Impact of Regulatory Compliance Costs on Small Airports (2013)

Below is the uncorrected machine-read text of this chapter, intended to provide our own search engines and external engines with highly rich, chapter-representative searchable text of each book. Because it is UNCORRECTED material, please consider the following text as a useful but insufficient proxy for the authoritative book pages.

19 2.1 Overview There was substantial regulatory and compliance activity during the study period. A total of 291 regulatory or compliance actions were adopted and are distributed as follows: • FAA/DOT 150 actions • Environmental 39 actions • Security 81 actions • OSHA 21 actions The regulatory and compliance actions took a variety of forms, as described below. Tables A-1, A-2, A-4, and A-5 in Appendix A of ACRP Web-Only Document 15, Volume 1 (www.trb.org/Main/Blurbs/168946.aspx), provide informa- tion on each individual regulatory or compliance action. The tables include the title of the document; the type of action, e.g., new regulation, amendment, or new advisory circular; the adoption or issue date of the action; and a summary of the action. If the document is available on the Internet, a URL is provided. For documents published in the Federal Register, the issue date is the Federal Register publication date. For other documents, the issue date is the date listed in the document. Within the lists for each regulatory agency, documents are listed in chronological order, with one exception. Some documents or regulations were modified or reissued multiple times during the study period. For these items, all revisions, amendments, reissuances, etc. are listed sequentially to aid in the tracking of changes over time. 2.2 FAA/DOT Requirements The FAA and DOT together adopted 150 compliance actions during the study period. The FAA adopted 140 regulatory or compliance actions, and the DOT adopted 10. Table A-1 in Appendix A summarizes each requirement. FAA documents are listed first and followed by the DOT documents. 2.2.1 FAA Requirements The 140 FAA requirements took many forms besides regulations, which are directly binding on airports. Other compliance documents include advisory circulars (ACs), agency orders, certification alerts (CertAlerts), program guidance letters (PGLs), and passenger facility charge (PFC) updates. The documents become binding on airports through vari- ous indirect methods. For example, an FAA order includes direction to FAA staff on administering the programs covered by the order. Airports become subject to the order through the FAA’s administration of the program. PGLs and PFC updates work similarly. Some ACs are incorporated by refer- ence into AIP grant agreements and become binding when a grant agreement is executed. Other ACs are defined as one (and sometimes the only) means of complying with Code of Federal Regulations (CFR) Title 14, Part 139. The FAA compliance actions were distributed among the following document types: • Regulations—6 • Orders—8 • ACs—86 • CertAlerts—20 • PGLs—10 • PFC updates—7 • Other—3 The requirements fall broadly into the following categories: • Part 139 airport certification requirements • Airport safety, standards and design • Airport operations • AIP administration • PFC administration • Airport grant assurance compliance There is substantial overlap among categories. C H A P T E R 2 Regulations Applicable to Small Airports

20 The small airports included in the study are required by statute to hold an Airport Operators Certificate. The primary source of the compliance requirements for the airport certifi- cation program is 14 CFR Part 139, a mandatory regulation. Additional requirements are introduced through the issuance of ACs—for example, the FAA has developed and published airport design standards in ACs. Others are applied through CertAlerts. Airport safety and design standards are based on Part 139 requirements, as noted. FAA also has authority to establish standards for projects funded with AIP grants. During the study period, the FAA issued 43 airport design ACs or modifications. Most requirements for airport operations are based on the FAA’s authority under Part 139. Other operational requirements are applied through CertAlerts and ACs. The airport grant assurances also contain requirements for on-airport operations and management, as discussed in the following paragraphs. The AIP is one of two federal financial assistance programs available to airports. The PFC program is the other. The AIP provides direct cash grants to airports for capital development and planning. The primary source of guidance for the AIP is the AIP Handbook, Order 5100.38C (June 28, 2005). Other orders address specific issues, such as development of the national Airports Capital Improvement Plan (Airports Capital Improvement Plan, Order 5100.39A, August 22, 2000), and des- ignation of airports in the National Plan of Integrated Airport Systems (Field Formulation of the National Plan of Integrated Airport Systems, Order 5090.3C, December 4, 2000). The orders are supplemented by PGLs and program information memos. Many ACs also establish requirements for design and imple- mentation of AIP-funded projects. The PFC program enables airports to collect a fee of up to $4.50 per passenger to pay the costs of projects for capital development, planning, and noise compatibility. The collection and use of the fee is subject to FAA approval. The FAA approval requirement is the reason PFCs are considered federal assis- tance, but PFCs are in fact airport-generated funds. 14 CFR Part 158 establishes the basic requirements of the program. The PFC Order, Order 5500.1 (August 9, 2001) provides com- prehensive guidance on program administration. The PFC Order is supplemented by PFC updates. As a condition of receiving AIP funds, airports execute a grant agreement with 39 grant assurances. Some assurances govern implementation of the projects. Others govern airport operation, management, and finance. The assurances are all based on provisions in the statute governing the AIP. The pri- mary source of guidance on grant assurance compliance is the Airport Compliance Manual, Order 5190.6B (September 2009). The order provides general guidance and direction to FAA staff in administering the Airport Compliance Program. Additional general guidance is provided in policy statements and com- pliance guidance letters. The FAA also issued one guidebook addressing air carrier incentive programs. The FAA often interprets the grant assurances and gives direction to airports on a case-by-case basis, after an administrative investigation. FAA compliance investigations are usually based on complaints from airport users, but the FAA occasionally begins an inves- tigation on its own volition. Technical Appendix 2 provides additional information on the nature and scope of the FAA requirements. 2.2.2 DOT Requirements Nine of the 10 DOT requirements adopted during the study period were regulatory documents (regulations or amend- ments to regulations). One document was a policy statement. Eight of the regulations apply to airports as recipients of federal assistance. Three apply only to programs adminis- tered by DOT elements, e.g., 49 CFR Part 26, Participation by Disadvantaged Business Enterprises in Department of Transportation Financial Assistance Programs. Five regula- tions are DOT versions of government-wide regulations [e.g., 49 CFR Part 29, Government-wide Debarment and Suspension (Non-procurement)]. Only two of the regulations and the policy statement apply specifically to airports (e.g., 49 CFR Part 23, Participation of Disadvantaged Business Enterprises in Airport Concessions). Additional information on the nature and scope of the DOT requirements is included in Technical Appendix 2. 2.3 Environmental Requirements A total of 39 potential environmentally related regulatory and compliance actions were adopted during the study period. Of these actions, 28 were issued by the EPA, three by the DOT, and seven by the FAA. One Executive Order was issued. The specific regulatory and compliance actions are summarized in Table A-2 in Appendix A. Some PGLs issued during the study period address environmental requirements. Because of their relation to AIP funding requirements, they are summarized in Table A-1. 2.3.1 General Environmental Requirements Most federal environmental regulatory requirements are found in Title 40 of the CFR, administered under the author- ity of the EPA. However, federal environmental regulations are not always implemented and enforced at the federal level. The EPA has delegated the responsibility to administer many environmental regulations to its state counterparts that have adopted the federal regulations or promulgated regulations that are at least as stringent. To a limited extent, environmental regulations appear under Title 10 [Energy, administered by the Department of Energy (DOE)] and Title 49 (Transportation, administered by the DOT).

21 The general environmental requirements fall under one of the following regulatory areas: • Air quality – General conformity – Hazardous air pollutants • Emergency planning, response, and reporting • Planning and development—all appropriate inquiries • Waste management – Hazardous waste – Recordkeeping • Water resources – Drinking water – Spill prevention, control, and countermeasure (SPCC) – General National Pollutant Discharge Elimination System (NPDES) permits – Construction stormwater Each topic may include regulations covered under sepa- rate regulatory programs or under the authority of differ- ent federal agencies. For example, actions identified as part of waste management include amendments to the hazardous waste, universal waste, and used oil regulations, which may be regulated under the authority of the EPA or the DOT. Table A-3 in Appendix A provides a summary of the typical federal environmental requirements applicable to small air- ports. The table also lists potential airport activities related to each requirement. The table includes requirements that were not adopted or revised during the study period. Those topics addressed in this study are indicated by check marks. The table is included to indicate the full range of environmental requirements that may apply to small airports. Detailed descrip- tions of each regulatory program are presented in ACRP Report 43: Guidebook of Practices for Improving Environmental Performance at Small Airports (2011). 2.3.2 FAA Environmental Requirements Small airports are also subject to the FAA environmental requirements, including regulations under Title 14 (Aero- nautics and Space), ACs, and orders. The FAA Airport Envi- ronmental Program helps airports implement the provisions of the National Environmental Policy Act (NEPA), noise compatibility planning (14 CFR Part 150), noise and access restrictions (14 CFR Part 161), and property transfers. During the study period, the FAA issued updates to FAA Orders 1050.1 and 5050.4, which establish requirements for implementing NEPA for FAA programs generally and AIP-funded projects, respectively. The FAA also issued various ACs under series 150 addressing environmental issues (Table A-2). Subjects included management of hazardous waste, management of wildlife hazards, and minimizing pollution from earthwork during airport construction. The FAA also issued PGLs addressing noise compatibility (Table A-1). 2.3.3 Executive Orders Environmental requirements are also issued in the form of Executive Orders that provide direction to cabinet depart- ments and other executive branch agencies on implement- ing federal laws and policies. During the study period, one Executive Order was issued, E.O. 13158, Marine Protected Areas, to protect natural and cultural resources in the marine environment. 2.4 Security Requirements During the study period, responsibility for aviation security changed as did security requirements themselves. In January 2000, the FAA was responsible for civil aviation security functions and responsibilities under Title 49 of the United States Code (USC). The FAA issued and administered Federal Aviation Regulations (FARs) for aviation security. The primary regulatory documents were 14 CFR Part 107, governing airport security, and Part 108, governing air carrier security. Under FAR Part 107, airports were required to adopt and carry out an airport security program (ASP). The ASP described how the airport would comply with and carry out the federal regulations and requirements. The FAA frequently introduced new security requirements not by amending Part 107, but by issuing emergency amendments requiring changes to ASPs. All changes or amendments to ASPs also required approval prior to implementation. Following the events of September 11, 2001 (9/11), Congress enacted the Aviation and Transportation Security Act (ATSA) of 2001 (Pub. L. 107-71, November 19, 2001). ATSA required significant changes in airport and airline security. ATSA estab- lished the TSA and transferred authority for all civil aviation security functions from the FAA to the TSA. The TSA reissued and updated airport security requirements, which are now located at 49 CFR Part 1542. In addition, the TSA redesignated emergency amendments for ASPs as security directives (SDs). During the study period, federal agencies adopted a total of 81 security requirements. These requirements are summarized in Table A-4 in Appendix A. Twenty-one were adopted by the FAA; 58 were adopted by the TSA; one was adopted jointly by the FAA and TSA; and one was adopted by Customs and Border Protection (CBP). Most of the FAA and TSA security requirements were adopted to improve aviation security in response to the events of 9/11. Two of the requirements were regulatory actions published in the Federal Register; 77 were emergency amendments or SDs; one was an amendment to ASP Requirements (AP);

22 and the CBP document was a guidance document on airport technical design standards. This report cannot provide specific information on the contents of the emergency amendments, SDs, and AP, because they include SSI and public disclosure is prohibited. The changes affected passenger and baggage screening procedures and equipment, access controls and perimeter security, airfield security, badging and ID requirements, and background checks for people with access to secure areas. 2.5 Occupational Safety and Health Requirements The small hub and non-hub primary airports included in this study are publicly owned and therefore not subject to the direct jurisdiction of OSHA. Depending on the approach to occupational safety and health regulation adopted by its state, an airport may be subject to state regulation or governed by a voluntary program. States are authorized to adopt compre- hensive occupational safety and health requirements for private sector employees. States doing so must include the public sector employees within their programs. In addition, states are autho- rized to adopt mandatory programs strictly for state employees. Local governmental units may also adopt occupational safety and health programs as mandatory or voluntary measures. As reflected in Table A-5 in Appendix A, 21 OSHA regula- tory or compliance actions with potential impacts on airports were adopted during the study period. Fourteen of the actions were regulatory. One was a compliance directive (Table A-5, Item 20). Two were revisions to voluntary programs and the remaining four were guidance documents. Most employees of airport operators would be considered public employees. Therefore, the OSHA requirements would apply to these employees only through the application of state programs or voluntary programs. OSHA requirements adopted during the study period may be relevant, to the extent they are incorporated in state programs or airport voluntary programs. In addition, private contractors and tenants would be subject to OSHA regulation, unless they are covered by a qualifying state plan. Few new regulations adopted from 2000 through 2010 have a significant direct impact on airports. For example, the revisions to the personal protective equipment, respirator fit testing protocols, and recordkeeping forms could have affected many airports, but the revisions were not significant and should not involve major costs.