FAA Reauthorization Watch: Provisions of Note for UAS and AAM Companies in the Senate Bill

On February 8, the Senate Committee on Commerce, Science, and Transportation passed a bill that would fund the Federal Aviation Administration (FAA) for the next five years. This marks the first good progress on FAA Reauthorization since the House of Representatives passed its own version last July. The Senate version of the bill was stalled in Committee, held up by a series of disagreements among Senators on issues affecting pilots, including training requirements and a mandatory retirement age. When no progress was made by the end of last year, Congress was forced to pass a second short-term extension bill to fund the agency through March 8, 2024.

FAA Reauthorization has long been controversial—the 2018 reauthorization package was the first five-year FAA package since 1982. Nevertheless, Congress does appear poised to pass another five-year package in the coming months. The next step for the Senate bill, S. 1939, is a full Senate floor vote. After that, we expect to see a negotiation between the House and Senate to reconcile their versions of the bill. This could take place in a formal conference committee process or, more likely, in behind-the-scenes negotiations. The final version will return to the House and Senate for approval and will finally make its way to the President’s desk for his signature. Timing on ultimate passage and conference negotiations remains unclear.

This alert provides a summary of key provisions in the proposed Senate bill related to Uncrewed or Unmanned Aircraft Systems (UAS) and Advanced Air Mobility (AAM), including summaries of the amendments approved by the Senate committee last week. Please contact the authors with any questions about the bill or the reauthorization process generally.

Provisions of Note Related to UAS and AAM:

Title II – FAA Oversight and Organization

Sec. 201 – Future of NextGen

• Specifies that any functions related to AAM will be transferred to the Office of Advanced Aviation Technology and Innovation (as established by Sec. 801).

Sec. 202 – Airspace Innovation Office

• Establishes Airspace Innovation Office within FAA to develop a plan for the continuous modernization of the National Airspace System.

Title IV – Modernizing the National Airspace System

Sec. 409 – Low Altitude Routes for Vertical Flight

• Directs the FAA to initiate a rulemaking to incorporate IFR rotorcraft operations into low-altitude performance-based navigation procedures and to prioritize the development of new “helicopter area” navigation instrument flight rules routes.

Sec. 410 – ADS-B Out Equipage Study; Vehicle-to-Vehicle Program

• Directs the FAA to initiate a study to determine the number of aircraft registered in the United States and other devices operating in the airspace of the U.S. currently unequipped with Automatic Dependent Surveillance-Broadcast (ADS-B) out equipment, requirements for and impacts of expanding dual-link architecture and the cost and benefits of ADS-B equipage. This section also directs the Administrator, in coordination with the National Aeronautics and Space Administration (NASA) and the Federal Communications Commission (FCC), to establish an interagency coordination program to advance Vehicle-to-Vehicle link programs.

Title V – Aviation Workforce

Sec. 501 – Aviation Workforce Development Grants

• Continues the FAA’s Aviation Workforce Development Grant Program, including awards for workforce development programs to support the recruitment, education and training of pilots, aerospace engineers and unmanned aircraft system operators. The section authorizes $10 million each year for fiscal years 2024 through 2028 for eligible subprograms to grow the development of the aviation workforce.

Title VI – Modernizing Airport Systems

Sec. 639 – Study on Autonomous and Electric-Power Track Systems

• Requires a study to develop a standard for autonomous and electric-powered track systems that are located underneath the pavement at an airport and allow a transport category aircraft to taxi without the use of the main engines of the aircraft.

Title VIII, Subtitle A (Unmanned Aircraft Systems)

Sec. 801 – Office of Advanced Aviation Technology and Innovation

• Establishes office responsible for spearheading cross-FAA efforts for the integration of advanced aviation technologies like UAS, powered-life aircraft, electric propulsion and supersonic/hypersonic aircraft.

Sec. 802 – Advanced Aviation Technology and Innovation Steering Committee

• Establishes a steering committee that will support the FAA’s plan to fully integrate Advanced Aviation Technologies into the National Airspace System.

Sec. 803 – Beyond Visual Line of Sight (BVLOS)

• Directs the FAA to launch and complete a rulemaking for a regulatory pathway to certify or approve unmanned aircraft systems enabling commercial BVLOS operations.
• Notes that the rulemaking should establish a risk assessment methodology, develop remote pilot certification standards, and determine airworthiness requirements.

Sec. 804 – Extending Special Authority for Certain Unmanned Aircraft Systems

• Extends FAA statutory exemption authority to continue enabling low-risk BVLOS and extended visual line of sight operations until the Sec. 803 rulemaking is complete.
• Provides for expedited exemptions for certain low-risk operations.

Sec. 805 – Environmental Review and Noise Certification

• Requires the FAA to publish UAS-specific environmental review guidance and implementation procedures.
• Requires examination and integration of programmatic-level approaches to the National Environmental Policy Act (NEPA) requirements for the commercial UAS industry to enable an efficient process for environmental reviews.
• Requires the FAA to coordinate with the Council on Environmental Quality to identify areas for categorical exclusion.
• Suspends existing notice certification requirements until final publication of new standards.

Sec. 806 – UAS Traffic Management (UTM) Implementation

• Requires the FAA to create a standard approval process for third-party service suppliers of UTM.

Sec. 807 – Operations Over the High Seas

• Requires the FAA to develop and implement an operational approval process for permitting small UAS and UAS with a special airworthiness certificate to operate over the high seas.
   - This would apply in flight information regions over which the U.S. has operational control.

Sec. 808 – Extension of the BEYOND Program

• Extends BEYOND program with the same terms and conditions.

Sec. 809 – Extension of the Know Before You Fly Campaign

• Extends campaign through 2028.

Sec. 810 – Unmanned Aircraft System Data Exchange

• Requires the FAA to develop and submit a plan to relevant Congressional committees regarding making data that is critical for the safe integration of UAS into the national airspace system available to the UAS community.

Sec. 812 – Recreational Operations of Drone Systems

• Amends 49 U.S.C. § 44809 to allow recreational drone users to operate above 400 feet in certain areas and conditions, subject to FAA approval.

Sec. 813 – UAS Test Ranges

• Permits the Administrator to add two additional UAS test sites, chosen through a competitive selection process.
• Enacts program reforms that include allowing receipt of non-FAA Federal funding and a broader range of research activities, testing innovative concepts that offer new safety benefits including developing an advanced aviation industrial base in the U.S., and expressly allowing for the establishment of restricted airspace areas.

Sec. 814 – Authority Regarding Protection of Certain Facilities and Assets from Unmanned Aircraft

• Extends counter-UAS authority of the Department of Justice and the Department of Homeland Security for an additional three years.

Sec. 815 – Airport Safety and Airspace Hazard Mitigation and Enforcement

• Reauthorizes the airport safety and hazard mitigation and enforcement authority of the FAA for five years.
• The authority includes the ability to evaluate counter-UAS technologies at five domestic airports that may monitor and mitigate potential aviation safety risks.

Sec. 816 – Special Authority for Transport of Hazardous Materials by Commercial Package Delivery Unmanned Aircraft Systems

• Requires the FAA to use a risk-based approach to establish the operational requirements, standards or special permits necessary for the safe transportation of hazardous materials by unmanned aircraft systems providing common carriage.

Title VIII, Subtitle B (Advanced Air Mobility)

Sec. 821 – Sense of Congress on FAA Leadership

• Expresses congressional sense that the U.S. should act to demonstrate its ability as a global leader in AAM.
• This includes prioritizing aircraft type certification, publishing rulemakings for operational rules for pilot certification and working with global partners to support acceptance of AAM.

Sec. 822 – Aviation Rulemaking Committee on Certification of Powered-Lift Aircraft

• Creates a timeline for the establishment of an Aviation Rulemaking Committee.
• The purpose of the Committee is to provide the FAA with findings and recommendations for creating a certification pathway for powered-lift aircraft.

Sec. 823 – Application of National Environmental Policy Act (NEPA) Categorical Exclusions for Vertiport Projects

• Requires the FAA to apply applicable categorical exclusions for vertiport projects at existing airports in accordance with NEPA.
• Requires the FAA to consult with the Council on Environmental Quality for vertiports at existing airports.

Sec. 824 – Advanced Air Mobility Working Group Amendments

• Amends the AAM Coordination and Leadership Act to mandate that the Act’s National Strategy include recommendations for expertise and data sharing on critical items, such as long-term electrification requirements and city needs for deploying AAM.

Sec. 825 – Rules for Operation of Powered-Lift Aircraft

• Requires the FAA to finalize the Powered-Lift Special Federal Aviation Regulation (SFAR) by Dec. 31, 2024.
• The regulation will establish a procedure for certifying pilots and the operation of powered-lift aircraft capable of transporting passengers and cargo.

Sec. 826 – International Coordination on Powered-Lift Aircraft

• Requires the FAA to develop a plan to help the U.S. aerospace industry efficiently operated powered-lift aircraft and export-related products globally.
• The plan should also include coordination with international civil aviation partners for relevant processes.

Sec. 827 – Advanced Air Mobility Propulsion Systems Aviation Rulemaking Committee

• Creates an Aviation Rulemaking Committee on AAM propulsion systems to provide the DAA with specific findings and recommendations for regulations.
• The regulations will cover small and large type certificated aircraft, the certification and installation of engines, propellers and propulsion systems (including electric, hybrid and hydrogen-fueled systems).
• Directs the FAA to engage with foreign authorities to coordinate related standards.

Title IX, Research and Development and Innovative Aviation Technologies

Sec. 902 – Center of Excellence for Unmanned Aircraft Systems

• Extends authorization of the center for the duration of the Act.
• Incorporates AAM research and development and ensures the participation of educational and research entities that offer undergraduate programs in related fields for pilot certifications and pilot training for women aviators.

Sec. 910 – Electric Propulsion Aircraft Operations Study

• Directs GAO to study the safe and scalable operation and integration of electric aircraft into the national airspace system.

Amendments of Note Related to UAS and AAM:

Blackburn 1

• Prohibits the FAA from providing federal funds to, procuring from, or operating with certain foreign drone companies.
• Requires the FAA to replace any such drones that it owns or operates with a U.S. or allied drone within one year and provide a report to Congress with the cost and number of violating FAA drones.
• Countries include China, Russia, Iran, North Korea, Venezuela, Cuba and other countries deemed necessary by the FAA Administrator.

Budd 23, as modified

• Adds requirements to the rulemaking for powered lift, including for the FAA to provide a practical pathway for pilot qualifications and operations.

Fischer-Duckworth 2

• Adds duties for the Office of Advanced Aviation Technology and Innovation to implement an online capability that lets stakeholders review the status of their certifications and approval applications and other relevant information.

Lujan 1, as modified

• Adds consideration of certain aircraft, such as hot air balloons, to the FAA rulemaking on BVLOS in low level airspace (to consider the maneuverability or technology limitations of such aircrafts).

Markey 15, as modified

• Requires consideration of the risk profile unique to UAS and relevant mitigations when establishing the risk-based approach for the safe transportation of hazardous materials by UAS.
• Requires UAS operators to submit safety risk assessment to the FAA for such transport.
• Requires DOT to obtain stakeholder input to implement the section and identify changes in risk.

Peters-Wicker 1, as modified

• Establishes sense of Congress for U.S. to maintain leadership in advanced aviation.
• Requires the FAA to create comprehensive strategy to safely integrate UAS into U.S. national airspace system.
• Requires the FAA to report to Congress regularly on implementation, starting 270 days after enactment.

Rosen 2, as modified

• Establishes a drone infrastructure inspection program within the Department of Transportation to enable the use of drones to support critical infrastructure projects.

Rosen 5

• Authorizes appropriations for UAS test ranges ($14M between FY24 and FY28).

Sullivan 3

• Allows for the use of any size UAS, not just small UAS, for Arctic research purposes.

Sullivan 14

• Amends Sec. 813 (UAS test ranges) to include solutions for counter-UAS testing in developing standards for the safe integration of UAS.

Thune 2, as modified

• Establishes an Office of UAS Integration with an Associate Administrator.

Young 1

• Requires the FAA to review and report to Congress on whether drone manufacturers and operators can meet the intent of the FAA’s remote identification rule through network-based remote identification within one year of enactment.

Young-Sullivan 2, as modified

• Permits recreational drone operators to operate the drone at any altitude in uncontrolled airspace.
• Permits the operator to seek FAA authorization to operate in controlled airspace when operating under the safety programming of a recognized community-based organization.
• Allows the community-based organizations to self-declare fixed sites.
• Permits community-based organizations to become FAA Trust Administrators.

Young 3

• Prohibits Department of Transportation from contracting with or awarding a grant for the operation, procurement, or contracting action of a foreign-made UAS.
• Provides exemptions for counter-UAS testing and aviation safety testing.
• Authorizes $5 million to replace any DOT UAS manufactured or assembled by a covered foreign entity.

Young 6

• Requires the FAA to create a comprehensive plan on UAS automation, in consultation with NASA, the Department of Defense and UAS manufacturers and operators.