by Russell A. Klingaman, Esq.
On April 19, 2016, the U.S. Senate approved its FAA Reauthorization Bill. The U.S. House of Representatives has its own Reauthorization Bill pending. The current FAA short-term reauthorization expires on July 15, 2016, giving Congress just a couple months to reauthorize FAA programs. If a comprehensive bill does not pass through Congress before the 7/15 deadline, another short-term reauthorization through the end of the year, or through early next year, is likely.
It has been several years since Congress has worked on such a vast array of substantial aviation legislation. And, it will probably be several years before any similar legislative work is done with the potential for such a broad impact on so many different members of the aviation community. In fact, it took seven years and 23 short-term extensions before the FAA reauthorization bill passed in 2012. That bill extended the FAA’s operations for just three years, and Congress is now working on this new reauthorization.
It is important to realize that the Senate Bill is just proposed legislation. Nothing in the Senate Bill will become a federal public statute unless it is approved by the House of Representatives, and signed into law by the President.
The benefit of making you aware of the new Senate aviation bill now – before it becomes law – is to give you the opportunity to address any concerns you might have about this proposed legislation with your elected officials, the FAA, and/or the leaders of aviation organizations you may belong to, such as AOPA, EAA, NBAA, AAAE, GAMA, as well as your state trade, business, airport associations, such as WATA, WBAA and WAMA.
Another reason why you should educate yourself about the proposed legislation now, is to take advantage of the opportunity to consider how, if it becomes the law, it might have an impact on your flying activities and/or your aviation-related business. As the Boy Scouts always say: “Be prepared.”
So, what is in the Senate FAA Reauthorization Bill that may be of interest to Midwest Flyer Magazine readers? Given that the bill is almost 400 pages long, this is a difficult question to answer properly. In fact, it is impossible to provide a complete summary and analysis of all of the different sections of the bill in this short article. (The full text of the bill can be found here: https://www.gpo.gov/fdsys/pkg/BILLS-114hr636eas/pdf/BILLS-114hr636eas.pdf.) I will try, nevertheless, to mention what I believe are some of the highlights.
First, readers should be interested to know that the bill provides $16.4 billion in total funding for the FAA for the 2017 fiscal year. This is slightly up from the $16.28 billion available for 2016. The bill provides funding for FAA/ATC operations (about $10 billion); increases spending on Airport Improvement Program (AIP) grants (from $3.35 billion in 2016 to $3.75 billion in 2017); provides $1 billion for NextGen; and provides $159 million for contract control towers.
The Senate Bill has a large number of sections dealing with unmanned aircraft systems (UAS)/drone safety and/or innovation. For instance, it will:
• Require all drone operators to pass an FAA-approved online aeronautical safety test before flying.
• Authorize an FAA pilot program and funding for the development of technology to intercept drones near airports and other critical infrastructure.
• Direct federal agencies to convene industry stakeholders to develop consensus standards for safety features to be built into drones to protect the public and users of the national airspace.
• Approve several established UAS test sites and direct research priorities, improved coordination with the FAA, and enhanced protections for proprietary information.
• Require the Department of Transportation to establish a UAS delivery air carrier certificate that would allow for package deliveries by drones.
• Direct the FAA to establish operating levels specific to “micro drones,” which weigh 4.4 lbs or less.
In addition to the large number of UAS/drone provisions, the Senate Bill includes many other items important to members of the general aviation community including:
• The “Pilots Bill of Rights 2” with reforms to the 3rd class medical certificate process for non-commercial pilots and an enhanced appeals process, including de novo review for pilots facing FAA enforcement.
• Ensuring the FAA makes progress on the transition to unleaded aviation fuel by requiring the agency to clearly identify alternatives to traditional aviation gasoline and adopt a process to ensure the safety of modifications to existing aircraft prior to the transition, including $7 million for ongoing research on an unleaded replacement for avgas.
• Requiring the FAA to assess each NextGen program and to provide a report to Congress on how the program can improve safety and efficiency, and to provide an estimated date that each program will have a positive return on investment for aviation users and the government.
• Requiring the FAA to follow up on recommendations made by the Department of Transportation’s Inspector General to improve NextGen transition management, mitigating risks, dealing with NextGen inoperability with foreign countries, and assessing NextGen acquisition practices.
• Requiring marking of certain small towers to enhance safety for low-altitude general aviation flying, like agricultural applicators.
• Providing a $400 million increase in funding for airport improvements (a 12% increase over the current funding level). As mentioned in the first paragraph, the Senate Bill – or some modified version of it – will not become law until subsequent action by the House of Representatives, and a signature by the President. At this time, it remains unclear how the House will proceed on its own FAA reauthorization legislation, which continues to be stalled due to objections to the contentious proposal that would move air traffic control operations out of the FAA to a private non-profit operation.
Bill Shuster (R-PA) has declared that he will continue pushing for the ATC privatization reforms. However, the proposal has faced significant opposition from elected officials in both the House and the Senate, as well as many interest groups.
The House has several options. One option is to simply pass the Senate Bill and send it to the President to be signed. Another option is to amend the Senate Bill and send it back to the Senate for further consideration. Another option is for the House to pass its own FAA bill (with or without the ATC privatization provision) and go to a conference committee with the Senate to resolve their differences.
It should be noted that the length of reauthorization is quite different between the House and Senate bills. The Senate Bill reauthorizes FAA programs only through September 2017, while the House Bill would reauthorize programs through 2022.
In the arena of aviation law making and spending, these are important times. As members of the aviation community, we owe it to ourselves, and our follow members, to pay attention to what is going on, what new laws are proposed, and what might happen if they are passed. If you don’t like what you see (or if you do like what you see and you don’t want to let it slip away), stay informed, speak up, and take action.
EDITOR’S NOTE: Russ Klingaman is a partner with the law firm of Hinshaw & Culbertson LLP in Milwaukee, Wis. As an instrument-rated private pilot and aircraft owner, he has a special interest in aviation law. Klingaman teaches aviation law at Marquette Law School and UW-Oshkosh, and is the immediate past-president of the Lawyer Pilots Bar Association. Klingaman handles a broad range of business disputes involving contracts and intellectual property. He also handles FAA enforcement cases and lawsuits involving serious personal injuries and/or property loss. Questions and comments about the foregoing topic may be directed to Russ Klingaman at firstname.lastname@example.org.