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Floor Speech

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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 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 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.

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