April 5, 2011

To: Docket Operations M-30 U. S. Department of Transportation 1200 New Jersey Avenue S.E. West Building – Ground Floor Washington D.C. 20590

Sent via: www.regulations.gov

Subject: Clarifying Questions - 14 CFR Pa rt 139 SMS for Certificated Airports (NPRM Docket Number FAA-2010-0997)

The City of Austin, Department of Aviation respectfully submits the following questions to clarify the FAA intent in the above Notice of Proposed Rule Making case. Response to these questions would assist us in offering our comments prior to July 5,

2011.

Benefits (Cost/Benefit Clarification)

The NPRM refers to the financial benefits associated with the implementation of a Safety Management System such as reduced insurance benefits but does not quantify the upside opportunity nor provide additional information on the downside cost. In the Federal Register, Volume 75, No. 194, dated October 7, 2010, page 62010 the

document states that overtime the identif ication of previously unknown hazards and risks “should prevent accidents and incidents, thereby reducing the direct and indirect costs and risks of airport opera tions.” Can the FAA provide data that substantiates the claim? For example, what percent of an insurance premium has been saved by implementing the SMS program? On page 62018, SMS Document (Initial Burden) attempts to quantify the annual additional r ecord-keeping burden th at contributes to downside cost. However, the cost of Safety Risk Analysis directed at determining risk mitigation is not accounted for. What does the FAA estimate the cost of labor to accomplish Safety Risk Analysis?

Regulation of the Non-Movement Area (Technical Clarification) On the following page of the NPRM, the FAA extends the scope of Part 139 to the nonMovement Areas. In another NPRM, the F AA addresses non-movement area training programs. Is it the FAA intent to continue to expand its regulatory authority into the non-movement area and setting other sta ndards beyond the application of the SMS program?



# City of Austin

Aviation Department Austin-Bergstrom International Airport

3600 Presidential Blvd., Ste. 411, Austin, Texas 78719 512/530-7550 Fax: 512/530-7561 airport.operations @ci.austin.tx.usOn page 62011, in the paragraphs relating to Flexibility, “the FAA proposes that amending 139.203 to require the FAA approved ACM contain the policies and procedures for development, implementa tion, operation and maintenance of the certificate holder’s SMS.” In 14 CFR Part 139 paragraph 139.203 is a table of Required Airport Certification Manual Elements. The tabl e calls out the requirements to maintain or to describe specific elements. It does not specifically talk to the specifics of procedures for development, implemen tation, operation and maintenance of those elements. If it is a requirement of SMS to incorporate an SMS within the next few months, why is it not appropria te to simply state as an element in the table the requirement to maintain a Safety Manageme nt System? (Either you have an SMS or you don’t.)

On the same page, in the discussion of Minimum Elements of SMS , it is suggested that the SMS is “scalable to the size and complexity of the certificate holder.” It is clear that it is not the intent that an airport of smaller size or less complexity could leave out

certain elements of the SMS. How then is th e program scalable? Further, if the SMS is scalable, why can’t the program be phased in as opposed to implemented all at once (for example, implement for airport owner employees first and then expand to tenants and other non-movement area users)?

Safety Policy (Legal Clarification) On page 62011, the NPRM requires the appointment of a accountable manager “who can influence safety-related decisions and has authority to approve operational decisions and has authority to approve ope rational decision and changes because an effective SMS requires high level manage ment involvement in safety decisionmaking.” The NPRM goes on to propose an international standard for an accountable

executive as “an individual with ultimate responsibility and accountability, full control of the human and financial resources require d to maintain SMS, and final authority over operations and safety issues.” Can the FAA offer suggestions as to how this could be achieved at a publically owned airpor t whose budget and human resource policies are controlled by publically elected offici als such as the mayor and council?

On page 62012, the NPRM mandates that the SMS Policy Statement include “the encouragement for employees to report safety is sues without fear of reprisal.” Does the

FAA intend that the SMS be instituted to exempt employees from reprisal for conduct

that was reckless or an intentional violation of a standard or regulation? Is it the intent

of the FAA to hold the accountable execu tive of a publically owned and operated airport responsible for changing an employ ee accountability policy of the owner which may mandate certain penalties be assessed fo r a particular behavi or or consequence thereof?

Safety Risk Management (SRM) (Technical/Legal Clarification) SRM methodology requires a detailed proce ss of hazard identification, analysis of hazards and mitigation process. It implies a high standard of rigor in the use of five

steps required by the FAA forcing the “certificate holder to use SRM processes to analyze risk associated with hazards discove red during daily operat ions and changes to operations”. Description of the system, hazard identification, analysis of risk associated with the hazard, assessing the risk association with the hazard and mitigation steps may not always be necessary and may require a lengthy process that prevents amore immediate hazard remediation. Wh ile a Safety Risk Assessment may be appropriate when dealing with most complex issues that involve several stakeholders, it may be inappropriate in addres sing simple challenges. Is it the FAA’s intent to employ this process to address and document every hazard? The rigor necessary to comply with the required steps and their documentation will likely require a large amount of labor hours not readily available at most airports. Furthermor e, is it the intent that the

accountable executive be aware of and a pprove all efforts to address a hazard observation or report? The proscribed deta iled process and mitigation approval may be contraindicative of the development of a cultu re that is focused on incorporating safety and acting quickly to remediate hazards

.

Safety Assurance (Technical Clarification/ Legal Clarification) On page 62015, of the NPRM, the first senten ce under Safety Assurance, states, “this proposal would require a certificate holder to ensure safety risk mitigations developed through the airport’s SRM process are adequa te and the airport’s SMS is functioning effectively. The sentence strongly sugge sts that the FAA intends to go beyond just verifying whether a SMS is in place and e ffective. Does the FAA intend to develop specific criteria by which it would determine whether specific risk mitigations are adequate?

On page 62016 of the NPRM in its discussi on of Safety Assurance “the FAA proposes that airport develop a confidential ha zard reporting system. ICAO’s SMS model envisions a non-punitve reporting system. Based on information obtained during the pilot studies, a U.S airport may be unab le to prevent punishment of non-airport employees (for example, tenant employees). Therefore, the FAA has concluded that requiring a confidential hazard reporting system will protect the reporter’s identity and achieve the goal of protection.” While c onfidentiality of a ha zard reporting system would certainly support a more open environment for reporting hazards, particularly for employees reporting on their own actions, overcoming current federal Freedom of Information and state and local Open Records Act requirements is difficult. The concept of confidential reporti ng is important not just for employees of the airport but for incorporating other tenant and airline employees choosing to disclose information within the SMS. Is it the expectation of th e FAA that airports seek to exempt voluntary hazard reporting disclosures from these curren t legal provisions? Will the FAA seek to exempt such disclosure requirements from the Freedom of Information Act at the

federal level?

Safety Promotion (Technical Clarification) On page 62016 of the NPRM, the FAA proposes that SMS training requirement would apply to airport employees with access to the movement and non-movement areas. Airlines are currently in th e process of adopting SMS as part of 14 CFR 121 change. How will the SMS 14 CFR Part 139 change interface with 14 CFR 121?

Proposed Implementation Plan Requirements (Technical Clarification) On page 62017 of the NPRM, the FAA implemen tation schedule requires that a manual and implementation plan be developed within 6 to 9 months and the implementation of the SMS program be completed within 18 to 24 months. Beyond training, Safety Promotion and Safety Risk Management depend on the active involvement and expertise of stakeholders that regularly access the movement and non-movement areas.In order to encourage the part icipation of these users, it may be necessary to change leasing agreements to ensure that our airport, airline FBO and other employees participate not just by attending training and submitting hazard reports also but working on Safety Risk Assessments. Would the F AA consider implementing SMS for airport employees first and, once the system is running smoothly for a year, incorporating airport employees after the SMS for tenants and airlines at a la ter date?

In addition, the actual implementation a nd operation of the SMS program requires additional operating money. Depending on an airport budget process, the funding of additional labor necessary may need to be ma de up to one year in advance. Would the FAA consider a phased implementation us ing current budgeted available labor hours until additional positions could be funded and filled?

We look forward to the FAA’s response to the above questions and a productive exchange of thoughts prior to the final ru le making and implementation.

Sincerely,

Patti Edwards Chief Operating Officer

cc: Keri Spencer, Office of Airport Safety and Standards, FAA keri.spencer@faa.gov Robert Hawks, Office of the Chief Counsel, FAA rob.hawks@faa.gov Nicole Nance, Office of Avia tion Policy and Plans, FAA nicole.nance@faa.gov