In late June, both chambers of Congress introduced their own versions of a Federal Aviation Administration (FAA) Reauthorization bill. With Congress in recess for the remainder of August and the current FAA extension expiring at the end of September, it appears increasingly unlikely that either bill will make it to the President’s desk. If Congress is unable to pass a full FAA Reauthorization bill, then it will need to pass an extension. Given the unique needs of the Unmanned Aircraft Systems (UAS or drone) industry, the extension could include some of the common elements addressed in both the House and Senate Reauthorization bills.
Where is Congress with FAA Reauthorization so far?
On June 22, 2017, both the Senate and the House of Representatives began review of FAA Reauthorization bills in their respective chambers of Congress and each face their own difficulties moving forward.
The Senate Reauthorization bill, formally titled the Federal Aviation Administration Reauthorization Act of 2017, was submitted to the Committee on Commerce, Science, and Transportation on June 29, 2017, which made quick work of approving the bill. Chairman John Thune (R-SD) remarked that the Senate’s aviation reform legislation improves safety and incorporates over 50 amendments offered by both committee Democrats and Republicans. One amendment in particular, however, is anticipated to cause controversy should the Senate bill make its way to the floor. The amendment, submitted by Thune, would allow varied kinds of flight training to qualify under the existing rule requiring commercial airline co-pilots to log 1,500 hours of flight time before they are certified, a move lauded by regional and rural airlines who have lobbied lawmakers for years to amend the regulation. But Senate Minority leader Chuck Schumer (D-NY) has pledged to prevent what he feels is a watering down of safety rules that were put in place as a result of an accident that occurred in his state, outside of Buffalo.
The House Reauthorization Bill, formally titled the 21st Century Aviation Innovation, Reform, and Reauthorization Act (21st Century AIRR Act), was approved by the House Transportation Committee almost entirely along party lines. The bill remains controversial because of its ATC Privatization provision championed by House Transportation Chairman Bill Shuster (R-PA). The White House has publicly advocated for ATC Privatization, but so far privatization has been unable to gain traction. Six aviation groups including the Aircraft Owners and Pilots Association (AOPA) have come out against privatization arguing that privatization will have negative unintended consequences without achieving the desired outcomes such as reducing aircraft delays and implementing the NextGeneration (NextGen) technologies. This opposition, plus a recent negative report on the costs of the bill from the Congressional Budget Office make it seem increasingly unlikely that Shuster will be able to find the support in the House to push the controversial measure through the House, and even less likely that he will be able to get the Senate on board as well.
Where Do Drones Fit Into All of This?
The drone industry is in a unique position in that more, but flexible, regulation is widely seen as needed for growth to increase and Congress appears inclined to provide it. When industry leaders met with President Trump earlier in the summer, they argued that more regulation could open up commercial opportunities for beyond visual line-of-sight (BVLOS) operations, operations at night, operations over people, etc. Congress, for its part, has introduced numerous pieces of legislation in an attempt to provide the regulation the UAS industry has asked for. Just this year, the Drone Innovation Act of 2017, Drone Federalism Act of 2017, and the Safe DRONE Act of 2017 have been introduced in both houses of Congress.
Thus, it should come as no surprise that both the Senate Reauthorization bill and the 21st Century AIRR Act contain provisions meant to address some of the challenges currently facing the UAS industry. For example, both the 21st Century AIRR Act and the Senate Reauthorization bill include provisions that require the Secretary of Transportation to issue a final rule authorizing the carriage of property by operators of small unmanned aerial systems (sUAS) for compensation or hire. This could go a long way for companies like Amazon, Walmart and others who are looking to build out drone delivery services, and could open up doors for small businesses as well.
What Could an Extension Mean for Drone regulation?
When Congress returns on September 5, it will have 25 days to pass an FAA Reauthorization bill in both chambers. With the myriad priorities currently on Congress’s docket – health care reform, funding the government, the debt ceiling, improving the tax code, and putting together a budget just to name a few – it seems more likely that Congress will hammer out an extension instead.
The extension may contain some of the less controversial elements of both bills, which could be good news for drone legislation. Given the UAS industry is asking for more regulation, and several drone bills have already been introduced, it seems likely that Congress would aim to include at least some drone provisions in an FAA extension. In order to get a sense for what that might look like, we compared the Senate Reauthorization bill to the 21st Century AIRR Act and noted where they overlapped. We provide descriptions below for the overlapping provisions to get a sense of what we could expect to see in a FAA extension. You can access both bills here and here.
- UAS Test Sites: Both bills provide for the extension of the current program, allowing the UAS Test Sites to continue their research. The bills specifically direct the FAA Administrator to permit and encourage flights of unmanned aircraft equipped with sense-and-avoid and BVLOS systems at the test sites and ranges for continued research and development.
- Safety Standards: Both bills provide for a risk-based permitting process for sUAS based on safety standards developed by the FAA Administrator in the case of the 21st Century AIRR Act or by an aviation rulemaking committee in the case of the Senate Reauthorization Act.
- UAS in the Arctic: Both bills require the Secretary of Transportation to develop a plan to designate permanent areas in the Arctic where sUAS may operate twenty-four hours per day for research and commercial purposes including processes to facilitate BVLOS operations. They also permit the Secretary to enter into agreements with relevant national and international communities.
- Special Rules: Both bills direct the Secretary of Transportation to determine – based on a variety of factors such as size, weight, speed, etc. – if certain UAS may operate safely in the national airspace system (NAS) before the completion of a comprehensive plan or rulemaking. If the Secretary does determine that certain UAS may operate safely in the NAS, then the Secretary should decide whether a certificate or waiver is needed for these UAS to operate in the NAS, and the requirements for safe operation of such aircraft systems.
- Public UAS: Both bills direct the Secretary of Transportation to issue guidance regarding the operation of public UAS to (i) expedite issuance of certificates of authorization; (ii) provide for collaboration with public agencies to expand access to the NAS; (iii) facilitate the capability of public agencies to develop and use test ranges; and (iv) provide guidance on public agency’s responsibility when operating UAS without a civil airworthiness certificate. The Administrator should also develop and implement operational and certification requirements for public UAS.
- Model Aircraft: Both bills contain provisions that would prevent the FAA Administrator from promulgating new rules or regulation regarding unmanned aircraft operating as a model aircraft being flown strictly for hobby, within VLOS and in accordance with community guidelines, and that gives way to manned aircraft.
- Airports and Unsafe Operation: Both bills contain language regarding airspace safety and limiting UAS flight near airports, but the bills do differ in terms of specificity. The Senate bill contains a detailed section specifically for airport safety and airspace hazard mitigation, delving into the development of detection and counter-UAS technology. The 21st Century AIRR Act simply reiterates that unauthorized UAS operation near airports and collisions with manned aircraft presents a hazard to aviation safety, and that the Administrator should pursue all civil and administrative remedies – including referrals to other government agencies for criminal investigations – against those who operate unmanned aircraft in an unauthorized manner.
- Public UAS operations by Tribal Governments: Both bills contain an amendment that would add Tribal UAS to the definition of “Public Aircraft.”
- Carriage of Property: As mentioned above, both bills require the Secretary of Transportation to issue a final rule within one year of enactment authorizing the carriage of property by operators of sUAS for compensation or hire. Both bills stipulate that the final rule should provide for (i) a sUAS air carrier certificate and a corresponding certification process for those undertaking operations to carry property directly or by lease or other arrangement, and (ii) a classification system to allow sUAS air carriers to establish economic authority for the carriage of property.
- Roles of Government: Both bills call for a study on the roles of the Federal, State, Local, and Tribal governments in regulating UAS in the national airspace system. The studies called for differ slightly. For example, the study in the 21st Century AIRR Act is to be conducted by the Inspector General of the Department of Transportation while the study in the Senate Reauthorization bill is to be conducted by the Comptroller General of the United States. The 21st Century AIRR Act also specifies the study should focus on airspace 400ft above the ground, while the Senate Reauthorization bill directs the study to include potential gaps between authorities with regard to UAS operations at low altitude but allows for broader study beyond that as well.
- Educational: Both bills contain language stipulating that continued educational efforts for operators is essential for the safe operation of UAS, and provides that drones operated for educational purposes can be exempted from Administrator approval.