April 2012
The United States Congress, back in February, passed and sent the Federal Aviation Administration Modernization and Reform Act of 2012 to President Obama, who signed it into law a few days later. It authorizes $63.4 billion for the FAA over four years, including about $11 billion toward the air traffic system and its modernization, and speeds up the change from radar to ATC based on GPS in the “Next Generation” system. The law also mandates an increase in access to airspace for military, business and privately owned drones.
Why, you might ask, reading now, should you be interested?
First off, there is much in it that will affect you as a pilot or an aircraft owner or even as a passenger in a jetliner; some good, some I’ll let you judge for yourself, and some that may trouble you, but we’ll get to in a moment. Second, its passage is historic in that it ends an agonizing period of extensions and stopgap measures under which the FAA has been operating since 2005. The 23 extensions of FAA’s budget since 2004 have kept things flying, but improvement of the nation’s aviation and airspace systems—whatever your opinion of the various bits and pieces, from NextGen, to commercial pilot fatigue rules, to rural airports guarantees—has been slowed by Congress’s failure to commit to longer-term funding for the FAA.
As anyone who has ever had to submit a budget for approval understands, a budget is actually just a plan. Things can still change, but getting the budget plan finished is the most important step in that process. With the plan now in place, things will evolve, driven by everything from FAA actions, to lobbying, to lawsuits.
When I first started hearing and reading about some of the Act’s provisions, I was worried as it includes what seemed to be scary things like Congress ordering the FAA to rush drones, aka unmanned aerial systems, into the national airspace, to say nothing about ordering up what seemed to be an astonishing number of new “czars” to be appointed by the FAA Administrator—or, I guess, Acting Administrator, as the last guy had to resign.
I had my worry and concern in the back of my mind over breakfast the other day with my friend Eddie as the deadline for writing this column loomed. But over coffee, a bagel and eggs Eddie’s calm, gentle and spiritual demeanor—hard won decades ago in service to our nation, and his wounding, in that little affair in Southeast Asia, as well as more recent medical nightmares survived—soothed me and left me with a glass-half-full attitude, rather than my normal “oh my gosh, what have they done now?” mindset. So much so that I came home and read the Act; the PDF I downloaded is 300 pages. (Okay, I had lots of coffee.)
After studying it I have to say that maybe, if we all pay attention, the glass will stay half full.
The bit about drones shows up in two sections, and I’m sure we’ll be hearing more about them as time passes. First, in a section called Title III: Air Traffic Control Modernization and FAA Reform (Sec. 320), Congress mandated the following: It told the FAA Administrator to develop plans to accelerate the integration of unmanned aerial systems into the National Airspace System, and to report to Congress on progress made in establishing special use airspace for the Department of Defense to develop detection techniques for small unmanned aerial vehicles. Congress also directed the Secretary of Defense to establish a process to develop certification and flight standards for military unmanned aerial systems at specified test sites.
Then in Title VI: Aviation Research (Sec. 607) Congress authorized the Administrator to assess unmanned aircraft systems; and establish three test sites, as two-year projects in sparsely populated, low-density Class G airspace to conduct testing to improve unmanned aircraft for safe integration into the National Airspace System.
Oh, it also directs the Administrator to make available, within one year of the Act’s signing, a five-year “roadmap” for introduction of drones into the National Airspace System to be published on the FAA’s website. Congress’s overall deadline, however, is “as soon as practicable, but not later than September 30, 2015 for the safe integration of civil unmanned aircraft systems into the national airspace system.”
The legislation separately includes another drone item, sure to garner the attention of environmentalists and attorneys, to designate permanent areas in the Arctic where drones weighing less than 55 pounds may operate 24 hours a day for “research and commercial purposes,” out of sight of their operators, including over-water flights to at least 2,000 feet.
I started counting how many times our senators and representatives used the word “safe” referring to operation of drones in the same airspace I’m flying around in, but lost count. Suffice it to say they said it lots. Congress defined that concept this way: “shall determine, at a minimum which types of unmanned aircraft systems, if any, as a result of their size, weight, speed, operational capability, proximity to airports and populated areas, and operation within visual line of sight do not create a hazard to users of … ) airspace system or the public or pose a threat to national security; and whether a certificate of waiver, certificate of authorization, or airworthiness certification under section 44704 of title 49, United States Code, is required for the operation of unmanned aircraft systems …”.
And then there is the use of the legal term “shall,” which we all know means “will.” Therefore, if the Department of Transportation and the FAA determine that drones “may operate safely in the national airspace system, the Secretary shall establish requirements for the safe operation of such aircraft systems in the national airspace …”. (Those italics are mine, not from Congress.)
Like it or not, we shall be sharing airspace with science-fictiony things flying about “piloted” by folks on the ground and far away. And if the “driverless” car Google is testing is any indication, maybe some will have no human “pilot” at all, anywhere. If you are so inclined, buying stock in companies specializing in autonomous robotic systems might
not be a bad idea.
What’s a pilot to do? Here’s what we can do as we get used to it:
• Stay informed and involved. If aviation matters to you, and you hope to aviate and pass that passion along to your descendants, become a more-involved citizen by following, with a critical eye, what the government is up to. After all, it’s your government operating on your behalf.
• Start asking if the rules that apply to you as a pilot, and to your aircraft, shouldn’t also apply to unmanned aircraft, which will be operated by military and law enforcement as well as commercial or nonprofit entities. By that I mean certification and maintenance of the aircraft as well as training and certification of the “pilots,” wherever they happen to be sitting. For instance, in all 300 pages of the FAA Modernization and Reform Act of 2012, I never saw any reference to flight instruction (or medical certification, for that matter) for the operators of such drones.
Meanwhile, there seemed to be good news for aviation and aviators in the legislation:
• Sec. 502 authorizes a person who has been substantially affected by denial of an airman certificate by an order of the National Transportation Safety Board, or the FAA Administrator, to seek judicial review in the appropriate U.S. Court of Appeals.
• Sec. 503 creates a process for the FAA to release, without the consent of the aircraft owner of record, engineering data relating to abandoned aircraft type certificates and supplemental type certificates for an aircraft, engine, propeller, or appliance to a person seeking to maintain the airworthiness of such aircraft.
• Sec. 518 establishes in the FAA an Aviation Safety Whistleblower Investigation Office to receive information about possible violations of aviation safety laws and regulations.
• Sec. 561 requires the FAA Administrator to give Congress a plan for overseeing federally-certified pilot training schools. It directs the Comptroller General to study and report to Congress on flight schools, flight education, and academic training requirements for certification of an individual as a pilot.
• Sec. 729 directs the FAA Administrator to allow an aircraft owner or operator who has volunteered for the transportation of an individual for medical purposes to accept reimbursement of fuel costs from a volunteer pilot organization. And in a second item for aviators who volunteer, Congress created the Volunteer Pilot Protection Act of 2011 (Sec. 1212) to exempt from liability a volunteer pilot who flies for public benefit an aircraft for which the volunteer was properly licensed and insured.
• And Sec. 733 amends the federal criminal code to prohibit the aiming of a laser at an aircraft or in its flight path and imposes a fine and/or prison term of up to five years.
Other good news included Sec. 433, which expresses the sense of Congress that U.S. airlines should offer discounts and flexible scheduling for all members of the U.S. military on active duty.
There were other interesting mandates and instructions in the Act not necessarily specific to pilots, as Congress also created layers of new bureaucracy. Maybe as a way to stay involved we should all call and write our individual congressional delegations to suggest folks we know who might be appointed to some of the new positions:
In Title III: Air Traffic Control Modernization and FAA Reform (Sec. 301) it established an Air Traffic Control Modernization Oversight Board, which will be appointed to provide specific oversight of FAA’s modernization activities. And Congress told the Administrator to appoint a Chief NextGen Officer, to implement all NextGen programs of the Department of Transportation (Sec. 302), and instructed the FAA (Sec. 303) to look into whether NextGen air traffic services provided by nongovernment entities would promote safety and improve
efficiency of the airspace.
David Hipschman is a private pilot and aircraft owner. He writes the Heading Bug column here, edits the National Association of Flight Instructors’ Mentor magazine, and also teaches journalism at the University of Florida in Gainesville, Fla. Send questions or comments to editor@www.piperflyer.com.
