FAA Reauthorization Bill Passage

Posted 10/05/18 (Fri)

NASAO (The National Association of State Aviation Officials) welcomes House and Senate passage of a compromise five-year FAA reauthorization bill- the FAA Reauthorization Act of 2018 (H.R.302). The Senate today followed the House’s action last week and passed this bill by a vote of 93-6, sending the bill to President Trump to be signed into law.

“NASAO commends Congress for passing a long-term FAA Reauthorization bill that recognizes the import role of our nation’s general aviation and small airports; makes much-needed and long overdue reforms; and provides funding certainty to critical programs,” said NASAO Interim President and CEO John Shea.

“Today is a landmark day for general aviation. We thank not only the chairmen and ranking members of the transportation committees in both chambers for their leadership in working together on consensus, bipartisan legislation, but also the membership of these committees for dedicating their time over the past two years to making FAA reauthorization a reality without privatizing our nation’s air traffic control system,” added Shea.

“We applaud the new supplemental funding authorization of roughly $1 billion per year targeted towards small and rural airports; these funds have the potential to bring much needed improvements to our nation’s small airports and to infuse an economic revival in many rural areas. We look forward to working with the House and Senate Appropriations Committees to make this funding a reality,” said Shea. “Our membership, the states’ aviation and transportation agencies, also look forward to continuing to work with DOT and FAA on identifying the airports and projects that are the most critical to meeting state, regional, and national needs and that will ensure that we continue to enjoy the safest and most efficient air transportation system in the world.”

Other significant provisions of H.R. 302 that will benefit the nation’s airports include: reforms to the Non-Primary Entitlement Program, expansion of the State Block Grant Program, reforms to the Contract Tower Program, alternatives for runway pavement specifications, reauthorization of the Essential Air Service and Small Community Air Service Development Program, and several provisions related to Unmanned Aircraft System and Unmanned Traffic Management.

 

 

The five-year bill will expand eligible uses of federal grants at airports, create new protections for passengers on commercial airlines, expand oversight of the Next Generation (NextGen) technology upgrade program, streamline aircraft certification procedures, and further regulate the use of drones.

The bill includes many provisions that will benefit NASAO Members including:

• Expansion of the State Block Grant program from ten to twenty states (providing for a larger and more effective block grant coalition)
• Allowing states to use alternative pavement specifications in place of those prescribed by the FAA (which should result in significant cost-savings);
• In Block Grant States, airports' expiring Non-Primary Entitlement (NPE) funds will retunr to their states' apportionment to ensure those funds are retained for general aviation airports in the respective states.
• Ensures that expiring NPE funds in Non-Block Grant States are made available only to other general aviation airports on a discretionary basis.
• Positive improvements to the Contract Tower Program, most significantly to benefit / cost calculations
• Environmental streamlining (General Aviation airports' construction or improvement projects are now subject to the previously established coordinated and expedited environmental review process that has benefitted larger airports)

Airport Improvement Program Grants

 

AIP is authorized at $3.35 billion each fiscal year through 2023.

 

The bill makes several changes to AIP funding for smaller airports.

 

It extends a modified funding formula for small airports that had 10,000 or more passenger boardings in 2012, but had air service and fewer than 10,000 boardings during the calendar year used to calculate the apportionment for fiscal 2018, 2019, or 2020. The modification is slated to expire after fiscal 2018. The modified formula can't apply more than three years in a row unless the airport has almost 10,000 boardings and is working to attract more passengers.

 

The minimum apportionments for airports with 8,000 or more boardings, but less than 10,000 boardings, is $600,000.

 

Seasonal airports with at least 8,000 passenger boardings per year will receive the same apportionment as nonhub primary airports.

 

New Grant Program

 

The bill establishes a new discretionary grant program for airports. It would authorize $1.02 billion for grants in fiscal 2019, increasing to $1.11 billion in fiscal 2023. Note: These funds will still need to be appropriated.

 

At least 50 percent of the funds would have to be used for nonhub and small hub airports, as well as general aviation airports.

Privatization Pilot

The bill eliminates the cap on an airport privatization pilot project. It's currently limited to 10 airports, though few have completed the process.

Under the legislation, a sponsor could apply to operate multiple airports in a state.

Airport sponsors can receive as much as $750,000 for application preparation costs. Airports with approved applications in fiscal 2019 can receive discretionary grants for airport development costs.

Air Traffic Control

Airports can transfer air traffic systems that they purchased using federal funds to the FAA.

The FAA will have to develop a plan to provide approach control radar at airports that don't currently have it.

The FAA can't realign or consolidate facilities with terminal control and radar towers if at least 40 percent of the facility's terminal control operations in 2015 were for the military.

The FAA can't discontinue the contract weather observer program at any airport before Oct. 1, 2023.

Remote Towers

The FAA will have to establish a pilot program to test the use of remote towers. It will have to involve at least two remote tower system vendors. The FAA will have to consider using the towers for one nonhub airport, three airports without control towers, one airport that participates in the Contract Tower program, and one other airport. The pilot would end after fiscal 2023.

Once the FAA has developed a process to certify remote towers through the program, it will have to establish a process to authorize additional towers. Remote towers will be eligible for AIP funding.

NextGen

The FAA will have to prepare a report on the status of its NextGen technology upgrade program. Delays with the program were one of the concerns that led Chairman Shuster to propose privatizing air traffic control in previous FAA reauthorization bills.

The FAA will have to report annually on the return on its investment in the NextGen program. Based on the reports, it will have to develop a NextGen priority list.

The legislation will establish a chief technology officer position that would report to the chief operating officer. The new position will oversee the operation, maintenance, and security of current air traffic control systems and the adoption of new systems.

The bill establishes a pilot program to prioritize aircraft with certain NextGen-compatible equipment for air traffic control services at three or more airports. They will receive sequencing priority and shorter ground delays.

Contract Towers

The bill modifies rules on FAA Issuing Benefit/Cost Analyses

• Except for airports in the cost-share program, the FAA is prohibited from conducting benefit/cost (b/c) analyses on airports in the FAA Contract Tower Program unless air traffic activity at a contract tower airport drops by more than 25 percent in a single year or more than 55 percent of a three year period.
• Cost-share contract towers will have b/c analyses conducted annually.
• The FAA is required to issue a b/c analysis within 90 days for airports that have applied to participate in the contract tower program as well as those currently in the contact tower cost-share program that have requested an updated b/c analysis.
• If FAA has not implemented a revised b/c methodology within 30 days after the enactment of the reauthorization bill, any air traffic control tower that had submitted an application to enter the program as of January 1, 2017, shall be approved for the program if the airport:
  • has a b/c of 1.0 or greater or
  • if the tower is eligible under criteria set forth in the FAA Establishment and Discontinuance Criteria for Airport Traffic Control Towers Report (dated August 1990; FAA-AOP-90-7)

Exclusion of Costs in the Benefit/Cost Analysis

• FAA can only include the following costs of the FAA to calculate contract tower b/c's:
  • 1) contract controller wages/benefits;
  • (2) FAA's actual telecommunication costs directly associated with the tower;
  • (3) FAA actual costs of purchasing/installing air traffic control equipment that would not have been purchased/installed except as a result of the tower;
  • (4) FAA actual travel costs associated with maintaining ATC equipment that is owned by the FAA and would not be maintained except as a result of the tower; and
  • (5) other actual costs of the FAA directly associated with the tower that would not be incurred except as result of the operation of the tower.

Margin of Error for Benefit/Cost Analysis

• Ten percentage points are automatically added to all contract tower b/c's to capture the non-quantifiable benefits of operating towers.
  • The current cap on cost-share payments is 20 percent.
  • This means that the maximum an airport can pay to participate in the contract tower cost-share program is 10 percent.

AIP Eligibility for Contract Tower Construction/Equipment

• Lifts the cap on AIP entitlement / state apportionment funds that an airport may use to construct and / or equip a FAA contract tower.

Contract Tower Cost Share Payment Exemption

• Exempts cost-share payments for those airports in the cost share program with more than 25,000 annual passenger enplanements in CY 2014.

Effective timing of Cost Share Payments by Airports

• If an airport is issued a new b/c ratio that is below 1.0 and does not wish to appeal, the cost share payment for the airport goes into effect 12 months after receipt of the new b/c.
• If the airport decides to appeal the new b/c, there is a total of 19 months from the initial receipt of the new b/c for the appeal/review process to when the final b/c is issued and cost share payment becomes effective.

Requests for Additional Hours and Staffing at Contract Towers

• FAA is required to respond no later than 30 days after the agency receives a formal request from an airport and ATC contractor for additional operational hours and increased staffing at contract towers.

The legislation makes several changes to the contract tower program, which allows private firms to operate air traffic control towers, and accounts for about half of the FAA's towers, according to the Congressional Research Service. If a tower's cost exceeds its benefit as calculated by the FAA, airports or local governments would have the opportunity to cover as much as 20 percent of the cost to keep it open.

Airports with more than 25,000 passenger boardings in 2014 will be exempt from cost-share requirements.

The bill requires the Transportation Department to calculate a benefit-cost ratio only when airport traffic drops, instead of annually, and increase the time before a state or local government is required to begin contributing to its costs.

Remote towers would be eligible for the program.

Airport sponsors that participate in the contract tower program could receive grants for nonapproach towers.

Essential Air Service

The legislation reauthorizes the Essential Air Service (EAS), which subsidizes flights to remote communities. It will continue to be funded through a combination of overflight fees -- charged to flights that cross U.S. airspace but don't land -- and withdrawals from the Airport and Airway Trust Fund.

It authorizes increased discretionary funding for each fiscal year from $150 million in FY18 to $172 million in FY2023. It also requires a GAO study on the effects of laws passed since 2010 related to the Essential Air Service (EAS) program.

The Transportation Department would be allowed to waive several EAS eligibility rules, and would be required to waive subsidy-per-passenger caps in some circumstances.

Small Community Air Service Development Program

The bill authorizes $10 million annually for the Small Community Air Service Development Program (SCASDP) from fiscal years 2018 through 2023. The program provides grants to communities to expand air service. $4.8 million of the $10 million authorized annually is for a newly-created Regional Air Transportation Pilot Program.

The legislation allows communities to apply for SCASDP grants for the same project once per 10 years. They could apply more frequently if they hadn't spent all their grant funding because of industry or environmental challenges or other circumstances. Currently, each project can only participate in the program once. As many as 40 communities per year could receive grants.

Unmanned Aircraft Systems

The bill codifies the UAS Integration Pilot Program (IPP) but requires the Transportation Department Secretary to notify Congress prior to initiating any additional rounds of agreements.

The bill repeals the Special Rule for Model Aircraft and creates a new framework for hobby aircraft. Section 349 of the bill sets rules for recreational operations of unmanned aircraft, including that the flyer keep the UAS away from other aircraft, keep it below 400 feet above ground level, and pass an aeronautical knowledge test.

The FAA is authorized to update requirements for drones flying under the model drone rule. The rule won't bar the agency from regulating drone registration or remote identification.

The bill gives the departments of Homeland Security and Justice limited authority to intercept dangerous drones (see below). The Energy and Defense departments have similar authority.

The Transportation Department will have to coordinate with the Defense Department to streamline the deployment of systems to protect the national airspace from hostile drones.

The FAA will have to develop resources for state and local governments on how to identify public safety threats from drones, and how to use drones to enhance law enforcement and emergency response.

The FAA will have to establish a pilot program to use remote detection or identification for enforcement against drones that don't follow regulations. Other government agencies can report drones that they suspected are not compliant. The program will end after fiscal 2023.

The FAA will help airports deploy technology to mitigate threats from drones.

The bill codifies a pilot program from the 2016 FAA reauthorization law to test counterdrone technology. The FAA can conduct tests at five airports, including one of the top 10 airports for boardings. Once certified, airports can acquire systems using AIP funds.

The bill authorizes the DHS and the DOJ to develop, test, and deploy equipment to counter drones, in coordination with the Transportation Department. It exempts DHS and DOJ counterdrone activities from the federal criminal code, including the Wiretap Act, the Computer Fraud and Abuse Act, and other statutes they could violate.

The departments can test and deploy counterdrone technologies at their buildings and other high-risk facilities, at events, on missions, or during investigations or emergency response activities. The Coast Guard can use them in maritime operations.

DHS and DOJ can detect and track drones without consent, including by intercepting electronic or oral communications. The department can then warn operators and disrupt or take over the drones' controls. The agencies could confiscate and destroy drones using reasonable force.

The Transportation Department will issue a final rule authorizing carriage of property by small drones for hire within one year of the bill's enactment.

The Transportation Department will have to publish information about all public drone operators that have received a waiver or other authorization on its website. It will have to publish all drone registrations once per quarter. It will have to describe how personal information collected by drones, including facial recognition data, would be used and protected.

Type Certification

The bill will modify the FAA's process for resolving disputes related to its certification of aircraft designs, referred to as "type certification."

The FAA will establish a milestone-based resolution process within 15 months of the bill's enactment. It will have to specify when technical issues should be elevated to higher levels of FAA management for resolution, and require applicants and the FAA to set a deadline to resolve the issue.

Other Certification and Safety Changes

The measure will require certain categories of helicopters to comply with fuel system crash resistance standards.

The FAA will:

• Establish a centralized safety guidance database within one year of the bill's enactment.
• Require a secondary cockpit barrier in all new aircraft that will be used for regional and major passenger service.
• Review current requirements for, and capabilities of, aircraft data systems for overwater flights, advanced cockpit displays, and emergency medical equipment.
• Consider updating its regulations for aircraft electronic systems to address cybersecurity and prevent tampering by passengers.
• Identify ways to improve its collection of data on regional and on demand ("part 135") planes.
• Establish a task force to recommend regulatory improvements for small, noncommercial airplanes ("part 91").
• Convene task forces on flight standards reform and regulatory consistency.
• Make changes to its requirements for designated pilot examiners if recommended by a rulemaking committee.

The bill prohibits requiring the use of fluorinated chemicals in firefighting foam.

The FAA will have to update its airport database to reflect current heliport and helipad locations used by air ambulance services, and require air ambulance helicopters to report more safety data to the FAA.

General Aviation

The measure will make several changes to operating requirements and funding for general aviation, which refers to all flights other than scheduled passenger service aboard air carriers.

The bill increases the duration of registration for noncommercial general aviation aircraft to seven years from three.

The FAA and the National Transportation Safety Board will have to review causes of general aviation accidents since 2000 and ways they could have been avoided.

General Aviation Airports

General aviation runway expansion and other construction projects can use an expedited environmental review process currently available for congested airports.

If general aviation airports haven't used all of their apportionment by July 1 of the fiscal year in which the funds would expire (generally three fiscal years after the funds were provided), the funds will be added to the Transportation Department's discretionary fund and can be only used for other general aviation airports.

Airman Certificates

The bill modifies the Pilot's Bill of Rights, passed in 2012 as Public Law 112-153, which sets procedures for pilots who have had their airman certificate suspended or revoked.

The FAA will provide portions of investigative reports to airmen subject to enforcement actions.

If the FAA wants to reexamine an airman, it will need to provide a justification.

If the FAA initiated an action based on evidence contained in a flight record and it received a request for the record from the individual under investigation, it will have to provide it. If the FAA didn't provide it, the individual under investigation can seek to have the complaint dismissed, unless there was good cause for not providing the information.

NOTAM Database

The FAA will be required to finish a program to improve its Notice to Airmen (NOTAM) database, which was included in the 2012 Pilot's Bill of Rights. NOTAMs provide information to pilots about hazards along flight routes and other considerations.

The measure will also require the FAA to include temporary flight restrictions in the NOTAM database.

The FAA can't take enforcement actions against individuals who violate a NOTAM, beginning 180 days after the bill's enactment, until the agency completes the improvement program. It also can't take enforcement actions against individuals who violate a NOTAM that wasn't posted before the plane took off. Violations related to national security, however, can be pursued.

Aviation Workforce

The Transportation Department will establish a program to provide grants of as much as $5 million per year in fiscal 2019 through 2023 for aviation workforce grants.

The FAA would have to issue a final rule to modernize aviation maintenance technician school regulations.

The FAA would have to establish a drone collegiate training program.

Space

The measure will authorize funds for the FAA's commercial space transportation activities from amounts for salaries, operations, and maintenance. The amount will be $22.6 million in fiscal 2018 and increase each year to $75.9 million in fiscal 2023.

The measure will create an Office of Spaceports within the Office of Commercial Space Transportation. It will support licensing activities for launch sites, improve infrastructure at public launch sites, provide technical assistance, and promote the space launch industry.

The FAA will have to designate a single point of contact within the Air Traffic Organization to coordinate with the associate administrator for Commercial Space Transportation.

The legislation authorizes a special rule for aircraft conducting commercial space support flights, which will be under a certificate authorizing carriage of people or property for compensation. It will authorize only support flights for training, testing, and research, which take off and land at the same site.

Other Provisions

State governments cannot collect a special tax, fee, or charge on any business at an airport unless the revenue would be used exclusively for airport purposes. The measure will apply to taxes that take effect after the bill's enactment.

The FAA will:

• Work with air shows, the general aviation community, stadiums, and large outdoor events to resolve scheduling conflicts related to flight restrictions.
• Provide guidance on when it is permissible for pilots and passengers to share expenses.

Provide air traffic services for large aviation events