We Just Bought SMSWe Just Bought SMS

Presented to:Presented to:

LAWYER PILOTS BAR ASSOCIATIONLAWYER PILOTS BAR ASSOCIATIONWinter Meeting, 2011Winter Meeting, 2011

by:by:

MICHAEL L. DWORKINMICHAEL L. DWORKINMICHAEL L. DWORKIN and ASSOCIATESMICHAEL L. DWORKIN and ASSOCIATES

465 CALIFORNIA STREET, SUITE 210465 CALIFORNIA STREET, SUITE 210SAN FRANCISCO, CALIFORNIASAN FRANCISCO, CALIFORNIATelephone: 1-415-421-2500Telephone: 1-415-421-2500

FAX: 1-415-421-2560FAX: 1-415-421-2560www.avialex.com

Copyright 2011. Michael L. Dworkin. All rights reservedCopyright 2011. Michael L. Dworkin. All rights reserved

--Now, What Do We Do?

Traditional Aviation Mishap InquiryTraditional Aviation Mishap Inquiry

what happened?what happened? has it happened before?has it happened before? how did it happen?how did it happen? who was/is responsible?who was/is responsible? was everybody appropriately trained?was everybody appropriately trained? were people following prescribed instructions, procedures were people following prescribed instructions, procedures

and manuals?and manuals? were these instruction, procedures and manuals adequate?were these instruction, procedures and manuals adequate? were independent contractors involved? If so, were they were independent contractors involved? If so, were they

complying with their contracts and the instructions complying with their contracts and the instructions provided to them?provided to them?

were quality control procedures adequate?were quality control procedures adequate? how do we avoid recurrence?how do we avoid recurrence?

SMS—The Basics SMS—The Basics Four Simple (or not so Simple) Questions:Four Simple (or not so Simple) Questions:

• What is going to cause the nextWhat is going to cause the next

accident?accident? How do we know?How do we know? What are we doing about it?What are we doing about it? Is it working?Is it working?

What SMS doesWhat SMS does::

Instead of waiting for a mishap (or regulatory violation) to Instead of waiting for a mishap (or regulatory violation) to occur, SMS proactively addresses beforehand:occur, SMS proactively addresses beforehand:

-what risks are we facing?-what risks are we facing?

-are people appropriately trained and qualified?-are people appropriately trained and qualified?

-are instructions, procedures and manuals adequate?-are instructions, procedures and manuals adequate?

-is there sufficient oversight of independent contractors?-is there sufficient oversight of independent contractors?

-are quality control procedures adequate?-are quality control procedures adequate?

-what remedial measures must we take?-what remedial measures must we take?

-what measures must we take to minimize foreseeable risks? -what measures must we take to minimize foreseeable risks?

-how do we continuously monitor and assess the -how do we continuously monitor and assess the appropriateness and effectiveness of our safety management appropriateness and effectiveness of our safety management activities?activities?

And essentially makes every employee a “QA Manager”And essentially makes every employee a “QA Manager”

Managing Compliance vs. Managing RiskManaging Compliance vs. Managing Risk

Rules and regulations follow accidents—they Rules and regulations follow accidents—they don’t precede themdon’t precede them

Managing Risk requires:Managing Risk requires:• Acknowledgement and assessment of riskAcknowledgement and assessment of risk• Allocation of resources and attentionAllocation of resources and attention• Just Culture:Just Culture:

Safety reporting is rewarded and not punished; Safety reporting is rewarded and not punished; andand

Willingness to go beyond minimum complianceWillingness to go beyond minimum compliance

Regulatory Basis for SMSRegulatory Basis for SMS

ICAO: In 2006, ICAO required that all member ICAO: In 2006, ICAO required that all member countries implement SMS for operators and countries implement SMS for operators and maintenance organizations. November 18, 2010 maintenance organizations. November 18, 2010 deadline has come and gone.deadline has come and gone.

FAA: No current regulatory mandate for air carriers FAA: No current regulatory mandate for air carriers or other operators. FAA NPRM (November 5, 2010) or other operators. FAA NPRM (November 5, 2010) to require FAR 121 air carriers to implement SMS to require FAR 121 air carriers to implement SMS within 3 years. within 3 years.

Outside of US: Business aviation operators who Outside of US: Business aviation operators who travel outside of the US are subject to another travel outside of the US are subject to another countrycountry’’s safety requirements. Bermuda and s safety requirements. Bermuda and several Caribbean countries require that business several Caribbean countries require that business operators have SMS or demonstrate that one is operators have SMS or demonstrate that one is being implemented for entry. being implemented for entry.

Examination of Each Aspect of OperationsExamination of Each Aspect of Operations

-Flight operations;-Flight operations;

-Maintenance and inspection;-Maintenance and inspection;

-Dispatch/flight following;-Dispatch/flight following;

-Cabin safety;-Cabin safety;

-Ground handling and servicing;-Ground handling and servicing;

-Cargo (and hazmat) handling; and-Cargo (and hazmat) handling; and

-Training-Training

and thoroughly evaluate potential risks associated with each, and thoroughly evaluate potential risks associated with each, retrospectively and prospectively.retrospectively and prospectively.

See: See: FAA Advisory Circular (AC) 120-92AFAA Advisory Circular (AC) 120-92A

www.faa.gov/about/initiatives/smswww.faa.gov/about/initiatives/sms

To achieve this:To achieve this:

Corporate culture must be consistent with SMS Corporate culture must be consistent with SMS goals;goals;

Lines of internal communication must be open;Lines of internal communication must be open; Employees must be encouraged to report safety Employees must be encouraged to report safety

concerns;concerns; Management must provide environment Management must provide environment

conducive to data sharing;conducive to data sharing; Employees must feel that they can trust Employees must feel that they can trust

management to be responsive to reported management to be responsive to reported concerns, free of retaliation;concerns, free of retaliation;

Company support of employees in defense of FAA Company support of employees in defense of FAA investigations/enforcement actions.investigations/enforcement actions.

DonDon’’t Purchase SMS and Put it on a Shelf. t Purchase SMS and Put it on a Shelf. SMS must be used in connection with other SMS must be used in connection with other

programs:programs:FAA Programs:FAA Programs:

Voluntary Self Disclosure Reporting Program (AC 120-58);Voluntary Self Disclosure Reporting Program (AC 120-58); Internal Evaluation Programs (AC120-59A);Internal Evaluation Programs (AC120-59A); Aviation Safety Action Plan (AC120-66);Aviation Safety Action Plan (AC120-66); Flight Operations Quality Assurance (AC120-82);Flight Operations Quality Assurance (AC120-82); Continuing Analysis and Surveillance System (AC120-79);Continuing Analysis and Surveillance System (AC120-79); FAA/NASA Aviation Safety Reporting Program (AC00-46D).FAA/NASA Aviation Safety Reporting Program (AC00-46D).

Other Programs:Other Programs: IS-BAO (International Standard for Business Aircraft Operations);IS-BAO (International Standard for Business Aircraft Operations); Air Charter Safety Foundation (ACSF) Registration;Air Charter Safety Foundation (ACSF) Registration; Argus rating;Argus rating; Wyvern registration.Wyvern registration.

Not Just for Air CarriersNot Just for Air Carriers

Business and Corporate Aircraft Operators;Business and Corporate Aircraft Operators; Repair Stations;Repair Stations; Airports (airfield and ramp areas);Airports (airfield and ramp areas); FAA Air Traffic Organization.FAA Air Traffic Organization.

CaveatsCaveats::

Working relationship between certificate holder/operator and FAA Working relationship between certificate holder/operator and FAA FSDO;FSDO;

FAA disclosure of voluntarily provided information;FAA disclosure of voluntarily provided information; Courts: American Crash at Cali, Colombia; Comair Crash at Courts: American Crash at Cali, Colombia; Comair Crash at

Lexington, KY;Lexington, KY; Canada: First to impose SMS legal requirement, but no protection Canada: First to impose SMS legal requirement, but no protection

of data;of data; In fact, the US is the only country which affords protection of data;In fact, the US is the only country which affords protection of data; Attorney-client privilege;Attorney-client privilege; Can data and/or response to data become a liability?Can data and/or response to data become a liability? Criminal ProceedingsCriminal Proceedings

• 49 U.S.C. 46301, 49 U.S.C. 46301, et seq.et seq.• 18 U.S.C. 100118 U.S.C. 1001