The Federal Aviation Administration Issues New Requirements Related to Implementing Safety Management Systems

14 January 2009 Publication

Legal News Alert: Airport Services

What Is a Safety Management System?
According to the Federal Aviation Administration (FAA), a safety management system (SMS) is a systematic, proactive, and well-defined safety program that allows an airport (or other organization) to strike a realistic and efficient balance between safety and operations. Use of SMS is expected to increase the likelihood that airport operators will detect and correct safety problems before those problems result in an aircraft accident or incident. The FAA has issued an Advisory Circular that describes the SMS program and the FAA’s expected rulemaking.

How Does SMS Work?
Fundamentally, SMS is intended to be a forward-looking, proactive program, rather than an analysis of past incidents. SMS comprises four “pillars” for airports to establish. These are the:

  1. Development and implementation of safety policy and objectives, including staff responsibilities
  2. Development of a safety risk management process, which describes each system or activity at an airport, identifies hazards associated with such system or activity, determines and analyzes the risk associated with each such hazard, and treats and monitors the risk
  3. Assurance of safety through oversight and auditing to ensure that the safety programs are implemented and effective
  4. Promotion of safety through the development of a positive safety culture, including training, within the organization

What Issues Does SMS Present?
Development and implementation of an effective SMS requires a wealth of data. All parties at an airport, including airport employees, air carrier staff, ground handlers, and other airport stakeholders must take part in the information-gathering process. Although the FAA has not yet issued a notice of proposed rulemaking (NPRM) for SMS requirements, we have noted a number of potential legal issues in our preliminary work, including:

  • The manner in which data is gathered, identified, and disseminated.
  • The manner in which a non-punitive reporting system is developed, given that many of the sources of SMS data will not be airport employees, but airport tenant employees.
  • The development of rules, regulations, and lease provisions addressing SMS participation. Since most, if not all, Part 139 airports are owned and operated by public entities, protecting this information in light of state and federal freedom of information acts will be a challenge.

Furthermore, it has been demonstrated that to be effective, a reporting system should be non-punitive. However, most airports cannot impose a requirement that employees of tenants may not be punished for reporting information to an SMS program. Finally, moving from a reactive to a proactive risk avoidance model is a process that the health care industry has already begun to undertake. Lessons learned from the health care industry may be adapted to the aviation industry.

For example, the use of compliance program models, increasingly common in the health care industry, can help airports maintain an effective SMS, reduce risk, and recognize operational benefits. For organizations with effective compliance programs, the U.S. Federal Sentencing Guidelines of 1991 provide that a company can be entitled to a reduction in its penalties.

Conclusion
SMS presents an exceptional opportunity to take airport safety to a new level and to identify and rectify hazards before an accident occurs. There is potential not only for saving lives, but also for preventing damage to expensive equipment. But airport operators also will be presented with new and difficult legal and operational issues as they develop and implement their SMS program. We will work in the second phase of the FAA’s SMS program to identify ways to address the legal issues that airports will face.


Legal News Alert is part of our ongoing commitment to providing up-to-the-minute information about pressing concerns or industry issues affecting our clients and our colleagues.

If you have any questions about this issue or would like to discuss these topics further, please contact your Foley attorney or:

David Y. Bannard
Boston, Massachusetts
617.342.4033
dbannard@foley.com

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