Legal Issues Related to Implementation and Operation of SMS for Airports (2018)

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4 appear appropriate.”5 These provisions do not affir- matively obligate the United States to impose any particular set of safety or SMS regulations on air- port sponsors, but rather to strive for international uniformity based on standards set forth by ICAO. By that same token, it is important to recognize that ICAO does not itself mandate any specific require- ments directly for airport sponsors, but rather pub- lishes policies and procedures for its member states to use as guidelines for adopting regulations for operators under their jurisdiction. Under this gen- eral framework, ICAO has developed a series of standards for airport SMS over the last two decades. The recently published ICAO Global Aviation Safety Plan defines SMS as “[a] systematic approach to managing safety, including the necessary organi- zational structures, accountability, responsibilities, policies and procedures.”6 SMS for airports (in ICAO parlance known as “aerodromes”) has been dis- cussed in a number of different ICAO publications over the years.7 Annex 19 to the Convention on International Civil Aviation, first published in 2013 and updated in 2016, consolidated much of this dis- cussion into one document which provides interna- tional standards and guidance for member states in designing a safety management system framework for airport operators within their jurisdiction.8 ICAO’s SMS provisions are based upon the “four pillars” of SMS: (1) safety policy, (2) safety promotion, (3) safety risk management (SRM), and (4) safety assurance. Under the ICAO model, each of these four pillars is key to a successful SMS program. A full analysis of the distinctions between, and components of, the four pillars is beyond the scope of this Legal Research Digest.9 In brief, safety policy deals with the initial steps of SMS implementation: preparing a safety policy and defining a safety-oriented organiza- tional structure. Safety promotion “is achieved by establishing a culture of safety, training employees in safety principles, and allowing open communication of safety issues.”10 Safety risk management involves 5 Id. 6 InternatIonal CIvIl avIatIon organIzatIon, 2017-2019, global avIatIon Safety Plan DoC 10004 (x) (2d ed. 2016). 7 InternatIonal CIvIl avIatIon organIzatIon, ICao Safety ManageMent Manual DoC 9859 (2009); Interna- tIonal CIvIl avIatIon organIzatIon, annex 14 to CICa, aeroDroMe DeSIgn anD oPeratIonS (2016); ICAO, annex 19 to CICa Safety ManageMent (2016). See also Duane a. luDwIg et al., aIrPort CooPeratIve reSearCh PrograM, rePort 1: Safety ManageMent SySteMS for aIrPortS, vol- uMe 1: overvIew (2007). 8 Annex 19, supra note 7. 9 For a full description of the four pillars, see luDwIg et al., supra note 7. 10 luDwIg et al., supra note 7, at 7. execution of program aspects that might otherwise trigger legal issues. Finally, Section VI concludes this Legal Research Digest by summarizing the results of the survey and offering conclusions and recommendations based on those results. In particular, it recommends that air- port sponsors continue to implement SMS in the face of the uncertainty surrounding the final rule, notwithstanding the small number of legal issues that have already been encountered. II. EVOLUTION AND CURRENT STATUS OF SMS REQUIREMENTS FOR AIRPORTS SMS for airports has a long history and complex procedural posture both internationally and in the United States. This section briefly reviews the ori- gin and context of SMS for airports in the United States, from its beginning as a concept advanced by ICAO and continuing through to the proposed rule put forth by FAA. In addition, this section reviews the various guidance documents and publications that have been written on these issues, with a par- ticular focus on those materials that touch upon the legal issues presented by SMS implementation at airports. This section concludes by identifying and reviewing the elements of the proposed rule and SMS implementation that are most likely to cause legal issues for implementing sponsors. A. ICAO Initiatives The concept of SMS for airport operators origi- nated with ICAO, of which the United States is a member state.3 As it relates to potential airport SMS, the U.S. government’s obligations under the Ninth Edition of the International Convention on Civil Aviation (ICAO’s current governing document) are relatively general: Each contracting State undertakes to collaborate in secur- ing the highest practicable degree of uniformity in regula- tions, standards, procedures, and organization in relation to aircraft, personnel, airways and auxiliary services in all matters in which such uniformity will facilitate and improve air navigation.4 For its part, ICAO is obligated to adopt and periodi- cally amend “international standards and recom- mended practices and procedures dealing with . . . matters concerned with the safety, regularity, and efficiency of air navigation as may from time to time 3 ICAO is a specialized entity of the United Nations that officially came into being in 1947. Convention on Interna- tional Civil Aviation (CICA), Doc 7300, Dec. 7, 1944, https:// www.icao.int/publications/Pages/doc7300.aspx. 4 Convention on International Civil Aviation, supra note 3, art. 37.

5 providers like airports.”15 FAA again noted its views on the ICAO standards, stating that it “supports harmonization with international standards and has worked to make FAA aviation safety regulations consistent with ICAO standards and recommended practices.”16 While the draft updated Advisory Cir- cular has more detailed and precise recommenda- tions than its predecessor, it has never been finalized or implemented by FAA, and contains a placeholder reference to the future Federal Register notice on SMS regulatory requirements,17 suggesting that FAA may wait to finalize the revisions until the rule- making process is complete. C. FAA Order 5200.11 While no formal rule has been promulgated, FAA has taken significant steps to implement SMS within the agency. The result has been that airport sponsors participate in implementation of some aspects of SMS even if they themselves have not fully implemented SMS within their own organiza- tion. The most important document in this context is FAA Order 5200.11, FAA Airports (ARP) Safety Management System, which “provides the basis for implementing SMS within [FAA’s Office of Airports (ARP)],” and “describes the roles and responsibili- ties of ARP management and staff as well as other [FAA lines of business] that will contribute to the ARP SMS.”18 Order 5200.11 primarily imposes obli- gations on FAA itself, requiring ARP to conduct Safety Risk Management (SRM) analyses and other elements of SMS when airport sponsors request approval for federally assisted development proj- ects, airport layout plan (ALP) amendments, and certain non-construction redesignations (e.g., air- field pavement markings), among other actions.19 However, airport sponsors may need to become involved in FAA’s internal SMS process when they request agency approval for such projects or amended documents. For instance, if an airport sponsor seeks to amend or alter its ALP, it must get approval for the change from FAA, and such an 15 faa, Draft aDvISory CIrCular 150/5200-37A, Safety ManageMent SySteMS for aIrPortS, at i (2016). 16 Id. 17 See id. 18 faa orDer 5200.11, faa aIrPortS (arP) Safety ManageMent SySteM, at i (2010). See also faa orDer 8040.4B, Safety rISk ManageMent PolICy (2017) (outlin- ing FAA’s internal requirements for how to conduct Safety Risk Management). 19 FAA orDer 5200.11, supra note 18, ¶ 4-3. An ALP is a graphical map showing the existing and planned facilities and land use designations, among other things, at a given airport. See faa, aDvISory CIrCular 150/5300-13a, aIr- Port DeSIgn ¶ 102.h (2012). hazard identification, risk assessment, and risk miti- gation and tracking.11 Finally, safety assurance is intended to “provide confidence that the organization is meeting or exceeding its safety objectives” through “internal audits, external audits, and corrective action.”12 ICAO only develops policies and procedures for its member states, which are stated generally to apply to a wide international audience, and provides guidance on what operational steps a member state should include when designing a regulatory frame- work for airport operators. It generally does not address the unique legal issues that arise with implementation in each member state, including those associated with implementation in the United States. B. Initial FAA Guidance—Advisory Circular 150/5200-37 In 2007, FAA acknowledged the ICAO standards in its publication of Advisory Circular 150/5200-37, Introduction to Safety Management Systems (SMS) for Airport Operators, the first agency guidance material specific to airport sponsors. The Advisory Circular is a high-level policy document that broadly describes the four pillars of SMS (based upon the same ICAO four pillars) but does not set forth any specific requirements for airport operators. Perhaps recognizing that achieving all of the ICAO stan- dards would be difficult in the context of the U.S. legal system, FAA does not commit to conforming any requirements to the ICAO standards, stating that the agency “intends to implement the use of SMS at U.S. airports to meet the intent of the ICAO standard in a way that complements existing air- port safety regulations in 14 CFR Part 139.”13 While it is explicitly a guidance document with recom- mended (not required) practices, the Advisory Cir- cular does announce the opening of a rulemaking docket to explore the possibility of a formal regula- tion for SMS at Part 139 airports.14 In mid-2016, FAA released a draft update to Advi- sory Circular 150/5200-37, explaining that ICAO’s revisions to Annex 14 and consolidation of SMS requirements in Annex 19 “signaled the important role governments play in managing safety at the country level in coordination with individual service 11 Id. at 8. 12 Id. at 10. 13 faa, aDvISory CIrCular 150/5200-37, IntroDuCtIon to Safety ManageMent SySteMS (SMS) for aIrPort oPera- torS at i (2007) (emphasis added). 14 Id.

6 D. FAA Pilot Programs Beginning in April 2007, FAA piloted SMS devel- opment at a number of certificated airports in two phases, first focusing on larger airports and then on small-to-medium airports.26 According to FAA, “[t]he Pilot Studies were intended to allow the FAA and individual airports to gather data and gain experi- ence through onsite development and implementa- tion of SMS.”27 The pilot studies based the SMS implementation on the general guidelines found in Advisory Circular 150/5200-37.28 In May 2011, FAA published the results of the pilot studies, which included data from 31 airports of vary- ing sizes.29 FAA acknowledged that the results of the pilot studies could not be directly translated to the requirements in the draft rulemaking because the two were developing in parallel.30 Participating air- port sponsors did, however, identify uncertainties and concerns with certain legal issues that have come to be larger parts of the discussion around the legal aspects of SMS: the liability of the accountable executive,31 safety data protection,32 and implement- ing SMS on the non-movement areas.33 E. Context for Airport Implementation of SMS The application of SMS to airports is far from the only use of the concept, and it is important to under- stand how airport SMS fits into the context of SMS in other segments of the aviation industry. ICAO has adopted SMS requirements for other sectors of the aviation industry, including operators of com- mercial aircraft, aircraft maintenance organiza- tions, and air traffic services.34 FAA has formally enacted SMS regulations for 14 CFR Part 121 air carriers,35 and has adopted policies implementing and coordinating SMS internally for all of the 5200.11, SRM was to be applicable to all small, medium, and large hub airports beginning June 1, 2011. 26 Safety Management System for Certificated Airports, 75 Fed. Reg. 62,008, 62,010 (Oct. 7, 2010). 27 FAA, feDeral avIatIon aDMInIStratIon aIrPort Safety ManageMent SySteMS (SMS) PIlot StuDIeS 5 (2011). 28 Safety Management System for Certificated Airports, 75 Fed. Reg. at 62,010. 29 PIlot StuDIeS, supra note 27, at 5, 9. 30 Id.at 5. 31 Id. at 14. 32 Id. at 26, 28. 33 Id. at 34. 34 See ICAO, annex 6 to CICa, oPeratIon of aIrCraft pt. I, chs. 3 (“General”), 8 (“Aeroplane Maintenance”) (2010); id. pt. III, ch. 1 (“Commercial Air Transport”); ICAO, annex 11 to CICa, aIr traffIC ServICeS (2001). 35 Safety Management Systems for Domestic, Flag, and Supplemental Operations Certificate Holders, 80 Fed. Reg. 1307 (Jan. 8, 2015). approval request triggers FAA’s internal SMS responsibilities under Order 5200.11.20 Although the FAA is the decision maker in approval of ALP changes, the Order outlines responsibilities for air- port sponsors in this context, such as the submission of data and implementation of risk mitigation strat- egies identified through FAA’s internal review pro- cess.21 Though the Order itself is not a regulation and compliance is not therefore legally mandatory for airport sponsors, as a practical matter, FAA staff strongly encourages sponsors’ cooperation and assis- tance if they expect timely and responsive FAA approval where the Order requires an SMS review. Like comparable FAA orders, Order 5200.11 techni- cally only applies to FAA staff and only purports to implement SMS within the FAA Airports Division with respect to agency actions. Those actions include approval of sponsors’ actions where FAA approval is needed. Also as with comparable orders, sponsors correctly perceive that their compliance with the role set forth in Order 5200.11 is essential if they expect FAA cooperation. The FAA Office of Airports Safety Management System (SMS) Desk Reference portrays the sponsor’s role under Order 5200.11 as broadly collaborative and as a resource for the agency to use during its internal process.22 The Desk Reference also lists a number of actions that spon- sors are expected to take with respect to the Airports Division SMS process, including participation in panels and implementing mitigation measures iden- tified through the panel process.23 FAA’s Standard Operating Procedures outline similar sponsor obli- gations.24 Sponsors have reported differences among FAA offices in the role expected of sponsors, but gen- erally, FAA expects substantive sponsor involve- ment in SMS review. The applicability and significance of FAA Order 5200.11 for airport sponsors is still evolving. FAA implementation of the Order and involvement of sponsors has been gradually phased in and applica- ble effective dates have been previously extended.25 20 FAA orDer 5200.11, supra note 18, ¶ 4-3b. 21 Id. ¶ 7-10. 22 faa offICe of aIrPortS Safety ManageMent SySteM (SMS) DeSk referenCe ¶ 4.3.2 (2012) (“The airport spon- sor plays a pivotal role in the ARP SMS by providing infor- mation to support the SRM Safety Assessment.”). 23 Id. 24 FAA, ARP SOP 4.0 Safety rISk ManageMent (SrM) unDer the faa offICe of aIrPortS Safety ManageMent SySteM (SMS) ¶¶ 2.3.4.2, 2.5.4.2 (2014). 25 See faa, orDer 5200.11, change 3, faa aIrPortS (arP) Safety ManageMent SySteM (2014) (setting the new applicability date for FAA to use SRM at small hub air- ports as June 1, 2016). In the original iteration of Order

7 Research Digest, but it is important to note that (1) Bannard’s report deals with theoretical legal issues and does not reflect any study of actual legal issues encountered by airports implementing SMS, and (2) FAA had not yet published the supplemental notice of proposed rulemaking (SNPRM) at the time that Legal Research Digest 19 was published in 2013. One more recent ACRP publication discusses one of the specific legal issues associated with imple- mentation of SMS and provides some insight into experiences of airport sponsors. Synthesis 58: Safety Reporting Systems at Airports summarized the rel- evant legal issues associated with safety reporting systems and also presented data on airport spon- sors’ experiences with those legal issues.42 The rele- vant results from Synthesis 58 are discussed below. Other ACRP publications have discussed more spe- cific aspects of SMS, but none with a particular focus on legal issues that are relevant here.43 G. The Proposed Rule 1. Historical and Procedural Background of the Proposed Rule The proposed regulations for SMS at commercial service airports have been released in two parts: an initial FAA proposal and then a later revision to that proposal. Together, these two FAA releases make up the “proposed rule.”44 First, in October 2010, FAA published a Notice of Proposed Rulemaking (NPRM) and invited comments from interested parties.45 The NPRM generated considerable comment from a variety of sources.46 FAA also accepted and responded to a number of clarifying questions, including some regarding tort liability, data protection, and the 42 Joanne M. lanDry & DavID y. bannarD, aIrPort CooP- eratIve reSearCh PrograM, SyntheSIS 58: Safety rePort- Ing SySteMS at aIrPortS (2014). 43 See, e.g., kenneth neubauer et al., aIrPort CooPera- tIve reSearCh PrograM rePort 131: a guIDebook for Safety rISk ManageMent for aIrPortS (2015); ruSSell P. DefuSCo et al., aIrPort CooPeratIve reSearCh PrograM rePort 145: aPPlyIng an SMS aPProaCh to wIlDlIfe haz- arD ManageMent (2015); Manuel ayreS, Jr. & allen Parra, aIrPort CooPeratIve reSearCh PrograM, SyntheSIS 71: aIr- Port Safety rISk ManageMent Panel aCtIvItIeS anD out- CoMeS (2016). 44 Throughout this publication, the term “proposed rule” refers to the aggregate proposed rules as presented in the NPRM and SNPRM. 45 Safety Management System for Certificated Airports, 75 Fed. Reg. 62,008 (Oct. 7, 2010). 46 See Safety Management System for Certificated Air- ports; Extension of Comment Period, 76 Fed. Reg. 12,300 (Mar. 7, 2011) (extending comment deadline to July 5, 2011, and noting that comment deadline had already been extended once before). agency’s lines of business.36 FAA has also encour- aged voluntary SMS implementation for non-Part 121 operators, maintenance, repair, and overhaul companies, and training organizations.37 F. Previous ACRP Publications The Airport Cooperative Research Program (ACRP) has commissioned the publication of a num- ber of studies on SMS, beginning in 2007 shortly after the FAA’s release of Advisory Circular 150/5200-37. The first of those publications, Report 1: Safety Management Systems for Airports, Volume 1: Overview, provided a broad overview of SMS, the four pillars of an SMS program, ICAO materials on SMS for airports, and general recommendations for SMS implementation at U.S. airports.38 Two years later, that Report was updated with Volume 2: Guidebook, a more comprehensive and specific pub- lication designed to assist airport sponsors in pre- paring to implement SMS. The Guidebook discussed several potential legal implications of SMS and rec- ommended that legal counsel be part of the plan- ning process for a confidential hazard reporting system, but did not analyze these issues in detail.39 Following the completion of the FAA pilot studies, ACRP released a summary, analysis, and lessons learned from the results of the pilot studies.40 How- ever, that publication also did not discuss legal issues in any significant way.41 For the purposes of this Legal Research Digest, the most relevant previous ACRP publication is David Y. Bannard’s Legal Research Digest 19: Legal Issues Related to Developing Safety Management Systems and Safety Risk Management at U.S. Air- ports, which discusses many of the potential legal issues that could arise in the context of implement- ing the proposed SMS regulations. This publication is analyzed in more detail in Section III of this Legal 36 FAA, orDer 8000.369B, Safety ManageMent SySteM (2016). 37 FAA, aDvISory CIrCular 120-92b, Safety Manage- Ment SySteMS for avIatIon ServICe ProvIDerS (2015). 38 luDwIg et al., supra note 7. 39 “Legal counsel is appropriate when establishing a reporting system that is intended to be confidential and/or non-punitive because the system needs to be compliant with applicable law.” Manuel ayreS, Jr., et al., aIrPort CooPeratIve reSearCh PrograM, rePort 1: Safety Manage- Ment SySteMS for aIrPortS, voluMe 2: guIDebook 20 (2009). 40 Joanne lanDry, aIrPort CooPeratIve reSearCh Pro- graM, SyntheSIS 37: leSSonS learneD froM aIrPort Safety ManageMent SySteMS PIlot StuDIeS 37 (2012). 41 Id. at 22 (noting that only three pilot study airports involved their legal departments in the implementation process and providing no discussion of legal issues encountered).

8 a. SMS Implementation Plan and Manual Under the NPRM, FAA proposed that airport spon- sors would be required to submit an SMS implementa- tion plan and SMS Manual to FAA for approval.56 The implementation plan would be required to “accurately describe[] how the airport will meet the requirements . . . and provide[] timeframes for implementing the vari- ous SMS components and elements within the airport’s organization and operations.”57 Under the NPRM, the SMS Manual (or a revised Airport Compliance Manual in certain specific circumstances) must “describe [the sponsor’s] compliance with the [SMS] requirements,”58 and the Manual must be submitted to FAA for approval in accordance with the sponsor’s implementation plan.59 The precise parameters of FAA review and approval were revised between the NPRM and SNPRM to pro- vide that only the implementation plan must be for- mally “approved” by FAA, whereas the SMS Manual must be submitted to FAA for the agency’s “acceptance.”60 b. Accountable Executive The proposed rule would require sponsors to des- ignate an “accountable executive” who would ulti- mately be responsible for SMS implementation and compliance at the airport.61 The formal role and defi- nition of the “accountable executive” was the subject 56 Safety Management System for Certificated Airports, 75 Fed. Reg. at 62,017. 57 Id. 58 Id. at 62,022. 59 Id. at 62,023. 60 Safety Management System for Certificated Airports, 81 Fed. Reg. at 45,909. The distinction between formal FAA approval and mere acceptance has substantive importance in other contexts (e.g., the agency approves a sponsor’s ALP; the agency only accepts an airport spon- sor’s master plan or airport noise exposure map), and that distinction in this instance could have legal significance as well. One key legal issue with respect to the SMS Man- ual and the implementation plan concerns the extent to which those documents will have the effect of formalizing a standard of care, as discussed in detail below. If the agency formally approves those documents, that may con- stitute the federal government’s concurrence that the sub- stance of the SMS documents (including the standard of care that is implicit therein) is appropriate. If, however, the agency only accepts those documents, consistent with the distinctions in other contexts, the agency may only be confirming the procedural conformity of the sponsor’s sub- mission with the appropriate SMS regulations without either an explicit or implicit concurrence in the substance of the documents themselves. Any final rule is likely to include an FAA approval component of some kind, but the exact parameters may change from the SNPRM to any final rule, and so the effect of this distinction is discussed in this Legal Research Digest where it may be relevant to the issues. 61 Safety Management System for Certificated Airports, 75 Fed. Reg. at 62,011. liability of the accountable executive.47 In December 2012, FAA announced that it had decided to publish a Supplemental Notice of Proposed Rulemaking (SNPRM) before issuing a final rule.48 Nearly four years later, FAA published the prom- ised SNPRM.49 The SNPRM addressed the com- ments received by FAA in response to the NPRMand in some cases made changes to the proposed rule in response to those comments. In particular, FAA reduced the applicability of the proposed rule so that it would apply to only a subset of commercial service (Part 139) airports: small, medium, and large hub airports and certificated “international airports” of any size, which FAA stated was more consistent with “the intent of ICAO Annex 14.”50 The SNPRM also allowed for a longer implementation time line.51 FAA also slightly adjusted the definition of “accountable executive.”52 In addition, FAA revised the parameters of the sponsor documents requiring FAA “approval” and “acceptance.”53 Although the comment period for the SNPRM closed near the end of 2016, as of the publication of this Legal Research Digest there have been no formal indications of when FAA is expected to publish the final SMS rule.54 2. Relevant Requirements of Proposed Rulemaking Although the FAA has not issued a final rule, it is still appropriate to examine the requirements and elements that, if included in a final rule, could present areas for legal concern.55 47 FAA, FAA reSPonSeS to ClarIfyIng QueStIonS about ProPoSeD ruleMakIng for Safety ManageMent SySteM for CertIfICateD aIrPortS 29 (2011). 48 FAA, SMS StateMent (2013). 49 Safety Management System for Certificated Airports, 81 Fed. Reg. 45,871 (July 14, 2016). 50 Id. at 45,875. 51 Peter J. kIrSCh, faa ProPoSalS for Safety Manage- Ment SySteMS 2 (2016), https://www.kaplankirsch.com/Peo- ple/portalresource/SMS_Briefing_Paper_for_SNPRM.pdf. 52 Id. 53 Safety Management System for Certificated Airports, 81 Fed. Reg. at 45,880-81. 54 In addition, it is unclear how or whether the publica- tion of the SMS rule will be impacted by the recently issued Executive Order 13711, which mandates that “for every one new regulation issued, at least two prior regula- tions be identified for elimination.” 55 This Legal Research Digest focuses on those SMS legal requirements that appear most likely to survive into the final rule either because they have not generated sig- nificant controversy or because they are fundamental to the underlying principles of SMS as set forth by either the FAA or ICAO.

9 safety issues.66 As with the accountable executive, the concept of a confidential reporting system is likely to survive in any final SMS rule. Airport sponsors have expressed significant concern about the practical implementation of such a system but have not objected to the principle that SMS requires a single point of reporting and that reporting should carry at least some level of confidentiality. The ability of air- port sponsors to maintain confidentiality is not clear in many states, notwithstanding the principle that confidentiality is crucial for the success of the report- ing system. d. Non-movement Areas The proposed rule would “expand the scope of [P]art 139 by including the non-movement areas” in the implementation of SMS.67 FAA proposes to define the “non-movement area” as [T]he area, other than that described as the movement area, used for the loading, unloading, parking, and move- ment of aircraft on the airside of the airport (including ramps, apron areas, and on-airport fuel farms).68 After it first appeared (with one minor difference) in the NPRM, FAA received a number of criticisms of this definition.69 Nonetheless, FAA basically con- firmed its proposed definition in the SNPRM and clarified that it would include “the entire non-move- ment area regardless of lease arrangements.”70 FAA also received many criticisms of the requirement for sponsors to implement SMS within the non-move- ment area, stating that it would be too complex, costly, and/or time-consuming.71 FAA disagreed with these commenters and reaffirmed that the proposed rule would require sponsors to implement SMS for the non-movement areas.72 The physical scope of SMS requirements is a principal SMS component that may be revised in some form prior to final promulgation. Nevertheless, because it is likely that 66 Id. 67 Id. 68 Safety Management System for Certificated Airports, 81 Fed. Reg. at 45,907. 69 Id. at 45,881. The NPRM included the phrase “with- out limitation” before “ramps, apron areas, and on-airport fuel farms.” Safety Management System for Certificated Airports, 75 Fed. Reg. at 62,021. The preamble to the SNPRM suggests that the definition of “non-movement area” would not be changed from the version that appears in the NPRM, but the actual proposed promulgation in the SNPRM deleted the “without limitation” language. Safety Management System for Certificated Airports, 81 Fed. Reg. at 45,907. There is no explanation in the SNPRM about why this phrase was stricken. 70 Safety Management System for Certificated Airports, 81 Fed. Reg. at 45,881. 71 Id. 72 Id. at 45,881-82. of many comments on the NPRM, and in the SNPRM, FAA proposed that the term mean [A]n individual designated by the [sponsor] to act on its behalf for the implementation and maintenance of the Air- port [SMS]. The Accountable Executive has control of the [sponsor]’s human and financial resources for operations conducted under the Airport’s Operating Certificate. The Accountable Executive has ultimate responsibility to the FAA, on behalf of the [sponsor], for the safety performance of operations conducted under the [sponsor]’s Airport Oper- ating Certificate.62 FAA has acknowledged that in practice, the accountable executive will most likely be the airport director or airport manager.63 Notwithstanding crit- icism in many comments on the NPRM that the accountable executive concept is practically unwork- able or poses an unacceptable liability burden on airport management, the concept in its basic form is likely to survive into any final rule. The reason lies in one of the fundamental principles underlying SMS: there must be a single individual who is ulti- mately responsible for safety management at an air- port and that person must have the legal and practical authority to order safety-related actions proactively or reactively. In fact, it is precisely this fundamental concept that is most concerning to air- port sponsors in the United States. Unlike in some countries, the senior airport sponsor executive (i.e., CEO, manager, director, or whatever title applies) has only very limited control over airfield activities conducted by third parties such as airlines, ground service providers, or contractors, and often does not have unilateral control over the airport’s budget. Union and labor rules further constrain the author- ity of the senior executive. The very concept of a single point of authority would require a significant restructuring of relationships among actors on an airfield at many commercial service airports in the United States. c. Confidential Hazard Reporting System The proposed rule would require sponsors to develop and implement a confidential hazard report- ing system.64 FAA explains that this reporting system would be intended to collect data from a variety of sources, including airport employees, pilots, or other airfield tenants.65 To encourage participation, FAA has stated that the reporting system should be “non- punitive,” and therefore has proposed to require that it remain confidential for the individuals reporting 62 Safety Management System for Certificated Airports, 81 Fed. Reg. at 45,907. 63 Id. at 45,883. 64 Safety Management System for Certificated Airports, 75 Fed. Reg. at 62,016. 65 Id.