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

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19 airport’s acceptance and tolerance of risk, and so it is likely that issues or discussion will arise with the sponsor’s insurers. 2. Governance and Internal Regulatory Documents SMS implementation will require airport spon- sors to change (or at the very least review) many different internal governance documents to comport with new SMS requirements. These documents could include the airport’s minimum standards, rules and regulations, standard permits and licenses, form leases, badging-related policies con- cerning airfield access, insurance coverage require- ments, personnel and employee indemnification policies, whistleblower protections, and/or record- keeping and document retention policies.135 In addi- tion, the sponsor may need to revise documents that require approval from FAA, such as the Airport Lay- out Plan or Master Plan—approvals that will them- selves trigger the FAA’s internal SMS process pursuant to FAA Order 5200.11.136 The schedule and procedural process for revising documents that require public, stakeholder, or polit- ical review will have to be incorporated into the sponsor’s implementation plan. It is likely that, especially for documents where FAA review is desir- able or necessary, there will be considerable delays when a large number of Part 139 airports simulta- neously need to revise key governance documents. In addition, where SMS implementation requires changes to state or local law, additional procedural hurdles will further delay implementation and will require the involvement of entities or officials who may not routinely be engaged in airport safety matters. IV. INTRODUCTION TO SURVEY AND METHODOLOGY A. Purpose of Survey Although there has been considerable commen- tary in industry publications and at industry confer- ences on the types of legal issues that airport sponsors could face as they implement SMS, there has been little study of the actual legal hurdles that airport sponsors have faced as they have begun any form of SMS implementation. FAA reports on the early pilot studies and later analysis of the experi- ences at those airports that participated in the pilot studies were focused more broadly on SMS 135 Peter J. Kirsch, Ready Set, Go: Legal Considerations In Implementing a Safety Management System, 23 aIr- Port MagazIne 26 (2011). 136 Id. represent a shift in the airport’s standard operating procedures and will raise complex legal questions. As a practical example, an airport sponsor might design a new reporting hierarchy wherein hazards on the non-movement area must be reported to a sponsor-employed safety manager, and then esca- lated to the accountable executive if necessary. Under that model, an employee of a third-party ten- ant in the non-movement area would have the responsibility to report a hazard to the safety man- ager, but because he has no direct relationship with the sponsor, his legal obligation is uncertain.132 The employer may itself need to change its employment policies to allow non-punitive reporting outside the organization’s normal hierarchy (i.e., to the spon- sor’s safety official). The confidentiality and non- punitive reporting principles of SMS will also require that not only the sponsor but all organiza- tions with employees with airfield access adapt their employment policies appropriately so that employ- ees can be assured of confidentiality and protected from punishment for reporting outside the organiza- tion’s normal chain of command. In addition, to the extent that an airport has a union presence, contracts between the sponsor and unions, and third parties and their unions, may influence how the sponsor can train or enforce safety procedures with respect to covered workers. In designing an employee reporting system, the spon- sor may need to involve not only its tenants and other third-party organizations with airfield access but also union representatives to ensure that report- ing outside the normal union reporting or grievance system is made acceptable. c. Insurance Policies During the rulemaking process, some airport sponsors expressed concern that the proposed rule would increase their liability and subsequently cause increases to insurance costs because of increased responsibility for safety on the airfield.133 Without specifically noting the source of its confidence, FAA responded to those concerns by expressing the convic- tion that “[a]ll information regarding insurance that the FAA has been able to collect and review has dem- onstrated that implementing an SMS should decrease insurance claims because an SMS enhances safety (by identifying hazards and mitigating risk).”134 Regardless of the degree and direction (if any) of change in insurance premiums or deductibles, imple- menting SMS may fundamentally change an 132 A related practical consideration is whether and how reporting will be done within private companies. 133 See FAA Responses, supra note 47, at 29. 134 Id.

20 dential and anonymous but so would the identity of the specific airport. C. Identification of Sponsors and Specific Individuals to Be Interviewed The focus of the survey was airport sponsors that have already implemented at least some SMS ele- ments. In order to identify those sponsors, outreach was conducted to industry groups such as Airport Council International—North America (ACI-NA) and American Association of Airport Executives (AAAE). Individual members of the ACI-NA/AAAE SMS Task Force and Working Groups were also con- sulted. The list of airport sponsors who participated in FAA’s SMS pilot programs, which is publicly available, was also reviewed.139 Once a pool of airport sponsors was identified, outreach was made to senior attorneys, risk managers, operations managers, and airport direc- tors affiliated with those airports. Those individuals were targeted on the basis that these persons are most likely to be knowledgeable about the imple- mentation of SMS and legal issues that were encountered in that process. As the initial inter- views were completed, participants were asked if they knew of individuals either within their own organizations or at other airports who might be will- ing to participate in this project, and those responses were used to identify other potential interview participants. D. Themes of Interview Questions Interview participants were first asked to state their job title and responsibilities as they relate to safety and SMS. Based on their answers to this question, additional questions were tailored to address areas where the participants had more particularized knowledge. For example, a senior attorney would be asked in-depth questions regard- ing litigation, but an operations manager would not. As a general matter, interview participants were asked to describe their organization’s progress in implementing SMS, including specific steps that the sponsor has taken toward implementation. As appli- cable to their job responsibilities, interview partici- pants were specifically asked if their airports had: • Hired any outside consultants or legal coun- sel related to SMS, • Performed any internal legal audits related to SMS, 139 See FAA, External SMS Efforts—Part 139 Rulemak- ing: Airport SMS Pilot Studies, https://www.faa.gov/ airports/airport_safety/safety_management_systems/ external/pilot_studies/ (last updated June 27, 2018). implementation mechanics, with little attention to legal impediments or challenges.137 The one excep- tion, as discussed above, is the ACRP report that focused on safety reporting systems, which analyzed some of the associated legal issues as reported by individual airports. By contrast, this survey and Legal Research Digest were designed to specifically assess the legal issues that have actually been encountered by airport sponsors as they imple- mented SMS, and dives deeper into legal issues than the earlier single-issue survey regarding safety reporting systems. One caveat is important to bear in mind when assessing the experiences of airport sponsors that have already implemented (or started to implement) SMS. There is no federal mandate for SMS and those airport sponsors who have implemented SMS have done so voluntarily and without the benefit of a uniform set of national requirements. The result is that each sponsor has undoubtedly adapted the basic SMS principles to their particular environ- ment in a manner that may not necessarily be pre- cisely the same as the SMS implementation at other airports. The value of a national standard, of course, is that SMS implementation principles and proce- dures will be nationally uniform, but in the absence of a national standard, the experiences of voluntary early adopters of SMS are nonetheless instructive. B. Methodology This survey was administered through phone interviews with participants over the course of approximately three months.138 Participants were given a general outline of the topics to be discussed prior to the interview. Interviews generally lasted between 30 and 40 minutes. Because of the poten- tially sensitive nature of the matters discussed in these interviews, all potential participants were assured of confidentiality and anonymity in the reporting of their responses in this Legal Research Digest. Participants were assured that not only would the personal identity of respondents be confi- 137 See PIlot StuDIeS, supra note 27, at 14, 26, 28, and 34 (discussing general legal uncertainties with SMS implementation); lanDry, supra note 40, at 22 (noting that only three pilot study airports involved their legal departments in the implementation process, and provid- ing no discussion of legal issues encountered). 138 Initially, this study was planned as a two-part endeavor that would begin with an online survey and sub- sequent follow-up with phone interviews for those respon- dents with particularly relevant experiences. However, in order to increase the value of the responses, the decision was made to target specific airports and perform more detailed interviews instead of relying on screening questionnaires.