Senate Passes HR 3935 – FAA Reauthorization

Yesterday, the Senate concluded action on HR 3935, the Securing Growth and Robust Leadership in American Aviation Act, passing the bill by a vote of 88 to 4 (all nay votes were from Democrats). Earlier the substitute language (modified SA 1911) was adopted by unanimous consent. No other amendments were adopted. The bill will now go back to the House for action on the Senate’s amendment. That consideration will take place next week.

I reported yesterday that the House could take up the bill as early as today, but they are only meeting in pro forma session this moring, so consideration of the Senate version is not possible.

Just before adjourning yesterday, the Senate passed HR 8289, a bill to extend authorizations for the airport improvement program, to extend the funding and expenditure authority of the Airport and Airway Trust Fund, and for other purposes. That legislation passed by unanimous consent. While an official copy of that bill is still not available, the bill will, when signed by the President, extend the FAA’s authority through next week. This will allow time for the House to take up the Senate’s version of HR 3935. 

Review - Senate Continued Consideration of HR 3935 – FAA Reauthorization – 5-7-24

Yesterday, the Senate continued consideration of HR 3935, the Securing Growth and Robust Leadership in American Aviation Act. The tabled consideration of SA 1292 (the substitute language from September that I discussed Friday. Subsequently the Senate began consideration of a modified version of SA 1911, the substitute language proposed by Sen Cantrell (D,WA). A motion to close debate on SA 1911 was filed with a vote scheduled for Thursday.

Because it is unlikely that the HR 3935 will make it to the President’s desk before midnight Friday (it will have to go back to the House for consideration of the Senate amended version), this evening the House took up HR 8289 (introduced today), a “bill to extend authorizations for the airport improvement program, to extend the funding and expenditure authority of the Airport and Airway Trust Fund, and for other purposes." While I have not yet seen the language of the bill, this is almost certainly a short-term extension of the current FAA authorization. The House considered the bill under the suspension of the rules process and passed it by a vote of 385 to 19. The Senate will likely take that legislation up tomorrow or Friday.

Moving Forward

The Senate continued consideration today. More on that tomorrow.

 

For more information on yesterday's consideration of the bill, including changes to the substitute language, see my article at CFSN Detailed Analysis - https://patrickcoyle.substack.com/p/senate-continued-consideration-of - subscription required.

Review - Senate Moves to Debate HR 3935 – FAA Reauthorization

As I mentioned last night, yesterday the Senate voted to proceed with the consideration of on HR 3935, the Securing Growth and Robust Leadership in American Aviation Act, by a vote of 81 to 10. As with the earlier cloture vote, the opposition was evenly split between Democrats and Republicans. Debate will continue when the Senate returns from the weekend recess on Tuesday. The current 5-year authorization expires on May 10^th, 2024, so there may be a short term extension bill passed next week.

 

For more details about yesterday’s consideration of HR 3935, including a look at some proposed amendments of interest, see my article at CFSN Detailed Analysis - https://patrickcoyle.substack.com/p/senate-moves-to-debate-hr-3935 - subscription required.

Consideration HR 3935 – FAA Reauthorization –

Yesterday, the Senate resumed consideration of the motion to proceed to consideration of H.R. 3935. Sen Schumer (D,NY) entered a motion to close further debate on the motion to proceed to consideration of the bill. The vote on that cloture motion will take place when the Senate returns on March 30^th, 2024, after the vote on the Georgia N. Alexakis nomination.

The Senate actually started this process back in September, but it lead nowhere. At the time there were suggestions that Schumer was going to use the bill as a vessel for consideration of a clean continuing resolution while the House was trying to sort out how to proceed on the spending bills under Rep McCarthy (R,CA). At that time there had been one anti-Ukraine amendment submitted by Sen Vance (R,OH).

No new amendments have been submitted yet for consideration during the actual debate on HR 3935. The first amendment will almost certainly come from Sen Cantwell (D,WA) offering the reported version of S 1939 as substitute language for HR 3935. Additional amendments will be submitted, and some will be considered.

As I noted in a post on S 1939 there is an interesting counter-UAS provision in the Senate bill:

“Section 811 would amend 49 USC Chapter 448 by adding a new § 44813 Unmanned aircraft system detection and mitigation enforcement. The new section would prohibit anyone (other than certain government agencies and employees) from operating “a system or technology to detect, identify, monitor, track, or mitigate an unmanned aircraft or unmanned aircraft system in a manner that adversely impacts or interferes with safe airport operations, navigation, or air traffic services, or the safe and efficient operation of the national airspace system.” The term “adversely impacts or interferes with’ is not defined. Violators would be subject to a civil penalty of not more than $25,000 per violation. This prohibition would terminate on September 30, 2028.”

Senate Began Consideration HR 3935 – FAA Reauthorization

On Friday, the Senate began debate on the consideration of HR 3935, the Securing Growth and Robust Leadership in American Aviation Act. That debate continued on Saturday. Debate will resume on Tuesday. No amendments have been submitted. No real action will occur until the Senate comes back from their upcoming recess on April 29^th.

Review - Committee Marks Up S 1939 – FAA Authorization Act

Last week, the Senate Commerce, Science, and Technology Committee held an executive session to look at S 1939, FAA Reauthorization Act of 2023. Substitute language was considered, 81 amendments were proposed. The bill was approved (presumably after approving the substitute language and perhaps multiple additional amendments were adopted), and ordered reported favorably. Unfortunately, neither the Committee hearing web page (as is fairly typical for Senate markups), nor the press release provide any details about what amendments were adopted.

Moving Forward

Since this is one of those bills that is considered a ‘must pass’ bill, it will eventually be considered by the full Senate. Once the report on this bill is published, and we can see what changes were actually made, the Senate will actually take up HR 3935 [removed from paywall] the House version of the FAA Authorization. The language approved here will be substituted for the House language as the first amendment to be considered. I suspect that there will be some level of bipartisan support for this language. Once passed, the bill will almost certainly have to go to conference to work out differences with the House passed language.

 

For more information on the changes proposed, see my article at CFSN Detailed Analysis - https://patrickcoyle.substack.com/p/committee-marks-up-s-1939 - subscription required.

Review - S 1939 Introduced – FAA Reauthorization

Earlier this month, Sen Cantwell (D,WA) introduced S 1939, the FAA Reauthorization Act of 2023. In addition to the periodic reauthorization of various FAA programs, the bill includes aircraft cybersecurity provisions and unmanned aircraft system (UAS) requirements of concern here. UAS provisions include:

• Beyond visual line of sight flight rules,

• Prevention of tracking or interfering with unmanned aircraft,

• Extend DOJ and DHS counter UAS authority, and

• Allow UAS to transport hazardous materials.

Moving Forward

Cantwell is the Chair of the Senate Commerce, Science, and Transportation Committee. This means that she certainly has the influence to see this bill considered in Committee. Given that Sen Cruz (R,TX), the Ranking Member of the Committee is a cosponsor of the bill, there should be bipartisan support for this bill. We will have to see if the amendment process in Committee changes that support. This is one of the ‘must pass’ bills that the Senate deals with every year.

Typically, we would expect the House to pass their FAA reauthorization bill (HR 3935). Then the Senate would take up the bill and the first amendment (offered by Cantwell) would be to offer the language from this bill as substitute language. Then the amendment process would start. Once the amended House bill is passed, the bill would normally go to a conference committee to work out the differences between the two versions of the bill. With the current leadership upheaval in the House, it will be interesting to see if the ‘standard process’ is followed this year.

 

For more details about the provisions of the bill, see my article at CFSN Detailed Analysis - https://patrickcoyle.substack.com/p/s-1939-introduced - subscription required.

House Set to Pass Anti-UAS Provisions?

Yesterday I ran across (and was pointed to by a couple of readers) an interesting NBC News article that was headlined: “New law would give federal government the right to shoot down private drones inside U.S.”. I thought that it was an oddly timed article on a couple of bills that I had previously reviewed here (HR 6401 or S 2836), but I went on and read it anyway. It turns out that I was right and woefully wrong.

HR 302 – FAA Reauthorization

The article noted that the bill was part of the FAA reauthorization bill that will be considered in the House tomorrow. I quickly did a search on my machine for FAA reauthorization bills and came up with HR 4, which was passed in the House in April and awaits Senate action. That bill did not contain any anti-UAS provisions and would not be reconsidered in the House until the Senate took action.

So next I looked at the House Majority Leader’s schedule page and scanned down to Wednesday, and sure enough there was a listing for HR 302, the FAA Reauthorization Act of 2018. Its not listed in my files, so I have not covered it; odd.

Then I looked on the Congress.gov web site and found HR 302, the Sports Medicine Licensure Clarity Act of 2017 (well that explains why I did not cover it). The listing for HR 302 on that site contains no mention of the FAA nor UAS; something is starting to smell here.

So I go back to the Majority Leader’s page and click on the link provided there to HR 302 and low and behold I find a monstrosity; a very much amended version of HR 302 that is indeed renamed the FAA Reauthorization Act of 2018 that includes so much more.

One last thing to check, I go to the House Transportation and Infrastructure Committee web site and see what I can find there. On that site I find a press release on HR 302 that explains that:

“House and Senate Committee leaders tonight announced that they have reached a bipartisan final agreement on legislation that provides long-term stability and critical reforms to the Federal Aviation Administration (FAA) and transforms federal disaster programs to better prepare communities for disaster.  The agreement also includes a reauthorizations and reforms of the Transportation Security Administration (TSA) and the National Transportation Safety Board (NTSB).”

The press release concludes by explaining:

“The announced agreement includes the FAA Reauthorization Act of 2018, the Disaster Recovery Reform Act of 2018, a three-year reauthorization of the Transportation Security Administration (TSA), and a four year reauthorization of the National Transportation Safety Board. Also included in H.R. 302 are sports medicine licensure legislation, the BUILD Act of 2018, a requirement for an assessment of the situation in Syria, the Preventing Emerging Threats Act of 2018, and supplemental appropriations for disaster relief.”

UAS Provisions

The new bill greatly expands the number of UAS provision from those found in HR 4. The version of HR 4 that was passed in the House included 19 sections in Subtitle B of the Safety title of the bill. HR 302 includes 43 sections. Some of the interesting provisions include:

§363 – Prohibition regarding weapons [on UAS, with exceptions];

§364 – US Counter-UAS system review of interagency coordination processes;

§365 – Cooperation related to certain counter-UAS technology;

§366 – Strategy for responding to public safety threats and enforcement utility of unmanned aircraft systems;

§370 – Sense of Congress on additional rulemaking authority;

§371 – Assessment of aircraft registration for small unmanned aircraft;

§372 – Enforcement;

§376 – Plan for full operational capability of unmanned aircraft systems traffic management; and

§382 – Prohibition [flying over wildfires].

Counter-UAS Provisions

Division H of the bill is the Preventing Emerging Threats Act of 2018. This is essentially a combination of HR 6401 and S 2836 that I have addressed separately. It does contain the more restrictive ‘notwithstanding’ clause in the new §210G(a) that was found in the House bill; limiting the laws that may be ignored in the process of identifying, tracking and bringing down a threatening UAS.

Commentary

The NBC News article that started off the search for this bill with a number of vague or lacking definitions in the bill. I would have preferred to see some of those concerns addressed in the bill, but it is probably more appropriate for those details to be hashed out in the regulatory process required in the new §210G(d).

My specific concerns about the language in the Counter-UAS section of the bill have been addressed in my earlier posts about the two bills that form the basis of the provisions in HR 302. It is clear to me, however, that some sort of authority needs to be provided to address specific threats posed by weaponized UAS. I am not sure that this language is the best way to deal with that, but it is limited enough to be a decent first step.

I do have, however, a major concern with the way this bill is being slid through the House. The FAA provisions have been greatly expanded from those found (and debated) in HR 4. Those provisions have been worked out behind closed doors and likely have many problems associated with them. Pushing them through the House with 40 minutes of debate that will be mainly limited to congratulating the Chair and Ranking Member of the Transportation and Infrastructure Committee on their bipartisan coordination in putting this bill together is an egregious misuse of the suspension of the rules process.

This revised bill is, however, an excellent example of the old-fashioned, horse-trading legislative process that Tip O’Neal would have been proud of. The crafters just kept adding divisions to the bill until they bought off every committee chair and ranking member that might have objected to the bill. We will see how well their efforts have paid off tomorrow when this bill comes up for consideration early in the session, though I expect that the vote will come later in the day. The leadership apparently thinks that this will pass and I suspect that they are correct.

There is a good chance, however, that even if this bill slides through the House it will die in the Senate. There it takes only a single senator to object to the political shenanigans involved in this Frankenstein’s monster of a creation to stop the bill from being considered in any abbreviated forum. And there are a number of bomb-throwers in the Senate who might take objection to this bill.

S 1405 Introduced – FY 2018 FAA Authorization

Last month Sen. Thune (R,SD) introduced S 1405, the Federal Aviation Administration Reauthorization Act of 2017. This year’s bill includes one cybersecurity provision and a large number of provisions concerning unmanned aircraft systems (UAS). The UAS related items that may be of specific interest to readers of this blog include:

§2105. Analysis of current remedies under Federal, State, and local jurisdictions.

§2123. Small unmanned aircraft safety standards.

§2126. Additional rulemaking authority.

§2128. Special rules for model aircraft.

§2129. Authority.

§2133. Airport safety and airspace hazard mitigation and enforcement.

§2151. Federal and local authorities.

§2163. Unsafe operation of unmanned aircraft.

Cybersecurity

Section 4109 of the bill would require the FAA revise existing aircraft certification regulations to include {§4109(a)}:

• To address cybersecurity for avionics systems, including software components; and

• To require that aircraft avionics systems used for flight guidance or aircraft control be secured against unauthorized access via passenger inflight entertainment systems through such means as the Administrator determines appropriate to protect the avionics systems from unauthorized external and internal access.

The new regulations would be based upon work of the Aircraft Systems Information Security Protection Working Group as directed by Congress last year in §2111 of PL 114-190 (130 Stat 626).

Model Aircraft

Section 2128 of the bill adds a new §44808 (Special rules for model aircraft) to 49 USC. That section modifies and then codifies the model aircraft rules established in §336 of the FAA Modernization and Reform Act of 2012 (PL 1125-95, 126 Stat 77).

The ‘operational parameters’ in paragraph (a) have been expanded by including the following requirements for the model aircraft exemption {new §44808(a)}:

• Not flown beyond the visual line of sight of persons co-located with the operator or in direct communication with the operator;

• The aircraft is flown from the surface to not more than 400 feet in altitude, except under special conditions and programs established by a community-based organization; and

• The operator has passed an aeronautical knowledge and safety test administered by the Federal Aviation Administration online for the operation of unmanned aircraft systems subject to the requirements of section 44809 or developed and administered by the community-based organization and maintains proof of test passage to be made available to the Administrator or law enforcement upon request.

The FAA is further provided the authority to modify the operational parameters defined in the bill ‘as appropriate’. Paragraph (b)(2) provides an expansive list of considerations that the FAA might use to change those parameters.

Paragraph (d) of the new section provides the FAA with permissive authority to “promulgate rules relating to the registration and marking of model aircraft”. Furthermore, §2129 of the bill specifically re-instates the registration and marking requirements for small unmanned aircraft published by the FAA in December, 2015 and were recently vacated by the United States Court of Appeals for the District of Columbia Circuit in Taylor v. Huerta (No. 15–1495).

Regulation of UAS Operations

Section 2105 requires the Government Accountability Office (GAO) “a review of the privacy issues and concerns associated with the operation of unmanned aircraft systems in the national airspace system”. Additionally, it tasks the GAO with identifying “specific issues and concerns that may limit the availability of existing civil or criminal legal remedies regarding inappropriate operation of unmanned aircraft systems in the national airspace system” {§2105(2)}.

Section 2123 addresses setting safety standards for UAS. It would add a new §44803 to 49 USC (Small unmanned aircraft safety standards). It would require the FAA to establish a rulemaking advisory committee to develop recommendations for regulations to establish {§44803(a)(1)}:

• Risk-based, consensus safety standards related to the safe integration of small unmanned aircraft systems into the national airspace system (referred to in this section as ‘consensus safety standards’) that can evolve or be updated as appropriate; and

• A Federal Aviation Administration process for permitting, authorizing, or approving small unmanned aircraft systems and their operations based on the safety standards to be accepted by the Administrator under this section.

The FAA would then be responsible for implementing those recommendations by establishing a process for {new §44803(d)}

• The acceptance by the Federal Aviation Administration of consensus safety standards recommended;

• Permitting, authorizing, or the approving small unmanned aircraft systems makes and models based upon the consensus safety standards; and

• The certification of a manufacturer of small unmanned aircraft systems that has demonstrated compliance with consensus safety standards.

These safety standards would also specifically apply to model aircraft {new §44803(f)}.

Mitigating Unsafe UAS Operations

Section 2133 would add a new §44810 to 49 USC. That new section would require the FAA to “develop a plan for the certification, permitting, authorizing, or allowing of the deployment of technologies or systems for the detection and mitigation of unmanned aircraft systems” {new §44810(b)(1)}. The implemented plan would “allow appropriate officials of Federal, State, or local agencies requesting to utilize such technologies or systems to take steps to detect and mitigate potential airspace safety threats posed by unmanned aircraft system operations §44810(b)(2)}.

The section goes on to clearly state that the following federal statutes would not apply the operation of these ‘technologies or systems’ {new §44810(h)}:

• 18 USC 32 – Destruction of aircraft or aircraft facilities;

• 18 USC 1030 (the bill actually says ‘1031’, an obvious error) – Fraud and related activity in connection with computers;

• 18 USC Chapter 119 – Wire and electronic communications interception and interception of oral communications; and

• 18 USC Chapter 206 – Pen registers and trap and trace devices

Section 2163 would make it a federal crime to unsafely operate an ‘unmanned aircraft’. It would add a new section 39B to 18 USC. It would make it a federal offense to operate an unmanned aircraft in a manner that “knowingly or recklessly interferes with, or disrupts the operation of, an aircraft carrying 1 or more occupants operating in the special aircraft jurisdiction of the United States, in a manner that poses an imminent safety hazard to such occupants” {new §39B(a)}.

Committee Mark-Up

On June 29^th the Senate Commerce, Science, and Transportation Committee held a mark-up hearing that included the mark-up of S 1405. In that hearing 57 amendments, including substitute language from Chairman Thune, were offered and presumably adopted (though there is no indication on the Committee web site of the status of actions taken). The substitute language made no changes of significance to the provisions previously discussed. There was one amendment from Sen. Johnson (R,WI) that may be of specific interest here.

Johnson’s amendment would add a new §44816 to 49 USC, Unmanned aircraft systems in restricted buildings or grounds. This amendment mirrors current restrictions found in 18 USC 1752 against unauthorized entry of the White House or other grounds where the President (or other persons protected by the Secret Service) is present. It would apply similar legal penalties for flying UAS in such areas.

The amendment further expands upon the §1752 coverage by adding the phrase “impede or disrupt the orderly conduct of Government business or official functions” {new §44816(a)} with respect to UAS operations.

Violation of the new section would be punishable under 18 USC by fines and/or up to one year in prison, unless the offense included mounting a weapon on the UAS or caused serious bodily harm. Then the maximum sentence would be fines and/or up to ten years in prison.

Moving Forward

The FAA reauthorization is one of the ‘must complete’ actions for Congress each year, though that does not specifically apply to this particular bill. A House version of this bill has yet to be offered, but will ultimately happen. Each branch of Congress will pass their own version of an FAA reauthorization bill and a conference committee will iron out the differences. There is always the possibility of short-term continuing-authorization bills being passed.

Commentary

I am very happy to see that this bill provides not only authority, but specific requirements for the FAA to regulate the cybersecurity of aircraft control systems. I am disappointed, however, in the failure to require specific rules regarding the reporting of cybersecurity attacks (with an appropriate definition of what constitutes an attack) or the discovery of security vulnerabilities in avionics software or devices. Additionally, I would have liked to have seen a specific requirement for regulated air carriers and aircraft (and avionic system) manufacturers to be members of some sort of recognized cybersecurity information sharing organization.

The bill finally addresses one of the major issues related to enforcing UAS operation regulations, the fact that any attempts to immediately stop a UAS from illegal operation (not completely defined by this bill) would almost certainly involve violation of a number of federal criminal statutes.

I am not sure, however, that offering a blanket exemption to those laws is quite the right way to proceed. I would have preferred the bill to require the FAA to establish specific ground rules where such exemptions applied. The way that §2133 is written does not just limit the use of the developed ‘technologies and systems’ to the areas around airports. They would generally apply to any counter-UAS operations conducted by “Federal departments and agencies to detect and mitigate potential threats posed by errant or hostile unmanned aircraft system operations” {new §44810(a)} or more generally by “appropriate officials of Federal, State, or local agencies requesting to utilize such technologies” {new §44810(b)(2)}.

The Johnson amendment is an overly broad extension of current presidential security rules. While arguments could certainly be made to support allowing the Secret Service to control the use of UAS around the White House and presidential functions, the inclusion of the ‘orderly conduct of Government business’ language could have a chilling effect on freedom of speech and be a broad tool to counter civil disobedience usage of UAS.

Finally, there is curiously lacking any mention of potentially applying flight restrictions to UAS operations above or around critical infrastructure or other restricted areas. Actually, what I would prefer to see would be to specifically disallow the operation of UAS over or around facilities where the federal government currently regulates security (for example: CFATS, MTSA and CIP regulated facilities) with the specific permission of the facility owners/operators. This would avoid the vague definition of ‘critical infrastructure’.