Action Item: On July 15, 2016, President Obama signed into law H.R. 636, the FAA Extension, Safety, and Security Act of 2016 (“the Act,” Pub.L. 114-190). The Act extends the authorization of the Federal Aviation Administration’s (“FAA”) programs and taxes to fund those programs through September 30, 2017, at current funding levels. The Act also includes new and amended provisions related to integrating commercial small Unmanned Aircraft Systems (“sUAS”), a.k.a. “drones,” into the National Airspace System (“NAS”). This alert highlights the provisions of the Act related to safety, security, and drones.

Background

Authorization for the FAA programs and associated taxes expired on July 15, 2016, leaving Congress little time to develop a comprehensive reauthorization program. However, they were able to reauthorize basic FAA programs at current funding levels through the end of the next fiscal year while still adopting several new initiatives pertaining to security, safety, and drones, summarized below. The proposal by Congressman Bud Shuster, Chairman of the House Transportation and Infrastructure Committee, to privatize the Air Traffic Control Program was left on the cutting room floor.

Highlights of the FAA Extension, Safety, and Security Act of 2016

In addition to authorizing basic FAA programs through fiscal year 2017, Title I of the Act increases the authorization for the Essential Air Service Program in Alaska from $93 million to $175 million for each of fiscal years 2016 and 2017.

Title II of the Act contains a series of Aviation Safety Critical Reforms. These include the following key provisions:

• A process for conducting enhanced mental health screening for pilots;
• Reports to Congress on laser pointer incidents and increases in civil penalties for those aiming the beam of a laser at an aircraft to $25,000;
• Expansion of standards for crash-resistant fuel systems for civilian rotorcraft;
• Requires the FAA to give preferential treatment to the most qualified individuals applying to be air traffic controllers;
• Authorizes the General Accounting Office to provide to Congress an assessment of air carrier personnel regarding the assistance of persons with disabilities, and requires the FAA to issue a supplemental rulemaking regarding air travel accessibility;
• Directs the FAA, within 240 days of enactment of the Act, to develop a comprehensive and strategic framework of policies to reduce cybersecurity risks to the national airspace system, including the establishment of guidelines for the voluntary sharing of information between and among aviation stakeholders related to cybersecurity incidents, threats, and vulnerabilities;
• Expands FAA oversight of repair stations outside of the U.S. that conduct heavy maintenance work on part 121 air carrier aircraft; and
• Requires the FAA to provide enhanced training for flight attendants to recognize and respond to potential human trafficking victims.

Title III of the Act is separately titled, the “Aviation Security Act of 2016.” It includes the following highlighted provisions:

• Directs the FAA to expand the TSA Pre-Check Program by adding multiple private sector application capabilities to the program, including online enrollment, kiosks, tablets, or staffed laptop stations at which individuals can apply;
• Directs the FAA to conduct a comprehensive security risk assessment of all last point of departure airports with nonstop flights to the United States;
• Authorizes the FAA to donate security screening equipment to a foreign last point of departure to mitigate security risks to U.S. citizens;
• Authorizes the FAA to evaluate foreign countries’ air cargo security programs to determine if they provide a level of security commensurate with that required by the United States;
• Directs the FAA to establish a program to train authorities of foreign governments in air transportation security; and
• Establishes new security requirements for individuals with access to Secure Identification Display Areas within airports.

Subtitle B of Title II Includes Sections Applicable to sUAS (Drones)

The technology for developing unmanned systems in the NAS continues to rapidly evolve, fostering a new era of innovations as reported in a previous article, available here. The Act represents the FAA’s next step, albeit slight, in furthering integration of sUAS into the NAS.

For almost a decade, critics have been suggesting that the FAA was slow in implementing necessary legal and safety regulations for sUAS. As a result, the FAA Modernization and Reform Act of 2012, Public Law 112-95, sec. 332(b) directed the FAA to develop new regulations and expand sUAS access to the NAS. On February 23, 2015, the FAA released a Notice of Proposed Rulemaking concerning commercial use of sUAS, and on June 21, 2016, the FAA issued regulations on commercial sUAS through its Final Rule for Operation and Certification of Small Unmanned Aircraft Systems (“UAS”) Part 107, which becomes effective on August 29, 2016.

The relevant sUAS provisions within the Act are contained in Title II, Subtitle B §§ 2201-2213, summarized below:

• Definitions, including a new definition of a “test range” and clarifying weight of an sUAS to include “everything that is on board or otherwise attached to the aircraft”;
• Directs the FAA, in consultation with the National Institute of Standards and Technology (“NIST”), to convene industry stakeholders to develop consensus standards for remotely identifying owners and operators of UAS;
• Each manufacturer of a small unmanned aircraft shall make available to the owner at the time of delivery a statement on the safety of the aircraft;
• FAA is to enter into agreements with the Secretaries of the Interior, Agriculture, Energy, and the Administrator of FEMA to facilitate expeditious authorizations of safe UAS operations in support of firefighting operations and operations to restore utilities;
• Creates civil penalties of no more than $20,000 for individuals who operate an unmanned aircraft and knowingly or recklessly interfere with wildfire suppression or emergency response;
• FAA is to establish a pilot program for airspace hazard mitigation at airports and other critical infrastructure using unmanned aircraft detection systems;
• FAA is to establish guidance for granting emergency exemptions for UAS by civil or public operators in response to a catastrophe, disaster, or other emergency;
• FAA, in coordination with the National Aeronautics and Space Administration (“NASA”), shall develop a research plan and pilot program for UAS traffic management;
• FAA is to establish a process to allow applicants to petition the FAA to prohibit or restrict the operation of an unmanned aircraft in close proximity to a fixed site facility, e.g., energy facilities, oil refineries, amusement parks, etc.;
• FAA shall establish a process to grant individuals permission to operate a UAS beyond the visual line of sight of the operator to comply with federal, state, or local laws, e.g., to survey pipelines;
• Updates the UAS Research and Development Roadmap to include NASA and calls for cost estimates, schedules, etc., and the role of the UAS test ranges;
• Directs FAA, with NASA, to develop a program to conduct comprehensive testing or modeling of UAS colliding with other aircraft; and
• Directs FAA to enter into an agreement with the National Academies of Science to study the risks of integrating UAS into the national airspace system.

Notably, on August 2, 2016, FAA Administrator Michael Huerta announced that the FAA was currently working on a rule that would allow for the potential use of commercial UAS over populated areas, a significant hurdle to enhancing safe operation of sUAS in the NAS.

What the Act Doesn’t Provide

As noted again, efforts to privatize air traffic control came to naught during House-Senate negotiations. But, the concept of privatization remains controversial, and could resurface again next year.

Also worthy of noting are the provisions not included in the extension pertaining to sUAS. While the Act does offer glimpses of potential improvements in sUAS operations, the Act does not assuage arguments that short-term FAA extensions inhibit economic growth and that the sUAS rules are still too restrictive for various commercial uses. To illustrate, one of the most controversial aspects of current sUAS operations is that of the conflict in laws between the federal and local level (state or municipality). While the FAA has widely-recognized authority to regulate airspace within the NAS, Congress balked at the opportunity to expressly include in the Act provisions for federal preemption of any state laws which restrict sUAS operations. This could be viewed by many as a significant missed opportunity. As a result, airspace restrictions at the State and Municipal levels will remain subject to scrutiny and perhaps yet-to-be determined case law for those operators challenging under preemption grounds, resulting in a possible hindrance to economic progress as industries evaluate benefits and risk.

While Section 2209 directs the FAA to establish a process to allow applicants to petition the FAA to prohibit or restrict the operation of an unmanned aircraft in close proximity to a fixed site facility, the Act stops short of a blanket prohibition of sUAS operations over critical infrastructure facilities for purposes of national or homeland security. As a result, this only furthers the debate about whether sUAS actually pose a security risk as some national security experts have suggested. Consequently, stakeholders in the energy and critical infrastructure sectors should closely review the Act to determine if petitioning the FAA to prohibit or restrict the operation of an unmanned aircraft in close proximity to their fixed site facility may be in their best interests.

Conclusion

Congress has provided some stability to the operations of the FAA and critical U.S. air safety and security programs but a one-year extension means that the 115th Congress will have to revisit the critical issues left untouched by the Act. Industry stakeholders should review the provisions closely, monitor the FAA’s actions to implement the new law, and assess whether they want to develop proposals to be included in next year’s reauthorization.