Need to Know: FAA Authorization

Credit: Senate.gov

Credit: Senate.gov

By Zachary Israel

In order to be able to do its job, the Federal Aviation Administration (FAA) needs to be periodically authorized (and thus funded) by Congress. Authorization is granted through lengthy bills that often also include provisions that direct certain reforms and other policies. For example, the last significant FAA authorization, the “FAA Modernization and Reform Act of 2012,” directed the FAA to develop regulations for commercial drone use within U.S. airspace. These bills also include language that bestows new rulemaking authorities upon the FAA, as well as some language that merely encourages certain reforms and policy shifts. The 2012 authorization expired on March 31, 2016. However, Congress was not able to pass a full bill in time to meet that deadline. And so, on March 30, President Obama signed into law the “Airport and Airway Extension Act of 2016,” a short-term bill that extends authorization and tax authority for the FAA through July 15, 2016, without any additional provisions. This gives the House and Senate just over three months to reach a consensus and pass a long-term FAA reauthorization bill before Congress breaks for a seven-week recess from July 16 to September 6. Otherwise, an additional short-term bill of several months will be necessary. Until a new full authorization bill is passed, the FAA’s drone policies are bound to the provisions of the 2012 Act.

The House and Senate are both working on complex authorization bills. The contents and prospects of the FAA authorization bills are of crucial importance to the domestic drone industry. Here’s what you need to know:

House of Representatives: “Aviation Innovation, Reform, and Reauthorization (AIRR) Act of 2016”

On February 11, the House Transportation and Infrastructure (T&I) Committee passed the “Aviation Innovation, Reform, and Reauthorization (AIRR) Act of 2016” (H.R. 4441), by a near party-line vote of 32-26. The AIRR Act would reauthorize the FAA through September 30, 2022. The AIRR Act contains a significant subtitle regarding drones. Broadly speaking, this subtitle seeks to encourage the growth of the domestic drone industry by streamlining certain permitting processes for non-recreational drone use and fostering research on technologies that will aid in airspace integration (for example, sense-and-avoid). The bill also emphasizes the need for privacy policies governing the use of drones by public entities.

The AIRR Act includes a controversial provision that would privatize the U.S. air traffic control system. This provision is widely opposed by Democratic lawmakers. The debate over this provision, which has nothing whatsoever to do with drones, has effectively halted consideration of the AIRR Act in the House. As a result, House GOP leadership has not (and likely will not) put the bill up for a vote by the full House any time soon.

Here are some of the crucial provisions from the AIRR Act:

  • § 45503: Directs the FAA to create a risk-based permitting process for certain non-recreational unmanned aircraft operations. These permits would be valid for five years and could be renewed for another five years. Small unmanned aircraft would be exempt from this process.
  • § 45504: Simplifies the authorization process for public entities—such as police departments—wishing to use unmanned aircraft.
  • Sec. 433: Expands and extends the FAA’s existing test site program, and specifically calls on the FAA to encourage testing of sense-and-avoid technology. (Similar provisions are included in the Senate bill.)
  • Sec. 434: Directs the FAA to expand its leadership staff within its unmanned aircraft program.
  • Sec. 435: Encourages the FAA to “place priority” on educating the public about the potential dangers of operating unmanned aircraft near airports without permission. (Similar provisions are included in the Senate bill.)
  • Sec. 436: Directs the FAA to conduct a study, in collaboration with the National Telecommunications and Information Administration, on the potential privacy impact of unmanned aircraft use in the national airspace. (Similar provisions are included in the Senate bill.)
  • Sec. 438: Directs the FAA to continue to expedite authorizations to fire departments wishing to use drones for firefighting operations.
  • Sec. 439: Calls for the FAA to set up an advisory committee of government and industry representatives to study the “necessity, feasibility, and benefits of establishing” an air traffic management system for drone operations below 400 feet. (Similar provisions are included in the Senate bill.)
  • Sec. 440: Directs the FAA to set up a pilot program to test systems that can be used to “detect, locate, and track unmanned aircraft” near airports. (Similar provisions are included in the Senate bill.)

The T&I Committee also considered 60 amendments, approving several related to drones, including:

  • Rep. Bill Shuster’s (R-PA) manager’s amendment #62: Directs the FAA to facilitate drone operations in support of utility service restorations; prohibits the use of drones within 500 feet of amusement park rides; directs the FAA to issue a final rule regarding drone use near chemical facilities and oil refineries; and calls on the FAA to plan for the introduction of drones weighing more than 1,320 pounds to the National Airspace System.
  • Rep. Julia Brownley’s (D-CA) amendment #40: Calls for civil fines of up to $25,000 for operating a drone that interferes with wildfire suppression efforts. (Similar provisions are included in the Senate bill).
  • Rep. Carlos Curbelo’s (R-FL) amendment #46: Requires the Department of Transportation (DOT) and Health & Human Services (HHS) to ensure that insurance companies can use drones in disaster-impacted areas for the purpose of conducting insurance assessments, expediting repairs and expediting claims.
  • Rep. Scott Perry’s (R-PA) amendment #57: Requires the DOT Secretary to develop a performance-based regulatory framework to enable commercial drones to carry goods (for example, for a drone delivery service). (Similar provisions are included in the Senate bill.)

Senate: “Federal Aviation Administration Reauthorization Act of 2016”

On March 16, the Senate Commerce, Science, and Transportation Committee passed, by a unanimous vote, its own FAA reauthorization bill, the “Federal Aviation Administration Reauthorization Act of 2016” (S. 2658), which would reauthorize the FAA through September 30, 2017. Like the AIRR Act, this bill seeks to encourage growth in the drone industry while expanding privacy protections. Unlike the AIRR Act, this bill does not direct the FAA to privatize the air traffic control system, making it much less controversial than the House’s counterpart bill. S. 2658 includes an extensive subtitle regarding drones:

  • Sec. 2102: Expresses the sense of Congress that all non-recreational drone users, with the exception of newsgathering organizations, must maintain a written privacy policy on “the collection, use, retention, and dissemination of any data collected” by their drones.
  • Sec. 2104: Calls on the National Telecommunications and Information Administration to submit a report to Congress that includes policy recommendations around privacy and drone use. (Similar provisions are included in the House bill.)
  • Sec. 2106: Directs the FAA to create a database of government and commercial entities that are authorized to use drones. In this database, public entities would be required to disclose the type of aircraft being used and the purpose of its operations. (Similar provisions are included in the House bill.)
  • Sec. 2122: Like the AIRR Act, would extend the authorization for the FAA’s six drone test sites. (Similar provisions are included in the House bill.)
  • Sec. 2123: Calls on the FAA to develop a plan to research a number of technologies and policy issues relating to unmanned aircraft.
  • Sec. 2124: Directs the FAA to develop, in collaboration with stakeholders, a set of drone safety standards, as well as an airworthiness approval process for small drones.
  • Sec. 2126: Expands the FAA’s Section 333 exemption program, which allows certain drone users to petition the FAA for exemption from current rules for non-recreational drone use. This section also gives the FAA authority to exempt users from rules prohibiting nighttime and beyond-visual-line-of-sight operations. (Similar provisions are included in the House bill.)
  • Sec. 2127: Directs the FAA to further develop its policies for drone integration, including special regulations for “micro” drones weighing less than 4.4 pounds, which would allow these aircraft to be used without the operator needing to pass an airman certification process. This section also calls on the FAA to make it a priority to develop rules that would allow for beyond visual line of sight operations.
  • Sec. 2128: Outlines policies for the use of drones by public entities, including a simplified authorization process, and the requirement that all public entities that use drones develop data minimization and privacy policies. As in the AIRR Act, the FAA would be required to provide the public with information about what entities are using drones and how they are using them.
  • Sec. 2130: Directs the FAA to create an aeronautical knowledge test for non-recreational drone users.
  • Sec. 2131: Requires drone manufacturers to provide safety information with their products.
  •  Sec. 2133: Calls on the FAA to utilize technologies for detecting and tracking drones in order to support enforcement of airspace rules. (Similar provisions are included in the House bill.)
  • Sec. 2134: Directs the FAA to implement a $20,000 civil fine for drone operators who interfere with emergency response activities.
  • Sec. 2135: Calls on the FAA to deploy available technologies for detecting “errant or hostile” drones near airports. The bill would make $6 million available for this program. (Similar provisions are included in the House bill.)
  • Sec. 2137: Directs the FAA to develop and implement its rules for drone integration as quickly as possible.
  • Sec. 2138: Authorizes the FAA and NASA to develop and implement a pilot program for an unmanned aircraft traffic management system. (Similar provisions are included in the House bill.)
  • Sec. 2141: Directs the FAA to create rules that would authorize the use of drones to carry and deliver goods. This would enable drone delivery services like those proposed by Amazon and Google. (Similar provisions are included in the House bill.)
  • Sec. 2142: Provides for the “broad preemption of state and local authorities” related to the regulation of commercial use of drones in states and communities. This provision would make the FAA the sole regulator for drone use in the national airspace.

As with the House’s AIRR Act, the Senate Commerce Committee considered more than 60 amendments during the markup process and several related to drones were approved, including the following:

  • Sen. Ed Markey’s (D-MA) amendment #6: Requires that the database of public drones include locations, operational times, general purposes, and technical capabilities of the drones. (Similar provisions are included in the House bill.)
  • Sen. Ed Markey’s (D-MA) amendment #12: Calls for FAA drone sites to improve privacy protections “through the use of advances in unmanned aircraft systems technology.”
  • Sen. Gary Peters’ (D-MI) amendment #3: Permits the use of drones at universities and colleges by faculty, students and staff.
  • Sen. Cory Booker’s (D-NJ) amendment #11: Allows micro-drones (under 4.4 pounds, operating during the day, at less than 40 knots and under 400 feet) to be operated for non-recreational purposes without any airman certification.
  • Sen. Dean Heller’s (R-NV) amendment #1: Requires the DOT to issue a final rule authorizing the use of drones to carry goods within two years of enactment of the bill.

Near Term Prospects of FAA Authorization

On April 4, Senate Majority Leader Mitch McConnell (R-KY) announced that the Senate will be using a tax bill passed by the House last year, the “America’s Small Business Tax Relief Act of 2015” (H.R. 636), as a vehicle upon which the FAA Reauthorization Act will ride (this is due to a rule stating that all legislation including tax-related provisions must originate from the House). On April 6, the Senate took a key step forward on the FAA Reauthorization Act by voting, 98-0, to limit debate on the procedural motion to put the bill before the Senate. Because the FAA bill will likely be the last tax bill to be considered by the Senate before the fall elections, negotiations are underway to attach the extension of some expiring clean energy tax breaks to the bill. Additionally, two transportation security-related amendments were also approved by the full Senate on April 7 by votes of 85-10 and 91-5, respectively, in the aftermath of the Brussels airport attack last month. There will very likely be several additional votes on amendments to the bill during the week of April 11, before taking a final vote by the end of that week. One important pending amendment (SA 3558) from Sens. Dianne Feinstein (D-CA), Thom Tillis (R-NC), and Richard Blumenthal (D-CT) would remove the preemption of state and local authorities with regard to the regulation of drones and replace it with a more limited preemption relating to the manufacture and design and operations of civil drones.

If the Senate passes the bill, it will go back to the House. The next three months of consideration of the FAA Reauthorization Act will be primarily in the House’s court. It is still unclear whether House GOP leadership will allow for an amendment process of S. 2658 (thus ultimately bringing it up for a full vote by the House), ignores it entirely, or attempts to vote on the House T&I Committee-passed AIRR Act.

It seems very likely that a long-term FAA bill, ranging anywhere from 18 months to six years will be enacted into law prior to July 15, 2016. There is simply no other major bills for Congress to work on at the moment. Once the House passes its own version of an FAA reauthorization bill (whatever that may look like), the House and Senate leadership of the T&I and Commerce Committees will form a bicameral Conference Committee, where differences will be hashed out between the House-passed bill and the Senate-passed bill and an agreement will be made on a final text that will be put up for a vote by both the House and Senate. This final bill is likely to include some combination of the provisions currently set forth in the AIRR Act and the Senate authorization bill; provisions that are already in both bills (for example, provisions that call for rules that enable drones to carry goods) are most likely to also be included in the final authorization bill. After those two chambers each pass the bill, it will finally get sent to President Obama for his signature.

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