TOPIC 4-02, LEGAL ISSUES RELATED TO DEVELOPING SAFETY MANAGEMENT SYSTEMS (SMS) AND SAFETY RISK MANAGEMENT (SMR) AT AIRPORTS

                                  SCOPE

            [1]Safety Management System (SMS) has been defined as a “systemic approach to managing safety, including the necessary organization structures, accountabilities, policies, and procedures” (International Civil Aviation Organization (ICAO), Safety Management Manual at 6.5.3 ICAO Doc. 9859-AN/474 (2d ed. 2009).  SMS has four key elements: 1) Safety Policy which defines the methods and tools for achieving safety goals, including management accountability for such goals; 2) Safety Risk Management (SMR) which requires a proactive approach to identifying, categorizing both quantitatively and qualitatively risks, and establishing mitigation for identified risks; 3) Safety Assurance which includes a method for establishing processes to monitor an organization’s performance in identifying risks and establishing preventive or corrective actions to maintain safety; and 4) Safety Promotion which involves the establishment of procedures and processes which change the safety culture and environment including the establishment of confidential reporting systems to encourage employee reporting and feedback as well as employee training. 

            The central and distinguishing feature of SMS would require airports to adopt a proactive approach to safety assessment before there is an incident or accident.  Under SMR, an airport would be required to document identified hazards, undertake risk analysis and assessment for such hazards and to develop mitigations.  As a result of such SMR process, the airport would be required to identify both acceptable and unacceptable risk.  The NPRM indicates that an airport would take steps to reduce risks of hazards which presented as unacceptable.  If a hazard is identified as low or has no associated risk, an airport may not have to proceed with mitigation.  Under the NPRM, the airport would be required to retain documents for each SMR step (identification, assessment, proposed mitigation and acceptance of risk) for a period of time after undertaking risk analysis or implementing mitigation measures.   

The objective of the project will be to produce a legal survey which could be used  by attorneys advising airports in the implementation of SMS and the development of risk management systems under SMR.  A survey should be conducted to reveal the following: (1) case law and statutes, which might impact such advice including cases in which airports and other transportation entities have been held liable for failing to adequately undertake risk analysis under a pre-SMS environment; (2) the types of strategies, which airports might use to manage legal risks associated with implementation of SMS, including examination of implementation strategies undertaken in other industries.  For example, an ACRP indicates that other industries and aviation segments have utilized safety system principles including the petroleum, nuclear, railroad, marine and chemical industries, as well as other segments of the aviation industry (ACRP Report 1: Safety Management System for Airports: Volume1: Overview (2007); and (3) whether it would be worthwhile to implement certain regulatory changes to give the FAA and airports the authority to exempt from disclosure required SMS/SMR documentation and legislative changes to provide immunity to airports for compliance with FAA requirements.

Also, the research should examine the extent to which discovery rules, and the rules of evidence, would permit discovery of the results of an SMS implementation plan and any studies that led to its adoption. 

Finally, the report should include recommendations identifying the elements that the proposer believes should and should not be included in an airport SMS and the proposed forms for such elements.

Status:  The digest has been published as LRD 19:  Legal Issues Related to Developing Safety Management Systems and Safety Risk Managment at U.S.  Airports.