Airport Alert: Final FY23 Spending Package Filed for House and Senate Consideration; Good News on Airport Priorities in Final Agreement

House and Senate appropriations leaders filed early on December 20 a 4,155-page, $1.7 trillion omnibus spending package that includes a long list of airport priorities and provides funding across the government for the remainder of the fiscal year that runs through September 2023. The massive package includes all 12 annual funding bills for the federal government, including the Department of Transportation/Federal Aviation Administration spending bill and the Department of Homeland Security/Transportation Security Administration/Customs and Border Protection spending measure. The package also includes emergency aid for recent natural disasters, as well as economic and security assistance for Ukraine. 
 
With federal funding set to expire at midnight on Friday, the Senate will now race around the clock to take up and pass the spending package over the next few days, although consent from all 100 senators is needed to expedite its passage, which is no sure thing. House Majority Leader Steny Hoyer (D-MD) has announced that the House will return to Washington on Wednesday night and will stay in session for as long as is needed to pass the omnibus and send it to President Biden to be signed into law. 
 
In terms of airport priorities, there is very good news to report. The bill includes nearly $4 billion for airport infrastructure projects “ $3.35 billion in 'regular' AIP funding and $558.6 million in supplemental AIP discretionary spending. Combined with funding from the Bipartisan Infrastructure Law, there is nearly $8 billion in funding available to airports in FY23 for important projects. The measure also includes funding for the TSA LEO reimbursement program and TSA exit lane staffing as AAAE requested “ costs that the administration had proposed to shift to airports.
 
We scored some victories for contract tower airports, too. The omnibus spending package includes almost a $10 million increase for the FAA Contract Tower Program in FY23. Lawmakers also added the CONTRACT Act to the measure to help address staffing challenges at contract towers. This AAAE and USCTA-backed legislation will allow controllers who retire from federal service to work as controllers at contract tower airports without impacting their federal annuity supplement.
 
Department of Transportation 
 
Funding for FAA Programs 
 
FAA: Overall, the final bill includes more than $19.02 billion for the FAA “ about $464 million above the administration's budget request and almost $564 million more than the FY22 funding level. 
 
Facilities and Equipment: The measure proposes more than $2.945 billion for FAA facilities and equipment, including NextGen programs. 
 
Operations: The bill includes $11.915 billion for FAA operations. 
 
Research, Engineering, and Development: The measure includes $255 million for research, engineering, and development, about $5.5 million less than the administration's request. 
 
Airport Improvement Program
 
Traditional Airport Improvement Program: The omnibus includes $3.35 billion for the traditional AIP account in FY23 “ the same as the current funding level. Of that amount, $137.4 million is designated for administrative expenses, $15 million for the Airport Cooperative Research Program, approximately $41 million for Airport Technology Research, and $10 million for the Small Community Air Service Development Program.  
 
AIP Discretionary Grants: The agreement directs the FAA to 'consider the full range of flight activities (such as flight training, air cargo, emergency response, pilot training, etc.) and associated metrics when considering AIP discretionary grants.' 
  
Continued EDS Prohibition: The omnibus continues the prohibition against the use of AIP funds for 'the replacement of baggage conveyor systems, reconfiguration of terminal baggage areas, or other airport improvements that are necessary to install bulk explosive detection systems.' 
 
Local Match: The omnibus maintains a narrow provision that allows small airports to pay the lower 5 percent match for any unfinished phased projects that were underway prior to the passage of the FAA Modernization and Reform Act of 2012.   
 
Burdensome Regulations: The joint explanatory statement accompanying the package 'recommends the FAA identify opportunities to eliminate unnecessary regulations and streamline burdensome regulations and identify areas where more autonomy can be given to local jurisdictions with a better understanding of needs and challenges in building and maintaining infrastructure.' 
 
Boarding Bridges: The statement directs the FAA to consult with the U.S. Trade Representative and the U.S. Attorney General to develop a list of entities that are: 1) foreign State-owned enterprises and 2) have been determined by a federal court to have misappropriated trade secrets of U.S. companies. 
 
NPIAS: The agreement 'directs the FAA to expeditiously review requests for entry into the NPIAS. Public-use airports that meet all applicable criteria and which have had significant and material investment from their local communities should be included in the NPIAS.' 
 
Noise: The agreement 'directs the FAA to ensure that AIP funds are made available to reduce the impact of noise on communities and on communities further from airports that experience highly repetitive overflights.' 

Supplemental Airport Improvement Program
 
Supplemental AIP: The omnibus includes approximately $558.6 million in supplemental AIP discretionary funding. Of that amount, approximately $283.6 million is reserved for earmarks, which are officially known as 'Community Project Funding' requests. For the remaining $275 million for discretionary grants, the omnibus specifies that at least $25 million is specifically designated for grants to commercial service airports located in non-attainment or maintenance areas for low-emission fuel systems, gate electrification, or acquisition of airport-owned vehicles or ground support equipment with low-emission technology. 
 
The omnibus also provides the Secretary of Transportation discretion to: 1) provide supplemental discretionary grants for the on-airport distribution, blending, or storage of sustainable aviation fuels, including for pipelines, rail lines and spurs, loading and off-loading facilities, blending facilities, and storage tanks; and 2) provide supplemental discretionary grants to primary, commercial service airports to increase operational resilience for the purpose of resuming commercial service flight operations following an earthquake, flooding, high water, hurricane, storm surge, tidal wave, tornado, tsunami, wind driven water, or winter storms.
 
Small Community Programs
 
Contract Towers: The final measure includes $187.8 million in dedicated funding for the Contract Tower and Contract Tower Cost Share Programs “ a new high and almost $10 million more than the current level. That increase would fund all contract towers currently in the program and allow the FAA to add other airports to the program during this fiscal year.  
  
The joint explanatory statement directs the FAA to 'provide flexibility to contract towers at small-hub airports with unique terrain and winter weather challenges so that each contract tower includes a minimum of two controllers during all regularly scheduled commercial flights, where permissible under current law.' 
 
CONTRACT Act: AAAE and USCTA worked aggressively in recent weeks to convince key lawmakers to add the CONTRACT Act (S. 419/H.R. 1283) to the omnibus spending package. The bipartisan and bicameral proposal will allow controllers who retire from federal service to continue working at contract tower airports without impacting their federal annuity supplement. 
 
Staffing at contract towers was a challenge even before the pandemic hit, but those workforce pressures are even more severe now. That is why we pressed Congress to pass the CONTRACT Act now instead of waiting until next year when lawmakers will begin debating the FAA reauthorization bill. 

Thanks to our allies on the Hill for successfully adding the CONTRACT Act to the omnibus appropriations bill. Special shoutout to Senator James Inhofe (R-OK), who is retiring at the end of this session, and Rep. Julia Brownley (D-CA) for leading the charge. Other original cosponsors including Senator Patty Murray (D-WA), Senator Jerry Moran (R-KS), and Rep. Rodney Davis (R-IL) were also incredibly strong advocates for the bill.
 
Essential Air Service: The final measure includes $354.8 million in discretionary funding for the Essential Air Service Program. Coupled with an anticipated $122.2 million in overflight fees, total funding for the program is expected to be almost $477 million in FY23. The joint explanatory statement also directs the GAO 'to provide a report on the current state of commercial air service to small airports, including the impact of COVID-19 and COVID-19-related financial assistance programs enacted by Congress.' The report is to include any recommendations to Congress and the DOT that would help maintain or increase commercial air service to small communities. 

Small Community Air Service Development: The final measure includes $10 million in AIP funding for the Small Community Air Service Development Program. This is the same amount that Congress approved for the program in FY22 and $10 million more than the administration requested. 

Noise and Environment
 
Transition from AFFF to Fluorine-free Foam (F3): The explanatory statement accompanying the omnibus includes AAAE-supported direction to FAA regarding the upcoming transition from AFFF to a F3 that mirrors similar language included in the reports accompanying the House and Senate FAA/DOT spending bills. In May, the U.S. Navy provided industry with an opportunity to comment on a draft MIL-SPEC for F3, signaling that DOD and FAA are making significant progress in finding a suitable replacement foam and are on track to meet the January 2023 deadline set in the FY20 National Defense Authorization Act for having an approved F3. However, without a proactive transition plan from FAA in collaboration with other relevant federal stakeholders, the transition from AFFF to F3 for airports will likely face numerous hurdles. The AAAE team worked closely with appropriators to press FAA to provide airports with the necessary guidance to ensure an orderly and cost-effective transition. 
 
The explanatory statement reads: 'Not later than 120 days after the date of the publication of the new military specification [MIL-SPEC] for firefighting foam, the FAA is directed to develop a transition plan for part 139 airports to use the MIL-SPEC. In addition to the requirements for the transition plan in House Report 117-402, the FAA shall also provide airports information on any supplemental equipment needed to utilize approved MIL-SPEC products.' 
 
Community Engagement and Noise: Lawmakers continued to focus on aircraft noise and community engagement. The omnibus provides an additional $1.3 million and four new positions for community engagement to address aviation noise issues. The additional funding will also go to technical and analytical support services to help address noise issues for communities that may not have such expertise themselves. 
   
Unleaded Avgas: The explanatory statement directs FAA to prioritize funding to test and identify unleaded fuels that can be safely used in piston-engine aircraft and are viable candidates for fleet authorization. It further requires a congressional briefing from FAA on any progress it has made on these pending applications. 
 
Voluntary Airport Low Emissions Program: The agreement notes that lawmakers expect the FAA to engage with airport sponsors at major hubs to identify projects suitable for the Voluntary Airport Low Emissions Program. 
 
New Entrants 
 
Advanced Aviation Infrastructure Modernization Act (AAIM) Act: The final version of the FY23 omnibus included a version of the AAIM Act, which passed the House in June. The AAIM Act authorizes a two-year, $25 million pilot program administered by DOT to provide planning grants to assist state, local, and tribal governments, metropolitan planning organizations, airport sponsors, transit agencies and port authorities plan for the development and deployment of vertiport infrastructure required for AAM operations. At least 20 percent of the funding made available will be designated for projects in rural areas. 

Advanced Air Mobility: The explanatory statement encourages FAA 'to provide a transparent framework and requirements to all stakeholders for the safe use of AAM in the future,' and 'recognizes that the FAA has committed to completing the proposed special Federal aviation requirement which will enable commercial operations and pilot licensing in a manner by December 31, 2024.' 
 
Unmanned Aircraft Systems: The explanatory statement directs FAA "to engage with UAS stakeholders to inform them of its proposed UAS BVLOS rulemaking schedule, the challenges associated with this rulemaking, and any differences between the proposed rulemaking and the BVLOS ARC's recommendations." Additionally, the statement directs FAA to brief Congress on: (1) its plans to align policies that do not require rulemaking, including issuance of waivers, with the proposals recommended in the BVLOS ARC report; and (2) its plans to issue guidance providing accelerated pathways to enable low-altitude operations under existing rules, such as standard 
scenarios or pre-defined risk assessments.'
 
UAS Test Sites: The bill includes $6 million for 'providing matching funds to commercial entities that contract with an FAA-designated test site.' 
 
Commercial Spaceport Infrastructure: The 2018 FAA Reauthorization Act required FAA to evaluate the Federal government's national security and civil space transportation needs and propose policies and programs to ensure a robust spaceport infrastructure. In addition to requiring FAA to submit this national spaceport policy to Congress, the explanatory statement directs FAA to also assess the effectiveness and suitability of existing infrastructure grant programs at DOT for supporting spaceport infrastructure. 
 
Miscellaneous
 
National Aviation Preparedness Plan Act: The final FY23 spending package also includes a version of the National Aviation Preparedness Plan Act, which passed the House in September. This legislation requires the Department of Transportation, in collaboration with the Departments of Health and Human Services and Homeland Security, to develop a national aviation preparedness plan to tackle future communicable disease outbreaks, as first recommended by the Government Accountability Office in 2015 following the Ebola outbreak. 
 
The bill also directs DOT to work with airports, air carriers, labor unions representing frontline at-risk workers, and other key aviation stakeholders on a plan to: provide airports and air carriers with an adaptable and scalable framework to align emergency response plans; identify appropriate personal protective equipment for aviation and Federal workers to reduce the likelihood of exposure; identify appropriate techniques, strategies, and protective infrastructure for the cleaning, disinfecting, and sanitization of aircraft and enclosed facilities; clearly delineate the responsibilities of sponsors and operators of airports, air carriers, and Federal agencies in responding to a communicable disease; and identify opportunities to develop and deploy emerging technologies and solutions to reduce communicable disease transmission.
 
Radio Altimeters and 5G: The explanatory statement directs FAA 'to immediately notify Congress of any anticipated disruptions to the aviation system due to further implementation of 5G and to continue its collaboration with other Federal agencies and industry stakeholders to mitigate disruptions caused by the 5G rollout in order to maintain a safe and efficient national airspace as additional telecommunications companies deploy 5G.' Furthermore, the statement directs the FAA to provide a briefing to Congress on current radio altimeter technologies, including filters and other redesigns to reduce their susceptibility to potential 5G interference, and the extent to which such technologies can accommodate all future desired uses of C-band spectrum adjacent to the radar altimeter band. 

Cost Free Space: The final bill includes a AAAE-backed proposal that would continue to prohibit the FAA from requiring airports to provide space free of charge in airport-owned buildings.   
 
Airport Cooperative Research Program: As mentioned above, the measure includes $15 million in AIP funding for the Airport Cooperative Research Program. 
  
Contract Weather Observers: The bill would continue to block the FAA from eliminating the Contact Weather Observers program at any airport. 
 
Aviation Workforce Development Grants: The bill includes $15 million for the Aviation Workforce Development Programs “ $5 million for the aircraft pilot workforce and $10 million for the aviation maintenance workforce. 
 
Permit Streamlining: The agreement encourages DOT to coordinate with project sponsors to use interactive and digital platforms where possible in meeting environmental review and community engagement requirements under the National Environmental Policy Act. The Secretary is directed to brief the appropriations committees within 180 days on its efforts to implement BIL and metrics needed to make the permitting process more effective, efficient, and transparent, including its efforts to reduce paperwork, improve efficiencies across modes, reduce timelines for completing environmental review, and determine whether digital platforms facilitate transparency and reduce the time needed to complete project permitting. 
 
Department of Homeland Security
 
Overall, the omnibus appropriations bill includes $60.7 billion in discretionary appropriations for DHS and its component agencies, including TSA and CBP. This amount is $4.05 billion above the budget request and is $3.2 billion above the FY22 funding level.
 
Transportation Security Administration
 
The bill provides a total of $9.324 billion for TSA, $722 million below the administration's request and $836 million above the FY22 funding level. The agreement does not include a request from the administration to allocate all aviation security fees directly to TSA instead of some being required for deficit reduction. 
 
Key funding recommendations for airport priorities include:
 
• $398 million for TSA pay parity to help address recruiting and retention issues.
• $60.6 million above the request to hire new Transportation Security Officers (TSOs).
• $94.1 million for TSA personnel to continue monitoring exit lanes at those locations where TSA monitored them on December 1, 2013, instead of shifting these costs to airports.
• $46.1 million for law enforcement officer reimbursement (LEO) grants, recognizing the important role the LEO reimbursement program has played in helping airports meet federally mandated airport security requirements. 
• $105.4 million to purchase and install approximately 108 computed tomography machines for passenger checkpoints at the highest risk airports. 
• $13.94 million to continue to reimburse airports for legacy purchases of in-line explosive detection systems.
• $22.3 million for credential authentication technology.
 
The joint explanatory statement that accompanies the bill contains the following notable items:
 
Supporting TSA Pay Parity: The omnibus includes $397.6 million to implement TSA personnel system initiatives in FY23 as compared to the $992 million requested by the administration. TSA is directed to brief the appropriations committees on a detailed plan to effectively measure the impact of these personnel system changes on TSO recruitment, hiring, and retention within 180 days.  

A press release from Senate DHS Appropriations Subcommittee Chair Chris Murphy (D-CT) highlights the bill's support of TSA pay parity, noting that this funding level will bring the TSA workforce pay on par with the rest of the federal workforce. He further states that 'this puts the TSA in a favorable position to address recruiting and retention issues while the agency works to respond to an increase in travel volumes and competes with other federal agencies and with other competitive job opportunities at federalized airports.'

Transportation Security Officer Staffing: The agreement provides $60.638 million for new TSO hiring. This funding level is about one-quarter of the administration's FY23 request, and it is unclear how many additional TSOs will be hired at this amount. Report language directs TSA to provide a briefing on TSO staffing levels using the most current payroll data available, combined with commensurate passenger volume and wait-time data, within 90 days and monthly thereafter. The statement of managers further directs TSA to ensure that future budget requests and briefings include a detailed forecast of passenger volume in relation to requested TSO staffing levels and specify projected operational efficiencies and passenger experience improvements resulting from the continued investment and deployment of new screening technologies. 

Exit Lane Staffing: The agreement rejects the administration's proposed move to shift exit lane staffing to airports and provides $94.1 million to TSA to meet its statutory obligations in this area. Within 120 days, TSA is directed to report on technological solutions to secure exit lanes and the feasibility of implementing such solutions. 
 
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