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NTSB Statement on FAA Final Rule Requiring Operators and Organizations to Have Safety Management Systems

​​​WASHINGTON (April 23, 2024) – The National Transportation Safety Board welcomes recent action by the FAA that will require charter airlines, commuter airlines, helicopter emergency medical services, air tours and certain aircraft manufacturers to implement safety management systems (SMS) but more action is needed to protect all passengers.

“Requiring more operators to implement proven strategies to protect the flying public is a positive step for safety, and one the NTSB has long supported,” said NTSB Chair Jennifer Homendy. “I applaud FAA for today’s action, which will go a long way toward protecting flight crews and passengers in our skies. We look forward to working with FAA to address even more of our safety recommendations and, together, make our nation’s stellar aviation safety record even better.” 

SMS is an organizational-wide system that ensures operators and manufacturers are properly identifying, assessing, and mitigating the conditions that exists before an accident occurs. By collecting and analyzing data on potential problems and evaluating mitigations, operators and manufacturers can properly predict and prevent accidents. 

The NTSB issued its first aviation recommendation on SMS in 2007 that resulted in the FAA requiring commercial air carriers to implement an SMS. However, NTSB investigations have consistently supported expanding the requirement for SMS to other aviation service providers. Our investigation of the Jan. 26, 2020 helicopter crash in Calabasas, California revealed that, although the operator of that on-demand flight had implemented an SMS, the operator had no documented policy and safety assurance evaluations, which hindered the effectiveness of its SMS. The NTSB recommended that operator participate in the FAA’s voluntary SMS program, which the company decided to not implement. Low participation in these voluntary programs despite FAA promotion, underscores the importance of a mandate.

“This is a significant step forward for aviation safety. I’m pleased the FAA issued the final rule requiring all Part 135 operators and Part 91.147 air tour operators to implement a Safety Management System,” said NTSB member Michael Graham, “Operators are safer when they proactively and systematically identify hazards and mitigate their changing risks through a Safety Management System.”

The NTSB currently has 6 open recommendations to the FAA regarding SMS ( A-16-036 , A-19-028 , A-21-013 , A-21-014 , A-21-048 , A-22-015 ). The NTSB is currently reviewing the rule to determine which recommendations would be satisfied by it. The NTSB’s response to an earlier Notice of Proposed Rulemaking on this issue is available on its website ​.      

To report an incident/accident or if you are a public safety agency, please call 1-844-373-9922 or 202-314-6290 to speak to a Watch Officer at the NTSB Response Operations Center (ROC) in Washington, DC (24/7).

How to Become an Air-Tour Operator

James wynbrandt.

Air-tour operators combine flying in a time machine, like St. Augustine Biplane Rides’ 1935 Cabin Waco YOC, with seeing some of the most beautiful sights the country has to offer. Dave Genet

Air-tour operators in the United States conduct sightseeing flights from Bar Harbor, Maine to Maui, and from Key West to northern Alaska. Dave Genet, proprietor of St. Augustine Biplane Rides in St. Augustine, Florida (KSGJ), established his business in 2012 with the goal of using historical aircraft — currently a 1935 Cabin Waco YOC — to offer aerial views of North America’s oldest city. “Not only are you flying in a time machine, but you’re flying over one of the most historic places in the U.S., so it’s a perfect match,” Genet says.

What federal regulations govern air-tour operations?

Commercial air tours using powered aircraft and remaining within 25 statute miles of their home airports operate under Part 91 rules and require an FAA letter of authorization (LOA) approving their operation. Participation in a DOT drug and alcohol test program is a key requirement for approval. “Anybody who touches the airplane with a wrench or flies it has to be on the test program,” Genet says. Where applicable, airspace rules regarding national parklands (e.g., Castillo de San Marcos national monument in downtown St. Augustine) must be observed.

What background does an air-tour pilot need?

No academic training or study program for the air-tour business exists. Pilots of powered aircraft must have a commercial license and be highly experienced with the type of aircraft flown, as well as have excellent people skills. “Half the folks are kind of freaked out” by flying in a small aircraft, Genet notes, and need to feel at ease with the pilot. As for playing tour guide, once customers are airborne, “I try to let them enjoy the experience,” Genet says. “You don’t have to talk the whole time.”

What makes a good base location?

Potential customers and points of interest worth seeing from the air are required. St. Augustine has fewer than 14,000 residents but draws 1 million to 4 million visitors per year by various counts, Genet says. A supportive airport is also important. (An operating agreement and fee payments are required.) The location on the airport must be zoned for commercial operations, and security rules governing customers’ airport access strictly observed.

How do you determine how much to charge?

Operators typically offer a variety of tours, with prices based on flight time. “My average flight is $184 for two people for 22 minutes,” says Genet. “It’s a great price,” he adds. “People pay 90 bucks for a walking tour at night.” The aircraft type and even fuel prices also impact tour costs. If it weren’t for SGJ’s low fuel prices he’d have to raise his rates, Genet says.

How do you market an air-tour business?

“It’s a mix — you can’t have just one” media, Genet says. He advertises in local circulars and entertainment magazines. Postcard-size “rack cards” in hotel kiosks work well, but are expensive. The best exposure is social media, such as positive comments on Facebook and TripAdvisor, though Genet says he never asks customers to post.

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The FAA Office of Chief Counsel addressed this issue in a recent  Legal Interpretation . The Interpretation responded to a request by an operator asking whether his operation “could be considered an air tour that would need to comply with  § 91.147 .”

In his request, the operator indicated that he owned a Stearman biplane in which he offered aerobatic/biplane rides. He also stated that he did not hold out as being willing to conduct a sightseeing flight for hire, did not provide a narrative, did not fly over a particularly scenic area, did not fly over a tourist area, and did not “include sightseeing as part of a travel arrangement package.” Based upon these facts, the operator asked the FAA to confirm that “the regulations governing air tours, including the  § 91.147  Letter of Authorization and drug and alcohol testing requirements [did] not apply to [his] operations.”

The Interpretation initially observed that “[w]ith limited exceptions, a person conducting passenger carrying operations for compensation or hire must hold a  part 119  air carrier or commercial operator certificate.” However, nonstop commercial air tours are an exception to this rule and may be operated without a  part 119  certificate under  part 91  rules, provided certain conditions are met.”

Next, the Interpretation observed that FAR  § 110.2  defines a commercial air tour as “a flight conducted for compensation or hire …where a purpose of the flight is sightseeing.” To determine whether a flight is a commercial air tour, the FAA may consider the following eight factors:

• Whether there was a holding out to the public of willingness to conduct a sightseeing flight for compensation or hire;
• Whether the person offering the flight provided a narrative that referred to areas or points of interest on the surface below the route of the flight;
• The area of operation;
• How often the person offering the flight conducts such flights;
• The route of flight;
• The inclusion of sightseeing flights as part of any travel arrangement package;
• Whether the flight in question would have been canceled based on poor visibility of the surface below the route of the flight; and
• Any other factors that the FAA considers appropriate

Although the FAA may consider these factors to determine whether a flight is a commercial air tour, it is not required to, nor does an operation have to meet a one or more of the factors for the FAA to conclude that an operation is a commercial air tour. As a result, based upon factors other than the eight included in the definition, the FAA could still find that a flight is a commercial air tour because it is (1) conducted for compensation or hire and (2) for the purpose of sightseeing.

With this background, the Interpretation then informed the operator that the FAA would need additional facts in order to render an opinion as to whether the operation was, or was not, a commercial air tour that must operate pursuant to  § 91.147  or the air tour rules of  part 136 . Finally, It concluded with a reminder to the operator that “if a flight involves the carriage of persons or property for compensation or hire, and does not meet an exception listed in  § 119.1(e) , then the operator is required by  part 119  to hold an air carrier or commercial operator certificate and conduct such flights in accordance with the appropriate operating rules.”

Unfortunately, this Interpretation doesn’t provide the operator with an answer to his question nor does it provide much concrete advice. Basically, the FAA can look at the eight factors, or anything else it may want, in order to reach a conclusion that an operation is a commercial air tour. Although an operator can use the factors to structure his or her operation, that won’t guarantee the FAA will agree with the operator’s opinion of whether his or her operation is a commercial air tour. As a result, operators should do their best to document how their operations do, or do not, fit within the eight factors and, hopefully, their local FSDOs will agree.

Greg Reigel

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