FAA Reauthorization Legislation 2023: Where Are We?

Every five years, Congress passes a bill to reauthorize full (or, in some years, interim) funding for the Federal Aviation Administration's (FAA) continued governance and regulation of the aviation industry, outlining the next steps the FAA can take to promote the growth and safety of U.S. aviation.  Timely FAA reauthorization is critical to ensuring that the FAA has the authority and funding that it needs to carry out its oversight, certification, strategic planning, and air traffic activities.

Both the House of Representatives (House) and the Senate are currently acting on legislation to reauthorize the FAA through September 2028. The most recent FAA reauthorization legislation was enacted in 2018 and will expire on September 30, 2023, so Congress is on a tight timeline.

House Committee Passed FAA Reauthorization Bill

On June 9, 2023, a 773-page bill called Securing Growth and Robust Leadership in American Aviation Act was introduced in the House Transportation and Infrastructure (T&I) Committee, with the support of the Committee Chairman Sam Graves (R-Mo.), Committee Ranking Member Rick Larsen (D-Wash.), Aviation Subcommittee Chairman Garret Graves (R-La.), and Aviation Subcommittee Ranking Member Steve Cohen (D-Tenn.). On June 14, the T&I Committee passed the bill by a unanimous vote of 63 to 0. That sent the bill to the full House, which will consider the bill in the upcoming weeks.

Highlights of the House FAA Reauthorization Bill

Among many things, the House bill incentivizes aviation innovation by integrating emerging technologies into the aviation regulatory framework. It seeks to enhance safety and security measures and management in areas such as aviation cybersecurity and unmanned aircraft systems. The bill also improves administrative efficiency and streamlines the regulatory process.

Highlights of the House bill’s provisions include:

Aviation Safety – General Provisions

• The bill adjusts rules governing the oversight of repair stations located outside the U.S. by, amongst other things, allowing the FAA to carry out announced or unannounced inspections and requiring airlines to provide informational reports to the FAA if an aircraft underwent heavy maintenance work outside the U.S. The bill also places restrictions on an airline’s ability to enter into a new contract for heavy maintenance with repair stations headquartered in or located in countries classified as not meeting ICAO standards (Category 2).
• The bill requires the FAA to issue a final rule relating to the Notice of Proposed Rulemaking (NPRM) of the FAA’s “Safety Management Systems” expanding safety management system requirements to small air carriers and commercial tour operators no later than 180 days after the bill’s enactment.
• The bill instructs the FAA to complete an assessment of the use of advanced tools used to certify aerospace products by no later than 30 months after the bill’s enactment.
• The bill requires the FAA to issue an NPRM to be titled ‘‘Transport Airplane and Propulsion Certification Modernization” within one year of the bill’s enactment.

Aviation Cybersecurity

• The bill finds that Congress has and continues to task the FAA as the agency responsible for securing national airspace against cyberthreats affecting aviation safety. The bill commits the FAA to promoting safe flights by prescribing minimum standards for cybersecurity and granting the FAA exclusive rulemaking authority to prescribe regulations to ensure aircraft cyber security.
• The bill instructs the FAA to establish a national airspace system cyber threat management process dedicated to protecting the national air space cyber environment.
• The bill instructs the FAA to create an aviation rulemaking committee on civil aircraft cyber security, which will be established within one year after the bill’s enactment.

Unmanned Aircraft Systems (UAS)

• The bill requires the FAA to issue an NPRM on Beyond Visual Line-of-Sight (BVLOS) within four months of the bill’s effective date.
• The bill instructs the FAA to study the final rule “Remote Identification of Unmanned Aircraft” to determine if UAS manufacturers can meet the final rule requirements through alternative means of compliance.
• The bill attempts to improve the Part 107 waiver process by, amongst other things, reviewing requests through a performance and risk-based approach, standardizing waiver applications, and making certificates of waivers publicly available.
• The bill instructs the FAA to establish acceptable levels of risk and risk assessment methodology to enable UAS operations within 180 days of the bill’s enactment.
• The bill requires the FAA to coordinate with other federal agencies to pave the way for carriage of hazardous materials by UAS to be incorporated into the existing regulatory framework.
• The bill instructs the Department of Transportation (DOT) to create a pilot program in which the FAA will use UAS to inspect FAA infrastructure.
• The bill instructs the FAA to establish a drone infrastructure inspection program grant program dedicated to using UAS to improve critical infrastructure and provide for grants to governmental entities to be used for that purpose.

Advanced Air Mobility

• The bill instructs the FAA, within three months of the bill’s effective date, to issue an NPRM which would establish procedures and rules to integrate powered-lift aircraft into the national airspace system and to update air traffic orders and policies to allow for this integration.
• The bill instructs the FAA to update applicable rules and regulations to support vertical flight infrastructure.

Other Provisions

• The bill continues to support updates made to national spaceports policy by instructing the FAA to update the policy every two years until 2028.
• The bill authorizes the DOT to make grants to eligible airport sponsors for certain spaceport infrastructure.

FAA Reauthorization Legislation Stalled in Senate

On the Senate side, a 461-page companion bill titled FAA Reauthorization Act of 2023 was introduced to the Senate Commerce Committee on June 13 by Committee Chair Maria Cantwell (D-Wash.), Ranking Member Ted Cruz (R-Tex.), Aviation Subcommittee leadership Chair Tammy Duckworth (D-Ill.) and Aviation Subcommittee Ranking Member Jerry Moran (R-Ky.). The Senate’s bill would authorize more than $107 billion in appropriations to the FAA from fiscal years 2024 through 2028.

The Commerce Committee was scheduled to mark up the bill on June 15. However, the mark-up session was postponed and no new date for it was announced.

We would like to thank our summer associate, Jasmine Masri, for her contribution to this alert.

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Crowell & Moring will continue to monitor the development of the FAA reauthorization legislation on the hill. Stay tuned for our full analysis once the final version of the Reauthorization Act passes.