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AIRPORT COOPERATIVE RESEARCH PROGRAM Sponsored by the Federal Aviation Administration November 2018 Legal Research Digest 36 LEGAL ISSUES RELATED TO IMPLEMENTATION AND OPERATION OF SMS FOR AIRPORTS This digest was prepared under ACRP Project 11-01, âLegal Aspects of Airport Programs,â for which the Transportation Research Board (TRB) is the agency coordinating the research. Under Topic 08-01, this digest was prepared by Peter Kirsch and Nicholas M. Clabbers, Kaplan Kirsch & Rockwell, LLP, Denver, Colorado. Responsible Senior Program Officer: Marci A. Greenberger Background There are over 4,000 airports in the country and most of these airports are owned by governments. A 2003 survey conducted by Airports Council InternationalâNorth America concluded that city ownership accounts for 38 percent, followed by regional airports at 25 percent, sin- gle county at 17 percent, and multi-jurisdictional at 9 per- cent. Primary legal services to these airports are, in most cases, provided by municipal, county, and state attorneys. Research reports and summaries produced by the Air- port Continuing Legal Studies Project and published as ACRP Legal Research Digests are developed to assist these attorneys seeking to deal with the myriad of legal problems encountered during airport development and op- erations. Such substantive areas as eminent domain, envi- ronmental concerns, leasing, contracting, security, insur- ance, civil rights, and tort liability present cutting-edge legal issues where research is useful and indeed needed. Airport legal research, when conducted through the TRBâs legal studies process, either collects primary data that usu- ally are not available elsewhere or performs analysis of existing literature. Foreword Implementation of Safety Management Systems (SMS) in the airport and aviation sector has been an ongoing pro- cess since the early 2000s in the United States. In 2007, the FAA began a pilot program to test implementation of SMS for selected U.S. airports. Since that time, the FAA released a Notice to Proposed Rule Making (NPRM) and then a supplemental NPRM, each time seeking industry input. Since that time, ACRP has produced nine publica- tions related to SMS, including ACRP LRD 19: Legal Is- sues Related to Developing Safety Management Systems and Safety Risk Management at U.S. Airports, which identified legal issues related to developing an SMS pro- gram at U.S. airports. This legal digest goes beyond the legal issues that arise in developing a SMS program and focuses on the legal issues that are encountered in the operation of SMS, relying upon data from airports that have voluntarily im- plemented a SMS program. While the panel had selected this project in October 2014, it delayed the project until October 2016 to allow more airport sponsors to develop SMS programs that could be studied. However, as noted in the results of the survey, as of 2018 few airports have implemented SMS and even fewer have reported legal problems with early adoption. The panel, however, de- cided to continue on with this project nonetheless because the research adds to the body of knowledge pertaining to the legal issues of implementation and operation of SMS at U.S. certificated airports. Readers will find a review of potential legal issues and an in-depth analysis of those identified issues and may be surprised to learn of the benefits experienced by airports that have adopted a SMS program.
CONTENTS I. Introduction, 3 II. Evolution and Current Status of SMS Requirements for Airports, 4 A. ICAO Initiatives, 4 B. Initial FAA GuidanceâAdvisory Circular 150/5200-37, 5 C. FAA Order 5200.11, 5 D. FAA Pilot Programs, 6 E. Context for Airport Implementation of SMS, 6 F. Previous ACRP Publications, 7 G. The Proposed Rule, 7 III. Thematic Legal and Practical Issues Presented by SMS, 10 A. Fundamental Shift in Legal Responsibility, 11 B. Liability and SMS, 11 C. Collection and Protection of Safety Data and Documents, 14 D. Existing Contractual Relationships and Governing Documents, 18 IV. Introduction to Survey and Methodology, 19 A. Purpose of Survey, 19 B. Methodology, 20 C. Identification of Sponsors and Specific Individuals to Be Interviewed, 20 D. Themes of Interview Questions, 20 V. Presentation and Discussion of Survey Results, 21 A. Demographics of Survey Participants, 21 B. Overall Findings, 21 C. Analysis of Previously Identified Legal Issues,22 D. An Overarching Issue: Regulatory Uncertainty, 25 VI. Conclusions, Recommendations, and Areas for Further Study, 26