The omniscient GAO has reviewed the FAA’s performance in implementing the ICAO mandated Safety Management Systems (SMS). While giving the FAA some credit for initiating such an important, ambitious safety program, the GAO casts doubt on whether the FAA has the resources to cope with the magnitude of such a complex, 360◦ assessment by airlines, airports and other certificate holders. That’s a critique that obviously directed to the Congress; since the agency cannot chose to expand their budget.
The 2nd point of criticism has to do with state Freedom of Information Acts. The problem is that almost all airports are state or local governments and as such are subject to the state FOIA rules. One of the tenets of SMS is to assess where there are weaknesses in their existing practices. Thus, the GAO worry, in defining what is a potential problem, the airport subjects itself to a press request (perhaps more problematic than journalists, plaintiffs’ lawyers) that will disclose that self-diagnosis.
This is not an issue which the FAA easily can fix. The FAA may attempt to issue an SMS rule that explicitly precludes a state court from compelling an airport from releasing the SMS information. Indeed, there is a strong national rationale that would support such a limited preemption of state FOIA law. In order to promulgate such a rule, the FAA would have to get the approval from the Department of Transportation and the Office of Management and Budget. Both of those governmental bodies, while supportive of SMS’ goals, may be more likely to defer to the states FOIA laws. It is also likely that some states, either through the NPRM process or Congress, will oppose the proposed preemption. This is not an easy path for the FAA.
On the other hand AAAE and ACI have the state connections and the lateral political acumen to navigate the competing interests of local FOIA considerations and of protecting the valid safety considerations of SMS. FAA can support and provide the safety rationale.
The bottom line of the GAO report, although not directly stated by that organization, is that the FAA needs help on both implementation and protection of the SMS program.
Clearly the preempting of state FOIA/local SMS reports is not likely within the agency’s regulatory or legislative talents.
If (as the GAO has declared) the SMS task is daunting, Congress will have to consider adding resources. One possible alternative approach would have the FAA replicate the extension of its resources required in authorizing new carriers to operate. The analogy would be to utilize 3rd party support in the SMS context like the Certification Consultant that it utilizes in the Parts 121 and 135 contexts. Even if the FAA does not create such officially recognized auxiliary assets, the use of skilled aviation professionals in developing individual carrier and airport plans, external support may reduce the FAA’s processing loads.
The FAA has an important safety goal in implementing SMS. The GAO report really points to the fact that others may have to assist in achieving that goal.Share this article: