[Congressional Record Volume 167, Number 137 (Monday, August 2, 2021)]
[Senate]
[Pages S5671-S5673]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
SA 2269. Mr. LEE submitted an amendment intended to be proposed to
amendment SA 2137 proposed by Mr. Schumer (for Ms. Sinema (for herself,
Mr. Portman, Mr. Manchin, Mr. Cassidy, Mrs. Shaheen, Ms. Collins, Mr.
Tester, Ms. Murkowski, Mr. Warner, and Mr. Romney)) to the bill H.R.
3684, to authorize funds for Federal-aid highways, highway safety
programs, and transit programs, and for other purposes; which was
ordered to lie on the table; as follows:
At the appropriate place, insert the following:
DIVISION ___--DRONE INTEGRATION AND ZONING
SECTION 1. SHORT TITLE; TABLE OF CONTENTS.
(a) Short Title.--This Act may be cited as the ``Drone
Integration and Zoning Act''.
(b) Table of Contents.--The table of contents of this Act
is as follows:
Sec. 1. Short title; table of contents.
Sec. 2. Definitions.
Sec. 3. Federal Aviation Administration updates to navigable airspace.
Sec. 4. Preservation of State, local, and Tribal authorities with
respect to civil unmanned aircraft systems.
Sec. 5. Preservation of local zoning authority for unmanned aircraft
take-off and landing zones.
Sec. 6. Rights to operate.
Sec. 7. Updates to rules regarding the commercial carriage of property.
Sec. 8. Designation of certain complex airspace.
Sec. 9. Improvements to plan for full operational capability of
unmanned aircraft systems traffic management.
Sec. 10. Updates to rules regarding small unmanned aircraft safety
standards.
Sec. 11. Rules of construction.
SEC. 2. DEFINITIONS.
In this Act:
(1) Administrator.--The term ``Administrator'' means the
Administrator of the Federal Aviation Administration.
(2) Civil.--The term ``civil'', with respect to an unmanned
aircraft system, means that the unmanned aircraft is not a
public aircraft (as defined in section 40102 of title 49,
United States Code).
(3) Commercial operator.--The term ``commercial operator''
means a person who operates a civil unmanned aircraft system
for commercial purposes.
(4) Immediate reaches of airspace.--The term ``immediate
reaches of airspace'' means, with respect to the operation of
a civil unmanned aircraft system, any area within 200 feet
above ground level.
(5) Indian tribe.--The term ``Indian Tribe'' has the
meaning given that term in section 4 of the Indian Self-
Determination and Education Assistance Act (25 U.S.C. 5304).
(6) Local government.--The term ``local'', with respect to
a government, means the government of a subdivision of a
State.
(7) State.--The term ``State'' means each of the 50 States,
the District of Columbia, and the territories and possessions
of the United States.
(8) Tribal government.--The term ``Tribal'', with respect
to a government, means the governing body of an Indian Tribe.
(9) Unmanned aircraft; unmanned aircraft system.--The terms
``unmanned aircraft'' and ``unmanned aircraft system'' have
the meanings given those terms in section 331 of the FAA
Modernization and Reform Act of 2012 (Public Law 112-95; 49
U.S.C. 40101 note).
(10) Unmanned aircraft take-off and landing zone.--The term
``unmanned aircraft take-off and landing zone'' means a
structure, area of land or water, or other designation for
use or intended to be used for the take-off or landing of
civil unmanned aircraft systems operated by a commercial
operator.
SEC. 3. FEDERAL AVIATION ADMINISTRATION UPDATES TO NAVIGABLE
AIRSPACE.
(a) Definition.--Paragraph (32) of section 40102 of title
49, United States Code, is amended by adding at the end the
following new sentence: ``In applying such term to the
regulation of civil unmanned aircraft systems, such term
shall not include the area within the immediate reaches of
airspace (as defined in section 2 of Drone Integration and
Zoning Act).''.
(b) Rulemaking.--
(1) In general.--The Administrator shall conduct a
rulemaking proceeding to update the definition of ``navigable
airspace''.
(2) Consultation.--In conducting the rulemaking proceeding
under paragraph (1), the Administrator shall consult with
appropriate State, local, or Tribal officials.
(c) Designation Requirement.--In conducting the rulemaking
proceeding under subsection (b), the Administrator shall
designate the area between 200 feet and 400 feet above ground
level--
(1) for use of civil unmanned aircraft systems under the
exclusive authority of the Administrator; and
(2) for use by both commercial operators or hobbyists and
recreational unmanned aircraft systems, under rules
established by the Administrator.
(d) Final Rule.--Not later than 1 year after the date of
enactment of this Act, the Administrator shall issue a final
rule pursuant to the rulemaking conducted under subsection
(b).
(e) Rules of Construction.--Nothing in this section may be
construed to--
(1) prohibit the Administrator from promulgating
regulations related to the operation of unmanned aircraft
systems at more than 400 feet above ground level; or
(2) diminish or expand the preemptive effect of the
authority of the Federal Aviation Administration with respect
to manned aviation.
SEC. 4. PRESERVATION OF STATE, LOCAL, AND TRIBAL AUTHORITIES
WITH RESPECT TO CIVIL UNMANNED AIRCRAFT
SYSTEMS.
(a) Findings; Sense of Congress.--
(1) Findings.--Congress finds the following:
(A) Using its constitutional authority to regulate commerce
among the States, Congress granted the Federal Government
authority over all of the navigable airspace in the United
States in order to foster air commerce.
(B) While the regulation of the navigable airspace is
within the Federal Government's domain, the Supreme Court
recognized in United States v. Causby, 328 U.S. 256 (1946),
that the Federal Government's regulatory authority is limited
by the property rights possessed by landowners over the
exclusive control of the immediate reaches of their airspace.
(C) As a sovereign government, a State possesses police
powers, which include the power to protect the property
rights of its citizens.
(D) The proliferation of low-altitude operations of
unmanned aircraft systems has created a conflict between the
responsibility of the Federal Government to regulate the
navigable airspace and the inherent sovereign police power
possessed by the States to protect the property rights of
their citizens.
(2) Sense of congress.--It is the sense of Congress that--
(A) in order for landowners to have full enjoyment and use
of their land, they must have exclusive control of the
immediate reaches of airspace over their property;
(B) the States possess sovereign police powers, which
include the power to regulate land use, protect property
rights, and exercise zoning authority; and
(C) the Federal Government lacks the authority to intrude
upon a State's sovereign right to issue reasonable time,
manner, and place restrictions on the operation of unmanned
aircraft systems operating within the immediate reaches of
airspace.
(b) Requirements Related to Regulations and Standards.--
(1) In general.--In prescribing regulations or standards
related to civil unmanned aircraft systems, the following
shall apply:
(A) The Administrator shall not authorize the operation of
a civil unmanned aircraft in the immediate reaches of
airspace above property without permission of the property
owner.
(B) Subject to paragraph (2), in the case of a structure
that exceeds 200 feet above ground level, the Administrator
shall not authorize the operation of a civil unmanned
aircraft--
(i) within 50 feet of the top of such structure; or
(ii) within 200 feet laterally of such structure or inside
the property line of such structure's owner, whichever is
closer to such structure.
(C) The Administrator shall not authorize the physical
contact of a civil unmanned aircraft, including such
aircraft's take-off or landing, with a structure that exceeds
200 feet above ground level without permission of the
structure's owner.
(D) The Administrator shall ensure that the authority of a
State, local, or Tribal government to issue reasonable
restrictions on the time, manner, and place of operation of a
civil unmanned aircraft system that is operated below 200
feet above ground level is not preempted.
[[Page S5672]]
(2) Exception.--The limitation on the operation of a civil
unmanned aircraft under paragraph (1)(B) shall not apply if--
(A) the operator of such aircraft has the permission of the
structure's owner;
(B) such aircraft is being operated directly within or
above an authorized public right of way; or
(C) such aircraft is being operated on an authorized
commercial route designated under subsection (c).
(3) Reasonable restrictions.--For purposes of paragraph
(1)(D), reasonable restrictions on the time, manner, and
place of operation of a civil unmanned aircraft system
include the following:
(A) Specifying limitations on speed of flight over
specified areas.
(B) Prohibitions or limitations on operations in the
vicinity of schools, parks, roadways, bridges, moving
locations, or other public or private property.
(C) Restrictions on operations at certain times of the day
or week or on specific occasions such as parades or sporting
events, including sporting events that do not remain in one
location.
(D) Prohibitions on careless or reckless operations,
including operations while the operator is under the
influence of alcohol or drugs.
(E) Other prohibitions that protect public safety, personal
privacy, or property rights, or that manage land use or
restrict noise pollution.
(c) Designation of Authorized Commercial Routes.--
(1) In general.--For purposes of subsection (b)(2)(C), not
later than 18 months after the date of enactment of this Act,
the Administrator shall establish a process for the
designation of routes as authorized commercial routes. No
area within 200 feet above ground level may be included in a
designated authorized commercial route.
(2) Application.--Under the process established under
paragraph (1), applicants shall submit an application for
such a designation in a form and manner determined
appropriate by the Administrator.
(3) Timeframe for decision.--Under the process established
under paragraph (1), the Administrator shall approve or
disapprove a complete application for designation within 90
days of receiving the application.
(4) Consultation.--In reviewing an application for the
designation of an area under this subsection, the
Administrator shall consult with and heavily weigh the views
of--
(A) the applicable State, local, or Tribal government that
has jurisdiction over the operation of unmanned aircraft in
the area below the area to be designated;
(B) owners of structures who would be affected by the
designation of a route as an authorized commercial route; and
(C) commercial unmanned aircraft operators.
(5) Denial of application.--If the Administrator denies an
application for a designation under this subsection, the
Administrator shall provide the applicant with--
(A) a detailed description of the reasons for the denial;
and
(B) recommendations for changes that the applicant can make
to correct the deficiencies in their application.
(6) Approval of application.--If the Administrator approves
an application for a designation under this subsection, the
Administrator shall clearly describe the boundaries of the
designated authorized commercial route and any applicable
limitations for operations on the route.
(7) Delegation.--The Administrator may delegate the
authority to designate authorized commercial routes under
this subsection to a State, local, or Tribal government that
has entered into an agreement with the Administrator under
section 8 with respect to an area designated as complex
airspace.
(d) Rules of Construction.--
(1) Significant safety hazard.--Nothing in this section may
be construed to permit a State, local, or Tribal government
to issue restrictions, or a combination of restrictions, that
would create a significant safety hazard in the navigable
airspace, airport operations, air navigation facilities, air
traffic control systems, or other components of the national
airspace system that facilitate the safe and efficient
operation of civil, commercial, or military aircraft within
the United States.
(2) Cause of action.--Nothing in this section may be
construed to prohibit a property owner or the owner of a
structure with a height that exceeds 200 feet above ground
level from pursuing any available cause of action under State
law related to unmanned aircraft operations above 200 feet
above ground level.
SEC. 5. PRESERVATION OF LOCAL ZONING AUTHORITY FOR UNMANNED
AIRCRAFT TAKE-OFF AND LANDING ZONES.
(a) General Authority.--Subject to the succeeding
provisions of this section, nothing in this Act shall limit
or affect the authority of a State, local, or Tribal
government over decisions regarding the designation,
placement, construction, or modification of an unmanned
aircraft take-off and landing zone.
(b) Nondiscrimination.--The regulation of the designation,
placement, construction, or modification of an unmanned
aircraft take-off and landing zone by any State, local, or
Tribal government may not--
(1) unreasonably discriminate among commercial operators of
unmanned aircraft systems; or
(2) prohibit, or have the effect of prohibiting, a
commercial operator from operating an unmanned aircraft
system.
(c) Applications.--
(1) Requirement to act.--
(A) In general.--A State, local, or Tribal government shall
act on any complete application for authorization to
designate, place, construct, or modify an unmanned aircraft
take-off and landing zone within 60 days of receiving such
application.
(B) Denial.--If a State, local, or Tribal government denies
an application for the designation, placement, construction,
or modification of an unmanned aircraft take-off and landing
zone, the State, local, or Tribal government shall, not later
than 30 days after denying the application, submit to the
commercial operator a written record that details--
(i) the findings and substantial evidence that serves as
the basis for denying the application; and
(ii) recommendations for how the commercial operator can
address the reasons for the application's denial.
(2) Fees.--Notwithstanding any other provision of law, a
State, local, or Tribal government may charge a fee to
consider an application for the designation, placement,
construction, or modification of an unmanned aircraft take-
off and landing zone, or to use a right-of-way or a facility
in a right-of-way owned or managed by the State, local, or
Tribal government for the designation, placement,
construction, or modification of an unmanned aircraft take-
off and landing zone, if the fee is--
(A) competitively neutral, technologically neutral, and
nondiscriminatory; and
(B) publicly disclosed.
(3) Rule of construction.--Nothing in this subsection may
be construed to prevent any State, local, or Tribal
government from imposing any additional limitation or
requirement relating to consideration by the State, local, or
Tribal government of an application for the designation,
placement, construction, or modification of an unmanned
aircraft take-off and landing zone.
(d) Judicial Review.--Any person adversely affected by any
final action or failure to act by a State, local, or Tribal
government that is inconsistent with this section may, within
30 days after the action or failure to act, commence an
action in any court of competent jurisdiction, which shall
hear and decide the action on an expedited basis.
(e) Effective Date.--The provisions of this section shall
take effect on the day that is 180 days after the final rule
under section 3(d) is issued.
SEC. 6. RIGHTS TO OPERATE.
(a) Prohibition.--
(1) In general.--Subject to subsection (b), a State, local,
or Tribal government may not adopt, maintain, or enforce any
law, rule, or standard that unreasonably or substantially
impedes--
(A) the ascent or descent of an unmanned aircraft system,
operated by a commercial operator, to or from the navigable
airspace in the furtherance of a commercial activity; or
(B) a civil unmanned aircraft from reaching navigable
airspace where operations are permitted.
(2) Unreasonable or substantial impediment.--For purposes
of paragraph (1), an unreasonable or substantial impediment
with respect to civil unmanned aircraft includes--
(A) a complete and total ban on overflights of civil
unmanned aircraft over the entirety of airspace within a
State, local, or Tribal government's jurisdiction; and
(B) a combination of prohibitions or restrictions on
overflights within airspace under a State, local, or Tribal
government's jurisdiction such that it is nearly impossible
for civil unmanned aircraft to reach the navigable airspace.
(b) Rules of Construction.--Nothing in subsection (a) may
be construed to prohibit a State, local, or Tribal government
from--
(1) adopting, maintaining, or enforcing laws, rules, or
standards that regulate unmanned aircraft systems below 200
feet above ground level; or
(2) prescribing emergency procedures for a civil unmanned
aircraft system descending into an area 200 feet above ground
level.
SEC. 7. UPDATES TO RULES REGARDING THE COMMERCIAL CARRIAGE OF
PROPERTY.
(a) Improving Regulations.--Section 44808 of title 49,
United States Code, is amended--
(1) by redesignating subsection (b)(5) as subsection (c),
and indenting appropriately;
(2) by redesignating subparagraphs (A), (B), and (C) of
subsection (c), as redesignated by paragraph (1), as
paragraphs (1), (2), and (3), respectively, and indenting
appropriately;
(3) by redesignating subsection (b)(6) as subsection (d),
and indenting appropriately; and
(4) in subsection (b), as previously amended, by adding at
the end the following new paragraphs:
``(5) Ensure that the provision of section 41713 shall not
apply to the carriage of property by operators of small
unmanned aircraft systems.
``(6) Ensure that an operator of a small unmanned aircraft
system is not required to comply with any rules approved
under this section if the operator is operating solely under
a State authorization for the intrastate carriage of property
for compensation or hire.
``(7) Ensure that the costs necessary to receive such an
authorization are minimal so as to protect competition
between market participants.
[[Page S5673]]
``(8) A streamlined application process that only contains
requirements minimally necessary for safe operation and
substantially outweigh the compliance costs for an
applicant.''.
(b) Clarification Regarding Preemption.--Section 41713(b)
of title 49, United States Code, is amended by adding at the
end the following new paragraph:
``(5) Not applicable to the operation of a civil unmanned
aircraft system.--Paragraphs (1) and (4) shall not apply to
the operation of a civil unmanned aircraft system.''.
(c) Exclusion From Definition of Air Carrier.--Section
40102(2) of title 49, United States Code, is amended by
inserting ``(but does not include an operator of civil
unmanned aircraft systems)'' before the period at the end.
(d) State Authorization for the Intrastate Carriage of
Property.--A State may not be prohibited from issuing an
authorization (and the Federal Government may not require a
Federal authorization) for the carriage of property by a
commercial operator of a civil unmanned aircraft that is
operating in intrastate commerce if the civil unmanned
aircraft is only authorized by the State to operate--
(1) within the immediate reaches of airspace; and
(2) within the lateral boundaries of the State.
SEC. 8. DESIGNATION OF CERTAIN COMPLEX AIRSPACE.
(a) Process for Designation.--
(1) In general.--Not later than 18 months after the date of
enactment of this Act, the Secretary of Transportation shall
establish a process under which a State, local, or Tribal
government may submit an application to the Administrator (in
a form and manner determined appropriate by the
Administrator) for the designation of an area as an area of
``complex airspace.'' Such process shall allow for individual
or collective designations.
(2) Timeframe for decision.--Under the process established
under paragraph (1), the Administrator shall approve or
disapprove a complete application for designation within 90
days of receiving the application.
(3) Review of application.--In reviewing an application for
a designation under this section, the Administrator may deny
the request if the State, local, or Tribal government does
not have--
(A) the financial resources to carry out the authority to
be granted under the designation; or
(B) the technological capabilities necessary to carry out
the authority granted to the State under the designation.
(4) Denial of application.--If the Administrator denies an
application for a designation under this section, the
Administrator shall provide the State, local, or Tribal
government with--
(A) a detailed description of the reasons for the denial;
and
(B) recommendations for changes that the State can make to
correct the deficiencies in their application.
(5) Approval of application.--If the Administrator approves
an application for a designation under this section, the
Administrator shall, upon the request of the State, local, or
Tribal government, enter into a written agreement with the
State, local, or Tribal government (which may be in the form
of a memorandum of understanding) under which the
Administrator may assign, and the State, local, or Tribal
government may assume, one or more of the responsibilities of
the Administrator with respect to the management of civil
unmanned aircraft operations within the area that has been so
designated.
(b) Agreements.--
(1) State, local, or tribal government responsibilities
under agreement.--If a State, local, or Tribal government
enters into an agreement with the Administrator under
subsection (a)(5), the State, local, or Tribal government
shall be solely responsible, and solely liable, for carrying
out the responsibilities assumed in the agreement until the
agreement is terminated.
(2) Termination by state, local, or tribal government.--A
State, local, or Tribal government may terminate an agreement
with the Administrator under subsection (a)(5) if the State,
local, or Tribal government provides the Administrator 90
days of notice.
(3) Termination by administrator.--The Administrator may
terminate an agreement with a State, local, or Tribal
government under subsection (a)(5) if--
(A) the Administrator determines that the State, local, or
Tribal government is not adequately carrying out the
responsibilities assigned under the agreement; and
(B) the Administrator provides the State, local, or Tribal
government with--
(i) written notification of a determination of
noncompliance with the responsibilities assigned under the
agreement; and
(ii) a period of not less than 180 days for the State,
local, or Tribal government to take such corrective actions
as the Administrator determines necessary to comply with the
responsibilities assigned under the agreement.
(c) Complex Airspace Defined.--In this section, the term
``complex airspace'' means an area of airspace that--
(1) is at least 200 feet above ground level; and
(2) includes one or more structures that have a height that
exceeds 200 feet above ground level.
SEC. 9. IMPROVEMENTS TO PLAN FOR FULL OPERATIONAL CAPABILITY
OF UNMANNED AIRCRAFT SYSTEMS TRAFFIC
MANAGEMENT.
Section 376 of the FAA Reauthorization Act of 2018 (Public
Law 115-254) is amended--
(1) in subsection (b), by adding at the end the following
new paragraph:
``(4) Permit the testing of a State, local, or Tribal
government's time, place, and manner restrictions within the
immediate reaches of airspace (as defined in section 2 of the
Drone Integration and Zoning Act).'';
(2) in subsection (c)--
(A) in paragraph (2), by striking ``industry and
government'' and inserting ``industry, the Federal
Government, and State, local, or Tribal governments'';
(B) in paragraph (3)(G), by striking ``and'' at the end;
(C) in paragraph (4)(C), by striking the period at the end
and inserting a semicolon; and
(D) by adding at the end the following new paragraphs:
``(5) establish a plan for collaboration and coordination
with a State, local, or Tribal government's management of
unmanned aircraft systems within the immediate reaches of
airspace (as defined in section 2 of the Drone Integration
and Zoning Act); and
``(6) establish a process for the interoperability and
sharing of data between Federal Government, State, local, or
Tribal government, and private sector UTM services.'';
(3) in subsection (d)--
(A) in paragraph (2)(J), by striking ``and'' at the end;
(B) in paragraph (3), by striking the period at the end and
inserting ``; and''; and
(C) by adding at the end the following new paragraph:
``(4) shall consult with State, local, and Tribal
governments.''; and
(4) in subsection (g), by inserting ``and State, local, and
Tribal governments'' after ``Federal agencies''.
SEC. 10. UPDATES TO RULES REGARDING SMALL UNMANNED AIRCRAFT
SAFETY STANDARDS.
Section 44805 of title 49, United States Code, is amended--
(1) in subsection (a)--
(A) in paragraph (3), by striking ``and'' at the end;
(B) in paragraph (4), by striking the period at the end and
inserting ``; and''; and
(C) by adding at the end the following new paragraph:
``(5) ensuring that no State is prohibited from requiring
additional equipage for a small unmanned aircraft system so
long as such small unmanned aircraft system is solely
authorized to operate in the immediate reaches of airspace
(as defined in section 2 of the Drone Integration and Zoning
Act) and the lateral boundaries of a State.'';
(2) in subsection (e), in the matter preceding paragraph
(1), by striking ``may'' and inserting ``shall'';
(3) in subsection (j), by striking ``may'' and inserting
``shall''; and
(4) by adding at the end the following new subsection:
``(k) Requirements for Accepting Risk-based Consensus
Safety Standards.--
``(1) Cost-benefit analysis.--The Administrator shall not
accept a risk-based consensus safety standard under
subsection (a)(1) unless the Administrator has first
conducted a cost-benefit analysis and certified that the
benefit of the safety standard substantially outweighs the
costs to the manufacturer and consumer.
``(2) Must be essential.--The Administrator shall not
accept a risk-based consensus safety standard under
subsection (a)(1) unless the Administrator determines that
the safety standard is essential for small unmanned aircraft
systems to operate safely in the Unmanned Traffic Management
(UTM) System.''.
SEC. 11. RULES OF CONSTRUCTION.
(a) In General.--Subject to subsection (b), nothing in this
Act may be construed to--
(1) diminish or expand the preemptive effect of the
authority of the Federal Aviation Administration with respect
to manned aviation; or
(2) affect the civil or criminal jurisdiction of--
(A) any Indian Tribe relative to any State or local
government; or
(B) any State or local government relative to any Indian
Tribe.
(b) Enforcement Actions.--Nothing in subsection (a) may be
construed to limit the authority of the Administrator to
pursue enforcement actions against persons operating civil
unmanned aircraft systems who endanger the safety of the
navigable airspace, airport operations, air navigation
facilities, air traffic control systems, or other components
of the national airspace system that facilitate the safe and
efficient operation of civil, commercial, or military
aircraft within the United States.
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