[Congressional Record Volume 171, Number 209 (Thursday, December 11, 2025)]
[Senate]
[Pages S8663-S8665]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]



                   National Defense Authorization Act

  Ms. CANTWELL. Mr. President, I rise today to make a point clear, and 
that is that section 373 of this year's National Defense Authorization 
Act poses a serious risk to the aviation safety and should be removed.
  Last night, I came to the floor to raise alarm about this provision, 
and today I want to explain even more clearly why it is so dangerous 
and why it should be removed from this bill. This section, section 373, 
eliminates safeguards added after the January 29 DCA collision. It 
weakens essential military aircraft technology standards. It enshrines 
these lower standards into law. And it leaves the public less safe.
  The National Transportation Safety Board Chair, the head of the 
Agency investigating the crash, has called this provision, section 373, 
``A major step backwards from where we are today and an unacceptable 
risk to the flying public'' and she adds ``an unthinkable dismissal'' 
of the 67 families who lost loved ones. The families of Flight 5342 
have said section 373 does nothing meaningful to mitigate the risks 
that prove fatal for their loved ones.
  Senators Cruz, Moran, myself, and Senator Duckworth have pointed out 
in a joint statement that this provision needs to be stripped from the 
bill. We have worked on a bipartisan solution after much of the 
discussion and investigation by our committee, the committee of 
jurisdiction, the Commerce Committee, and said that in this ROTOR Act, 
we should pass these provisions that would help still make aviation 
safer.
  The families of 67 victims are facing their first holiday without 
their loved ones. They have spent the past year advocating for 
meaningful reforms that, as I mentioned, we passed out of the Commerce 
Committee. They deserve to see real safety reforms, not a reversal of 
progress made since the tragedy.
  Let me explain to my colleagues how we got here. Current FAA 
regulations require aircraft operating in busy airspace, including 
military helicopters, to be equipped with what is called ADS-B Out 
technology. That stands for Automatic Dependent Surveillance Broadcast, 
meaning that the vehicle should be broadcasting out its location.
  It is a critical safety technology. When transmitting, it is 
broadcasting

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an aircraft's precise location, making it easy for air traffic 
controllers and nearby pilots to locate it. Even though that was the 
law--and it was clear it should be the law for really important safety 
reasons--in 2019, the first Trump administration issued a rule allowing 
for a limited waiver for sensitive government missions to operate 
without this broadcast technology.
  The rule specifically stated that this exemption should not be used 
routinely. It was meant for genuine national security situations, not 
everyday operations, meaning that there was an extreme case, and they 
needed to use it for an extreme purpose.
  But the Army didn't do it for an extreme purpose. That is not how 
they treated the waiver. They abused the waiver. They operated 100 
percent of their helicopter flights in the National Capital Region 
airspace without ADS Broadcast technology transmitting out--not some 
flights, not most flights, every single flight.
  I believe the waiver never should have been granted--that in a 
crowded airspace, it was a ridiculous idea to think that military 
helicopters and commercial airlines could be within just a few hundred 
feet of each other. That makes no sense to me.
  Then on January 29, an Army Black Hawk helicopter on a training 
mission collided with American Airlines Flight 5342--obviously without 
its broadcast technology transmitting--and 67 people were killed: 60 
passengers, 4 crew members, and 3 soldiers on the helicopter. It was 
one of the deadliest aviation accidents in the United States in 
decades.
  What we learned, that the helicopters--we learned later, I should 
say--that the helicopters didn't have its broadcast equipment 
broadcasting out. It wasn't even fully functioning during the flight. 
And we learned that this wasn't some isolated incident, that the 
military had been flying in the busiest airspace in the country right 
next to a commercial airport in these flight paths for years without 
this requirement--or even in their exemption, being asked for, rarely 
used.
  Instead, they were routinely using the exemption. Why did the FAA 
even give them this exemption to be within a few hundred feet of 
commercial aircraft? Why did they believe that the military was going 
to only use it in extreme conditions? The NTSB investigation revealed 
that there had been over 15,000 close proximity incidents between 
commercial aircraft and helicopters near the DCA airport between 
October 2021 and December 2024.
  The warning signs were there; the data was there; and yet nothing was 
done. After the crash, the FAA and the Department of Defense finally 
did take action, I am sure, under the scrutiny of the public outcry in 
the disaster. They closed Helicopter Route 4 between Hains Point and 
the Wilson Memorial Bridge, the route where the collision occurred.
  They restricted nonessential helicopter traffic near DCA, and they 
required that when essential helicopter flights do operate in 
restricted areas, commercial arrivals and departures must stop. That 
was the recommendation after the crash. And critically, the FAA and DOD 
entered into an agreement requiring military aircraft operating in the 
DC airspace to broadcast via the ADS-B Out broadcast system.
  This was a direct response to the crash and the urgency of the 
recommendations by the NTSB. But those recommendations, those are being 
rolled back in this National Defense Authorization Act, in section 373. 
Instead of strengthening the standards in this underlying bill, which 
is what our committee and I am pretty sure the House Committee was in 
agreement, wanting to make even more improvements. We wanted to ensure 
that the military, the Army, was in compliance to improve the air 
traffic safety, but instead, we have a bill that weakens it.

  What does section 373 do to weaken it? Because I am not sure all my 
colleagues understand this. I think some people are complacent about 
aviation safety. There is no room for complacency. You have to 
understand what the language does, and you have to understand that 
giving them an exemption to begin with was a mistake and certainly 
trying to continue to get that exemption into law is also a mistake.
  Before the crash, the ADS-B Out was already required by Federal 
regulations for aircraft operating in a busy airspace such as the 
National Capital Region. The 2019 exemption for ``sensitive government 
missions'' was supposed to be limited, but the military, as I said 
earlier, abused it by flying 100 percent of their helicopter flights 
without this transmission.
  After the crash, the FAA entered into an agreement, and that is why 
we are so frustrated because, now, instead of strengthening the 
standards and closing the loophole, section 373 does the opposite. It 
codifies the ability to fly without ADS-B broadcast technology into 
Federal law.
  What was a regulatory exemption that could have been fixed by the 
FAA, instead now is becoming a congressionally sanctioned loophole on 
aviation that will make our airspace less safe. It is wrong-headed, and 
we should get it out of this bill.
  Under section 373, military helicopter flights can operate in the DC 
special flight rules area only with what I think some of my colleagues 
are thinking, this is really great. We will just make it the TCAS 
system. That is a standard that exists, and that is a traffic alert and 
collision avoidance system.
  So they think, oh, that is the system we are implementing into law. 
One big fat problem: The TCAS doesn't work under the conditions that 
led to this crash. TCAS, the traffic alert and collision avoidance 
system, is inhibited by design below 900 feet. So during the descent to 
avoid--basically, you are in a cabin with a pilot that is supposed to 
be focused on landing. You do not have alarm bells and all the whistles 
and everything that distract the pilot at this critical function.
  So it doesn't really operate below 900 feet. The DCA collision 
happened at 278 feet, while Flight 5342 was descending, so this alert 
system did activate, finally, 20 seconds before impact, and the crash 
still happened because it was too late. As Chair of the NTSB, Chair 
Homendy, wrote in her letter: ``A requirement limited to TCAS-
compatible warning systems would not ensure adequate safety for any 
aircraft in the DC airspace.''
  When are we going to listen to the investigators we pay to 
investigate why we had crashes and why people died? When are we going 
to listen to them and their recommendations? She continued, ``Section 
373(a) would roll back those broadcast requirements to the very 
conditions that existed in the DC airspace at the time of the accident, 
by allowing military aircraft to operate without ADS-B.''
  Section 373--you think, well, how could it get worse than that, now 
you are recreating the exact conditions of the accident. But it also 
includes a broad waiver authority. Any general or flag officer can 
waive even the most minimal TCAS requirements. This requirement that 
some of my colleagues put out a statement last night, going, Oh, we are 
good with this because it has TCAS in it. And now, we have the NTSB 
saying that makes no sense because it doesn't even function in the type 
of accident we are talking about. And now, even within the provision, 
it says, Oh, if you don't like that TCAS anyway, you can waive it 
because you have made a determination.
  Why is that so important? Because the military went to the FAA and 
said, ``We want an exemption for very, very limited use'' and then used 
it 100 percent of the time. So do we think they are really telling us 
an accurate statement when they say, ``Oh, we might want to get rid of 
TCAS too''? Well, I believe they will not use TCAS, and it doesn't 
function in the accident requirement anyway.
  The NTSB investigation has shown that the Army and other military 
departments do not understand the complexities of DC airspace or how to 
conduct a thorough safety risk assessment. And while section 373 
requires the Secretary of Transportation to sign off on any waivers, 
Chair Homendy wrote that this provides little real protection, that the 
language gives the military departments broader latitude with no 
meaningful input from the FAA. OK, so it just means the military can do 
whatever they want in the commercial airspace. The aviation industry 
and the affected communities are the ones that are going to continue to 
pay the price here.
  So let's be clear. The NTSB, our National Transportation Safety 
Board, in its own investigation, found serious maintenance failures 
across the

[[Page S8665]]

Army's helicopter fleet. The crash helicopter equipment was improperly 
installed and hadn't been working for more than 700 days. The Army 
never caught it. In fact, the helicopters in the battalion, 8 of 16, 
could not even transmit when required to do so because of maintenance 
failures. There is a really big issue that we are going to hear a lot 
more about in January from the NTSB, and that is that the altimeters on 
the helicopters were also unreliable.
  My sense is the NTSB is doing really important engineering 
investigative work now to find out why those altimeters were so off. 
This is important to know because, again, if we are going to pass a 
bill saying, ``Go ahead, military, operate in the commercial airspace'' 
and you don't even have good altimeters, it presents even more risk. 
When the NTSB tested three other Black Hawk helicopters over the 
Potomac, their barometric altimeters showed the helicopters 80 to 130 
feet lower than they actually were.
  So it just says that something is not working on these helicopter 
systems. Good investigative work--if you watch any of these shows, mid-
air collisions, any of these things that document what the NTSB does--
you will find that good engineering will come up with what is the 
problem with these helicopters on the altimeters, and they will tell us 
something important that we needed to know.

  But we should not be flying helicopters around close to commercial 
aviation space, within a few hundred feet, when we know they aren't 
even accurate. In a crash that happened at 278 feet, this kind of error 
is the difference between life and death. This is the same Army that 
section 373 would trust to conduct its own risk assessment and decide 
when it is safe to broadcast their location. Again, why are we allowing 
military helicopters to fly within a few hundred feet of commercial 
planes?
  The Lilley family, who lost their son, First Officer Sam Lilley in 
the crash, called out these waivers directly, stating, ``The National 
Security waivers allowed by this draft are deeply concerning. This bill 
addresses that with a window dressing fix that will allow it to 
continue setting aside requirements with nothing more than a cursory 
risk assessment.''
  Section 373 only applies to a training flight. It does nothing to 
address VIP transport operational missions or other military flights 
that happen around DC every day. Even if this provision were good 
policy, which is not, it would still leave the majority of military 
operations near commercial aircraft completely unaddressed.
  So what we have here is a provision that rolls back the post-crash 
requirements that were agreed to by the FAA. It codifies a Federal 
loophole that the military has already used, and basically, in an 
environment where a crash was caused, it substitutes a technology 
standard that didn't prevent the crash to begin with and is not the 
recommendation of the Agency charged with telling us what kind of 
improvement should be made. And it creates a broad waiver with no 
meaningful oversight.
  That is how we got into this situation. Let's say, for instance, 
there was a need for military aircraft up and down the Potomac close 
to--close to--the commercial flights. You would still set standards, 
and you would have oversight, but we had thousands of incidents of 
alarm bells going off, and nothing happened. Nothing happened to fix 
it. Nobody at the FAA, nobody at the military--nobody fixed it. And 
now, unfortunately, so many people have lost their loved ones.
  So what is in this bill is not safety reform. It creates the 
appearance of reform, but it is not. That is why Senator Cruz and I and 
Senators Moran and Duckworth have been working on comprehensive 
legislation, the bipartisan ROTOR Act, and would have loved that, 
instead, to be in this legislation. It is bipartisan. It basically is 
many of the recommendations that we have already heard from the 
National Transportation Safety Board that would make all of us, 
including those who fly on these flights, safer.
  The difference between our legislation and what they are talking 
about--well, as I mentioned, on January 29 the Black Hawk wasn't 
transmitting, so it was essentially invisible. We want to make sure 
that we know where flights are.
  Our bill would set a national standard to ensure safer separation 
between military and commercial aircraft, not just in Washington, DC, 
but everywhere--San Diego, Tampa, Norfolk, anywhere where military and 
civilian aircraft share the skies. The Flight 5342 families agree. They 
have said, ``We continue to call for swift passage of the bipartisan 
ROTOR Act, which is a strong first step in addressing comprehensive 
nationwide reforms to ensure the tragedy like Flight 5342 never happens 
again.''
  That is why we worked so hard. We are not even saying the ROTOR Act 
is the final piece. As I said, the NTSB will make more announcements in 
January in their recommendations and their findings. But I know this, 
we should not be passing the National Defense Authorization Act with a 
huge loophole that is putting the flying public at risk.
  I hope our colleagues will realize this and work together to get this 
provision out of the legislation. I hope that you will think about the 
67 families who lost their loved ones in this tragedy that was 
preventable. I hope that we will consider making sure that all our 
colleagues understand that transportation safety is not a one day on 
the job issue. It is a constant in which we have to be vigilant about 
why it is so important to follow the rules and make sure the flying 
public is safe.
  The stakes are too high. Let's not go backward on aviation safety. 
Let's get this section out of the bill, and let's pass the ROTOR Act.
  I yield the floor.
  I suggest the absence of a quorum.
  The PRESIDING OFFICER (Mr. Husted). The clerk will call the roll.
  The senior assistant legislative clerk proceeded to call the roll.
  Mr. THUNE. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.

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