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3 LEGAL ISSUES RELATED TO IMPLEMENTATION AND OPERATION OF SMS FOR AIRPORTS Peter Kirsch and Nicholas M. Clabbers, Kaplan Kirsch & Rockwell, LLP, Denver, Colorado I. INTRODUCTION Safety Management Systems (SMS) is a broadly applicable, âformal, systematic approach to iden- tify hazards and control risks . . . [which] helps enhance safety by facilitating the development of an organization-wide safety policy and implement- ing methods to proactively identify and mitigate hazards.â1 The Federal Aviation Administration (FAA) has proposed regulations that would require airport sponsors in the United States to implement SMS, and while implementing SMS has the poten- tial to increase safety at airports, considerable con- cerns have been raised about the possible legal liabilities for airport sponsors that may result from implementation.2 However, to date there has been little study of the actual legal issues encountered by sponsors that have already begun to implement SMS. The objective of this Legal Research Digest is to begin to fill that gap by identifying and analyz- ing legal issues that have resulted from, or are related to, the implementation or operation of SMS programs at those airports that have voluntarily begun implementation. This Legal Research Digest is divided into five sections beyond this Introduction. Section II pro- vides an overview and background of SMS through the lenses of the International Civil Aviation Orga- nization (ICAO); FAA pilot programs, rulemaking processes, and guidance materials; and previous Airport Cooperative Research Program (ACRP) 1 Press Release, FAA, Fact SheetâOffice of Airports Safety Management System Efforts (July 12, 2016), https://www.faa.gov/news/fact_sheets/news_story. cfm?newsId=20554. 2 For simplicity, throughout this Legal Research Digest we use the term âairport sponsorâ to refer to the entity that will be charged with implementing SMS under FAAâs proposed rule because that term is most commonly used to describe the entity that owns and operates a federally obligated, public-use airport. It should be noted that the FAAâs proposed rule would impose requirements on âcer- tificate holdersâ under 14 C.F.R. Part 139, and while the airport sponsor is not always the certificate holder, it is essentially the same for the purposes of this publication. Other terms, such as âairport proprietorâ or âairport ownerâ are also used almost interchangeably in different contexts in this industry but for simplicity, we avoid those terms. publications. It then identifies and explains five potential requirements of the FAA proposed rule that, based on previous research, appear most likely to pose legal challenges for airport sponsors imple- menting SMS: (1) the development of an SMS Man- ual, (2) the designation of an accountable executive, (3) the maintenance of a confidential hazard report- ing system, (4) the extension of the sponsorâs over- sight responsibility to the non-movement areas, and (5) new training requirements. Section III analyzes why those five SMS require- ments could theoretically pose legal challenges for sponsors. Specifically, it describes possible changes to a sponsorâs negligence liability and standard of care because of their increased responsibility on the non-movement areas, but also discusses the likeli- hood that such concerns could be mitigated by state governmental immunity laws. It then assesses potential data protection issues associated with the maintenance of confidential hazard reporting sys- tems. Finally, it reviews the potential legal conse- quences of SMS for an airport sponsorâs existing contracts and other documents. Using these potential legal issues as background, Section IV briefly describes the survey methodology used in the preparation of this Legal Research Digest. This includes the identification of likely sur- vey participants, the methods of information collec- tion, and an overview of the types of questions that were asked of survey participants. Section V is a discussion of the results of the sur- veys, which generally found few airport sponsors reporting significant legal problems associated with the early implementation of SMS. Section V reviews each individual potential legal issue from Section III, and finds that while some sponsors reported iso- lated legal problems such as freedom of information requests, most sponsors reported that government immunity statutes in their respective states oper- ated to protect them from otherwise troubling liabil- ity issues. In addition, it reviews sponsor-reported benefits of SMS implementation related to reduc- tion in insurance costs. Overall, Section V describes how sponsors most often reported that uncertainty around the scope of any final SMS rule is delaying SMS implementation and preventing full-scale
