Regulatory Alert: FAA Proposes to Designate SMS Data as 'Protected Information'
October 28, 2021
Today the Federal Aviation Administration (FAA) released a proposal to designate reports, data, and other information created as part of a safety management system (SMS) as 'protected information' when the information is voluntarily provided to FAA. Under the proposed SMS Part 193 Program, the 'protected information' designation would ensure that the information is not disclosed to the public, especially if it needed to be shared with other federal agencies. While the proposal is primarily directed toward Part 121 air carriers, the program would lay the foundation for Part 139 certificated airports to participate should FAA move forward with a final rule on airport SMS requirements. FAA's proposal further suggests that the airport industry could see a final rule within the foreseeable future. 
You can read FAA's proposal here. 
Background. As many airports are aware, FAA's rulemaking on airport SMS has a very long history. FAA proposed the original notice of proposed rulemaking (NPRM) in 2010. In 2016, FAA published a supplemental notice of proposed rulemaking (SNPRM), which addressed many of the concerns raised by industry in response to the NPRM, but also raised new issues to which AAAE and others responded. In August, FAA reopened the comment period for the SNPRM, providing industry with an opportunity to present any new information that airports may have for the agency. You can read AAAE's recently filed comments here. 
At each stage of the process, AAAE and the airport community have raised concerns over the potential for SMS-related data to become available to the public under federal, state, and/or local open records laws. In the SNPRM, FAA indicated that protection of SMS data from public disclosure under the Freedom of Information Act (FOIA) is contemplated under 49 U.S.C. 44735. However, AAAE emphasized that the agency needed to be clearer on how this exclusion could apply to airport SMS programs and it would not prevent disclosure pursuant to any state and/or local open records laws.
Overview of Proposed SMS Part 193 Program. Under its authority in 14 C.F.R. Part 193, FAA is proposing to create a 'SMS Part 193 Program' that would allow participants to protect certain data provided to FAA from public disclosure. A few highlights from the proposal include: 
• FAA is proposing to designate the following as 'protected information' that is not subject to public disclosure: any reports, data, and other information voluntarily provided to the agency in connection with the development and implementation of SMS.
• Part 121 air carriers would currently be allowed to participate in the program, as well as any other certificate holder that voluntarily develops and implements an FAA-approved SMS and maintains it in an active status. However, if FAA moves forward with a final rule for airport SMS, the program contemplates the inclusion of airports as participants.
• Any voluntarily submitted SMS data would have to be labeled in such a manner to receive protection. FAA indicated that the agency would segregate information that the certificate holder voluntarily provides from any required information that is given to FAA.
• The SMS Part 193 Program would expand the amount of protection from disclosure that is currently afforded to SMS data, including in circumstances where the FAA needs to share information with other federal agencies.
• By submitting SMS data to FAA under the proposed SMS Part 193 Program, there does not appear to be any protection from disclosure under state and/local open records laws.
What's Next? FAA will be publishing the proposal in the Federal Register tomorrow, triggering a 30-day window for airports and the public to comment. The deadline for submitting feedback to FAA will be Monday, November 29. AAAE will work closely with its members and the Operations, Safety, Planning and Emergency Management Committee to evaluate the proposal in further detail and determine whether to file comments. 
  
 
Today the Federal Aviation Administration (FAA) released a proposal to designate reports, data, and other information created as part of a safety management system (SMS) as 'protected information' when the information is voluntarily provided to FAA. Under the proposed SMS Part 193 Program, the 'protected information' designation would ensure that the information is not disclosed to the public, especially if it needed to be shared with other federal agencies. While the proposal is primarily directed toward Part 121 air carriers, the program would lay the foundation for Part 139 certificated airports to participate should FAA move forward with a final rule on airport SMS requirements. FAA's proposal further suggests that the airport industry could see a final rule within the foreseeable future. 
You can read FAA's proposal here. 
Background. As many airports are aware, FAA's rulemaking on airport SMS has a very long history. FAA proposed the original notice of proposed rulemaking (NPRM) in 2010. In 2016, FAA published a supplemental notice of proposed rulemaking (SNPRM), which addressed many of the concerns raised by industry in response to the NPRM, but also raised new issues to which AAAE and others responded. In August, FAA reopened the comment period for the SNPRM, providing industry with an opportunity to present any new information that airports may have for the agency. You can read AAAE's recently filed comments here. 
At each stage of the process, AAAE and the airport community have raised concerns over the potential for SMS-related data to become available to the public under federal, state, and/or local open records laws. In the SNPRM, FAA indicated that protection of SMS data from public disclosure under the Freedom of Information Act (FOIA) is contemplated under 49 U.S.C. 44735. However, AAAE emphasized that the agency needed to be clearer on how this exclusion could apply to airport SMS programs and it would not prevent disclosure pursuant to any state and/or local open records laws.
Overview of Proposed SMS Part 193 Program. Under its authority in 14 C.F.R. Part 193, FAA is proposing to create a 'SMS Part 193 Program' that would allow participants to protect certain data provided to FAA from public disclosure. A few highlights from the proposal include: 
• FAA is proposing to designate the following as 'protected information' that is not subject to public disclosure: any reports, data, and other information voluntarily provided to the agency in connection with the development and implementation of SMS.
• Part 121 air carriers would currently be allowed to participate in the program, as well as any other certificate holder that voluntarily develops and implements an FAA-approved SMS and maintains it in an active status. However, if FAA moves forward with a final rule for airport SMS, the program contemplates the inclusion of airports as participants.
• Any voluntarily submitted SMS data would have to be labeled in such a manner to receive protection. FAA indicated that the agency would segregate information that the certificate holder voluntarily provides from any required information that is given to FAA.
• The SMS Part 193 Program would expand the amount of protection from disclosure that is currently afforded to SMS data, including in circumstances where the FAA needs to share information with other federal agencies.
• By submitting SMS data to FAA under the proposed SMS Part 193 Program, there does not appear to be any protection from disclosure under state and/local open records laws.
What's Next? FAA will be publishing the proposal in the Federal Register tomorrow, triggering a 30-day window for airports and the public to comment. The deadline for submitting feedback to FAA will be Monday, November 29. AAAE will work closely with its members and the Operations, Safety, Planning and Emergency Management Committee to evaluate the proposal in further detail and determine whether to file comments. 
  
 
