The FAA recently issued Order 5200.11 (Order), effective August 30, 2010, which will be of interest to airport operators and sponsors for several reasons. Beginning June 1, 2011, most significant new actions taken at small-, medium-, or large-hub airports must undergo a safety risk management (SRM) safety assessment process, as outlined in the Order. Such reviews for all other airports within the National Plan of Integrated Airport Systems (NPIAS) will be phased in by June 1, 2014. The Order also provides that airport sponsors will be required to certify that they have reviewed and understand the results of the SRM assessment and that they will implement the mitigation measures identified in the SRM process in a timely manner. Further, the Order provides a preview of the upcoming rulemaking implementing Safety Management Systems (SMS) at all Part 139 certificated airports. Lastly, the issuance of the Order in its final form continues an unsettling recent trend whereby the FAA has issued final guidance without the opportunity for public review and comment.
Actions Requiring an SRM Assessment
The Order requires that, beginning June 1, 2011, the FAA’s Office of Airports (ARP)-produced airport standards and project-specific approvals that could impact aviation safety must undergo an SRM safety assessment. Specifically, the following actions require a safety assessment:
Although it appears that the FAA has already begun to require safety assessments for some large-scale airport development projects, the Order mandates that the foregoing matters, as well as any other project that could affect aviation safety and that requires ARP approval, will be required to undergo a defined safety review. Initially, this review will determine whether a full SRM process must be undertaken, and Appendix B to the Order provides a list of matters that typically will not require further safety assessment. These matters generally are FAA approvals that will not affect the airfield or aircraft operations in any way, such as approval of grants for reimbursement of completed projects, sound insulation projects, or approval of projects depicted on an ALP that are not expected to be undertaken within 15 years. However, if a full SRM assessment is required, an SRM panel, consisting of the airport sponsor (for matters affecting a specific airport), FAA staff from relevant areas, such as the local air traffic control tower manager, or FAA air traffic organization or its flight standards district office, and other subject matter experts, must be convened to review the matter and document the hazards identified, the risks associated with such hazards, and mitigation measures necessary to address any risks that are determined to be unacceptable.
Airport Sponsor Action
The SRM panel’s findings will be documented for review and approval by all panel members and the airport sponsor’s authorized representative for any review affecting a specific airport. For such matters, the airport sponsor’s authorized representative will be required to sign the following acknowledgement:
As a duly authorized representative of the sponsor of the airport identified above, I herby certify that I have reviewed and understand the hazards and mitigation measures identified in the attached documentation. I further certify that I understand that it is our legal duty, as sponsor, to ensure that any and all airport-related mitigation measures are fulfilled and documented in a timely manner. Any such commitments on our part represent an obligation under our Federal grant assurances, regardless of whether the FAA participates in the funding of any part of the Proposed Action. Nothing in the FAA’s review may be deemed as relieving the sponsor of its legal obligations as owner and operator of the airport.
Airport sponsors will need to ensure that they comply fully with each of the airport-related mitigation measures required pursuant to an SRM review. The SRM panel review should enhance safety at airports by identifying risks associated with the contemplated action, and the mitigation measures that will address and reduce such risks. By undertaking the identified mitigation measures, an airport sponsor will both comply with its grant assurances, and demonstrate that it has taken reasonable actions to reduce the identified risks to acceptable levels. However, airports that fail to implement the identified mitigation measures risk not only suffering the penalties prescribed for violation of federal grant assurances, but also may be open to significant legal exposure for tort claims should an accident related to the unmitigated risk occur.
Further, this SRM review process presents at least two problems for airports. The first is the language of the foregoing certification, which could be read to impose personal liability on the signatory. We recommend that the FAA revise the required certification to ensure that the entity that is the airport sponsor, not the individual signing the certificate, is clearly the party responsible for compliance with required mitigation measures. The second is that when a project is proposed to the FAA, there will be a level of uncertainty regarding the hazards and attendant risks that will be identified and the mitigation measures that will be required. For most actions that will require SRM analysis, airports should consider undertaking a preliminary SRM process prior to submitting a project to the FAA for approval in order to determine the range of risks that must be mitigated and their cost.
Preview of Part 139 SMS Rulemaking
The Order also provides an indication of how the FAA will implement SMS with respect to Part 139 airports in the forthcoming rulemaking. The Order states that the FAA will synchronize its SMS efforts both internally and externally to the extent practicable. The Order also states that the FAA is committed to an integrated approach to SMS across all of its lines of business, including common definitions and understanding of risk, consistent methods for analyzing and assessing safety risks, common safety risk management techniques, consistent safety assurance procedures, and common approaches to defining acceptable levels of risk. Thus, for example, the SRM analytical methodology and requirements set forth in the Order are likely to be replicated in the requirements for airports’ SMS. The Order provides an objective set of criteria for classifying the severity of hazards, determining the likelihood of their occurrence, and ranking risks as high, medium, or low. These objective criteria will help airports demonstrate the reasonableness of their actions in the event that an identified hazard that has been deemed to be an acceptable risk results in a personal injury or property damage. Furthermore, under the Order, the FAA states that it will provide additional resources for addressing safety issues by creating the new Safety Management Division; set up a voluntary, confidential safety reporting system for FAA employees; emphasize management’s obligation to establish a “positive safety culture”; and phase in implementation of SMS reviews. Taking a similar approach to drafting the rules applicable to Part 139 certificated airports will help the FAA achieve the goals of SMS, yet prevent unwarranted increased legal exposure for airport operators.
Promulgation of the Order Without Public Input
As noted above, although the Order primarily sets forth requirements for the FAA’s ARP division and other FAA lines of business, the Order will impose obligations on airport sponsors and operators. Where significant new obligations will be imposed on external parties, such as, in this case, all airports within the NPIAS, a public process should be undertaken that includes issuance of a draft or proposed Order and request for comments, followed by issuance of a final Order, including responses to the comments raised. Airports that are expecting to undertake one of the significant actions subject to SRM review on or after June 1, 2011, will need to build in this additional, potentially significant, review into the cost and timeline of such projects or other undertakings. Furthermore, at this point, airports have relatively little guidance concerning the scope of such a review or its cost. In the future, the FAA should take the time to seek and consider input from affected parties when undertaking significant rulemakings.
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David Y. Bannard
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