1 April 6, 2011

Docket Operations

M-30 U.S. Department of Transportation 1200 New Jersey Ave, SE

Room W-12140 Washington, DC 20590-0001

Re: Clarifying Questions, FAA-2010-0 997, Safety Management Systems for Certificated Airports

Submitted via www.regulations.gov and email

The American Association of Airport Exec utives (AAAE) would like to thank the Federal Aviation Administration (FAA) for the positive consideration of our second extension request to the comment period for FAA-2010-0997, Safety Management Systems (SMS) for Certificated Airports. We also appreciate the opportunity to submit technical clarifyi ng questions regarding the Notice of Proposed Rulemaking (NPRM) and respec tfully submit the following list of questions of a technical, legal and cost-related nature.

AAAE wishes to submit the following te chnical questions to Ms. Keri Spencer:

 How does the FAA intend to integrat e SMS programs among all the lines of business within the FAA, alon g with Part 139 and Part 121 SMS proposals? Please clarify the hierar chy of authority that FAA expects to implement when multiple programs overlap and whether the Airports District Office, FAA Regional Office s or FAA Headquarters will be the governing body.

 The proposed definition of “Accountab le Executive” refers to a single person with financial and operational control over the airport and airport safety. In some instances, it may be di fficult to identify a single individual that satisfies these requirements, in pa rt because the governing body of an airport (e.g., county commission, city council) may exercise certain controls over the airport. Can the FAA better describe the types of airport employees that might qualify to be the accountable executive? Can the FAA clarify whether it contemplates th at changes in delegations or job descriptions would be required to esta blish that the identified individual meets the requirements of an accountable executive?2  Proposed Section 139.402(d)(1) would require formal safety training for “each employee and tenant with access to airport areas regulated under this part.” This language is incons istent with current Section 139.303, which requires formal safety traini ng for “personnel,” and inconsistent with current Section 139.329(e), which requires formal safety training for “each employee, tenant, or contractor.” (It also is noteworthy that, on February, 1, 2011, the FAA proposed to amend Section 139.303 to require formal safety training for all “persons”. ) What is the proposed scope of the training requirement? Put differently , what are the proposed definitions of “employee” and “tenant”?

 In describing the components of airp ort SMS, proposed Section 139.402 does not identify the individual or entity responsible for each task. For example, proposed Section 139.402(d) indicates that training and recordkeeping are required, but does not indicate whether the airport operator must provide the training and keep records. Would airports be permitted under the proposed rule to delegate training and recordkeeping responsibility to, for example, their tenants?

 What type of data repository does the FAA envision for airport SMS decisions to track trends, and data collected?

 How did the FAA determine 6 months was an appropriate timeline to develop a SMS plan when only limite d pilot program data has been made available? Most airports will require 8-12 months to program funding into their budget and another 3-6 months to develop a RFP and execute a

contract. Was this taken into consi deration when developing the NPRM?

 How did the FAA determine 18 months was an appropriate implementation timeline for Class I airports when implementation pilot programs have yet to be completed? Pilot airports, consultants, and the FAA pilot program website indicate implementation will likely take 3 years, and some program participants, based on their experience, indicate 5 years is more likely and reasonable.

 Will general aviation areas at airports owned or operated by a Part 139 airport be included in the sponsor airport’s SMS requirements?

 How did the FAA come to the conclusion that a phased implementation is not appropriate for this program? Th e industry finds significant benefit from first implementing the program in movement areas, working through implementation challenges and issues, and then phasing implementation into non-movement areas where more complex stakeholder relationships exist.

 Does the FAA intend only to regula te the framework of a SMS program and SRM processes to ensure it is functioning in accordance with the submitted and approved SMS program, or will the FAA reserve the right to3 overturn collaborative SRM processes and modify the program components through the 139 certification inspection process?

 The NPRM defines “non-movement area” to mean the areas of the airfield used for the loading, unloading, park ing and movement of aircraft. Would the non-movement area subject to SMS include paved portions of the airfield that are not used by or acce ssible to aircraft (e.g., portions of the ramp used for ground vehicles)? Can the FAA confirm that the nonmovement area does not include the interior of hangars or other

structures?

 The NPRM states that an SMS wo uld have to encompass aircraft operation in the non-movement area. “Hazard” is defined broadly to include any condition that may lead to injury, dama ge or loss. What is the intended scope of SMS within the non-movement area? In other words, is SMS intended to address only aircraft safety or is it intended to address safety that is unrelated, or only nominally related, to aircraft? Would it, for example, encompass the safety of workers on and around

aircraft? Ground vehicle safety? Passenger safety?

 How will the FAA ensure consistency in program regulation throughout all regions?

 What type of technical training will FAA certification and safety inspectors receive?

 How will FAA ensure new program in spectors will not overturn programs and processes that have been appr oved by prior inspectors?

 How will numerous risk matrices be used when SRA s are conducted amongst the Air Traffic Organiza tion, airports, airlines, etc?

 How will SMS be “applied” to a master plan process that spans multiple years and can include numerous alternatives?

 Which FAA offices or lines of business will participate in the master plan SMS process and at what point in the process will they engage? If multiple offices are participating, which office will be the sole voice for the FAA throughout the process?

 How will the SMS process on a master plan dovetail with the SMS process on an Environmental Impact Statement or Environmental Assessment of

the same Master Plan?

 Will the standard “airspace review” currently conducted by the FAA be absorbed in the SMS process for a ma ster plan or remain a separate process? If it is to remain separa te, how does FAA propose to resolve conflicts and overlaps?

 Given the current federal budget climate, how will airports be assured that the FAA will participate in SRAs with possibly limited staff?4  SRM as defined in the NPRM, requires the establishment of baselines of all hazards or potential hazards. What guidance will FAA give airports on how to establish a baseline if they do not have an archive of baseline data?

 How soon after approval of an airp ort’s SMS manual does the airport’s program need to be “active”?

 The FAA commits not to second guess airport SMS decisions in the NPRM preamble. Can this be stated more explicitly in the rule itself?

 Will the FAA be providing specific guid ance on how will mi litary joint use airports be expected to implement the requirements of the NPRM? Will FAA provide assistance and guidance in working with the Department of

Defense in this matter?

AAAE wishes to submit the following le gal questions to Mr. Robert Hawkes:

 The FAA generally takes the position, pursuant to Dep’t of the Interior v.

Klamath Water Users Protective Ass’n , 532 U.S. 1, 8, 121 S.Ct. 1060, 1065 (2001), that documents provided to the agency by airport proprietors are not entitled to exemption from disclosure under FOIA. How does the FAA intend to protect confidentiality of program data to promote participation and minimize litigation for the airport industry and any third party participants?

 What level of participation does the FAA expect from third party stakeholders who will no longer be able to protect their data from public records requests when submitted to a public entity such as an airport?

 Will the rulemaking give airports a le gal right to audit tenant records and safety programs?

 FAA acknowledged in the Preamble to the NPRM that it was pursuing other SMS rulemaking and other SMS initiatives. This includes a proposed rule requiring that air carriers certificated under FAR Part 121 develop and implement SMS. Propos ed Section 139.402 would require that airports develop systems for identifying and analyzing hazards and mitigating risks; however, the prop osed rule lacks direction on the potential overlap or conflict among di fferent reporting systems and safety risk management processes. Can the FAA clarify how the proposed airport SMS would be required to function in an environment containing multiple

SMSs?

 Would the airport be in compliance with the rule if a hazard is reported through an air carrier SMS but not the airport SMS? Would the airport be in compliance if the risks associated with an identified hazard are evaluated through an air carrier’s sa fety risk management process rather than the airport’s SRM process?5  Will an airport harbor liability under SMS if a tenant employee is injured in an exclusively leased tenant area?

 Will the FAA share in the liability for unfunded risks identified by an airport SMS?

 How does the FAA anticipate managing differing SRM outcomes as a result of differing tolerances for acce ptable risk throughout the industry?

 How does the FAA propose to protect the Accountable Executive from litigation associated with responsibili ties the FAA is assigning them under

the NPRM?

AAAE wishes to submit the following ques tions related to costs and benefits to

Ms. Nicole Nance:

 How did the FAA estimate SMS implem entation costs when few if any airport SMS programs have been fully implemented in the United States?

 Why didn’t the FAA consider intern ational SMS implementations, where more empirical cost data are available?

 Does the FAA have the available funding to support a six month implementation process?

 The Initial Regulatory Evaluation states, “According to NTSB, insurance claims, and OSHA reports, there were approximately 89 accidents on airports that may have been prevented through a functioning SMS.” The Initial Regulatory Evaluation does not give details regarding these accidents (other than one example). Did each accident occur at a Part 139 certificated airport? Did the FAA (or NTSB) conclude that, in each case, the accident would have been prevented through a functioning airport SMS, or through some other SMS (e.g., air carrier, service provider)? How many accidents did the FAA (or NTSB) determine would have been avoided by a functioning airport SMS?

 How do the results of the FAA’s analysis change if non-movement areas

are excluded from consideration?

 How will FAA prioritize funding for airp orts that have identified hazards that must be mitigated to an accept able level? Will the FAA have the authority to second guess or change th e results of the collaborative process if federal funds are being used? If the FAA chooses not to fund a program as a result of a SRM, does th e agency share in liability?

 How did the FAA derive true industry costs related to implementing a SMS program? Airports and industry stakeh olders will be subject to significant costs associated with increased internal and external training, personnel hours, consultants, audits, softwar e, Safety Risk Assessment (SRA) facilitation and logistics and SRA miti gations as well as recordkeeping.6  How will the FAA ensure adequate gove rnment resources are available to review and approve SMS program submittals, and participate in all SRM processes?

 In the NPRM, the FAA stated that the potential benefits of SMS may

include “reduced insurance costs.” Th e FAA identifies one example of an airport that reduced its insurance costs, without providing any details. The Initial Regulatory Evaluation does not identify reduced insurance costs as a potential quan tified or qualitative benefit of SMS. Does the FAA have any basis, other than the one example, for its finding that SMS may reduce an airp ort’s insurance costs? Has the FAA attempted to quantify this potential benefit?

 Has the FAA considered or investigated whether the insurance industry would reduce insurance premiums for certificated airports when/if the FAA requires SMS for all such airports (as opposed to the one example in which an airport went above and beyond regulatory requirements)?

 Has the FAA considered or investigated whether airports may be exposed to greater liability upon implementi ng SMS that would result in higher insurance premiums?

 How will the FAA make necessary fun ding available to immediately implement corrective actions of identified hazards through this program? (By regulating this program, the FAA wi ll be placing airports in a position where they must satisfactorily mitigate hazards to an acceptable level, and documentation identifying the hazard and planned actions to mitigate the hazard will be made available to the pu blic. Airports will not be able to delay mitigation of known hazards due to increased exposure through this process.)

 Has the FAA identified a funding mech anism to support both the program development and implementation costs , and the ongoing Operations and Maintenance (O&M) costs? Specific ally, will AIP funding be made available for software and data tracking?

 What specific feedback has FAA receiv ed from pilot airports about their implementation and O&M costs to subs tantiate the cost-benefit analysis?

 How will the FAA make necessary fun ding available to immediately implement corrective actions of identified hazards through this program?

Again, thank you for the opportunity to ask these additional questions prior to the close of the comment period. We look fo rward to your response as outlined in the second extension request.

Sincerely,

Melissa Sabatine Vice President, Regulatory Affairs American Association of Airport Executives7 cc: Ms. Catherine M. Lang, Acting Associate Administrator for Airports, FAA ( catherine.m.lang@faa.gov ) Mr. Michael O’Donnell, Manager, FAA Offi ce of Airports Safety & Standards ( michael.o’donnell@faa.gov ) Ms. Keri Spencer, FAA Office of Airports Safety & Standards ( keri.spencer@faa.gov ) Ms. Nicole Nance, Office of Aviation Po licy and Plans (Nicole.nance@faa.gov) Mr. Robert Hawks, Office of the Chief Counsel (rob.hawks@faa.gov)