorized by the 

Administrator, each certificate holder 

shall—

(a) Limit access to movement areas 

and safety areas only to those 

pedestrians and ground vehicles 

necessary for airport operations; 

(b) Establish and implement 

procedures for the safe and orderly 

access to, and operation in, movement 

areas and safety areas by pedestrians 

and ground vehicles, including 

provisions identifying the consequences 

of noncompliance with the procedures 

by an employee, tenant, or contractor; 

(c) When an air traffic control tower 

is in operation, ensure that each 

pedestrian and ground vehicle in 

movement areas or safety areas is 

controlled by one of the following:

Federal Register / Vol. 69, No. 27 / Tuesday, February 10, 2004 / Rules and Regulations 6435

(1) Two-way radio communications 

between each pedestrian or vehicle and 

the tower; 

(2) An escort with two-way radio 

communications with the tower 

accompanying any pedestrian or vehicle 

without a radio; or 

(3) Measures authorized by the 

Administrator for controlling 

pedestrians and vehicles, such as signs, 

signals, or guards, when it is not 

operationally practical to have two-way 

radio communications between the 

tower and the pedestrian, vehicle, or 

escort; 

(d) When an air traffic control tower 

is not in operation, or there is no air 

traffic control tower, provide adequate 

procedures to control pedestrians and 

ground vehicles in movement areas or 

safety areas through two-way radio 

communications or prearranged signs or 

signals; 

(e) Ensure that each employee, tenant, 

or contractor is trained on procedures 

required under paragraph (b) of this 

section, including consequences of 

noncompliance, prior to moving on foot, 

or operating a ground vehicle, in 

movement areas or safety areas; and 

(f) Maintain the following records: 

(1) A description and date of training 

completed after June 9, 2004 by each 

individual in compliance with this 

section. A record for each individual 

shall be maintained for 24 consecutive 

months after the termination of an 

individual’s access to movement areas 

and safety areas. 

(2) A description and date of any 

accidents or incidents in the movement 

areas and safety areas involving air 

carrier aircraft, a ground vehicle or a 

pedestrian. Records of each accident or 

incident occurring after the June 9, 2004 

shall be maintained for 12 consecutive 

calendar months from the date of the 

accident or incident.

§ 139.331 Obstructions. 

In a manner authorized by the 

Administrator, each certificate holder 

shall ensure that each object in each 

area within its authority that has been 

determined by the FAA to be an 

obstruction is removed, marked, or 

lighted, unless determined to be 

unnecessary by an FAA aeronautical 

study. FAA Advisory Circulars contain 

methods and procedures for the lighting 

of obstructions that are acceptable to the 

Administrator.

§ 139.333 Protection of NAVAIDS. 

In a manner authorized by the 

Administrator, each certificate holder 

shall—

(a) Prevent the construction of 

facilities on its airport that, as 

determined by the Administrator, would 

derogate the operation of an electronic 

or visual NAVAID and air traffic control 

facilities on the airport; 

(b) Protect—or if the owner is other 

than the certificate holder, assist in 

protecting—all NAVAIDS on its airport 

against vandalism and theft; and 

(c) Prevent, insofar as it is within the 

airport’s authority, interruption of 

visual and electronic signals of 

NAVAIDS.

§ 139.335 Public protection. 

(a) In a manner authorized by the 

Administrator, each certificate holder 

shall provide—

(1) Safeguards to prevent inadvertent 

entry to the movement area by 

unauthorized persons or vehicles; and 

(2) Reasonable protection of persons 

and property from aircraft blast. 

(b) Fencing that meets the 

requirements of applicable FAA and 

Transportation Security Administration 

security regulations in areas subject to 

these regulations is acceptable for 

meeting the requirements of paragraph 

(a)(l) of this section.

§ 139.337 Wildlife hazard management. 

(a) In accordance with its Airport 

Certification Manual and the 

requirements of this section, each 

certificate holder shall take immediate 

action to alleviate wildlife hazards 

whenever they are detected. 

(b) In a manner authorized by the 

Administrator, each certificate holder 

shall ensure that a wildlife hazard 

assessment is conducted when any of 

the following events occurs on or near 

the airport: 

(1) An air carrier aircraft experiences 

multiple wildlife strikes; 

(2) An air carrier aircraft experiences 

substantial damage from striking 

wildlife. As used in this paragraph, 

substantial damage means damage or 

structural failure incurred by an aircraft 

that adversely affects the structural 

strength, performance, or flight 

characteristics of the aircraft and that 

would normally require major repair or 

replacement of the affected component; 

(3) An air carrier aircraft experiences 

an engine ingestion of wildlife; or 

(4) Wildlife of a size, or in numbers, 

capable of causing an event described in 

paragraphs (b)(1), (b)(2), or (b)(3) of this 

section is observed to have access to any 

airport flight pattern or aircraft 

movement area. 

(c) The wildlife hazard assessment 

required in paragraph (b) of this section 

shall be conducted by a wildlife damage 

management biologist who has 

professional training and/or experience 

in wildlife hazard management at 

airports or an individual working under 

direct supervision of such an 

individual. The wildlife hazard 

assessment shall contain at least the 

following: 

(1) An analysis of the events or 

circumstances that prompted the 

assessment. 

(2) Identification of the wildlife 

species observed and their numbers, 

locations, local movements, and daily 

and seasonal occurrences. 

(3) Identification and location of 

features on and near the airport that 

attract wildlife. 

(4) A description of wildlife hazards 

to air carrier operations. 

(5) Recommended actions for 

reducing identified wildlife hazards to 

air carrier operations. 

(d) The wildlife hazard assessment 

required under paragraph (b) of this 

section shall be submitted to the 

Administrator for approval and 

determination of the need for a wildlife 

hazard management plan. In reaching 

this determination, the Administrator 

will consider—

(1) The wildlife hazard assessment; 

(2) Actions recommended in the 

wildlife hazard assessment to reduce 

wildlife hazards; 

(3) The aeronautical activity at the 

airport, including the frequency and 

size of air carrier aircraft; 

(4) The views of the certificate holder; 

(5) The views of the airport users; and 

(6) Any other known factors relating 

to the wildlife hazard of which the 

Administrator is aware. 

(e) When the Administrator 

determines that a wildlife hazard 

management plan is needed, the 

certificate holder shall formulate and 

implement a plan using the wildlife 

hazard assessment as a basis. The plan 

shall—

(1) Provide measures to alleviate or 

eliminate wildlife hazards to air carrier 

operations; 

(2) Be submitted to, and approved by, 

the Administrator prior to 

implementation; and

(3) As authorized by the 

Administrator, become a part of the 

Airport Certification Manual. 

(f) The plan shall include at least the 

following: 

(1) A list of the individuals having 

authority and responsibility for 

implementing each aspect of the plan. 

(2) A list prioritizing the following 

actions identified in the wildlife hazard 

assessment and target dates for their 

initiation and completion: 

(i) Wildlife population management; 

(ii) Habitat modification; and 

(iii) Land use changes.

6436 Federal Register / Vol. 69, No. 27 / Tuesday, February 10, 2004 / Rules and Regulations 

(3) Requirements for and, where 

applicable, copies of local, State, and 

Federal wildlife control permits. 

(4) Identification of resources that the 

certificate holder will provide to 

implement the plan. 

(5) Procedures to be followed during 

air carrier operations that at a minimum 

includes—

(i) Designation of personnel 

responsible for implementing the 

procedures; 

(ii) Provisions to conduct physical 

inspections of the aircraft movement 

areas and other areas critical to 

successfully manage known wildlife 

hazards before air carrier operations 

begin; 

(iii) Wildlife hazard control measures; 

and 

(iv) Ways to communicate effectively 

between personnel conducting wildlife 

control or observing wildlife hazards 

and the air traffic control tower. 

(6) Procedures to review and evaluate 

the wildlife hazard management plan 

every 12 consecutive months or 

following an event described in 

paragraphs (b)(1), (b)(2), and (b)(3) of 

this section, including: 

(i) The plan’s effectiveness in dealing 

with known wildlife hazards on and in 

the airport’s vicinity and 

(ii) Aspects of the wildlife hazards 

described in the wildlife hazard 

assessment that should be reevaluated. 

(7) A training program conducted by 

a qualified wildlife damage management 

biologist to provide airport personnel 

with the knowledge and skills needed to 

successfully carry out the wildlife 

hazard management plan required by 

paragraph (d) of this section. 

(g) FAA Advisory Circulars contain 

methods and procedures for wildlife 

hazard management at airports that are 

acceptable to the Administrator.

§ 139.339 Airport condition reporting. 

In a manner authorized by the 

Administrator, each certificate holder 

shall—

(a) Provide for the collection and 

dissemination of airport condition 

information to air carriers. 

(b) In complying with paragraph (a) of 

this section, use the NOTAM system, as 

appropriate, and other systems and 

procedures authorized by the 

Administrator. 

(c) In complying with paragraph (a) of 

this section, provide information on the 

following airport conditions that may 

affect the safe operations of air carriers: 

(1) Construction or maintenance 

activity on movement areas, safety 

areas, or loading ramps and parking 

areas. 

(2) Surface irregularities on movement 

areas, safety areas, or loading ramps and 

parking areas. 

(3) Snow, ice, slush, or water on the 

movement area or loading ramps and 

parking areas. 

(4) Snow piled or drifted on or near 

movement areas contrary to § 139.313. 

(5) Objects on the movement area or 

safety areas contrary to § 139.309. 

(6) Malfunction of any lighting 

system, holding position signs, or ILS 

critical area signs required by § 139.311. 

(7) Unresolved wildlife hazards as 

identified in accordance with § 139.337. 

(8) Nonavailability of any rescue and 

firefighting capability required in 

§§ 139.317 or 139.319. 

(9) Any other condition as specified 

in the Airport Certification Manual or 

that may otherwise adversely affect the 

safe operations of air carriers. 

(d) Each certificate holder shall 

prepare and keep, for at least 12 

consecutive calendar months, a record 

of each dissemination of airport 

condition information to air carriers 

prescribed by this section. 

(e) FAA Advisory Circulars contain 

methods and procedures for using the 

NOTAM system and the dissemination 

of airport information that are 

acceptable to the Administrator.

§ 139.341 Identifying, marking, and 

lighting construction and other 

unserviceable areas. 

(a) In a manner authorized by the 

Administrator, each certificate holder 

shall—

(1) Mark and, if appropriate, light in 

a manner authorized by the 

Administrator—

(i) Each construction area and 

unserviceable area that is on or adjacent 

to any movement area or any other area 

of the airport on which air carrier 

aircraft may be operated; 

(ii) Each item of construction 

equipment and each construction 

roadway, which may affect the safe 

movement of aircraft on the airport; and 

(iii) Any area adjacent to a NAVAID 

that, if traversed, could cause derogation 

of the signal or the failure of the 

NAVAID; and 

(2) Provide procedures, such as a 

review of all appropriate utility plans 

prior to construction, for avoiding 

damage to existing utilities, cables, 

wires, conduits, pipelines, or other 

underground facilities. 

(b) FAA Advisory Circulars contain 

methods and procedures for identifying 

and marking construction areas that are 

acceptable to the Administrator.

§ 139.343 Noncomplying conditions. 

Unless otherwise authorized by the 

Administrator, whenever the 

requirements of subpart D of this part 

cannot be met to the extent that 

uncorrected unsafe conditions exist on 

the airport, the certificate holder shall 

limit air carrier operations to those 

portions of the airport not rendered 

unsafe by those conditions.

Issued in Washington, DC on January 28, 

2004. 

Marion C. Blakey, 

Administrator.

[FR Doc. 04–2255 Filed 2–9–04; 8:45 am] 

BILLING CODE 4910–13–P