June 30, 2017

This week, committees in the House and Senate each amended and approved bills reauthorizing the programs of the Federal Aviation Administration (FAA). But while the House bill passed on an almost completely party-line vote after a 10-hour partisan slog of a markup on June 27, the Senate bill breezed through committee yesterday by voice vote after only one hour of consideration.

There is one gigantic difference between the House and Senate bills – the House bill splits up the FAA in twain, turning air traffic control (ATC) services over to a private, non-profit corporation. The Senate bill does nothing of the kind.

Beyond that, there are a great many similarities between the House and Senate bills, but also a few key differences.

Senate markup. Opening statements were mercifully brief. Senate Commerce Chairman John Thune (R-SD) said that he was open to ATC privatization, but also understood the concerns around the proposal, to which ranking member Nelson (D-FL) replied that no matter what is occurring in the House, the support is not there in the committee or the full Senate for ATC privatization. (ATC spinoff opponent Jerry Moran (R-KS) had filed an amendment containing the House spinoff language for the Senate markup, to get committee members on record in bipartisan opposition to the proposal, but was later talked out of offering the amendment.) Thune and Nelson praised all the bills under discussion in the mark up, as well as their respective staffs (who, according to Thune, had Thai food during the all-nighter they had to pull to get the FAA bill ready for the mark up). After those initial statements, all a handful of other bills and nominations were approved by voice vote.

Once the panel turned to the FAA bill, the committee brought up a Thune-Nelson substitute for the entire bill, which was made the base text for further amendments by unanimous consent. At that point, a package of 55 amendments was approved en bloc without debate (see amendment summaries and links to text here). The only amendments discussed individually during the mark up were Thune #1 (with a second degree amendment by Duckworth (D-IL)) on the requirements on the number of training hours for commercial pilots, and Fischer (R-NE) #2, on trucking rest rules.

Most of markup time was spent discussing Thune #1. This amendment would allow the FAA to determine that certain professional and academic courses can count towards the 1,500 hours that prospective pilots now have to accrue before becoming commercial pilots. To count, those courses would need to be approved by the FAA. The amendment comes after criticism that people were accruing hours just for the sake of getting to the 1,500 hours, but that the quality of those hours was not exactly very high.

Under the Thune amendment, structured and disciplined courses could count to those hours, even there was no actual flying involved. Nelson said that this was the issue that the committee was getting difficult to agree on, and they want to reach a compromise. Aviation Subcommittee chairman Roy Blunt (R-MO) agreed that this was indeed the one issue were they didn’t agree, and while he supports the amendment, he wants to do further work on the matter. He also stressed that what matters is the quality of the 1,500 hours, not the 1,500 themselves.

Duckworth offered an substitute amendment to Thune #1 to leave the 1,500 hour rule intact and express the sense of Congress that it should stay that way. She said that under the Thune amendment, the FAA Administrator could accept all sorts of training (she gave an example of watching a video being played in a hotel ballroom counting towards the 1,500 hours, but Thune mis-heard her and thought she said barroom and took offense). While she agreed that regional air service needs to be promoted, that should not happen by first degrading training.

While Aviation Subcommittee ranking member Maria Cantwell (D-WA) urged the panel to push the issue aside until an agreement could be reached, a vote was held nonetheless. Duckworth second degree amendment was rejected on a 14-13 roll call vote, while Thune #1 was approved in a voice vote.

(In the House markup, Rep. Sam Graves (R-MO) offered an amendment similar to Thune’s but withdrew it when it became clear that it would not pass.)

Nelson said during the markup that Senate Minority Leader Chuck Schumer (R-NY) had told him to tell Thune that he would use all procedural shenanigans in his power to prevent the FAA bill from coming to the Senate floor if it amends the 1,500 hour rule in a way that is unacceptable to him. (The 1,500 hour rule was instituted in 2010 as a response to the Colgan Air crash in Schumer’s home state of New York.) Further work may have to be done on this issue before the bill goes to the Senate floor.

Next, Senator Fischer offered her amendment #2 to expressly prohibit any state or local government from enacting any law relating to meal or rest breaks for truckers subject to federal hours of service requirements – the latest round in a long-simmering drama related to a California law mandating certain meal and rest breaks for truckers and a 2014 Ninth Circuit Court of Appeals decision which held that a federal law passed in 1994 does not overrule California state law in this regard.

(Ed. Note: You may ask, what is trucking provision doing in an aviation bill? Answer: the underlying trucking law was first enacted as title VI of the 1994 FAA reauthorization act for some reason now lost in the sands of time. Also, remember that federal preemption of state trucking laws unrelated to safety was a top priority of President Clinton – read his remarks upon signing the bill into law, where he said that preempting non-safety state trucking laws would be “not only a significant addition to our economic stimulus program, it will also save consumers billions of dollars every year.”)

Efforts to undo the California law and the Ninth Circuit’s interpretation have bedeviled transportation legislation since 2014. The House version of what became the FAST Act of 2015 had a provision overturning the California meal break and trucker wage laws (see section 1446 here), but the provision was dropped in House-Senate conference after several heated conversations between House Transportation chairman Bill Shuster (R-PA) and Senate Public Works ranking member Barbara Boxer (D-CA), with Boxer threatening to kill the entire bill if the provision was included. And the House version of last year’s Transportation-Housing appropriations bill included a provision that preempted the California laws, phrased differently (see section 134 here), but that was dropped in conference as well.

While Thune tried to move Fischer’s amendment quickly to a vote, Nelson requested explanations on what the amendment was. After Fischer provided a quick overview, Sen. Maggie Hassan (D-NH) replied that this was a premature time and not the best bill to address the issue, and that more complete debate was needed. The amendment was approved by a voice vote, indicating that the fix was in. (The Fischer amendment only preempts meal and rest break laws, not other state laws.)

The entire FAA bill was then approved by voice vote. Before the committee adjourned, however, Senators Cory Booker (D-NJ), Amy Klobuchar (D-MN), Dan Sullivan (R-AK), Jim Inhofe (R-OK), and Cantwell still had things to say.

Booker discussed his withdrawn amendment #5 which would prohibit government employees, starting in 2020, from flying on airlines that have contracted with companies that have been in violation of labor laws in the last 2 years. Klobuchar also discussed a withdrawn amendment of hers, amendment #1, which would subject cargo airlines to the more stringent crew rest rules that passenger airlines have to follow (an amendment which the cargo airlines naturally don’t want to see enacted).

Sullivan talked about the importance of the Essential Air Service, and how important was the bill keep funding for it at $175 million per year. Inhofe, a rookie on the committee, noted how impressed he was with staff on both sides, and highlighted the six major provisions in the bill aimed at general aviation (GA), namely the “Fairness for Pilots Act”, which gives GA pilots more rights to appeal a revoked license, and the “FLIGHT Act”, which allows a smaller local match (5%, down from 10%) for some projects in GA airports.

Finally, Cantwell mentioned the provisions on flight attendant rest, which gives them the same periods of rest as pilots. She also noted that the House bill is slightly different on this regard, which needs to be addressed (the difference is that, while both bills mandate a maximum of 14 hours of work and a minimum of 10 hours of rest, the House bill gives no exception to those rules, while the Senate bill allows a 9-hour rest period if the next rest period is 11 hours or more).

House markup. The June 27 House markup of H.R. 2997 started at 10 a.m. and lasted until 7:24 p.m. But the eventual outcome was never in doubt – the fact that Rep. Sam Graves (R-MO), who voted against a very similar bill last year, was an original cosponsor of the revised bill indicated that chairman Shuster would have the votes.

Shuster, in his opening statement, said that his bill is forward-looking legislation that gets Washington out of the way of aviation innovation. He also emphasized that the new bill has improved from last year’s version, and that spinning off air traffic control from the FAA is a good non-partisan idea, not a Republican or Democrat idea, as both sides of the aisle have proposed similar reforms before.

T&I ranking minority member Peter DeFazio (D-OR) started by saying that if it weren’t for ATC privatization, they would agree on most that is in the bill. He then went on to present his case on why the FAA is doing things right today: $2.7 billion in benefits from NextGen technology already, with $130 billion coming in the next ten years. Also, DataComm has been delivered two years earlier and below budget (What he did not mention was that DataComm was delivered two years earlier because the NextGen Advisory Committee told the FAA to focus on actual delivering something, and that on average NextGen programs are delayed by five years.).

DeFazio stated that electronic flight strips are being developed and will be the most advanced in the world, and the U.S. is one of only two countries (the other being Australia) with a nationwide ADS-B network. On this last point, DeFazio argued that ADS-B is not being used more because the airlines haven’t equipped their aircraft with the necessary technology (below is a slide he showed with rates of equipage by airline), which they have to do by a 2020 deadline (which they have already asked the FAA to extend). So, he argued, instead of going with ATC privatization, Congress should instead go with DeFazio amendment #45, also known as H.R. 2800.

The first amendment offered was indeed DeFazio #45, which he said solves the real problems of the FAA by keeping it together and taking off-budget. The amendment takes the Airport and Airway Trust Fund off-budget and gives the FAA clear authority to make procurement and personnel reforms without interference from what DeFazio calls “the trolls at OMB” and the Secretary. Shuster replied by noting that DeFazio’s bill clearly demonstrates that there are problems at the FAA. But, Shuster argued, DeFazio’s solution would only make those problems worse, as the FAA will have no accountability. He also noted that Congress has tried these reforms before, they haven’t worked backed then, and won’t work for a second time. The amendment was rejected in a 34 nay, 24 yea vote.

Then came five more amendments (Norton (D-DC) #31 (34 nays-25 yeas), Perry (R-PA) #51 (37-21), Nadler (D-NY) #22 (34-24) E.B. Johnson (D-TX) #16 (33-25), and Larsen (D-WA) #21 (34-24)) which were all rejected. The most heated debate was on Perry #51, which would increase the threshold for prevailing wages regulations (Davis-Bacon) from $2,000 to $150,000 in airport projects. Members argued back and forth on the merits of having such type of rules in place, and whether they protect the interests of employees or not. (Ed. Note: No matter how big the Republican majority in Congress gets, they never seem to have the votes to amend or significantly waive Davis-Bacon.)

On Norton #31 (public interest advocates required on the ATC Board), Shuster argued that the people is already represented in the ATC corporation board by the government nominees, so there was no need for further representation. On Nadler #22 (requiring the ATC corporation pay the US for ATC assets) the usual arguments for and against the transfer of assets for free were heard: the assets were already paid by the travelling public, one side argued, while the other side replied that this was a giveaway of government assets to private interests. DeFazio used an interesting argument: if the company has to be nationalized, either because it goes bankrupt or because the courts say the whole thing is unconstitutional, the government will have to pay for the assets, they cannot be transferred back to the government for free under current law.

Barletta (R-PA) #15 (increasing AIP funding), Davis (R-IL) #26, and Mitchell (R-MI) #14 (ATC Board term limits), were all approved in voice votes without much controversy. Capuano (D-MA) #29 was withdrawn after Capuano, Shuster, and DeFazio agreed on how to deal with noise issues in a better way after the system is privatized. Lewis (R-MN) #10, Lowenthal (D-CA) #17, and Johnson (D-GA) #34 were withdrawn to be worked on later on as well.

Todd Rokita (R-IN), one of the two T&I Republicans to vote against this bill last year, introduced his amendments #20, #21, #22, and #24, gave a 13-minute speech (where he complained about this bill not going far enough in reducing the regulatory burden in the economy and the federal workforce—which, according to him would not be reduced, just shifted to another entity— and also pointed out that in Indiana they gave the Indiana Toll Road concession not for free but for $3.8 billion, and it wasn’t given outright to the truckers), and then withdrew his amendments.

A total of 22 amendments were approved en bloc. Among them was LoBiondo (R-NJ) #20, a late addition to the amendment roster that deals with a hot issue: the “flag of convenience” model that some have accused Norwegian Air of using. By preventing the text of the amendment from being released until the last minute and by including it in the en block vote, it was assured that the amendment would pass with no discussion.

Comstock (R-VA) #18, approved by voice vote, got flak from DeFazio for diverting money from the AIP to an ATC pilot program. Garamendi (D-CA) #19 was praised by Shuster for making clear what he said had already intended to convey in the bill: that the ATC corporation was completely separate from government and was not going to get any Airport and Airway Trust Fund money. It was approved by voice vote as well. Perry #50 (drones transporting property for hire) and Carson (D-IN) #13 (secondary cockpit barriers) were approved by voice vote without dissenting comments.

Norton #33, to prohibit use of some types of electronic cigarettes on airplanes led to some discussion, including another instance of vaping in the chamber by Duncan Hunter (R-CA) (he had done the same, with more dramatic effects, last year). Both Hunter and Shuster argued that the prohibition didn’t make sense because U.S. DOT had already regulated the issue since a similar amendment was passed by T&I last year. The amendment was adopted by a one-vote margin (30 yeas, 29 nays).

On Lipinski (D-IL) #41, which applied Buy America and Davis-Bacon provisions to the ATC corporation, some representatives argued that the amendment was a poison pill to create discord among members, namely among Republicans that have traditionally support the provisions but cannot defend them for a private company. (It failed, 34-24.)

On Cohen (D-TN) #43 (ATC Board/employee conflicts of interest), the author argued that this was similar to what Canada has for its ATC provider. Shuster replied that there are already enough protections on the bill to avoid conflict of interests, and the company would have to develop more of their own, but it didn’t make sense to require a private company to comply with federal guidelines like the ones Cohen was proposing. Cohen’s amendment failed by voice vote, and while he first requested a roll call vote, he later let the voice vote stand in the interest of time.

On Nolan (D-MN) #42 (Essential Air Service), DeFazio and Shuster argued back on forth on the impacts that ATC reform would have on EAS, with DeFazio saying that the bill removes over $100 million per year from the EAS funding pool over 10 years (as it stops using the money coming from overflight fees to fund EAS), and Shuster saying that the amendment is a roadblock for EAS reform. Shuster urged Nolan to withdraw the amendment so that they could work behind the scenes on a solution, but Nolan asked for it to be put to a vote (it failed, 34-25).

DeFazio #53, which was intended to stop the ATC corporation from subsidizing the purchase ADS-B equipment (needed for satellite tracking) for the airlines or to change the 2020 deadline for ADS-B equipage was also rejected (34-25). DeFazio argued that ADS-B is a project that the FAA has actually delivered, but it can’t be used until everybody has equipped, so we can’t have the airlines asking for an extension. Sam Graves noted that even if we use all available resources at repair stations it is now impossible to equip all aircraft by 2020, so the extension will come whether we want it or not. Shuster noted that the corporation won’t have regulatory authority, so if anyone extends the deadline it would have to be the FAA. The amendment was rejected, 34-25.

Titus (D-NV) #13 (minimum controllers salaries) and Huffman (D-CA) #56 (climate change) were also rejected – Titus by a vote of 34-25, Huffman by a vote of 32-27.

After a recess, the last third of the markup before the final vote on the bill had a couple of interesting moments, including an out-of-order speech by Sam Graves on how he stopped worrying and came to love ATC reform.

Another 11 amendments were approved en bloc, adding to the 22 that had been approved earlier in the same fashion.

Perhaps the biggest surprise of the evening came on Lipinski #27, which requires “large ticket agents”, i.e., your on-line travel agencies and the like, to offer the same consumer protections as if you bought a ticket directly with an airline. Shuster opposed the amendment, but it ended up passing with 38 yeas and 18 nays. Lipinski was not as lucky with his other amendment (#39, requiring mandatory hotel stays at airline expense after a delay of more than 3 hours) was rejected by in a 46-8 vote.

On DeFazio #51 (rejected by 33-23), which would have repealed a 2012 provision that stops the FAA from imposing restrictions on lithium batteries that are more stringent that international norms, DeFazio argued that this 2012 provision enshrined into law an old “tombstone mentality”, in which government only takes action after people die. He also argued that the provision stopped the FAA from being a world leader, and instead made it follow the lowest common denominator of international norms. Bruce Westerman (R-AR) argued back, saying that the provision is a balanced approached that still allows the Secretary to issue more stringent regulations if a safety case is made. Additionally, DeFazio’s amendment would put too much power in FAA hands, when this is a multimodal concern.

Lowenthal #18 as revised was also rejected (30-24). As originally filed, the amendment required the FAA to rewrite its helicopter noise pollution rules over Los Angeles County, but the amendment was revised by Lowenthal so that it apparently applies to New Jersey as well (maybe combined with Sires (D-NJ) #012). Sam Graves opposed it on the basis that it was a slippery slope towards Congressional redesign of airspace.

Titus #11, which would require ATC fees to be listed separately from airfares at the time of ticket purhcase, was opposed by Shuster on the basis that it was unworkable: ATC fees are per-aircraft, not per-passenger, so there is no way to give a correct value for the fee for each passenger. It was rejected in a 33-23 vote. Titus had another rejected amendment (33-23 as well): Titus #12, which would exempt drones from Executive Order 13711, which requires 2 regulations to be repealed to every new regulation enacted. Titus argued that “2 for 1” is a great happy hour special in Las Vegas but we can’t make drone rules wait on that. Shuster opposed on the basis that Congress doesn’t typically legislate exemptions to Executive Orders and that there is presidential discretion implicit in such orders.

Before the final vote, Sam Graves from Missouri, one of the two Republicans that voted against the bill last year (the other was Todd Rokita), gave a speech on why he is now a co-sponsor of the bill. His focus during the last year was to get provisions relating to: no fees on any segment of general aviation, namely parts 91 and 135, GA parity with airlines on the governing board, maintain access to airspace and airports, and ensuring the long term sustainability of AIP.

After that was assured, the question came down to whether he trusted the government or a private entity to run ATC more efficiently. “As a conservative, the answer is an easy one”, Graves said. The reason for that is that the public sector has never been defined by its efficiency and the FAA is no different. Additionally, the FAA is not suited to deliver a capital program like NextGen, because there are too many barriers in the federal government procurement processes. Congressional dysfunction is another barrier, he also added.

After the final vote to approve the amended bill and report it favorably to the House, the committee adjourned. After the markup, Shuster said “I appreciate all the work done today by the Members of the Committee on this legislation that puts the American taxpayers, innovation, jobs, and the traveling public before Washington dysfunction. We thoroughly debated the legislation, considered approximately 80 amendments, approved substantial improvements offered by Members from both sides of the aisle, and voted to move forward to give Americans the safe, efficient, modern aviation system they deserve.”

Links to all House amendments and all roll call votes in committee are here.

We are keeping track of all bills, amendments, statements, etc on our FAA Reform Reference Page, here: www.enotrans.org/faareform