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carriers indicates that, without exception, their backgrounds met or exceeded the levels expected for specialists of this type.

The amount of time spent by inspectors working with specific operators is subject to many factors. Demand work since deregulation has increased and may have influenced surveillance activities in some instances. New national guidelines to set priorities have been drafted and should serve to insure emphasis on, and proper staffing for, surveillance functions.

It should be noted that the FAA is taking action to insure proper allocation of inspector resources and to support staffing adjustments if necessary. Project SAFE will provide specific job task analysis information pertaining to field inspector's duties. Additionally, several actions pertaining to inspector training have been initiated and revisions and rewrites of guidance and reference material are underway.


SENATOR STENNIS AND SENATOR COCHRAN: We have been informed that the explanation now given by the FAA for its withdrawal of the exemption is that it never had the statutory authority to grant such exemptions in the first place. How can the agency justify this explanation in light of the Federal Register Notice mentioned earlier? As we understand it, even the FAA's Chief Counsel's office is of the opinion that the Administrator has sufficient statutory authority to grant limited exemptions under Section 313 of the Federal Aviation Act.

ANSWER: In order to properly answer the next two questions, it is important to put into perspective certain historical aspects of the airport certification issue.

In 1970, Congress adopted Section 612 of the Federal Aviation Act of 1958 (FA Act), which empowered the Administrator of the Federal Aviation Administration (FAA) to issue airport operating certificates to airports serving Civil Aeronautics Board (CAB) certificated air carriers and to establish minimum safety standards for the operation of those airports. This legislative action was sponsored by certain industry organizations in the interest of aviation safety. In 1972, the CAB revised its regulations to require air carriers, operating aircraft configured with more than 30 passenger seats and a maximum payload capacity of more than 7,500 pounds, to obtain a certificate of public convenience and nece

ecessity (CPCN). However, the CAB did not cancel existing CPCN's of air carriers that operated smaller aircraft. In this same year, the FAA implemented Section 612 of the FA Act by adopting Part 139 of the Federal Aviation Regulations (FAR). Thus, since 1972 the FAR required airports that serve CAB-certificated air carriers, regardless of the size of the aircraft operated, to be certificated in accordance with Part 139. This included all air carrier operations conducted with aircraft configured with more than 30 seats.

In 1974, the FAA adopted FAR Section 121.590 which prohibited CAB-certificated air carriers from operating into an airport unless the airport was certificated under Part 139. Section 121.590 was adopted to preclude air carriers from subjecting uncertificated airport operators to violations of

Part 139. FAR Part 121 addresses the responsibilities of air carriers, and FAR Part 139 addresses the responsibilities of airport operators.

In 1978, in order to align its air carrier certification and operating rules with then current CAB rules, the FAA adopted Special Federal Aviation Regulations (SFAR) 38. SFAR 38 required air carriers operating aircraft with more than 30 passenger seats and a maximum payload capacity of more than 7,500 pounds to be certificated and to operate under FAR Part 121. Air carriers operating smaller aircraft were required to be certificated and to operate under FAR Part 135. At this point the CAB and FAA regulations were in concert.

However, as one of the first major changes in response to the Airline Deregulation Act of 1978 (ADA), the CAB amended its economic regulations in May 1979 so that only air carriers operating aircraft with more than 60 passenger seats and a payload capacity of more than 18,000 pounds needed to be CAB "certificated." Once again the CAB did not cancel existing certificates of air carriers operating smaller aircraft. Therefore, a situation existed whereby only Part 139-certificated airports could serve an air carrier holding an existing CAB certificate, regardless of the size of the aircraft being operated, while airports serving new entrant air carriers with larger aircraft (31 to 60 seats) that were not CAB certificated were not required by the Act or FAR Part 139 to be Part 139certificated airports.

The FAA became concerned that the then current Part 139 did not require many of the airports serving the "new entrant" air carriers operating the larger aircraft (31 to 60 seats) to be Part 139 certificated, although the traveling public was likely to assume that the enhanced level of safety and service would be provided at those airports.

To resolve these inconsistencies, the FAA initiated two actions. First, the FAA recommended to the appropriate congressional committee that Section 612 of the FA Act be studied and revised as necessary to de-link airport certification from CAB certification. This action was appropriate and necessary to continue the effectiveness of Section 612 when the CAB eventually sunseted. The second action involved a policy decision by the FAA Administrator to maintain consistency by keeping in effect the requirements of airport certification and air carrier operations that had existed since 1972 and 1974. These requirements basically specified that airports serving air carriers that operated aircraft with more than 30 seats (previously requiring CAB certification) be certificated under Part 139 and that FAR Part 121 air carriers operate only into Part 139 certificated airports. This policy decision, issued on January 20, 1982, stated, in part, "Part 139 will continue to be applicable to airports serving air carriers operating under a CAB certificate (over 60 seats), and FAR Section 121.590 will continue to require air carriers operating under Part 121 (over 30 seats) to conduct operations into airports certificated under Part 139."

On September 3, 1982, Congress enacted the Airport and Airway Improvement Act (Public Law 97-248). This law empowered the Administrator to issue airport operating certificates and to establish minimum safety standards for the operation of airports that serve any scheduled or unscheduled passenger operation of


air carrier aircraft designed for more than 30 passenger seats. On March 14, 1984, the FAA implemented revised Section 612 of the FA Act by adopting Amendment 139-13 to FAR Part 139. This change to Part 139 required airports serving air carriers operating aircraft with more than 30 passenger seats be certificated under Part 139.

The obvious purpose to these statutory and regulatory efforts was to enhance the level of safety in that segment of the aviation industry that provides most of the air transportation to the traveling public. FAR Part 121 air carriers (the over 30-passenger seat aircraft) constitute that segment of the industry. The current requirements on air carriers and airports are the same as those which existed prior to deregulation. In the adjustments which took place as a result of deregulation, noted above, there was a short time in which Part 139 certification was keyed to 60 seats (the then CAB cutoff) rather than 30 seats.

With this historical perspective in mind, it is important to distinguish the difference between an exemption and a deviation. An exemption to a regulation is obtainable only through a regulatory process which includes formal petitioning, publication in the Federal Register, public interest considerations, etc. In the case of a deviation, the specific regulation itself permits the Administrator or his agent to grant authority to deviate from part or all of the specific regulation without going through a formal regulatory process. FAR Section 121.590 contains a provision for the Administrator to grant a deviation and does not require this lengthy exemption process. A deviation authority is usually granted through an amendment to the air carriers' operations specifications. Our answer to the first question follows:

With respect to the air carrier in question, it originally sought a deviation to permit the use of aircraft suitable for the carriage of specialized oil drilling equipment, and the personnel who would use that equipment, to rural areas not served by certificated airports. In response to this unique need, a deviation to FAR Section 121.590 was granted for the 48-seat Convairs on April 2, 1982. Admittedly, the deviation was granted inappropriately in that it was contrary to the Administrator's policy decision issued in January 1982. However, the deviation was not contrary to the then existing Section 612 of the FA Act, PAR Part 139, or FAR Part 121. Consequently, the deviation was permitted to continue in effect pending the outcome of congressional action on the Airport and Airway Improvement Bill and the rulemaking action necessary to implement the provisions of the revised FA Act. The FA Act was revised in September 1982 and revised FAR Part 139 was made effective on May 29, 1984.

The explanation that the FAA never had the statutory authority to grant such a deviation ("exemption") is incorrect. In accordance with FAR Section 121.590, the Administrator and, in this specific case, the Administrator's agent, had sufficient authority to grant the deviation. However, by permitting the deviation to remain in effect after May 29, 1984, resulted in the airport operator being in violation of the intent of Sections 610 and 612 of the FA Act and specifically in violation of FAR Section 139.3 each time the subject air carrier operated into an uncertificated airport.


The FAA now finds that the deviation authority originally granted for unique oil prospecting purposes is being used for routine air transportation purposes. This significant change in circumstances was one of the reasons for the FAA's reevaluation of the propriety of continuing the deviation authority.

SENATOR STENNIS AND SENATOR COCHRAN: The Company's existing limited exemption provides for advance notice to the FAA of all proposed flights into uncertificated airports and an opportunity for the FAA to inspect the airports or to object to the flight. These restrictions have been sufficient for safe operations into uncertificated airports in the past. Why are they insufficient now?

ANSWER: At the time the deviation was granted to the subject air carrier and at all times thereafter, the FAA was satisfied that the notification arrangements and restrictions in effect were sufficient to provide for an adequate level of safety. The FAA's reasons for withdrawal of the deviation authority were fourfold: (1) It permitted the subject air carrier to operate into uncertificated airports contrary to the intent of the revised FA Act, in addition to permitting the air carrier to cause uncertificated airport operators to be in violation of the revised FAR Part 139. (2) Many of the uncertificated airports used by the subject air carrier have been in contact with the FAA, and some have subsequently been certificated. Others corrected safety problems that were brought to their attention by the FAA. (3) The subject air carrier's type of operation is not unique, and other air carriers around the country with a similar type of operation have not requested nor were they granted a deviation to FAR Section 121.590. (4) The FAA was concerned that because of the deviation, the passengers of the subject air carrier were not being afforded the same enhanced level of safety that was being provided by other FAR Part 121 air carriers and as was intended by the revised FA Act and the revised FAR Part 139.



SENATOR BYRD: Mr. Engen, the Federal Aviation Administration has selected Elkins, West Virginia, as the site for the consolidated automated flight service station. Would you provide me a copy of your time table for the completion of this facility?

ANSWER: The automated flight service station at Elkins, West Virginia will be constructed by the local commnity and leased to the FAA. Current schedules call for the beneficial occupancy date (BOD) of the new facility to occur during March of 1989. At that time the FAA will start site preparation work including the installation of consoles and communications equipment. It is expected that Model II automation equipment will be installed approximately six months after BOD and be commissioned three months later. Plans for the consolidation of the existing PSS's in West Virginia have not been finalized; however, it is anticipated that consolidation will be completed within two years after the facility is commissioned. SENATOR BYRD: What are FAA's plans with regard to the other flight service stations in West Virginia?

ANSWER: The flight service stations in West Virginia will not be closed or consolidated through 1988.

SENATOR BYRD: Would you supply for the record your long-term plans for West Virginia's air traffic control system?

ANSWER: The FAA plans to continue the same level of air traffic control services we presently provide within the state of West Virginia.

To reduce the costs of low level (VFR) airport traffic control towers we will contract the operation and maintenance of our level I towers in West Virginia to private sector contractors (as we have done at Lewisburg, West Virginia). This program will aid in continued operation of those towers.

SENATOR BYRD: In my state of West Virginia we have numerous airports located in extremely rugged terrain, and we have substantial variations in weather patterns from one county to the next. Therefore, I have a strong interest in insuring that, where necessary, there is some one on the ground with a local knowledge of the highly changeable weather conditions and unique characteristics of the area around a given airport. This is a question of safety.

It is my understanding that such considerations as topography and climate will be part of the criteria for keeping some of the present flight service stations open. Could you tell me what other criteria will be applied, what weight will be given to each of these criteria, and any other considerations that may affect the selection of certain flight service stations for continued operation?

ANSWER: An integral part of our FSS specialist technical training is to require an in-depth knowledge of the local terrain and weather conditions which affect the area in and around a particular airport. The actual location of the FSS facility will not affect our ability to continue to provide these essential services. Criteria is currently under development which will consider factors such as local conditions, topography, and any unique characteristics of the particular area.

SENATOR BYRD: This budget contains a reduction of $39 million or approximately 40 percent of the FY 1985 level for flight service facilities. What activities are being discontinued as a result of the reduction, and at what location?

ANSWER: No activities are being discontinued as a result of this reduction. We can continue the FSS activities with funds currently avaliable in the FSS Modernization program. Therefore we have not requested FY 1986 funds in the facilities and Equipment appropriation.

SENATOR BYRD: While plans are going forward for the Automated Flight Service Station at Elkins, what are you doing to insure that the equipment at other flight service stations is being replaced and kept in good working order ?

ANSWER: We have current ongoing projects to replace obsolete

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