II 118th CONGRESS 1st Session S. 905 IN THE SENATE OF THE UNITED STATES March 21, 2023 Mr. Lee introduced the following bill; which was read twice and referred to the Committee on Commerce, Science, and Transportation A BILL To prescribe zoning authority with respect to commercial unmanned aircraft systems and to preserve State, local, and Tribal authorities and private property with respect to unmanned aircraft systems, and for other purposes.

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. 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 44801 of title 49, United States Code (as added by section 3(a)(1)). (6) Local government The term local 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 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 44801 of title 49, United States Code. (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. 3. Federal Aviation Administration updates to navigable airspace (a) Definition (1) Immediate reaches of airspace definition Section 44801 of title 49, United States Code, is amended by adding at the end the following new paragraph: (14) 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. . (2) Navigable airspace 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 44801). . (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 government 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. 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. (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) 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. 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. 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. 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. (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. 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. 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 44801). ; (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 44801); 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 . 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 44801) 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 UTM. . 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.