Smaller operators contemplate the costs of the FAA’s proposed Safety Management System regulation
SAFETY
Small companies that make money operating aircraft and helicopters face the prospect of airline-style regulation as the FAA’s long-anticipated Safety Management System (SMS) rule for Part 135 and 91 operators advances through the federal rulemaking process.
In January the FAA published a notice of proposed rulemaking (NPRM) to update and expand its Part 5 requirement for SMS implementation beyond airlines to include Part 135 charter operators, Part 91.147 air tour operators and certain Part 21 type certificate and production certificate holders. At the request of business aviation associations, the agency postponed an earlier comment deadline it had scheduled to April 11.
If adopted as proposed, the rule would affect about 2,600 charter and air tour operators of all sizes, requiring them to establish formal SMS programs to identify, assess and manage safety risks. Tasks would include developing a code of ethics specifying safety as the highest priority, a confidential employee reporting system, associated documentation and a means to store records. Companies ranging from fleet operators to single-pilot, single-aircraft enterprises would have one to two years after a final rule is published to introduce their programs.
Part 135 air medical provider Jet Logistics has adopted the International Standard for Business Aircraft Operations, a framework for safety and operational processes. Credit: Jet Logistics
The FAA addresses the issue of scaling the regulation to small operators in the draft rulemaking, seeking feedback on whether the mandate should be limited to a certain subset of operators. It acknowledges that some Part 91.147 operators conduct relatively few flights—the agency had considered exempting those with fewer than 100 flights per year—and that some Part 135 operators use only one pilot-in-command.
A review of NTSB reports from 2015-20 shows that Part 135 companies employing a single pilot were involved in five accidents resulting in a fatality or serious injury, the FAA says. There was one accident involving fatalities of a Part 91.147 operator with fewer than 100 flights per year. On March 11, 2018, the pilot of a Liberty Helicopters’ AS350-B2 Ecureuil ditched the helicopter in the East River in New York City after the front-seat passenger’s harness tangled with and activated a floor-mounted engine fuel shutoff lever. The pilot was able to escape from the helicopter, but his five passengers drowned.
“As a fundamental matter, the flying public expects safe carriage from operators offering flight services for hire,” the FAA states in the NPRM. “Irrespective of whether an operator employs one pilot or a thousand, that company has the same responsibility to conduct safe operations.”
A Fait AccompliPart 121 airlines have been required to have SMSs since 2018, based on a final rule the FAA published three years earlier. That smaller operators will be required to implement SMS programs is considered a fait accompli; bizav associations have focused their response to the NPRM on ensuring that the eventual regulation is scaled, or right-sized, to the resources of the companies they represent.
During industry forums designed to generate feedback from the operator community, concerns have been raised (as expected) over the cost of the approaching mandate, but also over the applicability of safety measures that companies have implemented on their own or through voluntary programs.
“We take safety very seriously—we haven’t implemented a formal SMS due to the cost of doing so,” said one operator who spoke during a National Air Transportation Association (NATA) webinar in February. NATA, which represents aviation businesses including Part 135 certificate holders, says 95% of those operators have fewer than 100 employees.
The operator asked: “Am I going to have to hire a compliance person? I’ve got myself as DO (director of operations) and my chief pilot and four or five pilots underneath us. We don’t need a 200-page SMS. How is the FAA going to scale its requirements to take into account the fact that I can’t pay a $60,000 salary to a compliance officer to make sure that we’re meeting what the FAA wants us to do.”
Another operator asked if the safety practices his company already follows will be satisfactory to the FAA. “We’re a small company,” he explained. “We’ve morphed over the years, but we’re three aircraft [and] eight pilots right now. We do everything on pen and paper. We don’t do any kind of electronic risk [analysis] or any of that. Is that good enough?”
In the NPRM, the FAA says it “does not anticipate that small organizations will need additional management and staff to satisfy the requirement elements of safety risk management. For example, smaller organizations, with few aircraft operating in a limited geographic area, might record and track the results of the safety risk-management process with paper records or digital files using common word processing or spreadsheet applications.”
The FAA estimates that about 200 operators either have accepted systems or applied for acceptance under its SMS voluntary program for Part 135 carriers, representing about 10% of the community, judging by numbers that have been made public. The International Business Aviation Council lists 359 U.S.-based operators registered through its International Standard for Business Aircraft Operations (IS-BAO) program, a voluntary standard dating to 2002.
The FAA’s proposed SMS regulation for Parts 135 and 91 operators is “a good start” but doesn’t go far enough, NTSB Chair Jennifer Homendy told BCA. Credit: Bill Carey/Aviation Week
During a session that NBAA held at its Schedulers & Dispatchers Conference in Nashville, Tennessee in January, the relevance of the IS-BAO standard came up. W. Ashley Smith Jr., founder and president of Part 135 air medical provider Jet Logistics, said his company adopted the voluntary standard when it planned to begin flying to Bermuda, which required an internationally recognized SMS.
Jet Logistics had started implementing an SMS through the FAA’s voluntary program but abandoned the effort after finding that it was detracting from the multi-tiered IS-BAO process, he said. Based in Johns Island, South Carolina, the company operates a fleet of 16 Citation, Lear and Hawker jets for patient and donor organ transport.
“What concerns me is that the FAA will do one of two things,” Smith told BCA. “They will either just simply make Part 5 applicable to us, which would make it complicated and overly burdensome, or they will try to mirror something like their voluntary program, which is also complicated and overly burdensome. That’s why I talk about: is there a way we could sell them on IS-BAO, because a lot of industry has already embraced it and already started down that path. The problem is that the FAA does not like to outsource things.”
NTSB’s Most Wanted ListRolling out the SMS paradigm to all revenue passenger--carrying operations tops the aviation portion of the NTSB’s 2021-23 Most Wanted List of Transportation Safety Improvements. The safety board first recommended that SMS programs be implemented by Part 121 airlines in 2007; it called for the same requirement for public aeromedical helicopters in 2009, Part 135 charter operators in 2016 and air tour operators in 2019. In March 2021, the board adopted an investigative report that recommends SMS programs be required for all moneymaking Part 91 operations, including parachute-jump flights, historic aircraft experience flights and sightseeing balloon trips.
In May 2022, the NTSB issued Safety Recommendation A-22-15, which calls on the FAA to develop guidance on scaling SMS programs “that includes methods and techniques for implementation and specific examples applicable to several operational sectors, including air tours.” A reference in the SMS proposed rulemaking to a draft revision of AC 120-92, an FAA advisory circular that contains information on scalability, “does not address the call for specificity outlined in Safety Recommendation A-22-15 because it remains too general,” the NTSB states in comments on the NPRM.
Safety Recommendation A-22-15 was one of eight new and several reiterated recommendations the NTSB made following its investigation of the Dec. 26, 2019, collision into terrain of a Safari Aviation Airbus AS350 B2 sightseeing helicopter on Kauai, Hawaii, killing the pilot and six passengers. The board determined that the pilot’s decision to continue flying into instrument meteorological conditions under visual flight rules was the probable cause of the accident. Safari Aviation’s lack of safety management processes to identify hazards and mitigate the risks was a contributing factor.
In its comments on the current NPRM, the NTSB says it “strongly” supports the expansion of SMS requirements to include Part 135 operations “without exceptions for the size of the operator,” as well as to operators conducting air tours under Part 91.147. The board faults the proposed rule for not including other operations under Part 91. “We remain steadfast in the position taken in our [March 2021] special investigation report that SMSs are necessary to improve the safety of all Part 91 revenue passenger-carrying operations, and we urge the FAA to address this omission in the final rule,” the board states.
“The air tours is a good start, but we want to see the rule broadened,” NTSB Chair Jennifer Homendy told BCA. “It is a great first step because it is something we’ve been focused on for a long time, but we’d like to see some additions.”.
—Based in Washington, DC, Bill Carey covers avionics, air traffic management and aviation safety for Aviation Week. A former daily newspaper reporter, he has covered the commercial, business and military aviation segments as well as unmanned aircraft systems. Prior to joining Aviation Week in November 2017, he worked for Aviation International News and Avionics and Rotor & Wing magazines.
